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LAW OF CONTRACTS
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LLB (3YDC) I SEMISTER
PAPER I - LAW OF CONTRACTS
CONTENTS
PART - A QUESTIONS
1. What is Contract?
2.. What are the essential elements of a valid contract?
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3. Write a short note on Otter.
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4. Define Acceptance.
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5. Define Consideration.
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27.
6. What is free consent?
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7. Name the contracts which are forbidden by law.
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8. Revocation of proposal and acceptance through different modes.
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9. Explain the doctrine of Privity of contract.
10.What are the wagering contracts?
11.What are the Conditions for the Enforcement of a Contingent Contract?
12.Write about Contingent contracts.
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13.What are void and voidable contracts?
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14.Liquidated damages.
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IS. Write a short note on Novation.
16.Explain the term Rescission.
17.Uberrimae fidei.
I 8. Reciprocal Promises.
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19.Appropriation of payments.
40.
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42.
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PART - B QUESTIONS
20.What are Quasi Contracts?
21.Under which circumstances Quasi contracts apply?
22.Explain the Principle of Quantum Meriut.
23. What are the remedies for the breach of the contract and what are they'?
Explain.
24.What is meant by Duty to mitigate?
25.How a contract is discharged?
26.What is meant by Preventive Relief or Injunction? Write about kinds o f
injunctions.
27.What is a Counter offerand a Cross Offer?
28.Explain in detail about Executory contract and Executed contracts.
29.Minors are incapable of entering into contract? Explain with case law.
30.What are Remote damages? When they can be claimed?
31.What is Doctrine of Frustration and conditions necessary for this
doctrine?
32.What is a standard form of contract?
33.What is appropriation of payments? What are its essential elements?
34.What is Anticipatory Breach of a contract?
35.When an offer is said to be lapsed? Explain.
36. What is a declaratory decree? State the law with regard to declaratory
decree.
37. What is Misrepresentation? Distinguish it from fraud.
38. Discuss the Rule laid down in Hadley and Baxendale.
39. All contracts are agreements but all agreements are not contracts.
Discuss.
40. Accord and satisfaction.
41. Nudum Pactum.
42. Unlawful agreements.
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Law of Contracts
Part A - Answers
1. What is a contract?
Ans: In simple terms, a contract means when two parties put into writing an
agreement which contains certain obligations (promises) which are to be
performed by such parties. and when sllch written agreement becomes
enforceable by law, it becomes a Contract.
Contract Act defines a Contract as "An agreement which is enforceable
by Law". An Agreement is a settlement between two parties, which contains
obligations or promises which both parties need to fulfill. When sllch an
agreement is made binding by Law it becomes a Contract.
Pollock- "Every agreement and promise enforceable by law is a contract".
Now after examining the definitions of contract we can say thatContract = Agreement + Enforceability
Illustration: A contracted with B tor purchase of 10 bags of cement of a certain
quality, for Rs 3,000. In this case, B's promise is to provide A with 10 bags of
cement of that quality only for which A has contracted and A's promise is to
duly pay B Rs.3,OOO.In this case. both have to perform something for the other.
thus it is a case of reciprocal promise.
Charity is not a case of reciprocal promise, because a person doing charity, does
not expect anything in return.
Contracts in India is primarily governed by INDIAN CONTRACT ACT,
1872 ("Contract
Act").!t contains basic elements of a contract and several
general rules which apply to contracts. It does not impose any positive duty on
the parties rather, it states various formalities regarding contracts.
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2.What are the essential elements of a valid contract?
Essentials of a valid contract
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Ans: Section 10 states conditions which are required for a contract to be valid.
~ Offer: Firstly, there must be an offer from either party, without an Offer a
contract cannot arise.
~ Acceptance of the offer: Secondly, the Offer must be accepted by the
person to whom it was intended or made.
Example: An offer made by A to B has to be accepted by B only.
~ Consensus ad-idem":Consensus
ad-idem means meeting of minds. It
means that parties to the contract should accept the terms ofthecontract in
the "same sense". Thus parties to the contract must have the same
understanding of the terms of the contract.
Example: 1 A contracted with B to purchase rice. Now A wanted a special
type of rice, however, B thought of it to be normal rice. In this case,
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Example:2 if A contracted with B to buy stocks. What A meant was stocks
in a company, whereas B understood it to he his livestock (farm animals).
In this case, the understanding was not in a similar sense.
~ Competancy:Parties must be competent to contract. They must be legally
capable to contract i.e., the parties must he mentally sound, they must be
rna j ors etc.
~ Consideration:
For the performance of promises there must be a
consideration. Something to be given in return for performance of
promise from both parties to the contract.
y Lawful object :The object of the contract must be lawful.
~ According to section 10, consideration and object of the contract should
be lawful and is an essential element ora contract.
Accordingly, Section 23 defines Unlawful consideration and object is one
which is either,
• forbidden by law;
• or is of such a nature, that if permitted. then it would defeat the provisions
oflaw;
• or the purpose of the contract is fraudulent:
• or involves or implies giving injury or damage to someone or to someones
property;
• or the court considers it as immoral or against public policy.
If a contract shows any of these elements then it is unlawful and void U/S 23.
Free consent :According to section 10 of contract act 1872 " agreements are
contracts if they are made by free consent".
Section 14 of the contract 1872 act defined free consent as consent not
given under coercion, undue influence, fraud, misrepresentation and mistake.
3. Write a short note on Offer.
Ans: An offer is the first thing for the formation of a contract. A person making
an offer is called an "offeror"/"proposer" and a person to whom the offer is
made called an "Offeree" / "proposee",
According to section2(a) of the Contract act, an offer/proposal is:
.An offer simply means willingness, to do something (a positive act) or to
not do something (a negative act). It must be noted that if an offer is not
made, to get the acceptance of the other party, then it cannot be construed as
an offer under the Contract Act.
.An offer must be made with the object of getting a favourable response from
the intended acceptor. Thus, there may be 'positive' or 'negative'
acts which the proposer may be willing to do.
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Essential elements of an Offer
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• Offer must be communicated to the offeree. Mode of communication could
be any but should be reasonable. An offer must be clear, specific and
capable of being understood.
• An offer should be lawful and not to do something illegal.
• Offer can be express or implied. An express otter is one which is made in
words, whereas an implied offer is in fcrrcd Irorn the conduct of the offeror.
• An offer can be revoked at any time he lore its acceptance by the intended
acceptor.
• An offer must be made with an intention to get acceptance thereto.
• A promise consists of an offer and an acceptance of that offer. Once these
two conditions are satisfied there is a prom ise and when both parties have to
perform their respective promises.
• Contract act defines an Offerer as "Prom isor" and the person who is
accepting the offer as "Promisee".
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Offer and Invitation to offer
There is a difference between an offer and an invitation to offer. An invitation
for others to make an offer is not an offer within the meaning of "Offer" under
the Indian Contract Act 1872.
Sometimes a person may not make an offer t<?sell his goods, but makes
a statement or conducts in such a way, to make other persons make an offer to
him. This is an invitation to offer.
Such situations generally include advertisements, tenders, goods on
display, auction etc. In case of an auction, when the auctioneer starts the bid by
quoting a price, it is basically for others to make him an offer with the amount
in addition to the minimum price, which the auctioneer had announced.
Similarly, when a company floats tender for construction of a building, it
basically is asking others (builders) to make them an offer by quoting the price
of construction.
This is because an offer is an offer to buy and there is no offer to sell.
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4. Define Acceptance.
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Ans: The second step in the formation of a contract is the acceptance of the
offer.Acceptance means when the person to whom the offer was made, has
given his assent to such offer- Section 2(b) of Contract Act.
Once the offer is accepted and such acceptance has been communicated,
to the offeror, the parties are bound by their respective promises. Just like an
offer, even an acceptance can be revoked before the communication of
acceptance reaches the offerer.
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Performance of an offer, in ignorance of the said offer is not an
acceptance. Therefore an act done, amounting to acceptance, but acceptor being
unaware of the offer, it is not a valid acceptance .
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In the case of La 1man Shukla v GauriDutt (1913) the defendant's boy went
missing, accordingly, his servant-Plaintiff was sent to search for the boy, in the
meantime a missing poster was released by the defendant. promising to pay a
certain sum. to the person who finds the boy. The servant. unaware of such an
offer succeeded to find the boy. Once he knew about such an offer he asked for
the consideration. but the same was denied. The court ruled in favour of the
Defendant. by holding that Plaintiff was ignorant or an offer and thus the
performance of the promise does not amount 10 acceptance.
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Essential elements of an acceptance
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1. Acceptance should be absolute and unconditional. and must be made when
the offer is subsisting.
2. Acceptance to offer can be expressed or implied i.e. conducting in a
manner which implies acceptance.
Eg: I f a watch is taken by someone to test it. be fore making the final
purchase and the person pledges it, this amounts to an implied
acceptance.
3. Acceptance must be communicated in a reasonable manner, or, if any,
must be communicated through a reasonable medium. like telephone,
mail, WhatsApp message, automatic reply to emails. if there are no
exceptions
4. Traditionally acceptance was made through posts or letters. If an
acceptance is intended to be made through a post, it will be deemed
accepted when the letter of acceptance is posted and it is out of the reach
of the acceptor.
However with the advent of instant communication like telephone, offer is
accepted, when the offeror hears the acceptance on his part.
5. Acceptance or communication of acceptance bya third person or a
stranger is not a valid acceptance. If a contract mentions a specific
person to whom acceptance is to be communicated, then acceptance shall
be deemed to be valid if it is made to that person only.
6. Acceptance can be either in express words or can be implied i.e. by
conducting in a reasonable manner which signifies acceptance.
Eg. A offered B to sell his watch for Rs.IOOO .and lends it. for his
satisfaction. B, in turn, pledges it or further sells it. The act of B is conduct
amounting to a valid acceptance.
Eg: In a contract of sale, acceptance is when an act by the purchaser does
an act which is in consistent with the ownership of the seller.
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5. Define Consideration.
Ans: Consideration means value given for the performance of a promise. It
need not necessarily be money, however, it should be something which has been
agreed by the parties and has some value.
Usually, a contract without consideration is void, however, exceptions to this
rule are specified in Section 25 of the Contract Act.
Essential elements for valid Consideration
I. It has to be at the desire of the promisor. which means that it should
originate from the promisor out of his own accord and not at the instance
of a third party.
2. Accordingly, the performance of a legal duty is thus not a consideration.
3. Consideration could be:
• Past Consideration, when the promisor has received consideration
before the date of the performance of the contract by any party. Eg.
Advance money paid.
• Present Consideration, when consideration is provided immediately
when the contract is made or executed. Thus it is also
called "executed consideration.
• Future Consideration, when consideration is paid after making of the
contract. In consideration
given for 'construction
contracts'Constructed building is given after the execution of the contract.
4. It must not be illegal or void or impossible to perform.
5. Illusionary Consideration can be tangible or intangible. Consideration is
not void just because it is inadequate, provided it was at the desire of the
promisor.
6. It must be real, not Performance of service like teaching, labour.
6. What is free consent?
Ans: According to section 10 of the contract act, a contract is valid if it was
entered into by free consent of the parties. Section 14 of the contract act defined
free consent as consent not given under coercion, undue influence, fraud,
misrepresentation and mistake.
• Coercion (Section 15)
Section 15 says that acts amounting to coercion must be to the prejudice of
the other. It means that the act of coercion must be harmful to the other
person.
Eg: A husband threatens his wife that he will commit suicide unless she
releases a property. This amounts to coercion to the prejudice of the wife.
• Similarly threatening to divorce and because of this she is made to sign a
contract also amounts to coercion.
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According to section 16 if consent has been obtained by a person who is in a
dominant position compared to the other person, then it is undue influence.
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Example: an employer-employee relationship,
lawyer - Client relationship etc.
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• Fraud:Fraud
includes concealing any fact by the party who is aware of
the existence of such fact.According to Sec 17 Fraud can be committed
either by one contracting party or by the agent of any contracting party.
Eg: Making a statement that a product is of good quality, despite knowing
that the product is of substandard quality ..
• Misrepresentation: When false statements are innocently made without
the intention to deceive. then it amounts to misrepresentation.
• Not qualified to contract: It means a person not permitted to enter into a
contract. Eg alien enemy, convicts of a crime, an insolvent person,unsound
person. Minor etc.
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LAW OF CONTRACTS
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Conclusion: These are the most basic and elementary principles of a contract,
which are to be fulfilled. In valid contract, both parties who involve in the
contract are legally bound to fulfill their obligations or promises which are
within the contract.
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7. Name the contracts which are forbidden by law.
Ans: A contract is forbidden by law if it is either against any law, both
substantive and procedural.
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E.g. An agreement to sell liquor without a licence, despite the law mandating to
have a licence.
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In a particular case the Plaintiff owner of a bar and having the licence to
sell liquor transferred the management of the bar and liquor sale to the
defendant who had no such licence. The court held that transferring business
and sale of liquor to a person who didn't have the license, was prohibited by law
and thus cannot be enforced.
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Section 26 to 30 deals with such contracts. There are those contacts which have
been expressly declared void by the Contract Act.
I.ed
• Agreements restricting a marriage (section 26)
There is only one exception to section 26 i.e. an agreement in restraint of
marriage of a minor. This is because marriage with a minor is out rightly
against Public policy and against section 10 of the Contract Act.
• Agreements restricting trade (section 27)
Section 27 says that every agreement by which a person is restrained from
exercising a lawful profession, trade or business of any kind, is to that extent
void.
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Agreements in restraint of proceedings (section 28)
According to Section 28(a) a contract prevents a party to initiate a suit
against the other party, then that agreement is void. However, an agreement
which provides for arbitration when a dispute arises, then that clause is not
void.
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Wagering agreements section 30: A wagering agreement is one whose
outcome is based on a future uncertain event and upon the happening of that
uncertain event one party will gain and the other party will lose and the loser
shall pay the winner a sum of money or any other stake is void.
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It must be noted that an insurance contract is not a wagering contract, an
insurance contract falls under Contingent contracts.
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8. Revocation of proposal and acceptance through different modes.
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Ans: Revocation means "cancellation" and it is a type 0 f remedy for buyers
when the buyer accepts a nonconforming good from the se ller.
Section 5 of the Indian Contract Act, lays down the rules of revocation of
proposals and acceptances i.e. A proposal may be revoked at any time before
the communication of its acceptance is complete as against the proposer, but not
afterwards. An acceptance may be revoked at any time before the
communication of the acceptance is complete as against the acceptor, but not
afterwards.
Eg: Jay proposes, by a letter sent by a post, to sell his house to Veeru and Veeru
accepts the proposal. In this case, Jay may revoke his proposal at any time
before or at the moment when Veeru posts his letter of acceptance, but not
afterwards. And Veeru may revoke his acceptance to any time before or at the
moment when Veeru posts his letter of acceptance, but not afterwards.
Modes of Revocation
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Section 6 of the Indian Contract Act, 1872 provides various modes of
revocation which are as follows:
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Notice of revocation: In this Case, revocation has to be made before the
acceptance. The communication of revocation to be effective must reach
the offeree before he mails his acceptance and makes it out of his power. A
revocation is effective only when it is brought to the mind of the person to
whom the offer is made.
In Ramlalsao
Gupta v. .M.E.R. Malak, unfortunately the letter of
revocation was reached at wrong address and earlier it was being sent by fax.
The court held that the same to be of no effect.
In Alfred Schonlank & Anr. V. MuthunayanaChetti,
the defendant
offered the plaintiff a sale of indigo proposal and also told him that within eight
days he can reply to the proposal. The defendant revoked the offer on the fourth
day on the other hand plaintiff on the fifth day accepted the offer. The court
held that in case there is no consideration for the promise to keep offer open for
a certain time then its nothing but a bare promise only and at the same time
these acceptance was of no use in the eyes oflaws.
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~ Lapse of time: Where an offer says that it shall remain open for acceptance
up to a certain date, it has to be accepted within that date. It has been
suggested by the Calcutta High Court that in such a case it is enough if the
acceptor has "posted the acceptance before the stipulated time", even if it
reaches the offerer after the stipulated date.
• Where an offer was to last until the end of March and on 28th March,
telegram for the acceptance of offer was sent by the offeree hut the same
was received by the offerer on 30th March. The court he ld that the
acceptance was val id.
• Where no time is specified within which the offer should be accepted it is a
, settled principle that the offer must be accepted within a reasonable time .
.,. By failure to accept condition precedent: Where some preconditions are
there for offer before the acceptance is made, it lapses if acceptance is made
without fulfillment of the particular condition precedent. In the case of State
of West Bengal v. Mahendra Chandra Das, a salt lake was offered by
way of lease with the condition that on deposit of a sum of money within a
specified period but the defendant even after the expiration 0 f the stipulated
time didn't deposit the sum of money. The court held that this entailed
cancellation of the allotment.
~ By death or insanity of offerer: With the death of the offeror. an offer will
not be terminated necessarily and the same will open until the offeree
comes to know the death of the offeror.
Conclusion :Thus, The Indian Contract Act, 1872 not only provide
provisions to enter into the contract but it also provide provisions for the
termination of a contract which is entered into by the parties. The
provisions and rules of revocation are laid down under section 5 and modes
of revocation in section 6 of this respective Act. Overall revocation means
"taking back" or it is called as a way of termination of an offer.
9. Explain the doctrine of Privity of contract
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Ans: The law does not allow a stranger to file a suit on the contract. This right is
available only to a person who is a party to the contract and is called Doctrine of
Privity of Contract.
Example:Peter has borrowed some money from John. Peter owns a property
and decides to sell it to Arjun. Arjun promises to pay John on behalf of Peter.
However, if Arjun fails to pay, then John cannot sue since Arjun is a
stranger to the contract. It is important to note that the Doctrine of Privity has
exceptions which allow a stranger to enforce a claim as given below.
Exceptions to the Doctrine of Privity of Contract:
A stranger or a person who is not a party to a contract can sue on a contract in the
following cases:
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Trust: If a contract is made between the trustee of a trust and another party, then
the beneficiary of the trust can sue by enforcing his right under the trust, even ifhe
is a stranger to the contract.
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Eg: Arjuns father had an illegitimate son, Ravi. Before he died, he put Arjun in
possession of his estate with a condition that Arjun would pay Ravi an amount of
Rs 500.000 and transfer half of the estate in Ravi's name, once he hecomes 21
years old.
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After attaining that age when Ravi didn't receive the money and
asked Arjun about it. he denied giving him his share. Ravi filed a suit for
recovery. The Court held that a trust was formed with Ravi as the beneficiary for a
certain amount and share of the estate. Hence, Ravi had the right to sue upon the
contract between Arj un and his father, even though he was not a party to it.
Family Settlement: If a contract is made under a family arrangement to benefit a
stranger (person not a party to the contract), then the stranger can sue in his own
right as a beneficiary of the contract.
Example: Peter promised Nancy's father that he would marry Nancy else would
pay Rs. 50,000 as damages. Eventually, he married someone else, thereby
breaching the contract. Nancy filed a case against Peter which was held by the
Court since the contract was a family arrangement with Nancy as the beneficiary.
Example: Ritika was living in a Hindu Undivided Family (HUF). The family had
made a provision tor her marriage. Eventually, the family went through a partition
and Ritika filed a suit to claim her marriage expenses. The Court held the case
because Ritika was the beneficiary of the provision despite being a stranger to the
contract.
Assignment of a Contract:If a contract is made for the benefit of a person, then
he can sue upon the contract even though he is not a party to the agreement. It is
important to note here that nominees of a life insurance policy do not have this
right.
Acknowledgment or Estoppel: If a contract requires that a party pays a certain
amount to a third-party and he/she acknowledges it, then it becomes a binding
obligation for the party to pay the third-party. The acknowledgment can also be
implied.
Eg :Peter gives Rs. 1,000 to John to pay Arjun. John acknowledges the receipt of
funds to be paid to Arjun. However, he fails to pay him. Arjun can sue John for
recovery of the amount.
A Covenant Running with the Land : When a person purchases a piece of land
with the notice that the owner of the land will be bound by all duties and liabilities
affecting the land, then he can sue upon a contract between the previous landowner and a settler even if he was not a party to the contract.
Example :Peter owned a piece of land which he sold to John under a covenant
that a certain part of the land will be maintained as a public park. John abided by
the covenant and eventually sold the land to Arjun. Though Arjun was aware of
the covenant, he built a house in the specific plot. When Peter came to know of it,
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party to the contract, the Court held him responsible for violating the covenant.
Contract through an Agent: Ir a person enters into a contract through an agent,
where the agent acts within the scope of his authority and in the name of the
person (principal).
Example :Vidya purchases a property from Krishna. Rajiv is already living in the
property on a three-year lease. As a part of the purchase agreement, Vidya takes
over the lease. There are some leakages in the house that Krishna promises to fix,
as a part of the contract. A fe" months go by and the leakages are still not fixed.
Rajiv calls Vidya, the new owner, and she says that it is Krishna's responsibility .
Can Rajiv file a suit for repairs against Krishna?
Since there is no contract between Rajiv and Krishna about repairing
the leakage, ifhe files a suit it will probably be dismissed by the Court. Krishna
had agreed tocarry out the repairs in his purchase.
Raj iv, on the other hand, can sue Vidya for not performing her obligations
according to the lease contract.
10. What are the wagering contracts?
Ans: Wagering Contract is one in which there are two necessary parties
between which the contract has been made and wherein, the first party promises
to pay a certain sum of money to the second party on the happening of a
particular event in the future and the second party agrees to pay to the first party
on not happening .
Example 1: A and B agree with each other that if it rains on Tuesday, A will pay
Rs. 100 to Band ifit does not rain on Tuesday, B will pay A Rs. 100.
Essentials of a Wagering agreement:
1. Dependence
on Uncertain Event :One of the important essentials of a
wagering agreement is that it must depend upon an uncertain event. Event may
be past, present or future, but the parties must be unaware of its future or the
time of its results or the time of its happening.
Example: A football match between team A and team B is to start on 30th June
2016. C and D enter into an agreement that C will pay Rs 500 to D if team A
wins, and if team B wins, D will pay Rs 500 to C. This is a wagering agreement
and is void.
2. Mutual Chance of Gain or Loss:Another element of wagering agreement is
that each party to the agreement should stand to win or lose as per the result of
the uncertain event.
Example :A cricket match is to start at Hyderabad between India and South
Africa. If India wins the match,A agrees to pay B Rs .500, whereas if South
Africa wins the match,B agrees to pay Rs. 500 to A. This is a wagering
.fit,
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LAW OF CONTR/\CTS
agreement. In this case, each party has the chances to win or lose. Here the gain
of one party will be the loss of the other and vice versa.
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Ans:
3. No Other Interest in the Event: Neither party should have any interest in
happening or non-happening of the event other than the sum he will win or lose.
If either party has some other interest other than the sum he will win or lose. it
will not be a wager.
Example: A, a owner of a house. insures his house against fire with GIC. A has
to pay an Insurance premium or Rs.50 per month as per the terms of contract. If
the house is destroyed by tire. GIC will pay the actual amount of loss suffered
by him. Here A has interest in his house. Further on thehappening of the event
i.e. fire, A will not get anything. Hence it is not a wager.
4. No Control over the Event: The parties to the contract should not have any
control over the happening of the event one way or the other. If one party has
the events in his hands, the transaction will not be a wager.
Example:A and B enter into an agreement that if A resigns his job. B will pay
him Rs 500 to A and A will pay Rs 500 to B if he does not resign his job.Here
A has the event under his control. Hence it is not a wager.
Exceptions:
The following transactions are not wagers:
l. Contracts ofInsurance are not wagers
Insurance contracts are contracts of indemnity. They are entered into, to
safeguard the interest of one party to the contract. In this contract, the insured
has insurable interest in the property or life Hence, it is not a wager. Wager
means a bet. It is a game of chance where the probability of winning or losing is
uncertain. The chance of either winning or losing is wholly dependent on an
uncertain event.
Parties involved in a wagering contract mutually agree upon the nature of
the agreement that either one will win. Each party stands equally to win or lose
the bet. The chance of gain or the risk of loss is not one sided.
The essence of a wagering contract is that neither of the parties should have any
interest in the contract other than the sum, which he will win or lose. Parties to a
wagering contract focus mainly on the profit or loss they earn.
Example 1: A and B agree with each other that A will pay Rs.I00 to B, if it
rains on Tuesday. B will pay A Rs 100 if it will not rain on Tuesday. Such an
agreement is a wagering agreement and hence is void.
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Example 2: There is an agreement between A and B which provides that if
Indian Cricket Team beats Pakistan Cricket Team, A will pay Rs 1,000 and if
Pakistan Cricket Team beats Indian Cricket Team, B will pay Rs 10. The
agreement is a wager agreement.
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11. What are the Conditions for the Enforcement of a Contingent
Contract?
Ans: There are certain essential conditions lor the performance of a contingent
contract. These are also different types of contingent contracts .
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• The contract is contingent on the happening of an event- The contract is
not enforceable if the event does not happen.
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• The contract is contingent on the non-happening of an event- In case of
a contingent contract based on the non-occurrence of an uncertain future
event, the promisor is liable for his performance if the event does not
happen. In case the specified event takes place, the contract becomes void.
• The contract is contingent on the conduct of a person whose action makes
fulfilling of the condition impossible.
Example: A promises to pay ten thousand rupees to B if he marries C. In
case C marries D, then the event of B marrying C is rendered impossible. A
divorce between C and D or the death of D is possible later and only. in
such a case, the contract will become valid. Otherwise, the contract
becomes void.
• The contract is contingent on the happening of the event within a fixed
time.
• The contract is contingent on the non-happening of the event within a
fixed time.
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Rules for the Contingent Contract:
In the Indian Contract Act, sections 32 to 36 define some rules for the
enforcement of contingent contracts between parties. These rules are
mentioned below.
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1. Contracts
contingent on the occurrence of an event: A contingent
contract is usually based on the occurrence of some uncertain events. In
these cases, the promisor is liable to do or not to do something when that
event occurs. However, the law cannot enforce the contract until the
occurrence of the event. If the occurrence of the event becomes impossible
due to any reason, then the contingent contract becomes void.
2. Contracts contingent when the event does not occur: A contingent
contract can also be based on a non-happening event. In this case, the
promisor will do or not do something when the event does not occur.
Contrary to the above rule, the contingent contract becomes void when the
event takes place.
3. When a living person does something to make the occurrence of the
event impossible
As per section 32 of the Indian Contract Act, if the contract is contingent
depending on the actions of a person, then the occurrence of the event
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becomes impossible when that person does something to make the event
impossible to happen.
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4. Contracts Contingent when the event occurs within a Specific Time
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In some contingent contracts. a party promises to do or not do something on
the occurrence of an uncertain event within a specific time period. The
contract becomes void when the event does not occur or the time period is
over.
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]2. Write about Contingent contracts.
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enforce
Ans: Under Section 31 of The Contract Act 1872, contingent contracts are
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defined as follows: "If two or more parties enter into a contract to do or not do
something, if an event which is collateral to the contract does or does not happen,
then it is a contingent contract".
Insurance contracts, indemnity contracts. and guarantee contracts are some
examples of contingent contracts.
Example: Peter is a private insurer and enters into a contract with John for fire
insurance of John's house. According to the terms, Peter agrees to pay John an
amount of Rs 5 lakh if his house is burnt against an annual premium of Rs 5,000.
This is a contingent contract.
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Here, the burning of the house is neither a performance promised as a part
of the contract nor a consideration. Peter's obligation arises only when the
collateral event occurs.
Illustr
Essentials of Contingent Contracts
• Depends on happening or non-happening of a certain event: The contract
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is contingent on the happening or the non-happening of a certain. These said
events can be precedent or subsequent, this will not matter
for example: Peter promises to pay John Rs 5,000 if the Rajdhani Express
reaches Delhi on time. This is a contingent event.
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• The event should be collateral to the contract: It is important that the
how a
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34
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event should not be a part of the contract. It cannot be the performance
promised or a hi for a promise.
Example: Peter enters into a contract with John and promises to deliver 5
television sets to him. John promises to pay him Rs 75,000 upon delivery.
This is normal contract.
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Where as Peter enters into a contract with John and promises to deliver 5
television sets to him if Brazil wins the FIFA. This is a contingent contract
since Peter's obligation arises only when Brazil wins the Cup which is a
collateral event.
• The event should not be a mere will of the promisor:
The event cannot be
a wish of the promisor.
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For example: Ashok promises to pay Rahul Rs 50,000 ifhe leaves Mumbai
for Dubai on August 30, 2018. This is a contingent contract. Going to Dubai
can be within Raul's will but is not merely his will.
• The event should be uncertain : If the event is sure to happen, then the
contract is due to be performed. This is not a contingent contract. The event
should be uncertain.
Example: Ram promises to pay GopalRs 500 if it rains in Mumbai in the
month of July 2018. This is not a contingent contract because in July rains are
almost a certainty in Mumbai.
Enforcement of Contingent Contracts
Sections 32 - 36 of the Indian Contract Act, 1872. list certain rules for the
enforcement of a contingent contract.
Rule 1 -Contingent contracts on the happening of an event impossible :If
the happening of the event becomes impossible, then the contingent contract is
void. This rule is specified in Section 32 of the Indian Contract Act, 1872.
Illustration :Peter promises to pay John Rs 50.000 if he can marry Julia, the
prettiest girl in the neighborhood. This is a contingent contract. Unfortunately,
Julia dies in a car accident. Since the happening of the event is no longer possible,
the contract is void.
Rule 2 - Contingent contracts on an Event not happening :A contingent
contract might be based on the non-happening of an uncertain future event. In
such cases, the promisor is liable to do or not to do something if the event does not
happen. If that event happens, then the contingent contract is void. This rule is
specified in Section 33 of the Indian Contract Act, 1872.
Illustration : David promises to pay John Rs 50,000 if the ship named Titanic
which leaves on a dangerous mission does not return. This is a contingent
contract. This contract is enforceable by law if the ship sinks making its return
impossible. On the other hand, if the ship returns, then the contract is void.
Rule 3 - Contingent contracts on the conduct of a living person who does
something to make the event or conduct as impossible of happening :Section
34 of the Indian Contract Act, 1872 states that if a contract is a contingent upon
how a person will act at a future time, then the event is considered impossible
when the person does anything which makes it impossible for the event to happen.
Illustration: David promises to pay John Rs 5,000 if he marries Julia. However,
Julia marries Oliver. Julia's act thus renders the event of John marrying her
impossible.
Rule 4- Contingent contracts on an Event happening within a Specific
Time :There can be a contingent contract wherein a party promises to do or not
do something if a future uncertain event happens within a fixed time. Such a
contract is void if the event does not happen and the time lapses. It is also void if
before the time fixed, the happening of the event becomes impossible. This rule is
specified in Section 35 of the Indian Contract Act, 1872.
.
Example: David promises to pay John Rs 5,000 if the ship named Titanic which
leaves on a dangerous mission returns before June 01, 2019. This contract is
JB SERIES
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LA\N OF COrHRACTS
enforceable by law if the ship returns within the fixed time. On the other hand, if
the ship sinks, then the contract is void.
Rule 5 -Contingent
Time
Contract
on an Event not happening
within a Specific
Contingent contracts might be based on the non-happening of an uncertain future
event within a fixed time. In such cases, the promisor is liable to do or not do
something if the event does not happen \\ ithin the said time. Also, if it becomes
certa in that the event will not happen be lore the time has expired, then it can be
enforced by law. This rule is speci fied in Section 35 of the Indian Contract Act
1872.
Example: Peter promises to pay John Rs S.OOO if the ship named Titanic which
leaves on a dangerous mission does not return before June 01, 2019. This contract
is enforceable by law if the ship does not return within the fixed time. Also, if the
ship sinks or is burnt, the contract is en forced by law since the return is not
possible.
Rule 6- Contingent contracts on an Impossible Event :If a contingent
contract is based on the happening or non-happening of an impossible event, then
such a contract is void. This rule is specified in Section 36 of the Indian Contract
Act 1872.
Example: David promises to pay Paul Rs 50,000 if the sun rises in the west the
next morning. This contract is void since the happening of the event is impossible.
13.What are void and voidable
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contracts?
Ans: Section 2(g) of the Indian Contract Act, 1872, states that contracts or
agreements that are not enforceable by law are known as void contracts. When
there is no agreement existed between the parties, no obligations by either of
the parties have to be fulfilled.
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The grounds for a contract to be rendered void
l.Incompetence :There are many ways in which a contract can become void. If
one party is incompetent, they legally become unable to agree to a contract. This
can include one of the people entering into a contract while being incapacitated
or unable to make a proper judgement.
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2. Inclusion of an unlawful object or consideration:
The contract can also be
considered void if an unlawful object or consideration is involved in the
agreement.
•
3. Impossibility of performance
: This Occurs when any aspect of the
contract becomes impossible to carry out by one of the parties.
Example: If A enters into a contract with B to smuggle contraband items into a
city, then such agreement will not be enforceable under the law. This is because
the subject matter of the contract is illegal and opposed to public policy.
Voidable contracts:
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Section 2(i) of the Indian Contract Act, 1872 defines voidable agreements as
those which are valid as long as one of the parties or both the parties can decide
to void their agreement. Mostly, cases involving a voidable contract relate to a
situation where there was a lack of free consent from one of the parties.
Therefore, if the party accepts the terms of the contract. it remains valid, and if
they don't. then the contract between them ceases to exist.
The basis for deciding whether a contract is voidable at the option of either of
the parties depends on factors such as coercion. misrepresentation, undue
influence. and so 011. Since it's at the option of one of the parties, the aggrieved
party gets to decide whether or not to make the contract void.
For example: A holds B at gunpoint and asks her to sell him her house at an
extremely lo« price, and B does so accordingly, tearing for her life. In this
situation, B was coerced into an agreement by A, and thus her consent was not
freely obtained. Therefore, she can choose to void the contract on this basis .
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14. Liquidated
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tract
Ans: Liquidated Damages means the amount that a contracting party agrees to
pay the other party for breaching the agreement.
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).ible.
A liquidated damages clause specifies a predetermined amount of money that
must be paid as damages for failure to perform under a contract. The amount of
the liquidated damages is supposed to be the parties' best estimate at the time
they sign the contract of the damages that would be caused by a breach.
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While liquidated damages provisions can have advantages, they are not
always enforceable. If the predetermined amount of damages ends up grossly
disproportionate to the actual harm suffered, courts will refuse to enforce the
provision on the grounds that it is a penalty instead of an estimate of actual
damages.
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When Will a Liquidated Damages Clause be Enforceable?
To be enforceable, a liquidated damages clause should meet the following
criteria.
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To be enforceable, the damages should be either uncertain or difficult to
quantify at the time the contract is entered into.
The amount is reasonable and not a penalty. If the amount of the
liquidated damages is grossly disproportionate to the actual harm
incurred, a court will likely find it is a penalty or punishment and will not
enforce the provision.
Benefits of a Liquidated Damages Clause
• liquidated damages clauses have certain benefits. They are
• They establish some predictability and can act as a type of insurance
against the cost of a breach.
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20
LA W OF CONTRACTS
•
Both parties have the advantage of being able to weigh the cost of
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performance against the cost of breach.
• The suffered party never has to prove actual damages, which can be a
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time consuming and difficult task.
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This clause gives both parties the opportunity to settle on an amount that
thcy think is fair instead of leaving this decision to the courts.
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15. Write a short note on Novation.
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Ans: Novation is the act of replacing a legitimate existing contract with a new
contract. where the transfer i,smutually agreed by both parties concerned.
cr-it
Novation takes place
existing one between the
rescinded in consideration
terms between one of the
They are:
when either a new contract is substituted for an
same parties, or, a contract between two parties is
of a new contract being entered into on the same
parties and a third party. Novation is of two types.
• A novation involving a change of parties
• A novation involving the substitution of the new contract in the place of old
Conditions
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• Novation can happen only to an already existing contract.
• Novation can happen only with the consent of the parties.
Change of Parties Section 62 of contract Act 1872.
Ans:
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Illustration: A owes money to B under a contract. It is agreed between A, B
and C, that B shall henceforth accept C as his debtor, instead of A. The old debt
of A to B is at the end, and a new debt from C to B has been contracted. If A is
a debtor and the creditor agrees to accept B in his place as the debtor. Now the
original contract between the creditor B and debtor A is cancelled.
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Effect of the Novation:
Gt.;
The effect of a novation is extinction of the original contract, and its substitution
with a new contract, under which the same rights and obligations in future are to
be enjoyed and performed by different parties. And the outgoing party (A) will
be released from all liabilities under the contract.
Substitution of New Agreement
• l'
When the parties to a contract agree to substitute a new contract for it, the
original contract is discharged and need not be performed. In other words, it
means that if the new contract changes the heart of the contract or the root of the
primary contract only then it will be considered Novation.
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I ,A\IIJ (IF CONTRACTS
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So the question arises what happens if the heart of the contract is not
changed but only minor changes are made. Any minor change to the contract
with the consent of both parties is called Material alteration to the contract
and it is legally binding on both the parties.
Case law Nagendra Kumar Brijraj Singh v Hindustan Salts Ltd,
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In the above case the defendants advertised that there were vacancies in their
company at a certain salary. The petitioner got selected for the job. The day he
joined he was offered the job at a lesser pay scale. He consented to this new
contract which offered him lesser pay than what was advertised. I Ie later sued
the defendants for the advertised pay.
The court quashed this claim and said that since the plaintiff agreed
to the new contract which offered lesser pay the contract had been novated and
hence it is valid. Pay scale is the heart of the contract and changes to that
novates ( makes new contract) the contract. Hence defendants were held not
liable.
In another case ofJuggilalKamlapat v N.V. Internationale, the Calcutta High
Court also held that "For novation to take effect, modification to the contract
must go to the root of the original contract and change its essential character".
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16. Explain the term Rescission.
Ans: Rescission is one of the modes of discharging a contract/ terminating a
contract .Rescission is a remedy made available when the underlying basis for
making a contract is fundamentally tainted. The contract can be rescinded, at
the option of the affected party. The remedy of rescission means that an entire
contract is set aside.
In contract law, rescission is an equitable remedy which allows a
contractual party to cancel the contract. Parties may rescind if they are the
victims of a vitiating factor, such as misrepresentation, mistake, duress, or
undue influence. Rescission is the unwinding of a transaction. This is done to
bring the parties, as far as possible, back to the position in which they were
before they entered into a contract.
Grounds to Rescind
• Misrepresentation:
Whether innocent,
negligent
Rescission
for
misrepresentation applies in cases where a party relied on a statement by the
other party to enter the contract, and the statement was not true.
• Law of mistake: when one or both the parties made a relevant mistake of
law for making a contract.
• Bribery and corruption
The outcome of rescission is:
• Whatever was done by the parties by making the contract is reversed
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LAW OF CONTRACTS
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• The parties are put back in the position they would have been in, as if the
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contract never even been made. That's the status quo ante
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When a contract is rescinded, the courts may order For a contract where f'J:
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ownership of physical property was transferred from one party to another, to be
returned to the original owner.
Bars to Rescission
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For the remedy of rescission to be available:
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• the. contracting party seeking the remedy must not have affirmed the
contract
pers
• restitutio in integrum must be substantially possible: both sides of the
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transaction must be able to be undone ..
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• a bona fide purchaser for value without notice must not have taken an
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interest in property which would be affected by the rescission
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If those bars to rescission have not been satisfied, rescission should be available
as a remedy for the causes of action to which it applies as a remedy.
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17. Uberrimae
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fidei.
Ans: It means "utmost good faith" in Latin. It requires parties to certain
contracts to exercise the highest standard of full disclosure of any relevant
conditions, circumstances or risks to their counter parties. According to this
principle, the insurance contract must be signed by both parties (i.e. insurer and
insured) in an absolute good faith or belief or trust. The person getting insured
must willingly disclose and surrender to the insurer his complete true
information regarding the subject matter of insurance. The insurer's liability gets
void (i.e. legally revoked or cancelled) if any facts, about the subject matter of
insurance are either omitted, hidden, falsified, distorted or presented in a wrong
manner by the insured.
Thus the insured must reveal the exact nature and potential of
the risks that he transfers to the insurer, while at the same time the insurer must
make sure that the potential contract fits the needs of, and benefits, of the
insured.
The principles underlying this rule were stated by Lord Mansfield in the
leading and often quoted case of Carter v Boehm
The principle of Uberrirnaefidei
applies to all types of insurance contracts.
LIC v. G.M.Channabsernrna,
(AIR 1991 SC 392) - In a landmark decision the
SC has held that the onus of proving that the policy holder has failed to disclose
information on material facts lies on the corporation.
It is the fundamental principle of insurance law that utmost good
faith must be observed by the contracting parties and good faith forbids either
party from non-disclosure of the facts which the parties know.
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22
L!\\AJ OF COI'JTRACTS
~-----------------------------------------------
r_CTS
In contract law, the implied covenant of good faith and fair
dealing is a general presumption that the parties to a contract will deal with
each other honestly, fairly, and in good faith so as to not destroy the right of the
other party to receive the benefit of contract.
In Criminal law - Indian Penal Code, "good faith" is defined
under section 52 as Nothing is said to be done or ; believed in good faith which
is done or believed without due care and attention.
:*he
•
~_here
1Ito be
•
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18. Reciprocal Promises.
Ans: Reciprocal Promise is a promise when someone expresses his willingness
to do (or not to do) something, he said to make a proposal. When the other
person (to whom the proposal is made) accepts the proposal. the proposal
becomes a promise. Such promises that form an agreement arc called
Reciprocal Promises.
Section 2(f) of the Indian Contract Act, 1982 talks about what are reciprocal
promises. Reciprocal promises are which form a part of the consideration.
Types of Reciprocal Promises
Mutual and independent: It states that the two promises of the parties are
independent of each other and they do not have to rely on each other for
performance.
Illustration: There is a contract where A will give chocolates to Band B will
give Pokemon cards to A.A can fulfill his promise even if B does not give him
the pokemon cards i.e- the absence of Pokernon cards does not make the
performance of his promise impossible.
The same goes for B. Thus while the acts are binding, they are mutually
exclusive and are thus independent of each other.
Conditional :When the performance is dependent upon the prior performance
of the other party. If the first party fails to perform his promise, then it will be
impossible for the second party to perform his side of the contract.
Illustration: if A promises to give money to B, if B promises to buys Maggi
for A. If A defaults, i.e- he fails to pay B, then it will be impossible for B to
hold up his side of the contract as he won't be able to buy the Maggi if A does
not pay him. Thus, this type of contract is considered a conditional contract.
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Concurrent
Here, parties promise to do acts that have to be performed simultaneously. A
party will be exempted from doing their promise if the other party is not ready
or willing to do their promise. Here 'readiness' means financial abilities and
'willingness' is perceived through the action of the party.
Illustration : P is supplying coats to R. P will only supply the coats if R
financially can buy and is willing to buy, and R will only pay ifP is willing to
sell and has the goods ( coats) to sell.
I_n the
·.s.
i.nthe
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'SERIES
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23
LAW OF CONTHAllS
19. Appropriation
of payments.
Ans: Appropriation means' application' of payments. In case of a creditor and a
debtor, Section 59 to 61 lay down certain rules regarding the appropriation of
payments. When a debtor pays an amount to the creditor, the creditor is to take
note of these sections before applying the payment to a particular debt. because
the creditor would be inclined to appropriate the payments to the debt which is
not likely to be realized easily.
Essential elements:
•
When money is paid. it is applied according to the express will of the payer
and not the rece iver.
•
If the party to whom the money is offered does not agree to apply it
according to the express will of the party offering it, he must refuse it and
stand upon the rights which the law gives him.
• Appropriation is therefore. a primary right of a debtor
• Appropriation rules apply only in case of several and distinct debts.
• Appropriation do not apply where there is only one debt, though payable by
installments.
•
Sections 59 to 61 lay down three rules regarding appropriation of payments
based on English law.
Theyare:
•
Where payment of debt to be discharged is indicated: when a debtor
owed several debts to one person. (Sec.59): Debtor may express his
intentions expressly or impliedly under the circumstances. If there is no
express intimation by the debtor, but from the circumstances, it is implied
that the debtor intended appropriation to a particular debt, the debtor's
intentions must be followed, if the money is accept
•
•
Where payment of debt to be discharged is not indicated: (Sec.60): If a
debtor does not exercise his right, the creditor has the right to appropriate
the payment to any lawful debt though barred by the law of limitation. It is
a settled law that a creditor is entitled to adjust the debts from any security
in the creditor's custody. The time barred debt remains a debt even if the
remedy to recover it is barred.
Where the debtor does not intimate and the creditor fails to
appropriate: (Sec.61):Where neither party makes any appropriation and if
the debts are of equal standing, the payment shall be applied in discharge of
each proportionately.
24
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24
iJTRACTS
LAW OF CONTRACTS
Part -B Answers
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20. What are Quasi Contracts?
Ans: A quasi contract is a contract that is created by a court order, not by an
•
agreement made by the parties to the contract.
There are cases where the law implies a promise and imposes obligations
on one party while conferring rights to the other even when the basic elements of a
contract are not present. These promises are not legal contracts, but the Court
recognizes them -as relations resembling a contract and enforces them like a
contract.
"tand
These promises/ relations are Quasi contracts. These obligations can also
arise due to different social relationships.
The core principles behind a Quasi Contract are justice, equity and good
conscience. It is based on the maxim: "No man must grow rich out of another
;,
t_c payer
•
•
•
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)table
persons'loss."
Example: Peter and Oliver enter a contract under which Peter agrees to deliver a
by
payments
basket of fruits at Oliver's residence and Oliver promises to pay Rs 1,500 after
consuming all the fruits. However, Peter erroneously delivers a basket of fruits at
John's residence instead of Olivers. When John gets home he assumes that
the fruit basket is a birthday gift and consumes them.
ator
Although there is no contract between Peter and John, the Court treats this as a
Quasi-contract and orders John to either return the basket of fruits or pay Peter.
~'no
_lied
tor s
Features of a Quasi Contract
I•.:
.
1. It is usually a right to money and is generally (not always) to a liquated
sum of money
2. The right is not an outcome of an agreement but is imposed by law.
3. The right is not available against everyone in the world but only against a
specific person(s). Hence it resembles a contractual right.
Section 71 - Responsibility of Finder of Goods
If a person finds goods that belong to someone else and takes them into his
custody, then he has to adhere to the following responsibilities:
1. Take care ofthe goods as a person of regular prudence
2. No right to appropriate the goods
3. Restore the goods to the owner (if found)
Example :Peter owns a flower shop. Olivia visits him to buy a bouquet but
forgets her purse in the shop. Unfortunately, there are no documents in the purse
to help ascertain her identity. Peter leaves the purse on the checkout counter
assuming that she would return to take it.
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John, an assistant at Peter's shop finds the purse lying on the counter
and puts it in a drawer without informing Peter. He finished his shift and goes
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JB SERIES
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LAW Of- lUN I KACfS
home. When Olivia returns looking for her purse, Peter can't find it. He is liable
for compensation since he did not take care of the purse which any prudent man
would have done.
Section 72 - Money paid by Mistake or Under Coercion
If a person receives money or goods by mistake or under coercion, then he is
liable to repay or return it.
Example. Peter misunderstands the terms of the lease and pays
municipal tax erroneously. After he realizes his mistake, he approached the
municipal authorities for reimbursement. He is entitled to be reimbursed since
he had paid the money by mistake.
Similarly, money paid by coercion which includes oppression, extortion or any
such means, is recoverable.
21. Under which circumstances Quasi contracts apply?
Ans: As per Sections 68 -72 of the Indian Contract Act, 1872there are five
circumstances under which a Quasi contract applies .They are
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).- Section 68 - Necessaries Supplied to Persons Incapable of Contracting
: If Peter supplies necessaries suited to the condition in life of John
((lunatic) who is incapable to enter into a contract with the Peter ,then he
(supplier) can get reimbursement from the property of the incapable
person. The same thing applies in case of minor also. This is termed as a
Quasi contract and Peter is entitled to reimbursement from John's property
However, to establish his claim, Peter needs to prove two things:
• John is a lunatic.
• The goods supplied were necessary for John at the time they were sold/
supplied.
).- Section 69 - Payment by an Interested Person: If a person pays the
money on someone else's behalf which the other person is bound by law to
pay, then he is entitled to reimbursement by the other person.
Example: If the owner of land fails to pay tax to government, if the lease
holder pays the tax on behalf of his owner, then the tenant is entitled to
reimbursement by the owner.
).- Section 70 - Obligation of Person enjoying the benefits of a NonGratuitous Act: Imagine a person lawfully doing something or delivering
something to someone without the intention of doing so gratuitously and the
other person enjoying the benefits of the act done or goods delivered. In such
a case, the other person is liable to pay compensation to the former for the
act, or goods received. This compensation can be in money or the other
person can, if possible, restore the thing done or delivered.
However, the plaintiff must prove that:
• The act that is done or thing delivered was lawful
• He did not do so gratuitously
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26
LP.'.'VOF CONTRt~.CTS
CTS
• The other person enjoyed the benefits
~ Section 71 - Responsibility of Finder of Goods: If a person finds goods
that belong to someone else and takes them into his custody, then he has to
adhere to the following responsibilities:
• Take care of the goods as a person of regular prudence
• No right to appropriate the goods
• Restore the goods to the owner (if found)
• Peter owns a flower shop. Olivia visits him to buy a bouquet but forgets her
purse in the shop. Unfortunately, there are no documents in the purse to hclp
ascertain her identity. Peter leaves the purse on the checkout counter
assuming that she would return to take it.
• john. an assistant at Peter's shop finds the purse lying on the counter and
puts it in a drawer without informing Peter. He finished his shift and goes
home. When Olivia returns looking for her purse, Peter can't find it. He is
liable for compensation since he did not take care of the purse which any
prudent man would have done.
I'" Section 72 - Money paid by Mistake or Under Coercion:
Ifa person
receives money or goods by mistake or under coercion, then he is liable to
repay or return it.
Example: Peter misunderstands the terms of the lease and pays
municipal tax erroneously. After he realizes his mistake, he approached the
municipal authorities for reimbursement. He is entitled to be reimbursed
since he had paid the money by mistake.
• Similarly, money paid by coercion which includes oppression, extortion or
any such means, is recoverable .
sold/
22. Explain the Principle of Quantum
As the
biJaw to
tM lease
nlWled to
eN
a onl.ering
y and the
such
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t_ other
fa
•
•
•
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Meriut.
