Centre for Aerospace & Defence Laws (CADL)

Directorate of Distance Education

NALSAR University of Law, Hyderabad

Course Material
ONE YEAR ADVANCED DIPLOMA IN
AVIATION LAW AND
AIR TRANSPORT MANAGEMENT

1.1.1. GENERAL PRINCIPLES OF LAW

Compiled by:
Prof. (Dr.) V. Balakista Reddy

(For private circulation only)

© NALSAR University of Law, Hyderabad (Print 2021)

Re-Print 2022

(For private circulation only)

Page | 2
 1.1.1 GENERAL PRINCIPLES OF LAW
Introduction: It is a well-known legal maxim ‘ignorantia juris neminem excusat’ which
means that ‘ignorance of law is no excuse’. This is one of the most fundamental principles of
law followed since time immemorial. With the growing complexities in the nature of a
society, legal awareness is of utmost importance as it is the foundation on which civil society
is based. Knowledge of law helps students to understand their own rights and obligations as a
responsible citizen of a country and a member of the global community. Law has an impact
on every small aspect of our lives; therefore knowledge of law can open new avenues of
professional opportunities that you were previously unaware of.
Though law for centuries together has been taught as a professional course yet it is very
essential that every person should be aware about the general principles of law for several
reasons like, understanding of public affairs and awareness on our rights and duties. Further
there are numerous myths and wrong notions about law and legal principles which a non-
legal professionals might only be able to understand once they have a thorough
understanding of its fundamental operations.
Every action of ours is governed by a code of conduct, be it moral or legal; direct or indirect.
Law is a system of rules which regulates human conduct in the society. Legal systems are
often based on moral, legal, ethical or religious principles and are enforced by the police and
criminal justice systems such as the courts. Therefore, knowledge about the practical aspects
of law is as important as knowledge about theory and principles of law.
For this reason, a paper on the ‘General Principles of Law (GPL)’ is designed with the
intention of providing the course participants with an overall understanding of the
fundamental concepts and principles of law and also develop a perspective on the functioning
of law in government, society and our lives. Below is a brief overview of the contents of the
modules:

Module I - Introduction to Law

Having regard to the importance of the fundamental understanding of law, the first module of
this paper focuses on basic concepts, definition and source of law. It gives a brief background
to the meaning of law and its varied forms. The module will also look into the law reforms
and the transition of law as per the changing needs of a growing society. Without public
enforcement agencies the concept of law will just remain an abstract notion. The module
further goes on describing the classification of global legal systems, legal system amongst
International Institutions and countries inter se and the impact of globalization on legal
systems.

Module II – Constitutional Law and Administrative Law

The second module entails a brief discussion on India’s Constitution which is the supreme
law of the land and the Administrative Law. The module is divided into two parts. First part
deals with the nature, history and development, salient features and other significant areas of
the constitution including fundamental rights, directive principles, fundamental duties, center
state relations, etc. The second part of the module deals with the significant aspects of
administrative law including the meaning, nature, scope and importance of administrative

Page | 3
law in a contemporary society. Further, the module also covers other important principles of
administrative law including principles of natural justice, separation of power, rule of law,
delegated legislation, administrative discretion and so on.

Module III: Indian Judicial and Legal System

Law is no longer an abstract notion but as discussed above it lies down and regulates the
human code of conduct. Hence the discussion on the evolution and practical operation of law
in India becomes extremely crucial. With this objective in mind, the third module has been
designed to deal with the historical evolution of the Indian Legal System starting from the
ancient Indian law and the module thereafter discusses the administration of justice in India
including the discussion on the Indian judiciary, civil and criminal court structures and its
procedures. Further, the module also covers institutional dispute settlement including
Supreme Court, High Courts and District Courts, etc. This module also discusses the quasi-
judicial framework which has assumed tremendous importance in the modern times to ensure
speedy and inexpensive justice to the parties.

Module IV – Dispute Settlement: The Role of ADRs and ODRs

This module briefly covers two important dispute resolution mechanisms i.e. Alternative
Dispute Resolution (ADR) mechanism and Online Dispute Resolution (ODR), which are
capable of providing a substitute to the conventional methods of resolving disputes. ADR
offers to resolve all type of matters including civil, commercial, industrial, family etc., where
people are not being able to start any type of negotiation and reach the settlement. Generally,
ADR uses neutral third party who helps the parties to communicate, discuss the differences
and resolve the disputes. It is a method which enables individuals and groups to maintain co-
operation, social order and provides opportunity to reduce hostility. This module also covers
Online Dispute Resolution (“ODR”) mechanism which is the newest entrant to the family of
ADR. The Online Dispute Resolution is definitely a new technique for resolving disputes and
is obviously, a technology centric mechanism. ODR employs either arbitration, negotiation,
mediation or all of them combined. ODR is, in fact, area specific and specialised method for
resolving disputes. ODR essentially is a techno-savvy mechanism for resolving disputes by
using: (a) internet related tools like e-mail; and (b) videoconferencing, teleconferencing etc.
in emerging areas like intellectual property disputes, cyber disputes, commercial disputes etc.

Module V – Interface Between Law and Technology

There has always been a close yet conflicting relationship between Law & Technology. The
matter of whether Law should follow technology, or the other way around has always been a
subject matter of debate. More often than not, Law has always struggled to keep pace with
technological developments. Keeping these debate in mind, the fifth module is introduced to
study the interface between Law and Technology.
This module discusses various new and emerging technologies such as virtual reality (VR),
Internet of Things (IoT), Artificial Intelligence (AI), Automation, Big Data, Block Chain, 3D
Printing, Cyber Technology, Cloud Computing, Crypto Currency, Drones, Energy, Genetic,
Geo Spacial, Mobile, Machine learning Nano, Robotics Technologies etc. The A-Z
technologies have indeed become an indispensable part of our daily lives and are changing

Page | 4
the living patterns of the human beings. However, each of these technologies and many more
to come have brought numerous legal challenges like Privacy, Security, Jurisdiction,
Liability, IP Protection, Taxation, use of e-evidence etc.

Module VI- Legal Research Methodology and Project Writing Techniques

The objective of introducing this module in curricula is to develop the research skills of the
students and it also covers around 40 percent of total grade in the course.
Research is a desire to search or to find out or to explore an unknown area in order to find an
answer. It is a quest for acquiring knowledge. Research is a careful investigation or inquiry
especially through search for new facts in any branch of knowledge. Legal Research means
research in law which deals with the principles of law and legal institutions. The objective
may be to discover new facts or to verify the existing facts, to propound a new legal concept
or to analyse existing law and give suggestions for a new law.
In order to successfully complete a research project a researcher must be aware of the
methods of undertaking a research. A research method is a systematized investigation to gain
new knowledge about the phenomena or problems. In a broader sense the research
methodology includes the research methods as well as the philosophy and practice of the
whole research process. A good research method is crucial for conducting proper research
and getting useful results. This module is designed to give an insight into the meaning and
significance of research methods for legal research and aims to provide an understanding of
the various types of research methods and the different techniques of legal research and legal
writing with a view to equip the students for further research in law.

Page | 5
Page | 6
 TABLE OF CONTENTS
MODULE I - INTRODUCTION TO LAW 09-28
Why Study Law
Why Introduction to Law in First Semester and its significance
Nature and Sources of Law
 Meaning, Classification and Theories of Law
 Sources of Law and Operative Tools
 Law Reforms

Classification of Global Legal Systems

 Common law and Civil law system
 Religious and Customary Legal System
 Legal System amongst International Institutions and countries inter se
 Impact of globalisation on legal systems
MODULE II – CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW 29-76
Constitution of India
 Features of the Indian Constitution
 Preamble of the Indian Constitution
 Fundamental Rights and Directive Principles of State Policy
 Fundamental Duties
 Relationship between Union & State
 Emergency
 Amendment Provision
 Fundamental Principles of Constitutional Law
Administrative Law
 Definition and Nature Administrative Law
 Relationship between Administrative Law and Constitutional Law
 Classification of Administrative Action
 Doctrine of Separation of Powers
 Rule of Law, Principle of Natural Justice and Delegated Legislation
 Administrative Discretion and its Judicial Control
 Administrative Adjudication and Administrative Tribunals
 Judicial Control of Administrative Action
 Administrative Framework of Aviation Sector in India

Module III: INDIAN JUDICIAL AND LEGAL SYSTEM 77-112

 Legal Theory and Doctrine of Separation of Powers
 Historical Evolution of the Indian Legal System
 Functions of Judiciary and its Importance
 Appointment, Transfer and Removal of Judges
 Judicial Courts and Pr ocedures
 Quasi -Judicial Framewor k
 Indian Judiciary under the I ndian Constitution
 Public Interest Litigation
 E-Courts and Virtual Courts
 Recent Landmark Judgments

Page | 7
MODULE IV – DISPUTE SETTLEMENT: THE ROLE OF ADR AND ODRS 113-152

Alternate Dispute Resolution:

 Introduction
 Importance of ADR
 Provisions related to ADR
 Terms to Know
 Modes of ADR – Arbitration, Mediation, Conciliation and Lok Adalat
 Requirement of ADR in Intellectual Property Disputes
 ADR in Aviation Sector

Online Dispute Resolution:

 Introduction
 Definition and Nature of ODR
 Forms of ODR
 Is ODR ideal for India
 Problems ODR faces in India
 Need for Robust ODR Mechanisms during COVID-19 or any other pandemic
 Challenges in online mediation

MODULE V – INTERFACE BETWEEN LAW AND TECHNOLOGY 153-198

 Evolution of Technology including Fourth Industrial Revolution

 Pros and Cons of Fourth Industrial Revolution
 Traditional and Modern New Technologies and Legal Issues
 New and Emerging Technologies and its Legal Issues
 NET and State Sovereignty, State Jurisdiction and State Responsibility
 Implementation of NET/ NEST in India
 General Legal issues in Application of Technologies
 A Few Specific Emerging Technologies and Legal Issues
 Trade, Property Rights, Law and Technology
 Interface between Law and Technology in India

MODULE VI- LEGAL RESEARCH METHODOLOGY AND PROJECT WRITING

TECHNIQUES 199-224
 Legal Research
 Imperatives of research
 Chapter Outline
 Citing Cases
 Internet Citation Formats
 Footnotes
 Some points to remember

Page | 8
 MODULE - I
INTRODUCTION TO LAW

Page | 9
Page | 10
 MODULE I - INTRODUCTION TO LAW

Significance of Law: One of the most important functions of law in any society is to provide
stability, predictability and continuity so that people can know how to order their affect. If
any society is to service, its citizens must be able to determine what is legally right and
legally wrong. They must know what sanctions will be imposed on them if they commit
wrongful acts. If they suffer harm as a result of others’ wrongful acts they must know how
they can seek justice and remedy. By setting forth the rights, obligations and privileges of its
citizens, the law enables individuals to go about their business with confidence and a certain
degree of predictability.
Although law has various definitions, they all are based on the general observation that “law
consists of enforceable rules governing relationship among individuals and between
individuals and the society”. In some societies, these enforceable rules consist of unwritten
principles of behavior. In other societies, they are set forth in ancient or contemporary law
codes. In India, our rules consist of written laws and court decisions created by modern
legislative and judicial bodies. Regardless of how such rules are created, they all have one
feature in common: “they establish rights, duties, and privileges that are consistent with the
values and beliefs of their society or its ruling group.”
Why Study Law? Law impacts on every human activity undertaken within society. Imagine
going to work in the morning. Decide whether you wish to drive or take the train. If you
drive, the road rules will help you get to your office safely. If you take the train, the contract
you make by buying a ticket will oblige the rail company to take you there. When you get to
your office, your employment contract (or some statute) will determine what you do and how
much you get paid. Imagine just about any activity, and you will find law in attendance –
sometimes helping, sometimes hindering.1 Hence Law affects everything, and studying it
gives you the freedom to develop your interest in almost anything, from geopolitics in
international law to medicine to tort law and offers the opportunity to develop a range of
skills and explore many aspects of human life. It gives you the chance to sharpen your mind,
strengthen your understanding, and deepen your experience across the full range of
humanities and social sciences.
In his book ‘Letters to a law student’, Nicholas J Mc Bride mentions four primary reasons to
study law.2 First is to sharpen your mind; training in law is great at helping you learn how to
think carefully, imaginatively and sensibly. Even though the law touches most aspects of our
lives, its concepts and institutions often remain mysterious and highly contentious; legal
education will demand that you structure and evaluate arguments for and against propositions
that are susceptible to reasoned debate, hence engaging you in critical thinking about
important issues, challenging your beliefs and improving your tolerance for uncertainty. The
second is Rhetoric; Studying law is the closest you can come to getting a course in what the
ancient Greeks and Romans would have called rhetoric: the art of persuading someone to
adopt a particular point of view by speaking and writing effectively. Thirdly, it helps you

1 SURI RATNAPALA, JURISPRUDENCE (3 ed. 2017),

https://www.cambridge.org/core/books/jurisprudence/6C4F2D2460862D1B31D26219AE980B3A.
2 NICHOLAS MCBRIDE & JASON N.E. VARUHAS, LETTERS TO A LAW STUDENT (3 ed. 2014).

Page | 11
form your own views and ideas as to what sort of society we should live in and puts you in a
good position to provide an informed contribution to shaping the future of our society –
whether simply by voting in elections or by working within politics yourself. Of course, it
might be argued that studying philosophy at university would serve just as well to prepare
you for a career in politics. However, there is a crucial difference. When you study
philosophy, you are looking at a set of thinkers’ abstract ideas as to how society should be
ordered. But law exists at the cutting edge of shaping society. As a result, law-makers have a
special responsibility that philosophers are not subject to – the ideas for arranging society
that law-makers give effect to have to work in practice. And Lastly, the skills and knowledge
that you acquire as a law student are invaluable for a range of different careers. Training in
law can give you the skills to be a successful lawyer but also a successful producer,
politician, manager, journalist, diplomat, or police officer; legal knowledge equips you for
almost any profession that requires intellectual strength combined with a practical approach
to the world.
Why Introduction to Law in First Semester and its Significance: The very purpose of this
course is to enhance the basic knowledge and understanding of Law, particularly for the
working people in Aerospace, Defence and Maritime Industries. Law is a massive ocean of
topics; from the origin of law to the execution of the law, a student will get to understand by
studying this subject. This module introduces students to the basic concepts and skills
necessary to engage meaningfully in the study of law. Students will be introduced to the
"idea" of law, given a foundation in the composite elements and structures of the English
legal system, the post-independence legal system, as well as an understanding of the
global/comparative dimension in which any domestic legal system exists.
The module will also give students a grounding in the key skills necessary for undertaking
legal studies, including an understanding of judicial reasoning and precedent, statutory
interpretation and how and when to draw on appropriate academic commentary.

Objectives and learning outcomes of the module:

 To equip students to demonstrate basic knowledge of the core concepts and analytical
skills necessary for the study of law as a distinct discipline, and to interpret and
evaluate the operation of the key rules and principles of the subject.
 To develop the capacity to present and evaluate arguments on the basis of these key
rules and principles.
 To be able to evaluate the appropriateness of different approaches by solving legal
problems.
 To have the ability and capacity to take-up more complex study in the field of law.

Definition, Nature, Sources, and Significance of Law: Law is a system of rules which a
particular country or community recognizes as regulating the actions of its members and
which it may enforce by the imposition of penalties. Also known as rules or regulations, code
of conduct, etc. Laws are essentially made and enforced by the government; they are meant
to control or regulate our behavior, and unlike moral rules, they can be enforced by the
courts. It is a notional pattern of conduct to which actions do or ought to conform. Though
this definition seems to make complete sense, it is only a part of what law actually is. A large
body of Law are based mainly on general principles of justice, fair play, and convenience,

Page | 12
which have been worked out by governmental bodies to regulate human activities. In a
broader sense, ‘Law’ denotes the whole process by which organized society, through
government bodies and personnel (Law-makers, Courts, Tribunals, Law Enforcement
Agencies, and Executive, Penal and corrective Institutions, etc.) attempt to apply rules and
regulations to establish and maintain peaceful and orderly relations amongst the people in the
society.
What is Law? Various jurists have defined the meaning of the law; however, there is no
unanimity of opinion regarding the true definition of law. The reason for lack of consensus
on definition of law is that the subject has been viewed and dealt with by different jurists at
different times and from different points of view, that is to say, from the point of view of
nature, source, function, and purpose of the law, to meet the needs of a certain given period
of legal development. Therefore, it is not practicable to give a precise and definite meaning
to the law, which may hold good for all times to come. However, it is desirable to refer to
some of the definitions given by different jurists so as to develop an understanding of the
term “law”. By the end of this section, when several jurists' views on this matter have been
considered, you may find yourself in a position to decide whose opinion seem to be closest to
providing an answer to this.
In the following pages we will discuss some prominent theories and definitions of law. For
clarity and a better understanding of the nature and meaning of the law, we may classify the
various definitions into five broad schools of thought:
(a) Natural Law,
(b) Legal Positivism,
(c) Historical,
(d) Sociological, and
(e) Realistic.

(a) Natural Law/Idealistic Definition of law: Natural school of law is generally regarded as
the law of nature, divine law or the law that is universal and eternal in nature. It has been
given different meanings at different points of time and though it is created by man, it is
found through the nature of an individual. It is mostly influenced by religion. The central
idea of this theory is that there is a higher law based on morality against which the validity of
human law can be measured. There is a belief that there are certain moral laws that cannot go
against without losing its moral or legal character. If legislation is not moral it is not law.
There is an essential connection between law and morality in this school of law.
Division of Natural Law: Natural law can be broadly divided into four classes: Ancient
theories, Medieval theories, Renaissance theories, Modern theories.

Ancient Theories: The Greek thinkers developed the idea of natural law and laid down its
essential features. At that time in Greece, there was great political instability and it was
thought by many that law is made only to serve the interest of the strong, but the same
situation made some other jurists think in other ways, they saw this as an opportunity to

Page | 13
develop new universal principles that would tackle and control tyranny and arbitrariness of
government.

Socrates view on Natural Law: Socrates believed that as there is natural physical law there is
also natural law. In his concept of natural law, “man has his own insight which makes him
know of the things whether they are good or bad, it is this insight according to him by which
a man is able to inculcate the moral values in him, the only way to judge the basis of law
according to Socrates is man’s insight.” Through his theory, Socrates wanted to ensure peace
and stability in the region which was one of the principle demands of that time.

Aristotle’s view on Natural Law: Aristotle’s concept of natural law is different from that of
Socrates, he divides the life of man in 2 parts, first, he says that man is the creature which is
created by God and second he posses the quality of reason by which he can develop his own
will. It is this reason through which one can discover the principle of natural justice. Aristotle
is considered to be the founding father of natural law school and gave this theory a very solid
ground so that it could develop naturally.

Medieval Theories: Aquinas: Catholic philosophers and theologians moved away from the
orthodox interpretation of natural law and gave a more logical and systematic theory of
natural law. Thomas Aquinas defined law as “the obedience of reason for the common good
made by him who has the care of the community and promulgated.” He divided the law into
four stages: Law of God, Natural law, Divine law, Human laws. Natural law is that part
which reveals itself in natural reason. This is applied by human beings to govern their affairs
and relations. According to Aquinas positive law must conform to natural law, positive law is
valid only to the extent to which it is compatible with natural law.

Renaissance Theories: This period saw major changes in all aspects of knowledge, this
period was marked by the emergence of new ideas, new branches of knowledge and
discoveries of science shattered the foundation of established values. Secondly, the
developments in the field of commerce led to the emergence of new classes that wanted more
protection from the states. It gave birth to the concept of nationalism. All these factors
together overthrew the dominance of the church. New theories supporting the sovereignty of
the state started coming up. The reason was the foundation stone of all these theories. The
natural law theories of this age also have some characteristics. This theory proceeds with a
belief that a social contract is the basis of society.

Theories of Social Contract: Social contract theory presupposes a state of nature, various
philosophers have described their own state of nature. In simple terms state of nature is the
condition before a contract has been entered into, whatever may be the situation people
entered into a contract either with themselves or with a single person under where
philosophers are very important to understand the development of natural law during the
Renaissance period. These philosophers are: Thomas Hobbes, John Locke, Rousseau.

Page | 14
Thomas Hobbes: Hobbes State of nature- Under his state of nature, man lived in a chaotic
state, according to him, man’s life in a state of nature was that of fear and selfishness. It was
solitary, nasty, brutish and short.

Hobbes Contract: Under the prevailing circumstances, people, in order to get rid of their
miseries, entered into a contract under which they surrendered all their rights to a single
person. The law of nature can be discovered by reason which says what a man should do or
not do. Man has a natural desire for security and order, this can be achieved only by
establishing a superior authority that must command authority. Therefore he advises the
sovereign that he must command with the natural law.

Hobbes support for Absolutism: Hobbes theory of natural law is a plea to support the
absolute authority of the sovereign. He advocated for the established order, he stood for
stable and secure governments.

John Locke: Locke’s State of Nature: Locke’s view on the state of nature was completely
different from that of Hobbes. He also interpreted the natural law in a different way. Locke
was in favor of individualism and therefore for him, natural law meant giving individuals
more power than the sovereign. Locke’s state of nature was a golden age for man, but as the
society grew and people started establishing the concept of property, people become insecure
about their property.

Locke’s Contract: It was for the purpose of protection of property that man entered into a
social contract. Under this contract, he did not surrender all his rights, but only a part of
them. All these rights were surrendered in order to maintain order and to enforce the law of
nature. The natural rights like the right to liberty, property, and life were to be retained by
man.

Locke’s support to Individual Liberty: Locke stood for individual liberty and advocated that
the powers of the sovereign is not unlimited. According to Locke individual has a right to
protest against the sovereign if he is unable to protect the rights of the individual, individuals
also have a right to overthrow the existing government. According to him an individual’s
right to liberty, property, and life are the basic natural rights and the sovereign must realize
these rights and take a decision, taking into consideration the above-mentioned rights.

Rousseau: Rousseau’s state of nature: Under Rousseau, natural law and social contract
received a new interpretation. For him, a social contract is the hypothetical construction of
reason. Before the social contract man lived a happy life, there was equality amongst men.

Rousseau’s Contract: According to Rousseau man entered into a contract in order to

preserve the rights of equality and freedom, they surrendered their rights not to a single
individual but to the community as a whole which Rousseau calls it as the general will.

Page | 15
Theory of General Will: According to Rousseau, it is the duty of an individual to obey the
general will because in that way he is obeying his own will. The government and laws made
must conform itself with the general will and if they are not able to so that they could be
overthrown, in brief Rousseau stood for the interest of the community rather than the interest
of the individual, his natural law theory stood for equality and freedom of men.

Modern theories: Nineteenth Century: The decline of Natural Law theories: The 19th
century saw the decline of natural law, the natural law theories reflected more or less the
great economic and political changes which had taken place in Europe. Reason or rationalism
was the spirit of the eighteenth-century thought. The problems created by the new changes
and developments demanded political and concrete solutions. Individualism gave way to
collectivistic outlook, modern sciences and political theories started preaching that there are
no absolute and unchangeable principles. Many historians rejected the social contract theory
by saying that it was a myth. All these factors gave a strong blow to natural law.

Twentieth Century: The revival of Natural law theories: During the end of the 19th
century, we saw the revival of natural law theories mainly due to the following reasons:

 It emerged as a reaction against the legal theories which had exaggerated the
importance of positive law.
 It was realized that abstract thinking was not completely futile.
 Positivist theories failed to solve the problems created by the changed social
conditions.
 The ideologies of Fascism has also led to the revival of natural law theories, as at that
time during the two world wars, the world witnessed great destruction of human lives
and property and principles of natural law were approached in order to attain peace.

(b) Legal Positivism: The main feature of legal positivism is its insistence that the law of
society be identified purely by ‘social facts’ and that one does not need a moral argument to
work out the content of the law. The legal positivist does not deny that law is very often
influenced by morality or even that there may be necessary connections between law and
morality; however, according to them, the validity of the law is independent of its moral
content. A law is considered valid if it has been created by the will of those that have had
sovereign power over others.3 The main supporters of legal positivism include Bentham
(1748–1832), Austin (1790–1859), Herbert Hart (1907–1992), and Joseph Raz. However,
legal positivism's true philosophical origins probably reside in the great seventeenth-century
philosopher, Thomas Hobbes. For Hobbes, the law was an exercise in the expression of the
sovereign will. As Hobbes commented: “The civil laws are the commands of him who hath
the chief authority for direction of the future actions of his citizens.”4

3 Tim S. Gray, Leviathan, in OXFORD COMPANION TO BRITISH HISTORY (2009).

4 Id.

Page | 16
In this view of the law, the laws are essentially rules laid down and upheld by the sovereign,
and the sovereign is the person or persons with effective authority in a society. The law
represented for Hobbes- the sovereign’s will and judgment as to what the law’s subjects, the
citizens, must do. The Hobbesian conception of law, ‘the command theory,’ was later
developed by the two great positivist thinkers of the nineteenth century, Jeremy Bentham and
John Austin. According to Austin, “Law is the aggregate of commands set by man as
politically superior, or sovereign, to men as a political subject.” In other words, the law is
the “command of the sovereign,” and it obliges a specific course of conduct or imposes a
duty and is backed by a sanction.
The law of any society with a ‘sovereign’ was to be identified by asking two fundamental
questions: (a) who is the ‘sovereign’? (Austin believed every organised society had a
‘sovereign’ who obeyed no other authority and was itself obeyed by the bulk of the
population), and (b) what has the sovereign commanded? In this simple way, any society's
law could be distinguished from the norms of morality, religion, and custom of that society.
Therefore, legal positivism recognizes that “the virtue of law is that it forms a public and
dependable set of standards for the guidance of officials and citizens, whatever the
disagreements in that society over the dictates of morality, religion, or custom.” Thus, the
command, duty, and sanction are the three elements of the law.5 ‘The command theory’ of
Bentham and Austin was effectively replaced by the ‘rule of recognition’ of Hart’s analysis
(in essence, that the identification of law was to be made upon the observance of the
behaviour of legal officials and how they identified legal rules in their society) as the test for
the identification of law.6

Another influential Positivist thinker is Hans Kelsen. Kelsen propounded what is known as a
‘pure theory of law.’ According to him, the law is a ‘normative science.’ Law does not
attempt to describe what actually occurs but only prescribes certain rules. The science of law
to Kelson is “the knowledge of the hierarchy of normative relations where all norms derive
their power from the ultimate norm called Grundnorm”.7 For Kelsen, the ‘basic norm’ gave
sense to normative statements such as ‘the law says X ought to be done.’ Kelsen was fond of
drawing parallels between his basic norm and religious faith. Although many persons do not
believe in God, those persons who do believe in God presuppose in their religious faith, the
basic norm that ‘God’s commandments ought to be obeyed.’ Similarly, those who have
‘faith’ or ‘belief’ in their own legal system's justified normativity presuppose a basic norm
that the constitution of that legal system ought to be obeyed. In other words, normativity, like
beauty, is in ‘the eye (or rather mind) of the beholder.’ Kelsen explained the foundational
significance of the basic norm to his pure theory of law in ‘Introduction to the Problems of
Legal Theory (1934)’: the pure theory of law works with this basic norm as a hypothetical
foundation. Given the presupposition that the basic norm is valid, the legal system resting on
it is also valid. The basic norm confers on the act of the first legislator – and thus on all
other acts of the legal system resting on this first act – the sense of ‘ought’. . .rooted in the
basic norm, ultimately is the normative import of all the material facts consisting the legal
system.

5 JOHN AUSTIN, AUSTIN: THE PROVINCE OF JURISPRUDENCE DETERMINED (Wilfrid E. Rumble ed., 1995).
6 H. L. A. HART, THE CONCEPT OF LAW (1961).
7 HANS KELSEN ET AL., GENERAL THEORY OF LAW AND STATE (1990).

Page | 17
(c) Historical School of Law: This school considers law in a direct relationship with the life
of the community. The central question that this approach raises is: as to how did law
evolve? The historical approach believes that law evolved, as did language, by slow process
and law, like language, is a peculiar product of the nation’s genius. The historical approach
rejects Austin’s conception of law as the command of sovereign and state that “the source of
law is not the command of the sovereign, not even the habits of the community but the
instinctive sense of right possessed by every race.” The real source of law lies deep in the
mind of men. The most important and influential jurist of historical school is Friedrich Carl
von Savigny. His most important contribution to the understanding of the law was his theory
that the nature of any particular system of law was a reflection of the spirit of the people who
evolved it. He called it Volkgeist. Savigny’s theory of law can be summarized as follows:
(i) That law is a matter of unconscious and organic growth. Therefore, the law is
found and not made.
(ii) Law is not universal in its nature. Like language, it varies with people and age.
(iii) Custom not only precedes legislation, but it is superior to it. Law should always
conform to the popular consciousness.
(iv) The legislation is the last stage of lawmaking, and, therefore, lawyers or jurists are
more important than the legislators.
(d) Sociological School of Law: This approach to defining law maintains that achieving a
proper understanding of the concept of law requires a sociological analysis rooted in the
social conditions in which the law and legal ideas are fashioned and employed. Such a
sociological account of law usually rests on three closely related claims: that we cannot truly
grasp the meaning of law except as a ‘social phenomenon,’ that an analysis of legal concepts
provides only a partial explanation of ‘law in action’, and that law is merely one form of
social control.8 Leon Duguit, Ihering, Eugene Ehrlich, and Roscoe Pond are the major
proponents of this school.
Duguit defines law as “essentially and exclusively as a social fact.” 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 three essentials to this definition. First, in this definition, the law is
treated as only one means of social control. Second, the law is to serve a social purpose.
Third, it is coercive in character. Roscoe Pound analyzed the term “law” in the 20th-century
background as predominantly an instrument of social engineering in which conflicting pulls
of political philosophy, economic interests, and ethical values constantly struggled for
recognition against the backdrop of history, tradition, and legal technique. Pound thinks of
law as a social institution to satisfy social wants – the claims and demands and expectations
involved in the existence of civilised society by giving effect to as must as may be satisfied
or such claims given effect by ordering of human conduct through politically organised
society.
(e) Realist School of Law: Realists define law in terms of the judicial process. According to
Holmes, “Law is a statement of the circumstances in which public force will be brought to
bear upon through courts.” According to Cardozo, “A principle or rule of conduct so
established as to justify and prediction with reasonable certainty that the courts will enforce

8 RAYMOND. WACKS, UNDERSTANDING JURISPRUDENCE : AN INTRODUCTION TO LEGAL THEORY (2005).

Page | 18
it if its authority is challenged, is a principle or the rule of law.” From the above definitions,
it follows that law is nothing but a mechanism of regulating the human conduct in society so
that the harmonious co-operation of its members' increases and thereby avoid the ruin by
coordinating the divergent conflicting interests of individuals and of society, which would, in
its turn, enhance the potentialities and viability of the society as a whole.
To summarise, the following are the main characteristics of law and a definition to become a
universal one, must incorporate all these elements:
(a) Law pre-supposes a State.
(b) The State makes or authorizes to make, or recognizes or sanctions rules which are
called law.
(c) For the rules to be effective, there are sanctions behind them.
(d) These rules (called laws) are made to serve some purpose. The purpose may be
social, or it may be merely to serve some personal ends of a despot.
Separate rules and principles are known as “laws.” Such laws may be mandatory, prohibitive,
or permissive. A mandatory law calls for an affirmative act, as in the case of law requiring
the payment of taxes. A prohibitive law requires adverse conduct, as in the law prohibiting
carrying a concealed weapon or running a lottery. A permissive law neither requires nor
forbids action, but allows certain conduct on the part of an individual if he desires to act.
Laws are made effective:
(a) by requiring damages to be paid for an injury due to disobedience;
(b) by requiring one, in some instances, to complete an obligation, he has failed to
perform;
(c) by preventing disobedience; or
(d) by administering some form of punishment.
The law, and the system through which it operates, has developed over many centuries into
the present combination of statutes, judicial decisions, customs, and conventions. By
examining the sources from which we derive our law and legal system, we gain some insight
into the particular characteristics of our law. To maintain peace and order in society, the State
formulates certain rules of conduct to be followed by the people. These rules of conduct are
called “laws.”
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: Principal/Primary
sources of Indian Law, and Secondary sources of Indian Law.
Principal/Primary Sources of Indian Law: The principal sources of Indian law are:
(i) Customs or Customary Law.
(ii) Judicial Decisions or Precedents.
(iii) Statutes or Legislation.
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

Page | 19
growth of legislation and precedent. A study of the ancient law shows that in primitive
society, people's lives were regulated by customs, which developed spontaneously according
to circumstances. It was felt that a particular way of doing things was more convenient than
others. When the same thing was done again and again in a particular way, it assumed the
form of custom.
Customs have played an important role in molding the ancient Hindu Law. Most of the laws
given in Smritis and the Commentaries had its origin in customs. The Smritis have strongly
recommended that the customs should be followed and recognised. Customs worked as a re-
orienting force in Hindu Law. Custom as a source of law has a very inferior place in the
Mohammedan Law. However, customs which were not expressly disapproved by the Prophet
were good laws. It was on this basis of such customs that Sunnis interpreted many provisions
of the law, especially the law of divorce and inheritance. In India, many sects of
Mohammedans are governed by local customary law.
Classification of Customs: The customs may be divided into two classes: Customs without
sanction, and Customs having sanction. Customs without sanction are those customs which
are non-obligatory and are observed due to the pressure of public opinion. These are called
“positive morality.” Customs having sanction are those customs which are enforced by the
State.
Requisites of a Valid Custom: A custom will be valid at law and will have a binding force
only if it fulfills the following essential conditions, namely:
(a) Immemorial (Antiquity): A custom to be valid must be proved to be
immemorial; it must be ancient. According to Blackstone, “A custom, in order
that it may be legal and binding must have been used so long that the memory of
man runs not to the contrary, so that, if anyone can show the beginning of it, it is
no good custom.” English Law places a limit to legal memory to reach back to the
year of accession of Richard I in 1189 as enough to constitute a custom's
antiquity. In India, the English Law regarding legal memory is not applied. All that
is required to be proved is that the alleged custom is ancient.
(b) Certainty: The custom must be certain and definite, and must not be vague and
ambiguous.
(c) Reasonableness: A custom must be reasonable. It must be useful and convenient
for society. A custom is unreasonable if it is opposed to the principles of justice,
equity, and good conscience.
(d) 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.
(e) Conformity with the law and public morality: A custom must not be opposed to
morality or public policy, nor must it conflict with statute law. If a custom is
expressly forbidden by legislation and abrogated by a statute, it is inapplicable.
(f) Unanimity of opinion: The custom must be general or universal. If a practice is
left to individual choice, it cannot be termed as custom.
(g) Peaceable enjoyment: The custom must have been enjoyed peaceably without
any dispute in a law court or otherwise.

Page | 20
 (h) Consistency: There must be consistency among the customs. Customs must not
come into conflict with the other established customs.
Judicial 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 lay down some new rules or principles
are called judicial precedents. Judicial precedents are an important source of law. They have
enjoyed high authority at all times and in all countries. The rule that a court decision
becomes a precedent to be followed in similar cases is known as doctrine of stare decisis.
The reason why a precedent is recognised is that a judicial decision is presumed to be correct.
The practice of following precedents creates confidence in the minds of the litigants. Law
becomes certain and known and that in itself is a great advantage. Administration of justice
becomes equitable and fair.
General Principles of Doctrine of Precedents: The first rule is that each court lower in the
hierarchy is absolutely bound by the courts' decisions above it. The second rule is that, in
general, higher courts are bound by their own decisions. This is a unique feature of English
law.The Supreme Court is the highest Court, and its decisions are binding on all courts and
other judicial tribunals of the country. Article 141 of the Constitution clarifies that the law
declared by the Supreme Court shall be binding on all courts within India's territory. The
words “law declared” includes an obiter dictum provided it is upon a point raised and argued
(Bimladevi v. Chaturvedi, AIR 1953 All. 613). However, it does not mean that every
statement in a judgment of the Supreme Court has the binding effect. Only the statement of
the ratio of the decision is having the binding force.
Kinds of Precedents: Precedents may be classified as (a) declaratory and original, (b)
persuasive, (c) absolutely authoritative, and (d) conditionally authoritative.
(a) Declaratory and original precedents: According to Salmond, a declaratory
precedent is one which is merely the application of an already existing the rule of
law. An original precedent is one that creates and applies a new rule of law. In the
case of a declaratory precedent, the rule is applied because it is already a law. In the
case of an original precedent, it is the law for the future because it is now applied. A
declaratory precedent is as good a source of law as an original precedent. The legal
authority of both is exactly the same.
(b) Persuasive precedents: A persuasive precedent is one which the judges are not
obliged to follow but which they will take into consideration and to which they will
attach great weight as it seems to them to deserve. A persuasive precedent,
therefore, is not a legal source of law; but is regarded as a historical source of law.
Thus, in India, the decisions of one High Court are only persuasive precedents in the
other High Courts.
(c) Absolutely authoritative precedents: An authoritative precedent is one which
judges must follow whether they approve of it or not. Its binding force is absolute,
and the judge’s discretion is altogether excluded as he must follow it. Every court in
India is absolutely bound by the decisions of courts superior to itself. The
subordinate courts are bound to follow the decisions of the High Court to which
they are subordinate. A single judge of a High Court is bound by the decision of a

Page | 21
 bench of two or more judges. All courts are absolutely bound by decisions of the
Supreme Court.
(d) Conditionally authoritative precedents: A conditionally authoritative precedent is
one which, though ordinarily binding on the court before which it is cited, is liable
to be disregarded in certain circumstances. The court is entitled to disregard a
decision if it is a wrong one, i.e., contrary to law and reason. In India, for instance,
the decision of a single Judge of the High Court is absolutely authoritative so far as
subordinate judiciary is concerned, but it is only conditionally authoritative when
cited before a Division Bench of the same High Court.
Doctrine of Stare Decisis: The doctrine of stare decisis means “adhere to the decision and
do not unsettle things which are established.” It is a useful doctrine intended to bring about
certainty and uniformity in the law. 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, this principle means that “like cases should be
decided alike”. 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 inevitable doctrine 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. The proposition of law which is necessary for the
decision or could be extracted from the decision constitutes the ratio. The concrete decision
is binding between the parties to it. The abstract ratio decidendi alone has the force of law as
regards the world at large. In other words, the authority of a decision as a precedent lies in its
ratio decidendi. It is the ratio decidendi or the general principle which has the binding effect
as a precedent, and not the obiter dictum. However, the determination or separation of ratio
decidendi from obiter dictum is not so easy. It is for the judge to determine the ratio
decidendi and to apply it on the case to be decided.
Obiter Dicta: The literal meaning of this Latin expression is “said by the way”. The
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 the particular
case and have the force of persuasive precedents only. The judges are not bound to follow
them although they can take advantage of them. They sometimes help for the reforms of law.
Statutes or Legislation: Legislation is that source of law which consists in the declaration or
promulgation of legal rules by an authority 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). Salmond prefers to call it as “enacted law”. Statute
law or statutory law is what is created by legislation, for example, Acts of Parliament or of
State Legislature. Legislation is either supreme or subordinate (delegated).
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 repelled, 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

Page | 22
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. The executive, whose main
function is to enforce the law, is given in some cases the power to make rules. Such
subordinate legislation is known as executive or delegated legislation. Municipal bodies
enjoy by delegation from the legislature, a limited power of making regulations or bye-laws
for the area under their jurisdiction. Sometimes, the State allows autonomous bodies like
universities to make bye-laws which are recognised and enforced by courts of law.
Secondary Source of Indian Law: Justice, Equity and Good Conscience: The concept of
“justice, equity and good conscience” was introduced by Impey’s Regulations of 1781. In
personal law disputes, the courts are required to apply the personal law of the defendant if the
point at issue is not covered by any statute or custom. In the absence of any rule of a statutory
law or custom or personal law, the Indian courts apply to the decision of a case what is
known as “justice, equity and good conscience”, which may mean the rules of English Law
in so far as they are applicable to Indian society and circumstances.
Significance and Relevance to Modern Civilized Society: Law is not static. As
circumstances and conditions in a society change, laws are also changed to fit the
requirements of the society. At any given point of time the prevailing law of a society must
be in conformity with the general statements, customs and aspirations of its people.
The object of law is order which in turn provides hope of security for the future. Law is
expected to provide socio-economic justice and remove the existing imbalances in the socio-
economic structure and to play special role in the task of achieving the various socio-
economic goals enshrined in our Constitution. It has to serve as a vehicle of social change
and as a harbinger of social justice.
Law Reforms: Change is the law of nature. This fundamental rule is followed in every
aspect of human life. Law or legal reform is this process of examining the existing laws and
amending and reforming the same as per the developing and contemporary needs of the
global community law reforms are often conducted by various governmental agencies
established for this purpose. For instance in India the Law Commission of India is the apex
executive body established primarily responsible for working on law reforms. Its
membership primarily comprises legal experts, who are entrusted a mandate by the
Government.

Classification of Laws
Civil v. Criminal Law: Civil law deals with the disputes between individuals, organizations,
or between the two, in which compensation is awarded to the victim. The object of civil law
is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not
punished; he only suffers so much harm as is necessary to make good the wrong he has done.
The person who has suffered gets a definite benefit from the law, or at least he avoids a loss.
Criminal law is the body of law that deals with crime and the legal punishment of criminal
offenses. In Criminal Law the main object of the law is to punish the wrongdoer; to give him
and others a strong inducement not to commit same or similar crimes, to reform him if

Page | 23
possible and perhaps to satisfy the public sense that wrongdoing ought to meet with
retribution.
In civil law the cases are filed by the private party, where as in criminal law the cases are
filed by the government because any offence though committed against a particular person is
considered as a violation of the criminal law and hence an offence against the state.
The standard of proof in both the set of laws is also different. Where on one hand, in civil
law the principle applied to determine the standard of evidence is ‘Preponderance of
evidence’ i.e. the claimant must produce evidence beyond the balance of probabilities. On the
other hand in criminal law the guilt of the accused needs to be proved beyond a reasonable
doubt. Similarly the natures of punishment in both the cases are also different. In a civil
matter, punishment is usually in the form of compensation i.e. monetary relief for the injuries
or damages, or an injunction in nuisance. In a criminal matter, a guilty defendant is subject to
custodial imprisonment or non-custodial punishment fines or community service. In
exceptional cases, the death penalty may also be awarded.
There are separate court structures for civil and criminal matters which have been explained
in details in the subsequent chapters.
Territorial v. Personal Laws: The people of India belong to different religions and faiths.
They are governed by different sets of personal laws in respect of matters relating to family
affairs, i.e., marriage, divorce, succession, etc. Personal law applies to those who profess a
particular religion. Other than personal laws based on religion, there are also various
customary rules that apply to areas of marriage, divorce and family matters.
India has two systems of law, one territorial and one personal. For example, the Special
Marriage Act applies to all people in the territory of India. The fact that some persons or
categories of persons are excluded from the provisions of the Act does not change its nature
to personal. On the other hand, the Hindu Succession Act applies to Hindus, and is therefore
personal. The fact that it is also applicable in the territory of India does not make it territorial.
Procedural v. Substantive Laws: Procedural Laws deals with the rules and regulations that
govern the procedures of civil, criminal and administrative courts. The basic purpose of these
laws is to ensure that the principles of due process and fundamental justice are followed in all
the cases which is brought before a court. In particular these laws lay down the procedures
which are to be followed once a case reaches the court docket. From the manner in which
parties are informed to the steps that should be followed in examination of evidences to the
presentation of oral arguments till the time the final decision if delivered and executed, these
laws cover and govern each and every intricate details of court procedures. Procedural laws
would thus include within its ambit various laws on civil and criminal procedures.
Substantive Laws refers to the written or statutory law which governs the relationship
between people, or between people and the state. It defines the rights, duties, obligations and
powers of people. It lays down a rule of conduct for the people. Substantive law is the
statutory, or written law, that defines rights and duties, such as crimes and punishments (in
the criminal law), civil rights and responsibilities in civil law. It is codified in legislated
statutes or can be enacted through the initiative process. Thus substantive law would cover

Page | 24
the law of contracts, aviation law, space laws, international laws, corporate laws, family
laws, consumer protection laws, etc.
When there is an ongoing trial, substantive law is the branch of the legal industry which will
define the crimes and punishments to which the accused will be subjected. It’s also the
branch of law which defines the rights and responsibilities of a civilian.
Remedies under Law: Any person who’s right is violated or who has an apprehension that
his right may be violated can approach the court to protect his right or to prevent its violation
or for remedy provided under law for its violation.
Indian Constitution: Constitution provides following kinds of remedial measures for
protection or enforcement of violated of fundamental rights. They are:
 Writ of Habeas Corpus,
 Writ of Quo Warranto,
 Writ of Mandamus,
 Writ of Certiorari,
 Writ of Prohibition.

Other Remedies under Civil Law

Damages: Every breach of contract upsets many settled expectations of the injured party.
Some of such expectations may be hey long drawn and endless, but a line must be drawn
somewhere for ascertainment of liability. An attempt to draw a line was made in 1854 by
Alderson B in Hadley vs. Baxendale in 1854. This decision laid down two rules regarding
nature of damages:
General damages: they are those which arise naturally in the usual course of things from the
breach itself. The defendant is held liable for all the foreseeable consequences of his breach.
The basis of this rule is that everyone, as a reasonable man, is expected to know the loss
which would accrue to the other party from a breach, in the ordinary course.
Special damages: They are awarded for loss which arises on account of the unusual
circumstances affecting the plaintiff. They are recoverable only of the unusual circumstances
are known to the defendant so that the possibility of special loss is in contemplation of both
the parties. Thus it talks about knowledge of special circumstances leading to the possibility
of some extra-ordinary loss. So, the parties basing on kind of facts and circumstances of each
case can claim damages.
Maintenance: If any person who is under an obligation, neglected or refused to maintain
their dependent wives, children and parents, the wife and children and parents are entitled to
claim maintenance against the husband, father and sons respectively. The remedy for
maintenance is available under civil law and criminal law by way of S.125 Cr.P.C and
Protection of women from Domestic Violence Act, 2005.
Mesne profits: If a person in wrongful possession of property received any benefits or
profits out of such property is under an obligation to return the same to lawful owner with

Page | 25
interest and in the event failure to repay a suit for Mesne profits can be filed. However, it
shall not include profits due to improvements made by the person in wrongful possession.
Partition: A Coparcener of Joint Hindu family can seek allotment of share at any time by
filing a suit for partition. . Earlier, only males acquired an interest in the coparcenary
properties as coparceners. By virtue of a recent amendment to the Hindu Succession Act, the
daughter of a coparcener has been given equal share as that of a son. As such, with effect
from 09.09.2005, the daughter of a coparcener shall, by birth, become a coparcener in her
own right and in the same manner as the son and will have the same rights and liabilities in
the coparcenary property like a son and as such she can also file suit for partition.

 Grant of succession certificate.

Remedies under Criminal Law: Indian Penal code and other penal laws provide followings
kinds of remedial measures for violation of duties prescribed under them. It is also known as
punishment.

 Death
 Imprisonment for life
 Imprisonment, which is of two descriptions, namely:—
o Rigorous, that is, with hard labour;
o Simple;
 Forfeiture of property;
 Fine.
 Court can also award compensation.
Remedies Available with an aggrieved Consumer: Consumer courts are empowered to
grant one or more of the following reliefs for the deficit services or goods by sellers:-

 Repair of defective goods.

 Replacement of defective goods.
 Refund of price paid for the defective goods or service.
 Removal of deficiency in service.
 Refund of extra money charge.
 Withdrawal of goods hazardous to life and safety.
 Compensation for the loss or injury suffered by the consumer due to negligence of the
opposite party.
 Adequate cost of filing and pursuing the complaint.
 Grant of punitive damages.

Page | 26
Classification of Global Legal System: There are generally considered to be five legal
systems in the world today: civil law, common law, customary law, religious law, and mixed
legal systems.
Civil law systems have their origin in the Roman legal tradition. Civil systems vary widely,
both in procedure and substantive law, so conducting research on a particular nation's civil
law system should include looking at that nation's specific system of law, but they do have
some trademark characteristics. Nations with civil law systems have comprehensive,
frequently updated legal codes. Most importantly, case law is a secondary source in these
jurisdictions. France and Germany are two examples of countries with a civil law system.
Common law systems, while they often have statutes, rely more on precedent, judicial
decisions that have already been made. Common law systems are adversarial, rather than
investigatory, with the judge moderating between two opposing parties. The legal system in
the United States is a common law system (with the exception of Louisiana, which has a mix
of civil and common law).
The application of common law has been overarching in the Indian context; it has been
enshrined in the Indian legal system over the space of two centuries by the English to the
point that one can’t allocate an individual identity to Indian jurisprudence. Thus it can be said
that common law has been applicable here though in a different format than that of England
as the needs and demands of the Indian society were different from that of the English. It is
to be found out that much of the law compiled in codes we have today were primarily
derived from the Common Law principles. The basic statutes governing civil and criminal
justice are the Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal
Procedure, 1973 and the Code of Civil Procedure, 1908. Another contribution to Indian legal
system by Common Law has been the adversarial system of trial. In this system the accused
is presumed to be innocent and the burden is on the prosecution to prove beyond reasonable
doubt that he is guilty. The system of Precedents derived from the Common Law too has
wide application within the Indian legal system, a precedent in Common Law parlance means
a previously decided case which establishes a rule or principle that may be utilized by the
court or a judicial body in deciding other cases that are similar in facts or issue.

Customary law systems are based on patterns of behavior (or customs) that have come to be
accepted as legal requirements or rules of conduct within a particular country. The laws of
customary legal systems are usually unwritten and are often dispensed by elders, passed
down through generations. As such, customary law research depends greatly on the use of
secondary sources. Oftentimes, customary law practices can be found in mixed legal system
jurisdictions, where they've combined with civil or common law.
Religious legal systems are systems where the law emanates from texts or traditions within a
given religious tradition. Many Islamic nations have legal systems based in whole or in part
on the Quran.
Mixed legal systems refer to legal systems where two or more of the above legal systems
work together.

Page | 27
Impact of Globalization on Legal Systems: Globalization as a Recent Trend: Globalization
of law is a recent trend in the development of law and legal systems throughout the world. It
is important to note the difference between the internationalization of law, which has been
around for quite some time, and the globalization of law. The prevalence of non-state actors,
as well as inter-governmental legal institutions has decreased the sovereignty of nation-states
more significantly than the use of international law. International law is based on the
sovereignty of nation-states, whereas the trend of globalization of law is to some degree
eroding that sovereignty by reducing the power of the nation-states to control the
development of the law. Almost all legal analysts acknowledge that there has been some
globalization of the law. They differ with respect to their characterization of that
development, and the normative conclusions that they draw from it. The central debate,
therefore, focuses on the extent to which the interplay of private and public forces is
harmonizing legal thinking and legal behavior.9

Globalization is reshaping the fixed and firm boundary between domestic and international
spheres and changing our conceptions of the proper domain of domestic and international
politics and law. In reformulating the entrenched disciplinary assumptions underlying these
conceptual definitions of the national and the international, we necessarily move the concept
of sovereignty to the foreground when analyzing the relationship between globalization and
law.
There is no doubt that the process of globalization is transforming traditional conceptions and
constructions of sovereignty; the conventional image of a sovereignty associated with
exclusive territorial jurisdiction is no longer theoretically or empirically serviceable in the
face of the internationalization of economic and social activity. International law, like
international relations, relies on a political theory of sovereignty to buttress its conceptual
framework.

9 LAW AND GLOBALIZATION, http://www.uiowa.edu/ifdebook/issues/globalization/readingtable/law.shtml

Page | 28
 MODULE - II
CONSTITUTIONAL LAW
AND ADMINISTRATIVE
LAW

Page | 29
Page | 30
 MODULE II – CONSTITUTIONAL LAW AND ADMINISTRATIVE
LAW
Constitutional and administrative laws are the areas of law which establish and regulate the
institutions of government within states. They also encompass the internal governance of
supranational legal orders. They are increasingly concerned with the relationship between
internal and external legal norms and the interaction between multiple layers of government
within and beyond states.
The Constitution is the groundnorm when it comes to legislations. It determines the powers
of the different wings of the government and protects the citizens against any violation of
their rights. The courts interpret the Constitution, resulting in the execution of the aforesaid
functions of the Constitution. It also unbridled powers in the legislature, thereby preventing it
from delegating essential legislative powers arbitrarily. The validity of very executive action
is also seen in reference to power given to it by the legislation. Constitutional law enjoys the
status of prime moderator monitoring the three branches of the government, i.e. Legislature,
Executive and Judiciary, and in turn installs a yardstick upon which the extent of rules and
policies made can be measured.
Administrative law is that law which deals with the relationship between a country’s citizens
with the government. It determines the organizational and power structure of the
administration and quasi-judicial bodies to enforce the rule of law. Administrative law is
primarily concerned with governmental and administrative actions and process and puts in a
control mechanism to prevent administrative agencies from spiraling out of control. It is not
codified law and rather has developed over time. It ensures that the authorities don’t misuse
or abuse the powers vested in them.
Hence, it is important to study the Constitutional Law and Administrative Law to understand
the function of government, various public/governmental institutions.

CONSTITUTIONAL LAW
The constitution of any country is the most important piece of legislation. It is a legal
document having a special legal sanctity, which sets out the framework and the principal
functions of the organs of the government of a State, and declares the principles governing
the operation of those organs. It determines laws and rules, and describes the forms of the
government, the relationship between the citizens and the various structures of the
government.
Almost all democratic governments now have written constitution. A Nation’s Constitution is
called legal heir of its past and testator of its future. It lays down the basic structure of the
government according to which the people are to be governed. It also sets out the rights and
duties of citizens, and also regulates the relationship of State and Citizens.
The Constitution of India is considered as the supreme law of the land (supreme Lex loci). It
frames fundamental political principles, procedures, practices, rights, powers, and duties of
the government. It imparts constitutional supremacy and not parliamentary supremacy, as it

Page | 31
is not created by the Parliament but, by the Constituent Assembly, and adopted by its people,
with a declaration in its Preamble.
Drafting of the Indian Constitution: Even though many scholars start the journey of Indian
constitution from 1935, the fact remains that its seeds were sowed with the arrival of British
in India in 1600. Evolution of Constitution of India can be discussed in four phases which are
as under: -

 I Phase - from 1600 to 1773 (Arrival of the East India Company, Establishment of
Presidencies in Madras, Bombay and Calcutta, Appointment of Governors, Toning up
of administration of justice, Introduction of English legal system etc)
 II Phase- from 1773 to 1857 (Regulating Act 1773, Act of Settlement 1781,
Establishment of Supreme Courts at Calcutta, Bombay & Madras, Role of Privy
Council, Introduction of Adalat System, streamlining of local self-government,
Appointment of Law Commission, Codification of laws, and Governor General in
Council exercising Legislative and Executive functions)
 III Phase- From 1857 to 1946 ( Indian High Courts Act 1861, Founding of Indian
National Congress 1n 1885, Indian Councils Act 1892, 1909 - Government of India
Act 1915- Dyarchy- , -Government of India Act 1919-Demand for responsible
Government-The Nehru Report 1928 on Constitutional Reforms- Poorna Swaraj day
26th January 1930-Simon Commission Report 1930 -I Round Table conference
1930-31-Gandhi-Irwin Pact 1931- II Round Table Conference 1931- Ramsay
MacDonald’s Communal Settlement,1931-Poona Pact 1932-III Round Table
Conference 1933- Government of India Act 1935- Cripps Offer & Quit India
Movement 1942- Cabinet Mission Plan 1946-Objective Resolution, 13 December
1946)
 IV Phase- From 1946 to 1949 (Formation of Provincial Government 1946, -
Constituent Assembly 1946 –Objective Resolution to determine constitution of free
India-Non-cooperation of Muslim League- Mountbatten Plan & Partition of India-
Indian Independence Act 1947-Drafting of Constitution- Drafting Committee +21
other Committees)
Journey from Government of India Act 1935 to the Constituent Assembly Debates:
During 1930s Indian freedom struggle had reached its epitome. The spirit of fighting and
driving away the British had penetrated each and every strata of the society and its members
and as far as the British were concerned, they knew that it was getting day by day to suppress
the freedom fighters. British also were well aware that they needed the support of Indians in
facing and fighting in one of the most destructive war ever fought in the world history i.e. the
World War II.
Amongst the plethora of demands put forth by the freedom fighters, greater participation in
the government was often considered as the most significant. During this time the political
relations between the British and the Indians was governed by the Government of India Act
1919 which had established the concept of ‘Provisional Dyarchy’. According to this there
were certain areas of government which were placed in the hands of independent ministers.
But the final decision-making power would still remain in the hands of the British.

Page | 32
Gradually even this arrangement was strongly opposed by the Indians and consequently in
order to cater to the increasingly violent demands on more autonomy in these areas the
aforesaid was revised and in its place the Government of India Act 1935 was enacted. The
provisions of the Government of India Act 1935, though never implemented fully, had a
great impact on the Constitution of India. Many key features of the constitution are directly
taken from this Act. It is really a lengthy and detailed document having 321 sections and 10
schedules. The majority of the today's constitution has drawn from this.
Salient Features of the Government of India Act: Provincial Autonomy: The system of
Dyarchy was abolished and with it the system of revenue and executive council also had to
bid adieu. The council of ministers primarily administered all the provincial subjects barring
few crucial exceptions like Law and Order for which the Head Government was responsible.
These ministers were chosen from the elected members of the provincial legislature and were
collectively responsible to it.
All India Federation States: The enactment also proposed setting up of an All India
Federation which would be primarily comprised of the British India and the Princely States.
These units were further sub-categorized into eleven governor’s provinces, six chief
commissioner’s provinces and all those princely states that had consented to become a part of
the same. Such an accession was supposed to be completely voluntary and was to be
executed through an Instrument of Accession in favour of the Crown.
Introduction of Dyarchy at the Central Level: The federal subjects were further categorized
into Reserved subjects and Transferred Subjects. Where the former included crucial subjects
like Defence, Ecclesiastical Affairs, External Relations and Tribal Affairs, the remaining
areas of governance formed a part of the latter. The Reserved Subjects were supposed to be
administered by the Governor General along with the aid of three executive counselors.
Transferred subjects were required to be administered by the Governor General with the aid
of Council of Ministers.
Bicameral Legislature: It also established a federal bicameral legislature consisting of a
Upper House i.e. Council of States and a Lower House i.e. the Federal Assembly. The
strength of the Upper house was fixed at 260 out of which 104 members were nominated by
the rulers to present the Indian states. 6 members were to be nominated by the governor-
general whereas the remaining members were required to be elected. The lower house
comprised of 375 members out of which 250 represented British India and 125 represented
the Indian States. The members of the British India were indirectly elected enjoying a tenure
of five years unless the house was dissolved earlier by the Governor General. Six provinces
were given the Bicameral System of Legislature.
Establishment of a Federal Court: Primarily function of this court was to adjudicate inter-
state disputes and matters concerning the interpretation of the Constitution. However the
Privy Council remained the final court of appeal.

 Division of law making powers in to three lists i.e., Federal List, Provincial List and
Concurrent List with residuary powers vested in the Governor General
 Establishment of an Advisory Body in place of the Indian Council
 Separation of Burma from India w.e.f. April 1937

Page | 33
Constituent Assembly: The Constituent Assembly of India consisted of indirectly elected
representatives and was established for the prime purpose of framing the constitution of
India. The assembly remained in session for close to three years and its functioned in the
capacity of the first parliament of India after India’s independence in 1947. Though the
assembly consisted of people from the major walks of life however nevertheless majority of
the members in the assembly belonged to the biggest political party i.e. Congress with little
representation to other minority groups like Muslims or Sikhs. The Assembly had close to
eleven sessions, before the final draft of our constitution was prepared. Dr. Sachchidananda
Sinha was the first President (temporary chairman) of the Constituent Assembly. Dr.
Rajendra Prasad then became the President of the Constituent Assembly and later became the
first President of India. The hope behind the Assembly was expressed by Jawaharlal Nehru
as under:
"The first task of this Assembly is to free India through a new constitution, to feed the
starving people, and to cloth the naked masses, and to give every Indian the fullest
opportunity to develop himself according to his capacity."
Salient Features of the Indian Constitution: The following are the key features of the
Indian Constitution:

 Longest written constitution (Originally 395 Articles & 8 Schedules)

 Sovereign, Socialist ,Secular & Democratic Republic
 Parliamentary System of Government
 Partly Federal and partly Unitary
 Fundamental Rights
 Directive Principles of State Policy
 Fundamental Duties
 Independent Judiciary
 Emergency Provisions
 Partly Rigid and Partly Flexible etc
Supremacy of the Constitution: The Constitution is the supreme law of the land. All the
other legislations, authorities, every power be it legislature, executive or judiciary derives its
authority and validity from the constitution.
Written Constitution: Federal Constitution should be written. The foundation of a federal
state is complicated contracts and it will practically be impossible to maintain the supremacy
of the constitution unless the terms of the constitution have been reduced into writing. Indian
Constitution is one of the lengthiest and the largest constitution of the world. While US
constitution originally consisted of seven articles, Canadian constitution consisted of one
hundred and forty seven articles; Indian Constitution initially consisted of 395 Articles with
twenty-two parts and nine schedules. The composition of the extraordinary document will be
discussed at length in the following sections.
Parliamentary Form of Government: The constitution of India established a parliamentary
form of government both at the Centre as well as at the state level. In this respects the
drafters have adopted the British model in toto as India was accustomed to that form of the

Page | 34
government. The essence of a Parliamentary form of government is its responsibility to the
legislature. The President is the constitutional head but the real executive power vests with
the Prime Ministers and his Council of Ministers who are collectively responsible to the Lok
Sabha. The members are elected for a period of five years.
A Unique Blend of Rigidity and Flexibility: A natural corollary of a written constitution is
its rigidity. The constitution is supreme law of the land and therefore it should definitely not
be amendable as per the whims and fancies of the government. A rigid constitution is one
which requires a special method of amendment of any of its provisions. In a flexible
constitution provisions could be amended through ordinary legislative process. A written
constitution is usually said to be flexible. It is only a few provisions that require the consent
of half of the state legislature. The remaining provisions of the constitution can be amended
by a special majority of the Parliament.
Fundamental rights and fundamental duties: The Indian constitution provides an elaborate
list of Fundamental Rights to the citizens of India, which cannot be taken away or abridged
by any law made by the states (Article 12–35). Similarly, the constitution also provides a list
of 11 duties of the citizens, known as the Fundamental Duties (Article 51A).
Directive principles of state policy: The Indian constitution mentions certain Directive
Principles of State Policy (Article 36–51) which that government has to keep in mind while
formulating new policy.
Authority of the Court: In a federal state the legal supremacy of the constitution is essential
for the existence of the federal system. The very nature of the federal state is division of
powers between the Central and the State government under the framework of the
constitution. The judiciary has the final authority to interpret and guard the provisions of the
constitution.
Independent judiciary: The constitution provides an independent judiciary (Article 76)
which ensures that the government is carried on in accordance with the provisions of the
constitution and acts as a guardian of the liberties and fundamental rights of the citizens.
Emergency powers: The constitution vests extraordinary powers, known as Emergency
Powers in the President during emergencies out of armed rebellion or external aggression or
due to failure of constitutional machinery in the state (Article 352–360).

Page | 35
Preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVEREIGN SOCIALIST 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 twenty-sixth day of November,
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.

The preamble to the Constitution of India is a brief introductory statement that sets out the
guiding purpose and principles of the document. The Preamble to a Constitution embodies
the fundamental values and the philosophy, on which the Constitution is based, and the aims
and objectives, which the founding fathers of the Constitution enjoined the polity to strive to
achieve. The Preamble of the Constitution of India is a unique piece of document. It
embodies the most important values and objectives of our constitution. It is the soul and spirit
of the constitution.
The Preamble to our Constitution serves, two purposes:
 It indicates the source from which the constitution derives its authority
 It also states the objects which the constitution seeks to establish and promote

Crucial principles imbibed in the Preamble:

Sovereign: The word sovereign means supreme or independent. India is internally and
externally sovereign - externally free from the control of any foreign power and internally, it
has a free government which is directly elected by the people and makes laws that govern the
people. The word Sovereign emphasizes on the belief that the people of India have a supreme
right to take a decision over both internal and external affairs. It also makes it clear that no
external power can dictate the government of India.
Socialist: It implies social and economic equality. Social equality in this context means the
absence of discrimination on the grounds only of caste, color, creed, sex, religion, or
language. The word Socialistic indicates that the government mainly aims at reducing the
inequalities among the people belonging to various sections of the society, by indeed
distributing the wealth equally among them.
Secular: It implies equality of all religions and religious tolerance. India therefore does not
have an official state religion. Secularism reiterates the belief of the government that all the
religions in the country are equal and there is no official religion in India.

