Mr. Ramakrishnan is a lawyer of over 15 years standing practicing in Madras (now Chennai), South India. He specialises in corporate law and arbitration. He has a degree in commerce from the University of Madras and a degree in law from the University of Bangalore. He is a specialist editor in ‘Ramaiya’s Commentaries on the Companies Act’. He has also edited books on the Madras High Court Rules. He has contributed articles on corporate law and taxation to many law magazines.
India is situated in South Asia. It is a democratic republic. The striking features of India are of course its large population (1 billion) its diversity in religion and culture (almost all the major world religions are found here) and its absolute commitment to democracy.
Historically India was a collection of kingdoms and empires constantly at war with each other. The ancient empire of King Ashoka (a Buddhist) and the later Mughal Empire united a substantial portion of the nation. However modern India took shape with the conquest of the nation by the British. This conquest started in the 18th century. The British ruled India till 1947 when India became an independent nation.
As a consequence of over a century of British rule, a substantial portion of Indian law and Indian legal institutions are based on British law, British legal system and the English language.
Constitution of India
The Indian Constitution was framed by the Constituent Assembly and came into effect from 26th November 1949 (Article 1). The Indian Constitution was in part modeled on the Government of India Act 1935 (an act passed by the British Parliament) and the Constitutions of other nations such as the Irish Constitution. The Indian Constitution in turn served as a model for many nations, which became independent subsequently. A text of the Constitution is found at http://alfs.nic.in.
The Constitution is divided into Parts and further into Chapters and Articles. The Constitution provides for a quasi-federal nation consisting of a Union of States (Article 1). It provides for separate executives and legislatives for the Union and for each of the States and demarcates the powers of each. However the residual power is with the Union. Under certain circumstances, the Union can (and has) dissolved the executive and legislatives of the States. The Judiciary is however unitary in structure although administered separately by the Union and the States. There are no separate Federal and State Courts.
The Constitution itself can be amended by a special majority of the union legislature. Amendments to the provisions of the Constitution dealing with the States require the consent of the legislatures of at least half of the States (Article 368). The Constitution can be amended fairly extensively but the amendments cannot violate the basic features of the Constitution such as the independence of the judiciary, the sovereign democratic and republican structure of the nation, the rule of law and free and fair elections.
The Union Executive is headed by the President of India. The President is the nominal head of the State. The real power lies with the Union Council of Ministers (the cabinet) headed by the Prime Minister. India follows the Westminster form of Government with an elected President instead of a hereditary monarch (Articles 52 & 53).
The President is elected for a period of 5 years by an electoral colleague consisting of the members of the union and State legislatures (Articles 55 & 56). A President can be re-elected for any number of terms (Article 54). A Vice-President is elected for a period of 5 years by the members of the Union Legislature. The President can be impeached for violation of the Constitution (Article 61). The Vice-President can be removed by a mere resolution passed by both the Houses of the Union legislature (Articles 63-67).
The Prime Minister is the most powerful person in India. He is the head of the Council of Ministers. The President is normally bound to act on the advice of the Council of Ministers. The Prime Minister is usually the leader of the political party commanding a majority in the House of the People. During the recent past, the Prime Minister has been the leader of a coalition of political parties which together command a rather thin majority in the House of the People.
The Union Government is divided into a number of departments each headed by administer with a larger number of Indian administrative officers and subordinate employees. See http://goidirectory.nic.in for a directory of the government websites. Also see www.indiamap.com.
The Union Legislature
The Union legislature (the Parliament) is bicameral in nature, again on the West minister model. There is an Upper House called the Council of States or the Rajya Sabha and a Lower House called the House of People or Lok Sabha.
The Council of States as its name indicates is largely comprised of representatives of the States elected by the members of the legislatures of the States. It is a permanent House with one-third of its members retiring every second year. The Vice-President is the Chairman of the Council of States. The House of the People consists of members chosen by direct election by the citizens of India. The House of the People unless sooner dissolved continues for a term of five years. See http://alfa.nic.in for the web sites of the Parliament and the President.
Division of Legislative Power
The Legislative power of Union Legislature extends to all matters mentioned in the Union list and in the Concurrent list of the seventh schedule to the Constitution but does not extend to any of the matters mentioned in the State list of the seventh schedule. The Union Legislature has the residuary legislative powers. The division of legislative power between the union and the States is an important feature of the Constitution. Legislative enactments of either the Union or the States are often challenged on the ground that the enactments are beyond the legislative competence of the union or the States. The higher judiciary then decides on the legislative competence.
