What is India's legal system?

 

Ancient Indian legal system

Teaching purpose and requirements: To understand the origin, development and general laws of the 2113 law of ancient India.

 Palm 4102 grasps the origin, basic characteristics, basic system and historical status of the ancient Indian slavery law.

Section 1 The development and origin of ancient Indian law

Ancient Indian law was the general term for the slavery laws of the entire South Asian subcontinent (now India, Pakistan, Bangladesh, etc.) before the 6th century.

I. Produce

1. After the Aryans invaded India in the 15th century BC, India had the earliest handed down document "Vedas". It is the oldest and sacred source of law in India.

2. In the 7th century, the primitive Vedicism evolved into Brahmanism, and Brahmanism respected and maintained the caste system.

II. Development and evolution

1. Due to the development of slavery and the intensification of the struggle of the working masses, Buddhism came onto the stage of history against Brahmanism in the 6th century.

Buddhism became more and more widely spread. In the 3rd century, Ashoka designated Buddhism as the state religion.

2. Around the 4th century AD, some doctrines of Brahmanism, Buddhism, Jainism and folk beliefs evolved into Hinduism 1653 (New Brahmanism). Hinduism is formed by fusing the legal norms of Dharma and Buddhist law.

III. Origin

(1) Veda

"Vedas" India's earliest handed down document, the oldest scripture of Brahmanism, is the oldest and sacred source of law in India.

(2) Law

Explain and supplement the Vedic classics, attached to the Veda.

(3) Code

Brahmin priests compiled teaching texts based on Vedic scriptures, generations of inheritance, and ancient customs.

The Code of Manu is the most famous.

 

What is the "Code of Manu"?

The Code of Manu or Manusmriti was formed approximately in the 2nd century BC to the 2nd century AD. It is the first relatively formal legal book in the history of Indian legal system and has considerable authority.

 It discusses the essence of Veda more comprehensively and stipulates the basic content with caste system as the core. 

The code had a profound influence on the history of Indian legal system and spread to Southeast Asia and the Far East.

 

(4) Buddhist scriptures

Collectively: San Zang (Jing Zang, Lun Zang, Lv Zang), the central content of Buddhist law is the "Five Precepts".

 

(5) The edict of the king.

Section 2 The Basic System of Ancient Indian Law

1. The caste system

What is the caste system?

The caste system is the social hierarchy of ancient India and the core content of ancient Indian law.

According to the Brahman Law, the legal status and rights and obligations of various surnames are completely different.

The highest caste is Brahman, which is the priestly caste, and holds the power of religious sacrifice.

The second caste is Kshatriya, which is the samurai caste, which controls the military and political power.

The third is the Vaisha, which is engaged in commercial or agricultural production, and belongs to the civilian caste.

The fourth caste Sudra, engaged in lowly occupations, mostly slaves. The caste system advocated and maintained by Brahmanism is the basic system of ancient Indian society.

 

1. Examples of Code

2. Pay attention to protecting the ownership of higher castes

3. The claims of higher castes are specially protected

4. Marriage is considered to be a combination of divine intentions, and the system of intra-caste marriage is strictly maintained. The higher castes are polygamous, while the lower castes are monogamous.

5. Same crime and different punishment for different castes

6. There is a lack of a unified and fixed court organization in the litigation system, and divine judgment

 

 The characteristics and historical status of ancient Indian law

A. The characteristics of ancient Indian law

(1) Inseparable from religion

There are many religions in India, which affect the structure and system of Indian law and make it extremely complicated; law and religion are closely linked, religious doctrines rely on the power of law to be implemented, and laws rely on doctrine and belief to be implemented.

 

(2) Publicly publicize social inequality, determine the status, rights and obligations of all residents in legal form, and form a complete caste system. It is the "caste law".

 

(3) Combining law, ethics, morality and philosophy into one, the code is essentially a mixture of them. Lack of independence.

 

B. The historical status of ancient Indian law

1.  It occupies an important position in the history of Indian legal system
2.  Indian law system

What is the Indian law system (death law system-historical sites)?

The law system is the most basic method used in comparative law.

Legal system generally refers to the general term for the laws of a number of countries and regions with a certain commonality or common tradition.

The legal system does not refer to the general term of the laws of a country, but the general term of the laws of some countries or regions.

Since, there is no precise explanation for the concept of legal system, scholars also argue that the laws of the world should be divided into several legal systems.

Some scholars have suggested that it can be divided into two major legal systems, namely the dead legal system and the living legal system.

The former includes Babylonian and Egyptian types, and the latter includes British-American, French-German and other types.

Most scholars advocate dividing the civil law system and the common law system. Most Japanese scholars advocate the division into two major legal systems, Eastern and Western.

Some scholars argued that it can be divided into three major legal systems, that is, the continental law system, the common law system and the socialist law system, or the primitive nation law system, the Oriental law system, and the Greek and Roman law systems.

 Whether the law of a socialist country constitutes a legal system juxtaposed with the two major legal systems in the West has been controversial at the beginning of the Western legal circles after the war.

One opinion holds that the laws of socialist countries are similar to the civil law system in terms of structure and form, and therefore should belong to a branch of the civil law system and should not be regarded as an independent legal system.

However, the dominant opinion believes that the laws of socialist countries are fundamentally different from Western laws in terms of guiding ideology and social systems, so they should become an independent legal system.

For this reason, some Western comparative jurists have made new interpretations of the traditional concept of legal system after the war, expanding the meaning of the term "legal system" to include laws of different social systems.

What is more noteworthy here is that Western comparative jurists often classify contemporary Chinese law as one of some minor legal systems outside the "three main legal systems".