Ans: It means, payment in proportion to the amount of work done. Normally
one cannot claim performance from another unless one has performed his
obligation in full. However in some cases, anyone who has performed some
work under a contract can claim remuneration for the work which he has
already done.
When parties enter into a contract there is a possibility for the breach of the
contract and breach of a contract can happen due to many reasons. For any
breach of a contract to happen, it is necessary that the remedies should also be
made or should be given by any Court. Out of five remedies which are available
to the aggrieved party, one is a suit upon quantum meruit.
Quantum meruit involves cases where someone gets a benefit while the
other party gets nothing. In contracts, this refers to the benefit or enrichment
which one party receives as a result of the other party's actions.
JB SERIES
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LAW OF CONTRACTS
In other words, it means that the other party who has received the services
is unjustly benefited and must return it to the party who provided such benefit.
For example, 'S' is the daughter and 'M' is the father. They entered into an
agreement where 'M' asked'S' to provide medical care for him while he was
sick. In return, 'M' agreed not to write a will and agreed to give his estate to'S'
after he dies with an intent to give her a fair portion for the services rendered.
However. 'M' soon died, leaving all of the estates for his brother and nothing
for ·S'. Here 'M' was unjustly enriched as he received the services but in return
.S' received nothing.
In this example, 'S' seeks to recover a portion of "M's" estate by
claiming the remedy of quantum meruit. This principle is based upon the idea
that recovery should be granted to one party where they have not received the
value tor the services they rendered or when another party was unfairly and
unjustly enriched.
Conclusion :After a proper analysis of the remedy of quantum meruit, it is clear
that the law requires it to be fair and reasonable. The theory supports equality of
the parties and helps to ensure that if a person provides a service or a good, then
he should receive the benefit of the contract and in corollary, if that person
receives nothing, then that person can avail the remedy by filing a suit
upon quantum meruit.
23. What are the remedies for the breach of the contract? And what are
they? Explain.
Ans: The Indian Contract Act lays out all the provisions for the performance of a
contract. It also contains the provisions in case of breach of contract by either
party.
Remedies for Breach of Contract
When a promise or agreement is broken by any of the parties it is called breach of
contract. So when either of the parties does not fulfill their obligation as per the
terms of the contract, it is a breach of contract.
There are a few remedies for breach of contract available to the suffered party.
They are
~ Recession of Contract: When one of the parties to a contract does not fulfill
his obligations, then the other party can rescind the contract and refuse the
performance of his obligations.
• As per section 65 of the Indian Contract Act, the party that rescinds the
contract must restore any benefits he got under the said agreement. And
section 75 states that the party that rescinds the contract is entitled to receive
damages and/or compensation for such a recession.
~ Sue for Damages :Section 73 clearly states that the party who has suffered,
since the other party has broken promises, can claim compensation for loss or
damages caused to them in the normal course of business.
There are two types of damages according to the Contracts Act 1872.
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L/\W OF CONTR!\CTS
ACTS
• Liquidated Damages: Sometimes the parties to a contract will fix the
amount payable in case of a breach. This is known as liquidated damages.
• Unliquidated Damages: Here the amount payable due to the breach of
contract is assessed by the courts or any appropriate authorities.
4. Sue for Specific Performance: If any of the parties fails to perform the
contract. the court may order them to do so. This is a decree of specific
performance and is granted instead of damages.
lwervlces
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24. What is meant by Duty to mitigate?
. '.tate
by
)~he idea
·wed the
1
rly and
Ans: Mitigation in law is the principle that a party who has suffered loss from
a tort or breach of contract has to take reasonable action to minimize the amount
of the loss suffered.
!
•
Eg: A tenant who signs an agreement to rent a house for a year, but moves out
after only one month and stops paying rent. The landlord may be able to sue the
tenant for breach of contract:
, it is clear
.lityof
~d, then
h.person
l~ a suit
.at
t.•
However. the landlord must mitigate damages by making a reasonable attempt
to find a replacement tenant for the remaining year. The landlord may not
simply let the house lie empty for eleven months and then sue the tenant for
eleven months' rent
are
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Example:
A builder is contracted to complete a job for Rsl,OO,OOOover a 4
week period (at Rs25,000 per week) by a home owner. After 2 weeks, the home
owner decides to cancel the builder's contract for no valid reason. The builder is
owed Rs 50, OOO.underthe contract. The builder has a right under the contract
to the balance amount Rs50,000. However, the builder has a duty to try to find
another paid job during that two weeks. This is reasonable. The duty to mitigate
is common sense. If you suffer losses, you do what you ever can to minimise it.
jteach of ~
When does the duty tomigate arise?
.per the .~
It arises , only if you claim damages from another. If you are claiming
'"
damages, you do not need to show that you mitigated your losses. It only
party.
becomes an issue if the party you are suing claims you did not mitigate your
0'
losses. They may do this to limit the amount of damages they owe you.
fulfill ~
refuse the :r
25. How a contract is discharged?
tel
•
!~nds the
~t.
And
llreceive
leuffered,
for loss or
•
•
Ans: The discharge of a contract happens when the obligations created by a
contract on one party or all parties involved come to an end. There are many
ways in which a contract is discharged.
• Discharge by Performance:
When the parties to a contract fulfill the
obligations arising under the contract within the time and manner prescribed,
then the contract is to be discharged by performance.
'2.
.JBSERIES
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LA W OF CONTRACTS
Example: David agrees to sell his cycle to John for an amount ofRs 10,000
to be paid by John on the delivery of the cycle. As soon as it is delivered, John
pays the promised amount.
•
Since both the parties to the contract fulfill their obligation arising under the
contract, then it is discharged by performance. Now, discharge by the
performance of a contract can be by:
•
Actual performance:
As shown in the example above. actual performance is
when all the parties to a contract do what they had agreed for under the
contract.
•
Attempted performance:
On the other hand. it is possible that when the
promisor attempts to perform his promise. the promisee refuses to accept it. In
such cases, it is called attempted performance or tender.
• Bilateral Discharge: The contract will be mutually discharged where the
parties agree to release one another from any further obligations existing
from the original contract. The contract is discharged despite the parties
failing to fully or partially discharge all their obligations.
• Accord and Satisfaction: Accord and satisfaction occurs where one party
accords the release of another party, who is in breach of the original
agreement, from its obligations in return for the satisfaction for the
performance of another obligation.
•
Unilateral Discharge: Unilateral Discharge Occurs where one party has
completed its part of the bargain and agrees to release the other party from
its outstanding obligations under the contract. The agreement is only
binding if supported by consideration or made under seal.
•
Discharge by the Impossibility of Performance:
(Doctrine of frustration)
: If it is impossible for any of the parties to the contract to perform their
obligations, then the impossibility of performance leads to a discharge of the
contract. If the impossibility exists from the start, then it is impossibility
ab-initio. However, the impossibility might also arise later due to:
• An unforeseen change in the subject matter.
• Destruction of the subject is essential to the performance.
• The non-existence or non-occurrence of a particular state of things which
was considered a given for the performance of the contract
• A declaration of war
Eg: Paul enters into a contract with John to marry his sister Lucy within one
year. However, Paul meets with an accident and becomes insane. The
impossibility of performance leads to a discharge of the contract.
• Discharge of a Contract by Lapse of Time: The Limitation Act, 1963
prescribes a specified period. If the promisor fails to perform and the
promisee fails to take action within this specified period, then the
latter(promise) cannot seek remedy through law. It discharges the contract
due to the lapse of time.
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1jACTS
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LAW OF CONTRACTS
Example: John takes a loan from Peter and agrees to pay installments every
month for the next five years. However, he does not pay even a single
installment. Peter calls him a few times but then gets busy and takes no
action. Three years later, he approaches the court to help him recover
his money. However, the court rejects his suit since he has crossed the timelimit of three years to recover his debts.
is
hit
• Discharge of a Contract by Operation of Law: A contract can be
discharged by operation of law which includes insolvencv or death of the
promisor.
.n
the
:cept it. In
Discharge by Breach of Contract: If a party to a contract I~lilsto perform his
obligation according to the time and place specified. then he is said to have
committed a breach of contract.
r"nce
•
• Also, if a party repudiates a contract before the agreed time of performance
of a contract, then he is said to have committed an anticipatory breach of
contract.
vhere the
; .isting
Iljarties
In the below both cases, the breach discharges the contract:
1. Actual breach: In the case of an actual breach. the promisee retains his
right of action for damages
).party
original
•
the
,_
has
2. Anticipatory breach:
An anticipatory breach of contract the promisee
cannot file a suit for damages. It also discharges the promisor from
performing his part of the contract
Discharge of a Contract by Remission
l~from
• only
A promisee can waive or remit the performance of promise of a contract, wholly
~!. or in part. He can also extend the time agreed for the perfonnance of the same .
Eg: John owes to Peter 20,000 rupees. Peter repays only (15000) a part of the
sltion)
money he owes to John. However, John agrees to accept it as a final settlement
their fJ of the debt. John's act of remission discharges the contract.
ge of the I
• Discharge by Non-Provisioning
of Facilities: In many contracts, the
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promisee agrees to offer reasonable facilities to the promisor for the
performance of the contract. If the promisee fails to do so, then the promisor
is discharged of all liabilities arising due to non-performance of the contract.
Eg: Jacob agrees to fix John's garage floor provided he keeps his car out for at
IAhich
least 6 hours. Jacob approaches him a few times but John is reluctant to get
~
his car out. John fails to provide reasonable facilities to Peter (an empty
!
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floor). This discharges him of all obligations arising under the contract.
~
it" one ~
• Discharge of a Contract due to the Merger of Rights: In some situations,
ne. The
it is possible that inferior and superior right coincides in the same person. In
such cases, both the rights combine leading to a discharge of the contract
•
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governing the inferior rights.
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Eg: Rihcards rents John's apartment for two years. After one year of the
contract, he offers to buy the property from John, who agrees. They enter
into a sale contract and Richards becomes the owner of the apartment. Here
Peter has two rights;
JB SERIES
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32
LAW OF CONTRACTS
'-'
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Osne accorded by the lease agreement making him the renter and second by the
sale agreement making him the owner.
•
The former being an inferior right merges with the superior one and
discharges the lease contract.
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Novation: Another way to discharge a contract is novation. which simply
means substituting
the old contract for a new one with different
terms. Novation would be used if a new party takes over the responsibilities of
an original party to the contract.
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landrn:
26. What is meant by Preventive Relief or Injunction?
injunctions.
Write about kinds of
Ans: Definition: An injunction is a legal remedy imposed by the court where
one party is refrained from doing something or directed to do a particular thing,
as the case may be. The court's decision is binding and non-compliance can
result in heavy penalties or imprisonment in certain cases.
Requirements of the injunction.
Injunctions are granted when one party seeks an injunction and convinces the
court that not granting it will cause irreparable damage. It is a valid principle in
most jurisdictions. Irreparable damage means that the damage caused cannot be
compensated by money or any other type of payment.
The party must prove that there is no other remedy available and if the
court balances the interests of both parties then the interests lean toward the
party seeking an injunction.
Types of Injunctions
The Specific Relief Act, 1963 section 37 provides two kinds of Injunctions:
1. Perpetual Inunction
2. Temporary Injunction
The section reads as:
• "Temporary injunctions are such as to continue until a specified time, or
until further order of the court and they may be granted at any stage of a
suit, and are regulated by the Code of Civil Procedure, 1'908.
• A perpetual injunctions can only be granted by the decree made at the
hearing and upon the merits of the suit, the defendant is thereby
perpetually enjoined from the assertion of a right, or from the commission
of an act which would be contrary to the rights of the plaintiff'.
Temporary Injunctions features:
• These are also known as Preliminary Injunctions,
• These are invoked as a provisional remedy to prevent any damage to the
subject matter.
• The main purpose of it is to prevent the delusion of the rights of the parties
and to provide immediate reliefwhen needed.
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27.~1
An~
theM
giv~
mat
neg~
UnYe
W~
may!
ma~
...._-------------------
•
•
and
•
ich simply
.ifferent
silities of
•
•
ut kinds of
This category will cover the following cases:
There are no provisions specifically laid down in the Specific Relief Act but it is
governed by the Rule 1 & 2 of Order XXXIX, Civil Procedural Code. 1908,
which reads as follows:
>_where
•
thing,
ce can
•
"A temporary injunction may be granted in the following cases:
\~
~~
"
p
~,
:t
Ii;:
1*.
g
••
unchons:
•
•
• That the defendant threatens to remove or dispose of his property with a
view to defraud his creditors; and
I
i
27.Wbat is a Counter offerand
I
Ans:A counteroffer is a response given to an initial offer. A counteroffer means
the original offer was rejected and replaced with another one. The counteroffer
gives the original offeror three options: accept the counteroffer, reject it, or
make another offer.
J
~he
• That the defendant threatens to dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit.
The court may by the order grant an interlocutory injunction to restrain such
action or make such order for the purpose of staying and preventing the damage
of wasting, alienation, sale or disposition of the property as the court thinks fit
until the disposal of the suit.
~
or
ofa
•
•
•
•
• That property in dispute is in danger of being wasted or alienated by any
party to the suit or wrongfully sold in execution of a decree; or
:'
lAthe
v_the
1
1. For the protection of interest in the property
~.
~
nethe
~
'inciple in
anot be
tIe,
or CONTRACTS
• They are non- conclusive and do not decide the merits of the case or any
issues involved.
• They are used as a tool to prevent any threatened harm or irreparable
damage till the suit is decided and the parties seek a final remedy.
• It is for a period specified by the court and the decision of the court as to
the motion of injunction is discretional and not automatic.
The discretion must be exercised, keeping the facts of the case in
mind, towards the temporary injunction which helps maintain the status quo
until the trial is final. This discretionary power has been exercised in many
landmark cases like Siegel vs. Lepore.
:::_d by the
.me
LA\v
32
lj"RACTS
I
a Cross Offer?
nmission
I_to
We may find these counter offers in real estate deals, employment
negotiations, and car sales.
~
fj
e
the
:ttparties
·JBSERIES
~
t~
I
~
Understanding Counteroffers
When two parties get together to negotiate a transaction or business deal, one
may put an offer on the table. A counteroffer is a reply to that original offer and
may change the terms of the deal, including the price. The price may be greater
JB SERIES
LA W
m CUN I HACTS
or less than what was originally quoted depending on who makes it. So if the
person receiving the original offer doesn't accept or reject it, they may decide to
renegotiate with a counterofTer.
34
~~
for Rs.
kno\.tr
other
are~.
r
Eg;Ms. X decides to put her house on the market for Rs30,000. Mr. Y views it
and makes an offer of Rs25,000 instead. Ms. X decides to make a counteroffer
ofRs28,000 instead, thus putting the onus on Mr. Y to accept reject or counter
that offer and continue negotiations again.
There is no limit to the number of times each party can counter during
negotiations. When countering back. and forth, each offer should present a price
less than the previous offer. This conveys to the seller that the buyer is nearing
the final offer.
A counteroffer is generally conditional. When the seller receives a low
offer, the seller can counter with a price that is deemed reasonable. The buyer .•.
can either accept that offer or counter again. The seller can counter the offer.
The person receiving the counteroffer does not have to accept it.
Eg: A sel1er wants to sell a vehicle for Rs. 20,000. A buyer arrives and offers
Rs 15,000 for the vehicle. The offerer provides a counteroffer. asking for
Rs 16,000 with the objective of obtaining a higher price. If the offeree declines,
the offerer cannot force the buyer to purchase the vehicle at Rs 15,000, even
though the buyer suggested that price. .
Cross Offer:
28.~
Ans~
areW
have c
conv
such cc
'-'H
inv<u
Exav
debate.
sig~
purcha
con~
some r
'"
Kinds
.'tt
~
Where two persons make identical offers to each other, and both such persons
do not know about each other's offer, then such offers are known as cross-offer.
The essentials of a cross offer are as follows:
• C
"
,,'-'
E
• Same offer to one another: The first pre-requisite of a cross offer is that
two or more persons should make similar offers with the same details.
• Without knowledge: Such identical offers must be made in ignorance of
the offer made by the other party.
• The terms and conditions: The terms and the object of the offers must be
the same. A set of offers would be considered to be cross offers only when
the terms and conditions as well as the object of the offers are the same. If
not, then such offers cannot be called a cross offer but a counter offer.
A cross offer does not mean acceptance of the offer. No binding contract is
created.
Illustration: A from Delhi by a letter offers to sell his house to B of Bombay
for Rs. 10 lakh. At the same time, B also makes an offer to A to buy A's house
~
F
\.t
\r
A
\.I
Execu
Wht'\_,
notaUl
His '-'
•
• rl
\.;
~
JB SERIES
V
..
•
JiiRACTS
_!
4
~3~
----------------------
LA':'; or CONTRACTS
~
eOciidfethtoe
,I"~
.....,..""."
for Rs. 10 lakh. Both the parties made an exact offer to each other without
," knowing about the offer being made by the other. The two letters cross each
other. There is no concluded contract between A and B because both the parties
•
are made a cross offer.
t).,
~
.iews
it
ounteroffer
.ounter
28.Explain in detail about Executory contract
and Executed contracts.
·
Ans: An executory contract is a contract made by two parties in which the terms
are set to be fulfilled at a later date. The contract stipulates that both sides still
~ have duties to perform before it becomes fully executed. In an executory
during]
•
!Ii
contract, the consideration is either the promise of performance or art obligation. In
:e. a p~lce
such contracts, the consideration can only be performed sometime in the future.
"wearing:
111
I
• a low
~i\!rs
It
•
buyer]
•
offer. ~
r
the
•
offers
asking for
e4lclines,
Before signing, or "executing" a contract, it is very important for all parties
involved to read and understand all of the terms contained within.
Example: John has been looking at a TV he wants to purchase. After some
debate, he finally decides to go lease it instead. John enters the electronics store.
signs a lease agreement that states the he will pay RsIOOO per month until the
purchase price has been paid in full. Until John makes the final payment, the
contract has not been fulfilled. There are many types of executory contracts,
some more complex than others.
Kinds of executory contracts:
':' evenl
c~ersons
:r.-offer.
:.s.
.•
er
IS
that
•
irance of
's~ust be
)~when
~Ine.If
)
r.
atis
•
•
).ombay
A's house
" Rental lease: Tenant is required to pay the landlord rent; landlord required
to provide living space.
"
" Car lease: Consumer makes lease payments to the dealership; the
dealership provides the car in return. Etc.
" Breaching an Executory Contract
Either ( any of the two parties) party to a contract can breach that contract
by failing to fulfill their duties as outlined in the agreement.
For example, if Jim enters into an executory contract to lease a car, then
fails to make the required monthly payments, he has breached the contract.
As a result, the dealer may repossess the car, and sue Jim in civil court for
uncollected payments.
Executory Contracts in Bankruptcy:
When an individual who is party to an executory contract files bankruptcy, he is
not automatically relieved from his performance under the terms of the contract.
His options include
• confirming in writing that he intends to continue to fulfill the terms of the
contract, or
• rejecting the contract within the bankruptcy.
JB SERIES
-----;\.-35
---LA W OF CONTRACTS
Eg: If Jim wants to keep his leased car, he can reaffirm the lease, keep the car,
and continue making the lease payments as agreed. Ifhe wants to be relieved
from the burden oflease payments, Jim can return the car to the dealer and put
the contract into the bankruptcy.
36
~\."
Exceot
For"'(
exce'vi
.~
Executed contracts.
'--'tilt
Definition: An executed contract is an agreement or Contract between two or
more parties that has been signed and is binding to all parties involved. It is a
fully implemented contracLAlso. the term applies to a contract that has been
completely fulfilled and it has come to a conclusion.
V
• A
\"".o(l
Tn
In most executed contracts the promises are made and then immediately
completed. The buying ofgoods and/or services usually falls under this category.
There is no confusion about the date of execution of the contract since in most
cases it is instantaneous. The buying of goods and/or services Usually falls under
this category.
Eg : Lucy goes to the local coffee shop and buys a cup of coffee. Peter sells her
the coffee in exchange for the cash payment. So it can be said that this is an
executed contract. Both parties have done their part of what the Contract stipulates.
~I
till
'n11
1
'-'
en
30. ~h
\".;f
29. Minors are incapable of entering into contract? Explain with case law.
Ans: The terms "minor" and "infant" are used in law to describe a person who
Ans: [
reasu
ordinar
rem...."
is under the legal' age of an adult.An "adult" is a person who is 18
older. A contract with minor stands null and void since either party can not
impose
it. And even
after
the
person
attains
majority,
the
same agreement cannot be ratified by him ..
Rerr\..r:
a natur
and~
Case law:
MohiriBibi v. DharmodasGhosh
TheU
The case goes back to the year 1903 in which, for the first time, the
Council held that a minor's contract is void-ab-initio i.e it is void from
beginning.
The pr
land\."i1
party ii
wer~
Facts of the case - The plaintiff DharmodasGhosh,
the
When he was a minor,
mortgaged his property to the defendant, a moneYlender. At that ti
defendant's attorney had the knowledge about plaintiff's age. The plaintiff 1
paid only Rs 8000 but refused to pay rest of the money. The plaintiffs
was his next friend (legal guardian) at that time, so he commenced an
against the defendant saying that at the time of making of a Contract, he was
minor, so the contract being a void one, he is not bound by the same.
• The court held that unless the parties have competence under Section 11
the Act, no agreement is a contract.
• The court also held that The doctrine of estoppel does not apply to the c
in which the person knows the real facts, before hand and here the nTTr'Tlir
of the defendant knew that the plaintiff is a minor.
usi
cons~
result rThis~
ackn[ ~
the oM:
\""
•
•
'j"RACTS
I 36
~e car,
~t!reved
Exception to general rule
~ For providing protection to a minor, his agreement is void. But there are certain
LAW OF CONTRACTS
i
end
put ~,:;exceptions as well.
• When minor has performed his obligation: In a contract, a minor can be
a promisee but not a promisor. So if the minor has performed his part of
the promise, but the other party hasn't the minor being in the position of a
1 two or
promisee he can enforce the contract.
.isa
• A contract entered into by guardian of minor for his benefit: In that
IS been
case, a minor can sue the other party when it does not perform its promise.
In the case of Great American Insurance v. MadanLal[l] the guardian on
the behalfofher son entered into an insurance contract in respect of fire for
the minor's property. When the property was damaged and minor asked for
the compensation, the insurer denied it by saying that a contract with a
minor is a void one. But later the court held that this contract was
enforceable, and he is liable to pay compensation.
•
•
30. What are Remote damages? When they can be claimed?
Ans: Definition: Any damage occurring from a defendant's act that cannot
reasonably be anticipated by the defendant, or that is not the natural and
ordinary result of such act. A defendant will typically not be held liable for
remote damages to a plaintiff's person or property.
'e,aon who
I ~
18 or
twan not
,rliy,
the
Remote damages are damages from an injury not occurring directly from and as
a natural result of the wrong complained of. They are damages of an unusual
and speculative nature.
•
•
the Privy,
i.m
the
)~ minor,
tiit time,
tmriff later
:P'-'mother ~
1-- an action iI
:,. was a;
::.n
i
11
eni
t_he case
Iwttorney"
•
The General Principle
The principle governing the remoteness of damages was elaborated in the
landmark case of Hadley v. Baxendale. The rules stated in this case were that a
party injured by a breach of contract could recover only those damages which
were either to be considered "reasonably as arising naturally, i.e., according to
the usual course of things" from the breach, or could reasonably have been
considered by both parties at the time they entered into the contract as the likely
result of the breach.
This is the basis for understanding special damages. In this case, the Court
acknowledged that the defendant's failure to send the crankshaft for repair was
the only cause for the plaintiffs' mill to stop, resulting in loss of profits.
.JBSERIES
i
i
JB SERIES
J"'
'-'
iii
:ft
37
31. What is Doctrine
doctrine ?
L;\\\'
of Frustration
and conditions
cr
CCNTRACTS
necessary
for this
~
,~
38
1I
32. ~j
Ans\Jl
negotia
Ans: Section 56 deals with the doctrine of frustration as being acts which ~ refe~
~
cannot be performed.
leave it
The conditions necessary for the application of Sec.56
beha~(
• There exist a valid and subsisting contract between the parties:who~l
Existence of a valid contract is the foremost condition for the application ,.; not neg
of Section 56.
I
(
~,
•
There must be some part of the contract which is yet to be performed:Only if there is some part of the contract \\ hich is yet to be performed and
without performing it the ultimate purpose of the contract is not fulfilled.
• The contract after it is entered into becomes impossible of
performance:- The contract after it has been entered into must become
impossible to perform and cannot be performed and therefore contract
stands void.
Generally, frustration of contract can be in the following cases
I. Death or incapacity of a party:- Where a party to the contract has died
after entering into contract or the party is incapable of performing the
contract, in such a situation the contract will be void (Robinson vs.
Davison).
2. Frustration by virtue of legislation:- Where, a law promulgated after the
contract is made, makes the performance of the agreement impossible and
thereby the agreement becomes void ( Rozan Mian v Tahera Begum).
3. Frustration
due to change of circumstances:- This particular situation
deals with those cases where there was no physical impossibility
performance of the contract, but because of the change in circumst ..u"",,,,..,,
the main purpose for which the contract was entered has been defeated.
Types of impossibility:
Initial impossibility: Initial impossibility deals with those cases where
contract was impossible to perform from the very beginning.
For example If a married man knowing that he cannot marry again promises
do so, then he is bound to compensate the other party.
Subsequent impossibility:- It deals with cases where the contract was poss
to perform when it was entered but because of some event, the performance wil
become impossible or unlawful and therefore it discharges the party
performing it.
For example, If A purchased Tickets from B for watching a cricket match
he pays 50% as an advance. If the match is cancelled then A cannot
from B as the cancellation of match was beyond the control of A.
Limitation: This doctrine will also not be applicable in cases where there was
mere delay in performance and contract can still be performed.
Conclusion: This doctrine is treated as an exception to the general rule
provides for compensation in case of breach of contract.
efficien
havt\.tl
negotia
serv~
ordi\.j
consun
cOIl\.lJ
even if
in tl'-'1
away fi
'-'
wherterm~(
pncl.)
visibTe,
~
•
•
•
jNTRAl
IS
38
.".or
this,
32. What is a standard form of contract?
Ans: Standard Form Contracts are agreements that employ standardized, non-
Is
LAW OF CONTRACTS
negotiated provisions, usually in preprinted forms. These are sometimes
referred to as "boilerplate contracts," "contracts of adhes ion," or "take it or
leave it" contracts. The terms, often portrayed in tine print, are drafted by or on
behalf of one party to the transaction - the party with superior bargaining power
who routinely engages in such transactions. With lew exceptions, the terms are
not negotiable
by the consumer.
<-
which
•
.rties:Plcation
Standard form, business-to-consumer
contracts fulfill an important
efficiency role in the mass distribution of goods and services. These contracts
r!red and
have the potential to reduce transaction costs by eliminating the need to
ed. '" negotiate the many details of a contract for each instance a product is sold or a
service is used. However, these contracts also have the ability to trick or abuse
c.e
consumers because of the unequal bargaining power between the parties.
ract
For example, where a standard form contract is entered into between an
ordinary consumer and the salesperson of a multinational corporation, the
consumer typically is in no position to negotiate the standard terms; indeed, the
• died ] company's representative often does not have the authority to alter the terms,
~g the l even if either side to the transaction were capable of understanding all the terms
n~n vs.
in the fine print. These contracts are typically drafted by corporate lawyers far
away from where the underlying consumer and vendor transaction takes place.
~rthe
The danger of accepting. unfair or unconscionable terms is greatest
i_and
where these artful drafters of such contracts present consumers with attractive
n).
terms on the visible or "shopped" terms of most interest to consumers, such as
seation
price and quality, but then slip one-sided terms benefiting the sel1er into the less
Jility of
visible, fine print clauses least likely to be read or understood by consumers.
l&ces,
In many cases, the consumer may not even see these contracts until the
ltili'
transaction has occurred. In some cases, the seller knows and takes advantage
of the knowledge that consumers will not read or make decisions on these unfair
the
terms.
'(wmed:- g,
i
''4II
•
.s
111
to
J.ible
nee will
)erom
t.and
The following are some potential solutions or partial solutions to standard
contracts.
•
Contracts should be transparent and accessible. This means, that standard
form contracts must be disclosed prior to the consumer transaction;
•
Disclosures should be clear and simple, not pages upon pages of illegible
and incomprehensible fine print; they must be easy to read and understand;
•
The public and private sectors should test these disclosures in real life
situations to make sure consumers can understand the terms in a timely
manner before the point of sale;
•
•
: Consumers need to pay attention to the contents of contracts, to prevent
against fraud and deception, and to demand accessible, fair contracts;
JB SERIES
LA W OF CONTRACTS
•
•
•
•
_I
_40
__
: Regulators responsible for regulating industries require copies of thei
contracts
to be submitted to the government agencies and be easily if
obtainable from government databases, if not from the industries ~
themselves.
\i'.
• ~~
the
Mf
: t
: Regulators must do more to remove unfair and deceptive practices in
business-to-consumer standard form contracts. :
~
rerr
: Certain provisions should be banned from contracts or not enforced by
the courts. including the seller's unilateral modification of terms. etc
: The private and public sectors need to teach consumers how to
understand the importance of fair contract terms, .
•
: The media needs to report about businesses that are doing the right thing
by consumers by making their contracts accessible and fair;
• Finally, Courts should consider changing the presumption of enforceability
of harmful terms not knowingly agreed to but buried in the fine print in
standard form contracts.
~
•
\J}I
apr
~
dis:
\.,
34. Wh:
Ans:V\.
perform,
unwi~:
contract.
\..;
33. What is appropriation
of payments?
What are its essential elements?
Ans: Appropriation means 'application' of payments. In case ofa creditor and
debtor, Section 59 to 61 lay down certain rules regarding the appropriation 0
payments. When a debtor pays an amount to the creditor, the creditor is to take
note of these sections before applying the payment to a particular debt,
the creditor would be inclined to appropriate the payments to the debt which
not likely to be realized easily .
.Essential elements:
•
The proi
• \.II
• Imj
Exa...,1
contract,
Rs 5~(
antict~t
WhelP" ,
When money is paid, it is applied according to the express will of the
and not the receiver.
•
If the party to whom the money is offered does not agree to apply
according to the express will of the party offering it, he must refuse it
stand upon the rights which the law gives him.
• Appropriation is therefore, a primary right of a debtor
• . Appropriation rules apply only in case of several and distinct debts.
• Appropriation do not apply where there is only one debt, though pay
by installments.
•
Sections 59 to 61 lay down three rules regarding
payments based on English law laid down. They are :
appropriation
•
Where payment of debt to be discharged is indicated: when a deb
owed several debts to one person. (Sec.59): Debtor may express
intentions expressly or impliedly under the circumstances. If there is
express intimation by the debtor, but from the circumstances, it is imp
that the debtor intended appropriation to a particular debt, the de
intentions must be followed, if the money is accept
per
\.;1
•
.
Ch
~,
•
•
)IRACTS
_';
)1
LAW Cif CCiI-..J
j KAll~
_
•
~~sti~~i'
~ustries
l_ced
by
:~ow
to
•
40
..-::::._-------------
•
.Where payment of debt to be discharged is not indicated: (Sec.60) :If
a debtor does not exercise his right, the creditor has the right to appropriate
the payment to any lawful debt though barred by the law of limitation. It is
a settled law that a creditor is entitled to adjust the debts from any security
in the creditor's custody. The time barred debt remains a debt even if the
remedy to recover it is barred.
• Where the debtor does not intimate and the creditor
fails to
appropriate:
(Sec.61) :Where neither party makes any appropriation and
if the debts are of equal standing, the payment shall be applied in
discharge 0 f each proportionately.
right thing
34. What is Anticipatory
)~a.bili~y
l~nnt
In
Ans: An anticipatory breach is a breach of contract before the time of
performance. So, if a promisor denies to perform his promise and signifies his
unwillingness before the time for performance, then it is an anticipatory breach of
contract.
•
I..0
rl.ts?
and a
iriation of
take
t, because
t&ich is
•
_payer
'.ply
it
rse it and
•,-
l.yable
ie:m of
.ebtor
press his
_is
no
:;.plied
~btor's
•
•
Breach of a contract?
The promisor can convey his unwillingness either by:
• Expressing it in words (spoken or written)
• Implying it by his conduct
Example: Peter enters into a contract with John on June 01, 2018. As per the
contract, Peter agrees to sell his guitar to John on June 10. 2018, for an amount of
Rs 5,000. However, he sells this guitar to Oliver on June 07, 2018. Hence, it is an
anticipatory breach of contract due to Peter's conduct.
When a promisor refuses to perform his promise leading to an anticipatory
breach of contract, the promisee is excused from further performance of his
obligations. Also, he can either:
• Treat the contract as cancelled and file a suit against the other party for
damages arising from the breach.
• This suit can be filed immediately without waiting until the date of
performance specified in the contract.
OR
• Choose not to cancel the contract performance.
• However, he will need to keep the contract alive for the benefit of
all parties involved.
35. When an offer is said to be Lapsed? Explain.
Ans: An offer made subject to a specified time limit lapses after that time has
passed; all other offers lapse after a reasonable time. Death of the offeree causes
an offer to lapse, but death of the offeree does not always do so..... An offer
lapses if one or more conditions are not fulfilled.
An offer lapses under the following circumstances :
• An offer lapses by the death or insanity of the offeror or the offeree
JB SERIES
41
42
LAW OF CONTRACTS
• Before acceptance: If the offeror dies
• If the offeree becomes insane before acceptance,
• The offer lapses provided that the fact of his death or insanity comes to the
knowledge of the acceptor before acceptance
Where time is prescribed
Where in a contract, a fixed time has been prescribed to the offeree to
communicate the acceptance, the offeree is bound to accept the offer within the
fixed time so prescribed because after the expiry of the fixed time the offer
lapses.
Where no time is prescribed
In the contracts where no time is specified within which the offer should be
accepted it is a settled principle that the offer must be accepted within a
reasonable time.
\"
37. WI
~p
anot\_.;
with the
fact ...,.
to a cor
Typh'.
1. FV
is mad(
intel\.,J
belief il
2 .~,
contr=c
beli~1
By failure to accept a condition precedent
Where the offer is subject to conditions precedent that is some preconditions
have to be complied with before the acceptance is made. If the acceptance is
made without fulfilment of the condition precedent then the offer lapses then
and there.
36. What is a declaratory
declaratory decree.
decree?
State
the law with
regard
3.ID\.,jf
fault ca
Fra~
another
ConWt
1, ,
'-'j
to
\;
(
A declaratory decree is a decree that declares the rights of the plaintiff.
This is a binding statement, according to which the court declares certain
existing rights in favour of the plaintiff. The declarative decree only exists when
the plaintiff is deprived of the rights he / she is entitled to. Here, the plaintiff
obtains special relief from the defendant who rejected the plaintiff s rights.
ADS.
DiftV
1.
'-'
~
According to Section 34 of the Special Relief Act of 1963, anyone who is
entitled to any legal nature or any property right may bring a law suit against
anyone who refuses or intentionally denies that he has such nature or right, and
the court may make a declaration in his discretion that he is so entitled.
The stipulations of the declarative decree would only allow the plaintiff
to survive and be strengthened even under adverse attacks so that the attack on
the plaintiff could not weaken his case. In the case of Naganna v. Sivanappat'I
through arguments, it encourages the plaintiff to come forward and enjoy their
rights. If any defendant refuses to provide the plaintiff with any rights that the
plaintiff should have, it gives them the power to sue and obtain special relief.
~
\..f
4.
\w
V
\.I
38.
C
Ans
cont~
put,
Iwr
J8 SERI
•
•
•
•
i
-~
I~ 37.
--------------------
L_A_\\_'O_r_c_O_r_JT_R_A_CT_5___
i)
.s
to the
qiferee to
. ~thin the
e,e
offer
!ould
jeithin
'be
a
•
•
:c~ditio~s
;.ance
IS
aites then
•
regard
•
to
x.
;!.aintiff.
'es certain
when
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uit against
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and
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e p amn
• ckon
ranappalli.
their
t~hat the
fIIl!!Ifief
:rttY
•
•
•
What is Misrepresentation?
Distinguish
it from fraud.
Any representation by words or other means made by one person to
another that, under the circumstances amounts to assertion not in accordance
with the facts is called misrepresentation. It is an untrue statement of a material
fact made by one party which effects the other party's decision in corresponding
to a contract.
Types of Misrepresentation
1 . Fraudulent misrepresentation:
It will happen when a false representation
is made and the party making the representation knew it was false or rmade
intentionally as to whether it was correct or incorrect - the lack 0 f an accurate
belief in its truth "viii present it a fraudulent misrepresentation.
2 . Negligent misrepresentation:
It means a declaration made by one
contracting party to another negligently or without reasonable grounds for
believing its truth.
3.Innocent misrepresentation:
Misrepresentation made completely without
fault can be described as an innocent misrepresentation.
Fraud: A deceptive act done intentionally by one party in order to influence
another party to enter into a contract is known as fraud. Section 17 of Indian
Contract act provides two essentials to prove that an act is fraud.
1. A person should make a false statement having the knowledge that the
facts are false.
2. The second condition is that there should be a wrongful intention to
deceive the other party.
Differences between Fraud and Misrepresentation
1. Fraud is an intentional misrepresentation made in order to deceive
someone, misrepresentation on the other hand is an innocent statement
made without any intention to deceive.
2. Intention differentiates the two; it is an important element as fraud is
intentional while Misrepresentation is not.
3. The aggrieved party inn fraud has a right to sue but it is not so in
misrepresentation.
4. The party who made a fraudulent statement cannot take the defence that
the other party had means to discover the , in cases of misrepresentation
this defence can be taken .
5. Fraud is defined in Section 17 and misrepresentation is defined in
Section 18 of the Indian Contract Act, 1872.
38. Discuss the Rule laid down in Hadley and Baxendale.
Ans. Theoretically, there may be endless consequences of a breach of
contract and the Defendant cannot be held liable for all of it. Hence, a limit is
put on the liability beyond which the damage is said to be too remote and,
SERIES
JB SERIES
LAW OF CONTRACTS
irrecoverable. The classic
contract-law
case
of Hadley v.
Baxendale draws the principle that consequential damages can be recovered
only if, at the time the contract was made, the breaching party had reason to
foresee that, consequential damages would be the probable result of breach.
This formulation diverges from both the general principle of expectation
damages in contract law and the principle of proximate cause outside the law of
contract.
therefore,
The facts of the case are as follows: The Plaintiff was the owner of a steamdriven mill which had a broken crankshaft. They had to send the broken part
from Gloucester. in the west of England, to Greenwich, near London, whereir
would be used as a model in the manufacture of a replacement part. It was
important to have the part transported quickly, as the Plaintiff did not have a
spare, and was losing profits while the engine was out of order. Pickfords, the
shipping firm, was late in the delivery of the part, and the Plaintiff sued for the
lost profits caused by the delay.
Issues
\.f
Element
l~r
2"\Jr
3. C
4~'
All~l
All (\.,.1
always
Wit~t
are Azn
All~
Only th(
no l~l
hencc.il
When)
The main issue in the case was: Whether or not the loss of profits resultant
from the mill's closure was too remote for the claimant to be able to claim?
An \-lIl
conditic
Summary
Acc~
is ma-le
cont~1
of court decision and judgment
The Trial Court left the case generally to the jury, which awarded the Plaint"
damages of £25 above and beyond £25 that Pickford had already paid '
court, The Exchequer Chamber reversed, but not on the theory of remoteness.
On the facts, the Court found that losses of this kind did not arise according
the usual course of things, and the plaintiffs had failed to disclose their p
loss of profits at the time of making the contract. Only damage that could
foreseen (or contemplated as some judges continue to insist) at the time of ... r rv ..,...
into the contract, is recoverable in damages. The court concluded that
Plaintiff had failed to satisfy either test of reasonably arising natural damages
reasonable contemplation. The two branches of the court's holding have ('{)nn~'Il
to be known as the first and second rules of Hadley v. Baxendale.
rj
tv
An agl
sati~
• 1
~
•
Ans. A contract is an agreement in writing between two or more persons
their reciprocal rights and duties regarding past or future performances
An agreement is defined as "every promise and set of promises
forming the consideration for each other is an agreement" in section 2(e) of
Indian contract Act, 1872. When a proposal is made by one party and same
accepted by another party it becomes a promise and when this promise is .
some consideration by aby of the parties is an agreement.
All \.,;'
cornpet
are
'-1
39. All contracts are agreements but all agreements are not
Discuss.
Agreement:
~j:~
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•
~
1jACTS
-r,
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a.:v
v.~
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i Elements of a agreement
recovered:
.on
to'
If breach.
:retation'
he law of
•
1.
2.
3.
4.
LA_W_O_F_C_O_N_T_R_A_CT_S_
are:-
Presence of parties
Promise
Consideration
Consensus parties
All Contracts are Agreements
All Contracts are agreements as lor the formation of a contract an agreement is
)~n
pa~ti always necessary. There cannot be a contract where there is no agreement.
.ere
Without an agreement a contract cannot be formed. Therefore, All Contracts
t~t was;.,.'.'are Agreements.
It..rave a: All Agreements are not Contracts
oJlk;, the] Only those agreements become contract which gives rise to a legal obligation. If
dTor the] no legal duty is enforceable by an agreement, it can never be a contract. And
i hence agreement is a broader term than Contract.
•
II When Agreement becomes Contract
An agreement is regarded as a contract when it is enforceable by law. The
rAltant
conditions of enforceability are stated in S. 10 of the Indian contract act 1872.
"l
,.
I
F8ntiff
a~ into
o.ess.
r~g to
lo"ntial
oat be
or~ntry
•
the
..
rages or'
.me
•
;;Iout
"
~es,
Of the
_is
is with
"..
According to section I0, an agreement becomes a contract when the agreement
is made for some consideration between the parties which are competent to
contract and are entering into Contract with their free consent and has a lawful
objective.
What Agreements are Contracts?
All agreements are contracts if they are made by the free consent of parties
competent to contract, for a lawful consideration and with a lawful object, and
are not expressly declared to be void.
An agreement becomes a contract when the following conditions are
satisfied:• There is some consideration for it. (S. 2( d) and S. 25) An agreement
without consideration is void and it cannot form a valid Contract as a
void agreement is not enforceable by law
For example, If A promises to give to B Rupees 10,000 without any
consideration, it will be a void agreement.
• The parties are competent to contract. (S. 11 and S. 12) : Every person
is competent to contract who has attained the age of majority, is of sound
mind and is not disqualified by any law from contracting.
• Their consent is free. (S. 13-22) : The parties should enter into a contract
by their free consent. There should not be any coercion, undue influence
, misrepresentation, fraud and mistake.
JB SERIES
45
LAW OF (UN I KALI ~
• Their object is lawful. (S. 23-30) The object and consideration need to
be lawful. Every agreement of which object or consideration is unlawful
is a void agreement
For example, A, Rand
C enter into an agreement for division among
them of the gains acquired by them by fraud will form a void agreement
as the object is unlawful.
'-'A
agrVll
that th
lea~)
FlI~l'
40. Accord and satisfaction.
Ans. The Doctrine of Accord and Satisfaction
means discharge of one's
contractual obligations by way of performing substituted obligations. It is a
mode of one's discharge from his /her contractual obligations wherein parties to
a contract perform a new set of obligations in substitution of older contractual
terms. In the Boghara Polyfab Case the Supreme Court of India has explained
the Doctrine as follows:
"While discharge of contract by pel/orl71ance refers to fulfilment of the
contract by performance 0/011 the obligations in terms of/he original contract,
discharge by "accord and satisfaction" refers to the contract being discharged
by reason of performance of certain substituted obligations. The agreement by
which the original obligation is discharged is the accord, and the discharge of
the substituted obligation is the satisfaction. '.'A contract can be discharged by
the same process which created it, that is, by mutual agreement. ,.
In the aforesaid matter, the Supreme Court has further explained that as the
discharge of contract is also done by mutual consent, such discharge can happen
either by performing modified obligations or by entering into a whole new
contract in substitution of the original contract. Essentially, the discharge of
one's contractual obligations by way of performing the original terms of the
contract is substituted by either a whole new contract or a new set of obligations
within the same contract.
Applicability of the Doctrine: The Privy Council has applied the said Doctrine
in a matter where one party had accepted the receipt of payment made in lieu of
a settlement by the other party. The Supreme Court has also relied on the said
judgment while adjudicating ~mthe Boghara Polyfab Case.
41. Nudum Pactum.
ADs. The term 'Nudum Pactum' has been derived from Latin term which means
a naked agreement. As per law, a contract is only enforceable when there is
consideration which is t the basic requirement of a valid contract. If there is no
consideration that is a nudum pactum, and hence such a contract is neither
enforceable nor valid .
. Example: Joe and Ann agree that Joe will sell his truck to him in three
months. However, during those three months, he decides not to sell his truck
after all and withdraws from the promise. Legally, there has been no breach of .
contract as no consideration was made.
V
cnorm
eaC\J)
Anson
cle~t
wither
per~
UnC
•
•
42.'d.
A"l}
pertor
eyv
There
unlV'
agreei
In~
mmor
y
tht,
•
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•
I
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-_TS
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,
•
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•
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tt
!
t
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IS a
aws to
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(.ined
•
the
onlracl,
c.rged
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'1
by
ge of
1.
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I
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it,
46
I AW OF CONTRACTS
A nudum pactum might be made verbally or in writing. Since these
agreements are unenforceable, they may not be pursued in court. This indicates
that these agreements do not come under the categories of agreements that can
lead to legal action.
The contract, on the other hand, is regarded as legitimate if it is sealed.
Furthermore, some contracts, such as bills of exchange, sealed documents, and
promissory notes, bear consideration as a result of their forms. Even if there is
no formal consideration inside them, thev_, are regarded
as ~genuine.
--No nudum pactum is enforced under English law. Every day. an
enormous number of agreements are formed. and it would be absurd to treat
each one as a legally enforceable contract.
Anson states that when one understands the history of assumption it would be
clear that even in ancient days there was speculation that an agreement which is
without any consideration is legally binding and can parties be bound to
perform such agreements.
Under English law contracts can be formed in two ways namely,
• contract with consideration : Contract with consideration is an agreement
that satisfies all the six essentials of a valid contract
• contract by a seaL : Contract with consideration is an agreement that
satisfies all the six essentials of a valid contract
".d by
the
happen
).new
large of
;.' the
i,ions
)Irine
1
u of
t.said
•
1.ans
*re is
• s no
iiither
l.hree
is truck
·eh of
•
.IERIES
42. Unlawful agreements.
Ans. unlawful agreements are those which are not enforceable by the law i.e
performance of the agreement can be done but there is no legal recourse in the
eye of law.
There are some basic elements which makes the contract illegal or
unlawfuL Indian Contract Act 1872 deals with the conditions when the
agreement becomes void.
Incompetency - When the parties entering into a contract are incompetent i.e.
minor, Act 1982, a person of unsound mind.etc.
Illegal intention - If the subject matter of the contract is not authorized by
the
provisions of law. Then the contract is considered to be 'illegal'.
• When the terms and conditions of the contract are mistaken by either
of the party - When the terms and conditions of the contract have not
been understood by the party or are vague in nature.
• Mistake and Fraud -When the terms of the contract are misrepresented
by either of the party or influence a person to enter into a contract
fraudulently then the contract considered to be illegaL
• Forbidden by law - If an agreement is such a nature, that it would defeat
the provisions oflaw the contract is considered to be "void".
• Injury to a person or a property - when the contract is of a nature that
it would cause injury to a person or a property then the contract is
considered to be "void".
JB SERIES
r
~
Ii
~~
~
47
LAW OF CONTRACTS
ft
e
•
Opposed to public policy -when the agreement
IS opposed to public
policy then the contract is considered to be "void".
Examples of illegal contracts
Here, are some examples of illegal contracts
• Contracts for the sale, or distribution of illegal substances i.e. drugs.
• Contracts of activities which are considered illegal by the law.etc
Conclusion: If the terms of the Contract are illegal or opposed to the public
policy then the contract is considered to be "null" in the eyes of Jaw and it
cannot be enforceable in the court.
I
t.
48
"
"'-'
4J
1. A I
"':
C'
...,
Ans F
•
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Issues
Wa~
Does tl
Jud~
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~~~~
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rela~
was",
Judl!.l
promis
hus~
RefC
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W
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."I
"
.AfjS
_I
LAW OF CO['HR,t'lCTS
48
wliel
;•;.
j n
•
••
•
•
•
•
•..
•
•
••
•
•
•
•
••
•
C Answers
1. A husband promised to wife that he would give Rs 3000 every month
to her for running the family, however, he committed a breach of that
promise. Can the wife sue her husband for breach of contract?
..
Ii.
Part-
Ans: Facts in the case:
•
I
II
•
A husband promised to give Rs 3000 every month for running the
family.
He committed a breach of that promise,
Issues of the case:
,
•
Can the wife sue her husband for breach of the contract.
• Principle: This case similar to a famous case Balfour Vs Balfour
The Plaintiff and the Defendant were a married couple. The Defendant
husband and the Plaintiff wife lived in Ceylon where the Defendant
worked. In 1915, while the Defendant was on leave, the couple returned
to England. When it was time to return to Ceylon, the Plaintiff was
advised not to return because of her health. Prior to the Defendant
returning, he promised to send the Plaintiff £30 per month as support.
The parties' relationship deteriorated and the parties began living apart.
The Plaintiff brings suit to enforce the Defendant's promise to pay her
£30 per month. The lower court found the parties' agreement
constituted a contract
Issues in the case:
Was Mr. Balfour offer intended to be legally binding?
Does the husband's promise to pay £30 per month constitute a valid contract?
Judgment in Balfour v Balfour 1919: The court said that it is essential that
both the parties should intend that an agreement be legally bounding so to
become an enforceable. Also the court will not interfere between the spouses in
their day to day affairs. The agreement was purely social and domestic nature
and therefore it was presumed that the parties did not intend to be legally bound.
Atkin held that the law of contract was not made for personal family
relationships. As there was no intend to be legally bound when the agreement
was agreed upon, there can be no legally binding contract.
Judgement: Based on the above judgement in the given case also her husband's
promise also was not intended to be legally binding. So his wife cannot sue her
husband for breach of contract as there is no valid contract at all.
Refer: Another case law: Smith Vs Huges.
J8 SERIES
49
LAW OF CONTRACTS
2. A agrees to pay B a sum of money if B marries C , C married D. what is
the remedy available to B ?
