Contracts Final Draft

BASICS OF LEGISLATION
DR. RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY
Project
On
Comparative Analysis of Legal Systems:

India, U.S. and U.K.
SUBMITTED TO SUBMITTED BY
Dr. Shashank Shekhar Prapti Sachan
Asst. Professor (Law) Roll no. 170101099
1st Year (1st Semester)
2017-2018
1
Declaration
I, Prapti Sachan, hereby declare that the project titled ―Comparative Analysis of Legal
Systems: India, U.S. and U.K.‖ made under the guidance of Mr. Shashank Shekhar, is
an original work. This project has been submitted as the end-term project for the
subject of Basics of Legislation for the first semester of B.A. LL.B (Hons) course. All
the information and data that has been analysed and used from various sources has
been duly cited and accredited.
Date: 14-10-2017
Signature:
(Prapti Sachan)
1st Semester, 1st Year
2
Acknowledgement
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this all along the completion of my
project work. Whatever I have done is only due to such guidance and assistance and I would
not forget to thank them.
I respect and thanks Mr.Shashank Shekhar, for giving me an opportunity to do the project
work on the topic ―Comparative Analysis of Legal Systems: India, U.S. and U.K‖ and
providing me all support and guidance which made me complete the project on time.
The completion of this project could not have been possible without the participation and
assistance of various people thus, I would also like to thank my parents and friends who helped
me in finalizing this project within the limited time frame .
I would also like to thank the Great Almighty, source of supreme knowledge for countless love
rendered on me.
(Prapti Sachan)
1st Semester, 1st Year
3
Table of Contents
Introduction ............................................................................................................................................ 6
LEGAL SYSTEM OF UNITED STATES ......................................................................................................... 8
Background ......................................................................................................................................... 8
Structure of the Federal Court System ............................................................................................... 8
Structure of State Court Systems ........................................................................................................ 9
Court Administration ........................................................................................................................ 10
Judges................................................................................................................................................ 11
Prosecutors ....................................................................................................................................... 12
Lawyers ............................................................................................................................................. 12
LEGAL SYSTEM OF UNITED KINGDOM .............................................................................................. 14
Background ....................................................................................................................................... 14
Court System ..................................................................................................................................... 15
The Hierarchy of the courts .............................................................................................................. 16
The European Court of Justice ...................................................................................................... 16
Supreme Court of United Kingdom(formerly The House of Lords) .............................................. 16
Privy Council .................................................................................................................................. 16
The Court of Appeal ...................................................................................................................... 17
The High Court .............................................................................................................................. 17
The Crown Court ........................................................................................................................... 17
European Court of Human Rights ................................................................................................. 18
The common law and legislation ...................................................................................................... 18
Legislation ......................................................................................................................................... 18
The law-making role of the judges.................................................................................................... 19
The Legal Profession ......................................................................................................................... 19
LEGAL SYSTEM OF INDIA ....................................................................................................................... 21
Background ....................................................................................................................................... 21
The Common Law System in India .................................................................................................... 23
Court System ..................................................................................................................................... 23
Supreme Court .............................................................................................................................. 23
High Courts.................................................................................................................................... 24
District Courts ............................................................................................................................... 24
Sources of Law .................................................................................................................................. 25
Customs......................................................................................................................................... 25
4
Statutes ......................................................................................................................................... 26
Precedents .................................................................................................................................... 26
Change in the concept of law ........................................................................................................... 27
Independence of judiciary ................................................................................................................ 28
CONCLUSION......................................................................................................................................... 30
Bibliography .......................................................................................................................................... 32
References ........................................................................................................................................ 32
Books ............................................................................................................................................. 32
Online Sources .............................................................................................................................. 32
5
Introduction
There are hundreds of legal systems in the world. At the global level, International Law is of
great importance, whether created by the practice of sovereign states or by agreement among
them in the form of treaties and other accords. Many of these are federal or confederal, and
their constituent parts may well have their own law. Basically the current Legal Systems in
world are divided in following main kinds.
Civil law systems have drawn their inspiration largely from the Roman law heritage and
which, by giving precedence to written law, have resolutely opted for a systematic
codification of their general law. It is the most widespread system of law in the world.1
Common law systems is a legal system founded not on laws made by legislatures but on
judge-made laws, which in turn are based on custom, culture, habit, and previous judicial
decisions throughout the world.2
Customary law systems, traditional common rule or practice that has become an intrinsic
