I Indian Legal System

(A) Introduction

Indian Legal System has been compared with

1
'Triveni1 meaning confluence of 3 rivers .Thus,

there are 3 streams which make the Indian Legal

f
System. The first one is that of Common Law, the

second one is that of Civil Law and the third one

consists of the Personal and Customary Laws. Let

us examine each one of them in some detail.

Common Law ; It is generally assumed that India

is a Common Law Country. In many countries of

the world where colonisation by England took place;

common law is found to be dominant even after

decolonisation. English people took with them to

their colonies the legal system which has come

to be known as Common Law system.

Common Law simply speaking is Judge made Law

1 3.
or Case-law. Setalvad defines common law as:

"those unwritten legal doctrines embodying

custom and tradition which have been
developed over the centuries by the courts".

23
Whenever the disputes between different citizens
reach a stage at whiqhr''omf""of the parties seek

redressal of the grievance in the court of law,

the decisions by the courts are responsible for

the development of Common law. In deciding the

disputes between the people, the Judges

interpret
2A
and apply Black letter Law or Civil Law if it

is available and they decide the cases on the basis

of the principle of Stare Decisis(2). It is a

doctrine that when court has once laid down a

principle of law as applicable to a certain state

of fact it will adhere to that principle, and apply

it to all future cases where facts are substantially

the same, regardless of whether the parties and

property are the same. Under the doctrine,

deliberate or solemn decision of court made after

argument; a question of Law fairly arisen in the

case, and necessary to its determination, is an

authority, or binding precedent in the same court,

or any other courts of equal or lower rank in

subsequent cases where the very point is again

in controversy.^

Thus, on the basis of the principle of Stare

Decisis, the Judges develop a set of law which

is termed as Common law. If there are no precedents

24
 or codified law in respect of a particular fact

situation the Judges apply some very fundamental

principles to the dispute and decide the same.

They are the principles of justice, equity and

good conscience. In this process Judges, not only

apply the law but iii^even make the law.

In India, 'the English courts started the

development of common law. After independence,

the same was

continued under our Constitution by
<*'l 4 5/
f3 virtue of Art.3727~7@L Moreover, Articles 32, 226
and 227 of our constitution give a power of judicial

review i.e. our judiciary is empowered to strike

down any legislation if it is found to be violative

of the fundamental rights of citizens. Thus the

courts are given wide powers to do justice. We

in India have a unitary and not^Jbs&l judicial

system in the sense that the questions of Central

Law and State law are not decided by different

7 /
courts . Sofelso, there is fusion both of common

law and equity jurisdictions in the same courts

in India. The Indian Courts have over a period

of time even departed from the English common law

whenever Indian circumstances and society demanded

such a departure.

Common law is based as Holmes would say "the

25
 L

life of law has not been loa-i-c-i-fe--has been

O
experj.-errc'e"' . Even ' if there are Codes and Black

Better Laws, legislature has its limitations to

foresee and take into consideration all the possible

contingencies. Many a timep^ the legislations are

vague or open textured. Thus, it is only the Common

law which helps the redressal of disputes by filling

in the gaps in the legislation.

For a long time, the Judges 'brought up in

the Common Law tradition denied that they were

law makers. The myth was that they,.^either found

the law or interpreted it. Today, it is. not disputed

that Judges make the law even in India. There

are many occasions where the statutes do not give

direct answers to the issues beforie, the judge and

so they have to on the basis of their sense, of

justice in fact carve out new principles of law.

Moreover the common law attitude of 'treating

judicial decisions as binding on fjuture courts

no longer holds good. Today's judges 'believe in

overruling the past decisions if found necessary

to do so due to changes in time and circumstances.

Today's judges not only find and 5 make law but

also state what the law ought to be. This trend

i

has been notable in India since the decision of

26
 8A
Golaknath. Thus, today the innovative and

creative elements are part of the judicial function.

