Civil Law and Common Law
Different countries follow different legal systems. There are two major legal systems-Common Law and Civil Law. The Common Law system originated in England and is prevalent in countries that were once British colonies like India, U.S.A., Canada, etc.
- On the other hand, Civil Law is predominant in Europe and other countries once colonised by France and Spain.
- The system of Civil Law has developed through Roman law and is primarily based on codified legislations.
- The Inquisitorial procedure is followed in courts to settle disputes. The judge is not a silent spectator, rather responsible for discovering the facts of the case by gathering the evidence. Here attorneys play a more passive role and precedents unbind a judge. The system of Common Law is primarily judge-made law.
- A judge decides a dispute based on precedents rather than on codified legislation and the doctrine of stare decisis is followed. Adversarial systems are followed in courts to settle disputes, i.e., both the parties present their cases, exchange arguments and advance evidence before a neutral party, a judge or a jury.
- The judge or jury acts as a silent listener or an umpire. Their main role is to evaluate the evidence, apply the appropriate law to the facts and decide accordingly.
- Under the Common Law, the doctrine of stare decisis means that lower courts are bound by previously decided cases (or precedents) of a higher court, where the facts are substantially the same.
- The decision of a higher court is binding on lower courts in the same jurisdiction only.
- The operative part of the judgment that is binding on the lower courts is known as ratio decidendi.
- It refers to the legal reasoning of the court, based on which the final decision is given. The remaining part of the judgment is called obiter dicta. It refers to any observation, discussion or view expressed by the court, which has no bearing on the final decision. This part is not binding but has only persuasive value.
Substantive and Procedural Law
- Legislations can be classified as substantive and procedural laws.
- Substantive law refers to the law that creates, defines, and regulates a person's rights and liabilities, e.g. Indian Contract Act, 1872, Sale of Goods Act, 1930 etc.
- Procedural law (also known as adjective law) refers to the law that lays down rules determining the procedure to be followed in a court, according to which the substantive law is enforced, e.g. Code of Civil Procedure, 1908 and, Code of Criminal Procedure, 1973.
Law of Torts
Tort is derived from the Latin word 'tortum', which means 'twisted' or 'crooked'. According to Salmond, a tort is a civil wrong, other than a breach of a contract or a breach of a trust or other merely equitable obligation, for which the remedy is an action for unliquidated damages. Law of Torts is an uncodified law and is mainly based on principles of the common law. This branch of law comes into force when a person commits a wrongful act, causing injury or damage to another. Three essential ingredients of a tort are:
There must be a wrongful act.
- The wrongful act must give rise to a legal remedy.
- The legal remedy must be in the form of an action for unliquidated damages.
The person who sustains damage/injury is known as the plaintiff, and the person who commits the wrongful act is known as the defendant or tortfeasor. The plaintiff can seek relief by filing a suit in a civil court. The main aim of tort law is to compensate the plaintiff in monetary terms, by putting him in the same position that he was in, had the tort not taken place, so far as money can do good. Unliquidated damages mean compensation, the amount of which is to be determined by the court.
Law of Contract
A 'contract' is a legally enforceable agreement, to do something or not to do something, written or oral, entered by parties competent to contract, with free consent, for a lawful consideration and a lawful object. In India, the law of contract is codified in the Indian Contract Act, 1872, which applies to India's whole except Jammu and Kashmir. A person is said to be incompetent to contract if:
- He is a minor; or
- He is of unsound mind; or
- He is disqualified from contracting by any law.
The contracting parties are free to decide mutual rights and obligations arising from a contract between them. However, this is subject to the provisions of the Indian Contract Act, which lays down certain rules and regulations that govern a contract's formation, the performance of a contract, and the consequences of a contract's breach. When a party to a contract fails to perform his part of the obligations under the contract, that party is said to be acting in breach of the contract. Various remedies available to the injured party for a breach of a contract are;
- damages- liquidated (mutually decided previously by the parties to the contract) or unliquidated (to be decided by the court),
- specific performance of a contract, or
- an injunction.
In India, family law is mainly governed by personal laws of Hindus and Muslims. In Hindus, marriage is considered a sacrament, and it's a contract in Muslims. The Hindu Law is divided in two schools of thought – Dayabhaga and Mitakshara. Law governing marriages among Hindus is codified under the Hindu Marriage Act, 1955. It provides conditions for constituting a valid marriage, marriages that are considered void or voidable and grounds for granting divorce like cruelty, impotence, adultery, insanity, etc. The conditions for a valid marriage are:
- Neither party has a living spouse.
