INTRODUCTION

12.
INTRODUCTION TO LEGAL SYSTEM

Introduction to the Constitution of India

The Constitution as the Primary Source of Law
Supremacy of the Constitution
• The Constitution of India is the primary source of law.
• All central, state, and local laws must be made in accordance with the Constitution.
• No law can be inconsistent with the Constitution.
• The Constitution cannot be overridden by any authority in India.
Features of the Constitution
• Lays down the framework of:
o Powers and functions of government institutions
o Procedures of governance
• Provides:
o Fundamental Rights
o Fundamental Duties
o Directive Principles of State Policy
• Declares India as a:
o Sovereign
o Socialist
o Secular
o Democratic Republic
• Ensures justice, liberty, equality, and fraternity to citizens.
Preamble WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVEREIGNSOCIALIST SECULAR DEMOCRATIC REPUBLIC and to
secure to all its citizens.
➢ JUSTICE, Social, economic and political.
➢ LIBERTY of thought, expression, belief, faith and worship.
➢ EQUALITY of status and of opportunity; and to promote among them all.
➢ FRATERNITY assuring the dignity of the individual and the unity and
integrity of the Nation.
IN OUR CONSTITUENT ASSEMBLY this 26th day of November, 1949, do
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.

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Purpose of the The preamble to the constitution is a key to open the minds of the makers and
Preamble shows the general purpose for which they made the several provisions in the
constitution. Preamble serves the following purposes:
1. It discloses the source of the constitution.
2. It lays down the date of the commencement of the constitution.
3. It set out the rights and freedoms which the people of India wished to secure
for themselves. 4. It declares the nature of the government
Kesavananda The Supreme Court has held that preamble is part of the constitution.
Bharti vs. State of Preamble is of extreme importance and the constitution should be read and
Kerala interpreted in the light of grand and noble vision expressed in the preamble.
However, the preamble is neither a source of power to legislature nor creates
a prohibition upon the powers of legislature. It is not enforceable in courts of
law.

Fundamental Rights ( Part III) – Article 12 to 35

14 Equality before law.
“The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India”.
Exceptions: President & Governor (State)
15 Prohibition of Discrimination on Certain Grounds
The state shall not discriminate against any citizen on grounds only of Religion, Race, Caste,
Sex, Place of birth or Any of them.
Exceptions: Women and Children, socially and educationally backward classes of citizens or
Scheduled
16 Equality of Opportunity in matters of Public Employment
There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
Exceptions: Residents of State, Scheduled Castes, Scheduled Tribes, Religious Institution.
17 Abolition of Untouchability
“Untouchability" is abolished and its practice in any form is forbidden. It shall be an offence
punishable in accordance with law.
However, it refers to the social disabilities imposed on certain class of person by reason
of their birth in certain caste. However, it does not cover social boycott of a few
individuals.
18 Abolition of titles
1) No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
19 Protection of certain rights regarding Freedom of Speech, etc
(a) Freedom of speech and expression.
(b) Freedom of Assembly.
(c) Freedom to from Association.

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(d) Freedom of Movement.
(e) Freedom to reside and to settle.
(f) Freedom of Profession, occupation, trade or business.
Exceptions: National Security, Friendly relations with foreign states, Public order, Decency
and Morality, Contempt of Court, Defamation, Incitement to an offence, Sovereignty

Meaning: 19 (1) (a)

➢ In Prabhu Dutt vs. Union of India: Supreme Court held that right to know news and information about
the functioning of the Govt., is included in the freedom of Press.
➢ In Union of India vs. Association for Democratic Reforms: Supreme Court held that people have right
to know about the candidate before voting. Thus, the law preventing the Election Commission from
asking for a candidate’s wealth, Assets, liabilities education and other such information is invalid.
➢ In Tata Press Ltd. vs. M.T.N.L. the Supreme Court held that commercial speech (Advertisement) is a
part of freedom of speech and expression as per Article 19(1) (a).
➢ In Union of India vs. Naveen Jindal, the Court held that “Flying National Flag” is fundamental Right
under Article 19(1) (a)
➢ Freedom of Silence – Right not to speak
➢ In Bijoy Emmanuel vs. State of Kerala: Freedom not to sing the national anthem, but not to disrespect it.
Students belonging to the Apostle’s creed Christians did not sing the national anthem as their religion
prohibits glorification of anything else other than their God.

