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Indian Legal System

 Keshavananda Bharati v State of Kerala AIR 1973 SC 146; (1973) Supp SCR 1
o Landmark judgement by SC 13 judges which propounded the basic structure doctrine or
essential feature theory. In this case, Golak Nath case was overruled and bench in
majority said the parliament can amend any part of the constitution but it cannot
destroy its basic structure. The SC said the parliament has limited amending power.
o The judgement defined the basic structure of the constitution. The SC held that although
no part of the constitution, including fundamental rights, was beyond the parliaments
amending power, the ‘basic structure of the constitution’ could not be abrogated even
by a constitutional amendment. This is the basis in Indian law in which the judiciary can
strike down any amendment passed by Parliament that is in conflict with the basic
structure of the constitution.
o The origins of the Kesavananda Bharati case can be traced back to the land reforms that
were introduced in the Indian state of Kerala in the 1950s and 1960s. These reforms
were aimed at redistributing land from large landowners to the landless and the poor. In
1963, the Kerala government passed the Kerala Land Reforms Act, which placed a limit
on the amount of land that a person could hold. The Act provided for the acquisition of
excess land from landowners and its distribution to the landless and the poor.
o Sri Kesavananda Bharati was the head or pontiff of the Edneer Mutt, a Hindu religious
institution in Kerala, India. In 1970, the Government of Kerala imposed restrictions on
the ownership of land held by religious institutions. The Edneer Mutt, headed by Sri
Kesavananda Bharati, challenged the constitutionality of the Act in the Kerala High
Court. The case eventually reached the Supreme Court, which ruled in favour of the
state government.
o The Parliament of India in the meantime passed the 24th Amendment to the
Constitution, which sought to curtail the powers of the judiciary and limit the scope of
judicial review. The 25th and 29th Amendments were also passed, which sought to limit
the fundamental rights of citizens and give Parliament the power to amend any part of
the Constitution.
o Sri Kesavananda Bharati filed a petition challenging the validity of these amendments,
arguing that they violated the basic structure of the Constitution. This led to the
landmark Kesavananda Bharati judgment, which upheld the basic structure doctrine and
placed limits on the power of the Parliament to amend the Constitution.
o The significance of the Kesavananda Bharati case lies in the fact that it established the
doctrine of basic structure of the Indian Constitution. The basic structure doctrine holds
that certain fundamental features of the Constitution, such as the supremacy of the
Constitution, the rule of law, and the independence of the judiciary, cannot be amended
or abrogated by the Parliament through a constitutional amendment.
o This doctrine has served as a check on the power of the Parliament to amend the
Constitution and has ensured that the Constitution remains a living document that is
responsive to changing times while preserving its fundamental values and principles. The
Kesavananda Bharati case has thus had far-reaching consequences for the constitutional
development of India, making it one of the most significant cases in Indian constitutional
law.
o The basic structure doctrine is a common law legal doctrine that the constitution of a
sovereign state has certain characteristics that cannot be erased by its legislature. This
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doctrine is recognised in India, Bangladesh, Malaysia, Pakistan and Uganda. Bangladesh

is perhaps the only legal system in the world which recognise this doctrine with an
expressed, rigid and written constitutional manner through art.7B of its constitution.
o Chief Justice Sikri, writing for majority indicated that the Basic structure was:
a. The supremacy of the constitution
b. The republic and democratic form of the government
c. Secular nature of the constitution
d. Maintenance of the separation of power
e. Federal character of the constitution
Chief Shelat and Grover added three feature to the CJ’s list:
a. The mandate to build a welfare state contained in the Directive principles of state
policy
b. Maintenance of unity and integrity of India
c. Sovereignty of the country
Justice Hedge and Mukherjee instead provided their opinion, a separate and shorter list:
a. Sovereignty of India
b. Unity of the country
c. Essential feature of the individual freedom
d. Mandate to build a welfare state
Justice Reddy stated that the basic feature of the constitution were laid down by the
preamble and thus could:
a. Sovereign democratic republic
b. Provision of social, economic and political justice
c. Liberty of the right, expression, belief, faith and worship
d. Equality of status and opportunity
o (need to understand what was the political emergency that happened in this case)
 Shankari Prasad Singh Deo v UOI, AIR 1951 SC 458
o The doctrine of Basic structure evolved through a series of verdicts in India, and this was
one such case.
o Under this case question was raised of whether the fundamental rights can be amended
under art.368 by the parliament or not.
o Herein Supreme court conceded absolute power to parliament in amending the
constitution.
o The court gave the verdict that the term law in art.13 means rules or regulations made
in exercise of ordinary legislative power and not amendments to the constitution made
in exercise of constituent power under art.368.
o Article 13 of the original constitution said that the state shall not make any law that
takes away or abridges the rights given to the citizens in Part III and any law that takes
away or abridges the rights given to the citizens in Part III and any such law made in
contravention of this article shall be deemed to be void to the extent of the
contravention.
o Herein, it was said that the amendment (in this case an amendment to art.31A and 31B)
that take away fundamental right of the citizens is not allowed by art.13. They argued
that state includes parliament and law includes constitutional amendments.
o It was held that law in art.13 is ordinary law made under legislative powers. And
therefore, the parliament has power to amend the constitution.
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o The SC ruled out that the power to amend the constitution under art.368 also included
the power to amend fundamental rights and the word law in art.13(8) includes only an
ordinary law made in exercise of the legislative powers and does not include
constitutional amendment which is made in exercise of constituent power. Therefore, a
constitutional amendment will be valid even if it abridges or takes any of the
fundamental rights.
 KM Nanavati v State of Bombay, AIR 1961 SC 112 (Whether special power of
governor/president prevails over the general power of the SC court)
o Landmark case in the criminal history of India as the case was held in 1959 by the
supreme court where a naval commander kawas Mankeshaw Nanavati was accused of
murder of prem Ahuja (his wife paramour).
o The appellant has made SLP and an application of pardoning power to the governor. The
governor reduced his sentence. The SC held that SLP and pardoning power cannot
operate together both are different. If SLP is filed then the power of governor in such
condition will be ceased.
o Further court held that the art.142 and 161 are different in nature. The two articles are
reconcilable and should be reconciled. The rule of statutory coexistence stated that it is
sometimes found that the 2 state conflict, as their objective are different and language
of each is restricted to its own object or subject, so they run parallel and never meet.
Under art.142 unless the order of lower court does not follow SC may not entertain the
SLP and in art.145 court has all power to make the law to give justice.
o The SLP was dismissed by the SC by a majority decision holding that the SLP could not be
listed for hearing unless he surrenders under art.142 of the constitution.
o To the issue of whether the governor’s pardoning powers and a SLP could not be
exercised together or not, the SC held that both cannot move together. If a special leave
petition is filed before the SC, then the governor’s pardoning powers are terminated.
The SC concluded that the governor “overreached” the powers conferred on him.
o The supreme court held the pardoning power of the governor and the special leave
petition cannot operate together. If a special leave petition is filed, then the power of
the governor will cease to exist.
 ADM Jabalpur v Shivakant Shukla (1976) Supp SCR 172 [Habeas Corpus] (No person has
any locus Standi to move any Writ Petition when certain fundamental rights are
withdrawn during emergency) (what is this emergency under which the most prestigious
fundamental rights are to be removed)
- This judgement was overturned by Right to Privacy verdict 2017 (Justice K S Putt
swamy and another’s vs union of India and others)
 SP Gupta v UOI, AIR 1982 SC 149 (Whether decision of Chief Justice of India holds
primacy over other judges)
o Just a beginning: The Indian judiciary is one of the most important organs of the
government and a pillar of democracy in the country. It has always lived up to the
expectations of the people whenever they demand justice. The Hon’ble Supreme Court
at the apex has served as the guardian of fundamental rights and interpreter of the
Constitution of India.
o The doctrine of Separation of Power that was envisioned by the constitution makers and
then incorporated as one of the basic structures of the Indian Constitution, provides
very clearly for the independence of Judiciary. It is the Judiciary through its courts of
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laws that upholds the democracy of this nation and keeps the other organs of the state
machinery accountable for their actions.
o However, over the years the meaning and scope of this independence of the judiciary
have been much discussed and deliberated upon, raising questions as to whether such
independence is absolute or if it suggests an insubordination of the executive and
legislature. One such branch of discussion grew around the powers of appointments of
judges of High Courts and Supreme Court. Judges are an integral part of the judiciary
and a transparent, clear and democratic system dealing with the appointment of Judges
is necessary for the continuance of an efficient judicial system which upholds the trust of
the people, guards the constitutional values and democracy and balances the other
organs while keeping them in check.
o Article 217(1) of the Indian Constitution provides that every judge of a High Court shall
be appointed by the President by warrant under his hand and seal on consultation with
the Chief Justice of India, the Chief Justice of the concerned High Court and the
Governor of the concerned state. Through this article, the power of appointing the
judges is placed upon the President of India and thus, the executive. The first judges
transfer case, which took place in 1981 was one of the first instances where this balance
between executive's power to appoint judges and the potential effect it could have on
the independence of the judiciary was discussed.
o The case set a precedent for the evolving the system of appointment of the judges and
putting in place a 'Collegium System' was discussed. Subsequently the second and third
judges transfer case put into effect the Collegium system and also modified it to address
the loopholes in the system. The fourth and the most recent judges transfer case of
2015 abolished the National Judicial Appointment Commission that was introduced for
the selection of candidates for the post of a Judge of a High Court.
o The other side of the argument remains however, that the collegium system while
keeping a check on the influence of the executive on the judiciary, is itself a non-
transparent and ambiguous process and is not in consonance with the very democratic
value it seeks to protect
o The question before the court was whether the executive had sole authority to appoint
judges to the higher judiciary or if the judiciary played a role in the process.
o Justice P.N. Bhagwati wrote the majority opinion, which stated that the executive had
the authority to make appointments and that the judiciary had no say in the matter.
However, Justice Beg disagreed with the majority and argued that judges should be
appointed by the judiciary. He argued that this was required to safeguard the judiciary’s
independence and prevent political inference.
o The case was important because it sparked a discussion about the role of the judiciary in
the selection of judges, which eventually led to the 2014 passage of the 99th
Constitutional Amendment Act. The National Judicial Appointments Commission (NJAC),
a new organization in charge of appointing and moving judges to higher courts, was
established by this amendment. However, in the case of Supreme Court Advocates-on-
Record Association v. Union of India in 2015, the NJAC was later declared
unconstitutional.
o Article 217: Power to appoint judges of High Court: Justice Venkataramaiah in his
verdict stated that under Article 217 of the Constitution of India, the President of India
has the power to appoint the judges of the High Court. But if there are differing opinions
on the same, the President has to consider them separately and then make a decision.
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To quote the words of Justice Venkataramaiah, he said, “While he is bound to consult

