Module 3: Introductuion and Basic Information about
Legal System:
Sources of law and court structure
The constitution is the source of law in India and also the supreme law of India. Judicial System
of India consists of Supreme Court, High Court, District Court or Subordinate Court. Supreme
Court of India Under the constitution of India, the Supreme Court is the final court of appeal.
The judicial system or Indian legal system is a unique feature of the Indian Constitution. It is an
integrated system of courts that administer both state and union laws. The Supreme Court of India
is the uppermost part in the Indian legal system. Under this, each state or a group of states
possesses High Courts. There are several subordinate courts under these High Courts.
Acts of parliament are of primary legislation:
Procedure of making Acts by Parlament:
Following these procedure the Bill becomes an act which is considered as primary law in our
country. This is accepted by every state and UTs and binding on all. Whosoever disobeys the
law or violates it, he or she will be punished by the Judiciary. That is why acts of Parliament are
of primary legislations.
COMMON LAW OR CASE LAW
The Court Structure and System of India
District courts of India
The District Courts of India are the district courts of the State governments in India for every
district or for one or more districts together taking into account of the number of cases, population
distribution in the district. They administer justice in India at a district level.
The Civil Court District Court is judged by District and Sessions [Link] is the principal court
of original civil jurisdiction besides the High Court of the State and which derives its jurisdiction
in civil matters primarily from the code of civil procedure. The district court is also a court of
sessions when it exercises its jurisdiction on criminal matters under the Code of Criminal
procedure. The district court is presided over by a district judge appointed by the state governor
with on the advice of chief justice of that high court. In addition to the district judge there may be
a number of additional district judges and assistant district judges depending on the workload. The
additional district judge and the court presided have equivalent jurisdiction as the district judge
and his district court.[1]
District consumer forum
Consumer Disputes Redressal Forum to be known as the "District Forum" established by the
State Government in each district. This consumer court deals with complaints wherethe value of
the goods or services and compensation, if any, claim less than twenty lakhs. The Consumer
Protection Act, 1986 is one of the benevolent social legislation intended to protect the large body
of consumers from exploitation. It has become the vehicle for enabling people to secure speedy
and in-expensive Redressal of their grievances. To provide cheap, speedy and simple
redressal to consumer disputes, quasi-judicial machinery is set up at each District, State and
National levels called District Forums, State Consumer Disputes Redressal Commission and
National Consumer Disputes Redressal Commission respectively.
Tribunals
Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving
administrative or tax-related disputes. It performs a number of functions like adjudicating
disputes, determining rights between contesting parties, making an administrative decision,
reviewing an existing administrative decision and so forth.
▪ The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the
Classical Roman Republic’.
o Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the monarchy
and the republic with the function of protecting the citizen from arbitrary action by the
aristocrat magistrates.
▪ A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on,
or to determine claims or disputes – whether or not it is called a tribunal in its title.
There are tribunals for settling various administrative and tax-related disputes, including Central
Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), Customs, Excise and
Service Tax Appellate Tribunal (CESTAT), National Green Tribunal (NGT) among others.
What is Arbitration law?
Arbitration is the dispute settlement process between two agreeable parties to appoint an arbitrator
to give a binding solution on the dispute. It is a way to settle disputes outside the courts thereby
saving time and resources at the same time.
Arbitration is a legal mechanism encouraging settlement of disputes between two or more parties
mutually by the appointment of a third party whose decision is binding on the parties referring
the said dispute.
In spite of the need for arbitration, there are some disadvantages where arbitration cannot be used
as an effective mode of settlement, as:
1. Arbitration lacks in granting authoritative remedies such as permanent injunction and
specific performance order.
2. In certain cases, the arbitrators do not have jurisdiction and are excluded to try the case.
3. The cost can be a major factor as, if the arbitration proceeding is delayed, the cost keeps
on increasing and especially, in the cases where three arbitrators are appointed by the
parties.
4. No appeal can be made for an arbitration order granted by the arbitrator.
5. Lack of cross-examination as the process relies on evidence and not on witnesses.
Arbitration agreement
Defined under Section 2(b) read with Section 7 of the Act.
It can be defined as a written statement or exchange of communication between the parties or any
statement made through means of telecommunication. It is not compulsory for the parties to sign
or unsign it. Even if an arbitration clause is present in the agreement it would be considered as an
arbitration agreement.
Contract Law
Law of contracts in India defines Contract as an agreement enforceable by law
which offers personal rights, and imposes personal obligations, which the law
protects and enforces against the parties to the agreement. The general law of
contract is based on the conception, which the parties have, by an agreement,
created legal rights and obligations, which are purely personal in their nature and
are only enforceable by action against the party in default.
Section 2(h) of the Indian Contract Act, 1872[2] defines a contract as "An
agreement enforceableby law". The word 'agreement' has been defined in Section
2(e) of the Act as ‘every promise and every set of promises, forming
consideration for each other’
Law of Torts in India
The term tort is the French equivalent of the English word “wrong” and of the
Roman law term “delict”. The word tort is derived from the Latin word “tortum”
which means twisted or crooked or wrong. Everyone is expected to behave in a
straightforward manner and when one deviates from this straight path into
crooked ways he has committed a tort. Hence tort is a conduct which is twisted
or crooked and not straight. The person who commits the act is called a tortfeasor.
“Torts” are “civil wrongs” that the injured party can seek legal redressal for.
Usually, the injured party in a tort action is entitled to claim un-liquidated
damages (i.e. compensation that has not been previously determined/specified or
agreed between the parties) and will be decided in a court of law by the judge
based on the facts, circumstances and the injury suffered by the party who
approaches the court.
The law of torts in India is a body of law that addresses and provides remedies
for non-contractual acts of civil wrongdoings. A person suffering legal damage
may be able to use tort law to receive compensation for those injuries from
someone who is legally responsible or liable. The law of Torts in India is a
relatively new common law development supplemented by codifying statutes
including statutes governing damages. While India generally follows the UK
approach, there are certain differences which may indicate judicial activism,
hence creating controversy.