part of the accepted and expected conduct in a community, profession, or trade and is treated
as a legal requirement. Today, hardly any political entity in the world operates under a legal
system which could be said to be typically and wholly customary.3
Muslim law systems is an autonomous legal system which is of a religious nature and
predominantly based on the Koran.4
Mixed law systems political entities where two or more systems apply cumulatively or
interactively.5
1
'Legal Systems Of The World' (ChartsBin, 2017) <http://chartsbin.com/view/aq2> accessed 14 October 2017.
2
3
4
6
A number of countries have 'dual' systems in which religious rules govern, and religious
courts adjudicate on, such matters as marriage, divorce, family relationships and possibly
family property, while a secular system with state courts covers the wider fields of public and
commercial law such as India. While on the other hand there are countries which have
completely secular systems such as U.S. and U.K. For some law is an aspiration, for others a
blight. Some societies are proud to proclaim 'the rule of law'. Others see it as fit only for
barbarians and put their trust in the ethical or customary matrix of the community.
So, in this project we are going to see mainly three different types of Legal systems of world
viz. India, U.S. and U.K. and draw a comparison by the way of making contrast among these.
5
7
LEGAL SYSTEM OF UNITED STATES
Background
The U.S. Constitution establishes a federal system of government. The constitution gives
specific powers to the federal (national) government. All power not delegated to the federal
government remains with the states. Each of the 50 states has its own state constitution,
governmental structure, legal codes, and judiciary. The U.S. Constitution establishes the
judicial branch of the federal government and specifies the authority of the federal courts.
Federal courts have exclusive jurisdiction only over certain types of cases, such as cases
involving federal laws, controversies between states, and cases involving foreign
governments. In certain other areas federal courts share jurisdiction with state courts. For
example, both federal and state courts may decide cases involving parties who live in
different states. State courts have exclusive jurisdiction over the vast majority of cases.
Parties have a right to trial by jury in all criminal and most civil cases. A jury usually consists
of a panel of 12 citizens who hear the evidence and apply the law stated by the judge to reach
a decision based on the facts as the jury has determined them from the evidence at trial.
However, most legal disputes in the United States are resolved before a case reaches a jury.
They are resolved by legal motion or settlement, not by trial.
Structure of the Federal Court System
The U.S. Constitution establishes the U.S. Supreme Court and gives Congress the authority
to establish the lower federal courts. Congress has established two levels of federal courts
below the Supreme Court: the U.S. district courts and the U.S. circuit courts of appeals. U.S.
district courts are the courts of first instance in the federal system. There are 94 such district
courts throughout the nation. At least one district court is located in each Courts of Appeals
8
District Courts Federal Circuit Court of International Trade, Claims Court, and Court of
Veterans Appeals Supreme Court state. District judges sit individually to hear cases. In
addition to district judges, bankruptcy judges (who hear only bankruptcy cases) and
magistrate judges (who perform many judicial duties under the general supervision of district
judges) are located within the district courts. U.S. circuit courts of appeals are on the next
level. There are 12 of these regional intermediate appellate courts located in different parts of
the the u.s. legal system: a short description country. Panels of three judges hear appeals from
the district courts. A party to a case may appeal as a matter of right to the circuit court of
appeals (except that the government has no right of appeal in a criminal case if the verdict is
―not guilty.‖) These regional circuit courts also hear appeals from decisions of federal
administrative agencies. One non-regional circuit court (the Federal Circuit) hears appeals in
specialized cases such as cases involving patent laws and claims against the federal
government. At the top of the federal court system is the U.S. Supreme Court, made up of
nine justices who sit together to hear cases. At its discretion, the U.S. Supreme Court may
hear appeals from the federal circuit courts of appeals as well as the highest state courts if the
appeal involves the U.S. Constitution or federal law.6
Structure of State Court Systems
The structure of state court systems varies from state to state. Each state court system has
unique features; however, some generalizations can be made. Most states have courts of
limited jurisdiction presided over by a single judge who hears minor civil and criminal cases.
States also have general jurisdiction trial courts that are presided over by a single judge.
These trial courts are usually called circuit courts or superior courts and hear major civil and
criminal cases. Some states have specialized courts that hear only certain kinds of cases such
6
<https://photos.state.gov/libraries/argentina/231771/IRC/U_S__Legal_System_English07.pdf> accessed 14
October 2017.
9
as traffic or family law cases. All states have a highest court, usually called a state supreme
court, that serves as an appellate court. Many states also have an intermediate appellate court
called a court of appeals that hears appeals from the trial court. A party in a case generally
has one right of appeal.7
Court Administration
The judicial branches of the federal and state governments are separate from the legislative
and executive branches. To insure judicial independence, the judicial branches of the federal
and state governments control the administration of the courts. Court administration includes
managing court budgets, prescribing rules of trial and appellate procedure, reviewing judicial
discipline matters, offering continuing educational programs for judges, and studying court
performance. In the federal judiciary, the Judicial Conference of the United States, made up
of 27 members (the Chief Justice of the United States and 26 judges from each geographic
region of the United States) has overall administrative responsibility for the courts and has
primary authority to make policy regarding the operation of the judicial branch of the
government. The Judicial Conference is assisted by a large number of committees made up of
federal judges (and sometimes also state court judges and attorneys) who study different parts
of the federal court system and make recommendations. An important responsibility of the
Judicial Conference is to recommend changes in the rules of procedure used by all federal
courts. Congress has created three administrative agencies within the judicial branch. The
Administrative Office of the U.S. Courts manages the day-to-day operations of the courts,
including such matters as payroll, equipment, and supplies. The Federal Judicial Center
conducts educational and training programs for judges and court personnel and does research
in the fields of court operations and administration. The U.S. Sentencing Commission
7
'The State Court System Of The United States: Definition & Structure - Video & Lesson Transcript |
Study.Com' (Study.com, 2017) <http://study.com/academy/lesson/the-state-court-system-of-the-united-
states-definition-structure.html> accessed 14 October 2017.
10
develops advisory guidelines for federal judges in imposing criminal sentences. In most state
court systems, the state supreme court has overall administrative authority over the court
system. It is assisted by an administrative office. The chief justice of the state supreme court
usually appoints the director of the state court administrative office.8
Judges
Justices of the U.S. Supreme Court and circuit and district judges are appointed by the
President of the United States if approved by a majority vote of the U.S. Senate. These
justices and judges serve ―during good behavior‖— in effect, a life term. Presidents usually
nominate persons to be judges who are members of their own political party. Persons
appointed are usually distinguished lawyers, law professors, or lower federal court or state
court judges. Once these judges are appointed their salaries cannot be reduced. Federal judges
may only be removed from office through an impeachment process in which charges are
made by the House of Representatives and a trial is conducted by the Senate. In the entire
