LEGAL METHOD AND INTRODUCTION
TO LEGAL SYSTEM
MODULE 5
BASIC CONCEPTS OF INDIAN LEGAL SYSTEM
MR. ARINDAM NERAL
ASSISTANT PROFESSOR OF LAW
INDIAN LEGAL SYSTEM
INTRODUCTION:
•The Indian legal system is mainly adversarial. However, in certain
aspects it is hybrid of adversarial and inquisitorial functions.
• There are three pillars of the Indian Government, namely
Legislature, Judiciary, and Executive.
• Hierarchy of Courts: Supreme Court or Apex Court The Constitution
of India has established different courts at a different level to meet
the needs of justice of the citizens. It places the Supreme Court at
top of the ladder, followed by the high court and district court
respectively.
• The Constitution of India is considered as the Law of the Land.
SEPERATION OF POWERS
ORIGIN:
• The separation of powers, also known as ’trias politica’, was first
developed in ancient Greece and was widely used by the Roman
Republic. The concept was the result of centuries of political and
philosophical development. This model divides the state into
branches or estates with independent powers and responsibilities.
The usual consists of division into an executive, a legislature, and a
judiciary.
• Aristotle was the first person to write about separation of powers.
In his book entitled Politics, he has described three agencies of
government three agencies of government – the General Assembly,
the Public Officials, and the Judiciary.
• The roots of separation of power are also found in Vedas. Narad
MEANING OF SEPARATION OF POWERS:
• The basic premise behind the doctrine of separation of powers is that
when power gets concentrated in a single person or a group of
persons, they can be dangerous to the citizens.
• Hence, the principle of separation of powers aims at removing the
concentrated power and preventing abuse.
• Generally, all the powers of the government can be categorized into
three classes:
i. Enactment of making laws;
ii. Interpretation of that enacted laws;
iii. Enforcement of the enacted laws.
These are simply put as Legislative, Executive and Judicial powers of
the government.
• According to Wade and Philips, the concept of Separation of power
means three different things:
i. Same person should not form part of more than one of the three
organs of the government.
ii. One organ of the government should not control or interfere with
the exercise of its functions by another organ.
iii. One organ of the government should not exercise the functions of
another.
ORGANS OF THE GOVERNMENT:
1. Legislature: The chief function of the legislature is to enact
laws.
i. It is the basis for the functioning of the other two organs, the
executive and the judiciary.
ii. It is also sometimes accorded the first place among the
three organs because until and unless laws are enacted,
there can be no implementation and application of laws.
2. Executive: The executive is the organ that implements the laws
enacted by the legislature and enforces the will of the state.
iii. It is the administrative head of the government.
iv. Ministers including the Prime/Chief Ministers and
President/Governors form part of the executive.
3. Judiciary: The judiciary is that branch of the government that
interprets the law, settles disputes and administers justice to all
citizens.
i. The judiciary is considered the watchdog of democracy, and
also the guardian of the Constitution.
ii. It comprises of the Supreme Court, the High Courts, District
and other subordinate courts.
ADVANTAGES OF SEPARATION OF POWERS:
There are various advantages with the acceptance of this doctrine in
the system:
1. The efficiency of the organs of state increased due to separation
of work hence time consumption decreases.
2. Since the experts will handle the matters of their parts so the
degree of purity and correctness increases.
3. There is the division of work and hence division of skill and labour
occurs.
4. Due to division of work there is no overlapping remains in the
system and hence nobody interfere with others working area.
5. Since the overlapping removed then there is no possibility of the
competition in between different organs.
CONSTITUTIONAL PROVISIONS ON SEPARATION OF POWERS:
Although the Constitution of India does not specifically provide for
Separation of Powers but it forms part of the basic structure of the
Constitution.
Article 50: It provides for Separation of Judiciary from the executive.
Articles 121 and 211: These provide that the legislatures cannot
discuss the conduct of a judge of the Supreme Court or High Court but
they can in cases of impeachment.
Articles 122 and 212 restrict the courts from questioning the validity of
proceedings in the Parliament and the Legislatures.
Article 123: The President, the executive head of the country, is
empowered to exercise legislative powers (Promulgate ordinances) under
this Article.
