In this article, Parthapratim Das pursuing M.A, in Business Law from NUJS, Kolkata discusses ten most important law subjects taught in law schools.
There are so many laws in India which passed during pre and post-independence period that are in vogue at present. Most of the Indian Laws are constituted and passed during the pre and post independence period and they are still very effective and Active and are in use in the modern legal system of India. Indian legal system is structurally a hybrid system of civil law, common law and customary law. Those laws are made keeping in mind the British colonial regime and influenced by that era and such the Indian legal framework is basically inherited from the British ruler and they are still continued and functional in some modified versions or same as it was. Indian legal system has a great adherence to the Guidelines of United Nations and as a result, various laws are adopted from the guidelines of the international platforms especially in the domain of Human rights law, Environmental law, International trade laws and intellectual property law etc.
The Constitution of India
The 26th January 1950 is a red letter day in the long history of India because the Constitution of India came into effect. The Indian Constitution is the lengthiest and the most detailed of all the written Constitution of the world. The Indian Constitution originally consisted of 395 Articles divided into 22 Parts and 8 Schedules. Since 1951 several Articles and Parts have been added to and several Articles have been omitted from the Constitution. At present, there are, 448 articles in 25 parts, 12 schedules, 5 appendices in the Indian Constitution. As of September 2016, there have been 101(latest by GST Act) amendments made in the Indian Constitution.
The framers of the Indian Constitution have gained experiences from the working of all the known Constitutions of the world like the American Constitution, UK Constitution, Ireland Constitution, German Constitution etc. This was the reason that they sought to incorporate good provisions of those Constitutions in order to avoid defects and loopholes that might come in future in the working of the Indian Constitution. The vastnesses of the country and peculiar problems relating to the language have added to the bulk of the Constitution.
The Indian Constitution lays down the structure not only of the Central Government but also of the States. The American Constitution leaves the States to draw up their own Constitutions.
The Indian Constitution contains a long list of fundamental rights and also a number of directive principles, which confer no justifiable rights upon the individual. Through these directives by their very own nature could not be made legally enforceable yet the framers incorporated them in the Constitution with a view that it would serve as constant reminder to the future Governments that they will have to implement them in order to achieve the ideals of the welfare State as envisaged in the Preamble of the Constitution.
The preamble of the Constitution declares India to be a “Sovereign, Socialist, Secular and Democratic Republic”. Sovereign power is that which is absolute and uncontrolled. The word ‘Sovereign’ emphasizes that India is no more dependent on any outside authority. In a ‘Democratic’ state, it may have an elected or a hereditary head. But it is ‘republic’ because the head of the State is not a hereditary monarch. It envisages not only a democratic form of government but also a democratic society, infused with the spirit of ‘Justice, Liberty, Equality, and Fraternity’. The following are the objectives which the Preamble secures to every citizen: Justice – social, economic and political;
Liberty – of thought, expression, belief, faith and worship;
Equality – of status and opportunity; and to promote among the all;
Fraternity – assuring the dignity of the individual and the unity and integrity of the Nation.
Part III of the Indian Constitution contains a long list of fundamental rights which can be classified under the following six groups:-
- Right to equality (Articles 14-18)
- Right to Freedom (Articles 19-22)
- Right Against Exploitation (Articles 23-24)
- Right to Freedom Of religion (Articles 25-28)
- Cultural and Educational Rights (Articles 29-30)
- Right to Constitutional remedies (Articles 32-35)
The 44th Amendment has abolished the right to property as a fundamental right as guaranteed under Article 19(1)(f) and Article 31 of the Constitution, and hence Article 19(1)(f) and Article 31 have been omitted.
Last week Supreme Court of India upholds Right to Privacy as a Fundamental Right. Recently in a unanimous judgment by all nine Honourable Justices of Supreme Court of India endorsed Privacy as a Fundamental Right to the citizen of India in the case of Retd. Justice K.S. Puttaswamy vs. Union of India. The finding comes against a petition questioning the Constitutional cogency of Aadhaar. The right to privacy is judged under the scanner of Constitutional fundamental right as follows:
“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
Code of Civil Procedure, 1908
Code of Civil Procedure, 1908 (C.P.C.) contains elaborate and exhaustive provisions for dealing with executability of a decree in all its aspects. The numerous rules of Order 21 of the Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. The remedy under C.P.C. is of superior judicial quality than what is generally available under other statutes. It is difficult to find a case where interference in writ jurisdiction for granting to a judgment-debtor or a claimant objector can be justified – Ghanshyamdas vs. Anant Kumar (1991)4 SCC 379.
