Law of IndiaModule 1
Foundations of the Indian legal system: history, sources, the Constitution, the hierarchy of norms, the rule of law and the basic structure
Indian law is a **mixed system**. Its legal method, its courts and its great codes come from the **common law** that the British brought; its personal laws still reflect the **religious and customary traditions** of its communities; and above all stands the **Constitution of 1950**, one of the longest in the world, which both limits every government and tries to change society. This module draws the map: where Indian law came from, where it comes from today, how its norms are ranked, what the rule of law requires, and why the courts say that some parts of the Constitution cannot be amended even by Parliament.
This course explains the law of India, not US law. Rules that look the same elsewhere may be different.
By the end of this module you can
- Trace the path from ancient and Islamic traditions through British codification to the Constitution.
- Name the sources of Indian law and the binding force of precedent.
- Rank the hierarchy of norms, including Article 13 and treaties.
- Explain the rule of law and constitutionalism in India.
- Describe the basic structure doctrine.
Part 1. The lecture
From dharma to the Constitution
Ancient and medieval law. Early Indian legal thought is found in the *dharmashastras* and *smritis* (such as the texts attributed to Manu), which set out duties, procedure and punishment, and in local custom, which was the working law of most communities. Law was religious and communal rather than territorial: a person was judged by the rules of his community. From the twelfth century, Islamic law was applied by the Sultans and the Mughals, above all in criminal law and in the personal law of Muslims, while Hindus continued to follow their own texts and customs.
British rule. The East India Company first set up courts in its trading towns (the Regulating Act of 1773 created a Supreme Court at Calcutta), and the Crown took over direct rule after 1857. The British applied personal law to Hindus and Muslims in family matters, but built a territorial hierarchy of courts and began to codify the rest of the law. Macaulay’s First Law Commission (1834) led to the Indian Penal Code of 1860, followed by the Codes of Civil and Criminal Procedure, the Indian Contract Act of 1872 and the Indian Evidence Act of 1872. The Government of India Acts of 1919 and 1935 introduced elected assemblies and a federal scheme, and the Federal Court of 1937 was the first national court. English judges and Privy Council decisions made precedent a source of law.
| Date | Event | Why it matters |
|---|---|---|
| 1773 – 1861 | Regulating Act, Supreme Courts, High Courts Act 1861 | A hierarchy of courts in the common law style |
| 1860 – 1882 | The Penal Code, procedure codes, the Contract Act, the Evidence Act, the Transfer of Property Act | The core codes, many in force for over a century and a half |
| 1935 | Government of India Act | Much of the structure of the Constitution (federal lists, the Federal Court) was drawn from it |
| 26 Nov 1949 / 26 Jan 1950 | The Constitution adopted by the Constituent Assembly, and in force | A sovereign republic; the Drafting Committee was chaired by Dr B.R. Ambedkar |
| Article 372 | Existing law continues unless it conflicts with the Constitution | The colonial codes carried on and were amended, not replaced, until recent reforms (Module 7) |
The Constitution of 1950 declares India a sovereign, socialist, secular, democratic republic (the words ‘socialist’ and ‘secular’ were added in 1976), guarantees fundamental rights, and sets up a federal structure with a strong centre, a parliamentary system and an independent judiciary. It has been amended more than a hundred times, under the process in Article 368.
Sources of law and the hierarchy of norms
| Source | What it is | Notes |
|---|---|---|
| The Constitution | The supreme law | Binds Parliament, the State legislatures, the executive and the courts |
| Legislation | Acts of Parliament and of the State legislatures | Which body may legislate depends on the three lists of the Seventh Schedule (Module 2) |
| Delegated legislation | Rules, regulations and orders made under an Act | Valid only within the power the parent Act gives; courts strike down excessive delegation |
| Precedent | Decisions of the courts | Article 141: the law declared by the Supreme Court is binding on all courts in India. High Court decisions bind the courts below them in that State |
| Custom and personal law | Customary practices; the law of religious communities in family and succession | Custom must be ancient, certain, reasonable and not against statute; personal laws are applied in marriage, divorce and inheritance (Module 5) |
| Doctrine | Commentaries and Law Commission reports | Persuasive; the Law Commission of India proposes reform |
The hierarchy. At the top is the Constitution. Article 13 says that any law that is inconsistent with the fundamental rights is void to that extent; ‘law’ includes statutes, ordinances, rules and customs. Next come Acts of Parliament and the State legislatures, within their fields, then delegated legislation. The courts, through judicial review, declare laws void if they violate the Constitution or exceed legislative power. India has a single, integrated hierarchy of courts (Module 3), so a Supreme Court decision binds the whole country.
Treaties and international law. India is a dualist country in practice. A treaty signed by the Union does not by itself become law for people and courts; Parliament must legislate, and Article 253 gives it the power to do so even on subjects in the State List, in order to implement a treaty. Article 51(c) is a directive principle that the State should respect international law and treaty obligations. The Supreme Court has used international norms to fill gaps where Indian law is silent: in *Vishaka v State of Rajasthan* (1997) it laid down guidelines on sexual harassment at work, relying on the international convention on discrimination against women, until Parliament passed a statute in 2013. Customary international law is part of Indian law if it does not conflict with a statute.
