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Short Notes on Law and Concept of Law – Civil and Criminal Laws
and Courts of India
(For students of PGDCC – LASWEB and University of Calcutta)
By Sanjay Mukherjee
MICA (ICWA); MBA (Finance); LLb
Advocate–High Court at Calcutta
Preamble
Merriam - Webster Dictionary defines Law as "a binding custom or practice of a
community: a rule of conduct or action prescribed or formally recognized as binding or
enforced by a controlling authority".

The law is a system of rules that a society or Government develops in order to deal with
crime, social relationships and business agreements.
The word came from the old English word 'Lagu' i.e. law, ordinance, rule, regulation. The
term law has different meanings in different places/societies at different times. In Hindu
religion law implied 'Dharma'. In Mohamedan or Islamic religion it was 'Hokum'. In
Roman it is 'Jus'. In French it is 'Droit'. It varies from place to place in the sense that while
adultery is an offence in India (under section 497 of the Indian Penal Code, 1860) it is no
offence in America. Law differs from religion to religion in the sense personal laws like
Hindu law, Muslim law etc. differ from one and another. If a Hindu male marries again
during the lifetime of his first wife he is guilty of offence of bigamy which is punishable
under section 494 however, a Muslim can have four wives living at a time.
The law is not static, it is subject to change with the situation, chance in society and also
change in the government/legislation through amendments/acts.
DEFINITION OF LAW
It is very difficult to define the term law. Many jurist admitted to define the term law for the
purpose of clarity, some of the definition given by jurist in different periods are categorized as
follows:-
a) Salmond - according to Salmond - law may be defined as the body of principles
recognized and applied by the state in the administration of justice. However, this
definition has been criticized because Salmond did not define the expression of
justice. What has been considered just at one time may not be considered to be so
in different time.
Roscoe Pound criticized the definition of Salmond as reducing law to a mass
of isolated decisions and the law in that sense to be an organic whole. Further, it is
criticized on the ground that Salmond’s definition applies only to lax law not to Statute.
Despite criticism, Salmond’s definition is considered as the workable definition.
b) AUSTIN - John Austin an English Jurists expounded the concept of analytical
positivism, making law as a “command of sovereign backed by sanction”. According
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to Austin "law is aggregate of rules set by men politically superior or sovereign to

men as politically subject." Austin says "A law is command which obliges a person or
persons to a course of conduct".
A well-ordered society is one which is effectively regulated by public perception of Justice
and fairness. It depends upon two basic principles of justice:
 Equality of right to serve basic liberty as regards opportunities and power.
 Social and economic inequalities should be limited only in that sense that they ensure
the man benefit to a community as a whole.
Meaning of Positivism: It is the concept which sharply separates law and morality and which
contrasts the natural law theory. The positivists argue that the theories of morality, religion,
justice, and equality differ from law and should play in no role in the interpretation or
application of legislation. Thus,

they concluded that as long as written law has been duly enacted by a branch of Government
it must be deemed valid and binding regardless of whether it offends anyone’s sense of right or
wrong.

Positivism theory was based on two values:

 Law must be a command.

 It curbs judicial discretion On the basis of this separation of law and morality, this
theory was criticized by various jurists and this total separation of law ‘as it is’ and
‘ought to be’ cannot be maintained. Through the chief defect in the above theory, so
many other theories came into existence like histories law school which regards custom
as a source of law and other like Neo-Austin theory which regards general will as the
sources of law and others. So, at the conclusion, we can say that positivism flourished
best only in the stable conditions of society, but for developing eras, the intellectual
relations of existing law and morality is essential.
Legal System

The legal system of a country is part of its social system and reflects the social, political,
economic and cultural characteristics of that society. It is, therefore, difficult to understand
the legal system outside the socio-cultural milieu in which it operates.

It is true in the case of India also - even though the legal system we now have is largely the
gift of the British rulers.

