Nature of the Indian Legal System

NATURE OF THE INDIAN
LEGAL SYSTEM
V. S. Deshpande*
Revised by Thomas Paul**
In counting the trees, one is apt to miss the woods. A study of the different
branches of the Indian law may still elude glimpses of the Indian legal
system as a whole. Hence this opening chapter.
What is a legal system? A legal system encompasses a set of legal
principles and norms to protect and promote a secure living to its subjects
in a cultured society. It recognizes rights, prescribes duties of people and
provides the ways and means of enforcing the same. To achieve this
particular objective, the legal system considering the sociological, economic
and political conditions in the society designs its own goals and evolves a set
of principles/rules/laws which help the society to attain its identified goals.
A system connotes a coherent whole. It is animated by a philosophy or ideas
which connect its different parts leading to a harmonious working. The
corpus of the system is its variable elements. Changes in the laws may result
from legislation and judicial decision. But the concepts and methods of the
system are its constant elements.1
In the material content of laws there is
much overlapping among the laws of different countries. The major legal
systems of the world may be classified as (1) the common law, (2) the civil
law, (3) the socialist legality and (4) religious systems of law. While the
Indian legal system is basically a common law system, it contains elements
of the other three systems as well. It is an open system taking in what is
most suitable to our needs.
The common law base
British rule in India introduced the common law into this country. This
provided the basis of our present legal system. The significance of the
coming of the common law to India has not received adequate recognition
in spite of the attention called to it by several legal scholars.2
When Holmes
* Formerly Chief Justice, High Court of Delhi.
** Associate Research Professor, Indian Law Institute, New Delhi.
1. David and Brierley, Major Legal Systems in the World Today, pp. 10-11.
2. Pollock, Expansion ofthe Common Law, 1904; Sir George Rankin, Background to Indian
Law; Vivian Bose, The Migration of the Common Law: India, 76 Law Quarterly
Review, 1960, p. 42 and M. C. Setalvad, The Common Law in India, 1960.

2 INDIAN LEGAL SYSTEM
said that "the Ufe of the law has not been logic: it has been experience,"3
he
made an observation the profundity of which was greater than what even he
had realised. After all, what is law and what is a legal system? They must be
pervasive to envelop the whole life of the individual and the state. They
cannot, therefore, consist merely of legislation or rules. While an author who
wants to write on civics, political science or government can describe the
subject fully in all its aspects, a legislature or a rule-making authority can
never attempt to make such comprehensive code as"will apply to every
individual or state activity. Necessarily, the legislation and rules must,
therefore, apply only to certain aspects of our social life leaving out large
spaces of our life to be governed by the general principles of law or
common law. The relationship of common law and statute law in England
has been described as follows:
The most fundamental part of our law is still common
law The statutes assume the existence of the common law;
they are the addenda and the errata of the book of the common
law; they would have no meaning except by reference to the
common law.4
How does the law develop into a system? Legislation and rules may
provide the law for certain individual and social activities. The rest of the life
of the society has to be regulated by custom, general principles of right and
wrong and of justice, equity and good conscience. These principles are
either observed by members of the society in their own good sense or are
enforced by judicial decisions. The development of these principles over the
centuries by courts forms the present state of common law. Since the law-
making function of the judges in India is the same or even more
comprehensive due to the power of judicial review of legislation exercised
only by our judges which is not given to the judges in England, the
development of law by judicial decisions on the basis of the common law
principles in India follows the same pattern as has been followed in
England. When a question arises as to what the law is on a particular point,
we turn to legislation or rules which may exist. In their absence, we turn to
general principles and act accordingly. These principles are found embodied
in judicial decisions and are being created and developed every day by
judicial decisions. The proper approach to find out what the law is, a wide
one as stated above. The difference between a correct approach and an
incorrect approach is illustrated by the question of slavery. When an African
chieftain named Somersett captured by slave traders on the way to the
United States escaped from the ship and landed in England, his captor tried
to recapture him. Two English men petitioned for the writ of habeas corpus to
3. The Common Law 1,1881.
4. W. M. Geldart, Elements ofEnglish Law, p. 9.

NATURE OF THE INDIAN LEGAL SYSTEM 3
secure his release. Somersett's captor pleaded that he was doing nothing
illegal by slave-trading as there was no statute in England making slavery
illegal. Lord Mansfield rejected this plea and observed that the air of
England was too pure for a slave to breathe. To the enquiry where was the
law prohibiting slavery, Lord Mansfield, in other words, answered that the
law was in the "air" of England, i.e., it was in the legal and political climate
of England, in which the institution of slavery could just not survive for a
moment. As observed by Tripathi:
for being free and remaining free no legal justification need be
searched for or produced; freedom is presumed and is the rule;
restraint is the exception which must be established and justified
by reference to specific legal authority.5
On the contrary, the U. S. Supreme Court approached the question of
slavery in Dred Scott v. San/ord6
from the opposite standpoint. Instead of
raising the presumption that every man is free unless the law is to the
contrary, the court held that the liberty of property guaranteed by the Due
Process Clause of the Fifth Amendment of the American Constitution
disabled the legislature from making slavery illegal in as much as such law
violated the right of property of the slave owner.
In Additional DistrictMagistrate, Jabalpur v: Shivakant SbukL·7
the question
which arose was whether the right to personal liberty under the common
law and the relevant statutes became unavailable only because the
fundamental right to personal liberty guaranteed by article 21 was suspended
during the Emergency. It is submitted with great respect that the following
legal position might have been found relevant in considering the question:
(1) The common law, custom and general principles of justice, equity and
good conscience which are drawn upon by the courts both in England
and India provide the basis and the environment in which statutes are
enacted. It is a settled principle of interpretation of statutes that the pre-
existing common law and principles of justice, equity and good
conscience are not altered by statute law except to the extent of
repugnancy between the two.
(2) In spite of the march of statute law in England (as in India) it has been
observed that "it is only where constitutional law is concerned, in that
small but vital sphere where liberty of person and of speech are guarded
that it means the rule of the common law. For here alone has
Parliament seen fit to leave the law substantially unaltered and to leave
the protection of the freedom of individuals to the operation of the
5. Spotlights on Constitutional Interpretations, pp. 171-172.
6. 19 How. 393 (1857).
7. (1976) 2 SCC 521.

