Introduction to Indian Legal System

The Doctrines of Liberal Legality; Constitutionalism and the Rule of Law

1. Introduction

Indian legal system is considered as one of the oldest and unique legal system.
Traditionally, Indian society was governed and used to follow the ancient legal
system, which was based on ancient texts and scriptures. Later with the invasion of
various rulers from Central Asia and Europe, it was subjected to transplantation of
legal systems by the invaders and colonisers, which acquired different forms. The
current legal system in India is now practiced in the lines of common law legal
system, which was introduced by the British rulers during the times of their
colonisation and pre Independence. India still follow the British modelled common
law legal system. The basis of the current Indian legal system can be found in its
liberal democratic constitution, which was adopted in 1950. The unique feature of
the Indian legal system is Parliamentary form of governance based on the federal
structure where it follows the fundamental principles of Rules of Law, which
enshrined under its Constitution. The course “Indian Legal System, Legal Methods
and Legal Research” based on the premise, which alluded above and gives a unique
opportunity to know and appreciate the importance of legal system in India. It also
facilitates the students to familiarises themselves with the importance of the legal
system in initial year of their studies in the law school.

2. The Indian Legal System

As discussed, the Ancient Indian Legal System is based on the principles of Hindu
Legal system which was originated from the vedas, smritis such as Yajnavalkya
Narada, Visnu, Manu, Parashar, Vashist, Gautm. These smirits were not laws and they
are the sources of the Hindu legal system in ancient India. These laws were originally
based on the practices of the people, customs, normative practices, traditions and
behaviours. Later, with the advent of colonial invades from central Asia and Eruope,
the Indian Legal System has substantially transformed. The current Indian legal
system is based on the principles of western philosophy of Liberalism. This western
liberal philosophy gave foundation to the emergence of the liberal democratic
constitutionalism. This liberal democratic constitutionalism is important to the
development of the source of political power protection of individual rights and the
separation of powers.

The main objective of this class to trace the origin and development of the modern
Indian legal system with beginning of the colonial rule in India, further, to explore the
essence of the liberal political justification of the State, the idea of principles of Rule
of Law which are foundation of the constitutional democracy in India.

To achieve this objective, it is necessary to appreciate the origin, premises and

development of the western liberal-democratic tradition and the assumptions that
underlie it.

Indian Legal system is very much a part of this tradition; thus, understanding the
wider tradition helps to highlight the role of the law in India and explain some of the
tensions that exist within the Indian legal system.
However, it is important to understand from the outset that the liberal-democratic
legal order is peculiar to western democratic societies. Alternative conceptions of the
law have been presented by theocratic and totalitarian states, and understanding these
differing conceptions helps us to understand the western conception more deeply.

Further, western societies are guilty of a degree of ethnocentricity; there is a certain

assumption that the values and assumptions that underpin our legal order are of
universal validity and need to be nurtured throughout the world.

Generally political theorists distinguish between Theories of the Good and Theories of
the Right.

The Theory of Good – associated with authoritarian or theocratic regimes assumes

that there is an objective of Good or a set of values which are articulated and imposed
from above. The state here exists to promote this good and the values.

There exists a source of values that is independent of individuals; therefore, these

values do not require any independent justification. Examples: Saudi Arabia – Taliban
in Afghanistan, Nazi Germany had its values and used the law to enforce them

However, theory of Natural Law is a Theory of the Good and not always evil. The
belief in human rights and values that transcend positive law these values inherit to
the human being gift from God.

Theory of the Rights, here there is not objective Good than can be imposed and state
cannot dictate a good on individuals. Every individual must be free to choose their
own values, and ultimately those of the state and government should try to protect it
and ensure this.

There is no source of value other than the conscience of the every individual for the
theory of rights.

3. What is Liberalism?

The western legal order has been inspired by the political ideology of liberalism.
Central to this ideology are the ethics of individualism and autonomy, and the
protection of the individual from public (state) power. The main tenets of liberal
philosophy are as follows:

a) A clear demarcation between public and private matters (the public/private

divide);

b) A prioritization of the private over the public, and a consequent restriction on

the public realm in its dealings with private matters;

c) A minimalist conception of public power;

 d) A “contractarian” theory of the state under which the state is a man-made
artifact which receives only limited power and legitimacy by consensual
delegation from the people;

e) A correlation between the obligation of the citizen to obey the law of the state,
and the right of the citizen to disobey in the event that the state oversteps its
proper boundary.