Some scholars argue that it can be divided into four major legal systems, namely, civil law, common law, Islamic law, and socialist law.

Some scholars have suggested that it can be divided into five major legal systems, namely, Anglo-American law, civil law, Islamic law, Indian law, and Chinese law, or divided into ancient oriental legal culture (Egypt, cuneiform and Hebrew law), classical Ancient legal culture (Greek, Roman, church and maritime law system), northern legal culture (German, Slavic, Celtic law system), Anglo-American legal culture (English, American law system), Oriental legal culture (China, India, Islam) , Japan and other legal systems).

The Chinese legal system refers to the "Law of Law" in the 5th century to the "Law of Tang Dynasty" in the 7th and 8th centuries (including the "Wu Morality Law" of Tang Gaozu, the "Zhenguan Law" of Tang Taizong, and the "Yonghui Law" of Tang Gaozong, etc.) "Qing Law", died in 1840.

 The basic characteristics of the Chinese legal system (compared with the two major western legal systems) are: monarch and democracy; Tao and law, punishment and people.

The Islamic legal system (7th-11th centuries) is mainly manifested in the Quran, the words and deeds of Muhammad, and the works of jurists). The Indian legal system (7th-5th centuries ago) is based on the "Manu Code", and the "caste" system is the basic feature (4 castes: Brahman means monk, Kshatriya means warrior, Vaisha means peasant and merchant, etc.) Dhara is the lowest laborer).

Some scholars argued that it can be divided into 16 legal systems, namely:

•  Roman law
•  Anglo-American law
•  Indian law
•  Chinese law
• Hebrew law
•  Greek law
•  Japanese law
• Germanic law
• Maritime law and monastic law Faculty
•  Celtic law
•  Slavic law
•  Arab law
•  Egyptian law
•  Babylonian law
•  Continental law.
• Generally, the Japanese "Five-Division Method" of Hozumi Chenzhong is adopted, namely:
•      Chinese legal system
•      The Indian legal system
• ·  The Islamic legal system.

·       The Anglo-American legal system and the continental legal system. Among them, the Chinese law system and the Indian law system are dead law systems

 

·       The Anglo-American law system and the continental law system are living law systems.

 

Invest in India, five major legal risks must be guarded against

    The current level of economic and trade development between China and India is not high. In 2013, the bilateral trade volume between China and India reached 65.471 billion U.S. dollars.

From 2000 to 2014, China's total investment in India was only 400 million U.S. dollars, accounting for 0.18% of India's foreign direct investment.

 

　　 China’s investment in India has broad room for growth, and the economic structure between China and India is also highly complementary. China's manufacturing output value has ranked first in the world, and it has accumulated rich experience, technology and capital.

 In terms of large-scale infrastructure construction, China has an unparalleled advantage in other countries. India urgently needs to improve its manufacturing and infrastructure construction levels. 

According to the Indian Ambassador to China, India plans to increase the proportion of manufacturing in its economic structure from the current 16% to 25% by 2022.

 

Is India still Seeking Investment form China?

　　 On the other hand, due to India’s huge trade deficit with China, India is actively seeking to attract investment from China to fill the expanding trade deficit.

 It is said that China will establish two industrial parks in Ahmedabad and Pune, India, to introduce enterprises such as energy equipment and automobile manufacturing. It is time for Chinese companies to increase investment in India.

 

　　 Although China's investment in India is in the ascendant, the legal risks in the investment process cannot be ignored. 

The legal environment in India and China is very different. Understanding the legal risks that may arise in investing in India and properly responding to them is necessary for Chinese companies to successfully explore the Indian market.

 

　　Risk 1: Investment policy diversification

　　India’s legislative and decision-making systems are relatively fragmented, and both central and local laws have important influence on foreign investment. India is a federal state, with 28 states and 7 joint territories. 

Except for the five joint territories, the other states and joint territories are all elected by local people to form legislative bodies and governments, and they have legislative powers over the internal affairs of the state.

 

　　 Foreign investment in India must not only comply with the foreign investment laws and policies promulgated by the Indian Federal Government, but also comply with the laws and regulations governing foreign investment in various states.

 Every investment requires government approval in terms of land use, environmental protection, water and electricity, etc. The legislative and approval powers in these areas belong to the internal affairs of each state and are controlled by the local government.

 

　　The economic development level of various states in India is uneven, and the language and culture are different, which leads to many differences in laws between states. Therefore, companies intending to invest in India not only need to understand the legal system of the Indian Federal Government on foreign investment. But also need to carefully investigate the foreign investment legal environment where the investment destination is located in order to successfully pass the investment approval of the local government.

 

　　Risk 2: Strict labor regulations

　　 Compared with other countries, India’s labor laws are strict and complicated in content. 

India's labor law is generally considered to be one of the most stringent and complex labor laws in the world, which limits the development of Indian manufacturing to a certain extent.

 

　　The laws governing wages and remuneration at the federal level in India are the "Wage Payment Act 1936" and the "Minimum Wage Act 1947". Local governments also have different minimum wage regulations for industrial workers, ranging from US$3.5 to US$7 per day. 

Business closures and layoffs that affect the interests of workers are governed by the "Industry Dispute Act of 1947", which requires companies employing more than 100 employees to obtain government approval before layoffs or cessation of business.

 

　　 In addition, the issue of strikes is also a major concern for companies investing in India. According to statistics from the Ministry of Labor of India, in the first nine months of 2012, the labor time lost due to strikes amounted to 2 million working days (strike time × number of strikers), which is a significant increase compared with the 10 million working days lost in 2011 improve. 

