INDIAN JUDICIAL

SYSTEM
Rule of Law
• The Constitution is the supreme law of the land, and all laws and actions of the
government must conform to it. This is enshrined in Article 13, which invalidates
any law inconsistent with the Constitution.
• Article 14 guarantees that all individuals are equal before the law and have the
right to equal protection of the laws
• The Constitution establishes a clear separation of powers among the legislative,
executive, and judicial branches of government. Articles 124 to 147 deal with
the judiciary, establishing an independent judiciary that can review the actions
of the legislature and executive. Judicial review empowers the courts to
invalidate laws and actions that violate the Constitution.
• The Indian judicial system interprets laws and is the custodian of the
constitution
 Sources of law
• India's Constitution is the source of law and gives Parliament and State and Union
Territory Legislatures the ability to pass laws.
• Additionally, a body of laws known as subordinate legislation is composed of rules,
regulations, and bylaws that are established by local authorities such as Grama
Panchayats, Municipal Corporations, and Municipalities, as well as the federal and
state governments.
• Statutes or Legislations: Legislation refers to the laws enacted by a country’s
legislature or Parliament. These take the form of statutes, acts, codes, and
ordinances. It covers various subjects, from crime to education to healthcare. The
legislature has the power to make new laws, amend existing laws, and repeal
obsolete laws through the lawmaking process. Statutes and acts passed by the
legislature represent the majority of the laws that govern a society.
 Sources of law
• Customary Law: Customs and traditions that have been followed by communities
for a long time can be recognized as law, provided they are not contrary to
statutory law or public policy. Customary law is particularly significant in areas like
personal law.
• Personal Law: These laws govern individuals based on their religion or community.
For example, Hindu law, Muslim law, Christian law, and Parsi law regulate matters
like marriage, divorce, inheritance, and adoption among their respective
communities.
• Judicial precedents: Judicial decisions, particularly those of the Supreme Court and
High Courts, serve as important sources of law. The principle of stare decisis
(precedent) means that lower courts are bound by the decisions of higher courts.
 Hierarchy of Courts
• 1. Supreme Court: It is the Apex court of the country and was constituted on 28th January 1950. It is the
highest court of appeal and enjoys both original suits and appeals of High Court judgments. The Supreme
Court is comprised of the Chief Justice of India and 25 other judges. Articles 124-147 of the Constitution
of India lay down the authority of the Supreme Court.
• 2. High Courts: High Courts are the highest judicial body at the State level. Article 214 lays down the
authority of High Courts. There are 25 High Courts in India. High Courts exercise civil or criminal
jurisdiction only if the subordinate courts in the State are not competent to try the matters. High Courts
may even take appeals from lower courts. High Court judges are appointed by the President of India upon
consultation with the Chief Justice of India, the Chief Justice of the High Court and the Governor of the
State.
• 3. District Courts: District Courts are established by the State Governments of India for every district or
group of districts based on the caseload and population density. District Courts are under the direct
administration of High Courts and are bound by High Court judgments. Every district generally has two
kinds of courts:
• a. Civil Courts b. Criminal Courts
• District Courts are presided over by District Judges. Additional District Judges and Assistant District Judges
may be appointed based on the caseload. Appeals against District Court judgments lie in the High Court.
• 4. Lok Adalats/Village Courts: these are subordinate courts at the village level
which provide a system for alternate dispute resolution in villages.
• 5. Tribunals: the Constitution provides the government with the power to set up
special Tribunals for the administration of specific matters such as tax cases, land
cases, consumer cases etc.
• Appellate jurisdiction refers to the authority of a court to rehear/review a case
decided by a lower court. In India, appellate jurisdiction is vested in both the
Supreme Court and High Courts. They may either overrule or uphold the
judgments of lower courts.
Legal Codes
• With effect from July 1, 2024, new codes have replaced the decades-old Indian Penal
Code, Indian Evidence Act and the Code of Criminal Procedure.
