Systems Day ONE For L&T Executives Contents • Sources of Law; • Hierarchy of Courts, Tribunals; • Constitutional Courts – Judicial Review. Module outcomes
• Study deals with the theme of ‘law’ in relation to ‘society’
• The ‘legal system’ and significance and the ‘institutions’ and process of law • Examine the inter-linkage between ‘law’ and ‘society’ [how law has influenced society and vice versa] What is law?
• Traditionally, the law is viewed as set of rules, recognized and
enforced by the courts in the administration of justice • Hence, ‘law’ and ‘justice’ are two different concepts • Although all of us have some idea about ‘law’ (as part of common sense) some more understanding of law is necessary to understand this module Sources of law
• Commonsense tells you that ‘legislation’ is the source of law…
• …but there are other sources of law as well! • They are • Precedent (law made by courts or judges); • Custom • Hence, when we say ‘law’ we might be referring to any one of the above things The position
• Ideal way is to start with a problem [think that you have a problem (of any sort) then only you start thinking about ‘law’ – otherwise we seldom think about law at all Situation 1
• Where a subject is governed by legislation – you refer to that
‘legislation’ • Hold on…mere reference to ‘legislation’ is not sufficient (as this will not help you in getting over the problem) • You must move the court of law (and ask the judge to apply the law to your problem!) or take the help of some enforcement agency (created for that purpose) Situation 2
• Think of a situation…where a point at issue is not governed by any
‘legislation’ [then what is to be done!] • You can’t now wait until law is made to resolve your issue – not minding the situation you move the court of law • Then the court is expected to lay down the law on the point to resolve the issue… • …but the judge can never say – as there is no law, he will not be able to help you (or ask you to wait until law is passed) How does the judge help me (when there is no law)
• There are two methods
• ONE – although we say there is no law – it may not be law clearly applicable to your situation – in this situation the judge ‘interprets’ the law to suit your situation • TWO – this is as you thought, where no law exists – the judge looks by using his common sense (and principles of good conscience, equity, customs etc.,) to resolve the issue on hand • Just realize the situation No. TWO exists in relatively lesser number of cases • That is the reason we say – courts (or judge) also make law • Let's look to custom for a while • This is known as source of law from time immemorial • Court do perform a ‘recognizing’ role when it comes to custom • Before recognizing the custom the judge shall look into • Whether the custom is reasonable; • Its consistency with morality; and • Its impact upon future activities and public policy. Function of the judge
• To interpret the statute
1. While the lay person may think that, a statute, at least if it is well drafted should not need interpretation, and that its meaning should be as patent as day light – but this is ‘myth’ with common sense and reality is otherwise 2. The basic cause of the problems of statutory interpretation is nothing else than the difficulty of communication – the difficulty of finding unequivocal language by which to convey the intentions of Parliament Statutory interpretation
• There are good number of principles which are available to the judge • Literal rule • Golden rule • Mischief rule (of interpretation) • In practice the court usually considers all these approaches and then comes to a conclusion, which as far as possible, in its view harmonious with justice and reason Judicial law making
• The rule is – ‘justice is the reservoir that feeds the steams of judicial reasoning’ • Hence – when question of law arises before a judge in a court, the court must decide that question, unless specific statutory provision requiring the courts to refer to some other court/tribunal etc., • In drawing upon the wide and undefined concept of ‘justice, equity and good conscience’ the judge is entitled to consider habits, and thinking and attitudes of the society • The merit of the judge lies in his feeling the pulse of the society and then in applying his own sense of justice to the material that might have been gathered in such process • Excellence and maturity in the exercise of this function come from experience (and extremely difficult to generalize here) Judge made law – some examples
• The law of torts;
• The administrative law; • The law relating to interpretation of contacts and documents (except Ss. 91 to 100 of Evidence Act) • Certain aspects of law of property • Most of the topics in ‘conflicts of law’ • The law relating to interpretation of statues “courts move slowly, their law-making powers can only be exercised step by step case by case. They are largely confined to filling in gaps in the law or developing existing principles in new directions; and they move slowly. The court move one step at a time, like a pawn, while the legislative queen sweep from one end of the board to the other, one move. But (as every chess player knows) pawn matters; they can get to the other end of the board in the end, and they can even destroy a queen. And too case law if left to develop by itself, can over many years, build great new legal principles” - P. S. Atiyah, law and Modern Society (1983) pp. 131 The ‘system’ (before moving to ‘legal system’)
• The word ‘system’ connotes a complex of elements, each performing
its allotted role, but all working towards a common goal • It is a whole made-up of several parts, each having its own identity and yet, all striving to achieve harmony • …now we apply this to understand ‘legal system’… Components of legal system
THE LAW MAKING ORGAN COMPLETE THE RULES PROCEDURE TO MAKE RELATING ALL THESE TO LAW ELEMENTS MAKING WORK
LEGAL SYSTEM
INSTITUTIONS RULES ENTRUSTED GOVERNING WITH THE EXECUTION ADJUDICATION OF LAW INSTITUTIONS CONNECTED WITH ADJUDICATION • Legal system of a country is part of its social system and reflects the social, political, economic and cultural characteristics • It is therefore difficult to understand the legal system outside the socio-cultural unleash in which it operates Legislature – law making organ
• The enactment of formal legislation in any particular country is vested
in the legislature of the country • But…the composition of the legislature could still be a matter for analysis from social angle • If we take India as a case study then • We have legislation made during colonial legislature • And the ones which are passed after independence Colonial legislations
• The legislature has not been totally obvious to the needs of the society (as it was not completely representative) • Private members took considerable initiative in sponsoring such legislation • The legislature tried to maintain a balance between reforming an unjust or undesirable law and the need to secure public co-operation and to avoid harassment Post-independence legislation
• Resolve was to rebuild our society
• Many legal interventions – for building strong society (ex. Family laws, land laws etc.,) • The objectives were 1. Remove rules that were unjust or unsatisfactory 2. Replace different rules by uniform provisions; and 3. To introduce certainty into the law by codifying its principles, which would take the place of propositions which could be ascertained only after assiduous researches into case law Legal system – basic components Basic principles and values (largely outlined by the constitution), a set of operational 01 norms including rights and duties of citizens spelt out in the laws – central, state and local
Institutional structures for enforcement of
laws and a cadre of legal personnel endowed 02 with responsibility of administering the system World legal systems CIVIL LAW – BLUE; COMMON LAW – MAROON; RELIGIOUS LAW – YELLOW; CUSTOMARY LAW – OTHER; PLURALISM - GREEN Judicial review • Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body • In civil law system judicial review is not as robust as in common law system • The countries in which judicial review is strong – the judicial independence/creativity is also very strong Judicial review in India Supremacy of Constitution in India Article 13 - Laws inconsistent with or in derogation of the fundamental rights (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void (3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas • Judicial review plays an important role as a protector when the executive, judiciary and legislature harm the Constitutional values and deny the rights • The judicial assessment is considered as an indispensable feature in the country
