Business Law

Introduction to Law

Schools of Law

Natural School of Law

Natural law theory is a legal theory that recognizes law and morality as
deeply connected, if not one and the same. Morality relates to what is
right and wrong and what is good and bad. Natural law theorists believe
that human laws are defined by morality, and not by an authority figure,
like a king or a government. Therefore, we humans are guided by
our human nature to figure out what the laws are, and to act in
conformity with those laws.

The term 'natural law' is derived from the belief that human morality
comes from nature. Everything in nature has a purpose, including
humans. Our purpose, according to natural law theorists, is to live a
good, happy life. Therefore, actions that work against that purpose -- that
is, actions that would prevent a fellow human from living a good, happy
life -- are considered 'unnatural', or 'immoral'.

Laws have a purpose too: to provide justice. From a natural law

perspective, a law that doesn't provide justice (an unjust law) is
considered 'not a law at all.' Therefore, a law that is flawed is one that no
one should follow. In short, any law that is good is moral, and any moral
law is good.

Laws are command of God

Laws are not made by authority
Laws are defined by morality

EXAMPLES –

Article 14 of Indian Constitution – Equality Before the Law - The

State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India

Article 21 – Right to Life and Personal Liberty

Article 19- Freedom of Expression and Speech,

Freedom to assemble,
Freedom to form associations/unions/, societies
Freedom to move freely,
Freedom of residence Freedom of profession
Positive School of Law

Legal positivism is a legal theory that is the opposite of the natural law
theory. Legal positivists believe that a law can be deeply flawed, and yet
still be considered

Man Made Law are human-made laws that oblige or specify an action. It
also describes the establishment of specific rights for an individual or
group.
The concept of positive law is distinct from "natural law", which
comprises inherent rights, conferred not by act of legislation but by
"God, nature, or reason."[1]Positive law is also described as the law that
applies at a certain time (present or past) and at a certain place,
consisting of statutory law, and case law as far as it is binding. More
specifically, positive law may be characterized as "law actually and
specifically enacted or adopted by proper authority for the government of
an organized jural society.

Laws are made by man for man

Oblige or specify the act
Laws are backed by sanctions in case of violation

Examples

Motor Vehicle Act

Trespassing
Reservation for EWS
Indian Penal Code – Laws of Blasphemy

Historical School of Law

Historical School of Jurisprudence is one of the schools of law after Natural

Law. This law further believes that law, in general, is an outcome of years
of historical development. This studies not only the concept but also the
origin of law. Moreover, this law has a very complex concept. Its
understanding depends and varies with every individual. In other words,
everyone has a different understanding of the law. For example, a lawyer
and a law student, both understand the law as a solution to every dispute.
However, an ordinary citizen perceives law with the purpose to inflict and
impose punishment.
The historical school of law, the law is the result of past forces and past
influencers. Moreover, the law is built and grown on the general
consciousness of people. The consciousness, however, starts from the very
beginning of the society. In addition, some of the factors that affect this
long historical development are as follows: (i) Society and social customs.
(ii) Many religious and convention principles. (iii) Also, the economic
needs of society play a crucial role. (iv)Last but not the lease, the needs,
and desires of the citizens.

Social customs are the sources of Law

The formation of law is by the people & not by some divine origin
Laws can be made to prohibit the social customs as well
Society contains People  Practice --- 20 Years --- Customs  Law

Example

Saptpadi (Seven steps against the fire in Hindu marriage) – Became

part of Law in Section 7 of Hindu Marriage Act, 1955

Prohibition of Social Custom – Prevention of Sati Act 1987

Sociological School of Law

The idea of Sociological School is to establish a relation between the Law

and society. This school laid more emphasis on the legal perspective of
every problem and every change that take place in society. Law is a
social phenomenon and law has some direct or indirect relation to
society. Sociological School of Jurisprudence focuses on balancing the
welfare of state and individual was realized. In the words of Ehrlich, “At
the present as well as at any there time, the centre of gravity of legal
development lies not in legislation, nor in the juristic decision, but in
society itself. ”

Sociological School of Jurisprudence studies the relationship between the

law and sociology. Every problem or concept has two different aspects.
One is sociological view and other is a legal aspect. For example Sati.