Page | 36
Democratic: India is a democracy. The people of India elect their governments at all levels
(Union, State and local) by a system of universal adult suffrage.
Republic: A democratic republic is an entity in which the head of state is elected, directly or
indirectly, for a fixed tenure. The President of India is elected by an electoral college for a
term of five years. The post of the President of India is not hereditary. Every citizen of India
is eligible to become the President of the country. It reflects that the head of a state being an
elected one rather than a hereditary one.
Justice: The term Justice in the Preamble embraces three distinct forms: Social, economic
and political, secured through various provisions of the Fundamental and Directive
Principles.
Social justice in the Preamble means that the Constitution wants to create a more equitable
society based on equal social status. Economic justice means equitable distribution of wealth
among the individual members of the society so that wealth is not concentrated in few hands.
Political Justice means that all the citizens have equal right in political participation. Indian
Constitution provides for universal adult suffrage and equal value for each vote.
Liberty: Liberty implies absence of restraints or domination on the activities of an individual
such as freedom from slavery, serfdom, imprisonment, despotism etc. The Preamble provides
for liberty of thought, expression, belief, faith and worship.
Equality: Equality means absence of privileges or discrimination against any section of the
society. The Preamble provides for equality of status and opportunity to all the people of the
country. The Constitution strives to provide social, economic and political equality in the
country.
Fraternity: Fraternity means feeling of brotherhood. The Preamble seeks to promote
fraternity among the people assuring the dignity of the individual and the unity and integrity
of the nation.
Fundamental Rights: Every person by virtue of being a human is entitled to certain
inalienable and exclusive rights. They are inalienable and exclusive rights as their absence
would negate the very existence of human being and their presence guarantees the most basic
freedoms that would ensure peaceful and purposeful life.
The following are the fundamental rights expressly guaranteed under our constitution:

 Right to Equality (Articles 14-18)

 Right to Freedoms (Articles 19-22)
 Right against Exploitation (Articles 23-24)
 Right to Freedom of Religion (Articles 25-28)
 Cultural and Educational Rights (Articles 29-30)
 Right to Constitutional Remedies (Articles 32-35)
Right to Equality: Equality is one of the objectives of the Constitution as enshrined in the
Preamble in the form of equality of status and opportunity. Articles 14 to 18 guarantee their
implementation in different forms. The right to equality stands at forefront of success of

Page | 37
democratic life . In fact, in all modern constitutions it is the first fundamental right. The term
equality has many connotations. They are: Reasonable Classification, Protective
Discrimination, Compensatory Discrimination, Rule of law, Rule against Arbitrariness,
Principles of Natural Justice etc. All these tools ensure operation of equality in reality.
Protective discrimination: Article 14 of Constitution says all persons are entitled to equality
before law and equal protection of laws. and there shall be no discrimination on any grounds
whatsoever. However, equality doesn’t mean equality that is measured with scale. The rights
guaranteed by Articles 15 to 18 emanate from Article 14. Article 15 deals with prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth. It also permits State
to undertake certain beneficial measures to protect women and children under its Cluse (2),
and for advancement of Socially and Educationally Backward Classes, Scheduled Castes and
Scheduled Tribes under its Cluse (4). Clause (5) of Article 15 empowers the country to
make reservations with regard to admissions into educational institutions both privately run
and those that are aided or not aided by the government. From this rule only the minority run
institutions such as the Madarsas are exempted. Clause (6) is added to provide reservations
to economically weaker sections for admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of Article 30. The amendment aims to
provide reservation to those who do not fall in 15 (5) and 15(4) (effectively, SCs, STs and
OBCs).The EWS reservations are therefore to be provided to a maximum extent of 10%.
Article 16 deals with equality of opportunity in matters of public employment and makes
provision for reservation in favour of backward classes ,Scheduled Castes,Scheduled Tribes
and EWS( Maximum 10%) . Article 17 abolishes untouchability, and makes its practice an
offence by itself.Article 18 abolishes titles except in case of academic and military
distinctions.The Supreme Court in 1996 in the case of Balaji Raghavan v.Union of India,
declared that Bharta ratna and Padma awards do not fall within the meaning of titles but such
awards have to be given only to the deserving persons,Further it was also directed not use the
as either suffixes or prefixes by the awardees.
An analysis of the right to equality denotes that it imbibes in itself the concept of Rule of
Law, Test of Reasonable Classification, Rule against Arbitrariness, concept of Protective and
Compensatory Discrimination. The following is the test adopted by Supreme Court to
determine any measure taken by legislature or executive in the name of Test of reasonable
classification. The classification or discrimination on any ground is permissible if following
two conditions are satisfied:
 The classification must be founded upon an intelligible differentia (clear distinction)
which distinguishes person or things that are grouped together from other left out of
that group.
 The differentia must have a rational relation (Reasonable Nexus) to the object sought
to be achieved by the Act in question.
The classification may be founded on different bases namely geography, occupations,
persons, places etc., what is necessary is that there must be nexus between the basis of the
classification and the object of the act under consideration.

Page | 38
Concept of Arbitrariness: Equality encompasses fairness in state action. Therefore, every
action of state affecting legal or any rights of persons must be not arbitrary. In fact, equality
and arbitrariness are sworn enemies. Fairness in action is the theme of democracy wedded
with rule of law and arbitrariness is the realm of monarchy.
The Principles of Natural Justice: In India, the principles of natural justice are firmly
grounded in Article 14 & 21 of the Constitution. With the introduction of the concept of
substantive and procedural due process in Article 21, fairness, which is included in the
principles of natural justice, can be read into Article 21. The violation of the principles of
natural justice results in arbitrariness; therefore, violation of natural justice is a violation of
the equality clause of Article 14. (Discussed in detail later)
The Principles of Natural Justice is also one of the tools to ascertain absence of Arbitrariness.
The Principles of Natural Justice are:

 No man shall be condemned unheard (Based on the Latin maxim-Audi Alteram

Partem which means hear the other side - Rule of fair Hearing)
 Judge/Authority shall not have any bias -whether monetary, personal or subject
matter (Based on the Latin maxim-Nemo Judex Causa in - Rule against Bias)
 Every decision of state should be based on reasons (Speaking order/reasoned
decisions).
The above principles are to be followed by all the administrative and quasi- judicial
authorities while taking decisions to ensure that ‘Justice should not only be done but clearly
and manifestly should appear to be done’
Rule of Law: Rule of law refers to a system in which law is able to impose meaningful
restraints on the state and individual members of the ruling elite. Prof. A.V. Dicey developed
the concept . The rule of law contemplated the absence of wide powers in the hands of
governmental officials. & wherever there is discretion, there is room for arbitrariness. It
reflects notions of a government of laws, the supremacy of the law, and equality of all before
the law.
In fact this is the original idea of ancient philosophers like Aristotle who said “law should
govern’. Rule of law implies that every citizen is subject to the law. In order to conclude that
exist a rule of law in a country or society it must fulfill following three conditions:
 A uniform body of laws to regulate all human conduct in the State. In India we have a
uniform body of laws which governs our society and regulates all human conduct
within our country.
 A citizen should be able to approach courts to redress any grievance against the State
like any other private individual for violation of his rights. There shall not be any
prior permission of the state to sue it. This has also been provided in our Constitution
by A.300.
 The determination of disputes must be by regular courts manned by independent
judges. In India we have independent and integrated Judiciary with its own
administrative and regulatory mechanism. The appointment of Judges is also is made
in consultation with the Chief Justice of the High Court concerned, the Governor of

Page | 39
 the State and the Chief Justice of India. This method of appointment guarantees that
judges appointed to the High Court would be persons of ability, integrity &
independence.
A question has sometimes been asked as to what would happen if the Government–be it State
or Central–did not carry out the decisions of the Court. It denotes the legal principle that law
should govern a nation, and not arbitrary decisions by individual government officials.
Freedom of Speech and Expression: Justice Brandies and Holmes, in Whitney v. California
very firmly stated: Liberty is a means to end and vice versa. Framers of our constitution
believed that freedom to think as you will and to speak as you think is means indispensable
to the discovery and spread of political truth. It is the function of speech to free men from the
bondage of irrational fears. To justify suppression of free speech there must be reasonable
ground to fear that serious evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is imminent. Constitutional
framers are quiet conscious of right to Freedom of speech and expression importance in a
Democratic country governed by rule of law and as such crystallized this norm in A.19 of the
Constitution in variety of forms. They are:

 freedom of speech and expression

 assemble peacefully and without arms
 to form association or unions
 to move freely throughout the territory of India
 to reside and settle in any part of the territory of India
 to practice any profession, or to carry on any occupation, trade or business.
Right to Life and Personal Liberty: Article.20 to 24 of Constitution imposes certain
fundamental limitations on the state in order to deprive any person his right to life or liberty.
They are as follows:
 A man shall be punished only for such act or omission which is declared as an
offence as on the date of occurrence offence Article.20 (1).
 A person can be punished only once for an offence committed Article.20 (2).
 Person charged can’t be compelled to be a witness against himself Article.20 (3).
 The deprival of any person’s life or personal liberty shall be according to procedure
established by law (A.21).
 Any Person arrested shall be defended by lawyer of his choice. He must be informed
of his grounds of arrest Article.22 (1).
 A Person arrested must be produced before the nearest magistrate within a period of
twenty-four hours excluding time of journey. This rule is not applicable to preventive
detention laws Article.22 (2).
Right to Practice Religion of One’s Choice: Liberty of thought, expression, belief, faith and
worship is one of its feature, ideal and goal of our constitution. It means India is a secular
state from its inception though 42nd amendment introduced the word Secular in the Preamble
of the constitution. A.25, 26, 27 and 28 expressly deal with the rights of religion.

Page | 40
A.25 (1) entitles all persons equally to freedom of conscience and the right to freely profess,
practice and propagate religion. However, this is subject to public order, morality, health and
other provisions of part-III of the constitution.
A.26 guarantees authorizes citizen to establish religious institution of their subject to public
order, morality and health. They also have right to own and acquire movable and immovable
property and to administer such property in accordance with law.
A.27 prohibits any compulsion in the matter of the payment of any tax, the proceeds of which
are specifically appropriated for the promotion of any particular religion. A.28 (1) bars any
religious instructions being provided in any educational institution wholly maintained out of
state funds.
It is clear from A.25 that constitution wishes to address the evils of religion by imposing
restrictions on right to religion on the basis of public health, morality and fundamental rights.
Further, it also suggests that our secularism is not supportive in nature to any religion.
However, it interferes with the religion if offends public order, morality, health. Thus, in
India, the freedom of religion is guaranteed solely out of concern for the individual as an
aspect of the general scheme of his liberty. For the simple reason liberty without freedom of
religion is incomplete and meaningless.
Cultural and Educational rights: A.29 & 30 deal with this subject. A.29 protects the
language, script and culture of minorities and whereas under A.30 minorities have got the
right to establish and administer educational institutions of their choice A.30 (1) preserves
culture and language of minorities and ensures equal treatment between majority and
minority institutions.
Directive Principles of State Policy: The Directive Principles of State Policy contained in
Part IV, Articles 36-51 of the Indian constitution constitute the most interesting and
enchanting part of the constitution. The Directive Principles may be said to contain the
philosophy of the constitution. The idea of directives being included in the constitution was
borrowed from the constitution of Ireland. As the very term “Directives” indicate, the
Directive principles are broad directives given to the state in accordance with which the
legislative and executive powers of the state are to be exercised. As Nehru observed, the
governments will ignore the directives “Only at their own peril.” As India seeks to secure an
egalitarian society, the founding fathers were not satisfied with only political justice. They
sought to combine political justice with economic and social justice.
Fundamental Duties: Originally, the constitution of India did not contain any list of
fundamental duties. In other words, enjoyment of fundamental rights was not conditional on
the performance of fundamental duties. Democratic rights are based on the theory that rights
are not created by the state. Individuals are born with right. It is on this theory that the
Indians before independence raised the slogan that “freedom is our birth right.” It is in this
sense again that Prof. Laski asserts that the “state does not create rights, it only recognizes
rights.”
The socialists on the other hand, make enjoyment or rights conditional on the fulfillment of
duties. They claim that “he who does not work, neither shall he eat.” The constitution of the

Page | 41
world’s first socialist country, that of Soviet Union contains a list of fundamental rights
immediately followed by a list of fundamental duties. It is clearly asserted that the enjoyment
of fundamental rights is conditional on the satisfactory performance of fundamental duties.
It was on this Soviet model that fundamental duties were added to the Indian Constitution by
42nd amendment of the constitution in 1976. The fundamental duties are contained in Art.
51A.
Art. 51A, Part IVA of the Indian Constitution, specifies the list of fundamental duties of the
citizens. It says “it shall be the duty of every citizen of India:

 to abide by the constitution and respect its ideal and institutions;

 to cherish and follow the noble ideals which inspired our national struggle for
freedom;
 to uphold and protect the sovereignty, unity and integrity of India;
 to defend the country and render national service when called upon to do so;
 to promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional diversities, to renounce practices
derogatory to the dignity of women;
 to value and preserve the rich heritage of our composite culture;
 to protect and improve the natural environment including forests, lakes, rivers, and
wild-life and to have compassion for living creatures;
 to develop the scientific temper, humanism and the spirit of inquiry and reform;
 to safeguard public property and to abjure violence;
 to strive towards excellence in all spheres of individual and collective activity, so that
the nation constantly rises to higher levels of endeavor and achievement.
Further, one more Fundamental duty has been added to the Indian Constitution by 86th
Amendment of the constitution in 2002 i.e. who is a parent or guardian , to provide
opportunities for education to his child, or as the case may be, ward between the age of six
and fourteen years.
The fundamental duties however are non-justiciable in character. This means that no citizen
can be punished by a court for violation of a fundamental duty. In this respect the
fundamental duties are like the directive principles of the constitution in part IV. The
directive principles lay down some high ideals to be followed by the state. Similarly, the
fundamental duties in Art 51 A, lay down some high ideals to be followed by the citizens. In
both cases, violation does not invite any punishment. It is significant that the fundamental
duties are placed at the end of part IV rather than at the end of part III of the constitution.
While part III containing fundamental rights is justiciable, part IV containing the directive
principles is not.
However, these fundamental duties are not mere expressions of pious platitudes. Courts will
certainly take cognizance of laws seeking to give effect to fundamental duties. Further, the
fundamental duties enumerated in Art. 51A constitute a constant reminder to the citizens that
they have duties in building up a free, egalitarian and healthy society. These are expected to
act as damper to reckless and anti-social activities on the part of some individuals. Finally,

Page | 42
the very fact that these duties figure in the constitution, keeps the door open for the duties to
be given higher constitutional status in future through constitutional amendments.
Relationship between Centre and State: After independence India adopted the federal
structure for, perhaps, administrative convenience. There is dual policy, with the Union
Government at the Centre and the state governments at the periphery—each enjoying powers
assigned to them. The autonomy of the states is so adjusted with the Centre that the latter can
perform its function of ensuring unity of the country. The legislative relations between the
Centre and the states determined in accordance with the provisions of the Article 246 of the
Constitution. The legislative powers are categorized in three lists—Union List with 97
subjects, States List with 66 and Concurrent List with 47 subjects. Residuary legislative
powers rest with the Parliament. Moreover when there is state of emergency, Parliament can
make laws on the subjects given under Union List. In the case of a conflict between the laws
made by the state and the laws passed by the Centre the central law will prevail.
The executive power of every state must comply with the laws made by the Parliament. The
executive power of the state should be exercised in a manner that it does not impede of
prejudice the executive power of the Union. The Centre can direct the states if matters of
national importance are concerned. During emergency, Union Government can assume vast
administrative powers.
The financial relations between the Centre and state are the main subject of controversy now-
a-days. While deciding these relations the fathers of the Constitution followed the India Act
of 1935. Some taxes are levied and collected exclusively by the Central Government while
others are levied and collected only by the states. These are taxes levied by the Centre which
are collected by the states and others which are levied and collected by the Centre and given
to the states.
Indian Judiciary: Indian Justice System: A unique feature of the Indian Constitution is that,
despite its Federal system and the existence of the Central and State laws with their
predefined spheres of application, there exists a single integrated system of Courts which
administers both the central and the state laws.
Hierarchy of the Courts in India: The Supreme Court of India and the High Courts are the
two constitutional courts that are vested with major powers to protect the Fundamental
Rights of the citizens and also to interpret the Constitution and other laws (for detailed
discussion see Module III).
Criminal Justice Administration: Administration of criminal justice is carried out through
Magistrate Courts and Sessions courts. The hierarchy of criminal courts is given below. The
Court at the lowest level is called Judicial Magistrate of the second class. This Court is
competent to try the case if the offence is punishable with imprisonment for a term not
exceeding one year, or with fine not exceeding five thousand rupees, or with both. The First
Class Magistrate is competent to try offences punishable with imprisonment for a term not
exceeding three years or with fine up to ten thousand rupees. The Chief Judicial Magistrate
can impose any fine and punishment up to seven years imprisonment. The Assistant Sessions
Judge is competent to impose punishments up to ten years imprisonment and any fine. The
Sessions Judge can impose any punishment authorized by law; but the sentence of death

Page | 43
passed by him should be subject to the confirmation by the High Court. (See for details
Sections 28 and 29 of Criminal Procedure Code.)
The purpose of Criminal Justice system is to punish the guilt for actions and omissions
prohibited by law and we find prohibited actions and omissions and appropriate sanctions
under laws like Indian penal code, NDPS Act,
These commission of these offences are adjudicated with the aid of procedure called
Criminal procedure code, 1973, Criminal rules of Practice and Indian Evidence act, 1872.
Under Cr.P.C we find which forum to be approached to redress grievance - how to approach
it – steps forum should take to receive grievance – method of calling opposite party – mode
of disposing the case mode of disposing he case and executing the pronounced order -
appeal- interim reifies. Under Evidence act we find when a fact alleged in said to be proved,
who has to prove, with what facts it must be proved and mode of recording evidence.
Now the bottom line is we have a right/offence based approach, it means if you have right or
causing of injury contravention of law, one can approach court. However, approaching court
doesn’t mean physical appearance. As in adversarial method of adjudication the role of judge
is not active but to act upon version placed on either side. As such, this underlies significance
of lawyer with robust personality, skill and values but not a mere message transmitter. These
qualities are important as adversarial method of adjudication insists certain rules and
principles either to receive or adjudicate aggrieved claim. These rules and principles directly
or indirectly mandates trial lawyer to acquire qualities like: a) Conversion of human problem
into a legal problem b) knowledge and wisdom in application of procedural laws to the real
problems to get the desired result c) skill of ascertaining facts through the client so as to
bring them within or outside the fold of right or offence and ability of processing in the court
of law so as to prove or disprove it.
Emergency Provisions: Emergency is a very unique concept and one of the most significant
features of the Indian Constitution which empowers the Union or the Central Government to
assume wide powers to handle emergency situations. When the Centre proclaims emergency
then in effect the Centre can take full legislative and executive control of any state. After the
proclamation of emergency a center can restrict certain freedom of the citizens. Such a
centralized power in the hands of the union government prevents India from being
recognized as a fully federal state.
The Constitution of India recognizes three forms of Emergency:
 National Emergency
 State Emergency
 Financial Emergency
National Emergency: The Constitution of India has provided for imposition of emergency
caused by war, external aggression or internal rebellion. This is described as the National
Emergency. This type of emergency can be declared by the President of India if he is
satisfied that the situation is very grave and the security of India or any part thereof is
threatened or is likely to be threatened either, By war or external aggression or By armed
rebellion within the country.

Page | 44
The President can issue such a proclamation even on the ground of threat of war or
aggression. According to the 44th Amendment of the Constitution, the President can declare
such an emergency only upon the written approval of the Cabinet along with the two-third
majority approval of both the Houses of Parliament. Such an approval must be received
within one month from the date of proposal otherwise the proclamation will cease to operate.
If a national emergency proclamation is sought to be imposed at a time when the Lok Sabha
is under the period of dissolution then the proposal of emergency should be approved by
Rajya Sabha later on by the Lok Sabha also within one month of the start of its next session.
Once the emergency is imposed then it shall remain in force for a period of six months from
the date of proclamation. Further extension is possible subject to following of the same
procedures regarding approval and imposition of emergency.
For the first time, emergency was declared on 26 October 1962 after China attacked our
borders in the North East. This National Emergency lasted till 10 January 1968, long after the
hostilities ceased. Imposition of National Emergency has the following effects:

 One of the most notable and first impact of imposition of national emergency is
the conversion of the federal aspect of the constitution into unitary form.
Legislative and the Executive authority of the states ceases and the Centre is
empowered to make laws for the entire country or any part thereof including
legislating on matters listed in the state list as well.
 Executive authority of the states comes directly under the control of the President.
 During the period of imposition of emergency the Lok Sabha can extend its tenure
by a year. However under no circumstances its tenure can be extended for more
than six months after the cessation of the emergency.
 All fundamental right except the Right to Life and Personal Liberty stand
suspended during the period of emergency.
Emergency due to failure of Constitutional Machinery of State: The quasi-federal structure
of the Indian government obligates the Union to ensure that its states are governed as per the
provisions of the constitution. Under Article 356, the President may issue a proclamation to
impose emergency in a state if he is satisfied on receipt of a report from the Governor of the
State, or otherwise, that a situation has arisen under which the Government of the State
cannot be carried on smoothly. In such a situation, proclamation of emergency by the
President is called ‘proclamation on account of the failure (or breakdown) of constitutional
machinery.’ In popular language it is called the President’s Rule. Like National Emergency,
such a proclamation must also be placed before both the Houses of Parliament for approval.
In this case approval must be given within two months, otherwise the proclamation ceases to
operate. If approved by the Parliament, the proclamation remains valid for six months at a
time. It can be extended for another six months but not beyond one year. However,
emergency in a State can be extended beyond one year if

 a National Emergency is already in operation; or if

 The Election Commission certifies that the election to the State Assembly cannot
be held.

Page | 45
It was in 1951 that this type of emergency was imposed for the first time in the Punjab State.
In 1957, the Kerala State was put under the President’s Rule. Imposition of State Emergency
has the following effects:

 The President is empowered to undertake and perform all the legislative and the
executive functions of the state. Alternatively such powers can also be vested with
the Governor of the state or any other executive authority.
 Though not mandatory but if the President deems fit then he may dissolve or
suspend the legislative assembly of the state
 President can authorize the Union Parliament to make laws on behalf of the State
Legislature
 The President can make any other incidental or consequential provision necessary
to give effect to the object of proclamation.
Financial Emergency: The third form of emergency envisaged under the Indian Constitution
is the financial emergency as provided under Article 360 of the Indian Constitution. It
provides that if the President is satisfied that the financial stability or credit of India or any of
its part is in danger, he may declare a state of Financial Emergency. Like the other two types
of emergencies, it has also to be approved by the Parliament. It must be approved by both
Houses of Parliament within two months. Financial Emergency can operate as long as the
situation demands and may be revoked by a subsequent proclamation.
Imposition of Financial Emergency has the following effects:

 The Union Government may give direction to any of the States regarding
financial matters.
 The President may ask the States to reduce the salaries and allowances of all or
any class of persons in government service.
 The President may ask the States to reserve all the money bills for the
consideration of the Parliament after they have been passed by the State
Legislature.
 The President may also give directions for the reduction of salaries and
allowances of the Central Government employees including the Judges of the
Supreme Court and the High Courts.
So far, fortunately, financial emergency has never been proclaimed.
Amendment Provisions: Though a rigid constitution is a classified feature of the Indian
constitution but its flexibility to the changing needs of the society provides it adaptable to a
federal structure as well and hence the Indian Constitution has often be classified as a quasi-
federal form of government. That there have been more than 100 amendments in last 70
years proves this fact.
The amendment provision of the constitution refers to the process of altering the provisions
of the Indian Constitution. The said procedure is laid down under Article 368 of the Indian
constitution. The amendment provision was included by the drafters in an attempt to ensure
the sanctity of the constitution of India and consequently provide a safeguard from the
exercise of arbitrary power by the Parliament.

Page | 46
The Constitution provides procedures for three categories of amendments:
Amendment by Simple Majority: Constitutional provisions like Article 4 (i.e. admission and
establishment of new states), Article 169 (i.e. power to abolish or create legislative councils
in states), Para 7(2) of Schedule V (administration and control of the Schedule Areas and
Scheduled Tribes) and Para 21(2) of Schedule VI(power of the Parliament to enact laws
amending the Sixth Schedule which contains provisions for the administration of Tribal
Areas in the States of Assam, Meghalaya, Tripura and Mizoram) can be altered by way of a
Simple Majority such as that required for the passing of any ordinary law.
Amendment by Special Majority: Amendment by Special Majority along with Ratification
by State Legislature: If the amendment seeks to make any change in any of the provisions
mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than
one-half of the States. These provisions relate to certain matters concerning the federal
structure or of common interest to both the Union and the States viz., the election of the
President (Articles 54 and 55); the extent of the executive power of the Union and the States
(Articles 73 and 162); the High Courts for Union territories (Article 241); The Union
Judiciary and the High Courts in the States (Chapter IV of Part V and Chapter V of Part VI);
the distribution of legislative powers between the Union and the States (Chapter I of Part XI
and Seventh Schedule); the representation of States in Parliament; and the provision for
amendment of the Constitution laid down in article 368. Ratification is done by a resolution
passed by the State Legislatures.
An amendment can be initiated by the introduction of a bill in either House of Parliament
which should be passed in any of the three means as mentioned above. Once passed the bill
is then sent to the President for his assent.
The role of the States in constitutional amendment is limited. State Legislatures cannot
initiate any Bill or proposal for amendment of the Constitution. They are associated in the
process of the amendment only through the ratification procedure laid down in article 368, in
case the amendment seeks to make any change in the any of the provisions mentioned in the
proviso to article 368. The only other provision for constitutional changes by State
legislatures is to initiate the process for creating or abolishing Legislative Councils in their
respective Legislatures, and to give their views on a proposed Parliamentary Bill seeking to
affect the area, boundaries or name of any State or States which has been referred to them
under the proviso to Article 3. However, this referral does not restrict Parliament's power to
make any further amendments of the Bill.
Fundamental Principles of Constitutional Law: Separation of Powers: For the
preservation of the political liberty of the individuals and democracy, it becomes necessary in
a state to establish special organs for the exercise of powers. The powers of the government
are divided between its organs in accordance with the nature of powers to be exercised.
Broadly, the powers of a government in a state have been classified as the power to:
 Enact laws i.e., powers of the Legislature.
 Interpret laws i.e. powers of the Judiciary.
 Enforce laws i.e. powers of the Executive.

Page | 47
The theory of separation of powers in its simplest form implies that all the above functions
should be entrusted to three different authorities. The three organs of the government should
be kept separate and distinct. One organ should be independent of the control of others. Each
organ shall exercise its powers within its own sphere. This doctrine entails that each organ
shall not encroach upon or interferes with the powers and independence of other organs of
government. If any organ encroaches into the terrain of the other organ, it shall be checked
by another organ of the government. Thus, no new organ is created over and above the
existing organs of government, to check encroachment. (for more details see Separation of
powers in Administrative Law)
Basic Structure Doctrine: The basic structure doctrine is an Indian judicial principle that the
Constitution of India has certain basic features that cannot be altered or destroyed through
amendments by the parliament.
The question whether fundamental rights can be amended under article 368 came for
consideration in the Supreme Court in Shankari Prasad case. In this case validity of the first
constitutional amendment was challenged which had inter alia inserted Article 31-A and 31-
B to the constitution. The amendment was challenged on the ground that it sought to abridge
the rights conferred by part III and hence was void. The Supreme Court however rejected the
above argument and held that power to amend including the fundamental rights is contained
in Article 368. However this decision was overruled by the Supreme Court in the Golaknath
Case, wherein the validity of the seventeenth amendment was challenged. In order to resolve
the conflict that was thus created, the Supreme Court laid down the Basic Structure Doctrine
in the famous Keshavananda Bharti case in 1973. In this case validity of the 25th
Amendment act was challenged along with the Twenty-fourth and Twenty-ninth
Amendments. The court by majority overruled the Golak Nath case which denied parliament
the power to amend fundamental rights of the citizens. The majority held that article 368
even before the 24th Amendment contained the power as well as the procedure of
amendment. The Supreme Court declared that Article 368 did not enable Parliament to alter
the basic structure or framework of the Constitution and parliament could not use its
amending powers under Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or
'alter' the 'basic structure' or framework of the constitution. This decision is not just a
landmark in the evolution of constitutional law, but a turning point in constitutional history.
Basic Features of the Constitution according to the Keshavananda Bharti case verdict each
judge laid out separately, what he thought were the basic or essential features of the
Constitution.
Doctrine of Pith and Substance: One of the proven methods of examining the legislative
competence of a legislature with regard to an enactment is by the application of the doctrine
of pith and substance. This doctrine is applied when the legislative competence of the
legislature with regard to a particular enactment is challenged with reference to the entries in
various lists. If there is a challenge to the legislative competence, the courts will try to
ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In
this process, it is necessary for the courts to go into and examine the true character of the
enactment, its object, its scope and effect to find out whether the enactment in question is
genuinely referable to a field of the legislation allotted to the respective legislature under the
constitutional scheme. This doctrine is an established principle of law in India recognized not

Page | 48
only by this Court, but also by various High Courts. Where a challenge is made to the
constitutional validity of a particular State Act with reference to a subject mentioned in any
entry in List I, the Court has to look to the substance of the State Act and on such analysis
and examination, if it is found that in the pith and substance, it falls under an entry in the
State List but there is only an incidental encroachment on any of the matters enumerated in
the Union List, the State Act would not become invalid merely because there is incidental
encroachment on any of the matters in the Union List.
Doctrine of Severability: It provides that only that part of the law will be declared invalid
which is inconsistent with the fundamental rights and the rest of the law will stand. However,
invalid part of the law will be severed only if 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 otherwise the court shall declare the entire law as invalid.
Doctrine of Waiver: It provides that a person has the liberty to waive the enjoyment of such
rights as are conferred on him by the state, provide that such person must have the
knowledge of his rights and the waiver should be voluntarily, However, citizens cannot
waive of any of the fundamental rights
Doctrine of Eclipse: It provides that a law made before the commencement of the
constitution remains eclipsed or dormant to be extent in comes under the shadow of
fundamental rights i.e., is inconsistency brought about by the fundamental rights is removed
by the amendment to the Constitution of India.
Indian Constitution and Recent Developments: Since 2015, 26th November has been
celebrated as the Constitution Day in our country. This year the day marks the completion of
seven decades since the adoption of the constitution by the Constituent Assembly. In the life
of a nation seventy years of constitutional governance calls for introspection as well as
retrospection. It is said that Constitution is the legal heir of the past and testator of the future
therefore it is appropriate time to make an audit of the working of the constitution so far in
the light of the intention of its framers.
Probably, no other democratic constitution in the world has faced so many challenges as our
supreme lexi loci. Right from the first year of its working, there have been more than 100
amendments to the Constitution of India. They include those relating to special provisions for
the advancement of any socially and educationally backward classes or for the Scheduled
Castes and the Scheduled Tribes, land reforms, reorganization of states and union territories,
correcting regional imbalances, realizing the goals of directive principles, imposition of the
President’s rule in certain States, conferring constitutional status on National Commissions of
SC,ST and BC, abolition of right to property as a fundamental right, insertion of fundamental
duties, anti-defection law, proposal to establish national judicial appointments
commission(NJAC), GST and 10% reservation for EWS etc. This list is only illustrative.
If we recall the intentions of the framers of the Constitution, on November 25, 1949, Dr.
Ambedkar spoke of the need to give up the grammar of anarchy, to avoid hero-worship, and
to work towards a social – not just a political – democracy. He also forewarned about the
dangers inherent in hero-worship by observing that there is nothing wrong in being grateful
to great men who have rendered life-long services to the country but there are limits to

Page | 49
gratefulness, and that Bhakti in religion may be a road to the salvation of the soul but in
politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.
Regarding the social democracy he observed that political democracy cannot last unless there
lies at the base of it social democracy.
On the importance of fraternity he emphatically stated that fraternity means a sense of
common brotherhood of all Indians – of Indians being one people. He was prophetic about
the evil effects of casteism and remarked that ‘the United States has no caste problem. In
India there are castes. The castes are anti-national. In the first place because they bring about
separation in social life. They are anti-national also because they generate jealousy and
antipathy between caste and caste. But we must overcome all these difficulties if we wish to
become a nation in reality.’ Dr. Ambedkar’s views are as relevant today as were at the time
when they were expressed on the day before this great constitution was adopted.
On analyzing the working of our constitution during the last seven decades, we notice that
the political executive has made certain significant efforts to implement the objects of
constitution in letter and spirit though a certain kind of authoritarianism had emerged in the
early 1970s and it has been raising its head sporadically since then. .The 24th Constitutional
amendment (1971) proposed to dilute the effect of the I.C.Golaknath v.State of Punjab
(1967) which gave primacy to fundamental rights over the constitutional amendments ,
since they are within the purview of law. It conferred unlimited amending power on the
Parliament and by declared that constitutional amendment is not a law for the purpose of
fundamental rights. However the Supreme Court by majority exhibited its judicial
statesmanship by upholding the amendment on one hand but by pronouncing that no
constitutional amendment can affect Basic Features of the constitution including fundamental
rights. The Basic features doctrine has been the sine qua non for testing any constitutional
amendment made after 1973.
The 39th Constitutional amendment which proposed to shield the elections of the prime
minister and other holders of constitutional positions from judicial review was struck down
in Indira Nehru Gandhi vs. Raj Narain (1975) leading to imposition of the infamous national
emergency in June 1975. It reiterated that rule of law and judicial review are basic features of
the constitution.
The 42nd amendment made significant changes like introduction of fundamental duties,
giving primacy to directive principles over fundamental rights while making laws, and
amending the Preamble to include the words socialist and secular before republic etc. A
journalist commented that this amendment neither amended nor mended the constitution but
ended it. 43rd and 44th amendment, 1978 had undone some of the changes made by the
42nd amendment during the Janata Government. In Minerva Mills v.Union of India (1980),
the Supreme Court declared that harmony between fundamental rights and directive
principles is a basic feature of the constitution. Maneka Gandhi v.Union of India (1978)
expanded the horizons of life and personal liberty in India thanks to the judgments of Justice
P.N.Bhagwati and Js.Krishna Iyer.Anti Defection Law was introduced by 52nd amendment,
1985 to arrest the immoral and undemocratic trend of legislators elected on political party
ticket defecting to other political parties though it made an exception in the form of split and
merger. The 91st amendment (2004) strengthened the anti defection law to some extent by
removing splits as an exception, and also restricted the size of ministry to one fifteenth of

Page | 50
legislators of the concerned lower house. The 99th amendment proposed to introduce the
NJAC in place of the Supreme Court introduced Collegium system in 1993 but the same was
struck down as an affront to independence of judiciary, a basic feature of the constitution in
2015. The 101st amendment introduced the Goods and Services Act (GST) as an exercise of
cooperative federalism to streamline the indirect taxes in India. The 103rd amendment(2019)
introduced 10% reservations to Economically Weaker Sections (EWS).The year 2019 also
witnessed the abolition of Article 370 which conferred special status on Jammu and
Kashmir, and also the trifurcation of the State into union territories.
A look at the above 100 plus amendments shows that Indian Constitution has been formally
changed more than 100 times during 70 years of its working .The US Constitution of 1787
has been amended only 27 times since 1789 and the Australian Constitution of 1900 has been
amended only 8 times till now. The Indian experience should be taken as either as the
dynamic character of our constitution or as the compulsion of political expediency.
The unfinished agenda of the constitution includes revitalizing the anti-defection law to make
it more effective, streamlining the process of formation of coalition governments, conferring
more powers on the States, making education as a concurrent subject, making the
compensatory discrimination more scientific, enactment of uniform civil code, introduction
of judicial accountability, and prevention of corruption. Though, not envisaged as an
imperium in imperio, the judiciary appears to have performed its constitutional role better by
way of judicial activism and liberal interpretation of constitution and laws. Evolution of basic
structure theory, applying speed-breakers on misuse of the President’s rule, monitoring the
issue of mining licenses to stop indiscriminate exploitation of natural resources, acting as a
catalyst to ensure some success in environmental protection, and introducing safeguards
against violation of human rights etc.
It is absolutely necessary to realize that the supreme law is applicable to all the citizens. The
present day society seems to be more divided as compared to the one which has been
inherited in 1947.It is alarming that fraternity, about which Dr. Ambedkar eloquently spoke
in the Constituent Assembly along with equality and liberty, seems to have become a
casualty. Subversion of the constitution and dilution of constitutional values by the rulers and
also the governed would have catastrophic results which our great country could afford to
tolerate.
It is appropriate to recollect the words of Dr.Rajendra Prasad who famously observed that “If
the people who are elected are capable and men of character and integrity, they would be
able to make the best even of a defective Constitution. If they are lacking in these, the
Constitution cannot help the country”. It is also said that the people get the governments they
deserve. The question is there the statesmen of capacity, character and integrity?

ADMINISTRATIVE LAW
Administrative law is the bye-product of the growing socio-economic functions of the State
and the increased powers of the government. With the growth of the society, its complexity
increased and thereby presenting new challenges to the administration. In the modern society,
the functions of the state are manifold, In fact, the modern state is regarded as the custodian
of social welfare and consequently, there is not a single field of activity which is free from

Page | 51
direct or indirect interference by the state. Along with duties, and powers the state has to
shoulder new responsibilities. The growth in the range of responsibilities of the state thus
ushered in an administrative age and an era of Administrative law.
Therefore, the attainment of socio-economic justice being a conscious goal of state policy,
there is a vast and inevitable increase in the frequency with which ordinary citizens come
into relationship of direct encounter with state power holder. The Administrative law is an
important weapon for bringing about harmony between power and justice. The basic law of
the land i.e. the Constitution governs the administrators. Administrative law essentially deals
with location of power and the limitations thereupon.
Need for the Administrative Law: Its Importance and Functions: The emergence of the
social welfare has affected the democracies very profoundly. It has led to state activism.
There has occurred a phenomenal increase in the area of sate operation; it has taken over a
number of functions, which were previously left to private enterprises. The state today
pervades every aspect of human life. The functions of a modern state may broadly be placed
into five categories, viz, the state as protector, provider, entrepreneur, economic controller
and arbiter. Administration is the all-pervading feature of life today. The province of
administration is wide and embraces following things within its ambit - It makes policies, It
provides leadership to the legislature, It executes and administers the law and It takes
manifold decisions. It exercises today not only the traditional functions of administration, but
other varied types of functions as well. It exercises legislative power and issues a plethora of
rules, bye- laws and orders of a general nature.
The advantage of the administrative process is that it could evolve new techniques, processes
and instrumentalities, acquire expertise and specialization, to meet and handle new complex
problems of modern society. Administration has become a highly complicated job needing a
good deal of technical knowledge, expertise and know-how. Continuous experimentation and
adjustment of detail has become an essential requisite of modern administration. At times,
administration is explained in a negative manner by saying that what does not fall within the
purview of the legislature or the judiciary is administration.
In such a context, a study of administrative law becomes of great significance. The increase
in administrative functions has created a vast new complex of relations between the
administration and the citizen. The modern administration impinges more and more on the
individual; it has assumed a tremendous capacity to affect the rights and liberties of the
people. There is not a moment of a person’s existence when he is not in contact with the
administration in one-way or the other. This circumstance has posed certain basic and critical
questions for us to consider:

 Does arming the administration with more and more powers keep in view the
interests of the individual?
 Are adequate precautions being taken to ensure that the administrative agencies
follow in discharging their functions such procedures as are reasonable, consistent
with the rule of law, democratic values and natural justice?
 Has adequate control mechanism been developed so as to ensure that the
administrative powers are kept within the bounds of law, and that it would not act as a
power drunk creature, but would act only after informing its own mind, weighing

Page | 52
 carefully the various issues involved and balancing the individual’s interest against
the needs of social control?
It has increasingly become important to control the administration, consistent with the
efficiency, in such a way that it does not interfere with impunity with the rights of the
individual. Between individual liberty and government, there is an age-old conflict the need
for constantly adjusting the relationship between the government and the governed so that a
proper balance may be evolved between private interest and public interest. It is the task of
administrative law to ensure that the governmental functions are exercised according to law,
on proper legal principles and according to rules of reason and justice fairness to the
individual concerned is also a value to be achieved along with efficient administration.
A democracy will be no better than a mere façade if the rights of the people are infringed
with impunity without proper redressed mechanism. This makes the study of administrative
law important in every country. Administration in India is bound to multiply further and at a
quick pace. If exercised properly, the vast powers of the administration may lead to the
welfare state; but, if abused, they may lead to administrative despotism and a totalitarian state
a careful and systematic study and development of administrative law becomes a desideratum
as administrative law is an instrument of control of the exercise of administrative powers.
Nature and Definition of Administrative Law: Administrative Law is, in fact, the body of
those which rules regulate and control the administration. Administrative Law is that branch
of law that is concerned with the composition of power, duties, rights and liabilities of the
various organs of the Government that are engaged in public administration. Under it, we
study all those rules laws and procedures that are helpful in properly regulating and
controlling the administrative machinery.
There is a great divergence of opinion regarding the definition/conception of administrative
law. The reason being that there has been tremendous increase in administrative process and
it is impossible to attempt any precise definition of administrative law, which can cover the
entire range of administrative process.
Let us consider some of the definitions as given by the learned jurists.
Austin has defined administrative Law. As the law, which determines the ends and modes to
which the sovereign power shall be exercised. In his view, the sovereign power shall be
exercised either directly by the monarch or directly by the subordinate political superiors to
whom portions of those are delegated or committed in trust.
Holland regards Administrative Law “one of six” divisions of public law. In his famous
book “Introduction to American Administrative Law 1958”,
Bernard Schawartz has defined Administrative Law as “the law applicable to those
administrative agencies which possess of delegated legislation and ad judicatory authority.”
Jennings has defined Administrative Law as “the law relating to the administration. It
determines the organization, powers and duties of administrative authorities.”

Page | 53
Dicey in 19th century defines it as. Firstly, portion of a nation’s legal system which
determines the legal statues and liabilities of all State officials. Secondly, defines the right
and liabilities of private individuals in their dealings with public officials. Thirdly, specifies
the procedure by which those rights and liabilities are enforced.
This definition suffers from certain imperfections. It does not cover several aspects of
administrative law, e.g. it excludes the study of several administrative authorities such as
public corporations which are not included within the expression “State officials,” it excludes
the study of various powers and functions of administrative authorities and their control. His
definition is mainly concerned with one aspect of administrative. Law, namely, judicial
control of public officials.
A famous jurist Hobbes has written that there was a time when the society was in such a
position that man did not feel secured in it. The main reason for this was that there were no
such things as administrative powers. Each person had to live in society on the basis of his
own might accordingly to Hobbes, “In such condition, there was no place for industry, arts,
letters and society. Worst of all was the continual fear of danger, violent death and life of
man solitary poor, nasty and brutish and short.
K.C. Davis has defined administrative law in the following words: “Administrative Law is
the law concerning the powers and procedures of administrative agencies including specially
the law governing judicial review of administrative action.”
In the view of Friedman, Administrative Law includes the following:

 The legislative powers of the administration both at common law and under a vast
mass of statutes.
 The administrative powers of the administration.
 Judicial and quasi-judicial powers of the administration, all of them statutory.
 The legal liability of public authorities.
 The powers of the ordinary courts to supervise the administrative authorities.
Thus the concept of administrative law has assumed great importance and remarkable
advances in recent times. There are several principles of administrative law, which have been
evolved by the courts for the purpose of controlling the exercise of power. So that it does not
lead to arbitrariness or despotic use of power by the instrumentalities or agencies of the state.
During recent past judicial activism has become very aggressive. It was born out of desire on
the part of judiciary to usher in rule of law society by enforcing the norms of good
governance and thereby produced a rich wealth of legal norms and added a new dimension to
the discipline administrative law.
Causes for Growth of Administrative Law: The following reasons are responsible for the
growth and development of Administrative Law.
1. Due to emphasis on public welfare activities, which are increasing day by day.
2. Due to urbanization and industrialization
3. Due to administrative interference in public life and consequential apprehension.

Page | 54
 4. Due to the problem of scientific and technological developments and resultant
problems.
5. Due to the requirement of speedy and simpler modes of social justice, the
administrative law is required to grow.
6. To ensure economic and social justice administrative law is required and ultimately it
has become one of the reasons for the growth of administrative law
7. The inadequacy of the traditional type of courts and law making organs to give the
quality and speedy performance, which is required for these days, has become a cause
for the growth.
Relationship between Administrative Law and Constitutional Law: Constitutional and
administrative law both govern the affairs of the state. Administrative law, an area of law that
gained early sophistication in France, was until well into this century largely unrecognized in
the United Kingdom as well as the United States. To the early English writers on
administrative law, there was virtually no difference between administrative law and
constitutional law. This is evident from the words of Keith: “It is logically impossible to
distinguish administrative from constitutional law and all attempts to do so are artificial."
Some jurists like Felix Frankfurter even went as far as to call it “illegitimate and exotic".
The root of all confusion in the United Kingdom is its lack of a written constitution. In a state
with a written constitution, the source of constitutional law is the Constitution while the
sources of administrative law include statutes, statutory instruments, precedents and customs
whereas in the United Kingdom, this distinction is not very clear cut – it is in fact, quite
blurred.
Due to this lack of clarity, it will be vital to observe the views of jurists and scholars on the
difference between administrative law and constitutional law. According to Holland,
constitutional law describes the various organs of the government at rest, while
administrative law describes them in motion. Holland contends that the structure of the
executive and the legislature comes within the purview of constitutional law whereas their
functioning is governed by administrative law.
Jennings puts forward another view, which says that administrative law deals with the
organization, functions, powers and duties of administrative authorities while constitutional
law deals with the general principles relating to the organization and powers of the various
organs of the State and their mutual relationships and relationship of these organs with the
individual. Simply put, constitutional law lays down the fundamentals of the workings of
government organs while administrative law deals with the details.
The fundamental constitutional principle, inspired by John Locke, holds that “the individual
can do anything but that which is forbidden by law, and the state may do nothing but that
which is authorised by law". Administrative law is the chief method for people to hold state
bodies to account. People can apply for judicial review of actions or decisions by local
councils, public services or government ministries, to ensure that they comply with the law.
The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon
assumed power in France. Whatever be the correct position, there always exists an area of
overlap between constitutional law and administrative law. In India, this corresponds to the
whole constitutional mechanism for the control of administrative authorities – Articles 32,

Page | 55
136, 226, 227, 300 and 311. It can also include the study of administrative agencies provided
for in the Constitution itself. Further, it may include the study of constitutional limitations on
delegation of powers to the administrative authorities and also those provisions of the
Constitution which restrict administrative action; for example, the Fundamental Rights.
Constitutional Law viewed through Administrative Eyes: Since the English Constitution is
unwritten, the impact of constitutional law upon administrative law in England is
insignificant and blurred. As Dicey observes, the rules which in other countries form part of a
constitutional code are the result of the ordinary law of the land in England. As a result,
whatever control the administrative authorities can be subjected to, if any, must be deduced
from the ordinary law, as contained in statutes and judicial decisions. But, in countries
having written constitutions, there is an additional source of control over administrative
action. In these countries there are two sources or modes of exercising judicial control over
the administrative agencies – constitutional and non-constitutional. The written constitution
imposes limitations upon all organs of the body politic. Therefore, while all authors attempt
to distinguish the scope of administrative law from that of constitutional law, they cannot
afford to forget not to mention that in a country having written constitution with judicial
review, it is not possible to dissociate the two completely.
The acts of the executive or the administration are protected in India in various ways. The
legislative acts of the administration, i.e. statutory instruments (or subordinate legislation) are
expressly brought within the fold of Article 13 of the Constitution, by defining “law" as
including “order, bye-law, rule, regulation, notification" or anything “having the force of
law". As in all common law countries, a delegated legislation can be challenged as invalid
not only on the ground of being ultra vires the statute which confers power to make it, but
also on the additional ground that it contravenes any of the fundamental rights guaranteed by
Part III of the Constitution.
Constitutional law thus advances itself into the judicial review chapter in administrative law
in a country like the USA or India. The courts in these countries have to secure that the
administration is carried on not only subject to the rule of law but also subject to the
provisions of their respective Constitutions. It can be observed that an attack upon the
constitutionality of a statute relates to constitutional law and the constitutionality of an
administrative action concerns administrative law, but the provisions of the same
Constitution apply in both the spheres.
The object of both the common law doctrine of rule of law or supremacy of law and a written
constitution is the same, namely, the regulation and prevention of arbitrary exercise of power
by the administrative agencies of the Government. The rule of law insists that “the agencies
of the Government are no more free than the private individual to act according to their own
arbitrary will or whim but must conform to legal rules developed and applied by the courts".
The business of the written constitution is to embody these standards in the form of
constitutional guarantees and limitations and it is the duty of the courts to protect the
individual from a breach of his rights by the departments of the Government or other
administrative agencies.
Administrative growth in constitutional matrix: Administrative law is a by-product of
intensive form of Government. During the last century, the role of Government has changed

Page | 56
in almost every State of the world; from a laissez faire state to a welfare and service state. As
a result, it is expected of the modern state not only to protect its citizens from external
aggression and internal disturbance, but also to take care of its citizens, right from birth to
their death. Therefore, the development of administrative process and the administrative law
has become the cornerstone of modern political philosophy.
Today there is a demand by the people that the Government must redress their problems in
addition to merely defining their rights. The rights are elaborately defined in the Constitution
but the policies to protect these rights are formulated by the Government (the executive) and
implemented by the administrative agencies of the State. There thus arises a direct nexus
between the constitutional law and administrative law where the former acts as a source from
which the rights of the individuals flow and the latter implements its policies accordingly
mandated to preserve the sanctity of those rights.
Constitutional determination of the scope of administrative function: The Indian Constitution
is unanimously and rightly termed as the “grand norm" with respect to domestic legislations.
The Constitution circumscribes the powers of the legislature and executive and limits their
authority in various ways. It distributes the governmental powers between the Centre and the
States. It guarantees the fundamental rights to its citizens and protects them from any
abridgement by the State by way of legislative or executive action. The courts interpret the
Constitution and declare the acts of legislature as well as executive as unconstitutional if they
violate the any provision of the Constitution.
Constitutional Impact on Administrative Adjudication: In order to provide speedy and
inexpensive justice to employees aggrieved by administrative decisions, the Government set
up the Central Administrative Tribunal (CAT) in 1985, which now deals with all cases
relating to service matters which were previously dealt with by courts up to and including the
High Courts. Establishment of the Central Administrative Tribunal under the Administrative
Tribunals Act, 1985 is one of the important steps taken in the direction of development of
administrative law in India. The Administrative Tribunals Act while stimulating the
development of administrative law, drew its legitimacy and substance from the constitutional
law and was passed by Parliament in pursuance of Article 323-A of the Constitution. Dr.
Rajeev Dhavan comments on the new tribunal system envisaged under Art. 323-A: “The
Forty-second Amendment envisaged a tribunal structure and limited review powers by the
High Courts. In the long run, this could mean a streamlined system of tribunal justice under
the superintendence of the Supreme Court. Properly worked out such a system is not a bad
one. It would be both an Indian and a common law adaptation of the French system of droit
administratif."
Although the relationship between constitutional law and administrative law is not very
emboldened to be seen with naked eyes but the fact remains that concomitant points are
neither so blurred that one has to look through the cervices of the texts with a magnifier to
locate the relationship. The aforementioned veracities and illustrations provide a cogent
evidence to establish an essential relationship between the fundamentals of both the concepts.
If doubts still persist, the very fact that each author, without the exception of a single, tends
to differentiate between the two branches of law commands the hypothecation of a huge
overlap.

Page | 57
The separate existence of administrative law is at no point of time disputed; however, if one
draws two circles of the two branches of law, at a certain place they will overlap depicting
their stern relationship and this area may be termed as watershed in administrative law. In
India, in the watershed one can include the whole control mechanism provided in the
Constitution for the control of administrative authorities i.e. Articles 32, 136, 226, 227 300
and 311. It may include the directives to the State under Part IV. It may also include the
study of those administrative agencies which are provided for by the Constitution itself under
Articles 261, 263, 280, 315, 323-A and 324. It may further include the study of constitutional
limitations on delegation of powers to the administrative authorities and also those provisions
of the Constitution which place fetters on administrative action i.e. fundamental rights.
Classification of Administrative Action: Administrative action is a comprehensive term
and defies exact definition. In modern times the administrative process is a by-product of
intensive form of government and cuts across the traditional classification of governmental
powers and combines into one all the powers, which were traditionally exercised by three
different organs of the State. Therefore, there is general agreement among the writers on
administrative law that any attempt of classifying administrative functions or any conceptual
basis is not only impossible but also futile. Even then a student of administrative law is
compelled to delve into field of classification because the present-day law especially relating
to judicial review freely employs conceptual classification of administrative action.
Need for classification: As we discussed above, the executive now performs variegated
functions like administrative, quasi-legislative and quasi-judicial functions. So in particular
case whether the functions performed by the executive performed by the executive is purely
administrative, quasi-legislative or quasi-judicial in character is to be classified, because
many consequences flow from it. The possible consequences are as under:
1. If the executive authority exercises a judicial or quasi - judicial function, it must
follow Principles of Natural Justice and is amenable to the writ of prohibition or
certiorari.
2. If it is an administrative function then writ of “Mandamus” can be filed or writ of
3. Habeas corpus can be filed. And this function can be delegated.
4. If it is a quasi-legislative or legislative function then the requirement of publication
5. Laying on the table and consultation can be done.
6. If it is an administrative function, it can be delegated whereas judicial function cannot
be delegated.
It is difficult to classify the functions of the executive, as there is no perfect and scientific
formula to distinguish the functions performed by the executive is whether a legislative or an
executive or a judicial in given case. Justice Hedge rightly states, “the dividing line between
and administrative power and quasi-judicial power is quit thin and is being gradually
obliterated ...” But for sake of understanding, broad classification can be done basing on the
judgments of Hon’ble Supreme Court and High Courts of various states respectively.
Thus, speaking generally, an administrative action can be classified into four categories:
i. Rule-making action or quasi-legislative action.
ii. Rule-decision action or quasi-judicial action.

Page | 58
 iii. Rule-application action or administrative action.
iv. Ministerial action
Rule-making action of the administration partakes all the characteristics, which a normal
legislative action possesses. Such characteristics may be generality, prospectivity and a
behaviour that bases action on policy consideration and gives a right or a disability. These
characteristics are not without exception. In some cases, administrative rule-making action
may be particularised, retroactive and based on evidence.
Rule-decision action or quasi-judicial action – Today the bulk of the decisions which affect a
private individual come not from courts but from administrative agencies exercising ad
judicatory powers. The reason seems to be that since administrative decision-making is also a
by-product of the intensive form of government, the traditional judicial system cannot give to
the people that quantity of justice, which is required in a welfare State. Administrative
decision-making may be defined, as a power to perform acts administrative in character, but
requiring incidentally some characteristics of judicial traditions. On the basis of this
definition, the following functions of the administration have been held to be quasi-judicial
functions:
1. Disciplinary proceedings against students. 2. Disciplinary proceedings against an
employee for misconduct. 3. Confiscation of goods under the sea Customs Act, 1878. 4.
Cancellation, suspension, revocation or refusal to renew license or permit by licensing
authority. 5. Determination of citizenship. 6. Determination of statutory disputes. 7. Power to
continue the detention or seizure of goods beyond a particular period. 8. Refusal to grant ‘no
objection certificate’ under the Bombay Cinemas (Regulations) Act, 1953. 9. Forfeiture of
pensions and gratuity. 10. Authority granting or refusing permission for retrenchment. 11.
Grant of permit by Regional Transport Authority.
Attributes of administrative decision-making action or quasi-judicial action and the
distinction between judicial, quasi-judicial and administrative action.
Rule-application action or administrative action – Though the distinction between quasi-
judicial and administrative action has become blurred, yet it does not mean that there is no
distinction between the two. If two persons are wearing a similar coat, it does not mean that
there is no difference between them. The difference between quasi-judicial and
administrative action may not be of much practical consequence today but it may still be
relevant in determining the measure of natural justice applicable in a given situation. In A.K.
Kraipak v. Union of India, the Court was of the view that in order to determine whether the
action of the administrative authority is quasi-judicial or administrative, one has to see the
nature of power conferred, to whom power is given, the framework within which power is
conferred and the consequences. Therefore, administrative action is the residuary action
which is neither legislative nor judicial. It is concerned with the treatment of a particular
situation and is devoid of generality. It has no procedural obligations of collecting evidence
and weighing argument. It is based on subjective satisfaction where decision is based on
policy and expediency. It does not decide a right though it may affect a right. However, it
does not mean that the principles of natural justice can be ignored completely when the
authority is exercising “administrative powers”. Unless the statute provides otherwise, a

Page | 59
minimum of the principles of natural justice must always be observed depending on the fact
situation of each case.
Broadly speaking, acts, which are required to be done on the subjective satisfaction of the
administrative authority, are called ‘administrative’ acts, while acts, which are required to be
done on objective satisfaction of the administrative authority, can be termed as quasi-judicial
acts. Administrative decisions, which are founded on pre-determined standards, are called
objective decisions whereas decisions which involve a choice as there is no fixed standard to
be applied are so called subjective decisions. The former is quasi-judicial decision while the
latter is administrative decision. In case of the administrative decision there is no legal
obligation upon the person charged with the duty of reaching the decision to consider and
weigh submissions and arguments or to collate any evidence. The grounds upon which he
acts and the means, which he takes to inform himself before acting, are left entirely to his
discretion. The Supreme Court observed, “It is well settled that the old distinction between a
judicial act and administrative act has withered away and we have been liberated from the
pestilent incantation of administrative action.
Ministerial action – A further distillate of administrative action is ministerial action.
Ministerial action is that action of the administrative agency, which is taken as matter of duty
imposed upon it by the law devoid of any discretion or judgment. Therefore, a ministerial
action involves the performance of a definitive duty in respect of which there is no choice.
Collection of revenue may be one such ministerial action. 1. Notes and administrative
instruction issued in the absence of any 2. If administrative instructions are not referable to
any statutory authority they cannot have the effect of taking away rights vested in the person
governed by the Act.
Doctrine of Separation of Powers: This concept was originated by “Aristotle” and was
developed by Lock. But it was given a base and made popular by French jurist, Montesqeu.
The theory of separation of powers divides the governmental functions into three categories,
namely, 1.Legislative power; 2. Judicial power; 3. Administrative power. According to this
theory these three powers should be held by different bodies and should not be vested in one
body and should not be fused one with the other. Actually, this concept was originated by
“Aristotle” and was developed by Lock. However it was given a base and made popular by
French jurist, Montesqeu through his great work Esprit Des Lois (The spirit of Laws) in the
year1748.
As per Montesque: Executive, judiciary, legislative are the three organs of state. None of
these three organs should control or interfere with the exercise of the functions of the other
organs i.e., one organ should not exercise the functions of another organ.
According to the Black Stone “if the legislative, the executive and the judicial functions were
given to one man, there was end of personal liberty. The Lord Acton also observes the same
view of point that is “every power tends to corrupt and absolute power tends to corrupt
absolutely”.According to Friedman and Benjafield “each of the three function of the
Government contains elements of other two and that any rigid attempt to define and serious
inefficiency in Government”. Thus, it is impossible to stick to this doctrine, as the modern
state being a welfare state has to solve many complex socio-economic problems. Justice

Page | 60
Frankfurter also states “enforcement of a rigid concept of separation of powers would make
modern government impossible.
According to Basu, the theory of separation of powers means an organic separation and a
distribution must be drawn between “essential” and “incidental” powers and that one organ
of the Government cannot usurp or encroach upon the essential functions belong to another
organ , but may exercise some incidental function thereof.
Thus, it is rightly pointed out by the C.K.Takwani in his book that “on the whole, the
doctrine of separation of powers in the strict sense is undesirable and impracticable and,
therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis
on those checks and balances which are necessary to prevent and abuse of enormous powers
of the executive. The object of the doctrine is to have a government of law rather than of
official will or whim”.
Indian constitution and doctrine of separation of powers: Through not in strict sense, the
doctrine of separation of powers has been accepted in the constitution of India. In general
under Indian constitution, the executive powers are with the President, the legislative powers
with Parliament and the judicial powers with the Judiciary (i.e., the Supreme Court, High
Court and subordinate courts).
In Kartar Sing Vs State of Punjab, A.I.R 1995 S.C 1726, the Supreme Court held that “It is
basic postulate under Indian Constitution that the legal sovereign powers have been
distributed between the legislature to make the law, the executive to implement the law and
the judiciary to interpret the law with the limits set down by the Constitution.”
Rule of Law: The doctrine of rule of law has its origin in England and it is one of the
fundamental characteristics of the British constitutional system. It lays down that the law is
supreme and hence the government must act according to law and within the limits of the
law. It is the legal principle that law should govern a nation, as opposed to being governed by
arbitrary decisions of individual government officials. It primarily refers to the influence and
authority of law within society, particularly as a constraint upon behavior, including behavior
of government officials.
A V Dicey in his book The Law of the Constitution (1885) has given the following three
implications of the doctrine of rule of law.
Absence of arbitrary power, that is, no man is punished except for a breach of law
Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low,
official or non official) to the ordinary law of the land administered by the ordinary law
courts
The primacy of the rights of individual, that is, the constitution is the result of the rights of
the individual as defined and enforced by courts of law, rather than constitution being the
source of the individual rights
Most legal theorists believe that the rule of law, popularized in 19th century, has purely
formal characteristics, and possess the characteristics of generality, equality, and certainty,

Page | 61
but there are no requirements with regard to the content of the law and protection of
individual rights.
Today Dicey's theory of rule of law cannot be accepted in its totality. The modern concept of
the rule of law is fairly wide and therefore sets up an ideal for any government to achieve.
Accordingly - "The rule of law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as an individual is
upheld. This dignity requires not only the recognition of certain civil or political rights but
also creation of certain political, social, economical, educational and cultural conditions
which are essential to the full development of his personality".
The relevance of the Rule of Law is demonstrated by application of the following principles
in practice:

 The separation of powers between the legislature, the executive and the judiciary.
 The law is made by representatives of the people in an open and transparent way.
 The law and its administration is subject to open and free criticism by the people, who
may assemble without fear.
 The law is applied equally and fairly, so that no one is above the law.
 The law is capable of being known to everyone, so that everyone can comply.
 No one is subject to any action by any government agency other than in accordance
with the law and the model litigant rules, no one is subject to any torture.
 The judicial system is independent, impartial, open and transparent and provides a
fair and prompt trial.
 All people are presumed to be innocent until proven otherwise and are entitled to
remain silent and are not required to incriminate themselves.
 No one can be prosecuted, civilly or criminally, for any offence not known to the law
when committed.
 No one is subject adversely to a retrospective change of the law.
Rule of Law and Indian Constitution: In India the Constitution is supreme. The preamble of
our Constitution clearly sets out the principle of rule of law. It is sometimes said that
planning and welfare schemes essentially strike at rule of law because they affect the
individual freedoms and liberty in many ways. But rule of law plays an effective role by
emphasizing upon fair play and greater accountability of the administration. It lays greater
emphasis upon the principles of natural justice and the rule of speaking order in
administrative process in order to eliminate administrative arbitrariness.

Important Components of Rule-of-Law Reforms:

a) Court Reforms - The efficiency of the courts is an important component in rule-of-
law reforms as the existence of a judiciary is a fundamental aspect of the rule of law.
b) Legal Rules - Another important rule-of-law reform goal is to build the legal rules. As
Fuller stated, “laws must exist.”
c) Institutional Encouragement on the Global Level
Rule of law is mostly believed to be a modern concept which is a gift of democracy however
it is something which is fundamental to the very basic idea of good governance. We need to

Page | 62
focus on the weaknesses and loopholes so that we can remove or plug them. Having said this,
we cannot resist ourselves from adding that it is not that only the three organs of the State are
to be blamed for the dismal state of rule of law in the society. Other actors like the media,
civil society and even the ordinary citizen cannot run away from their respective
responsibilities. Therefore it is equally important that all the actors of the society ensure for
the maintenance of Rule of Law.
Principle of Natural Justice: Concept of Natural justice: Natural Justice implies fairness,
reasonableness, equity and equality. Natural Justice is a concept of Common Law and it is
the Common Law world counterpart of the American concept of ‘procedural due process’.
Natural Justice represents higher procedural principles developed by judges which every
administrative agency must follow in taking any decision adversely affecting the rights of a
private individual.
Natural Justice meant many things to many writers, lawyers and systems of law. It is used
interchangeably with Divine Law, Jus Gentium and the Common Law of the Nations. It is a
concept of changing content.
The principles of natural justice are firmly grounded under various Article of the
Constitution. With the introduction of the concept of substantive and procedural due process
in Article – 21 of the Constitution all that fairness which is included in the principles of
natural justice can be read into Article – 21 when a person is deprived of his life and personal
liberty In other areas it is Article – 14 which incorporates the principles of natural justice.
Article – 14 applies not only to discriminatory class legislation on but also to arbitrary or
discriminatory State action. Because violation of natural justice results in arbitrariness
therefore violation of natural justice is violation of Equality Clause of Article – 14.
Therefore, now the principle of natural justice cannot be wholly disregarded by law because
this would violate the fundamental rights guaranteed by Articles – 14 and 21 of the
Constitution. There are mainly two Principles of Natural Justice.
These two Principles are: ‘Nemo judex in causa sua’. No one should be made a judge in his
own cause and the rule against bias. ‘Audi alteram partem’ means to hear the other party or
no one should be condemned unheard.
Rule against Bais
‘Bias’ means an operative prejudice whether conscious or unconscious in relation to a party
or issue. Therefore, the ‘Rule Against Bias’ strikes against those factors which may
improperly influence a judge in arriving at a decision in any particular case. The requirement
of this principle is that the judge must be impartial and must decide the case objectively on
the basis of the evidence on record. Therefore if a person, for whatever reason, cannot take
an objective decision on the basis of evidence on record he shall be said to be biased. A
decision which is a result of bias is a nullity and the trial is “Coram non-judice”. Inference of
bias, therefore, can be drawn only on the basis of factual matrix and not merely on the basis
of insinuations, conjectures and surmises. Bias manifests variously and may affect the
decision in a variety of ways.

