Basic Legal System in India
Synopsis
- Introduction
- Judicial
- Quasi-Judicial
- All India Services
- State Police Services
- Cognizable and Non Cognizable
- Civil Nature
- Chargesheet
- Mistake of Fact
- Arrest and Memorandum
- Preventive Arrest
- Legal Notice
- Ex Parte
- Law of India
- Law of Writ
- Law of Bail
- Laws of Rent
- Law of Insurance
- Law of Divorce
- Law of Property
- Property Inheritance
- Conclusion
- Reference
Points to Remember
*I have endeavoured to summarise India's legal system without delving into the many sections and subsections.
*The content is subject to change based on updates and upgrades to the legal system.
*It is important to note that each case is unique, shaped by circumstantial evidence, the actions of the people involved, and the interpretations and judgments of the authorities.
*For more information, please conduct additional internet research or contact your advocate.
Introduction
Even though India attained independence on August 15, 1947, the British Government of India Act (1935) remained in effect until 1950. India required a new constitution to guide the country independently after the British left. Following this need, the Constituent Assembly of India established a Drafting Committee headed by Dr. Ambedkar to structure the Indian Constitution on August 29, 1947.
India is a Union of States governed by a parliamentary system as a Sovereign Socialist Secular Democratic Republic. On November 26, 1949, the Constituent Assembly of India enacted the Constitution of India, authored by Dr. Ambedkar, which went into effect on January 26, 1950, as the supreme law governing the Republic. The Indian Constitution, the world's longest constitutional legislation, lays forth everything, including the "rights, duties, customs, and powers of the Government of India and its inhabitants.” For example, the Reserve Bank, Federalism, Commonwealth, Secularism, Judiciary, Democracy, Provincial Autonomy, and Fundamental Rights are all covered by the Indian Constitution.
Judicial
The Indian judicial system is based on mixed law, namely parliamentary legislation, legal precedents, religious, and customary standards. The judiciary guarantees the supremacy and rule of law. It has the power to interpret the law but not to create it. However, the judiciary can establish guidelines and norms for the Executive to follow, ensuring the maintenance of people's fundamental rights. By enforcing the laws, the judiciary settles conflicts and ensures justice. In other words, judges shape the Indian judicial system through their decisions, orders, and judgments.
At the national level, the Supreme Court of India is the country's highest court, with the Chief Justice of India as the top authority. At the state level, there is the High Court, headed by the Chief Justice of the State. The District Court serves as the civil court for a district, while the Sessions Court handles criminal cases. Magistrates preside over Sub Courts. The District Court has appellate authority over all Sub Courts in the district, covering both civil and criminal cases. Specialised tribunals handle claims related to service, tax, consumer, and labor issues.
Both the High Courts and the Supreme Court have appellate jurisdiction to hear cases presented before them in the form of an appeal. They can either overturn or uphold the lower court's decision. The Supreme Court is recognized as a Court of Record because its decisions are legally binding and cannot be challenged in any court.
Each court's legal authority differs. Generally, lower courts have less authority, while higher courts have more. The concerned courts and their power determine original, appellate, supervisory, advisory, writ, and special leave jurisdictions. The territorial and pecuniary jurisdiction of civil courts is typically established by related state enactments on the subject. On the criminal side, the Code of Criminal Procedure is entirely responsible for jurisdiction. Criminal courts have authority over both territorial and criminal matters. For instance, only sessions courts can try crimes punishable by more than seven years in prison, while magistrate courts have the power to try cases carrying a maximum sentence of three years in prison.
Quasi-Judicial
The Constitution of India empowers constitutional bodies, while non-constitutional bodies are empowered by the Government. Non-constitutional bodies are divided into two categories: statutory bodies and non-statutory bodies. Statutory bodies are empowered by acts passed by the legislature, whereas non-statutory bodies derive their authority from executive orders.
Statutory bodies are further divided into two categories: regulatory bodies and quasi-judicial bodies. Regulatory bodies have autonomous authority over some aspects of human activity, whereas quasi-judicial bodies, such as Commissions and Tribunals, can interpret the law. A statutory body might be both regulatory and quasi-judicial.
Constitutional Body Examples:
*The Election Commission of India (ECI) governs the conduction and regulation of elections.
*The Comptroller and Auditor General of India (CAG) audits the Government's accounts.
*The Union Public Service Commission (UPSC) is in the process of selecting government candidates.
Non-Constitutional Body Examples:
*The Reserve Bank of India (RBI) governs the issuance of money, monetary stability, and the credit system.
*The Food Safety and Standards Authority of India (FSSAI) ensures food safety and standards.
*The Insurance Regulatory and Development Authority (IRDA) governs the insurance markets.
*The Telecom Regulatory Authority of India (TRAI) governs the telecommunication sector.
