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1 | .is published by Cyril Amarchand Mangaldas.This guide has been updated till April, 2023.This publication is not intended to be used as the basis for trading in the shares of any company or for undertaking any other complex or significant financial transaction without consulting appropriate professional advisers. No part of this publication may be copied or redistributed in any form without the prior written consent of Cyril Amarchand Mangaldas. © 2023 Cyril Amarchand Mangaldas. All rights reserved.A Thought Leadership PublicationWe now present this guide to enable readers to have an overview of the systems and legal rulesand regulations that are essential for business operations in India..TABLE OF CONTENTSINTRODUCTION065..INTRODUCTION |
2 | .INTRODUCTIONSince the turn of the century, India has continued to witness an upward growth trajectory. With the Indian Government’s promise to improve the ease of doing business and its ‘Make in India’ or ‘AatmaNirbhar Bharat’ (for a self-reliant India) initiative, comes the obligation to ensure that the rule of law is upheld and contracts are eÆciently enforced. The G o v e r n m e n t r e c o g n i z e s t h e correspondent obligation that the Indian legal regime and judiciary must facilitate and support the litigation process. This includes a streamlined process for the enforcement of contracts, as well as domestic and foreign judgments, and arbitral awards in a timely and eÆcient manner. |
3 | .INTRODUCTIONSince the turn of the century, India has continued to witness an upward growth trajectory. With the Indian Government’s promise to improve the ease of doing business and its ‘Make in India’ or ‘AatmaNirbhar Bharat’ (for a self-reliant India) initiative, comes the obligation to ensure that the rule of law is upheld and contracts are eÆciently enforced. The G o v e r n m e n t r e c o g n i z e s t h e correspondent obligation that the Indian legal regime and judiciary must facilitate and support the litigation process. This includes a streamlined process for the enforcement of contracts, as well as domestic and foreign judgments, and arbitral awards in a timely and eÆcient manner.Despite India becoming a heavy contributor to the global economy, it suffers the drawback of an overburdened judiciary, with an ever- increasing caseload. The consequent delay in the judicial process has contributed to the perception that it is di Æcult to successfully prosecute a claim or enforce a judgment or arbitral award in India. Efforts to improve the process in the last few years include major amendments to the Indian arbitration regime, the setting up of commercial courts and divisions to adjudicate ‘Commercial Disputes’ of ‘Specified Value’, and matters connected th e r e w i th , in c lu d in g in c id e n ta l amendments to the Code of Civil Procedure, 1908. |
4 | INTRODUCTIONSince the turn of the century, India has continued to witness an upward growth trajectory. With the Indian Government’s promise to improve the ease of doing business and its ‘Make in India’ or ‘AatmaNirbhar Bharat’ (for a self-reliant India) initiative, comes the obligation to ensure that the rule of law is upheld and contracts are eÆciently enforced. The G o v e r n m e n t r e c o g n i z e s t h e correspondent obligation that the Indian legal regime and judiciary must facilitate and support the litigation process. This includes a streamlined process for the enforcement of contracts, as well as domestic and foreign judgments, and arbitral awards in a timely and eÆcient manner.Despite India becoming a heavy contributor to the global economy, it suffers the drawback of an overburdened judiciary, with an ever- increasing caseload. The consequent delay in the judicial process has contributed to the perception that it is di Æcult to successfully prosecute a claim or enforce a judgment or arbitral award in India. Efforts to improve the process in the last few years include major amendments to the Indian arbitration regime, the setting up of commercial courts and divisions to adjudicate ‘Commercial Disputes’ of ‘Specified Value’, and matters connected th e r e w i th , in c lu d in g in c id e n ta l amendments to the Code of Civil Procedure, 1908.Other notable reforms include the repeal of the Companies Act, 1956 with the introduction of the Companies Act, 2013 (“Companies Act”). This also brought along with it a complete overhaul of the liquidation and bankruptcy process with the Insolvency and Bankruptcy Code, 2016 (the “IBC”), consolidating various legislations which deal with insolvency of individuals, partnerships and limited liability partnerships into one single legislation thereby making the process m o r e str e a m l in e d a n d e Æ c ie n t . Jurisdiction for matters under the IBC has been exclusively conferred on the National Company Law Tribunal (the “NCLT”), thus relieving the burden on High Courts and providing redressal to financial and operational creditors in relation to non-performing assets. |
5 | Since the turn of the century, India has continued to witness an upward growth trajectory. With the Indian Government’s promise to improve the ease of doing business and its ‘Make in India’ or ‘AatmaNirbhar Bharat’ (for a self-reliant India) initiative, comes the obligation to ensure that the rule of law is upheld and contracts are eÆciently enforced. The G o v e r n m e n t r e c o g n i z e s t h e correspondent obligation that the Indian legal regime and judiciary must facilitate and support the litigation process. This includes a streamlined process for the enforcement of contracts, as well as domestic and foreign judgments, and arbitral awards in a timely and eÆcient manner.Despite India becoming a heavy contributor to the global economy, it suffers the drawback of an overburdened judiciary, with an ever- increasing caseload. The consequent delay in the judicial process has contributed to the perception that it is di Æcult to successfully prosecute a claim or enforce a judgment or arbitral award in India. Efforts to improve the process in the last few years include major amendments to the Indian arbitration regime, the setting up of commercial courts and divisions to adjudicate ‘Commercial Disputes’ of ‘Specified Value’, and matters connected th e r e w i th , in c lu d in g in c id e n ta l amendments to the Code of Civil Procedure, 1908.Other notable reforms include the repeal of the Companies Act, 1956 with the introduction of the Companies Act, 2013 (“Companies Act”). This also brought along with it a complete overhaul of the liquidation and bankruptcy process with the Insolvency and Bankruptcy Code, 2016 (the “IBC”), consolidating various legislations which deal with insolvency of individuals, partnerships and limited liability partnerships into one single legislation thereby making the process m o r e str e a m l in e d a n d e Æ c ie n t . Jurisdiction for matters under the IBC has been exclusively conferred on the National Company Law Tribunal (the “NCLT”), thus relieving the burden on High Courts and providing redressal to financial and operational creditors in relation to non-performing assets.Recognising that the Government is the most prolific litigant before Indian courts, in a bid to improve the judicial landscape and make India an attractive investment destination, the Government introduced the Vivad se Vishwas II (Contractual Disputes) scheme for the settlement of disputes involving government entities. It applies to disputes where the claim was raised on or before September 30, 2022 and includes cases at different stages of proceedings, from the time of invocation of an arbitration to pending challenges to arbitral awards. Depending on the stage of the dispute / legal proceeding, a |
6 | Since the turn of the century, India has continued to witness an upward growth trajectory. With the Indian Government’s promise to improve the ease of doing business and its ‘Make in India’ or ‘AatmaNirbhar Bharat’ (for a self-reliant India) initiative, comes the obligation to ensure that the rule of law is upheld and contracts are eÆciently enforced. The G o v e r n m e n t r e c o g n i z e s t h e correspondent obligation that the Indian legal regime and judiciary must facilitate and support the litigation process. This includes a streamlined process for the enforcement of contracts, as well as domestic and foreign judgments, and arbitral awards in a timely and eÆcient manner.Despite India becoming a heavy contributor to the global economy, it suffers the drawback of an overburdened judiciary, with an ever- increasing caseload. The consequent delay in the judicial process has contributed to the perception that it is di Æcult to successfully prosecute a claim or enforce a judgment or arbitral award in India. Efforts to improve the process in the last few years include major amendments to the Indian arbitration regime, the setting up of commercial courts and divisions to adjudicate ‘Commercial Disputes’ of ‘Specified Value’, and matters connected th e r e w i th , in c lu d in g in c id e n ta l amendments to the Code of Civil Procedure, 1908.Other notable reforms include the repeal of the Companies Act, 1956 with the introduction of the Companies Act, 2013 (“Companies Act”). This also brought along with it a complete overhaul of the liquidation and bankruptcy process with the Insolvency and Bankruptcy Code, 2016 (the “IBC”), consolidating various legislations which deal with insolvency of individuals, partnerships and limited liability partnerships into one single legislation thereby making the process m o r e str e a m l in e d a n d e Æ c ie n t . Jurisdiction for matters under the IBC has been exclusively conferred on the National Company Law Tribunal (the “NCLT”), thus relieving the burden on High Courts and providing redressal to financial and operational creditors in relation to non-performing assets.Recognising that the Government is the most prolific litigant before Indian courts, in a bid to improve the judicial landscape and make India an attractive investment destination, the Government introduced the Vivad se Vishwas II (Contractual Disputes) scheme for the settlement of disputes involving government entities. It applies to disputes where the claim was raised on or before September 30, 2022 and includes cases at different stages of proceedings, from the time of invocation of an arbitration to pending challenges to arbitral awards. Depending on the stage of the dispute / legal proceeding, a |
7 | Despite India becoming a heavy contributor to the global economy, it suffers the drawback of an overburdened judiciary, with an ever- increasing caseload. The consequent delay in the judicial process has contributed to the perception that it is di Æcult to successfully prosecute a claim or enforce a judgment or arbitral award in India. Efforts to improve the process in the last few years include major amendments to the Indian arbitration regime, the setting up of commercial courts and divisions to adjudicate ‘Commercial Disputes’ of ‘Specified Value’, and matters connected th e r e w i th , in c lu d in g in c id e n ta l amendments to the Code of Civil Procedure, 1908.Other notable reforms include the repeal of the Companies Act, 1956 with the introduction of the Companies Act, 2013 (“Companies Act”). This also brought along with it a complete overhaul of the liquidation and bankruptcy process with the Insolvency and Bankruptcy Code, 2016 (the “IBC”), consolidating various legislations which deal with insolvency of individuals, partnerships and limited liability partnerships into one single legislation thereby making the process m o r e str e a m l in e d a n d e Æ c ie n t . Jurisdiction for matters under the IBC has been exclusively conferred on the National Company Law Tribunal (the “NCLT”), thus relieving the burden on High Courts and providing redressal to financial and operational creditors in relation to non-performing assets.Recognising that the Government is the most prolific litigant before Indian courts, in a bid to improve the judicial landscape and make India an attractive investment destination, the Government introduced the Vivad se Vishwas II (Contractual Disputes) scheme for the settlement of disputes involving government entities. It applies to disputes where the claim was raised on or before September 30, 2022 and includes cases at different stages of proceedings, from the time of invocation of an arbitration to pending challenges to arbitral awards. Depending on the stage of the dispute / legal proceeding, a6. |
8 | Other notable reforms include the repeal of the Companies Act, 1956 with the introduction of the Companies Act, 2013 (“Companies Act”). This also brought along with it a complete overhaul of the liquidation and bankruptcy process with the Insolvency and Bankruptcy Code, 2016 (the “IBC”), consolidating various legislations which deal with insolvency of individuals, partnerships and limited liability partnerships into one single legislation thereby making the process m o r e str e a m l in e d a n d e Æ c ie n t . Jurisdiction for matters under the IBC has been exclusively conferred on the National Company Law Tribunal (the “NCLT”), thus relieving the burden on High Courts and providing redressal to financial and operational creditors in relation to non-performing assets.Recognising that the Government is the most prolific litigant before Indian courts, in a bid to improve the judicial landscape and make India an attractive investment destination, the Government introduced the Vivad se Vishwas II (Contractual Disputes) scheme for the settlement of disputes involving government entities. It applies to disputes where the claim was raised on or before September 30, 2022 and includes cases at different stages of proceedings, from the time of invocation of an arbitration to pending challenges to arbitral awards. Depending on the stage of the dispute / legal proceeding, a6. |
9 | Recognising that the Government is the most prolific litigant before Indian courts, in a bid to improve the judicial landscape and make India an attractive investment destination, the Government introduced the Vivad se Vishwas II (Contractual Disputes) scheme for the settlement of disputes involving government entities. It applies to disputes where the claim was raised on or before September 30, 2022 and includes cases at different stages of proceedings, from the time of invocation of an arbitration to pending challenges to arbitral awards. Depending on the stage of the dispute / legal proceeding, a6. |
