LAW

a rule made by a government that states how people may and may not behave in society and
in business and often specifies punishments if they do no obey such.

Hugh E Willis definition

1) Law is a scheme of social control
· Law functions as an organized and deliberate mechanism to regulate human behavior in society.
· It establishes standards for acceptable conduct, ensuring that individual actions align with societal
expectations and norms.

2) Backed and sanctioned by the power of state

· The enforcement of legal rules is made possible by the authority and machinery of the state, such
as police, judiciary, and other administrative bodies.
· The state provides legitimacy to laws, ensuring their universal application and compliance within its
jurisdiction.

3) For the protection of social interest

· The primary aim of law is to safeguard the collective welfare of society.
· This includes ensuring safety, promoting equality, protecting rights, and advancing public good.

4) By means of legal capacity and legal redress

· Legal capacities refer to the rights and duties granted by the law, allowing individuals and
institutions to act within the legal framework.
· Legal redress involves the remedies or solutions provided by the law when rights are violated or
disputes arise, such as compensation, injunctions, or criminal penalties

SUBSTANTIVE LAW AND PROCEDURAL LAW

Substantive Law is a Statutory Law that defines and determines the rights and obligations of the
citizens to be protected by law; defines the crime or wrong and also their remedies; determines the
facts that constitute a wrong -i.e. the subject-matter of litigation in the context of administration of
justice.

Procedural law lays down the method of aiding, the steps and procedures for enforcement of Law-
Civil and Criminal.

LEGAL SYSTEMS
What legal system a jurisdiction uses will dictate, among other things:

 What laws will govern a given case, be it precedent, statutes, or community customs
 The role of the judge
 The role of attorneys
 The rights of the accused
 The standard of evidence
 What parties have the burden of proof
 Who has the authority to decide cases, be they judges, juries, legislators, religious leaders, or
community elders

COMMON LAW SYSTEM:-

origin of Common Law is believed to have been in England

> Judgments by higher or superior courts are binding to all the courts in its
jurisdiction
also known as judicial precedent.

> Adversarial system wherein the judge acts as the neutral observer and the
moderator in the courtroom and allows both parties to present their cases through a
lawyer. He does not take any interest in establishing evidence for truth.

> In this system the acts and statues are abstract or general in nature and may not
apply to all circumstances and hence this system allows judges to interpret
the acts accordingly

CIVIL LAW SYSTEM:-

in this system codified lwas passed by the legislature are given the utmost
importance

Laws are majorly exhaustive in nature, ie cover each and every aspect and
circumstance that may arise

Inquisitorial approach Judges do not merely act as a refree but take active
participation in finding the truth through the investigation

RELIGIOUS LAW SYSTEM:-

Laws are based on religious texts and their interpretations

application defers from region to region

religious law may supersede civil law in some regions

Oversees matters such as marriage, inheritance, family matters, etc

Sharia law- islamic- Saudi arabia

Halakha- Jewish- Israel
Canon law- christian

RULE OF LAW
The rule of law is a cornerstone of the Indian legal system. It ensures that every
individual, irrespective of their social, political, or economic status, is subject to the
law. This principle upholds equality before the law and guarantees that no one is
above it, including government officials and lawmakers. The Indian Constitution
explicitly incorporates the rule of law through provisions like Article 14, which
enshrines equality before the law. It also implies that laws must be transparent, fair,
and just. The rule of law acts as a safeguard against arbitrary governance and
ensures accountability and the protection of individual freedoms
Ex- 2G spectrum case where high ranking politicians were trailed

RULE OF CONSTITUTION
The Constitution of India is the supreme legal document, laying down the
fundamental principles that govern the country. It provides the framework for
legislative, executive, and judicial functions and acts as the ultimate source of law.
All laws and government actions must align with constitutional provisions;
otherwise, they are deemed invalid. Judicial review, exercised by courts, ensures this
alignment. The Constitution’s supremacy also protects the democratic structure,
fundamental rights, and secular character of India. By establishing a federal structure
with clear powers for the Union and States, it balances authority and prevents
overreach.

Eg:- electoral bonds

PROTECTION AGAINST CONSTITUTIONAL AMENDMENTS

The Indian Constitution provides a mechanism for amendments under Article 368,
allowing flexibility to address changing societal needs. However, certain provisions,
such as the basic structure doctrine (e.g., fundamental rights, separation of powers),
are protected against arbitrary amendments. The doctrine, established in the
landmark Kesavananda Bharati case (1973), ensures that the Constitution's core
principles cannot be diluted even by Parliament. This protection safeguards
democratic values, individual rights, and the balance of power between institutions.

