Indian legal System: Introduction

MDIM

BATCH 2019

Prof. subrata kumar ray

LLM DIRPM FCS,
 sovereign discipline
 for positive compliance
 non compliance leads to incredibility & penalty
 revolving around rights and liabilities
 natural right- human rights-beyond law-
human factor
 civil right-by default- to citizens-
 Law is related to the following three
elements;

 The legal structure of the society ;

 Constitutional ideals and principles and

 Legal procedure.
 These are three established rules of law :

 The concept of equality of all persons before law

 The Rule of Law states that, “no man is punishable or can be lawfully
made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary
courts.”
 In the second place, Rule of Law means that, “no man is above Law.”

 Every man whatever his rank or condition, is subject to the ordinary law of
the State and amenable to the jurisdiction of ordinary tribunals.

 Therefore, Rule of Law means;



 (a)equality before the law,

In the third place, the Rule of Law is the result of statutes and judicial
decisions determining the rights of private persons. Thus the constitutional law
of the country follows from the ordinary Law of the Land.
 supreme law of India. political principles, and establishing the
structure, procedures, powers and duties, of the government and
spells out the fundamental rights, directive principles and duties of
citizens
 It declares The Union of India to be a sovereign, democratic republic,
assuring its citizens of justice, equality, and liberty; the words
"socialist" and "secular" were added by constitutional amendment.
 Structure of the Union Government
 India is a Union of States. It is a Sovereign, Socialist ,Democratic, Republic with a parliamentary system
of government.
 The Constitution provides for a Parliamentary form of government which is federal in structure with

.
certain unitary features

 the constitutional head of the executive of the union is the president. the council of the
parliament of the union consists of the president and two houses to be known as the
council of states ( Rajya Sabha) and the house of the people (Lok Sabha).

 there shall be a council of ministers with a prime minister as its head to aid and advise
the president, who shall exercise his functions in accordance to the advice. the real
executive power is thus vested in the council of ministers with the prime minister as its
head.


 the council of ministers is collectively responsible to the house of the People (Lok
Sabha).

 fundamental rights-govt. to guarantee.
constitutional remedies- direct petition to high/
supreme court

 common law- court to ensure justice

 contractual law-effected by contracts between the

parties-court to ensure specific performance or
grant compensation.

 normal commercial perception is to comply unless

it is difficult
 custom/society/practice
 existing law-considered to be
irrelevant/ineffective
 government policy
 political/social/industry demand
 international treaty/understanding/parity
 precedents: court decisions
 made by Parliament (central act) legislature (state act)-
principal legislation
 government to make rules-subordinate legislation/ cg’s
power to be stipulated in the principal act.
 each act is administered/regulated by designated
authority-regulator can make its own regulations
 legislation makes law, executive administers law,
judiciary interprets and settles disputes
 quasi judicial bodies, courts, alternate dispute
resolution
 Article 368 of the Constitution provides that amendments to the
Constitution can take place in three ways. These are;
 By simple majority of the Parliament: Amendments in this category
can be made by a simple majority of members present and voting;


 by special majority of the parliament: amendments can be made in

this category by a two-thirds majority of the total number of
members present and voting, which should not be less than half of
the total membership of the house.

by special majority of the parliament and ratification by at least half of

the state legislatures by special majority. after this, it is sent to the
president for his assent.
 basic structure of constitution cannot be amended by any means
 While Centre had did not have the power to tax on
intra state sale, states did not have any power to
levy tax on services.
 Constitutional amendment was made by inserting
article 246A which empowers both Centre and
state to levy tax on sale and services.
 However, in case of inter state sale or services, only
Centre can levy tax.
 In case of a deadlock between the two houses or in a case
where more than six months lapse in the other house, the
President may summon, though is not bound to, a joint
session of the two houses resolved by simple majority. Until
now, only three bills: the Dowry Prohibition Act (1961), the
Banking Service Commission Repeal Bill (1978) and the
Prevention of Terrorist Activities Act (2002) have been passed
at joint sessions.
 when a bill has been passed, it is sent to the president for his approval. the
president can assent or withhold his assent to a bill or he can return a bill,
other than a money bill published in the gazette of india . if the president
returns it for reconsideration, the parliament must do so, but if it is passed
again and returned to him, he must give his assent to it. in the case of a
constitutional amendment bill, the president is bound to give his assent.
 Ascent of president and becomes an Act
 The act becomes applicable on following dates:


◦ immediately on ascent of President;

◦ effective date mentioned in the Act itself;
◦ CG may be delegated to notify the effective date.


