WHAT IS LAW? 9/10/20151santhi narayanan. Law is... an instrument of social justice of the state that...

WHAT IS LAW?

04/19/23 1santhi narayanan

Law is...an instrument of social justice of the state that seeks to provide justice, stability & security in the society


Features

• Everybody enjoys equal protection under laws(Equality before Law)

• No man is above the law• Law of the land is important• ‘IGNORANCIA JURIS NON EXQUISITE’

– ignorance of law is no excuse


LAW• Since time immemorial every society has its

own law. • Law is a social science – grows with society.• Law means different things in different times

– highly dynamic concept with core values• Dharma (Hindu), Hukum (Islamic), Jus

(Roman), Droit (French), Richt (German)


What is law?• Romans: Law is the standard of what is just

and unjust.• Hindus: Law is the command of God. Hence,

the Ruler is also bound by law.• Austin: Law is the aggregate of rules set by

men as politically superior, or sovereign, to men as politically subject. In other words, law is command of the sovereign.

• Salmond: The body of principles recognized and applied by the state in the administration of justice.


Sources of law


Customary law

• A custom that is observed continously for a very long period of time.


Our India……..

04/19/23 santhi narayanan 8

Legislation

• Promulgation of legal rules by an authority which has the power to do so. (Parliament, Legislatures, President, Governor, King/Queen etc.). Also known as Supreme Legislation. It is also known as statutes.


Indian Context

• India adopted the Constitution on 26 January 1950

• Highest law of the land• Constitution providing the governing mechanism

of the country• Executive having powers to make legislation.• Dept of legislative affairs


• Every Act is a piece of legislation made into law after passing the process of enactment.

Draft Bill to Act


Procedure

• A Bill (draft form of the law)is introduced say in the lok sabha by a member of parliament

• Lok Sabha takes it for discussion

• A Bill can be accepted, rejected or referred to a select committee for necessary revision


Making of an Act

• If it is accepted or passed, it is sent to the other house of the Parliament

• The Rajya Sabha can accept it or reject it with modifications

• The bill is sent to President for giving his assent


Contd-

• Thereafter the Bill becomes an Act

• After publishing in the Official Gazette, the Act comes into operation either from the date of publication or on a date as may be specified in the Act

• Thus, a new law come into being by Parliament Activity


Contd---

• Acts provide overall framework and delegates the function of providing details to the executive.

• Executive provide the details for the working of an Act by making rules, notifications regulations and government orders


Case Law

• Acts are written in a given context within certain horizons.

• Over period of time Act remains the same but the contexts differ

• Hence, reading the text becomes crucial to decide the working of law

• Courts create law by giving new meaning to the legal provisions.


Case Law


Precedent• According to Oxford Dictionary, Precedent is a

previous instance or case which is, or may be taken as an example of rule for subsequent cases, or by which some similar act or circumstances may be supported or justified.

• Precedents are the results of creative role of the judges while dealing cases.


Contd---

• Res judicata- A matter already settled in court; cannot be raised again- is an instance of precedent.

• Stare-decisi- stand by decided cases

• Ratio decidendi - law declared or law laid down

• Obiter dicta- “said by the way” cannot be considered as a precedent


General Classification of Law

• Public Law – Law that determines and regulates the organization and functioning of states + Relation of the state with its subjects• Constitutional Law• Administrative law• Criminal law

• Private Law – Regulates the relations of citizens with each other ex: law of contract, property


Classification of law

• Criminal law: Certain offences are considered as wrong doings against the state and are punishable by the state. Ex: Murder, Acts of terrorism

• Civil Law: Concerned with the rights and duties of individuals towards each other ex: Law of Tort – monetary damage are sought for the damage or injury caused.


Contd…….

• Substantive law: law on a specific subject: Deals with the Legal rights, obligations and relationships of people versus people or between them and the state.

• Procedural law: It lays down methods by which substantive Law is made and administered.