Page | 63
Personal Bias: Personal Bias arises from a certain relationship equation between the
deciding authority and the parties which incline him/her unfavourably or other-wise on the
side of one of the parties before him/her. Such equation may develop out of varied forms of
personal or professional hostility or friendship. How-ever, no exhaustive list is possible.
In a case, the Supreme Court quashed the selection list prepared by the Departmental
Promotion Committee which had considered the confidential reports of candidates prepared
by an officer, who himself was a candidate for promotion. However, in order to challenge
administrative action successfully on the ground of ‘personal bias’, it is essential to prove
that there is a “reasonable suspicion of bias” or a “real likelihood of bias”. “Reasonable
suspicion” test looks mainly to outward appearance, and “real likelihood” test focuses on the
court’s own evaluation of possibilities; but in practice the tests have much. in common with
one another and in the vast majority of cases they will lead to the same result. In this area of
bias the real question is not whether a person was biased. It is difficult to prove the state of
mind of a person. Therefore, what the Courts see is whether there is reasonable ground for
believing that the deciding officer was likely to have been biased.
Pecuniary Bias: The judicial approach is unanimous and decisive on the point that any
financial interest, howsoever small it may be, would vitiate administrative action. The
disqualification will not be avoided by non-participation of the biased member in the
proceedings if he/she was present. The Supreme Court in a case quashed the decision of the
Textbook Selection Committee because some of its members were also authors of books
which were considered for selection when the decision was reached.
Subject Matter Bias: Those cases fall within this category where the deciding officer is
directly, or otherwise, involved in the subject matter of the case. Here again mere
involvement would not vitiate the administrative action unless there is a real likelihood of
bias. In a case the Supreme Court quashed the decision of the Andhra Pradesh Government,
nationalizing road transport on the ground that the Secretary of the Transport Department
who gave hearing was interested in the subject-matter.
Departmental Bias: The problem of ‘departmental bias’ is something which is inherent in
the administrative process, and if it is not effectively checked, it may negate the very concept
of fairness in the administrative proceeding. The problem of ‘departmental bias’ also arises in
a different context, when the functions of judge and prosecutor are combined in the same
department. It is not uncommon to find that the same department which initiates a matter also
decides it, therefore, at times departmental fraternity and loyalty militates against the concept
of fair hearing.
In a case, the Supreme Court quashed the notification of the Government which had
conferred powers of a Deputy Superintendent of Police on the General Manager, Haryana
Roadways in matters of inspection of vehicles on the ground of departmental bias. In this
case private bus operators had alleged that the General Manager of Haryana Roadways who
is a rival in business in the State, cannot be expected to discharge his duties in a fair and
reasonable manner he would be too lenient in inspecting the vehicles belonging to his own
department.

Page | 64
The reason for quashing the notification according to the Supreme Court was the conflict
between the duty and the interest of the department and the consequential erosion of public
confidence in administrative justice.
Preconceived Notion Bias: ‘Bias’ arising out of preconceived notions is a very delicate
problem of administrative law. On the one hand, no judge as human being is expected to sit
as a blank sheet of paper, on the other, preconceived notions would vitiate a fair trial.
Rule of Fair Hearing: The Rule simply implies that a person must be given an opportunity
to defend himself/herself. This principle is a ‘sine qua non’ of every civilized society.
Corollary deduced from this rule is “ qui aliquid statuerit, parte inaudita altera aeuquum licet
dixerit, haud aequum facerit” (he who shall decide anything without the other side having
been heard although he may have said what is right will not have done what is right). The
same principle was expressed by Lord Hewart when he said, “ It is not merely of some
importance, but is of Techniques of Law fundamental importance that justice should not only
be done, but should manifestly and undoubtedly be seem to be done’’.
Administrative difficulty in giving notice and hearing to a person cannot provide any
justification for depriving the person of opportunity of being heard. Furthermore, observance
of the rules of natural justice has no relevance to the fatness of the stake but is essentially
related to the demands of a given situation. Even if the legislature specifically authorizes an
administrative action without hearing, except in cases of recognised exceptions, then the law
would be violative of the principles of fair hearing as per Articles – 14 and 21 of the Indian
Constitution. However, refusal to participate in enquiry without valid reason cannot be
pleaded as violation of natural justice at a later stage.
Right to Notice: ‘Notice’ is the starting point of any hearing. Unless a person knows the
formulation of subjects and issues involved in the case, he/she cannot defend himself/herself.
It is not enough that the notice in a case be given, but it must be adequate also. The adequacy
of notice is a relative term and must be decided with reference to each case. But generally a
notice in order to be adequate must contain the following:
The test of adequacy of ‘Notice’ will be whether it gives sufficient information and material
so as to enable the person concerned to put up an effective defence. Therefore, the contents
of notice, persons who are entitled to ‘Notice’ and the time of giving ‘Notice’ are important
matters to ascertain any violation of the principles of natural justice. Sufficient time should
also be given to comply with the requirement of notice. Thus, when only 24 hours were given
to demolish a structure alleged in a dilapidated condition, Court held that notice is not proper.
In the same manner where notice contained only one charge, the person cannot be punished
for any other charge for which notice was not given. However, the requirement of notice will
not be insisted upon as a mere technical formality, when the concerned party clearly knows
the case against him and is not thereby prejudiced in any manner in putting up an effective
defence.
Right to Present Case and Evidence: The adjudicatory authority should afford reasonable
opportunity to the party to present his/her case. This can be done through writing or orally at
the discretion of the authority unless the statute under which the authority is functioning

Page | 65
directs otherwise. The requirements of natural justice are met only if opportunity to represent
is given in view of the proposed action.
The Right to Rebut Adverse Evidence: The right to rebut adverse evidence presupposes
that the person has been informed about the evidence against him. This does not, however,
necessitate the supply of adverse material in original in all cases. It is sufficient if the
summary of the contents of the adverse material in made available provided it is not
misleading. The opportunity to rebut evidence necessarily involves the consideration of two
factors: cross-examination and legal representation.
Cross-Examination: ‘Cross-examination’ is the most powerful weapon to elicit and establish
truth. However, the Courts do not insist on ‘cross-examination’ in administrative
adjudication unless the circumstances are such that in the absence of it the person cannot put
up an effective defence. Where the witnesses have orally deposed, the refusal to allow cross-
examination would certainly amount to violation of the principles of natural justice. In the
area of labour relations and disciplinary proceedings against civil servants also, the right to
cross-examination is included in the rule of fair hearing.
Legal Representation: Normally representation through a lawyer in any administrative
proceeding is not considered an indispensable part of the rule of natural justice as oral
hearing is not included in the meaning of fair hearing. This denial of legal representation is
justified on the ground that lawyers tend to complicate matters, prolong the proceedings and
destroy the essential informality of the proceedings. Factory Laws do not permit legal
representation, Industrial Dispute Acts allows it with the per-mission of the Tribunal and
some Statutes like Income Tax Act permit legal representation as a matter of right. However,
the Courts in India have held that in situations where the person is illiterate, or the matter is
complicated and technical, or expert evidence is on record or a question of law is involved, or
the person is facing a trained prosecutor, some professional assistance must be given to the
party to make his right to defend himself meaningful.
Report of the Inquiry to be shown to the Other Party: In many cases, especially in
matters relating to disciplinary proceedings, it happens that to conduct the inquiry, the action
is entrusted to someone else and on the basis of the report of the inquiry the action is taken
by the competent authority. Under these circumstances a very natural question arises is that
whether the copy of the report of the inquiry officer be supplied to the charged employee
before final decision is taken by the competent authority?
This question is important both from the constitutional and administrative law point of view.
One of the cardinal principles of the administrative law is that any action which has civil
consequences for any person cannot be taken without complying with the principles of
natural justice. Therefore, administrative law question in disciplinary matter has always been
whether failure to supply the copy of the Report of the Inquiry to the delinquent employee
before final decision is taken by the competent authority would violate the principles of
natural justice?
The findings on the merit recorded by the Inquiry Officer are intended merely to supply
appropriate material for the consideration of the government. Neither the findings nor the
recommendations are binding on the Disciplinary Authority.

Page | 66
The Inquiry Report along with the evidence recorded by the inquiry officer constitute the
material on which the government has ultimately to act. That is the only purpose of the
inquiry and the report which the inquiry officer makes as a result thereof.
The application of the principles of natural justice varies from case to case depending upon
the factual aspect of the matter. For example, in the matters relating to major punishment, the
requirement is very strict and full-fledged opportunity is envisaged under the statutory rules
before a person is dismissed removed or reduced in rank, but where it relates to only minor
punishment, a mere explanation submitted by the delinquent officer concerned meets the
requirement of principles of natural justice. In some matters oral hearing may be necessary
but in others, It may not be necessary.
Post Decisional Hearing: ‘Pre-Decisional Hearing’ is the standard norm of rule of audi
alteram partem. But ‘Post-Decisional Hearing’ affords an opportunity to the aggrieved person
to be heard. However, ‘post-decisional hearing’ should be an exception rather than being the
rule itself. It is acceptable in the following situations:
1. where the original decision does not cause any prejudice or detriment to the person
affected;
2. where there is urgent need for prompt action; and
3. where it is impracticable to afford pre-decisional hearing.
The idea of ‘Post-Decisional Hearing’ has been developed to maintain a balance between
administrative efficiency and fairness to the individual. This harmonizing tool was developed
by the Supreme Court in ‘Maneka Gandhi v. Union of India’. In this case on 1st June, 1976
the passport of the petitioner, a journalist, was impounded in public interest by an order of
the Government without furnishing any reasons therefore. The petitoner, being aggrieved by
such artbitary action of the government filed a petition before the Supreme Court under
Article-32 challenging the validity of the impoundment order. One of the contentions of the
government Techniques of Law was that the rule of audi alterm partem must be held to be
excluded because it may frustrate the very purpose of impounding the passport.
Reasoned Decisions or Speaking Orders: The third principle of Natural Justice which has
developed in course of time is that the order which is passed affecting the rights of an
individual must be a speaking order. This is necessary with a view to exclude the possibility
of arbitrariness in the action. A bald order requiring no reason to support it may be passed in
an arbitrary and irresponsible manner. It is a step in furtherance of achieving the end where
society is governed by Rule of Law.
The other aspect of the matter is that the party, against whom an order is passed, in fair play,
must know the reasons of passing such order. It has a right to know the reasons. The orders
against which appeals are provided must be speaking orders. Otherwise, the aggrieved party
will not be in a position to demonstrate before the appellate authority as to in which manner,
the order passed by the initial authorities is bad or suffers from illegality. The Supreme Court
has many times taken the view that non-speaking order amounts to depriving a party of a
right of appeal. It has also been held in some of the decisions that the appellate authority,
while reversing the order must assign reasons for reversal of the findings.

Page | 67
Exceptions to the Rule of Natural Justice: Application of the Principles of Natural Justice
can be excluded either expressly or by necessary implication subject to the provisions of
Articles 14 and 21 of the Constitution. Therefore, if the Statute, expressly or by necessary
implication, precludes the rules of natural justice it will not suffer invalidation on the ground
of arbitrariness.
Exclusion in Emergency: In exceptional cases of emergency where prompt preventive or
remedial action, is needed, the requirement of notice and hearing may be obviated.
Exclusion in Cases of Confidentiality: In a case the Supreme Court held that the
maintenance of surveillance register by the police is a confidential document. Neither the
person whose name is entered in the register nor any other member of the public can have
access to it.
Exclusion in case of routine matters: A student of the university was removed from the rolls
for unsatisfactory academic performance without giving any pre-decisional hearing. In the
same manner when the Commission cancelled the examination of the candidate because, in
violation of rules, the candidate wrote his roll number on every page of the answer, the
Supreme Court held that the principles of natural justice are not attracted. Court observed
that the rule of hearing is strictly construed in academic discipline as if this is ignored it will
not only be against public interest but would also erode social sense of fairness. However,
this exclusion shall not apply in case of disciplinary matters or where the academic body
permits non-academic circumstances.
Exclusion Based on Impracticability: Rules of Natural Justice may be excluded on the
grounds of administrative impracticability. For example in a case where the entire M.B.A.
entrance examination was cancelled by the university because of mass copying, the court
held that notice and hearing to all the candidates is not possible in this situation, which has
assumed national proportions. Thus the court sanctified the exclusion of the rules of natural
justice on the ground of administrative impracticability.
Natural justice may be excluded if its effect would be to stultify the action sought to be taken
or would defeat and paralyse the administration of the law. The Supreme Court in Maneka
Gandhi v. Union of India observed: “Where an obligation to give notice and opportunity to
be heard would obstruct the taking of prompt action, especially action of a preventive or
remedial nature, right of prior notice and opportunity to be heard may be excluded by
implication.”
Exclusion in Cases of Legislative Actions: Legislative action, may be plenary or
subordinate, is not subjected to the rules of natural justice because these rules lay down a
policy without reference to a particular individual.
Where No Right of the Person is Infringed: Where no right has been conferred on a person
by any statute nor any such right arises from common law, the principles of natural justice
are not applicable. The Supreme Court held that after the expiry of the prescribed period of
any limited tenancy, a person has no right to stay in possession and hence no right of his is
prejudicially affected which may warrant the application of the principles of natural justice.

Page | 68
Exclusion in Case of Statutory Exception or Necessity Techniques of Law: Disqualification
on the ground of bias against a person will not be applicable if he is the only person
competent or authorized to decide that matter or take that action.
Exclusion in Case of Contractual Arrangement: In a case the Supreme Court held the
principles of natural justice are not attracted in case of termination of an arrangement in any
contractual field. Termination of an arrangement/agreement is neither a quasi-judicial nor an
administrative act so that the duty to act judicially is not attracted.
Delegated Legislation: One of the most significant developments of the present century is
the growth in the legislative powers of the executives. The development of the legislative
powers of the administrative authorities in the form of the delegated legislation occupies very
important place in the study of the administrative law. We know that there is no such general
power granted to the executive to make law it only supplements the law under the authority
of legislature.
Apart from other considerations the inability of the Parliament to supply the necessary
quantity and quality legislation to the society may be attributed to the following reasons:
I. Certain emergency situations may arise which necessitate special measures. In such
cases speedy and appropriate action is required. The Parliament cannot act quickly
because of its political nature and because of the time required by the Parliament to
enact the law.
II. The bulk of the business of the Parliament has increased and it has no time for the
consideration of complicated and technical matters. The Parliament cannot provide
the society with the requisite quality and quantity of legislation because of lack of
time. Most of the time of the Parliament is devoted to political matters, matters of
policy and particularly foreign affairs.
III. Certain matters covered by delegated legislation are of a technical nature which
require handling by experts. In such cases it is inevitable that powers to deal with
such matters is given to the appropriate administrative agencies to be exercised
according to the requirements of the subject matter. "Parliaments" cannot obviously
provide for such matters as the members are at best politicians and not experts in
various spheres of life.
IV. Parliament while deciding upon a certain course of action cannot foresee the
difficulties, which may be encountered in its execution. Accordingly various statutes
contain a 'removal of difficulty clause' empowering the administration to remove such
difficulties by exercising the powers of making rules and regulations. These clauses
are always so worded that very wide powers are given to the administration.
V. The practice of delegated legislation introduces flexibility in the law. The rules and
regulations, if found to be defective, can be modified quickly. Experiments can be
made and experience can be profitability utilized.
However the attitude of the jurists towards delegated legislation has not been unanimous. The
practice of delegated legislation was considered a factor, which promoted centralization.
Delegated Legislation was considered a danger to the liberties of the people and a devise to
place despotic powers in few hands. It was said that delegated legislation preserved the
outward show of representative institutions while placing arbitrary and irresponsible power

Page | 69
in new hands. But the tide of delegated legislation was high and these protests remained
futile.
Nature and Scope of delegated legislation: Delegated legislation means legislation by
authorities other than the Legislature, the former acting on express delegated authority and
power from the later. Delegation is considered to be a sound basis for administrative
efficiency and it does not by itself amount to abdication of power if restored to within proper
limits. The delegation should not, in any case, be unguided and uncontrolled. Parliament and
State Legislatures cannot abdicate the legislative power in its essential aspects which is to be
exercised by them. It is only a nonessential legislative function that can be delegated and the
moot point always lies in the line of demarcation between the essential and nonessential
legislative functions.
The essential legislative functions consist in making a law. It is to the legislature to formulate
the legislative policy and delegate the formulation of details in implementing that policy.
Discretion as to the formulation of the legislative policy is prerogative and function the
legislature and it cannot be delegated to the executive.
The power delegated to the Executive to modify any provisions of an Act by an order must
be within the framework of the Act giving such power. The power to make such a
modification no doubt, implies certain amount of discretion but it is a power to be exercised
in aid of the legislative policy of the Act and cannot i) travel beyond it, or ii) run counter to
it, or iii) certainly change the essential features, the identity, structure or the policy of the
Act.
Under the constitution of India, articles 245 and 246 provide that the legislative powers shall
be discharged by the Parliament and State legislature. The delegation of legislative power
was conceived to be inevitable and therefore it was not prohibited in the constitution. Further,
Articles 13(3)(a) of the Constitution of India lays down that law includes any ordinances,
order bylaw, rule regulation, notification, etc. Which if found in violation of fundamental
rights would be void. Besides, there are number of judicial pronouncements by the courts
where they have justified delegated legislation.
Administrative Discretion and its Judicial Control: Discretion in layman’s language
means choosing from amongst the various available alternatives without reference to any
predetermined criterion, no matter how fanciful that choice may be. But the term ‘Discretion’
when qualified by the word ‘administrative’ has somewhat different overtones. ‘Discretion’
in this sense means choosing from amongst the various available alternatives but with
reference to the rules of reason and justice and not according to personal whims. Such
exercise is not to be arbitrary, vague and fanciful, but legal and regular.
The problem of administrative discretion is complex. It is true that in any intensive form of
government, the government cannot function without the exercise of some discretion by the
officials. But it is equally true that absolute discretion is a ruthless master. Discretionary
power by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in
tightening the procedure and not in abolishing the power itself.

Page | 70
There is no set pattern of conferring discretion on an administrative officer. Modern drafting
technique uses the words ‘adequate’, ‘advisable’, ‘appropriate’, ‘beneficial’, ‘reputable’,
‘safe’, ‘sufficient’, ‘wholesome’, ‘deem fit’, ‘prejudicial to safety and security’,
‘satisfaction’, belief’, ‘efficient’, ‘public purpose’, etc. or their opposites. It is true that with
the exercise of discretion on a case-to-case basis, these vague generalizations are reduced
into more specific moulds, yet the margin of oscillation is never eliminated. Therefore, the
need for judicial correction of unreasonable exercise of administrative discretion cannot be
overemphasized.
Judicial Behavior and Administrative Discretion in India: Though courts in India have
developed a few effective parameters for the proper exercise of discretion, the conspectus of
judicial behavior still remains halting, variegated and residual, and lacks the activism of the
American courts. Judicial control mechanism of administrative discretion is exercised at two
stages: I) at the stage of delegation of discretion; II) at the stage of the exercise of discretion.
(1) Control at 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. In certain situations, the statute though it
does not give discretionary power to the administrative authority to take action, may give
discretionary power to frame rules and regulations affecting the rights of citizens. The court
can control the bestowal of such discretion on the ground of excessive delegation.
(2) Control at the stage of the exercise of discretion - In India, unlike the USA, there is no
Administrative Procedure Act providing for judicial review on the exercise of administrative
discretion. Therefore, the power of judicial review arises from the constitutional
configuration of courts. Courts in India have always held the view that judge-proof discretion
is a negation of the rule of law. Therefore, they have developed various formulations to
control the exercise of administrative discretion.
In India the administrative discretion, thus, may be reviewed by the court on the following
grounds:
I. Abuse of Discretion: Now a day, the administrative authorities are conferred wide
discretionary powers. There is a great need of their control so that they may mot be
misused. The discretionary power is required to be exercised according to law. When
the mode of exercising a valid power is improper or unreasonable there is an abuse of
power. In the following conditions the abuse of the discretionary power is inferred: -
i. Use for 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.
ii. Malafide or Bad faith: - 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. Malafide (bad
faith) may be taken to mean dishonest intention or corrupt motive. In relation to the
exercise of statutory powers it may be said to comprise dishonesty (or fraud) and

Page | 71
 malice. A power is exercised fraudulently. If its repository intends to achieve an
object other than that for which he believes the power to have been conferred. The
intention may be to promote another public interest or private interest.
iii. Irrelevant consideration: - The decision of the administrative authority is declared
void if it is not based on relevant and germane considerations. The considerations will
be irrelevant if there is no reasonable connection between the facts and the grounds.
iv. Leaving out relevant considerations: - The administrative authority exercising the
discretionary power is required to take into account all the relevant facts. If it leaves
out relevant consideration, its action will be invalid.
v. Mixed consideration: - Sometimes the discretionary power is exercised by the
authority on both relevant and irrelevant grounds. In such condition the court will
examine whether or not the exclusion of the irrelevant or non-existent considerations
would have affected the ultimate decision. If the court is satisfied that the exclusion
of the irrelevant considerations would have affected the decision, the order passed by
the authority in the exercise of the discretionary power will be declared invalid but if
the court is satisfied that the exclusion of the irrelevant considerations would not be
declared invalid.
vi. Unreasonableness: - The Discretionary power is required to be exercised by the
authority reasonably. If it is exercised unreasonably it will be declared invalid by the
court. Every authority is required to exercise its powers reasonably. In a case Lord
Wrenbury has observed that a person in whom invested a discretion must exercise his
discretion upon reasonable grounds. Where a person is conferred discretionary power
it should not be taken to mean that he has been empowered to do what he likes merely
because he is minded to do so. He is required to do what he ought and the discretion
does not empower him to do what he likes. He is required, by use of his reason, to
ascertain and follow the course which reason directs. He is required to act reasonably.
vii. Colourable Exercise of Power: - Where the discretionary power is exercised by the
authority on which it has been conferred ostensibly for the purpose for which it has
been given but in reality for some other purpose, It is taken as colourable exercise of
the discretionary power and it is declared invalid.
viii. Non-compliance with procedural requirements and principles of natural justice: - If
the procedural requirement laid down in the statute is mandatory and it is not
complied, the exercise of power will be bad. Whether the procedural requirement is
mandatory or directory is decided by the court. Principles of natural justice are also
required to be observed.
ix. Exceeding jurisdiction: - The authority is required to exercise the power with in the
limits or the statute. Consequently, if the authority exceeds this limit, its action will
be held to be ultra vires and, therefore, void.

II. Failure to exercise Discretion: In the following condition the authority is taken to
have failed to exercise its discretion and its decision or action will be bad.
i. Non-application of mind: - Where an authority is given discretionary powers it is
required to exercise it by applying its mind to the facts and circumstances of the case
in hand. If he does not do so it will be deemed to have failed to exercise its discretion
and its action or decision will be bad.

Page | 72
 ii. 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. In such condition the
authority purports to act on its own but in substance the power is not exercised by it
but by the other authority. The authority entrusted with the powers does not take
action on its own judgement and does not apply its mind. For example in
Commissioner of Police v. Gordhandas the Police Commissioner empowered to grant
license for construction of cinema theatres granted the license but later cancelled it on
the discretion of the Government. The cancellation order was declared bad as the
Police Commissioner did not apply his mind and acted under the dictation of the
Government.
iii. Imposing fetters on the exercise of discretionary powers: - 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. The authority
entrusted with the discretionary power is required to exercise it after considering the
individual cases and if the authority imposes fetters on its discretion by adopting
fixed rule of policy to be applied rigidly to all cases coming before it, it will be taken
as failure to exercise discretion and its action or decision or order will be bad.
The doctrine of legitimate expectation is to be confined mostly to right of fair hearing before
a decision, which results in negativing a promise, or withdrawing an undertaking is taken.
The doctrine does not give scope to claim relief straightaway from the administrative
authorities as no crystallized right as such is involved. The protection of such legitimate does
not require the fulfillment of the expectation where an overriding public interest requires
otherwise.
A case of legitimate expectation would arise when a body by representation or by past
practice aroused expectation, which it would be within its powers to fulfill. The protection is
limited to that extent and a judicial review can be within those limits. A person, who bases
his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that
there is foundation and thus he has locus standi to make such a claim.
Administrative Adjudication and Administrative Tribunals: There are a large number of
laws which charge the Executive with adjudicatory functions, and the authorities so charged
are, in the strict scene, administrative tribunals. Administrative tribunals are agencies created
by specific enactments. Administrative adjudication is term synonymously used with
administrative decisionmaking. The decision-making or adjudicatory function is exercised in
a variety of ways. However, the most popular mode of adjudication is through tribunals.
The main characteristics of Administrative Tribunals are as follows:

 Administrative Tribunals is the creation of a statute.

 An Administrative Tribunals is vested in the judicial power of the State and thereby
performance quasi-judicial functions as distinguished form pure administrative
functions.
 Administrative Tribunals is bound to act judicially and follow the principles of
natural justice.

Page | 73
  It has some of the trapping of a court and are required to act openly, fairly and
impartially.
 An administrative Tribunal is not bound by the strict rules of procedure and evidence
prescribed by the civil procedure court.
Structure of the Tribunals: The Administrative Tribunals Act 1985 provides for the
establishment of one Central Administrative Tribunal and a State Administrative Tribunal for
each State like Haryana Administrative Tribunal etc; and Joint Administrative Tribunal for
two or more states. The Act provides for setting up of State Administrative Tribunals to
decide the services cases of state government employees. There is a provision for setting up
of Joint Administrative Tribunal for two or more states. On receipt of specific requests from
the Government of Orissa, Himachal Pradesh, Karnataka, Madhaya Pradesh and Tamil
Naidu, Administrative Tribunals have been set up, to look into the service matters of
concerned state government employees. A joint Tribunal is also to be set up for the state of
Arunachal Pradesh to function jointly with Guwahati bench of the Central Administrative
Tribunal.
The Administrative Tribunals have the authority to issue writs. In disposing of the cases, the
Tribunal observes the canons, principles and norms of ‘natural justice’. The Act provides that
“a Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure
1908, but shall be guided by the principles of natural justice. The Tribunal shall have power
to regulate its own procedure including the fixing of the place and times of its enquiry and
deciding whether to sit in public of private”. A Tribunal has the same jurisdiction, powers
and authority, as those exercised by the High Court, in respect of “Contempt of itself” that is,
punish for contempt, and for the purpose, the provisions of the contempt of Courts Act 1971
have been made applicable. This helps the Tribunals in ensuring that they are taken seriously
and their orders are not ignored.
The Tribunal, may, however admit any application even after one year, if the applicant can
satisfy the Tribunal that he/she had sufficient cause for not making the application within the
normal stipulated time. Every application is decided by the Tribunal or examination of
documents, written representation and at times depending on the case, on hearing of oral
arguments. The applicant may either appear in person or through a legal practitioner who will
present the case before the Tribunal. The Administrative Tribunals are not bound by the
procedure laid down in the code of Civil Procedure 1908. They are guided by the principles
of natural justice. Since these principles are flexible, adjustable according to the situation,
they help the Tribunals in molding their procedure keeping in view the circumstances of a
situation.
Judicial Control of Administrative Action: It is admitted fact that the administrative
authorities now a days are conferred on wide administrative powers which are required to be
controlled otherwise they will become new despots. The Administrative Law aims to find out
the ways and means to control the powers of the administrative authorities. In the context of
increased powers for the administration, judicial control has become an important area of
administrative law, because Courts have proved more effective and useful than the
Legislature or the administration in the matter. “It is an accepted axiom” observed Prof. Jain
& Jain that “the real kernel of democracy lies in the Courts enjoying the ultimate authority to

Page | 74
restrain all exercise of absolute and arbitrary power. Without some kind of judicial power to
control the administrative authorities, there is a danger that they may commit excess and
degenerate into arbitrary authorities, and such a development would be inimical to a
democratic Constitution and the concept of rule of law. “
Judicial Control (Judicial Remedies). Judiciary has been given wide powers for controlling
the administrative action. The Courts have been given power to review the acts of the
legislature and executive (administration) and declare them void in case they are found in
violation of the provisions of the Constitution.
In India the modes of judicial control of administrative action can be conveniently grouped
into three heads:
a. Constitutional;
b. Statutory;
c. Ordinary or Equitable.
Judicial Review and its Exclusion: Judicial review, in short, is the authority of the Courts to
declare void the acts of the legislature and executive, if they are found in the violation of the
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. The doctrine of judicial review has been originated and developed by
the American Supreme Court, although there is no express provision in the American
Constitution for the judicial review. In Marbury v. Madison the Supreme Court made it clear
that it had the power of judicial review. In England there is supremacy of Parliament and
therefore, the Act passed or the law made by Parliament cannot be declared to be void by the
Court. The function of the judiciary is to ensure that the administration or executive function
conforms to the law. The Constitution of India expressly provides for judicial review. Like
U.S.A., there is supremacy of the Constitution of India. The Constitution of India, unlike the
American Constitution expressly provides for the judicial review. The limits laid down by the
Constitution may be express or implied. Articles 13, 245 and 246, etc. provide the express
limits of the Constitution.
The provisions of Article 13 are: Article 13 (1) provides that all laws in force in the territory
of India immediately before the commencement of the Constitution of India, in so far as they
are inconsistent with the provision of Part III dealing with the fundamental rights shall, to the
extent of such inconsistency, be void. Article 13 (2) provides the State Shall not make any
law which takes away or abridges the fundamental rights and any law made in contravention
of this clause shall, to the extent of the contravention, be void. Article 245 makes it clear that
the legislative powers of Parliament and of the State Legislatures are subject to the provisions
of the Constitution.
The doctrine of ultra vires has been proved very effective in controlling the delegation of
legislative function by the legislature and for making it more effective it is required to be
applied more rigorously. Sometimes the Court’s attitude is found to be very liberal. Supreme
Court has held that the legislature delegating the legislative power must lay down the
legislative policy and guideline regarding the exercise of essential legislative function, which
consists of the determination of legislative policy and its formulation as a rule of conduct.

Page | 75
The Court is not against the vesting of the discretionary power in the executive, but it expects
that there would be proper guidelines or normal for the exercise of the power. The Court
interferes when the uncontrolled and unguided discretion is vested in the executive or
administrative authorities or the repository of the power abuses its discretionary power. The
judicial review is not an appeal from a decision but a review of the manner in which the
decision has been made. The judicial review is concerned not with the decision but with the
decision making process.
The Supreme Court has expressed the view that in the exercise of the power of judicial
review the Court should observe the self-restraint and confine itself the question of legality.
Its concern should be:
1. Whether a decision making authority exceeding its power?
2. Committed an error of law.
3. Committed a breach of the rules of natural justice.
4. Reached a decision which no reasonable tribunal would have reached, or
5. Abused its power.
It is not for the Court to determine whether a particular policy or a particular decision taken
in the furtherance of the policy is fair. The Court is only concerned with the manner in which
those decisions have been taken. The extents of the duty to act fairly vary from case to case.
The aforesaid grounds may be classified as under: (i) Illegality (ii) Irrationality (iii)
Procedural impropriety. Mala fide exercise of power is taken as abuse of power: Mala fides
may be taken to mean dishonest intension or corrupt motive. In relation to the exercise of
statutory power it may be said to comprise dishonesty (or fraud) and malice. A power is
exercised fraudulently. If its repository intends to achieve an object other than that for which
he believes the power to have been conferred. The intention may be to promote another
public interest or private interest. The burden to prove mala fide is on the person who wants
the order to be quashed on the ground of mala fide.

Page | 76
 MODULE – III

INDIAN JUDICIAL AND

LEGAL SYSTEM

Page | 77
Page | 78
 MODULE III: INDIAN JUDICIAL AND LEGAL SYSTEM

The judiciary is that branch of the government that interprets the law, settles
disputes and administers justice to all citizens. The judiciary is considered
the watchdog of democracy, and also the guardian of the Constitution. For
democracy to function effectivel y, it is imper ative to have an impartial and
independent judiciary. In a federal system, the judiciary has to perform an
additionall y important role as the guardian of the constitution and the arbiter
of disputes between the centre and states . It acts as an independent and
impartial umpire between the central government and state governments as
well as among the states. The Constitution provides for a number of
provisions that ensure that the independence of the judiciary is maintained
and protected.

Historical Evolution of the Indian Legal System

Laws in Ancient India were primarily regulated through established customs and religious
norms many of which have found their way into the current Indian legal system.
Hindu Law- Dharma: 'Dharma' in Sanskrit means righteousness, duty and law. Dharma is
wider in meaning than what we understand as law today. Dharma consists of both legal
duties and religious duties. It not only includes laws and court procedures, but also a wide
range of human activities like ritual purification, personal hygiene regimes, and modes of
dress. Dharma provided the principal guidance by which one endeavored to lead his life.
There are three sources of Dharma or Hindu law. The first source is the Veda or Vedas. The
four primary Vedas are the Rigveda, Yajurveda, Samaveda, and Atharvaveda. They are
collections of oral texts of hymns, praises, and ritual instructions. Veda literally means
revelation. The second source is called Smriti, which literarily means 'as remembered' and it
refers to tradition. They are the humanly authored written texts that contain the collected
traditions. The Dharmashastra texts are religion and law textbooks and form an example of
the Smriti tradition. Since only a few scholars had access to direct knowledge or learning
from the Vedas, Smritis are the written texts to teach others. These texts are considered to be
authoritative because they are believed to include duties and practices that must have been
sourced from the Vedas and they are accepted and transmitted by humans who know the
Vedas. In this way, a connection is made between the Veda and smriti texts that make the
latter authoritative. The third source of dharma is called the 'âchâra', which means
customary law. Âchras are the norms of a particular community or group. Just like the smriti,
Achras finds its authority by virtue of its connection with the Vedas. Where both the Vedas
and the Smritis are silent on an issue, a learned person who knows the Vedas can consider the
norms of the community as dharma and perform it. This way, the Vedic connection is made
between the Veda and the âchâra, and the âchâra becomes authoritative.

Indian Judiciary: Pre and Post-Independence

As discussed earlier, the common law system is a system of law based on recorded judicial
precedents- came to India with the British East India Company. The company was granted

Page | 79
charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and
Calcutta (now Chennai, Mumbai and Kolkata respectively). Judicial functions of the
company expanded substantially after its victory in Battle of Plassey and by 1772 company’s
courts expanded out from the three major cities.
In the process, the company slowly replaced the existing Mughal legal system in those parts.
Following the First War of Indian Independence in 1857, the control of company territories
in India passed to the British Crown. Being part of the empire, India saw the next big shift in
its legal and judicial system. Supreme courts were established replacing the existing mayoral
courts. These courts were converted to the first High Courts through letters of patents
authorized by the Indian High Courts Act passed by the British parliament in 1862.
Superintendence of lower courts and enrolment of law practitioners were deputed to the
respective high courts.10
The application of common law in India evolved during the 19thcentury when certain laws
were codified and proper courts were being established under the Charter of 1861. Before the
19th century, the Supreme Court was established and applied the laws of England as far as
applicable to India. Later in the 20th century, when the Federal court was established, it also
applied the laws of England in spite of many laws that were codified like Indian Penal Code
1862, Civil Procedure Code, 1908 but before independence common law was the major
source of framing laws in India. India after independence adopted the parliamentary system
of government which is followed in Britain. The Constitution of India is said to be a replica
of Govt of India Act, 1935.
Many other laws that were made during the British rule still continue to exist even after
independence like the Indian Contract Act, 1872, Indian Partnership Act, 1932, Sales of
Goods Act, 1930, Indian Penal Code, 1862, etc. Although these laws have been amended
over the years, it can be stated that the Common Law System of Britain laid the foundation of
the Indian legal system. The constitution of India is heavily influenced by the government of
India act 1935.The concept of rule of law, judicial precedent and other principles of public
law had been introduced in India due to common law. The doctrine of precedent was
introduced in the 18th century through the Royal Charter.
Functions, Importance and an Essential Quality of Judiciary: The Judiciary plays the
important role of not only interpreting and applying the law but also adjudicating upon
controversies between one citizen and another and between a citizen and the state. It is the
function of the courts to maintain the rule of law in the country and to assure that the
government runs according to law.
Functions of Judiciary and Its Importance:

1. To Give Justice to the people: The first and foremost function of the judiciary is to
give justice to the people, whenever they may approach it. It awards punishment to
those who after trial are found guilty of violating the laws of the state or the rights of
the people.

10
http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom/

Page | 80
 The aggrieved citizens can go to the courts for seeking redress and compensation.
They can do so either when they fear any harm to their rights or after they have
suffered any loss. The judiciary fixes the quantity and quality of punishment to be
given to the criminals. It decides all cases involving grant of compensations to the
citizens.

2. Interpretation and Application of Laws: One of the major functions of the

judiciary is to interpret and apply laws to specific cases. In the course of deciding the
disputes that come before it, the judges interpret and apply laws. Every law needs a
proper interpretation for getting applied to every specific case. This function is
performed by the judges. The law means what the judges interpret it to mean.

3. Role in Law-making: The judiciary also plays a role in law-making. The decisions
given by the courts really determine the meaning, nature and scope of the laws passed
by the legislature. The interpretation of laws by the judiciary amounts to law-making
as it is these interpretations which really define the laws.

Moreover, ‘the judgements delivered by the higher courts, which are the Courts of
Records, are binding upon lower courts. The latter can decide the cases before them
on the basis of the decisions made by the higher courts. Judicial decisions constitute a
source of law.

4. Equity Legislation: Where a law is silent or ambiguous, or appears to be inconsistent

with some other law of the land, the judges depend upon their sense of justice,
fairness, impartiality, honesty and wisdom for deciding the cases. Such decisions
always involve law-making. It is usually termed as equity legislation.

5. Protection of Rights: The judiciary has the supreme responsibility to safeguard the
rights of the people. A citizen has the right to seek the protection of the judiciary in
case his rights are violated or threatened to be violated by the government or by
private organisations or fellow citizens. In all such cases, it becomes the
responsibility of the judiciary to protect his rights of the people.

6. Guardian of the Constitution: The judiciary acts as the guardian of the Constitution.
The Constitution is the supreme law of the land and it is the responsibility of the
judiciary to interpret and protect it. For this purpose the judiciary can conduct judicial
review over any law for determining as to whether or not it is in accordance with the
letter and spirit of the constitution. In case any law is found ultra vires
(unconstitutional), it is rejected by the judiciary and it becomes invalid for future.
This power of the court is called the “Power of Judicial Review”.

7. Power to get its Decisions and Judgments enforced: The judiciary has the power
not only to deliver judgments and decide disputes, but also to get these enforced. It
can direct the executive to carry out its decisions. It can summon any person and
directly know the truth from him.

Page | 81
In case any person is held:

(i) Guilty of not following any decision of the court, or

(ii) Of acting against the direction of the court, or
(iii) Misleading the court, or
(iv) Of not appearing before the court in a case being heard by it, the Court has the
power to punish the person for the contempt of court.

8. Special Role in a Federation: In a federal system, the judiciary has to perform an

additionally important role as the guardian of the constitution and the arbiter of
disputes between the centre and states. It acts as an independent and impartial umpire
between the central government and state governments as well as among the states.
All legal centre-state disputes are settled by the judiciary.

9. Running of the Judicial Administration: The judiciary is not a department of the

government. It is independent of both the legislature and the executive. It is a separate
and independent organ with its own organisation and officials. It has the power to
decide the nature of judicial organisation in the state. It frames and enforces its own
rules.

These govern the recruitment and working of the magistrates and other persons
working in the courts. It makes and enforces rules for the orderly and efficient
conduct of judicial administration.

10. Advisory Functions: Very often the courts are given the responsibility to give
advisory opinions to the rulers on any legal matter. For example, the President of
India the power to refer to the Supreme Court any question of law or fact which is of
public importance.

11. To Conduct Judicial Inquiries: Judges are very often called upon to head Enquiry
Commissions constituted to enquire into some serious incidents resulting from the
alleged errors or omissions on the part of government or some public servants.
Commissions of enquiry headed by a single judge are also sometimes constituted for
investigating important and complicated issues and problems.

Appointment, Transfer and Removal of Judges

The appointment and transfer of Judges tends to being influenced by the executive even
though we advocate for independence of judiciary. Article 124 of the Constitution provides
for the appointment of the Supreme Court judges by the President upon due consultation with
such of the judges of the Supreme Court and High Court as the President may deem
necessary. The proviso to the article further states that in case of appointment of a judge
other than the Chief Justice, the Chief Justice shall always be consulted. Similarly the
President shall appoint every judge of the High Court upon due consultation with the CJI, the
State Governor and the Chief Justice of that High Court.
The requirement of consultation is compulsory and does not mean that the President has to
abide by their decisions but nevertheless the President is under a duty to deliberate on the

Page | 82
issue with respective authorities. In S.P. Gupta v. Union of India11, also known as the Judges
Transfer case, the majority held that no primacy need to be given to the opinion of the
Supreme Court of India but rather it is the executive which has the primacy in the given
matter. However in the matters of appointment of the judges of the High Court; the opinion
of the CJI should be given greatest significance. The Supreme Court unanimously agreed
with the meaning of the term consultation in Article 212, 22, 124(1)* of the constitution. In
the above, Supreme Court Advocates on Record case, the Supreme Court held that the Chief
Justice shall have to consult two other senior most Judges of the Supreme Court before
sending his opinion. The Supreme Court laid down the following guidelines:
a) Individual initiation of high constitutional functionaries in the matter of appointment
of Judges reduced to minimum. It gives privacy to the Chief Justice of India but puts
a check on him to consult at least two of his senior most colleagues.
b) Constitutional functionaries must act collectively in Judicial Appointments.
c) Appointment of Chief Justice of India by seniority only.
d) No Judge can be appointment by the Union Government without Consulting the Chief
Justice of India.
The Supreme Court, while upholding the Independence of Judiciary in appointment of
Judges of the Supreme Court and High Court, on the basis of the term “consultation” under
Article 217(1)* and 222 of the constitution in the formation of the opinion of the Chief
Justice of India after consultation has to be sent to the President. Two senior most Judges of
the Apex Court have to assist the Chief Justice of India to form an opinion. However, the
question regarding political interference in the matter of appointment of Supreme Court and
High Court Judges, still exists and after, the court has been striving to maintain the
Independence. But in 93rd Constitutional Amendment Act of 2005 provides for the
establishment of National Judicial Commission.
The provisions of the 93rd Amendment are featured as follows:
a) Constitution of the commission to be chaired by the Honorable Chief Justice of India
with two senior most Judges of the Supreme Court, Minister In-charge of law and
Justice, Union of India , and an eminent citizen to be nominated by the President, as
its member.
b) Powers of the Commission regarding appointment of the Supreme Court and High
Court Judges, and matters incidental thereto.
c) Powers of the Commission to take action in cases of complaints against Judges and
the matters incidental thereto.
d) Association of the Chief Minister of the concerned state in the matter of appointment
of High Court Judges.
The Legislature has been conferred with powers for the constitution to enact laws at the same
time, the constitution also provides for certain rights to the citizens. The Independence of
Judiciary has been provided by the constitution to maintain of Judiciary has been provided by
the constitution to maintain balance between the legislative-powers and the rights of the
citizens. The legislature must understand that it cannot indirectly interfere with the

11
AIR1982 SC 149

Page | 83
Independence of the Judiciary and its functioning, which is against the spirit of the
constitution.
The Government of India through the 93rd Amendment provides to constitute a National
Judicial Commission in view of the allegations of corruption and misuse of official position,
being mode against sitting Judges of different High Courts. The Act provides to deal with the
matters relating to Appointment, Transfer of Judges and inquiries into the complaints against
the Judges and other incidental matters. The Government of India proposes to establish the
National Judicial Commission, so that the Commission comprising eminent persons without
any Executive or Political influences. But the Judiciary is expressing a grouse by saying that
under the pretext of constituting National Judicial Commission, The Executive is trying to
interfere with the Independence of the Judiciary and the so-called nominated persons in the
National Judicial Commission, pliable to the Executive and may Act according to the wishes
of the Executive. But the Independence of the Judiciary as contemplated in the constitution is
without any interference in any manner what so ever. The Independence of Judiciary is a
basic structure of the constitution as held by the Supreme Court in Kesavananda Bharathi
Vs State of Kerala12.
Visualizing the present situation, the Judiciary in India, which is the protector and guarantor
of Fundamental Rights of the citizens, is to be allowed to function independently without any
interference. In this regard, a mute question raises that whether the action of the Executive in
respect of constitution of the courts, appointment of Judges, laying down their conditions of
service including salary, age of retirement etc., whether this amounts to interfering with the
Independence of Judiciary while the Judges are not answerable to any Superior Authority.
While exercising their power of delivering Judgments in the course of administration of
Justice? However, once an office or a post or an Institution is created or constituted, it must
be placed under the control of some authority so that the actions of the persons employed can
be supervised or controlled. But, in Indian Constitution, once the courts are constituted and
the Judges are appointed, no external influence over exerted or imposed in the course of
deliverance of Judgments, either from the legislature or from the executive. But on the other
hand, it is for the Judges themselves, who are allured by the influences corruption, malice,
bias, favour etc, because the Judges are also human beings. In India, the Judges are
influenced only by their vices or weaknesses from among themselves and no external
inferences ever entered into the citadels of Independence of Judiciary.

Independence of Judiciary
Justice if considered to be one of the most divine attributes. Proper effectiveness of any rules
and regulations can be witnessed by its proper execution by upright, honest and impartial
authority. Therefore by independence of judiciary one means that the judges should exercise
unfettered discretion in the interpretation of laws and administration of justice and for
ensuring the same they should remain uninfluenced in the discharge of their duties. The
maintenance of the independence and the impartiality of the judiciary both in letter and spirit
is the basic condition of the rule of law. This helps in protecting the people from arbitrary
interference and oppression of one single person. Independence of Judiciary is ensured in the
following manner:

12
AIR1973 SC 1461

Page | 84
a) Mode of Appointment of Judges - Judges are often selected by method whose
selection criteria lay emphasis on the thorough knowledge of law and integrity and
honesty.
b) Judicial Tenure- Compulsory retirement at a particular age.
c) Removal by Procedure established by law
d) Salaries of Judges: Fixed Salary under the Constitution

Hierarchy of Indian Courts: The main feature of the Indian judiciary system is the
hierarchical structure of courts. The courts are structured with very strong judiciary and
hierarchical system as per the powers bestowed upon them. This system is strong enough to
make limitation of court with its jurisdiction and exercise of the power. The Supreme Court
of India is placed at the top of the hierarchical position followed by High Courts in the
regional level and lower courts at micro level with the assignment of power and exercising of
the same for the people of India.

1. Supreme Court of India

The Supreme Court of India is the highest level of court of Indian juridical system
which was established as per Part V, Chapter IV of the Constitution of India which
endorses the concept of Supreme Court as the Federal Court to play the role of the
guardian of the esteemed constitution of India with the status of the highest level of
court in the status of appeal cases.

Page | 85
1.1.Constitution Regulation of Supreme Courts: As conferred by Articles 124 to 147 of
Indian Constituency, the jurisdiction and composition of the Supreme Court is being
fixed. This court is primarily of the status of appellate court. This court is accepting the
appeals of cases which are being heard in the High courts situated in different states and
union territories with dissatisfaction of related parties. This court also accepts writ
petitions with the suspected occurrence of activities which may infer about violation of
human rights and subsequent petitions are accepted to hear and judge the consequences
of such happenings.
These types of petitions are accepted under Article 32 of Indian constitution. This
article confers the right to ensure remedies through constitution. This court also hears
about such serious issues which need to be attended with immediate attention.

1.2 History: The Supreme Court started its operations on 28th January 1950 with the
inaugural sitting, the day since when the constitution of independent India had been
effectively applicable. The court had already taken care of more than 24,000
judgments as per report of the Supreme Court.

1.3 Structure and Application: This court is comprised of the Chief Justice along with
30 other judges to carry on the operation of the court. The proceeding of the Supreme
Court is being heard only in the language of English. The Supreme Court is governed
by the Supreme Court Rules which was published in the year 1966. The same had
been fixed under the Article 145 of the Constitution of India to ensure the regulation
of procedures and practices of the Supreme Court. This article is passing through the
process of upgrading with the presently enforced Article as per the Supreme Court
Rules, 2013.

2. High Court of India

2.1 Constitution: High Courts are second Courts of Importance of the democracy of
India. They are run by Article 141 of the Constitution of India. They are governed by
the bindings conferred by the Supreme Court of India so far judgments and orders are
concerned. The Supreme Court of India is the highest level of courts and is
responsible for fixing the guidance to the High Courts set by precedence. High courts
are the types of courts which are instituted as the courts powered by constitution with
the effect of Article 214 Part IV Chapter V of the Indian Constitution. There are 24
high courts in India taking care of the regional juridical system of India out of which
Kolkata High Court is the oldest.

2.2 Jurisdiction: These courts are mainly confined to the jurisdiction of state, group of
states or Union Territory. They are being empowered to govern the jurisdiction of
lower courts like family, civil and criminal courts with other different courts of the
districts. These courts are of the statute of principal civil courts so far originality of
jurisdiction is concerned in the related domain of the states and the other district
courts.

These courts are treated as subordinate to High Courts by status. But High Courts are
mainly exercising their jurisdiction related to civil or criminal domain if the lower

Page | 86
 courts are proved incapable of exercising their power as per authorization extended
by law. These situations may be generated through the inability of financial or
territorial jurisdiction. There are specific areas in which only High Courts can
exercise the right for hearing like cases related to Company Law as it is designated
specially in a state or federal law.

But normally the high courts are involved in the appeals raised in the cases of lower
courts with the writ petitions as conferred in Article 226 of the Constitution of India.
The area of writ petitions is also the sole jurisdiction of high courts. The jurisdiction
of High Court is varying so far territorial jurisdiction is considered.

2.3 Official structure and application: The appointments of the judges of High Courts
are executed by the President of India with the consultation of the Chief Justice of
India, the Chief Justice of High Court and the Governor of the state or union territory.
Decision on the number of judges in High Court is mainly dictated considering the
higher number of either the average of organization of main cases for the last years as
per the average nationally calculated or the average rate of main cases disposed per
judge per year in the respective high court. The high courts with handling of most of
the cases of a particular area are provided with the facility of permanent benches or
branches of the court situated there only. To serve the complainants of remote regions
the establishment of circuit benches had been made to facilitate the service with the
schedule of operation as per the occurrence of visit of the judge.

3. The Lower Courts of India

3.1 District Courts

Constitution:

The basis of structuring of district courts in India is mainly depending upon the
discretion of the state governments or the union territories. The structure of those
courts are mainly made considering several factors like the number of cases,
distribution of population, etc. Depending upon those factors the state government
takes the decision of numbers of District Courts to be in operation for single district
or clubbing together different adjacent districts.

Normally these types of courts exercise their power of juridical service in district
level. These courts are covered by the administrative power of the High Courts under
which the district courts are covered. The judgments of the district courts are subject
to review to the appellate jurisdiction of the respective high court.

Structure and Jurisdiction:

The district courts are mainly run by the state government appointed district judges.
There are additional district judges and assistant district judges who are there to share
the additional load of the proceedings of District Courts. These additional district
judges have equal power like the district judges for the jurisdiction area of any city
which has got the status of metropolitan area as conferred by the state government.

Page | 87
 These district courts have the additional jurisdictional authority of appeal handling
over the subordinate courts which are there in the same district specifically in the
domain of civil and criminal affairs.

The subordinate courts covering the civil cases, in this aspect are considered as Junior
Civil Judge Court, Principal Junior and Senior Civil Judge Court, which are also
known as Sub Courts, Subordinate Courts. All these courts are treated with ascending
orders. The subordinate courts covering the criminal cases are Second Class Judicial
Magistrate Court, First Class Judicial Magistrate Court, and Chief Judicial Magistrate
Court along with family courts which are founded to deal with the issues related to
disputes of matrimonial issues only. The status of Principal Judge of family court is at
par with the District Judge.

There are in total 351 district courts in operation out of which 342 are of states while
9 are of union territories.

3.2 Village Courts

Constitution Structures and Features

The village courts are named as Lok Adalat or Nyaya Panchyat which means the
service of justice extended to the villagers of India. This is the system for resolving
disputes in micro level. The need of these courts is justified though the Madras
Village Court Act of 1888. This act is followed by the development post 1935 in
different provinces, which are re-termed as different states after the independence of
1947.

This conceptual model had been started to be sued from the state of Gujarat
consisting of a judge and two assessors since 1970s. The Law Commission had
recommended in 1984 to form the Nyaya Panchayats in the rural areas with the
people of educational attainment. The latest development had been observed in 2008
through initiation of Gram Nyaylayas Act which had sponsored the concept of
installation of 5000 mobile courts throughout the country. These courts are assigned
to judge the petty cases related to civil and criminal offence which can generate the
penalty of up to 2 years imprisonment.

So far, as per the available statistics of 2012, there are only 151 Gram Nyaylayas
which are functional in this big country which is far below the targeted figures of
5000 mobile courts. While trying to find the basic reasons for this non achievement,
it was found as financial constraints followed by shown reluctance by the lawyers,
respective government officials and police.

Page | 88
Judicial Courts and Procedures
1. Civil Court Structure

The District Courts of India are presided over by a judge. They administer justice in
India at a district level. These courts are under administrative and judicial control of
the High Court of the State to which the district concerned belongs.
The highest court in each district is that of the District and Sessions Judge. This is the
principal court of civil jurisdiction. This is also a court of Sessions. Sessions-triable
cases are tried by the Sessions Court. It has the power to impose any sentence
including capital punishment. There are many other courts subordinate to the court of
District and Sessions Judge. There is a three tier system of courts. On the civil side, at
the lowest level is the court of Civil Judge (Junior Division). On criminal side the
lowest court is that of the Judicial Magistrate. Civil Judge (Junior Division) decides
civil cases of small pecuniary stake. Judicial Magistrates decide criminal cases which
are punishable with imprisonment of up to five years.
The criminal branch of lower judiciary is headed by a sessions court. As per the code
of criminal procedure, a sessions court is to be established for every sessions division
(which is essentially a district or a group of districts) by the state government. This is
followed by Courts of judicial magistrates of first class in non-metropolitan areas
(areas with a population of less than one million) and courts of metropolitan
magistrates in metropolitan areas. Subordinate to them are courts of judicial
magistrates of second class. Sessions judge and assistant sessions judge are appointed
to sessions courts, the latter being subordinate to the former. Similarly, in courts of
judicial magistrates, additional judicial magistrates are subordinate to the chief
judicial magistrate. Every chief judicial magistrate is subordinate to the session judge
as per CrPC.
A magistrate of second class may not pass a sentence exceeding imprisonment of one
year. Similarly, a magistrate of first class may not pass a sentence of more than 3
years. A session judge can pass an order of execution but the same has to be
necessarily confirmed by the concerned High Court. The civil branch of lower
judiciary is headed by a district court. As is clear by the name itself a district court is
to be established in each district according to the Civil Procedure Code. Other courts
subordinate to the district courts are the sub-divisional court and Munsiff court with
the latter being subordinate to the former.
Appointment to the post of district judge is made by the governor of the state in
consultation with the High Court of competent jurisdiction in relation with the state.
Only a person who has been in the state judicial service or has been an advocate or
pleader for not less than seven years can be elevated to this post.
Besides the traditional court system, a variety of special courts can be set up in the
country. Right to speedy trial has been acknowledged to be a fundamental right by the
apex court and as such fast track courts for the same are set up in the country from
time to time. Also, there are special courts that deal with legislation on terrorism.

Page | 89
 While theses courts discharge specialized functions, they also shoulder the burden the
judiciary thus helping in reducing the backlog of cases.
2. Criminal Court Structure

The constitution of India establishes the Supreme Court and defines the jurisdiction
and powers of the same. Under the constitution, the Supreme Court is the final
appellate authority for all matters including criminal. It acts as a final appellate forum
for criminal cases in accordance with the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act 1970.However being the apex court it is not required to
hear each and every appeal but those where the issues in the case requires
interpretation of pertinent questions of law. SC is also empowered to transfer appeals
in the interest of justice.

3. High Court

The constitution provides for the establishment of the high court in each and every
state and generally lays down the broad outline of their jurisdictions. CrPC provides
for superintendence of the HC the courts of Judicial Magistrates in order to ensure
that an expeditious and proper disposal of cases in such courts. Under the code the
HC also enjoys the power of reference, appeal, revision and transfer of cases. It also
categorically recognizes the inherent power of the HC to prevent the abuse of process
of any court.
4. Sessions Court

Every state is required to establish a court of session for every sessions division
which will be presided over by a judge appointed by the HC. The HC may also
appoint Additional Session Judges and Assistant Sessions Judges to exercise
jurisdiction in the court of the session. An assistant sessions judge is subordinate to
the sessions judge.

5. Courts of Judicial Magistrates

In every district of the state the government may upon proper consultation with the
HC establish courts of judicial magistrate of first class and second class as it may
deem necessary. The Presiding Officers of such courts will be appointed by the HC.
Any JMFC can act as the Chief Judicial Magistrate of the District upon due
appointment from HC. His main function would be to guide, supervise and control
other magistrates.

6. Courts of Metropolitan Magistrates

In every metropolitan areas the court may upon consideration from the HC establish
courts of metropolitan magistrates and appoint its presiding officers. Amongst the
metropolitan magistrates the HC may also appoint a chief metropolitan magistrate.
The court of the CMM shall be subordinate to the Sessions Court.

Page | 90
7. Courts of Executive Magistrates

The code has also adopted the policy of separating the judiciary from the executive
and hence it has created a special category of courts which are distinct from the courts
of judicial magistrates. The object of the policy of the separation is to ensure that the
independent functioning of the judiciary is free of all suspicion of executive or
political influence and control. Therefore the Judicial Magistrates and the
Metropolitan Magistrates are put under the control of the HC whereas the executive
magistrates are put under the control of the state government. The Executive
magistrates are primarily concerned with the functions which are ‘police’ or
‘administrative’ in nature. State Government can also appoint one of the executive
magistrates as District Magistrate.

Quasi-Judicial Framework

1. Consumer Tribunals
The Consumer Protection Act, 1986 is a benevolent social legislation that lays down the
rights of the consumers and provides less expensive and often speedy redressal of their
grievances. By spelling out the rights and remedies of the consumers in a market so far
dominated by organized manufacturers and traders of goods and providers of various types of
services, the Act makes the dictum, caveat emptor (‘buyer beware’) a thing of the past.
To provide inexpensive, speedy and summary redressal of consumer disputes, quasi-judicial
bodies have been set up in each District and State and at the National level, called the District
Forums, the State Consumer Disputes Redressal Commissions and the National Consumer
Disputes Redressal Commission respectively. Each District Forum is headed by a person
who is or has been or is eligible to be appointed as a District Judge and each State
Commission is headed by a person who is or has been a Judge of High Court.
The provisions of this Act cover ‘goods’ as well as ‘services’. The goods are those which are
manufactured or produced and sold to consumers through wholesalers and retailers. The
services are in the nature of transport, telephone, electricity, housing, banking, insurance,
medical treatment, etc.
Consumer Forum proceedings are summary in nature. The endeavor is made to grant relief to
the aggrieved consumer as quickly as in the quickest possible, keeping in mind the provisions
of the Act which lay down time schedule for disposal of cases.
If a consumer is not satisfied by the decision of a District Forum, he can appeal to the State
Commission. Against the order of the State Commission a consumer can come to the
National Commission.

1.1 Complaint
a) An unfair trade practice or a restrictive trade practice has been adopted by any trader;
b) The goods bought by him or agreed to be bought by him suffer from one or more
defects;
c) The services hired or availed of or agreed to be hired or availed of by him suffer from
deficiency in any respect.

Page | 91
d) A trader has charged for the goods mentioned in the complaint a price in excess of the
price fixed by or under any law for the time being in force or displayed on the goods
or any package containing such goods.
e) Goods which will be hazardous to life and safety when used, are being offered for
sale to the public in contravention of the provisions of any law for the time being in
force requiring traders to display information in regard to the contents, manner and
effect of use of such goods.

1.2 Who can file a complaint?

a) Consumer
b) A Registered Consumer Organization
c) Central or State Government & one or more consumers, where there are numerous
consumers having the same interest. No stamp or court fee is needed

1.3 Grounds of Complaint

a) Any unfair trade practice or restrictive trade practice adopted by the trader.
b) Defective goods.
c) Deficiency in service.
d) Excess price charged by the trader.
e) Unlawful goods sale which is hazardous to life and safety when used.

1.4 Procedure to be followed by the Consumer Courts

The following procedure is equally applicable to the District Forum, State Commission with
required modifications and National Commission with additional procedures required by the
rules. A written complaint, can be filed before the District Consumer Forum for pecuniary
value of up to Rupees twenty lakh, State Commission for value upto Rupees one crore and
the National Commission for value above Rupees one crore, in respect of defects in goods
and or deficiency in service. The service can be of any description and the illustrations given
above are only indicative. However, no complaint can be filed for alleged deficiency in any
service that is rendered free of charge or under a contract of personal service.
The remedy under the Consumer Protection Act is an alternative in addition to that already
available to the aggrieved persons/consumers by way of civil suit. In the
complaint/appeal/petition submitted under the Act, a consumer is not required to pay any
court fees but only a nominal fee.

1.5 Where Laboratory Test is required

A consumer is supposed to file as many copies of the complaint as there are number of
judges, with all essential information, supporting papers like correspondence, and specifying
the compensation demanded.
On receipt of such complaint -
a) The District Forum should refer a copy of the complaint to the opposite party
directing him to give his version of the case within a period of thirty days which can
be extended to forty five days.

Page | 92
b) The District Forum may require the complainant to deposit specified fees for payment
to the appropriate laboratory for carrying out the necessary analysis or test in relation
to the goods in question.
c) The District Forum will obtain a sample of the goods, seal it, authenticate it and refer
the sample so sealed to the appropriate laboratory for an analysis or test, whichever
may be necessary, with a view to finding out whether such goods suffer from any
defect.
i. The District Forum will remit the fees to the appropriate laboratory to enable
it to carry out required analysis or test. The laboratories supposed to report its
findings to the District Forum within a period of fifty-five days. This period is
extendible by the District Forum.
d) Upon receiving laboratory’s report, its copy will be forwarded by the District Forum
to the opposite party along with its own remarks.
e) In the event of any party disputing the correctness of the findings, or the methods of
analysis or test adopted by the appropriate laboratory, the District Forum shall require
the objecting party to submit his objections in writing.
f) The District Forum will give an opportunity of hearing to the objecting party.
g) The District Forum shall issue appropriate order after hearing the parties.

1.6 Where No Laboratory Test is required or Complaint Relates to Services

1. On receiving the complaint, the District Forum should refer a copy of the complaint
to the opposite party directing him to give his version of the case within a period of
thirty days which can be extended to forty five days.
2. The opposite party on receipt of a complaint referred to him may-
3. admit the complaint
4. deny or dispute the allegations contained in the complaint, or
5. omits or fails to respond within the time given by the District Forum.
6. Where the opposite party admits the allegation, the District Forum should decide the
matter on the basis of the merits of the case and the documents before it.
i. Where the opposite party denies or disputes the allegations made in the
complaint, the District Forum will proceed to settle the dispute on the basis of
evidence brought to its notice by both the parties.
ii. Where the opposite party omits or fails to respond within the time given by
the Forum, the District Forum will proceed to settle the dispute on the basis of
evidence brought to its notice by the complainant.
7. The District Forum shall issue an appropriate order after hearing the parties and
taking into account available evidence.

1.7 Time Period for Complaint

As per Section 24 A, a complaint under the Act should be brought within a period of two
years from the date on which the cause of action arises.

Page | 93
1.8 Penalties
Consumer Courts are empowered to punish the person who feels to comply with their orders
with an imprisonment up to three years or fine up to Rs. 10,000/- or with both.

1.9 Enforcement of Order

The Consumer Courts (District Court, State Commission and National Commission) are
given vast powers to enforce their orders. In case of non-compliance of any interim order,
they can attach the property of the person non-complying their order. In case, noncompliance
continues for more than six months, the Consumer Courts can sell such attached property.
In case, any amount is due from any person under an order of Consumer Court. The person
entitle to that amount can apply to consumer court and court can issue a certificate for the
said amount to the Collector of the District (by whatever named called) and the Collector
after receiving that certificate from court shall proceed to recover the amount in the same
manner as arrear of land revenue. After recovery by Collector, the amount is paid to entitle
person.

