AN INTRODUCTION TO THE STUDY OF LAW IN INDIA
Copyright 2017 Nayab Naseer
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TABLE OF CONTENTS
PART I: SOVREIGNITY AND RULE OF LAW
Sovereignty is the supreme power of the state over all individuals and associations within its own territorial limits.
Sovereignty = the right to demand obedience. Derived from the Latin word “superannus” meaning supreme,
Sovereignty is a chief attribute of a state. A sovereign state:
1. Is not subordinate to any other state or entity (freedom from foreign control)
2. Has supreme control over its territories
3. Is the final authority to make laws and take political decisions in its realm
4. Has power to punish offenders and renegades
1. Nominal and Real Sovereignty: absolute power wielded by kings. Parliament or council of ministers, if it exists, were powerless eg; France before French revolution (1789), England before Glorious Revolution (1688)
2. Legal Sovereignty: authority which has the legal power to issue final commands, eg: English parliament, Thailand’s ruling junta. Bryce: “legal sovereignty lies in that authority, be it a person or a body, whose expressed will shall bind others, and whose will is not liable to be overruled by the expressed will of anyone placed above him or it.”
3. Political Sovereignty: The force or entity that confers legal sovereignty: eg: People who elect MPs. Professor R.N. Gilchrist, “Political sovereign manifests itself by voting, by the press, by speeches, and in many other ways not easy to describe or define. It is, however, not organized and it can become effective only when organized. Legal sovereigns cannot go against the will of the political sovereign.
4. Popular Sovereignty: power of masses. Eg: power of majority of electorate (democracy)
5. De Facto (actual) and De Jure (legal) Sovereignty: De facto sovereign is people who can make their or their will prevail whether with the law or against the law, and the person to whom obedience is actually paid. De Jure sovereign is the figurehead. Eg: Edapaddy Palaniswamy is de jure sovereign and Sasikala / Mannargudi mafia is the de facto sovereign. Napoleon Bonaparte was de facto sovereign, not de jure sovereign. Mussolini was de facto sovereign, Italian Parliament was de jure sovereign.
Concept of sovereignty as we know it today was unknown in ancient and medieval times.
MACHIVELLI (1469-1527, Italy):
State is absolute and an end in itself, and cannot have any restraints on its powers. State is not subordinate to church or natural laws.
JEAN BODIN (1530-96, France):
First expounded the concept of sovereignty.
THOMAS HOBBES (1588-1679, England):
Sovereign is absolute and not bound by anything. Powers of sovereign extends overall matters of state, including religion.
JAMES BENTHAM (1709-1794, England):
Advocated absolute power for sovereign, on grounds of hedonism. The sovereign should make laws in conformity with principal of utility.
JOHN AUSTIN (1790-1859, England):
1. A Sovereign does not obey any political superior, and commands habitual obedience from a bulk of his/her subjects.
2. Members of the society are dependent on the superior sovereign
3. Sovereignty is unlimited
4. Sovereign is undividable.
5. Society without a sovereign cannot be called a state
Eg is British Parliament, which can make or unmake any law, and whose only limits are physical limits.
Implications of Austin’s Theory
1. Command is the essence of sovereignty. The character of the state is immaterial. The state many act unwisely and dishonestly.
2. Sovereign issues laws and punishes those who disobey such laws
3. There is no limit on the exercise of its power. However, sovereign may have de facto limitations, such as:
(i) Coercive force which the sovereign has under his commandments
(ii) The docile disposition of its people
Criticisms against Austin’s theory
1. It ignores popular sovereignty and public opinion
2. Law is not the command of the sovereign – common law, customs etc are all valid and legitimate sources of laws
3. Sovereignty is dividable. Sovereignty does not reside with a determinate person in the federation:
4. Force is not the only sanction behind laws
5. This theory is out of sync with practical reality. No state, even in Europe, has sovereignty according to Austin’s theory.
In parliamentary democracy, parliament is the legal sovereign and people are political sovereign. So concept that sovereignty is undividable is wrong. Eg: Under Sn 53 of Constitution of India, executive power is with President, legislative power is with parliament, and houses of state, and there is judiciary as well.
No sovereign, anywhere, anytime held unlimited power, and attempts to do so always resulted in establishment of safeguards and overthrow of such sovereign. Even Hitler, Pot-Pal, etc did not wield unlimited power, and neither does the English Parliament.
Only a despot with a disturbed brain fits Austin’s description of sovereignty. Even despots such as Maharaja Ranjit Singh did not issue commands that opposed customs, usage, and religious beliefs of people
State as a whole is not almighty
Sovereignty is limited from both within and without. Laws can only regulate only external actions of human beings. It cannot regulate internal actions.
JOHN SALMOND (1862-1924):
1 A sovereign authority is essential in every political society
2. The sovereign authority has uncontrollable power in his/her sphere of influence. But the power of sovereign may be limited by
a. extent of his physical force
b. the docility of his subjects – eg: Jallikettu protest force sovereign to issue ordinance,
c. checks and balance of the constitution : eg Indian judiciary, limited powers of US Congress
3. The sovereign many not necessarily be found within the confines of the State itself (eg: Arab states accepting the Ottoman caliph as their sovereign, India accepting the British Queen as the sovereign). Such states however may be dependent or semi-sovereign states; In US, ultimate sovereignty is vested not in Congress but in a majority of three-fourths of the slate legislatures which can ratify amendment to constitution proposed by a two-thirds majority of the Congress.)
Difference between Austin’s and Salmond’s Theories on Sovreignity
According to Austin unlimited supremacy in all matters, including religion, but according to Salmond, supremacy need not necessarily be unlimited
Austin says sovereignty is unlimited de jure., but Salmond says it may be limited only de facto. Sovereignty may be limited even de jure, eg: two houses of parliament dividing sovereign powers among themselves
Austin holds sovereignty as undividable, and Salmond holds Sovereignty as dividable when it extends beyond the sovereigns own sphere (eg: provincial warlords owing allegiance to the Taliban)
HENRY MAINE (1822-1888, England)
Sovereignty does not reside in determinable human superior. Rather
1. Moral, ethical and other factors perpetually limits power of sovereign
2. No sovereign can afford to ignore customs, usage and religious beliefs
KM MUNSHI (1955, India):
Sovereignty has two aspects
1. External: in relation with other statesman
2. Internal: In relation to its own citizens
The idea that sovereignty is individable is untrue.
Treaties, conventions and international laws limit sovereignty of sovereign republics eg: UN charters,
Expounded by Karl Marx in The German Ideology (1846) and also The Communist Manifesto
State reflects the dominance of one class over other classes – Powers of the state are exercised to protect interest of the class which has instruments of production in its hands (eg: crony capitalism)
The proletariat struggle against the oppressor-sovereign – State shall wither away when classes are abolished
The opposite of Sovereignty is ANARCHY – the idea that the world lacks any supreme authority or sovereign. In an anarchic state, there is no hierarchically superior, coercive power that can resolve disputes, enforce law, or order the system of international politics.
Concentration of powers leads to authoritarianism, as power corrupts and absolute power corrupts absolutely. The theory of separation of powers was expounded by Lord Montesquieu, who built on the concept originally expounded by Aristotle. Other political thinkers such as Jean Bodin and Lohn Locke also expounded on the subject. John Locke argued that the executive and legislative powers should be separate for the sake of liberty. Liberty suffers when the same human being makes the law and executes them.
There are two major branches of Separation of Powers
The “Water Tight model” of separation of powers advocates three branches of government, free in their own sphere.
The check and balance model aims to maintain balance of power among different branches of government.
Judicial Review is procedure by which a court review an administrative action by a public body and secure a declaration, order, or award. A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority. For instance, an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a written constitution.
Judicial review is one of the checks and balances in the separation of powers.
“Rule of law” is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of the sovereign. The concept brings everyone under the same set of laws, and is the opposite to the concept of “divine right of kings,” autocracy, dictatorship, and oligarchy where the rulers are above the law.
The Oxford English Dictionary: “Rule of Law is the authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior. It is the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”
The Secretary-General of the United Nations: “A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”
KC Davis (1969) gives seven principle meanings for rule of law
1. Maintenance of law and order
2. Fixed rules
3. Elimination of discretionary powers
4. Due process of law of fairness
5. Natural law (principles of natural justice)
6. Preference for judges and ordinary courts of law to executive authorities and administrative tribunals
7. Judicial review of administrative actions
Rule of law implies:
1. SUPREMACY OF LAW: laid down laws apply rather than discretionary power or arbitrariness
2. EQUALITY BEFORE LAW: Every citizen is subject to the same law, including lawmakers themselves.
3. ACCOUNTABILITY: State committed to enforce the law
4. FAIRNESS OF APPLICATION: Following due process of law
5. LEGAL CERTANITY: definite and codified asset of laws, and not whimsical edicts
6. TRANSPARENCY: Procedural and legal transparency in application of law –law, including the prohibitions and exigencies, must be publicly declared
7. INFLEXIBILITY: Rule of law is sometimes at odds with flexibility, even when flexibility may be preferable. Eg: punishment for mob violence lynching to death of rapist
The World Justice Project lists out the following conditions essential for rule of law.
• Promulgation of clear, fair and stable laws that protect fundamental rights, including security of persons and property,
• Accountability of government and its officials and agents under the law
• Fair, efficient, and accessible process of enacting laws
• Access to justice through competent, independent, and ethical adjudicators, attorneys or representatives – adequate number of judicial officers, with adequate resources
1959 Delhi Declaration of International Commission of Jurists accepted the idea of “rule of law” as a modern form of law of nature.
Rule of Law v Rule of Man: A society in which government officers have a great deal of discretion has a low degree of “rule of law”, and a society in which government officers have little discretion has a high degree of “rule of law”.
Rule OF Law vs Rule BY Law: With rule OF law, the law is preeminent and offers a check against abuse of power. Under rule BY law, the law is a mere tool for a government, used to keep populace under oppression.
A school of though argues rule of law has been diluted to allow for the exercise of discretion by administrators.
Where there is room for discretion, there is room for arbitrariness.
Judicial discretion or interpretation of law can pose a danger to rule of law. According to journalist Harish Khare, “The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges.”
Administrative tribunals that adjudicate according to special laws applied to special groups, subverting both comon law and procedure of common courts are a direct challenge to Dicey’s first principle of rule of law.
Formalist or “thin” approach: No judgments on whether the law is “just” or not – concerned with procedural aspects or legal framework that ensures rule of law.
Substantive or “thick” approach: Goes beyond formalist definition, to seek substantive rights or “just” laws along with a strong procedural framework. Some jurists require rule of law to protect individual rights.
1.ARISTOTLE: The concept of “rule of law” was first popularized by Aristotle, who said “It is more proper that law should govern than any one of the citizens… if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws”
2.CICERO: Cicero, the Roman statesman said “We are all servants of the laws in order that we may be free.” During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Only the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.
3.ALFRED THE GREAT: Alfred the Great’s “Doom Book” (893 CE) was an attempt to codify law, based on biblical Mosaic law and Christian commandments. He ruled that justice had to be equal between people, whether rich or poor, friends or enemies. This was inspired from Leviticus 19: “You shall do no injustice in judgment! You shall not be partial to the poor; nor defer to the great! But you are to judge your neighbour fairly!”
4.MAGNA CARTA: (1215). The barons of England, under leadership of Archbishop Stephen Langton forced King John and future sovereigns and magistrates under the rule of law, preserving ancient liberties by Magna Carta in return for exacting taxes.
5.RUTHERFORD: Earliest mention in modern times was by Samuel Rutherford, a 16th century Scottish theologian, who used the phrase “rule of law” in his argument against the “divine right of kings.” His work “Lex, Rex” (1644) means “the law is king”, and subverts the traditional formulation “rex lex” meaning “the king is law.”
6.BILL OF RIGHTS (1689): The English Parliament passed the Bill of Rights on December 16, 1689, which created separation of powers, limited the powers of the king and queen, laid the foundation of democratic election and bolstered freedom of speech
The 19th century British jurist A V Dicey said “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”
Dicey’s Three Principles on ‘Rule of Law’.
1.Supremacy of Law: Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary power – English men are ruled by the Rule of Law and law alone. – A man can be punished by rule of law, and by nothing else.
2.Equality before Law: All people are subject equally to the one and same law – French system of Droit Administratif (special courts to deal with cases of Government and its servants ) goes against the spirit of rule of law.
3.Predominance of Legal Spirit – courts are guarantors of the liberty – in England rights (such as right to personal liberty, freedom from arrest etc.) are the result of judicial decisions – the Constitution is a consequence (and not the source) of the rights of the individuals.
Mere incorporation in a written constitution is of no use in the absence of effective remedies of protection and enforcement.
Dicey’s thesis became a yard stick to test administrative actions, and contributed to the growth of administrative law in a big way.
Criticism of Dicey
1. Dicey does not give recognition to discretion powers. Even during his time, there was a long list of statutes which permitted the exercise of discretionary powers of the Crown which could not be called to the Court.
2. He fails to distinguish between ‘arbitrary powers’ to ‘discretionary powers’.
3. He also misunderstood the real nature of droit administratif which was successful in France.
US FOUNDING FATHERS:
In 1776, Thomas Paine wrote “law is king.” In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish “a government of laws and not of men.”
All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.
In India, Constitution is supreme – all arms of the state (executive, legislature and judiciary) are subordinate to it.
If executive or legislature abuses power vested with it, or if action is malafide, courts of law can quash such actions.