The State Executive
The Constitutional structure of the State is by and large similar to that of the Union. The executive power of each State is vested into the Governor of the State. The Governor of each State is appointed by the President on the advice of the Union Council of Ministers. The Governor is appointed for a term of five years but holds office during the pleasure of the President and can be removed any time.
The Governor acts on the advice of the State Council of ministers headed by the State Chief Minister. The Chief Minister is normally the leader of the political party commanding a majority in the Lower House or the only House of the State Legislature.
The State Legislature
The legislature of most States consist of only one House (the Legislative Assembly) whose members are directly elected by Indian citizens resident in that State. The Legislative Assembly is elected for a period of 5 years unless dissolved earlier. The legislative power of the State Legislative extends to all matters mentioned in the State List and in the Concurrent List of the seventh schedule to the Constitution. The legislative power of the State Legislative extends only to the territory of that State.
The few States which have two Houses, have a Legislative Council in addition to the Legislative Assembly. The Legislative Council is a permanent body elected by specified electorates comprising members of the Legislative Assembly, University graduates, members of Municipalities and other local bodies. The Legislative Assembly is empowered abolish the Legislative Council.
Union and State Judiciary
The Union Judiciary consists of the Supreme Court of India. The Supreme Court is the ultimate court of appeals for the nation. It hears appeals from the High Courts and acts as a court of review over subordinate tribunals. The Supreme Court exercises original jurisdiction in disputes between the Union and the States or between the States inter-se. The Supreme Court can also issue writs in the nature of habeas corpus, mandamus, prohibition, and certiorari and quo warranto for the enforcement of fundamental rights.
The Supreme Court consists of a Chief Justice and such number of puisne judges as the Union Legislative may legislate. The judges of the Supreme Court are appointed by the President in consultation with the Chief Justice of India. The senior-most puisne judge is normally appointed the Chief Justice of India. A judge of the Supreme Court holds office until he attains the age of 65 years. He could be removed earlier by impeachment before both the Houses of Parliament.
The State Judiciary consists of a High Courts for each State and subordinate courts. Each High Court consists of a Chief Justice and a number of puisne judges. A High Court judge is appointed by the President after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the State. A High Court judge holds office till he attains the age of 62 years. A High Court judge can be impeached in the same manner as a Supreme Court judge.
The High Court hears appeals from the subordinate courts and tribunals. It also acts as a court of revision for the subordinate courts and tribunals. The High Court has powers to issue writs of habeas corpus, certiorari and others. Some High Courts also exercise original jurisdiction in civil matters and admiralty jurisdiction. The language of the Supreme Court and the High Court is English, although the national language Hindi is rapidly gaining ground.
Subordinate courts are divided into criminal and civil courts. The civil courts consists of Munsif courts and courts of Subordinate Judges. Appeals normally lie from these courts to the District Court and then to the High Court. A litigant is normally entitled to two appeals-one appeal on facts and law and a second appeal on law alone. The criminal courts consist of Magistrates of first or second class and the Courts of Session. Appeals lie to the Court of Session and then to the High Court.
Specialised tribunals are established under various enactments such as the Income tax Appellate Tribunal, the Company Law Board, the Sales Tax Appellate Tribunal, the Consumer Forums, the Central and State Administrative Tribunals, the Debt Recovery Tribunal. All these tribunals are under the superintendence of the High Court within whose territorial jurisdiction they function.
Independence of the Judiciary from the Executive
Although the Parliament has powers to impeach a judge of the Supreme Court or the High Court, this is a power which is very difficult to exercise in practice. Not a single judge has been removed by the Parliament in more than 50 years of independence. Judges of the Supreme Court and the High Court have enormous freedom from political and other interference during their tenure. However inroads are being sought to be made (and resisted by the Judiciary) through lack of transparency and giving importance to political and sectarian considerations in the appointment of judges.