Indira Gandhi v. Raj Narain case (1975), where the Supreme Court struck down the
39th Amendment, which sought to exempt the Prime Minister from judicial scrutiny,
as it violated the basic structure of free and fair elections.

FUNDAMENTAL RIGHTS
Fundamental rights are enshrined in Part III of the Indian Constitution to protect
individual freedoms and ensure justice. These rights include equality (Article 14),
freedom of speech and expression (Article 19), protection against exploitation, and
the right to constitutional remedies (Article 32). They empower citizens and act as a
check against state overreach. Fundamental rights are enforceable in courts,
ensuring that individuals can seek redress if their rights are violated. They reflect
India’s commitment to democracy, dignity, and equality.

JUDICIAL INDEPENDENCE

The judiciary in India operates independently from the executive and legislative
branches to ensure impartiality and fairness in delivering justice. This principle was
reaffirmed in the NJAC (National Judicial Appointments Commission) case (2015),
where the Supreme Court struck down the NJAC Act, as it was seen to undermine
judicial independence by giving undue influence to the executive in judicial
appointments. A real-life example of judicial independence is the Supreme Court’s
verdict in the Coal Allocation Scam (2014), where it canceled coal block allocations
made by the government, citing irregularities. Such actions demonstrate that the
judiciary can hold the government accountable without interference.

JUSTICE, EQUITY AND GOOD CONSCIENCE

The Indian legal system strives to ensure justice, equity, and fairness, even in cases
where existing laws may be silent. For instance, in the case of Mohori Bibee v.
Dharmodas Ghose (1903), the principle of equity was applied when the court
invalidated a contract entered into by a minor, as it was against fairness and good
conscience. Another example is the Supreme Court's intervention in the Bhopal Gas
Tragedy (1984), where the court ensured compensation for victims of one of the
worst industrial disasters in history, even though existing laws were inadequate to
address such large-scale grievances at the time.

ADVERSIAL SYSTEMS

India follows the adversarial legal system, where two opposing parties present their
case to a neutral judge who determines the outcome. This system is evident in high-
profile criminal trials like the Nirbhaya Case (2012), where both the prosecution and
defense presented evidence and arguments. The adversarial process ensured a fair
trial for the accused while delivering justice to the victim. It also allows individuals to
challenge the government or powerful entities in cases like Campa Cola Residents v.
BMC (2013), where residents fought against eviction, showcasing the system’s ability
to balance power dynamics.

CODES AND STATUTES

Indian law is codified, meaning laws are systematically written and categorized for
clarity. Examples include the Indian Penal Code (IPC), 1860, which defines crimes
and punishments, and the Civil Procedure Code (CPC), 1908, which outlines civil
court procedures. Codification helps in consistent application of laws. For instance,
the Consumer Protection Act, 2019 provides a clear legal framework for addressing
consumer grievances. This codified approach ensures citizens understand their rights
and obligations while providing transparency in the legal process.

PERSONAL LAWS AND UNIFORM CIVIL CODE

India’s legal system recognizes diverse personal laws for different religious
communities, governing matters like marriage, divorce, and inheritance. For
instance, Hindu Marriage Act, 1955, applies to Hindus, while Muslim Personal Law is
based on Sharia principles. However, the idea of a Uniform Civil Code (UCC) aims to
replace these personal laws with one common set of laws applicable to all citizens,
irrespective of religion. Goa is an example where a UCC is already in place. The
debate around the UCC remains contentious, as seen in cases like Shah Bano (1985),
which highlighted the conflict between personal laws and constitutional rights like
gender equality.

SOURCES OF LAW

A source of law…is any fact which in accordance with the law determines the judicial
recognition and acceptance of any new rule as having the force of law. It is the legal
cause of the admittance by the judicature of any new principles as one which will be
observed for the future in the administration of justice.

Must be in accordance with law and must not contradict established law system

Must be recognized as having the force of law,

1) CONSTITUTION
The Constitution is the fundamental source of law, serving as the supreme legal
document of a nation. It establishes the framework for governance,protects the
fundamental rights and freedoms of individuals, ensuring a balance between
authority and liberty.

A constitution defines the relationship between the state and its citizens. It outlines
the principles of justice, equality, and rule of law, serving as a guide for all other laws
and legal interpretations.

Constitutions can be written or unwritten. Written constitutions, like those of India

and the U.S., are codified documents that explicitly state the laws and principles
governing the state. Unwritten constitutions, such as that of the United Kingdom,
rely on conventions, precedents, and legal documents accumulated over time.