common law."8
The same observation would hold good in India
inasmuch as freedom of the individuals is assumed to be the rule of law
except insofar as statutes restrict it. Even in England, the sovereignty of
Parliament has meant, "the supremacy of the existing law so long as
Parliament was fit to leave it unaltered."9
It is well known that
Parliament identified itself with the cause of the supremacy of the law
and did not alter by statute the basic principle that the individual enjoys
all the liberties unless restrictions on them are placed by the statutes.10
(3) Judicial review of administrative action existed in India even before the
Constitution. The law courts could draw upon the common law
principles of justice, equity and good conscience and the relevant
statutes to correct illegalities in administrative action and give reliefs in
suits filed for that purpose. Even after the Constitution when High
Courts are empowered to exercise the power of judicial review of
administrative action under article 226 of the Constitution, these reliefs
can still be obtained by way of suits. This is sufficient to show that the
Constitution was not to wipe out the pre-existing law which was not
inconsistent with the Constitution. This is confirmed by article 372 (1).
The reason why the Constitution had to be made the supreme law was
that in addition to judicial review of administrative action, the superior
courts had to be given the power of judicial review of legislation. These
two powers of judicial review are distinct from each other and are
exercised at two different levels.11
The rule of law is, therefore, to be
distinguished from the rule of the Constitution or that of the higher law
in India. Even if the latter or a part of it is suspended when the
enforcement of certain fundamental rights is suspended during
emergency, the former would continue to operate. The suspension of
the rule of the Constitution or of the higher law is intended to make
legislation temporarily invulnerable. It can have, however, no effect on
the rule of the ordinary law which is directed mainly against illegalities
of administrative action. No difficulty is, therefore, experienced in the
co-existence of the Constitution with the pre-existing law. It is to be
noted that the fundamental rights are guaranteed expressly by article 13
only against inconsistent legislation. Similarly, the Constitution is
supreme law against any inconsistent ordinary law. A fortiori, therefore,
the fundamental rights and the rest of the Constitution would prevail
against administrative action. This should not, however, cloud our
understanding of the basic purpose of the Constitution which was to
provide the supreme law as against legislation. For, before the
8. E.C.S. Wade, Introduction to Dicey's Law ofthe Constitution, 10th ed., civ.
9. Holdsworth, A History ofEnglish Law, p. 187.
10. Ibid
11. V. S. Deshpande, Judicial Review ofLegislation, Chapcer Π.

commencement of the Constitution, ordinary legislation, however
unjust, had to prevail against the liberties of the people based upon the
common law or the principles of justice, equity and good conscience.
The effect of the Constitution was to place the fundamental rights and
other provisions of the Constitution above the ordinary law and to
protect them against any inconsistent legislation.
(4) While legislation can be challenged as being inconsistent with the
Constitution, administrative action may be reviewed on totally different
grounds such as being based on mala fides or irrelevant considerations or
being without jurisdiction or showing apparent error of law on the face
of the record, etc. The existence of the Constitution and the remedies
given by it are not a sine qua non for obtaining judicial review against
administrative action by way of suits even though a more expeditious
remedy may be available by way of writ petitions when disputed
questions of fact are not involved. It would appear, therefore, that the
suspension of the enforcement of a fundamental right during
Emergency should not affect the ordinary remedy of judicial review of
administrative action without seeking the enforcement of a fundamental
right as embodied in the Constitution and not challenging the validity of
any law but restricted only to the validity of administrative action on the
abovementioned grounds all of which have existed from before the
Constitution.
Even after the making of the Constitution and enactment of relevant
statutes, the ecology of the Constitution and the statutes, is formed by "that
part of common law which has been received in India as rules of 'justice,
equity and good conscience' as suited to the genius of this country".12
This
much of common law is in force in India as recognised by article 372 (1) of
the Constitution. A nine-judge Bench of the Supreme Court had this to say
about the common law in India:
It is well-known that the common law of England was applied as
such in the original sides of the High Courts of Calcutta,
Bombay and Madras, and that in the mofussil courts the
principles embodied in the common law were invoked in
appropriate cases on the ground of justice, equity and good
conscience.13
The Bench speaking through Subba Rao, C. J., further observed:
It has been held by this court that the said expression 'law in
force' includes not only enactments of the Indian legislatures but
12. Bar Council ofDelhi v. Bar Council ofIndia AIR 1975 Del. 200 at 202.
13. Superintendent & LegalRemembrancers. Corporation ofCalcutta (1967) 2 SCR 170 at 180.

