Introduction to legal frame work
- 1. Introduction to Legal Frame Work:Constitution of India:Preamble. What is a preamble? Every Constitution or Act has a preamble with which it begins and which embodies its objectives or basic purpose. Preamble to the constitution:We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to all its citizens: Justice social, economic and political; Liberty of thought, expression, belief , faith and worship; Equality of status and opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. In our constituent assembly this twenty sixth day of November, 1949, do hereby adopt, enact and give to ourselves this constitution. The Constitution was ready on 26/11/1949, but was promulgated (to officially declare the introduction of any law) on 26/01/1950. In India, it is federalism with a unitary bias. There are three lists under the 7th Schedule to the Constitution, namely :Union List (List I):-Items like Defense, Currency, Foreign Affairs, Atomic Energy, Railways etc. State List (List II):- Items like public order and Police, local government, public health and sanitation, agriculture, education etc. Concurrent List (List III):- Where the Central Govt. and the respective State Governments, both have power to enact laws. Like criminal law procedure, marriages, contracts, trusts, social insurances, economic and social planning. Residuary Powers:- that is any matter not enumerated in the concurrent or state list is with parliament. Such a power also includes the power of making any law imposing a tax not mentioned in either of the above lists. Constitution of India has prescribed Fundamental rights, Fundamental duties and the Directive Principles of State Policy. Fundamental Rights:-Right to equality. The State shall not deny to any person equality before the law or the equal protection of the law within the territory of India. The state shall not discriminate against any citizen on the groundsonly of religion, race, caste, sex, place of birth or any of them. There shall be equal opportunity for all citizens in matters relating to employment or to appointment to any office under the state. -Right to freedom to speech and expression to assemble peaceably without arms to move freely throughout the territory of India to move and settle in any part of the territory of India and to practice any profession, or to carry on any occupation, trade or business. to acquire, hold and dispose of property. IT SHOULD BE NOTED THAT REASONABLE RESTRICTIONS ARE IMPOSED ON THE ABOVE
- 2. FREEDOMS DUE TO PUBLIC INTEREST, SECURITY OF STATE, PUBLIC ORDER, FRIENDLY RELATIONS WITH FOREIGN STATES, CONTEMPT OF COURT, INCITEMENT TO AN OFFENCE AND FOR MAINTENANCE OF DECENCY AND MORALITY. Constitution affords protection against arbitrary and excessive punishment to any person who commits an offence. There are four such guaranteed protections, namely -a person can be convicted of an offence only if he has violated a law in force at the time when he is alleged to have committed the offence. -No person can be prosecuted and punished for the same offence more than once. -No person can be subjected to a greater penalty than what might have been given to him under the law that was prevalent when he committed the offence. -No person accused of an offence can be compelled to be a witness against himself. The Constitution also provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. -the right of every person who is arrested to be informed of the cause of his arrest; -right to consult and to be defended by a lawyer of his choice, and -every person arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours. Right against exploitation.-There is prohibition on traffic in human beings and forced labour. No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Right to freedom of religion-All persons are equally entitled to freedom of Conscience and the right to freely profess, practice and propagate religion. Cultural and educational rights-Any section of the citizens residing in any part of the country having a distinct language, script or culture of its own has the right to conserve the same. There shall not be any discrimination based only on religion, race, caste, language or any of them in the matter of admission to state or state aided educational institutions. Right to constitutional remedies-that is the right to move the supreme court by appropriate proceedings for enforcement of fundamental rights is guaranteed. Fundamental Duties:A new part (Part IVA) to the Constitution was added from 31/01/1977 incorporating ten fundamental duties, which are as follows:-To abide by the constitution and respect its ideals and institutions, the national flag and the national anthem. -To cherish and follow the noble ideals which inspired our national struggle for freedom. -To uphold and protect the sovereignty, unity and integrity of India. -To defend the country and render national service when called upon to do so. -To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. -To value and preserve the rich heritage of our composite culture. -To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. -To develop the scientific temper, humanism and the spirit of enquiry and reform. -To safeguard public property and abjure (avoid or give up) violence.