INDIAN CASE LAWS ON SEPERATION OF POWERS:
• The Supreme Court in Ram Jawaya Kapur v. State of Punjab,
held: “Indian Constitution has not indeed recognized the doctrine of
separation of powers in its absolute rigidity but the functions of the
different parts or branches of the government have been sufficiently
differentiated and consequently it can be very well said that our
Constitution does not contemplate assumption by one organ or part
of the State of functions that essentially belong to another.”
• Later in Golak Nath v State of Punjab, its was held that -
“The constitution brings into existence different constitutional
entitles, namely the union, the state and the union territories. It
creates three major instruments of power, namely the Legislature,
the Executive and the Judiciary. It demarcates their jurisdiction
minutely and expects them to exercise their respective powers
without overstepping there limits. They should function with the
spheres allotted to them”
• Then came one of the most landmark judgments delivered by the
Supreme Court in Kesavananda Bharti v State of Kerala the court
was of the view that amending power was now subject to the basic
features of the constitution. Mirza Beg, J. added that separation of
powers is a part of the basic structure of the constitution.
• Also in I.R. Coelho vs. State of Tamil Nadu, S.C. took the opinion
opined by the Supreme court in Kesavananda Bharati case
pertaining to the doctrine of basic structure.
• From the above few case laws right from Ram Jawaya v state of
Punjab in 1955 to I.R. Coelho v. State of Tamil Nadu in 2007
there has been a wide change of opinion as in the beginning the court
was of the opinion that as such there is no Doctrine of Separation of
Power in the constitution of India but then as the passage of time the
opinion of the Supreme Court has also changed and now it does
include the above said Doctrine as the basic feature of the
CHECKS AND BALANCES
• There is a system of checks and balances wherein the various
organs impose checks on one another by certain provisions.
• Checks and balances ensure that no one organ becomes all-too
powerful. The strict separation of powers that was envisaged in the
classical sense is not practical.
• Hence, the doctrine can be better appreciated as a doctrine of
checks and balances.
• In the case of Indira Gandhi Nehru v. Raj Narain, Justice
Chandrachud stated that “No Constitution can survive without a
conscious adherence to its fine checks and balances.”
The following checks and balances are there in the Indian legal
system:
• The judiciary is independent but the judges are appointed by the
executive (Article 124(2) & Article 217(1)).
• Article 124 and 218 of the Constitution of India lays down the
procedure for impeachment of judges of the Supreme Court and High
Court. In case of misconduct of judges, they can be removed by
parliament by a special majority in both the houses after
investigation by a committee.
• Article 72 and 161 provides the President and the Governors to
enjoy certain judicial functions like the power to pardon, reprieve,
etc.
• The judiciary has the power of judicial review over the actions of the
executive and the legislature wherein the judiciary can strike down
• Article 75 and 164 provides that the Prime Minister shall be
appointed by the President. Also, The Council of Ministers shall be
collectively responsible to the House of the People. In a
parliamentary form of government, the executive is not separated
from the legislature in that the members of the council of ministers
are members of the legislature.
• Article 61 provides for the Impeachment of President wherein the
president can be impeached for violation of the Constitution, the
charge shall be preferred by either House of Parliament
RULE OF LAW
• The term “Rule of Law” is derived from the French phrase ‘La Principe
de Legalite’ which literally means ‘the principle of legality’ and which
refers to a government based on principles of law and justice as
opposed to the arbitrariness of a ruler.
• So, the state is governed not by the ruler or the nominated
representatives of the people but by the law.
• According to Black’s law dictionary, Rule of Law may be specifically
defined as supremacy of law where decision is made by applying
known principles or laws, where there is no intervention of discretion in
application of such principles or laws.
• Rule of law is a concept or norm that supports the equality of all
citizens before the law, secures a non arbitrary form of government,
and more generally prevents the arbitrary use of power.
OBJECTIVES OF THE DOCTRINE OF RULE OF LAW:
• The doctrine of rule of law has been described as supremacy of the
law. This means that where there is rule of law no person can be
said to be above the law, even the functions and actions of the
executive organ of the state shall be within the ambit of the law.
