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

Under this school fall most of the ancient definitions given by Roman and other ancient Jurists.

Ulpine defined Law as "the art or science of what is equitable and good.” Cicero said that Law is "the highest reason implanted in nature." Justinian's Digest defines Law as "the standard of what is just and unjust."

In all these definitions, propounded by Romans, “justice” is the main and guiding element of law.

Ancient Hindu view was that 'law' is the command of God and not of any political sovereign. Everybody including the ruler, is bound to obey it. Thus, 'law' is a part of "Dharma". The idea of "justice" is always present in Hindu concept of law.

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

In other words, the law consists of rules recognised and acted upon by the courts of Justice. It may be noted that there are two main factors of the definition. First, that to understand law, one should know its purpose: Second, in order to ascertain the true nature of law, one should go to the courts and not to the legislature.

Ans. The Charters of the several High Courts established by the British Government directed that when the law was silent on a matter, they should decide the cases in accordance with justice, equity and good conscience. Justice, equity and good conscience have been generally interpreted to mean rules of English law on an analogous matter as modified to suit the Indian conditions and circumstances.

The Supreme Court has stated that it is now well established that in the absence of any rule of Hindu Law, the courts have authority to decide cases on the principles of justice, equity and good conscience unless in doing so the decision would be repugnant to, or inconsistent with, any doctrine or theory of Hindu Law.

In the absence of any rule of a statutory law or custom or personal law, the Indian courts apply to the decision of a case what is known as "justice, equity and good conscience", which may mean the rules of English Law in so far as they are applicable to Indian society and circumstances.

Ans.

• The concept of “justice, equity and good conscience” was introduced by Impey’s Regulations of 1781.

• In personal law disputes, the courts are required to apply the personal law of the defendant if the point at issue is not covered by any statute or custom.

• In the absence of any rule of a statutory law or custom or personal law, the Indian courts apply to the decision of a case what is known as “justice, equity and good conscience”, which may mean the rules of English Law in so far as they are applicable to Indian society and circumstances.

• The Ancient Hindu Law had its own versions of the doctrine of justice, equity and good conscience.

• In its modern version, justice, equity and good conscience as a source of law, owes its origin to the beginning of the British administration of justice in India.

• The Charters of the several High Courts established by the British Government directed that when the law was silent on a matter, they should decide the cases in accordance with justice, equity and good conscience.

• Justice, equity and good conscience have been generally interpreted to mean rules of English law on an analogous matter as modified to suit the Indian conditions and circumstances.

• The Supreme Court has stated that it is now well established that in the absence of any rule of Hindu Law, the courts have authority to decide cases on the principles of justice, equity and good conscience unless in doing so the decision would be repugnant to, or inconsistent with, any doctrine or theory of Hindu Law.

or

or

Ans. Requisites of a Valid Custom

A custom will be valid at law and will have a binding force only if it fulfils the following essential conditions:

1. Immemorial (Antiquity) : A custom to be valid must be proved to be immemorial; it must be ancient. According to Blackstone, "A custom, in order that it may be legal and binding must have been used so long that the memory of man runs not to the contrary, so that, if any one can show the beginning of it, it is no good custom". English Law places a limit to legal memory to reach back to the year of accession of Richard 1 in 1189 as enough to constitute the antiquity of a custom. In India, the English Law regarding legal memory is not applied. All that is required to be proved is that the alleged custom is ancient.

2. Certainty : The custom must be certain and definite, and must not be vague and ambiguous.

3. Reasonableness : A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience.

4. Compulsory Observance : A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.

5. Conformity with Law and Public Morality : A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.

6. Unanimity of Opinion : The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.

7. Peaceable Enjoyment : The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.

8. Consistency : There must be consistency among the customs. Custom must not come into conflict with the other established customs.

Discuss the ‘‘Doctrine of Stare Decisis’’, under the sources of law. (Dec, 19 – 5 Marks)

Ans. Doctrine of Stare Decisis

• Doctrine of Stare Decisis means adherence to past decisions and not unsettling things that are already established.

• It is a useful doctrine aimed at bringing certainty and uniformity in the law.

• Under this doctrine, a principle of law that has been settled by a series of decisions is generally binding on the courts.

• Such principles should be followed in similar cases, ensuring consistency in judicial decisions.

• In simple terms, it implies that like cases should be decided alike.

• This doctrine is based on public policy, supporting the predictability and stability of legal outcomes.

• Although courts are expected to strictly adhere to this doctrine, it is not universally applicable.

• The doctrine should not be viewed as rigid or inevitable, especially when its application would come at the cost of justice.

How ratio decidendi differs from obiter dicta? (June, 22 – 4 Marks)

Distinguish between ‘Ratio Decidendi’ and ‘Obiter Dicta’ in a judgment by a Court. (Dec, 18 – 4 Marks)

Ans.

Ans. Declaratory Precedents

According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. In the case of a declaratory precedent, the rule is applied because it is already a law. In the case of advanced countries, declaratory precedents are more numerous. A declaratory precedent is as good a source of law as an original precedent.

Persuasive Precedents

A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law in India, the decisions of one High Court are only persuasive precedents in the other High Courts. The rulings of the English and American Courts are persuasive precedents only.

Ans. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries.

Precedents may be classified as:

1. Declaratory and Original Precedents:

• According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule of law.

• In the case of a declaratory precedent, the rule is applied because it is already a law. In the case of an original precedent, it is law for the future because it is now applied.

• In the case of advanced countries, declaratory precedents are more numerous. The number of original precedents is small but their importance is very great. They alone develop the law of the country. They serve as good evidence of law for the future. A declaratory precedent is as good a source of law as an original precedent. The legal authority of both is exactly the same.

  1. Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical source of law. Thus, in India, the decisions of one High Court are only persuasive precedents in the other High Courts. The rulings of the English and American Courts are persuasive precedents only. Obiter dicta also have only persuasive value.

  2. Absolutely Authoritative Precedents:

• Definition: An authoritative precedent is one that must be followed by judges, regardless of whether they agree with it or not.

• Binding Nature:

• Its binding force is absolute.

• The judge has no discretion and must follow it.

• It has a legal claim to implicit obedience, even if the judge believes it is incorrect.

• Legal Status:

• It is a legal source of law, not just of historical importance like persuasive precedents.

• Application in Indian Judiciary:

• Every court in India is bound by decisions of courts superior to it.

• Subordinate courts must follow the decisions of the High Court to which they are subordinate.

• A single judge of a High Court must follow the decision of a bench of two or more judges.

• All courts in India are bound by the decisions of the Supreme Court.

1. Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances. The court is entitled to disregard a decision if it is a wrong one, i.e., contrary to law and reason.

Ans. Bentham Theory of Law (Theory of Pain and Pleasure)

Jeremy Bentham was the pioneer of analytical jurisprudence in Britain.

According to him ‗a law‘ may be defined as an assemblage of signs, declarative of volition, conceived or adopted by a sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or a class of persons, who in the case in question are or are supposed to be subject to his power. Thus, Bentham’s concept of law is an imperative one.

Bentham was of the initial contributors on the function that laws should perform in a society.

He claimed that nature has placed man under the command of two sovereigns-

• pain and

• pleasure.

The function of laws should be to bring about the maximum happiness of each individual for the happiness of each will result in the happiness of all. The justification for having laws is that they are an important means of ensuring happiness of the members of community generally. Hence, the sovereign power of making laws should be wielded, not to guarantee the selfish desires of individuals, but consciously to secure the common good.

Ans. Jeremy Bentham was of the initial contributors on the function that laws should perform in a society. He claimed that nature has placed man under the command of two sovereigns- pain and pleasure. ‘Pleasure’ in Bentham’s theory has a somewhat large signification, including altruistic and obligatory conduct, the ‘principle of benevolence’; while his idea of ‘interest’ was anything promoting pleasure. The function of laws should be to bring about the maximum happiness of each individual for the happiness of each will result in the happiness of all. The justification for having laws is that they are an important means of ensuring happiness of the members of community generally. Hence, the sovereign power of making laws should be wielded, not to guarantee the selfish desires of individuals, but consciously to secure the common good.

Bentham said that every law may be considered in eight different respects. These are as under:

1. Source: The source of a law is the will of the sovereign, who may conceive laws which he personally issues, or adopt laws previously issued by sovereigns or subordinate authorities, or he may adopt laws to be issued in the future by subordinate authorities. Sovereign according to Bentham is any person or assemblage of person to whose will a whole political community is supposed to be in a disposition to pay obedience, and then in preference to the will of any other person.

2. Subjects: These may be persons or things. Each of these may be active or passive subjects, i.e., the agent with which an act commences or terminates.

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

4. Extent: Direct extent means that law covers a portion of land on which acts have their termination; indirect extent refers to the relation of an actor to a thing.

5. Aspects: Every law has ‘directive’ and a ‘sanctional’ part. The former concerns the aspects of the sovereign will towards an act-situation and the latter concerns the force of a law. The four aspects of the sovereign will are command, prohibition, non-prohibition and non- command and the whole range of laws are covered under it. These four aspects are related to each other by opposition and concomitancy.

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

7. Remedial appendage: These are a set of subsidiary laws addressed to the judges through which the judges cure the evil (compensation), stop the evil, or prevent future evil.

8. Expression: A law, in the ultimate, is an expression of a sovereign’s will. The connection with will raises the problem of discovering the will from the expression.

Having listed the eight different respects through which a law can be considered, Bentham went on to analyse the ‘completeness’ of law in jurisprudential sense. He said that a complete law would have the features of integrality as well as unity. Integrality means that a law should be complete in expression, connection and design. A law is complete in expression when the actual will of the legislation has been completely expressed. A law is complete when various parts of it dealing with various aspects are well co-ordinated. If a law does not cover a specific situation that it might have wanted to cover while being enacted, it is incomplete in design. According to Bentham the unity of a law would depend upon the unity of the species of the act which is the object of the law.

Ans. Roscoe Pound a distinguished American legal scholar drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering. The goal of this theory was to build such a structure of society where the satisfaction of maximum of wants was achieved with the minimum of friction and waste. Such a society according to Roscoe Pound would be an ‘efficient’ society. Realisation of such a social structure would require balancing of competing interests. Roscoe Pound defined interests as claims or wants or desires which men assert de facto, and about which law must do something, if organised societies are to endure. For any legal order to be successful in structuring an efficient society, there has to be a recognition of certain interests- individual, public and social; a definition of the limits within which such interest will be legally recognized and given effect to and securing of those interests within the limits as defined.

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

1. Preparation of an inventory of interests and their classification.

2. Selection of the interests which should be legally recognized.

3. Demarcation of the limits of securing the interest so selected.

4. Consideration of the means whereby laws might secure the interests when these have been acknowledged and delimited, and

5. Evolution of the principles of valuation of interests.

Roscoe Pound’s classification of interests are as follows:

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

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

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

Ans. Roscoe Pound drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering. The goal of this theory was to build such a structure of society where the satisfaction of wants of maximum was achieved with the minimum of friction and waste. Such a society according to Roscoe Pound would be an ‘efficient’ society. Realisation of such a social structure would require balancing of competing interests.

Roscoe Pound’s classification of interests are as follows:

1. Individual interest: These are claims or demands determined from the standpoint of individual’s life and concern. They are-

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

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

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

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

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

   2. Interests of the state as guardian of social interest.

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

   1. Social interest in the general security: This includes general safety, peace and order, general health, security of acquisition and transaction.

   2. Social interest in the security of social institutions such as domestic, religious, political and economic institutions.

   3. Social interest in general morals like laws dealing with prostitution, gambling, bigamy, drunkenness.

   4. Social interest in the conservation of social resources like the natural and human resource. This social interest clashes to some extent with the individual interest in dealing with one’s own property as on pleases.

   5. Social interest in general progress. It has three aspects- economic, political and cultural.

   6. Social interest in individual life. It involves self-assertion, opportunity and conditions of life. Society is interested in individual life because individuals are its building blocks.

Having given various interest recognized by law, Roscoe Pound applied himself to figure out to balance competing interests. He said that interests should be weighed on the same plane. According to him one cannot balance an individual interest against a social interest, since that very way of stating them may reflect a decision already made. Thus, all the interests should be transferred to the same place, most preferably to the social plane, which is the most general, for any meaningful comparison.

Ans. According to Austin, Law is the command of sovereign that is backed by sanction. Austin has propagated that law is a command which imposes a duty and the failure to fulfill the duty is met with sanctions (punishment).

According to Austin Law has three main features:

1. It is a command.

2. It is given by a sovereign authority.

3. It has a sanction behind it.

Command is an expression of wish or desire of an intelligent person, directing another person to do or to forbear from doing some act, and the violation of this wish will be followed by evil consequences on the person so directed. Command requires the presence of two parties- the commander (political superior) and the commanded (political inferior). Sanction is the evil consequence that follows on the violation of a command.

In Austin's theory, sovereign is politically superior. He has defined sovereign as an authority that receives habitual obedience from the people but itself does not obey some other authority habitually. According to Austin, the sovereign is the source of all laws. Sanction should not also be confused with a reward that might be on offer if a given conduct is followed or refrained from. Reward confers a positive right whereas a sanction is a negative consequence.

According to Austin the sovereign does not have to obey anyone but the modern states have their powers limited by national and international laws and norms.

or

Ans. Hans Kelson is known for his 'Pure Theory of Law'. Kelson believed that the contemporary study and theories of law were impure as they were drew upon from various other fields like religion and morality to explain legal concepts. Kelson, like Austin was a positivist, in that he focused his attention on what the law was and divested moral, ideal or ethical elements from law. He discarded the, notion of justice as an essential element of law because many laws, though not just, may still continue as law.

Kelson described law as a "normative science' as distinguished from natural sciences which are based on cause and effect, such as law of gravitation. The laws of natural science are capable of being accurately described, determined and discovered whereas the science of law is knowledge of what law ought to be. Kelson considered sanction as an essential element of law but he preferred to call it 'norm'. According to Kelson, 'law is a primary norm which stipulates sanction'.

According to Kelson, 'norm (sanction) is rules forbidding or prescribing certain behaviour'. He saw legal order as the hierarchy of norms having sanction, and jurisprudence was the study of these norms which comprised legal order. Kelson distinguished moral norm with legal norm and said that though moral norms are 'ought prepositions, a violation of it does not have any penal fallout. The 'ought’ in the legal norm refers to the sanction to be applied for violation of law.

According to Kelson, legal-normative meaning is assigned to certain actions and not to others depending on whether that event is accorded any legal-normative by any other legal norm. This second norm gains its validity from some other norm that is placed above it. The successive authorizations come to an end at the highest possible norm which was termed by Kelson as 'Grundnorm'. Thus, Kelson's pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm. Grundnorm or basic norm determines the content and gives validity to other norms derived from it. In his view the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself.

Ans.

1. Validity of Laws in India

   • A law in India is considered valid if it is passed by the Parliament and approved by the President.

   • But the Parliament and President get their authority from the Constitution.

2. Validity of the Constitution – Grundnorm

   • When we ask where the Constitution gets its authority from, there is no answer.

   • So, according to Hans Kelsen’s Pure Theory of Law, the Constitution is the Grundnorm (or basic norm).

   • A Grundnorm is assumed to be valid by itself. It is not based on any higher rule.

3. Types of Norms in the Legal System

   • Grundnorm: The top-most norm. It gives power to all other laws.

   • Superior Norms: These are general laws made under the authority of the Grundnorm. They are below the Grundnorm but above subordinate laws.

   • Subordinate Norms: These are detailed or specific rules created to help enforce the superior norms. They get their power from the superior norms.

4. Hierarchy of Norms

   • Kelsen explained that law works in a pyramid structure:

     • At the top is the Grundnorm.

     • Below it are superior laws.

     • At the bottom are subordinate laws.

   • Each law or norm gets its validity from the one above it.

5. Law as a Normative Science

   • Kelsen called law a normative science, which deals with what ought to be done, not what actually happens.

   • This is different from natural sciences like physics, which are based on cause and effect.

6. Role of Sanctions in Law

   • Like legal thinker Austin, Kelsen believed sanction (punishment or consequence) is important in law.

   • But Kelsen used the word “norm” instead of “command”.

   • He said: Law is a norm that tells us what should be done, and what will happen if it's not done.

7. Meaning of Norm

   • A norm is a rule that either orders or forbids certain behavior.

   • A legal norm includes a sanction or penalty if it is broken.

8. Moral Norms vs Legal Norms

   • Moral norms also tell us what we ought to do.

   • But if you break a moral norm, there is no legal punishment.

   • If you break a legal norm, there is a sanction or legal consequence.

9. How Norms Get Legal Meaning

   • An action has legal meaning only if a legal rule recognizes it.

   • This rule gets its authority from another higher rule.

   • This chain of legal rules ends at the Grundnorm.

10. Grundnorm – Final Source of Law

• The Grundnorm or basic norm is the final source of all legal authority.

• It decides the content and gives power to all other laws.

• It does not get its authority from any other norm.

Ans. The essential features of a Federal Polity or System are – dual Government, distribution of powers, supremacy of the Constitution, independence of Judiciary, written Constitution, and a rigid procedure for the amendment of the Constitution.

The political system introduced by our Constitution contain all the above essentials of a federal polity such as:

1. Multiple Levels of Government in India - In India, there are Governments at different levels, like Union and States.

2. Distribution of Legislative Powers – Seventh Schedule - Powers to make laws have been suitably distributed among them by way of various lists as per the Seventh Schedule.

3. Constitutional Boundaries for Law Making - Both Union and States have to follow the Constitutional provisions when they make laws.

4. Independent Judiciary and Dispute Resolution - The Judiciary is independent with regard to judicial matters and judiciary can test the validity of independently. The Supreme Court decides the disputes between the Union and the States, or the States inter se.

5. Supremacy of the Constitution - The Constitution is supreme and if it is to be amended, it is possible only by following the procedure provided in Article 368 of the Constitution itself.

From the above, it is clear that the Indian Constitution basically has federal features.

or

Ans. Article 12 of the Constitution of India defines State and its scope includes the Government and Parliament of India; the Government and Legislature of each of the States; and all local or other authorities within the territory of India or under the control of the Government of India.

In the case of Ajay Hasia v. Khalid Mujib, AIR 1981 SC 481, the Supreme Court has enunciated the following test for determining whether an entity is an instrumentality or agency of the State:

1. Ownership of Share Capital by Government - If the entire share capital of the Corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of the Government.

2. Extent of Financial Assistance from the State - Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character.

3. Monopoly Status Conferred or Protected by the State - Whether the corporation enjoys a monopoly status which is conferred or protected by the State.

4. Existence of Deep and Pervasive State Control - Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or an instrumentality.

5. Public Importance and Governmental Nature of Functions - If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in classifying a corporation as an instrumentality or agency of government.

6. Transfer of Government Department to Corporation - If a department of government is transferred to a corporation, it would be a strong factor supporting an inference of the corporation being an instrumentality or agency of government.

Ans. Doctrine of Severability

• Doctrine of Severability: A law becomes void only to the extent it is inconsistent with the Fundamental Rights under Article 13 of the Constitution.

• Partial Invalidation: The entire law is not invalidated; only the inconsistent part is declared void.

• Severability Condition: The invalid part must be severable from the valid part, and the remaining valid portion must be capable of giving effect to the legislature’s intent.

• If Not Severable: If the valid and invalid parts cannot be separated, then the entire law may be declared void.

• Judicial Clarification: Courts have clarified that the valid part will survive only if it can stand independently and fulfill the legislative purpose.

• Case Law Support: In A.K. Gopalan v. State of Madras (AIR 1950 SC 27), the Supreme Court ruled that if a valid portion is severable, it should be maintained.

• Interpretation of Article 13: It implies that striking down the whole Act is unnecessary if only a portion is invalid and the rest can function independently.

Ans. DOCTRINE OF ECLIPSE

• Doctrine of Eclipse: Under Article 13 of the Constitution of India, a pre-Constitution law that is inconsistent with Fundamental Rights becomes inoperative, but not void ab initio.

• Effect of Inconsistency: Such a law becomes dormant or eclipsed only to the extent of its inconsistency with Fundamental Rights.

• Reactivation by Amendment: If the Constitution is amended and the inconsistency is removed, the eclipsed law becomes active and operative again.

• First Case Application: The doctrine was first applied in Bhikaji Narain Dhakras v. State of M.P., AIR 1955 SC 781.

• Case Facts: The C.P. and Berar Motor Vehicles Amendment Act, 1947 was valid when enacted but became inconsistent after the Constitution came into force, as it violated Article 19(1)(g).

• Restoration via Amendment: The Constitution (First Amendment) Act, 1951 allowed the creation of State monopolies, thus removing the inconsistency.

• Supreme Court's View: The Court held that the law was not wiped out, but merely eclipsed and revived after the constitutional amendment.

• Key Observation: “The impugned law became, as it were, eclipsed... The amendment removed the shadow, making the law free from all infirmity.”

