INTRODUCTION
Law and morality are too
vague to understand. It must be added here that the notions of law and justice
can't be captured and presented before us within a few sentences. These notions
are too vast that even words are not sufficient to define them. Many jurists
from the ancient Greek period to the modern and even the post-modern era have
attempted numerously to define these concepts, but have failed. One of the
reasons may be that the roots of these concepts lie somewhere within the human
psyche, which is extremely random and versatile. Well it is required to
describe the tenets of the two main schools of law.
Law
is continuously evolving norm or rather we should say that it is a part of a
normative system whose work is to regulate certain norms in society. It is
dynamic and is never at any point of time static. Law has to change from time
to time as according to the ever-changing demands of society. Law doesn't exist
for its own state. It has to achieve certain objectives, which may be short
term or long term. Law aims to create an order in society (in all units of
society). Law tries to create a working environment which is equally just to
all sections of society.
On the other hand, there is the vague concept of morality which is a sought of
norm or a part of normative system. Morals are actually certain yardstick
standards in our society which work as prescriptions to human behavior. The
starting of preaching of morals start from the very basic unit of our society
i.e. family. As in a Hindu family, young people touch the feet of elders to
wish them. There is no logic behind these morals but still these morals do
prevail in our society. This is fully ones own private practice in which
nowhere law has to intervene. A morality can be one which throws a negative
impact on society and the other which can benefit the society. Law or morality
both are normative systems of our society as both are normative and
institutionalized by nature. The only difference between law and morality is
that law is coercive by nature but morality is not. Law is enforced by coercion
and its constant application on a society leads to the internalization of law
in human soul. Initially, law gives only an external behavior or an overt
effect, but with the pace of time the forceful obedience of laws takes the
shape of an internalized realization of habitual obedience.
COMMON LAW FOUNDATION
Introduction
Introduction
A common law foundation is a system of jurisprudence that is based on
the principles under which the lower court must follow the decisions of the
higher courts, rather than on statutory laws.
It usually awards monetary damages in certain cases. The common law
system originated from “England” later adopted in the United States and
Canada and in “Common Wealth” countries too. It is a legal system
that gives great presidential weight to common law on the principle that it
is unfair to treat similar facts differently on different occasions. The body
of “precedent” is called “Common Law” and it binds future
decisions.
The Origin
The new ruler of England after the Norman conquest in 1066
A.D. The new ruler of England, William I brought about a number of
governmental reforms including revamped Legal Structure of England. Previously the legal
system of England comprised of Country Courts presided by the Bishops
and Country Sheriffs with both criminal and civil jurisdictions. By
virtue of having conquered England, he proclaimed that all rights bases on land
were now under the King. Hence courts came under the administration of Norman
Rule. The King had intentions to enjoy the monetary benefits of the court.
In 1154, Henry II institutionalized the
Common Law by creating a unified system of law “Common” to whole of
England through incorporating and elevating local custom to the nation and
reinstating a Jury System - citizens sworn on oath to
investigate reliable criminal accusations and civil claims. The Jury reached
its verdict through evaluating common law knowledge and local customs, not
necessarily jurisdictions. The culmination of a centralized system
of law with the practice of keeping record of decided cases for future
reference wherein customs also played an exemplary role to decide nuanced
points of law together gave birth to what is referred to as “The Common Law.”
RULE OF LAW
Introduction
Rule of law means “the law rules”. Rule of law refers to “a
government based on the principles of law and not of men”. In its
ideological sense, the concept of rule of law represents an ethical code for
the exercise of public power, the basic postulates of which are equality,
freedom & accountability. It refers a ‘climate’ of legal order which
is just & reasonable. Every executive, legislative & judicial exercise
of power must depend on this ideal for its validity.
It means that ‘Law shall prevail and not an
individual’. Law shall be supreme and there cannot be any individual who is
above the law. This is what is called the Doctrine of Rule of Law
i.e. “Law governs & not individuals”.
The individuals (President, PM & Council of
Ministers) may be the means of governance but even such individuals have to act
under the law. Such individuals are not supreme rather the Constitution is the
supreme.
The Rule of Law implies that the government has
to exercise its powers in such a manner in which:
1. The dignity of an individual is upheld
2. The
object of social welfare & justice can be achieved.
3.The unity of the individual and the integrity
of the nation can be promoted.
4.There is no discrimination between people in matters
of sex, religion, caste or race etc.
5. Equality exists.
l History of Rule of Law
Rule of law is existing since ancient times.
During that period also, Law was above than the king. Everyone had to follow
the law.
No one was above the law. In Dharma sastras- it
is mentioned that”
Both parties must be heard. No decision can be
given behind the back of the parties. The judges must not have any bias or
interest in the cause. They must pronounce judgment with reasons.
l Three Pillars of Rule
of Law given by A.V Dicey
According to A.V. Dicey, rule of law means the
‘absolute supremacy of regular law’.
