Definitions of law

Schools of law

Types and classification of law

1. Eternal Law: The word eternal means something that would last forever.
Eternal laws have applied since the beginning of time and will exist till the end
of time. These laws cannot be changed. A very good example of eternal law is
the law of gravity. From the inception of time, it has been understood that what
goes up must come down. This law would not be changed and is thus right to be
regarded as eternal.
2. Divine Law: Divine Law is referred to as laws made by a deity to govern the
affairs of man. A good example of divine law can be found in Islamic law as
postulated in the Q’uran. These laws are said to be given by God to the Prophet
Muhammed in order to guide the affairs of man.
The logic behind the use of divine law stems from the fact that God, accepted as
all-knowing and all-wise, is in the best position to make laws for the use of
mankind.
3. Natural Law: In the legal sense, natural law can be said to be law as
espoused by the natural law theorists. This law is said to be the law that is
innate in all mankind and can be deduced through the use of reason. For
example, it is accepted in all cultures that murder is wrong and should be
punished.
Natural law is said to be the guide which positive law must follow in order for it
to be valid. If Positive Law is at variance with natural law, it could lead to
injustice in the society.
4. Positive or Human Law: Positive law can also be regarded as human law.
These are laws made by man to guide the conduct of members of the society.
They are laws made by persons given the authority to do so either directly or
indirectly by the society. Legal positivism doesn’t concern itself with morals.
Once persons in authority have enacted a law, it is valid.
” Law is a command and there is no necessary connection between law and
morals or law as it is and law as it ought to be .

CLASSIFICATION OF LAW
The broad classification of law may be as follows:

International Law
International Law is a branch of law which consists of rules which regulate
relations between States or Nations inter se. In other words International Law is
a body of customary and conventional rules which are considered legally
binding by civilized Nations in their intercourse with each other. International
Law is mainly based on Treaties between civilized Nations. International law
may be divided as follows:

Public International Law

It is that body of rules which governs the conduct and relations of State with
other States. For example, the extradition treaty between two states to bring
back the fugitives.

Private International Law

It means those rules and principles according to which the cases having foreign
elements are decided. For example if a contract is entered into in India between
an Indian and a Pakistan citizen, which is to be performed in Ceylon, then the
rules and regulations on which the rights and liabilities of the parties would be
determined is known as ‘Private International Law’

Municipal Law or National Law

Municipal Law is that branch of Law, which is applied within a State. It can be
divided into two classes.
Public Law

It regulates the organization and functioning of the State and determines the
relations of the State with its subjects. It may be divided into three classes:

Constitutional Law

Constitutional Law is the primary or fundamental law of the State. It is a law

which determines the nature of State and the structure of the Government. It is
superior to the ordinary law of the land because ordinary law derives its
authority and force from the Constitutional Law.

Administrative Law

This law deals with the structure, powers and functions of the organs of
administration; the limits of their power; the methods and procedure followed
by them in exercise of their power; the methods by which their powers are
controlled, including remedies available to a person against them when his/her
rights are infringed by their operation.

Criminal Law

It defines offences and prescribes punishment for them. Its aim is the prevention
of and punishment for offences because in civilized societies, ‘crime’ is
considered to be a wrong not against the individual but against the society.

Private Law

This branch of law regulates and governs the relations of citizens with each
other. It includes Personal Law e.g. Hindu Law and Muslim Law.

Other varieties of law

Apart from these kinds of law, there are some other varieties of law as follows:

Natural or Moral Law

Natural Law is based upon the principle of right and wrong. It embodies the
principles of Natural Justice.

Conventional Law
Conventional Law means any rule or system of rules agreed upon by persons
for regulation of their conduct towards each other. For example, Indian Contract
Act, 1872 deals with the rules on making agreements.

Customary Law
Any rule of action which is actually observed by men/women when a Custom is
firmly established, is enforced by the State as law because of its general
approval by the people.

Civil Law
The Law enforced by the State is called Civil Law. The force of State is the
sanction behind this Law. Civil Law is essentially territorial in nature as it
applies within the territory of the State concerned.

Substantive Law
Substantive Law deals with rights and obligations of the individuals against the
State and prescribes the offences and punishments for the commission of such
offences. For example, India Penal Code, 1860 contains 511 Sections on various
offences and corresponding punishments for those offences.

Procedural Law
It deals with the practice and procedure having its objective to facilitate the
administration of justice. It is a process necessary to be undertaken to enforce
the legal rights and liabilities of the litigating parties by a Court of Law. For
example, the Criminal Procedure Code, 1973 enshrines the procedures to be
followed to inflict punishment on the wrongdoer.

