There are two primary legal systems that are widely recognized across the
globe: common law and civil law. They might share some similarities but they
have many significant differences in their place of origin, approach and
implementations of the laws in their respective systems.
The roots of civil law can be traced back to the Roman Empire, and its
principles were eventually formalized in the Napoleonic code. Civil law is based
on the written codes and laws, which are then organized into a system which is
comprehensive and covers all major areas of law. The judges in this system
mainly rely on only the written laws and codes to form their own decisions and
resolve the major disputes of the case. The legislative branch of governments
following civil law systems has powers to create laws.
Common law originated in England and then was majorly developed through various
judicial customs and decisions given in many cases. The common law system is
based on the principle of judicial precedent. In the common law system, the
judge follows the decision prior to the case to ensure consistency in the law's
application. Common law systems are a system which plays greater focus on the
interpretation of the law and court decisions can create new legal principles in
The Indian legal system is a mixture of both civil and common law practices. As
such, in the Indian legal system the process of appeals incorporates elements of
both civil law and common law.
In the Indian legal system appeals are made to higher courts, courts the such as
high courts of the respective state and Supreme court of India on the decision
rendered by lower courts or tribunals, in general the standard view of an appeal
is more deferential to the lower court's decision that means the high court has
the power to overturn and quash the lower court's decision if it is found that
it was clearly erroneous or is a clear error of law.
This paper deals with the analysis of and development of appeals in the Indian
legal system and comparison with the foreign system of civil law systems of
countries like France and evaluates the evolution of appeals in the Indian legal
In this paper, an attempt has been made to underline the importance of appeals
in the Indian legal system with its limitations in respect to CrPC (The Code of
Criminal Procedure, 1973.) and various sections of the constitution.
Appeals In The Legal System
- What is an appeal?
"The complaint to a superior court for an injustice done or error committed
by an inferior one, whose judgment or decision the Court above is called
upon to correct or reverse. It is the removal of a cause from a Court of
inferior jurisdiction to one of superior jurisdiction, for the purpose of
obtaining a review and retrial" . -- Black's law dictionary.
Appeal as a word has not been defined in the Code of Civil Procedure, 1908.
The term appeals mean the examination of a decision of an inferior court by
a higher court.
An Appeal in legal parlance is held to mean the removal of a cause from an
inferior or subordinate to a superior tribunal or forum in order to test and
scrutinize the corrections of impugned decisions.
Appeals are a very major and critical component of any law system. They
establish a mechanism where individuals can challenge decisions made by the
lower court in order to seek redressal for injustices they perceived. The
process of appeals can vary greatly between legal systems in the world. Some
legal systems place more emphasis on the precedent, while other legal
systems put more emphasis on the code which is written of the law which is
more formal than the other.
- Why appeals are necessary:
As mentioned earlier appeals are a fundamental part of any legal system and
they play an important role in delivering fairness and justice to the
citizens of the country. An appeal can be said as a request made by a person
to the higher court to review a decision made by a lower court.
Appeals play a vital role in the legal system, serving a number of crucial
functions that ensure fairness, consistency, and progress in the law.
Appeals provide a fundamental role of correcting errors made by the lower
division courts, They ensure that the legal decisions are based on accurate and
consistent interpretation of law and the litigant's rights are protected.
As human society progresses and changes, so too must our laws. That's where the
concept of appeals comes in. By appealing a decision, a court can take a fresh
look at a case and potentially set a new legal precedent that's more in line
with current needs and values.
Uniformity and consistency of law:
Appeals also help ensure that the law is applied consistently and uniformly
across different cases and jurisdictions. This means that similar cases will be
treated similarly, no matter where they're being heard.
Ensuring the process:
the most important thing is to make sure that everyone involved in a legal case
is treated fairly. That's why appeals are so crucial: they give litigants the
opportunity to challenge decisions that may have violated their rights or been
based on incorrect legal interpretations.
Appeals can provide a sense of closure for legal disputes, allowing all parties
involved to move forward and put the matter behind them. It's a critical part of
any fair and effective legal system.
Civil Law System
- Civil law system origin and functions
The civil law system is a system which originated as a legal tradition with
origin in Roman law, as codified in the Corpus Juris Civilis of Justinian.
The civil law system was subsequently developed in Europe and then followed
around the world. Civil law systems can be broadly classified into two
streams: codified Roman law and uncodified roman law. Codified as seen in
the French civil code of 1804 and uncodified as seen in Scotland and South
Africa. Civil law can be said as a law which is highly systematized and
structured and majorly relies on the declarations of broad, general
principles which are often found to ignore the details.