Labour disputes in India are mostly triggered by workers' dissatisfaction with wages, working environment, and union representation qualifications. The strike-prone industries are mainly concentrated in the banking and automobile manufacturing sectors. 

The 2012 Suzuki Motor Strike in Japan caused Suzuki Motor India to suspend business for a month and lost 300 million US dollars. 

In order to promote a smoother settlement of labor disputes, the Indian Parliament passed the "Industrial Dispute Law Amendment" in 2010, which stipulates that workers can directly submit labor dispute arbitration to the court or arbitration tribunal, and provide more professional judges for labor dispute arbitration. Or arbitrator.

 

　　 Risk 3: More social responsibility

　　According to India's 2013 Companies Act, companies investing in India will assume greater social responsibilities. Around the world, companies are encouraged to actively fulfill their social responsibilities. 

However, India's "Corporate Law Amendment" passed in 2013 changed corporate social responsibility from an encouraging nature to a mandatory requirement for the first time. 

India’s "Corporate Law Amendments" and "Corporate Social Responsibility Rules" that took effect on April 1, 2014 stipulate that as long as the company’s sales in any fiscal year exceed US$200 million, the company’s net assets exceed US$100 million, and the annual net profit exceeds $1 million, the company must assume social responsibility. Companies here include foreign companies and branches of foreign companies in India. 

The rules require the establishment of a corporate social responsibility committee within the company, which is responsible for supervising and implementing the company's social responsibility related activities. Companies must spend 2% of their average profits in the previous three years on fulfilling social responsibilities.

 The scope and content of social responsibility are mainly aimed at the national conditions of India, focusing on public policies such as reducing poverty, promoting gender equality, improving education and labor skills, and protecting the environment.

 

　　Risk 4: Patent Compulsory License

　　The “compulsory license” system in Indian Intellectual Property Law deserves special attention from enterprises.

 

　　 Compulsory license is an exception in the patent system, which refers to the government, out of public policy considerations, compulsorily license a patented product that is still in the protection period to a non-patent owner to produce it to meet social needs.

 Under the WTO’s Agreement on Trade-Related Intellectual Property Rights, the patent compulsory licensing system is mainly applicable to the field of public health.

 Generally, compulsory licensing of drugs can be permitted when the country with a major epidemic cannot afford the necessary therapeutic drugs. However, the scope of application of the compulsory licensing system stipulated in Article 84 of the Indian Patent Act 1970 is far greater than that of the public health field, and the threshold for implementation is relatively low.

 As long as the patented product does not meet the reasonable needs of the Indian public, the price of the product exceeds the reasonable affordability of the Indian public, or the patent is not implemented in India in any of the three conditions, the Indian government can enforce the patent. 

According to the Indian government's interpretation of "patents not implemented in India" in the 2012 Nexavar anticancer drug case, implementation is equivalent to production.

 Therefore, to avoid compulsory licensing of patents, patentees almost have to produce patented products in India. Some Indian lawyers suggested that Chinese companies license their patents to local Indian companies, who will be responsible for assembly and sales. 

For high-tech companies with independent intellectual property rights, it is very necessary to understand the Indian intellectual property legal environment in detail before investing in India.

 

　　Risk 5: Inefficient judicial level

　　 India’s relatively inefficient judicial system may pose risks to the performance of contracts. Western investors often complain about India’s lack of respect for contracts. According to World Bank statistics, the efficiency of Indian courts in resolving disputes ranks sixth in the world. Most Indian courts have difficulty coping with a long backlog of cases due to insufficient staff and lack of technology.

 

　　In order to improve the efficiency of commercial contract execution and attract foreign investment, the Indian government attaches great importance to the development of non-litigation dispute resolution methods.

 In 1996, India formulated the Indian Arbitration and Mediation Act based on the model arbitration law promulgated by the United Nations Commission on International Trade Law. The Indian Ministry of Justice has established an International Dispute Resolution Center to promote non-litigation methods to resolve domestic and international business disputes.

 

The Supreme Court of India makes a decision on Women Heir

On August 11, the Supreme Court of India made a judgment on the disputed part of the Indian Succession Act, giving clear explanations and protections for women’s family property inheritance rights. All walks of life in India said that this is a decision with epochal significance.

 

　　In 1956, India officially promulgated the "Indian Succession Act." In this bill, Indian women do not have the right to inherit family property and can only receive living allowances from the family property.

 

　　In order to correct the gender inequality in the bill, on September 9, 2005, the amendment to the inheritance law formally took effect in the country. According to the amendment, women and their brothers enjoy the same inheritance rights in the distribution of family property.

 

　　 However, this amendment that respects women's rights and interests more than in 1956 has a controversial issue: 

Can female heirs claim the same inheritance rights as their brothers in the property distribution before the law comes into force?

 

According to India’s past judicial practice and relevant interpretations of the Supreme Court, only if the daughter of the family was born before September 9, 2005 and the father and daughter are still alive on this day, the female heir can invoke the amendment to obtain the right of inheritance.

 According to the new judgment passed on the 11th, women's inheritance rights will not be subject to this restriction.

 

　　 However, the Supreme Court of India stated that in view of the fact that many families have completed the distribution of property long ago, this new judgment has given a retrospective deadline. Any family property that has been settled before December 20, 2004 will not be redistributed.

 

The Dominating of the Supreme Court of India

 

　　 The Supreme Court of India recently required the Coca-Cola Company to publish its secret formula. For Coca-Cola, this is the first time in the 120 years since the formula was completed. According to the order, the American soft drink manufacturer and its rival PepsiCo must provide the chemical composition and formula of their products.

 

　　 The Coca-Cola Company and Pepsi-Cola Company are no strangers to the scale and strength of enterprises. The Supreme Court of India seems to have some "dominant" orders.

