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UNIT I
Laws, Legal Systems and Change
Constitutional law
Constitutional law refers to rights carved out in the federal and state constitutions. The majority of
this body of law has developed from state and federal supreme court rulings, which interpret their
respective constitutions and ensure that the laws passed by the legislature do not violate
constitutional limits.
CEDAW
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),
adopted in 1979 by the UN General Assembly, is often described as an international bill of rights
for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination
against women and sets up an agenda for national action to end such discrimination.
The Convention defines discrimination against women as "...any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field."
By accepting the Convention, States commit themselves to undertake a series of measures to end
discrimination against women in all forms, including:
• to incorporate the principle of equality of men and women in their legal system, abolish all
discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
• to establish tribunals and other public institutions to ensure the effective protection of
women against discrimination; and
• to ensure elimination of all acts of discrimination against women by persons, organizations
or enterprises.
The Convention provides the basis for realizing equality between women and men through
ensuring women's equal access to, and equal opportunities in, political and public life -- including
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the right to vote and to stand for election -- as well as education, health and employment. States
parties agree to take all appropriate measures, including legislation and temporary special
measures, so that women can enjoy all their human rights and fundamental freedoms.
The Convention is the only human rights treaty which affirms the reproductive rights of women
and targets culture and tradition as influential forces shaping gender roles and family relations. It
affirms women's rights to acquire, change or retain their nationality and the nationality of their
children. States parties also agree to take appropriate measures against all forms of traffic in women
and exploitation of women.
Countries that have ratified or acceded to the Convention are legally bound to put its provisions
into practice. They are also committed to submit national reports, at least every four years, on
measures they have taken to comply with their treaty obligations.
International Human Rights
Refer https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf
Law and types of law
Refer http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/jurisprudence-Unit-I.pdf
Laws and Norms
Norms can be internalized, which would make an individual conform without external rewards or
punishments. There are four types of social norms that can help inform people about behavior that
is considered acceptable: folkways, mores, taboos, and law. Further, social norms can vary across
time, cultures, place, and even sub-group.
Think back to your first experiences in school and surely you can identify some folkways and
mores learned. Folkways are behaviors that are learned and shared by a social group that we often
refer to as “customs” in a group that are not morally significant, but they can be important for
social acceptance. Each group can develop different customs, but there can be customs that
embraced at a larger, societal level.
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Perhaps stricter than folkways are more because they can lead to a violation of what we view as
moral and ethical behavior. Mores are norms of morality, or right and wrong, and if you break one
it is often considered offensive to most people of a culture. [3] Sometimes a more violation can
also be illegal, but other times it can just be offensive. If a more is not written down in legislation,
it cannot get sanctioned by the criminal justice system. Other times it can be both illegal and
morally wrong.
A taboo goes a step farther and is a very negative norm that should not get violated because people
will be upset. Additionally, one may get excluded from the group or society. The nature and the
degree of the taboo are in the mores
Lastly, and most important to the study of crime and criminal justice, our laws. Remember, a social
norm is an obligation to society that can lead to sanctions if one violates them. Therefore, laws are
social norms that have become formally inscribed at the state or federal level and can laws can
result in formal punishment for violations, such as fines, incarceration, or even death. Laws are a
form of social control that outlines rules, habits, and customs a society uses to enforce conformity
to its norms.
Laws and Social Context
In law-and-society theory, the phrase ‘law in context’ points to the many ways legal norms and
institutions are conditioned by culture and social organization. We see how legal rules and
concepts, such as those affecting property, contract, and conceptions of justice, are animated and
transformed by intellectual history; how much the authority and self-confidence of legal
institutions depend on underlying realities of class and power; how legal rules fit into broader
contexts of custom and morality. In short, we see law as in and of society, adapting to its contours,
giving direction to change. We learn that the legal order is far less autonomous, far less
selfregulating and self-sufficient, than often portrayed by its leaders and apologists. This
perspective encourages us to accept blurred boundaries between law and morality, law and
tradition, law and economics, law and politics, law and culture. Accepting the reality of blurred
boundaries leads to much puzzlement and controversy. Law loses some of its special dignity, and
some jurisprudential questions cannot be avoided.
Blurring boundaries is healthy in some ways, pernicious in others:
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pernicious when legal rules and decisions mainly serve the interests of dominant elites; healthy
when legal institutions gain relevance, competence, and vitality from other spheres of social life,
including education, work, religion, and public opinion, especially attitudes of trust, criticism, and
self-restraint.
