Unit 3 Legal Method E-Notes

Chanderprabhu Jain College of Higher Studies
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School of Law
An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
Class : B.A.LL.B First Semester
Paper Code : LLB 101
Subject : Legal Method
UNIT III
BASIC CONCEPTS OF INDIAN LEGAL SYSTEM
COMMON LAW FOUNDTION
Most nations today follow one of two major legal traditions: common law or civil law. The
common law tradition emerged in England during the Middle Ages and was applied within
British colonies across continents. The civil law tradition developed in continental Europe at the
same time and was applied in the colonies of European imperial powers such as Spain and
Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by countries
formerly possessing distinctive legal traditions, such as Russia and Japan, that sought to reform
their legal systems in order to gain economic and political power comparable to that of Western
European nation-states that there is no comprehensive compilation of legal rules and statutes.
While common law does rely on some scattered statutes, which are legislative decisions, it is
largely based on precedent, meaning the judicial decisions that have already been made in
similar cases. These precedents are maintained over time through the records of the courts as
well as historically documented in collections of case law known as yearbooks and reports. The
precedents to be applied in the decision of each new case are determined by the presiding judge.
As a result, judges have an enormous role in shaping American and British law. Common law
functions as an adversarial system, a contest between two opposing parties before a judge who
moderates. A jury of ordinary people without legal training decides on the facts of the case. The
judge then determines the appropriate sentence based on the jury’s verdict. Civil Law, in
contrast, is codified. Countries with civil law systems have comprehensive, continuously updated
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legal codes that specify all matters capable of being brought before a court, the applicable
procedure, and the appropriate punishment for each offense. Such codes distinguish between
different categories of law: substantive law establishes which acts are subject to criminal or civil
prosecution, procedural law establishes how to determine whether a particular action constitutes
a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the
judge’s role is to establish the facts of the case and to apply the provisions of the applicable code.
Though the judge often brings the formal charges, investigates the matter, and decides on the
case, he or she works within a framework established by a comprehensive, codified set of laws.
The judge’s decision is consequently less crucial in shaping civil law than the decisions of
legislators and legal scholars who draft and interpret the codes.
Historical development of English Common Law
English common law emerged from the changing and centralizing powers of the king during the
Middle Ages. After the Norman Conquest in 1066, medieval kings began to consolidate power
and establish new institutions of royal authority and justice. New forms of legal action
established by the crown functioned through a system of writs, or royal orders, each of which
provided a specific remedy for a specific wrong. The system of writs became so highly
formalized that the laws the courts could apply based on this system often were too rigid to
adequately achieve justice. In these cases, a further appeal to justice would have to be made
directly to the king. This difficulty gave birth to a new kind of court, the court of equity, also
known as the court of Chancery because it was the court of the king’s chancellor. Courts of
equity were authorized to apply principles of equity based on many sources (such as Roman law
and natural law) rather than to apply only the common law, to achieve a just outcome. Courts of
law and courts of equity thus functioned separately until the writs system was abolished in the
mid-nineteenth century. Even today, however, some U.S. states maintain separate courts of
equity. Likewise, certain kinds of writs, such as warrants and subpoenas, still exist in the modern
practice of common law. An example is the writ of habeas corpus, which protects the individual
from unlawful detention. Originally an order from the king obtained by a prisoner or on his
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behalf, a writ of habeas corpus summoned the prisoner to court to determine whether he was
being detained under lawful authority. Habeas corpus developed during the same period that
produced the 1215 Magna Carta, or Great Charter, which declared certain individual liberties,
one of the most famous being that a freeman could not be imprisoned or punished without the
judgment of his peers under the law of the land—thus establishing the right to a jury trial. In the
Middle Ages, common law in England coexisted, as civil law did in other countries, with other
systems of law. Church courts applied canon law, urban and rural courts applied local customary
law, Chancery and maritime courts applied Roman law. Only in the seventeenth century did
common law triumph over the other laws, when Parliament established a permanent check on the
power of the English king and claimed the right to define the common law and declare other
laws subsidiary to it. This evolution of a national legal culture in England was contemporaneous
with the development of national legal systems in civil law countries during the early modern
period. But where legal humanists and Enlightenment scholars on the continent looked to shared
civil law tradition as well as national legislation and custom, English jurists of this era took great
pride in the uniqueness of English legal customs and institutions. That pride, perhaps mixed with
envy inspired by the contemporary European movement toward codification, resulted in the first
systematic, analytic treatise on English common law: William Blackstone’s (1723-1780)