Sources of law

Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in the field
of jurisprudence, classified the sources of law into mainly two categories,i.e.,
material sources and formal sources.
Material sources

Material sources of law are those sources from which the law gets its content or
matter, but not its validity. There are two types of material sources: legal and
historical.

Legal sources

Legal sources are the instruments used by the state which create legal rules.
They are authoritative in nature and followed by courts of law. These sources or
instruments permit newer legal principles to be created. According to Salmond,
legal sources of English law can be further classified into four categories-

● Legislation,

● Precedent,

● Customary law, and

● Conventional law.

Historical sources

Historical sources influence the development of law without giving effect to its
validity or authority. These sources influence legal rules indirectly. The
difference between legal and historical sources is that all laws have a historical
source but may or may not have a legal one. Decisions given by foreign courts
serve as an example for this kind of source.

Formal sources

Formal sources of law are the instruments through which the state manifests its
will. Statutes and judicial precedents are the modern formal sources of law. Law
derives its force, authority, and validity from its formal sources.

According to Keeton, the classification given by Salmond was flawed. Keeton

classified sources of law into the following:

Binding sources

Judges are bound to apply such sources of law in cases. Such sources include
statutes or legislation, judicial precedents, and customs.
Persuasive sources

Persuasive sources are not binding but are considered when binding sources are
not available for deciding on a particular subject. Such sources include foreign
judgements, principles of morality, equity, justice, professional opinions, etc.

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the
government. It is one of the most important sources of law in jurisprudence. The
word legislation is derived from the words legis and latum, where legis means
law and latum means making.

Types of legislation

According to Salmond, legislation can be classified into two types- Supreme

and Subordinate.

1. Supreme legislation
Legislation is said to be supreme when enacted by a supreme or sovereign law-
making body. The body must be powerful to the extent that the rules or laws
enacted by it cannot be annulled or modified by another body. Indian
Parliament cannot be said to be a sovereign law-making body as the laws passed
by the parliament can be challenged in the courts. On the other hand, the British
Parliament can be said to be a sovereign law-making body since the validity of
laws passed by it cannot be challenged in any court.

2. Subordinate legislation
Legislation enacted by a subordinate law-making body is said to be subordinate
legislation. The subordinate body must have derived its law-making authority
from a sovereign law-making body. It is subject to the control of the supreme
legislative body. The following are the different kinds of subordinate
legislation:

● Executive legislation: This is a form of subordinate legislation where

the executive is granted or conferred certain rule-making powers to
carry out the intentions of the legislature.
● Colonial legislation: Many territories across the globe were colonised
by Britain and such territories were called colonies. The legislation
passed by the legislature of such colonies was subject to the control of
the British Parliament.
 ● Judicial legislation: Courts also have a role in enacting laws that aid
in regulating the internal affairs and functioning of courts.
● Municipal legislation: Municipal authorities also possess the law-
making power as they enact bye-laws.
● Autonomous legislation: Another kind of legislation is autonomous
legislation, which is concerned with bodies like universities,
corporations, clubs, etc.
● Delegated legislation: Sometimes legislative powers may be
delegated to certain bodies by the parliament through principal
legislation. A principal act may create subsidiary legislation that can
make laws as provided in the principal legislation.
Custom as a source of law
Custom refers to the code of conduct that has the express approval of the
community that observes it. In primitive societies, no institutions acted as
authority over the people. This led to people organising themselves to form
cohesive groups in order to maintain fairness, equality, and liberty. They started
developing rules with coordinated efforts to make decisions. They eventually
started recognising the traditions and rituals practised by the community
routinely and formed a systematised form of social regulation. In India, laws
relating to marriage and divorce are mostly developed from customs followed
by different religious communities. Additionally, several communities
belonging to the Scheduled Tribes category have their own customs related to
marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has
exempted Scheduled Tribes from the application of this Act.

Requisites of a valid custom

1. Reasonability: The custom must be reasonable or practical and must

conform with the basic morality prevailing in the modern-day society.
2. Antiquity: It must have been practised for time immemorial.
3. Certainty: The custom must be clear and unambiguous on how it
should be practised.
4. Conformity with statutes: No custom must go against the law of the
land.
5. Continuity in practice: Not only the custom must be practised for
time immemorial, but it should also be practised without interruption.
 6. Must not be in opposition to public policy: The custom must adhere
to the public policy of the state.
7. Must be general or universal: There must be unanimity in the
opinion of the community or place in which it is practised. Hence, it
should be universal or general in its application.

Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to that of

Themistes or judgments”. Themistes refers to the judicial awards dictated to the
King by the Greek goddess of justice. The following are the different stages of
development of law according to Henry Maine:

1. At the first step, law is made by rulers who are inspired by the divine.
Rulers were believed to be messengers of God.
2. At the second stage, following rules becomes a habit of the people and
it becomes customary law.
3. At the third stage, knowledge of customs lies in the hands of a
minority group of people called the priestly class. They recognise and
formalise customs.
4. The final stage is the codification of customs.

Types of customs

1. Customs without a binding obligation

There are customs that are followed in society that do not have a legal binding
force. Such customs are related to clothing, marriage, etc. Not abiding by such
customs can only result in a social boycott and not legal consequences.

2. Customs with a binding obligation

Customs that are meant to be followed by law are called customs with a binding
obligation. They are not related to social conventions or traditions. There are
mainly two types of customs with binding obligations- Legal customs and
Conventional customs.

1. Legal customs: Legal customs are absolute in sanction. They are

obligatory in nature and attract legal consequences if not followed.
Two types of legal customs are general customs and local customs.
General customs are enforced throughout the territory of a state. Local
customs on the other hand operate only in particular localities.
 2. Conventional customs: Conventional customs are those customs that
are enforceable only on their acceptance through an agreement. Such a
custom is only enforceable on the people who are parties to the
agreement incorporating it. Two types of conventional customs are
general conventional customs and local conventional customs. General
Conventional Customs are practised throughout a territory. Local
Conventional Customs on the other hand is restricted to a particular
place or to a particular trade or transaction.

Purpose of law
Concept of morality
Law and morals are the systems which govern the behaviour of individuals in
society. Laws are rules and regulations which are sanctioned by the authority
and are compulsory to follow. While morals are the standards of behaviour that
individuals should follow in order to live peacefully with acceptability but they
are not compulsory like law. These two concepts have a complex relationship
which has evolved over time. In ancient times, law and morality were seen as
similar concepts but with time and development, it has been clarified that these
two are different but interdependent concepts.

RELATIONSHIP BETWEEN LAW AND MORALITY

1) Moral as the origin of law

In ancient times there was no clear distinction between law and morality. And
due to this lack of distinction, the origin of every law was found in the
principles which people thought as morally correct. In the end, the state selected
those morally correct principles and made them into laws, thus
forming similarities between law and morality. For example, It is morally
wrong to commit theft or robbery, the state gave this moral the form of law.
Even though the distinction between law and morals has been put forth, morals
form an integral part of the law. Most of the laws have some or the other
principles of morality.

2. Moral as the test of law

Many Jurists are of the opinion that those laws which do not follow morality
must be removed, as the end purpose of every law is to impart justice and
ensure the welfare of the people.

While making any law it always has to be seen that, whether it is in consonance
with moral values or not, if it doesn’t follow the moral standards it should be
removed.

3. Morality as the end of the law

Laws were made to serve the purpose of creating a society having the elements
of fairness, justice and equality. Laws were made to provide justice to a person
who suffered from something wrong. And on the other hand, morality provided
certain standards to sustain some order in society with fewer conflicts. In other
words, morality's object is to remove societal conflicts. Thus we can see, that
the main object of law and morality is the same making both concepts related to
each other.

INDIAN LEGAL SYSTEM

Introduction
Law is a set of obligations and principles imposed by the government for
securing welfare and providing justice to society. India’s legal framework
reflects the social, political, economic, and cultural components of society. The
common law system garnered its roots throughout the history of the legal
system in India. The main sources of law in India are the Constitution, statutes,
customary law and the judicial decisions of superior courts. The laws passed by
parliament may apply throughout all or a portion of India, whereas the laws
passed by state legislatures normally apply within the borders of the states
concerned.

History of Indian legal system

Judicial system during the Ancient Hindu Period

The Vedic, Bronze, and Indus Valley civilizations all contributed to the legal
judiciary system in India. The first known source of law in India was classical
Hindu law. “Dharma” deals with legal and religious duties. The main sources of
Hindu Law or “Dharma” are Veda, Smriti, and Aâchâra.

Rigveda, Yajurveda, Samaveda, and Atharvaveda are the four Vedas. Vedas
consisted of hymns, praises, customs, and religious obligations.