Countries which are following this system have comprehensive and
continuously updated their legal codes which are capable of being brought in
their courts which consist of the applicable procedure, and the appropriate
punishment for each offense. Codes established in civil law systems are
distinguishable between different categories of law.
The Substantive law which establishes which acts are subject to civil or
criminal prosecution and the other which establishes how to determine which
act will constitute for a criminal act and the penal laws which will
establish the appropriate penalty for the same.
In a civil law system it is said to be the judges role to establish the
facts of the case and then apply the provisions of the applicable code. The
judge strictly works within a framework which is established by the codified
set of law, The judge's decision is less crucial in framing the civil laws
than the decision of the legislature or the law makers such as scholars who
drafted and interpreted the code.
- Appeals in civil law system
An appeal in civil law systems is typically limited to reviewing the legal
issues, and the appellate court does not re-evaluate the facts. Instead of
re-examining the evidence presented at trial, the focus is on ensuring that
the law was applied correctly. In civil law systems, the standard of review
is usually "error of law," which means that the appellate court will
overturn the lower court's decision only if the lower court applied the law
incorrectly. In civil law systems, appeals are often more widely available,
and the process of appealing is often seen as integral to the legal system.
A civil law system usually requires a higher court to hear an appeal, such
as an appellate court or a supreme court, and a de novo standard of review
is applied, meaning the appellate court reviews the case as if it were its
first time. The appeal process usually involves both appellants and
respondents submitting written arguments, followed by an appellate court
hearing in which the parties present their arguments.
The role of the appellate court in civil law systems is generally limited to
reviewing the legal issues in the case and re-evaluating the facts. Rather
than re-examining the evidence presented at trial, the focus is on ensuring
that the law was correctly applied. According to civil law systems, the
standard of review is usually "error of law," which means that the appellate
court will only overturn the lower court's decision if it finds that the
lower court applied the law incorrectly.
- Countries following civil law system
Many countries around the world use civil law as a legal system, including:
- The Netherlands
Further, many countries in Latin America, including Mexico, Brazil, and
Argentina, have adopted civil law systems, as well as some countries in Asia and
Africa, including the Philippines, Vietnam, and Egypt.
As a result of their clear, consistent, and predictable framework for regulating
various aspects of society, such as contracts, property, and family law, civil
law systems are often favoured by countries with strong central governments and
a tradition of codifying laws.
Common Law System
As per, Section 96 Code of Civil Procedure Code.
Appeal from original decree
- Common law system origin and functions
Starting in the 11th century, England developed a legal system based on common
law principles. These principles were typically established through court cases
and judgments, mostly from higher courts, that dealt with specific factual
situations and disputes. As a legal system, common law is known for being highly
detailed in its prescriptions, in contrast to the civil law.
The common law system is primarily based on legal decisions made by judges. One
important aspect of this system is the principle of stare decisis, which means
that courts must follow the precedents set by higher courts. Lower courts may
challenge these precedents through the process of appeals, which plays a central
role in the common law system. Judges in this system have a significant amount
of discretion and are responsible for interpreting the law.
When an appeal is made in a common law system, a higher court will review the
decision of the lower court and examine relevant precedents. While the higher
court may consider new evidence, its main focus is on interpreting the law and
applying precedents. Decisions made by the higher court are often subject to
further appeals, with multiple levels of appeals possible.
- Historical development of common law system.
The common law legal system has its roots in England and has been adopted by
many countries, including the United States, Canada, and most Commonwealth
countries. While the system has evolved over the past 350 years, judges still
play a central role in establishing and developing common law through their
written opinions. These opinions serve as binding precedents for lower courts in
the same jurisdiction. However, common law systems do not rely solely on case
law; democratic countries that follow this system have legislative bodies that
regularly pass new laws.
- Common law system in India
India is one example of a country that has based its present judicial framework
on the common law system, introduced by British rule in the early seventeenth
century. The Crown established a judicial system under its authority in the
three largest and most important towns (Bombay, Madras, and Calcutta) under its
- Appeals in Indian legal system
Under a common law system, appeals are considered by a higher court, such as the
supreme court or court of appeals. On appeal, the standard of review is usually
more deferential to the lower court, meaning that the higher court will only
overturn the lower court's decision if it was clearly erroneous or made an error
of law. The process of appealing a decision usually involves the submission of
written briefs by both parties and oral arguments before the appellate court.