Commentaries on the Laws of England. In American law, Blackstone’s work now functions as
the definitive source for common law precedents prior to the existence of the United States.
RULE OF LAW
Origin And Concept Of Rule Of Law
The concept of “Rule of Law" is the building block on which the modern democratic society is
founded. For the successful functioning of the polity it is imperative that there is enforcement of
law and of all contracts based on law. Laws are made for the welfare of the people to maintain
harmony between the conflicting forces in society. One of the prime objects of making laws is to
maintain law and order in society and develop a peaceful environment for the progress of the
people. The concept of Rule of Law plays an important role in this process.
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The term “Rule of Law" is derived from the French phrase 'La Principe de Legality' (the
principle of legality) which refers to a government based on principles of law and not of men. In
a broader sense Rule of Law means that Law is supreme and is above every individual. No
individual whether if he is rich, poor, rulers or ruled etc are above law and they should obey it. In
a narrower sense the rule of law implies that government authority may only be exercised in
accordance with the written laws, which were adopted through an established procedure. The
principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government
authorities. The rule of law has been described as a “rare and protean principle of our political
tradition". The rule of law centrally comprises “the values of regularity and restraint, embodied
in the slogan of “‘a government of laws, not men’". The term Rule of Law does not provide any
thing about how the laws are to be made, or anything specific like the Fundamental Rights or the
Directive principles or equality etc. but it provides for two basic concepts that is Law must be
obeyed by the people and that the law must be made in such a way that it is able to guide the
behaviour of its subjects. Different legal theorists have different approaches towards the concept
of Rule of Law. Some believe that the rule of law has purely formal characteristics, meaning that
the law must be publicly declared, with prospective application, and possess the characteristics
of generality, equality, and certainty, but there are no requirements with regard to the content of
the law. While other legal theorists believe that the rule of law necessarily entails protection of
individual rights. Within legal theory, these two approaches to the rule of law are seen as the two
basic alternatives, respectively labeled the formal and substantive approaches.
The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge in the reign of
Henry III in a way introduced the concept of Rule of Law without naming it as Rule of Law. He
wrote:
"The king himself ought to be subject to God and the law, because law makes him king."
Edward Coke is said to be the originator of concept of Rule of Law when he said that the king
must be under God and law and thus vindicated the supremacy of law over the pretensions of the
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executives. In India, the concept of Rule of Law can be traced back to the Upanishad. It provides
that Law is the King of Kings. It is more powerful and higher than the Kings and there is nothing
higher than law. By its powers the weak shall prevail over the strong and justice shall triumph.
But the credit for developing the concept of Rule of Law goes to Professor A.V. Dicey who in
his classic book “Introduction to the Study of the Law of the Constitution" published in the year
1885 tried developing the concept of Rule of Law. As per Diecy no man is punishable or can be
lawfully made to suffer in body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary Courts of the land. This establishes the fact that law is
absolutely supreme and it excludes the existence of arbitrariness in any form. According to
Diecy where there is scope discretion there is room for arbitrariness. So Dicey held that every
man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable
to the jurisdiction of the ordinary tribunals.
DICEY'S THEORY of Rule of Law consists of three main principles:
1. Absence of Arbitrary Power or Supremacy of Law: As per Dicey Rule of law means the
absolute supremacy of law and 'no man is punishable or can lawfully be made to suffer in body
or goods except for a distinct breach of law established in the ordinary legal manner before the
courts of the land. Diecy was of the view that all individuals whether if he is a common man or
government authority are bound to obey the law. He is of the view that no man can be punished
for anything else than a breach of law which is already established. And also that the alleged
offence is required to be proved before the ordinary courts in accordance with ordinary
procedure.
2. Equality before Law: As per Diecy Rule of law, in the second principle, means the equality of
law or equal subjection of all classes of people to the ordinary law of the land which is
administered by the ordinary law courts. In this sense rule of law conveys that no man is above
the law. Even the Government Officials are under a duty to obey the same law and there can be
no other special courts for dealing specifically with their matters.
3. Constitution is the result of the ordinary law of the land: As per Diecy , in many countries
rights such as right to personal liberty, freedom, arrest etc are provided by the written
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Constitution of a Country. But in England these rights are a result of the judicial decisions that
have arisen due to the conflict between the parties. The constitution is not the source but the
consequence of the rights of the individuals.
But this principle of Diecy is not applicable in India as in India we consider the Constitution to
be the basic ground work of laws from which all other laws are derived.
COMPONENTS OF RULE OF LAW: Rule of Law is a dynamic concept but it is somewhat

