A Q&A guide to the legal system in India.
The Q&A gives a high level overview of the key legal concepts including the constitution, system of governance and the general legislative process; the main sources of law; the court structure and hierarchy; the judiciary and its appointment; the general rules of civil and criminal litigation, including reporting restrictions, evidentiary requirements, the roles of the judge and counsel, burdens of proof and penalties.
1. What form does your constitution take?
The Constitution of India of 1950 is a written document which currently comprises over 450 Articles and 12 Schedules. It is the longest written constitution of any sovereign country in the world.
The Constitution of India was drafted and adopted by a constituent assembly of elected representatives of the people and came into effect on 26 January 1950. The Constitution of India is not the creation of parliament but of the people of India and is therefore supreme. India’s constitutional supremacy is evidenced in the opening sentence of the Preamble to the Constitution of India: “We, The People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic”.
The Constitution of India is sometimes referred to as a cosmopolitan document because it derives several of its features from foreign sources, most notably:
- Parliamentary government, rule of law and bicameralism from the UK.
- Directive Principles of State Policy from Ireland.
- Fundamental rights, judicial independence and functions of the president from the US.
- Union list and state list from Canada.
- Concurrent list and freedom of trade from Australia.
- Fundamental duties from the former USSR.
Having features of both federal and unitary constitutions, the Constitution of India is neither purely federal nor purely unitary, and is widely considered as quasi-federal in nature.
GENERAL CONSTITUTIONAL FEATURES
2. What system of governance is provided for?
India is a union of 28 states and eight union territories. India has a parliamentary system, with legislatures at both union and state levels.
Head of state
The President is the constitutional head of the Union of India, commander-in-chief of the Indian armed forces and head of the government. The “real” executive power is vested in the Prime Minister and the council of ministers (and the President must act on their “aid and advice”). A similar system is established at the state level. While the governors are the head of the states, the executive powers are exercised by the chief ministers (leader of the state government) and their council of ministers.
The Indian Constitution has adopted a bicameral legislature at the union level. The Indian Parliament comprises two Houses, the:
- Lok Sabha (House of the People). The political party or coalition of political parties with a majority in the Lok Sabha forms the government. The members of the Lok Sabha are directly elected by the people from their territorial constituencies.
- Rajya Sabha (Council of States). The members of the Rajya Sabha are indirectly elected from the state assemblies.
However, the legislative powers of these two Houses are quite similar.
At the state level, there is the state legislature. All states have a legislative assembly (which is similar to the Lok Sabha) and some states may also have a second House (that is, a legislative council). Currently, only seven of the 28 states have a legislative council. The legislative assemblies have significantly more power than the legislative councils. The number of the state legislature members depends on the population of the specific state.
3. Does the constitution provide for a separation of powers?
The Constitution of India (unlike the US and the Australian constitutions) does not have an express provision for separation of powers. However, it still recognises and incorporates the doctrine of separation of powers between three branches (legislature, executive and judiciary). Therefore, while no formal lines have been drawn between them, it is widely considered that the doctrine of separation of powers “runs through” the Constitution of India.
There is often an overlap in the scope of the functions of the three branches. Because of the parliamentary form of government, the dividing line between the executive and the legislature is naturally rather a fine one. Under the Constitution, the executive can legislate using:
- The ordinance-making powers of the President and the governors.
- Delegated executive legislation.
The legislature exercises some form of control over the judiciary in that it can legislate on the constitution, jurisdiction and powers of the courts, and can also impeach judges.
The judiciary has wide powers to review and strike down unconstitutional executive and legislative decisions and actions. The legislature can make such rulings ineffective by amending the law while staying within the constitutional limits (a concept known as “legislative overruling”). This is an example of the inherent checks and balances under the Constitution which further strengthen the separation of powers.
Despite the fact that the three branches interconnect and have functional overlaps, the Indian judiciary has recognised the doctrine of separation of powers as a basic feature of the Constitution and an essential part of the rule of law.
4. What is the general legislative process?
India’s parliamentary system empowers legislating at the union level by the Indian Parliament, and at the state level by the state legislatures. Their subjects of legislation are clearly defined under two separate lists in the Constitution of India, the Union List and the State List. There is also a Concurrent List of subjects on which both Parliament and the state legislatures can legislate. If there is a conflict between a legislation of the union and a state, union legislation prevails (although there are some exceptions to this). The law-making procedure is generally similar at both levels. This section focuses more on the legislative process of the Indian Parliament and reference is made to the state legislatures only where there is a material difference.