1.10 Appeal
Appeal is a legal instrumentality whereby a person not satisfied with the findings of a court
has an option to go to a higher court to present his case and seek justice. In the context of
Consumer Forums -
a. An appeal can be made with the State Commission against the order of the District
Forum within 30 days of the order which is extendable for further 15 days.
b. An appeal can be made with the National Commission against the order of the State
Commission within 30 days of the order or within such time as the National
Commission allows.
c. An appeal can be made with the Supreme Court against the order of the National
Commission within 30 days of the order or within such time as the Supreme Court
allows. Now after 2002 amendment, the appellant has to deposit fifty percent amount
which he is required to pay in terms of an order of consumer court or twenty five
thousand rupees in State Commission/fifty thousand rupees in National Commission
whatever is less.
The new Consumer Protection Act, 2019 came into force on 20th July 2020 and it will
empower consumers and help them in protecting their rights through its various notified rules
and provisions. The new act will be swift and less time consuming compared to
the older Consumer Protection Act, 1986 in which single-point access to justice was given
making it a time-consuming exercise. The old act provided for a three-tier consumer
dispute redressal machinery at the National (National Consumer Disputes Redressal
Commission), State and District levels.

The Consumer Protection Act, 2019 establishes the Central Consumer Protection
Authority (CCPA) whose primary objective will be to promote, protect and enforce the
rights of consumers.

Page | 94
Rules on E-commerce and Unfair Trade Practices: The government will notify
the Consumer Protection (E-commerce) Rules, 2020 under the Act whose broad provisions
are given below.

 E-commerce entities are required to provide information to consumers, relating to

return, refund, exchange, warranty and guarantee, delivery and shipment, modes of
payment, grievance redressal mechanism, payment methods, security of payment
methods, charge-back options and country of origin.
o These are necessary for enabling the consumer to make an informed
decision at the pre-purchase stage.
 These platforms will have to acknowledge the receipt of any consumer complaint
within 48 hours and redress the complaint within one month from the date of
receipt. They will also have to appoint a grievance officer for consumer grievance
redressal.
 The Consumer Protection (E-commerce) Rules, 2020 are mandatory and are not
advisories.
 Sellers cannot refuse to take back goods or withdraw services or refuse
refunds, if such goods or services are defective, deficient, delivered late, or if they do
not meet the description on the platform.
 The rules also prohibit the e-commerce companies from manipulating the
price of the goods or services to gain unreasonable profit through unjustified prices.

Alternate Dispute Resolution Mechanism of Mediation:

 A complaint will be referred by a Consumer Commission for mediation, wherever

scope for early settlement exists and parties agree for it.

 The mediation will be held in the Mediation Cells which will be established under
the aegis of the Consumer Commissions.

 There will be no appeal against settlement through mediation.

Simplification of the Consumer Dispute Adjudication Process:

 Empowering the State and District Commissions to review their own orders.
 Enabling a consumer to file complaints electronically and in consumer commissions
that have jurisdiction over the place of his residence.
 Video-conferencing for hearing and deemed admissibility of complaints if the
question of admissibility is not decided within the specified period of 21 days.

Page | 95
2. Administrative Tribunals
The enactment of Administrative Tribunals Act in 1985 opened a new chapter in the sphere
of administering justice to the aggrieved government servants. The Administrative Tribunals
Act owes its origin to Article 323-A of the Constitution which empowers Central
Government to set-up by an Act of Parliament, Administrative Tribunals for adjudication of
disputes and complaints with respect to recruitment and conditions of service of persons
appointed to the public service and posts in connection with the affairs of the Union and the
States. In pursuance of the provisions contained in the Administrative Tribunals Act, 1985,
the Administrative Tribunals set-up under it exercise original jurisdiction in respect of
service matters of employees covered by it. As a result of the judgment dated 18 March 1997
of the Supreme Court, the appeals against the orders of an Administrative Tribunal shall lie
before the Division Bench of the concerned High Court.
The Administrative Tribunals exercise jurisdiction only in relation to the service matters of
the litigants covered by the Act. The procedural simplicity of the Act can be appreciated from
the fact that the aggrieved person can also appear before it personally. The Government can
present its case through its departmental officers or legal practitioners. Thus, the objective of
the Tribunal is to provide for speedy and inexpensive justice to the litigants.
The Act provides for establishment of Central Administrative Tribunal (CAT) and the State
Administrative Tribunals. The CAT was set-up on 1 November 1985. Today, it has 17
regular benches, 15 of which operate at the principal seats of High Courts and the remaining
two at Jaipur and Lucknow. These Benches also hold circuit sittings at other seats of High
Courts. In brief, the tribunal consists of a Chairman, Vice-Chairman and Members. The
Members are drawn, both from judicial as well as administrative streams so as to give the
Tribunal the benefit of expertise both in legal and administrative spheres.
Department of Administrative Reforms and Public Grievances is the nodal agency of the
Government for Administrative Reforms as well as redressal of public grievances relating to
the States in general and grievances pertaining to Central Government agencies in particular.
The Department disseminates information on important activities of the Government relating
to administrative reforms best practices and public grievance redressal through publications
and documentation. The Department also undertakes activities in the field of international
exchange and cooperation to promote public service reforms.
The mission of the Department is to act as a facilitator, in consultation with Central
Ministries/Departments, States/UT Administrations, Organizations and Civil Society
Representatives, to improve Government functioning through process re-engineering,
systemic changes. Organization and Methods, efficient Grievance handling promoting
modernization, Citizens Charters, award schemes, e-governance and best practices in
government.

3. Telecom Dispute Settlement and Appellate Tribunal

The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) was established to
adjudicate disputes and dispose of appeals with a view to protect the interests of service

Page | 96
providers and consumers of the telecom sector and to promote and ensure orderly growth of
the telecom sector.
This quasi-judicial framework was established in order to cater to the dynamic transitional
phase of the Indian Telecom Sector in the early 1990s.
The functions of the appellate tribunal are to adjudicate any dispute between a licensor and
licensee, between two or more service providers, between a service provider and a group of
consumers, and to hear and dispose of appeals against any decision or order of TRAI, the
appellate tribunal consists of Chairperson and two Members.
The Appellate Tribunal came into existence on 29th May, 2000 and started hearing cases
from January, 2001. Hon’ble Mr. Justice Suhas C. Sen, former Judge of Supreme Court of
India, was appointed as its first Chairperson and succeeded by Hon'ble Mr. Justice
D.P.Wadhwa and Hon'ble Mr.Justice N. Santosh Hegde, Mr. Justice Arun Kumar. The
Tribunal is presently headed by Hon’ble Mr. Justice S.B.Sinha, a former Judge of the
Supreme Court, Chairperson. The detailed procedure for filing a dispute before the Tribunal
is laid down in the Telecom Dispute Settlement and Appellate Tribunal Procedures 2005.

4. Company Law Board

The Company Law Board is an independent quasi-judicial body in India which has powers to
overlook the behavior of companies within the Company Law. The concept of Company Law
Board in its present form was introduced through an amendment to the Companies Act of
1956 in the year 1988. It was constituted in its present form on May 31, 1991.Under Section
10E of the Companies Act, 1956 replacing the erstwhile Company Law Board which was
primarily as a delegate of the Central government since 1964. The Company Law Board has
framed Company Law Board Regulations 1991 wherein all the procedure for filing the
applications/petitions before the Company Law Board has been prescribed. The Central
Government has also prescribed the fees for making applications/petitions before the
Company Law Board under the Company Law Board (Fees on applications and Petitions)
Rules 1991. The Company Law Board will be succeeded over by the National Company Law
Tribunal, which will govern all companies under the Companies Act, 2013.
In terms of Section 10F of the Companies Act, any person aggrieved by any decision or order
of the Company Law Board may file an appeal to the High Court within sixty days from the
date of communication of the decision or order of the Company Law Board to him on any
question of law arising out of such order.

5. National Green Tribunal

The National Green Tribunal has been established on 18th October, 2010 under the National
Green Tribunal Act, 2010 for effective and expeditious disposal of cases relating to
environmental protection and conservation of forests and other natural resources including
enforcement of any legal right relating to environment and giving relief and compensation
for damages to persons and property and for matters connected therewith or incidental
thereto. It is a specialized body equipped with the necessary expertise to handle
environmental disputes involving multi-disciplinary issues. The Tribunal shall not be bound

Page | 97
by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by
principles of natural justice.
The Tribunal's dedicated jurisdiction in environmental matters shall provide speedy
environmental justice and help reduce the burden of litigation in the higher courts. The
Tribunal is mandated to make and endeavor for disposal of applications or appeals finally
within 6 months of filing of the same. Initially, the NGT is proposed to be set up at five
places of sittings and will follow circuit procedure for making itself more accessible. New
Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai
shall be the other four place of sitting of the Tribunal.

6. Income Tax Appellate Tribunal

In pursuance of the recommendations made by the Select Committee, the Legislature

introduced Chapter IL-A (Section 5A) in the Indian Income-tax Act in 1941 and 25.1.1941
was notified as the appointed date from which the Tribunal came into being. Subject to minor
variations consequent on the expansion of the Tribunal and extension of its jurisdiction the
section remained unchanged in its essentials till the repeal of the Income-tax Act, 1922 with
effect from 1.4.1962. In the income-tax Act of 1961, the constitution and functions of the
Tribunal have been set out in sections 252 to 255. There is no fundamental change either in
the constitution or in the functions of the Tribunal due to enactment of the new Income-tax.
Act. The Bench, as a rule, consists of two-members--one Judicial and one Accountant
Member. The Wealth tax Act and the Gift Tax Act introduced in sixties however did not
specifically require the Bench of one members each of a class and it may a bench of any two
members, Judicial or Accountant. A provision was also made for the constitution of special
three-member Benches (consisting of two members of one class and one of the other) and
enabling a single member (judicial or accountant) authorized in that behalf, to dispose of
small appeals.

7. Debt Recovery Tribunal

Keeping in line with the international trends on helping financial institutions recover their
bad debts quickly and efficiently, the Government of India has constituted thirty three Debts
Recovery Tribunals and five Debts Recovery Appellate Tribunals across the country.
The Debts Recovery Tribunal (DRT) enforces provisions of the Recovery of Debts Due to
Banks and Financial Institutions (RDDBFI) Act, 1993 and also Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act,
2002.
There are a number of States that do not have a Debts Recovery Tribunal. The Banks &
Financial Institutions and other parties in these States have to go to Debts Recovery Tribunal
located in other states having jurisdiction over there area. Thus the territorial jurisdiction of
some Debts Recovery Tribunal is very vast. The setting up of a Debts Recovery Tribunal is
dependent upon the volume of cases.
Appeals against orders passed by Debts Recovery Tribunal (DRT) lie before Debts Recovery
Appellate Tribunal (DRAT).

Page | 98
Ombudsman
An ombudsman or public advocate is usually appointed by the government or by parliament,
but with a significant degree of independence, who is charged with representing the interests
of the public by investigating and addressing complaints of maladministration or violation of
rights. In some countries an Inspector General, Citizen Advocate or other official may have
duties similar to those of a national ombudsman, and may also be appointed by the
legislature. Below the national level an ombudsman may be appointed by a state, local or
municipal government, and unofficial ombudsmen may be appointed by, or even work for, a
corporation such as a utility supplier or a newspaper, for an NGO, or for a professional
regulatory body.
Whether appointed by a legislature, the executive, or an organization (or, less frequently,
elected by the constituency that he or she serves), the typical duties of an ombudsman are to
investigate complaints and attempt to resolve them, usually through recommendations
(binding or not) or mediation. Ombudsmen sometimes also aim to identify systemic issues
leading to poor service or breaches of people's rights. At the national level, most ombudsmen
have a wide mandate to deal with the entire public sector, and sometimes also elements of the
private sector (for example, contracted service providers). In some cases, there is a more
restricted mandate, for example with particular sectors of society. More recent developments
have included the creation of specialized Children's Ombudsman and Information
Commissioner agencies.
In some jurisdictions an ombudsman charged with handling concerns about national
government is more formally referred to as the "Parliamentary Commissioner" (e.g. the
United Kingdom Parliamentary Commissioner for Administration, and the Western
Australian state Ombudsman). In many countries where the ombudsman's remit extends
beyond dealing with alleged maladministration to promoting and protecting human rights, the
ombudsman is recognized as the national human rights institution. The post of ombudsman
had by the end of the 20th century been instituted by most governments and by some
intergovernmental organizations such as the European Union.
Public Interest Litigation: It may be easy to know when such litigation is presented. Yet
defining it has taxed judicial minds. Some say it is a ‘nebulous concept’ and is beyond
definition. Others try to define it by delineating its characteristic features. A Judge in
Australia identifies it by the public character to which the litigation relates evidenced by:
properly bringing proceedings to advance a public interest; that proceedings contribute to the
proper understanding of the law in question; and have involved no private gain.

The effect of this decision is really a crucial determining factor. Whether the action is
brought by a singular individual or an organization or as a class action, or even where the
remedy sought may benefit the applicant directly, the litigation may yet be in the public
interest if the impact of the decision will serve the wider public interest.

As Lord Diplock said in the English House of Lords:

“There would be a grave lacuna in our system of public law if a pressure group, like
the Federation, of even a single public spirited tax-payer, were prevented by out-

Page | 99
 dated technical rules of locus standi from bringing the matter to the attention of the
court to vindicate the rule of law and get unlawful conduct stopped.”

This dictum was adopted in Malaysia in the leading public interest litigation case, Mohamed
bin Ismail v Tan Sri Haji Othman Saat in these terms:

“… if they (public authorities) transgress any law or constitutional directive, then any
public- spirited citizen, even if he has no greater interest than a person having regard for the
due observation of the law, may move the courts and the courts may grant him the
appropriate legal remedy in its discretion”

Technical definition of PIL: The term Public Interest Litigation (PIL) is composed of two
words; ‘Public Interest’ and ‘Litigation’. The words ‘Public Interest’ mean “an expression
which indicates something in which the general public or the community at large has some
pecuniary interest, or some interest by which their legal rights or liabilities are affected.” The
word ‘litigation’ on the other hand means “a legal action, including all legal proceedings
initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy.”

Hence, lexically the expression ‘Public Interest Litigation’ denotes a legal action initiated in
a court of law for the enforcement of public interest where the rights of an individual or a
group have been affected.

1. Important Features of PIL

Through the mechanism of PIL, the courts seek to protect human rights in the following
ways:

a) By creating a new regime of human rights by expanding the meaning of fundamental

right to equality, life and personal liberty. In this process, the right to speedy trial,
free legal aid, dignity, means and livelihood, education, housing, medical care, clean
environment, right against torture, sexual harassment, solitary confinement, bondage
and servitude, exploitation and so on emerge as human rights. These new
reconceptualized rights provide legal resources to activate the courts for their
enforcement through PIL.
b) By democratization of access of justice. This is done by relaxing the traditional rule
of locus standi. Any public spirited citizen or social action group can approach the
court on behalf of the oppressed classes. Courts attention can be drawn even by
writing a letter or sending a telegram. This has been called epistolary jurisdiction.
c) By fashioning new kinds of reliefs under the court’s writ jurisdiction. For example,
the court can award interim compensation to the victims of governmental lawlessness.
This stands in sharp contrast to the Anglo-Saxon model of adjudication where interim
relief is limited to preserving the status quo pending final decision. The grant of
compensation in PIL matters does not preclude the aggrieved person from bringing a
civil suit for damages. In PIL cases the court can fashion any relief to the victims.
d) By judicial monitoring of state institutions such as jails, women’s protective homes,
juvenile homes, mental asylums, and the like. Through judicial invigilation, the court
seeks gradual improvement in their management and administration. This has been

Page | 100
 characterized as creeping jurisdiction in which the court takes over the administration
of these institutions for protecting human rights.
e) By devising new techniques of fact-finding. In most of the cases the court has
appointed its own socio-legal commissions of inquiry or has deputed its own official
for investigation. Sometimes it has taken the help of National Human Rights
Commission or Central Bureau of Investigation (CBI) or experts to inquire into
human rights violations. This may be called investigative litigation.

2. PIL as An Instrument of Social Change

PIL is working as an important instrument of social change. It is working for the welfare of
every section of society. The innovation of this legitimate instrument proved beneficial for
the developing country like India. PIL has been used as a strategy to combat the atrocities
prevailing in society. It’s an institutional initiative towards the welfare of the needy class of
the society. In Bandhu Mukti Morcha v. Union of India13, SC ordered for the release of
bonded labourers. In Murli S. Dogra v. Union of India, court banned smoking in public
places. In a landmark judgement of Delhi Domestic Working Women’s Forum v. Union of
India ((1995) 1 SCC 14), Supreme Court issued guidelines for rehabilitation and
compensation for the rape on working women. In Vishaka v. State of Rajastha14 Supreme
court has laid down exhaustive guidelines for preventing sexual harassment of working
women in place of their work.

3. Criticism of PIL

The debates over the limits of Judicial Activism in the area of PIL, have been vigorous. A
private members bill entitled “Public Interest Litigation (Regulation) Bill, 1996” was tabled
in the Rajya Sabha. The statement of objectives and reasons stated that PIL was misused in
the name of providing justice to the poor sections of the society and also that PIL cases were
given more priority over other cases which led to pending of several “general section cases”
in the court for years. However, the bill was not passed.

Bearing in mind the power and importance of PIL in making the Constitution a living reality
for every citizen and also the efforts channelled through the medium of PIL jurisprudence in
providing justice to the deprived, the process is positively succeeding, following the logic of
its nature. In a country Characterized by numerous “Variable Ethnicity” and religious
diversity, working via the pattern through a comprehensive bureaucracy, a grieved, poor,
deprived citizen does find it hard to seek justice because of economic disability or lack of
“Know-How” or even due to red-tapism. The only option left before the deprived next to a
miracle is a PIL petition.

E-Courts System in India: The Indian judiciary comprises of nearly 15,000 courts situated
in approximately 2,500 court complexes across the country. The Indian judiciary has faced a
huge number of pending cases in district and subordinate courts which sets the background
for implementation of ICT in courts. The e-courts project is enabling courts to make justice
delivery system affordable and cost-effective with the implementation of ICT in judicial
13
AIR1984SC802
14
AIR1997SC3011

Page | 101
system. This would help in improving the court processes and rendering citizen-centric
services. The mission mode project aimed at developing, installing and implementation of
automated decision-making and decision-support systems in the Supreme Court, the High
Courts and the subordinate courts across the nation. Under the e-Courts mission mode
project, it is proposed to implement ICT in Indian judiciary in 3 phases Phase II, which is
currently is in progress, aims at setting up of centralised filing centres, digitization of
documents, adoption of document management systems, creation of e-filing and e-payment
gateways. However, there is lack of awareness about the potential of e-court project among
judges as well as public at large.

1. Concept of E-Courts

E-courts are aimed to make legal processes easier and more user friendly. In an e-court, the
entire work is executed digitally, wherein, the information that is shared and generated is
stored as a database and synched to particular software. This software can be accessed by
litigants, judges and advocates anytime and anywhere. The primary intention of e-courts is to
make the justice delivery system affordable, speedy, transparent and accountable by limiting
the paper filings. The e-courts mission mode project is conceptualised on the basis of the
“National Policy and Action Plan for Implementation of Information and Communication
Technology in the Indian Judiciary -2005” prepared by the e-Committee of the Supreme
Court of India. The Strategic Plan suggested a three-phased implementation plan for
incorporating ICTs into Indian courts.

2. Components of Indian E-Judiciary System

The main components of E-Judiciary System in India are:

a) Creation of Computer Room at all the complexes/ site preparation: A dedicated

area for housing the servers and related ICT equipment (computer server room/ CSR)
has been set up at each subordinate court complex. A Judicial Service Centre has also
been setup in each court complex, as a citizen service interface counter for provision
of various services such as case filing and status enquiry.
b) Providing Laptops and Laser Printers to Judicial Officers: Laptops have been
provided to each judicial officer to enable them to work from their chamber, court
room and home office in an effective manner. The project aims to enhance the
capacity of all judicial officers to supervise and guide the process of computerization
of courts.
c) ICT Training for Judges &their Staff: ICT training will be imparted to judicial
officers and court staff to make them familiar with and proficient in the use of ICT
tools.
d) Technical Manpower: Technical manpower is deployed at all district courts, High
Courts, High Court Benches and Supreme Court under the project. The technical
manpower provides ‘troubleshooting’ support and necessary maintenance and
training support at the court complex and assistance in the transition from a manual
case management system towards an ICT-enabled one.
e) Computer Hardware: To make the subordinate courts ICT-enabled in the country,
each court complex has been equipped with the required computer hardware such as

Page | 102
 desktops, printers, servers and scanners. Each judge and his/ her support staff is
provided with four client machines and three printers; common service sections are
provided with thin clients and printers, and ICT hardware such as servers and
scanners are installed in computer server rooms in each court complex.
f) Communication, Connectivity and Local Area Network: Procurement and
installation of Local Area Network (LAN) in all court complexes. Internet
connectivity for judges/ court complexes. All court complexes are connected under
the State Wide Area Network (SWAN) and also provided last mile connectivity from
SWAN’s Point of Presence (PoP) to the court complexes.
g) Power Back-up: UPS and DG sets have been provided to create the necessary power
back-up facilities for ICT infrastructure in a court complex. UPS provides power
back-up to desktops and servers; DG sets are used to provide power back-up to ICT
infrastructure in the Computer Server Room and the Judicial Service Centre.
h) Upgrade of ICT Infrastructure of the Supreme Court and High Courts: The
existing ICT infrastructure has been upgraded at the Supreme Court and all High
Courts by providing additional servers, client machines, networking equipment,
power infrastructure, cabling, etc.
i) Development of Application Software: Unified National Core version 1.0 of the
Case Information Software has been developed and deployed in district and
subordinate courts to automate the case management lifecycle and all major processes
such as case filing, scrutiny, registration, allocation and court diary/ proceedings.
Cause lists, case status, certified copies of orders and copy of judgments will also be
made available for online download or viewing. This is in use in almost all the states.
j) System Software, Office Tools: System software such as an Operating System for
servers and desktops and office tools has been provided to client machines/ servers.
k) Digital Signature: Digital signature certificates have been provided to all judicial
officers. It enables them to sign the judgement or any electronic official documents
digitally when required.
l) Creation & Upgrading of Centralized facility for system administration: A
centralized facility has been established for maintaining the Network Operating
Centre and central database, managing the judicial data grid and sustaining the
dedicated portal for use by the entire judiciary. NIC state data centres will be used to
co-locate servers for the judicial data of each High Court and a National Data Centre
will be set up in the NIC Data Centre along with one Disaster Recovery site.
m) Video Conferencing in approximately at 500 locations: Video conference
connectivity is being established in 500 locations between prisons and district courts
to allow virtual interfacing of a judge with witnesses, holding conferences and
meetings, production of under-trial prisoners, etc. The facility would need to be
installed in the prisons and within the court complex premises.

3. Key Stakeholders of E-Judiciary System In India

a) Organisation:
 High Courts and Subordinate Courts
b) Monitoring Agency:
 Department of Justice, GoI
 E-Committee, Supreme Court of India

Page | 103
 c) Officials:
 Judicial Officers
 Office bearers (Registrar &Central Project Co-ordinator)
 Court Staff (Court Master, Clerk, ICT Specialist/System Administrator)
d) Beneficiaries
 Advocates and Litigants
e) Implementing Agency
 NIC

4. Benefits of E-Judiciary System

The important benefits of the E-Judiciary System are the following:

a) Allows electronic monitoring of court-wise case pendency and other key monitoring
parameters with reference to courts.
b) Greater control over management of cases leads to faster disposal of cases and
reduction in pendency.
c) Decrease in the time and effort on daily operational activities and a reduction in the
movement of stakeholders to courts.
d) Efficient and effective service delivery in consonance with access to justice for all,
ensuring fast and fair trials.
e) Citizen can avail of services at the Judicial Service Centre or access the information
through the Web at any time and from anywhere.

5. Challenges of E-Judiciary System in India

The e-Courts Integrated Mission Mode Project has noteworthy objectives where the main
aim is ICT enablement at the courts in districts and taluq level courts. It has provided
hardware, application software, namely, the Case Information System, and training to judges
and court officials to run the system. The project has achieved more than 90% in ICT
deployment. At the same time, it is an achievement in terms of asset creation. All the
outcomes could not be achieved due to various challenges.

a) Upgrade of infrastructure: The existing courthouses in subordinate courts should be

revamped since the current rooms are tiny. The Judicial Service Centre and server
room should be located in two different rooms of the courthouse. Proper road
directions should be given to reach the Judicial Service Centre. Power back-up should
be provided in all the court complexes, consisting of a DG set and UPS.

b) Increase in supply of hardware: Hardware is provided under the e-Courts project,

but it is not adequate to convert the entire system to a computerised one. Therefore, it
is necessary to provide enough computers, printers and scanners along with other
computer accessories. The quality of computers, printers, scanners and Internet
connectivity should be thoroughly checked and improved.

c) Capacity building in terms of manpower: Specialised manpower should be hired to

run the system efficiently. They should have thorough technical knowledge. The

Page | 104
 position of court managers remains vacant or is not floated in various courts. This
position should be created and competent young people should be hired in all the
subordinate courts. The responsibility of technical staff and the court manager should
be clearly laid out. An appropriate incentive mechanism may attract skilled people.
The new position should be permanent and contract staff can be hired in the transition
phase, with renewal of their contracts based on performance.

d) Continuous training to concerned officials: Since court officials play a crucial role
in the e-Courts project as end-users, they need long-term training. A report published
by the Judicial Commission of New South Wales, Australia mentions that they have
been providing computer training to their staff for more than two decades. The
training programme should include the provision of fresh training for new employees
along with a refresher course for old employees. Judicial officers also need training
on a regular basis.

e) Continuous data entry: Data entry should be done on a continuous basis so that the
latest case update always takes place in all the court complexes irrespective of its
physical location. Change management should be serious enough to make the data
entry process uninterrupted.

f) Improvement in connectivity: Court complexes in remote locations suffer due to

low connectivity. One main important condition for the success of the project is
uninterrupted connectivity. Internet as well as electrical connectivity needs to be
improved.

g) Awareness creation: Awareness creation about the project is of utmost importance

for the success of the project. Awareness should be increased among citizens since
computerisation in the courts is meant to improve the service delivery mechanism.
This is possible through campaigns on the radio and television. Since the majority of
users lack education, such campaigns through audio-visual media would be helpful. A
demo of the project could be run in the court complexes through display board or
kiosks. Lawyers also lack knowledge about the e-Courts project. They play a crucial
role as a link between litigants and the judicial system.

h) Customisation of application software: The CIS application needs to be

customised. The application software could consist of a core version along with a
peripheral version. The core version may be controlled by NIC while lower courts in
different states may have the access to customise the database using the peripheral
version. Security of data can be maintained through proper data classification.

6. Current Status of E-Court Project

The project envisages deployment of Hardware, Software and Networking to assist district
and Taluk level courts in streamlining their day to day functioning. Key functions such as
case filing, allocation, registration, case work-flow, orders and judgments will be ICT
enabled. Cause-Lists, Case-Status, Orders, and Judgments will be made available on the web
and made accessible to litigants, advocates and general public. The project aims to build a

Page | 105
National Grid of key Judicial information available all round the clock in a reliable and
secure manner.

For Data management, already the Application software developed by NIC called Case
Information System (CIS) Software for District and sub-ordinate courts has been tested in
many of the major pilot sites and is being fully functional now. Automated Mailing Service is
recently launched which gives the information to particular litigants and lawyers all the
developments by a single mail. SMS Push Service has been widely used across the country
and more popular in remote areas where mobile phones without internet facility are used by
the litigants and lawyers. The government has brought online connectivity to about 2,992
district and lower courts across the country by the end 2018.Under the latest phase of the e-
courts programme, the state-run Bharat Sanchar Nigam Limited (BSNL) will connect
subordinate courts with ‘wide area network’ connectivity at a cost of 167 crores. Video-
conferencing facilities between 488 court complexes and 342 corresponding jails are also
installed. The NJDG is an online platform that now provides information on proceedings and
decisions of 16,089 computerised district-level courts. The applications of e-filing, e-pay,
and NSTEP (National Service and Tracking of Electronic Processes) created under the e-
Courts project were launched first. The second phase of the e-Courts project is implemented
by Department of Justice during 2015 – 19 under the guidance of e-Committee, Supreme
Court of India for ICT enablement of all district and subordinate courts in the country. The
number of electronic transactions transacted under e-court project as per the data available on
e-Taal is very high and are amongst top 5 performers with number of electronic transactions
being more than 40 crore.

Virtual Courts in India: The COVID-19 pandemic has disrupted the justice delivery system
like never before. The compulsions associated with 'social distancing' coupled with lockdown
directives have led courts and tribunals to shut their premises to the public. At the same time,
recognizing that a complete shut-down of the justice-delivery system is undesirable, judicial
administrators have turned to technology to meet the challenges posed by the pandemic.
Various judicial and quasi-judicial bodies, led by the Supreme Court, have been conducting
hearings online.

However, while these measures are commendable, they are not sufficient. This is because of
the following reasons:

 The virtual system of functioning has not been adopted by all judicial and quasi-
judicial institutions across the country.
 Institutions which have adopted this system have only been employing it for select
matters i.e. to hear and dispose of urgent/extremely urgent matters.
 The current situation is unpredictable. It is impossible to say for how long 'social
distancing' directives and restrictions on movement will remain in force. It is likely
that these preventive measures will be continued for some time even after the present
threat has subsided.

In the present circumstances, it is essential that the judicial and quasi-judicial machinery
takes steps not only to remain operational but to achieve maximum functionality (as far as

Page | 106
may be) at the earliest. The virtual courts system can be of great assistance in achieving this
goal.

In this backdrop, the directions passed by the Supreme Court, on 6 April 2020, for the
conduct of court proceedings across the country via video conferencing (VC), during the
period of the outbreak of the COVID-19 pandemic are a welcome step. Broadly, the Supreme
Court has directed as under:

 All High Courts shall ensure functioning of the judicial system through use of VC
technologies and to this end, shall decide the modalities for use of VC technologies
after considering relevant factors (such as peculiarities of the judicial system in every
state as well as the dynamically developing public health situation).
 District Courts in every state shall adopt VC technologies prescribed by the
appropriate High Court.
 Courts shall make VC facilities available for those litigants who do not have access to
these facilities, including by appointment of advocates as "amicus curiae" and making
VC facilities available to such advocates (if necessary).
 Till such time as the High Courts frame rules in this regard, VC technologies shall
primarily be used for hearing arguments, both, at the trial as well as appellate stages.
However, evidence shall not be recorded using VC facilities except with the parties'
mutual consent.
 The directions shall remain in force till such time as further orders are passed by the
Supreme Court.

On 7 April 2020, the High Court of Telangana passed directions for conduct of hearings via
video-conferencing in the state during the period of COVID-19 lockdown. It is expected that
other High Courts as well as tribunals will adopt similar measures in the coming days.

Separately, on 8 April 2020, the Bombay High Court issued special directions in connection
with live-streaming of matters listed for hearing on 9 April 2020 before His Lordship the
Hon'ble Mr. Justice G S Patel. Previously, the Kerala High Court had live-streamed its
hearings for the general public via Zoom App.

The decision to make proceedings being conducted in the time of COVID-19 accessible to all
via live-streaming is a welcome move. In doing so, our courts have sustained a primary
principle of the justice system, namely, justice must not only be done but seen to be done.

Landmark Judgments

1. Anuradha Bhasin and Ors. vs. Union of India15

When the Constitutional Order was issued by the President, applying all provisions of
the Constitution of India to the State of Jammu and Kashmir due to the prevailing
circumstances, on the same day, the District Magistrates, apprehending breach of peace and
tranquility and hence, imposed restrictions on movement and public gatherings by virtue of

15
AIR2020SC 1308

Page | 107
powers vested under Section 144, Code of Criminal Procedure. Due to the said restrictions,
the Petitioner stated that the movement of journalists was severely restricted and aggrieved
by the same, the Petitioners filed the petition seeking issuance of an appropriate writ for
setting aside or quashing any and all order(s), notification(s), direction(s) and/or circular(s)
issued by the Respondents under which any/all modes of communication including internet,
mobile and fixed line telecommunication services have been shut down or suspended or in
any way made inaccessible or unavailable in any locality. Further, the Petitioners sought the
issuance of an appropriate writ or direction directing Respondents to immediately restore all
modes of communication including mobile, internet and landline services throughout Jammu
and Kashmir in order to provide an enabling environment for the media to practice its
profession. The main issue was whether freedom of speech and expression and freedom to
practice any profession, or to carry on any occupation, trade or business over Internet was
part of fundamental rights and imposition of restrictions under Section 144 of Code of
Criminal Procedure was valid.

The Supreme Court held that the internet is also a very important tool for trade and
commerce. The globalization of the Indian economy and the rapid advances in information
and technology have opened up vast business avenues and transformed India as a global IT
hub. There was no doubt that there are certain trades which are completely dependent on the
internet and that such a right of trade through internet also fosters consumerism and
availability of choice. Therefore, the freedom of trade and commerce through the medium of
the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions
provided under Article 19(6). It was further held that the freedom of speech and expression
and the freedom to practice any profession or carry on any trade, business or occupation over
the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article
19(1)(g). The restriction upon such fundamental rights should be in consonance with the
mandate under Article 19(2) and (6) of the Constitution, inclusive of the test of
proportionality. This judgment concluded that right to internet is a fundamental right.

2. Shayara Bano vs Union of India and others16

In the case of Shayara Bano vs Union of India and others, the petitioner challenged that the
practice of Talak-ul-Biddat, also known as Triple Talaq. The draconian practice allowed
husbands to repudiate his wife by giving a divorce thrice in one sentence and was also
irrevocable in nature. An appeal under Article 14 was filed challenging its validity. The
Supreme Court laid down the judgment holding the practice of triple talaq unconstitutional
and stated that it was not an essential practice and was not protected by the exceptions laid
down in Article 25. Article 25 carried the right of every person to freely practice and
propagate any religion of choice and it can be restricted only in the context of exceptions
such as public order, health, morality and other provisions of Part III of the Constitution. The
said practice was against the other provisions of Part III namely Article 14 of the
Constitution.

The Court also dwelled upon religious practice and stated that essential religious practices
are those on which the religion was founded upon. Only if taking away of a practice causes a
16
AIR2017 SC 4609

Page | 108
substantial change in the religion then such a practice can be called as ‘an essential religious
practice”. The Court stated that though it was being practiced by the Hanafi School, it was
considered to be sinful and was also against the tenets of the Quran. It was further held that
the practice of triple talaq was against theology and laws and cannot be validated just
because it was being followed by numerous people as a custom. Hence, it was declared to be
unconstitutional and was set aside.

3. Indian Hotel and Restaurant Association (AHAR) and Ors. Vs. The State of
Maharashtra and Ors.17

In the year 2005, the Maharashtra government had imposed a ban on dance
performances in bars with the exception of hotels rated in 3 stars and above, as provided for,
under section 33 A and 33 B of the Bombay Police Act. The Public rational offered was that
these performances were obscene and morally corrupt. All the dance performance licences
were cancelled with the immediate effect resulting in unemployment of approx. 75,000
women workers which led the affected parties to file petitions in the Bombay High court. The
High Court gave judgement against the government which led to appeal in the Supreme
Court. On 10thJuly, 2013 the Supreme Court affirmed the High Court’s order.

In order to escape the order, the respondents instead of abiding by the order, swiftly
and cleverly introduced the Maharashtra Prohibition of Obscene Dance in Hotels,
Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act,
2016 and the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar
Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 which had
provisions on the same lines as that of the section 33A and 33B of the Bombay Police Act.
The provisions of the said Act and the conditions mentioned in the said Rules were so
stringent that it was impossible for anyone to fulfill them. It ensured that no licenses were
issued to any of the establishments. Therefore, three writ petitions were filed under Article 32
of the Constitution of India, namely, WP (CIVIL) NO. 576 OF 2016, WP (CIVIL) NO. 24
OF 2017 and WP (CIVIL) NO. 119 OF 2017 before the Supreme Court of India challenging
the same. Since this batch of three Writ Petitions had raised similar issues and prayers, they
were heard together and disposed by a common judgment. The Supreme Court allowed dance
bars to reopen, but imposed regulations. It said there should be a mandatory written contract
between owners and performers, and said there was no need for CCTV surveillance inside
the bars. The three-judge bench of Justices AK Sikri, Abdul Nazeer and Ashok Bhushan set
aside Section 6 of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and
Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016which forbade
the granting licenses to discotheques.

4. Shah Faesal and Ors. vs. Union of India (UOI) and Ors.18

Earlier in the year 2019, the President's Rule was imposed in exercise of powers under
Article 356 of the Constitution of India in the State of Jammu and Kashmir, which was
subsequently extended. Further, two Constitution Orders were issued by the President in
17
AIR2019SC 589
18
(2020)2MLJ536

Page | 109
exercise of his power under Article 370 of Constitution of India. Challenging the
constitutionality of said orders, Petitioners raised the contention that the present matter needs
to be referred to a larger Bench as there were contrary opinions by two different Constitution
Benches on the interpretation of Article 370 of the Constitution. The two judgments in
conflict were the Prem Nath Kaul case and Sampath Prakash case. It was held that the
judgments could not be interpreted in a vacuum and separate from their facts and context.
Further, the observations made in a judgment cannot be selectively picked in order to give
them a particular meaning. The Court compared the previous judgments and stated that in
Prem Nath Kaul, the Court had to determine the legislative competence of the Yuvaraj in
passing a particular enactment. The enactment was passed during the interregnum period,
before the formulation of the Constitution of State of Jammu and Kashmir, but after coming
into force of the Constitution of India.

The Court observed that the framework of Article 370(2) of the Indian Constitution was such
that any decision taken by the State Government, which was not an elected body but the
Maharaja of the State acting on the advice of the Council of Ministers which was in office by
virtue of the Maharaja's proclamation, prior to the sitting of the Constituent Assembly of the
State, would have to be placed before the Constituent Assembly, for its decision as provided
under Article 370(2) of the Constitution. It was stated that the Constitution Bench in the
Prem Nath Kaul case did not discuss the continuation or cessation of the operation of Article
370 of the Constitution after the dissolution of the Constituent Assembly of the State. This
was not an issue in question before the Court, unlike in the Sampat Prakash case where the
contention was specifically made before, and refuted by, the Court. The Court held that there
was no conflict in the judgments passed in Prem Nath Kaul case and the Sampat Prakash
case.

5. The Secretary, Ministry of Defence Vs. Babita Puniya and Ors.19

In 1992, the Central government issued a notification allowing females to join certain cadres
of the army like induction in Short Service Commission (hereinafter SSC), Intelligence
Corps, Corps of Signals, Regiment of Artillery, Army Service Corps, Education Corps, the
Judge Advocate General’s Department, etc. Prior to this, the roles were limited to medical,
dental, and military nursing service. The provision under Section 12 of the Army Act,
1950 that prohibited the recruitment of “females” into the army except- and to the extent
that- the Central Government allows. Women engaged in these services seek parity with the
male officers in obtaining permanent commissions.

In February 2003, Babita Puniya, a practicing advocate, filed a writ petition in the nature of
public interest litigation at Delhi High Court, seeking permanent commission for female
officers recruited through SSC in the army, at par with their male counterparts. Many other
women officers (both air and army officers) separately filed a petition for the same and hence
all the petitions were tagged with Babita’s petition. Towards the end of 2005, the Ministry of
Defence issued a notification extending the validity of the appointment scheme of the Indian

19
AIR2020SC 1000

Page | 110
Army for the women officers. In the year 2006, a notification was issued allowing the SCC
women officers to serve for a maximum of 14 years.

Major Leena Gaurav again filed a writ petition on 16th October 2006 primarily to challenge
the conditions of service imposed by the circulars previously and also seeking for the
permanent commission for the women officers. In 2007 Lt Col Seema Singh for the same
issue moved to the court. In 2008, the center decided to grant permanent commission to SSC
women officers in some departments such as the Army Education Corps, Judge Advocate
General, and the corresponding branches in the Air Force and Navy. Post which many other
petitions were filed challenging the circular issued in 2006 and 2008.

Finally, in 2010, the Delhi High Court decided to club all the petitions and directed Centre
and defence ministry to provide the permanent commission to SSC women officers of the Air
Force and Army who had opted for it and not yet granted. After the order of the Delhi High
Court, Army challenged the order in the Supreme Court but it very rightly refused to uphold
the order and said to implement the orders given by the Supreme Court. In 2018, the Central
Government told the Supreme Court that it is considering granting permanent commission to
women recruited through SSC in the army. In February, 2019 the government issued
guidelines that permanent commission will be granted to the women officers but
prospectively and commissioned that only those women will be eligible who commissioned
after this order is notified keeping the serving officers out of the ambit of the permanent
commission. It granted a permanent commission to new SSC officers in eight combat
roles.The major issues which were raised in the Supreme Court were whether women should
be granted Permanent Commission in the Indian Army, whether the guidelines issued by the
Government of India dated 15th February 2019 should be implemented and the conditions
governing the Women Officers in the Indian Army.

The Supreme Court bench led by Justice D.Y.Chandrachud challenged the notions given by
the Union and stated that they are entrenched in stereotypical assumptions of ascribed gender
roles for women. He further stated that it is a clear violation of their fundamental rights
guaranteed under Article 14 of the Indian Constitution. He said that although Article 33 of
the Indian Constitution did allow for restrictions on Fundamental Rights in armed forces it is
also clearly mentioned that it could be restricted only to the extent that it was necessary to
ensure the proper discharge of duty and maintenance of discipline. It was decided that policy
decision taken by the union allowing the women officers in PCs through SSC are subject to
some conditions.

Page | 111
Page | 112
 MODULE - IV
DISPUTE SETTLEMENT
THE ROLE OF ADR AND
ODRS

Page | 113
Page | 114
 MODULE IV – DISPUTE SETTLEMENT: THE ROLE OF ADR AND ODRS

Alternate Dispute Resolution

Introduction: The concept of Alternative Dispute Resolution (ADR) mechanisms is a

substitute to the conventional methods of resolving disputes. The process of resolving a
dispute through the court system is expensive and time consuming. Litigating even the
smallest complaint is costly and because of the backlog of cases pending in many courts,
several years may pass before a case is actually tried. For these and other reasons, more and
more business persons are turning to Alternative Disputes Resolution (ADR) as a means of
settling their disputes. ADR offers to resolve all type of matters including civil, commercial,
industrial and family etc. Generally, ADR uses a neutral third person who helps the parties to
communicate, discuss the differences and resolve the dispute. It is a method which enables
individuals and group to maintain co-operation, social order and provides opportunity to
reduce hostility, which is why it is also known as amicable dispute resolution mechanism.

Arbitration is an effective way of obtaining a final and binding decision on a dispute, or

series of disputes, reached by way an agreement between the parties, rather than coercive
power of the state.20 Arbitration is simple, informal and essentially private system of dispute
resolution. The most import aspect of arbitration is flexibility of procedure. Arbitration has
been accepted worldwide as the principal method of resolving international disputes for two
primary reasons: neutrality and enforcement. As to ‘neutrality’, international arbitration gives
the parties an opportunity to choose a ‘neutral’ place for resolution of their disputes and to
choose a ‘neutral’ tribunal. As to ‘enforcement’, an international arbitration, if carried
through to the end, leads to a decision which is enforceable against the losing party, not only
in the place where it is made, but also internationally, under the provisions of such treaties as
the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 also
commonly referred to as the New York Convention.21

Importance of ADR in India: ADR is of special importance for India. The Indian judicial
system is overburdened with more than 3 crore cases lying pending before it. ADR methods
can play an important role in reducing this burden from the shoulders of Indian courts. ADR
provides various modes of settlement including, arbitration, conciliation, mediation,
negotiation and Lok Adalat. Here, negotiation means self-counselling between the parties to
resolve their dispute but it doesn’t have any statutory recognition in India.

ADR is also founded on such fundamental rights, article 14 and 21 which deals with equality
before law and right to life and personal liberty respectively. ADR’s motive is to provide
social-economic and political justice and maintain integrity in the society enshrined in the
preamble. ADR also strive to achieve equal justice and free legal aid provided under article
39-A relating to Directive Principle of State Policy (DPSP).

20
Nigel Blackaby and Constantine Partasides, Redfern and Hunter on International Arbitration, (Oxford
University Press, 2009), 2.
21
Ibid, pp. 31-32.

Page | 115
Few Important provisions related to ADR

 Section 89 of the Civil Procedure Code, 1908 provides that opportunity to the people, if
it appears to court there exist elements of settlement outside the court then court
formulate the terms of the possible settlement and refer the same for: Arbitration,
Conciliation, Mediation or Lok Adalat.
 The Acts which deals with Alternative Dispute Resolution are Arbitration and
Conciliation Act, 1996 and The Legal Services Authority Act, 1987

Advantages of Alternative Dispute Resolution

 Less time consuming: people resolve their dispute in short period as compared to courts
 Cost effective method: it saves lot of money if one undergoes in litigation process.
 It is free from technicalities of courts, here informal ways are applied in resolving
dispute.
 People are free to express themselves without any fear of court of law. They can reveal
the true facts without disclosing it to any court.
 Efficient way: there are always chances of restoring relationship back as parties discuss
their issues together on the same platform.
 It prevents further conflict and maintains good relationship between the parties.
 It preserves the best interest of the parties.

Terms to Know

 Arbitration - A process similar to an informal trial where an impartial third party hears
each side of a dispute and gives a decision; which is final and binding on the parties.
Binding and Non-Binding - A binding decision is a ruling that the parties must abide be
whether or not they agree with it; a non-binding decision is a ruling that the parties may
choose to ignore
 Arbitrator - An impartial person given the power to resolve a dispute by hearing each
side and coming to decision and pass an award
 Hearing - A proceeding in which evidence and arguments are presented, usually to a
decision maker who will issue ruling
 Mediation - A collaborative process where a mediator works with the parties to come to
a mutually agreeable solution;

Various modes of Alternative Dispute Resolution

Arbitration: The process of Arbitration cannot exist without a valid arbitration agreement.
In this method parties refer their dispute to one or more persons called arbitrators. Decision
of arbitrator is binding on the parties and their decision is called ‘Award’. The object of
Arbitration is to obtain fair settlement of dispute outside of court without necessary delay and
expense.

 Any party to a contract where arbitration clause is there, can invoke arbitration clause
either himself or through their authorized agent which refer the dispute directly to the

Page | 116
 arbitration as per the Arbitration clause. Here, arbitration clause means a clause
whereby parties agree to refer the dispute to arbitration. Initially, applicant initiates an
arbitration by giving a notice to the other party to refer the dipute to arbitration and
appoint an arbitrator.
 Once the tribunal is established then the proceedings start byfiling a statement of claim.
 Statement of claim is a written document filed in the court or tribunal for judicial
determination and a copy also sent to the defendant in which the claimant describes the
facts in support of his case and the relief he seeks.
 The respondent replies to the arbitration by filing an answer against the arbitration
claim of claimant that specifies the relevant facts and available defenses to the
statement of claim.
 Arbitrators selection is the process in which the parties receive lists of potential
arbitrators and select the panel to hear their case.
 Then there is the exchange of documents and information in preparation for the hearing
called ‘Discovery’.
 The parties meet in persons to conduct the hearing in which the parties present the
arguments and evidences in support of their respective cases.
 After the witnesses examined and evidences are presented, then there in conclusion
arbitrator gives an ‘Award’ which is binding on the parties.

An important amendment has been introduced by the 2015 Amendment Act (Section 29-A)
according to which an award has to be passed with a period of 2 months from the date the
tribunal enters upon the reference.

Section 8 of Arbitration and Conciliation Act, 1996 provides if any party disrespects the
arbitral agreement and instead of moving to arbitration, moves that suit to civil court, other
party can apply the court for referring the matter to arbitration tribunal as per the agreement
but not later than the date of submitting his first statement on the substance of the dispute.
The application must include a certified copy of arbitration agreement and if courts satisfy
with it, the matter will be referred to arbitration.

Major kinds of Arbitration

(1) Ad-hoc Arbitration: Arbitration is said to be ad hoc when it is not only agreed to but also
arranged by the parties themselves. The parties create the procedure to conduct arbitration
proceedings also. If they fail to do so then it becomes the responsibility of the arbitration
tribunal. This enables the parties to tailor the procedure to its needs.

(2) Institutional Arbitration: When arbitration is conducted under the supervision of an

institution in accordance with its rules of procedure it is termed as institutional arbitration.
There are various institutes e.g. International Chamber of Commerce (ICC), London Court of
International Arbitration (LCIA), Singapore international Arbitration Centre (SIAC),
American Association of Arbitration (AAA) etc. to name a few which have their own set of
rules to conduct the proceedings.

Page | 117
(3) Statutory Arbitration: It is mandatory arbitration which is imposed on the parties by
operation of law. In such a case the parties have no option as such but to abide by the law of
land. It is apparent that statutory arbitration differs from the above 2 types of arbitration
because (i) The consent of parties is not necessary; (ii) It is compulsory Arbitration; (iii) It is
binding on the Parties as the law of land; For Example: Section 31 of the North Eastern Hill
University Act, 1973, Section 24,31 and 32 of the Defence of India Act, 1971 and Section
43(c) of The Indian Trusts Act, 1882 are the statutory provision, which deal with statutory
arbitration.

(4) Domestic and International Commercial Arbitration: If both the parties to an arbitration
agreement are from India the arbitration is called domestic arbitration and when at least one
of the parties is from outside India the arbitration is international arbitration.

International Conventions on Arbitration India is a party to the following conventions:

• The Geneva Convention on the Execution of Foreign Arbitral Awards, 1927; and
• The New York Convention of 1958 on the Recognition and Enforcement of Foreign
Arbitral Awards.

India became a party to the 1958 Convention on 10th June, 1958 and ratified it on 13th July,
1961. The government of India in consonance with the United Nations Commissions on
International Trade Law (UNCITRAL) drafted the Arbitration and Conciliation Act, 1996.
The purpose of this act was to make a provision for an arbitral procedure that is just, efficient
and encourages the settlement of disputes.

Advantages and Disadvantages: One distinct advantage of ADR over traditional court
proceedings is its procedural flexibility. It can be conducted in any manner to which the
parties agree. It may be as casual as a discussion around a conference table or as structured as
a private court trial. Also unlike the courts, the parties have the freedom to choose the
applicable law, a neutral party to act as Arbitrator in their dispute, on such days and places
convenient to them and also fix the fees payable to the neutral party. ADR being a private
process offers confidentiality which is generally not available in court proceedings. While a
court procedure results in a win-lose situation for the disputants, in an ADR process it is a
win-win situation for the disputants because the solution to the dispute emerges with the
consent of the parties. Lastly, as compared to court procedures, considerable time and money
is saved in ADR procedures. Another benefit of ADR is that the parties can choose someone
who is knowledgeable about the subject matter of the dispute. For example, in a construction
10 dispute, the parties may want to retain an arbitrator who has a vast knowledge of
construction, rather than rolling the dice with a judge who may have little or no knowledge of
the industry. Some court systems have started their own arbitration programs whereby certain
types of cases (usually small cases) are referred to a court-related arbitrator for resolution.

Some of the perceived downsides to arbitration are:

1) It is still expensive

Page | 118
 2) No appeal can be made against an award even if it is wrong. Though it can be set aside
on certain grounds like violation of public policy. .
3) In comparison to national courts the powers vested in arbitrators are very limited.

Mediation: Mediation is an Alternative Dispute resolution where a third neutral party aims
to assist two or more disputants in reaching agreement. It is an easy and uncomplicated party
centred negotiation process where third party acts as a mediator to resolve dispute amicably
by using appropriate communication and negotiation techniques. This process is totally
controlled by the parties. Mediator’s work is just to facilitate the parties to reach settlement
of their dispute. Mediator doesn’t impose his views and make no decision about what a fair
settlement should be.
The process of Mediation works in various stages. They are,

 Opening statement
 Joint session
 Separate session and,
 Closing

At the commencement of mediation process, the mediator shall ensure the parties and their
counsels should be present.

 Initially in the opening statement he furnishes all the information about his appointment
and declares he does not have any connection with either of parties and has no interest in
the dispute.
 In the joint session, he gathers all the information, understand the fact and issues about
the dispute by inviting both the parties to present their case and put forward their
perspective without any interruption. In this session, mediator tries to encourage and
promote communication and manage interruption and outbursts by the parties.
 Next is separate session, where he tries to understand the dispute at a deeper level,
gathers specific information by taking both the parties in confidence separately.
 Mediator asks frequent questions on facts and discusses strengths and weaknesses to the
parties of their respective cases.
 After hearing both the sides, mediator starts formulating issues for resolution and
creating options for settlement.
 In the case of failure to reach any agreement through negotiation in mediation, mediator
uses different Reality check technique like:

Best Alternative to Negotiated Agreement (BATNA)

It is the best possible outcome both the party come up with or has in mind. Its suitable
situation as each party thinks about their most favorable scenario looks like.

Most Likely Alternative to Negotiated Agreement (MLATNA): For a successful negotiation

the result always lies in the middle, mediator after considering both the parties comes up with

Page | 119
most likely outcome. Here result is not always in the middle but little left or right of the
Centre depending on negotiation situation.

Worst Alternative to Negotiated Agreement (WATNA): It the worst possible outcome a

party has in their mind for what could happen during negotiation. It may be helpful to the
parties and mediator to examine the alternative outside the mediation(specifically litigation)
and discusses the consequences of failing to reach agreement like: effect on the relationship
of the parties or effect on the business of the parties. It is always important to consider and
discuss the worst and most probable outcomes, it’s not always people get the best outcome.

Mediator discusses the perspective of the parties about the possible outcome at litigation. It is
also helpful for the mediator to work with parties and their advocates to come to a proper
understanding of the best, worst and most probable outcome to the dispute through litigation
as that would help the parties to acknowledge the reality and prepare realistic, logical and
workable proposals.

Conciliation: It is the process of facilitating an amicable resolution between the parties,

whereby the parties to the dispute use conciliator who meets with the parties separately to
settle their dispute. Conciliator meet separately to lower the tension between parties,
improving communication, interpreting issue to bring about a negotiated settlement. There is
no need of prior agreement and cannot be forced on party who is not intending for
conciliation. It is different from arbitration in that way.

 The party initiating conciliation shall send to the other party a written invitation to
conciliate under this part, briefly identifying the subject of the dispute.
 Conciliation proceedings shall commence when the other party accepts in writing the
invitation to conciliate.
 If the other rejects the invitation, there will be no conciliation proceedings.

Above provision clearly states conciliation agreement should be an extemporary agreement

entered into after the dispute has but not before. Parties are also permitted to engage in
conciliation process even while the arbitral proceedings are on(section 30).

Lok Adalat: Lok Adalat is called ‘People’s Court’ presided over by a sitting or retired
judicial officer, social activists or members of Legal profession as the chairman. National
Legal Service Authority(NALSA) along with other Legal Services Institutions conducts
Lok Adalats on regular intervals for exercising such jurisdiction. Any case pending in
regular court or any dispute which has not been brought before any court of law can be
referred to Lok Adalat. There is no court fees and rigid procedure followed, which
makes the process fast. If any matter pending in court of referred to the Lok Adalat and
is settled subsequently, the court fee originally paid in the court when the petition filed
is also refunded back to the parties.

Parties are in direct interaction with the judge, which is not possible in regular courts. It
depends on the parties if both the parties agree on case long pending in regular court can be
transferred to Lok Adalat. The persons deciding the cases have the role of statutory

Page | 120
conciliators only, they can only persuade the parties to come to a conclusion for settling the
dispute outside the regular court in the Lok Adalat. Legal Services Authorities (State or
District) as the case may be on receipt of an application from one of the parties at a pre-
litigation stage may refer such matter to the Lok Adalat for which notice would then be
issued to the other party. Lok Adalats do not have any jurisdiction to deal with cases of non-
compoundable offenses.

Benefits: The benefits that litigants derive through the Lok Adalat are many.

1. First, there is no court fee and even if the case is already filed in the regular court, the
fee paid will be refunded if the dispute is settled at the Lok Adalat.
2. Secondly, there is no strict application of the procedural laws and the Evidence Act
while assessing the merits of the claim by the Lok Adalat. The parties to the disputes
though represented by their advocate can interact with the Lok Adalat judge directly
and explain their stand in the dispute and the reasons therefore, which is not possible
in a regular court of law.
3. Thirdly, disputes can be brought before the Lok Adalat directly instead of going to a
regular court first and then to the Lok Adalat.
4. Fourthly, the decision of the Lok Adalat is binding on the parties to the dispute and its
order is capable of execution through legal process. No appeal lies against the order
of the Lok Adalat whereas in the regular law courts there is always a scope to appeal
to the higher forum on the decision of the trial court, which causes delay in the
settlement of the dispute finally. The reason being that in a regular court, decision is
that of the court but in Lok Adalat it is mutual settlement and hence no case for
appeal will arise. In every respect the scheme of Lok Adalat is a boon to the litigant
public, where they can get their disputes settled fast and free of cost.
Requirement for ADR Process in Intellectual Property Disputes: The scholarly efforts of
the makers of licensed innovation are esteemed based on the indication of the rights
appended to ‘intellectual output’. Intellectual-property protection gives a pointer to the maker
to apply his controls over outsiders, who, without his consent, attempt to utilize his rewards
for all the hard work. The method of reasoning for the formation of rights gets vanquished on
the off chance that they can’t be implemented. The proprietors of licensed innovation must
be their guard dogs and make a plan of action to the Courts for the encroachment of their
privileges. Indian Courts have taken a mammoth jump towards the advancement of a
protected innovation system in India; be that as it may, the accessible assets could be put to
better and legitimate use by the Courts in India if the other contest goal is sent. Matters
identified with patent law and copyright law, which include convergence with science and
comprehension of innovation, need unique arbitrating officials, who can appreciate the
interdisciplinary idea of the current case without lifting a finger.

The constrained idea of assurance given to the proprietor of protected innovation rights, calls
for creating systems to execute prompt and quick equity. While assessing the presentation
appeared by the Indian legal executive in cases identified with licensed innovation rights, the
Supreme Court of India has on account of Shree Vardhman Rice and Gen Mills v. Amar
Singh Chawalwala held that “Without going into the benefits of the discussion, we are of the

Page | 121
feeling that the issues identifying with trademarks, copyrights and licenses ought to be at
long last chosen speedily by the Trial Court rather than just giving or declining to give a
directive. In the issues of trademarks, copyrights, and licenses, the case is predominantly
battled between the gatherings about the transitory directive and that continues for a
considerable length of time and years and the outcome is that the suit is not chosen at last.
This isn’t appropriate. In our assessment, in issues identifying trademarks, copyright, and
licenses, the stipulation to Order XVII Rule 1(2) C.P.C. ought to be carefully agreed to by all
the Courts, and the knowledge about the suit in such issues ought to continue on an everyday
premise and the last judgment ought to be given regularly inside four months from the date of
the recording of the suit.”

Emphasizing its position in Bajaj Auto Ltd. v. TVS Motor Company Ltd., the Supreme Court
of India held that “experience has indicated that in our nation, suits identifying with the
issues of licenses, trademarks and copyrights are pending for a long time and prosecution is,
for the most part, battled between the gatherings over transitory order. This is an
unacceptable situation, and thus, we had passed the above-cited request in the previously
mentioned case to serve the parts of the bargains. We direct that the headings in the
previously mentioned request be completed by all courts and councils right now and
reliably.” It is clear that because of unjustifiable postponement in the removal of cases and
the expensive prosecution which could drag out the assurance agreed to the work, as opposed
to advancing the advancement of mentally secured work, the oppressed gatherings are
choosing interchange contest goals components for the headway of licensed innovation rights
in India. Also, the business idea of the exchanges engaged with the dominant part of
protected innovation-based cases requests such a methodology.

Points of interest in utilizing ADR in settling IP disputes: The benefits of ADR are
progressively perceived. They incorporate the accompanying:

 A Solitary Strategy- Court case in global IP questions can include a huge number of
methodology in various wards with a danger of conflicting outcomes. Through ADR,
the gatherings can consent to determine in a solitary system a question including a
correct that is secured in various nations, in this way maintaining a strategic distance
from the cost and unpredictability of multi-jurisdictional case.
 Neutrality- ADR acts as a neutral umpire. Neither of the parties can enjoy its home
litigation advantages.
 Expertise- The best part of this untraditional way of resolving disputes is that the
parties can choose the arbitrator who is expert in their field
 Confidentiality- The best and most secure approach to keep up the classification is to
determine the disputes through ADRs. Being parties centric it gives immense
importance to secrecy and confidentiality.

Page | 122
Confinements of utilizing ADR: ADR is likewise not flawless. It has a few
confinements:

1. There are a few questions that must be settled by formal prosecution.

2. The choice of the judge is authoritative just on the gatherings concerned.
3. As ADR is collaboration-based, non-cooperation by both of the gatherings makes it
less fitting.

ADR in Aviation Sector

 Meaning
 CAA’S ADR POLICY
 Implementation of ADR
 Take Up of ADR
 Voluntary Vs Mandatory ADR
 Aviation dispute settlement mechanisms
Meaning: Aviation, or air transport, refers to the activities surrounding mechanical flight and
the aircraft industry. Civil aviation includes all non-military flying, both general aviation and
scheduled air transport. In common terminology of international aspect, it is one of the
medium of transportation without which relations are imaginary. All the states on a global
advance are able to connect with each other through aviation. They can trade, travel, and
maintain link with each other. But as an integration of economic interests and international
prestige aviation triggers a large number of disputes and discontent.
The Permanent Court of International Justice (PCIJ) in the Mavrommatis Case has
defined dispute as "[a] disagreement on a point of law or a fact. A conflict of legal views or
interests between two persons."' Thus, to become a dispute a disagreement has to be specific
and understandable and its subject, concerning a matter of fact, law or policy, has to be well-
defined. Another element is the claim or assertion of a claim by one party and the refusal or
denial by the other party. One can distinguish between various international disputes on the
basis of parties involved, government, institutions, jurists or private individuals from
different states.
The Civil Aviation Authority's ADR Policy: Following consultation, in April 2015 the
CAA published its initial policy statement regarding the new ADR framework which we
intended to establish as a response to the European ADR Directive and UK ADR Regulation.
As set out in the consultation, the CAA’s vision was simple. In the first instance CAA
wanted airlines to have strong incentives to handle complaints properly in-house. And if this
was not happening, CAA wanted the consumers to have access to independent, impartial and
low-cost dispute resolution arrangements that would offer consumers an easier alternative to
court action.

Recognizing that private ADR had been the norm for many years in major consumer service
sectors such as financial services, telecoms and energy, we wanted aviation consumers to
also benefit from the simple, swift and effective approach to dispute resolution that ADR
brings. We felt that a system of private ADR, which is to say a scheme set up and directly

Page | 123
funded by the aviation industry but with clear and independent governance and regulatory
oversight by the CAA, would be the best way to bring about the improvements needed to
achieve the CAA’s vision.
The European Directive on ADR provided a legal framework for such an arrangement, along
with specific information tools to encourage clarity and transparency. However, the Directive
did not make it mandatory that businesses should participate in ADR, a feature which was
carried forward into the UK implementing legislation. A major focus of our policy was
therefore on creating the conditions within which voluntary ADR could develop and thrive.
This meant that, in developing our policy, we had to find a compromise between what
consumers and their representatives wanted versus what the airline industry was prepared to
accept in order for it to participate voluntarily in ADR.
The main contentious issue in terms of encouraging airlines to participate in ADR was not
the binding nature of the decisions made by ADR bodies, but rather was whether consumers
should pay a fee to use ADR. Unsurprisingly, our consumer research showed that consumers
overwhelming supported free access to ADR. However, many airlines were of the view that
charging consumers to use ADR would discourage spurious and poorly prepared claims,
which can be costly for airlines to administer – this was seen by airlines as a particular risk in
aviation because the vast majority of disputes relate to claims for substantial fixed sum
compensation under the sector’s consumer protection rules. We chose, therefore, to allow
ADR providers to charge a nominal fee of up to £25 per (unsuccessful) complaint, and this
was incorporated into our policy
However, we balanced this concession with a number of additional requirements.
1. That if a consumer’s complaint was upheld in any way, the consumer’s fee would be
refunded in full. On the assumption that complaint outcomes from ADR schemes in
aviation would be similar to those in other sectors, we were confident that this would
mean that the vast majority of consumers would not pay to use ADR.
2. That the fee could only be charged on a per booking basis. Therefore, if a single
booking covered a claim for compensation for four passengers (as is frequently the
case with complaints related to Regulation EC 261/2004), the consumer fee would be
charged only once, not four times.
3. In order to protect vulnerable consumers, we added a requirement that the consumer
fee would not be charged at all for any complaints relating to disability matters.
Finally, we committed to keep the practice of charging consumers to use ADR under
review to ensure that it was not deterring consumers with genuine claims from
enforcing their rights.
The issue of introducing ‘user pays’ charging into the CAA charging framework was also a
controversial issue for some airlines.14 From the CAA’s perspective, ‘user pays’ charging
was a key requirement since the costs incurred by the CAA in handling complaints needed to
be correctly passed on to the airlines causing the costs to be incurred. Not only would this
ensure that the costs incurred by the CAA would be fully recovered, but it would also
encourage airlines to get their own complaint handling ‘right first time’. Many non-UK
airlines did not support ‘user pays’ charging, not least because the costs incurred by the CAA
in handling complaints were primarily falling onto UK airlines at that time, due to the way

Page | 124
that the CAA charging regime is established. However, UK airlines made it clear to us that
they were not prepared to support the costs of both private ADR as well as the CAA’s
complaint handling service (which, if they participated in ADR, they would not be using).
Having considered the arguments for and against, the CAA’s view was that ‘user pays’
charging should be incorporated into its charging framework for the provision of its
complaints handling service. This was incorporated into our policy and the ‘user pays’
charging arrangement was implemented from 1 June 2016.
Implementation of ADR: The CAA’s principal role in ADR is as the ‘competent authority’
for the sector it regulates. As set out in the UK ADR Regulations, the key function in this
regard is the approval of organisations to be ‘ADR entities’ to which consumers can take
their complaints. To this end the CAA published, initially in July 2015, a set of detailed
approval criteria which applicants needed to demonstrate they met before being approved by
the CAA to handle consumers’ complaints.16 It is through its competent authority role that
the CAA has been able to implement its ADR policy, in particular its requirement for ADR
decisions to be binding on airlines, its rules on charging a consumer fee, and the scope of
complaints that should be handled by ADR.

