Guide to Indian Laws
Mr. Ramakrishnan is a lawyer of over 20 years standing practicing in Madras (now Chennai), South India. He specialises in corporate law and arbitration. He has a degree in commerce from the University of Madras, a degree in law from the University of Bangalore, and a Post Graduate Diploma in Alternative Dispute Resolution from the National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad. He has contributed to ‘Ramaiya’s Commentaries on the Companies Act’. He has also edited books on the Madras High Court Rules. He has contributed articles on corporate law and taxation to many law magazines.
Update to an article previously published on LLRX.com on January 15, 2003
<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.
Introduction
India is situated in South Asia. It is a democratic republic. The striking features of India are of course its large population (in excess of 1 billion), its diversity in religion and culture (almost all the major world religions are found here), and its absolute commitment to democracy.
Historically India was a collection of kingdoms and empires constantly at war with each other. The ancient empire of King Ashoka (a Buddhist) and the later Mughal Empire united a substantial portion of the nation. However modern India took shape with the conquest of the nation by the British. This conquest started in the late 17h century. The British ruled India till 1947 when India became an independent nation.
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.
Law and Judicial System in Ancient India
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 India. The family (not the individual) owned properties. The Hindu family was patriarchal in nature. The eldest male was the head of the family and enjoyed considerable powers over the rest of the family. His position was akin to the pater familas under the Roman law.
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.
Law and the Judicial System in Medieval India
The Muslim invasions of India began around the 11th century AD. Gradually vast portions of India came under the Muslim rule. Muslim law and Muslim judicial institutions were established in India. The fountainhead of justice was the Sultan or the Mughal emperor. He established a hierarchy of courts in the districts and in provinces. Appeals lay from one court to the other and ultimately to the Sultan or the emperor. The Panchayats continued in the villages administering Hindu law. As the courts were presided over by Muslim judges, the law administered was the Shairat or the Muslim Law.
The British Period
The British came into India as traders in the 17th century AD and gradually conquered the entire sub-continent. They established their own set of courts and judges. The law administered by them was the English law as extended to India. However in matters of personal law, the British applied the Hindu law or the Muslim law depending on the religion of the subject. Assessors initially assisted the judges in matters of personal law but these assessors were later dispensed, as the judges became more knowledgeable in personal laws. Even today different personal laws govern Hindus and Muslim.
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.
Constitution of India
The Indian Constitution was framed by the Constituent Assembly and came into effect from 26th November 1949 (Preamble and Article 394). The Indian Constitution was in part modeled on the Government of India Act 1935 (an Act passed by the British Parliament) and the Constitutions of other nations such as the Irish Constitution. The Indian Constitution in turn served as a model for many nations, which became independent subsequently. A text of the Constitution can be found online.
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 Union and for each of the States and demarcates the powers of each. However the residual power is with the Union. Under certain circumstances, the Union can (and has) dissolved the executive and legislatives of the States. The judiciary is however unitary in structure although administered separately by the Union and the States. There are no separate Federal and State Courts.
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.
Union Executive
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. India follows the Westminster form of Government with an elected President instead of a hereditary monarch (Articles 52 & 53).
The President is elected for a period of 5 years by an electoral college consisting of the members of the Union and State legislatures (Articles 55 & 56). A President can be re-elected any number of terms (Article 54). A Vice-President is elected for a period of 5 years by the members of the Union Legislature. The President can be impeached for violation of the Constitution (Article 61). The Vice-President can be removed by a mere resolution passed by both the Houses of the Union legislature (Articles 63-67).
The Prime Minister is the most powerful person in India. He is the head of the Council of Ministers. The President is normally bound to act on the advice of the Council of Ministers. The Prime Minister is usually the leader of the political party commanding a majority in the House of the People. During the recent past, the Prime Minister has been the leader of a coalition of political parties which together command a majority in the House of the People.
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 Union legislature (the Parliament) is bicameral in nature, again on the Westminster model. There is an Upper House called the Council of States or the Rajya Sabha and a Lower House called the House of People or Lok Sabha.
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 India. The House of the People, unless sooner dissolved, continues for a term of five years.
Division of Legislative Power
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 Union and the States is an important feature of the Constitution. Legislative enactments of either the Union or the States are often challenged on the ground that the enactments are beyond the legislative competence of the Union or the States. The higher judiciary then decides on the legislative competence.
The State Executive
The Constitutional structure of the State is by and large similar to that of the Union. The executive power of each State is vested in the Governor of the State. The Governor of each State is appointed by the President on the advice of the Union Council of Ministers. The Governor is appointed for a term of five years but holds office during the pleasure of the President and can be removed any time.
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 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.
