Legal System in India

Hello law knowledge seekers. In this article a brief discussion about Legal system in India is made. 

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What is Legal System?

A legal system encompasses a set of legal principles and norms to protect and promote a secure living to its subjects in a cultured society. It recognizes rights, prescribes duties of people and provides the ways and means of enforcing the same. To achieve this particular objective, the legal system considering the sociological, economic and political conditions in the society designs its own goals and evolves a set of principles/ rules/ laws which help the society to attain its identified goals.

A system connotes a coherent whole. It is animated by a philosophy or ideas which connect its different parts leading to a harmonious working. The corpus of the system is its variable elements. Changes in the laws may result from legislation and judicial decision. But the concepts and methods of the system are its constant elements.

Law and legal system must be pervasive to envelop the whole life of the individual and the state. They cannot, therefore, consist merely of legislation or rules. A legislature or a rule-making authority can never attempt to make such comprehensive code as they will apply to every individual or state activity. Necessarily, the legislation and rules must, therefore, apply only to certain aspects of our social life leaving out large spaces of our life to be governed by the general principles of law or common law.

The relationship of common law and statute law in England:

The most fundamental part of our law is still common law. The statutes assume the existence of the common law; they are the addenda and the errata of the book of the common law; they would have no meaning except by reference to the common law.

How does the law develop into a system? 

Legislation and rules may provide the law for certain individual and social activities. The rest of the life of the society has to be regulated by custom, general principles of right and wrong and of justice, equity and good conscience. These principles are either observed by members of the society in their own good sense or are enforced by judicial decisions. The development of these principles over the centuries by courts forms the present state of common law. Since the lawmaking function of the judges in India is the same or even more comprehensive due to the power of judicial review of legislation exercised only by our judges which is not given to the judges in England, the development of law by judicial decisions on the basis of the common law principles in India follows the same pattern as has been followed in England. When a question arises as to what the law is on a particular point, we turn to legislation or rules which may exist. In their absence, we turn to general principles and act accordingly. These principles are found embodied in judicial decisions and are being created and developed every day by judicial decisions. 

Common Law in India:

The common law, custom and general principles of justice, equity and good conscience which are drawn upon by the courts both in England and India provide the basis and the environment in which statutes are enacted. It is a settled principle of interpretation of statutes that the pre-existing common law and principles of justice, equity and good conscience are not altered by statute law except to the extent of repugnancy between the two.

In spite of the march of statute law in England (as in India) it has been observed that "it is only where constitutional law is concerned, in that small but vital sphere where liberty of person and of speech are guarded that it means the rule of the common law. For here alone has Parliament seen fit to leave the law substantially unaltered and to leave the protection of the freedom of individuals to the operation of the common law."

The same observation would hold good in India in as much as freedom of the individuals is assumed to be the rule of law except insofar as statutes restrict it. Even in England, the sovereignty of Parliament has meant, "the supremacy of the existing law so long as Parliament was fit to leave it unaltered."

It is well known that Parliament identified itself with the cause of the supremacy of the law and did not alter by statute the basic principle that the individual enjoys all the liberties unless restrictions on them are placed by the statutes.

Judicial review of administrative action existed in India even before the Constitution. The law courts could draw upon the common law principles of justice, equity and good conscience and the relevant statutes to correct illegalities in administrative action and give reliefs in suits filed for that purpose. Even after the Constitution when High Courts are empowered to exercise the power of judicial review of administrative action under article 226 of the Constitution, these reliefs can still be obtained by way of suits. This is sufficient to show that the Constitution was not to wipe out the pre-existing law which was not inconsistent with the Constitution. This is confirmed by article 372 (1).

This much of common law is in force in India as recognised by article 372 (1) of the Constitution. A nine-judge Bench of the Supreme Court had this to say about the common law in India: It is well-known that the common law of England was applied as such in the original sides of the High Courts of Calcutta, Bombay and Madras, and that in the mofussil courts the principles embodied in the common law were invoked in appropriate cases on the ground of justice, equity and good conscience. It has been held by this court that the said expression 'law in force' includes not only enactments of the Indian legislatures but also the common law of the land which was being administered by the Courts in India.

Conclusion:

A legal system considering the sociological, economic and political conditions int he society designs its own goals and evolves a set of principles, rules, laws which help the society to attain its identified goals. In India the most fundamental part of legal system is based on common law. Judges in India are having right to judicial review hence they are doing a comprehensive task of lawmaking. Constitution of India guarantees the principles of common law such as justice, equity and good conscience.

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