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CS Executive JIGL – Constitution Of India

Writ jurisdiction

Under Article 226 of the Constitution, the High Court has the power to issue not only writs of certiorari, prohibition and mandamus, but also other writs, directions and orders.

The Indian High Court has jurisdiction to issue necessary directions and orders to ensure justice and equity. Moreover, this right is not restricted, but spreads to administrative action and judicial or quasi-judicial action also.

When the Supreme Court issues writs under Article 32 of the Constitution, they are mainly for the enforcement of fundamental rights mentioned in the Constitution itself.

The Writ of Prohibition

The writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction. It is issued by a superior court to inferior courts from usurping a jurisdiction which is not legally vested in it, or in other words to compel inferior courts to keep within the limits of their jurisdiction.

Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction (S. Govind Menon vs. union of India, AIR 1967 SC 1274 The writ can be issued only when the proceedings are pending in a court. It can be issued only against a judicial or legislative functionary, not administrative.

The Writ of Mandamus

On the other hand, the writ of Mandamus, meaning “we command”, is a constitutional remedy provided by the Constitution of India, against holders of public offices or against those performing public duties, to order them to perform their duties.

It can be issued to both individuals and organizations, and ensures judicial backing to the person who needs to get a public duty done.

The Writ of Habeas Corpus

It is passed to ensure that a person who is confined without a legal cause being given gets justice. This writ orders the authority confining the person to give proper reasons for doing so.

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Colourable legislation

The doctrine of colourable legislation is relevant only in connection with the question of legislative competency. Objections based on colourable legislation have relevance only in situations when the power is restricted to particular topics, and an attempt is made to escape legal fetters imposed on its powers by resorting to forms of legislation calculated to mask the real subject matter.

Federal system

A federal system is one where the powers and duties are divided between a unified central authority and the different states of the nation. Items of national importance like defence, railways, post and telegraph, foreign affairs, citizenship etc. are included in the Union list and items of regional or local importance like agriculture, law and order, health etc are placed in the state list.

Unitary system

A unitary system is one where the powers and functions are centralized. In India, this happens in times of emergencies, when the Union can make rules in relation to state matters too.

State

The definition of ‘State’ has been included in Article 12 of the Constitution of India. It includes not only entities termed as ‘state’ but also those termed as ‘state instrumentalities’. It includes the government and the parliament of the nation and of every state, local and other authorities like the municipalities, district boards, and any other instrumentality of state, including corporations, government departments and state monopolies.

Delegated legislation

Delegated legislation includes in its folds that part of the power of the legislatures that they could exercise, but which has been delegated because of paucity of time and overloading of work. This leads to better functionality and saving of time.

Conditional legislation

That which is bound by the conditions prescribed, following which the statute comes into play.

Subordinate legislation

This type is subordinate to the supreme legislation.

Supplementary legislation

This is in addition to the main legislation; it only adds to the main one.

Classification

Classification means segregating people into groups according to a commonly identified feature, viz income, geographical location, gender, etc. so that their special needs can better be catered to and their legal rights ensured.

By itself, classification is not against the Constitution. Rather, it helps in upholding the principle of equality. In doing so, even if the class has a single individual in it, it will still be a valid class.

The Doctrine of Severability

This Doctrine is contained in Article 13 of the Constitution of India. According to this doctrine, the part of a statute which is not compatible with the fundamental rights provided for in the Constitution will be severed and declared invalid.

This helps to maintain both constitutionality and saves the statutes from being struck down completely. The rest of the act that is allowed to exist can operate separately.

Preventive detention

‘Preventive detention’ implies the detention of a person without trial in cases where the evidence before the authority is not enough to make out a fully drawn legal charge or to secure the conviction of the detenue by legal proof, but is sufficient enough to justify his detention.

Doctrine of pith and substance

Applying the pith and substance rule, we have to reach to the core of the act, i.e., try to learn what the act endeavour to legislate in the first place. If that is valid, then the act upholds and is allowed to be functional.

Law

As per Article 13

Doctrine of eclipse

The Doctrine of Eclipse is a part of Article 13 of the Constitution of India. It helps in empowering the fundamental rights.

According to this doctrine, if there is any act prevailing from before the pre-Constitution days, and it contains something that is against the Constitution, the act will not become redundant, but will be eclipsed or become dormant to that extent till the Constitution is amended so it can be operative again.

This saves parliamentary laws from being scrapped and remade, and whenever such eclipse is removed, the law is operative again from the date of such removal.

Doctrine of waiver of rights

The doctrine of waiver of rights is based on the premise that a person is his best judge and that he has the liberty to waive the enjoyment of such rights as are conferred on him by the State.

However, the person must have the knowledge of his rights and that the waiver should be voluntary. The doctrine was discussed in Basheshar Nath v. I.T.

Commissioner, A.I.R. 1959 S.C. 149, where the majority expressed its view against the waiver of fundamental rights.

It was held that it was not open to citizens to waive any of fundamental rights. Any person aggrieved by the consequence of the exercise of any discriminatory power, could be heard to complain against it.

Single person law

Even if a class has a single person constituting it, it is not invalid. A law may be constitutional, even though it relates to a single individual, if that single individual is treated as a class by himself on some peculiar circumstances. (Charanjit Lal Chowdhary v. Union of India)

Legislative Classification

A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of the same laws for all. It is here that the doctrine of classification steps in and gives content and significance to the guarantee of the equal protection of the laws.

To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between the persons who are and who are not similarly situated.

Reasonable restrictions

Article 19 of the Constitution of India guaranteed to the citizens the following six freedoms:

•  Freedom of speech and expression.
• Freedom of assemble peaceably and without arms.
• Freedom of associations and unions.
• Freedom to move freely throughout the territory of India. d (
• Freedom to reside and settle in any part of the territory of India.
• Freedom to practice any profession, or to carry on any occupation, trade or business.

Restrictions: These freedoms are not absolute and are subject to reasonable restrictions. The State has the power, to make laws imposing reasonable restrictions on the exercise of the above rights in the interest of the following:

• The sovereignty and integrity of India.
• The security of the State.
• Friendly relations with foreign States.
• Public order.
• Decency or morality.
• Contempt of court.
• Defamation.
• Incitement to an offence.
• Prescribing professional and technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.

Double jeopardy

Jeopardy means punishment. Article 20(2) of Constitution of India incorporates prohibition against double jeopardy. The object of this provision is to avoid the harassment which must be caused to a person for successive criminal proceedings where only one crime has been committed.

Protection against ex-post facto laws

According to Article 20(1), no one shall be convicted of any offence except for violation of a law that made the act committed an offence. Nor can a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence be charged for the offence.

Ex-post facto laws

These are laws which punish what had been lawful when done. The Constitution protects anyone who had committed an act earlier when the act was not punishable from being punished with retrospective effect.

If a particular act was not an offence according to the law at the time when the person did that act, then he cannot be convicted under a law which with retrospective declares that act as an offence.

For example, something done in 2000 which was not an offence then under any law cannot be declared as an offence under a law made in 2018 giving retrospective validity and adding applicability to it from a back date, say from 2000.

Similarly, the penalties for an offence too, cannot be enhanced with retrospective effect, so as to bring more punishment to bear upon someone who had committed an act against that law.

CS Executive JIGL – Constitution Of India Short Notes

Question 1: Write a short note on writ of ‘Quo Warranto’.
Answer:

The writ of Quo Warranto enables enquiry into the legality of the claim which a person asserts, to an office or franchise and to oust him from such position if he is a usurper. The holder of the office has to show to the court under what authority he holds the office. It is issued when:

• the office is public and of a substantive nature,
• created by statute or by the Constitution itself, and
• the respondent has asserted his claim to the office. It can be issued even though he has not assumed the charge of the office.

The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. It is a discretionary remedy which the court may grant or refuse. Space to write important points for revision

CS Executive JIGL – Constitution Of India Distinguish Between

Question 2: Distinguish between the following:

‘Writ of prohibition’ and ‘writ of mandamus.’

Answer:

CS Executive JIGL – Constitution Of India Descriptive Questions

Question:

1. What is the scope of Article 14 of the Constitution of India? To what extent is it correct to say that Article 14 forbids class legislation, but does not forbid classification? 
2. Discuss the fundamental duties imposed on citizens of India.

Answer :

1. This Article 14 of the Constitution of India is about equality before law. This article envisages equality between equals, i.e., those equal in the eyes of law have to be treated equally. A direct corollary of this article is that it is not possible to have different rules for people belonging to the same class.

Therefore, it is possible to have classification but not class legislation under the Constitution of India. Classification would be valid if it fulfils the following tests

• There should be valid factors distinguishing one group from another, while making rules for one group and not for another.
• The differences should be created to achieve some objective enshrined in the act.
• There should be valid bases for classification..

Even if a class has a single person constituting it, it is not invalid. Moreover, the person who says that a classification is invalid has to prove so.

This right is enshrined in Article 14 under Right of Equality as provided In the Constitution of India. The equality before law implies equal protection of the laws and that all persons are equal in the eyes of the law; if two persons are similar as far as their situation is concerned; they will be treated as equal in law.

‘Equal protection of the laws’ implies that all persons who are equal in the eyes of the law will receive same treatment. This article involves the use of classification for the purpose of better-providing equality.

Classification means segregating people into groups according to a commonly identified feature, viz income, geographical location, gender, etc. so that their special needs can better be catered to and their legal rights ensured.

By itself, classification is not against the Constitution. Rather, it helps in upholding the principle of equality. In doing so, even if the class has a single individual in it, it will still be a valid class.

For example, if the Constitution foresees the segregation of backward classes, the desire here is to better accommodate their needs; this is discrimination in favour, not discrimination against anyone.

This in itself means that discrimination in order to make the conditions of a class better is allowed, because this in itself upholds the very foundations of the Constitution and is hence allowed.

2. The 42nd Amendment Act passed in 1976 added the Fundamental Duties of citizens to the Constitution. They are given in Article 51-A of the constitution.

They include the addition made by the 86th constitutional amendment in 2002, which enjoins every citizen, “who is a parent or guardian, to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years”.

These are treated like moral obligations of the citizens of India. The important features of Fundamental Duties are

• They are non-justiciable.
• They cover both citizens and the State.
• They ensure equality of individuals.

They help in maintaining the environment and public property, to develop “scientific temper”, to abjure violence, to strive towards excellence and to provide free and compulsory education.

They develop respect towards the nation and its symbols, and to cherish the heritage and secure the defence of India.

The basic Fundamental Duties are –

To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. To cherish and follow the noble ideals which inspired our national
struggle for freedom.

To uphold and protect the sovereignty, unity and integrity of India. To defend the country and render national service when called upon to do so.

To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.

To value and preserve the rich heritage of our composite culture.

To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

To develop the scientific temper, humanism and the spirit of inquiry and reform.

To safeguard public property and to abjure violence.

To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.

It has to be kept in mind, however, that the Fundamental Duties are not enforceable by writs; their fulfilment can only be ensured by educating the citizens as to their necessity and importance.

Question:

1. Creation of monopoly rights in favour of a person or body of persons to carry on any business prima facie affects the freedom of trade. Can the State create a monopoly in favour of itself? Answer citing case law, if any.
2. Describe in brief the powers of Parliament to make laws on the subjects ( enumerated in the State List. (6 marks)
3. The true place of a preamble in a statute was at one time the subject of conflicting decisions. Is such an opinion still prevailing? Discuss, citing case law. (6 marks)
Answer:
1. Freedom of trade and profession is provided under Article 19 (1) (g) of the Constitution of India. This gives the citizens the right to pursue any trade, profession, business or occupation in any place within India. This right is, however, not absolute. It can be restricted by the State in the following cases

• When the State feels it is essential to do so in the public interest.
• When it is felt that there should be some basic qualifications for any occupation or profession, it can provide so.
• When the State feels that it needs to establish control in some area of trade, occupation or business, so that it can be better tended.

These restrictions shall be considered valid when the conditions of the trade or business restricted at that time justify them, for example, for keeping the price of essential services down. Hence, the State can take over these rights to any extent-from being one of the participants in that trade to being the only one, provided it is justified in doing so.

On behalf of the State it was argued that Article 19(6) of the Constitution indicated, as in its amended state, that the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business or industry or service, whether to the exclusion, complete or partial, of the citizens or otherwise, was a permissible restriction on an individual’s right of trading.

2. The Parliament can extend the legislative powers given to it by the Constitution to formulate laws under special situations to include certain subjects of the State List. Some of the conditions under which the Parliament may extend its powers include the situations explained below-

In the National Interest (Under Article 249)

Proclamation of Emergency (Article 250) in any state by the President. If two states agree that the Parliament can legally make laws with respect to the two states, then the Parliament can make laws relating to any state or states (Under Article 252) For the implementation of treaties in the international interest of the country (Under Article 253).

Failure of Constitutional Machinery in a State as a result of the inefficiency of a State Legislature, as declared by a proclamation issued by the President (Under Article 356 (1) (b))

Normally both the Union Government and the State Governments operate within the limitations of the powers given to them by the Constitution. They enjoy equal powers to make laws relating to the concurrent list items, which are of general importance such as succession, transfer of property, preventive detention, education, etc.

If there arises a conflict between a law passed by the Union and that passed by one or more State Legislatures, precedence would be given to the law made by the Union Parliament.

However, problem arises when either the Union or a State illegally encroaches upon the powers of the other legislature, or they may arise because the two laws do not coordinate. Only where the legislation is on a matter in the Concurrent List, it becomes important to apply the test of repugnancy and judge which act will apply.

Normally the Union law is given precedence, unless the State has reserved a law for the approval of the President, in which case it will supersede the law made by the Union. However, the Union can at all times cause an alteration or amendment in the law.

3. The preamble of an Act is the introduction or the key to the Act. Although not a part of the Act itself, and so does not perform any legal function, it is a valuable key for understanding the Act and resolving the ambiguities in drafting.

The preamble provides the introduction to the Act and indicates its coverage. Both these views are taken together in comprehending the importance of preambles in interpretation of statutes.

If the statute is clear in itself, the preamble is not resorted to for gaining comprehension; if it is ambiguous or unclear, then the preamble can be used to give a direction to the interpretation.

It thus prescribes an outline to the Act itself, letting the person reading it know what all it includes within its bounds. The preamble specifies the intention behind the making of the act, i.e. what is the mischief that the makers of the act sought to correct.

It can be one of the key starting points when we begin to understand a statute. The next in line is the judgment of the Supreme Court (Girdhari Lal & Sons v. Balbir Nath Mathur) wherein, on the subject of interpretation of Statutes, the Supreme Court had laid down the law as hereunder:

Parliamentary intention may be gathered from several sources. First, of course, it must be gathered from the statute itself, next from the preamble to the statute, next from the Statement of Objects and Reasons, thereafter from parliamentary debates, reports of committees and commissions which preceded the legislation and finally from all legitimate and admissible sources from where there may be light.

Regard must be had to legislative history too. Also, Novartis Ag Represented By It’S … vs Union Of India (Uoi) Through The… on 6 August, 2007. Hamdard Dawakhana (Wakf) Lal… vs Union Of India And Others on 18 December, 1959.

Question: Discuss in brief the doctrine of severability.
Answer:

The Doctrine of Severability: This Doctrine is contained in Article 13 of the Constitution of India. According to this doctrine, the part of a statute which is not compatible with the fundamental rights provided for in the Constitution will be severed and declared invalid.

This helps to maintain both constitutionality and saves the statutes from being struck down completely. The rest of the act that is allowed to exist can operate separately. The only thing to be considered here is whether the leftover portion is enough to still fulfill the objectives of the Act.

This doctrine is a very useful one, used in both contract and common law, as it is useful in saving redundancy of contracts and acts. Under this, Courts construct the meaning of a contract or act by severing the troubling part, if it is severable and only if severability is not possible, the entire act is scrapped (Article 154).

Similarly, the courts have the power to sever an unconstitutional provision in a statute and enforce the remainder of the statute if it can exist without the severed part (Article 155).

This doctrine has been provided to increase the usability of statutory acts and legal contracts, so as to prevent redundancy and to make future use possible. A.K.Gopalan v. State of Madras The Doctrine of Severability.

The Supreme Court ruled that where an Act was partly invalid, if the valid portion was severable from the rest, the valid portion would be maintained, provided that it was sufficient to carry out the purpose of the Act.

Question: Describe the right of minorities to establish and administer educational institutions as enshrined in the Constitution of India.
Answer:

Article 30 of the Constitution of India enshrines minority rights. As per the Constitution, minorities include both religious and linguistic minorities. This Article gives the following rights to minorities:

• Right to setup and run educational institutions.
• Right to be duly compensated in case of compulsory acquisition of property of such minority institutions.
• Right against discrimination by the State in giving aid to educational institutions, on the grounds of an institution being governed by a minority faction. Case: T.M.A. Pai Foundation v. State of Karnataka.

Question: What is meant by ‘preventive detention’? What are the safeguards available against preventive detention?
Answer:

Preventive detention and safeguards against it:

‘Preventive detention’ implies the detention of a person without trial in cases where the evidence before the authority is not enough to make out a fully drawn legal charge or to secure the conviction of the detenue (detained person) by legal proof, but is sufficient enough to justify his detention.

The aim of preventive detention is to check a person from doing something. that the evidence implies that he might do. Hence, this measure operates simply on the basis of suspicion or belief or probability of something that might be done by the detained person.

In order to prevent abuse of power by the authorities under this provision, the framers of the Constitution provided that if the proper process is not followed, the detention will be deemed to be invalid.

According to Article 22 of the Indian Constitution, no person shall be detained in custody without being informed, as early as possible, of the grounds for such arrest. He shall also be assured of the right to consult and to be defended by a legal practitioner of his choosing.

Upon arrest, such a person is to be produced before the nearest magistrate within a period of twenty-four hours of such arrest. This time is exclusive of the time needed for such journey from the place of arrest to the court of magistrate.

A person can be detained in custody beyond the said period only with the permission of the magistrate, and upon sufficient cause being shown. It is not a punitive but a preventive measure.

While the object of the punitive detention is to punish a person for what he has already done, the object of preventive detention is not to punish a man for having done something but intercept him/her before he/she does it and prevent him/her from doing it.

No offence is proved nor any charges is formulated. The sole justification of such detention is suspicion or reasonable probability of the detenue committing some act likely to cause harm to society or endanger the security of the Government, and not criminal conviction which can only be warranted by legal evidence.

Constitutional Safeguards Against Preventive Detention Laws:

Though the Constitution has recognised the necessity of laws as to preventive detention, it has also provided safeguards to mitigate their harshness by placing fetters on legislative power conferred on the Legislature.

The power of preventive detention is acquiesced in by the Constitution as a necessary evil and therefore hedged in by diverse procedural safeguards to minimise as much as possible the danger of its misuse.

It is for the reason that Article 22 has been given a place in the Chapter on “guaranteed rights”. Clauses (4) to (7) guarantee the following safeguards to a person arrested under preventive detention Law:

• review by Advisory Board;
• grounds of Detention and Representation; and
• composition and Procedure of Advisory Board.

Question: Discuss the test laid down by the Supreme Court of India to determine the entity of “State”, whether it is ‘instrumentality or agency.of State’.
Answer:

‘State’ is defined in Article 12 of the Constitution of India. It includes the Central and the State Governments, the Parliament, the various legislatures and legislative assemblies, all local or other authorities that come under the Territory of India or otherwise under the control of the Indian Government.

In the case of Ajay Hasia vs Khalid Mujib, the Supreme Court prescribed the following test for determining whether an entity is an instrumentality or agency of the State:

1. If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government.
2. Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character.
3. Whether the corporation enjoys a monopoly status which is conferred or protected by the State.
4. Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or an instrumentality.
5. If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in classifying a corporation as an instrumentality or agency of government.
6. If a department of government is transferred to a corporation, it would be ( a strong factor supporting an inference of the corporation being an instrumentality or agency of government.”

In Sukhdev Singh vs Bhagatram and R.D. Shetty vs International Airports Authority, the Supreme Court pointed out that corporations acting as State instrumentality or as agencies of government would be considered to be covered within the definition of ‘State’ because they are subjected to the same limitations in the field of constitutional or administrative law as the government itself, though in the eye of law they would be distinct and independent legal entities.

Question: “Article 20 of the Constitution of India guarantees protection against self-incrimination”. Explain briefly.
Answer:

According to Article 20(3),, “no person accused of any offence shall be compelled to be a witness against himself.” It means that no one can be forced to testify against himself or to incriminate himself.

However, this protection is available to the accused only when the following conditions are fulfilled:

1. He must be accused of an offence;
2. He is compelled to be a witness; and
3. Such a compulsion would cause or force him to give evidence against himself.

So, as per the corollary to this rule, if a person is not an accused or is not in the capacity of a witness when he makes the statement or if the statement is made by him without any compulsion of any sort and also does not result in his making a statement against himself, then he cannot avail of the protection afforded by this rule.

Moreover, such protection is available when the person has been formally accused or is examined as a suspect in a criminal case. It also includes within its ambit witnesses who believe that their statements could expose them to criminal charges.

This is true not only for an ongoing investigation, but also if he fears apprehension in cases other than the one being investigated. [Selvi vs State of Karnataka].

Question: What are the restrictions on right to freedom of speech and expression under Article 19 of the Constitution of India?
Answer:

Article 19 of the Constitution of India guaranteed to the citizens the following six freedoms:

• Freedom of speech and expression.
• Freedom of assemble peaceably and without arms.
• Freedom of associations and unions.
• Freedom to move freely throughout the territory of India.
• Freedom to reside and settle in any part of the territory of India.
• Freedom to practice any profession, or to carry on any occupation, trade or business.

Restrictions: These freedoms are not absolute and are subject to reasonable restrictions. The State has the power, to make laws imposing reasonable restrictions on the exercise of the above rights in the interest of the following:

• The Sovereignty and Integrity of India.
• The Security of the State.
• Friendly relations with Foreign States.
• Public order.
• Decency or Morality.
• Contempt of Court.
• Defamation.
• Incitement to an offence.
• Prescribing professional and technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.

Hence, the freedom of speech and of the expression does not bestow an absolute right to express without any responsibility. The restriction to this is placed by Article 19, Clause (2), of the Indian Constitution that enables the legislature to impose reasonable restrictions on free speech to ensure the following:

• Security of the State – actions intended to overthrow the government, waging of war and rebellion against the government, external aggression or war, etc., may be restrained.
• Friendly relations with Foreign States – to stop the friendly relations of India with other States from being jeopardized.
• Public order – for general peace, safety and tranquility.
• Decency and morality to stop obscenity and indecency from spreading.
• Prevention of Contempt of Court – includes both civil contempt or criminal contempt.
• Prevention against defamation reputation of another is to be stopped. any statement that injures the
• Discouraging incitement to commit an offence, and maintaining sovereignty and integrity of India.

This can, however, be done by a duly enacted law and not by mere executive action. The Constitution, hence, allows reasonable restrictions to be placed on the rights of speech and expression.

The Supreme Court in A K Gopalan vs State of Madras, 1950 has also held that Fundamental Rights are not absolute.
Space to write important points for revision

Question: Discuss ‘the procedure established by law’ under Article 21 of the Constitution of India with decided case laws.
Answer:

The main aim of Article 21 is to ensure personal liberty except according to procedure established by law. This implies that if it is an action initiated by the State only then will the right be available.

Hence, this right works to the exclusion of actions initiated by private individuals, in which case the aggrieved would have to take refuge under Article 226 of the constitution or under general law.

However, where the act of a private individual supported by the state infringes the personal liberty or life of another person, the aggrieved will certainly receive the protection of Article 21.

‘State’ includes government departments, legislature, administration, and local authorities exercising statutory powers etc., but it does not include non-statutory or private bodies having no statutory powers.

Therefore, the fundamental right guaranteed under Article 21 relates only to the acts of State or acts under the authority of the State that are not according to procedure established by law.

‘Right to Life’ relates to the dignity of life, and includes all things that add meaning and dignity to the life of an individual. In the case of Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and Others it was said that: Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful.

In another case of Olga Tellis and others vs Bombay Municipal Corporation and others, it was further observed: Just as a malafide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike.

It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform the norms of justice and fair play. Procedure, which is not just or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.

The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan vs State of A.P. and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below:

1. The right to go abroad.
2. The right to privacy.
3. The right against solitary confinement.
4. The right against hand cuffing.
5. The right against delayed execution.
6. The right to shelter.
7. The right against custodial death.
8. The right against public hanging.
9. Doctors assistance.

• A K Gopalan v. State of Madras: Procedure made by law means a procedure enacted by the law of a state.
• Bachan Singh v State of Punjab: The makers of the Constitution recognized that a person can only be deprived of his life or his personal liberty through a just, fair and reasonable procedure that is duly established by law.]

Question: Explain the freedom of association under the Constitution of India. What reasonable restrictions have been imposed on this freedom under Article 19 of the Constitution of India?
Answer:

According to Article of 19(1) (c) of the Constitution of India, all citizens shall have the right to form associations or unions. The freedom of association includes freedom to hold meeting and to takeout processions without arms.

Right to form associations for unions is also guaranteed so that people are free to have the members entertaining similar views. This right is also, however, subject to reasonable restrictions which the State may impose in the interests of:

• The sovereignty and integrity of India, or
• Public order, or
• Morality.

A question not yet free from doubt is whether the fundamental right to form association also conveys the freedom to deny to form an association. In the case of Tikaramji v.

Uttar Pradesh, AIR 1956 SC 676, the Supreme Court observed that assuming the right to form an association “implies a right not to form an association, it does not follow that the negative right must also be regarded as a fundamental right”.

Question: Article 14 of the Constitution of India says that state shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Explain it.
Answer:

Article 14 of the Constitution of India provides that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
As is evident, Article 14 guarantees to every person the right to equality before the law or the equal protection of the laws.

The expression ‘equality before the law’ which is borrowed from English Common Law is a declaration of equality of all persons within the territory of India, implying thereby the
absence of any special privilege in favour of any individual.

Every person. whatever be his rank or position is subject to the jurisdiction of the ordinary courts. The expression “the equal protection of the laws” directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination.

Article 14 applies to all persons and is not limited to citizens. A corporation, which is a juristic person, is also entitled to the benefit of this Article (Chiranjit Lal Chowdhurary v. Union of India, AIR 1951 SC 41).

The right to equality is also recognised as one of the basic features of the Constitution (Indra Sawhney v. Union of India, AIR 2000 SC 498). A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of the same laws for all.

It is here that the doctrine of classification steps in and gives content and significance to the guarantee of the equal protection of the laws. To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between persons who are and who are not similarly situated.

The Supreme Court in a number of cases has upheld the view that Article 14 does not rule out classification for purposes of legislation. Article 14 does not forbid classification or differentiation which rests upon reasonable grounds of distinction.

The Supreme Court in the case of State of Bihar v. Bihar State ‘Plus-2’ lectures Associations, (2008) 7 SCC 231 held that now it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and confers equal protection of laws.

It prohibits the state from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It however, does not forbid classification.

In other words, what Article 14 prohibits is discrimination and not classification if otherwise such classification is legal, valid and reasonable. Space to write important points for revision

Question: Discuss the “Doctrine of Eclipse” under the Constitution of India.
Answer:

Doctrine of Eclipse:

The Doctrine of Eclipse is a part of Article 13 of the Constitution of India. It helps in empowering the fundamental rights.

According to this doctrine, if there is any act prevailing from before the pre-Constitution days, and it contains something that is against the Constitution, the act will not become redundant, but will be eclipsed or become dormant to that extent till the Constitution is amended so it can be operative again.

This saves parliamentary laws from being scrapped and remade, and whenever such eclipse is removed, the law is operative again from the date of such removal.

The doctrine came to light in the case of Bhikaji Narain Dhakras vs. State of M.P., which questioned the power of the Government to regulate, control and to take up the entire motor transport business by itself, by means of an Act.

The Act was initially valid, but after the Constitution came into being, it was rendered inconsistent under the provisions made by Article 13(1), on the grounds that it contravened the freedom to carry on trade and business given by the Constitution under Article 19(1)(g).

It was thereby held that in the case of a pre-Constitution law or statute, the doctrine of eclipse would apply. Although till date, no clear-cut decision has been made whether the Doctrine of Eclipse is applicable on just pre-Constitution laws or even on post-Constitution laws.

Question: Article 19(1)(g) of the Constitution of India provides that all citizens shall have the right to practice any profession, or to carry on any occupation, trade or Business. Explain.
Answer:

Article 301. Freedom of trade, commerce and intercourse under Article 19 (1) (g):

The Constitution provides that subject to the other provisions of this part, every person has the right to carry on any trade, commerce or intercourse throughout the territory of India.

Article 302. Power of Parliament to impose restrictions on trade, commerce and intercourse:

The Parliament may by law impose such statutory restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in public interest, safety or integrity of the country.

Article 303. Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce:

The Union and the State can make any laws or restrict trade or business in any commodity in case there is a shortage or scarcity in any state or region, but other than this, there can be no discrimination between states.

Article 304. Restrictions on trade, commerce and intercourse among States:

The legislature of a state may impose any kind of tax on goods brought into that state from another state or union territory, in order to remove any extreme differences in the prices of commodities.

Freedom of trade and profession is provided under Article 19 (1) (g) of the Constitution of India. This gives the citizens the right to pursue any trade, profession, business or occupation in any place within India.

This right is, however, not absolute and it can be restricted by the State in the following cases –

• When the State feels it is essential to do so in the public interest.
• When it is felt that there should be some basic qualifications for any occupation or profession, it can provide so.
• When the State feels that it needs to establish control in some area of trade, occupation or business, so that it can be better tended.

These restrictions shall be considered valid when the conditions of the trade or business restricted at that time justify them, for example, for keeping the price of essential services down.

Hence, the State can take over these rights to any extent – from being one of the participants in that trade to being the only one, provided it is justified in doing so.

Question: Vijay, an accused, committed an offence of dacoity in 2015. At that time dacoity was punishable with imprisonment of 10 years. In 2016 during his trial, a law was passed which made dacoity punishable with life imprisonment. Which penalty would be applicable on accused Vijay’? Discuss the answer with reference to Article 20(1) of the Indian Constitution.
Answer:

Protection against ex-post facto laws:

According to Article 20(1), no one shall be convicted of any offence except for violation of a law that made the act committed an offence. Nor can a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence be charged for the offence.

Ex-post facto laws:

These are laws which punish what had been lawful when done. The Constitution protects anyone who had committed an act earlier when the act was not punishable from being punished with retrospective effect.

If a particular act was not an offence according to the law at the time when the person did that act, then he cannot be convicted under a law which with retrospective declares that act as an offence.

For example, something done in 2000 which was not an offence then under any law cannot be declared as an offence under a law made in 2018 giving retrospective validity and adding applicability to it from a back date, say from 2000.

Similarly, the penalties for an offence too, cannot be enhanced with retrospective effect, so as to bring more punishment to bear upon someone who had committed an act against that law.

Shiv Bahadur Singh v. State of Vindhya Pradesh In this case, it was clarified that Article 20 (1) prohibited the conviction under an ex-post facto law, and that too the substantive law. This protection is not available with respect to procedural law.

Thus, no one has a vested right in procedure. Hence, Vijay cannot be punished with life imprisonment as that penalty was introduced in 2016, whereas the offence took place in 2015. So for him, the penalty would be ten years.

Question: “Any law which is inconsistent with the fundamental rights is void ‘to the extent of inconsistency’ and it is not necessary to strike down the whole Act as invalid, if only a part is invalid.” Discuss.
Answer:

Doctrine of Severability: Any law which is inconsistent with the Fundamental Rights is void to the extent of inconsistency: This Doctrine is contained in Article 13 of the Constitution of India. According to this doctrine, the part of a statute which is not compatible with the fundamental rights provided for in the Constitution will be severed and declared invalid.

