Sources of Law: Where the Indian Law Comes From?
Updated: Aug 2, 2021
The main sources of law in India are the Constitution, statutes (legislation), customary laws and case laws. Statutes are enacted by Parliament, State legislatures and Union Territory legislatures. Besides, there is a vast body of laws known as subordinate legislation in the form of rules, regulations as well as bye-laws made by Central/State governments and local authorities like municipal corporations, municipalities, gram Panchayats and other local bodies. This subordinate legislation is made under the authority conferred or delegated either by Parliament or State or Union Territory legislatures concerned. Therefore they are called delegated legislation also Judicial decisions of superior courts like Supreme Court are binding on all courts within the territory of India. Local customs and conventions which are not against statute, morality, etc., are also recognized and taken into account by courts while administering justice in certain spheres.
ENACTMENT OF LAWS: WHO CREATES LAW FOR US
Parliament is competent to make laws on matters enumerated in the Union List. State legislatures are competent to make laws on matters enumerated in the State List. Parliament alone has power to make laws on matters not included in the State or Concurrent List. On matters enumerated in the Concurrent List, laws can be made by both Parliament and legislatures. But in the event of repugnancy or conflict law made by Parliament shall prevail and law made by State legislature, to the extent of repugnancy, be void.
Acts and Ordinances
An Act of Parliament is an Act passed by both the Houses of Parliament and assented to by the President. Ordinances can be promulgated by the President (for the Union) and by the Governor (for the State) when circumstances make immediate action necessary and Parliament (or the State Legislature) is not in session. Ordinances are temporary laws. They can be made on any matter which is within the competence of Parliament (or State Legislature). However, an Act must be passed to replace the ordinance within six weeks of the reassembly of Parliament or State legislature otherwise the validity of the Ordinance expires.
THE SUPREME COURT
The provision for a Supreme Court is made in Article 124. As per the Article 124(1) of the Constitution of India, the strength of the Supreme Court is fixed by the law made by the Parliament wherein the total number of judges is set out at 34, including the Chief Justice of India (i.e., 33 +1). Parliament is competent to make laws pertaining to the constitution, organization, powers and jurisdiction of the Supreme Court. It is a Federal Court, vested with original and exclusive jurisdiction to deal with disputes between the Union and the State(s), or between the States (Article 131). It may be noted that the parties involved here must be the units of the Federation, i.e., the Union or the State(s). It also acts as final Appellate Tribunal to hear those civil cases where the High Court concerned certifies the involvement of a substantial issue of law of general importance and the decision of Supreme Court is needed (Article 133). As regards criminal cases, an appeal will lie with the Supreme Court as a matter of right- especially in cases of the awarding of a death sentence by the lower court (Article 134). The Supreme Court may in its discretion grant special leave to appeal against any judgment, decree determination, sentence or order in any cause or matter passed or made by any court or tribunal (except a military court or tribunal) in India. Article 136 marks the widest expression in appeals. Under its Advisory Jurisdiction, the Supreme Court also gives its opinions on issues of public importance sought by the President of India. However, the Supreme Court can also decline to express its opinions if it considers them superfluous or unnecessary (Article 143). Finally, the Supreme Court can also issue writs to cure any ills against the FR's (Article 32). The jurisdiction of the SC may be classified as Original, Appellate and Advisory.
a. Original- In any dispute between the Center and a State or the states. Also enforce fundamental rights. b. Appellate- It has jurisdiction to hear appeals against the decisions of the High Courts. c. Advisory- The President of India may seek the advice of the Supreme Court. The Supreme Court has also the power to review its own decision. The law declared by it is binding on all lower courts within the territory of India. Supreme Court is a court of record i.e. it has the power to punish for its own contempt.
Each state can have its own High Court (Article 214). The Bombay, Madras and Calcutta High Courts were established in the four Presidency towns in 1862, under Charters of the ruling British Government and are the oldest, whereas the Ranchi High Court (Jharkhand), the Bilaspur High Court (Chhattisgarh) and the Nanital High Court (Uttaranchal) were created in 2000, and are the youngest. Today, there are 25 High Courts functioning in the territory of India. Delhi is the only Union Territory to have its own High Court. Parliament can also establish a common High Court for two or more states (Article 231). The jurisdiction of a High Court prevails over the state(s) or Union Territories concerned, such as Bombay High Court‘s extended territorial jurisdiction over Maharashtra, Dadra and Nagar Haveli, Goa, and Daman and Diu, and that of Calcutta High Court‘s over West Bengal, and Andaman and Nicobar Islands. The High Courts can issue writs (Article 32 and 226). The High Court has to judicially and administratively superintend the tribunals working within its jurisdiction (Article 227). The High Courts too accept Public Interest Litigation (PIL) (Article 226).