In the legal case Shankar v. Krishnaji it was determined that the right of
appeal allows a party to seek redress from a higher court to correct an error
made by a lower court. The principle of merger of orders, which means that the
decision of the higher court supersedes that of the lower court, applies equally
to appeals and petitions for revision. Therefore, any distinction between these
two types of legal challenges does not affect the principle of merger of orders.
- Save where otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie from every
decree passed by any Court exercising original jurisdiction to the Court
authorized to hear appeals from the decisions of such Court.
- An appeal may lie from an original decree passed ex parte.
- No appeal shall lie from a decree passed by the Court with the consent
- No appeal shall lie, except on a question of law, from a decree in any
suit of the nature cognizable by Courts of Small Causes, when the amount or
value of the subject-matter of the original suit does not exceed [ten
According to Section 96 of the law, appeals can be made against an original
decree. However, if a decree is passed by a court with the consent of both
parties, no appeal can be made. The right to appeal is considered to be an
important one, as both parties have the right to be heard. This right can only
be exercised when it is granted by a statute or by rules that have the force of
law. Therefore, the specific provisions of a law must be followed in order to
ensure that the right of appeal is properly upheld.
Scope of section 96 of CRPC
The law establishes some fundamental guidelines for appealing original decrees,
including the following:
- An appeal can be made even against an ex-parte decree.
- However, no appeal can be made from a consent decree.
- There is no right of appeal from a decree in any suit that can be heard
in a small claims court, except when it involves a question of law and the
original suit's subject matter value exceeds Rs. 3000.
Appeals are possible under section 96 only from a decree, not from a mere
finding. Section 104 of the law governs appeals from orders.
According to a ruling in Zair Hussain Khan V. Khurshed Jan
by the Allahabad High
Court, the right of appeal cannot be assumed in any matter that comes before a
court. This right must be granted by a statute or by a similar authority that
carries the same weight as a statute.
According to the ruling in Anant Mills Co. Ltd. v. State of Gujarat , it is a
firmly established principle that the right to appeal is established by statute
and there is no inherent right to appeal unless it is expressly provided for by
law. The availability of an appeal can vary, as it may either be an absolute
right or subject to the discretion of the court to which the appeal is made.
Common Law System And Civil Law Differences
- Differences in Appeals
When it comes to the appeal process, there are differences between common law
and civil law systems. In common law systems, appeals tend to have a wider
scope, giving the appellate court the power to review both the facts and the law
of the case. In this type of system, the appellate court can take a fresh look
at the evidence and even make its own findings of fact, if necessary.
standard of review in common law systems may vary, but it often includes
examining whether the lower court's decision was based on "clearly erroneous"
findings of fact or an "error of law." The appellate court in a common law
system can either uphold, reverse, or modify the decision of the lower court.
On the other hand, in civil law systems, appeals are usually limited to a review
of the legal issues in the case. The appellate court in a civil law system
typically has a more restricted role in re-evaluating the facts, and focuses
instead on ensuring that the law was applied correctly. The standard of review
in civil law systems is typically "error of law," meaning that the appellate
court will only overturn the decision of the lower court if it finds that the
lower court made an error in applying the law.
It's also worth noting that in common law systems, the right to appeal is often
more restricted, only being available in certain circumstances, such as when
there is a question of law or when there has been a procedural error. In
contrast, in civil law systems, the right to appeal is typically more widely
available, with the process of appeals being seen as a critical part of the
Overall, while there are differences between common law and civil law systems in
terms of the appeal process, both serve important roles in ensuring the fairness
and accuracy of the legal process and in maintaining consistency in the
application of the law.
In common law systems, the right to appeal is more restricted and may only be
granted in specific situations such as when there's a question of law, or when
an error occurred during the proceedings. However, in civil law systems, the
right to appeal is typically more widely available, and appeals are viewed as an
essential part of the legal process.
- Appeals in French common law vs appeal in Indian common law
In India, appeals play a significant role in the legal system by providing a
means of reviewing and rectifying decisions made in lower courts. The appeal
process is regulated by the Code of Civil Procedure and the Code of Criminal
The Indian legal system has two types of appeals, namely first appeals and
second appeals. First appeals are heard by a higher court that is one level
above the court that rendered the original decision. Second appeals, on the
other hand, are heard by either the highest court in the state or the Supreme
Court of India, depending on the nature of the case and the amount of money in
In India, the appeals process is guided by the principle of "substantial
justice," which requires the appellate court to examine whether the lower
court's decision was just and fair, and whether it was in accordance with the
law. The appellate court can review both the facts and the law of the case, and
may affirm, reverse, or modify the lower court's decision.