Ans: Facts of the case:
•
•
•
A agrees to pay B a sum of money if B marries C.
B married D.
What is the remedy available to B?
'-'I
can rp~c
~
4. A. ~
Issues in the case:
• Whether C married D with or without the consent of A?
• Whether A knows about that marriage before contracting with B?
• Whether A is liable to B?
• Principle: Doctrine of Frustration
applies here. Frustration of contract
is the general law's method of allowing parties to be relieved of their
legal obligations. It only applies to contracts which have become
impossible to perform.
A supervening
event changes the c ircurnstance , of performance of the
contract so significantly, that the parties no longer need to perform the
contract. The supervening event terminates the contract.
• Judgement: In the given case a supervening event C marrying D)
changed the circumstances
of performance
of the contract
so
significantly
and terminates the contract that the parties no longer
need to perform the contract.
Frustration of a contract occurs without the fault or control of either party, and
therefore, a party should not be made to compensate in such event. However,
not providing adequate compensation may also cause loss to the other party.
But in the given case there is no loss of that sort. So A need not compensate B
and also B do not have any remedy except marrying another suitable person.
3. A owes to B Rs. 2000/- but the debt is barred by the limitation Act. A
orally promises to pay the debt can B recover the none.
Ans:
Facts in the case :
1. A owes to B Rs 2000.
2. That debt is barred by Limitation Act.
3. A promises to pay the debt.
Facts in issue:
1.Can A recover the debt barred by the Limitation Act?
2. Ifhe can recover, how can he?
J
hi~h
kU'
recov
Ans~
Faclr!fc
•A
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• A~o
• AV
• Hew
'-'
Issues i
·
~
Princ-n
• k'Is
h'
J
• irt(
~
Facts ir
•
I\.I~
•
•
This. _'"',
case~
hous...,
The nu
defm\.,r
parties:
Indi,,-,
contrac
legal~
For ex;
Time-barred debts are debts that
collectors to sue you for collection. Time-barred
debt is also
as debt that is beyond the statute of limitations which is no no longer Ie
collectable. But Creditors and debt collectors can still collect time-barred de
with calls and letters. At the same time borrowers must have a moral obligat
Act.~
Rule'",
• A~
~
•.. I
I
:!.,. SiS -I· :
W
••
••
?
repaytime-barred debt, but not a legal obligation.iecourts"::~::::::::(t:em
to pay as time barred debts not enforceable by law.
Iii·
In the given case the borrower himself orally promised to repay.So B
can recover the money from A.
,>
I
;!'
4. A a minor entered into a contract with B a money lender and mortgaged
his house for Rs 20,000 by misrepresentation himself as major after
knowing the fact that A is minor B wants to cancel the contract and
recover the money advanced to A . Advice B ?
Ans:
!l<
o act B Facts of the case:
if their i • A a minor entered into a contract with B a money lender
• A mortgaged his house for Rs 20,000 by misrepresentation himself as major.
• After knowing the fact that A is minor B wants to cancel the contract.
~the I
• He wants to recover the money advanced to A .
,r.the '
•
,ame I
I
ieD)
act so
leger
t_and
>1iver,
L~
tlWe B
son.
•
•
••
•
•
•
A
id debt
.wn
_ ally
ebts
Issues in the case:
• Can B, a money lender cancel the contract and recover his money?
Principle:
• A is a minor entered into a contract with B a money lender and mortgaged
his house for Rs 20,000" by misrepresentation himself as major
• After knowing the fact that A is minor B wants to cancel the contract and
recover the money advanced to A.
Facts in Issue:
• Is A a minor competent to enter into a contract?
• Is such contract is a valid contract?
• Can B , a money lender cancel it and recover is advanced money?
This case is similar to a famous case MohiriBibi v. DharmodasGhose. In this
case,a minor had borrowed some money from a money-lender by mortgaging his
house.
The money-lender moved to take possession of the minor's house when he
defaulted payment. The court, however, said since an agreement with minor
parties is void, the money-lender could not enforce this contract.
Indian courts have repeatedly used this judgment to abrogate minors from
contractual obligations. Hence, minors cannot enter into agreements unless some
legal provisions allow them.
For example: A minor cannot transfer property as per the Transfer of Property
Act. He can, however, receive property from other persons under a legal contract.
Rules relating to Agreement with Minor Parties
• Although, as a general rule, a contract with minors is void, we must keep in
mind the following rules as well:
liiltion
JB SERIES
51
LAW OF CONTRACTS
•
A contract with a minor is void and, hence, no obligations can ever arise on
him thereunder.
• The minor party cannot ratify the contract upon attaining majority unless a law
specifically allows this.
• No court can allow specific performance of a contract with minors because it
is void altogether.
•
The Partnership Act also prohibits minors from becoming partners in a firm.
They can. however, receive the benefits of partnership and ratify the same
upon attaining majority.
• The rule of estoppel under evidence law does not apply to minors under
contractual obligations. In other words, even if a minor forms a contract
claiming majority age, legal obligations cannot arise against him.
• Parents or guardians of minors can name them in contracts only if it benefits
them. But even in this case, the minor cannot be personally liable.
Judgement: So based on the above reasons in the given case also B the money
lender cannot sue A a minor and recover his money he lent.
5.
A a singer promised to perform a concert in B theatre. But one day
before the performance A met an accident which made her fail to perform
the promise. B wants to claim damages against A for breach of contract
.decide?
Ans: Facts of the case:
• Aa singer promised to perform a concert in B theatre.
• One day before the performance A met an accident
• The singer fail to perform the promise.
• B wants to claim damages against A for breach of contract.
Issues in the case: Can B claim damages against A for breach of contract?
Principle: Discharge of contract by impossibility of performance usually ,-.".uv
when the contractual duty cannot be performed because of death, illness, or a
reason caused by the other party .... Subjective impossibility occurs when
promisor is unable to perform the service due to death or illness.
'U"..
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52
s~j
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• P.
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1;1
• Wh;
PriVI
before
bre~.
thereb)
6. X finds a purse on the road, lost by Y. What is liability of X towards Y?
Ans: Facts of the case:
~f
• X finds a purse on the road
• It was lost by Y.
Issues in the case:
• What is liability of X towards Y?
Principle: Since the position of the finder of the goods is that of a bailee
is supposed to take the same amount of care with regard to the goods as
expected of a bailee under section 151 of Indian Contract Act. He is
"'--------------
U
eac
An\.,
•
•
r
t
JNTRACTS
•
r ..
~
-0'
arise on'
:wsalaw
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ause it
•• a firm.
, lbe same ~.
1.
e
•
t-
I
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under
a contract
I
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i.t benefits
N
timoney!
~
I
t~e
day'
:.rform
contract
•
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llyoccurs
or a
w~n the
1e,
.IV?
•
•
•
b!lee he
•
as is
'e is also
•
52
L;"\/J OF corn-RACTS
subject to all the duties of a bailee, including a duty to return the goods after
the true owner is found. His / liabilities are
• Duty to proper and reasonable care: According to Section 151, the
finder of goods should take such care of the goods as a man of ordinary
prudence would take of his own goods .
• Duty not to make unauthorized use of goods (section 153 & 154) :if the
finder of goods make any unauthorized use of the goods found inconsistent
with the condition of the bailment, he is liable to make compensation to the
owner of goods for any damage arising to the goods from or during such use
of them.
• Duty not to mix goods (section 155 - 157): Ifhe mixes the goods found to
him thefinder of goods is bound to bear the expense of separation, and any
damage arising from the mixture.
• Duty to return goods (section 160 & 161) :It is the duty of the tinder of the
goods to return or deliver the goods found to the true owner as per his
directions before the expiration of the time period specified by him.
Judgement: As per the above rules X should hand over the goods to Y the
owner of the goods.
7. A promised to supply some fruits to B on 1 January 2013 but A on 20
December 2012 expressed his inability to deliver the goods. what is the
remedy available to B against A ?
Ans: Facts of the case:
• A promised to supply some fruits to Bon 1 January 2013.
• A on 20 December 2012 expressed his inability to deliver the goods.
Issues in the case:
• what is the remedy available to B against A ?
Principle : Anticipatory breach of contract. When a person repudiates a contract
before the stipulated time, for its performance has arrived, it is an anticipatory
breach. If one of the parties to a contract breaks the contract the party injured
thereby has a right of action for damages as well as he is also discharged from
performing his part of the contract (Section 64).
Judgement: As per the above principle in the given also
B can claim damages from A.
8. A offers through a letter to sell his car to B for Rs 15000/- B at the same
time offers by a letter to buy A car for Rs 15000/- . The two letters cross
each other in post. Is there a concluded contract between A and B.
Ans:
Facts of the case:
• A offers through a letter to sell his car to B for Rs 15000/ B at the same time
offers by a letter to buy A car for Rs 15000/
JB SERIES
S3
LAW OF CONTRACTS
• .The two letters cross each other in post.
Issues in the case:
Principle: When two (or) more identical offers exchanged between the parties
in ignorance at the time of each other's offer, the offer are called as cross offers.
Such offers are not valid offers. In such a case, the courts construe one offer as
the offer and the other as the acceptance. Thus a cross offer will 110tcreate any
contract
Thus there was no conc Iuded contract between' A' and' B
10.A~
D co,,'
Case law :An important case in this aspect is the English case of Tinn v.
Hoffman, the defendant wrote to the complainant an offer to sell him 800 tons
of iron at 69s per ton. at the same time the complainant also wrote to the
defendant an offer to buy the iron at similar terms. The issue in this case was
that, was there any contract between the parties, and would simultaneous offers
be a valid acceptance. The court held that these were cross offers that were
made simultaneously without knowledge of one another and would not bind the
parties.
Prin<\)'
joint liab
joint )...0
death. io
Judgement:
As per the above principle there was no concluded contract
between 'A' and 'B
Fact\;f
• A,
r
• 1\..,1
Issm
• d..b
\.f
or mf"~
expre~
pro?\_,')
Judgem
C to \.I:
entitled
fromv
9. A promised a subscription of Rs 5000 to cyclone relief fund. He does not
pay is there any legal remedy against him?
Ans:
Facts of the case :
• A promised a subscription ofRs 5000 to cyclone relief fund.
• He does not pay .
11. X'-'
pI
comV
the mot
lega~
Fac,,:
Issues in the case:
• Xp:
• Is there any legal remedy against him ?
• B
V
0':
t~
Principle: It's a gratuitous promise. One person promises to do somethi
but the other (you) does not promise anything. The promise to pay
donation is not enforceable.
In legal language, "the offer to pay the subscription
not supported by consideration" from the promisee.
As there is no consideration
Rs.5000
Iss~
.\.,
a
Pri~
this ago
provided by one party, there is no contract.
Judgement:
Basing on t he above principle in the given case also the there
no legal remedy through the court of law becausethere is no considera
provided by one party, there is no contract at all. When there is no con
there will be no question of enforcibility of it in the court.
J8
isl
Thi"
Fac",
propert
hiss'_'
•
•'i
i~
I
_I
ACTS
•
LI\W OF cnl\JTR i'I.CTS
54
~ 10. A ,B, C jointly promise to pay D Rs 3000 A and B are untraceable.
D compel C to pay him in full ?
e parties ~
)e,ffers. f Facts of the case:
• A, B , C jointly promise to pay 0 Rs 3000.
offer as
• A and B are untraceable.
~.any
Issues in thiscase :
• Can D compel C to pay him in full ?
•.
i
•
•
v.
~.tons
Ie
v.
:.as
us offers
La
•
•
••
•
•
•W I
)ething
pay the
••
a is
tet.
I
:.ere
is :
i<lrration
.tract
•
can
Principle: Section 42 of the Indian Contract Act, 1872 provides for devolution of
joint liabilities in a contract. It states that when two or more persons han? made a
joint promise, they are required to perform the promise jointly, and on one of theirs
death, jointly with the legal representatives of the promisor.
Anyone of joint promisors may be compelled to perform.-When
two
or more persons make a joint promise, the promisee may, in the absence of
express agreement to the contrary, compel anyone
or more or such joint
promisors to perform the whole of the promise.
Judgement: As per the above given principle in the given case D can compel
C to pay him in full as per section 42 of the Contract Act 1872. Later C is
entitled to recover the money he paid on behalf of them, if they are traced if not
from their legal heirs.
11. X promises to drop a prosecution which he instituted against B as B had
committed extortion .How ever B gives an undertaking that he shall repay
the money and things which he took away through extortion. Examine the
legal position of such an agreement.
Facts of the case :
• X promises to drop a prosecution which he instituted against B as B had
committed extortion.
• B gives an undertaking that he shall repay the money and things which he
took away through extortion.
Issues in the case:
• What is the legal position of such an agreement?
.
Principle: According to Section 23 this agreement is void. Because the object of
this agreement is unlawful.
This case is similar to a Leading case: William v. Bayley
Facts of the case: In Williams v Bayley, a father agreed to mortgage his
property to a bank if the bank would return to him promissory notes on which
his son had forged his signature.
JB SERIES
1#
~
.""
i·J
~
55
\.,.,
56
LAW UI- lUN IKAll~
B"
The bank had hinted at prosecution and 'transportation' of the son if the father
did not agree to execute the mortgage. The agreement to execute the mortgage
was set aside because undue influence had been proved.
JUdgement :Based on the above Rule undue influence and the judgement
given in the case William vsMaylc in the case also undue influence is
clearlyvisible.
i
t~
\.,
14. A pay
da ug""" ,
examples
'-'
ADS: Fac
\.I
• Apa
<\Jg
12. A proposes by a letter to sell his house to B at a certain price. B accepts
A proposal by a letter scnt by a post. Explain the legal position and when
acceptance is complete.
C di.
Iss~
• W~a
Facts of the case :
• A proposes by a letter to sell his house to B at a certain price.
• B accepts A proposal by a letter sent by a post.
Issues in the case:
• What is the legal position and when acceptance is complete?
•
Principle : According to section 4 of Indian Contract Act, 1872, the
communication of a proposal is complete when it comes to the know ledge
the person to whom it is made. Here when'B' receives the letter of pro
then the communication of proposal is complete.
JUJUI ••_.
A may revoke his proposal at any time before or at the moment when B posts
his letter of acceptance, but not afterwards.
13. A promises B to sell his car for Rs 1,50,000 on a certain date. B agrees
to pay the price on receipt of the car. A refused to sell his car to B . Explain
the future consequences in the above agreement. ?
Facts of the case:
• A promises B to sell his car for Rs. 1,50,000 on a certain date.
• B agrees to pay the price on receipt of the car.
• A refused to sell his car to B.
Issues in the cases : .
• What are the future consequences in the above agreement?
Principle: When a party to a contract has refused to perform, or disabled
himself from performing his promise in its entirety, the promisee may put an
end to the contract, unless he has signified, by words or conduct, his
acquiescence in its continuance.
Judgement: Based on the above principlethe promisee may put an end to the
contract. S60 in the given case also B also can put and end to his contract with
A.
•
~l
Princv
A contrac
may s\...6
contract
Impos~
where~
contra
commo
Superven
explaiv
1. Destru
On th4Jc
liable to
reasork
2. Chont.
Thep~
law. I\,;,
3. Non-c
Whe~
, certam st
f\.;
the
•
•
:jNTRACTS ~
)6
l/\W OF CONTRACTS
wge father I· 14. A pays B Rs 10,0001in consideration of B promise to marry C . A
e~ortgage . daughter, C dies before marriage? Explain the fate of B with suitable
•
examples?
:.
.ernent
Ans: Facts of the case:
• A pays B Rs 10,0001 in consideration of B promise to marry C . A 's
daughter.
• C dies before marriage.
e B accepts
Issues in the case;
r_nd whes
Ie
~
• What is the fate of the B?
~
• Explain with suitable examples'?
~
Principle:
A contract, which at the time was entered into, was capable of being performed
may subsequently become impossible to perform or unlawful. In such cases the
contract becomes void. This is known as the doctrine of Supervening
Impossibility. It is also known as the Doctrine of Frustration. Frustration occurs
where it is established that due to subsequent change in circumstances, the
_72,
contract has become impossible to perform or it has been deprived of its
lOW ledge
commercialpurpose .
• ropos
Supervening impossibility may occur in many ways, some of which are
explained below:
Itposts
1.Destruction of the subject matter of contract
On the destruction ofthe subject matter, a contract is discharged and no party is
liable to perform. Eg: because of death, illness, destruction due to fire or a
~rees
J xpJain reason caused by the other party etc.
2. Change of Law
The performance of a contract may become unlawful by a subsequent change of
law. In such cases, the original contract becomes void.
3. Non-concurrence of circumstances
When a contract is entered into on the basis of the continued existence of a
certain state of things, the contract is discharged if the state of things change.
Eg: A & B contract to marry each other.. Before the marriage A becomes mad.
Thus the contract becomes void.
Discharge of contract by impossibility of performance usually occurs when
thecontractual duty cannot be performed because of death, illness, or a reason
caused by the other party.... Subjective impossibility occurs when the promisor
is unable to perform the service due to death or illness.
an
•
•
•
•
•
•
•
•
••
•
)•.
•1_0
•
ll{
r.
the
." with
JB SERIES
r:..7
rO
----------------------:---------~f,:
..)u
LAW Uf-CON fRAClS
~,
15. A invites B to dinner, B accepts the invitation but does not turn up at
the dinner can A sue B for the loss he has suffered?
Ans: Facts of the case:
• A invites B to dinner.
• B accepts the invitation.
• But does not turn up at the dinner
Issues of the case:
• Can A sue B for the loss he has suffered?
Principle:An offer must be such that when accepted it will result in a valid
contract. A mere social invitation cannot be regarded as an offer. because if
such an invitation is accepted it will not give rise to any legal relationship.
Eg : 'A' invited 'B' to dinner and °8° accepted the invitation. It is a mere social
invitation. And 'A' will not be liable if he fails to provide dinner to B.
To be enforceable by law and to become a contract an agreement must
been made with a view to create legal relations. Here, an invitation is accepted
with a view to create friendly relations and as a result it's not a contract.
Judgement:
No. As an agreement has not been entered with a view to
legal relations and, an invitation has been
acceptedwith a view to create friendly relations and as a result it's
contract, and A cannot sue B in the court of law.
\.,
17. X ag
20144Jt
X and Y.
Ans:
'-'
Facts ~t
• \..f(
20
Issue~
•
W}
Princi~:
(Writ) "I j
Judge~1
to clac,
of the cor
'-'
18. Mr.I
ac~
ADS: \.;
.
• F-~·
16. X a minor borrowed from Y a sum of Rs. 10,000 the payment of the
loan was guaranteed by Z who is a major, X refuses to pay. Can Y hold Z
liable for the money?
Facts of the case:
• X a minor borrowed from Y a sum ofRs. 10,000.
• The payment of the loan was guaranteed by Z who is a major.
• X refuses to pay.
Issues in the case:
• Can Y hold Z liable for the money?
Principle:
• A contract with a minor is void and, hence, no obligations can ever arise
on him thereunder.
• The minor party cannot ratify the contract upon attaining majority unless
law specifically allows this.
• No court can allow specific performance of a contract with minors
it is void altogether.
Judgement :Based on the above rule Y cannot hold Z liable for the
money he lent to a minor.
~]
·V
Issues
• cYl
to pav
\..t
14
\.r
a gr.
• r
1..
'··.
::.
•• ,
••
,!'RACT
•
X agreedto let his hallto Y for somepublicentertain:::::O~:::st
i
2014. On 20 July, 2014 the hall was destroyed by fire Discuss, the rights of
X and Y.
f·
Ans:
c,
~
.•
IS~.
~e
,
SOCI
must
i.cepte
act.
•
••
)~e
{1tld Z
•
•
•
•
•
•
•
•w
er arise
unless a
ause
, Facts of the Case:
"
• X agreed to let his hall to Y for some public entertainment on 15t August
2014 . On 20th July, 2014 the hall was destroyed by fire.
Issues in the case:
• What are the rights of X and Y.
Principle: Doctrine of frustration, impossibility of performance.
(Write a few lines about Doctrine of Frustration in the exam)
Judgement: Based on the above principle Doctrine of Frustration Y has no right
to claim any damages due to the hall was destroyed by fire and the performance
of the contract has become impossible.
18.Mr.Lal offers to donate RS. 50,000 to the orphanage. The orphanage
accepts the offer, Can the orphanage recover.
Ans:
• Facts of the case:
• Mr.Lal offers to donate Rs. 50,000 to the orphanage.
• The orphanage recover the amount from Mr.Lal.
Issues of the case:
• Can the orphanage recover the amount through court of law. IfMr.Lal fails
to pay the amount.
Principle:
It's a gratuitous promise. One person promises to do something but the
other (you) does not promise anything. The promise to pay the donation is
not enforceable.
In legal language, "the offer to pay the donation Rs.50,000 a is not
supported by consideration" from the promisee.
As there is no consideration provided by one party, there is no contract.
Judgement:
Basing on t he above principle in the given case also the
orphanage cannot recover the amount through the court of law becausethere is
no consideration provided by one party, there is no contract at all. When
there is no contract there will be no question of enforceability of it in the
COurt.
J8 SERIES
59
LAW uF COlIjjRA(l~
19. Mr.Pradeep hired a godown from Mr.Dinesh for a period of ten months
and paid the whole rent to him in advance. After four, months the god Own
was destroyed by fire and Pradeep claimed a refund of a proportionate
amount of the rent. Is the claim valid.
Ans: Facts of the case:
•
•
•
•
20. Vi
release
the v~,
.
Fact~t
Mr.Pradeep hired a godown from Mr.Dinesh for a period often months
Mr.Pradeep paid the whole rent to him in advance
A ncr four ,months the godown \\ as destroyed by fire.
Pradeep claimed a refund of a proportionate amount of the rent.
Issues of the case:
•
\."
Is the claim ofPradeep valid?
Principle: There exist a valid and subsisting contract between The doctrine of ,
frustration is present in India u/s. 56 or the Indian Contract Act 1852. It says
that any act which was to be performed after the contract is made becomes
unlawful or impossible to perform, and which the promisor could not prevent,
then such an act which becomes impossible or unlawful will become void.
The conditions necessary for the application of Section 56
The parties:- Existence of a valid contract is the foremost condition for the
application of Section 56. The valid contract includes a contract entered into
between competent persons and which is followed by some consideration.
'\
.~I
Issu\):
• I~
Prin\_;
commit!
Codt\.('
property
any ~~
intim~(
isno~
Technil
•
•
• There must be some part of the contract which is yet to be performed:Section 56 will have applicability only if there is some part of the contract
which is yet to be performed and without performing it the ultimate purpose
of the contract is not fulfilled.
• The contract after it is entered into becomes impossible of performance:Another important condition for the application of section 56 is that the
contract after it has been entered into has become impossible to perform and
cannot be performed and therefore contract stands void.
Doctrine of frustration as enshrined in Section 56 of the Indian contract act
1872 deals with those cases where the performance of contract has been
frustrated and the performance of it has become impossible to perform due to
any unavoidable reason or condition. This doctrine is treated as an exception to
the general rule which provides for compensation in case of breach of contract.
But section 56 only deals with cases of subsequent impossibility as opposed to
cases of initial impossibility.
Judgement: Based on the above principle in the given case also Doctrine of
Frustration applies and Mr. Pradeep cannot claim the remaining months rent.
JB SERI
Ca~
prohihi
adop~
clear'-'i
cont\_;;
Jud~
A coei
to cCV
consen
~
21. 'n
salm\.t
Fact, ~
• TITr
• I\.,
•
•
o
TRACTS
I
I
el:0nths
e down
i.te
•
•
••
•
"
~
L~
>I_or the
into
•
•
rformed:ntract
~purpose
!e
>.nce:~
the
and
l.t
act
been
!ue
to
ep ion to
.tract.
'posed to
1
•
•
lAif
t.
II
~
I/i,
.ine of
52. It says
:.comes
:AJ.event,
•
20. A tells his wife that he would commit suicide if she does not give a
release deed in favour of his brother. She does so under this threat. Decide
the validity of this contract.
~
. _nths
~,d
LAW Of- (UNIKALI~
Facts
•
•
•
of the case:
A tells his wife that he would commit suicide.
He said so ifshe does not give a release deed in favour of his brother.
She does so under this threat..
Issues in the case:
• Is such contract is a valid contract?
Principle: Section 15 of the Indian Contract Act.1872 states that coercion is
committing or threatening to commit, any act is forbidden by the Indian Penal
Code (45 of 1860) or the unlawful detaining or threatening to detain any
property, to the prejudice of any person whatever. with the intention of causing
any person to enter into an agreement.
Coercion means forcing an individual to enter into a contract. When
intimidation or threats are used under pressure to gain the party's consent, i.e. it
is not free consent.
Techniques for causing coercion:
• Threatening to commit any act which is prohibited by the Indian penal
Code.
• Detaining not as per law or even threatening to detain any property,
with the sole intention of compelling a person to enter into a contract.
Case law: Ranganayakamma Vs Alwar Sett; In this case the widow was
prohibited from removing the corpse of her husband until she consented for the
adoption.
The court said that her consent was not free and it was coerced. It is
clear that coercion is committing or threatening to commit any act which is
contrary to law.
Judgement: Based on the above principle in the given case It is clear that
A coerced his wife give a release deed in favour of his brother by threatening
to commit suicide if she does not give in his brother's favour. So it is not a free
consent of A's wife. Hence it is a invalid contract.
21. The wife of person died from tin poisoning ca used by the tinned
salmon(fish)bought from a dealer. What damages can the husband claim.
Facts of the case:
• The wife of person died from tin poisoning.
• It was caused by the tinned salmon(fish)bought from a dealer
JB SERIES
61
LAW Uf- C.ONI HAC!S
Issues in the case:
• What damages can the husband claim
Principle: This case is similar to the case of DONOG HUE v DAVID
STEVENSON. In this case Donoghue was drinking a hottle of ginger beer in
a cafe in Paisley, Renfrewshire. Unknown to her or anybody else, a decomposed
snail was in the bottle. She fell ill, and subsequently sued the ginger beer
manufacum-. Mr Stevenson.
·
\.
I. '-'
---:T,-,-'
~6_2
2. Pro,
~
3. It cr
4.Ik
5 Con
I~l
6:
...,
lhe House of Lords held that the manufacturer
owed a duty
care to her. wh ich was breached because it \\ as reasonably foreseeable that
failure to ensure the product's safety would lead to harm to consumers.
was also a sutliciently proximate relationship bctv, ccn consumers and prod
manu Iacrurers.
Judgemel
has sUI
desire oTtl
timely U
money pn
Judgement: Same principle appJies to the given case also because it
reasonably foreseeable that failure to ensure the product's safety would lead
harm to consumers. There was also a sufficiently proximate relati
between consumers and product manufacturers. In the given case the dealer
liable to pay heavy damages to the person who lost his wife because consumi
the poisoned salmon (fish).
23. A, B a
DcomL)
V
Facts \;1
• A,
.
.~
~
Issues in t
22. A, who is B's friend seeks the help of a few persons in putting down a
fire in B's house. B promises to give a Rs 10,000 for his timely help. Can A
recover the amount?
Facts of the case:
• A, who is B's friend seeks the help of a few persons.
• He sought the help in putting down a fire in B'shouse.
• B promises to give a Rs 10,000 for his timely help. Can A recover the
amount?
Issues in the case:
•
PrinciI\.l
joint liabil
joint pt\J)
death, j (1in
A~
Can A recover the amount?
Principle: Consideration
According to section 2(d) of the Indian Contract Act "when at the desire
of the promisor, promisee or any other person has done or abstained fro
doing or does or abstains from doing or promises to do or to abstain
doing something such act or abstinence, or promise is called a
consideration for the promise."
Essentials
1. Something should be done or abstained from doing at the desire of
the promisor only.
v
"
U
V
• r
•
•
I
L/\\/'./or ccr~TR:\CTS
2. Promisee or any other person has done or abstained from doing
'-bi
3.
nger beer
i.mposed
4.
5.
6.
something at the desire of the promisor.
It can be Past, Present or Future.
It is not necessary that Consideration must be adequate.
Consideration must be real and not Illusory or impossible.
It must be Lawful.
r
Judgement:
As per the above principle in the given case Promisee (A)
has sought the help of a few persons in putting down a lire in 8's house at the
desire of the promisor ( 8 ). For that promised to pay him Rs 10.000 tor his
timely help. So it is a valid contract between B and A : So A can recover the
money promised by B to A.
>.
23. A, Band C jointly promise to pay DRs.
D compel C to pay him in full.
w
Facts of the case :
• A, 8 , Cjointly promise to pay 0 Rs 3000.
• A and B are untraceable.
Issues in this case :
• Can D compel C to pay him in full ?
ause it w
lead
~e.Jiltionsh
1l1eealer is
sum
Ana
pean
A
•
•
vtthe
•
•'.
~.sire
l~from
18l'from
SERIES
3000.A and untraceable.
Can
Principle: Section 42 of the Indian Contract Act, 1872 provides tor devolution of
joint liabilities in a contract. It states that when two or more persons have made a
joint promise, they are required to perform the promise jointly, and on one of theirs
death, jointly with the legal representatives of the promisor.
Anyone of joint promisors may be compelled to perform.-When
two or
more persons make a joint promise, the promisee may, in the absence of express
agreement to the contrary, compel any 1[one or more] of such joint promisors to
perform the whole of the promise
Judgement: As per the above given principle in the given case 0 can
compel C to pay him in full as per section 42 of the Contract Act 1872. Later C
is entitled to recover the money he paid on behalf of them. If they are traced if not
from their legal heirs.
__
000__
JB SERIES
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I
.....
.....
I
~
~
~
~
~
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~
~
~
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1
LLB 3(YDC) I SEMISTER
PAPER II - FAMILY LAW
CONTENTS
PART- A QUESTIONS
20.Scho~
2 1.Rest\l
22.Divo~e
3. Viodable marriage
23.Poly~ar
24.Expl~
25.Who~
26.What is,
4. Duties of Karta
27.WhaNl
5. Liabilities of Karta
28.Wha~
specC
1. Joint family
2. Maintenance
6. Judicial separation
7. What is a divorce? What are the grounds for dissolution of marriage?
8. Rights of Co- parcenary
9. Divorce
29. What a
regisW
V
30.Wh
Explalr
3I.Writk
32.Wh~
10. Hindu
II.Adultery
12.Pious obligation
13.Registration of Hindu marriage.
14.Woman's Estate
IS.Notional Partition
33. DefO
34.Differe
35.Exp~
fam\.,
36.Write ;
Act~t
17.Factum valet
37.Dis~
38.Expl::lt]
Gua~
18.Dwelling house
39.Expi.t
16.Conciliation
19.Adoption by widow
·40. Wh~
guardi:
.Wh~
•
•
•
•
•
•
•
•
•
•
•
;•.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
.JB
FAMilY LAW
TIONS
20.Schools of Hindu Law
21.Restitution 0 f conj ugal rights
22.Divorce by mutual consent
23.Polygamy
24.Explain how intestate succession of the property or Hindu male devolves.
25.Who is a Testamentary guardian? What are his powers?
26.What is a Valid Custom? And what are its requisites'?
27.What are the sources of Hindu Law?
28.What are the grounds for divorce under Hindu Marriage Act 1955? State
special grounds if any.
29. What are the ceremonies to be performed for the Hindu marriage? Is
registration compulsory? Explain.
30.What are the changes brought by the registration in the law of adoption?
Explain.
31.Write a note on Hindu woman's'
property rights.
32.What are the powers and functions of natural guardian?
33. Define marriage. What are the essentials of a Hindu Marriage?
34.Differentiate between judicial separation and divorce.
35.Explain different modes of partition Modes of Partition of joint property of a
family.
36.Write a brief account on the importance of Hindu succession (Amendment)
Act 2005.
37.Discuss the effects of Hindu adoption and Maintenance Act, 1956.
38.Explain the position of de facto guardian under the Hindu Minority and
Guardianship Act, 1956.
39.Explain the grounds for divorce under Fault Theory
40. Who is the guardian of a minor child? What are the powers of a natural
guardian?
41.Who is karta in Joint Hind family? And explain the powers ofkarta.
42.What is Pendent Lite? Explain.
JB SERIES
3
FAMilY
Family-law
vanb~5
•It 0fien
Part - A Answers
1. Joint
family
Ans. Joint family (also undivided family, is a large undivided family where
than one generation live together in a common house. joint family is a form of
where the grand-parents, father, mother, and children live unitedly under one
such form of farni ly system, every member:
•
•
•
•
•
•
Is expected to make some financial contribution to the common fund,
Share common rights in the household property.
Make efforts to safeguard the common property,
Co-operate, respect, and support each other,
Eat the food made at the common kitchen. and
Make their daily expenditure from common fund.
"r{
goodnes~a
.Sometiv
another inn
• High ea~1
• The cost 0
their cht..lr
the child re:
.In large~1
Since, pl1
particip~
feeling ~i
ion: JI
each ot~.
ily.
In such form of families, the son doesn't live separately after getting married.
he lives with his wife and children in the same house along with his other
members.
The eldest male member is usually the head of the joint family. His powers
functions are like that of a trustee. He is entitled to take economic and
decisions on behalf of the family.
Advantages of Joint Family
• It is based on a principle of fair economy.
• Naturally it imposes a kind of unwritten discipline that those who are more
economically shall share some of the burden of those who are not.
• The joint mess, naturally, runs on an understanding of mutual adjustment.
• Similarly in a big joint family the study groups of boys and girls are
according to their age matching.
• Naturally the cousins study together, play together, quarrel together and are
punished together.
• The basic necessities of all the family members are taken care of Each
guaranteed the minimum subsistence for living.
• It supports all the members of the family. Old and elderly people are
Proper care is taken for old, widowed, physically weak and disabled
members.
• As such the disciplines in a joint family are self-imposed on its members.
• Joint Family is an empowered form of family. The unity among its u."' ... ~
great strength to face and remove any obstacles with sheer courage.
• Finally, the spirit of oneness prevails in a Joint family system.
Interim
the~
Section
. FurtJte.r.
ar--l
pr~
••. f\.;
..All thes
•
•
•
•
•
FAMILY
•
I~here
t~of
e~ne
1.•
•
•
•
iI
FAMILY LAW
",;~'''I1I'Hlntages
of Joint Family
-It often creates parasites who love to feed on other's income. They exploit the
goodness and principled behaviour of its partners.
• Sometimes some crooked member of the family plot to torture and exploit
another innocent member of the family.
• High earning members often insults the low earning members.
• The cost of education has gone up high. The high earning members often want
their children to study in costly schools but they don't want to share the burden of
the children of the other members of the family.
-In large families, most of important decisions are made by the head of the family.
Since, all the individuals within the family doesn't get the opportunity to
participate in major decisions of the family, they often feel lost or develop a
feeling of inferiority complex.
lusion: Joint family can be run successfully if the members remain committed
each other. The felling of togetherness and selflessness is the essence of joint
ily.
T~d.I
~er
ns. "Maintenance" is an amount payable by the husband to his wife who is unable
maintain herself either during the subsistence of marriage or upon separation or
plvers
Maintena nee (pendentelite)/ Interim maintenance
emporary maintenance is granted by the court during the pendency of proceeding
•
divorce or separation to meet the immediate needs of the petitioner.
_~"U~I Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife
•
be granted relief if the court is satisfied that the applicant has no independent
~emore _ncolme sufficient for his or her support and necessary expenses of the proceedings
•
under the Act.
le..!Jl.
Interim maintenance may also be claimed under Section 125 CrPC by the wife
•
the pendency of proceeding for regarding monthly allowance for maintenance
Section 125(1) CrPC.
Furthermore, Section 36 of Special Marriage Act, 1954, Section 39 of the Parsi
and Divorce Act, 1936 ,Section 36 of Divorce Act, 1869 which applies to
persons professing Christian religion,also make provisions for the wife to seek
expenses from the husband .while the suit is pending.
All these provisions specify that the application for interim maintenance has to
be disposed of within sixty days of service of notice on the respondent.
CtJ1d
•
•
JB
Permanent Maintenance
It is the maintenance granted permanently after the disposal of the proceeding
for divorce or separation. According to Hindu Marriage Act, 1955, Section 25 andApplicant, either wife or husband is entitled to receive from the spouse for his/her
~ai~tenance and support a gross sum or monthly or periodical sum for applicant's
. lIfettme or until he/she remarries.
JB SERIES
5
FAMILY
According to Hindu Adoption and Maintenance Act, 1956. Section 18 a Hi
wife is entitled to be maintained by her husband during her lifetime. It may also
noted that Section 19 of this Act makes a provision for a widowed wife to
maintained by her father-in-law.
3. Th¥:
of kr-o:
4.No~)I
....
Criminal Procedure Code. 1973, Section 125 - This section provides
maintenance not only to the wilt but also to child and parents.
However, wife shall not be entitled to receive maintenance if she is living in adul
'-'
on
or refuses to live with husband without any sufficient reasons, or living s
r::JTPlI'n"otf'
th.
with mutual consent.
'Manage\.;)
Muslim Women (Protection of Rights on Divorce)' Act 1986. Section 3- Following
divorced Muslim woman is entitled to a reasonable and fair provision
• Ma\.It
maintenance to be paid to her within the iddat period by her former husband;
or not
amount equal to the sum of mahr or dower agreed to be paid to her at the time of
me~
marriage or at any time thereafter according to Muslim law;
anq:f
;!~~~
'\..tl
3.Viodable marriage
Ans. A marriage is voidable on the option of either side of the party is known
voidable marriage. It will be valid unless the petition for invalidating the marri
made. This marriage is to be declared void by a competent court under the
Marriage Act, 1955. The parties of such marriage have to decide whether they
to go with such marriage or make it invalid.
The grounds where marriage can be termed as voidable:
• The party to the marriage is not capable of giving consent due to
unsoundness of mind. So, this a ground of voidable marriage.
• The party is suffering from mental disorder which makes her unfit
reproduction of children. Then this can be a ground for voidable marriage.
• If the party has been suffering from repeated attacks of insanity then this
also be a ground for voidable marriage.
• The consent of marriage by either of the parties is done by force or by
then it will be a voidable marriage.
• If either of the parties are under-aged, bridegroom under 21 years of age
. bride under 18 years of age. (Now the govt introduced a Bill in P
making 21 years compulsory for both boy and girl for marriage) then it can
be considered as voidable marriage.
• If the respondent is pregnant with a child of someone other than the bri
while marrying. Then the marriage would be voidable.
Necessary conditions to be fulfilled by a petition under Section 12 for n
Voidable Marriage
1. On the plea of fraud or application of force on marriage, a petition can be
before the court within one year of discovery of such fraud or app}'
force.
2. The allegation based upon which the petition is filed was beyond the
of the petitioner at the time of solemnization of marriage.
rig~
• M~i
wedTo
in \.tl
is the
fan\..;)
he'IU
• Re'-«,
the fq]
ifa~
an\;
Reprl
K"
have
peV
Karta
\;
.-
r
•
•
18 a H'
~
also
1
i
FAMilY LAW
3. The petition on such an allegation must be presented in the court within one year
of knowledge of such facts.
4. No sexual relationship is established after knowing about alleged facts.
fe to
Duties of Karta
ns. Karta means manager or joint family and joint family properties. 1 le is the
who takes care of day to day expenses of the family looks after the family and
the joint family properties ... In the entire Hindu Joint Family 'Karia' or
occupies a very important position.
~~n
3
)lJII!lOn
h_and;
: M'ne of
•
•
•CW
~.fit
!age .
• his
Following are the duties of karta
• Maintenance: All the members of the Hindu Joint Family whether coparcenary
or not have a right to maintenance. It is the duty of the Karta to maintain all the
members. No member of the family can be deprived of the right to maintenance
and if they areneglected they can challenge it before the court and claim their
right and arrears of maintenance.
• Marriage: Karta has a duty to engage the unmarried members of the family in
wedlock especially of daughters as their marriage is considered to be sacrosanct
in Hindu law. In the case of Chandra Kishore v. Nanak Chand, it was held that It
is the duty of the Karta to bear all the expenses of the marriage from the joint
family funds, or if in a case the expenses are incurred by some other sources
he'll have to reimburse them when asked.
• Render accounts: In Hindu law, a Karta is not under the obligation to maintain
the family business account, but he is under the obligation to render the accounts
if any coparceners demand it at the time of partition. He can be held liable for
any misappropriation or fraud.
• Representation: The senior-most member of the family commonly known as
Karta is the one who represents the Joint Hindu Family. The family does not
have a corporate existence; it acts through its Karta. The Karta is bound to
perform functions like paying all the taxes, dues etc on behalf of his family.
Karta can also be sued on behalf of his family.
5. Liabilities of Karta
Ans. Following are the liabilities of kart a
1. Liability to maintain: The Karta of the Hindu Joint Family is liable to maintain
•
all the members of the joint family. All the members of the Joint Hindu Family
have a right to maintenance and residence. If the Karta is unable to maintain them
he can be sued for the same and the member can claim their arrears of
maintenance.
2. Liability to spend reasonably: The Karta also has the power to spend funds from
the joint family account. But such power is limited to some restrictions such as the
Karta cannot use the funds for unlawful purposes and also he should spend it
know
JB SERIES
7
FAMILY
~L----'-'~
wisely. If any of the coparccncrs is not satisfied with the spending made by~, • Lepros~IJ
Karta he/she can file a suit against the Karta and discover the truth.
-»
of lepro:--"
3. Liability not to alienate property: The Karta is allowed to alienate the J • Venere:r'd
Hindu Family Property only in certain cases such as legal necessity, the bene
commu\.,;a
the estate, in case of indispcnsahle
duties. If he wrongfully alienates the
• Renounced
then the coparceners have a right to challenge the alienation.
any reli~l
4. Liability not to start a new business: The Karta of the family is under • Has not be
obligation not to start a new business without the prior consent/permission
not kno~
coparceners of the Joint Hindu Family. Once the coparceners expressly
impliedly have given their consent. the Karta can start a new business.
5. Liability to render accounts: Until the family remains joint the Karta has
~
obligation to maintain the accounts. But as soon as the partition takes place
.Husba~l
Karta is under an obligation to render the accounts of Joint Family Property.
commence I
Conclusion: The concept of Karta in a Joint Hindu family is not only a
.remarrl~t
position in a family rather it serves an important practical purpose. He is not a t
the other w
partner or an agent of the family but is the head of the family who runs it in the
possible way.
Rape, ~
bestiality. t
'Marria~
6. judicial separation.
solemnized
Ans. Either party to the marriage, whether solemnized before or after comm
re~(
of the Hindu Marriage Act, 1955 can under. Section 10 of the Act tile a petit
aintec
judicial separation. After a decree is passed in favour of the parties, they
case oT:
bound to cohabit with each other. Some matrimonial rights and obligation,
alIo,\)
continue to subsist. They cannot remarry during the period of separation. They
liberty to live separately from each other. Rights and obligations remain s
during the period of separation. The grounds for judicial separation are same
divorce.
Under Section
grounds:
13(1), judicial
separation
may
be sought
on the
• Adultery: If other spouse had a. voluntary sexual intercourse with any
other than his or her spouse after solemnization of marriage.
• Cruelty: If after solemnization of marriage, one of the spouse treats
with cruelty.
• Desertion: If the other party has deserted the spouse for a continuous
years without any reasonable ground immediately preceding the pres
the petition.
• Conversion: If one of the spouses has ceased to be a Hindu.
• Insanity: If the other party is of unsound mind or has been suffering
from mental disorder of such a kind and to such an extent that the
cannot live with the other party.
•• r
•
•
FAMilY LAW
FAMilY
l~made
by • Leprosy: If the other party has been suffering from a virulent and incurable form
•
of leprosy.
ienate the
• Venereal disease: If the other party has been suffering from venereal disease in a
communicable form.
y'~e
n ...n",~••e
:e~the
• Renounced the world: If the other spouse has renounced the world by entering
•
any religious order .
y~ LInder • Has not been heard alive for seven years: If the other party's whereabouts are
not known for seven years.
tiPcrmission
sexpressly
ss.
~.rta
has
takes place
>_erty.
~Iy a
IS"III'ot a
•
h~ny
•
•
.ats the
•
addition to these grounds
en:
some of the grounds
are exclusively ,reserved
for
• Husband has more than one wife living: If the husband had married before the
commencement of the Act and after the commencement of the Act has again
remarried either of the wives can present a suit for judicial separation provided
the other wife is alive at the time of presentation of the petition.
• Rape, Sodomy or Bestiality: If a man is guilty of offense like rape, sodomy or
bestiality, the wife can present a petition for judicial separation.
• Marriage before the age of fifteen years: If the marriage of women was
solemnized before attaining 15 years of age. on her attainment of 15 years she
could repudiate it but before attaining the age of 18 years.
n maintenance be claimed by wife during the period of judicial separation?
the case of SohanLal vs. Kamlesh it was held that in case of judicial separation, a
is allowed to claim maintenance from husband in case she is not able to maintain
If.
to do in case after judicial separation where the parties want to resume
·cohabitation?
Since a decree for judicial separation is a judgment in rem, if the parties want to
resume cohabitation, it is necessary for them to get the order of judicial separation
annulled by the court. Normally, the court rescinds (cancels) the decree on
presentation of the petition by consent of both the parties.
What is the purpose of a judicial separation?
.
·judicial Separation is a step prior to a divorce. The purpose of judicial separation is to
provide an opportunity to the parties to reconcile their difference.
7. What is a divorce? What are the grounds for dissolution of marriage?
Ans. Divorce, also known as dissolution of marriage, is the process of terminating
a marriage or marital union. Thus dissolving the bonds of matrimony between a
married couple under the rule of law of the particular country or state. Divorce puts
an end to the marriage and all mutual rights, and obligations stand terminated. The
parties are free to marry again.
JB SERIES
9
Grounds for Divorce:
The following are the grounds for divorce in India mentioned under the
Marriage Act, 1955.
a. Adultery -Voluntary sexual activity (as sexual intercourse) between a
man and someone other than his \\ ire
b. Imprisonment:
The husband has been under imprisonment for seven
years.
c. Cruelty - A spouse can tile a divorce case when he/she is subjected to
of mental and physical injury that causes danger to life, limb and health.
sexual act etc are ,included under crucltv.
.
d. Desertion - If one of the spouses voluntarily abandons his/her partner for
a period of two years, the abandoned spouse can file a divorce case on the
of desertion.
e. Conversion - In case either of the two converts himself/herself into
religion, the other spouse may file a divorce case based on this ground.
f. Mental Disorder - If the spouse of the petitioner suffers from incurable
disorder and insanity the other spouse may file a divorce case based
ground.
g. Leprosy - In case of a 'virulent and incurable' form of leprosy, a petition
filed by the other spouse based on this ground.
h. Venereal Disease - If one of the spouses is suffering from a serious
which is sexually transmitted like AIDS, divorce can be filed by the other
1. Renunciation
- A spouse is entitled to file for a divorce if the other
worldly affairs by embracing a religious order.
J. Not Heard Alive - If a person is not seen or heard alive for a
of seven years, the person is presumed to be dead ..
K. No Resumption of Co-habitation - It becomes a ground for di
couple fails to resume their co-habitation after the court has passed a
separation.
8. Rights of Co- parcenary.
Ans. As per the Hindu Succession Act, 1956, any individual born in a
Undivided Family (HUF) becomes a coparcener by birth. Both sons and
are coparceners in the family and share equal rights and liabilities over the
• Community of interest and unity of possession: No coparcener is
exclusive possession of any part of the coparcenary property;
coparcener entitled to any special interest in such property.
o Thus, if a coparcener erects a building on land belonging to the joint
to materially alter the condition of the property, he may be
injunction from doing so.
i...---
~
_
•
FAMILY LAW
'eat
*gro
•
•
Ion can
r.if
decree
•
•
• Community of interest and right to savings: No coparcener has got a defined
share in coparcenary property or income thereof and as long as family in
undivided. he cannot predicate that he has certain share in the family property,
The entire income must be brought to the common purse and used by all members
of undivided family,
• Right to joint possession: Each coparcener is entitled to joint possession and
enjoyment of the family property and ifhe is prevented by other coparcener from
doing so. he is entitled to an injunction restraining that other coparcener from
disturbing his possession and enjoyment.
• Right to enforce partition : Every coparcener. whether major or minor. is
entitled to call for the partition of his share against his father, brother or
grandfather irrespective of whether the other coparceners agree to become
divided or not.
• Right to restrain
unauthorized
act : A coparcener may restrain any
unauthorized act (for example, erection or wall or building etc.) of other
coparceners in respect of coparcenary property if such act interferes in joint
enjoyment and causes substantial injury to the property or rights of other
coparceners.
• Right to ask for accounts: A coparcener may demand an account of the
management of joint property so that he may know the actual state of family
funds when the coparcener is suing for partition, .If such demand is met by
refusal, he is entitled to restrain the other coparceners for excluding him from
management thereof
• Right to enforce partition: Every adult coparcener is entitled to enforce a partition
of a coparcenary property. He cannot, however, file a suit for a declaration of the
amount of his share, as he has no definite share, until partition.
• Right to account: A coparcener has no right to ask for accounts from the manager
as regards his dealing with the coparcenary property and the income thereof,
unless of course, such coparcener is suing for a partition, in which case, he would
have such a right.
• Right of alienation: No coparcener can dispose of his undivided interest in
coparcenary property by gift. Nor can he alienate such interest for value, except
in the State of Tamil Nadu, Madhya Pradesh, Maharashtra and Gujarat. An
unauthorised alienation is not however, absolutely void; it is merely voidable at
the option of the other coparceners.
• Right to impeach unauthorised alienations: Every coparcener has the right to
impeach alienation by the manager, or any other coparcener, in excess of their
powers.
• Right to renounce: A coparcener has the right to renounce his interest in the
coparcenary property. He can do so by expressing his intention to that effect, and
ifhe does so, no other formalities would be necessary. Such a renunciation must,
however, be in favour of the whole body of coparceners. Even if he renounces in
JB SERIES
11
favour of one individual
all the coparceners.
• Right of survivorship:
member, the renunciation will operate for the
All the coparceners of a joint Hindu family have a
of survivorship in respect of the joint family property. Thus, if one
dies. his undivided intere~t in .such family passes by survivorship to the
coparceners, and not to his heirs by succession.
c·'-1e
\.;'
al an
~I
a de:
• Right to make self-acquisition:
A coparcener has the right to acquire
. his own, and keep it as his self-acquired property. The other coparceners
have no claim on such property.