2) LEGISLATION

Legislation, often referred to as statutory law, is the body of rules and regulations
enacted by a legislative authority, such as a parliament or congress. It is a primary
source of law that reflects the will of the people through their elected
representatives.

Legislation serves multiple purposes. It provides clear and specific rules to address
societal needs, regulates conduct, and resolves ambiguities in existing laws. For
example, laws like the Consumer Protection Act in India or the Civil Rights Act in the
U.S. aim to safeguard individual rights and promote social welfare.

The legislative process typically involves multiple stages: drafting, debate, approval,
and enactment. Once a bill is passed by the legislature and receives assent from the
head of state, it becomes a law. Subordinate legislation, such as rules and
regulations issued by government departments, further elaborates on these laws to
ensure effective implementation.

Legislation is dynamic, adapting to societal changes and technological

advancements. For instance, laws addressing cybercrime, environmental protection,
and data privacy have emerged in response to contemporary challenges. This
adaptability ensures that the legal system remains relevant and effective.

However, legislation is not without limitations. Poorly drafted laws or lack of public
awareness can lead to misuse or ineffective enforcement. To address this, laws are
often subject to judicial interpretation, ensuring they align with constitutional
principles and public welfare.

In summary, legislation is a crucial source of law that provides the framework for
orderly societal functioning. It reflects collective societal values and addresses
emerging needs, ensuring stability and progress.

3. Precedent

A precedent is a judicial decision that serves as an authoritative example for

resolving future cases with similar facts or legal issues. It is a fundamental source of
law, particularly in common law systems like those in the United Kingdom, the
United States, and India.

The doctrine of stare decisis underpins the use of precedents. This principle
mandates that courts follow established legal principles to ensure consistency,
fairness, and predictability in the legal system. For instance, if a higher court decides
on a legal issue, lower courts are bound to follow that decision in subsequent cases
unless overruled or distinguished.

Precedents can be classified as binding or persuasive. Binding precedents are

decisions of higher courts that lower courts must follow within the same jurisdiction.
Persuasive precedents, on the other hand, come from courts of other jurisdictions or
lower courts and may influence a decision but are not obligatory.

The advantages of precedents include promoting legal certainty and reducing the
arbitrariness of judicial decisions. They provide a rich repository of legal principles
that evolve through judicial interpretation, adapting to societal changes. For
instance, the principle of “basic structure” in Indian constitutional law emerged
through judicial precedent, limiting the Parliament’s power to amend the
Constitution.

However, precedents also have limitations. Over-reliance on past decisions can

hinder legal innovation, and conflicting judgments may create confusion. To address
these challenges, courts may distinguish a case on its facts or overrule outdated
precedents when necessary.

In conclusion, precedents play a vital role in shaping the legal landscape by providing
continuity and adaptability. They bridge the gap between legislative intent and
practical application, ensuring justice in a dynamic society.

ARTICLE 141
Law declared by Supreme Court to be binding on all courts.— The law declared by
the Supreme Court shall be binding on all courts within the territory of India.

The law declared by the Supreme Court shall be binding on all courts within the
territory of India.

Binding Precedent:
Supreme Court judgments become binding precedents, ensuring consistency
and uniformity in the legal system. Lower courts must follow these decisions.

Clarification of Law:
The Supreme Court’s interpretations clarify ambiguities in legislation and
constitutional provisions, creating binding legal principles.

Judicial Discipline:
Promotes judicial discipline by ensuring lower courts adhere to the apex
court’s rulings, avoiding contradictory decisions.

Exceptions

1. Supreme Court rulings are not binding on itself; it can overrule its own decisions.
2. Laws declared per incuriam (overlooking binding precedent or statute) are not
binding.

In essence, Article 141 strengthens the rule of law and the authority of the judiciary
in India.

ARTICLE 129

The Supreme Court shall be a court of record and shall have all the powers of such a
court, including the power to punish for contempt of itself."

Key Points:

Court of Record:The upreme Court's proceedings and judgments are

recorded for perpetual reference.These records are authoritative and cannot
be challenged in any lower court.
 Contempt of Court:The Supreme Court has the power to punish individuals
for contempt to ensure respect for its authority and proper functioning.

Binding Precedent As a court of record, its decisions serve as binding

precedents for all subordinate courts in India.

Judicial Law-Making in India

Constitutional Interpretation:
The judiciary interprets constitutional provisions, often setting legal
principles. For instance:

1. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court established

the basic structure doctrine, limiting Parliament's power to amend the Constitution.
2. In Maneka Gandhi v. Union of India (1978), the court expanded the scope of the
right to life and personal liberty under Article 21.