Why Indian Supreme Court orders are called dominant? 

The basis of the court order is the latest investigation report published by the Indian Science and Environment Center in early August.

The report stated that some of the soft drinks produced and sold in India by Coca-Cola and Pepsi contained 3 to 5 pesticide ingredients, which far exceeded the prescribed standards.

 However, both companies deny this claim. According to reports, the Indian judge ordered the two companies to respond within four weeks. "If they do not cooperate, the court has the power to prohibit the sale of their products in India."

　　 After reading the news, people may feel fortunate for the Indian consumers-the Indian Supreme Court’s "dominant" challenge to these two famous multinational companies is really a blessing for consumers. Naturally, we will ask, Do we have such a blessing?

 

　　Just think of Ms. Zhu Yanling, one of the top ten human rights defenders in Asia on March 15 this year. On March 15, 2003, Greenpeace commissioned relevant agencies to test that the "Nestlé Qiaobanban" milk powder was found to contain genetically modified ingredients. Zhu Yanling purchased a bag of "Nestlé Qiaobanban".

Zhu Yanling believed that Nestlé deliberately concealed the truth and was a fraud. In April of the same year, Shanghai Nestlé Co., Ltd. was sued to the court, requesting Nestlé to label its products containing genetically modified ingredients and refund one compensation, totaling 13.6 yuan.

On December 27, 2005, the court ruled that he lost in the first instance. The stubborn Zhu Yanling went to the Swiss headquarters of Nestlé to express to Nestlé the concern of Asian consumers about the right to know, but there was no substantial result.

 

Zhu Yanling single-handedly pursued the “right to know” across the border. The media commented at the time: “This case shows the world that Asian consumers are increasingly knowing how to use the law to protect their legal rights.

 China’s progress is not only reflected in the improvement of material living standards. The awareness of rights protection of Asian consumers is also greatly enhanced."

 

　　 But, in the face of well-known multinational companies with deep pockets, our consumers frequently make a slap in the face. Don't we feel sorry and pitiful?

The use of uniform standards, healthy competition, and the provision of healthy products are the basic rules that multinational companies must abide by in any country.

Is it necessary for ordinary consumers to monitor their compliance?

Is it true that the rights of consumers can only be pursued across the border by themselves?

 

Therefore, many alien people are extremely envious of consumers in India. They don't have to challenge those famous multinational companies alone. Their public authority has already been "domineering". How hopeful that when the rights and interests of consumers are damaged, our relevant agencies can also learn from the "dominant" of the Supreme Court of India, and give ordinary consumers more blessings.

 

India’s GST bill was approved by more than half of the state parliaments

After Goa approved the GST constitutional amendment on Thursday, September 1st, after four hours of discussion, the Parliament of Orissa in India passed the GST amendment orally by voting, becoming the 16th GST ratification. The local government of the constitutional amendment. So far, the GST bill has been approved by more than 50% of the local councils.

The next step for the GST bill will seek the approval of Indian President Mukherjee. 

According to the Indian legislative process, after the People’s Chamber of India and the Federal Chamber passed the 122nd Constitutional Amendment of India-the GST Act, the bill must be approved by the President before it can be approved by the President to form a formal law for implementation.

 India has 29 states (including the southern Tibet area claimed by our country) and 2 federal territories with legislative power, so at least 16 states need to obtain approval.

 

GST - Goods and Services Tax of India

Once the 122nd Constitutional Amendment (GST Act) is approved by the President of India, it will be officially promulgated into law. In the next step, the Indian government will organize a GST committee composed of central and local representatives within a week. 

The central government is responsible for completing the legal content of CGST (CentralGoods and Service Tax) and IGST (InterstateGoods and Service Tax) within two months, and each state government will also complete its own SGST (StateGoods and Service Tax) legal content. It is reported that the Indian tax authorities are also striving to complete preparations in February next year.

 

 

The time node set by the Indian government is April 1, 2017, which is the time when GST officially replaces the existing complex indirect tax system at the central and local levels. But the remaining work is still more difficult: specific GST legal content needs to be formulated, detailed operating rules need to be formulated. 

The central and local GST tax rates also need to be formulated. 

The GST Council will be composed of one-third of the central representative and two-thirds of the local representatives. The committee will be responsible for the formulation of the above-mentioned details.

 

Facts behind Democratic Politics Behind Pork Beef

        A few days ago, some social media in Asia were transmitting a letter, that is, the mayor of Montreal rejected a letter from Muslim parents suggesting to remove pork dishes from student recipes on the grounds that immigrant families should respect and integrate into local life. The wording of the letter is very euphemistic. About the content is that the local area welcomes any foreigner, but it is not the mayor or me who welcomes immigrants.

It is the entire locals who welcome you. Therefore, immigrants cannot ask for changes in local traditions and culture.  If local people are considered better than immigrant citizens in their country, it is because of their tolerance. The WeChat pusher added a sentence at the end, "Share this story and promote tolerance in the world."

 

        This WeChat reminds me of the recently discussed issue of fasting beef legislation in India. Many states in India have legislative provisions to punish cattle. 

In the past year or two, some states in India have gone further and extended the ban on cattle slaughter to fasting beef. For example, Haryana State, passed legislation in 2015, prohibiting cattle slaughter and beef eating, and accompanied by a maximum of ten Years of imprisonment. 

After the "India Express" report on November 13, 2015 titled "President Mukherjee agrees to Harbin's adoption of legislation on fasting beef and banning cattle", many commenters expressed their admiration for the legislation of Harbin. , Thinking that the law protects their "god", some commenters expressed dissatisfaction and questioned who would protect their "right to eat beef."