This helps to maintain both constitutionality and saves the statutes from being struck down completely. The rest of the act that is allowed to exist can operate separately. The only thing to be considered here is whether the leftover portion is enough to still fulfill the objectives of the Act.

This doctrine is a very useful one, used in both contract and common law, as it is useful in saving redundancy of contracts. and acts. Under this, Courts construct the meaning of a contract or act by severing the troubling part, if it is severable and only if severability is not possible, the entire act is scrapped (Article 154).

Similarly, the courts have the power to sever an unconstitutional provision in a statute and enforce the remainder of the statute if it can exist without the severed part (Article 155). This doctrine has been provided to increase the usability of statutory acts and legal contracts, so as to prevent redundancy and to make future use possible.

In the case of A.K.Gopalan v. State of Madras, the Supreme Court ruled that where an Act was partly invalid, if the valid portion was severable from the rest, the valid portion would be maintained, provided that it was sufficient to carry out the purpose of the Act.

Question: “Under the Indian Constitution, Parliament is empowered to make law even on the subjects enumerated in the State List”. Discuss the power of Parliament to make Laws on State List.
Answer:

The Parliament can extend the legislative powers given to it by the Constitution to formulate laws under special situations to include certain subjects of the State List. Some of the conditions under which the Parliament may extend its powers include the situations explained below: sentad

• In the National Interest (Under Article 249)
• Proclamation of Emergency (Article 250) in any state by the President.
• If two states agree that the Parliament can legally make laws with respect to the two states, then the Parliament can make laws relating to any state or states (Under Article 252)
• For the implementation of treaties in the international interest of the country (Under Article 253).
• Failure of Constitutional Machinery in a State as a result of the stod inefficiency of a State Legislature, as declared by a proclamation issued by the President (Under Article 356 (1) (b).

Normally both the Union Government and the State Governments operate within the limitations of the powers given to them by the Constitution. They enjoy equal powers to make laws relating to the Concurrent list items, which are of general importance such as succession, transfer of property, preventive detention, education, etc.

If there arises a conflict between a law passed by the Union and that passed by one or more State Legislatures, precedence would be given to the law made by the Union Parliament.

However, problem arises when either the Union or a State illegally encroaches upon the powers of the other legislature, or they may arise because the two laws do not coordinate. Only where the legislation is on a matter in the Concurrent List, it becomes important to apply the test of repugnancy and judge which act will apply.

Normally the Union law is given preference, unless the State has reserved a law for the approval of the President, in which case it will supersede the law made by the Union. However, the Union can at all times cause an alteration or amendment in the law.

Question: Briefly describe the Fundamental Rights against exploitation under Constitution of India, ug say (5 marks)

Answer:

The Right against Exploitation is contained in Articles 23 and 24, which provide for rights against exploitation of citizens as well as non-citizens. The rights are ensured by way of certain restrictions, against the State as well as against private persons.

Prohibition of traffic in human beings and forced labour:

Article 23 bans human trafficking, beggar and other similar forms of forced labour, seen in rural and interior parts of the country mostly. These articles term these practices unconstitutional and any person forced to suffer these practices can complain against the violation of his fundamental right under this article.

The exceptions here are the State which can impose compulsory services for public purposes such as for defence or for social service etc. However, in so doing, the State cannot discriminate on grounds of religion, race, caste or class.

Prohibition of employment of children: Article 24 bans the employment of children below the age of fourteen in 319 any factory or mine. Guidelines for this were given by the Supreme Court aab in the landmark case of M.C. Mehta v. State of T.N.

The topic is also pain detailed in various other acta that protect the rights of children, viz. the Employment of Children Act, 1938; The Factories Act, 1948; The Mines Act, 1952; The Apprentices’ Act, 1961; and the Child Labour (Prohibition onorand Regulation) Act, 1986.

Question: “Article 16 of the Indian Constitution guarantees equal opportunity to all citizens of India in matters related to public employment. However, there are certain exceptions of the Article 16”. Explain the reservation policy in India.
Answer:

If someone is denied public employment on grounds of his caste, religion or place of birth, he can use Article 16 of the Constitution of India for opposing such an action. Article 16 (1) gives every citizen equal rights to public employment, whereas Article 16(2) prohibits inequity in such matters.

In the case of Champakam Dorairajan vs. State of Madras, 1951, caste based reservations were struck down by the court, as against Article 16(2) of the Constitution.

If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this Article.

This case resulted in the First Amendment of the Constitution of India.

The exceptions to this are provided in the Articles 16(3), 16(4), 16(4A), 16(4B), 16(5), & 16(6):

1. The Parliament has every right to promulgate a law requiring residence of a particular State or Union Territory, in the context of employment or appointment to an office under the Government of a State on a Union Territory. In this case, such a condition shall be deemed to be an essential qualification for employment. [Article 16(3)]
2. Likewise, the State can make reservations for a particular backward class of citizens which in its opinion, is not adequately represented in the State services. [Article 16(4)]
3. Similarly, the Parliament can make reserve some specific posts for the Scheduled Castes and the Scheduled Tribes which, the State deems to be inadequately represented in the services under the State. [Article 16(4A)].
4. The State has the authority to fill any unfilled vacancies in a particular year. For this purpose, they can consider the posts previously reserved for under Article 16 (4) or 16 (4A) as a separate class of vacancies that can be filled in the succeeding year(s). To this end, they will not be clubbed with the vacancies of that year. [Article 16(4B)].
5. A law requiring that an incumbent to the office related to the affairs of a particular religious or denominational institution or that of its governing body shall compulsorily be a person from the same religion or denomination shall not be deemed to be invalid for this reason. [Article16(5)].

CS Executive JIGL – Constitution Of India Practical Questions

Question 1: Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was challenged on the ground that it deals with a matter which falls in entry 81 of List-I under the Constitution of India which reads: “Post and telegraphs, telephones, wireless broadcasting and other like forms of communication” and therefore, the State Legislature was not competent to pass it. Examine the proposition in the light of “Pith and Substance Rule” referring the case law on this point.

Answer: The Rule of Pith and Substance means that where a law in reality and substance falls within an item on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of legislature.

Acting on Entry 6 of List II of the Constitution of India which reads – Public Health and Sanitation, Rajasthan Legislature passed a law restricting the use of sound amplifiers.

The law was challenged on the Schedule VII, entrý 31 of List I of the Constitution of India deals with “Post and telegraphs, telephones, wireless broadcasting and other like forms of communication, and, therefore, the State Legislature was not competent to pass it.

The Supreme Court rejected this argument on the ground that the object of the law was to prohibit unnecessary noise affecting the health of public and not to make a law on broadcasting, etc.

Therefore, the pith and substance of the law was public health and not broadcasting (G. Chawla v. State of Rajasthan, AIR 1959 SC 544).

CS JIGL Sources Of Law – Types of laws

Mandatory, prohibitive, or permissive 

Law

Law is the order or scheme of functioning deriving from the order of the sovereign or principal authority of the land.

It is a means of regulating or controlling human behavior in various spheres of life-social, political, commercial etc.

Characteristics of Law

All laws are framed within the structure of a State, which authorizes the making of rules of governance.

These rules or laws carry the weightage of State sanction and are made to achieve definite objectives.

Mandatory Laws

Mandatory laws are those that require something to be compulsorily done or observed. For example, taxes have to be paid; corporate Annual Returns have to be filed etc.

Prohibitive laws

Prohibitive laws bar certain conduct, something that harms public property, human, animal or plant life, or the environment, etc.

Permissive laws

Permissive laws are those which neither necessitate nor bar certain acts, rather allow the individual to act in a particular way if he so desires.

For example, the requirements of a passport and a visa for travel to another country are the procedure required by law in case a person wants to travel; the law does not bar travel, but rather prescribes a procedure to do so.

Legal Customs

These are customs enforceable by law. The courts give them sanctity and recognition and hence they form a part of the law of the land.

Learn and Read More CS Executive JIGL Question and Answers

Local Customs

These are customs specific to a particular area or locality.

General Customs

These are prevalent throughout a particular country and are seen as law of the land. For example, the Common Law in England is seen as representing their way of life, and embodies the general customs of the land.

Conventional Customs

These are derived from usance; they gain validity because people have been using them for a long time.

Precedents

Precedents mean established guidelines for future conduct. eliolabes

Original Precedent

An original precedent is one that brings into existence a new rule of law.

Declaratory Precedent

A declaratory precedent is one that merely applies a rule of law already established. In this case, it is done because the rule is already a law.

Persuasive Precedents

These are precedents that are convincing because they have the support of historical value. The judges are not obliged to follow these, but good precedents are generally followed and emulated.

Absolutely Authoritative Precedents

These are precedents that judges have to follow whether or not they are of the same opinion, since these are seen as valid sources of law.

Conditionally Authoritative Precedents

Such a precedent is usually accepted and followed unless there exist certain conditions that bar this. Usually it happens when the decision is a wrong one, i.e., contrary to law, prudence and public policy.

Mercantile Law

Mercantile Law is related to the commercial activities of the people of the society. It is that branch of law which is applicable to or concerned with trade and commerce in connection with various trade or business transactions.

Legal Theory

Legal theory or jurisprudence is the study of how law operates. It is the theory behind any law, the why and wherefore of it.

Stare Decisis

This doctrine implies that a court decision is usually taken to be a precedent, the validity of which is respected and which is followed in similar cases. Literally, it means “to adhere to the decision and do not unsettle established facts”.

Ratio Decidendi

These are the principles derived from a particular case, which underlie any judicial decision. These principles act as guidelines for future similar cases and are extremely helpful to judges.

Obiter Dicta

Literally it means that which is “said by the way”. It covers within its ambit all that the judges have said while delivering a particular judgment.

Personal Law

It is the law that is applicable to a particular person or class of persons only. For example, Hindu law, Mohammedan law, etc. It is different from territorial law, which is applicable to all persons equally, whoever is within that particular geographical territory.

The sources of such law are usually the holy books of each community.

Command

It is an order given by a person in authority, capable of directing other people to do or to abstain from doing something. It requires two parties the one giving the command, and the other to whom the command is being given.

Sovereign

This term is used in Austin’s theory. As per his theory, a sovereign is a political superior. A sovereign is one who is obeyed by others but who himself is not under anyone’s orders. As per Austin’s theory, the sovereign is the source of all laws, and his dictums are to be followed as such.

Sanction

It is a punishment or penalty for something not being done as per law. As per Austin’s theory, unless a law is backed by sanction, the sovereign’s sayings cannot really be termed as law.

Norm

As per Kelsen, ‘norm’ is a precedence of behavior prescribed by certain rules. He distinguished between moral and legal norrn, prescribing moral norms as things that ‘ought’ to be done, although violations of these do not result in penalties.

Legal norms are those the violations of which necessitate penalties.

CS JIGL Sources Of Law Distinguish Between

Question 1: Distinguish between ‘Ratio Decidendi’ and ‘Obiter Dicta’ in a judgement by a Court.
Answer:

Ratio Decidendi:

These are the principles derived from a particular case, which underlie any judicial decision. These principles act as guidelines for future similar cases and are extremely helpful to judges.

Moreover, the ratio decidendi carry authoritative weightage. The ratio is the extraction of law derived from the decision or judgment. Such extractions or principles can be applied to other similar cases, thus saving on judicial time and ensuring uniformity.

The judge has the right to decide upon the ratio decidendi and to apply it on any given case.

Obiter Dicta:

Literally it means that which is “said by the way”. It covers within its ambit all that the judges have said while delivering a particular judgment. These statements might not be critical to the judgment or decision of the particular issue raised, as they usually go above and beyond the requirement of a particular case.

Thus, they just carry the force of persuasive precedents and do not bind the judges. They are however, free to take them as an aid to decision making. It sometimes becomes difficult for lawyers and the Court to determine whether something said by the judges is obiter dicta or ratio decidendi.

Hence, judges have the authority to go against such obiter dicta.

Their differences are as follows:

CS JIGL Sources Of Law Descriptive Questions

Question 2: Critically examine the statement by Austin that “Law is the command of sovereign”.
Answer:

Law is the command of sovereign

John Austin is known for the Command Theory of Law. Austin was a Positivist, meaning that he concerned himself with what the law was instead of what it should be like. According to him, Law is the command of the sovereign that is backed by sanction.

Austin was of the view that Law creates commands which impose duties; failure to fulfill the duties is met with sanctions (punishment).

Thus Law has three main features:

1. It enjoins people to perform certain duties, like a command.
2. It is given by a sovereign authority.
3. There are punishments or sanctions behind non performance of the duties.

Command: It is a direction given to another person to do or to refrain from doing something. If the command is not followed, sanctions are inevitable.

Sovereign: In Austin’s theory, the sovereign is an authority that is the source of all laws. It is from here that all laws are propagated and derive authority from.

Criticism of Austin’s Command Theory of Law:

Welfare states have quite a number of social legislations that do not order the people to do something; rather, they confer rights and benefits upon them. Such laws are not covered under the command theory.

As per this theory, the sovereign does not have to obey anyone but the modern states have to comply with national and international laws and norms. For example, the Government of India cannot make laws that go against the Constitution of India.

This theory does not consider judge-made laws. He said that judges work under the tacit command of the sovereign but in reality judges have the authority to bring into being positive laws as well.

Since the presence of a sovereign is a pre-requisite for a proposition to be called law, Austin’s theory does not cover international laws because they are not backed by any sovereign as such.

Question 3: Critically examine Roscoe Pound’s theory of interests.
Answer:

Roscoe Pound’s theory of interests

Roscoe Pound a distinguished American legal scholar drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering. The goal of this theory was to build such a structure of society where the satisfaction of maximum of wants was achieved with the minimum of friction and waste.

Such a society according to Roscoe Pound would be an. ‘efficient’ society. Realisation of such a social structure would require balancing of competing interests. Roscoe Pound defined interests as claims or wants or desires which men assert de facto, and about which law must do something, if organised societies are to endure.

For any legal order to be successful in structuring an efficient society, there has to be a recognition of certain interests- individual, public and social; a definition of the limits within which such interest will be legally recognized and given effect to and securing of those interests within the limits as defined.

According to Roscoe Pound, for determining the scope and the subject matter of the legal system, following five things are required to be done:

1. Preparation of an inventory of interests and their classification.
2. Selection of the interests which should be legally recognized.
3. Demarcation of the limits of securing the interest so selected.
4. Consideration of the means whereby laws might secure the interests when these have been acknowledged and delimited, and
5. Evolution of the principles of valuation of interests.

Roscoe Pound’s classification of interests are as follows:

Individual interest: These are claims or demands determined from the standpoint of individual’s life and concern. They are Interest of personality; Interest in domestic relations and Interest of substance.

Public interest: These interests are asserted by individual from the standpoint of political life. They are Interests of the state as a juristic person and Interests of the state as guardian of social interest.

Social interests: These are claims or demands thought of in terms of social life and generalized as claims of the social group. It is from the point of view of protecting the general interest of all members of the society.

Question 4: Discuss the “Doctrine of Stare Decisis”, under the sources of law.
Answer:

Doctrine of Stare Decisis”, under the sources of law

The doctrine of stare decisis means adherence to the past decision and do not unsettle things which are established. It is a useful doctrine intended to bring about certainty and uniformity in the law.

Under the stare decisis doctrine, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. In simple words, the principle means that like cases should be decided alike.

This doctrine is based on public policy. Although doctrine should be strictly adhered to by the Courts, it is not universally applicable. The doctrine should not be regarded as a rigid and inevitable doctrine which must be applied at the cost of justice.

Question 5:Justice, Equity and Good Conscience’ is the main Secondary Source of Indian Law. Explain it.
Answer:

Secondary source of Indian law: adm

Justice, Equity, and Good Conscience:

Generally, in case of personal law disputes, the courts are required to apply the personal law of the defendant if the point at issue does not come under any statute or custom. If even that is not applicable, then the Courts apply to the case what is known as ‘justice, equity and good conscience’.

Justice, equity and good conscience mean the rules of English law on a similar matter as modified to accommodate the Indian conditions and circumstances.

The Supreme Court has stated that it is now well established that in the absence of any rule of Hindu Law, the Courts have authority to decide cases on the basis of these principles, unless doing so goes against any doctrine or theory of Hindu Law.

Question 6: Natural law says that certain rights are inherent by virtue of human nature and can be understood universally through human reason. Explain.
Answer:

Natural law says that certain rights are inherent by virtue of human nature and can be understood universally through human reason.

“Certain rights are inherent by virtue of human nature, and can be understood universally through human reason.” Various definitions of law have been given by various theorists, that have focused on the different facets of law.

As per these differentiations, there exist many different schools of thought, of which the Natural School is also one. This school covers most of the earliest definitions of law, as given by Roman and other ancient Jurists. Cicero said that Law is “the highest reason implanted in nature.”

In these ancient definitions, ‘justice’ is the chief tenet of law. In India, the ancient Hindu view was that ‘law’ is the embodiment of all commands deriving from God and not from any king or political sovereign.

All the people, including the sovereign are secondary to it and have to follow it and be bound by it. Thus, ‘law’ is a part of ‘Dharma’ or the social mores.

Salmond, the prominent modern natural law thinker, defines law as “the body of principles recognised and applied by the State in the administration of justice.”

Hence two main facets of law emerge:

• First, in order to understand law, its purpose or object should be known.
• Second, in order to establish the true nature of law, i.e. to seek its interpretation, one should approach the courts and not the legislature, which is the law-making body; the interpretation of it lies with the courts. Space to write important points for revision

Question 7: What are the essential conditions of a valid custom? Discuss. Explain any four.
Answer:

The essential conditions of a valid custom

Requisites of a Valid Custom For any custom to be valid and binding, it has to satisfy the following criteria:

Historical or Immemorial: It must have continued from ancient times, for example, the Hindu marriage rights are said to have continued from the earlier times, and have hence acquired the status of custom.

Certainty: There must not be any ambiguity in the custom or its sale application.

Reasonableness: Besides fulfilling a purpose, the custom must not be something as to cause unnecessary hardship to the people following it. It will be followed and upheld only till the point it has usefulness to society. It will likely be dropped if it is opposed to the general principles of equity, justice and prudence.

Compulsory Observance: In order to be universally acceptable, a custom has to have been observed or followed for a long time. It should, in fact, have become more like a rule of conduct or behaviour or a way of life.

Compliance with Law and Public Morality: It should be compliant with the general ideas of public morality and policy, as anything against that would not only be unconstitutional, but also unacceptable to the people.

Generally acceptable: Anything applicable universally can be said to be a custom; if left to personal choice, it loses that status.

Quiet Enjoyment: There should not be a court dispute or a contradiction that hampers the enjoyment of the custom.

Consistency: There should not be a hindrance caused to other laws, and this custom should be followed consistently down the times, and by all people.

CS JIGL Sources Of Law Short Notes

Question 1: Short notes

1. Customs or customary law.
2. Judicial precedents.
3. Doctrine of Stare Decisis
4. Ratio Decidendi
5. Obiter dicta

Answer:

Customs or customary law: Conventions, traditions and social mores are the oldest sources of law, since that is where the concept of a standard and acceptable way of behaviour arose.

Now, with most of it being replaced with specifically made laws and court precedents, the importance of this source is waning. Traditionally, customs are of and rules that arose spontaneously according to the needs of situations bar and the surrounding circumstances in societies.

Customs become fixed when a large part of the populace adopts a particular way of adt doing things which is deemed to be more convenient or acceptable er than any other.

Repetitive doing of things in a particular way results in customs being formed. For example, the way the Hindu marriage rituals are performed has altered to some extent today, incorporating some elements of the popular culture as seen in the current society.

Hindu Law is mainly derived from customs, and is contained in the Smritis, like in the Manu Smriti.

Types of customs

Customs are of two types:

Customs with sanction: These are those the enforcement of which is a State responsibility. These are again of two types:

Legal Customs: These are enforceable by law. The courts give them sanctity and recognition and hence they form a part of the law of the land. They can further be segregated into two types –

Local Customs: These are customs specific to a particular area or locality. They may be specific to that area only or specific to a particular group of people, a sect, a community or a sub-caste. Thus, local customs may also be segregated into two:

Geographical Local Customs – customs particular to a specified area.

Personal Local Customs customs specific to a particular group originating from a particular area; they take these customs wherever they go. For example, the nomads of Rajasthan have a particular way of life that is seen as law amongst them; whoever breaks those rules has to face repercussions. It does not matter whether they are currently living in M.P. or U.P.

General Customs: These are prevalent throughout a particular country and are seen as law of the land. For example, the Common Law in England is seen as representing their way of life, and embodies the general customs of the land.

Conventional Customs: These are derived from usance. They carry a binding factor because they derive from an agreement or understanding between the parties; by themselves, they do not have any legal sanction behind them as represented by a law. For this to happen, however, they must satisfy the following conditions:

• The convention should be clearly established and fully known to both/all the contracting parties. However, there is no standard period prescribed for a convection to be followed before it becomes obligatory.
• It cannot, though, modify the general law of the land.
• It must be rational, realistic and practicable.

Conventional customs may also be categorized as:

• General customs are those that are applicable everywhere.
• Local customs are limited in scope, either to a particular locality or to a particular type of business or profession or transaction.

Customs without sanction – These are the customs that are followed because of a fear of public opinion. These are also known as “positive morality”.

Judicial Decisions or Precedents: Precedents mean established guidelines for future conduct. The Courts use previous decisions as benchmarks for guidance, in order to aid them in judging future cases.

Judicial precedents are those that lay down a new rule or principle, or establish a new code of conduct. They supplement the established law and are seen at par with it. Once set, they help in deciding future cases which are the same as the case in which these precedents were formed.

At the base of this practice is the belief that judicial precedents can safely be assumed to be true. 19 The reason why a precedent is recognised is that a judicial decision is presumed to be accurate and generally beyond reproach.

This practice helps the people litigating under a particular law to gain confidence since the law appears certain and not arbitrary.

Precedents can be of the following types:

Declaratory and Original Precedents: A declaratory precedent is one that merely applies a rule of law already established. In hed on this case, it is done because the rule is already a law. Declaratory yopt no precedents are important sources of law, since they might be the founding stones of the future law.

An original precedent is one that brings into existence a new rule of law. This type of precedent will become law for the future. These help in improving the legal situation of the country.

As far as legal authority is concerned, both carry equal weightage. The legal authority of both is exactly the same.

Persuasive Precedents: These are precedents that are convincing because they have the support of historical value. The judges are not obliged to follow these, but good precedents are generally followed and emulated.

In the Indian context, the judgments of one High Court are only persuasive precedents for the other High Courts. Similarly, obiter dicta also have only persuasive value.

Absolutely Authoritative Precedents: These are precedents that judges have to follow whether or not they are of the same opinion, since these are seen as valid sources of law. For example, courts in India are bound by the decisions of their superior courts.

Conditionally Authoritative Precedents: Such a precedent is usually accepted and followed unless there exist certain conditions that bar this. Usually it happens when the decision is a wrong one, i.e., contrary to law, prudence and public policy.

Doctrine of Stare Decisis: This doctrine implies that a court decision is usually taken to be a precedent, the validity of which is respected and which is followed in similar cases. Literally, it means “to adhere to the decision and to not unsettle established facts”.

This is used to avoid arbitrariness in law. Under this doctrine, any principle of law that has been followed in a number of cases gains the status of a binding rule and is generally followed in later similar cases unless its usefulness is put to question on grounds of dissimilarity of case.

This doctrine also aids in making matters faster for the courts and the litigants. It is not absolutely inviolable though.

Ratio Decidendi: These are the principles derived from a particular case, which underlie any judicial decision. These principles act as guidelines for future similar cases and are extremely helpful to judges.

Moreover, the ratio decidendi carry authoritative weightage. The ratio is the extraction of law derived from the decision or judgment.

Such extractions or principles can be applied to other similar cases, thus saving on judicial time and ensuring uniformity. The judge has the right to decide upon the ratio decidendi and to apply it on any given case.

Obiter Dicta: Literally it means that which is “said by the way”. It covers within its ambit all that the judges have said while delivering a particular judgment. These statements might not be critical to the judgment or decision of the particular issue raised, as they usually go above and beyond the requirement of a particular case.

Thus, they just carry the force of persuasive precedents and do not bind the judges. ed. They are however, free to take them as an aid to decision making. It sometimes becomes difficult for lawyers and the Court to determine whether something said by the judges is obiter dicta or ratio decidendi.

Hence, judges have the authority to go against such obiter dicta.

Question 2: Write short notes on

1. Austin’s Command Theory of Law
2. Roscoe Pound’s Sociological Jurisprudence
3. John William Salmond’s views on jurisprudence and law
4. Hans Kelsen’s ‘Pure Theory of Law’
5. Jeremy Bentham and analytical jurisprudence

Answer:

John Austin is known for the Command Theory of law. Austin was a positivist, meaning that he concerned himself with what the law was instead of what it should be like. According to him, law is the command of sovereign that is backed by sanction.

Austin was of the view that law creates commands which impose duties; failure to fulfill the duties is met with sanctions (punishment).

Thus Law has three main features:

1. It enjoins people to perform certain duties, like a command.
2. It is given by a sovereign authority.
3. There are punishments or sanctions behind non performance of the duties.

Command – It is a direction given to another person to do or to refrain from doing something. If the command is not followed, sanctions are inevitable.

Sovereign – In Austin’s theory, the sovereign is an authority that is the source of all laws. It is from here that all laws are propagated and derive authority from.

Sanction – It is the consequence that follows on non-compliance of the commands.

Criticism of Austin’s Command Theory of law

Welfare states have quite a number of social legislations that do not order the people to do something; rather, they confer rights and benefits upon them. Such laws are not covered under the command theory.

As per this theory, the sovereign does not have to obey anyone but the modern states have to comply with national and international laws and norms. For example, the Government of India cannot make laws that go against the Constitution of India.

This theory does not consider judge-made laws. He said that judges work under the tacit command of the sovereign but in reality judges have the authority to bring into being positive laws as well.

Since the presence of a sovereign is a pre-requisite for a proposition to be called law, Austin’s theory does not cover international laws because they are not backed by any sovereign as such.

Roscoe Pound a distinguished American legal scholar was a leading jurist and the biggest supporter of sociological jurisprudence. This theory says that social facts should be taken into consideration in the making, interpretation and application of laws.

The goal of Roscoe Pound’s theory of social engineering was to build such a structure of society where the satisfaction of maximum wants was achieved with minimum friction and waste.

Such a society could be termed as an ‘efficient’ society. At the base of such a social structure would be a sound balancing of competing interests. Interests here could be termed as claims or wants or desires which men have, about which law must do something, if organised societies are to last.

For any legal order to be successful in organising an efficient society there has to be:

1. Recognition of individual, public and social interests.
2. Defining the limits within which such interest will be legally brna be recognized and given effect to.
3. Securing those interests within limits.

According to Roscoe Pound, for deciding upon the scope and the subject matter of the legal system, the following five steps are required:

1. Listing out the various interests.
2. Choosing which interests to be legally recognized.
3. Defining the limits of the interest so selected.
4. Deciding upon the means to be used to secure these interests, and
5. Determining how the interests are to be valued.

Roscoe Pound’s classification of interests are as follows:

Individual interest: These are demands determined from an individual viewpoint. They are-

Interest of personality: This includes physical integrity, wd freedom of will, honor and reputation, privacy and freedom of conscience.

Interest in domestic relations: This includes relationships of parents, children, husbands and wives.

Interest of substance: This includes interests of property, freedom of association, freedom of industry and contract, continuity of employment, inheritance and testamentary
succession.

Public interest: These interests are claimed by individuals from the standpoint of political life. They are:

Interests of the state as a juristic person: It includes integrity, freedom of action and honour of the state’s personality, claims Pop of the politically organized society as a corporation to property sed olup acquired and held for corporate purposes.

Interests of the state as guardian of social interest.

Social interests: These are claims of the social group. They have the angle of protecting the general interest of all members of the society. Social interests include-

• Social interest in the general security. This includes general safety, peace and order, general health, security of acquisition and transaction.
• Social interest in the security of social institutions such as domestic, religious, political and economic institutions.
• Social interest in general morals like laws dealing with prostitution, gambling, bigamy, drunkenness.artt
• Social interest in the conservation of social resources like the natural and human resource.
• Social interest in general progress. It has three aspects- economic, political and cultural, and overd
• Social interest in individual life. It involves self-assertion, opportunity and conditions of life. Society is interested in individual life because individuals are its building blocks.

Criticism of Roscoe Pound’s theory of law

Pound’s proposition that interests pre-exist laws hence the function of legal system should be to achieve a balance between competing interests does not really stand, as a lot of interests today are a creation of laws.

The theory does not provide a yardstick for the evaluation of interest. Which interest to retain, which to remove can only be decided on the basis of such a yardstick.

Pound’s theory gives more importance to judiciary in comparison to the legislature, as the balancing of interests can be done most effectively by judges, not the legislature.

Pound’s distinction between the various interests is not very clear.

The recognition of a new interest is a matter of policy; the theory does not specify this policy.

John William Salmond was a law professor in New Zealand as also a judge of the Supreme Court of New Zealand. He claimed that the purpose of law was ensuring justice to people. However, he also necessitated the presence of the state for implementation of laws just like Bentham and Austin.

He gave an interesting distinction though, between ‘a law’ and ‘the law’ and said that the former refers to the concrete and the latter to the abstract. In its abstract application we speak of civil law, the law of defamation, criminal law etc.

Similarly we use the phrases law and order, law and justice, courts of law. In its concrete sense, on the other hand, we talk about specific laws like the Indian Penal Code or the Right to Information Act.

According to Salmond law is a body of principles that is given imo recognition by the state and applied in the administration of justice. ‘Law’ in this definition is used in its abstract sense.

As per Salmond, the constituent elements of which the law is made up are not laws but rules of law or legal principles.

Moreover, he believed that if a just society is to be maintained, it is necessary to add compulsion so as to compel the people to walk on the desired path. Two things provide this control one is the compulsion created by law, i.e. the fear of being penalized if they do not follow the law.

Secondly, the same function is performed by the fear of public opinion. He also believed that the chief function of a State is to administer the laws. Laws by themselves are secondary. Criticism of Salmond’s thecy.

Salmond’s assertion that justice is the end and law is only a medium to realize it can be questioned in the light of certain laws that have been accused of being ‘unjust’. For example, the Sarfaesi Act.

The pursuit of justice is not the sole purpose of law; the purpose evolves over time and can even change.

There is a contradiction in the theory itself on the one hand, Salmond says that the purpose of law is the administration of justice, but limits ‘jurisprudence’ to the study of a national legal system.

Since justice per se is a universal concept, the analysis of law should not be constrained by national boundaries.

Hans Kelson was an Austrian philosopher and jurist who gave the ‘Pure Theory of Law’. Kelson believed that the contemporary study and theories of law were impure as they drew upon various other fields like religion and morality to explain legal concepts.

Kelson was also a positivist, in that he wanted to focus solely on what the law was, not on what it could be, thus removing any moral, ideal or ethical elements from law. He discarded the presupposition of justice as an essential element of law because many laws may still continue as law despite being unjust.

He described law as a “normative science’. He also considered sanction as an essential element of law but he preferred to call it ‘norm’. He believed, law is a primary norm which stipulates sanction’.

According to Kelson, ‘norm (sanction) is rules forbidding or prescribing a certain behaviour’ Thus, Kelsen’s pure theory of law is based on pyramidal structure of hierarchy of norms which derive their validity from the basic norm.

Grundnorm is said to be the basic norm, which determines the content and gives validity to other norms derived from it. This Grundnorm is the result of social, economic, political and other conditions and it is. supposed to be valid by itself.

