Legal Methods EXAM Notes

SPELUNCEAN EXPLORERS CASE-

FACTS-
The facts of the case are recounted in the first judicial opinion, which is given by Chief
Justice Truepenny.[5]
Five cave explorers became trapped inside a cave following a landslide. They have limited
food supplies and no sources of nutrition inside the cave. Above ground, substantial resources
are spent to rescue them, with 10 workmen killed in subsequent landslides near the blocked
entrance. Radio contact is eventually established with the cavers on the 20th day of the cave-
in, and the cavers learn that another 10 days would be required in order to free them. They
then consult with medical experts, who inform them that they are unlikely to survive to the
rescue given the likelihood of starvation.

In "the Case of the Speluncean Explorers", the person to be eaten was chosen by throwing a
pair of dice. This method had also been suggested for choosing the victim in the similar real-
life case of R v Dudley and Stephens.
One of the cavers, Roger Whetmore, then asks on the cavers' behalf if the cavers could
survive 10 days longer "if they consumed the flesh of one of their number". The medical
experts reluctantly confirm this to be the case. Whetmore then asks if they should draw lots to
select a person to be killed and eaten. No one outside the cave is willing to answer this
question. Radio contact is subsequently lost.
Once the cave-in is cleared, it is discovered that only four cavers have survived; Roger
Whetmore had been killed and eaten by the others. The survivors state that Whetmore had
originally come up with the ideas of cannibalism and choosing the victim through random
chance, offering a pair of dice in his possession.
Before the dice are cast, Whetmore allegedly expresses a wish to withdraw from the
arrangement, preferring to wait another week "before embracing an expedient so frightful and
odious". The others refuse to accept his change of mind, and cast the dice on his behalf. The
survivors claim that Whetmore conceded that the dice were thrown fairly. He is subsequently
killed and eaten.
Following their rescue and recovery, the survivors are charged with the murder of Whetmore.
The relevant statute provides that "Whoever shall willfully take the life of another shall be
punished by death", offering no exceptions which would be relevant to the case. [6] The jury
seek a special verdict, so that they can make limited findings of fact without having to return
a verdict on whether it constitutes murder. The cavers are ultimately convicted of murder.
The mandatory sentence for murder in Newgarth is death by hanging. Both the trial judge and
members of the jury petition the Chief Executive to commute the sentence of the surviving
spelunkers from the death penalty to six months' imprisonment. The Chief Executive refuses
to act while the Supreme Court of Newgarth considers the appeal.

Case of the Speluncean explorers: Three propositions

- These explorers are wrong both legally and morally. Nothing can justify taking the
life of another.
- Collective survival: The needs of a group trump the needs of an individual. Law is
derived from human coexistence.
- A mixed response: guilty because of their acts, innocent because of the circumstances
they were in. The group should be given a lenient punishment.
Example: Five researchers work at a nuclear plant, trying to develop clean energy. Due to
some mishap, four get exposed to research. The four ask the other to donate his organs to
them so that the research can continue.

In the context of Speluncean explorers, these three propositions apply here as well.

TRUEPENNY-
His first opinion is largely expository; it is used to recount the facts of the case Truepenny
CJ’s judgment reflects the positivist school of thought, based on the belief that the law should
be applied literally as it is, not how it was intended to apply. [9] Truepenny CJ upholds the
death sentence but also points to the possibility of the fictitious ‘Chief Executive’ exercising
their executive discretion to commute the sentence to one of imprisonment
. The Chief Justice states that the statute is unambiguous, with no applicable legal defences,
so it must be applied by the court. [7] He adds that granting mercy is a decision for the
executive branch of government to make, rather than the judiciary. [8] However, the Chief
Justice suggests that the judges of the court should add their names to the petition of the trial
judge and jury requesting the Chief Executive to show mercy to the defendants. This would
allow justice to be achieved "without impairing either the letter or spirit of our statutes and
without offering any encouragement for the disregard of law". DECISION- Affirms
convictions but recommends clemency

FOSTER-
I believe something more is on trial in this case than the fate of these unfortunate explorers;
that is the law of our Commonwealth. If this Court declares that under our law these men
have committed a crime, then our law is itself convicted in the tribunal of common sense, no
matter what happens to the individuals involved in this petition of error. For us to assert that
the law we uphold and expound compels us to a conclusion we are ashamed of, and from
which we can only escape by appealing to a dispensation resting within the personal whim of
the Executive, seems to me to amount to an admission that the law of this Commonwealth no
longer pretends to incorporate justice.
— Justice Foster[8]
The second opinion takes a different approach to the Chief Justice's. In determining that the
convictions should be overturned, Justice Foster makes two main points. Firstly, the
defendants were in a "state of nature" at the time of the killing, so the laws of nature applied
to them. The laws of nature allowed to agree to sacrifice one person for the survival of the
rest.[8] Secondly, assuming the laws of Newgarth did apply, the purpose of the statute should
be considered when applying it to the facts of the case. Justice Foster considers the main
purpose to be deterrence, concluding that just as a conviction involving self-defense would
not serve the statute's purpose, neither would a conviction in the present case.[9]
The judge counters potential judicial activism concerns by noting that while judges must
obey the will of legislators, they must do so intelligently. He draws analogies to servants who
need to "read between the lines" of their masters' instructions: strict literal compliance may
not always be the actual intention. [10]Thus the "correction of obvious legislative errors or
oversights is not to supplant the legislative will, but to make that will effective.
DECISION- Sets aside convictions

TATTING-
In the third opinion, Justice Tatting is emotionally "torn between sympathy for [the
defendants] and a feeling of abhorrence and disgust at the monstrous act they committed".
[11]
He ultimately finds himself unable to decide the case.
Justice Tatting disagrees strongly with Justice Foster's rationales in overturning the
convictions. He criticizes the "state of nature" concept and is not satisfied with Justice
Foster's formulation placing the law of contract above the law against murder. [12] He also
notes the difficulty of applying the purposive approach to the criminal statute which has
multiple purposes, including retribution and rehabilitation. [13]He distinguishes the self-
defence exception that was created by past judges on the basis that it is not a "willful" killing,
so it does not contradict the wording of the statute. [14] He finds that the self-defence exception
could not be applied to the present case as it would raise "a quagmire of hidden difficulties".
[15]

The judge cites the case of Commonwealth v Valjean,[b] in which starvation was held not to
justify the theft of a loaf of bread, let alone homicide. These combined objections lead Justice
Tatting to reject Justice Foster's reasoning as "intellectually unsound and approaching mere
rationalization."[17]
Despite rejecting Justice Foster's reasoning, Justice Tatting cannot bring himself to reach the
alternative view, that the defendants' convictions should be upheld. He states that "almost
every consideration that bears on the decision of the case is counterbalanced by an opposing
consideration leading in the opposite direction." [17] Concluding with a criticism of the
prosecutor for deciding to bring the prosecution in the first place, the judge makes the
"unprecedented" decision of withdrawing from the case
DECISION- Withdraws from case and makes no decision

KEEN-
The fourth opinion begins by excluding executive clemency and the morality of the
defendants' actions as relevant factors to the court's deliberations. [18] Rather, the question
before the court is purely one of applying the legislation of Newgarth and determining
whether the defendants wilfully took the life of Whetmore. He criticizes the other judges for
failing to distinguish the legal from the moral aspects of the case. [18] While he shares their
preference that the defendants be spared from death, he respects the obligations of his office
to put his "personal predilections" of what constitutes justice out of mind when interpreting
and applying the law.[18]
Justice Keen objects vehemently to Justice Foster's purposive approach allowing the plain
words of the law to be ignored.[19][20] He emphasizes that laws may have many possible
purposes, with difficulties arising in divining the actual "purpose" of a piece of legislation. [21]
Justice Keen recalls that earlier instances of judicial activism in Newgarth had ultimately led
to civil war, which established the supremacy of the legislature over the judiciary. [21] He
concludes by criticizing the courts' creation of the self-defense excuse, stating that waiting for
the legislature to enact such revisions would have led to a stronger legal system
DECISION- Affirms convictions

HANDY-

Handy J is the greatest judicial activist of all, placing public opinion on the case above the
law itself, and overturning the sentence because that is what the public wants
In contrast to the other judges, Justice Handy prefers to use a "pragmatic, common-sense
approach", rather than abstract legal theories, to resolve the case. [22] He criticizes his
colleagues' "obscuring curtain of legalisms" when the case simply requires the application of
"practical wisdom" of "human realities". [19]He emphasizes the need for the courts to maintain
public confidence, which requires them to follow the 90% majority in favour of applying a
token punishment or releasing the defendants altogether.[23][22] He is prepared to use Justice
Foster's purposive approach doctrine as the legal rationale.[23][22]
Justice Handy notes that apart from the ambivalent Justice Tatting, the other judges share the
majority public opinion. The judges voting to uphold the convictions simply differ from
Justices Foster and Handy on whose role it is to spare the defendants from the death penalty.
DECISION- Sets aside convictions

Positive law v natural law-

Natural law is universal; it applies to everyone. Positive law only applies to those people who
are the subjects or citizens of the government that creates the law.
Positive law must be written down. Natural laws are unwritten law .
Positive law must be made by a given government and it relies on the government for its
power. Natural law is not made by people and has moral power regardless of whether a
government recognizes it and makes it into positive law or not.

The term positive law refers to laws made by man that require some specific action. These are
statutes, codes, and regulations that have been enacted by a legislature. By contrast, “natural
law” refers to principles that are universal in society, governing moral acts.

In its strictest sense, positive law is law that is made by humans. Specifically, Black’s Law
Dictionary defines positive law as “Law actually and specifically enacted or adopted by
proper authority for the government of an organized jural society.” In a more complex sense,
the term positive law refers to a legal philosophy of positivism.

Natural law is law which claims a basis in God, nature or reason. It could not, therefore,
include the murder of blue-eyed babies, whatever the statues happen to say. According to the
idea of natural law, rights are not conferred by statute but are inherent.

Natural Law Theory of Law

Legal systems have a function—to secure justice. Grossly unjust laws (e.g. “White
people may own Black people as slaves,” “women may not own property or vote”) are not
really laws at all, but a perversion of law or mere violence. positive law has as its purpose the
common good of the community. Any positive law which conflicts/is inconsistent with either
natural law or divine law is not really law at all. Hence, not only is there no moral obligation
to obey it, but there is no legal obligation to obey it, either.

as Aristotle assumed, that in a society governed by the rule of law rather than by tyranny,
positive and natural law will coincide, since a positive law which was manifestly contrary to
natural law would never be passed by a legislature (and if it were passed, citizens would see
no reason to obey it). In practice, however, conceptions of natural rights differ considerably
between societies, so some of the positive law in any country will be certain to seem unjust
(and therefore contrary to natural law) to many people. This applies in particular to laws
regarding such matters as controlled substances or freedom of religion, about which there is
little international agreement.

LAW AND MORALITY-

Law and morality can be understood as concepts. Laws are concerned with legal rights and
duties which are protected and enforced by the State. They are backed by sanction, and
therefore if one disobeys the laws of the State, they are liable to be punished. Morality
categorizes human behavior as good or bad. The cannons of morality however are based on
moral duties and obligations. If one does not adhere to the standards of morality that is
prescribed, he cannot be held legally liable. When we do the right thing, we experience virtue
and enjoy praise and when we do the wrong thing, we suffer guilt and disapprobation. Both,
law and morality channel human behavior.
While morality is concerned with regulating both the internal and external conduct of men,
law is concerned only with regulating the external affairs of men. While it can be said that,
law brings within itself some reflection of public morality, it is also true that certain things
may not be illegal according to law, but maybe unacceptable to morality.

HART FULLER DEBATE ON LAW AND MORALITY-

it demonstrates the divide that exists between the positivist and the natural philosophy of law
regarding the role of morality in law. While, Hart argued that law and morality are separate
from each other and they can be termed as mutually exclusive. Fuller was of the view that
there exists a deep connection between law and morality and the authority of law is derived
from its consistency with morality.

VIEWS OF HLA HART-

Prof HLA Hart was a legal positivist and a critical moral philosopher. As a legal positivist, he
states that it is not necessary that laws have to necessarily satisfy certain demands of
morality. he does not believe them to be inter-dependant on each other. He states that the
existence of law cannot be judged by its merits or demerits. A law happens to exist,
irrespective of our likes or dislikes.
Whether the law confirms to a set of minimum moral standards is not a pre-requisite for
existence of a legal system. It is not essential that a legal system must exhibit some
conformity with morality. Laws simply do not cease to exist on the ground of moral
criticisms.