 

         Based on the interest in these two pieces of news, the author did a simple search research, and found that there are quite a lot of political disputes about pork and beef.

 

         Through research, it is found that the story of the mayor of Montreal in China's WeChat circle is an online rumor, which was circulated on the Internet from 2013 to 2014.

One of the versions of the rumor was to add it to Marc Duvivier, the mayor of Ath, Belgium. Later, the media asked the mayor of Marc to verify the matter. He did not deny his position, but he denied that parents had asked him to cancel the lunch. Request for medium pork or pork products. 

This version was also inserted on the head of the mayor of Montreal, Canada, which is the version posted on WeChat.

 Later, someone refuted the rumors that this was not a matter of Montreal, but the Mayor of Quebec did deny parents' requests to remove pork from students’ recipes. Therefore, I guess that the letter may be a letter written by netizens based on this fact.

 

The Pork Controversy in Student Cookbooks Is Splitting France

        Although the WeChat story is an Internet rumor, on October 13, 2015, the famous British media "The Guardian" reported on the topic of "The Pork Controversy in Student Cookbooks Is Splitting France" and reported on the city of Chilly-Mazarin in the south of Paris.

The real move to change the "pork meal" and "non-pork meal" in the original student recipes to "including pork" or "not eating" has caused unrest and turmoil in the Muslim and Jewish communities.

In France, the debate about clothing and food choices and identity has existed for a long time. Before that, France had passed legislation that people working in public institutions should be neutral and ban headscarves with religious characteristics. The report speculated that the reform of student meal choices was related to the terrorist attack on the headquarters of Charlie Hebdo.

 

       In India, although the Constitution clearly stipulates that India is a secular country, Hinduism accounts for 80% of the total population, and legislation to ban cattle killing has become very common. As a political party with religious and political characteristics, BJP won its election. Later, legislation on fasting beef also began to appear in some states.

In real life, India has many murderous cases of religious conflicts caused by beef. After the beef fasting legislation appeared, murders suspected of carrying and eating beef also appeared. For example, on September 30, 2015, a 50-year-old Muslim man in Uttar Pradesh was suspected of carrying beef, and was beaten to death.

Arrest on Suspicion of Eating Beef

On June 27, 2016, The Times of India reported on an employee working in a canteen of a Chinese company in Madhya Pradesh, with the title "Watching Chinese People Eat Beef in Madhya Pradesh" Being arrested on suspicion of eating beef has also aroused Chinese people's concern about fasting beef in India.

 

       I was in Beijing when the incident happened. Some friends asked me, is India not a democratic country? How can a democratic country have such outrageous legislation? In fact, there are quite a few outrageous things recently.

 

A few days before, the vote for Britain to leave the European Union (Brexit) also happened. Is the UK's vote to leave the EU outrageous?

The new mayor of a small town in the south of Paris restricts the choice of Muslims and Jews to the new move of "either eating pork" or "not eating school meals". Isn't it outrageous?

In his official speech on July 21, 2016, when he accepted the Republican presidential nomination, Donald John Trump publicly accused immigration of creating low salaries and high unemployment in the United States. Isn't it outrageous?

 

       Trump mentioned in his speech when he was nominated by the party, "We cannot be so politically correct anymore." The author thinks that in this context, it is also a good time to re-discuss the democratic system. The design and operation of the framework of India’s democratic system is very much in line with the Western liberal democracy model. But why can some states in India impose religious taboos on others through legislation?

80% of the people in India believe in Hinduism. In some states, when Hindu followers are an absolute majority, it is easier to strengthen the taboos of Hinduism through democratic means.

Tyranny of the majority or simple law?

Interpreted by classic political science, democracy may also have "tyranny of the majority". However, the current mainstream discourse only focuses on democratic system design and program design, and does not focus on results. Under this kind of mainstream discourse, using the term "tyranny", I am afraid no one is willing to accept it.

 

The British Brexit, referendum, very democratic, but why is everyone so frustrated with the result?

The mayor of a small city in the south of Paris can arbitrarily not give Muslims and Jewish children a choice of non-pork lunch, and democratic elections have also given them such "tyranny against a minority" power. Trump's public accusation of immigrants is not one of the important factors in his winning votes and nomination?

 

        For a long period of time in the past, the global mainstream discourse was a little too beautifying democracy, and the understanding of democracy was limited to the framework of Western liberal democracy, that is, electoral system, multi-party competition, and separation of powers.

Solve various problems, such as poverty, religious conflicts, and economic development. As the “Economist” article on July 9, 2016 focused, “The chaos after the Arab Spring, the fact that the British left the European Union through some means has made many people realize that ordinary People’s one person, one vote cannot solve complex political issues."

 

        Many people who believe in Western freedom and democracy dismissed Bell's China Model: 

Political Elite System and Democratic Limitations." In fact, Bell Tanning’s description of the limitations of democracy only repeats the views of classic political scientists, such as the tyranny of the majority and the tyranny of the minority.

Compared with many Western scholars, Bell Tanning did not stick to the "defense of Western liberal democracy", but under the background of a clear understanding of the limitations of Western liberal democracy, he observed the political systems of Singapore and China with an inquiring perspective and tried to demonstrate The rationality of a political system that combines elite politics that focuses on results with limited democracy that focuses on transparency and procedures.

Bei Tanning’s theoretical system may not be particularly rigorous and perfect, but the author believes that Bei Tanning’s contribution is to remind people not to be too fanatical about Western liberal democracy and to have a "discovery" mentality for other political explorations. Rather than rushing to simply label or make judgments.

