Common Law system and Institutions in India
Role
|
Name
|
Affiliation
|
Principal Investigator
|
Dr.Gyanendra Kumar sahu
|
Asst.Professor Utkal University
|
Content Reviewer
|
Dr.Gyanendra Kumar sahu
|
Asst.Professor Utkal University
|
Description of Module
Items
|
Description of Module
|
Subject Name
|
Law
|
Paper Name
|
Law and social transformation in India
|
Module Name /Title
|
Common Law system and Institutions in India
|
Module No.
|
IV
|
Common Law system in India:
The term common Law can
refer to two things. The common law is the body of law formed
through court decisions, as opposed to law formed through statutes or written legislation. A common law system is the system of jurisprudence that is based on the doctrine of judicial
precedent, the principle under which the lower courts must follow the
decisions of the higher courts, rather than on statutory laws. The Common law refers to law and
the corresponding legal system developed through decisions of courts and
similar tribunals, rather than through legislative statutes or executive
action. The common law is created and refined by judges; a decision in the case
currently pending depends on the decisions in previous cases and affects the
law to be applied in future cases. When there is no authoritative statement of
the law judges have the authority and duty to make law by creating precedent.
The body of precedent is called common law and it binds future decisions. If a
similar disputes has been resolved in the past the court is bound to follow the
reasoning used in the prior decision. If however the court finds that the
current dispute is fundamentally distinct from all previous cases, it will decide
as a matter of first inspiration. Thereafter the new decision become precedent,
and will bind future courts.
The common law legal system originated in England, was later adopted in
the United States and Canada and is in place in most Commonwealth countries. While the English common
law system has its roots in the 11th century, the present system has evolved
over the past 350 years, with judges basing their decisions.
Common law has no basis in statute, and is established and developed
through written opinions of
judges delivered at
the end of a trial. These opinions are binding on future decisions of lower courts in
the same jurisdiction. However, that is not to say that common law systems derive all of their laws from case law.
Democratic countries that have adopted the
common law system have legislative bodies at the centre of their democracies,
and these bodies regularly pass new legislation. This legislation is then interpreted and applied by
the judiciary during
trials. Large bodies of law, for example those relating to property, contracts
and torts, are traditionally part of the common law.
More modern areas of law such as employment law, intellectual property law and
health and safety tend to be based on statute rather than on common law.
As with any system, the common law system has its advantages and
disadvantages. The three main arguments in favour of such a system is that it
is fair, useful and
efficient. It is seen as being fair as the strict following of precedents in
all cases means that all people are treated equally. Finally, the existence of
precedents means that the judicial process can be relatively fast as there is
already a framework in place in which to base a ruling.
The disadvantages include the
bad rulings and the difficulties raised when there is no precedent for the case
before the court. Once a bad decision has been made by a higher court, that
decision will remain law until the same court, or a higher court, overrules the
bad decision. so bad decisions can be upheld for a long time. That is true of
bad precedents. However, a total lack of precedent can lead to many problems,
especially where a court essentially has to make new law where no previous law
existed.
The development of Judicial
Institution
The legal system adopted by India is undoubtedly based on the
English legal system. The development of Indian judicial Institutions created
during British India but found its roots in Hindu period and also has been
developed during the Mughal period but on the other hand it is true that
systematic constitution of judicial institutions have given shape during the
British India. Some of the important development of judicial institutions.
1.Development of
Judicial Institutions before English Laws:
The origin of Judicial institutions found its roots from the
very beginning of society. During Hindu period, the society was divided into
four varnas further varnas were divided into caste and than sub-castes. In the
beginning of the society the wrongdoers were punished by family head and with the
development of higher issue cases were decided by the head of the
caste/villages.Each caste panchayat were regarded as a supreme authority for
the particular caste in each village.
(i)
Ancient India (Hindu
Period):
In ancient India, the
king was regarded as the fountainhead of the justice. His formost duty was to
protect his subjects. He was respected as a Lord of Dharma and was entrusted
with the supreme authority of the administration of justice in his kingdom.The
kings court was the highest court of appeal as well as an original court in
cases of vital importance to the state. In the King’s court the king was
advised by learned Brahmin,the chief justice and other
judges,ministers,elders,and representatives of the trading community. Next to
the king was the court of justice. A part from the chief justice, the court
consists of board of judges to assist him. All the judges from three upper
caste preferably Brahmins.