also the common law of the land which was being administered
by the Courts in India.14
The rule of law
The first direct product of the common law system is the public law. The
most important principle of it is the rule of law. The rule of law implies that
government authority may only be exercised in accordance with written laws
which are adopted through an established procedure. It means "government
of laws and not of men." The principle is intended to be a safeguard against
arbitrary rulings in individual cases. The doctrine does not speak anything
about the 'justness' of the laws themselves, but simply how the legal system
upholds the law. The concept of rule of law is generally associated with
several other concepts like: (a) presumption of innocence - all individuals
are innocent until proven otherwise; (b) double jeopardy - individuals may
only be punished once for every specific crime committed. Retrials may or
may not be permitted on the grounds of new evidence; (c) legal equality - all
individuals are given the same rights without distinction to their social
stature, religion, political opinions, etc.; and (d) habeas corpus - term meaning
'you must have the body'. A person who is arrested has the right to be told
what crimes he or she is accused of, and to request his or her custody be
reviewed by judicial authority. Persons unlawfully imprisoned have to be
freed.
The classic description of the doctrine of rule of law by A. V. Dicey15
includes (1) the absence of arbitrary powers on the part of the Government
which always acts according to law, (2) legal equality, that is, no man is
above the law and that everyone is subject to the ordinary law of the land
and is amenable to the jurisdiction of the ordinary courts and tribunals, and
(3) the customary and the common law rights of the people resulting in
judicial decisions to form the general rules of constitutional law. Basically,
individual liberty was the outcome of the rule of law. It could not be
affected except in accordance with law. The burden was, therefore, on the
state or the public officials to show that their action affecting an individual
is justified by law.
The success of the rule of law in England was due to the co-operation
between the lawyers and the judiciary, on the one hand, and Parliament, on
the other hand. The rule of law and the sovereignty of Parliament worked
harmoniously in their common attempt to limit the power of the
executive.16
But the basic weakness of the rule of law based on ordinary law
14. DirectorofRationing andDistribution v. The Corporation ofCalcutta (1961) 1 SCR 158 and
V. S. Rice and Oil Mills v. State ofAndhra Pradesh (1965) 3 SCR 289 relied on.
15. Law ofthe Constitution, Chapter IV,
16. Supra note 8.

is that the spirit of the rule of law is perverted when legislation results in
unjust laws. With the freedom-loving tradition of the British people the
principle of parliamentary sovereignty did not come into conflict with the
rule of law because Parliament did not violate the spirit of the rule of law by
unjust legislation.
Originally the rule of law merely protected the individual from the
arbitrary actions of the state including the legislature. Later, the weaker
sections of the society who are exploited by those who wielded power had
to be protected by the state itself against private economic power. Inequality
in societies had to be removed with a view to establishing an egalitarian
order. The role of the state instead of being merely negative (abstaining
from interfering with the liberties of the people) became positive (to protect
the weak against the strong, the exploited against the exploiter and the poor
against the rich). In the International Congress of Jurists held in 1959 at
New Delhi, the very first clause of the report of the First Committee
reoriented the rule of law as follows:
The function of the legislature in a free society under the rule of
law is to create and maintain the conditions which will uphold
the dignity of man as an individual. This dignity requires not only
the recognition of his civil and political rights but also the
establishment of the social, economic and educational and
cultural conditions which are essential to the full development of
his personality.17
In concrete terms in India it meant that legislation to bring about
equality and social welfare to implement the directive principles of state
policy set out in Part IV of the Constitution would also be construed as
conducive to the broader concept of the rule of law and, therefore, in
consonance with the fundamental rights of the individual guaranteed by Part
III of the Constitution.
Rule of the Constitution or the higher law in India
Unfortunately, much British Indian legislation denied the enjoyment of civil
and political rights to the Indian citizens. The letters of the law, therefore,
went against the spirit of the law. Taking cue, therefore, from the earlier
American example, the Constitution of India was made the supreme law of
the land in 1950. The Constitution is based on the ideals of justice, social,
economic and political, liberty of thought, expression, belief, faith and
worship, equality of status and of opportunity and fraternity assuring the
dignity of the individual and the unity and integrity of the nation. The rule
of law was, therefore, placed on a footing higher than ordinary legislation.
17. J. Raz, "The Rule of Law and its Virtue," 93 Law Quarterly Review, 1977, p. 195.

Constituent power is, thus, superior to ordinary legislative power. Though
under the Constitution, the Parliament and the state legislatures have the
power to make laws within their respective jurisdiction; this power is not
absolute in nature. The Constitution vests in the judiciary the power to
adjudicate upon the constitutional validity of all laws. If a law made by the
Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law invalid
or ultra vires. Thus, unlike the British Parliament which is a sovereign body,
the powers and functions of the Indian Parliament and the state legislatures
are subject to limitations laid down in the Constitution.
Protection against constitutional amendments
The Constitution of India was apparently intended to entrench the more
permanent values cherished by the society, particularly in its part III. The
founding fathers wanted the Constitution to be an adaptable document
rather than a rigid framework for governance. Hence Parliament was
invested with the power under article 368 to amend the Constitution.
However, with the intention of preserving the original ideals envisioned by
the Constitution makers, the Supreme Court in Kesavananda Bharati v. State of
Kerala™ held that Parliament could not distort, damage or alter the essential
features or the 'basic structure' of the Constitution under the pretext of
amending it. The enunciation of this doctrine can be said to be an attempt
to preserve the spirit of the rule of law from the otherwise unlimited power
of Parliament to amend the Constitution. Thus, Parliament's power to
amend the Constitution is not absolute and the Supreme Court is the final
arbiter over and interpreter of all constitutional amendments. Since what
constitutes 'basic structure' is not spelt out in the Constitution, the features
that constitute the same cannot be laid down until another authoritative
pronouncement is rendered by the apex court. However, it can be said that
the sovereign, democratic and secular character of the polity, rule of law,
independence of the judiciary, fundamental rights of citizens, etc. are some
of the essential features of the Constitution.
Fundamental rights
The provisions of part III of the Constitution which enumerates
fundamental rights are more elaborate than those of any other existing
written Constitutions of the world and cover a wide range of topics. The
purpose of the fundamental rights is to act as limitations not only upon the
powers of the executive but also upon the powers of the legislature. These
rights include individual rights common to most liberal democracies such as
equality before the law or the right to equality, tight to freedom of religion,
18. (1973) 4 SCC 225.