• The aim of rule of law like other constitutional principles is the
uplifting of freedom and fundamental rights of the people. The rule
of law has propounded to make sure that the executive doesn’t use
law of the land or country to oppress or curtail freedom of
individuals as they are found in the bill of rights.
• Rule of law imposes a duty on all citizens in a parliamentary
democracy to obey the law and for such obedience the law itself
must be just law and not arbitrary or oppressive law.
ORIGIN OF RULE OF LAW:
• Plato is credited with positing the idea that the government should be
subservient to the law (360 B.C.). The idea was further refined by
Aristotle in his work “The Politics” (350 B.C.) where he talked about why
governments should abide by law to prevent arbitrary rule or abuse of
power.
• In England, the principle that the King was bound by law was a
prominent feature of the Magna Carta signed by King John in 1215.
• However, they did not use the term “Rule of Law” and therefore the
credit of originating the concept of Rule of Law has been bestowed upon
Sir Edward Coke who said that ‘King is under God and the Law’.
• In the modern sense, the most famous exposition of the concept of rule
of law was given by Prof. Albert Venn Dicey in his book ‘Introduction to
the Study of the Law of the Constitution’ in respect to the powers which
the government must exercise in accordance to the law.
A.V. DICEY’S RULE OF LAW:
According to Dicey’s theory, Rule of Law has three pillars these are:
i. The Supremacy of Law– It means that the law rules over all
people including the persons administering the law. Dicey believed
that Rule of Law stands for absolute supremacy of law. No person,
irrespective of his position whether he is a common man or
government authority is bound to obey the law.
Dicey asserted that discretion has no place where there is supremacy
of law. According to him discretion is a link to arbitrariness.
So, there must be absence of wide discretionary powers on the rulers
so that they cannot make their own laws but must be governed
according to the established laws.
ii. Equality before Law – It means the equal subjection of all class of
people to the law of the land administered by the ordinary courts. No
man is above the law and would be treated equally in the eyes of law
irrespective of their pedestal in life.
In other words, every man irrespective of his rank or position is subject
to the ordinary law and jurisdiction of the ordinary court and not to
any special court. According to him special law and special courts is a
threat to the principles of equality.
Dicey also criticized the French legal system of Droit Administratif as
there were separate tribunals for deciding the cases of state officials
and citizens separately.
iii. The Predominance of Legal Spirit – The phrase legal spirit
refers to the spirit of justice. This concept advocates the principle
that law should be according to justice and not vice-versa.
According to Dicey, for the prevalence of the rule of law there should
be an enforcing authority and that authority he found in the courts.
He believed that the courts are the enforcer of the rule of law and
hence it should be free from impartiality and external influence.
Independence of the judiciary is therefore an important pillar for the
existence of rule of law. He asserted that the courts of law and not
the written constitution are the ultimate protector of an individual’s
fundamentals.
INDIAN CONTEXT:
• The term ‘Rule of Law’ is nowhere defined in the Indian Constitution
but this term is often used by the Indian judiciary in their judgments.
• In India, all public authorities are made subject to jurisdiction of
ordinary law courts and to the same sets of laws.
• The Indian constitution is the law of the land and prevails over
Judiciary, the Legislature and the Executive.
• These three organs of the state have to act according to the
principles engraved in the constitution.
• The Rule of Law as administered in India is interpreted to be
embodied within several provisions of the Constitution.
• The Preamble to our constitution incorporates the word justice, liberty
and equality which are a clear indicator of a just and fair system
without any existent disparity between the masses irrespective of their
stature in life.
• Article 13(1) states that any law that is made by the legislature has
to be made in conformity with the Constitution failing which it will be
declared invalid. Thus every law that is created has to be in line with
the constitutional provisions.
• The equality before the law as enumerated by Dicey is incorporated
in Article 14 of the Constitution of India which lays down the principle
of equality before law and equal protection of laws.
• The right to life and personal liberty which is the basic human right is
also guaranteed to every person by the constitution under Article 21.
