common law what is legislation and what law is about, Exams of Legal English

Download common law what is legislation and what law is about and more Exams Legal English in PDF only on Docsity! “COMMON LAW FOUNDATION IN INDIA UNIT 3A Introduction First question which arise by listening legal system in mind is, what is law? In general, a rule of being or of conduct, established by an authority able to enforce its will; a controlling regulation; the mode or order according to which an agent or a power acts. It & discipline in the society and regulates anti-social behaviors & maintains order am going to research. operate activities. As such two kinds of legal systems, which | worldwide to elaborate rights and responsibilities of citizens in a variety of ways, They are: ‘legislation and common law.’ My research basically aims at distinguishing the authority and relevance of both, Legislation and Common Law. It’s a vast topic to research upon but I am researching on the history and development of common law and legislation in India, The Indian legal system is based upon both legislation and common law. Legislation is also known as statutory law while common law is termed sometimes as case law. Legislation and common law are two very different legal systems. But in the present scenario convergence of both can easily be seen and felt as India is having both of them in its system. Common law, also known as case law, is law developed by judges through decisions of courts and similar tribunals. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions, If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision. The principle by virtue of which this is followed is called stare decisis. On the other hand, legislation is relatively new concept in judiciary and these laws are made by legislature. A legislature is a type of deliberative assembly with the power to pass, amend, and repeal laws. It originated while setting up of democratic government. The reason for its development in a certain kind of government is because its application is possible in the presence of a governing body and as we are very much familiar with the fact that governing body is a primary feature of democratic state. Legislations are also known as statutory laws and they can be set down by the national, state legislature or local municipalities. Scanned by CamScanner td a Legislation: India Legal System nt Suan ee as statutory law, is the basic structure of present Iegal system of t jaws are based on the statutes enacted and imposed by the legislature. A statute is a formal act of the Legislature in written form. It declares the will of the Legislature. It may be declaratory of the law, or a command which must be obeyed, or a prohibition forbidding a course of conduct or a particular act. Legislation, at its best, is not a combat between ideological opponents but instead a sincere search for the best governing rules for our society. A conscious legislature might casily understand that it cannot foresee all future developments affected by its statute and might therefore wish to grant a trusted judicial agent the discretion to adapt its commands to the circumstances of adjudication. If so, pragmatism fits neatly within the delegation context. A statute is the crystallization of an objective which may be political, social, economic or even personal but there will be a motive that lurks behind it, A group of persons may be interested in a particular measure which may call for the exercise of the legislative power of the state. Legislation then becomes the means to attain an end. These groups could be: + Political parties + Pressure groups * Departmental officials + Commissions of Inquiry + Parliamentary committees * Public and private organizations Although some groups have a greater or more direct influence on the legislature than others, they are all united in the same conviction that a situation exists which calls for legislation. Legislation in India Legislation in India seeks its history from British rule period. Since the time when India Became a colony of Britain, legislation, as a source of law, started growing at a slow rate at beginning but now in the present scenario, we see that legislature is the most important source of law. Few pre-independent legislation which are still valid and followed in India are: Scanned by CamScanner , Madras, Bomba: . y and Calcutts functions expanded sn _ Afier Company’s victory in Battle of Plassey its judici y 1772 Company's courts expanded out from tre tee ‘or a ¢ three major aide ie legal system in these parts was slowly pendence in 1857, the control of company territories in Indi ‘ next bi ig shift in 1 In assed to the British TOW. we a pass ‘Own ¢ fa dt eg Crov Being part of the empire saw the nes cities. In the process, the existing replaced. After the First W Privy Council act i the ones at ne *s the highest court of appeal during the British Raj. The law lords of thes . . r 8 adjudicated cases before the council. The state sued and was sued in ame of the British sovereign in her capacity as Empress of India. Coding of law also began in earnest with the forming of the first Law Commission Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862, The Code of Criminal Procedure was also drafted by the same commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872). Shaping of the Judicial Structure India, being a common law country, derives most of its modern judicial framework from the British legal system. There exists a uniform system of justice dispensation. with the Supreme Court at the apex and High Courts in the States (provincial units in India). as well as numerous other subordinate courts. Thus, in the / strict sense, the Indian judicial system does not operate on wholly federal lines, as may be seen in