PRIMARY AND SECONDARY LAW-

Hart says that the essence of law consists of two different kinds of rules, i.e. the primary and
secondary rules. Primary rules are the duty imposing rules that have legal sanction which
imposes certain duties on the citizens. Secondary rules are the power-conferring rules that
prescribe the manner in which the primary rules are to be recognized, changed and
adjudicated. Secondary rules can be said to be rules about primary rules. Together the
primary & secondary rules form the heart of the legal system.

VIEWS OF LON FULLER-

Professor Fuller defines law as a particular way of achieving social order by guiding human
behavior according to rules. It is the enterprise of subjecting human conduct to the
governance of rules. According to Fuller, our legal procedures are built out of norms of
justice, which have a moral aspect. The procedures which are embodied in a legal system are
morally important in determining whether a set of rules count as a legal system. He believes
that for a law to be called a law in true sense, it must pass a moral functional test. If a rule or
a set of rules fails to conform to this function, it does not count as law.
Fuller rejects the positivist approach to law. He urges the law makers to realize that there
exist other ways and means to attain society‟s end rather than relying only to law.

MEANING OF LAW AND ITS SOURCES-

law can be described as' a system of rules and regulations which a country or society
recognizes as binding on its citizens, which the authorities may enforce, and violation of
which attracts punitive action. These laws are generally contained in the constitutions,
legislations, judicial decisions etc.
1. Legislation
The term ‘Legislation’ is derived from the Latin words ‘Legis’ meaning regulation and
‘latum’ which means making. In India legislation is considered as a primary source of law,
legislation has a wide ambit and it is used to regulate, authorize, to enable, to provide funds,
to prescribe, to sanction, grant, declare or to restrict. The legislature is framed by the
parliament in the form of new acts, new laws, repeal and amendment of old laws. The
procedure for this is prescribed in the constitution of India.
There are two types of legislation :
Supreme legislation: It is the parent law that originates from the sovereign strength of the
nation. It cannot be repealed, annulled or managed by other legislative authority.
Subordinate Legislation: The subordinate legislation are dependent on the supreme legislation
for their validity and existence.

2. Justice, Equity And Good Conscience

This principle is applied only in cases where the judges feel that the law seems to be
inadequate or out of date or unjust. In such cases the judges make decisions based on equity,
good conscience, fairness and justice using their commonsense.

3. Judicial Precedents
Judicial Precedents lays on the doctrine ‘stare decisis’, it simply means adhering and relying
on earlier decisions made by the courts; i.e., for instance if high court decides on a particular
case and a similar situation comes to the lower court, the lower court will treat the case alike
and pass the judgement same as done by the high court. This is because the high court has set
a precedent for the lower court and the lower court are bound to follow it.
The decisions of the lower bench can always be overruled by the higher bench by giving
valid reasons. In Union of India Vs K.S. Subramanium[3] - AIR 1976 SC 2435- In this case
when there was an inconsistency in the decision between the benches of the same court, the
decision of the larger bench was followed.

4. Customs
Customs is an established mode of social behavior within a community. It is one of the main
and oldest sources of law in India. According to Roscoe Pound, customary regulations
comprises:

5. Conventional Law - International Treaties/Agreements /Conventions

With the emergence of globalisation, there was an increased need for world countries to
interact with one another, this means that there’s a requirement for world countries to be
bound by a single set of laws. Such laws are made by the way of treaties, agreements, etc.,
and these are harmonized by the United Nations. Countries who are members of the United
Nations have to accept such rules or norms laid down by the organization, and abide by such
statutes or rules and also such members also have to frame laws in conformity with such
rules. And hence International conventions have an important role in framing new laws or
making amendments to existing laws.

LAW AND JUSTICE-

Law is what is in the statute books, or has been enacted or decreed by an accepted authority.
Law will generally be enforced by some paet of a society.
Justice is a moral or ethical concept. Different people do not generally agree on what is just
in a particular situation. People may consider that a particular law, or even an entire body of
law, is unjust.
For example, in many US states prior to the US Civil War, slavery was legal, but a great
many people considered that it was unjust.

People would like Justice to be objective, but no one has, as far as I know, come up with an
objective definition of justice that commands wide, let alone universal, assent. Justice
involves doing the right thing in response to people’s actions. But people do not agree on
what is right. What is right and wrong is a personal moral or ethical decision. Perhaps no two
people will agree on what is the right response in every possible situation. This they will not
agree on what constitutes justice, and so there cannot be any objective definition of justice

The Law is codification of do’s and don'ts and it is backed by sanction. In India the
Legislators make the law and Judiciary interprets the same. Executive entity implements the
legal provisions and judicial decisions. All these pillars of democracy work independently
with constructive interference. Hence when we ask ourselves a question that what is
law..? the answer to the same broadly will be Law is compilation of rules and regulations
framed by the legislators. Per subject matter and purpose there are separate statutes/
legislation. Hence law is comprising of all the legislation, rules regulations and bye laws in
operation which are binding on every citizen/person in our country. It is the litmus test for the
law that it shall be not in conflict with the basic structure of the Constitution of India. Now
let’s come to the concept of “justice”. Justice is nothing but an adjudication made by the
Judicial Authority in respect of dispute referred to the same. The striving for justice in India
gets completed in the Supreme Court. As the decision of supreme court shall be final and
binding and is considered as the law of the land on that particular dispute. Hence, Justice is
dependent upon the the legislation, factual matrix, presentation of facts and law before
adjudicating authority by advocates of the parties and lastly the application of mind by
adjudicating authority to the facts and law and its interpretation. Both the concepts can’t be
defined in a sentence as there will always be scope for explanation and addition. Hope this
discussion will be of some help on the topic.

UN AND ITS CHARTERS-

United Nations (UN), international organization established on October 24, 1945. The
United Nations (UN) was the second multipurpose international organization established in
the 20th century that was worldwide in scope and membership. Its predecessor, the League of
Nations, was created by the Treaty of Versailles in 1919 and disbanded in 1946.
Headquartered in New York City, the UN also has regional offices in Geneva, Vienna,
and Nairobi. Its official languages are Arabic, Chinese, English, French, Russian,
and Spanish.

According to its Charter, the UN aims:

to save succeeding generations from the scourge of war,…to reaffirm faith in fundamental
human rights,…to establish conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be maintained, and to
promote social progress and better standards of life in larger freedom.

Security Council:
For deciding certain resolutions for peace and security. (maintaining peace an security
ECOSOC:
For assisting in promoting international economic and social cooperation and development.
General Assembly:
The main deliberative assembly.
The Secretariat:
For providing studies, information and facilities needed by the UN
Trusteeship Council
The Trusteeship Council was designed to supervise the government of trust territories and to
lead them to self-government or independence.
International Court of Justice
The idea for the creation of an international court to arbitrate international disputes

Major specialized agencies and related organs of the UN include the International Labour
Organisation (ILO), the Food and Agriculture Organization of the United Nations (FAO), the
United Nations Educational, Scientific and Cultural Organization (UNESCO), and the World
Health Organization (WHO). Two of the most powerful specialized agencies, which also are
the most independent with respect to UN decision making, are the World Bank and the
International Monetary Fund (IMF).

POSITIVE:
Peacemakers, Encourages dialogue, Encourages cooperation, Protection of human democratic
rights
NEGATIVE:
Power depends on member states, No legitimacy, Representatives are not elected

The Charter of the United Nations (also known as the UN Charter) of 1945 is the
foundational treaty of the United Nations, an intergovernmental organization.[1] The UN
Charter articulated a commitment to uphold human rights of citizens and outlined a broad set
of principles relating to achieving ‘higher standards of living’, addressing ‘economic, social,
health, and related problems,’ and ‘universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language, or religion.’[2] As
a charter, it is a constituent treaty, and all members are bound by its articles. Furthermore,
Article 103 of the Charter states that obligations to the United Nations prevail over all other
treaty obligations.[

DOCTRINE OF SEPARATION-

The doctrine of separation of power in its true sense is very rigid and this is one of the
reasons of why it is not accepted by a large number of countries in the world.
 Most important feature of the above said doctrine is that there should be independence of
judiciary i.e. it should be free from the other organs of the state and if it is so then justice
would be delivered properly.
The judiciary is the scale through which one can measure the actual development of the state
if the judiciary is not independent then it is the first step towards a tyrannical form of
government i.e. power is concentrated in a single hand and if it is so then there is a cent
percent chance of misuse of power.
IC GOLAK NATH CASE.

Separation of power in India-

Under the Indian Constitution, executive powers are with the President, legislative powers
with Parliament and judicial powers with Judiciary (Supreme Court, High Courts and
Subordinate Courts).The President’s function and powers are enumerated in the Constitution
itself.
Parliament is competent to make any law subject to the provisions of the Constitution and
there is no other limitation on it legislative power.
The Judiciary is independent in its field and there can be no interference with its judicial
functions either by the Executive or by the Legislature.
The Supreme Court and High Courts are given the power of judicial review and they can
declare laws passed by the Parliament or the Legislature unconstitutional.
Taking into account these factors, some jurists are of the opinion that the doctrine of
Separation of Powers has been accepted in the Indian Constitution.

BURDEN OF PROOF- (onus probandi)

The concept of burden of proof is defined under Section 101 of the Law of Evidence Act,
states that when a person is bound to prove the existence of a fact, the burden to provide
evidence for the same lies upon him. Chapter VII of the Act deals with provisions under
burden of proof. The term “burden of proof” isn’t defined in the Act, however it is the
rudimentary principle of criminal that, that the presumption of innocence lies with the
accused unless proven otherwise.
Illustration: A wants the Court to convict B of theft. Since the assertion of theft was made by
A, the onus to provide evidence to support such assertion lies upon him.

Legal Systems

Although there are many now, there exist two primary legal systems: -
- Common law is a law-making system in which judges declare laws through existing
conventions and by deciding cases
- Civil law is formed through legislations enacted by the legislatures.

The use of these can be traced through their history. The concept of civil law emerged in
ancient Rome through the doctrines of ‘jus civilis’, laws which applied on locals of a
township or area and ‘jus gentium’, laws which applied on foreigners. These laws were laid
down by the Senate in the ‘Twelve Tables.’ Specific laws were made on twelve areas in this
code. Those who interpreted these were known as praetors and regularly published their
opinions on them. Under the reign of Justinian, these opinions were compiled and another
code was derived. The treatises written by the praetors were given heavy consideration by the
judges.
Common law on the other hand was derived in England during the Norman conquest in 1066,
under the reign of William the Conqueror. Before that each feudal lord made laws for his
own territory. HM the King created a council which came to be known as the King’s Council
which served as courts to settle disputes, and their judgements were consolidated. The
maximum effort in this however was made by Sir Edward Cooke sometime during the
seventeenth century. These laws applied to everyone in commonality, hence the name
common law. After the Glorious Revolution of 1688, the powers of the Sovereign were
limited and the Parliament became the supreme lawmaker. However, common law still
constitutes the majority of codes. The idea of equity also was a crucial point in the
development in common law and paved way to stare decisis. Draconian laws were hence
done away with.

The pattern of reasoning in judgements from civil law countries is primarily deductive. In
common law countries, inductive reasoning is followed as the principle is derived after the
decision.
 Civil Law Common Law

Legal Legal system originating in Europe Legal system characterized by case law,
System whose most prevalent feature is that its which is law developed by judges
core principles are codified into a through decisions of courts and similar
referable system which serves as the tribunals.
primary source of law.

Role of Chief investigator; makes rulings, Makes rulings; sets precedent; referee
judges usually non-binding to 3rd parties. In a between [Link] decide matters
civil law system, the judge’s role is to of law and, where a jury is absent, they
establish the facts of the case and to also find facts. Most judges rarely
apply the provisions of the applicable inquire extensively into matters before
code. Though the judge often brings the them, instead relying on arguments
formal charge. presented by the part

Countries Spain, China, Japan, Germany, most United States, England, Australia,
African nations, all South American Canada, India
nations (except Guyana), most of
Europe

Constitution Always Not always

Precedent Only used to determine administrative Used to rule on future or present cases
of constitutional court matters

Jury opinion In cases of civil law, the opinion of the Juries are comprised only of laypersons
jury may not have to be unanimous. — never judges and, in practice, only
Laws vary by state and country. Juries rarely lawyers — and are rarely
are present almost exclusively in employed to decide non-criminal matters
criminal cases; virtually never involved outside the United States. Their function
in civil actions. Judges ensure law is to weigh evidence presented to them,
prevails over passion. and to find fa

History The civil law tradition developed in Common law systems have evolved
continental Europe at the same time and primarily in England and its former
was applied in the colonies of European colonies, including all but one US
imperial powers such as Spain and jurisdiction and all but one Canadian
Portugal. jurisdiction. For the most part, the
English-speaking world operates under
common law.

