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Legal studies text book class xii
BA LLB (HONS.)
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Shiksha Kendra, 2, Community Centre, Preet Vihar, Delhi-110 301 India
####### CENTRAL BOARD OF SECONDARY EDUCATION
Legal
Studies
CLASS - XII
Legal Studies Class II
Price: `
First Edition 2014, CBSE, India
Copies: 2000
Published By : The Secretary, Central Board of Secondary Education, Shiksha Kendra, 2, Community Centre, Preet Vihar, Delhi-
Design, Layout : Multi Graphics, 8A/101, WEA Karol Bagh, New Delhi-110005 Phone: 011-
Printed By : Dee Kay Printers 5/37A Kirti Nagar Indl. Area, New Delhi - 110015 Phone: 25938138, 25414260
This book or part thereof may not be reproduced by any person or agency in any manner.
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The importance of learning about the essential nature of law and the concerned legal systems cannot be overstated. Familiarity with law enhances one's understanding of public affairs and provides a clearer idea about one's rights and obligations as a citizen. It may also be helpful in eliminating some of the myths about law. Another advantage is that an understanding of law can undoubtedly encourage talented students to pursue a career in law-an objective which is laudable in its own right.
The objective of introducing legal studies at the Class I and II level is a modest attempt at providing young people a grasp of some of the essential elements of law that govern our lives. The course seeks to provide a historical background and evolution of our legal system. The development of the Common Law system in India and the establishment of various types of courts mark important milestones in our legal history. An understanding of these developments and our own legal system is a key to grooming good citizens. In addition to this, the Legal Studies course seeks to introduce students to some topics of practical utility including certain substantive areas of law such as torts, contracts, property, concept of rule of law, principles of justice, the differences between criminal and civil cases, various forms of dispute resolution, rights available to the accused at various stages of the criminal investigative process, some of the key components of Human Rights, etc.
The syllabus of this course as well as the content of this book is framed in a way that has objectives beyond aspiring one to undertake a formal law degree upon graduating from grade II. The materials presented in the two volume books (grade I and II) offer basic background on what law is all about both in domestic as well as international contexts and serves to benefit those interested in pursuing a law degree or preparing for other competitive exams which require a relevant legal component. While these two purposes have been some of the main motivating factors behind launching this course, preparing syllabus and writing the book to adequately suit the standards of senior secondary level students have been an extremely challenging process. The complex legal materials had to be selected and simplified enough for the general understanding of students. This may sometimes lead to the ongoing criticisms of less or over simplification and leaving out many other relevant areas and issues in every topic or merely presenting information. However, there are instances where information and analysis are inseparable. All sources referred to in this work have been attributed at the end of every section. Finally, the process is continuous; there is an ongoing evaluative mechanism in place to help us revise, update and re-work this effort to ensure we continue to respond to the needs of the students, teachers and others alike.
Special thanks are due to the Study Material Development Committee of Legal Studies, its Convener Prof. James J Nedumpara and Dr. Sadhana Parashar, Professor & Director Academics, Research, Training & Innovation, CBSE for guiding the team and Mr. Ram Shankar, Assistant Professor & Joint Director, CBSE for academic input, editing and overall co-ordination.
We would appreciate your comments and feedback on the contents of this book and they would be considered for future editions.
Vineet Joshi, IAS Chairman, CBSE
Foreword
Acknowledgement
Advisory Committee
Shri. Vineet Joshi, IAS, Chairman, CBSE. Dr. Sadhana Parashar, Professor & Director (ART&I), CBSE.
Material Production
Prof. James J. Nedumpara, Associate Professor, Jindal Global Law School, OP Jindal Global University, Sonipat, Delhi. Mr. Sandeep Kindo, University of Wisconsin – Madison, USA. Ms. Geetanjali Sharma, Cambridge University. Ms. Prem Raja Kumari, Advocate, Chennai. Mr. Kinshuk Jha, Assistant Professor, Jindal Global Law School, Sonipat, Delhi. Mr. Ram Shankar, Assistant Professor & Joint Director (GA&E), CBSE.
Editing
Prof. (Dr.) K. V. Joseph, Trivandrum, Kerala. Prof. James J. Nedumpara, Associate Professor, Jindal Global Law School, OP Jindal Global University, Sonipat, Delhi. Ms. Swagata Sen Pillai, Founder Director, Kinkini Dhvani Institution of Performing Arts, New Delhi. Mr. Ram Shankar, Assistant Professor & Joint Director (GA&E), CBSE.