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

Explain it. Refer the relevant Judgements. (June, 19 – 8 Marks)

Ans. Article 14

1. Article 14 of the Indian Constitution
   It states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

2. Two Key Expressions in Article 14

• Equality before the law: Borrowed from English Common Law; implies that no person is above the law, and all are equal before it.

• Equal protection of the laws: Ensures that all persons are treated equally without favouritism or discrimination in the enjoyment of legal rights.

Article 14 Applies to All Persons

• Not limited to citizens; includes foreigners and juristic persons (e.g., companies).

• Example: Chiranjit Lal Chowdhury v. Union of India (AIR 1951 SC 41) confirmed that corporations are also entitled to this right.

Equality as a Basic Feature of the Constitution

• Recognised as a part of the basic structure doctrine.

• Supported by the case Indra Sawhney v. Union of India (AIR 2000 SC 498).

Doctrine of Classification

• Article 14 does not mean uniform application of the same laws to everyone.

• It allows for reasonable classification to treat persons differently based on intelligible differentia and rational nexus to the objective of the law.

Permissible Classification

• The classification must not be arbitrary, artificial, or evasive.

• It should be based on relevant differences between groups that justify differential treatment.

Judicial Interpretation

• In State of Bihar v. Bihar State ‘Plus-2’ Lecturers Association (2008) 7 SCC 231, the Supreme Court reaffirmed:

  • Article 14 permits classification among persons or groups,

  • But prohibits discrimination among equals.

Essence of Article 14

• Prohibits discrimination, not reasonable classification.

• Equal treatment must be given to those who are similarly situated.

Ans. In the case of P. Rajandran, Supreme Court held that for a valid classification, there has to be a rational nexus between the classification made by the law and the object sought to be achieved. A provision for district - wise distribution of seats to the State Medical Colleges on the basis of population of a district to the population of the state was held to be void.

Ans. Article 16(1) and (2) of the Constitution of India lay down provisions for equal opportunity of employment in the public sector. However, there are certain exceptions provided in Article 16(3), 16(4), 16(4A), 16(4B), 16(5) & 16(6). These are as under:

1. Residence Requirement for State Employment – Article 16(3) - Parliament can make a law that in regard to a class or classes of employment or appointment to an office under the Government of a State on a Union Territory, under any local or other authority within the State or Union Territory, residence within that State or Union Territory prior to such employment or appointment shall be an essential qualification. [(Article 16(3)].

2. Reservation for Backward Classes – Article 16(4) - A provision can be made for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. [Article 16(4)].

3. Reservation in Promotions for SC/ST – Article 16(4A) - Parliament can make law for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. [Article 16(4A)].

4. Carrying Forward Unfilled Reserved Vacancies – Article 16(4B) - The State can consider any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. [Article 16(4B)].

5. Religious Qualification for Religious Institutions – Article 16(5) - A law shall not be invalid if it provides that the incumbent of an office in connection with the affair of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. (Article 16(5)].

6. Reservation for Economically Weaker Sections (EWS) – Article 16(6) - Parliament can make law for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category. [Article 16(6)].

Using the exceptions, the government, both at the central and state levels, have reserved government jobs for STs, SCs, OBCs, women and economically weaker section of the unreserved castes. These reservations are part of ‘affirmative action’ policies of the government.

Ans. Article 19(1)(g): Freedom to Practise Any Profession or to Carry on Any Occupation, Trade or Business

1. Constitutional Provision

• Article 19(1)(g) of the Constitution of India provides:

"All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business."

2. Judicial Interpretation

• Courts have focused on social control and social policy when interpreting this Article.

• No rigid rules have been laid down for interpretation.

• Courts interpret terms based on context and circumstances.

3. Meaning of Key Terms (Based on Case Law)

• ‘Trade’:

  • Includes buying and selling, barter, commerce.

  • Also includes skilled work.

  • Defined in The Management of Safdarjung Hospital v. K.S. Sethi (AIR 1970 SC 1407).

  • Has a wide scope.

• ‘Business’:

  • Wider in scope than ‘trade’.

  • Must be understood contextually in each case.

  • Determined using common sense.

• ‘Profession’:

  • Refers to occupations requiring intellectual skill, sometimes coupled with manual skill.

  • Examples: Medicine, Law, Teaching.

4. Reasonable Restrictions under Article 19(6)

• Article 19(6) permits the State to impose reasonable restrictions on the freedom under 19(1)(g).

• These restrictions are valid if made:

  • In the interests of the general public.

  • To prescribe qualifications for professions.

  • To allow State monopoly in any trade or business.

5. Specific Clauses under Article 19(6)

• Clause (i):

  • The State may prescribe professional or technical qualifications required to practise a profession or carry on a trade/business.

• Clause (ii):

  • The State or any corporation owned/controlled by it can carry on any trade, industry or service, to the exclusion of private citizens—either fully or partially.

6. Scope and Nature of Restrictions

• The freedom is not absolute.

• Reasonableness is key to the validity of restrictions.

• While assessing reasonableness, the following are considered:

  • Nature of the business.

  • Conditions prevailing in the specific trade/occupation.

• The term ‘restriction’ includes complete prohibition, if:

  • It serves public interest.

  • It passes the test of reasonableness.

  • Example: Elimination of private dealers may still be valid if justified.

Ans. Article 301 – Freedom of Trade, Commerce and Intercourse

• Part XIII and Article 301:

• Article 301 guarantees freedom of trade, commerce, and intercourse throughout India, subject to Articles 302 to 307.

• This is in addition to the rights under Articles 14 and 19.

• Objective of Article 301:

• Ensures economic unity of India by preventing internal trade barriers.

• Judicial Interpretation – Atiabari Tea Co. Case (AIR 1951 SC 232):

• Only those laws which "directly and immediately" restrict trade fall under Article 301.

• Laws which indirectly or incidentally affect trade are not within its scope.

• Regulatory Laws:

• Laws that facilitate trade are not considered restrictive, even if they regulate trade and commerce.

• Scope of Article 301:

• Applies to both inter-state and intra-state trade.

• Does not apply to foreign trade or trade outside Indian territory.

• Lawful Trade Only Protected:

• Only lawful trading activities are protected under Article 301.

• Gambling and prize competitions are not considered trade (State of Bombay v. RMDC, AIR 1957 SC 699).

Exceptions to the Freedom of Trade and Commerce under Article 301 (Articles 302–305)

The freedom guaranteed by Article 301 is not made absolute and is to be read subject to the following exceptions as provided in Articles 302-305:

1. Parliament to Impose Restriction in the Public Interest

According to Article 302, Parliament may, by law, impose such restrictions on the freedom of trade, commerce and intercourse as may be required in the public interest.

Parliament to make Preference or Discrimination

Parliament cannot by making any law give preference to one State over the other or make discrimination between the States except when it is declared by that law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India [Article 303 (1) and (2)].

Power of the State Legislature

The Legislature of a State may by law:

1. impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and

2. Impose such reasonable restrictions on the freedom of trade, commerce or intercourse within the state as may be required in the public interest.

However, no bill or amendment for making a law falling in provision above can be introduced or moved in the Legislature of a State without the previous sanction of the President. [Article 304]

Saving of Existing Laws

The law which was already in force at the commencement of the Constitution shall not be affected by the provisions of Article 301 except in so far as the President may, by order, otherwise direct (Art 305).

Saving of Laws providing for State Monopoly

The laws which create State monopoly in any trade, etc. are saved from attack under Article 301, i.e., they are valid irrespective of the fact that they directly impede or restrict the freedom of trade and commerce.

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

Right to form associations for unions is also guaranteed so that people are free to have the members entertaining similar views.

This right is also, however, subject to reasonable restrictions which the State may impose in the interests of:

1. The sovereignty and integrity of India, or

2. Public order, or

3. Morality.

A question not yet free from doubt is whether the fundamental right to form association also conveys the freedom to deny to form an association. In the case of Tikaramji v. Uttar Pradesh, AIR 1956 SC 676, the Supreme Court observed that assuming the right to form an association “implies a right not to form an association, it does not follow that the negative right must also be regarded as a fundamental right”.

What are the restrictions on right to freedom of speech and expression under Article 19 of the Constitution of India ? (Dec, 18 – 4 Marks)

Ans. Article 19(2) of the Constitution of India specifies the grounds on which the freedom of speech and expression may be restricted. It enables the Legislature to impose by law reasonable restrictions on the freedom of speech and expression under the following heads:

• Sovereignty and integrity of India

• Security of the State

• Friendly relation with foreign States

• Public Order

• Decency or morality or

• Contempt of Court

• Defamation

• Incitement to an offence

or

Ans. According to Article 20(3) of the Constitution of India, no person accused of any offence shall be compelled to be a witness against himself. In other words, an accused cannot be compelled to state anything which goes against him. But it is to be noted that a person is entitled to this protection, only when all the three conditions are fulfilled:

1. that he must be accused of an offence;

2. that there must be a compulsion to be a witness; and

3. such compulsion should result in his giving evidence against himself

So, if the person was not an accused when he made a statement or the statement was not made as a witness or it was made by him without compulsion and does not result as a statement against himself, then the protection available under this provision does not extend to such person or to such statement.

The ‘right against self-incrimination’ protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. [Selvi v. State of Karnataka, AIR 2010 SC 1974].

Ans. Article 20(3) – Protection Against Self-Incrimination

1. Article 20(3) of the Constitution of India:

   • States that no person accused of any offence shall be compelled to be a witness against himself.

   • This provides the right against self-incrimination.

2. Conditions for Protection:
   Protection under Article 20(3) is available only when all three conditions are fulfilled:

(i) The person must be accused of an offence.

(ii) There must be compulsion to be a witness.

(iii) The compulsion must result in giving evidence against oneself.

When Protection Does Not Apply:

1. If the person was not accused at the time of the statement, or

2. If the statement was made without compulsion, or

3. If it does not incriminate the person,
   then Article 20(3) does not apply.

1. Extension of Protection:

   • The right protects both accused persons and suspects in criminal cases.

   • It also applies to witnesses who fear that their statements might lead to criminal charges against them.

2. Selvi v. State of Karnataka (AIR 2010 SC 1974):

   • The Supreme Court held that forcible narco-analysis, brain-mapping, or polygraph tests without consent violate Article 20(3).

3. Application in Mahendra’s Case:

   • The investigating authority’s attempt to conduct narco-analysis without Mahendra’s consent would be a violation of his fundamental right under Article 20(3).

4. Availability of Right:

   • This protection is available to all persons, whether citizens or non-citizens.

Ans. Parliament has the power to make a law for preventive detention for reasons connected with defence, foreign affairs or the security of India. Parliament and State Legislatures are both entitled to pass a law of preventive detention for reasons connected with the security of State, the maintenance of public order, or the maintenance of supplies and services essential to the community.

Safeguards against Preventive Detention

Article 22 (amended by the 44th Constitution Amendment Act, 1978) contains following safeguards against preventive detention:

1. such a person cannot be detained for a longer period than three months unless:

1. An Advisory Board constituted of persons who are or have been or are qualified to be High Court judges has reported, before the expiration of the said period of three months that there is, in its opinion sufficient cause for such detention.

2. Parliament may by law prescribe the maximum period for which any person may any class or classes of cases be detained under any law providing for preventive detention and the procedure to be followed by an Advisory Board.

The authority ordering the detention of a person under the preventive detention law shall:

1. communicate to him, as soon as may be, the grounds on which the order for his detention has been made, and

2. afford him the earliest opportunity of making the representation against the order.

It may, however, be noted that while the grounds for making the order are to be supplied, the authority making such order is not bound to disclose those facts which it considers to be against the public interest.

Ans. Article 20(1) – Protection Against Ex-Post Facto Laws

1. Article 20(1) of the Constitution of India:

   • No person shall be convicted of any offence except for the violation of a law in force at the time of the act.

   • No person shall be subjected to a penalty greater than that prescribed at the time of the offence.

2. Ex-Post Facto Law:

   • Refers to laws that punish acts retrospectively, i.e., acts that were not offences when committed.

3. Protection Against Retrospective Criminal Laws:

   • A person cannot be convicted under a law that retrospectively declares an act to be an offence.

   • Punishment for an offence cannot be increased with retrospective effect.

4. Illustration – Vijay’s Case:

   • In 2015, the punishment for dacoity was 10 years imprisonment.

   • Vijay committed dacoity in 2015.

   • A later law increasing punishment to life imprisonment cannot apply to Vijay, as retrospective increase in punishment is barred by Article 20(1).

Ans.

1. Article 21 of the Constitution of India:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Meaning of 'Procedure Established by Law':

It refers to the procedure laid down by a statute or law made by the State.

Three requirements must be met:
(i) There must be a law justifying the deprivation.
(ii) The law must be valid.
(iii) The procedure prescribed must be strictly followed.

Judicial Interpretations

1. A.K. Gopalan v. State of Madras (AIR 1950 SC 27):

• Initially interpreted that any legislated procedure was sufficient to deprive personal liberty.

1. Maneka Gandhi v. Union of India (AIR 1978 SC 49):

• Overruled the earlier view.

• Held that the procedure must also satisfy the tests of Article 14 (equality) and Article 19 (freedoms).

• The procedure must be fair, just, and reasonable — not arbitrary, fanciful, or oppressive.

  1. Extension in Later Cases: - In Bachan Singh v. State of Punjab (AIR 1980 SC 898), the Court reiterated that Article 21 allows deprivation of life or liberty only through a valid law and fair procedure.

  2. Key Principle:

Right to life and personal liberty can only be curtailed by a valid, fair, just, and reasonable law, ensuring protection under Articles 14, 19, and 21 collectively.

Ans. Fundamental Rights against exploitation under the Constitution of India are provided in Article 23 and 24. They are described as under:

Prohibition of traffic in human beings and forced labour – Article 23

a) Article 23 of the Constitution of India:

• Imposes a ban on traffic in human beings, begar, and other forms of forced labour.

• Violation of this Article is punishable by law.

b) Meaning of Terms:

• Traffic in human beings: Dealing in men, women, and children like goods (e.g., selling or exploiting them).

• Begar: Compulsory or involuntary work without payment.

c) Fundamental Right Violation:

• Any person forced to work without consent or without payment can file a complaint under Article 23.

• Even forced labour with payment can be challenged if done against one’s will.

d) State-Imposed Compulsory Service:

• The State may impose compulsory service for public purposes (e.g., military service, social service).

• However, there must be no discrimination based on religion, race, caste, or class (as per Clause 2 of Article 23).

1. Historical Context – Zamindari System:

   • Under the old system, tenants were forced to serve landlords without payment, known as begar, which is now unconstitutional.

2. Modern Implications:

   • Citizens are free to choose employment.

   • Minimum wages must be paid as per government regulations.

3. Judicial Recognition – Gaurav Jain v. Union of India (AIR 1997 SC 3021):

The Supreme Court affirmed the rights of children of prostitutes to equality, dignity, protection, and rehabilitation, enabling them to integrate into mainstream society.

Prohibition of employment of children

Article 24 prohibits the employment of children below the age of fourteen in any factory or mine. The Factories Act, 1948; The Mines Act, 1952; The Apprentices’ Act, 1961; and the Child & Adolescent Labour (Prohibition and Regulation) Act, 1986 are some of the important enactments in the statute book to protect the children from exploitation by unscrupulous employers. The Supreme Court has issued detailed guidelines as to child labour in M.C. Mehta v. State of T.N., AIR 1993 S.C. 699.

Ans. Under the following circumstances the Parliament is authorised to make Laws on the subjects enumerated in the State List –

1. In the National Interest (Article 249) - Parliament can make a law with respect to a matter enumerated in the State List if the Council of States declares by a resolution supported by two-thirds of its members present and voting, that it is necessary or expedient in the national interest that Parliament should make a law on that matter. By such declaration Parliament gets the authority to legislate on that matter for the whole or part of the country so long as the resolution of the Council of States remains in force. But such resolution shall remain in force for a period not exceeding one year.

2. During a proclamation of emergency (Article 250) - While a Proclamation of Emergency is in operation, Article 250 of the Constitution of India removes restrictions on the legislative authority of the Union Legislature in relation to the subjects enumerated in the State List. Thus, during emergency, Parliament shall have power to make laws for the whole or any part of the territory of India with respect to all matters in the State List.

3. Breakdown of Constitutional Machinery in a State (Article 356 and 357) - In case the Governor of a State reports to the President, or if he is otherwise satisfied that the Government of a State cannot be carried on according to the provisions of the Constitution, then he (President) can make a proclamation to that effect. By that proclamation, he can assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State, and declare that the powers of Legislature of that State shall vest in Parliament.

4. On the request of two or more States (Article 252) - Article 252 of the Constitution enumerates the power of Parliament to legislate for state. The exercise of such power is conditional upon an agreement between two or more States requesting Parliament to legislate for them on a specified subject

5. Legislation for enforcing international agreements (Article 253) - Parliament has exclusive power with respect to foreign affairs and entering into treaties and agreements with foreign countries and implementing of treaties and agreements and conventions with foreign countries. But a treaty or agreement concluded with another country may require national implementation and for that purpose a law may be needed. To meet such difficulties, the Constitution authorises the Parliament to make law on any subject included in any list to implement:

   1. any treaty, agreement or convention with any other country or countries, or

   2. any decision made at any international conference, association or other body.

Ans. Remedy Available to Raj’s Family under the Indian Constitution

1. Nature of the Wrong

• Raj has been wrongfully detained by Yogesh, a police officer.

• Such detention amounts to a violation of the fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India.

2. Appropriate Constitutional Remedy – Writ of Habeas Corpus

• The most effective remedy in cases of illegal detention is the writ of Habeas Corpus.

• The term Habeas Corpus literally means “to have the body.”

• This writ is an effective safeguard against arbitrary and unlawful detention.

3. Who Can File the Writ

• The petition for Habeas Corpus may be filed by:

  • The detained person himself, or

  • Any person acting on his behalf, including family members, friends, or well-wishers.

• Therefore, Raj’s family is legally competent to file the petition.

4. Constitutional Provisions

• Article 32:

  • Provides the right to move the Supreme Court for enforcement of fundamental rights.

• Article 226:

  • Empowers the High Courts to issue writs, including Habeas Corpus.

• Upon a prima facie case, the Court issues a rule nisi directing the detaining authority to:

  • Produce Raj before the Court, and

  • Justify the grounds of detention.

5. Effect of the Writ

• If the detention is found to be without legal justification:

  • The Court will order Raj’s immediate release.

• Non-compliance with the writ:

  • Amounts to contempt of court under the Contempt of Courts Act.

• An appeal may lie to the Supreme Court under Articles 132, 134, or 136.

6. Conclusion

• Since Raj has been wrongfully detained by a police officer:

  • His family can file a writ of Habeas Corpus in the High Court or Supreme Court.

• This writ serves as a constitutional protection of personal liberty and ensures that no person is deprived of liberty except according to procedure established by law.

So, Raj’s family can seek the issuance of a writ of Habeas Corpus under Articles 32 or 226 of the Constitution of India for his production before the Court and his release, as his detention by Yogesh is illegal

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

1. the office is public and of a substantive nature,

2. created by statute or by the Constitution itself, and

3. the respondent has asserted his claim to the office. It can be issued even though he has not assumed the charge of the office.

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

Patel, a resident of Ward 12, decides to take legal action. He wants to file a writ petition in the Madhya Pradesh High Court to compel the Municipal Corporation to fulfill its statutory duty of providing clean drinking water to the residents of Ward12. What type of writ Patel can file with the High Court in this case ? Discuss and give reasons for your conclusions. (Dec, 24 – 5 Marks)

Ans. Writ of Mandamus

1. Meaning of Mandamus:

   • The word ‘Mandamus’ means “we command”.

   • It is a writ issued to direct a person, corporation, inferior court, or government to perform a public duty they are legally bound to do.

2. Purpose of the Writ:

   • Used to enforce public duties and ensure authorities act within their powers.

   • Unlike certiorari or prohibition (used when jurisdiction is wrongly exercised), mandamus is used when an authority fails to act.

3. Applicability:

   • Can be issued against any public authority including government officers, corporations, and tribunals.

   • Cannot be issued against the President or Governor (Article 361).

   • Not issued against private individuals, except when there's state collusion in violating a law.

4. Conditions for Issuance:

   • The petitioner must have a legal right to demand performance of a legal duty.

   • Cannot be issued if the duty involves discretion.

   • Alternative remedy must be exhausted unless fundamental rights are violated.

5. Constitutional Basis:

   • Article 226 (High Courts) and Article 32 (Supreme Court) empower courts to issue the writ of mandamus.

6. Judicial Support:

   • In State of Maharashtra v. M.P. Vashi (1995), the Court held that Directive Principles can also be enforced via mandamus in appropriate cases.

7. Case Example – Indore Municipal Corporation:

   • The Corporation failed to provide clean drinking water to Ward 12 residents, violating its statutory duty under the M.P. Municipal Corporation Act, 1956.