The distinct feature of our judiciary is that it is a Single Unified Integrated Judicial System
for the whole country. A single judiciary represents a hierarchy of courts. The Supreme Court
stands at the top of this single integrated judicial system with High Courts at the State level.
Below the High Courts, there are several subordinate courts such as the District Courts which
deal with civil cases and the Session Courts which decide criminal cases.
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Laws - Civil and Criminal

The laws of the country are too numerous, varied and complex, inspired by the Constitution,
Parliament, State legislatures and Local Councils make and unmake the laws day in and day
out as the occasion demands.

Courts interpret them in specific fact situations and, in the process, extend the scope and
application of the laws. On the basis of the remedies sought and the procedure followed, all
laws can be grouped into two categories, namely, Civil Laws and Criminal Laws.

Broadly speaking, Criminal Law is concerned with wrongs against the community as a
whole, while Civil Law is related to the rights, duties and obligations of individual members
of the community between themselves.

Civil Laws
Civil law includes a number of aspects which may be grouped under six or seven major
headings such as family law, the law of property, the law of tort, the law of contract, the law
relating to commerce and business, labour law, law of taxation etc.

Family law primarily governs Marriage, Divorce, Maintenance, Custody of Children,

Adoption, Inheritance And Succession.

The Law of Property includes Rights of Ownership, Transfer, Mortgages, Trusts, Intestacy
and similar matters.

The Law of Contracts - is concerned with the enforcement of obligations arising from
agreements and promises.

Injuries to person or property caused by failure to take reasonable care and caution leads to
actionable wrongs under Tort, which usually compensates the victim of such injuries.

Laws of Commerce and Business - which includes contract law, relate to economic operations
of individuals, partnerships and companies and governmental regulation of them.

Even Law of Taxation forms part of commercial laws. Labour law deals with the relationship
between employer and employees in the production and distribution of wealth.

Criminal law

Criminal Law is concerned with public wrongs or wrongs against the order and wellbeing
of the society in general.

The persons guilty of such wrongs are prosecuted and punished by the State. These wrongs
are specific and are defined in the Penal Code and a few other special and local laws.

One important aspect in this regard is that criminal laws insist (apart from a few exceptional
offences) on a particular intent or state of mind as a necessary ingredient of a criminal offence.
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Ignorance of law is never taken as an excuse.

Subordinate Courts:
Articles 233 to 237 in Part VI of the Indian Constitution has provisions to regulate the
organisation of subordinate courts and to ensure their independence from the executive.

In the judicial organisation of every state, the High Court is the apex body. Below the High
Court, there are other courts that constitute the subordinate judiciary. The jurisdiction and
nomenclature of subordinate courts in the various States of the country are different and may
vary.

At present, there are three or more tiers of civil and criminal courts below the High Court.

The subordinate courts are called so - because of their subordination to the state High Court.
In each district of India, there are various types of subordinate or lower courts. They are:

  Civil courts,
  Criminal courts and
  Revenue courts.

These Courts hear civil cases, criminal cases and revenue cases, respectively.

Civil Courts

 Civil cases pertain to disputes between two or more persons regarding property, breach of
agreement or contract, divorce or landlord-tenant disputes.

 Civil Courts settle these disputes. They do not award any punishment for violation of
law, which is not involved in civil cases.
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 The disputes relating to property, succession, ownership and other such rights come
under the jurisdiction of Civil Courts, which dispose of these cases in accordance with
the Civil Procedure Code.

Criminal Courts

 Criminal cases are related to the violation of laws.

 These cases involve theft, dacoity, rape, pickpocketing, physical assault, murder,
etc. These cases are filed in the lower court by the police, on behalf of the state,
against the accused.

 In such cases the accused, if found guilty, is awarded punishment like fine,
imprisonment of various quantum or even death sentence.

 These cases are disposed of by the Criminal Courts in accordance with the Criminal
Procedure Code and primarily Indian Penal Code.
Revenue Courts

 Revenue courts deal with cases of land revenue in the State.

 The highest Revenue Court in the district is the Board of Revenue.

 Under it are the Courts of Commissioners, Collectors, Tehsildars and Assistant

Tehsildars.

