The Government of India dates back to 1833 when the Charter Act 1833 was enacted by the British Parliament. The said Act vested for the first time legislative power in a single authority, namely the Governor General in Council. By virtue of this authority and the authority vested under him under section 22 of the Indian Councils Act 1861, the Governor General in Council enacted laws for the country from 1834 to 1920. After the commencement of the Government of India Act 1919 the legislative power was exercised by the Indian Legislature constituted thereunder. The Government of India Act 1919 was followed by the Government of India Act 1935. With the passing of the Indian Independence Act of 1947 India became a Dominion and the Dominion Legislature made laws from 1947 to 1949 under the provisions of section 100 of the Government of India Act 1935 as adapted by the India (Provisional Constitution) Order 1947. Under the Constitution of India which came into force on the 26th January 1950, the legislative power is vested in Parliament.
THE STATE OF THE UNION OF INDIA( BHARAT ) EXECUTES SOVEREIGN FUNCTION THROUGH ITS THREE BRANCHES
The Union Government (Supremely centralized) is divided into three branches; the Legislative, the Executive, and the Judicial branch. In the Union of India, the head of Government (the President) shares his powers with the Parliament and the Judiciary system which are independent of each other but, at the same time, depending on each other’s decisions to function harmoniously. The Country is a Constitutional Democratic Republic, therefore the Constitution is the supreme law of the land. There are many differences between the Indian democracy and that of other countries since every regional state (28 +7) inside the Union holds the limited power to make(sans Union Territories) their laws as per the Seventh Schedule of the Constitution ( State list) and as long as it does not contradict the Constitutional provisions. The Political party having the majority in the parliament mainly rules the Democratic Republic Union of India (country). The Constitution of India provided for the pattern of government and responsibility through directive principles of the state policy.
Sovereign Capacity of the Indian State:-
1. The Union Territory ( Part -1)
2. The Citizen of the Union( Part -2)
3. The Union Government( Part-5)
• Defending power(7.1.1-2)
• Self Capacity of holding Arms and Atomic Energy(7.1.5-6)
• Foreign and Diplomatic Capacity(7.1.10-11,14)
• War and Peace(7.1.15)
• Sovereign Currency & Coinage(7.1.36)
JUDICIAL BRANCH
“THE STABILITY AND SUCCESS OF THE NATIONAL GOVERNMENT … DEPEND IN CONSIDERABLE DEGREE ON THE INTERPRETATION AND EXECUTION OF ITS LAWS.”
George Washington
To the Supreme Court
“IT IS AS MUCH THE DUTY OF GOVERNMENT TO RENDER PROMPT JUSTICE AGAINST ITSELF IN FAVOR OF CITIZENS AS IT IS TO ADMINISTER THE SAME BETWEEN PRIVATE INDIVIDUALS.”
Abraham Lincoln
First Message to Congress
COURTS AND TRIBUNALS AT A GLANCE
CIVIL COURT
COMMERCIAL COURT
FAMILY COURT
CRIMINAL COURT
ARBITRATION
LOK ADALAT (NALSA along with other Legal Services Institutions conducts Lok Adalats. Lok Adalat is one of the alternative dispute redressal mechanisms, it is a forum where disputes/cases pending in the court of law or at the pre-litigation stage are settled/ compromised amicably)
DEBT RECOVERY TRIBUNAL
CONSUMER COURT
INCOME TAX AUTHORITIES
LABOUR COURT & TRIBUNALS
MOTOR VEHICLES CLAIM TRIBUNAL
WRIT JURISDICTION
EXECUTIVE BRANCH
(JURISDICTION UNDER PT V-CH 1 CONSTITUTION OF INDIA)
Ministry of Law and Justice is the oldest limb of the Government of India dating back to 1833 when the Charter Act 1833 was enacted by the British Parliament. The said Act vested for the first time legislative power in a single authority, namely the Governor General in Council. By virtue of this authority and the authority vested in him under section 22 of the Indian Councils Act 1861, the Governor General in Council enacted laws for the country from 1834 to 1920. After the commencement of the Government of India Act 1919 the legislative power was exercised by the Indian Legislature constituted thereunder. GOVT OF INDIA 1919 ACT was followed by the GOVT OF INDIA ACT 1935. With the passing of the Indian Independence Act, of 1947 India became a Dominion and the Dominion Legislature made laws from 1947 to 1949 under the provisions of section 100 of the Government of India Act 1935 as adopted by the India (Provisional Constitution) Order 1947. Under the Constitution of India which came into force on the 26th January 1950 the legislative power is vested in Parliament.