Because of this, today Judges are more accountable

to the people considering their law making
function.^

Civil Law; Law needs to be certain, precise and

predictable. Civil Law or Codified Law or Black

Letter Law is looked at to fulfil this requirement

of certainty.* The idea of Civil codes is derived

from the Codes of continental Europe, where the

Judges decide each case on its merits by applying

the law as enacted into the Codes and not in

confirmity with the system of stares decisis. Some

of the common law in India 1

is codified.
Codification of Indian Laws started ' during British

regime. For this purpose, Law Commissions were

appointed by the British Government.

The Second Law Commission gave final shape

to Macaulay's Penal Code. It also prepared drafts

of the Code of Civil Procedure and the Code of

Criminal procedure, incorporating into them

i i

materials left by the first law commission. Later

on these Codes were enacted by the legislative
1

councils as Laws of India and again due to Article

27
 10
372 of the Constitution of India, they have

remained binding Laws till today. The second Law

commission however emphasised that such a body

of law ought to be prepared with a constant regard

to the conditions and institutions of India and

the character, religions and usages of the

population. 11 The Indian Penal Code, the Code

of Criminal Procedure, Indian Evidence Act, the

Civil Procedure Code, the Transfer of Properties

Act.the Indian Contract Act are some of the classic

pieces of codified Law in India. It should however

be borne in mind that much is added to all these

pieces of legislation by the courts in as-much-as

due to the disputes between the parties, the courts

have to interpret the various provisions of these

codified laws and in the process as we have seen

above, the courts have developed their own set

of law the Common law.

The Constitution of India in Articles 245

to 255 distributes the legislating powers of the

Central Government and the State Governments.

Accordingly, in the Vllth Schedule to the

Constitution, list I is the Union list, List-II

is the State List and list-III is the Concurrent

list. In respect of the items in list-I, it is

28
the Central Government which has powers to make

Laws, in respect of item II it is the State

Government which has powers to make Law and in

respect of List-Ill Central Government as well

as State Government can make Laws. In case of any

conflict between the Union and State laws, the

Union laws prevail. This is in contrast with the

American Constitution where residuary powers vest

with the States and people

12 Accordingly, at number

of laws have been passed by the Central as well

as State Governments in India.

Today, there is another sub-branch of this

type of law which is fast developing due to

increasing state intervention and regulation of

the complex modern world. It is Administrative"^

I
law essentially comprising of the rule's made by

those branches of the government which are

responsible for execution of laws for their working.

Administrative Law determines the organisation,

powers and duties of administrative authorities.

In India too there has been enormous ; growth of

13
Administrative Law.
i

In civil law systems of the world, system

of precedent is not given the same I scope and status

as it enjoys in common law systems.

29
Personal and Customary Law; Now coming to the third

stream of law which consists of Personal Laws of

various communities in India, it should be noted

that India is a Heterogeneous country. It has

a very long cultural heritage. The oldest part

of the Indian Legal system is the Personal Laws

governing Hindus and Muslims. They are based on

the religious treatises of thei respective religions.

Some portion of this Law too has been codified

Directive principle of common civil coda as

enshrined in Article
of 44 the Constitution of

India still remains an ideal 1 5

Apart from above, the customary Laws of various

tribal communities and other ethnic groups also

form part of the Law administered in India. To

cite one instance, matriliny among the Muppila

Muslims of Kerala though not favoured by the Tenets

of Islam, is permitted to play .a decisive role

16
in the rules of succession applicable to them.

(B) A critical appraisal.

From the above introduction, it is clear that

Indian Legal System is a mixed legal^svstem. The

ideal of uniform Civil Code as expected in

30
constitution is not easy to achieve due to

political, social and religious reasons. One

feature of the Indian legal system is that it has

a great influence in making, interpreting and

executing the Laws of the British Legal system.

