Law of India

Ancient India represented a distinct tradition of law, and had a historically independent thought of legal theory and practice. The Dharmaśāstras played an important role. The Arthashastra, dating from 400 BC and the Manusmriti, from 100 AD, were influential treatises in India, texts that were considered authoritative legal guidance.[4] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[5]

Early in this period, which culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition.[6] Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character.[7]

After the Muslim conquest in the Indian subcontinent, Islamic Sharia law spread with the establishment of Delhi Sultanate, Bengal Sultanate and Gujarat Sultanate.[8] The Corps of Forty also played a major role by establishing some Turkish law in India.[9]

In the 17th century, when the Mughal Empire became the world's largest economy, its sixth ruler, Aurangzeb, compiled the Fatawa-e-Alamgiri with several Arab and Iraqi Islamic scholars, which served as the main governing body in most parts of South Asia.[10][11]

With the advent of the British Raj, there was a break in tradition, and Hindu and Islamic law were abolished in favour of British common law.[12] As a result, the present judicial system of the country derives largely from the British system and has few, if any, connections to Indian legal institutions of the pre-British era.[13]

The Constitution of India, which came into effect on 26 January 1950 is the lengthiest written constitution in the world.[14] Although its administrative provisions are to a large extent based on the Government of India Act 1935, it also contains various other provisions that were drawn from other constitutions in the world at the time of its creation.[14] It provides details of the administration of both the Union and the States, and codifies the relations between the Federal Government and the State Governments.[15] Also incorporated into the text are a chapter on the fundamental rights of citizens, as well as a chapter on directive principles of state policy.[16]

The constitution prescribes a federal structure of government, with a clearly defined separation of legislative and executive powers between the Federation and the States.[17] Each State Government has the freedom to draft its own laws on subjects classified as state subjects.[18] Laws passed by the Parliament of India and other pre-existing central laws on subjects classified as central subjects are binding on all citizens. However, the Constitution also has certain unitary features, such as vesting power of amendment solely in the Federal Government,[19] the absence of dual citizenship,[20] and the overriding authority assumed by the Federal Government in times of emergency.[21]

The Indian Penal Code formulated by the British during the British Raj in 1860, forms the backbone of criminal law in India. The Code of Criminal Procedure, 1973 governs the procedural aspects of the criminal law.[22]

Jury trials were abolished by the government in 1960 on the grounds they would be susceptible to media and public influence. This decision was based on an 8-1 acquittal of Kawas Nanavati in K. M. Nanavati vs. State of Maharashtra, which was overturned by higher courts.

In February 2011, the Supreme Court of India ruled that criminal defendants have a constitutional right to counsel.[23]

Capital punishment in India is legal. Renuka Shinde and Seema Mohan Gavit, who were guilty of kidnapping and killing at least 13 children under 6 years, are currently lodged in Yerwada Central Jail. They were also the first women in India to be given capital punishment. The last execution was conducted on 20 March 2020, where the death sentence was awarded to the convicts—Pawan Gupta, Akshay Singh Thakur, Vinay Sharma, and Mukesh Singh—by a trial court, a decision which was upheld by Delhi High Court and Supreme Court as well.[24]

The main contract law in India is codified in the Indian Contract Act, which came into effect on 1 September 1872 and extends to all India. It governs entrance into contract, and effects of breach of contract. Indian Contract law is popularly known as mercantile law of India. Originally Indian Sales of Goods Act and Partnership Act were part of Indian Contract act, but due to needed amendment these acts were separated from Contract Act. The Contract act occupies the most important place in legal agreements in India.

Indian labour law are among the most comprehensive in the world. They have been criticised by the World Bank,[25][26] primarily on the grounds of the inflexibility that results from government needing to approve dismissals. In practice, there is a large informal sector of workers, between 80 or 90 per cent of the labour force, to whom labour rights are not actually available and laws are not enforced.

The current Indian company law was updated and recodified in the Companies Act 2013.

Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.

While Indian tort law is generally derived from English law, there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the Constitution, as well as a system of absolute liability for businesses engaged in hazardous activity.

As tort law is similar in nature across common law jurisdictions, courts have readily referred to case law from other common law jurisdictions such as the UK,[27] Australia,[28] and Canada[29] in addition to domestic precedent. However, attention is given to local norms and conditions, as well as India's distinct constitutional framework in applying foreign precedent. The legislature have also created statutes to provide for certain social conditions. Similar to other common law countries,[30] aspects of tort law have been codified.[31]

Certain conduct which gives rise to a cause of action under tort law is additionally criminalised by the Indian Penal Code[32] or other criminal legislation. Where a tort also constitutes a criminal offence, its prosecution by the state does not preclude the aggrieved party from seeking a remedy under tort law. The overlap between the two areas of law is a result of the distinct purposes each serves and the nature of the remedies each provides. Tort law aims to hold a tortfeasor accountable and consequently tort actions are brought directly by the aggrieved party in order to seek damages, whereas criminal law aims to punish and deter conduct deemed to be against the interests of society and criminal actions are thus brought by the state and penalties include imprisonment, fines, or execution.

