Indian Legal System

Fundamentals of Law and Legal Systems

2014-15 Dr. R. Rajesh Babu

Outline of the Sessions

Fundamentals of Law and Legal Systems Law of Contract and special contracts Company law Product Liability and Consumer Protection Laws Commercial Dispute Resolution Intellectual Property Rights

Contents
Law and Legal Systems Indian Legal System Constitution as a framework for Indian Legal System Fundamental Rights and Freedoms Constitutional Remedies Hierarchy of Laws and Courts

Law, like war, appears to be an inescapable fact of the human condition

Law defined no agreed definition

Law is an officially recognized, enforceable system of rules. Natural law vs. Positive law System of rules made by the state, To regulate behavior in a society Imposed and enforcement by the Sovereign (State)

General characteristic of Law

1.

2.
3.

Are all rules law?

Rules made by the Sovereign/State:

Acts of the Parliament/legislature. Are Order, bylaws, etc., law?

Rules made outside the legal system:

Contract; Memorandum and Articles of association of a company; Rules of a trade unions; Rules of cooperative societies etc.

Rules that are not part of law:

Rules of private clubs; cricket rules, Rules within family etc.

Law vs. Morality

Law is the collective morality of society Can there be law devoid of morality? Universally recognized values/HR?

Apartheid? Nuremberg trial: crime against humanity!

Can law encroach on right to privacy in the name of morality/religion? Abortion; homosexuality; euthanasia!!!

Car: 2000 lbs for $2000 Nothing else would compete with Datsun & VW
Product Objectives:

23 months to roll-out (not 45)

1. True Subcompact : Size & Weight

2. Low Cost of Ownership Initial price, Fuel consumption, Reliability Serviceability 3. Clear Product Superiority Appearance, Comfort, Features, Ride and Handling, Performance

Gas Tank
Behind Rear-Axle Tank
Pros: More Luggage space Industry standard felt it was safer Con: Not as safe in rear-end collisions

Over-the-axle-tank
Pro: Performed well in rear-end collisions Cons: Long round-about filler pipe Closer to passengers in back seat Higher center of gravity Reduced trunk space

Cost/Benefit Analysis: Ford Pinto

Savings:

180 burn deaths, 180 serious burn injuries, 2100 burned vehicles $200,000 per death, $67,000 per injury, $700 per vehicle (180 X $200,000) + (180 X $67,000) + (2,100 X $700) = $49.5 million

Unit Cost

Total Benefit

Sales 11 million cars, 1.5 million light trucks Unit Cost $11 per car, $11 per truck Total Cost 12.5 million X $11 = $137.5 million

$137.5 million $49.5 Million Difference $ 88.0 mil

Ford Pinto, Lees Car: 2000 lbs for $2000

Grimshaw v. Ford Motor Co. (1981) 119 CA3d 757

Richard Grimshaw

13-year old passenger in Sandra Gillespies 1971 Pinto Struck from behind; exploded; badly burned over 90% of his body; 20 years reconstructive surgery. Awarded $125 million in punitive damages $124 million profits made since Ford Pintos introduction

What is a legal system?

Set of legal principles and norms to protect and promote a secure living in a society.
It recognizes rights and duties of people and provides the ways and means of enforcing the same. 192+ countries = 192+ legal systems Different legal systems may have different sets of principles and values, making it different from one another.
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Different types of legal systems

Common law: case-centred and hence judgecentred, allowing scope for a discretionary, pragmatic approach to the particular problems that appear before the courts (UK and US) Civil law: statute based - codified body of general abstract principles which control the exercise of judicial discretion (Continental Europe, Japan etc)
Religious law ("Sharia"): Religious law (KSA) International Legal system: Law of nations Res Nullius (Terra Nullius) and Res Communis
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Civil law Common law Bijuridical (civil and common law) Customary law Islamic Law

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Foundation of Legal Systems

1.Ignorantia Juris Non Excusat
2. Presumption of Innocence

3. Double Jeopardy
4. Self incrimination

5. Ex Post Facto law

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Indian Legal System

Common Law traditions, and religious/customary norms in personal law. Indian Constitution provides the general Framework for the distribution of the power between three branches of Government; between States; and Rights and Duties of the citizens vis--vis the State, and Remedies for violations

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Indian Constitution: Division of Powers and

the power to enact laws

Union List. Parliament competent to make laws. State list: exception where Parliament could legislate: Appointment of Governors (Arts. 155 and 156); National Interest (Art. 249), Form new State, alter boundaries (Art. 3) and Emergency Powers (Arts, 352, 356 and 360) Concurrent list: Laws passed by parliament shall prevail over law made by State (doctrine of eclipse). Residue list: On matters not included in the State List or the Concurrent List, only Parliament can legislate.
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Hierarchy of Laws
The Constitution
Act/Rules ultra virus the Constitution is VOID

Acts of Parliament and States

Subordinate legislation
Executive Laws through delegated Power (Rules, Bylaws, Regulations, Orders)
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Applicability of Laws
Laws made by Parliament may extend throughout or in any part of the territory of India State laws apply only within its territory. Hence, variations are likely to exist between State in provisions of law relating to matters falling in the State and Concurrent Lists. Whether law made by Parliament applicable to the State of J&K?