*The Securities and Exchange Board of India (SEBI) governs the stock markets.
*The National Human Rights Commission (NHRC) oversees human rights.
*The National Green Tribunal (NGT) is in charge of environmental cases.
Arbitration, Mediation, and Conciliation act as forms of Alternative Dispute Resolution (ADR), which is quasi-judicial in nature.
Arbitration is analogous to a court system, where parties submit evidence, similar to a trial, and a third party hears the entire scenario, rendering a binding judgment.
Mediation is a type of alternative dispute resolution that is non-binding and informal, offering a technique for resolving disagreements. In the mediation process, the parties have complete authority. The mediator serves as a middle person, assisting the parties in reaching an agreed-upon common ground in their disagreement.
Conciliation is a method of resolving conflicts without resorting to litigation. It is an informal process in which a third party attempts to reach an agreement between the disputants and presents the parties with a negotiated settlement.
In addition to the aforementioned processes, Lok Adalat (People's Court) also serves as a platform for the resolution of cases that are pending in the panchayat or in the pre-litigation stage of a court of law.
All India Services
The Indian Administrative Service (IAS), Indian Police Service (IPS), and Indian Forest Service (IFS) are three important civil services in India, collectively constituting the All India Services. Candidates must pass the Union Public Service Commission (UPSC) civil services exam to qualify for All India services. Officer responsibilities span from probationary officers to senior civil servants.
*IAS is responsible for administering government affairs and enforcing policies.
*IPS is responsible for ensuring public safety, internal security, and law and order.
*IFS is responsible for ensuring forest safety and management.
The Police Act of 1861 governs police duties and responsibilities, with positions, posts, and designations varying from state to state. It is vital to highlight that there are growing calls for a commission to oversee day-to-day police operations in response to instances of police violence.
Police departments perform three important functions: Law and Order (L & O), Crime, and Traffic Enforcement, all of which are handled by police stations. In addition to these fundamental functions, the police have several departments such as the Directorate of Vigilance and Anti-Corruption (DVAC), Economic Offences, Forensics, and others. The jurisdiction of different police stations varies by zone and ward.
Cognizable and Non Cognizable
To arrest an individual, a court-issued arrest warrant is required. However, what if the offenses are committed directly in front of our eyes? As a result, offenses are separated into two categories: Cognizable and Non-Cognizable, falling under criminal law. Arrest warrants are not required for Cognizable offenses, but they are required for non-cognizable offenses.
Examples of Cognizable offenses include murder, rape, dowry death, kidnapping, theft, criminal breach of trust, and criminal intimidation.
Examples of Non-Cognizable offenses include fraud, manipulation, defamation, and public annoyance.
Civil Nature
When a complaint is filed with the police station, the police officer will review the complaint to determine if it is cognizable or not. If it is cognizable, a First Information Report (FIR) will be created, serving as the foundation for criminal cases. If the complaint initially appears to be non-cognizable, the police officer will conduct a preliminary inquiry to determine whether an FIR is required based on the investigation.
If a police officer believes the case is civil in nature, they will not only decline to intervene but also refrain from investigating the case. In cases where the matter is criminal, and the police refuse to register an FIR, the complainant can take the matter to court. The court has the authority to order the police to perform their duty and register the FIR.
Chargesheet
The police have the authority to summon anyone to the station for questioning, and nobody can refuse. However, one has the right to go to the police station with an advocate. If, after the investigation, someone who has been summoned for interrogation is found guilty, the police have the authority to arrest them. The arrestee must appear before a judge within 24 hours of their arrest, and the police must explain the grounds for their detention.
Following the investigation, the police must file a charge sheet (also called a final report) in court within 90 days of the FIR being filed. The charge sheet serves as a notice or intimation to the accused, written in legal terminology and providing plain, unambiguous, or detailed notice of the nature of the accusation that the accused will face during the trial. If the police fail to complete the investigation and no charge sheet is submitted within 90 days (or 60 days, as the case may be), the accused has an indefeasible right to be released on bail.
Mistake of Fact
If there is no evidence of guilt during the inquest, if the complaint is false, or if the alleged offenses did not occur, the combination of the incident and the law may be incorrect. In such cases, the police will report the same Mistake of Fact to the court, and the concerned court case will be closed.
The police have the authority to make arrests based on the facts of the case. During the arrest, the arrest memo and inspection memo are crucial. The arrest memo should include the arrested person's name, time, date, location, and reason for arrest, as well as the suspected offenses. This document provides some protection against unlawful police detention. The memo must be signed by the police, independent witnesses, and the arrested person to ensure it accurately captures all relevant facts.
An Inspection Memo is a concise summary of an arrested person's physical condition, written after they are brought into custody. It must include information about the person's overall health and injuries, both major and minor. This procedure is in place to ensure that the person who has been captured is not mistreated or tortured while in police custody. Both the arrested person and the police must verify and sign the note, and the police must offer the individual a copy of the report.
