Indian Law: Sources and Classification

Sources of Law

• Law, as a tool of governance, has evolved to meet societal needs.

Introduction

• The Indian Constitution of 1950 lays the foundation for modern Indian law.
• Other sources include customs, beliefs, statutes, ordinances, regulations, and judicial decisions.
• Law sources can be classified into statutes, case laws/customary law, and ordinances/regulations.

Statutes

• Statutes are enacted by Parliament and State Legislatures, as per the Constitution's 7th Schedule.
• Delegated legislation includes rules and bye-laws by Central/State Governments and local authorities.
• Laws by Parliament apply throughout India, while State laws generally apply within the concerned state.
• Existing statutes before 1950 are included unless repealed.

Judicial Precedents

• Laws face scrutiny and challenges in court.
• Article 141 states that the Supreme Court’s declared law is binding on all courts.
• Supreme/High Courts interpret laws, establishing legal sources.

Personal Laws

• Personal laws are based on faith, customs, and practices.
• Examples include the Hindu Marriage Act, Indian Christian Marriage Act, and The Kazis Act.

Ordinance/Regulations

• Article 13.3 (a) defines law as including ordinances, orders, bye-laws, rules, regulations, notifications, and customs.
• The President can promulgate ordinances during Parliament recess, as per Article 123.
• Governors have similar powers in their states under Article 213.
• Panchayati Raj institutions have delegated power to regulate local rural administration.

Sources of Law and Legal System in India before Independence

• The study of Indian legal history can be divided into four periods: The Ancient, the Medieval, the British Administrative, and the Indian Legal Period.

The Ancient period

• The Ancient Period of law and governance was approximately 1500 years before and after the Gregorian calendar's first decade.
• Kings had localized laws, differing by territory.
• Universal texts included Vedas, Smritis (especially Manu-Smriti), Upanishads, and Arthasastra.
• Ancient Indian law was based on "dharma," a mix of legal and religious duties.
• Jurisdiction depended on dispute importance, with minor cases decided by lower courts and major ones by the king.

The Medieval Period

• The Medieval Period began around the 12th century, influenced by foreign invasions.
• Mohammed Ghori defeated Prithviraj Chauhan in 1192 AD, and Qutubuddin Aibak became Delhi's first Sultan.
• The Delhi Sultanate to Lodhi Dynasty(1206-1526) and Mughal Empire (until A.D. 1707) significantly influenced India.
• Sultanate period had various Justice courts related to different law branches; Diwan-i-Mazlim handled administration/bureaucracy disputes.
• Mughal courts were categorized by subject and requirement, with central justice by the central judicial system.
• The Qazi-ul-Quzat, appointed by the emperor, was the chief judicial functionary.

The British Administrative Period

• The administrative lasted about 200 years.
• The East India Company shifted from revenue to administrative/political control, strengthened by the Battle of Plassey (1757) and Dewani rights (1765).
• The need for dispute resolution led to the British legal system.
• Reforms included the Mayor's Court (1726) and Warren Hastings' Judicial Plan of 1772 (Adalat System).
• The Indian High Courts Act, 1861 established High Courts in Calcutta, Madras, and Bombay.
• The Government of India Act, 1935 introduced the Federal Court in 1937.
• The British introduced codified laws.
• Key laws such as the Indian Penal Code, the Indian Contract Act and the Indian Evidence Act were created.
• Separate legislation was enacted over these laws like the sale of goods act and the Indian partnership act.

Indian Legal Period

• The current legal legal period began with the Abolition of Privy Council Jurisdiction Act, 1949.
• The Privy Council, seated in England, had acted as the Highest Court of Appeal since 1726), which was passed by the Indian Government.
• The Drafting Committee, with B.R. Ambedkar as Chairman, was formed on August 29, 1947.
• The Indian Constitution was passed on November 26, 1949, and adopted on 26th January 1950.
• India gained autonomy in the judicial system with power segregation.
• The Supreme Court of India was established on January 26, 1950, under Article 124 (1), with 8 judges.
• The Supreme Court of India currently has 34 judges.

Legislative Process in India

• Statutes by Parliament/State Legislature are key law sources.
• India has a federal structure with Central/State Governments.
• The legislative process derives authority from the Constitution of India, 1950.
• India is a federation with a unitary bias.
• The two main law-making bodies are the Parliament of India and the State Legislature.

Parliament of India and State Legislature

• According to Article 79, the Parliament includes the President and two Houses: the Council of States (Rajya Sabha) and the House of the People (Lok Sabha).
• Article 168 for every State says that the Legislature includes the Governor and one House (Legislative Assembly).
• Some states have two houses as detailed in Article 168 (2): Legislative Council and Legislative Assembly.
• Legislative bodies derive law-making power from Article 245 of the Constitution.