difficult to define. Every person has its own way of defining rule of law some think it to be the
supremacy of law; some think it to be the principles like clarity, universality, stability etc. Due to
all these reasons certain ingredients of Rule of Law have been identified and all which need to
exsist for the concept of Rule of Law to survive.
Common ingredients of Rule of Law are:
a government bound by and ruled by law

equality before the law
the establishment of law and order;
the efficient and predictable application of justice; and
the protection of human rights.
Rule of law in modern era
Today Diecy's theory of rule of law cannot be accepted in its totality. The modern concept of the
rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This
concept was developed by the International Commission of Jurists. Known as Delhi Declaration,
1959 which was latter on confirmed at logos in 1961. According to this formulation- "The rule of
law implies that the functions of the government in a free society should be so exercised as to
create conditions in which the dignity of man as an individual is upheld. This dignity requires not
only the recognition of certain civil or political rights but also creation of certain political, social,
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economical, educational and cultural conditions which are essential to the full development of
his personality".
According to Davis, there are seven principal meanings of the term “Rule of law:
(1) law and order; (2) fixed rules; (3) elimination of discretion; (4) due process of law or
fairness; (5) natural law or observance of the principles of natural justice;
(6) preference for judges and ordinary courts of law to executive authorities and administrative
tribunals; and (7) Judicial review of administrative actions. So finally it may correctly be said
that rule of law does not mean and cannot mean any government under any law. It means the rule
by a democratic law-a law which is passed in a democratically elected parliament after adequate
debate and discussion. Likewise, Sir Ivor Jennings says -
"In proper sense rule of law implies a democratic system, a constitutional government where
criticism of the government is not only permissible but also a positive merit and where parties
based on competing politics or interests are not only allowed but encouraged. Where this exist
the other consequences of rule of law must follow".
SEPRATION OF POWERS
The separation of powers is based on the principle of trias politica. The Doctrine of Separation
of Power is the forerunner to all the constitutions of the world, which came into existence since
the days of the “Magna Carta”. Though Montesquie u was under the erroneous impression that
the foundations of the British constitution lay in the principle of Separation of Power, it found its
genesis in the American Constitution. Montesquieu had a feeling that it would be a panacea to
good governance but it had its own drawbacks. A complete Separation of power without
adequate checks and balances would have nullified any constitution. It was only with this in
mind the founding fathers of various constitutions have accepted this theory with modifications
to make it relevant to the changing times. The Doctrine of “Separation of Powers”, a vintage
product of scientific political philosophy is closely connected with the concept of “judicial
activism”. “Separation of Powers” is embedded in the Indian Constitutional set up as one of its
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basic features. In India the fountain-head of power is the Constitution. The sovereign power has
been distributed among the three-wings:
-Legislature -Executive -Judiciary
The doctrine of separation of powers envisages a tripartite system. Powers are delegated by the
Constitution to the three organs, and delineating the jurisdiction of each.
The position in India is that the doctrine of separation of powers has not been accorded a
constitutional status. In the Constituent Assembly there was a proposal to incorporate this
doctrine in the Constitution but it was knowingly not accepted and as such dropped. Apart from
the directive principles laid down in Article 50 which enjoins separation of judiciary from the
executive, the constitutional scheme does not embody any formalistic and dogmatic division of
powers.
Historical Background
The tripartite model of governance has its origin in Ancient Greece and Rome. Though the
doctrine is traceable to Aristotle but the writings of Locke and Montesquieu gave it a base on
which modern attempts to distinguish between
legislative, executive and judicial power is grounded. The doctrine may be traced to ancient and
medieval theories of mixed government, which argued that the processes of government should
involve the different elements in society such as monarchic, aristocratic, and democratic
interests. The first modern formulation of the doctrine was that of the French writer Montesquieu
in De l’esprit des lois (1748), although the English philosopher John Locke had earlier argued
that legislative power should be divided between king and parliament.
Locke distinguished between what he called:
Discontinuous legislative power
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Continuous executive power
Federative power.
He included within ‘discontinuous legislative power’ the general rule-making power called into
action from time to time and not continuously. ‘Continuous executive power’ included all those
powers, which we now call executive and judicial. By ‘federative power’ he meant the power of
conducting foreign affairs. Montesquieu’s division of power included a general legislative power
and two kinds of executive powers; an executive power in the nature of Locke’s ‘federative
power’ and a ‘civil law’ executive power including executive and judicial power.
It was Montesquieu who for the first time gave it a systematic and scientific formulation in his
book ‘Esprit des Lois (The Spirit of the laws) published in the year 1748. Locke and
Montesquieu derived the contents of this doctrine from the developments in the British
constitutional history of the 18th Century. In England after a long war between the Parliament
and the King, they saw triumph of Parliament in 1688, which gave Parliament legislative
supremacy culminating in the passage of Bill of Rights. This led ultimately to a recognition by
the King of legislative and tax powers of the Parliament and the judicial powers of the courts. At
that time, the King exercised executive powers, Parliament exercised legislative powers and the
courts exercised judicial powers, though later on England did not stick to this structural
classification of functions and changed to the parliamentary form of government.
After the end of the war of independence in America by 1787 the founding fathers of the
American constitution drafted the constitution of America and in that itself they inserted the
Doctrine of separation of power and by this America became the first nation to implement the
Doctrine of separation of power throughout the world.
The constituent Assembly Of France in 1789 was of the view that “there would be nothing like a
Constitution in the country where the doctrine of separation of power is not accepted”. In
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France, where the doctrine was preached with great force by Montesquieu, it was held by the
more moderate parties in the French Revolution. However the Jacobins, Napoleon I and
Napoleon III discarded the above theory for they believed in the concentration of power. But it
again found its place in the French Constitution of 1871.
Later Rousseau also supported the said theory propounded by Montesquieu. England follows the
parliamentary form of government where the crown is only a titular head. The mere existence of
the cabinet system negates the doctrine of separation of power in England as the executive
represented by the cabinet remains in power at the sweet will of the parliament.
In India under the Indian constitution there is an express provision under article 50 of the
constitution which clearly states that the state should take necessary steps to separate judiciary
from the executive i.e. independence of judiciary should be maintained.
Montesquieu’s Theory
According to this theory, powers are of three kinds: Legislative, executive and judicial and that
each of these powers should be vested in a separate and distinct organ, for if all these powers, or
any two of them, are united in the same organ or individual, there can be no liberty. If, for
instance, legislative and executive powers unite, there is apprehension that the organ concerned
may enact tyrannical laws and execute them in a tyrannical manner. Again, there can be no
liberty if the judicial power be not separated from the legislative and the executive. Where it
joined the legislative, the life and liberty of the subject would be exposed to arbitrary control, for
the judge would then be the legislator. Where it joined with the executive power, the judge might
behave with violence and oppression. Writing in 1748, Montesquieu said:
“When the legislative and the executive powers are united in the same person or in the same
body of magistrates, there can be no liberty, because apprehensions may arise, lest the same
monarch or senate should exact tyrannical laws, to execute them in a tyrannical manner. Again
there is no liberty if the judicial power be not separated from the legislative and the executive.
Where it joined with the legislative, the life and the liberty of the subject would be exposed to
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arbitrary control; for the judge would be then a legislator. Where it joined to the executive
power, the judge might behave with violence and oppression.
There would be an end of everything, where the same man or the same body, whether of nobles
or of the people, to exercise those three powers, that of enacting laws, that of executing the
public resolutions and of trying the causes of individuals.”
The theory of separation of powers signifies three formulations of structural classification of