PROPOSAL AND DRAFTING
Typically, the text of a proposed law (that is, a bill) is drafted by the relevant ministry of the government. The bill is circulated to other relevant ministries and sometimes even to the public, for their input. After revisions are made (as necessary), the bill is presented for approval to the council of senior ministers, headed by the Prime Minister (this is known as the Union Cabinet). On approval, the bill is introduced in either House of the Parliament (either Lok Sabha or Rajya Sabha). The only exception to this is money bills (bills of a fiscal nature) which can be introduced only in the Lok Sabha.
In either House of the Parliament, a bill generally goes through three readings, that is:
- One for introduction.
- One for scrutiny.
- One for passing.
Once a bill is passed by a majority in one House, it is then introduced to the other House where the same stages are repeated. All bills (except money bills) need the approval of each House. This is different from the state legislatures where the legislative council only plays an advisory role and where the legislative assembly is the final authority. For money bills, the Lok Sabha has the final authority and the Rajya Sabha has only recommendatory powers.
After a Bill is passed by majority in both Houses, the bill is sent to the President for assent. The President can seek information or clarification about the bill and can return it to the Parliament for reconsideration (but only once). If both Houses pass the bill again (regardless of whether they implement the President’s recommendation), the President must give his or her assent.
When Presidential assent is received, the Bill becomes an Act of Parliament and is notified in the official government gazette.
The President can also legislate by passing an ordinance when the Parliament is not in session. Once the Parliament is in session again, the ordinance must be ratified by the Parliament for it to continue as a law (otherwise it will lapse). The governor has similar ordinance-making powers at the state level.
5. Is there a doctrine by which the judiciary can review legislative and executive actions?
Under the Constitution, the superior judiciary has been said to offer one of the widest and most extensive scopes of judicial review in the world.
The power of judicial review of legislative and executive action is considered to be an essential tool for preserving the doctrine of separation of powers and the rule of law. The Supreme Court of India and the High Courts can review and invalidate legislative or executive actions if they are found to breach the Constitution. This power is not exercised suo moto (that is, on its own motion), but only when the validity of an action, law or rule is specifically challenged before the court. Judicial review must be exercised with judicial restraint. The courts must not encroach into the legislative or executive domain by rewriting legal provisions or by making policy decisions.
6. Are certain emergency powers reserved for the executive?
The Constitution of India recognises three kinds of emergencies:
- National emergency. National emergency can be declared if there is a threat to the security of India or a part of India. It must be subsequently approved by Parliament within one month, and can be repeatedly extended. All fundamental rights under the Constitution (except the rights to life and personal liberty) are automatically suspended. National emergencies have been declared three times in India’s history, two of which were during wars.
- State emergency. State emergency can be declared in a state if it is found that the “constitutional machinery” of the state has failed (that is, the governance cannot be carried out in a constitutional manner). Loss of majority of the ruling party in the state government, collapse of coalition or death of the chief minister of a state have been the most prominent causes of imposition of state emergency in India. Once declared, the President assumes all executive and administrative power of that state (this is known as the President’s rule). State emergency must be approved by Parliament within two months and can be extended for a maximum period of three years. An extension beyond one year can be made only if a national emergency has been declared and it is difficult to hold elections in that state. State emergencies have been declared in various states several times.
- Financial emergency. Financial emergency can be declared if the financial stability or the credit of India (or of any part of it) is threatened. Normally, financial emergency can be declared for a period of two months but can be extended with parliamentary approval. During a financial emergency, the President can give any directions he or she deems necessary and adequate to states, including to present all money bills to him or her to consider, or to decrease the remuneration of public servants. Financial emergency has never been declared in India.
An emergency can be declared only by the President of India, and with the aid and advice of the Prime Minister and the Union Cabinet.
7. Are human rights constitutionally protected?
India is a signatory to the Universal Declaration of Human Rights. Most of the rights provided in it have been incorporated as Fundamental Rights in the Constitution of India. These rights include the following:
- Equality before the law.
- Right against discrimination.