DEPARTMENTS UNDER THE MINISTRY AND RESPONSIBILITIES
DEPARTMENT OF LEGAL AFFAIRS
1. Advice to Ministries on legal matters including interpretation of the Constitution and the laws, conveyancing and engagement of counsel to appear on behalf of the Union of India in the High Courts and subordinate courts where the Union of India is a party.
2. Attorney General of India, Solicitor General of India, and other Central Government law officers of the States whose services are shared by the Ministries of the Government of India.
3. Conduct of cases in the Supreme Court and the High Courts on behalf of the Central Government and on behalf of the Governments of States participating in the Central Agency Scheme.
4. Reciprocal arrangements with foreign countries for the service of summons in civil suits, for the execution of decrees of Civil Courts, for the enforcement of maintenance orders, and for the administration of the estates of foreigners dying in India intestate.
5. Authorization of officers to execute contracts and assurances and of property on behalf of the President under Article 299(1) of the Constitution, and authorization of officers to sign and verify plaints or written statements in suits by or against the Central Government.
6. Indian Legal Service.
7. Treaties and agreements with foreign countries in matters of civil law.
8. Law Commission.
9. Legal Profession including the Advocates Act, 1961 (25 of 1961) and persons entitled to practice before High Courts.
10. Enlargement of the jurisdiction of the Supreme Court and the conferring thereon of further powers; persons entitled to practice before the Supreme Court; references to the Supreme Court under Article 143 of the Constitution of India.
11. Administration of the Notaries Act, 1952 (53 of 1952).
12. Income-tax Appellate Tribunal.
13. Appellate Tribunal for Foreign Exchange.
14. Legal aid to the poor.
LEGISLATIVE DEPARTMENT
1. The drafting of Bills, including the business of the Draftsmen in Select Committees, drafting and promulgation of Ordinances and Regulations; enactment of State Acts as President’s Acts whenever required; scrutiny of Statutory Rules and Orders (except notifications under clause (a) of section 3, section 3A and section 3D, of the National Highways Act, 1956 (48 of 1956).
2. Constitution Orders; notifications for bringing into force Constitution (Amendment) Acts.
3. (a) Publication of Central Acts, Ordinance, and Regulations;
(b) Publication of authorized translations in Hindi of Central Acts, Ordinances, Orders, Rules, Regulations and bye-laws referred to in section 5(1) of the Official Languages Act, 1963 (19 of 1963).
4. Compilation and publication of unrepealed Central Acts, Ordinances and Regulations of general statutory Rules and Orders, and other similar publications.
5. Elections to Parliament, to the Legislatures of States, to the Offices of the President and Vice-President; and the Election Commission.
6. Preparation and publication of standard legal terminology for use, as far as possible, in all official languages.
7. Preparation of authoritative texts in Hindi of all Central Acts and of Ordinances promulgated and Regulations made by the President and of all rules, regulations, and orders made by the Central Government under such Acts, Ordinances and Regulations.
8. Making arrangements for the translation into official languages of the States of Central Acts and of Ordinances promulgated and Regulations made by the President and for the translation of all State Acts and Ordinances into Hindi if the texts of such Acts or Ordinances are in a language other than Hindi.
9. Publication of law books and law journals in Hindi.
The following subjects, which fall within list III of the Seventh Schedule to the Constitution of India (as regards Legislation only) –
10. Marriage and divorce; infants and minors; adoption, wills; intestate and succession; joint family and partition.
11. Transfer of property other than agricultural land (excluding Benami transactions registration of deeds and documents).
12. Contracts, but not including those relating to agricultural land.
13. Actionable wrongs.
14. Bankruptcy and insolvency.
- Trusts and trustees, Administrators, General and Official Trustees.
- Evidence and oaths.
- Civil Procedure including Limitation and Arbitration.
- Charitable and religious endowments and religious institutions.
