Sources of law in India.
Laws are the primary framework on which any function is carried out. Other synonyms for the word law can be rules, regulations, orders, ordinances etc. as per article 13 of the Indian Constitution. The basic meaning of a law is that it is a guideline or a set of boundaries set that differentiate legal acts from illegal ones.
The Indian legal system works off of various laws. These laws help in administration, execution and maintenance of peace, justice and order in the society. Since these laws are of such paramount importance, it begs the question as to from where and how these laws been derived. There are various sources from where the principles of such laws are derived.
Some sources of laws are:
- The Legislature: The Parliament of India as well as the State legislative assemblies serve as the most supreme form of law making authorities. These authorities come up with new laws as and when the need arrives. Furthermore, they have the power to make amendments to all legislations as per the dynamic needs of the society. Hence, they serve as a primary source of law in the country.
- The Constitution: Although the constitution was made by the constituent assembly and the draft committee which was a part of the parliament, the constitution has a special status as being the apex law of the land. All other laws are to be made in accordance with the principles enshrined in the Constitution of India. This document serves as a framework that contains various articles in itself that serve as the law of the land.
- The Executive: The executive branch has the power to make laws as well. While their powers do not range as far as that of the legislature, they have the power to release order, ordinances and other required restrictions whenever it is needed. The Executive includes the Governments, the President, Governors, Police departments and other authorities. These executives can make such rules based on already implemented and established law. For example, Sec 144 of CrPC (The Code of Criminal Procedure, 1974) can be issued by the government in consultation with the district magistrate. Similarly, other restrictions can be put based on provisions of the Disaster Management Act, 2005.
- The Judiciary: Unlike the Civil law system, the Common law system allows for judge made laws to be implemented. While these laws will not have the status of laws passed by the Parliament of the Governments, judge made laws have substantial powers in terms of functioning when it comes to the court system. Over the years, various doctrines, procedures and guidelines have been set by the Judiciary in order to make other laws more accessible and comprehendable. The basic structure doctrine and various comprehensions of equality under article 14 of the Constitution are important examples of this type of law. These doctrines and guidelines themselves act as precedent which is further considered and followed (if not overruled) and hence act as a form of law.
- International treaties, conventions and conferences: International treaties play a vital role in the law making schema of any nation. For example, the United Nations is a historically important organisation aimed at promoting peace, good governance and good relations between nations. The Universal Declaration of Human Rights (UDHR) and the International Covenant for Civil and Political Rights (ICCPR) are important resolutions passed and ratified by India. Since India ratified to these conventions, it has to make appropriate laws in the country that can bring out the same effect that these documents intended to bring out.
- Natural law and justice: The basic concepts of morality, humanitarianism and other basic instincts that are deemed important for the equitable survival of man were not codified beforehand. These principles evolved over civilisations and followed the natural flow of justice, hence called natural law. Natural Law is eternal and unalterable, as having existed from the commencement of the world, uncreated and immutable. Natural Law is not made by man; it is only discovered by him.
- Religious scriptures and rituals: In India, personal laws are more or less defined from religious scriptures and other customs that have been followed for a long time in society. There is no uniform code for all in matter such as marriage, succession and inheritance. These different aspects are covered under different laws that were made with a particular religion and its principles as the base. Examples of such laws are Muslim Personal Law (Shariat) Application Act, 1937 and the Hindu Succession Act (1956). Personal laws can also include rituals such as the ritual of cremation in the river Ganga for Hindus or the necessary practice of prayer five times a day in Islam.
Hence, these are the various sources of law from where law and order is maintained in the society. While most aim at the betterment, some can cause the opposite effect if they are not amended from time to time based on the changing situations in the country.
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