20 Protection in respect of Conviction for Offences

* Ex-post facto Law: No person shall be convicted of any offence except for violation of a law in
force at the time of the commission of the act charged as an offence.
* Double Jeopardy: No person shall be prosecuted AND punished for the same offence more
than once.
* Self-Incrimination; No person accused of any offence shall be compelled to be a witness against
himself . It extends to both oral and documentary evidence.
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.”
Right to life includes within its ambit the right to live with human dignity.
Right to The Supreme Court held that the right to life defines not only physical existence but the “quality
life of life.” This right is an inclusive right including the following:
includes ➢ Right to Travel abroad. (Satwant Singh v. Assistant Passport officer)
➢ Right to livelihood. ([Link] v. J.M.A Industries)
➢ Right to Shelter. (Chameli Singh v. State of U.P.)
➢ Right to Privacy. ([Link] Gopal v. State of T.N.)
➢ In PUCL Vs. Union of India, the S.C. held that telephone tapping is a serious invasion of an
individual’s right to Privacy which is part of the right to life and personal liberty.
➢ Right to Health & Medical Assistance.
➢ Protection of Ecology and Environmental Pollution
➢ Right to education under Art. 21A

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➢ Prisoner’s Right: The Court held that if the Prisoner died due to beating by Police Officer,
his family is entitled to compensation.
➢ Right to free Legal Aid
➢ Right to speedy Trial
➢ Right Against Handcuffing
➢ Right against Delayed Execution
➢ Right to food
➢ Right to Marriage. (Lata Singh v. State of U.P.)
➢ Right to Reputation
➢ Right to Education-21A Article 21A declares that state shall provide free and compulsory
education to all children of the age of six to fourteen years in such a manner as the state may
decide. Thus, this provision makes only elementary education a fundamental right and not
higher or professional education.
21A Right to Education
The state shall provide free and compulsory education to all children of the age of 6 to 14
years in such a manner as the state may decide. Thus, this provision makes only elementary
education a fundamental right and not higher or professional education.
23 Prohibition of Traffic in Human Beings and Forced Labour
It prohibits traffic in human beings and other similar forms of forced labour. This right is
available to both citizens and noncitizens. It protects the individual not only against state but
also against the private person.
Exceptions: State may impose compulsory service for public purposes, which are: military
service or social service.
24 Prohibition of Employment of Children in Factories etc.
Article 24 prohibits the employment of children below the age of 14 years in any factory, mine
or other hazardous activities. But it does not prohibit their employment in any harmless
innocent work.
25 Freedom of Conscience and Free Profession, Practice and Propagation of Religion
-that all persons are equally entitled to freedom of conscience and the right to freely profess,
practice and propagate religion. The implications of these are as follows:  Freedom of
conscience  Right to profess  Right to propagate  Right to practice
-Article 25 covers not only religious belief but also religious practices. This right is
available to all person citizen as well as noncitizen
26 Freedom to Manage Religious Affairs: every religious denomination or any of its section shall
have the following right:-
 to establish and maintain institutions for religious and charitable purposes;
 to manage its own affairs in matters of religion.
 to own and acquire movable and immovable property; and
 to administer such property in accordance with law.
27 Freedom as to Payment of Taxes for Promotion of any particular Religion lays down that no
person shall be compelled to pay any taxes for the promotion or maintenance of any particular
religion or religious denomination. In other words, the state should not spend the public
money collected by way of tax for the promotion or maintenance of any particular religion.
This provision prohibits only levy of tax and not a fees.

