The Law and the Legal System

The Law and the legal system are very important in any civilization. In modern times, no one can imagine a
society without law and a legal system.
Law can be described as a system of rules and regulations which a country or society recognizes as binding
on its citizens, which the authorities may enforce, and violation of which attracts punitive action.
The Principle of Natural Justice - The concept of natural justice is not provided in Indian constitution but it is
considered as necessary element for the administration of justice. Natural justice is a concept of common law
which has its origin in “jus natural” which means law of nature. Natural justice means natural sense of what is
right or wrong. Natural justice is not justice found in nature; it is a collection of concepts which must be
naturally associated with justice, whether these concepts are incorporated in law or not. Natural justice is
concerned with 2 primary rules. These are:
1. Nemo Judex In Causa Sua (rule against bias).
2. Audi Alteram Partem (rule of fair hearing).
1. Nemo Judex In Causa Sua - Rule against bias. It is the first principle of natural
justice which says no man shall be judge in his own cause or a deciding authority
must be impartial and neutral while deciding any case. Thus the principle signify that
in a circumstances where a judge or deciding authority is suspected to be bias an
partial then he/she shall be disqualify for determining any case before them. It
formulate that justice should not only be done but seen to be done.
2. Audi Alteram Partem - Rule of fair hearing. This is the second most fundamental
rule of natural justice that says no one should be condemned unheard. In a
circumstances where a person against whom any action is sought to be taken and his
right or interest is being affected, shall be given an equal opportunity of being heard.
 Sources of Law
Sources of Law
The term law is very diverse in nature. It is essential to have an effective legal system for the orderly
function of social life and the existence of mankind. It is very important to understand that the law of
every land is derived from the sources so one has to know what are the sources of law before getting
into any concept of law. India derives its laws from a variety of sources and they are as follows:
1. Legislation as one of the sources of law -
The term ‘Legislation’ is derived from the Latin words ‘Legis’ meaning regulation and ‘latum’ which
means making. The legislation is considered as a primary source of law in India, legislation has a wide
ambit and it is used to regulate, authorize, to enable, to provide funds, to prescribe, to sanction, grant,
declare or to restrict. The legislature is framed by the parliament in the form of new acts, new laws,
repeal and amendment of old laws. The procedure for this is prescribed in the constitution of India.
2. Customs as one of the other sources of law-
Customs is an established mode of social behaviour within a community. It is one of the main and
oldest sources of law in India. According to Roscoe Pound, customary regulations comprises:
∙ Law formulated by customs of famous motion.
∙ Law formulated through judicial choice.
∙ Law formulated with the aid of doctrinal writings and clinical discussions for legal standards.
3. Judicial Precedents is another one of the most important sources of law in India-
Judicial Precedents lays on the doctrine ‘stare decisis’, it simply means adhering and relying on
earlier decisions made by the courts; i.e., for instance if high court decides on a particular case and a
similar situation comes to the lower court, the lower court will treat the case alike and pass the
judgement same as done by the high court. This is because the high court has set a precedent for the
lower court and the lower court are bound to follow it.
4. Justice, Equity and Good Conscience -
This principle is applied only in cases where the judges feel that the law seems to be inadequate or out of date
or unjust. In such cases the judges make decisions based on equity, good conscience, fairness and justice using
their common-sense.
5. Conventional Law - International Treaties/Agreements /Conventions -
With the emergence of globalisation, there was an increased need for world countries to interact with one
another, this means that there is a requirement for world countries to be bound by a single set of laws. Such
laws are made by the way of treaties, agreements, etc., and these are harmonized by the United Nations.
Countries who are members of the United Nations have to accept such rules or norms laid down by the
organization, and abide by such rules and also such members also have to frame laws in conformity with such
rules. And hence International conventions have an important role in framing new laws or making amendments
to existing laws.
All these sources play a very important role in different changes and decisions made for justice.
 Types of Law
There are various kinds of laws in India. These laws are interconnected with each other and form a
hybrid legal system. Indian legal system consists of civil law, common law, criminal law along with
customary or religious laws regulating personal laws of followers of each religion. However, laws in
India can be broadly categorized into four categories: Common Law, Criminal Law, Civil Law and
Statutory Law.
1. Common Law - Common Law originated in England and came to India when East India
Company came to the country. As the name suggests, it is common to all. The Common Law is also
known as judicial precedent or judge-made law or case law. So, it is a body of law that derives its
origin from judicial decisions of the cases decided by the courts. In the UK, when a case was brought
up in the court of law and the decision was given by the judge then that decision was taken as a
precedent for future cases. Article 141 of the Constitution of India states that “the law declared by the
Supreme Court shall be binding on all courts within the territory of India.” Hence, it can be said that
the Indian legal system has a wide application of Common Law.
2. Criminal Law - Criminal law is a body of rules that defines various acts prohibited by the State because they harm
and threaten public safety, called “offences” and provides punishment for committing such offences. These acts are
considered as offences against society as a whole and not just an individual. In India, Criminal law is basically dealt by,
the Indian Penal Code, 1860; Code of Criminal Procedure, 1973; and the Indian Evidence Act, 1872.
3. Civil Law - The Civil Law consists of a body of rules which provides procedures, and judicial precedents to help in
resolving the various non-criminal disputes. These disputes are either between individuals or organization. The objective
of Civil Law is to resolve dispute and disagreements between individuals by providing compensation to the aggrieved.
Civil law emphasizes more on dispute resolution than punishment. Civil law can be further subdivided into four
categories: Law of Torts, Family Law, Contract Law and Property Law.
a. Law of Torts - A tort is a civil wrong, done by one person or to another, which results in injury or property damage
and monetary compensation is given to the injured party. There are three categories of torts: negligence, intentional tort,
and strict liability.
b. Family Law - Family law is the branch of civil law that deals with marriage, divorce, child custody,
adoption, etc and any other issues and disputes of families. Different religions have their own personal laws
in this regard, for example, Hindu law, Muslim law, Christian law, Parsi law etc. The cases relating to this
law is dealt with by the family courts and not civil courts.
c. Contract Law - Contract Law in India is provided under The Indian Contract Act, 1872 which deals with
all kinds of contract, oral or written. The Indian Contract Act, 1872 contains provisions related to the
validity of a contract, its discharge and provides penalties for breach of the contract. In other words, contract
law is the branch of civil law that deals with agreements between two or more parties and when one party
violates any of the terms and conditions of the contract, it is known as “breach of contract” a civil wrong.
d. Property Law - Property Law is the branch of civil law that deals with all kinds of property, personal
property or real estate/property, tangible or intangible, movable or immovable. Personal property is a class
of property that can include any asset other than real estate. Personal property basically consists of movable
property like vehicles, furniture, jewellery etc. This is tangible in nature. Intangible, on the other hand,
includes intellectual property like copyright, patent etc. and bonds, stocks etc.
4. Statutory Law - Statutory law is also known as legislative law or national law or
municipal law. It is made by the government (national and state legislature) to
regulate the conduct of its people. Legislation can make law on its own to counter
any present or future problems. The legislation does not need any case to be brought
in the court of law to make a law and set precedent. The statutory law comes into
existence by codification and a process is followed for it to become a law. First, it is
proposed as a bill in the legislation, which then, if passed, gets signed by the
executive (Governor in the case of state and President in the case of the country) and
becomes an Act. For example, the Information Technology Act, 2000, Motor
Vehicles Act, 1988 etc.
 Contents

