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    Rule of Law Under Indian Legal System

    Social life requires cooperation and order, and order requires laws. It is possible to have order of some sort, by submitting to the rule of a leader, a dictator who is able to coerce the non-coo...

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    Rule of Law Under Indian Legal System

    By Mohd Aqib Aslam | Views 8538

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    Social life requires cooperation and order, and order requires laws. It is possible to have order of some sort, by submitting to the rule of a leader, a dictator who is able to coerce the non-cooperative into obedience. But such submission to the rule of men could involve loss of freedom and subject the people of whims of men. The ideal solution thus lies in the rule of law, which guarantees both order and freedom.

    Rule of law means that the government in all its actions is bound by rules fixed and announced before hand. It protects the citizen from arbitrary decisions and arbitrary coercion. Justice Coke of England is said to be the originator of this concept. However, concrete shape was given to it by A. v/s Dicey in his book �Law of the Constitution' (1881). He stated his conception of the rule of law in the form of three principles:

    That no man is punishable or can be lawfully made to suffer in bad or good, except for distinct breach of law established in the ordinary legal manner before the ordinary courts of law.

    That no man is above the law, every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

    That the general principles of the Constitution (for example right to personal liberty, right to public meeting etc) are the result of judicial decisions determining the rights of private persons in particular cases brought before the court.

    Dicey's third meaning of the rule of law applies only to the British Constitution, yet his formulation is regarded as a beginning point for discussion on the subject of rule of law. Dicey laid down his principles in the 19th century. In the 20th century the ideas of individual liberty and human rights have gained prominence, and the conception of rule of law has accordingly expanded.

    An international Congress of jurist assembled in New Delhi in 1959 and characterized rule of law in the following words:

    The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions, in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political right but also creation of certain political, social, economic, educational and cultural conditions which are essential to the full development of his personality.

    The Congress emphasized that the rule of law has two aspects:

    Substantive, and Procedural.

    The substantive aspect of the rule of law recognizes certain rights of the individual which he is entitled to enforce against the state. The procedural aspect of the rule of law is concerned with giving practical effect to its substantive aspect.

    While the Congress did not go into the details of the substantive aspect of the rule of law it elaborated the procedural aspect through for committees, whose recommendations may be summarized as below:

    The legislature and the rule of law;

    The legislature should not pass discriminatory laws.

    The legislature should not interfere with the freedom of religion, speech, assembly, or association.

    The legislature should not pass retroactive laws.

    The executive and the rule of law,

    The executive must provide an effective government capable of maintaining law and order.

    The powers conferred on the Executive must be subject to proper safeguards and judicial review.

    The criminal process and the rule of law,

    There must be certainty of the criminal law.

    There must be presumption of innocence of accused.

    There must be a public trial and fair hearing.

    The power of arrest must be strictly regulated by law.

    The accused should have the freedom to have the counsel of his choice.

    The judiciary and the legal profession under the rule of law

    The judiciary must be independent; such independence implies freedom from interference by the executive of legislature in the exercise of judicial function.

    There must be an organized legal profession free to manage its own affairs.

    Legal aid programs must be devised to provide equal access to the law for the rich and poor alike.

    Even though the concept of rule of law has expanded to new areas, the basic value of the rule of law remains the same. It is the fullest possible provision by the community of the conditions that enable the individual to develop into a morally and intellectually responsible person; it is inherent in the concept that it is an ideal state, attained to varying extends by nations of the world. The rule of law has its bearing in India from the very beginning of civilization.

    There are instances in Indian History of kings being punished for the violations of the laws of their own kingdom. But this concept of the rule of law did not resemble the concept as it developed in the west during the 18th and 19th centuries. The biggest factor undermining the existence of rule of law was the existence of institutionalised inequality in the form of the caste system. The Constitution of India came into force on 26th January, 1950. This document abolished the caste system and became the embodiment of rule of law in India.