Union and State Judiciary
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 Union and the States or between the States inter-se. The Supreme Court can also issue writs in the nature of habeas corpus, mandamus, prohibition, and certiorari and quo warranto for the enforcement of fundamental rights.
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.
Independence of the Judiciary from the Executive
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.
Fundamental Rights and Duties
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 Union nor the State legislative, executive or judiciary can act in violation of these fundamental rights. The right to property ceased to be a fundamental right from 1979 onwards but the Constitution provides that no person shall be deprived of his property save by authority of law. (Article 300A)
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.
Review of the Functioning of the Constitution
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:
- Basu-Shorter Constitution of India 13th edition 2001. Wadhwa publication. This book gives a commentary on the Constitution article by article.
- H.M. Seervai -Constitutional law of India. This is closely reasoned and a detailed study into the Constitution. It makes very good reading but the last edition was in 1991 (4th Edition)
The Law Commission of India
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
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 Union legislatures as well as the Presidential elections. It has to ensure a free and fair polling in all these elections. The Election Commissioners are given financial and operation autonomy to ensure the conduct of free elections.
The Reserve Bank of India
The Reserve Bank of India is the apex bank in India. It manages monetary operations control over foreign exchange and control over commercial banks and financial institutions.
Securities and Exchange Board of India
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.
Legal Practitioners
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.
Sources of Law
Primary Sources
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 (Union or State as the case may be). This subordinate legislation is another source of law.
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 India. A few State laws may be found at the Stare Government websites. See http://goidirectory.nic.in/stateut.htm
Secondary Sources
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 India. The ratio decidendi as well as the orbita dicta of the Supreme Court constitute binding precedents to be followed by all the other courts and tribunals. The Supreme Court is not bound by its own decisions. However decisions of a larger bench of the Supreme Court are binding on benches of equal or lesser strength. The Supreme Court has used its powers to venture into judicial activism going far beyond the traditional view that courts should only interpret the law and not make new law. Judgments of the Supreme Court on public interest litigation, protection of the environment and protection against arbitrary State action can be viewed more as judicial legislation and not as mere interpretation of the law.
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 London was the highest appellate body for India prior to independence. Judgments of the Privy Council rendered prior to independence are binding precedents unless overruled by the Supreme Court. Decisions of all other foreign courts are only of persuasive value. In view of the prodigious output of the Supreme Court during the past fifty years, the role of judgments of foreign courts has declined considerably. These judgments are normally cited in the Supreme Courts and in the High Courts only in the absence of Indian judgments on the point involved. Foreign judgments are seldom cited before the subordinate courts.
Judgments of the Supreme Court and the High Courts are available at www.judis.nic.in and www.mahalibrary.com
Books and Commentaries
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
- Law of Arbitration and Conciliation by R.S. Bachawat – (4th Ed) 2005 Wadhwa & Company Nagpur.
Civil Procedure
- Civil Procedure Code – The All India Reporter Commentaries.
Company Law
- Guide to the Companies Act by A. Ramaiya – Publishers Wadhwa and Company. (16th Ed.) 2004.
Constitutional Law
- Shorter Constitution of India -Basu Wadhwa publication. This book gives a commentary on the Constitution article by article. Constitutional law of India-H.M. Seervai. Universal Book Traders. This is closely reasoned and a detailed study into the Constitution. It makes very good reading but the last edition was in 1991 (4th Ed.)
Conveyancing
- Indian Conveyancer – Mogha Eastern Law House Conveyancing -De Souza’s – Eastern Law House.
Contract Act
- Indian Contract and Specific Relief Acts by Pollock and Mulla- Butterworths India.
Criminal Law
- Indian Penal Code – Ratanlal- Wadhwa & Company Nagpur.
Hindu law
- Hindu law – Mulla – Butterworths India. Hindu law and usage – Maine Bharat Law House.
Income Tax
- Income tax- Kanga and N.M.Tripathi Private Limited Income tax – Chaturvedi and Prithisara – Wadhwa & Company Nagpur.
Muslim law
- Principles of Mohammedan Law- Mulla- 1990 N.M.Tripathi Private Limited. Outlines of Mohammedan Law- Faizi- Oxford University Press.
Property Law
- Transfer of Property Act by Mulla -Buttersworth India.
Torts
- Law of Torts -Ratanlal Wadhwa & Company Nagpur.
Publishers and Books Sellers
The addresses of some of the publishers and books sellers:
- Butterworths India
- Eastern Law House
- Wadhwa & Company Wadhwa
- C.Sitaraman & Co.
- All India Reporter
- Nabhi Publications
- Taxmann
- Company Law Institute of India
Legal Education
The National Law School of India University is one of the premier schools of law in India. A list of universities offering law is found at http://goidirectory.nic.in/education.htm. A law degree is normally a five-year course taken after 12 years of school or a three year course taken after a bachelor’s degree.
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