Similarly, in France, appeals are a crucial aspect of the legal system and are
governed by the Code of Civil Procedure. They serve as a means to review and
correct decisions made in lower courts.
Appeals are an important part of the legal process in France and provide a way
to review and correct decisions made in lower courts. The Code of Civil
Procedure governs the appeal process in France.
In the French legal system, there are two levels of appeals: the Cour d'appel
and the Cour de cassation. The Cour d'appel is the first level of appeal, and it
checks whether the lower court's decision was in line with the law. The Cour de
cassation is the highest court in France and only reviews the legal aspects of
the case, not the facts.
The French standard of review is based on the "error of law" principle. This
means that the appellate court will only overturn the lower court's decision if
it finds that the court made an error in applying the law. The appellate court
does not have the power to re-examine the facts of the case.
Meanwhile, the legal systems of India and France both have mechanisms in place
for appeals that are intended to promote fairness and accuracy in the legal
process and maintain consistency in the application of the law. Although there
may be variations in the process and procedures of appeals between the two
systems, both systems are integral to the administration of justice.
Limitations Of Appeal System In India
The Indian legal system's appeal process has some limitations that can cause
problems for people seeking justice. One significant problem is that the process
takes a long time, sometimes even years, to reach a final decision. This can be
really frustrating for people who are waiting for a resolution to their case.
Another issue is that the appeal process is limited in what it can consider. The
higher court can only look at questions of law and not questions of fact. So,
even if the lower court made a mistake in a factual matter, the higher court
can't overturn the decision based solely on that.
There's also a huge backlog of cases in the Indian legal system, which can cause
further delays in the appeal process. And it can be really expensive to pursue
an appeal, with people having to pay for lawyers and court fees. This can be a
real financial burden, especially for people who don't have a lot of money.
Finally, the Indian legal system still uses a lot of paper-based processes,
which can be slow and inefficient. This can cause further delays in the appeal
process and make it harder for people to get the justice they need.
In short, there are several limitations in the Indian legal system's appeal
process that make it less efficient and less accessible to people.
Suggestions And Conclusion
There are several potential improvements that could be made to the appeal system
in the Indian legal system. One major issue that needs to be addressed is the
long delays that litigants often experience when pursuing an appeal. To reduce
these delays, the appeal process could be streamlined by setting up specialized
courts, increasing the number of judges, and adopting digital tools.
Another potential improvement would be to increase the scope of appeal.
Currently, the appellate court can only consider questions of law and not
questions of fact. By broadening the scope of an appeal to include factual
matters, the higher court would be able to consider all aspects of a case and
potentially overturn a decision based on a factual error made by the lower
The backlog of cases in the Indian legal system is another significant issue
that needs to be addressed. To reduce the backlog and speed up the appeal
process, measures could be taken such as increasing the number of judges,
improving court infrastructure, and implementing alternative dispute resolution
The cost of the appeal process can also be a significant burden on litigants,
especially those who are financially disadvantaged. To reduce costs, free or
subsidized legal aid could be provided to those who cannot afford to pay for
lawyers and court fees.
Finally, implementing technology would improve the efficiency of the appeal
process. By adopting digital tools such as e-filing systems and video
conferencing, the amount of paperwork involved could be reduced, communication
could be sped up, and the process could be made more accessible to people who
live in remote areas.
In conclusion, the appeal process in the Indian legal system has several
limitations that can cause frustration and hardship for litigants seeking
justice. However, there are several potential improvements that could be made to
the appeal system, such as streamlining the process, increasing the scope of the
appeal, reducing the backlog of cases, reducing costs for litigants, and
adopting technology. By implementing these improvements, the appeal process
could become more efficient, less expensive, and more accessible to all.
To conclude, the appeal process is a crucial part of the Indian legal system,
providing an opportunity to ensure that justice is served and errors are
corrected. By enabling cases to be re-examined, the appeal process promotes
fairness, impartiality, and transparency in the legal system, while also giving
a sense of closure to those involved. The legal system in India would be much
less effective in safeguarding the justice and protecting the rights of
individuals without the appeal process.
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Rajiv Gandhi Institute for Contemporary Studies, New Delhi
- Torre A. (2003): "The Impact of Court Delays on the Prosecutor and the
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