✔ The Court System In India

✔ District Court of India
✔ District Consumer Forum
✔ Tribunals
 The Court System in India
The Judiciary is a system of courts which interpret and apply the law. The role of the courts is to decide cases by
determining the relevant facts and the relevant law. The Indian Judiciary administers a common law system in
which customs, securities and legislation, all codify the law of the land. The Judicial system of India is classified
into different levels.
 District Courts in India
The District Courts of India are the local district courts of the State governments in India for every
district or for one or more districts together taking into account the number of cases, population
distribution in the district. These Courts administer justice in India at a district level. The highest court in
each district is that of the District and Session Judge.
District and Sessions Judge is the principal court of original civil jurisdiction besides the High Court of
the State and which derives its jurisdiction in civil matters primarily from the code of civil procedure. The
district court is also a court of Sessions when it exercises its jurisdiction on criminal matters under the
Code of Criminal procedure. The district court is presided over by one District Judge appointed by the
state Governor with on the advice of state chief justice.
In addition to the district judge there may be a number of Additional District Judges and Assistant District
Judges depending on the workload. The Additional District Judge and the court presided have equivalent
jurisdiction as the District Judge and his district court.
 District Consumer Forum
Consumer redressal forum/courts are institutions that hear the grievance of the consumer of products
or services of complaints/firms/ sellers/ shops regarding the alleged mistake, unsatisfactory service for
repair and maintenance against guarantees/warranties given, selling of defective products, accidents
and damages caused by selling of unsafe products, and arrange for redressal of consumers grievance
after finding out the truth. The act also provides for establishment of consumer protection councils at
the union, state and district level whose main objectives are to promote and protect the rights of
consumer, redressal of consumer grievance and promotion of standards of goods and services.

