JIGL Revision Notes V1 (CS Somya Kataria) 2

JIGL
Revision notes
Somya kataria (CS, MBA) (9131993373)

JIGL Revision Notes
UNIT 1: SOURCES OF LAW
◦ The nature and meaning of law has been described by various jurists. However, there is no
unanimity of opinion regarding the true nature and meaning of law. The reason for lack of
unanimity on the subject is that the subject has been viewed and dealt with by different
jurists so as to formulate a general theory of legal order at different times and from different
points of view.
◦ Various definitions of law can be classified in to following 5 classes:
◦ 1. Natural School
◦ Ulpine defined Law as “the art or science of what is equitable and good.”
◦ Cicero said that Law is “the highest reason implanted in nature.”

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◦ 2. Positivistic Definition of Law

◦ According to John Austin, “Law is the aggregate of rules set by man as politically superior, or sovereign, to men as
political subject.” OR law is the “command of the sovereign”. It obliges a certain course of conduct or imposes a duty
and is backed by a sanction. Thus, the command, duty and sanction are the 3 elements of law.
◦ 3. Historical Definition of Law Savigny’s theory of law can be summarized as follows:
◦ That law is a matter of unconscious and organic growth. Therefore, law is found and not made.
◦ Law is not universal in its nature. Like language, it varies with people and age.
◦ Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness.
◦ Legislation is the last stage of law making, and, therefore, the lawyer or the jurist is more important than the
legislator.
◦ 4. Sociological Definition of Law
◦ Ihering defines law as “the form of the guarantee of the conditions of life of society, assured by State’s power of
constraint”. There are 3 essentials of this definition –
◦ 1st In this definition law is treated as only one means of social control.
◦ 2nd Law is to serve social purpose.

◦ 3rd It is coercive in character.
◦ 5. Realist Definition of Law
◦ Realists define law in terms of judicial process.
◦ According to Holmes “Law is a statement of the circumstances in which public force will be brought to bear upon
through courts.”

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◦ MAIN FEATURES OF LAW:

◦ a) Law presupposes a state
◦ b) The state makes or authorises to make rules
◦ c) For the rules to be effective, there are sanctions behind them
◦ d) These rules are made to serve some purpose
◦ e) The purpose may be a social purpose, or any other purpose.
Laws are made effective:

I. By requiring damages to be paid for an injury due to disobedience
II. By requiring one, in some instances, to complete an obligation he has failed to perform
III. By preventing Disobedience
IV. By administering some form of punishment

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◦ SOURCES OF INDIAN LAW

◦ The modern Indian law as administered in courts is derived from various sources and these sources fall under the
following two heads:
A. Principle or Primary source
1. Customs or Customary Law

◦ Custom is the most ancient of all the sources of law and has held the most important place in the past, though its
importance is now diminishing with the growth of legislation and precedent.
◦ Classification of Customs
The customs may be divided into two classes:
 Customs without sanction which are non-obligatory and are observed due to the pressure of public opinion. These are
called as “positive morality”.
 Customs having sanction which are enforced by the State. It is with these customs that we are concerned here. These
may be divided into two classes:
I. Legal Customs: These customs operate as a binding rule of law. They have been recognised and enforced by the
courts and therefore, they have become a part of the law of land.
Legal customs are again of 2 kinds:
a. Local Customs
b. General Customs.
Somya Katariya (CS, MBA)

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I. Conventional Customs: These are also known as “usages”. These customs are binding due to an
agreement between the parties, and not due to any legal authority independently possessed by them.
Before a Court treats the conventional custom as incorporated in a contract, following conditions must be
satisfied: Steps in planning:
 must be shown that the convention is clearly established and it is fully known to the contracting parties.
There is no fixed period for which a convention must have been observed before it is recognised as binding.
 Convention cannot alter the general law of the land.
 It must be reasonable.
Requisites of a Valid Custom
i. Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient.

ii. Certainty: The custom must be certain and definite, and must not be vague and ambiguous.
iii. Reasonableness: A custom must be reasonable. It must be useful and convenient to the society.
iv. Compulsory Observance: A custom to be valid must have been continuously observed without any
interruption from times immemorial and it must have been regarded by those affected by it as an
obligatory or binding rule of conduct.
v. Conformity with Law and Public Morality: A custom must not be opposed to morality or public policy nor
must it conflict with statute law.
vi. Unanimity of Opinion: The custom must be general or universal If practice is left to individual choice, it
cannot be termed as custom.
vii. Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court
or otherwise.
viii. Consistency: There must be consistency among the customs. Custom must not come into conflict with the
other established customs.

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2. Judicial Decision or Precedents

◦ In general use, the term “precedent” means some set pattern guiding the future conduct. In the judicial field, it
means the guidance or authority of past decisions of the courts for future cases. Only such decisions which
laydown some new rule or principle are called judicial precedents.
◦ The rule that a court decision becomes a precedent to be followed in similar cases is known as doctrine of stare
decisis.
◦ Kinds of Precedents
I. Declaratory and Original Precedents: a declaratory precedent is one which is merely the application of an
already existing rule of law.
II. Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but which
they will take into consideration and to which they will attach great weight as it seems to them to deserve.
The decisions of one High Court are only persuasive precedents in the other High Courts.
III. Absolutely Authoritative Precedents: An authoritative precedent is one which judges must follow whether
they approve of it or not.
IV. Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though
ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances.

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◦ Doctrine of Stare Decisis
 The doctrine of stare decisis means “adhere to the decision and do not unsettle things which are established”.
 Under the stare decisis doctrine, a principle of law which has become settled by a series of decisions generally is binding on the
courts and should be followed in similar cases.
 In simple words, the principle means that like cases should be decided a like.
 This rule is based on public policy and expediency.
 Although generally the doctrine should be strictly adhered to by the courts, it is not universally applicable.
 The doctrine should not be regarded as a rigid and inevitabledoctrine which must be applied at the cost of justice.
◦ Ratio Decidendi
◦ The underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi.
◦ Ratio decidendi contains the following basic ingredients:
1. Findings or material facts, both direct and inferential
2. Statements of the principles of law applicable to the legal problems disclosed by the facts; and
3. A judgement (or judgements) based on the combined effect or 1& 2


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Obiter Dicta
 The literal meaning of this Latin expression is “said by the way”.
 he expression is used especially to denote those judicial utterances in the course of delivering a judgement which taken by
themselves, were not strictly necessary for the decision of the particular issue raised.
 These statements thus go beyond the requirement of a particular case and have the force of persuasive precedents only.
 The judges are not boundEnvironmental

to follow them although they can take advantage
Startegy of them. They some times help the cause of
Startegy formulation Startegy evaluation
the reform of law. scanning Implementation
3. Statutes or Legislation
• Legislation is that source of law which consists in the declaration or promulgation of legal rules by anauthority duly
empowered by the Constitution in that behalf.
•
• It is sometimes called Jus scriptum (written law) as contrasted with the customary law or jus non-scriptum (unwritten
law).
• Supreme Legislation is that which proceeds from the sovereign power in the State or which derives its power directly from
the Constitution. It cannot be replealed, annulled or controlled by any other legislative authority.
• Subordinate Legislation is that which proceeds from any authority other than the sovereign power. It is dependent for its
continued existence and validity on some superior authority.
• The Parliament of India possesses the power of supreme legislation. Legislative powers have been given to the judiciary,
as the superior courts are allowed to make rules for the regulation of their own procedure.
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4. Personal Law
Hindu Sources Shruti and Smriti
Matters governed by hindu law Hindus are governed by their personal law in all
in case of Hindus matters relating to of Hindus inheritance, succession,
marriage, adoption, co parcenary, partition of joint
family property, pious obligations of sons to pay their
father’s debts, guardianship, maintenance and
religious and charitable endowments.
Muslim Law Sources • The holy kuran

• Hadis
• Ijmas
• Kiyas commentaries on
• Digests and Mohammedan law
Matters governed by muslim law Mohammedans are governed by their personal law in
in case Mohammedans all matters relating to inheritance, wills, succession,
legacies, Mohammedans marriage, dowry, divorce,
gifts, wakfs, guardianship and pre emption.