In India, as in the majority of common law jurisdictions, the standard of proof in tort cases is the balance of probabilities as opposed to the reasonable doubt standard used in criminal cases or the preponderance of the evidence standard used in American tort litigation, although the latter is extremely similar in practice to the balance of probabilities standard. Similar to the constitutional presumption of innocence in Indian criminal law, the burden of proof is on the plaintiff in tort actions in India. India,[33] like the majority of common law jurisdictions in Asia [34][35] and Africa,[36] does not permit the use of juries in civil or criminal trials, in direct contrast to America and the Canadian common law provinces which retain civil juries as well as to jurisdictions like England and Wales or New Zealand[37] which permit juries in a limited set of tort actions.

Indian tax law involves several different taxes levied by different governments. Income Tax is levied by the Central Government under the Income Tax Act 1961. Customs and excise duties are also levied by the Central government. Sales tax is levied under VAT legislation at the state level. Since a new tax reform in the form of GST was levied through constitutional amendment and came into existence since 1 July 2017 which took the place of excise duties and VAT.

The authority to levy a tax is derived from the Constitution of India which allocates the power to levy various taxes between the Centre and the State. An important restriction on this power is Article 265 of the Constitution which states that "No tax shall be levied or collected except by the authority of law."[38] Therefore, each tax levied or collected has to be backed by an accompanying law, passed either by the Parliament or the State Legislature. In 2010-11, the gross tax collection amounted to ₹ 7.92 billion (Long scale), with direct tax and indirect tax contributing 56% and 44% respectively.[39]

Trust law in India is mainly codified in the Indian Trusts Act of 1882, which came into force on 1 March 1882. It extends to the whole of India except for the state of Jammu and Kashmir and Andaman and Nicobar Islands. Indian law follows principles of English law in most areas of law, but the law of trusts is a notable exception. Indian law does not recognize "double ownership", and a beneficiary of trust property is not the equitable owner of the property in Indian law.

Family laws in India are different when Warren Hastings in 1772 created provisions prescribing Hindu law for Hindus and Islamic law for Muslims, for litigation relating to personal matters.[46] However, after independence, efforts have been made to modernise various aspects of personal law and bring about uniformity among various religions. Recent reform has affected custody and guardianship laws, adoption laws, succession laws, and laws concerning domestic violence and child marriage.

Nationality law or citizenship law is mainly codified in the Constitution of India and the Citizenship Act of 1955. Although the Constitution of India bars multiple citizenship, the Parliament of India passed on 7 January 2004, a law creating a new form of very limited dual nationality called Overseas Citizenship of India. Overseas citizens of India have no form of political rights or participation in the government, however, and there are no plans to issue to overseas citizens any form of Indian passport.

Law enforcement in India is undertaken by numerous law enforcement agencies. Like many federal structures, the nature of the Constitution of India mandates law and order as a subject of the state, therefore the bulk of the policing lies with the respective states and territories of India.

At the federal level, the many agencies are part of the Union Ministry of Home Affairs, and support the states in their duties. Larger cities also operate metropolitan police forces, under respective state governments. All senior police officers in the state police forces, as well as those in the federal agencies, are members of the Indian Police Service (IPS) and Indian Revenue Service (IRS), two of the several kinds of civil services. They are recruited by the Union Public Service Commission.

Government usually appoints Law Commission panels to study and make non-binding recommendations for the law reform. In first 65 years 1,301 obsolete laws were repealed, including 1029 old laws in 1950 by Jawaharlal Nehru and 272 old laws in 2004 by Atal Bihari Vajpayee. After that 1,824 such laws were repealed by Narendra Modi government between May 2014 to December 2017, taking the total to 3,125.[54]

Subordinate, delegated or secondary legislation covers rules, regulations, by-laws, sub-rules, orders, and notification.[55][56]

• rule: according to the General Clauses Acts, 1897, "rule" shall mean a rule made in exercise of a power conferred by any enactment, and shall include a Regulation made as a rule under any enactment.[57][58]

• History of Indian law
• Central Bureau of Investigation
• Law enforcement in India
• Legal systems of the world
• Indian criminal law