India: Know the Indian Legal System

Last Updated: 17 September 2002

By S. S. Sagar Priyatham & K. Prathima


The legal system of a country is part of its social system and reflects the social, political, economic and cultural characteristics of the society. It is therefore, difficult to understand the legal system outside the socio cultural milieu in which it operates. In the case of India the legal system is still alien to the majority of the Indian’s 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 justify for the illiterate, impoverished masses of our country. Nevertheless, the rights and benefits conferred by the laws and constitution offer 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 become essential to every Indian, rich or poor. Man or woman, young or old.

A level 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 the laws- Central, State and Local, institutional structures for enforcements of laws and a cadre of legal personnel endowed with the responsibility of administering the system.

The Constitution: The Fundamental Law of the Land

The constitution of a country is variously describing depending upon the nature of the polity and assumes the character of a federal (several independent units jointed together) or unitary form of Government. India is declared to be a Socialist, Secular, Democratic, Republic. It is said to have a quasi-federal structure. The Constitution of India represents the collective will more than 700 million Indians and, as such, the reservoir of enormous power. It describes the methods by which this power 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 (Central and State Governments. Legislative, Executive and Judicial wings of each Government) and regulates its exercise in its incidence on the people. The form of government is democratic and republican and the method is parliamentary though adult franchise. The goals are spelt out in the Preamble itself. To achieve this goal of dignity of the individual with justice, liberty and equality, the Constitution guarantees certain Fundamental Rights and provides for its easy enforcement through the High Courts and the Supreme Court. These basic Human Rights are expressly laid down in Articles 14 to 30 of the Indian Constitution.

Further, towards achieving the goals set out in the Preamble, the Constitution gives certain Directives to the State to follow in its policies and programmes. These Principles of State Policy have been recognized to be as sacrosanct as the Fundamental Rights. In other words, they together constitute a reference point for State action in every sphere. The Constitution envisages a unique place for the judiciary in the country. Apart from overseeing the exercise of the 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 effective protecting the citizen’s rights through its writ jurisdiction. This offers a cheap and expeditious remedy to the citizen to enforce the guaranteed rights. The Supreme Court recently liberalized the rules so as to enable poor and illiterate citizens to have easy access to courts for enforcing their basic rights.

The Rule of Law is supreme and the independence of judiciary is a living reality. These form the bulwark of democracy and compel every one to abide by the law in his/her own interest. Constitutional government and the principles involved in it ought to be understood and subscribed by every Indian if we are to succeed in our declared goals.

Laws, Civil and Criminal

The laws of the country are too numerous, varied and complex; they are bound to be as large as life itself which is increasingly becoming complex in every sphere. In a welfare state like ours, laws are all 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, State Legislatures and Local Councils make and unmake the laws day in and day out as the 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. 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 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.

Civil laws includes a number of aspects which may be grouped under six or seven major headings such as family law, the law of property, the law of tort, the law of contracts, the law relating to commerce and business, labour law, law of taxation etc.

Criminal law is concerned with public wrongs or wrongs against the order and well being of the society in general. The persons guilty of such wrongs are prosecuted and punished by the state. These wrongs are specified and are defined in the Penal Code and few other special and local laws. One important aspect is that criminal laws insist (apart from a few exceptional offences) on a particular intent of state of mind as a necessary ingredient of a criminal offence. It also recognizes degrees of criminality and gradations of crime. Ignorance of law is never taken as an excuse. Certain situations where guilty intention could not have been entertained such as infancy, insanity, mistake of fact etc., they are recognized as defences to criminal responsibility. Offences are classified on the basis of the objective or otherwise. Thus there are crimes against the human body, property, and reputation of the individual, against the state or against public rights. On a procedural basis they are classified as cognizable and non-cognizable (cognizable are those in which the police can investigate or arrest persons without judicial warrant), bailable and non-bailable, compoundable or otherwise.

Procedural Laws, Civil and Criminal

Most proceedings in the Supreme Court and the High Courts are governed by Rules of Procedure made by the Courts themselves under powers given by the statute. The Civil and Criminal Procedure Codes and Evidence Act do apply to judicial proceedings in these courts as well. The writ jurisdiction under Articles 32 and 226 can be invoked, whenever a person is deprived of his/her fundamental rights. In such situations the citizens can approach these courts even through a letter sent by ordinary post as the Supreme Court has declared that procedure should not be allowed to come in the way of dispensation of justice.

For the enforcement of civil rights and obligations a suit before a civil court is usually instituted. The procedures for trial and appeal including execution of decrees and orders as laid down in the Code of Civil Procedure are followed. Valuation of suits for purposes of jurisdiction is made according to the Suits Valuation Act. The amount of court fees to be paid on plaints and appeals is determined by the Court Fees Act. The Limitation Act prescribes the periods of limitation within which suits can be filed. The Evidence Act regulates the relevancy, admissibility and probative value of evidence led in courts, civil and criminal.

The trial is in the nature of adversary proceedings where two parties oppose each other in a suit or action between parties. The procedure commences with ‘pleadings’, which set out the precise question in dispute or the cause of action. The opposite party (the defendant) may file a written statement to admit or deny the allegations in the plaint. The parties may supplement the pleadings by makings admissions of fact, answers and interrogatories, oral statements before the court and by admissions and denials of documents filed by them. The ‘hearing’ of a suit commences with the serving of a copy of the plaint to the defendant. The trial involves recording of evidence of witnesses for deposing in the court. Because civil proceedings are private matters, they can at any time be abandoned or compromised and, in fact, in a number of cases they are settled before trial. Judgments are enforceable through the authority of the court. Refusal to obey a judgment can lead to penal consequences. Many decrees are open to appeal in higher courts within the specified period.