Fundamental Rights and Duties
The Constitution prescribes certain fundamental rights such as equality before the law (which includes protection from arbitrary action of the State), freedom from discrimination on grounds of religion, race, caste, sex or place of birth, equality of opportunity in matters of public employment, freedom of speech and expression, right to assembly peacefully without arms, to form association or unions, to move freely through India, to reside and settle in any part of India, protection against deprivation of life and personal liberty, freedom of conscience and the profession, practice and propagation of religion. Neither the Union nor the State legislative, executive or judiciary can act in violation of these fundamental rights. The right to property ceased to be a fundamental right from 1979 onwards but the Constitution provides that no person shall be deprived of his property save by authority of law.
Fundamental duties were added to the Constitution in 1977. Among these are duties to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem, to value and preserve the rich heritage of our composite culture, to protect and improve the national environment including forests lakes, rivers and wild life and to have compassion for living creations and to strive towards excellence in all spheres of individual and collective activity.
Review of the Functioning of the Constitution
The Constitution has served the nation well for more than five decades and has survived onslaughts to destroy many of its features. The Government of India (the Union Government) has recently constituted a committed headed by a retired Chief Justice of India to examine the working of the Constitution and suggest amendments. The committee is yet to complete its report. See http://www.ncrc.nic.in.
The standard text books on Constitutional law are:
- Basu-Shorter Constitution of India 13th edition 2001. Wadhwa publication. This book gives a commentary on the Constitution article by article.
- H.M. Seervai -Constitutional law of India. This is closely reasoned and a detailed study into the Constitution. It makes very good reading but the last edition was in 1991 (4th Edition)
The Law Commission of India
This is an organisation headed by to suggest legal reforms. The commission periodically submits reports to the Union executive suggesting legal reforms. The Union executive is however not bound to act on the suggestions.
The Election Commission of India
The Election Commission of India is headed by the Chief Election Commissioner and two Election Commissioners. The sole responsibility of the Election Commissioner is to periodically conduct elections to the State and Union legislatures as well as the Presidential elections. It has to ensure a free and fair polling in all these elections. The Election Commissioners are given financial and operation autonomy to ensure the conduct of free elections.
The Reserve Bank of India
The Reserve Bank of India is the apex bank in India. It manages monetary operations control over foreign exchange and control over commercial banks and financial institutions.
Securities and Exchange Board of India
The Securities and Exchange Board of India is the apex body dealing with trading of securities. It regulates the stock exchanges, public issue of securities and other intermediaries in the securities market.
Lawyers are the basic legal practitioners and the only persons allowed audience as a matter of right in the civil and criminal courts. A lawyer must pass a degree in law from a recognised university and has to be enrolled as an advocate with the Bar Council of the State in which he intends to practice. He is subject to disciplinary proceedings by the State Bar Council against whose decision an appeal lies to the Bar Council of India. The Bar Council consists of ex-offico and elected members from the Bar. (See http://goidirectory.nic.in/education.html for a list of universities.)
Chartered Accountants, Company Secretaries and other persons with prescribed qualification are allowed to appear before the most of the Tribunals.
Some Tribunals like the Family Courts expressly bar lawyers from appearing except with the permission of the tribunal.
Source of Law
The primary source of law is in the enactments passed by the Parliament or the State Legislatures. In addition to these the President and the Governor have limited powers to issue ordinances when the Parliament or the State Legislature are not in session. These ordinances lapse six weeks from the re-assembly of the Parliament or the State Legislature. These laws are later published in the Official Gazette (The Gazette of India or the State Gazette) Most enactments delegate powers to the executive to make rules and regulations for the purposes of the Acts. These rules and regulations are periodically laid before the legislature (Union or State as the case may be). This subordinate legislation is another source of law.
Laws passed by the Parliament are easily accessible at India Code which is a subscription site. www.judis.nic.in is a subscription site. www.supremecourtonline.com and www.mahalibrary.com are free sites. The AIR (All India Reporter) Manual of Central Laws is an exhaustive collection of laws enacted by the Parliament together with decisions of the Supreme Court and the High Court on these laws. The AIR manual can be a good starting point for research on the laws enacted by the Union. This site however is not easily accessible. Laws passed by the States are more difficult to access. The States are slowly attempting to launch web sites and may take a couple of years to complete. For the present, State laws are accessible through book sellers in India.