right against exploitation, cultural and educational rights, freedom of speech
and expression, freedom of association and peaceful assembly, and the right
to constitutional remedies for the protection of civil rights such as habeas
corpus.
Independence of judiciary
India is credited with having the most powerful and independent judiciary in
the world. Indian judiciary owes its origin to the judicial system which
existed in the British India. After independence, the constituent assembly,
which drafted the Constitution provided for the establishment of a three-tier
judiciary which is completely independent of the other two organs of the
state - the executive and the legislature. The reason for making judiciary
independent was that during the British rule executive and judicial functions
were combined in the collector-magistrate in a district, making him a local
dictator. The framers of the Constitution did not want this to be repeated
and hence established a judicial system under which from the highest court
of the land to the lowest, they function in a spirit of judicial independence,
i.e., independent of the executive and the legislature. Independence of the
judiciary is thus a basic structure or a basic feature of our Constitution.19
There are two dimensions of judicial independence: (a) individual
independence of a judge; and (b) institutional or collective independence of
the court or tribunal of which that judge is a member. The Supreme Court
stands at the apex of the judicial hierarchy along with high courts and
subordinate judiciary, all with specified powers and functions.
Change in the concept of law
The British tradition introduced in India was that the function of the judges
was to interpret and apply the law and not to make the law. The American
Constitution gave a wider role to the judges by making legislation itself
subject to judicial review. Opinions have been expressed in England by Lord
Hailsham, T. B. Smith20
and Sir Leslie Scarman,21
that a Bill of Rights
should,, be enacted even in England and be placed beyond the reach of
ordinary parliamentary legislation. But the majority of the English judges
prefer their modest role.22
The British view is based on the positivist
concept of law, which is the lawyers' view of the law. According to this
19. See S.P. Gnpta v. Union of India (1981) Supp SCC 87 at 223 and Shri Kumar Padma
Prasad v. Union of Indian (1992) 2 SCC 428 at 446.
20. BaskRights and TheirEnforcement, 1977.
21. English Law: The New Dimension, 1974.
22. Lord Devlin, "Judges and Law Makers", 39 Modern Law Review, 1976, p. 1 and Lord
Lloyd of Hampstead: "Do We Need a Bill of Rights?" 39 Modem Law Review, 1976,
p.121.

10 INDIAN LEGAL SYSTüM
view, anything is law if it meets the conditions of validity laid down in the
system's rules of recognition or any other rules of the system.23
But the
American Realist School and other jurists such as Lon Fuller24
emphasize
moral purpose of law and the necessity to allow the courts to have review
powers over legislation and administrative action to ensure conformity to
the rule of law. From the inception of the Constitution of India also a tug-
of-war between two views of law may be seen to be going on. One view is
that the final say as to what the law is must be with Parliament particularly
when Parliament resorts to constitutional amendments to make the
intention of the Constitution clear. On this view the judges should not make
innovations in law by construing the Constitution to reserve the last say to
the courts. The competing view is that the Constitution itself has intended
the lasting values enshrined in it to be beyond the day to day controversies
and that the function of the judges is to preserve these values by an
appropriate interpretation of the Constitution (e.g., the majority decision in
Kesavananda Bharati's case). This is not to thwart the will of the people, but,
on the contrary, to give effect to the same will as enshrined in the
Constitution with a view to ensuring to them a comparative permanence. It
is to be seen whether Parliament reconciles itself to this judicial view of law
and the judicial function either by refraining from amending the
Constitution to abrogate the doctrine of basic structure or features of the
Constitution as being unamendable, or by incorporating into the
Constitution the doctrine by further constitutional amendment.
Justice, equity and good conscience
Whenever statute law is absent, the judges, according to many state statutes,
are to be guided in deciding cases by principles of "justice, equity and good
conscience". Initially this expression was construed by the judges to mean
the rules of the common law except in so far as any particular rule was
unsuitable for being applied to Indian conditions. The judges have felt free
in scrutinizing the common law rules in their application in India. Certain
archaic or unjust doctrines such as actio personalis moritur cum persona (a
personal action dies with the person) or the doctrine of common
employment protecting the employer from liability in tort to an employee
for the fault of another employee, have been rejected by Indian judges as
being inapplicable to Indian conditions. It would appear that "justice, equity
and good conscience" should provide a strong basis to the law courts in
India to decide cases not covered by statutes in constructive spirit to find
out jüs,t solutions of new problems of law which are ever arising in the law
courts. The statutes expressly empower the judges to act on these principles.
23. Hart, The Concept ofLaw, 1961 pp. 97-107.
24. The Morality ofLaw, 2nd ed., Chapter 2.