The preamble of the Code indicates that it is Act to consolidate and amend those laws relating to the procedure of the court of civil judicial. The C.P.C. is a Procedural Law regarding the administration of Indian civil procedure. No doubt it also deals with certain substantive rights. But as the preamble vouchsafes, the object essentially is to consolidate the law relating to Civil Procedure. At the same time this procedure is in a subordinate position and the handmaid of justice and not its mistress – Prem Lata v Chandi Prasad (2007)2 SCC 551. As to the nature of a consolidating statute it is also made clear that the very object of consolidation is to collect the law bearing upon the particular subject in bringing it up to rule. A consolidating Act is to be construed by examining the language of such a statute and by giving it natural meaning uninfluenced by considerations derived from the previous state of law.
The Civil Procedure Code is a law relating to procedure and procedural law is always intended to facilitate the process of achieving ends of justice. The courts normally favour the interpretation which would achieve the object. The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances.
Section 3 of this Procedural Law administers the Subordination of courts for the intention of this Act and described as the High Court is subordinate to the Supreme Court, the District Court is subordinate to the High Court, and every other Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.
Neither ‘suit’ nor ‘proceeding’ has been defined in the Code. They are not used interchangeably.
The Code of Civil Procedure, 1908 was originally aimed to employ to Civil Courts of India. But, it is often enforced in different tribunals and revenue courts.
The Code of Criminal Procedure (CrPC), 1973
The Code of Criminal Procedure (CrPC), 1973, has come into effect from April 1, 1974. It received the assent of the President on January 25, 1974. There was at first no uniform law of criminal procedure for the whole of India. There were separate Acts. mostly rudimentary in their character, to guide the procedure of the Courts. The Code of Criminal Procedure (CrPC), 1973 is an Act to consolidate and amend the law relating to Criminal Procedure.
Ordinarily, the Code does not affect (1) any special law (s.41, Penal Code), (2) any local law (s.42, Penal Code), (3) any special jurisdiction or power, or (4) any special form of procedure (s.5). the Criminal Procedure Code is mainly an adjective law of procedure. Object of a Code of Criminal Procedure is to provide machinery for the punishment of offenders against the substantive criminal law, e.g., the Indian Penal Code. In fact, the two Codes are to be read together. Some terms are specially defined in the Criminal Procedure Code, but in the absence of such definition, the definitions set out in the Indian Penal Code are to be adopted [s.2(y)]. The Code also provides machinery for the punishment of offences under other Acts.
Enactments regulating the procedure of courts seem usually to be imperative and not merely directory. In other words, the rules of procedure are enacted to be obeyed. The object of these rules is to simplify and shorten proceedings. The provisions are procedural, where the violation of any provision does not cause prejudice it has to be treated as directory despite the use of the word ‘shall’. So interpreting s.202 (2) (proviso), the court said examination of all the witnesses cited by the complainant was not mandatory.
Laws of limitation – Limitation Act, 1963
The fundamental principle of the law of limitation is that the rules of limitation are intended to induce claimants to be prompt in claiming relief and unexplained delay or laches – AIR 1966 Raj 213, 218: ILR (1965)15 Raj 543: 1965 Raj LW 201: 1966 Cr LJ 1062.
If any period is to be excluded from the prescribed period of limitation, the party necessarily has to satisfy any of the appropriate provisions of Sections 4 to 24 of the Limitation Act. 1963. (P.K. Kutty Anuja Raja & Anr. v. State of Kerala & Anr. JT 1996(2) S.C. 167)
The law of limitation is an artificial mode of terminate the justiciable disputes and it is construed strictly, always leaning on benefits of the suitor – AIR 1966 Pat 1, 5 (FB): ILR 45 Pat 393: 1966 BLJR 359.
The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence or laches – AIR 1973 SC 2537, 2542: (1973) 2 SCC 705. Statues of limitation are designed to effectuate a beneficent public purpose, viz. to prevent the taking away from one what he has for long been permitted to consider his own and on the faith of which he plans his life, habits and expenses – AIR 1961 SC1704, 1706: (1962)2 SCR 324.
