Unit - 3
Introduction and Basic Information about Legal System
Introduction
Indian Legal System
Indian law refers to the system of law Indian law refers to the system of law which operates in India which operates in India. It is largely based on English common law. It is largely based on English common law. Various Acts introduced by the British are Various Acts introduced by the British are still in effect in modified form today. Still in effect in modified form today. Much of contemporary Indian law shows Much of contemporary Indian law shows substantial European and American substantial European and American influence.
Source of law:
1. Custom:
Habits are one of the oldest sources of law. In ancient times, social relations gave birth to several uses, traditions and customs. These were used to resolve and determine disputes between people. Customs were customary and customs violations were disapproved and punished by society. Initially, the social system began to work on the basis of some accepted conventions.
Gradually, the state emerged as an organized political system of people responsible for maintaining peace, law and order. Naturally, we also started by creating and enforcing rules based on customs and traditions. In fact, most laws came about when the state began converting customs into authoritative and binding rules. Habits were certainly a rich source of law.
2. Religion and morality:
Religion and norms of religion naturally appeared in all societies when humans began to observe, enjoy, and fear the power of nature. These were accepted and worshiped as excellent heavenly powers (gods and goddesses).
Later, religion began to regulate people's behavior, calling for "God's sanctions," "fear of hell," and "potential fruits of heaven" to enforce religious norms. It made people accept and obey religious norms. Several religions have emerged to develop and prescribe a clear code of conduct. The rules of morality have also appeared in society. These defined what was good, what was bad, what was right and what was wrong.
Religious and moral norms of society provided the country with the materials needed to regulate the behavior of its people. The country has converted some moral and religious rules into its law. Therefore, religion and morality were also important sources of law.
3. Law:
Since the advent of the legislature in the 13th century, legislation has emerged as a major source of law. Traditionally, nations have relied on customs and royal legislation or orders to regulate people's behavior. Later, the legislature emerged as a government agency. It began to transform customary rules of conduct into people's clear and enacted rules of conduct.
As a sovereign, the king began to give them his approval. Legislature soon emerged as the primary source of law, and the legislature became recognized as the legal sovereign, the state legislative body. In modern times, law is the most powerful, prolific and direct source of law. It has come to be recognized as the primary means of formulating the will of the state into binding rules.
4. Delegated legislation:
For several urgent reasons, including lack of time, lack of expertise, and growing demand for legislation, the state legislature believes it is essential to delegate some of its legislative power to the executive branch. I will. Executives then create laws / regulations under this system. It is known as mandate legislation. Delegated legislation is now a major source of law. However, mandate legislation always works under the good legislative powers of the legislature.
5. Judicial decision:
In modern times, judicial decisions have become an important source of law. It is the court's responsibility to interpret and apply the law in a particular case. The court resolves people's disputes in the cases that come before them. Court decisions, or judicial decisions, are binding on the parties to the proceedings. These are also accepted as laws in future cases. However, not all judicial decisions are legal.
Only judicial decisions made by courts recognized as the Supreme Court or the Court of Records, such as the Supreme Court or the Supreme Court and the High Court of India, are accepted and used as appropriate law. The lower court may settle the proceedings based on such a judicial decision.
6. Equity:
Fairness means fairness and a sense of justice. It is also the source of law. To determine a case, the judge interprets and applies the law to a particular case. However, the law cannot be fully met in each case, and these may be silent in some respects. In all such cases, judges rely on fairness and act according to fair play and a sense of justice. Fairness is used to provide relief to victims, and such decisions serve to set future rules. Such fairness acts as a source of law.
7. Scientific commentary:
The work of prominent legal scholars always contains scientific commentary on the Constitution and the laws of each state. These are used by the courts to determine the meaning of the law. This helps the court interpret and apply the law.
Legal scholars not only discuss and explain existing legislation, but also propose rules of action that may occur in the future. It also highlights the weaknesses of existing legislation and how to overcome them. The interpretations given by them help judges interpret the law and apply it to specific cases.
Works by legal scholars such as Blackstone, Dicey, Wade, Phillips, Seeravai and B.Pi. Lau, D.D. Buses and the like have always been highly evaluated by Indian judges. Scientific Commentary Law scholars always help the development and evolution of law. Therefore, these also constitute the source of law. Therefore, there are several sources of information in the law. However, in modern times, legislative legislation is the main source of law.
Court Structure
The purpose of the civil proceedings is not the explicit punishment or correction of the defendant, or the setting of an example for others, but the possible restoration to the position that the parties would have occupied in the absence of legal error. Is. The most common civil remedies are monetary damages decisions, but others include injunctions ordering defendants to or refrain from doing certain acts, and decisions to return property to legitimate owners. There is also. For example, a celebrity may obtain an injunction requiring a so-called "stalker" to stay within a certain distance from the celebrity at any time.