For example, In India a statue or law is valid because it derives its legal authority from being duly passed by the Parliament and receiving the accent of the President, the Parliament and the President deriving their authority from a basic norm i.e., the Constitution.

As to the question from where does the Constitution derive its validity there is no answer and, therefore, it is the Grundnorm, according to Kelsen’s conception of pure theory of law.

Criticism of Kelsen’s Pure Theory

It is difficult to trace ‘Grundnorm’ in every legal system. Also, there is no rule or yardstick to measure its effectiveness.

The validity of anything is a matter to be determined in the context of a given point of time and depends on what judges are prepared to accept at that moment as imparting law quality.

The moment one tries to analyse the Grundnorm, the theory ceases to be ‘pure’ because then one will have to draw upon subjects other than law like sociology, history and morality.

Kelsen advocated a monist view that the grundnorm of the international system postulated the primacy of international law. 1965 Although in reality, most of the countries of the world give primacy to municipal laws over international laws.

Jeremy Bentham was the pioneer of analytical jurisprudence in Britain. According to him ‘a law’ is conceived or adopted by a sovereign in a state, and it relates to the conduct to be observed in a certain case by a certain person or a class of persons, who in the case in question are or are supposed to be subject to his power.

Thus, Bentham’s concept of law can be said to be an imperative one. He believed that nature has placed man under the command of two authorities pain and pleasure. ‘Pleasure’ here implies altruistic and obligatory conduct, the ‘principle of benevolence’, anything promoting pleasure.

The function of laws should be to bring about the maximum happiness of each individual for the happiness of each will result in the happiness of all. He opined that laws are to work for the common happiness and hence the power of making laws should be wielded, not to guarantee the selfish desires of individuals, but consciously to secure the common good.

Bentham said that every law may be considered in eight different aspects:

Source: The source of a law is the will of the sovereign, who may be any person or assemblage according to whose will a whole political community is supposed to be pay obeisance in preference to the will of any other person.

Subjects: These may be persons or things.

Objects: The goals or purposes of a given law are its objects.

Extent: This refers to the coverage of the act.

Aspects: The four aspects of the sovereign will are command, prohibition, non-prohibition and non-command and the whole range of laws are covered under it.

Force: The motivation to obey a law is generated by the force behind the law.

Remedial rules: These are a set of subsidiary laws addressed to the judges through which the judges remove, stop or prevent the wrong targeted by the Act.

Expression: A law is an expression of a sovereign’s will. If a law does not cover a specific situation that it might have wanted to cover while being enacted, it is deemed to be incomplete in design.

Criticism of Bentham’s theory of law

Due to the supposition that all laws have to be either command or permission, it does not take proper account of laws conferring power like the power to make contracts, create title, transfer property etc.

Bentham did not give proper consideration to custom as a source of law.

Bentham’s theory did not allow for judge made laws and hoped that such laws would be gradually eliminated by having ‘complete laws’ in order to replace these supposedly inferior ones.

The theory proposes to judge an action according to the pleasure- pain criterion, which makes it subjective. The theory did not provide how a subjective criterion can be changed into an objective one.

It is not always true that an increase in the happiness of a certain group or part of society will lead to an increase in the overall happiness level. It might be just the opposite too – the happiness of one group coming at the cost of the happiness of another.

CS JIGL Sources Of Law Descriptive Questions

Question 1: What are the main characteristics that constitute law?
Answer:

The main characteristics that constitute law

The following elements characterize law: Before a law is made, there must be a law-making body; hence the presumption of a state.

It is this state that is the law-making body; it also has the authority to give recognition to rules arising from various sources and to sanctify them as law.

In order to make the laws universally applicable and acceptable, they are backed by approvals.

All laws require a purpose, a raison detre or an objective or objectives. For example, the tax laws are aimed at generating revenue for the state and ensuring a measure of public welfare.

Question 2: What are the different types of laws that can exist in a state?
Answer:

The different types of laws that can exist in a state

Laws may be of three types – mandatory, prohibitive or permissive.

Mandatory laws are those that require something to be compulsorily done or observed. For example, taxes have to be paid; corporate Annual Returns have to be filed etc.

Prohibitive laws bar certain conduct, something that harms public property, human, animal or plant life, or the environment, etc.

Permissive laws are those which neither necessitate nor bar certain acts, rather allow the individual to act in a particular way if he so desires.

For example, the requirements of a passport and a visa for travel to another country are the procedure required by law in case a person wants to travel; the law does not bar travel, but rather prescribes a procedure to do so.

Question 3: Explain the significance of law.
Answer:

Significance of law

The requirement of law permeates all of society. It is required at various levels in order to keep the functioning of various elements of the State working properly. Its significance can be understood with the help of the following points Law changes to reflect the changes taking place in society.

For example, the Sarda Act was earlier installed to prevent child marriage, but as society has progressed, child marriage is no longer a norm in most levels of society; hence, it was altered in 1978, to raise the legal age of marriage for girls from 15 to 18 years of age, and of boys from 18 to 21 years.

So we can say that the laws of a country reflect upon its society as it stands then. With the changes in science and technology, people’s lifestyles too have altered to become more materialistic and competitive.

These alterations have caused vast changes in laws too, which are needed in order to keep a check on the effects of such changes on society and the development of the nation.

For example, the changes seen in Intellectual Property Rights make it apparent that with the advent of new technology, new Acts and Rules also have to be brought in, as these help in curbing the ill-effects of these changes.

Another example could be that of the Information Technology Act, which was not there earlier, as there were no frequent technology based transactions. Now, however, e-commerce being the trend rather than the exception, such a law becomes even more relevant.

Laws help maintain socio-economic balances (the various slabs for tax rates specified in taxation) and help ensure social justice (the Rights enshrined in the Indian Constitution).

Laws prescribe certain codes of conduct to be observed by the populace that helps in maintaining a measure of predictability, order and peace within the State.

Question.4: Comment on the authority of the High Courts and the Supreme Court.
Answer:

High Courts

The High Courts have appellate jurisdiction over the lower courts – the District Courts and the Sessions Courts.

Their judgements are binding over all lower courts and tribunals that are covered in its jurisdiction.

As far as two High Courts are concerned, the decisions of one have only a persuasive value in the other court.

The High Courts are said to be the Courts of co-ordinate jurisdiction. Therefore, the decision of one High Court is not binding on the other High Courts and has persuasive value only.

In case of any conflict between the decisions of co-equal Benches, generally the decision later in time, i.e. the more recent one is to be followed.

In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is known as Division Bench. Three or more judges ertat constitute a Full Bench. A decision of a higher Bench is binding on a smaller Bench.

A Bench of the same High Court cannot take a view contrary to the add decision already given by another coordinate Bench of that High Court. Even though a decision of a Division

Bench is wrong, it would still hold over the decision of a single judge of the same High Court. If they have reason to differ from it, the proper course is to refer the question for decision by a Full Bench.

Supreme Court

The Supreme Court has quite a lot of powers. It is not bound by its own decisions. However, for practical reasons, the Supreme Court has observed that the earlier decisions of the Court cannot be departed from except for extraordinary or special reasons.

This is generally done if the earlier decision is found flawed and is thus is thus seen as deleterious to the general welfare of the public. In such a case, the Supreme Court will not hesitate in departing from it.

Question.5: Explain the requisites of a valid custom.
Answer:

Requisites of a Valid Custom

For any custom to be valid and binding, it has to satisfy the following criteria

Historical or Immemorial: It must have continued from ancient times, for example, the Hindu marriage rights are said to have continued from the earlier times, and have hence acquired the status of custom.

Certainty: There must not be any ambiguity in the custom or its application.

Reasonableness: Besides fulfilling a purpose, the custom must not be something as to cause unnecessary hardship to the people following it. It will be followed and upheld only till the point it has usefulness to society. It will likely be dropped if it is opposed to the general principles of equity, justice and prudence.

Compulsory Observance: In order to be universally acceptable, a custom has to have been observed or followed for a long time. It should, in fact, have become more like a rule of conduct or behaviour or a way of life.

Compliance with Law and Public Morality: It should be compliant with the general ideas of public morality and policy, as anything against that would not only be unconstitutional, but also unacceptable to the people.

Generally acceptable: Anything applicable universally can be said to be a custom; if left to personal choice, it loses that status.

Quiet Enjoyment: There should not be a court dispute or a contradiction that hampers the enjoyment of the custom.

Consistency: There should not be a hindrance caused to other laws, and this custom should be followed consistently down the times, and by all people.

Question .6: What are the various types of precedents?
Answer:

Kinds of Precedents

Precedents can be of the following types –

Declaratory and Original Precedents: A declaratory precedent is one that merely applies a rule of law already established. In this case, it is done because the rule is already a law. Declaratory precedents are important sources of law, since they might be the founding stones of the future law.

An original precedent is one that brings into existence a new rule of, law. This type of precedent will become law for the future. These help in improving the legal situation of the country.

As far as legal authority is concerned, both carry equal weightage. The legal authority of both is exactly the same.

Persuasive Precedents: These are precedents that are convincing because they have the support of historical value. The judges are not bobliged to follow these, but good precedents are generally followed and emulated.

In the Indian context, the judgments of one High Court are only persuasive precedents for the other High Courts. Similarly, and obiter dicta also have only persuasive value.

Absolutely Authoritative Precedents: These are precedents that judges have to follow whether or not they are of the same opinion, since these are seen as valid sources of law. For example, courts in India are bound by the decisions of their superior courts.

Conditionally Authoritative Precedents: Such a precedent is usually accepted and followed unless there exist certain conditions that bar this. Usually it happens when the decision is a wrong one, i.e., contrary to law, prudence and public policy.

Question.7: What do you understand by legal theory? Differentiate between positive and normative legal theory.
Answer:

Legal Theory

Legal theory or jurisprudence is the study of how law operates. It is the theory behind any ‘aw, the why and wherefore of it. It helps the litigants and the legal professionals both.

There exist two most prominent schools of legal theory the normative legal theory – what the law ought to be, or what ought to be done according to a particular school of thought; this differs according me to the value system being used.

the positive legal theory – what the law is and why it is that way, and how laws affect the world. This is the study of the actual effect of laws as they stand right now, seeing their practical effects in various terms.

Question.8: What are the sources of Indian Mercantile Law? Answer:.

Mercantile or Commercial Law: Mercantile Law is related to the commercial activities of the people of the society. It is that branch of law which is applicable to or concerned with trade and commerce in connection with various trade or business transactions.

All commercial transactions require a valid agreement, whether it is express or implied, between the parties concerned.

The Mercantile Law or Law Merchant or Lex Mercatorla is the name given to that part of law which grew up from the customs and usages of merchants or traders in England which eventually became a part of Common Law of England. The Indian mercantile law derives its existence from it.

Mercantile Law in India: Prior to 1872, mercantile transactions were regulated by the personal laws of the parties to the suit (i.e., Hindu Law, Mohammedan Law etc.) In 1872, it was sought to make uniform rules of mercantile law when the Indian Contract Act, 1872 was enacted.

That was just the precursor; since then, many Acts have been formulated to regulate commercial transactions regarding partnership, sale of goods, negotiable instruments, etc.

Sources of Indian Mercantile Law

The main sources of Indian Mercantile Law are:

English Mercantile Law: Although the Indian Mercantile Law is mainly adapted from the English Mercantile Law, certain aspects have been modified to provide for local customs and usages of trade and to suit Indian conditions.

Its dependence on English Mercantile Law can be understood by the fact that even now, when provisions relating to any matter are not there in the Indian Law, we look to the English law as a recourse.

Statute Law: These are the laws formulated by the Indian legislature, and comprise –

• The Indian Contract Act, 1872,
• The Sale of Goods Act, 1930,
• The Indian Partnership Act, 1932,
• The Negotiable Instruments Act, 1881,
• The Arbitration and Conciliation Act, 1996,
• The Insurance Act, 1938, etc.

Judicial Decisions: These are resorted to when the Act is silent on a particular point. In such a situation, the judge has to decide the case according to the principles of justice, equity and good conscience.

Generally, it is expected that cases which are identical in their facts, should also be identical in their decisions. This principle ensures justice for the individual claimant and lessens ambiguity the application of the law itself.

Customs and Trade Usages: Most of the Indian Mercantile Law has been derived from customs or usages of trade. These are recognised and given legal effect to by courts of law in India.

Question.9: Define the nature and meaning of ‘Law’ under various schools of thought.
Answer:

The nature and meaning of ‘Law’ under various schools of thought

Various definitions of law have been given by various theorists, that have focused on the different facets of law. As per these differentiations, there exist many different schools of thought –

Natural School – This school covers most of the earliest definitions of law, as given by Roman and other ancient Jurists.
Cicero said that Law is “the highest reason implanted in nature.”

Justinian’s Digest defines Law as “the standard of what is just and unjust.”

In these ancient definitions, ‘justice’ is the chief tenet of law. In India, the ancient Hindu view was that ‘law’ is the embodiment of all commands deriving from God and not from any king or political sovereign.

All the people, including the sovereign are secondary to it and have to follow it and be bound by it. Thus, ‘law’ is a part of ‘Dharma’ or the social mores.

Salmond, the prominent modern natural law thinker, defines law as “the body of principles recognised and applied by the State in the administration of justice.”

Hence two main facets of law emerge –

• First, in order to understand law, its purpose or object should be known:
• Second, in order to establish the true nature of law, i.e. to seek its interpretation, one should approach the courts and not the legislature, which is the law-making body; the interpretation of it lies with the courts.

Positivistic Definition of Law

Under this school of thought, the definition given by John Austin clarifies that, “Law is the aggregate of rules set by man as politically superior, or sovereign, to men as political subject.” In other words, law is the “command of the sovereign”.

It places upon the common man a certain course of behaviour or conduct. In a way, it imposes a duty and is backed by authorization given by a sovereign power. Thus, the directive, the duty and the authorization are the three chief elements of law. Kelsen gave a ‘pure theory of law’. As per him, law is necessarily a ‘normative science’.

Historical Definition of Law – Savigny founded the Historical School of Jurisprudence. His theory of law can be summarised as follows:

• Law is essentially a matter of unconscious and natural or organic growth. It is up to man to find law, not to make it.
• There is no one universal law. It varies with people and age and place.
• In designing law, one cannot ignore custom, which precedes legislation and is hence superior to it. Law that recognises custom is acceptable to the populace.
• Law derives from the common consciousness (Volkgeist) of the people.
• Under this theory, the lawyer or the jurist is more important than the legislator.

Sociological Definition of Law

Duguit defines law as “essentially and exclusively as social fact.”

There are three main elements of this definition:

• Law is seen as only a means of social control.
• Law exists to serve a social purpose.
• It is essentially coercive in nature.

Roscoe Pound was of the view that law works like a social institution to satisfy social wants – it helps in regulating the societal claims and demands and in ensuring they are met in judicious ways.

Realist Definition of Law

The Realists refer to law as a judicial process. According to Holmes, “Law is a statement of the circumstances in which public force will be brought to bear upon through courts.”

Hence it can be concluded that law is a mechanism for regulating how people behave in society so that everyone can live together peacefully and harmoniously. This in turn helps the society to progress as a whole.

Question.10: Comment on the principal sources of Indian Law.
Answer:

Principle sources of Indian law

Customs or customary law Conventions, traditions, and social mores are the oldest sources of law, since that is where the concept of a standard and acceptable way of behaviour arose.

Now, with most of it being replaced with specifically made laws and court precedents, the importance of this source is waning. Traditionally, customs are rules that arose spontaneously according to the needs of situations and the surrounding circumstances in societies.

Customs become fixed when a large part of the populace adopts a particular way of doing things which is deemed to be more convenient or acceptable

than any other. Repetitive doing of things in a particular way results in customs being formed. For example, the way the Hindu marriage rituals are performed has altered to some extent today, incorporating some elements of the popular culture as seen in the current society.

Hindu Law is mainly derived from customs, and is contained in the Smritis, like in the Manu Smriti.

Types of customs-

Customs are of two types:

Customs with sanction – These are those the enforcement of which is a State responsibility. These are again of two types:

Legal Customs: These are enforceable by law. The courts give them sanctity and recognition and hence they form a part of the law of the land. They can further be segregated into two types-

Local Customs: These are customs specific to a particular area or locality. They may be specific to that area only or specific to a particular group of people, a sect, a community or a sub-caste. Thus, local customs may also be segregated into two:

Geographical Local Customs – customs particular to a specified area.

Personal Local Customs customs specific to a particular group originating from a particular area; they take these customs wherever they go. For example, the nomads of Rajasthan have a particular way of life that is seen as law amongst them; whoever breaks those rules has to face repercussions. It does not matter whether they are currently living in M.P. or U.P.

General Customs: These are prevalent throughout a particular country and are seen as law of the land. For example, the Common Law in England is seen as representing their way of life, and embodies the general customs of the land.

Conventional Customs: These are derived from usance.
They carry a binding factor because they derive from an agreement or understanding between the parties; by themselves, they do not have any legal sanction behind them as represented by a law. For this to happen, however, they must satisfy the following conditions:

• The convention should be clearly established and fully known to both/all the contracting parties. However, there is no standard period prescribed for a convection to be followed before it becomes obligatory.
• It cannot, though, modify the general law of the land.
• It must be rational, realistic and practicable.

Conventional customs may also be categorized as:

• General customs are those that are applicable everywhere.
• Local customs are limited in scope, either to a particular locality or to a particular type of business or profession or transaction.

Customs without sanction – These are the customs that are followed because of a fear of public opinion. These are also known as “positive morality”.

Judicial Decisions or Precedents

Precedents mean established guidelines for future conduct. The Courts use previous decisions as benchmarks for guidance, in order to aid them in judging future cases. Judicial precedents are those that lay down a new rule or principle, or establish a new code of conduct.

They supplement the established law and are seen at par with it. Once set, they help in deciding future cases which are the same as the case in which these precedents were formed. At the base of this practice is the belief that judicial precedents can safely be a assumed to be true .

The reason why a precedent is recognised is that a judicial decision is presumed to be accurate and generally beyond reproach. This practice helps the people litigating under a particular law to gain confidence since the law appears certain and not arbitrary.

Precedents can be of the following types –

Declaratory and Original Precedents: A declaratory precedent is one that merely applies a rule of law already established. In this case, it is done because the rule is already a law. Declaratory precedents are important sources of law, since they might be the founding stones of the future law.

An original precedent is one that brings into existence a new rule of law. This type of precedent will become law for the future.

These help in improving the legal situation of the country. As far as legal authority is concerned, both carry equal weightage. The legal authority of both is exactly the same.

Persuasive Precedents: These are precedents that are convincing because they have the support of historical value. The judges are not obliged to follow these, but good precedents are generally followed and emulated.

In the Indian context, the judgments of one High Court are only persuasive precedents for the other High Courts. Similarly, obiter dicta also have only persuasive value.

Absolutely Authoritative Precedents: These are precedents that judges have to follow whether or not they are of the same opinion, since these are seen as valid sources of law. For example, courts in India are bound by the decisions of their superior courts.

Conditionally Authoritative Precedents: Such a precedent is usually accepted and followed unless there exist certain conditions that bar this. Usually it happens when the decision is a wrong one, i.e., contrary to law, prudence and public policy.

Stare Decisis

This doctrine implies that a court decision is usually taken to be a precedent, the validity of which is respected and which is followed in similar cases. Literally, it means “to adhere to the decision and to not unsettle established facts”.

This is used to avoid arbitrariness in law. Under this doctrine, any principle of law that has been followed in a number of cases gains the status of a binding rule and is generally followed in later similar cases unless its usefulness is put to question on grounds of dissimilarity of case.

This doctrine also aids in making matters faster for the courts and the litigants. It is not absolutely inviolable though.

Ratio Decidendi

These are the principles derived from a particular case, which underlie any judicial decision. These principles act as guidelines for future similar cases and are extremely helpful to judges.

Moreover, the ratio decidendi carry authoritative weightage. The ratio is the extraction of law derived from the decision or judgment.

Such extractions or principles can be applied to other similar cases, thus saving on judicial time and ensuring uniformity.

The judge has the right to decide upon the ratio decidendi and to apply it on any given case.

Obiter Dicta

Literally it means that which is “said by the way”. It covers within its ambit all that the judges have said while delivering a particular judgment. These statements might not be critical to the judgment or decision of the particular issue raised, as they usually go above and beyond the requirement of a particular case.

Thus, they just carry the force of persuasive precedents and do not bind the judges. dao They are however, free to take them as an aid to decision making.

It sometimes becomes difficult for lawyers and the Court to determine whether something said by the judges is obiter dicta or ratio decidendi. Hence, judges have the authority to go against such obiter dicta.

Statutes or Legislation

Legislation is the source of law for regulations already made. Also known as Jus scriptum (written law), It can be contrasted with the customary law or customs of the land or jus non-scriptum (unwritten law). Salmond refers to it as “enacted law”.

Examples of these are Acts formulated, passed or promulgated by the Parliament or by the State Legislature. Legislation can be either supreme or subordinate (delegated). Supreme Legislation is that which proceeds from the primary, main or sovereign power in the State or which no derives its power directly from the Constitution.

Such a statute cannot be repealed, annulled or controlled by any other legislative authority or body. Subordinate Legislation is that which proceeds from any authority other than the main one or from the sovereign power of the land.

It derives its existence and validity from a higher authority. The Parliament of India has the authority of supreme legislation whereas the Executive, whose main function is to enforce the law can formulate rules and procedures n certain cases.

These are termed as subordinate, executive or delegated legislation. In India, the Acts made by the Parliament and the Ordinances and other laws promulgated by the President and Governors are examples of supreme legislation while the laws made by various authorities like Corporations, Municipalities, etc. under the authority of the supreme legislation are examples of subordinate legislation.

Personal Law

Certain situations require that the personal law of the litigants or the parties to a case be used, where the point at issue is not covered by any statutory law or custom.

For example, the Hindu personal law is enshrined in:

• The Shrutis i.e. the four Vedas.
• The ‘Smritis’ which are recollections handed down by the Rishi’s or ancient teachings and precepts of God plus the commentaries written by various ancient authors on these. Smritis. There are three main Smritis; the Codes of Manu, Yajnavalkya and Narada.

As such, Hindus are governed by their personal law as altered by statute law and custom in all matters relating to inheritance, succession, marriage, adoption, Joint Hindu Family matters, guardianship, maintenance, religious and charitable endowments etc.

The personal law of Mohammedans is to be found in:

• The holy Koran.
• The actions, precepts and sayings of the Prophet Mohammed which are known as Hadis.
• Ijmas, i.e., opinions of the companions of the Prophet and his disciples.
• Kiyas are analogical deductions derived from a comparison of the Koran, Hadis and Ijmas when none of these apply individually to a particular case.
• Commentaries on Mohammedan law, the most important and famous of them being the

Hedaya, which was composed in the 12th century and the Fatawa Alamgiri, which was compiled under the Mughal Emperor Aurangzeb Alamgiri.

Mohammedans are governed by their personal law as modified by statute law and custom in all matters relating to inheritance, wills, succession, legacies, marriage, dowry, divorce, gifts, waqfs, guardianship and rights of preemption.

Question.11: What are the secondary sources of Indian Law?
Answer:

Secondary source of Indian law

Justice, Equity and Good Conscience

Generally, in case of personal law disputes, the courts are required to und add apply the personal law of the defendant if the point at issue does not come under any statute or custom. If even that is not applicable, then the courts apply to the case what is known as ‘justice, equity and good conscience’.

Justice, equity and good conscience mean the rules of English law on a similar matter as modified to accommodate the Indian conditions and circumstances.

The Supreme Court has stated that it is now well established that in the absence of any rule of Hindu Law, the courts have authority to decide cases on the basis of these principles, unless doing so goes against any doctrine or theory of Hindu Law.

Sources of English Law – These are important because most of ( Indian law derives from the English Law. Hence, we study here the sources of English law too.

The Chief Sources of English Law are:

Common Law: The Common Law refers to the principles developed by judges in dealing with cases. These principles have grown cumulatively over a number of years, so much so that most of them form a complete statement of the law in particular legal fields. At the base of these stand the customs.

Mercantile Law: Mercantile Law is the sum total of those customs and usages which are binding on traders in their dealings with each other. For a custom to have the backing of law, it must be proven to be ancient as well as command general and universal compliance. If that is not the case, it needs to be proven by the party claiming it.

Principle of Equity: The principle of equity is essentially based on good conscience and has gained practice through a number of maxims e.g.,

1. “He who seeks equity must do equity”,
2. “He who comes to equity must come with clean hands”.

Some of the important principles and remedies that come under this principle are recognition of the right of beneficiary to trust property, remedy of specific performance of contracts, equity of redemption in case of mortgages, bailments etc.

Statute Law: Statute law implies law developed by the legislation or by an enactment of Parliament or by the subordinate and delegated legislative bodies. A written or statute law always overrides unwritten law – both Common Law and Equity.

Question.12: What do you mean by jurisprudence?
Answer:

Jurisprudence

Literally, it means a combination of the words ‘juris’ meaning law and prudence’ meaning knowledge. ‘ Jurisprudence is the study of the science of law. It does not imply the study of a particular statute or a rule but of law in general, its concepts, its principles and the philosophies that birthed it.

According to B.E. King, jurisprudence is not concerned with the exposition of law but with disquisitions about law. Jurisprudence studies rights, duties and obligations. It draws upon insights from other fields of study, thus making law all the richer.

The primary duty of jurisprudence is to throw light on the nature of law.

However, different people have defined law in different ways. As per the various definitions it can be seen that law has a two-fold aspect:

• It is an abstract body of rules and
• Social machinery for securing order in the community.

Usually, the various schools of jurisprudence, instead of recognizing both these aspects, emphasize on one or the other. The various interpretations are as under

Analytical jurisprudence is the abstract theory of law, which tries to to discover the elements of pure science in order to make jurisprudence a nor universally applicable truth. According to this theory, it is better to base 19.

It not on the shifting sands of individual preference, of particular ethical or sociological views, but on sound principles that are universally acceptable.

Sociological jurisprudence brings to fore the limitations of pure science as related to law. It propounds instead that since law is made to solve certain problems, it is better to understand these problems in order to understand law better.

The teleological school of jurisprudence focuses more on the purpose that a law is made with, since it believes that just collecting facts does not help. Since law is designed by human intellect to solve certain issues, it is better to have an understanding of those, in order to understand a law properly.

Different authors hold the following differing views regarding jurisprudence –

According to Salmond, jurisprudence means the science of law. He said that jurisprudence in this sense can be further divided into three streams: civil jurisprudence, international jurisprudence, and natural jurisprudence.

In a slightly narrower sense, the term jurisprudence applies to the study of the science of civil law.

English jurist Jeremy Bentham had used ‘jurisprudence’ in two senses- one as ‘law’ referring to the substance and interpretive history of a given legal norm, consisting of case laws, precedents, and other legal commentary and the other as ‘theory’ or the study of general theoretical questions about the nature of laws and legal systems.

Prof. Julius Stone defined ‘jurisprudence’ as the lawyer’s examination of the precepts, ideals and techniques of the law in the light of knowledge derived from disciplines other than the law.

According to Prof. G.W. Paton, jurisprudence is founded on the effort to create a science that explains the relationship between law, its concepts, and the life of society.

 

Interpretation Act

An Interpretation Act is one that lays down the basic rules as to how meaning should be attributed to the provisions of an Act of Parliament. It streamlines the provisions of various Acts, by defining certain terms at one place so that there is no repetition in the other Acts.

Abet

This has the meaning as defined in Section 120B of the Indian Penal Code, 1860, i.e., to help another in committing a crime. The abettor is punished in the same manner as the person committing the crime.

Affidavit

Instead of giving evidence on oath, in certain cases information might be allowed to be given by way of affirmations or statements or declarations. It has the same importance as information given under oath.

Document

It means and includes any written matter, or matter recorded upon any material by way of letters, figures or marks, or by multiple means.

Indian Law

It includes any Act, ordinance, regulation, rule, order, bye-law or other similar forces of law.

It includes instruments that were considered as law before the commencement of the Constitution, in any Province of India or part thereof, and have thereafter attained the force of law in any Part A State or Part C State or Part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act. Hence, it includes only Indian Acts.

Learn and Read More CS Executive JIGL Question and Answers

General Rules of Construction

These are the rules used to derive meaning from legal instruments, especially contracts and statutes. Generally, since these rules are not codified, most States take them to be merely customary guidance, not as binding guidelines.

Contra Preferentem Rule

According to this rule, if a provision or clause in a contract is seen as ambiguous, the meaning should be so derived as to go against the interests of the person who had the clause included in the contract.

Ejusdem Generis

As per the rule of Ejusdem Generis, when in a law, specific things are listed out and then subsequently, they are referred to generally, the general reference will be applicable to the specifically listed things if they are all of the same kind.

Literal Rule of Interpretation

If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.

Purposive Rule of Interpretation

In Halsbury’s Laws of England, it is stated: “Parliament intends that an ‘enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief.”

Harmonious Construction

When there are two provisions in a statute, that seem to be at odds with each other, they are to be interpreted in a manner that allows effect to be given to both. Any construction that renders either of them inoperative and useless should not be adopted except as a last resort.

Rule of Beneficial Construction

This rule recommends giving the widest meaning possible to the statutes and its provisions so as to include all those eventualities that the makers intended to be included. When there are multiple meanings possible to a section or a term, that meaning which gives the maximum possible relief and furthers the purpose of the legislation should be chosen.

Strict Construction of Penal Statutes

Generally, the rule for the construction of a penal statute says that it should be strictly interpreted, i.e. if there are two possible and reasonable constructions to a penal provision, the Court usually goes with that construction which exempts the subject from penalty rather than the one which imposes a penalty.

Mischief rule or Heydon’s rule

According to this rule, when we interpret statutes, we need to consider some facts –

• what was the rule pertaining to the subject matter before the current statute was made
• what was the mischief or wrong that the common law did not cover till
  then, so that need for a special law was felt
• the solution established by the new statute and the motive behind it.
  These principles were established by Lord Coke in the famous case of Sir John Heydon, hence also known as Heydon’s rule. It was decided that when the literal meaning of the words of a statute is 1st obscured, then seeking the mischief which the act seeks to correct or mitigate would help in its interpretation.

Rule of Harmonious Construction

This rule of interpretation means that any section or part of a statute should be read with reference to the entire act, i.e. the meaning should be construed in entirety, not singularly. If while constructing the meaning of a section, it conflicts with the meaning given in another, in all probability there is an error in interpretation.

Hence, if two sections in the same statute seem to give different meanings or lead to opposite directions, the interpretation should be such as can accommodate both meanings.

Title of the act

There can be a long title and a short title. The long title can be used for understanding the context and brief description of the act, but the short title performs neither of these functions.

For example, the Foreign Exchange Management Act gives us an idea that it contains rules about foreign earnings and currency, but FEMA does not give us any idea unless we already know what the acronym stands for.

Marginal notes

Marginal notes are additional notes provided to the Articles in the Constitution. These are generally resorted to only when the meaning of the Articles is unclear, as these are not used for restricting the provisions of the Articles.

These have generally been seen as being a part of the Constitution. It should be taken care of that the marginal notes should not be allowed to supersede the Articles though.

Preamble

The preamble specifies the intention behind the making of the act, i.e. what is the mischief that the makers of the act sought to correct. It can be one of the key starting points when we begin to understand a statute.

Chapter heads

Chapter heads or separate headings separating the act into parts – This helps dividing the act into smaller parts, which are logically and sequential linked to enhance comprehension. Especially if we need to refer to a particular part, and not the whole of the act, these help us in getting to the right portion without losing valuable time.

Interpretative clauses

These may be portions where definitions or clarifications regarding the inclusions in sections or definitions of words have been given, as used in the statute. These can be inclusive or exhaustive definitions.