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28 Freedom as to Attendance at Religious Worship in certain Educational Institutions
provides that no religious instruction shall be provided in any educational institution wholly
maintained out of state funds. However, this provision shall not apply to an educational
institution administered by the state but established under any endowment or trust requiring
imparting of religious institution in such institution.
29 Protection of Interests of Minorities
says any section of the citizens residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve the same. No citizen shall be
denied admission into any educational institution maintained by the State or receiving aid out of
State funds on grounds only of religion, race, caste, language or any of them.
30 Right of Minorities to establish and administer Educational Institutions
1. All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice
1A. In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause.
2. The state shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a
minority, whether based on religion or language
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
3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
4. The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.

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Sources of Law
In some of the legal systems, court decisions are binding as law. On the basis of the above discussion,
three major sources of law can be identified in any modern society are as follows:
➢ Custom
➢ Judicial precedent
➢ Legislation.

(a) Custom
What is custom ? Custom can simply be explained as those long-established practices or
unwritten rules which have acquired binding or obligatory character.
➢ In ancient societies, custom was considered as one of the most important
sources of law. With the passage of time and the advent of modern
civilization, the importance of custom as a source of law diminished and
other sources such as judicial precedents and legislation gained importance.
Tests for customs (1) Antiquity: In order to be legally valid customs should have been in
to be recognized existence for a long time, even beyond human memory.
as valid sources of (2) Continuous: A custom to be valid should have been in continuous
law sources of law practice. It must have been enjoyed without any kind of interruption.
(3) Reasonableness: It a custom is likely to cause more inconvenience and
mischief than convenience , such a custom will not be valid.
(4) Morality: A custom which is irmmoral or opposed to public policy cannot
be a valid custom.
Kinds of Customs: ➢ General Customs: These types of customs prevail throughout the territory
of the State.
➢ Local Customs: Local customs are applicable to a part of the State, or a
particular region of the country.
➢ Conventional Customs: Conventional customs are binding on the parties
to an agreement. When two or more persons enter into an agreement
related to a trade, it is presumed in law that they make the contract in
accordance with established convention or usage of that trade. All customs
cannot be accepted as sources of law, nor can all customs be recognized
and enforced by the courts. The jurists and courts have laid down some
essential tests for customs to be recognized as valid sources of law

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(B) Judicial Precedent
Meaning of (1) It refers to previously decided judgments of the superior courts, such as
Judicial the High Courts and the Supreme Court, which judges are bound to follow.
Precedent ➢ (2) The judges decide those matters on the basis of the legislation and
prevailing custom but while doing so, they also play a creative role by
interpreting the law. By this exercise, they lay down new principles and
rules which are generally binding on lower courts within a legal system.
Supreme court ➢ Supreme Court became the supreme judicial authority and a streamlined
(SC) system of courts was established.
➢ Supreme Court is binding on all courts in India but not bound by its own
decisions
High court ➢ Binding on all courts within its own jurisdiction.
➢ Only persuasive value for courts outside its own jurisdiction.
➢ In case of conflict with decision of same court and bench of equal strength,
the matter is referred to a higher bench.
Lower Courts ➢ Bound to follow decisions of higher courts in its own state, in preference
to High Courts of other states
Judicial decisions ➢ Ratio decidendi: ‘Ratio decidendi’ refers to the binding part of a
can be divided judgment. ‘Ratio decidendi’ literally means reasons for the decision. It is
into following considered as the general principle which is deduced by the courts from
two parts: the facts of a particular case. It becomes generally binding on the lower
courts in future cases involving similar questions of law.
➢ Obiter dicta: An ‘obiter dictum’ refers to parts of judicial decisions which
are general observations of the judge and do not have any binding authority.
However, obiter of a higher judiciary is given due consideration by lower
courts and has persuasive value. Having considered the various aspects of
the precedent i.e. ratio and obiter, it is clear that the system of precedent is
based on the hierarchy of courts.