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B Secondary source of Law
1. Justice, Equity and Good Conscience
The concept of “justice, equity and good conscience” was introduced by Impey’s Regulationsof 1781. In the absence of any
rule of a statutory law or custom or personal law, the Indian courts apply to the decision of a case what is known as “justice,
equity and good conscience”, which may mean the rules of English Law in so far as they are applicable to Indian society and
circumstances.
2. Sources of English Law
a) Common Law: The Common Law, in this context is the name given to those principles of law evolved by the judges in
making decisions on cases that are brought before them.
b) Law Merchant: Law Merchant means those customs and usages which are binding on traders in their dealings with each
other.
c) Principle of Equity: Equity is a body of rules, the primary source of which was neither custom nor written law, but the
imperative dictates of conscience and which had been set forth and developed in the Courts of Chancery.
d) Statute Law: “Statute law is that portion of law which is derived from the legislation or enactment of Parliament or the
subordinate and delegated legislative bodies.”

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 MERCANTILE LAW OR COMMERCIAL LAW

It is that branch of law which is applicable to or concerned with trade and commerce in connection with various mercantile or
business transactions. The most important feature of such a business transaction is the existence of a valid agreement, express or
implied, between the parties concerned.
The following are the main sources of Mercantile Law in India:

1. English Mercantile Law: The Indian Mercantile Law is mainly an adaptation of English Mercantile Law. However, certain
modifications wherever necessary, have been incorporated in it to provide for local customs and usages of trade and to suit
Indian conditions
2. Acts enacted by Indian Legislature or Statute Law: The Acts enacted by the Indian legislature from time to time which are
important for the study of Indian Mercantile Law include, (i) The Indian Contract Act, 1872,(ii) The Sale of Goods Act, 1930, (iii)
The Indian Partnership Act, 1932, (iv) The Negotiable Instruments Act, 1881, (v) The Arbitration and Conciliation Act, 1996, (vi)
The Insurance Act, 1938.
3. Judicial Decisions:
. Judges interpret and explain the statutes. Whenever the law is silent on a point, the judge has to decide the case according to
the principles of justice, equity and good conscience.
. The English legal system has developed a system of judicial precedent which requires the extraction of the legal principle from a
particular judicial decision and, given the fulfilment of certain conditions, ensures that judges apply the principle in subsequent
cases which are indistinguishable. The latter provision being termed “binding precedents”. Such decisions are called as precedents
and become an important source of law
4. Customs and Trade Usages: Many Indian statutes make specific provisions to the effect that the rules of law laid down in a
particular Act are subject to any special custom or usages of trade
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JURISPRUDENCE
The word Jurisprudence is derived from the word ‘juris’ meaning law and ‘prudence’ meaning knowledge.
Jurisprudence is the study of the science of law. The study of law in jurisprudence is not about any particular statute or a rule but of law in
general, its concepts, its principles and the philosophies underpinning it.
According to salmond, the term jurisprudence means the science where the word law includes all species of obligatory rules of human
action. He said that jurisprudence in this sense can be further divided into 3 categories
a. Civil
b. International
c. Natural
Legal theory
Legal theory is a field of intellectual enterprise within jurisprudence that involves the development and analysis of the foundations of law.
Positive legal theory seeks to explain what the law is and why it is that way, and how laws affect the world, whereas normative legal theories
tell us what the law ought to be.
John Austin’s command theory of law
Austin differentiated between ‘Law properly so called’ and ‘laws improperly so called’ and said that laws properly so called are general
commands but not all of it is given by men for men.
According to Austin law is the command of sovereign that is backed by sanction. Austin has propagated that law is a command which
imposes a duty and the failure to fulfill the duty is met with sanctions (punishment). Thus Law has three main features:
a. It is a command.
b. It is given by a sovereign authority.
c. It has a sanction behind it

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Roscoe pound Theory
The goal of this theory was to build such a structure of society where the satisfaction of maximum of wants was achieved with the minimum of friction and
waste. Such a society according to Roscoe Pound would be an ‘efficient’ society. Realisation of such a social structure would require balancing of competing
interests. For any legal order to be successful in structuring an efficient society, there has to be:
1. A recognition of certain interests- individual, public and social.
2. A definition of the limits within which such interest will be legally recognized and given effect to.
3. Securing of those interests within the limits as defined.
Roscoe pound’s classify interest in following 3 categories

1. Individual Interest
2. Public Interest
3. Social Interest
John William Salmond’s theory

According to Salmond law is the body of principles which are recognized and applied by the state in the administration of justice
His other definition said that law consists of a set of rules recognised andacted on in courts of justice.
Hans Kelson’s pure theory of Law

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

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◦ Kelsen described law as a “normative science’ as distinguished from natural sciences which are based on cause and effect, such as
law of gravitation. The laws of natural science are capable of being accurately described, determined and discovered whereas the
science of law is knowledge of what law ought to be.
◦ Jaremy Banthem’s theory of Law
Jeremy Bentham was the pioneer of analytical jurisprudence in Britain.
◦ According to him ‘a law’ may be defined as an assemblage of signs, declarative of volition, conceived or adopted by a sovereign in a
state,
◦ concerning the conduct to be observed in a certain case by a certain person ora class of persons, who in the
◦ case in question are or are supposed to be subject to his power. Thus, Bentham’s concept of law is an imperative one.
◦ Bentham said that every law may be considered in eight different respects:
◦ 1. Source.
◦ 2. Subjects.
◦ 3. Objects.
◦ 4. Extent.
◦ 5. Aspects.
◦ 6. Force.
◦ 7. Remedial appendage.
◦ 8. Expression.

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2. Constitution of India
 Introduction
• The Constitution of India came into force on January 26, 1950. It is acomprehensive document containing 395
Articles (divided into 22 Parts) and 12 Schedules. All public authorities – legislative, administrative and judicial
derive their powers directly or indirectly from it and the Constitution derives its authority from the people.
 Structure
• Constitution of India is basically federal but with certain unitary features.
• The political system introduced by our Constitution possesses all the aforesaidessentials of a federal polity as
follows:
a) In India, there are Governments at different levels, like Union and States.
b) Both Union and States have to follow the Constitutional provisions when they make laws.
c) Powers to make laws have been suitably distributed among them by way of various lists as per the
Seventh Schedule.
d) The Judiciary is independent with regard to judicial matters and judiciary can test the validity of law
independently. The Supreme Court decides the disputes between the Union and the States, or the
States inter se.
e) The Constitution is supreme and if it is to be amended, it is possible only by following the procedure
explained in Article 368 of the Constitution itself.

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Fundamental rights
The Constitution seeks to secure to the people “liberty of thought, expression, belief, faith and worship; equality of status and
of opportunity; and fraternity assuring the dignity of the individual”. With this object, the fundamental rights are envisaged in
Part III of the Constitution.
Part III of the Indian Constitution guarantees 6 categories of fundamental rights. These are:
a. Right to Equality – Articles 14 to 18;
b. Right to Freedom – Articles 19 to 22;
c. Right against Exploitation – Articles 23 and 24;
d. Right to Freedom of Religion – Articles 25 to 28;
e. Cultural and Educational Rights – Articles 29 and 30;
f. Right to Constitutional Remedies – Articles 32.
Note:
a) Articles 15, 16, 19 and 30 are guaranteed only to citizens.
b) Articles 14, 20, 21, 22, 23, 25, 27 and 28 are available to any personon the soil of India—citizen or foreigner.
c) The rights guaranteed by Articles 15, 17, 18, 20, 24 are absolute limitations upon the legislative power.
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Concept of State
With a few exceptions, all the fundamental rights are available against the State. Under Article 12, unless the context
otherwise requires, “the State” includes –
a. The Government and Parliament of India;
b. The Government and the Legislature of each of the States; and
c. All local or other authorities:
i. within the territory of India; or
ii. under the control of the Government of India.
Justifiability of Fundamental Rights

Article 13 gives teeth to the fundamental rights. It lays down the rules of interpretation in regard to laws inconsistent with or
in derogation of the Fundamental Rights.
Exsiting Laws: Article 13(1) relates to the laws already existing in force, i.e. laws which were in force before the
commencement of the Constitution (pre constitutional laws).
Future Laws: Article 13(2) relates to future laws, i.e., laws made after the commencement of the Constitution (post
constitutional laws). After the Constitution comes into force the State shall not make any law which takes away or abridges
the rights conferred by Part III and if such a law is made, itshall be void to the extent to which it curtails any such right.