Our legislation is based on a parliamentary system

of democracy., Our executive branch has a' .similar

executing machinery as that of the English executing

machinery. Our judiciary is unified arid 1 it too

'
!
has a great influence of the British system.
1 ' i |.
After independence a number of changes have

been made, yet our legal system basically remains

a British based common law system. It :has its

obvious advantages and disadvantages. ,

The Western oriented and based legal, system

I

which is imposed on India is based on' the paramounc]

of individual right. Judge is supposed to be blind,.

unbiased and completely objective. To the Romans,

Justice was 1 a goddess whose symbols werd a throne

;i
that tempa;sts could not shake, a pulsfe- that i passion
1 i *
' i

could not stir, eyes that were blind to any, feeling

r' { i 1

of favour or ill-will, and the sword that fell

on all offenders with equal certainty and with

17.
impartial strength. The adverserial system

aims at giving fullest opportunity to both the

31
sides on the principle of natural justice. The

concept of the due process of law is given great

importance.

The most important principle is that of the

rule of Law. The classic description of the rule

18
of Law given by A. V.Dicey includes i) the

absence of exercise of arbitrary powers on the

part of the Government which always acts according

to law,

ii) legal equality i.e no man is above the law

and that everyone is subject to the; ordinary law

of the land and is amenable to the jurisdiction

of the ordinary courts and Tribunals, and

iii) Customary and the Common law rights of people

, i
I
result in judicial decisions form the general rules

of constitutional law. !

The above principles on which the western

legal system is based are noble. However, it has

its defects and again when pat into< practice they

, ij
jjxvg|^ rise to a number of problems.! David Kayris,

Garett Dorsey and other Marxist thinkers of law

reject the common western characterisation of the

Law and the State as neutral, value

a
free and
i

independent of and unaffected by social and economic

1
relations, political forces and 1 the cultural

32
phenomena. They call it "myth of legal reasoning"

creating a distorted notion of Government by law

and not people. They challenge the core assumptions

of the western system. 1 9

The dispute settlement systems of the world

in which communetarian ends are;1 paramount, the

emphasis is not on who wins or who looses but rather

on bringing about an amicable settlement, and

preserving -the community relations. On the other'

t
hand, in the western adversarial, system winning

or loosing is crucially important, and sincd

individual rights are paramount neither the lawyers

nor the Judges think about the preservation of

( 20
community relationships. As Folberg states,

"litigation only fans flames. Whenever, you,

have a relationship that should continue,
winning and loosing only creates further'
friction". '
He observes that many of the personal cases Imay

not belong in court, or belong there only as the

final resort after efforts at conciliation. Lawyers,

judges and others in the Adversary system are

trained in precision which he says is the antithesis

of what we want, to help parties resolve matters
which are sensitive.
Lord Del^in recejjtiy^pSinted out some major

33
defects in the present legal system in Britain.
According to him , the availability of legal

services depend upon wealth rather than need,

mitigated only marginally by legal aid, which

rightly has low priority amongst the social

services. Justice is defined by an adversary system

which is costly and primarily protects only the

better -offs and the focus of the system on,

protecting property tends to obliterate the social

responsibility of the lawyers. These words apply,

equally to the situation in India. 21

Sandle points out that within academic

philosophy - the last decade has seen the ascendance

of the rights based (Kantian) ethic over the

utilitarian-one. But the Kantian right based ethic

is recently faced with challenge from a view that,

t j

gives fuller expression of the claims of the

citizenship and community than the liberal vision

. I
allows, which has come to be known as
I

communetarianism based on Hegoell & Afistotle,

they argue that we cannot justify political

arrangements without reference to common progress

and ends, and that we cannot conceive of ourselves

without reference to our roll as citizens, as

participants in a common life.

34
 Number d such criticisms are being made

against the present 'Indian legal system; Laws

delays, high Cost of litigation are main criticisms.