Any law inconsistent to provision of the constitution can be declared ultra vires (beyond one’s legal power or authority) by the SC
The president is required to take oath to preserve, protect, and defend the constitution
The concept “King can do no wrong” does not apply in India. Government and public authorities do not have immunity. They are subject to jurisdiction of ordinary courts and tried and punished similarly like everyone else
In England, public servants can be dismissed by the crown at pleasure
Wilkes v Wood (1763, UK): action for damage for trespass was maintainable even if trespass was committed in pursuance of order of a minister
Chief Settlement Commissioner, Punjab v Om Prakash (1968): authority of law courts to test to test all administrative action by the standard of legality. Administrative or executive action that does not pass the test of legality shall be set aside if the aggrieved party beings appropriate action in the competent court.
ADM Jabalpur v Shivakant Shukla (1975) (Habeus Corpus Case): When emergency was declared, the seven freedoms listed under article 19 of constitution stood suspended. Large number of people were arrested under MISA, with many not even informed of the grounds of their detention. Govt contended that right under art 19 came from Art 21, which remained suspended. The SC in a 4-1 judgment agreed with the govt. By endorsing arbitrariness, it left a big blot to the concept of rule of law in India.
There are many factors and sources that have contributed to the development of law.
1. Customs: Ancient customs are conventions are often the original sources of law. Most ancient law codes, such as Hammurabi and Justinan’s code are heavily influenced by customs of the times.
2. Canon law: Religious edicts and doctrines from sacred texts were a primary source of law in ancient and even medieval world.
3. Precedents: Precedent is the accumulated principles of law derived from centuries of decisions. Judgements passed by judges in important cases are recorded and become significant source of law. Historical and judicial precedents are important sources of law, especially in common law countries such as England.
4. Parliamentary Conventions: Long standing parliamentary conventions govern relationships, such as that between the House of Lords and the House of Commons; between the monarch and Parliament; and between Britain and its colonies.
5. Books of Authority: Certain “books of authority” heavily influence lawmakers. Before 20th century, English judges were heavily influenced by Blackstone’s compilation on English cases. Contemporary Islamic law is heavily influenced by hadeeth works such as Sahi Bukhari.
6. Legislation: Legislation, or a declaration of a set of legal rules by a competent authority, is the primary source of law. A parliamentary legislature frames new laws, such as Acts of Parliament, and amends or repeals old laws. Most legislatures have their powers restricted by the nation’s Constitution. The legislature may delegate law-making powers to lower bodies. Eg
a. Bar Council is empowered to make laws related to legal studies
b. State govt empowering university senate to frame rules and regulations
7. International Laws: Nation states have sovereignty over their territories, but they may still be bound by some international laws. Eg:
a. Member-states of UNO being bound to co-opt United National Conventions into their laws – Geneva Convention against torture of prisoners, rules regarding prisoners of war, etc.
b. European nations that join the EU adopt all EC Law. Member States become subject to “Brussels” and are bound to precedent decisions of the European Court of Justice in Luxembourg.
8.International Treaties: International Conventions and Treaties signed by government and ratified become binding on states. Eg: The Council of Europe’s European Convention on Human Rights is enforced by the ECHR in Strasbourg, applicable to all EU nations
Custom is a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or time.
Customs acquire the force of law when they became the undisputed rule by which certain rights, entitlements, and obligations are regulated between members of a community.
Customary law is a recognized source of law within jurisdictions of the civil law tradition, where it may be subordinate to both statutes and regulations.
In the canon law of the Catholic Church, custom is a source of law, but it requires the express or implied consent of the legislator for a custom to obtain the force of law.
In the Common Law of England, “Long usage” must be established. It is a broad principle of property law that, if something has gone on for a long time without objection, whether it be using a right of way or occupying land to which one has no title, the law will eventually recognise the fact and give the person doing it the legal right to continue.
In many third world countries, customary law co-exist alongside common or civil law. In Ethiopia, despite the adoption of legal codes based on civil law in the 1950s, more than 60 systems of customary law are still in force, some of them operating quite independently of the formal state legal system.
Many countries give custom the strength of law. In India many customs are accepted by law. For example, Hindu marriage ceremonies are recognized by the Hindu Marriage Act. President of Kyrgyzstan Askar Akaev revitalized the aqsaqal courts of village elders in 1995, giving these customary courts jurisdiction over property, torts and family law.
The Somali people in the Horn of Africa follow a customary law system referred to as Xeer, which offer security in life, liberty and property in large parts of Somalia where there is no functional government.
Black’s Law Dictionary defines “precedent” as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.”
Precedent is a principle or rule established in a previous legal case that is either binding on, or persuasive for a court, when deciding subsequent cases with similar issues or facts.
Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes. The principle by which judges are bound to precedents is known as stare decisis or judicial precedents. Under the doctrine of stare decisis, a lower court must honour findings of law made by a higher court that is within the appeals path of cases the court hears. Case laws are the set of decisions cited as precedent.
Elements needed for a precedent to work.
*Clear cut hierarchy of the courts
*Efficient and accepted system of law reporting
In civil law countries, the judges take case law into account, but are not obliged to do so and are required to consider the precedent in terms of principle. The decisions may be persuasive but are not binding. Under the English legal system, judges are bound by a decision reached in a previous case. This is the doctrine of binding precedent. Precedent that must be applied or followed is known as binding precedent. Lower courts are bound by the precedent set by higher courts within their region.
Persuasive precedent is precedent or other legal writing that is not binding precedent but which is nevertheless useful or relevant, and that may guide the judge in making the decision in a current case. Persuasive precedent includes
A “case of first impression”, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through its adoption by a higher court.
“Super stare decisis”
“Super stare decisis” is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place.
A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law. On July 26, 1966, Lord Gardiner made a landmark “Practice Statement” in the House of Lords that they would depart from precedent in the Lords in order to achieve justice.
Legal rights are powers available to an individual or a legal entity in realization or defense of its just and lawful claims or interests against “the whole world”’ Legal rights affect every citizen, whether or not the existence such rights is publicly known.
Legal rights associates with natural rights. The declaration of Independence of the United States lists life, liberty, and the pursuit of happiness as natural rights. Such rights are not dependent on the laws or customs of any particular culture or government, and therefore universal and inalienable. In contrast, legal rights derive from some statue or legislation. For instance, the Constitution of India grants fundamental rights. But the right to property, earlier a fundamental right under Article 31, is now a legal right.
English common law emerged from the changing and centralizing powers of the king during the Middle Ages. After the Norman Conquest in 1066, medieval kings began to consolidate power and establish new institutions of royal authority and justice. New forms of legal action established by the crown functioned through a system of writs, or royal orders, each of which provided a specific remedy for a specific wrong. The system of writs became so highly formalized that the laws the courts could apply based on this system often were too rigid to adequately achieve justice. In these cases, a further appeal to justice would have to be made directly to the king. This difficulty gave birth to a new kind of court, the court of equity, also known as the court of Chancery because it was the court of the king’s chancellor. Courts of equity were authorized to apply principles of equity based on many sources (such as Roman law and natural law) rather than to apply only the common law, to achieve a just outcome.
Courts of law and courts of equity thus functioned separately until the writs system was abolished in the mid-nineteenth century.
An example is the writ of habeas corpus, which protects the individual from unlawful detention. Originally an order from the king obtained by a prisoner or on his behalf, a writ of habeas corpus summoned the prisoner to court to determine whether he was being detained under lawful authority. Habeas corpus developed during the same period that produced the 1215 Magna Carta, or Great Charter, which declared certain individual liberties, one of the most famous being that a freeman could not be imprisoned or punished without the judgment of his peers under the law of the land—thus establishing the right to a jury trial.
William Blackstone’s (1723-1780) Commentaries on the Laws of England was the first systematic and analytic thesis on English common law. Blackstone’s work now functions as the definitive source for common law precedents.
PART II THE CONSTITUTION OF INDIA
Preamble = Latin word meaning “to go before.”
The Preamble to the Constitution of India states the objective of the Constitution.
It declares the Republic of India as a Sovereign, Socialist, Secular, Democratic Republic.
It also declares as the aim of the republic to secure for its citizens justice, liberty, equality and fraternity.
The Preamble lays down the underlying tone and spirit of the constitution, and as such is invoked for interpreting the provisions of the constitution.
In the Berubari Union case (1960), SC laid down the following principles with regards to the Preamble:
1. The Preamble is the key to open the mind of the makers of the Constitution
2. It shows the general purpose for which several provisions of the constitution was made
3. It is not a part of the Constitution
4. It is not a source for sustentative powers
5. It is not a limitation upon granted powers
6. Preamble may be used to lend clarity to any ambiguity in the articles
7. Since Preamble is not part of the constitution, it cannot be amended.
In the landmark Kesavananda Bharati v State of Kerala (1973), SC held the preamble is the basic structure of the constitution, which cannot be altered. This is a reversal of its earlier stance that preamble was not part of the constitution. The basic principles of the Constitution, ie. Its democratic character cannot be altered through amendments.
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 the laws within the territory of India.
“Equality before law” means no one is above the law of the land. It means the law does not discriminate on the basis of birth, position, gender or other personal attributes. Privileged, underprivileged, unprivileged are all equal before law.
“Equal protection of law” means that law provides equal opportunities to all those who are in similar circumstances or situations. But because all persons are not, by nature, attainment or circumstances in the same positions; article 14 provides that state can treat different persons in differently if circumstances justify such treatment. The Doctrine of Reasonable classification holds protective discrimination is also a facet of equality.
Fundamental Rights are individual rights are enforced against the arbitrary invasion by the state. Some fundamental rights can be enforced against private individuals also.
Part-III of the Indian constitution (Articles 12 to 32) list out the Fundamental Rights.
According to Article 12, ‘the state’ includes the
•Government and Parliament of India.
•Government and Legislature of States.
•All local or state authorities such as municipalities, panchayats, district boards, improvement trusts, etc within the territory of India or under the control of Government of India.
All these entities are responsible for ensuring fundamental rights of citizens. C
Fundamental Rights are not absolute rights, and Parliament can place reasonable restrictions, on grounds of maintenance of general public order, security of state, upliftment of SCs, STs, OBCs, women and children; maintaining public decency and mortality, to maintain friendly relations with foreign states, and so on.
Right to Property (Article 31) was removed from the list of the Fundamental Rights by the 44th Constitution Amendment Act, 1978, and made a legal right (as per Article 300-A, Part-12) instead.
Classification of Fundamental rights
Freedom of Press refers to the right to publish newspapers, magazines, and other printed matter without governmental restriction and subject only to the laws of libel, obscenity, sedition, or other restrictions.
The Constitution of India does not explicitly mention Freedom of the Press. However, freedom of press is covered in the Right to Freedom of Speech and Expression (Article 19.) Citizens of India are guaranteed the right of freedom of speech and expression. Every Indian, including press reporters, can express their and other’s ideas and views freely through press and public platform.
The status of freedom of the press is the same as that of an ordinary citizen. The press cannot claim any immunity from taxation, is subject to the same laws regulating industrial relations, and press employees are subject to the same laws regulating industrial employment.
At the same time, no law can be passed to abridge its freedom of expression, and press cannot be subjected to excessive or prohibitive burdens, such as specific tax, to curtail its circulation
Restrictions / Censorship
The restrictions mentioned in Article 19 are
-Contempt of court
-Decency or morality
-Security of the state
-Friendly relations with other states
-Incitement to an offence, public order
-Maintenance of the sovereignty and integrity of India.
These restrictions apply both to common individuals and the press.
The censorship of the Press is a very crucial and sensitive issue in every democracy. In general press censorship is regarded as very unhealthy check on the freedom of free expression of views. In India, the constitution does not specifically forbid press censorship.
In 1976, during the emergency, the Parliament enacted the Prevention of Publication of Objectionable Matter Act. The Janata Government in 1978 repealed the Act. However, the 44th amendment adopted in 1978 has given the Parliament substantial powers to regulate press freedom.
In Brij Bhusan vs. the State of Delhi, and in Ramesh Thapar vs. State of Madras, SC held censorship imposes obvious restrictions on freedom of speech and expression. Censorship is permitted if it is reasonable and if it is called for in the interest of public order.
Politicians in power often feel very tempted to pass laws restricting press freedom, to withhold information likely to generate unfavorable reactions among the people, but in the age of social media, censorship is increasingly becoming irrelevant..
The Directive Principles of State Policy are directions listed in part IV of the Constitution, as guidelines to the state, to be kept in mind while framing laws and policies.
The objective of DPSP are
- to ensure social, economic and political justice
- guide the establishment of an economic and social democracy, as proposed by the Preamble of the Constitution.
DPSP are non-enforceable and non-justifiable.
Article 37 of the Constitution declares Directive Principles to be “fundamental to the governance of the country” and imposes an obligation on the State to apply them in matters of legislation. However, it also states these principles are not enforceable in any court of law.
The concept of Directive Principles of State Policy was borrowed from the Irish constitution, the Declaration of Rights of Man by Revolutionary France, and the Declaration of Independence by the American Colonies.
Directive principles of state policy lay down the objective of the Indian state. It is the Directive Principles which breathes soul into the Constitution, differentiating between a ‘Welfare State’ and ‘Police State’, and making India the former.
They provisions in DPSP promote the welfare of citizens. Clauses offering free legal aid to the economically disabled, ensure fair wages, raising nutrition levels, education, and more prevents exploitation of the weak and oppressed.