   • Mr. Patel can file a writ petition for mandamus to compel the Corporation to fulfil its obligation and protect the residents' right to clean water.

Ans.

Limitation and the Constitution of India – Key Points

1. Entry 13, List III – Constitution of India

   • Limitation is covered under Entry 13 of List III (Concurrent List).

   • Both Parliament and State Legislatures can make laws on limitation.

2. Legislature’s Power to Enact Limitation Laws

   • The Legislature can:

     • Prescribe time limits within which legal actions must be brought.

     • Shorten or extend existing limitation periods.

   • This is constitutional provided a reasonable time is given for enforcement of existing rights.

3. Prospective Application of Limitation Law

   • Statutes of Limitation apply prospectively to future causes of action.

   • They act as a shield, not a weapon of offence.

4. No Hindrance to Fundamental Rights under Article 32

   • The State cannot impose limitation on the right to approach the Supreme Court under Article 32.

   • Any such law could be challenged under Article 13(2) as unconstitutional.

5. Judicial Precedent: Tilokchand Motichand v. H.P. Munshi (AIR 1970 SC 898)

   • Reinforces that legislative actions cannot curb enforcement of Fundamental Rights.

   • If right to property is extinguished under Limitation Act (Section 27), no right remains to enforce under Article 32.

6. Limitation Act & Constitutional Remedies

   • Limitation Act does not expressly apply to writ petitions under Articles 32 or 226.

   • However, courts apply it by analogy and may deny relief if there is inordinate delay.

7. Judicial Precedent: State of M.P. v. Bhai Lal Bhai (AIR 1964 SC 1006)

   • When a writ remedy corresponds to a suit remedy (which has a limitation period), the court may apply similar limitation principles in writ cases.

8. Public Policy Against Stale Claims

   • Even if the right is not extinguished, courts may reject delayed claims on grounds of public policy.

‘‘Post and telegraphs, telephones, wireless broadcasting and other like forms of communication’’ and therefore, the State Legislature was not competent to pass it. Examine the proposition in the light of ‘‘Pith and Substance Rule’’ referring the case law on this point. (Dec, 19 -5 Marks)

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

Acting on Entry 6 of List II of the Constitution of India which reads — Public Health and Sanitation, Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was challenged on the Schedule VII, entry 31 of List I of the Constitution of India deals with "Post and telegraphs, telephones, wireless broadcasting and other like forms of communication, and, therefore, the State Legislature was not competent to pass it.

The Supreme Court rejected this argument on the ground that the object of the law was to prohibit unnecessary noise affecting the health of public and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was – public health and not – broadcasting (G. Chawla v. State of Rajasthan, AIR 1959 SC 544).

Ans. Fundamental Duties under Article 51A of the Constitution of India

1. Introduction:

• The Fundamental Duties were added to the Constitution by the 42nd Constitutional Amendment Act, 1976, upon the recommendation of the Swaran Singh Committee.

• These duties are enshrined in Article 51A under Part IV-A of the Constitution.

• They apply only to citizens of India and serve as a moral obligation to promote national spirit and discipline.

List of Fundamental Duties (Clauses a to j and k)

Every citizen of India shall:

(a) Abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
(b) Cherish and follow the noble ideals that inspired our national struggle for freedom.
(c) Uphold and protect the sovereignty, unity and integrity of India.
(d) Defend the country and render national service when called upon to do so.
(e) Promote harmony and spirit of common brotherhood among all people of India and renounce practices derogatory to the dignity of women.
(f) Value and preserve the rich heritage of our composite culture.
(g) Protect and improve the natural environment including forests, lakes, rivers and wildlife and have compassion for living creatures.
(h) Develop scientific temper, humanism and the spirit of inquiry and reform.
(i) Safeguard public property and abjure violence.
(j) Strive towards excellence in all spheres of individual and collective activity.
(k) (Inserted by 86th Amendment Act, 2002): Provide opportunities for education to child/ward between the age of 6 to 14 years.

Enforceability of Fundamental Duties

1. Not Enforceable by Writs:

• Fundamental Duties are non-justiciable, i.e., they are not legally enforceable by courts through writs under Article 32 or Article 226.

• No citizen can be penalised by law merely for not performing these duties unless a specific law provides for such enforcement.

2. Role in Judicial Interpretation:

• Although non-enforceable, courts have referred to Fundamental Duties while interpreting laws or upholding constitutional validity.

• Example: In AIIMS Students’ Union v. AIIMS (2001), the Supreme Court held that Fundamental Duties should not be overlooked and could be used to interpret and restrict Fundamental Rights in the interest of public order or morality.

3. Enforceability through Legislation:

• Parliament or State Legislatures may enact laws to give effect to Fundamental Duties.

  • Example: The Prevention of Insults to National Honour Act, 1971 upholds duty (a).

  • Environment Protection Act, 1986 relates to duty (g).

Conclusion:

While Fundamental Duties are not enforceable by writs, they play a vital constitutional role in guiding citizens’ conduct and legislative intent. The State can make laws to enforce them, and the judiciary can interpret them in public interest while resolving constitutional disputes.

Ans. In the case of Satender Kumar Antil vs. Central Bureau of Investigation and Ors. (11.07.2022 - SC), taking note of the continuous supply of cases seeking bail after filing of the final report on a wrong interpretation of Section 170 of the Code of Criminal Procedure ("the Code"), an endeavour was made by Supreme Court to categorize the types of offenses to be used as guidelines for the future.

The Supreme Court inter alia said that “The principle that bail is the Rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India.”

Further, in this case, the Supreme Court issued certain directions, however they may be subject to State Amendments. These directions are meant for the investigating agencies and also for the courts. The directions are as under:

1. The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

2. The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

3. The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the Accused for grant of bail.

4. All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed Under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.

5. There need not be any insistence of a bail application while considering the application Under Section 88, 170, 204 and 209 of the Code.

6. There needs to be a strict compliance of the mandate laid down in the judgment of this Court in Siddharth (supra).

7. The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

8. The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

9. While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

10. An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.

11. Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

12. All State Governments, Union Territories and High Courts are directed to file affidavits/status reports within a period of four months.

In view of the above mentioned, it can be said that Right to Bail is on the touchstone of Article 21 of Indian Constitution.

Indian Constitution covers the legislative relationship between the Union and State. The Union legislature, i.e., Parliament has the power to make laws for the whole of the territory of India or any part thereof, and the state legislature have the power to make laws for the whole or any part of the territory of the respective State. In distributing the subject on which legislation can be made, the Indian Constitution draws three long lists of all the conceivable legislative subjects. These lists are contained in the 7th schedule to the Constitution. List I is named as the Union List. List II as the State List and III as the Concurrent list. Each list contains a number of entries in which the subjects of legislation have been separately and distinctly mentioned. Legislative function is done by the parliament or state legislature for their respective subjects through passing the bills. Legislature is empowered to make laws but it shall not make any law which takes away or abridges the fundamental rights. It shall be void to the extent to which it curtails any such right. Laws which were in force before the commencement of the Constitution are void to the extent to which they are inconsistent with the fundamental right. In reference to the above statements answer the following questions :

1. Rajasthan Government passed an Act restricting the use of sound amplifiers. The Act is challenged on the ground that it dealt with a matter which fell in entry of list I (Union list) which rcads ‘‘post and telegraphs, telephones, wireless broadcasting and other like forms of communication’’ therefore state cannot make law. Decide with applicable rule. (2 Marks)

2. Explain the term ‘‘judicial review’’ (2 Marks)

3. What do you understand by bill ? (2 Marks)

4. Procedure wise, what are the types of bills. (2 Marks)

5. What does the word ‘law’ include according to Article 13 of the Indian Constitution ? (2 Marks) (June, 24)

Ans. (i) Rule of Pith and Substance - The facts of the given situation are similar to the case of G. Chawla v. State of Rajasthan, AIR 1959 SC 544. The Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was challenged on the ground that it dealt with a matter which fell in entry 31 of List I which reads: “Post and telegraphs, telephones, wireless broadcasting and other like forms of communication”, and, therefore, the State Legislature was not competent to pass it. The Supreme Court rejected this argument on the ground that the object of the law was to prohibit unnecessary noise affecting the health of public and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was “public health” and not “broadcasting”.

Therefore, in the given situation, the pith and substance rule can be applied. According to this rule, where a law in reality and substance falls within an entry on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of legislature.

(ii) Judicial review - Judicial review is the authority of Courts to declare void the acts of the legislature and executive if they are found in violation of provisions under Part-III of the Constitution of India. Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agencies within that jurisdiction.

(iii) Bill - A Bill is a draft statute which becomes law after it is passed by both the house of parliament or State legislature and assented to by the President or Governor. All legislative proposals are brought before parliament or State legislature in the forms of Bills.

(iv) Types of Bills - Procedurally, the Bills can be classified as:

1. Ordinary Bills

2. Money and Financial Bills

3. Ordinance Replacing Bill and

4. Constitution Amendment Bills.

1. Definition of Law - The word ‘law’ according to the definition given in Article 13 of the Constitution includes - “any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India, the force of law.”

The Constitution of India makes two-fold distribution of legislative powers – (I) with respect to territory; and (2) with respect to subject matter.

As regards territory, Article 245(1) provides that subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India. According to clause (2) of Article 245, a law made by Parliament shall not be deemed to be invalid on the ground that it has extra-territorial operation, i.e., takes effect outside the territory of India.

Our Constitution-makers have followed the Canadian scheme opting for a strong Centre. However, they added one more List—the Concurrent List. The Government of India Act, 1935, introduced a scheme of three-fold enumeration, viz., Federal, Provincial and Concurrent.

The present Constitution adopts the method followed by the Government of India Act, 1935, and divides the powers between the Union and the States in three Lists— Union List, the State List and the Concurrent List.

Article 246 is related to subject-matter of law-making power of Parliament and State Legislatures. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List-I in the Seventh Schedule. Parliament, subject to clause (I) and Legislature to any State, have power to make laws with respect to any of the matters enumerated in List-III in the Seventh Schedule. Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule. However, our Constitution makes a few exceptions to this general rule by authorising Parliament to make law even on the subjects enumerated in the State List.

As it is seen that the powers between the Centre and States are divided and they cannot make laws outside their allotted subjects. It is also true that a scientific division is not possible and questions constantly arise whether a particular subject falls in the sphere of one or the other government. This duty in the federal Constitution is vested in the Supreme Court of India. The Supreme Court has evolved various principles of interpretation in order to determine the respective power of the Union and the States under the three Lists.

In reference to the above statements answer the following questions :

1. ‘It is almost a universal rule in all the Constitutions, where distribution of legislative powers is provided, that in the concurrent field the Central law prevails, if it conflicts with a State law.’ However, our Constitution recognizes an exception to this general or universal rule. Discuss. (2 marks)

2. A newspaper was published and printed at Bangalore in Karnataka State. It contained crossword puzzles and engaged in prize competitions. It had wide circulation in the State of Maharashtra and most of its activities such as the standing invitations, the filling up of the forms and the payment of money took place within that State. The State of Maharashtra imposed a tax on the newspaper. The publishers challenged the validity of the law on the ground that it was invalid in so far as it covered a subject matter falling beyond the territory of that State, because the paper was published in another State. Discuss the validity of the actions of the State of Maharashtra referring to the case law. (2 marks)

3. On a particular item included in the State List, the States of Haryana and Rajasthan requested the Parliament to make laws for them on that particular subject. Discuss the legality of this statement referring to the relevant Article of the Constitution of India. What happens, if any of the consenting States later makes a law on that particular subject. (2 marks)

4. Discuss the principle of harmonious construction in the interpretation of legislative lists under the Indian Constitution. (2 marks)

5. If it is necessary or expedient in the national interest that Parliament should make a law on a matter enumerated in the State List, can Parliament do so? Explain. (2 marks) (June, 25)

Ans.

1. Exception to the Doctrine of Repugnancy - Article 254(2) of the Constitution of India provides an exception to the general rule of repugnancy in the Concurrent List. It states that where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.

However, nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

Doctrine of Territorial Nexus and Extraterritorial Operation of State Laws – A State Legislature may make laws that have extraterritorial operation only if there exists a “territorial nexus” between the State and the subject matter of the legislation. That is, if there is sufficient nexus or connection between the State and the subject matter of the law which falls beyond the territory of the State, the law will be valid. The sufficiency of the nexus is to be seen on the basis of the test laid down by the Supreme Court in the State of Bombay v. R.M.D.C., A.I.R.1957 S.C. 699, according to which two conditions, must be fulfilled:

1. the connection must be real and not illusory; and

2. the liability sought to be imposed by that law must be pertinent to that connection.

If both the conditions are fulfilled by a law simultaneously then only it is valid otherwise not.

In the given situation, applying the doctrine laid down in State of Bombay v. R.M.D.C. (AIR 1957 SC 699), the Maharashtra law is valid as the majority of the newspaper’s activities such as revenue generation and participation in competitions took place within Maharashtra, thereby establishing a sufficient territorial nexus.

Parliament’s Power to Legislate for States by Consent (Article 252) - Article 252 of the Constitution of India enumerates the Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State. This Article provides that, if two or more States are desirous that on any particular item included in the State List there should be a common legislation applicable to all such States then they can make a request to Parliament to make such law on that particular subject.

Such request shall be made by passing a resolution in the legislatures of the State concerned. If request is made in that form, then Parliament can make law on that subject as regards those States. The law so made may be adopted by other States also, by passing resolutions in their legislatures.

According to Article 252(2), any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.

Therefore, if a consenting State subsequently enacts a conflicting law on the same subject, such a State law would not be valid to the extent of inconsistency with the law made by the parliament.

Doctrine of Harmonious Construction in Distribution of Legislative Powers – The position in the Indian Constitution is different from other Federal Constitutions in respect of distribution of legislative powers. There is no clear-cut division of powers between the Union and States. Thus, in case of conflict, the judiciary has to make reconciliation attempts between the conflicting entries. Different entries in the different lists are to be interpreted in such a way that a conflict between them is avoided and each of them is given effect.

It must be accepted that the Constitution does not want to create conflict and make any entry nugatory. Therefore, whenever there appears a conflict between the two entries in two different lists, it is the court’s duty to reconcile entries and to bring harmony between them, so that each of them is given effect and, for that purpose the scope and meaning of one may be restricted so as to give meaning to the other also. This can be achieved by applying the principle of harmonious construction in such cases.

Parliament’s Power to Legislate on State List in National Interest (Article 249) - According to Article 249 of the Constitution of India, Parliament can make a law with respect to a matter enumerated in the State List if the Council of States declares by a resolution supported by two-thirds of its members present and voting, that it is necessary or expedient in the national interest that Parliament should make a law on that matter. By such declaration Parliament gets the authority to legislate on that matter for the whole or part of the country so long as the resolution of the Council of States remains in force. But such resolution shall remain in force for a period not exceeding one year. However, a fresh resolution can be passed at the end of one year to give extended lease to the law of Parliament and that way the law of Parliament can be continued to remain in force for any number of years.

The laws passed by Parliament under the provision cease to have effect automatically after 6 months of the expiry of the resolution period. Beyond that date, such Parliamentary law becomes inoperative except as regards the thing done or omitted to be done before the expiry of that law.

Ans. Interpretation of a Statute by a Judge

1. Interpretation, Not Innovation:

• A judge must not rewrite or change the substance (“material”) of a statute, but can interpret it to remove ambiguity or inconsistency (“iron out the creases”).

Language is Not Perfect:

• The English language lacks mathematical precision, and statutory drafting cannot foresee every possible situation.

• Hence, minor defects or ambiguities may appear in legislative texts.

Role of the Judge:

• A judge cannot merely blame the draftsman; instead, they must constructively find the legislative intent.

• This involves reading not just the words, but also understanding the social context and mischief to be remedied.

Doctrine of Purposive Construction:

• Judges should interpret the law in a way that advances its purpose and gives effect to the intended remedy, without overstepping into the domain of law-making.

Metaphorical Meaning:

• The metaphor means that a judge respects the statute’s framework but smooths out flaws to uphold justice and legislative intent.

Ans. Object of Interpretation

1. Primary Aim:

   • The object of interpretation is to discover the intention of the author of a written document, typically the legislature in the case of statutes.

2. Interpretation of Written Documents:

   • As per Halsbury’s Laws of England, a written document is considered a declaration of the author’s mind.

   • The interpretation must be as close as possible to the actual and apparent intention of the author, within the limits permitted by law.

3. Understanding Legislative Intent:

   • The words of a statute are interpreted to understand the intention of the legislature.

   • This is done through the natural and grammatical meaning of the words used.

4. Salmond’s View:

   • Salmond defines interpretation as the process by which courts ascertain the legislative meaning through the authoritative language of the statute.

Functions of the Courts in Interpretation

1. Ascertainment of Meaning:

   • The Court’s function is to determine what the parties or legislature meant by the words used, not what they intended but failed to express.

2. No Substitution of Presumed Intention:

   • Courts must not guess or presume the intention of the parties or legislature.

   • Only the expressed meaning of the words should be given effect, as it is taken to be equivalent to the actual intention.

3. Application of Rules of Construction:

   • Ordinary rules of interpretation must be followed, even if this sometimes defeats the real intention.

   • This ensures greater certainty and consistency in the administration of law.

Ans. Heydon’s rule of Interpretation of Statutes

In Heydon’s Case, in [1584], it was resolved by the Barons of the Exchequer that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law) four things are to be discerned and considered:

1. What was the Common Law before the making of the Act;

2. What was the mischief and defect for which the Common Law did not provide;

3. What remedy the Parliament had resolved and appointed to cure the disease of the Commonwealth; and

4. The true reason of the remedy.

Although judges are unlikely to propound formally in their judgments the four questions in Heydon’s Case, consideration of the “mischief” or “object” of the enactment is common and will often provide the solution to a problem of interpretation. Therefore, when the material words are capable of bearing two or more constructions, the most firmly established rule for construction of such words is the rule laid down in Heydon’s case which has “now attained the status of a classic”. The rule directs that the Courts must adopt that construction which “shall suppress the mischief and advance the remedy”. But this does not mean that a construction should be adopted which ignores the plain natural meaning of the words or disregard the context and the collection in which they occur.

Ans. Expressio Unis Est Exclusio Alterius

1. Meaning of the Maxim:

   • The rule implies that the express mention of one thing in a statute means that what is not mentioned is excluded.

2. General Words Must Be Broadly Construed:

   • Despite the maxim, general words in a statute should be given their natural and wide meaning, unless there is a clear reason in the statute to limit them.

3. Caution in Applying the Maxim:

   • Many provisions are included ex abundanti cautela (out of abundant caution), so the absence of mention does not always mean intentional exclusion.

4. Possible Drafting Oversights:

   • Incomplete expression (expressio) may occur by accident.

   • Omission (exclusio) may result from inadvertence, not from a deliberate legislative intention.

5. Avoid Injustice or Inconsistency -

   • The maxim should not be applied if it leads to inconsistency, inequity, or injustice.

6. Inapplicability to Clear Language:

   • If the language of the statute is plain and unambiguous, the maxim cannot be used to infer exclusions.

   • Case reference: Parbhani Transport Co-operative Society Ltd. v. Regional Transport Authority, AIR 1960 SC 801.

Ans. Rule of Reasonable Construction

1. Basic Principle – Ut Res Magis Valeat Quam Pereat:

   • Words of a statute should be interpreted so as to give effect to the statute rather than render it nugatory or meaningless.

   • Interpretation must make sense and align with common sense and natural meaning of the words.

2. Duty of the Court:

   • The Court must aim to give effect to the intention of the legislature.

   • Literal interpretation may be departed from if it defeats the purpose of the law, especially in penal statutes aimed at suppressing a mischief.

3. Departing from Literal or Dictionary Meaning:

   • Courts may deviate from dictionary meanings if such meanings defeat the object of the Act.

   • The adopted interpretation should advance the remedy and suppress the mischief, without resorting to conjecture or guesswork.

4. Avoiding Absurd or Unjust Results:

   • If literal interpretation leads to:

     • Contradiction of legislative intent, or

     • Inconvenience, absurdity, hardship, or injustice,
       the Court may modify the meaning or even the sentence structure to reflect true intent.

     • Case reference: Tirath Singh v. Bachittar Singh, AIR 1955 SC 830.

5. Construction Must Align with Legislative Policy:

   • Courts should adopt a construction that reflects the policy and object of the legislation.

     • Case reference: Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

Ans: Beneficial Construction

1. Meaning and Purpose:

   • Beneficial construction means giving the widest and most liberal interpretation to a statute to fulfill its objective.

   • When multiple interpretations are possible, the one that provides relief and protects benefits intended by the law should be adopted.

2. Legislative Intent:

   • The statute must be construed in a manner that realizes the purpose and intention of the legislature.

   • The aim is to suppress the mischief and advance the remedy provided by the statute.