the United States. It does not have a dual system of courts and the judiciary is one integrated whole. There are no federal courts as such to decide federal questions exclusively. The British rule in India brought about the introduction and development of the common law legal system, on which India has based its present judicial framework. Stages of its development can be seen as follows: + In early 17th century, three presidency towns introduced Admiralty Courts(in Bombay and Madras) and Collector’s Court(in Calcutta). + In 18th century, uniform judicial system was made for all presidency towns and was then called Mayor’s Court. After the Royal Charter, the court derived their authority directly from the crown. A system of appeals to the Privy Council was initiated, and this marked a historic landmark in the development of the Indian Judicial system, because the Privy Council functioned as the last court of appeal in India for more than 200 years. Scanned by CamScanner  P yy late 18th century, Mayor’s Co frst at empt (0 create a separate ni Was replaced with a Supreme Court, Thi authority of the King, This eo and independent judicial organ in India : 7 Is was the ecclesiastical matters and w, urt had jurisdiction over civil, crimi al vk “ eet as required to formulate rules of saci ad eee procedure. Appeals from thi m this court | ay to the Pri . under a system k Y lo the Privy Council. Local civil and criminal justi nown as the “adalat system” il and criminal justice was left + By mid 19th y h centu : Conf is EAMG ry, the adalat system and Supreme Court were abolis! . it wi stablished in each presidency to ere abolished, a High provinces as well. Privy Couneil st yo own, and more were envisaged in other created a uniform judicial neil still received appeals from these courts. Thus. this judicial system in India, which; i ace fil today. y' ndia, which; in substance, has largely continued till - The c r 6 an Co a ihe heer el Ohare eb the combined jurisdiction of the Privy present Supreme C 4 ich are no longer in existence. The predecessor of the ; preme Court of India was the Federal Court (established in 1937), which heard appeals from the High Courts, and whose decisions were appealable to the Privy Council. Research Analysis: Legislation v Common Law Afier doing the research on the both prominent source of law, which are followed in India, I have analyzed few things. The most important observation I made from this 1 is that common law don’t have a binding value but have a persuasive value in projec served because we have a similar common law Indian Legal System. This is ob background as United Kingdom. conveys from the name only that law made in this ases. This was mostly followed in UK. if the decision was given by the Je in statutory law. wn as case law, he decisions of the c court of law and law for the future cases. Whi hich may arise, in mind. Common law, also kno source of law are made by t where if a case was brought up in the c judge then that decision was taken as a laws are made by keeping future cases, W' The power to judiciary for law making is not good. Judges.are not law makers. They are dicate. A Judge cannot do anything just to interpret law. Primary job of a judge is to adju unless a matter is sent to the court before them. They are not capable of making laws for future problems. Under the provision of common law, the decisions given by the judges are considered as laws and are well known as precedent. ‘] follow the X rule.” So after the decision is given, In precedent, if the judge will say, all lower courts and at par and that X rule becomes a law. These laws were binding on wi Scanned by CamScanner  recedents were only been allowed to be overruled by a court of higher jurisdiction. these P he greatest fault in this law system. The reason was because House of Lords, ‘This was t being the top most court of law in UK, if deliver any wrong judgment then even it itself? was not having the power to overrule it. Amendments took place and the House of Lords were given power to overrule its previous judgments. 1 make law on its own initiatives. It does Further, I have also analyzed that legislation car not need any case to be held up in court of law to make a law. It has power to make law and do make law for the future problems. For example, we have Information Technology Act, 2000. This Act was enforced to control different types of cyber crimes in India. Another most important Act which came into being for benefits is Right to Information Act under which we can ask information from any authority. In one of the cases of RTL. Shri Surinder Singh Rajpurohit, President, RIICO Industries Association, F- 8,Phase-IIlI. Bewer- 305901.Letter dt 13-02-2009 received in DFCC on 20-02-2009 Deposited Rs.500/- Under RTI for information and document. at if they feel that any fied law is unjust then they can abrogate law. In a famous case of M C Mehta v le was changed. Strict law in similar Another power which lies with the statute making body is th previous law, maybe a that law. Legislation can a Union of India, jt was witnessed liability was abolished and principle of abso precedent or even a codi Iso abrogate its own how a common law princip! Jute liability was set as new circumstances. an easily figure it out that in Indian Legal System, one © d wrongs. There are few Now as per the present scenario mes an statutory laws are now made for almost all areas of cri areas even now where the law has not been codified completely and its example is tort law. Many of the cases in India follows or have followed precedents of common law. One of the precedents set up in Ryland v Fiethcher which dealt with principle of strict liability was considered in India but few parts of the judgments were overruled. Scanned by CamScanner