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Supreme Court of India
High Court
District and Sub- Ordinate Courts
Civil Courts
Criminal Courts
Specialized Tribunals
Service Tax Consumer Labour
Unit: iiar
To Understand the Following Concepts
Common law, Adversarial system of law, Due process of law, Public Interest Litigation, Impartiality of judges, Judicial review, Separation of powers, Division of powers, Checks and balances, Basic structure, Collegium system in appointment of judges, Impeachment.
A. Structure, Hierarchy of Courts, and Legal Offices In India
1. Structure & Hierarchy of Courts in India
The Constitution of India lays out the framework of the Indian judicial system. India has adopted a federal system of government which distributes the law enacting power between the Centre and the States. Yet the Constitution establishes a single integrated system of judiciary comprising of courts to administer both Central and State laws. The Supreme Court located in New Delhi is the apex court of India. It is followed by various High Courts at the state level which function for one or more number of states. The High Courts are followed by district and subordinate courts which are known as the lower courts in India. To supplement the functioning of the Courts, there exist specialised tribunals to adjudicate sector specific claims such as labour, consumer, service matter disputes.
Supreme Court of India
The Supreme Court of India came into being on 28 January 1950. It replaced both the Federal Court of India and the Judicial Committee of the Privy Council which were at the apex of the Indian court system, under the colonial era. The Constitution of India
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Tribunals
Apart from these judicial bodies, Indian judiciary is also characterised by numerous semi-judicial bodies involved in dispute resolution. These bodies function as semi or quasi-judicial bodies because they may consist of administrative officers or judges without a legal background. Yet they function in their judicial capacity and hear relevant legal matters and settle claims between the parties.
Tribunals have been constituted under specific constitutional mandate enshrined in the Constitution of India or through legal enactments, e. a law passed by the legislature. Their creation aims at increasing efficiency in resolving disputes and reducing the burden on courts. Examples of some of these tribunals include: Central Administrative Tribunal (CAT) for resolving the grievances and disputes of central government employees, and State Administrative Tribunals (SAT) for state government employees; Telecom Dispute Settlement Appellate Tribunal (TDSAT) for resolving disputes in the telecom sector in India; and the National Green Tribunal (NGT) for disputes involving environmental issues. Some of these tribunals function with regulators. Regulators are specialised government agencies that oversee the law and order compliance in the relevant government sectors. For example, one of the tribunals TDSAT functions alongside the regulator, TRAI (Telecom Regulatory Authority of India) in formulating laws and policy for resolving telecom disputes in India. Therefore these tribunals complement and supplement the role of courts in maintaining law and justice in the society.
Let us Ponder India has no court of appeal unlike the UK. The Law Commission has, in its 227th report, recommended setting up four regional benches of the Supreme Court in Delhi, Chennai/Hyderabad, Kolkata and Mumbai. However, the Full Court of the Supreme Court has rejected the Law Commission's suggestion for establishing a Constitutional Bench in Delhi and Cassation Benches in the four regions. The Indian Supreme Court hears more than 50,000 cases a year. The UK and US Supreme Courts, on the other hand, hear less than 100 cases a year on average. India, unlike the US, has a unified judicial system. So each State does not have a separate hierarchy of courts that adjudicate state laws. Discuss the benefits and demerits of having regional benches for Supreme Courts in India.
2. Salient Features of Indian Judiciary
India as a Common Law Jurisdiction
Taking its precedence from the British tradition of 'common law', India has adopted a similar model. Under this scheme of the common law system, the decisions, orders and judgments developed by the judges in India help in the creation and development of laws and legal principles, which becomes binding precedents for all
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subordinate courts in the hierarchy. Therefore, courts play a vital role in creating laws, especially where gaps in law exist, and the legislature or executive have failed to enact laws. Thus, apart from administering civil and criminal justice, courts and judges serve a vital function in the federal set up of the country. Opposed to this model, is a concept of civil law system followed in countries such as Germany, Russia, and Continental Europe. The main difference between common and civil law is with respect to the source of law. Under common law, judiciary can make laws through judicial decisions of courts; however under civil law, only the legislature or executive has the power to create laws and rules. This salient feature of Indian judiciary in following a common law model further strengthens the role of courts in India. Adversarial Model of Dispute Resolution Courts in India follow the adversarial system of adjudication as opposed to the inquisitorial model followed in several civil law countries. In an adversarial model, the role of lawyers representing the party becomes vital. Lawyers of the opposing parties present their cases before a neutral judge who in turn provides a decision based on the merits of the case, as presented by the lawyers. In the inquisitorial system of law, on the other hand, judges are more pro-active in adjudicating the matter. Rather than acting as neutral judges, they have rights to inquire and probe into the matter, much like a police. Here the role of lawyers representing the party and the role of judge cumulatively becomes important in determining the manner in which a civil case or criminal trial proceeds.