Currently, two providers are approved by the CAA as ADR entities17 in the aviation sector:
CEDR and Consumer Dispute Resolution Ltd (trading as Aviation ADR). 18 CEDR was
approved in January 2016 and Consumer Dispute Resolution Ltd in May 2016. Each of these
underwent a rigorous approval process designed by the CAA to ensure that consumers would
be provided with an expert, independent and effective mechanism for resolving their
complaints. Through the approval process, scheme rules are specified and checked against;
funding mechanisms examined; impartiality provisions required; financial position
considered; and minimum scope assured. As a condition of its approval, a number of further
checks are made each year as part of the CAA’s continuation of approval process. This
includes data submission to the CAA, which also assists us in our other role as an enforcer of
consumer protection legislation, as well as further on-going checks as regards the ADR
entity’s financial position.
Whilst an ‘ADR entity’ is one approved by the UK CAA; an ‘EU listed body’ is an ADR
provider approved by another European Member State.19 The underlying ADR legislation
provides for the recognition by Member States of other European countries’ ADR providers.
This presented the CAA with some cause for deliberation as the requirements which the
CAA had put in place for those ADR entities which it approved were specific and intended to
deliver improved consumer outcomes and a high level of consumer protection. For example,
as set out previously, in developing our ADR policy we felt that it was necessary to provide
ADR entities with the ability to enforce their decisions on the airline and the requirement for
‘one way’ binding decisions became a central feature of our ADR policy as a result. In
contrast, many European Member States had not gone this far in implementing ADR in their
own countries, and the decisions of their approved ADR providers were either not binding or
binding only if both sides agreed. We were therefore concerned that if airlines were allowed
to signpost their consumers to any ADR provider throughout Europe, they might select the
least onerous option (so called ‘regulatory shopping’). We therefore decided that we would
be open to airlines requesting that they signpost a European (non-UK) ADR provider, but

Page | 125
only as long as certain quality measures were met, both upon initial approval and on an on-
going basis. CAA policy publication CAP 1408 sets-out our full policy in this regard.20 Our
key requirements are that complaints relating to flights into and out of the UK will be dealt
with; data must be submitted by the ADR provider to the CAA annually; airlines must
comply with the decisions of the ADR provider in the “vast majority” of cases; complaints
will be dealt with in English where requested; the minimum scope for complaints must align
with that implemented in the UK; and there must be a limit on the maximum fee charged to
consumers. We maintain oversight of these non-UK ADR schemes, and those airlines
signposting consumer to them, to ensure consumer outcomes are of a sufficiently high
standard. If this proves not to be the case then we can remove our approval for consumers to
be directed to those providers. 21 If this happens, the CAA’s own complaints handling
service will step in to take up consumer complaints about the relevant airline, or the airline
can consider other ADR providers.
Another priority for the CAA in its implementation of ADR was to ensure that consumers
would be made aware of the existence of ADR, how to access it, and what to expect.23 The
legislation underpinning ADR in the EU and the UK places certain obligations on businesses
to provide consumers with information on ADR. In its other role as a national authority for
the enforcement of sector specific and general consumer protection legislation, the CAA has
made considerable efforts to ensure that businesses meet these trader information obligations.
We have become aware recently of a small number of instances where consumers are not
being properly signposted to ADR at the point that the business rejects their complaint. A key
priority for us in this next year will therefore be to ensure that the airlines concerned comply
with their legal obligations to signpost consumers with outstanding complaints to the correct
ADR provider (and also to include information on ADR on their websites and in their terms
and conditions, as is required by the underlying legislation). Further, we will continue
undertake regular compliance checks on an on-going basis, working in conjunction with the
ADR entities themselves.
In addition, recognising that ADR was new to the aviation sector and, in this context, would
not be familiar to aviation consumers, and recognising that allowing multiple ADR providers
to operate in the sector could lead to confusion amongst consumers (an issue that was raised
by consumers in our research on ADR), we decided to provide a range of consumer
information on ADR on our website. Further, we decided to use our website to maintain a list
of airlines and airports that are participating in ADR, the ADR providers to which they are
signed up (including those using ADR providers in other EU countries), and their contact
details.

Take-Up of ADR: Airlines and Airports

Airlines: Since the vast majority of consumer complaints in the aviation sector arise in
relation to financial compensation for flight cancellations and long delays, we chose to focus
our efforts first on airlines, both in terms of promoting ADR in the aviation sector and
encouraging aviation businesses to participate in ADR. The CAA consulted with airlines and
other stakeholders on its ADR policy over the course of 2014 and early 2015. During that
time there was significant debate in the sector on ADR and its applicability to aviation, in
terms of both the principal and the practicality, as well as the ongoing role of the CAA in

Page | 126
handling consumer complaints. As set out above, in January 2016 CEDR was approved by
the CAA to handle aviation complaints. From that point we started to hear from airlines
which had either decided to participate in ADR with CEDR or which were in discussions to
do so. This was very encouraging and we were keen to see whether others ADR providers
would follow; indeed a number did. Consumer Dispute Resolution Ltd (trading as Aviation
ADR) was approved in May 2016.
The first airline to sign up to ADR was Thomson Airways, in January 2016. In June that year
a number of other airlines informed us that they had decided to participate in ADR, including
British Airways and Ryanair. Thomas Cook and Wizz Air followed in July 2016, with easy
Jet signing up in August 2016, and Flybe in September that year. This year we have seen
Virgin sign-up in January; Air France / KLM in April; and Monarch in July 2017. Delta and
Small Planet have also recently signed up. Based on 2016 passenger data, currently 78% of
passengers flying into and out of the UK are covered by an ADR scheme.
Although the take-up of ADR by airlines has, to date, been very good, we have seen a slow
down recently in the number of businesses volunteering to participate in ADR. The CAA’s
objective in relation to ADR is full coverage across the sector, and it is therefore
disappointing that a number of large airlines such as Jet2, Emirates, and Aer Lingus (which
between them carry over 16 million passengers to and from the UK) have failed to sign up to
ADR.
Airports: Although our initial focus in implementing ADR was on airlines, our ADR policy
statement envisaged that the ADR schemes which we would go on to approve would be able
to deal with airport related passenger disputes concerning disability issues. Therefore,
following the successful introduction of ADR for airlines, we re-examined our role in
complaints handling regarding UK airports for matters relating to EC Regulation 1107/2006
(concerning the rights of disabled persons and persons with reduced mobility when travelling
by air). We concluded that it would be appropriate to extend ADR to these types of
complaints, and to introduce a 'user pays' model of charging for airports (as we had done with
airlines). On this basis, the CAA decided that it should stop handling any complaints about
airports participating in ADR. But, we would continue to provide a backstop service for those
airports that decided not to, and would charge them accordingly
The first airport to sign-up to an ADR scheme was London City Airport in March 2017.
London Heathrow airport, the UK’s busiest airport for passengers needing mobility
assistance, signed up to ADR in June this year.26 The proportion of disabled passengers and
those with reduced mobility travelling through UK airports and covered by a CAA approved
ADR scheme stands at 76%. Although it is relatively early days in terms of airports’
participation in ADR, we are pleased to see that a number of large airports have elected to do
so. As with airlines, the CAA is keen to see full coverage of ADR across the sector.
However, recognizing that, for smaller airports, the number of passenger complaints relating
to EC Regulation 1107/2006 is likely to be extremely small, the CAA intends to focus its
efforts on encouraging the larger airports such as Birmingham, Luton, Glasgow and
Edinburgh to sign up to ADR.
Voluntary versus Mandatory ADR: As set out previously, the CAA’s policy position on
making participation in ADR mandatory for airlines and airports is dependent on the existing

Page | 127
voluntary approach delivering the net consumer benefits that we were originally seeking
from ADR. Although the take-up of ADR by airlines and airports has been good,
participation in ADR is still well short of the CAA’s ultimate goal, which is for full coverage
across the sector, and as a result a significant proportion of consumers are still not covered by
ADR. Making participation in ADR mandatory in aviation would require further
consideration, not least in relation to the legal and practical implications of doing so. Further,
achieving mandatory participation would require primary legislation and therefore it is a
decision for Government. It should be noted that the Department for Transport expects to
publish a new aviation strategy in draft, which we expect to consider consumer issues
including ADR. Although we will continue our efforts to promote full participation in
voluntary ADR, we will also work closely with Government on its aviation strategy and the
issue of voluntary versus mandatory participation in ADR.

Aviation Dispute Settlement Mechanisms

International Court of Justice (ICJ) and Aviation Dispute Settlement: The International
Court of Justice succeeded the Permanent Court of International after the Second World War.
It is one of the organs of the U.N.O. the basis of jurisdiction of the court is the consent of the
parties. However, it is the most difficult one to obtain and is not always forthcoming. The
jurisdiction of the court comprises of all cases referred to it. 2 Optional jurisdiction provides
that a State may confer compulsory jurisdiction on the court by making such declaration in
respect of any other State which also accepts similar obligation. 3 Such declaration may be
made unconditionally or on condition of reciprocity on the part of the States or for a certain
time.4 ICJ is not without its defects. The biggest defect is that the Court cannot exercise its
jurisdiction over a State unless the State agrees to its jurisdiction. Though it is treated as a
global court yet it cannot exercise jurisdiction over all the States as a matter of right. It does
not have a global jurisdiction.
Aviation dispute under Convention on International Civil Aviation, 1944: The manner in
which participants in the international civil aviation industry relate to one another, or fail to
relate to one another, may be traced back fifty years to the International Civil Aviation
Conference held in Chicago in November of 1944. Then the unpredictability of international
relations convinced many that stability could be secured by systems fostering cooperation
among States. The Convention5 provides for establishment of International Civil Aviation
Organisation (ICAO). 6 It superseded an International Commission for Aerial Navigation
(ICAN, or CINA) which was established under 1919 Paris Convention and Permanent
American Aeronautical Commission (CAPA), established under the auspices of an Inter-
American Technical Aviation Conference, held in 1937.7 The Convention establishes rules
of airspace, aircraft registration and safety, and details the rights of the signatories in relation
to air travel. The Convention also exempts air fuels from tax.
At the Chicago Conference, virtually all of the post war civil aviation powers gathered to
craft a multilateral agreement governing international civil aviation that would head off
potential economic and technical problems while laying the foundation for the future growth
and regulation of the industry. The drafters' hopes of reaching agreement on both economic
regulation (i.e., routes, rates, frequencies and capacity) and safety, fell victim to economic

Page | 128
and political rivalries, thus limiting the gathering's success to technical issues and the
creation of the International Civil Aviation Organization (ICAO)
Chapter XVIII of the Chicago Convention provides for adjudication of disputes by the ICAO
Council. It says: “If any disagreement between two or more contracting States relating to the
interpretation or application of this Convention and its Annexes cannot be settled by
negotiation, it shall, on the application of any State concerned in the disagreement, be
decided by the Council. No member of the Council shall vote in the consideration by the
Council of any dispute to which it is a party. Any contracting State may, subject to Article
85, appeal from the decision of the Council to an ad hoc arbitral tribunal agreed upon with
the other parties to the dispute or to the International Court of Justice. Any such appeal shall
be notified to the Council within sixty days of receipt of notification of the decision of the
Council.
Article 85 of the convention provides for the arbitration procedure. It states, “If any
contracting State party to a dispute in which the decision of the Council is under appeal has
not accepted the Statute of the International Court of Justice and the contracting States parties
to the dispute cannot agree on the choice of the arbitral tribunal, each of the contracting
States parties to the dispute shall name a single arbitrator who shall name an umpire. If either
contracting State party to the dispute fails to name an arbitrator within a period of three
months from the date of the appeal, an arbitrator shall be named on behalf of that State by the
President of the Council from a list of qualified and available persons maintained by the
Council. If, within thirty days, the arbitrators cannot agree on an umpire, the President of the
Council shall designate an umpire from the list previously referred to. The arbitrators and the
umpire shall then jointly constitute an arbitral tribunal. Any arbitral tribunal established
under this or the preceding Article shall settle its own procedure and give its decisions by
majority vote, provided that the Council may determine procedural questions in the event of
any delay which in the opinion of the Council is excessive.
There is confusion regarding the appeal process. Can the parties to the dispute choose
between the ICJ and the arbitral tribunal? Or where both the parties have accepted the
compulsory jurisdiction of the ICJ is it necessary that they submit their dispute to ICJ? The
Convention does not provide for any time limit within which the case before the ICAO
Council has to be disposed of. It also does not mention whether the appeal should be on
finding of facts or on point of law. It is also silent as to whether new issues may be
introduced at the appellate stage. The ICAO Council is composed of States and not
individuals and its decisions are more prone to be based on policy instead of legal grounds.
In May 2002 ICAO proposed changes in Dispute Settlement under the Chicago Convention.
Some changes have been proposed by ICAO e.g. Expedited settlement process working to a
strict timetable, using either the good offices of the mediator or dispute settlement panel
drawn from a group of acknowledged aviation experts, with the possibility of the third party
intervention. This mechanism is without prejudice to the continuing use of the consultation
procedure or subsequent recourse to arbitration. In fact States should first try to resolve their
differences through the consultation process. It appears that ICAO has tried to imitate the
provision regarding strict time frame for solving disputes as provided under WTO. But it is
still a proposal. The failure of the Chicago Conference to create a multinational framework

Page | 129
for international civil aviation relations relegated the task of crafting dispute settlement
procedures almost exclusively to States conducting bilateral negotiations
Agreement on Trade in Civil Aircraft under WTO: The Aircraft Agreement was
concluded on 12 April 1979 at the end of the Tokyo Round. It entered into force on 1 January
1980. During the Uruguay Round, the negotiators tried unsuccessfully to elaborate a new
Aircraft Agreement. At the end of the negotiations, the 1979 Aircraft Agreement was
annexed, unchanged, to the WTO Agreement. As of 31 December 2004, there were 30
Signatories to the Agreement. 14 This Agreement applies to the following products:
(a) All civil aircraft,
(b) All civil aircraft engines and their parts and components,
(c) All other parts, components, and sub-assemblies of civil aircraft,
(d) All ground flight simulators and their parts and components, Whether used as original or
replacement equipment in the manufacture, repair maintenance, rebuilding, modification or
conversion of civil aircraft.
Civil aircraft does not include military aircraft. Agreement on Trade in Civil Aircraft,
annexed to WTO also provides for dispute settlement for any dispute related to a matter
covered by this Agreement, but not covered by other instruments multilaterally negotiated
under the auspices of the GATT The Aircraft Committee reviews annually the
implementation of the Aircraft Agreement and, pursuant to Article IV.8 of the WTO
Agreement, submits annual reports to the General Council.16 At its meeting of 16 July 1992,
the Aircraft Committee also established the Sub Committee of the Committee on Trade in
Civil Aircraft in which negotiations under Article 8.3 of the Agreement would be conducted.
The Sub-Committee has not met since its fourteenth meeting in November 1995.
“Signatories agree that, with respect to any dispute related to a matter covered by this
Agreement, but not covered by other instruments multilaterally negotiated under the auspices
of the GATT, the provisions of Articles XXII and XXIII of the General Agreement and the
provisions of the Understanding related to Notification, Consultation, Dispute Settlement and
Surveillance shall be applied, mutatis mutandis, by the Signatories and the Committee for the
purposes of seeking settlement of such dispute. These procedures shall also be applied for
thesettlement of any dispute related to a matter covered by this Agreement and by another
instrument multilaterally negotiated under the auspices of the GATT, should the parties to the
dispute so agree.” 17 GATT here now refers to WTO.
Online Dispute Resolution: The term ODR refers to an array of dispute resolution
procedures. Some are fully automated, others, although they take place exclusively online,
involve a neutral human. A large group of processes that are included in ODR use digital
technologies to lesser degrees. Thus, online dispute resolution is not a monolithic concept –
for this reason, some authors argue that it is more accurate not to speak of ODR, but rather of
ODR techniques , or even of “a plethora of online dispute resolution services” devoted to the
expeditious and speedy resolution of disputes. The term ODR is used for mechanisms as
different as dispute prevention (education, outreach, rating and feedback programs),
ombudsman programs, blind bidding, automated negotiation, early neutral evaluation and

Page | 130
assessment, mediation/conciliation, mediation-arbitration (binding and/or non-binding),
arbitration, expert determination, “executive tribunals” or “virtual juries”. Based largely on
traditional (offline) alternative dispute resolution methods, such as mediation or arbitration,
and various hybrids thereof, ODR is sometimes equivalently labelled as e-ADR. Technology
via the Internet is considered a dominant feature of ODR as canvassed in legal literature.

The field of out-of-court dispute resolution has grown and flourished alongside the rapid
advance of technology for almost thirty years. Yet, a successful relationship between ADR
and technology could not have happened without the appearance of the commercial Internet
and World Wide Web a decade ago. Since then, one of the main challenges facing the global
network is how to resolve a growing number of cross-border disputes in the electronic
environment. Diverse legal and non-legal obstacles such as physical, linguistic and cultural
distances between parties, juridical difficulties concerning the applicable law, competent
jurisdiction and enforcement of judgments make traditional methods of dispute resolution
ineffective in the online environment. It has been argued that these deficiencies may
significantly hamper further development of the Internet and electronic commerce. Although
not free from similar and other concerns, ODR is being depicted as the potentially optimal
method to resolve disputes arising on the Internet.

Online dispute resolution (ODR) is a branch of dispute resolution which uses technology to
facilitate the resolution of disputes between parties. It primarily involves negotiation,
mediation or arbitration, or a combination of all three. Online dispute resolution (“ODR”) is
conceived as a means to achieve some of the most powerful legal ideals of the Western legal
tradition, which include:
(1) Legal Certainty: In making individual plans, decisions, and choices everyone is entitled
to know what the law is in advance.
(2) Access to Justice: Everyone involved in a dispute shall be entitled to an easily accessible
redress mechanism that provides for a timely resolution and effective remedies at reasonable
cost.
ODR is concerned with the civilized (i.e. peaceful) resolution of disputes between private
parties, and, secondly, with the prevention of such conflicts through the provision of legal
certainty. National legal systems fulfill the former function by offering plaintiffs to litigate
disputes before state courts which exercise mandatory jurisdiction over defendants, and the
latter by making the litigation process public, thus allowing for the proliferation of precedent,
as well as by the enactment of codifications of rules of law.
Regarding the dispute resolution function of private law, there are a variety of functional
equivalents to litigation available, which are collectively referred to as alternative dispute
resolution (ADR). On the one hand ODR relates to the resolution of disputes that result from
online conduct, i.e. from communications and transactions which come about through the use
of the Internet Domain name disputes are a prominent example as are disputes related to
ecommerce. On the other hand, ODR relates to the use of online communication technology
in the resolution process, even if the dispute itself has an offline origin. The provision of
alternative dispute resolution (ADR) services on the Internet has become quite popular.
Online dispute resolution (ODR) in India is in its infancy stage and it is gaining prominence

Page | 131
day by day. With the enactment of Information Technology Act, 2000, e-commerce and
egovernance have been given a formal and legal recognition.
Human beings, when it comes to disputes relating to money or status, are all the same,
everywhere round the globe. Selfishness, strength of money-power for protracting litigation
or ego is common features. If the conciliation /mediation solutions have been successful in
other countries, they must and will succeed here also. Where the problems are same, the
solutions could be similar, though there may be differences in degree or the methodology
adopted. The procedure for conciliation/mediation are today part of the systems of almost
every judicial administration both in common law countries as well as in countries governed
by civil law systems
Definitions: Dispute resolution techniques range from methods where parties have full
control of the procedure, to methods where a third party is in control of both the process and
the outcome. These primary methods of resolving disputes may be complemented with
Information and Communication Technology (ICT). When the process is conducted mainly
online it is referred to as ODR, i.e. to carry out most of the dispute resolution procedure
online, including the initial filing, the neutral appointment, evidentiary processes, oral
hearings if needed, online discussions, and even the rendering of binding settlements. Thus,
ODR is a different medium to resolve disputes, from beginning to end, respecting due
process principles. ODR was born from the synergy between ADR and ICT, as a method for
resolving disputes that were arising online, and for which traditional means of dispute
resolution were inefficient or unavailable.

Nature of ODR

Online and Offline Model of ODR: The potential use of the Internet to resolve International
disputes can be divided into two distinct areas: using Internet-related technology to resolve
“real world” disputes online or partially online and using the Internet to resolve disputes
arising on the Internet itself. For instance, in offline dispute, you can have a clause in your
contract with your supplier for resolution of dispute using one of the ODR platform. As far as
online disputes are concerned, the platform you are dealing with might have an inbuilt
mechanism as is the case with EBay.

Procedures adopted for ODR

Online Negotiation: Forums such as Cyber Settle uses Negotiation for Dispute Resolution.
Online negotiation can be of two types, closed model and open model.

Close Model– Online negotiation thrives on technological changes through blind bidding
which is one of the most prevalent dispute resolution services available online. The common
characteristic of these processes is the parties’ submission of monetary offers and demands
which are not disclosed to their negotiating counterpart, but are compared by computer in
rounds. If the offer and demand match, fall within a defined range or overlap the case is
settled for the average of the offer and demand, the matching amount, or the demand in the
event of an overlap. If the claim is settled, the participants are immediately notified via email

Page | 132
Open Model– Under the open model, a party can view the other’s party offer or demand only
after having made a demand or offer. Whenever any offer is within twenty per cent of any
demand, there is settlement of the median.

Online Mediation: A typical online mediation procedure takes place as follows. The
complainant initiates it by completing a confidential form on the provider’s website. Then, a
mediator contacts the respondent in order for him/her to participate. Both parties set forth the
mediation ground rules. The mediator communicates with the parties, sometimes jointly and
sometimes individually, to facilitate an agreement. If an agreement is reached, it usually
takes the form of writing.

Thus, the online process does not differ very much from the offline process, except for the
expanded use of technology. Email is the mediator’s best friend for purposes of framing and
moving discussion forward. But email was already used by offline mediators. In online
mediation, websites such as Smart Settle, Legal Face Off etc. are providing online mediators
with new tools to supplement email with other communication tools including electronic
conferencing, online chat, video-conferencing, facsimile and telephone.

Online arbitration: Online arbitration proceeds along different communication stages

(process agreement, initial presentations, rebuttals, consideration, and decision). Arbitration
is in general a much less complicated communication process than mediation. In the simplest
arbitration, software that allows positions to be stated and documents to be shared may
provide a sufficient frame for the process. There are many arbitration service provider in
abroad such as American Arbitration Association. AAA is known for handling large,
complex cases. In 2011, 46% of the arbitration filed with the AAA involved claims
$1,000,000 or more.

ODR is ideal for India: All the three approaches mentioned above may be used in India.
However, currently the third approach – arbitration approach – is used by NIXI and with
success. The other two approaches may work when the system develops and the thinking
evolves. At present, there is no use of these approaches in India. The use of ODR shall be to
supplement the offline dispute settlement system. For a large number of business disputes
with low value and having disputants at geographically far places, ODR seems to be the best
bet. The salient features of ODR which make it ideal for such business disputes in India are:

Speed: One of the most attractive features of ODR is its speed. Litigants in India are used to
getting matters resolved through the court system in years or decades. Even a suggestion that
this can be done by ODR in months or weeks is music to their ears. Businesses will do
anything to get their matters resolved speedily. And, this is precisely the reason why business
litigants use the services of extra-legal institutions (even mafia) to get a speedy settlement.
Private Banks are known to use the services of muscle-men to get the loan amounts back. It
was noticed by the Supreme Court and it came down heavily to hold that banks or for that
matter no one can use force to get the money back.

Convenience – Necessity: ODR is surely much more convenient than the normal ADR or
litigation. It would be a very attractive feature for the people who already have access to the

Page | 133
other systems of dispute resolution, for instance, ADR and litigation. However, for have-
nots, who do not have access to justice due to several reasons – poverty, illiteracy, lack of
awareness, etc. – convenience is not the deciding factor. They want to get their disputes
resolved and for them speedy and efficacious decision is much more important than
convenience. Thus, convenience is an additional advantage for the elite class of the society.
However, in case ODR achieves tremendous success vis-à-vis business disputes in India, it is
sure that this convenience shall become a necessity.

Ease of access: Anyone with access to internet can have access to ODR. And for access to
internet, one does not have to have a computer and internet facility at home or business.
Access is available through a very large number of cyber cafés, which are mushrooming in
every nook and corner of India. The charges are as low as Rupees 10 for an hour
(approximately 20 cents). There are plans by the government to have internet facility in each
and every village. Local Self Government is the model to be followed after amendments in
the Indian Constitution about fifteen years ago. The 73rd and 74th amendments to the Indian
Constitution in 1992 are milestones in establishing democratic decentralised administration
through local self-government in India. Even a low cost simple computer – called ‘Simputer’
– has been developed for use in remote areas where even electricity is not available. Indian
computer companies are selling a few models of the usual desktop for even less than Rs.
10,000 (approximately USD 200) and used desktops are available for as low as USD 40.
These can very well be used by ‘Gram Panchayats’ (local governing body in villages) for
providing access to internet. Several telecommunications companies have made the latest
technology available for internet through cellular phones. Thus, access should not be such a
major problem in the years to come. However, it will definitely take some years, may be five,
before it can be said with confidence that internet is available to the remotest village in India.

Efficient time management: In face to face (F2F) proceedings, the disputants with their
lawyers have to be physically present at every date scheduled in the court or other tribunals.
ODR does not require travel and attendance, hence, the business executives are available for
the company. The same is true for customers or even in non-commercial disputes for other
persons. This flexibility allows efficient time management and also gives a chance to prepare
the case well and make an argument as compared to the court where oral arguments have to
be made and rebutted at the same time.

Cost Savings: Since, no travel is required in ODR, there is a significant saving in travel costs
directly and a more significant saving indirectly in terms of availability of the disputant for
the major portion of time which would have otherwise been lost in travel. This saving is most
evident in cases involving international business disputes. Additional costs of board and
lodging in another city where the court is situated are also saved from being incurred.

Easy storage of digital data Storage of documents is pathetic in lower courts in India. With
rooms and rooms full of papers from floor to ceiling, it often becomes impossible to find a
particular file in time. There have been instances when court files have been destroyed by
termites, seepage of rain water, excess humidity through the walls or destroyed due to short
circuit of electric wires resulting in avoidable fire. Not to mention the natural calamities like
floods which recently happened in Mumbai in 2005. Thus, this is not a phenomenon in

Page | 134
villages of small towns but can also happen in a metro like Mumbai. Digital storage shall
secure the data in a neat manner and can be retrieved as and when required. With a large
number of software engineers and computer companies, there is no dearth of talent or
hardware for such storage.

No Geographical Barriers: In India, the Supreme Court has its seat in New Delhi and the
High Courts have their Principal Seats and Benches in the capital or another important city of
the provinces. Besides these higher courts, each district has a District and Sessions Court
which is the highest court in the lower judiciary. Many times, it becomes very difficult for
litigants to travel from remote villages even to the district courts, what to talk of the High
Courts and the Supreme Court. The inconvenience of frequent travel to the courts without
any or very little forward movement in the matters has a toll on the litigants and a large
number of them get frustrated by sheer waste of time, effort and money. Thus, more often
than not, it results in not having access to justice for a large section of the Indian population.
Moreover, for disputes having subject value too low, disputants are not even interested to
waste their resources knowing it fully well that it is better to ‘forgive and forget’ rather than
be ‘penny wise and pound foolish’

Since ODR does not require any travel, a disputant living in the remotest area of India can
take part in the proceedings from his home itself, provided internet is accessible. This feature
of ODR makes it one of the most easily available systems of dispute resolution. It is also true
for international disputes. Thus, availability of getting disputes resolved by ODR shall
encourage disputants to get their disputes resolved rather than suffer silently.

Problems ODR faces in India: The road for ODR in India is bumpy. ODR may have a
number of advantages and unique features which can help resolution of disputes in India,
there are a number of problems in using ODR for dispute resolution. Some of these problems
are as follows:

Trust and Confidence: Trust is the sine qua non of any dispute resolution system. India’s
Supreme Court and High Courts are independent and command enormous respect. This
respect emanates from the trust the citizenry have in them. It is not sure how much trust and
confidence the people have for ODR institutions.

Technology: People in general have distrust in technology. Some people in India do not even
use bank ATMs as they fear that in case the machine does not give them the correct amount,
there is no person available at that time to whom they can complain. There is a phobia for
technology also because of unfamiliarity and a sense of foreign involvement. It is true that
ODR system was not devised in India and hence, the technology associated with it also
comes from west. This feeling gives a sense of insecurity and fear that one may become a
slave to this technology. This is truer for the older generation. Younger people are more
adept at using technology. They are much more confident as they, in fact, create this
technology. Indian software engineers write a substantial amount of global software
including legal software. Thus, there is a clear case of age bias.

Page | 135
Lawyers: Shakespeare had written in one of his plays, ‘The first thing we do, let's kill all the
lawyers’. Advocates of ODR will surely agree with it. The lawyers are one of the biggest
hurdles with their mind-set of adversarial methods of dispute resolution. Also, there is a
potential conflict with the fee earning of lawyers if ODR is followed. Lawyers in general are
not trained for ODR in law schools. This makes the task difficult for the disputant to take a
decision to go for ODR when the lawyer is strongly in favour of litigation. The primary task
of a lawyer is to advise his clients on appropriate remedies and courses of action. Advise by
lawyers is fine for the court matters, but without any proper training for ODR, who will
advise them for ODR mechanisms. Thus, dependence on lawyers should be reduced which
means more awareness for the businessmen and masses.

Access: The digital divide between IT haves and IT have-nots makes access at this time more
difficult for the weaker sections of society. Issue of access to ODR shall broaden this gulf.
People with all the resources generally have familiarity with the system and they can with
some effort use the system for their own use. This makes the case for empowerment of the
weaker sections by providing them access stronger.

Barriers: Educational barriers shall prevent the uneducated from accessing ODR. Language
also becomes a barrier. English is generally the language used for internet and ODR, while a
large portion of work in lower courts is done in vernacular. The preference for English shall
put the locals at a disadvantage. Cultural barriers may also pose a problem. ODR system
transcends national boundaries as well as different cultures. This fact must be taken into
account. India – a country known for its ‘unity in diversity’ – is of continental dimensions
and a large number of different cultures thrive under the common umbrella. This fact is taken
care of in different courts in India, however, it is not certain how these differences shall be
factored in ODR

Personnel: Adequate number of qualified personnel to man the ODR institutions and provide
counsel to consumers and businesses is one of the major obstacles. The lawyers who have
been trained for decades together for the traditional form of practice would find it next to
impossible to switch over to the new trend of dispute resolution called ODR. Arbitrators
(decision makers in any role – negotiator, mediator, conciliator, etc.) in ODR need to be
specially trained for this special task. Teaching is not at all done for ODR in universities and
professional schools. Even ADR lags behind. Law schools have very few courses on ADR
and hence, it is difficult to get good law graduates with sufficient knowledge of ODR.

ODR not suitable for all disputes: Like ADR, ODR is also not suitable for all disputes.
Questions of intricate legal complexity are best decided in a court of law. Matters of criminal
nature, matrimonial disputes, and matters involving rights of citizens as against the State are
some of the examples which cannot be decided by ODR system. The matters which can best
be decided are business disputes – B2C and B2B. The rest of the disputes may be resolved in
the years to come by some suitable modifications in the model used.

Need for Robust online ADR and ODR Mechanisms during COVID-19 Pandemic: In
the current scenario where everything is chaotic, the need for moving to an online platform is
immense. However, in a situation where urgent issues are already pressurizing the Courts

Page | 136
with heaving burdens, thereby cluttering the digital medium, an issue like arbitration is better
being held up for the future. Anyways, to ease the burden upon offline arbitrators the online
arbitration mechanism shall be highly significant in the post corona period.

 The Supreme Court of India has sought to ensure access to justice during the ongoing
pandemic. Since March 2020, the Supreme Court has issued orders stating that it
would hear urgent matters via video conferencing and prescribed standard operating
procedures, including for advocates and parties for mentioning cases, e-filing and
hearings. Several High Courts and District Courts have also initiated online hearings.
The Supreme Court notified that physical appearance in court may be permissible if
parties consent and subject to availability of the bench and social distancing norms.

Given the existing backlogs and uptick in Covid-related disputes, arbitration may be
the preferred forum as opposed to judicial proceedings. The arbitration community
has steadily adopted new technologies over time to assist in resolution of disputes.
For instance, it has become fairly common practice for case management conferences
to be conducted via video-conferencing and where circumstances justify it, cross-
examination of some witnesses and experts may take place remotely. Electronic
document storage and trial presentation are a practical option for international
arbitrations and will now be the new normal for domestic arbitrations in India. Parties
in India may accordingly resolve their disputes online via arbitration and approach
courts only for reliefs and/or enforcement of the arbitral award. Arbitration is a
procedure in which a dispute is submitted, by agreement of the parties, to one or more
arbitrators who make a binding decision on the dispute. In choosing arbitration,
parties opt for privatization of justice instead of going to court. Depending on the
nature of the dispute, the potential advantages of arbitration include: Time,
Flexibility, Cost, Expertise, The Department of Justice in 2018, urged government
entities to explore alternative methods for settlement of disputes such as mediation,
arbitration, conciliation, online or otherwise. The department of Justice noted that
there were more than three crore cases pending in various courts and 46% of these
involved government entities. The increasing support for arbitration by private
parties, government and judiciary could ensure ease of doing business and make India
a preferred destination for foreign direct investment.

Systems for the Future: Vision of ODR: Justice DY Chandrachud, Judge, Supreme Court
of India, on Technology and Access to Justice

The question today is how well can we adopt technology to enhance access to justice and
strengthen rule of law. Technology can be disruptive and there is a technological divide in
India. We should use technology to promote a sense of inclusive justice, justice for which the
system is meant to deliver a service.

 Parameters of ODR:
 Technology to promote user confidence in the process
 Incorporate elements of design thinking to understand user needs for an ODR
platform

Page | 137
  Employ data management tools to ensure predictability, consistency, transparency,
and efficiency of the judicial process

Overall, we need a fundamental change in mind-set – dispute resolution to be seen not as a

court where justice is administered, but as a service which is availed of. Commercial dispute
resolution has certain important values which must sub serve the usual court system – and
that is the importance of ODR in technology. (1) Process to be participative (2) Party
autonomy

ODR to have a multi-pronged, multi sectorial initiative that focuses on:

 Dispute resolution: resolving disputes that reach the courts through open, efficient,
transparent process
 Dispute containment: Only those disputes that require judicial resolution should reach
the courts. Matters which do not require judicial resolution shouldn't reach the courts at
all.
 Dispute avoidance: Facilitate and ensure through ODR that a problem does not reach the
stage of a dispute. This would ensure a problem does not become a dispute.

Process automation is minimal use of technology. Use technology to transform avoiding and
containing disputes, and resolve if necessary. There is a difference between pre litigation
ODR and court annexed mediation. Parties are entrenched at the time of court-annexed
mediation. Pre-litigation ODR is even before a dispute has reached the stage of a dispute.
ODR can step in before erosion of trust takes place between the parties, and before partners
become adversaries.

Responsibility of all the stakeholders:

 The providers of technology enabled services: The tech enabled service providers
create a platform where parties can be made aware of their rights, the remedies which
are available to them, and create facilities for negotiation and mediation with neutrals.
 Professional bodies: who will offer trained personnel. They could be law firms on a
standalone basis, or as a consortium of service providers.
 Industry: The industry must internalise dispute containment and dispute avoidance,
perhaps by introducing contractual clauses, which mandate the requirement of going to
mediation or negotiation before accessing any legal remedies.
 Governments and courts: Important to understand where disputes arise, what
aggravates them, what mitigates them. Open API’s to unlock creativity and
entrepreneurial energy of private sector players in the judicial process. The
Government can also identify disputes most suitable for ODR. This is an opportunity
for the Government to employ objective AI tools to aid government litigation.

Create mechanisms for incentives and disincentives for taking recourse to ODR. And finally,
in the short term, in the context of COVID, we have to create incentives for recourse to ODR
by recognizing the role of private, voluntary ODR by encouraging businesses to seek
recourse to ODR technology.

Page | 138
Enabling Action for Nationwide ODR Justice Sanjay Kishan Kaul, Judge, Supreme Court
of India, How do we encourage pre-litigation ODR that does not have to come to court
first: Feasible Models and Enforceability

 Litigants do want their disputes resolved expeditiously. Today, we can benefit from
people having learnt from mediation and set up private mediation institutions, and is the
time to rope in private mediation platforms along with court annexed mediation.
 Platforms must ensure that the various steps and processes of mediation can happen
online, and ensure confidentiality for people to trust the process.
 While the current unforeseen situation is unpalatable, we can make good of difficult
situations. Resolving COVID related disputes should be of importance, and ODR can be
employed for those purposes. Eventually, ODR can be employed for other cases,
including personal disputes. ODR is most suitable for commercial disputes.
 Identify methodology for Government to settle some of the Government litigation, to
ensure clarity and predictability for the Government officers to do so.
 Inspiration can be drawn from the Hong Kong Government model of introducing an
ODR scheme for MSME, and an “opt-out” model will work better in the Indian context
than an “opt-in” model where parties would be hesitant to experiment with mediation.
 Opt-out model compels the parties to sit together, which enables parties to resolve
disputes., after which they can explore mediation and arbitration. Italian model that
requires people to approach mediation before filing a case will be useful to the initiation
of mediation in India.
 Mediation and Conciliation Project Committee, headed by Justice Nariman, J. Malhotra
and myself as its members have taken an initiative of constituting a committee to draft a
possible central legislation for mediation which can be proposed to the central
government. This Committee has representation from expert lawyers mediators with
proposed consultation with some expert foreign mediators based in Singapore and U.S,
and the whole process should be complete very soon.
 Everybody, including the Government is concerned because of the unfortunate situation
that we must resolve disputes. In fact, this resolution of disputes is part of the economic
revival.

Anoop Kumar Mendiratta, Law Secretary, Government of India, on Technology and

Alternative Dispute Resolution

 The aim is to provide an affordable, accessible, and effective ODR and the concern
remains how can the Government and various stakeholders can facilitate ODR.
 At a time when technology plays a crucial role, ODR is much more than replicating
the existing process of ADR online. The objective is to contain and resolve disputes
also using analytical insights.
 For a transformative impact, we need to develop digital infrastructure to reach the
masses, and we also need a change in mindsets. The statutory framework would also
require some incidental changes.
 Identify disputes suitable for ODR. Collaboration between ODR centres and public
institutions could be explored for Motor Accident Claims Tribunals, banking
disputes, service disputes, etc.

Page | 139
  The Government is open minded and shall help alleviate concerns regarding ODR.
Functioning between the private ODR players and the ADR providers needs to be
complemented to ensure that online resolution can reach the different industries,
locations and parts of the country and also support the public institutions in a big way.

Unlocking Opportunities for ODR Justice Indu Malhotra, Judge, Supreme Court of
India, on the Potential and Possibilities of Online Dispute Resolution

 ODR which was at an infancy stage in India, has now acquired greater importance
due to COVID19.
 Advantage of ODR is that it will provide expeditious resolution of disputes. Further it
is far less expensive, and economical as well.
 So far, India has followed the opt-in model, which means that option of going into
mediation is voluntary. Italian model, by contrast, is the opt-out model, under which
it is mandatory to enter into mediation for at least one session, and then the parties
have the liberty to opt out if they feel so.
 A hybrid of the two may be more successful for India, because the opt-in model may
defeat the purpose of mediation. It should be made mandatory, and should cover
about three sessions, otherwise the parties may treat it as a mere formality, and opt-
out after the first session is over. A hybrid of the opt-in opt-out model may work
better for India.
 Another area which has great potential for dispute resolution through the ODR
mechanism are IBC disputes. ADR modes should be used by creditors and debtors to
resolve issues in the shadow of insolvency, particularly now post COVID19. Low
volume, high volume cases could be referred to online dispute resolution
 A scheme similar to the Hong Kong ODR Scheme for the MSME sector could be
formulated for India for commercial disputes having high volume and low-value
transactions.
 The need of the hour today is to develop a robust ODR platform, which is easily
accessible, user-friendly, less expensive and efficient for resolution of disputes.

The Uniform Domain Name Dispute Resolution Policy (UDRP): Conventionally

arbitration involves dispute resolution through the delivery of legally binding decisions, i.e.
has the same enforceability before the Courts as any other judgements. Non-binding
arbitration processes may also be effective when using ODR tools, as settlements are often
encouraged by them. Moreover, self-enforcement measures may review the effects of non-
binding processes. The most significant example is in the creation of UDRP by Internet
Corporation for Assigned Names and Numbers (ICANN) UDRP has been referred to as an
administrative process by some commentators. In any case, the UDRP has created a clear
global ODR process, allowing trademark owners inefficient fight against cybersquatting. The
UDRP is used for resolving disputes between trademark owners and users of registered
domain names in bad faith purporting to resell it for profitable exchange, or taking advantage
of a trademark reputation.

Page | 140
Challenges In Online Arbitration: Besides being a boom in the dispute settlement system,
it comes with its own challenges and difficulties. Online Arbitration faces challenges in
relation to-

1. Power or system failure and potential inaccessibility- For some individuals, access to
computers and internet may be a great challenge. Even after gaining access to a
computer and internet, they might not be comfortable in using it. The proceedings may
last for hours and the requirement of continuous internet access may pose a threat for
those having limited access.
2. Place of arbitration- determination of seat of arbitration is one of the greatest
difficulty faced in online arbitration. It is important to decide the place of arbitration as
it will determine the jurisdiction of courts for setting aside the award. The place of the
arbitration can be decided by the parties. In case parties fail to decide the issue, this is
decided by the arbitrator.
3. Confidentiality issue- since online mediation creates an electronic record, this may
pose a great threat to privacy and confidentiality. This could enable a party to print out
and distribute e-mail communications without the knowledge of the other party.
4. Less effective- any dispute can be redressed more effectively if the parties to the
dispute are personally and physically present before the arbitrator. Moreover, online
communications do not express the pitch, tone and volume of the participants.
5. Limited scope- Online dispute typically concern small sums of money. It has a limited
range of disputes. It handles only those issues where the amount of settlement is the
only undetermined issue.

ODR Implications: Present Realities, Pressing Problems and Future Prospects

The current state of the regulatory framework for online dispute resolution: At the peak
of the Internet boom of the late 1990s, it appeared that ODR was developing at a satisfactory
pace without the involvement of government. The easy availability of high-tech venture
capital allowed ODR enterprises to appear and grow quite rapidly. Both governments and
business stakeholders were anxious to foster marketplace competition. Many ODR providers
called for a hands-off approach from government and argued that ODR services would “take
root on their own.” Regulations were kept to a minimum in order to encourage new entrants
and greater consumer choice. Self-regulation initiatives, such as codes of conduct or
trustmarks, were growing “slowly but steadily.”

E-commerce industry was encouraged to build ODR into business practices but not required,
or overseen, to do so. As reported by the UNCTAD Report, when the US government
convened its first conference on ODR in June 2000 at the Federal Trade Commission it was
clear that “it was leaning toward industry self-regulation.” “In the freewheeling spirit of the
Internet revolution, self-regulation seemed the logical course. Somewhat surprisingly, even
when the Internet bubble burst, the regulatory approach to the ODR did not change. In 2002,
it was – as noted by Rule – “very hands-off”, and government agencies both in Europe and
America “seemed to be content with self-regulation.” It is needless to say that the self-
regulation approach has been always preferred by business wishing to avoid additional
regulation whenever possible. Thus, while businesses have often supported the application of

Page | 141
ODR, especially to B2C disputes, at the same time they have wanted “government to avoid
getting involved.” As discussed by Rule, “businesses mostly want to implement ODR
programs to shield them from liability and court proceedings”, for example, “many
businesses are interested in binding arbitration with their consumers and business partners for
exactly this reason. The fear of financial exposure in court is a formidable one. The fear of
class action lawsuits is also formidable.

The first doubts regarding the self-regulation approach were raised by consumer groups
having a long history of disagreement with business interests. These doubts arose when some
e-companies suggested that ODR be integrated into their e-commerce systems as a
mandatory step: that is, disputants would have to engage in ODR before being permitted to
go to court. Because most consumer groups were “steadfast in their demand that consumers
must retain access to court”, they expressed their strong objections to such suggestions. As a
result, consumer advocacy groups became willing to entertain the possibility of government
intervention in setting and enforcing new standards for ODR. Then, not only consumer
organizations, but also other not-for-profit entities, governments and international bodies
raised concerns regarding the performance of ODR providers, particularly in the B2C
context. The shortcomings had to do with the lack of transparency in the conduct of ODR
providers, the lack of standards for ensuring the neutrality of providers and neutrals
employed by them, the lack of appropriate complaint mechanisms, and the failure to
accommodate cultural and linguistic differences.

Even when facing these clear deficiencies, ODR stakeholders and policy-makers did not
decide to (or were not able to) take any decisive steps to correct the regulatory framework.
By and large, their actions were limited to the sphere of norms. Diverse non-binding and
unenforceable standards for ODR service provision have been issued. Among the
organizations that have compiled these standards were the OECD, the G-8, the European
Union, governmental agencies in Canada, Australia, Japan, New Zealand and the United
States, the International Chamber of Commerce, the Better Business Bureau, the Global
Business Dialogue, and the Trans-Atlantic Consumer Dialogue. On the one hand, it proves
that the problem has really existed and attracted a lot of public attention. On the other hand
however, as noted by Rule, “it is easy to get lost in all of these different standards
documents.” Their regulatory influence upon ODR practice appears debatable.

There are several reasons for governments to open the door to more aggressive regulatory
involvement. The hands-off approach, in which the driving force is the power of the
marketplace, has been unsuccessful in regulating online dispute resolution. The power and
dynamics of the ODR market forces are currently weak. The hands-off approach could be
potentially effective if the market had just emerged and many new players were appearing.
This would be also an effective approach for a developed market where clients do derive
benefits from real competition between businesses. Neither of these is however the ODR
market of today. This is a market of insufficient information and limited client choice. ODR
providers experience difficulties getting new cases. E-companies do not seek to attract more
clients by offering them more convenient modes of dispute resolution.

Page | 142
In their recent book, Ponte and Cavenagh suggested that “e-companies must tread carefully
in their selection of ODR providers. At a minimum, an e-business should determine if the
ODR provider belongs to relevant professional organizations, adheres to current ADR ethical
standards, requires specialized ODR training for its neutrals, and complies with the ABA
Task Force’s Recommended Best Practices.” Although generally plausible, “the minimum”
proposed by Ponte and Cavenagh appears somewhat troublesome, and often hardly
achievable. First, there are many ADR/ODR professional organizations and it may be
difficult to find out which one is “relevant”. Second, ADR ethical standards (again, the
question arises which ones are “relevant”) will not always be fully adequate for ODR. By
trying to merely transfer ADR standards to the ODR world, the role of technology and other
unique challenges of ODR may be overlooked. Finally, while the ABA Task Force’s
Recommended Best Practices may appear important in one way or another to ODR providers
in the United States and North America, they are in fact only one of numerous standards, and
remain largely unknown worldwide.

The exclusive reliance on market forces, free competition, and privately-made norms in the
context of regulation of online dispute resolution raises important concerns. “Dispute
resolution” is not a regular product or service. It is debateable whether market and norms, in
the absence of law, are capable of providing adequate incentives to put ODR programs in
place and make them fair and effective.

Major deficiencies of the current ODR regulatory framework: There are numerous
issues in online dispute resolution that presently appear “insufficiently regulated.” As
discussed, this state of “insufficient regulation” results not only from lack of
comprehensive ODR law, but also from the weaknesses of the other modalities of
regulation. Certainly, law is not always the best means to regulate. In cyberspace, like in
the physical world, law, market, norms, and architecture all interact to regulate human
behaviour. To take an example, if an ODR provider charges too much for their services,
such a problem should rather be solved by market than by law. If the provider ignores
clients’ emails about their pricing, likewise, norms seem to be more appropriate than
law. If the provider tries to use a non-existing credit card number, they will probably
fail not because it is forbidden by law, but because a computer system will not
recognize a given number. Finally, when fraudulent charges are made to a client’s credit
card, law must come into play. Thus, law and the other modalities co-regulate the field
of online dispute resolution. Some of the deficiencies of the existing ODR regulatory
framework have been already illustrated in the previous sections of this paper, this
section highlights and explains them in more detail.

Several issues arguably ought to be regulated by law, and no other modality of regulation
seems to be capable of replacing law in these situations. Such an issue is for instance whether
an ODR clause contained in a contract, or increasingly often in a website’s terms of use,
should be enforceable. This problem cannot be satisfactorily answered by technology,
market, nor any norms other than law. It appears to be the necessary role of legislative
authorities and courts to deal with the problem of ODR clauses’ enforceability. Likewise,
such issues as whether the limitation period should be suspended while the parties are
attempting to resolve their dispute by ODR (and if yes, under what conditions), the extent of

Page | 143
evidential privilege (whether all or some ODR communications are protected from disclosure
in any subsequent proceedings), the (de-) localization of ODR (e.g., “place of arbitration” has
been traditionally needed to establish a “territorial” link to lex arbitri), liability of ODR
neutrals and ODR providers, and finally, enforceability of a settlement or award, also seem to
inevitably belong to the domain of law.

It should be noted that some of these issues are somewhat regulated, although only in a few
jurisdictions, and in relation to B2C disputes. In general, in disputes with consumers, a wide
range of consumer protection laws may come into play, and ODR providers often look to a
handful of existing laws concerning B2C offline alternative dispute resolution and try to
guide their conduct based on them. This situation is not satisfactory for at least three major
reasons, however. First, repeatedly, all parties suffer from legal uncertainty. The mantra in
this paper is that the growth of, and confidence in, online dispute resolution are inherently
dependant on legal certainty. Second, in the online settings, the distinction between
consumers and businesses becomes vague. When entering into a standard online agreement
with, say, Microsoft, the bargaining power of small or even medium enterprises is not
different from one represented by a consumer Arguably, such businesses should be granted
wider protection, similar to consumer laws, when contracting on the Internet. Finally,
consumer protection laws are currently territorially limited and differentiated which stands in
stark opposition to the multi-jurisdictional and “borderless” nature of cyberspace.

Several important issues in the ODR regulatory framework of ODR come down to the
problem of lack of transparency and appropriate information. In this context, not only law,
but all the modalities of regulation should play their roles. At present, many commentators
observe that it is difficult “to get accurate information about ODR and ODR providers.”
While most ODR providers disclose information on the services they offer, inadequate
information is given on their governing structure, funding models, fees, officials and
shareholders, and finally, users and results of ODR processes. Yet transparency should be a
baseline standard for online dispute resolution. As noted by Rule, this issue “enters into
dispute resolution in two different ways: on the front end, parties need to understand what
they’re getting involved in; […] on the back end, it is also important to have transparency in
ODR processes for outside observers.” The latter category is certainly more problematic
given the traditionally confidential nature of out-of-court dispute resolution. However, it is
important to allow outsiders to get a sense of what mechanisms are being used to increase the
overall confidence towards ODR.

The regulatory framework should ensure that full information about both the tools, the
neutrals, and the service provider in general, etc., is disclosed. This is necessary to enable
Internet users to make truly “informed choices” concerning not only specific ODR providers,
but also websites where they shop online and different options of dispute resolution. Since
the other modalities of regulation presently fail to ensure adequate standards and incentives,
it appears plausible to impose certain minimal disclosure requirements by law.

For e-companies, in turn, information on applicable dispute resolution procedures could

become an important component of each commercial website. It is debateable to what extent
(if any) that should be enforced by law. Currently, the provisions regarding dispute resolution

Page | 144
are frequently “buried” at the end of the website’s terms and conditions. Therefore, the
majority of the website’s visitors have no idea of what would happen in case of a dispute.
Yet, there is no doubt that the dispute resolution procedure’s terms should be brought to the
users’ attention in an effective fashion. They could be provided at least with an easily
accessible hyperlink, or a dispute resolution icon, on the main page of a given website which
would lead directly to the dispute resolution clause. This would allow potential customers to
identify the existence of an ODR policy or program before making any purchases. In this
way, again, one could make a more informed choice whether to continue to interact with a
given website. Such a standard is not unprecedented: many corporate websites have recently
implemented similar changes in relation to personal data and privacy policies. Finally, in an
effort to help educate consumers and other businesses about ODR, e-businesses could
provide hyperlinks to major ODR resource centres that offer objective descriptions of ODR
processes and specific ODR providers and services on their websites.

Today, lack of complete information on ODR provider’s governing structure, business

connections, etc., often raises doubts relating to the independence of ODR providers and
their stakeholders, as well as the neutrality and impartiality of individual mediators or
arbitrators. The Consumers International 2001 Report has found that most online ADR sites
do not give adequate assurance of impartiality of their services. There is a risk that ODR
providers will become too closely tied to business organizations because the latter are the
most important customers of the former. It is needless to say that while ODR providers
should stay focused on the needs of their customers, they should not get “too close.” Thus, a
number of authors expressed concerns about neutrality and fairness of ODR processes. Rule
observed that “ODR often encroaches on legal rights, such as due process.” In addition, on
the Internet, consumers can easily trade-off fairness of a dispute resolution procedure for
other, primarily economic, values. The Internet enables online shoppers to look for better
prices all around the world. When they do so, they frequently forget about other aspects of
each offer, such as whether and how a dispute would be handled. Certainly, all the modalities
of regulation have their roles to ensure that ODR processes are fair, impartial and transparent
– technology, because – as suggested by Thiessen and Zeleznikow – the quality of neutrality
can be improved with automation; markets, because the fair terms of handling complaints
and dispute resolution may attract more clients; finally, norms and especially law, to protect
the fundamental rights.

Only law is capable of protecting the right to trial, however. ODR programs by and large are
currently neither binding nor mandatory based on law; nonetheless, many businesses want
them to be mandatory, if not by virtue of law, then as a result of other norms (most often
diverse contractual obligations). Consumer groups argue that the reason why businesses want
ODR to be a compulsory stage for online disputes is that “it provides an additional step in the
process that might dissuade some consumers from escalating their complaint.” In addition,
ODR programs which are not entirely voluntary appear problematic in light of the fact that
many Internet users still do not have convenient access to technology or do not have
sufficient IT skills. The validity of mandatory ODR clauses is largely untested and “it is
unclear whether or not such pre-dispute clauses will also find judicial support.” In this
context, law appears to be the only modality of regulation that can guarantee that consumers
will not lose their ability to obtain redress in a public forum like a court.

Page | 145
Law should also be an ultimate means to regulate liability of the individuals or entities
responsible for ODR processes. As observed by Rule, so far regulatory discussions have
focused on the administrative organizations, including most importantly ODR providers. Yet,
this approach tends to overlook the role played by other ODR stakeholders. First and
foremost, it appears crucially important to set enforceable standards applicable to all ODR
neutrals. While ODR providers usually have brick-and-mortar offices incorporated in one
jurisdiction or another, and might be relatively easily held accountable for any irregularities,
online mediators and arbitrators can work and travel anywhere in the world, subject to a wide
variety of different laws and jurisdictions. Accountability of online neutrals is therefore
harder to ensure. In addition, it is easier for them to make mistakes than in ADR, especially,
when they use sophisticated technology. Moreover, an ODR process is shaped not only by
“live” participants but also by online architecture and software tools designed by
“anonymous” software engineers. Many rules of ADR practice presume that the process is
being run by a human, and in the world of ODR, they must be reformulated. A central
problem is no longer solely how to combat human neutrals’ tendencies to be inefficient,
erratic, or biased. The problem is getting more complicated: in ODR, inefficiency, errors or
bias can be hidden under nicely crafted computer interface, in the way a program was
constructed. Liability for any “errors” in ODR software will be often a multi-faceted issue.
Rule wrote that “having your own technological platform is like owning an elephant; yes,
you own it, but you still have to feed it every day and find a place for it to sleep at night. And
every day the elephant gets a little older.” For that reason, many ODR providers prefer
outsourcing ODR technology than building it themselves. Such ODR technology is often
protected by patents and copyrights. Providing a clear set of rules concerning liability for
errors and mistakes in ODR processes is difficult, albeit desirable.

Other technology-related regulatory issues in ODR are data security and confidentiality.
While the former relies primarily on technology and the latter – on law and norms, in fact
they seem closely interrelated. The security of currently utilized ODR platforms and
techniques (and as a result confidentiality of ODR processes as well) raises some concerns.
For example, unencrypted email which is now widely used is extremely vulnerable to
interception. Confidentiality is a key concern in any dispute resolution process. In the field of
ODR, parties need to have full confidentiality guarantees not only from a neutral but also an
ODR provider, and all other persons who can have electronic access to information the
parties do not wish to disclose. Data protection methods, including encryption, secure
servers, or password protocols, must be important components of ODR programs. Again,
some analogies to privacy laws come to mind. It seems plausible that ODR providers should
be required to commit themselves to similar standards and efforts as those who run personal
information databases under privacy laws. There is consensus among scholars and
practitioners that “because of the often sensitive nature of the information shared in online
dispute resolution procedures, system administrators must put the highest priority on top-
level security and data protection.”

Finally, last but not least, lack of trust, in the context of the Internet sometimes referred to as
e-confidence, is another consequence of “insufficient regulation” in the ODR field. Lack of
trust is viewed as one of the main obstacles to the continuing growth of the Internet’s global

Page | 146
marketplace in general, and the ODR phenomenon in particular. These two aspects are
closely interrelated: if e-commerce is to reach its full potential, consumers must have
confidence in ODR. Even if there are no insuperable legal obstacles to online arbitration or
mediation within the current legal framework, lack of legal certainty and public confidence
in online dispute resolution hampers the growth of ODR. While in the traditional
environment, trust is earned mostly through a neutral’s behaviour during the dispute
resolution process, online, the process of building trust can be redesigned and enriched. It has
been argued that it could be “more informational than behavioural.” Building trust is a
function of all the modalities of regulation: law, norms, market and technology are all
important.

ODR: Aviation Sector: Dispute resolution practices are peaceful and cost-cutting
alternatives to arbitration and litigation. Online Dispute Resolution practices are quite
common and highly desirable in many services. This paper proposes a format of
implementation of ODR services into airline customer service practices by following existing
models of dispute resolution and stressing incentives of such process, such as provision of
efficient service, fostering of customer loyalty, and potential of building trust in airline
customer relations.
ODR and Customer Service ODR is certainly an effective and appropriate tool to resolve
disputes about a variety of issues, including government, family, workplace, and business
areas. With that, customer service is definitely at the forefront of this practice. A number of
businesses have accepted ODR as a way to provide quality customer service and ensure
client satisfaction. According to Rule (2002), “businesses that understand this need and
proactively address it by integrating online dispute resolution services into their websites will
benefit from increased customer loyalty, higher transaction volumes, and significantly greater
profits” (p. 90). Therefore, it is only appropriate that more businesses that rely on customer
satisfaction to flourish implement ODR services into their everyday service. As of December
30, 2009, Aviation Consumer Protection Division of The US Department of Transportation
(2010) requires all airlines to adopt and enforce customer service plans that include the
following: ODR and Airlines 5 (1) offering the lowest fare available; (2) notifying consumers
of known delays, cancellations, and diversions; (3) delivering baggage on time; (4) allowing
reservations to be held or cancelled without penalty for a defined amount of time; (5)
providing prompt ticket refunds; (6) properly accommodating disabled and special-needs
passengers, including during tarmac delays; (7) meeting customers‟ essential needs during
lengthy on-board delays; (8) handling “bumped” passengers in the case of over sales with
fairness and consistency; (9) disclosing travel itinerary, cancellation policies, frequent flyer
rules, and aircraft configuration; (10) ensuring good customer service from code-share
partners; (11) ensuring responsiveness to customer complaints; and (12) identifying the
services they provide to mitigate passenger inconveniences resulting from flight cancellations
and misconnections (p.16). Appropriately enough, ODR practices can be offered to address
disputes that arise as a result of majority of these areas.
Airline industry is no stranger to dispute resolution. According to McGee (2009) an
arbitration program provides a quick and fair alternative to judicial litigation which since its
establishment has successfully utilized ADR principles in a number of industry-wide areas,
including the involvement of the US National Mediation Board to help facilitate labour

Page | 147
negotiations with airline unions (Katsh, Osterweil, Sondheimer, & Rainey, 2005) and
resolving disputes between travel agents and airlines (McGee, 2002). Thus, it may be time to
begin ODR practices in the customer service area of the business, as the newest requirements
for providing and monitoring good customer service seem to set up a perfect time for
implementation of such practice. As it stands right now, customers who have issues with
airlines have a limited amount of options to express their concerns. Such may include posting
complaints to online sites, such as www.airlinecomplaints.com, or filing them directly with
the airlines. The option of posting concerns online is not very useful, as it may be quite
challenging for customers to find their way to an online site that hosts such complaints, and
the purpose of simply “venting” may not be enough to satisfy a disgruntled traveller.
Another option is to either call to speak with customer service agents (which rarely yields
any significant results, as these agents do not have the power or the authority to grant
satisfactory options), or send an e-mail to the Customer Relations of the airline. The latter
option provides for a lot of hassle. Zoglin (2009) shares his experience of completing such an
e-mail by explaining that his only option to express his concerns was to fill out a form and
send it via e-mail. In his words, he “spent half an hour filling out the online form, sent off an
e-mail and got this response: We are sorry but this service is unavailable at this time. Please
try again later.” As it stands, filing complaints online via e-mail results in lengthy waits, and
rarely yields manageable solutions.
Furthermore, it has been also my experience that the “best option” in the airline’s eyes as a
response to an e-mailed complaint is to offer the customer some airline frequent flier miles to
be added to the complainant’s account to resolve the concern. While it may sound like a good
option, customers who do not have frequent flier accounts, those who do not travel as
frequently as business customers, or those who experience issues with international or
occasional flights may not benefit from this option.
ODR-based system to be added to the service provided by airlines in an attempt to address
these concerns. Many businesses and organizations already utilize services of live chats to
allow parties the opportunity to talk live with customer service representatives – the service
is not a novelty. It is, then, possible to provide customers of the airlines with an opportunity
to take active role in dispute resolution by offering solutions that will be most beneficial or
acceptable to them, and, if necessary, connect them with mediators who may help address the
issues that travellers may have experienced. Such service will increase the favourability of
airlines in the eyes of customers, and provide airlines with an outside mediator service that
will help take the burden of dispute resolution off at times powerless customer service
agents.
When selecting appropriate tools it is necessary to assess the context in which disputes occur,
and make selections that will be most efficient in addressing disputes that occur.
Additionally, such practice should maintain “openness, transparency, and accountability [in
order to provide] the basis for collaborative processes… [and] develop mutual respect and
high quality dialogue that lead to outcomes” (Collaborative values and principles, 2002, p.2).
According to Rule (2002) each dispute is individual in nature, so it is ideal to provide a
system that is based on resolution-focused mind-set and is tailored specifically to the disputes
common in its area. It is also necessary to consider financial limitations of customers in such
a system. It is apparent that in a litigation dispute a large business has access to a higher level

Page | 148
of attorneys, thus leaving that customer at a disadvantage. Keeping in mind that it is the
customer and frequent flying travellers who keep airlines in business in the first place
provides a perspective of interdependency. Thus, ODR can provide an economical alternative
to litigation for all sides, creating fair justice access and developing faith in the industry’s
customer-focused orientation.
Finally, it is important to take into consideration one of the most important factors for ODR
practices. While technology may certainly be advanced enough to attempt utilizing it in the
ODR process as a component, it is highly discouraged to incorporate it in this particular
process. According to Rule (2002), people should be in control of ODR, and resolution of
any dispute should certainly come from a human-powered service (p. 229). It is imperative
that the process of dispute resolution in this area is people-oriented and people-powered.
Since people are the ones using airline service, and people are the ones who, ultimately,
cause the dispute arousal, it is imperative that humans are also the ones who are involved in
mediating and resolving these disputes.
Following the example of eBay dispute resolution service, this process will offer parties the
opportunities to state their case and mediate their disputes using an impartial outside
intermediary. Such service will also be effective and useful to customers who experienced
issues while traveling to another country, thus, eliminating the limitations of bordered
disputes. A customer who lives in Korea and travelled to Egypt via American airline service
will now have the opportunity to address his/her disputes with the airline he may not use
frequently. The next section of this paper will review a proposed process of resolving such
disputes.
Proposal of Applying ODR to an Airline Dispute: Following the standards of practice for
ODR (Online dispute resolution standards of practice, 2009) it is imperative that such a
system is accessible to all users regardless of geographical or language barriers. Considering
that airlines service people from all over the world, attention to this is especially necessary.
As importantly, internet use should not become a determining factor in the speed of dispute
resolution; therefore, airlines should offer an alternative way to submit a dispute to those
users who are technologically or accessibly limited. However, involvement of technology in
the ODR process will certainly help expedite and implement decision-making process, and
such service should be provided at no cost to the consumer. Process of ODR in airline
disputes will follow a sequential order: parties will first describe the issue, parties will then
discuss the dispute and clarify any specific areas of concern, and, finally, they will resolve
the dispute (Rainey & Jadallah, 2006). A customer will contact an Airline Dispute Resolution
Service and open a case. He/she will first be offered to choose among the types of concerns
associated with the dispute.
According to Air Travel Consumer Report (2010), common complaints fall in the following
areas: flight delays, mishandled baggage, over sales, consumer complaints, TSA issues
(security screenings), missed flights, and disability accommodations. The customer will be
offered an opportunity to select one of the areas within which the dispute falls. The next step
will be the explanation of the dispute/issue that arose during travel. A customer should be
given the opportunity to write out his/her complaint indicating in detail what happened that
resulted in the issue. The final step will be giving the customer the option of selecting a
number of choices available that may satisfy him/her in the dispute resolution process.