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Doctrine of Severability
It is not the entire law which is affected by the provisions in Part III, but on the other hand, the law becomes invalid only to the extent to
which it is inconsistent with the Fundamental Rights. So only that part of the law will be declared invalid which is inconsistent, and the rest
of the law will stand. However, on this point a clarification has been made by the Courts that invalid part of the law shall be severed and
declared invalid if really it is severable, i.e., if after separating the invalid part the valid part is capable of giving effect to the legislature’s
intent, then only it will survive, other wise the Court shall declare the entire law as invalid. This is known as the rule of severability.
Doctrine of Eclipse
An existing law inconsistent with a fundamental right becomes in-operative from the date of the commencement of the Constitution, yet it
is not dead altogether. A law made before the Commencement of the Constitutionremains eclipsed or dormant to the extent it comes under
the shadow of the fundamental rights, i.e. is inconsistent with it, but the eclipsed or dormant parts become active and effective again if the
prohibition brought about by the fundamental rights is removed by the amendment of the Constitution. This is known as the doctrine of
eclipse.
Waiver
The doctrine of waiver of rights is based on the premise that a person is his best judge and that he has the liberty to waive the enjoyment of
such rights as are conferred on him by the State. However, the person must have the knowledge of his rights and that the waiver should be
voluntary.
Single Person Law

A law may be constitutional, even though it relates to a single individual, if that single individual is treated as a class by himself on some
peculiar circumstances.

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Right of Equality
Article 14: Equality before the law and equal protection of the laws “the State shall not deny to any person equality before the law or the
equalprotection of the laws within the territory of India”.
The expression ‘equality before the law’ is a declaration of equality of all persons within the territory of India, implying thereby the absence
of any special privilege in favour of any individual. Every person, whatever be his rankor position is subject to the jurisdiction of the ordinary
courts.
The second expression “the equal protection of the laws” directs that equal protection shall be secured to all persons within the territorial
jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination. Article 14 applies to all
persons and is not limited to citizens

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Legislative classification
A right conferred on persons that they shall not be denied equal protection of the laws does not mean the protection of the same laws for
all. To separate persons similarly situated from those who are not, legislative classification or distinction is made carefully between persons
who are and who are not similarly situated. Article 14 does not forbid classification or differentiation which rests upon reasonable grounds
of distinction.
Test of valid classification
Permissible classification must satisfy 2 conditions, namely;
i. the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together
from others leaving out or left out; AND
ii. Such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question
Article 15(2) lays down that no citizen shall be subjected to any disability, restriction or condition with regard to—
1. Access to shops, public restaurants, hotels and places of public entertainment; or
2. The use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partially out of State funds or dedicated
to the use of the general public.
Under Article 15(3) the State can make special provision for women and children. It is under this provision that courts have upheld the
validity of legislation or executive orders discriminating in favour of women (Union of India v. Prabhakaran).
Article 15(4) permits the State to make special provision for the advancement of—
i. Socially and educationally backward classes of citizens;
ii. Schedule caste and
iii. schedule tribes

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Article 16: Equality of opportunity in matters of public employment.

1. All citizens shall have equal opportunity in matters relating to employment or appointment of office under the State.
2. There shall be no discrimination against a citizen on the grounds of religion race caste, sex descent, place of birth or residence.
Exceptions:
 Parliament can make a law that in regard to a class or classes of employment or appointment to an office under the Government of a
State on a Union Territory, under any local or other authority within the State or Union Territory, residence within that State or Union
Territory prior to such employment or appointment shall be an essential qualification.
 A provision can be made for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of
the State is not adequately represented in the services under the State.
 A law shall not be invalid if it provides that the incumbent of an office in connection with the affair of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular
denomination.
Article 17: Abolition of untouchability
Article 17 says that “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of
“Untouchability” shall be an offence punishable in accordance with law.
Untouchability does not include an instigation to social boycott (Davarajiah v. Padamanna). Punishment for violation of Article 17 is to be
provided by Parliament under Article 35(a)(ii)

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Article 18: Abolition of titles

Article 18 is more a prohibition rather than a fundamental right. British Government used to confer titles upon persons who showed special
allegiance to them. Many persons were made Sir, Raj Bahadur, Rai Saheb, Knight, etc. These titles had the effect of creating a class of certain
persons which was regarded superior to others and thus had the effect of perpetuating inequality.
Rights Relating to Freedom
Articles 19-22 guarantee certain fundamental freedoms.
Article 19(1), of the Constitution, guarantees to the citizens of India six freedoms, namely;
a. Right to freedom of speech and expression
b. Freedom of assembly
c. Freedom of association
d. Freedom of movement
e. Freedom of residence
f. Right to acquire, hold and dispose of property — deleted by 44th Amendment in 1978.]
g. Freedom to trade and occupations
The Constitution under Articles 19(2) to 19(6) permits the imposition of restrictions on these freedoms subject to the following conditions:
1. The restriction can be imposed by law and not by a purely executive orderissued under a statute;
2. The restriction must be reasonable;
3. The restriction must be imposed for achieving one or more of the objects specified in the respective clauses of Article 19.
Protection in respect of conviction for offences Articles 20, 21 and 22 provide a system of protection, relevant to the criminal law. Article 20
guarantees to all persons — whether citizens or non-citizens - 3 rights namely—
i. protection against ex-post facto laws
ii. protection against double jeopardy
iii. protection against self-incrimination
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Protection of life and personal liberty

Article 21 confers on every person the fundamental right to life and personal liberty. It says that, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”
The right to life includes those things which make life meaningful. For example, the right of a couple to adopt a son is a constitutional right
guaranteed under Article 21 of the Constitution (Philips Alfred Malvin v. Y. J. Gonsalvis and others,). The right to life enshrined in Article 21
guarantees right to live with human dignity. Right to live in freedom from noise pollution is a fundamental right protected by Article 21 and
noise pollution beyond permissible limits is an inroad into that right.
Article 21A Right to education

This was introduced by the constitution (86th amendment) Act, 2002. According to this, the state shall provide free and compulsory
education to all children of the age of 6 to 14 years.
Right against illegal arrest and preventive detention
Article 22 lays down the last right to freedom which relates to protection against illegal arrest and preventive detention.
Article 22 does not apply uniformly to all persons and makes a distinction between:
a. Alien enemies,
b. Person arrested or detained under preventive detention law, and
c. Other persons.
Person arrested or detained other than under preventive detention law-

(1) A person who is arrested cannot be detained in custody unless he has beeninformed, as soon as he may be, of the grounds for such
arrest.
(2) The person arrested has right to consult an advocate of his choice.
(3) A person who is arrested and detained must be produced before the nearest magistrate within a period of 24 hours of such arrest,
excluding the time of journey. And such a person shall not be detained in custody beyond 24 hours without the authority of magistrate.
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Person arrested or detained under preventive detention law Preventive detention means detention of a person without trial. The object of
preventive detention is not to punish a person for having done something but to prevent him from doing it. No offence is proved nor any
charge formulated and yet a person is detained because he is likely to commit an actprohibited by law.
Right against exploitation (Article 23 & 24)

They provide for rights against exploitation of all citizens and non-citizens. Taking them one by one they guarantee certain rights by
imposing certain prohibitions not only against the State but also against private persons.
• Prohibition of traffic in human beings and forced labour
• Prohibition of employment of children
Right to freedom of religion

India does not accept any religion as state religion. It maintains absolute neutrality and impartiality towards all religion. The provision
relating to right of freedom of religion are preserved in articles 25 to 28 of the constitution of India. With Article 25 begins a group of
provisions ensuring equality of all religions thereby promoting secularism.
Article 25 gives to every person the:

• Freedom of conscience, and
• The right freely to profess, practice and propagate religion.
Article 26 provides following rights to every religious denomination;

1) Right to establish and maintain institutions of religious charitable purposes;
2) To manage its own affairs in matters of religion;
3) To own and acquire movable and immovable property and ;
4) To administer such property in Accordance with law.