the authorities mentioned therein and take into consideration their opinions, he is not
bound by their opinions. Ordinarily one does not expect the President to make an
appointment by ignoring all the adverse opinions expressed by the functionaries
mentioned in Article 217.”
o Chief Justice of India not being entitled to primacy in case of difference of opinion: To
quote the words of Justice P.N. Bhagwati, he said, “The opinion of each of the three
constitutional functionaries is entitled to equal weight and it is not possible to say that
the opinion of the Chief Justice of India must have primacy over the opinions of the
other two constitutional functionaries. If primacy were to be given to the opinion of the
Chief Justice of India, it would, in effect and substance, amount to the concurrence,
because giving primacy would mean that his opinion must prevail over that of the Chief
Justice of the High Court and the Governor of the State, which means that the Central
Government must accept his opinion.”
o Consultation: To quote the words of Justice D.A. Desai he said, “The consultation has to
be meaningful, purposeful, result-oriented and of substance. … All the parties involved
in the process of consultation must put all the material at its command relevant to the
subject under discussion before all other authorities to be consulted. Nothing can be
kept back. Nothing can be withheld. Nothing can be left for the eye of any particular
constitutional functionary.” It was further clarified that the President has the right to
differ from the opinions of the judicial functionaries i.e. the Chief Justice of India and
Chief Justice of High Court citing cogent reasons and take a contrary view.
o Independence of Judiciary: It was argued in the court in this case, that if the power to
the appointment of the judges will go to the executive then the independence of the
judiciary, which is a basic feature of the constitution, will be in shambles. On this Justice,
Venkataramaiah said, “It is difficult to hold that merely because the power of
appointment is with the executive, the independence of the judiciary would become
impaired. The true principle is that after such appointment the executive should have no
scope to interfere with the work of a Judge”
 AK Roy v UOI, AIR 1982 SC 710 (An ordinance issued by the president and the governors
and the law made by the president or his delegate under article 375(i)(a) of the
constitution Partake fully the legislative character and are made in the exercise of
legislative power, within the contention of the constitution)
o The Court held that by virtue of Art.123 and 213 of the Constitution of India, both the
President and the Governor can exercise their legislative power in certain extraordinary
circumstances. Article 123(2) reads that the ordinance “shall have the same force and
effect as an Act of Parliament”. It was also highlighted that the growth in the legislative
power of the executive is to ensure flexibility and expedition and when the time cannot
afford to follow the procedure, such powers of the executive have do the needful. The
Court went on to clarifying that unlike the American Constitution, there is no strict
separation of power between the legislature and the executive and the organs are
expected to harmoniously work together therefore, the lawmakers were right in
bestowing these legislative powers upon the President.
o In most of the cases Power of Ordinance making is a controversial topic and a topic of
discussion. It tries to disturb the balance between the executive as well as legislative
powers by bringing into the element of arbitrariness into the Constitutional System and
disturbing the rule of law. Whenever such an ordinance making power is exercised by an
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Executive body it shows disregard to the legislature. Till now only a few grounds are
established to challenge the validity of the Ordinances: (a.) directly violates a
constitutional provision, (b.) president has exceeded his constitutional power, (c.)
President had made a colorable use of his power.
o These Ordinances have the same effect as an Act of Parliament. They enable the
government to take immediate legislative action in desperate times. Article 123 of the
Indian Constitution grants the President of India certain Law making powers i.e. to
Promulgate Ordinances when either of the two Houses of the Parliament is not in
session which makes it impossible for a single House to pass and enact a law. Ordinances
may relate to any subject that the parliament has the power to make law, and would be
having the same limitations.
o Thus, the following limitations exist
i. When the legislature is not in session:�the President can only promulgate when
either of the House of Parliament is not in session.
ii. Immediate action is needed: the President though has the power of
promulgating the ordinances but the same cannot be done unless he is satisfied
that there are circumstances that require him to take immediate action.
iii. Parliament should approve: after the ordinance has been passed it is required to
be approved by the parliament within six weeks of reassembling. The same will
cease to operate if disapproved by either House.
o The President may withdraw an ordinance at any time. However, he exercises his power
with the consent of the Council of Ministers headed by the President. The Ordinances
may have retrospective effect and may modify or repeal any act of parliament or other
ordinances. It may be used to amend a tax law but it can never amend the Constitution.
o One of the essentials to be kept in mind while passing an ordinance is that the President
should be satisfied; that circumstances exist that require immediate actions on part of
the President. The apex court has not yet defined �satisfaction of the President � and
even whether the subjective satisfaction of the President can be questioned in the Court
of Law. To clarify the said incertitude, Indira Gandhi led Government passed the 38th
Constitutional (Amendment) Act, 1975 which has expressly excluded the subjective
satisfaction of the President outside the purview of Judicial Review. Further in 44th
(Amendment) Act, 1978 deleted this clause, holding that the power of the President
could be challenged in the Court of Law if it is based on bad faith, corrupt motive, or had
any mala fide intention.
o In the case of A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that
the subjective satisfaction of the President is not completely non-justiciable. 12 Later in
the case of Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198, the Apex court
overruled its own decision and held that the Satisfaction of the President cannot be
called in question in the Court of law and is out of Judicial Review. An ordinance would
be made open to challenge on the following grounds:
i. It constitutes colorable legislation; or
ii. It contravenes any of the Fundamental Rights as mentioned in our Constitution;
or
iii. It is violative of substantive provisions of Our Constitution such as Article 301; or
iv. It retrospectively is unconstitutional.
o Chief Justice P.N. Bhagwati observed (D.C. Wadhwa v. State of Bihar): The power to
make an ordinance is to meet an extraordinary situation and it should not be made to
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meet political ends of an individual. Though it is contrary to democratic norm for an