In pursuit of giving opportunity to both sides

on th^ noble, principle of natural justice, it is

the procedural formalities which asstime great

Importance as against substantive justice. Truth

seems to be given a back place as against justice

' 23
according to law. The due process of law is

used by scrupulous litigants , with*- the help of

intelligent lawyers to defeat Civil 'and/or Criminal

i 1 t
liability. Judges just seem to be passing the

order; of "other side to say" oh any application

' ; ,1 :
that , comes in front of them without ! even applying

their mind to the same.

ilndian law students are taught by lecture

methods, not the famed "Socratic" method us ad in

i <

the United States. Indian law; students rarely

read, actual case reports. There ,is uniformity

and rigidity. about the subjects ; taught, books

prescribed and examinations conducted. In contrast

with the. U.S. as we shall see where most law

students intend to make careers as. lawyers,, most

Indian law students do not intend to; practice law.

Instead, they intend to use the law degree as a

35
 24
credential for advancement in other careers.

Among the prominent features of Indian lawyers

are their orientation to courts to the exclusion

of other legal settings, their orientation to

litigation rather than advising, negotiating or

planning, their conceptualism and orientation to

rules, their individualism and their lack of

specialisation. 25
In short, therefore, all is not well. In

a system like that of ours where in fact tradition

and culture gives more importance to communetarian

ends, a n^un^r^of problems have arisen due to

imposition of the western legal system. 70% of

the Indian population depends on agriculture and

is living in villages. 40% of the Indian population

is below the poverty line. Illiteracy rate is

very high. We can not therefore even expect the

l

majority of the Indians to understand such a legal

system and that they therefore can not really

protect and enforce their legal rights. There is

great need and scope for reforms aimed at increasing

the access to justice of the Indian people;.

In the words of Prof. C.G. Raghavan:

"The dilemma of Indian Jurisprudence is the

incongruity involved in our operating on

36
 the levels of substantive and processual
justice with a legal system and a legal
methodology which ill-fits the needs of the
present because apart from the cultural
contradictions which are inherent in any
system of justice which is modelled on the
patterns of the common law, modernisation
and social change are constitutional objectives
that cannot be realised speedily and adequately
without imaginative institutional innovations
and adaptations of some sort"

In such a situation, what arose on the

horizons of Indian legal system recently was public

interest litigation. Akeen, to this concept is

the concept of representative suits. Both these

concepts aim at taking up cause of a group of people

by one person. In a public interest litigation

of the widest scope that person may or may not

himself be an affected person., However, in a

representative suit the person must be interested

in the litigation himself, i.e. his rights must

also be at stake. In a representative suit,

resources of the group can be combined. It can

result in saving of time, money and energy of

everyone involvsd. The

4
decision of the Court is

binding on all the persons coming under that

class. Both these types of legal devices aim at

providing greater access to justice by

collectivisation. 27

Over the years, from the time Mr.Justice P.N.

37
Bhagawati adorned the Chief Justiceship of the

Supreme Court* of India, public interest litigation

has grown enormously. It has also been misused.

There does not however, seem to be that much

awareness, use or misuse of the representative

suits. Bearing in mind the above situation, I

propose to examine the law relating to

representative/class action suits as a method of

facilitating greater access to justice.

38
Foot Notes of Indian Legal System

(1) Joseph Minattur "Introduction", The Indian

Legal System, the Indian Law Institute, New Delhi,

1978.

(1 A) M.C.Setalvad: The Common Law In India ,

N.M.Tripathi Pvt. Ltd., Second Edition, 1970 ,

The Hamlyn Lectures, 12th Series.

(2) Policy of courts to stand by precedent and

not to disturb settled point': Black's Law

Dictionary, West Publishing Company, St. Paul,

Minnesota, U.S.A., Abrideged 5th Edition ,1989.

(2A) For a detailed discussion of civil law see

next sub-topic.

(3) Ibid foot-note 2.

(4) Text of Art.372 of the Constitution of India.