 The Board of Revenue hears the final appeals against all the lower revenue courts under
it.
Structure and Jurisdiction of Subordinate Courts

 The organisational structure, jurisdiction and nomenclature of the subordinate judiciary

are laid down by the states. Hence, they differ slightly from state to state.

 Generally, there are three tiers of civil and criminal courts below the High Court.

 The District Judge is the highest judicial authority in the district. He possesses original
and appellate jurisdiction in both civil and criminal matters.

 In other words, the District Judge is also the Sessions Judge when he is heading the
Criminal side in the district. When he deals with civil cases, he is known as a District
Judge and when he deals with criminal cases, he is known as a Sessions Judge.

 The Sessions Judge has the power to impose any sentence, including life imprisonment
and capital punishment (death sentence).

 However, a capital punishment passed by him is subject to confirmation by the

High Court, whether there is an appeal or not.

 In some states, Panchayat Courts try petty civil and criminal cases. They are variously
known as Nyaya Panchayat, Gram Kutchery, Adalati Panchayat, Panchayat Adalat and
so on.
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High Court

At present there are 21 High Courts for 28 States and seven Union Territories. The High
Courts are the highest courts at State level, but being part of integrated Indian judiciary they
work under the superintendence, direction and control of the Supreme Court.

1. Composition
There is a High Court for each State. However, there can be a common High Court for
two or more States. For example, the States of Punjab and Haryana and the Union
Territory Structure of Government of Chandigarh have a common High Court situated at
Chandigarh. Similarly, the High Court of Guwahati once upon a time was common for all
seven north-eastern States of Assam, Nagaland, Manipur, Meghalaya, Mizoram, Tripura
and Arunachal Pradesh. Now it’s jurisdiction is limited to four states of Assam,
Arunachal Pradesh, Nagaland and Mizoram. Delhi, though not a State, has its own
separate High Court.
Every High Court has a Chief Justice and a number of judges. The number of judges
varies from State to State. The number of judges of each High Court is determined by the
President of India.
2. Appointment
a. The judges of the High Courts are appointed by the President of India.
b. While appointing Chief Justice of a High Court, the President has to consult the Chief
Justice of the Supreme Court and the Governor of the State concerned.

c. While appointing other judges, the President consults the Chief Justice of the Supreme
Court, the Chief Justice of the High Court and Governor of the State concerned.
d. The judges can be transferred from one High Court to another by the President.
e. As mentioned earlier, consultation with the Chief Justice of the Supreme Court in
respect of appointments and transfers of the judges of the High Court is also obligatory
and binding for the President.
f. While the constitutional status of the President remains intact, the actual selection of
judges is made by a team of senior judges of the Supreme Court, headed by the Chief
Justice of India in accordance with 1993 ruling as reinterpreted in 1999 by the Supreme
Court. This is known as Collegium of the Supreme Court. Its recommendations are
binding on the President.
3. Qualifications, Tenure and Removal of the Judges
a. In order to be appointed as a judge of a High Court, the person concerned
should possess following qualifications:
(i) He or she should be a citizen of India.
(ii) He or she should have held a judicial office, at the district level or below
for at least ten years.
OR
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He or she should have been an advocate in one or more High Courts for at
least ten years continuously without break.
b. Once appointed, the High Court judges hold office till they attain the age of 62
years.
 After retirement, they may be appointed judges of the Supreme Court or they may
practise as advocates either in the Supreme Court or in any High Court other
than the High Court in which they served as judges.

