Jurisprudence Notes

What is Jurisprudence?
Jurisprudence is derived from the Latin word ‘Jurisprudentia’ meaning “Knowledge of Law or
Skill in Law.”
John Austin defines jurisprudence as “The philosophy of positive law.” Positive law is the law
laid down by a political superior who commands obedience from his subjects.
Holland defines jurisprudence as “the formal science of positive law.” Positive law refers to
general rule of external human action, enforced by a sovereign.
Jurisprudence is the study of the general principles, theory, nature and philosophy of law. It
attempts to answer the question “What is law?”
It concerns itself with laws and the principles that lead courts to make the decisions they
do. It deals with ethical questions concerning the administration of justice within a society.
The study of jurisprudence makes explicit

• The nature of law
• Different sources of law
• The basic principles upon which the rules of law are made
NATURE OF LAW
What is law?
Holland: Law is the general rule of external human action enforced by a sovereign political
authority.
Green" Law is a system of right which the state endorses
Salmond: Law is the body of principles recognised and applied by the state in the
administration of justice.
Origins of English Common Law
English common law emerged from the changing and centralizing powers of the king during
the Middle Ages. After the Norman Conquest in 1066, medieval kings began to consolidate
power and establish new institutions of royal authority and justice. New forms of legal action
established by the crown functioned through a system of writs, or royal orders, each of
which provided a specific remedy for a specific wrong. In these cases, a further appeal to
justice would have to be made directly to the king. This difficulty gave birth to a new kind of
court, the court of equity, also known as the court of Chancery because it was the court of
the king’s chancellor. Courts of equity were authorized to apply principles of equity based on
many sources (such as Roman law and natural law) rather than to apply only the common
law, to achieve a just outcome.
An example is the writ of habeas corpus, which protects the individual from unlawful
detention. Originally an order from the king obtained by a prisoner or on his behalf, a writ of
habeas corpus summoned the prisoner to court to determine whether he was being
detained under lawful authority. Habeas corpus developed during the same period that
produced the 1215 Magna Carta, or Great Charter, which declared certain individual
liberties, one of the most famous being that a freeman could not be imprisoned or punished
without the judgment of his peers under the law of the land—thus establishing the right to a
jury trial.
William Blackstone’s (1723-1780): Commentaries on the Laws of England was the first
systematic and analytic thesis on English common law. Blackstone’s work now functions as
the definitive source for common law precedents.
Common Law v Civil Law

The two major law systems prevalent in the world today are common law and civil law.
Jurisprudence Notes: A project of EXCELLENCY CLUB, SFI & STUDENTS UNION 2018-19,
GOVT LAW COLLEGE, EKM(KOCHI)
Different types of Law
Civil Law Criminal Law
Criminal proceedings are against criminal

Proceedings against civil wrongs such a tort,
offences such as murder, theft, dacoity,
and contractual obligations
and other crimes
Civil Proceeding results in a judgment for

Results in punishments such as fines,
damages, injunction, restitution or specific
imprisonment, death etc..
rights, or other civil reliefs.
According to Salmond, “the basic objective of a criminal proceeding is punishment and the
usual goal of a civil proceeding is not punitive’.
Comparative Law
Comparative law is the study of various notions, doctrines and institutions existing in
different legal systems.
One good example of comparative jurisprudence is the Indian Constitution, which is inspired
from multiple sources and multiple legal systems, such as:
1. Parliamentary democratic system from the UK
2. Directive Principles of state policy from the Irish constitution
3. Emergency provisions from Hitler’s German Reich
Origin and Growth of Administration of Justice

The origin and growth of administration of justice run synonymous the origin and growth of
man. In modern civilized societies, it has evolved through stages.
• STAGE 1: When society was primitive, self-help was the only recourse. The wronged
person proceeded physically against the wrongdoer with the help of his friends or relatives.
• STAGE 2: The early stage was rudimentary in nature, and its functions where only
persuasive in nature. It did not have enforcing power by which it could punish the
wrongdoer.
• STAGE 3: The state became strong and mature, and could redress wrongs by punishing
wrong-doer and forcing them to pay compensation.
Various branches of administration of justice
Administration of Justice means enforcing justice according to law.

Administration of Justice is one of the primary functions of the State. The main function of
the administration of justice is the protection of individuals' rights, enforcement of laws and
punishment of wrongdoer.
The administration of justice is divided into two broad areas: Civil justice and criminal
justice.
Civil justice mainly aims at enforcement of rights of individuals. Civil justice enforces rights
granted to individuals by various legislations such as Contract Act, Partnership Act, Sale of
Goods Act, etc. For example, if a person is dispossessed of property, he may call on the civil
court for relief.
The civil courts, which tries such cases tries to enforce the right of the wronged party. If
ensuring such rights become impossible, the court awards compensation or damages. Some
of the reliefs delivered by civil courts are
• Injunctions for specific performance
• Damages
• Delivery of possession of land
• Decree of divorce
Criminal justice deals with public wrongs. Some of the common crimes are murder, attempt
to murder, assault and battery, and more. These crimes are regarded as crimes against the
society at large, even if targeted to any specific individual. The wrongdoer is punished in
many ways, based on the different theories and types of punishment.
Some crimes may attract both civil and criminal wrongs. Eg: defamation.
JUDGMENTS
Judgment is the ability to make considered decisions or come to sensible conclusions
In law, a judgment is a decision of a court regarding the rights and liabilities of parties in a
legal action or proceeding. It provides the court’s decision and also the court's explanation
of why it has chosen to make a particular court order
The judgment consists of:
1. Summary of arguments of both the parties
2. The law of the land
3. Previous judgments on the issue
4. Conclusion
5. Reasons for arriving on that conclusion.
Types of judgments
Default Judgment:
Judgment rendered in favour of one party based on the other party's failure to take action.
Default judgments are commonly used where the defendant fails to appear before the court
or submit a defence after being summoned. A default judgment grants the relief requested
by the appearing party and does not require extensive factual or legal analysis from the
court.
Consent Judgment (also known as "agreed judgment"):

A consent judgment is a settlement agreed upon by the parties and authorized by a judge.
This is common in USA, mostly for antitrust and environmental cases. It is not possible to
apply consent judgment in criminal law.
Declaratory Judgment:
Declaratory judgment is a judgment that determines the rights and liabilities of the parties
without enforcing a judgment or otherwise requiring the parties to do anything. A
declaratory judgment may be useful where the parties have differing views about their
rights and duties or are wishing to clarify them without seeking any other remedy.
Interlocutory Judgment:
Interlocutory judgment is an intermediate or interim judgment providing a temporary
decision on an issue that requires timely action.[ Interlocutory orders are not final and may
either not be subject to appeal or may follow a different appeal procedure than other kinds
of judgments.
Reserved Judgment:
Reserved judgment is a judgment that is not given immediately after the conclusion of the
hearing or trial. When a court reserves the judgment, it means the matter has been kept in
abeyance for a while. This is done after all the parties have completed their arguments and
all the written submissions have been filed in the court.
The judges reserve a judgment so they can write a judgment, which may extent into many
volumes. Judges need time to refresh in their memory, the arguments of each party, do
research by reading previous judgments and judgments on similar issues in other countries
and finally think about the reasons for arriving on a particular conclusion. This entire
exercise is very laborious and time consuming. A reserved judgment may be released days,
weeks, or even months after the hearing. In 20122,Justice Ganguly, who was hearing the
2G scam remarked no judgment should be reserved for more than three months.
Summary Judgment:
an accelerated judgment that does not require a trial and in which the court's interpretation
of the pleadings forms the basis of the judgment. For a summary judgment, the court will
consider "the contents of the pleadings, the motions, and additional evidence adduced by
the parties to determine whether there is a genuine issue of material fact rather than one of
law."
Vacated Judgment:
A judgment of an appellate court whereby the judgment under review is set aside and a
new trial is ordered. A vacated judgment is rendered where the original judgment failed to
make an order in accordance with the law and a new trial is ordered to ensure a just
outcome. The result of a vacated judgment is a trial de novo.
Concurring, Minority and Dissenting Judgments

If more than one judge is deciding a case, the judgment may be delivered unanimously or it
may be divided into a number of majority, concurring, plurality, and dissenting opinions.
Only the opinion of the majority judgment is considered to have precedent-setting weight.
Majority opinion: the opinion of more than half of the judges deciding a case. This opinion
becomes precedent for future cases as it represents the views of the majority of the court.
Concurring opinion: the opinion of a single judge or judges that agrees with the final
outcome of the majority opinion but disagrees in whole or in part with the reasoning.
Dissenting opinion: the opinion of a single judge or judges that rejects the conclusions of
the majority decision in whole or in part, and explains the reasons for rejecting the majority
decision.
DOCTRINE OF OBITER DICTIUM
Obiter Dictum is an incidental remark. It is a judge's expression of opinion uttered in court

or in a written judgement, but not essential to the decision and therefore not legally binding
as a precedent. A judicial statement can be ratio decidendi only if it refers to the crucial
facts and law of the case. Statements that are not crucial, or which refer to hypothetical
facts or to unrelated law issues, are obiter dicta
Courts may nevertheless consider obiter dicta in opinions of higher courts. Dicta of a higher
court, though not binding, will often be persuasive to lower courts.
DOCTRINE OF RATIO DECIDENTI
Ratio decidenti, meaning “the reason,” is the the rule of law on which a judicial decision is
based. It is the legal rule derived from, and consistent with, the legal, moral, social, and
political reasoning within a judgment on which the outcome of the case depends.
The ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction, in
common law countries, through the doctrine of stare decisis. As such, ratio decidendi is one
of the most powerful tools available to a lawyer. Factors that can strengthen or weaken the
strength of the stair decisis in applying ratio decidenti of one case to another case include:
1.Rank of the court (Supreme Court versus an appellate court)
2.Number of issues decided in the case (multiple issues may result in a so-called "multi-
legged holdings")
3.Authority or respect of the judge(s)
4.Number of concurring and dissenting judges
5.New applicable statutes
6.Similarity of the environment as opposed to the age of the holding
Merits and demerits of administration of justice in accordance with the law

The social nature of man inspires her to live in a community. Community living however
leads to conflict of interests, and this gives rise to the need for Administration of Justice.
One of the fundamental duties of state, and in fact, a major reason why the state came into
existence in the first place is to dispense justice and enforce laws. If the state is absent or
weak, there is no authority to regulate crime and impart punishment to the criminals. In
such a state, the society descends into private vengeance and anarchy.
The administration of justice is a natural corollary to the growth in the power of the political
state. Administration of Justice is a function of the state, and law is the instrument the state
uses to dispense justice. Courts dispense justice in accordance with the law in force, as
accepted by the state.
Such a system of legal justice has both advantages and disadvantages.
Advantages of Legal Justice
According to John Salmond, administering justice according to fixed legal principles has the
following advantages:
1. Uniformity and certainty: Law offers fixed principles. Everyone, including the common
people and the judges can know with certainty what is right and wrong according to the law,
and the punishment for each wrong. Such laws and punishments may be enforced
uniformly.
2. Impartiality: Administering legal justice in accordance with law ensures impartiality and
objectivity. There is no ambiguity, and the scope for discretion and bias is minimised.
Without law, judges are left to adjudicate by what they feel, and could be influenced by a
whole set of relative factors. Pre-determined provisions of law ensures objectivity, as such
law is not made keeping in mind any specific case or to suit the convenience of any
particular person.
3. Collective Wisdom: Rules of Law represent collective wisdom of the community, for such
rules are invariably formulated after thought-out opinion. By applying the rules, judges are
actually applying the collective wisdom of the community. Individual whims and fancies are
not reflected in the judgment of the court that follow the Rule of Law.
According to Lord Coke “The wisdom of the law is wiser than any man's wisdom.”
Disadvantages of Legal Justice
As the adage goes “what is just may not be legal.”
1. Rigidity: Law is rigid, and at times such rigidity lends an air of impracticability. Often law
fails to conform itself to the requirements of unforeseen classes of cases. The complex
conditions of the society do not allow law to be framed to conform to all the sections all the
times.
2. Lag/Inflexibility: The law is often slow to catch p with technological and other changes. A
case in point is the proliferation of cybercrimes, for which the IPC, drafted in pre-
Independence days is inadequate. Revisions in the relevant laws have been slow, and in any
case such revisions are not dynamic to match the dynamic and fast-paced developments of
the wider society.
3. Conservative nature of law: Most lawyers and judges favour status-quo or continuation of
the existing laws. This creates a situation where very often laws become static and they do
not respond to the progressive society because of the conservative nature of law.
4. Technicalities/Formalism: Legal Justice is full of technicalities and formalities. Often the

judges are constrained by the letter of the law, when the wider spirit of the law is ignored.
Very often, cases are won and lost on technical grounds (such as statue of limitations), with
cant regards to justice.
5. Complexity of law: Sometimes, the laws are immensely intricate and complex. This
causes difficulty in Interpretation of Statutes.
According to Salmond “law is without doubt a remedy for greater evils yet it brings with it
evils of its own”.
Sources of Law
According to Austin, there are three broad sources of law
1. Formal sources: Laws promulgated by the sovereign, or legislation
2. Legal sources, or rules which developed over the ages, and which acquire the force of law
I. Precedents
II. Customs
III. Conventions
IV. Professional Opinions of eminent jurists
V. Agreements or Consensus
3. Historical sources, such as un-authoritative writings
Keaton has classified the sources of law as follows:

1. Binding sources: legislation, precedent and customs
2. Persuasive sources: professional opinions, natural principles of equity. These sources set
in only when there is no binding source available on a matter.
HISTORICAL SOURCES
Historical sources have no formal recognition by law, and are not an authoritative source. It
operates mostly indirectly, through personal laws and customs.
The biggest examples of historical sources are religion and mores. Duties of individuals to
society, compulsory rules governing different people etc in ancient times, the caste based
rules are all historic sources.
LEGISLATION
Legislation = Promulgation of legal rules by an authority, who has the power to do so. It is
the most important source of law.
‘Legis’ means law and ‘latum’ means making
Salmond defines legislation as “the source of law which consists in the declaration of legal
rules by a competent authority.”
How different schools of thoughts regard legislation as a source of law:
• Analytical-Positivist School of Thought:

Law is a statute and legislation is the normal source of law making. Majority (like Austin)
believe legislation is the ONLY source of law.
The majority of exponents of this school do not approve that the courts also can formulate
law. They do not admit customs and traditions as source of law.
• Historical School of Thought

They do not regard legislation as an independent source of law.
Legislation is the least creative of the sources of law
Purpose of legislation is to give better form to customs and traditions
Types of Legislation
Direct v Indirect Legislation
Direct legislation = laws enacted by the legislative body, such as parliament
Indirect legislation = Laws passed by some other body than the legislature, mostly through
power granted by the legislature.
Supreme v Subordinate Legislation
Supreme Legislation = Legislation made by the sovereign power of the state. For eg:
Parliament is the sovereign power in Britain and India, whereas the king is the sovereign
power in Saudi Arabia.
According to Austin “Law is the command of the sovereign.”
Subordinate Legislation = Legislation made by any other authority other than the sovereign
or supreme authority. Usually the supreme authority delegates powers to make subordinate
legislation.
Subordinate legislation is of the following types:
Type Description Examples
The supreme authority confers

power on a group or entity to
1 Autonomous Law Universities, Railways
frame laws on a specific area or
domain
Powers given to judiciary to make Code of Conduct, High
2 Judicial Rules
rules for regulation of procedure Court rules of procedure
Local Laws Local Panchayati raj, laws made by

3 bodies given power Kochi municipal corporation on
to frame by-laws garbage collection
When one country is a colony of Pre-Independence laws of

another, laws made in the country India were subject to
4 Colonial Law
are subject to approval, alteration, approval of British
repeal etc of the mother-country Parliament
Executive made law

Laws and rules made by executive
5 (Delegated Factories & Boilers Rules
to run the government machinery
legislation)
Legislation delegated to local Building rules, waste

6 Municipal legislation bodies, such as power to make disposal rules and
zoning, enforce one-way etc regulations
All subordinate legislation, except colonial law, is indirect legislation.
V Sudheer v Bar Council of India: Bar Council training rules must have a statutory basis
or peg. Without such backing the rule will have no basis and will be invalid.
Delegated Legislation
Delegated legislation is law made by the executive under the powers granted to it by the
supreme legislative body (which is the Parliament in India and Britain’s context)
The main function of the executive is to enforce the law. In case of delegated legislation,
executive frames the provisions of law as well. The main purpose of such legislation is to
supplant and not to supplement the law.
Delegated legislation may be in the form of

• Provisional Orders or Special Orders
• Provisional Rules
• Bye-Laws and Regulations
The practice of delegated legislation started in England, in 1832, to effectively deal with the
ever expanding body of administrative rules. Initially delegated legislation was confined to
local self-government, and later its scope expanded to encompass all facets of the executive
organ of the state.
Codification of Laws
Codification is the systematic process of collection, compilation and arrangement of laws, to

prevent inconsistency and overlapping. Codified law is highly structured, and has uniformity.
In India, the modern process of codification started in 1833, when the East India Company
established the first law commission, with Lord Macaulay as the Chairman. The work was
completed by the second law commission, established in 1853. The third law commission,
established in 1861 took the task further. The result of these efforts were a slew of
legislation which survive till date, such as Indian Evidence Act, transfer of Property Act,
Indian Contract Act, and more.
PRECEDENT
Precedent is a set pattern guiding future conduct.
In legal terms it is a principle or rule established in a previous legal case that is either
binding on, or persuasive for a court, when deciding subsequent cases with similar issues or
facts.
Black's Law Dictionary defines Precedent as "rule of law established for the first time by a
court for a particular type of case and thereafter referred to in deciding similar cases."
Until the 19th Century, reported court precedents were the major source of law in common
law countries.
Operation of Doctrine of Precedent

Two basic rules of the doctrine of precedent:
1. Each court is absolutely bound by the decisions made by the court above it.
2. Higher courts are bound by their own decisions
Elements needed for a precedent to work.