• Indian Penal Code (IPC) 1860- Bharatiya Nyaya Sanhita (BNS)
• Code of Criminal Procedure (CrPC) 1973- Bharatiya Nagarik Suraksha Sanhita (BNSS)
• Indian Evidence Act 1872- Bharatiya Sakshya Adhiniyam (BSA)
• The Indian Constitution, along with BNS, BNSS, and BSA form the four pillars of the Indian
judicial system. The Constitution guarantees fundamental rights, the process for resolving
civil disputes is laid out in the BNS and the resolution of criminal disputes is governed by
BNSS. The law that applies to all disputes that require production of any form of evidence
(documents, statements of an individual etc.) is enshrined in the BSA.
IPC
• Enacted in 1860, came into force in 1862
• Comprehensive criminal code for India
• Drafted by the First Law Commission chaired by Lord Macaulay
• Divided into 23 chapters, contains 511 sections
Bharatiya Nyaya Sanhita
• The Bharatiya Nyaya Sanhita (BNS) replaces the IPC. It largely retains
the provisions of the IPC, adds some new offences, removes offences
that have been struck down by courts, and increases penalties for
several offences.
• Number of sections reduced from 511 to 358
• 21 new offences added, including hate crimes and mob lynching.
• It also introduces offences like terrorism, organized crime, and hate
speech and redefines sedition. Further, it expands scope of theft to
include data and intangible items.
Summary
• Preliminary (Title, application, definitions, explanations)(1-3)
• Punishments (4-13)
• General Exceptions (14-44)
• Abetment, Criminal Conspiracy and Attempt (45-62)
• Offences against Woman and Child (Sexual offences, offences against marriage,
causing miscarriage etc) (63-99)
• Offences affecting the Human Body (affecting life, hurt, criminal force and assault,
kidnapping, abduction, slavery and forced labour) (100-146)
• Offences against the State (147-158)
• Offences relating to Army, Navy and Air Force (159-168)
• Offences relating to elections (169-177)
• Offences relating to coin, currency- notes, bank notes and Government Stamps
(178-188)
Summary (contd.)
• Offences against Public Tranquility (189-197)
• Offences by or relating to Public Servants (198-205)
• Contempt of Lawful authority of Public Servants (206-226)
• False evidence and offences against Public Justice (227-269)
• Offences affecting Public health, Safety, Convenience, Decency and Morals (270-297)
• Offences relating to Religion (298-302)
• Offences against Property (303-334)
• Offences relating to Documents and Property Marks (335-350)
• Criminal Intimidation, Insult, Annoyance, Defamation etc. (351-357)
• Repeal and Savings (358)
• The IPC criminalises acts such as murder, abetment of suicide, assault and causing
grievous hurt. The BNS retains these provisions. It adds new offences such as
organised crime, terrorism, and murder or grievous hurt by a group on certain
grounds.
• The IPC criminalises acts such as rape, voyeurism, stalking and insulting the modesty
of a woman. The BNS retains these provisions. It increases the threshold for the
victim to be classified as a major, in the case of gangrape, from 16 to 18 years of age.
It also criminalises sexual intercourse with a woman by deceitful means or making
false promises (Clause 69).
• Acts of terrorism are now explicitly included as offences.New provisions cover being
part of a terrorist organization, harboring terrorists, training for terrorism, and
handling money from terrorist acts.
• For minor offences like petty theft, community service is now a punishment instead
of jail time
• Specific provisions have been added to address medical negligence.
ICPC or CrPC (Indian Criminal
Procedure Code)
• Enacted in 1973, came into force in 1974
• Governs the procedural aspects of criminal law in India
• Ensures fair trial and justice
• Divided into 37 chapters, contains 484 sections and two schedules
Bharatiya Nagarik Suraksha Sanhita
• Bharatiya Nagarik Suraksha Sanhita (BNSS) replaces the Criminal
Procedure Code (CrPC),
• It focuses on a victim-centric approach.
