Comparative Indian Legal System

Questions: 1. What is the underlying ideology or religion that is served by the legal system and what are its central tenets? 2. how are those central tenets manifested in the legal system. 3. Given the central tenets of the legal system you have selected, could it co-exist in a type of legal pluralism with the Australian legal system? Answers: For the purpose of study in this paper, I have taken Indian legal system and have explained the underlying ideology of creating it as well as its central tenets. The integration of such central tenets in the legal system as well as the possibility of its co-existence as the legal pluralism with the Australian legal system is also discussed in the paper. What is the Underlying Ideology or Religion that is Served by the Legal System and what are its Central Tenets? The most common legal systems around the world are the common law system, the civil law system, the socialist legality system, and the religious law system. The Indian legal system can be considered as a common law system; however it can also be classified as an open legal system which has taken elements from civil, socialist and religious legal systems as per the needs and requirements of the society.[1] As we understand that India is one of the oldest civilized nations in the world thus the legal system of India is one of oldest yet it has been changed as and when required under the constitution of India to take in inferences from other legal systems. Indian legal system is governed under the Constitution of India as it exhibits the Anglo-Saxon nature of judiciary. The legal system of India is much diversified in nature due to presence of various cultures, local traditions and customs following different ideologies yet following almost similar ethical and legal standards. Various personal and common laws governs the diverse religious population of India. The legal system of India is an integrated system of courts whose administration function is used to govern whereas the courts utilize the combination of state and union laws. The hierarchical order of courts legitimizes the authority of the Supreme Court of India as the highest order making body in the Indian legal system. The diverse geography of India has various states and each state has their own High Courts as well as various subordinate courts.[2] As discussed earlier, India, as a nation is governed under the common law system which is improved after regular judicial pronouncements and legislative actions as per the Indian culture and societal requirements. The Indian legal system has al so been moving towards the model of social justice as other territories with common law system. The legal system of India is working under the framework by defining the procedure, structure, power and duty prescribed under the Indian constitution. The federal natured Indian constitution has 25 part containing 448 articles with 12 schedules under 5 appendices and has witnessed 98 amendments till date. The tier-wide power spread among the courts in India indicates Supreme Court at highest authority with the hierarchical order followed by the High Courts, District Courts and Magistrates of Second Class and Civil Judge. 24 High Courts are governing and maintain the law and order at state level. The Indian legal system is divided into two branches:[3] Criminal Law The Criminal Law deals with acts like theft, homicide, abuse etc. A Criminal Law procedure starts with filing a FIR (First Information Report), followed by police investigation and trials in court. The India Penal Code (IPC) forms the backbone of criminal law in India. It has been amended several times since it came to force in the early British Raj in 1862.It is subdivided into 23 chapters which contains 511 sections and covers a wide range of criminal offenses.[4] The much talked about Section 377 which criminalizes gay sex falls under chapter XVI and is titled Of Unnatural Offences. Civil Law The Civil Law entails the cases where harm is caused to the rights of individuals like disputes related to land, goods, rent and divorce. The procedure of civil cases commences with filing a petition in the relevant court by the affected party only. Indian Laws Pertaining to Women and Children Various laws pertaining to the safety and security of women such as Immoral Traffic Prevention Act, 1956,Dowry Prohibition Act, 1961, Indecent Representation of Women Act, 1986, Commission of Sati Act, 1987, Protection of Women from Domestic Violence Act, 2005, and Sexual Harassment of Women at Workplace Act, 2013 etc. are constituted in Indian legal system. Various laws pertaining to the safety and security of children such as Reformatory Schools Act, 1897, Child Marriage Restraint Act, 1929, Young Persons (Harmful Publications) Act, 1956, Children Act, 1960, Child Labour Act, 1986, Infant Milk Substitutes, Feeding Bottles Infant Foods Amendment Act, 2003, Commissions for the Protection of Child Rights Act, 2005, Prohibition of Child Marriage Act, 2006, and Juvenile Justice Amendment Act, 2006 are constituted in Indian legal system. Apart from this there are other religion based laws legal in Indian legal system pertaining to other religions such as Hindu law, Muslim Law, Christian Law and Sikh Law. Overall the Indian legal system is highly complex in nature and has the lengthy law structure compared to other countries in the world. How are those Central Tenets Manifested in the Legal System? The legal systems are supposed to acknowledge the rights while laying down the duties of residents of the society. It also identifies different methods and ways to impose and implement the regulations under its constitution. The legal systems around the world are created on the basis of regularly changing social, economic and political situation in any society. The legal systems have futuristic goals and documented as well as evolving regulations to help the society to achieve the desired goals. Indian legal system has given space to other religion laws into its structure, which can function individually within the gambit of Indian legal system. The Indian legal system till now follows central tenets from the British raj. The laws made at that time still are in power in Indian legal system with some current modifications. The Indian legal system draws various similarities from the British Common Law system as the judges are given full authorities to develop the rules, regulations and laws by passing the judgments.