3. Focus on Social Justice:

   • Beneficial construction has been instrumental in interpreting socio-economic laws aimed at promoting justice and welfare.

4. Support for Backward Classes:

   • This approach has encouraged legislation in favor of socially and economically backward classes in India, ensuring they receive the intended benefits.

Ans. Ejusdem Generis, literally means “of the same kind or species”.

Ejusdem generis rule is that, where there are general words following particular and specific words, the general words following particular and specific words must be confined to things of the same kind as those specified, unless there is a clear manifestation of a contrary purpose. It is merely a rule of construction to aid the Courts to find out the true intention of the Legislature (Jage Ram v. State of Haryana, A.I.R. 1971 S.C. 1033). To apply the rule the following conditions must exist:

1. The statute contains an enumeration by specific words,

2. The members of the enumeration constitute a class,

3. The class is not exhausted by the enumeration,

4. A general term follows the enumeration,

5. There is a distinct genus which comprises more than one species, and

6. There is no clearly manifested intent that the general term be given a broader meaning that the doctrine requires. (See Thakura Singh v. Revenue Minister, AIR 1965 J & K 102)

In short, the rule of ejusdem generis must be applied with great caution because, it implies a departure from the natural meaning of words, in order to give them a meaning or supposed intention of the legislature. The rule must be controlled by the fundamental rule that statutes must be construed so as to carry out the object sought to be accomplished. The rule requires that specific words are all of one genus, in which case, the general words may be presumed to be restricted to that genus.

or

Ans. The expression “presumption” in interpretation would mean that while interpreting a statute or any provision thereof; the courts must deem certain things to be true and correct. In other words, the court must proceed to interpret with the conception of correctness of certain things. Presumptions are guidelines used by the courts in process of interpretation. However, they are only used if there are any ambiguities in language but sometimes even if there are no ambiguities it can be used by the judges.

Where the meaning of the statute is clear, there is no need for presumptions. But if the intention of the legislature is not clear, there are number of presumptions. These are:

a) Precision in Language - The words in a statute are presumed to be used precisely and not loosely or casually.

b) Protection of Vested Rights - Vested rights (those existing at the time a statute is enacted) are not taken away without express words, necessary implication, or just compensation.

c) Presumption of Mens Rea in Criminal Law - There is a strong presumption that a criminal statute requires the presence of mens rea (guilty mind) before liability is imposed.

d) State Not Bound Unless Expressly Stated -The State is not affected by a statute unless the statute explicitly mentions the State as being bound.

e) Harmony with International Law - A statute is presumed to be consistent with International Law. If ambiguity exists, the interpretation that aligns with international law is preferred, though courts cannot strike down a law for violating international norms.

f) Legislature Knows Existing Law - It is presumed that the legislature is aware of the state of the law when enacting new legislation.

g) No Implied Repeal of Existing Law - The legislature is not presumed to alter existing laws unless it does so explicitly or by necessary implication.

h) Legislature Aware of Judicial and Executive Practice - The legislature is assumed to have knowledge of the practices of both the judiciary and the executive while enacting laws.

i) Implied Power to Fulfil Statutory Duties - Where a statute imposes a duty, it also implicitly confers the powers necessary to perform that duty effectively.

j) Legislature Does Not Make Mistakes - It is presumed that the legislature makes no mistakes. Courts will not alter even an obvious error unless correcting a clear drafting mistake where legislative intent is evident.

k) Law Avoids Futility - The law does not compel a person to do something that is futile or fruitless. Legal provisions should not lead to meaningless or ineffective outcomes.

l) Scope and Operation of Legal Fictions - Legal fictions are presumed facts known to be untrue but treated as true for the purpose of achieving justice. Courts assume all underlying facts necessary for the fiction to operate effectively.

m) Delegation of Powers and Duties Together - When powers and duties are interconnected, their delegation is presumed to include both, as they cannot be separated meaningfully.

n) Doctrine of Natural Justice - Courts presume that the legislature, while granting drastic powers, intends those powers to be exercised fairly, in accordance with the principles of natural justice.

Ans. Mischief Rule was enunciated by the Barons of the Exchequer “that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law) four things are to be discerned and considered. They are

1. What was the Common Law before the making of the Act;

2. What was the mischief and defect for which the Common Law did not provide;

3. What remedy the Parliament had resolved and appointed to cure the disease of the Commonwealth; and

4. The true reason of the remedy.

The consideration of the “mischief” or “object” of the enactment is common and will often provide the solution to a problem of interpretation. The rule directs that the Courts must adopt that construction which “shall suppress the mischief and advance the remedy”. But this does not mean that a construction should be adopted which ignores the plain natural meaning of the words or disregard the context and the collection in which they occur.

Ans: Generalia Specialibus Non Derogant

1. Meaning of the Maxim:

   • The Latin maxim "Generalia specialibus non derogant" means general provisions do not override or detract from special provisions.

2. General vs. Special Provisions:

   • When a specific provision exists on a subject, it prevails over a general provision even if both appear in the same statute.

3. Application of the Rule:

   • Courts must apply the rule that special provisions override general ones to ensure that specific intent of the legislature is preserved.

4. Duty to Harmonize:

   • Courts should avoid conflicts between provisions.

   • If two provisions appear to conflict, courts must try to harmonize them rather than let one defeat the other.

5. Reconciliation of Provisions:

   • A provision in one section of a statute should not be used to defeat another unless reconciliation is truly impossible.

6. Rule of Implied Exception:

   • This maxim is also called the rule of implied exception, i.e., the specific provision acts as an exception to the general one.

Ans. Rule of Harmonius Construction

1. Meaning of the Rule:

• When two provisions in a statute appear to be in conflict and cannot be reconciled easily, courts must interpret them in such a way that both can be given effect.

• This approach is known as the rule of harmonious construction.

Objective of the Rule:

• The purpose is to avoid inconsistency or repugnancy within a section or between different sections of the same Act.

• Courts should read the statute as a whole and try to interpret provisions in a manner that maintains the consistency of the entire enactment.

Judicial Duty:

• It is the duty of the courts to avoid any “head-on clash” between two provisions.

• Wherever possible, courts must construct provisions to harmonise, rather than conflict.

Supporting Case Law:

In Raj Krishna v. Binod Kanungo, A.I.R. 1954 S.C. 202 at 203, the Supreme Court emphasized the importance of interpreting potentially conflicting provisions harmoniously to give effect to both.

Application under the Constitution:

• The Supreme Court applied this rule in the case of Venkataramana Devaru v. State of Mysore, A.I.R. 1958 S.C. 255.

• Conflict: Article 25(2)(b) vs Article 26(b) of the Constitution.

  • Article 25(2)(b): Allows the State to make laws for social welfare and reform, including throwing open Hindu religious institutions to all classes.

  • Article 26(b): Gives religious denominations the right to manage their own religious affairs.

• Judgment: The Court held that Article 26(b) is subject to Article 25(2)(b), thus giving effect to both provisions harmoniously.

Ans. Role and Importance of the Preamble in a Statute

1. Conflicting Historical Views:

   • In Mills v. Wilkins (1794) 6 Mad. 62, Lord Hold stated that:

     • "The preamble is not part of the statute."

     • It merely expresses the motives or inducements behind enacting the law.

   • In contrast, another view held that:

     • The preamble is the key to understanding the intention of the legislature and the mischief meant to be remedied.

2. Modern Rule of Interpretation:

   • If the enacting part of the statute is clear and unambiguous, the preamble cannot override, control, or restrict it.

   • However, if the enacting provisions are ambiguous, the preamble can be used to:

     • Explain,

     • Elucidate, and

     • Aid in interpretation.

   • Case reference: Raj Mal v. Harnam Singh, (1928) 9 Lah. 260.

3. Judicial Observation in UK Law:

   • In Powell v. Kempton Park Race Course Co. (1899) AC 143, 157, Lord Halsbury laid down two principles:

     • A preamble can provide useful insight into the object of the statute.

     • But, if the enactment is clear and precise, the preamble cannot limit or override it.

4. Indian Judicial View:

   • In Kashi Prasad v. State, AIR 1967 All. 173 (Allahabad High Court):

     • It was held that the preamble cannot defeat enacting provisions,

     • But it can still act as a guide to interpretation.

5. Supreme Court’s View:

   • In Kamalpura Kochunni v. State of Madras, AIR 1960 SC 1080:

     • The preamble can be legitimately referred to in cases of ambiguity in the statute.

     • It helps in determining the true scope and meaning of words used in the Act.

Ans. Definitions in Statutes

1. Purpose of Definition Clauses:

   • Statutes often contain a definition section to avoid repeating lengthy descriptions throughout the Act.

   • It clarifies the scope and meaning of specific terms used in the statute.

2. Borrowing from Earlier Acts:

   • Sometimes, definitions in a statute are borrowed from earlier Acts.

   • Such borrowed definitions may not appear in the definition section of the new Act but may be found in other provisions of the earlier legislation.

3. Effect of Definitions:

   • When a word is defined in the interpretation or definition clause, prima facie (at first sight), that meaning applies throughout the statute.

   • The definition generally governs the entire statute unless a contrary intention appears.

Types of Definitions:

Restrictive (Exhaustive) Definitions:

• When a word is defined to "mean" something specific:

  • It is restrictive in nature.

  • The meaning is exhaustive — it excludes all other meanings.

  • Example: “X means A, B, and C” → Only A, B, and C are included.

4. Extensive (Inclusive) Definitions:

   • When a word is defined to "include" certain elements:

     • It is extensive in nature.

     • The definition is not exhaustive — it adds to the ordinary meaning.

     • Example: “X includes A and B” → X may also cover other things besides A and B.

5. Combined Definitions – "Means and Includes":

   • When a word is defined as “means and includes”:

     • The definition is exhaustive, despite the use of "includes".

     • It combines a restrictive base with clarifying extensions.

6. Legal Fiction – "Deemed to Include":

   • Definitions like "shall be deemed to include" create a legal fiction.

     • They treat something as included even if it normally isn’t.

     • This form is also extensive and is used to extend coverage artificially.

   • Case reference: Balkrishan v. M. Bhai, AIR 1999 MP 86.

7. Repetition for Emphasis:

   • The phrase “When a word has been defined…that definition governs…” is reiterated to emphasize the general rule of interpretation.

Ans. Illustrations and Explanations in a Statute

1. Illustrations – Nature and Purpose:

   • Illustrations are part of the statute, and they serve to clarify the intention of the legislature.

   • They are helpful tools for understanding the application of the section.

   • However, they cannot override, expand, or restrict the language or scope of the main section.

   • Key Point: The enacting language of the section prevails over any illustration.

2. Limitations of Illustrations:

   • Illustrations are not legally operative.

   • They cannot modify, curtail, or enlarge the ambit of the statutory provision.

   • Their use is explanatory, not authoritative.

3. Explanations – Purpose and Effect:

   • An explanation is appended to a section to clarify the meaning of certain words or provisions within the section.

   • It becomes a part of the statutory provision and has legal force.

4. Interpretation of Explanations:

   • The meaning of an explanation depends on its express language.

   • No presumed intention or theory about its purpose should be adopted unless it flows from the language itself.

   • Case reference: Lalla Ballanmal v. Ahmad Shah, 1918 P.C. 249.

5. Harmonious Reading:

   • An explanation should be read in a way that harmonizes with the main section.

   • It should clarify ambiguities, not widen the scope of the section.

6. Cautionary Explanations:

   • Sometimes, explanations are added ex abundanti cautela (out of abundant caution).

   • Their purpose is to remove unnecessary doubts or allay groundless apprehensions.

Ans. External Aids in Statutory Interpretation

1. Definition and Relevance:

   • External aids are resources outside the Act (unlike preamble or provisions, which are intrinsic aids) used to interpret statutes when the language is ambiguous or unclear.

   • If the statutory language is clear and unambiguous, external aids are not permitted, even if they include sources of codification.

2. Types of Acceptable External Aids:

   • When ambiguity exists, courts may consider:

     • Prior events leading to the Bill,

     • Legislative history including Select Committee reports,

     • Events during the Bill's passage until final enactment,

     • Background material to understand legislative intent.

3. Judicial Position in India:

   • Though the Supreme Court of India follows the English rule of excluding Parliamentary history, it has used it on several occasions to resolve interpretation issues.

   • Select Committee reports may be consulted to understand the context of the law.

4. Use of Dictionaries and Foreign Judgments:

   • If a word is not defined in the statute, standard dictionaries may be referred to for its ordinary meaning.

   • Courts may also use foreign decisions from countries with similar jurisprudence and on statutes in pari materia (similar subject matter).

Few external aids in the interpretation of statutes are:

Parliamentary History - The Supreme Court, enunciated the rule of exclusion of Parliamentary history in the way it is enunciated by English Courts, but on many occasions, the Court used this aid in resolving questions of construction.

Reference to Reports of Committees - The report of a Select Committee or other Committee on whose report an enactment is based, can be looked into "so as to see the background against which the legislation was enacted.

Reference to other Statutes - It has already been stated that a statute must be read as a whole as words are to be understood in their context. Extension of this rule of context, permits reference to other statutes in pari materia, i.e. statutes dealing with the same subject matter or forming part of the same system.

Dictionaries - When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance.

Use of Foreign Decisions - Use of foreign decisions of countries following the same system of jurisprudence as ours and rendered on statutes in pari-materia has been permitted by practice in Indian Courts.

Aims of the Act:

1. To provide a single statute for defining general provisions related to the interpretation of laws.

2. To assist in interpretation of Central Acts and Regulations where specific definitions are absent.

3. To avoid ambiguity and ensure clarity in the application and enforcement of legislation.

4. To offer general principles that guide the construction of statutory language across different enactments.

Objects of the Act:

1. To shorten the language of Central Acts by avoiding repetition of definitions.

2. To maintain uniformity of expression in Central Acts through commonly used defined terms.

3. To lay down convenient rules for the construction and interpretation of statutory provisions.

4. To guard against omissions by incorporating general clauses that apply uniformly to all Central Acts unless the context or subject indicates otherwise.

This Act plays a crucial role in statutory interpretation and is applicable to all Central Acts and Regulations made after its commencement, unless the context indicates otherwise.

Ans. Section 5 of the General Clauses Act, 1897 provides the provisions relating to coming into operation of enactments. It states:

Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent,—

1. in the case of a Central Act made before the commencement of the Constitution, of the Governor-General, and

2. in the case of an Act of Parliament, of the President.

Further, unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. If the date of enactment is not specified under the legislation, it comes into force in accordance with Section 5 of General Clauses Act, 1897.

or

Ans. “Effect of Repeal” [Section 6]: Where any Central legislation or any regulation made after the commencement of this Act repeals any Act made or yet to be made, unless another purpose exists, the repeal shall not:

• Revive anything not enforced or prevailed during the period at which repeal is effected or;

• Affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

• Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

• Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

• Affect any inquiry, litigation or remedy with regard to such claim, privilege, debt or responsibility or any inquiry, litigation or remedy may be initiated, continued or insisted.

In State of Uttar Pradesh v. Hirendra Pal Singh, (2011), 5 SCC 305, SC held that whenever an Act is repealed, it must be considered as if it had never existed. Object of repeal is to obliterate the Act from statutory books, except for certain purposes as provided under Section 6 of the Act.

Ans. “Effect of Repeal” [Section 6]: Where any Central legislation or any regulation made after the commencement of this Act repeals any Act made or yet to be made, unless another purpose exists, the repeal shall not:

• Revive anything not enforced or prevailed during the period at which repeal is effected or;

• Affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

• Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

• Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

• Affect any inquiry, litigation or remedy with regard to such claim, privilege, debt or responsibility or any inquiry, litigation or remedy may be initiated, continued or insisted.

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

The Bharatiya Nyaya Sanhita (BNS) 2023, which came into effect on July 1, 2024, has repealed the Indian Penal Code (IPC), 1860 as the primary criminal law in India. For any offence committed before July 1, 2024, the provisions of the Indian Penal Code shall apply.

Ans. Section 23 of the General Clauses Act provides that where, by any Central Act or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely,-

1. Draft Publication Before Making Rules or Bye-laws - the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby,

2. Manner of Publication - the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the government concerned prescribes;

3. Notice Specifying Date for Consideration - there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;

4. Consideration of Objections or Suggestions - the authority having power to make the rules or bye-laws, and, where the rules, or bye- laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified;

5. Conclusive Proof of Validity through Official Gazette Publication - the publication in the Official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.

Ans. “Provision as to offence punishable under two or more enactments” [Section 26]: Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be punished twice for the same offence.

Double Jeopardy - Article 20(2) of the Constitution states that no person shall be prosecuted and punished for the same offence more than once.

According to the Supreme Court, a plain reading of section 26 shows that there is no bar to the trial or conviction of an offender under two enactments, but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence.

Ans. The Rule of Harmonious Construction is a fundamental principle of statutory and constitutional interpretation. It aims to resolve apparent conflicts between different provisions of a statute or Constitution. The key points are:

1. Resolving Apparent Conflicts:
   When two provisions of a statute appear to be in conflict, they should be interpreted in a way that gives effect to both, rather than rendering one redundant or inoperative.

2. Avoiding Redundancy:
   A construction that makes one provision meaningless or ineffective should not be adopted unless it is absolutely unavoidable.

3. Purposive Interpretation:
   The rule aligns with a broad or purposive approach, ensuring that the intention behind the law is fulfilled while maintaining internal consistency.

4. Constitutional Harmony:
   In constitutional interpretation, no article should be read in isolation. Every provision must be read in harmony with the rest of the Constitution to preserve the overall scheme and purpose.

5. Unity of Legal Framework:
   The principle ensures that the law is interpreted as a cohesive whole and avoids fragmentation or contradictions within the legal system.

Ans. Rule of Beneficial Construction or Mischieve Rule or Purporsive Construction or Heydon’s Rule:

The Rule of Beneficial Construction, also known as the Mischief Rule or Purposive Construction, was laid down in Heydon’s Case (1584). This rule focuses on interpreting statutes in a way that remedies the "mischief" or defect in the previous law. The key points are:

1. Multiple Interpretations:
   Where statutory language is capable of more than one interpretation, this rule helps in choosing the interpretation that best achieves the purpose of the Act.

2. Four Considerations (from Heydon’s Case):
   The court must consider:

(a) What was the law before the Act was passed?

(b) What was the mischief or defect in that law?

(c) What remedy has the legislature provided?

(d) What is the reason for the remedy?

Objective of the Rule:
Courts should adopt that interpretation which suppresses the mischief and advances the remedy intended by the legislature.

3. Extended Meaning Allowed:
   If the ordinary meaning of the words does not fully achieve the legislative intent, a broader meaning may be applied — provided the words are fairly susceptible to it.

4. Larger Sense Over Literal Meaning:
   Where the circumstances justify, courts may interpret the phraseology in a larger sense than the ordinary meaning to fulfill the object of the statute.

5. Application in Public Welfare Laws:
   For laws aimed at public safety or welfare (e.g., Workmen’s Compensation Act, 1923), courts should interpret the provisions liberally to ensure the law’s beneficial objectives are met.

6. Guiding Principle:
   Statutes that require something to be done should be interpreted in a manner that ensures their effective and fair implementation in line with the legislative intent.

Example, a statute which requires notice of action for anything done, are to be construed as including an omission of an act which ought to be done as well as the commission of a wrongful act. Where a statute requires something to be done by a person, it would generally be sufficient compliance with it if the thing is done by another person on his behalf and by his authority, for it would be presumed that the statute does not intend to prevent the application of the general principle of law: ‘qui facit per alium facit per se’ (he who acts though another is deemed to act in person).This would be so unless there is something in either the language or the object of the statute which shows that personal act alone was intended.

Ans. Section 26 – Provision as to Offences Punishable under Two or More Enactments:

1. Same Act as Offence under Multiple Laws:
   If an act or omission constitutes an offence under two or more enactments, the offender can be prosecuted under either or any of those enactments.

2. Bar on Double Punishment:
   The offender shall not be punished twice for the same offence, even if prosecuted under multiple enactments.

3. Supreme Court Clarification (Baliah v. Rangachari, AIR 1969 SC 701):
   The court held that there is no bar on trial or conviction under multiple laws, but there is a bar on double punishment for the same offence.

4. Example – Shikha’s Case:
   Shikha can be prosecuted under both the IPC and the Banking Regulation Act, but she cannot be punished twice for the same offence under both laws.

Section 10 – Computation of Time:

1. Acts to be Done on Certain Day or Within Prescribed Time:
   When a Central Act or Regulation directs an act to be done on a specific day or within a time limit.

2. Office or Court Closed on Last Day:
   If the day prescribed for doing the act or the last day of the prescribed period falls on a day when the office or court is closed.

3. Extension to Next Working Day:
   The act or proceeding shall be deemed to be done in due time if performed on the next day the office or court opens.

This ensures both protection against double punishment and fairness in procedural compliance where deadlines fall on holidays.