10 | percentage is ascribed for the settlement of a claim made by private entities against the government and / or government / public entities. It is hoped that the Vivad se Vishwas II scheme will help free up government funds which would otherwise likely be tied up for decades in litigation, whilst aiding private companies / individuals in recovery of awarded amounts, and easing the caseload in courts – a testament to the Government’s intent once again, to ensure an eÆcient determination of disputes.Building on the path of liberalisation, with the backing of the Government, in March 2023 the Bar Council of India notified rules permitting the entry of foreign lawyers in India, entitling them to practice in specified “non-litigious” areas once they are registered under the Rules. Foreign lawyers and firms can also continue to practice on a fly in, fly out basis as permitted earlier. |
11 | percentage is ascribed for the settlement of a claim made by private entities against the government and / or government / public entities. It is hoped that the Vivad se Vishwas II scheme will help free up government funds which would otherwise likely be tied up for decades in litigation, whilst aiding private companies / individuals in recovery of awarded amounts, and easing the caseload in courts – a testament to the Government’s intent once again, to ensure an eÆcient determination of disputes.Building on the path of liberalisation, with the backing of the Government, in March 2023 the Bar Council of India notified rules permitting the entry of foreign lawyers in India, entitling them to practice in specified “non-litigious” areas once they are registered under the Rules. Foreign lawyers and firms can also continue to practice on a fly in, fly out basis as permitted earlier.These reforms go towards cementing India’s position as a commercial hub, optimising it as a destination for investment, business and arbitration. Underpinning these reforms therefore is the unceasing effort to make access to justice easier and reduce the concerns of foreign investors and trading partners. |
12 | percentage is ascribed for the settlement of a claim made by private entities against the government and / or government / public entities. It is hoped that the Vivad se Vishwas II scheme will help free up government funds which would otherwise likely be tied up for decades in litigation, whilst aiding private companies / individuals in recovery of awarded amounts, and easing the caseload in courts – a testament to the Government’s intent once again, to ensure an eÆcient determination of disputes.Building on the path of liberalisation, with the backing of the Government, in March 2023 the Bar Council of India notified rules permitting the entry of foreign lawyers in India, entitling them to practice in specified “non-litigious” areas once they are registered under the Rules. Foreign lawyers and firms can also continue to practice on a fly in, fly out basis as permitted earlier.These reforms go towards cementing India’s position as a commercial hub, optimising it as a destination for investment, business and arbitration. Underpinning these reforms therefore is the unceasing effort to make access to justice easier and reduce the concerns of foreign investors and trading partners.Doing business in a foreign country can be fraught with uncertainties and unpredictable outcomes. The support of a |
13 | percentage is ascribed for the settlement of a claim made by private entities against the government and / or government / public entities. It is hoped that the Vivad se Vishwas II scheme will help free up government funds which would otherwise likely be tied up for decades in litigation, whilst aiding private companies / individuals in recovery of awarded amounts, and easing the caseload in courts – a testament to the Government’s intent once again, to ensure an eÆcient determination of disputes.Building on the path of liberalisation, with the backing of the Government, in March 2023 the Bar Council of India notified rules permitting the entry of foreign lawyers in India, entitling them to practice in specified “non-litigious” areas once they are registered under the Rules. Foreign lawyers and firms can also continue to practice on a fly in, fly out basis as permitted earlier.These reforms go towards cementing India’s position as a commercial hub, optimising it as a destination for investment, business and arbitration. Underpinning these reforms therefore is the unceasing effort to make access to justice easier and reduce the concerns of foreign investors and trading partners.Doing business in a foreign country can be fraught with uncertainties and unpredictable outcomes. The support of a |
14 | Building on the path of liberalisation, with the backing of the Government, in March 2023 the Bar Council of India notified rules permitting the entry of foreign lawyers in India, entitling them to practice in specified “non-litigious” areas once they are registered under the Rules. Foreign lawyers and firms can also continue to practice on a fly in, fly out basis as permitted earlier.These reforms go towards cementing India’s position as a commercial hub, optimising it as a destination for investment, business and arbitration. Underpinning these reforms therefore is the unceasing effort to make access to justice easier and reduce the concerns of foreign investors and trading partners.Doing business in a foreign country can be fraught with uncertainties and unpredictable outcomes. The support of a |
15 | robust legal regime and familiarisation with the process can lessen such unpredictability. These reforms and an overview of the dispute resolution process in India – with a focus on litigation is further discussed in the relevant chapters of this Guide / Handbook, which we present to our readers in the hope that this will give them a reasonable understanding of the process. |
16 | robust legal regime and familiarisation with the process can lessen such unpredictability. These reforms and an overview of the dispute resolution process in India – with a focus on litigation is further discussed in the relevant chapters of this Guide / Handbook, which we present to our readers in the hope that this will give them a reasonable understanding of the process.IMPORTANT NOTE: All information given in this handbook has been compiled from credible, reliable sources. Although reasonable care has been taken to ensure that the information in this handbook is true and accurate, such information is provided as is, without any warranty, express or implied, as to the accuracy or completeness of any such information. Cyril Amarchand Mangaldas will not be liable for any losses incurred by any person from any use of this publication or i ts contents. This handbook has been prepared for informational purposes only and nothing contained in this handbook constitutes legal or any other form of advice from Cyril Amarchand Mangaldas. Readers should consult their legal, tax and other advisors before making any investment or other decision with regard to any business in India. |
17 | robust legal regime and familiarisation with the process can lessen such unpredictability. These reforms and an overview of the dispute resolution process in India – with a focus on litigation is further discussed in the relevant chapters of this Guide / Handbook, which we present to our readers in the hope that this will give them a reasonable understanding of the process.IMPORTANT NOTE: All information given in this handbook has been compiled from credible, reliable sources. Although reasonable care has been taken to ensure that the information in this handbook is true and accurate, such information is provided as is, without any warranty, express or implied, as to the accuracy or completeness of any such information. Cyril Amarchand Mangaldas will not be liable for any losses incurred by any person from any use of this publication or i ts contents. This handbook has been prepared for informational purposes only and nothing contained in this handbook constitutes legal or any other form of advice from Cyril Amarchand Mangaldas. Readers should consult their legal, tax and other advisors before making any investment or other decision with regard to any business in India. |
18 | IMPORTANT NOTE: All information given in this handbook has been compiled from credible, reliable sources. Although reasonable care has been taken to ensure that the information in this handbook is true and accurate, such information is provided as is, without any warranty, express or implied, as to the accuracy or completeness of any such information. Cyril Amarchand Mangaldas will not be liable for any losses incurred by any person from any use of this publication or i ts contents. This handbook has been prepared for informational purposes only and nothing contained in this handbook constitutes legal or any other form of advice from Cyril Amarchand Mangaldas. Readers should consult their legal, tax and other advisors before making any investment or other decision with regard to any business in India.7.LITIGATION IN CIVIL COURTS01 India – A Common Law System |
19 | 01 India – A Common Law SystemIndia is primarily a common law jurisdiction. There are certain personal laws based on customary practice that are applicable to some religious communities. Indian law is largely similar to English common law in many aspects because of the long period of British colonial influence during the British Raj period. Indeed, several legislations were framed by the British based on their own laws, some of which continue to this day, for example, contract law, penal laws, evidence, general civil procedure etc. Some laws that operate on personal / familial relationships, are based on custom or religion of individuals covered thereby, typically in relation to marriage and succession. |
20 | 01 India – A Common Law SystemIndia is primarily a common law jurisdiction. There are certain personal laws based on customary practice that are applicable to some religious communities. Indian law is largely similar to English common law in many aspects because of the long period of British colonial influence during the British Raj period. Indeed, several legislations were framed by the British based on their own laws, some of which continue to this day, for example, contract law, penal laws, evidence, general civil procedure etc. Some laws that operate on personal / familial relationships, are based on custom or religion of individuals covered thereby, typically in relation to marriage and succession.In India, the common law system, which is based on the principle that it is unfair to treat similar facts differently on different occasions, earlier decided cases are treated as binding precedents on lower courts and of persuasive value in courts with the same or superior jurisdiction. There are several pieces of legislation that were enacted pre-independence by the Imperial Legislative Council, such as: the Indian Penal Code, 1860 (“IPC”), the Indian Contract Act 1872, the Evidence Act 1872, etc. |
21 | India is primarily a common law jurisdiction. There are certain personal laws based on customary practice that are applicable to some religious communities. Indian law is largely similar to English common law in many aspects because of the long period of British colonial influence during the British Raj period. Indeed, several legislations were framed by the British based on their own laws, some of which continue to this day, for example, contract law, penal laws, evidence, general civil procedure etc. Some laws that operate on personal / familial relationships, are based on custom or religion of individuals covered thereby, typically in relation to marriage and succession.In India, the common law system, which is based on the principle that it is unfair to treat similar facts differently on different occasions, earlier decided cases are treated as binding precedents on lower courts and of persuasive value in courts with the same or superior jurisdiction. There are several pieces of legislation that were enacted pre-independence by the Imperial Legislative Council, such as: the Indian Penal Code, 1860 (“IPC”), the Indian Contract Act 1872, the Evidence Act 1872, etc.The Constitution of India, 1950 adopts a quasi-federal structure. The 7th Schedule a l lo c a te s s u b j e c ts b e tw e e n th e Parliament and the state legislatures into |
22 | India is primarily a common law jurisdiction. There are certain personal laws based on customary practice that are applicable to some religious communities. Indian law is largely similar to English common law in many aspects because of the long period of British colonial influence during the British Raj period. Indeed, several legislations were framed by the British based on their own laws, some of which continue to this day, for example, contract law, penal laws, evidence, general civil procedure etc. Some laws that operate on personal / familial relationships, are based on custom or religion of individuals covered thereby, typically in relation to marriage and succession.In India, the common law system, which is based on the principle that it is unfair to treat similar facts differently on different occasions, earlier decided cases are treated as binding precedents on lower courts and of persuasive value in courts with the same or superior jurisdiction. There are several pieces of legislation that were enacted pre-independence by the Imperial Legislative Council, such as: the Indian Penal Code, 1860 (“IPC”), the Indian Contract Act 1872, the Evidence Act 1872, etc.The Constitution of India, 1950 adopts a quasi-federal structure. The 7th Schedule a l lo c a te s s u b j e c ts b e tw e e n th e Parliament and the state legislatures into3 lists (i.e. Union, State and Concurrent Lists). |