- Equality of opportunity.
- Freedom of speech and expression, movement, religion, peaceful assembly and practicing any profession.
- Right to life and personal liberty.
These fundamental human rights differ from other constitutional rights as they are supreme and cannot be diminished by any law, ordinance, custom or administrative action. Any action that violates a fundamental right is void (whether legislative, executive or judicial). The right to approach the Supreme Court of India against such violation is itself a fundamental right under the Constitution.
8. By what means can the constitution be amended?
Amendments to the Constitution of India require a special majority of the Parliament (that is, more than half of the total membership and two-thirds majority of those present and voting). In a few cases relating to the federal structure of the Constitution, amendments require further ratification by at least half of the states (in addition to the special majority of the Parliament). There are also some changes which may be carried out by a simple majority of the Parliament (one-half majority of those present and voting). This last category of changes is, however, not formally considered to be an “amendment” to the Constitution. So far, there have been 104 amendments to the Constitution, with the last amendment, the Constitution (One Hundred and Fourth Amendment) Act, 2019, being enforced on 25 January 2020.
Amendments to the Constitution are not beyond the scope of judicial review. In one of the most remarkable constitutional judgments in India (also the lengthiest and with the largest ever bench of 13 presiding judges), the Supreme Court held that the legislature cannot amend, alter or destroy the basic structure of the Constitution (a term that originates from this judgment). The Constitution has no provision for holding referendums or plebiscites.
9. What form does your legal system take?
India has a hybrid legal system having elements of civil law, common law, equitable law, and customary and religious laws.
MAIN SOURCES OF LAW
10. What are the main domestic sources of law?
The main sources of law are the following:
- The Constitution of India. This is the supreme source of law.
- Statutes. Statutes are enacted by the Parliament or the state legislatures. At local level, subordinate delegated legislation (such as rules, regulations and bye-laws) is passed by local authorities (such as government departments, municipal corporations, municipalities and gram panchayat).
- Customary law. In certain aspects, local customs and conventions (usually religious in nature) that are not against any statute or morality are also applicable.
- Judicial decisions. While technically not law, judicial decisions of superior courts like the Supreme Court of India and High Courts are another important legal source, and have precedential value.
11. To what extent do international sources of law apply?
International sources of law (such as a treaty or a convention signed by India) can generally be enforced in India if they have been ratified and incorporated in Indian law. In certain cases, customary rules and principles of international law can be applied even without formal ratification in the interests of justice and if the international law in question is not inconsistent with Indian law. If there is a conflict between a domestic law and an international law, the domestic law will prevail. Indian courts regularly consider and rely on international legal principles and judicial decisions of other (mostly common law) jurisdictions while dealing with social, economic, environmental, governance and contractual issues.
COURT STRUCTURE AND HIERARCHY
13. What is the general court structure and hierarchy?
The Indian judicial system is a single integrated system. The Constitution of India divides the Indian judiciary into superior judiciary (the Supreme Court and the High Courts) and the subordinate judiciary (the lower courts under the control of the High Courts).
The Supreme Court of India is the apex court of the country and sits in New Delhi. It is presided by the Chief Justice of India. There are twenty-four High Courts in the country. Each state has one High Court, although some High Courts have jurisdiction over multiple states and Union Territories. For example, the Guwahati High Court exercises jurisdiction over the states of Assam, Nagaland, Mizoram and Arunachal Pradesh, all of which are situated close to each other in the north-eastern part of India. For administrative convenience, states are further sub-divided into districts, each of which has its own District Court. Barring a few states, the original jurisdiction for both civil and criminal cases vests with the District Court. The judicial system also consists of tribunals and commissions which are established under, and to deal with, specific statutes.
13. To what extent are lower courts bound by the decisions of higher courts?
The judicial pronouncements by the Supreme Court of India are binding precedents on all courts, judicial authorities and tribunals in India. Similarly, High Court decisions are binding on all subordinate courts, authorities and tribunals in India, unless there is a contrary decision from another High Court. If there is a contrary decision from a different High Court, the decision from the court with the larger judge bench usually prevails. District Court decisions are not binding on any other court.