• Clear cut hierarchy of the courts
• Efficient and accepted system of law reporting. Reports compile and publish decisions, and
are a valuable part of legal literature.
Types of Precedent
Binding (Authoritative) Precedent:

Judges must follow the precedent whether they approve of it or not.
Under the English legal system, judges are bound by a decision reached in a previous case.
This is the doctrine of binding precedent.
Lower courts are bound by the precedent set by higher courts within their region. In India,
decisions for SC have binding precedence for other courts.
In contrast, in civil law countries, the judges take case law into account, but are not obliged
to do so. The decisions may be persuasive but are not binding, and judges may consider the
precedent only in terms of principle.
• P Ramachandra Rao v Karnataka (2002): Seven judge bench of SC held bench of a lesser
strength is bound by the view taken by a larger bench.
• Food Inspector v Sukumaran Nair (1989): Under Art 141 of the constituition, law declared
by SC binding on all courts in India. Law issued by HC is binding on all courts within its
jurisdiction.
Conditional Authoritative Precedent:
The precedent is normally binding, but the judge may disregard it in limited circumstances,
with due reason. For eg, a decision of the Kolkata High Court is a conditional authoritative
precedent for a sessions judge in Kerala. He may disregard t in limited circumstances,
explaining the reasons.
Persuasive Precedent
Judges are under no obligation to follow the precedent, but they take the precedence into
consideration when deciding on the case. Some examples:
• Cases decided by lower courts, by peer or higher courts from other geographic
jurisdictions, cases made in other parallel systems (for example, military courts,
administrative courts),
• Treatises or academic law reviews
• Opinion of dissenting judges in cases decided by a multi-judge panel that result in a split
decision.
. A "case of first impression", courts often rely on persuasive precedent from courts in other
jurisdictions that have previously dealt with similar issues. Persuasive precedent may
become binding through its adoption by a higher court.
Original Precedent
Original precedents establish new principles of law, and become source of law for
subsequent laws. One good eg is Donoghue v Stevenson (1932), which established the
precedent manufacturer is liable to the ultimate end-customer.
Declarative Precedent
Declarative precedents retaliate a recognized principle of law. Judges do not create or
change the law, rather they ‘declare’ what the law has always been. For eg, in Mohri Bibi v
Dharmadas Ghosh (1903), Privy Council declared minor’s contract is ab initio void.
The main proponents are Coke and Hale, who believe Judicial decisions are not decisions of
law, but proof of what law actually is
Blackstone opines: Judicial decisions are the best manifestation of common law customs
How Precedents are established: Inductive v/s Deductive Method
INDUCTIVE METHOD DEDUCTIVE METHOD
Judge reviews previously decided cases of similar

Judge looks only at the law laid
nature, by their own or superior court, deduce general
down by the code, and not
rules from such cases, and decide on the basis of such
previously decided cases.
rules.
Mostly applied in civil law

Mostly applied in common law countries
countries
Delivers consistency, with similar cases, with similar Outcome depends on how judge
facts yielding similar results apply law to a particular case.
How Precedents are Applied
Principle of Stair Decisis

The principle by which judges are bound to precedents is known as stare decisis or judicial
precedents. Under the doctrine of stare decisis, a lower court must honour findings of law
made by a higher court that is within the appeals path of cases the court hears. Case laws
are the set of decisions cited as precedent.
"Super stare decisis"

"Super stare decisis" is a term used for important precedent that is resistant or immune
from being overturned, without regard to whether correctly decided in the first place.
Precedents in Various Legal Systems:
Roman Law:
Roman Law did not have any definite procedure or theory to handle precedents. However,
attempt was always made to ensure uniformity in judicial decisions, esp. in procedural law.
In France and other Civil law countries, the guiding principle is Justinan’s dictum “decisions
should be based on law, not on precedent.” As such, lower courts are not bound by
decisions of superior court, and courts are not bound by their own decisions either. The
decisions made by higher judiciary however do carry a great degree of respect.
German is an exception to the standard Civil Law practice of not attaching too much
importance to precedents. A number of statues direct lower tribunals to follow the decisions
of the higher tribunals, and courts to allow their won precedents.
English Common law:

English common law attaches great authority to precedents.
Bracton’s treatise contains reference to 500 decided cases, and is the earliest known report
in England.
The practice of publishing year book, and citations started in the 14th century.
Coke’s Reports played an important role in developing the doctrine of precedent.
Eminent jurists such as Vaughan and Lord Mansfield laid down several rules regarding the
doctrine of precedent n 18th and 19th century.
The doctrine of precedent assumed its present shape in latter half of the 19th century.
Decisions of the House of Lords are binding on all courts, and on itself. London Street
Tramways v LCC (1989) establishes that decision of the House of Lords on a point of law is
conclusive upon the house afterwards.
Decisions of the High Court create biding precedents for court of first instance (County
courts and Magistrate Courts).
However one High Court judge is not bound by decisions of another judge in the same
court. Likewise, a judge may refuse to follow his own decisions given earlier.
Divisional courts are not bound by earlier decisions of judge of High Court. However it
cannot overrule a decision made by judge of High Court.
Decisions of Divisional court are authoritative than decision of single judge. Single Judge is
not bound by decision of Divisional court, but its decisions are nevertheless respected
greatly, to the extent it has assumed an almost obligatory status.
All lower criminal courts are bound by decisions made by Court of Criminal Appeal. The
Court of Criminal Appal is bound by its own earlier decisions. However, these restraints do
not apply when liberty of a person is in question. In R v Taylor, the court decided “if it has
become evident the law has either been misapplied or misunderstood in a previou case, the
court has a duty to reconsider the earlier decision.” However, for such exception to be
invoked
1. The liberty of the subject should be involved. Thus, courts can reconsider a precedent
which resulted in a conviction, but cannot reconsider a precedent which results in acquittal
2. Only a full court (five or more judges) can reconsider the precedent. Lord Goddard
however allows a court with only three judges to reconsider.
The Court of Appeal is of same rank s Court of Criminal Appeal, and as such one is not
bound by the decisions of the other. However, they are bound by their own decisions.
The landmark Young v Briston Aeroplane (1944), court laid down some points

1. Court of Appeal is bound by its own decisions
2. Full court has NO greater powers than any divisions of th court – full court is bound by
decisions made by divisions of the same court
3. Decisions of the court re binding on courts of “coordinate jurisdiction” as well.
However, the case also established three major exceptions:

1. In case of two conflicting decisions, court can decide on its own which one to follow
2. Court can refuse to follow its own precedent, if it is convinced such a decision will not
stand in the House of Lords (on appeal)
3. Court not bound to follow a decision if it is convinced the decision was made “per
incuriam” – or statue which would have impacted the decisions was not brought to attention
of the court.
Doctrine of Precedent in India

In ancient India, the judicial system was not structured and informal. However there seems
to be some importance attached to precedents. Ancient Indian text suggests “that path is
the right one which has been followed by virtuous men. “Precedent did not develop in
medieval India either.
Precedents came to India with the establishment of British rule, when East India Company
started administering justice according to “personal law “of parties. The decisions of pundits
and moulvis in dispensing personal law were taken as precedents for future.
The British established a clear hierarchy of courts and made every court bound by the
decisions of its superior court, thereby establishing doctrine of precedent in India. The
decision of Privy Council was binding on all courts.
Sn 212 of the Government of India Act, 1935, which established the federal Court, also
made provisions that decisions of superior court shall be binding on the courts below.
Supreme Court
Decisions of Supreme Court are binding on all other courts, as per Article 141 of the
Constitution.
- Being the highest court of the land, even obiter dictium is binding
- However, general observations, and statements made on matters other than law are not
binding.
- In Gurcharan Singh v State of Punjab (1972) court held no two cases are similar on facts,
and as such decisions made on question of fact could not be relied upon as precedents for
other cases.
- Supreme Court is not bound by its own decisions, as decided in Bengal Immunity Co v
State of Bihar (1955).
In Gokal Nath v Punjab (1967), which held parliament has no power to take away
fundamental rights, the SC reversed its earlier decisions of Sankari Prasad v India (1951)
and Sajjan Singh v Rajasthan (1965), SC held parliament can amend any part of the
constitution. Later in Kesavananda Bharati case (1973) SC again overruled Gokalnath case
and held parliament can amend any part of Constitution as long as the basic structure is not
altered.
High Courts
Decisions of High Courts are binding on all subordinate courts and tribunal within its
jurisdiction.
Decision of High Court outside the jurisdiction has only persuasive value
With the High Court, one bench cannot take a view contrary to decisions given earlier by
another similar bench (VRC GOMP v State of AP, 1972)
Decisions of division bench are binding on single judge. The issue should be reverted to a
division bench, if reconsideration is required.
Decisions of one division bench are binding on other division bench of the same High Court
(State of Rajasthan v Tara Chand Jain). Matter should be placed before Chief Justice, for
being placed before a larger bench, if reconsideration is required.
Union of India v. K.S. Subramanium (1976): When there is inconsistency in decision

between the benches of the same court, the decision of the larger bench should be followed.
Criticism
The main criticisms against preceedents are:
1. It stifles innovation and creativity in law. Decision made even centuries ago, in another
era, are binding even now
2. It hampers scientific development of law
3. The quest for certainty and consistency destroys the very purpose of law, as most cases
are ambiguous to apply precedents
4. Salmond opines the growth of case laws results in the elimination of judicial liberty.
Disregarding a Precedent
The following are the major ways in which a precedent is disregarded:
1. Dissent by judges. Eg: One single bench defuses to follow decision of another single
bench. But in Vijay Lakshmi Sadho v Jagish (2001), SC held one single bench is bound by
the decision of another single bench.
2. Decision per Incuriam: Decision per Incuriam is decision of a court in ignorance of an
authoritative precedent. Such decisions may be overruled by superior authority.
3. Precedent that is sub-silentio or not fully argued, which may be overturned by a higher
court..
4. Judgment based on precedent overruled by a judgment of higher court. Eg: the decision
in P Rathinam v Union of India (1994) where right to die was included with right to life
under Article 21 Right to life, and as such Sn 309 of IPC imposing punishment on suicides,
was overruled by five member SC bench in Gain Kaur v Punjab (1996).
5. Abrogating the precedent by means of a statutory law
Prospective Overruling:
Overruling a precedent declares the precedent as invalid. Normally, such overruling gets
retrospective effect. However, the doctrine of prospective overruling holds the judge would
have to apply the old (and now extinguished) precedent when deciding on an old case,
which took place before the precedent was overruled. The new ruling which overruled the
precedent applies only for future transactions.
SC applies prospective overruling in Gokal Nath v State of Punjab (1967). The SC hld
amendments to fundamental rights made before the judgment was valid, but the parliament
could not amend fundamental rights in future. In Kesavananda Bharati case, Sc overruled
Gokalnath’s case.
In SBI v Kuttapan (1998) Kerala HC held only SC has powers to effect prospective over-
ruling, and that too only on constitutional matters.
Advantages of Precedents
1. CONSISTENCY: Precedents render consistency to the process of law. Jurists such as Coke
and Blackstone support 5precedenc as it respects opion of one’s ancestors
2. CUSTOMS: Precedents are in effect application of common law customs, which in turn
reflects the spirit and will of the society at large
3. FLEXIBILITY: Salmond said that “Case laws enjoys greater flexibility than statutory law.
Statutory law suffers from the defect of rigidity. Courts are bound by the letter of law and
are not allowed to ignore the law.”
4. SAVES TIME: Judges do not have to “reinvent the judicial wheel” every time
5. PRACTICAL: Precedents are judge made laws, which apply the practical and personal side
of law
6. DEVELOPMENT: Precedents represent evolution of law, reflecting the application of law to
circumstances and situations as it evolves
Dicey said that “the morality of courts is higher than the morality of the politicians”. A judge
is impartial. Therefore, he performs his work in an unbiased manner.
Legislation v Precedent
LEGISLATION PRECEDENT
Rules and principles laid down by the Rules and principles laid down by the inductive
deductive method method
Focus is on making law – lays down the

Focus is on interpreting existing law
law in advance
General and comprehensive, prepared

Not necessarily general and comprehensive –
after due deliberations, and passes
may cater to only a specific eventuality
through several levels of scrutiny, to
surrounding the case
caters to all eventualities
Can not only create, but also abrogate When a rule is established by law, precedent
Precedent is only constructive. cannot abrogate it.
Contributes to both legal growth and legal Only contributes to legal growth. Scope for
reform reform is extremely limited, if at all.
Definite, brief, clear, and easily Not structured. One has to decipher principles
understood from the case
Easier to create – Emergence of

legislation depends only on legislative Emergence of precedent depends on litigation
intent
Jurists such as Salmond and Gray consider

Analytic jurist such as Austin and
precedent & case laws superior, as it facilitates
Bentham considers legislation superior to
organic development of law, and adapting law
precedents
to changing conditions
CUSTOM
Custom is a traditional and widely accepted way of behaving or doing something that is
specific to a particular society, place, or time. Customs acquire the force of law when they
became the undisputed rule by which certain rights, entitlements, and obligations are
regulated between members of a community.
Origin of Customs
Customs originate from

- the common consciousness of the people.
- Necessity (Holland’s view)
- Inherent nature of man
According to Salmond, custom is frequently the embodiment of principles which have

committed themselves to national conscience. It is the most visible sign of national
consciousness.
In the Common Law of England, "Long usage" must be established. It is a broad principle of
property law that, if something has gone on for a long time without objection, whether it be
using a right of way or occupying land to which one has no title, the law will eventually
recognise the fact and give the person doing it the legal right to continue.
Three stages of custom
1. The custom should be proved as a question of fact

2. The court recognizes it, and the custom becomes established as a precedent
3. Custom is embodied into a statue
Application of Customs
In civil law, customary law is a recognized as source of law, but is subordinate to both
statutes and regulations.
In many third world countries, customary law co-exist alongside common or civil law. In
Ethiopia, despite the adoption of legal codes based on civil law in the 1950s, more than 60
systems of customary law are still in force, some of them operating quite independently of
the formal state legal system.
Many countries give custom the strength of law. In India many customs are accepted by
law. For example, Hindu marriage ceremonies are recognized by the Hindu Marriage Act.
President of Kyrgyzstan Askar Akaev revitalized the aqsaqal courts of village elders in 1995,
giving these customary courts jurisdiction over property, torts and family law.
The Somali people in the Horn of Africa follow a customary law system referred to as Xeer,
which offer security in life, liberty and property in large parts of Somalia where there is no
functional government.
Roman Law:
Custom had great importance before the promulgation of Justinian’s code. However, after
the promulgation of the code, custom lost its importance. The influence of customs was
then limited to sustentative and procedural laws.
Modern civil law which derives from Roman Law, and adopted in countries such as France,
do not attach much importance to customs.
Indian (Hindu Law)

Customs had a strong role in ancient and medieval India, in moulding laws. The major
sources of Hindu family laws, including modern legislations such as Hindu Marriage Act, are
customs.
Ancient Hindu tests co-opted customs.
Smrithis included local customs of the places where it was written
The commentaries on the Smrithis were interpreted on the basis of local customs as well.
The Privy Council in British India declared “clear proof of usage will outweigh written text of
law”
Muslim Law:
Muslim law attach a inferior place to custom, but in practice the bulk of the Hanafi law is
based on customs. Many Islamic jurists opine customs not expressly disapproved by the
Prophet are valid sources of law,
English Common Law:

Customs are the bedrock of English common law. In fact, common law and customs were
considered as the same by many jurists, such as Pollock. Custom is regarded as the
“the lex non scripta” or unwritten law.
Many aspects of English family law are governed by customs even today. In fact, new
customs have been recognized and become area of law even in recent time, despite many
legislations having come into effect.
Classification of Customs
Customs may be divided into two broad categories:
1. Customs without sanction: non-obligatory customs observed any owing to pressure of

public opinion. Eg: customs that defines public morality
2. Customs with sanction: Customs enforced by the state

a. Legal Customs: Customs which have binding force of law, and enforced by courts
i. General Customs: Customs which prevail throughout the territory
ii. Local Customs: Customs enforceable only in a specific locality or area
1. Geographical Local customs: Customs applicable in a particular area
2. Personal Local Customs: Customs confined to a particular sect or community, regardless

of where they reside
b. Conventional Customs: Customs which govern parties to an agreement. These customs
are not binding owing to any legal authority, but owing to both parties agreeing to it, and
because it becomes part of the contract. Conventional customs become part of contract
when
i. The convention is well-established or well-known (eg: paying advance when renting
property)
ii. The custom should not alter the general law of the land (eg: the agreement cannot
charge usurious interest rates)
iii. The custom must be reasonable
iv. Hutton v Warrn (1836): Court held lease of agricultural land must be read subject to the
customs of that locality
Immemorial customs: Customs which have stood the test of time, and hence have some
validity
Non Immeoriable custom: customs which have not withstood the etst of time, and may be
accepted by judges only when it is found reasonable. Eg:
Essential of a Custom ACP-OC-CRP
1. Antiquity: Custom must have been in existence since time immemorial. Englsh law fixes
an arbitrary time limit: 1189 CE, the year King Richard ! ascended the throne, as time limit
to prove f a custom stands the test of antiquity.
2. Continuance: It must have been practiced continuously Acoridng to Blackstone, if the
“right” to a custom has been discontinued for however small a time, the custom ends.
However, if only the possession of custom is disturbed for any amount of tme, the custom
continues.
3. Peaceful enjoyment: The custom should not be in dispute, either in a law court or
otherwise
4. Obligatory force: Custom should be supported by general public opinion
5. Certainty: Clear proof for the existence of custom
6. Consistency: It should be definite, an not conflict with other established custom
7. Reasonableness: According to proof Allen, custom will be admitted unless it is
unreasonable. The reasonableness is at the time custom was formed, not later.
8. Public policy: Custom should confirm to public policy, and should not be opposed to the
statues and laws in place. According to English law custom will not be recognized if it is in
conflict with some fundamental principle of common law.
Adityanathan v Travancore Devasom Board (2002): A custom, even if it has existed
since time immeorial and fulfils all other requirements, cannot be accepted as a source of
law if it violates human rights, dignity, social equity and specific mandate of constitutional
laws.
When does Custom become Law?
Analytical School:
AUSTIN: Does not recognize custom as a source of law. Custom is a source of law, and not
law itself. Custom does not become law unless declared so by the sovereign. Likewise,
sovereign’s authority is superior to custom, and sovereign can abrogate a custom.
Salmond regarded custom as the embodiment of the principles of justice and public utility
which is embedded into the national consciousness of a people’. In ancient society, custom
was the sole source of law.
GRAY: Customs become valid when judges declare it so. Customs, along with statues
(legislation) and precedents)_ are the three essential sources in establishing a law.
However, the analytical school leave many questions unanswered.

1. Sovereigns power is not unlimited
2. All customs do not come before the courts, to assume legal validity
Historical School:
Custom embodies the opinion of people, the national character, and the sense of justice
which the society holds dear. Therefore approval by state is not required for validity of a
custom, and state has no power but to accept the custom.
The foundation of law lies in the common consciousness of the people that manifests itself
in the practices, usages and customs followed by the people. Therefore, for them, customs
and usages are the sources of law.
SAVINGY: Custom is per se law. Custom is justification in itself, with very existence of a
custom indicating a strong need for it. According to Savingy “Custom is a badge and not
ground of origin of positive law”
The discretion of judges are limited to interpret and mould the customs into workable
edicts.
However, the historical school is erroneous. For example, going by this school, the unjust
caste system and other form of discrimination will acquire sanctity of law, and cannot be
questioned.
Legislation v Custom
LEGISLATION CUSTOM
De facto – evolved organically, in a

De jure – source in theory
natural way
Expresses the will of the people, or

Expresses the will of the state
society at large
Generally a characteristic of mature and advanced Mostly dominant in primitive societies,

legal system, considered as superior to customs considered as inferior to legislations
Mostly concerns itself with relationship between Mostly concerns itself with relationship
people and state among people
Jus scriptum – precise, complete, and May be vague and incomplete owing
comprehensive to its natural and organic evolution
DOCTRINE OF STAIR DECESIS

“Stare decisis” means “to stand by which is decided.” It is the principle of following the rules
or principles laid down in previous judicial decisions.
Stair decesis dictates that the court must abide or adhere to decided cases. Once a law has
been determined by the appellate court to be relevant to the facts of the case, future cases
will follow the same principle of law if they involve considerably identical facts. The point
settled by a decision in court forms a precedent.
Horizontal stare decisis refer to a court adhering to its own precedent.
Vertical stare decisis refers to a court applying precedent from a higher court.
The Supreme Court usually refers to its previous decisions even if the soundness of the
decision is in doubt. The predictability afforded by the doctrine helps clarify constitutional
rights for the public. However, critics argue the doctrine occasionally permits erroneous
decisions to continue influencing the law and encumbers the legal system’s ability to quickly
adapt to change.
Nevertheless, stare decisis is not an “inexorable command.” On occasion, the Court will
decide not to apply the doctrine if a prior decision is deemed unworkable. In addition,
significant societal changes may also prompt the Court to overrule precedent; however, any
decision to overrule precedent is exercised cautiously. The doctrine is frequently overruled
by courts in international trade laws.
Schools of Jurisprudence
Historical School
Founded by: Henry Maine, the American philosopher
Propounded by: Savingy in the 19th Century
The historical school considers law as the product of the forces and influence of the past.
Law is the spontaneous expression of people over the ages.
Law is formed, and not made. Law has grown organically over the ages, in a similar way
language evolved.
Jurisprudence examines the general principles governing the origin and development of law,
over time.
This school dissects fundamental legal concepts in a historical perspective.
• Savigny propounded the “Volksgeist theory” which holds law is based upon the general
will or free will of common people. Law grows with the growth of the nation, increases as
nations develop, and dies with the dissolution of the nations. This is the root of the historical
school.
Analytical School (also known as Positive School)

Founded by: John Austin, the great English jurist
Proponents: Austin, Salmond, Holland
The analytical school considers law as the command of the sovereign.