(ii)
Muslim or Mughal
Period:
During
Mughal period the sultan (King), being head of the state, was the supreme
authority to administer justice in his kingdom.The administration of justice
was one of the important functions in his Sultan, which was actually done in
his name in three capacities, Diwan-e-quaza(arbitrator), Diwan-e-Mazalim(as
head of Bureaucracy) and Diwan-e-Siyasat (as commander in chief of force).The
judicial system under the sultan was organized on the basis of administrative
division of the kingdom.The systematic classification and gradation of the
courts exists at the seat of the capital(Central),Provinces(State),Districts,Parganas(Tahaseels
or Talukas) and villages.
Development of
Judicial Institutions during British India:
English
people came to India in 1601 as a “body of training merchants” on 31st
December, 1600 Queen Elizabeth granted charter to the company which
incorporated the London East India company to trade into and from the East
Indies.The same charter further granted legislative power to the company to
make bye-laws,ordiance, etc for the good government of the company and its
servants and to punish offences against them by fine or imprisonment according
to laws, statutes and customs.
(i)
Company was empower to
trial its servants in India:
a) Disputes
amongst the company’s servants will be regulated by their own tribunals.
b) English
people will enjoy their own religion and laws in the administration of the
company.
c) Mughal
Governor or Quazi of the relevant place will protect the English people from
all sorts of oppression and injury.
1. Common law Legal System: The
British rule in India brought about the introduction
and development of the common law legal system, on which India has based its present judicial framework.
In the early seventeenth century, the Crown, introduced a judicial system
functioning under its authority in the three
“presidency” towns (Bombay, Madras and Calcutta), i.e. the largest and most
important towns under British rule.
2. Governor and Council:
These judicial systems were function independently
by the Governor and the Council of those towns, and had authority to decide
both civil and criminal matters.
3.
Authority: The courts did not derive
their authority directly from the Crown, but from the East India Company. This
system was making unsystematic.
4.Mayors Court:
In the eighteenth century, a more uniform
pattern introduced. All “presidency” towns now had a uniform judicial
system (called a Mayor’s Court). Soon thereafter, the courts derived their
authority directly from the Crown.
5.Privy Council:
A system of appeals to the Privy
Council was initiated, and this marked a historic landmark in the development
of the Indian Judicial system, because the Privy Council functioned as the last court of appeal in India for more
than 200 years.
6.Supreme Court
: However, the courts functioned under
the English law, without any regard for local laws, which raised questions
regarding their effectiveness. In the late eighteenth century, the Mayor’s
Court was replaced with a Supreme Court (in presidency towns).
7. Independent Judicial Organ:
This was the first attempt to create a separate and independent judicial organ
in India, under the direct authority of
the King. The Chief Justice and Judges were appointed by the King. This
court had jurisdiction over civil, criminal. and formulate rules of practice
and procedure.
8.British subject:
Appeals from this court lay to the Privy Council. In the beginning, the
territorial jurisdiction of the court extended only to British subjects (all
those in employment of the East India
Company and those entering into a contract).
9.Adalat System :
Local civil and criminal justice was
left in the hands of the locals, functioning under a system known as the
“adalat system”.
10.High Court: By
the mid nineteenth century, The adalat system and Supreme Court were abolished,
a High Court was established in each presidency town, and Appeals from them
went to the Privy Council. Thus, this created a uniform judicial system in
India, which, in substance, has largely continued till today.
11. Federal Court:
The precedence of the present
Supreme Court of India was the Federal Court (established in 1937), which heard
appeals from the High Courts, and whose decisions were appealable to the Privy Council. The current Supreme Court of India
enjoys the combined jurisdiction of the Privy Council and the Federal Court,
which are no longer in existence.
Development
of Personal Laws India
1. Non-interference with custom and
personal laws: with different religions, and each
religious community has its own personal laws that govern marriage, adoption,
succession and the like. The British maintained a policy of non-interference
with custom and personal laws, and so it was decided that Hindus were to be governed by Hindu Law and Muslims, by
Muslim laws.
2. Influenced by Customs and
Communities: The British administration attempted to give a framework to these laws by
enacting specific legislations governing various religions. Few examples are
the Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936,
Dissolution of Muslim Marriage Act, 1939, Hindu Marriage Act, 1955 and the
like. The term ‘Hindu’ has been viewed flexibly to include Sikhs, Jains and
Buddhists. The development of personal laws is largely influenced by customs
and manners of communities.