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(C) Legislation
Meaning of ➢ The term ‘legislation’ is derived from the Latin word legis which means
Legislation ‘law’ and latum which means “to make” or “set”.
➢ Therefore, the word ‘legislation’ means the ‘making of law’.
➢ In the strict sense it means laws enacted by the sovereign or any other person
or institution authorised by him.
Kinds of ➢ Primary Legislation: When the laws are directly enacted by the sovereign,
legislation it is considered as supreme legislation.
➢ Subordinate Legislation: Subordinate legislation is a legislation which is
made by any authority which is subordinate to the supreme or sovereign
authority.
Types of ➢ Local Laws: In India, local bodies like Panchayats and Municipal
subordinate Corporations have been recognized by the Constitution through the 73rd
Legislation and 74th Constitutional amendments.
➢ Laws made by the Executive: Laws are supposed to be enacted by the
sovereign and the sovereignty may be vested in one authority or it may be
distributed among the various organs of the State.
Is Delegated (1) In welfare and modern states, the amount of legislation has increased
Legislation manifold and it is not possible for legislative bodies to go through all the details
considered as a of law.
necessary evil ? (2) It deals with only a fundamental part of the legislation and wide given
to the executive to fill the gaps. Delegated legislation is resorted to, on account
of reasons like paucity of time, technicalities of law and emergencies.
➢ (3) Therefore, the need for delegation is necessary and is sought to be
justified on the ground of flexibility, adaptability and speed.
Organs of the ➢ Legislature
State and Their • Entrusted with the primary function of law-making.
Functions • Enacts laws that govern the State.
• In modern governance, it frames only the fundamental principles of
legislation.
➢ Executive
• Responsible for implementing and enforcing laws enacted by the
legislature.
• Exercises law-making power when such power is delegated by the
legislature.
• Fills in the details and gaps left in the parent legislation.
➢ Judiciary
• Acts as an independent organ of the State.
• Interprets laws and ensures their proper application.

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Legislatives Processes in India
Law and Governance in India
 Every country is governed by a system of rules and laws.
 Laws maintain order in society and regulate the behaviour of individuals, organizations, and the
Government.
 Matters such as citizenship, voting age, and governance are determined through laws.
 Law serves purposes such as:
• Maintaining public order
• Resolving disputes
• Ensuring safety
• Enforcing rights of citizens
 Laws are binding on all persons, institutions, and the Government.
Policy ➢ Government of India consists of various ministries handling different
Formulation sectors.
➢ Ministries propose major policy decisions of national importance.
➢ Policy proposals are aligned with the objectives of the elected government.
Preliminary Study ➢ Before introducing a bill in Parliament, detailed studies and surveys are
conducted.
➢ These studies assess:
• Social costs and benefits
• Financial implications
• Key challenges before and after enforcement of the law

Stages in the Making of a Law

➢ Pre-Drafting Stage
Formulation of ➢ Concerned ministry formulates the proposal.
Legislative ➢ Consultations are held with stakeholders from financial and administrative
Proposal perspectives.
➢ Proposal includes:
➢ Necessity of legislation
➢ Incidental and related matters
Pre-Legislative ➢ Adopted on 10th January 2014 by a committee headed by the Cabinet
Consultation Secretary.
Policy (2014) ➢ Proposed legislation with explanatory note must be:
➢ Published online or through other means
➢ Kept in the public domain for at least 30 days
➢ If legislation affects a specific group, it must be published in a manner
accessible to them.

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➢ Stakeholder feedback is considered while drafting the bill.
Role of Ministry ➢ Concerned ministry refers the proposal to the Ministry of Law and Justice.
of Law and Justice ➢ Examination is limited to:
➢ Legal practicability
➢ Constitutional validity
➢ Necessity and desirability in light of existing laws
➢ Merits of the proposal are not examined at this stage.
Preparation of ➢ Concerned ministry sends all relevant documents with an office
Draft Bill memorandum to the Ministry of Law & Justice.
➢ Legislative Department drafts the bill after clearance from the Department
of Legal Affairs.
Cabinet Approval ➢ Draft bill is scrutinized by the concerned ministry.
➢ A note is sent to the Cabinet Secretary to place the bill before the Cabinet.
➢ Cabinet considers and approves the draft.
Post-Cabinet ➢ If Cabinet suggests changes:
Changes • Concerned ministry reviews them
• Sends comments to the Ministry of Law & Justice for modification
➢ If no changes are suggested:
• Statement of Objects and Reasons is prepared
• Signed by the Ministry of Law & Justice

