THE THREE BEST THINGS ABOUT THE INDIAN LEGAL SYSTEM
By
PORFESSOR (DR.) GURJEET SINGH
VICE-CHANCELLOR
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,
PATIALA (PUNJAB) INDIA
Broadly speaking, the legal system of a country is a part of its social system and as
such reflects the social, economic, political and cultural characteristics of that society.
Therefore, the legal system has to be understood in the context of socio-cultural
milieu in which it operates. A legal system consists of certain basic principles and
values, a set of operational norms including rights and duties of the citizens spelt out
in the laws - central, state and local, institutional structures for the enforcement of
those laws and a cadre of legal personnel, endowed with the responsibility of
administering the system.
The Indian legal system is, by and large, the gift of the British rulers. Originally an
English transplant with Anglo Saxon roots, the legal system in India has grown over
the years, nourished in the Indian soil. As a matter of fact, what was intended to be an
English oak, has turned into a large, sprawling Indian banyan tree, whose social roots
have descended to the ground to become new trunks. According to one view, the legal
system in India is still an alien one to the majority of its citizens whose legal culture is
more indigenous and whose contact with the formal legal system, that is, the imported
British Model, is marginal, if not altogether non-existent. That is why it is widely
believed that the language, technicality and procedure of the inherited legal system
are indeed some of the factors that limit access to justice for a vast majority of
illiterate, ignorant and impoverished people of the country. Notwithstanding all this,
the rights and benefits conferred by the Indian Constitution and various other laws
enable people to enjoy the glow of freedom in a highly democratic set up. In the
paragraphs below, I would like to highlight atleast the Three Best Things about the
Indian legal system. These are: (1) The Written Constitution; (2) The Rule of Law;
and (3) Independence of Judiciary. I would like to deal with each of these points
briefly.
(1) THE WRITTEN CONSTITUTION
The constitution of a country is the fundamental law of the land and it is variously
described depending upon the nature of the polity and the aspirations of the people in
a given society. Constitution is generally a written document and it assumes the
character of a unitary or a federal form of government. The Indian Constitution, that is
often considered to be one of the most well written documents, declares India to be a
sovereign, socialist, secular, democratic republic and represents the collective will of
the entire nation, and is, as such, the reservoir of enormous power. It is the
cornerstone of our republic. The Indian Constitution, which is a unique blend of
rigidity and flexibility, also describes the methodology by which this power conferred
on the State is to be exercised for the greatest benefit of the greatest number of
people. It is a political document, sometimes also called as the ‘Bag of Borrowings’
that distributes power of the State amongst different organs, that is, between central IALS Conference
Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World
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and state governments; legislative, executive and judicial wings of each government
and regulates its exercise in its incidence on the people. Our form of government is
democratic and republican and the method is parliamentary through the adult
franchise. With ninety four amendments in it, the Indian Constitution is one such
vibrating document in accordance with which our republic has systematically been
governed since independence. One can proudly say that we in India are enjoying the
60th glorious year of our freedom and the one document that has not failed is “Our
Indian Constitution’ and further that it is our sacred constitution only that we Indians
have survived as a single united nation and that is perhaps the greatest thing about the
Indian democracy as well as about the Indian legal system.    
(2) THE RULE OF LAW
The second important component of the Indian legal system is ‘Rule of Law’.
Though the term ‘Rule of Law’ is derived from the French phrase la principe de
legalite (the principle of legality) that refers to a government based on the principles
of law and not of men, in India, the concept of ‘Rule of Law’ can be traced to the
ancient scriptures. According to them, Law is the ‘King of Kings’ and that there is
nothing higher than the law. In case of Indian democracy in particular, the concept has
assumed different dimensions and means that the holders of public powers must be
able to justify publically that the exercise of power is legally valid and socially just.
In India, the concept of ‘Rule of Law’ has developed many facets that are not only
negative, providing constraints on governmental action, but affirmative, too, imposing
an affirmative duty of fairness on the part of government. In the first place, it is
obligatory that power should not be exercised arbitrarily, meaning thereby that, it
should be exercised within the statutory ambit; and the purported exercise of it would
not just be ultra vires, but shall, in a true sense of the term, arbitrary. The law courts
in India have gone a step further to insist on the specific positive content of the rule of
law obligations. These include the rules of natural justice that have to be followed not
just in a quasi-judicial action but often also in purely administrative action. Very
fortunately, the courts in India have been able making concerted endeavours to
establish a ‘Rule of Law Society’ by insisting on ‘fairness’ in every aspect of the
exercise of power by the State. It goes without saying that the principle of rule of law
runs though the Indian Constitution like a golden thread.
(3) INDEPENDENCE OF JUDICIARY
The third important feature of the Indian legal system is independence of judiciary
that is the logical concomitant of the broad adherence to the ‘Doctrine of Separation
of Powers’, a doctrine that is traceable to Aristotle, but to which the writings of the
thinkers like John Locke and Montesquieu have given a base on which modern
attempts to distinguish between legislative, executive and judicial power is grounded.
The theory of separation of powers signifies three formulations of structural
classification of governmental powers: (i) that the same person should not form part
of more than one of the three organs of the government. For example, ministers
should not sit in Parliament; (ii) that one organ of the government should not interfere
with any other organ of the government; and (iii) that one organ of the government
should not exercise the functions assigned to any other organ. In India, though thedoctrine has not been accorded a constitutional status in the strict sense, one of the
articles in the Indian Constitution (Article 50) enjoins separation of judiciary from the
executive. The Supreme Court of India, in one of the leading cases, has held: “Indian
Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government
have been sufficiently differentiated and consequently it can be very well said that our
Constitution does not contemplate assumption by one organ or part of the State of
functions that essentially belong to another.” In India, the system of checks and
balances operates so as to confer independent jurisdiction to all three organs of the
state including judiciary. Under the constitutional framework, judiciary in India has
been vested with sufficient powers to act independently and also to step in where
other two organs of the state fail to perform the powers assigned to them. The modus
operandi adopted in appointments, the fixed tenure of the judges and the power to
punish for the contempt are some of the important features of the independence of
judiciary in India. It goes without saying that an independent judiciary is the backbone
of a successful democracy and we are fortunate that our judiciary is independent and
its example is to be emulated by the world.
In the light of the above, one reaches an inescapable conclusion that the Indian
Constitution stands tallest amongst all the constitutions of the world as its underlying
objectives are the promotion of rule of law that runs like a golden thread through the
entire fabric of the Indian Constitution and maintenance of the independence of
judiciary.