Hard Concepts in Law · India
The hardest concepts in Indian law
20 ideas, 11 areas of law, one picture for each.
These are the ideas that students find hard, across 11 areas of law. Each one has its own page with an everyday picture of how the rule is built, the usual mistakes, a worked example and a trap question.
Step 1Constitutional law
The basic structure doctrine
The load-bearing wall
Parliament may amend the Indian Constitution under Article 368, but it may not amend away its basic structure, and the Supreme Court decides what that structure contains. The doctrine limits constitutional amendments, not ordinary laws.
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Step 2Constitutional law
Equality and arbitrariness under Article 14
The sorting table
Article 14 forbids the State from denying any person equality before the law or the equal protection of the laws, and it allows a law to treat groups differently only if the classification is reasonable. Since the 1970s the Supreme Court has also held that arbitrary State action offends Article 14, even where no group is singled out.
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Step 3Constitutional law
The golden triangle of Articles 14, 19 and 21
The three-lock door
A law that takes away personal liberty under Article 21 must follow a procedure that is fair, just and reasonable, and it must also pass the tests of Articles 14 and 19 where they apply. Maneka Gandhi turned Article 21 from a guarantee of any procedure laid down by law into a guarantee of a fair one.
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Step 4Constitutional law
Pith and substance and the three lists
The postal sorting of subjects
The Seventh Schedule divides legislative power between Parliament and the States in three lists, and where a law seems to touch more than one list the courts look at its true nature, its pith and substance. If a Central and a State law on a concurrent subject conflict, Article 254 makes the Central law prevail, with a limited exception for a State law that has received the President’s assent.
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Step 5Constitutional law
Eclipse, severability and Article 13
The cloud over the sun
Article 13 makes a law void to the extent that it conflicts with a fundamental right, and the courts then ask whether the whole law falls or only the offending part. A law made before the Constitution is eclipsed, not dead, so it revives if the conflict is removed, whereas a law made after is void from the start.
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Step 6Constitutional law
Reasonable restrictions on free speech
The fenced paddock
Article 19(1)(a) guarantees citizens freedom of speech and expression, and Article 19(2) lets the State restrict it only on the grounds listed there and only by a reasonable law. A restriction on any other ground is invalid, however sensible it seems.
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Step 7Constitutional law
Public interest litigation and standing
The fire bell
In public interest litigation a person or group may go to the Supreme Court or a High Court on behalf of people who cannot easily come themselves, because the Court has relaxed the old rule that only the person injured may sue. The Court still insists that the petitioner act in good faith and for a public cause, not for private gain or publicity.
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Step 8Administrative and constitutional law
Writs under Articles 32 and 226
The toolbox on the wall
Article 32 lets a person go straight to the Supreme Court to enforce a fundamental right, and Article 226 lets a High Court issue writs for fundamental rights and for any other legal right. The five writs are habeas corpus, mandamus, prohibition, certiorari and quo warranto, and each has its own use.
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Step 9Administrative law
Natural justice and legitimate expectation
The umpire’s bench
Natural justice requires that a person be heard before an adverse decision and that the decision-maker be free from bias, and in India it applies to administrative as well as judicial decisions. A legitimate expectation, created by a promise or a settled practice, can give a person a right to a fair process before it is disappointed, though not a right to the outcome.
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Step 10Constitutional law
Essential religious practices under Articles 25 and 26
The fruit and its rind
Article 25 protects every person’s freedom of conscience and the right to profess, practise and propagate religion, and Article 26 lets religious denominations manage their own affairs in matters of religion, both subject to public order, morality and health. The Supreme Court protects what is essential to a religion, and the State may regulate secular activities connected with it and provide for social reform.
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Step 11Contract law
Free consent, coercion and undue influence
The guided pen
Under the Indian Contract Act a contract made without free consent is voidable at the option of the party whose consent was not free, and consent is not free if it is caused by coercion, undue influence, fraud, misrepresentation or mistake. Undue influence arises where one party is in a position to dominate the will of the other and uses it to gain an unfair advantage.