Power to legislate

• According to Part XI of the Constitution of India, Article 245, Parliament may make laws for the country, and State Legislatures to the state.
• The power to make law is found in Article 246, read with Schedule 7.
• Parliament has exclusive power over matters in List I (Union List).
• Parliament and State Legislatures can make laws on matters in List III (Concurrent List).
• State Legislatures have exclusive power over matters in List II (State List).
• Article 254 illustrates inconsistency between laws made.
• If a State law conflicts with a Parliament law, the Parliament law prevails.
• If a State law on the Concurrent List is repugnant to an earlier Parliament law but has received Presidential assent, it prevails in that State.

Introduction of Bills

• Law formulation begins with a Bill introduced in either House of Parliament.
• Bills can be introduced by Ministers (Government Bill) or other members (Private Member's Bill).
• According to Article 107 of the Indian Constitution, Bills may originate in either House, except Money Bills.
• Article 13.3 (a) on the Constitution of India, 1950 mentions law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.
• A bill undergoes readings in each House before being sent to the President for approval.
• It takes weeks or months for a bill to become law.

Exigencies

• When time is of the essence and circumstances do not permit for a law to become passed, the Constitution of India allows for the use of laws that includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
• Article 123 allows the President to issue Ordinances during Parliament recess if immediate action is needed.
• The tenure of an ordinance can vary from six weeks to six months.
• Similar powers are given to State Governors under Article 213.
• The Article 243 helps illustrate how the power sharing has trickled down to the local level.
• Article 368 allows Parliament to amend the Constitution.
• The Supreme Court can rule amendments unconstitutional if they violate Fundamental Rights.

Legal Methods and Court System in India

• The judiciary, established by the Constitution, is the last resort institution.
• The Supreme Court is the top institution, followed by High Courts and Sub-Ordinate Courts.

Hierarchy of Courts in India

• The Constitution provides a judicial system with courts having varying powers based on their tier/jurisdiction.
• The current legal system is framed in Part V (Chapter IV-Supreme Court) and Part VI (Chapter V-High Courts) and (chapter VI-Subordinate Courts).

Supreme court

• The Supreme Court, governed by Chapter IV of Part V (Articles 124-147), comprises the Chief Justice and judges appointed by the President.

Original Jurisdiction

• It is defined in the Constitution as Art 131 which provides the Court can decide disputes between the Government of India and one or more states, between two or more states, between Government of India and State (s) on one side and State(s) on the other side.

Writ Jurisdiction

• A person can approach the Court against violation of rights under Part-III.
• Article 32 guarantees remedies in the form of writs.

Appellate Jurisdiction

• Being the highest court of appeal, the Supreme Court has power to hear all appeals against any order of the High Court.

Advisory Jurisdiction

• The Supreme Court can advise the President questions of importance etc as desired.

Punishment for Contempt

• The Supreme Court and High Courts are Courts of record with power to punish for contempt under Articles Article 129 and Article 215
• The Supreme Court was established on January 26, 1950, with 8 judges, currently has 34 judges.

High Court

• The High Court, the second highest court in the hierarchy, is detailed in Chapter V of Part VI.
• The Constitution assigns it the following powers: including Original Jurisdiction, Writ Jurisdiction, Appellate Jurisdiction and Power of superintendence.

Punishment for Contempt

• Like the Supreme Court, the High Court is also declared as a Court of record with the power to punish for contempt of itself.

Lower/Subordinate Courts

• Chapter VI of Part VI involves provisions about the subordinate courts.
• These courts are established and controlled by the High Court taking into account various factors.
• Lower courts can be divided into to two categories: criminal and civil.

Criminal Court Structure

• Section 6 of the Criminal Procedure Code, 1973 prescribes for the constitution of the following four classes of criminal courts:
  • Court of Session (presided over by a Sessions Judge appointed by the High Court).
  • Court of Metropolitan Magistrate (established by the State Government in consultation with The High Court in metropolitan areas, i.e., areas with population of more than a million).
  • Court of Chief Judicial Magistrate.
  • Executive committee.

Civil Court Structure

• The district court is the highest civil court, plus judicial/administrative powers.
• Article 233 says district judges are appointed by the Governor in consultation with the High Court.
• Subordinate courts have jurisdictions based on subject, pecuniary value, and territory.

The Tribunal System in India

• Tribunals are established for judicial/quasi-judicial duties to ease the judiciary's burden but can also bring subject expertise for technical matters.
• The Supreme Court says tribunals should have the independence from the executive.
• The tribunals should also have the same level of independence as the judiciary

Evolution of the Tribunal System

• Currently their are tribunals setup to act as substitutes for High Courts and subordinate to High Courts.
• For tribunals in the former category, such as the Securities Appellate Tribunal, the appeals lie with the Supreme Court.
• For tribunals in the latter category, such as the Appellate Board under the Copyright Act, 1957, appeals are heard by the corresponding High Court.