Development of the Civil and
Criminal Legal System:
Codified:
Development of the Civil and Criminal Legal System Much of the common law introduced in India has been
codified. The basic statutes governing civil and criminal justice are the
Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal
Procedure, 1973 and the Code of Civil Procedure, 1908.
Lord Macaulay: The
Indian Penal Code, 1860 was drafted by the First Law Commission, established in 1835, of which Lord
Macaulay was the Chairman. This classic piece of legislation was reproduced in
most other British colonies and even today, forms part of the laws of countries
like Malaysia, Singapore and Sri Lanka.
These legislations have undergone several amendments, which address the
changing needs of society. This code is the basic governing statute for
determining criminal liability for
offences.
The
Indian Evidence Act of 1872: Based on the work of Sir James Stephen, was a
historical measure that consolidated the rules of evidence which were up till
now based on the traditional legal
systems of a social groups existing in India. They also varied, at times.
The Code of Criminal Procedure:
The procedure that is to be followed by the prosecuting an accused. The present
code dates to 1973, but was first enacted into law in 1861, after the second Law Commission presented the draft of
the code 1973.
The
Code of Civil Procedure, 1908: was first codified in 1859, for legal and administrative
reforms. Subsequently, the re-enacted code of 1908 was adopted and has
again been amended in 1976. The Codes apply uniformly throughout the nation.
Functioning of the
Supreme Court, High Courts and Subordinate Courts
Primary
Court of Appeal: The Supreme Court is primarily a court
of appeal and has wide appellate jurisdiction. Its primary function is to interpret the Constitution and declare
whether any legislation or administrative action is constitutional or unconstitutional.
The Supreme Court is the final authority in all constitutional controversies.
Contempt:
The law declared by the Supreme Court is binding on all courts in India, and is
the law of the land. The Court is a court of record and can also punish for its
contempt.
High
Court certifies: Any judgment of the High Court can be brought before it,
if the High Court certifies that the matter of large question of interpretation
of law or the Constitution. Appeal to the Supreme Court is not a matter of
right.
Special
Leave : In cases where a High Court does not issue certificate
of appeal, and there exists an important legal question, alternative to “Special Leave” may be made, as per the
Constitution of India. This provision (Article 136 of the Constitution) enables
the Supreme Court to grant special leave to appeal from any judgment, decree,
sentence or order in any cause or matter passed or made by any court or
tribunal in India. This power is extremely wide and enables the Supreme Court
to act as a check against improper
exercise of jurisdiction by judicial or quasi judicial bodies as well as
maintain a uniformity of legal approach.
Transfer
of any case: In certain special circumstances, the
Supreme Court can also transfer to itself any case from any of the High Courts.
This usually takes place when cases are pending before the Supreme Court and
High Court, or before two or more High Courts, involving same or similar
questions of law and the Supreme Court is satisfied either suo motu or on an application made by the attorney general or any
party to any case that such questions are of general importance.
Advisory
jurisdiction: The Supreme Court also enjoys advisory
jurisdiction, by which the President of
India may refer any question of law or a question of public importance to
the Court for its opinion. The court also has the power to review its own decisions.
High
Court:
Contempt:
The High Courts are courts of record and as such can punish for their contempt.
The High Courts were meant to play essential role in the administration of
justice not only in deciding civil and criminal matters but also by way of protecting fundamental rights
guaranteed under the Constitution (for which High Courts are also conferred
with Writ jurisdiction.).
Subordinate
courts: Therefore, a high degree of judicial independence
was given to the High Courts. They enjoy original as well as appellate
jurisdiction. They also exercise supervisory jurisdiction over subordinate
courts.
They are vested with the
power to hear references for the confirmation of death sentences also be
consulted in the matter of exercise of the prerogative of mercy by the
President or Governor. Revisional powers are also granted to the High Courts.
The High Courts have
jurisdiction and superintendence over all courts and tribunals within its
territorial jurisdiction. The power of High Courts extends also to the other
judicial or quasi judicial bodies within its territorial limits, in judicial
and administrative matters.
The Subordinate Courts in
each State function under the authority of the High Court and have fixed
pecuniary, territorial and sentencing limits. There exists a hierarchical
structure in the lower judiciary and these limits are fixed accordingly, in
ascending order.
Comments
Post a Comment