governmental powers:
The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in the Parliament.
One organ of the government should not interfere with any other organ of the
government.
One organ of the government should not exercise the functions assigned to any other
organ.
Now the question in subject is whether this doctrine finds a place in England? In England the
King being the executive head s also an integral part of the legislature. His ministers are also
members of one or other Houses of Parliament. This concept goes against the idea that same
person should not form part of more than one organ of the Government.
In England House of Commons control the executive. So far as judiciary is concerned, in theory
House of Lords is the highest Court of the country but in practice judicial functions are
discharged by persons who are appointed specially for this purpose, they are known as Law
Lords and other persons who held judicial post. Thus we can say that doctrine of separation of
powers is not an essential feature of British Constitution.
Principle of Checks and Balances

The doctrine of separations of powers may be traced back to an earlier theory known as the
theory of mixed government from which it has been evolved. That theory is of great antiquity
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and was adurnbrated in the writings of Polybius, a great historian who was captured by the
Romans in 167 BC and kept in Rome as a Political hostage for 17 years in his history of Rome.
Polybius explained the reasons for the exceptional stability of Roman Government which
enabled Rome to establish a worldwide empire. He advanced the theory that the powers of Rome
stemmed from her mixed government. Unmixed systems of government that is the three primary
forms of government namely, Monarchy, Aristocracy and Democracy – were considered by
Polybius as inherently unstable and liable to rapid degeneration.
The Roman constitutions counteracted that instability and tendency to degeneration by a happy
mixture of principles drawn from all the three primary forms of government. The consuls, the
senate and the popular Assemblies exemplified the monarchical, the aristocratic and the
democratic principles respectively.
The powers of Government were distributed between them in such a way that each checked and
was checked by the others so that an equipoise or equilibrium was achieved which imparted a
remarkable stabiliy to the constitutional structure. It is from the wok of Polybius that political
theorist in the 17th Century evolved that theory of separation of powers and the closely related
theory of Checks and Balances.
Effects
The doctrine of separation of powers as propounded by Montesquieu had tremendous impact on
the development of administrative law and functioning of Governments. It was appreciated by
English and American jurists and accepted by politicians. In his book ‘Commentaries on the
Laws of England’, published in 1765, Blackstone observed that if legislative, executive and
judicial functions were given to one man, there was an end of personal liberty. Madison also
proclaimed: “The accumulation of all powers, legislative and executive and judicial, in the same
hands, whether of one, a few or many and whether hereditary, self-appointed or elective may
justly be pronounced the very definition of tyranny.” The Constituent Assembly of France
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declared in 1789 that there would be nothing like a Constitution in the country where the
doctrine of separation of powers was not accepted.
Importance
The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of
why it is not accepted by a large number of countries in the world. The main object as per
Montesquieu in the Doctrine of separation of power is that there should be government of law
rather that having will and whims of the official. Also another most important feature of the
above said doctrine is that there should be independence of judiciary i.e. it should be free from
the other organs of the state and if it is so then justice would be delivered properly. The judiciary
is the scale through which one can measure the actual development of the state if the judiciary is
not independent then it is the first step towards a tyrannical form of government i.e. power is
concentrated in a single hand and if it is so then there is a cent percent chance of misuse of
power. Hence the Doctrine of separation of power do plays a vital role in the creation of a fair
government and also fair and proper justice is dispensed by the judiciary as there is
independence of judiciary.
Also the importance of the above said doctrine can be traced back to as early as 1789 where The
constituent Assembly Of France in 1789 was of the view that “there would be nothing like a
Constitution in the country where the doctrine of separation of power is not accepted”. Also in
1787 the American constitution inserted the provision pertaining to the Doctrine of separation of
power at the time of drafting of the constitution in 1787.
Defects
Though, theoretically, the doctrine of separation of powers was very sound, many defects
surfaced when it was sought to be applied in real life situations. Mainly, the following defects
were found in this doctrine:
a) Historically speaking, the theory was incorrect. There was no separation of powers
under the British Constitution. At no point of time, this doctrine was adopted in England.
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As Prof. Ullman says: “England was not the classic home of separation of powers.”
It is said: “Montesquieu looked across foggy England from his sunny vineyard in Paris and
completely misconstrued what he saw.”
b) This doctrine is based on the assumption that the three functions of the Government viz
legislative, executive and judicial are independent of distinguishable from one another. But in
fact, it is not so. There are no watertight compartments. It is not easy to draw demarcating line
between one power and another with mathematical precision.
c) It is impossible to take certain actions if this doctrine is accepted in this entirety. Thus, if the
legislature can only legislate, then it cannot punish anyone, committing a breach of its privilege;
nor can it delegate any legislative function even though it does not know the details of the
subject-matter of the legislation and the executive authority has expertise over it; nor could the
courts frame frame rules of procedure to be adopted by them for the disposal of cases. Separation
of Powers, thus can only be relative and not absolute.
d) Modern State is a welfare State and it has to