Laws are made for the benefit of the society

Laws and society are related to each-other

Main Source of Law – Society  Affirmative Action to fill the issues

& concerns
Affirmative Action - A policy in which an individual's color, race,
sex, religion or national origin are taken into account to increase
opportunities provided to an underrepresented part of society.

Example

Repeal of Section 377 of IPC – Decriminalization of Homosexuality

Section – 149 of Companies Act 2013 – Ensuring Gender Diversity

in Boardroom – Solving Glass Ceiling

Realistic School of Law

Judge made laws are the legal doctrines established by judicial

precedents rather than by a statute. In other words, judge interprets a
law in such a way to create a new law. They are also known as case law.
Judge made laws are based on the legal principle “stare decisis” which
means to stand by that which is decided.
Over time, as the lawmaking arm of the government makes and amends
the laws that govern the land, judges and the body of elected lawmakers
(also known as the legislature) work together to improve the laws,
making them permanent and generally applicable. Though it's the job of
the legislature to make the laws that state how citizens should live, it
remains the job of the judges to interpret them. So, the question isn't
whether or not judges are involved in the law-making process but
whether they're correctly interpreting the law for justice to be served.
Therefore, when judges are called upon to understand and interpret the
law and the godly motives of the lawmakers for making the law, they
have the freedom to employ their discretion to make decisions never
before made by other judges. But, they must abide by the written law,
even though they're not strictly limited to it.

Judges have and use the power to create new judge made laws in difficult
cases.
There are two fields in which judges play a role in creating laws:

 In developing common law

 In interpreting statutes

Laws are made by the judges

Laws are made in the best interest of the society
Doctrine of Precedent (Art. 141)

Example

Vishakha vs. State of Rajasthan

During the 1990s, Rajasthan state government
employee Bhanwari Devi who tried to prevent child marriage as
part of her duties as a worker of the Women Development
Programme was raped by the landlords of the gujjar community.
The feudal patriarchs who were enraged by her (in their words: "a
lowly woman from a poor and potter community") 'guts' decided to
teach her a lesson and raped her repeatedly.[6] The rape survivor
did not get justice from Rajasthan High Court and the rapists
were allowed to go free. This inspired several women’s groups and
non-governmental organizations to file a petition in the Supreme
Court under the collective platform of Vishaka

Doctrine of Precedent – Article 141

The doctrine of precedent is expressly incorporated in India by

Article 141 of the Constitution of India, 1950. Article 141 provides
that the decisions of the Supreme Court are binding on all courts
within the territory of India. Although there is no express
provision, but by convention the decisions of a High Court are
binding on all lower courts within the territorial jurisdiction of
that High Court. Similarly, a decision of a higher Bench , is
binding on the lower Bench.

When a higher court is of the opinion that the principle of law

enunciated in a decision is not correct it may overrule that
judgment and lay down the correct principle of law. A judgment
can be overruled only by a higher court. Lowers courts do not have
such power. This is very clear from the very nature of the doctrine
of precedent.

Stare Decisis - Stare decisis is a legal doctrine that obligates

courts to follow historical cases when making a ruling on a similar
case. Stare decisis ensures that cases with similar scenarios and
facts are approached in the same way.

Indian Legal System

Types of laws in the Indian legal system

The Constitution of India, 1950 is the foremost law that deals with the
framework of the codes, procedures, fundamental rights and duties of
citizens and powers, and duties of government. The laws in India are
interconnected with each other forming a hybrid legal system. The
classification of laws in the Indian judiciary system:

Criminal Law

Criminal law is concerned with laws pertaining to violations of the rule of

law or public wrongs. Criminal law is governed under the Indian Penal
Code, 1860, and the Criminal Procedure Code, 1973. The Indian Penal
Code, 1860, defines the crime, its nature, and punishments whereas the
Criminal Procedure Code, 1973, defines exhaustive procedure and
punishments of the crimes.

Murder, rape, theft, and assault are all examples of criminal offences
under the law.

Civil Law

Matters of disputes between individuals or organisations are dealt with

under Civil Law. Civil courts enforce the violation of certain rights and
obligations through the institution of a civil suit. Civil law primarily
focuses on dispute resolution rather than punishment. The act of process
and the administration of civil law are governed by the Code of Civil
Procedure, 1908. Civil law can be further classified into Tort law, Family
Law, Property Law, and Contract law.

Some examples of civil law are defamation, breach of contract, and a

dispute between landlord and tenant.