The rule of law and the basic structure
The rule of law in India rests on Article 14, equality before the law and the equal protection of the laws, and on the whole system of judicial review. It means that no one is above the law, that state action must have a legal basis, and that it must not be arbitrary: in *E.P. Royappa v State of Tamil Nadu* (1974) the Court held that arbitrariness is the opposite of equality, and in *Maneka Gandhi v Union of India* (1978) that any procedure that deprives a person of liberty must be just, fair and reasonable. In *A.D.M. Jabalpur v Shivkant Shukla* (1976) the Court held during the Emergency that the right to life could be suspended; that decision is now regarded as wrong and was formally rejected in *Puttaswamy* (2017).
The basic structure doctrine. Article 368 lets Parliament amend the Constitution by special majorities. Can it amend anything? In *Kesavananda Bharati v State of Kerala* (1973), a bench of thirteen judges held, by a narrow majority, that Parliament may amend any provision, including fundamental rights, but may not alter the ‘basic structure’ or framework of the Constitution. The Court has treated as part of that structure, among other things, the supremacy of the Constitution, the republican and democratic form of government, secularism, the separation of powers, federalism, judicial review, the rule of law and free and fair elections. The doctrine was confirmed in *Indira Gandhi v Raj Narain* (1975) and *Minerva Mills v Union of India* (1980), and it was used to strike down the National Judicial Appointments Commission in 2015 (Module 3).
| Question | Answer |
|---|---|
| Can Parliament amend fundamental rights? | Yes, by the Article 368 procedure, but not so as to destroy the basic structure |
| Who decides what the basic structure is? | The courts, case by case, which is why critics say it gives judges the final word on the Constitution |
| Can a constitutional amendment be reviewed? | Yes. Laws placed in the Ninth Schedule are also open to review if they violate the basic structure (*I.R. Coelho*, 2007) |
| Is the doctrine written in the Constitution? | No. It is a judicial doctrine, developed from the text and the Preamble |
Worked example (invented)
A State passes an Act that stops the High Court from hearing any challenge to the State’s land orders. A landowner challenges the Act.
Which source ranks highest? The Constitution, which gives High Courts power of judicial review (Article 226).
Which rule applies? Judicial review is part of the basic structure, so even an amendment could not take it away, and an ordinary State Act cannot.
Result: The provision that bars the High Court is likely to be struck down, and the land orders can be challenged.
Part 2. Lab: Which Source?
Sort each item by the source of Indian law it belongs to.
Situation 1 of 6
Article 13: a law that violates a fundamental right is void to that extent
Where does this belong?
Part 3. Lab: Which Norm Prevails?
Choose the best answer in each situation.
Situation 1 of 3
An Act of Parliament conflicts with a fundamental right in Part III of the Constitution.
What is the result?
Part 4. Lab: Spot the Mistake
Click the statements that misstate Indian law.
A trainee’s notes
Click every sentence that causes a problem, then press Check. There may be 3 problems, and some sentences are fine.
Part 5. Check your understanding
Ten questions drawn from a larger pool. Sign in to have your score saved towards your certificate.
You have finished the free module
Here is what you can do now, and where the course goes next
Module 1 gave you
- Trace the path from ancient and Islamic traditions through British codification to the Constitution.
- Name the sources of Indian law and the binding force of precedent.
- Rank the hierarchy of norms, including Article 13 and treaties.
- Explain the rule of law and constitutionalism in India.
- Describe the basic structure doctrine.
Next, 6 more modules and a capstone
- Module 2: Constitutional government and federal institutions: federalism, Parliament, lawmaking, the President, the Prime Minister, the States, constitutional bodies, local government and emergenciesYou will learn to explain the division of powers under the three lists and the rule on repugnancy.
- Module 3: Courts, judges and the legal profession: the integrated hierarchy, the Supreme Court, High Courts, subordinate courts, judicial independence, public interest litigation, advocates and legal educationYou will learn to describe the integrated hierarchy and the jurisdictions of the Supreme Court and the High Courts.
- Module 4: Fundamental rights and public law: equality, liberty, directive principles, reservation, religion, minorities, administrative law, anti-corruption and the environmentYou will learn to explain who is bound by the fundamental rights (Article 12) and the tests for equality and for the freedoms of Article 19.
- Module 5: Private law, civil liability and procedure: contract, remedies, tort, property, land, family and personal laws, succession, civil procedure, arbitration, mediation and the protection of childrenYou will learn to apply the essentials of a valid contract and tell void, voidable and valid agreements apart.
- Module 6: Business, commerce and regulatory law: commercial transactions, companies, insolvency, consumers, competition, intellectual property and employment
- Module 7: Criminal law and the administration of justice: the three new codes, offences and defences, investigation and arrest, trial, evidence, sentencing, appeals and cooperation
- Capstone: Capstone: Meera Iyer and the handloom business
Each module has its own practice labs and a graded quiz, and a Certificate of Completion follows when you pass them all. The whole course is $15 once, or included in a Courses & AI Lab Pass.
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General education on Indian law, using invented people and businesses. It states constitutional provisions, statutes and landmark decisions in simplified form, and it is not legal advice. The law changes and every case turns on its facts. Consult an advocate enrolled in India for any real matter.
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