These principles are, therefore, expressly made enforceable by the law
courts. It may be further suggested that the preamble and the directive
principles of the Constitution have also to be borne in mind by the law
courts as the sources of the principles and policies which may be drawn
upon by the judges in deciding cases. They may either act as substantive
sources of judicial law-making25
or may guide the construction of statutes
when more than one construction is possible.
Sanctity of property and freedom of contract
Freedom in dealing with property formed an essential part of the conception
of individual liberty in the common law. Freedom of contract was also
equally basic to the concept of liberty. With the growth of social
responsibility and then of socialism, both these principles became subject to
regulation.26
The same development took place in India. The abolition of
landlordism, improvement in the tenure of the tillers of the soil and finally
imposition of ceiling of land holdings in the rural as well as urban areas in
India show a continuous trend to eliminate disparities in the property
holdings and to confer rights on the tillers of the soil. Similarly, freedom of
contract has been restricted as between the employer and the workman by
the Industrial Disputes Act, 1947 and other pieces of industrial legislation.
Restrictions have been placed on sellers to protect the consumers by the
Prevention of Food Adulteration Act, Essential Commodities Act,
Consumer Protection Act etc. A masterly survey of the inequalities and the
exploitation to which the doctrine of laissez-faire led and the imposition of
legislative limitations on freedom of contract would be found in the
decision of a seven judge Bench of the Supreme Court in Vishnu Agencies
Pvt. (Ltd.) v. Commercial Tax Officer and others,27
in the leading judgment of
Chandrachud, J., (as he then was).
Justice or truth
At first sight it would appear strange that there should be any conflict
between justice and truth. Normally, these two objectives go together.
Truth, however, has a narrower meaning denoting merely formal justice to
be done by the court in a litigation between two parties. If the parties are
unequally situated and the judge acts only as an umpire then the scales are
weighed in favour of the party which is financially better off and against the
party which is financially worse off. The unequal financial positions of the
parties lead to built-in injustice in our legal system. For, ours is an adversary
system in which the judge is strictly in the position of an umpire. Article
25. E.g., as in R. R. Dalavai v. State of Tamil Nadu (1976) 3 SCC 748.
26. Ginsberg (ed.), Law and Opinion in England in the 20th Century, pp. 3 and 79.
27. (1978) 1 SCC 520.

39A of the amended Constitution, therefore, requires that the state shall
secure that the operation of the legal system promotes justice on a basis of
equal opportunity and that the state shall in particular provide free legal aid
by suitable legislation or schemes or in any other way ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities. This is also the reason why social, economic
and political justice (but not the individual justice between parties to
litigation) has been placed even above liberty and equality in the preamble of
the Constitution.
Adversary system
In a different context also our legal system puts justice before truth. This
refers to the position of the accused in a criminal case. Firstly, equal
protection of law is given to the accused by article 21 and clauses (1) and (2)
of article 22 of the Constitution. Secondly, the principal aim of our system
of criminal law and procedure is not to find out the truth, whether the
accused is guilty or not. If that were the aim the inquisitorial system or
accusatory system would have been more suitable. But we have adopted the
adversary system from the common law. Adversary system relies on the skill
of the different advocates representing their party's positions and not on
some central party, usually the judge, trying to ascertain the truth of the
case. Frankel has observed that "our adversary system rates truth too low
among the values that institutions of justice are meant to serve".28
He says:
The statistical fact remains that the preponderant majority of
those brought to trial did substantially what they were charged
with. While we undoubtedly convict some innocent people, a
truth horrifying to confront, we also acquit a far larger number
who are guilty, a fact we bear with much more equanimity.29
He finds that
Two means for controlling adversary excesses in the trial process
are intervention by the Judge and better training and regulation
of counsel. Both have been proposed, and attempted to some
extent. The second method is receiving serious attention today,
with high and persuasive sponsorship. Neither of the two
approaches, at least as they have been formulated thus far,
contemplates any basic change in the existing standards and
procedures. For this central reason, neither seems to me to hold
much promise.30
28 The Search for Truth: An Umpireal View, 123 University ofPennsylvania Law Review,
1975, pp. 1011-1032.
29. Id, at 1037.
30. Id., at 1041.

He finally recommends a modification of the adversary system by
making the truth a paramount objective and by imposing upon the
contestants a duty to pursue this objective.31
A reply to Frankel is given by Freedman in the same volume.32
Freedman says:
It is essential that any evaluation of the truth-seeking function of
a trial be done in the context of our system of criminal justice
and, indeed, the nature of our society and form of government.
We might begin, by way of contrast, with an understanding of
the role of a criminal defence attorney in a totalitarian state. As
expressed by law professors at the University of Havana, 'the
first job of a revolutionary lawyer is not to argue that his client is
innocent, but rather to determine if his client is guilty and, if so,
to seek the sanction which will best rehabilitate him.' Similarly, a
Bulgarian attorney began his defense in a treason trial by noting,
'In a Socialist state there is no division of duty between the
judge, prosecutor, and defence counsel.... The defence must
assist the prosecution to find the objective truth in a case'. In
that case, the defense attorney ridiculed his client's defence, and
the client was convicted and executed. Some time later the
verdict was found to have been erroneous, and the defendant
was "rehabilitated." The emphasis in a free society is, of course,
sharply different. Under our adversary system, the interests of
the state are not absolute, or even paramount. The dignity of the
individual is respected to the point that even when the citizen is
known by the state to have committed a heinous offence, the
individual is nevertheless accorded such rights as counsel, trial by
jury, due process, and the privilege against self-crimination. A
trial is, in part, a search for truth; accordingly, those basic rights
are most often characterized as procedural safeguards against
error in the search for truth. We are concerned, however, with
far more than a search for truth, and the constitutional rights
that are provided by our system of justice serve independent
values that may well outweigh the truth-seeking value, a fact
made manifest when we realize that those rights, far from
furthering the search for truth, may well impede it.
In view of public criticism that known criminals were acquitted too
often, Parliament substantially amended the Code of Criminal Procedure,
1898 in 1955 to plug the technical loopholes. It was again amended in 1973.
The main weakness of our system of criminal justice is its complete
31. Id., at 1052.
32. Id, at 1060.