Law is the creation of the state, and force (or ability of sovereign to enforce law) is the
essence of law.
This school considers law as it is rather than what ought to be. The school analyses law as it
exists at the given time, without being too bothered about the past of future.
It considers law from a contemporary perspective. The basic concepts of law are analysed
logically and the historical evolution is ignored.
The analytical school is inspired by

• John Austin, the father of Analytical School. He regarded only positive law as the subject
matter of jurisprudence. He separated both morals and the religion from the definition of
the law. Prior to Austin the law was based upon customs and morals but Austin reduced all
things from the definition of law.
• Bentham: He introduced legal positivism and advocated approaching law through scientific
method of experimenting and reasoning.
The majority of exponents of this school regard only legislation as the source of law. They
do not approve the courts also can formulate law. They also do not admit the claim of
customs and traditions as a source of law.
Ethical School (also known as the Philosophical School)

Proponents: Hugo Grotious, Immanul Kant, Hegal
The ethical school concerns itself chiefly with the relation of law to certain ideals which law
is meant to achieve.
Law is a vehicle to achieve justice in the society. The justification or legal restrictions come
only if it promotes freedom of individuals and justice.
The school is not considered with the historical evolution of law, or the power of sovereign
to enforce the law in present.
Rather than considering what law IS, it harps on what law ought to be. This school
considers law as a product of human reason.
• The ethical school is greatly influenced by Immanual Kant. He held ethics related to man’s
spontaneous act,whereas law relates to all such external acts where he can be compelled.
• Hegel developed Immanual Kant’s doctrine of freedom. He opined purpose of laws was to
reconcile conflicting egos in society.
Sociological School
Founded by: Auguste Comte (1798 – 1851
Propounded by: Montesquieu, Herbert Spencer, Pound
The sociological school is a synthesis of various juristic thoughts. It considers law as a social
institution or function, or an expression of human society concerning the external relations
of its individual members.
This school lays stress on the functional aspect of law rather than its abstract contents.
Every individual has to observe rules, since only by following rules he can realize all his
needs. Every individual has a private interest and social interest. Law should ensure social
interest takes predominance over private interest.
The state does not create laws but only formulates it, for the purpose of preserving social
unity and satisfying social needs.
The school uses empirical methods such as observation and experimentation to study
interrelationship between law and society
The sociological school is inspired by

• Bentham’s theory of utility, i.e., the greatest good of the greatest number.
• Montesquieu: In “L'Esprit des Lois,” he held “a system of law is a living growth and
development interrelated with the physical and societal environment.”
• Jhering’s social utilitarianism: Every rule of law owes its origin to some practical motive.
As such, law should be brought into harmony with changing social conditions. The purpose
of law is to secure the conditions of social life. Soial life is relative to the social order of the
time and place.
• Roscoe Pound’s “Theory of Interests”: Pound espouses a study of social effects of legal
institutions and doctrines, or the law in action as distinct from the law in books.
ANALYTICAL
HISTORICAL ETHICAL SOCIOLOGICAL
(Positive)
Henry Maine, Hugo Grotus,

Austin, Salmond
Savingy Immanuel Kant
What law WAS and

What law ought
how it evolved to What law IS Law is a Social fact
to BE
present state
Should be
Develops as developed to State formulates law
Develops as will of
command of ensure equity, rather than create it, to
people
sovereign justice, and achieve social needs
freedom
Rests on Law is valid only

Rests on ability of Law depends on extent
consciousness of if it promotes
sovereign to to which it fulfils social
the people at large freedom and
enforce the law needs and order
(social pressure) justice
Judge should Judge should be Judge should

Judge should consider
consider the bound by the letter consider how the
the social implications
historical context of the law and not law furthers the
and effect of the law on
when interpreting the wider spirit of ideals of justice
society
statues the law and equity
Analyses Dissects law

Compares law to Evaluates law on basis
development of law logically and
notions of justice of social needs
over the times scientifically
Disregards customs Law

Considers
Gives importance to Role of legislation is develops from multiple
legislation as the
customs as source only to articulate sources – no single
only source of
of law. customs source can said to be
law.
dominant.
Ignores the reason Does not

is not always
for the law – unable consider society
It speculates practical,
Criticism: to meet social may be
as to the ethical
Dwells on demands, gives imperfect. Law
nature of standards are
the past; legitimacy to may be needed
law relative Cause-
dictatorship racialism, to improve
effect issue:
and fascism inequity
In India, most pre-independence laws and jurisprudence were based on the Analytical
approach. Post-independence, with a greater emphasis on social consciousness, the
sociological school has gained considerable ground.
Realist School
Main exponents: Holmes, Gray and Jerome Frank.
The realist school study law as it works and functions. They emphasize more upon what the
courts may do rather than abstract logical deductions from general rules.
American Realism
American Realism is concerned with the study of law as it works and functions. It strives to
investigate the social factors that make a law, and what the courts actually do.
One of the major proponents of American Realism is Justice Oliver Wendell Holmes. The
traditional concept is to consider law as a collection of rules from which deductions can be
made. Holmes however advocated a strict distinction of law from morals.
John Chipman Gray- 1839-1915- The real relationship of jurisprudence to law depends not
upon what law is treated but how law is created. While statutes, precedents, equity and
custom are sources of law, the law itself is what the persons acting as judicial organs of the
state lays down as rules of conduct. The judges settle what fact exists and also lay down
rules according to which they deduce legal consequences from facts. What matters is how
the judge interprets the statute, custom or equity. Judge made law is the final and
authoritative form of law.
Jerome Frank, in “Law and Modern Mind” considers the textbook approach of law is
misleading as the working of the court system is uncertain and misty. Trial judges and
jurists are humans, and may have prejudices. Many of these prejudices are at a
subconscious level, unknown even to the judges themselves. These prejudices can even be
racial, religious, economic, and political or gender biased. An understanding the working of
the lower courts helps in better grasping and control over the situation. Instead of taking
precedence, emphasis should be there in training in fact-finding, evaluation of prejudices.
Karl Llewellyn recognized the functional approach to law. Both law and the wider society is
in a constant state of flux, and changes is society is faster than changes in law. Law is a
means to social ends and not an end in itself, and as such need to be judged in the light of
how far it fits the society it purports to serve. The jurist should look at courts, judges, and
citizens on what they are actually doing, without reference to what they ought to do. The
jurist must regard with suspicion whether the formally laid down rules of law actually
produce the decisions which it intends to serve.
Scandinavian Realism
Scandinavian Realism considers law can be explained only in terms of observable facts and
the study of such facts.
• Axel Hagerstrom, the spiritual father of the Scandinavian Realists opines the claims and
assertions of rights and duties is basically what a person claiming a right can obtain from
the party who is under an obligation through the process of law. Rights and duties also have
a psychological explanation found in the feelings of strength and power associated with the
conviction of possessing a right.
• Karl Olivercrona opines concepts such as command-duty, legal rights and duties are
fantasies of mind. The real reason for law is psychological pressures.
Theories of law and justice

Law is never static. If law does not grow with the development of the society, it becomes
obsolete. As such the definition and approach to law also changes with times.
Salmond defined law as “the body of principles recognized and applied by the state in the
administration of justice.”
Imperative Theory of Law (Austinian Theory)

The imperative theory of law is based on the works of John Austin, who is considered the
father of English jurisprudence.
According to Austin, “Law is the aggregate of the rules set by men as political superior or
sovereign to men as politically subject.” In short, Law is the command of sovereign.
According to Austin, Law….
a. is a Command (orders, wishes, expression of desire etc)
b. Imposing a Duty laid down by a political superior
c. Enforced or backed by a Sanction
The sovereign is the political superior whom a bulk of politically organized society obeys
habitually, and who does not himself habitually obeys some other person. Perfect obedience
is not a requirement. Sovereign is the sole source of law, and existence of law is an
unmistakable indication of the existence of the sovereign.
Commands are given by a political superior to a political inferior. The strength of the
command depends on the relationship of superior and inferior, which in turn depends on the
power which the superior enjoys over the inferior to punish disobedience.
Law is a set of general commands and rules (not a particular command), which is to be
obeyed by everybody. Laws may be divided into positive laws (Statutory Laws –
legislations) and Not Positive Laws (Customs, Traditions etc.).
To be a law, the sovereign command should be a general command. If the command

requires only a specified act or forbearance, or only obliges individual persons, it is not a
law only a particular command.
Sanctions enforce the law, and is an essential ingredient of law. Sanction in the form of
some evil is inflicted in case any of the political inferior neglects to obey the law.
Criticism of Austin
1. While Austin gives a clear and simple definition of law, he excludes ethics, custom, public
opinion, and religion from the ambit of law. All of these factors played a great role in the
origin of law.
2. Austin’s definition strictly excludes religion, and therefore excludes Hindu and Muslim
person laws, which fully trace their origin to religion, and not any sovereign.
3. Austin makes the existence of the state a precondition for laws to exist. This is
historically incorrect, as there were societies which had no political superior, and even such
societies had rules that were in prevalence. (eg stone age men).
4. Austin regards law as always general in nature. Here are several laws which are
applicable only to a particular domain. Austin’s definition also excludes international Law, or
law between sovereigns. According to Austin, International Law is simply positive morality
or soft laws.
5. Austin disregards various core elements of modern constitutional state, such as
separation of power, division of power etc. No individual body of a state can act as
sovereign or command itself.
Salmond’s Theory
Sir John Salmond built on Austin’s theory, and addressed much of the criticism levied
against Austin.
Salmond justifies Austin by saying the laws in existence prior to the existence of state were
primitive substitutes of law and not actual law. Such rules of conduct only resembled law.
For instance, while apes resemble human beings, apes cannot be actually included as
human beings.
Salmond defines law as “the body of principles recognized and applied by the state in the
administration of justice.”
Salmond recognized law may be made by legislature, but also evolve from customs.
However, these sources become law only when courts recognize and apply it for
administration of justice. Unlike civil law in continental Europe which atre statue laws (lex
scripta) English common law is essentially a judge-made law (lex non scripts).. The law of
the state is what the courts determine for the enforcement of legal rights and duties.
The ruling of the court has a binding force of law. Law may misinterpret a statue or reject a
custom.
Criticism
Unlike Austin, Salmond, recognized the ethical principles of law, and also it evolution
through customs. But his theory was still subject to criticism.
Vinogradoff heavily criticized Salmond’s definition. He said that the definition of law with
reference to administration of Justice inverts the logical order of ideas. The formulation of
law is necessary precedent to the administration of justice. Law has to be formulated before
it can be applied by a court of justice.
Bentham’s Utilitarian Theory

Jeremy Bentham (1748-1834) propounded the theory of “utilitarianism” through his popular
works “Theory of Legislation” and “Principles of Morals and Legislation.”
Utilitarianism holds something as moral or good when it produces the greatest amount of
good for the greatest number of people. Utility is the existence of pleasure and the absence
of pain. An action that maximizes utility is one that maximizes total benefits while reducing
negative consequences for the largest number of people. It is based on the doctrine of
hedonism, which holds pleasure is the chief good.
Bentham followed the Austin in regarding law as the command of the sovereign. The
possible evil of law could be pre-empted by following utilitarianism, o law-makers following
the principle of utility when making laws.
Legislation is both science and art

The science of legislation depends on realization of what is truly good for the maximum
number of people.
The art of legislation is finding means or methods to realise such objectives.
Among other things, Bentham advocated the following core precepts to achieve pleasure for
the maximum people:
• Individual and economic freedom
• Separation of church and state
• Freedom of expression
• Equal rights for women
• Right to divorce
• Decriminalization of homosexual acts
Many post-independent legislations in India, such as Kerala Land Reforms Act 1963,
Maternity benefit Act, MNERGA etc are made applying the principles of utility.
KELSEN’S Pure Theory of Law

Henry Kelsen’s (1881 - 1973) “Pure Theory of Law” is another improvement of Austin's
Positivism Theory.
Austin considers the law is subordinate to the sovereign. Kelsen considers the state is
synonym for the legal order, with no distinction between State and Law. The 'state' is
nothing but a pyramid of norms.
Unlike Austin, Kelsten brought custom also within the definition of law.
Kelsten regarded international law as a strict sense of law, whereas Austin did not rgard
international law as a law at all.
Kelsen regards Jurisprudence as a normative science and not a natural science.

Natural sciences rely on cause and effect (eg: If A is, B exists). This is not true in case of
law. Law does not describe what occurs, but is rather only a set of certain rules
Law is a set of normative rules. Every act relates to a norm (principle) which gives legal
validity to it. For eg, if A commits murder, he is to be hanged.
'Grundnorm' (ground norm) is the initial hypothesis, or the fundamental basic norm, which
is not capable of deduction from any principles of the science of law. All other norms are
derived from grundnorms in a hierarchical structure.
The law is called “pure” as it is universalist and not confined to any particular legal system.
Roscoe Pound’s Social Engineering Theory of Law

Roscoe Pound (1870-1964)’s “Social Engineering Theory” considers law as a means to
develop the society.
Social engineering is based on the theory that laws are created to shape the society and
regulate the people’s behavior. Laws are is an attempt to balance and reconcile competing
interests in society.
Pound classified various interests to be protected by law into three:
1. Private Interests / Individual Interest:

Individualistic demands or desire such as freedom of will, honour and reputation etc
Domestic relations such as institutions as family and marriage
Interest of substance such as interests of property, freedom of industry and contract
2. Public Interest
Interests of state as a juristic person and as a guardian of social interest
3. Social Interest or general security, such as general safety, general health, peace and
order etc
The work of the lawyer is akin to an engineer. Law-making is a methodological step
 Preparation and classification of an inventory of interests

 Selection of the interests which should be legally recognized,
 Demarcation of the limits of securing the interests so selected,
 Consideration of the means whereby laws might secure the acknowledged and
delimited interests
The aim of social engineering is to build a structure of society which fulfils maximum wants
with minimum usage of resources.
The Social Engineering theory is criticised for ignoring the natural evolution of law, and
restricting law to “engineering process.” The dynamic feature of law is undermined as a
result.
Natural Law or Moral Law

Natural Law refers to the principles of natural right and wrong. It is an unwritten law which
has existed since time immemorial, governing the “natural” relationship between humans.
Hericitus, an ancient Greek philosopher was one of the earliest proponent of natural law and
defined it as the order of nature, such as the sun, moons, seasons, animals all being
governed in a “natural” definite way. Socrates considered natural law as such immutable
principles.
‘Justice’ in natural law refers to all forms of rightful action. What constitutes “rightful action”
is decided by reason. Aristotle explains natural law on the basis of man’s power to reason,
which allows him to differentiate between right and wrong, or good conduct from bad
conduct. Such reason may be instinctive. Any law not in conformity with rational nature is
either irrational or immoral.
The laws of the state may not necessarily be natural law, though philosophy of Natural law
has inspired legislation throughout the course of history.
Hugo Grotius, the famous Dutch jurist, and considered as the “Father of International Law”
was a proponent of natural law. He regarded natural law as directly proportional to human
intelligence. He developed the concept of “Pacta sunt Servanda”, which means the state is
an association of the freemen joined together for the enjoyment of rights and for their
common interest. This association is a result of a contract in which people have transferred
their sovereign power to a ruler, who is bound to observe the natural law.
Immanuel Kant, the German idealist, was a proponent of free will, and based his theory
on pure reason. In his Critique of Pure Reason, he says man is a free moral agent, but is
subject to the sovereign’s laws. It is through will of the people, the sovereign comes into
existence The ultimate aim of the individual should be a life of free will and it is when free
will is exercised according to reason and uncontaminated by emotions, that free willing
individuals can live together.
George Wilhelm Frederich Hegel (1770-1831): Hegel developed the theory of ideal

dialectism, a way of investigating the truth of opinions by discussion and logical argument.
Karl Marx build on this theory and converted it into material dialectism. The first stage of
conceiving the idea is thesis which is from the standpoint of the one’s observation, a given
concept of the civilization from that standpoint. However, by the time thesis is conceived,
the opposite of idea of thesis is hidden within the idea, which becomes the anti-thesis. The
rules governing the idea would before becoming concrete and metamorphosed enter into
synthesis, new phase and the synthesis would again become thesis as the content and
structure of these rules, principles and doctrines. This is an endless circle and is true human
history.
The US Constitution is heavily inspired by natural law. The Indian constitution is also
inspired by natural law, which manifests as natural justice.
Marxist Theory of Law

The proponents of Marxist theory of law is Karl Marx (1818-1883 and Fredreich Engels.
Marx synthesized almost entire philosophical thought from Aristotle to Hegel.
Marx condemned and rejected the state and money as Bourgeois concept. He regarded the
proletariat having a historical mission of emancipating the society as a whole. Law is
nothing but a function of economy without any independent existence.
Hart’s Concept of Law

Herbert Lionel Hart (1907-92), in his work “The Concept of Law” (1961) explains
Laws are rules that may
• forbid individuals to perform various kinds of actions or
• impose various obligations on individuals.
Failure to comply with laws attracts punishments.
According to Hart, law is a system of rules and the rules are the sole basis of a legal
system. The legal system is nothing but a combination of primary and secondary rules.
The two minimum requirements which must be satisfied in order for a legal system to exist:
1) private citizens must generally obey the primary rules of obligation (laws), and
2) public officials must accept the secondary rules of recognition, change, and adjudication
as standards of official conduct
Primary rules impose duties, concern actions involving physical movements or changes
whereas the secondary rules confer powers and they provide for operations
There is no necessary logical connection between the content of law and morality. Moral and
legal rules may overlap, because moral and legal obligation may be similar in some
situations. However, moral and legal obligation may also differ in some situations.
Hart was a proponent of the Positivism school, but he was one of the major critic of Austin.
AUSTIN HART
all laws are coercive orders that impose duties or obligations on individuals laws may differ
from the commands of a sovereign, because they may apply to those individuals who enact
them and not merely to other individuals
Laws impose only duties and obligation Laws can also confer power and pevilages
The foundation of law is obedience to legally unlimited sovereign legal system requires
adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any
primary or secondary rule may be evaluated
John Rawis Theory of Justice