Smritis defined obligations, practices, and teachings of religion that an

individual needs to practise in society. ‘Dharmashastra’ is a Smriti and one of
the primaeval legal texts written in Sanskrit, containing information such as the
principles of law, duties of the king, manner of evidence, and witnesses. The
king was in command and was counselled by his ministers. The legal procedure
was Vyavahāra under Hindu law. The stages of legal practice were: the plaint,
the reply, the trial, and the decision. Manusmriti (200 BC – 200 CE),
Yajnavalkya Smriti (200 – 500 CE), Naradasmriti (100 BC – 400 CE), Vishnu
Smriti (700 – 1000 CE), Brhaspatismriti ( 200 – 400 CE) and Katyayanasmriti
(300 – 600 CE) are some of the prominent Smritis from Dharmashastra texts
that were used as precedents. “Manusmriti” is the ancient set of rules that binds
a person by specific responsibilities and obligations. The framework of the
judicial system was constructed throughout the era of dynasties to solve various
civil and criminal issues.

‘Achâra’ was the customary norm of a particular society. Achâra was used in
matters where Vedas and Smritis were silent.

Law and judicial system during the Mughal Empire

During the reign of the Mughal Empire, Mahakuma-e Adalat was found to
provide justice to the people. Quran, Sunna and Hadis, Ijma, and Qiyas were the
primary sources of Muslim law. Fiqh-e-Firoz Shahi and Fatwai-i-Alamgiri
were the principles governing the judicial procedure. The hierarchy of the
judicial system was classified into:

At capital level

The Emperor’s Court was the capital’s highest court, presided by the emperor. It
had subordinate courts, Chief Court, and Chief Revenue Court. The Chief Court
dealt with the original, appellate civil, and criminal cases, whereas the cases
related to revenue matters were dealt with by Chief Revenue Court. The Delhi
Court of Qazi and the Qazi-e-Askar Court are the two types of ChiefCourtst.
The Court of Qazi of Delhi regulated the local civil & criminal case,s and the
Court of Qazi-e-Askarhandledd military issues of the capital.

At state level

The Governor’s Court and Bench or Adalat-e-Nazim, the cases at the state level
are classified into Chief Appellate Court and Chief Revenue Court. The Chief
Appellate Court was in charge of the state’s civil and criminal matters, while the
Chief Revenue Court was in order of the state’s revenue issues.

At district level

The district level was managed and supervised by Chief Civil and Criminal
Court. It was classified into District Qazi Court for regulating civil and criminal
cases, Faujdari Adalat for handling state security, Kotwali for holding petty
criminal cases, and Amalguzari Kachari for controlling revenue cases.

At Parganas level

At the Parganas level, a group of villages or the surrounding areas were

governed by Adalat-e-Pargana, headed by Qazi-e-Pargana, regulating civil and
criminal cases, Kotwali regulated petty criminal cases and Amin-e-Parganah
dealt with revenue matters.

At village level

At the village level, the panchayat handled civil and criminal cases. The
president of the village panchayat was the sarpanch and the rest of the members
were elected by the villagers.
Indian legal system during the British reign

The East India Company established the judicial system in India during the
British era by creating Mayor’s Courts in Madras, Bombay, and Calcutta
formulated under the Charter of 1726 and governed under the common law.
During the Mayor’s Court’s regulation, certain constraints were discovered. It
lacked details on the kind of law it would regulate and since the English law
was the main source of law, in certain instances, it neglected personal and
customary laws. By the Charter of 1753, mayor courts were re-established and
brought under the regulating authority of the Governor and the Council. The
Council of Privy was the highest court of appeal.

The judicial system was separated into District Diwani Adalats for civil cases
and District Fauzdari Adalats for criminal matters and the Supreme Court at
Calcutta was established under the Regulating Act of 1773 AD under Warren
Hastings’ administration (1772-1785 AD).

The District Faujdari Court was abolished during the reign of Cornwallis (1786-
1793 AD), and the Circuit Court and Mal Adalats were established. Sadar
Nizamat Adalat was relocated to Calcutta and placed under the administration
of the Governor-General and members of the Supreme Council, assisted by
Chief Qazi and Chief Mufti. A district judge presided over the District Diwani
Adalat, which was renamed District, City, or Zila Court. He also established
civil courts for both Hindus and Muslims, such as the Munsiff Court, the
Registrar Court, the District Court, the Sadar Diwani Adalat, and the King-in-
Council.

Several commissions of the law were published under the reign of William
Bentinck (1828-1835 AD) in the form of the Civil Procedure Code of 1859,
the Indian Penal Code of 1860, and the Criminal Procedure Code of 1861, and
various guidelines addressing particular matters and circuit courts were
abolished.

