WHAT IS LAW?
Since the concept of law consists of various ingredients, no single definition can cover all the ingredients. In a general sense it can be said that law consists of rules governing the conduct of man in a civilized society and that which is enforceable by a court of law. In its most simplistic form Law may be defined as “an aggregate of rules enforceable by judicial means in a given country”.
Law influences every aspect of human life from birth to death and even beyond death. Law helps to regulate human activity in society. Medicine and dentistry are no exceptions. To understand some fundamental concepts of law one must understand some basic terminologies and have an insight into the evolution of law in human social life.
HISTORY OF LAW
Law is a dynamic concept, which constantly changes and evolves depending on new rules and regulations. Law is not an end in itself but a means towards regulation of human activity and governance.
Legal systems existed in all ancient civilizations from Sumerian to Babylonian to Roman civilization.
Early Indian laws were first recorded in the Laws of Manu (c.1500 BC). Like many ancient legal systems it was essentially theological and emphasized on social norms and rituals in life and death. The caste system played an important role in the kind of punishments for different crimes.
The Vinaya or the Buddhist monastic codes are another ancient legal system.
Kautilya's Arthashastra (c 250 BC) outlined the power of the sovereign in addition to laws of marriage and forms of agreement. It also prescribed punishments for various crimes.
Modern law in India began with the Charter Act of 1627, which enabled the English to exercise jurisdiction over fellow English citizens.
Mayor's courts were first established through the Charter Act of 1687, with courts in Madras, Bombay and Bengal. Numerous reforms came into force through Lord Warren Hastings, Lord Cornwallis, and others. By 1858 India came directly under the British Queen. With this the 3rd Law commission, Indian High Courts Act 1861 and Indian Councils Act came into force. The Indian National Congress came into being in 1885. By 1935 the Indian Independence movement gained momentum.
The Government of India Act 1935 gave provincial autonomy and a Federal Court was established in Delhi for appeals from High Courts. Previously, all appeals went to the Privy Council in England.
India became independent through the Independence Act in 1947 and one year later all appeals to the Privy Council was abolished.
The present Constitution came into force on January 26th 1950
Law, Legality and Justice
In a strict sense law may be said to be a set of rules, recognized and enforced by the courts in the administration of Justice.
Acts done in accordance with law may be referred to as legal as opposed to illegal.
Justice may be said to be a standard of action, of and on the part of public officials in accordance with the entire body of law.
SOURCES OF LAW
Where Does Our Law Come from?
Laws basically are derived from 3 sources:
- Legislation (Statute laws)
- Court made law or un-codified law
- Custom as a source of law
Legislation (Statute Law)
Legislation is the formal enactment of law by the legislature authorized by the constitution. This is the written law or Leges Scriptae. It is also called the codified law.
The constitution of India is the fundamental law of India. It defines not merely the structure and function of Government, but also enumerates fundamental rights of individuals. The constitution of India was drafted by a drafting committee of the constituent assembly under the chairmanship of Dr. B. R. Ambedkar and was adopted on November 26, 1949.
The full text came into force on January 26, 1950 when India became a Republic. The constitution consists of 443 Articles, divided into 26 parts and 12 schedules. As a democracy the sovereign power is vested in the hands of the people. The constitution clearly indicates the organization, power and function of the three limbs of the Government.
- The executive power of the union is vested with the President.
- The legislative power lies with the Parliament.
The legislature or parliament enacts or amends laws, the president executes them and the judiciary interprets the laws. In a parliamentary form of government, the executive power (the President) is only a nominal authority.
GOVERNMENT FUNCTION
The constitution has outlined the distribution of power in the VII schedule to the constitution.
At the apex is the central government followed by 25 state governments. The state government has control over the organization of local self-government within the state.
The administrative machinery is divided among the following 3 levels of Government.
- Central government (Central list)—Defence, foreign affairs, banking currency, etc., only the central government legislates in the above areas.
- State government (state list)—Police, local government, health, sanitation, agriculture, etc. The state as well as central government can legislate upon these powers.
- Concurrent powers (Concurrent list)—Criminal law, criminal procedure, indecency, Trust/Trustees. Both the state and central government can legislate on these. In the event of a conflict the central law will prevail.
- Residuary powers—(powers not dealt with in the above) is vested in the central government.
The central legislative is called the parliament and it has two houses the upper house or Rajya Sabha and the lower house or Lok Sabha. The Rajya Sabha (elected from the state legislative assemblies) has 250 members (MPs) including those nominated by the President. The Lok Sabha has 550 members (MPs) elected by the people.
These two houses have the powers to enact laws in accordance with the provisions of the constitution. 5Similarly, each state has a state assembly consisting of members of the legislative assembly (MLAs) who are elected by the people of the state and their numbers vary from state to state. Some states have a legislative council as well.