Indeed, for a well-ordered legal system, nothing is more important than social support. The more
integrated law is with other institutions, and with what people can accept as sensible, the easier it
is to make the system work, and to deliver justice as well as law. When the police or other officials
are isolated from the community, they rely on coercion and on bare assertions of authority. They
become weak and defensive, arbitrary, brutal, and costly.
These reflections suggest that, from a jurisprudential point of view, ‘law in context’ is not an
innocent idea. If we take it seriously, we implicitly accept that ‘positive’ law is continuous with as
well as different from other norms and practices – including patterns of social change – which
bring law into being or affect its character. These law-related and law-generating realities of social
life have been brought home to us in many ways, notably in the legal effects of the Civil War, the
civil rights movement, and labor management conflict. These and other social contexts often
produce ‘incipient’ law by making some changes likely if not inevitable.
Constitutional, Legal & Regulatory Framework
Constitution, laws and regulations codify the formal rules of the game by which a decentralized
system is supposed to function. Structurally, the desirable architecture of these rules is quite
straightforward:
• the constitutions should be used to enshrine the broad principles on which decentralization
is to operate, including the rights and responsibilities of all levels of government; the
description and role of key institutions at central and local levels; and, the basis on which
detailed rules may be established or changed.
• one or more laws should define the specifics parameters of the intergovernmental fiscal
system and the institutional details of the local government structure, including, key
structures, procedures (including elections), accountabilities and remedies; and,
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• a series of regulations associated with each law should interpret and describe in detail the
practices and measures by which the related law will operate. Laws that deal with tasks
that are shared between national and subnational governments should include sections on
intergovernmental relations.
Substantially greater detail and specificity is provided in moving down this three-platform
architecture from the Constitution to Regulations. Conversely, greater difficulty and a higher
degree of authority (e.g., Minister, Parliament and Constitutional Assembly) is required to change
the provisions when moving up from Regulations to the Constitution. Indian Constitution
https://www.icsi.edu/media/webmodules/CONSTITUTION.pdf
India: Constitutional Framework of India
Governance Framework of India
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC, and to secure to all its citizens..."
The Republic of India is governed by the Constitution of India, which was adopted by the
Constituent Assembly on November 26, 1949 and came into force on January 26, 1950. The
Constitution of India seeks to protect the fundamental, political and civil rights of the people. It
also embodies the basic governance structure of the country. The Constitution of India provides
for a Parliamentary form of Government, which is federal in structure with certain unitary features.
Broadly, the governance structure in India can be depicted as follows:
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Transparency, accountability and adherence to the rule of law depends on a systemic arrangement
and coherency between the three arms of the state, viz, the Executive, the Legislature and the
Judiciary. The Constitution of India provides for a system of governance based on the
abovementioned three arms within a federal framework with greater powers in the hands of the
Union Government or Government of India or the Central Government (also referred to as the
"Centre"), which governs the Union of India as a whole.
Legislature
In India, the Parliament is the supreme legislative body. As per Art 79 of the Constitution of India,
the Council of Parliament of the Union consists of the President and two Houses, which are known
as the Council of States (Rajya Sabha) and the House of People (Lok Sabha). The President has
the power to summon either House of the Parliament or to dissolve the Lok Sabha. Each House
has to meet within six months of its previous sitting. A joint sitting of two Houses can be held in
certain cases.
The cardinal functions of the Legislature include overseeing of administration, passing of budget,
ventilation of public grievances and discussing various subjects like development plans,
international relations and national policies. The Parliament is also vested with powers to impeach
the President, remove judges of the Supreme Court and High Courts, the Chief Election
Commissioner, and the Comptroller and Auditor General in accordance with the procedure laid
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down in the Constitution of India. All legislations require the consent of both the Houses of
Parliament. The Parliament is also vested with the power to initiate amendments in the Constitution
of India.
Executive
The President serves as the Executive Head of the State and the Supreme Commander-in-Chief of
the armed forces. Article 74(1) of the Constitution of India provides that there shall be a Council
of Ministers, with the Prime Minister as its head to aid and advise the President.
The President appoints the Prime Minister, Cabinet Ministers, Governors of States and Union
Territories, Judges of the Supreme Court and High Courts, Ambassadors and other diplomatic
representatives. The President is also authorized to issue Ordinances with the force of the Act of
Parliament, when Parliament is not in session.
The President must consult the Council of Ministers and the Prime Minister before taking any
executive decision. It is important to note that the Council of Ministers (usually known as the
"Cabinet" and constituted of the members of the ruling political party/ alliance) and the Prime
Minister (usually the leader of the political party/ consensus candidate of the alliance; also heads
the Cabinet) are members of Parliament and, therefore, by convention, in their hands rest the
legislative and executive powers of the Centre.