The prime concern of liberals is to maximize individual autonomy, and any legal
system based upon liberalism will therefore be structured to achieve this goal. Thus, a
liberal legal order will construct legal rules to limit state power. Two doctrines in
particular have been developed by liberal legal theorists to accomplish this goal:

a) Liberal constitutionalism;
b) Rule of Law

Liberal Constitutionalism

Liberal constitutionalism represents the use of liberal values to construct the political
structure from which laws are then derived.

Liberal constitutionalists recognize the concept of the state and its power; indeed, the
very rationale for liberalism is that state power exists and needs to be controlled.

Note that liberal constitutionalists do not want to remove state power; they recognize
that such power is necessary and can be deployed legitimately.

However, constitutionalists are fearful of the potential inherent in the power of the
state to destroy liberty, and thus liberal constitutionalists use two legal devices to
restrict the use of state power to its proper sphere: the doctrine of the separation of
powers, and the enforcement of individual rights. The separation of powers gives
voice to the fear felt by liberals of the concentration of power in the state. By
separating the three principal powers of the state, this concentration of power is
broken up.

Further, each branch of the state can act as a check upon the others. However, the
separation of powers is the subject of controversy in jurisprudence, especially in
common law jurisdictions.

If the judicial and legislative functions are distinct, then judges should not be
lawmakers. Yet, arguably judges make and remake the common law – and statute law
and indeed the Constitution – all the time. How can this factual situation be squared
with the separation of powers?

The concept of legally protected individual rights gives practical expression to the
public/private divide. In essence, the concept of rights draws a boundary around the
individual and the state is not permitted to cross this boundary without good cause.
Further, liberal constitutionalism requires that these rights be enforceable against the
state; without such enforceability, rights would be little more than expressions of piety
that could be ignored by the State.

Further, and more controversially, if the state persists in deliberately flouting the
rights of citizens then it has exceeded the limited power delegated to it by the people.
Some liberal theorists argue that at that point the people have a right of revolution
against the state.

But the theory of rights is also controversial in itself; Marxist theorists argue that the
existence of legal rights is simply a device to disguise an unjust order by creating a
façade of justice. Critical Legal Studies theorists argue that the internal logic of rights
is contradictory: how can rights limit the power of the state when they are enforced by
an arm of the state (i.e., the judiciary)? Further, by allowing rights to be decided by
the courts, is not the exercise of state power positively invited?

Rule of Law

Liberal constitutionalism allows the state to exercise its power but requires the state to
respect the rights of individual citizens and prevents the concentration of excessive
power in the hands of any one state body.

The rule of law is a device that seeks to regulate the use of state power even when that
use of power is constitutionally legitimate. In brief, the citizenry must be ruled by an
impartial legal process rather than by the arbitrary whim of people.

Laws enacted by the legislature must conform to certain characteristics in order to be

considered good laws. So, good laws are those that are clear and apply equally and
generally. Laws that do not have these characteristics are not good, and are subject to
legal challenge as an abuse of the legislature’s legitimate power.

4. Liberal Theory and Rule of Law

The basic value of liberalism is the autonomy of man it originated from the Greek
word meaning independence. It is considered as government of self and a minimalist
role for the state and state should not interfere with individual as little as possible and
must ensure provide liberty.

The question raises here – what if individual who do not wish liberty? What about a
man who wishes to sell himself into bondage?

Liberals says no as doing so undermines the fundamental value of liberal state.

Individuals are morally free and capable of choosing their own goals and can choose
between right and wrong.

John Rawls, in his “A theory of justice” elucidates that the rights of the person are
protected by the principles of rule of law. He noted that the “conception of formal
justice” the “regular and impartial administration of public rules” becomes the rule of
law when applied to the legal system.
John Rawls co-relates the rule of law with liberty, he considers that the notion of legal
system and its intimate connection with the precepts definitive of justice as regularity.

A legal system is a coercive order of public rules addressed to rational persons for the
purpose of regulating their conduct and providing framework for social cooperation.

When these rules are just they establish a basis for legitimate expectations, they
constitute grounds upon which persons can rely on one another and rightly object
when their expectations are not fulfilled. If the bases of these claims are unsure, so are
the boundaries of men’s liberties.

Rawls further explains that the “legal order is a system of public rules addressed to
rational persons, we can account for the precepts of justice associated with the rule of
law.

These precepts are those that would be followed by any system of rules which
perfectly embodied the idea of legal system. This is not, of course, to say that existing
laws necessarily satisfy these precepts in all cases.

Rather, these maxims follow from an ideal notion which laws are expected to
approximate, at least for the most part.

