Anaya Nolan
India's legal system has a long and complex history, evolving from ancient Hindu and Islamic law to the British common law system implemented during the colonial era. Today, India's legal system includes both Central laws and State laws. Ordinary law, also known as normal law, is a crucial aspect of the Indian legal framework. Distinguished from constitutional, organic, or other similar laws, ordinary laws are typically subordinate and govern areas beyond the scope of constitutional law. They are enacted and enforced by the competent authorities, shaping the relationships between citizens and the state. India's ordinary laws address civil and criminal matters, influencing the day-to-day lives of its citizens within the broader context of the country's legal tradition and historical developments.
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What You'll Learn
Ordinary law vs. constitutional law
In India, the Constitution is the fundamental legal text that governs the nation. It outlines the functioning of the government, the rights and responsibilities of citizens, and the relationship between the government and its citizens. The Constitution is the highest law in the jurisdiction and acts as the foundation of all law.
Ordinary laws, on the other hand, are the normal laws that are made and enforced by the competent authorities of the State. They govern civil and criminal matters, determining the relations between citizens and the State, and among citizens themselves. Ordinary laws are typically subordinate to constitutional laws and are generally easier to change. For instance, in a democracy, an ordinary law usually requires a simple majority in a congress, parliament, or other legislature, and then needs to be signed into law by the representative of executive power. However, it is important to note that the process leading to a legislative vote can vary significantly across different jurisdictions.
Constitutional law establishes governmental authority, powers, limitations, and grants of rights. It serves as the framework under which all other regulations, legislation, institutions, and procedures operate. The Constitution of a nation is considered the supreme law of the land, while ordinary laws are the specific rules that govern social and governmental institutions within that framework.
In the event of a dispute between a provision of the Constitution and an ordinary law, the latter shall control, and the former shall be deemed null and void. This highlights the importance of understanding the differences between constitutional law and ordinary law, especially in the context of India's legal system and polity.
In summary, while the Constitution provides the overarching principles, rights, and structure of governance, ordinary laws are the specific regulations enacted and enforced by the government to manage various aspects of societal and governmental interactions on a day-to-day basis.
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Ordinary law vs. organic law
In India, ordinary laws govern civil and criminal matters distinct from constitutional rights. Ordinary laws are generally distinguished from constitutional laws, organic laws, or other similar laws. They are made and enforced by the competent authorities of the State, and they determine the relations of citizens to the State and to one another.
An ordinary law is a normal law that is typically subordinate to constitutional and organic laws. Ordinary laws are generally easier to change than constitutional or organic laws, although this may not be the case in all jurisdictions. For example, the Constitutional Court of Spain has ruled that Spain's organic laws are not hierarchically superior to ordinary laws but rather apply to different matters. Ordinary laws often govern areas beyond the scope of constitutional or organic laws.
Organic laws, on the other hand, are a body of laws that form the foundation of a government, corporation, or any other organization's body of rules. A constitution is a particular form of organic law. For example, the organic laws of the United States of America include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the US Constitution. Under Article 46 of the Constitution of France, organic laws are a short, fixed list of statutes specified in the Constitution. These laws must be properly enacted by the Parliament of France following a special procedure and must be approved for constitutionality by the Constitutional Council of France.
In terms of the process of enacting laws, ordinary laws typically require a simple majority in a congress, parliament, or other legislatures, and then need to be signed into law by the representative of executive power. However, the process leading to a legislative vote can vary significantly from one jurisdiction to another. For example, in some bicameral systems, tax-related laws must begin in the lower chamber of the legislature. Similarly, under federal systems, ordinary laws may be created at the level of a sovereign state or by its constituent components.
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Ordinary law in Indian history
Indian law has evolved from religious prescription to the current constitutional and legal system. It has gone through various stages of evolution, including the Vedic period, the Islamic period, the British period, and post-independence.
During the Vedic period, the legal procedures for filing a case were called "vyavahara". The profession of lawyers or advocates was unknown during this period, and trial by jury and trial by ordeal were the two types of trials that existed. The main aim of the law during this time was to preserve "dharma", which means righteousness and duty.
After the Muslim conquest of the Indian subcontinent, Islamic Sharia law spread with the establishment of the Delhi Sultanate, Bengal Sultanate, and Gujarat Sultanate. In the 17th century, the Mughal Empire's sixth ruler, Aurangzeb, compiled the Fatawa-e-Alamgiri, which served as the main governing body in most parts of South Asia.
During the British Raj, there was a break in tradition, and Hindu and Islamic law were abolished in favour of British common law. The British East India Company introduced the common law system, which is based on recorded judicial precedents. The company's judicial functions expanded substantially after its victory in the Battle of Plassey, and by 1772 its courts had expanded beyond the three major cities of Madras, Bombay, and Calcutta (now Chennai, Mumbai, and Kolkata, respectively).