dependence on the values of oral testimony. The judicial oath has ceased to
be effective and needs to be revitalized. The imbalance in the present system
which is similar to what obtains in the United Kingdom and the United
States of America has been powerfully expressed by a great American jurist
as follows:
What bothers me is that almost never do we have a genuine issue
of guilt or innocence today. The system has so changed that
what we are doing in the courtroom is trying the conduct of the
police and that of the prosecutor all along the line. Has there
been a misstep at this point? at that point? You know very well
that the man is guilty; there is no doubt about the proof. But you
must ask, for example: Was there something technically wrong
with arrest? You're always trying something irrelevant. The case
is determined on something that really hasn't anything to do with
guilt or innocence. To the extent you are doing that to preserve
other significant values, I think it is unobjectionable and must be
accepted. But with a great many derailing factors there is either
no moral justification or only a very minimal justification.33
It would appear that in certain areas of criminal justice a purely
adversary system needs to be modified with a view not so much as to
finding the guilt of the accused but with a view to finding his guilt as a
preliminary step towards his total rehabilitation. It is necessary to rescue
guilty persons from the environment of the career of crime. The state must
play a positive role to reform them and make them good citizens.
Of late a committee headed by Justice Malimath has gone into the
whole question and made many suggestions for the improvement of the
criminal justice system. Some of the recommendations are in the process of
getting implemented.
Our codes and statutes
The very fact that much of the common law introduced in India was
codified is testimony to the obvious advantage of statute law over common
law. Law needs to be certain, precise and predictable. The Indian Penal
Code and the Code of Criminal Procedure, the Evidence Act, as also the
Code of Civil Procedure, the Transfer of Property Act, and the Contract Act
are some of the great pieces of legislation achieved in this country of which
we can justly be proud. Though they represent only a part of the lex loci of
the country, the rest being common law and principles of justice, the
statutory corpus juris of India may be said to be more analogous to the great
33. McDonald, A Center Report: CriminalJustice, The CenterMagazine, Nov. 1968, pp. 69
and 76, (remarks of Walter v. Schaefer).

codes of the civil law system operating in France and Germany and
administered by career judiciary as contrasted to the common law
administered by lawyer judges in England. Our system is thus a combination
of the civil law type courts mostly administered in the district courts by
career judges, but based on common law principles which are developed by
the superior courts in interpreting statutes in the light of common law
principles. At the lower rung, therefore, the legal system is offered as a
closed system consisting of a black letter law which is to be applied by the
courts. This is very suitable to the litigation coming up from a large illiterate
and poor population who are in need of certain and quick justice. However,
when honest difference on some questions of law can exist they can come
up for decision in the High Courts and the Supreme Court staffed more by
lawyer judges than career judges. Here the statutes are interpreted in the
light of principles originating either in the objectives of the Constitution or
in general principles of common law and justice.
The procedure - civil and criminal
While India is a comparatively poor country with a large population and an
enormous amount of litigation, our legal system, though largely codified, is
a highly sophisticated one. The cases in courts are fought with forensic skill
and learning which would stand favourable comparison to the litigation
conducted in the advanced countries like the United Kingdom and the
United States, which are also within the common law system. The result is
that while we have as good a legal system as these advanced countries, in
practice the burden of sophistication of the system is too great for the
number of law courts and judges who have to handle the enormous amount
of litigation and for the poor public who have to foot the bill. Our
procedure also gives the fullest opportunity to the litigant to fight his side of
the case in the courts. The large number of cases and the elaborate nature of
the procedure result in delay in the disposal of cases. The delay almost
defeats justice. The Law Commission, the government, the judges and the
lawyers have time and again considered this problem which threatens to
bring the whole system into disrepute. While there is nothing wrong
basically with the legal system as such, its operation must be improved so
that the cases are disposed of quickly and the arrears in the courts are
reduced. It would be only with the co-operation of the Bar, the Bench, the
litigant public and the government that this state of affairs can be improved
by such measures as:
(1) A general awakening of the conscience of the people that litigation
should first be avoided and if resorted to, must be fair and quick so
that justice is done;
(2) Encouraging settlement of disputes outside the courts by
conciliation, if necessary;

(3) Substituting arbitration and adjudication by tribunals in many areas
of litigation presently administered by courts;
(4) Simplifying the substantive laws;
(5) Shortening the procedure;
(6) Reducing the number of appeals and revisions;
(7) Refusal of adjournments of cases by the courts;
(8) Reducing the length of arguments; and
(9) Reducing the length of judgments.
The right to work
The main distinction between the democratic law system and the socialist
system is that the individual takes care of himself in the former while the
state takes care of the society as a whole including the individual in the
latter. While the two systems will certainly go on side by side in the different
parts of the world, the problem of unemployment is becoming so acute in
India that our common law system has to take a leaf from the socialist legal
system. In the directive principles of state policy, the states in India are
obligated to bring about a just society. Article 41 particularly requires the
state within the limits of its economic capacity and development, to make
effective provisions for securing the right to work, to education and to
public assistance in cases of unemployment, old age, sickness and
disablement and any other case of want.
Article 41, however, does not make it mandatory on the state to give
compensation to workers in cases where their employment suffered as a
result of some governmental action, for example, short supply of
electricity.34
The Supreme Court has read articles 21, 39(a) and 41 together
to include right to livelihood as a part of right to life. But this does not mean
that the state can be compelled by affirmative action to provide means of
livelihood or work to all citizens. What it means is that the state shall not
deprive any person of his livelihood except according to just and fair
procedure established by law.35
Thus, from the traditional right to life an important economic right has
been derived by the apex court, placing an obligation on the government. A
rule made by a government company authorizing it to terminate the
employment of a permanent employee by giving him three months notice
and without giving him a hearing was held to be violative of articles 39(a)
and 41 and ultra vires article 14 of the Constitution.36
Commenting on
34. See Radhakrisbna Mills v. SIT AIR 1954 Mad 686.
35. See, Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180.
36. Central Inland Water Transport Corpn. Ltd. v. Brojo Nath 1986 DC 1571.