- 3. -To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. There is no provision in the constitution for enforcing the fundamental duties and hence their existence in the constitution is mainly for laying down a code of conduct for citizens. The fundamental duties can also be used for interpreting ambiguous statues. Directive Principles of State Policy:As the name indicates, the principles enunciated in the constitution are directives to the various governments and its agencies to be followed in the governance of the country. It shall be the duty of the state to apply these principles in making laws. They are not enforceable by any court. Some of the important and relevant directive principles are: -Equal pay for equal work for both men and women. -a living wage, conditions of work ensuring a decent standard of life, to all workers. -workers’ participation in the management of industries. -organization of agriculture and animal husbandry on modern and scientific lines. -The operation of economic system does not result in the concentration of wealth and means of production to the common detriment. Hierarchy of Courts of Law in India:Supreme Court(SC) High Courts(HC) District Courts(DC) Sessions Courts Supreme Court has Writ Jurisdiction under Article 32 of the Constitution for enforcement of fundamental rights. The High Courts have power to issue writs for enforcement of fundamental and other legal rights under Article 226 of the Constitution of India. Under Article 227 of the Constitution, every High Court has the power of SUPERINTENDENCE over all courts and tribunals within its territorial jurisdiction. The Governor of a State appoints District Judges in consultation with the High Court. District Judge includes judge of a city civil court, Additional District Judge, Joint District Judge, Additional Sessions Judge and Assistant Sessions Judge. In Mumbai, on the civil side, the Courts have monetary jurisdiction, namely:Small Causes Court = Rent and Eviction matters and other cases up to Rs. 10,000/City Civil Court = up to Rs. 50,000/High Court = above Rs. 50,000/What is a Writ? What is a Writ Jurisdiction? Writ means ‘an order’. The Supreme Court for the enforcement of fundamental rights and every High Court for the enforcement of fundamental rights and for any other purpose has power to issue directions, orders or writs. It seems that High Courts have wider power to issue writs than the Supreme Court. A writ cannot be issued against a private person or private bodies like a trade union or the secretary of a co-operative union. But a writ can be issued against a department of the Govt., an officer of the Govt.(in his official capacity) or a statutory authority. These writs can be of the following types, namely:-
- 4. a) Habeas-Corpus: Habeas Corpus is a latin term which means ‘you may have the body’. It has only one purpose and that is to set at liberty a person who is confined without legal justification. b) Mandamus-The latin word ‘mandamus’ means ‘we order’. The writ of mandamus is an order of the Supreme Court or the High Court commanding a person or a body to do that which it is his, or its duty to do. The main ingredient of ‘mandamus’ is the existence of a statutory public duty upon the person or body against whom the ‘mandamus’ is sought. There must equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement of such public duty. c) Prohibition:- A writ of Prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction, or acting contrary to the rules of natural justice, for example, to restrain a judge from hearing a case in which he is personally interested. d) Quo Warranto:- According to this writ, the Supreme Court or the High Court may grant an injunction to restrain a person from acting in an office to which he is not entitled and may also declare that office to be vacant. e) Certiorari:- The Writ of Certiorari orders removal of a suit from an inferior court to a superior court. It may be used before a trial to prevent an excess or abuse of jurisdiction and to remove the case for trial to a higher court. It is also used after a trial to quash or cancel an order which has been without jurisdiction or against the rules of NATURAL JUSTICE. What are the rules of Natural Justice? All Courts, while dispensing justice, ensure that principles or rules of natural justice have been followed. Some of these rules are as follows:a) No one can be a judge in his own cause. A judge should be able to act impartially, objectively and without any bias. b) No one should be condemned without being heard. This