John Rawis. In his work “A Theory of Justice” (1971) also known as “Theory of Fairness”
approaches law through social contract. Rawls argues for a principled reconciliation of
liberty and equality
Rawis advocates
1. the society should be structured so that the greatest possible amount of liberty is given
to its members, limited only by the notion that the liberty of any one member shall not
infringe upon that of any other member.
2. Inequalities are only to be allowed if the worst off will be better off than they might be
under an equal distribution.
Essentials of criminal justice

The main purpose and object of criminal justice is to punish the wrongdoer (offender) and
to maintain law and order in society. It is the State which punishes the Criminal, and not
the victim.
The administration of criminal justice seeks to punish the offender.
In India, all offenses included in Indian Penal Code (IPC) are public wrongs. However, the
IPC does not have an exclusive list of crimes. Various other acts, such as Narcotics Acts,
Unlawful Activities Prevention Act, and more also defines various crimes and punishments
for the same.
STAGES OF CRIME
(Key Ingredients of an Offence)
The four stages to the commission of any crime are:

1. Mental element or Mens Rea (Intention)
2. Preparation for the crime
3. Action based on preparation
4. Commission of the act resulting in an event proscribed by law.
The majority of offences have two elements: mental (mens rea) and physical (actus reus),
and concurrence of the two. According to Lord Kenyon in C.J. in Fowler v. Pedget (1798)
“The intent and the act must both concur to constitute the crime.”
Criminal law does not penalize the first two stages of intention and preparation because it is
not possible to look so deep into the mind of a person to prove his inner intention. Criminal
liability will not begin until the offender has done some act which not only manifests his
mens rea but also goes some way towards carrying out it.
Levels of Culpability in Crime
Both the English and United States criminal law recognize three basic mental attitudes,
which identify the level of culpability in a crime
1. Intention
2. Recklessness
3. Criminal negligence
Intention:
The explicit and conscious desire to commit a dangerous or illegal act. For example, if a
person targets and assaults someone with the goal of inflicting harm on the victim, he
displays criminal intent. Intention is the highest degree of fault. A person who intentionally
commits a crime is guiltier than a person who acted recklessly.
• Direct intent: Where defendant embarks on a course of conduct to bring about a result
which in fact occurs. Eg D intends to kill his wife. To achieve that result he gets a knife from
the kitchen, sharpens it and then stabs her, killing her.
• Oblique intent: Where defendant embarks on a course of conduct to bring about a desired
result, knowing that the consequence of his actions will also bring about another result. Eg
D intends to kill his wife. He knows she is going to be on a particular aeroplane and places a
bomb on that aeroplane. He knows that his actions will result in the death of the other
passengers and crew of the aeroplane even though that may not be part of his desire in
carrying out the action. In this situation D is no less culpable in killing the passengers and
crew than in killing his wife as he knows that the deaths will happen as a result of his
actions.
Recklessness:
Recklessness is the decision to commit a certain action despite knowing about associated
risks. Mens Rea applies if a person is aware that his or her actions will have certain results,
but does not seem to care. For example, if a person causes injury while driving drunk, he
can be found guilty of recklessly causing harm even if he not expressly intend to hurt
anyone.
Negligence:
When a person fails to meet a reasonable standard of behavior for her circumstances. For
example, if a child is injured because his or her caretaker failed to perform her duties, she
may be guilty of criminal negligence.
For eg, if X throws a stone at a pond at hits Y who was bathing there, X is not guilty of
committing intentional hurt. He may however be charged with recklessness or negligence
Actus non facit reum mens sit rea (MENS REA)

Conviction of a crime requires proof of a criminal act and intent. Actus reus non facit reum
nisi mens sit rea: (Latin) means an act does not make a defendant guilty without a guilty
mind.
Mens Rea is intention. The act itself does not make a man guilty unless his intention was to
commit a crime. Mens rea determines whether someone committed a criminal deed
purposefully or accidentally.
The concept of mens rea developed in England during the latter part of the common-law era
(about the year 1600) when judges began to hold that an act alone could not create
criminal liability unless it was accompanied by a guilty state of mind. The degree of mens
rea required for a particular common-law crime varied. Murder, for example, required a
malicious state of mind, whereas Larceny required a felonious state of mind. To receive a
conviction, the lawyer must prove that the accused party had some intention or willingness
to end the life of the victim. If evidence shows the death to be accidental and unavoidable,
the suspect must be declared innocent and set free.
IPC does not state “mens rea,” but the spirit of mens runs through the whole of IPC. The
IPC does not negate mens rea but requires mens rea of a specific kind which differs from
offence to offence.
The various provisions of the IPC defines several crimes and also contain expressly
proposition as to the state of mind of the accused. Every ingredient of the offence, is,
therefore, stated in the definitions.
EXAMPLES OF MENS REA

Mens Rea for causing death is present• ‘A’ sets fire at night at an inhabited house with the
intention of committing robbery
No Mens Rea. So crime will only be manslaughter, not murder• ‘A’ throws a lighted match
on a compound, which creates a short-circuit and burns down an inhabited house
A is guilty of theft• ‘A’ finds a ring on a table in ‘Z’ house. A takes the ring
X has “mens rea”, but since no actus-reus is there, he cannot be charged with offence of
bigamy.• “x,” a Hindu man intends to marry during the lifetime of his wife, and enters into
a marriage believing he is committing the offence of bigamy. However, unknown to him his
wife had died before this married took place again
X is guilty. No mens rea is required for prosecution under the Prevention of Food
Adulteration Act. It is not a defence the vendor was ignorant that the article being sold is
misbranded or adulterated.• X, a retailer, sells to Y contaminated foodstuffs, which he
purchased from a wholesaler. Y get food poisoning and dies.
• A walks past a drowning person B. Person B can be saved if person A holds their hand.
Person A doesn’t hold their hand and person B drowns A is not liable, as he doesn’t owe a
duty of care. But there are some exceptions:
Mens rea is not always a mandatory requirement for a crime. In classical reasoning,
common law could not override mens rea, and as such mens rea had to be established even
if legislation gave clear cut punishment for a crime. However, of late, the reasoning has
changed, and when legislation defines an offence in absolute terms, scope of establishing
mens rea is considerably diluted.
In Sherras v. De Rutzen (1895), Lord Wright lists Mens rea as an essential ingredient in

every offence except in three cases:
1. Cases not criminal in any real sense but which in the public interests are prohibited under
a penalty;
2. Public nuisances; and
3. Cases criminal in form but which are really only a summary mode of enforcing a civil
right.
In India, SC in Ravula Hariprasad Rao v. State (1965) observed “The view that ‘no mens
rea, on crime’ has long ago been eroded and several laws in India and abroad, especially
regarding economic crimes and departmental penalties, have created severe punishments
even where the offences have been defined to exclude mens rea.”
In Indian penal Code, Mens rea is not required in

1. Strict Liability and absolute liability crimes (eg: MC Mehta case).
2. Offences against the state, i.e. waging war-S. 121, Sedition-S. 124-A
3. Kidnapping and Abduction (S. 359 and S. 363 resp.)
4. Counterfeiting of coins (S. 232).
Apart from provisions in IPC, various legislations prescribe punishment even if there is only
actus reus, and mens rea cannot be conclusively proved.
• Opium Act 1878 -> Narcotic Drugs and Psychotropic Substances Act 1985)
• Foreign Exchange Regulation Act 1947
• Prevention of Food Adulteration Act 1954
Case Laws:
• State of Maharashtra v M H George: Accused brought gold into India, in violation of
FERA. Magistrate sentenced him to one year RI, but High Court acquitted the accused as
mens rea could not be established (accused was in transit and had only omitted to declare
the gold in his possession). Supreme Court overturned the acquittal and restored the
conviction. Court held Mens rea by necessary implication can be excluded from a statute
only where it is absolutely clear that the implementation of the object of a statute would
otherwise be defeated and its exclusion enables those put under strict liability by their act or
omission to assist the promotion of the law.
• Inder Singh v State of Punjab (1972): appellant received a parcel containing fruits.
Parcel actually contained opium. Police arrested appellant, and was punished under Opium
Act 1878, for mere possession of opium, even though he had no knowledge.
• Addl Commissioner, Income Tax v D P Nath, Andhra HC observes "The doctrine of
mens rea is of common law origin developed by Judge-made law. It has no place in the
Legislator's law. It has no place in the Legislator's law where offences are defined with
sufficient accuracy…. it cannot be postulated that statute cannot alter the course of the
common law. The parliament, in exercise of its constitutional powers makes statutes and in
exercise of those powers it can affirm, alter or take away the common law altogether. "
ACTUS REUS
Actus Reus = “guilty act”
Actus Reus is the core of criminal punishment. As a general rule, unless a person has
committed the necessary ''actus reus'', he cannot be found guilty.
Actus reus is the human conduct involved in the crime, which the law seeks to prevent. An
act is a "bodily movement whether voluntary or involuntary.
The act should be prohibited by law. Actus Reus may be “positive” or crime through
committing an action, or negative or “crime by omitting to do a required action.”
The following constructs actus reus

1. Bodily movements
2. Possession. Possession of an object as a voluntary act fulfills the requirements to
establish actus reus
For conduct to constitute an actus reus, it must be engaged in voluntarily. For example, a
spasm is not an act. The contraction of the muscles must be willed. The Model Penal Code of
USA gives some example of involuntary conduct:
• a reflex or convulsion eg man striking another when he is under seizure is not actus reus,
provided there is no history of assault);
• a bodily movement during unconsciousness or sleep;
• conduct during hypnosis or resulting from hypnotic suggestion;
• a bodily movement that otherwise is not a product of the effort or the determination of the
actor, either conscious or habitual.
The prosecution must prove not only that the accused committed the offence (actus reus)
but
• He/she did it knowing that it was prohibited;
• The act (or omission) was done with an intent to commit the crime.
Deepa vs S.I. Of Police: ''Normally a charge must fail for want of mens rea but there may
be offences where mens rea may not be required. But actus reus must always exist.
Without it there cannot be any offence. Mens rea can exist without actus reus, but if there is
no actus reus there can be no crime. Even if mens rea is there, no conviction could be had
without actus reus without which there cannot be a crime.”
Theories of punishment
What is Punishment?
Punishment is infliction of penalty, and entails pain, forfeiture, chastisement or castigation

by the judicial arm of the State.
Five elements of punishment according to H.L.A Hart,
1. It must involve pain or other consequence normally considered unpleasant.
2. It must be for an offence against legal rules.
3. It must be intentionally administered by human beings other than the offender.
4. It must be an actual or supposed offender for his offence.
5. It must be imposed and administered by an authority constituted by a legal system
TK Gopal v Karnataka (2000): Court listed three approaches: punitive approach

(retributive), therapeutic approach (reformative), and preventive approach (deterrent), and
advocated the reformative approach.
State of Karnataka v Krishnappa (2000): SC opined “protection of society and deterring the
criminal is the avowed object of law, and is achieved by imposing appropriate sentence.
RETRIBUTIVE THEORY OF PUNISHMENT

Major proponents: Plato, Immanuel Kant
The purpose of punishment is retribution, and punishment is an end in itself.

The wrongdoer pays for his wrongdoing – “eye for an eye approach.”
The state inflict pain or injury on the wrongdoer to otherwise prevent private vengeance.
Punishment is a form of expiation for the sin of crime (Hegel)
Based on Code of Hammurabi‟s lex talionis, (an eye for an eye and a tooth for a tooth) –
punishment is proportionate to the crime – Just Desserts (Retributive punishment has to be
proportional to the degree of desert. The more the desert, the more the punishment should
be).
Pros:
Punishment not for what the criminal “might” do, but only for what is already done.
Punishment removes the “unfair advantage‟ that the criminal possess due to commission of
the crime.
Criticisms:
• It ignores the causes of crime
• Eye for an eye will make the whole world blind.
• Disregards the fact criminal could have been victim of circumstances
Theory of Compensation
The retributive theory has a sub-set, which is the theory of compensation. The theory of
compensation holds punishment should not only be to prevent further crime but it should
also exist to compensate the victim who has suffered at the hands of the wrongdoer.
REFORMATIVE THEORY OF PUNISHMENT

Considers crime as a disease - holds crime is committed as a result of the conflict between
the character and the motive of the criminal – crimes take place when temptation of motive
is stronger or the restraint is weak.
Reformative Theory takes into consideration the circumstances under which an offence was
committed. It believes every effort should be made to give a chance to the criminal to
improve his conduct in the future.
The main characteristics of the reformative theory are:

1. Punishment should exist to reform the criminal.
2. Judge should study the characteristics and the age of the offender, his breeding, and the
circumstances under which he has committed the offence, when awarding punishment
Chances of reformation are greater with young offenders and first offenders.
Some crimes, such as sexual offences, are more amenable to reformative treatment.
Reformation more likely to succeed in educated and orderly societies
• Rakesh Kaushik v Superintendent, Central Jail (1980). Justice VR Krishna Iyer says

"Is a prison term in Tihar Jail a post-graduate course in crime?"
• Sunil Batra v. Delhi Administration (1980): Supreme Court regarded a letter from a
co-prisoner as sufficient to invoke proceedings by way of habeas corpus. The judgment
deals at length with the shocking conditions prevailing in Indian prisons and suggests a
series of prison reforms.
Pros
Advocates punishment to be curative - A sympathetic, tactful, and loving treatment of the
offenders may reform them.
This theory disapproves execution, solitary confinement and maiming, and wants prison to
be comfortable dwelling houses - Punishment may be severe, but it should never be
degrading.
Judge should consider the following factors when awarding punishment
• Character and age of the offender
• Nature of upbringing - education and environment
• Circumstances under which the offence was committed
• Object with which he committed the offence
• Any other relevant factors.
Criticism
In countries like India, with millions below poverty line, prisons becoming comfortable
dwelling house may become an encouragement to the commission of crimes.
Reformation is an important element of punishment but cannot be made the sole end in
itself.
DETERRENT THEORY OF PUNISHMENT

Aims to prevent crime by giving exemplary punishment that induces deterrence through
(i) fear psychology (ii) unviability
The deterrent theory believes punishment should be determined by the character of the
crime. Emphasis is given on the crime rather than on the criminal.
The Deterrent Theory is mentioned even in the Manusmrithi. Manu said “Penalty keeps the
people under control, penalty protects them, and penalty remains awake when people are
asleep, so the wise have regarded punishment as the source of righteousness”. This theory
was vogue in medieval England, and well into the 19th century. For example, in
Elizabethean England, pick-pockets were awarded death sentence.
However, history stands testimony that deterrent effect not always leads to a decrease in
crime.
• Phul Singh v. State of Haryana (1980). 22 year old Phul Singh, overpowered by excess
sex stress, raped a 24 year old girl next door in broad day-light. HC sentenced him to four
years RI. Supreme Court reduced it to two years RI, as accused was not habitual offender.
SC observed “The incriminating company of lifers and others for long may be counter-
productive, and in this perspective, we blend deterrence with correction, and reduce the
sentence to rigorous imprisonment for two years,"
• Dalbir Singh v Haryana (2000): court advocated deterrent punishment for rash driving.
Pros
1. Acts on the motive of criminals, whether actual or potential – to make crime an ill-
bargain for the offender.
2. Rigorous punishment would deter others from committing similar crimes.
Criticism
1. Habitual criminals are hardened and exemplary punishments no longer deter them.
2. Most crimes are committed in a moment of excitement, with little consideration of the
implications, for deterrence to become a factor
3. Accommodates of inhuman punishments and torture
PREVENTIVE THEORY OF PUNISHMENT

The approach seeks to disable wrongdoer from repeating the criminal activity by disabling
his physical power to commit crime. Aims to prevent the crime by disabling the criminal
through measures such as death penalty, life imprisonment, cutting off hand, suspension of
driving license.
Harsh punishments aim to giving a warning to the society at large through exemplary
punishments. Development of prisons is based on preventive theory.
Pros:
Preventive Theory works by
1. ensuring offender will not commit similar act in future
2. deterring other prospective criminals through fear of punishment
Offers certainty of law
Criticism:
Harsh techniques may make criminal more violent.
Eye for an eye makes the whole world blind.
RETRIBUTIVE REFRORMATIVE DETERRENT PREVENTIVE
Tries to reform the Delivers Aims to

pay-back for
criminal, who exemplary prevent
the crime
Punishment remains a human punishment to offender from
committed, and
is being and probably deter others committing
also a form of
victim of from committing crimes in
expiation
circumstances similar crimes future
Disabling
Warn society
Eye for an eye Reform the offender from
crime does not
approach criminal approach doing further
pay
harm
Severe
punishment even
Punishment in Mild imprisonment,
for small
proportion to open prisons,
offences: Life
the crime probation
imprisonment,
execution etc
Supported by
Queen Elizabeth Utilitarians
In vogue theory, - Basis of such as
Plato, Kant
Salmond punishment in Bentham,
Middle Ages Justice
Holmes
Eliminates the
Justice for the Modern outlook
Sends out a criminal from
victim Improves Tries to see the
strong message the Society
society larger picture
Justice
Eye for eye Injustice to

Ignores the
makes the May actually victim Ignores
Criticism root cause of
whole world encourage crimes main causes of
crimes
blind crime
TYPES OF PUNISHMENT IN IPC

The general forms of punishment, throughout the ages, are flogging, mutilation, branding,
stoning, pillory, fine / penalty, forfeiture of property, banishment, penal servitude,
imprisonment, capital punishment, and more.
Before the IPC came into effect, the Mohammedan Criminal Law applied to both Hindus and
Muslims. The following are the various types of Punishments in Mohammedan Law.
• Qisas - Victim or his relatives inflict similar pain / punishment to the offender
• Diya - Offender can be exempted by paying money to the victim or heir of victim
• Hadd - Fixed punishment to various crimes. Judge does not have a say.
• Tazeer - Judge has the complete discretion to award punishment to the offender
• Siyasat - King, in the interest of public could award punishment to the offender
Sn. 53 of the Indian Penal Code, 1860, which replaced Mohammedian Law, lists five types
of punishment
1. Death
2. Life Imprisonment
3. Imprisonment – Simple and Rigorous
4. Fines
5. Forfeiture of Property
Life imprisonment
Before 1955, the words “transportation for life” was used. CrPC Amendment Act, 1955
substituted the words “Imprisonment for life” in place of “transportation for life”.
Imprisonment for Life means imprisonment for the whole of the remaining period of the
convicted person’s natural life. However, Sn 432 of CrPC allows government to remit the
sentence, but the reduced period cannot be less than 14 years as per Section 433-A of the
CrPC.
Imprisonment
Imprisonment is a punishment prescribed under Deterrent, Preventive and Reformative.