Common Law

A judicial precedent or a case law is common law. A law passed by the

Supreme Court will be obligatory upon the courts and within the territory
of India under Article 141 of the Indian Constitution. A common law
theory, Natural justice, often known as “Jus Natural,” encompasses
statutory provisions for justice. Nemo judex in causa sua (Rule against
Prejudice), audi alteram partem (Rule of fair Hearing), and reasoned
decision are the rules of Natural Justice. The doctrine of “Stare Decisis”
is the principle for the common law. It is a Latin word that literally
means “to stand by that which is decided.” The doctrine of Stare
Decisis states the obligation of courts to follow the same principle or
judgement established by previous decisions while ruling a case where
the facts are similar. A judgement can override or alter a common law,
but it cannot override or change the statute.
Statutory Law

Statutory legislation refers to any written law approved by a legislative

body to regulate the conduct of its citizens. The Central Government
makes laws through Parliament, the state government makes laws
through Vidhan Sabha, and the Local Government makes laws through
municipalities. A bill is introduced in the legislature and for it to become
an act voted upon by the members of both houses requires the assent of
the President. The President of India has veto powers over his assent.

Court System

The Indian Judicial system has one integrated court system to deliver and
administer state and union laws. All the Courts and the Tribunals &
Regulators work together for the good of the nation. At the top of the
court structure is the Supreme Court, followed by the State High Courts,
the subordinate courts that comprise of District Courts amongst others.

Supreme Court of India

Established in 1774 as per Regulating Act 1773

Composition = 1 Chief Justice & 30 other judges

The jurisdiction and powers given to the Supreme Court are defined
under Articles 131 to 142 of the Indian Constitution and consist of
appellate jurisdiction and writs. It has the power to hear a case for the
first time as well as to review a lower court’s decision. Article 32 grants
original jurisdiction to the Supreme Court for the enforcement of
fundamental rights of citizens and Article 139 for the enforcement of
rights other than fundamental rights.

High Courts

High courts were established in 1862 in Calcutta, Bombay and Madras.

As of today, there are 24 high courts

there are 24 High Courts at the State level which have jurisdiction over a
state, a union territory or a group of states and union territories. They
are the main civil courts of original civil and criminal jurisdiction in the
state, along with their subordinate District Courts. Nonetheless, in spite
of this, High Courts only exercise this role if the subordinate courts are
incompetent (not authorised by law) to try such matters because of lack
of pecuniary, territorial jurisdiction or in certain matters like if so
designated specifically in a state or Federal law. For example, Company
Law cases are instituted only in a High Court. However, the principal
work of most High Courts entails appeals from lower courts and writ
petitions under Article 226 of the Constitution. Unlike the Supreme
Court, High Courts can only issue writs for enforcement of the rights
provided under Part III of the Indian Constitution.

District Courts

Established by the State governments in India, administer justice for one

or more districts together, depending on the number of cases and
population distribution in the District. This determines the original
jurisdiction of these courts. Also, they have appellate jurisdiction over all
subordinate courts situated in the district on both civil and criminal
matters. One such subordinate court on the civil side is the Junior Civil
Judge Court while one on the criminal side is the Chief Judicial
Magistrate Court. District Courts are under administrative control of the
High Court of the State to which the district concerned belongs.

List of Fundamental Rights

There are six fundamental rights of Indian Constitution along with the
constitutional articles related to them are mentioned below:

1. Right to Equality (Article 14-18)

2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)

1. Right to Equality (Articles 14 – 18)

Right to equality guarantees equal rights for everyone, irrespective of
religion, gender, caste, race or place of birth. It ensures equal
employment opportunities in the government and insures against
discrimination by the State in matters of employment on the basis of
caste, religion, etc. This right also includes the abolition of titles as well
as untouchability.
Aspirants can read more about Right to Equality in the linked article.
2. Right to Freedom (Articles 19 – 22)
Freedom is one of the most important ideals cherished by any democratic
society. The Indian Constitution guarantees freedom to citizens. The
freedom right includes many rights such as:

 Freedom of speech
 Freedom of expression
 Freedom of assembly without arms
 Freedom of association
 Freedom to practise any profession
 Freedom to reside in any part of the country
Read more on the Right to Freedom in the linked article.
Some of these rights are subject to certain conditions of state security,
public morality and decency and friendly relations with foreign countries.
This means that the State has the right to impose reasonable restrictions
on them.
Aspirants can find the details on Right to Life (Article 21), in the linked
article.
3. Right against Exploitation (Articles 23 – 24)
This right implies the prohibition of traffic in human beings, begar, and
other forms of forced labour. It also implies the prohibition of children in
factories, etc. The Constitution prohibits the employment of children
under 14 years in hazardous conditions.
Read more on the Right against Exploitation in the linked article.
4. Right to Freedom of Religion (Articles 25 – 28)
This indicates the secular nature of Indian polity. There is equal respect
given to all religions. There is freedom of conscience, profession, practice
and propagation of religion. The State has no official religion. Every
person has the right to freely practice his or her faith, establish and
maintain religious and charitable institutions.
Read more on the Right to Freedom of Religion in the linked article.
5. Cultural and Educational Rights (Articles 29 – 30)
These rights protect the rights of religious, cultural and linguistic
minorities, by facilitating them to preserve their heritage and culture.
Educational rights are for ensuring education for everyone without any
discrimination.
Read more on Cultural and Educational Rights in the linked article.
6. Right to Constitutional Remedies (32 – 35)
The Constitution guarantees remedies if citizens’ fundamental rights are
violated. The government cannot infringe upon or curb anyone’s rights.
When these rights are violated, the aggrieved party can approach the
courts. Citizens can even go directly to the Supreme Court which can
issue writs for enforcing fundamental rights.
Read more on Right to Constitutional Remedies (Article 32) in the linked
article.
All civil services exam aspirants must go through the features of the
Fundamental Rights discussed further below in this article.

Understanding Article 32 under the Indian Constitution

Article 32 is the right to constitutional remedies enshrined under Part III
of the constitution. Right to constitutional remedies was considered as a
heart and soul of the constitution by Dr. Bhim Rao Ambedkar. Article 32
makes the Supreme court as a protector and guarantor of the
Fundamental rights. Article 32(1) states that if any fundamental rights
guaranteed under Part III of the Constitution is violated by the
government then the person has right to move the Supreme Court for the
enforcement of his fundamental rights. Article 32(2) gives power to the
Supreme court to issue writs, orders or direction. It states that the
Supreme court can issue 5 types of writs habeas corpus, mandamus,
prohibition, quo warranto, and certiorari, for the enforcement of any
fundamental rights given under Part III of the constitution. The Power to
issue writs is the original jurisdiction of the court.

Article 32(3) states that parliament by law can empower any of courts
within the local jurisdiction of India to issue writs, order or directions
guaranteed under Article 32(2). Article 32(4) states that rights given
under Article 32 cannot be suspended except such suspension provided
by the constitution.

Babasaheb Ambedkar called Article 32 as heart and soul of the

constitution?
Article 32 is called the heart and soul of the constitution because it gives
rights to people to move Supreme court directly for enforcement of their
fundamental rights. Article 32 is itself a fundamental right and it makes
article 32 soul of the constitution. According to the Supreme court,
Article 32 is the basic feature of the constitution it cannot be amended
even by way of amendment in the constitution.

The scope of Article 32

The scope of Article 32 is not wide enough as Article 226. Article 32 can
be invoked only to enforce fundamental rights under Part III. one cannot
approach the Supreme court for enforcement for other rights except
fundamental rights. Power to issue writs under Article 32 is mandatory
for the Supreme court because Article 32 is itself a fundamental Right
and Supreme Court is the protector of these the Fundamental Rights.
The writs are strong instruments issued against the government and
government officials.

Understanding Article 226 under the Indian Constitution

Article 226 is enshrined under Part V Chapter V of the Constitution. It
empowers the High Courts to issue certain writs. Article 226 gives
discretionary power to the High courts to issue direction, order, writs
including the writs in nature of habeas corpus, mandamus, prohibition,
quo warranto, and certiorari. Article 226 is invoked not only to for the
fundamental rights but also a violation for other rights.

Article 226(1) states that in spite of Article 32, High court has the power
to issue direction, order, or writs, including the writs in the nature of the
writs in nature of habeas corpus, mandamus, prohibition, quo warranto,
and certiorari to any person, authority, government or public officials for
enforcement of fundamental rights or any other rights under its own
local jurisdiction.