23 | India is primarily a common law jurisdiction. There are certain personal laws based on customary practice that are applicable to some religious communities. Indian law is largely similar to English common law in many aspects because of the long period of British colonial influence during the British Raj period. Indeed, several legislations were framed by the British based on their own laws, some of which continue to this day, for example, contract law, penal laws, evidence, general civil procedure etc. Some laws that operate on personal / familial relationships, are based on custom or religion of individuals covered thereby, typically in relation to marriage and succession.In India, the common law system, which is based on the principle that it is unfair to treat similar facts differently on different occasions, earlier decided cases are treated as binding precedents on lower courts and of persuasive value in courts with the same or superior jurisdiction. There are several pieces of legislation that were enacted pre-independence by the Imperial Legislative Council, such as: the Indian Penal Code, 1860 (“IPC”), the Indian Contract Act 1872, the Evidence Act 1872, etc.The Constitution of India, 1950 adopts a quasi-federal structure. The 7th Schedule a l lo c a te s s u b j e c ts b e tw e e n th e Parliament and the state legislatures into3 lists (i.e. Union, State and Concurrent Lists).The Parliament, the apex legislative body, consists of 2 houses and is empowered to enact laws on subjects in the Union List. The state legislatures are empowered to enact laws on subjects in the State List. Both the Parliament and the state legislatures may enact laws on subjects mentioned in the Concurrent list but in case of a conflict, the law enacted by the Parliament prevails. Laws enacted by the Parliament and the state legislatures are binding, as also, laws pronounced by the Supreme Court (by way of judicial pronouncements). |
24 | In India, the common law system, which is based on the principle that it is unfair to treat similar facts differently on different occasions, earlier decided cases are treated as binding precedents on lower courts and of persuasive value in courts with the same or superior jurisdiction. There are several pieces of legislation that were enacted pre-independence by the Imperial Legislative Council, such as: the Indian Penal Code, 1860 (“IPC”), the Indian Contract Act 1872, the Evidence Act 1872, etc.The Constitution of India, 1950 adopts a quasi-federal structure. The 7th Schedule a l lo c a te s s u b j e c ts b e tw e e n th e Parliament and the state legislatures into3 lists (i.e. Union, State and Concurrent Lists).The Parliament, the apex legislative body, consists of 2 houses and is empowered to enact laws on subjects in the Union List. The state legislatures are empowered to enact laws on subjects in the State List. Both the Parliament and the state legislatures may enact laws on subjects mentioned in the Concurrent list but in case of a conflict, the law enacted by the Parliament prevails. Laws enacted by the Parliament and the state legislatures are binding, as also, laws pronounced by the Supreme Court (by way of judicial pronouncements).Laws enacted by the Parliament are published in the Gazette of India, whereas laws enacted by the state legislatures are published in their respective state gazettes. The Parliament as well as the state legislatures are empowered to enact legislation having retrospective effect, apart from criminal legislation. Laws are generally applicable prospectively, unless specifically mentioned otherwise. |
25 | The Constitution of India, 1950 adopts a quasi-federal structure. The 7th Schedule a l lo c a te s s u b j e c ts b e tw e e n th e Parliament and the state legislatures into3 lists (i.e. Union, State and Concurrent Lists).The Parliament, the apex legislative body, consists of 2 houses and is empowered to enact laws on subjects in the Union List. The state legislatures are empowered to enact laws on subjects in the State List. Both the Parliament and the state legislatures may enact laws on subjects mentioned in the Concurrent list but in case of a conflict, the law enacted by the Parliament prevails. Laws enacted by the Parliament and the state legislatures are binding, as also, laws pronounced by the Supreme Court (by way of judicial pronouncements).Laws enacted by the Parliament are published in the Gazette of India, whereas laws enacted by the state legislatures are published in their respective state gazettes. The Parliament as well as the state legislatures are empowered to enact legislation having retrospective effect, apart from criminal legislation. Laws are generally applicable prospectively, unless specifically mentioned otherwise.Indian court proceedings are adversarial, |
26 | 3 lists (i.e. Union, State and Concurrent Lists).The Parliament, the apex legislative body, consists of 2 houses and is empowered to enact laws on subjects in the Union List. The state legislatures are empowered to enact laws on subjects in the State List. Both the Parliament and the state legislatures may enact laws on subjects mentioned in the Concurrent list but in case of a conflict, the law enacted by the Parliament prevails. Laws enacted by the Parliament and the state legislatures are binding, as also, laws pronounced by the Supreme Court (by way of judicial pronouncements).Laws enacted by the Parliament are published in the Gazette of India, whereas laws enacted by the state legislatures are published in their respective state gazettes. The Parliament as well as the state legislatures are empowered to enact legislation having retrospective effect, apart from criminal legislation. Laws are generally applicable prospectively, unless specifically mentioned otherwise.Indian court proceedings are adversarial,i.e. where parties present their case before a judge who must remain impartial and refrain from acting as an inquisitor (as he may in a civil law jurisdiction). The court may, to effectively rule on an issue (on matters of both law |
27 | The Parliament, the apex legislative body, consists of 2 houses and is empowered to enact laws on subjects in the Union List. The state legislatures are empowered to enact laws on subjects in the State List. Both the Parliament and the state legislatures may enact laws on subjects mentioned in the Concurrent list but in case of a conflict, the law enacted by the Parliament prevails. Laws enacted by the Parliament and the state legislatures are binding, as also, laws pronounced by the Supreme Court (by way of judicial pronouncements).Laws enacted by the Parliament are published in the Gazette of India, whereas laws enacted by the state legislatures are published in their respective state gazettes. The Parliament as well as the state legislatures are empowered to enact legislation having retrospective effect, apart from criminal legislation. Laws are generally applicable prospectively, unless specifically mentioned otherwise.Indian court proceedings are adversarial,i.e. where parties present their case before a judge who must remain impartial and refrain from acting as an inquisitor (as he may in a civil law jurisdiction). The court may, to effectively rule on an issue (on matters of both law |
28 | Laws enacted by the Parliament are published in the Gazette of India, whereas laws enacted by the state legislatures are published in their respective state gazettes. The Parliament as well as the state legislatures are empowered to enact legislation having retrospective effect, apart from criminal legislation. Laws are generally applicable prospectively, unless specifically mentioned otherwise.Indian court proceedings are adversarial,i.e. where parties present their case before a judge who must remain impartial and refrain from acting as an inquisitor (as he may in a civil law jurisdiction). The court may, to effectively rule on an issue (on matters of both law10.and fact), put questions to a witness, or direct parties to lead evidence on certain aspects. In the late 1960s, India abolished the jury system for civil and criminal proceedings, except for matrimonial d is p u te s r e la t in g to th e ‘ Pa r s i ’ community. |
29 | and fact), put questions to a witness, or direct parties to lead evidence on certain aspects. In the late 1960s, India abolished the jury system for civil and criminal proceedings, except for matrimonial d is p u te s r e la t in g to th e ‘ Pa r s i ’ community.Civil courts in India are governed by the procedure set out in the Code of Civil Procedure, 1908 (“CPC”). Criminal offences are covered by the IPC, and criminal courts are governed by the procedure set out in the Code of Criminal Procedure, 1973 (“CrPC”).11..02 India’s Judicial SystemThe Indian Constitution is federal in form but quasi-federal in spirit - the Constitution is supreme and there is a division of power between the Union and States i.e. the Constitution provides for a union list, state list and a concurrent list. The judiciary is wholly independent of the legislature and executive, and historically, has been a very activist judiciary.India's judicial system is broken up into three distinct streams, |
30 | The Indian Constitution is federal in form but quasi-federal in spirit - the Constitution is supreme and there is a division of power between the Union and States i.e. the Constitution provides for a union list, state list and a concurrent list. The judiciary is wholly independent of the legislature and executive, and historically, has been a very activist judiciary.India's judicial system is broken up into three distinct streams,i.e. criminal, civil cases and other cases which may be referred to specific statutorily constituted courts and tribunals depending on subject matter and the status concerned. Jurisdiction of a court is dependent on its territorial and pecuniary limits and may also be circumscribed by subject matter. Some courts or tribunals are c o n fe r r e d w i th e xc lu s iv ejurisdiction over matters and disputes of a particular subject matter. |
31 | The Indian Constitution is federal in form but quasi-federal in spirit - the Constitution is supreme and there is a division of power between the Union and States i.e. the Constitution provides for a union list, state list and a concurrent list. The judiciary is wholly independent of the legislature and executive, and historically, has been a very activist judiciary.India's judicial system is broken up into three distinct streams,i.e. criminal, civil cases and other cases which may be referred to specific statutorily constituted courts and tribunals depending on subject matter and the status concerned. Jurisdiction of a court is dependent on its territorial and pecuniary limits and may also be circumscribed by subject matter. Some courts or tribunals are c o n fe r r e d w i th e xc lu s iv ejurisdiction over matters and disputes of a particular subject matter.The principal court of original jurisdiction is the City Civil Court (in metropolitan areas) and the Court of Civil Judge, S e n io r D iv is io n ( in n o n - metropolitan areas). There are 25 High Courts covering the 28 States and 8 Union Territories of India. The High Court is the cour t of appeal and has supervisory jurisdiction over all lower courts and tribunals in the State / Union Territory over w h i c h i t h a s t e r r i t o r i a l jurisdiction. The High Courts of Bombay, Delhi, Calcutta, Madras and Himachal Pradesh, also have original jurisdiction. |
32 | India's judicial system is broken up into three distinct streams,i.e. criminal, civil cases and other cases which may be referred to specific statutorily constituted courts and tribunals depending on subject matter and the status concerned. Jurisdiction of a court is dependent on its territorial and pecuniary limits and may also be circumscribed by subject matter. Some courts or tribunals are c o n fe r r e d w i th e xc lu s iv ejurisdiction over matters and disputes of a particular subject matter.The principal court of original jurisdiction is the City Civil Court (in metropolitan areas) and the Court of Civil Judge, S e n io r D iv is io n ( in n o n - metropolitan areas). There are 25 High Courts covering the 28 States and 8 Union Territories of India. The High Court is the cour t of appeal and has supervisory jurisdiction over all lower courts and tribunals in the State / Union Territory over w h i c h i t h a s t e r r i t o r i a l jurisdiction. The High Courts of Bombay, Delhi, Calcutta, Madras and Himachal Pradesh, also have original jurisdiction.The Supreme Court of India has overall superintendence over all High Courts and lower courts and tribunals in India, and is the final court of appeal. |
33 | i.e. criminal, civil cases and other cases which may be referred to specific statutorily constituted courts and tribunals depending on subject matter and the status concerned. Jurisdiction of a court is dependent on its territorial and pecuniary limits and may also be circumscribed by subject matter. Some courts or tribunals are c o n fe r r e d w i th e xc lu s iv ejurisdiction over matters and disputes of a particular subject matter.The principal court of original jurisdiction is the City Civil Court (in metropolitan areas) and the Court of Civil Judge, S e n io r D iv is io n ( in n o n - metropolitan areas). There are 25 High Courts covering the 28 States and 8 Union Territories of India. The High Court is the cour t of appeal and has supervisory jurisdiction over all lower courts and tribunals in the State / Union Territory over w h i c h i t h a s t e r r i t o r i a l jurisdiction. The High Courts of Bombay, Delhi, Calcutta, Madras and Himachal Pradesh, also have original jurisdiction.The Supreme Court of India has overall superintendence over all High Courts and lower courts and tribunals in India, and is the final court of appeal. |
34 | jurisdiction over matters and disputes of a particular subject matter.The principal court of original jurisdiction is the City Civil Court (in metropolitan areas) and the Court of Civil Judge, S e n io r D iv is io n ( in n o n - metropolitan areas). There are 25 High Courts covering the 28 States and 8 Union Territories of India. The High Court is the cour t of appeal and has supervisory jurisdiction over all lower courts and tribunals in the State / Union Territory over w h i c h i t h a s t e r r i t o r i a l jurisdiction. The High Courts of Bombay, Delhi, Calcutta, Madras and Himachal Pradesh, also have original jurisdiction.The Supreme Court of India has overall superintendence over all High Courts and lower courts and tribunals in India, and is the final court of appeal.12.Supreme Court: |
35 | Supreme Court:Under the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest / final court of appeal, having overall supervisory jurisdiction over State High Courts and all lower courts and tribunals in India. The Supreme Court is established under Article 124 of the Constitution and has a sanctioned strength of 34 judges who can sit singly or in benches of 2 or more j u d g e s . M a t t e r s i n v o l v i n g a substantial question of law as to the interpretation of the Constitution are heard by larger benches comprising 5 or more judges (up to even 13 judges). |