Civil lawsuits usually do not result from criminal activity. A person who breaks a contract with another person or causes physical injury due to negligence may not have committed a crime (that is, he has not committed a crime against the public), but may not be prosecuted by the public. There are only civil mistakes. However, there are overlapping areas. One incident can cause both civil liability and criminal prosecution. In some countries (such as France), both types of responsibilities can be determined in a single procedure under a concept called gluing. This allows the injured party to file a civil action in criminal charge and agree to comply with the consequences. .. This eliminates the need for two separate attempts. In common law countries, there is no such procedure (even if civil and criminal jurisdiction are combined into a single court). Two separate actions should be independent of each other. For example, in the United States in the mid-1990s, former soccer star O.J. Simpson was tried in a California criminal court for murdering his ex-wife and her friend. He was acquitted in the proceeding (conviction demanded proof "beyond reasonable doubt"), but was liable in subsequent civil proceedings (conviction demanded proof by "superiority of evidence"). Was asked. And he was ordered to pay compensation to the victim's family. Such incidental civil proceedings are attractive to victims of crime, especially in the United States, where civil courts have dramatically lower proof standards than criminal courts.
General jurisdiction court
Some courts deal only with criminal cases and some courts deal only with civil cases, but a more common pattern is that a single court has both civil and criminal jurisdiction. Examples of such courts include the High Courts of England and Wales, and many first-instance courts in the states of the United States. Canada is a useful example. The federal government has the exclusive power to legislate criminal law, and the state has the power to legislate civil law. Virtually all cases, criminal and civil, occur in district courts. Often, these referees are called general courts of jurisdiction and may not have jurisdiction over certain types of cases (such as immigration cases) assigned to specialized referees, but that they can handle almost all types of disputes. Means Such courts are often referred to as higher courts because they are empowered to handle serious criminal cases and significant civil cases involving large sums of money. In addition, most High Courts (for example, the US Supreme Court and the US State Last resort Court) are courts of general jurisdiction and hear both civil and criminal appeals.
Even if the court has general or very broad jurisdiction, the court may be organized into specialized departments, such as those that handle criminal cases, those that handle civil cases, those that handle juvenile cases, etc. there is. The advantage of such an arrangement is that it was placed in the wrong branch because it allows judges to move from one type of job to another, and judges are relatively easy to transfer administratively. Never miss an incident.
Court of limited jurisdiction
There are many types of professional referees that vary from country to country. Some deal only with the management of the property of the deceased (probate court), some deal only with dispute between merchants (commercial court), and some deal only with dispute between employer and employee (labor court). Many democratic constitutional courts that emerged in central and Eastern Europe in the 1990s also limit jurisdiction limited to constitutional disputes. All of these courts have limited jurisdiction, but they can exercise considerable power.
The juvenile court, which is empowered to deal with illegal activities by children and sometimes also to deal with child negligence or abuse, is a particularly noteworthy court with limited jurisdiction. Juvenile court procedures are much more informal than adult criminal court procedures, and the facilities available for pretrial child detention and, if necessary, post-trial imprisonment are different. Children are assumed to be less responsible for their actions because they are assumed to be unable to think reasonably well. Therefore, juvenile courts usually focus on saving children rather than punishing them. American attitudes are bifurcated on the subject of juvenile law. On the one hand, when minors are victims or are at risk of being victimized, law and society usually agree that the purpose of law is to protect innocent people. This is evident in legislation designed to protect minors from exposure to obscene material and sexual predators, as well as divorce and custody legislation. However, violence by minors often changes public and political sentiment, and minors are no longer innocent and are not considered worthy of legal protection. Some seek rehabilitation of young people and desire generous punishment, while young people of all ages who have committed crimes are "mature enough to commit crimes and to be sentenced accordingly." Some people think.
Traffic courts are also very common and affect so many people that they deserve mention. They handle car crimes such as speeding and improper parking. Their procedure is a summary and the number of cases is large. Disputed trials are extremely rare.
Finally, most jurisdictions unfortunately have institutions called "inferior" courts in search of better terminology. These are often placed by part-time judges who are not necessarily legally trained. They handle minor civil cases involving small amounts of money, such as bill collection, and minor criminal cases involving minor penalties. In addition to final handling of minor criminal cases, such courts carry out the early stages of more serious criminal cases, such as amending bail, advising defendants' rights, appointing lawyers, and conducting preliminary hearings. You can process it to determine if the evidence is sufficient to justify retention. Defendant for trial in a higher "advanced" court.
Appeal court
The trials described so far are the Trial Court or the "Trial Court". They look at the parties to the dispute, listen to witnesses, receive evidence, find facts, apply laws and determine outcomes.
The Court of Appeals will be placed above the Court of First Instance, reviewing their work and correcting any errors that may have occurred. The Court of Appeals is usually a university organization consisting of multiple judges rather than a single judge presiding over the Court of First Instance. The jurisdiction of the Court of Appeals is often general. For example, specialized courts of appeal that deal only with criminal and civil appeals are rare, if not unknown (for example, Texas, USA, has separate "Supreme Courts" for civil and criminal cases). The French Conseil d'Etéries and the Federal Constitutional Court of Germany are also specialized judicial courts.
The national judicial system is organized hierarchically. At the lowest level, there are numerous courts of first instance scattered throughout the country. Above them are a small number of first-level courts of appeal, usually organized by region. And at the top is a single court of last resort.
Appeal reviews are rarely done automatically. It usually has to be sought by the party afflicted by the court ruling below. As such, and because appeals can be expensive and useless, there are far fewer appeals than trials, and often far more second appeals than first ones when successive appeals are available. It will be less.
Due process principles generally create the right to at least one retrial by the High Court, so the Interim Court of Appeals is usually obliged to hear the cases appealed to them. Like many State Supreme Courts and the US Supreme Court, the High Court is not obliged to hear a particular case, and in fact they make decisions in only a small proportion of the cases they have sued.