Preventive Arrest
In a scenario where specific individuals disrupt public order, the police have the right to make preventive arrests of those individuals and release them after the situation has stabilised. They won't face charges, and the detainee will be released without the need for an arrest warrant.
Legal Notice
Before filing a case, individuals can send a private notice or an advocate notice to the respondent, either demanding fulfilment or seeking a reply. Individuals also have the right to appear in court without the assistance of an advocate, as hiring one is not compulsory. In court, a person can defend their own case. However, in practice, the majority of cases are handled with the help of advocates.
After the case is filed, the court will either send the notice to the respondent or ask the advocate to do so. The notice will be delivered to the respondent. If the house has been vacated, there is no such address, no such person, or the respondent refuses to accept the notice, or has been reported deceased, the notice will be returned. If the address was incorrect, the court will order that the address be checked for accuracy and reposted.
Ex Parte
If the respondent refuses to accept the notice, he or she will be considered Ex Parte in the case. Refusing to receive the notice is equivalent to receiving it. Ex Parte means that one of the concerned parties is not present or is not represented by an advocate in front of a judge in court. A party going Ex Parte can apologize for not being in court on the day of the trial and file a petition in the same court, claiming that if they are not allowed to participate in the trial, they will suffer a significant loss. The opposing party must file a declaration in response to the Ex Parte request, after which the court will decide whether or not to approve the Ex Parte petition.
Law of India
Indian law is based on several British laws that are still in operation today, albeit with minor changes. Much of today's law is influenced by European and American legal principles. Everyone is subject to the same Rule of Law, regardless of power, gender, or caste – whether from the upper or lower caste. The various types of laws are as follows,- Criminal Law
- Civil Law
- Common Law
- Statutory Law
- Procedural Law
*Criminal law, enforced by the police, defines cognizable and noncognizable offenses.
*Civil law is the branch of law that deals with non-criminal behavior.
*Common law is a body of law developed from judicial decisions rendered by courts and other tribunals.
*Substantive law defines and establishes the legal rights and obligations of citizens.
*Procedural law is concerned with law enforcement as it is guided and governed by practice and procedure.
The Constitution of India is the supreme law, containing a set of rules and regulations that govern administration.
The Indian Penal Code (IPC) is a substantive law that includes a wide range of offenses and specifies the penalties for various offenses.
The Code of Civil Procedure (CPC) governs the administration and unification of civil procedures in India.
The Code of Criminal Procedure (CrPC) is a procedural law that governs the enforcement and administration of the Indian Penal Code and other substantive criminal laws.
The Indian Evidence Act (IEA) is a procedural law that establishes a set of guidelines for the admissibility of evidence in Indian courts.
Law of Writ
A writ is a formal court order instructing authorities to take action when a government authority violates fundamental rights. An individual can file a writ petition for civil or criminal matters under Article 32 of the Indian Constitution in the Supreme Court and under Article 226 of the Indian Constitution in the High Court.The five sorts of writ petitions are,
- Habeas Corpus
- Mandamus
- Prohibition
- Certiorari
- Quo Warranto
*Habeas corpus literally means "you may have the body of". If the court determines that the individual is being held illegally, it might order their release.
*Mandamus literally means "we command". The higher courts order the lower courts, tribunals, forums, or other public authorities to carry out any act falling under their jurisdiction, which they fail to do properly or at all.
*Prohibition literally means "to forbid". The higher courts order the lower courts, tribunals, forums, or other public authorities to halt proceedings in a case over which they have no jurisdiction.
*Certiorari literally means "to be informed". The higher courts order the lower courts, tribunals, forums, or other public authorities to transfer a case pending with them to the higher courts for further review or, if necessary, quashing.
*Quo Warranto means "by what authority". This writ is issued to prevent someone from holding a public office to which they are not legally entitled.
Law of Bail
There is a significant difference between the criminal and the accused in any case. No one is deemed guilty until the court finds them so. According to a judicial principle, bail is a right, but jail is an exception. Bail is the process of releasing someone charged with offenses who is awaiting trial or appeal by completing paperwork and providing security to ensure their timely submission to legal authorities. The three types of bails are,
- Anticipatory Bail (Before arrest)
- Bail (Held in custody)
- Parole (Convicted)
*Anticipatory Bail is a legal option for individuals who believe they can avoid arrest if they know the circumstances in which they would be arrested.
*Bail is a legal option for a trial prisoner who is currently in custody to be freed.
*Parole is a legal option offered to a criminally convicted prisoner who, after serving a few years in prison, may be released on the condition that they remain well-behaved and check in regularly.