36 | Supreme Court:Under the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest / final court of appeal, having overall supervisory jurisdiction over State High Courts and all lower courts and tribunals in India. The Supreme Court is established under Article 124 of the Constitution and has a sanctioned strength of 34 judges who can sit singly or in benches of 2 or more j u d g e s . M a t t e r s i n v o l v i n g a substantial question of law as to the interpretation of the Constitution are heard by larger benches comprising 5 or more judges (up to even 13 judges).In its original writ jurisdiction, the Supreme Court is empowered to e n f o r c e f u n d a m e n t a l r i g h t s guaranteed under the Constitution by issuing directions, orders, or writs (including writs in the nature of h a b e a s c o r p u s , m a n d a m u s , prohibition, quo warranto, and certiorari). It may also adjudicate upon disputes between the Union and one or more States, or a dispute, inter se, between two or more States, where the dispute involves any question (whether of law, or of fact), on which the existence, or extent of a legal right depends. |
37 | Supreme Court:Under the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest / final court of appeal, having overall supervisory jurisdiction over State High Courts and all lower courts and tribunals in India. The Supreme Court is established under Article 124 of the Constitution and has a sanctioned strength of 34 judges who can sit singly or in benches of 2 or more j u d g e s . M a t t e r s i n v o l v i n g a substantial question of law as to the interpretation of the Constitution are heard by larger benches comprising 5 or more judges (up to even 13 judges).In its original writ jurisdiction, the Supreme Court is empowered to e n f o r c e f u n d a m e n t a l r i g h t s guaranteed under the Constitution by issuing directions, orders, or writs (including writs in the nature of h a b e a s c o r p u s , m a n d a m u s , prohibition, quo warranto, and certiorari). It may also adjudicate upon disputes between the Union and one or more States, or a dispute, inter se, between two or more States, where the dispute involves any question (whether of law, or of fact), on which the existence, or extent of a legal right depends.The Supreme Court is also empowered to transfer any civil or criminal cases from one High Court to another, if |
38 | Supreme Court:Under the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest / final court of appeal, having overall supervisory jurisdiction over State High Courts and all lower courts and tribunals in India. The Supreme Court is established under Article 124 of the Constitution and has a sanctioned strength of 34 judges who can sit singly or in benches of 2 or more j u d g e s . M a t t e r s i n v o l v i n g a substantial question of law as to the interpretation of the Constitution are heard by larger benches comprising 5 or more judges (up to even 13 judges).In its original writ jurisdiction, the Supreme Court is empowered to e n f o r c e f u n d a m e n t a l r i g h t s guaranteed under the Constitution by issuing directions, orders, or writs (including writs in the nature of h a b e a s c o r p u s , m a n d a m u s , prohibition, quo warranto, and certiorari). It may also adjudicate upon disputes between the Union and one or more States, or a dispute, inter se, between two or more States, where the dispute involves any question (whether of law, or of fact), on which the existence, or extent of a legal right depends.The Supreme Court is also empowered to transfer any civil or criminal cases from one High Court to another, ifsatisfied that they involve similar questions of law. If it believes that such questions are of substantial general importance, the Supreme Court may withdraw a case from the High Court or High Courts to entertain and dispose of such case, itself. |
39 | Under the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest / final court of appeal, having overall supervisory jurisdiction over State High Courts and all lower courts and tribunals in India. The Supreme Court is established under Article 124 of the Constitution and has a sanctioned strength of 34 judges who can sit singly or in benches of 2 or more j u d g e s . M a t t e r s i n v o l v i n g a substantial question of law as to the interpretation of the Constitution are heard by larger benches comprising 5 or more judges (up to even 13 judges).In its original writ jurisdiction, the Supreme Court is empowered to e n f o r c e f u n d a m e n t a l r i g h t s guaranteed under the Constitution by issuing directions, orders, or writs (including writs in the nature of h a b e a s c o r p u s , m a n d a m u s , prohibition, quo warranto, and certiorari). It may also adjudicate upon disputes between the Union and one or more States, or a dispute, inter se, between two or more States, where the dispute involves any question (whether of law, or of fact), on which the existence, or extent of a legal right depends.The Supreme Court is also empowered to transfer any civil or criminal cases from one High Court to another, ifsatisfied that they involve similar questions of law. If it believes that such questions are of substantial general importance, the Supreme Court may withdraw a case from the High Court or High Courts to entertain and dispose of such case, itself.The Supreme Court’s appellate jurisdiction can be invoked in respect of any judgment, decree, or final order of a High Court (in both civil and criminal cases). Invocation of its appellate jurisdiction is on the basis of a certificate from the High Court concerned that the case involves a substantial question of law as to the interpretation of the Constitution, or of general importance which needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court has reversed an order of acquittal and sentenced a person to death, or imprisonment for at least 10 years, or certified that the case is fit for appeal to the Supreme Court. The appellate jurisdiction of the Supreme Court can also be invoked from the decisions of some tribunals, for instance, the NCLAT and the SAT. |
40 | In its original writ jurisdiction, the Supreme Court is empowered to e n f o r c e f u n d a m e n t a l r i g h t s guaranteed under the Constitution by issuing directions, orders, or writs (including writs in the nature of h a b e a s c o r p u s , m a n d a m u s , prohibition, quo warranto, and certiorari). It may also adjudicate upon disputes between the Union and one or more States, or a dispute, inter se, between two or more States, where the dispute involves any question (whether of law, or of fact), on which the existence, or extent of a legal right depends.The Supreme Court is also empowered to transfer any civil or criminal cases from one High Court to another, ifsatisfied that they involve similar questions of law. If it believes that such questions are of substantial general importance, the Supreme Court may withdraw a case from the High Court or High Courts to entertain and dispose of such case, itself.The Supreme Court’s appellate jurisdiction can be invoked in respect of any judgment, decree, or final order of a High Court (in both civil and criminal cases). Invocation of its appellate jurisdiction is on the basis of a certificate from the High Court concerned that the case involves a substantial question of law as to the interpretation of the Constitution, or of general importance which needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court has reversed an order of acquittal and sentenced a person to death, or imprisonment for at least 10 years, or certified that the case is fit for appeal to the Supreme Court. The appellate jurisdiction of the Supreme Court can also be invoked from the decisions of some tribunals, for instance, the NCLAT and the SAT.In fit cases, on important issues of law, the Supreme Court may be approached for special leave to appeal, against any judgment, or order of any court in India (not including a court constituted by, or under any law relating to the Armed |
41 | The Supreme Court is also empowered to transfer any civil or criminal cases from one High Court to another, ifsatisfied that they involve similar questions of law. If it believes that such questions are of substantial general importance, the Supreme Court may withdraw a case from the High Court or High Courts to entertain and dispose of such case, itself.The Supreme Court’s appellate jurisdiction can be invoked in respect of any judgment, decree, or final order of a High Court (in both civil and criminal cases). Invocation of its appellate jurisdiction is on the basis of a certificate from the High Court concerned that the case involves a substantial question of law as to the interpretation of the Constitution, or of general importance which needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court has reversed an order of acquittal and sentenced a person to death, or imprisonment for at least 10 years, or certified that the case is fit for appeal to the Supreme Court. The appellate jurisdiction of the Supreme Court can also be invoked from the decisions of some tribunals, for instance, the NCLAT and the SAT.In fit cases, on important issues of law, the Supreme Court may be approached for special leave to appeal, against any judgment, or order of any court in India (not including a court constituted by, or under any law relating to the Armed |
42 | satisfied that they involve similar questions of law. If it believes that such questions are of substantial general importance, the Supreme Court may withdraw a case from the High Court or High Courts to entertain and dispose of such case, itself.The Supreme Court’s appellate jurisdiction can be invoked in respect of any judgment, decree, or final order of a High Court (in both civil and criminal cases). Invocation of its appellate jurisdiction is on the basis of a certificate from the High Court concerned that the case involves a substantial question of law as to the interpretation of the Constitution, or of general importance which needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court has reversed an order of acquittal and sentenced a person to death, or imprisonment for at least 10 years, or certified that the case is fit for appeal to the Supreme Court. The appellate jurisdiction of the Supreme Court can also be invoked from the decisions of some tribunals, for instance, the NCLAT and the SAT.In fit cases, on important issues of law, the Supreme Court may be approached for special leave to appeal, against any judgment, or order of any court in India (not including a court constituted by, or under any law relating to the Armed |
43 | The Supreme Court’s appellate jurisdiction can be invoked in respect of any judgment, decree, or final order of a High Court (in both civil and criminal cases). Invocation of its appellate jurisdiction is on the basis of a certificate from the High Court concerned that the case involves a substantial question of law as to the interpretation of the Constitution, or of general importance which needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court has reversed an order of acquittal and sentenced a person to death, or imprisonment for at least 10 years, or certified that the case is fit for appeal to the Supreme Court. The appellate jurisdiction of the Supreme Court can also be invoked from the decisions of some tribunals, for instance, the NCLAT and the SAT.In fit cases, on important issues of law, the Supreme Court may be approached for special leave to appeal, against any judgment, or order of any court in India (not including a court constituted by, or under any law relating to the Armed |
44 | In fit cases, on important issues of law, the Supreme Court may be approached for special leave to appeal, against any judgment, or order of any court in India (not including a court constituted by, or under any law relating to the Armed13..Forces), including in respect of one against which there is no statutory right of appeal.High Courts:The High Court is the supreme judicial authority at the State level and generally the last court of regular appeals. Judges in the High Court, either sit singly, or in benches of two or more judges. There are currently 25 High Courts in the country (the oldest being the Calcutta High Court), established under Article 214 of the Constitution of India.The Constitution confers on every H i g h C o u r t t h e p o w e r o f superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except those constituted by any law relating to the armed forces). |
45 | High Courts:The High Court is the supreme judicial authority at the State level and generally the last court of regular appeals. Judges in the High Court, either sit singly, or in benches of two or more judges. There are currently 25 High Courts in the country (the oldest being the Calcutta High Court), established under Article 214 of the Constitution of India.The Constitution confers on every H i g h C o u r t t h e p o w e r o f superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except those constituted by any law relating to the armed forces).The High Courts of Bombay, Madras, Calcutta, Delhi and Himachal Pradesh have original jurisdiction, i.e. a case may be instituted before them in the first instance. These Courts also have a pecuniary limit, below which they may not exercise original jurisdiction.1The remaining High Courts have only appellate jurisdiction, over orders and |
46 | The remaining High Courts have only appellate jurisdiction, over orders andjudgments passed by lower courts and tribunals over which they exercise jurisdiction.In its writ jurisdiction, a High Court is empowered to enforce fundamental rights and for any other purpose guaranteed to each citizen of India under the Constitution and remedy any violation thereof. For this purpose, the High Court may issue directions, orders, or writs (including of habeas corpus, mandamus, prohibition, quo warranto and certiorari).In its appellate jurisdiction, a High Court is the highest court of appeal in a State and the final court of appeal (except in specific cases where the Supreme Court has been statutorily conferred with appellate jurisdiction).1 As of April 2023, the pecuniary jurisdiction of these High Courts is for a claim above: INR 10,000,000/- in the Bombay High Court |
47 | 1 As of April 2023, the pecuniary jurisdiction of these High Courts is for a claim above: INR 10,000,000/- in the Bombay High CourtINR 1,000,000/- in the Calcutta High Court INR 10,000,000/- in the Madras High Court INR 20,000,000/- in the Delhi High Court INR 10,000,000/- in the Himachal Pradesh High Court14.The High Court also exercises t e s t a m e n t a r y a n d i n t e s t a t e jurisdiction, for probates, challenging a will, issuance of letters of administration and succession certificates etc. for administration of the estate of a deceased person. |