solve complex socio-economic problems and in this state of affairs also, it is not possible to stick
to this doctrine. Jusice Frankfurter said; “Enforcement of a rigid conception of separation of
powers would make modern Government impossible.”
Strict separation of powers is a theoretical absurdity and practical impossibility. e) The modern
interpretation of the doctrine of Separation of Powers mans that discretion must be drawn
between ‘essential’ and ‘incidental’ powers and one organ of the Government cannot usurp or
encroach upon the essential functions belonging to another organ, but may exercise some
incidental functions thereof. f) Fundamental object behind Montesquieu’s doctrine was liberty
and freedom of an individual; but that cannot be achieved by mechanical divison of functions
and powers. In England, theory of Separation of Powers is not accepted and yet it is known for
the protection of individual liberty. For freedom and liberty, it is necessary that there should be
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Rule of Law and impartial and independent judiciary and eternal vigilance on the part of
subjects.
Indian Outlook
In India, the doctrine of separation of powers has not been accorded a constitutional status. Apart
from the the directive principle laid down in Article 50 which enjoins separation of judiciary
from the executive, the constitutional scheme does not embody any formalistic and dogmatic
division of powers. The Supreme Court in Ram JawayaKapur v. State of Punjab, held:
“Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government have been
sufficiently differentiated and consequently it can be very well said that our Constitution does
not contemplate assumption by one organ or part of the State of functions that essentially belong
to another.”
In Indira Nehru Gandhi v. Raj Narain, Ray C.J.also observed that in the Indian Constitution there
is separation of powers in a broad sense only. A rigid separation of powers as under the
American Constitution or under the Australian Constitution does not apply to India. However,
the Court held that though the constituent power is independent of the doctrine of separation of
powers to implant the story of basic structure as developed in the case of Kesavananda Bharati v.
State of Kerela on the ordinary legislative powers will be an encroachment on the theory of
separation of powers. Nevertheless, Beg, J. added that separation of powers is a part of the basic
structure of the Constitution. None of the three separate organs of the Republic can take over the
functions assigned to the other. This scheme of the Constitution cannot be changed even by
resorting to Article 368 of the Constitution.
In India, not only is there a functional overlapping but there is personnel overlapping also. The
Supreme Court has the power to declare void the laws passed by the legislature and the actions
taken by the executive if the violate any provision of the Constitution or the law passed by the
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legislature in case of executive actions. Even the power to amend the Constitution by Parliament
is subject to the scrutiny of the Court. The Court can declare any amendment void if it changes
he basic structure of the Constitution. The President of India in whom the Executive Authority of
India is vested exercises law making power in the shape of ordinance making power and also the
judicial powers under Article 103(1) and Article 217(3) to mention only a few. The Counsel of
Ministers is selected from the Legislature and is responsible to the Legislature. The Legislature
besides exercising law making powers exercises judicial powers incases of breach of its
privilege, impeachment of the President and the removal of the judges. The Executive may
further affect the functioning of the judiciary by making appointments to the office of the Chief
Justice and other Judges.
Judicial Opinion on the Doctrine of Separation of Powers
The separation of power there were times where the judiciary has faced tough challenges in
maintaining and preserving the Doctrine of separation of power and it has in the process of
preservation of the above said Doctrine has delivered landmark judgments which clearly talks
about the independence of judiciary as well as the success of judiciary in India for the last six
decades.
The first major judgment by the judiciary in relation to Doctrine of separation of power was in
Ram Jawaya v state of Punjab[xxv]. The court in the above case was of the opinion that the
Doctrine of separation of power was not fully accepted in India. Further the view of Mukherjea J
adds weight to the argument that the above said doctrine is not fully accepted in India. He states
that:
“The Indian constitution has not indeed recognize the doctrine of separation of powering its
absolute rigidity but the functions of the different parts or branches of
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the government have been sufficiently differentiated and consequently it can very well be said
that our constitution does not contemplate assumption, by one organ or part of the state, of
functions that essentially belong to another”.
Later in I.C.GolakNath v State of Punjab, SubhaRao, C.J opined that “The constitution brings
into existence different constitutional entitles, namely the union, the state and the union
territories. It creates three major instruments of power, namely the Legislature, the Executive
and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their
respective powers without overstepping there limits. They should function with the spheres
allotted to them”
The above opinion of the court clearly states the change in the courts view pertaining to the
opinion in the case of Ram Jawaya v State of Punjab related to the doctrine of separation of
power. The came one of the most land mark judgments delivered by the Supreme Court in
KeshvanandaBharti v Union of Indiathe court was of the view that amending power was now
subject to the basic features of the constitution. And hence, any amendment tampering these
essential features will be struck down as unconstitutional. Beg, J. added that separation of
powers is a part of the basic structure of the constitution. None of the three separate organs of the
republic can take over the functions assigned to the other7. Hence this further confirmed the
opinion of the court in relation to the doctrine of separation of power.
Then in Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was
pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional amending power, cannot exercise i.e. the
parliament does not have the jurisdiction to perform a function which the other organ is
responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of
the three organs of the state. Also the constituent Assembly Of France in 1789 was of the view
that “there would be nothing like a Constitution in the country where the doctrine of separation
of power is not accepted. So if there is a provision then there should be proper implementation
and this judgment emphasis on that point only.
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Also in I.R. Coelho vs. State of Tamil Nadu[xxvii], S.C. took the opinion opined by the
Supreme court in Kesavananda Bharaticase pertaining to the doctrine of basic structure
and held that the Ninth Schedule is violative of the above said doctrine and hence from now on
the Ninth Schedule will be amenable to judicial review which also forms part of the basic
structure theory..
From the above few case laws right from Ram Jawaya v state of Punjab in 1955 to I.R. Coelho
vs. State of Tamil Nadu inthere has been a wide change of opinion as in the beginning the court
was of the opinion that as such there is no Doctrine of Seperation of Power in the constitution of
India but then as the passage of time the opinion of the Supreme Court has also changed and now
it do includes the above said Doctrine as the basic feature of the Constitution.
PRINCIPLES OF NATURL JUSTICE