Article 226(2) states that in spite of the seat of government or authority

or residence of the person is not in the local jurisdiction of the High court
still high court can issue direction, order to such government, authority
or person if the cause of action wholly or in part arises in relation to its
own jurisdiction.

Article 226(3) states that the (i)When against a party any interim order
is issued by high court in way of interim injunction or stay, or any
proceedings relating to a petition under Article 226 without (a) giving
copy of the petition or copies of all documents of the interim order to
such party and (b) giving opportunity to hear.

(ii) And if such party makes an application to the High court for the
vacation of such interim order or petition and also furnishes a copy of the
application of vacation to the party in whose favor such interim order or
petition is made, or to the counsel of the party.

(iii) Then High court shall dispose of the application

 within a period of two weeks from the date on which it is received

or,
 from the date on which the copy of such application is so furnished,
whichever date is later
or
  where the High Court is closed on the last day of that period,
before the expiry of the next day afterward on which the High
Court is open
(iv) and if the application is not so disposed of by the High court, the
interim order shall, on the expiry of that period, or, as the case may be,
the expiry of the aid next day, will be vacated

Article 226(4) states that the power given to the high court to issue
direction, order or writ will not derogate the power given to the Supreme
court under Article 32(2)

The scope of Article 226

The scope of Article 226 is much wide than Article 32. Article 226 not
only gives the power to issue direction, order or writs not enforce
fundamental rights but also for the enforcement of other rights too.
Article 226 empowers High court to issue directions, orders or writs to
any person, authority, government, or public officials. Article 226 also
talks about the interim order for writs and also states the mechanism of
how interim order will be disposed of by the High courts.

Writs under Article 32 and Article 226

1. Habeas Corpus – It means to produce the body of or have a body
of. This writ is issued by the court to the person or the authority
who has detained or imprisoned another person to bring that
person before the court So that court can examine the reason and
validity of his detention. If no valid justification or reason for his
detention is found by the court then the court will release him from
that detention. Writ of Habeas corpus can be issued to both public
and private persons. It can be filed by anybody on the behalf of the
detainee.
2. Mandamus – Mandamus literally means “We Command”. In this,
court order the public authorities directing them to perform their
duty imposed by the law. The writ of mandamus can be issued to
the government, govt officials, public corporations, inferior courts
or tribunals, etc. It cannot be imposed on private persons. It is
issued when public authority refused to perform an obligation
under law but it cannot be issued where duty is discretionary.
3. Quo Warranto – It is means “what is your Authority”. This writ is
issued by the court to the person holding the public office
questioning him under What authority he is holding the public
office. If he fails to prove his authority than the court will issue
order refraining him to hold that office and court also mah declare
office vacate.
4. Certiorari – The writ of Certiorari means “to be certified”. This
writ is issued to the inferior court or tribunals directing them to
transmit the matter to the court of record proceedings pending
before them. This writ gives power to Supreme court or High court
 to determine the validity or legality of matter disposed of by the
lower courts or tribunals
5. Prohibition – Th writ of the Prohibition is issued to the lower
courts or tribunals when:
(i) They act contravene to rule of natural justice

(ii) They Act without jurisdiction or excess to their jurisdiction

(iii) They act ultra vires i.e. beyond the powers

(iv) They act in contravention of Fundamental Rights.

How Article 32 is different from the Article 226

1. Article 32 gives power to Supreme Court whereas Article 226 gives
power to the High court
2. Article 32 is invoked for the enforcement of fundamental Rights
whereas Article 226 is invoked for enforcement of fundamental
right as well as other legal rights too.
3. The power to High court under Article 226 is wide than the power
of the Supreme court under Article 32
4. Power to issue writs under Article 32 is mandatory for the Supreme
court whereas High court has discretionary power to issue writs
under Article 226
5. Article 32 is suspended during the period of the emergency
whereas Article 226 cannot be suspended during emergency
6. Territorial Jurisdiction of the High court under Article 226 is
narrower than the Territorial jurisdiction of Supreme court under
Article 226.
7. The order passed by the Supreme court under Article 32 will
always supersede the order passed by the High courts under
Article 226.
8. Article 32 is itself a fundamental right (Right to constitutional
Remedies) whereas Article 226 is not a fundamental Right.
What are the similarities between Article 32 and Article 226?
1. Both Article 32 and 226 is invoked for the enforcement of
Fundamental Rights
2. Both the Supreme court and High court has the power to issue
writs under Article 32 and Article 226 respectively.
The scope of Article 226 is wider than Article 32 but still, Article
32 is called the heart and soul of the Constitution? Why?
It is because : (i) Article 32 is itself a fundamental Right

(ii) Supreme court is guarantor and defender of the Fundamental Rights

and Constitution.