history of the United States, only a few judges have been impeached and those removed were
found to have committed serious misconduct.9 These protections allow federal judges to
exercise independent judgment without political or outside interference or influence. The
methods of selecting state judges vary from state to state and are often different within a
state, depending on the type of court. The most common selection systems are by commission
nomination and by popular election. In the commission nomination system, judges are
appointed by the governor (the state‘s chief executive) who must choose from a list of
candidates selected by an independent commission made up of lawyers, legislators, lay
citizens, and sometimes judges. In many states judges are selected by popular election. These
elections may be partisan or non-partisan. Candidates for judicial appointment or election
8
<https://photos.state.gov/libraries/argentina/231771/IRC/U_S__Legal_System_English07.pdf> accessed 14
October 2017.
9
Id.
11
must meet certain qualifications, such as being a practicing lawyer for a certain number of
years. With very few exceptions, state judges serve specified, renewable terms. All states
have procedures governing judicial conduct, discipline, and removal. In both the federal and
state systems, judicial candidates are almost always lawyers with many years of experience.
There is no specific course of training for judges and no examination. Some states require
judges to attend continuing education programs to learn about developments in the law. Both
the federal and state court systems offer beginning and continuing education programs for
judges.
Prosecutors
Prosecutors in the federal system are part of the U.S. Department of Justice in the executive
branch. The Attorney General of the United States, who heads the Department of Justice, is
appointed by the President with Senate confirmation. The chief prosecutors in the federal
court districts are called U.S. attorneys and are also appointed by the President with Senate
confirmation. Within the Department of Justice is the Federal Bureau of Investigation, which
investigates crimes against the United States. Each state also has an attorney general in the
state executive branch who is usually elected by the citizens of that state. There are also
prosecutors in different regions of the state, called state‘s attorneys or district attorneys.
These prosecutors are also usually elected.
Lawyers
The U.S. legal system uses the adversarial process. Lawyers are essential to this process.
Lawyers are responsible for presenting their clients‘ evidence and legal arguments to the
court. Based on the lawyers‘ presentations, a trial judge or jury determines the facts and
applies the law to reach a decision before judgment is entered. Individuals are free to
represent themselves in American courts, but lawyers are often necessary to present cases
12
effectively. An individual who cannot afford to hire a lawyer may attempt to obtain one
through a local legal aid society. Persons accused of crimes who cannot afford a lawyer are
represented by a court-appointed attorney or by federal or state public defender offices.
American lawyers are licensed by the individual states in which they practice law10. There is
no national authority that licenses lawyers. Most states require applicants to hold a law
degree (Juris Doctor) from an accredited law school. An American law degree is a
postgraduate degree awarded at the end of a three-year course of study. (Normally individuals
complete four years of college/university before attending law school). Also, most states
require that applicants for a license to practice law pass a written bar examination and meet
certain standards of character. Some states allow lawyers to become bar members based on
membership in another state‘s bar. All states provide for out-of-state lawyers to practice in
the state in a particular case under certain conditions. Lawyers can engage in any kind of
practice. Although there is no formal distinction among types of legal practice, there is much
informal specialization.
10
Just Landed and Just Landed, 'Legal System' (Just Landed, 2017)
<https://www.justlanded.co.in/english/United-States/Articles/Culture/Legal-System> accessed 14October
2017.
13
LEGAL SYSTEM OF UNITED KINGDOM
Background
The United Kingdom of Great Britain and Northern Ireland (UK) consists of four countries:
England, Wales, Scotland and Northern Ireland. Some law applies throughout the whole of
the UK; some applies in only one, two or three countries. The four principal sources of UK
law are legislation, common law, European Union law and the European Convention on
Human Rights. There is no single series of documents that contains the whole of the law of
the UK. United Kingdom does not have a single unified federal system. England and Wales
have one system, Scotland has another system and Northern Ireland has a third system. The
English legal system is centralised through a court structure which is common to the whole
country. It is hierarchical, with the higher courts and judges having more authority than the
lower ones. Some important characteristics of English law are: English law is based on the
common law tradition. By this we mean a system of 'judge made' law which has continuously
developed over the years through the decisions of judges in the cases brought before them.
These judicial precedents are an important source of law in the English legal system.
Common law systems are different from the civil law systems of Western Europe and Latin
America. In these countries the law has been codified or systematically collected to form a
consistent body of legal rules. English judges have an important role in developing case law
and stating the meaning of Acts of Parliament. The judges are independent of the government
and the people appearing before them. This allows them to make impartial decisions. Court
procedure is accusatorial. This means that judges do not investigate the cases before them but
reach a decision based only on the evidence presented to them by the parties to the dispute.
This is called the adversarial system of justice. It can be compared to the inquisitorial
procedure of some other European systems where it is the function of the judges to
investigate the case and to collect evidence.
14
In certain matters, the Tribunal constituted under immigration law has jurisdiction over the
whole of United Kingdom. Certain other Tribunals constituted under some other laws have
jurisdiction over England, Wales and Scotland. The court in England and Wales consists of
senior courts and subordinate courts. Senior courts are Court of Appeal, High Court of Justice
and Crown Court. Court of appeal deals with appeal from other courts.
The legal system of England and Wales is a common law one, so the decisions of the senior
appellate courts become part of the law. The UK is a Member State of the European Union
(EU), which means that EU law takes precedence over UK law. As a Member State of the
Council of Europe, the UK is a signatory to the European Convention on Human Rights
(ECHR). The Human Rights Act 1998, which came into effect in October 2000, enables all
the courts in the UK to protect the rights identified in the ECHR.
Court System
The High Court of justice functions as a civil court of first instance and an appellate court as
regards criminal and civil matters from subordinate courts. It consists of 3 divisions namely
Queens‘s bench, Chancery and Family divisions. These divisions are not separate courts but
have separate procedures and practice adapted for their purposes. Each division is exercising
the jurisdiction of the High Court. Crown Court is a criminal court of both original and
appellate jurisdiction and also handles certain civil cases of first instance and on appeal. It is
the only court in England and Wales that has jurisdiction to try cases on indictment and
regarding that matters it is the superior court and the high court has no appellate jurisdiction
on that matters. Any judge of the High Court can sit to hear cases in the Crown Court.11
Regarding other matters crown court is an inferior court. Subordinate courts consist of
magistrate‘s court, family proceeding court, youth court and county court. The Magistrate‘s
11
Fiona Cownie, Anthony Bradney & Mandy Burton, English Legal System in Context, Fourth Edn., Oxford
university Press, Oxford, 2007
15
courts are presided over by a bench of lay magistrates or a legally trained District Judge. Lay
magistrates are assisted in their work by legally qualified justice‘s clerk. The task of these
officials 51 is wider than the administrative role of many officials in other courts. They hear
minor criminal cases. Youth courts deal with offenders to the age of 10 to 17. Some