48 | The High Court also exercises t e s t a m e n t a r y a n d i n t e s t a t e jurisdiction, for probates, challenging a will, issuance of letters of administration and succession certificates etc. for administration of the estate of a deceased person.The High Courts in the coastal states of Gujarat, Maharashtra, West Bengal, A n d h r a P r a d e s h , T e l a n g a n a , Karnataka, Kerala, Orissa and Tamil Nadu exercise admiralty jurisdiction. This jurisdiction extends over any ship that is present in their territorial waters (irrespective of whether or not she is a national of, or registered in India, regardless of residence, or domicile of her owners). In India, an action in rem lies in a High Court against a foreign-owned ship, for a cause of action arising from tort, or a breach of obligation under a contract for carriage of goods from a port in India to a foreign port.District Courts: |
49 | The High Court also exercises t e s t a m e n t a r y a n d i n t e s t a t e jurisdiction, for probates, challenging a will, issuance of letters of administration and succession certificates etc. for administration of the estate of a deceased person.The High Courts in the coastal states of Gujarat, Maharashtra, West Bengal, A n d h r a P r a d e s h , T e l a n g a n a , Karnataka, Kerala, Orissa and Tamil Nadu exercise admiralty jurisdiction. This jurisdiction extends over any ship that is present in their territorial waters (irrespective of whether or not she is a national of, or registered in India, regardless of residence, or domicile of her owners). In India, an action in rem lies in a High Court against a foreign-owned ship, for a cause of action arising from tort, or a breach of obligation under a contract for carriage of goods from a port in India to a foreign port.District Courts:In metropolitan areas, the principal court of original jurisdiction is the City Civil Court and the High Court of the relevant State is the court of appeal. In non-metropolitan areas, the Court of Civil Judge, Senior and Junior Divisions, is the principal court of original jurisdiction and the District Court is the court of appeal. The principal court of criminal jurisdiction in a State is the Sessions Court below which lie the Chief Judicial Magistrate |
50 | The High Courts in the coastal states of Gujarat, Maharashtra, West Bengal, A n d h r a P r a d e s h , T e l a n g a n a , Karnataka, Kerala, Orissa and Tamil Nadu exercise admiralty jurisdiction. This jurisdiction extends over any ship that is present in their territorial waters (irrespective of whether or not she is a national of, or registered in India, regardless of residence, or domicile of her owners). In India, an action in rem lies in a High Court against a foreign-owned ship, for a cause of action arising from tort, or a breach of obligation under a contract for carriage of goods from a port in India to a foreign port.District Courts:In metropolitan areas, the principal court of original jurisdiction is the City Civil Court and the High Court of the relevant State is the court of appeal. In non-metropolitan areas, the Court of Civil Judge, Senior and Junior Divisions, is the principal court of original jurisdiction and the District Court is the court of appeal. The principal court of criminal jurisdiction in a State is the Sessions Court below which lie the Chief Judicial Magistrateand the Judicial Magistrate (First and Second class). |
51 | District Courts:In metropolitan areas, the principal court of original jurisdiction is the City Civil Court and the High Court of the relevant State is the court of appeal. In non-metropolitan areas, the Court of Civil Judge, Senior and Junior Divisions, is the principal court of original jurisdiction and the District Court is the court of appeal. The principal court of criminal jurisdiction in a State is the Sessions Court below which lie the Chief Judicial Magistrateand the Judicial Magistrate (First and Second class).Small Causes Court:The Small Causes Courts in India may be broadly classified as Presidency Small Causes Courts in Mumbai, Chennai and Kolkata enacted under the Presidency Small Causes Courts Act, 1882 (“Presidency Act”) and Provincial Small Causes Courts enacted under the Provincial Small Cause Courts Act, 1887 (“Provincial Act”). The Provincial Act governs small causes courts in places other than Mumbai, Chennai, and Kolkata. |
52 | and the Judicial Magistrate (First and Second class).Small Causes Court:The Small Causes Courts in India may be broadly classified as Presidency Small Causes Courts in Mumbai, Chennai and Kolkata enacted under the Presidency Small Causes Courts Act, 1882 (“Presidency Act”) and Provincial Small Causes Courts enacted under the Provincial Small Cause Courts Act, 1887 (“Provincial Act”). The Provincial Act governs small causes courts in places other than Mumbai, Chennai, and Kolkata.Each State has the power to amend the Provincial or Presidency Acts to fix the pecuniary and territorial jurisdiction of small causes courts to suit its own requirements. Broadly, these acts provide for small causes courts to deal with matters within their pecuniary jurisdiction as fixed by the aforementioned governing acts, as modified by the State. The idea as the name suggests is for matters which are of relatively small value to be decided by these courts, though the pecuniary jurisdiction of the small causes courts, vary from State to State. |
53 | Small Causes Court:The Small Causes Courts in India may be broadly classified as Presidency Small Causes Courts in Mumbai, Chennai and Kolkata enacted under the Presidency Small Causes Courts Act, 1882 (“Presidency Act”) and Provincial Small Causes Courts enacted under the Provincial Small Cause Courts Act, 1887 (“Provincial Act”). The Provincial Act governs small causes courts in places other than Mumbai, Chennai, and Kolkata.Each State has the power to amend the Provincial or Presidency Acts to fix the pecuniary and territorial jurisdiction of small causes courts to suit its own requirements. Broadly, these acts provide for small causes courts to deal with matters within their pecuniary jurisdiction as fixed by the aforementioned governing acts, as modified by the State. The idea as the name suggests is for matters which are of relatively small value to be decided by these courts, though the pecuniary jurisdiction of the small causes courts, vary from State to State.The small causes courts also have exclusive jurisdiction to adjudicate proceedings under rent control laws, municipality laws, election petitions, anti-corruption matters, debt relief |
54 | Small Causes Court:The Small Causes Courts in India may be broadly classified as Presidency Small Causes Courts in Mumbai, Chennai and Kolkata enacted under the Presidency Small Causes Courts Act, 1882 (“Presidency Act”) and Provincial Small Causes Courts enacted under the Provincial Small Cause Courts Act, 1887 (“Provincial Act”). The Provincial Act governs small causes courts in places other than Mumbai, Chennai, and Kolkata.Each State has the power to amend the Provincial or Presidency Acts to fix the pecuniary and territorial jurisdiction of small causes courts to suit its own requirements. Broadly, these acts provide for small causes courts to deal with matters within their pecuniary jurisdiction as fixed by the aforementioned governing acts, as modified by the State. The idea as the name suggests is for matters which are of relatively small value to be decided by these courts, though the pecuniary jurisdiction of the small causes courts, vary from State to State.The small causes courts also have exclusive jurisdiction to adjudicate proceedings under rent control laws, municipality laws, election petitions, anti-corruption matters, debt relief |
55 | The Small Causes Courts in India may be broadly classified as Presidency Small Causes Courts in Mumbai, Chennai and Kolkata enacted under the Presidency Small Causes Courts Act, 1882 (“Presidency Act”) and Provincial Small Causes Courts enacted under the Provincial Small Cause Courts Act, 1887 (“Provincial Act”). The Provincial Act governs small causes courts in places other than Mumbai, Chennai, and Kolkata.Each State has the power to amend the Provincial or Presidency Acts to fix the pecuniary and territorial jurisdiction of small causes courts to suit its own requirements. Broadly, these acts provide for small causes courts to deal with matters within their pecuniary jurisdiction as fixed by the aforementioned governing acts, as modified by the State. The idea as the name suggests is for matters which are of relatively small value to be decided by these courts, though the pecuniary jurisdiction of the small causes courts, vary from State to State.The small causes courts also have exclusive jurisdiction to adjudicate proceedings under rent control laws, municipality laws, election petitions, anti-corruption matters, debt relief |
56 | Each State has the power to amend the Provincial or Presidency Acts to fix the pecuniary and territorial jurisdiction of small causes courts to suit its own requirements. Broadly, these acts provide for small causes courts to deal with matters within their pecuniary jurisdiction as fixed by the aforementioned governing acts, as modified by the State. The idea as the name suggests is for matters which are of relatively small value to be decided by these courts, though the pecuniary jurisdiction of the small causes courts, vary from State to State.The small causes courts also have exclusive jurisdiction to adjudicate proceedings under rent control laws, municipality laws, election petitions, anti-corruption matters, debt relief15.. |
57 | laws, motor vehicles laws, motor accident claims, payment of wages etc. as have been granted by various state amendments. As a result of the subject matter jurisdiction, in practice small causes courts also hear high value matters relating to matters such as rent disputes which tend to be hotly contested.Commercial Courts:The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 which was amended in 2018 to be called the Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act”), came into force on October 23, 2015 ( coincidentally, with the 2015 amendments to the Arbitration & Conciliation Act, 1996). Specialized commercial courts and divisions were set up for expeditious resolution of the growing number of commercial cases, pursuant to the Government’s |
58 | laws, motor vehicles laws, motor accident claims, payment of wages etc. as have been granted by various state amendments. As a result of the subject matter jurisdiction, in practice small causes courts also hear high value matters relating to matters such as rent disputes which tend to be hotly contested.Commercial Courts:The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 which was amended in 2018 to be called the Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act”), came into force on October 23, 2015 ( coincidentally, with the 2015 amendments to the Arbitration & Conciliation Act, 1996). Specialized commercial courts and divisions were set up for expeditious resolution of the growing number of commercial cases, pursuant to the Government’sstated intent to improve India’s ability to enforce contracts. The Commercial Courts Act envisaged the setting up of special commercial courts to adjudicate commercial disputes in a time bound manner. Consequently, civil cases in relation to commercial disputes and claims above a certain specified value (originally INR 10 million, but reduced in 2018 to INR 0.3 million), which w o u l d h a v e b e e n o t h e r w i s e adjudicated by an ordinary court, now fall under the jurisdiction of the C o m m e r c i a l C o u r t a n d t h e Commercial Division of High Court, respectively. Appeals arising out of su c h d isp u te s l ie b e fo r e th e Commercial Appellate Division of the High Court. |
59 | Commercial Courts:The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 which was amended in 2018 to be called the Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act”), came into force on October 23, 2015 ( coincidentally, with the 2015 amendments to the Arbitration & Conciliation Act, 1996). Specialized commercial courts and divisions were set up for expeditious resolution of the growing number of commercial cases, pursuant to the Government’sstated intent to improve India’s ability to enforce contracts. The Commercial Courts Act envisaged the setting up of special commercial courts to adjudicate commercial disputes in a time bound manner. Consequently, civil cases in relation to commercial disputes and claims above a certain specified value (originally INR 10 million, but reduced in 2018 to INR 0.3 million), which w o u l d h a v e b e e n o t h e r w i s e adjudicated by an ordinary court, now fall under the jurisdiction of the C o m m e r c i a l C o u r t a n d t h e Commercial Division of High Court, respectively. Appeals arising out of su c h d isp u te s l ie b e fo r e th e Commercial Appellate Division of the High Court.Pursuant to amendments made in 2018, commercial courts are being established at the district level even in territories where the State High Court exercises original jurisdiction (where the relevant High Court would have a Commercial Division). |
60 | Commercial Courts:The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 which was amended in 2018 to be called the Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act”), came into force on October 23, 2015 ( coincidentally, with the 2015 amendments to the Arbitration & Conciliation Act, 1996). Specialized commercial courts and divisions were set up for expeditious resolution of the growing number of commercial cases, pursuant to the Government’sstated intent to improve India’s ability to enforce contracts. The Commercial Courts Act envisaged the setting up of special commercial courts to adjudicate commercial disputes in a time bound manner. Consequently, civil cases in relation to commercial disputes and claims above a certain specified value (originally INR 10 million, but reduced in 2018 to INR 0.3 million), which w o u l d h a v e b e e n o t h e r w i s e adjudicated by an ordinary court, now fall under the jurisdiction of the C o m m e r c i a l C o u r t a n d t h e Commercial Division of High Court, respectively. Appeals arising out of su c h d isp u te s l ie b e fo r e th e Commercial Appellate Division of the High Court.Pursuant to amendments made in 2018, commercial courts are being established at the district level even in territories where the State High Court exercises original jurisdiction (where the relevant High Court would have a Commercial Division). |