Dispute Settlement Three Tier Mechanism: The Consumer Protection Act provides for three-tier
quasi-judicial Consumer disputes redressal machinery at the National, State and District levels, for
expeditious and inexpensive settlement of Consumer disputes it includes 1. National Consumer
Disputes Redressal Commission (NCDRC) 2. State Consumer Disputes Redressal Commission 3.
District Forum.
A Consumer Dispute Redressal Forum also known as the “District Forum” established by the State
Government in each District of the State by notification. Provided that the State Government may, if
it deems fit, establish more than one District Forum in a District.
A District Consumer Forum can hear cases for any company that operates an office or a branch in the
district. The law provides that the District Consumer Disputes Redressal Forum has the same powers
as a civil court under Code of Civil Procedure 1908. The District Consumer Forum can order the
company to take the following actions once it hears the complaint and decides that the company is at
fault:
• Correct deficiencies in the product to what they claim.
• Repair defect free of charges.
• Replace product with similar or superior product.
• Issue a full refund of the price.
• Pay compensation for damages / costs / inconveniences.
• Discontinue or not repeat any unfair trade practice or the restrictive trade practice.
 Tribunals
Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving
administrative or tax-related disputes. It performs a number of functions like adjudicating disputes,
determining rights between contesting parties, making an administrative decision, reviewing
an existing administrative decision.
▪ The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the
Classical Roman Republic’.
o Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the monarchy
and the republic with the function of protecting the citizen from arbitrary action by the
aristocrat magistrates.
▪ A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or
to determine claims or disputes – whether or not it is called a tribunal in its title.
Need of Tribunal
▪ To overcome the situation that arose due to the pendency of cases in various Courts, domestic
tribunals and other Tribunals have been established under different Statutes, hereinafter referred
to as the Tribunals.
▪ The Tribunals were set up to reduce the workload of courts, to expedite decisions and
to provide a forum which would be manned by lawyers and experts in the areas falling under
the jurisdiction of the Tribunal.
▪ They hear disputes related to the environment, armed forces, tax and administrative issues.

Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution
by 42nd Amendment Act, 1976.
o Article 323-A deals with Administrative Tribunals.
o Article 323-B deals with tribunals for other matters.
Tribunals in India
Administrative Tribunals
▪ Administrative Tribunals was set-up by an act of Parliament, Administrative Tribunals Act,
1985. It owes its origin to Article 323 A of the Constitution.
o It adjudicates disputes and complaints with respect to recruitment and conditions of
service of persons appointed to the public service and posts in connection with the
affairs of the Union and the States.
▪ The Administrative Tribunals Act, 1985 provides for three types of tribunals:
o The Central Government establishes an administrative tribunal called the Central
Administrative Tribunal (CAT).
o The Central Government may, upon receipt of a request in this behalf from any State
Government, establish an administrative tribunal for such State employees.
 o Two or more States might ask for a joint tribunal, which is called the Joint
Administrative Tribunal (JAT), which exercises powers of the administrative tribunals
for such States.