14. Are there specialist courts for certain legal areas?
Under the Indian judicial system, certain traditional courts have been specifically tasked to deal with certain areas of law. District Courts usually have courts formed under specific statues, such as:
- Family courts to deal with issues relating to marriage, inheritance, guardianship of minors and maintenance.
- The Special Court of Central Bureau of Investigation to deal with cases of corruption and bribery.
- Some High Courts and District Courts, which house commercial courts which deal only with commercial matters of specified value, including matters relating to arbitration.
With the socialist aim of making legal remedies accessible and affordable to all, the Indian judicial system has constituted Lok Adalats and Gram Panchayats at the village level. These bodies apply traditional or customary laws and primarily work towards settling local disputes by using alternative dispute resolution mechanisms.
15. Are other quasi-legal authorities commonly used?
Apart from the courts, the Indian judicial system comprises tribunals, commissions and quasi-judicial authorities that derive their authority from specific statutes. These bodies include the:
- Central Administrative Tribunal, which adjudicates disputes that relate to the recruitment and conditions of service of public servants.
- National and State Human Rights Commissions for the protection of human rights.
- National Company Law Tribunal and National Company Law Appellate Tribunal, which adjudicate issues relating to company law, including insolvency and bankruptcy matters.
- Consumer disputes forums at national, state and district level to deal with consumer disputes.
- Competition Commission of India to promote and protect market competition.
- Ombudsman for banking, Insurance, Income tax and electricity matters.
- Income Tax Appellate Tribunal, Central Excise and Service Tax Appellate Tribunal and Sales Tax Appellate Tribunal to hear tax and excise matters.
Most quasi-judicial bodies oversee administrative actions and impose restrictions on administrative agencies.
16. Does the constitution provide for an independent judiciary?
There are several provisions under the Constitution of India that ensure an independent judiciary. For example:
- The judges of the Supreme Court and the High Courts have secured tenure and cannot be removed from office (unless there is proven misconduct or incapacity).
- The Constitution empowers the Supreme Court and the High Courts to punish any person for its contempt.
Appointments and transfers of judges of the Supreme Court and the High Courts is made through a collegium system. The collegium comprises the Chief Justice of India and a forum of four of the most senior judges of the Supreme Court. Remarkably, this system is not expressly found in the Constitution and was created by the Supreme Court while deciding a matter in 1998. Facets of an independent judiciary are found even in the subordinate judiciary, where matters relating to removal and disciplinary actions fall under the control of the High Courts.
17. How are members of the judiciary typically appointed?
Appointment of judges up to the highest level in the subordinate judiciary are either made by the state Public Service Commissions or the High Courts. These appointments are usually made on the basis of performance in dedicated examinations (that is, the Lower Judicial Services Examination or Higher Judicial Services Examination). Judges from the subordinate judiciary are regularly promoted and some are even appointed as High Courts or Supreme Court judges.
The appointment procedure in the superior judiciary is slightly different as the appointments are not made through judicial service examinations. High Court judges are appointed either through promoting judges from the subordinate judiciary or by direct elevation of advocates. Supreme Court judges are appointed either through promotion or direct elevation of judges from the High Courts. Supreme Court and High Courts judges are appointed through a collegium system, comprising the Chief Justice of India and a forum of the four most senior judges of the Supreme Court.
For a person to be eligible to sit the Lower Judicial Services Examination, he or she:
- Must be a citizen of India.
- Must be graduate in law.
- Should have been enrolled or qualified to be enrolled as an advocate.
The age limit for candidates varies from state to state and is usually between 21 to 35 years.
For the Higher Judicial Services Examination, a candidate must:
- Be a graduate in law
- Have the prescribed minimum experience as an advocate (usually seven years) or as a judge.
For a person to be eligible for an appointment as a High Court judge, he or she must:
- Be an Indian citizen.
- Be under the age of 62 years.
- Have either held a judicial office in India for ten years or practised as an advocate of High Court(s) for ten years.
For a person to be eligible for an appointment as a Supreme Court judge, he or she must:
- Be an Indian citizen.
- Be under the age of 65 years.
- Have been a:
- judge of a High Court for at least five years;
- an advocate of a High Court for at least ten years; or
- a distinguished jurist in the opinion of the President of India.