Magistrate‘s courts also function as family proceeding courts dealing with family matters.
The county courts have only civil jurisdiction. They are presided over by a District Judge.
The Hierarchy of the courts
The European Court of Justice
Decisions of the European Court of Justice (ECJ) on interpretation of the European Treaties,
validity of the acts of Community institutions and interpretation of the statutes of Council
bodies are binding on all English courts. It appears not to be bound by its own decisions.
Supreme Court of United Kingdom(formerly The House of Lords)
Supreme Court is the final court of appeal in United Kingdom for civil cases. It is a final
court of appeal for criminal cases from England, Wales and Northern Ireland. It was
established by Constitutional Reform Act 2005. Prior to the establishment of the Supreme
Court, this jurisdiction was with the House of Lords. The transfer of the authority from the
House of Lords to the Supreme Court was effected on 1st October, 2009.
Privy Council
Privy Council is the highest court of appeal in some commonwealth countries and colonies
and the Channel Islands. Judges who preside over the judicial committee of the Privy Council
are also members of the Supreme Court. The jurisdiction to hear cases on devolution matters
under the Scotland Act 1998, Northern Ireland Act 1998 and Government of Wales Act 2006
was transferred to the Supreme Court from the Privy Council.
16
The Court of Appeal
This is split into Civil and Criminal Divisions; they do not bind each other. Both are bound
by the House of Lords. In the Criminal Division, the results of cases heard may decide
whether or not an individual goes to prison, so the Criminal Division takes a more flexible
approach to its previous decisions and does not follow them where doing so could cause
injustice.
The High Court
This court is divided between the Divisional Courts and the ordinary High Court. All are
bound by the Court of Appeal and the House of Lords. The Divisional Courts are the Queen‘s
Bench Division, which deals with criminal appeals and judicial review, and the Chancery
Division and the Family Division, which both deal with civil appeals. The two civil
Divisional Courts are bound by their previous decisions, but the Divisional Court of the
Queen‘s Bench is more flexible about this, for the same reason as the Criminal Division of
the Court of Appeal. The Divisional Courts bind the ordinary High Court. The ordinary High
Court is not bound by its own previous decisions. It can produce precedents for courts below
it, but these are of a lower status than those produced by the Court of Appeal or the House of
Lords.
The Crown Court
The Crown Court is bound by all the courts above it. Its decisions do not form binding
precedents, though when High Court judges sit in the Crown Court, their judgments form
persuasive precedents, which must be given serious consideration in successive cases, though
it is not obligatory to follow them. When a circuit or district judge is sitting no precedents are
formed. Since the Crown Court cannot form binding precedents, it is obviously not bound by
its own decisions. Magistrates‘ and county courts These are called the inferior courts. They
are bound by the High Court, Court of Appeal and House of Lords. Their own decisions are
17
not reported, and cannot produce binding precedents, or even persuasive ones; like the Crown
Court, they are therefore not bound by their own decisions.
European Court of Human Rights
The European Court of Human Rights (ECtHR) is an international court based in Strasbourg.
It hears cases alleging that there has been a breach of the European Convention on Human
Rights. This court does not fit neatly within the hierarchy of the courts. Under s. 2 of the
Human Rights Act 1998, an English court is required to ‗take account of‘ the cases decided
by the ECtHR, though its decisions do not bind the English courts. In practice, when
considering a Convention right, the domestic courts try to follow the same interpretation as
that given by the ECtHR12
The common law and legislation
By legislation we mean the law which is made in Parliament in the form of statutes (e.g.
Mental Health Act 1983). Not all cases coming before the courts are covered by legislative
provisions though, and, in such cases, the judge has to make a decision. In doing so, s/he
creates a principle of law, which remains binding on all citizens within the realm until or
unless Parliament enacts legislation to overturn it. The common law is that law which has
been made by judges.
Legislation
As has already been mentioned, legislation is the law made by Parliament in the form of
statutes. Because of the sovereignty of Parliament, it has the power to overrule any principle
of common law, even if that principle has existed for many centuries. However, the European
Court of Justice has the power to over-rule Acts of Parliament if they are in conflict with the
various European treaties, and this has occurred on several occasions. Despite its power,
12
<https://sangu.ge/images/Englishlegal.pdf> accessed 23 October 2017.
18
legislation is an extremely slow-moving process (Griffith and Tengnah, 2010), and judge-
made law is generally more responsive to the changing circumstances of society. Ministers
have a number of powers to update legislative provisions by a process known as secondary
(or delegated) legislation. This enables them to respond fairly quickly to changing situations
and needs of society without the necessity for the time-consuming process of enacting new
legislation, although these powers are restrained and can be challenged in court.13
The law-making role of the judges
In most European countries the judges interpret the legal code. In doing this they do not
themselves deliberately set out to create law. Later in this chapter, when we study the
doctrine of judicial precedent, we shall see that the English courts are arranged in an
hierarchical structure and that courts lower down the hierarchy must follow the previous
decisions of courts which are higher up. Senior English judges therefore have a dual role.
First, they interpret the existing law, which is to be found in legislation and previous
decisions of higher ranking courts. Second, they create the law by making legal principles
which courts lower down the hierarchy are bound to follow.14
The Legal Profession
The British legal profession, unlike that of most other countries, includes two separate
branches: barristers and solicitors (the term ‗lawyer‘ is a general one which covers both
branches). They each do the same type of work – advocacy, which means representing clients
in court, and paperwork, including drafting legal documents and giving written advice – but
the proportions differ, with barristers generally spending a higher proportion of their time in
court. For most solicitors, paperwork takes up much of their time. It includes conveyancing
13
(2017) <https://www.sagepub.com/sites/default/files/upm-binaries/50943_01_Avery_CH_01.pdf> accessed
23 October 2017.
14
<http://shodhganga.inflibnet.ac.in/bitstream/10603/28501/9/09_chapter2.pdf> accessed 23 October 2017.
19
(legal aspects of the buying and selling of houses and other property) and drawing up wills
and contracts, as well as giving written and oral legal advice.
There are around 14,000 barristers in independent practice, known collectively as the Bar.
Their governing body is the Bar Council, which acts as a kind of trade union, safeguarding
the interests of barristers. The Bar Council, like the Law Society, has tried to separate its
representative functions from its regulatory functions, and has therefore established a Bar
Standards Board responsible for regulating the Bar. The Board makes the rules and takes the
decisions affecting entry to, training for, and practice at the Bar, including disciplinary issues.
Advocacy is the main function of barristers, and much of their time will be spent in court or
preparing for it. Until the changes made under the Courts and Legal Services Act in 1990,
barristers were, with a few exceptions, the only people allowed to advocate in the superior
courts – the House of Lords, the Court of Appeal, the High Court, the Barristers Crown Court
and the Employment Appeal Tribunal. We have seen that this has now changed, and they are
increasingly having to compete with solicitors for this work. Barristers also do some
paperwork, drafting legal documents and giving written opinions on legal problems.15
After ten years in practice, a barrister may apply to become a Queen‘s Counsel, or QC
(sometimes called a silk, as they wear gowns made of silk).
15
<https://sangu.ge/images/Englishlegal.pdf> accessed 23 October 2017.
20
LEGAL SYSTEM OF INDIA