There are three basic types of appeal review.
The first is a retrial of the case, where the Court of Appeals conducts a second trial of evidence, finds new facts, and generally proceeds in much the same way as the court that first appealed the decision. This "trial de novo" is used in the first examination phase in common law countries, but only if the first hearing is conducted by a "lower" court. It is a minor case only and there is no official record of the procedure.
The second type of review is based in part on "Dossier". This is a record of the evidence received and the results of the investigation conducted in the court below. The Court of Examination has the authority to supplement the testimony by revisiting the same witness or obtaining additional evidence, but it is not necessary and does not have to be done frequently. The conclusion of the law. This type of proceeding is generally the first proceeding in a civil law country, even if the original proceeding was filed in a higher court with a professional judge assigned and authorized to hear important or serious cases. It is popular at one stage.
The third type of review is based solely on the written records of the proceedings in one or more courts below. The Court of Examination itself does not receive direct evidence, but finds in the records whether an error of a serious nature has been committed that would require the revocation or amendment of the judgment under review or a new trial in the following courts: We are focusing on doing. Emphasis is placed on legal issues (both procedural and substantive) rather than factual issues, and courts usually provide views on legal issues at stake (including relevant case law). Request a brief from the parties to the proceedings. This type of review is widespread in both civil law and common law countries at the highest level of appeal. It is also used in lower-level common law countries if the appeal includes a higher court decision. The purpose of this type of review is not only to ensure correct results in individual cases, but also to clarify and explain the law in the manner described above (ie, making case law). Lower courts usually do not write or publish opinions, so they have little to do with enacting the law. The Supreme Court of Appeals does so, and it is their opinion that guides future cases.
Constitutional court
The transition to democratization in many parts of the world in the second half of the 20th century has led to a surge in the number of courts subject to constitutional rulings, but the formal powers of these high courts vary widely from country to country. Some are specialized courts for constitutional review, commonly referred to as the Constitutional Court or the Constitutional Court (Spain, Portugal, Italy, Germany, Greece, etc.). Others combine the functions of legislative and court of Cassation judicial review, or inferior court decision review (e.g., Ireland, USA, Denmark). And yet others use only the power of the Court of Cassation (France [see Court of Cassation], Belgium, Luxembourg, and the United Kingdom). Some countries have multiple high courts with different functions and powers. For example, Italy has a Constitutional Court, which has the sole authority to conduct constitutional reviews, and the Supreme Court, which has the authority to examine ordinary court decisions regarding legal integrity. Egypt also maintains a Court of Cassation that monitors the uniformity of inferior court fidelity to the law, but only its Supreme Constitutional Court declares the law unconstitutional and makes decisions and rulings on the basis of legislative intent. I have the authority to do so. In Japan, the Supreme Court is the only court explicitly authorized to exercise judicial review. Its authority is limited to cases involving opposing parties and will not accept questions from government officials. The role orientation of Japanese judges and the judicial system is dispute resolution. As a result, courts are reluctant to exercise judicial review or engage in judicial activities. In most systems, the authority to withdraw the actions of the national legislature is concentrated on professional referees. In a few countries, including Portugal and the United States, decentralization, or "diffusion," has empowered all courts to conduct judicial reviews of legislation.
The exact circumstances under which the National High Court can exercise judicial review authority are also quite different. Some courts may exercise so-called "concrete" judicial review (the case or the review that accompanies the decision of the case) to withdraw legislation only in certain cases. Other courts are empowered to engage in "abstract" judicial review (examination of law for constitutional reasons without being applied to a particular pending proceeding). Some courts with the power of abstract review can exercise it before the law comes into force (ie, pre-review), while others can only exercise it after the law comes into force (post-review). ). Many of the democratic constitutional architects who emerged in central and eastern Europe in the 1990s have a powerful, centralized form of judiciary with judicial review authority in the Constitutional Tribunal and usually with the authority to be involved. You have selected the right. Both abstract and concrete reviews. The French and German Constitutional Courts may conduct abstract judicial reviews. Undoubtedly, the Portuguese Constitutional Court has the greatest jurisdiction, exercising both a concrete review of lower court decisions and an abstract review of all laws and legal norms. The US Supreme Court avoids the Advisory Opinion and does not conduct an abstract judicial review.
Federal system court
In many countries, such as the United Kingdom, France, and Japan, all courts (that is, ordinary courts that are distinct from government agencies) are single, within a single national refereeing hierarchy along the line just described. There is a judicial system. Other countries organized on a federal basis tend to have more complex court structures, reflecting the fragmentation of government power between central and local authorities. For example, in the United States, there are a total of 51 judicial systems, one for each state and one for the federal government. To a limited extent, federal court jurisdiction excludes jurisdiction exercised by state courts, but there are large areas of duplication and duplication. As long as the state law or constitution does not conflict with national law or the state constitution, the state court will be the ultimate arbitrator of the meaning of state law. At the top is the United States Supreme Court, which hears appeals not only from lower federal courts but also from state courts, as long as it presents federal questions that arise under the United States Constitution or federal law or treaties. If a state court proceeding contains only state law issues (for example, an interpretation of state law), the ultimate power is the State Supreme Court and cannot be appealed to the US Supreme Court.