INDIAN CASE LAWS ON RULE OF LAW:
• In the case of Maneka Gandhi v. Union of India the Supreme
court in clear words observed that Article 14 strikes at arbitrariness in
state actions and ensures fairness and equality in treatment. Rule of
law which is the basic feature of the Indian Constitution excludes
arbitrariness.
• In Keshavananda Bharti v. State of Kerala, the Supreme Court
has included the Rule of Law as the basic feature of the Constitution.
In this case, though the Supreme Court upheld the amending power
of the Parliament which extends to every Article provided under the
Constitution but has limited that power by providing that such power
cannot be used in amending the basic feature of the Constitution.
• In E.P Royappa v. State of Tamil Nadu & Another The Supreme
Court held that for the state to justify its action of curtailment of
fundamental right it can only be curtailed on the grounds of
reasonableness which should be satisfied on the basis of Article 14,
19 and 21, the golden triangle of the Constitution,
• In Yusuf Khan v. Manohar Joshi, The SC laid down that the
constitution places a duty over the state to maintain and preserve
law and order and to see that no act violence overpasses the
mandate provided by the rule of law.
• In A.K. Kraipak V. Union of India the Apex Court held that ours
being a welfare State, it is regulated and controlled by the Rule of
Law. The rule of law is applicable to the entire field of the
administration as every organ of the state is regulated by the rule of
law.
JUDICIAL ACTIVISM
• The term “Judicial Activism” was first coined in 1947 by Arthur
Schlesinger Jr., an American historian and educator.
• In the year 1610, the power of Judicial Review was acknowledged
for the first time in Britain through the activism of Justice Coke. The
then Chief Justice Coke stated that if a law made by Parliament
breached the principles of common law; and reason, then it could
be reviewed and adjudicated as void by the judiciary.
• The judiciary plays an important role in upholding and promoting
the rights of citizens in a country.
• According to Black's Law Dictionary judicial activism is a philosophy
of judicial decision-making whereby judges allow their personal views
about public policy, among other factors, to guide their decisions.
• In India, Judiciary acts as the watchdog of the constitution and
keeps a check on the functioning of the legislature and the executive.
It has the power to review and correct the wrong or abusive
interpretations of law.
• So, the active role of the judiciary in upholding the rights of citizens
and preserving the constitutional and legal system of the country is
known as judicial activism.
• The Indian system is one of checks and balances which basically
means that a constitutional wrong of Parliament can be overturned by
the Superior Courts- this is basically to curb the menace of abuse of
power and preventing institutional domination.
• This act of checks and balances of the powers and functions of
Legislature and Executive by the Judiciary is essentially the concept of
judicial activism.
WAYS FOR JUDICIAL ACTIVISM IN INDIA:
There are major ways by which judicial activism is followed in India.
They are:
1. Judicial review - It is the power exerted by the courts of a
country to examine the actions of the legislatures, executive and
administrative arms of government and to ensure that such actions
conform to the provisions of the nation’s Constitution.;
2. Public Interest Litigation - Public interest Litigation (PIL) means
litigation filed in a court of law, for the protection of “Public
Interest”, such as Pollution, Terrorism, Road safety, Constructional
hazards etc. Any matter where the interest of public at large is
affected can be redressed by filing a Public Interest Litigation in a
court of law. It helps advance the cause of minority or
disadvantaged groups or individuals.
JUDICIAL REVIEW:
• It is a type of court proceeding in which a judge reviews the
lawfulness of a decision or action made by a public body.
• Judicial review has two important functions, they are:
i. legitimizing government action and;
ii. the protection of constitution against any undue encroachment by
the government.
• There are provisions in the constitution itself for the judiciary to adopt
a proactive role. Article 13 read with Articles 32 and 226 of the
Constitution provides the power of judicial review to the higher
judiciary to declare any executive, legislative or administrative action
void if it is in contravention with the Constitution.
• In the case of Indira Gandhi v. Raj Narain (1975), SC held that Judicial
review is considered as the basic structure of the constitution.
Article 32 and 226 empowers the Supreme Court and the High
Courts respectively, with the power to initiate an action in case of
violation of rights and liberties of the citizen.