Parliamentary ➢ Details of bills proposed for a session are sent to the Ministry of
Procedure: Parliamentary Affairs.
Legislative ➢ Information must be provided at least one month before the session begins.
Programme
Introduction of ➢ Money Bills:
Bills ➢ Introduced first in the House of the People (Lok Sabha)
➢ As per Articles 109, 110(1), and 117(1) of the Constitution
➢ Other Bills:
➢ House of introduction decided in consultation with the Ministry of
Parliamentary Affairs

Article 107: Provisions as to introduction and passing of Bills

1. Subject to the provisions of articles 109 and 117 with respect to Money Bills and other financial
Bills, a Bill may originate in either House of Parliament.

2. Subject to the provisions of articles 108 and 109, a Bill shall not be deemed to have been passed by
the Houses of Parliament unless it has been agreed to by both Houses, either without amendment or
with such amendments only as are agreed to by both Houses.

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3. A Bill pending in Parliament shall not lapse by reason of the prorogation of the Houses.

4. A Bill pending in the Council of States which has not been passed by the House of the People shall
not lapse on a dissolution of the House of the People.

5. A Bill which is pending in the House of the People, or which having been passed by the House of
the People is pending in the Council of States, shall, subject to the provisions of article 108, lapse on a
dissolution of the House of the People.

Article 108: Joint sitting of both Houses in certain cases

1. Circumstances for Joint Sitting
After a Bill is passed by one House and sent to the other House, the President may summon a joint
sitting if:
• (a) The other House rejects the Bill; or
• (b) The two Houses finally disagree on amendments to be made in the Bill; or
• (c) More than six months pass from the date the Bill is received by the other House without it
being passed.
Exception:
• This provision does not apply to Money Bills.
Condition:
• The President may act only if the Bill has not lapsed due to dissolution of the House of the
People.
2. Calculation of Six-Month Period
• While calculating the six-month period under clause (1)(c):
o Any period during which the concerned House is prorogued or adjourned for more
than four consecutive days shall not be counted.
3. Effect of Presidential Notification
• Once the President notifies his intention to summon a joint sitting:
o Neither House shall proceed further with the Bill.
o The President may, at any time after such notification, summon the Houses for a joint
sitting.
o Upon summons, the Houses shall meet accordingly.
4. Passing of Bill at Joint Sitting
Majority Required
• The Bill must be passed by a majority of the total number of members of both Houses present
and voting.
• Once passed, the Bill is deemed to have been passed by both Houses for constitutional
purposes.

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Amendments at Joint Sitting
• (a) If the Bill was passed by one House but not returned with amendments by the other House:
o Only amendments necessitated by delay in passage may be proposed.
• (b) If the Bill was passed by one House and returned with amendments by the other:
o Only:
▪ Amendments necessitated by delay, and
▪ Amendments related to matters on which the Houses disagreed, may be
proposed.
• The decision of the presiding officer regarding admissibility of amendments is final.
5. Effect of Dissolution of House of the People
• A joint sitting may be held and the Bill passed:
o Even if the House of the People is dissolved,
o Provided the President had already notified his intention to summon a joint sitting
before such dissolution.
Article 109: Special procedure in respect of Money Bills
1. A Money Bill shall not be introduced in the Council of States.
2. After a Money Bill has been passed by the House of the People it shall be transmitted to the
Council of States for its recommendations and the Council of States shall within a period of
fourteen days from the date of its receipt of the Bill return the Bill to the House of the People with
its recommendations and the House of the People may thereupon either accept or reject all or any
of the recommendations of the Council of States.
3. If the House of the People accepts any of the recommendations of the Council of States, the
Money Bill shall be deemed to have been passed by both Houses with the amendments
recommended by the Council of States and accepted by the House of the People.
4. If the House of the People does not accept any of the recommendations of the Council of States,
the Money Bill shall be deemed to have been passed by both Houses in the form in which it was
passed by the House of the People without any of the amendments recommended by the Council
of States.
5. If a Money Bill passed by the House of the People and transmitted to the Council of States for its
recommendations is not returned to the House of the People within the said period of fourteen
days, it shall be deemed to have been passed by both Houses at the expiration of the said period
in the form in which it was passed by the House of the People.