The structure of courts in the form of federal government does not have to be as complex as it is in the United States. It is possible to have only one set of courts for a country, operated by the central government and handling all cases that occur under state and federal law. Germany is also a federal republic, dividing power between the federal and state systems. At the national level, there are five Supreme Courts and one Constitutional Court. The Supreme Court represents separate jurisdictions (civil and criminal, general administration, employment and trade union disputes, social policy, financial issues and taxation).
Another possibility is that each state or state has its own court system, handles all federal and state law questions, and has only a single Supreme Court for the central government to determine questions regarding central authority relationships. Is to maintain. And the relationship between the local government or the local government itself. This pattern is found in Canada and Australia.
Another problem with the form of the federal government is the frequent questioning of conflicts of law. Such questions relate to the choices made between the law of one jurisdiction and the law of another jurisdiction as a rule of decision in certain cases. Even with a single system, such problems are unavoidable. For example, a British court may be required to hear a proceeding resulting from a transaction made in France and decide whether English or French law applies. However, such problems occur much more often in the federal system, where laws vary from state to state and people move around very freely. Their activities in one state may be subject to proceedings in another state, and the court must decide which law should apply.
Cross-border court
Courts of cross-border jurisdiction have existed for quite some time (for example, the International Court of Justice [ICJ] was established in 1945 and replaced the international courts created after World War I). , In general they also existed. Weak to pay a lot of attention. However, recently, multinational courts such as the European Court of Justice (EU High Court) and the European Court of Human Rights have become very strong and the ICJ's reputation has grown. These courts usually enforce treaty obligations and related interstate agreements.
The European Court of Justice may be found to have created various new individual rights for EU citizens and often replaces national law (for example, the right to gender equality). In fact, the European Court of Justice has declared that EU law is superior to domestic law, thereby successfully undermining the long-established principles of parliamentary sovereignty (as in the United Kingdom). Many observers believe that no agency has helped create a more unified Europe than the European Court of Justice.
The International Criminal Court (ICC), indicted in 2002, represents a special type of multinational court dedicated to prosecuting criminal activity. Created in response to some of the war crimes committed in the former Yugoslavia and Rwanda in the 1990s (a separate international court was set up to prosecute war crimes allegations in each dispute), the ICC was a war crime, slaughter. , And a crime against humanity. However, due to the lack of participation of some major countries (China, Russia, the United States, etc.), many observers questioned whether the ICC could effectively prosecute and deter such crimes.
Common Law
Meaning of common law
Common law is a term used to refer to laws created through court decisions, rather than relying solely on laws and regulations. Common law, also known as "case law" or "case law," provides the background for many legal concepts. Common law varies by jurisdiction, but in general, judges' decisions are often used as the basis for deciding similar cases in the future. To explore this concept, consider the following common law definitions.
What is common law?
Common law often refers to law that is based on social customs and principles and is used in litigation decisions in situations not covered by civil law. These decisions set a precedent that must be applied to future cases on the same subject.
The term common law is used to refer to principles that apply to court decisions, but the common law system refers to a legal system that places a great deal of emphasis on judicial decisions made in similar previous cases. In the United States, common law or case law is used to guarantee similar results in similar cases. The courts are bound by the principles of "case law" in the High Court's decisions on similar issues. If a court decides on a case that is fundamentally different from the previous case heard by another court, that decision may set a precedent for future cases on that subject.
Common law history
Common law is a term originally used during the reign of Henry II of England in the 12th century. The ruler established a secular referee with the aim of establishing a unified system for determining legal issues. The judges of the King of these referees respected each other's decisions, and such decisions created a unified "common law" throughout England. Cases set by courts in the 12th and 13th centuries were often based on traditions and customs and became known as the "common law" system.
The common law in the United States dates back to the arrival of settlers who brought them the legal system they are most familiar with. After the American Revolutionary War, the newly formed states adopted their own customary law, separate from federal law.
Common law and civil law system
Common law and statutory systems differ in many ways. Common law decisions rely heavily on prior decisions made in similar cases. Statutory law decisions are primarily based on statutory law. This creates a way for the law to be developed and enacted. Common law evolves over time as judicial decisions are made and used in future decisions, but it is usually not a statutory law enforceable by law enforcement or enforcement agencies. It will take some time for the influence of common law to spread and become common sense.
Statutory law, on the other hand, relies on the legislative process, where laws and ordinances are created and voted on by national representatives. When these new laws come into force, they will be enforceable by law enforcement or government agencies, and the wording of the law will usually apply in court. Because common law is based on judicial opinion, the parties to a civil case can compare cases with case law. Comparison is not allowed in statutory law. For example, civil law provides for deadlines, statutes of limitations, permitted monetary damages, and judgments.
Many countries rely on either the common law system or the civil law system. In the United States, the judicial system is a combination of the two, with statutory law applied as needed, but courts must comply with case law when deciding cases that do not comply with the law.
Federal common law
The use of common law by federal courts is limited to federal case decisions. In certain circumstances, federal courts may have jurisdiction to hear proceedings under state law (known as "diversity jurisdiction"), but cannot create or apply federal common law or state law proceedings. .. Rather, federal judges hearing such cases must look to state law case law.
Common law example
On July 27, 1934, Harry Tompkins was walking on a narrow sidewalk near the Erie Railroad track in Hughes town, Pennsylvania. As the train approached, something protruding from one of the railcars struck and knocked down Tompkins, crushing his arm under the train's wheels. The train was operated by a registered company in New York, so Tompkins filed a civil suit in the federal district court.