Continuance in force of existing laws and

t

their adaptation:

372(1) Notwithstanding the repeal by this

Constitution of the enactments referred to in

39
article 395 but subject to the other provisions

of this Constitution, all the law in force in the

territory of India immediately before the

commencement of this Constitution shall continue

in force therein until altered or repealed or

amended by a competent Legislature or other

competent authority. -

(2) For the purpose of bringing the provisions

of any law in force in the territory of India in
accord with the provisions of this Constitution,

the President may by order make such adaptations

1 i

and modifications of such law, whether by way of

repeal or amendment, as may be necessary or

* * .

expedient, and provide that the law shall, as from

such date as may be specified in the ordei, , have

: ; s'
effect subject to the adaptations and modifications

so made, and any such adaptation or modification

shall not be questioned in any court of law.

(3) Nothing in clause (2) shall be deemed

i

(a) to empower the President to make any

adaptation or modification of any law after the

expiration of (three years) from the commencement
of this Constitution; or

(b) to prevent any competent Legislature

40
or other competent authority from repealing or
amending any law adapted or modified by the

President under the said clause.

Explanation I-The expression "Law in force"

in the article shall include a law passed or made

by a Legislature or other competent authority in

the territory of India before the commencement

of this Constitution and not previously referred,

notwithstanding that it or parts of ' it may not

be then in operation either at all or1 in particular

areas.
Explanation II-Any law passed or made by a

legislature or other competent authority in the

territory of India which immediately before the

commencement of this Constitution , had

extra-territorial effect as well as effect in the

territory of India shall, subject to any such

adaptations and modifications as aforesaid, continue

to have such extra- territorial effect.

Explanation Ill-Nothing in this article shall

be construed as continuing any temporary law in

force beyond the date fixed for its expiration

or the date on which it would have expired if this

Constitution had not come into force.

Explanation IV-An Ordinance promulgated by

, 41
the Governor of a Province .under section 88 of

the Government of India Act 1935, and in force

immediately before the commencement of this

Constitution shall, unless withdrawn by the Governor

of the Corresponding State earlier, cease to operate

at the expiration of six weeks from the first

meeting after such commencement of the Legislative

Assembly of that State functioning under cla!use

(1) of article 382, and nothing in this article
shall be construed as continuing any such Ordinance
* i *

in force beyond the said period. '

(5) The Delhi High Court in AIR. 1,975 Delhi 200,

, ; * ,
Para 8 has quoted with approval the following:
1 ! ,i
The relationship between statute law and, common

law has been expressed by Professor W.M.Galdart

as follows "The most fundamental part of our

law is still Common Law ..... The statuttes assume

the existence of the common law; they are the

addenda and errata of the book of the Common Law;

they would have no meaning except by( .reference

to the Common Law." (Elements of English Law, page

9). :

It is well known rule of construction of statutes

that "the legislature does not intend: to make any

42 -
 substantial alteration in the existing law beyond

the immediate scope and the object of the statute"

(Maxwell on Interpretation of Statutes. 12th

Edition, page 116). We have therefore, to look

to the existing common law which surrounds the

statutory provision giving the State Bar Council

the power to elect a Chairman.

, '-V1
(6) It is worthwhile to note that^tljef^Power to

review the legislation is expressly given by our

! Constitution of India. No such power is expressly

i ;
! ' ,
, given by the Constitution of United Statues. It
however, has been assumed by American courts from
i i i' ! ; i
famous decision in Mar bury v/s Medisbri given' by
f * . i l
justice Marshall. i, . ' ,|

, (7) In the United States there is a duel system

I [ 'I ' ' I'
, of courts. The questions relating to Federalj Law
* S
i are decided by the Federal courts and questions
' I

relating to State Law are decided ..by tliei State

' ;j: i
courts. The U.S. Supreme court however,; is the

final appellate court at present consisting of

r * i
1 r
9 Judges sitting enblock and they can take up

matters coming from the Federal as, well as the

* I

State Courts in their appellate jurisdiction.

43
(8) Oliver W. Holmes Jr.,The Common Law Indian

reprint published by Light and Life Publishers,

New Delhi, 1975.