If deviations from justice as regularity are too pervasive, a serious question may arise
whether a system of law exists as opposed to collection of particular order designed to
advance the interests of dictator or the ideal of a benevolent despot.

The point of thinking of a legal order as a system of public rules is that it enables us to
derive the precepts associated with the principle of legality.

Moreover, we can say that, other things which are equal, one legal order is more justly
administered than another if it more perfectly fulfils the precepts of the rule of law.

The precept of the rule of law identifies several features of legal systems:

 First, the actions which the rules of law require and forbid should be a kind
which men can reasonably be expected to do and to avoid.
 A system of rules addressed to rational persons to organise their conduct
concerns itself with what they can and cannot do. It must not impose a duty to
do what cannot be done.

 Second, the notion that ought implies can conveys the idea that those who
enact laws and give orders do so in good faith.

 Legislators and judges, and other officials of the system, must believe that the
laws can be obeyed; and they are to assume that any orders given be carried
out.

 Moreover, not only must authorities act in good faith, but their good faith must
be recognised by those subjects to their enactments.
  Finally, this precept expresses the requirement that a legal system should
recognise impossibility of performance as a defense, or at least as mitigating
circumstances. In enforcing rules a legal system cannot regard the inability to
perform as irrelevant.

 It would be an intolerable burden on liberty if the liability to penalties was not

normally limited to actions within our power to do or not to do.

The rule of law also implies the precept that similar cases be treated similarly. People
could not regulate their actions by means of rules it this precept were not allowed.

In any particular case, if the rules are at complicated and call for interpretation, it may
be easy to justify an arbitrary decision. But as the number of cases, increase, plausible
justification for biased judgements become more difficult to construct.

Here the important requirement and rule is that the requirement of consistency hold
the interpretation of all rules and for justifications at all levels.

The rule is that there is no offense without a law (Nulla crimen sine lege), and the
requirements it implies, also follow from the idea of legal system.

This rule demands that the laws be known and expressly promulgated, that their
meaning be clearly defined, that statutes be general both in statement and intent and
not be used as a way of harming particular individuals who may be expressly named
that at least the more severe offenses be strictly construed and that the penal laws
should not be retroactive to the disadvantage of those to whom they apply.

These requirements are implicit in the notion of regulating behaviour by public rules.
For if, say, statutes are not clear in what they enjoin and forbid, the citizen does not
know how he is to behave.

A tyrant might change laws without notice, and punish his subjects accordingly,
because he takes pleasure in seeing how long it takes them to figure out what the new
rules are from observing penalties he inflicted.

But these rules would not be a legal, since they would not serve to organise social
behaviour by providing a basis for legitimate expectations.

There are those rules defining the notion of natural justice, these are guidelines
intended to preserve the integrity of the judicial process.

If laws are directives addressed to rational persons for their guidance, courts must be
concerned to apply and to enforce these rules in an appropriate way.

Thus a legal system must make provisions for conducting orderly trails and hearing; it
must contains rules of evidence that guarantee rational procedures of inquiry.

Where there are variations in these procedures, the rule of law required some form of
due process; that is a process reasonably designed to ascertain the truth, in ways
consistent with the other ends of the legal system, so to whether a violation has taken
place and under what circumstances.

For examples, judges must be independent and impartial, and no man may judge his
own case.

Trails must be fair and open, but not prejudiced by public outcry. The rule of natural
justice is to insure that the legal order will be impartially and regularly maintained.

As John Rawls noted that the conception of formal justice, the regular and impartial
administration of public rules, becomes the rule of law when applied to the legal
system.

He further notes that the citizens of a well-ordered society will normally want the rule
of law maintained and it is reasonable to assume that even in a well ordered society
the coercive powers of government are to some degree necessary for the stability of
social cooperation.

The role of an authorised public interpretation of rules supported by collective

sanctions is precisely to over this instability.

By enforcing a public system of penalties government removed the grounds for

thinking that other are not complying with the rules.

For this reason alone, a coercive sovereign is presumably always necessary, even
though in a well ordered society sanctions are not severe and may never need to be
imposed.

Rather, the existence of effective penal machinery serves as men’s security to one
another.

F.A. Hayek describes that “nothing distinguishes more clearly conditions in a free
country from those in a country under arbitrary government than the observance in the
former of the great principles the Rule of Law.”

The government in all its actions is bound by rules fixed and announced beforehand –
rules which make it possible to foresee with fair certainty now the authority will use
its coercive powers in given circumstances, and to plan one’s individual affairs on the
basis of this knowledge.