c. A High Court judge may be removed before he or she attains the age of 62 years,
only on the ground of incapacity or proved misbehaviour. He or she may be
removed if both the Houses of Parliament adopt a resolution by a majority of
their total membership and by two thirds majority of members present and
voting, separately in each House in the same session. Such a resolution is
submitted to the President, who then can remove the concerned judge. This
procedure is same as for removal of judges of the Supreme Court.
4. Jurisdiction
a. The High Courts have the power to hear and decide cases which are brought
directly to it. This power is called Original Jurisdiction.
b. Power to Issue Writs: AS ‘Right to Constitutional Remedies’ and part of
Fundamental Rights that the Supreme Courts and High Courts can issue WRITS
to ensure that rights of the people are not violated either by State or otherwise. The
Constitution has specifically given the power ‘to issue certain writs’ to the High
Courts. These Courts can issue writs (which are binding directions of the
Court) to any person or authority, including government of the State concerned.
The writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo
Warranto, and Certiorari for the enforcement of rights of the people. This power
is exercised in the original jurisdiction of the High Court, and is not derogatory to
similar power of the Supreme Court.
c. When a High Court hears an appeal against the decision of a lower court, it is called
Appellate Jurisdiction. A High Court is mostly a court of appeal. Appeals in both
civil and criminal cases are brought to it against the decisions of the lower courts.
5. Superintendence of Subordinate Courts
A High Court has the right of superintendence and control over all the subordinate
courts in all the matter of judicial and administrative nature. In the exercise of its
power of superintendence, the High Court may call for any information from the
lower courts; may make and issue general rules and prescribe norms for regulating the
practice and proceedings of these courts; and it may issue such directions, from time
to time, as it may deem necessary. It can also make rules and regulations relating to the
appointment, demotion, promotion and leave of absence for the officers of the
subordinate courts.
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6. Court of Record
A High Court is also a court of record, like the Supreme Court. Lower courts in a
State are bound to follow the decisions of the High Court which are cited as
precedents. A High Court has also the power to punish for its contempt or disrespect.
Supreme Court

 The Supreme Court is the highest judicial authority of India. It consists of the Chief
Justice and 32 other judges. The Parliament may increase the number of judges if it
deems necessary. To begin with, besides the Chief Justice, there were only 7 other
judges.
 The Chief Justice and other judges of the Supreme Court are appointed by the
President of India. While appointing the Chief Justice, the President is constitutionally
required to consult such other judges of the Supreme Court as he deems proper, but
outgoing Chief Justice is always consulted. Normally, the senior most judge of the
Supreme Court is appointed as the Chief Justice of India, although there is no
constitutional requirement to do so.
 While appointing other judges, the President is bound to consult the Chief Justice and
other senior judges, if he deems proper. Whenever there is vacancy or a likely vacancy
in the Supreme Court, the Chief Justice and four other senior most judges consider
various names and recommend the names of the persons to be appointed as judges of
the Supreme Court. This system is based on a ruling of the Constitutional Bench of a
Supreme Court (handed down in 1993 and reinforced in

1999). Thus, while the Constitution still provides that the President is the appointing
authority of the Supreme Court judges, the ruling of the Supreme Court, has since
1999, become virtually binding on the President.
 The power of selection of judges has passed on to a group of Supreme Court judges, called
the Collegium of the Court. The President now performs the formality of appointing the
nominee of the Supreme Court, after the Law Ministry formally recommends these
names to him.
1. Qualifications, Tenure and Removal of the Judges
 A person is qualified for appointment as a judge only he/she is a citizen of India
and if he/ she fulfils one of the following conditions:
a) he/she has been for at least five years a Judge of as High Court or two or more
than two such courts; or
b) he/she has been for at least ten years an advocate of a High Court or of two or
more than two such courts; or
c) he/she is, in the opinion of the President, a distinguished jurist.
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 The Chief Justice of India and other judges of the Supreme Court hold office till
they attain the age of 65 years.
 A judge may voluntarily resign before expiry of his term. In exeptional cases a
Supreme Court judge may be removed before the age of retirement, according to the
procedure laid down in the Constitution. Thus a judge of the Supreme Court can be
removed from office by an order of the President passed after an address by each
House of the Parliament supported by a majority of total membership of the House and
not less than two-third majority of the members of the House present and voting,
passed in the same session, has been presented to the President for such removal on the
ground of proved misbehavior or capacity.

 It is clear that Supreme Court judges enjoy security of tenure, and the executive
cannot arbitrarily remove them.
 No person who has held office of a judge of the Supreme Court is allowed to
plead as an advocate in any court or before any authority within the territory of
India.
 The judges of the Supreme Court are paid such salaries as are determined by the
Parliament from time to time.