Ans. Growth and Origin of Administrative Law

1. Expansion of Government Functions:
   Administrative law emerged as a by-product of the increasing functions of the government beyond just maintaining law and order or protecting from external threats.

2. From Police State to Welfare State:
   The state is no longer confined to its traditional role of a 'police state'. It is evolving into a welfare state aimed at overall social and economic development.

3. Rise in Political Consciousness:
   With rising awareness among citizens, people now expect the state to do more than just offer traditional services like security and justice.

4. Social and Economic Development:
   The state has undertaken the responsibility to improve the living conditions of people, particularly in sectors like health, education, employment, and environmental protection.

5. Complex Problems Need Expanded Administration:
   Development creates new challenges (e.g., pollution, inequality, unemployment) that can only be tackled through an expanded administrative system.

6. Shift from Private to Public Role:
   Many functions earlier managed by private enterprises have now been taken over by the state, requiring administrative machinery and legal frameworks.

7. Need for Regulation and Control:
   The increasing scope and complexity of government activities necessitate rules, procedures, and institutions, which are governed by administrative law.

8. Administrative Law as a Framework:
   Therefore, administrative law has evolved as a means to regulate, control, and guide the ever-growing administrative machinery of the modern state.

Ans: Purpose and Importance of Administrative Law

1. Ensures Legality of Governmental Actions:
   Administrative law ensures that governmental powers are exercised according to law, legal principles, and rules of reason and justice.

2. Protection of Individual Rights:
   A core objective is to protect individuals from misuse or abuse of administrative power.

3. Redressal Mechanism:
   When an individual is aggrieved by administrative action, administrative law provides a way to seek redressal or justice.

4. Harmony Between Governance and Control:
   There is no conflict between having an effective government and controlling administrative powers—both can and must coexist.

5. Wide Exercise of Administrative Powers:
   Administrative powers are exercised by thousands of officials, impacting the lives of millions of people daily.

6. People-Centric Governance:
   Administrative efficiency alone is not sufficient—the interests and rights of the people must be central to all administrative functions.

7. Dual Potential of Administrative Power:

   • If used properly, administrative powers can promote welfare and development.

   • If abused, they can lead to despotism and a totalitarian regime.

Ans. There are four principal sources of administrative law in India:

1. Constitution of India : It is the primary source of administrative law. Article 73 of the Constitution provides that the executive power of the Union shall extend to matters with respect to which the Parliament has power to make laws. Similar powers are provided to States under Article 162. Indian Constitution has not recognized the doctrine of separation of powers in its absolute rigidity.

2. Acts/ Statutes : Acts passed by the central and state governments for the maintenance of peace and order, tax collection, economic and social growth empower the administrative organs to carry on various tasks necessary for it. These Acts list the responsibilities of the administration, limit their power in certain respects and provide for grievance redressal mechanism for the people affected by the administrative action.

3. Ordinances, Administrative directions, Notifications and Circulars : Ordinances are issued when there are unforeseen developments and the legislature is not in session and therefore cannot make laws. Ordinances allow the administration to take necessary steps to deal with such developments. Administrative directions, notifications and circulars are issued by the executive in the exercise of power granted under various Acts.

4. Judicial decisions : Judiciary is the final arbiter in case of any dispute between various wings of government or between the citizen and the administration. In India, we have the supremacy of Constitution and the Supreme Court is vested with the authority to interpret it. The courts through their various decisions on the exercise of power by the administration, the liability of the government in case of breach of contract or tortious acts of Governments servants lay down administrative laws which guide their future conduct.

Ans. Rule of Law

Rule of Law was developed by British Jurist A.V. Dicey. He derived this term from French Principle ‘La principle de legalite’ which means the principle of legality. It states that the government should be governed by Rule of Law instead of Rule of Individual. Any dictator, monarch or one particular person should not govern the functioning of any nation. Each country should follow legality of law.

Three major principles given by Dicey in his book “Rule of Law” are:

1. Supremacy of law: It means that ordinary or regular laws shall remain supreme. Supremacy here means absolute and pre-dominance of regular laws as against arbitrary or wide discretionary powers.

2. Equality before the law: According to Dicey, all classes must be equally subject to the ordinary law of the land as administered by the ordinary law courts. He states that there should be equality between people. According to Dicey, all classes must be equally subject to the ordinary law of the land as administered by the ordinary law courts. It provides that all are equal before law and everyone will be subjected to the same law.

3. The predominance of a legal spirit: Legal Spirit refers to the judicial precedents upon any dispute raised by any individual. The judgment given in any case will be the legal spirit of that particular case. It basically refers to the law as set by the precedents that have evolved over time.

Ans: Judicial Review as a Check on Administrative Action

1. Judicial Review: Definition
   Judicial review is the power of the Courts to declare acts of the legislature and executive void if they violate provisions of the Constitution.

2. Scope of Judicial Review
   It applies to:

   • Legislative actions

   • Executive/administrative actions

3. Authority of Highest Court
   Judicial review is primarily exercised by the highest court in a jurisdiction (e.g., Supreme Court in India) to invalidate unconstitutional acts of any government agency.

4. Scrutiny of Executive Actions
   Courts examine whether an executive act is within the scope of authority/power conferred by law or the Constitution.

5. Doctrine of Ultra Vires
   If the act is found to be ultra vires (i.e., beyond the legal power or authority), it is declared void by the Court.

6. Discretionary Powers and Judicial Caution

   • Courts are not against granting discretionary powers to the executive.

   • However, they expect proper guidelines to be laid down for the exercise of such powers.

7. Court's Role in Preventing Abuse
   Judicial review becomes active when:

   • Discretionary powers are unguided or uncontrolled, or

   • There is misuse or abuse of such discretion.

8. Objective of Judicial Review
   The ultimate aim is to ensure constitutional governance, protect citizens' rights, and prevent arbitrary or unlawful actions by administrative authorities.

Ans. Necessity of Administrative Discretion

1. Inevitable for Government Functioning:
   It is impractical to frame rules for every possible situation in governance. Hence, officials must exercise discretion to deal with varying circumstances.

2. Need for Flexibility:
   Administration today is complex and technical, requiring expertise, adaptability, and practical judgment, which rigid rules cannot offer.

3. Freedom to Choose Best Alternatives:
   Discretion enables officials to select the most suitable course of action from various alternatives, ensuring effective and situation-specific responses.

4. Quick Modification of Unsuitable Rules:
   If a rule proves to be ineffective, the administration can amend or replace it promptly, avoiding unnecessary procedural delays.

5. Checks on Abuse of Discretion:
   While discretion is essential, it must be exercised legally and reasonably. A system of judicial review and legal safeguards is needed to prevent arbitrariness and misuse.

Ans. The decision exercised by administrative authorities are treated as abuse of discretion in the following circumstances:

1. Mala fides : If the discretionary power is exercised by the authority with bad faith or dishonest intention, the action is quashed by the court. Malafide exercise of discretionary power is always bad and taken as abuse of discretion.

2. Irrelevant considerations : If a statute confers power for one purpose, its use for a different purpose is not regarded as a valid exercise of power and is likely to be quashed by the courts. If the administrative authority takes into account factors, circumstances or events wholly irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action is vitiated.

3. Leaving out relevant considerations : The administrative authority exercising the discretionary power is required to take into account all the relevant facts. If it leaves out relevant consideration, its action will be invalid.

4. Arbitrary orders : The order made should be based on facts and cogent reasoning and not on the whims and fancies of the adjudicatory authority.

5. Improper purpose : The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose it will amount to abuse of power.

6. Colourable exercise of power : Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been given but in reality for some other purpose, it is taken as colourable exercise of the discretionary power and it is declared invalid.

7. Non-compliance with procedural requirements and principles of natural justice: If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or directory is decided by the court. Principles of natural justice are also required to be observed.

8. Exceeding jurisdiction : The authority is required to exercise the power within the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void.

Ans. Ans. The courts in India control the exercise of administrative discretion, which can be grouped under two broad heads:

1. Authority has not exercised its discretion properly- ‘abuse of discretion’.

2. Authority is deemed not to have exercised its discretion at all- ‘non-application of mind’.

Abuse of Discretion

1. Mala fides : If the discretionary power is exercised by the authority with bad faith or dishonest intention, the action is quashed by the court. Malafide exercise of discretionary power is always bad and taken as abuse of discretion.

2. Irrelevant considerations : If a statute confers power for one purpose, its use for a different purpose is not regarded as a valid exercise of power and is likely to be quashed by the courts. If the administrative authority takes into account factors, circumstances or events wholly irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action is vitiated.

3. Leaving out relevant considerations : The administrative authority exercising the discretionary power is required to take into account all the relevant facts. If it leaves out relevant consideration, its action will be invalid.

4. Arbitrary orders : The order made should be based on facts and cogent reasoning and not on the whims and fancies of the adjudicatory authority.

5. Improper purpose : The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose it will amount to abuse of power.

6. Colourable exercise of power : Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been given but in reality for some other purpose, it is taken as colourable exercise of the discretionary power and it is declared invalid.

7. Non-compliance with procedural requirements and principles of natural justice: If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or directory is decided by the court. Principles of natural justice are also required to be observed.

8. Exceeding jurisdiction : The authority is required to exercise the power within the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void.

Non-application of mind

1. Acting under dictation: Where the authority exercises its discretionary power under the instructions/dictation from superior authority, in such condition in substance the power is not exercised by it but by the other authority. Such decision or action is bad.

2. Self-restriction: The authority entrusted with discretionary power is required to exercise it after considering the individual cases and should not impose fetters on it discretion by adopting fixed rule of policy to be applied rigidly to all cases coming before it. Such decision or action will be bad.

3. Acting mechanically and without due care: It will render the decision bad in law.

Ans. Rule against bias (nemo judex in causa sua): According to this rule no person should be made a judge in his own cause. Bias means an operative prejudice whether conscious or unconscious in relation to a party or issue. It is a presumption that a person cannot take an objective decision in a case in which he has an interest. The rule against bias has two main aspects- one, that the judge must not have any direct personal stake in the matter at hand and two, there must not be any real likelihood of bias.

Bias can be the following types:

1. Pecuniary Bias

2. Personal Bias

3. Subject matter Bias

or

Ans. Nemo Judex in Causa Sua is Rule against bias. According to the rule against bias, no person should be made a judge in his own cause. Bias means an operative prejudice whether conscious or unconscious in relation to a party or issue. It is a presumption that a person cannot take an objective decision in a case in which he has an interest.

The rule against bias has following two main aspects:

1. that the judge must not have any direct personal stake in the matter at hand.

2. there must not be any real likelihood of bias.

Bias can be of the following three types:

1. Pecuniary bias : The judicial approach is unanimous on the point that any financial interest of the adjudicatory authority in the matter, howsoever small, would vitiate the adjudication. Thus a pecuniary interest, howsoever insufficient, will disqualify a person from acting as a Judge.

2. Personal bias : There are number of situations which may create a personal bias in the Judge’s mind against one party in dispute before him. He may be friend of the party, or related to him through family, professional or business ties. The judge might also be hostile to one of the parties to a case. All these situations create bias either in favour of or against the party and will operate as a disqualification for a person to act as a Judge.

3. Subject matter bias : A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute. To vitiate the decision on the ground of bias as for the subject matter there must be real likelihood of bias.

Ans. Rule against bias (nemo judex in causa sua)

According to this rule no person should be made a judge in his own cause. Bias means an operative prejudice whether conscious or unconscious in relation to a party or issue. It is a presumption that a person cannot take an objective decision in a case in which he has an interest. The rule against bias has two main aspects- one, that the judge must not have any direct personal stake in the matter at hand and two, there must not be any real likelihood of bias.

Bias can be of the following three types:

1. Pecuniary bias: The judicial approach is unanimous on the point that any financial interest of the adjudicatory authority in the matter. Howsoever small, would vitiate the adjudication. Thus, a pecuniary interest, howsoever insufficient, will disqualify a person from acting as a Judge.

2. Personal bias: There are number of situations which may create a personal bias in the Judge’s mind against one party in dispute before him. He may be friend of the party, or related to him through family, professional or business ties. The judge might also be hostile to one of the parties to a case. All these situations create bias either in favour of or against the party and will operate as a disqualification for a person to act as a Judge.

3. Subject matter bias: A judge may have a bias in the subject matter, which means that he himself is a party, or has some direct connection with the litigation. To disqualify on the ground of bias there must be intimate and direct connection between adjudicator and the issues in dispute.

The judicial approach is unanimous on the point that any financial interest of the adjudicatory authority in the matter, however small, would vitiate the adjudication. Thus, a pecuniary interest, however insignificant, will disqualify a person from acting as a judge.

Judge M’s significant financial interest in Moon Pharma Ltd. creates a clear conflict of interest, violating the principle of nemo judex in causa sua and compromising judicial impartiality. Therefore, Judge M should have abstained himself from the case on the basis of the principle of Natural Justice.

Ans. The rule of audi alteram partem is the rule of fair hearing . The principle of natural justice is audi alteram partem (hear the other side) i.e. no one should be condemned unheard. It requires that both sides should be heard before passing the order. This rule implies that a person against whom an order to his prejudice is passed should be given information as to the charges against him and should be given an opportunity to submit his explanation thereto.

Following are the ingredients of the rule of fair hearing:

1. Right to notice : Hearing starts with the notice by the authority concerned to the affected person.

2. Right to present case and evidence

3. Right to rebut adverse evidence

4. Disclosure of evidence

5. Reasoned decision: When the adjudicatory bodies give reasons in support of their decisions, the decisions are treated as reasoned decision.

Ans. Though the normal rule is that a person who is affected by administrative action is entitled to claim natural justice, that requirement may be excluded under certain exceptional circumstances as mentioned below:

1. Statutory Exclusion : The principle of natural justice may be excluded by the statutory provision. Where the statute expressly provides for the observance of the principles of natural justice, the provision is treated as mandatory and the authority is bound by it. Where the statute is silent as to the observance of the principle of natural justice, such silence is taken to imply the observance thereto.

2. Emergency : In exceptional cases of urgency or emergency where prompt and preventive action is required the principles of natural justice need not be observed. However, the determination of the situation requiring the exclusion of the rules of natural justice by the administrative authorities is not final and the court may review such determination.

3. Interim disciplinary action : The rules of natural justice are not attracted in the case of interim disciplinary action.

4. Academic evaluation : Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of pre-decisional hearing is excluded.

5. Impracticability : Where the authority deals with a large number of person it is not practicable to give all of them opportunity of being heard and therefore in such condition the court does not insist on the observance of the rules of natural justice.

1. ‘Vishaka guidelines’ were stipulated by the Supreme Court of India, in Vishaka and others v. State of Rajasthan case in 1997, regarding prevention of sexual harassment at workplace. They acted as precedent for many cases during 1997-2013 until Protection of Women from Sexual Harassment Act, 2013 was enacted.

2. The decision of one High Court may not be binding on other High Court. But the decisions can give a principle which may be helpful for the other High Court. The other High Court may or may not follow the principle of the decision.

(Dec 23 - 5 marks)

Ans. Judicial Precedent means the guidance or authority of past decisions of the courts for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents.

1. In the given situation, it is 'Original precedent' because 'Vishaka guidelines' created and applied a new rule of law regarding prevention of sexual harassment at workplace. It was law for future because its guidelines were applied in future similar cases.

2. In the given situation, it is Persuasive Precedent. A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. For example, in certain circumstances the decision of one High Court may not binding on other High Court but the decisions can give a principle which may be helpful for the other High Court. So these types of decisions will have persuasive value.

Ans. The main features of Statutory Corporations are as under:

• It is incorporated under a Special Act of Parliament or State Legislative Assembly.

• It is an autonomous body and is free from government control in respect of its internal management. However, it is accountable to the Parliament or the state legislature.

• It has a separate legal existence.

• It is managed by the Board of Directors, which is composed of individuals who are trained and experienced in business management. The members of the Board of Directors are nominated by the Government.

• It is supposed to be self sustained in financial matters. However, in case of necessity it may obtain a loan and/or seek assistance from the government.

• The employees of these enterprises are recruited as per their own requirements by following the terms and conditions of recruitment decided by the Board.

Ans. A tort consists of some act or omission done by the defendant whereby he has without just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:

1. Wrongful act : The act complained of, should under the circumstances, be legally wrongful as regards the party complaining. In other words, it should prejudicially affect any of the above mentioned interests, and protected by law. Thus, every person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and right to property are violated without legal excuse, has a right of action against the person who violated them, whether loss results from such violation or not.

2. Legal damages : It is not every damage that is a damage in the eyes of the law. It must be a damage which the law recognizes as such. In other words, there should be legal injury or invasion of the legal right. In the absence of an infringement of a legal right, an action does not lie. Also, where there is infringement of a legal right, an action lies even though no damage may have been caused. As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither identical with actual damage nor is it necessarily pecuniary.

Two maxims, namely: (i) Damnum sine injuria, and (ii) injuria sine damnum, explain this proposition.

Damnum sine injuria

Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means infringement of a right conferred by law on the plaintiff. The maxim means that in a given case, a man may have suffered damage and yet have no action in tort, because the damage is not to an interest protected by the law of torts. Therefore, causing damage, however substantial to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff. Common examples are, where the damage results from an act done in the exercise of legal rights. Thus, if I own a shop and you open a shop in the neighborhood, as a result of which I lose some customers and my profits decline, I cannot sue you for the loss in profits, because you are exercising your legal right. [Gloucester Grammer School case, (1410) Y.B. Hill. 11 Hen, IV to 27, pp. 21,36].

Injuria sine damnum

It means injury without damage, i.e., where there is no resultant damage yet it is an injury or wrong in tort, i.e., where there is infringement of a legal right not resulting in harm but plaintiff can still sue in tort. Some rights or interests are so important that their violation is an actionable tort without proof of damage. Thus when there is an invasion of an “absolute” private right of an individual, there is an injuria and the plaintiff’s action will succeed even if there is no Damnum or damages. An absolute right is one, the violation of which is actionable per se, i.e., without the proof of any damage. Injuria sine damnum covers such cases and action lies when the right is violated even though no damage has occurred. Thus the act of trespassing upon another’s land is actionable even though it has not caused the plaintiff even the slightest harm.

Ans. It is not every damage that is a damage in the eye of law. It must be a damage which the law recognizes or invasion of the legal right. In the absence of an infringement of a legal right an action does not lie. Also, where there is infringement of a legal right, an action lies even though no damage may have causes. Therefore, legal damage is neither identical with actual damage not is it necessarily pecuniary.

Two maxims explain this proposition.

1. Damnum Sine Injuria - This maxim means, a man may have suffered damage and yet have no action in tort, because the damage is not to an interest protected by the law of torts.

Eg. if I own a shop and you open a shop in the neighbourhood, as a result of which I lose some customers and my profits fall off, I cannot sue you for the lose in profits, because you are exercising your legal right.

Injuria Sine Damnum - According to this maxim, where there is no damage resulted yet it is an injury or wrong in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff can still sue in tort.

Eg. The act of the act of trespassing upon another's land is actionable even though it has not caused the plaintiff even the slightest harm.

or

Ans. Damnum sine Injuria - Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means infringement of a right conferred by law on the plaintiff. The maxim means that in a given case, a man may have suffered damage and yet have no action in tort, because the damage is not to an interest protected by the law of torts. Therefore, causing damage, however substantial to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff.

Injuria Sine Damnum - Injuria Sine Damnum means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff can still sue in tort. Some rights or interests are so important that their violation is an actionable tort without proof of damage. Thus when there is an invasion of an “absolute” private right of an individual, there is an injuria and the plaintiff’s action will succeed even if there is no Damnum or damages. An absolute right is one, the violation of which is actionable per se, i.e., without the proof of any damage. Injuria sine damnum covers such cases and action lies when the right is violated even though no damage has occurred.

Ans. The given situation comes in the bracket of Damnum Sine Injuria. Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means infringement of a right conferred by law on the plaintiff. The maxim means that in a given case, a man may have suffered damage and yet have no action in tort, because the damage is not to an interest protected by the law of torts. Therefore, causing damage, however substantial to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff.

In Gloucester Grammar School Case, defendant after leaving Plaintiff’s School where he worked as a teacher, started his own school. Being a teacher of standing, many students of Plaintiff’s school left and enrolled themselves into the defendant’s school. The plaintiff filed a suit for monetary damages incurred by his own. The court held that the defendant is not liable because competition is no ground of action even though monetary loss is caused.

In case of Chasemore v. Richards, 1859, water supply to Plaintiff’s mill was disrupted due to defendant’s digging of his well. This resulted in cutting of water supply to plaintiff’s mill due to which it was shut down. Court held defendant not liable because although monetary losses were incurred there was no violation of legal right.

In view of the above mentioned principle and case laws, it can be said that B is not liable to pay because although monetary might have been incurred but there was no violation of legal right.