Proviso to a section

This gives the treatment of exceptional cases; those which can be called as qualifications, as they are to be treated in a different manner. It is generally in a very language, and without any ambiguity.

It has to be kept in mind though, that it provides the exception to that particular section and cannot be applied as a common rule.

Examples, illustrations or explanations

If within the coverage of the provision of the section they relate to, they can be treated as valuable aids to interpretation, as they simplify the application of the section. They cannot, in any case, be seen as making any extra provisions not mentioned in the section itself.

Schedules

These are there in relation to the act itself as they provide the information mentioned in some part of the act in greater detail, which aids application of the section. They help in making the main act concise and provide a well-organized way of presenting the statute. For example, the XIII Schedule of the Companies Act, 1956.

External or peripheral aids

The external or peripheral aids to interpretation are generally used when the statute is vague or indistinct in meaning. Here, the inner means of interpretation would not serve the purpose and some external means, e.g. the circumstances that prevailed at the time of making of the statute are needed.

Legal citation

It includes the documents, Acts and other authoritative documents referred to as sources of authentic information. Such sources also include precedents, rules and regulations supporting statutes, the text of treaties and even articles written by experts.

Chief Controlling Revenue Authority/Chief Revenue Authority

It means and includes the following

• In States where a Board of Revenue has been formed, that Board;
• In States where there is a Revenue Commissioner, that Commissioner;
• In Punjab, the Financial Commissioner; and
• In other States, authorities that have been nominated in relation to matters enumerated in List I in the Seventh Schedule to the Constitution by the Central Government or the State Government, by notification in the Official Gazette.

Political Agent

The definition includes –

• in relation to any territory outside India, the Principal Officer, who represents the Central Government in that territory; and
•  in relation to any territory within India to which the Act or regulation does not extend, any officer appointed by the Central Government to exercise the powers of a Political Agent under that Act or regulation. (Section 3)

Public nuisance

It implies a public nuisance as defined in the Indian Penal Code. Section 268 of the IPC defines a Public Nuisance as follows “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or advantage.”

Swear

“Swear”, as per Section 62 of the Act, shall include affirming and declaring in the case of persons by law allowed to affirm or declare instead of swearing.

Will

“Will” includes a codicil (an addition or supplement that explains, modifies, or revokes a will or part of a will) and every writing that creates a voluntary posthumous disposition (the transfer or relinquishment of property to another’s care or possession usually by deed or will) of property. (Section 64)

Writing

As per Section 65 of the Act, ‘writing’ includes printing, lithography, photography and other modes of representing or reproducing words in a visible form.

Company Secretary Executive Program JIGL General Clauses Act,1897  Descriptive Questions

Question 1: Explain the ‘Rule of Harmonious Construction’ for interpretation under General Clauses Act, 1897.
Answer:

The ‘Rule of Harmonious Construction’ for interpretation under General Clauses Act, 1897

Rule of harmonious construction: If in an enactment, there are two provisions, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect may be given to both. This is known as harmonious construction.

A statute must be read as a whole and one provision of the Act should be so construed to other provisions in the same Act so as to make a consistent enactment of the whole statue. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute.

In Raj Krishana vs Binod Kanungo, A.I.R 1954 S.C. 202, the Supreme Court observed that it is the duty of the Court to avoid a head-on-clash between two Sections of the same statute. The Court should construe provisions which appear to conflict in such a manner that they harmonise.

Question 2: Explain the “Rule of Beneficial Construction”.
Answer:

The “Rule of Beneficial Construction”

Beneficial construction involves giving the widest meaning possible to the statutes. When there are two or more possible ways of interpreting a section or a word, the meaning which gives relief and protects the benefits which are purported to be given by the legislation, should be chosen.

A beneficial statute has to be construed in its correct perspective so as to fructify the legislative intent. Beneficial construction to suppress the mischief and advance the remedy is generally preferred.

Beneficial Construction of statutes have enormously played an important role in the development and beneficial interpretation of socio-economic legislations and have always encouraged the Indian legislators to make more laws in favor of the people belonging to backward class of people in India.

Question 3: Briefly explain the “Purposive Rule of Interpretation’under the General Clauses Act, 1897.
Answer:

In Halsbury’s Laws of England, it is stated: “Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief.”

The doctrine originates in Heydon’s case where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

• what was the common law before the making of the Act;
• what was the mischief and defect for which the common law did not provide;
• what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and
• the true reason of the remedy and the office of all the judges is always to make such construction as shall –
  • suppress the mischief and advance the remedy; and suppress subtle inventions and evasions for the continuance of the mischief pro private commode (for private benefit); and
  • add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico (for the public good).

Question 4: Where any central legislation or any regulation enacted after the commencement of the General Clauses Act, 1897 repeals any Act, what shall not be affected by such repeal? 
Answer:

Where any Central legislation or any regulation enacted after the commencement of this Act repeals any General Clauses Act 1897 made or yet to be made, unless another purpose exists, the repeal shall not:

• Revive anything not enforced or prevailed during the period at which repeal is effected or;
• Affect the prior management of any legislation that is repealed or anything performed or undergone or;
• Affect any claim, privilege, responsibility or debt obtained, ensued or sustained under any legislation so repealed or;
• Affect any punishment, forfeiture or penalty sustained with regard to any
  offence committed as opposed to any legislation or
• Affect any inquiry, litigation or remedy with regard to such claim, privilege, debt or responsibility and any such inquiry, litigation or remedy may be initiated, continued or initiated and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.w.new

Question 5: Discuss the aim and objects of the General Clauses Act, 1897.
Answer:

The aim and objects of the General Clauses Act, 1897

The General Clauses Act, 1897 can be termed as an Interpretation Act. An Interpretation Act is one that lays down the basic rules as to how meaning should be attributed to the provisions of an Act of Parliament.

It streamlines the provisions of various Acts, by defining certain terms at one place so that there is no repetition in the other Acts. These definitions work as standard definitions or extended definitions of words and expressions (meaning that they have extensive coverage, being defined in an inclusive manner) utilized in multiple Acts.

Thus, such an Act has a very wide application. This could be termed as Substantive Law. It also provides a set of rules to govern some aspects of other enactments and rules for the operability of other statutes. Moreover, they might include other substantive information; definitions and terms that are covered nowhere else.

The main objectives of the General Clauses Act, 1897 are as under:

1. to briefly explain the language used in statutory enactments,
2. to provide uniformity of expressions by defining terms in common use,
3. to state explicitly certain common rules of construction,
4. to ensure usage of certain standard clauses, so that any oversight by a statute might be avoided.

Hence, the Act is to provide for interpretations of several provisions which would otherwise have to be dealt under their respective acts, and at multiple places. By so doing, it avoids multiplicity, as the same meaning of the clauses provided for in this statute can be taken wherever the terms or clauses appear.

It helps the judiciary in sound interpretation and also shortens the content of individual statutes.

Question 6: Explain the provision as to offences punishable under two or more enactments under Section 26 of the General Clauses Act, 1897.
Answer:

The provision as to offences punishable under two or more enactments under Section 26 of the General Clauses Act, 1897

Section 26 of the General Clauses Act, 1897 This section contains provisions related to offences that are punishable under two or more statutes. In such a situation, the accused shall be liable to be prosecuted and punished under either or any of the concerned statutes.

However, it is important to stress that he cannot be punished twice for the same offence. The decision of the Supreme Court in the case of Basir-ul-Huq v. State of West Bengal said that the prosecution could not by itself choose to proceed a particular section of the Indian Penal Code that is free of court sanction when the facts of the case constitute an offence covered under a different section requiring court sanction.

Moreover, Section 26 is applicable when two enactments cover an act or an offence without necessitating any procedural change or an alteration in the
punishment for the act(s).

The section would be applicable even if the procedures provided in the concerned statutes with regard to the prosecution of the offender are markedly different or the prescribed sentences also differ.

Company Secretary Executive Program JIGL General Clauses Act,1897  Descriptive Questions

Question.1: What are the objects of the General Clauses Act, 1897?
Answer:

The objects of the General Clauses Act, 1897

The General Clauses Act, 1897 can be termed as an Interpretation Act. An Interpretation Act is one that lays down the basic rules as to how meaning should be attributed to the provisions of an Act of Parliament.

It streamlines the provisions of various Acts, by defining certain terms at one place so that there is no repetition in the other Acts. These definitions work as standard definitions or extended definitions of words and expressions (meaning that they have extensive coverage, being defined in an inclusive manner) utilized in multiple Acts.

Thus, such an Act has a very wide application. This could be termed as Substantive Law. It also provides a set of rules to govern some aspects of other enactments and rules for the operability of other statutes.

Moreover, they might include other substantive information; definitions and terms that are covered nowhere else.

Question.2: Give the definitions of the following as per this Act –

• Abet
• Affidavit
• Document
• Indian law

Answer:

Abet – This has the meaning as defined in Section 120B of the Indian Penal Code, 1860, i.e., to help another in committing a crime. The abettor is punished in the same manner as the person committing the crime.

Affidavit – Instead of giving evidence on oath, in certain cases information might be allowed to be given by way of affirmations or statements or declarations. It has the same importance as information given under oath.

Document – It means and includes any written matter, or matter recorded upon any material by way of letters, figures or marks, or by multiple means.

Indian Law – Includes any Act, ordinance, regulation, rule, order, bye-law or other similar forces of law.

It includes instruments that were considered as law before the commencement of the Constitution, in any Province of India or part thereof, and have thereafter attained the force of law in any Part A State or Part C State or Part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act. Hence, it includes only Indian Acts.

Question.3: Explain the General Rule of Construction.
Answer:

The General Rule of Construction

General Rule of Construction these are the rules used to derive meaning from legal instruments, especially contracts and statutes. Generally, since these rules are not codified, most States take them to be merely customary guidance, not as binding guidelines.

Usually, when a case comes up before a Court, the presiding judge scrutinizes the circumstances surrounding the provisions of the applicable statute, the related laws, other relevant writings on the subject matter, and the likely object that the provision, clause or Act under consideration is deemed to fulfill.

Thereafter, the meaning derived by the judge would be applicable on that matter, unless questioned and reversed. In case the language of the statute is fairly clear, the requirement
for interpretation cannot arise.

There are two types of constructions of meanings-a strict or literal construction, or a liberal or equitable construction. Hence, a rule of construction is a general code that ascertains how an ambiguous term in a document or statute is to be interpreted and establishes what a court should do in case the intention is ambiguous.

Once a meaning is derived, it will be applicable to all similar cases unless challenged or it becomes outdated or redundant.

Question.4: Explain the following concepts in brief

• Contra proferentem
• Ejusdem Generis

Answer:

These are both rules of construction.

According to Contra Preferentem Rule, if a provision or clause in a contract is seen as ambiguous, the meaning should be so derived as to go against the interests of the person who had the clause included in the contract.

As per the rule of Ejusdem Generis, when in a law, specific things are listed out and then subsequently, they are referred to generally, the general reference will be applicable to the specifically listed things if they are all of the same kind.

If a statute is too vague, it will usually not be implemented, as it cannot have precise premises. In order to eliminate the need for recurring court interventions for deriving the meanings of vague terms in statutes, some States have enacted statutes that specify the meanings of certain terms.

Question.5: What are the different rules of interpretation?
Answer:

The different rules of interpretation

Ordinarily the interpretation of law is deemed to be solely the right of courts of law. As a result of this, they have developed a set of rules for helping them do that, so that there is some uniformity and lack of ambiguity in deriving the meanings of statutes.

Most of these rules are summarized in the rules of interpretation of statutes, which draftsmen usually keep in mind while drafting contracts and such. Such rules help in determining the meaning behind statutes and other legal documents. These rules of interpretation are as under:

General Clauses Act,1897  The Literal Rule of Interpretation: The primary and most important rule of interpretation is called the Literal Rule. This was established in the Sussex Peerage Case, and states that “The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act.

If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.

The words themselves alone do, in such case; best declare the intention of the lawgiver.” However, if there is any doubt as to the meaning of the terms employed in the statute, one can look to the preamble, which, according to Chief Justice Dyer has a two-fold function.

It is both “a key to open the minds of the makers of the Act, and the mischief which they intend to redress”.

General Clauses Act,1897  Purposive Rule of Interpretation: In Halsbury’s Laws of England, it is stated:” Parliament intends that an ‘enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment-corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief.”

The doctrine originated in Haydon’s case where it was decided that for deriving the true meaning of statutes, four things are to be considered:

• what was the common law before the making of the Act;
• what was the mischief and defect for which the common law did not provide;
• what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and
• the true reason of the remedy.

General Clauses Act,1897  Harmonious Construction: The principle of harmonious construction says that the provisions of the Constitution or a statute should be harmoniously interpreted. As per Kelly: “Constitutional provisions should not be construed in isolation from all other parts of the Constitution, but should be construed as to harmonize with those other parts.

A provision of the constitution must be construed and considered as part of the Constitution and it should be given a meaning and an application which does not lead to conflict with other Articles and which confirms with the Constitution’s general scheme.

” When there are two provisions in a statute, that seem to be at odds with each other, they are to be interpreted in a manner that allows effect to be given to both. Any construction that renders either of them inoperative and useless should not be adopted except as a last resort. [Raj Krishna v. Binod].

General Clauses Act,1897  Rule of Beneficial Construction: This rule recommends giving the widest meaning possible to the statutes and its provisions so as to include all those eventualities that the makers intended to be included.

When there are multiple meanings possible to a section or a term, that meaning which gives the maximum possible relief and furthers the purpose of the legislation should be chosen.

This is to ensure that the intention of the legislation is satisfied. One thing to take care of while ensuring this is that the coverage of such liberal construction should not include those not intended to be covered by the Act or the statute.

General Clauses Act,1897  Strict Construction of Penal Statutes: Generally, the rule for the construction of a penal statute says that it should be strictly interpreted,express language of the statute should be respected; hence, a statute can be liberally constructed only when its words allow for it. B i.e.

If there are two possible and reasonable constructions to a penal provision, the Court usually goes with that construction which exempts the subject from penalty rather than the one which imposes a penalty.

So the meaning of a penal statute has to be derived narrowly in favor of the person proceeded against. Hence, in case of penal statutes, if a A reasonable interpretation in a particular case can avoid the penalty, the Court will generally lean towards that construction.

Question.6: Are retrospective amendments to statutes permitted?
Answer:

Where a particular date is not specified, a statute comes into force on the day that it receives the assent of the President. Moreover, the regulation shall come into force instantly on the ending of the day prior to its commencement unless expressly provided.

Where any Central legislation or any regulation made after the commencement of this Act repeals any previous Act such repeal shall not affect anything previously done under the Act.

It will also not affect any claim, privilege, responsibility or debt ensuing under the legislation so repealed, nor will it affect any punishment, forfeiture or penalty in relation to any offense committed under the legislation.

Moreover, any inquiry, litigation or remedy with regard to such claim, privilege, debt or responsibility or any inquiry, litigation or remedy may be initiated or continued; they will not be deemed ineffective after the repeal of the Act.

Relevant case laws are as under:

• Cheviti Venkanna Yadav vs. State of Telangana and Others
• In M/s. Rattan Lal and Co. and another etc. v. The Assessing Authority, Patiala and another, the court observed that after the legislature came into existence, it has the power and the authority to enact any law retrospectively or prospectively as long as the limits of the Constitution are not breached.

Question.7: What are the powers and functionaries provided under the General Clauses Act?
Answer:

These are covered under Sections 14-19 of the General Clauses Act, 1897.

General Clauses Act,1897 Section 14 – Powers given under this are exercisable from time to time, as the need arises. Unless and until a different power is specified by any Central Act or Regulation made after the commencement of this Act, the powers can be exercised as required.

General Clauses Act,1897  Section 15- If any Central Act or Regulation gives the power to appoint any person to fill any office or execute any function, then, unless otherwise provided, such appointment may be made either by name or by virtue of office.

General Clauses Act,1897  Section 16-The power to appoint includes the power to suspend or dismiss also, unless a different intention appears in the statute conferring such a power.

General Clauses Act,1897  Section 17-Substitution of functionaries – In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations.

General Clauses Act,1897 Section 18 In any 1 (Central Act) or Regulation made after the commencement of this Act, in order to make a law applicable to the successors to a post, it shall be sufficient to express its relation to the functionaries or corporations.

General Clauses Act,1897 Section 19 In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient to state that a law that applies to the chief or superior of an office shall apply also to the deputies or subordinates lawfully performing the duties of that post instead of their
superior.

Question.8: What does the Act provide regarding orders, rules etc. made under other enactments?
Answer:

Power as to Orders, Rules etc., made under Enactments Section 21 of the General Clauses Act provides the authority to issue additions, amendments, variations or cancellations to notifications, orders, rules or bye-laws already in existence.

It says that where “by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”

Administrative law

Administrative law is the by-product of ever-increasing functions of the Governments like health, education, pollution, inequality etc. As the complexity of these tasks grows, so does the administrative structure around them. This causes a growth in administrative law.

Sources of Administrative Law in India

There are four principal sources of administrative law in India:-

1. Constitution of India
2. Acts/Statutes
3. Ordinances, Administrative directions, notifications and Circulars
4. Judicial decisions

Administrative Discretion

It means the freedom enjoyed by the administrative authority to choose from among various alternatives when it comes to governance. Such choice however, cannot be arbitrary and unreasoned. Once made, it acts like precedence for future reference.

Judicial Control over Administrative Actions

In exercise of their powers, the administration can also make mistakes or there can be an abuse of power. In order to keep a check on these, the Constitution allows for a judicial check on the exercise of such powers by providing a mechanism for redressal. In India, judicial control of administrative action is classified under three heads Constitutional, Statutory and Ordinary or equitable.

Judicial review

Judicial review involves a review of the manner in which the decision has been made, not an appeal from the decision itself; it is concerned with the decision making process. It covers not only the legislative but also the executive or administrative acts.

Learn and Read More CS Executive JIGL Question and Answers

Voidable order

A voidable order is one that is legally valid at its inception, and it remains valid until it is set aside or quashed by the courts, that is, it is legally binding till it is quashed.

Void order

A void order is void ab initio, and hence a nullity.

Constitutional review

Constitutional review means to check whether or not laws within the State confirm to the Constitution. If not, they can be amended to bring them in line with the Constitution. This is possible because the Constitution of India is seen as the supreme source of authority and all the organs of state derive their existence from it.

The provision for judicial review is also made in the Indian Constitution. Hence, if an Act is found in violation of the Constitution, the Court has to declare it unconstitutional and void. Such an Act would then be open for review.

Injunction

An injunction is a measure of preventive remedy. It is a judicial order that bars one from the doing of an act that invades or threatens to invade the rights of another. It restricts both – the commencement of such an act and its continuance. In India, preventive remedies or injunctions are covered under the Specific Relief Act, 1963.

Prohibitory injunction

Prohib Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the plaintiff. It can further be classified as interlocutory or temporary injunction or perpetual injunction.

Temporary injunctions

Temp: Temporary injunctions are those which are to continue until a specified time or until further orders of the court (Section 37 for the Specific Relief Act). It is ordered as an interim measure to preserve the status quo of the situation or the case until it is heard and finally decided.

Perpetual injunction

A perpetual injunction is granted at the conclusion of the proceedings and finally determines the rights of the parties. Such an injunction might not be perpetual. It may be issued for a fixed period, with or without the right to apply for an extension or even for an indefinite period terminable when certain conditions have been complied with by the defendant.

Mandatory injunction

The mandatory injunction prohibits the defendant from continuing with a wrongful act and is also capable of enjoining the defendant to do the act promised.

The Principle of Natural Justice

It is a concept of Common Law. It is derived from the procedural principles developed by judges. Although there exists no specific constitutional requirements regarding this principle, it is one of the foremost requirements of all legal procedures. It is required in order to give faith to the people relying on the legal system.

Rule against bias (nemo judex in causa sua)

This rule says that no person can be a judge in his own case. Here, bias means a presumption that a person cannot make a disinterred decision if he has some involvement or interest in a cause.

Company Secretary Executive Program JIGL Chapter 1 Administrative Law Distinguish Between

Question 1: Differentiate between constitutional and judicial review.
Answer:

Difference between constitutional and judicial review

Constitutional review means to check whether or not laws within the State confirm to the Constitution. If not, they can be amended to bring them in line with the Constitution. This is possible because the Constitution of India is seen as the supreme source of authority and all the organs of state derive their existence from it.

The provision for judicial review is also made in the Indian Constitution. Hence, if an Act is found in violation of the Constitution, the Court has to declare it unconstitutional and void. Such an Act would then be open for review. [Marbury v. Madison]

Judicial Review – This is provided for in the Constitution as a check over administrative action. This is the authority given to the Courts that they can declare void those acts of the legislature and executive that are found in violation of the provisions of the Constitution.

Under this authority, the Court can cause alteration in the statutes. Judicial Review is the power of the highest Court within a particular jurisdiction to invalidate on Constitutional grounds the acts of other Government agencies within its jurisdiction.

The doctrine of judicial review has originated in the American Supreme Court, although there is no explicit Constitutional provision regarding the same. The differences between the two are as follows:

Company Secretary Executive Program JIGL Chapter 1 Administrative Law Descriptive Questions

Question.1: What are administrative laws?
Answer:

Administrative laws

This is the division of law that deals with powers, functions and responsibilities of the various organs of the State administration. Administrative law can be defined variously – There is no single universal definition of ‘administrative law’ because it means different things to different theorists.

Kenneth Culp Davis, a leading American legal scholar on administrative law, defines it as “the law concerning the powers and procedures of administrative agencies, including especially the law governing the judicial review of administrative action.”

Ivor Jennings defined administrative law as “the law relating to administration. It determines the organisation, powers and duties of administrative authorities.” Administrative law is the by-product of ever increasing functions of the Governments.

Since the modern state is essentially a welfare state. Administration in a State requires a collection of complex tasks related to various fields like health, education, pollution, inequality etc. As the complexity of these tasks grows, so does the administrative structure around them. This causes a growth in administrative law.

Question 2: Why is administrative law needed?
Answer:

There are three parts to the structure of a modern State –

• The legislative
• The executive
• The judiciary

Traditionally, the legislative made the laws and statutes for the State, which the executive then implemented. If there arose disputes in the implementation of these laws, the judiciary then would help in the settlement of those.

However, given the pressure on the legislative in the current era, as well as the time-consuming and expensive judicial processes, it was essential to have administrative laws to cover many functional areas.

Administrative law covers the following:

• Policy making
• The execution, administration and adjudication of the law
• Exercise of legislative powers and the issue of rules, bye- laws and orders of a general nature.

Administrative law, hence, can be seen as being exercised by thousands of government officials in the fulfillment of their duties. While such laws make governance of a State easier, there are also provided checks against the abuse of such powers within the State itself, so that private individuals do not suffer at the hands of such officials as are misusing such authority.

Question 3: What are the Sources of Administrative Law?
Answer:

There are four principal sources of administrative law in India:

Constitution of India:

It is the primary source of administrative law. It gives powers to various authorities; at the same time it creates various tribunals and authorities to exercise this power.ibel

Acts/ Statutes:

These Acts made under the Union and State Lists help in several areas of governance and administration.

Ordinances, Administrative directions, notifications and circulars:

Ordinances are orders issued when the legislature is not in session and therefore cannot make laws via the normal route.

If then some urgent situation arises that requires to be addressed by some law, then ordinances are made as temporary law, which are placed before the Parliament when next it sits in session.

Administrative directions, notifications and circulars are issued by the executive to help in the smooth running of the processes of the State under various Acts.

Judicial decisions:

These decisions help in smooth running of the State and act as a check against abuse of power by any entity.

Question 4: What is administrative discretion?
Answer:

Administrative discretion

Administrative Discretion It means the freedom enjoyed by the administrative authority to choose from among various alternatives when it comes to governance. Such choice however, cannot be arbitrary and unreasoned. Once made, it acts like precedence for future reference.

The flexibility of discretion allows the authority to address different situations differently and to respond to urgencies in a prompt and suitable manner. This allows it to make use of a vat repertoire of technical knowledge, expertise and know-how.

This in turn, helps the administration to give the best suited response to any situation. Hence, the principle of discretion allows for change, amendment or abrogation. This allows for the treatment of situations on a case to case basis.

Question 5: Explain judicial control over administrative actions? 
Answer:

Judicial control over administrative actions

Judicial Control over Administrative Actions – In exercise of their powers, the administration can also make mistakes or there can be an abuse of power. In order to keep a check on these, the Constitution allows for a judicial check on the exercise of such powers.

This is done by providing a mechanism for redressal. This is especially needed in a country that bases itself on socialistic and welfare principles. In India, judicial control of administrative action is classified under three heads – Constitutional, Statutory and Ordinary or equitable.

Question 6: Explain statutory review.
Answer:

Statutory review

It is a means of judicial control over administrative actions. The method of statutory review can be divided into two parts:

Statutory Appeals: Certain Acts provide for appeals from the decisions of statutory tribunals to the High Court. This can be done on points of law.

Reference to the High Court: There are several statutes, which provide for a reference by an administrative tribunal to the High Court. If the party to a case is unhappy with the statement of the case, he may appeal to the High Court, and if the Court thinks fit, it may ask the tribunal to amend the procedure undertaken in that case.

Question 7: What are the points to be kept in mind regarding judicial review?
Answer:

The points to be kept in mind regarding judicial review

Some important points to be kept in mind regarding it are – benounenu Judicial review involves a review of the manner in which the decision has been made, not an appeal from the decision itself; it is concerned with the decision making process. de erit acieri, mut nivelt word-wool bre It covers not only the legislative but also the executive or administrative acts.

As far as executive acts are concerned, the court sees whether they are within the scope of authority or power conferred on the authority exercising the power or not. Wherever the act of executive is found to be ultra virus the Constitution or the relevant Act, it is declared void.

Such intervention comes when there is abuse of power or discretion by the executive or administrative.

The court is to confine itself to the question of legality. Its concern should be whether any of the following occurred –

1. Excess of powers given to an authority
2. An error of law
3. A breach of rules of natural justice
4. Unreasonable decision
5. Abuse of power [Mansukhlal Vithaldas Chauhan v State of Gujarat].

Question 8: When an authority required to observe natural justice in making an order fails to do so, should the order made by it be regarded as void or voidable?
Answer:

A voidable order is one that is legally valid at its inception, and it remains valid until it is set aside or quashed by the courts, that is, it is legally binding till it is quashed. On the other hand, a void order is void ab initio, and hence a nullity.

Usually, a violable order cannot be challenged in a collateral or secondary proceeding. It has to be set aside or declared null and void by the court in separate proceedings for the purpose. Suppose, a person is prosecuted criminally for infringing an order, he cannot then plead that the order is voidable. He can raise such a plea if the order is void.

In India, commonly the judicial opinion has been that a quasi-judicial order made without following natural justice is void and nullity [Nawabkhan v. Gujarat].

Question 9: What are the main characteristics of statutory corporations?
Answer:

The main features of Statutory Corporations are as follows:

• Freedom from government regulations, as it has its own set of governing rules, which are given in the statute that forms it.
• High degree of operating and financial flexibility.
• Balance between the autonomy and flexibility as enjoyed by private enterprises and responsibility to the public as represented by elected members and legislators, representing various sections. of a valid
• For the validity of the corporation contract, the requirements contract laid down in Article 299 are not required to be complied with. There are, however, several drawbacks to this structure –
• Difficulty of balancing autonomy of the corporation with public accountability.
• Since it is not a department or organ of the Government, its employees are not regarded as Government servants and therefore they are not entitled to the protection of Article 311 of the Constitution.
• However, a public corporation is included within the meaning of ‘State’ under Article12 and therefore the Fundamental Rights can be enforced against it.
• Moreover, since Public corporations are included within the meaning of ‘other authorities’ and therefore it is subject to the writ jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution.
• As per the requirements of the principle of vicarious liability, a corporation is liable to pay damages for wrongs done by its officers or servants. It is liable even for torts requiring a mental element as an ingredient, e.g. malicious prosecution. In India, local authorities like Municipalities and District Boards have been held responsible for the tort committed by their servants or officers.

Question 10: Explain the stages of judicial review.
Answer:

Judicial review is exercised at two stages:

Judicial review at the stage of delegation of discretionary power – If the law confers vague and wide discretionary power on any administrative authority, it may be declared ultra vires specific Articles of the Constitution, viz, Articles 14, 19 and other provisions. In such a situation, the court can control the giving of such discretion on the ground of excessive delegation [Dr. Ram Manohar v. State of Delhi].

Judicial review at the stage of exercise of discretion – No administrative action can go against fundamental rights, even if the action is done under exercise of discretionary powers. So even if an authority cites discretionary authority as the source of its power but does something that is unconstitutional, the action can still be declared void.
The courts in India have summed up all indiscretions under two broad heads:

1. Improper use of discretion or abuse of discretion.
2. Authority has not exercised its discretion at all- ‘non-application of mind’.

Question 11: When is Abuse of discretion deemed to occur?
Answer:

It occurs in the following cases –

Mala fides: This happens in the case of use of the discretionary power by the authority with bad faith or dishonest intention. In such a situation, the action taken in bad faith is quashed by the court, since it is taken as abuse of discretion. In some cases, it would also be taken as fraud. [Tata Cellular v. Union of India].

Irrelevant considerations: If an Act gives authority for any purpose, it is to be used for that purpose and for that purpose only. Such contrary use of powers delegated by a statute is to be quashed by the courts. Moreover, in exercise of such power, if the authority so exercising it, considers factors, circumstances or events that may be

said to be wholly irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action is deemed to be void, as abuse of discretion makes the action devoid of authority.

Leaving out relevant considerations: If any relevant facts or considerations are left out, the action taken by the authority wielding such power will be vitiated.

Arbitrary orders: Orders made by such authorities cannot be arbitrary or different in similar situations. Such orders can solely be based on hard fact, not the vagaries of the person in the seat of authority.

Improper purpose: The use of such power for a purpose other than that intended will also amount to abuse of discretion.

Colourable exercise of power: When the ostensible purpose for which the power has been used hides the real purpose, it is taken as colourable exercise of the discretionary power and is deemed void.

Non-compliance with procedural requirements and principles of natural justice: If the procedure laid down in the statute is mandatory and not discretionary, if not followed, it will vitiate the act itself.

Exceeding jurisdiction: An action of the authority that is in excess of its powers is deemed to be ultra vires, since the statute itself does not allow for it.
Space to write important points for revision

Question 12: When is Non-application of mind deemed to occur?
Answer:

It occurs in the following cases-

Acting under direction: Where the authority taking an action is acting not on its own volition but on the instructions given by a superior authority, it is taken as non-exercise of power by the authority. Such an action is considered as non-application of mind [Commissioner of Police v. Gordhandas Bhanji]

Self-restriction: If the authority itself restricts its powers by declaring some other rules to be fulfilled before it can exercise its powers, an action taken under these restrictions can also be termed as bad.

Acting mechanically and without due care: When an authority acts without care, not exercising its discretion to look deeper into any matter, such an action is termed as a bad action.

Question 13: What is Ordinary or Equitable review?
Answer:

Ordinary or Equitable review

Ordinary or equitable review is a remedy available against the administration. Under this, appeals can be made to the ordinary courts. These remedies include:

Injunction – An injunction is a measure of preventive remedy. It is a judicial order that bars one from the doing of an act that invades or threatens to invade the rights of another. It restricts both – the commencement of such an act and its continuance.

In India, preventive remedies or injunctions are covered under the Specific Relief Act, 1963. It can be issued in cases where jurisdiction has been wrongly exercised or where the authority exercising it is the wrong authority. Injunctions can be issued against both administrative and quasi-judicial bodies. They are of two types – prohibitory and mandatory.