Page | 149
For example, a customer may select from a variety of choices (he/she should not be limited
to just one option), such as (1) a cash refund of the ticket, (2) a voucher for future travel (full
cost of the ticket), a voucher for future travel (partial cost of the ticket), (3) frequent flyer
miles deposited to his frequent flyer account, (4) a voucher for reimbursed luggage costs, (5)
or Other. The “Other” option may offer the customer an opportunity to offer his/her own
solution by filling in the resolution desired, as well as afford the airline the opportunity to
consider the customer’s request. After following these steps and submitting an explanation of
the dispute the customer will be provided with an estimated response time to give the airline
time to address the issue. It is recommended that the airline has 3-5 business days to respond.
Longer periods of wait may result in customer’s further dissatisfaction with the service.
Once the case has been opened, the Airline Dispute Resolution service will be contacted and
given the opportunity to respond. Such step will provide the airline with a chance to address
the situation at hand by resolving the dispute without inclusion of the third party. If the
airline assumes the responsibility for the customer’s dissatisfaction, it will have a number of
consumer’s pre-selected choices to consider in resolving the dispute. Since the customer has
identified a list of options that will satisfy him/her in the resolution of this issue, the airline
has the opportunity to meet that expectation by selecting an option most
convenient/favourable to its business. In this case both parties will have reached the solution
acceptable to both sides and the dispute will be resolved without any further steps.
If the airline dispute resolution service does not feel that the options selected by the customer
can be met, it can reflect on the issue by providing its own offer in resolution of the dispute.
In such case the customer has a choice of considering the offer, or declining it, which, in
turn, will escalate the dispute to the mediation stage. At the same token, if the airline feels
that a customer's request is entirely unrealistic (for example, if a customer selected only one
option for dispute resolution (for example, full cash refund of the airline ticket), and the
airline is not willing to meet that expectation as it may think that the issue does not meet the
requirements for such action (for example, if the customer was unhappy with the way he/she
was treated by the flight attendant), it may also choose to escalate the issue to the mediation
stage. Ideally, both sides have the opportunity to consider the options and collaborate in
mutual resolution of the dispute, prior to involving a mediator.
Furthermore, if one or both sides continue to disagree, the mediator's presence will be
requested. Involvement of an outside mediator will serve a variety of purposes, including
offering impartiality, privacy, security and cost-savings. Since mediator will act as an
independent party decision rendered should be timely and binding, safeguarding both sides
from further escalation of the issue. A mediator will review the case (including
communication between both sides up to the point of mediator's involvement), and propose a
solution that is most efficient and most appropriate for both parties involved. If the airline is
at fault, options selected by the customer will provide a mediator with an opportunity to
choose most convenient selection as identified by the customer and advise the airline to meet
that option in an effort to avoid further escalation of the dispute. This will allow for a fast
resolution of the issue in which case both parties will receive benefits of a satisfactory
dispute resolution. If the customer is found to be at fault (or found to be requesting an
unrealistic reward), the mediator on the case will be able to reflect on the issue based on the
arguments from both sides and offer a possible resolution scenarios to the customer. It is

Page | 150
predicted that an unbiased party will be more favored in dispute resolution than direct
customer service agents of the airlines, thus, it is possible that the customer will be more
likely to accept the resolution offers presented by the mediator.
The ultimate goal for implementation of ODR practices in resolving customer disputes is not
just to keep the consumers happy, but to provide an efficient service that will attract future
clients and allow the airlines the opportunity to meet the needs of constantly-changing
demands of society. Providing travelers with a private and secure dispute resolution service
that assures impartiality and fast resolution will engender feelings of fairness in consumers.
Such satisfaction will ultimately lead to increased trust in business relationships between the
clients and the airline. It takes a long time to build trust, yet a single incident has a potential
of breaking it and forever damaging a built relationship. Negative experiences can quantify
and easily spread to those who have not been affected. A word of mouth can prevent
potential customers from selecting an airline for future travels, just as it can attract them with
similar strength. Wired world makes it even more possible. If such service takes off, the
potential for building trust in the service becomes unlimited, and customers who know that
their disputes will be resolved with their best interest in mind will be more likely to choose
the service of an airline that is willing to do so.
Conclusion: Online dispute resolution has its sceptics and its enthusiasts. The sceptics say
given that ODR has not revolutionized dispute resolution yet, it is nothing more than a
passing fad. The enthusiasts see an opportunity to develop new resources to resolve conflicts
more effectively than today and argue that the Internet and ODR are still in a process of
institution building – even if it takes longer than originally assumed – time will come to
develop a global ODR system.
This paper contends that the lack of a spectacular success of online dispute resolution
projects stems from significant flaws of their current regulatory framework. There is no
comprehensive legal regime governing dispute resolution on the Internet, and as a result
online dispute resolution suffers from the lack of legal certainty and public confidence. The
absence of ODR law is exacerbated by the weaknesses of the other modalities of regulation:
market, norms and technology. Arguably, a solid legal framework is needed to allow for the
proper growth of online dispute resolution with its norms, market and technology.
Over the past decade, Internet law in Canada and many other countries has evolved
significantly with the introduction of new privacy, e-commerce, and copyright legislation.
One constant, however, has been governmental support for a hands-off, self-regulatory policy
approach for online dispute resolution. Given the unsatisfactory effects of this approach, it is
time to re-examine it. While it remains to be seen which trend in ODR regulation will
prevail, it must be kept in mind that the development of the Internet has changed the
dynamics of the regulatory environment. The reasonable policy-making must rely on careful
consideration of all the modalities of regulation. The best, and in fact the only presently
effective solution, is co-regulation, a combination of both private and national and
international mechanisms, working in a coordinated effort to provide the optimal regulatory
framework of online dispute resolution.
ODR involves various methods of dispute resolution including e-Negotiation, e-Conciliation,
e- Mediation, e-Arbitration and hybrid mechanisms such as Medola, Mini trial, Med Arb,

Page | 151
Fast track arbitration, Neutral Listener Agreement, Rent a Judge, Concilio-Arbitration etc. It
may adopt either adjudicatory or non adjudicatory process to have its decision binding or
non-binding upon parties. The need of the hour is to maximize the reach of access to justice
delivery system to all the sections of the society. A strong infrastructure for easy access and
for ensuring that justice must be delivered in minimal time and in adequate manner by
increasing literacy rate, reducing language and cultural barriers, and easy access to e-courts
might be the stepping stone towards achievement of the same. Thus, the step to advance
ODR is a key to facilitate global harmony and to encourage international relationship in
cross-border disputes.

Page | 152
 MODULE – V

INTERFACE BETWEEN
LAW AND TECHNOLOGY

Page | 153
Page | 154
 MODULE V – INTERFACE BETWEEN LAW AND TECHNOLOGY
Humankind is in the midst of a colossal technological revolution. Technology is rapidly
evolving, and it in turn is shaping and getting increasingly embedded in our own lives,
histories and futures. Recent advances in the areas such as information technology and
telecommunications technology are changing lives by offering new means of exchanging
information, transacting business and influencing the economic and social clusters of
societies around the globe.
These revolutions are considerably different from the previous technological revolutions in
terms of rate of development, degree of interconnectivity achieved between individuals and
societies, and scale of impact on the society. Information technology and its uses have grown
exponentially over a relatively short period of time. It has brought business, governance and
societal components into a single interconnected ecosystem. Further, it has completely
overhauled business practices, governance structures and cultural interactions. One of the
most remarkable elements of the knowledge based revolution is its limitless future
possibilities.
It has ushered in an age of rapid innovation. While it has raised the standard of living by
allowing the governments to deliver public services more efficiently and effectively, at the
same time it has also tested the limits of governmental control by creating new forms of
inefficiencies. This struggle is particularly visible when it comes to rule making. Inherent
natures of legal systems and present technologically driven society and business are
diametrically opposite. Laws and regulations are tailored to be stable and long-serving
whereas current technologically driven global environment is in a constant flux. This
dichotomy is manifested in number of areas and it adds to the uncertainty wrought by
technological revolution.
Disruptive nature of the current technological revolution has made already uncertain future
even more difficult to predict. For instance, information technology enabled e-commerce is
projected to be the future of global trade, but the form of this commerce and its repercussions
on job structure, poverty, standard of living, industry etc., are unclear. Another challenge is
that technology can raise inequality across the world. One of the biggest tasks to be tackled
in the 21st century will be to ensure that whatever be the impact of e-commerce, it is meted
out in a fair and equitable manner. It should bridge the global North-South gap, instead of
widening it.
The Relationship between Law and Technology: The relations between law and
technology are both simple and exceedingly complex. At the most elementary level,
technology consists in the application of labor to create a product, to generate a service or
otherwise to produce a desired result. Technology develops as ways are found to produce
new results or to produce old results using fewer or less costly inputs. Law is generally
understood to exist as a set of rules adopted by a society’s governing institutions that are
applicable to all of its inhabitants.22 All modern societies have established institutions

22
See H.L.A. HART, THE CONCEPT OF LAW 89-96 (1961). Hart divides rules into “primary rules of
obligation” and secondary rules. Primary rules are those that govern behavior and facilitate contracting and

Page | 155
charged with making determinations about the applicability and interpretations of these rules.
They have also established institutions that enforce the rules. Law and technology interact
when legal rules foster or retard the development of technology. They also interact when
society decides that technology produces undesirable results and employs legal rules to
contain or modify those results.

New and Emerging Technologies and its Legal Issues

Introduction: Significant technological advances are being made across a range of fields,
including information communications technology (ICT); artificial intelligence (AI),
particularly in terms of machine learning and robotics; nanotechnology; space technology;
biotechnology; and quantum computing to name but a few. These breakthroughs are
expected to be highly disruptive and bring about major transformative shifts in how societies
function. The technological advances in question are driven by a digital revolution that
commenced more than four decades ago. These innovations are centered on the gathering,
processing, and analyzing of enormous reams of data emerging from the information
sciences with implications for countless areas of research and development. These advances
promise significant social and economic benefits, increased efficiency, and enhanced
productivity across a host of sectors.
But there are mounting concerns that these technologies and how they are used will pose
serious challenges, including labor force dislocations and other market disruptions,
exacerbated inequalities, and new risks to public safety and national security. The
technologies are mostly dual use, in that they can be used as much to serve malicious or
lethal purposes as they can be harnessed to enhance social and economic development,
rendering efforts to manage them much more complex.1 Relatively easy to access and use,
most of them are inherently vulnerable to exploitation and disruption from both near and far.
In parallel, geopolitical tensions around the world are growing, and most countries
increasingly view these technologies as central to national security. The potential for misuse
is significant. And greater economic integration and connectivity mean that the effects and
consequences of technological advances are far less localized than before and are liable to
spread to countries and industries worldwide.
Technological innovation is largely taking place beyond the purview of governments. In
many cases, the rate of innovation is outpacing states’ ability to keep abreast of the latest
developments and their potential societal impacts. And even if one or a handful of national
governments devise policies for managing these effects, the global reach of many emerging
technologies and their impacts requires new approaches to multilateral governance that are
much more difficult to agree on. A greater number and variety of actors must be involved to
initiate, shape, and implement both technical and normative solutions. Yet, like governments,
many of these other actors do not have (or simply do not invest in) the means to consider the
broader, cross-border societal implications of their investments, research, and innovations.
When they do so, identifying the most relevant or effective policy-oriented or normative-
focused platforms to discuss these implications can be challenging, not least because existing

other fulfilling activities. Secondary rules are concerned with interpreting, applying, and enforcing primary
rules.

Page | 156
platforms sometimes do not consider the variety of actors implicated, the cross-border reach
of the technologies in question, and the different value and political systems at play. This is
particularly the case when technologies are designed for profit-making alone and their
trajectories are entirely dependent on market forces.
In short, since the invention of the agriculture in the Fertile Crescent, the humanity has
witnessed continuous technological developments. Such developments affect the human
society in positive and negative ways. For example, an airplane allows the quick
transportation of passengers, whereas an atomic bomb provides its users with an opportunity
to destroy entire nations. The governments put efforts to regulate technology in such a way as
to enhance its positive effects and ameliorate its negative consequences. For example, there
are governmental regulations related to the use of cookies (i.e., small files which are stored
on a user’s computer), drones, wearable devices (e.g., smart watches and Google Glass), and
social networking platforms. The regulation of new and emerging technologies is not an
exception.

Evolution of Technology:
Ancient Technology - Invention of ramp to aid construction processes; Bronze technology
used in Mesopotamia; City planning and sanitation technologies in Indus Valley Civilization;
Seafaring technology; Early Seismic detectors by Chinese Civilization; Water Lifting
Technologies; Wheel Technology and so on. Medieval Technology - Renaissance and
Reformation Movement. Invention of Printing Press; Sea Roots and Sea Trade; Vertical
Windmill; Textile manufacturing; Paper making Technology; Steam Engine; Railway
Transportation. Modern Technology - Broadband Internet Access; Quantum Computers;
Nanotechnology; Biotechnology; Whole genome sequencing; Scramjets and Drones
Industrial Revolutions and Technology: The First Industrial Revolution started in Britain
around 1760s, was about coal, water and steam, bringing with it the steam engine and
innovations that enabled the large scale manufacturing of goods and products, such as
textiles. Its impact on civilization was immense. The advent of the steam engine in the 18th
century led to the first industrial revolution, allowing production to be mechanized for the
first time, and driving social change as people became increasingly urbanized. The Second
Industrial Revolution came about with the invention of electricity and enabled mass
production. Dating from the late 1860s to early 1900s, it allowed much of the progress of the
first industrial revolution to move beyond cities and achieve scale across countries and
continents. The inventions of the semiconductor, personal computer and the internet marked
the Third Industrial Revolution starting in the 1950s and 60s. This is also referred to as the
"Digital Revolution.“ The Third Industrial Revolution was all about computers. Transistors,
which eventually allow for the ultimate in scale: globalization. A third industrial revolution
saw the emergence of computers and digital technology. This led to the increasing
automation of manufacturing and the disruption of industries including banking, energy, and
communications.
Fourth Industrial Revolution-4IR or Industry 4.0: Prof. Klaus Schwab, Founder and
Executive Chairman of the WEF and author of a book The Fourth Industrial Revolution is
instrumental of 4IR. 2016 article, Schwab wrote that “the 4IR has the potential to raise global
income levels and improve the quality of life for populations around the world.” He future

Page | 157
said “technological innovation will also lead to a supply-side miracle, with long-term gains in
efficiency and productivity. Transportation and communication costs will drop, logistics and
global supply chains will become more effective, and the cost of trade will diminish, all of
which will open new markets and drive economic growth.” Schwab also suggested the
revolution could lead to greater inequality, “particularly in its potential to disrupt labor
markets.” Furthermore, the job market may become increasingly segregated into “low-
skill/low-pay” and “high-skill/high-pay” roles, which could escalate social tension.
According to Schwab, “the changes are so profound that, from the perspective of human
history, there has never been a time of greater promise or potential peril.”
The Fourth Industrial Revolution will profoundly affect people’s lives as AI and increased
automation see many types of jobs disappear. At the same time, entirely new categories of
jobs are emerging. Strategic business and technology advisor Bernard Marr said that
computers and automation will come “together in an entirely new way, with robotics
connected remotely to computer systems equipped with machine-learning algorithms that can
learn and control the robotics with very little input from human operators.”
He added, “Industry 4.0 introduces what has been called the ‘smart factory,’ in which cyber-
physical systems monitor the physical processes of the factory and make decentralised
decisions.” As the Fourth Industrial Revolution reshapes the future of work, businesses must
prepare their people for the new world that lies ahead. This often means an increased focus
on continual learning, building more on-ramps to new types of jobs, and a commitment to
diversity.
The Fourth Industrial Revolution represents a fundamental change in the way we live, work
and relate to one another. It is a new chapter in human development, enabled by
extraordinary technology advances commensurate with those of the first, second and third
industrial revolutions. These advances are merging the physical, digital and biological worlds
in ways that create both huge promise and potential peril. The speed, breadth and depth of
this revolution is forcing us to rethink how countries develop, how organisations create value
and even what it means to be human. The Fourth Industrial Revolution is about more than
just technology-driven change; it is an opportunity to help everyone, including leaders,
policy-makers and people from all income groups and nations, to harness converging
technologies in order to create an inclusive, human-centred future. The real opportunity is to
look beyond technology, and find ways to give the greatest number of people the ability to
positively impact their families, organisations and communities.
According to Professor Klaus Schwab the new age is differentiated by the speed of
technological breakthroughs, the pervasiveness of scope and the tremendous impact of new
systems. The Fourth Industrial Revolution covers wide-ranging fields such as Artificial
intelligence, The Internet of Things (IoT), robotics, autonomous vehicles, 3D printing,
nanotechnology, biotechnology, materials science, energy savings, computing, etc. A hyper
connectivity-based intelligent technology revolution triggered by the development of
artificial intelligence (AI), big data, and other digital technologies that is expected to give rise
to innovative transformations in not only industries but also the national system, society, and
people’s everyday lives.

Page | 158
It’s important to appreciate that the Fourth Industrial Revolution involves a systemic change
across many sectors and aspects of human life: the crosscutting impacts of emerging
technologies are even more important than the exciting capabilities they represent. Our
ability to edit the building blocks of life has recently been massively expanded by low-cost
gene sequencing and techniques such as CRISPR; artificial intelligence is augmenting
processes and skill in every industry; neurotechnology is making unprecedented strides in
how we can use and influence the brain as the last frontier of human biology; automation is
disrupting century-old transport and manufacturing paradigms; and technologies such as
blockchain and smart materials are redefining and blurring the boundary between the digital
and physical worlds.

Pros and cons of the Fourth Industrial Revolution:

Pros of Fourth Industrial Revolution: Fourth Industrial Revolution has the potential to raise
global income levels and improve the quality of life for populations around the world.
Technology has made possible new products and services that increase the efficiency and
pleasure of our personal lives. Ordering a cab, booking a flight, buying a product, making a
payment, listening to music, watching a film, or playing a game—any of these can now be
done remotely. In the future, technological innovation will also lead to a supply-side miracle,
with long-term gains in efficiency and productivity. Transportation and communication costs
will drop, logistics and global supply chains will become more effective, and the cost of trade
will diminish, all of which will open new markets and drive economic growth. Moreover,
humanity is facing chronic social problems, such as low birthrates, population ageing, and
environmental and transportation issues, which can be solved through intelligent service
innovation, thereby improving people’s quality of life and leading to the creation of new
growth engines Through the intelligent technology-based enhancement of productivity, it is
possible to overcome the limitations of capital and labor input, create new sources of growth,
and increase the competitiveness of the service sector, including the healthcare and finance
industries.
Higher productivity: In the next 5-10 years, it’s estimated that productivity will increase by
5-8%. This is mainly because of increased automation. Improved quality of life: Technology
has made possible new products and services that increase the efficiency and pleasure of our
personal lives. One Channel CEO, Bernard Ford, exemplifies this by mentioning how
“ordering a cab, booking a flight, buying a product, making a payment, listening to music,
watching a film, playing a game” and even controlling the lights and temperature in our
homes can be done remotely
New markets: a fusion of technologies that is blurring the lines between physical, digital, and
biological spheres” will create new markets and growth opportunities. Lower barrier to
entrepreneurship: new technologies such as 3D printing for prototyping, the barriers between
inventors and markets are reduced. Entrepreneurs can now establish their companies and test
various products with lower start-up costs without the traditional time and cost constraints
often encountered with traditional prototyping methods.
The cons of the Fourth Industrial Revolution: Inequality: It is all about who gets the
benefits of these technologies and of the results they help produce. For developing countries

Page | 159
there are technological and infrastructure challenges and skill challenges that are not easy to
overcome.
Cyber security risk: When everything is connected, the risk of hacking data and tampering
with it or using it for malicious intent is now more prevalent. It challenges the very nature of
identity and privacy, especially with the increased use of data analytics and machine
learning. Core industries disruptions: For example Taxis are competing against Uber,
Traditional television and cinema compete with Netlfix and YouTube, the hotel industry with
Air BnB and any store is competing against Amazon.
Ethical issues: With improved AI, genetic engineering, and increased automation, there are
new ethical concerns and questions of morality. With access to more data about an individual
and a group of individuals, the risk of using it for personal gain and manipulation is even
greater at the same time, as the economists Erik Brynjolfsson and Andrew McAfee have
pointed out, the revolution could yield greater inequality, particularly in its potential to
disrupt labor markets. As automation substitutes for labor across the entire economy, the net
displacement of workers by machines might exacerbate the gap between returns to capital
and returns to labor. In addition to being a key economic concern, inequality represents the
greatest societal concern associated with the Fourth Industrial Revolution.
Understanding New and Emerging Technologies: We all have been witnesses to the recent
technological advancements which have made our lives easier and these have now become
indispensible part of our daily lives. The technology is always evolving and changing. With
this evolving it also brings new challenges as well. The term emerging technology
encompasses the advanced and the newest technologies which includes various technologies
such as Artificial Intelligence (AI), Additive Manufacturing (AM), Blockchain Technology,
Big Data, Internet of Things (IoT), Virtual Reality (VR) Cognitive Technology, Cyber
technology, Crypto Currency, Genetic Engineering Techniques, Social Networking,
Geospatial data, Nanotechnology, various health techs, Hypersonic Weapons, Human-
Computer Interaction, various Energy techs, Immersive Media etc. However, each of these
technologies and many more to come have bring along with it numerous legal challenges as a
consequence of which, law is said to struggle to keep pace with the latest technological
developments.
As mobile devices have become more and more common, lawyers have been taking
increasing advantage of the ability to work remotely. The days when lawyers were tied to
offices are over. In the recent times when we are facing crucial challenges like fighting with
Covid-19, work from home has become a mandate and it has been made possible due to the
technological developments. Social media has become a legitimate tool for marketing and
even doing business. Lawyers have increasingly come to embrace the power of social media
and its potential for growing business.
New and Emerging Technologies: The term “New and Emerging Technologies” (NET)
encompasses the most novel, advanced, and prominent innovations that are developed within
various fields of current modern technology. The current examples of NET include, for
example, zero-emission cars that run on hydrogen, next-generation robotics, genetic
engineering techniques, developments in artificial intelligence; nanotechnology, social
networking, etc.

Page | 160
The scope of the term “New and Emerging Technologies” (NET) has been in a process of
continuous expansion. Two decades ago, most NET were related to artificial intelligence
machines. The popularity of augmented reality, nanotechnology, Internet of Things, and 3D
printing started growing at the beginning of the current century.
Irrespectively of their type, NET have serious social implications. They shape our homes,
businesses, and governments. A large number of Facebook’s 1,44 billion monthly actively
users use social networking at home. One can visit a restaurant in London in which the
menus are projected directly onto the tables and orders are submitted digitally to the kitchen.
Government authorities have set up facial recognition systems allowing them to identify and
monitor people attending public events.
Although NET certainly bring benefits to the humanity, they also pose challenges. For
example, the physical objects comprising the Internet of Things can allow hackers to receive
far more information about their victims than hackers currently can. The solutions to the
challenges posed by NET are three, namely, (1) research, (2) development, and (3)
regulation. In this article, we will focus on the latter solution only.
Legal Issues of New and Emerging Technologies: Major legal issues concerning the above
technologies includes Privacy law (, i.e., the law that regulates the collection, use, processing,
and disclose of personal information. Under most privacy laws, personal information is
defined as information which identifies an individual or allows an individual to be
identified), Security laws, determination of Jurisdiction, Liability, IP Protection laws
(Copyright law, i.e., the law that governs the ownership and use of creative works; Patent
law, i.e., the law that regulates the rights to inventions), Taxation law, use of e-evidence (i.e.,
the law that governs the proof of facts in legal proceedings) etc. For example, use of
Artificial intelligence and the allied technologies raise many complex legal issues and
challenges such as determining liability- whether civil or criminal liability would apply to a
certain situation, personal injury claims etc. AI’s ability to create works that would otherwise
be recognised as IP created by a human raises questions as to who owns such IP, and
moreover, who is liable when such works infringe another party’s IPR?
Similarly, Block chain has the ability to cross jurisdictional boundaries as the nodes on a
block chain can be located anywhere in the world can pose a number of complex
jurisdictional issues. It has also implications for data privacy, particularly where the relevant
data is personal data or metadata sufficient to reveal someone’s personal details. Similarly,
the laws dictating drone operations are complex, to account for all the ways drones are
currently used and how they could be used in the future.
The New Emerging Technologies (NET) also poses challenges such as Security
vulnerabilities threatening the privacy of NET users, Unlawful collection of personal data
through social networking platforms, Using NET for unlawful surveillance etc.
The applicability of laws regarding the emerging technologies also raises questions such as
which laws will be applicable in different scenarios due to the transborder nature of the
crimes. What is further challenging is the transnational impact of these technologies.
Technologies like these have raised major concerns on the issue of Privacy on the data it
collects. Cross border impact of such technologies has often crippled the execution of laws

Page | 161
which have a territorial implementation. Managing such technologies from a legal standpoint
now requires the attention and cooperation from international community including the
international institutions.
Despite having a few laws regulating the issues emerging out of the use of new technologies,
we do not have a clear legal framework to address all the issues. Those issues which can be
regulated by Acts have lacunas which hamper the implementation of such acts.
Traditional and Modern New Technologies and Legal Issues: Major legal issues
concerning “New and Emerging Technologies” (NET) are broadly two types: Traditional:
Technology and its Impact on State Sovereignty, State Jurisdiction, State Responsibility,
Privacy, Security. Modern: Technology Impact on legal issues regulating the use and mis-
use of data, evidence, Protection of creative works, and inventions including IP, Mobile,
Biometric mobile, Facial recognition technology, biotechnology, genetic testing,
nanotechnology, synthetic biology, computer privacy, autonomous robotics etc.,
These technologies are generating fair amount of litigation, and presented concerns regarding
the possibility of intrusive governmental surveillance and needs new approaches to ensure
appropriate and timely regulatory responses. Advances in technology pose new challenges
for international governance. In an increasingly inter-connected world, new technology raises
legal issues relating to its use, distribution and control.
Legal Question: The existing legal regime is unable to deal effectively with new and
innovative technologies are also raising lot of legal Questions like:

 Do machines have morality?

 What legal liability regime should we adopt for damages arising from these
Technologies?
 Which ethical guideline should we adopt to orient its advancement?
 Is anticipative regulation justified for certain classes of risks in applications of these
technologies?
 Should legal systems resort to the precautionary principle to avoid dealing with the
risks of a rapidly changing technological trajectory?
 Are technology-based initiatives necessary, or is a product-specific approach more
appropriate?
 Can a line be drawn between legal and ethical guidance in this context?

Internet and State Sovereignty: State Sovereignty, Sovereign Equality and International
Law: Traditionally, the concept of state sovereignty is evolved on the basis of boundary.
Since the end of World War, the notion of state sovereignty has been interpreted on two
levels: internal and external. Internal sovereignty means that a state has supreme jurisdiction
over the people, resources, and all other authorities within the territory its control. On the
other hand, external sovereignty means that the territorial integrity of a state is inviolate.
Both levels of state sovereignty are centered the idea of frontiers.
The 1648 Peace of Westphalia, emphasized states' legitimacy over territory, the territorial
state has marked the cornerstone of the modern international Relations and International
Legal systems. The concept of sovereignty lies at the heart of the existence of all States.

Page | 162
It is a reflection of their “exclusive, supreme and inalienable legal authority to exercise
power within their area of governance’’. A sovereign State possesses legal, executive and
judicial powers and has authority over its subjects within its territory, to the exclusion of all
other States. In the past few years, evidence of the erosion of state sovereignty has increased.
These challenge to the state's control powers to a great extent associated with the rapid
development of communication technology. Two of these challenging forces to be
investigated at the sections below are the free market and private corporation as well as the
free flow of information and the media industry.
The debate is increasingly polarized among those who believe that the Internet undermines
state sovereignty and those who believe that it strengthens liberal democracy. Concerning the
Internet are
a) the confusion between privately owned digital networks and public digital space,
b) the multiple meanings of commercialization of the Net, and
c) the possibilities for regulating the Net.
The US government’s “Framework for Global Electronic Commerce,” a blueprint for
Internet governance, argues that because of the Internet’s global reach and evolving
technology, regulation should be kept to a minimum. It also suggests that in the few areas
where rules are needed, such as privacy and taxation, policy should be made by
quasigovernmental bodies such as the World Intellectual Property Organization (WIPO) or
the OECD. A common theme in the cyberspace literature is that the Internet constitutes a
threat to the traditional cornerstone of international politics: the sovereign state.
What role the Internet plays in, and what impact it has on, national and global governance?
Recent development raises a host of technological, political, economic, anthropological,
legal, and philosophical issues that emanate from the impact of the Internet and cyberspace
on the sovereign state and conceptions of national and global governance.
The nature of each state is important, as is the philosophical basis for each state's conception
of sovereignty. But philosophical assumptions, explicit and buried, also deserve critical
attention to avoid complacency about the future role of the Internet in international relations.
The ongoing shaping of cyberspace into public and private digital spaces forces us to see the
Internet as an arena in which power and legitimacy clash.
The Internet's potential for becoming the medium of a global marketplace and a forum for a
collection of traditional and novel political activities is rapidly becoming reality. The growth
in the use of the Internet has been one of the most interesting technological and political
developments of the late twentieth century. Walter Wriston, writing about the revolution of
the Information Age, stated that "sovereignty, the power of a nation to stop others from
interfering in its internal affairs, is rapidly eroding."
Many forces today, such as trade, global capital flows, and environmental degradation, are
thought to undermine sovereignty. The developing conventional wisdom seems to be that the
Internet is joining the assault on sovereignty and will, perhaps more than any of the other
globalization forces, contribute to relegating sovereignty and its traditional trappings to the

Page | 163
ash heap of history. It argued that developing conventional wisdom by arguing that the
Internet has the potential to strengthen national and global governance-thus enhancing
sovereignty rather than destroying it. From the perspective of national governance, the
Internet can be harnessed to promote the Rule of Law, which is critical for good governance
of societies all over the world. Globally, the Internet can contribute to international
cooperation by: (1) strengthening international law; (2) strengthening economic
interdependence; (3) empowering non-governmental organizations and improving their
abilities to contribute productively to the development of international regimes designed to
deal with global problems; and (4) supporting international security mechanisms.

Technology and State Jurisdiction:

The current Internet technology creates ambiguity for sovereign territory because network
boundaries intersect and transcend national borders. At one level, this technologically-created
ambiguity challenges sovereign jurisdiction. Yet, the evolution of the Internet’s technological
infrastructure is intertwined with sovereign jurisdiction because the relationship between
technology and law is dynamic. As sovereign states grapple with the challenges of existing
technologies, they still must protect their citizens in the online environment.
The debates over Internet jurisdiction, however, mask deep and fundamental objections to
state authority. Jurisdiction fits within a broader struggle over the respect for the rule of law
in the Information Society. In effect, jurisdiction over activities on the Internet has become
one of the main battlegrounds for the struggle to establish the rule of law in the Information
Society.
Parts of the Internet community have long sought to divorce the applicability of sovereign
law from their online activities. While the days of Internet separatism have waned, many
technology players continue to advocate in favor of legal immunity for online activities.
Yahoo! exemplifies this view. As a proponent of technological immunity, Yahoo! believes
that democratically chosen laws should not apply to its online activities. In the now famous
French case, the U.S. company transmitted images of Nazi objects that were constitutionally
protected in the United States, but illegal to display in France where the users were located
and where Yahoo! targeted advertising. Yahoo! unsuccessfully argued that France did not
have personal jurisdiction over the U.S. company because it was operating on the Internet
from the United States and that French law did not apply to the images because they were
stored on a server in the United States. Yahoo! also argued that the technology offered it no
means to comply with French law. When the French courts rejected the technology-based
defenses and ruled against Yahoo!, the company went forum shopping and sought to deny
enforcement of the French order by suing for a declaratory judgment in federal court in
California. In essence, the U.S. Internet company wanted to avoid the application and
enforcement of a law it did not like in a country where it did business over the Internet.
Although Yahoo! found a willing accomplice at the U.S. district court in the company’s
effort to obtain immunity from financial liability, the U.S. court of appeals overturned the
lower court decision and held that the California court had no personal jurisdiction over the
French parties and that France had every right to hold Yahoo! accountable in France.
With the advent of the internet and the transmission of information and transacting of
business across borders, a host of issues have cropped up on the legal front. The traditional

Page | 164
approach to jurisdiction invites a court to ask whether it has the territorial, pecuniary, or
subject matter jurisdiction to entertain the case brought before it. With the internet, the
question of ‘territorial’ jurisdiction gets complicated largely on account of the fact that the
internet is borderless. Therefore, while there are no borders between one region and the
other within a country there are no borders even between countries. The computer as a
physical object within which information is stored has given way to ‘cyberspace’ where
information is held and transmitted to and from the ‘web.’ So where is this ‘place’ where the
information is ‘held’?
State jurisdiction implies the competence to prescribe rules of law, the jurisdiction to enforce
the prescribed rules of law and the jurisdiction to adjudicate. Accordingly, it is of three types:
legislative jurisdiction, executive jurisdiction and judicial jurisdiction. Although legislation is
primarily enforceable within a State territory, it may extend beyond its territory in certain
circumstances.
Civil Jurisdiction: the state has a right to exercise civil jurisdiction in respect of all who are
found on its territory. Criminal jurisdiction: an analysis of the national codes of criminal
law and criminal procedure and the writings of international publicists disclose five general
principles on the basics of which the criminal jurisdiction is claimed by states at present -
Territorial principle, Nationality principle, Protective principle, Universality principle,
Passive personality principle.
Internet and Jurisdiction: “Cyberspace radically undermines the relationship between
legally significant (online) phenomena and physical location.
The rise of the global computer network is destroying the link between geographical location
and: (1) the power of local governments to assert control over online behavior; (2) the
effects of online behavior on individuals or things; (3) the legitimacy of a local sovereign's
efforts to regulate global phenomena; (4) the ability of physical location to give notice of
which sets of rules apply.
The NET thus radically subverts the system of rule‑making based on borders between
physical spaces, at least with respect to the claim that Cyberspace should naturally be
governed by territorially defined rules.” In other words the international legal system’s
traditional rules for jurisdiction depend on localization of conduct or harm. The Internet
challenges all three kinds of jurisdiction: prescriptive jurisdiction, adjudicative jurisdiction
and enforcement jurisdiction, because it is difficult to localize legally relevant conduct
occurring in the Internet. The NET creates ambiguity for sovereign territory because
activities transcend national borders and boundaries. For example, jurisdiction over
activities on the Internet has become a battleground for the struggle to establish the rule of
law in the Information Society.
'Denial of service' -- initial wave of cases seeking to deny jurisdiction, choice of law and
enforcement to states where users and victims are located constitutes a type of 'denial of
service' attack against the legal system. In effect, the defenders of hate, lies, drugs, sex,
gambling and stolen music use technologically based arguments to deny the applicability of
rules of law interdicting their behavior. Are innovations in information technology going to
undermine the technological assault on state jurisdiction?

Page | 165
Some of the earliest attempts to reject state authority relate to personal jurisdiction. In the
United States, courts have had great trouble figuring out how to apply traditional jurisdiction
principles to Internet activities. To satisfy the Due Process Clauses of the U.S. Constitution, a
defendant must have sufficient minimum contacts with the forum “such that the maintenance
of the suit does not offend ‘traditional notions of fair play and substantial justice.’” The
Supreme Court, in Asahi Metal Industry Co. v. Superior Court,23 was more exacting, and
limited personal jurisdiction to cases in which the defendant “purposely avail[s]” himself of
the forum. In essence, as the Supreme Court also held in World-Wide Volkswagen v.
Woodson,24 personal jurisdiction is subject to a test of reasonableness. Similar standards exist
in foreign states where a court’s competence to hear the case depends on the defendant’s
nexus with the forum state. For example, the Brussels and Lugano Conventions on
jurisdiction for intra-European disputes look to various forms of contact between defendants
and the state asserting jurisdiction.
Personal jurisdiction: In the Internet context, defendants have generally claimed that a
remote forum is precluded from jurisdiction because the contacts are only established
through a server that is not within the forum. Defendants assert that their activities are not
directed at the forum state. This type of argument challenges the very ability of sovereign
states to protect their citizens within their borders from online threats. Among the early U.S.
cases, the Western District of Pennsylvania in Zippo Manufacturing v. Zippo Dot Com,
Inc.25 distinguished between active and passive web sites and held that remote, passive web
sites did not accord personal jurisdiction to the forum. More recently, courts have looked to
online targeting and to deleterious effects within the forum to determine if personal
jurisdiction is appropriate. The effects approach is also gaining currency outside the United
States. In Dow Jones & Co. v. Gutnick,26 the High Court of Australia subjected Dow Jones
to suit in Australia for defamation in that country under Australian law arising from a web
posting on a U.S.-based server. Likewise, the High Court of Justice in the United Kingdom
found that Governor Arnold Schwarzenegger’s campaign manager could be sued for
defamation in the British courts as the result of statements about a U.K. resident that
appeared on a newspaper website in the United States.
One of the advantages of the Internet over other methods of communication and commerce is
that it enables access to a much wider, even a worldwide, audience. Spatial distance and
national borders are irrelevant to the creation of an Internet business and sales horizons
across borders. In a sense, a person can be everywhere in the world, all at once. This ease of
communication raises a vital legal question, when a person puts up a website on his home
server and allows access to it from all points on the globe, does he subject himself to the
governance of every law- and rule-maker in the world? Under the current system, in order
to decide what state's or nation's laws govern disputes that arise over Internet issues, a court
first must decide "where" Internet conduct takes place, and what it means for Internet activity
to have an "effect" within a state or nation.

23
480 U.S. 102, 112 (1987)
24
444 U.S. 286, 297 (1980) (holding that a defendant needs to have “conduct and connection with the forum
State . . . such that he should reasonably anticipate being haled into court there”).
25
952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
26
6 (2002) 210 C.L.R. 575 [Austl.], available at http://www.4law.co.il/582.htm

Page | 166
Even apart from the Internet, this border-centric view of the law creates certain difficulties in
an economy moving toward globalization. Entire bodies of law have been developed by
every nation to deal with the resolution of international conflicts of law, conflicts that arise
when geography and citizenship would allow a dispute to be decided by the laws of more
than one country, and the laws of those countries are not consistent with each other.
Conflicts of law are particularly likely to arise in cyberspace, where the location of an
occurrence is never certain, where ideological differences are likely to create conflicting
laws, and where rules are made not only by nations and their representatives, but also by sub-
national and transnational institutions.
Choice of Law: The next type of attack against sovereign authority seeks to deny the
applicability of the substantive law if it is not the law of the place where the Internet activity
was launched, such as the place where the server is located. This blanket denial of
prescriptive jurisdiction undermines the basic objective of conflict of laws jurisprudence,
which is to avoid forum shopping and promote an efficient resolution of disputes when cases
have international dimensions. Network technology pushes the localization of activities for
choice-of-law purposes toward the transmission end-points. However, the attack against the
law where users are located encourages forum shopping, to locate the infrastructure for the
conduct of Internet activities within legal safe havens.
Sovereign authority, nevertheless, asserts itself against Internet activists. In Twentieth
Century Fox Film Corp. v. I Crave TV,27 a film studio fought successfully to apply U.S.
copyright law to streaming video on the Internet and obtained an injunction against a
Canadian service that could legally stream video in Canada from servers in Canada. In
France, the Yahoo! court determined that the French penal code applied to Yahoo!’s
activities because the illegal content could be visualized in France. The United Kingdom
recently followed the same approach in a libel case, finding the place of downloading
dispositive for the choice of law. For privacy, the Children’s Online Privacy Protection Act
in the United States contains a choice of law provision in its definitions that applies the
protections of the American statute to any website, regardless of its place of origin, that
collects personal information from children. The European Directive on data privacy contains
a similarly expansive choice of law rule that purports to apply European substantive law to
any organization that uses means within the European Union to collect personal data.
Enforcement of judgments: The recognition of foreign judgments in these attack cases will
often be problematic. As the Yahoo! case illustrated, public order rules at the place where
Internet activity is launched may conflict with those of the place where the activity has its
effects. Even the international conventions on recognition of foreign judgments provide an
exception to enforcement when there is a conflict with the public order of the enforcing state.
Courts are also especially ill-equipped to evaluate the nuances of foreign public order
decisions. The Yahoo! case illustrates this difficulty particularly well. At the district court
level, Yahoo! introduced a misleading translation of the French decision.28 The key passage

27
Nos. Civ.A. 00-121, Civ.A. 00-120, 2000 WL 255989, at *3 (W.D. Pa. Feb. 8, 2000)
28
The translation of the French opinion was prepared for the U.S. court by one of the French attorneys
representing Yahoo!’s French subsidiary in the French proceeding. Yahoo!, Inc. v. La Ligue Contre Le Racisme
Et L’Antisemitisme, 169 F. Supp. 2d 1181, 1185 (N.D. Cal. 2001) (“translation attested accurate by Isabelle

Page | 167
of the order in the French version was translated word-for-word with the exception of a
qualifying phrase. This qualifying phrase was simply omitted in the English translation. The
original court decision ordered Yahoo!: “de prendre toutes les mesures de nature à dissuader
et à rendre impossible toute consultation sur Yahoo.com du service de ventes aux enchères
d’objets nazis.” This was translated as “to take all necessary measures to dissuade and render
impossible any access via Yahoo.com to the Nazi artifact auction service . . . .” Instead of
properly translating measures de nature as either “available measures” or “the type of
measures,” the translation for the U.S. court ignored “de nature” and added the word
“necessary,” a term that does not appear at all in the original language. The effect of this
distorted translation is to convert the filtering obligation from one of good faith efforts that is
found in the original to one of successful results in the translation. At the same time, the
translation distorted the term “Nazi objects” by translating it as “Nazi artifacts.” This
distortion creates an implication not found in the original text that the items had historical
value. Such distortions in translation can serve to increase the sense of conflict over public
order values. Indeed, the display of Nazi artifacts with historical connotations is expressly
permitted by the French law

Implementation of NET/NEST in India:

In January 2020, the Ministry of External Affairs (MEA) took the progressive step to
establish India’s first, New and Emerging Strategic Technologies (NEST) division. The
development comes close on the heels of the government allowing all network equipment
makers, including Huawei, to participate in 5G trials. NEST will act as the nodal division
within the ministry for issues pertaining to new and emerging technologies. It will help in
collaboration with foreign partners in the field of 5G and artificial intelligence. Its mandate
shall include, but not be limited to, evolving India's external technology policy in
coordination with domestic stakeholders and in line with India's developmental priorities and
national security goals. It will also help assess foreign policy and international legal
implications of new and emerging technologies and technology-based resources, and
recommend appropriate foreign policy choice. Many of the new and emerging technologies
have significant implications for diplomacy, national security and global rule-making. NEST
will negotiate technology governance rules, standards and architecture, suited to India's
conditions, in multilateral and plurilateral frameworks.
Emerging technologies are generally used to refer to advanced and futuristic technology at a
given point in time. While thirty years ago it would have referred to the Internet, today it
means artificial intelligence, biotechnology, nanotechnology, 3D printing and quantum
computing. These technologies are crucial for giving impetus to innovation, economic
progress and social development, and can place early adopters at the head of the pack by
leapfrogging traditional barriers to development and ushering in unprecedented technological
advancement. Security concerns may be attached to the technology itself, such as health risks
connected with biotechnology, or cyber security risks associated with the Internet of Things
(IoT), and need to be addressed through a different policy approach. On the other hand, dual
use and disruptive technologies — which refers to tech that can enhance military and
offensive capability — can also significantly undermine India’s strategic interests.

Camus, February 16, 2001”), rev’d 379 F.3d 1120 (9th Cir. 2004), reh’g en banc granted 399 F.3d 1010 (9th
Cir. 2005)

Page | 168
Going forward, the NEST division has its work cut out for it. Apart from looking at the form
and substance of what the division can do, the initiative can also provide a platform to
engage with specialists and trained professionals to frame emerging technology-related
policies. This is where the division can be truly experimental; that is, by adopting a cross-
sectional approach that not only considers economic, security and technical aspects, but also
makes efforts to engage with both public and private stakeholders to frame meaningful
policies. When it comes to navigating an uncertain world fraught with geopolitical rivalries
and rapidly evolving technologies, the many challenges to India also give it an opportunity to
demonstrate its inventiveness towards approaching new foreign policy questions.

General Legal issues that arise in Application of such Technologies:

With the advent of new technologies our lives have become very easy. The technology is
always evolving and changing. With this evolving it also brings new challenges as well. The
term emerging technology encompasses the advanced and the newest technologies which
includes various technologies such as Artificial Intelligence (AI), Additive Manufacturing
(AM), Blockchain Technology, Big Data, Internet of Things (IoT), Virtual Reality (VR)
Cognitive Technology, Genetic Engineering Techniques, social networking etc. These
technologies although are considered boons for the societal development also pose certain
risks when misused. Some of the issues are discussed below:
1. Determination of Jurisdiction: The most important issue that calls for attention is the
issue of jurisdiction. Now this issue poses a difficult challenge while determining
jurisdiction of cyber space. In case of online transaction determining jurisdiction
becomes difficult because of the fact that in case of online jurisdiction multiple parties
reside in different places and whether the jurisdiction lies on the place where the cause
of action arises or on the place where parties reside becomes an issue. Also there are
other challenges as well where the hackers hack into the system from somewhere else
and do some unlawful activity and also in cases of deep fakes where the images can be
morphed and circulated. The main concern is that these crimes are trans-border crimes in
nature so determination of jurisdiction poses real threat.
2. Admissibility of evidence: Another issue that needs attention while addressing the
emergence of new technology is the admissibility of evidence. In general cases the
online evidence is not admissible in courts. The gathering of evidence without the
authorization also seems difficult. Another issue which is very concerning in present
time is the authenticity of such evidence given the fact that the hackers can hack into any
system and alter or modify information at any given time.
3. Privacy: Privacy becomes another issue when we speak about the new emerging
technology. Some of the technologies may have pre-installed malware which might
make the security vulnerable and by the use of social network platforms it becomes
easier for the hackers to get access to the personal data and there are also a few
technologies like RFID or the Beacons technology which allows the hackers to transfer
data which automatically identifies the tags attached to objects using radio frequency
signals.
4. Copyright infringement: The holder of Intellectual property rights such as copyright
and patent also face numerous challenges as well. Sometimes the copyrighted material
gets published online without the permission of the author and if it contravenes the

Page | 169
 doctrine of ‘fair use’ then it becomes unlawful. The person who uses whole or
substantial part of copyrighted material without permission will be liable for copyright
infringement. Data piracy can also be an example of this. There are also controversies
related to patenting software as well.
a) Unlawful use of user-generated content created by NET;
b) Unlawful publication of copyright content on social networks; and
c) Unlawful collection of copyrighted content from social networks.
5. Cyber warfare: Not only these issues, there also are a lot of controversy regarding the
emerging technologies which are military in nature such as the introduction of cyber
warfare and also emergence of new technologies as well to potentially enhance the
performance of a soldier. Also the introduction of nanotechnology such as mini robots
and micro sensor nets despite providing facilities like carry devices and water from any
environment, doesn’t provide the immunity against heavy explosive weapons or nuclear
weapons.
6. Healthcare facilities: Even in health care sectors we have seen the news of robot
assisted surgeries in the recent past and also to reduce the work load of the employees in
the hospital and to make it more efficient and save time the records of patients have also
made to be digitalized in the hospitals. There have been numerous cases where errors
were detected in test results and in a few cases the records were also found to have been
tampered with. The issue of who should bear the liability in these cases remained
unanswered.
7. Applicability of Laws: The applicability of laws regarding the emerging technologies is
that the crimes being trans-border in nature, the question arises as to which laws will be
applicable in different scenarios. We have different laws for regulating these different
situations that might arise. Such as we have copyright Act and Patent Act to regulate the
copyright infringements and patent law infringement. for addressing the jurisdictional
issues on cyber law, we have the Information Technology Act, 2008.
Regarding Health Law, India is a party to the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights. The
Supreme Court held that Article 21 of the Constitution of India in relation to human rights
has to be interpreted in conformity with international law. Further, Article 25 [2] of the
Universal Declaration of Human Rights and Article 7 (b) of the International Covenant on
Economic, Social and Cultural Rights have been cited by the Supreme Court while upholding
the right to health by a worker. These covenants find statutory acceptance in the Statement of
Objects and Reasons of The Protection of Human Rights Act, 1993. In addition, human
rights commissions are empowered to study treaties and other international instruments on
human rights and make recommendations for their effective implementation. In the recent
past, many complaints of alleged medical negligence and deficient service by private and
government hospitals and medical professionals have been filed with the national or state
Human Rights Commissions.
Regarding Privacy, although we don’t have any direct laws regulating privacy but privacy
has been guaranteed as a fundamental right under article 21 of the Indian constitution and
also for data protection the Information Technology Act can be used as well.

Page | 170
Despite having a few laws regulating the issues emerging out of the use of new technologies,
we do not have a clear legal framework to address all the issues. Those issues which can be
regulated by Acts have lacunas which hamper the implementation of such acts.
Ethical Issues: Lastly, we need to address the ethical issues concerning the emerging
technologies that arise in certain circumstances. Now when we get choices to go for
corrective therapy to change appearances, intelligence or even sexual orientation, the
question remains how far the technology should be used while not crossing the ethical and
moral boundaries.

A Few Specific Emerging Technologies and Legal Issues:

This part is further divided into 4 sub- parts. This part will discuss the issues related to data
and its various aspects and usages. The first part talks about Data flow, followed by Data
analysis and Data Usages with a discussion on Data- Gray parts in the last part.

Data Flow: Concept and Applications:

Data- Meaning and Types: Data has earned monikers like the new oil, new currency and
lifeblood of the digital economy. There is no exhaustive definition of data. In a general sense,
it is described in terms of numbers, characters, symbols, images, sounds, and electromagnetic
waves, bits – that constitute the building blocks from which information and knowledge are
created. In the context of digital world, data can be understood as all the information
generated and collected during an online activity. It includes information directly provided
by the user; information indirectly and automatically produced regarding sites visited, time
spent online, products bought and sold etc.; and information produced upon analysis of direct
and indirect information. Data can be classified into various categories on the basis of source,
nature and method of collection:
i. Data can be distinguished into captured data and exhaust data on the basis of the source.
Captured data is the deliberate product of measurement i.e. information intentionally and
directly captured such as name, address, credit card details etc. On the other hand,
exhaust data is a by-product of the main function rather than the primary product i.e.
online imprint left by the user in the form of websites visited, videos watched, posts
liked etc.
ii. Based on the method of collection data is categorised into active and passive data.
Active user data collection, involves explicitly asking users for information, preferences,
and opinions. While users are often reluctant to enter information due to time and
privacy issues, if the Websites can offer some service or product in return for the
information, users may be compelled to provide some level of information to the site. It
is also called volunteered data. In contrast, passive data is the trail of data produced
automatically during an online activity. It is a by-product of everyday technological
existence. Passive data collection requires no explicit action on the user’s part and in
fact, user often has little awareness of the data collection effort. It uses the interactions
between Web clients and servers to collect and store information about the user actions
or reactions to information provided on a Web site. As a result, this information – and its
intrinsic monetary value – often goes unnoticed by Internet users. It is also known as
automated data. In short, automated data is generated as an inherent, automatic function

Page | 171
 of the device or system, whereas volunteered data is traded or gifted by people to a
system.
iii. Based on the nature of the data, it is categorized into personal and non-personal data.
European directive defines personal data as “any information relating to an identified or
identifiable natural person ("data subject")”. It further defines identifiable person as one
who can be identified, directly or indirectly, in particular by reference to an
identification number or to one or more factors specific to his physical, physiological,
mental, economic, cultural or social identity. Non-personal data is data which does not
lead to identification of a particular person. Personal data is considered sensitive data
due to deep ramification of its misuse.
iv. Another category of data is Big Data. As per Rob Kitchin, any data is classified as Big
Data if it possesses these characteristics- huge volume, consisting of terabytes or
petabytes of data; high velocity, being created in or near real time; extensive variety,
both structured and unstructured; exhaustive in scope, striving to capture entire
populations of systems; finegrained resolution, aiming at maximum detail, while being
indexical in identification; relational, with common fields that enable the conjoining of
different data-sets; flexible, with traits of extensionality (easily adding new fields) and
scalability (the potential to expand rapidly). The key features of Big Data are three Vs –
volume, velocity and variety. That is, data must be huge in volume, collected at rapid
velocity in real time and contains information from wide variety of sources. Radical
expansion and integration of computation, networking, digital devices and data storage
has provided a robust platform for the explosion in big data, as well as being the means
by which big data are generated, processed, shared and analysed.
It is important to note that Big Data and personal data do not always overlap. If Big Data
sources personal information such as credit card details, user name, location, and health
record it is called personal Big Data. On the other hand, Big Data may purely comprise of
non-personal data like traffic data, astronomical data, weather and climate data, and crop
pattern data and is not attributed to single entity or person.
Big data related activities can lead to privacy breach i.e. identification of an individual in
three scenarios:
a. If it contains personal data.
b. If personal data contained in Big Data is not sufficiently anonymised. Here
‘anonymised’ means making it impossible to identify an individual from the data
itself or from that data in combination with other data, taking account of all the means
that are reasonably likely to be used to identify them. If anonymisation is not
sophisticated enough, re-identification tools can be used to reverse it.
c. Personal data may be obtained by combining separate anonymous Big Data sets
In recent years, use of Big Data has increased considerably in private and public sector.
Major beneficiaries of Big Data are public sector services, healthcare sector, insurance
services, transportation services and banking sector.98 It is used to analyze claims and
transactions in real time, identifying large-scale patterns across many transactions or
detecting anomalous behaviour from an individual user, to detect fraud. It also uses data
collected from social media to provide real-time insights into how the market is responding
to products and campaigns. With those insights, companies adjust their pricing, promotion,

Page | 172
and campaign placement on the fly for optimal results. Companies such as DataSift provide
marketing insights by collecting data from Twitter (via Twitter’s GNIP service), Facebook
and other social media. Big Data is also used for keeping patient history, disaster response
and preparedness, traffic management, preparing population estimates etc.
Data Analysis and role of AI: Data in itself is not valuable unless it is processed and
converted into actionable results. The value derived from Big Data is partially a function of
amount of data created, but more due to ability to use that data in real time to make smarter,
more efficient decisions. This ability comes from data analytics. Data analytics is a sub-area
of Big Data which comprises of process of converting raw data into valuable resource. It can
be described as taking Big Data and creating predictive model to obtain actionable insights.
Companies and governments then base their decision on such insights. Rob Kitchin lists four
types of data analysis, namely data mining and pattern recognition; data visualisation and
visual analytics; statistical analysis; and prediction, simulation and optimisation.
A discussion on data analytics is incomplete without examining artificial intelligence (AI).
AI is also a method of data analytics. However, it stands apart from other methods due to its
ability to learn from the data in order to respond intelligently to new data and adapt its
outputs accordingly. This unique ability enables AI to cope with the analysis of big data in its
varying shapes, sizes and forms.
Its objective is to make informed choices and conduct tasks after analyzing the repercussions
of choices like a human being. Like all software, AI works with the data provided through an
interface of a data source and a pre-determined algorithm. These algorithms are created with
the help of machine learning. Machine learning is defined as “…the set of techniques and
tools that allow computers to ‘think’ by creating mathematical algorithms based on
accumulated data.” Thus, machine learning is a tool to create AI. Further, the amount of data
created plays a great role in the efficiency of AI. As the amount of data that informs AI
grows exponentially, AI will grow exponentially more accurate and be able to parse the
smallest detail. Thus, the complexity of the input source and the sophistication of the
algorithm are the deciding factors in the development of an AI system.
There are two types of AI- narrow and general. Narrow or weak AI is designed to perform
narrow tasks such as facial recognition or internet searches. However, the long-term goal of
the field of AI is to create general AI (AGI or strong AI). While narrow AI may outperform
humans at specific tasks like chess or mathematical equations, AGI, if materialized, is
expected to outperform humans at nearly every cognitive task.
The design of an AI system has been outlined to imitate the workings of a human brain. This
involves a complicated mix of various disciplines such as Computer Science, Biology,
Psychology, Linguistics, Mathematics, and Engineering. In order to make a machine
replicate the reasoning, learning and problem solving abilities of a human brain, scientists
have been trying to replicate in machine code the way a human brain produces new neural
networks as a person learns a new skill, performs multiple tasks simultaneously and
prioritizes them.
In Canada, the Treasury Board Secretariat of Canada (the "Board") is looking at issues
around the responsible use of AI in government programs and services.12 On March 2, 2019,

Page | 173
the Board released a Directive on Automated Decision-Making, which takes effect on April
1, 2019, to ensure that AI driven decision-making is compatible with core administrative law
principles such as transparency, accountability, legality, and procedural fairness.13
To grasp an understanding of the legal aspects of AI, one of the central questions will be how
the law will evolve in response to AI. Will it be through the imposition of new laws and
regulation or will it be through the time-honoured tradition of having our courts develop new
laws by applying existing laws to new scenarios precipitated by technological change?
AI has already been used and accepted in a number of US decisions. In Washington v
Emanuel Fair, the defence in a criminal proceeding sought to exclude the results of a
genotyping software program that analysed complex DNA mixtures based on AI while at the
same time asking that its source code be disclosed. 14 The Court accepted the use of the
software and concluded that a number of other states had validated the use of the program
without having access to its source code. In State v Loomis, the Wisconsin Supreme Court
held that a trial judge's use of an algorithmic risk assessment software in sentencing did not
violate the accused's due process rights, even though the methodology used to produce the
assessment was neither disclosed to the accused nor to the court.
In Canada, litigation involving AI is in its early stages. In 2018, the Globe and Mail reported
that a lawsuit involving an AI system had been commenced in Quebec. Adam Basanta
created a computer system that operates on its own and produces a series of randomly
generated abstract pictures. Mr. Basanta was now being sued in Quebec Superior Court for
trademark infringement because of an image created by the system. Amel Chamandy, owner
of Montreal's Galerie NuEdge, claimed that a single image from Mr. Basanta's project All
We'd Ever Need Is One Another violated the copyright on her photographic work Your World
Without Paper (2009) and the trademark she owns associated with her name.
AI is also being utilized to render judicial decisions. In Argentina, AI is being used to assist
district attorneys in writing decisions in less complex cases such as taxi licence disputes that
presiding judges can either approve, reject or rewrite. Using the district attorneys' digital
library of 2,000 rulings from 2016 to 2017, the AI program matches cases to the most
relevant decisions in the database, which enables it to guess how the court will rule. Thus far,
judges have approved all of the suggested rulings—33 in total.
Now we will discuss some of the issues that arise during the application of AI. Below, are a
few examples.

I. Data Privacy
The enactment of the European Union (EU) General Data Protection Regulation (GDPR)
raised some concerns for organizations collecting Big Data, a term that has come to be
synonymous with large data sets that fuel machine learning. Just like the GDPR in the EU,
the recent Personal Data Protection Bill 2018 (Data Privacy Bill) in India, intends to make
organizations accountable for the personal data processed and stored by them. For instance,
the Data Privacy Bill has expanded the applicability of processing-related requirements by
importing a wider definition to ‘personal data’. Moreover, the Data Privacy Bill gives the

Page | 174
data principal (i.e. the person whose data is collected) the right, inter alia, to have his
information erased. Such requirements are bound to pose challenges for Big Data.

II. Torts
Machine learning constantly evolves, making more complex decisions based on the data it
operates on. While most outcomes are anticipated, there is the distinct possibility of an
unanticipated or adverse outcome given the absence of human supervision. The automated
and artificial nature of AI raises new considerations around the determination of liability.
Tort law has traditionally been the mechanism used in the law to address changes in society,
including technological advances. In the past, the courts have applied the established
analytical framework of tort law and have applied those legal principles to the facts as they
are presented before the court.
We start the tort analysis with the following questions: Who is responsible? Who should bear
liability? In the case of AI, is it the programmer or developer? Is it the user? Or is it the
technology itself? What changes might we see to the standard of care or the principles of
negligent design? As the AI evolves and makes its own decision, should it be considered an
agent of the developer and if so, is the developer vicariously liable for the decisions made by
the AI that result in negligence?
The most common tort—being the tort of negligence—focuses on whether a party has a duty
of care to another, whether the party has breached the standard of care, and whether damages
have been caused by that breach. Reasonable foreseeability is a central concept in
negligence. Specifically, the test is whether a reasonable person is able to predict or expect
the general consequences that would result because of his or her conduct, without the benefit
of hindsight. The further that AI systems move away from classical algorithms and coding,
then they can display behaviours that are not just unforeseen by their creators but are wholly
unforeseeable. When there is a lack of foreseeability, are we placed in a position where no
one is liable for a result, which may have a damaging effect on others? One would anticipate
that our courts would respond to prevent such a result.
In a scenario where there is a lack foreseeability, the law might replace its analysis based on
negligence to one based on strict liability. The doctrine of strict liability also known as the
rule in Rylands v Fletcher provides that a defendant will still be held legally responsible
when neither an intentional nor a negligent act has been found and it is only proven that the
defendant's act resulted in injury to the plaintiff.
Should a negligence analysis remain, then the standard of care requirements will need to be
redefined in an AI context. Some of the following questions will be central to the court's
consideration:
1. Is the decision-making transparent so that the court can determine how the "black
box" reached the outcome it did?
2. What steps were taken to monitor outcomes arising from machine learning?
3. Was the integrity and quality of the data appropriate for the purpose for which it was
intended?