• Right to manage: A coparcener, who is the senior-most member of the
entitled to manage the coparcenary property and business, and to look
interests of the fa~ily on ~ehalf of the other coparceners, unless
incapacitated from domg so by Illness or other like and sufficient cause.
9. Divorce
Ans. Divorce, also known as dissolution of marriage, is the process of
a marriage or marital union. Thus dissolving the bonds of matrimony
married couple under the rule of law of the particular country or state.
laws vary (differ) considerably around the world, but in most countries,
requires the sanction of a court or other authority in a legal process,
involve
issues
of distribution
of
property.chil.]
custody,alimony
support), child visitation / access, parenting time, child support, and division
In most countries , monogamy is required by law, so divorce allows each
partner to marry another person.
Divorce is different from annulment, which declares the marriage
void, with legal separation .~ivorce takes place when a court or other
body legally dissolves a marriage.
How to avoid a divorce?
Unless there are irreparable issues of abuse it is possible to
dissolution and let a marriage survive by various means possible, such as
counselling from a family lawyer or apsychologist. Saving your marriage
of effort and it can even happen if you are separated but still want to get
some time.
The effects of divorce on children can be short or long term. To
them, you need to begin by making them a part of your discussions around
things will change and how you can cope. One of the best divorce advice to
cope with this phase is to legitimize their feelings. Knowing how it
what to say, and knowing how to co-parent once the divorce comes through
things better for everyone involved.
b~j
en C
cJ\.t
•
•
FAMilY LAW
The Supreme Court has observed that the word Hindu is derived from the word
, otherwise known as Indus river. Thus, the term Hindu had originally a
.~~._'t,"\rl':lland not a creedal significance. It implied residence in a well defined
ical area. Today, the term 'Hindu' has lost its territorial significance. It is
not a designation of nationality.
ndu by Birth: Following persons are deemed to be Hindus by birth:
i) When both the parents are Hindus: Children born of Hindu parents are Hindus.
Such a child may be legitimate o~ illegitimate. It is also immaterial that such a
child does or does not profess, practice or has faith in the religion of its parents.
When one Parent is Hindu: When one of the parents of a child is Hindu and he
e fami
is brought up as a member of Hindu family, he is a Hindu. It is clear by the
).fief
explanation (b) of Section 2( 1) of Hindu Marriage Act, 1955 that child's religion
he
is not necessarily that of the father.
For instance a child is born of Hindu mother and Muslim father. The child is brought
up as a Hindu. Subsequently, mother converts to Islam. Nonetheless the child is
. In Ram Prasad v. DahinBibi, is a good example on the point.
n ......
".".--
•
1.1
•
Hindu by Religion :Converts and Reconverts to Hinduism: Under the codified
Hindu law any person converted to Hinduism, Jainism, Buddhism or Sikhism is a
Hindu. The Supreme Court in Perumal y. Poonuswami, observed that a person may
be a Hindu by birth or by conversion. No formal ceremony of purification or
expiation is necessary to effectuate conversion. But at the same time a mere
_Inct_ theoretical allegiance to the Hindu faith by a person born in another faith does not
convert him to a Hindu, nor is a bare declaration that he is a Hindu sufficient to
convert him to Hinduism. But, a bona fide intention to be converted to the Hindu
faith accompanied by conduct unequivocally expressing that intention may be a
sufficient evidence of conversion.
Any person who is a Hindu by religion or born in Hindu family with Hindu
father or mother in any of its forms such as Virashaiva, a Lingayat or a follower of
the Brahmo, Prarthana or AryaSamaj or any person who is a Buddhist, Jain, or Sikh
is also a Hindu by religion. Thus, any person except a follower of Muslim, Christan,
Parsi, or Jew religion is a Hindu .
. 11. Adultery .
Hindu law books are very severe against adultery, not only for moral reasons
but also for social reasons. They consider that it would lead to confusion of castes,
degradation of family values and social disorder. In olden days women from upper
castes were barred from moving in society freely.
. ADS.
Adultery is no longer a crime, the Supreme Court ruled today. The judgment
by a five-judge Supreme Court bench headed by Chief Justice DipakMisra has
Overturnedthe previous three rulings on the matter.
JB SERIES
r
r
'-'
13
Under Section 497 of the Indian Penal Code (IPC) Adultery was an 0
and a convict could be sentenced to five-year-jail term. Section defined adultery as
offence committed by a man against a married man if the former engaged in
intercourse with the latter's wife.
The law had come under sharp criticism for treating women as possession 12.Pious o'Mi
men. An Italy-based Indian businessman Joseph Shine. who hails from Kerala, fi
ADs.The c~
Public Interest Litigation (PIL) last year challenging JPC Section 497. He con
non-r-a:
that the law is discriminatory.
. Hen~'
HIGHLIGHTS I What Supreme Court said while striking down Section 497
immoral a~i
Section 497 reads: "Whoever has sexual intercourse with a person who is
must be
whom he knows to be the wife of another man, without the consent of that man, ""_',naT a man\..,J
sexual intercourse not amounting to the offence of rape. is guilty of the offence :bepaid before
adultery."
ThM
Section 497 used to be read with CrPC Section 198(2) in the matters the grandfarhe
prosecution lor offences against marriage. The combined reading of the adultery
grandson n~(
allowed the aggrieved husband of the married woman in adulterous relationship father) for ~-~i
file a complaint. But same right was not available to an aggrieved wife ifher
or wrath, one
was found to be in an adulterous relationship.
father.
\..t
FIRST SUPREME COURT JUDGMENT
The adultery law first came under challenge in 195] in the Yusuf Aziz
State of Bombay case. Petitioner contended that the adultery law violated
fundamental right of equality guaranteed under Articles 14 and 15 of
Constitution.
The dominant argument in the court hearing was that Section 497, go
adultery law, discriminated against men by not making women equally culpable
adulterous relationship. It was also argued that adultery law gave a license to
to commit the crime.
The next important judgment regarding adultery law under Section 497
in Sowmithri Vishnu versus Union ofIndia.
In Sowmithri Vishnu case, the Supreme Court held that women need not be .
as an aggrieved party in the name of making the law even handed. It also ..,""L,.......to why women should not be involved in prosecution in the cases of adultery.
The Supreme Court held that men were not allowed to prosecute their
for the offence of adultery in order to protect the sanctity of marriage. For the
reason, women could not be allowed to prosecute their husbands. The j
retained the offence of adultery as a crime committed by a man against another
The Supreme Court also rejected the argument that unmarried women
be brought under the purview of the adultery law.
The argument was that if an unmarried man establishes adulterous relationship
married woman, he is liable for punishment, but if an unmarried woman engages
sexual intercourse with a married man, she would not be held culpable for the
of adultery, even though both disturb the sanctity of marriage.
Yajyav
spirituous
\.U11JU1U of a to
the dea'-" I
'-'1
•
•
•
•
•
FAMILY LAW
FAMILY
The Supreme Court held that bringing such an unmarried woman in the ambit
adultery
law under Section 497 would mean a crusade by a woman against another
l.tery
~ed in <;!"'''''WV1''~' The ambiguity related to adultery law remained unresolved.
is an
wession
~~la,
I_onte
The concept of pious ohligation has its origin in Dharmashastras. according to
non-payment or debt is a sin which results in unbearable sufferings in the next
Hence the dehts must he paid off in all circumstances provided it was not for
497 .WIIU1\J1LU and illegal purposes. Vrihaspati has said, "If the father is no longer alive the
1 who is
must be paid by his sons. The father's debt must be paid first of aIL and after
.an,
a man's own debts, but a debt contracted by the paternal grandfather must always
e offence
paid before these two events.
ie
•
The father's debts on being proved, must be paid by the sons as if their own,
~atters
grandfather's debt must be paid by his son's son without interest but the son of a
ery
grandson need not pay it at all. Sons shall not be made to pay (a debt incurred by their
_nsh
.father) for spirituous liquor, for idle gift, for promises made under intluence of love
her uu'-'u.- or wrath, or for surety ship, nor the balance of a fine or toll liquidated in part by their
•
father.
Yajyavalkya says, "A son has not to pay in this world father's debt incurred for
A!z
spirituous liquor, for gratification of lust or gambling, nor a fine, nor what remains
·i.ted
unpaid of a toll; nor idle gifts." But in case of debts for purposes other than the above,
15 of
on the death of the father, or on his going abroad, or suffering from some incurable
•
disease, the debt contracted by him would be payable by his sons and grandson
The Mitakshara has presented the entire proposition in stronger words.
According to it when the father has gone abroad or is suffering from some incurable
"""...-; disease, the liability to pay the debt contracted by him would lie on the sons and
grandsons irrespective of the fact that the father had no property. There are reasons
for fixing this liability on sons and grandsons. The liability to pay the debt is in the
order, viz., in absence of father the son and in absence of son the grandson.
It is worth noting that the doctrine of pious obligation does not extend the liability to
Jemales notwithstanding she has been given a share in the joint family property on
partition. Where the wife gets a share on partition between husband, sons and herself,
still she would not be under any obligations to pay the debt of the ancestor (father).
13. Registration of Hindu marriage.
Ans. In 2006, the Hon'ble Supreme Court ofIndia made it mandatory to register all
marriages. In India to get married the eligible age for males is 21 years and 18 years
for females, the process of registering the marriage is applicable only for the
mentioned age for both men and women.
A marriage certificate is an official statement that establishes the marital
status of a couple. A marriage certificate acts as a legal proof of registration of a
JB SERIES
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i
15
marriage, an important document on which one can rely to prove that the parties
legally married to each other. The marriage certificate could be used for
purposes also like obtaining a passport, applying for an income certificate, chan
one's middle name, etc.
Registration under the Hindu Marriage Act, 1955
The act is applicable in situations wherein both husband and wife are
Buddhists, Jains. or Sikhs or they both have converted their religion into any of
religions. There are certain conditions that are required to be fulfilled as per
Hindu Marriage Act, 1955 after which the marriage between the parties will
considered legal and valid. Sec.S and Sec. 7 of the Act specifics these conditions.
• Section 5 of the act states that both the parties must be Hindus then only
marriage will be considered as a valid marriage.
• Section 7 of the act that Hindu marriage would be solemnized by following
Customary rites and ceremonies of either of the parties.
If the marriage is not registered then both the parties cannot (1\ ail
accessing the legal rights which are associated with the marriage.
14.Woman's
Estate.
Ans. After the enactment of Section 14 under Hindu Succession Act,
the women's estate has come to an end. Now all the properties acquired prior
after the passage of the Act have
Under the old Hindu law woman's estates were of two types-
• With t1'ferc
• For reli'''~c
)0> She ab~h
the es\.;
binding UJ
\....
);;>
She could
but if~l
reversione
);;>
She ha\,.;t
properties
as a r~(
properr I
);;>There~i
nor de\.".;l
);;>
She could
);;>
She ccvJ
);;>
She could
She wss-r
Her right
She C~I
changC~
otion()
1. Stridhan, of which she was the absolute owner;
2. And women's estate over which she had limited ownership.
Sources of Property:
There were two sources of acquisition of property1. Properties inherited from males.
2. Property inherited by female from females.
Properties thus inherited, according to Bengal, Benaras, Mithila and Madras
gave the woman limited rights and after her death, it did not go to her own
to the heirs of absolute owner.
Incidents of Women's Estate:
Some of the incidents of women's estate are as under) She was owner of the properties inherited by her from her husband, but
under the following conditions, she could neither sell the property nor c
mortgage it nor could she alienate it• For legal necessity;
• For benefit to the estate;
Before t
a~.
"
,•.
FAMILY LAW
::'we
of
d as per
:.
will
ditions.
I.only
•
_•t,
prior
•
•
•
•
•
• With the consent of the next reversioners
• For religious and charitable purposes.
~ She absolutely represented the estate; she could institute a suit herself relating to
the estate and could defend it. Decrees passed against the estate were not only
binding upon her but also against the reversioners.
~ She could also institute a suit against third persons for possession of the estate,
but if she had allowed the adverse possession of third persons. then the
reversioners were not bound by such adverse possessions.
,~ She had the rights over the estate as a prudent owner; being the owners of the
properties acquired as limited owner, she was entitled to administer the property
as a reasonable person and she had the power to exercise her rights over the
property liberally as that of the karta 0 f the joint Hindu family.
The restrictions upon the right of disposition of the estate were neither qualified
nor dependant upon the existence or non-existence of the reversioners.
She could alienate her life interest in the estate through mortgage. sale or gift.
She could spend the whole income; she was not bound to share the income.
She could claim partition from the collaterals.
was not under the control of her relatives.
right over the estate came to an end upon remarriage or on adoption a child.
could not transform the woman's estate into some other form so as to
,..··~Jul::."its nature either by some declaration or by some act.
the amendment in the Hindu Succession Act, 1956, female heirs were
a share in the ancestral property.
to Section 6 of the Hindu Succession Act, 1956 when the person dies
only male heirs were regarded as coparceners but female heirs (including
and Wife) were not.
Was given to females in this 1956Act. Even the wife was also not given
in the coparcenary property as she was not considered as a direct
the deceased person.
.
Indian legislature made some amendments to the Hindu Succession Act,
can see specifically
under Section 6 of the Hindu Succession
) Act, 2005,it provided that the devolution of the property will be
the .survivorship if there are only male heirs in the family and no female
ly has both male and female heirs, then the concept of survivorship
the devolution will Occur to the heirs prescribed by the law.
or changes introduced by the amendment in the Act are as follows:
JB SERIES
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FAMILY
1. All the heirs will have equal rights irrespective of gender and
considered coparceners by birth.
2. The daughter of a deceased person has the same entitlement on coparce
•
property as the right of a son.
other~l
3. There is no difference when it comes to the liabilities, just as rights arc equal,
• There w
also, the liabilities.
invit\.;)
4. Similarly, female's three-generation such as daughters, granddaughters,
• If the ot
great-granddaughters arc also entitled as in the case of male heirs.
from'-'e
5.. Debt repayment does not transfer to the descendants and it ends when
.
the Invit
debtor dies.
Adv~ntage~'
6. Thes~ ~me~dme~ts ~re only applic~ble ~o a Hindu whose property interest'
1. Evirop
to a jomt Hmdu family and who dies either testamentary or intestate after
Con~
commencement of the Amendment Act.
2. SitU,
7. The female heirs who are eligible to inherit are classified as follows:
3. There
a. The daughter(s).
4. Th\.;ll
b. The daughter's-daughter's
sorus),
5. The co
c. The daughter's-daughter's
daughter(s),
Disadvant¥
d. The daughter's son's daughter(s), and
1. Concil
e. The son's daughter's sorus) (the predeceased great-granddaughter which
upo~l
only applicable if the male heir or the grand is predeceased)
2. Thel:
3. The,.,r
16. Conciliation.
Ans: Part III of the Arbitration and Conciliation Act, 1996 deals with conci
is a voluntary proceeding where parties in dispute agree to resolve their
through conciliation.
It is a flexible process which allows the parties to decide the time and
for conciliation, structure, content and terms of negotiations. In Conciliation,
conciliators are trained and qualified neutral person who help the conflicting
to make them understand the issues in dispute and their interest to reach
accepted agreements. The conciliation process includes the discussion between
parties which is made with the participation of the conciliator.
It covers many disputes like industrial disputes, marriage disputes, family
etc.
Conciliator :Section 64 deals with the appointment of conciliator. There is no
of agreement like arbitration agreement. The acceptance of settlement is
both of the parties.
Generally, there is one conciliator for the settlement but there can be more than
conciliator, if the parties have requested for the same. If there is more than
conciliator then they will act jointly in the matter. which states that if there is
than one conciliator then the third conciliator will act as the Presiding Concili
Kinds of Conciliation
1. Voluntary Conciliation-
17. Factuf\_;:
It is a La
It literally \.;'
,
~
of the
~
'''VU''-l
h
o'-c
Nowm
ap~
~
•r
•
••
•°i
I
FAMILY LAW
,!,ILY
ley
will
rc
'~qual,
~_rs,
_en
.est
e after
••
•
....vu_
2. Compulsory Conciliationrocedure of Conciliation: Section 62 discuss the initiative of conciliation will start
• When one party will send Written invitation to conciliate upon the matter to the
other party.
• There will be the commencement of procedure if the other party accepts the
invitation in writing to conciliate.
• If the other party rejects the invitation or interested party does not get a reply
from the other party within Thirty days then it will be treated as a Rejection
the Invitation.
Advantages of conciliation
1. Evidences or any other information which are used during the process are
Confidential.
2. Simple procedures which can be easily followed by the general people.
3. There is no chance for delay.
4. The parties can choose conciliator.
5. The conciliation is cheap as compared to court litigation.
Disadvantages of conciliation
1. Conciliator is not a legally qualified person and his decision is not binding
upon the parties.
2. There is high possibility of delivering injustice.
3. The process of sending and receiving information sometimes leads to mixed
and incorrect information .
or
17. Factum valet.
Ans. It is a Latin maxim - 'factum valet quod fieri non debuit'
It literally means that 'what ought not to be done, become valid when done it
already.'
Certain formalities stipulated in the old Hindu Law were 'directory' or
recommendatory. Violation of such formalities were cured by this doctrine. such
violation of the guidelines in the ancient texts could be cured as if it was not
prohibited in anywhere in the ancient texts.
If such formalities are 'mandatory' in nature, then this doctrine cannot be applied to
cure such defect.
In the ancient text, the father had to give consent for the marriage of his minor
daughter given in marriage to a boy. In the absence of the father, his wife i.e. the
mother of the girl gave such consent to such marriage. In the ancient Hindu text, only
the father had to give such consent and not the mother. Though it was not prohibited,
the mother had done it. Such defect in giving consent was cured by applying this
principle of factum valet.
Now most of the Acts, Rules are mandatory in nature and hence this doctrine is
seldom applicable.
JB SERIES
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19
Effect of Hindu
Valet:
Adoptions
and Maintenance
Act on the Doctrine
• Who i~(·
• Ifman~.JI
The doctrine of Factum Valet is sometimes involved in the law of adopt"
Sri Balusu v. Sri Balusu, 22 Mad. (PC) 398, the question arose whether an only
could be given in adoption. The Mitakshara forbids the giving of an only son
adoption.
Nayeko Putra Deyaha (An only son should not be given in adoption).
Na Jyeshta Putra Deyaha (The eldest son should not be given in adoption}.ln
case an only son was given in adoption. It was urged that though there is a
Law text forbidding such an adoption, the infirmity was cured by the applic
the doctrine of Factum Valet. The Latin Maxim means that what ought nothe d
valet when done. If the text in question is only recommendatory, then this
may be applied and the adoption can be upheld. It was held that the text was
directory and so the adoption of an only son was held to be valid notwithstandi
prohibitory text of the Mitakshara.
• WhOSehl
• Has c~I
• Has cease
• Has be\rt
has the "a
~
18. Dwelling house.
Ans.Historically, and also ironically, women under Hindu Law were not enti
any share in the immovable or movable property either as a daughter or as a w
their ancestors. However, in some capacities women were given the Right to
property,but the same were only a limited right of enjoyment to the Property.
India became Independent, some amendments were made in Hindu law
property ...
Special provision respecting dwelling houses
Where a Hindu intestate has left surviving him or her both male and
heirs specified in class I of the Schedule and his or her property includes a
house wholly occupied by members of his or her family, then, notwi
anything contained in this Act, the right of any such female heir to claim
the dwelling-house shall not arise until the male heirs choose to divide
respective shares therein; but the female heir shall be entitled to a right of
therein:
Provided that where such female heir is a daughter, she shall be
right of residence in the dwelling-house only if she is unmarried or has been
by or has separated from her husband or is a widow.
19. Adoption by widow.
Ans. Capacity of a female Hindu to take in adoption. -Any
• Who is of sound mind,
• Who Is Not A Minor, And
female Hindu-
••. In that._;
this restrrc
, or a fU
restriction
\..,
\.j
l;
'-'
\.,
• r
•
••
•
J
FAMILY
e of Fa
f_option.
r an only
ely son
•
ption}.ln
a Hi
p~cation
o~ done,
.. s
:x""was
seding
A
•
I.\vife,
ht to i
p'_'.
•
•
•
•
•
•
FAMILY LAW
Who is not married, or
If married, whose marriage has been dissolved or
Whose husband is dead or
Has completely and finally renounced the world or
Has ceased to be a Hindu or
• Has been declared by a court of competent jurisdiction to be of unsound mind,
has the capacity to take a son or daughter in adoption.
Whether child adopted by Widow under Hindu Adoption and maintenance Act
would be deemed to be child of her Husband
The provision in section. 12 of the Act, makes it clear that, on adoption by a
Hindu female who has been married, the adopted son will, in effect, be the adopted
. son of her husband also. Under the Shastric Law if a child was adopted by a widow,
he was treated as a natural-born child and, consequently, he could divest other
members of the family of rights vested in them prior to his adoption. It was only with
the limited object of avoiding any such consequence on the adoption of a child by a
Hindu widow that the provisions in clause (c) of the proviso to section. 12, and
section 13 of the Act were incorporated.
In that respect, the rights of the adopted child were restricted. It is to be noted
that this restriction was placed on the rights of a child adopted by either- a male
Hindu or a female Hindu and not merely in a case of adoption by a female Hindu.
This restriction on the rights of the adopted child cannot, therefore, lead to any
inference that a child adopted by a widow will not be deemed to be the adopted son
of her deceased husband.
_•.
•
•
•
JB
JB SERIES
21
Part - B Answers
iab la~
. hed
20. Schools of Hindu Law
Ans. Schools of Hindu law are considered to the commentaries and the digesti
the srnritis. These schools have widened the scope of Hindu law and expl
contributed to its development.
The two major schools of Hindu law arc as rollmvs• M itakshara
('liS
aga~
1
aga\J<
of the mos
leading
_ ....ilv.
-" Accord
'-'1
...
• DayaBhaga
Mitakshara
hed nri
cted b~
Dayabhcc~
Rrc"'UUJL1'",
Mitakshara School: Mitakshara is one of the most important schools of Hindu
It is a running commentary of the Smriti written by Yajnvalkya. This sc
applicable in the whole part of India except in West Bengal and Assam.
Mitakshara has a very wide jurisdiction. However different parts of the
practice law differently because of the different customary rules followed by them.
Mitakshara is further divided into five sub-schools namely
•
•
Benaras Hindu law school
Mithila law school
•
•
Maharashtra law school
Punjab law school
•
Dravida or Madras law school
.5../
• Day
.\.1
• Datt
'-
.Restitutioi
\.oJ
Section
A~
These law schools come under the ambit of Mitakshara law school. They
the same fundamental principle but differ in certain circumstances.
Benaras law school
This law school comes under the authority of the Mitakshara law sc
covers Northern India including Orissa. ViramitrodayaNirnyasindhuvivada
are
of its major commentaries.
Mithila law school
. This law school exercises its authority in the territorial parts of
north Bihar. The principles of the law school prevail in the north.
commentaries of this school are Vivadaratnakar, Vivadachintamani, Smritsara.
Maharashtra or Bombay law school: The main authorities of these s
VyavharaMayukha, Virmitrodaya, etc. and has the authority to exercise its j
over the territorial parts including Gujarat Karana.
Madras
law school: The main authorities of this school are Smriti
Vaijayanti, etc.and it tends to cover the whole southern part ofIndia.
grouq-l~
• Crue'rf
• On r '
'-'
Nonp
'-'
",.
'It
FAMILY
•
FAMILY LAW
-...
b law school: The main commentaries of this school are viramitrodaya and it
"'.~~
.ished customs and established its own customs and traditions.
.• lj.al'.:lUlllagasc
hool:
_esti
gaschool predominantly prevailed in Assam and West Bengal. This is also
n,d.,.expll"d.,oTlt:':
of the most important schools of Hindu laws. It is considered to be a digest for
•
leading smritis. Its primary focus was to deal with partition, inheritance and joint
.&'-""'.1
• According to Kane, it was incorporated
in between 1090-1130 A.D.
Oayabhagaschool was formulated with a view to eradicating all the. other
and artificial principles of inheritance. The immediate benefit of this I}ew
is that it tends to remove all the shortcomings and limitations of the previously
ished principles and inclusion of many cognates in the list of heirs, which was
cted by the Mitakshara school.
•
•
agaschool various other commentaries were j()llo\\cd such as:
•
••
•
~ey
•
•
•
•
Dayatatya
Dayakram-sangrah
Virmitrodaya
Dattakachandrika
on of conjugal rights.
Section 9 of Hindu Marriage Act provides for the Restitution of Conjugal
As per the provision, when either the husband or the wife has, without
excuse, withdrawn from the society of the other, the aggrieved party may
by petition to the district court, for restitution of conjugal rights and the court,
satisfied of the truth of the statements made in such petition and that there is
ground why the application should not be granted, may decree restitution of
rights accordingly.
of section 9
----- ...~ and wife should be legally married.
and wife must not be living together.
ground for withdrawing from other's society must be unreasonable.
party must'have filed for the restitution of conjugal rights.
mention has been observed in various cases, including SushilaBai v.
wherein the husband left his wife to her parents home and asked to
When called for, over which the wife had filed a case under Section 9 and
had granted the decree after observing that there existed no reasonable cause
from his society.
on which a court may refuse the grant of conjugal rights includes:
by husband or in-laws.
failure of performance of marital obligations by husband.
payment of the dower by the husband.
JB SERIES
23
Burden of proof:
•
•
•
•
•
•
•
•
The party which has been deprived of being in a society of the other can
for restitution of conjugal rights and the burden or proof will lie upon the aggri
party to prove that the grounds for desertion is unreasonable in nature and then
onus sh ilis upon the respondent to prove that the ground was reasonable
nature.M aintenance :Under Section 2S() or the II indu Marriage Act, the
have been empowered to order the respondent to provide lor maintenance, upon
application made by the petitioner.
This provision is endorsed in the case of Seem a v. Rakesh Kumar in which
Supreme Court held that the petitioner. the wife. was entitled to maintenance
her husband when she was not able to have a decent life on her own.
22. Divorce by mutua) consent.
Ans. Section 13B of the Hindu Marriage Act 1955 deals with mutual co
divorce.The procedure of this kind of divorce in India is less expensive and
traumatic as compared to the contested divorce procedure
Divorce is a legal process of separation after marriage, when both
parties (husband and wife) wants to separate with their own will after marri
called at divorce with mutual consent. Both husband and wife can apply for
divorce mutually.
MOST IMPORTANT POINTS TO REMEMBER WHILE DIVORCE
• Child Custody - Which partner will get the child custody after divorce
•
Alumni/Maintainance
- If one of the partner is unable to meet his
expenses then other needs to pay him a certain sum of amount. It is s
to mutual understanding between the partners(husband and wife).
•
Settlement of Property and Assets - Settling the ownership ri
property and asset between the parties(Husband and wife)
WHEN ONE CAN APPLY FOR MUTUALLY CONSENTED DIVORCE:
Husband and wife both should be willing to get separated is the first and
rule when it comes to a divorce with mutual consent. Also following things
should be aware of before filing a divorce:
• Husband and wife should be staying separately for the period of mi
one year.
• Husband and wife both are agreed for the divorce.
• They are unable to live together anymore.
• Minimum one year from the date of marriage
DOCUMENTS REQUIRED FOR DIVORCE WITH MUTUAL CONSENT
Common Documents are required for Filing a divorce petition,
expert's lawyers help you prepare the documents if anything is missing:
• Marriage Certificate
Addlt.r~;
Four P
Inco",,"{
Detr :IS
Det~s
Inf~1
Eviden
Evi-..,.1
Poly~r
Polygamy is \
.to when M
husbands ar-t
ADS.
,
V
'"-...........
,.~US ~l'
Reli--':)
:\~lo""""">" Budd
of\,;
•r
FAMILY LAW
•
•
•
•
•
•
•
•
Address Proof - Husband and Wife.
Four Photographs of Marriage.
Income tax Statement of last 3 years.
Details of profession and Income (Salary slips, appointment
Details of Property and Asset owned
Information about family (husband and wife)
Evidence or Staying separately for an year
Evidence relating to the failed attempts of reconciliation
letter)
23. Polygamy.
•
ADs. Polygamy is the practice of having more than one spouse at the same time.
Polygamy is when a man is married to multiple wives at a time. and polyandry refers
to when a woman is married to multiple husbands. If a marriage has multiple
husbands and wives. it can be referred to as a group marriage.
In contrast to polygamy is monogamy, which is a marriage consisting of only two
spouses.
Religious Views on Polygamy
Religions have differing views on marriage and polygamy. For example,
because Buddhism does not regard marriage as a sacrament and only a secular affair,
forms of marriage vary by country. For example, Thailand legally recognized
polygamy in 1955, and Myanmar outlawed polygamy in 2015.
In Christianity, the Roman Catholic Church condemns polygamy. The
Lutheran Church accepts some polygamists. Polygamy is illegal and criminalized
across Europe and the Americas, as well as in China, Australia, and other countries.
Even so, there are many instances of polygamy in the West in Islam, a Muslim man
may have more than one wife at the same time, up to four wives, according to Islamic
marital jurisprudence.
Hinduism allows polygamy with circumstances.
For example: Traditional Hindu law allowed polygamy if the first wife could not
_bear a son. Additionally, Balinese Hinduism allows for sanctioned and unrestricted
polygamy, but the marriage is regulated by adat or traditional customs.
•
•
Legality of Polygamy around the World
. In Indonesia, polygamy is legal in some areas, such as in Bali, Papua, and West
Papua. polygamy and polygamous marriages occurred in 2008 in Indonesia, but no
action has happened.
In India, Malaysia, the Philippines, and Singapore, the governments only
recognize polygamous marriages for Muslims. They have specific legislation for
polygamous marriage that only includes Muslims.
JB SERIES
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25
FAMILY
24. Explain how intestate succession of the property
of Hindu male devolves.
Ans. Intestate Succession : In situations wherein a person dies leaving behind.
property but without leaving a will or a testament or any instruction concerning
distribution then in accordance with the law in force. the said property will
distributed to its legal heirs by the rules of inheritance. This kind of devol
wherein the property is devolved and distributed hy the rules of inheritance is c
intestate succession.
Succession of a property
of a Male Intestate
~
'-'
26
4. As S~f)
the esr=t.
5. If fat~
estate...':
6. Class!
(reIat\.;
7. In case
agnat\.;1
8. If there
Gove~
relatio=
All the heirs either related by blood, marriage or adoption are divided into
classes or categories this categorization is primarily based on propinquity in
relationship of the heir with the deceased, though other factors like natural love
affection are also taken into consideration. Further, the rule of agnate over <'''l1r"o_,
has been retained from the earlier regime.
For fe~
daughters,C'
estate shalf'd
also, it wiI\.J'
One special
Rules for devolution
father or ~
case she does
'-'
of property of a Male Intestate
On the death of an intestate, the property shall first devolve to class I heirs,
long as a single class I heir is present, the property will not go to heirs in class
category. In the absence of a class II heir category, the property shall devolve
heirs in class III or agnates which primarily comprises the leftover heir who are
relatives of the intestate related to him through a whole male chain of relatives.
case there is no heir present in class III, the interest in the property shall devolve
any other blood relative of the intestate.
1.
Male Hindus: There are four classes of Legal heirs. The property will
exclusively to legal heirs specified in Class 1 if there is anyone available. C
relatives include wife, son/daughter, mother, son/daughter of predeceased
daughter, widow of the predeceased son and few other such relatives. The
would be distributed in equal share to widow, mother and each of children. In
any of the child has predeceased, his spouse and children will collectively get
her share.
Example: A has died. He has left behind B, his wife, C, his mother and D, elder
F, youngest son and G, his daughter. E, his middle son had died few years earlier
he left behind his wife E-l, and two children E-2 and E 3. His property
divided in 6 parts, Each legal heir would get one part
1. Wife and children of deceased E would collectively get one part.
2. The legal heirs specified in Class II will get the estate of the deceased
there is no relative in Class 1.
3. Relatives in Class II have been put in sequence and it is provided
relative named first in list would get full, in preference to the next.
person will get in Full, only if first named relative is not there and so on.
schedule, Father is named first and brother/sister as second and so on.
25. Who it;
Ans. A t'1+:
guardians M
appoint g~
Hindu Minot
and their
1\.1
Und
:1'lunCIlone\..t
the f
~
ore
Tl
aft~
of a
iA...
gUt
•r
•
I
m~
I
~
I
•,
::
•
FAMILY LAW
4. As such, ifthere is no relative in class 1 and father is there, then he will inherit
the estate fully.
5. If father is not there. then brothers and sisters of the deceased shall inherit the
,k?ind
estate fully.
:~mg
6. Class III and IV are Agnates (relations only through male) and Cognates
:Will
(relations not wholly through males).
j~ol
7. In case there are no heirs even in class II, then succession would devolve upon
agnates of such deceased. failing which by cognates.
8. If there are no Agnates and Cognates also, the estate will devolve upon the
Government. Among the Agnates and so also in cognates. the one closer in
relation is preferred.
'
For female Hindu, class 1 relatives are somewhat similar ie Husband. sons and
daughters, including children of predeceased son/daughter. If none 0 I'them are there,
estate shall devolve upon the heirs of the husband. If there are no heirs of husband
also, it will devolve upon the mother and father of the deceased. if alive.
One special provision is there for property inherited by the female Hindu from her
. father or mother. Such property would revert back to the legal heirs of her father, in
.case she does not leave behind any son or daughter.
•
olves.
~.
•
1_0
•
25. Who is a Testamentary
guardian?
What are his powers?
Ans. A testamentary guardian is one who is appointed by a will of the natural
guardians of the minor. Father who is the natural guardian of his minor children can
appoint guardian for them who are known as testamentary guardians. Section 9 of the
Hindu Minority and Guardianship Act, 1956, relates to the testamentary guardians
and their powers.
Under old Hindu Law a testamentary guardian appointed by father could
function even though when the mother was alive. But according to Section 9, even
though the father has appointed a guardian if the mother is alive, she would be his
guardian, and she also can appoint under her will a guardian of her own choice.
But if the mother does not appoint any guardian, the appointment of the
guardian under "father's will" will come into operation. Such a testamentary guardian
becomes functional only after the death of natural guardians, as a will comes into
effect only on the death of its executor. Section 9 of the Act runs as follows:
•
Powers of Testamentary Guardian:
The testamentary guardian becomes entitled to act as the guardian of the
minor after the death of the natural guardian. He can exercise all the rights and
powers of a natural guardian to such extent and subject to such restrictions as are
specified in the Act and in the will. Thus the powers of testamentary guardian and the
natural guardian arc the same except that the power of a testamentary guardian to
JB SERIES
r
•
27
deal with property belonging to the minor is also subject to the restrictions i
by the will.
Since the powers of the testamentary guardian are similar as that of IlU,IiI.,....",,.,-. custo
guardian, it is relevant to know that Section 8 of the Hindu Minority
al customs
Guardianship Act. 1956 deals with the powers of the natural guardian.
not highV'
laysdown that the natural guardian has every power to do any act subject to
neral custr
provisions of the law if necessary or found to be beneficial to the estate of the
eral c~
type of C'
However. it should be noted that a natural guardian has no power to
ventiot.rl
make a gift or exchange any property of the minor without the permission
Court. In the same way natural guardian can't lease the property of the min
more than five years or more than one year beyond the date on which the
es~enCI:
attains majority.
lowing are
Removal of a Testamentary Guardian:
Section 39 of the Guardian and Wards Act lays down certain
which a testamentary guardian could be removed. It may be noted here that the
section has not been abrogated by the present Act of 1956 hence it stands a go
even today. Thus a testamentary guardian could be removed on the following
as mentioned in Section 39 in the Guardian and Wards Act:•
•
•
•
•
•
•
•
•
Abuse of his trust.
Continuous failure to perform the duties.
Incapacity to perform the duty.
Ill-treatment or neglect to take proper care of his ward.
Continuous disregard to any of the provisions of the Act.
Conviction in case of an offence relating to lapses in the character.
Keeping an adverse interest.
Ceasing to reside within the local limits of the jurisdiction of the court,
Insolvency or bankrupcy.
26. What is a Valid Custom?
And what are its requisites?
Ans. Customs is the tradition that has been practiced in society since ancient
is the type of practice which is under the continuous observation of the
been followed by the people.
Further, the customs have been classified into the following categories:
~
~
~
~
Legal customs
Local customs
General customs
Conventional customs
• A
•
•
•
•
•
cl\.i
A custo
A c\.lc
There n
It sh'-'I
A custc
gen~
....... ~-lt
•
•
nority
.cti
iliil to
h~ni
.tlod
W
O
••
•
•
•
••
, and
••
•
II'
,1,1
FAMILY LAW
customs
customs are those customs which are enforceable or sanctioned by law. There
are two types oflegal customs. They are
Local customs
Local customs are the customs that are practiced in a local area. This type of custom
is not highly recognized.
General customs
General customs are the customs or traditions which are practiced III a large area.
This type of custom is highly recognized by people.
Conventional customs
Conventional customs are CllStOI11Sthat are related to the Incorporation or an
agreement and it is conditional.
The essentials of a custom:
Following are the essentials of a custom
• A customs must be continuous in practice
• A custom should not be \ ague or ambiguous
• A custom must have time antiquity
• There must be a complete observation of the custom
• It should be certain and clear
• A custom must not oppose the public policy which will affect the interest of the
general public.
DeivanaiAchi v. Chidambaram
(1954) Mad. 667.
In the instant case it was held that in order to become legally sanctioned by law and
binding on the people a custom must be continuous in practice, it should not be vague
and ambiguous and should not oppose the well established public policy. A
customary rule must be in the complete observation of society.
Laxmi v. bhagwantbuva AIR 2013 SC 1204:
In the instant case, the supreme court stated that a custom becomes legally
enforceable when the majority of people make the continuous use of such practice.
Onus
Generally when a custom attains the judicial recognition no further proof is required,
however in certain cases where the customary practices do not attain the judicial
recognition, the burden of proving lies on the person who alleges its existence.
Munnalal v. Raj Kumar AIR 1972 SC 1493
In the instant case the supreme court stated that a custom brought before a court
several times, the court might hold that such custom has been enforced by the law
with the necessity of its proof.
27.What are the sources of Hindu Law?
~ns. Hindu law is considered to be the most ancient and prolific law in the world. It
IS about 6000 years old. Hindu law has been established by the people, not for the
purpose of removing any crime or transgression from society but it was established so
that the people will follow it in order to attain salvation.
JB SERIES
29
Sources of Hindu law
There is the two-fold classification of the sources of the Hindu law
• Ancient sources
r•
FAMILY
Local customs
is not highl~{
• Modern sources
General ctV
Ancient sources
General custoi
Ancient sources are the source that developed the concept of Hindu law in an This type o~
times. It is further classified into tour categories
Convention~1
I. Shruti
Convention~
') Smriti
agreement
3. Customs
odern sourt
4. Digest and commentaries
,Judicial
Shruti: The term Shruti means what has been heard. It contains the sacred w
mg
the god. This source is considered to be the most important and essential sourcesssauu oritativ
all. Shrutis are the sacred pure utterance that has been enshrined in the Vedas and
ied in the
Upanishads. They have re ligious ncxust connection) with a person and helps him
ded. \",
way to attain the knowledge or salvation and incarnation. It is considered to be
The le
primitive source containing the knowledge of the law.
ial ro\el:
Smritis: Smritis are considered as text which has been remembered and
interpreted by the rishis throughout the generation. There is a further classificati
the term Smritis which are as follows
• Dharma Sutra (Prose)
• Dharmashastras (Poetry).
renee.
Commentaries and digest :The third ancient source of Hindu law is com
This ",,:
and digestives. Commentaries and digestives have expanded the scope of Hindu
InGu
It played a very major role in developing the very concept of Hindu law. It he
,u'T .. "nla~
the interpretation of the smritis. Single interpretation of the smritis is called
commentary while different interpretations of the smritis is known as di
Dayabhaga and Mitakshara are considered to be the two most .
commentaries.
Customs: Custom is the tradition that has been practiced in society since
times. It is the type of practice which is under the continuous observation
people has been followed by the people.
Further, the customs have been classified into two categories• Legal customs
• Local customs
• General customs
• Conventional customs
Legal customs
Legal custom is those customs which are enforceable or sanctioned by law. It
deemed invalid until the law itself declares it invalid. There are two types of
customs.
c
DV
•
•
•
•
•,,4l
••
FAMILY LAW
Local customs
Local customs are the customs that are practiced in a local area. This type of custom
is not highly recognized.
an
djl ~nd
,,",,11m
~be
General customs
General customs are the customs or traditions which are practiced in a large area.
This type of custom is highly recognized by people.
Conventional customs
Conventional customs are custOI11Sthat are related to the incorporation of an
agreement
and it is conditional.
'-'
Modern sources
Judicial Decisions (Precedents): Judicial decisions are considered to be the most
important ingredient of modern sources. .Judicial decision is considered to be
authoritative and binding. The doctrine of precedent was established and it was
applied in the cases resembling the same facts and circumstances of a case already
decided.
The legislation is considered to be the codification of customs which plays an
essential role in expanding the concept of Hindu law. Legislations are enacted by the
parliament.
Justice equity and good conscience
Justice equity and good conscience is the basic rule of law. This rule of law applies
when an existing law doesn't apply in a case before the court decides the particular
matter by applying its rationality and the concept of justice equity and good
conscience.
This rule is considered to be the fairest and reasonable option available to a
person. In Gurunath v Kamlabai the Supreme Court held that in the absence of any
existing law the rule of justice equity and good conscience was applied.
Legislation
The legislation is considered to be the most important source of Hindu law. It
is considered as a base for the growth of Hindu law in the modern world. It has been
stated that in order to meet the new conditions of the society it became a necessity to
codify the law.
•
•
•
28. What are the grounds
special grounds if any.
for divorce under Hindu Marriage
'I
I
:1
Act 1955? State
Ans.The couple has to meet various criteria under the Indian legislation to get a
divorce. The court considers these criteria as the very basis on which a divorce can be
filed.
i!j
~i
:1
"
JB SERIES
31
I. Bigamy: If the husband has re-married while his first marriage has not
dissolved, the wife from the first marriage can file for divorce on grounds
bigamy. This grounds applies to all women, except Muslim women, as lim'
polygamy is allowed in Muslim law. Along with being a ground for di
bigamy is also a criminal offence under Indian Penal Code.
2. Adultery: Adultery is defined as the act of living with and having inti
relations with a person who is not the legally wedded spouse. Even a single
of adultery is sufficient for the a Ilcctcd spouse to file a decree for divorce.
3. Impotency: This Ground for Divorce varies from state to state, Especially
evidence required. Your own testimony will not be enough proof to
impotence as a Ground for Divorce. You will need to acquire medical
and to hire an expert to testify about this reason. Some states will not grant
Ground, unless you can prove that the situation is permanent.
4. Infertility: This Ground for Divorce is questionable in many states. It is
longer a suitable reason for a marriage to end. However, undisclosed inf
can be grounds for the annulment of marriage.
5. Adultery:
Adultery is defined as the act of living with and having inti
relations with a person who is not the legally wedded spouse. Even a si
of adultery is sufficient for the affected spouse to file a decree for di
However, this category does not apply for Muslim women as limited poly
6. Cruelty: If either the husband or wife subject each other to any form of
it becomes a ground for divorce. The spouse that has been treated cruelly
file for divorce. Cruelty as a category for divorce includes both mental
physical and emotional.
7. Unsoundness of Mind: If either of the spouse has exhibited
mind after marriage then such unsoundness can be a ground
However, if such unsoundness of mind was brought to the notice of the
before marriage then it cannot be a ground for divorce.
8. Presumed Death: If either the husband or wife has been missing for a
seven years or above, they are presumed to be dead in the eyes of law.
surviving spouse brings this to the notice of the local family or district
becomes a valid ground for divorce.
9. Criminal History: In most states, if a spouse has been convicted or c
with a crime, it is suitable Grounds for Divorce. Some states require am'
prison sentence of 12 months or more.
10. Desertion: If either the husband or wife has deserted the other for a period
least two years and above,. The desertion could be physical deserti
emotional desertion where the spouse continues to stay in the same
neglects the other spouse. Desertion is a ground for divorce.
11. Convdiwi
another r
spouse\.,.t:
affecterl s
12. Rape,'s'(
unnat1\.,)
on grouru
13. Repu~l
fifteen\.)
becomes,
exercl\._,
14. Leprosy:
or vir~
this grout
15. Vener\.tl
when (lllt
etc. T~
awareC
•
•
•
•
FAMilY LAW
FAMilY
II. Conversion & Renunciation of World: In case one of the spouse converts to
another religion, the affected party can f Ie for divorce. Furthermore, if the
spouse renounces the world for religious, spiritual or any other reason, the
affected spouse has the right to tile for divorce.
12. Rape, Sodomy, Bestiality: If the husband subjects the wife to any form of
unnatural or non-consensual sexual intercourse then the wife can file for divorce
on grounds of rape, sodomy and bestiality.
rcc.
13. Repudiation of marriage: In cases of child marriage. if the wife is above
fifteen years and under eighteen years of age and was forced to marry, once she
becomes a major she can repudiate the marriage. Courts allow child brides to
exercise this right to protect those who may have been coerced into marriage
14. Leprosy: Leprosy is the ground of divorce is when one spouse has an incurable
or virulent form of leprosy. The petitioner can file divorce in the court under
this ground, if their spouse has such a severe kind of leprosy
15. Venereal or Communicable DiseaseVenereal disease is the ground of divorce
when one spouse is suffering from a serious communicable disease like AIDS
etc. The other spouse can apply for divorce but must prove that they were not
aware of their spouse's disease before their marriage.
29. What are the ceremonies to be performed for the Hindu marriage? Is
registration compulsory? Explain.
Ans. For a long period of time Hindu marriage rites have been changed accordingly
due to the needs and convenience of the people from time to time.
Ceremonies to be performed in a Hindu Marriage:
Marriage in the Hindu religion is a sacred tie performed by certain
ceremonies and rites which are necessary for a valid marriage. There are three
important stages wherein certain ceremonies are to be performed.
• Sagai -Hindu engagement is an important pre-wedding ritual in Indian culture, it
is a type of culture in which the bride and groom come face to face and are
engaged with a religious bond by each other's families. There are various terms
which are used instead of engagement in different places like Mangi, Sagai,
Ashirbad, Nishchayam etc.
• Kanyadan- It is an emotional and sentimental laden ritual which recognizes the
sacrifice a father makes in order to ensure her daughter's happiness. It is followed
till now from the Vedic times. It is an integral part of traditional Hindu marriage.
•
•
• Saptapadi- Saptapadi is a very important and integral component of a typical
Hindu marriage. It is an activity which is undertaken by the bride and groom in
front of the fire god, where couples go around the sacred fire seven times while
reciting certain vows. This movement is also known as phera. Fire or Agni is
JB SERIES
33
considered highly sacred in the Hindu religion, vows taken in front of the
are unbreakable.
30. What are the changes
Explain.
brought
by the registration
in the law of adopt
T~I
Mitakshara as
two schooM
ConclusioG
longer basea
upon the \./'
tors and
Ans. The Hindu Adoption and Maintenance Act. 1956 has now completely codi
the law of adoption and has materially modi lied it. . The Act extends to whole
India except the state of Jammu and Kashmir. It will apply to all the Hindus li
1. Write .~n
within the territory in India. Any adoption made in contravention of the provisi
Ans. ConsWr
this Act shall be void.
have equal :i.
rights to thl'"r
The Act has brought about remarkable changes in the law which are as
oint HinV
under:(
'-'
• The Act will apply only to Hindus inc lude J ains, Sikhs, and Buddhists. All
texts, rules and customs, which were in vougue, immediately before the
came into existence shall cease to have effect with respect to any matter
which provision is made in this Act.
• The Act specially affected the right and capacity of a Hindu female to
child. Married women cannot adopt a child in the life time of her hus
without his consent. After the death of the husband she becomes fully
to adopt a child. She no longer requires the prior consent of her husband to
after the death of her husband.
Hindu female's right to adopt has been considerably enlarged. She can adopt
during her maidenhood or after the death of her husband in case he had
issueless.
• The Act provides for the adoption not only of boys but also of girls
• The Act does not provide for the performance of ceremony of '.lJaLL"~
The only requirements under the Act is to transfer the boy or the girl
and acceptance of the child in adoption by the adoptor.
• . Now after the Act the adopted child cannot divest any person of any
in the adoptive family which has already vested in him. Under the old
adopted son was competent to divest any collateral of any property
vested in him before the act of his adoption, but under the present
adopted child cannot do the same.
Thus the Doctrine of Relation Back has been completely abrogated U"'''''V~''''
which a son adopted by the widow was deemed to have come into
the adoptive family on the day of the death of her husband.
• Now under the present Act a male Hindu cannot adopt a child except
consent of his wife whereas no such law existed prior to the Act. Under
law the widow could not adopt except the consent of her husband. The
been reverse
ca\.i
her, the
• In\..fl
moth
In\,r,
'-'
•
•
•
•
•
•
•
FAMILY LAW
FAMILY
if the
The present law of adoption has
Mitakshara as well as Dayabhag alike and
two schools have come to an end.
Conclusion: The concept of adoption has
longer based on the religious and spiritual
upon the need of the adoption in order to
ancestors and to continue family line.
been applied to all the sub-schools of
all the difference which existed between
undergone a remarkable change. It is no
considerations. The old law emphasised
extend spritual benefit to the father and
31. Write a note on Hindu woman's property rights.
Ans. Constitution of India does not differentiate between males and females. Women
have equal rights as that of a man in every sphere. Earlier women did not have any
rights to the property and they were at the mercy of the rna Ie members of the family.
Joint Hindu Family, an unique institution acted as refugee home for women. With the
disappearance of the Joint Hindu Family, the plight of women worsened. Gradually
in course of time. the women have acquired absolute rights over the property as that
of a male. Successive governments have enacted various laws improving/ conferring
property rights to women.
Revolutionary changes: The Hindu Succession Act 1956 brought out revolutionary
~ter
changes in property rights of women. Section 14 of the Hindu Succession Act,
IUOI)£. confers absolute right to the female in any property possessed by Hindu female. The
rights are of full nature including unfettered rights of disposal of property.
Rights in family property: Earlier females were not member of co-parceners, hence
were denied succession to the ancestral property.
In certain cases the ancestral house might be the co-parcenary property.
Generally, members of the joint family, mostly male Co-parceners reside in such
houses. In such cases, the female member cannot force a partition of such ancestral
house unless other male members in occupation of the house opt for partition.