Prohibitory Injunction: Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the plaintiff. It can further be classified as interlocutory or temporary injunction or perpetual injunction.

Interlocutory or temporary injunction: Temporary injunctions are those which are to continue until a specified time or until further orders of the court (Section 37 for the Specific Relief 10 Act).

It is ordered as an interim measure to preserve the status quo of the situation or the case until it is heard and finally decided. It may be granted at any stage of a suit and comes under the Civil Procedure Code.

Such injunctions are necessarily provisional in nature. It does not finally declare or determine a right. The granting of temporary injunction is a discretionary right in the hands of the court.

Perpetual injunction: A perpetual injunction is granted at the conclusion of the proceedings and finally determines the rights of the parties. Such an injunction might not be perpetual. It may be issued for a fixed period, with or without the right to apply for Feeder an extension or even for an indefinite period terminable when certain conditions have been complied with by the defendant.

Mandatory injunction: This is generally issued to prevent the breach of an obligation or to compel the performance of certain. This too, is a discretionary power. Such an injunction prohibits the defendant from continuing with a wrongful act and is also capable of enjoining the defendant to do the act promised.

Declaratory Action – In some cases where wrong has been done to a person by an administrative act, declaratory judgments may be the appropriate remedy. Also known as a

Declaratory Decree, it is a judicial order issued by the court declaring rights of the parties without giving any further relief. This is done to remove the existing doubts about the rights of parties. It is an equitable remedy. However, it is discretionary in the hands of the Court and cannot be claimed as a matter of right by either party.

Action for damages – If any injury is caused to an individual by wrongful or negligent acts of administrative authority, the aggrieved person can file suit for the recovery of damages from the Government concerned, Central or State.

Question 14: What are the Principles of Natural Justice?
Answer:

The Principles of Natural Justice

The Principle of Natural Justice is a concept of Common Law. It is derived from the procedural principles developed by judges. Although there exist no specific constitutional requirements regarding this principle, it is one of the foremost requirements of all legal procedures.

It is required in order to give faith to the people relying on the legal system. In India, the principles of natural justice are implied in Articles 14 and 21 of the Constitution. Previously, this principle was said to have included two rules: rule against bias and rule of fair hearing. Over the years, many sub-rules were added.

Rule against bias (nemo judex in causa sua): This rule says that no person can be a judge in his own case. Here, bias means a presumption that a person cannot make a disinterred decision if he has some. involvement or interest in a cause. Hence, this rule has two main aspects- one, the person judging a case must not have any direct personal stake in the case in hand and two, there must not be a probability of bias. Bias can be of the following three types:

Pecuniary bias:

This involves a financial interest in the subject matter. The quantum of interest does not matter; even an insufficient amount will disqualify a person from acting as a Judge in a particular case.

Personal bias:

This may come in various forms – the judge being on friendly terms with either of the parties, or having familial, professional or business ties or even bias against the parties in the form of hostility towards one of the parties to a case. Bias can exist in favour of, or against a party.

Whatever be the situation, it will create grounds for disqualification for a person to act as a Judge [Mineral Development Ltd. V. State of Bihar]. Actual proof of prejudice is inessential, even if there exists reasonable ground for assuming the possibility of bias, it is sufficient to create a disqualification against the judge.

Subject matter bias: 

This ground requires a proximate and direct connection between the judge and the case in issue. Hence, a strong likelihood of bias must exist in this situation. It can be classified into four categories – (1) Partiality or connection to the issue (2) Departmental bias (3) Prior utterances and pre-judgment Of issues (4) Acting under dictation.

Rule of fair hearing (audi alterem partem): 

It literally means ‘to give a hearing to the other side’. According to this rule, both sides to a case should be heard before passing the order. It also requires that both parties should be given sufficient opportunity to present their respective cases.

This rule involves the following:

Right to notice:

A party to a case can respond only when he has notice that a case has been filed against him. Hence, each party has a right to receive notice of all actions taken by the other party. Hence, the right to receive notice is inherent. Notice is the first step in the initiation of a case.

Right to present case and evidence:

Both parties have to be given full opportunity to present their side of the case. This includes presentation of evidence too. This right includes also both oral and written representations.

Right to rebut adverse evidence:

This is the opportunity given to a party to counter the evidence produced against him. This can be done in two ways –

Cross-examination:

Examination of a witness presented by a party by the counter party is known as cross-examination. Its main purpose is to detect deception in the statement of the witness.

Legal Representation:

The right to legal representation is essential in certain cases; if this right is not ensured, then a violation of natural justice is presumed. This is especially true in cases where the case involves a question of law or a subject matter which is complicated and includes some legal technicality or where the person is illiterate or expert evidence is on record or the donde prosecution is conducted by legally trained persons, the denial of legal representation to the other party will amount to violation of natural justice because in such conditions the party may not be able to present his side of the case effectively.

Disclosure of evidence:

This is essential because a party cannot fully present his case unless he is allowed to disclose all evidence that he has accumulated.

Speaking orders:

A speaking order is an order that explains the decision. Such an order is more acceptable to the parties. It also provides a check on the administrative powers because the decisions need to be based on logical and coherent reasons. Such a requirement also bars arbitrariness of decisions [Sunil Batra v. Delhi administration]. Space to write important points for revision

Question 15: What are the exceptions to natural justice?
Answer:

Exceptions to Natural Justice

Ordinarily, anyone affected by any action of the administrative can claim a right to natural justice. However, such a right is waived off in the following circumstances –

Statutory Exclusion:

Usually a statute either expressly includes the principle of natural justice or it is deemed to be present, if nothing is said in the Act. However, the principle of natural justice may be excluded by an express statutory beyond reproach; since in India the provision. This action is not Parliament is not supreme and therefore statutory exclusion is not final.

Emergency:

In exceptional cases of urgency or emergency where immediate action is required to prevent wrongdoing or harm, prompt and preventive action is required. In such cases, the principle of natural justice need not be observed, on grounds of expediency and in the public interest [Maneka Gandhi v. Union of India].

Interim disciplinary action:

Since such actions are generally preventive and are passed in urgent matters, the rules of natural justice can be bypassed [Abhay Kumar v. K. Srinivasan].

Academic evaluation:

This is true only for non-disciplinary matters, for example, if a student is judged academically and found wanting, he can be removed by an institution, since they have academic standards to maintain.

Impracticability:

Where the case relates to a large number of people, it is not practicable ant to give all of them the opportunity of a hearing. In such a situation, the court does not insist on the observance of the rules of natural justice [P. Radhakrishna v. Osmania University].

Question 16: Comment on the Liability of the State or Central Government in Contract or otherwise as a result of a tort.
Answer:

The liability of the government can arise either from a contract or a tort. The Constitution of India permits the central and the state governments to enter into contracts. Such contracts require the following conditions to be fulfilled:

1. The contract with the Government is compulsorily to be made in the name of the President or the Governor, according to whether it is with the Central or a State Government.
2. It should be in writing and properly executed.
3. A person duly authorized by the President or the Governor of the State should execute the contract, and it will be assumed as if the government has directly done so.

Under Article 299 (2) of the Constitution, neither the President nor the Governor shall be personally liable in respect of such contracts made or executed for the purposes of the Government of India.

The Supreme Court has made it clear that the provisions of Article 299 (1) are mandatory and therefore any contract in contravention is void and hence cannot be ratified.

Effect of a valid contract with Government

A valid contract with the government under the Indian Contract Act provides the remedy for its breach too a suit for damages. With the case of Gujarat State Financial Corporation v. Lotus Hotels, the Supreme Court took a new stand that the writ of mandamus can be issued against the Government or its instrumentality also, for the enforcement of contractual obligations. [Also, Shrilekha Vidyarathi v. State of U.P.J.

Quasi-Contractual Liability

According to Section 70 of the Indian Contracts Act, 1872, where a person lawfully does anything for another person or delivers anything of value to him, and such other person enjoys the benefit thereof, the latter is bound to compensate the former in respect of or to restore, the thing so done or delivered.

This includes even the Government, which will be liable to pay compensation for the work actually done or services rendered to the State. This is a liability that arises on equitable grounds even though there exists no express agreement or contract.

Suit against State in Torts

A tort is a civil wrong that arises out of a breach of a civil duty or of a non-contractual obligation, the only remedy for which is damages. When one is responsible for the act of another, it is called vicarious liability.

For example, when the servant of a person harms another by his act, the servant as well as his master are both held accountable for the act done by the servant. Similarly, sometimes the state is held vicariously liable for the torts committed by its servants in the exercise of their duty.

The State would of course not be liable if the acts done were justified by a necessity for protection of life or property. Acts such as judicial or quasi-judicial decisions done in good faith would also be exempt.

“Article 300(1) of the Constitution provides that –

The Government of India may sue or be sued by anyone in the name of the Union of India and,  the Government of a State may sue or be sued by the name of the State.

Also, the Centre and the States may be sued in respect of their respective affairs only, meaning that for the affairs of the State the Centre may not be sued and vice versa.

In the case of State of Rajasthan Vs. Vidyawati, a judgement was given on the liability of the State in cases of tort. In this case, the driver of a Government jeep hurt a person walking on the footpath by the side of a public road. At the time, the jeep was being used by the Collector of Udaipur.

On the death pf the injured, the legal representatives of the deceased sued the State of Rajasthan and the driver for compensation/damages, claiming against the tort committed by the driver.

The court discovered that the driver was rash and negligent while driving and the accident was caused due to his negligence. The liability against the State was decreed by the trial court, and also by the High Court.

Moreover, on appeal against the High Court judgment, the appeal was dismissed by the Supreme Court.

In another case of N. Nagendra Rao Vs. State of AP, the court laid emphasis on the concept of a ‘Welfare State’, saying, “In (a) Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order, but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital.

The demarcating line between sovereign and non-sovereign powers, for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.”

It clearly implies that The Court linked together the State and the officers: ahot of “The determination of vicarious liability of the State being linked with (the) negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable, the State cannot be sued.”

Question 17: Write a note on damages to be paid by State for the actions of a public servant.
Answer:

Damages to be paid by State for the actions of a public servant

In case of negligence by a public servant in exercise of his duties, the State shall be made vicariously liable for the wrongful acts of its servants, the State being the employer here.

In the case of Lucknow Development Authority v. M.K. Gupta, 1994, the Supreme Court observed that “where a public servant by malafide, oppressive and capricious acts in discharging official duty causes injustice, harassment and agony to common man and renders the State or its instrumentality liable to pay damages to the person aggrieved from public fund, the State or its instrumentality is duly bound to recover the amount of compensation so paid from the public servant concerned.”

Liability of the Public Servant

The liability of the State is different from the liability of its officers. As far as the liability of individual officers is concerned, if they act in an ultra vires manner or illegally, they are personally liable for their actions.

The ordinary law of contract or torts or criminal law governs that liability, as it would govern a private individual. An officer acting in the discharge of his duty without bias or malafides could not be held personally liable for the loss caused to another person, as he was acting in the course of his duty or employment. This would be true if such acts are not ultra vires his powers.

Liability of Public Corporation

The term ‘Statutory Corporation’ (or Public Corporation) means organisations that are incorporated under special Acts of the Parliament/State Legislative Assemblies. All rules regarding its constitution, structure and conduct are given in the statute that brings it to being.

It may be noted that more than one corporation can also be established under the same Act. State Electricity Boards and State Financial Corporation are examples of this. More examples would be the Life Insurance Corporation, Food Corporation of India (FCI), Oil and Natural Gas Corporation (ONGC), Air India, State Bank of India, Reserve Bank of India, Employees State Insurance Corporation, Industrial Finance Corporation of India (IFCI), etc.

Question 18: What is a public corporation?
Answer:

Public corporation

The term ‘Statutory / Public Corporation’ refers to organizations that are incorporated under special Acts of Parliament or the State Legislative Assemblies. The statute bringing it into existence also specifies its management pattern, its powers, functions, the field of activity, its inner rules and regulations, and its status regarding government departments, etc.

An Act is also at liberty to establish more than one corporation. For example, State Electricity Boards and State Financial Corporations, Public Corporation Life Insurance Corporation, Food Corporation of India (FCI), Oil and Natural Gas Corporation (ONGC), Air India, State Bank of India, Reserve Bank of India, Employees State Insurance Corporation.

Statutory Corporations have the following characteristics:

• Formed under a special Act of Parliament or State Assembly
• Autonomous governance is Answerable to the Parliament or State Assembly, depending on which statute formed it – Central or State level.
• Separate legal existence.
• Professionally managed by a Board nominated by the government.
• Financially independent although access to government loans is allowed in times of need.
• Recruitment as per by its own Board, according to the conditions specified in the Statute that formed it.

Question 19: What are the benefits of a Public Corporation?
Answer:

The chief benefits of a Public Corporation are as follows –

• Independent of government regulations and controi
• High degree of operating and financial flexibility
• Separate entity
• Autonomy and independence in decision making
• Protection of public interest
• Minimum bureaucracy
• Economies of scale
• More employee-centric
• Faster decision making
• Ease of raising funds
• Better prices for public

Question 20: Explain in brief ‘Audi Alterum Partem Rule’ under the Administrative law.
Answer:

Rule of fair hearing (audi alterem partem):

It literally means ‘to give a hearing to the other side’. According to this rule, both sides to a case should be heard before passing the order. It also requires that both parties should be given sufficient opportunity to present their respective cases.

This rule involves the following:

Right to notice:

A party to a case can respond only when he has notice that a case has been filed against him. Hence, each party has a right to receive notice of all actions taken by the other party. Hence, the right to receive notice is inherent. Notice is the first step in the initiation of a case.

Right to present case and evidence:

Both parties have to be given full opportunity to present their side of the case. This includes presentation of evidence too. This right includes also both oral and written representations.

Right to rebut adverse evidence:

This is the opportunity given to a party to counter the evidence produced against him.

This can be done in two ways:

Cross-examination:

Examination of a witness presented by a party by the counter party is known as cross-examination. Its main purpose is to detect deception in the statement of the witness.

Legal Representation:

The right to legal representation is essential in certain cases; if this right is not ensured, then a violation of natural justice is presumed.

This is especially true in cases where the case involves a question of law or a subject matter which is complicated and includes some legal technicality or where the person is illiterate or expert evidence is on record or the prosecution is conducted by legally trained persons, the denial of legal representation to the other party will amount to violation of natural justice because in such conditions the party may not be able to present his side of the case effectively.

Question 21: Explain in brief doctrine of ‘Nemo Judex in Causa Sua’.
Answer:

Doctrine of ‘Nemo Judex in Causa Sua’

Nemo Judex in Cause Sua is Rule against bias, According to this rule no person should be made a judge in his own cause. Bias means an operative prejudice whether conscious or unconscious in relation to a party or issue.

It is a presumption that a person cannot take an objective decision in a case in which he has an interest. The rule against bias has two main aspects-one, that the judge must not have any direct personal stake in the matter at hand and two. there must not be any real likelihood of bias.

Bias can be of the following three types:

Pecuniary bias:

The judicial approach is unanimous on the point that any financial interest of the adjudicatory authority in the matter, howsoever small, would vitiate the adjudication. Thus a pecuniary interest, howsoever insufficient, will disqualify a person from acting as a Judge.

Personal bias:

There are number of situations which may create a personal bias in the Judge’s mind against one party in dispute before him. He may be friend of the party, or related to him through family, professional or business ties.

The judge might also be hostile to one of the parties to a case. All these situations create bias either in favour of or against the party and will operate as a disqualification for a person to act as a Judge.

Subject matter bias:

A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute. To vitiate the decision on the ground of bias as for the subject matter there must be real likelihood of bias.

Question 22: Enumerate in short the exceptional circumstances of the application of natural justice under Administrative Law. 
Answer:

The exceptional circumstances of the application of natural justice under Administrative Law

Though the normal rule is that a person who is affected by administrative action is entitled to claim natural justice, that requirement may be excluded under certain exceptional circumstances as mentioned below:

Statutory Exclusion:

The principle of natural justice may be excluded by the statutory provision. Where the statute expressly provides for the observance of the principles of natural justice, the provision is treated as mandatory and the authority is bound by it.

Where the statute is silent as to the observance of the principle of natural justice, such silence is taken to imply the observance thereto.

Emergency:

In exceptional cases of urgency or emergency where prompt and preventive action is required the principles of natural justice need not be observed. However, the determination of the situation requiring the exclusion of the rules of natural justice by the administrative authorities is not final and the court may review such determination.

Interim disciplinary action: The rules of natural justice are not attracted in the case of interim disciplinary action.

Academic evaluation: Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of pre-decisional hearing is excluded.

Impracticability: Where the authority deals with a large number of person it is not practicable to give all of them opportunity of being heard and therefore in such condition the court does not insist on the observance of the rules of natural justice.

Question 23: Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution. Comment.
Answer:

Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution.

The biggest check over administrative action is the power of judicial review. Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution.

Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that jurisdiction.

The power of judicial review controls not only the legislative but also the executive or administrative act. The Court scrutinizes the executive act for determining the issue as to whether it is within the scope of authority or power conferred on the authority exercising the power.

Where the act of executive or administration is found ultra-virus the Constitution or the relevant Act, it is declared as such and, therefore, void. The Courts attitude appears to be stiffer in respect of discretionary powers of the executive or administrative authorities.

The Court is not against the vesting of discretionary power in the executive, but it expects that there would be proper guidelines for the exercise of power. The Court interferes when the uncontrolled and unguided discretion is vested in the executive or administrative authorities or the repository of the power abuses its discretion.

Question 24: Under what circumstances the decision exercised by administrative authorities are treated as abuse of discretion? Explain any four. 
Answer:

The decision exercised by administrative authorities are treated as abuse of discretion in the following circumstances:

Mala fides: If the discretionary power is exercised by the authority with bad faith or dishonest intention, the action is quashed by the court. Malafide exercise of discretionary power is always bad and taken as abuse of discretion.

Irrelevant considerations: If a statute confers power for one purpose, its use for a different purpose is not regarded as a valid exercise of power and is likely to be quashed by the courts. If the administrative authority takes into account factors, circumstances or events wholly irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action is vitiated.

Leaving out relevant considerations: The administrative authority exercising the discretionary power is required to take into account all the relevant facts. If it leaves out relevant consideration, its action will be invalid.

Arbitrary orders: The order made should be based on facts and cogent reasoning and not on the whims and fancies of the adjudicatory authority.

Improper purpose: The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose it will amount to abuse of power.

Colourable exercise of power: Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been given but in reality for some other purpose, it is taken as colourable exercise of the discretionary power and it is declared invalid.

Non-compliance with procedural requirements and principles of natural justice: If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or directory is decided by the court. Principles of natural justice are also required to be observed.

Exceeding jurisdiction: The authority is required to exercise the power within the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void.

Question 25: What are the principal sources of Administrative Law in India? Explain in brief.
Answer:

There are four principal sources of administrative law in India:

Constitution of India:
It is the primary source of administrative law. It gives powers to various authorities; at the same time it creates various tribunals and authorities to exercise this power.

Acts/Statutes:
These Acts made under the Union and State Lists help in several areas of governance and administration.

Ordinances, Administrative directions, notifications and circulars:

Ordinances are orders issued when the legislature is not in session and therefore cannot make laws via the normal route. If then some urgent situation arises that requires to be addressed by some law, then ordinances are made as temporary law, which are placed before the Parliament when next it sits in session.

Administrative directions, notifications and circulars are issued by the executive to help in the smooth running of the processes of the State under various Acts.

Judicial decisions:

These decisions help in smooth running of the State and act as a check against abuse of power by any entity.

Question 26: Discuss the main feature of Statutory Corporation under Administrative Law.
Answer:

The main features of Statutory Corporations are as follows:

• Freedom from government regulations, as it has its own set of governing rules, which are given in the statute that forms it.
• High degree of operating and financial flexibility.
• Balance between the autonomy and flexibility as enjoyed by private enterprises and responsibility to the public as represented by elected members and legislators, representing various sections.
• For the validity of the corporation contract, the requirements of a valid contract laid down in Article 299 are not required to be complied with.

There are, however, several drawbacks to this structure:

• Difficulty of balancing autonomy of the corporation with public accountability.
• Since it is not a department or organ of the Government, its employees are not regarded as Government servants and therefore they are not entitled to the protection of Article 311 of the Constitution.
• However, a public corporation is included within the meaning of ‘State’ under Article 12 and therefore the Fundamental Rights can be enforced against it.
• Moreover, since Public corporations are included within the meaning of ‘other authorities’ and therefore it is subject to the writ jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution.
• As per the requirements of the principle of vicarious liability, a corporation is liable to pay damages for wrongs done by its officers or servants. It is liable even for torts requiring a mental element as an ingredient, e.g. malicious prosecution.
  In India, local authorities like Municipalities and District Boards have been held responsible for the tort committed by their servants or officers.

Question 27: Administrative law is the by-product of over increasing functions of the Governments. Now, States have no longer policies limited to maintaining internal order and external threats. Examine.
Answer:

Administrative law is the by-product of over increasing functions of the Governments. Now, States have no longer policies limited to maintaining internal order and external threats.

“Administrative law is the by-product of ever increasing functions of the Governments.” Since the modern state is essentially a welfare state, administration in a State requires a collection of complex tasks related to various fields like health, education, pollution, inequality etc.

As the complexity of these tasks grows, so does the administrative structure around them. This causes a growth in administrative law. It includes, within its fold, the following as well, in addition to the essential maintenance of internal order and mitigation of external threats:

Improving the social and economic condition of its citizens. Development activities in the fields of health, education, pollution, inequality etc. New and evolving functions as the role of State also expands in relation to th current demands on administration, as the collective consciousness of the people undergoes positive changes.

Strict liability or absolute liability

This liability arises when some harm takes place without any intention or negligence on the part of the defendant, even then he is liable for it. This can happen in any of the following cases

• Unavoidable accidents
• Unavoidable mistake [Rylands v. Fletcher]

Battery in Law Relating To Torts

Battery implies the unlawful beating of another. It includes every willful, angry, violent or negligent touching of another’s person or clothes, or anything attached to his person or held by him.

Assault in Law Relating To Torts

It is a threatened or attempted physical attack by someone who appears to be able to cause bodily harm if not stopped. It indicates an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it.

Slander in Law Relating To Torts

Any defamation that is expressed in an ephemeral or transitory mode is usually considered slander. If it is said in a form that cannot be retained for future references, it is slander.

Libel in Law Relating To Torts

Like slander, libel also refers to statements or opinions that damage another person’s reputation. The difference is that libel takes the form of fixed, relatively permanent or printed material rather than verbal assaults.

Learn and Read More CS Executive JIGL Question and Answers

Damnum sine injuria in Law Relating To Torts

‘Injury’ here means ‘physical injury’ and ‘damnum’ means ‘financial loss’ or ‘loss of property’. Damnum sine injuria implies a legal wrong that causes no actual damage or injury to anyone. For example, a financial wrong caused by one could result in liability to the other, even though no physical harm has been caused to the other.

Injuria sine damnum in Law Relating To Torts

Injuria sine damnum implies a legal wrong that causes ho actual damage or injury to anyone. For example, someone got hurt by another’s vehicle due to his own fault; it is not the other person’s liability, so no financial loss is caused to him.

Tort in Law Relating To Torts

The word ‘tort’ implies a civil wrong. As per Section 2(m) of the Limitation Act, 1963, “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

Mens rea in Law Relating To Torts

“Actus non facit reum nisi mens sit rea” i.e. the act itself creates no guilt in the absence of a guilty mind. It just says that the act that is to be held as tort should be done with a guilty mind in order for the liability to be held against the perpetrator. It does not necessarily mean a criminal intent; it suffices even if the act is done either with wrongful intention or negligence.

Vicarious Liability for Wrongs committed by others

Responsibility in such cases is imputed by law on grounds of social policy or expediency. These case involve liability of master for the acts of his servant.

Re-caption of goods in Law Relating To Torts

This is usually done in the case of cattle; when they have been unlawfully detained by another. The actual owner can retake possession peacefully and by reasonable means.

Distress Damage Feasant in Law Relating To Torts

An occupier of a land has the right to keep cattle doing damage to his lands confined till he is paid damages by the owner of the cattle.

Bodily harm in Law Relating To Torts

It is an act or speech of defendant, intended to cause physical harm to the plaintiff. It is termed as a tort when it actually does cause that harm.

False Imprisonment in Law Relating To Torts

Restricting a person’s liberty without sufficient lawful justification, even if it is for a short duration of time. It implies placing unauthorized restraint over a person’s body. If a person is confined within certain limits so that he cannot move about freely we can say he has been falsely imprisoned.

It can even occur when he is restrained from leaving from an open space; it is not essential that he be imprisoned within four walls.

Re-entry on land in Law Relating To Torts

When someone is dispossessed of his land illegally, the person so dispossessed has the right of re-entry, but he can do so in a reasonable and peaceful manner.

Malicious Prosecution in Law Relating To Torts

Malicious prosecution implies initiating judicial proceedings against another, out of spite and without reasonable or justified cause. Such proceedings terminate in favour of that other person (defendant), but by that time, have caused damage to his reputation, personal freedom or property.

Nervous Shock in Law Relating To Torts

This branch of law is comparatively of recent origin. It provides relief when a person may get physical injury not by an impact, e.g., by stick, bullet or sword but merely by the nervous shock through what he has seen or heard.

Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place as a result of the emotional disturbance, fear or sorrow.

The ever-growing role of tortious liability in Law Relating To Torts

The case of Jay Laxmi Salt Words (P) Ltd vs State Of Gujarat, 1994 stresses the role of this liability. Speaking on this case, the Supreme Court of India observed that ” Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently.

Therefore, it would be primitive to class strictly or close finality the ever-expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortious liability by courts is more conducive”

Hence, the role of torts and the ensuing liability is one which cannot be stressed enough.

Role of the State in Law Relating To Torts

In every society, the numerous interactions between the State and the citizens often raise legal issues, many of which fall within the area of the law of torts. A tort can be defined as a civil wrong, (not resulting from a breach of contract or a breach of trust or other wrong elsewhere defined or structured).

The remedy for such a wrong is unliquidated damages. As per Article 300(1) of the Constitution, the Government of India may sue or be sued in the name of the Union of India and the Government of a State may sue or be sued in the name of the State.

This can be done in relation to their respective affairs. However, this shall be subject to any provisions which may be made by an Act of Parliament or of the Legislature of such State, on such matter, and in which case, it shall prevail.

The case of State of Rajasthan Vs. Vidyawati was the first post – Constitution judgment on Liability of the State in matters of tort, as far as the Supreme Court is concerned. In this case the driver of a Government jeep, which was being used by the Collector of Udaipur, knocked down a person walking on a public footpath, resulting in the death of the injured.

Subsequently, the legal representatives of the deceased sued the State of Rajasthan and the driver for compensation / damages for the tort committed by the driver.

Although the court found that the driver was rash and negligent in driving the jeep and that caused the accident, the suit was decreed by the trial court as well as by the High Court.

The appeal against the High Court judgment was dismissed by the Supreme Court, which held that “The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by Common Law.

It is clear from what has been said above, that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858.”

Torts committed by a govt. Servant in Law Relating To Torts

In the case of State of Bihar Vs. Abdul Majid, the Court recognised the right of a Government servant to sue the Government for recovery of arrears of salary. However, a different decision was favoured by the Supreme Court in the case of Kasturi Lal Vs.

State of UP, in which, the plaintiff had been arrested by the police officers on a suspicion of possessing stolen property. Upon a search of his person, gold in large quantities was found and seized under the Code of Criminal Procedure. Later, the plaintiff was released, but the gold was not returned.

The reason was that the Head Constable in charge of the place where the said gold was stored had absconded with it. Hence, the plaintiff brought a suit against the State of UP, demanding the return of the gold or in the very least, damages for the loss caused to him.

It was found by the courts that the concerned police officers had failed to take the requisite care of the gold seized from the plaintiff, as provided by the UP Police Regulations.

However, When the matter was taken up by the Supreme Court, it was found that the police officers were negligent in dealing with the property, but the power to arrest a person, to search him and to seize property found with him, are powers categorized as sovereign powers.

It also determined that the act which gave rise to the present claim for damages has been committed by the employee of the State during the course of its employment. The claim, though, is not tenable because the employment is of sovereign nature, and hence, cannot be sustained.

The Supreme Court, therefore, gave the following decision in Kasturi Lal Vs. State of UP, “It was an attribute of sovereignty that a State cannot be sued in its own courts without its consent. This legal position has been substantially altered by the Crown Proceedings Act, 1947.

Hence, the doctrine of immunity which has been borrowed in India in dealing with the question of the immunity of the State, in regard to claims made against it for tortious acts committed by its servants, was really based on the common law principle which prevailed in England; and that principle has now been substantially modified by the Crown Proceedings Act.

In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has to be told, when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State.

That, we think, is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the Legislature.” Hence, action against the State was allowed henceforth.

The distinction between Sovereign and Non-Sovereign Functions

This was clarified in the case of N. Nagendra Rao Vs. State of AP. The court finally gave the following judgment, “In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of the power and manner of its exercise.

Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law.

A law made by a legislature may be bad or may be ultra vires, but, since it is an exercise of legislative power, a person affected by it may challenge its validity but he cannot approach a court of law for negligence in making the law.

Nor can the Government, in exercise of its executive action, be sued for its decision on political or policy matters. It is in (the) public interest that for acts performed by the State, either in its legislative or executive capacity, it should not be answerable in torts.

That would be illogical and impracticable. It would be in conflict with even modern notions of sovereignty”.

In the above-mentioned case, the following tests were recommended by the court, in determining the nature of a legislative or executive function:

Is the State answerable for the act in courts “One of the tests to determine if the legislative or executive function is sovereign in nature is, whether the State is answerable for such actions in courts of law.

For instance, acts such as defence of the country, raising (the) armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature.

Therefore, they are not amenable to jurisdiction of ordinary civil court. No suit under Civil Procedure Code would lie in respect of it. The State is immune from being sued, as the jurisdiction of the courts in such matters is impliedly barred.

” Further, the court said that, “No legal or political system today can place the State above (the law) as it is unjust and unfair for a citizen . to be deprived of his property illegally by negligent act of officers of the State without any remedy.

From sincerity, efficiency and dignity of (the) State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity, the circle has gone round and the emphasis now is more on liberty, equality and the rule of law.

The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity.

Any watertight compartmentalization of the functions of the State as “sovereign and non-sovereign” or “governmental and non-governmental” is not sound.”

Also, in this case, the court emphasised the concept of the Welfare State, “In (a) Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order, but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital.

The demarcating line between sovereign and non-sovereign powers, for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.”

Moreover, the Court reinforced a link between the State and its officers: “The determination of vicarious liability of the State being linked with (the) negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there fon is no rationale for the proposition that even if the officer is liable, the State cannot be sued.”

In the case of Jay Laxmi Salt Words (P) Ltd vs State of Gujarat, the Supreme Court of India pointed out the two ingredients of torts:

1. injury
2. damage

These can be said to be the two basic ingredients of tort. It was also stressed that although these elements may be found in contracts as well but the violations which may result in tortuous liability can be said to be breach of duty.

The remedy for these is fixed by the law while in contract they are fixed by the parties themselves. Moreover, in the case of torts, the duty is towards people in general, whereas, in contracts, it is towards a specific person or persons.

A legal action against a tort is usually a claim for pecuniary compensation in respect of damages suffered because of an invasion of a legally protected interest.

The liability in case of torts is called ‘strict liability’, ‘absolute liability’ or sometimes even ‘fault liability’. These liabilities have become somewhat entrenched over time. (Rylands v. Fletcher).