Imprisonment not only disables the offender from moving outside (serving the purpose of
Preventive Theory) but also sets an example for others (serving for deterrent theory). Also,
there is scope to reform the prisoner when the person is serving his imprisonment, serving
the purpose of Reformative Theory.
IPC lists two types of imprisonment – simple imprisonment and rigorous imprisonment.
** Rigorous Imprisonment ** is given for grave crimes such as murder, dacoity, rape,
sedition, house trespass, fabricating false evidence, etc. In Rigorous imprisonment, the
convicted person is put to do hard labour such as digging earth, cutting stones, agriculture,
grinding corn, drawing water, carpentry, etc. However, hard labour is not defined in CrPC or
jail manuals. Practically, it now means any work. RK Sharma, the IPS officer who was
sentenced to RI in the Shivani Bhatnagar murder case was looking after the library as a part
of his RI sentence. The Supreme Court suggested that the offenders imposed hard labour
should be paid minimum wages.
** Simple imprisonment ** is for lighter offences, such as absconding to avoid service,

obstructing traffic, causing public nuisance; eve- teasing, drunken brawls, wrongful restraint
(Sec. 341); defamation (Sec. 500) etc. In Simple Imprisonment, the prisoner has the option
whether to work or not.
Courts may also order the offender be kept in solitary confinement for any portion of the
imprisonment, but not exceeding three months at a time, (max one month if the term of
imprisonment shall not exceed six months and max two months if the term of imprisonment
shall exceed six months). Max period of solitary confinement in a single stretch is 14 days,
followed by 14 days gapo before next session can begin.
Sunil Batra v. Delhi Administration (1980), SC “Hard labour in Sec. 53 has to receive a

humane meaning.
** Indeterminate Sentence** In such a sentence, the accused is not sentenced for any
fixed period. The period is left indeterminate while awarding and when the accused shows
improvement, the sentence may be terminated. It is also reformative in nature.
Forfeiture of property
“Forfeiture” is the divestiture of specific property without compensation in consequence of

some default or act of forbidden by law.
The Courts may order for forfeiture of property of the accused in certain occasions, such as
when a person accumulates black money.
Fine
The Courts may impose fine along with or without imprisonment. IPC mentions the
punishment of fine for several offences. Section 63 of IPC says fine should not be excessive,
wherever it is not listed.
Section 66 of IPC mandates imprisonment for non-payment of fine. Imprisonment for

default of fine however shall not liberate the offender from his liability to pay the full
amount of fine imposed upon him. Imprisonment in default of fine is not a satisfaction for
the fine, but it additional punishment for non-payment or contempt or resistance to the due
execution of the sentence.
Deportation or Transportation:
A form of punishment where the criminal is put in a secluded place or in a different society.
This was practiced extensively by the British, where many criminals were deported o
Australia.
Corporal Punishment:
Corporal punishment is physical punishment, or the deliberate infliction of pain on the
wrongdoer. This punishment is abolished as per IPC but is legit in SaudiArabia, Iran and
many other countries. One notable example of this highly inhumane and barbaric
punishment is Saudi Arabia sentencing Raif Badawi's to 1000 lashes for being an atheist.
Suspense sentence / Probation
At times (Mostly in US) the courts award suspended sentence for first time offenders
committing non-heinous crimes. The court may award an imprisonment or fine, bit keep it
suspended. The person is left on probation, and his conduct and behaviour tracked. If the
conduct violates the laid down norms, or he repeats the crime, the sentence is invoked.
Community Service:
Community service or community restitution is intended to benefit the community harmed

by an offender’s crime. Judges often order offenders to perform community service in
addition to or instead of other forms of punishment, such as imprisonment, fines, or
probation. Community service may also be ordered as a stand-alone sentence or as a
condition of probation for many types of crimes.
In general, judges have broad discretion to decide whether and what kind of community
service to order for an offender. As long as the sentence reasonably protects the public’s
interests and isn’t unduly harsh, all different kinds of community service options are
available.
For instance, a judge may order a bank executive who misappropriated bank funds to
volunteer for a community organization and donate funds to that organization.
In the US, the period of community service a judge orders can’t go beyond the maximum
sentence for the crime. For example, say that state law provides that the maximum
sentence for embezzlement is ten years in prison. A judge may not sentence an embezzler
to seven years in prison and five years of community service, because the aggregate
sentence exceeds ten years.
CAPITAL PUNISHMENT
Capital Punishment is the legally authorized killing of someone as punishment for a crime.
Such a form of punishment exists in many countries of the world, including USA, India,
China, Singapore, UAE, Saudi Arabia, and other places, and is implemented in many ways,
such as death by hanging, administering electric shock, through lethal injection, death by
firing squad, beheading, and more. Many countries, such as Portugal, Germany, Greece,
Mexico, etyc have however abolished capital punishment as a form of punishment. Some
other countries such as Israel, Brazil, Peru and Kazhakistan give capital punishment only for
exceptional crimes, and not for ordinary cxrimes.
Position in India
The IPC allows death punishment, but SC has held it should be applied only in “rarest of
rarest cases.” The punishment of death may be imposed on the following offences:—
• Waging or attempting to wage war or abetting/supporting the waging of war against the
Government of India -Section 121 I.PC
• Abetment/supporting of mutiny actually committed – Sec. 132 of I.P.C
• Giving or fabricating false evidence upon which an innocent person suffers death – Sec.
194
• Murder – Section 302
• Dacoity with murder – Sec. 396 I.P.C
• Abetment/support of suicide of a child, an insane or intoxicated person – Sec. 305 of IPC
Mithu v. State of Punjab, AIR (1983): SC struck down a provision Sn. 303 of IPC which
made death penalty mandatory for murder by a life-convict.
Capital punishment is a legal penalty in India, and has been carried out in five instances
since 1995, the latest ones being the hangings of Ajmal Kasab, Afzal Guru, and Yakub
Memon. Under Article 21 of the Constitution of India, no person can be deprived of his life
except according to procedure established by law.
After the award of the death sentence by a sessions court, the sentence must be confirmed
by a High Court to make it final. Once confirmed, the condemned convict has the option of
appealing to the Supreme Court. If this is not possible, or if the Supreme Court turns down
the appeal or refuses to hear the petition, the condemned person can submit a 'mercy
petition' to the President of India and the Governor of the State.
The present day constitutional clemency powers of the President and Governors originate
from the Government of India Act 1935 but, unlike the Governor-General, the President and
Governors in independent India do not have any prerogative clemency powers.
The execution of death sentence in India is carried out by hanging by the neck till death.
The Army Act also allows shooting to death, at court martial.
Crimes Attracting Capital Punishment in India
Grave offences such as murder, rape with injuries that may result in the death of a victim
and a repeat offender, waging war against the State, and terrorism-related offences causing
death are some major crimes punishable with death under the Indian Penal Code.
Similarly, there are provisions under The Arms Act, The Narcotic Drugs and Psychotropic
Substances Act, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,
The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act
wherein capital punishment is prescribed as one of the punishments for serious offences.
The now-repealed Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities
(Prevention) Act (TADA) also contained provisions for death sentence.
On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi, the
Government passed an ordinance which applied the death penalty in cases of rape that
leads to death or leaves the victim in a "persistent vegetative state". The death penalty can
also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act,
2013.
Status of Capital Punishment in India
In Dec 2007, India voted against a UN General Assembly resolution calling for a moratorium
on the death penalty. In November 2012, India again upheld its stance on capital
punishment by voting against the UN General Assembly draft resolution seeking to end the
capital punishment globally.
Nevertheless, on 31 August 2015, the Law Commission of India submitted a report to the
government recommending the abolition of capital punishment for all crimes, except the
crime of waging war against the nation, and terrorism-related offences. The report cited
several factors to justify abolishing the death penalty, including its abolition by 140 other
nations, its arbitrary and flawed application and its lack of any proven deterring effect.
In Bachan Singh vs. State of Punjab (1980), SC made it clear that Capital punishment can
be given only in rarest of rare cases. The SC upheld death penalty for those indulging in
honour killings, and also on police officials who commit police brutality in the form of
encounter killings.
In January 2014, a three-judge panel headed by Chief Justice of India P Sathasivam

commuted sentences of 15 death row convicts, ruling that the "inordinate and inexplicable
delay is a ground for commuting death penalty to life sentence". Supreme Court of India
ruled that delays ranging from seven to 11 years in the disposal of mercy pleas are grounds
for clemency.
Person
The word “person” is dervived from Latin word “persona”
Gray defines person as “an entity to which rights and duties may be attributed.”
Natural persons: any living human being either male or female is person.
Legal persons: A legal person is any being
1. capable of possessing rights and obligation
2. acquiring liabilities
3. capable of being punished
4. capable of suing and being sued
Legal persons may be

• Natural persons
• Fictitious persons created artificially by legal fiction, and without a soul. They can be sue
and be sued. Some types of fictitious persons are:
o Corporations
o Institutions
o Funds and estates
Double capacity
English common law recognise a man many have double capacity: eg: as a trustee and as
an individual.
However, having double capacity does not give a person tp enter into a legal transaction
with himself
Double capacity must not connote double personality.
Status of animals and beasts
Animals are not persons but merely “things” because they do not possess rights and
obligations. They can neither sue, be sued, or punished. In history, cocks have been found
guilty and condemned to death for witchcraft. In ancient Hindu jurisprudence, killing
harmless cows, bulls, and some other animals were punishable. In modern law, animals get
legal rights in the following situations:
1. trespassing beasts being detained under “distress damage feasent”
2. when cruelty to an animal is a punishable offence, beasts get legal rights
3. when there is a trust for benefit of animal (eg trust for stray dogs)
Status of dead persons

Dead human beings are not persons but only “things”, as rights and obligations end the
moment they are dead. Only their testamentary wills are enforceable, subject to provisions
of the law.
Dead persons are immune from duties and not subject of rights.
Legally, a man’s corpse is a property of no one.
Statues of unborn babies

A child in womb has certain rights and inherits property, subject to his or her being
delivered alive.
1. He can claim damages after birth, for the injuries received before birth.
2. He can claim compensation for the death of father or mother in fatal accidents.
3. He inherits even his father is died before his birth. He is natural person even his birth is
only for a moment.
Montreal Tramway v Leville: court awarded damage to infant for defamity caused to her
when she was in mother’s womb, owing to negligence from railways.
Kinds of Corporation
Corporation is an artificial person
• Corporation aggregate: Group or collection of persons who become joint to accomplish a
task. Eg: registered company.
• Corporation sole: successive persons or individuals. It consists of only one person at a
time. Eg: king, postmaster general, Assistant Commissioner, or Prime Minister. A
corporation sole is an example of double capacity.
The advantages of a corporation are
1. Getting a distinct double personality independent o members, making it easier to do
transactions and having separate property
2. Limited liability
3. Perpetual succession: members may come and go, but the company runs forever, until
liquidated
4. Capacity to sue and be sued independently. However, corporation may be hld liable for
the acts of it agents, and at times directors may have to take personal liability for evil acts
done by the corporation
5. Initially it was held corporation could not acquire criminal liability. However, of late,
corporation may acquire criminal liability in case of malice. In Moore v Moore, the court held
the corporation criminally liable for the acts the branch manager did.
Legal personality of the state
The state is regarded as a legal person.
Sn 300 of the Constitution of India provides the government of India may sue or be sued.
Rights
The protection of human interest is the chief purpose of law.
A right (also known as a claim) is an interest recognized and protected by law.
Definition of Rights
Vingogradoff : Rights are the “range of action assigned to a particular will within the social
order established by law.”
Allan : The will power of a man applied to a utility or interest recognized and protected by
the legal system.
Windschield : Power or authority of a will conferred by a legal order
Roscoe Pound : Legal rights are interests recognized and administered by law.
Primary right : Rights which does not violate another’s right. Eg: right to property, the
dispossession of which does not violate another person’s right.
Sanctioning right : Right to receive pecuniary compensation from the wrongdoer. If the
court cannot enforce primary right, it would aware compensation as a sanctioning right.
Legal Rights v Natural Rights
Legal rights are powers available to an individual or a legal entity in realization or defense of
its just and lawful claims or interests against “the whole world”'
Holland defines legal right as “a capacity residing in one man to control with the assent and
assistance of the state, the actions of others.”
Legal rights associates with natural rights. The declaration of Independence of the United
States lists life, liberty, and the pursuit of happiness as natural rights. Such rights are not
dependent on the laws or customs of any particular culture or government, and therefore
universal and inalienable. In contrast, legal rights derive from some statue or legislation.
For instance, the Constitution of India grants fundamental rights. But the right to property,
earlier a fundamental right under Article 31, is now a legal right.
Law v Morality
Rights may be moral, legal, or both.
MORAL RIGHT (IMPERFECT RIGHT) or

LEGAL RIGHT (PERFECT RIGHT)
Equitable Rights
Rights recognised and protected by rule of
law. According to Salmond, a legal right is Interest recognized and protected by rule of
an “interest recognized and protected by a morality.
rule of legal justice.”
Originates through legislations and Originates in natural justice, ethical code of

contracts. a community, customs, mores etc
Violation of legal right is a legal wrong. The Violation of moral right would be a moral
act may be either ethical or unethical. wrong, but not necessarily a legal wrong
The victim can approach a court of law to

There may be no legal recourse for violation
seek recourse. – Ubi jus ibi remedium
of moral right.
(Where there is a right, there is a remedy)
Mere practice or understanding does not Caste or religion based reservation is a legal
give rise to a legal right The law may not right, but its morality is debatable Eg: Right
always be just or ethical. Example: to have sex before marriage is a moral right,
Everything Hitler did in Germany was legal but is not a legal right in Saudi Arabia
A borrows Rs 1000/- from B. Statue of limitation is three years. A’s legal right to get back
the money from B is only for a maximum of 3 years. A borrows Rs 1000/- from B. Statue of
limitation is three years. A has moral right to get back the money from B even after 3 years.
Perfect v Imperfect Rights:

Perfect rights are based on the legal maxim “ubi jus idi remedium” = where there is a right
there is a remedy. For perfect rights, remedy exists in law. When remedy is absent in law
for ay right, it is an imperfect right. Many moral rights fall under imperfect right.
Right v Might
Right is one capacity of obliging others to do or bear, by means o the strength of a third
party. Such third party may be fear of God, State, warlord, or anything else.
Might is capacity is the capacity of obliging others to do or forbear by virtue of one’s
physical strength, with the threat of death, injury etc.
Salmond lists five major characteristics of a legal right:

1. Person of inheritance: It is vested in a person who is distinguished as the owner of the
right, or the subject of it, or the person entitled to the right.
2. Person of incidence: It avails against a person, upon whom lies the correlative duty. He
may be distinguished as the person bound, or as the person of incidence.
3. Content: The content of the right obliges the person bound to an act or omission in
favour of the person entitled.
4. Object: The object or subject matter of the right relates to something in the widest sense
of that word
5. Title: Every legal right has a title, or certain facts or events by reason of which the right
has become vested in its owner.
Salmond gave following classifications of rights.
1. Positive and Negative Rights
2. Real and Personal Rights
3. Right in rem and right in personam
4. Proprietary and Personal Rights
5. Inheritable and Uninheritable Rights
Positive Rights Negative Rights
A positive right entitles its owners to have Enjoyment of negative right is complete
something done for him. Without such unless interference takes place.
1
performance, the enjoyment of the right is Therefore, majority of negative rights are
imperfect. against the entire world.
The person subject to the duty is bound to Others are restrained from doing
2
do something. something.
The satisfaction the positive right results

The position of the owner is maintained
3 in the betterment of the position of the
as it is.
owner.
There is no necessity of outside help. All

4 Object is attained with the help of others. that is required is that others should
refrain from interfering
Positive rights correspond to a Negative rights correspond to negative

5 corresponding duty. Duty is imposed on duties. The duty is imposed on a large
one or few individuals. number of persons.
Eg: right to avail free public services Eg: right to possession of property
Real Rights Personal Rights
1 A real right corresponds to a duty imposed A personal right corresponds to a duty
upon persons in general. imposed upon determinate individuals.
Available only against a particular

2 Available against the whole world.
person.
3 All real rights are negative rights. Therefore, Most personal rights are positive rights
a real right is nothing more than a right to be although in a few exceptional cases they
left alone by others. are negative.
4 Real rights are right in rem. Personal rights are right in personam.
Right in rem Right in personam
Right in respect of a thing, available Right available against a particular individual

against the whole world only.
1 Derived from the Roman term ‘actio in Derived from the Roman term ‘action in
rem’. An action in rem was an action for personam’. An action in personam was one for
the recovery of dominium. the enforcement of obligato i.e. obligation.
2 The right protected by an action in A right protected by action in personam came to

rem came to be called jus in rem. be called as jus in personam.
3 Jus in rem means a right against or in Jus in personam means a right against or in
respect of a thing. respect of a person.
4 Eg: right to ownership of property, Eg: creditors right to recover debt, right to
right to reputation claim specific performance over a contract
Proprietary Rights Personal Rights
1 Proprietary rights is a person’s right in Personal rights are rights arising out of any
relation to his own property. contractual obligation.
2 Proprietary rights have some economic Personal rights mostly relate to status, have no
or monetary value.- relates to wealth direct economic value. – related to well-being
3 Proprietary rights are transferable. Personal rights are not transferable.
4. Proprietary rights have both judicial Personal rights possess merely judicial
and economic importance. importance.
Eg: right in land, patent right Eg: parental right, conjugal rights
Inheritable Rights Uninheritable Rights
A right is inheritable if it survives the A right is uninheritable if it dies with the

owner. owner.
Principal Rights Accessory Rights

Independent rights, which exists Dependent rights, the existence of which depends on
by itself the principal right
A has rights to the unencumbered property he owns. A borrows Rs 10000/- from B by

pledging gold. B’s right to possess the gold is an accessory right
Vested Right Contingent Right
Vested right is where all factors required to confer

Rights which depend on a dfuture
the right are complete, and the person gets the
event taking place or not taking place
right to which he/she is entitled
A purchases property from B after paying the A promises to gift B a gold coin on
consideration. A has vested rights over the getting first rank. B’s right to the
property. coin is a contingent right.
HUMAN RIGHTS
Human Rights are the fundamental and inalienable rights essential for the maintenance of
human dignity.
These rights are inherent to all human beings, regardless of nationality, place of residence,
sex, colour, religion, language, or any other status.
Universal human rights are often expressed and guaranteed by law, in the forms of treaties,
customary international law, general principles and other sources of international law.
Some of the core essence of human rights are: right to life, equality before the law,
freedom of expression, economic social and cultural rights, such as the rights to work, social
security and education
The first concrete manifestation was the Universal Declaration on Human Rights in 1948.
The following are some of the rights recognized by the Declaration of Human Rights.
1. Right to life, liberty and security of person
2. No one to be held in slavery
3. Equality before law and equal protection of law, without any discrimination
4. Right to seek remedy through law
5. Right against arbitrary arrest, detention, or exile
6. Right of fair hearing by an impartial tribunal
There are 31 such rights. All States have ratified at least one, and 80% of States have
ratified four or more, of the core human rights treaties
The Indian Constitution is greatly influenced by the Universal Declaration of Human right.
India is a signatory to the declaration.
The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty
of States to promote and protect all human rights and fundamental freedoms, regardless of
their political, economic and cultural systems.
Duties
Duty is an obligation act or forbearance. It is the opposite of right.
Salmond believed every right has a corresponding duty. No right can exist without a
corresponding duty.
Salmond regards a perfect right is one which corresponds to a perfect duty and a perfect
duty is one which is not merely recognized by law but also enforced by law.
vinculum juris Means “A bond of the law.” This doctrine holds every right or duty involves
a bond of legal obligation by which two or more persons are bound together. It is a tie that
legally binds one person to another.
Austin regards duties of two types:

Relative Duty – There is a corresponding right existing in such duties.
Absolute Duty – There is no corresponding right existing.
Some other jurists however hold that a right need not necessarily have a correlative duty.
Legal rights are legal concepts, which may have correlatives which are not necessarily a
duty.
Ownership
Ownership is a legal right of a person over a thing.
Jus in re propria
Jus in re propria is the right of enjoyment or use of property in any legal manner. This is
incident to full ownership or property, and is often used to denote the full ownership or
property itself. It denotes the largest right a man can have over the object. Ownership
confers a complex set of rights, all of which are rights in rem (being good against the entire
world)
Jus in re aliena
Jus in re aliena is limited ownership, or the right over another property with some
limitations attached to it. The main type of jus in re aliena is servitudes, when a person can
enjoy another person’s property with some limitations, or not with full ownership. Other
exampels are lases and encumberances.
Jus in re aliena is right in rem over a res (thing) owned by another.
Key characterstics of ownership

According to Salmond, right to ownership property is a general, permanent and heritable
right.
Main features of ownership:

1. Right over the thing: The owner has the right to possess things that he owns.
2. Unrestrained rights: The owner normally has a right to use or enjoy the thing owned, the
right to manage it, the right to alienate it, the right to dispose it, and the right to destroy
3. Unlimited rights: The right to possess is not a right strictu sensu (in the narrow sense)
because such rights are liberties, and the owner has no duty towards others. Nobody can
interfere with the owner’s enjoyment of his ownership.
4. Unlimited duration: Ownership has the characteristic of being ‘indeterminate in duration.’
Salmond contrasted the rights of the owner with the lesser rights of the possessor and
encumbrance by stating that “the owner's rights are indeterminate and residuary in a way in
which these other rights are not”.
However, according to Austin, the law will protect or relieve the owner against every
disturbance of his right by any other person.
According to Austin
1. Owners right is not indefinite. “Sic utere tuo ut alienum non laedas” (one should not use
the land so as to cause nuisance to neighbours)
2. Right of alienation is restricted. For eg, minor can be owner, but cannot alienate his
property
3. Right is not indefinite: State may nationalize and take over at any time.
Dias on Ownership
Dias opines a person is owner of a thing when his interest will outlast the interests of other
persons in the same thing. Eg: in property, the rights of the owner last longer and is better
than the rights of the tenant.
An owner may be divested of his claims, etc., to such an extent that he may be left with no
immediate practical benefit. He remains owner nonetheless.
Kochukunju Nair v Koshy Alexander(1999): Right to ownership entails three essentuial

ingredients:
1. Right to possession
2. Right to enjoy
3. Right to dispose
Types of Ownership
Corporeal Ownership : Ownership in a physical object which may be perceived by
senses.Eg: ownership of a car, pen
Incorporeal Ownership : right or an interest, perceived by senses and are in tangible. Eg:
ownership of brand, goodwill, patent
Legal ownership : Ownership which has basis in common law
Equitable ownership: almost similar to legal ownership. Ere, ownership comes from equity
divergence of common law.
Trust Ownership Beneficial Ownership
1. There is no co-ownership. There can be co-ownership.
2. The person for whom the

2. The person on whom the responsibility lies for the
trust is created is called the
benefit of the others is called the Trustee.
Beneficiary.
3. The trustee has no right to the beneficial enjoyment 3. The Beneficiary has the full
of the property. rights to enjoy the property.
4. Ownership is limited. A trustee is merely an agent

upon whom the law has conferred the duty of 4. Ownership is complete.
administration of property.
5. Beneficial Owners remain the

5. Trusteeship may change hands.
same.
Vested Ownership Contingent Ownership
1. Ownership is vested when 1. Ownership is contingent when it is capable of being

the title is perfect. perfect after fulfilment of certain condition.
2. Vested ownership is 2. Contingent ownership becomes vested when the

absolute. conditions are fulfilled.
Absolute Ownership Limited Ownership
Ownership is absolute when possession, enjoyment, Limited Ownership is subjected

disposal are complete and vested without restrictions to the limitations of use, disposal
save as restriction imposed by law. or duration.
Possession
Possession is the right to exercise physical control over a thing.
Possession is one of the most important rights recognized by law. It is nine-tenth of law.
Salmond on Possession
Possession is evidence of ownership. The possessor of a thing is presumed to be the owner
of it, and may put all other claimants to proof of their title.
The transfer of possession is one of the chief methods of transferring ownership.
In many cases, a possessor may confer a good title on another, even though he has none
himself.
Possession exists in fact and/or in law.
POSSESSION IN FACT POSSESSION IN LAW
Possession may exist in fact but not in Possession may exist in law but not in fact. Such
fictional possession is called constructive
law Such possession is also known as
possession or possessio civilis.. Eg: creditor may
actual possession or possessio
by notice to the borrower take constructive
naturalis. (eg: when someone has
possession of equipment, effectively preventing
encroached in land; when servant has
borrower from further using the equipment
detained masters property).
pending its removal.
All possession in fact is recognized as

possession unless there is special
reason to the contrary
Types of Possession:
Corporeal Possession (possessio corporis) = possession of a material object
** Incorporeal Possession** = possession of anything other than a material object
(possessio juris). Eg: possession of a right
Immediate or direct possession = possession acquired or retained directly or personally
Mediate Possession = The possession held by one man through another. TSuch
possession may be acquired through an agent or servant who claims no interest of his own.
Concurrent or Duplicate Possession (compossessio) = Two or more persons may
possess the same thing in common, just as they may own it in common.
Elements of Possession
Possession consists of two distinct elements:
1. The mental element (animus possidenti): The intention of the possessor with respect to
the thing possessed.
2. The physical element (corpus possidenti): The external facts which the mental intention
has realised, embodied, or fulfilled itself.
Animus Possidendi:
Animus possidenti is the intent of the person to have physical control of a thing to himself.
1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as owner.
4. The animus possidendi need not be a claim on one’s own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does not
necessarily involve any continuous or present knowledge of the particular thing possessed
or of the possessor’s relation to it.
The Corpus Possessionis:

The mental claim of the possessor must be actually and continuously exercised. The corpus
possession is is the
1. physical control of the thing possessed,
2. the ability to use the thing oneself at will. Actual use of it is not essential.
Mode of taking possession:

1. by taking, without the consent of the previous owner. This may be unlawful (trespass,
encroachment), or legal (res nullus – things not owned by anyone)
2. by delivery from the previous owner (actual or constructive delivery). Constructive
delivery is of the following types:
customary practice of transferring mediate possession to whoever has immediate
possession over the object. Eg: when owner of property transfers right lessee who is in
possession.a. Tradition Bervi manu
mediate possession is tarnsfered but immediate possession is retained by owner.b.
Constitium Possessorium
Person transfers mediate possession, when immediate possession is with a third person.c.
Attornment
3. By operation of la. Eg: inheritance
X and Y are hunting. X wounds the animal, but the animal strays on to Y’s field. Who has
better claim to possession?
X has only animus possidenti (intention). Y has both animus possidenti and corpus
possessionis. So Y has a better claim to possession,.
Possessory Remedies:
The possessor is the prima face owner of the property or object. The possesor can claim
ownership against all except the real owner. Even the real owner cannot disturb the
possession, except through due course of law.
Doctrine of Jus Tertii:

Jus tertii means “third party rights.” It refers to an argument made by a third party (as
opposed to the legal title holder) to justify entitlement to possessory rights based on the
showing of legal title in another person.
If a person whose right to possession is violated by another, and he is disposed of the

property, the aggrieved person may file suit for
1. Compensation for trespass
2. Recovery of possession
3. Permanent injunction to restrain the defendant from trespassing into the property
The defendant may invoke the doctrine of just tretii, to plead neither plaintiff nor defendant
is the owner, and rather ownership belongs to a third party.
Ownership Possession
De jure relationship between a person De facto relationship between a person and a

and a thing thing
Guarantee of law Security of facts
Confers absolute right against everyone except

Confers absolute right on property
the real owner
Titles
Titles drive from roman wod “titulus”.
Title is a link between a person and an object, to establish ownership of property. It denotes
an event by which a right becomes vested in a person.
Salmond regards it as the fifth element of a legal right.

Austin rgards title not a a right itself but merely an element o a right.
There are two kinds of title:

• Original title: Creates a new right. Eg: fisherman who catch fish from the sea have original
title to the fish
• Derivative title: transfers an existing right from one person to another. Eg: the fisherman
sells the fish to a merchant.
Title emerges from vestitive facts.

Vestitive facts determines, positively or negatively, the vesting of a right on an owner. It
may be voluntary (in pursuance of will of persons concerned) or involuntary (independent of
the will of the persons concerned)
Investive facts: facts which confer title
Divestive facts: fact which cause loss of title
Voluntary vestative facts are the result of:

Act of the party, which may be unilateral or bilateral
Agreements, such as contracts and grants.
Property
Property, in its widest sense refers to all legal rights of a person in rem (against the world).
It may be divided into
Corporeal property: tangible property. Eg: land, watch. This may be divided into movable
and immovable property.
Incorporeal property: Intangible property, such as brand value. Incorporeal property is
divided introp
Jura in re aliena: encumbrances or material or immaterial things, such as lease,
mortgages, servitudes etc
Jura in re repropria, or matrial things such as patents, copyrights, trade mark etc.
A person may acquire property by

1. Possession:
2. Prescription: If a person possesses another person’s property for 12 years continuous
without claims from the other, the property passes through adverse possession
3. Agreement (of sale etc)
4. Inheritance
The SC has defined property in RC Cooper v State (Bank Nationalization case). It states
property is the highest right man can have. It signifines a beneficial right
Property includes goods or chattels, ownership of estates, intrest in corporal things
Rights in personam capable of being transferred (such as debts)
Ideology /
Popular
View What they profess
Proponent
Espoused
John Locke Libertarian view Right to property is an inalienable natural right
Private property is absolute and natural right. State may

Blackstone Classical view
acquire it for “common good” by paying compensation.
“Property is theft.” Only land under use is just

Proudhon Anarchist view occupation or ownership. Occupying or owning unused
land is the root cause of tyranny and injustice.
“Property is organized robbery.” - Landlord and

George
Socialist view capitalists enjoy the product of the labour of others;
Bernard Shaw
private property is an instrument of oppression.
Karl Marx criticized John Locke’s views on property. He

Marxian /
considered property as a social relation. He held
Karl Marx Communist
capitalistic private property as a source of poverty,
view
exploitation and alienation, and advocated its abolition.
Private property is absolute right. State’s primary role is

James
to protect private property. This is a greedy and
Madison / Elitist view
avaricious doctrine, aimed at protecting self-interest. It
Blackstone
has been criticized by Beard and many others.
Mortgage and Pledge
Mortgages and pledges are legal agreements by which a bank, building society, or any
creditor lends money at interest in exchange for taking title of the debtor's property, with
the condition that the conveyance of title becomes void upon the payment of the debt.
Sn 58 of TP Act defines mortgage as “transfer of interest in specific immovable property for

payment of money advanced by way of loan
Mortgage Pledge
Mortgages is were immovable property is

Pledge is bailment of movable property,
secured to another, in return for a
as security for debt or performance
consideration.
Lien
Lien is right to possess property belonging to another, until certain demands in respect of
the person in possession is satisfied. Salmond regards lien as a type of encumbrance.
Eg: Finder of goods has a lien on the goods until the true owner is found, and the true
owner reimburses the expenses incurred by the finder.
Lien may be caused in three ways:

• By statue
• By implied contract
• By general cause of trade
Lien ends by
• Satisfaction of debt
• Abandonment of possession
• Contract which is inconsistent with the existence of the lien
Different type of lien

General lien -> Right to retain possession of rpopery for general balance of accounts.
Usually available to bankers an other creditors
Particular lien = Right to retain rpoeprty until expenses are reimbursed. Available to bailees
Possessory lien = Right to retain possession of chattel or other property, such as lien of
innkeepers
Agents lien = Sn 221 of Indian Contract Act empowers agent to retain movable or
immovable goods or papers until amount due to himself is paid. This is subject to absence
of contract on the contrary..
Unpaid vendors lien = Seller of goods is entitled to retain possession until payment is made
Charge:
Right of creditor to receive payment out o some specific fund or out of proceeds of
realisation of specific property. Sn 100 of TP Act allows charge.
Charges may be fixed (to a specific property), or floating (not fixed, but may become fixed
on happening of a future event)
Trusts
Trusts is a kind of right in re aliena. Trust us an encumbrance in which the ownership of
property is limited. The owner can deal with it only for the benefit of the designed class of
people to whom it is intended.
Lease
Salmond defines lease as “a form of encumbrance which consists of right to possession and
use of the property”
In a lease, the owner of the property (lessor) transfers the right of possession of the
property to the lessee
The essential elements of a lease are
1. The lessor
2. The lessee
3. Transfer of right (of possession) to use an enjoy the property
4. Duration of the lease. The duration may be express, implied, or in perpuity
5. Consideration (rent)
6. Acceptance by the lessee
7. Registration (in certain cases)
ENCUMBRANCE
Encumbrance is an impediment or a burden.
It refers to any charge or claim against a property.
The common types of encumbrance are liens, easements, lease, encroachment, etc.
Servitudes
Servitude is a common law legal concept which ties rights and obligations to ownership or
possession of land so that they run with the land to successive owners and occupiers. For
instance, if there is easement right to enter property “X” enjoyed by property owner “A”,
the easement right passes on to the new owner “B”, when “A” sells “X” to “B”.
Servitudes allow people to create stable long-term arrangements on property for a wide
variety of purposes, including shared land uses, maintaining the character of a residential
neighbourhood, commercial development, preserving historic property, financing
infrastructure and for common facilities.
The owner of property burdened by a servitude cannot unilaterally terminate the servitude
or transfer the property free from the servitude without the consent of all the beneficiaries.
Whether or not they expressly agree to its terms, subsequent owners and occupiers are
bound to follow the servitude.
The three major types of servitudes are:

1. Easements: Easements allow the right to enter and use land belonging to another, for a
specified purpose
2. Covenants: Covenants obligate a landowner to do something for, or give a landowner the
right to receive something from, someone else. Eg: not cover a drain, ot construct in a way
to obstruct light and air etc.
3. Profits: Profits give someone the right to enter and remove natural resources (e.g., sand
or timber) from the land of another.
Servitudes usually, but not always, involve two or more parcels of land, one of which is
burdened and the other benefited by the servitude. The burdened parcel is called the
“servient estate” and the benefited parcel the “dominant estate.”
Easements can be either exclusive or nonexclusive.

Exclusive easement = servient owner is excluded from making some uses of the property
Non-exclusive easement = servient owner is not excluded from using the property. Eg:
common pathway.
Servitudes of property come under jura in re aliena.
Liability
Liability is the “vinculum juris” or what exists between the wrongdoer and the remedy for
the wrong. It represents the responsibility for an act or omission.
Liability is a correlative to legal remedy. As a general rule, “He who does a Wrong is 'liable'
or 'responsible' for it.”
Kinds of Liability
Civil Liability Criminal liability
Liability which comes from

Liability which comes from civil proceedings
criminal proceedings
Seeks to enforce rights vested in plaintiff (remedial Seeks to punish the wrongdoer
liability). At times penal liability also sets in. (penal liability)
Remedial liability is based on the maxim “ubi jus ibi remedium” (when there is right,
there is some remedy.” However, in the following cases, specific fulfilment is not effected:
1. Duties of imperfect obligation: Breach which gives no cause of action. Eg: time barred
debt
2. Duties incapable of specific enforcement: eg when a libel has already been committed,
the perpetuator cannot be restrained. He can only be punished.
3. Specific performance inexpedient: Sometimes the law may not resort to specific
performance, even if it is possible. Eg: law cannot force X to marry Y, even if such an
agreement exists
Essential conditions for liability to set in:
1. .There should be an act or omission on the part of the defendant. eg. There should be a
trespass, negligence etc which is recognized by law. For eg, not helping a starving man
cannot be ground for tort, but old age home starving inmates is grounds for negligence
2. Such act or omission should violate the plaintiff’s legal right (cause legal damage). The
legal damage may be injuria sine damno or damnum sine injuria.
3. Mens rea or mental element is essential in criminal law. However there is no such
essential requirement in torts.
Injuria sine damno (damage without injury)
Violation of legal right without causing any loss or damage to plaintiff – covers torts which
are actionable per se, without requiring proof of damage - Eg: trespass to land
•Ashby v White: Returning officer refused to take plaintiff’s vote. The candidate plaintiff
intended to win won, but the defendant was still made liable for violating plaintiff’s right
•Bhim Singh v J&K: Petitioner, an MLA was wrongfully detained by polcie, and deprived of
constitutional right to attend assembly session and vote therein. Court awarded him
damages
Court may hand either nominal or exemplary damage. In Bhim Singh’s case, court awarded
exemplary damage of 50,000 Rs
Damnum sine injuria (damage without injury)
Damage not coupled with unauthorized interference to plaintiff’s lawful right. Mere act of
damage is not actionable unless there is violation of legal right.
Whether the damage was with malicious intent or not is irrelevant (Mayor or Bradford Corp.
V Pickles)
No injury as there is no violation of legal rights involved
Eg: competition takes away business, property damaged by flooding due to neighbours
constructing retention wall
Malice in Law: wrongful act done intentionally, without just cause – wrongful intention.
There is no excuse for malice in law.
Malice in Fact: evil motive. Immediate intention may be different from ulterior motive.
Malice in fact is not essential to determine liability in law of torts. A wrongful act does not
become lawful even if intention (motive) is good. Likewise, and evil intention does not
matter is the act per se is not illegal.
Jus Necessitias: Necessity knows no law. Nothing is a crime, if not done without criminal
intention or without knowledge it is likely to cause harm.
NEGLIGENCE
When a person fails to meet a reasonable standard of behavior for her circumstances. For
example, if a child is injured because his or her caretaker failed to perform her duties, she
may be guilty of criminal negligence.
For eg, if X throws a stone at a pond at hits Y who was bathing there, X is not guilty of
committing intentional hurt. He may however be charged with recklessness or negligence
Negligence may be of two types

• Advertent (wilful) negligence : When the harm is foreseen but nt intended. This is same as
recklessness. Eg: rash driving
• Inadvertent negligence : when the harm is neither forsen nor intended. Eg: botched up
operation by a surgeon
Subjective Theory of negligence: According to Salmond, a negligent person does not care,
and is indifferent.
Objective theory of negligence: According to Pollock, Negligence is not about a particular
tate of mind, but about objective facts. One must take precautions against hamful results of
one’s own actions, and must refrain from unreasonably dangerous conduct.
Liability for negligence:

Generally negligence is punishable only if the intention is there. Theory of strict liability
holds man liable for his action, whether he intended such action or not. Cases relating to
escape ofdangerous things, dangerous animals or dangerous premsies attrat strict liability.
Mistake of law is not an excuse (ignorantia juris neminem excusant) but mistake of fact is
excusable and does not attract strict liability. (ignorania facit excusat.)
Obligation
Obligation means to do or not to do an act, or to perform some work or an act.
An obligation is a legal bond (vinculum iuris) by which one or more parties (obligants) are
bound to act or refrain from acting. An obligation thus imposes on the obligor a duty to
perform, and simultaneously creates a corresponding right to demand performance by the
obligee to whom performance is to be tendered.
Obligations may be civil, which are enforceable by action in a court of law, or natural, which
imply moral duties but are unenforceable unless the obligor consents.
Definition:
Salmond : "An obligation is a proprietary right in personam or a duty which corresponds to
such a right." It is “vinculum juris” or a bond / legal necessity.
Savigny : “An obligation is the control over another person, yet not over his person in all
respects”
Prof. Paton : “an obligation is that part of law which creates right in personam”
Types of Obligation:
Sole Obligation Solidary Obligation
One person on each side Multiple persons on either side
i) Several: thing owned is same, but several distinct obligations is there, creating multiple
cause of action: eg: each debtor bound to a creditor by distinct and independent vinculum
juris
ii) Joint: When only one thing is owed, but several debtors are there. Several debtors bound
to same creditor, with single vinculum juis
iii) Joint and several: Each debtor separately liable for full det, and also jointly liable for full
debt. Eg: In Indian Contract Act, liability of each promisor is joint and several
The normal and most common type of obligation Depends on specific circumstances
Eg: one creditor and one debtor Eg: two or more debtors owe the same thing to the same
creditor.
Sources of obligations
Obligations emerge from