Object of fixing time-limit not meant to destroy rights but founded on public policy fixing a life-span for legal remedy for general welfare – N. Balakrishnan vs. M. Krishnamurthy (1998)7 SCC 123.
The provisions of the statute of limitation cannot be construed in a pedantic manner. It is no doubt true that in terms of section3 of Limitation Act, 1963 as also the provisions of the said Act, a suit must be filed within the prescribed period of limitation. The civil court has no jurisdiction to extend the same.
Limitation Act bars the remedy but not the right. The right remains, but it cannot be enforced by judicial process. The Act does not in terms apply to claims against the State in respect of violation of fundamental rights.
Sale of Goods Act, 1930
Initially, the commercial transactions relating to sale and purchase of goods was governed by section 76 to section 123 of Chapter VII of Indian Contract Act, 1872 till the year 1930. Those sections of the Indian Contract Act, 1872 were repealed in 1930 and a new law had been introduced namely The Indian Sale of Goods Act,1930. The Indian Sale of Goods Act is enacted on 1st July 1930. And further, the word ‘Indian’ was excluded from the name of the Act on 22nd September, 1963. At present the Act is named as ‘The sales of goods act, 1930’.
Indian Sale of Goods Act, 1930 is a Mercantile Law that means it is the body of rules applied to commercial transactions; derived from the practices of traders rather than from jurisprudence. The Sale of Goods Act is to some extent like Indian Contract Act. It is a contract whereby the seller transfers or makes an agreement to transfer the title or ownership of the property in the goods to the buyer against a fixed price and at a given period of time.
This act deals with: Formation of contracts of sale, Goods and their classification, parties, price, time period, Conditions, and warranties, Transfer of property in goods, Performance of the contract of sales, Unpaid seller and his rights. This act does not deal with ‘mortgage’ or ‘pledge’ of goods; those are subjects to the purview of Transfer of Property Act, 1882.
The word ‘sale’ is a nomen juris. It is the name of a consensual contract. The law with regard to chattels is embodied in the Sale of Goods Act. A contract of sale is different from an agreement to sell and unlike other contracts, operates by itself and without delivery to transfer the property in the goods sold. The word ‘sale’ connotes both a contract and a conveyance or transfer of property.
The essential ingredients of the ‘sale’ are agreement to sale movables for a price and property passing therein pursuant to an agreement – Association of Leasing and Financial Service Co. v Union of India (2011)2 SCC 352. A sale may be complete without effecting immediate delivery or immediate payment- AIR 1968 Punj 289.
Partnership Act, 1932
This Act lays down to define, govern and amend the law regarding partnership.
Earlier, ‘Partnership Firm’ was regularized by the provisions of the Indian Contract Act, 1872. S.239 – 266 of Chapter XI of the Indian Contract Act, 1872, which originally regulated Partnership were repealed in 1930 and a new statue, the Indian Partnership Act, 1932, was introduced. This Indian Partnership Act, enacted on the 1st October 1932. A Partnership is a special kind of contract and Partnership Act does not perform comprehensively and completely; the provisions of Indian Contract Act, 1872 also apply to a partnership where there is no definite provision available regarding a matter.
A partnership is a tie-up of two or more persons who have common aims and goals. According to the Section 4 of the ‘Indian Partnership Act, 1932’ ‘partnership’ is “relation between persons who have agreed to share the profit of a business carried on by all or any of them acting for all”. Anyone who entered into a contract and constitutes a partnership firm is called ‘partner’ individually each of them and collectively a ‘firm’ altogether.
A partnership firm is not an independent legal entity. Though the Code of Civil Procedure enables the firm to sue or be sued in its name, really the partners are the actual owners of the assets of the partnership firm.
The concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise this right even to the extent of his share in the business of the partnership. As already stated his right during the subsistence of the partnership is to get his share of profits from time to time as may be agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of the dissolution or retirement after a deduction of liabilities and prior charges – Addanki Narayanappa vs. Bhaskara Krishtappa, AIR 1966 SC 1300.
Dissolution Of Muslim Marriage Act, 1939
“This Act lays down general principles of justice, equity and good conscience” – Satgunj vs. Rahmat, AIR 1946 Sind 48.