DPSP promote the cause of village panchayats, organising animal husbandry, protection of the environment and more. Such clauses set the spirit of Indian Republic as being based on “grassroots oriented” and “people centric” development, as opposed to a crony capitalistic development model.
The clauses relating to Uniform Civil Code aims to promote national integration and strengthen the nation-state.
The clauses relating to separating judiciary from executive strengthens democracy and prevents subversion of the state through personality cults and authoritarianism.
Overall, the DPSP aims to establish social and economic democracy promised in the Preamble, and establish a welfare state. These provisions confirm the Republic of India does not subscribe to either of the extremes of capitalism or anarchism.
The Fundamental Rights (Part-III), together with Directive Principles of State Policy (Part IV) are together called cornerstone of the constitution, and is described as the Magna Carta of India.
Fundamental Rights are superior to Directive principles. In Champakam Dorairajan v State of Madras (1952): SC held Article 37 expressly says that the directive principles are not enforceable by court. SC also said chapter on Fundamental rights in the constitution is sacrosanct and DPSP have to conform to and run subsidiary to it.
The SC, after the judgement in the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other’s role in aiming at the same goal
The 42nd amendment of constitution, 1976, added Fundamental Duties. These clauses were based on the recommendations of the Swaran Singh Committee constituted by the government earlier that year.
There were originally ten fundamental duties:
1.To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
2.To cherish and follow the noble ideals which inspired our national struggle for freedom;
3.To uphold and protect the sovereignty, unity and integrity of India;
4.To defend the country and render national service when called upon to do so;
5.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;
6.To value and preserve the rich heritage of our composite culture;
7.To protect and improve the natural environment including forests, lakes, rivers, wildlife and to have compassion for living creatures;
8.To develop the scientific temper, humanism and the spirit of inquiry and reform;
9.To safeguard public property and to abjure violence;
10.To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement;
The 86th Amendment in 2002 added a eleventh fundamental duty:
11. Every parent or guardian to ensure their child or ward was provided opportunities for education between the ages of six and fourteen years.
India is one of the most diverse nations in terms of religion, being the birthplace of four major world religions: Hinduism, Jainism, Buddhism and Sikhism. Besides Christianity and Islam came to India soon after it was established. India is home to the second largest Muslim population in the world. The core ethos of India has been a fundamental unity, tolerance and even synthesis of religion.
Every citizen of India has full freedom of religion, with a right to practice and promote their religion peacefully.
Freedom of religion is a fundamental right guaranteed by the Constitution of India.
Article 25 (1) allows every citizen to freely follow his own religion, subject to public order, morality and health.
Besides the right to practice the religion of choice at an individual level, religious groups or denominations are given the rights to:
•establish and maintain institutions for religions and charitable purposes
•manage its own affairs in matters of religion;
•own and acquire movable and immovable property, and
•administer such property in accordance with law. (Article 26).
Article 29 give religious and linguistic minorities right to establish and manage educational institutions of their own. Article 29 also forbids discrimination on grounds of race, religion, caste, language, in admission to educational institutions run by the state or receiving aids from the state.
Article 30 gives minorities the right to establish and administer educational institutions of their choice, and prevent the from discriminating against educational institutions established and managed by the minorities, in matters of granting aids.
However, the state educational authorities have the right to regulate such educational institutions because the “right to manage does not include the right to mismanage.”
On educational institutions, the position of the state is as follows:
•State cannot impose any tax to promote a religion or to maintain religious institution,
•Religious instructions cannot be imparted in educational institution run by state funds
•In educational institutions recognized by the state and receiving aid from the government, religious instructions cannot be compulsorily given to an unwilling student.
•In educational institutions run by religious establishments, religious instructions can be given only to students willing to receive it.
•Religious instructions can be given to the minors only with the express consent of their guardians.
The freedom of religion guaranteed under the Constitution of India is not confined to its citizens but also to all persons including alien. In Ratilal Panchand V. state of Bombay (1954), SC established this fact, allowing foreign Christian missionaries to propagate their faith among the adherents of other religious.
However, while every individual is free to profess, practice or propagate a religion of his choice; conversion secured through force, fraud or allurement is certainly unwelcome.
The Preamble to the Indian constitution was amended in 1976 to the effect India is a secular state.
The Supreme Court defines Secularism in Indra V. Rajnarayan (1975): “Secularism means the state shall have no religion of its own and all persons of the country shall be equally entitled to the freedom of their conscience and have the right freely to profess, practice and have the right freely to profess, practice and propagate any religion”.
Secularism as contemplated by the Constitution of India has the following distinguishing features:
•India has no state religion,
•The state will not identify itself with or be controlled by any religion;
•While the state guarantees to everyone the right to profess whatever religion one chooses to follow, it will not accord any preferential treatment to any of them.
•No discrimination will be shown by the state against any person on account of his religion or faith.
•The right of every citizen, subject to any general condition, to enter any offices under the state
The state does not discriminate between religions. Article 15 and 16 prohibits discrimination in public employment on grounds of religion. No one can be subjected to any social, economic or political discrimination simply on grounds of religion.
Article 29 of the Indian constitution assures that the state shall not impose on a minority community any culture other than its own.
Secularism extends not just to religion, but also to caste. The constitution makes it mandatory for Hindu religious institutions of a public character to be thrown open to every Hindu. Caste system or untouchability cannot be practised in the case of entry into public Hindu temples, as per Section 17 of Constitution.
In Bal Patil and Anr. v. union of India, the SC ruled the State has no religion and State has to treat all religions and religious people equally and with equal respect without in any manner interfering with their Individual rights of religion, faith and worship.
In Gopala Krishnan Nair v State of Kerala (2005), SC opined “Secularism in Indian constitution does not mean constitution of an atheist society, but merely means equal status for all religions, without reference in favour of discrimination against any one of them.
In common law, a writ is an informal written order issued by a body with administrative or judicial jurisdiction. The early writs were simply written orders made by the king to a specified person, to undertake a specified action. For example, the king making a military summons to one of his tenants-in-chief, to appear dressed for battle with retinue, at a certain place and time. In United Kingdom and Canada, elections are still held by means of a writ. Writ of election is a written order issued on behalf of the monarch to local officials to hold a general election.
In modern usage, writs are issued by courts. Article 32 of the Indian Constitution empowers the Supreme Court and the High Courts to issue writs for enforcement of any of the fundamental rights.
The Constitution of India specifies five types of writs.
Part 18, Articles 352 to 360 of the Constitution of India lays down the provisions of emergency. Under these articles, the President of India has the power to impose emergency rule in any or all the Indian states.
The Constitution stipulates three types of emergencies:
1.National Emergency, due to war, external aggression or armed rebellion (Article 352).
2. Emergency due to failure of constitutional machinery in a state (Article 356), popularly known as “President’s Rule.”
3.Financial Emergency, due to a threat to the financial stability or credit of India (Article 360).
Initially, national emergency had to be applied to the whole of the country. The 42nd Amendment Act of 1976 enabled the president to limit the operation of a National Emergency to a specified part of India.
The 44th Amendment Act of 1978
1.Substituted the words ‘armed rebellion’ for ‘internal disturbance,’
2.Restricted the President to proclaim a national emergency only after receiving a written recommendation from the cabinet.
3.Deleted the provision that declaration of national emergency was immune from judicial review.
4.Reduced the time for the Parliament to approve the emergency from two months to one month.
5.Imposed restrictions on ability of state to suspend fundamental rights as per Articled 358 and 359
6.Set a time frame for the emergency. If approved by both the Houses of Parliament, the emergency continues for six months, and can be extended to an indefinite period with an approval of the Parliament for every six months. Before that, the emergency, once approved by the Parliament, could remain in operation as long as the Executive (cabinet) desired.
With these amendments, it is no longer possible to declare a National Emergency on the ground of ‘internal disturbance’ as was done in 1975 by Indira Gandhi.
In the Minerva Mills case, (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts.
A proclamation of emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval. The President is bound to revoke a proclamation if the Lok Sabha passes a resolution disapproving its continuation.
1.Centre becomes all-supreme: In normal times, the Centre can give executive directions to a state only on certain specified matters. However, during a national emergency, the parliament is empowered to make laws on any subject mentioned in the State List, and the centre may give executive directions to a state on ‘any’ matter. Thus, the state governments are brought under the complete control of the Centre, even if they are not suspended. The laws made by Parliament on the state subjects during a National Emergency become inoperative six months after the emergency has ceased to operate.
2.Life of legislatures and assemblies may be extended: While a National Emergency is in operation, the life of the Lok Sabha may be extended beyond its normal term (five years) by the Parliament. The extension may be for one year at a time, for any length of time. Such extension cannot continue beyond six months after the emergency has ceased to operate. The Parliament may extend the normal tenure of a state legislative assembly in a similar way.
3.Suspension of fundamental rights: As per Article 358 of Constitution, the six Fundamental Rights under Article 19 are automatically suspended on proclamation of National Emergency. When the National Emergency ceases to operate, Article 19 automatically revives and any made during Emergency, which is inconsistent with Article 19, ceases to have effect.
4.Article 359 authorises the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. The suspension of enforcement relates only to the Fundamental Rights specified in the Presidential Order.
Article 355 imposes a duty on the Centre to ensure the government of every state is carried on in accordance with the provisions of the Constitution. If there is failure of constitutional machinery in a state, the centre takes over the administration of the state, as per Article 356.
This is popularly known as ‘President’s Rule’. It is also known as ‘State Emergency’ or ‘Constitutional Emergency’.
A proclamation imposing President’s Rule must be approved by both the Houses of Parliament within two months from the date of its issue. If approved by both the Houses of Parliament, the President’s Rule continues for six months. It can be extended for a maximum period of three years with the approval of the Parliament every six months.
The 44th Amendment Act of 1978 restrained the power of Parliament to extend a proclamation of President’s Rule beyond one year. Thus President’s Rule can be extended by six months at a time only when
1. National Emergency is in operation in the whole of India, or in the whole or any part of the state; and
2.the Election Commission certifies general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.
A proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.
When the President’s Rule is imposed in a state
-The President dismisses the state council of ministers headed by the chief minister.
-The state legislature is either dissolved or kept in suspended animation
-The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of the state and/or advisors appointed by the President.
-The Parliament may delegate the power to make laws for the state to the President or to any other authority specified by him,
Since 1950, the President’s Rule has been imposed on more than 100 occasions. On many-a-occasions, President’s Rule has been imposed in an arbitrary manner for political or personal reasons. Hence, Article 356 has become one of the most controversial and most criticised provision of the Constitution.
In the landmark Bommai case (1994), the SC laying down the following propositions for imposition of President’s Rule in a state under Article 356:
1.The presidential proclamation imposing President’s Rule is subject to judicial review.
2.The satisfaction of the President must be based on relevant material. The action of the president can be struck down by the court if it is based on irrelevant or extraneous grounds or if it was found to be malafide or perverse.
3.Burden lies on the Centre to prove that relevant material exist to justify the imposition of the President’s Rule.
4.The court cannot go into the correctness of the material or its adequacy but it can see whether it is relevant to the action.
5.If the court holds the presidential proclamation to be unconstitutional and invalid, it has power to restore the dismissed state government and revive the state legislative assembly if it was suspended or dissolved.
6.The state legislative assembly should be dissolved only after the Parliament has approved the presidential proclamation. Until such approval is given, the president can only suspend the assembly. In case the Parliament fails to approve the proclamation, the assembly would get reactivated.
7.Secularism is one of the ‘basic features’ of the Constitution. Hence, a state government pursuing anti-secular politics is liable to action under Article 356.
8.The question of the state government losing the confidence of the legislative assembly should be decided on the floor of the House and until that is done the ministry should not be unseated.
9.Where a new political party assumes power at the Centre, it will not have the authority to dismiss ministries formed by other parties in the states.
10.The power under Article 356 is an exceptional power and should be used only occasionally to meet the requirements of special situations.
The court did not uphold the validity of the imposition of the President’s Rule in Nagaland (1988), Karnataka (1989), Meghalaya (1991), and most recently Uttarkhand (2016).
Why has India chosen cabinet form of government?
The Constitution of India provides for a Parliamentary form of government, following the British model of government. The type of government that functioned in India before 1947 was also very much similar to the British model of parliamentary government.
Another reason for India adopting parliamentary form of government is India’s diversity. With the nation deeply divided into several groups, often with conflicting interests, a parliamentary democracy provides reasonable freedom to all groups, and prevents an autocrat emerging to impose his/her will on others. The delay in decision making is a price to pay.
Before independence, the functions of the head of the State in India were performed by the Governor-General, who represented the Crown. The Constituent Assembly considered three models:
1.the American Presidential system,
2.the Swiss elected executive
3.British cabinet government
The Constituent assembly finally settled on an Advanced Presidential model unconsciously, where the President is the execute head of the state, and the commander of the armed forces. All laws are promulgated by the President. However, the President has to act on the advise of the cabinet, headed by the Prime Minister.
Article 74(1) of our Constitution provides “there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President in the exercise of his functions.”
One of the major flashpoints between the President and Prime Minister in India was when President Rajendra Prasad withheld assent to the Hindu Code Bill. The Attorney General advised Prime Minister Jawaharlal Nehru that “by Article 74(1) the President is required to Act in all matters with the aid and advice of his Council of Ministers.” The first President of India shook his head and grumbled (as he gave in) saying: “this is not the way we framed the Constitution.” Later, during the Internal Emergency of June 1975, the language of Article 74(1) was altered and made even more absolute. The Constitution 42nd Amendment Act, 1976 provided that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.” Thus the president is for all practical purposes rubber-stamp now.