The district court judge who heard the case followed current federal law at the time when applying the federal common law to the case, rather than the common law in Pennsylvania or New York. The federal common law has applied the criteria of "normal negligence" in deciding how much attention the railroad should pay to individuals who are not employed by the railroad. The common law in Pennsylvania, where the accident occurred, stipulates that railroads are obliged to warn intruders of "wonton negligence," which requires a higher level of evidence of negligence. The court ruled in favor of Tompkins and inflicted damages on him.
Tompkinsv. If the proceedings were variously heard in federal court prior to Erie Railroad's proceedings, that is, if the proceedings were filed in federal court because they were beyond the jurisdiction of the state, the state statutory law should be: It had already been decided that it had to be done. Applies. However, federal courts hearing diverse cases have also ruled that state common law or case law does not need to be applied to the case.
Railroad appealed the matter to the Court of Appeals and then to the US Supreme Court. After reviewing the case, the Supreme Court ruled that the federal district court was not authorized to create federal common law when considering state law claims in diversity, but must apply state common law. ..
This topic was very important. It was the Supreme Court's effort to address the issue of "forum shopping." In this matter, the plaintiff, in case of crossing jurisdiction, will file a proceeding in the state or jurisdiction where the law offers the greatest advantage. With this decision, the court overturned federal civil proceedings and created an order that federal common law should apply strictly only in federal cases, not in diversity cases.
The Court system in India and foreign courtiers
This article describes the hierarchy of courts in India and the types of courts commonly found in the judicial system of our country. India's judicial system is common law, and customs, case law, and law are all legitimate in court. In fact, this type of system has been a legacy of the British legal system, composed of colonial powers and the princely state of the time since the mid-19th century, and partially retains the characteristics of ancient and medieval customs.
India is one of the most populous (second most populous) countries in the world, with a very strong legal system rooted in various court structures, and the entire judicial system arranged hierarchically.
There are four types of courts in India: the Supreme Court, the High Court, the District Court, and the Subordinate Courts. The seats of the Supreme Court are in New Delhi. Currently, there are 25 High Courts in India, the latest being the Andhra Pradesh High Court. There are district courts in each district of India.
Indian court hierarchy
A major feature of India's judicial system is the hierarchical structure of the courts. This type of system is powerful enough to limit the court with its jurisdiction and authority in exercising it. The Supreme Court of India, also considered the Supreme Court of the State, is located at the top of the hierarchy, followed by 25 regional-level high courts and micro-level subordinate courts (district courts or session courts). Distributing and using or exercising power for the well-being of the Indian people.
The Supreme Court of India is the Supreme Court or the Supreme Court. It is also the supreme Constitutional Court with judicial review authority and is considered the last and last Court of Appeals under the Constitution of India (held to lower courts such as the High Court and Courts). It basically consists of all kinds of jurisdiction, such as original, appeal and advisory. The court consists of 30 judges and the Chief Justice of India, so up to 31 judges can be appointed to the court at one time.
The actual duty of Indian courts is to protect Part III of the Indian Constitution. In short, citizens' fundamental rights are also to resolve disputes between various governmental authorities, along with central vs. state or other states vs. states. As part of the Advisory Court, this court also hears issues sometimes mentioned by the President of India. As the Supreme Court of the State, the law declared by the Supreme Court is binding nationwide (authority is given under Article 142) and it is the President's duty to enforce the judgments of this court.
2. High Court-
The High Court is the Supreme Court of the State, and according to Article 214 of the Constitution of India, each state of India requires a High Court and is considered the final interpreter of the Constitution after the Supreme Court. .. The High Court has original civil and criminal jurisdiction only if the lower court is not legally permitted to attempt such types of issues due to lack of financial (financial) or territorial jurisdiction. Finally, this court may also have the original jurisdiction.
3. District Court –
All districts consist of district courts under the direct control of the state or federal territory. The basis of the actual composition of the Indian District Court is largely at the discretion of the state or union territory. The composition is based on factors such as the number of registered cases, the total population, and the actual scenario of the district. Depending on these factors involved, the state government may determine the number of single district courts. The district, or two districts, may be a single district court.
4. Subordinate Court-
Finally, although each court is someone's subordinate court except the Supreme Court. Since the High Court is a subordinate court of the Supreme Court, the district court and the session court are subordinate courts of the High Court, but conceptually, the subordinate court basically means the court of the village known as Lok Adalat or Nyay Adalat. I will. The scope of justice now extends to Indian villagers. Villagers do not all move away from the village to nearby local cities. This system will be part of the judicial system initiated by Madras Village Court Act 1888 to resolve disputes at the micro level.
Foreign court
Introduction
In the age of globalization, India is becoming one of the countries to watch in the market, making it the most important and worthy country to evaluate the laws related to foreign judgments in India. India often relies on foreign judgment to interpret the law. The laws relating to foreign judgments in India are clear and provide simple procedures for enforcing them. It is not unclear that Indian courts will investigate sources of international and comparative law as they determine creative strategies for developing norms and providing justice to each individual.
What are foreign courts and foreign decisions?
Foreign courts are defined under Article 2 (5) of the Code of Civil Procedure, 1908. Simply put, it means that a court that is not located in India and has not been established or continued by the Central Government of India is a foreign court.