Though this ideal can never be perfectly achieved, since legislators as well as those to
whom the administration of the law is entrusted are fallible men, the essential point,
that the discretion left to the executive organs wielding coercive power should be
reduced as much as possible, is clear enough.

While every law restricts individual freedom to some extent by altering the means
which people may use in the pursuit of their aims, under the Rule of Law the
government is prevented from stultifying individual efforts by ad hoc action.
Within the known rules of the game the individual is free to pursue his personal ends
and desires, certain that the powers of government will not be used deliberately to
frustrate his efforts.

5. Democracy and Rule of Law

Democracy comes from a Greek word meaning the rule of the people in combination,
which derives from the form of Government found in Ancient Athens.

 Assumes a right/duty among citizens to participate in political affairs

 In turn assumes the existence of political rights (various political rights which
are existed in modern constitutions such as speak on political issues,
contesting for public offices and universal adult franchise, etc).

Here the source of political power is the people and it basically removes any sense of
the divine rights which were pronounced by various scholars in different times. The
system of democracy permits people to change their rules at pre agreed intervals.

Provides legitimacy for all decisions about the state – as it was agreed by all and
participated equally, and hence we can complain about the system or the rules.

In particular, the belief is that the Democracy provides a justification for the values of
the State

 Process of endorsement by the people – system of popular preferences

 Problems which are encountered is that there is no limitation as such in
overturning the any value with majority (so called 50 percent plus one)

 Therefore, fundamental rights cannot exist – exist only for as long as they are
endorsed. Due to the issues of majority….

 Take the history and its examples, Hitler was elected in democratic manner, all
this Nuremburg Laws on racial exclusion and his dictatorial powers were
democratically passed by the Reichstag and were constitutionally valid.

Liberal Democratic Constitutionalism

In modern liberal democratic constitutional societies there are three interlocking

mechanism to restrain the state’s power:

 Public and private divided – guarantees civil rights from state intrusion –
Ireland – Bill of Rights and ECHR etc.,
 Separation of powers – diffuses power – allows popular participation to select
legislators who make the law – in Ireland wide diffusion of power between the
different organs of the state

 Rule of Law

6. Theory of Rule of Law

As discussed above the political power is enforced over the individual through the law
rather than through a person or institutions. As it was noted by John Rawls, “the
conception of formal justice, the regular and impartial administration of public rules,
becomes the rule of law when applied to the legal system.” The doctrine of rule of law
has been defined and discussed elsewhere that;

 The function of the legislature in a free society under the Rule of Law is to
create and maintain the conditions which will uphold the dignity of man as an
individual.
 This dignity requires not only the recognition of his civil and political rights
but also the establishment of the social economic, educational and cultural
conditions which are essential to the full development of his personality.

If the rule of law is the rule of good law then to explain its nature is to propound a
complete social philosophy. But if so the term lacks any useful function.

The rule of law is a political ideal which a legal system may lack or may possess to a
greater or lesser degree.

It is also to be insisted that the rule of law is just one of the virtues which a legal
system may possess and by which it is to be judged.

It is not to be confused with democracy, justice, equality, human rights of any kind or
respect for persons or for the dignity of man.

A non-democratic legal system based on the denial of human rights, on extensive

poverty, on racial segregation, sexual inequalities, and religious persecution may, in
principle, conform to the requirements of the rule of law better than any of the legal
system of the more enlightened Western democracies.

It does not mean that it will be better than those Western democracies. It will be
immeasurably worse legal system, but it will excel in one respect: in its conformity to
the rule of law.

The basic idea of rule of law means that people should obey law and be ruled by it.
But in political and legal theory it has said that the government shall be ruled by the
law and subject to it.

The ideal of rule of law is often expressed that “government by law and not be men”.
It is said that the rule of law means that all government actions much have
foundations in law, must be authorised by law.

Here to bring the assumptions of Joseph Raz, “the government in the legal sense and
with the conception of the rule of law which applies to government and to law and is
no mere application of the law and order conception.

Rule of law for the lawyers, anything if that meets the conditions of validity laid donw
in the system of rules of recognition or in other rules of the system.
This includes the constitution, parliamentary legislation, ministerial regulations,
policemen’s orders, the regulation of limited companies, conditions imposed in
trading licences.

To the laymen the law consists only of a subclass of these. To him the law is
essentially a set of open, general and relatively stable laws.