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Rights and Duties of Individuals (Part III and IV)

Fundamental Rights (Part III) primary feature of a democratic State; Prohibition against the State from taking away or abridging any of these rights Directive Principles of State Policy (Part IV) contains the aim and objectives to be taken up by the states in the governance of the country Fundamental Duties of the Citizens (Part IVA) Justifiable and non-justifiable
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Fundamental Rights (Part III)

Right to equality (Arts 14-18): Right to freedoms (Arts 19-22) Right against Exploitation (Arts 23-24) Right to freedom of Religion (Arts 25- 28) Cultural and educational rights (Arts 29-30) Right to Constitutional Remedies (Arts 3235)
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Equality before law (Arts 14-18):

Among equals, the law should be equal and should be equally administered like should be treated alike. Permits reasonable classification Eg. Reservations in public employment; education; special provisions for women
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Freedom of Trade or Business

(Article 19(1)(g)) Guarantees all citizens the right to practice any profession, or to carry on any occupation, trade or business. Available only for citizens not persons Freedom of Trade, commerce and Intercourse (Article 301-307) ensures removal of impediments in the way of interstate and intra-state trade (can be claimed by anyone, including corporate person)

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Reasonable restrictions Art 19 (6)

In the interest of general public - public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the constitution prescribing professional or technical qualifications State monopolies: enabling the State to carry on any trade or business to the exclusion of citizens wholly or partially (added by the 1st Amendment)
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Some illustrations/cases were freedom of trade or business was involved. Regulation and prohibition of liquor Closure of non-profit making industry State lotteries not trade or business, but gambling Act guaranteeing minimum wages or closing of shops for a day in a week; clean environment MC Mehta cases

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Constitutional Remedies or Enforcement of Fundamental Rights

Writ Jurisdiction Any person could approach the Supreme Court (Art. 32) or the High Court (Art. 226) on violation of fundamental rights. Habeas corpus, Mandamus, Prohibition, Quo warranto and Certiorari Remedies are available against the State not against Individuals or companies etc.
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Supreme Court

Jurisdiction
1. Pecuniary, Subject matter, and Territorial 2. Original, Appellate and Advisory

Precedent
High Courts
Stare decisis Obiter dicta

District and Sessions Courts

Civil Judge (Junior Division)

Chief Judicial Magistrate

Civil Judge (Junior Division)

(Civil Procedure Code)

Judicial Magistrate
(Code Criminal Procedure)
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Special Courts and Tribunals

Company Law Board Central Administrative Tribunals (CAT) State Administrative Tribunals Consumer Courts Motor Vehicle Claims Tribunal (MACT) Family Courts Debts Recovery Tribunal Inter-State Water Dispute Tribunal (Cauvary)

Article 136, Supreme Court can entertain Special Leave Petition (SLP)
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Right to Property

Article 19f of the Constitution guaranteed a citizen, the fundamental right to acquire hold and dispose of property. Article 31 - Cannot be deprived of property unless it was acquired by the State, under a law (Eminent Domain). Property owned by an individual or a firm could be acquired by the State only for public purposes and upon payment of compensation determined by the law. Article 31 has been modified six times -- beginning with the First amendment in 1951 -- progressively curtailing this fundamental right. Finally in 1978, Article 19f was omitted and Article 31 repealed by the 44th Amendment 29

Article 300A was introduced in Part XII making the right to property only a legal right (no more a fundamental right). This provision implies that the executive arm of the government (civil servants and the police) could not interfere with the citizen's right to property. However, Parliament and state legislatures had the power to make laws affecting the citizens' right to property.

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Why?

Article 39 (b) and (c) of the Directive Principles of State Policy that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few. The SC struck down the land reforms laws saying that they transgressed the fundamental right to property guaranteed by the Constitution. Parliament reacted by relegating property rights
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Further readings:
1.

2. 3.

4.

J.N. Pandey, Constitution of India (2006) (for basic understanding) Indian Legal System, Indian Law Institute 2007 K. Sankaran and U.K. Singh, Towards Legal Literacy: An Introduction to Law in India, OUP 2007 D.D. Basu, Shorter Constitution of India, 1994.

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