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ARTICLE 27-
Any person shall not be compelled to pay any taxes, the proceed of which will be used to meet expenses for promotion of any particular
religion.
ARTICLE 28-
• An educational institute which is wholly maintained by state fund shall not give any religious institutions.
• Any person shall not be compelled in any educational institutions run by state fund without his consent or his guardians consent to –
1. To take part in religious institution given
2. To attend any religious worship conducted
CULTURAL AND EDUCATIONALRIGHT [Right of Minorities]
Minority
The word ‘minority’ has not been defined in the Constitution. The determination of minority should be based on the area of operation of a
particular piece of legislation. If it is a State law, the population of the State should be kept in mind and if it is a Central Law the population
of the whole of India should be taken into account.
The 2 article guarantee the following rights:
1) Protection of interests of Minorities Article 29 guarantees 2 rights:
i. Any section of the citizens residing in the territory of Indian or any part thereof having a distinct language, script or culture of its own
has the right of conserve the same. Thus, citizens from Tamil Nadu or Bengal has the right to conserve their language or culture if they
are living in Delhi, a Hindi speaking area and vice versa.
ii. No citizen can 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. This provision is general and applies to each citizen individually and is
not confined to a group of citizens. An exception is made to this right to the effect that if a special provision is made for the admission
of persons belonging to educationally or/and socially backward classes or scheduled castes or scheduled tribes it shall be valid.
2) Right of Minorities to establish and administer educational institutions Following rights are declared in Article 30:
i. All minorities, whether based on religion or on language, shall have the right to establish and administer educational institutions of
their choice. It may be noted here that this right is not limited only to linguistic minorities but it extends to religious minorities also.
Both of them have been given the freedom to establish and administereducational institutions of their own choice.
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ii. The State cannot, in granting aid to educational institutions, discriminate against any educational institution on the ground that itis under
the management of a minority, whether based on religion or language. It has been held that the State cannot impose conditions in granting
aid to such institutions.
AMENDABILITY OF FUNDAMENTALRIGHTS PARLIAMENT’S POWER TO AMEND THE CONSTITUTION (INCLUDING FUNDAMENTAL RIGHTS) IS
NOT ABSOLUTE AND THE BASIC STRUCTURE OF THE CONSTITUTION SHOULD BE MAINTAINED.
Directive Principle of State Policy

Meaning
Directive principle are the ideals which the union and state governments must keep in mind while formulating policies or pass law. The
articles included in part IV of the constitution (article 36 to 51) contain certain directives which are the guidelines for the future government
to lead the country.
Important directive principle of state

1. State to secure a social order for the promotion of welfare of the people
2. Principles and policies to be followed by state
 Equal right for men and women
 Equal pay for equal work for men and women.
 Distribution of ownership of material resources for common good.
 Prevention of concentration of wealth to the common detriment
 Ensure health of citizens at workplace.
 Protection of child and youth against exploitation.
3. Equal justice and free legal aid.
4. Organize village panchayats.
5. Right to work, education and public assistance in certain case.
6. Just and human condition of work

7. Living wages and securing standard of living to workers.
8. Participation of workers in management of industries.
9. Uniform civil code
10.Free and compulsory education for children
Fundamental Duties
a. To abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem.
b. To cherish and follow the nobel ideals which inspired our national struggle for freedom.
c. To uphold and protect the sovereignty, unity and integrity of India.
d. To defend the country and render national service when called upon to do so.
e. To Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic
and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
f. To value and preserve the rich heritage of our composite culture;
g. To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living
creatures;
h. To develop the scientific temper, humanism and the spirit of inquiry and reform;
Ordinance making power of the president and of the governor
1) Of the president
In Article 53 the Constitution lays down that the “executive power of the Union shall be vested in the President”. The President of
India shall, thus, be the head of the ‘executive power’ of the Union. The various powers that are included within the
comprehensive expression ‘executive power’ in a modern state have been classified under various heads as follows:
i. Administrative power, i.e., the execution of the laws and the administration of the departments of Government.
ii. Military power, i.e., the command of the armed forces and the conduct of war. I
iii. Legislative power, i.e., the summoning; prorogation, etc. of the legislature.
iv. Judicial power, i.e., granting of pardons, reprieves etc. to persons convicted of crime.
2) Of the governor
The ordinance making power is granted to governor to governor in case of state list u/a 213 the power is on same grounds as of ordinance
making power of president.
Legislature power
While exercising this power Governor must act with the aid and advise of the Council of Ministers. But in following cases the Governor
cannot promulgate any Ordinance without instructions from the President:
 If a Bill containing the same provisions would under this Constitution have required the previous section of the President.
 He would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President.
 An Act of the State legislature containing the same provisions would under this Constitution have been invalid under having been
reserved for the consideration of the President, it had received the assent of the President.
The Ordinance must be laid before the state legislature (when it re- assembles) and shall automatically cease to have effect at the expiration
of six weeks from the date of the reassembly unless disapproved earlier by that legislature.
Territorial jurisdiction 7
Parliament may make laws for the whole of India and the legislature of a state may make laws for the whole or any part of the state. Note -
parliament in some cases can make laws which are effective even outside India.
Subject matter jurisdiction On the basis of subject matter jurisdiction is divided on the following 3 basis:
• Union List - This list contains the subject matter in which parliament has power to legislate.
• State list - this list contains the subject-matter in which state legislature has power to legislate.
• Concurrent List - this list contains the subject matter in which both parliament and state legislature can legislate.
• Residuary list - With respect to all those matters which are not included in any of the 3 lists, parliament has the exclusive power to make
laws. It is called the residuary legislative power of parliament

Interpretation of the Legislative Lists
Plenary Powers: The first and foremost rule is that if legislative power is granted with respect to a subject and there are no limitations
imposed on the power, then it is to be given the widest scope that its words are capable of, without, rendering another item nugatory.
Harmonious Construction: Different entries in the different lists are to be interpreted in such a way that a conflict between them is avoided
and each of them is given effect. It must be accepted that the Constitution does not want to create conflict and make any entry nugatory.
Pith and Substance Rule: The rule of pith and substance means that where a law in reality and substance falls within an item on which the
legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a
matter outside the competence of legislature.
Colourable Legislation: Doctrine of colourable legislation states, ‘whatever legislature can’t do directly, it cant do indirectly.’ When a
legislature seeks to do something in an indirect manner what it cannot do directly, the court struck such law.
Freedom of Trade, Commerce and Intercourse
ARTICLE 301
Article 301 of the constitution lays down the trade, commerce and intercourse throughout the territory of India shall be free. Restrictions in
the form of taxes can be imposed. The freedom of trade and commerce guaranteed under article 301 applies throughout the territory of
India; it is not only applicable to inter-state but also to inter-state trade, commerce and intercourse. The intension is to make whole territory
of India as one for free flow trade and commerce.
ARTICLE 302
However, parliament can impose restriction on freedom of trade, commerce and intercourse in public interest.
ARTICLE 303
While imposing restrictions, the parliament should not discriminate between the state. Discrimination can only be done in case of scarcity of
goods.
ARTICLE 304
State legislature can impose taxes on goods which comes into their state from other states if those goods are subject to taxation in their respective states.
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ARTICLE 305
The laws which create state monopoly in any trade, etc. are valid irrespectiveof the fact that they directly impede or restrict the freedom of
trade and commerce.
Types of Writs
A brief description of the various types of writs is given below:
i. Habeas corpus
ii. Mandamus
iii. Prohibition
iv. Certiorari
v. Quo-warranto
HABEASCORPUS
The words ‘Habeas Corpus’ literally mean “to have the body’’. If a person is detained whether in prison or private custody without any
justification for detention then he himself or through his representative may seek relief under this writ. The Supreme Court or high court
will then issue this writ to produce the person who has been detained before a court and to release him if such detention is found illegal.
This writ is issued in order to protect individual liberties against state and other individuals.
MANDAMUS
Mandamus means ‘we command’. It is issued when a public official or a person holding a public office has failed to perform his/her public or
statutory duty. Mandamus can be issued against any public authority. But it cannot be issued against the president or the governor of a
state for the exercise of their duties and power.
PROHIBITION
A writ of prohibition is issued to an inferior court preventing it from assuming jurisdiction which is not legally vested in it. When a tribunal or
lower court acts without or in excess of jurisdiction writ of prohibition can be demanded. It is generally issued before the trial of the case or
during pendency of proceeding, but never after the order is made. While mandamus commands activity, prohibition commands inactivity, it
is available only against judicial or quasi-judicial authorities and is not available against a public officer.