Criminal proceedings are governed by the provisions of the Code of Civil Procedure, the purpose of which is to determine the accused is guilty of the offence charged and, if so, to decide the punishment to be awarded thereof. It is designed to give every accused a ‘fair trial’ consistent with the constitutional commitment to individual liberty and freedom. Criminal proceedings involve four major stages, namely, investigations, prosecution, trial and disposition. Crimes being wrongs against society, the state undertakes the prosecution on behalf of the victim. Whenever arrests are made they are obliged to produce the arrested person before the nearest Magistrate within 24 hours. They are not to use ‘third degree methods’, in interrogation and confession given to police are not admissible as evidence in court. In all bailable cases they are bound to release the person on bail. The arrest person has a right to seek the aid of a lawyer of his choice and he cannot be compelled to give evidence against himself. Under our law every accused person is presumed innocent and the prosecution (the State) has to prove the guilt beyond a reasonable doubt. If there is any doubt in the evidence of the prosecution, the benefit of doubt is given to the accused and he is acquitted. The defendant (or his lawyer) has the right to cross-examine every prosecution witness while he cannot himself be questioned unless he consents to be sworn as a witness in his own defence. In the case of indigent persons there is proviso for legal aid at State expense. If at the end of trial, the Judge finds him guilty, he has a right to be heard on the determination of sentence. The emphasis is modern criminal justice being reformation and rehabilitation there is enough scope for a deserving convict to get correctional treatment as part of sentence. Apart from the civil and criminal proceedings prescribed in the respective codes, there are a variety of adjudicative procedures followed in tribunals, quasi-judicial administrative agencies, arbitration councils, nyaya panchayats etc., where private disputes are processed and settled through informal procedures. They are found be cheap, expeditious and less cumbersome in terms of adjudication. Legal Aid has now assumed an important place in judicial procedure in our country.

Courts Of Law

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 between union and the State, State and State, State and the citizen and in limited cases appeals arising out of private disputes involving substantial questions of law. This higher judiciary is named as the Union Judiciary and appointments to it are made by the President of the Union on the advice of the Council of Ministers. Citizens can directly approach the High Courts or the Supreme Court to seek redress for the violation of Fundamental Rights. These courts have a supervisory function over the subordinate courts (State Judiciary) which are set up by each State according to its requirements under the Civil Procedure Code, Criminal Procedure Code or other State laws, The High Courts and Supreme Court enjoy civil and criminal jurisdiction apart from the writ jurisdiction.

The State judiciary under the High Court is organized in a hierarchy on the civil and criminal sides based on their jurisdiction, territorial or monetary. On the criminal side, the Criminal procedure Code provides for the magistrates; Courts (First or Second Class depending on the extent of powers for punishment) and above them the Sessions Courts, usually one in each District. On the civil side, the civil Procedure Code provides for the Munsiffs’ Court (with limited pecuniary jurisdiction). The Sub-Divisional Court and the district court each will vary pecuniary and territorial jurisdiction. There can be Special Courts set up for specific purposes and also Administrative and Revenue Tribunals to adjudicate upon specific categories of disputes. Thus there are Motor Vehicles Compensation Tribunals, Sales Tax Tribunals, land Tribunals etc., all of which are judicial bodies adjudicating disputes in the areas assigned to them. Appeals from these courts and tribunals usually lie to the high Courts and, in exceptional cases, a second appeal to the Supreme Court. Administration of justice requires the co-operation not only of the parties and the judges but also of offices of court who include the Advocates, the court staff and the Para-legal personnel who assist the lawyers and judges.


All judicial officers from the Supreme Court Judge to the Munsiff in a small taluka are independent of both the legislature and the executive. They 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. The President, acting on the advice of the Cabinet and the Chief Justice of India, appoints the judges of the Supreme Court and the High Court. The Governor of the State appoints the judicial Officers of the State similarly on the advice of the State High Court/Government. Their salaries and service conditions from service requires a special procedure and the control of their judicial functions vest on the higher judiciary.

Lawyers and the Bar

Lawyers are the key functionaries assisting the judges in the administration of justice. They are officers of court and are constituted into an independent profession under an Act of parliament. (The Advocates Act, 1961). No other person may practice before the courts. Without the expert assistance of lawyers on either side of a dispute, judges will find it difficult to find the truth on disputed fats in issue and interpret the law applicable to varied situations. That is why the legal profession is often referred to as a noble and a learned profession.

To briefly put it, this is how our legal system functions. It is our responsibility to know the legal system because society, individual and various laws are inter-related to each other. It is a vicious circle. A common man should have an idea of what is the system in which we are functioning (though malfunctioning) and on what lines does it functions? Though we might have different opinions, i.e., whether our system is good or bad, is it functioning well or not, is it able to give justice to the poor and the needy or not? Are some basic questions we might have? But the object here is to create awareness among the masses who do not know our legal system at all, so as to get any remedy also. I hope, I am successful to some extent in enlightening the masses.

The content of this article is intended as a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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