Ans. Under the Rule of Strict Liability the defendant is liable even though the harm to the plaintiff occurred without intention or negligence on the defendant’s part. In other words, the defendant is held liable without fault. These cases fall under the following categories:

1. Liability for Inevitable Accident – Such liability arises in cases where damage is done by the escape of dangerous substances brought or kept by anyone upon his land.

2. Liability for Inevitable Mistake – Such cases are where a person interferes with the property or reputation of another.

Vicarious Liability for Wrongs committed by others – Responsibility in such cases is imputed by law on grounds of social policy or expediency. These case involve liability of master for the acts of his servant.

The Rule of Strict Liability was laid down in the case of Ryland v. Fletcher (1868) L.R. 3 H.L. 330. It has been explained that two conditions are necessary in order to apply the rule i.e.

1. Little Escape may cause danger - Escape from a place of which the defendant has occupation or over which he has a control to a place which is outside his occupation or control or something likely to do mischief if it escapes; and

2. Non-natural use of Land : The defendant is liable if he makes a non-natural use of land.

If either of these conditions is absent, the rule of strict liability will not apply.

Ans. The exceptions to the rule of strict liability under Law of Torts are as under:

Damage due to Natural Use of the Land

Things not essentially dangerous which is not unusual for a person to have on his own land, such as water pipe installations in buildings, the working of mines and minerals on land, the lighting of fire in a fire-place of a house, and necessary wiring for supplying electric light, fall under the category of “natural use” of land.

Consent of the plaintiff

Where the plaintiff has consented to the accumulation of the dangerous thing on the defendant’s land, the liability under the rule of Strict Liability in Ryland v. Flethcher does not arise. Such a consent is implied where the source of danger is for the ‘common benefit’ of both.

Act of Third Party

If the harm has been caused due to the act of a stranger, who is neither defendant’s servant nor agent nor the defendant has any control over him, the defendant will not be liable.

Statutory Authority

Sometimes, public bodies storing water, gas, electricity and the like are by statute, exempted from liability so long as they have taken reasonable care.

Act of God

If an escape is caused, through natural causes and without human intervention circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility, there is then said to exist the defence of Act of God.

Escape due to plaintiff’s own Default

Damage by escape due to the plaintiff’s own default was considered to be good

Ans. Strict or Absolute Liability: In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention or negligence on the defendant’s part.

The Rule in Rylands v. Fletcher (1868) L.R. 3 H.L. 330 is that a man acts at his peril and is the insurer of the safety of his neighbour against accidental harm. Such duty is absolute because it is independent of negligence on the part of the defendant or his servants.

The facts of this case were as follows: B, a mill owner employed independent contractors, who were apparently competent to construct a reservoir on his land to provide water for his mill. There were old disused mining shafts under the site of the reservoir which the contractors failed to observe because they were filled with earth. The contractorstherefore, did not block them. When the water was filled in the reservoir, it bursts through the shafts and flooded the plaintiff’s coal mines on the adjoining land. It was found as a fact that B did not know of the shafts and had not been negligent, though the independent contractors, had been, B was held liable.

It was held in this case that the true rule of law is that the person, who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and if, he does not do so is, prima facie answerable for all the damage which is the natural consequence of its escape.

The case of Rylands v. Fletcher establishes a rule of strict liability for those who keep dangerous things on their property that escape and cause damage. However, there are several exceptions to this rule, one of which is the “act of a third party”.

Accordingly, “If the harm has been caused due to the act of a stranger, who is neither defendant’s

servant nor agent nor the defendant has any control over him, the defendant will not be liable.”

In Box v. Jubh (1879) 4 Ex. D. 76, the overflow from the defendant’s reservoir was caused by the blocking of a drain by stranger, the defendant was held not liable. But if the act of the stranger, is or can be foreseen by the defendant and the damage can be prevented, the defendant must, by due care prevent the damage. Failure on his part to avoid such damage will make him liable. This means that if the escape and resulting damage are caused by the unforeseeable and deliberate actions of a third party, the property owner may not be held liable.

In the given situation, Vedant intentionally climbed over the fence and opened the kennel gate, allowing the dog to run free. This action was not something that Reyansh could have reasonably anticipated or prevented. Therefore, Reyansh may not be held liable for the damages to Kartik because the escape and subsequent injury were caused by Vedant i.e., the third party.

Ans. The Supreme Court has discussed the applicability of the rule of Rylands v. Fletcher [UKHL 1, (18b8) LR 3HL 330] in the case of M.C. Mehta v. Union of India and Others (1987) 1. Comp. L.J. p. 99 S.C. while determining the principles on which the liability of an enterprise engaged in a hazardous or inherently dangerous industry depended if an accident occurred in such industry.

“We have to evolve new principle and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that, in any other foreign country”.

On the question of the nature of liability for a hazardous enterprise the court while noting that the above rule as developed in England recognizes certain limitations and responsibilities recorded it’s final view as follows:

“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas, owes an absolute and non- delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged, must be conducted with the highest standards of safety; and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm; and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without negligence on its part.”

Thus, while imposing absolute liability for manufacture of hazardous substances, the Supreme Court intended that the requirement of non-natural use or the aspect of escape of a dangerous substance, commonly regarded as essential for liability under Rylands v. Fletcher, need not be proved in India.

Ans. Qui facit per alium facit per se - he who acts through another is acting himself, so that the act of the agent is the act of the principal. When an agent commits a tort in the ordinary course of his duties as an agent, the principal is liable for the same. In Lloyd v. Grace, Smith & Co. (1912) A.C. 716, the managing clerk of a firm of solicitors, while acting in the ordinary course of business committed fraud, against a lady client by fraudulently inducing her to sign documents transferring her property to him. He had done so without the knowledge of his principal who was liable because the fraud was committed in the course of employment.

The House of Lords in this case held that, by allowing the managing clerk to deal with clients, the firm had given him ostensible authority to conduct certain types of business. Therefore the firm was liable for the fraud.

Normally, the tortfeasor is liable for his tort. But in some cases a person may be

held liable for the tort committed by another. A master is vicariously liable for the tort of his servant, principal for the tort of his agent and partners for the tort of a partner. This is known as vicarious liability in tort.

Ans. An employer is vicariously liable for the torts of his servants committed in the course of their employment, but he is not liable for the torts of those who are his independent contractors.

An independent contractor is one who works for another but who is not controlled by that other in his conduct in the performance of that work. These definitions show that a person is a servant where the employer “retains the control of the actual performance” of the work.

When Employer is Liable for the acts of Independent Contractor

The employer is not liable merely because an independent contractor commits a tort in the course of his employment; the employer is liable only if he himself is deemed to have committed a tort. This may happen in one of the following three ways:

1. When employer authorizes him to commit a tort.

2. In torts of strict liability.

3. Negligence of independent contractor.

When Employer is not Liable for the acts of an Independent Contractor

An employer is not liable for the tort of an independent contractor if he has taken care in the appointment of the contractor. In Philips v. Britania Hygienic Laundry Co. (1923), the owner of lorry was held not liable when a third-party’s vehicle was damaged, in consequence of the negligent repair of his lorry by a garage proprietor.

Ans. Tort committed by a partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several.

In the case of Hamlyn vs.Houston & Co. (1903) 1 K.B. 81, one of the two partners bribed the plaintiff's clerk and induced him to divulge secrets relating to his employer's business. It was held that both the partners were liable for the tort committed by only one of them.

Ans. For the tort committed by a partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several. This case involves vicarious liability arising out of the special relationship between partners. Partners are agent of a partnership firm. The principles of agency govern the relationship between partners as well as between partners and partnership firm. So far as the liability for the torts or negligence committed by the partners is concerned a firm is liable for the same, provided such negligence or tort is committed in the ordinary course of the business of the firm.

It is noteworthy that each partner is an agent at one hand and at the same time is a principal of all other partners. His deeds in the ordinary course of firm’s business bind other partners and simultaneously make the firm liable for his deed.

In this case Ramesh was acting within the scope of his authority and in the ordinary course of firm’s business, where he bribed the clerk of the plaintiff’s company and induced him to commit a breach of contract with the plaintiff and divulge some of the secret important information of the plaintiff’s company. Thus, both the partners may be held liable for the said wrongful act of Ramesh.

In view of the above, it can be said that plaintiff may succeed.

Ans. A master is liable for the tort committed by his servant while acting in the course of his employment. The servant, of course, is also liable; their liability is joint and several.

In such cases -

1. liability of a person is independent of his own wrongful intention or negligence

2. liability is joint as well as several

3. In case of vicarious liability, the liability arises because of the relationship between the principal and the wrongdoer but in case of absolute or strict liability, the liability arises out of the wrong itself.

A master is liable not only for the acts which have been committed by the servant, but also for acts done by him which are not specifically authorized, in the course of his employment. The basis of the rule has been variously stated: on the maxim Respondeat Superior (Let the principal be liable) or on the maxim Qui facit per alium facit per se (he who does an act through another is deemed to do it himself). The master is liable even though the servant acted against the express instructions, for the benefit of his master, so long as the servant acted in the course of employment.

Ans. General principles of vicarious liability are based on two maxims as follows:

1. 'Qui facit per alium facit per se', which means, "One who does an act through another is deemed in law to do it himself".

2. 'Respondeat superior' which means, "Let the principal be liable" / "let the superior be responsible" for their subordinate.

Vicarious liability is a form of strict, secondary liability. Such liability arises in relationships such as of master and servant, where master shall be liable for the act of the servant done in course of employment. An act is said to be in course of employment if:

1. The master has directly authorized the act to the servant;

2. The act done is authorized act done wrongly.

The wrong doing of an authorized act will make the master liable. The facts in the instant case are, however, very clear that the incident in question took place when the cash box was being brought into the bank premises and the deceased was also entering the bank premises. If the security guard committed an error in perceiving the act of the deceased as a threat to the cash box as an impediment of protection of the property of the bank from a possible danger from any third party, the act of the security guard causing death of deceased was in the course of the employment of the security guard and, therefore, it is not possible to accept the defence pleaded by the bank that it is not vicariously liable.

Ans. A master/employer is liable for the tort committed by his servant while acting in the course of his employment. The servant, of course, is also liable; their liability is joint and several. This is known as vicarious liability. The relationship of an individual with that of his/ her independent contractor is not that of master-servant.

The employer is not liable merely because an independent contractor commits a tort in the course of his employment. The employer is liable only if he himself is deemed to have committed a tort. This may happen in one of the following three ways:

1. When employer authorizes him to commit a tort.

2. In torts of strict liability

3. Negligence of independent contractor.

In the present case, Swaraj would be liable for the fault of Rakesh in the above mentioned circumstances.

Ans. When a case of Government liability in tort comes before the courts, the question is whether the particular Government activity, which gave rise to the tort, was the sovereign function or non-sovereign function. If it is a sovereign function it could claim immunity from the tortuous liability, otherwise not. Generally, the activities of commercial nature or those which can be carried out by the private individual are termed as non-sovereign functions.

The first important case involving the tortious liability of the State was raised in the pre-independence era P. and O. Steam Navigation v. Secretary of State for India (5 Bom HCR App 1). The question referred to the Supreme Court was whether the Secretary of State for India is liable for the damages caused by the negligence of the servants in the service of the Government. The Supreme Court answered the question in the affirmative. The Court pointed out the principle of law that the Secretary of State for India in Council is liable for the damages occasioned by the negligence of Government servants, if the negligence is such as would render an ordinary employer liable. According to the principle laid down in this case the Secretary of State can be liable only for acts of non-sovereign nature, liability will not accrue for sovereign acts. The Court admitted the distinction between the sovereign and non-sovereign functions of the government and said that here was a great and clear distinction between acts done in exercise of what are termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them.

Ans. Battery

Any direct application of force to the person of another individual without his consent or lawful justification is a wrong of battery. To constitute a tort of battery, therefore, two things are necessary:

1. use of force, however, trivial it may be without the plaintiff’s consent, and

2. without any lawful justification.

Even though the force used is very trivial and does not cause any harm, the wrong is committed. Thus, even to touch a person in anger or without any lawful justification is battery.

Assault

Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a contact. Thus, when the defendant by his act creates an apprehension in the mind of the plaintiff that he is going to commit battery against him, the tort of assault is committed. The law of assault is substantially the same as that of battery except that apprehension of contact, not the contact itself has to be established. Usually when there is a battery, there will also be assault, but not for instance, when a person is hit from behind. To point a loaded gun at the plaintiff, or to shake first under his nose, or to curse him in a threatening manner, or to aim a blow at him which is intercepted, or to surround him with a display of force is to assault him clearly if the defendant by his act intends to commit a battery and the plaintiff apprehends it, is an assault.

Ans. False imprisonment consists in the imposition of a total restraint for some period, however short, upon the liberty of another, without sufficient lawful justification.

It means unauthorized restraint on a person's body. What happens in false imprisonment is that a person is confined within certain limits so that he cannot move about and so his personal liberty is infringed. It is a serious violation of a person's right and liberty whether being confined within the four walls or by being prevented from leaving place where he is. If a man is restrained, by a threat of force from leaving his own house or an open field there is false imprisonment.

In Sunil Batra v. Delhi Administration AIR 1980 SC 1579, the Supreme Court while interpreting section 56 of the Prisons Act, 1894, observed that there is an implied duty on the jail superintendent to give reasons for putting bar fetters on a prisoner to avoid invalidity of that provision under Article 21 of the Constitution. Thus the Supreme Court laid the foundation of a sound administrative process requiring the adjudicatory authorities to substantiate their order with reasons.

Ans. Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another, maliciously and without reasonable and probable cause, which terminate in favour of that other and which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

1. There must have been a prosecution of the plaintiff by the defendant.

2. There must have been want of reasonable and probable cause for that prosecution.

3. The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of justice).

4. The plaintiff must have suffered damages as a result of the prosecution.

5. The prosecution must have terminated in favour of the plaintiff.

Ans. Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another, maliciously and without reasonable and probable cause, which terminate in favour of that other and which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

1. There must have been a prosecution of the plaintiff by the defendant.

2. There must have been want of reasonable and probable cause for that prosecution.

3. The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of justice).

4. The plaintiff must have suffered damages as a result of the prosecution.

5. The prosecution must have terminated in favour of the plaintiff.

To be actionable, the proceedings must have been instigated actually by the defendant. If he merely states the fact as he believes them to a policeman or a magistrate, he is not responsible for any proceedings which might ensue as a result of action by such policeman or magistrate on his own initiative.

In the given situation, Ravi falsely accused Govind out of spite and that the court found the allegations baseless and acquitted Govind. Therefore, Govind can seek a remedy against Ravi under the law of tort by filing a suit for malicious prosecution under the law of tort.

Ans. Under the Law of Torts remedies can be in the form of Judicial Remedies and Extra Judicial Remedies.

Judicial Remedies

Three types of judicial remedies are available to the plaintiff in an action for tort namely:

1. Damages,

2. Injunction, and

3. Specific Restitution of Property.

Extra Judicial Remedies

In certain cases it is lawful to redress one’s injuries by means of self-help without recourse to the court. These remedies are:

1. Self Defence

2. Prevention of Trespass

3. Re-entry on Land

4. Re-caption of Goods

5. Abatement of Nuisance

6. Distress Damage feasant

Ans. The main remedy for a tort is an action for unliquidated damages, although some other remedies like Injunction, Specific Restitution and Self Help are also available.

Injunction, may be obtained in addition to damages or specific restitution may be claimed in an action for the detention of a chattel. Self-help is a remedy of which the injured party can avail himself without going to a law court. It does not apply to all torts and perhaps the best example of these to which it does apply is trespass to land. For example, if “A” finds a drunken stranger in his room who has no business to be there in it, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but if that be not possible with such force as the circumstances of the case may warrant

Ans. Extra Judicial remedies under Law of torts are available in certain cases. It is lawful to redress one’s injuries by means of self-help without recourse to the court; these are as under:

1. Self Defence - It is lawful for any person to use reasonable forces to protect himself, or any other person against any unlawful use of force.

2. Prevention of Trespass - An occupier of land or any person with his authority may use reasonable force to prevent trespassers entering or to eject them but the force should be reasonable for the purpose.

3. Re-entry on Land - A person wrongfully disposed of land may retake possession of land if he can do so in a peaceful and reasonable manner.

4. Re-caption of Goods - It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either peacefully or by the use of a reasonable force from one who has wrongly taken it or wrongfully detained it.

5. Abatement of Nuisance - The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously affecting it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees, but (i) upon giving notice; (ii) by choosing the least mischievous method; (iii) avoiding unnecessary damage.

6. Distress Damage Feasant - An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing damage there and detain them until compensation is paid for the damage. The right is known as that of distress damage feasant-to distrain things which are doing damage.

Article 299 (2) of the Constitution makes it clear that neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of the Constitution or for the purposes of any enactment relating to the Government of India. Subject to the provision of Article 299(1), the other provisions of the general law of contract apply even to the Government contract. According to Section 70 of the Indian Contract Act, 1872, where a person lawfully does anything for another person or delivers anything to him such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered.

It may happen that a public servant may be negligent in exercise of his government duty. It may be difficult to recover compensation from him. From the point of the aggrieved person, compensation is more important than punishment.

1. A contract with the Government of Union or State will be valid and binding only if certain conditions are followed. Explain. (3 marks)

2. State the effects of a valid contract with Government. (2 marks)

3. Will Government be liable to pay compensation, if the requirement of Section 70 of the Indian Contract Act, 1872 are fulfilled ? Explain. (2 marks)

4. Is the state vicariously liable for the wrongful acts of its servants ? Explain. (3 marks) (June, 24)

Ans.

1. A contract with the Government of the Union or State will be valid and binding only if the following conditions are followed:

1. The contract with the Government must be made in the name of the President or the Governor, as the case may be.

2. The contract must be executed on behalf of the President or the Governor of the State as the case may be. The word executed indicates that a contract with the Government will be valid only when it is in writing.

3. A person duly authorised by the President or the Governor of the State, as the case may be, must execute the contract.

As soon as the contract is executed with the Government in accordance with Article 299 of the Constitution of India, the whole law of contract as contained in the Indian Contract Act, 1872 comes into operation. In India, the remedy for the breach of a contract with Government is simply a suit for damages.

Further, writ of mandamus can be issued for the enforcement of contractual obligations (Gujarat State Financial Corporation v. Lotus Hotels, 1983 3 SCC 379).

Section 70 of the Indian Contract Act, 1872 enables a person who actually supplies goods or renders some services not intending to do gratuitously, to claim compensation from the person who enjoys the benefit of the supply made or services rendered. Section 70 is not based on any subsisting contract between the parties but is based on quasi-contract. If the requirements of Section 70 are fulfilled even the Government becomes liable to pay compensation for the work actually done or services rendered by the State.

3. Like all other employers the State should also be made vicariously liable for the wrongful acts of its servants. The Court in India are conscious about increasing cases of excesses and negligence on the part of the administration resulting in the negation of personal liberty. Hence, they are coming forward with pronouncement holding the Government liable for damages even in those cases where the plea of sovereign function could have negatived the governmental liability.

In view of the above, it can be said that state is also vicariously liable for the wrongful acts of its servants.

Ans. “Decree” is defined in Section 2(2) of the Civil Procedure Code, 1908 as

1. the formal expression of an adjudication which, so far as regards the Court expressing it;

2. conclusively;

3. determines the rights of the parties;

4. with regard to all or any of the matters in controversy; (v) in the suit and may be either preliminary (i.e. when further proceedings have to be taken before disposal of the suit) or final.

But decree does not include:

1. any adjudication from which an appeal lies as an appeal from an Order, or

2. any order of dismissal for default.

Essentials of a decree are:

• There must be a formal expression of adjudication.

• There must be a conclusive determination of the rights of the parties.

• The determination must be with regard to or any of the matters in controversy in the suit.

• The adjudication should have been given in the suit.

What do you understand by ‘set off’ and ‘counter-claim’ under the Civil Procedure Code, 1908 ? What is the effect of set-off ? (Dec, 19 – 4 Marks)

Ans. Set-off

Order VIII, Rule 6 of Civil Procedure Code, 1908 deals with set-off which is a reciprocal acquittal of debts between the plaintiff and defendant. It has the effect of extinguishing the plaintiff's claim to the extent of the amount claimed by the defendant as a counter claim.

Under Order VIII , Rule 6 of Civil Procedure Code, 1908 where in a suit for the recovery of money the defendant claims to set off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff not exceeding the pecuniary jurisdiction of the Court and where both parties fill the same character as in the plaintiff is suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

Counter-claim

A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filling of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of claim for damages or not. Such counter-claim must be within the pecuniary jurisdiction of the Court. (Order VIII, Rule 6A).

Effect of Set-off

The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgement in respect both of the original claim and of the set-off, but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

Ans. As the presiding officer of the court, I would carefully consider X’s suit to recover possession of the movable property against Y, along with the allegation that Y may dispose of the property to his benefit. In such cases, the issuance of a temporary injunction or stay order can be crucial to prevent the alleged wrongful disposal of the property.