Does member of any Armed forces can approach the Supreme

court or High court for enforcement of Fundamental Rights?
 No, According to Article 33 of the constitution, member of armed forces
cannot approach the Supreme Court or High court under Article 32 and
Article 226 respectively. Article 33 empowers the parliament to restrict
the fundamental Rights of the members of Armed and

Parliamentary forces. The idea behind inserting this provision is to oblige

them to perform their duties and make discipline among them.

What is the doctrine of Compensatory Jurisprudence?

The doctrine of Compensatory Jurisprudence means compensating the
victim for his loss or injury suffered. This doctrine was identified by the
various Law commissions reports and many judgments of the court. This
doctrine was prevalent in tort, criminal law, and Civil Law.

Does the Supreme Court have the power to grant compensation

for violation of fundamental Rights under Article 32?
Yes, Scope of the Supreme court is wide under Article 32 to grant
compensation to the victim for violation of his fundamental Rights 1 In the
case of the Rudul Shah vs. the State of Bihar 2, Supreme court Court
invented new doctrine called compensatory jurisprudence under Article
32. The court directed the State of Bihar to give compensation for
illegally detaining the victim for the 14 years on a wrongful charge of the
Murder.
Conclusion
Article 32 is a fundamental right which empowers the Supreme court to
issue direction, order, and writs. Article 226 is the constitutional right
which empowers High court to issue a direction, order, and writs for
enforcement of fundamental rights and other legal rights. The writs in
form of Habeas Corpus, Mandamus, Quo Warranto. Prohibition,
Certiorari can be issued under Article 32 and Article 226. It is concluded
that the scope of Article 226 is wide than the Article 32. Unlike 32,
Article 226 cannot be suspended during the period of the emergency.

Here are some 7 important difference between Article 32 and

Article 226
Sr
Article 32 Article 226
No

It is for enforcement of It is for enforcement of Fundamental Rights as

1.
Fundamental Rights only as other legal Rights

Power of Supreme court to

2 Power of High courts to issue writs
issue writs

Mandatory power to issue

3 Discretionary power to issue writs
the writ is Mandatory
4 Scope is narrow Scope is Wide

5 It is fundamental Right It is not a Fundamental Right

Article 32 is suspended
6 during the period of It cannot be suspended during emergency
Emergency

Territorial Jurisdiction is Territorial Jurisdiction is narrower than the Supr

7
wide Court.

endability of Fundamental Rights

Any changes to the fundamental rights require a constitutional
amendment that should be passed by both the Houses of Parliament. The
amendment bill should be passed by a special majority of Parliament.
Read about types of majorities in Indian Parliament in the linked article.
As per the Constitution, Article 13(2) states that no laws can be
made that take away fundamental rights.
The question is whether a constitutional amendment act can be termed
law or not.
In the Sajjan Singh case of 1965, the Supreme Court held that the
Parliament can amend any part of the Constitution including fundamental
rights.
But in 1967, the SC reversed its stance taken earlier when in the verdict
of the Golaknath case, it said that the fundamental rights cannot be
amended.
In 1973, a landmark judgement ensued in the Kesavananda Bharati
case, where the SC held that although no part of the Constitution,
including Fundamental Rights, was beyond the Parliament’s amending
power, the “basic structure of the Constitution could not be abrogated
even by a constitutional amendment.”
This is the basis in Indian law in which the judiciary can strike down any
amendment passed by Parliament that is in conflict with the basic
structure of the Constitution.
In 1981, the Supreme Court reiterated the Basic Structure doctrine.
It also drew a line of demarcation as April 24th, 1973 i.e., the date of the
Kesavananda Bharati judgement, and held that it should not be applied
retrospectively to reopen the validity of any amendment to the
Constitution which took place prior to that date.
Aspirants can learn more about 25 important SC judgements for UPSC in
the linked article.
Doctrine of Severability
This is a doctrine that protects the fundamental rights enshrined in
the Constitution.
It is also known as the Doctrine of Separability.
It is mentioned in Article 13, according to which all laws that were
enforced in India before the commencement of the Constitution,
inconsistent with the provisions of fundamental rights shall to the
extent of that inconsistency be void.
This implies that only the parts of the statute that is inconsistent shall be
deemed void and not the whole statue. Only those provisions which are
inconsistent with fundamental rights shall be void.

