The Legal System in India As per the holy Bible in its old testament after creation of universe and the earth in seven days the God created Adam and Eve and directed them not the take the fruit (an apple) in the garden of God but they accordingly disobeyed the commend of the God at the instance of the satan and ate the apple as a result of which they both became the sinner and the God punished both of them. This is the inference of instant of first law of divine or the law of God on this earth and also the instant of breach of same which was accordingly disbursed with the sanction. After the existence of the humen beings on this earth or after the begining of human civilization in the same the necessity and the requirement of law was felt. Thenafter, after the evolution of the first political institution i.e the state as per the “social contract theory” propounded by J.J Rousseau and after the formal expression of the then people and surrendering their rights upon the “General will” the law or laws of that particular state or that particular civil society took its legitimate form. After the barter system of the commodity with respect to the economic transactions of the society and after the social devision of labour or the social division of profession/ occupation the multiferious aspects and the functions of law in the state/society was seen and as and when the state took its responsibility towards its citizen and it adopted multiferious activities for the welfare of its citizens the varacity and the number of the law of the land was also increased. With the development of the civilization and with the advancement In the modern state system the state has to dischare its multiferious functions as per the directions of the supreme law of the land i.e the constitution and also as it being the responsive institution towards the over all developments of its people and also being involved in so many social, economical, political, educational etc. transactions in its both international and municipal level the numbers of laws of the land are also various and multiferious covering the different feilds. Before my humble discussions with my readers with regards to the Indian Legal System I hereby want to discuss little more about the meaning of law, its definition, kinds, sources, nature, scope and characteristics and its relations with others social and natural ( I mean physical) sciences, process of making it and its mode of operations. The law is also being the one of the branch of social sciences that branch of study is known as “Jurisprudence”. The word jurisprudence is derived from a Latin word “jurisprudentia” whose literal meaning is the science of law or the knowledge or skills in law. The different scholars of law defined the law in their own perciptions and their experiences. According to the positivist school of thought and in the case of Hans Kelson he defined the law as a norm, consisted of different norms and each norm acquires its legal validity from other norm and ultimately based upon one “Grundnorm” and acquires the validity from same. According to John Austin who is also the positivist defines the law as a commend of the sovereign and disobedience of same is backed by the sanction. Furthermore Salmond of the same school defined the law as a body of rules framed by the state and administered by the court of law. According to the sociological school of thought and especially according to Roscoe Pound the law is like an engine and in the similar way like an engine works in a factory in the similar manner the law should operate in the society ( I mean in state). According to the naturalist school of thought law is based on the reason, goodsense, morality and equity. In the opinions of Historical scholars the law is made in the evolutionary process. The Realist thinkers opine that the law is actually made by the judges as because every law is administered by the court of law hence actually it is the judges who deal and execute the law. To that effect I have some humble opinion with regards to the definition of law that it is a formal expression of an authority in most of the cases in the conventional nature which regulates the affairs of state and individuals and the individuals inter se both in the international and municipal level. Of course it is a body of rules, either there is somebodys right or others duty or to be more specific the liability/obligation. The purpose of law must be for the benefits of the people and it should regulate the society and the individuals.The various jurists or the scholars of law divided the law in different prespectives and angles having its nature and applications viz. International and municipal laws, substantial and procedural law, civil and criminal law, civil and martial law, law of person and the law of property, positive and negative law, law rights conferring and the duties imposing etc. In the context of legal system in India its sourcces are the customary rituals as observed and practiced by the individuals or the religious community , legislation or the enactment of parliament, the state legislatures and the other constitutional or the statutory bodies having the powers of sub-ordinate legislations and the judicial decisions of the privy council before independence, the supreme court and the high courts of respective states. The relations of the law with the other social sciences is very wide as the law operates in the society and regulates the society its relationship with other social sciences like sociology , psychology, political sciences, history, anthropology, philosophy and ethics are very wide. Even the law has very close and wide relationship with the natural or physical sciences in the modern day world as because each and every scientific experiments, inventions and discoveries must be accorded and sanctioned by law and legal authorities. Furthermore all the scientific institutions are controlled and regulated by law and legal authorities. Hence the law has very wide and tremendious relationship with the others social and physical sciences. Now I hereby want to draw the kind attention of my facebook friends with regards to the legal system in India. The present developed legal system in India gives its obedience and goes its legacy and foundations to the anceint legal systems in India. The customary sources of law in India is founded and based upon the ancient laws likewise shruties, smrities and others religious philosophies and Upanishads. In ancient India there was a very good and perfect governance and had the political units like shaba and samities during vadic period. In fact that was the house of the peoples representative and worked and performed in democratic manner like the democratic system of governance prevelant in the present day world. Though the words of the king was the law but the king used to administer the justice with the principle based upon the equity, justice and good conscience. In fact the customary laws was mostly popular in that time. In the later vadic period