The only difference between ‘strict liability’ and ‘fault liability’ can be pointed out with the help of presence or absence of mental element. A breach of legal duty wilfully, or deliberately or even maliciously committed is always negligence, resulting in from fault liability.

On the other hand, an injury or damage resulting without any intention yet caused due to improper planning or lack of foresight etc. is strict liability since it is a primary duty to take care of these things.

In the case of Donoghue v. Stevenson, a manufacturer was held to be liable to ultimate consumer on the principle of duty to care. Same was determined in the case of Anns v. Merton London Borough.

Law Relating To Torts Distinguish Between Question And Answers

Question 1:Distinguish the following: (iv) ‘Libel’ and ‘slander’.
Answer:

Difference between ‘Libel’ and ‘slander’

Question 2:Distinguish between the following.’Battery’ and ‘assault’.
Answer:

Difference between ‘Battery’ and ‘assault’

Question 3: Distinguish between ‘Damnum Sine Injuria’ and ‘Injuria Sine Damnum’ under the law relating to Torts. 
Answer:

Difference between ‘Damnum Sine Injuria’ and ‘Injuria Sine Damnum’ under the law relating to Torts

Law Relating To Torts Descriptive Questions

Question 1: Swaraj an employer of ABC Company Ltd., appointed Rakesh as an independent contractor. Discuss under what circumstances Swaraj would be liable for the fault of Rakesh.
Answer:

A master/employer is liable for the tort committed by his servant while acting in the course of his employment. The servant, of course, is also liable; their liability is joint and several. This is known as vicarious liability.

The relationship of an individual with that of his/her independent contractor is not that of master-servant. The employer is not liable merely because an independent contractor commits a tort in the course of his employment.

The employer is liable only if he himself is deemed to have committed a tort. This may happen in one of the following three ways:

1. When employer authorizes him to commit a tort.
2. In torts of strict liability
3. Negligence of independent contractor.

In the present case, Swaraj would be liable for the fault of Rakesh in the above mentioned circumstances.

Question 2: Discuss the ‘Rule of Strict Liability’ under the Law of Torts.
Answer:

Strict liability or absolute liability: This liability arises when some harm takes place without any intention or negligence on the part of the defendant, even then he is liable for it. This can happen in any of the following cases:

Unavoidable accidents: When a person is doing some work, which, if it goes wrong, is liable to cause harm to another, it will bring liability upon him even if the harmful substances were being kept and maintained by. another on his land.

For instance, if someone has a godown, which he leases to another, and if that other causes some illegal activity to take place in that place, the owner is also liable for it.

Unavoidable mistake: When a person affects another’s tangible or intangible property, for example, someone who gives wrong information about another to the press has to undertake full liability for it.

There are, however, exceptions to the rule of strict liability. They are as under:

Damage caused even when land used for natural purposes: When land is used for the purposes it is meant to be used for, and still harm is caused, then no liability arises. For example, when the land to be used for building a house is used for that purpose, and still it causes some harm to another, then the defendant is not liable for it if he has exercised
normal care.

With the knowledge and consent of plaintiff: When the plaintiff will benefit from the action too, then he cannot complain against it later, having enjoyed the fruit of that action.

Damage caused from an act of a stranger or a third party: However, if the defendant was aware of the damage being caused, then he should have taken steps to mitigate the harm, else he would be held liable.

Action of a statutory body: This will be exempt when the statutory body, i.e., the municipality etc. has taken proper steps to keep the substance in a way so as to ensure that no one is harmed because of its leakage. Act of God is exempt, for example, floods, lightning, etc.

When the plaintiff is at fault himself: In this case, if the plaintiff was forewarned of the chance of damage, but he did not pay heed, he himself is liable for his loss or harm.

Question 3: What remedies can be sought under the Law of Torts?
Answer:

Remedies in Torts:

There are Three types of judicial remedies available in case of torts:

• Damages
• Injunction
• Specífic Restitution of Property.

The Extra-judicial remedies: Extra-judicial remedies are those that can be accessed by use of self-help and without recourse to the Court.

These are as under:

Self-defense:

The law permits a person to use reasonable force to protect himself or any other person when unlawful use of force is being used against them.

Prevention of Trespass in Law Relating To Torts:

An occupier of property or anyone who has the same rights may use reasonable force to prevent a trespasser from entering into the property. He may also eject them but the force should be reasonable or justified as per the purpose.

Right of re-entry in Law Relating To Torts:

Anyone wrongfully dispossessed of land may regain possession in a peaceful and reasonable manner.

Re-caption of goods in Law Relating To Torts:

Anyone wrongfully dispossessed of goods can use reasonable force to repossess. This is also used in the case of cattle.

Abatement of nuisance in Law Relating To Torts:

This right is given to the occupier of land who may lawfully abate or lessen or stop any nuisance injuriously affecting the land or his enjoyment of it. For example, if a neighbour’s tree has overhanging branches that jut out over his land and cause his discomfort, he may cut them, but only after affording the neighbor a due notice and by choosing the least harmful method, thereby avoiding unnecessary damage.

Distress damage feasant in Law Relating To Torts:

If an occupier of a land or property finds any cattle unlawfully causing damage to his land, he may detain them until compensation is paid for the damage. Hence, he has the right to restrain things causing damage to his property.

Question 4: Discuss the vicarious or tortious liability of state for the act of his servant. Refer relevant Judgements.
Answer:

The vicarious or tortious liability of state for the act of his servant

When a case of Government liability in tort comes before the courts, the question is whether the particular Government activity, which gave rise to the tort, was the sovereign function or non-sovereign function.

If it is a sovereign function it could claim immunity from the tortuous liability, otherwise not. Generally, the activities of commercial nature or those which can be carried out by the private individual are termed as non-sovereign functions.

The first important case involving the tortious liability of the State was raised in the pre-independence era P. and 0. Steam Navigation v. Secretary of State for India (5 Born HCR App 1).

The question referred to the Supreme Court was whether the Secretary of State for India is liable for the damages caused by the negligence of the servants in the service of the Government.

The Supreme Court answered the question in the affirmative. The Court pointed out the principle of law that the Secretary of State for India in Council is liable for the damages occasioned by the negligence of Government servants, if the negligence is such as would render an ordinary employer liable.

According to the principle laid down in this case the Secretary of State can be liable only for acts of non-sovereign nature, liability will not accrue for sovereign acts.

The Court admitted the distinction between the sovereign and non-sovereign functions of the government and said that here was a great and clear distinction between acts done in exercise of what are termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them.

Question 5: Discuss briefly “Malicious Prosecution” and its essential elements under the law relating to Torts.

Answer:

“Malicious Prosecution” 

Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another, maliciously and without reasonable and probable cause, which terminate in favour of that other and which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

1. There must have been a prosecution of the plaintiff by the defendant.
2. There must have been want of reasonable and probable cause for that prosecution.
3. The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of justice).
4. The plaintiff must have suffered damages as a result of the prosecution.
5. The prosecution must have terminated in favour of the plaintiff. Space to write important points for revision

Question 6 : Anil and Amit are two partners of a firm. Anil, while ordinarily dealing with another firm, bribed that firm’s clerk to divulge secret relating to the other firm where that clerk was working. In this case, who shall be liable- whether both the Partners i.e. Anil and Amit or only Anil? Explain.
Answer:

Tort committed by a partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several.

In the case of Hamlyn vs. Houston & Co. (1903) 1 K.B. 81, one of the two partners bribed the plaintiff’s clerk and induced him to divulge secrets relating to his employer’s business. It was held that both the partners were liable for the tort committed by only one of them.

Question 7: “To constitute a tort, there must be a wrongful act and legal damages”. Explain.
Answer:

There is no provision in law that lists out the requirements of a tort. However, certain general conditions can be derived. A tort can be defined as an act or omission committed by the defendant (tortfeasor) when he is not protected by just cause or excuse, that causes harm to the plaintiff. Hence, the following elements of a tort can be observed:

Wrongful act in Law Relating To Torts:

To constitute a tort, the act complained of should be legally wrongful as against the complainant. Hence, in order to be termed as a tort, an act against a person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and right to property are violated without legal excuse, should be one that can be claimed against, whether actual loss results from such violation or not.

Legal damages in Law Relating To Torts :

All damage might not be damage in the eyes of law. To constitute a tort, there should be legal injury or invasion of a legal right. If there is no infringement of a legal right, an action does not lie. Conversely, where there is infringement of a legal right, a suit lies even though no damage may have been caused. (Ashby v. White).

Legal remedy in Law Relating To Torts:

There should be a legal remedy available against the tort in question. There are three types of judicial remedies available in case of torts –

• Damages
• Injunction
• Specific Restitution of Property.

The two concepts are further explained through the following two maxims-

Damnum sine injuria in Law Relating To Torts

‘Injury’ here means ‘physical injury’ and ‘damnum’ means ‘financial loss’ or ‘loss of property’. Damnum sine injuria implies a legal wrong that causes no actual damage or injury to anyone. For example, a financial wrong caused by one could result in liability to the other, even though no physical harm has been caused to the other.

Injuria sine damnum in Law Relating To Torts

I no stub bailgmi na al erarti tarll moltevisedo Injuria sine damnum implies a legal wrong that causes no actual damage or injury to anyone. For example, someone got hurt by another’s vehicle due to his own fault; it is not the other person’s liability, so no financial loss is caused to him.

Question 8: The managing clerk of a firm of solicitors, while acting in the ordinary course of business committed fraud, against a lady client by fraudulently inducing her to sign documents transferring her property to him. He had done so without the knowledge of his Principal. Explain whether the Principal will be liable?
Answer:

Vicarious Liabitity in Law Relating To Torts:

A tort is a civil wrong that arises out of a breach of a civil duty or of a non-contractual obligation, the only remedy for which is damages. When one is responsible for the act of another, it is called vicarious liability.

For example, when the servant of a person harms another by his act, the servant as well as his master are both held accountable for the act done by the servant. The current case pertains to the Law of Torts, i.e. the law pertaining to vicarious liability.

Under these rules, the principal is liable for the wrongs of his agents, based on the maxim – Qui facit per alium facit per se (He who acts through an agent acts himself, i.e. even if someone is acting through an agent, and the agent is acting as per the principal’s directions, it can be assumed that the principal is acting himself).

In this case, the employer will be liable for the acts of his agent, i.e. the managing clerk. This matches the case of Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, in which it was decided that the driver although doing an authorized work, was doing it in an unauthorized manner.

Moreover, in this case, it will not exempt the employer and the employer will be held liable for the wrong of the managing clerk.

Question 9: Explain the liability of master for the act of his servant under the law of torts.
Answer:

The liability of master for the act of his servant under the law of torts

Vicarious Liability for Wrongs committed by others Responsibility in such cases is imputed by law on grounds of social policy or expediency. These case involve liability of master for the acts of his servant.

A tort is a civil wrong that arises out of a breach of a civil duty or of a non-contractual obligation, the only remedy for which is damages. When one is responsible for the act of another, it is called vicarious liability.

For example, when the servant of a person harms another by his act, the servant as well as his master are both held accountable for the act done by the servant. Similarly, sometimes the state is held vicariously liable for the torts committed by its servants in the exercise of their duty.

The State would of course not be liable if the acts done were justified by a necessity for protection of life or property. Acts such as judicial or quasi-judicial decisions done in good faith would also bé exempt.

Under these rules, the principal/master is liable for the wrongs of his agents/servants, based on the maxim – Qui facit per alium facit per se (He who acts through an agent acts himself, i.e. even if someone is acting through an agent, and the agent is acting as per the principal’s directions, it can be assumed that the principal is acting himself).

In this case, the employer will be liable for the acts of his agent, i.e. the driver. This matches the case of Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, in which it was decided that the driver although doing an authorized work, was doing it in an unauthorized manner.

This will not, however, exempt the employer and the employer will be held liable for the wrong of the driver. Space to write important points for revision

Question 10:Explain the Latin maxims damnum sine injuria’ and ‘injuria sine damnum’.

Answer:

The Latin maxims damnum sine injuria’ and ‘injuria sine damnum

These two doctrines are covered under the law of torts.

Damnum sine injuria: ‘Injury’ here means ‘physical injury’ and ‘damnum’ means ‘financial loss’ or ‘loss of property’. Damnum sine injuria implies a legal wrong that causes no actual damage or injury to anyone.

For example, a financial wrong caused by one could result in liability to the other, even though no physical harm has been caused to the other. There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects.

Damage so done and suffered is called Damnum Sine Injuria or damage without injury.

Injuria sine damnum: Injuria sine damnum implies a legal wrong that causes no actual damage or injury to anyone. For example, someone got hurt by another’s vehicle due to his own fault. Damage without breach of a legal right will not constitute a tort.

Such examples would constitute injury but not damage, as per the rules of torts. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises.

In Gloucester Grammar School Master Case, it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque/sine injuria or damage without injury.

Question 11: Describe the concept of False Imprisonment under Law of Torts. Cite case law in support of your answer.

Answer:

False Imprisonment in Law Relating To Torts:

Restricting a person’s liberty without sufficient lawful justification, even if it is for a short duration of time implies false imprisonment. It implies placing unauthorized restraint over a person’s body.

If a person is confined within certain limits so that he cannot move about freely we can say he has been falsely imprisoned. It can even occur when he is restrained from leaving from an open space; it is not essential that he be imprisoned within four walls.

In the case of Sunil Batra v. Delhi Administration, the Supreme Court gave its observation that “there is an implied duty on the jail superintendent to give reasons for putting bar fetters on a prisoner to avoid invalidity of that provision under Article 21 of the Constitution.”

Hence, it stressed upon the orders of the adjudication to give well-reasoned and adequately substantiated judgements, which prevent them from being arbitrary.

Law Relating To Torts Descriptive Questions

Question.1: What are the essential elements of the tort of malicious prosecution?

Answer:

This tort must have the following essential elements:

1. A prosecution of the plaintiff by the defendant.
2. No reasonable and probable cause for that prosecution.
3. Defendant must have acted maliciously, without having the motive of justice to support his contentions.
4. The plaintiff must have suffered damages to his property, reputation etc. as a result of the prosecution.
5. The prosecution terminated in favour of the plaintiff.

In order to constitute this tort, the proceedings must have been instituted by the defendant. If he just conveys his belief as to the facts of the case to a policeman or a magistrate he is not responsible for any proceedings which might be initiated by them.

Question.2: What are the general conditions for liability in case of a tort?
Answer:

The general conditions for liability in case of a tort

There is no provision in law that lists out the requirements of a tort. However, certain general conditions can be derived. A tort can be defined as an act or omission committed by the defendant (tortfeasor) when he is not protected by just cause or excuse, that causes harm to the plaintiff. Hence, the following elements of a tort can be observed:

Wrongful act:

To constitute a tort, the act complained of should be legally wrongful as against the complainant. Hence, in order to be termed as a tort, an act against a person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and right to property are violated without legal excuse, should be one that can be claimed against, whether actual loss results from such violation or not.

Legal damages:

All damage might not be damage in the eyes of the law. To constitute a tort, there should be legal injury or invasion of a legal right. If there is no infringement of a legal right, an action does not lie. Conversely, where there is infringement of a legal right, a suit lies even though no damage may have been caused. (Ashby v. White).

Legal remedy:

There should be a legal remedy available against the tort in question.

Question.3: What are the remedies available in case of torts?
Answer:

Remedies In Torts

There are three types of judicial remedies available in case of torts –

• Damages
• Injunction
• Specific Restitution of Property.

The extra in Law Relating To Torts:

judicial remedies are those that can be accessed by use of self-help and without recourse to the court. These are as under –

Self-defence in Law Relating To Torts:

The law permits a person to use reasonable force to protect himself or any other person when unlawful use of force is being used against them.

Prevention of Trespass in Law Relating To Torts:

An occupier of property or anyone who has the same rights may use reasonable force to prevent a trespasser from entering into the property. He may also eject them but the force should be reasonable or justified as per the purpose.

Right of Re-entry in Law Relating To Torts:

Anyone wrongfully dispossessed of land may regain possession peacefully and reasonably.

Re-caption of Goods in Law Relating To Torts:

Anyone wrongfully dispossessed of goods can use reasonable force to repossess. This is also used in the case of cattle.

Abatement of Nuisance in Law Relating To Torts:

This right is given to the occupier of land who may lawfully abate or lessen or stop any nuisance injuriously affecting the land or his enjoyment of it. For example, if a neighbour’s tree has overhanging branches that jut out over his land and cause his discomfort, he may cut them, but only after affording the neighbor a due notice and by choosing the least harmful method, thereby avoiding unnecessary damage.

Distress damage feasant in Law Relating To Torts:

If an occupier of a land or property finds any cattle unlawfully causing damage to his land, he may detain them until compensation is paid for the damage. Hence, he has the right to restrain things causing damage to his property.

CS Executive Limitation Act, 1963

Period of limitation 

This is the period during which, a suit can be filed or a case initiated in a court of law. Different periods have been prescribed for different matters and issues, as per the Limitation Act. For example, if it is a matter of a tort, one can approach the courts within three years, if it is a matter related to mortgages, the period of limitation is sixty years, and so on.

Effect of acknowledgment in Limitation Act, 1963

A fresh period of limitation begins from the date of acknowledgment of liability with regard to any property or right.

Extension of limitation period in Limitation Act, 1963

Extension of limitation period is covered under Section 5 of the Limitation Act, 1963, which covers the Doctrine of Sufficient Cause. It provides for the period of limitation being extended in case the plaintiff was hindered by a cause serious enough to have prevented him from initiating proceedings.

Continuous Running of Time in Limitation Act, 1963

Once the calculation or counting of time starts, it shall not be discontinued by any ensuing disability or incapacity that arises. This condition will hold true only when and if the same conditions persist; when the cause of action has been taken away or a right altered, the very reason for calculation of the limitation period fails.

Bar of limitation in Limitation Act, 1963

Bar of limitation implies that a person is given the right to approach the courts in any matter within a set time frame. Beyond that, it is not that his legal right regarding that matter extinguishes; it is just that the courts will not be able to help him in that matter anymore.

Learn and Read More CS Executive JIGL Question and Answers

Persons under legal disability in Limitation Act, 1963

These are people who are unable to approach the courts within the limitation period because of some legal requirements that they cannot currently or ever fulfill.

The effect of part payment on limitation period in Limitation Act, 1963

A fresh limitation period begins from the date of part payment or the payment of interest on a debt. The original limitation period stands extended when part payment occurs.

Doctrine of sufficient cause in Limitation Act, 1963

This doctrine covers grounds on which, the limitation period can be extended. It can be on the grounds of a legal or physical disability, for example, if the person needs to submit some papers to be obtained from a government department that are not received on time, the limitation period can be extended, as that is not something within his control.

CS Executive Limitation Act, 1963 Descriptive Questions

Question 1: Explain the ‘doctrine of sufficient cause’ for condonation of delay as provided in section 5 of the Limitation Act, 1963.
Answer:

The ‘doctrine of sufficient cause’ for condonation of delay as provided in section 5 of the Limitation Act, 1963

Extension of limitation period is covered under Section 5 of the Limitation Act, 1963, which covers the Doctrine of Sufficient Cause. It provides for the period of limitation being extended in case the plaintiff was hindered by a cause serious enough to have prevented him from initiating proceedings.

In this case, while going to the court, Amar met with an accident, which prevented him from presenting the plaint in time. Now he filed an application for condonation of the delay on grounds of sufficient cause.

Under Section 5, ‘sufficient cause’ is seen as something of a serious nature that prevents the person concerned from initiating or carrying on the proceedings within the required or prescribed time.

He cannot claim extension of time, as the Section does not apply to suits and to applications made under Order XXI of the Code of Civil Procedure,1908.

Question 2: Comment the following: Computation of period of limitation for an appeal or an application for leave to appeal.
Answer:

Computation of period of limitation for an appeal or an application for leave to appeal

Sections 12 to 19 and Section 24, which are contained in Part III of the Limitation Act, 1963, titled “Computation of Period of Limitation”, provide the details for this.

They are as under -Section 12 It says that the time required for filing a suit, appeal or application, either against a decree or order or otherwise, is exclusive of the day from which the limitation period is calculated.

Moreover, the time needed for obtaining a copy of the order being appealed against is also to be excluded.

The following are to be excluded while calculating this period –

In calculating the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

In computing the period of limitation for an appeal or an application for to leave to appeal or for revision or for review of a judgment, the day on which the judgment was pronounced and the time required for obtaining a copy of the decree, sentence or order appealed from shall be excluded.

Where a decree or order is appealed from for sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment 45 on which the decree or order is based or from which it is sourced, shall be excluded.ad wow

In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

However, in computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.

Question 3: The Law of Limitation under the Limitation Act, 1963 bars the remedy but it does not extinguish the right. Explain in brief.
Answer:

The Law of Limitation under the Limitation Act, 1963 bars the remedy but it does not extinguish the right

The law relating to limitation is incorporated in the Limitation Act, 1963, which prescribes different periods of limitation for suits, petitions or applications. In the case of Bombay Dying & Mfg. Co. Ltd. v.

State of Bombay, AIR 1958 SC 328 the Supreme Court held that the Law of limitation bars the remedy in a Court of law only when the period of limitation has expired, but it does
not extinguish the right that it cannot be enforced by judicial process.

Thus if a claim is satisfied outside the Court of law after the expiry of period of limitation, that is not illegal.

Section 3 of the Limitation Act, 1963 provides that any suit, appeal or application if made beyond the prescribed period of limitation, it is the duty. of the Court not to proceed with such suits irrespective of the fact whether the plea of limitation has been set up in defence or not, The provisions of Section 3 are mandatory.

The Court can suo motu take note of question of limitation. The question whether a suit is barred by limitation should be decided on the facts as they stood on the date of presentation of the plaint.

Question 4: What is the effect of acknowledgment on the period of limitation? Discuss.
Answer:

The effect of acknowledgment on the period of limitation

Section 18 of the Limitation Act, 1963 deals with the effect of acknowledgment of liability in respect of property or right on the period of limitation.

The Court might then overlook the delay and accept the application in all regularity, as if it were submitted within the specified time. However, this power is a discretionary power, only to be exercised by the Courts where they feel that the case so warrants.

Question 5: Describe in brief the provisions of Section 19 of the Limitation Act, 1963 regarding the effect of payment on account of debt or of interest on legacy.
Answer:

The provisions of Section 19 of the Limitation Act, 1963 regarding the effect of payment on account of debt or of interest on legacy

Section 18 This section states that in case of an acknowledgment regarding any property or right in relation to which any claim has been made against him, a fresh period of limitation will commence from the date of such acknowledgment.

The effect of acknowledgment as per Section 18 of the Limitation Act, 1963, is to extend the period of limitation. A fresh period of limitation begins from the date of acknowledgment of liability with regard to any property or right.

The only conditions are that the person signing the acknowledgment has to give it in writing and it has to be regarding a claim of a property or right against him. In order to bind him, it has to have the effects of an admission.

Section 19 This records the cases of a debt or interest on legacy, on account of which if interest is paid, it results in a fresh period of limitation commencing from the date of such payment.

According to Section 19 of the Limitation Act, 1963, a fresh limitation period begins from the date of part payment or the payment of interest on a debt. The original limitation period stands extended when part payment occurs, but the payment has to take place within the original period of limitation applicable on the debt.

For this to happen, an acknowledgment given by the creditor is mandatory, as proof of part payment.

Question 6: The decision of a Court allowing a suit which had been instituted after the period prescribed is not vitiated for want of jurisdiction. Discuss it in the light of provisions under section 3 relating to Bar of Limitation under Limitation Act, 1963.
Answer:

Bar of Limitation – Decision of a court

Bar of limitation: Bar of limitation implies that a person is given the right to approach the courts in any matter within a set timeframe. Beyond that, it is not that his legal right regarding that matter extinguishes; it is just that the courts will not be able to help him in that matter anymore.

If he is able to settle the matter out of court i.e. through arbitration, conciliation etc., he will definitely still be within his bounds. Hence, in civil matters, the law of Limitation provides a limit to the time within which courts can be approached. Section 3 of the Limitation Act, 1963.

Moreover, it is based on the principle that the law cannot and will not protect people who are themselves not vigilant about their rights. (Vigilantibus non domientibus jur A subventiunt).

The Limitation Act, 1963 provides for fixed periods of time for different civil and criminal proceedings that take place in a court of law. It covers all suits, petitions and applications. The intention of this Act is to put a limit to the period when the remedy is available to the aggrieved.

However, it does not bar the right, but merely the remedy. The Limitation Act, 1963 has been made keeping public policy in mind, and the general principles of “repose, peace and justice” as per the Supreme Court case of Prashar vs.

Vasantsen. This indicates that the statute of limitation is used to limit the number of cases with the courts, by limiting at least those that have become stale by crossing the limits of time within which they should have been initiated.

Moreover as per the general principles of justice, law should support those who are alert as to their rights and exercise them within the required period.

Hence, this statute is for establishing a limit to the time within which an aggrieved can apply for a remedy enforced by a court, thus freeing the courts of an endless duty to accept cases as and when they are filed.

Hence, the decision of a court allowing a suit after the limitation period is not vitiated for want of jurisdiction.

Question 7: What is the effect of acknowledgment on the period of limitation under the section 18 of the Limitation Act, 1963? Explain.
Answer:

The effect of acknowledgment on the period of limitation under the section 18 of the Limitation Act, 1963

The effect of acknowledgement as per Section 18 of the Limitation Act, 1963, is to extend the period of limitation. A fresh period of limitation begins from the date of acknowledgement of liability with regard to any property or right.

The only conditions are that the person signing the acknowledgement has to give it in writing and it has to be regarding a claim of a property or right against him. In order to bind him, it has to have the effects of an admission.

This section states that in case of an acknowledgement regarding any property or right in relation to which any claim has been made against him, a fresh period of limitation will commence from the date of such acknowledgement. The effect of acknowledgement as per Section 18 of the Limitation Act, 1963, is to extend the period of limitation.

A fresh period of limitation begins from the date of acknowledgement of liability with regard to any property or right. The only conditions are that the person signing the acknowledgement has to give it in writing and it has to be regarding a claim of a property or right against him.

In order to bind him, it has to have the effects of an admission.

Question 8: What is maximum and minimum period of limitation prescribed by Limitation Act, 1963 and also state that in which kind of suits it is provided?
Answer:

Period of limitation: This is the period during which, a suit can be filed or a case initiated in a court of law. Different periods have been prescribed for different matters and issues, as per the Limitation Act.

For example, if it is a matter of a tort, one can approach the courts within three years, if it is a matter related to mortgages, the period of limitation is sixty years, and so on. The prescribed limitation periods for various purposes are as under:

• 30 years- This is the maximum period of limitation prescribed by the Limitation Act; provided only for three kinds of suits
  • Suits by mortgagors for the redemption or recovery of possession of immovable property mortgaged;
  • Suits by mortgagee for foreclosure;
  • Suits by or on behalf of the Central Government or any State Government including the State of Jammu and Kashmir.
• 12 years For various kinds of suits relating to immovable property, trusts and endowments.
• 3 years – For suits relating to accounts, contracts, and declaratory suits, suits relating to decrees and instruments and suits relating to movable property.
• 3 years – For suits relating to torts and other miscellaneous matters and suits for which no period of limitation is provided in the Schedule to the Act.
• 90 to 10 days – This category has the following distinctions –
  • 10 days from the date of service of the summons – For application for leave to appear and defend a suit under summary procedure.
  • 30 days For appeals against a sentence of death passed by a court of session or a High Court in the exercise of its original jurisdiction.
  • 60 days – For appeal to High Court against any sentence other than a sentence of death or any order not being an order of acquittal.
  • 30 days – For appeal to any other Court against any sentence other than a sentence of death or any order not being an order of acquittal.
  • 60 days from the date of the decree – To appeal in forma pauperies to the High Court.
  • 30 days from the date of the decree – To appeal in forma pauperies to any other Court.

Hence, the maximum period of limitation is 30 years and the minimum period of limitation is 10 days, under the Act.

CS Executive Limitation Act, 1963 Practical Questions

Question 1: The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank at a garage, struck a matchstick in order to light a cigarette and then threw it, still alight on the floor. An explosion and a fire ensued. Who is liable for the damage so caused? Decide giving case law on this point.
Answer:

This case pertains to the Law of Torts, i.e. the law pertaining to vicarious liability. Under these rules, the principal is liable for the wrongs of his agents, based on the maxim –
Qui facit per alium facit per se (He who acts through an agent acts himself, i.e.

Even if someone is acting through an agent, and the agent is acting as per the principal’s directions, it can be assumed that the principal is acting himself). In this case, the employer will be liable for the acts of his agent, i.e. the driver.

This matches the case of Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, in which it was decided that the driver although doing an authorized work, was doing it in an unauthorized manner.

This will not, however, exempt the employer and the employer will be held liable for the wrong of the driver.

Question 2: Manoj died on 3rd August, 2016 before a right to institute a suit accrued, leaving behind a minor son of the age of 15 years. Decide the time from where the period of limitation shall be calculated under Limitation Act, 1963.
Answer:

Persons under legal disability:

These are people who are unable to approach the Courts within the limitation period because of some legal requirements that they cannot currently or ever fulfill. E.g. A minor, who cannot by himself file a suit till he attains majority, a person who is mentally incapable, etc.

As per Section 6 of the Limitation Act, 1963, persons under legal disabilities can approach Courts within a specific time period. Sections 7 and 8 supplement Section 6 by providing for the disability of one of several persons and the exceptions respectively.

The effect of all these sections taken together is that in situations where the period of limitation expires before the disability ceases, a fresh period of limitation begins from when the disability ends.

For example, a minor gains a fresh period of disability from when he attains to majority. w. evig of Also, Section 16 of the Act provides for such a situation – If a person dies before he can institute a suit, the right shall not lapse and shall be construed from a legal representative of the deceased can be made available for instituting the suit.

Hence, in this case, the period of limitation would be calculated from when the minor comes of age.

CS Executive Limitation Act, 1963 Descriptive Questions

Question.1: What is the effect on Limitation Period in case of part payment? 
Answer:

The effect on Limitation Period in case of part payment

According to Section 19 of the Limitation Act, 1963, a fresh limitation period begins from the date of part payment or the payment of interest on a debt.

The original limitation period stands extended when part payment occurs, but the payment has to take place within the original period of limitation applicable on the debt. For this to happen, an acknowledgment given by the creditor is mandatory, as proof of part payment.

Question.2: Can the Limitation Period be extended? Under what circumstances is it possible?
Answer:

Extension of limitation period and the Doctrine of Sufficient Cause Extension of limitation period is covered under Section 5 of the Limitation Act, 1963, which covers the Doctrine of Sufficient Cause.

It provides for the period of limitation being extended in case the plaintiff was hindered by a cause serious enough to have prevented him from initiating proceedings. In this case, while going to the court, Amar met with an accident, which prevented him from presenting the plaint in time.

Now he filed an application for condonation of the delay on grounds of sufficient cause. Under Section 5, ‘sufficient cause’ is seen as something of a serious nature that prevents the person concerned from initiating or carrying on the proceedings within the required or prescribed time.

He cannot claim extension of time, as the Section does not apply to suits and to applications made under Order XXI of the Code of Civil Procedure, 1908. Space to write important points for revision

Question.3: What is the Bar of limitation in Limitation Act, 1963?
Answer:

Bar of limitation  in Limitation Act, 1963 – Bar of limitation implies that a person is given the right to approach the courts in any matter within a set timeframe. Beyond that, it is not that his legal right regarding that matter extinguishes; it is just that the courts will not be able to help him in that matter anymore.

If he is able to settle the matter out of court i.e. through arbitration, conciliation etc., he will definitely still be within his bounds. Hence, in civil matters, the law of Limitation provides a limit to the time within which courts can be approached, Moreover, it is based on the principle that the law cannot and will not protect people who are themselves not vigilant about their rights. (Vigilantibus non domientibus jur A subventiunt).