executive to make a law but this power is given to the President to meet emergencies so
it should be limited in some point of time.
The power of judicial review of ordinances was again in question in the case of Krishna
Kumar Singh v State of Bihar in 1998, in this case the Supreme Court struck down many
number of ordinances stating that no particular basis for the exercise of the Ordinance
making power of the President had been shown. It also stated: There was also no
explanation offered for promulgating one ordinance upon another.
Though the sheer profligacy in ordinance making power of the President had compelled
the Apex Court to perform some judicial review, there is still no clarity on the nature and
extent of the judicial review of the court over the ordinances made by the President or
the Governor.
 UOI v Cynamide India Ltd, AIR 1987 SC 1802 (Legislative Action, plenary or subordinate,
is not subject to rules of natural justice)
 Federation of Hotel & Restaurant v UOI, AIR 1990 SC 1637 (Determination of Colourable
Legislation and Legislative competency to enact law)
 SR Bommai v UOI, (1994) 3 SCC 1 (Validity of proclamation of emergency by president
under art.356 of the constitution)
 Salem Advocate Bar Association, Tamil Nadu v UOI AIR 2003 SC 189 (Amendments to
Civil Procedure Code in 1992 and 2002 do not suffer from any constitutional infirmity)
 Asian Resurfacing of Road Agency Pvt Ltd v Central Bureau of Investigation, AIR 2018 SC
2039 (Inherent powers of High Court)
 Rajendra Diwan v Pradeep Kumar Ranibala, AIR Online 2019 SC 1711 (Competence of
state legislature to enact law affecting supreme court jurisdiction)
 Sajjan Singh v State of Rajasthan
 “Our Legal System” N.R.Madhava Menon
o Legal system of a country is part of its social system and reflects the social, political and
cultural characteristics of that society.
o In the case of India also even though the legal system we now have is largely the gift of
the British rulers. There is a view that the system is still alien to the majority of the
Indians whose legal culture is more indigenous and whose contact with the formal legal
system (the imported British model) is marginal if not altogether non-existent. The
language, technicality and procedure of the inherited legal system are indeed factors
which limit access to justice for the illiterate, impoverished masses of our country.
Nevertheless, the rights and benefits conferred by the laws and the Constitution offer
the opportunity for those very people to enjoy the fruits of a welfare democracy which
the people of India have given unto themselves on the 26th January 1950. It is in this
context familiarity with law and its processes becomes essential to every Indian, rich or
poor, man or woman, young or old.
o A legal system consists of certain basic principles and values (largely outlined by the
Constitution), a set of operational norms including rights and duties of citizens spelt out
in laws -Central, State and local, institutional structures for enforcement of the laws and
a cadre of legal personnel endowed with the responsibility of administering the system.
o The constitution describes the method by which this powered conferred on the state is
to be exercised for the benefit of the people. In other words it is a political document
which distributes state power amongst different organs and regulates its exercise in its
incidence on the people.
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o The form of government is democratic and republican and the method is parliamentary
through adult franchise.
o Preamble: “Justice, social, economic, and political; liberty of thought, expression, faith
and worship; equality of status and of opportunity, and to promote among them all”.
Fraternity assuring dignity of the individual and the “unity and integrity of Nation”
o To achieve this goal of dignity of the individual with justice, liberty and equality the
constitution guarantees certain fundamental rights and provides for its enforcement
through the HC and SC.
o Further, towards achieving the goal as set out in the preamble, the constitution gives
certain directives to state to follow in its policies and programmes. They together
constitute a reference for state action in every sphere.
o The constitution envisages a unique place for the judiciary. Apart from overseeing the
exercise of State power by the Executive and the Legislatures of the State and the
Central Governments, the Supreme Court, and the High Courts are charged with the
responsibility of effectively protecting citizens’ rights through its writ jurisdiction. This
offers a cheap and expeditious remedy to the citizen to enforce the guaranteed rights.
The Supreme Court liberalized the rules so as to enable poor and illiterate citizens to
have easy access to courts for enforcing their basic rights.
o The Rule of Law is supreme and the independence of judiciary is reality in our country.
Compels everyone to abid the law.
o In a Welfare State like ours, laws are at the more so because they are expected to
regulate a variety of social and economic activities so as to subserve the common good.
Inspired by the Constitution, Parliament, the State legislatures and local councils make
and unmake the laws day in and day out as occasion demands. Courts interpret them in
specific fact situations and, in the process, extend the scope and application of the laws.
The common man may get lost in the maze of legislations coming from all sides and
contribute to its complexity by creating his own laws through contracts and agreements
with others he has to deal with.
o On the basis of the remedies sought and the procedure followed, all laws can be
grouped into two categories, namely, Civil Laws and Criminal Laws. Broadly speaking,
criminal law is concerned with wrongs against the community as a whole, while civil law
is related to the rights duties and obligations of individual members of the community
between themselves
o Courts are institutions wherein disputes are adjudicated and justice, administered. They
are created by Statutes and enjoy such powers and jurisdiction, which the Statutes
confer. The Constitution itself provides for the Supreme Court and the High Court in
each State at the apex of the judicial system and confers original and appellate
jurisdiction on them primarily to resolve disputes
o Judges are free to administer law without fear or favour and they cannot be interfered
with by any one including the top functionary of the Government. They have the power
to punish those who commit contempt of court or disobey their legitimate orders.
o Legal services to the poor is one of the social obligation of every lawyer required under
the Bar Council rules of professional conduct.
 “Major Legal systems in the world today” Rene David and John E C Brierly
o These three – Romano-Germanic family, Common Law family and the family of socialist
law, these have uncontested place of prominence but still do not take into account all
contemporary legal phenomena.
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o Romano-Germanic Family
- Countries in which the legal science has developed on the basis of Roman Jus Civile.
- Here the rules of law are conceived as rules of conduct intimately linked to ideas of
justice and morality.
- To ascertain and formulate these rules falls principally to legal scholars who,
absorbed by this task of enunciating the “doctrine” on an aspect of law, are
somewhat less interested in its actual administration and practical application. These
matters are the responsibility of the administration and legal practitioners.
- Through colonisation by European nations, the Romano Germanic family has
conquered vast territories where the legal systems either belong or are related to
this family. The phenomena of voluntary “reception” has produced the same result
in other countries which were not colonized, but where the need for modernisation,
or the desire to westernize, has led to the penetration of European ideas.
- Outside Europe, its place of origin, these laws although retaining membership in the
Romano Germanic family nonetheless have their own characteristics which, from a
sociological point of view, make it necessary to place them in distinct groups. In
many of these countries it has been possible to “receive” European laws, even
though they possessed their own civilisation, had their own ways of thinking and
acting and their own indigenous institutions, all of which ante-date such reception.
Sometimes reception has left some of these original institution in place; this is
particularly clear in the case of Muslim countries where the reception of European
law and the adhesion of Romano – Germanic family have been only partial, leaving
some legal relations subject to the principles of traditional, local law.
- With respect to the countries of Africa and America, it will also be necessary to ask
whether their geographical conditions and population distribution, creating
conditions entirely different from those in Europe, have not lead to the development
of laws substantially different from their European models.
o Common Law family
- Laws of England and those modelled on English law.
- Formed primarily by judges who had to resolve specific disputes.
- Common law legal rule is one which seeks to provide the solution to a trial rather
than to formulate a general rule of conduct for the future.
- Matters relating to the administration of justice, procedure, evidence and execution
of judgements have, for common law lawyers, an important equal, or even superior,
to substantive legal rules because, historically, their immediate pre-occupation has
been to re-establish peace rather than articulate a moral basis for the social order.
- Origin of the common law are linked to royal power. It was developed as a system in
those cases where the peace of the English kingdom was threatened, or when some
other important considered required, or justified, the intervention of royal power.
- Here again a distinction between the common law in Europe and that outside
Europe must be made. In certain extra- European countries, the common law may
have been only partially received as in the case, for example, of certain of Muslim
countries or India and where it was received, attention must be given to its
transformation or adoption by reason of its co-existence with the tradition of
previous civilization. A different environment has, in any event, created difference
between the common law of the countries where it originated and that of the those
into which it was imported.
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o Relations between these two families

- The common law retains, to be sure, its own particular structure, very different from
that of the Romano-Germanic system, but the method employed in each are not
wholly dissimilar. Above all, the formulation of the legal rule tends more and more to
be conceived in common law countries as it is in the countries of the Romano –
Germanic family. As to the substance of the law, a shared vision of justice has been
produced very similar to common problem in both set of countries.
- The inclination to speak of a family of western law is all the stronger when one
considers that the law of some states cannot be annexed to either family, because
they embody both Romano – Germanic and common law elements. The laws of
Scotland, Israel, the union of south Africa, province of Quebee and the sophies in
which the place and function of law are very different from what they are in the
west. In a non-western societies the governing social principles to which reference is
made are of two types. On the one hand law is fully recognised as being of great
value but the law itself is framed in a different concept than it is in the west; on the
other, the very notion of law is rejected, and social relations are governed by other
extra-legal means. The first view is that of Muslim and Hindu societies, while the
latter is that adopted in countries of far east and large parts of Africa and Malagasy.
o Family of socialist laws
- Members of the socialist camp are those countries which formerly belonged to the
Romano- Germanic family, and they have preserved some of the characteristics of
Romano - Germanic law. Thus, the legal rule is still conceived in the form of a general
rule of conduct; and the divisions of law and legal terminology have also remained,
to a very large extend, the product of the legal science constructed on the basis of
the roman law by European universities.
- There do exist such differences that it seems proper to consider the socialist laws as
detached from the Romano – Germanic family. The originality of the socialist law is
particularly evident because of its revolutionary nature; in opposition to the
somewhat static character of Romano – Germanic laws, the proclaimed ambition of
socialist jurists is to overturn society and create the conditions of a new social order
in which the very concepts of state and law will disappear.
- The sole source of Socialist rules of law resides therefore within the revolutionary
work of the legislature, which expresses popular will, narrowly guided by the
Communist Party. However, legal science as such is not principally counted upon to
create the new order: law according to Marxism- Leninism- a scientific truth-is
strictly subordinate to the task of creating a new economic structure. In execution of
this teaching, all means of production have been collectivised. As a result the field of
possible private law relationships between citizens is extraordinarily limited
compared to the pre-Marxist period; private law has lost its pre-eminence - all law
has now become public law. This new concept removes from the very realm of law a
whole series of rules which jurists of bourgeois countries would consider legal rules.
o Other systems
- Strictly speaking there is no law in the world today which has not drawn certain of its
elements from one or other of these families. Some even hold the view that all other
systems, no more than survivors from the past, will ultimately disappear with the
passing of time and the progress of civilization. This attitude however proceeds from
a rather native sense of superiority and is really no more than an hypothesis, it does
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not acknowledge an observable reality in the modern world. All contemporary states
have, it is true, taken over a number of western ideas either because it was
necessary to preserve their independence or because it was useful in their internal
development. It does not follow that the older ways of thinking which, not so very
long ago, were widely accepted in these different societies have been totally
abandoned. Everyone will recognise the superiority of western technology: opinions
differ however on the superiority of western civilization taken as a whole. The
Muslim world, India, the Far East and Africa are far from having adhered to it
without reservation. These countries remain very largely faithful to philo society,
must act legally, courts must ensure that law is respected. Law, a mirror of justice, is
in this conception superior even to equity itself; outside the law, there can only be
anarchy, or arbitrariness, chaos or, the rule of force. Law is therefore venerated, the
courts are temples of justice, the judges its oracles. Far Eastern countries reject this
view. For the Chinese, law is an instrument of arbitrary action rather than the symbol
of Justice; it is a factor contributing to social disorder rather than to social order. The
good citizen must not concern himself with law; he should live in a way which
excludes any revindication of his rights or any recourse to the justice of courts. The
conduct of individuals must, unfailingly, be animated by the search for harmony and
peace through methods other than the law. Man's first concern should not be to
respect the law. Reconciliation is greater value than justice; mediation must be used
to remove conflicts rather than invoking law to resolve them. Laws may exist to
serve as a method of intimidation or as a model; but law is not made with a view to
being really applied, as in the West, Scorn is reserved for those who aspire to
regulate matters according to law or whose preoccupation is its study or application,
and who thereby defy convention and accepted proprieties. Countries of the Far East
have, traditionally, held the view that law is only for barbarians. The Chinese
communist regime and the westernization of Japan have not fundamentally changed
this conception rooted as it in their ancient civilizations. In China the communist
regime rejected the legal codes drawn up after the fall of imperial rule along western
lines and, and, after some brief hesitation, then repudiated the Soviet method of
building communism. The techniques finally adopted for doing so have given up to
the present time a very narrow place to law. Codes on the European model have
been instituted in Japan but, generally speaking, the populations makes little use of
them; people abstain from using the courts and the courts themselves encourage
litigants to resort to reconciliation; and new techniques have been developed for
applying or removing the need of applying the law.
o Muslim, Hindu, and Jewish Laws:
- The attitude of the Muslim, Hindu and Jewish communities about the law is easily
understood by a western jurist, even though the definition of law itself in western
jurisprudence has always given rise to difficulties and no single definition has so far
elicited any general acceptance. One of the fundamental reasons for this lack of
agreement is the debate between the proponents and adversaries of the notion of
"natural law". But it is because the idea of "natural law" exists that we are able to
understand the starting premise of these other systems. In this debate, law is held by
some to be no more than the body of rules that are really observed. The application
of which is entrusted to the courts. But law may also be seen as a model of ideal
behaviour, one not to be confused with the actual rules by which individuals act
12