Sources of 1. Constitution 2. Legislation – statutes 1. Constitution (not in the UK) 2.

Law and subsidiary legislation 3. Custom 4. Legislation – Statutes and subsidiary
International Law 5. [Nota bene: It may legislation 3. Judicial precedent –
be argued that judicial precedents and common law and equity 4. Custom 5.
conventions also function within Convention 6. International Law
Continental systems, but they are not
generally recogn

Type of Inquisitorial. Judges, not lawyers, ask Adversarial. Lawyers ask questions of
argument questions and demand evidence. witnesses, demand production of
and role of Lawyers present arguments based on evidence, and present cases based on the
lawyers the evidence the court finds. evidence they have gathered.

Evidence demands are within the Widely understood to be a necessary part

sovereign inquisitorial function of the of the litigants’ effective pursuit or
court — not within the lawyers’ role. As defense of a claim. Litigants are given
THEORIES OF LAW-
All theories of Law try and address 2 questions: 1. What is law?
2. How can we ascertain what law is?
Humans have always been fascinated as to weather law emanates from a tangible or
intangible source.
Natural law
 Attempts to identify the moral compass to guide the lawmaking power to promote the
good
 An objective moral order underlies natural law
 Argues that there are objective limits to legislative rulers
 Laws that are immanent in nature to which the legislative should correspond
 Accessible through human reason
 Very close to morality and often associated with ideas of ethics and God
 It profoundly influences common law
 An unjust law is no law at all : There is an objective moral order external to legal
systems
 Thomas Aquinas, Hugo Grotius, John Locke, Lon fuller

Legal positivism
 Developed in the 18th and 19th century
 No necessary connection between law and morality (Law comes into existence from
some basic social facts)
 The law is "posited" are enacted (Laws are made with socially accepted)
 Laws may seek to enforce justice and morality. But their success or failure in doing so
does not determine their legitimacy
 Legitimacy comes from the source of the law and not its merits
 Law is nothing more than a set of rules to provide order and governance in society
 Jeremy Bentham, John Austin, HLA hart

Legal realism
 Developed in early 20th century
 Highly skeptical of the law
 Real world practice of law is what determines what the law is
 Law is determined by the actual practices of courts, law offices etc. Not what
doctrines set forth
 Law is made by human beings and thus is subject to human frailities and
imperfections
 Law is little more than putty in the hands of a judge
 Oliver Weddell Holmes, Roscoe pound, Benjamin Cardozo

THREE JUDGES CASE-

S.P. Gupta case (December 30, 1981) or THE FIRST JUDGES CASE: It declared that the
“primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused
for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial
appointments for the next 12 years.

Supreme Court Advocates on Record Association versus Union of India or THE SECOND
JUDGES CASE (October 6, 1993): The majority verdict gave back CJI’s power over judicial
appointments and transfers. It says the CJI only need to consult two senior-most judges. “The
role of the CJI is primal in nature because this being a topic within the judicial family, the
Executive cannot have an equal say in the matter,” the verdict reasoned. However, confusion
prevails as the CJIs start taking unilateral decisions without consulting two colleagues. The
President is reduced to only an approver.
Here the word 'consultation' would shrink in a mini form. Should the executive have an equal
role and be in divergence of many a proposal, germs of indiscipline would grow in the
judiciary."

In Special Reference case of 1998 or THE THREE JUDGES CASE (October 28, 1998): On a
reference from former President K.R. Narayanan, the Supreme Court lays down that the CJIs
should consult with a plurality of four senior-most Supreme Court judges to form his opinion
on judicial appointments and transfers. In 1998, President K R Narayanan issued a
presidential reference to the Supreme Court as to what the term "consultation" really means
in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution.
The question was if the term "consultation" requires consultation with a number of judges in
forming the CJI's opinion, or whether the sole opinion of the CJI constituted the meaning of
the articles.

Over the course of the three different cases brought to the supreme court of India, the court
evolved the principle of judicial independence to mean that no other branch of the state -
including the legislature and the executive - would have any say in the appointment of judges.
The court then created the collegium system, which has been in use since the judgment in the
Second Judges Case [3] was issued in 1993. There is no mention of the collegium either in the
original Constitution of India or in successive amendments. Although the creation of the
collegium system was viewed as controversial by legal scholars and jurists outside India[citation
needed]
, the Parliament and the executive, both have done little to replace it. The Third Judges
Case of 1998 [4] is not a case but an opinion delivered by the Supreme Court of India
responding to a question of law regarding the collegium system, raised by then President of
India K. R. Narayanan, in July 1998 under his constitutional powers.

Article 124(2):
"Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the
High Courts in the States as the President may deem necessary for the purpose and shall
hold office until he attains the age of sixty-five years. Provided that in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always
be consulted."
And Article 217:
:Every Judge of a High Court shall be appointed by the President by warrant under his hand
and seal after consultation with the Chief Justice of India, the Governor of the State, and, in
the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High
Court.

Judicial meaning of the word "Recommendation"

In judgement on the presidential reference, Supreme Court has dealt elaborately, the modality
of rendering recommendation by a constitutional entity such as Supreme Court, President of
India, etc, It is not at the discretion of the person consulted to render the recommendation but
internal consultations with the peers shall be made in writing and the recommendation shall
be made in accordance with the internal consultations.[4]

TN GODAVARMAN THIRUMULPAD V. UNION OF INDIA-

The debate over defining a forest came to the fore in 1996 with the Supreme Court ruling in
the case of TN Godavarman Thirumulpad vs Union of India. The case began as a petition to
stop illegal felling of timber in the Nilgiri hills but expanded into an overhaul of the Indian
forest policy. The Supreme Court said that forests would be defined by their “dictionary
meaning”, without elaborating what this meaning was. It also assumed responsibility for
implementing the Forest Conservation Act with this new definition.

The court ordered all non-forest activity like sawmills and mining to be suspended in forest
areas and stopped felling of trees. It kept the Godavarman case open using the device of a
“continuing mandamus” and heard hundreds of matters related to the implementation of the
Forest Conservation Act. The ruling excluded the lower courts from admitting such
application, leaving the Supreme Court the sole administrator of the law when it came to
forest matters. This was until the creation of the National Green Tribunal in 2010 to “dispose
of cases relating to environmental protection and conservation of forests and other natural
resources”.

While the apex court has been both commended for taking such dramatic action to stop
indiscriminate destruction of forests and criticised for overstepping its boundaries, the
Godavarman case has gone on to show how essential it is to define forests.

In its 1996 ruling, the court had asked states to identify, demarcate and notify forest areas.
Even 18 years later, many states have failed to do so. While hearing a case in 2014 of
whether a hotmix plant should be allowed to operate in Manda Khal village in Uttarakhand,
the National Green Tribunal noted the state government’s failure to chalk out its deemed
forests.

The Indian Forest Act of 1927 does not define forests, though forest areas have been legally
notified under it as reserve forest, protected forest or village forest.

State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat

(2005 8 SCC 534)

was an astonishing case relating to cow slaughter. The State of Bombay had enacted the
Bombay Animal Preservation Act, 1948, prohibiting the slaughter of animals which were
useful for milch, breeding or agricultural purposes. This Act was extended to the State of
Gujarat by the Bombay Animal Preservation (Gujarat Extension and Amendment) Act, 1961.
This Act was amended in 1994 by the Bombay Animal Preservation (Gujarat Amendment)
Act, 1994. This statute was challenged by the representative bodies of Kureshis. The Akhil
Bharat Krishi Goseva Sangh, the Hinsa Virodhak Sangh, the Jeevan Jagriti Trust and the
Gujarat Prantiya Arya Pratinidhi Sabha were impleaded as party respondents. The High Court
allowed the writ petition and struck down the impugned legislation as ultra-vires the
Constitution holding that the statute imposed an unreasonable restriction on fundamental
rights.
The challenge to the constitutional validity of the legislation was founded on three grounds.
That the total ban offended the religion of the Muslims as the sacrifice of a cow on a
particular day is sanctioned by Islam. Secondly, that such a ban offended the fundamental
rights of the Kasais (butchers) under Art. 19(1)(g) and was not a reasonable and valid
restriction on their right. Thirdly, that a total ban was not in the interest of the general public.
Chief Justice S.R. Das speaking for the constitutional bench held that the total ban on the
slaughter of cows and calves of cows and she-buffaloes was valid. The constitutional bench
further held that the total ban on the slaughter of she-buffaloes or breeding calves or working
bullocks so long as they are capable of being used as milch or draught cattle was also valid.
However, the constitutional bench held that a total ban on the slaughter of she-buffaloes,
calves and bullocks after they cease to be incapable of yielding milk or breeding or working
could not be supported as reasonable and in the interests of the general public and was
invalid.
It appears that in this case, the first ground of challenge namely, that the sacrifice of a cow
sanctioned by Islam was turned down by the court due to the meagre material placed before
the court. It appears that no one specially competent to expound the religious tenets of Islam
filed an affidavit making reference to any particular Surah of the Holy Quran which requires
the sacrifice of a cow. The Constitutional Bench, in this case, concluded that the cow progeny
ceased to be useful as a draught cattle after a certain age.

EVOLUTION OF NEGLIGENCE AND TORTS-

Negligence took over a century to evolve piecemeal from case law.

The common laws are malleable, they are not absolutely bound by precedent, but can re
interpret and revise the law, without legislative interventions, to adapt to the new trends in
political, legal, social world. The law can change gradually without sharp breaks thereby
reducing disruptive effects.
One of the examples of this change is in the tort of negligence. The traditional 19th century
rule was that a plaintiff could not recover for a defendant’s negligent production unless they
were in privity of contract. Thus, only the immediate purchaser could recover damages for a
product defect.
Winterbottom v. Wright (England) 1842
Winterbottom was hired to drive a stagecoach. Wright is the owner of the stagecoach who
was under contract to the post master general to maintain the stagecoaches.
At the time, negligence was only associated with privity of contract. Thus in this
case, Winterbottom 's employer has a right to sue, but not Winterbottom as he was a third
party to the contract. The court held that it would be “absurd and outrageous consequences” if
an injured person could sue any person involved.
If the plaintiff can sue, anyone would be able to sue. Thus the courts did not allow
Winterbottom the right to sue. Consumers who were injured by defective products had no
redress.

The first exception to this case arose in 1852 case Thomas V. Winchester which held that
mislabelling a poision as an innocuous herb and then selling the mislabelled poison put
“human life in imminent danger”. Thomas used this to create an exception to the privity rule.
Yet the privity rule survived in Cadillac motor co. v. johnson (1915) held that car owner
could not recover for injuries rom a defective wheel when the contract is only with
automobile dealer and not manufacturer even though there was no question of wheel being
made of inferior quality.

Finally in the famous case of Macpherson v. Buick Motor Co. 1916

Wheel manufacture sells to Buick, who makes the car, sells to a retailer/dealer, who sells to
consumer. Wheel breaks and plaintiff is injured.
Judge Cardoza : if the nature of the product, if made improperly, would be inherently
dangerous. And if the manufacturer knows that it will affect the consumer and
others. Then there is scope to sue. The case removes the requirement of privity of contract for
duty in negligence actions.
He held that the principles of Thomas v Winchester is not limited to poisons or dangerous
things but also to normal things. If the nature of thing is such that it is reasonable to place
limb and limb in danger when made negligently then it is thing of danger. The manufacturer
of the thing is under a duty to make it carefully.. there must be knowledge of danger not
merely possible but probable.

Later in Donoghue V Stevenson ( 1932) the doctrine of negligence was established.

This case illustrates two crucial principles- 1- the law evolves, this evolution is in the hands
of judges and judges have been making law for hundreds of years
2- the reason given for a judgement is often more important in the long run than the outcome
in a particular case. This is why the judgements are too long and involves rationales and
opinions.

DONOGHUE V. STEVENSON (1932)-

Facts
On the 26 August, 1928, May Donoghue and a friend were at a café in Glasgow (Scotland).
Donoghue's companion ordered and paid for her drink. The cafe purchased the product from
a distributor that purchased it from Stevenson. The ginger beer came in a Dark bottle, and the
contents were not visible from the outside. Donoghue drank some of the contents and her
friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. The remains
of a snail in a state of decomposition dropped out of the bottle into the tumbler. She was
unsuccessful at trial and appealed the decision to the House of Lords. Finally, her claim was
successful.
Issue
1. Does the defendant owe a duty of care to the plaintiff being as there is no contractual
term ?
Decision
Appeal allowed.
Manufacturers owe the final consumer of their product a duty of care (at least in the instance
where the goods cannot be inspected between manufacturing and consumption). There need
not be a contractual relationship, or privity, in order for the final consumer to sue in
negligence.
Lord Atkin’s judgment stated:
The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to
be – persons who are so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.
Donoghue v Stevenson [1932] AC 562
This is the ‘neighbour principle’, a way of describing at a general level which relationships
give rise to a duty in law to take care.