article 41 the Supreme Court in Delhi DevelopmentHorticultureEmployees Union
v. Delhi Administration}7
has observed that "this country has so far not found
it feasible to incorporate the right to livelihood as a fundamental right in the
Constitution. This is because the country has so far not attained the capacity
to guarantee it, and not because it considers it any the less fundamental to
life. Advisedly, therefore, it has been placed in the chapter on Directive
Principles.... Thus, even while giving direction to the state to ensure the
right to work, the Constitution-makers thought it prudent not to do so
without qualifying it."38
Personal laws
India is a land of diverse religions. Hindus, Buddhists, Jains Christians,
Muslims, Parsees, Sikhs and Jews form the nation. Each community has its
own personal laws governing marriage, divorce, infants, minors, adoption,
wills, intestacy and succession. The oldest part of our legal system is the
personal laws governing these different communities. Some of the laws
which govern them include: Indian Divorce Act, 1869; Indian Christian
Marriage Act, 1872; Indian Succession Act, 1925; Parsi Marriage and
Divorce Act, 1936; Dissolution of Muslim Marriage Act, 1939; Special
Marriage Act, 1954; Hindu Marriage Act, 1955; Foreign Marriage Act, 1969;
and Muslim Women (Protection of Rights on Divorce) Act, 1986. It is
inevitable that the ideals animating these personal laws should change with
the change in the manners and customs of our society which are themselves
brought about by an increasing assimilation of the manners and customs of
other people in the world by our people. Recently necessary amendments
have been incorporated in the Special Marriage Act, Hindu Marriage Act,
Parsi Marriage and Divorce Act and the Indian Divorce Act. Under the
Special Marriage Act, persons can specifically register their marriage even
though they are of different religious faiths. The Act also provides that
marriage celebrated under any other form can also be registered under this
Act, if it satisfies the requirements of the Act. By the Special Marriage Laws
(Amendment) Act, 2001 section 4(b)(iii) of the Hindu Marriage Act, 1955
was amended to omit the words "or epilepsy", which was earlier a statutory
bar for marriage. Sections 36 and 38 have also been amended to provide that
an application for alimony pendente lite or the maintenance and education of
minor children be disposed of within 60 days from the date of service of
notice on the respondent.
In the Indian Divorce Act comprehensive amendments were made
through the Indian Divorce (Amendment) Act, 2001 to remove
discriminatory provisions against women in the matter of divorce. Provision
37. AIR 1992 SC 789.
38. Ibia

has also been made for dissolution of marriage by mutual consent. This is
on the lines of section 13B of the Hindu Marriage Act and section 28 of the
Special Marriage Act. By the Hindu Succession (Amendment) Act, 2004 a
daughter has been made a member of the coparcenary, entitling her to an
equal share in the agricultural property. The Parsi Marriage Act which
governs the matrimonial relations of Parsis was amended in 1988 and 2001
to enlarge its scope so as to bring it in line with the Hindu Marriage Act.
As regards Muslims, marriages are governed by the Mohammedan law
prevalent in the country. Regarding divorce {talaq), a Muslim wife has a
much restricted right to dissolve her marriage. In Ahmedabad Women's Action
Group v. Union qflndiai9
a writ petition was filed to declare Muslim personal
law, which enables a Muslim male to give unilateral talaq to his wife without
her consent and without resort to judicial process of courts, as void,
offending articles 13, 14 and 15 of the Constitution. The Supreme Court,
however, refused to entertain the writ petition because the issue involved
state policies. The court opined that the remedy could not be provided by
judicial process and instead it must be sought elsewhere. As for matrimonial
laws of Jews, there is no codified law in India. They are governed by their
religious laws. Jews do not regard marriage as a civil contract, but as a
relation between two persons involving very sacred duties. Marriage which is
only monogamous can be dissolved through courts on ground of adultery or
cruelty.
Although there is no general law of adoption, it is permitted by the
Hindu Adoption and Maintenance Act amongst Hindus and by custom
amongst few categories of persons. Since adoption is legal affiliation of a
child, it forms the subject matter of personal law. Muslims, Christians and
Parsis have no adoption laws and have to approach the court under the
Guardians and Wards Act. They can take a child under the said Act only
under foster care. Once a child under foster care becomes major, he is free
to break away all his connections. Besides, such a child does not have legal
right of inheritance. Foreigners who want to adopt Indian children also have
to approach the court under this Act.
Obligation of a husband to maintain his wife arises out of the status of
marriage and therefore the right to maintenance forms a part of the personal
law. Under the Code of Criminal Procedure, 1973 right of maintenance
extends not only to the wife and the dependent children, but also to
indigent parents and divorced wives. Claim of maintenance for all
dependent persons was limited to Rs. 500/- per month. But this limit was
removed by an amendment to the Code in 2001. Inclusion of the right of
maintenance under this Code has the advantage of making the remedy both
speedy and cheap. However, divorced wives who have received money
39. (1997) 3 SCC 573.