    स्रोत : www.legalserviceindia.com

    Criminal justice system in India

    This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the criminal justice system and its types. It further talks about reforms made in the Indian criminal justice system. It has been published by Rachit Garg. Table of Contents Introduction Objectives of a criminal justice systemNeed and […]

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    Criminal justice system in India

    By Rachit Garg - August 8, 2022 3675 0 Facebook Twitter Pinterest WhatsApp

    This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the criminal justice system and its types. It further talks about reforms made in the Indian criminal justice system.

    It has been published by Rachit Garg.

    Table of Contents

    Introduction 

    The system that deals with agencies of government that are responsible for enforcing the law in the country, maintaining peace and harmony and treating criminal conduct is known as the criminal justice system. The aim of the criminal justice system is to ensure that every person who suffers an injury or loss at the hand of others is allowed to present his case and seek justice.

    Objectives of a criminal justice system

    The various objectives of the criminal justice system are:

    To punish the wrongdoers.

    Prevent the further occurrence of crime in society.

    Regulate the behaviour and conduct of people, especially criminals.

    Provide relief to the victim.

    Treatment of offenders and their rehabilitation.

    To create deterrence in the minds of people at large not to indulge in any criminal activity.

    Need and evolution of criminal justice systems

    According to Hobbes, man is selfish by nature and can go to any extent for pleasure. As said by Bentham, a person avoids pain and demands to seek pleasure. He is usually moved by his instincts and, in earlier times, there were no regulations and limits to control his conduct. With the increasing population and communities, his interests collided with others’ and led to a situation of conflict. Thus, in order to regulate the conduct of a man, a system was needed that could monitor his actions. The development of the criminal justice system is the same as the development of man.

    The first stage was when there was no control over his actions and he acted as per his needs and demands. If needed, he could hurt anyone and fulfil his wishes. Then came the second stage, where the territory expanded and the concept of ‘state’ emerged. At this stage, a ruler ruled the kingdom and other people acted on his behalf. This stage, however, could not handle the conflict of interests, and so the king gave strict punishments based on the theory of eye for an eye and body for a body. This stage was full of revenge and hatred. When the king still could not regulate the actions of man and there was chaos in society, a need for a proper system was felt. With the advancement of time and development in society, the monarchy was replaced by the aristocracy, which was further replaced by democracy, and the government was thought to have a system to control the rate of crime in each state; hence, the criminal justice system emerged.

    Types of criminal justice systems

    There are two major types of criminal justice systems in the world. These are:

    Adversarial system

    Inquisitorial system

    Adversarial system

    This system is followed in common law countries that were once colonies of a particular country. In this system, there is a prosecution advocate and a defence advocate who argue before the court, and the case is decided on the basis of principles of evidence law and procedural laws. The judge decides the case on the basis of arguments between the two counsels and evidence shown in court. This system presumes the accused to be innocent until proven guilty beyond a reasonable doubt.

    India follows this system because it was once a colony of the British empire and hence called a common law country. The prosecutor represents the state, as it is presumed that a crime has been committed against the state at large, and so, it is the obligation of the state to provide justice. In this system, both parties are given rights to a fair trial and hearing, and so justice is delayed.

    Inquisitorial system

    This system is followed in civil law countries. In this system, the judge can himself investigate the matter and decide the case on the basis of investigation and inquiry. The counsel from each side is present, but unlike in the adversarial system, there is no cross-examination of witnesses. The decision and its accuracy depend on the prudence and skills of the judge.

    This trial procedure is much faster in this system, and it is not costly. It is less formal, and the determination of justice does not depend on the advocate but on the ability of each particular judge.

    Comparisons between the adversarial and inquisitorial system 

    Basis of comparison  Adversarial system  Inquisitorial system Aim  The aim is to extract the truth by way of arguments between the two counsels from each side on the basis of evidence and witnesses.  The aim is to extract the truth by way of investigation and inquiry by the judge.

    स्रोत : blog.ipleaders.in

    Criminal Justice System in India

    Criminal Justice System in India. Download notes PDF for Polity preparation for UPSC 2022. For more, follow BYJU’S.

    IAS PreparationUPSC Preparation StrategyCriminal Justice System In India

    Criminal Justice System in India

    The aim of the Criminal Justice System is to punish the guilty and protect the innocent. Although the broad contours of the Criminal justice system are seldom codified, these can be inferred from different statutes, including the Constitution and judicial pronouncements. In a democratic civilized society, the Criminal Justice System is expected to provide the maximum sense of security to the people at large by dealing with crimes and criminals effectively, quickly and legally.