Grant v Australian Knitting Mills,[1]is a landmark case in consumer and negligence law from
1935, holding that where a manufacturer knows that a consumer may be injured if the
manufacturer does not take reasonable care, the manufacturer owes a duty to the consumer to
take that reasonable care.

M.C. MEHTA V. UNION OF INDIA- 1987 SCR (1) 819-

(Facts) -:
A writ petition was filed by M.C Mehta, a social activist lawyer, he sought closure for
Shriram Industries as it was engaged in manufacturing of hazardous substances and located in
a densely populated area of Kirti [Link] the petition was pending, on 4 and 6 December
1985, there was leakage of oleum gas from one of its units which caused the death of an
advocate and affected the health of several others. The incident took place on December 4,
1985.
Just after one year from the Bhopal gas disaster a large number of persons – both amongst the
workmen and public were affected. This incident also reminded of the Bhopal gas holocaust.
M.C Mehta filed a PIL under Articles 21 and 32 of the Constitution and sought closure and
relocation of the Shriram Caustic Chlorine and Sulphuric Acid Plant which was located in a
thickly populated area of Delhi.
Factories were closed down immediately as Inspector of Factories and Commissioner
(Factories) issued separate orders dated December 8 and 24, 1985 . This incident took place
only a few months before Environment (Protection) Act came into force, thus became a
guiding force for having an effective law like this.

Issues -:
1. What is the scope of Article 32 of Constitution ? whether article 21 is available
against sriram?
2. The rule of last Absolute Liability or Rylands vs Fletcher rule to be followed .
3. Issue of compensation to be awarded

RULES-
Article 32
“Remedies for enforcement of rights conferred by this Part
 1. The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred
by this Part …”
Article 21:
“Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure
established by law”

JUDGEMENT-
“Article 32 does not merely confer power on this Court to issue a direction, order or writ for
enforcement of the fundamental rights but it also lays a constitutional obligation on this
Court to protect the fundamental rights of the people and for that purpose this Court has all
incidental and ancillary powers including the power to forge new remedies and fashion new
strategies designed to enforce the fundamental right.”
“The power of the Court to grant such remedial relief may include the power to award
compensation in appropriate cases…Ordinarily, of course, a petition under Article 32 should
not be used as a substitute for enforcement of the right to claim compensation for
infringement of a fundamental right through the ordinary process of civil courts.”

Article 12
“Definition –
• In this part, unless the context otherwise requires, the State includes the Government
and Parliament of India and the Government and the Legislature of each of the States
and all local or other authorities within the territory of India or under the control of
the Government of India”
The Court traced the development of Article 12 and analysed the criteria by which a
corporation could be termed ‘other authority’ under Article 12
•
• “…this Court has throughout the last few years expanded the horizon of Article 12
primarily to inject respect for human rights and social conscience in our corporate
structure. The purpose of expansion has not been to destroy the raison d’eter of
creating corporations but to advance the human rights jurisprudence…”
•
• “But we do not propose to decide finally at the present stage whether a private
corporation like Shriram would fall within the scope and ambit of Article 12”

Does the rule in Rylands v Fletcher apply or is there any other principle on which the
liability can be determined?

"the person who for his own purpose brings on his lands and collects and keeps there
anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do
so, is prima facie answerable for all the damage which is the natural consequence of its
escape”

“We have to develop our own law and if we find that it is necessary to construct a new
principle of liability to deal with an unusual situation… there is no reason why we should
hesitate to evolve such principles of liability merely because it has not been done so in
England”

“…where an enterprise is engaged in a hazardous or inherently dangerous industry and

harm results to anyone on account of an accident in the operation of such hazardous or
inherently dangerous activity…enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident and such liability is not subject to any of the
exceptions which operate vis-à-vis the tortious principle of strict liability under Rylands v
Fletcher …”

DK BASU V. STATE OF WEST BENGAL

BENCH: Kuldip Singh, A.S. Anand
COURT: Supreme Court Of India
YEAR OF JUDGEMENT: 1996
APPLICABLE LAW: Section 176 of Crpc was applied in this case i.e. enquiry done by the
Magistrate in the cause of death
Article 21 i.e Right to life and personal liberty , Article 22 i.e. arrest and detention in certain
cases and Article 20(3) i.e an accused shall not be compelled to be a witness against himself
were also used.
FACTS:
In this case, Mr. DK Basu the executive Chairman of Legal Aid Services, which is a a non-
political organisation registered under the Societies Registration Act, wrote a letter to the
Chief Justice of India, to raise concern over the matter of recent deaths and violence which
were being reported in the police custody and lockups. In the letter, it was mentioned that the
crime reported goes unpunished despite many efforts made and also that court needs to
analyze and issue raised so that family members of the victim are given some compensation
in the acquittance of their suffering. The letter was treated as a writ petition when it was filed
before the Supreme Court of India. Shri Ashok Kumar Johri addressed the letter to the Chief
Justice Of India by highlighting the death of a person named Mahesh Bihari of Aligarh in
Police Custody. In this case, petitioners also rose concern over the police powers and that
compensation should be given to people if there is any infringement of their rights mentioned
in the article 21 and 22 of the Constitution. The defendant i.e. the State of West Bengal said
that the writ petition was misconceived, inappropriate and misleading in law and thus denied
the allegations which were put against them.

ISSUES-
The Issue in the Present Case pertained to Custodial Torture and Deaths by the Police.

ORDER:
In this case, 11 guidelines adhering to Article 21 and article 22(1) were prescribed by the
court which need to be strictly followed otherwise the official would be liable to punished
for the contempt of court and proceedings must be instituted against him.
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee
should have clear identification and name togs with their designations.
2. The police personnel carrying out the arrest shall make a memo at the time of the arrest.
3. The person who has been arrested shall be entitled to have a friend, relative or any other
person known to him that he has been arrested or detained at the particular place.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police
and where the friend or relative of the arrestee lives outside town through the legal Aid
Organisation in the District and the police station of the area concerned telegraphically within
a period of 8 to 12 hours after the arrest.
5. The arrested person must be aware of his right to inform someone of his arrest.
6. An the entry should be made in the place of detention and name of the person in custody,
his friend who has been informed and details of police officials must be attached within it.
7. The arrestee should be examined at the time of arrest and any injuries on his body must be
recorded. The inspection memo must be signed both by the arrestee and police officer
concerned and a copy must be provided to the arrestee.
8. The arrestee should be subjected to medical examination every 48 hours during his
detention by a trained doctor .
9. Copies of all the documents including the memo of arrest should be sent to Magistrate for
his record.
10. The arrestee must be permitted to meet his lawyer during the interrogation but not
throughout the whole interrogation.
11. A police control room should be provided at all district and state headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest and
should be displayed on the notice board of police control room.
CONCLUSION:
The case thus gave a landmark judgement where guidelines regarding the arrest of a person
were prescribed otherwise more offences were committed in the name of doing justice. It
prevents any infringement with the rights of an individual during detention and thus protects
all the citizens by certain procedures established by law. Although now,proper procedure has
been established by law and anyone who does contempt of court is liable to be punished, still
there are crimes similar to those in the above case, for instance police officials refuse to file
an FIR, or does something due to which many innocent people have to suffer injustice and
due to which there is infringement with the fundamental rights of the citizens .Therefore,
more strict laws should be made so that innocent people have not to suffer.

Interpretation of Statutes

Statute: A written act passed by the legislature

Act: Section, sub section
Bill: Clause, sub clause
Constitution: Article, sub article (In the United States, clause is used instead of sub article)
Act ≠ Law: Law is a wider term. All acts are laws but all laws are not acts. For example, laws
also include executive orders, precedent etc.

Doctrines of Statutory Interpretation

Statute: A Statute is a rule or order having the force of law, issued by the executive authority
of the government under power granted by the Constitution.

Interpretation: The objective of the rules of interpretation is to help the judge ascertain the
intention of the legislature - not control that intention or confine it.
Lord Reid: “Where a statutory provision on one interpretation brings about a startling and
inequitable result, this may lead court to seek another plausible interpretation which will do
better justice.”

LITERAL RULE

The words of an enactment are to be given their literal meaning, and if such meaning is clear
and unambiguous, effect should be given to provision of a statute whatever be the
consequences. Judges can’t add or subtract or modify the letter of the law.
Literal rule: “Where the meaning of statutory words is plain and unambiguous, it is not for
judges to invent fancied ambiguities as an excuse for failing to give effect to its plain
meaning because they themselves consider that the consequences of doing so would be
inexpedient, unjust or immoral.”
– Lord Diplock

 R v. Harris
 Defendant bit off victims nose.
 Statute made it an offence to “stab, cut or wound”.
 Court observed that under the literal rule the act of biting did not come within the
meaning of stab, cut or wound as these words implied that an instrument had to be
used. Thus defendants conviction was overturned.
 Fisher v. Bell
Defendant had a flick knife displayed in his shop window with a price tag on it.
Statute made it a criminal offence to offer such flick knives for sale.
Court observed that good on display in shops are not “offers” in the technical sense under
contract law but merely an invitation to begin the negotiation process. Thus defendants
conviction was overturned.

Advantages:
 Provides no scope for judges to use their opinions or prejudices.
 Upholds the separation of powers.

Disadvantages:
 Disagreement as to what amounts to ordinary/natural meaning of a word.
 Creates loopholes in the law.
 Fails to recognize the complexities and limitations of language.
 Can lead to injustice or absurd results: London and North Eastern Railway v. Berriman:
 A railway worker was killed while oiling the track.
 A statute provided compensation payable on death for those “relaying or
repairing” the track.
 Under the literal rule oiling did not come under either of these categories.
 So the worker’s widow received no compensation.

Lord Denning: “A judge must not alter the material of which the fabric is woven, but he can
and should iron out the creases.”

GOLDEN RULE
This rule states that the literal meaning should not be taken but the meaning should be chosen
contextually. Fitting the context would mean:a) avoiding absurdity or inconvenience, and b)
avoiding conflict with other sections of the Act.
Golden rule: Sensible meaning of a word or phrase preferred over an absurd one if both are
linguistically plausible.

 Grey v. Pearson: Ordinary grammatical sense of the words is to be adhered to unless that
would lead to an absurdity or inconsistency, in which case the grammatical and ordinary
sense of the words may be modified so as to avoid such absurdity.
 Adler v George
Statute made it an offence to obstruct a member of the armed forces “in the vicinity of a
prohibited place”.
Defendant was in prohibited place rather than in vicinity of it at the time of obstruction.
Court applied golden rule, as it would be absurd for a person to be liable if they were near a
prohibited place and not if they were actually in it. Defendants conviction was upheld
 Re Sigsworth
A son murdered his mother and she had not made a will.
As her only child he stood to inherit her entire estate
Court applied golden rule as an application of the literal rule would lead to a repugnant result.
He was thus entitled to nothing

Advantages:
 Errors in drafting can be corrected without having to wait for amendments.
 Decisions are more in line with legislature’s intention.
 Closes loopholes.
 Gives a more just result.
 Brings common sense to the law.

Disadvantages:
 Judges can change the meaning and thereby become lawmakers – disturbs the separation
of powers.
 Disagreement.

MISCHIEF RULE

 The main aim of this rule is to determine the ‘mischief and defect’ that the statute in
question has set out to remedy, and interpret the words in the statute in such a way as to
suppress the mischief and advance the remedy.
Lord Scarman adds: “We are to be governed not by Parliament’s intentions but by
Parliament’s enactments.”
Mischief rule: Four things are to be discerned.
- What was the Common Law before the act?
- What mischief and defect did the Common Law not provide for?
- What remedy had the Parliament resolved and appointed?
- The true reason and remedy
• Heydon Case:For true interpretation of statutes, four things have to be considered:
what was the common law before the making of the act
what was the mischief and defect for which the common law did not provide
what remedy has the parliament resolved to correct it
the true reason of the remedy
 Smith v. Hughes
Under Street Offences Act, it was a crime to solicit or loiter in the streets for the purposes of
prostitution.
Defendants were calling to men in the street from balconies and tapping on windows. They
claimed they were not guilty as they were not in the “street”.
Judge applied mischief rule to come to the conclusion that they were guilty as the intention of
the act was to cover the mischief of harassment by prostitutes.
 Elliot v. Grey
Under the Road Traffic Act 1930 it was an offence to use an uninsured vehicle on the road.
The defendant’s car was parked and had its batteries removed.
Defendant argued that he was not “using” the car on the road as it was clearly not drivable.
Court held that care was being used on the road as it represented a hazard and therefore
insurance would be required in the event of an accident. Therefore court used mischief rule as
the statute was aimed at ensuring people were compensated when injured due to hazards
created by others.