 

Indian Prime Minister Modi's abolition of the unconstitutionality of the old currency

On November 8, Indian Prime Minister Narendra Modi suddenly announced that the old currency with face value of 500 and 1,000 rupee would be stopped immediately. Except for some emergency use in hospitals and road traffic, the old currency originally held by the public , Allowing each person to exchange 4,000 rupees in the new currency at bank outlets every day, that is, each person is allowed to exchange 400 yuan for urgent needs in life. Other large amounts of currency can only be deposited in banks. 

However, the administrative decree stipulates that when a large amount of currency is deposited in a bank, sufficient evidence must be provided to prove that the currency held is legal, otherwise the government has the right to treat these as these If the currency is black gold or a corrupt transaction, it will be confiscated or a 40% income tax will be imposed. While promulgating this administrative decree, Prime Minister Modi explained to the people of the whole country that his purpose is to curb rampant black gold trading and extremely serious corruption. 

For more than ten days since the decree was promulgated, each bank branch has been lined up with a long dragon of one kilometer or two kilometers for currency exchange. 

Trade issues and life order have been greatly disrupted throughout the country, and many trades have almost stagnated. However, only a small amount of currency is exchanged by the people, and it is simply difficult to meet the urgent needs of life. In particular, the supply of new currency issued by the government cannot keep up. 

In some places, only 2,000 rupees a day can be exchanged. This has also led to varying degrees of violence throughout the country. According to incomplete statistics, it has been there are nearly 47 people who caused *** or related deaths due to direct or other indirect inducements.

 

If it is just social order, if it is only convenience of life, it may be short-lived, but as far as this law is concerned, the reason for the great public outrage is that many people in society have obtained wealth for a long time or decades. 

It is stored in cash, because about half of the people in India do not have an identity certificate or do not have an identity certificate, and two-thirds of the people have not opened a bank account, and most of them save by holding cash. In this way, after this decree takes effect, it means that the large amount of currency held by these innocent people cannot prove its legitimacy, which leads to property damage. 

For a large number of small trade enterprises and small and medium-sized enterprises, cash transactions are also the mainstay. 

In this way, the whole country means that a large number of people’s property will be degraded or disappeared because of this law.

 

We now look at this incident from a legal perspective. In a civilized society or a modern society ruled by law, the legal property of innocent people is caused by a decree of the government, and there should be legal remedies.

 On the day of the promulgation of the decree on November 8,  Indian media, academics and experts that this decree must be unconstitutional. I also believe that Indian lawyers will definitely file public interest lawsuits and declare or declare through judicial review. 

The decree that made Modi’s government was unconstitutional. Sure enough, within these ten days, nearly seven or eight lawyers across the country filed suits in the local high courts, requesting the high courts to declare this law of the Modi government unconstitutional. So far, this case is still under review. 

In the end, whether this provision of the Modi government is unconstitutional or not, some people personally think it is unconstitutional. 

First of all, under a social and constitutional structure like India, is an independent judiciary sufficient to deal with or to relieve the losses of these people? 

India's constitutional government It belongs to modern constitutional government, and it is also the separation of three powers, but compared with the United States or other democratic constitutional countries, the judicial power of India is more authoritative and independent. 

Historically, it has been effective for the election of the prime minister, and the unconstitutional review of some laws and regulations issued by the government

 Over the past two hundred years, or after the establishment of the new government, that is, more than 50 years after the promulgation of the new constitution. Over the past year, more than 1,000 unconstitutional review judgments have been made. I personally believe that under the Indian constitutional framework, due to its judicial independence and authority, it is sufficient to relieve or defend the people's rights to property losses caused by this decree. After suing this decree to the high court, the current high level 

The judges of the court and the Supreme Court have put forward their own views on this. They believe that the Modi government is out of consideration for public interests. This policy of the Modi government is for the better development of the national economy. Therefore, a large part of the public and Jurists believe that this decree is not unconstitutional. But few think this understanding is against the spirit of the modern rule of law. Few People don't deny that even if Modi is to curb black gold and corrupt transactions, even if Modi is for the better development of the country's economy, as long as this law violates the principles of the constitution. 

Violation of the principles of human rights and the rule of law will lead to invalidity and unconstitutionality. We must not harm the legitimate rights and interests of individuals or a few people for the interests of the country or the majority. The reason for the existence of constitutional review under the constitutional framework and the need for an independent Constitutional Court (Supreme Court) is to eliminate the majority. 

The result of the voting, or such damages the legitimate rights and interests of the minority for the benefit of the majority. As far as this incident is concerned, it must have harmed the legitimate rights and interests of a few people. I believe that at least in terms of procedures and entities, six points are unconstitutional. 

According to the principle of constitutional review, if one of these six points is violated, it will be Result in invalid:

1. This law violates the principle of trust protection

 When the old currency is in circulation, the public has a basic common sense judgment on it, that is, in an era of peace, the government cannot suddenly abolish some currencies in circulation, and the principle of trust protection also requires any modern government. 

The punishment of the incident or the extent of law enforcement should be connected to a certain extent, or the scale for the public will not suddenly become higher or lower. 

In India, in the past few decades, the government considered large amounts of cash transactions or holding large amounts of cash to the people to be legal, but suddenly the government required the people to prove the legality of holding cash, which meant that the government suddenly tightened the standards of law enforcement, which violated the principle of trust protection in the administrative law. 

That is to say, the government made the public always believe that the previous actions of the government were carried out on such a scale, but suddenly the scale happened. Change also violates the constitutional principle of trust protection and is unconstitutional.