also especially during the Mourya reign and in Gupta period the great Ashoka administered the justice basing upon his “Dhamma” and pronounced the several moral codes for the administration of both the governance and individual affairs. The Gupta period is known for golden era in the history of India not only for the art, artitecture and literature but also for the administration of justice and for its efficient legal system. Thenafter after the advent of Mohammedan in India and after the accession of Muhammed Ghori over it and from the Das dynasty to the Mughal the legal system in India and also in the judicial system there was prevelance of Muslim customary laws based upon the holy Quaran and other teachings of prophet Mohammed over the then prevalent Hindu customary laws. The Quazi would be the presiding officer of the then adalat (unlike the present developed court system and infrastucture) and he would administer justice basing upon the principle of equity, justice and good conscience. To take bribe was an offence both in the law and morality. The modern legal system in India starts from the establishment of East India company and the Queens pronouncement of Charter Act of 1600. Right from the begining of East India company in India and the pronouncement of the Charter Act of 1600 by Her Majisty the Queen Elizabeth the law making process in India started and the law took its codified form. From the imposition of the Charter Act of 1600 and imparting the legitimacy over the trade affairs of the East India Company by the British Parliament over the colonial India and till the drafting of the present constitution by the constituent assembly in the year 1949 there were several pronouncement and enactments drafted by the British Parliament for the political administration including others viz. The Regulation Law and the Charter Act of 1813, The Charter Act of 1833, The Indian Councils Act, 1861, The Indian Councils Act, 1892, The Indian Councils Act, 1909, The Government of India Act, 1919 and the Government of India Act, 1935 etc. After independence of India for the first time the supreme law of the land i.e the Constitution of India was drafted by the constituent assembly chaired by Dr. B.R Ambedkar and which was adopted by the people of India on and from 26th day of November 1949. The constitution of India is the largest written constitution in the world. Originally there were 22 parts, 8 schedules and 395 Articles now it has 25 parts, 12 schedules and more then 440 Articles. More then 70% of the provisions of the present constitution have been adopted from the Government of India Act 1935, the principles of fundamental rights and its provisions from the American Bills of rights and from the charter of Universal Declaration of Human Rights 1948, the parliamentary system of government from the Britain , the provisions of Directives Principles of State Policy from the constitution of Ireland, the emergency provisions from the constitution of Germany, the provisions relating to fundamental duties from the constitution of Russia and the provisions relating to the freedom of trade commerce and intercourse from the constitution of Australia etc. With regard to the law making powers of the parliament and the legislatures of the state it has been clearly laid down the provisions under Article 246 read with the seventh schedule of the constitution. The seventh schedule of the constitution provides the jurisdiction to the parliament and the legislatures of the states on which they can make the laws. There are three lists in the seventh schedule viz. List I i.e Union List, list II State List and the List III Concurrent List. There are at present 100 entries in the union list in which the parliament can exclusively make laws, there are at present 61 entries in the state list wherein the legislature of the state can exclusively make laws and there are at present 52 entries in the concurrent list wherein both the parlement and the legislature of the state can make the laws but in the case of the conflict between the law made by the parliament and the legislature of the state the law made by the parliament shall prevail. Hence the provisions contained in the enactment itself may be executable or there in every enactment passed by the parliament or by the state legislature some powers will be vested to the government by the particular section to make rules and being empowered by the same the respective government shall make rules and in the similar manner that whole part of the rules may also be executable or under that particular rules for the purpose of the execution of the same to meet the particular purpose of the enactment the concern ministry or the department shall issue notification and the same shall be executed by the sub-ordinate authorities of that particular department hence in that manner the purpose behind the making of the laws or the enactment of the same by the parliament or the state legislature shall be fulfilled. One thing here I want to high light the point that the parliament or the legislature of the state, the government, ministry, department or any other sub-ordinate authority shall not make any laws, rules, orders, by-laws or the notifications inconsistent with the provisions of the constitution and in case of so there will always be room for the judicial review of the same. An efficient legal system is the sine qua non of every modern civilized society. For the good governance of the same an effiicent legal system is highly solicited. In that regard the renown English political philosopher J.S Mill once said that the prosperity of a state or the governance is known or observed from the maintainability of law and order system of that particular state or the governance how it is actually and efficiently maintained. In the similar way the law and order system of the community also being the part and parcell of the legal system here also this things applies. In the conclusion of my writing what I would like to say and share with my facebook friends is that though there are hundreds of enactments by the parliament and thousands by the legislatures of the different states every year in their different fields and jurisdictions but due to the inefficient application and lack of proper execution of the same the real purpose and the justice as has been contained in the preamble of the constitution is far from reality. Lastly I hereby would like to request to everybody that for the better administration and for the prosperity of the country all those who are concerned with the legal machinary like the legislature, government and citizens should think and act in positive manner then only the purposes aspired by the founding fathers of the constitution shall meet in its real sense and we can say our country India as “Mera Bharat Mahan”. Soliciting your kind suggestions...............! Jai Hind......! Dated: 21.01.2014. Place: Diamond Harbour, Kolkatta.
Posted on: Tue, 21 Jan 2014 08:27:50 +0000
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