The principle of natural justice or fairness is the sine qua non of a democratic government.
Principles of natural justice includes:

Rule against bias: Bias may include:
(i) Personal Bias; (ii) Pecuniary Bias ; (iii) Subject-matter Bias; (iv) Departmental Bias; (v)
Preconceived notion bias.
(b) Rule of audi alteram Partem: This right to fair hearing includes:
(i) Right to know adverse evidence; (ii) Right to present case; (iii) Right to rebut evidence; (iv)
Right to cross-examination and legal re presentation; (v) Right to reasoned decision, etc.
(c) Reasoned Decision
‘Bias’ means an operative prejudice, whether conscious or unconscious, in relation to a party

or issue. This is the idea that the judge may well have “strong views" or “preconceived ideas"
concerning the case before them.
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Bias arising out of preconceived notions is the subject of this paper. The problem is that no judge
can be expected to keep his mind blank like a sheet of paper, but at the same time, preconceived
notions would defeat the very purpose of a fair trial. A celebrated judgment to illustrate this point
came in the English case of Franklin v Minister of Town and Country Planning where the House
of Lords stated that the minister had a genuine duty to give consideration to a report of an
inspector concerning the siting of a new town at Stevenage and to consider objections to that
position. It was held that reference to bias was out of place in this situation. However, even
though the result is the same, the reasoning of the Court of Appeal is to be preferred, which
stated that complete impartiality cannot be expected. Also, impartiality in the context of a
minister making a decision, such as the siting of a new town, would not be the same as when a
Magistrate decides a case. However, while complete impartiality is difficult to achieve,
procedural fairness may require the minister to still hear representations.
Again, in R. v. Secretary of State for the Environment, ex p. Brent London Borough Council, the
applicant local authorities claimed that they should be entitled to make such representations to
the minister as to the way in which he should use his powers in issuing local authority grants.
The court held that the minister was under a duty to act fairly in the way he exercised his
discretion under the legislation, although the court accepted that the minister would not be
expected to hear such representations if he were a judge. The minister would not be expected to
approach the matter with “an empty mind" but, in the words of the court, the mind should “at
least be ajar".
In Govindaraja Mudaliar v State of Tamil Nadu, the government decided to nationalize road
transport and appointed a committee to frame a scheme for this. The Home Secretary was made a
member of this committee. When the scheme was finally published, objections were heard by the
Home Secretary, but the scheme was subsequently passed without any modifications. It was
contended that the hearing was vitiated by the rule against bias because the Secretary being a
member of the Committee that framed the scheme had already made up his mind about the
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nationalization. The Court rejected this contention on the ground that the Secretary did not
finally determine any issue so as to foreclose his mind. He simply helped the Government in
formulating the scheme. Similarly, in Kondala Rao v. APSRTC , the court did not quash the
nationalization of road transport order of a minister on the challenge that the same minister had
presided over a meeting only a few days earlier in which nationalization was favored. The court
instead took the view that the committee’s decision was not final and irrevocable, but merely a
policy decision.
The problem of bias arising from preconceived notions may have to be disposed of as an inherent
limitation of the administrative process. It is useless to accuse a public officer of bias merely
because he is predisposed in favor of some policy in the larger interest of the public. As a wise
man had once stated, “we are each burdened with prejudice; against the poor or the rich, the
smart or the slow, the gaunt or the obese. It is natural to develop prejudices. It is noble to rise
above them."
SALIENT FEATURES OF CONSTITUTION OF INDIA

Salient Features of Indian Constitution
Originally having 395 Articles divided into 22 parts and 8 schedules, a lengthiest constitution of
the world with systematic elaboration on every topic. At present, it contains 448 Articles with 12
schedules as a result of various amendments (101 till so far, GST Amendment).
Longest written constitution: The constitution of India is said to be the longest written
constitution in the world because, it contains:
• Separate provisions for states and centre and their inter-relationship.
• The borrowed provisions from several sources and several other constitutions of
the world.
• The separate provisions for scheduled castes, scheduled tribes, women, children, and
backward regions.
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• It contains the detailed list of individual rights, directive principles of state policy and details
of administration procedures which were laid down to make the constitution an easy handy.
Unique blend of rigidity and flexibility: A Constitution may be called rigid or flexible on the
basis of its amending procedure.
• Some parts can be amended by ordinary law making procedure while certain provisions can be
amended only when a Bill for that purpose is passed in each house of Parliament by a majority of
the total membership of that house and by a majority of not less than two-third of the members of
that house present and voting.
• Some amendments are also required to be ratified by the legislatures of not less than one-half
of the states before being presented to the President for assent.
India as a sovereign, socialist, secular, democratic and republic: India is governed by

its people through their representatives elected on the basis of universal adult franchise
(Government of the people, by the people and for the people).
• India as a sovereign means it manages its internal and external affairs freely without any
external forces. However, it continues to be a member of the commonwealth of Nation
with the British Monarch as its head.
• The term socialist is added by the 42nd Amendment in 1976, means achievement of socialist
goals through democratic, evolutionary and non-violent means. However, India follows the
mixed model of socialist and capitalist economy.
• By secular means it recognizes all religions equally without having any state religion
which is a part of the basic structure.
• By republic means head of the state (President) is elected one and not the monarch.
Parliamentary System of Government: Theoretically, Parliament controls the functioning of