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CERTIORARI
The writ of certiorari can be filed to high court or Supreme Court if a subordinate court
i. acts without or in excess of jurisdiction or
ii. acts in contravention of the rules of natural justice or
iii. Commits an error apparent on the face of the record.
Although the object of both the writs of prohibition and of certiorari is the same, prohibition is available at an earlier stage
whereas certiorari is available at a later stage when the order is made.
QUO-WARRANTO
The term ‘quo-warranto’ means ‘what is your authority’. If a public office is held by any one not qualified to hold it, it can be
challenged by any person. Under this writ, the person is ordered by the court to explain under what valid grounds he is
holding such a position. If it is found on investigation that he is not entitled to the office, the court may restrain him from
acting in the office and order to vacate the office.

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3. INTERPRETATION OF STATUTES
INTRODUCTION
• Interpretation is the process of establishing the true meaning of the words of the law.
• It is a well settled principle of law that as the statute is an edict of the Legislature, the conventional way of interpreting or construing a
statute is to seek the intention of legislature.
PRINCIPLES OFINTERPRETATION
It is only when the intention of the legislature as expressed in the statute is not clear, that the Court in interpreting it will have any need for
the rules of interpretation of statutes.
A. Primary Rules
1. The Primary Rule: Literal Construction According to this rule, the words, phrases and sentences of a statute are ordinarily to be
understood in their natural, ordinary or popular and grammatical meaning unless such a construction leads to an absurdity or the
content or object of the statute suggests a different meaning.
2. The Mischief Rule or Heydon’s Rule

• In Heydon’s Case, it was resolved “that for the sure and true interpretation of all statutes in four things are to be considered:
i. What was the Common Law before the making of the Act;
ii. What was the mischief and defect for which the Common Law did not provide; I
iii. What remedy the Parliament had resolved and appointed to curethe disease of the Commonwealth; and
iv. The true reason of the remedy.
• The rule directs that the Courts must adopt that construction which “shall suppress the mischief and advance the remedy”. But this does
not mean that a construction should be adopted which ignores the plain natural meaning of the words or disregard the context and the
collection in which they occur.
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3. Rule of Reasonable Construction i.e. Ut Res Magis Valeat Quam Pareat

• This is the golden rule of interpretation.
• According to this rule, the words of a statute must be construed utres magis valeat quam pareat, so as to give a sensible meaning to the
mand the intention of law maker should be given utmost importance,
• It is the duty of a Court in constructing a statute to give effect to the intention of the legislature.
4. Rule of Harmonious Construction

• A statute must be read as a whole effect should be given to every provision.
• Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other
parts of the statute.
• It is the duty of the Courts to avoid “a head on clash” between two sections of the same Act and, “whenever it is possible to do so, to
construct provisions which appear to conflict so that they harmonise”
5. Rule ofEjusdem Generis

• Ejusdem Generis, literally means “of the same kind or species”.
• In other words, the ejusdem generis rule is that, where there are general words following particular and specific words, the general
words must be confined to things of the same kind as those specified, unless there is a clear manifestation of a contrary purpose.
• For example – If a law refers to yatchs, ships, cruise, boat and other vehicles, “vehicles” would not include trucks, since the list was of
water-based transportation.
B. Other Rules of Interpretation

1. Expressio Unis Est Exclusio Alterius
• The rule means that express mention of one thing implies the exclusion of another.
• In other words, when something is mentioned expressly in a statute it should be presumed that the things not mentioned are excluded.

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2. Contemporanea Expositio Est Optima Et Fortissima in Lege

• The maxim means that a contemporaneous exposition is the best and strongest in law. Where the words used in a statute have
undergone alteration in meaning in course of time, the words will be construed to bear the same meaning as they had when the statute
was passed on the principle expressed in the maxim.
• In simple words, old statutes should be interpreted as they would have been at the date when they were passed and prior usage and
interpretation by those who have an interest or duty in enforcing the Act, and the legal profession of the time, are presumptive evidence
of their meaning when the meaning is doubtful.
3. Noscitur a Sociis
• The ‘Noscitur a Sociis’ i.e. “It is known by its associates”. In other words, meaning of a word should be known from its accompanying or
associating words.
• The rule states that where two or more words which have analogous meaning are coupled together, they are understood in their
cognate sense. It is only where the intention of the legislature in associating wider words with words of narrower significance, is
doubtful that the present rule of construction can be usefully applied. The same words bear the same meaning in the same statute.
• For example – The word ‘plant’ if used in ‘plant and trees’ should be interpreted as shrub, herbs, bushes etc. Whereas if used in ‘plant
and machinery’ it would mean some kind of equipment.
4. Strict and Liberal Construction

• What is meant by ‘strict construction’ is that “Acts, are not to be regarded as including anything which is not within their letter as well as
their spirit, which is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended”,
• ‘Liberal construction’ is meant that “everything is to be done in advancement of the remedy that can be done consistently with any
construction of the statute”. Generally, Labour and Welfare laws are given liberal interpretation as the primary focus of the acts are to
provide benefit.

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PRESUMPTIONS
Where the meaning of the statute is clear, there is no need for presumptions. But if the intention of the legislature is not
clear, there are number of presumptions.
These are:
a) that the words in a statute are used precisely and not loosely.
b) that vested rights, i.e., rights which a person possessed at the time the statute was passed, are not taken away without
express words, or necessary implication or without compensation.
c) that “mens rea”, i.e., guilty mind is required for a criminal act. There is a very strong presumption that a statute creating
a criminal offence does not intend to attach liability without a guilty intent.
d) that the state is not affected by a statute unless it is expressly mentioned as being so affected.
e) that a statute is not intended to be inconsistent with the principles of International Law. Although the judges cannot
declare a statute void as being repugnant to International Law, yet if two possible alternatives present themselves, the
judges will choose that which is not at variance with it.
f) that the legislature knows the state of the law.
INTERNAL AND EXTERNALRULES OF INTERPRETATION
A. Internal Aids in Interpretation

1. Title
 The long title of an Act is a part of the Act and is admissible as an aid to its construction. It sets out the general terms, the
purpose of the Act and it often precedes the preamble.
 The Short Title cannot be used for interpretation as short title implies only an abbreviation for purposes of reference.