Foreign judgments are defined under Section 2 (6) of the Code of Civil Procedure of 1908.
In layman's terms, all judgments given or sentenced by foreign courts can be said to be known as foreign judgments.
Enforcement of foreign judgments in India
Enforcement of foreign judgments in India is clarified by the provisions of Sections 13, 14 and 44A of the Code of Civil Procedure of 1908, which provides an efficient mechanism for enforcing these judgments.
These judgments or statutes are enforced in India as if only the Indian district passed.
Under Section 44A of the Code of Civil Procedure (CPC) of 1908, foreign decisions are classified into two categories by the Indian legal system.
a) Foreign judgment from a round-trip territory
Round-Trip Territories-These territories for the purposes of this section are territories or countries other than India that can be declared as round-trip territories by the central government, as notified in the official bulletin. Accordingly, it is an agreement between another country and India that a decision or decree of a higher court located on a round-trip territory can be implemented in another country by submitting a copy of such decree. ..
Superior Courts-The courts in the round-trip area that can make decisions in India are called Superior Courts.
The following are countries considered round-trip territories in India-:
1. United Kingdom
2. Aden
3. Fiji
4. Republic of Singapore
5. Federation of Malaya
6. Trinidad and Tobago
7. Trust Territory of New Zealand, Cook Islands (including Nieu), and West Samoa
8. Hong Kong
9. Papua New Guinea
10. Bangladesh
11. United Arab Emirates
In the case of all these mentioned round-trip areas, the foreign judgment or statute has not been declared inconclusive under Section 44-A of the 1908 CPC, or the Code of Civil Procedure, 1908.
b) Foreign judgment from non-round trip area
Non-round trip territories-These are territories that India has not agreed on.
Procedure of such execution
Foreign judgments or decree declared to be inherently decisive in accordance with Section 13 of CPC, 190, such judgments or decree can be enforced in two ways.
1. By filing a petition for enforcement under Section 44-A of the CPC
This basically means that a judgment or judgment from a court of reciprocating territory can be enforced directly by submitting a petition for execution to an Indian court.
2. By filing a proceeding based on a foreign judgment or law
This is simply if you want to enforce a judgment or judgment from a foreign court that is a non-reciprocal authority in India, such a judgment / judgment can only be made by filing a judgment or a proceeding based on the judgment in an Indian court. It means that it can be enforced. About foreign judgments / laws.
In such cases, the foreign judgment or decree is only considered evidence.
There is also a deadline for proceeding in such proceedings in India within three years of the passage of such a foreign judgment or decree.
Basic requirements for enforcing such judgments
According to Section 44-A of the 1908 CPC, the mandatory requirements for enforcing foreign judgments or round-trip territorial legislation in India are:
a. The judgments or statutes provided must belong to the higher courts of the round-trip territory.
b. A certified copy of such statute or jurisdiction submitted to the Indian District Court exercising the original civil jurisdiction.
c. The provisions given under Section 47 of the CPC shall apply subject to the exceptions given under Section 13 of the 1908 CPC.
d. Decree here means the decree on which the amount is paid (as provided in the Code of Civil Procedure, Section 44-A Description of 1908-II).
e. A certificate stating the extent to which the law is already met (if any) must be provided by a foreign court.
In the case of non-round-trip territory, a civil action relating to a foreign law or judgment must be filed by the judgment holder with a certified copy of such foreign law or judgment.
When will these foreign judgments or statutes be enforced in India?
Such foreign judgments or decree are declared definitive under Section 13 of the Code of Civil Procedure and can only be enforced in India if they do not meet the conditions set forth in the same section.
Article 13 states that "foreign judgments shall be conclusive with respect to matters directly decided between the same parties alleging that they or either of them file a proceeding under the same title, except for the following:" I have.
This basically means that a foreign judgment will only be considered definitive in an Indian court if it does not meet the exceptions given in the same section.
The exceptions specified in Section 13 of the 1908 CPC are:
I. If not declared by the court of competent jurisdiction (13 (a))
Foreign judgments are considered definitive only if they are sentenced by a court having jurisdiction to pass such judgments. If it is passed by an incompetent court or a court that does not have the necessary jurisdiction over the matter, such a judgment will not be considered conclusive in an Indian court.
Under Article 14 of the Code of Civil Procedure of 1908, Indian courts claim that the foreign judgments provided are a proven copy of such judgments, and such judgments have jurisdiction to pass such judgments. It is presumed that it was sentenced by a court of authority. Judgments, such presumptions are not absolute in nature and can be challenged by proving that the court did not have jurisdiction to pass such judgments.
The famous case of Ramana San Chetia and another V. Karimatu Pirei and another Madras High Court provided the following situations in which a foreign court is said to have jurisdiction.
a. Defendants are the subject of the country in which the judgment was passed.
b. The defendant is a resident of the country in which the proceedings were initiated.
c. The defendant filed a proceeding in the same forum in a previous proceeding.
d. The place where the defendant appeared voluntarily.
e. If the defendant contracts to be subject to court jurisdiction.
ii. If the judgment is not based on the substance of the case (13 (b))
If the foreign judgment made in front of the court is not decided on the substance, such a judgment is self-determined in the judgment provided. Plea was denied by the court for technical reasons because it did not provide a fair, equal, rational opportunity to represent the case, or because such a ruling was not inherently definitive.
iii. Where it appears on the face of the proceedings to be founded on an incorrect view of International law or a refusal to recognize the law of [India] in cases in which such law is applicable (13(c)) If there is an incorrect view present in such foreign judgment and the Indian laws are not recognized if they are applicable then such judgment is not considered conclusive.
iv. When the procedure for which the judgment was obtained opposes natural justice (13 (d))
If the procedure of the foreign judgment provided is contrary to natural justice, such judgment is not considered to be definitive in nature and will not be approved by an Indian court.
v. When acquired by fraud (13 (e))
If the foreign judgment presented is obtained by fraud by the parties in that case, such judgment is not considered conclusive in Indian courts.