Doctrine of Eclipse
This doctrine states that any law that violates fundamental rights is not
null or void ab initio, but is only non-enforceable, i.e., it is not dead but
inactive.
This implies that whenever that fundamental right (which was violated by
the law) is struck down, the law becomes active again (is revived).
Another point to note is that the doctrine of eclipse applies only to pre-
constitutional laws (laws that were enacted before the Constitution came
into force) and not to post-constitutional laws.
This means that any post-constitutional law which is violative of a
fundamental right is void ab initio.

Sources of Law

Indian Legal System has been compared with 'Triveni’ meaning

confluence of 3 rivers. Thus, there are 3 streams which make the Indian
Legal. The first one is that of Common Law, the second one is that of
Civil Law and the third one consists of the Personal and Customary Laws.
Let us examine each one of them in some detail.

Common Law

It is generally assumed that India is a Common Law Country. In many

countries of the world where colonisation by England took place;
common law is found to be dominant even after decolonisation. English
people took with them to their colonies the legal system which has come
to be known as Common Law system. Common Law simply speaking is
Judge made Law or Case-law

Principle of Stare decisis in Common Law System

It is a doctrine that when court has once laid down a principle of law as
applicable to a certain state of fact it will adhere to that principle, and
apply it to all future cases where facts are substantially the same,
regardless of whether the parties and property are the same. Under the
doctrine, deliberate or solemn decision of court made after argument; a
question of Law fairly arisen in the case, and necessary to its
determination, is an authority, or binding precedent in the same court, or
any other courts of equal or lower rank in subsequent cases where the
very point is again in controversy.

Crux - The Judges develop a set of law which is termed as Common

law

In India, 'the English courts started the development of common law.

After independence, the same was continued under our Constitution by
and 227 of our constitution by virtue of Article 372. Moreover, Articles 32
and 226 give a power of judicial review i.e. our judiciary is empowered to
strike down any legislation if it is found to be violative of the fundamental
rights of citizens. Thus the courts are given wide powers to do justice.
We in India have a unitary and not duel judicial system in the sense that
the questions of Central law and state law are not decided by different
courts

Civil Law

Law needs to be certain, precise and predictable. Civil Law or Codified

Law or Black Letter Law is looked at to fulfil this requirement of
certainty. The idea of Civil codes is derived from the Codes of continental
Europe, where the Judges decide each case on its merits by applying the
law as enacted into the Codes and not in conformity with the system of
stares decisis.

Some of the common law in India is codified. Codification of Indian Laws

started ' during British regime. For this purpose, Law Commissions were
appointed by the British Government. The Second Law Commission gave
final shape to Macaulay's Penal Code. It also prepared drafts of the Code
of Civil Procedure and the Code of Criminal procedure, incorporating
into them materials left by the first law commission. Later on these
Codes were enacted by the legislative 1 councils as Laws of India and
again due to Article 372 of constitution of India.

The Indian Penal Code, the Code of Criminal Procedure, Indian Evidence
Act, the Civil Procedure Code, the Transfer of Properties Act. The Indian
Contract Act are some of the classic pieces of codified Law in India.

The Constitution of India in Articles 245 to 255 distributes the

legislating powers of the Central Government and the State
Governments. Accordingly, in the Vllth Schedule to the Constitution, list I
is the Union list, List-II is the State List and list-III is the Concurrent list.

Codification of the Law

In dictionary meaning code is a systematic collection of statutes, the

body of law, so arranged as to avoid inconsistency and overlapping.
The term codification denotes the creation of codes, which are compilatio
ns of written statutes, rules, and regulations that
inform the public of acceptable and unacceptable behavior.

Personal and Customary Law

The oldest part of the Indian Legal system is the Personal Laws
governing Hindus and Muslims. They are based on the religious treatises
of their respective religions. the customary Laws of various tribal
communities and other ethnic groups also form part of the Law
administered in India

Indian Legal System – Reference

https://uk.practicallaw.thomsonreuters.com/w-017-5278?
transitionType=Default&contextData=(sc.Default)&firstPage=true