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2. Preamble
 Where the enacting part is clear and unambiguous, the preamble can not be used but where the enacting part is ambiguous, the
preamble can be referred to for interpretation.
3. Heading and Title of a Chapter
4. Marginal Notes
 When reference to marginal note is relevant? The Supreme Court has held that the marginal note although may not be relevant for
rendition of decisions in all types of cases but where the main provision is sought to be interpreted differently, reference to marginal
note would be permissible in law
5. Interpretation Clauses
 Definition may be of following types: -
i. Exhaustive Definition – It is a restrictive definition which means there is nothing that can be included in the meaning beyond what has
been stated. The words ‘means’ and ‘means and includes’ indicates such definition.
ii. Inclusive Definition – Here, the definition of the word has the scope and ambit to go beyond what has been stated. The words
‘includes’, ‘to apply to and include’ and ‘so deemed to include’ indicates such definition.
iii. Exclusive Definition- When definition excludes certain things from its ambit, it is exclusive definition.
6. Proviso
 ‘Exception’ is intended to restrain the enacting clause to particular cases; ‘proviso’ is used to remove special cases from the general
enactment and provide for them specially; and ‘saving clause’ is used to preserve from destruction certain rights, remedies or privileges
already existing.
7. Illustrations or Explanation

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8. Schedules
 There are two principles which ought to be applied to the combination of an Act and its schedule.
• If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it
is prima facie at any rate devoted to that purpose, then the Act and the schedule must be read as if the schedule were operating for
that purpose only.
• If Schedule and Act are inconsistent to each other, first an attempt should be made to harmonize both but if conflict is not resolved the
Act shall prevail.
B. External Aidsin Interpretation

Apart from the intrinsic aids, such as preamble and purview of the Act, the Court can consider resources outside the Act, called the
extrinsic aids, in interpreting and finding out the purposes of the Act.
1. Parliamentary History
2. Reference to Reports of Committees
3. Reference to other Statutes
4. Dictionaries

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4. GENERAL CLAUSES ACT, 1897

OBJECT OF GENERAL CLAUSES ACT
1. Shorten the language of Central legislations.
2. Provide uniformity by defining common legal terminology.
3. Provide for various definitions which help to interpret various statutes.
4. Avoid unnecessary repetitions of same words in various Acts.
5. Provide for general definitions of words which are not specifically defined under an Act.
6. Helps to resolve any conflict between 2 or more Central legislations.
GENERALRULE OFCONSTRUCTION
 A rule of construction is a principle that either governs the effect of the ascertained intention of a document or agreement containing an
ambiguous term or establishes what a court should do if the intention is neither express nor implied.
 A regular pattern of decisions concerning the application of a particular provision of a statute is a rule of construction that governs how
the text is to be applied in similar cases.
 Contra proferentem and Ejusdem Generic are two examples of rules of construction.
 According to Contra Proferentem Rule, if a clause in a contract appears to be ambiguous, it should be interpreted against the interests of
the person who insisted that the clause be included.
 Likewise Ejusdem Generis Rule states that where a law lists specific classes of persons or things and then refers to them in general, the
general statements only apply to the same kind of persons or things specifically listed
 In the rule of construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance,
contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or
particulars such construction is, if possible, to be adopted as will give effect to all.
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KINDS OFRULE OFCONSTRUCTION AND INTERPRETATION

1. The Literal Rule of Interpretation:
2. Purposive Rule of Interpretation

An ‘enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in
relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find
a construction which applies the remedy provided by it in such a way as to suppress that mischief.
i. In Heydon’s Case, it was resolved “that for the sure and true interpretation of all statutes in four things are to be considered: i. What
was the Common Law before the making of the Act;
ii. What was the mischief and defect for which the Common Law did not provide;
iii. What remedy the Parliament had resolved and appointed to cure the disease of the Commonwealth; and
iv. The true reason of the remedy
3. Harmonious Construction
4. Rule of Beneficial Construction:

 Beneficent construction involves giving the widest meaning possible to the statutes.
 When there are two or more possible ways of interpreting a section ora word, the meaning which gives relief and protects the benefits
which are purported to be given by the legislation, should be chosen.
5. Strict Construction of Penal Statutes

 The general rule for the construction of a penal statute is that itwould be strictly interpreted, that is, if two possible and reasonable
constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty
rather than the one which imposes a penalty.

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RETROSPECTIVEAMENDMENTS
Where a particular date of enforcement of the Act is specified – The Act will become effective on given specified date. Where no particular
date of enforcement of the Act is specified –
If Act is made before commencement of the The Act date it Governor will become
Indian Constitution effective on receives the assent of General
If Act is made after commencement of the The Act will become effective on the date it
Indian Constitution receives the assent of the President
The regulation shall come into force instantly on the ending of the day prior to its commencement unless expressly provided.
EFFECT OFREPEALMENT
Where any Central legislation or any regulation enacted after the commencement of this Act repeals any Act made or yet to be made,
unless another purpose exists, the repeal shall not:
 Renew anything not enforced or prevailed during the period at which repeal is effected or;
 Affect the prior management of any legislation that is repealed or anything performed or undergone or;
 Affect any claim, privilege, responsibility or debt obtained, ensued or sustained under any legislation so repealed or;
 Affect any punishment, forfeiture or penalty sustained with regard to any offence committed as opposed to any legislation or
 Affect any inquiry, litigation or remedy with regard to such claim, privilege, debt or responsibility or any inquiry, litigation or remedy
maybe initiated, continued or insisted.

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POWERS AND FUNCTIONARIES

Powers conferred to be exercisable from time to time [Section 14]
1) Where, by any Central Act or Regulation made after the commencement of this Act, any power is conferred, then unless a different
intention appears that power may be exercised from time to time as occasion requires.
2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887
Power to appoint to include power to appoint ex officio [Section 15] Where, by any Central Act or Regulation, a power to appoint any
person to fill any office or execute any function is conferred, then, unless it isotherwise expressly provided, any such appointment, if it is
made after the commencement of this Act, may be made either by name or by virtue of office.
Power to appoint to include power to suspend or dismiss [Section 16] Where, by any Central Act or Regulation, a power to make any
appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the
appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that
power.
Substitution of functionaries [Section 17]

1) In any Central Act or Regulation, made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the
application of a law to every person or number of persons for the time being executing the function of an office, to mention the official
title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.
2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the
fourteenthday of January, 1887.
Successors[Section 18]
1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the
relation of a law to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the
functionaries or corporations.
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2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or
after the fourteenthday of January, 1887.
Officials chiefs and sub-ordinates[Section 19]

1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of
expressing that a law relative to the chief or superior of an office shall apply to the deputies orsubordinates lawfully
performing the duties of that office in the place of their superior, to prescribe the duty of the superior.
2) This section applies also to all Central Acts made after the third day of January, 1868,
Section 21 of the General Clause Act deals with power to issue, to include power to add to, amend, vary or
rescind notifications, orders, rules or bye laws.
It says where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is
conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and
conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
and to all Regulations made on or after the fourteenthday of January, 1887. Power as to Orders, Rules etc., made under
Enactment

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5. Administrative law
INTRODUCTION
The study of Administrative law involves analysis of the institutions and legal rules through which governmental decision making is
authorized, affected, limited and reviewed. Administrative law is that branch of law that deals with powers, functions and responsibilities of
various organs of the state.
Some of the definitions by theorists are given below:
1. Kenneth Culp Davis
 Kenneth defines administrative law as the law concerning the power sand procedures of administrative agencies, including especially
the law governing the judicial review of administrative action.
 An administrative agency, according to him, is a government authority, other than a court and a legislative body, which affects the rights
of private parties either through adjudication or rule-making.
 He further adds that apart from judicial review, the manner in which public officials handle business unrelated to adjudication or rule-
making is not a part of administrative law.
NEED FOR ADMINISTRATIVE LAW
The modern state typically has three organs- legislative, executive and judiciary.
 The ambit of administration is wide and embraces following elements withinits ambit:-
 It makes policies,
 It executes, administers and adjudicates the law

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 It exercises legislative powers and issues rules, bye- laws and orders of a general nature.
 Since the whole purpose of bestowing the administration with larger powers is to ensure a better life for the people, it is necessary to
keep a check on the administration, consistent with the efficiency, in such a way that it does not violate the rights of the individual
 It is the task of administrative law to ensure that the governmental functions are exercised according to law and legal principles and
rules of reason and justice. The goal of administrative law is to ensure that the individual is not at receiving end of state’s administrative
power and in cases where the individual is aggrieved by any action of the administration, he or she can get it redressed.
SOURCES OF ADMINISTRATIVE LAW
There are four principal sources of administrative law in India.
1. Constitution of India
 It is the primary source of administrative law.
 Article 73 of the Constitution provides that the executive power of the Union shall extend to matters with respect to which the
Parliament has power to make laws. Similar powers are provided to States under Article 62.
2. Acts/ Statutes
 Acts passed by the central and state governments for the maintenance of peace and order, tax collection, economic and social growth
empower the administrative organs to carry on various tasks necessary for it.
 These Acts list the responsibilities of the administration, limit their power in certain respects and provide for grievance redressal
mechanism for the people affected by the administrative action.
3. Ordinances, Administrative directions, notifications and Circulars