61 | The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 which was amended in 2018 to be called the Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act”), came into force on October 23, 2015 ( coincidentally, with the 2015 amendments to the Arbitration & Conciliation Act, 1996). Specialized commercial courts and divisions were set up for expeditious resolution of the growing number of commercial cases, pursuant to the Government’sstated intent to improve India’s ability to enforce contracts. The Commercial Courts Act envisaged the setting up of special commercial courts to adjudicate commercial disputes in a time bound manner. Consequently, civil cases in relation to commercial disputes and claims above a certain specified value (originally INR 10 million, but reduced in 2018 to INR 0.3 million), which w o u l d h a v e b e e n o t h e r w i s e adjudicated by an ordinary court, now fall under the jurisdiction of the C o m m e r c i a l C o u r t a n d t h e Commercial Division of High Court, respectively. Appeals arising out of su c h d isp u te s l ie b e fo r e th e Commercial Appellate Division of the High Court.Pursuant to amendments made in 2018, commercial courts are being established at the district level even in territories where the State High Court exercises original jurisdiction (where the relevant High Court would have a Commercial Division). |
62 | stated intent to improve India’s ability to enforce contracts. The Commercial Courts Act envisaged the setting up of special commercial courts to adjudicate commercial disputes in a time bound manner. Consequently, civil cases in relation to commercial disputes and claims above a certain specified value (originally INR 10 million, but reduced in 2018 to INR 0.3 million), which w o u l d h a v e b e e n o t h e r w i s e adjudicated by an ordinary court, now fall under the jurisdiction of the C o m m e r c i a l C o u r t a n d t h e Commercial Division of High Court, respectively. Appeals arising out of su c h d isp u te s l ie b e fo r e th e Commercial Appellate Division of the High Court.Pursuant to amendments made in 2018, commercial courts are being established at the district level even in territories where the State High Court exercises original jurisdiction (where the relevant High Court would have a Commercial Division).Structure of Legal Profession |
63 | Structure of Legal ProfessionThe Bar is unified and qualified lawyers enrolled with any State Bar Council can appear before any Indian court. However, in order to represent and appear for a party in any legal proceeding before a District Court, High Court, or the SupremeCourt, an advocate, or law firm must be registered with the concerned State Bar Council.An advocate of at least 10 years standing may be designated a “Senior Advocate”16.by the Supreme Court or the High Court with which he is registered if, in the opinion of the Supreme Court or that High Court the advocate possesses expertise and character befitting the status. Such a designated Senior Advocate plays a role quite similar to that of a Queen’s Counsel. |
64 | by the Supreme Court or the High Court with which he is registered if, in the opinion of the Supreme Court or that High Court the advocate possesses expertise and character befitting the status. Such a designated Senior Advocate plays a role quite similar to that of a Queen’s Counsel.The distinction between ‘solicitors’ and ‘advocates’ was removed in 1976 . Nevertheless, the Bombay Incorporated Law Society, under the aegis of the Bombay High Court, conducts the qualification examination for solicitors. Solicitors have the same right of audience as advocates. |
65 | by the Supreme Court or the High Court with which he is registered if, in the opinion of the Supreme Court or that High Court the advocate possesses expertise and character befitting the status. Such a designated Senior Advocate plays a role quite similar to that of a Queen’s Counsel.The distinction between ‘solicitors’ and ‘advocates’ was removed in 1976 . Nevertheless, the Bombay Incorporated Law Society, under the aegis of the Bombay High Court, conducts the qualification examination for solicitors. Solicitors have the same right of audience as advocates.Under Indian law, specifically, the Advocates Act, 1961, only qualified advocates enrolled with the Bar Council of India are permitted to practice law in India. Insofar as foreign lawyers are concerned, given the rise in the number of international commercial arbitrations involving foreign parties, the Supreme Court of India in Bar Council of India v. A K Balaji & Ors. (2018) 5 SCC 379 held that foreign lawyers are entitled to give legal advice on foreign law involving diverse international legal issues on ‘casual’ visits to India. This was on the basis that such casual visits would not amount to the ‘practice of law’, which would include appearances in courts, giving of opinions, drafting of instruments and participation in conferences involving legal discussion. R e c o g n i s in g t h a t in t e r n a t io n a l |
66 | by the Supreme Court or the High Court with which he is registered if, in the opinion of the Supreme Court or that High Court the advocate possesses expertise and character befitting the status. Such a designated Senior Advocate plays a role quite similar to that of a Queen’s Counsel.The distinction between ‘solicitors’ and ‘advocates’ was removed in 1976 . Nevertheless, the Bombay Incorporated Law Society, under the aegis of the Bombay High Court, conducts the qualification examination for solicitors. Solicitors have the same right of audience as advocates.Under Indian law, specifically, the Advocates Act, 1961, only qualified advocates enrolled with the Bar Council of India are permitted to practice law in India. Insofar as foreign lawyers are concerned, given the rise in the number of international commercial arbitrations involving foreign parties, the Supreme Court of India in Bar Council of India v. A K Balaji & Ors. (2018) 5 SCC 379 held that foreign lawyers are entitled to give legal advice on foreign law involving diverse international legal issues on ‘casual’ visits to India. This was on the basis that such casual visits would not amount to the ‘practice of law’, which would include appearances in courts, giving of opinions, drafting of instruments and participation in conferences involving legal discussion. R e c o g n i s in g t h a t in t e r n a t io n a larbitration would lend itself to such casual visits, the Apex Court noted that foreign lawyers could fly in and fly out to conduct arbitration proceedings, however, they will be governed by the code of conduct applicable to the legal profession in India, and the Bar Council or Union of India are at liberty to frame rules. |
67 | by the Supreme Court or the High Court with which he is registered if, in the opinion of the Supreme Court or that High Court the advocate possesses expertise and character befitting the status. Such a designated Senior Advocate plays a role quite similar to that of a Queen’s Counsel.The distinction between ‘solicitors’ and ‘advocates’ was removed in 1976 . Nevertheless, the Bombay Incorporated Law Society, under the aegis of the Bombay High Court, conducts the qualification examination for solicitors. Solicitors have the same right of audience as advocates.Under Indian law, specifically, the Advocates Act, 1961, only qualified advocates enrolled with the Bar Council of India are permitted to practice law in India. Insofar as foreign lawyers are concerned, given the rise in the number of international commercial arbitrations involving foreign parties, the Supreme Court of India in Bar Council of India v. A K Balaji & Ors. (2018) 5 SCC 379 held that foreign lawyers are entitled to give legal advice on foreign law involving diverse international legal issues on ‘casual’ visits to India. This was on the basis that such casual visits would not amount to the ‘practice of law’, which would include appearances in courts, giving of opinions, drafting of instruments and participation in conferences involving legal discussion. R e c o g n i s in g t h a t in t e r n a t io n a larbitration would lend itself to such casual visits, the Apex Court noted that foreign lawyers could fly in and fly out to conduct arbitration proceedings, however, they will be governed by the code of conduct applicable to the legal profession in India, and the Bar Council or Union of India are at liberty to frame rules.Building on this judgment, on March 10, 2023 the Bar Council of India (BCI) notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, regulating the entry of foreign lawyers and foreign law firms in India on a reciprocal basis. Foreign lawyers or firms can continue to practice law on a ‘fly in fly out’ basis to provide legal advice “regarding foreign law and on diverse international legal issues” and if: (i) the advice is procured by the client in a foreign country; (ii) the foreign lawyer or firm does not maintain an oÆce in India; and (iii) the practice in India does not cumulatively exceed 60 days in any period of 12 months. |
68 | The distinction between ‘solicitors’ and ‘advocates’ was removed in 1976 . Nevertheless, the Bombay Incorporated Law Society, under the aegis of the Bombay High Court, conducts the qualification examination for solicitors. Solicitors have the same right of audience as advocates.Under Indian law, specifically, the Advocates Act, 1961, only qualified advocates enrolled with the Bar Council of India are permitted to practice law in India. Insofar as foreign lawyers are concerned, given the rise in the number of international commercial arbitrations involving foreign parties, the Supreme Court of India in Bar Council of India v. A K Balaji & Ors. (2018) 5 SCC 379 held that foreign lawyers are entitled to give legal advice on foreign law involving diverse international legal issues on ‘casual’ visits to India. This was on the basis that such casual visits would not amount to the ‘practice of law’, which would include appearances in courts, giving of opinions, drafting of instruments and participation in conferences involving legal discussion. R e c o g n i s in g t h a t in t e r n a t io n a larbitration would lend itself to such casual visits, the Apex Court noted that foreign lawyers could fly in and fly out to conduct arbitration proceedings, however, they will be governed by the code of conduct applicable to the legal profession in India, and the Bar Council or Union of India are at liberty to frame rules.Building on this judgment, on March 10, 2023 the Bar Council of India (BCI) notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, regulating the entry of foreign lawyers and foreign law firms in India on a reciprocal basis. Foreign lawyers or firms can continue to practice law on a ‘fly in fly out’ basis to provide legal advice “regarding foreign law and on diverse international legal issues” and if: (i) the advice is procured by the client in a foreign country; (ii) the foreign lawyer or firm does not maintain an oÆce in India; and (iii) the practice in India does not cumulatively exceed 60 days in any period of 12 months.A foreign lawyer or firm can practice law in India in non-litigious matters only, subject to exceptions laid down in the Rules. Foreign lawyers will be permitted to r e p r e s e n t fo r e ig n p a r t ie s in international commercial arbitrations, but not in domestic arbitrations or litigations before any Indian court or tribunal. |
69 | Under Indian law, specifically, the Advocates Act, 1961, only qualified advocates enrolled with the Bar Council of India are permitted to practice law in India. Insofar as foreign lawyers are concerned, given the rise in the number of international commercial arbitrations involving foreign parties, the Supreme Court of India in Bar Council of India v. A K Balaji & Ors. (2018) 5 SCC 379 held that foreign lawyers are entitled to give legal advice on foreign law involving diverse international legal issues on ‘casual’ visits to India. This was on the basis that such casual visits would not amount to the ‘practice of law’, which would include appearances in courts, giving of opinions, drafting of instruments and participation in conferences involving legal discussion. R e c o g n i s in g t h a t in t e r n a t io n a larbitration would lend itself to such casual visits, the Apex Court noted that foreign lawyers could fly in and fly out to conduct arbitration proceedings, however, they will be governed by the code of conduct applicable to the legal profession in India, and the Bar Council or Union of India are at liberty to frame rules.Building on this judgment, on March 10, 2023 the Bar Council of India (BCI) notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, regulating the entry of foreign lawyers and foreign law firms in India on a reciprocal basis. Foreign lawyers or firms can continue to practice law on a ‘fly in fly out’ basis to provide legal advice “regarding foreign law and on diverse international legal issues” and if: (i) the advice is procured by the client in a foreign country; (ii) the foreign lawyer or firm does not maintain an oÆce in India; and (iii) the practice in India does not cumulatively exceed 60 days in any period of 12 months.A foreign lawyer or firm can practice law in India in non-litigious matters only, subject to exceptions laid down in the Rules. Foreign lawyers will be permitted to r e p r e s e n t fo r e ig n p a r t ie s in international commercial arbitrations, but not in domestic arbitrations or litigations before any Indian court or tribunal. |
70 | arbitration would lend itself to such casual visits, the Apex Court noted that foreign lawyers could fly in and fly out to conduct arbitration proceedings, however, they will be governed by the code of conduct applicable to the legal profession in India, and the Bar Council or Union of India are at liberty to frame rules.Building on this judgment, on March 10, 2023 the Bar Council of India (BCI) notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, regulating the entry of foreign lawyers and foreign law firms in India on a reciprocal basis. Foreign lawyers or firms can continue to practice law on a ‘fly in fly out’ basis to provide legal advice “regarding foreign law and on diverse international legal issues” and if: (i) the advice is procured by the client in a foreign country; (ii) the foreign lawyer or firm does not maintain an oÆce in India; and (iii) the practice in India does not cumulatively exceed 60 days in any period of 12 months.A foreign lawyer or firm can practice law in India in non-litigious matters only, subject to exceptions laid down in the Rules. Foreign lawyers will be permitted to r e p r e s e n t fo r e ig n p a r t ie s in international commercial arbitrations, but not in domestic arbitrations or litigations before any Indian court or tribunal. |