Page | 175
 4. Was the data used representative or does it promote bias and/or discrimination?
5. Was the algorithm appropriately designed to guard against unintended outcomes?
One can envisage a growth industry in negligence actions against software development
companies and programmers.
Product liability is another arm of tort law that may take on more significance when looking
at liability should AI become defective. Under the common law, product liability focuses on
negligent design, negligent manufacture and breach of the duty to warn. It generally
addresses the liability of one or more parties involved in the manufacture, sale or distribution
of a product. For this doctrine to apply, the AI system in question must qualify as a product,
and not a service. Ascertaining where the defect occurred in the supply chain of an AI
product may be difficult given the autonomous and evolving nature of machine learning and
algorithms. Commentators have noted that product liability will become relevant with respect
to issues arising from the use of autonomous vehicles, robots and other mobile AI-enabled
systems.
Apportionment of Liability: A major legal quandary that arises upon implementation of AI is
the question of apportionment of liability. Legal scholars, public policy organizations, and
regulators around the world have attempted to provide definitive answers to this question,
which till date remains at the heart of all discussions surrounding AI. We attempt to list down
some of these fundamental questions below.
Who should be held liable? In the event of loss or damage, who would be held liable –
would it be the technology developer, the retailer, or the end-consumer? Further, would the
parties be liable on a joint and several basis or otherwise? For instance, in the context of a
mishap concerning autonomous vehicles, would the liability rest on the AI developer, the car
manufacturer, or the driver?
What principle should be applied to determine and accord liability? Assuming that the
responsible party has been identified, would such party be subject to the ‘principle of strict
liability’ (i.e. the party is held liable for the loss or damage, unless an exception such as an
Act of God or Act of a Third Party applies), or the ‘principle of absolute liability’ (i.e. the
party is held liable so long as there is loss or damage, without the availability of
an exception). Moreover, what would be the nature of this liability – civil or criminal or
both?
Risk mitigation for industry participants: Although AI technology is still in its nascent
stages in India, there are plenty of opportunities for private industries to participate and profit
from its development. However, considering the regulatory vacuum, contracts between the
AI user and the AI developer are vital in determining the liability of parties. In the absence of
any legislation, it is imperative that participants outline their respective roles, responsibilities
and obligations in the contract. While negotiating a contract, the parties should clearly
identify the scope of services being offered, the warranties relating to the AI technology,
scope of liability (including limitations and exclusions) at the very least.

Page | 176
Data uses:
Internet of Things Internet of Things (IoT): IoT is about connecting devices over the
internet, letting them talk to users, and each other. It entails conversion of ‘dumb’ devices
into ‘smart’ ones with the help of computer software. IoT is a term used to define the
network of connected “smart” devices, i.e., devices embedded with sensors, software,
electronics and network connectivity which have the capacity to collect and exchange data.
The ‘smart’ device has a programmed awareness and an ability to make autonomous and
automatic decisions from a suite of defined choices through the deployment of algorithms on
produced data. It does so with the help information technology.
Recently trend of smart devices using AI has risen and in future all devices may incorporate
AI element. IoT is the convergence of Operational Technology (OT) and Information
Technology (IT). OT refers to the hardware and software that controls the performance of
physical devices. Traditional OT is restricted to the pre-programmed functions embedded in
the device. Such as, air conditioner (AC) functions according to the cooling settings already
fed in the device. In contrast, OT when coupled with IT acquires ability to interact with other
devices. A ‘smart’ AC is connected to the user’s mobile device and can switch on or off
according to location of the paired mobile device. The ‘smart’ device which has been fitted
with a sensor constantly records and monitors its surroundings. The device’s processors do
not usually have the capacity to analyze and process the data. The accumulated data is,
therefore, sent to the manufacturer’s central database where the necessary analyses are
performed.
AI or other kinds of technologies are used for data analysis and developing insights. IoT
devices are the source of observed data, while derived and inferred data are produced by the
process of analysing the data. 128A decision prompt is then sent back to the smart device. As
the new data collected by the smart device is constantly available to be taken into account,
the prompt is accordingly altered. The future of IoT looks very promising and it has wide
range of applications for both the consumers and businesses. But there remain several
technical, legal and ethical challenges. As early as in 2008 a European Commission’s Staff
Working Document identified policy challenges for IoT, namely, security, privacy, data
protection, control of critical global resources, subsidiarity, identity management, naming,
interoperability, fostering innovation, spectrum and standardization. These matters still hold
challenge for all the stakeholders- governments, businesses and consumers. Some key legal
issues that are involved are briefly discussed here.
First major issue is data security. As the smart devices are always connected to the Internet
for information and system updates, there is a possibility of the devices being ‘hacked’.
Hacking is defined as the unauthorized interception of computer-based information. Hacker
can steal data or deny access to the smart device or spam the user. Such threats can go
beyond being a simple menace to economic safety and can endanger national and
international security.
Second, continuous connection to the internet increases the risk of a spontaneous machine
malfunction, which, in case of machines such as household heating, can cause physical
danger to the user.

Page | 177
Third, without sufficient data protection measures consumer privacy is vulnerable to
violation. The devices have access to sensitive information such as present location,
preferences and personal information of the user through the connected mobile devices.
Moreover, in the case of some manufacturers, the data processing for the equipment is not
conducted directly by the manufacturer or a subsidiary. It is instead outsourced to a third
party who may not adhere to the privacy policy sworn by the manufacturer. This leads to the
risks of third party infiltration, data theft and unauthorized resale. In this aspect, European
Commission has explored the right to “silence of the chips” i.e. individuals should be able to
disconnect from their networked environment at any time, to limit the threat to privacy.
Fourth, IoT suffers from standardization issues. At present IoT developers are using varied
standards. In the IoT sphere, the eXtensible Messaging and Presence Protocol (XMPP), the
Constrained Application Protocol (CoAP) and Message Queue Telemetry Transport (MQTT)
are major protocols to communicate between the objects. A new organisation called
oneM2M is developing specifications to ensure the global functionality of M2M-allowing a
range of industries to effectively take advantage of the benefits of this emerging technology.
This exercise is critical because lack of standards for sound data protection directly
contributes to data security and privacy susceptibility. It further aggravates the technological
interoperability problem. Fifth, spectrum policy of various countries and ITU will have to
accommodate IoT. Globally, the trend is to use telecom network of Telecom Service
Providers (TSPs) and/ or free wireless bands in non-TSP frequency domains for M2M
communications. But with the enhanced use of IoT, the need for additional spectrum will
multiply too. Countries have to review their infrastructure-sharing policy and net-neutrality
principles with regard to spectrum and Internet infrastructure. The availability of White
Space (unused frequency of the wireless spectrum) will have an influence of how M2M/IoT
evolves, while there are licensing issues related to the use of alternative technologies such as
Low Power Wide Area (LPWA) networks.
3-D Printing: Three dimensional (3D) printing is the process of creating three dimensional
objects in which the material is layered in thin coats to form the desired object. This
procedure is technically termed Additive Manufacturing because material is added to the
object as opposed to conventional production processes which employ subtractive processes
such as milling, cutting, drilling and machine to manufacture the final design.
The procedure by which the material is layered classifies the technology. Fused Deposition
Modelling, where the material is passed through a melted nozzle that heats it and is then
extruded according to a pre-specified software code. Digital Light Processing (DLP), where a
platform is submerged into built resin and the light source controlled by the machine maps
every layer of the object into the platform and solidifies it. The software CAD (Computer
Aided Design) is used with varying degrees of complexity according to the material used in
the prototype and the complexity of its design. The most common being a STL
(STereoLithography) file format which allows the user to incorporate a “repair” code into the
program to allow for revision in case of failure. Some examples of changes in the printers
include using lasers and electron beams in place of ultra-violet (UV) or white lighting in the
case of DLP.

Page | 178
3D printing has had a substantial rise in commercial use with companies using the printers to
produce varied prototypes to finalize the final model that would be approved for mass
production. It has also found increased use in medicine, with doctors experimenting with
prostheses, living tissue and bone material. At present the units are too sophisticated and
expensive for home-users, however, home printers are near future possibility. 3D printing
presents exciting prospects for the future; however it also poses many legal puzzles.
Firstly, it has serious security repercussions. It enables individuals, including terrorists, to
manufacture any weapon comfortably. In fact, 3D printed guns have been already
manufactured in United States, Japan and Australia. Secondly, it has significant tax
implications. Since product sold (CAD) is in a form of digital file, it will not be subject to
custom duties imposed on physical products. In this context, effort towards making WTO
moratorium on custom duties on digital products permanent, acquires considerable weight.
Thirdly, some scholars argue that 3D printing will increase the incidence of patent
infringement. Consumer will merely need to procure digital file containing instructions for
the 3D printer (CAD) and can make infringing copies at home. Fourthly, issue of standards
and interoperability will come into play here as well.
Entertainment Services: Recently there has been proliferation of online entertainment
services which provide online access to movies, documentaries, TV shows for subscription
fee or free of charge. Such services can be called Over the Top (OTT) Video Streaming
Services. Netflix, Amazon Prime and Hulu Plus are some of the leading players in this
market. OTT video streaming services provide unlimited video streaming service i.e. supply
of content (movies, TV shows, documentaries etc.) to the subscribers via internet which can
viewed on the Internet connected devices such as smart-phones, laptops, tablets and smart
televisions. They offer following benefits as compared to traditional cable TV or Direct to
Home (DTH) broadcast:
a. Subscribers have option of choosing from wide variety and extensive amount of
content.
b. Content can be instantly accessed at any time (24 hours) unlike traditional TV where
movies or shows can be watched at pre-specified time slots.
c. Customers pay subscription fee like DTH service, but do not get any advertisement
during streaming.
d. Subscribers can access unlimited amount of content i.e. there is no limit on number
videos that can be watched during subscription period.
e. Subscribers can watch content at their pace i.e. half an episode, full episode or entire
TV show in one go.
f. Content can be viewed on multiple screens at the same time. These services
primarily licenses content created (produced) by others, but they also creates their
own content which can be exclusively viewed through their website.
They generates revenue through subscription fee charged to users and in return subscribes
can access unlimited amount of content during the subscription period. They also collect
great quantity of user data through active and passive means. This data is used to create
unique user profiles and provide them with personalised experience through content
recommendations. User preferences are also used to as a guide for creating, cancelling or
continuing the content.

Page | 179
Major legal issues associated with these services are:
First, net neutrality is uniquely associated with OTT video streaming. Physical distance
between content provider and user affects the quality and speed of the delivery of the Internet
data. OTT video streaming is particularly sensitive to the distance from the subscriber as
seamless delivery of videos requires higher bandwidth. Therefore, such service providers
enter into agreements with the ISPs for dedicated channel for their content. This induces ISPs
to discriminate between the various types of contents delivered by them and many consider it
a violation of net neutrality principle. At the same time, many others argue that such practice
is reasonable network management and integral to efficient Internet service. Netflix and
Comcast were involved in a dispute over this issue. Though, they resolved the dispute,
legally it remains unsettled.
Second, data security and privacy are inextricably involved with these services as well due to
large amount of data collected by the service providers.
Third, mobile and cable network operators argue that OTT service providers use the telecom
infrastructure without paying for it, and they’re not subject to the regulatory regimes that
apply to operators such as Idea, Airtel & Vodafone. The telecom service providers also bear
the additional burden of various tax provisions by local, regional and national authorities.
Fourth, Countries like India amended service tax laws to bring offshore service providers
like Netflix providing online services from servers located outside India under the service tax
net. Such service providers would be required to obtain registration in India or appoint an
agent to undertake all such compliances on his behalf in case the service provider does not
have physical presence in India.
Electronic Payment System: Electronic payment (e-payment) system enables consumers to
pay for goods and services electronically. It entails exchange of digital financial information
such as encrypted credit/debit card numbers, electronic cheque or digital currency. E-
payment system in which large amount of money is transferred is called macropayment
system and in which small amount of money is transferred is referred to as micropayment
system. A 2006 OECD Report on online payment systems categorised various payment
systems into account based and electronic currency systems. As per the report, account-based
systems allow payment via an existing personalised account (usually a bank account),
whereas electronic currency systems allow payment, if the payer has an appropriate amount
of electronic currency. Details are as follows:
Account-based Payment System:
a. Credit cards and debit cards: Online use of credit and debit cards is similar to their
offline use except physical copy of card and signed confirmation by the buyer. Here
payment is made directly from the buyer’s account with the bank.
b. Mediating systems: In this system buyer makes an account with the mediating services
and is able to make payment to the sellers who have accounts with the same mediating
service. When buyer uses a mediating system to make the online payment, he/she does
not need to provide bank account details to the seller. Paypal is an example of such
service.

Page | 180
c. Mobile payment and telephony account systems: Mobile payments are payments
conducted through wireless devices. Telephony payment occurs by phoning a special
number the merchant has installed with an operator, by sending a particular code by
SMS, by voice contact, or by dialup to access content on a site and the user is charged by
the minute for using the site
d. Payments via online banking: Here the account holder is redirected to the bank’s Web
site by the merchant site to effect payment.

Electronic Currency Systems:

a. Smart card-based systems which are most commonly used to pay small amounts within
organisations (e.g. vending or copying machines or Metro). They usually rely on
specialised hardware and dedicated smartcard readers for authentication; and
b. Online cash systems which are software-only electronic money instruments based on
signed (?) money. Electronic cash is broadly defined as electronically stored monetary
value. They usually work via prepaid cards (one may not need a physical card, you
mention e-tokens below), and arrangements differ although most require merchant
subscriptions. Electronic tokens representing a certain value are exchanged in a similar
way to cash.
Decreasing technology, operational and processing costs along with increasing online
commerce have provided fillip to growth of e-payment systems. However, e-payment
systems are not devoid of legal concerns.
First, privacy and security of data remain of utmost importance. Since, e-payment system
involves exchange of sensitive information like debit/credit card numbers, banking details,
passwords etc., data security is very crucial for the protection of consumer privacy and
prevention of any theft or fraud.
Second, authentication is next major concern. In order to ensure secure transaction in a
setting where face to face interaction is absent, robust authentication measures are important.
However, laws of different countries provide different authentication standards, sometimes
specifying a clear technology bias.
Third, determining the relevant law that parties will be governed by in respect of electronic
transactions (whether by the contract, or in its absence, by general principles of law). This
may create problems, especially when the laws in Country A, where the company is
registered permit electronic payment contracts, whereas the laws in Country B, where the
consumer is located, do not support electronic payment contracts.
Fourth, legal recognition of digital currencies is a matter of concern too. Currencies like
Bitcoin are not recognised in most jurisdictions and any transaction in such currency is risk
prone. Transaction in digital currencies is sometimes also used for money laundering.
Another recognition related aspect is that e-payment companies do not go through the same
rigorous licensing procedure as brick and mortar payment companies. There is an ambiguity
as to what should be the extent of regulatory supervision for e-payment companies.
Cloud Computing: Cloud computing services allow linking, storing and processing of
massive volumes of data generated across an enterprise, drawing on the computational power

Page | 181
of hundreds of machines, and analysed via utility services. Individuals and companies can
thus utilise storage and computing capacity without the need to make large capital
investments, as well as being able to avail themselves of such resources from anywhere
where there is network access. Exports of cloud computing services were estimated to be
worth approximately $1.5bn in 2010 (and this is likely a conservative figure) and the market
for cloud computing services is anticipated to grow by up to 600 percent by 2015.

The legal questions related to the cloud computing are:

First, Cloud –computing entails storing of massive amount of data and therefore is
automatically subject to data privacy and data security concerns;
Second, data ownership is another significant issue. There is a possibility of ownership
conflict between the client using the cloud service and host of the cloud service. Generally,
contract would resolve such conflict. But, in the absence of clear contract, host can claim
ownership over data even after termination of service;
Third, extent of the liability of the host for any data misuse or breach is also contentious
topic. Currently, it is governed by the contract between client and host. In the cases where
client does not have bargaining power or contract is not negotiable, host can escape liability
completely. Many publicly available cloud computing contracts limit liability of hosting
provider to a level that is not in line with the potential risk;
Fourth, compliance of regulations and laws related to tax, data protection, damages under
contract can be difficult due to absence of onshore facility or legal office.

Trade, Property Rights, Law and Technology

The Law, Property Rights, Incentives, and Trade: In defining property rights, the law
creates the conditions that are crucial for the development of technology. Without property
rights, the world would be a vast commons in which productive incentives would be absent.
Few would labor to create wealth if others were free to take it. Property rights enable people
to keep the wealth that they create. Property rights, for example, enable the farmer to keep
the crops that he raises. These rights provide him with the incentive to farm. Almost all
societies have recognized such basic property rights as the right of a farmer to his crops. But
a new and crucial dimension is added to property rights when property becomes transferable.
When property is transferable, then the incentives to be productive increase exponentially.
When a farmer possesses the right to keep the crops that he raises, he has an incentive to
raise crops to feed himself and his family. When he is able to trade his crops for goods or
services provided by others, he acquires an incentive to produce more than for his own needs.
Transferability means that I have an incentive not only to create goods and services for
myself. It means that I have an incentive to create goods and services for others as well, since
I will be able to transfer the benefit of my productive activity to others, and they will be able
to compensate me by transferring some of their property to me in payment. As discussed
below, transferability provides the basis for specialization and scale economies, and it also
underlies the principle of comparative advantage in international trade.

Page | 182
Intellectual Property and its Incentives: Although property rights are essential to
productive incentives, traditional property rights fail to generate incentives for creative
activities. If I devise a new product or a new, more efficient way to employ inputs to produce
wealth, my creativity can be replicated at will in a society that recognizes rights only in
traditional property.29 Modern societies, therefore, create rights in intellectual creations in
order to provide incentives to create as yet unknown technologies or improvements in
existing technology. A person who creates a new technology qualifying for patent protection,
for example, acquires exclusive rights in his invention for a twenty year period.
The laws creating these rights are generally referred to as intellectual property laws. A
common way of viewing these laws is to see them as remedying a market failure by filling a
pre-existing gap in property protection.30 Just as tangible property rights transform what
would otherwise be an incentive-free commons into a regime that provides productive
incentives, intellectual property laws transform parts of a preexisting intellectual commons
into a regime that provides incentives for creativity.
The intellectual property laws that are most important to the development of technology are
the patent and copyright laws. Their importance has been recognized throughout the history
of the Republic. Indeed, the U.S. Constitution specifically authorizes Congress to enact both
sets of laws in order “[t]o promote the Progress of Science and useful Arts.”31 This phrasing
reflects the understanding of the Framers those creative activities could be stimulated through
the economic incentives that the patent and copyright laws provide.

Competition, Monopoly, Technology and the Generation of Wealth:

We know that free and open markets maximize productive incentives and that competition
among sellers maximizes societal wealth.32 So long as markets operate competitively, goods
and services are routed to their highest valued uses. A competitive economic system also
fosters productive efficiency in the short run by pressuring producers to employ their most
cost-effective techniques and in the long run by replacing the less efficient producers with
more efficient producers. Thus, at all times, competition pressurizes producers to employ the
most efficient technologies available to them.
Although competitive markets force producers to act efficiently, the tendencies of
monopolies are otherwise. Monopolies tend to restrict production in order to maintain prices
at higher-than-competitive levels. In so doing, they deny society those uses of their products
whose values are less than the monopoly price but higher than their cost of production. This
output restriction is inconsistent with the allocation of society’s assets to their highest valued
uses and constitutes a social waste that economists often refer to as a “deadweight social

29
35 U.S.C. § 154(a)(2) (2000)
30
See, e.g., Daniel J. Gifford, Innovation and Creativity in the Fine Arts: The Relevance and Irrelevance of
Copyright, 18 CARDOZO ARTS & ENT. L.J. 569, 572-73 (2000)
31
U.S. CONST. art. I, § 8, cl. 8
32
See Daniel J. Gifford, Government Policy Towards Innovation in the United States, Canada, and the
European Union as Manifested in Patent, Copyright, and Competition Laws, 57 SMU L. REV. 1339, 1340
(2004)

Page | 183
loss.”33 In this respect, monopolies produce allocative inefficiencies. Monopolies, moreover,
are also less keyed to productive efficiency, as the incentives to implement new technologies
are reduced in monopolistic market structures. While competitive markets are forced by
competition to adopt the most efficient technologies as they emerge, monopolies lack that
competitive pressure. A monopolist, of course, has an incentive to invest in efficient
technology, as that technology will reduce its costs and thereby increase its profits. But
because the incentive structure is reduced, the implementation of new technology may be
delayed.34
Society’s embrace of competitive markets as a means of maximizing aggregate wealth exists
in a dynamic tension with the use of the exclusive rights over technological developments
provided by the intellectual property laws. Because there may be no effective substitutes for
some such developments, the exclusive rights provided under the patent law may amount to
an economic monopoly. In exercising its monopoly power under the patent, the patentee
may, like other monopolists, license the technology at rates that are sufficiently high as to
exclude many uses. As a result, society is denied uses of a valuable technology, societal
assets are misallocated, and deadweight social loss results.35
The tension between intellectual property rights and competition is reflected in the uneasy
relationship that has existed, and continues to exist, between the antitrust laws and the
intellectual property laws, especially within patent and copyright law. In one view, perceived
conflict between the policies of the Sherman Act and patent and copyright laws lacks
substance. The competition laws are designed to foster economic welfare and so are the
intellectual property laws. The latter employ exclusive rights as a means for generating new
technology; and new technology raises societal welfare. The restraints imposed by
intellectual property rights holders are in newly created markets that would not have existed
had these restraints been barred ex ante. In this view, the intellectual property laws do not
create restraints that would not exist in their absence. Finally, technology probably is largely
responsible for much of our economic welfare, and the intellectual property laws are
designed to foster the development of new technology.36
There are, however, more sophisticated ways of understanding the relation between the
competition laws and the intellectual property laws. It is true that intellectual property laws
help to provide the incentives that stimulate the technological innovation that enriches
society. But that analysis is overly simple. Intellectual property laws generate both benefits
and costs. Their major costs lie in the very exclusivity that they provide rights holders. Those

33
See, e.g., ROBERT S. PINDYCK & DANIEL L. RUBINFELD, MICROECONOMICS 348 (5th ed. 2001).
The deadweight social loss is the net value of the output that would be produced in a competitive market, but
which is not produced by a monopoly. It is the difference between (1) potential buyers’ reservation prices that
are less than the monopoly price and (2) marginal cost.
34
See Kenneth Arrow, Economic Welfare and the Allocation of Resources for Invention, in THE RATE AND
DIRECTION OF INVENTIVE ACTIVITY (R.R. Nelson ed., 1969)
35
See Daniel J. Gifford, How Do the Social Benefits and Costs of the Patent System Stack Up in
Pharmaceuticals?, 12 J. INTELL. PROP. L. 75, 82 (2004).
36
See, e.g., Joseph F. Brodley, The Economic Goals of Antitrust: Efficiency, Consumer Welfare, and
Technological Progress, 62 N.Y.U. L. REV. 1020, 1026 (1987) (“[S]tudies have shown that over the forty-year
period from the late 1920s to the late 1960s, at least half of the gain in United States output was due solely to
technological and scientific progress.”)

Page | 184
laws not only generate new technology, they also restrict its use. This restriction—however
justified as necessary to generate incentives—is nonetheless a social waste. Ideally, a society
should limit intellectual property rights to a term in which the marginal social costs of the
restraints that they facilitate are less than the marginal social benefits that they provide. Louis
Kaplow developed such an analysis over twenty years ago.37
Observing that the longer the patent term, the greater the incentive to invent, Kaplow
assumed that lengthening the patent term would generate additional inventions. But he also
pointed out that an increase in the patent term would extend the patent-based restraints on all
existing patents—a patent on inventions for which the existing term of protection was
adequate. Extending the term would both generate marginal social benefits (i.e., new
inventions) and marginal social costs (i.e., adding an additional year of restrictions on all
other inventions). Although Kaplow’s analysis is ingenious, it cannot be easily applied
because no one knows how to quantify either the marginal benefits or the marginal costs of
inventions. His analysis does, however, provide a conceptual insight into the policy issues
latent in tensions between competition laws and intellectual property laws. Moreover,
Kaplow’s analysis provides a framework for policy judgments. Under simplified but
reasonable assumptions, the existing patent term may well produce positive welfare results at
the margins.38
The Scope of Intellectual Property Protection: The law defines not only the term of
intellectual property rights but also their scope. In defining their scope, the law again enters
an area of tension. For decades, the competition laws and the intellectual property laws have
wrestled with issues of tying and bundling, which are issues that concern the scope of
intellectual-property protection. Does my intellectual property right authorize me to insist
that purchasers, lessees or licensees use other products along with the protected one? In the
early twentieth century, the courts appeared willing to permit a patentee to control the
products that could be used with a patented one.39 Later, the courts developed a doctrine of
patent misuse as part of patent law. During the first half of the last century, the courts treated
the tying of a separate product to a patented one as misuse.40 During the period of misuse, the
courts would not enforce the patent. The misuse cases eventually affected the antitrust laws.41
In the 1960s, the act of tying a product to a patent or copyright became a per se antitrust
violation.42
In recent years, the courts have sharply curtailed the availability of the doctrine of
equivalents. Amendments to a patent application are likely to estop a patentee from later
relying upon the doctrine of equivalents, especially when the patentee attempts to use that

37
See Louis Kaplow, The Patent-Antitrust Intersection: A Reappraisal, 97 HARV. L. REV. 1813, 1825-26
(1984)
38
See Gifford, supra note 8, at 106
39
See, e.g., Henry v. A.B. Dick Co., 224 U.S. 1, 47-49 (1912); Heaton Peninsular Button-Fastener Co. v.
Eureka Specialty Co., 77 F. 288, 300-01
40
See cases cited supra note 12
41
Minneapolis-Honeywell Regulator Co., 320 U.S. at 684 (“[T]he effort made here to control competition in
this unpatented device plainly violates the anti-trust laws”)
42
United States v. Loew’s Inc., 371 U.S. 38, 44-45 (1962)

Page | 185
doctrine against variations that were foreseeable at the time of the amendment.43 In the
biotech area, the patent law’s written description requirement limits the doctrine of
equivalents in ways that make its ramifications socially problematic. Thus in a leading case,
the Federal Circuit ruled that the University of California at Berkeley, which had isolated the
DNA coding for rat insulin, could not assert claims to human insulin, even though human
and rat insulin are very similar.
Negative Externalities: The negative aspects of the law and technology relationship are
illustrated in a leading New York case that applied (and modified) classic nuisance doctrine
against a cement plant whose emissions of dust and raw materials were damaging nearby
landowners.44 Although the court ostensibly refused to make use of private litigation as a
means of furthering the public interest in cleaner air by closing the offending plant, the court
nonetheless recognized that cost externalities underlay the lawsuit. In its ruling, the court
ordered the defendant to compensate the plaintiffs, thus forcing the defendant to internalize
the pollution costs that theretofore had been borne by the plaintiffs. The problem in this
case—as in almost all pollution cases—is that the adverse effects of a business firm’s
discharges into the air or water do not appear on the firm’s books as a cost of its operations
nor does the firm bear those costs in any other way. Accordingly, costs that are properly
attributable to the firm’s operations are borne by others or by society at large. Federal and
state anti-pollution legislation is thus directed towards forcing business firms to internalize
these costs. Firms internalize these costs when they compensate affected people (as in the
New York case cited above) or when they take action to reduce the levels of the emissions
from their plants. When all such firms take such action, they pass on those costs to their
customers, who bear the final costs of producing the products that they desire.45
The task of forcing polluting business firms to internalize their costs was initially carried out
through traditional prescriptive regulation. In recent years, however, legislators and policy-
makers have concluded that the traditional command-and-control approach to pollution
reduction is often not the most effective one. As a result, an array of programs involving
incentives, pollution caps, trading permits, and stakeholder negotiations have emerged.
Experience appears to show that the basic idea behind these less coercive approaches is a
sound one, but that the programs need to be carefully designed and supervised to prevent
abuses.
Positive Externalities: To what extent can law be designed to engender enhanced economic
growth by, for example, fostering synergistically employed technologies, the creation of
compact skilled labor markets, or the development of advanced technology? Both theory and

43
Festo Corp., 535 U.S. at 736-40; Warner-Jenkinson Co., Inc., v. Hilton Davis Chemical Co., 520 U.S. 17, 40-
41 (1997)
44
See Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 219-20 (1970). The application of traditional nuisance
doctrine would have required the court to abate the nuisance by shutting down the defendant’s plant. Because
the value of the defendant’s operations greatly exceeded the harm imposed on the plaintiffs, the court instead
ordered the defendant to compensate the plaintiffs for their harm. The court thus forced the defendant to
internalize as costs that part of its operations that were imposing harm upon the plaintiffs. See discussion of this
case in Alexandra B. Klass, Common Law and Federalism in the Age of the Regulatory State, 92 IOWA L.
REV. 545, 571-72 (2007)
45
See, e.g., Thomas Lundmark, Systemizing Environmental Law on a German Model, 7 DICK. J. ENVTL. L &
POL’Y, 1, 18 (1998) (discussing internalization of social costs of pollution and their transmission to customers)

Page | 186
experience suggest that laws and legal institutions can play significant, but limited, roles in
technological development. Law and legal institutions play a significant role in the
development of new technology through the intellectual property laws, as noted above. The
law and legal institutions play a major role in engendering basic research, for which market
incentives are lacking. These legal and governmental interventions are general in nature and
help to provide stimulus that the market cannot provide.
Law can be effective in promoting economic objectives when it acts as an adjunct to the
market. The genius of the patent system is that it provides a legal structure keyed to the
market. The law provides the exclusive rights that act (in conjunction with the market) as the
stimulus to invention, but the market is the ultimate determinant of the rewards. The system
rewards only those who produce what the market demands. Should government—through
law and legal institutions—attempt intervention to foster the growth of particular industrial
sectors or business firms, it is likely to fail. An array of proposals for government
intervention in particular sectors of the economy were made during the 1980s and early
1990s under the rubric of “industrial policy”. In these situations, the success of government
and legal intervention would require legislators or officials to possess greater information
than the market. Because this is virtually impossible, government interventions on behalf of
particular industries or companies are almost certain to decrease rather than increase overall
economic well-being. In addition to the government’s relative lack of knowledge, its attempts
at intervention in the economy would be subject to distortion by interest groups seeking
assistance, often from the very industries that were in decline and whose future was in doubt.
Yet it would be those industries—because of their close community ties and sometimes large
work forces—that would be able to exert substantial political pressure on their behalf. For all
of these reasons, government, law, and legal institutions appear incapable of generating
positive externalities in particular sectors of the economy.
International Trade and Technology: A key spur to industrial development in the United
States has been its large continent-wide market. This large market has enabled manufacturers
to employ technology incorporating scale economies. Conversely, during the late nineteenth
century and early twentieth century, Europe was divided into nation-sized markets by
protectionist legislation. As a result, European manufacturers lacked access to a large market
that was conducive to scale economies. Although a tariff barrier also protected U.S. markets
during this period, its manufacturers nonetheless had access to the large U.S. domestic
market. The negative effects of protection on industrial development that afflicted European
manufacturers, accordingly, were muted in this country.
Since the adoption of the General Agreement on Tariffs and Trade after the conclusion of
World War II, the nations of the world have been gradually reducing their tariffs, stimulating
an ever increasing amount of international trade. This movement towards freer trade
culminated in the creation of the World Trade Organization in 1994 and the associated
TRIPS agreement. The lowering of tariffs and other barriers to trade subjects U.S. industries
to competition from abroad (and subjects foreign producers to competition from U.S.
producers), thus intensifying worldwide competition. This new competition increases the
pressures on all industry participants to develop and employ the most efficient technologies.
This intensifying global competition provides a comparative advantage to labor-intensive
technologies in developing nations with relatively low wage rates. As a result, U.S.-based

Page | 187
producers in labor-intensive industries producing tradable goods are in the process of being
replaced by producers from developing nations. At the same time, the adoption of the TRIPS
agreement means that the U.S. advantages in the production of creative products (such as in
the software, pharmaceuticals, and entertainment industries) will be strengthened, as
intellectual property protection extends globally.
The pressures of global competition thus are forcing a reallocation of the technologies
employed in each nation in ways that reflect each nation’s comparative advantage. Although
some temporary hardships will occur, the end result will produce an overall increase in the
world’s wealth, benefiting all nations. And because the new WTO-TRIPS regime widens
protection of intellectual property, the incentives for innovation are increased. These
increased incentives should generate additional innovation, which over time will produce
increases in global welfare.
Legal Failures and Market Failures: The preceding discussion has referenced various
places in which laws and market incentives interact to foster the development and
employment of technology, generating increases in aggregate welfare. Yet there remain gaps
or failures in these law/market interactions. Market failures are often the result of the failures
of the legal system to adequately specify property rights. Intellectual property laws, for
example, are required to remedy inadequacies in the property rights regime that the legal
system developed in simpler times. Thus, market failures can often be understood as the
result of legal failures. In the twenty-first century, other failures of the law/market
relationship are becoming widely appreciated. These newly appreciated failures differ from
the law/market failures previously discussed because they are not identified by welfare
analyses that use an index of maximizing aggregate economic welfare for measurement.
The pharmaceutical industry provides an example of how law and technology interact both
positively and negatively. The current intellectual property system generates incentives for
pharmaceutical companies to develop new drugs for the relief of illnesses experienced by the
populations of the developed nations. As observed above, the companies are rewarded for
their efforts from sales of successful products at supra-competitive prices. It was noted above
that a negative (albeit necessary) effect of this system is the short-term waste that results
when these higher prices exceed the reservation prices of potential customers. TRIPs requires
that all members of the WTO begin to recognize and enforce intellectual property rights.
Most of these rights involving pharmaceuticals belong to companies from the developed
world. As a result, the negative effects of intellectual property rights involving
pharmaceuticals are magnified. The legal framework established by the WTO and TRIPs
have only gradually began to adjust to these problems.
First, the short-term waste imposed by the denial of lifesaving drugs to millions in the under-
developed world is immense, dwarfing the dead-weight loss in the developed nations. In the
under-developed nations, the lives of millions of people depend upon access to HIV-AIDS
drugs. If they cannot receive these drugs because the prices are keyed to the markets of the
developed world, then the social loss is staggering. Moreover, in assessing this loss,
traditional economic approaches are problematic: it will not do to set the value of a life on
the basis of a person’s earnings converted into the currency of the developed world, as in
euros or dollars. Such an approach would obscure the human tragedy involved. Second, the
current international legal system appears to impede any effort by the pharmaceutical

Page | 188
companies to reduce their prices in the poorer underdeveloped world. Those companies
might benefit themselves as well as millions of potential customers by offering their products
at prices keyed to local market conditions. The danger of potential arbitrageurs purchasing
their products at these lower prices and reselling them in Europe and North America,
however, discourages such a course. This danger is reinforced by The General Agreement on
Tariffs and Trade (GATT) Article XI, incorporated into the World Trade Organization
Agreement. GATT Article IX appears to prevent governments from interfering with arbitrage
operations.
The provisions of GATT Article XI, however, should be read in conjunction with Article 31
of the TRIPS Agreement53 that permits governments to subject patentees to a compulsory
licensing regime in cases of national emergency or other circumstances of extreme urgency.
The Doha Declaration of 2001 and the subsequent WTO General Council decision of 2003
contemplate an extension of the literal terms of Article 31 to authorize a government to
impose compulsory licensing, allowing foreign producers to supply needed pharmaceuticals.
But the Council decision took steps to ensure that the imported pharmaceuticals would not be
subject to export by arbitrageurs. This approach towards a broad interpretation of Article 31
may well have implications for the interpretation of GATT Article XI in situations of health
emergencies.
Article 31 and its construction in the Doha Declaration and Council decision provide some
relief for underdeveloped nations experiencing health emergencies. The effects of the Doha
Declaration and Council decision on the interpretation of GATT Article XI and the
consequent ability of pharmaceutical companies to offer discount pricing in nations whose
governments commit to preventing arbitrage is as yet unclear. Nevertheless, the foregoing
matters are broadly suggestive of substantial deficiencies in the way law and pharmaceutical
technologies interact in the development and deployment of new products. The intellectual
property regime of the developed world appears to generate products needed in that world.
But—apart from the limited exemptions available under TRIPS Article 31 and the Doha-
generated glosses on its provisions—that regime denies the use of newly-developed
pharmaceuticals to the underdeveloped world. In addition, the present system skews research
solely toward the needs of the developed world. The western intellectual-property regime
provides no incentives for the development of cures for sleeping sickness or other illnesses
not found in western nations. Nor does that regime provide incentives for the development of
vaccines against tuberculosis, a scourge of underdeveloped nations.

Relationship between Law and Technology in India:

Technology has significantly driven India’s growth over the past decade. Be it the rise of
well-funded startups and ‘unicorns’, the imaginative use of technology for governance, or the
emergence of India as a hub for R&D activity and a test bed for product innovation,
technology is an important driver for growth in India. A 2018 report by the Startup India
Initiative states: ‘The ecosystem comprises of over 14,600+ Startups, approximately 270
incubation & business acceleration programs, 200 global & domestic VC firms supporting
homegrown Startups, and a fast-growing community of 231 angel investors and 8 angel
networks. India also boasts of being home to the 3rd largest unicorn community, with over

Page | 189
16 high valued Startups having raised over $17.27 billion funding, with overall valuation of
over $58 billion.’46
But with this exponential growth comes a set of policy and regulatory challenges. First,
government policy and the regulatory framework need to be aligned to enable the growth of a
robust technological ecosystem, rather than impede it. The global competition for leadership
positions in emerging technology domains, such as artificial intelligence, drones, gene
editing and other areas, has become aggressive, with China becoming a lead contender. This
global race demands impactful innovation policies that ease up creative and inventive
activity, but in a responsible manner.
Second, as various incidents post 2016 demonstrate, the rise of the digital has created new
vulnerabilities and new types of harm to individual and group rights. A digitally connected
ecosystem is rife with security concerns, which are exacerbated when digital literacy does not
keep pace with digital use. Moreover, with personal data becoming a critical tool for
monetization and profiling, the incentive for both industry actors and the state to secure such
data and respect individual privacy is quite low. Both the Facebook–Cambridge Analytica
controversy and the unrestricted seeding of Aadhaar data in multiple databases to build a
360-degree view of citizens indicate distinctive kinds of threats to individual and community
rights. Therefore, respect for privacy and individual/community rights must be externally
imposed, with regulations playing a part in this process.47 In short, developing an indigenous
regulatory framework for new technologies is a pressing need for India. Three central
principles are integral to this transition.
Three Central Principles: The first principle for regulators and policymakers to bear in
mind is clear identification of the problem that regulation must address. While this is not
unique to the technology context, there are a few specificities in this field that make this
principle worth emphasizing. Often, technological change affects sectors that are under an
existing regulatory apparatus, as seen in the case of online cab aggregators or food delivery
services. When regulators attempt to transplant this apparatus to a new factual reality, a
common mistake is to assume that regulations must address the same set of problems as
witnessed in the earlier non-tech scenario. But in doing so, the regulatory response addresses
more problems than required, because technology-enabled models are likely to sort out at
least some concerns.48 This response also presents the danger of under-inclusion as new
challenges raised by technology-based models may be missed in the process. Therefore, it is
imperative to clearly identify surviving and new problems caused by technology, separate
those that demand immediate regulatory attention from others that may only require a wait-

46
States’ Startup Ranking 2018’ (New Delhi: Department of Industrial Policy & Promotion, 2018), 7 -
8, https://www.startupindia.gov.in/content/dam/invest-india/compendium/Star....
47
Alvin Chang, ‘The Facebook and Cambridge Analytica Scandal, explained with a simple
diagram’, Vox, 2 May 2018, https://www.vox.com/policy-and-
politics/2018/3/23/17151916/facebook-camb... Rachna Khaira et al., ‘UIDAI’s Aadhaar software
hacked, ID database compromised, experts confirm’, Huffington Post (11 September
2018), https://www.huffingtonpost.in/2018/09/11/uidai-s-aadhaar-software-hacked....
48
Ryan Hagemann, ‘A regulatory framework for emerging technologies’, 1776, 16 March 2016,
athttps://www.1776.vc/insights/regulation-emerging-technology-government-d....

Page | 190
and-see approach, and then develop targeted regulatory and monitoring strategies for each of
these concerns.
For instance, the draft e-commerce policy released for discussion in 2019 defines ‘e-
commerce’ as including ‘buying, selling, marketing or distribution of (i) goods, including
digital products and (ii) services; through electronic network’. Evidently, this is an extremely
wide definition that brings within regulatory control a wide range of activities from online
retail to app-based health delivery. The document also attempts to outline policy for a host of
different problems: data; infrastructure development; e-commerce marketplace regulations
such as anti-counterfeiting, anti-piracy and foreign direct investment; consumer protection;
payment related issues; export promotion; and content liability exemption, among others.
The concerns of social media are far removed from fashion retail, and consumer woes
pertaining to online travel booking differ vastly from digital health solutions. 49 The
unfortunate result is a heavily diluted effort that portends regulatory overreach. To avoid this
in the future, regulatory approach must shift course from deciding in advance the range of
business activities that need regulation to identifying the specific problems that proposed
regulations must address, under the first principle discussed above. Inability to do so would
only cause apprehension and uncertainty for businesses, and extremely ineffective and
diluted protection for citizens.
The second principle is to prioritize a risk-based and responsive regulatory approach. When
regulating unfamiliar territory, as is mostly the case with new technologies, proclivities to
entirely ban an activity or create restrictive pre-activity licensing models are high. The
bureaucratic instinct to play safe and apply a ‘precautionary principle’ comes at the cost of
innovation and entrepreneurship.50 Moreover, because many new technologies have cross-
cutting impact, even these decisions are taken in silos with one agency or regulator taking a
more pro-technology view while another acts more restrictively.
The changing stance on data localization in India suffers from failure to adopt such a risk-
based approach. At the heart of this debate is whether private entities must be compelled to
store the data of Indian citizens in servers located within India. A compelling rationale
offered in support of this measure is that law enforcement officials find it difficult to
investigate criminal misconduct when data resides in servers located elsewhere. Another
rationale offered is the threat to national security because of the possibility that foreign
governments can spy on Indian citizens, taking advantage of the fact that their data resides in
servers within their jurisdictions. A third rationale argues that localization can help advance a
domestic artificial intelligence and data ecosystem, as done by China previously. 51 But
amidst these multiple narratives, there is no clear study from the Government of India or any

49
See Ananth Padmanabhan and Arjun Sinha, ‘White Paper on Regulating E-Commerce in India:
Need for a Principles-based Approach’ (New Delhi: Centre for Policy Research,
2019), http://www.cprindia.org/research/reports/white-paper-regulating-e-commer....
50
Darcy Allen and Chris Berg, ‘Regulation and Technological Change’, in Australia’s Red Tape
Crisis, edited by Darcy Allen and Chris Berg, 218, 226-227 (Queensland, AU: Connor Court
Publishing, 2018
51
Compare, in this regard, the Reserve Bank of India Directive RBI/2017 -18/153 dated 6 April
2018 with the draft National E-Commerce Policy.

Page | 191
of the regulators about the extent of harm caused because of servers residing outside India,
the less restrictive measures that could equally address any of these concerns.
To address these concerns, the regulation of emerging technologies should be risk-based and
responsive. This new approach involves detecting undesirable or non-compliant behaviour,
responding to that behaviour by developing tools and strategies, enforcing those tools and
strategies on the ground, assessing their success or failure, and modifying approaches
accordingly.52 By valuing these processes, the overall approach towards regulation changes
in an organic manner. Risk assessment involves multi-stakeholder conversations and an
engagement with data that goes beyond projected fears and growth narratives. It entails
creating a mechanism meant to gather the requisite information, including engagement with
technical bodies. Finally, it also brings about some consensus among different regulatory
bodies regarding the kind of enquiry involved, if not the answers to such enquiry. A healthy
debate on the risks surrounding a new technology is essential for the creation of a
proportionate regulatory framework that balances innovation and protection effectively.
The third principle is to value democratic principles and fundamental rights. The rise of the
Internet and digital technologies has resulted in a loss of traditional state power and
authority, leading to reassertion of control on the part of the bureaucracy. This reassertion
now presents itself in the form of various regulatory controls such as demands to keep the
privacy baseline low so that the state can easily access private communications, attempts to
monitor online speech and to impose criminal and civil liabilities upon those expressing
unpopular or undesirable views, and restrictive business requirements on private actors such
as data localization. These controls, increasingly justified on the basis that China has relied
on similar interventions to successfully build its innovation ecosystem, carry extremely
harmful consequences for the future of democracy in India.
While many of governmental interventions do not come from a place of mala fide intent, it is
important to be reminded often, as a polity, and especially so for policymakers and
regulators, that India is built on a foundation of democratic values and crucial constitutional
safeguards. As our experience with Section 66A of the Information Technology Act, 2000 –
subsequently struck down by the Supreme Court in Shreya Singhal v. Union of India53
demonstrates, the impetus to regulate online behaviour or technological innovation should
not emanate from a deep-seated desire to command and control. Such a desire is likely to
result in unconstitutional behaviour and impermissible inroads into the fundamental rights of
citizens, including free speech and expression and the freedom to do business. While realities
such as the virality of fake news in the age of social media raise serious concerns, responses
cannot be built on the assumption that a strong state (like China) can put a stop to these
concerns. Moreover, often responses of this kind change the very dynamic of citizen-state
engagement in a democracy, leading to possible misuse and a surveillance architecture that
evokes fear.
Privacy Concern in India: Half a century has passed since India framed its Constitution and
still the Indian Constitution still does not recognise privacy as an inherent fundamental right.

52
Julia Black and Robert Baldwin, ‘Really Responsive Risk-based Regulation’, Law & Policy 32(2)
(2010): 181
53
(2015) 5 SCC 1

Page | 192
The concept of privacy as a fundamental right first evolved in the sixties in the case of
Kharak Singh v State of Uttar Pradesh, (1964) 1 SCR 332. The Court held that the Right to
Privacy is an integral part of the Right to Life. But with no clear cut laws, it remains in the
grey area.
Thus, under Article 21 of the Constitution of India, an encroachment upon one's privacy can
be only shielded if the transgressor is the state and not a private entity. If the offender is a
private individual then there is no effective remedy except in tort where one can claim
damages for intruding in his privacy and no more. Tort itself falls in the grey area. An
example of this being, when Maneka Gandhi moved the Delhi High Court against
Khushwant Singh's autobiography Truth, love and a little malice claiming it had violated her
privacy. The judgment went in favor of Khushwant Singh. The two judge bench observed
that the right to privacy enshrined in article 21 could be invoked only against the state action
and not against private entities.
Another landmark judgment which addressed the issue of privacy was the telephone tapping
case—People's Union for Civil Liberties v Union of India, (1997) 1 SCC 301. In this case
the Supreme Court observed, "The Right to Privacy by itself, has not been identified under
the Constitution. As a concept it may be too wide and moralistic to define it judicially.
Whether Right to Privacy can be claimed or has been infringed in a given case would depend
on the facts of the said case.
The problem gets serious when one is virtually defenseless in cyberspace. The Information
Technology Act, 2000 (ITA) has recognized various crimes like cyber- stalking, cyber
snooping, spam mail and such others. An individual can do very little about these offences.
But even the ITA touches the issue of privacy only under Section 72 which talks about
breach of confidentiality and privacy. Thus, if a Government official passes on electronic
information or data that he has received about an individual in his official capacity, he can be
punished.
With the advancement of technology, with every passing moment, even the new ITA seems
obsolete. In a recent article by Satyantan Chakrawarty on the need for use of new hi-tech
devices for the purpose of investigating, the author stated that sometimes the officials
transgress their authority and enter the private domain of the people thus infringing their
privacy. The Research and Analysis Wing (RAW) had access to bugging, surveillance and
counter surveillance equipment. A variety of devices can be used by an investigating agency,
like, e-logger, GSM monitor, laser ear, e-mail interceptor, spy cavities.
However, the increased use of these devices has definitely increased the vulnerability of a
person, and the only check on this is the controller appointed by the Government of India
under the ITA. If the controller is convinced himself that the interception is required then he
may grant the permission for the same. The ITA also provides for a list of reasons, which are
not exhaustive, under which the controller can grant such permission. The reasons in the list
are, in the interest of maintaining the sovereignty and integrity of India, security of the state,
in the interest of pursuing friendly relations with foreign states, public order and preventing a
cognizable offence.

Page | 193
The fact that cannot be ignored here is that while in a case of privacy infringement by a state
or an instrumentality of the state, as discussed above, an infringement action can be brought
under Article 21 of the Constitution, there is no remedy available if such an infringement is
committed at the hands of a private individual. For such an infringement no expensive
devices and equipments are required.
Mobiles
As digital photo components have plummeted in price and their size has shrunk, the privacy
implications of cameras on phones have raised concerns beyond the fears of stalked
celebrities and cheating spouses. Even the makers of camera phones do not seem keen on the
technology when it is turned on them. Samsung Corporation and LG Electronics Inc, the
South Korean handset makers, caused a chuckle in the industry when they banned the use of
their own phones (with camera) in their own facilities this year.

Computers
As regards the friendly computers, our very own PCs can infringe our privacy by sending out
a a lot of information about us to third parties. A software programme by the name of
Spybot.gen downloaded on a computer's hard drive has the power to read MS Word
documents and send contents back to its originator, or to an accomplice.(8)
Also, hacking and spoofing are words not unknown to us. Section 66 of the ITA has defined
hacking and the impact of such hacking can be best understood when a website is defaced.
Section 66(1) states, "Whoever with the intent to cause or knowing that he is likely to cause
wrongful loss or damage to the public or any person destroys or deletes or alters any
information residing in a computer resource or diminishes its value or utility or affects it
injuriously by any means, commits hacking." Thus, hacking can be committed only if the
person has the intent or knowledge of committing the same.
Though steps have been taken by the Ministry of Information and Broadcasting to combat
this crime a lot has yet to be done. Setting up a cyber-crime cell is not the only step that we
need to take. More importantly, we need to educate the investigators in this specialised field.
There should be many training programmes for the police and investigating officers on
cyber- crimes, as awareness levels of such executive functionaries are often quite poor.
Further, reporting the matter to the police means inviting negative media publicity. It also
leads to a media trial about the security capabilities of the said company or its network, often
even without giving the company an opportunity to express its side of the story. The hassles
of going to court and producing evidence are other strong deterrents. Unfortunately, this
scenario prevails not only in India but also worldwide.
However, as a result, cyber-crimes like hacking go unreported. The government basks under
a false sense of security that their companies and networks are free from cyber-crime. Very
few cases are reported to the police and consequently there are very few convictions. Either
one should have all the latest state-of-the-art security systems in place or you are totally
insecure. There is a need to standardise the cyber laws as only 12 countries, including India,
have authenticated digital signatures. Further the countries without cyber legislation need to
be convinced to assist in checking IT crimes.

Page | 194
Recommendations: The regulatory interventions coinciding with India’s period of
technology-led growth have been a mixed bag. Privacy may have found its ally in the Indian
Supreme Court, but the data protection bill has long been in the works without much-needed
push from the government to formalize it as a legislation.54 Moreover, many of the
safeguards against misuse of Aadhaar data, emphasized by the Supreme Court when
upholding the validity of the Aadhaar Act, have been watered down through a recent
ordinance that bypassed legislative scrutiny.55 The data localization debates reveal
uncoordinated action between different power centres within the government, resulting in
both business unpredictability and the fear of censorship through architectural changes to the
Internet. Recent proposals in the realms of e-commerce and intermediary liabilities do not
indicate well-thought-out measures of regulation that factor in the capacity for enforcement,
the impact on fundamental freedoms including speech and business autonomy, or the
proportionality of state action.56
Yet, there have been some green shoots as well. The drone policy is one such, coming as it
did from a place of outright ban on the technology in 2014 to a state-of-the-art reg-tech
solutions like Digital Sky and Regulations 1.0, in 2018, that leave room for further iterations
that match the pace of technological advances in this sector.57 The Telecom Regulatory
Authority of India’s position on net neutrality has been largely well received across the range
of different stakeholders. On digital payments, the government has displayed considerable
sensitivity towards various concerns ranging from innovation in the sector to consumer
dispute redressal mechanisms and competition concerns. In all these cases, what comes
through is some degree of mindfulness to the central principles outlined here. The
government should now build on these early successes to develop appropriate regulatory
toolkits.
Any regulatory intervention in the field of technology policy must begin with an insistence
on a clear outlining of the harms involved and a mapping of the various alternate policy
measures that could be potentially taken to address these harms. This is a good starting point
for citizens and other stakeholders to develop awareness of the challenges that the state
wishes to address, and the fit between these challenges and the proposed regulatory
measures. The European Union has insisted on similar measures as part of its ‘Better

54
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1; Surabhi Agarwal, ‘Personal Data Protection Bill only
after new government takes over’, Economic Times, 4 January
2019, https://economictimes.indiatimes.com/tech/internet/personal-data-protect...
55
K.S. Puttaswamy v. Union of India (2019) 1 SCC 1; Zaheer Merchant, ‘Supreme Court refuses to
entertain challenge to Aadhaar ordinance, tells petitioners to approach High Court’, Medianama, 8
April 2019, https://www.medianama.com/2019/04/223-supreme-court-refuses-to-entertain....
56
See ‘Draft National E-Commerce Policy: India’s Data for India’s Development’ (New Delhi:
Department of Industrial Policy and Promotion,
2019), https://dipp.gov.in/sites/default/files/DraftNational_e-commerce_Policy_... ‘Draft
Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018’ (New Delhi:
Ministry of Electronics and Information Technology,
2018), https://meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24... .
57
Civil Aviation Requirements’, Series X, Part I, Issue I: Requirements for Operation of Civil
Remotely Piloted Aircraft System (RPAS), F. No. 05-13/2014-AED Vol. IV (New Delhi:
Directorate General of Civil Aviation, 2018), http://dgca.nic.in/cars/d3x-x1.pdf.

Page | 195
Regulation’ principles.58 The responsibility cast on the regulator to explain why it is
regulating in the manner it proposes can make a significant contribution towards providing
certainty, accountability and curbs on arbitrary intervention.
Regulation of new technologies should also enable experimentation with bespoke regulatory
approaches and tools, as well as with innovative market solutions, both in a contained low-
risk environment. ‘Experimental regulation’ seeks to achieve this objective by providing
exceptions to, or exemptions from, existing regulation in a ring-fenced environment.14 In
many countries, experimental regulation has taken the form of sandboxing schemes. The UK
Financial Conduct Authority’s Project Innovate is a live example of regulatory sandboxing
for financial technologies. Other jurisdictions such as Australia, Singapore, Switzerland,
Hong Kong, Thailand, Abu Dhabi and Malaysia have also been experimenting with similar
initiatives.15 India needs to create more comprehensive thinking across multiple regulators
about the efficacy and modalities of such regulatory sandboxes.
As many of the new technologies cannot be confined in clear terms to the regulatory
jurisdiction of any one regulator, India also needs to develop strategies for better inter-agency
coordination. The data localization controversy revealed how different regulatory and
recommendatory bodies were at odds with each other on how to address this issue. Because
data is a cross-cutting asset across multiple sectors, it is imperative to build better
coordination and some uniformity in decision-making on matters of data governance. In the
US, the Obama administration had created an Emerging Technologies Interagency Policy
Coordination Committee to tackle the problem of siloed decision-making. Israel has
established an inter-agency team to coordinate regulation of virtual assets. India must learn
from these exercises and build a more coordinated regulatory strategy for data governance as
well as other realms of new technology.
Finally, important regulatory interventions should also carry the mandatory requirement of a
rights impact assessment. The current relationship between regulators and civil society is
mostly one of direct acrimony and distrust, especially when it comes to regulating the
Internet and digital technologies. The only way to usher in a structured change is to mandate
a clear rights impact assessment, where the regulator must necessarily gauge the implications
of the proposed regulatory approach on fundamental and human rights. Many instances of
excessive and harsh regulations can be pre-empted at an early stage if this mechanism is built
into the regulatory process.

Conclusion:
In order to address the dual challenges of rapidly changing technology and pursuant
inequality, mentioned in the Introductory Section, legal efforts have to be made at two levels.
First, law has to ensure level-playing field for infrastructure development for the Internet,
and for its use. At domestic level, this can be done through combination of competition
policy and telecom/Internet sector-specific regulations. Second, level-playing field is also
required for the operation of ecommerce companies. At this level, market naturally favours
companies with large data collection and processing capacity. Such companies take benefit

Better Regulation Toolbox’ (European Commission, 2017), available at http://ec.europa.eu/smart-

58

regulation/guidelines/docs/br_toolbox_en.pdf.

Page | 196
of virtuous cycle where data analytics enables them to capture more customers, which in turn
increases their data analytics capabilities. At present Google, Apple, Facebook and Amazon
(GAFA) along with Uber, Twitter, Alibaba and a few others rule the global digital landscape.
Billions of people provide data about their personal lives and business activities to these
companies, which are using that data as leverage to track and influence human behaviour to
their economic advantage. These companies control key technological and economic
resources. This control shields them from any future competition too. Breaking the virtuous
cycle of data collection may not be practically possible or desirable, but appropriate laws and
rules can ensure that such companies do not abuse their market position and entry barriers for
new and small entrants are minimized.
It is worth noting that taking the legal route is not an answer for all the complications
resulting from omnipresent e-commerce. Law has to take into account purely technical and
economic issues along with the international regime. In addition, there may not be possible to
have a uniform legal approach for all the issues. While some issues need extensive legal
intervention, other issues are better resolved through alternate approaches. So far, globally,
three types of regulatory approach can be observed- complete freedom, no freedom and
limited freedom for digital business.
The United States has exercised minimal regulation to allow online giants to develop and for
the government to use them as tool of national security and intelligence resource; Countries
like China and Russia have adopted an approach of extensive intervention and regulation by
encouraging and supporting domestic search engines and social media structures to secure
domestic private companies interests; and European Union has taken the path of limited
regulation where it allows these companies to function freely subject to competition and data
protection laws. Any country before adopting either of these approaches, must keep in mind
the current economic and technological structure and its rapidly changing nature. Overall,
lawmakers must keep their minds and options open.

Page | 197
Page | 198
 MODULE – VI

LEGAL RESEARCH
METHODOLOGY AND
PROJECT WRITING
TECHNIQUES

Page | 199
Page | 200
 MODULE VI- LEGAL RESEARCH METHODOLOGY AND PROJECT WRITING
TECHNIQUES

A term can be best understood with reference to the purpose it seeks to achieve. The purpose
of research is either to know about or to contribute something new to the existing state of
knowledge. The former can be described as the ‘disinterested search for knowledge and
understanding for its own sake’, while the latter is an application based approach to the
problems in the real world. The prefix re before research signifies a continuum which verifies
or supplements existing knowledge. It involves a systematic, careful, diligent and thorough
investigation into a specific issue with a primary objective of contributing to the existing
knowledge. A directionless, unspecific, unsystematic and mere surface brushing would give
us results that cannot reveal realistic outcomes.

Purpose of Research
Very often the researcher wonders how does, and whom does the research help. This is of
course a mundane question or self-doubt. The normative (philosophical) justification is raise
questions (doubts) about an existing phenomenon (subject/law/) and offer new
interpretations/suggestions through critical investigation. On the other hand the pragmatic
purpose of research is to obtain a formal degree/certificate to advance one’s career.
Following are the primary reasons justifying a research study.

 To contribute to existing knowledge in a discipline (for example, law).

Research can offer new and fresh perspectives by examining a law or social
condition. For example, past legal or social histories may demand review in view of
current social changes. History is a mirror of society and depending on the dynamic
of social changes past facts and their legal interpretations demand new meanings. One
is tempted to quote Justice Krishna Iyer’s well known statement: “A Constitution is a
living document.” His message is constitutional interpretation or understanding of a
subject say, ‘property’ ‘justice’ ‘crime’ ‘sedition’ ‘contempt’ ‘freedom of religion’
need new meanings in the context of new social situations and values (morals).
Constitution therefore should not be a static document to guide changing generations
of people.
Viewed from such progressive perspectives or lens different lens, legal research
makes positive contribution to existing state of knowledge on a particular
subject/issue/concept and thereby expands the horizons of the discipline of Law.
 To inform and offer new directions to making of a Law or its amendment (for
example, capital punishment, right to food or education).
Good research studies therefore guide policy formulations and decision makers. For
example, research can be used to address socio-economic issues say education as to
how it can be given a direction as to ensure economic growth of a nation. Or how
best to avoid food wastage and finding a space for law to regulate such value.

Page | 201
  To address a specific issue or question (for example, substance abuse in
campus).
Research findings are also used to answer a specific issue at hand. It stemmed from
the concerns that the conventional researches were not having much impact and,
thereby, new approaches that were seen as being more relevant and practical in the
real world settings were developed. It can be action research which is both diagnose a
specific issue and attempt to solve it, thereby, to improve practice in some way. Also
it may be evaluation which assesses the existing state of affairs in an era wherein the
accountability has increased. That requires a constant reassessment about the worth or
usefulness of a particular service, policy or other intervention.
Legal Research: Taking a cue from the discussion above legal research can be understood as
a systematic examination of a legal topic and conclude with new findings or
recommendations. This is not an easy task to find the law in a vast mass of statutes which are
constantly amended and supplemented by rules regulations, orders, directives, ordinances,
judgment of courts, and bye-laws. Also for making advancement in the science of law
requires a systematic probe into the underlying principles of and reasons for law. Thus, legal
research has a broad ambit to it. It has to be continuously done by legislators, a judge, a
lawyer, a law student and a law teacher.
Purpose of Legal Research: Law does not sit in a vacuum instead it operates in a complex
social context. It reflects attitudes and behavioral norms, and also control and mould them.
However as these norms are also temporo-spatial, that is changing with time and space, it is
desirous that law has to adapt and be dynamic in order to cope with the changes. Thereby,
legal research becomes essential for ascertainment of law, to point out ambiguities and
weaknesses of law, to critically examine the laws in order to ensure coherence, consistency
and stability of law and its underlying policy, to conduct a social audit of the law, and to
suggest reforms in the law. Taking them one by one:

 Ascertaining the law

In a complex mass of legal statues and coupled with allied legal material it is not
always easy to find the law on a particular point. They are scattered and a single issue
may involve application of various laws. Judicial pronouncements add to the
complexity. A researcher needs to locate, analyze and understand these
pronouncements. So the process involves an intensive analysis of legal instruments
and judicial pronouncements.
 Highlighting ambiguities and gaps
A law is not designed to address every contingency that might arise in future.
Because it’s the nature of law that it is reactive it answers to problems which had
arisen and seldom is it that it is proactive. Secondly even the phraseology of a
provision may not fit with the legislative intent or may not match with other
provisions of the Act. Research highlights these gaps and inbuilt ambiguities.
 Determining coherence, stability and consistency
Via a process of critical evaluation of the law a researcher can exhibit the
consistency, coherence and stability in the law. This helps in future designing and
development of law, legal provision or doctrine, as the case may be.

Page | 202
  Social auditing of law
It’s a pre-legislative step done in order to understand and appreciate the social factors
that had an impact on the making of the law. It enables one to know the stakes the law
intends to protect or change and reasons for the same. Such an audit helps to identify
gap, if any between the legal ideal and the social reality and to know the reasons
responsible thereof. It also enables us to predict the future of law.
 Suggesting reforms In the light of the research reforms can be proposed in precise
terms. These outcomes can be on the basis of an analytical, historical and
comparative research.

TYPES OF RESEARCH
The basic types of research are as follows:
(i) Descriptive vs. Analytical: Descriptive research includes surveys and fact-
finding enquiries of different kinds. The major purpose of descriptive research is
description of the state of affairs as it exists at present. In social science and
business research we quite often use the term Ex post facto research for
descriptive research studies. The main characteristic of this method is that the
researcher has no control over the variables; he can only report what has
happened or what is happening. Most ex post facto research projects are used for
descriptive studies in which the researcher seeks to measure such items as, for
example, frequency of shopping, preferences of people, or similar data. Ex post
facto studies also include attempts by researchers to discover causes even when
they cannot control the variables. The methods of research utilized in descriptive
research are survey methods of all kinds, including comparative and correlational
methods. In analytical research, on the other hand, the researcher has to use facts
or information already available, and analyze these to make a critical evaluation
of the material.
(ii) Applied vs. Fundamental: Research can either be applied (or action) research or
fundamental (to basic or pure) research. Applied research aims at finding a
solution for an immediate problem facing a society or an industrial/business
organisation, whereas fundamental research is mainly concerned with
generalisations and with the formulation of a theory. “Gathering knowledge for
knowledge’s sake is termed ‘pure’ or ‘basic’ research.” Research concerning
some natural phenomenon or relating to pure mathematics are examples of
fundamental research. Similarly, research studies, concerning human behaviour
carried on with a view to make generalisations about human behaviour, are also
examples of fundamental research, but research aimed at certain conclusions (say,
a solution) facing a concrete social or business problem is an example of applied
research. Research to identify social, economic or political trends that may affect
a particular institution or the copy research (research to find out whether certain
communications will be read and understood) or the marketing research or
evaluation research are examples of applied research. Thus, the central aim of
applied research is to discover a solution for some pressing practical problem,
whereas basic research is directed towards finding information that has a broad

Page | 203
 base of applications and thus, adds to the already existing organized body of
scientific knowledge.
(iii) Quantitative vs. Qualitative: Quantitative research is based on the measurement
of quantity or amount. It is applicable to phenomena that can be expressed in
terms of quantity. Qualitative research, on the other hand, is concerned with
qualitative phenomenon, i.e., phenomena relating to or involving quality or kind.
For instance, when we are interested in investigating the reasons for human
behaviour (i.e., why people think or do certain things), we quite often talk of
‘Motivation Research’, an important type of qualitative research. This type of
research aims at discovering the underlying motives and desires, using in depth
interviews for the purpose. Other techniques of such research are word association
tests, sentence completion tests, story completion tests and similar other
projective techniques. Attitude or opinion research i.e., research designed to find
out how people feel or what they think about a particular subject or institution is
also qualitative research. Qualitative research is specially important in the
behavioural sciences where the aim is to discover the underlying motives of
human behaviour. Through such research we can analyse the various factors
which motivate people to behave in a particular manner or which make people
like or dislike a particular thing. It may be stated, however, that to apply
qualitative research in practice is relatively a difficult job and therefore, while
doing such research, one should seek guidance from experimental psychologists.
(iv) Conceptual vs. Empirical: Conceptual research is that related to some abstract
idea(s) or theory. It is generally used by philosophers and thinkers to develop new
concepts or to reinterpret existing ones. On the other hand, empirical research
relies on experience or observation alone, often without due regard for system and
theory. It is data-based research, coming up with conclusions which are capable of
being verified by observation or experiment. We can also call it as experimental
type of research. In such a research it is necessary to get at facts first hand, at their
source, and actively to go about doing certain things to stimulate the production of
desired information. In such a research, the researcher must first provide himself
with a working hypothesis or guess as to the probable results. He then works to
get enough facts (data) to prove or disprove his hypothesis. He then sets up
experimental designs which he thinks will manipulate the persons or the materials
concerned so as to bring forth the desired information. Such research is thus
characterised by the experimenter’s control over the variables under study and his
deliberate manipulation of one of them to study its effects. Empirical research is
appropriate when proof is sought that certain variables affect other variables in
some way. Evidence gathered through experiments or empirical studies is today
considered to be the most powerful support possible for a given hypothesis.
(v) Some Other Types of Research: All other types of research are variations of one
or more of the above stated approaches, based on either the purpose of research,
or the time required to accomplish research, on the environment in which research
is done, or on the basis of some other similar factor. Form the point of view of
time, we can think of research either as one-time research or longitudinal
research. In the former case the research is confined to a single time-period,
whereas in the latter case the research is carried on over several time-periods.

