: Guide to
Indian Laws
Mr. Ramakrishnan
is a lawyer of over
20 years standing practicing in
Update to an article previously published on LLRX.com on
<http://www.llrx.com/features/indian2.htm>
Table of Contents
Law and Judicial System in Ancient
India
Law and the Judicial System
in Medieval India
Independence of the Judiciary from the Executive
Review of the Functioning of the Constitution
The Election Commission of India
Securities and Exchange Board
of India.
Historically
As
a consequence of over a century of British rule, a substantial portion of
Indian law and Indian legal institutions are based on British law, British
legal system and the English language.
During the
ancient times the Indian
sub-continent was inhabited predominantly
by Hindus. The legal system took its colour from the
Hindu religious and social practices.
The Hindu society was characterised by the
caste system and the joint family system.
The 4 castes in
the order of importance were (1) Brahmins or the priests (2) the Kshatriyas or the warriors (3) the Vaisyas
or the merchants and (4) the Sudras or the
workers. Castes
apparently originated from
an individual's
occupation and mobility between the castes
was not unknown. In the later years
casts became rigid
and inter-caste mobility
was not permitted.
The Hindu joint
family was originally a family of
Hindus related by blood living together
sharing common food
shelter and properties. The family rather than the individual was the
social unit in ancient
The law applied
was on the basis of ancient religious texts and authoritative
commentaries on these texts. The
kings under advice of his ministers and learned Brahmins
administered the law. The
king also appointed
judges to administer the law. Law at the
village level was administered by a village panchayat
consisting of 5 or more members. The
system of professional lawyers appearing for the litigants appears
to be unknown.
The Muslim
invasions of
The British
came into
A substantial
portion of the Hindu law has been codified by the Indian
Parliament after
independence. The Muslim law is as
yet uncodified. Courts
apply Muslim law based on
authoritative commentaries and on precedents.
The
Indian Constitution was framed by the
Constituent Assembly and came into effect from
The
Constitution is divided into Parts and further into Chapters and Articles. The
Constitution provides for a quasi-federal nation consisting of a Union of
States (Article 1). It provides for separate executives and legislatives for
the
The
Constitution itself can be amended by a special majority of the union
legislature. Amendments to the provisions of the Constitution dealing with the
States require the consent of the legislatures of at least half of the States
(Article 368). The Constitution can be amended fairly extensively but the
amendments cannot violate the basic features of the Constitution such as the
independence of the judiciary, the sovereign democratic and republican
structure of the nation, the rule of law and free and fair elections.
The
President of India heads the Union Executive. The President is the nominal head
of the State. The real power lies with the Union Council of Ministers (the
cabinet) headed by the Prime Minister.
The
President is elected for a period of 5 years by an electoral college consisting
of the members of the
The
Prime Minister is the most powerful person in
The
Union Government is divided into a number of ministries each headed by a
minister and further into departments with a larger number of
Indian administrative officers and subordinate employees. See http://goidirectory.nic.in for a directory of the government websites.
Also see www.indiamap.com.
The
Union legislature (the Parliament) is bicameral in nature, again on the
The
Council of States, as its name indicates, is largely comprised of
representatives of the States elected by the members of the legislatures of the
States. It is a permanent House with one-third of its members retiring every
second year. The Vice-President is the Chairman of the Council of States. The
House of the People consists of members chosen by direct election by the
citizens of
The
Legislative power of Union Legislature extends to all matters mentioned in the
Union list and in the Concurrent list of the seventh schedule to the
Constitution but does not extend to any of the matters mentioned in the State
list of the seventh schedule. The Union Legislature has the residuary
legislative powers. The division of legislative power between the
The
Constitutional structure of the State is by and large similar to that of the
The
Governor acts on the advice of the State Council of ministers headed by the
State Chief Minister. The Chief Minister is normally the leader of the
political party commanding a majority in the Lower House or the only House of
the State Legislature.
The
legislature of most States consists of only one House (the Legislative
Assembly) whose members are directly elected by Indian citizens resident in
that State. The Legislative Assembly is elected for a period of 5 years unless
dissolved earlier. The legislative power of the State Legislative extends to
all matters mentioned in the State List and in the Concurrent List of the
seventh schedule to the Constitution. The legislative power of the State
Legislative extends only to the territory of that State.