 Ordinances are issued when there are unforeseen developments and the legislature is not in session and therefore cannot make laws.
 The ordinances allow the administration to take necessary steps to deal with such developments.
 Administrative directions, notifications and circulars are issued by the executive in the exercise of power granted under various Acts.
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4. Judicial decisions
Judiciary is the final arbiter in case of any dispute between various wings of government or between the citizen and the administration.
The courts through their various decisions on the exercise of power by the administration, the liability of the government in case of breach
of contract or tortuous acts of Governments servants lay down administrative law which guide their future conduct.
ADMINISTRATIVE DISCRETION
 It means the freedom of an administrative authority to choose from amongst various alternatives but with reference to rules of reason
and justice and not according to personal whims. The exercise of discretion should not be arbitrary, vague and fanciful, but legal and
regular.
 The government cannot function without the exercise of some discretion by its officials. It is necessary because it is humanly impossible
to lay down a rule for every conceivable eventuality that may arise in day to-day affairs of the government. It is, however, equally true
that discretion is prone to abuse. Therefore there needs to be a system in place to ensure that administrative discretion is exercised in
the right manner.
JUDICIALCONTROLOVER ADMINISTRATIVEACTIONS
A. CONSTITUTIONAL
• The Constitution of India is supreme and all the organs of state derive their existence from it.
• Consequently, an Act passed by the legislature is required to be in conformity with the requirements of the Constitution and it is for the
judiciary to decide whether or not that Act is in conformity with the Constitutional requirements. If it is found in violation of the
Constitutional provisions the Court has to declare it unconstitutional and therefore, void.
Judicial Review
 Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of
provisions of the Constitution.
 Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government
agency within that jurisdiction.
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Judicial review is exercised at two stages:
1. Judicial review at the stage of delegation of discretion The court exercise control over delegation of discretionary powers to the
administration by adjudicating upon the constitutionality of the law under which such powers are delegated with reference to the
fundamental rights enunciated in Part III of the Indian Constitution. Therefore, if the law confers vague and wide discretionary power on
any administrative authority, it may be declared ultra vires Article 14, Article 19 and other provisions of the Constitution
2. Judicial review at the stage of exercise of discretion
 No law can clothe administrative action with a complete finality even if the law says so, for the courts always examine the ambit and
even the mode of its exercise to check its conformity with fundamental rights.
 The courts in India have developed various formulations to control the exercise of administrative discretion, which can be grouped under
two broad heads, as under:
a) Authority has not exercised its discretion properly- ‘abuse of discretion’.
i. Mala fides:
 If the discretionary power is exercised by the authority with bad faith or dishonest intention, the action is quashed by the court.
 Malafide exercise of discretionary power is always bad and taken as abuse of discretion.
ii. Irrelevant considerations:
iii. Leaving out relevant considerations:
iv. Arbitrary orders:
The order made should be based on facts and cogent reasoning and not on the whims and fancies of the adjudicatory authority.
v. Improper purpose:
The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for
another purpose it will amount to abuse of power.
vi. Colour able exercise of power:
Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been
given but in reality for some other purpose, it is taken as colourable exercise of the discretionary power and it is declared invalid.

JIGL Revision Notes
vii. Non-compliance with procedural requirements and principles of natural justice:

viii. Exceeding jurisdiction:
b) Authority is deemed not to have exercised its discretion at all- ‘non- application of mind
i. Acting under dictation:
 Where the authority exercises its discretionary power under the instructions or dictation from superior authority it is taken as non-
exercise of power by the authority and its decision or action is bad.
ii. Self restriction:
 If the authority imposes fetters on its discretion by announcing rules of policy to be applied by it rigidly to all cases coming before it for
decision, its action or decision will be bad.
iii. Acting mechanically and without due care:
B. STATUTORY
The method of statutory review can be divided into two parts:
1. Statutory appeals: There are some Acts, which provide for an appeal from statutory tribunal to the High Court on point of law. e.g.
Section 30 Workmen’s Compensation Act, 1923.
2. Reference to the High Court or statement of case: There are several statutes, which provide for a reference or statement of case by an
administrative tribunal to the High Court. Under Section 256 of the Income-tax Act, 1961 where an application is made to the Tribunal
by theassessee and the Tribunal refuses to state the case the assessee may apply to the High Court and if the High Court is not satisfied
about the correctness of the decision of the Tribunal, it can require the Tribunal to state the case and refer it to the Court.

JIGL Revision Notes
C. ORDINARY OREQUITABLE
1. Injunction
An injunction is a preventive remedy. It is a judicial process by which one who has invaded or is threatening to invade the rights of another is
restrained from continuing or commencing such wrongful act. An injunction can be issued to both administrative and quasi-judicial bodies.
Injunction may be prohibitory or mandatory.
a) Prohibitory Injunction:
Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the plaintiff. A prohibitory injunction
may be interlocutory or temporary injunction or perpetual injunction.
i. Interlocutory or temporary injunction:
 Temporary injunctions are such as to continue until a specified time or until the further order of the court.
ii. Perpetual injunction:
 A perpetual injunction is granted at the conclusion of the proceedings and is definitive of the rights of the parties, but it need not be
expressed to have perpetual effect
b) Mandatory injunction:
When to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the court is capable of
enforcing, the court may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the
requisite acts.
2. Declaratory Action
 In some cases where wrong has been done to a person by an administrative act, declaratory judgments may be the appropriate remedy.
 Declaration may be taken as a judicial order issued by the court declaring rights of the parties without giving any further relief.
 Thus a declaratory decree declares the rights of the parties. In such a decree there is no sanction, which an ordinary judgment prescribes
against the defendant.
3. Action for damages
If any injury is caused to an individual by wrongful or negligent acts of the Government servant, the aggrieved person can file suit for the
recovery of damages from the Government concerned.
JIGL Revision Notes
PRINCIPLES OF NATURAL JUSTICE

Natural justice is a concept of Common Law and represents procedural principles developed by judges.
Though it enjoys no express constitutional status, it is one of the most important concepts that ensure that people retain their faith in the
system of adjudication.
1. Rule against bias (nemojudex in causa sua):
 According to this rule no person should be made a judge in his own cause.
 Bias means an operative prejudice whether conscious or unconscious in relation to a party or issue. It is a presumption that a person
cannot take an objective decision in a case in which he has an interest.
 The rule against bias has two main aspects- one, that the judge must not have any direct personal stake in the matter at hand and two,
there must not be any real likelihood of bias.
 Bias can be of the following three types:
a) Pecuniary bias.
b) Personal bias.
c) Subject matter bias - Such bias can be classified into four categories.
• Partiality or connection to the issue
• Departmental bias
• Prior utterances and pre-judgment of issues
• Acting under dictation
2. Rule of fair hearing (audi alteram partem):
The second principle of natural justice is audi alteram partem (hear the other side) i.e. no one should be condemned unheard. It requires
that both sides should be heard before passing the order.
This rule implies that a person against whom an order to his prejudiceis passed should be given information as to the charges against him
and should be given opportunity to submit his explanation thereto.
Following are the ingredients of the rule of fair hearing:
a) Right to notice:
b) Right to present case and evidence
JIGL Revision Notes
c) Right to rebut adverse evidence