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Article 111: Assent to Bills
When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and
the President shall declare either that he assents to the Bill, or that he withholds assent therefrom:

Provided that the President may, as soon as possible after the presentation to him of a Bill for assent,
return the Bill if it is not a Money Bill to the Houses with a message requesting that they will
reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability
of introducing any such amendments as he may recommend in his message, and when a Bill is so
returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the
Houses with or without amendment and presented to the President for assent, the President shall not
withhold assent therefrom.

After the assent of the President, the Ministry of Law & Justice publishes the Act in Gazette of India
Extraordinary, forwards the copies to the all-state government for publication in their official gazette,
get copies of the act in printed form for sale to the General Public.

SUMMARY
Procedure for a Money Bill
(1) Money Bills can be introduced only in Lok Sabha.
(2) Money bills passed by the Lok Sabha are sent to the Rajya Sabha
(3) The Speaker of the Lok Sabha certifies the bill as a Money Bill before sending it to the Rajya
Sabha.
(4) The Rajya Sabha may not amend money bills but can recommend amendments.
(5) A money bill must be returned to the Lok Sabha within 14 days, or the bill is deemed to have
passed both houses. (6) When a Money Bill is returned to the Lok Sabha with the recommended
amendments of the Rajya Sabha, it is open to the Lok Sabha to accept or reject any or all of the
recommendations.
(7) A money bill is deemed to have passed both houses with any recommended amendments the
Lok Sabha chooses to accept, and without any that it chooses to decline.
(8) A Financial Bill is not a Money Bill unless it fulfils the requirements of Article 110.
(9)The Speaker of the Lok Sabha certifies if a Financial Bill is a Money Bill or not.
(10) A Money Bill can only be introduced in parliament with prior permission of the President
of India.
(11) Money bill cannot be returned by the President to the parliament for its reconsideration, as
it is presented in the Lok Sabha with his permission.

Bill

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Money Bill (Article 109 , 110 ) Other Bill (Article 107 , 108 )
(1) Speaker of Lok Sabha Decides . (1)Ministry of Parliamentary Affairs will decide
(2) First presented in Lok Sabha for Approval, that the
then presented in Rajya Sabha for Approval. Other Bill' will be first presented in which
(3) Rajya Sabha has to return it to Lok Sabha House.
within 14 (2)It has to be passed in Both Houses.
(4) Lok Sabha may Accept or Reject (3) In case of conflict between Both Houses
recommendations of Rajya Sabha. President may call Joint Session of Both Houses.
(5) It is deemed to be passed in Both Houses. (4) It will then be approved by Majority
(6) Now it goes to President of India. Members present and voting .
(7) President must assent because it was
introduced in Lok Sabha with President's
Approval

Alternative Dispute Resolution (ADR)

Why do we need Arbitration/Conciliation?
There are several problems with the Judiciary System:-
1. Filing a legal suit is very Costly, for instance, Lawyers' Fees.
2. Court case is time consuming because Courts are already busy with thousands of pending cases.
3. Judges/Lawyers have little knowledge of the modern commercial transactions like e-commerce.
4. Courts follow a very rigid protocol i.e., Civil Procedure Code, 1908 regarding Time, Place &
Language.
[Link] is no confidentiality. All the facts related to the court case become public information.
6. Court case increases feeling of animosity between parties and reduces any chance of settlement.