In the post emergency period, the Parliament inserted a proviso to Article 74(1) which read, “provided that the President may require the Council of Ministers to reconsider such advice,” but the President is still bound to act in accordance with the advice tendered after such reconsideration.
In Shamsher Singh v. State of Punjab, SC held the Governor and President are only the formal heads of the state, and when they require satisfaction as required by the Constitution, it is not their personal satisfaction but the satisfaction of the Council of Ministers on whose aid and advice they exercise powers and functions. Thus, the judiciary has consistently held that, the President in practice has no powers at all.
Appointing the Prime Minister
The powers of the President are merely ceremonial, except when the Prime-minister loses his majority in the house, or is unable to prove majority, when he has discretionary power to appoint a new Prime Minister. In Dinesh Chandra v. Choudhari Charan Singh, SC held Art.75(2) empowered the President to dismiss any minister at any time, at his will. The SC reiterated this in S.P. Anandv. H.D. DeveGowda.
In contrast, the President can only be impeached when he acts unconstitutionally. The Procedure requires two-third majorities of both houses of total membership of Parliament
The President also has the power to return a bill unsigned once, for reconsideration. If the Parliament sends back the bill with or without changes, the President has to sign it. There is no time-limit, so the President may withhold assent indefinitely. (“Pocket Veto”.) The Maharastra beef ban bill as caught up in such as Pocket Veto for almost 15 years. Former President A. P. J. Abdul Kalam sent back a controversial bill regarding enlarging the scope of the offices of profit, which disqualified a person from being a member of parliament.
American has a presidential form of government, where the President is all-powerful. All executive powers are vested in the President. He is free to appoint the secretaries of different departments. However, there is still separation of power between the executive, legislature and judiciary, with checks and balances. The President has no power to dissolve the legislature. The legislature can pass, with two-third majority, a bill rejected by the President. The President has also no ordinance making powers.
In England, the executive head of state is the hereditary crown. The Crown has the function to look after the enforcement of all national laws, has supreme command of the armed forces, and conducts the foreign affairs of the country, but its powers are now only ceremonial.
PART III: THE ADMINISTRATION OF JUSTICE
Gray’s definition: “ The process by which a judge (or any person) constructs from words of a statute book, a meaning which he either believes to be that of the legislature, or which he proposes to attribute to it, is called ‘interpretation’”
The conventional way of interpreting a statute is to seek the intention of its makers, and apply that to the facts of the case at hand.
An interpretation of the statutory provision which defeats the intent and purpose for which the statute was enacted should be avoided.
Interpretation is of two kinds – grammatical and logical.
•Grammatical interpretation is application to a statute of the laws of speech. It is arrived at by referencing the words used in the statute to the laws of speech.
•Logical interpretation considers the intention of the legislature, by taking into account circumstances connected with the enactment of the statue. It calls for the comparison of the statute with other statutes and with the whole system of law, and also for the consideration of the time and circumstances in which the statute was passed.
Based on these types, there are three fundamental rules suggested in the English Cases:
•Literal Rule: The literal rule that, if the meaning of section is plain, it is to be applied whatever the result.
•Golden Rule: The words should be given their ordinary sense unless that would lead to some absurdity or inconsistency with the rest of the instrument. When the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences. If the meaning of the words is at variance with the intention of the legislature to be collected from the statute itself and leads to some absurdity or repugnance, then the language may be varied or modified so as to avoid such inconvenience, absurdity or repugnance and no further.
In Jugal Kishore Saraf v. Raw Cotton Co. Ltd, SC held that the cardinal rule of construction of statutes is to read the statutes literally, by giving to the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the court may adopt the same. But when no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation.
•Mischief Rule: The general policy of the enactment and the evil at which it was directed. In Newspapers Ltd. v. State Industrial Tribunal, the SC held “to get true import of the statute, it is necessary to view the enactment in retrospect, the reasons for enacting it, the evils it was to end and the object it was to subserve. The Act has therefore to be viewed as a whole and its intention determined by construing all the construing parts of the Act together and not by taking detached section as to take one word here and another there.”
If the language of the statue is capable of more than one interpretation, the construction which reduces the legislation to futility or the narrower one which would fail to achieve the manifest purpose of the legislation should be avoided. The bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result, should be adopted.
R. v. Sweden considered section 1(1) of the poor Prisoners’ Defense Act, 1930: “Any person committed for trial for an indictable offence shall be entitled to free legal aid in the preparation and conduct of his defense at the trial and to have solicitor and counsel assigned to him for that purpose.” The Court of Criminal appeal held that this section gave the right to an accused person once the certificate is granted, to have a solicitor assigned for the purposes mentioned, but not a right that that solicitor or another should defend him at the trial. The court observed: “if the section properly construed, gave an accused person a right to have a solicitor at the trial, it would mean that he could repeatedly refuse to have the solicitor assigned when he got advice which he did not like and go to others, and there would be no means whatever to prevent that, with the result that there might be added expense to the country, delays and abuse of the whole procedure.” Such an unreasonable intention of Parliament cannot be imputed.
In Uttar Pradesh Bhoodan Yagna Samiti v. Brij Kishore, SC held the expression “landless person” used in section 14 of U.P. Bhoodan Yagna Act, 1953 which made provision for grant of land to landless persons, was limited to “landless laborers”. A landless labour is he who is engaged in agriculture but having no agricultural land. The Court further said that “any landless person” did not include a landless businessman residing in a city. The object of the Act was to implement the Bhoodan movement, which aimed at distribution of land to landless labourers who were verged in agriculture. A businessman, though landless cannot claim the benefit of the Act.
In Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax, U P., Sales Tax was fixed at two per cent, of the turnover in the case of “cooked food” under section 3A of the U.P. Sales Tax Act, 1948. The appellant firm engaged in the business of biscuit manufacture and sale. Case was whether biscuits though intended for human consumption, can be construed as “cooked food” and liable to be taxed as per the notification issued under the said provision. Held that if an expression is capable of a wider meaning, the question whether the wider or narrower meaning should be accepted depends on the context of the statute. Here biscuit was not covered within the words ‘cooked food’. However, where the precise words used are plain and unambiguous the court is bound to construe them in their ordinary sense and not to limit plain words in an Act of Parliament by consideration of policy which has to decided not by court but by Parliament itself.
Supreme Court of India is the highest level of court of Indian juridical system.
It was established as per Part V, Chapter IV of the Constitution of India, aimed to be the guardian of the constitution of India and the highest level of court in the status of appeal cases.
The SC consists of Chief Justice of India and twenty other Judges.
The judges of Supreme Court are appointed by the President of India. The panel of probable judges is selected by the Chief Justice of Supreme Court through collegiums, with the approval of the Central Government.
The qualifications and the conditions to become a SC judge:
•Citizen of India
•Experience of serving as the Judge of High Court for at least five years, or should be advocate of High Court for at least ten years, or should be considered by the President as a distinctive jurist.
Jurisdiction of Supreme Court
SC accepts appeals of cases heard in the High courts. It also has original jurisdiction in some cases:
The Supreme Court exercises original exclusive jurisdiction
-to hear the cases of disputes between the Central Government and the State Governments
-disputes between different states
Supreme court exercises original non-exclusive jurisdiction to
-Hear writs to enforce Fundamental Rights
The Supreme Court has jurisdiction to hear appeal against the judgment of all High Courts of India, provided the respective High Court grants the certificate related to the query about the interpretation of the Constitution of India.
-In case of any civil dispute, HC issues a certificate if it feels the intervention of SC is required to resolve substantial query of law
-In case of any criminal dispute, HC issues certificate if it thinks the case is to be heard by the Supreme Court. It is the discretionary power of the Supreme Court to hear any criminal case without the certificate of High Court
-Supreme Court has extra ordinary jurisdiction to hear any appeal related to any matter for which any court or tribunal had decided with judgment through the option of special leave petition except the case of tribunal related to Armed Forces.
-Supreme Court has the power to withdraw or transfer any case from any High Court, and also review any verdict ordered.
The Supreme Court has the option to report its opinion to the President about any questions raised of public importance referred by the President.
The law of Supreme Court is put the binding on all courts across India.
High Courts are second courts of importance in India. These courts are established based on Article 214 Part IV Chapter V of the Indian Constitution. There are 24 high courts in India, of which Calcutta HC is the oldest.
These courts are mainly confined to the jurisdiction of state, group of states or Union Territory.
High Courts are governed by the bindings conferred by the Supreme Court of India as far as judgments and orders are concerned. In turn, they are empowered to govern the jurisdiction of lower courts like family, civil and criminal courts.
Powers/Jurisdiction of High Court
-HC has power to hear appeals raised in the cases of lower courts
-HC has original jurisdiction to hear writ petitions as conferred in Article 226 of the Constitution
-HC exercise jurisdiction related to civil or criminal domain if the lower courts are incapable of exercising their power.
-Some specific areas, such as cases related to Company Law, come to HC directly.
The appointment of the judges of High Courts is by the President of India with the consultation of the Chief Justice of India, the Chief Justice of High Court and the Governor of the state or union territory.
Chapter VI of Part VI of the Indian Constitution has made provisions for subordinate courts.
The structuring of subordinate courts is left to the state governments or the union territories. The state takes into consideration factors such as the number of cases, distribution of population, etc. Generally there are sessions courts to try criminal cases, and district courts, family courts, and sub courts to deal with civil cases.
Rule 9 of CrPC obliges state govt to establish a sessions court, to try criminal cases, in every sessions district.
Sessions judge have original jurisdiction to try criminal cases
Sessions court has the power to impose the full range of penalties for criminal acts, including death penalty.
District court have power to try civil cases and hear appeals from sub-courts.
District Courts come under the administrative power of the High Court under which the district is covered. The judgments of the district courts are subject to review to the appellate jurisdiction of the respective high court.
Judges to district courts are appointed by the governor in consultation with the state government and the High Court. The District Court is headed by a District Judge, and there may be additional district judges, with equal power. A district judge he must be an advocate for minimum seven years.
There are in total 351 district courts in operation in India.
Subordinate courts subordinate courts covering civil cases are known as Junior Civil Judge Court, Principal Junior and Senior Civil Judge Court. In Kerala, sub courts are established as per provisions of Kerala Courts Act 1957, and can hear cases of any monetary value.
The status of Principal Judge of family court is at par with the District Judge
Established as per provisions of Kerala Courts Act 1957, these courts have original jurisdiction to try cases up to 10 Lakh rupees.
The village courts, known as Lok Adalat or Nyaya Panchyat dispense justice to the villagers of India. This is a system for resolving disputes in micro level. These courts are assigned to judge the petty cases related to civil and criminal offence which can generate the penalty of up to 2 years imprisonment.
However, there is only 151 Gram Nyaylayas functional in India, way below the targeted figures of 5000 mobile courts. Financial constraints and reluctance by the lawyers, respective government officials and police are the major stumbling blocks towards establishment of Nyaya Panchayaths.
The word ‘magistrate’ is derived from Middle English ‘magistrat,’ which means “civil officer in charge of administrating laws.”
The CrPC lists four categories of magistrates in India.
1. Chief Judicial Magistrate (including additional CJMs):
- Is the senior of all magistrates in the district including the DM
- control all magistrate courts under his/her jurisdiction
- empowered to sentence a person upto 7 years and impose fine upto Rs.30000.
2. Sub-divisional Judicial Magistrate:
- empowered to sentence a person up to 7 years and impose fine of up to Rs 25,000.
- Normally have original jurisdiction over dowry and other criminal cases.
3. First-Class Judicial Magistrate
- Can sentence a person to jail for up to 5 years and impose a fine of up to Rs 15,000.
4. Second-class Judicial Magistrate
- Can sentence a person to jail for max one year and impose fine up to Rs 5000/-
- Kerala has only first class judicial magistrates. Second class judicial magistrates were abolished
5. Chief Metropolitan Magistrates (for metropolitan areas – not applicable to Kerala)
- Can sentence a person to jail for up to 7 years and impose any amount as fine
5. Executive Magistrates (aka District Collector):
-Officer of the executive branch as opposed to the judicial branch.
-Invested with specific powers under both CrPC & IPC.
-Cannot try any accused or pass any verdicts.
Each revenue district (as opposed to a Sessions District) has the following Executive Magistrates:
-One District Magistrate (DM)
-Two or more Additional District Magistrates (ADM)
-Sub divisional District Magistrates (SDM), under the control of DM
-Executive Magistrates, under the control of DM
A jury trial, or trial by jury, is a legal proceeding in which a group of ordinary citizens makes a decision or findings of fact, and by such findings, direct the actions of a judge. Juries are seen as protectors of the accused against harsh criminal laws.
Jury trials are common for criminal trials in civil law systems, but only USA makes extensive use of jury in civil cases also. Some civil law jurisdictions have arbitration panels where non-legally trained members decide cases in select subject-matter areas relevant to the arbitration panel members’ areas of expertise.
The first case decided by an English jury was in 1665, when one Mrs Ascentia Dawes was charged with the murder of her slave, an Indian girl. A jury of six Englishmen and six Portuguese, found her guilty, but she was acquitted because of the ‘meniality’ of the crime. Jury trials gradually became a biased institution, often ruling in the favour of British, ignoring extreme violence and exploitation of Indians.