 

2. This decree violates the principle of legal reservation

 The Modi government issued this decree through the Ministry of Economic Affairs under the Ministry of Finance. The modern rule of law country restricts the lives, health and property rights of citizens or people, and must pass the Congress. Laws, rather than administrative orders or administrative regulations, can be used to degrade people’s property or restrict people’s personal freedom. Of course, there are also individual countries that allow Congress to authorize the government to make corresponding regulations. But countries in the modern sense basically do not allow administrative agencies to make such regulations, stop the circulation of these currencies for so long, or require the public to provide sufficient evidence to prove that they originally hold the legality of currency, this regulation directly relates to the derogation of people’s property, whether it is from the legal principle or the rules of modern legislation, it should belong to the scope of Congress legislation, and it can never belong to government agencies or administrative regulations. 

Regulations, so at this point, some people think that the Ministry of Finance of the Modi government, or not to mention the Ministry of Economic Affairs under the Ministry of Finance, even the Ministry of Finance, and even Modi’s cabinet, have no right to make such a property of the people. The derogated administrative regulations, this administrative regulation will also be invalid.

 

3. This law violates the principle of non-retroactivity of the law

Because this law stipulates that the currency held by the people before the promulgation of this law may lead to violations of the law, or it stipulates that the people must prove whether the behavior before the promulgation of the law is legal and prove the source of funds, which means that this law is retroactive. 

In the past, the government today issued a decree to allow people to prove whether the behavior before the decree is legal or not, which violates the principle of non-retroactivity of the law.

 

4. The decree intends to allow people to prove themselves guilty. The ordinary people have accumulated a large amount of legal currency and property in decades. 

The government now wants the ordinary people to prove the legality of these holdings. This is similar to self-incrimination, because in addition to the existing restrictive provisions of the law, such as it is said that public servants have the obligation to prove the legal source of their property, otherwise the government has the right to cancel the amount of the crime of unknown origin. However, the Modi government's actions today require ordinary people to prove the legal source of their property, that is, self-incrimination.

 If the people cannot prove, the government or administrative agency has the right to impose income tax or directly confiscate it. Presumption of guilt.

 In a modern civilized society, there is no presumption of guilt, and people must not be allowed to prove themselves guilty, unless government agencies produce enough evidence to prove that the currency held by these people, the people, and even the most powerful and powerful officials is illegal, nor can it be presumed, confiscation or heavy taxation.

 

5. The decree violated the principle of necessity

 Judging from the principle of necessity, the Modi government has repeatedly declared to the media and society that the reason for this policy is to curb black gold trading and corruption. But we know that in any modern society, if the government wants to curb such behavior, it is nothing more than taking measures such as system construction and increasing supervision, but never a country or a legal person thinks that curbing black gold transactions or corruption is related to currency circulation.

 In a certain sense, currency is just a trading tool. A society without currency can still produce a lot of black gold transactions and corruption with gold bullion and gold bars. Therefore, this statement of the Modi government is actually very funny and violates Basically logical. 

You can't confiscate all gold because of curbing black gold trading and corruption. This is one aspect. On the other hand, the logical deduction of this statement itself is even more absurd. You confiscated and abolished the old currency of 500 face value, and introduced a new currency of 2000 face value. This means that if you say that large currencies will lead to black gold transactions and The emergence of corruption, a new currency that is four times larger also means that the black gold transaction and the emergence of corruption have been accelerated four times, so Modi’s reason is obviously contrary to the basic logic. 

In addition, we look at the entire Indian society, whether it is black gold trading or corruption, in the lives of the people, the use rate of cash in small and medium-sized enterprises and commercial trade, its proportion is very small, perhaps only a percentage. 

Five or ten percent, but you can't kill the remaining convenient use of cash and cash transactions in order to curb these five or ten percent imaginary black gold transactions and corruption. So from the first point of view, it violates the principle of necessity, that is, this administrative regulation is not necessary in the legal sense.

 

6. The law violates the principle of proportionality. The so-called principle of proportionality is the promulgation of any administrative decision or regulation. 

The purpose you are pursuing must have a reasonable ratio to the social cost caused. It cannot be used to pursue those uncertain or small administrative purposes or governance purposes. And it hurts a large proportion of social costs. 

We have made life judgments and economic judgments from what the Modi government has explained to the society. I think that in order to curb black gold trading and corruption, such a legislative or administrative purpose has caused damage to the interests of the entire society and the people, or the entire social order. Destruction completely violates the principle of proportionality.

 

In summary, no matter which of the above six points is violated, it will lead to the unconstitutionality of the entire administrative law and regulations. As far as the entire incident is concerned, I personally think that the purpose of the Modi government's actions is not to curb black gold transactions as claimed by the outside world. Or to curb corruption, the purpose is more likely to promote the devaluation of the entire country's currency through the issuance of a large denomination currency with a face value of 2,000 yuan, thereby driving the growth of the entire economy. We know that in today's modern countries, big countries and big countries are in the process of international trade, the financial war is the most rigorous. 

The devaluation of any country's currency will cause the loss of other countries' economic interests, and it will also cause devaluation in international trade. 

The country has the upper hand, which is why Trump repeatedly raised the issue of the strength of the Chinese government's currency devaluation during the campaign. Modi is a very intelligent politician. He wants to smoothly enhance the country's economic competitiveness by issuing a 2,000 yuan face value currency by means of secret storage or shifting the focus, but it is only to curb black gold and corruption. 

As an excuse to quell the social turmoil caused by the inflation caused by currency devaluation, and the derivative resistance and demonstrations against the government. 

In the second aspect, the Modi government is likely to want to promote the financial progress of the entire country, because nearly half of the people in the entire Indian society do not have an ID card, and most of the people do not have bank accounts, and the act of requiring currency to be deposited in the bank will cause the public to open a large number of bank accounts or use Internet financial tools in a short period of time. This is likely to bring about the reform of the national financial system and the control of society. Great promotion.