- Neither party is incapable of giving a valid consent due to unsoundness of mind.
- The bridegroom has completed the age of twenty-one years, and the bride, the age of eighteen years.
- The parties are not within the degrees of prohibited relationship unless permitted by custom or usage.
- The parties are not sapindas of each other unless permitted by custom or usage.
Further, inter-community or interreligious marriages are governed by the Special Marriage Act, 1954. Under the Muslim Law, a Muslim can have four wives, and there exists a system of 'dower' or 'mahr', i.e. a sum of money a wife is entitled to get as consideration of marriage. Succession in Hindus is governed by the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 which is based on the principle of propinquity, i.e., preference of heirs on the basis of proximity and relationship. In the Muslims, succession is governed by Quranic Principles by the rule of agnatic preference ('agnate' is a relation who is related to the deceased wholly through males).
- The criminal law is governed by the Indian Penal Code, 1860, ('IPC') which was prepared in mid 18th century by the First Law Commission headed by Lord Macaulay. It defines various categories of crime and punishment thereof.
- A 'crime' is an offence against the state. The two most essential constituent elements of a criminal act are Actus Reus (wrongful act) combined with Mens Rea (wrongful intention).
- The principle is embodied in the maxim 'actus non facit reum nisi mens sit rea' meaning that an act does not make one guilty unless the mind is also legally blameworthy. Merely a criminal intention not followed by act does not constitute a crime.
- In certain cases, even an attempt to commit the crime is punishable like in cases of murder, theft, etc.
- In certain cases, abetment to crimes like murder is also punishable. Murder (Section 300) and culpable homicide (Section 299) are two different things; the latter is an act of killing a person not intended to be killed.
- In Criminal Law, a man is considered innocent until he is proved guilty beyond reasonable doubts. There are certain general exceptions incorporated from Section 76 to 109 of the IPC where certain categories of persons are excused even though their acts constitute a crime, e.g., an act done by a child below 7 years of age, by a person of unsound mind, under intoxication, under a duty-bound by law, etc.
- Property can be classified as immovable and movable property. The law dealing with immovable property transfer is codified under the Transfer of Property Act, 1882 ('TPA'). Dealing with movable property is codified under the Sale of Goods Act, 1930 ('SOGA').
- TPA defines 'transfer of property' as an act of conveying property, in present or future, by one living person, to another living person and/or to himself.
- TPA defines 'immovable property', enumerates certain kinds of property that cannot be transferred and governs the manner in which a valid transfer can be made.
- It also spells out the rights and obligations of a transferor (the person who transfers the property) and transferee (the person to whom the property is transferred).
- The TPA regulates the following modes of transferring an immovable property: sale, mortgage, charge, lease, gift, exchange and transfer of actionable claim.
- Initially, the sale of goods was a part of the Indian Contract Act, 1872. Later, the chapter on the sale of goods was deleted from the Contract Act, and a separate act was enacted known as the Sale of Goods Act, 1930.
- SOGA defines a 'contract of sale of goods' as a contract through which the seller transfers or agrees to transfer, absolutely or subject to certain conditions, the property in goods, existing or future, to the buyer, for a price.
- Since a sale of goods is a contract of sale, the Contract Act's basic provisions also apply to a contract of sale of goods between the buyer and the seller. Thus, SOGA is complementary to the Contract Act.
- SOGA lays down rules and regulations for formation of a contract of sale of goods, rights and duties of a buyer and a seller, effect of a contract of sale and consequences of a breach of a contract of sale.
- Professional ethics refers to a code of conduct to be followed by those who practise the profession of law.
- Since the law is considered a very noble profession, those professing it are expected to maintain the profession's dignity and follow legal ethics.
- Two main enactments that regulate lawyers' conduct are Advocates Act, 1961 and the Contempt of Courts Act, 1971.
Advocates Act, 1961
The Advocates Act, 1961 regulate the conduct of advocates. This act provides for a set of norms to be followed by advocates while practising law; penalty for persons practising illegally; formation of the Bar Council of India and State Bar Councils; mode of membership to the Bar Council of India and State Bar Councils; functions and powers of the Bar Council of India and State Bar Councils and rulemaking power of the Bar Council of India and State Bar Councils to regulate the conduct of an advocate.