In India, the jury system was prevalent to try criminal cases, but following the controversy that surrounded Kawas Manekshaw Nanavati case in 1959, the jury system was abolished. Nanavati, a Naval Commander, killed his wife’s lover Prem Ahuja. Accused under section 302, Nanavati was declared not guilty by the sessions court under a jury trial. The verdict was challenged and dismissed by the Bombay High Court and the case was re-tried as a bench trial. When the matter reached the Supreme Court, Nanavati was convicted and was given a life imprisonment, which was later commuted by the Governor.
Advantages of trial by jury
-There is certainty in the process
-Since difference heads are involved, there is greater likelihood of all aspects being considered instead of case being influenced by subjective bias of the judge
-Jury verdicts are often popular
Disadvantages of jury system
-It is easy for crafty plaintiff or defendants to manipulate the system
-Juries are inexperienced in law and often deliver wrong verdicts. Many juries do not understand the burden of proof
-Usually no retrial is allowed if a defendant is acquitted
An offence is a violation of a penal law. Generally, act which cause harm to others, violates others right, or is dangerous to society at large, are offensive acts.
Section 2(n) of CrPC defines “Offence” as any act or omission punishable by any law for the time being in force. Thus an act is not offence unless clearly defined as an offence by any legislature.
Some of the acts that defines offence in India are
•Indian Penal Code
•Wildlife Protection Act
•Prevention of Corruption Act
•Narcotic Drugs and Psychotropic Substances Act
•Environmental Protection Act
Cognisable offence are offences where a police officer has the authority to make an arrest without a warrant, and to an investigation with or without the permission of a court. A non-cognisable offence is one where police officer does not have the authority to make an arrest without a warrant and an investigation cannot be initiated without a court order.
The First Schedule of CrPC lists out bailable offences. Several other laws also list out offences which are bailable. The definition of CrPC does not list severity of offence.
First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence (eg crimes such as rape, murder, theft). It is generally lodged by the victim of a cognizable offense or by someone on his or her behalf, but anyone can make such a report either orally or in writing to the police. Anyone who knows about the commission of a cognizable offence, including police officers, can file an FIR.
The FIR sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police take up investigation of the case.
On 12 November 2013, the Supreme Court of India said it was mandatory for the police to register a First Information Report for all complaints in which a cognisable offence has been discovered.
Section 154 in the Code of Criminal Procedure, 1973 of India lists the procedure for filing a FIR:
1.When information about the commission of a cognizable offence is given orally, the police must write it down.
2.The substance of the FIR shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
3.The person giving information or making a complaint has a right to demand that the information recorded by the police be read to him or her.
4.Once the information has been recorded by the police, it must be signed by the person giving the information.
5.A copy of the information as recorded shall be given forthwith, free of cost, to the informant.
A person who is in custody, charged with an offence, or involved in pending criminal proceedings, may apply to be released on bail.
CrPC does not define bail. But essentially, bail is an agreement where a person makes a written undertaking to the court.
Normally, in signing a bail agreement, a person undertakes
•to be present every time the matter is in court, until the proceedings are finished,
•to comply with any conditions set out in the agreement while on Bail
•to forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement.
It is a violation of a person’s fundamental right to restrict the person’s liberty without any just cause.
The purpose of arrest and detention of a person is primarily to make sure that the person appears before the court at the time of trial, and to ensure he/she is available to serve the sentence, if found guilty. If there is reasonable evidence the person charged with an offence can be made available for the above mentioned purposes without keeping him imprisoned, bail may be granted.
Section 50(2) of CrPC imposes an obligation on the police officer making the arrest to notify the detained person about his right to get bail, if he is detained on a bailable offence.
Two authorities that may grant bail are the police and the courts.
A person may be required to provide a security, or be let off on his own bond.
Moti Ram vs State of MP (1978), SC held that Bail covers both release on one’s own bond with or without surety.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1) of CrPC specifically provides that the amount of bail cannot be unreasonably high.
Sn 436 of CrPC mandates that an indigent person, unable to provide any bail amount, must be released. If a person is unable to provide bail amount for a week, he is considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the offence.
Granting bail in non-bailable offence is at the discretion of the court.
The Supreme Court lists out the considerations to give bail for non-bailable offences in Narsimhulu case (1978)
1.the nature of the crime
2.the nature of the charge, the evidence, and possible punishment
3.the possibility of interference with justice
4.the antecedents of the applicant
5.furtherance of the interest of justice
6.the intermediate acquittal of the accused
8.prospective misconduct of the accused
9.the period already spent in prison
10.protective and curative conditions on which bail might be granted.
In addition to the above considerations, bail may be denied if:
1.Person has violated the conditions of the bail-bond earlier
2.If there is reasonable grounds to believe the person has been guilty of an offence punishable with death or imprisonment for life
3.If offence is a cognizable offence and the person has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.
4.Persons accused of Dowry Death
If trial of person arrested on non-bailable offence is not concluded within 60 days, and person has been in custody during the whole period, he may be released on bail, unless there is a good reason to keep him in custody.
In general, there is no right of appeal against the decision of refusing the bail, for non-bailable offences. However, a person can file for Special Leave Petition to High Court or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to special courts.
Hussainara Khaton vs Home Secretary, 1980: Thousands of people were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6 months to an year, as they were unable to pay bond money for bail, and courts were too backlogged to hear their cases. J Bhagwati observed that the courts must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties.
Cancellation of bail is at the discretionary powers of the court
Only the court that has given the bail can cancel it. It requires special power of High Court (under Sn 439) to cancel a bail given by a police officer.
In Surendra Singh vs State of Bihar (1990), SC lists out grounds on which bail may be cancelled:
1.When accused is found tampering with the evidence either during investigation or during he trial
2.when the accused on bail commits similar offence or any heinous offence during the period of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4.when the offence so committed by the accused had caused serious law and order problem in the society
5.if the high court finds that the lower court has exercised its power in granting bail wrongly
6.if the court finds that the accused has misused the privileges of bail
7.when the life of accused itself is in danger
When a person apprehends case instigated because of personal vendetta or political motivation, he may apply to Court of Session or the High Court under Section 438 for a direction that he be released on bail upon his arrest. This provision is commonly known as Anticipatory Bail.
The person has to explain the circumstances he believes he might be arrested, with reasonable evidence. Mere hunch or fear is not enough. The direction under this section can be given only upon a specific offence. A generic direction or a blanket order to be released whenever the applicant is arrested and on whatever offence is not allowed.
In granting such a direction the court takes into account the following considerations -
1.The nature and gravity of the accusation.
2.The antecedents on the applicant including the fact as to whether he has previously been imprisoned upon a conviction by a court in respect of a cognizable offence.
3.The possibility of the accused to flee from justice
4.whether the accusation has been made with the object of injuring or humiliating the applicant by having him arrested.
Although, there is no specific provision that prohibits granting anticipatory bail, there are certain
situations where such bail is normally not granted. These are -
1.In case of dowry death or wife harassment.
2.In case of economic offences
3.In case of atrocious crimes
Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must seek remedy under Section 437.
Some high courts have held that the grounds mentioned in Section 437 for denying regular bail are applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a punishment of death or life imprisonment will not be given anticipatory bail.
An arrest is the act of seizing a person(s) by legal authority and taking them into custody. It is an important tool to bring an accused before the court, prevent a person suspected of doing a crime escape from the clutches of the law, or prevent a crime.
An arrest occurs when police officers take a suspect into custody, against the suspect’s will, to interrogate or prosecute him/her. It often involves a physical application of force, or submission to an officer’s show of force.
An arrest is complete as soon as the suspect is no longer free to walk away from the arresting police officer, a moment that often comes well before the suspect actually arrives at a jail.
Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will not amount to arrest.
Police officer may use necessary physical force to arrest a person who forcibly resists the endeavor to arrest him, or attempts to evade the arrest. Arrested person must not be subjected to more restraint than is necessary to prevent him from escaping, and there is no grounds to cause his/her death.
Arrest of women is forbidden after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer, and with prior permission from the concerned Judicial Magistrate of First class.(Sn 46(4) of CrPC)
In Kultej Singh vs Circle Inspector of Police (1992): Keeping a person in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.
The third report of National Police Commission, referring to the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2%
of the expenditure of the jails.
Arrest deprives people of their liberty. As such, it cannot be applied at the whims and fancies of police officers.
The U.S. Constitution’s Fourth Amendment authorizes an arrest only if the police have probable cause to believe that a crime was committed and that the suspect did it. It prevents the type of random roundup of “undesirables” that sometimes occur many non-democratic and quasi-democratic countries.
Legislatures and courts in most countries of the world have developed rules about how, when, and why people can be arrested.
In India, as per Sn 41 [Chapter 5] of CrPC (1973) any police officer may arrest a person without a warrant from a magistrate, when the person is cornered on the following grounds:
1.Committing or reasonably suspected of having committed any cognizable offence
2.Possession of any implement of house-breaking (without any lawful excuse)
3.Proclaimed offenders (by order of State Government)
4.Possession of stolen property, with reasonable suspicion of having committed the offense themselves
5.Obstruction of a police officer while in the execution of his duty
6.Escape or attempt to escape from lawful custody
7.Deserter from army or any forces of the Union
8.Committing or suspected of committing an offence outside India, if the act committed counts as offence in India.
9.Released convict breaching rules applicable to him as per CrPC Sn 356 (5.)
10.Another police officer makes a written or oral request to arrest a person, as long as offence is specified
Sn 151 of CrPC empowers any police officer to arrest anyone who is likely to commit a cognizable offense, and such offence cannot be prevented without arrest.
Sn 42 of CrPC allows a police officer to arrest a person for a non-cognizable offence, if he refuses to give his name and residence. If name and address cannot be ascertained, or person does not execute bond, within 24 hours of arrest, he/she may be presented before magistrate.
Joginder Kumar vs State of UP (1994): SC held no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest, and not mere allegations. Constitutional rights of a person mandate that he not be arrested on simple suspicion of complicity in an offence. Arrest cannot be made without a reasonable satisfaction reached after some investigation is made as to the genuineness of the complaint.
State vs Bhera, (1997): SC held “reasonable suspicion” and “creditable information” must relate to definite averments which must be considered by the Police Officer himself before he arrests the person.
Arrested persons have several rights.
1.Right to know the grounds of arrest: Police officer shall communicate full particulars of offence for which arrest is made as per Sn 50(0) and Sn 75 oft CrPC, and also Art 22(1) of constitution.
Udaybhan Shuki vs State of UP (1999). All. HC held that right to be notified of grounds of arrest is a precious right of the arrested person, as it allows him to move the proper court for bail, make a writ petition for habeas corpus, or make appropriate arrangements for his defence.
Harikishan vs State of Maharashtra (1962): grounds of arrest must be communicated to the person in the language that he/she understands otherwise
2.Right to be informed of the provision for bail: When a person is arrested for reasons other than a non-bailable offence without warrant, police officer should inform the person he/she is entitled to be released on bail, and allow him/her to arrange sureties. (Sn 50(2) of CrPC.)
3.Right to be taken to magistrate without delay. Art 22(2) of Constitution and Sn 57 / 76 of CrPC stipulates arrested person must be produced before a magistrate within 24 hours of arrest.
Sharifbai vs Abdul Razak (1961): SC held that if a police officer fails to produce an arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful detention.
4.Right to consult Legal Practitioner: Art 22 (1) of constitution and Sn 303 of CrPC gives arrested person the right to consult with a legal practitioner whom he trusts, and be defended by such legal practitioners. The arrested person may contact and appoint a such a legal practitioner.
5.Right to free legal aid: Person who does not have means to hire a legal practitioner is entitled to pleader for his defense at the expense of the State (Art 21of constitution and Sn 304 of CrPC)
Suk Das vs UT of Arunachal Pradesh (1986): Non-compliance of giving free legal aid or failure to inform the accused of this right would vitiate the trial entailing setting aside of the conviction and sentence.
6.Right to be examined by a medical practitioner – Sn 53 of CrPC allows a police officer to get the accused examined by a registered medical practitioner. Sn 54(1) gives the accused a right to get himself or herself examined by a registered medical practitioner.
7.Right to inform a relative, friend, or other person of his arrest, and where he is being held: Section 50 A (1) of CrPC provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s choice, about his arrest. He must also tell the place where the arrested person has been kept.
In Joginder Kumar vs State of UP (1994), the SC established the following rights of those under arrest:
•The Police Officer shall inform the arrested person when he is brought to the police station of this right.
•An entry shall be required to be made in the Diary as to who was informed of the arrest.
The above guidelines cum requirements were not exhaustive and were in addition to the rights of an arrested person under various Police Manuals.
Upon production of the arrested person before him, the Magistrate has to satisfy himself that the requirements have been complied with.
Cr P C contemplates two types of arrests
-Arrest made for the execution of a warrant issued by a magistrate
-Arrest made without any warrant but in accordance with some legal provision that permits arrest.
Arrests may also be classified based on the person(s) executing the arrest.
When any offence is committed in the presence of a Magistrate, within his/her local jurisdiction, he/she may arrest or order any person to arrest the offender him/herself. (Sn 44 of CrPC), Unlike citizen arrest, a magistrate can arrest on the ground of any offence and not only on cognizable offence. In such cases, the arrested person must be produced before another magistrate within 24 hours, otherwise his detention will be illegal
People questioned by police officers are not under arrest unless the officers indicate that they are not free to leave.
Mere detention on a temporary basis, for a short duration of time, is arrest on temporary basis. Such temporary arrest does not become part of a person’s arrest record.