is based on ‘audi alteram partem’(Hear the other side) c) No one can be penalized on the ground of conduct which was not penal on the day it was committed. b) A quasi judicial order must be supported by reason. Appeals to Supreme Court:a) From Civil Proceeding:An appeal can be made to Supreme Court from the final order of a High Court in India, if in the opinion of the High Court, a substantial question of law of general importance is involved and in the opinion of the High Court, the said question needs to be decided by the Supreme Court. b) From Criminal Proceeding:An appeal can be made to Supreme Court from the final order of a High Court in India when:-the High Court reversed an appeal of acquittal order of an accused and sentenced him to death. -the High Court withdrew for trial before itself any case from any subordinate court and convicted the accused person and sentenced him to death. -the High Court certifies that it is a fit case for appeal to the Supreme Court. What are the General Principles of Doctrine of Precedence? The FIRST rule is that each lower court is bound by the decisions of the courts above it. The SECOND rule is that, in general, higher courts are bound by their own decisions. The decisions of a High Court are binding on all the subordinate courts and tribunals within its jurisdiction. The decision of one High Court is only of persuasive value in a court which is within the
- 5. jurisdiction of another High Court, when it is not in conflict of a decision in the High Court within whose jurisdiction, the court is situated. In case of any conflict between two decisions of co-equal benches, generally the later decision is followed. In a High Court, a single judge constitutes the smallest bench. A bench of two judges is called a Division Bench. Three or more judges constitute a full bench. Pre-Constitution(1950) Privy Council decisions are binding on the High Courts unless overruled by the Supreme Court. The Supreme Court is the ultimate court of law in India whose decision is final and cannot be appealed against. When the Supreme Court expresses its view, it shall be considered as OVERRIDING all contrary views expressed on the point in an earlier decision of the Supreme Court. Thus, the Supreme Court is not bound by its own decisions. However, in practice, its earlier decisions cannot be departed unless erroneous and detrimental to public. Any observation made by a court while deciding a case, is known as obiter dictum. Obiter dicta are not the final decisions of the court but only the observations of the court while deciding a case. Difference between Civil and Criminal cases:Civil cases are for enforcing civil laws like recovery, injunction, Intellectual Property laws etc. Criminal cases are for offences under Indian Penal Code(IPC) like Cheating, decoity, trespass, Criminal Conspiracy, murder, attempt to commit murder etc., How civil and criminal laws are set in motion? Civil laws are set it motion by filing a recovery suit, suit for Injunction etc. in a civil court. Criminal laws are set in motion by filing a FIR with the Police or by making a private complaint in the magistrate’s court. What is a Public Interest litigation(PIL)? Public Interest litigation is a proceeding in which an individual or group seeks relief in the interest of the general public and not for its own purpose. PIL is brought before the court not for the purpose of enforcing the right of one individual against another as happens in case of ordinary litigation. PIL is usually intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically backward position should not go unnoticed and un-redressed or un-compensated. PIL is also called ‘Social Action Legislation’. What are three organs of the Government? The Legislature, Executive and the Judiciary. The Legislature enacts the law, the Judiciary interprets the law and the Executive implements the law. The powers of these three organs are separated by the constitution. However, there is always a conflict, where one organ alleges that the other organ interferes in its jurisdiction. What is a subordinate or a delegated legislation? When an Act lays down that the executive can make rules or regulations under that particular Act, the rules or regulations enacted by the executive are known as the subordinate or delegated legislation. What is JUDICIAL INDEPENDENCE? The judiciary should be free from the control of the executive as well as the legislature. How it is achieved? -Specific procedure for the appointment of the judges of the High Courts and the Supreme Court.