But the unmarried daughter, a married daughter deserted or separated from
her husband, or a widow is entitled to a right of residence therein.
•
'.•
32. What are the powers and functions of natural guardian?
Ans. The natural guardian of a minor boy or minor unmarried girl is the father. On
oling
wee
.th
:r the
the death of the father, the mother becomes the natural guardian.
The natural guardians of a Hindu, minor, in respect of the minor's person as
well as in respect of the minor's property are.in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and
after her, the father;
• In the case of a boy or an unmarried girl-the father, and after him, the
mother:
• In the case of a married girl- the husband
:tIw
JB SERIES
r
35
FAMilY
36 __
------------------------------------------------------------~.--Provided that no person shall be entitled to act as the natural guardian of a
minor under the provisions of this section 1. Ifhe has ceased to be a Hindu, or
2. Ifhe has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi)
-~--,,'-
33. Defint\.tt:
ADS. Under ~
the follow~
• Thev'-t! (
"
prohit;(
r=
Explanation.--I n this section, the expressions' father' and 'mother' do not include a
• ~he
step-father and a step-mother.
time ~t
Natural guardianship of adopted son Essential
The natural guardianship of an adopted son who is a minor passes, on
);-MonogTn
adoption, to the adoptive father and after him to the adoptive mother.
Accorv
the time (
Powers of Natural Guardian
4940fV
Bigamy:
);;> The natural guardian of a Hindu minor has power. subject to the provisions of
section. to do all acts which are necessary or reasonable and proper for the nprIPta'. illegal '-'
person C~
of the minor or for the realization, protection or benefit of the minor's estate;
);;> But the guardian can in no case bind the minor by a personal covenant.
marria~
The natural guardian shall not, without the previous permission of the court,
Age:
necessary
a) Mortgage or charge, or transfer by sale, gift, exchange or otherwise any part
this
immovable property of the minor or
marriage
Free
b) Lease any part of such property for a term exceeding five years or for a
world,
a
extending more than one year beyond the date on which the minor will
will be\J:
majority.
Sapinda
);;> Any disposal of immovable property by a natural guardian, in contravention
the de~
tradition.
sub-section (1) or sub-section (2), is voidable at the instance of the minor or
person claiming under him.
Insani\f.
No court shall grant permission to the natural guardian to do any of the acts
person,<.::
mentioned in sub-section (2) except in case of necessity or for an evident
ma'M.
advantage to the minor.
ot~
7 oj
);;> The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect
an application for obtaining the permission of the court under sub-section (2)
respects as if it were an application for obtaining the permission of the court
section 29 of that Act, and in particulara) an appeal lie from an order of the court refusing permission to the natural
guardian to do any of the acts mentioned in sub-section (2) of this section to
court to which appeals ordinarily lie from the decisions of that court.
r:
Tt
~«.,.
cv
);;>
In this section, "Court'? means the city civil court or a district court or a court
empowered under section 4A ofthe Guardians and Wards Act, 1890 (8 ofl
within the local limits of whose jurisdiction the immovable property in
which the application is made is situated.
FAMilY LAW
33. Define marriage. What are the essentials of a Hindu Marriage'?
ADS. Under Section 5 A valid marriage shall be solemnized between two Hindus if
the following conditions are fulfilled:
• They don't fall under the Sapinda relationship, or within the degree
prohibited relationship unless it is allowed by their custom or tradition .
of
• The person shall be 110tsuffering from any insanity or mental disorder at the
time of the marriage.
Essential elements of Section 5
~ Monogamy: Any person doesn't have a spouse living at the time or the marriage.
According to the Hindu Marriage Act, It is not permissible to have a living wife at
the time of marriage. which amounts to bigamy. It is punishable under Section
494 of the Indian Penal Code.
~ Bigamy: Bigamy amounts to having two living wives at the same time which is
illegal in Hindu law: \\ ithout finalizing the divorce from the first marriage, a
person can't marry someone else. The first one will be considered a legal
marriage. The provision of section 494 and 495 of the.
~ Age: The groom and bride shall attain the age of21 and 18 respectively. It is
necessary at the time of marriage the person shall attain the specified age given in
this Act. . If the person has not attained the age given in section 5 (iii) the
marriage will be void it has no legal status.
~ Free consent: The consent shall not be given by coercion or threat. In the modern
world, a father can't get the girl married ithout a girl's consent. Such marriage
will be void.
~ Sapinda relationship :They don't fall under the Sapinda relationship, or within
the degree of prohibited relationship unless it is allowed by their custom or
tradition.
)- Insanity: According to Section 5 (ii) (a),(b),(c) Hindu marriage Act 1955; The
person shall be not suffering from any insanity or mental disorder at the time of
the marriage.
Some other essential provisions for a Hindu Marriage
. Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu
marriage, a Hindu marriage may be performed by all the ceremonies and rituals of
both the parties or either anyone. Such as tying of the thali , saptapadi etc.
The marriage renders to be valid if it is performed between Hindu couples according
to the customary ceremony and rituals of each party or anyone of them ..
Registration of Marriage :(Section 8): A marriage certificate helps an individual in
proving they are legally married to someone, especially beneficial for getting a
passport, visa, work permit, etc. if their spouse lives abroad. It is also beneficial in
availing life insurance benefits, family pension, bank deposits, etc.
JB SERIES
37
34. Differentiate between judicial separation and divorce.
Ans. After the passage of Hindu Marriage Act, 1955 things changed in favour·
parties to the marriage. Now, in case of a failed marriage, the parties do not
suffer in the marriage and can easily break their matrimonial alliance through
Separation or by a decree or Divorce.
The Marriage 1.(1\\s (Amendment) Act, 1976 makes the ground for
separation and divorce common. It is upon the parties to choose between
methods of dissolution.
Judicial Separation: Judicial Separation is a chance for the couple to .
about the chances or continuing their relationship or thinking whether a di
drastic step. It can be a step towards divorce or a step towards reconciliation
the court gives the couple time to consider the choices available to them
effects of their decision.
Divorce: A divorce is a legal dissolution of a marriage by a court through a
divorce. Couples can file a petition for mutual divorce (both parties mutual
on getting a divorce) or a contested divorce (one party seeks a divorce
consent of the other) and in both cases the court must be convinced that
chance of reconciliation between the parties. Contested divorce can be
grounds of cruelty, desertion, adultery, conversion, mental disorder, pnrnTT11
disease, renunciation of the world or presumption of death, by/of one
parties. In the case of HrishikeshTalukdar v. PurabiBaishya, the G
Court ordered a decree of divorce on the grounds of cruelty by the wife
husband.
In case of divorce, parties cease to be husband and wife. Divorce puts an
marriage and all mutual rights, and obligations stand terminated. The parties
to
m.
Judicial separation
Divorce
•
Can file a petition at any time
post marriage.
• . Only one stage of .judgement. If
grounds are satisfied, decree will be
granted.
•
Temporary suspension of
marriage.
•
Cannot remarry after the decree
•
Can file only after
one year of marriage.
•
Judgement is a two-step
First reconcilion, then divorce.
•
Brings marriage to an end.
•
Can remarry once decree'
favour of divorce is passed.
•
•
Living in an adulterous
relationship necessary.
•
A single instance of adultery
sufficient for Judicial Separation.
•
No possibility of
•,.
•
FAMILY LAW
IMllY
•
There is a possibility of
conciliation.
L------:-:---:--:--:-----
---....
--.-
Conclusion: Judicial Separation can be the first step to a divorce and the last step in
an attempt to reconcile the parties so it is an option that every couple seeking to
dissolve their marriage should consider.
35. Explain different modes of Partition of joint property
l.lls11td
of a familr
Ans.Partition i.e. severance of joint status of a family can be established 111the
following ways1. Expression of intention- one member of the joint family can express his
intention to partition, even though no actual partition takes place.
By Notice
By Will
By agreement- such severance of status takes place from the date of signing of
the agreement.
By arbitrationif the members of the joint Hindu family come into an
agreement where they appoint arbitrators for themselves to divide the property,
the partition comes into existence from the day the agreement was signed.
By father- the karta of the family if expresses his wish to seek partition, such
partition comes into existence.
By suit- when a coparcener files a suit for partition, it amounts to an
unequivocal intimation of an intention to sever and consequently, severance of
status comes into existence from the date the suit was instituted.
Conversion to another Religion- this leads to automatic severance of status,
and it exists from the day of such conversion. However, he is entitled to receive
a share from the property.
Marriage under special marriage act- if a coparcener marries according to the
provisions of special marriage act, 1954 severance of status occurs automatically
from the date of marriage and the coparcener is entitled to receive his/her share
from the property .
...- .......'" of partition
coparcenary, the coparceners hold the property as one common unit, partition
the fixing of the shares of each coparcener.the partition can be classified into
jure Partition: This partitron brings merely the severance of status or
This happens when the community of interest is broken, either at the
of one of the coparcener or by the agreement of all the coparceners. In
a partition, the shares become clearly demarcated and are no longer
"'- ..·.UQU·lll;!.. However actual partition does not take place.
facto Partition: This is a partition by metes and bounds. This happens when
unity of possession is broken. It is only after the de facto partition, the
.·lnT."'~~_"
J8 SERIES
r
I
39
FAMILY
respective shares of the coparceners become their exclusive shares. Here
actual division of shares takes place.
When can partition be reopened
• The da=z:
the rig~
Generally, partition once made is irrevocable, however, the same can be reopened
case of following circumstances _
• All thv
20th Dece
changM
l. Mistake- a suit can be tiled. if any of the joint family properties have been
• Omiss,-out of partition by mistake they can be subjected to partition later.
female he
2. Fraud-The partition can be reopened if any of the coparcencrs had done
• Omiss~
fraudulent or mala tide act. For example, if any of the property has 110t
related t"
made subject to partition fraudulently.
view ~:
3. Disqualified Coparcener-Due
to some reasons, the disqualified cooarcesmrei t of ,. e
might be underprivileged from his share of the property at the time of
a@~l
In such a situation, he could get the partition removed after the disquali
amendment~
is removed.
9th September
4. Son in Womb-Ifa son is in the Womb at the time of partition. and no share
~
allotted to him, at the time of partition then later it can be reopened.
37. DiscussC
5. Adopted Son-The adopted son is permitted to re-open the partition in case i _.•.C'1.,.",.The
Hiridi
widow of a coparcener adopted a son after the partition. Such adoption under
in Indi\Jl
Hindu Adoptions and Maintenance Act 1956 related back to the date of d
, follov
deceased husband & such adopted son can reopen partition.
\.;
6. Absent Coparcener-Coparcener
who is not present at the time of partition
right to reopen the partition if he is absent at the time of partition and no s
allotted to him.
7. Minor Coparcener-If a minor coparcener can claim for reopening the
if he is not allotted his share at the time of partition, after attaining majority.
A partition can be reopened at the request of minor coparcener even if there
fraud, misrepresentation or any undue influence.
36. Write a brief account on the importance
Act 2005.
of Hindu succession (Amend
Ans. Though the Constitution of India enshrines the principle of equality .
chapters III, IV and IV A among its provisions but this gender di
manifested itself through various forms, and especially with regard to effective
in property.
But only after 2005, the Hindu Succession Amendment Act was
by the parliament rectifying the status of daughters in the Joint Hindu
granting them equal rights as that of son.
The Hindu Succession (Amendment) Act, 2005 (39 of 2005) was enacted to
gender discriminatory provisions in the Hindu Succession Act, 1956. U
amendment.
•
•
FAMILY LAW
The changes brought in by the amendment of 2005 are:
.,
.• • The daughter became coparcener. getting all rights of the coparcener lIlC luding
the right to seek partition for her share in the .Toint Hindu Property.
• All the alienation or partition or testamentary partition affected be lore the
20th December 2004 will not he affected.
• Omission of section 23 or the Act. which clearly discriminated against the
female heirs to seek any partition in the dwelling house which the intestate lc Ii
• Omission of section 23 of the Act. \\ hich discriminated third category or \\ omen
related to the intestate as the widow of a predeceased son .
. This view of amendment being applied retrospectively in order to ensure the best
r.'cenll interest of the daughters was also upholded by the Supreme Court in case of
Danamma(a)SumanSurpur vs. Arnar
Singh. the Hon'ble
court
held that the
amendment is applicable to all living daughters of living coparceners as on
9th September' 2005 and cannot be disputed further for its implication.
•
37. Discuss the effects of Hindu adoption and Maintenance Act, 1956.
Ans.The Hindu Adoption and Maintenance Act is one of the most important personal
laws in India. This is because it affects a large number of people. The Act applies to
'Hindus' following any sect, including Vaishnavs, Lingayats, followers of AryaSamaj.
etc.
'Hindus' under the Act also include .Tains,Sikhs, and Buddhists. In fact, this Act applies
to anybody who is not Muslim, Christian, Parsi or Jew. As long as the Hindu law
regulates a person, this Act would apply. This is why this Act applies to a large number
of people all over India (except in Jammu & Kashmir).
The Act contains several comprehensive provisions regulating the adoption of
children by Hindus. In fact, Section 5 says that any adoptions in contravention with
the Act is void and has no legal effect.
According to Section 6, there are some important requisites of valid adoption.
Firstly, the persons taking or giving a child in adoption must possess the capacity and
right to do so.
Secondly, the adopted person must be capable of undergoing such adoption.
Finally, the adoption must comply with all provisions of the Act.
Additional provisions explaining conditions for adoption.
For example, a male Hindu willing to adopt a child must obtain his wife's consent.
However, this is not important if the wife is unsound in mind or is no longer a Hindu.
Similarly, a female Hindu must obtain her husband's consent as well.
Furthermore, there are some conditions for giving a child in adoption also.
Nobody can give a child in adoption except hislher father, mother or legal guardian.
There are a few other similar conditions as well.
Effects of Adoption
Once a person successfully adopts a child, the child gets all the rights
applicableto naturally born children. The child also thereafter severs all ties with its old
JB SERIES
41
family. However, any property he owns prior to the adoption will continue to
with him.
rs of :&t
Hindu 1\1}
ian. S~i
·'- ...~nl..
The Hindu law of marriage contains a list of persons one cannot marry.
example, marriage with a relative within certain degrees is illegal. A chi ld taken
adoption cannot marry a person if the law so prohibits.
Furthermore, once an adoption is complete, the adopting parent(s) cannot
it. Even the child cannot renounce the adoption and go back to his old family.
orv
•
38.·Explain the position of defacto guardian
Guardianship Act, 1956.
under the Hindu Minority and
1
"After the
or dea"'_',
being the
After l\..t
with th- J
interes~n
Ans. A minor child when he has no legal guardian, some nearer relation takes
responsibility of the management of his property and on his application to the
as guardian, if the court appoints him, he becomes the court guardian.
However, such person, if he does not make application to the court, but ma
the property of minor, he is referred to as de facto guardian. He is also referred
de facto manager of the property, because a de facto guardian of a minor, is
legal guardian nor a testamentary guardian and nor a guardian appointed by the
but he is a person, who himself: has taken over the management of the affairs
minor, as ifhe were a natural guardian.
He had no lawful authority but can dispose of the property in case of erne
But such de facto guardian'S power to dispose of the property is abolished by
11 of the Hindu Minority and Guardianship Act, 1956.
Under old Hindu law nothing has been said about the de facto guardian, but this
of guardian was quietly recognised in practice. The Privy Council in
Prasad case, as early as in 1856 observed that under Hindu law, the right of a
fide incumbrancer, who has taken from a de facto guardian a charge of land,
honestly, for the purpose of saving the estate, or for the benefit of the estate,
affected by the union of the de facto with the de jure title.
With this judgment a silent recognition was extended to the status
facto guardian. Later in Kandamundi v. Myneni, Justice Kania observed that
law tried to find a solution out of two difficult situations: one, when a Hindu
no legal guardian, there would be no one who would handle or manage his
law and thus without a guardian the child would not receive any income
property, and secondly, a person having no title could not be permitted to .
with the child's estate so as to cause loss to him. The Hindu law found a
this problem by according legal status to de facto guardians.
This ;~ (
'-'
• FaulO
• Divorce
The(\,
the fau
hLt
•
FAMILY LAW
r" of De Facto Guardian
are as follows:
Hindu Minority and Guardianship Act, 1956 does not recognise a de facto
ian. Section 11 of the Act expressly negates the power of de facto guardian to
or deal with the property of a Hindu minor. Section 11 provides as under:
• "After the commencement of the Act, no person shall be entitled to dispose or
or deal with the property of Hindu minor merely on the ground of his or her
being the de facto guardian."
• After the enforcement of the Act 0 f 1956. a de facto guardian, thus, cannot dea I
with the property of a minor. Such property may be his separate or undivided
interest in joint family.
It is not correct to restrict the application of this section only to separate
",,.nnprHI merely because Section
11 of the Act does not mention "undivided interest
injoint family" as the expression occurs in Section 8 and Section 9 of the Act.
Thus Section 11 in effect has abrogated the class of de facto guardian. Any
alienation by such guardian after the commencement of the Act would be void ab
.. and the alienee would acquire no title to the property .
_TI_
•• t ...
r
. Explain the grounds for divorce under Fault Theory.
'ADs. This is one of the theories of divorce.
The provisions relating to divorce is contained in Sec 13 of the Hindu Marriage
Act, 1955. The Act recognizes two theories of Divorce:
• Fault Theory
• Divorce by mutual consent
Fault Theory
the fault theory, marriage can be dissolved only when either party to the
had committed a matrimonial offence. Under this theory, it is necessary to
a guilty and an innocent party and only innocent party can seek the remedy of
. However, the most striking feature and the drawback is that if both parties
been at fault, there is no remedy available.
"Mutual consent.
The underlying rational is that since two persons can marry by their free will, they
,should also be allowed to move out of their relationship of their own free will.
••
' critics of this theory say that this approach will promote immorality as it
will lead to hasty divorces and parties would dissolve their marriage even if there
w~re slight incompatibility of temperament. Some of the grounds available under the
Hmdu Marriage Act can be said to be under the theory of frustration by reason of
,specified circumstances. These include civil death renouncement of the world etc.
o fault theory of divorce: Prior to 1976, Divorce was granted only on the basis of
theory. It means marriage can be dissolved only when either party to the
.
had committed a matrimonial offence. But now Divorce can also be
JB SERIES
43
T~(
obtained on the basis of no fault theory, it means divorce can obtain by the
The q)T1(
consent of the parties to marriage under the marriage laws (Amendment) Act, 1976.
cr~'
Grounds under Fault theory:
Adultery; the adultery is considered as one of the most important ground for se
ment
divorce. Adultery means the consensual and voluntary intercourse between a
a~
person with another person, married or unmarried, of the opposite sex. Even
natur
intercourse between the husband and his second wife i.e. if their marriage
considered under bigamy, the person is liable for the Adultery.
40. Who is
The concept of Adultery was inserted under the Hindu Marriage Act by the M
guaa\J:
Laws Amendment Act, 1976.
Ans. The I
Essentials of Adultery:
the deat""c
I. One of the spouses involved in the intercourse with another person, marri
unmarried, of the opposite sex.
~
2. Intercourse should be voluntary and consensual.
Ias~
3. At the time of the act, the marriage was subsisting.
.oint farm
4. There must be sufficient circumstantial evidence to prove the liability of ...""._J a. in\..t
spouse
prov
•
Abandonment for a certain length of time: The permanent abandon
y~
one spouse by the other spouse without any reasonable justification and without,
b. in th
consent. In General, the rejection of the obligations of marriage by one party.
a~
c. in 1
Essentials
1. Permanent abandonment of the other spouse.
2. Rejection of the obligation of marriage.
No~~
3. Without any reasonable justification.
a. Ifm
4. No consent of another spouse.
b. I\_,
• Prison confinement: Confinement in prison is fault grounds for divorce,
(van:
the particulars of the imprisonment can matter. For example, two husbands
E~
drew prison time for drunken driving. A husband going to jail for sixty
inch:
a drunk driving conviction probably would not be grounds for a divorce; a
husband going to prison for three years for vehicular homicide while
intoxicated probably would be. In this case, a short sentence for a lesser
probably is not grounds; a long sentence for a felony probably is. Each
specifies how long the confinement must be for it to be considered
grounds.
s~r
""i'
'-'
• A spouse is physically unable to have sexual intercoure;
Impotence is a traditional ground for divorce and it remains on the books in
states that still allow fault as well as no-fault divorces. State law
divorce, and the treatment of impotence as grounds for divorce varies
Some states require that a spouse be impotent at the time the couple
while others allow a divorce if impotence occurred during the marriage.
laws require that impotence be permanent to grant a divorce, a tough
prove in an era of medical advances in treatment for sexual dysfunction.
•
•
FAMILY LAW
The other spouse has inflicted emotional or physical pain (cruelty):
• The concept of cruelty includes mental as well as physical cruelty. The physical
cruelty means when one spouse beats or causes any bodily injury to the other
spouse. But the concept of mental cruelty was added as the spouse can also be
mentally tortured by the other spouse. Mental Cruelty is lack of kindness which
adversely affects the health of the person. Well it is easy to determine the
nature or physical cruelty but difficult to say about mental cruelty.
•
••
iarried
•
•
40. Who is the guardian of a minor child? What are the powers of a natural
guardian?
ADs. The natural guardian of a minor boy or minor unmarried girl is the father. On
the death of the father, the mother becomes the natural guardian.
The natural guardians of a Hindu, minor, in respect of the minor's person as
well as in respect of the minor's property (excluding his or her undivided interest in
joint family property), are a. in the case of a boy or an unmarried girl-the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five
years shall ordinarily be with the minor;
b. in the case of an illegitimate boy or an illegitimate unmarried girl - the mother,
and after her, the father;
c. in the case of a married girl - the husband.
No person shall be entitled to act as the natural guardian of a minor:a. Ifhe has ceased to be a Hindu, or
b. Ifhe has completely and finally renounced the world by becoming
hermit
(vanaprastha) or an ascetic (yati or sanyasi)
Explanation.-In this section, the expressions 'father' and 'mother' do not
include a step- father and a step-mother.
Natural guardianship of adopted son The natural guardianship of an adopted son who is a minor passes, on adoption,
to the adoptive father and after him to the adoptive mother.
Powers of Natural Guardian
1. The natural guardian of a Hindu minor has power, subject to the provisions of
this section.
• To do all acts which are necessary or reasonable and proper for the benefit ofthe
mmor or
1. For the realization, protection or benefit of the minor's estate; but the guardian
Can in no case bind the minor by a personal covenant.
2. The natural guardian shall not, without the previouspermission of the court,
a. Mortgage or charge, or transfer by sale, gift, or
JB SERIES
45
b.
46
Otherwise
any part of the immovable
property
of the
c. Lease any part of such property for a term exceeding five years for a
extending more than one year beyond the date on which the minor will
majority.
3. Any disposal of immovable property by a natural guardian, in contravention
suo-section (I) or sub-section (2), is voidable at the instance of the minor or
person claiming under him.
4. No court shall grant permission to the natural guardian to do any of the
mentioned in sub-section (2) except in case of necessity or for an
advantage to the minor.
5. The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect
an application for obtaining the permission of the court under sub-section (2)
all respects as if it were an application for ohtaining the permission of the
under section 29 of that Act, and in particular• Proceedings in connection with the application shall be deemed to
proceedings under that Act within the meaning of section 4A thereof.
• The court shall observe the procedure and have the powers specified in
sections (2), (3) and (4) of section 31 of that Act: and (c) an appeal lie from
order of the court refusing permission to the natural guardian to do any of
acts mentioned in sub-section (2) of this section to the court to which
ordinarily lie from the decisions of that court.
41. Who is karta in Joint Hindu family? And explain the powers of karta.
In Hindu joint family, the senior-most male ascendant is the head of the
and known as Karta. Karta is the manager of the family. He takes care of the
and its property. The relationship of Karta with the other members of the u,''''''-J,
not that of a partner, agent or principal. He stands in a fiduciary relationship
members of the family. The Karta of the family has unlimited liability, also he
responsible to any member of the family except in case of fraud or'
.
ADS.
Redd~i'(
automati.
2. Powet-b
that thhead ~
famil~
rmsapprc
3. Powe",.,.
to the K
memlM
requirem
funds~
4. PoweU
challerrgt
these \.;
a. Ap:
b. \.11
c. Dh.
• Le'_
deeme
• Th~
Hinclu
of~
for
~
• Indlsl
r,"\
=v
Shraa.
espU
Karta
5. Pow",
farnil... .
co~
hi~L
SUlr.-'"
Although the senior-most male member of the family is the Karta, a junior
can also become the Karta if all the coparceners agree to it.
Powers of Karta
1. Power to represent: The family does not have a corporate existence,
through its Karta. The Karta is the sole representative member of the
family when it comes to any legal or social matter. Whenever there is a suit
by the family it is filed in the name of Karta or if there is a case
.
family then also it is in the name of the Karta. In the case of Rajayya v.
bit\:;
6. Power'
an<\_,
busin
• LoarC
exec_u.
busfl.t
payV',.
hav~
--
•
•
•
•
•
le
•
a
will
nor or
•
•
ed to
•
l.
FAMILY LAW
Reddy, it was he Id that if there is a judgement against the Karta of the family, it
automatically binds all the other members of the family .
2. power of management: In the case of Bhaskaran v Bhaskaran, it was held
that the Karta of the family has absolute power of management. As being the
head of the family he cannot be questioned by anyone. He can spend all the
family funds without being interrupted except in cases of fraud or
misappropriat ion.
3. Power over income: All the members of the joint family hand over their income
to the Karta of the family. He looks after the allotment of the funds to the
members of the family according to their needs and looks after their
requirements. He provides all the members of the family with the required
funds.
4. Power of alienation: The Karta's power of alienation is limited and it can be
challenged by the coparceners. Karta can exercise the power of alienation in
these 3 circumstances:
a. Apatkale (Legal Necessity)
b. Kutumbarthe (Benefit of the estate)
c. Dharmarthe (Indispensable duties)
• Legal Necessity: For interpretation, it can be stated that things which are
deemed necessary for family members.
• The benefit of the estate: Anything done in furtherance of the benefit of the
Hindu joint family is the benefit of the estate.lnthe leading judgement
ofBalmukundvsKamlavati
Supreme Court held that anything which is done
for positive benefit of the estate is included in the benefit of the estate.
• Indispensable
duties: This term signifies pious, religious obligations. A
person under Hindu Law is bound by the religious ceremonies such as
Shraddha ceremony, Marriage as it is held to be a sacred duty in Hindu law
especially of daughters and most important the funeral ceremony. A Hindu
Karta can alienate the whole property to perform the indispensable duties.
5. Power to compromise: The power to compromise all the disputes related to
family is also vested in Karta. He can take all decisions regarding the
compromise whether being related to family or its management. However, if
his act of compromise is not justifiable then it can be challenged in a partition
suit. He can also compromise a suit pending in the court and it will be
binding on all the members.
6. Power to contract debts: The Karta has an implied authority to contract debts
and pledge the credit of the family for the ordinary purpose of the family
business. The members cannot escape from this liability even after partition.
• Loan on promissory notes: Whenever the Karta takes a loan or makes
execution of a promissory note for the reason being a family purpose or
business then an individual family member can also be sued against its
payment irrelevant of the fact that he/she was not a party to it. Although they
have a limited liability varying upon their share in the joint family property.
JB SERIES
47
7. Power to enter into the contract
The Karta of the family can enter into a contract on behalf of the whole family
such contracts are binding upon the family members. The reason behind
this power is that if such power is not conferred upon him then it
become impossible to carry out business.
Liabilities of a Karta
•
"':_~r\,n1P
Liability to maintain- Karta is to maintain all the members
Family. I he does not maintain any member then he can
maintenance and also can be asked for compensation.
• Liability of render accounts- As far as the family remains joint. Karta is
supposed to keep accounts of the family, but when partition takes place at tIuE1I"Vll ••HU""
time he will he liahle to account for family property. If any of the heir is
satisfied with his accounts, then he can constitute a suit against Karta to
In C~ ..,
the truth and to know any misappropriation is done by Karta or not.
object behi
• Liability of recovery debts due to the Family- Ilc h,IS the liability to reall_tU inaintain'-t
the debts due to the family.
• Liability to spend reasonably- He has the liability to spend the joint
funds only for the family purposes.
• Liability not to eliminate coparcenary property- It is the liability of
Karta not to alienate the coparcenary property without any legal necessi
benefit to the state.
• Liability not to start new Business- It is the liability of the Karta not to
new business without the consent of other coparceners.
Conclusion: The position of the Karta, can be said that he has fewer liabilities
more powers. When it comes to determining the position of Karta, he holds a
position.
r
42. What is Pendent Lite? Explain.
Ans: Pendent Lite is a Latin term meaning 'awaiting the litigation' or ' pen
litigation' which applies to court orders to which are in effect while a
pending. In divorce cases Pendent Lite order is often used to provide for the
of the lower income spouse while the legal process moves ahead.
Section 24 of Hindu Marriage Act, 1955, empowers the power to
specific reliefs , to the husband or wife as Pendent Lite when the matrimonial
pending as per the section. They are :
1 . Expenses of the proceedings in respect of which the reliefis sought,
2. Monthly maintenance allowance during the period of proceedings.
This maintenance is available in cases of void marriages, nullity of
divorce, restitution of conjugal rites etc. Either husband or wife can
maintenance for the themselves or for their children from their spouse i....<>'''n~LL,
•
•
•
FAMilY LAW
the fact that who started the case or proceedings. Grant of maintenance dependent
upon the fact that one party of the proceedings does not have sufficient independent
income for support or necessary expenses of the proceedings: he / she can get it from
other party who is financially richer.
The provision of Maintenance Pendent Lite is also present on Special Marriage
Act, 1954, under section 36 and in Cr. Procedure Code under section 1 :25. But here
only wife can get the maintenance.
The expenses of proceedings include the fees of lawyer. SLllllS to meet LIpstamp
charges, clerical charges. travelling expenses etc.
In deciding the question of Maintenance Pendent Lite the only issue to be
considered is whether the claimant is or is not in a position to maintain herself or
himself.
In Chitra Lekh a v. Ranjit Rai, AIR 1977 Del. 176, it has been laid down that
the object behind Section 24 is to provide financial assistance to the indigent spouse
to maintain herself (or himself) during the pendency of the proceedings and also to
have sufficient funds to defend or carryon the litigation so that the spouse does not
unduly suffer in the conduct of the case for the want of funds.
•
•
•
JB SERIES
,r
49
50
Part--
C Answers
Issut\..1
1. Can he i
2. Can~
I
P~in~1
I
1.
A and B, a Hindu husband and wife mutually agreed to take divorce
in-six months from the date of marriage. Is it possible to get divorce u
cntena
section 13B (i.e, divorce by mutual consent) of the Hindu Marriage Act I
Examine.
the 1\..'
any prot
•
Facts of the case :
1. A and B are Hindu husband and wife.
mur~
intestate
2. They mutually agreed to take divorce with-in-six months- from the date
marnage.
'-"
slayer nil
• Issues in the case
_'''~r'~ a pers~
1. Is it possible to get divorce under section 13B (i.e, divorce by mutual
killed~1
the Hindu Marriage Act 1955.
theyna
• Principle: Section 13B of The Hindu Marriage Act,1955 provides the nrl""'Ql
I Judge 1'\,.,1
for Divorce by Mutual Consent. It explains that if the parties that are h
grandfathe
separately continuously for a period of one year and parties are not able to
inherit V
together and have agreed to separate mutually then they can seek di
death.
mutual consent
Essentials
to file mutual consent divorce in the court
1. The petition must be presented to the court jointly by both the parties.
2. The motion before the court hearing the petition should also be by
parties.
3. For a period of one year, parties must be living separately.
4. Parties are not able to live together.
5. Parties agreed mutually that marriage must be dissolved.
'-'
'A' a H
marr~
ofthL:
1. 'A' a'Tli
2. HeU'
in the c.
1. 'A' ~i
• Judgement:
In the given case the husband and wife mutually agreed to
divorce with-in-six months from the date of marriage. That means they
fulfil one of the conditions of the mutual consent divorce that they
separately one year.
So as per Section 13B of The Hindu Marriage Act,1955 they cannot, seek
divorce by mutual consent.
2.
'A' has murdered
to inherit the property.
his maternal grandfather (mother's father) with a
But his mother is alive. Discuss the succession
'A'.
•
Facts of the case :
1. 'A' has murdered his maternal grandfather.
2. He murdered with a view to inherit the property.
3. But his mother is alive.
wif~
Fact~
. 'A' fi' .
The~
, take~
, The wit
'-
. the
In
I
•
•
•
•
•
•
•
'.th
•
•
FAMILY LAW
• Issues in the case:
1. Can he inherit his maternal grandfather's property when his mother is alive?
2. Can a murderer inherit any ancestral property?
• Principle:Section
25 of the Hindu Succession Act, 1956 falls under th~se
criteria. This Section states that any person who commits the murder or assists
the murder shall be disqualified from .inheriting the property of the person. or
any property in the promotion to succession to which he or she committed the
murder. So as, If any person found guilty for the murder of the deceased
intestate must forfeit his or her rights.
The slayer rule, in the common law of inheritance, stops a person inheriting property
a person they murder (e.g .. a murderer does not inherit from parents or a spouse
killed). In figuring inheritance of the decedent's estate, the slayer is treated as
they had died before the person they murdered.
=Judgement:
Based on the above two principles A cannot inherit his maternal
grandfather's
property.
Further when his mother is alive he cannot directly
inherit from his maternal grandparent'. He can inherit only after his mother's
death.
'A' a Hindu Married
a Muslim girl according to Hindu custom. Is it a
valid marriage?
of the case;
1. 'A' a Hindu Married a Muslim girl.
2. He married according to Hindu custom.
Issues in the case:
1. 'A' a Hindu Married a Muslim girl. . Is it a valid marriage?
: By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be
id only if both the parties to the marriage are Hindus. If one of the parties to the
"marriage is a Christian or Muslim, the marriage will not be a valid Hindu marriage.
-""''''''.'''11 : According to section 5 of the Hindu Marriage Act 1955, a marriage
be valid only if both the parties to the marriage are Hindus. But in the given case
the parties are not Hindus. A is a Hindu boy and girl is a Muslim. So their
.
is nota valid marriage.
',.
'A' files a petition for restitution of conjugal rights against his wife. The
petition is dismissed since B had sufficient reason to stay away for' A' had taken
another wife. The wife claims maintenance under Section 25. Decide.
• Facts of the case :
1. 'A' files a petition for restitution of conjugal rights against his wife'
2. The petition is dismissed since B had sufficient reason to stay away for 'A' had
taken another wife.
3. The wife claims maintenanceunder Section 25.
JB SERIES
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1. Whether the wife gets maintenance or not?
Now"';
some erne
•
Principle: Under Section 25 of the Hindu Marriage Act, either spouse
of the ~l
claim maintenance and permanent alimony but that can be done only after j
separation or after divorce. When the marriage is subsisting there is no question
applicability of Section 25,
6. AH~'
•
Judgement:
So with the above principle it is very clear that Under S
in-law. Di~;
25 of the Hindu Marriage Act. either spouse can claim maintenance and perm
• Facts of
I. A Hir....,
alimony but that can be done only after judicial separation or after divorce. But in
2. He left b:
given case B the wife of A is staying away from her husband saying that he has
another wife which is not proved in the court and she did not take divorce from
• Issue~
1. How t(l d
i.e their marriage is still subsisting. So there is no question of applicability of
\.;
25 i.e she cannot claim Maintenance(permanent alimony).
5.
A, a Karta of a joint family sold some of the land of the family for
purpose of medicalexpenses of his son. Whether the alienation of the prope
valid.
Facts of the case:
1. A, a Karta of a joint family sold some of the land of the family.
2. He sold it for the purpose of medical expenses of his son.
Issues in the case:
1. Whether the alienation of the property is valid
Principle:
1. The Karta may alienate the joint family property irrespective of legal
or benefit of the estate with the consent of all adult coparceners in
at the time of such alienation.
2. Although no individual coparcener, including Karta has any power to
the joint family property without the consent of all others, it is a
concept by the dharamshatra that in certain circumstance, any member of
has power to alienate the joint family property.
Judgement:
1. According to first principle he can alienate with other coparceners consent,
in the given case it was not given whether the other coparceners gave
or not it is assumed their consent was obtained.
2. According to second principle it is a recognized concept by the
that in certain circumstance, any member of family has power to al
joint family property.
legal heirs
daught~
predece-s
equal sl'Psr
predec1."'"
pie: fr"l
,-..,....._~.
s\..l
behind
..
_•.
FAMILY LAW
-AMILY
•
based on the first and second principle medical expenses come under
some emergency circumstance and it is not for unlawful act hence the alienation
the property by karta is valid and justified.
A Hindu dies intestate leaving behind his mother, brother,
. Distribute the property.
Facts of the case :
A Hindu dies intestate.
He left behind his mother, brother, son, daughter-in-law .
. Issues in the case:
How to distribute A's intestate property'?
son, daughter-
pie: Intestate succession means the inheritance of property from a person who
without leaving a last will and testament.Accordingly, to carry out an "intestate
purely means to transfer something after the owner has died and in
with the State law of intestate succession.
~,,",':>"'IVIl"
•
•
•
are four classes of legal heirs. The property will pass on exclusively to
heirs specified in Class- 1. If these Class-I
relatives include wife, son /
, mother, son! daughter of predeceased son or daughter, widow of the
nrececeaseu son and few such relatives. The property would be distributed in
share to widow .mother and each of children. In case, any of the child has
""'U'-''''''''''''''..l, his spouse and children will collectively get his / her share.
.
: A has died. He has left behind, his wife, C, his mother and D, elder son,
son and G, his daughter. E , his middle son had died few years earlier and
behind his wife E-l , and two children E-2, and E - 3. His property would be
in 6 parts. Each legal heir would get one part. Wife and children of deceased
collectively get one part. The legal heirs specified in Class-Il will get the
of the deceased only if there is no relative in Class-I.
In this schedule, Father is named first and brother sister as second so
other than father noother Class- I heirs are there the father only get the entire
In the given case to deceased person Classs- I heirs such as his
"'''''''1''"'' and son are there.
So property will be divided equally between his
"
and son equally.
His brother will come under Class-Il heir and he will not get any share and
.--.~.....ter +in-law also will not get any share. She gets share only if her husband
dies.
-"'1..".,.. "'1111,:
JB SERIES
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FAMILY
7.
A Hindu husband married again concealing the fact that he had wife a
children. Advise the second wife.
Facts of the case:
1. A Hindu husband married again.
2. He concealed about the fact that he had wife and children.
Issues in the case:
I. What are the remedies available to second wife?
iple:Jt..,.,
obtaine
divorce ~
together by
t
C
Thecondition:
\.;
1. That husb
Principle: When a person hides the fact of his previous marriage and gets
again. then it constitutes fraudulent action. Thus it is illegal. Section 494 states
any person who is already having' a husband or wife and marries another person'
existence of previous spouse. then the person shall be punished with impriso "'''''_Tn
which shall extend to seven years and would be liable to fine.
1'.ltVU!
more. \wi
That they
That b(\w(
disso Ive-l.
'-'
the afor
petitio,-",
Rights of the second wife:
• There is no provision for the right of a second wife in the case of a
marriage. She cannot claim the property right of her husband.
• But a second wife can claim the rights if the marriage is valid under
exceptions provided in Section 494 of I PC.
• Where the second marriage has taken place according to the Hindu Marri
but is invalid according to the -provisions of this act, then the second wife
right to claim
Judgement:
In the given case the second marriage of a Hindu man and
woman is illegal as he is already married and had children.So the second
is illegaland the Hindu man shall be punished with imprisonment which shall
to seven years and would be liable to fine.
But his second wife will not have any rights to claim because their
marriage is invalid and void.
8.
A.and B a Hindu husband and wife mutually agreed to take divorce
in-six months from the date of marriage(Le, divorce by mutual conse
possible to get divorce under section 13B of the Hindu Marriage Act
Examine.
• Facts of the case :
1. A and B are Hindu husband and wife.
2. They agreed to take mutually consent divorce from the date of Marriage.
Issues in the case:
1. Is it possible to get divorce under section 13B of the Hindu Marriage Act
Hi~
r~
of
'-'
•..
•
•
•
•
•
'e and
FAMILY LAW
Principle:As the name itself suggests, divorce by mutual consent means a decree of
divorce obtained when both parties to the marriage, i.e., both husband and wife, agree
for divorce in an amicable manner, with no party opposing it. A joint petition is filed
together by both parties.
The conditions for making joint petition for divorce by mutual consent.
1. That husband and wife have been living separately for a period of one year or
more.
That they have not been able to live together.
.
That both husband and wife have mutua II)' agreed that the marriage should be
dissolved.
'
re the aforesaid 3 conditions are satisfied. both the husband and wife can file a
petition before the District Court for dissolution of marriage, i.e., for divorce by
consent, under the provisions of the aforesaid Section 13-B of the Hindu
Act.
Judgement: In the given case the couple Iived together only just for 6 months
as per Section 13-B of the Hindu Marriage Act that husband and wife have been
separately for a period of one year or more. But in the given case the couple
to take mutual consent divorce within 6 months. So for this couple Section
-B of the Hindu Marriage Act is not applicable and courts will not accept their
consent divorce petition. So it is not possible to get divorce under section
of the Hindu Marriage Act 1955. They need to wait atleast one year more.
marriage between two Hindus was solemnized in a temple in the
esence of elders of both sides of bride and bridegroom. But no ceremony was
except exchanging of garlands made of flowers. What is the legal status
marriage?
Facts of the case
A marriage between two Hindus was solemnized .
. It was solemnized in a temple .
•.It was solemnized in the presence of elders of both sides of bride and
.They did not follow any of the marriage ceremonies.
just exchanged the flowergarlands.
[·....,."u.:~in the case :
is the legal status of the marriage
.
Section 7 of the Hindu marriage act 1955 states the solemnization of
Hindu marriage, The Hindu wedding follows the Vedic rituals and the three
. rituals Kanyadaan, Panigrahana and Saptapadi. The first means the giving
of the bride by the father, second means the bride and groom holding
JB SERIES
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55
hands in front of the fire and third the most significant one is the making
rounds around the sacred fire.
It is concerned with the Saptapadi which means that taking seven rounds around
fire with their partner; after its completion, marriage becomes complete.
• Judgement: In the given case the above mentioned rituals were not followed'
their marriage. So that marriage is legally not valid.
10. A girl. of 20 years consented
to the marriage
under force
misrepresentatiqn
of the parents. What is the remedy you would suggest if
needs your advice?
• Facts of the case :
1. A girl of 20 years consented to the marriage.
2. She consented under force and misrepresentation of the parents for
marriage.
• Issues in the case:
I. What is the remedy available or that girl ?
• Principle: As per the laws in India, both men and women have rights
forced marriages. The rights are applicable overall. Both men and women
right to enter into marriage and freely choose a partner of their choice.
• The Delhi High Court has said the right to choose one's life partner
fundamental right. "The right to choose your life partner, or whom you as
with, is a fundamental right. It is an integral part of the right to life.
• Forced Marriage is voidable as per Hindu Law .If the complaining party
not give explicit consent for the marriage; a court can void it, even under
Law.
• Judgement: In the given case also a girl of 20 years consented to the
under force and misrepresentation of the parents. As per the above
.
as per the laws in India, both men and women have rights against
marriages. So in the given case the girl also can file a case to nullify
marriage.
11. A, a Hindu dies leaving behind his wife (U), mother (M), married da
(Dl) and unmarried daughter (D2). At the time of his death, he had
Rs. 40,00,000. Distribute the property according to Law.
• Facts of the case:
1. A Hindu dies intestate.
2. He left behind his wife (U), mother (M), married daughter (Dl) and
daughter (D2).
3. He had property ofRs. 40,00,000.
• Issues in the case :
1. How to distribute the 40,00,000 Rupees property?
•
Princ'_'t
'intestate
Class~
and trp
then t~i
I
18. '-'
•
Judgern
under~i
unma\_/
among a
\.A, a Hind
of~
Facts of t
A,aH~
He adcr~_e
Issues
Whethv
Principle
male 1,-,(
and in cs
...•.
getling\.;·1
they are
. renounset
wr
••
FAMILY LAW
•
cad
18.
l-ed'
•
'.•
st if
Principle: In legal terms, the person who dies without leaving a will is called an
'intestate', In legal terms, the son, daughter, wife and mother are all called
Class-l heirs and the money would be shared equally among them. Here the son
and the daughter are assumed to be adults and not minors, If they are minors,
then their amount of the property would be held by their mother until they are
•
Judgement:As per the above principle in the given case all the persons come
under Class-I heirs. I ehis wife (U), mother (M). married daughter (0 I) and
unmarried daughter (02). So the money' Rupees 40.00.000 should be distributed
among all ofthcm equally.
12. A, a Hindu adopted a girl child without the consent of his wife. What is the
status of adoption under Law
• Facts of the case :
1. A, a Hindu adopted a girl child.
2. He adopted without his wife's consent.
• Issues in the case:
1. Whether such adoption is valid or not?
• Principle: Section 7 of Hindu Adoption and Maintenance Act 1956 states that a
male Hindu person can adopt a son or daughter only with the consent of his wife
and in case of many wives all of their consent is mandatory . The only way of
getting around obtaining the permission of the wife or of the wives is if she or if
they are unsound, if they have died, if they have completely and finally
renounced the world, and ifthey have ceased to be a Hindu.
The Allahabad High Court in one case held that a man, living separately from his
wife without obtaining a divorce,also needs the consent of such estranged wife.
Judgement: No, It is not a valid adoption because Section 7 of Hindu Adoption
and Maintenance Act 1956 provides that a male Hindu person can adopt a son or
daughter only with the consent of his wife. But in the given case it is clearly given
that the Hindu male adopted a girl child without his wife's consent. So it is not a
valid adoption.
13. A, a Hindu male is married to Bin 1958. A becomes a convert to Christianity.
In 1959, B sues A for divorce. Decide.
• Facts of the case
1. A, a Hindu male is married to Bin 1958.
2. A becomes a convert to Christianity.
3. In 1959 B sues A for divorce ..
• Issues in the case
2. Whether she ( B) gets divorce or not?
JB SERIES
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JlFi
\.f
57
Principle: Under the Hindu Marriage Act 1955 Section 13 illustrates
grounds for divorce. Among them conversion is one of the grounds to file a di
petition in the court of law. Conversion means that the person has vol
relinquished his or her religion and adopted another religion after going through
formal ceremony. If a Hindu embraces a totally different religion. such
Christianity or Islam, he or she may be stated to be a converted.
The party who ceases to be a Hindu by conversion cannot file a petition
divorce under this section. This ground can be claimed only by the other party.
The Hindu marriage act has proposed two conditions when conversion as a ,,~~..__,
for divorce can be invoked. these are:
• That the respondent has ceased to follow the faith of Hinduism. that is he is no
longer a Hindu
• That the respondent has converted to another religion that is a non-Hindu
•
Judgement:
According to Section 13 off Hindu Marriage Act in the given
B will succeed in her case and she will get divorce on the grounds of con
•
Is~;
1.
What
•
Prltltj
hU~
any
pr~1
ancest
Inv
decca:
tha~t
The \\
the~1
mott-e
Hon'b'li
she
further
the hU'-'l
U
14. A makes a gift of his ancestral property. A son is born to him two months ..
later. Can the gift be set aside and if so, to what extent?
• Facts of the case :
1. A makes a gift of his ancestral property.
2. A son is born to him two months later.
• Issues in the case:
1. Can the gift be set aside and if so , to what extent?
• Principle:
The property which comes to an inheritor from one of his
immediate paternal ancestors as absolute property owing to the absence of
grandsons, becomes ancestral property with the birth of them. But an
made by the inheritor before such birth cannot be impeached.
Judgement: In the given case A makes a gift from his ancestral property. At the
of making gift his son was not born. So as per the above principle
A was an absolute owner of the inherited property as he didn't have children
time. Hence it was a valid gift and it cannot be set asidebecausean alienation
the inheritor before such birth cannot be impeached.
was mar
villa..,.
Fa~
A girl
Sh~
mater
Th~
Issue:
W~
Prit('
parl!t
15. A and B both wife and husband, after six months, her husband met
co\l
four!
In~
herir
accident and wife became widow. Advise widow's rights of property.
Re~
•
•
•
•
Facts of the case:
A and B both wife and husband.
After six months, her husband met with an accident.
In that accident her husband died and she became widow.
COpt
Co~
'-'
•
•
FAMILY LAW
•
Issues in the case:
1. What are the rights of the widow in her husband's property?
•
Principle: Hindu Widow has right on the property of the deceased Hindu
husband provided that the husband died intestate, namely, without making
any Will. The right on the self acquired or owned property as well the partial
property that would have come to the husband by way of partition of the
ancestral or coparcenary property.
In other words the wifes share in the ancestral family property of the
deceased husband isonly up to the share that would have come to him out of
that complete ancestral family property.
The widow gets only one share in the properties of the deceased husband as
the other shares shall go to all the children of the couple and one share to the
mother of the deceased husband ifshe is alive.
Hon'ble Bombay High Court in a recent judgment has ruled that a widow, even
she has remarried, has the rights over her former husband's properties. The
further observed the widow even after remarriage would quality as Class I heir
the husband's kin would still be a Class II heir.
rUdl~enrlen: in the given case the widow will get all her share in her husband's self
or owned property as well the partial property that would have come to the
by way of partition of the ancestral or coparcenary property.
'....,V'~HU
A girl of 18 years was taken away from lawful custody of her parents by force
was married to a person who was her maternal uncle's son in a temple near
village. What is the remedy available to the girl?
Facts of the case :
A girl of 18 years was taken away from lawful custody of her parents
She was taken away by force and was married to a person who was her
maternal uncle's son.
The marriage took place in a a temple near their village
Issues in the case
What is the remedy available to the girl?
Principle:A marriage which can be annulled or avoided of one or both the
parties is known as voidable marriage. Section 12 of the Hindu marriage Act
contains relevant provisions of voidable marriage. This section lays down
four grounds on which a Hindu marriage becomes voidable. They are
Inability of the respondent to consummate the marriage on account of his or
her impotency.
Respondent's incapacity to give consent or suffering from a mental disorder.
Consent of the petitioner being obtained by fraud or force.
Concealment of Pre-marriage pregnancy by the respondent.
JB SERIES
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FAMilY LAW
Judgement:In the given case also the girl can filea suit in the court to nul1ify
the marriage as she did not give free consent and she was kidnapped and was
forced to marry that person.