▪ There are tribunals for settling various administrative and tax-related disputes,

including Central Administrative Tribunal (CAT), Income Tax Appellate

Tribunal (ITAT), Customs, Excise and Service Tax Appellate Tribunal
(CESTAT), Competition Appellate Tribunal (COMPAT) and Securities Appellate
Tribunal (SAT), among others.
Central Administrative Tribunal
▪ It has jurisdiction to deal with service matters pertaining to the Central Government employees
or of any Union Territory, or local or other government under the control of the Government of
India.
o The CAT was set-up on 1 November 1985.
o It has 17 regular benches, 15 of which operate at the principal seats of High Courts and the
remaining two at Jaipur and Lucknow.
o The tribunal consists of a Chairman, Vice-Chairman and Members. The Members are
drawn, both from judicial as well as administrative streams so as to give the Tribunal the
benefit of expertise both in legal and administrative spheres.
State Administrative Tribunal
▪ Article 323 B empowers the state legislatures to set up tribunals for various matters like levy,
assessment, collection and enforcement of any of the tax matters connected with land reforms
covered by Article 31A.
Water Disputes Tribunal
▪ The Parliament has enacted Inter-State River Water Disputes (ISRWD) Act, 1956 have formed
various Water Disputes Tribunal for adjudication of disputes relating to waters of inter-State rivers and river
valleys thereof.
Armed Forces Tribunal (AFT)
▪ It is a military tribunal in India. It was established under the Armed Forces Tribunal Act, 2007.
▪ It has provided the power for the adjudication of disputes and complaints with respect to commission,
appointments, enrolments and conditions of service in respect of persons subject to the Army Act, 1950, The
Navy Act, 1957 and the Air Force Act, 1950.
▪ Besides the Principal Bench in New Delhi, AFT has Regional Benches at Chandigarh, Lucknow, Kolkata,
Guwahati, Chennai, Kochi, Mumbai and Jaipur.

o Each Bench comprises of a Judicial Member and an Administrative Member.

▪ The Judicial Members are retired High Court Judges and Administrative Members are retired
Members of the Armed Forces who have held the rank of Major General/ equivalent or above for a period
of three years or more.
National Green Tribunal (NGT)
▪ The National Environment Tribunal Act, 1995 and National Environment Appellate
Authority Act, 1997 were found to be inadequate giving rise to demand for an institution to deal
with environmental cases more efficiently and effectively.
o As a result, NGT was formed as a special fast-track, comprising of judges and environment
experts to ensure expeditious disposal of cases.
▪ The National Green Tribunal was established in 2010 under the National Green Tribunal Act
2010.
▪ It was setup for effective and expeditious disposal of cases relating to environmental
protection and conservation of forests and other natural resources.
▪ The Tribunal is mandated to make and endeavour for disposal of applications or appeals
finally within 6 months of filing of the same.
▪ New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and
Chennai shall be the other four places of sitting of the Tribunal.
 Contents

✔ High Courts
✔ Supreme Court of India
 High Courts in India
The highest judicial court in a state is the High Court.
It is termed as the second-highest in the country.
Currently, India has 25 High Courts established in different states of the country.
Historical Background - On the recommendation of the Law Commission (1858), the Parliament passed the Indian High
Courts Act, 1861 which suggested the establishment of High Courts in place of Supreme Court in three Presidencies:
Calcutta, Madras and Bombay. The Charter of High Court of Calcutta was ordered in May 1862 and that of Madras and
Bombay were order in June 1862. Thereby, making the Calcutta High Court the first High Court of the country.
The reason for the implementation of this act was the need for a separate judiciary body for different states. The British
Government, therefore, decided to abolish the then-existing Supreme Court and Sadar Adalat and replaced it with High
Court.
Certain rules and eligibility criteria were set for the appointment of a Judge in any High Court and later after independence
as per Article 214 of the Indian Constitution, it was declared that every Indian State must have their own High Court.
High Court Jurisdiction
The jurisdictions of a High Court are as mentioned below:
∙ Original Jurisdiction – In such kind of cases the applicant can directly go to the High Court and
does not require to raise an appeal. It is mostly applicable for cases related to the State Legislative
Assembly, marriages, enforcement of fundamental rights and transfer cases from other courts.
∙ Power of Superintendence – Under this, the High Court holds the right to order its subordinate
offices and courts the way of maintaining records, prescribe rules for holding proceedings in the
court.
∙ Court of Record – It involves recording the judgments, proceedings and acts of high courts for
perpetual memory. These records cannot be further questioned in any court. It has the power to
punish for contempt of itself.
∙ Appellate Jurisdiction – This is for cases where people have risen a complaint about a review of
the judgement given by the district level or subordinate court of that territory. This power is further
divided into two categories.
 Supreme Court In India
▪ The Supreme Court of India is the highest judicial court and the final court of appeal under
the Constitution of India, the highest constitutional court, with the power of judicial review.
Brief History of the Supreme Court of India
▪ The Regulating Act of 1773 established the Supreme Court at Calcutta, with full power &
authority.
▪ It was established to hear and determine all complaints for any crimes in Bengal, Bihar and
Orissa.
▪ The Supreme Courts at Madras and Bombay were established by King George – III in 1800
and 1823 respectively.
▪ The India High Courts Act 1861 created High Courts for various provinces and abolished
Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency
towns.
▪ These High Courts had the distinction of being the highest Courts for all cases till the creation
of Federal Court of India under the Government of India Act 1935. The Federal Court had
jurisdiction to solve disputes between provinces and federal states and hear appeal against
Judgements from High Courts.
▪ After India attained independence in 1947, the Constitution of India came into being on 26
January 1950. The Supreme Court of India also came into existence and its first sitting was
held on 28 January 1950.
▪ The law declared by the Supreme Court is binding on all Courts within the territory of India.
 Contents