Advantages:
 Closes loopholes.
 Allows the law to evolve and adapt to changing needs.
 Avoids unjust or absurd results.

Disadvantages:
 Can create a crime after the fact.
 Gives judges a law making role – infringes on separation of powers.
 Judges’ own prejudices, sense of morality, etc. make it subjective.
 Sometimes the mischief can be hard to identify, leading to uncertainty.

Riggs v. Palmer (1889, New York)

Statement of the facts:

Fransis Palmer executed a will leaving his estate to his two daughters, Mrs. Preston and Mrs.
Riggs and his grandson, Elmer Palmer. Shortly after, Francis Palmer remarried, but drafted a
prenupt. Elmer Palmer poisoned his grandfather to death in 1882, and was later convicted of
murder. Mrs. Preston and Mrs. Riggs brought a claim to consider the provisions of the will
which included Elmer as void. In response, the trial court dismissed the suit.
Rule of Law or Legal Principle Applied:
For the purpose of preventing an absurd result, in interpreting a statute, a court may stray
from the statute’s plain text.
Issue and Holding:
Whether a court may stray from a statute’s text to prevent an unjust result? Yes.
Judgment:
The New York court of appeal’s reversed the trial court’s judgment.
Reasoning:
The court held that when enforcement of a statute renders an absurd or unreasonable result, a
court may interpret the statute in a manner which displays the lawmakers’ true intentions.
Here, the state Statute of Wills is clear is outlining who may inherit.
Since Palmer is a named beneficiary in a validly executed will, the law permits him to inherit
the estate. The issue is, a murderer cannot reasonably inherit from his victim.
When examining the statutory intent, lawmakers wanted to make sure that beneficiaries
mentioned in the will would receive the property they were left. The same cannot be said of a
beneficiary who murdered the testator to expedite receiving his inheritance.
Significance:
This case set the precedent for when straying from a statute would be permissible, even when
the content is clear. To prevent an absurd result, it is ok for a court to interpret a statute in a
way which establishes the statutory intent.

PEPPER V HART-

A statute is always enacted in response to a problem. A corrective law is needed when there
is a loophole in the current law. [Pepper v Hart, 1993 United Kingdom]

Purposive interpretation v Mischief Law

· Purposive is a wider concept than mischief rule- no need to necessarily find any mischief
under the current statute. Hence a statute must be read in light of its purpose.
· Whenever you interpret in light of intent and purpose, there is always a search to find and
eliminate pre-existing mischief ( pro-mischief)

Pepper v. Hart (illustration of mischief rule)

Issue- “how you could use parliamentary materials (debates, committee reports) to interpret
the statute”
pre-existing norm- courts couldn’t look into parliamentary materials and had to implement
nothing but the word of the statute
Arguments for the norm-
· Need for clarity and an absence of speculation that comes with a tonne of debate and
speech-places a huge onus on citizens when they carry out their actions
· Leads to judicial discretion- which view is more important- absence of such norm could
lead to cherry picking
· Efficiency- All that intent is encompassed in the statute to increase efficiency. Incoherent
and uncertain material just makes it more inefficient
· Separation of powers- the norm protects the certainty of a court decision; its absence would
destroy that very protection and bring the courts ability into question.

· It leads to a breach in parliamentary privilege- it infringes on the freedom of speech during

the parliament as every word uttered by every member can be used in a court of law; going
against parliamentary privilege
Arguments for this norm-
· That referring to parliamentary material could make it easier to understand its intention,
leading to the judiciaries enforcing judgements with a greater fidelity to the written law and
its intent

Pepper v Hart was decided in favour of the defendant, and the court also ruled that when
parliamentary legislation is unambiguous, then the court may in certain circumstances refer to
statements made in the House of Commons and the House of Lords to interpret the meaning
of legislation. Doing so earlier would have been a violation of parliamentary privilege.

Purposive Interpretation: “A statute should be interpreted in light of its purpose.” There need
not be any inadequacy to interpret statutes in such manner. Hence it is wider than the
mischief rule.

Other rules of interpretation: -

- Ejusdem generis: If a provision has a number of specific words followed by general
words, the general words will be interpreted in light of the specific words.
- Noscitur a sociis: “A word is known by the company that it keeps.” A word is
interpreted in the context of its accompanying words.
- Expressio unius est exclusio alterius: “When one or more things of a class are
expressly mentioned others of the same class are excluded.”
- Presumptions: Retrospective law, general law, special law etc.
- Internal and external aids to interpretation of statutes. (Definitions, general clauses
act, definitions, previous legislations if referenced etc.)

Ratio (judgements): Basis for arriving at the conclusions. Rest all is obiter dicta.

·Legislative Intent (also known as “originalism”). A second approach is to interpret the

statute in the fashion that will best further the intent of the legislature. In trying to determine
the intent of the legislature, a court will often look at the legislative history of the statute.
Source: Legislative History. What did the committees that drafted or considered the statute
say in committee reports? What claims did supporters make in
legislative hearings, or debate on the floor of the legislature, about how the statute should be
interpreted?

: Precedent. Sometimes, the court will interpret a statute in a particular way, because that’s
the way it’s always been done. In other words, the court will rely on prior precedents.
Sources: The cases in all those opinions you’re reading.

Purpose. Often the court will engage in “purposive reasoning,” trying to identify the purpose
for the statute by asking, “What was the legislature trying to accomplish?” and “What
interpretation will best further that purpose”?
Sources: Historical context. What were the issues of the day when the legislature enacted the
statute? What social problems was the legislature trying to address?

Doctrine of Precedents
The doctrine of precedents says that one judgements binds the other judgements. Judgements
which act as precedent constitute law. This is because similar cases should be treated in a
similar manner under the equal protection clause. Law once decided forecloses other
questions, and having precedents increases efficiency of courts. Cases decided by the
Supreme Court are binding on all other courts. No lower court can overturn a decision by a
higher court. A case which is decided later has higher importance.

Stare Decisis: “Let a decision stand.” It is the foundational principle of precedents.

Types of benches: -
- Single, 1 judge
- Division, 2 judges (if one concurs and the other dissents, a third judge hears the case
again and decides it)
- Full bench, 3 judges
- Constitutional bench, five judges
- More judges- no nomenclature as such
A decision by a bench with a lesser number of judges cannot overrule a decision made by a
bench with a greater number of judges if the case is being heard in the same court. However,
in the same court if the number of judges are the same in two benches and they contradict
each other, the matter may be referred to a higher bench in consultation with the chief justice.

Res Judicata: A matter decided by a competent court cannot be pursued by the parties further
in the same court. Appeals however can be made in certain cases at a higher court.

In some countries, constitutional courts run parallel to their supreme court. They have the
final say in constitutional matters.

Limitations: There is a time period for appealing a case. If that period lapses, the appeal
cannot be filed and the judgement by the highest court which decided the case stands.

Retrospective application: Don’t only look at current law, also look at what the law was when
the event occurred if it was different. Judgements given by courts generally have
retrospective application unless declared by the court.

How res judicata is a restriction on stare decisis

Example: Finance Act of 1941, United Kingdom. Under this act, taxes were increased heavily
to meet war expenditure. A clause therein said that any annuity provided for before 3 rd
September, 1939 shall by liable to be taxed. If the annuity was free of tax at that time, they
would only be required to pay tax to the extent of increase in taxes. The question of when
annuity is provided was raised. Re Warring. Westminster Bank v. Audrey, 1942 said that
annuity is provided for when the will is made.
However, Berkeley v. Berkeley, 1946 decided that annuity is provided for only when the
testator dies.
The third case, Re. Warring. Westminster Bank v. Burton-Butler, 1948 said that for the first
sister in case-1, res judicata applies. For the second sister, Berkeley v. Berkeley acted as
precedent and hence got tax benefits.

Persuasive value: If a judgement doesn’t have binding value, it might have persuasive value.
For example, a case decided by a court at the same level in another state, district or area.
Mala in se: Something which is inherently bad. For example, murder, theft, rape etc.
Mala prohibitum: Something which is bad because the law says so. For example, possession
of drugs, underage drinking etc.

Article 141 states that the law declared by the supreme court [by virtue of being the highest
court in the land] shall be binding on all courts in India- this is taken as the proof of India
being a common law country as well as the recognition of the doctrine of precedence.
Three notions of precedent-
1. Vertical order of precedent- judgement of a higher court will always prevail over that of
the lower ( binding precedent)
2. Horizontal order of precedent- The judgement on a previous case by a co-ordinate court
(the case separated not by court but time gap) will be upheld in similar cases by the court in
question (stare decisis), i.e. if the Bombay High Court decided on an issue earlier, it would be
bound by its own previous decisions, but decisions on similar matters in different high courts
would only have persuasive value.
3. By the bench in question(only in India)- The greater the bench of judges that make a
decision, the greater its hierarchy amongst precedents; i.e. a 3 bench decision prevail over a
single judge ruling.

Principle of Res Judicata-

If a matter has been decided by the court, it cannot be agitated before the SAME court again.
A system of appeals has been put in place however, with finality being achieved either
through judgement of the highest court in the land or through implicitly accepting a given
decision like failing to submit an appeal within the stipulated timeline.

Precedents: -
- A case decided by a higher court acts as precedent (vertical)
- A case decided by the same court earlier acts as precedent (horizontal)
- A case decided by a bench with a greater number of judges can also have precedential
value.

Binding precedent: “A case is decided in a certain manner not because it is right, but because
previously a higher court ruled in that manner.”

US Supreme Court Justice Oliver Wendell Holmes was a huge opponent of precedent, called
it an outdated idea. On the other hand, US Supreme Court Justice Louis Brandeis said that
“Sometimes it is desirable that a matter is decided rather than decided correctly.” His
statement was considered while deciding Roe v. Wade in 1973.
Jeremy Bentham was a long-time critic of precedent and common law.

Transaction costs refer to costs incurred in arriving at a decision. Higher the uncertainty,
higher the transaction costs.

Macpherson v. Buick Motor Co, 1914 and decided in 1916: Ultimately the manufacturer’s
liability for defect, privity of contract lost.

Ratio Decidendi
Ratio decidendi refers to the rationale behind the decision. It is thus the principle which the
case establishes in the rule of law.

Arthur Goodhart: While finding the ratio for the case, don’t look for the reason. This is
because reasons are subjective and might be wrong.

“Don’t look at what judges say, look at what they do.” Goodhart criticises this argument as it
is unwise to be solely guided by reason.

First figure out all material facts. The opinion of judges is based on whichever facts the
judges consider material.

If there are no facts in the judgement, look for records. However, if both exist, judgements
override records.

If there are multiple opinions, look for what is common between each and every one of them.
Later, link the facts to the conclusion.

Wilkinson v Downton: Whoever commits a voluntary act which inflicts injury upon another
person, whether it was intended or not shall be liable for his actions.

Finding a ratio is an exercise in abstraction- Glanville Williams.

John Salmond- A precedent therefore is a judicial decision which contains in itself a

principle. The underlying principle which thus forms its authoritative element is often termed
the ratio decidendi. The concrete decision is binding between the parties to it, but it is the
abstract ratio decidendi which alone has the force of law as regards the world at large.

The second court or case decides to choose a case as precedent. The court can reject a case as
precedent if they clearly distinguish the first and second case.

Parens Partiae jurisdiction: If a subject or citizen is unable to protect oneself, the monarch or
government would do so. (Euthanasia for example)

STARE DECISIS
 The doctrine of judicial precedent is based on stare decisis. That is the standing by of
previous decisions. Once a point of law has been decided in a particular case, that law
should be applied in all future cases containing the same material facts.
 For example, in Donoghue v. Stevenson, the court held that a manufacturer owed a duty
of care to the ultimate consumer of the product. This set a binding precedent that was
followed in later cases.

RATIO DECIDENDI
• In order for the doctrine of judicial precedent to work, it is necessary to be able to
determine what a point of law is. In the course of delivering a judgment, the judge
will set out his reasons for reaching a decision. The reason(s) that are necessary for
 the judge to reach his decision amount to the ratio decidendi (the “reason for
deciding”) of the case (the holding).
• The ratio decidendi forms the legal principle which is a binding precedent meaning it
must be followed in future cases containing the same material facts. In simple terms, a
ratio is a ruling on a point of law.