Law of Rent
Renting out any property for residential or commercial use is subject to several rules and regulations, including a written agreement between the two parties outlining the terms and conditions of the tenancy. The tenant's rights include the right to avoid unfair eviction, the right to pay fair rent, and the right to receive basic services, while the owner's rights encompass the right to evict, charge rent, and repossess the property. The Rent Control Act does not apply to property contracted to private or public limited companies with a paid-up share capital of 1 crore rupees or more, public sector undertakings, or foreign corporations.
Law of Insurance
Insurance is a time-limited contract in which the insurer undertakes to pay the insured in the event of a loss in exchange for an upfront premium payment. The insurer creates a pool of all the insured's premiums and utilizes that pool to pay the insured when a concern arises. This is how any form of insurance scheme operates in general. Every vehicle owner must have a valid insurance policy to use their vehicle on the road. The insurer offers to pay the insured for any civil damages under the terms of the insurance policy.
The Motor Vehicle Act also specifies the grounds on which an insurance company can be relieved from its duty to pay, such as when a vehicle is not being used for its intended purpose, when a vehicle is being driven without a valid permit, when a driver is driving without a valid license, and when a driver is driving under the influence of alcohol or drugs.
Law of Divorce
In India, divorce laws are influenced by religion. Hindus, Buddhists, Sikhs, and Jains are governed by the Hindu Marriage Act of 1955, whereas Muslims are governed by the Dissolution of Muslim Marriages Act of 1939. Parsis are subject to the Parsi Marriage and Divorce Act of 1936, and Christians fall under the provisions of the Indian Divorce Act of 1869. All inter-community and inter-faith marriages are regulated by the Special Marriage Act of 1956.
The fundamental points on which a husband and wife must reach agreement to facilitate the divorce case include alimony or maintenance, child custody, visitation rights, and property ownership. There are three sorts of marriage breakup options,
- Mutual Divorce
- Contested Divorce
- Annulment
Mutual Divorce: The courts will consider a divorce with the mutual consent of both the husband and the woman. However, for the petition to be allowed, the couple must have been separated for at least a year and be able to demonstrate that they are unable to live together.
Contested Divorce: In the event of a contentious divorce, a divorce petition might be filed on grounds such as cruelty, adultery, desertion, conversion, mental disorder, communicable disease, renunciation of the world, and presumption of death.
*Cruelty is defined as physical or mental abuse.
*Adultery is characterized by voluntary sexual activity outside of marriage.
*Desertion refers to abandoning one's partner without a valid reason.
*Conversion pertains to changing one's religion.
*Mental disorder results in an inability to perform routine tasks.
*Communicable diseases, such as HIV/AIDS, syphilis, gonorrhoea, or a virulent and incurable form of leprosy.
*Renunciation from the world with the aspiration to become a sannyasa.
*If the partner hasn't been heard from in at least seven years, death is presumed.
Annulment: Annulment is a legal process used to end a marriage, differing from the divorce procedure. Grounds for annulment include fraud, the pregnancy of the wife by someone other than the husband, impotence before the marriage, and impotence that persists even at the time of filing the case.
Law of Property
The word "property" originates from the Latin word "properietate", signifying an item that belongs to someone. Properties are classified into two types: immovable and movable. Immovable property refers to assets that cannot be moved, such as real estate (e.g., homes, factories, or companies), while movable property refers to assets that can be moved, such as computers, jewellery, or vehicles.
Property documents, including a sale deed, settlement deed, gift deed, release deed, partition deed, or will, play a crucial role in determining property ownership. Among these, a mother deed stands out as a significant document in real estate transactions, providing insight into the property's earliest registered document. Registering property documentation is a vital practice as it serves as essential evidence in case of disputes. It's worth noting that any document not registered cannot be presented as evidence in a court of law.
Possession documents, including Patta, Chitta, Adangal, water tax records, property tax documents, and electricity bills, are essential to establish property ownership. Patta serves as a revenue record for the land, while Chitta provides information about the property's area, size, and ownership details. Adangal is a basic land register maintained by Village Administrative Officers. These documents play a crucial role in obtaining possessory titles, ensuring the long-term enjoyment of the land.
Property Inheritance
When a property owner passes away, the property is inherited by the legal heirs. Regardless of whether a will is registered or not, obtaining possession of the property requires both a death certificate and a legal heir certificate.
The applicant needs to furnish a burial ground receipt. The Registrar then verifies the details of the person's demise, ensuring the accuracy of the provided information, and issues the death certificate to the applicant.
The application, signed by the Village Administrative Officer (VAO), is submitted to the Revenue Inspector for verification at the applicant's residence. After completing this step, the applicant submits the RI and VAO forms to the Tahsildar office to obtain a token number. Subsequently, the Tahsildar issues the legal heir certificate.
Conclusion
To conclude this essay, I will cite the Indian Constitution's preamble.
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic, and political;
LIBERTY of thought, expression, belief, faith, and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Reference
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