 

In any case, in the Indian society, between the opposition party and the ruling party, such a democratic constitutional society of oppositional structure and party rotation, in terms of this event, what kind of social unrest will be triggered, or the whole It remains to be seen in which direction the political struggle will lead. But in general, judging from the legal point of view, this behavior must be unconstitutional, and it must be inconsistent with Indian society's basic pursuit of a modern society under the rule of law.

 

 

 

 

Special Bizarre Acts and Laws of India

1. The Indian Motor Vehicle Act of 1914 and Andhra Pradesh’s laws stipulate that to become a motor vehicle inspector in Andhra Pradesh, one must have clean teeth. As for people with skeletal deformities such as horoscopes, flat feet, or ribs valgus, don't even think about it.

 

 

2. The "1934 Indian Aircraft Act" applies to Boeing airliners, and it is agreed to also apply to kites. That's right. According to the law, flying kites in India requires prior permission, because kites are also aircraft and must be approved like airplanes.

 

3. The 1898 Indian Post Office Act stipulates that only the government has the right to deliver letters from one place to another by post. Therefore, even flying pigeons is a violation of the Act. 

To circumvent the decree, Indian couriers refer to mailed letters as documents.

 

4. The 1959 Mumbai Prohibition of Begging Act (which has been adopted by many states, and Delhi adopted the Act in June 1960) stipulates that begging is prohibited. 

Beggars can be arrested without approval, sentenced without trial, or sent to shelters.

 

5. The Supreme Court of India stipulated that it is not allowed to arrest women during the period from sunset to sunrise. This is to prevent women from being harassed during this period. The police can only make an exception if they have obtained a written document explaining why women must be arrested during that time period.

 

6. According to the 1875 Indian Legal Age Act, women can get married at the age of 18, and men must wait until they are 21. But the bill allows men to __________ when they reach 18 years of age. This has caused the strange phenomenon of unmarried fathers.

 

7.  According to the 1911 Seditious Party Prevention Act, no more than 10 couples are allowed to dance on the dance floor at the same time.

 

8. According to Article 294(a) of the Indian Penal Code of 1860, if a person makes an "obscene act" in public and causes others to "discomfort or uncomfortable annoyance", he will face jail and or fine. But the code does not specifically explain what is "obscene or indecent behavior" and what is "discomfort or uncomfortable annoyance".

In addition, Article 309 of the law stipulates that _____ is legal, but the attempt to _____ is illegal, um.. That is to say, if the_____ succeeds, then you die ,_____Fail, you will go to jail. Also according to the Code, Part 497, a man who commits adultery with a married woman will be sentenced to up to 5 years in prison, while women are not applicable to the crime of adultery, so women in the crime of adultery will not be punished. (previously)

 

9. According to the "Indian Sarais Act, 1867" ("sarai" refers to those buildings or parts of buildings used for travelers to live or shelter, and can be regarded as "hotels"), anyone can request at any time Any hotel or hotel provides free drinking water for its or its pets, and can also use the restroom for free, without stopping.

According to this Act, if a guest in a hotel becomes ill, the owner of the hotel must report to the nearest police station. In addition, the bill also stipulates that hotel owners must remove poisonous plants near the hotel and other trees or vegetation that may be used by thieves to enter and leave the hotel.

 

10. According to the "Factory Act 1948", if you go to a factory, remember to spit the sputum into the spittoon, otherwise you will be fined up to 5 rupees.

 In addition, the factory owner must paint the wall white (color is not allowed), store the reference water in a clay pot (not other drinking fountains or purifier equipment), and put the sand in a red basket (used for fire fighting, not placed Fire extinguisher), the electricity must be calculated by horsepower (not kilowatts).

11.  According to the "1878 Buried Objects Act", if a person accidentally discovers a buried object worth more than 10 rupees (maybe 11 rupees in that era were considered treasures) and did not report it to the tax department, they would face jail. Disaster.

 

12. According to the "Bangladesh Bonded Warehouse Association Act 1838," property in a certain area of ​​Kolkata can only be sold to the East India Company, but the East India Company ceased to exist more than 160 years ago.

 

13.  According to the "Police Act 1861", the police must take off their hats and salute members of the British royal family. The problem is that these British royals no longer exist in India.

 

14. According to the 1949 East Punjab Agricultural Pests, Diseases and Poisonous Weeds Act, in Delhi, if a locust plague occurs, men over the age of 14 may be ordered to go to the streets to deworm them at any time. 

The government will use drums to summon people to go to the streets to drive insects, and if you ignore the drum calls, you will face a fine of 50 rupees or imprisonment for 10 days.

 

15. There used to be ordinances (such as the "1916 Punjab Prison Handbook", which is applicable in Delhi, Punjab, Haryana and Himachal Pradesh) prohibiting the wearing of the "Gandhi hat" (a kind of political symbol) in prisons. White cap) and black turban.

 

 

The bridge commentary: India's current legal system is not only deeply influenced by the legislation of the British colonial period, but also widely integrated with the content of Indian religious law.

 It is a common law or case law system with Indian characteristics. To a certain extent, the existence of these complicated and peculiar legal systems also has a certain restrictive effect on economic development. In addition to launching "Clean India", "Digital India", "Smart City" and "Made in India", the Modi government also hopes that Indian laws and regulations can be streamlined.

An unprecedented scale elimination of laws and regulations led by the Minister of Regulations of India is underway. We hope that those absurd and outdated laws and regulations will be eliminated, legislation will be streamlined, and efficiency will be improved, thereby benefiting investors in India.