APPOINTMENT AND REMOVAL OF THE SUPREME COURT / HIGH COURT JUDGES
The President of India appoints the judges of the Supreme Court on the advice of his Council of Ministers. The President consults with the judges of the Supreme Court and the High Court’s when appointed the Chief justice of India (the CJI). In 1993, a nine-judge bench of the Supreme Court prescribed that the senior-most judge should be appointed as the CJI. While appointing the other judges of the Supreme Court, the concurrence of the CJI is required in addition to the above criterion (Article 124 (1)). A judge of the Supreme Court should be (1) an Indian citizen (2) either a distinguished jurist or should have worked as a High Court judge for 5 years, or should have been an Advocate of a High Court for a minimum of 10 years (Article 124(3)). His tenure will be till his obtaining the age of 65 years or his own resignation or his removal by the President on proven misbehavior / incompetence, through impeachment or death. In 1991-93, such an impeachment motion was brought against the Supreme Court Judge R. Ramaswamy, but was unsuccessful.
The Chief Justice of a High Court is appointed by the President of India in consultation with the Chief Justice of India, the Chief Justice of the State concerned, and the Governor of the State concerned. A judge of a High Court should be (1) an Indian citizen (2) have worked for 10 years as an advocate of a High Court (Article 217 (2)) or have held a judicial office in India for a minimum period of 10 years. His tenure would be until he attains the age of 62 years or his own resignation or his removal by the President of India in the same manner as applicable to a judge of the Supreme Court. Judges of the Supreme Court, the High Courts, and all other persons appointed to any official post in the Government, are said to hold office at the pleasure of the President.
LAW COMMISSION OF INDIA: BODY FOR REFORMING LAW
A law commission is an executive body which functions with its advisory role to the Ministry of Law and Justice. The Law Commission, on a reference made to it by the Central Government or suo-motu, undertakes research in law and review of existing laws in India for making reforms therein and enacting new legislations.
LAW IN ANCIENT INDIA
Law has its equivalent in Hindu jurisprudence the word Dharma‘. Yajnavalkya, an ancient scholar, stated Shruti and Smriti to be the sources of law. Shruti means the Vedas which were mainly the philosophy of Hindu religion. The Smritis or Dharma sutras were the basic law of Indian legal system. Manusmriti and Naradsmriti were important piece of ancient Indian legal system. Gautama, Manu, Yajnavalkya and Narad were ancient law-givers. In Medieval India, Hindu Law had two main forms—Mitakshra and Dayabhaga. Mitakshra which prevails in most of India was given by Vijaneshwara. Dayabhaga prevailing in Bengal and North-East states were given by Jimutvahana.
The people of India are of different religions and faiths. They are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession, etc.
Law relating to marriage and/or divorce has been codified in different enactments applicable to people of different religions. The Special Marriage Act, 1954 extends to the whole of India except the State of Jammu and Kashmir. Persons can specifically register marriage under this Act even though they are of different religious faiths. The Act also provides that the marriage celebrated under any other from can also be registered under the Special Marriage Act, if it satisfies the requirements of the Act. An attempt has been made to codify customary law which is prevalent among Hindus by enacting the Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955 applies to Hindus and also to Buddhists, Sikhs, Jains and also those who are not Muslims, Christians, Parsi or Jews by religion. Provisions in regard to divorce are contained under the provisions of both Marriage Act and the Special Marriage Act. Common ground on which divorce can be sought by a husband or a wife under these Acts fall under these broad heads: adultery, desertion, cruelty, unsoundness of mind, venereal disease, leprosy, mutual consent and being not heard of as alive for seven years.
A divorce can be claimed if the following are violated: Cruelty, Desertion: living separately without reasonable cause for more than 2 years, Unsound mind OR Husband/ wife not heard for more than 7 years of marriage
As regards Muslims, marriage is governed by the Mohammedan Law prevalent in the country. As regards divorce, i.e., Talaaq, a Muslim wife has a much restricted right to dissolve her marriage. However, by the Dissolution of Muslim Marriage Act, 1939, a Muslim wife has been given the right to seek dissolution of her marriage on certain grounds including non-maintenance and cruelty. The Supreme Court of India has declared the centuries-old practice of instant 'triple-talaq' among the Muslim community as unconstitutional.