Background
Year 1947- India had just won its independence over the British and this was the start of
something new for the entire nation as well as for its legal system. A Constitution was going
to be enacted and the Indian judiciary was forever going to change. To better understand the
evolution of law or the history of India‘s legal system, let‘s go some centuries back. Around
3300 BC, with the dawning of the Indus Valley Civilisation began the Bronze Age on the
Indian subcontinent. Throughout this era, Karma played a significant role concerning laws.
Later on, in around 1500 BC, the Vedic Ages began in India. At that time, Aryans were the
ones developing the Vedic culture basing themselves on the Vedas, which represented the
best knowledge for the Hindus. The Vedas, Upanishads and other religious books of the
Hindus, Jains and Buddhists put laws in place in Ancient India, further exposing Indians to
laws. An outstanding feature of the Ancient Indian law is that it was secular, that is, not
concerned with religion, though it varied from kingdom to kingdom. Several leading
dynasties of Ancient India had court systems dealing with criminal and civil cases. Such
dynasties are that of the Mauryas and the Mughals with the latter paving the way for the
current common law system.
During the 7th century, upon the invasion of the country by Muslims, Islamic laws became
applicable for the Muslims living there at that time. Moving up in time, in 1726, the British
rule began... The whole system was then changing to a common law one and from this point
onwards, India‘s modern legal system established. The common law system- a system
whereby great emphasis is placed on court decisions, which are considered ―law‖.
With Supreme Courts being established, the existing mayoral courts were converted into the
first High Courts and the superintendence of lower courts and the enrolment of
21
law practitioners were deputed to the respective High Courts. These changes were authorised
by the Indian High Courts Act, passed by the British Parliament in 1862.These major shifts in
the Indian legal system had a ripple effect, further reinforcing the transformation. During the
British rule in India (1857-1947), the Privy Council acted as the highest court of
appeal. Cases before the Council were adjudicated by the Law Lords of the House of
Lords. The State sued and was sued in the name of the Britain sovereignty in her capacity as
Empress of the country. Moreover, throughout the shift from the Mughal legal system, the
advocates under that regimen (―vakils‖) also followed suit, though they mostly continued
their earlier role as client representatives. At that time, access to the newly-created Supreme
Courts was limited to members of the English, Irish and Scottish professional bodies; only
they had the right of audience and Indian practitioners were not allowed in. Subsequently,
rules and statutes were established in the Legal Practitioners Act of 1846 which opened up
the profession, regardless of nationality or religion. Codification of the law also began in
earnest with the foundation of the first Law Commission. Under the stewardship of its
chairman, T.B. Macaulay, the Indian Penal Code was drafted, enacted and implemented
by 1862. During that period, different Codes and Acts were drafted and promulgated, the
major ones being Code of Criminal Procedure, Evidence Act and ContractsAct.
The Constitution of India came to effect on 26th January 1950 and became known as the most
supreme legal document. Today, it is also regarded as the longest Constitution in
the world. The latter creates the most important institutions of the State and the framework
for their effective co-existence. It is the foundation stone of all the matters relating to
judiciary, executive and legislature. Despite its wide scope, the Constitution has been fine-
tuned to the needs of the people
22
through judicial pronouncements and legislative action. It puts an end to colonial interests, fo
cuses on public welfare, and empowers the general public. The social changes, brought with
the changes in the common law system, reflect the move of the Indian legal system towards a
social justice paradigm.16
The Common Law System in India
The common law system , from the British rule, gave rise to an organic law which became
the material source of law. The Indian Judicial system has been modelled on an adversarial
system of conducting proceedings rather than an inquisitorial one. In an adversarial system, 2
advocates represent their parties' positions before an impartial person or a group of people,
usually a judge or jury, who attempt to determine the truth of the case instead of having a
judge or a group of judges having the task to investigate the case.
Court System
The Indian Judicial system has one integrated court system to deliver and administer state
and union laws. All the Courts and the Tribunals & Regulators work together for the good of
the nation. At the top of the court structure is the Supreme Court, followed by the State High
Courts, the subordinate courts that comprise of District Courts amongst others.
Supreme Court
To date, the Supreme Court of India has delivered more than 24,000 reported judgements. Its
roles are that of a federal court (that is, to act as guardian of the Constitution) and that of the
highest court of appeal. The jurisdiction and powers given to the Supreme Court are defined
under Articles 131 to 142 of the Indian Constitution and consist of appellate jurisdiction and
writs.
16
Shekyn Saurty, 'Indian Legal System' (Academia.edu, 2017)
<http://www.academia.edu/11156505/Indian_Legal_System> accessed 23 October 2017.
23
It has the power to hear a case for the first time as well as to review a lower court‘s
decision. Article 32 grants original jurisdiction to the Supreme Court for the enforcement of
fundamental rights of citizens and Article 139 for the enforcement of rights other than
fundamental rights
High Courts
Currently, there are 24 High Courts at the State level which have jurisdiction over a state,
a union territory or a group of states and union territories. They are the main civil courts of
original civil and criminal jurisdiction in the state, along with their subordinate District
Courts.
Nonetheless, in spite of this, High Courts only exercise this role if the subordinate courts arei
ncompetent (not authorised by law) to try such matters because of lack of pecuniary,
territorial jurisdiction