Eg: a driver stopped for a routine traffic violation is technically under arrest because the driver is not free to leave until the officer has written a ticket.
Private persons or lay individuals are empowered to arrest a person for protection of peace in certain situations.
Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or is a proclaimed offender. (Sn 43(1) of CrPC).
Such arrested persons shall be handed over to a police officer or taken in custody to the nearest police station without any delay.
Conditions for private arrest
•Person making arrest should be under a bona fide impression that a non-bailable and cognizable office is being committed in his presence.
•Arrest for mere suspicion is not allowed
•Person making the arrest should hand him/her over to the police station at earliest possible opportunity, or will be guilty of wrongful confinement.
A summons is a legal document issued by a court or by an administrative agency of government for various purposes.
A judicial summons is served on a person involved in a legal proceeding. The legal action may be in progress against the person, or the person’s presence as witness may be required.
The summons announces a date by which the person or persons summoned must either appear in court, or respond in writing to the court or the opposing party or parties.
The summons is the descendant of the writ of the common law. It replaces the former procedure in common-law countries by which the plaintiff actually had to ask the sheriff to arrest the defendant in order for the court to obtain personal jurisdiction in both criminal and civil actions.
•Citation: A citation, traffic violation ticket, or notice to appear is a type of summons prepared and served at the scene of the occurrence by a law enforcement official, compelling the appearance of a defendant before the local magistrate within a certain period of time to answer for a minor traffic infraction, misdemeanor, or other summary offence. Failure to appear within the allotted period of time is a separate crime of failure to appear.
•Civil summons: A civil summons is most often accompanied by a complaint.
•Administrative summons: One example of an administrative summons is the summons issued by Income Tax to taxpayers to appear before them at the time and place named in the summons. The person summoned may be required to produce books, papers, records, or other data.
The summons may be enforced by a court order, and the law provides criminal penalty for failure to obey the summons
Pleading, in legal terms, is asking a court to grant relief. It is the formal presentation of claims and defenses by parties to a lawsuit, in the proper form.
Different systems of pleading have been organized generally, to serve four functions:
1.to give notice of the claim or defense
2.to reveal the facts of the case
3.to formulate the issues that have to be resolved
4.to screen the flow of cases into a particular court.
In ancient England, the parties simply presented themselves to a tribunal and explained their dispute. Later, in middle ages, the royal courts began more and more to demand written pleadings that set out a party’s position in a case. Such a shift resulted in more formality and more rigid technical requirements. A claim or defense that did not exactly fit the requirements of the common-law Forms of Action was thrown out with no opportunity to amend it and come back into court. Thus arouse the practice of dismissing cases on technical grounds.
The common pre-trial pleadings include:
1.Plaint or complaint, which sets out the plaintiff’s version of the facts and specifying the damages. It frames the issues of the case.
2.Answer, which is a statement by the defendant explaining why the plaintiff should not prevail. It may also offer additional facts, or plead an excuse.
3.Reply. Any party in the case may have to file a reply, which is an answer to new allegations raised in pleadings.
4.Counterclaim. The defendant may file a counterclaim, which asserts that the plaintiff has injured the defendant in some way, and should pay damages.
Importance of Plaint and Written statements in filing suits before civil courts
Plaint is written statement of plaintiff’s claim. Through the plaint, the plaintiff seeks remedy from court for his grievances. The plaint describes his grievance, the cause of action leading to the grievance, and other and other necessary particulars related to the case
As per Order 7 Rule 1 of CrPC, the followings are the necessary contents of plaint;
1.The name of that court in which suit is brought.
2.The name, description and residence of plaintiff.
3.The name, description and residence of defendant.
4.When plaintiff or defendant is minor or person of unsound mind, plaint should contain a statement to that effect.
5.Facts that constituted the cause of action, including when the cause of action has arisen.
6.Relief which the plaintiff claims.
7.Facts, which show the court has jurisdiction.
8.When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should contain that amount, which has been so allowed or so relinquished.
9.Statement of value of subject-matter of suit not only for purpose of jurisdiction, but also for purpose of court-fees.
10.Plaintiff’s verification on oath.
The plaint plays important role throughout whole trial of any civil suit, as no plaintiff can go beyond his plaint, or demand what is not claimed in his plaint. The plaintiff cannot produce any evidence beyond his plaint either.
Oral evidence is all statements court allows to be made before it by witness, in relation to the facst under inquiry.
Oral evidence must be direct. It can refer only to facts which could be seen, heard, or perceived by any other sense. It normally cannot be opinions, unless the oral evidence is that of an expert called upon specifically to give his/her opinion.
An affidavit is a formal written statement confirmed by oath or affirmation, setting out any fact, for use as evidence in court. Oral (spoken) evidence is only allowed with the Judge’s permission, as such affidavits are the main way you present evidence (facts of the case) to a court.
The affidavit is a statement of facts. It should set out observations without colour or comments, and should not set out the opinion of the person making the affidavit, except when the affidavit itself is to make an opinion, such as a doctor’s affidavit in a case.
An affidavit must be sworn, or affirmed, usually before a Justice of the Peace, Commissioner of Oaths or solicitor, as a true record. Any affidavit filed in court to support a case must be served on all parties
A power of attorney (POA) is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent or the attorney-in-fact.
The person who creates a power of attorney, known as the grantor, can only do so when he/she has the requisite mental capacity.
For a power of attorney to become a legally enforceable document, it must be signed and dated by the principal, be witnessesed, and notarized. If the attorney-in-fact is being paid to act on behalf of the principal, a contract for payment may be separate from the document granting power of attorney.
Depending on the jurisdiction, a power of attorney may be oral and, whether witnessed, will hold up in court, the same as if it were in writing. Many institutions, such as hospitals, banks and, in the United States, the Internal Revenue Service, require a power of attorney to be in writing before they will honour it, and they will usually keep a duplicate original or a copy for their records. Nursing homes often follow the same practice.
Standardized forms are available for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. Such forms are legally valid, but a grantor should exercise caution when using a standardized POA form obtained from a source other than a lawyer.
•A general power of attorney allows the agent to make all personal and business decisions, with no time limit specified.
•A temporary power of attorney is one with a limited time frame.
•A special power of attorney is limited to a specified act or type of act.
•Durable power of attorney: Normally, if the grantor loses capacity to grant permission after the power of attorney has been created, such as if he/she contacts Alzheimer’s disease or suffers from a head injury in a car crash, then the PoA will no longer be effective, unless the original power of attorney specifically wishes the document to remain in effect even after the granter becomes incapacitated. PoA with such a wish is durable power of attorney.
The grantor may cancel any type of power of attorney, at any time, as long as they have the mental capacity to do so. Any clause that waives the right of the granter to waive the PoA is void.
If a person does not have the capacity to execute a power of attorney (and does not already have a durable power in place), often the only way for another party to act on their behalf is to have a court impose a conservatorship or a guardianship.
Although a power of attorney grants the agent powers to perform acts in the absence of the grantor, the POA cannot grant powers to the agent that conflict with rules and regulations governing people and companies that the agent deals with. For example, if a bank has regulations that require the grantor to be physically present in the bank to perform certain actions, the POA cannot grant the agent power to perform those actions in the absence of the grantor.
A witness gives evidence that helps the court link or disproves the charge of the offence to the accused. He or she assists the court in finding out the truth, often corroborating the evidence on hand or disproving the available evidence or conjectures. Witnesses help in establishing and furthering the evidence related to the case.
A witness may be called upon by either the plaintiff or defendant, and cross-examined by the other side.
A witness may come willingly, and at times (often in criminal cases) may be obliged to attend a trial. When obliged, the witness receives a “a summons “ (also called “subpoena”.), which requires the witness to appear in court on the dates and times indicated, and makes the witness liable for arrest on failure to heed to the summons..
Witnesses are bound to answer all questions truthfully, and anyone who lies in court commits a crime known as “perjury”.
Witnesses are of many types:
1.Eye-witnesses: When the person personally witnessed something relevant to the case, such witnesses are called to reconstruct the scene of the crime, as it happened. The witness is confined to what they actually saw, rather than any inferences or assumptions.
2.Expert witnesses: Usually subject experts, to testify about a matter that is outside the ordinary knowledge of the judge or jury. Common types of expert witnesses are handwriting expert and doctors. The opinion of such witness is accepted as evidence at the discretion of the court.
3.Character witnesses: Character witnesses are persons known to the accused, to give evidence of good character, or otherwise, of the accused in a criminal case.
The following is the procedure for recording evidence of witnesses
•OATH: On being called upon by the judge, the witness is given an oath is given by the clerk.
•EXAMINATION: The lawyer who called the witness to give evidence questions the witness first, and through such questions tries to convince the court of the evidence the witness has to offer.
•CROSS-EXAMINATION: The lawyer for the other side asks the witness questions, aimed to cast doubt on the credibility of the witness. The lawyer can try to show the court that the witness doesn’t remember clearly or accurately what happened, that the witness is not impartial or that the witness is not telling the whole truth.
•RE-EXAMINATION: If the first lawyer thinks necessary, he or she can examine the witness again to clarify, correct or explain what was said during cross-examination. This can be followed by another cross-re-examination. Both the re-examination and the cross-re-examination are at the discretion of the judge.
In recording evidence, magistrates take care to see that it is relevant and admissible under the provisions of the Indian Evidence Act. If any objection is raised as to the admissibility of any evidence, the judge endeavours to decide it forthwith and the particular piece of evidence objected to, the objection and the decision thereon is normally recorded clearly.
For cases falling under section 355 of Evidence Act, the presiding officer is required only to record a memorandum of the substance of the evidence, while in those falling under section 356, the evidence must be recorded in full. The proceedings may be taken down by the presiding officer’s own hand or cause it to be taken down from his dictation in open court. The evidence so taken down shall be signed by the presiding officer and shall form part of the record.
An approver is an accomplice to a felony who confesses his or her guilt and gives evidence against his or her confederates. He/she is directly or indirectly involved in the crime, and arraigned for it.
The CrPC does not define “approver,” but generally courts in India offer pardon under Sn 337 of CrPC to secure his testimony against other persons guilty of the offence. The state takes to such recourse in cases such as dacoity and terrorism, where independent evidence is hard to come by, and booking perpetuators may otherwise prove to be difficult. It is now almost a universal rule of practice not to base a conviction on the testimony of an accomplice unless it is corroborated in material particulars.
A tender of pardon for an approver may be made by a first class magistrate or higher, in cases of all offences punishable with imprisonment of seven years or more. An approver accepting a pardon under Section 337, Criminal Procedure Code is “detained in custody” until the termination of the trial.
Confession is a formal statement admitting that one is guilty of a crime. The term presumes the speaker provides information that he believes the other party is not already aware of.
Confession often benefits the confessor. Paul Wilkes characterizes confession as “a pillar of mental health” because of its ability to relieve anxieties associated with keeping secrets. Confessors are more likely to confess when the expected benefits outweigh the marginal costs (when the benefit of the offense to them is high, the cost to the victim is low, and the probability of information leakage is high).
In U.S. law, a confession must be voluntary in order to admissible. Likewise in India there are several conditions to be met, before confessions can be admitted as evidence. Confessions made under duress, such as extracted under torture, are not admissible.
A speaking order contains all the details of the issue, with the judge making clear cut explanation of the findings. The courts usually give speaking orders except when the appeal is dismissed as the court agrees with the lower court.
A non-speaking order is when the case is summarily dismissed or the judgement is passed without a discussion on the background thereof, reasons and clear findings. A non-speaking order is opaque, and even unjust, as the reasons for the judgements and what has been considered by the court in arriving at the decision is not made explicit. The Supreme Court has held that lower courts cannot pass a non-speaking order except in very few cases. The SC also uses non-speaking orders very sparingly.
Capital Punishment is the legally authorized killing of someone as punishment for a crime. Such a form of punishment exists in many countries of the world, including USA, India, China, Singapore, UAE, Saudi Arabia, and other places, and is implemented in many ways, such as death by hanging, administering electric shock, through lethal injection, death by firing squad, beheading, and more. Many countries, such as Portugal, Germany, Greece, Mexcico, etc have however abolished capital punishment as a form of punishment. Some other countries such as Israel, Brazil, Peru and Kazakhstan give capital punishment only for exceptional crimes, and not for ordinary crimes.
Capital punishment is a legal penalty in India, and has been carried out in five instances since 1995, the latest ones being the hangings of Ajmal Kasab, Afzal Guru, and Yakub Memon. Under Article 21 of the Constitution of India, no person can be deprived of his life except according to procedure established by law.
After the award of the death sentence by a sessions court, the sentence must be confirmed by a High Court to make it final. Once confirmed, the condemned convict has the option of appealing to the Supreme Court. If this is not possible, or if the Supreme Court turns down the appeal or refuses to hear the petition, the condemned person can submit a ‘mercy petition’ to the President of India and the Governor of the State.
The present day constitutional clemency powers of the President and Governors originate from the Government of India Act 1935 but, unlike the Governor-General, the President and Governors in independent India do not have any prerogative clemency powers.
The execution of death sentence in India is carried out by hanging by the neck till death. The Army Act also allows shooting to death, at court martial.
Grave offences such as murder, rape with injuries that may result in the death of a victim and a repeat offender, waging war against the State, and terrorism-related offences causing death are some major crimes punishable with death under the Indian Penal Code. Similarly, there are provisions under The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act wherein capital punishment is prescribed as one of the punishments for serious offences. The now-repealed Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) also contained provisions for death sentence.