(8A) AIR 1967 S.C. 1943. P.K. Tripathi, "Rule

of Law, Democracy and Frontiers of Judicial

Activism", 17 JILI 17 at 33 (1975). Also See

K.C.Joshi: "Judicial Process:Recent trends", 34

JILI at page 70 (1992). Sathe S.P. remarks: "However

badly crafted and based on faulty reasoning, the

Golakanath judgement contained a seminal thought

that the power of constitutional amendment of the

legislature needed to be curbed." For fuller

, t t

discussion of this aspect of judicial activism

since independence see his article: Legal Activism,

Social Action and Government Lawlessness", Cochin

University Law Review page 361.

(9) See Sathe S.P. "Judicial Process-: Creativity

and Accountability", Corporate Law Review,Vol.

i *

IV. November 1987, page 4. The author points out

I
the following as the constraints on trie judicial

creativity: Doctrine of Stare Decisis and' Precedent,

Resoned Judgements, Rules of Interpretation,

44
Concept of Locus Standi, Creativness of the Bar,

Resourcefulness of the Court.

(10) Supra Foot Note 4.

I
(11) A.C. Banarjee, Constitutional History of India

1977 at Page 314.

(12) Amendment IX to the American Constitution:

The enumeration in the Constitution of certain

right, shall not be construed to deny or disparage

others retained by the people.

Amendment X to the American Constitution;

The powers not delegated to the United States by

the Constitution , nor prohibited by it to the

States, are reserved to the States respectively,

or to the people.

(13) S.P.Sathe Administrative Law, 5th Edition

N.M.Tripathi Pvt. Ltd., Bombay ,1991,Introduction,

Pages 1-24.

(14) Hindu Marriage Act 1955, Hindu Adoption &

Maintenance Act 1956, The Hindu Succession Act

1956, Hindu Minority & Guardianship Act 1956, the

45
Indian Succession Ae, The Muslim Women Protection

of rights Act, etc. are some examples.

/Ls

(15) Art.44 Constitution of India: State shall

endeavour to secure for the citizens Uniform Civil

Code throughout the territory of India.

(16) J.Minatur, "The nature of Malay Customary

Law".

(17) Nani A.Palkhivala,"The Judiciary and the Legal

Profession, Yesterday, Today and Tomorrow," We,

the Nation, The Lost Decades, . UBSPD, 1994.

(18) A.V.Dicey, Introduction, to. the Law of the

Constitution, Chapter-IV, 9th edition, 1952.

(19) Garrett D.Dorsey "Towards a Marxist

Understanding of Law", 1985. David Kairys, The

Politics of Law: A Progressive Critique, 1982.

(20) Jay Folberg, a Professor at Lewis & Clark

Law School in Portland Oregon, U.S.A. and an

official of the Association of Family Concilliation

Courts quoted in Philadelphia Inquirer, 9-14-80

46
P3. M, C.1

(21) Nani A. Palkhiwala "Truth and Service above

all" the Illustrated Weekly of India, October 1,

1978.

(22) Michael J.Sandel "Must Individual rights betray

the Common good? Morality and ithe Liberal Ideal",

New Republic, May 7, 1984. Michael J.Sandel teaches

political philosophy at Harward University, U.S.A.

(23) Art.21 of the Indian Constitution: No person

shall be deprived of his life or personal liberty

except according to the procedure established by

law. This protection is a fundamental individual

right known as due process clause in the western

legal systems.

(24) Robert Hayden "Lawyers and Courts In

Contemporary India" Film Guide to Courts and

Councils: Dispute Settlement In India, South Asian

Area Centre, University of Wisconsin, U.S.A.

(25) Marc Gallenter: Law and Society in Modern

India Edited with an Introduction by Rajiv Dhavan,

47
Oxford University Press, 1989.

(26) Prof.C.G.Raghvan
\ in The Social Dimensions

of Law and Justice In Contemporary - India The

Dynamics of a New Jurisprudence, Problems,

Perspectives and Prospects, by Justice V.R.Krisna

Iyer, AIR Publication, 1979.

(27) A detailed discussion of PIL vis a vis

representative suits is made later in the thesis.

48