Arbitration
Arbitration ➢ "Arbitration Agreement" means an agreement by the parties to submit to
Agreement arbitration all or certain disputes which have arisen or which may arise
[Section 7] between them in respect of a defined legal relationship, whether contractual or
not.
Power to refer ➢ A Court, before which an action is brought in a matter which is the subject of
Parties to an arbitration agreement shall (if a party to the arbitration agreement, so
Arbitration applies to the Court), refer the parties to arbitration unless it finds that prima
[Section 8] facie no valid arbitration agreement exists.
Number of ➢ The parties are free to determine the number of arbitrators, provided that such
Arbitrators number shall NOT be an even number.
[Section 10

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Appointment of (1) In an arbitration with 3 arbitrators, each party shall appoint 1 arbitrator, and
Arbitrators the two appointed arbitrators shall appoint the third arbitrator who shall act as
[Section 11] the presiding (2) arbitrator.
(2) If the appointment procedure in sub-section (3) applies and:
(a) a party fails to appoint an arbitrator within 30 days from the receipt of a
request to do so from the other party; or
➢ (b) the two appointed arbitrators fail to agree on the third arbitrator within
30 days from the date of their appointment, then appointment shall be made,
upon request of a party, by the Supreme Court or, as the case may be, the
High Court or any person or institution designated by such Court .

Conciliation
(1) Conciliation is an alternative dispute resolution process whereby the parties to a dispute use a
conciliator, what meets with the parties separately in order to resolve their differences
(2) The conciliator is usually a trained and qualified neutral person who facilitates negotiations
between disputing parties.
(3) Usually 1 conciliator is appointed to resolve the dispute between the parties. The parties can
appoint the sole conciliator by mutual consent. There is no bar to the appointment of 2 or more
conciliators but maximum 3 conciliators. In conciliation proceedings with 3 conciliators, each
party appoints one conciliator. The third conciliator is appointed by the parties by mutual
consent.
(4) The conciliator does not give any award or order. If no consensus could be arrived at between
the parties and the conciliation proceedings fail, the parties can then resort to arbitration.

Mediation
Meaning Dispute settlement through mediation is a voluntary and relatively informal
process of dispute resolution.
Role of The mediator only acts as a facilitator. The mediator makes no decisions or
Mediator awards.
Mediation In the mediation process, each side meets with an experienced neutral mediator.
Process The session begins with each side describing the problem and the resolution
they desire which is ameliorated by conducting separate and joint meeting
culminating finally in an agreement of both parties .

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Lok Adalats
(1) It is a judicial institution and a dispute settlement agency developed by the people
themselves for social justice based on settlement or compromise reached through systematic
negotiations.
(2) Lok-Adalats accept even cases pending in the regular courts within their jurisdiction.
(3) Section 89 of the Civil Procedure Code also provides for referring disputes to Lok Adalat
wherein provisions of the Legal Services Authorities Act, 1987 gets applied.

Legal Terminology and Maxim

Latin Term / Legal Term Meaning / Explanation
Ab Initio From the beginning.
Actionable per se The very act is punishable, and no proof of damage is required.
Actio personalis moritur A personal right of action dies with the person; if he dies, the right to
cum persona sue is gone.
Actori incumbit onus The burden of proof is on the plaintiff.
probandi
Actus me invito factus non An act done by me against my will is not my act (Section 94 IPC).
est mens actus
Actus non facit reum nisi An act does not make one guilty unless accompanied by a guilty
mens sit rea mind.
Actus reus Guilty act.
Actus Reus Non Facit Reum Conviction requires proof of criminal act and intent.
Nisi Mens Sit Rea
Ad hoc For the particular end or case at hand.
Alibi At another place, elsewhere.
Amicus Curiae A friend of court appointed to assist the court.
Ante Litem Motam Before suit or controversy is instituted.
Assentio mentium Meeting of minds; mutual assent.
Audi alteram partem No man shall be condemned unheard.
Bona fide In good faith.
Bona vacantia Goods without an owner.
Boni judicis est ampliare Duty of a good judge to enlarge jurisdiction.
jurisdictionem
Caveat A caution registered in court.
Caveat actor Let the doer beware.
Caveat emptor Let the buyer beware.
Caveat venditor Let the seller beware.