OBITER DICTA
• In order for the doctrine of judicial precedent to work, it is necessary to be able to
determine what a point of law is. In the course of delivering a judgment, the judge
will set out his reasons for reaching a decision. The reason(s) that are necessary for
the judge to reach his decision amount to the ratio decidendi (the “reason for
deciding”) of the case (the holding).
• The ratio decidendi forms the legal principle which is a binding precedent meaning it
must be followed in future cases containing the same material facts. In simple terms, a
ratio is a ruling on a point of law.
• Obiter dicta are judicial opinions on points of law which are not directly relevant to
the case in question. They are made when a judge chooses to give some indication
of how he or she would decide a case similar, but not identical, to case under
consideration. These statements are often meant to clarify the legal principle which
the judge proposes to apply in his or her judgment. For this reason, obiter dicta often
take the form of analogies, illustrations, points of contrast or conclusions based on
hypothetical situations.
• Obiter dicta in one case might be adopted as ratio decidendi in subsequent cases. This
occurs when a situation regarded as hypothetical by one judge arises in a subsequent
case.

BINDING V. PERSUASIVE PRECEDENTS

• Binding precedents are the ratios from courts above the current court in the judicial
hierarchy. The basic rule is that a court must follow the precedents from a higher
court, but they are not bound to follow decisions from courts lower in the hierarchy.
• Alternatively, there are “persuasive precedents.”
• Judicial statements that are not binding but may be taken into account– Obiter
dicta
• Case law from other jurisdictions

WAYS OF AVOIDING PRECEDENT

 Overruling: This is where a court higher in the hierarchy departs from a decision made
in a lower court. The previous decision is no longer binding. Another scenario is where
the same court decides to no longer follow a precedent that it had set in a previous
judgment
Example: In Lawrence v. Texas, the US Supreme Court decided to overrule the precedent
that it had set in its earlier case Bowers v. Hardwick
 Reversing: This is where a higher court departs from the decision of the lower court on
appeal in the same case. The decision of the lower court is no longer binding. Reversing
is very similar to overruling, and generally these terms are used interchangeably, even
though there is a slight technical difference
 Distinguishing: This is where the facts of the case are deemed sufficiently different so
that the previous case’s precedent is no longer binding on the current case.
Example: Balfour v. Balfour (1919) and Merritt v. Merritt (1970)
Balfour v. Balfour:
• A husband worked oversees and agreed to send maintenance payments to his wife. At
the time of the agreement the couple were happily married. The relationship later
soured and the husband stopped making the payments. The wife sought to enforce the
payments.
• Held: The agreement was a purely social and domestic agreement and therefore it was
presumed that the parties did not intend to be legally bound.

Merritt v. Merritt:
• A husband worked oversees and agreed to send maintenance payments to his wife. At
the time of the agreement the couple were happily married. The relationship later
soured and the husband stopped making the payments. The wife sought to enforce the
payments.
• Held: The agreement was a purely social and domestic agreement and therefore it was
presumed that the parties did not intend to be legally bound.

Logic

Logical theory was primarily developed by Aristotle. During the age of enlightenment,
thinkers challenged it and came up with their own theories. Logic is a question of
methodology, and is defined as reasoning based on the strict principles of validity.
he law is the body of rules imposed by a State upon its members which is designed to
regulate
human conduct within that State. The courts interpret these rules of conduct, decide whether
they
have been broken and pass sentence or make an award of compensation. A certain standard of
behavior is thereby maint
he law is the body of rules imposed by a State upon its members which is designed to
regulate
human conduct within that State. The courts interpret these rules of conduct, decide whether
they
have been broken and pass sentence or make an award of compensation. A certain standard of
behavior is thereby maint

Logic thus may not have any contingency as long as the premise is verifiable.

Logic has three broad types: -

1. Deductive
2. Inductive
3. Informal logical fallacies
Justice Oliver Wendell Holmes on the other hand criticised logic by saying “Life of law is not
logic but experience.”
Deductive logic was first formulated by Aristotle through syllogism and the validity of
arguments. For example: -
- All men are mortal (principle)
- Socrates is a man (fact)
- Therefore, Socrates is mortal
Here, there is a major premise and a minor premise, after which a conclusion must follow.

Inductive logic on the other hand says that the conclusion may follow based on the premises.
Rather, inductive logic is based more on observations than assumptions.

A statement has falsifiability if there is inherent possibility that it can be proven false. For
example, a statement like “all swans are white” has falsifiability because it is a well-known
fact that black swans also exist.

The idea of falsifiability was put forth by Karl Popper. According to him, a statement is
considered to be scientific as long as it has falsifiability.

In deductive reasoning, the premises must be true. Only then will a proper conclusion follow.

In law, the legal principle is the major premise while the facts constitute the minor premise.
Using syllogism, a conclusion can be arrived at. Deductive logic is thus a type of legal
formalism, i.e. the theory of adjudication.

Deductive logic can thus be applied only when all factors are visible and taken into
consideration. Deductive logic by itself is insufficient to prove the correctness of the given
facts.

Logic Continued

Inductive logic states that a conclusion may or may not follow from a given set of premises.
A definite conclusion can only follow if the premises can be catalogued.

Reasoning by analogy: If two or more situations are similar in certain significant aspects then
it implies that further similarity between them will in all probability also exist. However, the
element of uncertainty is always existing since the statements are falsifiable.
For an analogy to be strong: -
- Increase the number of similar items and confirming incidents
- Find more similar characteristics
- Minimise dis-analogies
- Items should be similar in most relevant aspects; greater the relevance, stronger the
analogy

In the legal system, analogies are used in the doctrine of precedents. Citing a case as
precedent can by justified better if the above-mentioned steps are used.
Another method in inductive reasoning is Mill’s method, which was formulated by the
English philosopher John Stuart Mills. It has the following elements: -
- It starts with the method of agreement, where one has to discern whether a certain
cause has led to a certain effect. However, this only gives a probable conclusion and
works best only if there is a single common antecedent.
- One can also go by the method of difference, wherein the uncommon antecedent is the
cause behind the situation. However, the conclusion here is also not probable and
works best only if there is a single uncommon antecedent.
- According to the method of correlation, if the change in one variable leads to a
change in the results, then the change in the variable is the cause behind the result;
ceteris paribus.

Mill’s method is also applied in law to narrow down the results and look for what is in the
public’s best interest.

Common logical fallacies: -

- Ad hominem: When one attacks the opponent’s personality or traits instead of his
arguments
- Slippery slope: Whereby one asserts that if a small event were to happen then it would
lead to a larger chain of absurd negative events which may be largely unrelated
- Supressed evidence: When an argument is stated and the relevant damaging evidence
is withheld either deliberately or negligently
- Ad misericordiam: Making an appeal to pity rather than reason
- Distortion: Distorting the argument’s position and attacking the distortion to prove a
point

Briefing a Case

A case brief is a condensed, concise outline-type summary of a case. It is a practical tool

which helps one in breaking down a court opinion into key elements and presents the essence
of the judicial opinion. This however, is different from a precis. Always prepare the brief
after reading the entire case.

Format (one page max): -

1. Case title
2. Court name
3. Coram judges
4. Statement of facts (name of parties in specific terms, what the dispute is over,
procedurally specific facts such as the plaintiff’s claim etc.)
5. Procedural history (what the lower court held, appeals, what the matter is now etc.)
6. Issues (basic legal question?)
7. Holding (court’s answer to the question, dissenting opinion with vote count)
8. Majority opinion (Rule used to determine the case, ratio decidendi, application and
reasoning, how the principle applies to the case and given the rule applicable, who
wins the case? In other words, IRAC)
9. Concurring opinion with reasons, why judges write separately from the majority and
points of difference
10. Dissenting opinion with reasons, mention why judges write separately if that is the
case and how it differs from the majority
 11. Additional remarks if any, and if required

Judicial Law Making

Judicial activism refers to rulings passed by judges based on their own opinion, rather than
what the law says. For example, in the Case of the Speluncean Explorers, Justice Keen
accuses Justice Foster of judicial activism.

In a modern welfare state, judicial activism has now become common in courts of law and
many have tried to justify it on the grounds of democracy. Those who support judicial
activism say that their actions are in exercise of judicial review. However, judicial activism
runs contrary to the principles of separation of powers and parliamentary sovereignty.

Judicial review is a type of court proceeding wherein judges evaluate the relevance and
constitutionality of a law made earlier by either the courts through precedent or by
legislatures. This empowers judges to strike down any statute which is inconsistent with the
constitution.

The Bill of Rights for example, strengthens judicial review. If any statute is inconsistent with
these rights then judges can render it unconstitutional through judicial review.

Earlier, judicial review occurred only on procedural grounds when the body wasn’t
competent enough to make the law. Now, judicial review takes place on substantive grounds
too, given that the law is inconsistent with the constitution. This prevents legislatures from
making draconian laws.
There is however a political element in judicial review. In the United Kingdom, a law cannot
be overturned completely in most cases by courts through the doctrine of parliamentary
sovereignty. The law is sent back to the Parliament for changes if there is some
inconsistency.

Alexander Hamilton once said that the “Judiciary is the least powerful branch of government
as it has no power over either the sword or the purse.”

Judicial populism refers to rulings by judges based on popular sentiments. It is argued that
judicial activism is better than judicial populism as the former is based on ‘moral’ grounds.
Justice Handy from the Speluncean Explorers case was using judicial populism.

Locus standi refers to the right by which one can bring a legal action in a court or appear
before it. However, if the matter affects the public at large, someone representing public
interest should also have the right to take up the matter in court.

Executive Law Making

The issue of separation of powers comes into play whenever law making comes into play.
This was first advocated by John Locke in Second Treatise on Government, but he did not
identify the organs of legislature, executive and judiciary as such. These were first promoted
by Montesquieu in his book The Spirit of the Laws (De l’esprit des lois) in order to prevent
any organ from coming up with draconian laws. He believed that if all these powers were
vested in one organ or person, it would give rise to a tyrant. To prevent a despotic state, it is
essential to separate powers.

Appointing partisan judges started in the United States after FDR’s New Deal, particularly
after the controversy surrounding Lochner v New York.

With the growth of the free market, there has been the growth of a so called regulatory state,
which functions on the principle that “regulation should be preferred over prohibition.” For
example, casinos should be regulated by the government, instead of banning them. For all of
this, privatisation is key. Effective regulatory mechanisms should be established to maintain
standards, most commonly done in healthcare and education by medical councils and
education boards.
The legislature makes delegate legislations having the following features: -
1. Must have a broad policy framework which it would delegate to appropriate
authorities
2. These authorities will hence break these broad guidelines into more precise and
clearer rules
3. The source of the validity of these rules comes from their parent legislation
4. Primary statute is questioned when there is excessive delegation
5. Subordinate legislation is questioned if it is ultra vires
The legislature hence takes over the essential functions and outsources the ancillary functions
to the appropriate authority. Examples of essential functions include basic rules, penalties etc.
whereas ancillary functions include rules as to how the job needs to be carried out. However,
the ancillary functions cannot be carried out in a manner repugnant to the parent legislation.
The essential functions have two elements: determine ‘legislative policy’ and formulate a
binding code of conduct.

Conditional legislation is complete in itself, here the executive has the power to decide where
and when it should be enforced. The same authority also has the power to decide where and
when to revoke it. In some cases, most notably social security; when the conditional
legislation is withdrawn, the claim for natural justice strengthens. When disputes regarding
these legislations arise in courts, opinions of stakeholders who are not parties to the case are
also given consideration.

Presumption of constitutionality: First, presume the legislation is constitutional. When

questioned, two interpretations come into play. The first interpretation renders the statute
unconstitutional, whereas the second one states that the legislation is constitutional. While
arguing and deciding the case, the second interpretation is preferred. In the case of delegate
legislations, if the parent legislation is assumed to be constitutional but the subordinate
legislation is found to be ultra vires, the parent legislation is also scrapped.

CASE BRIEFS-

1. Wilkinson v. Downton
I. Material Facts-

a) False representation
that the information the plaintiff received from the defendant was false and with an
intent to deceive
b) Nature of information- calculated to cause harm
it basically means that any reasonable and non-indifferent person could suffer a nervous
shock upon receiving such information
c) Nervous shock caused by false representation and the nature of information
d) No propensity to usually suffer nervous shock-
She didn't suffer any condition that made her frequently prone to nervous shocks and hence
the shock in question is purely attributable to the misinformation
Principle- When information of a nature that can be calculated to cause harm WITH AN
INTENT TO DECIEVE on delivery causes injury, the deceiver can be held liable

2. K.M Nanavati v. State of Maharashtra-

Hon'ble Judges:
Subbarao, K. Das, S.K., Dayal Raghubar

Decided On: 24.11.1961

Citation: AIR1962SC605

Brief facts of the case

The accused, Nanavati, at the time of the alleged murder, was second in command of the
Indian Naval Ship. He married Sylvia in 1949 and had three children.