Let us Ponder Choose a civil law country in the world that follows an inquisitorial model of legal system. In this context, find out the main differences in the legal systems between India and the chosen country? Discuss your findings in class.
3. Attorney General of India and Law officers in India The discussion on the structure of Indian judiciary would remain incomplete without an explanation of law offices and officers appointed by the central and state governments in India. Certain law offices at the Union and State level exist to advise the executive wing of the government. These law officers are taken up by law officers, who derive their mandate either from the Constitution or other statutory enactments and rules. The Attorney General is the first legal officer of the country. The Attorney General of India is appointed by the President of India under Article 76 of the Constitution, which states that he can hold the office during the pleasure of the President. The Attorney General must be a person qualified to be appointed as a Judge of the Supreme Court, possessing adequate legal practice or have served as a
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of the same coin. In this context, one must understand the reasons for granting a special status to the judiciary: First, Judiciary's independence is linked to its role as the watch-dog in a democracy. It monitors and maintains the checks and balances over the other arms of the government. Thus judiciary emerges as a mediator when any organ of the government exercises 'excess power' which tends to violate the larger societal or individual interest. For instance, the Indian Police has extensive powers for crime detection and gathering evidence for prosecution of criminals. It is common for the police to interrogate suspect criminals in-order to gather the best evidence of the crime. However such powers should not impinge upon the rights of the accused or the suspected criminal. An accused cannot be coerced into giving statement pointing to his/her guilt. This right has been constitutionally guaranteed to the accused under Article 20(3) of the Constitution, which states: "o person accused of any offence shall be compelled to be a witness against himself". Judiciary steps in when such delicate interests are at loggerheads. Similarly, when there is a thin line of difference as in case of a police exercising their power to gather witness, in the exercise of the 'legitimate' and 'excess' right of a state organ, the role of judiciary becomes vital. Second, in-order to ensure that constitutionally guaranteed freedoms such as freedom to speak in public or peacefully assemble, are interpreted as per the true constitutional philosophy, judiciary has been kept free from any external pressures. This is particularly useful when judiciary is interpreting a case of conflict between say between the government (political party in power) and certain protesting people of the civil society who have peacefully articulate their opinions on social issues for example, crime against women. Third, Judiciary acts as a guardian of fundamental rights which are constitutionally granted to every citizen in India. Independence of judiciary was carved out during the formation of Indian Constitution as India was transitioning from a feudal to a democratic order. It was done to fully translate the well-knit provisions of extensive rights guaranteed under the Constitution into the lives of average citizens. Our Constitution grants us unique rights such as: 2 Civil and political rights- e. the right to life; right to freedom of discrimination based on religion, race, caste, sex or place of birth. 2 Economic, social and cultural rights- e. freedom to practice any religion; protection of interests of minorities. An independent and impartial Judiciary has empowered Indian citizens and performed this role. Illustratively, one may look into the role of Court in giving an
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expanded meaningto Article 21 of the Indian Constitution which talks about a general right to life and personal liberty. For example, within this freedom, the Supreme Court has held that a street vendor has a right to operate on streets as selling products on street is linked to his livelihood and daily living which is protected under Article 21. Similarly, the Supreme Court has also stated that those who are aged, disabled and destitute in India including men and women have a right to food, which is most essential for their survival. State has a corresponding duty to provide them with food. This right has been read into the general right under Article 21. Therefore, the Court is performing the role which it was granted at the time of the drafting of Indian constitution. Even though the drafters did not include specific rights such as livelihood and food, within the constitutional ambit of enforceable fundamental rights, they are now made available to the citizens of India as matters of rights. This has been possible only by the interpretation and rule making function of the courts in India.
In the domain of criminal law as well, independence of judiciary is linked to the granting of a fair trial to the accused. This becomes extremely important even when the accused are foreign nationals or persons who have committed crimes against the state, e. terrorists.
Independence of judiciary is vital for the respect of due-process of law. Due process of law means that the State must respect all the legal rights that are owed to a person and confirm to the norms of fairness, liberty, fundamental rights etc. Only an independent judiciary can make this concept operational. History has evidenced that whenever the independence of judiciary has been disturbed, it has directly impacted upon the due process of governance and rights granted to average citizens.
These lessons teach us that even in grave political circumstances, the rights of citizens should not be compromised and this could only be possible through an independent and impartial judiciary. Therefore independence of judiciary remains a vital and core principle even in the modern democracy.
Let Us Ponder Are there examples of non-independent judiciaries in the world? Find examples of social or political events and occurrences in newspapers or other sources that suggest some countries may not have independent judiciary.