Both houses of parliament have the primary power to enact laws in accordance with the provisions of the constitutions. Likewise the state government enacts laws binding on the state.
Local bodies and administrative bodies also enact laws within their jurisdiction by the power vested in them as a sub-ordinate authority. The validity of the laws passed by the legislature can be questioned in any court of law only if the law has violated any of the provisions of the constitution or fundamental rights of citizens.
- The advantage of legislated law is that they can legislate in advance.
- It can legislate on any subject within its competence.
- It can with exceptions over ride the law laid down by courts (It cannot modify or reverse decisions)
- It is not subject to appeal (although it can be declared void or invalid by courts of law if found unconstitutional).
Examples of legislations relevant to the medical/dental field are:
- Dentists Act 1948 (central legislation)
- The Consumer Protection Act 1986 (central legislation).
- The Tamil Nadu Private Clinic Establishment Act 1997 (state legislation).
Common Law or Judicial Law (uncodified)
As different from legislated law or codified law these are Judge made laws. These flow from judicial decisions. Courts and judges often have to make decisions that are not covered 6by legislated law. These decisions or rulings become law unless struck down or amended by a higher court.
When a higher court gives a judgment, deciding a question of law, it is reported in the law reports. A future judge faced with the same question of law will use the legal proposition emanating from the previous judgment. This is the principle of precedent becoming a source of law.
In India the law laid down by the Supreme Court is binding on all lower courts and authorities. They can supercede the law made by lower courts such as High Courts or district courts.
A large portion of Indian law, like the Law of Torts, is governed by common law (Jus commune) or Judge made laws.
In addition to laws that are made by judicial decisions, the courts also play an important role in interpretation of legislated law when the language, grammar or intent of a legislated law is unclear and open to interpretation. This is called judicial review or interpretation.
Examples of judge made laws relevant to dentistry are:
- Prohibition of smoking in public places. (Supreme Court of India and some State High Courts).
- Prohibition of sale and consumption of ‘Gutka’ (Supreme Court).
Classification of Law
It is impossible to have a comprehensive classification of law due to its complex nature. Simple divisions however help us understand the nature of law.
I. It can be classified as:
- Public law—Deals with powers of the state or authority and the relationship between individuals and the state like in Constitutional Law, Administrative Law and International Law, e.g. Legislation prohibiting smoking in public places.
II. Another Classification is based on the nature of laws.
- Civil law—They deal essentially with the rights and duties of individuals or groups of individuals and are dealt with in civil courts. Civil courts provide relief of civil wrongs done to individuals or corporations in the form of compensation or specific performances as in Torts or Contracts, e.g. civil negligence of a doctor/ dental surgeon resulting in complications like fracture of a jaw following extraction.
- Criminal law: Cases where an act is done against society and the remedy for which is penal in nature come under criminal law. The prosecutor is usually the state (e.g.) a rash and negligent dental procedure resulting in death of patient. For instance the failure of a dentist to recognize and treat a syncope resulting in shock and possible death.
Procedural and Substantative Law
Substantative law is the law relating to rights and duties, e.g. Indian Penal Code (1860), Indian Contract Act (1872), The Human Organ Transplantation law (1998) and Dentists Act (1948). The Dentists Act 1948 lays down the rules relating to dental qualification, years of study, registration and other rules.
Procedural law deals with the means of obtaining legal remedy. They outline the procedural aspects of the law process. They deal with the procedures to be adopted in the operation of Law, e.g. Criminal Procedural Code (CrPC) and Civil Procedure Code (CPC).
COMMONLY USED WORDS AND PHRASES
Jurisprudence
Jurisprudence deals with essential principles of law and legal systems. It deals with nature of legal rules, underlying meaning of legal concepts and essential features of legal systems. Medical Jurisprudence deals with principles and concepts pertaining to medicine and health.
Statute
An “Act” passed by the legislature and assented to by the President of India or Governor of a state. Statutes are of following kinds:
- Declaratory—which merely explains.
- Remedial—which confers a right/favour
- Amending—which alters the existing statutes.
- Consolidating—which amalgamates existing statutes.
- Codifying—which reduces the prevalent customs and/statutes to one set of rules.
Bill
A “Bill” is a draft form of law moved or to be moved before Parliament or State Legislature. A bill when passed by Parliament becomes an “Act”
Ordinance
“Ordinance” is the law promulgated by the President of India during the recess of parliament under Article 123 of the Constitution of India. Any Ordinance is a temporary measure passed by the President under his legislative powers though such power has to be exercised based on the advise of the Council of Ministers.
Suit
Any legal proceeding of a civil nature brought by one person against another is called a “Suit”.
Jurisdiction
Jurisdiction refers to the place where a suit can be instituted. Generally, a suit may be instituted in a court within the local limits of whose jurisdiction.
