Gavin Howe
The legal system of India is a complex mix of civil law, common law, customary law, religious law, and corporate law, influenced by its colonial past and the legislation introduced by the British. The fundamental unit of Indian law is the Constitution, which establishes India as a 'Sovereign Socialist Secular Democratic Republic' and outlines the country's commitment to the rule of law. This document grants all citizens Fundamental Rights, which are justiciable and enforceable, and empowers an independent judiciary to invalidate any legislation or government actions that violate it.
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What You'll Learn
The Indian Constitution
The Constitution of India is the fundamental unit of Indian law and the supreme legal document of the country. It is the world's longest written national constitution for a sovereign nation, with 395 articles in 22 parts and 8 schedules, totalling about 145,000 words. It is also the world's most frequently amended national governing document, having been amended more than 100 times since its enactment.
The Constitution lays down the framework for the fundamental political code, structure, procedures, powers, and duties of government institutions. It also sets out the fundamental rights, directive principles, and duties of citizens. The Constitution prescribes a federal structure of government, with a clear separation of legislative and executive powers between the Federation and the States. Each State Government has the freedom to draft its own laws on subjects classified as state subjects, while laws passed by the Parliament of India on central subjects are binding on all citizens.
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The Rule of Law
The Indian Constitution is the supreme legal authority in India, establishing the country as a 'Sovereign Socialist Secular Democratic Republic' with a parliamentary form of government. The Constitution binds the legislative, executive, and judicial organs of government, granting all citizens Fundamental Rights and empowering the independent judiciary to invalidate any legislation or government action that violates it.
The Fundamental Rights enshrined in the Indian Constitution are the basic human freedoms that every Indian citizen has the right to enjoy for a proper and harmonious development of their personality and life. These rights are enforceable by the courts and apply universally to all citizens, irrespective of their race, place of birth, religion, caste, or gender. They are influenced by the American Bill of Rights, the French Declaration of the Rights of Man and the Citizen, and the ideas of European political thinkers like John Locke, Rousseau, and Montesquieu, who advocated for individual liberties and natural rights.
The Fundamental Rights in the Indian Constitution include the Right to Equality, which ensures that all individuals have equal rights and opportunities, irrespective of their background. It also includes Freedom of Speech and Expression, which guarantees six fundamental freedoms with reasonable restrictions, and the Protection in Respect of Conviction for Offences, which provides four key safeguards to individuals, including the prohibition of ex post facto law and double jeopardy.
The Constitution also contains provisions for the independence of the judiciary, with a Supreme Court Judge removable only by an order of the President passed after an address in each House of Parliament and supported by a majority of the total membership of that House. The Rule of Law, an integral part of the Indian Constitution, delivers four universal principles: accountability, just law, open government, and accessible and impartial justice. These principles are the cornerstone of liberal democracy.
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Sources of Indian Law
India's legal system is a mix of common, Muslim, and customary law. The main sources of law in India are the Constitution, statutes, customary law, and case law. The Constitution is the supreme legal authority, which binds the legislative, executive, and judicial organs of the government. It establishes India as a 'Sovereign Socialist Secular Democratic Republic' with a parliamentary form of government. The Constitution grants all citizens Fundamental Rights and empowers the independent judiciary to invalidate legislation or government actions that violate it.
The laws passed by Parliament may apply throughout all or a portion of India, whereas the laws passed by state legislatures normally apply within the borders of the states concerned. There are about 891 Central laws as per the online repository hosted by the Legislative Department, Ministry of Law and Justice, Government of India. Additionally, there are many State laws for each state, which can also be accessed from the same repository.
The first known source of law in India was classical Hindu law or "Dharma," which deals with legal and religious duties. The main sources of Hindu Law are the Veda, Smriti, and Aâchâra. The Rigveda, Yajurveda, Samaveda, and Atharvaveda are the four Vedas, consisting of hymns, praises, customs, and religious obligations. Smritis define the obligations, practices, and teachings of religion that an individual needs to practise in society.
During the reign of the Mughal Empire, Mahakuma-e Adalat was found to provide justice to the people. Quran, Sunna and Hadis, Ijma, and Qiyas were the primary sources of Muslim law. Fiqh-e-Firoz Shahi and Fatwai-i-Alamgiri were the principles governing the judicial procedure.
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The Indian Court System
The Indian judiciary is a single integrated system. It is divided into two parts: the superior judiciary and the subordinate judiciary.