2. Role of Indian Judiciary
The Role of Courts
Indian judiciary comprises of the Supreme Court, High Court, Sub-ordinate Courts and other Tribunals. The role of these courts along with their composition, powers and procedures for functioning have been elaborated in the Constitution.
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adviser. Court's advisory jurisdiction may be sought by the President under Article 143 of the Constitution. This procedure is termed as "Presidential Reference" and is recognised as the 'Advisory jurisdiction' of the Court. Under this scheme, President may refer any question of law or fact of public importance. However, it is not binding on the Supreme Court to answer questions raised in the reference. In the last more than sixty years, only a handful of references have been made. The Supreme Court can refuse to provide its advisory opinion if it is satisfied that the questions are either socio-economic or political in nature.
So far we have seen the constitutional imperatives that permit the Supreme Court to adjudicate and advice on disputes coming from the sub-ordinate courts, individuals exercising writ jurisdiction and the President of India. In the recent years, the Supreme Court has relaxed its locus standi (meaning the right of a party to appear and be heard by a Court) and has permitted public spirited citizens and civil society organisations to approach the Court on behalf of the victims for better administration of justice. On other accounts, the Court has on its own initiative started cases of public importance. For instance, it has summoned and reprimanded state authorities for their apathy and lack of diligence in running child care homes in the states. All, this has been possible through the judicial activism of the Supreme Court through Public Interest Litigation (Janhit Yachika) (PIL). This extra-ordinary jurisdiction has been invoked either through writs or even by writing letters to Judges, whose modalities are maintained under the guidelines for PIL enacted by the Court.
The first ever PIL is listed as Hussainara Khatoon v. State of Bihar and dates back to 1979. A public interest activist lawyer filed this case on behalf of thousands of prisoners of the Bihar jail against the inhuman conditions of the prison. A Supreme Court bench headed by Justice P. Bhagwati declared the right for free legal aid and expeditious trial of these prisoners, which ultimately led to their release. Since then, PILs have encompassed several issues including socio-economic rights (freedom from bonded labour), legal entitlements (right to food; right to work), environment issues (clean air and water) and political reforms (disclosure of assets by members of the executive; disbursement of natural resources done by the government).
The progress of PIL has thus seemed to incorporate several issues. Yet common characteristics encompass these litigations. These characteristics include:
i) PILs can be termed as non-adversarial litigation that pits the interest of one party over the other. Rather than focussing on traditional litigation of adversary character, PILs are recognised as tools for social change.
ii) PILs are based on the tenets of citizen standing and representative standing which expands the rights of third-parties to approach the Court.
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iii) PIL from its inception is modelled on remedial nature which aims at creating a dynamic, welfare oriented model of judiciary. PIL thus incorporates the Directive Principles whose claims cannot be brought directly to the Courts, into the domain of fundamental rights under Part III of the Constitution, which can be invoked before the Courts as a matter of rights by the citizens of India. Therefore PILs are creating new rights and laws within the realm of the state. These laws are also democratising citizen's access to justice, thereby strengthening the democracy in India. iv) PIL further strengthens the role of judiciary as a monitor and watch-dog agency. Fear of being dragged to the Court via PIL has improved the quality of several social institutions in the country such as jails, protective homes, mental asylums etc. However, with the advent and growth of PILs, they have also been misused for private gains, and led to frivolous litigation on unnecessary issues. They have also been criticised for judicial over-reach and stepping into the shoes of legislature.
Let us Ponder Are PILs replacing or supplementing the role of legislature which is the primary law enacting organ in India?
High Courts and Lower Courts The High Courts function as the organs of judicial administration at the State-level. Similarly, the lower courts function as centres of civil and criminal justice at the district level. Lower courts as explained above comprise of district and sub-ordinate courts. Districts Courts are usually Courts of first instance, where litigants proceed for their disputes. These Courts have set territorial and pecuniary limits when accepting cases of civil nature. A similar hierarchy exists in the criminal courts at the sub-ordinate level. Once matters are adjudicated by these courts, they proceed to the High Courts on appeal. Thus sub-ordinate courts are mainly vested with the establishment of facts while the appellate courts deal with interpretation of statues the correct application of law. The High Courts have power to issue within their jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose. (See, Part I, Legal Studies) This writ jurisdiction is similar to the Supreme Court of India. The role of High Court also becomes similar to the Supreme Court in the exercise of public interest litigation. Furthermore, each High Court has powers of superintendence over all Courts within its jurisdiction. It can call for
Legal studies text book class xii
Course: BA LLB (HONS.)
University: Dr. Ram Manohar Lohiya National Law University
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