Introduction to Law and Legal

System

Dr. Sairam Bhat

Associate Professor of Law
NLSIU
 What is Law?
• Law is a discipline: rules of conduct in a society
• Ignorance of Law-is a excuse
• Law as a instrument of change
• Law is dynamic and never static
• Object and purpose of Law?
• Obedience of law: always a challenge
• Law ensures rights-duty
• Law inside and outside
• Law as a instrument of empowerment
 Law Making
• Acts
• Rules
• Ordinances
• Notifications
 Legal System

Common law Civil Law

• Vicariously liability
• Respondeat superior
 Forms of Government
• Parliamentary
• Presidential form
 Legal System in India
• Separation of power theory
• Strict separation not possible
• Executive law making: Delegated
legislations
– Rules
– Regulations
– Notifications
– Bye-laws
– circulars
• Judicial Administrative functions
 Quasi Judicial system
• Executive Quasi Judicial functions:
– DC on land Acquisition: Land Acquisition Act
– IT Commissioners; Commissioner (Appeals): IT Act
– Domestic Enquiry
– Registrar of Cooperative: Arbitrator between
Cooperative
– Director General of Anti-Dumping Duty

• Quasi Judicial Simliplicitor:

– Consumer Forums
– Competition Commission
– Securities Appellate Tribunal
• Bar on jurisdiction of civil courts
Principles guiding the legal system:
Purpose of law
• Game theory: Motorist driving on a busy
street-foreseeability
• Duty of care: Donoghue v Stevenson
• Justice, equity and good conscience
• 3 Sailors eat the cabin boy [R v Dudley
and Stephens 1884]
 Sources of Law
• Custom: long practices/without objection/not expressly in
violation of statute
– Loosing ground: sati/polygamy/dowry/female-coequal share
– Religion and custom: Anti superstitious Act/Women not allowed in a
temple/killing cow
– Morality and custom: 377-Khap ruling
• Legislation: Supreme Legislation: Acts
– Subordinate legislations
Rules/Regulations/orders/byelaws/notification
• Precedent: legislating from bench
– Ex: Kesavananda Bharati v. State of Kerala/Right to healthcare case
– Ratio decidendi and obiter dictum
– Supreme Court not bound by its own decision
• International instruments
 Classification of Law
• Public Law
– Constitutional Law
– Environmental Law
– Criminal Law
• Private Law
– Personal Law: marriage/succession
– Law of obligations: tort/contract/property law
• Substantive Law and Procedural Law
 Constitution of India
• 450 Articles, 22 parts, 12 schedules
• Preamble
• Art 1: Territory of India
• Citizenship [Part II]
• Fundamental Rights [Part III]
– Art 12
– Art 14: non-arbitrariness, fairness and equity
– Art 19 (1)(g)
– Ivory Traders Association v UOI 1997 and Lottery case 2009
– Art 21: right to life and liberty
– Protection against arrest and detention
– Art 30: Right of Religious Institution to administer and manage [Churches of God v KKR Majestic
Association 2003]
– Art 31: Right to Property?
• Directive Principles of State Policy [Part IV]
– Art 39(b)©
– Art 44: UCC
• Fundamental Duties
• The Union
– Art 299: Executive power
– Art 300 : Suits against Govt
• The State
• Panchayat and Municipal System [Part IX]
 Legislative division of powers
between Union and State
• Seventh Schedule
• When Union can legislate in State subjects
– Emergency
– National Interest/Commitment at International
Conventions
– Two or more State ask the Union to make a
law[ Art 252]
 Other Important Provisions
• Amending Powers Art 368
– Basic Structure theory [Keshavananda Bharti
Case 1973]
• Emergency Powers
• President’s Rules Art 356: S R Bommai v
UOI 1994
• Original intention in the Constitution:
Separation of powers:
 Judicial System
Supreme Court [Appellate/Original jurisdiction]

High Court [Appellate/Original jurisdiction]

District Court/Session Court [Appellate/Original jurisdiction]

Civil Judge/Senior/Junior division Magistrate Court [First/Second

class]
 Other Special courts
• MV Court
• Court of small causes
• Fast track Courts
• Family Courts
 PIL
• Remedies available under Art 32/226: Writ
– Habeas Corpus
– Mandamus
– Prohibition/Certiorari
– Quo Warranto
 ADR
• Act of 1940/1996
• Mediation
• Conciliation
• Arbitration
• Powers of Arbitrator/Forms of Arbitration
• Procedure for appointment
• Former Arbitral award
• Indian Council of Arbitration was formed in 1965
[Act]