    More specifically, the aim is to reduce the level of criminality in society by ensuring maximum detection of reported crimes, conviction of the accused persons without delay, awarding appropriate punishments to the convicted to meet the ends of justice and to prevent recidivism.

    In this article, we shall be discussing the history and evolution of the system, the institutions, along with various perspectives of the constitutional aspect of rights of citizens, efforts for reforms, and delivery of justice.

    Further, this article covers other important dimensions, keeping in mind the demands of the preliminary as well as the main examination of the UPSC IAS Exam.

    Find important facts about the IAS Exam, and notes to prepare for it, from the links below:UPSC Exam PatternUPSC Notes PDF UPSC Question PapersIAS Questions & AnswersUPSC Posts

    Why in News

    In the recent past, the supreme court,  taking note of the unprecedented surge in COVID-19 cases, moved to decongest prisons and ordered the immediate release of prisoners who were granted bail or parole in the past year.

    Therefore, the Criminal Justice System of a country does not operate in isolation, rather in close coordination among various institutions, law enforcing agencies, the government following the procedures along the judiciary.

    Indian Criminal Justice System – Constitutional Provision

    Criminal law, including all matters included in the  Indian Penal Code, Criminal procedure, including all matters included in the Code of Criminal Procedure feature under the concurrent list of the 7th Schedule as entries-1, and 2 respectively.

    Certain exceptions are also provided under these two provisions(Entry-1, and 2) of the 7th Schedule.

    For example, offences against laws with respect to the matters specified in List-I or List-II of the 7th Schedule of the constitution, excluding the use of naval, military or air forces or any other armed forces come under this category.

    Evolution of Criminal Justice System of India – From Ancient to Present

    The jurisprudence of Ancient India, which was shaped by the concept of ‘Dharma’, prescribing various rules of right conduct.

    The codes or rules of conduct can be traced to various manuals that explained the  Vedic scriptures, such as ‘Puranas’ and ‘Smritis’

    The King had no independent authority but derived his powers from ‘Dharma’ which he was expected to uphold.

    The distinction between a civil wrong and a criminal offence was clear.

    While civil wrongs related mainly to disputes arising over wealth, the concept of pātaka or sin was the standard against which crime was to be defined.

    The Mauryas had a system of rigorous penal system which prescribed mutilation as well as the death penalty for even trivial offences.

    Dharmasastra of Manu, recognized assault and other bodily injuries and property offences such as theft and robbery.

    During the Gupta’s era, the judiciary consisted of the guild, the folk assembly or the council and the king himself.

    Judicial decisions conformed to legal texts, social usage and the edict of the king, who was prohibited from violating the decisions.

    Indian Criminal Justice During Medieval Times

    India was subjected to a series of invasions,  beginning in the 8th Century A.D. and ending in the 15th century, stabilizing by the time of Mughal Rule.

    Followed a criminal law that classified all offences on the basis of the penalty which each merited, including retaliation (blood for blood), specific penalties for theft and robbery and discretionary penalties.

    Criminal Justice System in its Present Form

    The Criminal Justice System in India follows the legal procedures established by the British during the pre-independence era.

    An Indian Penal Code (IPC) defining crime and prescribing appropriate punishments was adopted in 1860, prepared by the first Law Commission of India.

    It was developed in line with the English criminal law.

    Code of Criminal Procedure was enacted in 1861 and established the rules to be followed in all stages. This was amended in 1973.

    The NN Vohra Committee, set up in 1993, observed increasing criminalization of politics, talked of the unholy nexus.

    It was an effort to push the reforms in the criminal justice system.

    In 2000, the Government of India formed a panel headed by the former Chief Justice of Kerala and Karnataka, Justice V.S. Malimath, to suggest an overhaul of the century-old criminal justice system.

    In 2003, the Justice Malimath Committee submitted a report with 158 recommendations.

    The Committee opined that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”

    स्रोत : byjus.com

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