A
few States which have two Houses have a Legislative Council in addition to the
Legislative Assembly. The Legislative Council is a permanent body elected by
specified electorates comprising members of the Legislative Assembly,
University graduates, members of Municipalities and other local bodies. The
Legislative Assembly is empowered to abolish the Legislative Council.
The
Union Judiciary consists of the Supreme Court
of India. The Supreme Court is the ultimate court of appeals for the nation. It
hears appeals from the High Courts and acts as a court of review over
subordinate tribunals. The Supreme Court exercises original jurisdiction in
disputes between the
The
Supreme Court consists of a Chief Justice and such number of puisne judges as the Union Legislative may legislate. The
President in consultation with the Chief Justice of India appoints the judges
of the Supreme Court. The senior-most puisne judge is
normally appointed the Chief Justice of India. A judge of the Supreme Court
holds office until he attains the age of 65 years. He could be removed earlier
by impeachment by both the Houses of Parliament.
The
State Judiciary consists of a High Court for each State and subordinate courts.
Each High Court consists of a Chief Justice and a number of puisne
judges. The President appoints a High Court judge after consultation with the
Chief Justice of India, the Governor of the State and the Chief Justice of that
State. A High Court judge holds office till he attains the age of 62 years. A
High Court judge can be impeached in the same manner as a Supreme Court judge.
The
High Court hears appeals from the subordinate courts and tribunals. It also
acts as a court of revision for the subordinate courts and tribunals. The High
Court has powers to issue writs of habeas corpus, certiorari and others. Some
High Courts also exercise original jurisdiction in civil matters and admiralty
jurisdiction. The language of the Supreme Court and the High Court is English,
although the national language Hindi is rapidly gaining ground.
Subordinate
courts are divided into criminal and civil courts. The civil courts consist of Munsif courts and courts of Subordinate Judges. Appeals
normally lie from these courts to the District Court and then to the High
Court. A litigant is normally entitled to two appeals-a first appeal both
on facts and law and a second appeal on law alone. The criminal
courts consist of Magistrates of first or second class and the Courts of
Session. Appeals from the Magistrates'
courts lie to the Court of Session and then to the High Court.
Specialised tribunals are established such as
the Income tax Appellate Tribunal, the Company Law Board, the Sales Tax
Appellate Tribunal, the Consumer Forums, the Central and State Administrative
Tribunals, the Debt Recovery Tribunal Lok Adalaths (Peoples' Courts), Mahila
Courts (Women's Courts), Fast Track Courts, Special Courts/Designated Courts
under various enactments. All these tribunals are under the superintendence of
the High Court within whose territorial jurisdiction they function.
Although
the Parliament has powers to impeach a judge of the Supreme Court or the High
Court, this is a power which is very difficult to exercise in practice. Not a
single judge has been removed by the Parliament in more than 50 years of
independence. Judges of the Supreme Court and the High Court have enormous
freedom from political and other interference during their tenure. However
inroads are being sought to be made (and resisted by the Judiciary) through
lack of transparency and giving importance to political and sectarian
considerations in the appointment of judges.
The
Constitution prescribes certain fundamental rights such as equality before law
(which includes protection from arbitrary action of the State), freedom from
discrimination on grounds of religion, race, caste, sex or place of birth,
equality of opportunity in matters of public employment, freedom of speech and
expression, right to assemble peacefully without arms, to form associations or
unions, to move freely through India, to reside and settle in any part of
India, protection against deprivation of life and personal liberty, freedom of
conscience and the profession, practice and propagation of religion. Neither
the
Fundamental
duties were added to the Constitution in 1977. Among these are duties to abide
by the Constitution and respect its ideals and institutions, the National Flag
and the National Anthem, to value and preserve the rich heritage of our
composite culture, to protect and improve the national environment including
forests lakes, rivers and wild life and to have compassion for living creations
and to strive towards excellence in all spheres of individual and collective
activity.
The
Constitution has served the nation well for more than five decades and has
survived onslaughts to destroy many of its features. The Government of India
(the Union Government) has recently constituted a committed headed by a retired
Chief Justice of India to examine the working of the Constitution and suggest
amendments. The final report of the committee can be
found online.