 Generally most Acts will come into force, or
become legally enforceable in a manner as
prescribed in the Act itself

 the date of assent by the President

 a specific date is mentioned in the Act itself

 date as to be notified by the Central Govt.

 Also called “principal  Also called subordinate
legislation”  By authority/CG/ regulator
 Made by/ amended by
parliament/ assembly  Compliance mandatory
 Authority to make rules
 Rules/ subsidiary legislation
cannot override/ in conflict
of the primary legislation

primary secondary
 cause of action will decide the jurisdiction of
the court

◦ cases shall be tried at the lowest court competent to

admit cases

◦ civil rights-by default- a citizen:state to guarantee

fundamental rights
◦ -right to do business

◦ contractual right-voluntary

◦ res- judicata-single cause of action, same parties

cannot file cases at two different courts unless
parallel jurisdiction available
 1. Addresser-Authority
 2. Subject Matter
 3. Details of Plaintiffs
 4. Details of Defendants
 5. Facts
 6. Plaintiff’s attempt to settle out of court
 7. Prayer sought with legal reference, precedent reference
 8. Copies to other respondents
 9.Admission of the case by court
 10.counter statement by respondent
 11.hearing
 12. Interim order
 13.final order


 While we have federal Govt., we have single united judiciary, which means all courts
recognize and follow the laws made by the Centre and the states. Basic function of
judiciary is to give justice to the citizens and in some situations, interpret the law.
 Central judiciary
 The Supreme Court
 The highest Court in the Country;
 Normally hears appeals from High Courts but also admits original petitions in some
cases(SLP )
 Interpretation of Law;
 Advisor to President;
 Settle dispute between any two states or Centre vs. State;
 Judicial review of laws and orders passed by centre or state.

 High Court: apex in state- 24 H Cs in India;
 Original jurisdiction: petition filed direct in H C.
 Appellate jurisdiction: on the decision of lower courts
 Revisionary jurisdiction: to revise its own judgement


 (b)Subordinate courts ( vary from state to state)

 (i) civil courts: hear cases related to land, property, financial
 transactions etc.
 (ii) criminal courts: at district level
 Revenue court


 (iv) lok adalat: encourage compromise between the parties, normally at pre
litigation stage


 (v) family court



 constitutional remedy on violation of fundamental rights


 Article 32 can be invoked on violation of fundamental rights

guaranteed under part iii of the constitution


 (i)habeas corpus: calling upon a person who has detained someone

to produce hi before court- can be made by any person even not
having any relationship with detainee.


 (ii) mandamus: a command issued to direct a person/

coprn./inferior court/ Govt, requiring them to do some particular
thing which is in the nature of public duty.


 (iii)quo warranto: state inquires into legality of the claim which a

party asserts to a public office depriving that citizen from public
office.
 Certainty of law
 Consistent legal  Slow(China is 60 times
procedure faster)
 Independence of  Expensive for common
judiciary people
 Too many laws:
 People have faith in law
complication
 Judiciary promotes
 Non enforceability of
ADR
contract

advantages disadvantages
 Mutual  Judiciary
 Mediation  Small court
 Conciliation  High court
 Supreme court
 arbitration
 Original
 Review
 Appeal
 Order /decree
 Consent order

Judiciary
ADR mechanism
 Procedural
 Regulatory

 Prohibitory

 Revenue

Objects are mentioned at the beginning of the Act.

At Bill stage, the intention of the making/ amending
the Act is mentioned.
Legislative intent
• branching law directly relates to business

• also known as corporate law commercial law

• segregation for academic purpose

• laws are applicable as they are intended/ legislative intent

• business is not about law but laws in business needs

compliance
• laws is source of knowledge to management and
subordinate to main management functions
few important acts which directly relate to business:
1.companies act: basic concept of company remain same in
all countries.
(a) perpetual succession
(b) free transferability of shares
© limited liability
(d) mandatory registration: suffix different in different
countries.
(e) board management
(f) filing of returns
(g) governance norms monitored by govt.
2.Foreign Exchange m
Management Act. (fema)
fera, 1973, Fema, 1999
(a) foreign exchange
(b) foreign security
© current account transaction
(d) capital account transaction
(e) foreign investment in india
(f) Indian investment outside india
(g) transfer of shares and securities.
 arbitration and concilialation act. 1996: deals with settlement
of dispute through arbitration , including cross border
disputes( international commercial arbitration)
 concept of conciliation