Introduction to the Government of India Act, 1935

Government of India Act, 1935 was passed by the Parliament of the United
Kingdom. It defined the characteristics of the government from “unitary” to
“federal”. Powers were dispersed between centre and state to avoid any
disputes. In 1937, Federal Court was established and had the jurisdiction of
appellate, original and advisory. The powers of Appellate Jurisdiction extended
to civil and criminal cases whereas the Advisory Jurisdiction was extended with
the powers to Federal Court to advise Governor-General in matters of public
opinion. The Federal Court operated for 12 years and heard roughly 151 cases.
The Federal Court was supplanted by India’s current Apex Court, the Supreme
Court of India.

Types of laws in the Indian legal system

The Constitution of India, 1950 is the foremost law that deals with the
framework of the codes, procedures, fundamental rights and duties of citizens
and powers, and duties of government. The laws in India are interconnected
with each other forming a hybrid legal system. The classification of laws in the
Indian judiciary system:

Criminal Law

Criminal law is concerned with laws pertaining to violations of the rule of law
or public wrongs. Criminal law is governed under the Indian Penal Code, 1860,
and the Criminal Procedure Code, 1973. The Indian Penal Code, 1860, defines
the crime, its nature, and punishments whereas the Criminal Procedure Code,
1973, defines exhaustive procedure and punishments of the crimes.

Murder, rape, theft, and assault are all examples of criminal offences under the
law.

Civil Law

Matters of disputes between individuals or organisations are dealt with under

Civil Law. Civil courts enforce the violation of certain rights and obligations
through the institution of a civil suit. Civil law primarily focuses on dispute
resolution rather than punishment. The act of process and the administration of
civil law are governed by the Code of Civil Procedure, 1908. Civil law can be
further classified into Tort law, Family Law, Property Law, and Contract law.

Some examples of civil law are defamation, breach of contract, and a dispute
between landlord and tenant.

Common Law

A judicial precedent or a case law is common law. A law passed by the

Supreme Court will be obligatory upon the courts and within the territory of
India under Article 141 of the Indian Constitution. A common law theory,
Natural justice, often known as “Jus Natural,” encompasses statutory
provisions for justice. Nemo judex in causa sua (Rule against Prejudice), audi
alteram partem (Rule of fair Hearing), and reasoned decision are the rules of
Natural Justice. The doctrine of “Stare Decisis” is the principle for the common
law. It is a Latin word that literally means “to stand by that which is
decided.” The doctrine of Stare Decisis states the obligation of courts to follow
the same principle or judgement established by previous decisions while ruling
a case where the facts are similar. A judgement can override or alter a common
law, but it cannot override or change the statute.

Statutory Law

Statutory legislation refers to any written law approved by a legislative body to

regulate the conduct of its citizens. The Central Government makes laws
through Parliament, the state government makes laws through Vidhan Sabha,
and the Local Government makes laws through municipalities. A bill is
introduced in the legislature and for it to become an act voted upon by the
members of both houses requires the assent of the President. The President of
India has veto powers over his assent.

Structure of the Indian Judicial System

The judiciary system of India regulates the interpretation of the acts and codes,
and dispute resolution, and promotes fairness among the citizens of the land. In
the hierarchy of courts, the Supreme Court is at the top, followed by the High
Courts and district courts.

Supreme Court

The Supreme Court is the apex body of the judiciary. It was established on 26th
January 1950. The formulation of the Supreme Court of India is under Chapter
IV of Part V of the Constitution of India. Article 145 of the Indian
Constitution enshrines the establishment of Supreme Court Rules, 1966. The
jurisdiction of the Supreme Court covers 3 categories: Original (Article 131),
Appellate (Article 133 and Article 134), and Advisory (Article 143).

The Chief Justice of India is the highest authority appointed under Article 126.
The principal bench of the Supreme Court consisted of seven members
including the Chief Justice of India. Presently, the number has increased to
34 including the Chief Justice of India due to the rise in the number of cases and
workload. A Supreme Court judge is contravened from practising in any other
court of law.

An individual can seek constitutional remedies in the Supreme Court by filing a

writ petition under Article 32. A law passed by the Supreme Court will be
obligatory upon the courts and within the territory of India under Article 141 of
the Indian Constitution.

High court

The highest court of appeal in each state and union territory is the High
Court. Article 214 of the Indian Constitution states that there must be a High
Court in each state. The High Court has appellant, original jurisdiction, and
Supervisory jurisdiction. However, Article 227 of the Indian Constitution limits
a High Court’s supervisory power. The Constitution and its powers of a High
Court are dealt with under Articles 214 to 231. In India, there are twenty-five
High Courts, one for each state and union territory, and one for each state and
union territory. Six states share a single High Court. The oldest high court in the
country is Calcutta High Court, established on 2 July 1862.

