Legal Environment

1. INTERNATIONAL LEGAL OBLIGATIONS OF INDIA

1.1  One of the most distinguishing features of State Sovereignty is the ability and power of the Sovereign to enter into International agreements and treaties.

1.2  While under International Law a sovereign is required to ratify International Treaties to create a legal obligation on the State, it does not specify any manner of incorporating such international obligations into municipal law. Therefore, States may adopt varied procedures and legislative actions for implementation of international law at the domestic level. States may follow ‘monist’ or ‘dualist’ schools of law for adopting international obligations at the domestic level. Under the ‘monist’ school of law, international obligations undertaken by the State automatically become national law as well. India follows the ‘dualists’ theory under which its international obligations are required to be enacted by the legislature for it to have the force of law at the domestic level.

1.3  Under Article 246 and 253 read with Entry 14 of List I of the seventh schedule of the Constitution, the Central Government has the executive power to enter into and implement international treaties. Article 51 (c) of the Constitution is the provision under which international law may be implemented in India through municipal laws. This provision enjoins the State ‘to endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another’. It may be noted that Article 51 is part of Chapter IV of the Constitution which deals with Directive Principles of State Policy, which are fundamental governance principles for the country though not enforceable in a court of law as a matter of right.

2. INDIA – DIVISION OF POWERS

2.1 The Republic of India is a Union of States constituting 29 States and 7 Union Territories. There are 3 branches of the government in India, namely the ‘executive’, the ‘legislative’, and the ‘judiciary’ branches.

2.2  The government of India is structured in accordance with the Constitution of India, which is the grund norm or the supreme law of the land. Under Article 246 of the Constitution of India, Parliament (national level legislative branch) has the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule of the Constitution of India, referred to as the ‘Union List’ and the State Legislatures (state level legislative branch) have exclusive power to make laws for their respective State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule of the Constitution of India referred to as the ‘State List’. Further, under Article 246(2), both the Parliament as well as the Legislature of any of the States has power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule of the Constitution of India referred to as the ‘Concurrent List’.

2.3  Illustration – Logistics services
The power to make laws of the centre and state, respectively, with respect to transportation and warehousing, which are important constituent of ‘logistics services’ may be deduced from the following entries in the Seventh Schedule of the Constitution of India:

Seventh Schedule to the Constitution of India

List I – Union List

Entry 22 Railways
Entry 23 Highways declared by or under law made by Parliament to be national highways.
Entry 24 Shipping and navigation on inland waterways, declared by Parliament by law to be national waterways, as regards mechanically propelled vessels; the rule of the road on such waterways.
Entry 25 Maritime shipping and navigation, including shipping and navigation on tidal waters; provision of education and training for the mercantile marine and regulation of such education and training provided by States and other agencies.
Entry 27 Ports declared by or under law made by Parliament or existing law to be major ports, including their delimitation and the constitution and powers of port authorities therein.
Entry 29 Airways; aircraft and air navigation; provision of aerodromes; regulation and organisation of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies.
Entry 30 Carriage of passengers and goods by railway, sea or air, or by national waterways in mechanically propelled vessels.
Entry 41 Trade and commerce with foreign countries; import and export across customs frontiers; definition of customs frontiers.
Entry 89 Terminal taxes on goods or passengers, carried by railway, sea or air; taxes on railway fares and freights.
Entry 92A Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce.
Entry 92B Taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.
List II – State List
Entry 13 Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.
Entry 56 Taxes on goods and passengers carried by road or on inland waterways.
Entry 57 Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III.
Entry 59 Tolls
List III – Concurrent List
Entry 31 Ports other than those declared by or under law made by Parliament or existing law to be major ports.
Entry 32 Shipping and navigation on inland waterways as regards mechanically propelled vessels, and the rule of the road on such waterways, and the carriage of passengers and goods on inland waterways subject to the provisions of List I with respect to national waterways.
Entry 33 Trade and commerce in, and the production, supply and distribution of,-

(a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;

(b) foodstuffs, including edible oilseeds and oils;

(c) cattle fodder, including oilcakes and other concentrates;

(d) raw cotton, whether ginned or unginned, and cotton seed; and

(e) raw jute.

Entry 35 Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.


3. SOURCES OF LAW

3.1 take from constitution of India – Article 12.

4. THE LEGAL FRAMEWORK

4.1 Laws may be broadly characterized as being sector agnostic or sector specific. For example, Contract Law would apply to all contracts and agreements, irrespective of the domain. On the other land, ____ would apply only to _____.

4.2 Laws may also be classified as;
(i) Written or unwritten. Rules of law may be reduced into a written form and embodied in a formal document, or it may be in the form of a customary practice and not found a place in any written form.

(ii) National or International. Laws may be operational within the boundaries of a nation state and regulating relation between its citizens (or persons within its boundaries), or body of rules that regulate relations amongst nation states and other international persons.

(iii) Public or Private. Areas of law where the nation state has a stake in sovereign capacity (like criminal law), or areas where the nation state has no direct interest in sovereign capacity (like contract law).

(iv) Substantive or Procedural. Laws which give rise to right and obligations (like, Indian Penal Code), or laws which set out the procedure for enforcement thereof (Criminal Procedure Code).

(v) Criminal or Civil. Laws regulating acts and or omissions in violation of public law (like theft), or laws regulating private rights (like contract law).

(vi) Act, Ordinance, Rules, Regulations. Legislation(s) framed by a legislative body (centre or state), __________.

 246. Subject-matter of laws made by Parliament and by the Legislatures of States.(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”’).

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

 253. Legislation for giving effect to international agreements.—Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

Subject-matter of laws made by Parliament and by the Legislatures of States –

(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule (in this Constitution referred to as the “Union List”).


(2) Notwithstanding anything in clause (3), Parliament and subject to clause (1), the Legislature of any State 1 also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).


(3) Subject to clauses (1) and (2), the Legislature of any State 1 has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ‘State List’).


(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.