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Published : March 13, 2011 | Author : abhijeetaaryan
Category : Law - lawyers & legal Profession | Total Views : 20947 | Rating :

Abhijeet Kumar 1st year, BALLB National Law University Orissa

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 maintains order & discipline in the society and regulates anti-social behaviors & activities. As such two kinds of legal systems, which I am going to research, operate 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.

Legislation: India Legal System
Legislation, also known as statutory law, is the basic structure of present legal system of India. Statutory laws 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 easily 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:
· Indian Penal Code, 1860
· Indian Evidence Act, 1872
· Indian Contract Act, 1872
· Civil Procedure Code, 1908
· Government of India Act, 1919
· Government of India Act, 1935

Development of legislation in India
At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length. The Constitution of India is the guiding light in all matters executive, legislative and judicial in the country.

Some of the post-independence statutory laws in India are:
· Criminal Procedure Code, 1973
· Motor-vehicle Act, 1988
· Information Technology Act, 2000
· Right to Information Act, 2005

Common Law: World and Indian Legal System

Origin of Common law
Before the Norman Conquest in 1066, justice was administered primarily by county courts presided by the bishop and the sheriff, exercising both criminal and civil jurisdiction. Trial by the jury began in these courts.

Common law emerged after the Norman conquest of 1066 AD and it traces its origins to England. William I, by virtue of having conquered England, proclaimed that all rights based on land were now under the king. Hence the courts came under the administration of Norman rule and keeping of court came under this definition. Enjoying monetary benefits of the court were the intentions of the king. Hence the institution of Eyre was developed which consisted of four judges appointed by the king. Their main function was to review the activities of the county courts and hear cases of appeal. It was used as a tool to centralizing control over local court; the Eyre provided the structural basis for the development of a common law for England.

In 1154, Henry II institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national and reinstating a jury system – citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily jurisdictions. Henry II had developed the practice of sending judges from his own court to hear the various disputes throughout the country. His judges would give prima facie decisions according to what they interpreted the customs to be. The king's judges would then return to London and discuss the cases with other judges. These decisions would then be recorded and filed. With the due passage of time, a rule, known as stare decisis (also commonly known as precedent) developed, which is where a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles adopted by that earlier judge if the two cases had similar facts to one another. By this system of precedent, decisions became binding, and was replaced by an elaborate and consistent system of law that was common throughout the whole country, and hence the name, "common law."

History of common law in India
The common law system is a system of law based on recorded judicial precedents. It came to India with the invasion of British East India Company. A charter was granted to the company by King George I in 1726 for the establishment of “Mayor’s Courts” in Madras, Bombay and Calcutta. After company’s victory in Battle of Plassey its judicial functions expanded and by 1772 company’s courts expanded out from the three major cities. In the process, the existing Mughal legal system in these parts was slowly replaced. After the First War of Independence in 1857, the control of company territories in India passed to the British Crown. Being part of the empire saw the next big shift in the Indian legal system.

Privy Council acted as the highest court of appeal during the British Raj. The law lords of the House of Lords adjudicated cases before the council. The state sued and was sued in the name 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.
· In late 18th century, Mayor’s Court was replaced with a Supreme Court. This was the first attempt to create a separate and independent judicial organ in India, under the direct authority of the King. This court had jurisdiction over civil, criminal, admiralty and ecclesiastical matters and was required to formulate rules of practice and procedure. Appeals from this court lay to the Privy Council. Local civil and criminal justice was left under a system known as the “adalat system”.
· By mid 19th century, the adalat system and Supreme Court were abolished, a High Court was established in each presidency town, and more were envisaged in other provinces as well. Privy Council still received appeals from these courts. Thus, this created a uniform judicial system in India, which, in substance, has largely continued till today.
· The current Supreme Court of India enjoys the combined jurisdiction of the Privy Council and the Federal Court, which are no longer in existence. The predecessor of the present Supreme 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
After 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 project is that common law don’t have a binding value but have a persuasive value in Indian Legal System. This is observed because we have a similar common law background as United Kingdom.