Persons under legal disability in Limitation Act, 1963These are people who are unable to approach the courts within the limitation period because of some legal requirements that they cannot currently or ever fulfill. E.g. A minor, who cannot by himself file a suit till he attains majority, a person who is mentally incapable, etc.

Continuous running of time in Limitation Act, 1963 – The limitation period, once it starts to run, is recorded continuously. What is means is that once the limitation period starts,there are no stoppages to it;the advent of the limitation period culminates only when it finishes.

Question.4: Define Limitation Period. What is the purpose for defining it?

Limitation Period in Limitation Act, 1963

The Limitation Act, 1963 provides for fixed periods of time for different civil and criminal proceedings that take place in a court of law. It covers all suits, petitions and applications. The intention of this Act is to put a limit to the period when the remedy is available to the aggrieved.

However, it does not bar the right, but merely the remedy. The Limitation Act, 1963 has been made keeping public policy in mind, and the general principles of “repose, peace and justice” as per the Supreme Court case of Prashar vs. Vasantsen.

This indicates that the statute of limitation is used to limit the number of cases with the courts, by limiting at least those that have become stale by crossing the limits of time within which they should have been initiated.

Moreover as per the general principles of justice, law should support those who are alert as to their rights and exercise them within the required period. Hence, this statute is for establishing a limit to the time within which an aggrieved can apply for a remedy enforced by a court, thus freeing the courts of an endless duty to accept cases as and when they are filed.

Question.5: What are the rules regarding the calculation of Limitation Period?
Answer:

Calculation of Limitation Period in Limitation Act, 1963

Section 9 of the Limitation Act, 1963 says that once the calculation or counting of time starts, it shall not be discontinued by any ensuing disability or incapacity that arises can stop the running of time.

This condition will hold true only when and if the same conditions persist; when the cause of action has been taken away or a right altered, the very reason for calculation of the limitation period fails. This is known as Continuous Running of Time.

Applicability in Limitation Act, 1963 :

It applies to cases where the cause of action continues; when that is varied, a fresh period of limitation will begin from the date of variation.

This Section applies only to suits and applications, and not to appeals, which are generally allowed unless expressly covered under some other section. Cases of property being vested in trusts and in legal representatives will be included only in the instance of the property being vested for a specific purpose.

Sections 12 to 19 and Section 24, which are contained in Part III of the Limitation Act, 1963, titled “Computation of Period of Limitation”, provide the details for this. They are as under –

Limitation Act, 1963 Section 12 It says that the time required for filing a suit, appeal or application, either against a decree or order or otherwise, is exclusive of the day from which the limitation period is calculated. Moreover, the time needed for obtaining a copy of the order being appealed against is also to be excluded.

Limitation Act, 1963 Section 13 – The time during which the suit for being adjudged a pauper is applied for but not decided.

Limitation Act, 1963 Section 14- The period that was taken by a court that had no jurisdiction on a matter that was under question, and the plaintiff had applied to that court in the mistaken belief that it had power to entertain that suit.

Limitation Act, 1963 Section 15- Under this Section certain other situation in which there would be an extension of time in calculating the period of limitation are given. For example, in case of the defendant being out of India and arriving after the suit has been instituted, only the time when he is in India shall be included.

Limitation Act, 1963 Section 16 – In case the plaintiff’s right to appeal is hindered by his death, the period shall be calculated from the time when there is a representative appointed for the plaintiff.

Limitation Act, 1963 Section 17 – In case the suit or application has been initiated on the basis of some fraud, the period of limitation would be counted from the date when the fraud is discovered.

Limitation Act, 1963 Section 18 This section states that in case of an acknowledgment regarding any property or right in relation to which any claim has been made against him, a fresh period of limitation will commence from the date of such acknowledgment.

Limitation Act, 1963 Section 19 This records the cases of a debt or interest on legacy, on account of which if interest is paid, it results in a fresh period of limitation commencing from the date of such payment.

Limitation Act, 1963 Section 24- all periods shall be calculated in accordance with the standard Gregorian calendar.

Question 6: Explain the Doctrine of Sufficient Cause.
Answer:

The Doctrine of Sufficient Cause

The Doctrine of Sufficient Cause It provides for the period of limitation being extended in case the plaintiff was hindered by a cause serious enough to have prevented him from initiating proceedings.

‘Sufficient cause’ implies a cause relevant and serious enough as to cause an extension of the time required to conduct the legal action.

This doctrine is provided in Section 5 of the Limitation Act, 1963, which says that any appeal or application may be admitted after the prescribed period if the appellant or the applicant is able to prove to the satisfaction of the court that he had sufficient cause for not filing the appeal or making the application within such period.

This extension does not apply to an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908.

The following would count as sufficient cause

If the appellant misinterprets a court order, practice or judgment, he might have issues in computing the period. However, the Court cannot admit a time barred suit. It does provide though, that the prescribed period should be over.

• It must be a cause which is beyond the control of the party. In Ramlal v. Rewa Coal Fields Ltd., the Supreme Court decided that “once the period of limitation expires then the appellant has to explain the delay made thereafter for day by day and if he is unable to explain the delay even for a single day, it would be deemed that the party did not have sufficient cause for delay.”
• It is a discretionary power of the Court to extend or not to extend the period of limitation even after sufficient cause has been proven.
• Wrong practice of High Court which misled the appellant or his counsel in not filing the appeal can safely be regarded as sufficient cause. In some cases, bona fide mistake of counsel may be taken into consideration for constructing sufficient cause.
• Wrong advice given by advocate Mistaken establishment or exercising of the right given by law may be considered as sufficient cause; ignorance of law will not be considered a valid excuse. Similarly, negligence of the party or the legal adviser may not always constitute a sufficient cause.
• Imprisonment or serious illness of the party may be considered as a valid reason. Time taken for acquiring certified copies of the decree or the judgment against which the appeal is to be filed.
• Non-availability of the case file to the State counsel or Panel lawyer is not a valid ground for delay. Ailment of father during which he required the care of appellant is held to be a sufficient and genuine cause.

It is to be kept in mind that the quasi-judicial tribunals, labour courts or executive authorities have no power to extend the period under this Section; this power is afforded only to courts.

Question.7: How is the period of limitation applicable to acquisition of ownership by possession?
Answer:

Acquisition of Ownership of Easements by Possession

Section 25 indirectly provides for the same. It is applicable to acquisition of easements and says that if the right to access and use of light or air or water, access way, watercourse, pathway or any other easement which has been peaceably enjoyed without interruption for twenty years (thirty years in case the property belongs to Government) acquisition of ownership by possession shall be absolute and indefeasible.

The following are some of the easements that can be acquired under this Section, as derived from cases that elucidate the Section –

1. A right of fishing in another’s waters. (Lokenath v. Jahnia Bibi).
2. The right to ply a ferry over the property of another. (Parmeshari v. Mahomed).
3. The right of pasture over the landlord’s wastelands by long term user. (Bholanath v. Midnapur Zemindary).
4. A right to the supply of water from a natural stream may be acquired by 20 years’ use under Section 25. (Abdul Rahman v. Muhammad Alam). Space to write important points for revision

Question.8: How does the period of limitation apply to writs?
Answer:

Limitation and writs under the constitution

This is covered under Entry 13, List III of the Constitution of India. This Entry gives the Legislature the authority to prescribe limitation periods for various purposes, without violating the Fundamental Rights.

This does not limit the access to legal remedy; it merely makes the appellant more vigilant, so that actions are given definite timeframes and the aggrieved takes prompt action for redressal, making it easier for the courts as well.

However, there is no bar of limitation on the aggrieved approaching the Supreme Court under Article 32 for filing a writ petition, or approaching a High Court under Article 226 for the same purpose.

In accepting such applications though, the courts do have regard for the promptness displayed by the applicant in seeking remedy. In case of inordinate and unexplained delay, they might refuse to accept the application on grounds of limitation.

(Tilokchand Motichand v. H.P. Munshi, State of M.P. v. Bhai Lal Bhai). Where a corresponding remedy is available in an ordinary that is subject to the bar of limitation, the Court usually
imposes the same limitation in the writ jurisdiction also.

Question.9: Explain the classification of period of limitation.
Answer:

Classification of period of limitation

The prescribed limitation periods for various purposes are as under:

• 30 years This is the maximum period of limitation prescribed by the Limitation Act; provided only for three kinds of suits –
• Suits by mortgagors for the redemption or recovery of possession of immovable property mortgaged;
• Suits by mortgagee for foreclosure;
• Suits by or on behalf of the Central Government or any State Government including the State of Jammu and Kashmir.
• 12 years For various kinds of suits relating to immovable property, trusts and endowments.
• 3 years – For suits relating to accounts, contracts, and declaratory suits, suits relating to decrees and instruments and suits relating to movable property.
• 1 to 3 years – For suits relating to torts and other miscellaneous matters and suits for which no period of limitation is provided in the Schedule to the Act.
• 90 to 10 days – This category has the following distinctions –
  • 10 days from the date of service of the summons – For application for leave to appear and defend a suit under summary procedure.
  • 30 days For appeals against a sentence of death passed by a court of session or a High Court in the exercise of its original jurisdiction.
  • 60 days – For appeal to High Court against any sentence other than a sentence of death or any order not being an order of acquittal.
  • 30 days – For appeal to any other Court against any sentence other than a sentence of death or any order not being an order of acquittal.
  • 60 days from the date of the decree – To appeal in forma pauperies to the High Court.
  • 30 days from the date of the decree – To appeal in forma pauperies to any other Court.

Judgment

‘Judgment’ means the decision given by a court. The grounds for it would already have been laid by the decree or the order on which the court bases its judgment. It is the final ruling given by a court with regard to a case.

Decree

‘Decree’ means the declaration given by the court as a decision in a suit as to the rights of a litigating party. It can be a preliminary decree or a final one.

Order

‘Order’ means a decision given by a civil court in a case; it is not a decree. It means a proclamation passed by the court that decides upon the legal relationship between parties and their inter se rights and liabilities.

Appeal

An ‘appeal’ is filed to a higher court if either the plaintiff or the defendant is not satisfied with the decision passed by the lower court. Appeals can lie from decrees or orders of the court.

Revision

‘Revision’ is when the High Court calls for the records of a case in which no appeal lies and if it feels that the lower court has passed a judgement which it is not entitled to pass for want of jurisdiction, or did not use its valid jurisdiction, or used it illegally or improperly.

Learn and Read More CS Executive JIGL Question and Answers

Review

‘Review’ means a reconsideration of the judgement given by a court in the form of a decree or an order. This is usually done when the person aggrieved with the judgement feels that the court has not given due consideration to the facts of the case, or when new facts are discovered, or when there is some obvious mistake in the records.

Res Judicata

This Doctrine prevents further suits being filed for a matter that is at the core of a former suit.
The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s).

Res sub judice

This doctrine implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in. This doctrine helps in avoiding duplicity of cases, and prevents opposing judgments being reached in same matters.

Set-off

‘Set off’ means a settlement where both the plaintiff and the defendant have some claims to be collected from each other. What one party owes to another might be used to discharge all or a part of the debt he is owed by the other party.

Counter claim

‘Counterclaim’ means a reverse claim made by one party against the other, where both claims are heard as part of the same proceedings.

Equitable set-off

It implies the rights of set-off arising from the same transaction instead of from different ones. Hence, the legal action takes the form of a single lawsuit instead of two different ones.

Temporary Injunctions

‘Temporary injunctions’, according to Order XXXIX of the Code of Civil Procedure, 1908, means an order passed by a court to restrain someone from doing something that would result in alienation of property, or its destruction, or when the plaintiff is in danger of being dispossessed altogether. Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it remains pending.

Interlocutory Orders

‘Interlocutory orders’ are orders passed by a court of law in a case where they feel an order should be given regarding a matter that needs to be resolved as soon as possible, or the value of the property in question would diminish. For example, the court may order sale of movable property even when the suit has not been resolved, if the property is subject to depreciation in value with the passage of time.

Summary Procedure

The summary procedure as specified under Order 37 of the Code of Civil Procedure, 1908 applies to suits on negotiable instruments like bills of exchanges, promissory notes and hundies. This is to expedite the redressal process and to bar the defendant from stopping the plaintiff from taking any action against him.

Cause of action

These are all the things that the plaintiff needs to prove in order to justify his right to a judgment in his favour. Under Order 2, Rule 2, of the Civil Procedure Code it means all the essential facts relating to his rights and their infringement.

Misjoinder

When there are multiple parties joined in one suit as plaintiffs or defendants who share no common question of law or fact, such a case would be termed as a case of ‘misjoinder of parties’. The Act prescribes two factors to avoid such misjoinders –

• The right to relief must arise out of the same act or transaction brought by the plaintiffs or against the defendants,
• Common question of law or fact.
  The Code does not require that all the questions of law or of fact should be common to all the parties; it is sufficient that there is a single common question.

Misjoinder of Causes of Action

When the plaintiffs are not jointly interested in all the causes of action to a suit there can be said to be a misjoinder of causes of action. The objections regarding misjoinders of parties or of causes of action should be taken at the first hearing of the suit and before the settlement of causes unless the ground for objections had subsequently arisen, otherwise they might not later be allowed.

Distinguish Between

Question 1: Distinguish between the following: (iv) ‘Legal set-off’ and ‘equitable set-off’
Answer :

Difference between ‘Legal set-off’ and ‘equitable set-off’

‘Set off’ means a settlement where both the plaintiff and the defendant have some claims to be collected from each other. What one party owes to another might be used to discharge all or a part of the debt he is owed by the other party.

There are various types of set-offs. One of these is an ‘equitable set-off’. It implies the rights of set-off arising from the same transaction instead of from different ones. Hence, the legal action takes the form of a single lawsuit instead of two different ones.

This type of right is allowed only when allowed by court; it is not there inherently.

Question 2: Distinguish between the following.
‘Set-off’ and ‘counter claim’

‘Review’ and ‘revision’.
Answer:

Difference between ‘Set-off’ and ‘counter claim’

Difference between ‘Review’ and ‘revision’.

Question 3: Distinguish between review and revision under the Civil Procedure Code 1908.
Answer:

Difference between review and revision under the Civil Procedure Code 1908

The right of review has been conferred by Section 114 and Order 47 Rule 1 of the Civil Procedure Code ‘1908. lt provides that any person considering himself aggrieved by a decree or order may apply for a review of judgement to the court which passed the decree or made the order on any of the grounds as mentioned in Order 47 Rule 1, namely-

1. discovery by the applicant of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or
2. on account of some mistake or error apparent on the face of the record, or
3. for any other sufficient reason, and the Court may make such order thereon as it thinks fit.

Whereas Section 115 of the Civil Procedure Code 1908 deals with revision. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

1. to have exercised a jurisdiction not vested in it by law, or
2. to have failed to exercise a jurisdiction so vested, or
3. to have acted in the exercise of its jurisdiction illegally or with material ( irregularity, the High Court may make such order as it thinks fit.

Provided that the High Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or proceeding except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.

Descriptive Questions

Question 1: Explain the following: ‘Cause of action’ under the Code of Civil Procedure, 1908. 
Answer:

‘Cause of action’ under the Code of Civil Procedure, 1908

The right of review has been conferred by Section 114 and Order 47 Rule 1 of the Civil Procedure Code 1908. It provides that any person considering ‘Cause of action’ as per the Code of Civil Procedure, 1908, includes everything that the plaintiff would have to prove in order to claim the right to file a suit in any court of law.

It includes anything that gives the plaintiff the right to file a suit in order to enforce his rights. It presupposes two things –

• Firstly, that there was a right which accrued to the plaintiff.
• Secondly, the right accruing to him was infringed, giving rise to a cause of action, i.e. a right to file a suit for the legal enforcement of his right.

Section 20(c) of the Code of Civil Procedure says that every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. That means that the cause of action entails the right to file a suit in the court within the local limits of which the cause of action arose.

Question 2: Attempt the following:
Explain the rules relating to delivery of summons by court under the Code of Civil Procedure (Amendment) Act, 2002.
Answer:

The rules relating to delivery of summons by court under the Code of Civil Procedure (Amendment) Act, 2002

As per Rule 9 of the Code of Civil Procedure (Amendment) Act, 2002-

Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.

The proper officer may be an officer of a Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him in such manner as the Court may direct.

The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.

Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of Rule 21 shall not apply.

When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.

The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).

Mode of service.- Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the court.

Service on several defendants. Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.

Service to be on defendant in person when practicable, or on his agent.- Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.

Service on agent by whom defendant carries on business.-

In a Suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.

For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer. Service on agent in charge in suits for immovable property.- Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.

Where service may be on an adult member of defendant’s family.- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence. within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation: A Servant is not a member of his family within the meaning of this rule.

Person served to sign acknowledgement. Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.

Procedure when defendant refuses to accept service, or cannot be found.

Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and ‘whose presence the copy was affixed.

Question 3: Discuss in brief the main remedies available to a person against whom ex parte decree is passed. (5 marks)
Answer:

Remedies available to a person against whom ex parte decree has been passed:

An ex parte decree is a decree passed in the absence of the defendant (in absentia). Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a decree against him.

Such a decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi parte decree and it has all the force of a valid decree.
Remedies

The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:

1. Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
2. Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies);
3. Apply for review: Order 47 Rule 1; or
4. File a suit on. the ground of fraud.

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently. “Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other.”

Question 4: Discuss the doctrine of ‘Res Sub Judice’ under Section 10 of Civil Procedure Code, 1908.
Answer:

Section 10 of the Code of Civil Procedure, 1908 covers the doctrine of res sub-judice. The doctrine of res sub-judice refers to a matter pending before a Judge, or Court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet.

The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other Court until it has been decided upon in the first Court the matter was filed in.

This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908). When such a case arises, generally a stay operates on the second or following suit.

The doctrine of res sub-judice refers to a matter pending before a Judge, or Court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet.

The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other Court until it has been decided upon in the first Court the matter was filed in.

This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908). This doctrine, however, is not applicable if a suit is pending in a foreign Court; in such a situation, the Indian Courts can still initiate a case.

Question 5: In a civil case what remedies are available for the defendant against whom an ex-parte decree had been passed by the court?
Answer:

Remedies available to a person against whom an ex parte decree has been passed:

An ex parte decree is a decree passed in the absence of the defendant (in absentia). Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the Court may hear the suit ex parte and pass a decree against him.

Such a decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi parte decree and it has all the force of a valid decree.

Remedies:

The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:

1. Apply to the Court by which such decree is passed to set it aside: Order 9, Rule 13;or
2. Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies);
3. Apply for review: Order 47, Rule 1; or
4. File a suit on the ground of fraud.

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently. “Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other.”

Question 6: The Civil Court has power to grant temporary injunction, but for obtaining the same the plaintiff is required to satisfy the Court. Explain in brief.
Answer:

The Civil Court has power to grant temporary injunction, but for obtaining the same the plaintiff is required to satisfy the Court

The Court may grant temporary injunction to restrain any such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation or sale or removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit; where it is proved by affidavit or otherwise:

1. that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
2.  that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, or
3. that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

It would be necessary for the plaintiff to satisfy the Court that (i) substantial and irreparable harm or injury would be suffered by him if such temporary injunction (till the disposal of the suit) is not granted (ii) the balance of convenience lies in his/her favour and (iii) that such loss or damage or harm cannot be compensated by damages.

Question 7: ‘Explain provisions of summary procedure’ including leave to defend under Civil Procedure Code. photodat 
Answer:

Order 37 of the Civil Procedure Code provides for a summary procedure in respect of certain suits. The object is to prevent unreasonable obstruction by a defendant. A procedure by way of summary suit applies to suits upon bill of exchange, hundies or promissory notes, when the plaintiff desires to proceed under the provisions of Order 37.

The rules for summary procedure are applicable to the High Courts, City Civil Courts and Small Courts and such other Courts.

Leave to defend

Order 37 Rule 3 of the Civil Procedure Code prescribe the mode of service of summons etc. and leave to defend. The defendant is not entitled to defend the suit unless he enters an appearance within 10 days from the service of summons.

Such leave to defend may be granted unconditional or upon such term as the Court or the Judge may think fit. However, such leave shall not be granted where:

1. the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence or that the defences are frivolous or veracious, and
2. the part of the amount claimed by the plaintiff and admitted by the defendant to be due from him is not deposited by him in the Court.

On the hearing of such summons for judgement, the plaintiff shall be entitled to judgement provided the defendant has not applied for leave to defend or if such application has been made and is refused or where the defendant is permitted to defend but he fails to give the required security within the prescribed time or to carry out such other precautions as may have been directed by the Court.

After decree. the Court may. under special circumstances set-aside the decree and if necessary stay or set aside execution, and may give leave to the defendant to appear and to defend the suit. (Order 37 Rule 4)

Question 8:  Explain the difference if any, in between ‘Res Judicata’ and ‘Res Sub-Judice’.
Answer:

the difference if any, in between ‘Res Judicata’ and ‘Res Sub-Judice’

The Rule of Res Sub Judice relates to a matter which is pending judicial enquiry while Res Judicata relates to a matter adjudicated upon or a matter on which judgement has been pronounced. Res Sub Judice bars the trial of a suit in which the matter directly or substantially is pending adjudication in a previous suit.

whereas rule of res judicata bars the trial of a suit of an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit between the same parties under the same title.

Res Judicata arises out of considerations of public policy viz., that there should be an end to litigation on the same matter. Res-Judicata presumes conclusively the truth of the former decision and ousts the jurisdiction of the

Court to try the case. It is however essential that the matter directly and substantially in issue must be the same as in the former suit and not matters collaterally or incidentally in issue.

Question 9: What do you understand by ‘set off’ and ‘counter-claim’ under the Civil Procedure Code, 1908? What is the effect of set-off?
Answer:

Set-off

Order VIII, Rule 6 of Civil Procedure Code, 1908 deals with set-off which is a reciprocal acquittal of debts between the plaintiff and defendant. It has the effect of extinguishing the plaintiff’s claim to the extent of the amount claimed by the defendant as a counter claim.

Under Order VIII, Rule 6 of Civil Procedure Code, 1908 where in a suit for the recovery of money the defendant claims to set off against the plaintiff(s) demand any ascertained sum of money legally recoverable by him from the plaintiff not exceeding the pecuniary jurisdiction of the Court and where both parties fill the same character as in the plaintiff is suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

Counter-claim

A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filling of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of claim for damages or not. Such counter-claim must be within the pecuniary jurisdiction of the Court. (Order VIII, Rule 6A).

Effect of Set-off

The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgement in respect both of
the original claim and of the set-off, but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

Question 10: How ‘Decree’ is defined under Section 2(2) of the Civil Procedure Code, 1908 and mention essentials of a Decree.
Answer:

Decree Order:
Decree is defined under Section 2(2) of the Code of Civil Procedure. It reads “decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final”.

• Formal expression of adjudication.
• Conclusive determination of the rights of parties.
• The decision or determination must be with regard to all or any of the matters covered under the suit.
• Decision or adjudication must be a part of the suit.

Some other important points related to decrees may also be noted:

• A decree may be partly preliminary and partly final.
• A decree comes into existence as soon as the judgment is pronounced and not on the date when it is sealed and signed. (Order 20 Rule 7)
• A decree is termed as preliminary when further proceedings have to be taken before the suit can be completely disposed of.
• The preliminary decree is not dependent on the final, as it is previously passed and later facts might change the decision of the Court.
• A final decree is dependent and subordinate to the preliminary decree, and gives effect to it.
• The preliminary decree ascertains what is to be done while the final decree states the result achieved by means of the preliminary decree.
• If the preliminary decree is set aside the final decree is automatically superseded, as the very base of the final decree is erased. Space to write important points for revision

Question 11: Elaborate the provisions of Civil Procedure Code, 1908 regarding suits by or against minors and what will be the impact after minor attains the age of majority?
Answer:

The provisions of Civil Procedure Code, 1908 regarding suits by or against minors

According to the Indian Majority Act, unless a particular personal law specifies otherwise, every person domiciled in India is deemed to have attained majority upon completion of 18 years of age.

However, in case a guardian has been appointed or declared by any Court of justice for a minor’s person or property, or both, before the age of 18 years, and in case of every minor the superintendence of whose property has been assumed by the Court of Wards, age of majority will be 21 years and not 18.

The following things need to be kept in mind in case of suits by or against minors:

If plaintiff is a minor:

For such a person to be able to file a suit, it is essential that it be done through the ‘next friend’, who will institute all suits on behalf of the minor. Such a person is to be a major and legally capable of acting on behalf of the minor.

If the interests of the next friend are contrary to those of the minor, he is automatically taken as a defendant, in case the minor is the plaintiff. Suits institutes without next friends of minors may be removed if the defendant applies for such removal.

If defendant is a minor:

The Court will provide a guardian for the person and his property, and to represent him in the suit. Such a person will hold the position until the culmination of the suit in the original or appellate Court(s), and be removed earlier only by reason of death or incapacity.

In case of minor attaining majority while the suit is ongoing, he can choose to continue with the suit or to discontinue the proceedings by withdrawing the suit.

Question 12:  Whether in case of consent and compromise decree in between parties, principle of Res Judicata shall apply? Discuss.
Answer:

The Doctrine of Res Judicata

This Doctrine prevents further suits being filed for a matter that is at the core of a former suit. The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s).

Section 11 of the Code of Civil Procedure, 1908 deals with the doctrine of Res Judicata. The doctrine underlines the general principle that no one shall be twice vexed for the same cause, however, it does not apply in case of Consent and Compromise between parties, but depends on the Court, subject to the facts of the case.

Primarily, consents or compromise decrees do not come within the definition of decisions of Court. Rather, they are something to which both parties or all parties have willingly agreed to, and not under Court direction or guidance.

On the other hand, the Court puts its seal signifying its acceptance of the agreement the parties have come to. This doctrine applies to consent or compromise decree only when the dispute in question is finally determined by the consent or compromise, and the Court of this.

Question 13: What is Temporary injuction under the Code of Civil Procedure, 1908? Under what circumstances can it be granted? Discuss.
Answer:

Temporary injuction under the Code of Civil Procedure, 1908

‘Temporary injunctions’, according to Order XXXIX of the Code of Civil Procedure, 1908, means an order passed by a court to restrain someone from doing something that would result in alienation of property, or its destruction, or when the plaintiff is in danger of being dispossessed altogether.

The plaintiff needs to establish to the satisfaction of the court that the losses suffered by him would be irreversible, and of such a nature as cannot be compensated, if the injunction is not granted.

Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it remains pending.

A prima facie case and balance of convenience in the plaintiff’s favor are essential to get a temporary injunction issued.

Question 14: Discuss the provision of Civil Procedure Code, 1908 which prevents multiplicity of suits in respect of same cause of action. 
Answer:

The provision of Civil Procedure Code, 1908 which prevents multiplicity of suits in respect of same cause of action

This is implicit in the Doctrine of Res Judicata. ‘The Doctrine of Constructive Res Judicata’ has been provided in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below

• The same party should not be troubled with the same matter again and again.
• There should be a limit to the number of cases filed in a court, i.e. vexatious cases should not be entertained.
• The same matter should not be used for wasting valuable court time repeatedly.

The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s).

Question 15 It is well settled law that for grant of temporary injunction, three factors have to be satisfied, which are prima facie case, balance of convenience and irreparable loss. Discuss.

Answer:

Temporary injunctions: Temporary injunctions are those which are to continue until a specified time or until further orders of the court (Section 37 for the Specific Relief Act). It is ordered as an interim measure to preserve the status quo of the situation or the case until it is heard and finally decided.

Interlocutory or temporary injunction:

It may be granted at any stage of a suit and comes under the Civil Procedure Code. Such injunctions are necessarily provisional in nature. It does not finally declare or determine a right. The granting of temporary injunction is a discretionary right in the hands of the court.

‘Temporary injunctions’, according to Order XXXIX of the Code of Civil Procedure, 1908, means an order passed by a court to restrain someone from doing something that would result in alienation of property, or its destruction, or when the plaintiff is in danger of being dispossessed altogether.

The plaintiff needs to establish to the satisfaction of the court that the losses suffered by him would be irreversible, and of such a nature as cannot be compensated, if the injunction is not granted.

Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it
remains pending.

A prima facie case and balance of convenience as well as proving that irreparable loss would occur if the situation is not remedied by a temporary injunction in the plaintiff’s favor are essential to get a temporary injunction issued.

However, it is upto the discretion of Courts. Generally such injunctions are given where a substantial question to be investigated, which has relevant related matter to be preserved intact till the conclusion of the investigation. Moreover, the Court considers the balance of convenience and inconvenience as relevant to both parties.

Question 16:  Discuss the provisions relating to place of suing
Answer:

Place of Suing (Territorial jurisdiction):

Section 15 of the Code of Civil Procedure, 1908 provides that initially, cases are to be filed in the lowest court eligible to hear them. However, the section 15-18 of he Code are not a comment on the competency of the court; they merely exist to pinpoint the venue for reasons of ease and expediency.

As per the Section 16, subject to the pecuniary or other limitations prescribed by any law, the following property-related suits shall be filed in the Court within the local limits of whose jurisdiction the property is situated:

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

• for recovery of immovable property with or without rent or profits;
• for partition of immovable property;
• for foreclosure of sale or redemption in the case of a mortgage or charge upon immovable property;
• for the determination of any other right to or interest in immovable property;
• for compensation for wrong to immovable property.

Practical Questions

Question 1:  A transport company has its head office at Kolkata and branch offices at Allahabad, Lucknow and Puri. A dispute cropped up between Hassan and the transport company in respect of a transaction through Allahabad office. Hassan files a suit in respect of this dispute against the company in a court at Puri. Is the court at Puri competent to decide this case? Give reasons. 
Answer:

The suit can only be filed in Kolkata or Allahabad, but not in Puri, as per Section 20 of the Code of Civil Procedure.

The Civil Procedure Code 1908, Section 20, tells about where suits are to be instituted where defendants reside or cause of action arises.

• the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
  any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
  the cause of action, wholly or in part, arises.

Question 2:  A suit was instituted by the plaintiff company alleging infringement by the defendant company by using trade name of medicine and selling the same colour combination, etc., as that of plaintiff company. A subsequent suit was instituted in a different court by the defendant
company containing the same allegations. Advise the plaintiff company about the steps to be taken by it giving reference to relevant legal provisions and case law. (5 marks)
Answer:

In this case, the plaintiff can file an application for a stay on the subsequent suit. ‘Stay of suit’ implies the action taken under Section 10 of the Code of Civil Procedure, 1908. It is the Doctrine of res sub-judice. The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided.

It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet. The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in.

This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908). When such a case arises, generally a stay operates on the second or following suit.p Space to write important points for revision

Question 3: ‘A’ is a warehouse-keeper. ‘Z’ going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. Discuss, when offence, if any, committed by A ?
Answer:

Criminal breach of trust: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. (Section 405, the Indian Penal Code, 1860).

In this case, A who is a warehouse-keeper is given some furniture for safekeeping by Z, who is going on a journey. The transaction is placed under a contract that says that the furniture shall be returned on payment of an agreed amount for warehousing space.

A dishonestly sells the goods. Hence, it can be derived that on so doing, A has committed criminal breach of trust as against Z.

Descriptive Questions

Question.1: Explain the following terms.
Answer:

Decree-holder – A decree holder is one in whose favour a decree has been passed or an order capable of execution has been made [Section 2(3)]. Hence, even a third person in whose favour an order capable of execution is passed, is a decree-holder regardless of the fact that he is not a party to the suit.

Judgment-debtor – This is the person against whom a decree or an order capable of being executed has been passed. The definition does not include legal representative of a deceased judgment-debtor [Section 2(10)].