Composition of Tribunals

• Tribunal members may come from the government or fields of expertise. Expert and judicial members set tribunals apart from courts.
• Judicial Members must have a background that is judicial (High Court Judges or qualified lawyers).

The Tribunals Reforms, 2021

• It has abolished nine tribunals and transferred their functions to High Courts.
• This may overload the High Courts.

Alternate Dispute Resolution (ADR)

• Settling disputes without judicial intervention, known as ADR, can resolve civil, commercial, industrial, and family matters.
• A neutral third party helps parties communicate and resolve the dispute, with arbitration, conciliation and mediation being some of the approaches in the technique.

Arbitration

• It is a process where a dispute is submitted to an arbitral tribunal which makes a decision ("award").
• The award is binding on the parties

Conciliation

• The procedure involves an third impartial party that assists the parties in reaching mutually satisfactory agreement.
• The conciliator draws up the settlement, it is final and binding to both parties.

Mediation

• In mediation, a mediator helps parties reach a mutually acceptable resolution.
• Mediation leaves control of the agreement to the parties.

Lok Adalat

• Lok Adalat is a voluntary agency (People’s Court) that encourages out-of-court settlements.
• The order of the Lok-Adalat is final and binding on the parties to to the dispute.

Important Provisions Related to ADR

• Section 89 of the Civil Procedure Code, 1908 provides that opportunity to the people that exist the element of possible settlement outside the court.
• The Acts which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and The Legal Services Authority Act, 1987
• Industrial Disputes Act, 1947 – Section 4 of the Act assigns conciliators the responsibility to The Code was amended in 2002 to provide a medium of mediation for all the pending cases.
• The new rendition of the Consumer Protection Act dedicates an entire Chapter to the resolution of disputes.

Advantages of Alternative Dispute Resolution

Advantages of ADR include:

• Less Time Consuming: ADR has a faster resolution time.
• Cost effective method ADR is often a less expensive means to resolve a dispute.

Regulatory Bodies in India

• Alongside regulatory bodies in India serve as watchdogs for the respective sectors they oversee.

Top Regulatory Bodies

• Top Regulatory Bodies include Securities and Exchange Board of India (SEBI), Reserve Bank of India (RBI), Insurance Regulatory and Development Authority of India (IRDAI), Pension Funds Regulatory and Development Authority (PFRDA) and Association of Mutual Funds in India (AMFI).

Securities and Exchange Board of India (SEBI)

• SEBI was created to protect investor's interests and prevent market malpractices.

SEBI's functions include

• Protective.

• Regulatory.

• Developmental.

• SEBI also can change laws, access records, conduct hearings, approve listings, and take actions against malpractice.

• The Reserve Bank of India (RBI) is India's central bank, and has the primary purpose of monetary policy and supervision.

RBI functions include

• Authorising opening banks.

• Implementing norms.

• Managing reserves.

• Inspecting financial statements.

• Overseeing liquidation.

• Regulating payment systems.

• Printing currency.

• RBI manages debt and foreign exchange.

Insurance Regulatory and Development Authority of India (IRDAI)

• The Insurance Regulatory and Development Authority of India (IRDAI) is an independent statutory body that was set up under the IRDA Act, 1999.

The three main objectives of IRDA are

• To ensure fair treatment and protection.

• To regulate the insurance companies and ensure the industry's financial soundness.

• To formulate the needed standards and regulations.

• IRDAI functions involves granting registrations, levying fees, and conducting investigations.

Pension Funds Regulatory and Development Authority (PFRDA)

• The Pension Fund Regulatory and Development Authority (PFRDA) the sole regulator of the pension industry in India.

PFRDA has functions such as

• Conducting enquiries and investigations.
• Public awareness and training.
• Settlements of disputes.
• Registering intermediaries.
• Protecting uses' interest of pension funds.
• Creating guidelines.

Association of Mutual Funds in India (AMFI)

• The Association of Mutual Funds in India (AMFI) works for mutual fund development and is an entity for the regulatory body for mutual funds sector in India.

Ministry of Corporate Affairs (MCA)

• The Ministry of Corporate Affairs (MCA) regulates the corporate sector of India and frames regulations.
• The aim of MCA is to protect the interests of all stakeholders and growth for all companies.

National Housing Bank (NHB)

• The National Housing Bank (NHB) is the regulatory body for housing finance companies in India.

Primary Legislation

• The law derives from the enactments passed in the Parliament or State Legislatures.
• The President and Governor have power to provide limited ordinances.

Secondary/Sub-Ordinate Legislation

• Secondary/Sub-Ordinate arise from the need to empower authorities to legislate to counter the daily legal challenges that become a necessity.
• Secondary legislation is ingrained in the Constitution of India, 1950.
• The Constitution of India, if needed, illustrates power delegation.