Dicey’s concept of rule of law means ‘no influence of arbitrary powers
and thus exclusion of liberty, equality before the law and protection of
individual liberties. Dicey’s theory has three pillars based on the concept
that “a government should be based on principles of law and not of men”.
These are:
1.
Supremacy of Law
2.
Equality before Law & equal protection
before law.
3.
Protection of individual liberties.
SEPARATION OF POWERS
The doctrine of Separation of Power was
conceived by a French scholar Montesquieu. He found that concentration of power
in one person or a group of persons resulted in tyranny (a state under cruel
& oppressive govt. or despotism or absolutism or arbitrary use of power)
and it can be misused. He therefore, felt that the governmental power should be
vested in separate organs i.e. Legislature, Executive & Judiciary.
Thus, the doctrine of separation of powers
emphasizes the mutual exclusiveness of the three organs of the government.
The doctrine signifies three formulations of
structural classifications of governmental powers:
1. The same person should not form part of more
than one of the three organs of government.
2. One organ of government should not interfere
with any other organ of the government.
3. One organ of the government should not exercise
the functions assigned to any other organ.
l Objective of Separation
of Power
The aim of the doctrine is to guard against
tyrannical and arbitrary powers of State.
The object is that the centre of authority must
be dispersed to avoid absolutism.
It is essential to develop adequate “checks and
balances” i.e. functioning of one organ is to be checked in some measure by the
other, to prevent administrative arbitrariness.
l
Nature of Separation of Power
The doctrine is structural rather than
functional. It means that it seems to be rigid but in reality it is flexible i.e.
one organ can performs the function of other organ.
This doctrine cannot be literally applied to
any modern government, because neither the powers of government can be kept in
watertight compartment nor can any govt. run on strict separation of powers.
Thus, no separation of powers in the strict sense exists in England, USA and
India.
NATURAL JUSTICE
Introduction
Natural justice is identified with two
constituents of a fair hearing. These are the rule against bias and the right
to a fair hearing. They are:
1) Nemo judex in causa sua
no one should be a judge in his own case.
no one should be a judge in his own case.
2) Audi alteram partem
hear the other side or rule of fair hearing.
hear the other side or rule of fair hearing.
Principle of Natural Justice has three points
as under:
l Nobody can be punished
unheard.
l Nobody can be judge of
his own case.
l Authorities must act
without bias.
Features
Principles of natural justice are regarded as
universal in nature. As they are universal in nature they are binding on all
authorities including judiciary, executive and legislature, private individuals
and all the organizations. The purpose of these principles is to exclude the
elements of arbitrariness in decision and humanizing the decision making so
that action must be supported by reasons.
The Apex Court held that these principles are
implicitly found in Article 14 and 21 of the Constitution. They are so
important for the functioning of the State that they are regarded as the part
of the basic structure of Indian Constitution. The principles of Natural
Justice have come out of the need of man to protect himself from the excesses
of organized power. Man has always appealed to someone beyond his own creation.
Such someone is the God and His Laws or Divine law or Natural law. Natural law
is of ‘Higher Law of Nature’.
Natural law does not mean the law of the nature
or jungle where lion eats the lamb and tiger eats antelope but a law in which
the lion and lamb lie down together and the tiger hunt the antelope. Natural
law is common sense justice. Natural laws are not codified. It is based on
natural ideals and values which are universal.
Earlier Natural Law
Earlier Natural Law
Earliest form of natural law can be found in
Roman philosophical expressions (Jus Naturale). It is used
interchangeably with Divine Law, Jus Gentium and the Common Law of
nations. Principles of Natural Justice are considered as the Basic Human Rights
as they attempt to bring justice to parties naturally. Giving reasoned
decisions is a postulate and principle of Natural Justice. No system of law can
survive without these two basic pillars.
RULE OF EQUITY
Introduction
In law, the term "equity"
refers to a particular set of remedies and associated procedures involved with
civil law. These equitable doctrines and procedures are distinguished from
"legal" ones. A court will typically award equitable remedies
when a legal remedy is insufficient or inadequate.
In modern practice, perhaps the most important
distinction between law and equity is the set of remedies each offers. The most
common civil remedy a court of law can award is monetary damages.
