Wednesday, December 22, 2010

The Law and Legal System in India

The Law and Legal System in India.

Courts in India

The courts,law and lawyers play important role in the society ,you can not imagine a society without government and judiciary.They are indispensable part of state or society.The state in other words can defined as "society organized for law".If there is no rule of law in  the society,that society is not peaceful and stable and the anarchism prevails in that society.
The Indian legal system inherited English Common law system with written constitution and written laws,unlike English system with unwritten constitution.The laws in India are as old as 1836 and Indian Constitution is lengthiest and longest living document in the world with more than 100 amendments since 1951.There are more than 10,000 courts in India with one Supreme Court,21 High Courts and other courts ,which are called lower courts or sub- ordinate judiciary [sub-ordinate to High Courts].

The division of law into criminal and civil is purely for administration of justice[terms are not defined any where],courts ,where civil cases are dealt are known as civil courts and courts,where criminal cases are dealt are known as 'Criminal Courts[Munsif level courts deal both cases ]The proceeding in civil courts are known as 'civil proceeding' and governed by procedure prescribed in 'Civil Procedure Code' .The proceeding in criminal courts are known as 'Criminal Proceeding governed by procedure prescribed in the 'Criminal Procedure Code'.

There are certain proceeding which can be categorized both 'Civil 'and 'Criminal' proceeding',but it is difficult to differentiate between 'Civil' and 'Criminal proceeding'.The Supreme Court once observed that "the character of the proceeding depends not upon the nature of the tribunal ,which is invested with the authority to grant relief ,but upon the nature of right violated and the appropriate relief which may be claimed and ultimately may be granted.........."  
 
Some of the cases under  Motor Vehicles Act ,laws relating to Weights&Measures,Petty Thefts and offences under Cattle Trespass Act are tried summarily and disposed off with out adhering to any lengthy procedure.

The Quasi -judicial bodies[MRTP/Competition Commission of India ,Consumer Commission/forum's etc] and specific tribunals like industrial,labour,service,tax,company law boards,water,electricity or armed forces tribunal don't necessarily follow the rigid procedural laws like regular courts.
The Commissions under statutory law were set up for specific purposes like Human Rights Commission[both national &state],S.C&ST Commission,B.C Commission,Minorities Commission,National Commission for children,National Women's Commission&State Women Commission etc.

Laws in India

There are about 3000-3500 central statues in India[see Indiacode] and state enactment around 25000 to 30,000.The most laws are outdated more and needs to be revisited and repealed.The Jain Commission on Review of Administrative Law identified around 1300 statues for outright repeal. Some laws have become out- dated in view of changes in society and needs to be revisited,some sections needs to be deleted or changed in some laws.The purpose of Law commission is study the existing laws and suggest necessary changes as per prevailing circumstances in the society.There is considerable criticism by experts that most laws are not being implemented effectively or some laws are being  misused.In some states ,there are state law commissions ,who are also working on areas of law reform.


There are no effective laws in many areas  to regulate Credit Cards/Debit Cards ,ATM,hire purchase,electronic data exchanges,government liability in tort cases ,certain areas in IPR, discrimination to HIV / Homosexuals ,certain labour laws violations in private sector,online pornography and child pornography ,satellite TV regulations[showing excessive violence &sexual visuals] etc.There is a need for statutory reform to fill up gaps in the existing laws.


There are more 20-25 million cases pending in various courts in India[35 millions if we include quasi judicial forums].The ratio of judges population very poor ,when compared to other countries.There about 27 judges in Supreme Court ,about 530 High Court judges and 900 sub-ordinate judges[about 335 District judges] [figures may not be accurate].It is misnomer to say citizens are largest litigant ,ironically government is largest litigant in country [with amount of cases filed by government in various courts]
Lawyers
There are  more 4,50,000[ as  2009-10] practicing in various courts in India and all of them regulated by Advocate Act ,1961.There is intense competition among lawyer's fraternity and standards of lawyers is not encouraging and there is feeling there is dearth of quality lawyers in the country.There is concern that lawyers profession is not attracting talented law graduates and most law  graduates of National Law schools not showing any inclination to practice in courts of law,rather more inclined to take up jobs in corporate sector and foreign law firms, due to attractive pay-packages.
The Bar Council of India proposes to hold All India Bar Examination for fresh law graduates to enter the profession of law on the ground that present standard of legal education is not satisfactory and poor .The said exam is challenged in courts of law and necessity of such exam is still debated by experts.The Supreme Court also examining the issue of conducting Bar examination as several writ petitions were filed in High Courts and Supreme Court.

There is debate about the entry of foreign law firms in view of WTO regulation  ,where signatory state has to open the service sector .Most experts are opposing the entry of foreign law firms.It is alleged that some law foreign law firms have already opened their off-shore offices  in the name of LPO[Legal process outsourcing] and the issue is being examined by the High Court of Chennai.

"Hundreds of lawyers are practising in this country. I know many of them do not have sufficient work. Some of the young members of the Bar still face several difficulties. I can only wish them all success in their career. My only advice is - what is required for the young lawyers at the Bar is clear head, a good memory, strong commonsense and aptitude of analysis and arrangement. If you possess these qualities, difficulties in your profession would vanish, like the morning mist before the Sun." - Hon’ble Mr. K.G. Balakrishnan, Chief Justice of India in  Supreme Court Bar Association Farewell  Function.(New Delhi, May 11, 2010)

"I wonder what a lawyer practicing in 1950 would feel if he were today to enter the Supreme Court premises on a Monday or a Friday. He would be appalled at the huge crowd of lawyers and clients thronging the corridors, where one finds it extremely difficult to push one’s way through the crowd to reach the Court hall. When he enters the Court hall he finds an equally heavy crowd of lawyers blocking his way.I do not think that any of the senior counsel practicing in the Supreme Court, during the first 3-4 decades of the existence of the court, would be able to relate to the manner in which we as counsel argue cases today. In matters involving very heavy stakes, 4-5 Senior Advocates should be briefed on either side, all of whom would be standing up at the same time and addressing the court, sometimes at the highest pitch possible."-K.K Venugopal  ,while addressing R.K.Jain  Memorial Lecture,Jan,2010.

Sources : The article is based on information gathered through various websites and above mentioned facts/figures  may not be accurate and meant for reference purpose only. 
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LAW AND SOCIETY