It is necessary to refer to the following points:

1. The case of Dalpat Kumar and Ors. vs. Prahlad Singh and Ors. (16.12.1991 - SC) : AIR 1993 SC 276

In this case, Court held that three main requirements are to be satisfied while granting a temporary injunction:

1. There should be a Prima facie case

2. If an injunction is not granted, it would lead to irreparable loss and,

3. Balance of convenience.

It was stated by the Court that:

“Satisfaction that there is a prima facie case by itself is not sufficient to grant the injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant the injunction and he needs protection from the consequences of apprehended injury or dispossession. The third condition also is that “the balance of convenience” must be in favor of granting an injunction.

Provision relating to Power to order interim sale

As per Rule 6 of Order XXXIX, the Court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property, being the subject-matter of such suit, or attached before judgment in such suit, which is subject to speedy and natural delay, or which for any other just and sufficient cause, it may be desirable to have sold at once.

After analyzing the facts and circumstances of the case, I am likely to give necessary relief as per the above mentioned discussion.

Distinguish between review and revision under the Civil Procedure Code 1908. (June, 19 – 4 Marks)

Ans. The right of review has been conferred by Section 114 and Order 47 Rule 1 of the Civil Procedure Code 1908. It provides that any person considering himself aggrieved by a decree or order may apply for a review of judgement to the court which passed the decree or made the order on any of the grounds as mentioned in Order 47 Rule 1, namely—

1. discovery by the applicant of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or

2. on account of some mistake or error apparent on the face of the record, or

3. for any other sufficient reason,

and the Court may make such order thereon as it thinks fit.

Whereas Section 115 of the Civil Procedure Code 1908 deals with revision. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears—

1. to have exercised a jurisdiction not vested in it by law, or

2. to have failed to exercise a jurisdiction so vested, or

3. to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order as it thinks fit.

Provided that the High Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or proceeding except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.

The Civil Court has power to grant temporary injunction, but for obtaining the same the plaintiff is required to satisfy the Court. Explain in brief. (June, 19 – 4 Marks) or

Ans. Temporary injunction - The Court may grant temporary injunction for the purpose of staying and preventing the wasting, damaging, alienation or sale or removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit; where it is proved by affidavit or otherwise:

1. that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

2. that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, or

3. that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

It would be necessary for the plaintiff to satisfy the Court that he has a prima facie case in the sense that even a superficial look at the facts of the case will show that the plaintiff’s case has some merit. Further, the balance of convenience should also lie in favour of the plaintiff. For example, in a suit for eviction of a tenant from a rented premises, the balance of convenience would lie in favour of the tenant who is occupying the property. Moreover, the plaintiff will also have to satisfy the Court that substantial and irreparable harm or injury would be suffered by him if such temporary injunction (till the disposal of the suit) is not granted and that such loss or damage or harm cannot be compensated by damages.

Ans: Section 10 of the Civil Procedure Code, 1908 provides that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Doctrine of Res Sub Judice restricts or bar under Section 10 of the Civil Procedure Code, 1908.

However, the pendency of a suit in a foreign court does not preclude the Courts in India from trying a suit founded on the same cause of action.

To prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue, Section 10 is enacted. The purpose is also to avoid conflict of decision. It is really intended to give effect to the rule of res judicata. The institution of second suit is not barred by Section 10. It merely says that the trial cannot be proceeded with.

Ans. Section 11 of the Code of Civil Procedure 1908, deals with the doctrine of Res Judicata that is, bar or restraint on repetition of litigation of the same issues. It is a pragmatic principle accepted and provided in law that there must be a limit or end to litigation on the same issues. The doctrine underlines the general principle that no one shall be twice vexed for the same cause.

For the applicability of the principle of res judicata embodied in Section 11, the following requirements are necessary:

1. The matter directly and substantially in issue in former suit shall also be directly and substantially in issue in latter suit.

2. The issue or the suit itself is heard and finally decided, then it operates as res judicata.

3. Such former suit and the latter are between the same parties or litigation under the same title or persons claiming under parties above.

Ans. The Rule of Res Sub Judice relates to a matter which is pending judicial enquiry while Res Judicata relates to a matter adjudicated upon or a matter on which judgement has been pronounced. Res Sub Judice bars the trial of a suit in which the matter directly or substantially is pending adjudication in a previous suit, whereas rule of res judicata bars the trial of a suit of an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit between the same parties under the same title.

Res Judicata arises out of considerations of public policy viz., that there should be an end to litigation on the same matter. Res-Judicata presumes conclusively the truth of the former decision and ousts the jurisdiction of the Court to try the case. It is however essential that the matter directly and substantially in issue must be the same as in the former suit and not matters collaterally or incidentally in issue.

Which are the cases relating to property that can be instituted under Section 16 of Civil Procedure Code, 1908 ? State the limitations, if any.

Ans. A consent or compromise decree is not a decision by Court. It is an acceptance of something to which the parties had agreed. The Court does not decide anything. The compromise decree merely has the seat of the Court on the agreement of the parties. As such, the principle of res judicata does not generally apply to a consent or compromise decree. But when the court on the facts proved comes to a conclusion that the parties intended that the consent decree should have the effect of deciding the question finally, the principle of res judicata may apply to it.

Section 11 of the Code of Civil Procedure, 1908 deals with the doctrine of Res Judicata. The doctrine underlines the general principle that no one shall be twice vexed for the same cause, however, it does not apply in case of Consent and Compromise between parties, but depends on the Court, subject to the facts of the case.

Ans. Section 11 of the Code of Civil Procedure, 1908 deals with the doctrine of res judicata. According to this provision, no Court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit (i.e., suit previously decided) either between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and finally decided by such Court. It is a pragmatic principle accepted and provided in law that there must be a limit or end to litigation on the same issues.

In the given situation, A filed a suit against B in 2019 claiming that B had wrongfully evicted him from a property. The court in its judgment in 2021, decided in B’s favour, stating that the eviction was lawful and dismissed A’s claim. In 2023, A files a new suit against B on the same grounds, seeking to reopen the case. In the given situation, the principle of res judicata prevents re-opening of the case based on the same grounds, as it was already adjudicated by the court. Therefore, B’s argument is valid. The new suit filed by A in 2023, based on the same cause of action, is barred by the doctrine of res judicata.

The doctrine of res judicata underlines the general principle that no one shall be twice vexed for the same cause (S.B. Temple v. V.V.B. Charyulu, (1971) 1 SCJ 215).

It prevents two different decrees on the same subject. Section 11 says that once a res is judicata, it shall not be adjudged again. The principle applies to suits in Section 11 of the Code; but even where Section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of giving finality to litigation. For the applicability of the principle of res judicata embodied in Section 11, the following requirements are necessary:

1. The matter directly and substantially in issue in former suit shall also be directly and substantially in issue in later suit. The expression “directly and substantially in issue” means an issue alleged by one party and denied or admitted by the other either expressly or by necessary implications.

2. The former suit has been decided - former suit means which is decided earlier.

3. The said issue has been heard and finally decided.

4. Such former suit and the latter are between the same parties or litigation under the same title or persons claiming under parties above.

In short, this principle applies where an issue which has been raised in a subsequent suit was directly and substantially in issue in a former suit between the same parties and was heard and decided finally.

Ans. According to section 16 of the Code of Civil Procedure, 1908, subject to the pecuniary or other limitations prescribed by any law, the following suits (relating to property) shall be instituted in the Court within the local limits of whose jurisdiction the property is situated:

1. for recovery of immovable property with or without rent or profits;

2. for partition of immovable property;

3. for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;

4. for the determination of any other right to or interest in immovable property;

5. for compensation for wrong to immovable property;

6. for the recovery of movable property actually under distraint or attachment.

Further, It has been provided by a proviso that where relief could be obtained through personal obedience of the defendant such suit to obtain relief for compensation or respecting immovable property can be instituted either in a local Court within whose local limits of jurisdiction the property is situated or in the Court within whose local limits of jurisdiction the defendant voluntarily resides or carries on business or personally works for gain.

Ans. A minor is a person (i) who has not completed the age of 18 years and (ii) for whom or his/her property a guardian has been appointed by a Court, or whose property is under a Court of Wards, the age of majority is completed at the age of 21 years.

Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. The next friend should be a person who is of sound mind and has attained majority. However, the interest of such person is not adverse to that of the minor and that he is not in the case of a next friend, a defendant for the suit. (O.32, Rules 1 and 4 of Civil Procedure Code ).

Where the suit is instituted without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. (O.32, R.2).

Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor [O.32, R.3(1)].

An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff [O.32, R.3(2)]

A person appointed as guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continues as such throughout all proceeding arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree. [O.32, R.3(5)].

When minor attains majority - When the minor plaintiff attains majority he may elect to proceed with the suit or application or elect to abandon it. If he elects the former course, he shall apply for an order discharging the next friend and for leave to proceed in his own name and the title of the suit will be corrected. If he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant apply for an order to dismiss the suit on repayment of the costs incurred by the defendant or opposite party etc.

Ans. A minor is a person (i) who has not completed the age of 18 years and (ii) for whom or his/her property a guardian has been appointed by a Court, or whose property is under a Court of Wards, the age of majority is completed at the age of 21 years.

Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. The next friend should be a person who is of sound mind and has attained majority. However, the interest of such person is not adverse to that of the minor and that he is not in the case of a next friend, a defendant for the suit. (O.32, Rules 1 and 4 of Civil Procedure Code ).

Where the suit is instituted without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. (O.32, R.2).

Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor [O.32, R.3(1)].

An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff [O.32, R.3(2)]

A person appointed as guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continues as such throughout all proceeding arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree. [O.32, R.3(5)].

When minor attains majority - When the minor plaintiff attains majority he may elect to proceed with the suit or application or elect to abandon it. If he elects the former course, he shall apply for an order discharging the next friend and for leave to proceed in his own name and the title of the suit will be corrected. If he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant apply for an order to dismiss the suit on repayment of the costs incurred by the defendant or opposite party etc.

In this case, the decree was passed in contravention of Order XXXII of the Code of Civil Procedure, 1908. Raj was a minor at the time when the suit was instituted as well as when the house was sold in execution of the decree. It is well-settled that a decree passed against a minor without the appointment of a guardian is null and void, being passed without jurisdiction. As there was no guardian ad litem appointed for Raj, the decree stands vitiated and unenforceable in law.

Consequently, no valid title could pass to Prabhu under a void decree. Therefore, Prabhu’s claim for possession of the house is not legally tenable.

Ans. Order 37 of the Civil Procedure Code provides for a summary procedure in respect of certain suits. The object is to prevent unreasonable obstruction by a defendant. A procedure by way of summary suit applies to suits upon bill of exchange, hundies or promissory notes, when the plaintiff desires to proceed under the provisions of Order 37.

The rules for summary procedure are applicable to the High Courts, City Civil Courts and Small Courts and such other Courts.

Leave to defend

Order 37 Rule 3 of the Civil Procedure Code prescribe the mode of service of summons etc. and leave to defend. The defendant is not entitled to defend the suit unless he enters an appearance within 10 days from the service of summons.

Such leave to defend may be granted unconditional or upon such term as the Court or the Judge may think fit. However, such leave shall not be granted where:

1. the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence or that the defences are frivolous or veracious, and

2. the part of the amount claimed by the plaintiff and admitted by the defendant to be due from him is not deposited by him in the Court.

On the hearing of such summons for judgement, the plaintiff shall be entitled to judgement provided the defendant has not applied for leave to defend or if such application has been made and is refused or where the defendant is permitted to defend but he fails to give the required security within the prescribed time or to carry out such other precautions as may have been directed by the Court.

After decree, the Court may, under special circumstances set-aside the decree and if necessary stay or set aside execution, and may give leave to the defendant to appear and to defend the suit. (Order 37 Rule 4)

Ans. In a civil case, a defendant has four remedies available if an ex-parte decree is passed against him:

1. He may file an appeal against the ex-parte decree under Section 96 of the Civil Procedure Code.

2. He may file an application for review of the judgement. (Order 47, Rule 1 of the Civil Procedure Code)

3. He may apply for setting aside the ex-parte decree.

4. A suit can also be filed to set aside an ex-parte decree obtained by fraud but no suit shall lie for non-service of summons.

Ans. Order V, Rule 20 of the Civil Procedure Code, 1908 deals with the provision relating to substituted service and its effects. The requirements relating to the said rule is as under:

When can be issued: Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by substituted service.

Modes of substituted service:

1. By affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

2. By an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

Effect of substituted service : Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.

Ans. According to Section 20(a) of Civil Procedure Code, 1908, subject to the limitations aforesaid i.e. Section 15, 16, 17, 18 and 19, every suit shall be instituted in a Court within the local limits of whose Jurisdiction the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. The provisions relating to limitation are explained as under:

1. Section 15 - Court in which suits to be instituted : Every suit shall be instituted in the Court of the lowest grade competent to try it.

2. Section 16 - Suits to be instituted where subject-matter situate : Subject to the pecuniary or other limitations prescribed by any law, suits

   1. for the recovery of immovable property with or without rent or profits,

   2. for the partition of immovable property,

   3. for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

   4. or the determination of any other right to or interest in immovable property,

   5. for compensation for wrong to immovable property,

   6. for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.

However, a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Section 17 - Suits for immovable property situate within jurisdiction of different Courts : Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: However, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.

3. Section 18 - Place of Institution of suit where local limits of jurisdiction of Courts are uncertain : Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts, any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction:

However, that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

Where a statement has not been recorded under section 18(1), and an objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice

Section 19 - Suits for compensation for wrongs to person or movables : Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Ans. Distinguish between Ratio Decidendi & Obiter Dicta

Rules Governing binding force of judicial precedents:

• The decisions of High Court are binding on all the subordinate courts and tribunals within its jurisdiction. The decisions of one High Court have only a persuasive value in a court which is within the jurisdiction of another High Court. But if such decision is in conflict with any decision of the High Court within whose jurisdiction that court is situated, it has no value and the decision of that High Court is binding on the court. In case of any conflict between the two decisions of co-equal Benches, generally the later decision is to be followed.

• In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is known as Division Bench. Three or more judges constitute a Full Bench. A decision of such a Bench is binding on a Smaller Bench. One Bench of the same High Court cannot take a view contrary to the decision already given by another co- ordinate Bench of that High Court. Decision of a Division Bench is binding on a single judge of the same High Court. Thus, a decision by a Bench of the High Court should be followed by other Benches unless they have reason to differ from it, in which case the proper course is to refer the question for decision by a Full Bench.

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

• The Supreme Court is the highest court and its decisions are binding on all courts and other judicial tribunals of the country. Article 141 of the Constitution makes it clear that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

• However, it does not mean that every statement in a judgement of the Supreme Court has the binding effect. Only the statement of ratio of the judgement is having the binding force.

Ans. The main aim of CPC is to facilitate justice and seek an end to the litigation rather than provide any form of punishment and penalties. Reference and Review are remedies provided under Civil Procedure Code, 1908 to cater different situation. These situations are as under:

Reference

Section 113 provides that subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit.

Reference is made to the High court when it has reasonable doubt during any suit, appeal, execution proceeding etc. It is referring a case to High court on a question of law.

The underlying object for this provision is to enable subordinate court to obtain, in non-appealable cases, the opinion of High court in the absence of a question of law and there by avoid the commission of an error which could not be remedied later on. Such provision also ensures that the validity of a legislative provision (Act, Ordinance or regulation) should be interpreted and decided by the highest court in the state and there wouldn't remain any chance of misrepresentation. Reference should be made before passing of the judgment in the court.

Review

The right of review has been conferred by Section 114 of the Civil Procedure Code, 1908. It provides that any person considering himself aggrieved by a decree or order may apply for a review of judgement to the court which passed the decree or made the order on any of the grounds as mentioned in Order 47 Rule 1, namely:

1. discovery by the applicant of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or

2. on account of some mistake or error apparent on the face of the record, or

3. for any other sufficient reason, and

The Court may make such order thereon as it thinks fit. Review is the process of judicial re-examination of a case by the same court and by the same judge who has passed the judgment or order. The procedure of review has been embedded in the legal system to correct and prevent miscarriage of Justice.

Ans. Differentiation between rule of res judicata and res subjudice:

• Res judicata means a matter is already decided and cannot be heard again. Res judicata prevents a second trial of the formerly settled disputes. Whereas res subjudice applies to the pending suit. It bars parallel proceedings. Res subjudice prevents parallel proceedings on the same matter.

• Res judicata is covered under Section 11 of the Code of Civil Procedure, 1908 whereas Res subjudice is covered under Section 10 of the Code of Civil Procedure, 1908.

• In Res judicata the suit had been decided by the competent court. The issue must be the same in subsequent and former suits. The suit must be filed between the same parties. The court must have jurisdiction. The former and subsequent suits have the same title. While in Res subjudice, there must be two suits and one must have already commenced. The matter in issue is the same. The suit was filed in a competent court. The suit must be pending in court. The title of the suit and the parties are the same.

• Aim of Res judicata is to end the litigation proceedings. While Res subjudice aims to prohibit parallel proceedings between the same parties.

1. Can a case triable by Special Judge as provided under Criminal Law Amendment Act, 1952 be transferred to High Court? Discuss.

2. Discuss the jurisdiction of Courts depending upon their powers.

(Dec 23 - 5 marks)

Ans. (a) In the case A.R. Antulay vs. R.S. Nayak and Ors. (29.04.1988 - SC) : 1988 AIR 1531, the issue was whether the a case triable by Special Judge as provided under Criminal Law Amendment Act, 1952 could be transferred to High Court or not. It was held that Court by its directions cannot confer jurisdiction to High Court of Bombay to try any case by itself for which it does not possess such jurisdiction.

The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no Court, whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal. Thus, a Court by its discretion cannot confer jurisdiction to High Court to try any case by itself for which it does not possess such jurisdiction.

(b) The jurisdiction of Courts depending upon their powers are as under:

1. Original Jurisdiction - A court tries and decides suits filed before it.

2. Appellate jurisdiction - A court hears appeals against decisions or decrees passed by sub- ordinate Courts.

3. Criminal and Appellate jurisdiction - the Supreme Court, the High Courts and the District Courts have both original and appellate jurisdictions in various matters.

A territorial limit of jurisdiction for each court is fixed by the Government. Section 6 of the Code of Civil Procedure, 1908 deals with Pecuniary jurisdiction. Section 9 of Civil Procedure Code states that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Ans. Rule 6 of Order VIII of Code of Civil Procedure, 1908 deals with set-off which is a reciprocal acquittal of debts between the plaintiff and defendant. It has the effect of extinguishing the plaintiff’s claim to the extent of the amount claimed by the defendant as a counter claim.

In the case of Jitendra Kumar Khan and Ors. vs. The Peerless General Finance and Investment Company Limited and Ors. (07.08.2013 - SC) : 2013 ALL SCR 3259, it has been decided that Equitable set-off is different than the legal set-off; that it is independent of the provisions of the Code of Civil Procedure; that the mutual debts and credits or cross-demands must have arisen out of the same transaction or to be connected in the nature and circumstances; that such a plea is raised not as a matter of right; and that it is the discretion of the court to entertain and allow such a plea or not. In view of the above discussion, it can be said that in India distinction between Legal and Equitable set-off is recognised.

Ans. “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report.

🔹 A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer shall be deemed to be the complainant

Ans. Statutory Definitions

• Cognizable offence – Section 2(g), BNSS, 2023

• Non-cognizable offence – Section 2(n), BNSS, 2023

Enumerate any four categories of cases in which a police officer may arrest a person without an order from magistrate and without a warrant under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023. (Dec, 19 – 4 Marks)

Ans. Section 35 – When Police May Arrest Without Warrant

(1) Situations Where Arrest Can Be Made Without Warrant or Magistrate's Order

A police officer may arrest a person without a warrant or magistrate’s order in the following cases:

(a) Commission of Cognizable Offence in Presence

• When a person commits a cognizable offence in the presence of a police officer.

(b) Reasonable Complaint or Suspicion for Offences up to 7 Years

• When there is a reasonable complaint, credible information, or reasonable suspicion that a person has committed a cognizable offence punishable with imprisonment up to 7 years, if the following conditions are met:

(i) The officer has reason to believe based on such information that the person committed the offence.

(ii) The officer is satisfied that the arrest is necessary for any of these reasons:

(a) To prevent further offences;

(b) For proper investigation;

(c) To prevent disappearance or tampering of evidence;

(d) To stop inducement/threats to witnesses;

(e) To ensure the person appears before court when required.
👉 In such cases, the officer must record reasons in writing for the arrest.
👉 If arrest is not required, officer must record reasons in writing for not making the arrest.

(c) Serious Offences Punishable with Over 7 Years or Death

• When credible information suggests the person committed a cognizable offence punishable with over 7 years or death penalty, and the officer has reason to believe the same.

(d) Proclaimed Offender

• The person has been proclaimed as an offender under this Sanhita or by a State Government order.