or in certain matters like if so designated specifically in a state or Federal law. Forexample,
Company Law cases are instituted only in a High Court. However, the principal work of most
High Courts entails appeals from lower courts and writ petitions under Article 226 of the
Constitution. Unlike the Supreme Court, High Courts can only issue writs for enforcement of
the rights provided under Part III of the Indian Constitution.
A salient feature of the Indian judicial system is that the Supreme Court and the High Courts
have the power of judicial review, a concept prevalent in America. This refers to the court's
authority to examine an executive or legislative act and to invalidate that act if it is ultra vires
to constitutional principles.
District Courts
The District Courts , established by the State governments in India, administer justice for one
or more districts together, depending on the number of cases and population distribution in
24
the district. This determines the original jurisdiction of these courts. Also, they
have appellate jurisdiction over all subordinate courts situated in the district on both civil and
criminal matters. One such subordinate court on the civil side is the Junior Civil Judge Court
while one on the criminal side is the Chief Judicial Magistrate Court. District Courts are
under administrative control of the High Court of the State to which the district
concerned belongs.
Sources of Law
The Indian Legal system is based on a hybrid judicial system comprising of customs,
precedents and legislative law, all sources of law
Customs
Customs are the oldest source of law and they played a significant role in law-making. Also
known as ,Customary Law, Keeton defines it as ―those rules of human action, established by
usage and regarded as legally binding by those to whom the rules are applicable, which are
adopted by the courts and applied as sources of law because they are generally followed by
the political society as a whole or by some part of it‖.
Being unwritten, it is sometimes called jus non-scriptum, in contrast to legislation which is
called jus scriptum. Not every custom
becomes law. For a custom to be valid, 2 main requirements should be met. Firstly, there
must be a material element, the Repetitio- the custom must be observed uninterruptedly for a
very long time. And secondly, there must be an intellectual element- the Opinio Necessitatis-
the general public must support the custom and feel a legal obligation toadhere to it. A valid
custom is law unless overruled by legislation. With time, custom as a source of law is being
replaced by statutes and judicial precedents.
25
Statutes
Statutes (or Statutory law or the legislation) is the most important and modern source of
law. In India, laws are promulgated by the Parliament and state legislatures for the guidance
or conduct of persons to whom the statute is applicable expressly or by implication (Enacted
Law or Statute Law). This function is empowered by the Constitution. Today, legislation is
accepted as superior to all other sources of law. It is not merely a source of new laws, but is
equally effective in abolishing those which already exists.
Precedents
Another essential source of law is the judgements of the Supreme Court, High Court and
some of the specialised Tribunals called Judicial Precedents , they are rules of law based on
the principle that ―like cases must be treated alike‖. Moreover, they not only decide legal and
factual issues in a case but also, interpret/declare the law. This interpretation/declaration of
the law - the Ratio Decidendi- is a binding precedent. Judge-made laws or case laws also
exist, whereby judges apply their own common sense and justice to decide a case and
pronounce a judgement. This principle by which a judicial decision becomes a precedent
is known as "Stare Decisis" (Literal meaning: ―stand by the decision‖).
Like in England, the practice of judicial precedents is also very prevalent in India. For
instance, each court is absolutely bound by the decisions of courts superior to it according to
Article 141of the Constitution. The Ratio Decidendi and the Obiter Dicta of the Supreme
Court constitute binding precedents to be followed by all the other courts
and tribunals. However, the Supreme Court is not bound by its earlier decisions and may
reverse certain decisions if need be. In contrast, the judgments of a State High Court are
binding on itself and on all subordinate courts and tribunals in the State but they are not
binding on another High Court or on courts subordinate to another High Court. They
26
can however be of great persuasive value. And for specialised tribunals, their judgements are
binding on themselves but not on the courts or other tribunals.
Literally meaning ,‖just‖, ―fairness‖ and according to good conscience, ―equity‖ is another
crucial source of law, especially when the existing law is inadequate or silent with regard to a
particular case. The judges then generally apply their common sense, justice and fairness to
deal with such cases.
Change in the concept of law
The British tradition introduced in India was that the function of the judges was to interpret
and apply the law and not to make the law. The American Constitution gave a wider role to
the judges by making legislation itself subject to judicial review. Opinions have been
expressed in England by Lord Hailsham, T. B. Smith17 and Sir Leslie Scarman,18 that a Bill
of Rights should,, be enacted even in England and be placed beyond the reach of ordinary
parliamentary legislation. But the majority of the English judges prefer their modest role.19
The British view is based on the positivist concept of law, which is the lawyers' view of the
law.
According to this view, anything is law if it meets the conditions of validity laid down in the
system's rules of recognition or any other rules of the system.23 But the American Realist
School and other jurists such as Lon Fuller24 emphasize moral purpose of law and the
necessity to allow the courts to have review powers over legislation and administrative action
to ensure conformity to the rule of law. From the inception of the Constitution of India also a
17
Basic Rights and Their Enforcement, 197
18
English Law: The New Dimension, 1974
19
Lord Devlin, "Judges and Law Makers", 39 Modern Law Review, 1976, p. 1 and Lord Lloyd of Hampstead: "Do
We Need a Bill of Rights?" 39 Modem Law Review, 1976, p.121.
27
tugof-war between two views of law may be seen to be going on. One view is that the final