17. A Hindu dies leaving behind his father, mother, two sons and two daughte
the time of his death he has 30 lakhs of self-acquired property. Distribute pro
among his legal heirs according to the order of preference.
• Facts of the case :
1. A Hindu dies leaving behind his father, mother,two sons and two daughters.
2. At the time of his death he has 30 lakhs of self-acquired property.
• Issues in the case:
1. How to distributethe property among his legal heirs according to the order
preference.
Principle:
The property of a Hindu male dying intestate is distributed among his
heirs in accordance with section 8 and 9 of The Hindu Succession Act, 1956. As per
these the property of a Hindu dying intestate devolves upon his heirs of
Class I
The property of an intestate shall be divided among the heirs in class Iof the
Schedule in accordance with the following rules:Rule I.-The intestate's widow, or ifthere are more widows than one, all the
widows together, shal1 take one share.
Rule 2.- The surviving sons and daughters and the mother of the intestate shall
each take one share.
Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased.
daughter of the intestate shall take between them one share.
Rule 4.-The distribution of the share referred to in Rule 3(i) among the heirs in the branch of the pre-deceased son shall be so
made that his widow (or widows together), and the surviving sons and
daughters get equal portions; and the branch of his pre-deceased sons gets the
portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall
so made that the surviving sons and daughters get equal portions.
•
Judgement: As per the above mentioned rules in the given case Class- I
include his widow , mother, 2 sons and 2 daughters are there and his father
comes under Class- II heir. So the 30 lakhs property will be distributed among all
6 Class- I heirs. i.e each gets five lakhs rupees. ( mother, widow, 2 sons,
2 daughters) 30 lakhs / 6 heirs = 5 lakhs.
60
\w
~
only in
I
~
18·V
marrrag.
this 1\.;'
·V
• X, a
• l\.t
• Iss"
What ~J
Princi~
Hindu Me
should~
void U1)'Je
make ~c
Law.dU.
marriage
J
bestow\,;'
JudgeI:[_-!
Hindu l\1aJ
19. A
rhrrl
Is it a
V(:'
• Fai~~
• A Il(n
Issuef..t
• Is iA.i
P~inciplr ,
:Htndus ."f
•
"
FAMILY LAW
Father will not get any share as he is Class-2 heir. He gets the share
only in the absence of Class-I heirs.
18. X, a Hindu married Z again during the life time of his wife Y. the second
marriage was consented by all the relatives of X, Y and Z. What is the status of
this marriage under Hindu Marriage Act 1955?
•
•
• Facts of the case :
• X, a Hindu married Z again during the life time of his wife Y .
• The second marriage was consented by all the relatives of X, Y and Z.
• Issues in the case :
What is the status of this marriage under Hindu Marriage Act 1955?
:.der
01
.per
h~
•
••
•
Principle:The Hindu Marriage Act, 1955, prohibits polygamy. Section 5 of the
Hindu Marriage Act, 1955, specifies that at the time of marriage, none of the parties
should have a living spouse. Si...',-·tl!lI.! marriage with the consent
the !llst \\ ill' is
void under section 11 of the l lindu Marriage Act. 1955. Consent of first wife will not
make Second marriage legal.
Law does not permit bigamous marriages for Hindus. If anybody goes for second
marriage it will be illegal and the second wife will not enjoy any rights which are
bestowed on a legally married wife.
or
ill the
Judgement:So in the given case the marriage of X with Z is illegal and void under
Hindu Marriage Act 1955.
~iall
19. A Hindu male married a Christian female without solemnizing the ceremonies.
Is it a valid marriage under the Hindu Marriage Act, 1955? Give reasons.
•
~Wd
•!.
• Facts of the case :
• A Hindu male married a Christian female without solemnizing the
ceremonies.
Issues in the case :
• Is it a valid marriage under the Hindu Marriage Act, 1955?
Principle: According to Hindu Marriage Act 1955 bride and bridegroom should be
Hindus. Marriage in the Hindu religion is a sacred tie performed by certain ceremonies
and rites like kanyadaan ,varadakshina ,saptapadietc which are necessary for a valid
marriage. There are three important stages wherein certain ceremonies are to be
performed. Then only that marriage will be considered as a valid marriage. Without
these ceremonies if any couple marry such marriage will not be a valid marriage.
JUdgement:In the given case it is clearly given that A Hindu married a Christian female
without solemnizing the ceremonies which are mandatory. So it is not a valid marriage
under the Hindu Marriage Act, 1955.
JB SERIES
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FAMILY
~.
----------------------------------------------~~~
20. A Hindu female dies intestate leaving behind her husband, daughter and
parents. Distribute the property.
•
•
•
•
1.
•
Facts of the case :
A Hindu female dies intestate.
She has her husband .. daughter and her parents
Issues in the case:
How to distribute her property?
Principle:As per the present position of law, her property would devolve in
second category i.e. to her husband's heirs. Thus, in case the mother of
husband is alive, the deceased Hindu female's entire self-acquired pro
would devolve on her mother-in-law. If the mother-in-law is also not alive,
would devolve as per the rules laid down in the case of a Hindu male
intestate. Thus, if the father of her deceased husband is alive, the next in line
and if the father-in-law is also
inherit the property will he her Iather-in-law
alive, then her property \\ ould devolve on the brother and sister of the dec
husband. Thus, the entire self-acquired property of the Hindu female would
in the brothers and sisters ofthe pre-deceased husband and not that of the
female even if she has siblings that are alive.
Therefore, where a Hindu female dies intestate leaving behind her self-ac
property and in case where her heirs in the first category fail, her property
devolve totally upon her husband's heirs who may be very" remotely related
probably even unaware of each other's existence.
• Judgement:Based on the above principle in the given case the women's
will be distributed equally between her husband and her daughter only as they
Class-I heirs. Her parents will not get any share in the property.
21. The Karta of a Hindu Joint Family sold certain immovable property
family for medical purpose of one of the members of family. Discuss the
this sale.
• Facts of the case ;
• The Karta ofa Hindu Joint Family sold certain immovable property of the
family
• He sold for medical purpose of one of the members of family.
• Issues in the case:
2. Is it a valid sale?
• Principle :The karta has the duty to spend the joint family funds only for the
purposes of the family and should spend reasonably
Judgement:As the karta has the duty to maintain the joint family implies
all the family members needed medical expenses. It is also comes under
expenditure only and also health is very important to all. So it is a valid sale
was not for any immoral purposes.
22. A l\.t,(
from him
husban~J
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the spouse
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file the~
he/she car
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1. Is the
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FAMILY LAW
MILY
and her
22. A Hindu wife, who is subjected to cruelty by her husband, wants to live apart
from him without divorce. She also wants to claim maintenance
against her
husband. Advise her.
Facts of the case:
• A Hindu wife is subjected to cruelty by her husband.
• She wants to live apart from him \\ ithout divorce.
• She also wants to claim maintenance against her husband.
• Issues in the case:
3. Without taking divorce can she claim maintenance against her husband?
•
Principle:Section
125 Code of Criminal Procedure provides right to maintenance to
the spouse, children and parents. Those who are not able to maintain themselves can
_,rt''''~••, claim right to maintenance
under Section 125 Cr P C by way of filing a simple
application before the concerned Magistrate/Mahila Court. No court fee is payable to
file the application and in case the claimant is not able to hire the service of a lawyer.
,"""'\,11., he/she can approach to the District Legal Aid Authority for provide a lawyer and who
is paid by the Authority. No fee or expenses is payable by the claimant to the lawyer
provided by the Legal Aid Authority
No divorce petition is required
to be filed to claim maintenance
from the
spouses
Judgement:Based
on the above principle the wife in the given case can claim'
maintenance from her husband under section 125 Cr.P.C.
23. A Hindu male aged 40 years adopts a daughter aged 20 years, while he has a
daughter living at the time of adoption. Is the adoption valid?
f.•
••
W
the
• Facts of the case:
• A Hindu male aged 40 years adopts a daughter.
• Her age is 20 years.
• He has a daughter living at the time of adoption.
Issues in the case:
1. Is the adoption valid? .
Principle:
a. In case of adoption of a daughter by any Hindu male or female, they should not
have any daughter or son's daughter at the time of adoption.
h. Where there is an adoption of a daughter by a male then the adoptive father
should be at least twenty-one years older than the child.
·Judgement:In
the given case A Hindu male aged 40 years adopts a daughter
aged 20 years, while he has a daughter living at the time of adoption.
His adoption is against the above mentioned rules of adoption as the age
difference between the adopted girl and the person adopted is only 20 years and
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not 21 years. Secondly he is already having a girl at the time of adoption. So
adoption is not valid.
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•
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24. A died in 1933. His daughter B becomes heir. She dies in 1969 without issue.
The property is claimed by A's sister and 8's husband. Decide.
.. Facts of the case:
.. A died in 1933.
.. His daughter B becomes heir.
.. She dies in 1969 without issue.
.. The property is claimed by A' s sister and B' s husband.
.. Issues in the case:
• y
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Issues in
•
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•
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C\,..t
To whom the property ofB goes?
• Con
..
• Tbe
Principle:Class I heirs of a female dying intestate would be her husband and
children.
.. Judgement: So in the given case B has no children her inherited property will
her husband because he is her class I heir.
25. Both wife and husband are employees. vyife divorced and wants to claim
right of custody of her minor children against husband. Advise her.
.. Facts of the case :
1. Both wife and husband are employees.
2. Wife divorced and wants to claim the right of custody of her minor chi
against husband.
.. Issues in the case:
1. Whether she will get the custody of her minor children against husband?
.. Principle:The custody of child in India depends upon the parents and re
The custody of child in our country is governed by the personal laws
religion practices with Guardians and Wards Act, 1890 which is app
every citizen. While deciding the custody, the financial positions of the
background, lifestyle and welfare is taken into consideration.
• Judgement:As per the above principlein the given case as both wife
husband are employees the wife can claim the custody of her minor chil
she has financial capacity to take care of her children.
26. X, a Hindu husband
marriage and married Z
a case against X for the
second marriage null and
Facts of the case:
converted to Islam solely for the purpose of
without dissolving his first marriage with wife. Y
offence of bigamy and sought direction to make
void. Decide.
l~
a~
husban( ]'
living, he
during\...;
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•
•
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on. So
•
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FAMILY LAW
LAW
•
•
•
•
•
X. a Hindu husband converted to Islam.
He did so solely for the purpose of second marriage.
And married Z without dissolving his first marriage with wife.
Y filed a case against X for the offence of bigamy.
Y sought direction to make the second marriage null and void.
Issues in the case:
• Will the court make the second marriage null and void?
Principle:
• A Hindu marriage solemnised under the Act can only be dissolved on.any of
the grounds specified under the Act.
• Till the time a Hindu marriage is dissolved under the Act none of the spouses
can contract second marriage.
• Conversion to Islam and marrying again would not. by itself, dissolve the
Hindu marriage under the Act.
• The second marriage by a convert would therefore be in violation of the Act
and as such void in terms of Section 494, IPC
All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu
husband who marries for the second time after conversion to Islam. He has a wife
living, he marries again. The said marriage is void by reason of its taking place
during the life of the first wife.
We, therefore, hold that the second marriage of a Hindu husband after his conversion
Islam is a void marriage in terms of Section 494 IPC.
: According to the above principle in the given case the marriage of a
husband with Z without dissolving his first marriage is void. Hence she will
the same judgement making the the second marriage null and void in the court
her favour.
During the lifetime of 'F', the father, the grandmother appointed M, the
of the minor children as guardian by executing a will . M proposed to
.... c... ~.
the properties bequeathed to the minor children. F objected and filed a
for injunction preventing
M to make the transfer of the properties to his
on the ground that he is the natural guardian of his minor children.
of the case:
During the lifetime of • F' , the father, the grandmother appointed M, the
mother of the minor children as guardian.
M appointed mother as guardian by executing a will ..
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FAMILY
• M proposed to transfer the properties bequeathed to the minor children.
• .F objected and filed a suit for injunction.
• F filed a suit preventing M to make the transfer of the properties to his
children on the ground that he is the natural guardian of his minor children ..
Issues in the case:
• Is M's decision correct or not?
Principle: The Law: Section 6 of India's Hindu Minority and Guardianship Act, 1
provides that the natural guardian ofa Hindu minor boy or unmarried girl is the
father, and only after him, the mother. It also provides that the guardian of a married
minor girl is her husband.
66
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say 111)
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\..0Section 6. Natural Guardian: The natural guardians of a Hindu, minor, in respect
Hil
of the minor's person as well as in respect of the minor's property (excluding his or
Distrib~
her undivided interest injoint family property). are-
• in the case of a boy or an unmarried girl-the father, and after him, the
mother: provided that the custody of a minor who has not completed the age
of five years shall ordinarily be with the mother;
• in the case of an illegitimate boy or an illegitimate unmarried girl - the
and after her, the father;
• In the case of a married girl- the husband.
.J\.)
• He I
Judgement:
Based on the above principle it is very clear that when father is
mother cannot become the natural guardian of minor children. In the given
mother cannot become the natural guardian of her children when their father is
. Their grandmother's Will won't have any effect regarding the guardian ship
case.
28. A files a petition for restitution
of conjugal rights against his wife.
petition is dismissed since B had sufficient reason to stay away for
A
taken another wife. The wife claims maintenance under section 25 of
marriage Act. Decide.
2\.1
Facts of the Case:
3. ,
• 'A' files a petition for restitution of conjugal rights against his wife'
• The petition is dismissed since B had sufficient reason to stay away for'
had taken another wife.
• The wife claims maintenance under Section 25.
1~
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4. (
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1
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5 .
Issues in the case:
1. Whether the wife gets maintenance or not?
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e
aed
:•.ct
I
r
•
• Principle:
Under Section 25 of the Hindu Marriage Act, either spouse can
claim maintenance and permanent alimony but that can be done only after
judicial separation or after divorce. When the marriage is subsisting there is no
question of applicability of Section 25.
• Judgement: So with the above principle it is very clear that Under Section
25 of the Hindu Marriage Act, either spouse can claim maintenance and
permanent alimony but that can be done only after judicial separation or after
divorce. But in the given case B the wife of A is staying away from her husband
saying that he has taken another wife which is not proved in the court and she
did not take divorce from him i.e their marriage is still suhsisting. So there is no
question of applicability
of Section
25
i.e' she
cannot
claim
Maintenance(permanent alimony).
29. A Hindu dies intestate leaving behind his mother, father, widow and son.
Distribute the property.
Facts of the case:
• A Hindu dies intestate.
• He left behind his mother, father, widow and son.
Issues in the case:
• How to distribute property?
Principle: Rules for devolution of property of a Male Intestate on the death of
an intestate, the property shall first devolve to class I heirs, as long as a single
class I heir is present, the property will not go to heirs in class II category.
Following are the rules governing the division of interest among class I heirs.
1. The share of each son and daughter, and that of the mother shall be equal.
2. The widow of the deceased shall take one share and if there is more than
one widow all of them, collectively take one share i.e., the share equal to
the son or daughter and will divide it equally among themselves.
3. A predeceased son survived by a widow or son or daughter shall be allotted
a share equal to a living son.
4. Out of the portion allotted to the predeceased son his widow and living sons
and daughters will take equal portions with respect to each other. Any
branch of the predeceased son of this predeceased son will get an equal
portion.
5. The rule applicable to the branch of predeceased son of the predeceased son
is the same as of predeceased son wherein son, daughter and widow will get
an equal share.
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67
6. A predeceased daughter who is survived by a son or a daughter is to
allotted an equal share to that of a living daughter.
7. The son and daughter of the predeceased daughter shall take an
portion in the share. The same rule shall apply to any branches
predeceased daughter of a predeceased daughter.
Judgement: As per above principle in the given case class I heirs are
widow and son. So they all get one share equally.
• As long as a single class I heir is present, the property will not go to heirs'
class II category. Hence father being a class-Il sub category -1 will not get
share in the property.
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LAW OF CONSTITUTION
LLB 3YDC I SEMISTER
~\
PAPER III - LAW OF CONSTITUTION - I
19~
CONTENTS
20~
PART- A QUESTIONS
21~n
I. Rule of Law
22~
') Citizenship by domicile
3. Right to Property
4. Modes of Termination of a citizenship
5. Right to work
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2\JV
6. Equal pay for equal work
2V
7. Freedom of Assembly:
8. Rights of arrested persons
2\:11
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9. Right to speedy trial
2\:
1O.Res Judicata
30:F
11.Uniform Civil Code
31.\\
I2.RELIGIOUS DENOMINATION
32.\\
I3.Right to life. ( Article 21 )
'-'
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I4.Doctrine of severability
I5.Doctrine of Eclipse
I6.Constituent Assembly
I7.Right to Education (RTE )
I8.Article 51A: Fundamental duties
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30
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•
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•
•
•
•
•
•
•
•
•
•
•
•
2
L/\\V OF CONSTITUTION
PART - B QUESTIONS
19. What are the salient features of our Constitution?
20. What are the importance of Directive Principles of State Policy.
21.Enforcement of fundamental duties.
22.Write about Judicial Review.
23.Discuss the significance of the Preamble to the Constitution of India. Is it basic
structure 0 f the constitution?
24.Describe the Government of India Act 1935
25.Write in detail about the government of India Act 1919.
26.What is the importance of Article 14(Right to equality) in our Constitution?
27.1nhow many modes a person can acquire a Citizenship?
28.What is Double Jeopardy? Write with decided Case Law.
29.What are the different types of Constitutions?
30. Examine the role of Drafting Committee in framing the Indian Constitution.
31.Why the Constituent Assembly is formed?
32.What was the basic idea of Socialism? And how did socialism affect the
economy?
33.What are the features of Federal Constitution?
34.Write about Secularism. Explain the scope and nature of the right to freedom of
religion in India with the help of decided cases.
35.Write about Diarchy. What are the features ofDiarchy?
36.What is privilege against self-incrimination?
37.Explain our fundamental Rights.
38.What is meant by Free Legal Aid? Is Free Legal Aid is a fundamental right?
39. What is Reasonable Classification? How does it protect equality?
40.Protection against Ex-Facto Law.
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LAW OF CON::' III U IlON
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41. Explain the constitutional provisions relating to formation of new states in
-".IUII_
of India.
42. Explain the Unitary elements in the Indian Constitution.
43. Explain
the scope and nature of the freedom
of speech
and
guaranteed to Indian citizens.
An~'
appliec
peo~.
44. Explain the nature of the Indian Constitution.
How did the Supreme
interpret the same?
45. Describe the Evolution and Institutionalization
of the concept of Public
Litigation (PIL) in India.
should
"
Meani
The\.h
1. Sup
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('-"'1\
46. The Directive Principles are not justifiable but fundamental in the governance
the country. Explain.
47. Explain the Jurisdiction of Supreme Court under Article 32.
48. Explain the significance and classification Directive Principles of State Policy.
49. Define "State" under Article 12 of the Constitution with
case laws. Is the definition of a state.
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L/\V.' OF CO~!ST1TUTION
LA W OF CONSTITUTION
Part-A
-1
Answers
1.Rule of Law.
Ans. The rule of law is the concept that no one is above the law - it is
applied equally and fairly to both the government and citizens. This means that all
people, regardless of their status, race, culture. religion. or any other attribute,
should be ruled equally by just laws.
Meaning of the Rule of Law
The three meanings as given by Professor Dicey of the Rule or Law are:
1. Supremacy of the law or the absence of arbitrary power:
This means that absolute supremacy of law prevails contrary to the
Government's arbitrary power.
A man can only be punished due to a breach of law and nothing else.
2. Equality before law:
In the eyes of law, all are equal before law and no one is above law.
3. Absence of individual liberty:
A variety of constitution grants individual freedom but does not provide a
method.
The source of individuals' rights in the constitution is neither written nor
mentioned.
Provision for individual liberty is not in the U.K.
Rule of Law in India:
Supremacy of Law: It means a person can be punished for an infringement of the
law but cannot be held responsible and punished for anything else. In accordance
with the ordinary procedure, an alleged offence needs to be proven in front of the
court.
Equality before Law: Under Article 14, every person has equal protection and is
equal before law.
Exception to Rule of Law: The above mentioned rule of equality is not an
. absolute rule and contains a lot many exceptions to it and they are:
• A certain class of people being subject to some special rules are not prevented
by the rule of law.
Example- Armed forces members are controlled by their military rules; the
medical council of India controls the medical practitioners.
• Special rules in the professions govern those specific members of society.
These people are treated differently from other citizens.
Example- Doctors, police, lawyers, nurses, members of the armed forces, etc.
Why is the Rule of Law Important for Society?
• The rule of law is important because a country that adheres to the rule of law
results in a society in which:
• All persons and organizations including the government are subject to and
accountable to the law.
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LAW OF CONSTITUTION
•
•
The law is known and accessible.
The Court system is independent
impartial manner.
and resolves
disputes
in an open
• All persons are presumed innocent until proven otherwise by a Court.
• All persons have the right to a fair and prompt trial.
• No person should be arbitrarily arrested, imprisoned. or deprived
property.
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ImIT
of
•
Punishment is determined by a Court and people
accordance with the law.
• As a result. it can be said that the Rule of "Law is more than simply
government and citizens knowing and obeying the law. The Rule of
involves other ideals, for example that citizens remain active and informed
participate in the creation of just laws which regulate their behavior
protect human rights.
• At its heart. the Rule of Law is an ideal or an aspiration.
The Magna Carta established the rule or law and the idea that·
citizens, including those in power, should be fairly and equally ruled by
law. The Magna Carta ensured the King is no longer above the law. we
ruled by the law and the law alone, a qualified Independent J
..
confidence in Fair Process and the law is known by all.
2. Citizenship by domicile.
Ans. A citizenship is a legal status acquired by a person. Though India :
federation having two levels of government there is only one citizenship.
Example - Indian citizenship and no separate State citizenship.
Domicile is a legal term used to refer to the permanent or legal address
(place or country) of an individual. In business, domicile is the place or
in which a business is registered or has been incorporated. For a business to
Domicile will be the business' registered address or its registered office.
Classification of Citizens
a. Citizens by domicile
b. Citizens by migration.
c. Citizens by registration
Citizenship by domicile is one of the modes to acquire
Domicile in India is considered an essential requirement for acquiring the
Indian citizenship Article 5: of the Indian Constitution says about ci
domicile.
Citizenship During the Commencement of the Constitution: An .
who has been ordinarily resident in the Indian territory for at least 5
immediately preceding such commencement, shall be a citizen of India
.Residence alone in a place is not sufficient to constitute the domicile. .
be accompanied by the intention to make it his permanent home.
Every person having domicile in India at the commencement
If a pll.tc
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. ADS: AI1
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I AW OF CONSTITLJTION
constitution and fulfilling the following conditions is the citizen of India.
1. He should be born in India.
2. Either of his parents should born in India.
3. Who has been ordinarily resident in India for not less than 5 years
immediately preceding the commencement of the Constitution?
If a person fulfills the above conditions he can acquire citizenship by Domicile.
t to Property
: Article 300 A enumerates that: "No person shall be deprived of his property
by authority of law".
The 44th amendment has abolished the right to property as a fundamental'
Consequently, an aggrieved person cannot directly approach the Supreme
under Article 32 of the constitution for infringement of his fundamental
Moreover, the right to property is also not a basic feature of the constitution.
ow the right to property has very limited constitutional protection under Article
A. The state cannot deprive a person of his property saved by authority of law.
connotes that the government can acquire private property by making a law.
Currently, a deprived person cannot assail the said law on the basis that it
lates the fundamental right. The protection of Article 14 and 19 of the
.
of India is not available to a person under Article 300 A. But the
t is obliged to pay fair compensation for the acquired land.
compensation under Article 300 A
44th amendment Act has abolished the fundamental character of the right to
, Also, it is not a basic structure of the Indian constitution.
Article 300 A has no express provision that the government will pay
romlpelnsaltJ'IOn
to the expropriated owner. In Kesavananda
Bharati v State of
AIR 1973 se 1461; a majority decision of the Supreme Court held that
right to property was not part of the 'basic structure' of the Constitution,
after the Twenty-Fifth Amendment.
Right to property is still a constitutional right and the aggrieved person
challenge the acquisition proceeding under Article 226 of the constitution. He
seek justice from the High Court if the amount of compensation is unfair.
The Supreme Court in KT Plantation Private Ltd v State of Karnataka
(2011) 9 see 1; held that right to claim compensation is inbuilt in Article 300
A state can acquire the land only for the public purpose, The court can test
the amount of compensation.
of Termination of a citizenship
The Citizenship Act, 1955, prescribes three ways of losing citizenship
acquired under the Act or under the Constitution
.Renunciation
2.Termination
,Deprivation
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• By Renunciation
1. Any citizen ofIndia can make a declaration renouncing is Indian citizenship.
6. Equa,-,:
2. However, ifsuch a declaration is made during a war in which India is
ADS: Th
engaged, its registration shall be withheld by the Central Government.
funda'tWe
3. Further, when a person renounces his Indian citizenship, every minor child
that person also loses Indian citizenship.
light
Servi~
4. But, when such a child attains the age of 18, he may resume Indian
citizenship.
all thV
wages, a
• By Termination
empk~
1. When an Indian citizen voluntarily acquires the citizenship of another country,
Court of
he/she automatically ceases to be Indian.
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2. This provision does not apply during a war in which India is engaged.
impleme
• By Deprivation - It is a mandatory termination of Indian citizenship by the
and~
Central government, if:
prever=b
~ The citizen has obtained the citizenship by fraud:
settin~'t
~ The citizen has shown disloyalty to the Constitution of India;
~ The citizen has unlawfully traded or communicated with the enemy
wom~1
during a war;
comp\.,;
~ The citizen has, within five years after registration or naturalization,
be appoi
been imprisoned in any country for two years; and
beingv
~ The citizen has been ordinarily resident out of India for seven years
N
continuously (not applicable to students studying abroad or to ..
in the service of a government in India or an international
of which India is a member, or to citizens who register annually at
Indian consulate regarding their intention to retain his Indian
citizenship ).
c:
5. Right to work
Ans: Right to work is the idea that individuals have a human right to work
part in productive employment. The right to work is ( respected)
in the U
Declaration of Human Rights and recognized in international human .
through its incorporation in the International Covenant on Economic,
Cultural Rights, where the right to work focuses on financial, social and
development.
The 'right to work' subsequently is the most basic component of life to
have the basic needs of food, water, clothing and shelter and
something more than simply the basic needs of life one must work to earn.
However, the Indian Constitution does not expressly recognize the 'right to
as a fundamental right. It is set in Part IV (Directive Principles of State
the Constitution under Article 41, which is not enforceable in the court.
turned into a 'fundamental right' through a judicial interpretation.
All because of the wider interpretation of Article 21 made by the Hon'ble
Court through its judgment in Olga Tellis and Ors.v Bombay
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LAW OF CON~TITUT;Oi~
Corporation and Ors.- 'right to work' was perceived as a fundamental right
inalienable in the 'right to life'.
6. Equal pay for equal work
Ans: Though the principle is not expressly declared by the Constitution to be a
fundamental right yet it may be concluded by construing Articles. 14 and 16 in the
light of Art.39( d).
Service Law - The principle of 'equal pay for equal work' would be applicable to
all the concerned temporary employees, so as to vest in them the right to claim
wages, at par with the minimum or the pay-scale of regularly engaged Government
employees, holding the same post. State of Punjab Vs. Jagjit Singh ISupreme
Court of India, 26-10-2016].
'
Indian Parliament has enacted the equal remuneration act. 1976, to
implement Art.39(d). The act provides for payment of equal remuneration to men
and women workers for the same work, or work of a similar nature and for the
prevention of discrimination against recruitment of women and provides for the
setting up of advisory committees to promote employment opportunities for a
women.
Provision is also made for appointment of officers for hearing and deciding
complaints regarding contraventions of the provisions of the Act. Inspectors are to
. be appointed for the purpose of investigating whether the provisions of the Act are
being compiled by the employers are not.
Non-observance of the Act by government contractors has been held to
;raise question under Art. 14. of Constitution Of India 1949 i.e. Equality before
law: The State shall not deny to any person equality before the law or the equal
orotection of the laws within the territory of India Prohibition of discrimination on
of religion, race, caste, sex or place of birth.
If there is a the differentiation in pay scales among employees holding same
and performing similar work, but difference in the degree of responsibility,
ility and confidentiality- it can be called as valid differentiation.
It is for further clarification, where employees are equal in every respect, in
educatio mar qualifications, duties, functions and measures of responsibilities and
they are denied equality in pay. If the classification for describing different
of pay is found to be on reasonable and logical, the principle will not apply.
---~ ... of Assembly:
The term "freedom of assembly" refers to the right of the people to
~--.-~~.lyorganize without having a fear of government's interference.
example: Freedom of assembly refers to an individual's right to join a protest
having to fear the government shutting the protest down.
however, their meeting turns violent, then law enforcement may step in to help
things back under control. Freedom of assembly protects people who want to
or promote their ideas without having to fear repercussions for expressing
ves.
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9
LAW OF CONSTITUTION
Examples of Freedom of Assembly
Freedom of assembly examples may sound like they are all rooted in protest,
this is not actually true. The freedom to assemble refers to the American people'
right to get together for any purpose such as:
• Hosting a party,
• having a board game night with the neighbours
• even going to church are all freedom of assembly examples
The difference, however. is that freedom of assembly protects those wh
the government believes may "cause trouble" when they get together.
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8. Ri~hts of arrested persons.
6. Righ
Ans: An accused has certain rights during the course of any investigation; enq
E\.ir:
or trial of offence with which he is charged, and he should be protected "S<"U~II":
OW'1
arbitrary or illegal arrest. Given below are some of the most important rights 0
thk
arrested person:
th(.5
I. Right to Silence: As per the law of evidence, any statement or confession
has a
to a police officer is not admissible in a court of law. Right to silence is
8.R l
concerned about confession. The breaking of silence by the accused can
The ~
before a magistrate but should be voluntary and without any duress
thV
inducement.
indig
As per Article 20(3) of Constitution of India guarantees every person
ri~
been given a right against self-incrimination, it states that any person who
wher
been accused of any offence, shall not be compelled to be a witness
reW
himself.
9.R\"~
2. Right To Know The Grounds of Arrest: As per Article 22(2) and
Se~
50(1) of Cr.P.C., every person who is being arrested by any police
wb -+]
without any warrant, is entitled to know the full particulars of offence for
sh~
he is being arrested, and that the police officer is duty bound to tell the
such particulars and cannot deny it nor he shall be denied the right to c
and to be defended by a legal practitioner of his choice
3. Information regarding the right to be released on bail: Any person
be arrested without a warrant and is not accused of a non-bailable offence
be informed by the police officer that he is entitled to be released on
payment of the surety amount. This helps persons who are a not aware
right to be released on bail.
4. Right to be taken before a Magistrate without delay: Irrespective of
that whether the arrest was made with or without a warrant, the person
making such arrest has to bring the arrested person before a judicial
without any unnecessary delay. Section 76 states
that such delay
exceed 24 hours in any case .. Further, the arrested person has to be
police station only and nowhere else, before taking him to the Magistrate.
matters have been provided in Cr.P.C. under sections 56 and 76 which
given below:
V
I AW OF rON<;TITI JTlON
Rights at Trial
Right to a Fair and speedy trial: The Constitution under Article 14 guarantees
the right to equality before the law. The Code of Criminal Procedure also
provides that for a trial to be fair, it must be an open court trial. This provision is
designed to ensure that convictions are not obtained in secret. In some
exceptional cases the trial may be held in camera.
In cases, wherein the maximum punishment that can be imposed is 2 years.
once the accused is arrested, the investigation for the trial has to be completed
within the period of six months or stopped on receiving an order from the
Magistrate, unless the Magistrate receives and accepts, with his reasons in
writing, that there is cause to extend the investigation.
Right to Consult a legal practitioner
Every person who is arrested has a right to consult a legal practitioner of his
own choice. This has been enshrined as a fundamental right in Article 22( 1) of
the Constitution of India, which cannot be denied in any case. Section 50(3) of
the Code also lays down that the person against whom proceedings are initiated
has a right to be defended by a pleader of his choice.
Rights of free legal aid
The Supreme Court in the case of in Khatri(lI) v. the State of Bihar has held that
the state is under a constitutional obligation to provide free legal aid to an
indigent accused person as is implicit in Article 21 of the Constitution. This
right does not come into picture only at the time of trial but exists at the time
when the accused is produced the first time before the magistrate, as also when
remanded from time to time.
Right to be examined by a medical practitioner
Section 54 of Cr.P.C. enumerates this right. - When a person who is arrested,
whether on a charge or otherwise, if the arrested person requests Magistrate
shall direct to do the examination of the body of such person by a registered
medical practitioner unless the Magistrate considers that the request is made for
the purpose of vexation or delay or for defeating the ends of justice."
to speedy trial
: Though this right has not been specifically mentioned in the Constitution,
, the SC in the HussainaraKhatoon case has made it mandatory that the
in the trial must be conducted "as expeditiously as possible."
cases, wherein the maximum punishment that can be imposed is 2 years, once
accused is arrested, the investigation for the trial has to be completed within
period of six months or stopped on receiving an order from the Magistrate,
s the Magistrate receives and accepts, with his reasons in writing, that there is
to extend the investigation.
One of the main reasons for the right to a speedy trial is to prevent a
from being held in custody for a long time, only to eventually be found
. If the defendant is denied bailor cannot pay the bail amount, they will
in jail until their trial date. An innocent citizen should not be required to
many months in prison . Also, the right to a speedy trial reduces the stress
JB SERIES
11
LAW OF CONSTITUTION
12
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on defendants and allows the defence to gather and present evidence while it i~
still fresh. A witness may struggle to recall the events leading to the charges
several months or more pass before the trial.
determ
rele\./
of the )
Speedy Sentencing
Federal Rules of Civil Procedure provide that a defendant is entitled to be
sentenced without an unnecessary delay. There also may be due process argurnej,
if a delay in sentencing is extreme. Death penalty cases, which involve a separate
sentencing phase, may present distinctive timing issues.
Conch
also'-'a
10. Res Judicata.
Ans: Section 11 of the Civil Procedure Code defines the doctrine of Res Judi
is the matter which has already heen judged. It means that no court will have
power to try any fresh suit or issues which have been already settled in the
suit between the same parties.
This doctrine is based on the principle that if the matter is already decided by
competent court then no one has the right to reopen it with the subsequent
.
is applied by the court where issues directly and substantially involved
the same parties in the former and present suit, are the same.
The doctrine of res judicata is based on three maxims. They are:1. Nemodebetbisvexari pro unaeteademcausa - It means no man shall be
punished twice for the same offence.
2·.Interest ReipublicaeUt Sit Finis Litium - It means it is in the interest of
state that there should be an end to litigation. Or Litigation must come to an
end.
3. Res Judicata Pro VeritateAccipitur - It means that a judicial decision
be accepted as correct.
Illustra tio n
A sues B on Cause of Action C, but A loses. Therefore, A may not try for
luck by initiating a new lawsuit against B on C.
Case Laws
In ManoharLal vs. Seth Hiralal, it was held that a court cannot proceed
subsequently instituted suit since the provisions contained in Section 10
Civil Procedure Code are mandatory, and no discretion is left with the court.
In Direct Recruit Class vs. the State of Maharashtra And Ors., the Supreme
held that "A dispute raised by a petition under Article 32 of the Constitution
be held to be barred by principles of res judicata including the rule of
.
res judicata underlying Explanation IV of Section 11 of the Code of
Procedure, if the same has been earlier decided by a competent court
judgment which became final."
In Supreme Court Employees' Welfare vs. Union of India And Anr., it
that "When it is said that a previous decision is res judicata, it is meant
right claimed has been adjudicated upon and cannot again be placed in a
between the same parties. A previous decision of a competent Court orn
which are the foundation of the right and the relevant law applicable
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detennination of the transaction which is the foundation of the right and the
relevant law applicable to the determination of the transactions which is the source
ofthe right is res judicata.
Conclusion: A court will use res judicata to deny reconsideration of a matter and
also a way of avoiding unnecessary waste of resources in the court system. Res
judicata does not merely prevent future judgments from contradicting earlier ones,
but also prevents litigants from multiplying judgments. and confusion.
11. Uniform Civil Code.
.
Ans: A Uniform Civil Code is one that would provide one law for the entire
country. applicable to all religious communities in their personal matters such as
marriage. divorce, inheritance, adoption etc. lJCC will end discrimination in
religions.
The constitution has a provision for Uniform Civil Code in Article 44 as
a Directive Principle of State Policy which states that "The State shall endeavor to
secure for the citizens a uniform civil code throughout the territory of India."
The objective of this endeavor should be to address the discrimination against
vulnerable groups and harmonize diverse cultural practices.
The Law Commission of India notes that the tracts of the Constituent Assembly
debates reveal a lack of consensus on what a potential uniform civil code would
entail.
While many thought the UCC would coexist alongside the personal law
systems, others thought that it was to replace the personal law. There were yet
others who believed that the UCC would deny the freedom of religion.It was this
uncertainty that led it to be included in the Directive Principles of State Policy
rather than the chapter on Fundamental Rights in the Constitution.
12.RELIGIOUS DENOMINATION.
Ans: The constitution does not define 'religious denomination'. In the landmark
judgment of the Commissioner Hindu Religious Endowments, Madras v. Sri
LakshmindraThirthaSwamiar of Sri Shirur Mutt a denomination is "a collection of
individuals, classed together under the same name; now almost always
specifically, specially a religious sect or body having a common faith and
organisation and designated by a distinctive name." s.p Mittal further settled the
law on the determination of the nature denomination.
Thus if a body has a:
Common Faith
Common Organization
Distinctive Name; it categorizes as a religious denomination.
Article 26 also includes the word "section" making it inclusive of a sect or
Sub-sect of a religion. Thus, AryaSamaj will be a religious denomination for the
purposes of this article even though it is not a religion in itself.
JB SERIES
LAW OF CONSTITUTlOi~
The term religious denomination in Article 26 is different from that
found in Article 30 which includes religious and lingual minorities. The extent of
the denomination is immaterial to exercise the protection under Article 26.
RIGHTS GUARANTEED UNDER ARTICLE 26:
• Right to establish and maintain institutions for religious and charitable
purpose:For a religious denomination to maintain the religious institution, it
has to be first established by the denomination claiming such right.
III the case oi Azeezliasba v. Union of India the court refused to grant Aligarh
Muslim University protection under Article 26. Since it was constituted under
a statute and not by Muslims, the community does not have the exclusive
right to administer it.
• Right to manage its own religious affairs: Basically, the court extended the
application of the 'Essential Religious Functions Test' evolved in the Shirur
Maus case. As a result, the entry of Harijans was allowed in the temple
except for certain ceremonies when only members of the community are
entitled to participate to the exclusion of all others.
• Right to own and acquire movable and immovable property along with
the right to administer it: The right to manage religious affairs cannot be
abridged ( shorten) by any law. These principles were established in
the RatialaPanachand Gandhi v. the State of Bombay
This is not an absolute right in the sense that it does not take away the power of
the state to acquire the property of the religious denomination. Therefore, not
only the denomination but also the state can govern the property.
CONCLUSION: It is clearly understood that under the Indian constitution
Article 26 freedom of religion also includes the group's right to pursue an
organized religion.
13. Right to life. (Article 21).
Ans: The right to life and liberty as envisaged under Article 21 of the Consti
is meaningless unless it encompasses within its sphere individual dignity.
21 weaves a string of an endless yam.
'Everyone has the right to life, liberty and the security of person.' The right to
is undoubtedly the most fundamental of all rights. Article 21 applies to
persons. The right is available to every person, citizen or alien. Thus,
foreigner can claim this right.
The fundamental right to life and personal liberty which has
inexhaustible source of many other rights and mentioned under the
subheads
Right to life: The Right to life under Article 21 means a life of dignity to live
proper and healthy environment.
The maintenance of various things like:
Health
• Proper sanitation system, and
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• Preservation of environment comes under the purview of the Article 21.
In the case of Vellore Citizens Welfare Forum vs Union of India the Supreme
Court held that though industries are vital for the country's development, having
regards to the pollution caused by them, the principle of 'sustainable
development' has to be adopted as the balancing concept.
Right to live with Human Dignity:
• Right against sexual harassment at workplace: In the case of Vishakha vs.
the State ofRajasthan, the court declared that sexual harassment of a working
woman workplace amounts to a violation of rights under Articles 14, 15 and
21 of the Indian Constitution.
• Right to, know or right to be informed:
In the case of Reliance
Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers that right to
know falls under the scope of Article 21
• Right of prisoners: Even though he is deprived of his other rights, but he is
entitled to the rights guaranteed under Article 21.
• Right against illegal detention: In the case of Rudul Shah vs. the State of
Bihar, the petitioner was kept in jail for 14 years even after his acquittal and he
was awarded 35000 Rupees as compensation.
'
• Right to Legal Aid: In the case of Khatri vs. the State of Bihar, the Supreme
Court held that the trial court is under the obligation to inform the accused of
his right to free legal aid.
• Right to speedy trial: The Indian Judiciary in the case of HussianaraKhatoon
vs. the State of Bihar, it was held that the right to speedy trial is an inalienable
right under Article 21 of the Indian Constitution.
• Right to compensation: In the case of Rudul Shah vs. the State of Bihar, the
petitioner was kept in jail for 14 years even after his acquittal and he was
awarde 35000 rupees as compensation .
• Right to Privacy: In the recent and the most debated case of Justice K.S.
Puttuswamy (Retd.) vs. Union of India and Other, the Supreme Court's 9
judges constitutional bench held privacy to be a fundamental right under the
Constitution of India.
• Right to die with dignity: Supreme Court of India held in the case
of Common Cause vs. Union of India that right to die with dignity IS a
fundamental right.
• Right to choose a life partner: Every citizen is free to choose his/ her
partner.
The right to life and liberty as envisaged under Article 21 of the Constitution is
meaningless unless it encompasses within its sphere individual dignity. Article
21 weaves a string of an endless yam.
14.Doctrine of severability
Ans: Doctrine of severability is also known as the doctrine of seperability. The
inconsistent part of provision may be void on the account of repugnancy or
inconsistency with any fundamental rights and only to the provision of the law in
JB SERIES
15
l_;""vv
ut' Cui~STiTUTION
16\..1
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question comes into the court for the purpose of deciding whether such law shall
in~i
be treated as void, and not the entire statute.
statut
In this doctrine, if there arises a situation where a good and the had
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provisions are merged by using the word 'and' or 'or' and where the enforcement
of good provision does not be dependent on the enforcement of bad provision, then. contei
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two provisions are severable and the good provision would be upheld and declared,
Valid. On the other hand, where a provision is in the condition that it can be 15. noc
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interpreted in hoth legal and illegal way and such provision are entangled in such a
vio1qt
way that they are inseparable, then this doctrine cannot he applied and the only
un~f
option len with that law makers are to declare such provision void as whole.
dOL:'
Evolution of the Doctrine:
.
The doctrine of severability origins its term from the law of Contracts, where this
thVl
doctrine was enumerated as 'if part of the contract is held to be illegal or otherwise
in so 1
non- enforceable, the remainder of the contract still applies'. The doctrine of
of\Jc
severability can be said to be a modified form, as the former definition in contrad
restric
is not an absolute one.
su~(
Doctrine of severability is understood in Inc!ia by analyzing Article 13of
the~(
the Indian constitution. Article 13 declares to struck down any laws which are
parro
inconsistent with Fundamental rights enumerated in Part III. Article 13 clause (I)
and (2) thus incorporated the applicability of severability in India. Both the c
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deal on how to severe any provision to the extent which is inconsistent with
Bhik~
Fundamental Rights and the severing the state laws which are in contravention to
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the fundamental rights to be treated as void. The ·doctrine of severability was
1947 :
discussed in the case R.M.D.C .v. Union of India, where three rules regarding
bU~H
severability is determined and the legislative intent regarding the doctrine
thoroughly examined.
The intention of the legislature is to determine whether the invalid
H~~
of the provision can be severed (separated) from the valid part or not. If the
Amen
and invalid part are entwined in an inseparable manner then the invalidity of
shado
portion of the statute will result in the whole invalidation of the Act and
such situation arises, the invalid portion is separated from the valid portion.
\.
Landmark Judgements
i~~
TV
D.S Nakara .v. Union Of India
It was held by the supreme court that an Act could be considered valid,
though the invalid provisions are severed and lays in the act in a separable
KihotoHollohan vs Zachillhu
It is also famously known as the defection case, where paragraph 7
tenth schedule, which was inserted by 52nd amendment Act, 1985 was
be unconstitutional as it had violated the provisions under Article 368(2).
court applied doctrine of severability by only severing the 7th paragraph of
schedule, thus rendering rest of the paragraphs valid.
LAW OF CONSTITUTION
conclusion:
If a small invalid provision in a statute renders whole of the statute
invalid, it would become a hectic task for the law- makers to elucidate entire
statute after small rectifications. Further, doctrine of severability plays a key role
to strike a balance between the Legislation action, tradition, customs and the
contemporary needs.
15.Doctrine of Eclipse.
Ans: The Doctrine of Eclipse is based on the Principle that a law which
violates Fundamental Rights is not nullity or void initio but becomes on Iy
unenforceable. It is overshadowed by the Fundamental Rights and remains
dormant, but it is not dead.
According to Article 13(1) of the Indian Constitution. all laws in force in
the territory of India immediately before the commencement of this Constitution,
in so far as they are inconsistent with the provisions of this Part. shall, to the extent
of such inconsistency, be void. Such laws are not dead they come alive if the
restrictions posed by the fundamental rights of the constitution are removed. Also,
such eclipsed laws are operative for cases that arose before the commencement of
the Constitution. Hence, the Current Fundamental Rights eclipse the Contravening
part of those laws, rendering that part of the law as dormant.
Relevant Case Law Bhika.iiNarain Vs State of Madhya Pradesh
In this case provision ofC.P. and Berar Motor vehicles Amendment Act,
. 1947 authorized the State Government to make up the entire motor transport
business in the province to the exclusion of motor transport operators. This
provision, though valid when enacted, became void on the becoming into force of
the Constitution in 1950 as they violated Article 19 (1) (G) of the Constitution.
However, 1951, clause (6) of Article 19 was amended by the constitution first
Amendment Act, as so to authorize the Government to monopolies any business.
The Supreme Court held that "the effect of the amendment was to remove the
shadow and to make the impugned Act free from all blemish or infirmity".
It became enforceable against citizens as well as non-citizens after the
constitutional impediment was removed. This law was merely Eclipsed for the
time being by the fundamental rights. As soon as the eclipse is removed the law
begins to operate from the date of such removal.
Deep Chand Vs State of Uttar Pradesh
In this case, the supreme court held that a post-constitutional law made under
article 13 (2) which contravenes a fundamental right is nullity from its Inception
and a stillborn law. It is void ab initio. The doctrine of eclipse does not apply
to post-constitutional laws and therefore, a subsequent Constitutional Amendment
cannot revive it. The Doctrine of eclipse applies only to pre-constitutional law and
not post-constitutional law.
JB
SERIES
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LAW OF CONSTITUTION
16. Constituent Assembly
Ans: A constituent assembly or constitutional
assembly is a body or assembly
of popularly elected representatives which is assembled for the purpose of drafting
or adopting a constitution or similar document. The constituent assembly is
entirely elected by popular vote.'that is, all constituent
assemblies are
constitutional conventions.
Constituent assembly is usually set up for its specific purpose, which
it carries out in a relatively short time, after which the assembly is dissolved. A
constituent assembly is a form of representative democracy.
The Constituent Assembly or India was elected to write the Constitution of India,
and served as its first Parliament as an independent nation. It was set lip as a result
of negotiations between the l~aders of the Indian independence movement and
members of the British Cabinet Mission. The constituent assembly was elected
indirectly by the members of the Provincial legislative assembly, which existed
under the British Raj. It first met on December 9, 1946, in Delhi. On August 15,
1947, India became an independent nation, and the Constituent Assembly started
functioning as India's Parliament. B. R. Ambedkar drafted the Constitution of
India in conjunction with the requisite deliberations and debates in the Constituent
Assembly. The Assembly approved the Constitution on November 26, 1949
(celebrated as Constitution Day), and it took effect on January 26, 1950 - a day
now commemorated as Republic Day in India. Once the Constitution took effect,
the Constituent Assembly became the Provisional Parliament of India.
17. Right to Education
( RTE )
Ans: Right to Education Act (RTE), is an Act of the Parliament of India enacted
on 4th August 2009, which describes the modalities of the importance of free and
compulsory education for children between 6 and 14 in India under Article 21a of
the Indian Constitution.
The RTE Act provides the following for the rights of children
y To free and compulsory education till completion of elementary education ina
neighborhood school.
y It clarifies that 'compulsory education' means obligation of the appropriate
government to provide free elementary education and ensure compulsory
admission, attendance and completion of elementary education to every
in the six to fourteen age group.
y 'Free' means that no child shall be liable to pay any kind of fee or charges
expenses which may prevent him or her from pursuing and completing
elementary education.
y It makes provisions for a non-admitted child to be admitted to an age
appropriate class.
y It specifies the duties and responsibilities of appropriate Governments,
authority and parents in providing free and compulsory education, and
of financial and other responsibilities between the Central and State
Governments.
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". It lays down the norms and standards relating inter alia to pupil teacher ratios
(PTRs), buildings and infrastructure, school-working days, teacher-working
hours.
". It also provides for prohibition of deployment of teachers for non-educational
work.
". It provides for appointment of appropriately trained teachers.
". It also prohibits all unrecOgnized schools from practice, and makes provisions
for no donation or capitation fees.
". No interview of the child or parent for admission.
". It also provides that no child shall be held back, expelled, or required to pass a
board examination unti I the completion of elementary education.
~ There is also a provision for special training of school drop-outs to bring them
up to par with students of the same age
~ It prohibits
• Physical punishl11ent and mental harassment;
• Screening procedures for admission of children;
• Capitation fcc:
• Private tuition by teachers and
• Running of schools without recognition.
~ It provides for develoPl11ent of curriculum in consonance with the values
enshrined in the Constitution. and which would ensure the all-round development
of the child, building on the child's knowledge, potentiality and talent and making
the child free of fear, trauma and anxiety through a system of child friendly and
child centered learning.
A critical development in 2011 has been the decision taken in principle
to extend the right to education till Class X (age 16) and into the preschool age
range. The CABE committee is in the process of looking into the implications of
making these changes.