Page | 204
 Research can be field-setting research or laboratory research or simulation
research, depending upon the environment in which it is to be carried out.
Research can as well be understood as clinical or diagnostic research. Such
research follow case-study methods or indepth approaches to reach the basic
causal relations. Such studies usually go deep into the causes of things or events
that interest us, using very small samples and very deep probing data gathering
devices. The research may be exploratory or it may be formalized. The objective
of exploratory research is the development of hypotheses rather than their testing,
whereas formalized research studies are those with substantial structure and with
specific hypotheses to be tested. Historical research is that which utilizes
historical sources like documents, remains, etc. to study events or ideas of the
past, including the philosophy of persons and groups at any remote point of time.
Research can also be classified as conclusion-oriented and decision-oriented.
While doing conclusion-oriented research, a researcher is free to pick up a
problem, redesign the enquiry as he proceeds and is prepared to conceptualize as
he wishes. Decision-oriented research is always for the need of a decision maker
and the researcher in this case is not free to embark upon research according to his
own inclination. Operations research is an example of decision oriented research
since it is a scientific method of providing executive departments with a
quantitative basis for decisions regarding operations under their control.
Research Method and Research Methodology: Research Methods and Research
Methodology are two terms that are often confused as one and the same. Strictly speaking
they are not so and they show differences between them. One of the primary differences
between them is that research methods are the methods by which you conduct research into a
subject or a topic. On the other hand research methodology explains the methods by which
you may proceed with your research. Research methods involve conduct of experiments,
tests, surveys and the like. On the other hand research methodology involves the learning of
the various techniques that can be used in the conduct of research and in the conduct of tests,
experiments, surveys and critical studies. This is the technical difference between the two
terms, namely, research methods and research methodology.
Research methodology is a systematic way to solve a problem. It is a science of studying
how research is to be carried out. Essentially, the procedures by which researchers go about
their work of describing, explaining and predicting phenomena are called research
methodology. It is also defined as the study of methods by which knowledge is gained. Its
aim is to give the work plan of research.
Research methods are the various procedures, schemes, algorithms, etc. used in research. All
the methods used by a researcher during a research study are termed as research methods.
They are essentially planned, scientific and value-neutral. They include theoretical
procedures, experimental studies, numerical schemes, statistical approaches, etc. Research
methods help us collect samples, data and find a solution to a problem. Particularly, scientific
research methods call for explanations based on collected facts, measurements and
observations and not on reasoning alone. They accept only those explanations which can be
verified by experiments.

Page | 205
In short it can be said that research methods aim at finding solutions to research problems.
On the other hand research methodology aims at the employment of the correct procedures to
find out solutions. It is thus interesting to note that research methodology paves the way for
research methods to be conducted properly. Research methodology is the beginning whereas
research methods are the end of any scientific or non-scientific research.
Let us take for example a subject or a topic, namely, ‘employment of figures of speech in
English literature’. In this topic if we are to conduct research, then the research methods that
are involved are study of various works of the different poets and the understanding of the
employment of figures of speech in their works. On the other hand research methodology
pertaining to the topic mentioned above involves the study about the tools of research,
collation of various manuscripts related to the topic, techniques involved in the critical
edition of these manuscripts and the like.
If the subject into which you conduct a research is a scientific subject or topic then the
research methods include experiments, tests, study of various other results of different
experiments performed earlier in relation to the topic or the subject and the like. On the other
hand research methodology pertaining to the scientific topic involves the techniques
regarding how to go about conducting the research, the tools of research, advanced
techniques that can be used in the conduct of the experiments and the like. Any student or
research candidate is supposed to be good at both research methods and research
methodology if he or she is to succeed in his or her attempt at conducting research into a
subject.
Research methods may be understood as all those methods/techniques that are used for
conduction of research. Research methods or techniques, thus, refer to the methods the
researchers use in performing research operations. In other words, all those methods which
are used by the researcher during the course of studying his research problem are termed as
research methods. Since the object of research, particularly the applied research, is to arrive
at a solution for a given problem, the available data and the unknown aspects of the problem
have to be related to each other to make a solution possible. Keeping this in view, research
methods can be put into the following three groups:
1. In the first group we include those methods which are concerned with the collection
of data. These methods will be used where the data already available are not
sufficient to arrive at the required solution;
2. The second group consists of those statistical techniques which are used for
establishing relationships between the data and the unknowns;
3. The third group consists of those methods which are used to evaluate the accuracy of
the results obtained.
Research methods falling in the above stated last two groups are generally taken as the
analytical tools of research.
Research methodology is a way to systematically solve the research problem. It may be
understood as a science of studying how research is done scientifically. In it we study the
various steps that are generally adopted by a researcher in studying his research problem
along with the logic behind them. It is necessary for the researcher to know not only the

Page | 206
research methods/techniques but also the methodology. Researchers not only need to know
how to develop certain indices or tests, how to calculate the mean, the mode, the median or
the standard deviation or chi-square, how to apply particular research techniques, but they
also need to know which of these methods or techniques, are relevant and which are not, and
what would they mean and indicate and why. Researchers also need to understand the
assumptions underlying various techniques and they need to know the criteria by which they
can decide that certain techniques and procedures will be applicable to certain problems and
others will not. All this means that it is necessary for the researcher to design his
methodology for his problem as the same may differ from problem to problem. For example,
an architect, who designs a building, has to consciously evaluate the basis of his decisions,
i.e., he has to evaluate why and on what basis he selects particular size, number and location
of doors, windows and ventilators, uses particular materials and not others and the like.
Similarly, in research the scientist has to expose the research decisions to evaluation before
they are implemented. He has to specify very clearly and precisely what decisions he selects
and why he selects them so that they can be evaluated by others also.
From what has been stated above, we can say that research methodology has many
dimensions and research methods do constitute a part of the research methodology. The
scope of research methodology is wider than that of research methods. Thus, when we talk of
research methodology we not only talk of the research methods but also consider the logic
behind the methods we use in the context of our research study and explain why we are using
a particular method or technique and why we are not using others so that research results are
capable of being evaluated either by the researcher himself or by others.
Doctrinal Legal Research: Doctrinal legal research, as conceived in the legal research
domain, is research ‘about’ what the prevailing state of legal doctrine, legal rule, or legal
principle is. A legal scholar undertaking doctrinal legal research, therefore, takes one or more
legal propositions, principles, rules or doctrines as a starting point and focus of his study. He
‘locates’ such a principle, rule or doctrine in statutory instrument(s), judicial opinions
thereon, discussions thereof in legal treatises, commentaries, textbooks, encyclopedias, legal
periodicals, and debates, if any, that took place at the formative stage of such a rule, doctrine
or proposition. Thereafter, he ‘reads’ them in a holistic manner and makes an ‘analysis’ of
the material as well as of the rules, doctrines and formulates his ‘conclusions’ and writes up
his study.
For example, a legal researcher interested in criminal law might start with proposition
dealing with right against self-incrimination. Research then takes place in the law library,
where he will ‘locate’ the proposition (along with its different contours) and its discussions in
treatises and textbooks on criminal law, criminal procedure, and constitutional law,
encyclopedia and leading legal periodicals. He will also try to locate all relevant judicial
pronouncements of the higher judicial institutions delved into the right against self-
incrimination. He will then ‘read’ these materials and ‘analyze’ them by applying his power
of reasoning and will, premised on analytical perspective and the material used, draw some
conclusions about the proposition. He then will write up his study.
Researcher may, in his study advance a set of formulations, supportive or otherwise, with
convincing ‘reasoning’ about the proposition-the right against self-incrimination. He, in his
research report, may offer an alternative comprehensive paradigm of the doctrine. With a

Page | 207
view to drawing parallels between the doctrine or rule under inquiry, he may also find a
comparable doctrine or rule from other jurisdictions. He may, depending upon ‘objectives’ of
his research, also propose a new formulation of the rule or doctrine, a model statute or a
statutory provision. He may also highlight the purpose and policy of law that exist and may
propose what it ought to be.
Doctrinal legal research, thus, involves: (i) systematic analysis of statutory provisions and of
legal principles involved therein, or derived therefrom, and (ii) logical and rational ordering
of the legal propositions and principles. The researcher gives emphasis on substantive law
rules, doctrines, concepts and judicial pronouncements. He organizes his study around legal
propositions and judicial pronouncements on the legal propositions of the appellate courts,
and other conventional legal materials, such as parliamentary debates, revealing the
legislative intent, policy and history of the rule or doctrine. Classic works of legal scholars on
the law of torts and administrative law do furnish outstanding examples of doctrinal legal
research.
Doctrinal legal research, in addition to analytical one, may be historical or comparative.
Historical legal research, unlike analytical one, deals with the past. It throws light on the past
to understand the present. It explores the circumstances that led to the adoption of the
existing law. It gives a clue to the reasons why a particular provision of law or law was
framed in the form in which now it appears. It also often reveals that a particular existing
provision/law, fully justifiable at the time when it was introduced, is no longer justifiable
because the reasons/circumstances that justified the original inclusion of that provision/law
are no longer valid. While comparative legal research, as evident from its title, involves
comparative study of comparable laws or legal institutions from different jurisdictions. It
exhibits the lessons that can be learnt from each other’s failures and achievements.

Aims
Doctrinal legal research, as stressed earlier, involves rigorous analysis of statutory provisions
and judicial pronouncements thereon. The researcher organizes his study around legal
provisions, principles, concepts or doctrines and judicial statements relating thereto, and/or
reflecting thereon. He not only makes analysis of statutory provisions and of case law, but
also logically and systematically arranges the statutory provisions and judicial
pronouncements to deduce, on legal reasoning and rationale, some legal propositions.
Doctrinal legal research, thus, (i) aims to study case law and statutory law, with a view to
find law, (ii) aims at consistency and certainty of law, (iii) (to some extent) looks into the
purpose and policy of law that exists, and (iv) aims to study legal institutions.
Therefore, doctrinal legal research should not be undermined merely because it revolves
around statutes and judicial decisions. It immensely contributes to the continuity, consistency
and certainty of law. It also initiates further development of legal principles and doctrines.
Doctrinal legal research mandates the legal researcher to ‘locate’ the required apt statutory
provisions and judicial reflections thereon that have bearing on the legal doctrine, concept or
rule under inquiry. Such legislative provisions and judicial decisions constitute the basic data
for a doctrinal legal researcher.

Page | 208
Basic tools
Where can a legal researcher find the required statutes and judicial decisions? He can ‘locate’
the requisite data in the apt statutory materials and case reports. The former refers to, and
includes in it, the relevant Acts of Parliament (along with the amendments made thereto from
time to time); secondary or subordinate legislations (in the form of rules, regulations, orders,
notifications, byelaws, and statutory orders) made thereunder. While the latter, refers to case-
reports that verbatim reproduce cases decided by courts. Statutory material and case reports
constitute primary research tools for doctrinal legal research. However, in addition to these
original sources of data, the researcher may have to look into secondary source materials
such as research articles published in leading legal periodicals, text and reference books on
the subject. He may have also to refer to parliamentary debates and other Government
records and reports for getting further ‘insight’ into the legal principle, doctrine or concept
under inquiry.
The basis tools of a doctrinal legal researcher, thus, are: (i) statutory materials, (ii) case
reports, (iii) standard textbooks and reference books, (iv) legal periodicals, (v) Parliamentary
Debates and Government Reports, and (vi) Micro films and CD-ROM. These tools,
depending upon the nature of information they contain, may be re-categorized into primary
and secondary sources of information. National Gazette and Case Reports fall in the first
category, while the rest fall in the latter.

(i) Statutory materials

Legislative Acts constitute one of the basic tools of doctrinal legal research. However, a
plethora of subsidiary or secondary legislation in the form of rules, regulations, byelaws,
notifications, statutory orders or directives is found in the modern national legal system. In
fact, in a contemporary legal system the quantum of executive legislative instruments
overweighs the primary ones. Further, Acts of Legislature, with a view to coping up with the
changed circumstances and/or social or political perceptions, undergo frequent changes
through amendments. Sometimes, an Act of Parliament, when it, in the opinion of
Legislature, becomes obsolete or redundant, is replaced by another one.
Acts of Legislature as well as amendments thereto are required to publish in (National)
Gazette before they become operative. Instruments of executive legislation are also published
in the Gazette. National Gazette, therefore, constitutes an authentic primary source of statutes
and statutory provisions.
Sometimes, some law publishers publish, with short notes and requisite disclaimer, leading
and frequently referred to statutes. In some jurisdictions, almost all the statutes, with
comprehensive comments, are published in a series of volumes.
Reference to statutes and statutory provisions, invariably with analytical comments, can also
be found in standard textbooks and reference books, including ‘cases and materials’, on the
subject. However, most of the times, these publications, for obvious reasons, do not include
the latest amendments to the statutes and judicial statements thereon. Hence, the researcher
has to look for subsequent legislative changes and latest cases on the matter under inquiry.
The sole reliance on these books may lead to an incomplete and misleading research. Further,

Page | 209
textbooks as well as reference books, owing limitation of space, cover a broad area in the
compressed form. Therefore, some ideas may be left with some cursory remarks by the
authors.
Nevertheless, a researcher working on a relatively new theme is advisable to start with the
textbooks, reference books, and ‘cases and materials’ on the subject. It will also enable him
to acquaint himself with and understand the basic principles and dimensions of the theme or
the subject under investigation. It will also help him to find several other pertinent sources of
study and decided cases, with comments, on the subject.
Sometimes, the researcher may have also to look into the debates that took place on floor of
the House on the draft statute when it was in the making. Reading of Parliamentary Debates
will enable him to get acquainted with the underlying legislative policy of the statute. It will
also reveal the different alternatives suggested on the floor of the House and the reasons for
their acceptance or rejection in the final version of the statute. Such an acquaintance will
undoubtedly lead to a well-reasoned in-depth analysis of the statute. It may also be of worth
exercise for a doctrinal legal researcher to look for (and to have peep therein) a pre-& post-
legislative Reports on the statutes under inquiry. A peep into these reports will divulge
different underlying legislative currents and paradigms and thereby will enable him to have
deeper insight into the legislative and operational facets of the statute(s)/statutory
provision(s) under consideration. Further, a look into Parliamentary Debates and Government
Records may exhibit some hidden or new dimensions of the doctrine or legal principle under
investigation.

(ii) Case reports

In almost all the common law legal systems, judicial decisions of higher courts are published
in Case Reports. A doctrinal legal researcher, therefore, has to look for the apt Case Reports
for laying his hands on the required judicial pronouncements for his analysis. In addition, in
these jurisdictions one finds a number of well-articulated case digests. Case Digests, which
refer to all the reported cases, play a significant role in collecting cases on a particular
subject/topic. They undeniably assist the researcher in ‘locating’ relevant judicial decisions
and grasping quickly the legal principles laid down therein. As mentioned earlier, textbooks
and reference books on the subject contain cases on the statute(s) and statutory provision(s)
under inquiry. But the case law dealt under these books may not be comprehensive and up-
to-date. Authors of the textbooks and reference books may omit cases not considered relevant
by them.
Almost all the legal periodicals published from common law countries invariably devote
some of their pages for ‘Case Comments’ wherein comments by experts on leading cases are
published. Some periodicals also contain a segment on ‘Notes on Cases’ wherein brief but
pertinent comments on, and/or summary of, contemporary leading judicial decisions are
published. A careful look at these pages will help the researcher in identifying apt cases that
deserve his serious attention and analysis in his research.
Further, Annual Survey, publishing a summary of the most important cases and outlining the
consequential development in different branches of law, may also be a significant tool for
finding cases on the identified statutes or statutory provisions. In such a survey, an expert of

Page | 210
repute in the field, not only identifies significant judicial decisions rendered in the field
during the year under survey but also makes their analysis with a view to finding the way in
which they have followed or deviated from the past judicial dicta and judicial reasons given
therefor. Based on such analysis, he also sketches the development, progressive or otherwise,
of the law in the field during the year under survey and predicts future course of
development.

(iii) Legal periodicals

It may also be necessary for a doctrinal legal researcher to know what others have said and
found in the area of his research. Therefore, he is required to look into research articles
published in legal periodicals of repute. Research articles published on the topic/theme of
inquiry are of immense help for a doctrinal legal researcher. A reading of these articles not
only unconsciously inspires him to pursue his inquiry with vigor but also helps him in
crystallizing his ideas that are still imprecise. These articles may expose him to some new
dimensions or aspects of the problem, which he has not been so far able to conceive. It may
also help him in assuring himself that he has not missed anything pertinent from original
sources. Further, he may unconsciously learn the ways of effective persuasion and
presentation of his inquiry. To put simply, it becomes necessary for a legal scholar to know
what other researchers have said on the topic to: (i) seek inspiration, (ii) crystallize his ideas,
(iii) organize his thoughts, and (iv) ensure that he has not missed any original sources. Hence,
legal periodicals become indispensable tools of doctrinal legal research.
However, he may come across a number of legal periodicals with an umpteen number of
research articles written by scholars of repute in the field. Some times, he may feel, rightly
so, that it is impossible for him to go even through the Table of Contents of these legal
periodicals (with numerous issues thereof) to ‘locate’ research articles that are ‘relevant’. He
may carry a feeling of reluctantly sinking, forever, in these voluminous legal periodicals.
However, there are a good number of indexes published by commercial organizations and
academic and professional bodies that help him in ‘locating’ research articles with
comparatively lesser efforts and time. Some of the acclaimed and widely used indexes for
locating articles are:
1. Index to Legal Periodicals- The Index is prepared and published since 1908 by the
American Association of Law Libraries, New York. It indexes various legal
periodicals published in the United States, Canada, Great Britain, Northern Ireland,
Australia and New Zealand. Articles are indexed ‘subject-wise’ as well as ‘author-
wise’.
2. Index to Foreign Legal Periodicals- The index is prepared and published since 1960
by the Institute of Advanced Legal Studies of the University of London, London, in
co-operation with the American Association of Law Libraries, New York. It is
published in three quarterly parts covering the contents of legal literature received
over the period October to June and it is followed by an annual volume cumulating
the first three parts. It indexes articles published in legal periodicals published from
the countries other than the United States, Great Britain, and the countries of the
British Commonwealth whose systems of law have a common law basis. It thus
complements and, to a limited extent, duplicates the Index to Legal Periodicals. It

Page | 211
 gives ‘subject index’, ‘author index’ and ‘book reviews’. It also gives ‘geographical
index’ giving by country, subject and headings used for article mainly concerned with
laws of a country or countries.
3. Index to Periodical Articles Related to Law- This index commenced in 1958. It is
compiled by the librarians of the Yale and Columbia Law Schools. It has coverage of
selective articles published in English throughout the world, which were not covered
by Index to Legal Periodicals and Index to Foreign Legal Periodicals.
4. Index to Indian Legal Periodicals- It is a half-yearly publication of the Indian Law
Institute, New Delhi. Its publication started in 1963. It indexes articles (subject-wise
and author-wise) published in leading legal periodicals published in India including
Yearbooks and other annual publication pertaining to law. It also indexes case
comments and book reviews published in these periodicals.
5. Legal Journals Index- The publication started in 1986 from the UK. It indexes
research articles published in legal periodicals published from almost all the common
law countries.
In addition to these Indexes, a few legal periodicals bring out their own Cumulative Index (of
a certain period). Such a Cumulative Index lists articles, author-wise as well as subject-wise,
published in different issues of the periodical. It also gives index of cases refereed to, and
books reviewed therein. It helps a legal scholar to locate relevant articles published over the
years in the legal periodical.
Bibliographies on certain subjects are also available to a legal researcher. Such
bibliographies also help him in locating research articles, books, and reports on the subject of
his inquiry.
However, a researcher may find an umpteen number of articles published in different
periodicals that deal with or touch upon same, similar or identical themes expositing him, in
a way, to repetitive ideas pertaining to, and explanations of an identical theme, concept or
doctrine. In such a situation, he, with a view to saving his time and energy without
compromising with the need to know ‘comments’ or ‘view points’ of others on the subject of
his inquiry, will have to opt for a few leading articles written by authors of eminence in the
field. A fairly trained researcher will be able to easily identify such articles by merely
looking at the title or reading abstract or conclusion of the research papers and professional
standing of the journal carrying them.
A legal researcher may also gather comments on the statutes/statutory provisions and cases
thereon from standard textbooks and reference books on the subject. However, there is basic
advantage of an article over a textbook and reference book. A research paper, unlike a
textbook or reference book, deals with a specific issue(s) in depth.

Advantages
Doctrinal legal research has a number of advantages to its credit. A few pertinent among
them are outlined here below. First, doctrinal legal research, which basically involves
analysis of legal principles, concepts or doctrines, their logical ordering and systematizing of
legal propositions emerging therefrom, has some practical utility. It provides quick answers
to the problem as the researcher is continuously engaged in the exposition and analysis of

Page | 212
legislation and case-law and the integration of statutory provisions and judicial
pronouncements into a coherent and workable body of doctrine. It provides lawyers, judges
and others with the tools needed to reach decisions on an immense variety of problems,
usually with very limited time at disposal. Empirical research, unlike doctrinal legal research,
takes much more time to draw conclusions. In this connection, the following observation of
Kenneth Culp Davis deserves our attention. He observed:
--- [I]t may be a hundred or several hundred years before we get truly scientific
answers to some of the questions I am trying to explore, and we need to make some
judgments in the meantime. Some of the most useful thinking can be unscientific,
impressionistic, intuitive based on inadequate observation or insufficient data or wild
guesses or imagination. Scientific findings are obviously the long term objective, but
a good many judgments which fall far short of scientific findings are valuable,
respectable and urgently needed.
Secondly, a doctrinal legal researcher, through his analysis, attempts to test the logical
coherence, consistency and technical soundness of a legal proposition or doctrine. His
knitting of legal principles or doctrines, with sound reasoning, may lead to a well-developed
law. In this context, evolution and development of law of torts and of administrative law, for
example, stand as classic testimony of doctrinal legal research.
Thirdly, doctrinal legal research contributes in our ‘understanding’ of ‘law’, legal concept or
doctrine, and legal processes in a better way as it offers logical exposition and analysis of
such a law or a doctrine or legal system. Such an analysis also reveals (in)consistency in, and
(un)certainty of, the law, legal principles or doctrines.
Fourthly, a scholar of law indulged in doctrinal legal research, in a systematic way and with
convincing reasoning, exhibits ‘inbuilt’ ‘loopholes’, ‘gaps’, ‘ambiguities’ or ‘inconsistencies’
in the substantive law inquired into as well as in some of principles or doctrines embodied
therein. He thereby invites the Legislature to plug them through amendments (or to repeal it
or substitute it by another piece of legislation if it is with full of defects or a proved ‘failure’)
so that the law can be more purposive and effective. Such a legislative move, either leading
to amending the law or replacing it by another one, results in the development or
improvement of the law. Further, a comparative analysis of identical legal rules, concepts or
doctrines from different systems of law by a scholar of law gives a further impetus to
improvement of the law, legal concept or doctrine, as the case may be.
Fifthly, a doctrinal legal researcher, through logical ordering and systematizing of legal
propositions that emerged from his analysis and reasoning may initiate a theory in the
concerned field of law. Such a theoretical proposition, in due course of time, may gain
further support from the researcher himself or other researchers working in the field. In other
words, doctrinal legal research helps in theory building.
Sixthly, a doctrinal legal researcher, through his systematic analysis of legal principles,
concepts or doctrines, in the light of judicial statements, may predict ‘future’ of the principle,
concept or doctrine, its probable ‘contents’ and ‘directions’ in which it is likely proceed in
future.

Page | 213
Seventhly, doctrinal legal research provides a sound basis for non-doctrinal legal research.
Socio-legal research requires a strong base of doctrinal legal research. Before a scholar of
law embarks upon non-doctrinal research, it is necessary for him to acquire sufficient
grounding and experience in doctrinal legal research. Unless he understands the legal
doctrines, case law and legal institutions, he can hardly venture into socio-legal research. In
the absence of strong base in doctrinal legal research, non-doctrinal research is bound to be a
futile and infructuous exercise. The utility of non-doctrinal research very much depends upon
the ability of the legal scholar to translate his findings and data into legal doctrines and
concepts. Upendra Baxi, in his monograph captioned ‘Socio-Legal Research in India: A
Programschrift, observes, and rightly so, that ‘law-society research cannot thrive on a weak
infra-structure base of doctrinal type analyses of the authoritative legal materials’. ‘Legal and
policy studies of the state of law’, he further observes, ‘provide not merely an assurance of
sound understanding, but may also hold promise of needed starting-points for sociological
research.’ The reason is obvious. It will be difficult for a legal researcher to venture into
highlighting, through empirical research, operational dimensions of law and legal
institutions, the bottlenecks in their implementation and suggesting solutions to overcome
these defects without having in-depth knowledge of the legal doctrines, case law and legal
institutions. Further, such knowledge is essential for identifying ‘issues’, ‘delimiting areas’ of
his inquiry, formulating apt ‘hypothesis’ for inquiry, and devising appropriate strategies and
tools for collecting relevant data. In the absence of these, the sociological research will be
like a boat without a rudder and a compass, left in the open sea. The whole exercise of the
researcher will be fruitless.

Limitations
Doctrinal legal research, in spite of the above-mentioned strengths, suffers from certain
limitations of worth noting. They are:
First, analysis of the legal principle, doctrine under inquiry, in particular, and of ‘law’ in
general, and the consequential projections of the doctrinal researcher, ultimately, become
‘subjective’ and exhibit his ‘perception’ about the inquired subject-matter. A different
perception of the same legal principle, concept, doctrine or law by another scholar(s) of law,
therefore, cannot be ruled out. In other words, doctrinal legal research, depending upon the
reasoning power and analytical skills of the researcher, may lead to different ‘perceptions’
and ‘projections’ of the same legal fact, concept or doctrine when different scholars of law
analyze it. Thus, different scholars may perceive a legal fact or doctrine differently with
equally convincing logical reasoning. Secondly, a doctrinal legal researcher gathers the
policy from his own experience, authoritative statutory materials, case reports, and his
reflections thereon. His ‘inquiry’ into a legal principle or concept or law, therefore, does not
get any support from social facts or values. His research, undeniably, becomes merely
theoretical and devoid of any social facts. Consequently, his ‘projections’ of law and
‘predictions’ regarding changes in the law are bound to be far from social reality and
inadequate.
When law is viewed as an effective instrument of socio-economic transformation, it becomes
necessary to see it (law) in the light of social facts and values. It also needs to be studied and
analyzed in terms of its actual working and consequences and not as it stands in the book.
Obviously, doctrinal legal research, in this context, becomes inadequate and inapt. Further,

Page | 214
contemporary social-goal-oriented law requires pre-legislative study to know and appreciate
the extra-legal factors that have played significant role, positive or negative, in shaping the
legal rule or doctrine in the present form. Doctrinal legal research, by its nature, does not
bring such pre-legislative issues in its ambit. It is also not fully equipped for such a study.
Thirdly, doctrinal legal research does not involve a study of the factors that lie outside law or
legal system but have directly or indirectly influenced the operation of the law, a legal rule,
concept or doctrine. Sometimes the prevailing stakes and prejudices of a dominant social
group may hamper the law’s operation and success. A study of such extra-legal factors,
interests and prejudices, therefore, becomes necessary for understanding their role and
contribution in making the law or doctrine effective, less effective or ineffective in its
operation. Such a study also becomes desirable, rather inevitable, to devise appropriate
legislative or policy-oriented measures to do away with the factors that are desisting/have
desisted the law to be effective or to minimize their adverse effects on the law’s performance.
Doctrinal legal research practically overlooks the need to study these factors.
Fourthly, a doctrinal legal researcher puts his sole reliance on, and gives prominence to,
traditional sources of law and judicial pronouncements of appellate courts. The actual
practice and attitude of lower courts and of administrative agencies with quasi-judicial
powers, whose judgments remain unreported, are left unexplored in doctrinal legal research.
A comparative look at the advantages and limitations of doctrinal legal research outlined in
the preceding paragraphs may create a serious doubt about utility and relevance of doctrinal
legal research. However, doctrinal legal research should not be undermined simply because
it, through analysis of statutory provisions and cases, revolves around legal principles and
doctrines, and it is, therefore, devoid of ‘social facts’ or is far away from ‘social reality’.
Doctrinal legal research, contrary to this general belief, is in fact involves consideration of
social value, social policy and the social utility of law. A scholar of law observed:
It is naive to think that the task of a doctrinal researcher is merely mechanical - a
simple application of a clear precedent or statutory provision to the problem in hand,
or dry deductive logic to solve a new problem. He may look for his value premises in
the statutory provisions, cases, history in his own rationality and meaning of justice.
He knows that there are several alternative solutions to a problem (even this applies
to a lawyer who is arguing a case before a court or an administrative authority) and
that he has to adopt one which achieves the best interests of the society. The judges
always unconsciously or without admitting think of the social utility of their
decisions, ---.
Conventional legal materials contain a lot of data with which a doctrinal legal researcher may
make a significant contribution to our understanding of legal processes. The basic need is for
a conception of research that, even if it is confined to traditional legal materials, ask the most
meaningful questions that such materials may help answer. A doctrinal legal researcher,
through careful content analysis, qualitative and quantitative, of case reports and other
conventional legal source materials, can, inter alia, identify the processes through which a
doctrine is formed, the values preferred and articulated thereunder, and its underlying policy
and goal. Conventional legal materials are also of some help in tracing the actual
consequences adopting a doctrine.

Page | 215
Non-Doctrinal Legal Research
However, in the recent past, doctrinal legal research has received a severe jolt due to change
in the political philosophy of law from the laissez faire to the welfare state envisaging socio-
economic transformation through law and legal institutions, the consequential new
substantive and functional facets of law, and certain compelling pragmatic considerations
arising from this metamorphosis.
Prominent reasons and arguments stressing the need for inquiry into social facets of law are:
First, the emergence of sociological jurisprudence and its underlying philosophy assigned
‘law’ the task of ‘social engineering’. Almost every modern civilized State perceives ‘law’ as
an active instrument of socio-economic justice and thereby a vehicle of social engineering.
This new operational facet of law has inevitably led to enactment of enormous statutes with
specified socio-economic drives. In fact, we have come to live in an age is of social welfare
laws. Secondly, in the light of such a role assigned to law, it is argued, it becomes necessary
to look into the ‘factors’ or ‘interests’ of the Legislature that play significant role in setting
the legislative process in motion and in identifying the beneficiaries thereof and the reasons
therefor. These ‘factors’ and ‘interests’ (for putting law in motion for the desired planned
socio-economic change), indicate, rather dictate, ‘framework’ of the law as well reveal the
choices opted by the Legislature when it faced with alternative ‘paths’ towards, or
‘strategies’ for, the intended legislative goal. Thirdly, it becomes necessary to carry out
frequent attitudinal studies of those whose legal position is sought to be modified by a given
law as well as of those who are vested with the power of interpreting and implementing it so
that the Legislature, armed with this feedback, can fulfil its job in a more satisfactory
manner. Fourthly, a number of facts or factors that lie outside a legal system may be
responsible for non-implementation or poor implementation of a given piece of social
legislation. A systematic probe into these factors and their influence on the operation of law,
therefore, becomes necessary to identify these bottlenecks and to design appropriate strategy
to remove them or to minimize their influence on the law so that the law can be made an
effective instrument of socio-economic transformation. Fifthly, there is nearly always a
certain ‘gap’ between actual social behavior and the behavior demanded by the legal norm
and certain ‘tension’ between actual behavior and legally desired behavior. Identification of
the ‘gap’ and ‘tension’ as well as factors responsible therefore becomes necessary for
strengthening potentials of law as a vehicle for socio-economic justice.
This type of research is also known as Behavioural or Empirical Research. t is, thus, stressed
that an investigation into, through empirical data, the operational facets of law intending to
change or mould human attitudes and to bring some socioeconomic transformation in the
society is more important than analyzing law as it exists in the book. Such an inquiry
ostensibly involves research into link between law and other behavioral sciences. Here,
emphasis is not on legal concepts or doctrines but on people, social values and social
institutions. It gives importance to economic and social data rather than legal facts. It
concerns with the impact of the legal process upon people, their values and institutions. Such
a research prominently involves an inquiry into dynamics of law, its social contents, role and
impact of law in the social system.

Page | 216
Aims
In a non-doctrinal legal research, the researcher tries to investigate through empirical data
how law and legal institutions affect or mould human attitudes and what impact on society
they create. He endeavors to look into ‘social face or dimension’ of law and ‘gap’, if any,
between ‘legal idealism’ and ‘social reality’. Non-doctrinal legal research, thus, involves
study of ‘social impact’ of law (existing or proposed) or of ‘social-auditing of law’. The
researcher tries primarily to seek, among other things, answers to: (i) Are laws and legal
institutions serving the needs of society? (ii) Are they suited to the society in which they are
operating? (iii) What forces in society have influenced shaping or re-shaping a particular set
of laws or legal norms? (iv) Are laws properly administered and enforced or do they exist
only in statute books? (v) What are the factors, if any, responsible for poor or non-
implementation of the laws? (vi) What are the factors that influenced the adjudicators (courts
or administrative agencies) in interpreting and administrating the laws? (vii) For whose
benefit a law is enacted, and are they using it? Have the intended ‘legislative targets’
benefited from the law? If not, for what reasons? Where do ‘bottlenecks’ lie? (viii) What has
been impact of the law or legal institutions in changing attitude of the people or molding their
behavior? and what are the social obstacles in realization of the expected behavior or change?
The inquiry, in ultimate analysis, relates to: (i) the legislative processes (inquiring into the
initiation and formalization of law, and the forces, factors or pressure groups that played
significant role in its making and with what objectives), (ii) its social assimilation (involving
an inquiry into its operational facets and the factors that are responsible for making it
dysfunctional), and (iii) its impact on the intended beneficiaries (involving a post-natal study
of the law). Most of non-doctrinal legal research, thus, seeks: (i) to assess the impact of non-
legal factors or events upon legal processes or decisions, or (ii) to find the ‘gap’ between
legal idealism and social reality, or (iii) to identify and appraise the magnitude of the variable
factors influencing the outcome of legal processes and decisions-making, or (iv) to trace the
consequences of the outcome of legal decision making in terms of value gains and
deprivations for litigants, non-litigants, non-legal institutions.
A legal researcher undertaking non-doctrinal legal research takes either some aspects of law
or the people and institutions supposedly regulated by law as the focus of his study. Such a
research undertaking, compared to doctrinal legal research, is much broader and the
questions involved therein for further inquiry are more numerous, the answers of which are
not ordinarily available in conventional legal sources-statutory materials, case reports and
legal periodicals. The researcher is usually required to undertake fieldwork to collect data for
seeking answers to these questions.
However, legal doctrines do not altogether become irrelevant in a non-doctrinal legal
research. They may be included in a non-doctrinal legal study, but if so, they are treated
simply as one of the many variables that may influence decisions, or affect the practices and
attitudes of people, or affect the operation of institutions. In a non-doctrinal legal research
intending to assess the impact of non-legal factors or events upon legal processes or
decisions, legal doctrines may appear either as a response to non-legal events or as a factor
conditioning the impact of non-legal events. If research is aimed at identifying and appraising
factors influencing outcomes, legal doctrine becomes relevant, if at all, simple as one of such
factors.

Page | 217
The distinguishing characteristics of a non-doctrinal legal research, thus, are: (i) it lays down
a different and lesser emphasis upon legal doctrines and concepts, (ii) it seeks answers to a
variety of broader questions, (iii) it is not anchored exclusively to appellate case reports and
other traditional legal sources for its data, and (iv) it invariably involves the use of research
perspectives, research designs, conceptual frameworks, skills, and training not peculiar to
law trained personnel.
To put it differently, non-doctrinal legal research aims at highlighting the ‘gaps’ that exist
between the ‘law-in-the statute book’ (that is, the image of law projected in the books) and
‘law-in-action’ (that is, the perception it exhibits in reality), and impact of law on the social
behavior. The former discloses the gap between legal idealism and social reality and thereby
it highlights the disjunction that exists between the law-in the books and the law-in-action.
While the latter, highlights the factors that are thwarting the operation of law and thereby
diminishing the attainment of its goal. It helps us to find out the deficiencies in an enactment
and the problem of its implementation. And its impact on the society.

Basic tools
There are several ways of collecting empirical data for social-legal research. The required
information can be collected from the identified respondents in a face-to-face interaction by
administrating them a set pre-determined questions or through sketchy questions prepared by
the respondent. These methods of data collection are known as ‘interview’ and ‘schedule’
respectively. The pre-determined questions can also be administered to the respondents
indirectly through post, fax, emails or any other appropriate methods of communication. This
method of data collection is known as ‘questionnaire’. A socio-legal researcher can also
collect the required information by systematic ‘observation’ of a phenomenon, behavior of
his respondents or institutions that constitute focus of his study or by studying other existing
records that reflect the phenomenon under his inquiry.
The basic tools of data collection for a socio-legal research, thus, are: (i) interview, (ii)
questionnaire, (iii) schedule, (iv) interview guide, (v) observation, participant or non-
participant, and (vi) published or unpublished materials (such as Census Reports, Reports of
Governmental and/or Non-Governmental Agencies, and appropriate literature on sociology
of law). The first four methods of data collection are ‘primary sources’ of empirical data as
they are used in getting the required information ‘directly’ from the respondents. While the
last one is ‘secondary source’ of information as the researcher collects the necessary
information ‘indirectly’ from published and/or unpublished documents. Further, ‘interview’
and ‘schedule’ involve direct ‘oral communication’ between the information-giver
(respondent) and the information-seeker (investigator), while ‘questionnaire’ involves
‘written communication’ between the researcher and his respondents. In ‘observation’, unlike
in interview, schedule and questionnaire, the researcher uses his ‘eyes’, rather than ears, for
collecting data. Hence, it is a ‘visual method’ of data collection.
These tools of data collection are discussed extensively elsewhere in the current volume.
Nevertheless, it will not be out of context and thematically inappropriate to mention them
here, in brief, to put them in the right perspective. Interview, a verbal technique of data
collection, may be structured or unstructured. The former involves the use of a set of pre-
determined questions and highly standardized technique of recording responses thereto. The

Page | 218
latter, as opposed to the former, is characterized with flexibility of approach to questioning
the respondents and lesser-standardized way of recording the responses.

Advantages
Non-doctrinal legal research, as mentioned earlier, seeks answers to a variety of questions
that have bearing on the social-dimension or social-performance of law and its ‘impact’ on
the social behavior. In fact, it concerns with ‘social-auditing of law’. Hence, socio-legal
research has a number of advantages. A few prominent among them are:
First, social-legal research highlights the ‘gaps’ between ‘legislative goals’ and ‘social
reality’ and thereby ‘depicts’ a ‘true picture’ of ‘law-in-action’. It particularly highlights the
‘gap’ in relation to (a) the practice of law enforcers, regulators and adjudicators and (b) the
use or under-use of the law by intended beneficiaries of the law. The regulatory body,
existing or created under the law, vested with the power to monitor and enforce the law, may,
due to some prejudices or apathy towards the ‘beneficiaries’ or sympathy towards their
adversaries, be professionally ‘inactive’ in enforcing the law. It may, for certain reasons,
purposefully fail to enforce it effectively. Non-doctrinal legal research, in this context,
highlights the ‘reasons’ behind making the law ‘symbolic’, less-effective or ineffective. It
also reveals the extent to which the beneficiaries have been (or have not been) able to ‘use’
the law and the ‘reasons’ or ‘factors’ that have desisted/are desisting them from using it.
Through empiricism, non-doctrinal legal research highlights the underlying currents or
factors (like unawareness on part of the beneficiaries, unaffordable cost in seeking the legal
redress, or the fear of further victimization if the legal redress is pursued, and the like) that
have been desisting them from seeking the benefits that the law intended to bestow on them
and to seek legal redress against those who prevent them from doing so. It, thus, exposes the
‘bottlenecks’ in operation of law.
Secondly, non-doctrinal legal research carries significance in the modern welfare state, which
envisages socio-economic transformation through law and thereby perceives law as a means
of achieving socio-economic justice and parity. Through empiricism, socio-legal research
assesses ‘role and contribution of law’ in bringing the intended social consequences. It also
helps us in assessing ‘impact of law’ on the social values, outlook, and attitude towards the
‘change(s)’ contemplated by law under inquiry. It highlights the ‘factors’ that have been
creating ‘impediments’ or posing ‘problems’ for the law in attaining its ‘goal(s)’.
Thirdly, in continuity of what has been said in firstly and secondly above, non-doctrinal legal
research provides an ‘expert advice’ and gives significant feedback to the policy-makers,
Legislature, and Judges for better formulation, enforcement and interpretation of the law.
Fourthly, socio-legal research renders an invaluable help in ‘shaping’ social legislations in
tune with the ‘social engineering’ philosophy of the modern state and in ‘making’ them more
effective instruments of the planned socio-economic transformation.
Limitations
Though socio-legal research has great potentials, yet a few limitations thereof need to
mention here to put its role in the right perspective. A few significant are outlined below.
First, non-doctrinal legal research is extremely time consuming and costly as it requires a lot

Page | 219
of time for collecting the required information from field. Further, it calls for additional
training in designing and employing tools of data collection and entails greater commitments
of time and energy to produce meaningful results, either for policy-makers or theory-
builders.
Secondly, socio-legal research, as explained earlier, needs a strong base of doctrinal legal
research. A legal scholar who is weak in doctrinal legal research cannot handle non-doctrinal
legal research in a meaningful way. It may turn out to be a futile exercise leading to no
significant results.
Thirdly, the basic tools of data collection, namely interview, questionnaire, schedule and
observation, are not simple to employ. They require specialized knowledge and skill from the
stage of planning to execution. Each one of them is bridled with a number of difficulties. A
researcher has to have a sound skill-oriented training in social science research techniques. A
cumulative effect of this limitation of nondoctrinal legal research and of the one mentioned in
secondly is that a well-trained social scientist cannot undertake socio-legal research without
having a strong base in doctrinal legal research. Similarly, a scholar of law, though having a
strong base in legal principles, concepts or doctrines as well as in doctrinal legal research,
cannot venture into non-doctrinal legal research unless he has adequate training in social
science research techniques. In either case, non-doctrinal legal research becomes a mere
nightmare for both of them. A way out, therefore, seems to be an interdisciplinary approach
in investigating legal problems. However, inter-disciplinary legal research has its own
difficulties and limitations.
Fourthly, invariably public opinion, as mentioned earlier, influences contents and framework
of law. Law, most of the times, also seeks to mould and/or change the public opinion, social
value and attitude. In such a situation, sometimes it becomes difficult for a non-doctrinal
legal researcher to, on the basis of sociological data, predict with certainty the ‘course’ or
‘direction’ the law needs to take or follow. Such a prediction involves the maturity of
judgment, intuition, and experience of the researcher. He may fall back to doctrinal legal
research. Nevertheless, sociological research may be of some informal value to the decision-
makers.
Fifthly, sometimes, because of complicated social, political and economic settings and varied
multiple factors a socio-legal researcher may again be thrown back to his own ideas,
prejudices and feelings in furnishing solutions to certain problems.
Sixthly, Socio-legal research becomes inadequate and inapt where the problems are to be
solved and the law is to be developed from case to case (like in administrative law and law of
torts).
May be due to some of these limitations of socio-legal research, coupled with some other
non-conducive situations for non-doctrinal legal research, scholars of law and legal
academia, in the past, have not contributed significantly to non-doctrinal legal research. In
fact, they have, due to different professional priorities, not ventured into socio-legal research.
Future trend seems to be equally bleak. They are not well-trained in the techniques and
nuances of socio-legal research. This lack of training has made them to be away from non-
doctrinal legal research and developed a somewhat professionally unfavorable climate for

Page | 220
socio-legal research. Further, law schools and legal academia lack the aptitude for, and
tradition of, sustaining non-doctrinal legal research. However, in the recent past, most of the
law schools in Asia and Africa have introduced a course on research methodology at both
under-graduate and postgraduate studies of law to induce and train their inmates for
undertaking doctrinal as well as non-doctrinal legal research with vigor.
Doctrinal legal research, for a variety of reasons, plausibly including the inability and
inaptitude of legal scholars to undertake socio-legal research, has been (and is still)
prominent in the field of law. Since its evolution, law has been viewed as a science of norms
and a ‘closed discipline’. Hence, scholars of law have been endeavoring to look into
normative character of ‘law’ and the ‘principles’ involved therein through analysis of
‘statutory’ law. Most of the conventional Law Schools have been (and are) engaged in
training their inmates about the techniques of ‘finding law’ and of ‘reading principles’
involved therein. Hence, scholars of law have been engaging themselves in writing classic
treatises by carefully looking into ‘law’ and ‘legal principles’ and organizing them in a
systematic manner. They have been producing works that are designed for practitioners’-
lawyers and judges- reference. One finds classic treatises that have carefully organized and
analyzed the doctrinal contents of a field of law in abundance. Another equally significant
reason for making doctrinal legal research more prominent in the field of law is the historical
and traditional influence of analytical positivism on law and lasting influence of overseas
(American and British) legal training of academia, lawyers and judges. Analytical positivism
has obsessed the thinking of Bar, Bench and academicians to such an extent that no other
approach (other than doctrinal one) to the understanding of the nature and purpose of law
could really have thrived. This kind of concern tended to identify ‘law’ and ‘a legal order’
only with those elements which are statable in the form of legal propositions.
Further, modern legal systems, particularly from common law system, provide ample scope
for judicial creativity. As our experience tells, statutory language can never be perfect.
Certain ambiguities, gaps and inconsistencies, advertent or inadvertent, are bound to exist in
legal phraseology. A word used in a statute, which may appear to be fairly clear at the time of
enactment of the statute, may acquire vagueness when the occasion of its application to a
case by the court arises. Similarly, the plain statutory language may lose its plainness at the
time of actual controversy because of the human limitation to foresee all the difficulties and
nuances of the problem. Therefore, Legislature, most of the times, deliberately vests judiciary
with certain judicial discretion to meet the ends of ‘justice’. Judiciary, as and when called
upon, to interpret statutes has through judicial process evolved certain standards, legal
‘principles’, ‘doctrines’ and ‘concepts’ that attracted attention of scholars of law and of law
teachers trained ‘overseas’ to make analysis of these principles, concepts and doctrines.
Inter-Relation between Doctrinal and Non-Doctrinal Legal Research: These two broad
types of legal research- doctrinal legal research and non-doctrinal legal research- are
overlapping rather than mutually exclusive. It is difficult to draw a sharp theoretical or
pragmatic line of differentiation between the two.
The distinction between doctrinal and non-doctrinal legal research, if there be one, is one of
emphasis. In doctrinal legal research the main objective is to clarify the law, to take a
position, to give reasons when the law is in conflict, and, perhaps, to suggest methods for
improving the law. It involves the identification of ‘fact’, its underlying policy, and

Page | 221
‘measures’ for improvement. While non-doctrinal legal research gives emphasis on
understanding ‘social dimension’ or ‘social facet’ of law and its ‘impact’ on the ‘social
attitude’. It gives emphasis on ‘social auditing of law’. In doctrinal legal research legal
materials, such as statutes, regulations, and cases, are used, whereas in non-doctrinal legal
research, materials from other fields, like sociology, are sought and used.
Doctrinal legal research and non-doctrinal legal research, thus, are not mutually exclusive.
They compliment each other. Non-doctrinal legal research cannot supplant doctrinal legal
research. It can be a valuable supplement or adjunct to doctrinal legal research. It is now
accepted that theoretical research without any empirical content is hollow and that empirical
work without supporting theory is shallow.

Purpose of Project Work Writing:

• Writing a Project Work report on a specific topic enables the student to improve the
language skills, intellectual enquiry, organizing the matter and analysis.
• “Writing makes an exact man’ (Francis Bacon). In searching and collecting sources
for the topic, choosing relevant information and discording the irrelevant,
understanding and analyzing the subject matter and organizing the same into a final
report, the author passes through a rigorous process of intellectual challenge and
learning.
• The student is expected to move away from total dependence on formal/class room
teaching to elevate oneself to higher learning through self-discipline and critical
intellectual enquiry. Project Work is the best opportunity to channelize one‟s
intellectual energies and enhance research abilities.

Guidelines for Project Work:

1. Each student has to submit one Project Work.
2. The Project work should be a complete original work of the student.
3. One student should work individually on one Project Work. Co-authored or multiple
authored Project Work will not be accepted.
4. Each student has to submit a Project Proposal to the Centre for the purposes for
verification..
5. Each Project Work carries 30 Marks.
6. Format of the Final Project Work:
The research paper should mandatorily contain the following components which will
precede the content / chapters of the research paper / Project Work :

 Cover Page
 Table of Contents / Index
 Table of Cases(if any)

Page | 222
  Table of Statutes(if any)
7. Draft Project Work Proposal: Draft Project Work Proposal should contain the
following components:
a. Introduction: The researcher is required to introduce the subject and the issue
involved in brief.
b. Statement of Problem: The researcher is required to explain the debatable issue
involved in a research topic. Such issues could be single or multiple. A Statement
of Problem is basically a statement that illustrates a clear vision and the overall
method that will be used to solve the problem at hand. Usually used when doing
research, a problem statement discusses any foreseeable tangible or intangible
problems that the researcher may face throughout the course of the Project Work .
c. Research Questions: A research question is an answerable inquiry into a specific
concern or issue. It is the initial step in a Project Work . The 'initial step' means
after you have an idea of what you want to study, the research question is the first
active step in the Project Work .
d. Hypothesis: A research hypothesis is the statement created by researchers when
they speculate upon the outcome of a research or experiment. It is an assumption
with which the researcher begins its research and throughout the Project Work ,
the researcher should seek to prove or disprove the hypothesis.
e. Research Methodology: The method that the researcher adopts to conduct a
research i.e. doctrinal or non-doctrinal or empirical. The researcher has to state
along with the method the justification of using the method in a Project Work .
Please note that the researcher can use a combination of both the methods as long
as the researcher is able to justify the usage of the combined method.
f. Research Plan / Tentative Chapterization: The researcher is required to briefly
state how the researcher intends to go about the research. The researcher is
required to categorize the Project Work into broad chapter and provide a gist of
contents that the researcher intends to include in each chapter.
8. Content of the Final Project Work:
• Chapter I : Final Project Work Proposal (the proposal revised after the
suggestions, if any.)
• Chapter II: Historical Background / Evolution of the issue behind the Project
Work topic
• Chapter III: Nature and Scope of the Project Work Topic. The researcher is
required to elaborately discuss the Project Work topic.
• Chapter IV: Critical Analysis of the Issue involved. The researcher is required
to apply the existing laws to the issue behind the Project Work topic and
identify the regulatory gaps.
• Chapter V: Impact of the regulatory gaps or grey areas so developed and
examine the future prospects of the issue.

Page | 223
 • Chapter VI: Conclusion and Suggestion: Conclusion should summarize your
main arguments and please do not open any new arguments in the conclusion.
Suggestion should be supported with feasible reasons and justifications
Please note that these chapters are a tentative outline in order to give the researcher
an idea. Barring the first and the last chapter, the researcher is free to change the
above mentioned chapterization depending upon the requirement of the research
topic.

9. Table of Contents / Index (in case of case study):

• Chapter I – Introduction
• Chapter II - Facts of the Case
• Chapter III – Issues
• Chapter IV – Judgment
• Chapter V - Reasoning or Analysis
• Chapter VI - Contribution of the Case to Aviation Law/ Maritime Law/ Defence
Law
• Chapter VII – Conclusion
Please Note that Depending on the case, the inclusion of additional elements like
comparative analysis with laws of other state may be useful.
10. Footnotes and Bibliography:
• Footnotes should be placed at the end of the page.
• Bibliography should come at the end of the Project Works.
11. Main Text & Chapter Heading:
• Main Text: Font: Times New Roman, Size: 12, Spacing: 1.5, Alignment:
Justified.
• Chapter Heading: Times New Roman, Size: 12, Spacing 1.15, Alignment:
Justified.
12. Word Limit of Final Project Work: Around 3500-5000 words (12-15 pages)
13. Please provide your own interpretation and analysis of the topics that have been
allotted to you, for your research Project Work.
14. Foreign Words should be italicized. Eg: Sui generis, ipso facto, de facto.
15. Direct Quotations should be used in double quotes (“ ”)
16. Please do not number paragraphs
17. Please do not have additional decorative cover pages pictures or borders.
18. Please do not get emotional in the research papers / Project Work. Your arguments
and opinions should be supported by reasons and justifications.

Page | 224
 FORMAT OF FINAL PROJECT

NAME OF THE COURSE

NAME OF THE PROJECT TITLE

By
Name of the Author
Roll No. or ID No.
Year:… Semester:…

NAME OF THE SUBJECT

Date of Submission

NALSAR UNIVERSITY OF LAW

HYDERABAD

Page | 225
Page | 226
 TABLE OF CONTENTS

CHAPTER I: INTRODUCTION
1.1. Statement of Problem
1.2. Research Questions
1.3. Hypothesis
1.4. Research Methodology
1.5. Research Plan / Tentative Chapterization

CHAPTER II: LAW AND SOCIETY

2.1. Why Do We Need Law In Society?
2.2. How Law And Legal Systems Affect Various Aspects Of Life?
2.3. Do Law Form Backbone of Organised Society?

CHAPTER III: LAW AND ITS RELEVANCE TO SOCIETY

CHAPTER IV: CHANGES IN SOCIETY BRINGS ABOUT CHANGES

IN LAW
CHAPTER V: LIMITATIONS OF LAW IN CREATING SOCIAL
CHANGE

CHAPTER VI: IMPACT OF LAW IN GLOBAL SOCIETY

6.1. Global Warming Solutions Act (GWSA)
6.2. Banning Nuclear Weapons
6.3. International Human Rights Law

CHAPTER VII: CONCLUSION & SUGGESTIONS

7.1. Conclusion
7.2. Suggestions

BIBLIOGRAPHY

Page | 227
 TABLE OF CASES CITED

(In Alphabetical Order)

Eg.
Abinash Chander v. Kamal Devi 5
Bai Devkore v. Irawwa 4,5,7,8,9
Chatterjee v. Maung Mye 46,62
Kalamma v. Veeramma 62

LIST OF STATUTES
(Hierarchy as per the Year, i.e. from old to recent)
Eg.
1. The Indian Aircraft Act 1934
2. The Carriage by Air Act 1972

LIST OF ABBREVIATIONS USED

(In Alphabetical Order) – Formal not cyber abbreviations
AIR All India Reporter
All. Allahabad
All.L.J. Allahabad Law Journal
ALT Andhra Law Times
Bom. Bombay
C.L.J. Calcutta Law Journal
DLT Delhi Law Times

LIST OF TABLES USED

(In Alphabetical Order)
Eg: Statistics, Graphs, etc.

Page | 228
 SAMPLE PROJECT PROPOSAL

Relevance of Competition Law to Aviation Law

Introduction
Competition is a process of economic rivalry between market players to attract customers.
Competition also refers to a situation in a business environment where businesses
independently strive for the patronage of customers in order to achieve their business
objective. Free and fair competition is one of the pillars of an efficient business environment.
In the interest of consumers, and the economy as whole, it is necessary to promote an
environment that facilitates fair competition outcomes in the market, restrain anti-
competitive behaviour and discourage market players from adopting unfair trade practices.
Therefore, competition has become a driving force in the global economy.

Statement of problem
There should be a deep and through study of various factors include extent of barriers to
entry, market share of enterprises individually and as a combination, competition through
imports, level of concentration in the market, degree of countervailing power, availability of
substitutes, likelihood of significant and sustainable increase in prices and profit margins
after merger, likelihood of removal of a vigorous and effective competitor, likelihood of
sustainability of effective competition, nature and extent of vertical integration, possibility of
a failing business, nature and extent of innovation, relative advantage by way of the
contribution to the economic development and whether the benefits of combination or merger
outweigh the adverse impact of the combination.

Research questions
The aviation sector is still a small part of the travel and transportation services sector in
India. The industry has already facing several challenges like inadequate infrastructure which
is most crucial. The high cost of operations, intense competition, and unsustainably low fares
are some reasons behind loses to the industry.
In order to maintain the high growth trajectory of aviation industry in India, it is very
important that competitive forces must continue to operate with in this sector. There are some
characteristics inherent to this sector that is anti-competitive in nature. The Indian aviation
sector has its own competition related issues that need to address.
The Competition Commission of India is therefore another important regulator in the sphere
of the aviation industry and is empowered by the Competition Act, 2002 to ensure that
participants do not indulge in anti-competitive practice.

Research Hypothesis
In order to maintain the high growth trajectory of aviation industry in India, it is very
important that competitive forces must continue to operate with in this sector. There are some
characteristics inherent to this sector that is anti-competitive in nature. The Indian aviation
sector has its own competition related issues that need to address. In India, regulations

Page | 229
governing minimum fleet size; minimum equity requirements; route dispersal guidelines;
minimum fleet & experience requirement of 5 years for International Operations; exclusive
right to National carriers to fly to Gulf Routes etc. are constraining new entry &
strengthening incumbent‘s position. Some need to be addressed by the ministry where as
some must be evaluated by the competition authorities.
For competition authorities across the world, mergers pose a different kind of challenge
altogether. Unlike regular cases of abuse of dominance or anti-competitive agreements which
require an ex-post analysis, merger review is an ex-ante exercise. The question is to find out
whether the combination of such merging parties will ultimately result in the creation of
market power that is likely to be abused either unilaterally or in collusion. This issue needs to
be focused as it directly effects on the growth and development of the aviation industry

Research methodology:
In my assignment I will be combining both the doctrine and non-doctrine methodology. The
research will then extend beyond historical perspectives and incorporate the origins of the
amendments and show the effects on the concerned sector. This will also be used to address
the effects of prior court decisions and how they have applied to amendments made later.
Furthermore, I will examine the role of public opinion and interest groups in influencing
legislation, I will also approach the issue through a jurisdictional perspective and how the
case compares to past precedent and questions of selective incorporation.

Research plan
Introduction
Chapter I: historical background of competition law as well as aviation law.
Chapter II: nature and scope of the law in both the fields i.e., competition law as well as
aviation law.
Chapter III: critical analysis of the problem and research question as well as the required
observation to justify the argument.
Chapter IV: impact of the regulatory gaps or grey areas, developments in the referred sector
and new ideologies.
Chapter V: Conclusion and Suggestion.

Page | 230
 BLUEBOOK (19th ed.)

CITATION FORMAT EXAMPLES (FOR FOOTNOTES)

GENERAL RULES

 Times New Roman, Size 10, 1 line spacing, Justified.

 Add full stop after every footnote.
 Months should be written in abbreviated forms: Jan., Feb., Mar., Apr., May, June,
July, Aug., Sept., Oct., Nov., Dec.
 Tables given at the end of the Bluebook should be referred to for abbreviated forms.
Eg. Abbreviations of geographical terms, periodicals, publishing terms etc.

I. BOOKS

Volume No. (if any) NAME OF AUTHOR, TITLE OF THE BOOK pg. cited
(Editors/Translators Name, edition cited year).

Eg:

 2 FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE

HISTORY OF ENGLISH LAW 205-06 (2d ed. 1911).
 CHARLES DICKENS, BLEAK HOUSE 49-55 (Norman Page ed., Penguin Books
1971) (1853).

Rules & Exceptions

 Follow the font format as has been illustrated above, for e.g. name of author must be
in SMALL CAPS.
 The first name must always be written before the surname.
 For two authors, write both their names separated by ‘&’.
 In case of citing a book that has been edited, write „ed. or „eds. after the name of the
editor. If translated, write trans. after name of translator. If both, then first write
editor’s name and then translator’s name.
 For more than two authors, editors or translators write the name of the author, editor
or translator that appears first followed by “et al.”
 Do not add „p‟ or „pp‟ before the page number. Just write the numerical.
 In case the book is being published by more than one publishing house, write the
name of the publisher cited after the name of the editor in sentence case.

II. JOURNAL ARTICLE

a) For consecutively paginated journals (Where the periodical is organised by volume
and page numbers continue throughout the volume, it is a consecutively paginated
periodical)

Page | 231
Name of Author, Title of Article, Journal volume no. ABBREVIATION OF JOURNAL
Page on which Article Begins, Page Cited (Year).

Eg.

 Charles A. Reich, The New Property, 73 YALE L.J. 733, 737-38 (1964).

Rules & Exceptions

 For two authors, write both their names separated by ‘&’.

 For more than two authors write the name of the author that appears first followed by
“et al.”

b) For non-consecutively paginated journals (works appearing in periodicals that are

separately paginated within each issue)

Name of Author, Title of Article, ABBREVIATION OF JOURNAL, date of issue as appears

in the cover, at first page of work, page cited.

Eg:

 Barbara Ward, Progress for a Small Planet, HARV. BUS. REV., Sept.-Oct. 1979, at
89, 90.

III. MEDIA SOURCES/ARTICLES

Author’s name, Name of Article/ news report, ABBRV. OF NAME OF NEWSPAPER,

Month Date, Year, at pg. no.

Eg.

 Ari L. Goldman, O'Connor Warns Politicians Risk Excommunication over Abortion,

N.Y. TIMES, June 15, 1990, at A1.

IV. WEB SOURCES

(When an authenticated official or exact copy of source is available online, citation can be
made as if to the original print source without any URL info appended.)

Name of the Author, Name of article, INSTITUTIONAL OWNER OF DOMAIN (Month

date, year, time), URL.

Eg:

 Eric Posner, More on Section 7 of the Torture Convention, THE VOLOKH

CONSPIRACY (Jan. 29, 2009, 10:04 AM),
http://www.volokh.com/posts/1233241458.html.

Page | 232
Rules & Exceptions

 Format for time as illustrated.

 Don‟t write available at or at before the URL.
 Write the entire URL as appears in the address bar of the browser, remove hyperlink.

V. CASES

a) U.S. cases:

First Party v. Second Party, Reporter Vol. No., Reporter Abbrv., First Page of Case, Specific
Page Reference (Year).

Eg:

 Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986).

b) Indian cases:

Case name, (year of reporter) Vol No. Reporter Abbreviation, First page (year of decision if
different from year of reporter (India, if not evident from context)

Eg:

 Charan Lal Sahu v Union Carbide, (1989) 1 S.C.C. 674 (India).

Reporters that depart from this format shall be written in their own format.

Eg:

 Jabalpur v. Shukla, A.I.R. 1976 S.C. 1207 (India).

Rules & Exceptions:

 Do not italicise the case name.

 If there are more than one parties, list only the first party.
 Italicise the procedural phrases, for e.g., In re, Ex parte etc.

VI. STATUTES

a) U.S. Law

Official name of act, U.S.C. title number Abbreviation of Code cited, sections symbols and
span of sections containing statute (Date of Code edition cited).

Eg:

Page | 233
  Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. §§ 9601-9675 (2006).

b) U.S. Constitution

Abbreviation of Constitution cited Abbreviation for Amendment No of amendment cited,

section symbol and no. of section cited.

Eg.

 U.S. CONST. amend. XIV, § 2.

 LA. CONST. art. X, pt. IV.

c) Indian Law

Act name, Act No., Acts of Parliament, Year of Volume (India, if not evident from context).

Eg:

 The Copyright (Amendment) Act, 1992, No. 13, Acts of Parliament, 1992 (India).

d) Indian Constitution

Eg:

 INDIA CONST. art. 1, cl. 2.

VII. SHORT FORMS

 DICKENS, supra note 2.

 Reich, supra note 3, at 739.
 Id. at 740.

SOURCE: The Bluebook, A Uniform System of Citation, Nineteenth Edition

Page | 234