The non-judicial conception of Muslim law on divorce is talak, while judicial conception is faskh.
Section 125 of CrPC has conferred right on Muslim wife, including a divorced wife, to obtain maintenance from the husband. But the husband alone enjoys the unilateral right to giving talak. Only on some insignificant situations the wife enjoyed the right by way of Khula or Mubaarat. In other words, in spite of various matrimonial drawbacks of the husband, the wife was forced to continue with such conjugal life. This Act has given some relief to such aggrieved wives.
Spirit of the Act – small misunderstandings or quarrels may be adjusted with passage of time in the matrimonial life. But there may be some situations which the parties cannot reconcile. To avoid further damages in the married life, the dissolution of marriage is left with the only option to come out of the unhappy married life.
The Supreme Court of India on 22nd August, 2017 held instant triple talak unconstitutional as it violates the fundamental rights of Muslim women as it is irrevocable and struck it down by a 3:2 majority of a bench constituting 5 Honourable Justices, led by Chief Justice of India.
Instant triple talak is a Muslim practice which is a verbally announced divorce which is used by the husband to divorce their wives instantly by pronouncing the word “talak” three times at a go.
Hindu Marriage Act, 1955
It is an Act to amend and codify the law relating to marriage among Hindus. So, if a party to such marriage is not a Hindu, the marriage itself would be void notwithstanding the rituals of a Hindu marriage having been followed – Gullipilli Sowria vs. Bandaru Pavani (2009) 1 SCC 714: AIR 2009 SC 1085. This marriage Act contemplates marriage between two both of whom professing Hindu faith. Act applies to all Hindus by religion in any of its forms or developments including Virashaiba, Lingayat, Bramha, Prarthana, Arya Samaj – AIR 1968 AII 412, 414.
Hindus refined the institution of marriage and idealized it. In this process they have laid down detailed rules covering practically all aspects of marriage. While maintaining some continuity with the past, the Hindu Marriage Act has simplified the law of marriage. The Act has also added a chapter on matrimonial causes.
According to the law the custom of a Hindu marriage must be ancient, certain and reasonable. Necessary conditions of a Hindu marriage are invocation before sacred fire and saptapadi (seventh steps). Provisions of this Act do not infringe Article 25 of the Constitution of India – AIR 1957 AII 411; AIR 1961 AII 334. Customary right of divorce is not affected by this Act – AIR 1965 AP 455. Proof of ingredients of marriage as required in a criminal proceeding is not necessary in a civil suit. If marriage, in fact, performed it will be presumed that necessary ceremonies have been duly performed- AIR 1979 Ori 51:46 Cut LT 545: 1979 Mat LR 280; AIR 1974 Ori 107: (1973)2 Cut WR 1108. At the time of marriage the age of the bride should be 18 years and above and the age of the groom should be 21years or above. But marriage of minor bride under the Hindu Marriage Act is not void ipso facto. In the absence of any other valid ground, she cannot be detained in State Home for Girls instead of allowing her to live with her husband – Kokkula Suresh vs. State of Andhra Pradesh, AIR 2009 AP 52; and Makemalla Sailoo vs Supdt. Of Police, Naigonda Dist. 2006(2) ALT 283 (DB). A second marriage by the husband while the first wife is living is null and void – AIR 1964 SC. Similar provision is applied to a wife marrying second time without having a lawfully end of the first marriage. Registration of marriage under section 8 is optional. Registration furnishes proof of marriage. If marriage has not been solemnized according to section 7, registration itself does not make the marriage complete and binding – 86 CWN 1088: (1982) 2 CHN 193.
Hindu Succession Act, 1956
The Hindu Succession Act, 1956, bases its rule of succession on the basic Mitakshara principle of propinquity, i.e., preference of heirs on the basis of proximity of relationship. The Mitakshara limited the effect of the principle by the twin rules of exclusion of females and of agnatic preference. The rule of exclusion of females has been done away with, while the rule of agnatic preference has been considerably modified so far as it concerns the nearer relations. The Dayabhaga principle of religious efficacy has been abrogated. The modern Hindu law of succession is essentially a secular law. Religious or spiritual considerations figure nowhere.
