Understanding Indian Legal

System
Prof. Nandimath Omprakash V
Professor of Law
National Law School of India University, Bengaluru
ovnandimath@gmail.com
Recap
• We have understood – what is law
• Why law is essential (including why law is important for a
businessman)
• The sources of law
The ‘system’ (before moving to ‘legal system’)

• The word ‘system’ connotes a complex of elements, each performing

its allotted role, but all working towards a common goal
• It is a whole made-up of several parts, each having its own identity
and yet, all striving to achieve harmony
• …now we apply this to understand ‘legal system’…
Components of legal system

THE LAW
MAKING
ORGAN
COMPLETE
THE
RULES
PROCEDURE
TO MAKE
RELATING
ALL THESE
TO LAW
ELEMENTS
MAKING
WORK
LEGAL
SYSTEM

INSTITUTIONS
RULES
ENTRUSTED
GOVERNING
WITH
THE
EXECUTION
ADJUDICATION
OF LAW
INSTITUTIONS
CONNECTED
WITH
ADJUDICATION
• Legal system of a country is part of its social system and reflects the
social, political, economic and cultural characteristics
• It is therefore difficult to understand the legal system outside the
socio-cultural unleash in which it operates
Constitution based legal system

Basic principles and values (largely outlined

by the constitution), a set of operational
01 norms including rights and duties of citizens
spelt out in the laws – central, state and
local