Article 32
Referred to as the ‘heart and soul of the constitution’ by Dr Bhim
Rao Ambedkar, Article 32 is a fundamental right envisaged under
Part III of the Constitution of India. It is a ‘right to constitutional
remedies’ which provides a right to protect other fundamental rights
from violation.
Article 226
Enshrined under Part V of the Constitution of India, Article 226
confers power to the High Courts to issue orders, directions, and
writs in the nature of Habeas corpus, Mandamus, Certiorari,
Prohibition, and Quo Warranto.
WRITS UNDER THE CONSTITUTION OF INDIA:
Articles 32 and 226 specifically provide for five kinds of writs. These
writs are issued in different circumstances and have different
implications.
1. Habeas Corpus
‘Habeas Corpus’ literally means “to have a body of”. This writ is used to
release a person who has been unlawfully detained or imprisoned. By
virtue of this writ, the Court directs the person so detained to be
brought before it to examine the legality of his detention. If the Court
concludes that the detention was unlawful, then it directs the person to
be released immediately.
2. Mandamus
‘Mandamus’ means ‘we command’. It is issued by the Court to direct a
public authority to perform the legal duties which it has not or refused
to perform. It can be issued by the Court against a public official, public
corporation, tribunal, inferior court or the government. It cannot be
3. Quo Warranto
‘Quo Warranto’ means ‘by what warrant’. Through this writ, the Court
calls upon a person holding a public office to show under what
authority he holds that office. If it is found that the person is not
entitled to hold that office, he may be ousted from it. Its objective is
to prevent a person from holding an office he is not entitled to,
therefore preventing usurpation of any public office.
4. Certiorari
‘Certiorari’ means to ‘certify’. Certiorari is a curative writ. When the
Court is of the opinion that a lower court or a tribunal has passed an
order which is beyond its powers or committed an error of law then,
through the writ of certiorari, it may transfer the case to itself or
quash the order passed by the lower court or tribunal. A writ of
certiorari is issued by the Supreme Court or High Court to the
subordinate courts or tribunal.
5. Prohibition
The literal meaning of ‘Prohibition’ is ‘To forbid’. A court that is
higher in position issues a Prohibition writ against a court that is
lower in position to prevent the latter from exceeding its jurisdiction
or usurping a jurisdiction that it does not possess. It directs
inactivity.
PUBLIC INTEREST LITIGATION:
•Public interest litigation is not defined in any statute or in any act. It
has been interpreted by judges to consider the intent of public at
large. Public interest litigation is the power given to the public by
courts through judicial activism.
• Public Interest Litigation (PIL), with the dilution of the principle of
Locus Standi, have allowed the judiciary to intervene in many public
issues, even when there is no complaint from the aggrieved party.
• However, the person filing the petition must prove to the satisfaction
of the court that the petition is being filed for a public interest and not
just as a frivolous litigation.
• The court can itself take cognizance of the matter and proceed suo
motu or cases can commence on the petition of any public spirited
individual.
• Justice Krishna Iyer in the case of Mumbai Kamagar Sabha vs. Abdul
Thai (1976) initially gave the concept of public interest litigation in
India.
• The first reported case of PIL was Hussainara Khatoon vs. State of
Bihar (1979) that focused on the inhuman conditions of prisons and
under trial prisoners that led to the release of more than 40,000 under
trial prisoners.
• Justice P.N. Bhagawati in the case of S.P. Gupta vs. Union of India
started a new era of PIL movement. In this case it was held that “any
member of the public or social action group acting bonafide” can invoke
the Writ Jurisdiction of the High Courts (under article 226) or the
Supreme Court (under Article 32) seeking redressal against violation of
legal or constitutional rights of persons who due to social or economic or
any other disability cannot approach the Court.
• In M.C. Mehtha Vs Union of India (U.O.I) in this case the
supreme court ordered for closure of tanneries near Kanpur which
were polluting river Ganga.
• In the case of Vishaka v. State of Rajasthan, the judgment
recognized sexual harassment as a violation of the fundamental
constitutional rights of Article 14, Article 15 and Article 21. The
guidelines also directed for the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.
• In Bandhua Mukti Morcha Vs Union of India, the supreme court
said Article 21 assures the Right to Live with Human dignity, includes
free from exploitation.