Anaya Nolan
The sources of law in India are varied and wide-ranging, from customs, religion, and community-driven codes of conduct to international deals and agreements. The main sources of law in India are the Constitution, statutes, customary law, and judicial decisions of superior courts. Legislation is also a primary source of law in India, with the term derived from the Latin words 'Legis', meaning regulation, and 'latum', meaning making. The legislature is framed by the parliament in the form of new acts, laws, and amendments to old laws.
| Characteristics | Values |
|---|---|
| Main sources of law | The Constitution, statutes, customary law, and judicial decisions of superior courts |
| Subordinate legislation | Supreme legislation, which originates from the sovereign strength of the nation |
| Custom | Traditions and rituals practised by the community, such as laws relating to marriage and divorce |
| Judicial precedents | Adhering to earlier decisions made by higher courts in similar cases |
| Persuasive sources | Foreign judgements, principles of morality, equity, justice, and professional opinions |
| Material sources | Sources from which the law gets its content but not its validity |
| Formal sources | Sources that give the law its validity |
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What You'll Learn
The Constitution
The independence of the judiciary is a basic feature of the Constitution, which cannot be changed by the legislature or the executive. Judicial review is adopted from the United States, and in India, it is dealt with in Article 13. According to this article, all pre-constitutional laws that conflict with the Constitution shall be deemed ineffective until an amendment resolves the conflict.
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Statutes
Legislation in India is divided into two parts: supreme legislation and subordinate legislation. Supreme legislation is the parent law that originates from the sovereign strength of the nation. Subordinate legislation is dependent on the supreme legislation for its validity and existence.
Legislation in India has a wide ambit and is used to regulate, authorize, enable, provide funds, prescribe, sanction, grant, declare, or restrict. It is one of the most important sources of law in jurisprudence.
The Indian legal system has been influenced by various factors throughout its history, including customs, religion, logical critiques, equality, values, and international treaties and agreements. After the Muslim conquest of the Indian subcontinent, for example, Islamic Sharia law spread with the establishment of various Sultanates. During the 17th century, Mughal Emperor Aurangzeb compiled the Fatawa-e-Alamgiri with several Arab and Iraqi Islamic scholars, which served as the main governing body in most parts of South Asia.
In addition to the influence of Islamic law, Indian law also follows principles of English law in most areas, except for the law of trusts. Trust law in India is codified in the Indian Trusts Act of 1882, which does not recognize the concept of "double ownership".
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Customary law
Despite their significance, the actual application of customary laws on the ground has been limited in some cases due to a lack of awareness or reluctance to acknowledge these rights by certain officials. Furthermore, customary laws face criticism due to concerns about social inequalities and discrimination. The Supreme Court of India has played a pivotal role in shaping the applicability of customary laws within the Indian legal framework, emphasising that their legitimacy should align with principles of justice, equity, and good conscience.
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Judicial decisions of superior courts
The sources of law in India are varied and include legislation, customs, and judicial precedents. Judicial precedents, also known as case law, are the decisions made by courts that become a source of law for similar cases in the future. This is based on the doctrine of 'stare decisis', which means adhering to and relying on earlier decisions made by higher courts.
In India, the Supreme Court is the highest judicial forum and its decisions are binding on all other courts within the country. The Supreme Court of India is known as “the guardian of the constitution” and its rulings are final and cannot be challenged. The Supreme Court can declare laws passed by the parliament or state legislatures as unconstitutional and void if they are in contravention of the constitution.
The Supreme Court of India has original, appellate, and advisory jurisdictions. It has the power to decide disputes between the centre and the states, between two or more states, and with foreign countries. It also serves as a court of appeal from the High Courts and other subordinate courts. The Supreme Court has the power to review its own judgments and decisions and can also advise the president of India on legal matters referred to it.
The High Courts of India are the principal civil courts of original jurisdiction and can issue directions, orders, or writs, including writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari for enforcing fundamental rights. The High Courts have supervisory jurisdiction over all subordinate courts within their respective territories.
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Legislation
The legislature is framed by the parliament in the form of new acts, new laws, and the repeal and amendment of old laws. The procedure for this is prescribed in the constitution of India. Legislation is further divided into two parts: supreme legislation and subordinate legislation.
Supreme legislation is the parent law that originates from the sovereign strength of the nation. It is the primary source of law in India. Subordinate legislation, on the other hand, is dependent on supreme legislation for its validity and existence. It is derived from the supreme legislation and is thus a secondary source of law in India.
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Frequently asked questions
The main sources of law in India are the Constitution, statutes, customary law, and judicial decisions of superior courts.
The Constitution of India includes the Citizenship Act of 1955 and gives established status to the precedent in respect of law pronounced by the Supreme Court of India.
Customary law includes community-approved codes of conduct, religious charters, and rituals. In India, laws relating to marriage and divorce are mostly developed from customs followed by different religious communities.
Judicial decisions refer to the legal principles decided upon by superior courts that are binding on subordinate courts.