LITIGATION (CIVIL AND CRIMINAL)
18. Do the courts use an adversarial, non-adversarial or other system?
The Indian legal system is mainly adversarial. However, in certain aspects it is hybrid of adversarial and inquisitorial functions. Particularly the criminal justice system is not strictly adversarial, as some provisions in the criminal code require the judge to perform inquisitorial functions. For example, the judge will undertake active fact-finding exercises, such as:
- Directing further investigation.
- Assisting in the framing of charges.
- Calling any person as witness and procuring evidence
19. Who is responsible for gathering evidence?
Generally, the party seeking to establish a fact or allegation is responsible for gathering and producing evidence.
In civil cases, the claimant is usually required to gather evidence, but assistance from the court is permitted for the discovery of documents and setting up commissions. Assistance from the civil courts to collect evidence may be available in ongoing arbitrations.
In criminal matters, the law enforcement agencies are responsible for investigating and gathering evidence. Therefore, police authorities and specialised investigating agencies have been given wide powers of summoning, search, seizure and examination. Criminal courts have wider powers to gather evidence than civil courts, as they can issue:
- Warrants of arrest
- Proclamations for enforcing a person’s presence before the court (either for making a statement or for producing a document).
That said, the judges must usually play a neutral role in both civil and criminal matters.
20. Is evidence independently examined before a trial?
Before a trial, the party bringing the action is responsible for examining evidence. In criminal cases, the responsibility is with the prosecution, and in civil cases, with the claimant.
In criminal cases, the prosecution (assisted by the law enforcement agencies) must examine the evidence collected during their investigation. This examination has a broad scope, and usually involves witness examinations and preparing written witness statements. When the investigation is concluded and based on the examination of the available evidence, the prosecution can decide whether it has sufficient cause to bring charges against the accused. If charges are brought and before moving to trial, the criminal court only needs to take a prima facie view that there is sufficient basis to proceed against the accused (rather than sufficient basis to convict).
In civil cases, the pre-trial evidence is usually examined by the claimant (without any assistance from law enforcement agencies). Therefore, the scope, form or threshold of the evidence is immaterial to the claimant’s decision to make a claim before the court. However, before the court decides whether the civil action brought before it is admissible, the claimant must show that there is a prima facie case in its favour, based on the available evidence.
21. Are trials/hearings open to the public?
Barring a few exceptional circumstances where trials or hearings are conducted in camera, all trials or hearings, whether civil or criminal, are open to public at large. The Constitution of India provides that the judgments of the Supreme Court of India must be delivered only in open court.
All civil courts are open courts and generally accessible by the public. This is subject to the discretion of judge who may want to avoid public or any particular person from attending the court. Evidence of witnesses is also required to be taken in open court.
Much like civil courts, all criminal courts are also open courts. The recognised exception to the principle of open court are private proceedings in certain sensitive matters at the discretion of the court. These are usually matters which call for anonymity of the victim, such as matters involving rape or matrimonial disputes. In such cases, proceedings are carried out in private through video conferencing, and the public and the press do not have access to them.
22. Are reporting restrictions typically imposed in relation to a trial?
The Constitution of India provides for the right of freedom of speech and expression as a fundamental right. There is no absolute ban on reporting pending trials by the media or the public. Discussion and reporting of ongoing trials is often held by the media and the public on television channels and social networks. For example, live tweeting is also gaining popularity in India, especially in matters before the Supreme Court and the High Courts or high-profile trials in lower courts.
With the introduction of virtual hearings due to the 2019 novel coronavirus disease (COVID-19), the Supreme Court is currently considering live-streaming the proceedings of the Supreme Court and the High Courts. In a first in the country, the Gujarat High Court recently began live streaming its proceedings on YouTube
Lawyers appearing in ongoing matters also regularly give interviews to news channels. While reasonable restrictions can be imposed by the court if any such reporting will create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial, such restrictions are rare in practice.
Court orders passed during or after a trial are public documents and are generally made available on the website of the concerned court. The judgement of the Supreme Court, the High Courts and various other courts and tribunals are reported by various online and print publishers, and law reporters.
23. What is the main function of the trial and who are the main parties to it?
The main parties to civil matters are the claimant and the defendant. In criminal matters, the main parties are the state prosecution and the accused. The main function of a trial is assessing the available evidence by the court, and weighing and balancing it before pronouncing the verdict. A trial usually includes examination and cross-examination of witnesses, interrogation of the accused (defendant) and scrutiny of the evidence. Re-examination of witnesses may also be allowed (with the permission of the court). In some cases, the court can also direct further investigation to collect evidence while the trial is ongoing.