In the case of Satya V. Teja Singh AIR 1975 SC105 at pg.117 para.50, the prestigious Supreme Court misunderstood the foreign court that the plaintiff had jurisdiction over this matter, so the jurisdiction, judgment and judgment were fraudulent. It was obtained and therefore not definitive.
vi. Supporting claims based on violations of the law in force in [India] (13 (f))
If the claim made in such a foreign judgment violates any of the laws in force in India, such judgment is not considered definitive her.
Key takeaways:
Arbitration
Arbitration is a private litigation process that adheres to specific rules agreed between the parties. There are many institutions that provide rules for managing arbitration, such as UNCITRAL, LCIA, and ICC. However, the parties may decide on ad hoc rules instead. The main advantage of using arbitration is the confidentiality aspect of the procedure. There seems to be little cost-benefit compared to court proceedings, which is intended to be a faster process, but inevitably, like all disputes, one is faster than the other. I will. As a rule of thumb, disputes involving contracts of a delicate nature are best dealt with by arbitration. From experience, arbitration proceedings, arbitration law, and commercial courts tend to make the procedure more unstable than normal court proceedings, so matters involving some personal disputes are not suitable for arbitration.
What is the Arbitration Law?
Arbitration is a dispute resolution process between two agreed parties that appoints an arbitrator to provide a binding solution to a dispute. This is an out-of-court way of resolving disputes, thereby saving time and resources at the same time.
Arbitration is a legal mechanism that mutually facilitates the resolution of a dispute between two or more parties by appointing a third party to make a decision binding the party referencing the dispute.
What is a contract?
Contracts are a familiar concept for all of us. Simply put, it refers to an agreement between two or more parties that is enforceable by law. However, it is formally defined as an agreement between two or more parties that intend to create a legal obligation to perform any work or service. Contracts can be made orally or in writing, but today most are made in writing. A distinct feature of a contract is that performing any work or service is not just an agreement, but that work or service is usually performed in return for valuable consideration. Therefore, consideration is an important element of the contract. The consideration is usually in the form of payment. In addition to the consideration, the contract is usually valid and must include some other elements in order to be recognized as a legal contract. Therefore, there must be an offer and acceptance of that offer, the parties must have the ability to contract, and the subject matter of the contract must be legal. Contracts can take many forms, such as bilateral contracts and bilateral contracts. As in the case of tort, breach of one or more terms of the contract or the entire contract can lead to remedies for damages.
Contract law is a legal agreement that clarifies all necessary actions, such as individual rights and individual obligations. This law protects the parties from violating legal rules.
In general, the law falls into three categories.
1. Offer,
2. Accept
3. Items to consider.
1. Offer
One party must make a proposal, state the necessary conditions, and the other party must comply.
2. Receiving
The contract is completed when the other party's offer is accepted
3. Consideration
A valid contract requires each party to provide something. This is known as compensation.
What is tort?
The concept of tort is an important subject of civil law. Indeed, civil courts hear and decide on many cases, including torts. The term tort comes from the Latin word "tort." This has been translated to mean "wrong" or "wrong citizen". It is similar to the concept of crime in that it involves some form of cheating given to others. However, unlike crime, tort is more personal. In this way, crime constitutes torts that are caused not only by humans but by society as a whole, while torts constitute torts that are caused only by humans. Therefore, it is a private mistake. Tort usually involves tort in the form of harm or injury caused to a person or her property. The injured or injured party will file a civil suit in court against the injured person. If the court determines that the tort has been committed, the court usually orders the defendant to pay compensation or provide other remedies to the injured party. This compensation is commonly known as damages.
Examples of tort include occupant liability, sabotage, financial tort, negligence, defamation, or product liability. Negligent tort revolves around the concept of duty of care that one person owes to another. Failure to exercise this duty of care to others in certain circumstances is a negligent tort. Such an example is when a person drives recklessly and harms pedestrians. Tort is intentional tort (well aware that your actions can do harm), strict liability tort (tort focusing only on the physical aspects of tort), and negligent tort. It is classified as an act. When a person commits a tort, the court does not look at the tort, but looks at the harm or injury suffered by the victim as a result of the tort. Please note that contract breach is not included in the definition of tort. What is the difference between tort and contract?
Therefore, the difference between tort and contract is simple. Tort constitutes a civil error, but a contract refers to an agreement between two or more parties.
Definition of tort and contract:
Tort is a civil error. It is a private mistake in that it constitutes a tort in the form of harm or injury caused to a person or her property. Tort is classified into intentional tort, strict liability tort, and negligent tort.
A contract is an oral or written agreement between two or more parties intended to have legal obligations, usually in the form of payment, for some work or service in exchange for valuable consideration. I will do it.