which courts apply. European universities, in their pre-nineteenth-century tradition,

paid very little attention to national or customary laws of the time and taught,
almost exclusively, an ideal law constructed on the basis of Roman law.
- In Muslim countries, in the same way, more attention is given to the model law
linked to the Islamic religion than to local custom (treated as a phenomenon of fact)
or the laws and decrees of the sovereign (treated as merely administrative
measures) and neither of these is thought to possess the full dignity of law. The
same can be said of Jewish law and, in a very different context, Hindu law. Law, then,
whether linked to a religion or corresponding to a particularly way of thinking about
the social order, is not in either case always necessarily observed by private persons
or applied by courts. It may nonetheless exert considerable influence on both
righteous" men may endeavour to rule their own lives according to what they
consider to be truly the law. A student of western societies may well in a positivist
perceptive concentrate attention upon the rules enacted by legislatures and applied
by court or, alternatively, in a sociological perspective, classify as law only those
rules which are really observed as a matter of practice. This difference in approach is
not a source of any real inconvenience because in western societies there is a large
degree of equivalence between justice, positive law and social manners. The same
cannot however be said of non-western societies where "rules of law" (in the
western sense) remain unorganized, fragmentary and unstable, and where there is
generally feeling that true law is to be found elsewhere than in legislation, custom or
judicial decisions. Without taking sides in the debate between positivists and
advocates of natural law, Muslim and Hindu law, therefore, must be included within
the major contemporary legal systems.
- Jewish law, despite its historical and philosophical interest, must be omitted because
its sphere of influence is incomparably less than that the other two. Far East The
situation in the Far East, especially China is completely different. Here there is no
question of studying an ideal law distant from rules laid down by legislators or simply
followed in practice: here the very value of law itself has traditionally been put into
question. In the West, and in Islamic and Hindu communities, law is held to be a
necessary part of. indeed a basis for, society. Good social order implies the primacy
of law: men must live according to law and, where necessary, be prepared to fight
for the supremacy of law; administrative authorities, no less than any other part of
Philippines would fall into this group.
- And lastly, but from another point of view, the Romano-Germanic and Common law
families are included in the same deliberately ignominious term of "capitalist" or
"bourgeois laws" by jurists of the socialist camp, made up of the Sovietaion and
those countries that have used its law as a model or which, like the U.S.S.R. profess
an adherence to Marxist-Leninist teachings. Black Africa and Malagasy Republic The
preceding observations regarding the Far East apply as well to the black African
countries and the Malagasy Republic (Madagascar). There too, in milieux in which
the community cohesion prevails over any developed sense of individualism: the
principal objective is the maintenance or restoration of harmony rather than respect
for law. The Western laws adopted in Africa are often hardly more than a veneer, the
vast majority of the population still lives according to traditional ways which do not
comprise what we in the West call law and without heed to what is very often
nothing more than an artificially implanted body of rules.
13

 Speech by Dr.B.R.Ambedkar
o Two questions to be asked about the Indian constitution: 1. What is the form of
government that is envisaged in the constitution; 2. What is the form of the constitution.
[Form of Government discussion underneath]
o In the Draft Constitution there is placed at the head of the Indian Union a functionary
who is called the President of the Union. The title of this functionary reminds one of the
President of the United States. But beyond identity of names there is nothing in
common between the form of Government prevalent in America and the form of
Government proposed under the Draft Constitution. The American form of Government
is called the Presidential system of Government. What the Draft Constitution proposes is
the Parliamentary system. The two are fundamentally different. (so that means, the
form of government – parliamentary system)
o Under the Presidential system of America, the President is the Chief head of the
Executive. The administration is vested in him. Under the Draft Constitution the
President occupies the same position as the King under the English Constitution. He is
the head of the State but not of the Executive. He represents the Nation but does not
rule the Nation. He is the symbol of the nation. His place in the administration is that of
a ceremonial device on a seal by which the nation's decisions are made known. Under
the American Constitution the President has under him Secretaries in charge of different
Departments. In like manner the President of the Indian Union will have under him
Ministers in charge of different Departments of administration. Here again there is a
fundamental difference between the two. The President of the United States is not
bound to accept any advice tendered to him by any of his Secretaries. The President of
the Indian Union will be generally bound by the advice of his Ministers. He can do
nothing contrary to their advice nor can he do anything without their advice. The
President of the United States can dismiss any Secretary at any time. The President of
the Indian Union has no power to do so long as his Ministers command a majority in
Parliament.
o The Presidential system of America is based upon the separation of the Executive and
the Legislature. So that the President and his Secretaries cannot be members of the
Congress. The Draft Constitution does not recognise this doctrine. The Ministers under
the Indian Union are members of Parliament. Only members of Parliament can become
Ministers. Ministers have the same rights as other members of Parliament, namely, that
they can sit in Parliament, take part in debates and vote in its proceedings. Both systems
of Government are of course democratic and the choice between the two is not very
easy. A democratic executive must satisfy two conditions - (1) it must be a stable
executive and (2) it must be a responsible executive.
o You can have a system which can give you more stability but less responsibility or you
can have a system which gives you more responsibility but less stability. The American
and the Swiss systems give more stability but less responsibility. The British system on
the other hand gives you more responsibility but less stability. The reason for this is
obvious. The American Executive is a non-Parliamentary Executive which means that it is
not dependent for its existence upon a majority in the Congress, while the British system
is a Parliamentary Executive which means that it is not dependent for its existence upon
a majority in the Congress, while the British system is a Parliamentary Executive which
means that it is dependent upon a majority in Parliament. Being a non-Parliamentary
Executive, the Congress of the United States cannot dismiss the Executive. A
14

Parliamentary Government must resign the moment it loses the confidence of a majority
of the members of Parliament. Looking at it from the point of view of responsibility, a
non-Parliamentary Executive being independent of parliament tends to be less
responsible to the Legislature, while a Parliamentary Executive being more dependent
upon a majority in Parliament become more responsible. The Parliamentary system
differs from a non-Parliamentary system in as much as the former is more responsible
than the latter but they also differ as to the time and agency for assessment of their
responsibility. Under the non-Parliamentary system, such as the one that exists in the
U.S.A., the assessment of the responsibility of the Executive is periodic. It is done by the
Electorate. In England, where the Parliamentary system prevails, the assessment of
responsibility of the Executive is both daily and periodic. The daily assessment is done by
members of Parliament, through questions, Resolutions, No-confidence motions,
Adjournment motions and Debates on Addresses. Periodic assessment is done by the
Electorate at the time of the election which may take place every five years or earlier.
The Daily assessment of responsibility which is not available under the American system
is it is felt far more effective than the periodic assessment and far more necessary in a
country like India. The Draft Constitution in recommending the Parliamentary system of
Executive has preferred more responsibility to more stability. (the answer as to what is
the form of government system in India)
[Form of Constitution discussion underneath]
o Two principal forms of the Constitution are known to history - one is called Unitary and
the other Federal. The two essential characteristics of a Unitary Constitution are: (1) the
supremacy of the Central Polity and (2) the absence of subsidiary Sovereign polities.
Contrariwise, a Federal Constitution is marked: (1) by the existence of a Central polity
and subsidiary polities side by side, and (2) by each being sovereign in the field assigned
to it. In other words Federation means the establishment of a Dual Polity. The Draft
Constitution is, Federal Constitution inasmuch as it establishes what may be called a
Dual Polity. This Dual Polity under the proposed Constitution will consist of the Union at
the Centre and the States at the periphery each endowed with sovereign powers to be
exercised in the field assigned to them respectively by the Constitution.
o The American polity is also a dual polity, one of it is known as the Federal Government
and the other States which correspond respectively to the Union Government and the
States Government of the Draft Constitution. Under the American Constitution the
Federal Government is not a mere league of the States nor are the States administrative
units or agencies of the Federal Government. In the same way the Indian Constitution
proposed in the Draft Constitution is not a league of States nor are the States
administrative units or agencies of the Union Government.
o In the U.S.A. this dual polity is followed by a dual citizenship. In the U.S.A. there is a
citizenship of the U.S.A. But there is also a citizenship of the State. No doubt the rigours
of this double citizenship are much assuaged by the fourteenth amendment to the
Constitution of the United States which prohibits the States from taking away the rights,
privileges and immunities of the citizen of the United States. In short, there are a
number of rights that a State can grant to its own citizens or residents that it may and
does legally deny to non-residents, or grant to non-residents only on more difficult
terms than those imposed on residents. These advantages, given to the citizen in his
own State, constitute the special rights of State citizenship. Taken all together, they
15

amount to a considerable difference in rights between citizens and non-citizens of the

State.
o The proposed Indian Constitution is a dual polity with a single citizenship. There is only
one citizenship for the whole of India. It is Indian citizenship. There is no State
citizenship. Every Indian has the same rights of citizenship, no matter in what State he
resides. The dual polity of the proposed Indian Constitution differs from the dual polity
of the U.S.A. in another respect. In the U.S.A. the Constitutions of the Federal and the
States Governments are loosely connected. In describing the relationship between the
Federal and State Government in the U.S.A., Bryce has said:
"The Central or national Government and the State Governments may be compared
to a large building and a set of smaller buildings standing on the same ground, yet
distinct from each other."
Distinct they are, but how distinct are the State Governments in the U.S.A. from the
Federal Government? Some idea of this distinctness may be obtained from the
following facts:
1. Subject to the maintenance of the republican form of Government, each State in
America is free to make its own Constitution.
2. The people of a State retain forever in their hands, altogether independent of the
National Government, the power of altering their Constitution.
o This is not true of the proposed Indian Constitution. No States (at any rate those in Part
I) have a right to frame its own Constitution. The Constitution of the Union and of the
States is a single frame from which neither can get out and within which they must
work.
o But there are some other special features of the proposed Indian Federation which mark
it off not only from the American Federation but from all other Federations. All federal
systems including the American are placed in a tight mould of federalism. No matter
what the circumstances, it cannot change its form and shape. It can never be unitary. On
the other hand the Draft Constitution can be both unitary as well as federal according to
the requirements of time and circumstances. In normal times, it is framed to work as a
federal system. But in times of war it is so designed as to make it work as though it was a
unitary system. Once the President issues a Proclamation which he is authorised to do
under the Provisions of Article 275, the whole scene can become transformed and the
State becomes a unitary state. The Union under the Proclamation can claim if it wants
(1) the power to legislate upon any subject even though it may be in the State list, (2)
the power to give directions to the States as to how they should exercise their executive
authority in matters which are within their charge, (3) the power to vest authority for
any purpose in any officer, and (4) the power to suspend the financial provisions of the
Constitution. Such a power of converting itself into a unitary State no federation
possesses. This is one point of difference between the Federation proposed in the Draft
Constitution, and all other Federations we know of.
o Federalism is described as a weak if not an effete form of Government. There are two
weaknesses from which Federation is alleged to suffer. One is rigidity and the other is
legalism. That these faults are inherent in Federalism, there can be no dispute. A Federal
Constitution cannot but be a written Constitution and a written Constitution must
necessarily be a rigid Constitution. A Federal Constitution means division of Sovereignty
by no less a sanction than that of the law of the Constitution between the Federal
Government and the States, with two necessary consequences (1) that any invasion by
16

the Federal Government in the field assigned to the States and vice versa is a breach of
the Constitution and (2) such breach is a justiciable matter to be determined by the
Judiciary only. This being the nature of federalism, a federal Constitution have been
found in a pronounced form in the Constitution of the United States of America.
o In assuaging the rigour of rigidity and legalism the Draft Constitution follows the
Australian plan on a far more extensive scale than has been done in Australia. Like the
Australian Constitution, it has a long list of subjects for concurrent powers of legislation.
Under the Australian Constitution, concurrent subjects are 39. Under the Draft
Constitution they are 37. Following the Australian Constitution there are as many as six
Articles in the Draft Constitution, where the provisions are of a temporary duration and
which could be replaced by Parliament at any time by provisions suitable for the
occasion. The biggest advance made by the Draft Constitution over the Australian
Constitution is in the matter of exclusive powers of legislation vested in Parliament.
While the exclusive authority of the Australian Parliament to legislate extends only to
about 3 matters, the authority of the Indian Parliament as proposed in the Draft
Constitution will extend to 91 matters. In this way the Draft Constitution has secured the
greatest possible elasticity in its federalism which is supposed to be rigid by nature.
o It is not enough to say that the Draft Constitution follows the Australian Constitution or
follows it on a more extensive scale. What is to be noted is that it has added new ways
of overcoming the rigidity and legalism inherent in federalism which are special to it and
which are not to be found elsewhere.
o First is the power given to Parliament to legislate on exclusively provincial subjects in
normal times. I refer to Articles 226, 227 and 229. Under Article 226 Parliament can
legislate when a subject becomes a matter of national concern as distinguished from
purely Provincial concern, though the subject is in the State list, provided are solution is
passed by the Upper Chamber by 2/3rd majority in favour of such exercise of the power
by the Centre. Article 227 gives the similar power to Parliament in a national emergency.
Under Article 229 Parliament can exercise the same power if Provinces consent to such
exercise. Though the last provision also exists in the Australian Constitution the first two
are a special feature of the Draft Constitution.
o The second means adopted to avoid rigidity and legalism is the provision for facility with
which the Constitution could be amended. The provisions of the Constitution relating to
the amendment of the Constitution divide the Articles of the Constitution into two
groups. In the one group are placed Articles relating to (a) the distribution of legislative
powers between the Centre and the States, (b) the representation of the States in
Parliament, and (c) the powers of the Courts. All other Articles are placed in another
group. Articles placed in the second group cover a very large part of the Constitution and
can be amended by Parliament by a double majority, namely, a majority of not less than
two thirds of the members of each House present and voting and by a majority of the
total membership of each House. The amendment of these Articles does not require
ratification by the States. It is only in those Articles which are placed in group one that
an additional safeguard of ratification by the States is introduced.
o The Draft Constitution has sought to forge means and methods whereby India will have
Federation and at the same time will have uniformity in all basic matters which are
essential to maintain the unity of the country. The means adopted by the Draft
Constitution are three
17

(1) a single judiciary, (2) uniformity-in fundamental laws, civil and criminal, and (3) a
common All-India Civil Service to man important posts. A dual judiciary, a duality of
legal codes and a duality of civil services, as I said, are the logical consequences of a
dual polity which is inherent in a federation. In the U. S. A. the Federal Judiciary and
the State Judiciary are separate and independent of each other. The Indian
Federation though a Dual Polity has no Dual Judiciary at all. The High Courts and the
Supreme Court form one single integrated Judiciary having jurisdiction and providing
remedies in all cases arising under the constitutional law, the civil law or the criminal
law. This is done to eliminate all diversity in all remedial procedure. Canada is the
only country which furnishes a close parallel. The Australian system is only an
approximation.
o the critics have had to say about it. It is said that there is nothing new in the Draft
Constitution, that about half of it has been copied from the Government of India Act of
1935 and that the rest of it has been borrowed from the Constitutions of other
countries. Very little of it can claim originality.
o Given these facts, all Constitutions in their main provisions must look similar. The only
new things, if there can be any, in a Constitution framed so late in the day are the
variations made to remove the faults and to accommodate it to the needs of the
country.

o While everybody recognizes the necessity of the diffusion of Constitutional morality for
the peaceful working of a democratic Constitution, there are two things interconnected
with it which are not, unfortunately, generally recognized. One is that the form of
administration has a close connection with the form of the Constitution. The form of the
administration must be appropriate to and in the same sense as the form of the
Constitution. The other is that it is perfectly possible to pervert the Constitution, without
changing its form by merely changing the form of the administration and to make it
inconsistent and opposed to the spirit of the Constitution. It follows that it is only where
people are saturated with Constitutional morality such as the one described by Grote
the historian that one can take the risk of omitting from the Constitution details of
administration and leaving it for the Legislature to prescribe them. The question is, can
we presume such a diffusion of Constitutional morality? Constitutional morality is not a
natural sentiment. It has to be cultivated. We must realize that our people have yet to
learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially
undemocratic.
o Another criticism against the Draft Constitution is that no part of it represents the
ancient polity of India.

o I hold that these village republics have been the ruination of India. I am therefore
surprised that those who condemn Provincialism and communalism should come
forward as champions of the village. What is the village but a sink of localism, a den of
ignorance, narrow-mindedness and communalism? I am glad that the Draft Constitution
has discarded the village and adopted the individual as its unit.
o The Draft Constitution is also criticised because of the safeguards it provides for
minorities.
18

o In this country both the minorities and the majorities have followed a wrong path. It is
wrong for the majority to deny the existence of minorities. It is equally wrong for the
minorities to perpetuate themselves. A solution must be found which will serve a double
purpose. It must recognize the existence of the minorities to start with. It must also be
such that it will enable majorities and minorities to merge someday into one. The
solution proposed by the Constituent Assembly is to be welcomed because it is a
solution which serves this twofold purpose. To diehards who have developed a kind of
fanaticism against minority protection I would like to say two things. One is that
minorities are an explosive force which, if it erupts, can blow up the whole fabric of the
State. The history of Europe bears ample and appalling testimony to this fact. The other
is that the minorities in India have agreed to place their existence in the hands of the
majority. In the history of negotiations for preventing the partition of Ireland, Redmond
said to Carson "ask for any safeguard you like for the Protestant minority but let us have
a United Ireland. "Carson's reply was "Damn your safeguards, we don't want to be ruled
by you." No minority in India has taken this stand. They have loyally accepted the rule of
the majority which is basically a communal majority and not a political majority. It is for
the majority to realize its duty not to discriminate against minorities. Whether the
minorities will continue or will vanish must depend upon this habit of the majority. The
moment the majority loses the habit of discriminating against the minority, the
minorities can have no ground to exist. They will vanish.
o The most criticized part of the Draft Constitution is that which relates to Fundamental
Rights. It is said that Article 13 which defines fundamental rights is riddled with so many
exceptions that the exceptions have eaten up the rights altogether. It is condemned as a
kind of deception. In the opinion of the critics fundamental rights are not fundamental
rights unless they are also absolute rights. The critics rely on the Constitution of the
United States and to the Bill of Rights embodied in the first ten Amendments to that
Constitution in support of their contention. It is said that the fundamental rights in the
American Bill of Rights are real because they are not subjected to limitations or
exceptions.
o It is incorrect to say that fundamental rights are absolute while non-fundamental rights
are not absolute. The real distinction between the two is that non-fundamental rights
are created by agreement between parties while fundamental rights are the gift of the
law. Because fundamental rights are the gift of the State it does not follow that the State
cannot qualify them.
o it is wrong to say that fundamental rights in America are absolute. The difference
between the position under the American Constitution and the Draft Constitution is one
of form and not of substance. That the fundamental rights in America are not absolute
rights is beyond dispute. In support of every exception to the fundamental rights set out
in the Draft Constitution one can refer to at least one judgment of the United States
Supreme Court. It would be sufficient to quote one such judgment of the Supreme Court
in justification of the limitation on the right of free speech contained in Article 13 of the
Draft Constitution. In Gitlow Vs. New York in which the issue was the constitutionality of
a New York "criminal anarchy" law which purported to punish utterances calculated to
bring about violent change, the Supreme Court said:
o "It is a fundamental principle, long established, that the freedom of speech and of the
press, which is secured by the Constitution, does not confer an absolute right to speak or
publish, without responsibility, whatever one may choose, or an unrestricted and
19

unbridled license that gives immunity for every possible use of language and prevents
the punishment of those who abuse this freedom."
o (What the Draft Constitution has done is that instead of formulating fundamental rights
in absolute terms and depending upon our Supreme Court to come to the rescue of
Parliament by inventing the doctrine of police power, it permits the State directly to
impose limitations upon the fundamental rights. There is really no difference in the
result. What one does directly the other does indirectly. In both cases, the fundamental
rights are not absolute.)
o In the Draft Constitution the Fundamental Rights are followed by what are called
"Directive Principles". It is a novel feature in a Constitution framed for Parliamentary
Democracy. The only other constitution framed for Parliamentary Democracy which
embodies such principles is that of the Irish Free State. These Directive Principles have
also come up for criticism. It is said that they are only pious declarations. They have no
binding force.

o If it is said that the Directive Principle have no legal force behind them, I am prepared to
admit it. But I am not prepared to admit that they have no sort of binding force at all.
Nor am I prepared to concede that they are useless because they have no binding force
in law.
o The Directive Principles are like the Instrument of Instructions which were issued to the
Governor-General and to the Governors of the Colonies and to those of India by the
British Government under the 1935 Act. Under the Draft Constitution it is proposed to
issue such instruments to the President and to the Governors. The texts of these
Instruments of Instructions will be found in Schedule IV of the Constitution. What are
called Directive Principles is merely another name for Instrument of Instructions. The
only difference is that they are instructions to the Legislature and the Executive. Such a
thing is to my mind to be welcomed. Wherever there is a grant of power in general
terms for peace, order and good government, it is necessary that it should be
accompanied by instructions regulating its exercise another reason. The Draft
Constitution as framed only provides a machinery for the government of the country. It
is not a contrivance to install any particular party in power as has been done in some
countries. Who should be in power is left to be determined by the people, as it must be,
if the system is to satisfy the tests of democracy. But whoever captures power will not
be free to do what he likes with it. In the exercise of it, he will have to respect these
instruments of instructions which are called Directive Principles. He cannot ignore them.
He may not have to answer for their breach in a Court of Law. But he will certainly have
to answer for them before the electorate at election time. What great value these
directive principles possess will be realized better when the forces of right contrive to
capture power.
o Some critics have said that the Centre is too strong. Others have said that it must be
made stronger. The Draft Constitution has struck a balance. However much you may
deny powers to the Centre, it is difficult to prevent the Centre from becoming strong.
Conditions in modern world are such that centralization of powers is inevitable. One has
only to consider the growth of the Federal Government in the U.S.A. which,
notwithstanding the very limited powers given to it by the Constitution, has out-grown
its former self and has overshadowed and eclipsed the State Governments. This is due to
modern conditions. The same conditions are sure to operate on the Government of India
20

and nothing that one can do will help to prevent it from being strong. On the other
hand, we must resist the tendency to make it stronger. It cannot chew more than it can
digest. Its strength must be commensurate with its weight. It would be a folly to make it
so strong that it may fall by its own weight.
o The Draft Constitution is criticized for having one sort of constitutional relations
between the Centre and the Provinces and another sort of constitutional relations
between the Centre and the Indian States. In a situation such as maybe created by war,
such limitations on the exercise of vital powers in some areas may bring the whole life of
the State in complete jeopardy. What is worse is that the Indian States under the Draft
Constitution are permitted to maintain their own armies. I regard this as a most
retrograde and harmful provision which may lead to the break-up of the unity of India
and the overthrow of the Central Government. The Drafting Committee, if I am not
misrepresenting its mind, was not at all happy over this matter. They wished very much
that there was uniformity between the Provinces and the Indian States in their
constitutional relationship with the Centre.
o But we may take courage from what happened in Germany. The German Empire as
founded by Bismark in 1870 was acomposite State, consisting of 25 units. Of these 25
units, 22 were monarchical States and 3 were republican city States. This distinction, as
we all know, disappeared in the course of time and Germany became one land with one
people living under one Constitution. The process of the amalgamation of the Indian
States is going to be much quicker than it has been in Germany. On the 15th August
1947 we had 600 Indian States in existence. Today by the integration of the Indian States
with Indian Provinces or merger among themselves or by the Centre having taken the
mas Centrally Administered Areas there have remained some 20/30 States as viable
States. This is a very rapid process and progress.
o Some critics have taken objection to the description of India in Article 1 of the Draft
Constitution as a Union of States. It is said that the correct phraseology should be a
Federation of States. It is true that South Africa which is a unitary State is described as a
Union. But Canada which is a Federation is also called a Union. Thus the description of
India as a Union, though its constitution is Federal, does no violence to usage.
o The provisions relating to amendment of the Constitution have come in for a virulent
attack at the hands of the critics of the Draft Constitution. It is said that the provisions
contained in the Draft make amendment difficult. It is proposed that the Constitution
should be amendable by a simple majority at least for some years. The Powers of
amendment are left with the Legislature Central and Provincial. It is only for
amendments of specific matters - and they are only few – that the ratification of the
State legislatures is required. All other Articles of the Constitution are left to be
amended by Parliament. The only limitation is that it shall be done by a majority of not
less than two-thirds of the members of each House present and voting and a majority of
the total membership of each House. It is difficult to conceive a simpler method of
amending the Constitution. The future Parliament if it met as a Constituent Assembly, its
members will be acting as partisans seeking to carry amendments to the Constitution to
facilitate the passing of party measures which they have failed to get through Parliament
by reason of some Article of the Constitution which has acted as an obstacle in their way
Parliament will have an axe to grind while the Constituent Assembly has none. That is
the difference between the Constituent Assembly and the future Parliament. That
explains why the Constituent Assembly though elected on limited franchise can be
21

trusted to pass the Constitution by simple majority and why the Parliament though
elected on adult suffrage cannot be trusted with the same power to amend it.

 “The Indian Legal System” Joseph Minattur

o (This article mainly speaks of the influence or the assistance the other countries played
in making the Indian law)
o Three main streams join together to form the Indian Legal system. That of the common
law is perhaps the most dominant among them. Then there is the stream of law
springing from religion. The third is that of civil (“romanist”) law.
o The third law Commission, appointed in 1861, was enjoined to prepare for India a body
of substantive law, in preparing which the law of England should be used as a basis. The
fourth law Commission expressed a similar view when it recommended in 1879 that
English law should be made the basis in a great measure of our future Codes, but its
materials should be recast rather than adopted without modification. It, however, added
that in recasting those materials due regard should be had to Native habits and modes
of thought.
o (Green highlighted portion: Like Indian law had an influence of other legal system,
similarly the Scots legal system has essence of England law)
o (Purple highlighted portion: The Indian law has not blindly adopted the British law, it has
altered to meet the needs of its citizen. Also, having resemble to some laws of French
and New York system. Some parts of the law has resembles to England, but the latter
part of that same law resembles to a different nation. So it is a mix and match to meet
the socio-economic situation of India)
o (Underline: How the system of Equity and Common law exists in England, but not in
India)
o (Pink highlighted portion: Still in India French and Portuguese law is applied as there are
some French people living in India as Indian citizen, so for them it is their personal law)
o (Blue highlighted portion): the effect of the nation if India has a Indian civil code.
 “Saint Granville Gospel: Reflection” by Upendra Baxi
 Principles of Constitutionalism
o If constitutional law itself is inadequate, the nature of democracy and rule of law within
a country is affected. The structure of modern nations has been shaped with
government being divided into executive, legislative and judicial bodies, with the
commonly accepted notion that these bodies and their powers must be separated. Of
course, the separation of powers does not mean these bodies function alone, rather
they work interdependently, but maintain their autonomy. Other tenets include the idea
of limited government and the supremacy of law. Together, these can be termed the
concept of constitutionalism. In other words, constitutionalism is the idea that
government should be limited in its powers and that its authority depends on its
observation of these limitations.
o it is "a complex of ideas, attitudes, and patterns of behaviour elaborating the principle
that the authority of government derives from and is limited by a body of fundamental
law". A political organization is constitutional to the extent that it "contain[s]
institutionalized mechanisms of power control for the protection of the interests and
liberties of the citizenry, including those that may be in the minority". As described by
political scientist and constitutional scholar David Fellman: It may be said that the
22

touchstone of constitutionalism is the concept of limited government under a higher

law.
o Constitutionalism’ means limited government or limitation on government. It is
antithesis of arbitrary powers. Constitutionalism recognizes the need for government
with powers but at the same time insists that limitation be placed on those powers. The
antithesis of constitutionalism is despotism. A government which goes beyond its limits
loses its authority and legitimacy. Therefore, to preserve the basic freedoms of the
individual, and to maintain his dignity and personality, the Constitution should be
permeated with ‘Constitutionalism’; it should have some inbuilt restrictions on the
powers conferred by it on governmental organs.
o Louis Henkin defines constitutionalism as constituting the following elements: (1)
government according to the constitution; (2) separation of power; (3) sovereignty of
the people and democratic government; (4) constitutional review; (5) independent
judiciary; (6) limited government subject to a bill of individual rights; (7) controlling the
police; (8) civilian control of the military; and (9) no state power, or very limited and
strictly circumscribed state power, to suspend the operation of some parts of, or the
entire, constitution. Broadly speaking, Henkin's nine elements of constitutionalism can
be divided into two groups, one concerns power construction and power lodging; and
the other deals with rights protection. These two groups of institutional arrangements
work together to ensure the supremacy of the constitution, the existence of limited yet
strong government, and the protection of basic freedom.
o Genuine democracies rest on the sovereignty of the people, not the rulers. Elected
representatives are to exercise authority on behalf of the people, based on the will of
the people. Without genuine democracy, there can be no constitutionalism.
o Constitutionalism and rule of law: Genuine constitutionalism therefore provides a
minimal guarantee of the justice of both the content and the form of law. On the other
hand, constitutionalism is safeguarded by the rule of law. Only when the supremacy of
the rule of law is established, can supremacy of the constitution exist. Constitutionalism
additionally requires effective laws and their enforcement to provide structure to its
framework.
o In I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors. view taken by the Supreme
Court - The principle of constitutionalism is now a legal principle which requires control
over the exercise of Governmental power to ensure that it does not destroy the
democratic principles upon which it is based. These democratic principles include the
protection of fundamental rights. The principle of constitutionalism advocates a check
and balance model of the separation of powers, it requires a diffusion of powers,
necessitating different independent centers of decision making. The protection of
fundamental constitutional rights through the common law is main feature of common
law constitutionalism.
o In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. “The constitutionalism
or constitutional system of Government abhors absolutism - it is premised on the Rule of
Law in which subjective satisfaction is substituted by objectivity provided by the
provisions of the Constitution itself.” Constitutionalism is about limits and aspirations.
As observed by Chandrachud, CJ, in Minerva Mills Ltd. – “The Constitution is a precious
heritage and, therefore, you cannot destroy its identity'”
 Legal system in India: Overview by Ashish Bhan and Mohit Rohatgi
23

o Indian Constitution is the longest written constitution of any sovereign country in the
world.
o Drafted and adopted by the constituent assembly of elected representatives of the
people and came into effect on 26 January 1950.
o Constitution is not a creation of the parliament, but of people of India and is supreme.
o The constitution of India neither purely federal nor purely unitary, and is widely
considered as quasi-federal in nature.
o Head of State: President is the constitutional head of union of India, commander in chief
of the armed forces and head of government. But the real executive power is in the PM
and the council of minister. At state level, the governors are the head of the states, the
executive powers are exercised by the CM and its council of members.
o Indian constitution has adopted a bicameral legislature at the union level. The
parliament comprises of two houses: 1. Lok Sabha (house of the people); and 2. Rajya
Sabha (council of states)
o The constitution of India does not have an express provision for separation of power,
but it runs through the constitution of India.
o India’s parliamentary system empowers legislating at the union level by the Indian
parliament, and at the state level by the state legislature.
o Emergencies reserved for the executive:
a. National emergency;
b. State emergency – if the constitutional machinery of the state has failed, that is, the
governance cannot be carried out in a constitutional manner. Loss of majority of the
ruling party in the state government, collapse of coalition or death of the CM of the
state has been prominent imposition of state emergency. Once declared, the
president assumes all executive and administrative power of the state.
c. financial emergency – if the financial stability or the credit of India is threatened.
o India is a signatory to the Universal Declaration of Human Rights. Most are incorporated
as fundamental rights.
o International sources of law can generally be enforced in India if they have been ratified
and incorporated in Indian law. Sometimes can be applied in the interest of justice.
o In civil law, the standard of proof is “preponderance of probabilities” – occurrence of
something in a certain manner was more likely than not.
o Criminal law, the standard of proof is “beyond all reasonable doubt”
o Verdict in Civil law for claimant will typically be a money decree, declaratory decree, or
both. For the defendant may result in order to pay costs.
o Only losses that have been proved can be compensated as Indian law does not provide
for windfall.
 The Indian Judicial System by Punam S Khanna
o Specialised institution such as courts were not present in early societies for the
settlement of disputes. The earliest modes of justice took the form of ‘revenge’, which
was a private matter. In course of time, kings acquired the powers to maintain law and
order and likewise assumed the responsibility of punishing those that committed crimes
against what the British called the ‘kings peace’. With the emergence and consolidation
of state power, the administration of justice came to be regarded as exclusively falling
within the domain of the state.
o History of the Judicial system in India
24

Ancient India acknowledged the importance of the King as one who dispensed justice
through the practice of Danda or punishment. In the Vedic and pre-Mauryan times, the
king presided over the law courts and was guided in his duties by the law codes or
smritis.

Sasita that was presided over by the king – there were laws of procedure and evidence
as well as a code of conduct of judges. Justice was dispended according to the norms laid
down in the scriptures – vedas, Dharmasutras, Vedangas, Puranas as well as customs
and usage of commodities

During the Mauryan period the influence of Kautilya’s Arthasastra could clearly be seen
– two kinds of courts existed during the Mauryan period – Dharmasthiya civil cases and
Kantakasodhana other criminal cases.

The Mughal period saw the predominance of Islamic jurisprudence which drew heavily
from the Quran and the Muslim law of Shariat – Akbar made some attempts to establish
one uniform system of justice for all – Three kinds of courts – courts of religious law,
courts for secular cases and courts dealing with political cases.

British came as merchants – three presidency towns of Madras, Bombay and Calcutta
has some form of adjudication of disputes set up by the East India Company – The
Charter of 1726 set up uniform judicial institution in these three town – East India
Company – Supreme Court

o Judiciary Today
- India has a unified judicial system with the Supreme court at its apex, unlike the UK
which has a dual system of courts.
- Population to judge ratio is one of the lowest in India. According to the Law
Commission of India, there is a need to have 50 judges per 10 lakh persons.
- Delay in the disposal of the cases is a violation of the fundamental right to life under
art.21 of Constitution.
- Hussainana Khatoon v Home Secretary, state of Bihar = Speed recovery of trial –
art.21
o The supreme Court
- The supreme interpreter of the constitution
- In 1998, the president sought clarification on issues concerning the appointment of
Apex court judges and the transfer of High Court judges. A nine judge bench of the
Supreme Court in In Re Presidential Reference in 1999 reaffirmed the primacy of the
Chief Justice in the appointment of judges of the Supreme Court. The court has
declared that the CJI should consult a collegium of the four senior most judges of the
Apex court in the matter of appointment of judges to the SC.
- Departure from the seniority principle
25

-One of the defining characteristics of a liberal democratic system is the

independence of its judiciary and this depends on the manner of selection,
appointment and tenure of the judges. Security of tenure – Art.124(4)
- The supreme court sits in Bench of at least 5 to decide a case involving a substantial
question of law as to the interpretation of the constitution or for hearing a reference
by the president under art.143.
- The SC sits in bench of at least five to decide a case involving a substantial question
of law as to the interpretation of the constitution or for hearing a reference by the
president under Article 143. The concurrence of a majority of judges present at the
hearing of a case is necessary for any judgement or order. When the Bench consists
of two judges and they differ, the matter is referred to the CJ for constituting a larger
bench. Dissenting judgements can be given. The law declared by the SC shall be
binding on all the courts within the territory of India. The law declared by the SC is
the law of the land and judgements of the SC are sources of law. Indian legal system
adheres to the principle of binding precedent (stare decisis). This principle is
necessary in order to achieve consistency in judicial pronouncements. Article 141
gives a constitutional status to this doctrine.
o Court of Record
- A court of record is one where of the acts and judicial proceedings are enrolled for
perpetual memory and testimony and which has authority to fine and imprison for
contempt of itself and of subordinate courts.
- The SC has held that its power to punish for contempt under article 129 is not
confined to its own contempt but that it extends to all courts and tribunals
subordinate to it in the country.
o Jurisdiction of the Supreme court
- (a) Writ Jurisdiction:
Guardian of the fundamental rights and power to enforce them under the article 31
of the constitution.
High court also possess under article 226
- (b) Original Jurisdiction
The SC has original and exclusive jurisdiction in inter-governmental disputes, i.e., in
any dispute (1) between the government of India and one or more states, (2)
between the government of India and any states or states on one side and one or
more states on the other, (3) between two or more states, if an in so far as the
dispute involves any question (whether of law or of fact) on which the existence or
extent of a legal right depends.
This jurisdiction given to the SC is extremely important in a federal structure where
powers have been clearly delineated between the centre and the states and an
impartial authority is needed to adjudicate if the dispute arises.
Article 131 imposes two limitations on the exercise of this power:
(1) As to the nature of the party concerned – the SC cannot entertain suits
brought by private individual against the Government of India
(2) As to the subject matter – the dispute must involve any question on
which the existence or the extent of a legal right depends.
- (C) Appellate Jurisdiction
SC is the final court of appeal having constitutional and criminal jurisdiction under
article 132 to 136.
26

All appeals from the HC lie with the SC if a substantial question of interpretation of
the constitution is involved, and also if the HC grants a certificate to the effect.
Article 134 is important because it gives the SC limited criminal jurisdiction in
exceptional cases, only where the demand of justice requires interference by the HC
in the land.
The Parliament may by law confer on the SC, any further power to appeal from any
judgement, final order or sentence in a criminal proceedings of a HC in the territory
of India subject to such conditions and limitation as may be specified in such law.
If the HC has applied the correct principles in reversing an order of acquittal, the SC
does not interfere with the HC’s order of conviction or reassess the evidence.
Special leave to appeal = Art 136
Pritam Singh v State = power under article 136 is to be exercised sparingly and only
in exceptional cases.
- (d) Advisory Jurisdiction
Article 143 = The president can refer to the SC a question of law or fact which in his
opinion is of such a nature and of such public importance, that is expedient to obtain
its opinion upon it.
The advisory opinion given by the SC is not binding on the president but the
convention is that he normally honours it.
- (e ) Review Jurisdiction
The SC has the power to review its own judgement or order.
This special power is exercised in accordance with and subject to any parliamentary
legislation and rules made by the court itself under its rule making power.
o Power of judicial review
- This is the power of the court to enquire whether a law or executive order is in
violation of a written constitution and if the court concludes that it is so, the said law
or executive order can be declared unconstitutional and void.
- This is a unique power given to the SC due to which it can review the legislative
enactments both of parliament and of state legislatures as well as the actions of the
executive and administrative arms of the government.
- Power of judicial review is considered part of the basic structure of the constitution;
the court as a final interpreter of the constitution can determine if the other two
organs are functioning within their constitutional limits.
o Power to do complete justice
- Article 142(1)
- The court has emphasized that the power given to it under article 142 is conceived
to meet situations which cannot effectively and appropriately be tackled by the
existing legal provisions.
- This power is of a supplementary nature and it cannot be exercised against a
fundamental right, nor can it contravene a constitutional provision.
- In Delhi Judicial Service Association vs State of Gujarat, the SC observed that its
power under article 142(1) to do complete justice ‘is at entirely different level and of
a different quality’. The SC has left the power under art.142 ‘undefined and
uncatalogued’ so that it means ‘elastic enough to be moulded to suit the given
situation’.
- The courts observation is that the plenary jurisdiction under art.142 ‘exists as a
separate and independent basis of jurisdiction apart from the status’. But the court
27