The federal units, i.e., the States, have their own set-up in terms of legislatures (normally referred
to as the "State Legislature") and state administrative wings similar to that of the Centre. Here, the
Governor is the head of the Executive, though the real power rests with the Chief Minister and
his/her Council of Ministers. There are certain territories in India that are not States, but are known
as Union Territories and these are governed directly by the Centre.
The Constitution of India prescribes the separation of legislative and administrative powers
between the Union and the States. Areas such as, defense, railways, maritime, interstate trade,
airways, banking, etc., are under the jurisdiction of the Centre (Union List) and areas such as public
order, police, agriculture, etc., fall under the jurisdiction of the States (State list). There is a third
category of list also which is termed as the Concurrent List. It covers areas such as criminal law
and procedure, economic and social planning, trusts, bankruptcy, etc., over which both the Centre
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and the States have legislative and executive powers, though in case of conflict between the two,
the Centre's position prevails.
Judiciary
The Indian Judiciary as of today is a continuation of the British legal system established by the
English in the mid-19th century. Before the arrival of the Europeans in India, it was governed by
laws based on the Arthashastra, dating from 400 BC, and the Manusmriti from 100 AD. These
were the influential treatises in India, texts that were considered authoritative legal guidance,
however, till today the legacy of the British system is manifested from the fact that India falls into
the genre of common law system. The procedure and substantive laws of the country, the structure
and organization of courts, etc., emanate from the common law system.
The Judiciary of India is an independent body and is separate from the Executive and Legislative
organs of the Indian Government. The Judiciary in India provides the people of the nation the
necessary "auxiliary precaution" required to ensure that the Government functions in favor of the
people, for their amelioration and for the betterment of society.
The judicial system of India is divided into four basic levels. At the apex level is the Supreme
Court, situated in New Delhi, which, under the scheme of the Constitution of India is the guardian
and interpreter of the Constitution of India, which is followed by High Courts at the State level,
District Courts at the district level and Lok Adalats at the village and panchayat level. The Supreme
Court and High Courts have the special constitutional responsibility of enforcing the "Fundamental
Rights" of the citizen, as enshrined in Part III of the Constitution.
Below is a schematic representation of the hierarchy of courts in India:
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Supreme Court
The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original
jurisdiction includes any dispute between the Centre and State(s) or between States as well as
matters concerning enforcement of fundamental rights of individuals. The appellate jurisdiction of
the Supreme Court can be invoked by a certificate granted by the High Court concerned in respect
of any judgment, decree, or final order of a High Court, in both civil and criminal cases, involving
substantial questions of law as to the interpretation of the Constitution. Supreme Court decisions
are binding on all Courts/ Tribunals in the country and act as precedence for lower courts. Under
Art 141 of the Constitution, all courts in India are bound to follow the decision of the Supreme
Court as the rule of law.
High Courts
High Courts have jurisdiction over the States in which they are located. There are at present, 23
High Courts in India.1 However, the following three High Courts have jurisdiction over more than
one State: Bombay (Mumbai) High Court, Guwahati High Court, and Punjab and Haryana High
Courts. For instance, the Bombay High Court is located at Mumbai, the capital city of the State of
Maharashtra. However, its jurisdiction covers the States of Maharashtra and Goa, and the Union
Territories of Dadra and Nagar Haveli. Predominantly, High Courts can exercise only writ and
appellate jurisdiction, but a few High Courts have original jurisdiction and can try suits. High Court
decisions are binding on all the lower courts of the State over which it has jurisdiction.
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District Courts
District Courts in India take care of judicial matters at the district level. Headed by a judge, these
courts are administratively and judicially controlled by the High Courts of the respective States to
which the district belongs. The District Courts are subordinate to their respective High Courts. All
appeals in civil matters from the District Courts lie to the High Court of the State. There are many
secondary courts also at this level, which work under the District Courts. There is a court of the
Civil Judge as well as a court of the Chief Judicial Magistrate. While the former takes care of the
civil cases, the latter looks into criminal cases and offences.
Lower Courts
In some States, there are some lower courts (below the District Courts) called Munsif's Courts and
Small Causes Courts. These courts only have original jurisdiction and can try suits up to a small
amount. Thus, Presidency Small Causes Courts cannot entertain a suit in which the amount claimed
exceeds Rs 2,000.2 However, in some States, civil courts have unlimited pecuniary jurisdiction.
Judicial officers in these courts are appointed on the basis of their performance in competitive
examinations held by the various States' Public Service Commissions.