 pollution control laws: central and state; constitution and

functions of pollution control boards.moef clearance
 industrial/labod raftdrafting of petition /complaint
 ing of petition /complaint
 laws: depending on type of industry
 on the job and terminal benefit. social seurity laws are more
stringrnt in european countries.
4.Negotiable Instruments Act
Instrument of settling payments INLAND BILL:
FOREIGN BILL
5.Contract Act.
Voluntary relationships amongst parties- concept of commitment-
cannot back out without compensation
offers, international offers, validation of offers, earnest/ security
money, prequalification bidding, performance.
Parties can choose method and country of jurisdiction

6.Sale Of Goods Act:

(a) Sale and agreement to sale
(b) types of sale: INTRA STATE, INTER STATE, EXPORT
7.Transfer Of Property Act :deals with various types
of transfer

8.Indian Partnership Act./Limited Liability

Partnership Ac (LLP)

9.MRTP Act / Competition Act.

Monopoly and combinations: dominant undertaking

Unfair trade practice
Restricted trade practice
11.Patent:Patent Cooperation Treaty of 1970 provided for
unified procedure for filing patent application (international
Application/PCT application)
Grant is state authority.(144 countries are signatory to PCT)
International Preliminary examination authority makes a
report on patentability)
12.Copyrights: any international work can have same
copyright protection on India, provided reciprocal
arrangements is made with the country)
13.Trademark: TRIPS establishes rights amongst member
countries for harmonization of existing law. Community trade
marks relates to some standardization with European union.
“well known trade marks “status is granted to famous
international trade marks in less developed countries by not
allowing registration /use of similar trade marks.
.
14. Industries ( Development and Regulation) Act
(IDRA)
(a) Registration
(b) Licensing: industrial / licensing policy
© takeover of undertaking by Govt.

15 Foreign trade ( Development and Regulation Act)

 CG empowered to make EXIM policy
 Creation of DGFT
16. Consumer Protection Act: more stringent in other
countries.
17. Sectoral laws: insurance, bank, NBFC, telecom
 INCOME TAX: concept of Non resident, withholding tax
 Double taxation avoidance agreement (DTAA)
 CUSTOMS: ON IMPORTS;HIGH SEA SALES
 CENTRAL EXCISE: ON MANUFACTURING: GOODS CANNOT BE
MOVED: SELF REMOVAL PROCEDURE:CENVAT
 VAT
 SERVICE TAX
 STAMP ACT: EXECUTION OF DOCUMENTS IN INDIA
 REGISTRATION ACT: DOCUMENTS EXECUTED OUT OF INDIA
SHALL BE REGISTERED WITHIN 4 MONTHS OF ITS RECEIPT IN
INDIA
 District courts: 2.81 crore cases pending, in
about 17,000 subordinate courts across the
country, of which 22.62 lakh cases are
pending for more than 10 years.
 Over 10 lakh cases are pending in 24 high
courts .
 In 2014, the Delhi high court granted divorce to an 85-year-old
man after a legal battle spanning 32 years .
 “Delay in disposal of cases, not only creates disillusionment
amongst the litigants, but also undermines the capability of the
system to impart justice in an efficient and effective manner,”
former Supreme Court judge BN Agrawal
 Vacancies of judges
 at least 90 million people waiting for justice.
 Official figures show, the SC is short of five judges, 24 HCs have
464 vacant judges post and 4,166 at the subordinate courts.
 Appointment to the Supreme Court and high courts are done by
a collegium of the top court. But judges in the subordinate
courts are appointed by the state High court.
 the tussle between the government and the Supreme Court has
“adversely affected the efficiency of the judiciary”.
 In 2010, justice VV Rao of the Andhra Pradesh High court
said it would take 320 years for the Indian judiciary to
clear the millions of pending cases.
 India should have 50 judges per one million people, the
ratio continues to be at 17 judges per one million people.

 Although the number of judges increased six-fold in the

last three decades, the number of cases too shot up 12-
fold, said a 2012 report of the National Court Management
Systems (NCMS).
 Even by conservative estimates, the number of cases
reaching courts will touch 15 crore, requiring at least
75,000 judges in the next three decades, the report said.
 With growing literacy and income, more and more people
are likely to approach courts,