Litigation can be divided generally into two branches that of civil and criminal nature. All litigation of civil nature are governed by the Code of Civil Procedure, 1908 in its procedural aspect and the Code of Criminal Procedure, 1993 governs the procedural aspects of all criminal litigation. These two codes are uniform for the entire India. However, its application differs from State to State, city to city and Court to Court. Apart from this two major Codes, each Court in India has its own rules and regulations and its own peculiar system of working. In Supreme Court and all High Courts the official language of the Court is English though in some High Courts, the proceedings are conducted in the regional language of that particular state. The Judgements in the Supreme Court and the High Courts are delivered in English and are reported in law reports in English. All the statues, central as well as state are framed in English Language. At the lower level in District and other Courts the language of the Court normally is the regional language of the State. However, English is accepted as one of the working languages.
Court Fees
Unlike some of the countries in West, dispensing of justice in India, though an obligation of the State, is not free. Each State in India has its own separate Court Fees Act which inter alia prescribes for the amount payable towards Court Fees on the Institution of a suit and for other related matters concerning a litigation. In Mumbai, the highest Court Fees now payable on a suit is Rs.75,000/-. Women are totally exempted from paying Court Fees.
Foreign Judgements
(a) Where reciprocity exist between India and a Foreign country, judgments of such foreign country may be enforced by proceedings in execution in India or by filing a suit in India upon such Foreign judgment. Foreign judgments are conclusive in Indian Courts regarding any matter directly adjudicated upon between the same parties with the following exceptions:
1. Where Foreign Judgment has not been pronounced by a Court of competent jurisdiction
2. Where Foreign Judgment has not been given on the merit of the case
3. Where it appears on the face of proceedings that the Foreign Judgment has been founded on incorrect view of International Law and refused to recognize the applicable law of India.
4. Where proceedings in the foreign Court on which the Foreign Judgment is based were contrary to natural justice.
5. Where Foreign Judgment was obtained by fraud, and
6. Where the Foreign Judgment sustains claim founded on breach of any law enforced in India.
(b) Limitation period for filing a suit based on a Foreign Judgment is three years from the date of such Foreign Judgement. Any appeal pending in the foreign country will not bar the filing of a suit in India based on such Foreign Judgment.
(c) Foreign Arbitration awards recognized pursuant to convention on recognition and Enforcement of Foreign Awards done at New York, 1958 or Protocol on Arbitration clauses signed at Geneva in 1923 and convention on the Execution of Foreign Arbitral Awards may be enforced by proceeding under Arbitration and Conciliation Act, 1996. The proceedings of enforcing foreign arbitration awards are summary in nature. Foreign Arbitration Awards may also be enforced by instituting action on awards in India. Foreign Awards passed in any of the countries which are signatories to New York Convention of 1961 or Geneva Convention of 1923 and if Central Government of India has notified in the Official Gazette that any of these conventions apply to such countries are recognized and enforcible in India. The proceedings of enforcing such Foreign Awards are summary in nature. Foreign Arbiration Awards if valid are treated on par with a decree passed by an Indian Civil Court and they are enforcible by the Indian Courts having jurisdiction as if decree has been passed by such Courts. Enforcement of Foreign Awards could be rejected on the grounds mentioned in Section 44A of the Code of Civil Procedure 1908 by the appropriate Courts.
Foreign Rulers, Ambassadors & Envoys
A Foreign Ruler can sue in Indian Courts in the name of the State; he cannot however be sued in any Court in India without a written consent of the Government and without complying with the several other conditions. A Foreign Ruler cannot be arrested under the Criminal Procedure Code and/or Civil Procedure Code nor can any decree be executed against his property. These rules also apply to the Ambassadors, Envoys, High Commissioners and Members of Staff and/or retinue of rulers.