Since the time of marriage, the couple were living at different places. Finally, they shifted to
Bombay.

In the same city the deceased Ahuja was doing business in automobiles and in the year 1956,
Agniks, who were common friends of Nanavatis and Ahujas, introduced Ahuja and his sister
to Nanavatis. Ahuja was unmarried and was about 34 years of age

Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving
his wife and children in Bombay.

Gradually, friendship developed between Ahuja and Sylvia, which culminated in illicit
intimacy between them.

On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja.

Enraged at the conduct of Ahuja, he drove his wife, two of his children and a neighbor’s child
in his car to a cinema, dropped them there and promised to come and pick them up at 6 P.M.
when the show ended

Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver and six
cartridges on a false pretext, On receiving the revolver and six cartridges, and put it inside a
brown envelope. Then he drove his car to Ahuja’s office, and not finding him there, he drove
to Ahuja’s flat, range the door bell, and, when it was opened by a servant, walked to Ahuja’s
bed-room, went into the bed-room and shut the door behind him.

The accused saw the deceased inside the bed-room, called him a filthy swine and asked him
whether he would marry Sylvia and look after the children. The deceased retorted, “Am I to
marry every woman I sleep with?” The accused became enraged, put the envelope containing
the revolver on a cabinet nearby, and threatened to thrash the deceased.

The deceased made a sudden move to grasp at the envelope, when the accused whipped out
his revolver and told him to get back. A struggle ensued between the two and during that
struggle two shots went off accidentally and hit Ahuja resulting in his death. After the
shooting the accused went back to his car and drove it to the police station where he
surrendered himself.

Thereafter, the accused surrendered himself to the police. He was put under arrest and in due
course he was committed to the Sessions for facing a charge under s. 302 of the Indian Penal
code.

The trail court convicted under S.304 A of IPC and in appeal the high court convert it into
S.302 of IPC.

So the accuse made an appeal before the SC and at the same time he made an application to
governor under Art.161.

Judgement
The deceased seduced the wife of the accused. She had confessed to him of her illicit
intimacy with the deceased. It was natural that the accused was enraged at the conduct of the
deceased and had, therefore, sufficient motive to do away with the deceased. He deliberately
secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered his
bed-room unceremoniously with a loaded revolver in hand and in about a few seconds
thereafter came out with the revolver in has hand. The deceased was found dead in his bath-
room with bullet injuries on his body. It is not disputed that the bullets that caused injuries to
Ahuja emanated from the revolver that was in the hand of the accused. After the shooting, till
his trial in the Sessions Court, he did not tell anybody that he shot the deceased by accident.
Indeed, he confessed his guilt to the chowkidar Puransingh and practically admitted the same
to his colleague Samuel. His description of the struggle in the bathroom is highly artificial
and is devoid of all necessary particulars. The injuries found on the body of the deceased are
consistent with the intentional shooting and the main injuries are wholly inconsistent with
accidental shooting when the victim and the assailant were in close grips. The other
circumstances brought out in the evidence also establish that there could not have been any
fight or struggle between the accused and the deceased.

The court held that the conduct of the accused clearly shows that the murder was a deliberate
and calculated one and the facts of the case do not attract the provisions of Exceptions 1 of
Sec 300 of IPC as the accused also failed to bring the case under General Exception of IPC
by adducing evidence. In the result, the conviction of the accused under section 302 of IPC
and sentenced him of imprisonment for life.

Conclusion
From this we can say the literal rule has been applied the court and just read the plain text of
the constitution which clearly used by the SC in this case. Only on the failure of literal rule
the other rules of interpretation can be used. But the law is very clear and so there is no point
of applying any other rule. The decision of the Supreme Court is perfect according to me in
this Case. There is no issue that 2 remedy cannot be granted for one cause and same thing is
laid down here.

(1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the
same class of society as the accused, placed in the situation in which the accused was placed
would be so provoked as to lose his self-control. (2) In India, words and gestures may also,
under certain circumstances, cause grave and sudden provocation to an accused so as to bring
his act within the first Exception to s. 300 of the Indian Penal Code. (3) The mental
background created by the previous act of the victim may be taken into consideration in
ascertaining whether the subsequent act caused grave and sudden provocation for committing
the offence. (4) The fatal blow should be clearly traced to the influence of passion arising
from that provocation and not after the passion had cooled down by lapse of time, or
otherwise giving room and scope for premeditation and calculation

jury in nanawati case

The jury in the Greater Bombay Sessions Court had only task: to pronounce a person as
'Guilty' or 'Not Guilty' under the charges. They could not indict any accused nor could punish
the accused. The jury in the Greater Bombay sessions court pronounced Nanavati as not
guilty under section 302under which Nanavati was charged, with an 8–1 verdict.
The prosecution argued that the jury had been misled by the presiding judge on four crucial
points:
1. The onus of proving that it was an accident and not premeditated murder was on
Nanavati.
2. Was Sylvia's confession grave provocation for Nanavati, or any specific incident in
Ahuja's bedroom or both?
3. The judge wrongly told the jury that the provocation can also come from a third
person.
4. The jury was not instructed that Nanavati's defence had to be proved, to the extent
that there is no reasonable doubt in the mind of a reasonable person.
The court accepted the arguments, dismissed the jury's verdict and the case was freshly heard
in the high [Link] was claimed that jury had been influenced by media and was open to
being misled, the Government of India abolished jury trials soon after in most cases except
for Parsis who still have Jury Trials for their Matrimonial Disputes.

Trial by jury-

For trial selected people from different backgrounds are brought to hear and decide on any
particular case. Judge has the limited rule to interpret the law and guide jury in application of
law. In India a judge could differ from the decision of the jury and in that case case was
referred to the High Court for decision. Jury members are generally given some training on
certain basics.

Twelve Angry Men/Ek Ruka Hua Faisla:

This is a great movie on the jury system. To tell a few inferences-
1. People bring their own prejudices in their decisions.
2. If one jury member differs from the others by giving an opinion of not-guilty, there are
more chances of verdict being not-guilty
3. When the decision effects others, people hardly care
4. Many jury members just do not want to differ from the opinion of the majority. They have
confirmation bias.
5. Putting everything into a new perspective may often change the verdict

Fallibility of jury system:

Jury trials have been widely studied by psychologists under the wider topic of decision
making and groupthink. A few conclusions from such studies-
1. Group members rationalize and any conflicting information is just not considered
important
2. They often have stereotype view of others especially if she does not belong to the same
class.
3. They have conformity pressure from other members of the group, They either would not
express themselves or will be silent-ed
4. Self-censorship: They think what they are thinking is not important otherwise it would
have been taken up by others.
5. If the information presented to jury is consistent with their stereotypes they are likely to
take decisions based on these stereotypes
6. They have availability bias that is what is readily available is presumed to be more
representative of the actual situation.
7. When jury members take sides early and publicly it is more difficult to compromise and
they will engage more in discussion than in evaluation of evidences.
8. They may use satisficing that is good enough decision making thus do not reach the best
verdict.

Jury people are common people:

The main reason for jury system is its being consisting of common people who can judge
based on the law. But jury people are common people and they reflect common perceptions.
It is said that courts are expected to be vanguard of ideal against the popular of the elected
government. For example an elected government may like to curtail some rights of the
minority (in all sense) but courts will not allow that for violation of fundamental rights. Jury
however, at least in this case, reflected the common men's perception. Here was this man
trying to save his family's honour, here was the man who instead of shunting his wife out,
was still thinking about her well being. How can a self-respected, honorable man ever tolerate
such filthy language against any woman leave aside his own wife. Honour killing is not for
nothing has found such prevalence in the sub-continent. Honour is more important than life.
And women's body is the ultimate fort for which battles will be fought. Not only Jury but
common people of India were also in accused's favour. Jury brought a verdict of not guilty. It
was manifest that this verdict was sentimental and not rational. Judges decided to differ.
Verdict of guilty was given by the High Court and confirmed by the Supreme Court.
Government however gave him pardon after sometime.

This case showed in very clear terms how jury can fail reasoning and rationality. But courts
are not expected to be sentimental. Government therefore decided to abolish the jury system.

3 Soni Babubhai V. State of Gujarat (1991) 1991 AIR 2173 SCR (3) 812

FACTS- The Judgment of the Court was delivered by VERMA, J. Petitioner's daughter
Chhaya Was married to Respondent Satish on 5. 12. 1984 and they started living together in
their marital home at Bagasara. On 13.8. 1986, Chhaya died at Bagasara. The petitioner and
his wife got some vague information about their daughter Chhaya and went to Bagasara, the
same day but were unable to meet or see their daughter who had died. The petitioner
suspected that their daughter's death was unnatural resulting from torture by her husband and
his relatives. The petitioner filed a criminal complaint against Respondent who are the
husband, his parents and sister.

" Legislation .cannot by itself normally solve deep-rooted social problems, One has to ap-
proach them in other ways too, but legislation is necessary and essential, so that it may give
that push and have that educative factor as well as the legal sanctions behind it which help
public opinion to be given a certain shape."

4 S.R. Batra and Anr. Vs. Smt. Taruna Batra

AIR2007SC1118
Right of Wife Over Shared Household Case
Hon'ble Judges/Coram: S.B. Sinha and Markandey Katju, JJ.
Subject: Family
Relevant Section: Indian Penal Code, 1860 - Section 498A

FACTS-
The facts of the case are that respondent Smt. Taruna Batra was married to Amit Batra, son
of the appellants, on 14.4.2000.
After the marriage respondent Taruna Batra started living with her husband Amit Batra in the
house of Amit Batra in the second floor. It is not disputed that the said house which is at B-
135, Ashok Vihar, Phase-I, Delhi belongs to the Mother and not to her son Amit Batra.
Amit Batra filed a divorce petition against his wife Taruna Batra
It is admitted that Smt. Taruna Batra had shifted to her parent's residence because of the
dispute with her husband. She alleged that later on when she tried to enter the house which is
at property No. B-135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and
hence she filed Suit for a mandatory injunction to enable her to enter the house.
Smt. Taruna Batra, along with her parents forcibly broke open the locks of the house at
Ashok Vihar belonging to the mother-in-law of Smt. Taruna Batra.
the appellants that their son Amit Batra, husband of the respondent, had shifted to his own
flat at Mohan Nagar, Ghaziabad before the above litigation between the parties had started.

ISSUES- whether the property in dispute can be called shared household of taruna batra?

JUDGEMENT- Counsel for the respondent Smt. Taruna Batra stated that the definition of
shared household includes a household where the person aggrieved lives or at any stage had
lived in a domestic relationship. He contended that since admittedly the respondent had lived
in the property in question in the past, hence the said property is her shared household
But the court said,
If the aforesaid submission is accepted, then it will mean that wherever the husband and wife
lived together in the past that property becomes a shared household. It is quite possible that
the husband and wife may have lived together in dozens of places e.g. with the husband's
father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters,
nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent
is accepted, all these houses of the husband's relatives will be shared households and the wife
can well insist in living in the all these houses of her husband's relatives merely because she
had stayed with her husband for some time in those houses in the past. Such a view would
lead to chaos and would be absurd.
It is well settled that any interpretation which leads to absurdity should not be accepted.
in our opinion the wife is only entitled to claim a right to residence in a shared household,
and a 'shared household' would only mean the house belonging to or taken on rent by the
husband, or the house which belongs to the joint family of which the husband is a member.
The property in question in the present case neither belongs to Amit Batra nor was it taken on
rent by him nor is it a joint family property of which the husband Amit Batra is a member, it
is the exclusive property of mother of Amit Batra. Hence it cannot be called a 'shared
household'.

[Link] vs Bar Council Of India & Anr on 15 March, 1999

Supreme Court of India
Bench: [Link], [Link]

FACTS-
the Bar Council of Maharashtra & Goa and the Bar Council of India respectively raise a
common question for our consideration, namely, whether the Bar Council of India Training
Rules, 1995 as amended by the Resolution of the Bar Council of India in its meeting dated
19th July, 1998 relating to training to entrants of legal profession are within the competence
of the Bar Council of India or are ultra vires its rule making powers under the Advocates Act,
1961) and in the alternative whether these Rules are unreasonable and arbitrary and hence
violative of Article 14 of the Constitution of India.

ISSUES- Whether the impugned rules are ultra vires the rule making power of the Bar
Council of India

JUDGEMENT-
there is no power with the Bar Council of India to frame the impugned rules. That Section 7
of the Act lays down the statutory functions of the Bar Council of India. The provisions
thereof do not entitle the Bar Council of India to frame such impugned rules prescribing a
pre-condition before enrolment of an applicant as an advocate under the Act by requiring him
to undergo pre-enrolment training and apprenticeship as laid down under the impugned rules.
It was also submitted that Section 24 sub-section (3)(d) of the Act also was not available to
the Bar Council of India to frame such Rules. As a sequel, it was submitted that rule making
power of the Bar Council of India as laid down by Section 49 could not be pressed in service
by it in support of the impugned rules.
even assuming that the impugned rules fall within the rule making power of the Bar Council
of India, the Rules framed are so obnoxious, arbitrary, unreasonable and unworkable that they
violate the fundamental right of the petitioners under Article 14 of the Constitution of India in
any case.