✔ Alternative Dispute Redressal (ADR) System

✔ Arbitration
 Alternative Dispute Redressal (ADR) System
Introduction
With the steep growth in the number of laws and the number of cases, the Court system is under great pressure. In
order to reduce the heavy demand on Court time, efforts need to be made to resolve the disputes by resorting to
Alternative Dispute Resolution Methods before they enter the portals of the court.
Alternative Dispute Resolution (ADR) is the procedure for settling disputes without litigation.
The Arbitration, Mediation, Negotiation and Conciliation are tools of Alternative Dispute Redressal (ADR) System.
Arbitration - Arbitration is a process similar to informal trial in which a neutral third party or parties render a
decision based on the merits of the case. In the Indian context the scope of the rules for the arbitration process are set
out broadly by the provisions of the Arbitration and Conciliation Act, 1998. The parties may agree to have the
decision be binding or non-binding.
Mediation - A collaborative process where a mediator works with the parties to come to a mutually agreeable
solution. It is usually non-binding.
Conciliation - Conciliation is a less formal form of arbitration. This process does not require an existence of
any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred
but two or three are also allowed. Parties may submit statements to the conciliator describing the general nature
of the dispute and the points at issue. The conciliator may request further details, may ask to meet the parties,
or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of
the dispute to the conciliator.
When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and
send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and
binding on both.
Negotiation - Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of
action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is
the primary method of alternative dispute resolution.
Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among
nations and in personal situations such as marriage, divorce, parenting, and everyday life. The study of the
subject is called negotiation theory. Those who work in negotiation professionally are called negotiators.
Arbitration (Procedure)
The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the
emergence of the dispute. Agreement must be in writing. The contract, regarding which the dispute exists, must either contain
an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can
approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can
challenge the appointment of an arbitrator - reasonable doubt in the impartiality of the arbitrator and the lack of proper
qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or panels of arbitrators so appointed
constitute the Arbitration Tribunal.
There is very little scope for judicial intervention in the arbitration process. If a party wants to challenge the jurisdiction of the
arbitration tribunal, it can do before the tribunal itself. If the tribunal rejects the request, there is little the party can do accept to
approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the
principal civil court of original jurisdiction for setting aside the award. Once the period for filing an appeal for setting aside an
award is over, or if such an appeal is rejected, the award is binding on the parties.
 Advantages
∙ Arbitration promises privacy. In a civil court, the proceedings are held in public.
∙ Arbitration provides liberty to choose an arbitrator, who can be a specialist in the subject matter of the dispute.
Thus, arbitrators who are sector specialists can be selected who resolve the dispute fairly and expeditiously.
∙ The venue of arbitration can be a place convenient to both the parties. Likewise the parties can choose a language
of their choice.
∙ The rules governing arbitration proceedings can be defined mutually by both the parties.
∙ A court case is a costly affair. The claimant has to pay advocates, court fees, process fees and other incidental
expenses. In arbitration, the expenses are less and many times the parties themselves argue their cases.
Arbitration involves few procedural steps and no court fees.
∙ Arbitration is faster and can be expedited. A court has to follow a systematic procedure, which takes an
abnormally long time to dispose off a case.

Arbitration Allowed – Partnership, All Civil Matters, Construction Project, Insurance, Time Based Debts.
Arbitration Not Allowed – Criminal Matters, Industrial Dispute, Guardianship.
THANK
YOU…