On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi, the Government passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a “persistent vegetative state”. The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.
In Dec 2007, India voted against a UN General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to end the capital punishment globally.
Nevertheless, on 31 August 2015, the Law Commission of India submitted a report to the government which recommended the abolition of capital punishment for all crimes in India, excepting the crime of waging war against the nation or for terrorism-related offences. The report cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect.
In Bachan Singh vs. State of Punjab (1980), SC made it clear that Capital punishment can be given only in rarest of rare cases. The SC upheld death penalty for those indulging in honour killings, and also on police officials who commit police brutality in the form of encounter killings.
In January 2014, a three-judge panel headed by Chief Justice of India Palanisamy Sathasivam commuted sentences of 15 death row convicts, ruling that the “inordinate and inexplicable delay is a ground for commuting death penalty to life sentence”. Supreme Court of India ruled that delays ranging from seven to 11 years in the disposal of mercy pleas are grounds for clemency. In February 2014, Supreme Court commuted death sentence of Rajiv Gandhi’s killers on the basis of 11-year delay in deciding on mercy plea. It was subsequently commuted to life imprisonment.
PART IV: LEGAL MAXIMS AND DOCTRINES
“Stare decisis” means “to stand by which is decided.” It is the principle of following the rules or principles laid down in previous judicial decisions.
Stair decesis dictates that the court must abide or adhere to decided cases. Once a law has been determined by the appellate court to be relevant to the facts of the case, future cases will follow the same principle of law if they involve considerably identical facts. The point settled by a decision in court forms a precedent.
Horizontal stare decisis refer to a court adhering to its own precedent.
Vertical stare decisis refers to a court applying precedent from a higher court.
The Supreme Court usually refers to its previous decisions even if the soundness of the decision is in doubt. The predictability afforded by the doctrine helps clarify constitutional rights for the public. However, critics argue the doctrine occasionally permits erroneous decisions to continue influencing the law and encumbers the legal system’s ability to quickly adapt to change.
Nevertheless, stare decisis is not an “inexorable command.” On occasion, the Court will decide not to apply the doctrine if a prior decision is deemed unworkable. In addition, significant societal changes may also prompt the Court to overrule precedent; however, any decision to overrule precedent is exercised cautiously. The doctrine is frequently overruled by courts in international trade laws.
Obiter Dictum is an incidental remark. It is a judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent. A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are obiter dicta
Courts may nevertheless consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts.
Ratio decidenti, meaning “the reason,” is the the rule of law on which a judicial decision is based. It is the legal rule derived from, and consistent with, the legal, moral, social, and political reasoning within a judgment on which the outcome of the case depends.
The ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction, in common law countries, through the doctrine of stare decisis. As such, ratio decidendi is one of the most powerful tools available to a lawyer. Factors that can strengthen or weaken the strength of the stair decisis in applying ratio decidenti of one case to another case include:
1.Rank of the court (Supreme Court versus an appellate court)
2.Number of issues decided in the case (multiple issues may result in a so-called “multi-legged holdings”)
3.Authority or respect of the judge(s)
4.Number of concurring and dissenting judges
5.New applicable statutes
6.Similarity of the environment as opposed to the age of the holding
Res Judicata = a matter [already] judged; also known as “claim preclusion.”
Res Judicata is a legal doctrine which means the matter has been adjudicated by a competent court, a final judgment is made, and the case is no longer subject to appeal. The matter cannot be raised again, either in the same court or in a different court.
The doctrine is meant to bar or preclude continued litigation.
The principle of res judicata may be used either by a judge or a defendant.
-Once a final judgment has been handed down in a lawsuit, subsequent judges confronted with a suit identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment.
-A defendant in a lawsuit may use res judicata as defense. The general rule is that a plaintiff who prosecuted an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where:
oThe claim is based on the same transaction that was at issue in the first action
oThe plaintiff seeks a different remedy, or further remedy, than was obtained in the first action
oThe claim is of such nature as could have been joined in the first action.
A very common use of the res judicata principle is to preclude plaintiffs after a class action suit has been settled even on plaintiffs who were not part of the original action because they could have joined that original action.
Res Judicata is an established principle in common law countries.
The Seventh Amendment to the United States Constitution provides that no fact having been tried by a jury shall be otherwise re-examinable in any court of the United States or of any state than according to the rules of law.
‘Res judicata’ does not apply to income tax and sales tax cases. In Instalment Supply (Pvt) Ltd, Vs Union of India (1976), SC held: ‘each year’s assessment is final only for that year and does not govern later years. However, it doesn’t mean that tax authorities can reopen arbitrarily a question previously settled.
‘Res judicata’ applies to writ proceedings as well. Once a writ petition has been moved in a high court or Supreme Court (SC) and has been rejected there on merits, then a subsequent writ cannot be moved in the same court on the same cause of action (M S M Sharma Vs Sinha, 1960)
There are limited exceptions to res judicata based on procedural or jurisdictional issues, based on the authority or competence of the earlier court to issue that decision, rather than on wisdom of the judgment.
A re-trial may be allowed if
-It is in accordance with the law and penal procedure of the State concerned
-There is evidence of new or newly discovered facts, or
-There has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
Stephen Lawrence was murdered in an apparent racially motivated attack in 1993. The NY Metropolitan Police arrested five suspects, all of whom were acquitted of murder. The Inquiry set up by the government, due to widespread concerns, concluded the investigation was “marred by a combination of professional incompetence, institutional racism, and a failure of leadership by senior officers”. In its wake, the Criminal Justice Act 2003 allowed people acquitted of certain offences, including murder, to be retried, providing both the Director of Public Prosecutions (DPP) and Court of Appeal are satisfied that there is ‘new and compelling evidence.
Res judicata does not restrict the appeals process, which is a linear extension of the same lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals challenge a judgment whereas Res Judicata tries to start a new trial. Once the appeals process is exhausted or waived, res judicata will apply even to a judgment that is contrary to law.
The doctrine of res-sub-judice provides no court shall proceed with the trial of any suit in which the mater in issue is already pending in the same or any other court. Section 10 of CrPC provides the doctrine of res sub-judice in India. Also, once the matter is finally decided by a competent court, no party can be permitted to re-open it in subsequent litigation.
Estoppel is a legal principle that precludes a person from alleging or arguing facts that are contrary to his previous claims or actions.
The doctrine of estoppels is based on the principles of justice, fair play and good conscience. It was evolved by equity to prevent injustice. Most common law countries have included the doctrine of estoppel in their laws.
Sn. 115 of Indian Evidence Act (1972) establishes the doctrine of estoppel in India. According to this section, when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Equitable estoppel: Prevents a person from going back on his word.
Prevents a person from going back to court on the same grievance, to prevent legal harassment and abuse of legal resources. This is similar to Res Judicata.
Used in contract law, to prevent a party to a contract from doing certain things or acting in a certain way because it agreed not to and its contracting party relied on that representation and then acted upon it. For example, promissory estoppel may be used by a charity to enforce gift pledges.
The courts have identified four criteria that trigger the existence of a strong enough promise to bring about estoppel between a promisor and a promisee:
•The promisor made a promise significant enough to cause the promisee to act on it.
•The promisee relied upon the promise.
•The promisee suffered significant damage because the promisor reneged on the promise.
•The fulfilment of the promise is the only way the promisee can be compensated.
If a matter has been decided by a court in one country, especially in criminal matters, then it cannot be retried in another country. This is derived from the notion of res judicata.
A certified statement by a tenant that verifies the terms and conditions and current status of their lease. The tenant estoppel provides proof of cash flow, which is ultimately what a potential investor or lender in a property is concerned with. The aim of tenant estoppel is to pre-empt the tenant from taking a position contrary to what is stated in their certificate.
Estoppel is often used as a legal defence tool used when someone reneges on or contradicts a previous agreement or claim. When a fact has been determined by a court or agreed on by the parties to litigation, from then on, neither of the parties can call it in question.
Eclipse means overshadow. A law becomes void not in toto or for all purposes or for all times or for all persons but only “to the extent of inconsistency “with the superior statue that eclipses it.
In India, the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws. It holds such laws are not null and void ab initio but simply become unenforceable to the extent of its inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.
The Supreme Court of India introduced the doctrine of eclipse in 1955, in the case of B. Narain vs. the State of MP. Petitioners carried on business as stage carriage operators of Madhya Pradesh, on strength of C.P. & Berar Motor Vehicles (Amendment) Act, 1947. The government moved to create a monopoly of the motor transport business in its favour, to the exclusion of all motor transport operators. Petitioners argued with the passing of the Constitution and the grant of fundamental rights, the act on which route monopolization was made is rendered void.
The Supreme Court initially applied the doctrine of eclipse only to pre-constitutional laws but in the case of the state of Gujarat vs. Shri Ambika Mills (1974), it stated the doctrine can be extended to the post constitutional laws as well.
The doctrine of severability holds if an enactment cannot be saved by construing it consistent with its constitutionality, it may be seen whether it can be partly saved.
SC established the doctrine of severability in India in R.M.D. Chamarbaugwalla v. The Union of India. SC held “If a part of a statute turns out to be void, that should not affect the validity of the rest of it. … When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid.”
If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable.
The court may resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable
In A. K. Gopalan v. State of Madras, SC observed “what we have to see is, whether the omission of the impugned portions of the Act will “change the nature or the structure or the object of the legislation”.
Laches is unreasonable delay in asserting a claim, which may result in its dismissal. It is based on the maxim “equity aids the vigilant and not those who slumber on their rights.”
Legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party. Elements of laches include knowledge of a claim, unreasonable delay, neglect, which taken together hurt the opponent.
A common field of application of laches is in inheritance cases, where a claimant makes a case after a very long time period, such as one or two decades.
The doctrine of laches often manifests in law by the statue of limitations, which installs time-bars, or prescribes a period of limitation for the bringing of actions of certain kinds.
“Respondent superior” means “the party is responsible for the acts of their agents.” It is same as vicarious liability. For instance, the employer is liable for acts of employees performed within the course of their employment, but does not normally apply to acts done by independent contractors. When an employee or a servant commits a civil wrong against a third party, the employer or master could be liable for the acts of the servant or employee when those acts are committed within the scope of the relationship. The third party could proceed against the servant and master. The action against the employee would be based on his conduct, and the action against the employer is based on the theory of vicarious liability.
This rule is also called the master-servant rule, recognized in both common and civil law jurisdictions. The applicability of this doctrine depends on the following tests:
1.Was the act committed within the time and space limits of the agency?
2.Was the offense incidental to, or of the same general nature as, the responsibilities the agent is authorized to perform?
3.Was the agent motivated to any degree to benefit the principal by committing the act?
4.The degree to which these are answered in the affirmative dictates the degree to which the doctrine can be applied.
The doctrine was applied (under the term “command responsibility”) by the Nuremberg war crimes tribunal to try Nazis after World War II. The Nuremberg trials established persons cannot use the defense that they were only following the orders of their superiors, if that order violates established international norms. Superiors who ordered or “should have known” of such violations yet failed to intervene were also held criminally liable.
“Ignorantia juris non excusat” means “ignorance of the law excuses not”. A person may not escape liability for violating that law merely because one was unaware of the law or its content. If ignorance were an excuse, a person charged with criminal offenses or a subject of a civil lawsuit would merely claim that one was unaware of the law in question to avoid liability.
Even though it would be impossible, even for someone with substantial legal training, to be aware of every law in operation in every aspect of a state’s activities, this is the price paid to ensure that wilful blindness cannot become the basis of exculpation.
An alternate explanation of the origin of the maxim is available in Greeks and Roman philosophy. These were cultures heavily influenced by customary legal systems. Within such a system, law is learned as a person participates in the culture and customs of the community. Thus it is unreasonable to believe a person could have avoided learning them. These rules and customs were also interwoven with ethical and religious dialog so that laws expressed what is right and good and deviation that which is not.
In modern times, the doctrine assumes that the law in question has been properly promulgated—published and distributed, for example, by being printed in a government gazette, made available over the internet, or printed in volumes available for sale to the public at affordable prices.
The ancient phrase of, “Leges instituuntur cum promulgantur” meaning “Laws are instituted when they are promulgated” runs corollary to this doctrine. A law can bind only when it is reasonably possible for those to whom it applies to acquire knowledge of it in order to observe it, even if actual knowledge of the law is absent for a particular individual. A secret law is no law at all.
“Actus non facit reum, nisi mens sit rea” means “an act does not make a person guilty, unless the mind is guilty.” A criminal act can be completed but no liability falls on the defendant if there is no merns rea or intention, or if he can disprove mens rea by a good defence or reasonable mistake.
“Mens rea” or “guilty mind” is the most difficult to prove of the components of the criminal liability, because “guilty” can have different connotations depending on the offence, and it is anyway difficult to establish what is inside one’s mind. Proving mens rea requires drawing conclusions from what the accused did or said before, during and after the event.
James Stephen writes in his “History of the Criminal Law” (1883): “The maxim is sometimes said to be a fundamental principle of the whole criminal law… It is frequently, though ignorantly, supposed to mean that there cannot be such a thing as legal guilt where there is no moral guilt, which is obviously untrue, as there is always a possibility of a conflict between law and morals.”
“Generalia Specialibus Non Derogant” means “the provisions of a general statute must yield to those of a special one.”
The Parliament passing an act does not repeal a previous particular act, unless there is an express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together. The special act may have its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, a subsequent general enactment does not repel the previous enactment.