DELEGATED LEGISLATION-
Delegated legislation (sometimes referred as secondary legislation or subordinate legislation
or subsidiary legislation) is a process by which the executive authority is given powers by
primary legislation to make laws in order to implement and administer the requirements of
that primary legislation. Such law is the law made by a person or body other than the
legislature but with the legislature’s authority.

Legislation by any statutory authority or local or other body other than the Legislature but
under the authority of the competent legislature is called Delegated legislation. It is
legislation made by a person or body other than Parliament. Parliament thereby, through
primary legislation, enables others to make law and rules through a process of delegated
legislation.

The process of delegated legislation enables the Government to make a law without having to
wait for a new Act of Parliament to be passed. Further, delegated legislation empowers the
authority to modify or alter sanctions under a given statute or make technical changes relating
to law. Delegated legislation plays a very important role in the process of making of law as
there is more delegated legislation each year than there are Acts of Parliament. In addition,
delegated legislation has the same legal standing as the Act of Parliament from which it was
created.

advantages-
Delegated Legislation reduces the burden of already overburdened Legislature by enabling
the executive to make or alter the law under the authority of Legislature. Thus, this helps the
Legislature to concentrate on more important matters and frame policies regarding it.

It allows the law to be made by those who have the required knowledge and experience. For
instance,
a local authority can be permitted to enact laws with respect to their locality taking into
account the
local needs instead of making law across the board which may not suit their particular area.

The process of delegated legislation also plays a significant role in an emergency situation
since there is no need to wait for particular Act to be passed through Parliament to resolve the
particular situation.

Finally, delegated legislation often covers those situations which have not been anticipated by
the Parliament during the time of enacting legislation, which makes it flexible and very useful
to law-making. Delegated legislation is, therefore, able to meet the changing needs of society
and also situations which Parliament had not anticipated when they enacted the Act of
Parliament.

disadvantages-
It is argued that delegated legislation enables authorities other than Legislation to make and
amend laws thus resulting in overlapping of functions.

It against the spirit of democracy as too much-delegated legislation is made by unelected

people.

Delegated legislation subject to less Parliamentary scrutiny than primary legislation.

Parliament, therefore, has a lack of control over delegated legislation, and this can lead to
inconsistencies in laws. Delegated legislation, therefore, has the potential to be used in ways
which Parliament had not anticipated when it conferred the power through the Act of
Parliament.

Delegated legislation generally suffers from a lack of publicity. Since the law made by a
statutory authority not notified to the public. On the other hand, the laws of the Parliament are
widely publicised. The reason behind the lack of publicity is the large extent of legislation
that is being delegated. There has also been concern expressed that too much law is made
through delegated legislation.

Bengal immunity co. v State of Bihar

AIR 1955 SC 661
The bench consisted of:
S.R. DAS, V. BOSE, N.H. BHAGWATI, B. JAGANNADHADAS, T.L.V. AIYYAR, .P.
SINHA, S.J. IMAM.

Within the context of law, the mischief rule is a rule of statutory interpretation that attempts
to determine the legislator’s intention. Originating from a 16th century case in the United
Kingdom, its main aim is to determine the “mischief and defect” that the statute in question
has set out to remedy, and what ruling would effectively implement this remedy. When
material words are capable of bearing two or more constructions the most firmly established
rule for construction of such words “of all statutes in general” is the rule laid down in
Heydons case also known as mischief rule. This rule is also known as purposive
construction. The rules lay down that the court should adopt the construction which shall
suppress the mischief and advance the remedy.
In the Indian context, the rule was best explained in the case of Bengal immunity co. v State
of Bihar. The appellant company is an incorporated company carrying on the business of
manufacturing and selling various sera, vaccines, biological products and medicines. Its
registered head office is at Calcutta and its laboratory and factory are at Baranagar in the
district of 24 – Perganas in West Bengal. It is registered as a dealer under the Bengal
Finance (Sales Tax) Act and its registered number is S.L. 683A. Its products have extensive
sales throughout the Union of India and abroad. The goods are dispatched from Calcutta by
rail, steamer or air against orders accepted by the appellant company in Calcutta. The
appellant company has neither any agent or manager in Bihar nor any office, godown or
laboratory in that State. On the 24th October, 1951 the Assistant Superintendent of
Commercial Taxes, Bihar wrote a letter to the appellant company which concluded as follows
:-
“Necessary action may therefore be taken to get your firm registered under the Bihar Sales
Tax Act. Steps may kindly be taken to deposit Bihar Sales Tax dues in any Bihar Treasury at
an early date under intimation to this Department”.
The principal question is whether the tax threatened to be levied on the sales made by the
appellant company and implemented by delivery in the circumstances and manner mentioned
in its petition is leviable by the State of Bihar. This was done by construing article 286 whose
interpretation came into question and the meaning granted to it in the case of The State of
Bombay v. The United Motors (India) Ltd6 was overruled. It raises a question of
construction of article 286of the Constitution. It was decided that Bihar Sales Tax Act,
1947 in so far as it purports to tax sales or purchases that take place in the course of inter-
State trade or commerce, is unconstitutional, illegal and void.
The Act imposes tax on subjects divisible in their nature but does not exclude in express
terms subjects exempted by the Constitution. In such a situation the Act need not be declared
wholly ultra vires and void. Until Parliament by law provides otherwise, the State of Bihar do
forbear and abstain from imposing sales tax on out-of-state dealers in respect of sales or
purchases that have taken place in the course of inter-State trade or commerce even though
the goods have been delivered as a direct result of such sales or purchases for consumption in
Bihar. The State must pay the costs of the appellant in this Court and in the court below.
Bhagwati, J. had agreed to the above interpretation.

VISHAKA V. STATE OF RAJASTHAN

AIR 1997 SC 3011
Bench Of Judges: CJI, Sujata V. Manohar, B. N. Kirpal

Facts-
# Bhanwari Devi who was a social activist/worker in one of the Rajasthan’s village.
# She worked under a social development program at rural level which was about to stop
child marriage in a village and this social program was administered/ initiated by the
Rajasthan’s state government
# Bhanwari Devi en-devoured to stop the marriage of the Ramkaran Gujjars (thakurs)
daughter, who was merely less than one year old i.e. she was an infant only.
# As a part of her duty, Bhanwari Devi tried to terminate the marriage of her infant daughter.
# Even of her vain-full efforts to stop the marriage, it happened, but Bhanwari devi was not
excused or pardoned for her’s this fault.
# She was exposed to or put forward to social punishment or boycott.
# September 1992, she was been gang raped by Ramkaran Gujjar and his five friends in front
of her husband.
# The male doctor at normal primary health center declined to survey her and the doctor at
Jaipur only made confirmation of her age without any recommendation of her being raped in
her medical report.
# At police station too she was been continually taunted by the women countable for the
whole of the midnight.
# In past midnight she was been asked by the policeman to leave her lehnga as the evidence
of that incident and go back to her village.
# After that, she was only left with the bloodstained dhoti of her husband to wrap her body, as
a result of which they had to spend there whole night in that police station.
# The Trail Court made the discharge of the accused people for not being guilty.

Issue
# Whether, the enactment of guidelines mandatory for the repudment of sexual harassment of
women at workplace.

Judgement-
The court observed that the fundamental rights under Article 14[2], 19[3](1)(g) and 21[4]of
Constitution of India that, every profession, trade or occupation should provide safe working
environment to the employees. It hampered the right to life and the right to live a dignified
life. The basic requirement was that there should be the availability of safe working
environment at workplace.
The Supreme Court held that, women have fundamental right towards the freedom of sexual
harassment at workplace. It also put forward various important guidelines for the employees
to follow them and avoid sexual harassment of women at workplace. The court also
suggested to have proper techniques for the implementation of cases where there is sexual
harassment at workplace. The main aim/objective of the Supreme Court was to ensure gender
equality among people and also to ensure that there should be no discrimination towards
women at there workplace.

After this case, the Supreme Court made the term Sexual harassment well defined,
accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or
misbehavior, or any sexual desire towards women, sexual favor will come under the ambit of
sexual harassment.

Conclusion
Sexual Harassment of women at workplace happens at a very frequent rate in India. If any
strict action will not be taken towards this crime, it will directly hamper the working ration of
the women in India and on other hand it will hamper the economic situation of India.
Government should make strict laws regarding the aversion of sexual harassment at
workplace, because it should realize that, women also constitute the working population of
our country. It should be abolished to prevent the dignity and the respect of the women.
Various new approaches and skills shall be implemented by the institutions, organisations to
prevent there women employees from such a social evil. The main objective behind the
stabilization of this right is to promote gender equality at workplace without any kind of
discrimination and discernment among the workers of an organisation.

GOLAKNATH V. STATE OF PUNJAB

(a) Parliament cannot amend Part III of the Constitution of India so as to "take away or
abridge" the fundamental rights; (b) all amendments made prior to February 27, 1967 and
affecting fundamental rights other than the "right to property" have full validity; (c) the effect
of the first, fourth and seventh amendments on the "right to property", though made prior to
February 27, 1967 remains valid and operative as part of the law of India; (d) the seventh
amendment to Article 31-A(2) is similarly valid and operative; (e) the seventeenth
amendment expanding the list of statutes in the Ninth Schedule is similarly valid and
operative; and (f) the impugned land reform legislation of Punjab and Mysore (Karnataka) is
wholly valid.

ZEE TELEFILMS V UNION OF INDIA

(1)The Board is not created by any statute and is only registered under the Societies
Registration Act 1860 and that it is an autonomous body, administration of which is not
controlled by any other authority including Union of India. He further submitted that it also
does not take any financial assistance from the Government nor is it subjected to any
financial control by the Government or its accounts are subject to the scrutiny of the
Government. It is his submission that though in the field of Cricket it enjoys a monopoly
status the same is not conferred on the Board by any statute or by any order of the
Government. It enjoys that monopoly status only by virtue of its first mover advantage and its
continuance as the solitary player in the field of cricket control and that is why article 12
cannot apply and cannot be a state under article 12.
A perusal of the Article 12 shows that the definition of State in the said Article includes the
Government of India, Parliament of India, Government of the State, Legislatures of the
States, local authorities as also "other authorities". It is the argument of the Board that it does
not come under the term "other authorities", hence is not a State for the purpose of Article 12.
While the petitioner contends to the contrary on the ground that the various activities of the
Board are in the nature of public duties. The learned counsel appearing for the petitioners,
however, contended that there are certain facets of the activities of the Board which really did
not come up for consideration in any one of the earlier cases including in Pradeep Kumar
Biswas case (supra) and those facts if considered would clearly go on to show that the Board
is an instrumentality of the State. In support of this argument, he contended that in the present
day context cricket has become a profession and that the cricketers have a fundamental right
under Article 19 (1) (g) to pursue their professional career as cricketers. It was also submitted
that the Board controls the said rights of a citizen by its rules and regulations and since such a
regulation can be done only by the State the Board of necessity must be regarded as an
instrumentality of the State.

RYLANDS V FLETCHER
Under the rule in Rylands v. Fletcher, a person who allows a dangerous element on their land
which, if it escapes and damages a neighbor, is liable on a strict liability basis - it is not
necessary to prove negligence on the part of the landowner from which has escaped the
dangerous substance.

MC MEHTA V UNION OF INDIA

The principle of absolute was established
.

IC GOLAKNATH V. STATE OF PUNJAB

• In [Link] Nath v. State of Punjab, it was observed: “The Constitution brings into
existence different constitutional entities, namely, the Union, the States and the Union
Territories. It creates three major instruments of power, namely, the Legislature, the
Executive and the Judiciary. It demarcates their jurisdiction minutely and expects
them to exercise their respective powers without overstepping their limits. They
should function within the spheres allotted to [Link] we study the constitutional
provisions carefully, it is clear that the doctrine of Separation of Powers has not been
accepted in India in its strict sense. In India, not only there is functional overlapping
but there is personnel overlapping also.
The Supreme Court has power to declare void the laws passed by the legislature and the
actions taken by the executive if they violate any provision of the Constitution or the law
passed by the legislature in case of executive actions. The executive can affect the
functioning of the judiciary by making appointments to the office of Chief Justice and other
judges. One can go on listing such examples yet the list would not be exhaustive.