Institutional structures for enforcement of

laws and a cadre of legal personnel endowed
02 with responsibility of administering the
system
World legal systems
CIVIL LAW – BLUE; COMMON LAW – MAROON; RELIGIOUS LAW – YELLOW;
CUSTOMARY LAW – OTHER; PLURALISM - GREEN
Indian legal system
• Supremacy of Indian Constitution
• Basic structure
• Judicial review
Judicial review
• Judicial review is a type of court proceeding in which a judge reviews
the lawfulness of a decision or action made by a public body
• In civil law system judicial review is not as robust as in common law
system
• The countries in which judicial review is strong – the judicial
independence/creativity is also very strong
Judicial review in India
• Judicial review plays an important role as a protector when the
executive, judiciary and legislature harm the Constitutional values and
deny the rights
• The judicial assessment is considered as an indispensable feature in
the country
Latest position
• D. Y. Chandrachud compared the ‘basic structure’ of the constitution
to the NorthStar, an unfailing guide which shows the way when the
path appears convoluted
1951 – First Amendment to the Constitution
• IX Schedule was added to the Constitution – as a means of
immunizing certain laws against judicial review
Supremacy of Constitution in India
Article 13 - Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance,
order, bye law, rule, regulation, notification, custom or usages having in the
territory of India the force of law; laws in force includes laws passed or made by
Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding
that any such law or any part thereof may not be then in operation either at all or
in particular areas
1952 and 1955
• Sankari Prasad v UOI, was decided in 1952; and
• Sajjan Singh v State of Rajasthan, was decided in 1955
• The SC held with a stand that the Parliament has the power to amend
any part of the constitution including that which affects the
fundamental rights of the citizens
• Raising doubt whether the fundamental rights of citizens could
become a plaything of the majority party in Parliament
1967 – Golaknath v State of Punjab
• Interesting interpretation started
• The then CJI Subba Rao, put forth a curious position that Art. 368
contained provision related to the amendment of the constitution
• Also held that there are implied limitations on Parliament’s power to
amend the constitution
• The view – that the Constitution derives its legitimacy from the
people of India and not by the Parliament – and Parliament is created
by the constitution with a limited power to amend the Constitution
itself
• People in giving the constitution have reserved to themselves the
fundamental rights as express limitation to the law-making power of
the Legislature
• Natural theory – that fundamental rights are not created by law but
conferred by the nature itself
• The judges in Golak Nath said
• The fundamental rights were so sacrosanct and transcendental in
importance that they could not be restricted even if such a move
were to receive unanimous approval of both the houses of Parliament
• There was private member bill introduced by Barrister Nath Pai –
seeking to restore the supremacy of Parliaments power to amend the
Constitutional provision was introduced – but the same could not
pass for many disruptions
1969-70
• Two major political decision took attention of nation
• Nationalization of banks; and
• Derecognizing erstwhile princes in a bid to take away their privy purses; which
were promised to them in perpetuity
• Both were struck down by the SC as unconstitutional (for bank
nationalization in initial judgement)
Political agitation
• Less than 2 weeks after the SC’s decision in derecognition of Privy
Purse
• Mrs. Gandhi, dissolved Lok Sabha and called for a snap poll to seek
mandate of the people
• 8 out of 10 election manifestos in 1971 elections – called for changes
in the constitution in order to restore the supremacy of parliament
• The Congress returned to power with 2/3 rd Majority
Parliament working with zeal
• As people had given their mandate
• Entire category of legislation dealing with land reforms was placed in
the IX Schedule and also the Privy Purse
• These amendments to the Constitution were challenged before the
landmark case of Kesavananda Bharati v State of Kerala
Kesavananda Bharati v State of Kerala (1973)
• The seminal concept of ‘basic structure’ of the constitution gained
recognition in the majority verdict
• SC held that the Parliament had the power to amend any or all
provisions of the Constitution, but for the basic structure
• The Parliament’s constituent power was subject to inherent
limitations. Parliament could not use its amending powers under Art.
368 to ‘damage’, ‘emasculate’, ‘destroy’, ‘abrogate’ or ‘alter’, the ‘basic
structure or framework of the Constitution
Elements of basic structure identified
• Supremacy of the Constitution
• Democratic form of governance
• Secular character of the constitution
• Separation of powers between the legislature, executive and judiciary
• Federal character of the constitution
• Unity and integrity of nation
• Essential feature of the individual freedoms secured to citizens
1975 – Raj Naraian’s case
• A Challenge to PM Indira Gandhi’s election was upheld by the
Allahabad HC for election malpractice
• SC (through Krishna Iyer J) provided stay to the order and allowed
Mrs. Gandhi to continue as Prime Minster till the case is decided
finally by SC
39 th Amendment to the Constitution
• Removed the authority of the Supreme Court to adjudicate petitions
regarding elections of the President, Vice-President, Prime Minister
and Speaker of Lok Sabha
• Instead a body constituted by the Parliament would be vested with
the power to resolve such election disputes
• The government even amended the Representation of Peoples Act
and made all these laws applicable retrospectively
• When the SC wanted to hear Raj Narian’s case – the Attorney General
asked the court to throw out the case in the light of the amendment
• Raj Narain challenged and argued that the amendment was against
the basic structure of the constitution, as it curtailed the judicial
review
• 4 out of 5 judges on the bench upheld the 39th Amendment, but only
after striking down that part which sought to curb the power of
judiciary to adjudicate, including the current dispute
• NOTE – CJI Beg, however, upheld the amendment in its entirety
• Mrs. Gandhi’s election was declared valid on the basis of the
amended law
• Within 3 days of the decision of the Election case, CJI Beg convened a
13 judge bench to review the Kesvananda case and particularly the
basic structure
• PM Gandhi, in her speech in Parliament refused to accept the dogma
of basic structure
• However, CJI dissolved the bench after two days of the hearing
without assigning any further reasons
Declaration of emergency
• In June 1975
• And consequent suspension of fundamental freedoms, including the
right to move the courts against preventive detention diverted the
attention of the nation of the country from this issue
2000 – Justice MNV Committee
• To review the constitution by NDA Government under the leadership
of Atal Bhari Vajpayee on February 22, 2000
• TOR – “shall examine, in the light of the experience of the past 50
years as to how best the constitution can respond to the changing
needs of efficient, smooth and effective system of governance and
socio-economic development of modern India within the framework
of Parliamentary democracy,a nd to recommend changes if any that
are required in the provisions of constitution without interfering with
its ‘basic structure’ or ‘basic features’”
Constitution and business
• The interconnection between business law and constitutional law is a
complex and important relationship
• For instance in US the V Amendment prohibits the government from
taking the private property for public use without just compensation
• Regulator like SEBI, IDBI, RBI etc., are all made to work in accordance
with the constitutional values and norms
• Government award of business and procurement shall happen as per
the constitutional norms
• Any unjust adjudication and affecting private right shall be subjected
judicial review
• Labor safety are constitutional values reflected
• Environmental laws are resonating the constitutional mandate