the Council of Ministers; hence it is called Parliamentary system.
• Here executive is responsible to the legislature and remains in power as long as it enjoys the
confidence of the legislature.
• The President of India, who remains in office for five years, is the nominal, titular or
constitutional head (Executive).
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• The Prime Minister is the real executive and head of the Council of Ministers who is
collectively responsible to the lower house (Lok Sabha).
Single Citizenship: Unlike Federation, where citizen enjoys dual citizenship of both State and
Union, India has a single citizenship provided by the union and recognized by all the states
across India.
Universal Adult Franchise: The Indian Constitution establishes political equality in India
through the method of universal adult franchise which functions on the basis of ‘one person one
vote’. Every Indian who is 18 years of age or above is entitled to vote in the elections,
irrespective of caste, sex, race, religion or status.
Independent and Integrated Judicial System: The judiciary system is kept free from the
influence of the executive and the legislature. As an integrated system, India has the Supreme
Court as the apex court below which High Courts come. The High Courts in turn supervise the
lower courts.
Fundamental Rights, Fundamental Duties and Directive Principles of State Policy:

Fundamental Rights are not absolute but are subject to the limitations which are expressly
defined by the constitution itself and are enforceable in the court of law.
• The DPSPs are the guidelines to be followed by the states regarding governance and are not
enforceable in the court of law.
• The Fundamental Duties, added by the 42nd Amendment are moral conscience which ought
to be followed by the Citizens.
A Federation with a strong centralizing tendency: India is an indestructible Union with

destructible states means it acquires a unitary character during the time of emergency. Hence,
some experts say it as a quasi federal in nature.
Balancing Parliamentary supremacy with Judicial Review: An independent judiciary with

the power of judicial review is a prominent feature of our constitution. The harmonization which
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our Constitution has effected between Parliamentary Sovereignty and a written Constitution with
a provision for Judicial Review is an important achievement of the framers of our Constitution.
JUDICIAL SYSTEMS IN INDIA
HIERARCHY AND JURISDICTION OF COURTS
The feature Indian judiciary system is its hierarchical structure of courts. There are different
levels of judiciary system in India empowered with distinct type of courts. The courts are
structured with very strong judiciary and hierarchical system as per the powers bestowed upon
them. This system is strong enough to make limitation of court with its jurisdiction and
exercise of the power. The Supreme Court of India is placed at the top of the hierarchical
position followed by High Courts in the regional level and lower courts at micro level with the
assignment of power and exercising of the same for the people of India.
Supreme Court of India
Supreme Court of India is the highest level of court of Indian juridical system which was
established as per Part V, Chapter IV of the Constitution of India which endorses the concept of
Supreme Court as the Federal Court to play the role of the guardian of the esteemed constitution
of India with the status of the highest level of court in the status of appeal cases.
Constitution Regulation
As conferred by Articles 124 to 147 of Indian Constituency, the jurisdiction and composition of
the Supreme Court is being fixed. This court is primarily of the status of appellate court. This
court is accepting the appeals of cases which are being heard in the High courts situated in
different states and union territories with dissatisfaction of related parties. This court also accepts
writ petitions with the suspected occurrence of activities which may infer about violation of
human rights and subsequent petitions are accepted to hear and judge the consequences of such
happenings.
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These types of petitions are accepted under Article 32 of Indian constitution. This article
confers the right to ensure remedies through constitution. This court also hears about such
serious issues which need to be attended with immediate attention.
History
This court has started its operation since 28th January 1950 with the inaugural sitting, the day
since when the constitution of independent India had been effectively applicable. The court had
already taken care of more than 24,000 judgments as per report of the Supreme Court.
Structure and Application

This court is comprised of the Chief Justice along with 30 other judgesto carry on the
operation of the court. The proceeding of the Supreme Court is being heard only in the language
of English. The Supreme Court is governed by the Supreme Court Rules which was published
in the year 1966.
The same had been fixed under the Article number 145 of the Constitution of India to ensure the
regulation of procedures and practices of the Supreme Court. This article is passing through the
process of upgrading with the presently enforced Article as per the Supreme Court Rules, 2013.
High Court of India

Constitution
High Courts are second Courts of Importance of the democracy of India.They are run by
Article 141 of the Constitution of India. They are governed by the bindings conferred by the
Supreme Court of India so far judgments and orders are concerned. The Supreme Court of India
is the highest level of courts and is responsible for fixing the guidance to the High Courts set by
precedence.
High courts are the types of courts which are instituted as the courts powered by constitution
with the effect of Article 214 Part IV Chapter V of the Indian
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Constitution. There are 24 high courts in India taking care of the regional juridical system of
India out of which Kolkata High Court is the oldest.
Jurisdiction
These courts are mainly confined to the jurisdiction of state, group of states or Union
Territory. They are being empowered to govern the jurisdiction of lower courts like family, civil
and criminal courts with other different courts of the districts. These courts are of the statute of
principal civil courts so far originality of jurisdiction is concerned in the related domain of the
states and the other district courts.
These courts are treated as subordinate to High Courts by status. But High Courts are mainly
exercising their jurisdiction related to civil or criminal domain if the lower courts are proved
incapable of exercising their power as per authorization extended by law. These situations may
be generated through the inability of financial or territorial jurisdiction. There are specific areas
in which only High Courts can exercise the right for hearing like cases related to Company Law
as it is designated specially in a state or federal law.
But normally the high courts are involved in the appeals raised in the cases of lower courts
with the writ petitions as conferred in Article 226 of the Constitution of India. The area of writ
petitions is also the sole jurisdiction of high courts. The jurisdiction of High Court is varying so
far territorial jurisdiction is considered.
Official structure and application
The appointment of the judges of High Courts are being executed by the President of India
with the consultation of the Chief Justice of India, the Chief Justice of High Court and the
Governor of the state or union territory.
Decision on the number of judges in High Court is mainly dictated considering the higher
number of either the average of organization of main cases for the last years as per the average
nationally calculated or the average rate of main cases disposed per judge per year in the
respective high court.
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The high courts with handling of most of the cases of a particular area are provided with the
facility of permanent benches or branches of the court situated there only. To serve the
complainants of remote regions the establishment of circuit benches had been made to facilitate
the service with the schedule of operation as per the occurrence of visit of the judge.
Lower Courts of India