18. Article 51A: Fundamental duties
Ans: It shall be the duty of eVery citizen of India 1. To abide by the Constitution and respect its ideals and institutions, the
National Flag and the National Anthem
2. To cherish and follow the noble ideals which inspired our national struggle
for freedom;
3. To uphold and protect the sovereignty, unity and integrity of India;
4. To defend the country and render national service when called upon to do
so;
5. To promote harmony and the spirit of common brotherhood amongst all
the people of India transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to the dignity of
women;
6. To value and preserve the rich heritage of our composite culture;
JB SERIES
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19
LAW OF CONSTITUTION
To protect and improve the natural environment including forests, lakes,
rivers and wild life. and to have compassion for living creatures;
8. To develop the scientific temper, humanism and the spirit of inquiry and
reform
9. To safeguard public property and to abjure violence;
10. To strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour and
achievement.
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11. To provide opportunities
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for education by the parent the guardian. to his
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What are the salient features of our Constitution?
Ans: The Constitution of India is a very dynamic creation of our lawmakers. The
Constitution of India as we all know is a supreme law of the country and every
citizen of our country has to abide by the constitution.
Salient Features:
1. The Lengthiest Constitution of the World: The Indian Constitution is one of
the lengthiest constitutions in the world and it. is also very detailed. There are
12 schedules and 395 articles in our Constitution .. The parent document for
drafting the Indian Constitution was the Government of India Act 1935, and
that document itself was very lengthy.
2. Written Constitution: The Indian Constitution is the world's longest written
constitution with 12 schedules and 395 articles. Not only this but since 1951
about 90 articles and more than 100 amendments have been made.
3. A unique blend of rigidity and flexibility: The Indian Constitution is neither
rigid nor flexible; this is also one of the reasons for its length. The Indian
Constitution is not very difficult to amend, as the Constitution of The U.S.A. It
has gone through 103 amendments so far .Thus the Indian Constitution IS a
unique blend of rigidity and flexibility.
4. Parliamentary form of Government: The Bicameral Legislature system is
followed in our country i.e., two houses, LokSabha and RajyaSabha. The
Unicameral legislature system is followed in countries like Norway.
The key characteristics of the parliamentary form of government are:
a. Collective responsibility to the legislature of the Council of Ministers
Rule of the majority party
b. Prime Minister's or chief minister's leadership in the state
c. Lower house dissolution (LokSabha and state assemblies)
d. Government form of the Cabinet.
5. Taken from various sources :The Indian Constitution was framed from
multiple sources including the 1935 Government of India Act and Other
Countries Constitutions likethe Constitutions of Canada, Australia, Germany,
the U.S.S.R., and France and adopted various provisions.
6.Federal System with Unitary Features: The Indian Constitution includes all
the federal characteristics of governance such as dual government system
(center and state), and unitary features such as a strong centre, all India
services common to the center and the states.
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LAW OF CONSTITUTION
7. Independent Judiciary :It is the duty of all levels of courts in India to enforce
both central and state laws. Not only is the judiciary system well fully
integrated in India, but because of the following provisions it is also
independent.
a. Appointment of judges of Supreme Court and High Courts by collegium
system.
b. Removal of judges in Pari iarnent through an impeachment procedure that is
very difficult to pass.
c. Supreme Court judges salaries. pensions. and allowances are charged to
India's .Consolidated Fund.
d.Power to punish for self- disregard.
e. Ban on judges practice after retirement. .. etc
8. Directive Principles of State Policy: In Part IV of the Constitution. the
Directive Principles of State Policies (DPSPs) aims to make India a welfare
state. They are not enforceable for their violation by the courts. They are only
fundamental guidelines to the country's governance.
9. Fundamental
Rights: Part III of the Indian Constitution deals w
fundamental rights.Article 14 of the Indian Constitution guarantees the right
equality. It is the duty of the state not to deny any person equality before the
eyes of the law and to provide them equal protection of laws within
territory of India.
10. Adult suffrage: Any adult who is 18 years of age eligible to vote should
be discriminated on any basis like gender, caste and religion. The accepted
age for voting is 18 years of age. There are also certain disqualifications
provided like:
• Non-residence;
• Unsound mind;
• Criminals who are indulged in the corrupt and illegal practice.
11. Single Citizenship: There is no separate citizenship for the States and
Centre like in various federal countries like the U.S.A. There is si
citizenship provided to our citizens.
12. Judicial Review: The court that is authorized with the power of .
review can invalidate any act that is violative of the various basic
the Constitution. Article 32 and Article 136 and Article 226 and Article
the Indian Constitution are related to the Judicial review in the
Court and in the High Court respectively.
13. Secularism: Secularism promotes the development and unity of
religions. The term "Secular" was added by the 42nd amendment
Preamble. In India all citizens are free to follow, profess, propagate
religion they like.
14. Sovereignty: The term Sovereignty was incorporated in the
provide supreme power to the Government. Sovereignty is an essential
of every State.
15. Socialism: The term socialism is used to lessen the inequalities in i
status among the people and to provide equality of opportunity and faci
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16. Democracy: In simple words Democracy means ruling of the government by
the people, For the people, Of the people". The main reason for incorporating
democracy is to provide freedom to the people to choose their own
representatives and to save them from the tyrant leaders.
Conclusion: Because of the above features our Indian Constitution got good
recognition among the many nations.
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20.What is the importance of Directive Principles of State Policy.
Ans: Part IV of the Indian Constitution deals with the Directive Principles of State
Policy. It is the duty of every State to apply these principles while making any new
legislation. The Directive Principles of Slate Policy are basically instructions to the
legislature and executive that has to be followed while framing new legislation by
the State. There are various directive principles like,
• The State shall promote the welfare of the people by securing and protecting as
effectively as it maya social order in which justice, social, economic and
political, shall inform all the institutions of the national life.
• The state should ensure that the citizens should have adequate means of
livelihood.
• The state should make sure that the ownership and control of material
resources are equally distributed among citizens.
• The state should provide equal pay for equal work irrespective of gender.
• The state must also take care of the operation of the economic system and
should make sure it does not lead to concentration of wealth.
• The State shall provide free legal aid shall secure that the operation of the legal
system in order to promote justice.
• The State shall take steps to organize village panchayats and should encourage
self-governance in villages.
The
State shall make provision for providing just and humane conditions of
•
work and for maternity relief.
• Tribes, and can save them from social injustice and all kinds of exploitation.
• The State shall regard the raising of the level of nutrition and the standard of
living of its people in order to bring improvement in public health.
• The State shall bring out new scientific developments in the field of agriculture
and animal husbandry.
• The State shall develop the educational and economic interests of the weaker
sections of the people like the Scheduled Castes and the Scheduled.
1. Enforcement of fundamental duties.
Ans: The Supreme Court declined a plea for the enforcement of the fundamental
duties as enshrined in the constitution and the implementation of two separate
reports by former chief justices of the apex court on the issue. Also Read -Why
Kejriwal's Plan to Allow Hi-tech Industry is Good for Delhi
The fundamental duties (FDs) provided under Article 51-A in the Indian
Constitution cannot come into force automatically neither can these duties be
enforced by judicial process. The Constitution, like directive principles, leaves to
JB SERIES
24 '-'
LAW OF CONSTITUTION
the good will of citizen to abide these provisions. According to the constitutional
expert D.D.Basu, the constitution does not make any provision to enforce these
duties automatically or any sanction to prevent the violation of these duties of the
citizen.
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However, it is expected that if a law is enacted by the legislature to enforce
als~\
these provisions, it shall not be declared unconstitutional on the ground of its
inconsistency with the provisions of Article 14 and that of 19. According to him. consut
stn~l
these provisions would act as warning to all those who does indulge in not paying
due regard to the constitution and destroy ing public property. The Supreme COUrt
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may issue such warning to citizen to take these provisions seriously. Moreover,
basic\...-f
there is no legal sanction against their violation.
ADS:
The legislature may also enact laws to enforce these duties. However, the
it
parliament is free to enforce them by suitable legislation.
Some of the
of the
Fundamental Duties are moral duties while others are civic duties. For example,
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cherishing the noble ideals of freedom struggle is a moral duty and respecting the
vanor
constitution, National Flag & National Anthem is a civic duty, religions and
var~
practices. In other words they essentially contain just a codification of tasks
integral to the Indian way of life. Therefore. awareness of our citizenship duties is
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22. Write about Judicial Review.
ADs: The concept of judicial review is an essential feature of the Constitution
which helps the constitution to work properly. The judiciary is considered to be the
guardian of the constitution, thus it is the duty of the judiciary to check the actions
that are violative of various articles in the Constitution. The actions of various
organs of the government like executive and legislature can be questioned by the
judiciary using the judicial review. The judicial review is an important check and
balances in the separation of powers. The court that is authorized with the power
of judicial review can invalidate any act that is violative of the various basic
features of the Constitution. Article 32 and Article 136 of the Indian Constitution
are the articles related to the Judicial review in the Supreme Court. Article
226 and Article 227 are related to the judicial review in the High Court. The scope
of judicial review is limited to three grounds:
• Unreasonableness and irrationality;
• Illegality;
• Procedural impropriety.
It is also a settled principle that there should be no judicial review in policy
matters, that the policy decision taken by the State or its authorities is beyond the
scope of judicial review unless the decision is found to be arbitrary, unreasonable
or it is in contravention of the statutory provisions or if it violates the rights of
individuals guaranteed under the statute.
The policy decision cannot be in contravention of the statutory provisions because
if the Legislature in its knowledge provides for a particular right, the authority
making a decision regarding the policy cannot nullify the same. The
.
principle was also stated in the case of Monarch Infrastructure
(P) Ltd.
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Landmark Judgements on Judicial Review
In the case of KesavanandaBharati
vs. the State of Kerala, even though the
court after agreeing that the Parliament is not restricted to amend the Constitution,
also put a caveat of the doctrine of the basic structure. The Court observed that the
constitutional amendments have to be made only alter considering the basic
structure or the Constitution.
Discuss the significance of the Preamble to the Constitution of India. Is it
basicstructure of the constitution?
Ans: The Preamble is described as an introduction or pre bee of a book. Basically,
it is a brief introductory statement that sets out the guiding purpose and principles
of the document. The Preamble of our Constitution provides India to be a
Sovereign, Socialist, Secular, Democratic and Republic Country. There are also
various other terms in the Preamble which ensure equality and protect people. The
various other terms are Justice, Liberty, Equality. and lraternity.
Sovereign: Sovereignty denotes supreme and ultimate power. It may be real or
normal, legal or political, individual or pluralistic. In monarchies, sovereignty was
vested in the person of monarchs. But in republican form of governments, which
mostly prevail in the contemporary world, sovereignty is shifted to the elected
representatives of the people .
Socialist: The term socialist used here refers to democratic socialism, It means that
(since wealth is generated socially) wealth should be shared equally by society and
should not be concentrated in the hands of few, and that the government should
regulate the ownership of land and industry to reduce socio-economic inequalities .
Secular: In India being a secularstate, there is no state religion. All the citizens of
India are allowed to profess, practice and propagate the religion whatever religion
they wish to follow.
Democratic: In democratic government the people of India elect their
governments by a system of universal adult franchise. Every citizen of India 18
years of age or older and not otherwise debarred by law is entitled to vote.
Democracy is popularly known as "By the people, for the people, of the people".
Republic: A democratic republic is an entity in which the head of state is elected,
directly or indirectly, for a fixed tenure and not a hereditary monarch .. Thus, India
has a President who is elected and has a fixed term of office.
Justice: Justice stands for rule of law, absence of arbitrariness and a system of
equal rights, freedom and opportunities for all people in a society. Liberty I
Freedom: That is Indian citizens are given freedom to think, express, etc However,
liberty does not mean freedom to do anything, and it must be exercised within the
constitutional limits.
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26
LAW OF CONS IIIU IIUN
Fraternity; This refers to a feeling of brotherhood and a sense of belonging to
nation.The Preamble declares that fraternity has to assure two things-the
digni~
ofthe individual and the unity and integrity of the nation.
Amendability:
The Preamble can be subjected to Constitutional Amendments
exercised under article 368, however, the basic structure cannot be altered.
Therefore. it is considered as the heart and soul of the Constitution.
The objectives in the preamble are just a part of basic structure of the
constitution and nothing more than that. So preamble cannot be amended so as to
destroy. the objectives.
.
Case Laws:
• Kcshavananda Bharaghi Vs State of Kerala.
• Indira Nehru Gandhi Vs Raja Narayan.
• Beru Bari Union Case
24. Describe the Government of India Act
Ans: The Government of India Act 1935
viz. Report of the Simon Commission,
Conference. the White Paper of 1933
committees.
1935.
derived material from four key
discussions at the Third Round
and the reports of the Joint
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Features of the Act:
Provincial autonomy: The Act gave more autonomy to the by British Parli
in August 1935. With 321 sections and 10 schedules, this was the longest act
passed by British Parliament so far and was later split into two parts viz.
Government of India Act 1935 provinces.
1. Diarchy was abolished at the provincial levels.
2. The Governor was the head of the executive.
3. There was a Council of Ministers to advise him. The ministers were
responsible to the provincial legislatures who controlled them. The legis
could also remove the ministers.
4. However, the governors still retained special reserve powers.
5. The British authorities could still suspend a provincial government.
Diarchy at the centre
1. The subjects under the Federal List were divided into two:
Transferred.
2. The reserved subjects were controlled by the Governor
administered them with the help of three counselors appointed by
were not responsible to the legislature. These subjects included
ecclesiastical affairs (church-related), external affairs, press, police,
justice, power resources and tribal affairs.
3. The transferred subjects were administered by the Governor-General
Council of Ministers (not more than 10). The Council had to act in
with the legislature. The subjects in this list included local government,
education, health, etc.
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However, the Governor-General "had 'special powers' to interfere In the
transferred subjects also.
Bicameral legislature
1. A bicameral federal legislature would be established.
2. The two houses were the Federal Assembly (lower house) and the Council of
States (upper house).
3. The federal assembly had a term of five years.
4. Both houses had representatives from the princely states also. The
representatives of the princely states were to be nominated by the rulers and
not elected. The representatives of British India were to be elected. Some
were to be nominated by the Governor-General.
5. There were to he separate electorates for the minority communities, women
and the depressed classes.
6. Bicameral legislatures were introduced in some provinces also like Bengal,
Madras, Bombay, Bihar, Assam and the United Provinces.
Federal court
1. A federal court was established at Delhi for the resolution of disputes between
provinces and also between the centre and the provinces.
2. It was to have 1 Chief Justice and not more than 6 judges.
Indian Council
1. The Indian Council was abolished.
2. The Secretary of State for India would instead have a team of advisors.
Franchise
1. This Act introduced direct elections in India for the first time.
Reorganization
1. Sindh was carved out of Bombay Presidency.
2. Bihar and Orissa were split.
3. Burma was severed off from India.
4. Aden was also separated from India and made into a Crown colony.
Other points
1. The British Parliament retained its supremacy over the Indian legislatures both
provincial and federal.
2. A Federal Railway Authority was set up to control Indian railways.
3. The act provided for the establishment of Reserve Bank of India.
4. The Act also provided for the establishment of federal, provincial and joint
Public Service Commissions.
5. The Act was a milestone in the development of a responsible constitutional
government in India.
6. The Government of India Act 1935 was replaced by the Constitution of India
after independence.
7. The Indian leaders were not enthusiastic about the Act since despite granting
provincial autonomy the governors and the viceroy had considerable 'special
POWers'.
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LAW 01- CONSTITUTION
8. Separate communal electorates were a measure through which the British
wanted to ensure the Congress Party could never rule on its own. It was also a Way
to keep the people divided
Conclusion: This act ended the system of dyarchy introduced by GOI Act 19H
and provided for establishment of aFederation of India to be made up of
provinces of British India and some or all of the Princely states. However, the
federation never came into being as the required number of princely states did not
join it.
25. Write in detail about the government of India Act 19]9.
Ans: The Government of India Act 1919 was an act of the British Parliament that
sought to increase the participation of Indians in the administration of their
country. The act was based on the recommendations of a report by Edwin
Montagu, the then Secretary of State for India, and Lord Chelmsford, India
Viceroy between 1916 and 1921. Hence the constitutional reforms set forth by this
act are known as Montagu-Chelmsford reforms or Montford reforms.
Principle Features of Government of India Act 1919
• Executive:
• Dyarchy was introduced, i.e., there were two classes of administrators _
Executive councilors and ministers.
• The Governor was the executive head of the province.
• The subjects were divided into two lists - reserved and transferred.
• The governor was in charge of the reserved list along with his ex
councilors. The subjects under this list were law and order, irrigation, finance,
land revenue, etc.
• The ministers were in charge of subjects under the transferred list. The
included were education, local government, health, excise, industry, public
works, religious endowments, etc.
• The ministers were responsible to the people who elected them through
legislature.
• These ministers were nominated from among the elected members of
legislative council.
• The executive councilors were not responsible to the legislature, unlike
ministers.
• The Secretary of State and the Governor-General could interfere in
under the reserved list but this interference was restricted for the
list.
Legislature:
• The size of the provincial legislative assemblies was increased. Now
70% of the members were elected.
• There were communal and class electorates.
• Some women could also vote.
• The governor's assent was required to pass any bill. He also had veto
and could issue ordinances also.
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Government of India Act, 1919 - Other Salient Features
This act provided for the first time, the establishment of a public service
commission in India.
• The act also provided that after 10 years, a statutory commission would be set
up to study the working of the government. This resulted in the Simon
Commission of 1927.
• It also created an office of the High Commissioner for India in London.
Merits of the Government of India Act 1919
• Dyarchy introduced the concept of responsible government.
• It introduced the concept of federal structure with a unitary bias.
• There was the increased participation of Indians in the administration. They
held some portfolios like labour, health, etc.
• For the first time, elections were known to the people and it created political
consciousness among the people.
• Some Indian women also had the right to vote for the first time.
Limitations of the Government of India Act 1919
• This act extended consolidated and communal representation.
• The franchise was very limited. It did not extend to the common man.
• The governor-general and the governors had a lot of power to undermine the
legislatures at the centre and the provinces respectively.
• Allocation of the seats for the central legislature was not based on population
but the 'importance' of the province in the eyes of the British.
• The Rowlatt Acts were passed in 1919 which severely restricted press and
movement. Despite the unanimous opposition of Indian members of the
legislative council, those bills were passed. Several Indian members resigned
in protest.
What is the importance of Article 14(Right to equality) in our Constitution?
Ans: The Right to Equality is one of the Fundamental Rights enshrined in the
Constitution of India. It is very important to understand what this right entails and
includes.
Equality before the law (Article 14)
• This Article states that all citizens will be treated equally before the law.
• The law of the country protects everybody equally.
• Under the same circumstances, the law will treat people in the same manner.
Prohibition of discrimination
(Article 15)
• No citizen shall be discriminated
on grounds only of race, religion, caste,
place of birth, sex or any of them, be subject to any restriction or condition
with respect to:
• Access to public places
• Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant
for the general public.
JB SERIES
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LAW OF CON~III U liON
Equality of opportunity in matters of public employment
(Article 16)
• No citizen shall be discriminated against in matters of public employment Or
appointment on the grounds of race, religion, caste, sex, place of birth, descent
or residence.
• Exceptions to this can be made for providing special provisions for the
backward classes.
Abolition of untouchability (Article 17)
Article 17 prohibits the practice of untouchability.
• Untouchability is abolished in all forms.
• Any disability arising out of untouchability is made an offence.
Abolition of titles (Article 18)
Article 18 abolishes titles.
• The State shall not confer any titles except those which are academic or
military titles.
• The article also prohibits citizens of India from accepting any titles from a
foreign State.
27. In how many modes a person can acquire a Citizenship?
Ans: A Citizenship is a legal status acquired by a person. Citizenship is
by birth within the territorial limits of the State in which the person
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How to get Citizenship
Each country in the world has their specific regulations and policies about
citizenship. It can be issued based on several criteria.
• Citizenship by descent: Jussanguinis is applied when the parents of the
person are the citizens of the state. Their the children can get the state's
citizenship as well. Even though the baby is born in another country, it .
earn the citizenship of their parents.
• Jus Soli: Jus soli is applied when a person is born within a country. This
person will become the citizen ofthe state ifhe or she is born here.
• Jure matrimonii: Jure matrimonii is granted if a person marries to a citizen.
is considered as the fast track naturalization in many countries.
• Naturalization: The people who get the political asylum, live for a
period of time in the country, or enter the state legally may be
citizenship through naturalization.
• Facts about Citizenship and conditions : There are several conditions
the people should consider in the process of Naturalization. The person
have good conduct, master the language; realize the lifestyle of the
country, and many more.
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What is Double Jeopardy? Write with decided Case Law .
ADs: The U.S. Constitution's Fifth Amendment contains a Double Jeopardy
Clause. In general, in countries observing the rule of double jeopardy, a person
cannot be tried twice for the same crime based on the same conduct.
Example: If a person robs a bank, that individual cannot be tried twice for
robbery
for the
same
offence.Thus
one
cannot
be
tried
for
both murder andmanslaughter for the same killing but can be tried for both murder
androbbery if the murder arose out of the robbery .
The defence of double jeopardy also prevents the state from retrying a person for
the same crime after he has been acquitted .
Case Law: MaqboolHussain }IS. State of Bombay In this case, the appellant. an
Indian citizen, was arrested in the airport for the illegal possession of gold under
the provisions of the Sea Customs Act, 1878. Thereupon, an action was taken
under section 167(8) of the Act, and the gold was confiscated. Sometimes
afterwards, he was charge sheeted before the court of the Chief Presidency
Magistrate under section 8 of the Foreign Exchange Regulation Act. 1947. At trial.
the appellant raised the plea of autrefois convict, since it violates his fundamental
right guaranteed under article 20(2) of the constitution. He sought the
constitutional protection mainly on the ground that he had already been prosecuted
and punished inasmuch as his gold has been confiscated by the customs
authorities. By rejecting his plea, the court held that the proceedings of the Sea
Customs Authorities cannot be considered as a judicial proceedings because it is
not a court or judicial tribunal and the judgment of confiscation or the increased
rate of duty or penalty under the provisions of the Sea Customs Act does not
constitute a judgment or order of a court or judicial tribunal necessary for the
purpose of supporting a plea of double jeopardy. The court also held that the
proceedings conducted before the sea customs authorities were, therefore, not
'prosecution' and the confiscation of gold is not punishment inflicted by a 'court'
or 'judicial tribunal'. The appellant, therefore, cannot be said to have been
prosecuted and punished for the same offence with which he was charged before
the Chief Presidency Magistrate Court.
What are the different types of Constitutions?
ADs: A constitution has been defined as a body of rules established to regulate the
system of government within a state.The following are the types of constitutions.
Democratic constitution: A democratic constitution is a constitution that allows
the people to choose their leaders by way of election, or to reject such leaders and
their programmes, when they are no longer serving the interests of the people. You
might want to see the problems of democracy here.
Written and unwritten constitution: An unwritten constitution is a type of
constitution that is not contained in one single document. The British constitution is
the best example of an unwritten constitution. It is not in one document, but can be
found in various sources, such as statutes, conventions and judicial decisions.
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LA'./: cr CmJSTITUTlmJ
Codified, Uncodified,
constitutions: That difference between a codified and
uncodified constitution is also reflected on the fact that what is written in the
constitutional document becomes a superior law that can only be judged by a
Constitutional Court.
Flexible and Inflexible Constitutions: The "flexible" Constitution, such as the
British constitution that can be amended with ease.
The "inflexible" one, such as the US constitution, which is very difficult to make
constitutional changes. In constitutions of the inflexible type, it is the constitution
is Supreme not the legislature that is supreme.
Monarchical and Republican Constitutions: In the Monarchial Constitutions,
the monarch is the head of state. although in Britains case, the powers of the
monarch are limited, and the Queen reigns in accordance with the constitution.
The political power lies with the Prime Minister! Parliament. Accordingly,
constitutional monarchy is a limited monarchy.
A republican constitution on the other hand, provides for the election of
President who is the head of state and the head of the government. A republi
constitution places the power in the hands of the President.
Presidential and Parliamentary Constitutions: In the case of the Pres'
type of Constitutions, the President will be the head of state and the head of
executive branch of the government but not the head of the legislature and
accountable to it. Furthermore, the President is not a member of the House
Representatives or the Senate.
In a Parliamentary constitution, the head of the executive branch of
government is the Prime Minister, who will also be the head of the executive,
also a member of the legislative branch of the government and accountable to it.
Federal and Unitary Constitutions: In a federal system there is
governmentand also
another government at state level, with
competence under the constitutional arrangements. Examples: US,
Canada and South Africa.
On the other hand, Britain has a unitary constitution and it is centrally
Political and Legal Constitutions: In a political constitution is that an
majority should make the decisions affecting the voters, rather than leaving
decisions to the courts. A political constitution is flexible and changeable.
In a legal constitution such as the American one, empowers the
particular the Constitutional Court to establish the limits of government power
Conclusion: All these different constitutions are based on different
contexts that have generated different preoccupations, and therefore
priorities. The one thing they have in common is that all constitutions are
30. Examine the role of Drafting Committee in framing of the Indian
Constitution.
Ans: On 29th August 1947, the Constituent Assembly through a
appointed a Drafting Committee to scrutinize the draft of the text
Constitution of India prepared by Constitutional Adviser, giving effect
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decisions already taken in the Assembly and including all matters which have to
be provided in such a Constitution, and to submit to the Assembly for
consideration the text of the draft constitution as revised by the committee ... '
The Drafting Committee had seven members: AlladiKrishnaswamiAyyar, N.
Gopalaswami; B.R. Ambedkar, K.M Munshi, Mohammad Saadulla, B.L. Mitter
and D.P. Khaitan. At its first meeting on 30th August 1947, the Drafting
Committee elected B.R Ambedkar as its Chairman.
Towards the end of October 1947, the Drafting Committee began to scrutinize the
Draft Constitution prepared by the B.N Rau, the Constitutional Advisor. It made
various changes and submitted the Draft Constitution to the President of the
Constituent Assembly on 21 February 1948.
The Drafting Committee and its members were very influential in Indian
constitution-making during the Committee stages and the deliberations of the
Constituent Assembly. Majority of the dehates in Constituent Assembly revolved
around the Draft Constitution( s) prepared by the Drafting Committee. Out of 166
sittings of the Constituent Assembly. 114 were spent debating the Draft
Constitution(s ).
. Why the Constituent Assembly is formed?
Ans: The idea ofa constituent assembly was first proposed in 1934 by M.N. Roy.
However, the actual constituent assembly was formed in 1946 on the basis of
the cabinet mission plan.
Composition of Constituent Assembly
Initially, the number of members was 389. After partition, some of the
members went to Pakistan and the number came down to 299. Out of this, 229
were from the British provinces and 70 were nominated from the princely states.
Dr. SachchidanandaSinha was the first temporary chairman of the
Constituent Assembly. Later, Dr. Rajendra Prasad was elected as the President and
its Vice President was HarendraCoomarMookerjee. BN Rau was the constitutional
advisor.
A constituent assembly is usually set up for its specific purpose, which it
carries out in a relatively short time, after which the assembly is dissolved. A
constituent assembly is a form of representative democracy.
On 9 December 1946, the Constituent Assembly sat for the first time. In
the span of 2 years and 11 months, it completed its task of framing the Indian
Constitution. During this period the Constituent Assembly had 11 sessions and sat
for a total of 166 days. On 26 November the Constituent Assembly adopted the
Constitution of India which came into force on 26 January 1950.
Criticism of the Constituent Assembly
It was not a representative body since the members were not directly
elected by adult franchise. However, the leaders did enjoy popular support from
the people. Direct elections by the universal adult franchise at that time when the
country was on the brink of partition and amidst communal riots would have been
impractical.
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LAW OF CONSTITUTION
•
•
•
•
•
It is said that the makers took a long time in framing the constitution.
However, keeping in mind the complexity and the peculiarities of the diverse
and large Indian nation, this can be understood.
The constituent assembly was not a sovereign body since it was created by the
British. However, it worked as a fully independent and sovereign body.
The language of the constitution was criticised for being literary and
complicated.
The assembly was dominated by the Congress Party. But the party dominated
the provincial assemblies and this was natural. Moreover, it was a
heterogeneous party with members from almost all sections of Indian society.
It was alleged that the assembly .had Hindu dominance. This was again
because of proportional representation from communities.
32. What was the basic idea of Socialism? And how did socialism affect the
economy?
Ans: The word socialist was added to the Preamble of the Indian Constitution by
the 42nd amendment act of 1976. during the Emergency. It implies social and
economic equality. The system of socialism promotes equality among people and
ensures the welfare of people. The term socialism is used to lessen the inequalities
in income and status among the people and to provide equality of opportunity and
facilities".
The concept of Socialism expels capitalism which is considered a threat to the
economy. An economic theory or system in which the means of production,
distribution, and exchange are owned by the community collectively, usually
through the state. It is characterized by production for use rather than profit, by
equality of individual wealth, by the absence of competitive economic activity.
In a purely socialist system, all legal production and distribution
decisions are made by the government, and individuals rely on the state
everything from food to healthcare. The government determines the output
pricing levels of these goods and services.
strategies of socialization
Two main strategies of socialization.
• The first seeks to socialize the economy byNationalizing major industries,
financial institutions ( Banks) etc
• The second seeks the same end by radically decentralizing and
econorruc power.
Measures taken by the Indian Government to remove economic inequ
among the people:
1. Giving reservations for BC , SC and ST people
2. Distributing government lands for the poor people
3. Allotting houses for the white ration card holders
4. Introducing Land Ceiling Act and taking away excess land from the I
and distributing it among the poor etc.
Socialists want citizens to be highly involved in democratic processes; and
want citizens to have rough equal opportunities to influence these
sses.
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What are the features of Federal Constitution?
Ans. The federal feature of Indian constitution states that there must be
distribution of powers between central and state government. Article 246 of
constitution gives power to both union and state government to make laws in
the respective matters provided in the union list, state list and concurrent list.
• Division of powers: Division of powers between Central and State
governments is an essential element of the federal Constitution. This division
is done by the Constitution itself. Each government is independent in its
jurisdiction and does not exercise the rights and powers of other.
Thus, the powers are divided among various collaborativ,e entities in
federalism. The Constitution keeps the control on the use of their powers.
• The Supremacy of the Constitution: The Constitution is the source of all
powers of Executive, Legislature and JUdiciary. The federal State derives its
existence from the Constitution. In the federal system, the Constitution is
considered the supreme law of the country. All institutions functions under the
control ofthe Constitution.
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According to the Prof. K.C. Where supremacy of the Constitution for the
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Written Constitution: The federal Constitution must necessarily be
documented. The establishment of a federal State is laid down by complex
conditions. These conditions must be in a written form, otherwise it would be
impossible to keep the supremacy of the Constitution intact. In case of written
Constitution the Central and State governments will get clear understanding of
their rights.
•
Rigid Constitution: Generally the written Constitution is rigid. However, this
does not mean that the Constitution cannot be amended. The amending
procedure is quite complicated and difficult. The power to amend the
Constitution should not remain exclusively with either Central government or
State Government. To maintain supremacy of the Constitution, it is necessary
to keep the process of amendment difficult.
• The authority of Judiciary: There is a division of powers between Central
and State governments in the Federal form of Constitution. The division of
powers between the two is done by a written Constitution. Therefore, it is
possible that different governments can interpret provisions of the Constitution
in their favour. In such a situation, it is necessary to have an institution which
can properly interpret the Constitution in fair and free manner. As regards
provisions of the Constitution, judiciary is empowered to give interpret the
Constitution. The interpretation of the Constitution by the judiciary is binding
on all the authorities.
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LAW OF CONSrrTUTION
~--------------------------------------~~~----------------
34. Write about Secularislll. Explain the scope and nature of the right to freedoll)
of religion in India with the help of decided cases.
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Ans. The constitution of India recognizes the fact, how important religion is in the
life of people of India and hence, provides for the right to freedom of religion under
Articles 25 to Article 28.
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The Constitution of India envisages a secular model and provides that every person
has the right and freedom to choose and practice his or her religion. Secularism
means developing, understanding and respecting different religions.
In 1948, during the constituent assembly debate, a demand was made by
the KT Shah to include the word 'Secular' in the Preamble to the Constitution. The
members of the assembly though agreed to the secular nature of the constitution
but it was not incorporated in the Preamble. Later. in 1976 the Indira Gandhi
government enacted the 12nd Amendment Act and the word' Secular' was added
to the Preamble. The 42nd Amendment Act also known as the 'Mini Constitution',
is the most comprehensive amendment to the Constitution.
Constitutional PrOVisions relating to Right of Religion
Prov
•
Article 25: Freedom of conscience and free profession, practice and propagation
of religion.
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Article 26: Freedom to manage religious affairs.
•
Article 27: Freedom as to payment
religion.
.
•
Article 28: Freedom as to attendance at religious instruction or religious worship
in certain educational institutions.
Freedom of Religion in India (Art. 25)
of taxes for promotion
of any particular
Article 25 of the Constitution guarantees freedom of religion to all persons in
India. It provides that all persons in India, subject to public order, morality,
health, and other provisions:
•
Are equally entitled to freedom of conscience, and
•
Have the right to freely profess, practice and propagate religion.
•
In the much-disputed dJ:.odhya case, it was held by the apex court that the
constitution postulates equality of all faiths. Through Tolerance and mutual co.
existence, the secular Commitment of our country and its people can be
nourished.
Case Law:
•
S. R. Bommai v. Union of India,
The 9 judge bench, in this case, ruled that Secularism is the basic feature of
Constitution of India. It also observed that religion and politics cannot be mi ••
together. If the State fOllows unsecular policies or courses of action then it
contrary to the constitutional mandate. In a State, all are equal and should
treated equally. Religion has no place in the matters of State. Freedom
religion as a fundamental right is guaranteed to all persons in India but from
point of view of the State, religion, faith, and belief are immaterial.
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35.Write about Diarchy. What are the features of Diarchy?
Ans: The Government of India Act 1919 was an Act of the Parliament of the
United Kingdom. It was passed to expand participation of Indians in the
government of India. The Act embodied the reforms recommended in the report of
the Secretary of State for India, Edwin Montagu. and theViceroy, Lord
Chelmsford.
Act of 1909 provided a dual form ofgovcrnment (a "diarchy") for the major
provinces.Diarchy means a dual set of governments: one is accountable, the other
is not accountable. Subjects of the provincial government were divided into two
groups.
• One group was reserved, and
• The other group was transferred.
The reserved subjects were controlled by the British Governor of the province;
the transferred subjects were given to the Indian ministers of the province.
The "transferred list". were given to Government oflllinisters answerable to the
Provincial Council. The 'transferred list' included agriculture. supervision of local
government, health, and education.
At the same time, all other areas of government (the 'reserved list') remained
under the control of the Viceroy. The 'reserved list' included defence (the military),
foreign affairs, and communications.Diarchy means a dual set of governments; one
is accountable, the other is not accountable. Subjects of the provincial government
were divided into two groups. One group was reserved, and the other group was
transferred. The reserved subjects were controlled by the British Governor of the
province; the transferred subjects were given to the Indian ministers of the
province.
What is privilege against self-incrimination?
ADS: The Fifth Amendment of the Constitution establishes the privilege against
self- incrimination. This prevents the government from forcing a person to testify
against himself. Although the founders were particularly concerned about persons
being tortured into incriminating themselves, the courts have extended the
privilege to any forced testimony.
The result of the privilege against self- incrimination is that the state must
prove its case without the help of the defendant. If the defendant stands silent, he
wins unless the state can produce sufficient evidence of his guilt. At trial, the
defendant can refuse to take the stand and testify, and the prosecutor may not
Commenton the defendant's silence; that is, no remarks about why the defendant
will not take the stand and explain what really happened.
The privilege against self-incrimination also applies to the investigation of
a case. A defendant can refuse to talk to the police, but cannot refuse to appear
before the grand jury. The defendant can refuse to answer questions that he
believes wiII incriminate him, which is called "taking the Fifth." The privilege
applies to any crime, state or federal, so the defendant can take the Fifth when he
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is being investigated by the state because he is concerned about implicating
himself for a federal crime.
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refuse. In some circumstances the prosecution can get around the defendant's
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crimes he might mention in testifying. Once immunized against the possibility of
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prosecution. the witness can no longer refuse to testifY by invoking the privilege
against self- incrimination.
The privilege against self-incrimination is limited to testimony.
Defendants can he forced to give hair samples, blood samples. and other bodily 38.\.;1
Ans:
fluids. They can be forced to produce writing samples, and in some cases to give
tlVe
other information such as combinations to safes or the location of bank
advo.
These are governed by the rules on searches and seizures, rather than
A\ptl
governing self-incrimination.
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37. Explain our fundamental
~
Rights.
Ans: Initially and Originally there were about seven fundamental rights but after
the abolition of Zamindari Act 1950, there number reduced to about six which are
as follows:
1. Right to equality (Article 14-18) which entails in itself that everyone stands
equal before the law and equal treatment should be given to everyone
implying a complete prohibition of discrimination founded on the grounds
race, caste, creed, or gender.
2. Right to Freedom (Article 19-22): Each individual has the right to freedom
form an association, to peacefully assemble, to practice any profession, and
carry on any trade, occupation, or business. Contains one of the most
significant right i.e. Right to Life and Liberty (Article 21). Protection and
rights to an accused in respect to arrest and detention for conviction of any
offense under the penal code of the country.
3. Right against Exploitation (Article 23 and 24): This Article entails in
themselves important and rights such as the.prohibition of Child Labor or
Forced Labor and Human trafficking.
4. Right to Freedom of Religion (Article 25- Article 28): This specific
the Constitution is of utmost importance in a country like India where
a huge diversity of religion; this right provides the citizens with the
follow and practice any religion and most importantly grants
conscience to an Individual. The rights under this head also
provide a clause concerning paying taxes for religious purposes.
5. Cultural and Educational Rights (Article 29 and Article 30): These
entailed in Part III provides protection to different languages and varieties
culture present in India and additionally protects the rights and culture of
minorities, right to minorities to establish and administer educational
Institution, etc.
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6. Right to seek Constitutional
remedies: Article 32 as described by
Dr.Ambedkar the heart and soul of the Indian constitution, these remedies are
available to any individual whose fundamental right gest violated, and these
rights enshrined in the Constitution empowers the Supreme Court of India to
issue 5 types of writs.
However, the right to property was deleted from the aforementioned list of
Fundamental Rights by the 44th Amendment Act 1978, and thereby this
amendment made the Right to property as a Non-Fundamental Constitutional
Right under Article 300-A in Part XII of the Constitution.
What is meant by Free Legal Aid? Is Free Legal Aid is a fundamental right?
Ans: Legal Aid essentially refers to the process of providing free legal services to
those sections of society which are not self sustainable in obtaining services of an
advocate in order to conduct a case in front of court, hence denying them justice.
A person shall be entitled to Free Legal Aid, Legal Advice or free Legal Services
if that person is:
} A member of Scheduled Caste or Scheduled Tribe
} A victim of trafficking in human beings or beggar
} Woman or a child
} A mentally ill or otherwise disabled person;
} Victim of mass disaster ethnic violence, caste atrocity, flood, drought,
earthquake or industrial disaster;
} An Industrial workman
.
} Person in custody
} Legal aid can be provided to a person for a case which includes a suit or any
proceeding before a court.
} Person to whom legal aid is provided is not required to pay anything on the
litigation.
Legal services to be provided may include anyone or more of the following:
• Payment of court-fees, process fees and all other charges payable or incurred
in connection with any legal proceedings;
• Charges for drafting, preparing and filling of any legal proceedings arid
representation by a legal practitioner in legal proceedings;
• Cost of obtaining and supply of certified cop les of judgments, order and other
documents in legal proceedings;
• Cost of preparation of paper book (including paper, printing and translation of
documents) in legal proceedings and expenses incidental thereto.
Availability of legal services:
• In every State and District Legal Services Authorities have been established
• Taluka or mandaI legal services committees have been constituted at the
Talukalmandal.
• The National Legal Services Authority is the Central Authority which
implements the various schemes such as lok adalats for disposing of pending
matters, legal literacy and awareness campaigns, legal aid facilities in jails etc.
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LAW OF COf'JSI
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• For availing legal services one is required to approach the High Court or the
District Courts which have constituted Legal Services Authorities
for
providing legal services.
• A.M.Hoskot V. State of Maharashtra AIR 1978 SC 1548.
• HussainaraKhatoon
V. Home Secretary, State of Bihar, AIR 1979 SC
1322.
Article 39-A of the Constitution provides for equal justice and free legal aid. On
several occasions, like in the cases mentioned above, it has been held by the
Supreme Court that legal aid and speedy trial are to treated as a part of the
fundamental rights under Article 21 of the Constitution. It is enforceable by the
Courts and the State is under a duty to provide legal aid and legal assistance to a
poor and needy person at its own expense.
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39. What is Reasonable Classification? How does it protect equality?
ADs: Article 13 of the Indian constitution forbids class legislation but it does not
prohibit the reasonable classification of objects, persons, and transactions for the
purpose so as to achieve specific ends by the parliament.
Such classification should not be artificial, arbitrary or evasive and it must
rest on substantial distinction which is real. It must bear a reasonable and just
relation to the sought object which is to be achieved by the legislation. Reasonable
classification as laid by the Indian Supreme Court has two conditions as in the
of SaurabhChaudhari v Union Of India, are• The classification must be founded on intelligible differentia, di . JJ:;Lll"'JJJUjij
grouped together persons or groups from the left out ones of the group.
• The differential must be in a rational relation 'with the sought object that is
be achieved by the act. The object of the act and differential on the basis
classification are two separate things. It is essential that there must be
presence of nexus (connection) between the object of the act and the basis .,
classification. When a reasonable basis is not present for classification
such classification made by the legislature must be declared discriminatory.
The age at which a person would be deemed competent between themselves
be fixed by the legislature but competency cannot be claimed. A contract
dependent on the color of hair cannot be made, and such a classification
be arbitrary.
Article 14 Permits Classification But Prohibits Class Legislation
Article 14 guarantee equal protection of laws and they are:
Neither means that the laws need to be general in character nor that it
applicable to everyone, which means, the same law applies to every pers
• It does not assess attainment or situations in the same position.
classes have various needs that require separate treatment.
• For safety and security different laws for varying places and legitimate
policies enacting laws lie at the best interest of the state.
• Identical treatment in unequal situations, in fact, would amount as .
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Therefore for the society to progress a reasonable classification is not only
itted but also necessary. The article applies on the reasonable basis, equals
are treated differently. The article does not apply where unequals and equals are
givendifferent treatments.
.
.
Conferring particular privileges upon a class of persons, class legislation
makes improper discrimination by selecting a large number of persons arbitrarily.
No reasonable or substantial difference can be found in justifying the exclusion of
the one and the inclusion of the other from such privilege.
Protection against Ex -Post Facto Law.
Ex Post Facto is a Latin word which means 'after the fact' or 'out or the
, and also known as retroactive laws.
Ex Post Facto laws are those laws which are enacted after an action is committed
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such an act illegal although it was legal when committed. In the literal
, it's a law which criminalizes such conduct which was once legal.
For Example- if' A' committed then on 17th Nov which was not an offence on that
particular date. On 20th Nov. legislature enacted a law under which theft was an
offence.Then whatever punishment was laid down by legislature' A' was held liable
as per Ex Post Facto laws, therefore' A' had to bear the same punishment as per new
lawseven without knowing the consequence of his act when he was committing it.
"h
Ex post facto law in India
As per Indian laws, Art. 20( 1) of the Indian Constitution says ex post facto laws are
prohibited i.e. no retrospective effect of accused for criminal acts i.e., no punishment
under retrospective operation. The prohibitions under Article 20(1) is only for a
conviction or sentence, but not trial procedure. The objection does not apply to a
changeof procedure or of court.
The aim is to maintain law and order; to protect intentional or illegal detention.
Protection • Accused can use this right during conviction or sentence but not a trial.
• Protection is available to both citizens and foreigners for criminal cases.
• Generally in Ex Post Facto laws, there is a retrospective effect, but as per Indian
constitution, there is prohibition regarding retrospective operation. i.e. no
punishment under retrospective operation.
The 2nd part of Article 20( 1), in a literal sense, means punishment which
was in force when the offence was committed will be applicable and there will be no
retrospective operation. E.g. - A commit theft on 27th Aug 2020 imprisoned for 2
months. Later on 1st Sept. 2020 amendment was made which says the average
punishment of theft is 3month in addition to monetary compensation that should be
given to the victim. Now the judiciary can't punish offenders of 27th Aug availing
the extended punishment of 1st Sept because this Act doesn't hold retrospective
operation.
J8 SERIES
LAW OF CONSi i j uTiOr~
50. Explain the constitutional
Union of India.
provisions
relating
to formation
of new states in
Ans. The author of the "Constitution of India" does not believe that unlike modern
Indians, the states, regions and mandals of India are - static, unchanging and
permanent. They had the maturity to accept that states would evolve and change,
and therefore made provisions for creation of new states in Indian Union.
Constitution
of India
Under Article 3, a new state may be formed or established in the follow ing \\ ays:
I.
By separation of territory from any state or
2.
By uniting two or more states or
3.
By uniting any parts of states
4.
By uniting any territory to a part of any state
Parliament under this article can also increase or decrease the area of any
state or alter the boundaries or change the name of any state. Article 3 deals with the
formation of a new state out if the territories of the exiting states. The power to form
new states under article 3 (a) includes the power to form a new state or union
territory by uniting a part of any state or union territory to any other state or union
territory.
The constitution of India empowers the parliament to alter the territory or
names of the states without the consent. It can form new states and alter boundaries
or names of the existing states by a law passed by simple majority.
The conditions laid down for making of such a law must be followed. Itprovide that
• No Bill for the purpose of Article 3 shall be introduced in either House of
Parliament except on the recommendation of the President and unless, where the
proposal contained in the Bill affects the area, boundaries or name of any of
States, the Bill has been referred by the President to the Legislature of that State
for expressing its views thereon within such period as may be specified in
reference or within such further period as the President may allow and
period so specified or allowed has expired.
• If the state legislature does not express its views within the time specified
extended, the parliament is not bound to accept or act upon the views of the
legislature.
• Further, it is not necessary to make fresh reference to state legislature every
an amendment to the bill is proposed and accepted.
Thus, the article explains the flexibility of the Indian constitution by a
majority and by ordinary legislative process. Parliament may form a new
later boundaries of the existing states and thereby change political map of
51.
Explain the Unitary elements in the Indian Constitution.
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Features
of the Indian Constitution:-
Unitary Features of constitution make a centralized government. It is a
in which all powers held by the government belong to a single, central
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LAW OF CONSTITIlTION
system is governed constitutionally as one single unit. All power is top
. A unitary state is a sovereign state governed as one single unit in which the
I government is supreme.
itary features:
, Strong Centre:The division of powers is in favour of the Centre and highly inequitable from the
federal angle. Firstly, the Union List contains more subjects than the State List.
Secondly. the more important subjects have been included in the Union List.
Thirdly, the Centre has overriding authority over the Concurrent List. Finally. the
residuary powers have also been lett \\ ith the Centre, while in the USA, they are
vestedin the states. Thus, the Constitution has made the Centre very strong.
2. States Not Indestructible:Unlike in other federations, the states in India have no right to territorial integrity.
The Parliament can by unilateral action change the area, boundaries or name of any
state.Moreover, it requires only a simple majority and not a special majority.
3. Single Constitution:Usually, in a federation, the states have the right to frame their own Constitution
separate from that of the Centre. In India. on the contrary, no such power is given to
the states. The Constitution of India embodies not only the Constitution of the
Centre but also those of the states. Both the Centre and the states must operate
within this single-frame.
4. Flexibility of the Constitution:)ee
The process of constitutional amendment is less rigid than what is found in other
~use
federations. The bulk of the Constitution can be amended by the unilateral action of
""ere
the Parliament, either by simple majority or by special majority. Further, the power
a.ofthe
to initiate an amendment to the Constitution lies only with the Centre.
·tmt State S.No Equality of State Representation:in the The states are given representation in the Rajya Sabha on the basis of population.
v and the
Hence, the membership varies from 1 to 31. This principle is regarded as a safeguard
for smaller states.
e_afiedor
6. Emergency Provisions:~e state
. The Constitution stipulates three types of emergencies-national, state and financial.
During an emergency, the Central government: becomes all powerful and the states
time
go into the total control of the Centre. It converts the federal structure into a unitary
one without a formal amendment of the Constitution.
a simple
7. Single Citizenship:.tateor
In spite of a dual polity, the Constitution of India, like that of Canada, adopted the
of India.
system of single citizenship. There is only Indian Citizenship and no separate state
citizenship.
8. Integrated Judiciary:The Indian Constitution has established an integrated judicial system with the
Supreme Court at the top and the state high courts below it. This single system of
courts enforces both the Central laws as well as the state laws ..
•
•
•
1.
•
:fry
•
•
•
JB SERIES
43
LAW OF CONSII
ru liON
Arti~
In India also, the Centre and the states have their separate public services. But, in In I\J<
addition, there are all-India services (lAS, IPS, and IFS) which are common to both Indian
the Centre and the states. The members of these services are recruited and trained by forei\-t
9. All-India Services:-
the Centre which also possesses ultimate control over them.
] O. Integrated Audit Machinery:-
rega~
The Comptroller and Auditor-General or India audit the accounts of not only the
Central government but also those or the states. But, his appointment and removal is
done by the president without consulting the states.
cl'tiz("'')
11. Parliament's
Authority Over State List:-
Even in the limited sphere of authority allotted to them, the states do not have
exclusive control. The Parliament is empowered to legislate on any subject of the
State List if Rajya Sabha passes a resolution to that effect in the national interest.
12. Appointment of Governor:The governor, who is the head of the state. is appointed by the President. He holds
office during the pleasure of the President. lie also acts as an agent of the Centre.
.~
Import
Exa\.llfJ
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13. Integrated Election Machinery:-
FactW'
The Election Commission conducts elections not only to the Central legislature
also to the state legislatures. But, this body is constituted by the President and
states have no say in this matter. The position is same with regard to the removal
its members as well..
the (\+1i
not~1
14. Veto Over State Bills:-
of
~ud,-"
Impose.
(2)~
to reserve certain types of bills passed by the state a flag i~
The governor is empowered
legislature for the consideration of the President. The President can withhold
assent to such bills not only in the first instance but also in the second .