has cautioned time and again that this power should be used with the utmost
restraint so that there is no interference with the performance of duties of other
authorities in accordance with the law.
- Art.129, 136 and 142 highlight the supremacy of the SC.
- The word ‘justice’ appears only twice in the constitution. The first time it occurs is in
the preamble. This guardianships of ‘justice’ gives the apex court unabated powers.
o The High Court
- The jurisdiction of HC is coterminous with the territorial limits of the state
concerned.
o Composition
- Article 216 provides that every HC shall consist of a CJ and such other judges as the
president may from time to time deem it necessary to appoint.
- The SC has declared that the CJI and CJ of the concerned HC can make
recommendation to the president regarding the strength of the judges in the HC,
which the president needs to act upon.
o Appointments
- HC judges are appointed by the president after consulting the CJI, the governor of
the state concerned and in the case of appointment of judges other than the CJ, the
CJ of the HC.
- After 1999 it has been categorically established that consultation with the CJI
requires consultation with a collegium of judges consisting of CJI and any two senior
most judges of the SC. The individual opinion of the CJI does not constitute
‘consultation’. In the matter of the transfer of the judges too, the collegium was
enlarged to include the Chief justice of the two high court concerned – one from
where the transfer was being affected and one from the HC to which the transfer
was being made. Any recommendation made by the CJI without complying with the
required norms of consultation would not be binding on the Government of India.
The court has declared that transfer should not be politically motivated.
o Jurisdiction
- HC is the highest court in the state on question of law and for the adjudication of
dispute.
- Only court apart from the SC to interpret the constitution.
o High court enjoy original and Appellant jurisdiction
- Article 226 empowers the HC to issue to any person or authority, including in
appropriate cases, any government orders or writs including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto, and certiorari for the
enforcement of any of the rights conferred by the Part 3 of the constitution and for
any other purpose i.e., for the enforcement of any other legal right.
- These five writs are called prerogative writs and the concept has been borrowed
from English law.
- These 5 writs are called prerogative writs and the concept has been borrowed from
English law. There is a twofold limitation on the power of the HC to issue writs:
I. This power is to be exercised within the territories subject to the jurisdiction of
the HC
II. The person or authority to whom such a writ can be issued must reside within
those territories.
28

-It is only when an action is challenged that the court examines the legality/illegality
of it. The legal remedy provided under the article 226 is at the discretion of the HC
and if it is satisfied that an alternative remedy exists or that certain crucial facts that
have been deliberately suppressed by the petitioner, it can reject the application.
- Appellant jurisdiction: HC is the highest court for appeal and revision in civil and
criminal matters. Appeals are made in the HC in civil cases if a substantial question of
law is involved. In criminal matter, appeal to the HC lie from the court of session, and
sentence of death must be confirmed by the HC.
- Supervisory jurisdiction: Article 227(1) gives the HC power of superintendence over
all the courts and tribunals throughout the territories in relation to which it exercises
jurisdiction. This power is both administrative and judicial in nature. Not only ensure
subordinate tribunals do not exceed the limits of their jurisdiction, but it also has to
ensure that the principles of natural justice are not disregarded. The SC observed in
Waryam Singh v Amar Nath – this power should be exercised sparingly and only in
appropriate cases. Article 228
o Subordinate judiciary
- Lower courts – ‘lower judiciary’ formed the ‘basic structure’ of the Indian legal
system way before the federal court and the SC came into existence.
o Structure of the subordinate judiciary
- The constitution and organisation of the High Court is a central subject and
parliament alone can set up a HC.
- State legislature can create other courts and invest them with power and jurisdiction
to try a wide range of matters whether civil or criminal. They can enlarge their
jurisdiction or alter and amend it.
- Under section 9 of the code of civil procedure 1908, every right of a civil nature can
be enforced in a civil court. Limits on the jurisdiction of a civil court are: (1) Pecuniary
or monetary limits, (2) limits regarding subject matter, and (3) territorial or local
limits.
- Appointments to the subordinate judiciary are made by the Governor in consultation
with the High Court. Under Article 234, appoint- ments of persons to the judicial
service of the State other than the District Judge are made by the Governor of the
State in accordance with the rules made by him in consultation with the High Court
of the State and the State Public Service Commission. The govern ment's control
over the subordinate judiciary ceases after the appointment. It is the High Court
which exercises extensive administrative control over District Courts and courts
subordinate to it in all matters concerning posting, promotion, transfer, grant of
leave etc." This control has been vested in the High Court in order to preserve the
independence of the subordinate judiciary from executive interference. The power
of the High Courts extends to imposing punishments over judicial officers short of
'dismissal' or removal or reduction in rank. These major punishments lie with the
Governor, but action can be taken by the Governor only on the recommendation of
the High Court, which is binding.
- Subordinate civil judiciary
- Subordinate criminal judiciary
o The executive magistrate
- Distinct from the judicial magistrate, are in every district and metropolitan areas are
appointed by the state government and one of them is made the district magistrate.
29

- Power is administrative and quasi-judicial in nature.

o Alternate mechanism – the way forward
- Arbitration and conciliation occupy a prime importance.
- Some other are: Lok Adalat, Nyaya Panchayat, tribunal, etc. These are largely judicial
or quasi-judicial bodies which do not use strict procedural techniques and gathering
of evidence as traditional courts would do. Informal with an implicit or explicit
appeal option to the HC.
- Lok Adalat – handle a lot of disputes especially motor accidents and formed under
the National Legal Services Authority Act 1987.
o Nyaya Panchayat A brief history of the panchayat system
- History of the panchayat system goes back to Vedic times – Panchayat were effective
in dealing with local causes concerning distribution of land among the villagers,
collection of taxes from the proceeds of the land, punishment of offences, etc.
- After independence, the government of India took steps to give local government
real meaning.
- Article 40 of the constitution – provides that the states shall take steps to organise
village panchayat to enable them to function as units of self-government.
- Constitution Seventy third (amendment) act 1993 has now given a constitutional
basis to the panchayat system, and the eleventh schedule of the constitution details
their function.
- The village panchayat elect members of the Nyaya Panchayat from themselves or
the entire village. They deal with civil and criminal offences of petty nature. The
maximum fine they are impose range from Rs 15 to Rs 250. Generally they cannot
pass any sentence of imprisonment.
- The quorum for each bench of the panchayat is usually tree persons.
- Criminal cases can be transferred from a Nyaya Panchayat to a criminal court if the
facts warrant it.
- Panchas can be removed by the executive or grounds of misconduct, corruption,
neglect in the performance of duties.
o Tribunals
- Technical matters dealing with certain specialised matter exclusively.
- Not strictly court, but resemble traditional courts.
- Created by the legislature and have specific judicial power.
- Courts are part of traditional judicial system and deal with variety of disputes.
Tribunal is an agency created by the statue and invested with judicial power in
specific matters. A court of law is presided over by a judge but a tribunal need not be
presided over by person trained in law. A court of law is bound by rules of evidence
and code of civil procedure 1908, but a tribunal is not.
- Some tribunals are composed of technical experts who are better equipped and
trained to deal with specialised problem.
- 323A of the constitution: empowers parliament to set up service tribunal.
o Family courts
- A family court consists of one judge appointed by the State government with the
concurrence of the HC.
- Legal practitioner cannot represent any party to a suit.
30

-The family courts are not bound by the Indian evidence act 1872 and under the
section 9 of the Family Court act 1984 they can follow such procedure as they deem
fit.
- No appeal lies from the decision of a family court if the decree/order was passed
with the consent of both parties. An appeal can lie otherwise only on grounds of
facts and on question of law.
- The family court act 1984, is not a self-contained act. It has to be read along with
other laws, personal laws, and can award only such interim relief as is provided for in
the law under which the petition has been filed.
o Conclusion:
- Courts have emerged as a vital institution in interpreting the constitution and
ensuring justice.
- The principle of social justice is duly enshrined in the constitution and in particularly,
in the directive principles of state policy, which aim at removing social and economic
anomalies from our system. yet the bitter truth is that it is the educated elite, 'the
governing and non- governing elite' (Pareto) that has deprived millions of a life of
equality, of dignity and of economic justice. The credit for transforming attitudes of
the administration, for making the state truly accountable for its apathy towards the
plight of the underprivileged, and for upholding the rights of the common man must
be given to the judiciary, and its creative use of public interest litigation.
 Public Interest Litigation by Parmanand Singh
- Unique phenomena in the Indian constitutional jurisprudence which has no parallel
in the world.
- Protection of the interests of a class or group of person who are either the victim of
governmental lawlessness, or social oppression, or have been denied their
constitutional or legal rights and who are not in a position to approach the court for
redressal of their grievances due to the lack of resources, ignorance, or their
disadvantaged social and economic situation.
- Based on the principle of justice and humanism, and for the protection of human
rights in India.
- New procedure evolved by the Indian supreme court allows any members of public
acting in a bona fide manner to espouse the cause of the victims of human rights
violation.
- Termed as epistolary jurisdiction
- Only a person acting bona fide and having sufficient interest in the proceeding of PIL
has a locus standi and can approach the court to wipe out the tears of the poor and
the needy, suffering from violation of the fundamental rights.
- Cannot be used for another purposes
- Relief granted: compensatory, rehabilitative, restitutive, preventive and curative.
 Indian Judiciary: An Analysis of the Cyclic syndrome of delay, arrears and pendency by
Yashomati
 Mediation – its importance and relevance by Justice R.V.Raveendran
 Overview of the legal profession in India by Amal Kumar Ganguli
 Lecture 1 (16th August 2023): Just introduction
 Lecture 2 (17th August 2023)
o Keshavananda Bharati v State of Kerala AIR 1973 SC 146 – A lot of political relevance.
31

A criticism: art.231 of the German constitution has concept called basic law. More
importantly why SC believed that not everything in the constitution can be amended?
o The question in the above case started with the judgement of: Sajjan Singh v State of
Rajasthan
o Shankari Prasad Singh Deo v UOI, AIR 1951 SC 458
o Gokolnath
o ADM Jabalpur v Shivakant Shukla (1976) Supp SCR 172 [Habeas Corpus]
o Arguments of art.370
o Principles of Constitutionalism (this will be in non-written constitution and written
constitution)
 Lecture 3 (18th August 2023)
 Lecture 4 (22nd August 2023)