- Defendant resides; or
- Any of the defendants reside (where there are more than one defendant), with the permission of the court; or
- Cause of action wholly or in part arises, subject to satisfaction of the Court. Cause of action is the event that necessitated the filing of the suit.
Jurisdiction of courts and Tribunals maybe understood in the following manner:
- Original Jurisdiction
- Appellate Jurisdiction
For instance a claim for compensation in a consumer case against a dental surgeon in Salem (District head quarters) may be instituted before State Commission in Chennai in case the claim amount is Rs. 5 lacs or more because such a claim will fall under original jurisdiction of State Commission, Tamil Nadu. In case the claim is for less than Rs. 5 lacs, such a claim will be adjudicated before District Forum in Salem. But an appeal may be filed before the State Commission in Chennai, which will hear the appeal under its appellate jurisdiction.
Jurisdiction may also be seen from the angle of location of the parties and also amount of claim involved. They are referred to as:
- Location jurisdiction or territorial jurisdiction [depending on place of incident or residence of plaintiff (complainant) or defendant].
- Pecuniary jurisdiction (on the basis of Money involved).
Where cause of action for filing a complaint arises in Maharashtra and the opposite parties are also residing in Maharashtra such a case cannot be instituted outside 10Maharashtra. If a doctor in Maharashtra has treated a patient in Maharashtra, a complaint alleging medical negligence cannot be instituted in Gujarat on the ground that the patient has later shifted to Gujarat. This is referred to as locational jurisdiction.
Pecuniary jurisdiction is the pecuniary limit (based on the quantum of compensation claimed) of the court. For instance pecuniary jurisdiction of District Forum is upto Rs. 5 lacs. State Commission has pecuniary jurisdiction upto Rs. 20 lacs and pecuniary jurisdiction of National Commission is unlimited.
Judgment
The adjudication by a court of law may be either a “Decree” or an “Order”. Decree is the formal expression of adjudication so far as the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters, which forms the subject matter of the suit.
Summons
Summons is the process of court asking the opposite party to an action to appear and answer the claim preferred by the party who has brought the action (Order V of Civil Procedure Code).
Warrant
A “Warrant” is issued by a Court and directed to a police officer (Secs. 70 & 72 of Criminal Procedure Code). In judicial process, it is a writ issued by a Magistrate/Competent Judicial Authority authorizing any officer to make arrest, seizure or search or to do any other act incidental to the administration of justice.
Warrant Case
A warrant case is a case relating to an offense punishable with death, imprisonment for life or imprisonment for term exceeding 2 years.
Summons Case
A summons case is a case relating to an offence, and not being a warrant case.
Cognizable Offence
An offence in respect of which a police officer may arrest without a warrant in accordance with first schedule of the code of Criminal Procedure Code or under any law in force. E.g. Rash and negligent medical/dental act resulting in death is a cognizable offence (s. 304 A). Death on a dental chair is usually liable under criminal law as a cognizable offence.
Non-Cognizable Offence
An offence in respect of which a police officer has no authority to arrest without warrant (Criminal Procedure Code 1973). For example, simple injury following a dental procedure like pain and swelling after extraction.
Bailable Offence
An offence shown as bailable in the first schedule or which is made bailable by any other law for the time being in force. Cr. P.C. Sec. 2 (a). They can be set free on furnishing a bond or on the guarantee of the arrested person or some prominent citizen that he will be available for investigation. (S.304a is bailable). Bail can be demanded as a matter of right. The arresting police officer has to show reasons why he will not grant bail. The reason has to be valid and real, for instance the apprehension that he may commit more criminal acts or that he may leave the country.
Non-Bailable Offence
An offence other than bailable offence [Code of Criminal Procedure Sec. 2(a)]. Certain capital offences require the accused to be in custody by nature of the offence and founded apprehension that he may jump bail or tamper with evidence.
Complaint
Any allegation made orally or in writing to a magistrate, with a view to his taking action, that some person, whether known or unknown has committed an offence, but does not include a police report.
Writs
Both the Supreme Court and High Courts have Writ Jurisdiction. In other words they are entitled to declare a law as a nullity and quash/set aside any unlawful/unconstitutional orders, violating/abridging /restricting fundamental rights. These writs are called writs of:
- Habeas Corpus—a writ or direction against unlawful arrest and detention.
- Mandamus—a writ against unconstitutional or unlawful administrative order, etc. It can be used against officials of the government.
- Certiorari—a writ or direction issued by a higher court to a lower court or tribunal directing that the records of the case be sent to itself for re-determination.
- Prohibition—a writ or direction issued by a higher court forbidding the lower court or tribunal from hearing a case brought before it on the ground of lack of jurisdiction.
HIERARCHY OF COURTS
* For instance Consumer Forum is a tribunal with following hierarchy (A three tier system) and an Appeal from the order of National Commission lies only to Supreme Court.