payable under the customary personal law are not entitled to claim
maintenance under this Code.
Under the Muslim law, the Muslim Women (Protection of Rights on
Divorce) Act, 1986 protects rights of Muslim women who have been
divorced by or have obtained divorce from their husbands. The Act, inter
alia, provides that a divorced Muslim woman shall be entitled to a
reasonable and fair provision and maintenance to be made and paid to her
within the iddat period by her former husband. In Danial Latifi v. Union of
India"'® the Supreme Court, however, while interpreting this provision of the
Act held that it would be unconstitutional if not interpreted to mean that
women would get a reasonable and fair provision and maintenance.
The Parsi Marriage and Divorce Act recognizes the right of wife to
maintenance, the maximum amount being one fifth of the husband's net
income. In fixing the quantum of permanent maintenance, regard will be
had to what is just, bearing in mind the ability of husband to pay, wife's own
assets and conduct of the parties. The Indian Divorce Act also which, inter
alia, governs the maintenance rights of Christian wives provides for similar
provisions as are laid down under the Parsi law.41
Uniform civil code for the citizens
Article 44 of the Constitution envisages that the state shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India.
The framers of the Constitution apparently felt that national integration
would not be complete unless everyone in India is governed by uniform
laws which do not distinguish between persons on the grounds of religion,
etc. It is an anomaly that Hindus and Muslims should be governed by
different laws solely because they profess different religions. The freedom of
religion guaranteed by article 25 and the protection given to the cultural and
educational rights of the minorities by articles 29 and 30 do not require that
people professing different religions and minorities based on religion should
be governed by personal laws. For, religion, cultural and educational rights
are equally guaranteed to everyone. The guarantees will be the same
irrespective of what the religion, culture and methods of education may be.
These fundamental rights have to be construed firstly in the light of entry 5
of List III - Concurrent List of the Seventh Schedule of the Constitution.
Both ParUament and state legislatures are competent to legislate not only on
marriage and divorce, infants and minors; adoption; wills, intestacy and
succession; joint family and partition which are subject matter of personal
laws but also on all matters in respect of which parties in judicial
proceedings were immediately before the commencement of the
40. (2001) 7 SCC 740.
41. See India 2005, pp. 498-504.

Constitution subject to their personal laws. All this would show that the
fundamental rights guaranteed in the Constitution are not a bar to the
achievement of a uniform legal system throughout India. Secondly,
Parliament and state legislatures are expressly empowered to bring about
such uniformity.
Unfortunately, no such attempts have so far been made by the
Parliament despite the Supreme Court's efforts at reminding it to retrieve
article 44 "from the cold storage where it is lying since 1949."42
In the Shah
Bano case43
Y.V. Chandrachud CJ. observed that "a common civil code will
help the cause of national integration by removing disparate loyalties to law
which have conflicting ideologies."44
Reviewing the various laws prevailing
in the area of marriage in India, the apex court opined in Ms. Jorden Diengdeh
v. S.S. Chopra^ that "the law relating to judicial separation, divorce and
nullity of marriage is far, far from uniform. Surely the time has now come
for a complete reform of the law of marriage and make a uniform law
applicable to all people irrespective of religion or caste...We suggest that the
time has come for the intervention of the legislature in these matters to
provide for a uniform code of marriage and divorce...." The court again in
Sarla Mudgal v. Union of India46
in the context of a Hindu married under the
Hindu law, converting to Islam and marrying another woman, observed that
"where more than 80 percent of the citizens have already been brought
under the codified personal law there is no justification whatsoever to keep
in abeyance, any more, the introduction of the 'uniform civil code' for all the
citizens in the territory of India."47
The recent instance of the apex court's
reference to having a uniform civil code for the country was in the case of
John Vallamattom v. Union of India.4
* The court while holding that the
impugned section 118 of the Indian Succession Act was discriminatory and
hence violative of the Constitution as it imposed unreasonable restrictions
on Christians in the matter of donating property for religious or charitable
purposes by will, observed as follows:
"We would like to state that article 44 of the Constitution has
not been given effect to. Parliament is still to step in for framing
42. Kuldip Singh J. in Sarla Mudgal v. Union ofIndia AIR 1995 SC 153.
43. MohammedAhmed Khan v. Shah Bano Begum AIR 1985 SC 945.
44. Ibid. The case concerned with the right of a Muslim woman to claim maintenance
from her husband under section 125 of the Code of Criminal Procedure, 1973.
While upholding the Muslim woman's right to claim maintenance from her husband
under the said section, the court also observed that article 44 of the Constitution has
remained a dead letter,
45. AIR 1985 SCC 943 at 940.
46. See supra note 42.
47. Ibid
48. AIR 2003 SC 2902.

a common civil code in the country. A common civil code will
help the cause of national integration by removing the
contradictions based on ideologies."49
Despite the above views expressed by the apex court time and again,
not much progress has so far been made towards achieving the ideal of a
uniform civil code which still remains a distant dream. It may be mentioned
that all civilized societies in the world have already accepted a uniform code
and this has helped them build a better society. The Indian legal system will
achieve its proclaimed objective when a uniform code for all citizens comes
into being.
Suggested Readings
1. A. V. Dicey, Law and Public Opinion in England, Macmillan, London,
1962.
2. A. V. Dicey, Introduction to the Study ofthe Law of the Constitution, 8th ed.,
Macmillan, London, 1951.
3. Alan Gledhill, The Republic of India, Stevens, London, 1951.
4. B. Schwartz, The Law in America.
5. Dennis Lloyd, The Idea of Law, Penguin Books Ltd., England, 1964.
6. M. C. Setalvad, The Common Law in India, Stevens, London, 1968.
7. Morris Ginsberg, Law and Opinion in England in the Twentieth Century,
Stevens, London, 1959.
8. Morris Ginsberg, On Justice in Society, Heinemann, London, 1965.
9. N. C. Sen-Gupta, Evolution ofAncient Indian Law.
10. O. W. Holmes, The Common Law, Light & Life, New Delhi, 1975.
11. Priyanath Sen, Jeneral Principles of Hindu Jurisprudence, University of
Culcutta, Culcutta 1980.
12. R. David and J. E. Brierley, Major Legal Systems in the World Today, 3rd
ed.,
Stevens on London, 1985.
49. Ibid, as per V.N. Khare, CJ.

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