Department of Justice is a part of the Ministry of Law & Justice as per the Allocation of Business Rules of the Government of India
1. Appointment, resignation, and removal of the Chief Justice of India and Judges of the Supreme Court of India; their salaries, rights in respect of leave of absence (including leave allowances), pensions and traveling allowances.
2. Appointment, resignation, and removal, etc., of Chief Justice and Judges of High Courts in States; their salaries, rights in respect of leave of absence (including leave allowances), pensions and traveling allowances.
3. Appointment of Judicial Commissioners and Judicial Officers in Union Territories.
4. Constitution and organisation (excluding jurisdiction and powers) of the Supreme Court (but including contempt of such Court) and the fees are taken therein.
5. Constitution and organisation of the High Courts and the Courts of Judicial Commissioners except for provisions as to officers and servants of these courts.
6. Administration of justice and constitution and organisation of courts in the Union Territories and fees taken in such courts.
- Court fees and Stamp duties in the Union Territories.
- Creation of all India Judicial Service.
- Conditions of service of District Judges and other Members of Higher Judicial Service of Union Territories.
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Extension of the Jurisdiction of a High Court to a Union Territory or exclusion of a Union Territory from the Jurisdiction of a High Court.
LEGISLATIVE BRANCH ( JURISDICTION UNDER the SEVENTH SCHEDULE )
Other State Functions
Election Commission of India
See also Law of Election in India
VOCABULARY WATCH
SOVEREIGN– There are limits to the power of a State. What State, for example, could compel all men to kill their wives, or to accept religious doctrine formulated by the State? A State cannot even compel a man to perform his contract. It can issue an order. It can punish for contempt of court. It can direct an officer of the court to act for him. But it cannot compel him to perform. It is true that a State does employ some enforcement of the law, but a naked and arbitrary force is not a characteristic of a State. If it were it would guarantee, not law and order, but anarchy. In controversies between the states, the United States Supreme Court does not even undertake to enforce its decrees but relies wholly upon voluntary obedience and public sentiment. Another proof that force is not a characteristic of sovereignty is found in the jurisdiction of the person by imputed consent when there is no possibility of exercising the power of enforcement. But the best proof of this fact is found in declaratory judgments.
In Great Britain, sovereignty is possessed by the two houses of Parliament; in the United States, by many organs geared together, both federal and state, including the executive, the legislature, the judiciary, and the amending machinery.
If any organ of Government seems sovereign it is the Supreme Court. It has established its supremacy over the other branches of the Indian Government and over the state government by declaring unconstitutional the acts of the legislative and executive branches of government, by making the state courts inferior courts in the federal system” and by determining where under the Constitution the line shall be drawn between personal liberty and social control. Yet its powers are limited by the constitutional doctrine of separation of powers; its members can be impeached; it derives all its legal powers from the Constitution, and like the Constitution can be changed or abolished by a power back of both. It would seem, therefore, that though it may exercise many of the powers of sovereignty, it is not sovereign, but is acting as an agent for a sovereign power, its principal.
At the present time, the people of India are politically organized under constitutions in a dual form of government. This is an accident. But the people are not an accident. They could change or abolish both their dual form of government and their constitutions. At the present time, the sovereign powers of the people are exercised by the various organs of government. People as politically organized are sovereign. Again the Constitution is not sovereign because, instead of controlling the people, it is controlled by the people and can be unmade by them as they once made it.
COURT– “The King can do no wrong.” The dogma is accepted by the courts in India without an attempt to justify it. Supreme Court, in exercising the power to make a law which it has taken upon itself under the ‘procedure established by law ‘clause. Despite having said so, the authority of the Court never rests on its divinity but in the sovereign will of people as a whole as organized at present with their collective wish in our democratic form of government.
LAW-Law in INDIA is neither a command nor from a Superior, but a scheme of social control imposed by the People as a whole upon themselves for the protection of certain social interests, so as to prevent any particular individual from doing what the social order cannot permit all to do.
Comparative Study
The Court of Justice of the European Union
The Court of Justice of the European Union is the judicial institution of the European Union and of the European Atomic Energy Community (Euratom). It is made up of two courts: the Court of Justice and the General Court. Their primary task is to examine the legality of EU measures and ensure the uniform interpretation and application of EU law.