This document is part of the reference guide to laws, created and published to help unpack the vast and complicated landscape of laws useful for the protection of India’s coasts. Information contained in this document is collated from various sources. Treat this as a beginner’s reference guide, useful for people on the ground, who are committed to protecting India’s coastal commons. Visit …. to take a look at the other sections of the reference guide.
This document briefly lays down the different levels of law – the Constitution, Acts, notifications etc.; centre-state jurisdiction, and conflict between these laws. The document also provides a quick guide to some phrases we come across regularly in legislation and key points in reading and understanding a judgement.
The question of “What is law?” has been debated for centuries by legal scholars and no clear answers exist. Early European legal scholars theorised that law was ‘natural’ , as if it came from some divine source. Later scholars rejected this approach in favour of a more ordinary understanding of law. While differences exist in the details, simply put, ordinary law draws from a wide range of standards and principles which act as instruments of social control. A society’s ideas of justice and morality guide what constitutes such standards and principles. When written down as text in a particular form it constitutes ‘codified law’. The shift away from seeing law as being ‘divinely’ ordained is significant since it changed people’s relationship with the law. Since law is now understood as being derived from people’s ideas of justice and morality, people themselves can make or change law. This is the expectation from democracies, where it is the right and duty of citizens to engage in the lawmaking process.
Most law is codified (recorded as text) through different sources of law with differential weightage given to each under varied circumstances. The main sources of Indian laws and their hierarchy is given below:
There are also ‘Policies’, which do not constitute ‘law’ but these are overarching documents that lay out the vision of the government and can be important to understand the reasoning, context and direction of decision-making around a particular issue. However, policies are not legally enforceable.
Decision-making within the government is divided between the Central and the State Governments. Legislative authority is determined on the basis of lists as given within the 7th Schedule of the Constitution. This is divided into Union, State and Concurrent Lists.
The Union List (List I) contains 97 subjects over which Parliament has exclusive powers to legislate. This includes regulation and development of oilfields, mines and mineral development, inter-state rivers and major ports.
The State Legislatures have exclusive power to legislate with respect to 66 subjects in the State List (List II), such as public health and sanitation, agriculture, water supplies, irrigation and drainage, and fisheries.
Under the Concurrent List (List III), both Parliament and the State Legislatures have overlapping and shared jurisdiction over 52 areas including forests, the protection of wildlife, mines and mineral development not covered in the Union List.
Sometimes, in the process of law-making, certain provisions within a particular legislation may appear contradictory to another provision in a different or in the same legislation. In cases where such a conflict goes to court, courts try to read the provisions as ‘harmonious’, i.e. the provision is interpreted in such a way as to make sure that both provisions can be simultaneously considered as valid. For instance, according to the Wild Life Protection Act, 1972, no one can hold property within any area that is declared a National Park or in the core area of a Wildlife Sanctuary and any existing rights are to be extinguished within such an area. However, a few decades later, in 2006, the The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act was promulgated. This Act recognised the rights of adivasi and forest dwelling communities over common property and individual property in forest areas. On plain reading, it appears as if there is a conflict between the text of the two laws. However, if we apply the principle of harmonious construction to these two laws, we recognise that ordinarily, no one can hold property within a protected area, but this does not prevent the recognition of rights of adivasi and forest dwelling communities even within protected areas. So, only claimants under the FRA could claim / retain rights within such protected areas. It is in the reading (or interpretation) of these two provisions and the acknowledgement of their intent that harmony between provisions is achieved by concerned authorities. However, between different laws, some of these general principles apply (although there are exceptions to these) –
It is important to note that while these key principles are helpful, there exists a lot of ambiguity and grey areas in the interpretation of statutes and their implementation. This is particularly true in environmental jurisprudence due to a multiplicity of laws governing the same spaces/resources as well as of institutions.
Going through any ‘Bare Act’ (ie. plain text of the Act), one is confronted with a neat amount of legalese which often makes a law difficult to read seamlessly. We’ve presented below a few terms that you are most likely to encounter, with a simple explanation of its meaning.
Judgements and orders of courts are not intended to be law, but interpretations of law in the case of conflict. The judgement/order in a given case may be situation-specific (such as in property disputes which only affects the parties to the dispute), or it might be a general interpretation of law which has implications for society (such as in environmental law cases).
Court decisions are expressed in two key ways – Orders and Judgements. ‘Orders’ are expressions of any decision taken by the Court, which could range from simple procedural matters such as asking for a witness to be present in Court or including new parties in the matter or even asking either party to maintain status quo in a particular situation. A ‘judgement’ on the other hand, is the final order issued by the Court. It is the final decision and resolves the matter for the parties who have approached the Court and closes it once and for all. A judgement is also an order. However, all orders are not judgements.
Judgments may often run into several pages. There are a few key aspects of judgements (and some orders) that are particularly useful for us. Many judgements and some orders will contain a statement of facts and a history of the case – this is useful because it gives us an official record of the ‘facts’ as accepted by the court, as well as an understanding of the history of the case itself.
As mentioned above, a judgement is the final decision of the court, and therefore, contains not only the decision of the court, but also interpretations of the law as well as the Court’s observations. The parts of a judgement that are observations, suggestions and general comments on the state of things are not binding. On the other hand, that part of a judgement that contains the principles of law, interpretations, and the final decisions of the court are binding not only on the parties involved, but also set a binding precedent for future cases with the same facts. This part is called the ratio decidendi, ie. reason for decision. It is important to separate out the ratio decidendi to understand what part of the judgement is binding and what is not. For example, in Swaraj Abhiyan v. Union of India [WP (C) NO. 857 OF 2015], the Supreme Court observed that “An ostrich-like attitude is a pity, particularly since the persons affected by a possible drought-like situation usually belong to the most vulnerable sections of society. The sound of silence coming from these States subjects the vulnerable to further distress.” This does not constitute a binding precedent of the Court, but merely an observation. On the other hand, the following statements constitute a binding direction “…we are of the opinion that since the Manual was published in 2009 several new developments have taken place and there is a need to revise the contents of the Manual. We direct that the Manual be revised and updated on or before 31st December, 2016”.
The judgement of a higher bench (a bench with more number of judges on it) is binding on all lower benches of the same court, for a case on the same question of law before it. A previous judgement of a High Court is binding precedent (cannot be departed from) for that High Court, and has persuasive value (not binding) as precedent before other High Courts. A judgement of the Supreme Court is binding on all same or lower order benches of the Supreme Court, and on all High Courts.
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The views expressed in this paper are of the authors and do not necessarily reflect the views of their organisations.