Tort and contract concepts:
When a person commits a tort, the court does not look at the tort, but looks at the harm or injury suffered by the victim as a result of the tort. Courts usually order defendants to pay compensation or provide other remedies to the injured party.
The contract includes an offer and acceptance of the offer, and the parties must have the ability to contract. A breach of contract by either party may result in damages remedies.
Examples of torts and contracts:
Examples of tort include occupant liability, obstruction, financial tort, negligence, defamation, or product liability.
An example contract is an agreement between Company A to provide security services to Company B in exchange for the valuable consideration paid by Company B to Company A.
Law at workplace
Everyone has the right to work in a safe and protected environment. As an employer, it is your duty and moral responsibility to ensure that workplace health and safety meet legal requirements. You may need to use the services of a workplace safety attorney to ensure that your business complies with the law.
Vikramsinh Parmar, founder of Law Tally, explains that your lawyer must guide you through updates added to legality and inform you about your rights and responsibilities. Lawyers also foresee potential problems and prepare them in advance.
Workplace safety laws are defined
Workplace safety legislation consists of many state and federal regulations. These are implemented by companies to ensure the health and safety of their employees. Various standards are also set to reduce the risk of work-related illnesses and accidents.
The Occupational Safety and Health Administration (OSHA) is the government agency responsible for managing the major laws governing workplace safety. They have the authority to investigate the breach and issue a citation about the breach. Failure to comply with this law will result in fines and, in the worst case, imprisonment or other criminal penalties.
"Whistleblowers" are encouraged, but workers who do so often require legal assistance in reporting violations. However, workplace safety lawyers primarily represent companies. These lawyers focus on helping employers develop policies to ensure legal compliance. They also defend them in administrative proceedings as needed.
The new law must be sensitive to the needs and reality of the industry to which it applies. To ensure that this is the case, business clients also use the services of these lawyers to help lawmakers draft regulations.
What is workplace safety?
The term "workplace safety" refers to the working environment of a corporation. It covers all individual factors that can affect employee health, well-being, and safety. This includes:
Unsafe work process or condition
Environmental hazard
Violence in the field
Substance and alcohol abuse
Proper use of tools
Easy access to crisis exits
Use of mechanical assistance
Reduce work-related stress
OSHA monitors workplace safety at the national level. The administration has three goals that underlie its regulation and policy.
Improving the health and safety of all workers by reducing exposure, danger, illness, injury and death.
Changing workplace culture by increasing awareness, awareness and involvement in the health and safety of both workers and employers.
Ensuring public trust through excellence in the provision and development of OSHA services and programs.
OSHA's enforced federal guidelines are complemented by state regulations.
What health and safety regulations do employers need?
The Industrial Safety and Health Act (OSH Act) was passed in 1970. The law not only gives workers specific rights, but also imposes specific obligations on employers.
The OSH Act requires employees to:
The employer's responsibilities are as follows:
Benefits of improving the safety of your company's workplace
While ensuring that your company's workplace is safe is correct, there are also many benefits associated with this. Not only does it help you avoid legal issues, it also improves employee productivity, morale, and retention. It also often has a significant positive impact on the financial performance of the business.
Ventures with robust workplace safety procedures and related records often benefit greatly from insurance. Workers' accident compensation insurance premiums for all companies are typically based on:
A mod represents a way to compare the accident rate of an individual company with other ventures in the same industry. If your business has a higher than average worker's accident compensation claim rate in three years, you will pay a higher premium. On the other hand, if your billing rate is low, you can benefit from paying a discounted rate.
Various safety programs cover a wide range of potential hazards and concerns. Many risks are associated with a particular industry. However, in general, you can take the following steps to improve the safety of your work environment:
Workplace Safety Claims: Avoidance, Investigation, Defence
Avoiding safety claims
Safety claims can cause serious legal problems for the company. Therefore, it is best to avoid these claims. The most important benefit of working with a workplace safety lawyer is to help create a work environment where employees can perform their duties without the risk of physical injury.
Performing regular compliance audits in collaboration with lawyers can help you avoid legal issues before they occur. The process looks like this:
It reveals the need for additional safety devices (ie, respiratory, safety guards, etc.).
Identify potential problem areas where new practices need to be used to minimize the risk of exposure (that is, store dangerous goods offsite).
Shows the need for advanced training programs, taking into account the language and learning abilities of employees.
Includes reviews and updates of records management procedures.
Pick up and fix various minor issues (that is, replace the missing OSHA poster) before getting the attention of government officials.
Safety claim investigation
The need for legal assistance becomes an urgent issue when a safety claim is submitted. The company and its lawyers must conduct an internal investigation to validate the employee's claims. If the petition is valid, your lawyer will discuss with you the steps required to address the issue.
Safety claim defense
The situation in which OSHA issues citations can often be resolved through an informal process with government agencies. Still, if this is not possible, the benefits of having a strong defense team can minimize sanctions, fines, and publicity.
Workplace safety is a serious concern
It is your responsibility as an employer to ensure that your workers are free to operate in an environment that does not endanger their well-being. It is important to understand workplace safety laws and work with lawyers who specialize in this area. This allows the company to comply with the law and avoid problems.
There are many benefits to keeping a venture's work environment safe, including financial benefits. If your company seems to be out of compliance, now is the time to take action.
Key takeaways:
References:
