Anaya Nolan
India is known for its lengthy constitution, which is the longest in the world, and its many laws. While some laws are strange and archaic, others are strict and rigorously enforced. Indian law is influenced by its ancient legal theory and practice, as well as British colonial rule, resulting in a complex legal system with various state and central laws. The country has been criticised for its inefficient and corrupt law enforcement, with calls for better education and sensitisation to create law-abiding citizens.
| Characteristics | Values |
|---|---|
| Contract law | Indian Contract Act, 1872 |
| Labour law | One of the most comprehensive in the world |
| Tort law | Governed by judicial precedent |
| Tax law | Income Tax Act 1961 |
| Marriage and divorce laws | Differ for each religion, except in Goa and Uttarakhand |
| Archaic laws | More than 300 from the colonial era |
| Population | Huge, difficult to control or monitor |
| Law enforcement | Inefficient and corrupt |
| Education | Poor |
| Elite rule-breaking | Common |
| Bribery | Common |
| Public displays of affection | Illegal |
| Suicide | Legal, but attempted suicide is illegal |
| Drinking laws | Vary from state to state |
| Kite-flying | Illegal without a permit |
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What You'll Learn
Law enforcement in India is weak and corrupt
India has a range of laws and law enforcement agencies at both the federal and state levels. However, law enforcement in the country has been criticised for its ineffectiveness and corruption.
One of the main issues is the lack of fear of enforcement among the population. This is due to weak enforcement, which allows people to ignore laws without consequence. For example, while Indian labour laws are among the most comprehensive globally, they are not enforced in practice, with labour rights unavailable to 80-90% of the labour force. The ineffectiveness of law enforcement is also evident in the country's struggle with corruption. While laws provide criminal penalties for corruption by officials, impunity persists due to lax enforcement, a shortage of trained police officers, and an overburdened and under-resourced court system.
Corruption is prevalent at various levels of Indian society, including among government officials, politicians, judicial officers, and law enforcement. A 2007 World Bank report estimated that eliminating corruption and associated regulatory stoppages could reduce travel time for a Delhi-Mumbai trip by about two days. The causes of corruption in India include excessive regulations, complicated tax and licensing systems, opaque bureaucracy, discretionary powers, and a lack of transparent laws and processes. For instance, complicated tax and licensing systems have led to corruption at the lower levels of bureaucracy, with bribes being paid to expedite services such as police protection, school admission, water supply, and government assistance.
The police have also been accused of misconduct and abuse of power, including complaints of unwarranted arrests, unlawful searches, torture, and custodial rapes. While India has adopted safeguards such as police accountability to the political executive and independent oversight authorities, there are concerns that these mechanisms may favour law enforcement and struggle to form independent and critical judgements. The Second Administrative Reforms Commission and the Supreme Court have recommended the establishment of an independent complaints authority to address cases of police misconduct impartially.
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Archaic laws remain from the colonial era
India has the longest written constitution, and therefore, a lot of laws that need to be followed. However, many of these laws are archaic and were inherited from the colonial era. The Indian judiciary relies on a large number of legislations that date back to colonial times.
The Indian government is currently compiling a list of hundreds of archaic colonial-era laws to scrap as part of its drive to modernise the country. Many of these laws date back more than 150 years and were passed by the British colonial government to legalise discrimination against groups that challenged its rule or prejudices. For instance, the Criminal Tribes Act of 1871 listed more than 60 tribal groups as 'habitual criminals', and adult males from these tribes were required to register with the police. Similarly, the Sonthal Parganas Act of 1855 removed all legal protection for members of the Sonthal tribe in Bengal and branded them an 'uncivilised race'. The Land Acquisition Act, which allows the government to deprive landlords of large tracts of their land, was also first enacted by the British and continues to be misused by the government for private projects disguised as public ones.
Some other archaic laws from the colonial era include the Police Act of 1861, which requires all officers to doff their caps in the presence of royalty, and the Indian Motor Vehicles Act of 1914, which was introduced to regulate the growing number of motor cars on Indian roads. The Madras High Court held that the Tamil Nadu Dramatic Performance Act, 1954, should be repealed as it violates Articles 14 and 19 of the Indian Constitution. The Indian judiciary also retained the criminalisation of homosexuality under Section 377 of the Indian Penal Code, which was introduced by the British in 1860, until 2018 when the Supreme Court struck it down.
Despite the reforms, hundreds of archaic laws from the colonial era remain on India's statute books. These include the criminalisation of adultery under Section 497 of the Indian Penal Code, sedition under Section 124A, and dress codes such as the coat-and-gown rule for lawyers.
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There are separate laws for different religions
India is known for its lengthy written constitution, which includes a multitude of laws that must be followed. The country's legal system is a combination of common law, statutory law, and customary law, with a strong influence from its historical background.
In India, separate laws govern the personal affairs of different religious communities. While the Indian Constitution guarantees freedom of religion and equality before the law, there are unique considerations for specific faiths. For instance, Hindus, including Sikhs, Jains, and Buddhists, have distinct laws pertaining to marriage, divorce, and inheritance. These communities traditionally view cows as sacred, and recent laws regarding cow slaughter have been a point of contention.
Muslims in India also have their own legal considerations. Since 1937, they have had the option of resolving family and inheritance matters in Islamic courts, known as dar-ul-qaza, which operate under Shariah principles. Certain practices, such as the Islamic "Triple Talaq" divorce custom, have been banned by the Supreme Court of India, marking a significant reform and a victory for women's rights activists.
Additionally, several Indian states have passed Freedom of Religion Acts to prevent forced religious conversions, particularly to Christianity. These laws have been challenged as potentially violating the right to freedom of religion guaranteed by the Indian Constitution.
The existence of separate religious laws in India highlights the country's attempt to balance religious freedom and equality before the law. While it strives to respect the traditions and beliefs of diverse faiths, the implementation and interpretation of these laws can be complex and sometimes controversial.
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Indian tax law is complex and burdensome
India is known for its complex and burdensome tax laws. With a large number of central and state laws, the country has a lot of regulations that its citizens need to follow. Indian tax laws are governed by various factors, including the residential status of an individual, their income, and the type of tax being levied. For example, under the Income Tax Act 1961, income tax is levied on residents based on their worldwide income, while non-residents are taxed only on income accrued or received in India. The tax structure in India has been criticised for being too complicated to understand and explain, even for well-educated individuals such as CAs and tax consultants. The numerous rules and compliances set by the finance ministry have created an unnecessary burden, especially for business owners who must navigate through TDS and TCS rates and comply with GST.
The complexity of India's tax laws has been attributed to various factors. Some believe that the laws are intentionally made cumbersome to provide job security for professionals such as CAs, income tax officials, and the judiciary. Others argue that the bureaucracy creates a government-sponsored scam, allowing those in power to break the rules and bribe their way out. The language used in the laws is also confusing, with too many clauses and exceptions, making it challenging even for language models to understand.
In addition to income tax, there are other taxes levied by different levels of government in India. Customs and excise duties are levied by the Central Government, while sales tax is levied at the state level under VAT legislation. The introduction of GST in 2017 replaced excise duties and VAT, further adding to the complexity of the tax system. The authority to levy taxes in India is derived from the Constitution, which allocates the power to impose taxes between the Centre and the State. Article 265 of the Constitution restricts the levying or collection of taxes without the authority of law, ensuring that each tax has a corresponding law passed by the Parliament or State Legislature.
Apart from the complexity, Indian tax laws have also been criticised for their lack of flexibility. The World Bank has criticised Indian labour laws, stating that government approval is needed for dismissals, resulting in an inflexible system. Additionally, there is a large informal sector of workers in India, comprising 80-90% of the labour force, who do not have access to labour rights and where laws are not effectively enforced.
The inefficiency and corruption in law enforcement, coupled with a lack of education among citizens, have been identified as significant challenges contributing to the issues with strict laws in India. While some argue for stricter laws, others believe that the focus should be on improving law enforcement, reducing corruption, and providing large-scale education to sensitise citizens towards abiding by the existing laws.
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Indian labour laws are comprehensive but criticised as inflexible
India has a long history of labour laws, which are closely connected to the country's independence movement and the campaigns of passive resistance that led to independence in 1947. The Constitution of India, created in 1950, embedded a series of fundamental labour rights, including the right to join and take action in a trade union, the principle of equality at work, and the aspiration to create a living wage and decent working conditions.
Over the years, the Indian government has sought to ensure a high degree of protection for workers, and there are now about 40 laws regulating wages, industrial relations, social protection, security in the workplace, and working conditions. In 2019 and 2020, the Indian parliament passed four labour codes that will consolidate 44 existing labour laws. These laws cover wages, labour relations, social security, and occupational safety.
However, Indian labour laws have been criticised as being inflexible and lacking modernisation. In 2005, ex-Prime Minister Manmohan Singh said that new labour laws were needed, but no reforms were made. In 2008, the World Bank criticised the complexity and lack of flexibility in Indian regulations. The World Bank's criticism was based on the requirement for government approval for employee dismissals, which can lead to lengthy legal processes. For example, it took two decades for the Supreme Court of India to overturn the Bombay High Court's decision that dismissing an employee for repeatedly sleeping on the factory floor was illegal.
Some have disputed the notion of Indian labour laws being inflexible. Radhicka Kapoor, a Senior Fellow at the Indian Council for Research on International Economic Relations, points to a 2019 paper by Aditya Bhattacharjea, Professor at the Delhi School of Economics, which traces the origins of this notion and highlights the technicalities and inaccuracies of the index that was used to measure regulatory variations across Indian states. Bhattacharjea concludes that the index was used incorrectly by researchers to reinforce the point that Indian labour laws are inflexible, which has distorted the policy implications of their findings.
In addition to labour laws, India has a wide range of other laws that govern various aspects of society, from strange and outdated laws that prohibit flying a kite without a permit or public displays of affection, to more substantial laws such as those that govern contract law, tax law, and tort law. However, it is important to note that the true deterrence to crime is not the fear of penalty but the fear of enforcement, and India struggles with efficient and unbiased law enforcement.
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