“The common law is judicially created law that is developed on a case by case basis. The common law, though not to be found in the written records of the realm, yet has been long well known. It is coeval with civilized society itself, and was formed from time to time by the wisdom of man.”
SHAPPING OF THE JUDICAL STRUCTURES
India being a common law country derives most of its modern judicial framework from the Bristish legal system. There exists a uniform system justice dispensation, with the Supreme Court at the apex and High court in the states (PRIVICIAL UNITS IN India), as well as numerous other subordinate courts. Thus, in the strict sense, the India judicaial system does not operate ion 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 question 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:
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 by Supreme Court. This was the firs attempt to create separate and independent judicial organ in India, under the direct authority of the King. This court has jurisdiction over civil, criminal , admiralty and religious matters and was required to formulate rules of proactive and procedure. Appeals from this court lay to the Privy Council Local civil and criminal justice was left unde3r 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 province as well. Privy Council still received appeals from these courts. Thus, this created a uniform judicial system in India, which, in substance, has laregetly6 continued till today. The current Supreme court of India enjoys the combined jurisdiction of 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 (establish in 1937), which heard appeal from the High Courts and whose decision were appealable to the Privy Council.
RESEACH ANALYSIS: LEGISLATION Vs COMMON LAW
After doing he research on the both prominent source of law, which following India. The most important observation what made from this project is that common law don’t have a binding values 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 case. Awhile in statutory law, laws are made by keeping future cases, which may arise in mind.
The power of judicial for law making is not good. Judges are not law makers. They are just to interpret law. Primary job of the 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 decision given by the judges are considered as laws and are well known as precedent.
In precedent, if the judge will say, ‘follow the X rule’. So after the decisions given that X rule become a law. These laws were bring 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, been the top most court of law in UK, if deliver any wrong judgment then even it itself was 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 came 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 we can ask information from any authority.
So, as the present state of Indian Legal System we can easily analyse from the research that Statutory Law is prevailing over theater law as far as India is concerned.