1. Contracts: Contracts usually creates right in personam between parties, making the
arties obliged to other parties
2. Quasi-contracts: Agreements which are ot contracts, but which have the status of
contract by law or convention. Eg: money debt.
Indian Contract Act lists five type of quasi contracts
(1) Claim for necessities supplied
(2) Reimbursement of person paying money, when other person is interested
(3) Another person paying money due from another
(4) Obligation of person enjoying a non-gratitious act: Meritious obligations: services
rendered voluntarily to others voluntarily or involuntarily. Eg: A leaves goods in B’s
doorstep by mistake, and B uses it. B is now liable.
(5) Rights and liabilitis of finder of goods
3. Delictal: Tort obligations, or violation of rights of another person.
4. Quasi-delicts
Every obligation has four essential requisites
1. the obligor: obligant duty-bound to fulfill the obligation; he who has a duty.
2. the obligee: obligant entitled to demand the fulfillment of the obligation; he who has a
right.
3. the subject matter, the prestation: the performance to be tendered.
4. a legal bond, the vinculum juris: the cause that binds or connects the obligants to the
prestation.
Voluntary (conventional) obligation = arising out of the will of a person

Involuntary (obediential) obligations = imposed by operation of law are called involuntary.
Procedure
According to Salmond, “Procedural law is the branch of law which governs the process of
litigation.” It includes both civil and criminal actions or proceedings “jus quod ad actiones
pertinent.”
Statue law may be either substantial or procedural.
Substantial Law Procedural Law
Deals with rights Deals with remedies
Determines conduct and relation of Determines conduct and relationships of courts and
parties litigants
Concerns itself with the ends Concerns itself with the means
Looks into the proof to substantiate the wrong or

Decides what is a wrong or right
right
Looks into matters outside the court Regulates matter inside the court
Eg: Indian Penal Code Most parts of CrPC
The key elements of judicial procedure:

1. Summons: to give all parties an opportunity to be heard
2. Pleadings: to formulate questions of fact and law
3. Proof
4. Judgment
5. Execution
EVIDENCE
Proof v Evidence
Proof is fact which immediately convinces (eg: the sun will set at 6:30 Pm today)
Evidence: Evidence is the medium of proof. It includes all statement made by witness, and
all documents produced before court
Types of evidence
**Judicial and extra-judicial evidence

Judicial evidence is all facts brought to the court
Extra judicial evidence does not come directly under judicial cognizance, but offers facts
known to court by way of inference
Personal and real evidence

Personal evidence is testimony, or all kinds of statements
Real evidence is evidence in form of material obejcts and documents
Primary and Secondary Evidence

Primate evidence is the immediate instrument of proof. Eg: primary evidence of contents of
documents is the document itself
Secondary evidence is oral testimony or any other indirect evidence. As a general rule,
secondary evidence is not admitted when primary evidence is available.
Direct and Circumstantial evidence

Direct evidence relates to the principal fact
Circumstantial evidence is series of facts related to, but not directly connected with the
actual fact in question. Analysis of circumstantial evidence may lead to proof. Eg: X is seen
coming out of the room where the corpse of C is found.
Original and heresy evidence

Original evidence is posed by an independent probative force on its own
Heresay evidence is which I not perceived by witness on his own, but provided to him, or
stated buy someone else. This has very little value in court
INTEPRETATION OF STATUES
Gray’s definition: “ The process by which a judge (or any person) constructs from words
of a statute book, a meaning which he either believes to be that of the legislature, or which
he proposes to attribute to it, is called ‘interpretation’”
The conventional way of interpreting a statute is to seek the intention of its makers, and
apply that to the facts of the case at hand.
An interpretation of the statutory provision which defeats the intent and purpose for which
the statute was enacted should be avoided.
Interpretation is of two kinds – grammatical and logical.

•Grammatical interpretation is application to a statute of the laws of speech. It is arrived
at by referencing the words used in the statute to the laws of speech.
• Logical interpretation considers the intention of the legislature, by taking into account
circumstances connected with the enactment of the statue. It calls for the comparison of the
statute with other statutes and with the whole system of law, and also for the consideration
of the time and circumstances in which the statute was passed.
Based on these types, there are three fundamental rules suggested in the English Cases:
Literal Rule
If the meaning of section is plain, it is to be applied whatever the result.
When the words of the statute are clear, plain and unambiguous, then the courts are bound
to give effect to that meaning, irrespective of the consequences.
Golden Rule
If applying words in ordinary sense would lead to some absurdity or inconsistency with the
rest of the instrument, the language may be varied or modified so as to avoid such
inconvenience, absurdity or repugnance and no further.
If the language of the statue is capable of more than one interpretation, the construction
which reduces the legislation to futility or the narrower one which would fail to achieve the
manifest purpose of the legislation should be avoided.
Jugal Kishore Saraf v. Raw Cotton Co. Ltd: SC held that the cardinal rule of construction
of statutes is to read the statutes literally, by giving to the words their ordinary, natural and
grammatical meaning. If, however, such a reading leads to absurdity and the words are
susceptible of another meaning, the court may adopt the same. But when no such
alternative construction is possible, the court must adopt the ordinary rule of literal
interpretation.
In Uttar Pradesh Bhoodan Yagna Samiti v. Brij Kishore SC held the expression
“landless person” used in section 14 of U.P. Bhoodan Yagna Act, 1953 which made provision
for grant of land to landless persons, was limited to “landless laborers”. A landless labour is
he who is engaged in agriculture but having no agricultural land. The Court further said that
“any landless person” did not include a landless businessman residing in a city. The object
of the Act was to implement the Bhoodan movement, which aimed at distribution of land to
landless labourers who were verged in agriculture. A businessman, though landless cannot
claim the benefit of the Act.
Mischief Rule
The approach to interpret statue considering the general policy of the enactment and the
evil at which it was directed.
Newspapers Ltd. v. State Industrial Tribunal, the SC held “to get true import of the statute,
it is necessary to view the enactment in retrospect, the reasons for enacting it, the evils it
was to end and the object it was to subserve.”
In Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax, U P., the

issue was whether biscuits would come under “cooked food” which had a favourable tax
rate. Court held if an expression is capable of a wider meaning, the question whether the
wider or narrower meaning should be accepted depends on the context of the statute.
Rule of Ejusdem Generis:
ejusdem generis means “Of the same kind.”

The doctrine is used to interpret loosely written statutes. Where a law lists specific classes
of persons or things and then refers to them in general, the general statements only apply
to the same kind of persons or things specifically listed. Example: if a law refers to
automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles"
would not include airplanes, since the list was of land-based transportation. However, if the
law refers to only “modes of transportation,” t could refer to busses, automobiles, trains,
flights, bullock-carts, etc.
DOCTRINE OF RES JUDICATA

Res Judicata = a matter [already] judged; also known as “claim preclusion.”
Res Judicata is a legal doctrine which means the matter has been adjudicated by a
competent court, a final judgment is made, and the case is no longer subject to appeal. The
matter cannot be raised again, either in the same court or in a different court.
The doctrine is meant to bar or preclude continued litigation.
The principle of res judicata may be used either by a judge or a defendant.

-Once a final judgment has been handed down in a lawsuit, subsequent judges confronted
with a suit identical to or substantially the same as the earlier one will apply the res judicata
doctrine to preserve the effect of the first judgment.
-A defendant in a lawsuit may use res judicata as defense. The general rule is that a plaintiff
who prosecuted an action against a defendant and obtained a valid final judgment is not
able to initiate another action versus the same defendant where:
• The claim is based on the same transaction that was at issue in the first action
• The plaintiff seeks a different remedy, or further remedy, than was obtained in the first
action
• The claim is of such nature as could have been joined in the first action.
A very common use of the res judicata principle is to preclude plaintiffs after a class action
suit has been settled even on plaintiffs who were not part of the original action because they
could have joined that original action.
Application:
Res Judicata is an established principle in common law countries.
The Seventh Amendment to the United States Constitution provides that no fact having
been tried by a jury shall be otherwise re-examinable in any court of the United States or of
any state than according to the rules of law.
'Res judicata' does not apply to income tax and sales tax cases. In Instalment Supply (Pvt)
Ltd, Vs Union of India (1976), SC held: 'each year's assessment is final only for that year
and does not govern later years. However, it doesn't mean that tax authorities can reopen
arbitrarily a question previously settled.
'Res judicata' applies to writ proceedings as well. Once a writ petition has been moved in a
high court or Supreme Court (SC) and has been rejected there on merits, then a
subsequent writ cannot be moved in the same court on the same cause of action (M S M
Sharma Vs Sinha, 1960)
Exceptions:
There are limited exceptions to res judicata based on procedural or jurisdictional issues,
based on the authority or competence of the earlier court to issue that decision, rather than
on wisdom of the judgment.
A re-trial may be allowed if
-It is in accordance with the law and penal procedure of the State concerned
-There is evidence of new or newly discovered facts, or
-There has been a fundamental defect in the previous proceedings, which could affect the
outcome of the case.
Res Judicata v Appeal:

Res judicata does not restrict the appeals process, which is a linear extension of the same
lawsuit as the suit travels up (and back down) the appellate court ladder. Appeals challenge
a judgment whereas Res Judicata tries to start a new trial. Once the appeals process is
exhausted or waived, res judicata will apply even to a judgment that is contrary to law.
DOCTRINE OF RES SUB-JUDICE

The doctrine of res-sub-judice provides no court shall proceed with the trial of any suit in
which the mater in issue is already pending in the same or any other court. Section 10 of
CrPC provides the doctrine of res sub-judice in India. Also, once the matter is finally decided
by a competent court, no party can be permitted to re-open it in subsequent litigation.
DOCTRINE OF ESTOPPEL
Estoppel is a legal principle that precludes a person from alleging or arguing facts that are
contrary to his previous claims or actions.
The doctrine of estoppels is based on the principles of justice, fair play and good conscience.
It was evolved by equity to prevent injustice. Most common law countries have included the
doctrine of estoppel in their laws.
Sn. 115 of Indian Evidence Act (1972) establishes the doctrine of estoppel in India.
According to this section, when one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be true and to act
upon such belief, neither he nor his representative shall be allowed, in any suit or
proceeding between himself and such person or his representative, to deny the truth of that
thing.
Types of Estoppel
Equitable estoppel:
Prevents a person from going back on his word.
Collateral estoppel:
Prevents a person from going back to court on the same grievance, to prevent legal
harassment and abuse of legal resources. This is similar to Res Judicata.
Promissory Estoppel:
Used in contract law, to prevent a party to a contract from doing certain things or acting in
a certain way because it agreed not to and its contracting party relied on that
representation and then acted upon it. For example, promissory estoppel may be used by a
charity to enforce gift pledges.
The courts have identified four criteria that trigger the existence of a strong enough promise
to bring about estoppel between a promisor and a promisee:
•The promisor made a promise significant enough to cause the promisee to act on it.
•The promisee relied upon the promise.
•The promisee suffered significant damage because the promisor reneged on the promise.
•The fulfilment of the promise is the only way the promisee can be compensated.
Issue Estoppel:
If a matter has been decided by a court in one country, especially in criminal matters, then
it cannot be retried in another country. This is derived from the notion of res judicata.
Tenant Estoppel:
A certified statement by a tenant that verifies the terms and conditions and current status
of their lease. The tenant estoppel provides proof of cash flow, which is ultimately what a
potential investor or lender in a property is concerned with. The aim of tenant estoppel is to
pre-empt the tenant from taking a position contrary to what is stated in their certificate.
Estoppel is often used as a legal defence tool used when someone reneges on or contradicts
a previous agreement or claim. When a fact has been determined by a court or agreed on
by the parties to litigation, from then on, neither of the parties can call it in question.
DOCTRINE OF ECLIPSE
Eclipse means overshadow. A law becomes void not in toto or for all purposes or for all
times or for all persons but only “to the extent of inconsistency “with the superior statue
that eclipses it.
In India, the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws. It holds
such laws are not null and void ab initio but simply become unenforceable to the extent of
its inconsistency with the fundamental rights. If any subsequent amendment to the
Constitution removes the inconsistency or the conflict of the existing law with the
fundamental rights, then the Eclipse vanishes and that particular law again becomes active
again.
The Supreme Court of India introduced the doctrine of eclipse in 1955, in the case of B.
Narain vs. the State of MP. Petitioners carried on business as stage carriage operators of
Madhya Pradesh, on strength of C.P. & Berar Motor Vehicles (Amendment) Act, 1947. The
government moved to create a monopoly of the motor transport business in its favour, to
the exclusion of all motor transport operators. Petitioners argued with the passing of the
Constitution and the grant of fundamental rights, the act on which route monopolization was
made is rendered void.
The Supreme Court initially applied the doctrine of eclipse only to pre-constitutional laws but
in the case of the state of Gujarat vs. Shri Ambika Mills (1974), it stated the doctrine can be
extended to the post constitutional laws as well.
DOCTRINE OF SEVERABILITY
The doctrine of severability holds if an enactment cannot be saved by construing it
consistent with its constitutionality, it may be seen whether it can be partly saved.
SC established the doctrine of severability in India in R.M.D. Chamarbaugwalla v. The Union
of India. SC held “If a part of a statute turns out to be void, that should not affect the
validity of the rest of it. … When a statute is in part void, it will be enforced as regards the
rest, if that is severable from what is invalid.”
If the valid and invalid provisions are so inextricably mixed up that they cannot be
separated from one another, then the invalidity of a portion must result in the invalidity of
the Act in its entirety. On the other hand, if they are distinct and separate that after striking
out what is invalid, what remains is in itself a complete code independent of the rest, then it
will be upheld notwithstanding that the rest has become unenforceable.
Reading Down:
The court may resort to reading down a law in order to save it from being rendered
unconstitutional. But while doing so, it cannot change the essence of the law and create a
new law which in its opinion is more desirable
In A. K. Gopalan v. State of Madras, SC observed “what we have to see is, whether the
omission of the impugned portions of the Act will “change the nature or the structure or the
object of the legislation”.
DOCTRINE OF LACHES
Laches is unreasonable delay in asserting a claim, which may result in its dismissal. It is
based on the maxim "equity aids the vigilant and not those who slumber on their rights."
Legal right or claim will not be enforced or allowed if a long delay in asserting the right or
claim has prejudiced the adverse party. Elements of laches include knowledge of a claim,
unreasonable delay, neglect, which taken together hurt the opponent.
A common field of application of laches is in inheritance cases, where a claimant makes a

case after a very long time period, such as one or two decades.
The doctrine of laches often manifests in law by the statue of limitations, which installs
time-bars, or prescribes a period of limitation for the bringing of actions of certain kinds.
DOCTRINE OF RESPONDENT SUPERIOR

“Respondent superior” means “the party is responsible for the acts of their agents.” It is
same as vicarious liability. For instance, the employer is liable for acts of employees
performed within the course of their employment, but does not normally apply to acts done
by independent contractors. When an employee or a servant commits a civil wrong against
a third party, the employer or master could be liable for the acts of the servant or employee
when those acts are committed within the scope of the relationship. The third party could
proceed against the servant and master. The action against the employee would be based
on his conduct, and the action against the employer is based on the theory of vicarious
liability.
This rule is also called the master-servant rule, recognized in both common and civil law
jurisdictions. The applicability of this doctrine depends on the following tests:
1.Was the act committed within the time and space limits of the agency?
2.Was the offense incidental to, or of the same general nature as, the responsibilities the
agent is authorized to perform?
3.Was the agent motivated to any degree to benefit the principal by committing the act?
4.The degree to which these are answered in the affirmative dictates the degree to which
the doctrine can be applied.
The doctrine was applied (under the term “command responsibility”) by the Nuremberg war
crimes tribunal to try Nazis after World War II. The Nuremberg trials established persons
cannot use the defense that they were only following the orders of their superiors, if that
order violates established international norms. Superiors who ordered or "should have
known" of such violations yet failed to intervene were also held criminally liable.
DOCTRINE OF LOCUS STANDI

"Locus standi” is Latin for ‘place to stand. ’ It refers to the right or capacity to bring an
action or to appear in a court. In essence the question of locus standi is whether the litigant
is entitled to have the court decide the merits of the dispute or of particular issues.
There are three requirements for a case to have locus standi in anyh court of law:
1.Injury: The plaintiff must have suffered or imminently will suffer injury. The injury must
be actual or imminent, distinct and palpable, not abstract. This injury could be economic as
well as non-economic.
2.Causation: There must be a causal connection between the injury and the conduct
complained
3.Redress ability: It must be likely, as opposed to merely speculative, that a favorable court
decision will redress the injury.
Normally, locus standi requires the party filing a suit to demonstrate sufficient connection to
and harm from the law or action challenged. For instance, Locus Standi is mandatory for
Article 32, which deals with right to move the supreme court for the enforcement of
fundamental rights.
In Dr. George Mampilly v. State of Kerala (1984), Kerala HC allowed a third-person, not

affected by the case to file a case, on behalf of the victims of action. Likewise, courts now
allow many cases under PIL, which runs contrary to the rule of locus standi.
Doctrine of Colourable Legislation

The doctrine of colourable legislation refers to the question of competency of the legislature
while enacting a provision of law.
The maxim is ‘what cannot be done directly, cannot also be done indirectly
If a legislature is prohibited from doing something, it may not permitted to do this under the
pretence of doing something while acting within its lawful jurisdiction.
The doctrine does not involve any question of bonafides or malafides intention on the part of
the legislature. If the legislature is competent enough to enact a particular law, then
whatever motive which impelled it to act are irrelevant
Doctrine of Pith and Substance