say as to what the law is must be with Parliament particularly when Parliament resorts to
constitutional amendments to make the intention of the Constitution clear. On this view the
judges should not make innovations in law by construing the Constitution to reserve the last
say to the courts. The competing view is that the Constitution itself has intended the lasting
values enshrined in it to be beyond the day to day controversies and that the function of the
judges is to preserve these values by an appropriate interpretation of the Constitution (e.g.,
the majority decision in Kesavananda Bharati's case). This is not to thwart the will of the
people, but, on the contrary, to give effect to the same will as enshrined in the Constitution
with a view to ensuring to them a comparative permanence. It is to be seen whether
Parliament reconciles itself to this judicial view of law and the judicial function either by
refraining from amending the Constitution to abrogate the doctrine of basic structure or
features of the Constitution as being unamendable, or by incorporating into the Constitution
the doctrine by further constitutional amendment.
Independence of judiciary
India is credited with having the most powerful and independent judiciary in the world.
Indian judiciary owes its origin to the judicial system which existed in the British India. After
independence, the constituent assembly, which drafted the Constitution provided for the
establishment of a three-tier judiciary which is completely independent of the other two
organs of the state - the executive and the legislature. The reason for making judiciary
independent was that during the British rule executive and judicial functions were combined
in the collector-magistrate in a district, making him a local dictator. The framers of the
Constitution did not want this to be repeated and hence established a judicial system under
28
which from the highest court of the land to the lowest, they function in a spirit of judicial
independence, i.e., independent of the executive and the legislature. Independence of the
judiciary is thus a basic structure or a basic feature of our Constitution. 19 There are two
dimensions of judicial independence: (a) individual independence of a judge; and (b)
institutional or collective independence of the court or tribunal of which that judge is a
member. The Supreme Court stands at the apex of the judicial hierarchy along with high
courts and subordinate judiciary, all with specified powers and functions.20
20
(2017)<http://14.139.60.114:8080/jspui/bitstream/123456789/738/5/Nature%20of%20the%20Indian%20Le
gal%20System.pdf> accessed 23 October 2017.
29
CONCLUSION
In the United States of America, the legal system or the common law system is totally
different from the other two. Only the laws passed through mechanics established by the
constitution are valid in nature. Any law that occurs to be inconsistent with the limitation,
structures or principles established by the constitution is termed as invalid. Another
prominent feature of legal system of U.S. is the scheme of separation of powers, preserving
the liberty feature of the legal system. The president is the head of the state and the head of
the government.
Since the state of UK does not have any written constitution, its common law system lacks
the status of fundamental or higher law, thus preliminary sovereignity and legislative
supremacy are the only salient features of the legal system of the UK. As the constitution is
not written in the sense of a single document just as in the case of India, defining the powers
of the government and rights of the individual, the legal system is flexible in nature and is
based on the continuity of the development. Seeing into the structure, UK has constitutional
monarchy. The legislature there is bicameral in nature and it is also unitary state opposing the
definition of a federal state. Talking about the judiciary, it‘s independent
In India, the legal system is mixed in nature and can be defined as quasi in nature, for
example the constitution of India is written in nature including salient features of other
countries like USA, France, Germany etc. The Constitution of India on which the whole legal
system is based is the longest written constitution of the world. The powers are dividing thus
it has the feature of decentralization of powers. The judiciary is independent in nature but is
also regulated by the unions. As in the USA The President is the head of the sate of India.To
30
every law and other thing there is review option which is termed as amendments which
modifies law with the current scenario and the future.
Therefore, in the light of the research done and facts collected it can be concluded legal
systems of all three nations are similar yet unique in their own ways. Despite having so many
dissimilarities they stand head strong in this world. They are by and large successful and will
always serve as an example to other legal systems in the world.
31
Bibliography
References
Books
1. Major legal systems in the World today (by René David)
2. Mixed Legal Systems, East and West (by Mohamed Y.Mattar & V.V. Palmer)
Online Sources
 'Legal Systems Of The World' (ChartsBin, 2017) <http://chartsbin.com/view/aq2>
accessed 14 October 2017
 <https://photos.state.gov/libraries/argentina/231771/IRC/U_S__Legal_System_Englis
h07.pdf> accessed 14 October 2017
 'Introduction To The Federal Court System | USAO | Department Of Justice'
(Justice.gov, 2017) <https://www.justice.gov/usao/justice-101/federal-courts>
 'The State Court System Of The United States: Definition & Structure - Video &
Lesson Transcript | Study.Com' (Study.com, 2017)
<http://study.com/academy/lesson/the-state-court-system-of-the-united-states-
definition-structure.html> accessed 14 October 2017
 Landed J and Landed J, 'Legal System' (Just Landed, 2017)
<https://www.justlanded.co.in/english/United-States/Articles/Culture/Legal-System>
 (2017) <https://sangu.ge/images/Englishlegal.pdf> accessed 23 October 2017
 (2017) <http://shodhganga.inflibnet.ac.in/bitstream/10603/28501/9/09_chapter2.pdf>
32
 Saurty S, 'Indian Legal System' (Academia.edu, 2017)
<http://www.academia.edu/11156505/Indian_Legal_System> accessed 23 October
2017
 <http://14.139.60.114:8080/jspui/bitstream/123456789/738/5/Nature%20of%20the%2
0Indian%20Legal%20System.pdf> accessed 23 October 2017
 (2017) <https://www.sagepub.com/sites/default/files/upm-
binaries/50943_01_Avery_CH_01.pdf> accessed 23 October 2017
33