Attorneys, Solicitors, Advocates & Pleaders
(a) Till the year 1976 dual system was prevailing in the High Courts at Bombay and Calcutta on its Original Civil Jurisdiction and during that period like in England a litigant could approach the Court and file a suit only through a Solicitor (also commonly referred to as Attorney) and the right of audience to the Courts was granted only to a Barrister or an Advocate duly instructed by that Solicitor. The said system is now abolished and in the whole of India all Lawyers are now designated as Advocates. Many years ago there was a special class of people who were granted the decree of pleaders. They were also entitled to act, appear and plead in Court. The said designation is removed since long.
(b) The Advocates Act XXV of 1961 envisages a single class of practitioners at Bar in all States of India called as Advocates. It also envisages common role of Advocates for whole of India whereby Advocates registered on the role of the Bar Council of their respective States are entitled to practice in all States of India. However, as a general rule an Advocate of a particular state cannot be an Advocate on record for filing suits and other proceedings in another State. He can only appear in the Court of another State if he is instructed by the Advocate registered in that State. All Advocates in India are subject to the rules and regulations framed by the Bar Council of India and the Bar Councils of their respective states and are governed by the Advocates Act, 1961. A disciplinary committee of each State Bar Council keeps vigil on the professional conduct of the Advocates and have powers to suspend or debar any Advocate for professional misconduct.
(c) To be an Advocate on record of Supreme Court at New Delhi an Advocate has to make an application to be enrolled as an Advocate on the record of the Supreme Court Admission thereto is granted as per the rules prescribed by the Supreme Court in that behalf. All Advocates enrolled in any of the Bar Councils of any of the States in India are however entitled to appear and address the Judges in the Supreme Court.
Constitution of India
(a) The Independence Act, 1947 enacted by the British Parliament created two independent Dominions of India and Pakistan and divested His Majesty's Government in the United Kingdom of responsibility for the government of the territories which included British India and made temporary provisions for the government of dominion of India. On August 29, 1947 the Constituent Assembly of India appointed a drafting committee which presented a draft constitution in February 1948 which was adopted on November 26, 1949. Certain Articles of Constitution of India so adopted came into force at once and the remaining Articles and Preamble came into force on January 26, 1950.
(b) The Indian Constitution adopts the British model of an executive responsible to the legislature. The machinery of Government in Indian Constitution is based on the British model and British parliamentary procedure is adopted therein. The civil services in India and appointment of Judges in India are also based on the British model. Articles 32 and 226 of the Indian Constitution also incorporate the high prerogative writs of English Law. It has also adopted the example of American Bill of Rights and incorporated in it fundamental rights. Articles 352 and 353 contain provisions of proclamation of emergency and the effect of such proclamation. The Indian Constitution also contains provisions regarding its own amendments The constitution has both federal and unitary features. It provides of autonomy to the constituent states and division of powers and responsibility between union and the states.
(c) The Constitution of India provides for the following fundamental rights:
1. Right to equality (Articles 14 to 18)
2. Right to freedom (Articles 19 to 22)
3. Right against exploitation (Articles 23 to 24)
4. Right to freedom of religion (Articles 25 to 28)
5. Cultural and Educational rights (Articles 29 to 30)
6. Rights in relation to property (Articles 31 to 31B)
7. Right to constitutional remedy (Articles 32 to 35)
In Article 39 it contains directive principles, few of which are as follows:
1. Adequate means of livelihood of citizens.
2. Control and distribution of material resources of community as best to subserve the common good.
3. That the operation of the economic system does not result in concentration of wealth and means of protection to the common detriment.
4. Equal pay for equal work.
5. Free legal aid (Article 39A)
(d) The Constitution provides for the post of an Attorney General of India to offer legal advice to the Union Government. He is appointed and can be dismissed by the President alone. Likewise provisions are made in the Constitution for the appointment of the Advocate General of a State. He is entitled to attend all legislative sessions and take part in discussions on matters in which expert legal knowledge is required. His duty includes advising Government on legal matters pertaining to his state.