Tribunals
Special courts or Tribunals also exist for the sake of providing effective and speedy justice
(especially in administrative matters) as well as for specialized expertise relating to specific kind
of disputes. These Tribunals have been set up in India to look into various matters of grave concern.
The Tribunals that need a special mention are as follows:
• Income Tax Appellate Tribunal
• Central Administrative Tribunal
• Intellectual Property Appellate Tribunal, Chennai
• Railways Claims Tribunal
• Appellate Tribunal for Electricity
• Debts Recovery Tribunal
• Central Excise and Service Tax Appellate Tribunal
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For instance, the Rent Controller decides rent cases, Family Courts try matrimonial and child
custody cases, Consumer Tribunals try consumer issues, Industrial Tribunals and/or Courts decide
labor disputes, Tax Tribunals try tax issues, etc.
It also needs special mention here that certain measures like setting up of the National Company
Law Tribunal (NCLT) to streamline and effectuate the liquidation proceedings of companies,
dispute resolution and compliance with certain provisions of the Companies Act, 20133 are also
in the pipeline.
Alternate Dispute Resolution (ADR) in India
An interesting feature of the Indian legal system is the existence of voluntary agencies called Lok
Adalats (Peoples' Courts). These forums resolve disputes through methods like Conciliation and
Negotiations and are governed by the Legal Services Authorities Act, 1987. Every award of Lok
Adalats shall be deemed to be a decree of a civil court and shall be binding on the parties to the
dispute. The ADR mechanism has proven to be one of the most efficacious mechanisms to resolve
commercial disputes of an international nature. In India, laws relating to resolution of disputes
have been amended from time to time to facilitate speedy dispute resolution in sync with the
changing times. The Judiciary has also encouraged out-of-court settlements to alleviate the
increasing backlog of cases pending in the courts. To effectively implement the ADR mechanism,
organizations like the Indian Council of Arbitration (ICA) and the International Centre for
Alternate Dispute Resolution (ICADR) were established. The ICADR is an autonomous
organization, working under the aegis of the Ministry of Law & Justice, Government of India, with
its headquarters at New Delhi, to promote and develop ADR facilities and techniques in India. ICA
was established in 1965 and is the apex arbitral organization at the national level. The main
objective of the ICA is to promote amicable and quick settlement of industrial and trade disputes
by arbitration. Moreover, the Arbitration Act, 1940 was also repealed and a new and effective
arbitration system was introduced by the enactment of The Arbitration and Conciliation Act, 1996.
This law is based on the United Nations Commission on International Trade Law (UNCITRAL)
model of the International Commercial Arbitration Council.
Likewise, to make the ADR mechanism more effective and in coherence with the demanding social
scenario, the Legal Services Authorities Act, 1987 has also been amended from time to time to
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endorse the use of ADR methods. Section 89 of the Code of Civil Procedure, as amended in 2002,
has introduced conciliation, mediation and pre-trial settlement methodologies for effective
resolution of disputes. Mediation, conciliation, negotiation, mini trial, consumer forums, Lok
Adalats and Banking Ombudsman have already been accepted and recognized as effective
alternative dispute-resolution methodologies.
A brief description of few widely used ADR procedures is as follows:
Negotiation: A non-binding procedure in which discussions between the parties are initiated
without the intervention of any third party, with the object of arriving at a negotiated settlement of
the dispute.
Conciliation: In this case, parties submit to the advice of a conciliator, who talks to the each of
them separately and tries to resolve their disputes. Conciliation is a non-binding procedure in which
the conciliator assists the parties to a dispute to arrive at a mutually satisfactory and agreed
settlement of the dispute.
Mediation: A non-binding procedure in which an impartial third party known as a mediator tries to
facilitate the resolution process but he cannot impose the resolution, and the parties are free to
decide according to their convenience and terms.
Arbitration: It is a method of resolution of disputes outside the court, wherein the parties refer the
dispute to one or more persons appointed as an arbitrator(s) who reviews the case and imposes a
decision that is legally binding on both parties. Usually, the arbitration clauses are mentioned in
commercial agreements wherein the parties agree to resort to an arbitration process in case of
disputes that may arise in future regarding the contract terms and conditions.
While the judicial process is largely considered fair, a large backlog of cases to be heard and
frequent adjournments result in considerable delays before a case is decided. However, matters of
priority and public interest are often dealt with expeditiously and interim relief is usually allowed
in cases, on merits.
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Constitutional and legal framework of Pakistan Refer
https://constitutionnet.org/country/pakistan
constitutional and legal framework of Sri Lanka
Refer https://constitutionnet.org/country/constitutional-history-sri-lanka