Contempt of Courts Act, 1971
Courts in India are courts of record, and they can punish for their own contempt. The Constitution of India expressly empowers the Supreme Court and the High Courts to punish for their own contempt. The Contempt of Courts Act, 1971 further regulates this power of the courts. The act classifies contempt of court into civil contempt and criminal contempt. 'Civil contempt' means wilful disobedience of any decision of a court or wilful breach of an undertaking given to a court and 'criminal contempt' means an act or a publication that:
- Scandalises or lowers the authority of any court.
- Prejudices or interferes with the due course of any judicial proceeding.
- Interferes or obstructs the administration of justice.
Further, the act also contains provisions recognising various defences against a contempt petition, e.g., innocent publication, fair criticism, etc.
Consumer Protection Act
- The Consumer Protection Act, 1986 ('CPA') was enacted with the object to provide better protection to the consumers.
- As it is welfare legislation, CPA is interpreted in the broadest manner for the benefit of the consumers.
- Furthermore, it mostly imposes strict liability on the manufacturers and service providers for any defect in goods supplied or deficiency in services provided by them.
- CPA also provides for establishment of consumer councils and other authorities at district, state and centre level, for speedy settlement of consumer disputes.
- The Indian Constitution was enacted by the Constituent Assembly on 26th November 1949 and came into effect on 26th January 1950.
- It is the lengthiest written constitution in the world, containing about 450 articles divided into 22 parts and 12 schedules.
- The Constitution of India is the supreme law of the land. Any law in derogation with any part of the constitution is considered to be ultra vires and invalid.
- The Preamble of the Constitution declares India to be a sovereign, socialist, secular, democratic republic; securing justice, equality, liberty to its citizens and endeavours to promote fraternity. The words' socialist' and 'secular' were added in 1976 by the 42nd constitutional amendment.
- The constitution provides for a federal form of government.
- The powers of the State and Centre are enumerated in the constitution. The subjects on which the Parliament and the State Legislatures can enact laws are provided in the VII schedule under three lists-union list, state list and concurrent list.
- Only Parliament can enact laws on the subjects mentioned in the union list, and only State legislatures can enact laws on the subjects mentioned in the state list.
- Both Parliament and State Legislatures can enact laws on subjects mentioned in the concurrent list. The residuary power vests with the Parliament.
- Fundamental Rights are guaranteed under Part III of the Indian Constitution (Article 14–Article 32).
- These are enforceable in a court of law by filing a writ petition in the Supreme Court, under Article 32 or High Court, under Article 226. The Indian Constitution also provides for Fundamental Duties of the citizens in Part IVA (Article 51A).
- These are non-justiciable in nature. Further, Part IV of the Constitution provides for certain guiding principles for the state, known as the Directive Principles of State Policy. These are fundamental in the governance of the country, though they are not enforceable.
- The constitution also provides for election, qualifications and term of the President and Vice President of India.
- The executive powers of the centre vests in the President and he is the head of the Defence forces. The President's election is done by an Electoral College, comprising elected members of both the houses of the Parliament and State Legislative Assemblies.
- The Electoral College for the Vice President's election comprises elected members of both the houses of the Parliament.
The President and Vice President hold office for a period of 5 years. They can be removed from their office by impeachment and can also resign. The President's resignation should be addressed to the Vice-President, and that of the Vice President should be addressed to the President. A person is qualified to be elected as President or Vice President if: He is a citizen of India.
He has completed the age of 35 years.
- He is qualified to be a member of the Lok Sabha, in case of President and that of the Rajya Sabha, in case of Vice President.
- He does not hold any office of profit under the government.
The Chief Justice of India administers the oath of the President, or in his absence, the senior-most judge of the Supreme Court and that of the Vice President is administered by the President or any person appointed by him for this purpose. The constitution provides for the appointment of a Governor for each state, who is the executive head of that state. He is to be appointed by the President and holds office for a period of 5 years. He can resign by addressing his resignation to the President. A person is eligible for appointment as Governor if:
- He is a citizen of India; and
- Has completed the age of 35 years. The Governor's oath is administered by the Chief Justice of the High Court exercising jurisdiction over the state or in his absence the senior-most judge of such High Court.