The appointment of a judge of the High Court is dealt with under Article 217 of
the Constitution. The High Court Judges (Salaries and Conditions of Service)
Act, 1954, deals with the regulations of salaries and services of a High Court
judge.

An individual can seek remedies against violation of fundamental rights in High

Court by filing a writ under Article 226.

District courts

Chapter VI of Part VI of the Indian Constitution deals with subordinate courts.

District Courts regulate matters of justice in a particular area or district chaired
by a District judge. There are 672 district courts all over India. The appellate
jurisdiction of the High court governs the ruling of the district court.

The district courts are divided into the Court of District Judge and the Court of
Sessions Judge.

● Court of District Judge

A Court of District judge deals with cases of civil nature. It vests and exercises
its powers from the Code of Civil Procedure, 1908. It has original and appellate
jurisdiction. The district courts have appellate jurisdiction over subordinate
courts. Section 9 states that the courts have the power to try any case unless
barred from doing it. Section 51 to 54 of the Code of Civil Procedure, 1908
deals with procedure in execution. The civil district courts are categorised in
ascending order, Junior Civil Judge, Principal Junior Civil Judge Court, Senior
Civil Judge Court. The appeal is filed under territorial jurisdiction, pecuniary
jurisdiction, and Appellate Jurisdiction. Additional District Judge or Assistant
District Judge is appointed depending upon the case and workload and has the
same powers as a District Court Judge.

Under the pecuniary jurisdiction, a civil judge can try suits of valuation not
more than Rupees two crore.

Under territorial jurisdiction, Section 16 to 20 of the Code of Civil Procedure,

1908 deals with the territorial jurisdiction of courts. Cases are decided based on
the nature of the property and within the local limits of the jurisdiction.

● Munsiff Courts
Munsiff courts are the lowest rank of courts in a district. It is usually under the
control of the District Court of that region. The pecuniary and territorial
jurisdiction limits are defined by the State Government.

● Court of Session
A Court of Sessions judge deals with criminal matters and is the highest
authority in the district for criminal matters. It vests and exercises its powers
from the Code of Criminal Procedure, 1973. Section 225 to Section 237 deals
with the procedure for trial by a Public Prosecutor before a Court of
Session. Section 29 deals with the sentences by a Chief Judicial Magistrate,
Court of a Magistrate of the first class, and a Magistrate of the second class.

The Session Court is categorised as the court of Chief Judicial Magistrate and
deals with matters punishable by imprisonment for a term exceeding seven
years but cannot be punished with a death sentence. The Court of a Magistrate
of the first class deals with matters punishable for a term of not exceeding three
years or a fine not exceeding ten thousand rupees, or both. A Judicial Magistrate
of the second class deals with matters punishable with imprisonment not
exceeding one year, a fine of one thousand rupees, or both. An Additional
Sessions Judge or Assistant Sessions Judge is appointed depending upon the
case and workload and has the same powers as a Session Court Judge. An
Assistant Session Judge cannot give imprisonment of more than 10 years as
per Section 28(3). The Additional Session judge can exercise the powers of a
Sessions Judge vested into him by any general or special order of the Sessions
Judge according to Section 400.

Section 366(1) of the Code of Criminal Procedure, 1973 lays down that a
Session Court cannot impose a death penalty without the consultation of the
High Court.
 ● Metropolitan courts
Section 16 states that Metropolitan courts are established in metropolitan cities
in consultation with the High Court where the population is ten lakh or
more. Section 29 states that Chief Metropolitan Magistrate has powers as Chief
Judicial Magistrate and Metropolitan Magistrate has powers as the Court of a
Magistrate of the first class.

Form of the Indian Constitution

The Constitution of India has features of both federal and unitary constitutions
and is quasi-federal in nature.

The federal features of the Indian Constitution are:

Division of Powers

The federal system of the Indian Constitution decentralises powers between the
state and the centre. Article 246 under the Seventh Schedule of the Indian
Constitution lays down three lists describing jurisdiction at each level:

1. Union List: The power to make laws is vested in the Parliament of

India. It consists of laws related to national importance such as
defence, foreign relations, Naval, and military.
2. State List: The state government has the right to make laws under this
list. It consists of laws related to public order, public health, sanitation,
agriculture, and transport.
3. Concurrent List: The state government and the Government of India
as a joint have the right to make laws under this list. It consists of laws
related to criminal procedure, trade unions, education, industrial, and
labour disputes.
Article 254 describes the doctrine of repugnancy. In case of any inconsistency
between the laws of Parliament and the laws of the state on the Concurrent List,
the laws of the Parliament will prevail.

