India and the UK exhibit convergence in adopting technology for legal processes but diverge on judicial appointment procedures and legal traditions. While both emphasize fairness and justice, the nations differ in legal systems, with India following a mix of common law and civil law, while the UK adheres to common law principles.
UPSC Mains General Studies Paper – 2 Mains 2020
UPSC Mains Civil Services IAS Exam Question Paper – 2020
Tags: Comparison of the Indian Constitutional Scheme with that of Other Countries. Structure, Organization and Functioning of the Executive and the Judiciary.
Approach
- In Introduction, bring about the general cause of comparable judicial systems.
- In Body,
- The points of convergence in the judicial systems.
- The points of divergence in the judicial systems.
- In Conclusion, write about the significance of such judicial systems.
Answer
The idea of convergence is the method of getting together from different directions so as to ultimately produce a common conclusion. Both India and the United Kingdom are democratic countries with parliamentary form of government. Besides, there are differences as well as similarities on how the Executive, Legislature and Judiciary of these countries function.The Indian Judicial System has its origin in the ‘Mayors Courts’ established by the East India Company in 1726. The judicial systems developed imbibing the features like rule of law, and recording judicial precedents.
Convergence in Judicial Practices
- Independence of Judiciary: In Britain as well as in India the judges can only be removed from the office for serious misbehavior and with the consent of both the Houses of Parliament.
- Ultra-vires: Courts in both the UK and in India can declare the action of an executive as ultra-vires i.e. acting or done beyond one’s legal power or authority.
- Interpretation of Constitution: The courts in both India as well as in the UK act as the highest interpreter of the constitution.
- Rule of Law: Both countries follow the principle of Rule of Law, where no individual is granted any special privilege before the court of law and the laws apply equally to all citizens irrespective of their social-economic or other difference i.e., equality before law.
- Writ Petition: Instrument of writ petitions to uphold Rule of Law and that the judiciary of both nations can review the acts of the executives.
Divergence in Judicial Practices
- Sovereignty of Parliament: Under the doctrine of Parliamentary sovereignty, the judiciary in the UK lacks the power to strike down an Act of Parliament. However, in India, the courts have been given this power.
- Basic Structure Doctrine: The courts in India have come up with the Doctrine of Basic Structure, which prevents executive from making laws or amendments which alter or deviate from the basic values enshrined in constitution. The British system lacks the concept of ‘Basic Structure’.
- Unified Three-Tier System: The United Kingdom does not have a single unified legal system, England and Wales have one system, Scotland another, Northern Ireland a third. The Constitution of India has established a unified three-tier system of judiciary, with the Supreme Court at the top.
- Appointment of Judges: In the UK, the Constitutional Reform Act, 2005 has created the Judicial Appointments Commission for appointment of judges. However, in India, the Judges of the Supreme Court, as well as High Courts, are appointed by the President under collegium system.
Conclusion
The convergence of laws, legal processes, and systems is of crucial importance since disorganized fragments of laws and procedures augment uncertainty, interruption, delay, and transaction costs which instill divergence into the judicial system. The British judicial system provided the foundation on which the Indian counterpart was built. But the Indian judiciary has evolved and learnt from the best practices from around the world to safeguard Democracy and Rule of Law.
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