The Hindu Succession Act, 1956 is a socio-economic legislation and it deserves to be interpreted with widest possible connotation. Our Constitution prescribes equality status among equals and abhors gender bias.
The Hindu Succession Act is a prospective law. Under the provisions of the Hindu Widows Remarriage Act, the life estate enjoyed by the widow would come to an end on her remarriage. But under the Hindu Succession Act, such limited estate matured into absolute ownership. The widow’s subsequent marriage would have no reflection on her ownership.
The Hindu Succession Act, 1956 has undergone a lot of change by virtue of the Hindu Succession (Amendment) Act, 2005. The section 6 of the said Act has been totally replaced by a new provision.
This amendment is based on the 17th Report of Law Commission of India on “Property Rights of Women: Proposed Reforms under Hindu Law” in 2000. This Commission recommended for the removal of anomalies and ambiguities with regard to property rights of Hindu women under the Act of 1956. As per the view of the Law Commission of India, the exclusion of daughters from participating in coparcenary property ownership merely by reason of sex was unjust. Therefore, this Amending Act gives full fledged property rights to daughters I ancestral property along with sons.
Sons and daughters both have equal rights to inheritance in their father’s property according to Hindu Succession (Amendment) Act, 2005. But it does not have retrospective effect; it means if a man died before this amendment his daughters do not have equal right to inheritance.
Also the Mitakshara dual mode of devolution of property has also been done away with. According to section 6(3) of the Act of 2005, the interest of a deceased Hindu dying after commencement of the Act of 2005 shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Income Tax Act of 1961
The Indian Constitution has elaborately described about which Authority will collect which type of tax and has allocated the power to impose several taxes between the Centre Government of India and the State Governments. But this power is restricted somehow to the authorities with the provision in Article 265 of the Indian Constitution; according which “No tax shall be levied or collected except by the authority of law.” That means any type of tax can only be imposed and collected through distinct laws for that particular type of tax which must be passed by the Parliament for the centrally imposed and collected taxes or by the State Legislatures for those taxes which are imposed and collected by the State Governments.
In India ‘Income Tax’ is imposed and collected by the Union Government of India with the provisions under one of the direct taxes in India namely the Income Tax Act 1961. State Governments have no power to collect Income Tax from the citizen of India under the provisions of the Constitution of India.
Income Tax Act of 1961 had come into force on the 1st day of April, 1962. This is an Act to consolidate and amend the law relating to income-tax and super-tax. The Income-tax Act, 1961 is the charging Statute of Income Tax in India. It provides for levy, administration, collection and recovery of Income Tax of individuals and corporations.
According to u/s 4 of this Act, Charge of income-tax :
“4. (1) Where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions (including provisions for the levy of additional income-tax) of, this Act in respect of the total income of the previous year of every person :
Provided that where by virtue of any provision of this Act income-tax is to be charged in respect of the income of a period other than the previous year, income-tax shall be charged accordingly”.
This Income-Tax Act, 1961 levies taxes on income from the following:
- House and Property;
- Business and Profession;
- Capital Gains; and
- Other Sources.
According to the report of income tax department of India, in the year 2011-12, among the registered returned files, approximately one lakh people showed ‘zero’ income and 17,515 person declared their salary which range from Rs 1 crore to 5 crores, only 6 persons has come in the highest earning bracket of Rs 50-100 crore of salary income. According to this report only 1% of the total population paid tax for assessment year 2012-13. Five crore population has filed their tax return in the year of 2014-15 which is an increase from four crore tax payers three years back. Maharashtra ranked top among all states and union territories in regards to collection of income tax followed by Delhi.
After demonetization income tax collection has been increased dramatically for the latest year. Budget of the year 2017-18 by Union Government of India has predicted 25.4% yearly increase (which is highest growth in this decade) in income tax collections over income tax collected for 2016-17. Income tax collected for 2016-17 showed 23.3% increase over 2015-16. Though, ITR e-filing data from income tax department shows that number of ITR filings increased from 43.3 million to 52.9 million between FY16 and FY17. This increase is not significantly more than what was achieved between FY15 and FY16.
All of the above laws are enacted during pre and post independence of India and are equally effective and appropriate today. Those laws are playing even more and more important role in the Indian judiciary system and are very much in trend in application with their necessary amendments and modifications.