• It extends police custody from 15 to 90 days, allows trials in absentia,
introduces Zero FIR (allowing FIRs at any police station), and includes
electronic summons and a Witness Protection Scheme.
• It also mandates forensic investigations for serious offences and
facilitates electronic trials, a significant shift from traditional
courtroom procedures.
Major focus of BNSS
• Scientific: use of technology and forensic sciences in the investigation,
summons, information
• Time bound: investigation, trial and judgments
• Citizen centric: supply of FIR copy and progress of investigation
• Trial: summary trial mandatory for petty offences, accused
examination through VC, magisterial system
• BNSS retains most of the provisions of the CrPC.
Major changes:
• Detention of undertrials: As per the CrPC, if an accused has spent half of the maximum period of
imprisonment in detention, he must be released on personal bond. This does not apply to
offences punishable by death. The BNSS Bill adds that this provision will also not apply to: (i)
offences punishable by life imprisonment, and (ii) persons against whom proceedings are pending
in more than one offence.
• Medical examination: The CrPC allows medical examination of the accused in certain cases,
including rape cases. Such examination is done by a registered medical practitioner on the
request of at least a sub-inspector level police officer. BNSS provides that any police officer can
request such an examination.
• Forensic investigation: The Bill mandates forensic investigation for offences punishable with at
least seven years of imprisonment. In such cases, forensic experts will visit crime scenes to collect
forensic evidence and record the process on mobile phone or any other electronic device. If a
state does not have forensics facility, it shall utilise such facility in another state.
• Signatures and finger impressions: The CrPC empowers a Magistrate to order any person to
provide specimen signatures or handwriting. The Bill expands this to include finger impressions
and voice samples. It allows these samples to be collected from a person who has not been
arrested.
• Timelines for procedures: The Bill prescribes timelines for various procedures. For
instance, it requires medical practitioners who examine rape victims to submit their
reports to the investigating officer within seven days. Other specified timelines
include: (i) giving judgement within 30 days of completion of arguments (extendable
up to 60 days), (ii) informing the victim of progress of investigation within 90 days, and
(iii) framing of charges by a sessions court within 60 days from the first hearing on
such charges.

• Hierarchy of Courts: The CrPC establishes a hierarchy of courts for the adjudication of
criminal matters in India. These courts include: (i) Magistrate’s Courts: subordinate
courts responsible for the trial of most criminal cases, (ii) Sessions Courts: presided
over by a Sessions Judge and hear appeals from Magistrate’s Courts, (iii) High
Courts: have inherent jurisdiction to hear and decide criminal cases and appeals, and
(iv) Supreme Court: hear appeals from High Courts and also exercise its original
jurisdiction in certain matters. The CrPC empowers the state governments to notify
any city or town with a population of more than one million as a metropolitan area.
Such areas have Metropolitan Magistrates. The Bill omits this provision.
 Some topics covered under BNSS
(and CrPC)
• Definitions and types of offenses
• Classification of offenses (cognizable/non-cognizable, bailable/non-bailable)
• Powers of the police and magistrates
• Summons, warrants, and proclamation
• Processes to compel the production of documents and other movable property
• Information to the police and their powers to investigate
• Recording of FIR, investigation procedures, and filing of charge sheets
• Trial Procedures
• Examination of witnesses, recording of evidence, and arguments
• Judgment and Appeals
• Sentencing and Execution
• Provisions for bail and bonds
Indian Evidence Act
• Enacted in 1872, drafted by Sir James Fitzjames Stephen
• Governs the rules of evidence in Indian legal proceedings
• Applies to all judicial proceedings in courts, including civil and criminal
cases
• Divided into 11 chapters with 167 sections
Bharatiya Sakshya Adhiniyam

• Objectives:
• To consolidate and to provide for General Rules and Principles of Evidence
for Fair Trial.