Supremacy of the Indian Constitution

The Constitution of India is the supreme pillar of the laws in India. The core
framework of the Indian Constitution cannot be modified or altered. Laws
should be made concerning the Constitution of India. In case of any
inconsistency with the Indian Constitution, the law shall be declared void by the
power of judicial review vested to the High Court and Supreme Court.
In a landmark case of Kesavananda Bharati v. State of Kerala (1973), the
Hon’ble Supreme Court defined the principle of basic structure and held that the
basic structure of the Indian Constitution cannot be changed.

Independent judiciary

The Indian Constitution established the Supreme Court of India as the apex and
independent judiciary to ensure the supremacy of the Indian Constitution. It
regulates the framework of matters such as limits of power of central and state,
fundamental rights and duties, and directive principles of state policy.

Written Constitution

The Constitution of India is the backbone for the rest of the acts. It is the longest
written constitution and it consists of a Preamble, 470 Articles divided into 25
Parts with 12 Schedules.

Rigid Constitution

The Constitution of India is rigid in the provisions mentioned under it. The
process for altering the provisions requires a special majority in the Parliament
and the approval of at least half of the state legislatures.

Dual Government Polity

The Indian Constitution established dual government polity by setting up a

Central and state Government. The Union government regulates the
safeguarding of national issues whereas the state government focuses on
regulating regional and local issues.

Bicameralism

The Indian Constitution established a system of bicameralism. It divides the

legislative body into Lok Sabha (House of the People) and Rajya Sabha
(Council of States). Lok Sabha or the lower house consists of representatives of
people elected through a universal adult franchise whereas Rajya Sabha or the
upper house is a permanent body that cannot be dissolved and is elected by the
legislative members of the state.
The unitary features of the Indian Constitution are:

Single citizenship

People of India enjoy single citizenship irrespective of in which state they

reside. This ensured that the people of India are united as a whole. Articles 5 to
11 under Part II of the Indian Constitution deal with citizenship.

Strong centre

The Central Government has powers over the state government and carries
residuary powers as well. The state government is bound by the laws of the
Central Government.

Single Constitution

The Constitution of India is a uniform constitution that is applied to the whole

of India. It is a framework of duties and powers of central and state government,
fundamental rights and obligations of individuals, and directive principles of
state policy that apply throughout India’s territory.

Appointment of governor

Section 155 states that by the assent of the President the governor of India is
appointed. Section 156 states that the governor must hand over his resignation
to the President.

Emergency powers

The emergency powers are vested with the President under Part XVIII, from
Articles 352 to 360. The emergency is applied in the state of affairs when there
is adversity to the security, sovereignty, unity, or integrity of a state.

Separation of powers

The separation of powers is categorized into 3 branches, legislative, executive,

and judiciary, each has its own powers and responsibilities. The primary goal of
the separation of powers was to prevent the misuse of authority by one organ of
government. This model of separation of powers is known as trias politica. The
idea of this system was inspired by the model of Montesquieu in De l’esprit des
Lois, 1747 (The Spirit of Laws,1747). In India, the separation of powers is not
mentioned anywhere rigidly but can be found in parts of the Indian
Constitution. The details of the three branches are as follows:

Legislature

The legislative body is responsible for the enactment of the law. It comprises of
Lok Sabha, Rajya Sabha, and the President. It regulates the executive and the
judiciary, the other two branches of law. Article 211 lays down restrictions on
the legislature and refrains it from any discussion of the conduct of Judges of
the Supreme Court or of a High Court.

Executive

Part V of Chapter I deals with the executive organ. The executive body is in
charge of government administration and policy execution in accordance with
the principles of natural justice. The executive branch consists of the President
under Article 53(1), the Vice President, the Prime Minister, and the council of
ministers for advice under Article 74 to the President.

Judiciary

The judiciary organ is responsible for the interpretation of the law and aiding
justice in society. It comprises the Supreme Court, High Court, and all other
subordinate courts. Article 50 of Part IV, Directive Principles of State Policy,
establishes the separation of the judiciary and the executive. However, the
executive organ is responsible for the appointment of the judiciary. Article
122 and Article 212 state that courts do not have the power to examine
Parliamentary proceedings and legislative proceedings respectively.