An important secondary source of law is the judgments of the Supreme Court High Court and some of the specialised Tribunals. The judgments of these institutions not only decide legal and factual issues in dispute between the parties but in the process interpret/declare the law. This interpretation/declaration law – the ratio decedendi is a binding precedent.
The Constitution provides that the law declared by the Supreme Court shall be binding on all courts within India. The ratio decidenti as well as the orbita dicta of the Supreme Court constitute binding precedents to be followed by all the other courts and tribunals. The Supreme Court is not bound by its own decisions. However decisions of a larger bench of the Supreme Court are binding on benches of equal or lesser strength. The Supreme Court has used its powers to venture into judicial activism going far beyond the traditional view that courts should only interpret the law and not make new law. Judgments of the Supreme Court on public interest litigation, protection of the environment and protection against arbitrary State action can be viewed more as judicial legislation and not as mere interpretation of the law.
The judgment of a State High Court are binding on itself and on all subordinate courts and tribunals in the State. However a numerically larger bench of the High Court can overrule a decision of a numerically smaller bench. Judgments of a High Court are not binding on another High Court or on courts subordinate to another High Court, but are of great persuasive value.
Judgments of specalised tribunals are binding on itself but not on the courts or other tribunals. Occasionally larger benches of a tribunal are constituted to reconsider the correctness of the decisions of smaller benches.
The Privy Council in London was the highest appellate body for India prior to independence. Judgments of the Privy Council rendered prior to independence are binding precedents unless overruled by the Supreme Court. Decisions of all other foreign courts are only of persuasive value. In view of the prodigious output of the Supreme Court during the past fifty years, the role of judgments of foreign courts has declined considerably. These judgments are normally cited in the Supreme Courts and in the High Courts only in the absence of Indian judgments on the point involved. Foreign judgments are seldom cited before the subordinate courts.
Books and Commentaries
Books and commentaries on Indian law are only of persuasive value but are frequently cited in the courts. Considering the underlying foundation of English Law and English legal principles, standard books on English law are frequently used and cited in the courts. Commentaries from other jurisdictions are seldom used.
Standard Books and Commentaries on Selected Topics
Law of Arbitration and Conciliation by R.S. Bachawat – (3rd Ed) 1999 Wadhwa & Company Nagpur.
Civil Procedure Code – The All India Reporter Commentaries.
Guide to the Companies Act by A. Ramaiya – Publishers Wadhwa and Company. (15th Ed.) 2001.
Shorter Constitution of India -Basu (13th ed.) 2001. Wadhwa publication. This book gives a commentary on the Constitution article by article. Constitutional law of India-H.M. Seervai. Universal Book Traders. This is closely reasoned and a detailed study into the Constitution. It makes very good reading but the last edition was in 1991 (4th Ed.)
Indian Conveyancer – Mogha (12th Ed.) 2000. Eastern Law House Conveyancing -De Souza’s – (13th Ed.)1999. Eastern Law House.
Indian Contract and Specific Relief Acts by Pollock and Mulla- Butterworths India.
Indian Penal Code – Ratanlal- (28th Ed.) Wadhwa & Company Nagpur.
Hindu law – Mulla – (17th Ed.) 1998 Butterworts India. Hindu law and usage – Maine (14th Ed.) 1996 Bharat Law House.
Income tax- Kanga and N.M.Tripathi Private Limited Income tax – Chaturvedi and Prithisara (5th Ed.) 1998 – Wadhwa & Company Nagpur.
Principles of Mohammedan Law- Mulla- 1990 (19th Ed) N.M.Tripathi Private Limited. Outlines of Mohammedan Law- Faizi- (4th Ed.) 1991Oxford University Press.
Transfer of Property Act by Mulla -Buttersworth India.
Law of Torts -Ratanlal ( 23rd Ed.) 1997 Wadhwa & Company Nagpur.
The addresses of some of the publishers and books sellers:
- Butterworths India
- Eastern Law House
- Wadhwa & Company Wadhwa Sales Corporation – DD-13, Kalkaji Extn. Opp Nehru palace, New Delhi – 110 019 Phone: 62322344, 6482756
- C.Sitaraman & Co.
- All India Reporter
- Nabhi Publications
- Company Law Institute of India
The National Law School of India University is one of the premier schools of law in India. A list of universities offering law is found at http://goidirectory.nic.in/education/html. A law degree is normally a five-year course taken after 12 years of school.
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