- The constitution confers power, to the President and the Governor, to grant pardon, reprieves, respites or remissions of punishment or commute sentence of any person convicted of any offence.
- However, a Governor cannot pardon a person convicted of a death sentence. Further, the President and the Governor also have the power to pass ordinances when the Parliament or the State Legislature (as the case may be) is not in session.
- The constitution provides that the Prime Minister is to be appointed by the President. Further, there shall be a Council of Ministers to aid and advise the President, appointed by the President, on the prime minister's advice.
- The Council of Ministers are collectively responsible to the Rajya Sabha. The ministers hold office till the pleasure of the President.
- The constitution also provides for the appointment of AttorneyGeneral of India to advise the government on legal matters.
- He is to be appointed by the President and holds office during his pleasure. Any person qualified to be a judge of a Supreme Court can be appointed as Attorney-General.
- The constitution also provides for the appointment of Comptroller and Auditor-General (CAG) of India to perform duties and exercise powers in matters relating to accounts of the government. He is to be appointed by the President and can be removed from his office in a manner similar to the impeachment of a judge of the Supreme Court.
- The constitution provides for a parliamentary form of government.
- The Parliament consists of two houses – the lower house of the Parliament known as the Lok Sabha (or the House of People) and the upper house of the Parliament known as the Rajya Sabha (or the Council of States).
- The number of members in Lok Sabha is: elected members (not more than 530) plus representatives of Union Territories (not more than 20 members) plus 2 members to be nominated by the President to represent the Anglo-Indian community; and in Rajya Sabha is: 12 members to be nominated by the President plus representatives of States and Union Territories (not more than 238).
- Minimum age qualification for being a member of the Lok Sabha is 25 years, and that of the Rajya Sabha is 30 years. The Lok Sabha continues for a period of 5 years unless dissolved earlier; whereas the Rajya Sabha is the permanent house and its 1/3rd members retire after every 2 years.
- The Lok Sabha meetings are presided over by the Speaker who has a casting vote in case of a deadlock. The Vice President is the ex-officio chairman of the Rajya Sabha.
- The constitution also provides for the establishment of State Legislatures for each state consisting of- Legislative Assembly and Legislative Council (in some states).
- The Legislative Assembly consists of not more than 500 and not less than 60 members. The Legislative Council (if any) consists of not more than 1/3rd members of the total number of members in that state's Legislative Assembly.
- Minimum age qualification for being a member of the Legislative Assembly is 25 years, and that of the Legislative Council is 30 years.
- The Legislative Assembly continues for a period of 5 years unless dissolved earlier; whereas the Legislative Council is the permanent house and 1/3rd members retire after every 2 years. The constitution also confers certain privileges and immunities on the Parliament and the State Legislatures.
- Before any law is passed, a bill is introduced in either house of the Parliament. Different kinds of bills are- money bill (can originate only in the Lok Sabha), an ordinary bill (can originate in either house of the Parliament), a financial bill (can originate only in the Lok Sabha on the recommendation of the President) and Constitutional amendment bills (can originate in either house of the Parliament).
A bill has to be passed by both the houses of the Parliament and becomes law only after getting the assent of the President. Article 368 of the Indian Constitution lays down the procedure for the amendment of the constitution by the Parliament. Articles of the Constitution can be amended by:
- Simple majority.
- Special majority, i.e., by a majority of the total membership of that house and by a majority of not less than 2/3rd of the members of the House present and voting.
- Special majority as well as ratification by the legislatures of not less than 1/2 of the States.
- The constitution also provides for the establishment of the Supreme Court, High Courts and other subordinate courts. The Supreme Court consists of the Chief Justice of India and thirty other judges.
- The President appoints the judges of the Supreme Court and the High Court until they attain the age of 65 years, in case of judges of the Supreme Court and 62 years, in case of judges of the High Court. Judges can be removed from their office by impeachment or by giving their resignation to the President.
- The judges of the Supreme Court or High Courts can be impeached by order of the President after an address is passed by both the houses of the Parliament by a special majority, i.e., two-thirds of the members of the house present and voting, on the ground of proved misbehaviour or incapacity.
- In case of the Supreme Court, the oath of the judges is administered by the President, and by the Governor of the State, in case of the High Courts. The constitution provides that the Supreme Court and High Courts are courts of record and can punish for their own contempt.