• To repeal and replace the existing Indian Evidence Act, a colonial legislation,
passed in the year 1872.
• The Bharatiya Sakshya Adhiniyam focuses on the procedural aspect of the
Law, governing the rights by which they may been forced before a court of
law.
• To provide the Fundamentals of a fair trial qua the examination of witnesses
through electronics modes including digital evidence i.e. video conferencing
etc. and forms a basic aspect of ensuring every citizen a fair trial/hearing
Bharatiya Sakshya Adhiniyam

• The Indian Evidence Act, 1872 contained 3 Parts and 11 chapters. The Bharatiya Sakshya
Adhiniyam, 2023, contains 4 parts, 12 chapters and a Schedule.
• The Indian Evidence Act had a total of 167 sections, whereas the Bharatiya Sakshya
Adhiniyam, 2023 contains 170 sections.
• The Bharatiya Sakshya Adhiniyam, 2023 now containing four parts:
• Part-I is Preliminary Clauses of the Act which is the Short title of the Act and Definition
clause as Chapter 1. This is the only additional Part in the Act, implying that the remaining
three parts are the same as before except now differently numbered. (Section 1 to 2)
• Part-II is 'Relevancy of Facts - containing Chapter 2. (Section 3 to 50)
• Part III of the Act is 'On Proof’-containing Chapters 3 to 6. (Sections 51 to 103)
• Part IV is “Production and Effect of Evidence” containing Chapters 7 to 12. (Sections 104
to 170)
• BSA expands definition of primary evidence to include
electronic/digital records
• BSA expands secondary evidence to include: (i) oral and written
admissions, and (ii) the testimony of a person who has examined the
document and is skilled in the examination of documents.
Some topics under BSA (and IE Act)
• Definitions and applicability
• Relevancy of facts
• Facts connected with the issue, admissions, confessions
• Statements by persons who cannot be called as witnesses
• Oral and documentary evidence
• Primary and secondary evidence, public documents
• Production and Effect of Evidence
• Examination of witnesses
• Examination-in-chief, cross-examination, re-examination
• Competency and compellability of witnesses
• Improper admission and rejection of evidence
POCSO Act
Protection of Children from Sexual Offences (POCSO) Act, 2012
• Enacted in 2012 to address sexual abuse and exploitation of children
• Comprehensive law to provide protection to children under the age of 18
Objectives
• Safeguard children from offenses of sexual assault, sexual harassment, and
pornography
• Establish special courts for the trial of such offenses
• Provide child-friendly mechanisms for reporting, recording of evidence,
investigation, and speedy trial
Outlines various offenses including: Penetrative Sexual Assault (Sections 3-6),
Aggravated Penetrative Sexual Assault (Sections 5-6), Sexual Assault (Sections 7-
9), Aggravated Sexual Assault (Sections 9-10), and Sexual Harassment (Section
11-12), Use of Child for Pornographic Purposes (Sections 13-15)

Procedure and Child-Friendly Mechanisms

• Mandatory reporting of offenses (Section 19)
• Procedures for recording the statement of the child (Section 24)
• Special provisions for medical examination of the child (Section 27)
• Establishment of Special Courts for speedy trial (Section 28)
• Child-friendly court procedures to ensure the dignity and privacy of the child
(Section 33)
- Punishments and Sentencing
• Strict punishments for various offenses ranging from rigorous imprisonment to fines
• Enhanced punishments for repeat offenders and aggravated circumstances
• Provisions for the safety and protection of the child during the judicial process
- Implementation and Support Mechanisms
- Role of Authorities
• National and State Commissions for Protection of Child Rights play a key role in monitoring the
implementation of the Act
• Special Juvenile Police Units and Child Welfare Committees to support the child and ensure their
well-being
- Rehabilitation and Compensation
• Provisions for interim relief and compensation for the child victim (Section 33(8))
• Measures for the rehabilitation of child victims to ensure their physical and mental well-being