71 | Building on this judgment, on March 10, 2023 the Bar Council of India (BCI) notified the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, regulating the entry of foreign lawyers and foreign law firms in India on a reciprocal basis. Foreign lawyers or firms can continue to practice law on a ‘fly in fly out’ basis to provide legal advice “regarding foreign law and on diverse international legal issues” and if: (i) the advice is procured by the client in a foreign country; (ii) the foreign lawyer or firm does not maintain an oÆce in India; and (iii) the practice in India does not cumulatively exceed 60 days in any period of 12 months.A foreign lawyer or firm can practice law in India in non-litigious matters only, subject to exceptions laid down in the Rules. Foreign lawyers will be permitted to r e p r e s e n t fo r e ig n p a r t ie s in international commercial arbitrations, but not in domestic arbitrations or litigations before any Indian court or tribunal. |
72 | A foreign lawyer or firm can practice law in India in non-litigious matters only, subject to exceptions laid down in the Rules. Foreign lawyers will be permitted to r e p r e s e n t fo r e ig n p a r t ie s in international commercial arbitrations, but not in domestic arbitrations or litigations before any Indian court or tribunal.17..Appointment of Judges |
73 | Appointment of JudgesOnly an Indian citizen may be appointed a s a m e m b e r o f t h e j u d i c i a r y . Appointments to the lower judiciary must qualify by clearing the Civil Services (Judicial) Exam conducted by the Union Public Service Commission. A citizen, having held judicial oÆce for at least 10 years, or an advocate, registered as an advocate of a High Court (or of two or more High Courts in succession) for more than 10 years may be appointed as a Judge of a High Court. To be appointed a judge of the Supreme Court, the citizen must have served as a judge of a High Court (or of two or more High Courts in succession) for more than five years, or have practised as an advocate of a High Court (or of two or more High Courts in |
74 | Appointment of JudgesOnly an Indian citizen may be appointed a s a m e m b e r o f t h e j u d i c i a r y . Appointments to the lower judiciary must qualify by clearing the Civil Services (Judicial) Exam conducted by the Union Public Service Commission. A citizen, having held judicial oÆce for at least 10 years, or an advocate, registered as an advocate of a High Court (or of two or more High Courts in succession) for more than 10 years may be appointed as a Judge of a High Court. To be appointed a judge of the Supreme Court, the citizen must have served as a judge of a High Court (or of two or more High Courts in succession) for more than five years, or have practised as an advocate of a High Court (or of two or more High Courts insuccession) for more than ten years, or must, in the opinion of the President of India, be a distinguished jurist. The age of retirement of a High Court judge, is 62 years, while a Supreme Court judge is required to retire at the age of 65 years. There have been proposals to increase the retirement age, but these have not yet been put through. |
75 | Only an Indian citizen may be appointed a s a m e m b e r o f t h e j u d i c i a r y . Appointments to the lower judiciary must qualify by clearing the Civil Services (Judicial) Exam conducted by the Union Public Service Commission. A citizen, having held judicial oÆce for at least 10 years, or an advocate, registered as an advocate of a High Court (or of two or more High Courts in succession) for more than 10 years may be appointed as a Judge of a High Court. To be appointed a judge of the Supreme Court, the citizen must have served as a judge of a High Court (or of two or more High Courts in succession) for more than five years, or have practised as an advocate of a High Court (or of two or more High Courts insuccession) for more than ten years, or must, in the opinion of the President of India, be a distinguished jurist. The age of retirement of a High Court judge, is 62 years, while a Supreme Court judge is required to retire at the age of 65 years. There have been proposals to increase the retirement age, but these have not yet been put through. |
76 | Only an Indian citizen may be appointed a s a m e m b e r o f t h e j u d i c i a r y . Appointments to the lower judiciary must qualify by clearing the Civil Services (Judicial) Exam conducted by the Union Public Service Commission. A citizen, having held judicial oÆce for at least 10 years, or an advocate, registered as an advocate of a High Court (or of two or more High Courts in succession) for more than 10 years may be appointed as a Judge of a High Court. To be appointed a judge of the Supreme Court, the citizen must have served as a judge of a High Court (or of two or more High Courts in succession) for more than five years, or have practised as an advocate of a High Court (or of two or more High Courts insuccession) for more than ten years, or must, in the opinion of the President of India, be a distinguished jurist. The age of retirement of a High Court judge, is 62 years, while a Supreme Court judge is required to retire at the age of 65 years. There have been proposals to increase the retirement age, but these have not yet been put through. |
77 | Only an Indian citizen may be appointed a s a m e m b e r o f t h e j u d i c i a r y . Appointments to the lower judiciary must qualify by clearing the Civil Services (Judicial) Exam conducted by the Union Public Service Commission. A citizen, having held judicial oÆce for at least 10 years, or an advocate, registered as an advocate of a High Court (or of two or more High Courts in succession) for more than 10 years may be appointed as a Judge of a High Court. To be appointed a judge of the Supreme Court, the citizen must have served as a judge of a High Court (or of two or more High Courts in succession) for more than five years, or have practised as an advocate of a High Court (or of two or more High Courts insuccession) for more than ten years, or must, in the opinion of the President of India, be a distinguished jurist. The age of retirement of a High Court judge, is 62 years, while a Supreme Court judge is required to retire at the age of 65 years. There have been proposals to increase the retirement age, but these have not yet been put through. |
78 | succession) for more than ten years, or must, in the opinion of the President of India, be a distinguished jurist. The age of retirement of a High Court judge, is 62 years, while a Supreme Court judge is required to retire at the age of 65 years. There have been proposals to increase the retirement age, but these have not yet been put through.Jurisdiction of CourtsJurisdiction of Indian courts is limited by territory, pecuniary value of the claim / dispute and / or subject matter. A court would have territorial jurisdiction over a dispute if the defendant habitually resides, carries on business, or works for gain within its territory, or, if the cause of action arose, or immoveable property which is the subject matter of the claim lies, within the territorial limits of such court.The pecuniary jurisdiction of courts is determined by the relevant State in which |
79 | Jurisdiction of Indian courts is limited by territory, pecuniary value of the claim / dispute and / or subject matter. A court would have territorial jurisdiction over a dispute if the defendant habitually resides, carries on business, or works for gain within its territory, or, if the cause of action arose, or immoveable property which is the subject matter of the claim lies, within the territorial limits of such court.The pecuniary jurisdiction of courts is determined by the relevant State in whichthe court is situated. The valuation of a plaintiff’s claim ( and defendant’s counter-claim, if any), determines which court would have pecuniary jurisdiction over the case.Subject matter also plays a part, and exclusive jurisdiction may be statutorily conferred upon certain courts or tribunals, to the exclusion of regular civil courts and/ or arbitral tribunals 2 , depending on the type of claims or dispute (as more particularly explained below). |
80 | 2 See Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1.18.Exclusive Jurisdiction ClausesIndian courts recognize the contractual right of parties to stipulate exclusive jurisdiction provisions in their contracts. Most of the judicial pronouncements on jurisdiction clauses relate to exclusive jurisdiction of one Indian court over others and these stipulations have been uniformly enforced subject to the exception that parties, by contract, cannot confer jurisdiction upon a court which would ordinarily not have jurisdiction under Indian law. This does not apply to arbitration clauses, where the seat of the arbitration, though not otherwise having any connection to the parties or subject matter, would nevertheless confer jurisdiction upon the courts of the seat.However, in relation to provisions conferring exclusive jurisdiction on |
81 | Indian courts recognize the contractual right of parties to stipulate exclusive jurisdiction provisions in their contracts. Most of the judicial pronouncements on jurisdiction clauses relate to exclusive jurisdiction of one Indian court over others and these stipulations have been uniformly enforced subject to the exception that parties, by contract, cannot confer jurisdiction upon a court which would ordinarily not have jurisdiction under Indian law. This does not apply to arbitration clauses, where the seat of the arbitration, though not otherwise having any connection to the parties or subject matter, would nevertheless confer jurisdiction upon the courts of the seat.However, in relation to provisions conferring exclusive jurisdiction onforeign courts, while the principle is recognised, Indian courts may refuse to give up jurisdiction on the grounds of forum non conveniens, balance of convenience, the interests of justice andGoverning Law Clauses |
82 | Governing Law ClausesParties are free to choose a foreign law to govern their relationship, where at least one party is a foreign party. In such cases, Indian courts will apply the law chosen by the parties to such a contract, subject to the foreign law being pleaded and proved as a fact (including through expert evidence, if required). If not so proved, it will be assumed that the legal position under the foreign law is the same as that existing under Indian law.Insofar as governing law is concerned in a contract between Indian parties where there is no foreign element, while there is no specific case law on the issue, it is possible that should the parties for some reason decide to subject the contract to foreign law, an argument may be taken that such contracting out of Indian law would be contrary to public policy.19..Court Fees |
83 | Court FeesCourt fees are payable by a plaintiff at the time of filing a suit, under the Court Fees Act, 1870, although some States have their respective State Acts and the court fees vary from State to State. The Court fees may be capped at a maximum amount (for example, Court fees in the Bombay High Court are a maximum of INR0.3 million), or may be ad valorem, without a cap, (for example, the Delhi High Court levies court fees on an ad valorem basis depending on the value of the claim). Court fees may also be paid for filing other applications or petitions, which are at a capped fixed fee.Period of Limitation |
84 | Period of LimitationThe Limitation Act, 1963, prescribes the time limit within which an aggrieved person can approach a court for redressal. The period of limitation is computed from the date of accrual of the cause of action, or in the case of a continuing cause of action, from each such day on which it accrues. Limitation for civil actions and suits for which no period of limitation is prescribed is generally 3 years. Limitation for claims on tortuous liability is generally 1 year. Limitation for suits to recover possession of immovable property is 12 years. Limitation for execution of a decree is also 12 years. Limitation for suits by, or on behalf of the government is 30 years. Limitation for filing an appeal varies between 30 days to 90 days.Limitation may be extended under certain circumstances, for instance, where there has been a part-payment or acknowledgment in writing of a debt |
85 | The Limitation Act, 1963, prescribes the time limit within which an aggrieved person can approach a court for redressal. The period of limitation is computed from the date of accrual of the cause of action, or in the case of a continuing cause of action, from each such day on which it accrues. Limitation for civil actions and suits for which no period of limitation is prescribed is generally 3 years. Limitation for claims on tortuous liability is generally 1 year. Limitation for suits to recover possession of immovable property is 12 years. Limitation for execution of a decree is also 12 years. Limitation for suits by, or on behalf of the government is 30 years. Limitation for filing an appeal varies between 30 days to 90 days.Limitation may be extended under certain circumstances, for instance, where there has been a part-payment or acknowledgment in writing of a debtbefore the expiry of the prescribed period of limitation, or where a party has wrongly (but bona fide), pursued an action in a court which does not have jurisdiction. |