2. Court of Record

The Supreme Court is a Court of Record. It has two implications. All its decisions and
judgments are cited as precedents in all courts of the country. They have the force of law and
are binding on all lower Courts, and indeed the High Courts. As a Court of Record, the
Supreme Court can even send a person to jail who may have committed contempt of the
court.

3. Jurisdiction
The scope of powers of Supreme Court to hear and decide cases is called its jurisdiction.
The Supreme Court has three types of jurisdictions namely original, appellate and
advisory.

a) Original Jurisdiction - There are certain cases which fall within the exclusive
jurisdiction of the Supreme Court. It means that all such cases begin or originate in
the Supreme Court, only. It also means that such cases cannot be initiated in any
other court. The cases or disputes that come under the original jurisdiction are given
below
i) Disputes between the Government of India on the one side and one or more
States on the other side.
ii) Disputes between the Government of India and one or more States on one
side and one or more States on the other side.
(c) Disputes between two or more States.
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iii) The Supreme Court has been invested with special powers in the
enforcement of Fundamental Rights. In this connection, it has the power to
issue directions or writs.

iv) Cases under Public Interests Litigation (PIL) can also be heard directly.
(This is an extra Constitutional practice; there is no mention of PIL in the
Constitution).
b) Appellate Jurisdiction : The power of a superior/higher court to hear and decide
appeals against the judgment of a lower court is called appellate jurisdiction. The
Supreme Court has vast appellate jurisdiction. It hears appeals against the
judgment of the High Courts. Thus, it is the highest and the final Court of
Appeal. If one of the parties to a dispute is not satisfied with the decision of the
High Court, one can go to the Supreme Court and file an appeal. The appeals
can be filled in Civil, Criminal and Constitutional cases.
c) Advisory Jurisdiction: This power implies Court’s right to give advice, if sought.
Under advisory jurisdiction, the President of India may refer any question of law
or public importance to Supreme Court for its advice. But the Supreme Court is
not bound to give advice. In case, the advice or the opinion of the Court is sent to
the President, he may or may not accept it. The advice of the Court is not binding
on the President. So far, whenever the Court has given its advice, the President
has always accepted it. The Court refused to give its advice on the question
whether a temple existed at the spot, where Babri Masjid was built at Ayodhya
4. Protector and interpreter of Constitution:
 The Constitution of India is the supreme law of the land and the Supreme Court
is its interpreter and guardian. It does not allow the executive or the Parliament to
violate any provision of the Constitution.
 It can also review any action of the Government, which violates any provision
of the Fundamental Rights. This power of the Supreme Court is called Judicial
Review. If it finds violation of any provision of the Constitution, it may declare the
concerned law as ultra-vires, or null and void. It is on the basis of this power of
Judicial Review of the Supreme Court that it is called

“Guardian of the Constitution”. It is also called ‘a champion of liberties’ and ‘a

watchdog of democracy’. In this context the role and the functions of the Supreme Court
are wide and comprehensive.
 The Supreme Court has concurrent right with the High Courts to issue directions,
orders and writs for enforcement of fundamental rights. These are in the nature of the
writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.
These writs make the Supreme Court a protector and guarantor of fundamental rights.
The idea is that in case of violation of a law or right, the Court may issue directions
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for

compliance with the Constitution. Thus, the citizens of India are secure as far as
fundamental rights are concerned. The Supreme Court has the right to declare a law
passed by the legislature null and void if it encroaches upon our fundamental rights. It
has rejected many legislations, which violated fundamental rights. This shows how the
Supreme Court has always served as the guardian of fundamental rights.

Lok Adalat:
A Mechanism of Alternate Dispute Resolution: The prevailing system of administration of
justice based on the common law jurisprudence was found to be not suitable to the socio-
economic conditions of this rural land and the formalism in law alienates the illiterate, destitute
and deprived from the judicial process. Moreover, our justice delivery system is terribly
expensive, dilatory, slow and found to be cumulatively disastrous. The result is that the legal
system has lost its credibility for the weaker sections of the society. Justice has ever been the
highest ideal of mankind and had been an urge behind all social upheavals and revolutions.