Question.2: Which orders are appealable?
Answer:

The Code of Civil Procedure, 1908 provides for an appeal against the following orders, under Section 104

• An order for compensatory costs in respect of untrue or vexatious claims or defenses (Section 35A)
• An order for relief under Sections 91 and 92 of the Code of Civil Procedure, 1908, which cover public nuisances and other wrongful acts affecting the public and in the case of any suspected breach of any express or constructive trust of a charitable or religious nature.
• In any suit in which an arrest or attachment has been effected or a temporary injunction granted under Section 95, where the aggrieved feels that he has been arrested on insufficient grounds.
• An order under this Code inflicting a punishment of fine or arrest or detention, except where such arrest or detention is in execution of a decree. Other than these, any other order that is expressly stated as such in the Code of Civil Procedure, 1908, can be appealed against.

Question.3: Explain about the structures of courts, their jurisdiction and the venue of suits.
Answer:

Structure of Civil Courts

Section 3 of the Civil Procedure Code provides that High Court is superior to the District Court and the District Court is superior to all lower courts which also logically come under the High Court.

Jurisdiction of Courts and Venue of Suits

Jurisdiction is of three types – pecuniary, territorial and appellate. The limits of jurisdiction are imposed by charter, statute or a commission. If no such limit is specified, the jurisdiction is deemed to be unlimited.

A limitation on jurisdiction of a Civil Court may be of four kinds. These are as follows:

1. Jurisdiction over the subject matter e.g. family court, a small cause court etc.
2. Place of suing or territorial jurisdictione.g. a District Court can determine cases from within its own district, and not beyond.
3. Jurisdiction over persons Generally, all persons of whatever nationality are subject to the jurisdiction of the Civil Courts of the country except a foreign State, it’s ruler or its representative except with the consent of Central Government. For example, employees of consulates, diplomats etc.
4. Pecuniary jurisdiction depending on pecuniary value of the subject bay matter or the damages sought or the suit – This is applicable only when provided in the statutes. There is no limit on pecuniary jurisdiction of High Courts and District Courts.

Jurisdiction may further be divided into the following categories depending upon their authority or powers:

1. Original Jurisdiction – A Court can try and decide suits filed before it.
2. Appellate Jurisdiction A higher Court has the authority to hear appeals against the decisions or decrees passed by subordinate Courts.
3. Criminal and appellate Jurisdiction The Supreme Court, the High eure Courts and the District Courts have both original and appellate jurisdiction in various matters.

Section 9 of the Civil Procedure Code provides that Courts shall have jurisdiction or authority to try all suits of a civil nature excepting suits expressly or impliedly barred from their jurisdiction.

Question.4: Explain about the place of suing.
Answer:

Place of Suing (Territorial jurisdiction)

• Section 15 provides that initially, cases are to be filed in the lowest court eligible to hear them.
• As per the Section 16, subject to the pecuniary or other limitations prescribed by any law, the following property-related suits shall be filed in the Court within the local limits of whose jurisdiction the property is situated :
  • for recovery of immovable property with or without rent or profits;
  • for partition of immovable property;
  • for foreclosure of sale or redemption in the case of a mortgage or charge upon immovable property;
  • for the determination of any other right to or interest in immovable property;
  • for compensation for wrong to immovable property;
  • for the recovery of movable property actually distraint or attachment.

Section 17 provides that where immovable property is situated within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction the property is situated provided the value of the entire claim is summarized by such Court.

Section 18 says that where the local limits of jurisdiction of Courts are uncertain, then any of the said Courts may proceed to entertain the suit after having recording a statement laying down the grounds for such alleged uncertainty.

Section 19 says that where the suit is for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the Courts, ale akisqs

Section 20 provides that all other suits are to be instituted where defendants reside or where the cause of action arises, subject to the limitations provided by Sections 15, 16, 18 and 19, every suit shall be instituted in a Court within local limits of whose jurisdiction the defendant, or each of the defendants (where there are multiple) actually and voluntarily resides or carries on business or personally works for gain or where such defendants actually and voluntarily resides or carries on business or personally works for gain.

In the case of a body corporate or company it shall be deemed to carry on business at its sole or principal office in India, or in case of any cause of action arising at any other place, if it has a subordinate office, at that place.

Where there might be multiple competent courts which could entertain a suit consequent upon the cause of action having partly arisen within their jurisdiction, the parties to the contract can agree to vest jurisdiction in one such court to try the dispute.

Such an agreement would be valid al [Angile Insulations v. Davy Ashmore India Ltd.].

Question.5: Explain the doctrines of Res judicata and Res sub judice.
Answer:

The doctrines of Res judicata and Res sub judice

The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet.

The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in.

This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908).

The doctrine of ‘Constructive Res Judicata’ that is provided for in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The requirements and reasons are as below –

• The same party should not be troubled with the same matter again and again.
• There should be a limit to the number of cases filed in a court, i.e. vexatious cases should not be entertained.
• The same matter should not be used for wasting valuable court time repeatedly.

The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s). Since this is not the case here, the subsequent suit will not be maintained and Aman will not succeed. (Mukunda Jana vs. Kanta Mandal) .

Question.6: What are the essentials of a decree?
Answer:

The following requirements constitute a decree –

• Formal expression of adjudication
• Conclusive determination of the rights of parties
• The decision or determination must be with regard to all or any of the matters covered under the suit
• Decision or adjudication must be a part of the suit.

Some other important points related to decrees may also be noted –

• A decree may be partly preliminary and partly final.
• A decree comes into existence as soon as the judgment is pronounced and not on the date when it is sealed and signed. (Order 20 Rule 7)
• A decree is termed as preliminary when further proceedings have to be taken before the suit can be completely disposed of.
• The preliminary decree is not dependent on the final, as it is previously passed and later facts might change the decision of the Court.
• A final decree is dependent and subordinate to the preliminary decree, and gives effect to it.
• The preliminary decree ascertains what is to be done while the final decree states the result achieved by means of the preliminary decree.
• If the preliminary decree is set aside the final decree is automatically superseded, as the very base of the final decree is erased.

Question.7: What are the essential conditions for stay of a suit?
Answer:

The following conditions are essential for a stay on suits –

• There have to be filed two suits at different points of time.
• The matter in question in both suits has to be the same.
• The parties to both suits must be the same.
• The previous suit must be pending in an Indian court, at the time of filing of the second suit.

When all these conditions exist, the second suit is stayed till the conclusion of the first one. Moreover, the facts of the first case would be considered as res judicata in context of the second suit.

Question.8: What are the conditions for res judicata to be applicable?
Answer:

The following conditions make the applicability of res judicata a surety-

• The matter should be substantially the same in both the suits.
• The parties in both the suits have to be the same, either the original parties or the persons claiming under them.
• The titles under which they are fighting the suit should be the same in both the cases.
• The relevant court in the previous suit must be competent to hear the subsequent suit.
• The issue of fact should be the same in both cases, either wholly or substantially.

Moreover, Section 12 of the Act puts a bar on any further suit where the plaintiff is prohibited from filing a fresh suit by certain rules, regarding a particular cause of action.

Question.9: When does the court ask for the deposit of money in any case?
Answer:

Deposit of money etc. in the Court

This is done in the following cases –

• When money or some other article that is capable of delivery is the subject matter of a suit, and it is held by any party for another as a trustee.
• It belongs or is due to another party. In these cases, the Court can also order it delivered to such last-named party, with or without security (Rule
  (10).

Moreover, in certain cases, the plaintiff might apply to have the defendant restrained, to stop him from committing a breach of contract or other injury of any kind. It can be demanded either with or without compensation, at any time after the commencement of the suit, and either before or after judgment.

For this, an application for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like nature arising out of the same contract or relating to the same property or right is made to the relevant Court. This is a discretionary power of the Court.

Question.10: What are the essentials of a suit? Where can a suit be filed? even

Answer:

The essentials of a suit

A suit is a civil action, initiated by presenting a plaint. It is to be presented in duplicate to the relevant Court and should contain a concise statement as to the material facts, on which the party pleading relies for his claim or defence.

These facts are to be proved by an affidavit.

The main essentials of the suit are-

• A heading
• A title
• The body of the plaint and
• The relief(s) claimed.

The following points are to be kept in mind regarding the filing of a suit –

• Every suit is to be instituted in the Court of the lowest grade competent to try it.
• Competency of the Court has to be determined with regard to the subject matter either immovable or movable property or to the place of residence or of business of the defendant.T
• A suit for a tort may be brought either where the wrong was committed or where the defendant resides or carries on business.
• A suit for a breach of contract may be instituted in a Court within the local limits of whose jurisdiction the defendant or each of the defendants (where there are multiple) at the time of commencement of the suit actually or voluntarily resides or carries on business or personally works for gain, or where any of the defendants so resides or works for gain or carries on business provided the permission of the Court is given or that the other defendants agree to it.
• A suit for breach of contract may also be instituted where the cause of action arises that is, where the contract was made or where the breach was committed.
• A suit for recovery of immovable property can be instituted in a Court within the local limits of whose jurisdiction the property or any property of it is situate.
• Regarding other suits, they shall be instituted in a Court within the local limits of whose jurisdiction:
  • the defendant or each of the defendants if there are more than one at the time of the commencement of the suit actually or voluntarily resides or carries on business or personally works or gain or
  • any of the defendants, where there are more than one at the time of the commencement of the suit, actually or voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
  • the cause of action wholly or in part arises.

Question.11: What is ‘discovery’ and ‘discovery by interrogatories’?
Answer:

‘Discovery’ and ‘discovery by interrogatories’

Discovery and interrogatories and production of documents

‘Discovery’ means finding out important facts, documents and material from the counter-party so that the case can be prepared. It also helps in pin-pointing the points at issue. Discovery can be achieved in two ways (a) by interrogation (b) by study of documents.

The main purpose of discovery is to:

1. Find out what the details and material facts of the adversary’s case.
2. Attain admissions of the adversary, so that own case can be benefitted.
   This can also have the indirect effect of impeachment or logical one destruction or deconstruction of the adversary’s case.
3. Narrow down the points at issue, so that specific points can be focused upon.
4. Avoid unnecessary cost, time and effort in proving facts that have already been admitted.

Discovery by interrogation

A party to a suit can apply to the Court for permission to examine or interrogate the opposite parties. The court may not, however, allow this for the following purposes:

1. For discovery of facts related solely to the evidence of the adversary’s case or title, for this would weaken his case.
2. To question about confidential communications between the other party and his lawyer.
3. To obtain revelations that might be injurious to public interests.
4. To interrogate in a ‘fishing’ nature i.e. without asking specific and relevant questions, and instead resorting to oblique questioning in the hope of obtaining something useful. Such enquiry, being purely of a speculative nature, will not be allowed.

Discovery by examining documents

Parties are required to submit additional copies of all documents that they submit to the Court, so that they can be forwarded to the other parties. These documents can then be used for discovery of information that might be relevant to the case.

A party may also apply to the Court for an order instructing a party to the suit to make available documents that are in his possession for discovery of information on oath.

In case of refusal by the other party, such documents may not be allowed to be admitted as evidence by the Court (O.11, R.15), unless the party is able to prove to the Court that such documents relate only to his own title.

Refusal to produce the document for inspection can be made on the following grounds:

1. Where it divulges a party’s evidence untimely or prematurely
2. When it is protected by a legal/professional privilege
3. When it is injurious to public interest
4. When the party claims not to have possession of the document in question.

Such denial can only be affected by an affidavit; thereupon the other party demanding that document cannot cross-examine upon it, nor cite evidence to contradict it, because in all questions of discovery the oath of the party in possession of the document is deemed to be conclusive (Kedarnath v. Vishwanath).

Cognizable offence

‘Cognizable offence’ means an offence for which no bail is available. It is an offence for which anyone can be arrested without a warrant. This is as per the Code of Criminal Procedure, 1973, Section 2.

These are outlined in the First Schedule to the Code. An example of a cognizable offence would be murder. These are generally non-bailable offences.

Non-cognizable offence

A ‘non-cognizable offence’, on the other hand, is an offence for which the perpetrator cannot be arrested without a warrant. These are bailable as they are not of as serious a nature as the cognizable offences, an example of which is petty theft.

Inquiry

‘Inquiry’, as per Section 2(g) of the Code of Criminal Procedure, 1973 means “every inquiry, other than a trial, conducted under this Code by a Magistrate or court”. It can be said to be the query a court conducts to decide whether or not a matter is fit for further proceedings.

Investigation

‘Investigation’, implies “all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.” [Section 2(h) of the Code].

It is helpful in reaching to the main facts of a case. After an investigation, the officer conducting it is required to submit a report of his findings to the Magistrate who ordered such the investigation.

Trial

‘Trial’ means judicial proceedings in the Court of Sessions or the High Court. Such a process involves examining witnesses on oath. They can result in the accused being discharged, acquitted or convicted.

FIR

An ‘FIR’ or ‘First Information Report’ is the primary report of an offence having been committed. It takes the form of a formal complaint being lodged by the aggrieved or victim, or by someone else acting for him.

This can be done either orally or in writing. This report is to be made to the police. The police start the proceedings on the basis of this report. An FIR can be filed by anyone who knows of the commission of a cognizable offence, not just by the aggrieved. Hence, it can even be filed by a police officer or a third party.

Learn and Read More CS Executive JIGL Question and Answers

Complaint

A ‘complaint’ is a report to the Magistrate. This can be in writing or even oral. It does not include the FIR. The intention of making such a report should be to obtain redressal with the aid of the procedures specified under law.

Summons case

A ‘summons case’ is one that is punishable with imprisonment upto and including two years. The procedure for the trial of these cases is as per Chapter XX of the Code of Criminal Procedure, 1973.

They normally relate to minor offences, and are heard or resolved not through the normal route but using the summary procedure. This remains, as of today, the judge’s discretionary power though.

Warrant cases

‘Warrant cases’ are those punishable with an imprisonment of more than two years or with a life sentence or a death sentence. Chapter XIX of the Code of Criminal Procedure, 1973, covers the trial of warrant cases.

Bailable offences

All the offences included in the list of bailable offences given in the First Schedule of the Code of Criminal Procedure are termed as bailable. Other acts can also provide for bailable offences.

These are relatively non-serious offences, against which an individual can be let off on bail. All bailable offences are non-cognizable, i.e. no arrests can be made for such offences unless a warrant has been issued for that purpose.

Non-bailable offences

Non-bailable offences are those that are not included in the First Schedule of the Code of Criminal Procedure. These are cognizable; arrest can be afforded without a warrant. In this list are included all serious offences.

Anticipatory bail

‘Anticipatory bail’ is bail given to a person who has apprehensions that he would be placed under police custody. In order to get out of this predicament, he can apply to the High Court or to the Court of Sessions to obtain bail in advance. This can only be done until the person is not arrested; after the arrest, the only option left is the ordinary bail.

General Laws Distinguish Between Question and Answers

Question 1: Distinguish between the following” summons and warrant of arrest”. 
Answer:

Difference between summons and warrant of arrest

Question 2: Distinguish between cognizable and non-cognizable offence under the Criminal Procedure Code, 1973.
Answer:

Difference between cognizable and non-cognizable offence under the Criminal Procedure Code, 1973

‘Cognizable offence’ means an offence for which no bail is available. It is an offence for which anyone can be arrested without a warrant. This is as per the Code of Criminal Procedure, 1973, Section 2. These are outlined in the First Schedule to the Code. An example of a cognizable offence would be murder. These are generally non-bailable offences.

A ‘non-cognizable offence’, on the other hand, is an offence for which the perpetrator cannot be arrested without a warrant. These are bailable as they are not of as serious a nature as the cognizable offences, an example of which is petty theft.

If there are multiple offences, and even one is cognizable, all of them would be handled as cognizable offences.

General Laws Descriptive Questions

Question 3: Attempt the following: When can the Magistrate take cognizance of an offence?
Answer:

Section 190 of the Code of Criminal Procedure, 1973 covers taking of cognizance of offences by magistrates. It can be done when he receives an intimation of the fact in any of the following ways –

• Upon complaint of the offence When a police officer reports the happening of such an offence
• When he corne to know of such an offence being committed
• When information regarding such an offence is received from someone other than the police

The magistrate takes cognizance only when the required procedure is followed. In case the case is initiated other than by the magistrate acting suo motu, the accused can apply for an inquiry to be held.

Section 191. Transfer on application of the accused.

When a Magistrate takes cognizance of an offence under clause (c) of sub-section (i) of Section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

Section 192. Making over of cases to Magistrates.

Any Chief Judicial Magistrate (CJM) may, after taking cognizance, hand over the case for inquiry or trial to and competent Magistrate subordinate to him.

Likewise, any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial. Space to write important points for revision

Question 4: Discuss the summary trial by a Magistrate under the Criminal Procedure Code, 1973.
Answer:

The summary trial by a Magistrate under the Criminal Procedure Code, 1973

A ‘summary trial’ is a fast-track procedure that provides for speedy trial of A cases. Under Section 260 of the Code of Criminal Procedure, 1973, any Magistrate of First Class or a Metropolitan Magistrate or a Chief Judicial Magistrate can hear cases of offences not punishable with death, life imprisonment or even imprisonment of more than two years in a summary trial. Included would be offences like petty theft (where the value of the stolen property does not exceed rupees 2,000), assisting in such theft or in keeping its proceeds hidden, acquiring or keeping such stolen property, trespass, breaking into a house, insulting someone with the intention of provoking him to a violent act, and helping anyone in the performance of these crimes.

Section 261 covers the conduct of a summary trial by a Magistrate of Second Class.

Section 262 provides the procedure involved in a summary trial. These cases are also known as summons cases, since they do not normally make use of warrants. Moreover, the maximum punishment that can be pronounced in such cases is of imprisonment upto three months.

Question 5: Enumerate any four categories of cases in which a police officer may arrest a person without an order from magistrate and without a warrant under section 41 of Cr.P.C., 1973.
Answer:

Section 41 of Criminal Procedure Code, 1973 provides that any police officer may without an order from a Magistrate and without a warrant, arrest any person:

Who commits, in the presence of a police office, a cognizable offence (b) Against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:

• the police has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
• the police officer is satisfied that such arrest is necessary –
• to prevent such person from committing any further offence; or
•  for proper investigation of the offence; or
• to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
• to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
• as unless such person is arrested, his presence in the Court whenever required cannot be ensured and the police officer shall record while making such arrest, his reason in writing;
  (ba) against whom credible information has been received that he has committed a cognisable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on
  the basis of that information that such person has committed the said offence;
• who has been proclaimed as an offender either under this Code or by ( order of the State Government; or
• in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
• who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
• who has been concerned in, or against whom reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
• who, being a released convict, commits a breach of any rule, made under (section 356(5)); or
• for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

Question 6: Describe in brief the cases in which a Search Warrant can be issued under Section 93 in the Criminal Procedure Code, 1973.
Answer:

According to Section 93 of the Criminal Procedure Code, 1973, a search warrant can be issued only in the following cases:

1. Where the Court has reason to believe that a person summoned to produce any document or other thing, will not produce it
2. Where such document or other thing is not known to the Court to be in the possession of any person
3. Where a general inspection or search is necessary. However, a search warrant may be general or restricted in its scope as to any place or part thereof.

Question 7: Discuss the provisions relating to information to the police and their power to investigate in cognizable and non-cognizable cases under the Criminal Procedure Code 1973.
Answer:

The provisions relating to information to the police and their power to investigate in cognizable and non-cognizable cases under the Criminal Procedure Code 1973

Information in cognizable cases and investigation of such cases. According to Section 154 of the Criminal Procedure Code 1973, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant.

Every such information shall be signed by the person giving it and the substance thereof shall be entered in a book kept by such officer in such form as may be prescribed by the State Government in this behalf.

The above information given to a police officer and reduced to writing is known as First Information Report (FIR). The investigation of the case proceeds on this information only. Thus, the principal object of this Section is to set the criminal law in motion and to obtain information about the alleged criminal activities so as to punish the guilty.

For the purpose of enabling the police to start investigation, it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in charge of the police station as indicated in Section 154 of the Code.

Any person aggrieved by a refusal on the part of an officer incharge of a police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police concerned who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.

Information as to non-cognizable cases and investigation of such cases As per Section 155 of the Criminal Procedure Code 1973, when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate.

The police officer is not authorised to investigate a non-cognizable case without the order of Magistrate having power to try such cases, and on receiving the order, the police officer may exercise the same powers in respect of investigation as he may exercise in a cognizable case.

Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

In case of a cognizable offence the police officer may conduct investigations without the order of a Magistrate. Investigation includes all proceedings under the Code for the collection of evidence by the police officer or by any person who is authorised by the Magistrate in this behalf. Space to write important points for revision

Question 8: Section 41 of the Criminal Procedure Code, 1973 enumerates the different categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. Explain any five Categories of such cases.
Answer:

‘Arrest’ is covered under Section 41 of the Code of Criminal Procedure, 1973. It gives a police officer to arrest a person without a warrant or order
from a Magistrate. This can be done in extreme cases like –

• When a complaint is received against a person suspected of a cognizable offence
• In cases of house-breaking
• When an accused escapes from police custody or a convict fails to give notice of his changed residence.
• Someone who is liable to be extradited, or is to be kept in custody in India, under some law or a treaty.
• When a police officer receives any reacquisition by another police officer as to the arrest and reason behind the arrest of any person.

Section 42 of the Code says that when a person accused of perpetrating a non-cognizable offence refuses to give information as to his name and address or gives false details; he can be arrested and detained for not more than twenty-four hours.

Section 43 provides for arrest by a private person. This Section says that a private person can arrest or have a known offender or a perpetrator of a non-cognizable offence arrested. This can be done without a warrant.

Section 46 provides for the process to be followed for arrest. It specifies that anyone affecting an arrest has the right to detain the person arrested, or to touch his body or catch hold of him so that he cannot attempt an escape successfully.

This would be resorted to only when the person who is to be arrested is resisting the attempts at such arrest. While doing so, it is not allowed to hurt him to the extent of killing him, specially a person who is not punishable with a death sentence.

All persons arrested in the manners provided for above have to be taken to a Magistrate within 24 hours, as per the Constitution of India.

Question 9: Define ‘Complaint’ under Criminal Procedure Code, 1973.
Answer:

‘Complaint’ under Criminal Procedure Code, 1973

Complaint” means any allegation made orally or in writing to a magistrate that some person known or unknown has committed an offence but it does not include a police report [Section 2(d) Cr. P.C.].

However, a report made by the police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer making the report is deemed to be as complaint.

In general, complaint about an offence can be filed by any person except in cases of offences relating to marriage, defamation and offences mentioned is Sections 195 and 197 of Cr. P.C. A complaint in a criminal case is what a plaint is in a civil case.

Police report is expressly excluded from the definition of complaint but the Explanation Section 2(d) of the Code makes it clear that such report shall be deemed to be a complaint where after investigation, it discloses commission of a non-cognizable offence.

Question 10: Explain the requisites of a ‘warrant of arrest’. What is the time limit within which the police officer should bring the person arrested before the court.
Answer:

The requisites of a ‘warrant of arrest’

A written order issued by a judicial officer or other authorized person commanding a law enforcement officer to perform some act for the administration of justice, warrants are recognized in many different forms and for a variety of purposes in the law.

Most commonly, police use warrants as the basis to arrest a suspect and to conduct a search of property for evidence of a crime. Warrants are also used to bring those persons to court that have ignored a summons or a court appearance.

‘Warrant cases’ are those punishable with an imprisonment of more than two years or with a life sentence or a death sentence. Chapter XIX of the Code of Criminal Procedure, 1973, covers the trial of warrant cases.

A person arrested is to be taken before Magistrate or officer in charge of police station within twenty four hours. A person arrested cannot be detained more than twenty-four hours.

Under Section 151 of the Code of Criminal Procedure, 1973, if a police officer comes to know of a person’s intention to commit a cognizable offence, he can arrest such a person or party without a warrant or of order issued by the Magistrate.

However, it has to appear from the state things that no other action is possible in the situation to prevent the offence from happening. Such a person needs to be presented before the Magistrate in twenty-four hours or less time.

For a warrant to be valid, it has to have the following features:

• in writing.
• bearing the name and designation of the person required to execute it;
• must give full name and description of the person to be arrested;
• the offence charged;
• signed by the presiding officer; and
• sealed,

Moreover, such a warrant is only for production of a person before the concerned Court and not before the police officer.

Section 76 of the Act specifies that the police officer or any other person executing the warrant of arrest is to (subject to the provisions of Section 71 as to security) produce the arrested before Court without unnecessary delay, and which shall, in no case whatsoever, exceed 24 hours.

This time is exclusive of the journey time, from the place of arrest to the Magistrate’s Court. [Section 70 – Criminal Procedure Code, 1973].

Question 11: Discuss the power to issue order is urgent cases of nuisance or apprehended danger under section 144 of the Criminal Procedure Code, 1973.
Answer:

The power to issue order is urgent cases of nuisance or apprehended danger under section 144 of the Criminal Procedure Code, 1973

Under Section 144 of the Code of Criminal Procedure, 1973, where the Executive, District or the Sub-Divisional Magistrate is of the view that immediate prevention or speedy remedy is necessary to prevent, obstruction, annoyance or injury to any person, or where there appears to be a danger to human life, health or safety, or a possibility of public tranquility being disturbed, or a riot, or a scuffle braking out, he may pass an urgent order. This order can either stop any person from doing something that is disallowed under this act, or cause any foreseeable harm to be avoided.

Question 12: The Parliament passed many laws in the interest of public safety and social welfare. It imposes absolute liability in Criminal Law.
Answer:

Strict liability or absolute liability:

This liability arises when some harm takes place without any intention or negligence on the part of the defendant, even then he is liable for it. This can happen in any of the following cases –

• Unavoidable accidents
• Unavoidable mistake                    [Rylands v. Fletcher]

Where a statute imposes a definite liability, the presence of absence of a guilty mind is irrelevant. Many laws passed in the interest of public safety and social welfare imposes absolute liability, particularly in matters of a criminal nature. E.g.

Matters concerning socio-economic welfare, public health, food, drugs, etc. Further examples would be the licensing of shops, hotels, restaurants and chemists establishments, cases under the Motor Vehicles Act and the Arms Act etc.

Liability in tort which in course of time has become known as ‘strict liability’, ‘absolute liability’, ‘fault liability’ have all gradually grown and with passage of time have become firmly entrenched.

‘Absolute liability’ or “special use bringing with it increased dangers to others” (Rylands v. Fletcher’) and ‘fault liability’ are different forms which give rise to action in torts.

Question 13: Explain the procedure given in Criminal Procedure Code, 1973 for publication of proclamation regarding absconding persons.
Answer:

Proclamation and Attachment

Where a warrant remains unexecuted, the Code provides for two remedies issuing a proclamation under Section 82, or the attachment and sale of property under Section 83, of the Code of Criminal Procedure, 1973.

If a Court believes that a person against whom a warrant has been issued by it has the intention of absconding or is concealing himself to defeat the execution of the warrant against him, the Court is free to publish a written proclamation.

Such a proclamation makes it binding on the person to appear at a specified place and at a specified time not less than 30 days from the date of publication of such proclamation. (Section 82).

However, while issuing proclamation, the Magistrate must place on record that the accused has absconded or is concealing himself. The point to be acknowledged here is that the object of attaching the property of the accused is not to punish him but to compel his appearance.

Section 83 provides that if the person is suspected to be is about to dispose of the whole or any part of his property, or to remove it outside of the jurisdiction of the concerned court, it may, in addition to the proclamation, order the attachment of said property. Such property can be ordered to be attached or a receiver appointed for it.

The modes of publication of the proclamation could be any of the as following:

• •  publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
  • affixed to a conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
  • affixation of its copy in a conspicuous part of the Courthouse;
• the Court may also order a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides, if the Court deems it essential.

General Laws Practical Questions

Question 1: Sohan is tried summarily by the Metropolitan Magistrate on the charge of committing theft and is sentenced to undergo imprisonment for a period of six months. Can Sohan challenge this decision? If so, on what grounds?
Answer:

Sohan can challenge the decision of the court. A ‘summary trial’ is a fast-track procedure that provides for speedy trial of cases. Under Section 260 of the Code of Criminal Procedure, 1973, any Magistrate of First Class or a Metropolitan Magistrate or a Chief Judicial Magistrate can hear cases of offences not punishable with death, life imprisonment or even imprisonment of more than two years in a summary trial.

Included would be offences like petty theft (where the value of the stolen property does not exceed rupees two hundred), assisting in such theft or in keeping its proceeds hidden, acquiring or keeping such stolen property, trespass, breaking into a house, insulting someone with the intention of provoking him to a violent act, and helping anyone in the performance of these crimes.

Section 261 covers the conduct of a summary trial by a Magistrate of second class.

Section 262 provides the procedure involved in a summary trial. These cases are also known as summons cases, since they do not normally make use of warrants. Moreover, the maximum punishment that can be pronounced in such cases is of imprisonment upto three months.

Question 2: Shyam, a police officer comes to know from reliable sources that four persons are staying in a house and planning to kidnap and murder Rajan. They are equipped with automatic weapons. The police officer apprehends that they will commit the crime at any moment. He directly goes to that house and, without any warrant or order from the Metropolitan Magistrate, arrests all the four persons along with weapons in their possession. Is the arrest of all the four persons valid? Decide with reasons.
Answer:

Section 151 of the Code of Criminal Procedure, 1973 says that an arrest made by a police officer to prevent cognizable offences is valid. Such an act oes not require any orders from the Magistrate or any warrants. Such powers have been provided to prevent the happening of serious or cognizable offences.

General Laws Descriptive Questions

Question.1: What are the prerequisites of a criminal complaint?
Answer:

The prerequisites of a criminal complaint

‘Complaint’ can be defined to mean any allegation made orally or in writing to a Magistrate, so that he can take required action under this Code. The allegation should relate to the fact that some person – known or unknown – has committed an offence. Complaint does not include a police report. [Section 2(d)]

However, if a police officer discovers after investigation that a non-cognizable offence has been committed, the report made by the police officer in this case shall be deemed to be a complaint, and the police officer making the report shall be seen as a complainant.

Generally a complaint into an offence can be filed by any person except in cases of offences relating to marriage, defamation and offences mentioned under Sections 195 and 197, which are of a more personal nature.

Hence, “A complaint in a criminal case is what a plaint is in a civil case.”

The requisites of a complaint are as follows –

• There should be an oral or written allegation.
• An offence has been committed by a known or unknown perpetrator.
• The allegation has been made to a magistrate.
• The conveyance of the allegation carries with it the intention that action should be taken on the complaint.

Format of a complaint

There is no specified format of a complaint. An application or a petition to a Magistrate containing an allegation that an offence has been committed and an appeal that the wrongdoer be suitably punished is a complaint (Mohd. Yousuf v. Afaq Jahan).

Question.2: When can a search warrant be issued?
Answer:

Search warrant

Section 93 of the Act says that a search warrant can be issued only in the following cases: When it is feared by the court that the person against whom a summons has been issued to produce a document or an article may not produce it.

When the court is unsure whether the said article or document is in the possession of the person against wi.om the summons have been issued. When the case warrants a general inspection.

If it is for searching a document, parcel or other thing in the custody of the postal or telegraph authority, it can only be issued by a District Magistrate or Chief Judicial Magistrate. Such a warrant cannot also go against Sections 123 and 124 of the Indian Evidence Act, 1872 or the Bankers’ Book Evidence Act, 1891.

Section 97 says that any District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class who has reasons to believe that any person is confined under such circumstances that the confinement amounts to an offence, may issue a search warrant for the search of the person so restrained.

When found, such a person shall be immediately produced before the Magistrate for making such orders as the circumstances of the case merit.