In 1857, control of the company's territories in India passed to the British Crown, leading to another significant shift in the Indian legal system. Supreme courts were established, replacing the existing mayoral courts, and these were later converted into the first High Courts through the Indian High Courts Act of 1862. The Indian Bar played a significant role in the independence movement, and B. R. Ambedkar, Jawaharlal Nehru, and M. K. Gandhi, all lawyers, were instrumental in formulating the Constitution of India, which came into effect on 26 January 1950.
The Constitution of India is the guiding light in all matters executive, legislative, and judicial in the country. It provides details on the administration of both the Union and the States and codifies the relations between the Federal Government and the State Governments. It also includes chapters on the fundamental rights of citizens and directive principles of state policy. Each State Government has the freedom to draft its own laws on subjects classified as state subjects.
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The process of making ordinary laws
In India, ordinary laws govern civil and criminal matters distinct from constitutional rights. Ordinary laws are generally distinguished from constitutional laws, organic laws, or other similar laws. Typically, ordinary laws are subordinate to constitutional and organic laws and are more easily changed. However, this may not be the case in all jurisdictions. For example, Spain's Constitutional Court has ruled that its ordinary laws are not hierarchically inferior to organic laws but rather cover different matters.
Jurisdictions may also have different means of proposing ordinary laws and may restrict which body can take the initiative for certain types of laws. For example, in some bicameral systems, tax-related laws must originate in the lower chamber of the legislature. In federal systems, ordinary laws may be created at the level of a sovereign state and its constituent components.
In India, the law has a long and varied history. Ancient India had a distinct tradition of law with an independent thought of legal theory and practice. The Dharmaśāstras played an important role, and the Arthashastra and Manusmriti were influential treatises considered authoritative legal guidance. With the Muslim conquest of the Indian subcontinent, Islamic Sharia law spread with the establishment of various Sultanates. Later, under the British Raj, Hindu and Islamic law were abolished in favour of British common law. During the eighteenth century, the East India Company established a dual legal system with English law in the exterior Presidencies and native law in the interior Mofussil.
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Ancient India's legal theory
Ancient India represented a distinct tradition of law, with an independent school of legal theory and practice. Law in India primarily evolved from customary practices and religious prescriptions, with the main aim of preserving "dharma", or righteousness and duty.
The ancient Indian legal system was characterised by the absence of lawyers and a duty-based society, where everyone from the king to the lowest in society was bound to fulfil their duty towards the rest of society. The king was also subject to the law and was expected to serve the people as God (Praja Vishnu), administering justice with love and reverence. The doctrine of "king can do no wrong" was not accepted in ancient India. The king's court was the highest court, where he was advised by learned Brahmins, ministers, and the Chief Justice.
There were three systems of substantive law recognised by the Court: the dharma-shastra, the arth-shastra, and custom, or sadachara/charitra. The dharma-shastra included laws and legal procedures, or 'vyavahara', which governed the duties and obligations of a king, or 'rajadharma'. This included the duty to organise court, listen to and examine witnesses, decide and enforce punishment, and pursue justice. The arth-shastra, meanwhile, was remarkably secular in its approach to the problems of government.
At a local level, village councils (Kulani) dealt with simple civil and criminal cases, while trade guilds were authorised to exercise jurisdiction over their members, such as traders and artisans. Family courts and puga assemblies, made up of groups of families in the same village, also decided civil disputes among family members. Judicial assemblies in villages handled minor criminal cases, while more serious criminal cases were presented before the central court, usually held under the king or royal authority.
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Frequently asked questions
Ordinary law is a term used to refer to a normal law, which is distinguished from a constitutional law, organic law, or other similar laws. Ordinary laws are typically subordinate to constitutional laws and are often easier to change.
In India, ordinary laws are made and enforced by the competent authorities of the State. Typically, an ordinary law must first obtain a simple majority in a legislature and then be signed into law by the representative of the executive power.
Ordinary laws often govern areas beyond the scope of constitutional laws. They determine the relations of citizens to the State and to one another, and they govern civil and criminal matters distinct from constitutional rights.
In 2024, the Indian state of Uttarakhand incorporated a uniform civil code, banning the Islamic practice of "Triple Talaq", which allowed a husband to divorce his wife by pronouncing the word "Talaq" three times.
No, the legal system in India has evolved over time. Before the Muslim conquest of the Indian subcontinent, various legal traditions existed, including Hindu and Muslim personal law, Company Regulations, and Islamic criminal law. After the Muslim conquest, Islamic Sharia law spread in the region. With the advent of the British Raj, Hindu and Islamic law were abolished in favor of British common law.