Common law, also known as case law, conveys from the name only that law made in this source of law are made by the decisions of the cases. This was mostly followed in UK, where if a case was brought up in the court of law and if the decision was given by the judge then that decision was taken as a law for the future cases. While in statutory law, laws are made by keeping future cases, which may arise, in mind.

The power to judiciary for law making is not good. Judges are not law makers. They are just to interpret law. Primary job of a judge is to adjudicate. A Judge cannot do anything 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.

In precedent, if the judge will say, ‘I follow the X rule.’ So after the decision is given, that X rule becomes a law. These laws were binding on all lower courts and at par and these precedents were only been allowed to be overruled by a court of higher jurisdiction. This was the greatest fault in this law system. The reason was because House of Lords, 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.

Further, I have also analyzed that legislation can make law on its own initiatives. It does 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 RTI, Shri Surinder Singh Rajpurohit, President, RIICO Industries Association, F- 8,Phase-III, Bewer- 305901.Letter dt 13-02-2009 received in DFCC on 20-02-2009 Deposited Rs.500/- Under RTI for information and document.
Another power which lies with the statute making body is that if they feel that any previous law, maybe a precedent or even a codified law is unjust then they can abrogate that law. Legislation can also abrogate its own law. In a famous case of M C Mehta v Union of India, it was witnessed how a common law principle was changed. Strict liability was abolished and principle of absolute liability was set as new law in similar circumstances.
Now as per the present scenario in Indian Legal System, one can easily figure it out that statutory laws are now made for almost all areas of crimes and wrongs. There are few 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 Flethcher which dealt with principle of strict liability was considered in India but few parts of the judgments were overruled.

So, as of the present state of Indian Legal System we can easily analyze from the research that Statutory Law is prevailing over the case law as far as India is concerned

While comparing legislation with common law, it can be concluded that statutes generally have the power to change the established common law, but the common law cannot overrule or change statutes. A statute can only be amended or overruled by a later and a separate statute. This relationship reflects the legal & political doctrine of – parliamentary sovereignty- the recognition & acceptance that Parliament is the supreme law making body of the land though, such an authority may not be absolute and it may be limited by some other exercises. Nevertheless, save for these possible limits in extreme circumstances the judges must normally apply statutes, even if they are contrary to the established common law.

So, from the research I conclude that even though the Indian Legal System is based upon the structure of common law, but at the present time legislation or the statutory law have more influence and it prevails case law.
# Brief history of law in India, Bar Council of India, http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom/
http://www.britannica.com/EBchecked/topic/188090/English-law  ; British History: Middle Ages "Common Law - Henry II and the Birth of a State". BBC., at http://www.bbc.co.uk/history/british/middle_ages/henryii_law_01.shtml. (Oct 29, 2010)
# Brief history of law in India, Law in British-ruled India, at http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom / ( Oct 30,2010)
# "India, being a common law country" (PDF)., at http://supremecourtofindia.nic.in/new_links/Abu_Dhabi__as_delivered.pdf . (2010-10-30)
# List of RTI cases, at http://dfccil.org/wps/wcm/connect/8ae5e2804082713dbf45bfc33635e896/List_of_the_RTI_cases.pdf?MOD=AJPERES&CACHEID=8ae5e2804082713dbf45bfc33635e896 (Oct 30, 2010)
# M.C.. Mehta v. Union of India and Ors. [(1996) 8 SCC 462].
# Rylands v. Fletcher (1868), L.R. 3 H.L. 330.
# Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law", [htm], 8 Dec. 2008: at , (Oct 2, 2010)
# "Debate #3 Glossary". Hansard Society. November 2003. At http://www.headsup.org.uk/content/default.asp?page=s41_5 , (Oct 2, 2010)

Authors contact info - articles The  author can be reached at: abhijeetaaryan@legalserviceindia.com

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Article Comments

Posted by Sukrit Sood on July 23, 2014
Any case laws stating that statutory laws take precedence over common law?

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