[5] The Indian legal system has its own federal structure with a combination of both central and state government and courts working towards the interests of the Indian society. The Indian laws have been creased under the constitution of India (initialed applied on January 26, 1950) which has been adopted by the parliament of India as well as is regarded as the primary source of law. Other sources are usual in nature such as different case laws, ratification in the existing laws passed by the Indian parliament, various decree and statutes as well as regular customary legal changes and treaties. Indian government and nation as a whole is governed under the constitution and its various charters which are regarded as the fundamental principles of law. The Indian constitution, as the primary legal background of system, was created by the Constituent Assembly under the leadership of Dr. BhimraoAmbedkar. The assembly drafted the Indian constitution with the help of constitutional documents of various nations such as Ireland, USA, Canada, and Australia. The primary document of Indian constitution is divided into 22 parts and it contains 395 articles in 12 schedules . Indian constitution has adopted various statutes as legislative acts which are endorsed for recommend the conduct in society, promotion of welfare of the population as well as defining the crimes and their punishments. Other major regulations are adopted through session laws as state legislature, official gazettes as the publication of the government of India in form of ordinances and regulations as well as Individual Central and State Bare Acts. The constitution is amended and new laws are also created using different case laws or various court decisions. As discussed earlier the hierarchy of the courts sometimes requires amendment of laws as per case laws and judgments by different courts of Indian legal system. Indian legal system has been structured very keenly and has been created very carefully keeping in view the sovereignty of people of India.[6] The Indian constitution Article 14 21 manifests the central tenets of the principles of natural justice. The common law of natural justice is clearly prevalent in the substantive and procedural process under the Article 21 which imposes the fairness for the implementation of the principles of natural justice. Any violation of the above fairness of the implementation of the principles of natural justice is supposed to be resulted in the arbitrariness process under the Article 14 which indicates the violation of Equality clause.With regards to the ideology and religion, the Indian constitution claims India as a secular republic nation as well as a fundamental right to freedom of religion has been granted to the citizen of India. The constitutional preamble reads that India is a sovereign socialist secular democratic republic mandating equal treatment and tolerance of all religions. By not having any official state religion and language, Indian constitution provides all Indians a right to practice, preach, and propagate any religion of their choice. Most of the religious communities are governed under their personal laws such as Hindus Personal Laws, Muslims Personal Law, Christians Personal Laws, Zoroastrians Personal Laws, and Jews Personal Laws.[7] The family laws are different as well and the nation is still in processes of progressing towards a uniform civil code. Given the Central Tenets of the Legal System you have Selected, could it Co-exist in a Type of Legal Pluralism with the Australian Legal System? As experienced while analyzing the various legal systems that core ideology behind installing a legal system is to serve a particular ideology or religion. The legal system can be defined as a set of authorized doctrines and principles which are used for the protection and promotion of cultured living standards in societies. The legal pluralism can be described as the existence of various legal systems within a specified geographical domain, as discussed in the above tenet discussion India, country which calls itself as sovereign socialist secular democratic republic, has various legal system present under its constitution such as civil laws, criminal laws as well as various personal laws on the basis of religion ex. Hindu law, Muslim law and Christian law etc. India is known to be a country, a land of pluralism par excellence because of the coexistence of different forms of religion, language and diverse culture.[8] India has special Islamic courts which addresses the concerns of Mu slim community by following the Islamic laws and other generally secular courts deal with the cases of other communities. Australia also enjoys great multicultural population however the multiculturalism can also lead to controversies as it led in India with regards to Uniform Civil Law (Muslim communities going against it). Existence of ethnic ghettos and inter-racial tension can also increase due to such cultural diversity. I believe that Yes, Indian and Australian legal systems can co-exist on the face of legal pluralism because of various reasons. Both the nations enjoy a similar political approach towards their parliament, constitution, courts as well as legal system. The similarities with regards to the law reform system also indicate that both can co-exist. As in Australia, like India the law reforms are institutionalized through a long yet secured process of public services initiative and government resourcefulness. Recent example of a newly created a National Corporations Law in Australia presents a clear example of the process followed for creating and institutionalizing the laws. The reforms initiated in the old laws of Aboriginal Australians and incorporation of gender related bias in the existing laws indicates that the roots are quite similar with the Indian legal system.