 The Concept of Equal Justice- Equal access to justice is the condition precedent for
the claim and realization of the constitutional guarantee of justice-social, economic and
political. Thus, “access to justice” is “a function of government in a civilized society
to provide and maintain adequate and effective machinery, both within and outside the
formal judicial process, to which all citizens, acting individually or as a group, can have
access on an equal basis for the impartial resolution of their disputes”.
 Alternate Dispute Resolution Mechanism- - In the search for alternatives to the
inherited model of adjudication through courts, litigants have come to adopt a
variety of dispute settlement mechanisms, informal in approach, simple in
techniques, speedy in process and cheap in administration. Among various ADR
techniques negotiation, conciliation, mediation, arbitration etc. are commonly resorted
to the world over for resolution of disputes.
 Lok Adalat as an Effective ADR Tool- Lok Adalat, being cheap, expeditious and
indigenous, has acquired a pride of place in the hierarchy of various alternate dispute
settlement mechanisms in the justice delivery system of India. “Lok Adalat concept and
philosophy is an innovative Indian contribution to the world jurisprudence. It helps in
emergence of jurisprudence of peace in the larger interest of justice and wider sections
of society.”

Why Lok Adalats?-

The repeated maxim “Justice delayed is justice denied” comes true in view of the alarming
backlog of pending cases before courts of different hierarchy resulting into dilatory justice
delivery system in India. This dismal situation compels the legislature and the judiciary to
have an in-depth introspection about the deficiencies in our legal system and strongly
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advocates invoking the indigenous and traditional ADRs. The problem of back log of cases is

not only peculiar to India but is a universal phenomenon. Sometimes the parties are not able
to get justice in their life time and the new generation has to pursue the case in the quest of
justice rendering the constitutional notion of equality and justice a teasing illusion to them. In
this given state of affairs the mechanism of Lok Adalats is the only option left with the
people to resort to for availing cheap and speedy justice.

Statutory Foundation of Lok Adalats-

In pursuance of Article 39-A of the Constitution of India, the Parliament has enacted the
Legal Services Authorities Act, 1987 with the legislative intent to constitute various legal
services authorities to provide free and competent legal services to the weaker section of the
society. The Act has conferred statutory status to Lok Adalats for the first time through the
parliamentary legislation, although the institution had the glorious socio-cultural heritage in
India. The significant feature of the Act is the incorporation of Chapter VI on Lok Adalats to
organize them periodically within their jurisdiction.

Functioning Of Lok Adalats-

Lok Adalats resolve compoundable offences, motor vehicle claims, labour disputes,
matrimonial and family disputes, bank loans, insurance claims and such other matters. The
disposal statistics speaks volumes of the success and popularity of the institution.The
mechanism of Lok Adalats has contributed significantly in reducing the backlog of cases
pending in subordinate judiciary and can equally relieve the higher judiciary from incoming
litigation in the form of appeal, revision etc. by settling the dispute finally once for all.

Permanent Lok Adalats (PLA) -

To overcome the major drawback in the existing scheme of Lok Adalats organized under
Chapter VI of the Act that the new Chapter VI-A has been inserted in the Act by the
Legal Services Authorities (Amendment} Act, 2002 to provide for the establishment of
Permanent Lok Adalats for pre-litigation conciliation and settlement of disputes concerning
Public Utility Services and to decide them on merits if no settlement is forthcoming.

The PLA undertakes pre-trial settlement on the application of any party to the dispute and
subsequently other party is not allowed to invoke the jurisdiction of any court in the same
dispute. On getting seized of the matter the PLA assists the parties to arrive at a settlement,
where the parties does not reach the settlement, the PLA can decide the dispute on merits.
However, while deciding the case on merits the PLAs shall be guided by the principles of
justice, objectivity, fair play, equity and other principles of justice.