Filling Legislative Gaps:

Courts create law when legislation is silent or inadequate. For example:

1. Vishaka v. State of Rajasthan (1997): The Supreme Court laid down guidelines to
address sexual harassment at workplaces, acting in the absence of specific laws at
the time.
2. Common Cause v. Union of India (2018): The court recognized the legality of
passive euthanasia through advance directives.

Binding Precedents:
Under Article 141, the Supreme Court's decisions are binding on all courts,
effectively creating law

Judicial Activism:
Through Public Interest Litigation (PIL), courts often address socio-economic
and environmental issues, stepping into areas where legislative or executive
action is lacking.

Can a decision of one High Court bind another High Court?

Decisions of one high courts have persuasive value, which means they are up for
mere consideration by other high courts
and not binding

VALUE OF FOREIGN JUDEMENT IN INDIA

The value of a judgment delivered by a foreign court in India depends on its nature
and circumstances under the Code of Civil Procedure, 1908 (CPC), particularly
Sections 13 and 14. Here's how it is treated:

Key Points

Conclusive in Certain Cases:

A foreign judgment is considered conclusive between the parties on matters
it adjudicates unless it falls under specific exceptions outlined in Section 13 of
the CPC

Exceptions to Conclusiveness (Section 13):

A foreign judgment is not conclusive if:

1. It was not pronounced by a competent court.

2. It was not on the merits of the case.
3. It appears to be founded on an incorrect view of international or Indian law.
4. It was obtained through fraud.
5. It violates Indian public policy.
6. It disregards natural justice principles.

Enforceability (Section 14):

1. A foreign judgment is treated as presumptively correct unless proven otherwise.

2. If the judgment meets the requirements under Section 13, it can be enforced as a
decree of an Indian court, particularly in cases involving money decrees.

Reciprocal vs. Non-Reciprocal Territories:

1. Judgments from reciprocal territories (notified by the Indian government) can be

directly executed in India under Section 44A of the CPC.
2. Judgments from non-reciprocal territories require a fresh suit in an Indian court
based on the foreign decree.

Conclusion

A foreign judgment holds value in India if it meets the conditions of competence,

fairness, and alignment with Indian law. Otherwise, it may be challenged or rendered
unenforceable.
4. Custom

Customs are traditional practices and norms that have been followed over time and
accepted as binding rules of conduct. They are among the oldest sources of law,
predating formal legislation and judicial systems.

Customary law evolves from societal practices that gain legal recognition due to their
consistent observance and perceived necessity. For a custom to be legally valid, it
must meet certain criteria: it should be reasonable, consistent, long-standing, and
accepted by the community as obligatory.

Customs can be classified into two types: general and local. General customs are
widely practiced across a nation or region, while local customs are specific to a
particular community or area. For example, tribal laws in certain indigenous
communities are based on long-standing customs and traditions.

Customary laws often complement formal legal systems, particularly in areas where
statutory law is silent or inadequate. In India, for instance, personal laws governing
marriage, divorce, and inheritance are rooted in religious and customary practices.
Similarly, customary international law plays a significant role in global governance,
guiding nations in areas like diplomatic relations and maritime rights.

Despite their significance, customs have limitations. They may be rigid, outdated, or
discriminatory, necessitating legislative intervention to ensure they align with
contemporary values. For instance, practices like untouchability and child marriage,
once customary, have been outlawed to uphold principles of equality and justice.

In summary, customs are a foundational source of law, reflecting societal values and
traditions. While they provide continuity and cultural relevance, their evolving
interpretation ensures they remain consistent with modern legal and ethical
standards.

The image outlines the essential conditions for a custom to be recognized as a

source of law:

Antiquity:
The custom must have existed for a long period, preferably from time immemorial.
This demonstrates its acceptance and legitimacy.
Continuity:It should have been followed consistently without interruption, indicating
its enduring relevance

Reasonableness:
The custom must be reasonable, fair, and just. Unreasonable customs cannot gain
legal recognition.

Conformity with Statutory Law:

A custom must not contradict established statutory laws. If it does, the statute
prevails.

Consistency with Morality and Public Policy:

It should align with societal values, morality, and public interest. Immoral or harmful
customs are not recognized.These conditions ensure that only legitimate, fair, and
relevant customs influence legal systems.

Explanation:

The HUF is a customary practice recognized under Hindu personal laws, where a
family is treated as a single legal entity for purposes like property ownership and
taxation. It has evolved through traditions over centuries and is codified in laws like
the Hindu Succession Act, 1956, but its origin lies in ancient customs.

This demonstrates how customary practices can gain legal recognition when they
meet the required conditions.