Justice Locke wrote in Greenshields v. The Queen, “In the case of conflict between an earlier and a later statute, a repeal by implication is never to be favoured and is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together.
“Delegata potestas non potest delegari” means “no delegated powers can be further delegated.”
A person who has a bare power or authority from another to do an act, must execute it himself/herself, and cannot delegate his authority to another. The power being a trust or confidence reposed in him or her personally, it cannot be assigned to another person, whose ability and integrity might not be known to the principal, or, if known, might not be selected by him for such a purpose.
The principle traces its origin to ancient canon law, and applies in USA, UK, India, among other countries. The maxim was first cited by the Supreme Court of the United States in United States v. Sav. Bank, (1881) in which the case summary reports that one of the litigants argued, “The duty imposed by statute on the commissioner cannot be delegated to a collector.” In India, the law was first stated in A K Roy v. State Of Punjab, (1986) that sub delegation of delegated power is ultra vires to the Enabling Act.
“Actio Personalis Moritur Cum Persona” means “any right of action dies with the person.” The general rule in common law is that if an injury were done either to the person or to the property of another, for which only a tortous liability arouse, the action died with the person to whom, or by whom, the wrong was done.
The doctrine was unjust to begin with, as illustrated by the following example ““You can advise a motorist that when running down a child, it may give rise to an action for damages if the child is injured, but it will cost absolutely nothing to kill him outright.”
This doctrine has been substantially removed by statutes which allow the estate of a person involved in litigation for personal injuries (tort), to pursue and complete it in the name of the deceased, and likewise makes the estate of the deceased person liable in most cases, except in cases of defamation and some other torts.
The Kings bench first used this maxim in Cleymond v Vincent (1523) but it was it was popularized by Edward Coke, with famous cases such as Pynchon’s Case (1616), Bane’s Case, and Slades Case. (1605).
“Qui facit per alium facit per se” means “He who acts through another does the act himself.” It is a fundamental legal maxim of the law of agency, often applicable when discussing the liability of employer for the act of employee.
If in the nature of things, the master is obliged to perform the duties by employing servants, he is responsible for their act in the same way that he is responsible for his own acts. Whatever a principal can do for himself, can be done through an agent. The exception to this maxim would be acts of personal nature
“Ex turpi causa non oritur action” means “action does not arise from a dishonorable cause.” Also known as “illegality defence,” it means a plaintiff will not be able to pursue legal remedy if the act itself is illegal in the first place. This doctrine is applicable not just in tort, but also in law of contract and trusts.
In National Coal Board v England, Lord Asquith said, “If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence against A.”
In Hewison v Meridian Shipping Services Pte Ltd, it was held an employee who had obtained his position by concealing his epilepsy was not entitled to claim compensation for future loss of earnings as a result of his employer’s negligence, since his deception (resulting in a pecuniary advantage contrary to the Theft Act 1968) would prevent him from obtaining similar employment in future.
In some cases, the illegality of the act prevents a duty of care arising in the first place. If the illegality vanishes by result of legislative action (such as if the law that made the act that caused the injury was a crime is repealed) or some subsequent court case (where the law is declared invalid), the tort action will stand.
“Audi alteram partem” means “listen to the other side”, or “let the other side be heard as well”. It is an established legal principle that no person should be judged without a fair hearing in which each party is given an opportunity to present their side of the case, and respond to the evidence against them. “Audi alteram partem” is fundamental to the principles of natural justice or equity. As it is said, Even God himself did not pass sentence upon Adam before he was called upon to make his defence.
“Hear both sides” was treated as part of common wisdom by the ancient Greek dramatists. Habeas corpus was an early expression of the audi alteram partem principle.
The principle in modern jurisprudence includes the rights of a party or his lawyers to
•receive notice of a hearing
•have an opportunity to be represented or heard at the hearing.
•have counsel, if necessary at public expense, to make one’s case properly.
•have a fair opportunity to challenge the evidence presented by the other party,
•summon one’s own witnesses
•confront the witnesses against him,
Modern legal systems however differ on whether individuals can be convicted in absentia.
“Nemo Debel bis Vexari Pro Una Et Edaem Causa” means no one shall be tried twice for the same cause. This is a basic principle, popularly known as “Double Jeopardy” in both civil & criminal law.
Article 20(2) of the constitution of India also establishes this right, that no person shall be punished for the same offence more than once. Likewise Sn 300 of CrPC bars a second trial for the same offence as the case was tried and a judgment delivered in a competent court.
Ubi Jus Ibi Remedium means “where there is a right there is a remedy”. When a person’s right is violated, the victim will have an equitable remedy under law.
The person whose right is being infringed has a right to enforce the infringed right through any action before a court. For example, the constitution of India grants citizens the fundamental rights, and also the remedy to approach the Supreme Court or High Court with a writ, if the Fundamental Rights are violated. Similar is the case with all law courts, which issue decree against the violation of some right.
Contempt of court is the offence of being disobedient to or discourteous towards a court of law and its officers. It manifests in behavior that opposes or defies the authority, justice, and dignity of the court.
Contempt of court has two dimensions:
1. being rude or disrespectful to legal authorities in the courtroom
2. wilfully failing to obey a court order, such as such as injunctions.
When a court decides that an action constitutes contempt of court, it can issue a court order that in the context of a court trial or hearing declares a person or organization to have disobeyed or been disrespectful of the court’s authority, and issue sanctions the judge deems fit. Judges in common law systems have more extensive power to declare someone in contempt than judges in civil law systems.
In India contempt of court is of two types:
1. Civil Contempt Under Section 2(b) of the Contempt of Courts Act of 1971, which is wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
2. Criminal Contempt Under Section 2© of the Contempt of Courts Act of 1971, which is the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which: (i) Scandalises or tends to scandalise , or lowers or tends to lower the authority of, any court, or (ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
Locus standi” is Latin for ‘place to stand. ’It refers to the right or capacity to bring an action or to appear in a court. In essence the question of locus standi is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.
There are three requirements for a case to have locus standi in anyh court of law:
1.Injury: The plaintiff must have suffered or imminently will suffer injury. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
2.Causation: There must be a causal connection between the injury and the conduct complained
3.Redress ability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.
Normally, locus standi requires the party filing a suit to demonstrate sufficient connection to and harm from the law or action challenged. For instance, Locus Standi is mandatory for Article 32, which deals with right to move the supreme court for the enforcement of fundamental rights.
In Dr. George Mampilly v. State of Kerala (1984), Kerala HC allowed a third-person, not affected by the case to file a case, on behalf of the victims of action. Likewise, courts now allow many cases under PIL, which runs contrary to the rule of locus standi.
PART V: THE LAW AND THE SOCIETY
White collar crime is crime committed by the upper strata of the society. These types of crimes are distinct from traditional crimes such as murder, dacoity, rape, extortion, and other blue collar crimes. Such crimes are usually committed by businessmen and executives, who have a say in framing business policies and activities, or who have a great deal of authority vested under them.
The most common instance of white collar crimes are financial frauds, such as embezzlement, misappropriation, hacking of intellectual property, making ransom ware attacks, and more. However, the scope of white collar crimes is vast. Another significant dimension of white collar crimes are corporate crimes in violation of environmental laws, as manifested in Bhopal Gas Leak case. Instance of misrepresentation through false advertisements are also white collar crimes. Many corporate crimes go unreported and unpunished, as there is only a thin line separating unethical yet legal practices and actual crimes.
White Collar crimes may be classified in the following ways:
1. Ad-hoc crimes or personal crimes, such as cyber-crimes and embezzlement
2. Crime involving breach of trust, such as companies defrauding people (eg: Freedom 251 mobile fraud, stock market scams)
3. Crimes committed as part of business (eg: violation of trade mark, environmental pollution, tax evasion)
The Santharam Committee (1966), which studied White Collar crimes in-depth recommended including certain social and economic offenses in IPC
One of the earliest instance of white collar crime was the South Sea Bubble case of 1700s, where traders with charter for trade with South Africa estimated a higher value for their commodities, and took gullible investors fort a ride..
Public interest litigation is lawsuits introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party, aimed at protecting matters of public interest. The person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body.
The traditional rule of “Locus Standi” that a person, whose right is infringed alone can file a petition, has been considerably relaxed by the SC in its recent decisions, and PILs are the manifestation of such relaxation.
The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law.
The seeds of the concept of public interest litigation were initially sown in India by Justice VR Krishna Iyer in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai, when an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redress of common grievances.
In Fertilizer Corporation Kamgar Union vs. Union of India, (1981) Justice VR Krishna Iyer enumerated the following reasons for liberalization of the rule of Locus Standi:-
1.Exercise of State power to eradicate corruption may result in unrelated interference with individuals’ rights.
2.Social justice wan ants liberal judicial review administrative action.
3.Restrictive rules of standing are antithesis to a healthy system of administrative action.
4.“Activism is essential for participative public justice”.
In Hussainara Khatoon Vs State of Bihar, SC upheld that the prisoners should get benefit of free legal aid and fast hearing. Because of this case 40,000 prisoners, whose suits were pending in the court, were released from the jail. The special thing about this case was that it was not filed by any single prisoner, rather it was filed by various prisoners of the Bihar jail. It was Hussainara Khatoon’s petition that came up before the SC bench.
However, in a September 2008 speech, Prime Minister Manmohan Singh expressed concern over the misuse of PILs. In Kalyaneshwari vs Union of India, the court cited the misuse of public-interest litigation in business conflicts. A writ petition was filed in the Gujarat High Court seeking the closure of asbestos units, stating that the material was harmful to humans. The high court dismissed the petition, stating that it was filed at the behest of rival industrial groups who wanted to promote their products as asbestos substitutes. A similar petition was then submitted to the Supreme Court. The plea was dismissed, and the plaintiff was assessed a fine of Rs 100,000.
The credentials, the motive and the objective of the petitioner have to be apparently and patently above board. Otherwise the petition is liable to be dismissed at the threshold.
Judicial activism refers to judicial rulings that are suspected of being based on personal or political considerations, rather than on existing law. Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”
Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy. Defenders of judicial activism opine that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times. A third view is that so-called “objective” interpretation of the law does not exist. Many prominent judges and jurists acknowledge there were gaps and uncertainties in the law and that judges must sometimes make choices, and any use of judicial discretion will necessarily be shaped by the judge’s personal and professional experience and his or her views on a wide range of matters, from legal and juridical philosophy to morals and ethics.
One positive manifestation of judicial activism is the Bichri village case.
The private sector Hindustan Agro-Chemicals and its sister companies set up a chain of chemical units in Bichri, near Udaipur. Within a decade, the local populace was struck with disease, disaster and endless misery. Sulphurous sludge let out indiscriminately by the chemical factories clog the canals of most of Bichri’s fields. Effluent from another plant containing the highly toxic ‘H’ acid, a chemical banned from production in many countries in the West, flowed freely till recently into the nullahs contaminating the groundwater aquifers over large areas. The toxic chemicals turned 350 hectares of prime wetland into barren wasteland.
The SC stepped in and not only ordered the closure of the five offending chemical plants but also told the companies to compensate the villagers for the environmental damage.
NEERI put the total damage suffered by the villagers at Rs 3.4 2 crore, and damage to the environment at around Rs 37 crore.
This is the first time the Court ordered a polluting industrial unit to pay for the damage caused, and asked the Government to attach the companies immovable property and machinery, if need be, to recover the amount. In the Bhopal gas tragedy, the Court did order compensation but only in its role of an arbiter.
The case was triggered by a 1989 public-interest litigation by the Indian Council for Enviro-Legal Action.
Span Motels Private Limited, which has direct links with Kamal Nath encroached 27.12 bighas of land, including substantial forestland, in 1990, to construct Span Club. The land was later regularised and leased out to the company in 1994. The regularisation was done when Kamal Nath was Minister of Environment and Forests. Then karma played its hand. The encroachment led to the swelling of the Beas River, and the swollen river changed its course and engulfed the Span Club and the adjoining lawns, washing it away. Nevertheless, the river became highly unstable, and efforts by Span Club to control the damage aggravated the situation.
All this is when the public has a right to expect certain lands and natural areas to retain their natural characteristic. “The Doctrine of the Public Trust,” the legal theory developed by the ancient Roman Empire, is relevant here. This doctrine holds certain common properties such as rivers, sea-shore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Under the Roman Law these resources were either owned by no one (Res Nullious) or by every one in common (Res Communious). Certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership.
Under the English common law the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests.
Supreme Court of California said in the Mono Lake case says, “….the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust….”
In the case related to Span Club, the court held the Himachal Pradesh Government guilty of committing breach of public trust by leasing the ecologically fragile land to the club. The public trust doctrine, as discussed by the Court in this judgment was a part of the law of the land. The prior approval granted by the Government of India, Ministry of Environment and Forest and the lease-deed dated 11.04.1994 in favour of the Motel were quashed. The lease granted to the Motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. The court directed Himachal Pradesh Government to take over the area and restore it to its original-natural conditions, and made the company pay compensation by way of cost for the restitution of the environment and ecology of the area.
This book covers the basics of law in India. The first part of the book deals with the concept of sovereignty and rule of law. The second part summarizes the Constitution of India. The third part is an overview of the administration of justice in India including procedures of arrest, hierarchy of court, rules for interpretation of statues, procedure for bail, rules of evidence etc. The fourth part gives an overview of various legal doctrines and maxims. The fifth part contains a gist of the application of the law in the society, including topics such as Public Interest Litigation, Judicial Activism, and more. This work is especially useful for law students in India.