The superior judiciary consists of the Supreme Court and the High Courts. The Supreme Court is the highest court in India and hears appeals against judgments of High Courts. It also has original jurisdiction in a wide range of matters, including the enforcement of fundamental rights. The Supreme Court has the power to issue directives and fill legislative gaps until the legislature acts. The Code of Criminal Procedure (CrPC) mentions the power of the various criminal courts. The Code of Civil Procedure (CPC) governs the procedures to be followed by civil courts.
There are 25 High Courts in India, which exercise civil or criminal jurisdiction only if subordinate courts in the state are not competent to try matters. High Courts may also take appeals from lower courts.
The subordinate judiciary consists of lower courts, which are under the supervision of the High Courts. This includes District Courts, which are established by State Governments for each district or group of districts based on caseload and population density. District Courts are presided over by District Judges, with Additional District Judges and Assistant District Judges appointed based on caseload. District Courts are the highest civil courts in a district and exercise both judicial and administrative functions.
Subordinate courts also include Lok Adalats, or Village Courts, which provide a system for alternative dispute resolution in villages. Quasi-judicial tribunals and commissions are independent of the judicial and executive branches and were created to lessen the burden on the court system and reduce civil case delays. Examples include the Central Administrative Tribunal, the National and State Human Rights Commissions, and the Competition Commission of India.
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Fundamental Rights
The Fundamental Rights in India are enshrined in Part III (Article 12–35) of the Constitution of India. These rights guarantee civil liberties that enable all Indian citizens to lead their lives in peace and harmony. They are deemed fundamental as they are essential for all-round development, including material, intellectual, moral, and spiritual growth. These rights are protected by the fundamental law of the land, i.e., the Constitution, and are enforceable by the courts.
The Fundamental Rights in India have their origins in various sources, including England's Bill of Rights, the United States Bill of Rights, and France's Declaration of the Rights of Man. The first demand for fundamental rights in India came in the form of the "Constitution of India Bill" in 1895, also known as the Swaraj Bill. This bill emerged during the rise of Indian nationalism and the growing demands by Indians for self-government. It addressed issues such as freedom of speech, the right to privacy, and the right to franchise.
The Fundamental Rights in India encompass six broad categories, which are:
- Right to Equality: This includes equality before the law, prohibiting discrimination based on religion, race, caste, sex, or place of birth, and ensuring equality of opportunity in employment.
- Right to Freedom: This covers freedom of speech and expression, assembly, association or union, movement, residence, and the right to practice any profession or occupation. However, some of these rights are subject to the security of the state, friendly relations with foreign countries, public order, and decency or morality.
- Right against Exploitation: This prohibits all forms of forced labour, child labour, and human trafficking.
- Right to Freedom of Religion: This guarantees the freedom to practice and propagate religion, providing that religious activities do not violate public order, morality, or health.
- Cultural and Educational Rights: These rights protect the cultural and educational rights of ethnic and religious minorities. They allow minorities to preserve their languages and establish and administer their own educational institutions.
- Right to Constitutional Remedies: This right ensures that citizens can seek legal redress if their fundamental rights are violated. The Supreme Court and High Courts can issue writs under Articles 32 and 226 of the Constitution, respectively, to enforce these rights.
It is important to note that the Right to Property was removed as a Fundamental Right through the 44th Constitutional Amendment in 1978. However, in 2009, the Right to Education Act was added, reflecting the dynamic nature of India's Fundamental Rights.
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Frequently asked questions
The fundamental unit of Indian law is its Constitution, which establishes India as a 'Sovereign Socialist Secular Democratic Republic' with a parliamentary form of government.
The Indian Constitution has several key features, including:
- A federal system of governance between the Union and the States.
- Separation of powers between the legislative, executive, and judicial organs of government.
- Free and fair elections.
- Equality before the law.
- Secularism, recognising freedom of conscience and religion.
- A single integrated system of courts, with the Supreme Court at the apex, followed by High Courts and District Courts.
The Indian Constitution originally included seven Fundamental Rights, but this was reduced to six after the 44th Constitutional Amendment in 1978. These rights include:
- The Right to Equality, ensuring equal rights and opportunities for all individuals.
- Freedom of Speech and Expression.
- Freedom of Religion.
- Freedom of Assembly and Association.
- Protection in Respect of Conviction for Offences, including no double jeopardy and limits on penalties.
- Right to Education, added in 2008.