Text
Books
The
standard text books on Constitutional law are:
This
is an organisation headed to suggest legal reforms.
The Law Commission periodically
submits reports to the Union executive suggesting legal reforms. The Union
executive is however not bound to act on the suggestions.
The Election Commission of India is headed by the Chief Election
Commissioner and two Election Commissioners. The sole responsibility of the
Election Commissioner is to periodically conduct elections to the State and
The Reserve Bank of India is the apex bank in
The
Securities and Exchange Board of India is the apex body
dealing with trading of securities. It regulates the stock exchanges, public
issue of securities and other intermediaries in the securities market.
Lawyers
are the basic legal practitioners and the only persons allowed audience as a
matter of right in the civil and criminal courts. Judges
of the subordinate judiciary are
almost always appointed
from the Bar.
Judges of the High Courts and
the Supreme Court are either promoted
from the subordinate judiciary or directly
appointed from the Bar. Lawyers
are governed by the Advocates Act 1961.
A lawyer must pass a degree in law from a recognised
university and has to be enrolled as an advocate with the Bar Council of the
State in which he intends to practice. He is subject to disciplinary
proceedings by the State Bar Council against whose decision an appeal lies to
the Bar Council of India and then to the
Supreme Court. The Bar Council consists of ex-officio and elected
members from the Bar. (A list of universities
is available online)
Chartered
Accountants, Company Secretaries and other persons with prescribed
qualification are allowed to appear before the most of the Tribunals.
Some
Tribunals like the Family Courts expressly bar lawyers from appearing except with
the permission of the tribunal.
The
primary source of law is in the enactments passed by the Parliament or the
State Legislatures. In addition to these the President and the Governor have
limited powers to issue ordinances when the Parliament or the State Legislature
are not in session. These ordinances lapse six weeks from the re-assembly of
the Parliament or the State Legislature. These laws are later published in the
Official Gazette (The Gazette of India or the State Gazette) Most enactments
delegate powers to the executive to make rules and regulations for the purposes
of the Acts. These rules and regulations are periodically laid before the
legislature (
Laws
passed by the Parliament are easily accessible at India Code and www.mahalibrary.com, which are free sites. The AIR (All India
Reporter)
Manual of Central Laws is an exhaustive collection of laws enacted by the
Parliament together with decisions of the Supreme Court and the High Court on
these laws but this is not available online. Laws passed by the States are more
difficult to access. The States are slowly attempting to launch web sites and
may take a couple of years to complete. For the present, State laws are
accessible through book sellers in
An
important secondary source of law is the judgments of the Supreme Court High
Court and some of the specialised Tribunals. The judgments
of these institutions not only decide legal and factual issues in dispute
between the parties but in the process interpret/declare the law. This
interpretation/declaration law - the ratio
decedendi is a binding precedent.
The
Constitution provides that the law declared by the Supreme Court shall be
binding on all courts within
The
judgments of a State High Court are binding on itself and on all subordinate
courts and tribunals in the State. However a numerically larger bench of the
High Court can overrule a decision of a numerically smaller bench. Judgments of
a High Court are not binding on another High Court or on courts subordinate to
another High Court, but are of great persuasive value.
Judgments
of specialised tribunals are binding on itself but
not on the courts or other tribunals. Occasionally larger benches of a tribunal
are constituted to reconsider the correctness of the decisions of smaller
benches.
The
Privy Council in
Judgments
of the Supreme Court and the High Courts are available at www.judis.nic.in and www.mahalibrary.com
Books
and commentaries on Indian law are only of persuasive value but are frequently
cited in the courts. Considering the underlying foundation of English Law and
English legal principles, standard books on English law are frequently used and
cited in the courts. Commentaries from other jurisdictions are seldom used.
Standard
Books and Commentaries on Selected Topics:
Arbitration
Law
Civil
Procedure
Company
Law
Constitutional
Law
Conveyancing
Contract
Act
Criminal
Law
Hindu
law
Income
Tax
Muslim
law
Property
Law
Torts
Publishers
and Books Sellers
The
addresses of some of the publishers and books sellers:
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