District Courts
Constitution
The basis of structuring of district courts in India is mainly depending upon the discretion
of the state governments or the union territories.The structure of those courts are mainly
made considering several factors like the number of cases, distribution of population, etc.
Depending upon those factors the state government takes the decision of numbers of District
Courts to be in operation for single district or clubbing together different adjacent districts.
Normally these types of courts exercise their power of juridical service in district level.
These courts are covered by the administrative power of the High Courts under which the district
courts are covered. The judgments of the district courts are subject to review to the appellate
jurisdiction of the respective high court.
Structure and Jurisdiction

The district courts are mainly run by the state government appointed district judges. There
are additional district judges and assistant district judges who are there to share the additional
load of the proceedings of District Courts. These additional district judges have equal power like
the district judges for the jurisdiction area of any city which has got the status of metropolitan
area as conferred by the state government. These district courts have the additional jurisdictional
authority of appeal handling over the subordinate courts which are there in the same district
specifically in the domain of civil and criminal affairs.
The subordinate courts covering the civil cases, in this aspect are considered as Junior Civil
Judge Court, Principal Junior and Senior Civil Judge Court, which are also known as Sub
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Courts, Subordinate Courts. All these courts are treated with ascending orders. The
subordinate courts covering the criminal cases are Second Class Judicial Magistrate Court,
First Class Judicial Magistrate Court, and Chief Judicial Magistrate Court along with
family courts which are founded to deal with the issues related to disputes of matrimonial issues
only. The status of Principal Judge of family court is at par with the District Judge.
There are in total 351 district courts in operation out of which 342 are of states while 9 are of
union territories.
Village Courts
Constitution Structures and Features
The village courts are named as Lok Adalat or Nyaya Panchyat which means the service of
justice extended to the villagers of India. This is the system for resolving disputes in micro level.
The need of these courts is justified though the Madras Village Court Act of 1888. This act is
followed by the development post 1935 in different provinces, which are re-termed as different
states after the independence of 1947.
This conceptual model had been started to be sued from the state of Gujarat consisting of a judge
and two assessors since 1970s. The Law Commission had recommended in 1984 to form the
Nyaya Panchayats in the rural areas with the people of educational attainment. The latest
development had been observed in 2008 through initiation of Gram Nyaylayas Act which had
sponsored the concept of installation of 5000 mobile courts throughout the country. These courts
are assigned to judge the petty cases related to civil and criminal offence which can generate the
penalty of up to 2 years imprisonment.
So far the available statistics of 2012 there are only 151 Gram Nyaylayas which are functional in
this big country which is far below the targeted figures of 5000 mobile courts. While trying to
find the basic reasons for this non achievement, it was found as financial constraints followed by
shown reluctance by the lawyers, respective government officials and police.
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The Hierarchical Structure of Indian Courts
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Chanderprabhu Jain College of Higher Studies

Class : B.A.LL.B First Semester

Paper Code : LLB 101

Subject : Legal Method

BASIC CONCEPTS OF INDIAN LEGAL SYSTEM

COMMON LAW FOUNDTION

Historical development of English Common Law

Origin And Concept Of Rule Of Law

DICEY'S THEORY of Rule of Law consists of three main principles:

COMPONENTS OF RULE OF LAW: Rule of Law is a dynamic concept but it is somewhat

Common ingredients of Rule of Law are:

a government bound by and ruled by law

Rule of law in modern era

-Legislature -Executive -Judiciary

Locke distinguished between what he called:

Discontinuous legislative power

Continuous executive power

The theory of separation of powers signifies three formulations of structural classification of

Principle of Checks and Balances

d) Modern State is a welfare State and it has to

Judicial Opinion on the Doctrine of Separation of Powers

PRINCIPLES OF NATURL JUSTICE

Principles of natural justice includes:

(c) Reasoned Decision

‘Bias’ means an operative prejudice, whether conscious or unconscious, in relation to a party

SALIENT FEATURES OF CONSTITUTION OF INDIA

India as a sovereign, socialist, secular, democratic and republic: India is governed by

Parliamentary System of Government: Theoretically, Parliament controls the functioning of

Fundamental Rights, Fundamental Duties and Directive Principles of State Policy:

A Federation with a strong centralizing tendency: India is an indestructible Union with

Balancing Parliamentary supremacy with Judicial Review: An independent judiciary with

JUDICIAL SYSTEMS IN INDIA

HIERARCHY AND JURISDICTION OF COURTS

Supreme Court of India

Structure and Application

High Court of India

Lower Courts of India

Structure and Jurisdiction

The Hierarchical Structure of Indian Courts

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