Equity, however, enters injunctions or decrees directing someone either to act
or to forbear from acting.
l
Difference between Law and Equity
Equity allows courts to apply justice
based on natural law and on their discretion. The most
distinct difference between law and equity lies in
the solutions that they offer.
l Concept of Equity
It is generally agreed
that equity implies a need for fairness (not necessarily equality) in
the distribution of gains and losses and the entitlement of everyone to an
acceptable quality and standard of living. The concept of equity is
well entrenched in international law.
l
Origin
Two distinct system of law were administered by
different tribunals at the same time in England till the year 1875. The older
system was the Common Law and it was administered by the King’s Benches. A modern
body of legal doctrine was developed and administered in the Court of Chancery
as supplementary to and coercive of the old law, was the law of Equity. The two
systems of law were almost identical and in harmony leading to maxim “Equity
follows the law”. In other words the rules already established in the old
Courts were adopted by the Court of Chancery and incorporated into the system
of equity unless there were sufficient reasons for rejection or modification.
In case of conflict, the rule of Chancery prevailed.
l Nature
1.
Equity follows the law. In case of conflict
between law and equity, law prevails.
2.
An equitable right arises when a right vested
in one person by the law should be vested in another in the view of equity as a
matter of conscience.
3.
Where equities are equal, which is first in
time will prevail.
INDIAN CONSTITUTION: SALIENT FEATURE
Meaning
A Constitution is a set of Fundamental
Principles or Established Presidents according to which
the state or other organization are governed. When these principles are written
down into a single collection or set of documents these documents set to
comprises a written constitution.
Why do we need a
Constitution?
It is a written constitution. We need
constitution to maintain peace and order. We need constitution to keep an eye
check on people and government so that there would be no violation of rules.
Presently there are 448
articles, 25 parts and 12 schedules in Constitution. While earlier, there were 395 Articles, 8 Schedules and 22 Parts.
Constituent Assembly: Some historical Points
They are the groups of people who draft the constitution group of people who draft the constitution.
They are the groups of people who draft the constitution group of people who draft the constitution.
In 1934 M.N Roy said that we need a
constitution.
l In 1935 INC
officially Accepted the proposal
l In 1940 The
Queen accepted the offer in “August”
l In 1946 The
Cabinet Mission Plan was started.
l There were 193
members from Princely States and 296 members from General States.
Salient Features of Constitution
1.
It is a written Constitution
2. It is a longest constitution which include (Geographical
condition, Borrowed from other nations, How government should work etc)
3.
It is a Blend of Rigid and Flexible
4.
Parliamentary Form of Government (Adopted
from UK)
5. Independent Judiciary and Integrated form of
Government (Adopted from US)
6.
Federal Form of system with unitary bias
7.
India is a secular place with welfare states.
8.
(61st Amendment in 1988) Right
to vote age reduced from “21 to 18 years”
9.
Emergency Provision
- Ø
National
- Ø
State
- Ø
Finance
JUDICIAL SYSTEM OF INDIA
Introduction
The Judicial system of India consist of Judges
and other Magistrates. They form the bench or the core of Judiciary System. Judiciary is responsible to
ensure and re-enforce law and order.
The Judiciary System of
India consist of:
1.
Supreme Court
2.
High Court
3.
District Court or Subordinate Court
The Supreme Court
The Supreme Court
According to the constitution, the supreme
court of India is the final court of appeal. It has the Chief Justice of India,
along with 33 Judges. If the Supreme
Court makes a Law, it is binding on all other courts of all States and Union
Territory under Article 141.
The eligibility to become a Chief Justice is:
l The Judge in one High
Court or more, for at least 5 years or advocate in High Court for at least 10
years.
l A distinguished Judge
in the opinion of the President of India.
High Courts
High Courts
The second in hierarchy comes High Courts, generally one for each state of India.
Mumbai High Court is the oldest high court in India. The High Courts are vested with original, appellate jurisdiction. They also exercise superintendence and administrative functions over these district courts under Article 227 of the Constitution of India. Eligibility for a High Court
Judge is:
1. He should be a citizen of India.
2. An advocate should have at least 10 years of
practice in any court.
District Courts
These courts are subordinate to the High Court of respective states. It
is established according to the population distribution of the district and
states, It look after the Civil and Criminal matters of the district.
l
Hierarchy of Courts
The Hierarchy of Courts in India basically
include Supreme Court, High Court and District Courts. The Supreme Court is placed
at the topmost position of the the entire judicial system of the country. The
Supreme Court, which is the highest authority in The Hierarchy of Court in
India, deals with the cases related to conflict between the Central Government
and the State Government or between the government of two states.
In the hierarchy of courts in India, Supreme
court is followed by the High Courts. There are total 24 High Courts across the
states in the country. Each and every high court has the power to interfere with the
proceedings of the lower courts. The Apex Court in India, Supreme Court can change the decisions made by the High Courts of India. There
is also the system of original appellant jurisdiction in some of the High
Courts, like those of the Mumbai, Kolkata and Chennai.
The Lok Adalat are the last level of court under
the hierarchy of courts of India, which are basically the voluntary agencies and non permanent convenience courts at the disposal of Public .
These agencies are engaged in solving the disputes with the help of various
peace-making processes.
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