Contracts Final Draft

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Contracts Final Draft

Hochgeladen von

Copyright:

Verfügbare Formate

BASICS OF LEGISLATION

DR. RAM MANOHAR LOHIA NATIONAL

Comparative Analysis of Legal Systems:

been duly cited and accredited.

1st Semester, 1st Year

not forget to thank them.

me in finalizing this project within the limited time frame .

1st Semester, 1st Year

world are divided in following main kinds.

decisions throughout the world.2

system which could be said to be typically and wholly customary.3

predominantly based on the Koran.4

LEGAL SYSTEM OF UNITED STATES

They are resolved by legal motion or settlement, not by trial.

Structure of the Federal Court System

appeal involves the U.S. Constitution or federal law.6

Structure of State Court Systems

has one right of appeal.7

government. The Judicial Conference is assisted by a large number of committees made up of

usually appoints the director of the state court administrative office.8

exercise independent judgment without political or outside interference or influence. The

candidates selected by an independent commission made up of lawyers, legislators, lay

elections may be partisan or non-partisan. Candidates for judicial appointment or election

These prosecutors are also usually elected.

represented by a court-appointed attorney or by federal or state public defender offices.

LEGAL SYSTEM OF UNITED KINGDOM

investigate the case and to collect evidence.

Council of Europe, the UK is a signatory to the European Convention on Human Rights

the courts in the UK to protect the rights identified in the ECHR.

The Hierarchy of the courts

The European Court of Justice

Supreme Court of United Kingdom(formerly The House of Lords)

was transferred to the Supreme Court from the Privy Council.

The Court of Appeal

The High Court

The Crown Court

Court, they are therefore not bound by their own decisions.

European Court of Human Rights

that given by the ECtHR12

The common law and legislation

been made by judges.

have a number of powers to update legislative provisions by a process known as secondary

The law-making role of the judges

which courts lower down the hierarchy are bound to follow.14

The Legal Profession

and contracts, as well as giving written and oral legal advice.

(sometimes called a silk, as they wear gowns made of silk).

LEGAL SYSTEM OF INDIA

current common law system.

supreme legal document. Today, it is also regarded as the longest Constitution in

tuned to the needs of the people

social justice paradigm.16

The Common Law System in India

system of conducting proceedings rather than an inquisitorial one. In an adversarial system, 2

judge or a group of judges having the task to investigate the case.

or in certain matters like if so designated specifically in a state or Federal law. Forexample,

the rights provided under Part III of the Indian Constitution.

precedents and legislative law, all sources of law

the political society as a whole or by some part of it‖.

Being unwritten, it is sometimes called jus non-scriptum, in contrast to legislation which is

called jus scriptum. Not every custom

replaced by statutes and judicial precedents.

or conduct of persons to whom the statute is applicable expressly or by implication (Enacted