[9] The basic underlying reason behind these similarities is the basis incarnation of legal system of both the nations happened from British legal system. It is quite evident that Australian legal system embeds the different cultures, old prejudices as well as allegiances yet the possibility of reforms and a simple reform process presents a great opportunity of legal pluralism. Indian and Australian legal systems can co-exist as well as must work together for reforming their legal system as per modern requirements and necessities. As quite visible in last few decades, Australia has been rejecting the total embrace of principles which are different to British common laws and anglo-centric values. As Australia recognizes the existence of customary laws, still the rights of people are regulated and they are not able to argue common law cases considering high complexities involved in the legal proceedings.[10] Thus the reliance on the native customary law is almost limited as its only existence is recognized under the common law. The join reform committee of both nations can work together to achieve the shared objectives of simplification of laws and other reforms in their legal and judicial systems. However as per the 2013 report of Joint Standing Committee on Migration was not very appreciative of the existence of the de facto legal pluralism in Australia. The Australian legal system can also use the value and reforms institutionalized by the Indian constitution with regards to acceptance of the other legal systems and promotion of legal pluralism. The eminent lawyers of both the nations should work together to fight the neglect and introduce reforms. Both the nations can also utilize the each-others constitutional decisions. As discussed earlier that Indian constitution committee had used a part of Australian constitution as well while drafting their constitution, thus it presents a great opportunity for both the nations to work together and reform their legal systems.[11] Both the nations can utilize their central tenets the legal system to co-exist in a type of legal pluralism with the legal systems of each-other. Indian and Australian courts can work together with regards to the development of the common laws and reform administration in the same domain to promote the simplicity in their legal systems. The complex cultural and social situation in India and their judicial management is the domain where Indian lawmakers can help the world. The diversity of cultures and social institution as well as the failure of the government to address the related issues, the strong Indian judicial system has provided a great alternative of the common people of India.The uppermost authoritative court of India, the Supreme Court has been a key contributor to reforms and redressal in laws and regulations for the betterment of the society. Australia also enjoys the similar professionally sound and creative law reform and regulation management system to achieve the desired updates in the old laws and institutionalize the new ones.[12] Institutionalizing the Australian Law Reform Commission was one the most smart judiciary reform that has helped Australian legal system to be dynamic as well as appropriate for the current hanging environments. State Law Reform Commissions have been the engineers of the path to provide new reforms in the law through their experience and judiciary changes. The reform commissions have been continuously working on reforming the laws with regards to sentencing, disability, defamation, uniform succession, and medical treatment consent and many more. India also has been able to revoke and remove thousands of redundant laws and reforming them to make them modern and simpler. This presents a great opportunity for the lawyers and judges of both the nations to work towards the legal pluralism in each-others constitutions. The similarities in the constitution with regards to federal and common laws as well as language, the statutory lineage of large areas of public and private laws etc. clearly indicate that both the nations can utilize their central tenets the legal system to co-exist in a type of legal pluralism with the legal systems of each-other. References 1. Avinash Gadhre, Law and Religion (July01, 2015) Legal Services India https://www.legalservicesindia.com/article/article/law-and-religion-1852-1.html Ashok Jain, Structure Of Indian Legal System:-Original Origin And Development (2014) 4 International journal of law and legal jurisprudence studies G Peiris, Involuntary Manslaughter in Commonwealth Law (1985) 5 Legal Studies F C Hutley, The Legal Traditions of Australia as Contrasted with Those of the United States (1981) 55 Australian Law Journal H R Khanna, The Making of India's Constitution (Eastern Book Co, 1st ed, 1981) Privy Council Limitation of Appeals)Act 1968 (Australia) S J Sorabjee, Public Interest Litigation for Protection and Promotion of Human Rights: The Indian Experience (1996) 1 New Zealand Law Conference Proceedings M Sornarajah, Duress and Murder in Commonwealth Law (1981) 30 International and Comparative Law Quarterly Rene David and John E.C. Brierley, Major Legal Systems In The World Today(2012) 10 Journal of Law S Yeo, Lessons on Provocation from the Indian Penal Code (1992) 41 International and Comparative Law Quarterly SLIF, Indian Judicial System (2011) https://www.silf.org.in/16/indian-judicial-system.htm Theophanous v The Herald and Weekly Times Ltd and Anor (1994) 182 CLR 104.