An introduction to law

The nature and meaning of law has been described by various jurists. However, there is
no unanimity regarding the true nature and meaning of the term. The law has been
evolving over a long period of time according to the need of the society and depending
on the circumstances. Nonetheless, we will study a few definitions to arrive at some
meaning.

 “The art or science of what is equitable and good”- Ulpine

 “The standard of what is just and unjust”- Justinian’s digest

 Ancient Hindu law- command of God so it is dharma. Even King is subordinate

 “the body of principles recognised and applied by the State in the administration
of justice”- Salmond

 Law is a unique social science. It evolves out of the civilised living, tested in the
public or private life and applied in the courts of law.

If we closely look at these idealistic definitions and especially the definition of Salmond,
we notice some of the important elements. They are:

 There is a State

 It makes or recognises or sanctions rules (law)

 For rules to be effective, there is some sanction/authority behind them

 It has some purpose

The goal of law is justice. It is an instrument to secure justice. Over a period of time, law
has also become a tool for social engineering. Hence, it is now recognized that the
‘purpose’ can be social.

The laws that we see in today’s civilized society have evolved over a period of time and
have undergone transformation and are derived from various sources. They are:

Principal sources:

Principal sources of law are:

a) Customs

b) Legislation : Supreme or subordinate

c) Judicial precedents
 d) Personal law

Custom or customary law

Custom, in order to have a binding force of law, should have certain characteristics. The
following are the essential elements of custom.

1. It should be based on principles of justice, equity and public utility

2. There must be continuity in its following from time immemorial
3. It should have been observed over time immemorial. It must be ancient.
4. It should be in the interest of society and
5. It should conform with law and public morality.

Statutes or legislation

Statutes or legislation are the laws enacted by legislature body or some legal authority.
In India, we have the parliament, various state legislature bodies. We also have
autonomous bodies which make some rules etc. The legislation can be supreme or
subordinate. Supreme legislation is enacted from the sovereign power of the state or
with the power granted by the constitution. Subordinate legislation is one which is
enacted by the power other than sovereign power. It is also called delegated legislation.
E.g. rules made by the Executive or municipal bodies.

Judicial Precedents

Judicial precedents are an important source of law. The decisions which lay down some
new rule or principle are called precedents. A judicial decision is presumed to be correct
and hence followed. Law becomes clear and certain. Administration of justice becomes
easy and fair.

Doctrine of precedents

The first principle is that each court, which is lower in hierarchy, is bound by the
decisions of the court above it. Secondly, in general, the higher courts are bound by
their own decisions.

High courts

The decisions of high court are binding on all the courts and tribunals within its
jurisdiction. In case of conflict of decisions between two co-equal benches, the later
decision is followed.

A single judge of a high court is the smallest Bench. A two judge bench is called a
Division Bench. Three or more judges constitute a Full bench. A decision by a larger
bench is binding on smaller bench of the same high court. Normally, a decision by one
bench of high court is followed by another bench unless they have a specific reason for
it. The proper course would be to refer the same to a full Bench.

Supreme Court

The decisions of the Supreme Court are binding on all the courts and tribunals of the
country. The law declared including obiter dictum by the Supreme Court will be binding.
Obiter dictum means “said by the way”. It is an expression of opinion. Normally, it is not
binding. But in case of Supreme court, it is binding, if the point is raised and argued.
Another point to be noted is that the decisions of the Supreme Court are not binding on
it. Hence, if it feels that a particular earlier decision is erroneous and is required to be
changed in the interest of public, it can change the same.

Doctrine of stare decisis

This principle is very important. It means like cases should be decided alike. Principle
laid down in earlier matter should be followed. It should not be unsettled. This principle
is generally followed by the courts but not at the cost of justice. It means in the interest
of justice, there can be departure.

Ratio decidendi

Underlying principle of a judicial decision is called ratio decidendi. It is authoritative. It is

a proposition of law which is necessary for the decision. The concrete decision is
binding on the parties whereas the abstract ratio is binding on the world at large.

Classification of Precedents

The precedents can be classified into four categories: a) Declaratory and original b)
persuasive c) absolutely authoritative and d) conditionally authoritative.

a) Declaratory and original precedent:

Declaratory precedent is nothing but an application of an already existing rule of
law. Original precedent, on the other hand, creates and applies a new rule of law.
It is a law for the future. However, the legal sanctity of both is the same.
b) Persuasive precedent:
These precedents are not binding on the judges, but they may take into
consideration. The decisions of other high courts have only persuasive value.
c) Authoritative precedent:
Authoritative precedent is one which a judge has to follow even if he does not
agree. In India we have absolutely authoritative precedents as per the hierarchy
of the courts as mentioned above. E.g. each court is bound by the decisions of
the superior court.
d) Conditionally authoritative:
 It is the one which is ordinarily authoritative but in certin cicumstnces can be
disregarded. E.g. a decision of the single judge of a high court is absolutely
authoritative on subordinate courts but is conditionally authoritative before a
Division bench.

Personal law

In many cases, the courts may have to apply the personal law of the parties where the
point at issue is not covered by any law or custom. Hindus are governed by the law or
rules contained in the following:

a) Shrutis: It includes four Vedas. Shruti means which was heard from God by the
sages as per Hindu belief.
b) Smritis: Smritis (what is remembered) are the recollections handed down by the
Rishis or the ancient teachings or precepts of God. Three Smritis are famous:
Manu, Yajnavalkya and Narada.
c) Puranas: Epic puranas like Ramayan, Mahabharat are the examples of dharma
sutras. Dharma here is a way of life.

