Indian Law: A Comprehensive Overview

Indian law refers to the legal practices and institutions of India. It has a long and complex history, with ancient India representing a distinct tradition of law, and foreign laws, such as Islamic Sharia law and English common law, having been received and grafted onto indigenous legal systems over time. The legislative process in India involves the introduction of a Bill in either the Lok Sabha or the Rajya Sabha, where it undergoes discussion, committee review, and amendment before becoming law. Indian law covers a range of areas, including criminal law, administrative law, labour law, tax law, and family law, with Hindu law being the personal law applying to the majority of the population.

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Foreign influence on Indian law

India's legal system is a complex mix of civil law, common law, customary law, religious law, and corporate law. The country's legal framework has been influenced by various foreign legal traditions over the centuries, including Islamic law, Turkish law, and British common law during the colonial era.

During the Muslim conquest of the Indian subcontinent, Islamic Sharia law was established in several sultanates, including Delhi, Bengal, and Gujarat. In the 17th century, the Mughal Empire, then the world's largest economy, 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.

With the advent of the British Raj, there was a break in tradition, and Hindu and Islamic law were abolished in favour of British common law. The East India Company was granted the power to make laws to govern its "official representatives" in India, and its influence and judicial authority grew rapidly. As a result, Indian legislation today remains strongly influenced by British and American law, and judges often rely on foreign court rulings, particularly in areas such as human rights, privacy, gender justice, child custody, family disputes, and cross-border business dealings.

Indian tort law, for example, is generally derived from English law, but with some key differences. Indian tort law includes remedies for constitutional torts, which address government actions that infringe upon constitutional rights, and it imposes absolute liability on businesses engaged in hazardous activities. In court cases, Indian judges have the freedom to refer to foreign judgments and precedents, especially from other common law jurisdictions such as the UK, Australia, and Canada. However, they must carefully examine the structural similarities and applicability of foreign rulings to the Indian context, giving due consideration to local norms, conditions, and India's distinct constitutional framework.

While Indian courts can apply foreign law in certain instances, they have also asserted their authority to apply Indian law by 'default' in international civil and commercial disputes unless there is a clear insistence on applying the law of another country. This highlights the complex interplay between foreign influence and the Indian legal system's autonomy in interpreting and applying the law within its jurisdiction.

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Islamic and Hindu law

Indian law has a long and complex history, with the country's legal system shaped by various influences over centuries. Islamic and Hindu law have played significant roles in the evolution of India's legal landscape.

The term "Hindu law" emerged during the colonial era when British officials, in consultation with Mughal rulers, decided against implementing the European common law system in India. This decision resulted in the separate legal codes for Hindus and Muslims, with Hindus governed by "Hindu law" and Muslims by Sharia law or "Muslim law". However, it is important to note that the term "Hindu law" is a colonial construct, and Hindu tradition does not inherently align with the concepts of ius or lex.

Hindu law, as interpreted by the British, was derived from Dharmaśāstra, specifically the treatise Manusmriti. The British misunderstood these Sanskrit texts as codes of law, whereas they were actually jurisprudence commentaries and theoretical reflections on practical law rather than statements of the land's legal code. The early period of Anglo-Hindu Law (1772-1828) drew from Muslim law practices and involved translating and interpreting Dharmaśāstra texts through the lens of English legal categories. This process was facilitated by court pandits who assisted British judges, similar to the role of Qadis in interpreting Islamic law.

Hindu law, governed by the Hindu Succession Act of 1956, allows for the adoption of children under the Hindu Adoption and Maintenance Act of 1956. It also recognises the right of a Hindu to dispose of their property according to their will, testamentary succession, and grants equal rights to women in matters of property and inheritance. Other areas governed by Hindu law include divorce, marriage, minority, the rights of the son, and pious obligation.