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Certiorari Writ quashing orders of inferior courts.
Communis hostis omnium Common enemy of all.
Corpus Body.
Corpus delicti Facts constituting a crime; concrete evidence like a corpse.
Damnum sine injuria Damage without injury.
De facto In fact.
De jure By law.
De minimis About minimal things.
De Minimis Non Curat Lex Law does not concern trifles.
De novo To make something anew.
Dictum Statement not necessary for the decision.
Doli capax Capable of forming criminal intent.
Doli incapax Incapable of forming criminal intent.
Detinue Tort of wrongfully holding goods.
Donatio mortis causa Gift in expectation of death.
Estoppel Prevented from denying.
Ex gratia As a favour.
Ex officio By virtue of office.
Ex parte Proceedings in absence of other party.
Ex post facto After the fact.
Factum probans Relevant fact.
Fraus est celare fraudem Concealment of fraud is fraud.
Functus officio No longer having authority.
Furiosi nulla voluntas est Mentally ill persons have no free will.
Furiosis furore suo puiner A madman punished by his madness.
Habeas corpus Writ to produce body before judge.
Ignorantia facti excusat, Ignorance of fact excuses, law does not.
ignorantia juris non excusat
Ignorantia juris non excusat Ignorance of law is no excuse.
Injuria sine damnum Injury without damage.
Ipso facto By the mere fact.
In promptu In readiness.
In lieu of Instead of.
In personam Proceeding against a specific person.
Innuendo Defamatory words with double meaning.
In status quo In present state.
Inter alia Among other things.
Inter vivos Between living persons.
Jus cogens Compelling law.
Jus in personam Right against a specific person.

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Jus in rem Right against the world.
Jus naturale Natural law.
Jus necessitatis Right arising out of necessity.
Jus non scriptum Customary law.
Jus scriptum Written law.
Jus Law or right.
Justitia nemini neganda est Justice must not be denied to anyone.
Jus soli Right of soil.
Jus sanguinis Right of blood or descent.
Lex non a rege est violanda Law must not be violated even by king.
Locus standi Right to appear before court.
Mala fide In bad faith.
Mandamus Writ compelling public duty.
Mens rea Guilty mind.
Misnomer Wrong or inaccurate name.
Modus operandi Mode of operation.
Modus vivendi Way of living.
Mutatis mutandis With necessary changes.
Nemo bis punitur pro No one punished twice for same offence.
eodem delicto
Nemo debet bis vexari pro No double punishment.
una et eadem causa
Nemo judex in sua causa No one judge in own cause.
Nemo moriturus Dying person presumed truthful.
praesumitur mentire
Nemo potest esse tenens et One cannot be landlord and tenant.
dominus
Nolle prosequi Abandonment of prosecution.
Novation Replacement of old contract.
Nullum crimen sine lege No crime without law.
Non sequitur Illogical conclusion.
Obiter dictum Non-binding judicial observation.
Onus probandi Burden of proof.
Pacta sunt servanda Agreements must be kept.
Pari passu At equal footing.
Per curiam By the court.
Per se By itself.
Persona non grata Unacceptable person.
Prima facie At first sight.
Alimony Maintenance after divorce.

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Quantum meruit What one has earned.
Qui facit per alium facit per Acts through another acts himself.
se
Quid pro quo Something for something.
Qui sentit commodum Benefit carries burden.
sentire debet et onus
Quo warranto Writ questioning authority.
Necessitas non habet legem Necessity knows no law.
Ratio decidendi Principle underlying judgment.
Respondeat superior Master liable for servant.
Res ipsa loquitur Thing speaks for itself.
Res judicata Matter already decided.
Res judicata pro veritate Judicial decision accepted as correct.
accipitur
Rex non potest peccare King can do no wrong.
Salus populi est suprema Welfare of people is supreme law.
lex
Status quo Existing state of affairs.
Sine die Indefinitely.
Sine qua non Essential condition.
Suo motu On its own motion.
Uberrima fides Utmost good faith.
Ubi jus ibi remedium Where there is right, there is remedy.
Veto Power to reject legislation.
Vice versa Reverse position.
Vis major Act of God.
Volenti non fit injuria No injury by consent.
Vox populi Voice of the people.
Waiver Voluntary relinquishment of right.

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