86 | The Limitation Act, 1963, prescribes the time limit within which an aggrieved person can approach a court for redressal. The period of limitation is computed from the date of accrual of the cause of action, or in the case of a continuing cause of action, from each such day on which it accrues. Limitation for civil actions and suits for which no period of limitation is prescribed is generally 3 years. Limitation for claims on tortuous liability is generally 1 year. Limitation for suits to recover possession of immovable property is 12 years. Limitation for execution of a decree is also 12 years. Limitation for suits by, or on behalf of the government is 30 years. Limitation for filing an appeal varies between 30 days to 90 days.Limitation may be extended under certain circumstances, for instance, where there has been a part-payment or acknowledgment in writing of a debtbefore the expiry of the prescribed period of limitation, or where a party has wrongly (but bona fide), pursued an action in a court which does not have jurisdiction.Courts do not have the power to extend the period of limitation; a suit filed after its expiration is bound to be dismissed even if limitation has not been taken up as a defence. A court may however, under certain limited circumstances, condone delay in filing appeals. |
87 | The Limitation Act, 1963, prescribes the time limit within which an aggrieved person can approach a court for redressal. The period of limitation is computed from the date of accrual of the cause of action, or in the case of a continuing cause of action, from each such day on which it accrues. Limitation for civil actions and suits for which no period of limitation is prescribed is generally 3 years. Limitation for claims on tortuous liability is generally 1 year. Limitation for suits to recover possession of immovable property is 12 years. Limitation for execution of a decree is also 12 years. Limitation for suits by, or on behalf of the government is 30 years. Limitation for filing an appeal varies between 30 days to 90 days.Limitation may be extended under certain circumstances, for instance, where there has been a part-payment or acknowledgment in writing of a debtbefore the expiry of the prescribed period of limitation, or where a party has wrongly (but bona fide), pursued an action in a court which does not have jurisdiction.Courts do not have the power to extend the period of limitation; a suit filed after its expiration is bound to be dismissed even if limitation has not been taken up as a defence. A court may however, under certain limited circumstances, condone delay in filing appeals.In light of the spread of the Covid-19 pandemic, the Supreme Court in exercise of its powers under Article 142 of the Constitution suspended the period of limitation for all claims for nearly 24 months, thereby permitting such claims to be brought even after the strict period of limitation had lapsed, subject to certain rules for the calculation of such limitation. |
88 | Limitation may be extended under certain circumstances, for instance, where there has been a part-payment or acknowledgment in writing of a debtbefore the expiry of the prescribed period of limitation, or where a party has wrongly (but bona fide), pursued an action in a court which does not have jurisdiction.Courts do not have the power to extend the period of limitation; a suit filed after its expiration is bound to be dismissed even if limitation has not been taken up as a defence. A court may however, under certain limited circumstances, condone delay in filing appeals.In light of the spread of the Covid-19 pandemic, the Supreme Court in exercise of its powers under Article 142 of the Constitution suspended the period of limitation for all claims for nearly 24 months, thereby permitting such claims to be brought even after the strict period of limitation had lapsed, subject to certain rules for the calculation of such limitation.20.Civil Proceedings against the State |
89 | Civil Proceedings against the StateThe State is not immune and cannot claim immunity from civil proceedings, except in respect of certain sovereign functions. Prior to initiating any suit in respect of an oÆcial act against the Government of India, or any State, or a public oÆcer, at least two month’s advance written notice must be issued with the intention to file a suit, with suÆcient details of the dispute and claim. Where there is a need for urgent relief, the suit may be instituted without the full two months’ notice, with the leave of the Court, but no relief shall be granted unless a reasonableopportunity has been given to the defendant to show cause in respect of the relief prayed for.Public sector undertakings (including Government controlled, or owned corporations) are distinct from the Government and suits may be instituted against such undertakings without prior notice. |
90 | The State is not immune and cannot claim immunity from civil proceedings, except in respect of certain sovereign functions. Prior to initiating any suit in respect of an oÆcial act against the Government of India, or any State, or a public oÆcer, at least two month’s advance written notice must be issued with the intention to file a suit, with suÆcient details of the dispute and claim. Where there is a need for urgent relief, the suit may be instituted without the full two months’ notice, with the leave of the Court, but no relief shall be granted unless a reasonableopportunity has been given to the defendant to show cause in respect of the relief prayed for.Public sector undertakings (including Government controlled, or owned corporations) are distinct from the Government and suits may be instituted against such undertakings without prior notice.Specific statutory functionaries may be granted immunity from civil proceedings in respect of oÆcial acts undertaken by them. |
91 | Specific statutory functionaries may be granted immunity from civil proceedings in respect of oÆcial acts undertaken by them.Civil Proceedings against a Foreign StateW r i t t e n c o n s e n t o f t h e I n d i a n G o v e r n m e n t i s r e q u i r e d b e f o r e instituting civil proceedings against a foreign state, which consent will be withheld unless the foreign state has subjected itself to the jurisdiction of an Indian court. Such submission to jurisdiction may be by instituting proceedings in the Indian court against the person requesting consent to sue, or the foreign state trading within the court’s jurisdiction or, holding immovable property within the court’s jurisdiction, and the consent to sue is requested with |
92 | Civil Proceedings against a Foreign StateW r i t t e n c o n s e n t o f t h e I n d i a n G o v e r n m e n t i s r e q u i r e d b e f o r e instituting civil proceedings against a foreign state, which consent will be withheld unless the foreign state has subjected itself to the jurisdiction of an Indian court. Such submission to jurisdiction may be by instituting proceedings in the Indian court against the person requesting consent to sue, or the foreign state trading within the court’s jurisdiction or, holding immovable property within the court’s jurisdiction, and the consent to sue is requested withreference to such trade, or property. Consent may also be granted if the foreign state has, impliedly, or expressly waived immunity. However, as an exception to this rule, consent of the Government is not required where a tenant of immovable property sues a Foreign State from whom he holds or claims to hold the property. |
93 | W r i t t e n c o n s e n t o f t h e I n d i a n G o v e r n m e n t i s r e q u i r e d b e f o r e instituting civil proceedings against a foreign state, which consent will be withheld unless the foreign state has subjected itself to the jurisdiction of an Indian court. Such submission to jurisdiction may be by instituting proceedings in the Indian court against the person requesting consent to sue, or the foreign state trading within the court’s jurisdiction or, holding immovable property within the court’s jurisdiction, and the consent to sue is requested withreference to such trade, or property. Consent may also be granted if the foreign state has, impliedly, or expressly waived immunity. However, as an exception to this rule, consent of the Government is not required where a tenant of immovable property sues a Foreign State from whom he holds or claims to hold the property.No decree can be executed against the property of any Foreign State except with the consent of the Government of India, certified in writing by a Secretary to that Government. |
94 | W r i t t e n c o n s e n t o f t h e I n d i a n G o v e r n m e n t i s r e q u i r e d b e f o r e instituting civil proceedings against a foreign state, which consent will be withheld unless the foreign state has subjected itself to the jurisdiction of an Indian court. Such submission to jurisdiction may be by instituting proceedings in the Indian court against the person requesting consent to sue, or the foreign state trading within the court’s jurisdiction or, holding immovable property within the court’s jurisdiction, and the consent to sue is requested withreference to such trade, or property. Consent may also be granted if the foreign state has, impliedly, or expressly waived immunity. However, as an exception to this rule, consent of the Government is not required where a tenant of immovable property sues a Foreign State from whom he holds or claims to hold the property.No decree can be executed against the property of any Foreign State except with the consent of the Government of India, certified in writing by a Secretary to that Government. |
95 | W r i t t e n c o n s e n t o f t h e I n d i a n G o v e r n m e n t i s r e q u i r e d b e f o r e instituting civil proceedings against a foreign state, which consent will be withheld unless the foreign state has subjected itself to the jurisdiction of an Indian court. Such submission to jurisdiction may be by instituting proceedings in the Indian court against the person requesting consent to sue, or the foreign state trading within the court’s jurisdiction or, holding immovable property within the court’s jurisdiction, and the consent to sue is requested withreference to such trade, or property. Consent may also be granted if the foreign state has, impliedly, or expressly waived immunity. However, as an exception to this rule, consent of the Government is not required where a tenant of immovable property sues a Foreign State from whom he holds or claims to hold the property.No decree can be executed against the property of any Foreign State except with the consent of the Government of India, certified in writing by a Secretary to that Government. |
96 | reference to such trade, or property. Consent may also be granted if the foreign state has, impliedly, or expressly waived immunity. However, as an exception to this rule, consent of the Government is not required where a tenant of immovable property sues a Foreign State from whom he holds or claims to hold the property.No decree can be executed against the property of any Foreign State except with the consent of the Government of India, certified in writing by a Secretary to that Government.21..Suits by Foreign Entities and Foreign StatesA foreign entity, being an ‘alien friend’, or an ‘alien enemy residing in India with the permission of the Central Government’ may institute civil proceedings in Indian courts as if they were citizens of India. An alien enemy is a person residing in a foreign country whose government is at war with India and who carries on business in such country without a licence in that behalf granted by the Government of India. An alien enemy |
97 | Suits by Foreign Entities and Foreign StatesA foreign entity, being an ‘alien friend’, or an ‘alien enemy residing in India with the permission of the Central Government’ may institute civil proceedings in Indian courts as if they were citizens of India. An alien enemy is a person residing in a foreign country whose government is at war with India and who carries on business in such country without a licence in that behalf granted by the Government of India. An alien enemyresiding in India without the permission of the Government of India or residing in a foreign country but not holding the requisite license, cannot institute civil proceedings in India.A Foreign State may sue in any competent Indian Court provided that the object of the suit is to enforce a private right vested in the ruler of such Foreign State or in any oÆcer of such Foreign State in his public capacity.Institution of Civil Proceedings (Civil Courts) |
98 | Institution of Civil Proceedings (Civil Courts)A suit is commenced by the filing of a plaint, which must contain the following particulars:name of the court;name, description and place of residence of the plaintiff(s) and the defendant(s);the cause of action;the facts showing that the court has jurisdiction;the facts showing that the suit is filed within the period of limitation;the relief claimed;where the plaintiff has allowed a set- off, or relinquished a portion of the claim, the amounts so allowed, or relinquished;a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees; andThe plaint should have annexed to it a list of documents referred to and/or relied upon by the plaintiff, which are relevant to the dispute and the claim.22. |
99 | A suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of their claim, they are precluded from afterwards suing in respect thereof (unless they have obtained leave of the court for the purpose). The plaint must be supported by an aÆdavit deposed by the plaintiff verifying the correctness of facts.Once the suit is filed, the court issues a writ of summons (accompanied by the plaint), to the defendant calling upon them to appear and answer the claim of the plaintiff by filing their statement of defence ( written statement). The defendant must appear (either through legal representation or in person), on the date stipulated in the summons, and must file a written statement within 30 days from the date of service of summons extendable to 90 days. Pleadings may be amended with the leave of the court.Procedure |
100 | ProcedureDisclosure: At a preliminary hearing the court issues directions in relation to d isc lo s u r e u n d e r o a th , o f documents referred to and relied upon. The counterparty is entitled to take inspection of the documents disclosed. If a party’s disclosure is inadequate, or the party does not provide inspection, the other party has the right to request the court to direct disclosure, or inspection. A party also has the right to request the court for directions against the other party to provide particulars, or to answer interrogatories. A court may non-suit a plaintiff, or strike-out the defence of a defendant who has failed to comply with an order for discovery, o r i n s p e c t i o n , o r t o a n s w e r interrogatories.Framing of issues: On completion of disclosure, the court, in consultation with the parties, frames issues for determination in the suit.23.. |
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