Islamic law in India, on the other hand, is based on Sharia principles. One notable difference between Islamic and Hindu law is the concept of adoption. Islamic law does not recognise adoption, as seen in the case of Mohammed Allahabad vs Mohammad Ismail, where the court affirmed that adoption is not a concept under Mohammedan law. Islamic criminal law and Turkish law also hold significant influence in India due to the historical Muslim conquest and rule in the region.

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Indian criminal law

In the 18th century, the East India Company sought to establish a more amicable ruling system that moved away from solely English Common Law. This led to the creation of separate legal systems for the interior (Mofussil) and exterior (Presidencies) governments. The Presidencies were governed by English Law and handled crimes committed by Englishmen, while the Mofussil dealt with native law, including Hindu and Muslim personal law, Company Regulations, and Islamic criminal law.

The Indian Penal Code (IPC), first drafted in 1834 by the First Law Commission chaired by Thomas Babington Macaulay, played a significant role in codifying Indian criminal law. The IPC was based on a simplified version of contemporary English law, the Napoleonic Code, and Edward Livingston's Louisiana Civil Code of 1825. After a careful revision process, the final draft of the IPC was presented to the Legislative Council in 1856. However, it only became part of the statute book of British India after the Indian Rebellion of 1857.

Over time, the IPC has undergone several amendments to adapt to the changing needs of Indian society. For example, Section 377, which criminalised same-sex relations, was decriminalised in 2018 by the Supreme Court. Similarly, Section 309, which dealt with suicide attempts and provided for imprisonment, was also decriminalised following long-standing demands and recommendations from the Law Commission of India.

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The legislative process

Examination by Standing Committee

After the introduction of a bill, the Presiding Officer of the House (Speaker of the Lok Sabha or Chairman of the Rajya Sabha) can refer it to a Standing Committee. These committees, comprising members of Parliament, examine the general principles, clauses, and details of the bill. They may also solicit public comments and opinions on the bill, allowing for democratic participation in the legislative process. The committees then submit their reports to the respective Houses for further consideration.

Readings and Passage in Parliament

A bill undergoes three readings in each House of Parliament. The First Reading has already been described. The Second Reading involves a more detailed examination of the bill, clause by clause, and may include debates, amendments, and discussions. The Third Reading is the final stage, where the bill, with any amendments, is voted on. For a bill to pass, it must be approved by a majority in both the Lok Sabha and the Rajya Sabha.

Assent by the President

Once a bill is passed by both Houses of Parliament, it is then presented to the President of India for assent. The President's assent is crucial, as it signifies the final approval for the bill to become an Act of Parliament. However, the President may exercise a veto or withhold assent, known as a pocket veto, as per their discretion. If the President does not assent, the bill is returned to Parliament for reconsideration. If Parliament passes the bill again, the President must give assent, or the bill can be modified as a constitutional amendment bill to compel presidential assent.

Types of Bills

It is important to note that there are different types of bills in the Indian legislative process, each with specific requirements and procedures:

• Ordinary Bills: These relate to matters other than finance or the constitution and can be introduced in either the Rajya Sabha or the Lok Sabha.
• Financial Bills: These pertain to financial matters, such as taxes, and can only be introduced in the Lok Sabha. The Rajya Sabha can make recommendations, but the Lok Sabha is not bound to accept them.
• Constitutional Amendment Bills: These seek to amend the Constitution of India and require a special majority in both Houses of Parliament and the legislatures of at least half of the states.

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The Indian constitution

The Constitution of India is the supreme legal document of India and the longest written national constitution in the world. With 12 schedules and five appendices, it has been amended over 100 times; the latest amendment was given assent on 28 September 2023. The document lays down the framework that demarcates fundamental political codes, structures, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It also espouses constitutional supremacy.

The Constitution of India repealed the Indian Independence Act 1947 and the Government of India Act 1935 when it came into effect on 26 January 1950. India ceased to be a dominion of the British Crown and became a sovereign, democratic republic with the constitution. Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, 393, and 394 of the constitution came into force on 26 November 1949, and the remaining articles became effective on 26 January 1950, which is celebrated every year in India as Republic Day.

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