Pith means ‘true nature’ or ‘essence of something’
Substance means ‘the most important or essential part of something’.
Doctrine of Pith and Substance says that where the question arises of determining whether
a particular law relates to a particular subject (eg union list or state list), the court looks to
the substance of the matter. Thus, if the substance falls within Union List, then the
incidental encroachment by the law on the State List does not make it invalid
• Prafulla Kumar Mukherjee v. The Bank of Commerce: Court held whatever may be the
ancillary or incidental effects of a Statute enacted by a State Legislature, such a matter
must be attributed to the appropriate list (union, state or concurrent) according to its true
nature and character.
• The State of Bombay vs F.N. Balsara: The SC upheld the Doctrine of Pith and Substance
for the first time. The court opined it is important to ascertain the true nature and character
of a legislation for the purpose of determining the List under which it falls.
Doctrine of Repugnancy
Black’s Law Dictionary defines Repugnancy as “an inconsistency or contradiction between
two or more parts of a legal instrument (such as a statute or a contract)”.
Article 254 of the Constitution of India firmly entrenches the Doctrine of Repugnancy in
India.
M. Karunanidhi v. Union of India: SC said where the provisions of a Central Act and a State
Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central
Act will prevail and the State Act will become void in view of the repugnancy.
Where however a law passed by the State comes into collision with a law passed by
Parliament on an entry in the Concurrent List, the state act shall prevail to the extent of the
repugnancy and the provisions of the Central Act would become void provided the State Act
has been passed in accordance with clause (2) of Article 254.
Conditions which must be satisfied before any repugnancy could arise:
1. there is a clear and direct inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts and a situation is reached
where it is impossible to obey the one without disobeying the other.
In National Engg. Industries Ltd. v. Shri Kishan Bhageria, it was held that “the best test of
repugnancy is that if one prevails, the other cannot prevail”.
Power of Judicial Review in Lawmaking
Judicial review is a process under which executive and legislative actions are subject to
review by the judiciary. A court with judicial review power may invalidate laws and
decisions. An executive decision may be invalidated for being unlawful. A statue may be
invalidated for violating the terms of a written constitution.
The scope for judicial review is stronger in common law systems. Common-law judges are
seen as sources of law, capable of creating new legal principles, and also capable of
rejecting legal principles that are no longer valid. In the civil-law tradition, judges are seen
as those who apply the law, with no power to create (or destroy) legal principles.
Judicial review is one of the checks and balances in the separation of powers. The idea of
separation of powers was first introduced by Montesquieu, and later institutionalized in the
United States by the Supreme Court ruling in Marbury v. Madison. Separation of powers is
based on the idea that no branch of government should be able to exert power over any
other branch without due process of law; each branch of government should have a check
on the powers of the other branches of government, thus creating a regulative balance
among all branches of government.
In UK, if an administrative action appears to be irrational and satisfies the Wednesbury Test
that evolved after the case of Associated Provincial Picture House v. Wednesbury then it can
be reviewed. The Wednsburuy case established the convention person in whom is vested a
discretion must exercise his discretion upon reasonable grounds.
Judicial review is the basic feature of the Indian Constitution and cannot be abrogated even
by an amendment of the Constitution. It is incorporated in Articles 226 and 227 of the
Constitution insofar as the High Courts are concerned. In regard to the Supreme Court
Articles 32 and 136 of the Constitution embody the principle of judicial review.
In India, one of the earliest cases of judicial review was in Kameshwar Singh v State of
Bihar (1950), where the SC held the Bihar Land Reforms Act, 1950 invalid. The act, which
sought to re-distribute agricultural land, was held to violate Article 14. The most recent case
of judicial review in India was Justice Chalmeshwar striking down the draconian Sn 66A of
the IT Act as unconstitutional.
SOVEREIGNTY
Sovereignty is the supreme power of the state over all individuals and associations within its
own territorial limits.
Sovereignty = the right to demand obedience. Derived from the Latin word “superannus”
meaning supreme,
Sovereignty is a chief attribute of a state. A sovereign state:

1. Is not subordinate to any other state or entity (freedom from foreign control)
2. Has supreme control over its territories
3. Is the final authority to make laws and take political decisions in its realm
4. Has power to punish offenders and renegades
Types of Sovereignty
1. Nominal and Real Sovereignty: absolute power wielded by kings. Parliament or council

of ministers, if it exists, were powerless eg; France before French revolution (1789),
England before Glorious Revolution (1688)
2. Legal Sovereignty: authority which has the legal power to issue final commands, eg:
English parliament, Thailand’s ruling junta. Bryce: “legal sovereignty lies in that authority,
be it a person or a body, whose expressed will shall bind others, and whose will is not liable
to be overruled by the expressed will of anyone placed above him or it.”
3. Political Sovereignty: The force or entity that confers legal sovereignty: eg: People
who elect MPs. Professor R.N. Gilchrist, “Political sovereign manifests itself by voting, by the
press, by speeches, and in many other ways not easy to describe or define. It is, however,
not organized and it can become effective only when organized. Legal sovereigns cannot go
against the will of the political sovereign.
4. Popular Sovereignty: power of masses. Eg: power of majority of electorate

(democracy)
5. De Facto (actual) and De Jure (legal) Sovereignty: De facto sovereign is people who
can make their or their will prevail whether with the law or against the law, and the person
to whom obedience is actually paid. De Jure sovereign is the figurehead. Eg: Edapaddy
Palaniswamy is de jure sovereign and Sasikala / Mannargudi mafia is the de facto sovereign.
Napoleon Bonaparte was de facto sovereign, not de jure sovereign. Mussolini was de facto
sovereign, Italian Parliament was de jure sovereign.
Theories of Sovereignty
Concept of sovereignty as we know it today was unknown in ancient and medieval times.
MACHIVELLI (1469-1527, Italy): State is absolute and an end in itself, and cannot have
any restraints on its powers. State is not subordinate to church or natural laws.
JEAN BODIN (1530-96, France): First expounded the concept of sovereignty.
THOMAS HOBBES (1588-1679, England): Sovereign is absolute and not bound by

anything. Powers of sovereign extends overall matters of state, including religion.
JAMES BENTHAM (1709-1794, England): Advocated absolute power for sovereign, on

grounds of hedonism. The sovereign should make laws in conformity with principal of utility.
JOHN AUSTIN (1790-1859, England):

1. A Sovereign does not obey any political superior, and commands habitual obedience from
a bulk of his/her subjects.
2. Members of the society are dependent on the superior sovereign
3. Sovereignty is unlimited
4. Sovereign is undividable.
5. Society without a sovereign cannot be called a state
Eg is British Parliament, which can make or unmake any law, and whose only limits are
physical limits.
Implications of Austin’s Theory

1. Command is the essence of sovereignty. The character of the state is immaterial. The
state many act unwisely and dishonestly.
2. Sovereign issues laws and punishes those who disobey such laws
3. There is no limit on the exercise of its power. However, sovereign may have de facto
limitations, such as:
(i) Coercive force which the sovereign has under his commandments
(ii) The docile disposition of its people
Criticisms against Austin’s theory

1. It ignores popular sovereignty and public opinion
2. Law is not the command of the sovereign – common law, customs etc are all valid and
legitimate sources of laws
3. Sovereignty is dividable. Sovereignty does not reside with a determinate person in the
federation:
4. Force is not the only sanction behind laws
5. This theory is out of sync with practical reality. No state, even in Europe, has sovereignty
according to Austin’s theory.
• AV DICEY: In parliamentary democracy, parliament is the legal sovereign and people are
political sovereign. So concept that sovereignty is undividable is wrong. Eg: Under Sn 53 of
Constitution of India, executive power is with President, legislative power is with parliament,
and houses of state, and there is judiciary as well.
• LAKSI: No sovereign, anywhere, anytime held unlimited power, and attempts to do so

always resulted in establishment of safeguards and overthrow of such sovereign. Even
Hitler, Pot-Pal, etc did not wield unlimited power, and neither does the English Parliament.
• HENRY MAINE: Only a despot with a disturbed brain fits Austin’s description of

sovereignty. Even despots such as Maharaja Ranjit Singh did not issue commands that
opposed customs, usage, and religious beliefs of people
• BLUNTSCHI: State as a whole is not almighty

• LESLIE STEPHENS: Sovereignty is limited from both within and without. Laws can only
regulate only external actions of human beings. It cannot regulate internal actions.
JOHN SALMOND (1862-1924):
1. A sovereign authority is essential in every political society
2. The sovereign authority has uncontrollable power in his/her sphere of influence. But the
power of sovereign may be limited by
a. extend of his physical force
b. the docility of his subjects – eg: jallikettu protest force sovereign to issue ordinance,
c. checks and balance of the constitution : eg Indian judiciary, limited powers of US
Congress
3. The sovereign many not necessarily be found within the confines of the State itself (eg:
Arab states accepting the Ottoman caliph as their sovereign, India accepting the British
Queen as the sovereign). Such states however may be dependent or semi-sovereign states;
In US, ultimate sovereignty is vested not in Congress but in a majority of three-fourths of
the slate legislatures which can ratify amendment to constitution proposed by a two-thirds
majority of the Congress.)
AUSTIN SALMOND
Unlimited supremacy in all

Supremacy need not necessarily be unlimited
matters, including religion
Sovereignty is unlimited de Sovereignty may be limited even de jure, eg: two houses
jure. It may be limited only de of parliament dividing sovereign powers among
facto. themselves
Sovereignty is dividable when it extends beyond the

Sovereignty is undividable sovereigns own sphere (eg: provincial warlords owing
allegiance to the Taliban)
HENRY MAINE (1822-1888, England)

Sovereignty does not reside in determinable human superior. Rather
1. Moral, ethical and other factors perpetually limits power of sovereign
2. No sovereign can afford to ignore customs, usage and religious beliefs
KM MUNSHI (1955, India): Sovereignty has two aspects

1. External: in relation with other statesman
2. Internal: In relation to its own citizens
The idea that sovereignty is individable is untrue.
Treaties, conventions and international laws limit sovereignty of sovereign republics eg: UN
charters,
MARXIST VIEW:
Expounded by Karl Marx in The German Ideology (1846) and also The Communist Manifesto
State reflects the dominance of one class over other classes - Powers of the state are
exercised to protect interest of the class which has instruments of production in its hands
(eg: crony capitalism)
The proletariat struggle against the oppressor-sovereign - State shall wither away when
classes are abolished
The opposite of Sovereignty is ANARCHY – the idea that the world lacks any supreme
authority or sovereign. In an anarchic state, there is no hierarchically superior, coercive
power that can resolve disputes, enforce law, or order the system of international politics.
RULE OF LAW
“Rule of law” is the legal principle that law should govern a nation, as opposed to being
governed by arbitrary decisions of the sovereign. The concept brings everyone under the
same set of laws, and is the opposite to the concept of “divine right of kings,” autocracy,
dictatorship, and oligarchy where the rulers are above the law.
The Oxford English Dictionary: “Rule of Law is the authority and influence of law in society,
especially when viewed as a constraint on individual and institutional behavior. It is the
principle whereby all members of a society (including those in government) are considered
equally subject to publicly disclosed legal codes and processes.”
The Secretary-General of the United Nations: “A principle of governance in which all

persons, institutions and entities, public and private, including the State itself, are
accountable to laws that are publicly promulgated, equally enforced and independently
adjudicated, and which are consistent with international human rights norms and
standards.”
KC Davis (1969) gives seven principle meanings for rule of law

• Maintenance of law and order
• Fixed rules
• Elimination of discretionary powers
• Due process of law of fairness
• Natural law (principles of natural justice)
• Preference for judges and ordinary courts of law to executive authorities and
administrative tribunals
• Judicial review of administrative actions
Key Characteristics:
Rule of law implies:

1. SUPREMACY OF LAW: laid down laws apply rather than discretionary power or
arbitrariness
2. EQUALITY BEFORE LAW: Every citizen is subject to the same law, including lawmakers
themselves.
3. ACCOUNTABILITY: State committed to enforce the law
4. FAIRNESS OF APPLICATION: Following due process of law
5. LEGAL CERTANITY: definite and codified asset of laws, and not whimsical edicts
6. TRANSPARENCY: Procedural and legal transparency in application of law –law, including
the prohibitions and exigencies, must be publicly declared
7. INFLEXIBILITY: Rule of law is sometimes at odds with flexibility, even when flexibility
may be preferable. Eg: punishment for mob violence lynching to death of rapist
Rule of Law v Rule of Man:

A society in which government officers have a great deal of discretion has a low degree of
"rule of law", and a society in which government officers have little discretion has a high
degree of "rule of law".
Rule OF Law vs Rule BY Law:

With rule OF law, the law is preeminent and offers a check against abuse of power. Under
rule BY law, the law is a mere tool for a government, used to keep populace under
oppression.
Rule of Law v/s Discretion
A school of thought argues rule of law has been diluted to allow for the exercise of
discretion by administrators.
Where there is room for discretion, there is room for arbitrariness.
Judicial discretion or interpretation of law can pose a danger to rule of law. According to
journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being
supplanted by the rule of judges.”
Administrative tribunals that adjudicate according to special laws applied to special groups,
subverting both common law and procedure of common courts are a direct challenge to
Dicey’s first principle of rule of law.
Evolution of Rule of Law:
ARISTOTLE: The concept of “rule of law” was first popularized by Aristotle, who said “It is
more proper that law should govern than any one of the citizens… if it is advantageous to
place the supreme power in some particular persons, they should be appointed to be only
guardians, and the servants of the laws”
CICERO: Cicero, the Roman statesman said "We are all servants of the laws in order that
we may be free." During the Roman Republic, controversial magistrates might be put on
trial when their terms of office expired. Only the sovereign was personally immune (legibus
solutus), but those with grievances could sue the treasury.
ALFRED THE GREAT: Alfred the Great’s “Doom Book” (893 CE) was an attempt to codify
law, based on biblical Mosaic law and Christian commandments. He ruled that justice had to
be equal between people, whether rich or poor, friends or enemies. This was inspired from
Leviticus 19: "You shall do no injustice in judgment! You shall not be partial to the poor; nor
defer to the great! But you are to judge your neighbour fairly!"
MAGNA CARTA: (1215). The barons of England, under leadership of Archbishop Stephen

Langton forced King John and future sovereigns and magistrates under the rule of law,
preserving ancient liberties by Magna Carta in return for exacting taxes.
RUTHERFORD: Earliest mention in modern times was by Samuel Rutherford, a 16th century
Scottish theologian, who used the phrase “rule of law” in his argument against the “divine
right of kings.” His work “Lex, Rex” (1644) means "the law is king", and subverts the
traditional formulation “rex lex” meaning “the king is law."
BILL OF RIGHTS (1689): The English Parliament passed the Bill of Rights on December 16,
1689, which created separation of powers, limited the powers of the king and queen, laid
the foundation of democratic election and bolstered freedom of speech
DICEY: The 19th century British jurist A V Dicey said "no man is punishable or can be
lawfully made to suffer in body or goods except for a distinct breach of law established in
the ordinary legal manner before the ordinary Courts of the land."
Dicey’s Three Principles on 'Rule of Law'.

1. Supremacy of Law: Law is the absolute supreme and predominant as opposed to
influence of arbitrary power or discretionary power - English men are ruled by the Rule of
Law and law alone. - A man can be punished by rule of law, and by nothing else.
2. Equality before Law: All people are subject equally to the one and same law - French
system of Droit Administratif (special courts to deal with cases of Government and its
servants ) goes against the spirit of rule of law.
3. Predominance of Legal Spirit – courts are guarantors of the liberty – in England rights
(such as right to personal liberty, freedom from arrest etc.) are the result of judicial
decisions - the Constitution is a consequence (and not the source) of the rights of the
individuals.
Mere incorporation in a written constitution is of no use in the absence of effective remedies
of protection and enforcement.
Dicey’s thesis became a yard stick to test administrative actions, and contributed to the
growth of administrative law in a big way.
Criticism
Dicey does not give recognition to discretion powers. Even during his time, there was a long
list of statutes which permitted the exercise of discretionary powers of the Crown which
could not be called to the Court.
He fails to distinguish between 'arbitrary powers' to 'discretionary powers'.
He also misunderstood the real nature of droit administratif which was successful in France.
US FOUNDING FATHERS: In 1776, Thomas Paine wrote “law is king.” In 1780, John
Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a
government of laws and not of men."
All government officers of the United States, including the President, the Justices of the
Supreme Court, state judges and legislators, and all members of Congress, pledge first and
foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to
the rule of any human leader.
How does rule of Law apply in India?
In India, Constitution is supreme – all arms of the state (executive, legislature and
judiciary) are subordinate to it.
If executive or legislature abuses power vested with it, or if action is malafide, courts of law
can quash such actions.
Any law inconsistent to provision of the constitution can be declared ultra vires (beyond
one’s legal power or authority) by the SC
The president is required to take oath to preserve, protect, and defend the constitution
The concept “King can do no wrong” does not apply in India. Government and public
authorities do not have immunity. They are subject to jurisdiction of ordinary courts and
tried and punished similarly like everyone else
In England, public servants can be dismissed by the crown at pleasure
Case Laws
• Wilkes v Wood (1763, UK): action for damage for trespass was maintainable even if
trespass was committed in pursuance of order of a minister
• Chief Settlement Commissioner, Punjab v Om Prakash (1968): authority of law
courts to test to test all administrative action by the standard of legality. Administrative or
executive action that does not pass the test of legality shall be set aside if the aggrieved
party beings appropriate action in the competent court.
• ADM Jabalpur v Shivakant Shukla (1975) (Habeus Corpus Case): When emergency
was declared, the seven freedoms listed under article 19 of constitution stood suspended.
Large number of people were arrested under MISA, with many not even informed of the
grounds of their detention. Govt contended that right under art 19 came from Art 21, which
remained suspended. The SC in a 4-1 judgment agreed with the govt. By endorsing
arbitrariness, it left a big blot to the concept of rule of law in India.

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What is Jurisprudence?

The study of jurisprudence makes explicit

Origins of English Common Law

Common Law v Civil Law

Different types of Law

Civil Law Criminal Law

Criminal proceedings are against criminal

Civil Proceeding results in a judgment for

Origin and Growth of Administration of Justice

Various branches of administration of justice

Administration of Justice means enforcing justice according to law.

Consent Judgment (also known as "agreed judgment"):

Concurring, Minority and Dissenting Judgments

DOCTRINE OF OBITER DICTIUM

Obiter Dictum is an incidental remark. It is a judge's expression of opinion uttered in court

DOCTRINE OF RATIO DECIDENTI

Merits and demerits of administration of justice in accordance with the law

Such a system of legal justice has both advantages and disadvantages.

Advantages of Legal Justice

Disadvantages of Legal Justice

As the adage goes “what is just may not be legal.”

4. Technicalities/Formalism: Legal Justice is full of technicalities and formalities. Often the

3. Historical sources, such as un-authoritative writings

Keaton has classified the sources of law as follows:

How different schools of thoughts regard legislation as a source of law:

• Analytical-Positivist School of Thought:

• Historical School of Thought

Direct v Indirect Legislation

Direct legislation = laws enacted by the legislative body, such as parliament

Supreme v Subordinate Legislation

Subordinate legislation is of the following types:

Type Description Examples

The supreme authority confers

Local Laws Local Panchayati raj, laws made by

When one country is a colony of Pre-Independence laws of

Executive made law

Legislation delegated to local Building rules, waste

All subordinate legislation, except colonial law, is indirect legislation.

Delegated legislation may be in the form of

Codification is the systematic process of collection, compilation and arrangement of laws, to

Operation of Doctrine of Precedent

Elements needed for a precedent to work.

Binding (Authoritative) Precedent:

How Precedents are established: Inductive v/s Deductive Method

INDUCTIVE METHOD DEDUCTIVE METHOD

Judge reviews previously decided cases of similar

Mostly applied in civil law

How Precedents are Applied

Principle of Stair Decisis

"Super stare decisis"

Precedents in Various Legal Systems:

English Common law:

The landmark Young v Briston Aeroplane (1944), court laid down some points

However, the case also established three major exceptions:

Doctrine of Precedent in India

Union of India v. K.S. Subramanium (1976): When there is inconsistency in decision

The following are the major ways in which a precedent is disregarded:

Focus is on making law – lays down the