Hindus are governed by their personal law as modified by statute law and custom in
respect of their personal matters.

Sources of Mohammedan law are as follows:

a) The Koran representing the voice of God.

b) The Hadis: these are the actions, the precepts and sayings of Prophet
Mohammed, though not written during his lifetime but preserved by tradition.
c) Ijmas: A concurrence of opinions of the companions of Prophet and his disciples
d) Kiyas or Quiyas: It is reasoning by analogy. It is derived from comparison of
Koran, Hadis and Ijmas when none of these apply to a particular matter.
e) Digests and commentaries on Mohammedan law: the famous one is the Hedaya
composed in the 12th century. Another one is Fatawa Alamgiri compiled from
commands of Mogul Emperor Aurangzeb Alamgir.

Like Hindus, Mohammedans are also governed by their personal law as modified by
statute law in respect of their personal matters.

Secondary sources:

Secondary sources of law are justice, equity and good conscience. These principals are
basically based on English concept but sometimes they are applied by the courts in the
administration of justice.
In the absence of any specific provision in statute law, custom or personal law, Indian
courts apply the principles of justice, equity or good conscience.

Classification of law:

Law can be classified into four categories:

1. Municipal law and International law

2. Civil law and criminal law
3. Public law and Private law and
4. Substantive law and procedural law

1. Municipal law and International law:

Municipal law means the law applied in the State and international law comprises of
public and private international legal principles.

Public international law is a set of the legal rules which are applied between sovereign
states and other international personalities. It is not an outcome of legislation by an
authority. Various nations accept the same as binding on themselves.

Private international law deals with cases involving foreign element. It is concerned with
the jurisdiction of Municipal courts, in which there is a foreign element. It is concerned
with civil rights and duties of the individuals.

2. Civil law and criminal law:

Civil law is concerned with the rights and duties of individuals inter se and provides
remedies for breach. In civil suits individuals are the parties. The remedy is usually
award of damages to the aggrieved party, if the claim is found to be correct. In civil law,
the aggrieved party has to set the process of law in motion.

Criminal law deals with offences punishable by the State. Criminal law is enforced in the
name of the State. A crime is an act of disobedience of law and results in punishment, if
found guilty. In criminal law, the State initiates the action on behalf of the society in
general. It is a process of administering public policy.

3. Public law and Private law:

Public law regulates the functioning of the State and determines its relation with its
subjects. It is concerned with the State and its political and sovereign capacity. The
provisions are meant to protect collective interests rather than individual interests. The
Constitutional law, criminal law, administrative law are some of the examples of public
law.

Private law is meant to protect the civil rights of individuals. The civil law is generally a
private law.

4. Substantive law and Procedural law:

Substantive law consists of rule of law and basic principles of liability. It defines civil
wrongs and crimes, legal remedies and punishments etc.

Procedural law, on the other hand, lays down the procedures for enforcement of rights
or prosecution of crime.

The law of Evidence is unique. It is both a substantive law as well as procedural law.

The Constitution

There are three branches in Indian system as mentioned in the constitution. They are
Legislation, Executive and Judiciary. Each one has separate and unique functions and it
is expected that no one will interfere with the functions of the other.

There are three lists for making laws: union list. State list and concurrent list. In respect
of union list only the Parliament is empowered to make any law whereas in case of state
list, it is the respective state legislature which is empowered to make laws. In case of
concurrent list, Parliament and the State Legislatures both have powers to make laws.
Thus, both of them can make a law even with respect to the same subject and both the
laws shall be valid in so far as they are not repugnant to each other. However, in case
of repugnancy, i.e., when there is a conflict between such laws then the law made by
Parliament shall prevail over the law made by the State Legislature and the latter will be
valid only to the extent to which it is not repugnant to the former. But there is an
exception to this rule. If the law made by the state has received the assent of the
President, then that law shall prevail in the state. Further, in respect of any matter,
which is not mentioned in any of these lists, it is the parliament which is empowered to
make law.
Some important features of the constitution are: Fundamental rights, directive principles
of state policy, Single citizenship, No retrospective criminal laws, Eminent domain (Govt
can take over any property), Preventive detention, Double jeopardy ( no one can be
punished twice), repugnancy of state law with central law.

The Constitution has undergone various amendments. The latest important amendment
being the one for implementing GST. There are two aspects of the Constitution. Firstly,
no law can be inconsistent with the provisions of the Constitution. Secondly, even the
amendments to the constitution also cannot be inconsistent with the basic principles of
the Constitution. This principle is called ultra vires and such changes could be struck
down by the judiciary as unconstitutional.

The parliament earlier carried out an amendment giving power to itself for making far
reaching changes to the Constitution. Keshavanand Bharati case was a landmark case
in this regard. Initially it was a land related matter but lateron the constitutional validity
challenging parliament’s purportedly unlimited power to amend the constitution was
challenged. A full bench comprising of 13 Supreme Court judges was constituted. By a
majority decision, the Supreme Court held that the power of the parliament to amend
the constitution is limited to the extent of making an amendment within the ‘basic
structure’ of the constitution. It cannot disturb the basic structure. The word ‘amend’
does not include the power to annul the constitution. This case is known as fundamental
rights case.