(e) Possession of Stolen Property

• The person is found in possession of suspected stolen property and is reasonably suspected of having committed an offence related to it.

(f) Obstruction or Escape

• The person obstructs police in duty or has escaped or tries to escape from custody.

(g) Deserter from Armed Forces

• The person is reasonably suspected of being a deserter from the Indian Armed Forces.

(h) Offence Committed Outside India

• The person is suspected of being involved in an offence committed abroad, which would be an offence in India and is liable to be arrested under extradition laws.

(i) Breach by Released Convict

• The person, being a released convict, violates rules made under Section 394(5).

(j) Requisition by Another Police Officer

• Another police officer has requested arrest, specifying:

  • The identity of the person, and

  • The offence or reason for arrest.
    👉 Provided the person could have been lawfully arrested by the requesting officer.

(2) Arrest in Non-Cognizable Offences

• A person cannot be arrested for a non-cognizable offence (or based on suspicion/complaint of such) without a warrant or Magistrate’s order, subject to Section 39.

(3) Issuing a Notice Instead of Arrest

• If arrest is not required under subsection (1), the officer shall issue a notice to the person suspected of a cognizable offence, requiring them to appear before the officer or another location.

(4) Duty to Comply with Notice

• It is the duty of the person to comply with the notice.

(5) No Arrest If Notice Complied With

• If the person complies and continues to comply with the notice, they shall not be arrested for that offence, unless the officer records reasons showing that arrest is necessary.

(6) Arrest on Failure to Comply or Identify

• If the person:

  • Fails to comply with the notice, or

  • Is unwilling to identify himself,
    👉 The officer may arrest him for the offence mentioned in the notice, subject to court orders.

(7) Special Protection for Infirm and Senior Citizens

• No arrest shall be made without prior approval of a Deputy Superintendent of Police (or above) if:

  • The offence is punishable with imprisonment less than 3 years, and

  • The person is infirm or above 60 years of age.

Ans. According to Section 63 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, every summons issued by a Court under BNSS shall be-

1. in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court; or

2. in an encrypted or any other form of electronic communication and shall bear the image of the seal of the Court or digital signature.

Further as per section 64, every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. However, by virtue of section 66, where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

Section 65 of BNSS provides the provisions relating to Service of summons on corporate bodies, firms, and societies. Service of a summons on a company or corporation may be effected by serving it on the Director, Manager, Secretary or other officer of the company or corporation, or by letter sent by registered post addressed to the Director, Manager, Secretary or other officer of the company or corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

In this section, “company” means a body corporate and “corporation” means an incorporated company or other body corporate registered under the Companies Act, 2013 or a society registered under the Societies Registration Act, 1860.

Service of a summons on a firm or other association of individuals may be effected by serving it on any partner of such firm or association, or by letter sent by registered post addressed to such partner, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

Ans. Section 84 of BNSS, 2023 - If a Court believes (with or without evidence) that a person against whom a warrant is issued has absconded or is in hiding, making it impossible to execute the warrant, the Court may:
(i) Issue a written proclamation requiring the person to appear.
(ii) Specify a place and time for appearance, which must be at least 30 days from the date of proclamation.

Describe in brief the cases in which a Search Warrant can be issued under Section 96 in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. (Dec, 19 – 4 Marks)

Ans. Section 96 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, outlines the circumstances under which a court may issue a search warrant. Specifically, it states that if the court has reason to believe that:​

• A person, upon whom a summons or requisition has been or might be served, will not produce the required document or item;​

• The document or item is not known to be in anyone's possession; or​

• A general search or inspection would serve the purposes of an inquiry, trial, or other proceeding under the Sanhita,​

But Such warrant shall not be issued for searching a document, parcel or other thing in the custody of the postal or telegraph authority, by a Magistrate other than a District Magistrate or Chief Judicial Magistrate, nor would such warrant be issued so as to affect Sections 129 and 130 of the BSA 2023 or the Bankers’ Book Evidence Act, 1891.

Ans. Information in cognizable cases and investigation of such cases.

Information to Police and Power to Investigate under BNSS, 2023

Statutory Provisions

• Section 173 – Information in cognizable cases (FIR)

• Section 174 – Information in non-cognizable cases

• Section 175 – Police power to investigate cognizable cases

• Section 176 – Police power to investigate non-cognizable cases

1. Information in Cognizable Cases (Section 173 BNSS)

• Every information relating to the commission of a cognizable offence, if given orally, shall be reduced to writing, read over to the informant and signed by him.

• Information may also be given electronically; it shall be signed within three days.

• A copy of the FIR shall be given free of cost to the informant.

• Zero FIR is permitted—information must be recorded irrespective of territorial jurisdiction and later transferred.

• Refusal to record information must be communicated, and the informant may approach senior police officers.

2. Information in Non-Cognizable Cases (Section 174 BNSS)

• Information relating to a non-cognizable offence shall be entered in a register by the police officer.

• The informant shall be referred to the Magistrate.

• Police cannot investigate such cases without prior order of a Magistrate having jurisdiction.

3. Power to Investigate Cognizable Cases (Section 175 BNSS)

• Police may investigate without the order of a Magistrate.

• For offences punishable with imprisonment less than three years, prior permission of a senior officer may be required as prescribed.

• Police have full authority to:

  • Visit the scene of offence

  • Ascertain facts and circumstances

  • Discover and arrest the offender

• Investigation must be fair, impartial and time-bound as per BNSS safeguards.

4. Power to Investigate Non-Cognizable Cases (Section 176 BNSS)

• Police can investigate only after receiving a Magistrate’s order.

• Once permitted, police may exercise the same investigative powers as in cognizable cases except the power of arrest without warrant.

Conclusion

BNSS, 2023 ensures a balanced mechanism by:

• Making registration of information in cognizable offences mandatory, and

• Protecting citizens in non-cognizable offences by requiring judicial oversight before investigation.

These provisions strengthen accountability, transparency and procedural fairness in criminal investigations.

Ans. Section 6 BNSS, 2023 lays down the competent courts for trial of offences under:

1. Bharatiya Nyaya Sanhita, 2023 (BNS), and

2. Any other law for the time being in force

1. Trial of Offences under BNS, 2023

Offences under the Bharatiya Nyaya Sanhita, 2023 shall be tried by:

• The High Court, or

• The Court of Session, or

• Any other court specified in the First Schedule to BNSS

The court competent to try a particular offence depends upon:

• The nature of the offence, and

• The punishment prescribed under BNS.

2. Trial of Offences under Other Laws

Offences under any other law shall be tried:

• By the court specified in such special or local law, or

• If no court is specified, then by the court mentioned in the First Schedule to BNSS

3. Overriding Principle

The power of courts to try offences is subject to any special provision contained in:

• The BNSS, or

• The special or local law creating the offence

Thus, special laws prevail over general provisions of BNSS.

Conclusion

Section 6 of BNSS, 2023 provides a clear framework for jurisdiction of criminal courts, ensuring that:

• Offences under BNS are tried by courts as per BNSS Schedule, and

• Offences under special laws are tried by courts expressly empowered under those laws.

Ans. PROCLAMATION AND ATTACHMENT

Where a warrant remains unexecuted, the BNSS, 2023 provides for two remedies:

Ans. Section 124 of the Bharatiya Nagarik Suraksha Sanhita, 2023

Grounds on Which Court May Order Execution of Bond

When passing sentence or making an order of acquittal, a Court of Session or Magistrate of the First Class may direct the accused to execute a bond for keeping the peace, if the person is convicted of any of the following offences:

1. Offences involving breach of peace, or

2. Offences involving disturbance of public tranquillity, or

3. Offences involving doing any wrongful act which may cause breach of peace, or

4. Abetment of any of the above offences

The Court must record reasons in writing for passing such an order.

Nature of Bond

• Bond may be with or without sureties

• Bond is to ensure that the accused keeps peace and is of good behaviour

Period for Which Bond Can Be Ordered

• The bond can be ordered for a period not exceeding three years

• The period starts from the date of the order

When Does Such Bond Become Void?

A bond executed under Section 124 BNSS, 2023 becomes void in the following situations:

1. On expiry of the period for which the bond was executed

2. On death of the person who executed the bond

3. If the conviction or order is set aside by a higher court

4. If the bond is cancelled or discharged by a competent court

If during the bond period the person commits breach of peace, the bond may be forfeited, and appropriate legal consequences will follow.

Conclusion

Section 124 BNSS empowers criminal courts to take preventive measures at the sentencing stage itself, ensuring that persons convicted of peace-disturbing offences do not pose a continuing threat to public tranquillity.

Ans. Where a statute imposes liability, the presence or absence of a guilty mind is irrelevant. The classical view of that 'no mens rea, no crime' has long been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created severe punishment even where the offences have been defined to exclude mens rea. Many laws passed in the interest of public safety and social welfare imposes absolute liability. This is so in matters concerning public health, food, drugs, etc. There is absolute liability (mens rea is not essential) in the licensing of shops, hotels, restaurants and chemists establishments. The same is true of cases under the Motor Vehicles Act and the Arms Act, offences against the State like waging of war, sedition etc.

Ans. Meaning - Summary trial is a speedy trial by dispensing with formalities or delay in proceedings. By summary cases is meant a case which can be tried and disposed of at once. Generally, it will apply to such offences not punishable with imprisonment for a term exceeding 2 years.

Section 283 (1) of the BNSS sets out the provisions for summary trials.

It states: Notwithstanding anything contained in BNSS –

1. any Chief Judicial Magistrate;

2. Magistrate of the first class,

shall try in a summary way all or any of the following offences: –

1. theft, under sub-section (2) of section 303, section 305 or section 306 of the Bharatiya Nyaya Sanhita, 2023 where the value of the property stolen does not exceed twenty thousand rupees;

2. receiving or retaining stolen property, under sub-section (2) of section 317 of the Bharatiya Nyaya Sanhita, 2023, where the value of the property does not exceed twenty thousand rupees;

3. assisting in the concealment or disposal of stolen property under sub-section (5) of section 317 of the Bharatiya Nyaya Sanhita, 2023, where the value of such property does not exceed twenty thousand rupees;

4. offences under sub-sections (2) and (3) of section 331 of the Bharatiya Nyaya Sanhita, 2023;

5. insult with intent to provoke a breach of the peace, under section 352, and criminal intimidation, under sub-sections (2) and (3) of section 351 of the Bharatiya Nyaya Sanhita, 2023;

6. abetment of any of the foregoing offences;

7. an attempt to commit any of the foregoing offences, when such attempt is an offence;

8. any offence constituted by an act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871.

Trial in a Summary Way (Section 283(2)) - The Magistrate may, after giving the accused a reasonable opportunity of being heard, for reasons to be recorded in writing, try in a summary way all or any of the offences not punishable with death or imprisonment for life or imprisonment for a term exceeding 3 years. However, no appeal shall lie against the decision of a Magistrate to try a case in a summary way under section 283(2).

Re-hearing of Case if Necessary - When, in the course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by BNSS.

Ans. PROCEDURE OF ARREST – SECTION 36

Provisions relating to procedure of arrest and duties of officer making arrest

Every police officer while making an arrest shall –

1. Identification of Police Officer – Officer must have a clear and visible name badge for easy identification.

2. Preparation of Arrest Memorandum – A written record of the arrest must be made.

   • Witness Attestation – Must be signed by at least one witness, preferably a family member or a respectable local person.

   • Countersign by Arrested Person – The person being arrested must also sign the memorandum.

3. Right to Inform a Relative or Friend – If no family member signs the memorandum, the arrested person must be informed of their right to notify a relative, friend, or any other person about their arrest.

RIGHT TO LEGAL ASSISTANCE DURING INTERROGATION – SECTION 38

• A person who is arrested and interrogated has the right to meet an advocate of their choice.

• However, this right is not available throughout the interrogation but only at certain times.

Bharatiya Nyaya Sanhita, 2023

(ii) In another case A threatens Z that he will keep Z’s child in wrongful confinement, unless Z will sign and deliver to A a promissory note binding Z to pay certain monies to A. Z signs and delivers the note. Explain the offence committed by A under the Bharatiya Nyaya Sanhita, 2023. (Dec, 24 - 5 marks)

Ans.

1. According to Section 303(1) of the Bharatiya Nyaya Sanhita, 2023 “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.”

The essentials elements of theft are:

1. There should be an intention to dishonestly take the property.

2. The property should be movable property.

3. The property should be taken out of the possession without that person’s consent.

4. The property should be moved in order to take that property.

In the instant case, A has committed the offence of theft as A dishonestly takes the dog out of Z’s possession without Z’s consent.

Section 303(2) of BNS provides the punishment for theft and states that whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. In case of second or subsequent conviction of any person under this section, he shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine.

Provided that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, shall be punished with community service.

According to Section 308(1) of the Bharatiya Nyaya Sanhita, 2023 (BNS) “whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits “extortion”.

The essentials elements of extortion are:

1. There should be an intention to put any person in fear of any injury.

2. By that fear of injury, dishonestly induces the person so put in fear to deliver any property, or valuable security or anything signed or sealed which may be converted into a valuable security.

In the instant case, A threatened Z that he will keep Z’s child in wrongful confinement, unless Z will sign and deliver to A, a promissory note binding Z to pay certain monies to A. Z signed and delivered the note. A has committed the offence of extortion as he has put fear of injury to Z thereby dishonestly inducing the person so put in fear to deliver any property, or valuable security or anything signed or scaled which may be converted into a valuable security.

Ans. Section 318 of Bharatiya Nyaya Sanhita, 2023 states that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat.

Explanation. - A dishonest concealment of facts is a deception within the meaning of this section.

The main ingredients of cheating are as under:

1. Deception of any person.

2. (a) Fraudulently or dishonestly inducing that person:

   1. to deliver any property to any person; or

   2. to consent that any person shall retain any property; or

Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

In the given situation, Anand, by falsely pretending to have cleared the Civil Services examination, intentionally deceives Param and dishonestly induces him to provide goods on credit. Therefore, the act of Anand may fall within the purview of the offence of cheating as defined under Section 318 of the Bharatiya Nyaya Sanhita, 2023.

Ans. The Bharatiya Nyaya Sanhita 2023(BNS) includes community service as a form of punishment for minor offences where the offenders perform unpaid work for the benefit of the community. The BNS aims to create a more balanced and rehabilitative criminal justice system by focusing on restorative justice. The goal is to promote rehabilitation and reduce the burden on the prison system.

Under the BNS, the following offences have been specifically mentioned as eligible for community service as a punishment:

1. Section 202: Unlawful engagement of a public servant in trade

2. Section 209: Failure to appear in response to a proclamation under Section 84

3. Section 226: Attempt to commit suicide to influence authorities

(iv) Section 303(2) proviso: Petty theft (first-time offence, value under ₹ 5000, and property recovered)

Section 355: Misconduct in public by a drunken person

4. Section 356(2): Defamation (in certain circumstances)

In all these cases, the court has the discretion to impose community service instead of imprisonment or fine, provided the statutory conditions are satisfied.

Further under Section 303(2), community service is the sole mandatory punishment for petty theft - where the value of stolen property is less than five thousand rupees, and a person is convicted for the first time and the stolen property/value has been returned or restored.

In the given situation, the person is a first-time offender, the stolen property is valued at less than ₹ 5,000, and it has been recovered. Therefore, in accordance with the proviso to Section 303(2) of the BNS, he shall be punished with community service.

Ans. Nature of Offence in the Given Case

(As per BNS, 2023)

Relevant Provisions

• Section 314 – BNS, 2023: Dishonest misappropriation of property

• Section 315 – BNS, 2023: Dishonest misappropriation of property possessed by deceased person

The provision applicable to the present case is Section 314 BNS, 2023.

Whether Any Offence Has Been Committed

In the given case, there are:

• Two independent contracts:

  1. Between the principal and contractor, and

  2. Between the contractor and sub-contractor.

The money paid by the principal to the contractor is not the property of the sub-contractor. The sub-contractor’s remedy for non-payment lies in civil law for recovery of dues, and not in criminal prosecution.

The facts are similar to U. Dhar v. State of Jharkhand (2003), where the Supreme Court held that:

• Mere non-payment of contractual dues does not amount to criminal misappropriation, and

• The dispute is purely civil in nature.

📌 Conclusion on offence:
No offence of criminal misappropriation is committed under Section 314 BNS, 2023.

Criminal Misappropriation of Property

Section 314, Bharatiya Nyaya Sanhita, 2023

Statutory Definition

Whoever dishonestly misappropriates or converts to his own use any movable property shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Essential Ingredients of Criminal Misappropriation

To establish an offence under Section 314 BNS, the following ingredients must be proved:

1. Movable Property

• The subject matter must be movable property belonging to another person.

2. Misappropriation or Conversion

• The accused must misappropriate or convert the property to his own use.

3. Dishonest Intention

• The act must be done dishonestly, i.e., with the intention of:

  • Causing wrongful gain to himself, or

  • Causing wrongful loss to another.

4. Absence of Legal Right

• The accused must have no legal entitlement to use or retain the property in the manner adopted.

Final Conclusion

Since the money received by the contractor from the principal does not legally belong to the sub-contractor, and the dispute arises out of contractual obligations, no criminal misappropriation under Section 314 BNS, 2023 is made out.

Bharatiya Sakshya Adhiniyam, 2023

Ans. Generally, opinion of third person is irrelevant. However, in some cases opinion of third person may be treated as relevant. According to Section 41 of Bhartiya Sakshya Adhiniyam, 2023 when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

Therefore, in the given situation, opinion of handwriting expert may be treated as relevant.

Ans. The term “Evidence” is defined under Section 2 of the Bharatiya Sakshya Adhiniyam, 2023. It substantially corresponds to the definition earlier contained in Section 3 of the Indian Evidence Act, 1872, with suitable modernization.

According to the Bharatiya Sakshya Adhiniyam, 2023, “Evidence” means and includes:

1. Oral Evidence
   All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. Such statements are called oral evidence.

2. Documentary Evidence
   All documents, including electronic records, produced for the inspection of the Court. Such documents are called documentary evidence.

Explanation:
The term evidence signifies the legal means by which relevant facts are brought before the Court for judicial determination. It consists of statements made by witnesses (oral evidence) and documents or electronic records produced before the Court (documentary evidence), on the basis of which the Court forms its conclusions regarding the facts in issue or relevant facts.

Ans. As per the Bharatiya Sakshya Adhiniyam, 2023

The principle that oral evidence must be direct in all cases is retained under the Bharatiya Sakshya Adhiniyam, 2023 and corresponds to Section 60 of the Indian Evidence Act, 1872.

Under Section 58 of the Bharatiya Sakshya Adhiniyam, 2023, oral evidence means statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. The law mandates that such oral evidence must always be direct, i.e., it must come from the person who has personally perceived the fact.

The rules relating to oral evidence are:

1. All facts, except the contents of documents, may be proved by oral evidence.

2. Oral evidence must, in all cases, be direct.

Meaning of Direct Oral Evidence:
Direct evidence is the evidence of a person who has himself perceived the fact by his own senses or has personally formed an opinion.

Accordingly, oral evidence is direct when:

1. If it refers to a fact which could be seen, it must be the evidence of a witness who says that he saw it.

2. If it refers to a fact which could be heard, it must be the evidence of a witness who says that he heard it.

3. If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says that he perceived it by that sense or in that manner.

4. If it refers to an opinion or the grounds on which the opinion is held, it must be the evidence of the person who holds that opinion.

Exception:
The opinions of experts expressed in treatises commonly offered for sale, and the grounds on which such opinions are held, may be proved by producing such treatises if the author is dead, cannot be found, has become incapable of giving evidence, or cannot be called without unreasonable delay or expense.

Further Provision:
Where oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

Conclusion:
Thus, the Bharatiya Sakshya Adhiniyam, 2023 emphasizes that oral evidence must be first-hand, personal, and direct, and hearsay evidence is generally excluded to ensure reliability and accuracy in judicial proceedings.

Ans. Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the distinction between Primary Evidence and Secondary Evidence has been retained in substance, corresponding to Sections 62–65 of the Indian Evidence Act, 1872.

Primary Evidence

As per Section 57 of the Bharatiya Sakshya Adhiniyam, 2023, primary evidence means the document itself produced for the inspection of the Court.

The rule of primary evidence is based on the best evidence principle, which requires that the best available evidence must be produced before the Court. If superior evidence exists but is not produced, a presumption may arise that such evidence would have gone against the party withholding it.

Secondary Evidence

Section 58 of the Bharatiya Sakshya Adhiniyam, 2023 defines secondary evidence and specifies the forms in which it may be given. Secondary evidence means and includes:

1. Certified copies given under the provisions of law;

2. Copies made from the original by mechanical processes which ensure accuracy, and copies compared with such copies;

3. Copies made from or compared with the original;

4. Counterparts of documents as against the parties who did not execute them;

5. Oral accounts of the contents of a document given by a person who has himself seen it.

Admissibility of Secondary Evidence