1. Cross-examination:
Examination of a witness by the adverse party is called cross- examination. The main aim of cross-examination is the detection of falsehood
in the testimony of the witness.
2. Legal Representation:
• Ordinarily the representation through a lawyer in the administrative adjudication is not considered as an indispensable part of the fair
hearing. However, in certain situations denial of the right to legal representation amounts to violation of natural justice.
d) Disclosure of evidence: A party must be given full opportunity to explain every material that is sought to be relied upon against him.
Unless all the material (e.g. reports, statements, documents,evidence) on which the proceeding is based is disclosed to the party,he cannot
defend himself properly.
e) Speaking orders:
• When the adjudicatory bodies give reasons in support of their decisions, the decisions are treated as reasoned decision. It is also called
speaking order.
EXCEPTIONS TO NATURALJUSTICE
1. Statutory Exclusion:
 Where the statute is silent as to the observance of the principle of natural justice, such silence is taken to imply the observance thereto. However, the
principles of natural justice are not incapable of exclusion. The statute may exclude them.
 When the statute expressly or by necessary implication excludes the application of the principles of natural justice the courts do not ignore the statutory
mandate.
2. Emergency:
 In exceptional cases of urgency or emergency where prompt and preventive action is required the principles of natural justice need not be observed.
 Thus, the pre-decisional hearing may be excluded where the prompt action is required to be taken in the interest of the public safety or public morality and
any delay in administrative order because of pre- decisional hearing before the action may cause injury to the public interest and public safety.
3. Interim disciplinary action:

 The rules of natural justice are not attracted in the case of interim disciplinary action.
JIGL Revision Notes
 For example, the order of suspension of an employee pending an inquiry against him is not final but interim order and the application of
the rules of natural justice is not attracted in the case of such order.
4. Academic evaluation:
Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of
pre- decisional hearing is excluded. The Supreme Court has made it clear that if the competent academic authority assess the work of a
student over the period of time and thereafter declare his work unsatisfactory the rule of natural justice may be excluded but this exclusion
does not apply in the case of disciplinary matters.
5. Impracticability:
 Where the authority deals with a large number of person it is not practicable to give all of them opportunity of being heard and there
forein such condition the court does not insist on the observance of the rules of natural justice.
LIABILITY OF STATE OR GOVERNMENT IN CONTRACT

According to its provisions a contract with the Government of the Union or state will be valid and binding only if the following conditions are
followed:
1. The contract with the Government must be made in the name of the President or the Governor, as the case may be.
2. 2. The contract must be executed on behalf of the President or the Governor of the State as the case may be. The word executed
indicates that a contract with the Government will be valid only when it is in writing.
3. 3. A person duly authorized by the President or the Governor of the State, as the case may be, must execute the contract.
Article 299 (2) of the Constitution makes it clear that neither thePresident nor the Governor shall be personally liable in respect of any
contract or assurance made or executed for the purposes of the Constitution or for the purposes of any enactment relating to the
Government of India. Subject to the provisions of Article 299 (1), the other provisions of the general law of contract apply even to the
Government contract.

JIGL Revision Notes
The Supreme Court has made it clear that the provisions of Article 299 (1) are mandatory and therefore the contract made in contravention
thereof is void and therefore cannot be ratified and cannot be enforced even by in vokingthe doctrine of estoppel. EFFECT OF A VALID
CONTRACT WITH GOVERNMENT As soon as a contract is executed with the Government in accordance with Article 299, the whole law of
contract as contained in the Indian Contract Act, 1872 comes into operation. In India the remedy for the breach of a contract with
Government is simply a suit for damages.
QUASI-CONTRACTUAL LIABILITY
 According to section 70 of the Indian Contracts Act, 1872, where a person lawfully does anything for another person or delivers
anything to him such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to
restore, the thing so done or delivered.
 If the requirements of section 70 of the Indian Contract Act are fulfilled, even the Government will be liable to pay compensation for the
work actually done or services rendered by the State.
 Section 70 enables a person who actually supplies goods or renders some services not intending to do gratuitously, to claim
compensation from the person who enjoys the benefit of the supply made or services rendered. It is a liability, which arise on equitable
grounds even though express agreement or contract may not be proved.
SUIT AGAINST STATE IN TORTS
 A tort is a civil wrong arising out of breach of a civil duty or breach of non-contractual obligation and the only remedy for which is
damages.
 When the responsibility of the act of one person falls on another person, it is called vicarious liability. For example, when the servant of a
person harms another person through his act, we held the servant as well as his master liable for the act done by the servant.
 Similarly, sometimes the state is held vicariously liable for the torts committed by its servants in the exercise of their duty. The State
would of course not be liable if the acts done were necessary for protection life or property. Acts such as judicial or quasi-judicial
decisions done in good faith would not invite any liability.
JIGL Revision Notes
 In India Article 300 of the Constitution declares that the Government of India or of a State may be sued for the tortious acts of its
servants in the same manner as the Dominion of India and the corresponding provinces could have sued or have been sued before the
commencement of the Constitution. This rule is, however, subject to any such law made by the Parliament or the State Legislature.
DAMAGES
 It may happen that a public servant may be negligent in exercise of his duty. It may, however, be difficult to recover compensation from
him. From the point of view of the aggrieved person, compensation is more important than punishment. Therefore, like all other
employers the State must be made vicariously liable for the wrongful acts of its servants
 The Courts in India are now becoming conscious about increasing cases of excesses and negligence on the part of the administration
r resulting in the negation of personal liberty.
 Hence, they are coming forward with the pronouncements holding the Government liable for damages even in those cases where the
plea of sovereign function could have negative the governmental liability.
LIABILITY OF THE PUBLIC SERVANT

 Liability of the State must be distinguished from the liability of individual officers of the State. So far as the liability of individual officers
is concerned, if they have acted outside the scope of their powers or have acted illegally, they are liable to same extent as any other
private citizen would be. The ordinary law of contact or torts or criminal law governs that liability.
 An officer acting in discharge of his duty without bias or malafides could not be held personally liable for the loss caused to other
person. However, such acts have to be done in pursuance of his official duty and they must not be ultra vires his powers. Where a public
servant is required to be protected for acts done in the course of his duty, special statutory provisions are made for protecting them
from liability.

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JIGL

Somya kataria (CS, MBA) (9131993373)

UNIT 1: SOURCES OF LAW

Somya kataria (CS, MBA) (9131993373)

◦ 2. Positivistic Definition of Law

◦ 2nd Law is to serve social purpose.

Somya kataria (CS, MBA) (9131993373)

◦ MAIN FEATURES OF LAW:

Laws are made effective:

III. By preventing Disobedience

IV. By administering some form of punishment

Somya kataria (CS, MBA) (9131993373)

Somya kataria (CS, MBA) (9131993373)

◦ SOURCES OF INDIAN LAW

A. Principle or Primary source

1. Customs or Customary Law

Somya Katariya (CS, MBA)

Requisites of a Valid Custom

i. Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient.

Somya kataria (CS, MBA) (9131993373)

Somya Katariya (CS, MBA)

2. Judicial Decision or Precedents

Somya kataria (CS, MBA) (9131993373)

Somya Katariya (CS, MBA)

◦ Doctrine of Stare Decisis

 This rule is based on public policy and expediency.

◦ Ratio decidendi contains the following basic ingredients:

1. Findings or material facts, both direct and inferential

3. A judgement (or judgements) based on the combined effect or 1& 2

Somya Katariya (CS, MBA)

 The judges are not boundEnvironmental

Hindu Sources Shruti and Smriti

Muslim Law Sources • The holy kuran

Somya kataria (CS, MBA) (9131993373)

Somya Katariya (CS, MBA)

B Secondary source of Law

1. Justice, Equity and Good Conscience

2. Sources of English Law

Somya kataria (CS, MBA) (9131993373)

 MERCANTILE LAW OR COMMERCIAL LAW

The following are the main sources of Mercantile Law in India:

Somya kataria (CS, MBA) (9131993373)

Roscoe pound Theory

Roscoe pound’s classify interest in following 3 categories

John William Salmond’s theory

Hans Kelson’s pure theory of Law

Somya kataria (CS, MBA) (9131993373)

◦ Jaremy Banthem’s theory of Law

Jeremy Bentham was the pioneer of analytical jurisprudence in Britain.

Somya kataria (CS, MBA) (9131993373)

Somya kataria (CS, MBA) (9131993373)

Justifiability of Fundamental Rights

Somya kataria (CS, MBA) (9131993373)

Single Person Law

Somya kataria (CS, MBA) (9131993373)

Somya kataria (CS, MBA) (9131993373)

Somya kataria (CS, MBA) (9131993373)

Article 16: Equality of opportunity in matters of public employment.

Article 17: Abolition of untouchability

Somya kataria (CS, MBA) (9131993373)