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Step 12Contract law
Damages and penalty under section 74
The parking fine
Section 73 of the Contract Act gives compensation for loss that naturally arises from a breach or that the parties knew was likely, while section 74 lets a party who sues on a clause fixing a sum payable on breach recover only reasonable compensation, not exceeding that sum. Indian law therefore does not enforce penalties as written, and the court asks what is reasonable.
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Step 13Contract and administrative law
Promissory estoppel against the State
The road sign
If the Government makes a clear promise that is meant to be acted on, and a person acts on it and changes their position, the Government cannot go back on the promise even without consideration. The promise yields only to a clear and overriding public interest, and it cannot make the Government do what the law forbids.
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Step 14Civil procedure
Res judicata and constructive res judicata
The stamped receipt
Under section 11 of the Code of Civil Procedure a court may not try a suit or issue that was directly and substantially in issue in an earlier suit between the same parties and was finally decided by a competent court. The rule also covers a point that might and ought to have been raised in the earlier suit, which is called constructive res judicata.
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Step 15Property law
Part performance and lis pendens
The shield and the sword
Section 53A of the Transfer of Property Act protects a buyer who has taken possession under a signed written contract and performed their side, by stopping the seller from enforcing any right against them, even though the transfer was never properly completed. Section 52 makes anyone who buys property while a suit about it is pending subject to the outcome of that suit.
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Step 16Tort law
Absolute liability for hazardous industry
The keeper of the tiger
In India an enterprise that carries on a hazardous or inherently dangerous activity must compensate everyone harmed by an escape of the danger, without proof of negligence and without the exceptions allowed by the English rule in Rylands v Fletcher. The Supreme Court laid this down in M C Mehta, so that the cost of the harm falls on the enterprise and not on the victims.
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Step 17Constitutional law and tort law
Compensation for constitutional wrongs
The second counter
When the State violates a fundamental right, such as by unlawful detention or custodial death, the Supreme Court and the High Courts can order it to pay compensation in a writ petition, as a remedy in public law. This is separate from the victim’s right to sue in tort, and the State cannot answer it by pleading sovereign immunity.
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Step 18Criminal law
The rarest of the rare doctrine
The fine sieve
In Indian law a sentence of death may be imposed for murder only in the rarest of rare cases, where the alternative of life imprisonment is unquestionably foreclosed, and the court must give special reasons. Life imprisonment is the rule and death the exception, and the court weighs the circumstances of the crime and of the offender before choosing.
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Step 19Criminal law and evidence
Circumstantial evidence and the five golden principles
The chain of links
A court may convict on circumstantial evidence alone only if the circumstances are fully established and form a complete chain that points to the guilt of the accused and to no one else. The Supreme Court summarised the test in Sharad Birdhichand Sarda as five principles, often called the panchsheel.
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Step 20Criminal law
Common intention and common object
The rowing crew
Where several persons commit a crime together, each can be liable for the whole if they shared a common intention, which needs a prearranged or on-the-spot plan and some participation, or if they were members of an unlawful assembly sharing a common object. The two rules are formerly sections 34 and 149 of the Indian Penal Code, and the new criminal code carries them forward under new numbers.
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Read this first
India has a written Constitution, central and State legislation, and a unified court system under the Supreme Court. Each page states the usual formulation of the rule and names landmark decisions, with the citations as they are usually given in the Supreme Court Cases and All India Reporter series. The criminal codes and the law of evidence were replaced by new statutes, so the pages on criminal law state the doctrine and the decisions and mostly leave out section numbers; check the current text of any statute you rely on. Personal laws differ by community. This is a study aid, not legal advice, and an Indian advocate should check anything you need to rely on.
These pages are educational overviews. They are not legal advice and not a substitute for the primary sources.