24. What is the main role of the judge and counsel in a trial?
Role of judiciary
In line with the adversarial system, the judge is a neutral arbiter. He or she facilitates the trial, weighs the facts of the case and considers the evidence collected against the standard of proof. However, judges have wide powers under both civil and criminal law not only to examine the parties or witnesses, but also to compel a person who is relevant to the hearing to attend court and give evidence.
Role of legal counsel
Legal counsel in India are officers of the court. They must assist the court in properly adjudicating the dispute and in the administration of justice. The counsel must also advise the client, keep client information confidential (unless it is required to be disclosed by law) and represent them in legal proceedings in the best possible manner.
25. To what extent are juries used?
The jury system has been abolished in India since 1959.
26. What restrictions exist as to the evidence that can be heard by the court?
The evidence law of India has detailed provisions on admissibility or inadmissibility, and relevancy or irrelevancy of evidence. Broadly speaking, evidence can be primary or secondary. Secondary evidence can be given only if (under the “best evidence” rule):
- There is no better evidence (that is, primary evidence, which is required to be given first).
- A proper explanation is given for the absence of primary evidence.
Both oral and documentary evidences (including electronic records) are admissible. Only direct oral evidence in personal knowledge and experience is admissible. Hearsay or derivative evidence is inadmissible, but this rule is not absolute. For example, a dying declaration can be admissible as hearsay evidence.
27. Which party has the burden of proof in a trial and at what standard is this burden met?
The burden of proof in both civil and criminal proceedings is either on:
- The party that would fail if no evidence were given on either side.
- The party asserting a claim or who intends to persuade the court of any fact.
If any fact is in the special knowledge of a person, the burden of proof is on that person to prove the fact. This rule applies in all situations unless an exception is created by law. However, if the statutory or legal threshold is met by one party, the burden of proof shifts to the other side. For example, in proving the existence of a document, if a party adduces a photocopy (if the original is unavailable) and the other party claims the document is forged, that other party has the burden to prove it is a forgery.
In a civil suit, the standard of proof is “preponderance of probabilities” (that is, the occurrence of something in a certain manner was more likely than not).
Generally, in criminal matters, the standard of proof is to establish guilt “beyond all reasonable doubt”. However, departing from the general rule of evidence, in certain criminal or penal provisions (such as dowry death or customs evasion), the law requires meeting a bare minimal threshold by the prosecution to presume the guilt of the accused. The burden of proving otherwise then lies on the accused.
28. What verdicts can the court give?
In a civil suit, depending on the reliefs sought and the outcome of the case, the court can give a variety of verdicts. A verdict in favour of the claimant will typically be a money decree, a declaratory decree, or both. A verdict in favour of the defendant may result in the claimant being ordered to pay costs (if necessary).
In criminal matters, the verdict can be either a conviction or acquittal. Where more than one person is accused, the court can convict some parties and acquit the rest.
29. What range of penalties / relief can the court order upon a verdict?
On reaching a verdict, a civil court can grant all or any of the monetary or declaratory reliefs sought by the claimant in its claim before the court. A civil court will not usually grant any relief which is either not sought at all or is beyond what has been sought. Monetary reliefs can be general damages (whether liquidated or unliquidated) for a breach of contract, or special damages in special circumstances. A civil court can also grant incidental damages (such as reasonable expenses or costs). Indirect losses (for example, for reputational harm, or loss of business and opportunity) can also be granted, although the threshold of proving them is quite high. Only losses that have been proved can be compensated, as Indian law does not provide for windfall. Apart from monetary reliefs, declaratory reliefs (usually, permanent or mandatory injunctions) can be granted.
After a guilty verdict, depending on the nature of the crime and the statutory penalty prescribed, the criminal court can sentence the convict to simple or rigorous imprisonment (ranging from a few months to imprisonment for life), or the death penalty. A fine can also be imposed, if permitted under the statute. Upon conviction of corporate entities, Indian criminal law does not permit imposing punishment on their officers (unless specifically permitted by a statute).
Courtesy: Ashish Bhan