- 6. -Their Service conditions have been prescribed so as to ensure judicial independence. -Provision made for removal of judges under certain circumstances. The removal of a Supreme Court Judge is by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of the House and by a majority of not less than two thirds of the members of that House present and voting for proven misbehaviour or incapacity. This procedure applies to the removal of the High Court Judges also. -Every judge of the Supreme Court is appointed by the President who also consults the Chief Justice of India in the appointment of other judges. -The Chief Justice and the other judges of the High court are appointed by the President after consultation with the Chief Justice of India and the Governor of the respective states. In case of appointment of any other judge of the High Court,(other than the chief justice), in consultation with the chief justice of that High Court also. What is meant by Law of Limitation? What is meant by a limitation period for filing a suit or criminal case before courts or a complaint or an application before quasi judicial authorities or an appeal before the higher court or the higher quasi judicial authority? In India, the Limitation Act, 1963 provides for the law of limitation. The law of limitation stipulates the time period within which a civil suit has to be filed before a court of law or a criminal complaint has to be filed before a magistrate etc. The jurisprudence or the reason for enacting the Limitation Act, 1963 is that the courts in India do not like a person to be lax or lazy in enforcing his legal rights. It also does not like the sword of Damocles to hang over the head of a person indefinitely. If a person has a legal right which is denied to him by another person, then he has to approach the relevant court with proper jurisdiction within a particular time frame fixed by the Limitation Act, 1963. If no suit or case is filed within the stipulated period, then that remedy to enforce the right is deemed to have been barred by the Law of Limitation. Thereafter, he cannot approach the court of law for enforcing such a right. But it is very important to note that the right itself is not extinguished but only the remedy through the Court of law is barred. However, where before the expiry of the limitation period, if the borrower or his agent acknowledges the liability in writing, duly signed or pays any amount towards the debt under his signature, the period of limitation will extend for the similar period prescribed under the Limitation Act. The Period of Limitation and the time when the period begins to run in a few cases are as follows:1) for money payable for money lent – The period of limitation , that is a suit for recovery has to filed within three years from the date the loan is made. 2) for money deposited under an agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable. _ The period of limitation is three years from the date when the demand is made. What is the importance of Stamping of Documents? The rates of Stamp duty, in most cases, are prescribed under the respective State Stamp Acts and hence on these items or Documents, the stamp duty varies from state to state. There are certain documents for which stamp duty is prescribed under the Indian Stamp Act, which are as follows, namely:1)Bill of Exchange, 2)Promissory Note, 3)Bill of Lading, 4)Debentures, 5)Letters of Credit, 6)Receipts and 7) Transfer form
- 7. Stamp duty results in to an income for the Government, either central or the respective State Governments. It is very important to note that it is the INSTRUMENT that attract stamp duty and not the TRANSACTION. In other words, Stamp law comes into operation when an instrument as described in Stamp Act is obtained. If an instrument is not properly stamped or is deficiently stamped, the said instrument will not be accepted in evidence in the court of law unless the deficient stamp duty is paid along with the penalty prescribed. IT IS VERY IMPORTANT NOTE THAT BILLS OF EXCHANGE AND PROMISSORTY NOTES, IF NOT STAMPED OR UNDERSTAMPED, IS VOID AND CANNOT BE REVIVED BY PAYING THE DEFICIENT STAMP DUTY AND PENALTY. A document has to be stamped on or before the execution of the document. Execution means signing a document to make it operative. A stamp must be properly cancelled and if not properly cancelled, the Instrument is deemed to be UNSTAMPED. This is because, a stamp which is not cancelled, may be used again and this would lead to a loss of revenue to the Government. Refund of stamps purchased will be received only if an application is made within six(6) months of the date of the date of purchase of stamp. A cognizable offence is a case where the police can arrest without a warrant. All cognizable cases involve criminal offences. Murder, robbery, theft, rioting, and counterfeiting are some examples of cognizable offences. Non-cognizable offences are those criminal infractions, which are relatively less serious. Examples of non-cognizable offences include public nuisance, assault and mischief. The police cannot register criminal cases or cause arrests with regard to non-cognizable offences. In all such cases, the police have to secure permission from a magistrate or judge for registration of a criminal case. An offence can be bailable or non bailable. Oxford Dictionary defines BAIL as , setting an accused person free before they are tried, often on condition that a sum of money is promised to the court to make sure the accused person attend the trial or money paid by or for such person. In case of a bailable offence bail is a matter of right. In case of bailable offence, one has to only file the bail bonds and no application is required. In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and and application has to be made in court to grant bail. Police custody means custody in police lock up and Judicial custody means custody in a jail under court orders. ********0********