Classification of Law• International Law; It is a set of generally accepted

rules and regulations controlling the conduct of nations, international organizations and individuals.

• International Court of Justice• World Trade Organization (Governing

International Business transactions)• GATT• Accepted rule of territorial limit: 12 nautical

miles from the coast


Different Laws that you as manager will come across……….. {Indian context}

• General Laws, • Procedural Laws• Commercial & Corporate Laws• Environmental Laws• Labor and Industrial Laws• Taxation Laws


General Laws• The Constitution of India [395 Articles divided into 22

Parts and 12 Schedules – fundamental rights, directive principles,)

• The Indian Penal Code, 1860 [ General Penal code contained in 511 sections divided into 23 chapters)

• Family Laws /Personal laws (Hindu, Muslim & Christian – governing majority, adoption, inheritance of property, marriage, divorce, guardianship etc. in different Acts)


Procedural codes• The Code of Civil Procedure, 1908 [158

sections and 51 Orders ] (Amendments made)

• How feasible is to have a Common Civil Code?.....Ponder Over

• The Code of Criminal Procedure, 1973 [484 sections divided into 38 chapters with 2 schedules – 1st schedule about classification of offences and 2nd schedule contains various forms used in following the procedure.]


Contd -

• The Indian Evidence Act, 1872 [167 sections divided into 11 parts)

• Facts are the basis on which the rights and liabilities are ascertained to determine the case before hand.

• Deals with proving facts by evidence–oral or written or circumstantial.

• All types of evidence is neither relevant nor admissible in courts.


Commercial & Corporate Laws

• The Indian Contract Act, 1872• The Indian Partnership Act 1932• The Negotiable Instruments Act, 1881• The Companies Act, 1956• The Foreign Exchange Management Act,

1999• The Competition Act, 2002• The Securities Exchange Board of India

Act, 1992 • The Consumer Protection Act, 1986


Environmental Laws:

• The Water (Prevention and Control of Pollution) Act, 1973

• The Air (Prevention and Control of Pollution) Act, 1981

• The Environment (Protection) Act, 1986


Industrial and Labor Laws

• The Factories Act, 1948• The Industrial Disputes Act, 1947• The Trade Unions Act, 1926• The Employees’ Provident Funds and

Miscellaneous Provisions Act, 1952• The Employees’ State Insurance Act, 1948• The Industrial Employment (Standing Orders) Act,

1946• The Workmen’s Compensation Act, 1923• The Maternity Benefit Act, 1961• The Minimum Wages Act, 1948• The Payment of Bonus Act, 1965• Shops and Establishment Acts of concerned States.


Direct & Indirect Taxation Laws:

• The Income Tax Act, 1961• The Customs Act, 1962 • The Central Excise Act. 1944• The Central Sales Tax Act, 1956 & concerned

State General Sales Tax Acts.• Host of State Acts & Rules relating to sales,

excise etc. • NOW GST…………


• Law (provisions of Act) is binding in nature on those to whom it applies – individuals, general society, corporates, firms, or any groups in the society.

• To regulate different subject matters, a separate law may be enacted, such as taxation, companies, environment, labour and industry matters, minimum wages, crimes, procedures of courts – both criminal and civil courts, manner of ascertaining facts by evaluating the evidence etc.


• Each Act is identified with a Title such as “The Indian Contract Act, 1872”, “The Companies Act, 1956” etc.

• The year at the end of the name of the Act signifies the year in which it is enacted as law.

• Below the Title of Act, a preamble will be there which gives the purpose or object for which that Act is enacted.


• The entire text of the Act is divided into various Sections and some Acts may also have Schedules with cross reference to a particular Section of the Act

Layout



The 1st Section of any Act contains three sub-sections, namely:

(i) Short Title (This Act may be called …”The Indian Contract Act, 1872”)

(ii) Extent (it extends to the whole of India or to any part of the country or a State)

(iii) Commencement (it gives the date from which the Act commences its operation or a power is given to the Government to declare any date in future to give effect to the provisions of the Act).