The Child Marriage Restraint Act, 1929, from 1 October 1978, provides that marriage age for males will be 21 years and for females 18 years.
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973, right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claims of the wife, etc., however, depend on the husband having sufficient means. Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. The right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands to claim reasonable and fair amount of maintenance.
The Indian Succession Act was enacted in 1925. This law is for all Indian except Hindus and Muslims. The law relating to intestate succession i.e. succession of property of a person dying without will, among Hindu is codified in the Hindu Succession Act, 1956. This act is recently amended to include equal right of women to inherit property.
Law and Justice The Advocates Act, 1961
Establishment of Bar Council of India and State bar Councils
Regulation of legal profession and legal education
Two types of Advocates: Advocate and Senior Advocate
Provides for the qualification for enrollment of lawyers to State Councils
Rules for standards of conduct, professional ethics, etc.
The Legal Services Authorities Act, 1987
National Legal Services Authority (NALSA) constituted in 1995.
3-tier body on National, State and District level.
Inspired by Article 39A to provide free legal aid and equal justice to all.
Lok Adalats held under this law.
SC/ST/Women/Children/Industrial worker and those with below 25,000 income
National Legal Literacy Mission 2005-2010 launched.
The Family Courts Act, 1984
For speedy and cost effective settlement of disputes relating to marriage and family affairs
The Flag Code of India, 2002
Law relating to govern the display of National flag.
Environment related statutes
The Water (Prevention and Control of Pollution) Act, 1974 popularly called the Water Act established the Central and State Pollution Control Boards.
The Air (Prevention and Control of Pollution) Act 1981
National Air Quality Monitoring Programme (NAMP) started. Vehicular Pollution checked.
The Environment (Protection) Act, 1986. Provided for EIA (Environmental Impact Assessment) and CRZ (Coastal Regulation Zone
The Prevention of Cruelty to Animals Act, 1960. Animal Welfare Board of India, headquartered in Chennai is constituted.
The Indian Wildlife (Protection) Act, 1972. Governs wildlife conservation and protection of endangered species.
Wildlife Action Plan, Project Tiger, Project Elephant under this law.
The Consumer Protection Act, 1986
Defects in goods, or Deficiency in services– Consumer‘s Right to be protected. A 3 tier quasi– judicial machinery on National, State and District levels. National Commission or NCDRC, SCDRC and District Consumer Dispute Redressal Forum are constituted – Mind there is no Consumer Court in the country! 24 December is called National Consumer Day; 15 March is World Consumer Rights Day. The order of NCDRC is challengeable only in the Supreme Court.
IMPORTANT STATUTES – PROPERTY RELATED LAWS
Property is something, which is capable of being owned by a person in law. Ownership of a property means when a person owns a property to the exclusion of all other. Easement is the right to have passage, light or air etc. that an owner or occupier of land possesses for the beneficial enjoyment of the land. A property may be Movable, Immovable, Tangible or intangible or even an Intellectual Property.
The Transfer of Property Act, 1882
Transfer of Rights in an immovable property e.g. land, building etc. Such transfer may be through sale, lease or license, mortgage, etc. Sale is a complete transfer of ownership for a consideration. Lease or tenancy is a right given by the owner of the land to the tenant for a specified period for a rent or premium. Mortgage is when some money is lent by a person to other on the security of a land.
The Sale of Goods Act, 1930
Regulates the sale and purchase of movable property. Intangible Property are the rights recognized by law, which are of some value and incapable of being touched or seen.
Trade Marks Act, 1999
A trade mark is registered for 10 years which can be renewed. It may be a mark, a brand, heading, label or name connected with the business. A passing off action lies if another person uses the trade mark unauthorized.
The Copyright Act, 1957
The author of a literary, dramatic, musical, artistic work has exclusive right to the reproduction of such work. The right continues for 60 years after the death of the author. It is permissible to copy some material for research, criticism or review.
The Design Act, 2000
The author of an industrial design i.e. shape, colour of a design can get it registered under the act. A design registered initially for 10 years extendable by 5 more years.
The Patents Act, 1970
Patent is granted to the inventor of a patentable invention for manufacture or sell of the article. The Controller of Patents grants the patent for 20 years. Patent headquarters- Kolkata.