System of checks and balances

The system of checks and balances regulates the prevention of arbitrary and
inconsistency with the powers vested to the organs of the government. The goal
behind the checks and balances system is to guarantee that the branches of
government check and balance each other so that no branch of the government
becomes too authoritative. It promotes efficiency and specialization between the
organs of the government. The judiciary organ has the power to exercise
judicial review over the acts of legislative and executive. The Judiciary must
ensure that it exercises within the limits of the law. The executive organ is
responsible for the appointment and removal of Judges in the judiciary organ
and the executive is answerable to the legislative organ.
General legislative process

1. A draft of a legislative proposal is a bill. A Minister can introduce a

Government Bill or a Private Member can introduce a Private
Member’s Bill in either the Lok Sabha or the Rajya Sabha. To
introduce a bill in the House, a Member-in-Charge must first obtain
approval from the Speaker of the House. This procedure is known
as “first reading”.
2. In case the introduction to the bill is opposed, the speaker may allow a
briefing by the members opposing it. When a bill is objected to on the
ground that it exceeds legislative power, the speaker may allow a
discussion and voting in the House.
3. After being introduced in the parliament, a bill is usually published in
the public gazette. Under certain conditions, a bill can be published in
the public gazette without being introduced in the house with the
speaker’s approval. The committee may seek expert advice or public
opinion, but it must ensure that the general principles and provisions
are taken into consideration while drafting the report and submitting it
to the House after completion.
4. There are two steps to the second reading stage. The first stage
consists of a discussion of the bill’s underlying principle. It is up to the
House to recommend the bill to a Select Committee or Joint
Committee, circulate it for public opinion, or pass it. When a bill is
issued for public input, it is not authorized to move it for a motion of
consideration. The second stage consists of examining the Bill clause
by clause or as reported by a select or joint committee. The applicable
amendments that are moved but not withdrawn are voted on. If the
amendments obtain a majority of votes, they form part of the law.
5. The Member-in-Charge can move the bill for the third stage once the
second stage is completed. At this stage, the debate about whether the
Bill should be supported or opposed takes place.
6. After a Bill has been passed in one House, it is sent to other house for
consensus and goes through the above-mentioned stages with the
exception of the introduction stage. If one house passes a bill but the
other rejects it, or the houses reject the bill’s amendments, or more
than six months have passed from the date of receipt of the bill by one
house, the president may call a joint sitting of the two houses to
resolve the stalemate. The bill is considered to be passed by both
Houses if a majority of the total number of members of both Houses
vote in favour of it and its amendments. However, there cannot be a
joint sitting for amendment in the Constitution.
 7. Ordinary bills require only a simple majority. Each house must vote
with a majority of not less than two-thirds of the members present in
order to revise the constitution.
8. After the Houses of Parliament have passed a bill, it is delivered to the
President for his approval. After the President signs a bill into law, it
becomes an act.
Issues with the Indian legal system
One of the most crucial challenges with the Indian judicial system is the delay
of cases. The major source of pendency is the increasing number of new cases
and the slow rate at which they are resolved. Over 4.7 crore lawsuits are
pending in courts at all levels of the judiciary as of May 2022. Nearly 1,82,000
cases have been outstanding for more than 30 years, with 87.4 per cent in
subordinate courts and 12.4 per cent in High Courts. According to data from
the Department of Justice’s National Judicial Data Grid database, courts
recorded a 27 per cent increase in pendency between December 2019 and April
2022. Presently, there is an inadequate number of judges available to resolve
disputes. Statistics of the Department of Justice show that there are 400
vacancies with a working force of 708 as of June 2022 for the Judges in the
Supreme Court of India and the High Courts which is not sufficient to clear the
backlog of pending cases in India.

Reforms needed in the Indian legal system

With the country’s fast development, there is an urgent need to reform the
judicial system as well. There is a legal maxim that says justice delayed is
justice denied. It is the basis for the right to a quick trial and equality of
treatment intended to improve the legal system because of the aggrieved party
who experienced the injury hopes for fast and efficient redressal of the dispute.
The legal issues are resolved too slowly either because the cases are too
complex, the existing system is too complex, or due to the overburden of
multiple cases. Reforms should strive to improve the administrative functions of
the judiciary in a robust manner. To increase judicial productivity, the Centre
recommended measures such as an increase in the number of working days for
courts, establishing fast-track courts, and establishing Indian Courts and
Tribunal Services (ICTs). The executive branch, local government, various
economic improvements, and administrative reforms must all be considered as
part of a well-coordinated and integrated ancillary reform initiative that ensures
the judicial system’s improvement. Most significantly, judicial changes in the
country will be impossible to accomplish without institutional balance, unity,
and the state’s ability to execute regulatory, supervisory, economic, civil
society, and public democratic control functions.
Conclusion
Throughout history, India’s judicial system has witnessed many changes. The
supreme pillar and core is the Indian Constitution which has established the
operation of the whole justice system in India. The country’s rapid evolution
demands significant reforms in the judicial system as well. The Indian
government is attempting to remove the impediments and backlog. However,
there is still more progress that needs to be made.