Contd-• Section 2: Interpretation or

Definitions (of certain terms and words used in the text of the Act are interpreted or defined and that definition should be relevant for interpretation of any matter dealt in the Act).

• Subsequent Sections sometimes create certain authorities to enforce the provisions of the subject matter of that Act (Income Tax Officers, Company Law Board, Enforcement Directorate, etc.)


Contd-• Appellate Authorities are created within

the Act to provide a chance to appeal against the actions or orders of the Enforcement Authorities of the Act.

• When no Enforcement Authorities or Appellate Authorities are stated in the Act, then normal Civil Courts of the country deal with such cases. (As in the case of Contract Act, Sale of Goods Act, Partnership Act etc.)


Constitution of India

• Fundamental Law of the Land• Preamble – Socialist, Secular, Democratic,

Republic• Constitution provides for separation of

powers

Executive- Applies law

Legislature-makes laws

Judiciary- Interprets law


Constitution of India

• Fundamental rightsFundamental rights• Right to equality• Right to freedom of

speech• Right to life and

personal Liberty• Right against

exploitation• Right to freedom of

religion

• Directive PrinciplesDirective Principles of State policy• Equal justice and

free legal aid• Organisation of

village Panchayats• Protection and

improvement of the environment


Fundamental dutiesFundamental duties

• Respect the National Flag, National anthem

• Value and preserve the rich cultural heritage

• Safeguard public property


Validity of Law

• The validity of law passed by the legislature can be questioned in any court of law • whenever the law has violated

any provisions of the Constitution• violation of fundamental right

• The courts can declare a law to be unconstitutional (concept of ultra vires)


Indian Judiciary


Subordinate courts


Civil Case/Suit

• Plaintiff vs. Defendant

RamprasadBaldeo

Parties


Criminal Case

• State vs Accused

Charles ShobrajCountry

Parties


public interest litigation• litigation for the protection of the public

interest.• litigation introduced in a court of law, not

by the aggrieved party but by the court itself or by any other private party.

• It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court..


Public interest litigation• The power given to the public by courts

through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body.

• Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon.


public interest litigation

• The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual



• Public interest litigation or social interest litigation today has great significance and drew the attention of all concerned.

• The traditional rule of “Locus Standi” that a person, whose right is infringed alone can file a petition, has been considerably relaxed by the Supreme Court in its recent decisions.



• Now, the court permits public interest litigation at the instance of public spirited citizens for the enforcement of constitutional o- legal rights. Now, any public spirited citizen can move/approach the court for the public cause (in the interests of the public or public welfare) by filing a petition:



• in Supreme Court under Art.32 of the Constitution;

• 2. in High Court under Art.226 of the Constitution; and

• 3. in the Court of Magistrate under Sec.133, Cr. P.C.


alternative dispute resolution methods• The system of dispensing justice in India

has come under great stress for several reasons mainly because of the huge pendency of cases in courts.

• In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for alternative dispute resolution methods.


ADR• alternative modes of dispute resolution

(ADR) - arbitration, conciliation, mediation and negotiation

• The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts.

• In conciliation/mediation, parties are free to withdraw at any stage of time. It has been seen that resolution of disputes is quicker and cheaper through ADR.

• .


ADR• The parties involved in ADR do not

develop strained relations; rather they maintain the continued relationship between themselves


arbitration• The process of arbitration can start only if

there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute.

• Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.


Mediation• Mediation, a form of alternative dispute

resolution (ADR) or "appropriate dispute resolution", aims to assist two (or more) disputants in reaching an agreement.

• The parties themselves determine the conditions of any settlements reached— rather than accepting something imposed by a third party. The disputes may involve (as parties) states, organizations, communities, individuals or other representatives with a vested interest in the outcome.


Conciliation• Conciliation is a less formal form of

arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.


WHAT IS LAW? 9/10/20151santhi narayanan. Law is... an instrument of social justice of the state that...

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