The doctrine of the rule of law does not deny that every legal system should consist of
general, open and stable rules and particular laws, an essential tool in the hands of the
executive and judiciary alike.

In general sense, the rule of law has two aspects;

 People should be ruled by law and obey it and

 That the law should be such that people will be able to be guided by it.

Which means the law must be capable of being obeyed. Therefore, if the law is to be
obeyed it must be capable of guiding the behaviour of its subjects.

7. Important principles of Rule of Law

1. All laws should be prospective, open and clear

The law must be open and adequately publicised, and no one can be guided by
retroactive law. If it is to guide people they must be able to find out what it is. The
meaning must be clear, an ambiguous, vague, obscure or imprecise law is likely to
mislead or confuse at least some of those who desire to be guided by it.

2. Law should be relatively stable

They should not be changed too often. If they are frequently changed people will find
it difficult to find out what the law is at any given moment and will be constantly in
fear that the law has been changed since they last learnt what it was.

More important is that people need to know the law not only for short-term decisions
but also for long-term planning.

Three important points are illustrated by this principle:

 First, conformity to the rule of law is often a matter of degree, not only when
the conformity of the legal system as a whole is at stake, but also with respect
to single laws.
 Second, the principles of the rule of law affect primarily the content and form
of the law, but not only them, they also affect the manner of government
beyond what is or can usefully be prescribed by law.

 Third, though the rule of law concerns primarily private citizens as subject to
duties and government agencies in the exercise of their powers, it is also
concerned with the exercise of private powers.
3. The making of particular laws should be guided by open, stable, clear, and general
rules.

It is assumed that the requirement of generality is of the essence of the rule of law.
This notion derives from the literal interpretation of the “rule of law” when law is
read in its lay connotations as being restricted to general, stable, and open law.

It is also reinforced by a belief that the rule of law is particularly relevant to the
protection of equality and that quality is related to the generality of law.

4. The independence of the judiciary must be guaranteed

It is of the essence of municipal legal system that they institute judicial bodies
charged, among other things, with the duty of applying the law to cases brought
before them and whose judgements and conclusions as to the legal merits of those
cases are final.

The rule concerning the independence of the judiciary, the method of appointing
judges, their security of tenure, the way of fixing their salaries and other conditions of
services, are designed to guarantee that they will be free from extraneous pressure and
independent of all authority save that of the law.

5. The principles of natural justice must be observed

Open and fair hearing, absence of bias, and the like are obviously essential for the
correct application of the law and thus, through the very same considerations
mentioned above, to its ability to guide action.

6. The courts should have review powers over the implementation of the principles

This includes review of the both subordinate and parliamentary legislations and of
administrative action, but in itself it is very limited review – merely to ensure
conformity to the rule of law.

7. The courts should be easily accessible

Given the central position of the courts in ensuring the rule of law it is obvious that
their accessibility is of paramount importance.

Long delays, excessive costs, etc., may effectively turn the most enlightened law to a
dead letter and frustrate one’s ability effectively to guide oneself by the law.

8. The discretion of the crime-preventing agencies should not be allowed to pervert

the law

Not only the courts but also the actions of the police and the prosecuting authorities
can subvert the law. The prosecution should not be allowed for ex., to decide not to
prosecute for commission of certain crimes, or for crimes committed by certain
classes of offenders.
8. The Value of Rule of Law

Conformity to the rule of law is a virtue, but only one of the many virtues a legal
system should possess. This makes it all the more important to be clear on the values
which the rule of law does serve.

Another virtue of the rule of law is identified as the protection of individual freedom.
This is right in the sense of freedom in which it is identified with an effective ability
to choose between as many options as possible.

Here are important aspects and ideals of the rule of law, but in practice it is difficult
due various practical problems but still it has to be there in order to govern the system
in frame work.

Therefore, the ideal of the rule of law is difficult to achieve, and society is ruled by a
combination of law and judges. Hence is there a moral obligation to obey the law
under such system. Is this a bad thing? Rule of Law ideal suggests a mechanical
application of the law – do we want such a system? Where is the compassion, mercy
and understanding in such system? Is it better to be judged by human being than by a
computer?

9. Conclusion

As explained in detail above, the Indian Legal system is based on the tradition of
liberal legalism, which promoted the ideals in the constitutions. The liberal legal
constitution facilitates the ideals of Rule of Law, which provides protection of the
rights of the individual within the constitution and upholds the values of democracy.
The modern Indian legal system inherits the system from the British Colonial powers;
most of the laws, which we are practicing today, are mainly formulated based on the
principles of western political and legal theories.