Thus, the President enjoys absolute veto (and not suspensive veto) over state bills.
can ~
Constit
natidM\
\oJ
52. Explain the scope and nature of the freedom of speech and
guaranteed to Indian citizens.
Ans: Meaning of freedom of speech and expression
The right to express one's own ideas, thoughts and opinions freely through
printing, picture, gestures, spoken words or any other mode is the essence
freedom of speech and expression. It includes
• The expression of one's ideas through visible representations
signs and other means of the communicable medium.
Elemel
pYIr\rl',~~IU'D,_
such as
• The right to propagate one's views through print media or through
communication channel.
• The freedom of the press is also included in this category.
Free propagation of ideas is the necessary objective and this may be
through the press or any other platform. These two freedoms i.e., freedom of
and freedom of expression have their own respective qualifications.
TheV
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3. Thi
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Article 19 (1)( a) of the Indian constitution
In India, the freedom of speech and expression is granted by ArticleI9(1)(a) of the
Indian Constitution, which is available only to the citizens of India and not to
foreign nationals ..
The right that is mentioned above, guaranteed by our constitution, is
regarded as one of the most basic elements of a healthy d~mocracy because i.tallows
citizens to participate in the social and political process ot a country very actively.
Importance of freedom of speech and expression:
Example: Compare the past when women were not allowed to vote with the present
day. Now women are allowed to vote. How docs this happen? It happens because of
the right of free speech and expression. The right to free speech and expression ha~e
that power through which it can break any type of giant brick that comes in its way.
Free speech and expression not only includes the right to express what one
thinks but it also includes listening to others. When a person expresses his/her
opinion, it only carries the intrinsic value of that opinion and being silent on that
opinion is an injustice to the basic human rights.
Union of India v Naveen lindal and Anr.,[2]
Facts: The respondent Naveen Jindal was not allowed to hoist the national flag at
the office premise of his factory by government officials on the ground that it was
not permissible under the Flag Code of India.
Judgment: In this case, the high court held that the restrictions that the Flag Code
imposed on citizens on hoisting the National Flag were not permissible under clause
(2) of Article 19 of the Indian Constitution. The court has also stated that displaying
a flag is an expression of pride as well as an expression of genuine enthusiasm and it
can only be restricted in accordance with what has been prescribed in the
.1tance.. Constitution, otherwise, the restriction would discourage the citizens or Indian
nationals from identifying with the flag of the country.
•
•
•
Elements for the right to freedom of speech and expression:
The main elements for the right to freedom of speech and expression are as follows:
1. This right is available only to a citizen of India and not to the person of other
nationalities i.e., foreign nationals.
2. The freedom of speech under Article 19(1)(a) of the Indian constitution includes
the right to express oneself through any medium, such as in words of writing,
printing, gesture, etc.
3. This right is not absolute, which means that the government has the right to
make laws and to impose reasonable restrictions in the interest of sovereignty
and integrity of India.
4. Thus, failure on the part of the State to guarantee the freedom of right and
expression to all its citizens would also constitute a violation of Article 19(1)(a)
of the Indian constitution.
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LAW OF CONSTITUTION
Freedom of press:
chall~~
To preserve the democratic way of life it is necessary that people should have the
freedom to ,express ~heir feelings and .to ma,ke their views known to people at large.
Freedom ot sp~ech. Includes prop~gatlOn ~t one's views through print media or any
other commumcation
channels like radio and television, subject to reaso
restrictions imposed under Article 19(2) of the Indian constitution.
Indio(/
Conclusion: In the modem world, the right to freedom of speech does not inc
only freedom to express one's view through words but it has also included s
means of communication to express one's views. The right that we talked about
subject to reasonable restriction under Article 19(2) of the Indian Constitution.
Ans. T
thec~
Articles
\.If
notw\_,~
State A
Although freedom of the press is not mentioned in Article 19 of the Indian integlw't
Constitution, yet it has been a part of freedom of speech and expression as· the enti:
considered hy judges of the Supreme Court through decided cases.
High~
In the leading case of Romesh Thapar v. The State of Madras,[5] it
been decided by the supreme court that freedom of the press is an intrinsic part
54. 11(
freedom of speech and expression.
Inter\)
53. Explain the nature of the Indian Constitution. How did the Supreme '-'Ullin.'
interpret the same?
Ans. The nature of the Indian Constitution is Federal in nature but unitary
spirit. Central Government holds all the ability, however, a federal system di .
power between national and native types of government.
Judicial review was adopted by the constitution of India from judicial review in •.
United States. In the Indian constitution, judicial review is dealt with in Article l
The constitution is the supreme power of the nation, and governs all laws.
According to Article 13:
1. All pre-constitutional
laws, if they conflict wholly or in part
constitution, shall have all conflicting provisions deemed ineffective until
amendment to the constitution ends the conflict; the law will again come
force if it is compatible with the constitution as amended (the Doctrine
Eclipse).
2. Laws made after the adoption of the constitution must be compatible with' ..
they will be deemed void ab initio.
3. In such situations, the Supreme Court (or a high court) determines if a law
conformity with the constitution. If such an interpretation is not possible
of inconsistency (and where separation is possible), the provision
inconsistent with the constitution is considered void. In addition to
Articles 32, 226 and 227 provide the constitutional basis for judicial review.
Due to the adoption of the Thirty-eighth Amendment, the Supreme
was not allowed to preside over any laws adopted during a state of emergency
infringe fundamental
rights under
article
32 (the right to co
remedies). The Forty-second Amendment widened Article 31C and added
368(4) and 368(5), stating that any law passed by Parliament could
approac
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LAW OF CONSTITUTION
in court. The Supreme Court ruled in Minerva Mills v. Union of
that judicial review is a basic characteristic of the constitution, overturning
368(4),368(5) and 31C.
One of the unique features of the Indian Constitution is that,
ing the adoption of a federal system and existence of Central Acts and
Acts in their respective spheres, it has generally provided for a single
system of Courts to administer both Union and State laws. At the apex of
entire judicial system, exists the Supreme Court of India below which are the
Courts in each State or group of States.
~__ ·~n"<>"
Describe the Evolution and Institutionalization of the concept of Public
Litigation (PIL) in India.
To make justice more accessible to all citizens. the Supreme Court accepted
concept of Public Interest Litigation. PIL allowed people from all walks of life to
courts for enforcing their fundamental rights. Social welfare groups, social
and any public-spirited individual could also approach the courts by
'"''''
..''a....
Fo the broader interests of the public.
Standi:
Locus Standi means the legal capacity to sue or approach courts. Under both
inquisitorial and adversarial system, the parties approaching the courts must
been aggrieved or deprived of their rights. Thus, in any legal process, the
,.,•..,."..,..,
of locus standi is necessary.
PIL is different from the usual method of litigation. Locus standi is mandatory
.
litigation, but a genuine interest or legitimate concern about the issues
public will act as a substitute for local standi in a PIL.
Locus standi is relaxed and made flexible in a Public Interest Litigation to
the scope of litigation by considering the rights and issues of the
~",,~
.......
',.....,...and underprivileged.
nal provisions:
The Supreme court can declare a law ultra vires if it is inconsistent with the
mentioned under part III. The Supreme court can issue orders or directions or
such as habeas corpus, certiorari, mandamus, prohibition,' quo warranto to
the rights of the citizens.
So, citizens can file a PIL before the Supreme Court under Article 32 or
the High Court under Article 226. The aggrieved party need not appear
the court to enforce the right under Article 32. The court has the power to suo
take cognizance in any matter and proceed with it. Moreover, the courts also
the power to treat any case with private interest as a publicly interesting case.
.. ~ .........
C' ..
......
"'<l('n
cases relating to PIL in India:
v State of Rajasthan
JB
SERIES
47
LAW u!- CONSTITUTION
48 \.
\.,
This case played a crucial role in influencing the Parliament to enact
the Sexual Harassment at Workplace Ac, 2013. In this case. a social activist Was
gang-raped for vengeance. All the accused were acquitted by the trial court. The
state applied for a petition to the Supreme court under the name Vishaka. The COUrt
laid down the guidelines to follow in workplaces to prevent sexual harassment
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Hussainara
Khatoon
v State of Bihar:
This case dealt
prisoners. An advocate
condition of under trial
liberties. The court held
under Article 21. '
with the harsh conditions of prisons and under trial
filed a petition under Article 32 describing the poor
prisoners and their inability to safeguard their personal
that the right to a speedy trial is a part of the right to life
S.P Gupta v Union of India:
A group of lawyers filed a writ petition under Article 226 of the
Constitution regarding the appointment of Judges. The petition was allowed as the
lawyers had a genuine interest in the disposal of cases and appointment of judges.
This case opened up a new era for public interest litigation in India. PIL became
of the most effective tools to enforce public duty. which was earlier executed
illegally, thereby causing injury to society
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55. The Directive Principles
are not justifiable
but fundamental
in
governance of thecountry. Explain.
Ans. Article 37 mentions the two important characteristics of DPSP, and they are:
• It is not enforceable in any court of Law.
• And they are very basic and essential for the governance of the country.
The provisions mentioned in this part shall not be enforceable in any court and
principles laid down in this part are fundamental for the governance of
country. The State must make laws according to it because the ultimate aim
the State is the welfare of its citizens.
Socialist principles:
• The articles in DPSP which follows the socialist principles are - Article ,
Article 39, Article 39 A, Article 41, Article 42, Article 43, Article 43 A ..
Article 47.
Article 38:
• Article 38 talks about Social, Political and Economic Justice.
• It directs that the State should secure a social order which provides
political and economic justice to all its citizens.
• Article 38(2) says that state shall reduce the inequalities faced by the
the grounds like income, status, facilities, opportunities, etc.
Article 39:
• Article 39 mentions all the Principles of policy which must be
the State.
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Court
The State shall make its policies towards securing the following
objectives• All the men, women and citizens should have the right to an adequate means
of livelihood
• The ownership and control of the people over any material resources under the
community should be distributed as it is for the common good of the public;
• There shall be no gender discrimination; both men and women should get
equal pay for equal work.
• The health and strength possessed by any worker, men and women, and the
tender age of children should not be abused and the citizens should not be
forced to enter and indulge into any occupation or profession which is not
suitable for their age or strength, not even out of any financial necessity or
economic backwardness
• Children must be given enough opportunities and facilities so that they
develop in a healthy manner and in such conditions where their freedom and
dignity, including the fact that their childhood and youth remain protected,
against any form of exploitation and against any sort or moral and material
abandonment.
Article 39A:
• Article 39A talks about Free Legal aid: It says that the State shall provide free
legal aid through any suitable legislation. So that it could ensure that the
opportunities for securing justice are not denied to any citizen because of
economic backwardness or any other kind of disabilities.
41:
Article 41 talks about Welfare Government. : It says that state shall make
some effective provisions for securing the right to work, etc. and in cases of
unemployment, old age, disablement or any other cases. State shall provide
public assistance.
42:
Article 42 talks about Securing just and humane work and maternity relief:
It says that state shall create some provisions so that the citizens get easy, just
and humane conditions for working. It shall also provide maternity relief for
the women.
Article 43 talks about Fair wages and a decent standard of life.
It says that the state can endeavor to secure by appropriate legislation or
economic organization to all the workers employed in agricultural, industrial
or otherwise, work, a living wage, conditions of work, ensuring a decent
standard of life and enjoyment of leisure and social-cultural opportunities and
promote cottage industries on an individual or cooperative basis in rural and
remote areas of the country.
47:
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49
LAW Uf- Lui\i) iii U j i0j~
It says that the State shall look into the matter of raising the level of nutrition
and the standard of living of its people and it is the duty of the State to keep a
check on the improvement of public health.
56. Explain the Jurisdiction of Supreme Court under Article 32.
Ans. The Supreme Court has original, appellate and advisory jurisdiction. In
addition, Article 32 or the Constitution gives an extensive original jurisdiction to the
Supreme Court in regard to enforcement of Fundamental Rights. It is empowered
issue directions. orders or writs, including writs in the nature or habeas
mandamus, prohibition. quo warranto and certiorari to enforce them.
Constitutional remedies" is envisaged in our Indian Constitution under
32 in Part Ill. Every citizen of India is guaranteed five fundamental rights, in
it's six but if any or the five fundamental rights are violated then the
fundamental right ensures people and protects other fundamental rights from
violated. concerning that, if any fundamental right is infringed, sixth fund
right .i.e.. "Right to Constitutional Remedies" provides that people can enforce
claim these rights in the Hon 'ble Supreme court.
Remedies for enforcement of the rights conferred by Article 32
This article contains four clauses:
1.People have the right to move the Court by appropriate proceedings for
enforcement of their rights granted by part III of the Indian Constitution.
other words one can move to enforce his/her right to the apex court in
of proper proceedings is assured.
2. The Supreme Court can declare a law ultra vires if it is inconsistent with
rights mentioned under part III. The Supreme court can issue orders
directions or writs such as habeas corpus, certiorari, mandamus,
quo warranto to enforce the rights of the citizens.,
3. Parliament can empower any other court to issue directions, does
include Supreme Court & High court. M V Plyee rightly claims the first
clauses of article 32, together make fundamental rights under the
real and forming the Crowing part of the entire chapter.
4. The right to move to the Supreme Court shall not be suspended except
by the constitution like in case of emergency. In other words, the Pres
India may under article 358 make separate proclamation by which
remains suspended even the person's right is violated. This is
individual liberty is not more important than the interest of states.
Article 32 is remarked as the heart and soul of the Constitution. The rights
part III would be meaningless if they cannot be enforced.
The Supreme court can declare a law ultra vires if it is inconsistent
rights mentioned under part III. The Supreme court can issue orders or
writs such as habeas corpus, certiorari, mandamus, prohibition, quo
enforce the rights of the citizens.
Rf\,/I
India;
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50
lAW OF CONSTITUTION
A mere threat to infringement of fundamental rights is enough to justify the
:issueof the writ in case of Simranjit vs Union of India.
Right to constitutional remedies works on the Doctrine "Ubi Jus fbi
Remedium" which means when there is right there is a remedy. As the people of
Indiaguaranteed many rights so no one can violate these rights, then there must be
someremedies to protect them.
57. Explain the significance and classification Directive Principles of State
icy.
Ans. Directive Principles of State Policy are in the form of
ions/guidelines to the governments at the center as well as states. Though
principles are non-justiablc, they are fundamental in the governance of the
. The idea of Directive Principles of State Policy has been taken from the
Republic.
Directive Principles of State Policy have been grouped into four categories.
ese are:
1. The economic and social principles,
2. The Gandhian principles,
3. Principles and Policies relating to international peace and security and
4. Miscellaneous.
economic and social Principles The state shall endeavor to achieve Social and
......
""",
..'-""
ii'"welfare of the people by:
• Providing adequate means of livelihood for both men and women.
• Reorganizing the economic system in a way to avoid concentration of wealth
in few hands.
• Securing equal pay for equal work for both men and women.
• Securing suitable employment and healthy working conditions for men,
women and children.
Guarding the children against exploitation and moral degradation.
• Making effective provisions for securing the right to work, education and
public assistance in case of unemployment, old age, sickness and disablement.
Making provisions for securing just and humane conditions of work and for
maternity relief.
Taking steps to secure the participation of workers in the management of
undertakings etc.
Promoting education and economic interests of working sections of the people
especially the SCs and STs.
• Securing for all the workers reasonable leisure and cultural opportunities.
Making efforts to raise the standard of living and public health.
Providing early childhood care and education to all children until they
complete the age of 6 years.
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LAW Ut-lOi\J)
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------------------------------------------~~~~~~~~----II
I
The Gandhian
Principles:
There are certain principles, based on the ideals
advocated by Mahatma Gandhi. These Principles are as follows:
(1) To organize village Panchayats.
(2) To promote cottage industries in rural areas.
(3) To prohibit intoxicating drinks and drugs that is injurious to health.
(4) To preserve and improve the breeds of the cattle and prohibit slaughter of
cows, calves and other 111 ileh and drought animals.
Principles Relating to International
Peace and Security: India should render
active cooperation tor world peace and security and for that the state shall endeavor
to: •
•
•
•
2. Mandamus
3. Certiorari
4. Quo Warranto
5. Prohibition
The Writ of Habeas Corpus is issued by the Courts in those cases where a
is illegally detained. Habeas Corpus means 'to have the body' and it is one
most effective remedies available to a person detained.
grCTle
detent
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5 types of writs which can be issued by
1. Habeas Corpus
ccWt
thtVi
Tl(-y
is irre'g
Ans. Writs are a written order from the Supreme Court or High Court
commands constitutional remedies for Indian Citizens against the violation of
fundamental rights.
32 and Article 226 in the Indian Constitution deals
constitutional remedies that an Indian citizen can seek from the Supreme C
India and High Courts respectively against the violation of his/her
rights.
provides
drCn
IlIustJ
detame
58. Habeas Corpus
The Indian Constitution
Courts. They are:
«>
requlI
de~n
wet
Promote international peace and security.
Maintain just and honorable relations between nations.
Foster respect tor international laws and treaty obligations.
Encourage settlements of international disputes by mutual agreement.
Miscellaneous: The Directive Principles in this category call upon the state: _
• To secure for all Indians a uniform civil code.
• To protect historical monuments.
• To save environment from pollution and protect wild life.
• To make arrangements tor disbursement of free legal justice through u~
legislation.
B~
reqV
52
LAW OF CONSTITUTION
-als
•
•
By this Writ, the Court commands the person or authority who has detained or
restrained another person to present such person before the Court. The Court
requires the detaining person to provide the grounds on which the person has been
detained and if he fails to provide a valid ground, the person who has been
detained will be released by the Court immediately.
Illustration:
A is wrongfully detained by 8, a police officer. A writes to the High
Court regarding the same. The High Court summons B with A and asks the
grounds for. detaining A. If B fails to provide a valid ground or justification for A's
detention, A will be free to go.
This Writ is very important for the personal liherty of the citizens because if this
Writ is not provided by the Constitution a person can be unlawfully restrained or
detained by any authority and it will be a clear violation of the personal liherty of
the citizens.
The Writ of Habeas Corpus is issued by the Courts in those cases where a person
is illegally detained. Habeas Corpus means 'to have the body' and it is one of the
most effective remedies available to a person detained.
By this Writ, the Court commands the person or authority who has detained or
restrained another person to present such person before the Court. The Court
requires the detaining person to provide the grounds on which the person has been
detained and if he fails to provide a valid ground, the person Who has been
detained will be released by the Court immediately.
: A is wrongfully detained by B, a police officer. A writes to the High
regarding the same. The High Court summons B with A and asks the
for detaining A. IfB fails to provide a valid ground or justification for A's
on, A will be free to go. This Writ is very important for the personal liberty
the citizens
Corpus can be issued in follOWing example cases:
When the person is detained and not produced before the magistrate within 24
hours
When the person is arrested without any violation of a law.
When a person is arrested under a law which is unconstitutional
When detention is done to harm the person or is malajide .
.generalrule of filing the petition is that a person whose right has been infringed
file a petition. But Habeas corpus is an exception and anybody on behalf of
detainee can file a petition. Habeas corpus writ is applicable to preventive
. also. This writ can be issued against both public authorities as well as
law Sunil Batra v. Delhi Administration:
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LAW OF CONSTITUTION
In this case the Supreme Court had accepted the application made through a letter
by a co-convict (a stranger) due to the inhuman treatment of prisoners. In this case,
the letter was accepted as an application and the writ of Habeas Corpus was
issued.
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59. Mandamus
IJI~t
Ans. Mandamus means "we command". This writ is a command issued hy court
to a public official, public body. corporation, inferior court, tribunal or govern
asking them to perform their duties which they have refused to perform. Due
this, Mandamus is called a "wakening call" and it awakes the sleeping authorities
to perform their duty. Mandamus thus demands an activity and sets the authority'
action.
decisi
the~ .
Case law: Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal
Im~
In this case the Income Tax Appellate Tribunal had given clear directions to
respondent Income Tax Officer by its final order. The Income Tax Officer had
refused to carry out the directions given by the Tribunal. It was held by
Supreme Court that the Income Tax officer had a mandatory duty to fulfill
directions given by the Tribunal and non-performance of which amounted to
injustice. Thus, the Writ of Mandamus was issued to direct the officer to carry
the directions of the Tribunal.
Mandamus cannot be issued against the following:
• A private individual or private body.
• If the duty in question is discretionary and not mandatory.
• Against president or governors of state
• Against a working chief justice
• To enforce some kind of private contract.
A petition for writ of mandamus can be filed by any person
seeks a legal duty to be performed by a person' or a body. Such a filing
must have real or special interest in the subject matter and must have legal
do so.
60. Certiorari
ADs. Certiorari is a different type of writ when compared with other W
Writ is corrective in nature which means the purpose of this Writ is to
error which is apparent on the records.
Certiorari is a Writ which is issued by a superior court to an inferior
This can be issued when the superior court wants to decide a matter in
to,-,"
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L/\')J OF CCNSTITUTICrl
itself or if there is an excess of jurisdiction by the inferior court. This Writ can also
be issued when there is a fundamental error in the procedure followed by the
inferior court or if there is a violation of the principles of natural justice.
•
•
If the superior court finds out that there has been a violation of natural
justice or a fundamental error on the procedure adopted, it can quash the order of
that inferior court.
Illustration: There is a case in the District Court and the court has no jurisdiction
to decide such cases. Still, the District Court Judge tries the case and gives his
decision and an application is made by A (the aggrieved party by such decision) to
the High Court. Hereby the power of issuing Writs. the High Court will issue a
Writ of Certiorari on the order of the District Court, as a result, the order of the
District Court will be quashed.
Important Conditions for Certiorari
1. The body or person has legal authority.
2. Such authority is related to determining those questions which affect the
rights of the people.
3. Such a body or person has a duty to act judicially in doing its functions.
4. Such a person or body has acted in excess of their jurisdiction or legal
authority.
The Writ of Certiorari lies against those bodies which are judicial or quasi. icial in nature. Thus, when anybody or a person is performing a judicial act,
. acts can be subjected to the Writ of Certiorari.
The Writ of Certiorari lies against those bodies which are judicial or quasijudicial in nature. Thus, when anybody or a person is performing a judicial act,
their acts can be subjected to the Writ of Certiorari.
Quo warranto
The Writ of Quo Warranto is issued by the courts againsta private person
he assumes an office on which he has no right. Quo Warranto literally means
what authority' and it is an effective measure to prevent people from taking
public offices.
: A who is a private citizen and has no qualifications for the post of
inspector assumes such office. Here a Writ of Quo Warranto can be issued
A to call into question his authority on which he has taken the control of
office of sub-inspector.
The power to issue this Writ is discretionary on the courts and therefore
can demand that the court is bound to issue this writ.
JB SERIES
55
56'-'
LA\V OF CONSTITUTION
'-1.
Conditions for issuing Quo Warranto
The Writ can be issued only when these conditions are fulfilled:
1. The office which has been wrongfully assumed by the private person is a
public office.
2. The office was created by the Constitution or by any other statute.
3. The nature of the duties which arises from this office is public.
4. The term of the office must be of a permanent nature and it should not be
terminable at any person or authoritvs pleasure.
5. The person against whom the Writ is sought to be issued is in" actual
possession of the office and is using such office.
6. This Writ can also be issued in those cases where a person was entitled to
hold the office earlier but after getting disqualified he is still in possession
of the office.
Dit~·
80\.lt
::~
thi~
7. Thus in cases where the office is of private nature, this Writ cannot be
Writ a
issued by the Court. This view was held by the court in the case of Niranjan
ac~e
Kumar Goenka v. The University of Bihar, Muzzfarpur, in which the court
observed that the Writ of Quo Warranto cannot be issued against a
63. What
who is not holding a public office.
'-'
ADS~'
USU\.,l
62. Prohibition
The last Writ which can be issued under the Constitution is the Writ
Prohibition. This Writ is not issued often and is an extraordinary remedy which
Superior Court issues to an inferior court or tribunal for stopping them
deciding a case because these courts do not have the jurisdiction.
ADS.
If the court or tribunals does not have jurisdiction and it still de(;lQellI
the case, it will be an invalid judgement because for an act to be legal it .....
have the sanction of law.
l1v·... _
For e.g., if a District Court is hearing an appeal against the
the High Court, such an act is bound to be prohibited because the District
does not have the power to hear such an appeal. So, a Writ of Prohibition will
issued against such an act of District Court.
Rules of Writ of Prohibition
The Writ can be issued only when:
1. The inferior court or tribunal has overstepped its jurisdiction
2. The court or tribunal is acting against the provisions of law
genuim
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Under
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LAW OF CONSTITUTION
3. In cases where the court is partly acting within its jurisdiction and partly
outside it, the Writ will be issued against the act which is partly outside its
jurisdiction.
4. The fact that the applicant has a right to appeal against the order of the
inferior court will not be a bar to issue this Writ.
5. This Writ can be issued only when the proceedings are pending in the
interior court and not when an order has already been passed by that court ..
•
e
••
lctual
6. The Writ of Prohibition can be issued only against a judicial or a quasi-
judicial body and it cannot be issued against any administrative body .
Difference between Prohibition and Certiorari
Both the Writs Certiorari and Prohibition appear to be the same but there is one
major difference between the two. In the Writ of Prohibition, the superior court
issues the writ before the final order is passed by the inferior court and therefore
this is a preventive remedy, while in Writ of Certiorari the superior court issues the
Writ after the inferior court has made the final order. Thus the Writ of Certiorari is
a corrective remedy by which the order of the inferior court is quashed.
63. What is PIL?
ADs. The full form of PIL is Public Interest Litigation. It is different from the
usual method of litigation. Locus standi is mandatory in traditional litigation, but a
genuine interest or legitimate concern about the issues of the public will act as a
substitute for local standi in a PIL.
Locus Standi: Locus Standi means the legal capacity to sue or approach courts.
Under both the inquisitorial and adversarial system, the parties approaching the
courts must have been aggrieved or deprived of their rights. Thus, in any legal
process, the existence of locus standi is necessary
Locus standi is relaxed and made flexible in a Public Interest Litigation to
expand the scope of litigation by considering the rights and issues of the
marginalized and underprivileged.
Constitutional provisions
A citizen can avail of Article 32 only if there is a violation of a
fundamental right. However, Article 226 is available not only for the enforcement
of fundamental rights but also for other purposes. Therefore, the power under
Article32 is more restricted than the powers under Article 226.
So, citizens can file a PIL before the Supreme Court under Article 32 or
before the High Court under Article 226. The aggrieved party need not appear
before the court to enforce the right under Article 32. The court has the power to
any matter and proceed with it. Moreover, the courts
~~~_'!l_otll_
take co~niza~~:
i~
JB SERIES
':J/
LAW OF CONSTITUTION
58
\.If
also have the power to treat any case with private interest as a publicly interesting
case.
Important cases relating to PIL in India
•
Vishaka vs. State of Rajasthan
'-'
1.A pel
cODnt\.ti
metrono
This case played a crucial role in influencing the Parliament to enact the Sexual Ol:O(~.h
Harassment at Workplace Ac, 2013. In this case, a social activist was gang-raped the iIr:~
for vengeance. All the accused were acquitted by the trial court. The state applied ADs: "Ta
for a petition to the Supreme court under the name Vishaka. The court laid down
J.
the guidelines to follow in workplaces to prevent sexual harassment.
2.]\;
Yo,
Hussainara
Khatoon v State of Bihar
This case dealt with the harsh conditions of prisons and under trial prisoners.
advocate filed a petition under Article 32 describing the poor condition of
trial prisoners and their inability to safeguard their personal liberties. The eourt
held that the right to a speedy trial is a part of the right to I ife under Article 21.
Hyc
3. \.it
~~s~
2.
\.11
arre
3.~
PrAtt:
Note: Reference to page no. 51 and 52; question no. 49 of the paper Law
constitution, it is requested to ignore the same.
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Part --- C Answers
•
•
•
ners. An
••
•
•
•
1.A person was arrested in Nalgonda town at 12:00 pm on Monday in
connection with a murder case. However he was produced before the v
metropolitan magistrate city criminal courts, Hyderabad only on Wednesday at
01:00 pm. What fundamental rights of the arrested person have been violated in
the instant case? Explain.
Ans: Facts of the case:
1. A person was arrested in a murder case in Nalgonda town at 12:00 PM on
Monday
2. But he was produced before the v metropolitan magistrate city criminal courts,
Hyderabad only on Wednesday at 01:00 pm.
3. What fundamental rights of the arrested person have been Violated?
Issues in the case:
1. Whether he really committed the murder?
2. Why did the police not produce the person in court within 24 hours of the
arrest?
3. Is any of his fundamental right violated?
Principle: In law, there is a principle of "Presumption of innocence till he has
proven guilty" it requires a person arrested to be treated with humanity, dignity
and respectfully till his guilt is proved. In a free society like ours, law is quite
careful towards one's "personal liberty" and doesn't permit the detention of any
person without legal sanction.
Arrested person have right not to be detained for more than 24hrs, without being
presented before magistrate, it is to prevent unlawful and illegal arrests. This right
is a fundamental right under Article 22 of Indian constitution and supported under
section 57 and 76 of CrPC.
Hence in the given case the police unlawfully detained the person nearly 25 hours
depriving his personal liberty and his fundamental right under article21 Right to
life is violated.
2•. The family details of a government employee were asked under the right to
information Act 2005 by a citizen. The public authority rejected the same on the
ground of privacy. The citizen is aggrieved by such rejection. Can he seek any
legal remedy? Decide .
.Ans:Facts of the case:
1. A citizen asked a government employee's family details under the right to
information Act 2005.
2. The public authority rejected the same on the ground of privacy.
3. The citizen is aggrieved by such rejection.
Issues of the case:
1. Can any citizen ask other person's family details?
2. Is there such provision in the Information Act 2005?
JB SERIES
LAW OF CONSTiTUTjOj~
3. Is the rejection of Public Authority is right?
4. Is the citizen's grievance justifiable?
Principle: Under Section 8 (1) J of the RTI Act, there is no obligation on the
information officer to give personal information to others which would cause
unwarranted invasion on the privacy of the individual.
Several judgments tell us that who can and who cannot access your
information. While a son or daughter who naturally inherits his/her father's wealth,
land or other possessions, do not inherit his position for obtaining information.
Unless the public information officer sees a 'larger public interest' in disclosure
such information. it cannot be revealed 'even to the deceased's wife, husband or
children unless they hold a power of attorney specifically to a right to access
information.
Judgement: Hence in the given case the citizen cannot seek any remedy and even
he seeks he will not succeed.
3. A linguist minority group applied for a permission to establish an educational
institution the competent authority rejected the same on the ground that only
religious minorities are eligible for such concession. Is such rejection valid?
Ans: Facts of the case:
1. A linguist minority group applied for a permission to establish an educational
institution.
2. The competent authority rejected the same on a certain ground.
3. The ground is that only religious minorities are eligible for such concession.
Issues of the case:
1. Can the Competent authority reject the permission of a linguist minority
application to establish an educational institution?
2. Is the ground for rejection valid?
Principle:
Under article 30(1) religious and linguistic minorities have been put at par.
Therefore, the unit for determining a linguistic minority would be the same in
relation to a religious minority.
Article 30(1) is a sort of guarantee or assurance to the linguistic and
religious minority institutions of their right to establish and administer
institutions of their choice.
Judgement: Hence in the given case as per Article 30( 1) the Competent
cannot reject the permission of a linguist minority group to establish an
educational institution.
So the competent authority's rejection is not valid.
seen \.;1
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5. A Fr~
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A university student found that number of visitors to the university have
secn smoking in the premises. On what grounds can he seek prohibition of
smoking in the campus?
ADS: Facts of the case:
1. A University student found that number of visitors to the university have
been smoking in the premises.
2. He wanted to seek prohibition of smoking on the campus.
Issues of the case:
1. Is it correct to smoke in the University premises?
2. Can the student seek prohibition of smoking on the campus'!
3. On what grounds he can seek prohibition of smoking in the campus?
Principle:
In recognition of environmental tobacco smoke health risks. the University
intends to provide a smoke free environment for its faculty, staff students. and
visitors.
REGULATIONS
A. Smoking is prohibited in all University buildings, grounds. and Universityowned vehicles, as they are considered as the property of the University
B. Smoking in privately-owned vehicles and on sidewalks adjacent to public
thorough fares is not prohibited.
C. The sale of tobacco products is prohibited in all University buildings, and
grounds.
Judgement: Yes, on the above mentioned grounds the student in the given case
can seek prohibition of smoking in the campus.
cilional
t.ly
ii
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5. A French national came to India in 1942 and continued to reside in India on
the strength of a residential permit issued by the government from time to time.
When he was asked to leave in India in 1962, he claimed that he acquired Indian
citizenship by domicile, having resided continuously in India for the last 20th
years, decide?
Ans: Facts of the case:
1. A French national came to India in 1942 and continued to reside in India
2. He resided in India with a residential permit issued by the government from
time to time.
3. when he was asked to leave in India in 1962 , he claimed that he acquired Indian
citizenship by domicile, having resided continuously in India for the last
20years.
•
•
~.
Issues of the case:
Whether the French national can become a citizen of India?
1. Can he acquire citizenship by domicile?
JB SERIES
61
LAW UI- LUN::,III U IIUN
Principle:
Domicile is an essential requirement for acquiring Indian Citizenship. Domicile
means a permanent home or place where a person resides for a long duration of
time.
Domicile can be categorized into two • By Birth.
• By Choice.
To be entitled to Citizenship by Domicile there are three conditions which
need to be fulfilled1. He must have been born in territory of India.
2. Either of his parents must have been born in territory of India.
3. He must have been ordinarily residing in India for not less than live years
immediately preceding the commencement of constitution.
Judgements:
In the given case
only one of the three
above
mentioned
conditions is fulfilled to acquire citizenship by domicile and not all the three
conditions. Hence he cannot be considered as an Indian citizen and he has to leave
India.
6. Prakash
was accused of committing an offence. During interrogation
he
denied all the allegation made against him. The police want to conduct a lie
detector test against his willingness. Can they conduct such a test?
Ans: Facts of the case:
1. Prakash was accused \>1' committing an offence.
2. During interrogation he denied all the allegation made against him.
3. Police want to conduct a lie detector test against his willingness.
Issues of the case:
1.ean the police conduct lie detector test to Prakash against his willingness?
2. Can the Police force him to be a witness against himself
Principle : Yes, these tests are legal in India. However, the consent of the accused
is mandatory to perform the test.
• In the year 2010, in Selvi&Orsvs State of Karnataka &Anr case, the Apex
Court ruled that no lie detector tests should be administered without the
consent of the accused
• The court further stated that the individual undergoing the test must have
access to a lawyer.
• Before test on the subject performing, his/her consent must be recorded
before a judicial magistrate.
• .An accused cannot be forced to be a witness against himself.
•
In D.K. Basu vs. State of West Bengal case in 1997, the Supreme Court
India involuntary administration of these tests will lead to cruel, inhuman
~
Judg
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7. The
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2.
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62
I AW OF rON<;TITIITIOl\1
degrading treatment in the context of Article 21 or the Right to Life and
Liberty.
Judgement: Based on the above conditions laid by the court in several
judgements, in the given case also police cannot conduct lie detector test as the
accused Prakash has not given his consent for the test.
•
7. The state of Dakhinanchal enacted law to prohibit forced or induced
conversions from one religion to other in that state The law was challenged on
the ground that it deprives the followers of a religion their right to freedom of
religion which implicitly includes the right of conversion. Decide?
Ans: Facts of the case:
.
1. The state of Dakshinanchal enacted law to prohibit forced or induced
conversions from one religion to other in that state.
2. The law was challenged on the ground that it deprives the followers of a
religion their right to freedom of religion which implicitly includes the right of
conversion.
Issues of the case:
1. In a secular country
like India the state of Daskhinanchal enacted law to
prohibit forced or induced conversions from one religion to other?
2. Can such an act be challenged on the ground that it deprives the followers of a
religion their right to freedom of religion which implicitly includes the right of
conversion.
Principle: Odisha was the first state to enact anti-conversion legislation,
the Orissa Freedom of Religion Act,1967. Section 3 of that Act stipulates that
"no person shall convert or attempt to convert, either directly or otherwise, any
person from one religious faith to another by the use of force or by inducement or
by any fraudulent means nor shall any person abet any such conversion. "Similar
provisions appear in all current anti-conversion laws
In 1973, the High Court of Orissa declared that the Orissa Freedom of
Religion Act, 1967 is "ultra vires the Constitution." The Court held in its
conclusions that article 25(1) of the Constitution "guarantees propagation of
religion and conversion is a part of the Christian religion," that "the term
'inducement' is vague and many proselytizing activities may be covered by the
definition and the restriction in Article 25( 1) cannot be said to cover the wide
definition," and that the state legislature lacked the competence or jurisdiction to
make the law in question on the topic of "religion" under the Seventh Schedule of
the Constitution. However, this decision was overturned by the Supreme Court of
India in Rev. Stain islaus v. State of Madhya Pradesh,
Judgement: Based on the Supreme court judgement I can say that the law cannot
be challenged because in a secular country no one should be converted to other
religion with force or inducement.
JB SERIES
63
LAW 01- LU[\I:, III U i IUN
8. A private citizen wanted to hoist national flag atop his building everyday
this was objected by the police. He claimed that he has every right to fly the
national flag atop his building as his fundamental duty to respect it . Decide.
Ans: Facts of the case:
1. A private citizen wanted to hoist national flag atop his building every day,
2. This was objected by the police, ,
3. He claimed that he has every right to fly the national flag atop his building
4. He felt that it is fundamental duty to respect it.
Issues in the case
1. Can a private person hoist national flag atop his building every day?
2 , Has the right to fly the flag atop his house?
Principle: Supreme Court decision has made it legal for any citizen to tly the
National Flag. The rules to be followed are mentioned in the Flag Code ofIndia.
Even though it's our right to tly the flag. Below rules are to be followed.
• When flown over public buildings the national flag should be flown from
sunrise to sunset.
• The flag should always be hoisted at a brisk pace and lowered slowly.
• Display of a damaged or a disheveled flag is also an offence. The national flag
should not be dipped on any occasion.
• It cannot be tom, damaged, burnt, or disrespected in any manner. The disposal
of a flag should be done as a whole, in private, preferably by burning. Etc.
Judgement: In the given case police cannot object the citizen from flying flag
atop his house. Butone must avoid doing it in private building since it is not
always practical to follow the code daily by individuals.
9. A person was arrested by the police but he was not produced
magistrate within 24 hours .advice him.
before the
'-'
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ADS: Same answer like the 1st problem'
10. A person who migrated to India from Pakistan, after 18 July, 1948 such a
person citizen of India or Dot -decide.
Ans: Facts of the case:
1. A person migrated to India from Pakistan after 18 July, 1948.
2. You have to decide such a person citizen of India or not.
Issues in the case :
1. There is no clarity in date of his migration to India from Pakistan .
2. Whether the person will be considered as Indian citizen or not?
Principle: Article 6 provides citizenship rights to migrants from Pakistan befo~
commencement of constitution. A person, who migrated from Pakistan to India
before 19 July 1948 shall be considered a citizen of India, provided either of the
person's parents or any of his grandparents were born in India as stated in the
Government of India act, 1935 and has been residing since the date of .
12. T~
withi\_;
Decide.
An\_,
1. Tht
2. ~
3. Xl)'
Iss~
I\:.
Princ
the\..,
the ci
'-'
India
inh~
LAW OF CONSTITUTIOl~
i~
••
For personls migrated after 19 July 1948, the person should be registered as a
citizen ofIndia by an officer from the Government of India, but for registration the
subjected person has to be a resident of India for at least six months, at the date of
his application
Judgement: In the given case it is not given clearly about his descent ( parents and
grandparents information) and the date of his migration i.e., after 18th means it
doesn't mean that it is beforel9th.it may he on any date after 19th also. So he
cannot be as a citizen of India .
II. A state Government passed law pertaining to implementation of directive
lnciples of state policy. Failure to implement directive principles of state
policy under such law can be enforced by a court of law or not. Decide.
Ans: Facts of the case:
I. The state government passed a law.
2. That law is pertaining to implementation of DPSP.
3. You have to decide whether such failure is enforceable or not.
Issues of the Case:
Are directive principles of state policy under such law can be enforced by a
court of law or not.
Article 37 states that the provisions given under Part IV of the Constitution cannot
be enforced in the Court of law, Non-enforceability of these articles in the Court
does not make them useless.
These principles have an educative value and also help the nation to maintain
its "welfare state" status. which has been guaranteed by the Constitution. These
principles also help the judiciary to interpret different statutes and also the
Fundamental Rights.
Judgement .No in the given case, failure to implement the directive principles of
state policy under such law cannot be enforced by a court of law.
12. The High Court directs the state government to enact a uniform civil code
within a period of 6 months. Is such direction binding on the state government?
Decide.
Ans: Facts of the case:
1.The High Court directs the state government to enact a uniform civil code.
2. The HC directs to enact UCC within a period of 6 months.
3. You have to decide such direction binding on the state government or not.
Issues of the case :
Is such direction of High Court binding on the state government?
Principle: 'Uniform Civil Code' is explicitly mentioned in Part IV, Article 44 of
the Indian Constitution. Article 44 says, "The State shall endeavor to secure for
the citizens a uniform civil code throughout the territory of India."
A uniform civil code here refers to a single law, applicable to all citizens of
India in their personal matters such as marriage, divorce, custody, adoption and
inheritance.
JB SERIES
\....
65
Judgement:
However, Article 37 of the Constitution
DPSP "shall not be enforceable
by any court".
"fundamental in the governance of the country". This
constitution itself believes that a Uniform Civil Code
some manner, it does not make this implementation
direction to implement UCC in the state is not binding
LAW Uf- LUN~ III U IIUili
itself makes it clear the
Nevertheless,
they are
indicates that although OUr
should be implemented in
mandatory.
So Such
as it is not mandatory.
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13. A child of 15 years was found working as a domestic servant in a house.
a Y"~I
What are the grounds on which the employer could be prosecuted against.
J~:
Discuss?
P,-,(
Ans: Facts of the case.
case
I.A child of 15 years was found working as a domestic servant in a house.
2.You have to decide on what grounds the employer could be prosecuted.
'-"
15. Chi
Issues of the case:
and \.A
1. Can a child of 15 years work as a domestic servant in a house?
of chile
2. On what grounds the employer could be prosecuted?
Principle:
As per the, The Child Labour (Prohibition and Regulation) Amendment Act, 2016
1.""t
14- and 15-year-old children are allowed to work, but there are limits to the kinds
2., ~
of jobs they can have, and the hours they can work.
vi~
During the working days of school, their hours are limited to three hours.
IsV
a day and 18 hours per week. With one hour rest after four hours work. On
1.We
when there's no school and in the summer, working hours can increase to 8
NV
day and 40 hours per week. But 14 and 15-year-olds can only work in
2. C,
kinds of jobs.
vi~
For example: They can be employed in house hold or domestic works,
shops, teaching and tutoring jobs or delivery jobs, and more. They cannot do
jobs that are considered hazardous.
Prim
Judgement:
According to new amended child Labour Act a child of 15 years
oc~
allowed to work in certain job which are not hazardous. So in the given
that E
child of 15 is working as a servant in house which is not hazardous.
chi\rt
Hence the owner of house or employer is not liable for prosecution.
'-'
Ar~:
c~
.woe
14. A Hindu challenged the permission granted to a Muslim under Islam to
marry more than one wife on the ground of violation of right to equality?
Decide by reference to relevant case law?
Ans: Facts off the case:
A Hindu challenged the permission granted to a Muslim under Islam to marry
more than one wife on the ground of violation of right to equality.
~~~~
Ju<\_.
.' Naval
\.,.,
Ani
~
Issues in the case:
Can a Hindu man marry another woman by converting to Islam?
•
I AW OF rON<:;TITIITION
,e.
iAt.
•
•
•
•
Principle : The second marriage after the conversion to any other religion
allowing bigamy is not valid. However, the Hindu Marriage Act, 1955 has not
specified the status of a person marrying after conversion. It declares subsequent
marriage between two Hindus is void if their partner is living and they have not
divorced at that time. This issue was scrutinized by the Supreme Court at length in
the landmark case of SarlaMudgal&Ors. vs. Union of India and it settled the
ambiguity surrounding the rights, duties and obligations of people who change
religion to defeat the law. The court held that a change of religion does not permit
a person to defeat the provisions of law and to commit bigamy.
Judgement: The Supreme Court held that a change of religion does not permit a
person to defeat the provisions of law and to commit bigamy. Hence in the given
case the Ilindu will succeed in his challenge.
15.Children below the age of 14 years were employed in Navakasi. An activist
.and lawyer initiated and invoked supreme court to the gross violation of rights
of children? Discuss.
Ans: Facts of the case:
1. Children below the age of 14 years were employed in Navakasi.
2. An activist and lawyer initiated and invoked supreme court to the gross
violation of rights of children.
Issues of the Case:
1.Were the children allowed to work below the age of 14 years employed in
Navakasi?
2. Can an activist and lawyer initiate and invoke Supreme Court to the gross
violation of rights of children?
. Child Labour (Prohibition and Regulation) Amendment Act, 2016
Principle :The act has completely banned employment of children below 14 in all
occupations and enterprises, except those run by his or her own family, provided
that education does not hampered. The 1986 act prohibited the employment of
children under 14 years in certain occupations like bidi-making, mines, domestic
work, power looms, automobile workshops, carpet weaving etc.
Despite several legislative measures by the enactment of statutory
provisions to diminish the employment of kids in hazardous employment, we have
not been that successful in prohibiting child labour.
Judgement: Yes, Children below 14 years of age cannot be employed in
Navakasi as it is hazardous work and it is the gross violation of rights of children.
6. An international
airport authority was set up under statute of parliament
airport authority conferred powers over appointment and termination of
employees .can airport be called as state decide.
Ans: Facts of the case:
1. An international airport authority was set up under statute of parliament.
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LAW OF CONSf iTUTION
2. The airport authority conferred powers over appointment and termination of its
cmployees.
Issues of the case:
I. When an international airport authority was set up under
the statute of
parliament, can it be called as state?
Principle: "The State" includes the Government and Parliament of India and the
Legislature of each of the States and all local or other authorities within the
territory of India or under the control of the Government of India.
The Supreme Court concluded International Airport Authorities undoubtedly an
instrumentality or agency of the Central Government and falls within the
definition of 'State'. The Court went on to conclude that just as Government acting
through its officers, is subject to constitutional and public law limitations,
similarly Government acting through agency is subject to equal restri
Therefore, the International Airport Authority of India is subject to the limiting
restricting provisions of the Constitution and other public laws,
Judgement:
Based on the above principle, Airport can be called as state.
17. A magistrate issues an order authorizing
the investigating
officer to
specimen handwriting
and finger
prints of Mr X an accused against
willingness. X challenges the order stating that it violates his fundamental
under Art 20 (3).
Ans: Facts of the case:
1. A magistrate issues an order authorizing the investigating officer to take
specimen handwriting and finger prints of Mr X.
2. Mr.X is an accused.
3. The magistrate ordered to take the specimen handwriting and finger prints
Mr X against his Willingness .
4. X challenges the order stating that it violates his fundamental right under Art
(3).
Issues 0 the case:
1. Can A magistrate issue an order authorizing the investing
specimen handwriting and finger prints of Mr X an accused
Willingness ?
2. Does the X succeed in his challenge?
3. Does the order violate his fundamental right under Art 20 (3 ) ?
Principle:
The Delhi High Court ruled that the fingerprints or
handwriting of an accused taken by an Investigating Officer during probe
case was admissible as evidence even though a permission from am'
not taken.
And also in some other cases the court said that the 10 was wellhis right to ask an accused to record his sample handwriting or fingerprints
the absence of an approval from a magistrate will not vitiate its evidentiary
Judgement: In the given case X will not succeed in his challenge because
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(I 0) investigation officer has that right to takefingerprints and specimen
handwriting of an accused without accused person's consent. So here X's
fundamental right under Art 20 (3) is not violated .
The passport authorities have refused to issue the passport to A a citizen of
to go abroad. Can the authorities are complied to issue the passport?
e.
: Facts of the case:
1. The passport authorities have refused to issue the passport to A a citizen of India
. to go abroad.
2. ,Can the authorities are complied to issue the passport'!
Issues of the case:
1. Why did the passport authorities refuse to issue the passport to A a citizen of
India to go abroad?
Can the authorities are complied to issue the passport.
Principle: Suhject to the other provisions of this Act the passport authority shall
.refuse to issue a passport for visiting any foreign country under clause (c) of subsection (2) of section 5 on anyone or more of the following grounds, if
• He is not a citizen of India;
His departure from India may, or is likely to, be detrimental to the security of
India
• His presence outside India may, or is likely to, prejudice the friendly relations
ofIndia with any foreign country;
He has, at any time during the period of five years immediately preceding the
date of his application, been convicted by a court in India for any offence
involving moral turpitude and sentenced in respect thereof to imprisonment for
not less than two years;
That in the opinion of the Central Government the issue of a passport or travel
to the applicant will not be in the public interest etc.
'
l,uu~~ement
: In the given case the though the applicant is a citizen of India
1'""--'''4<>"" of anyone
of the above grounds the Passport authorities might have
to issue him the passport.
A, was wrongfully detained by law enforcement authority and did not
before the judicta] magistrate within 24 hours. what remedy is
to Mr. A.
the answer of 1st question.
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20. The parliament
in exercise of its constitutional
power amended
the
constitution and deleted the right to property from Part-III fundamental
rights,
A citizen challenged the validity of the amendment on the ground that it effected
the basic structure of the constitution.
Will he succeed?
Ans: Facts of the case:
1. The parliament amended the constitution and deleted the right to property from
Part-III fundamental rights.
2. A citizen challenged the validity of the amendment on the ground that it effected
the basic structure of the constitution.
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Issues of the case:
1. Is the 0111 ission of right to property from fundamental rights by 44th
amendment valid?
2. Did it not effect the basic structure of the constitution?
Principle:
Indian Parl iarnent enacted 44th Amendment Act .1978 .It brought about a
significant change
as it resulted in the deletion of right to property as
fundamental right and provided for its reincarnation (new version) as art 300-A
recognize it as a legal right.
The scope of Art 300-A was determined by the Supreme Court .
JilubhaiNanbhaiKhachar
v. State Of Gujarat and it was held that right
property does not form the basic structure of the Constitution.
Judgement:
Based on the above judgement of the Supreme Court the right.
property does not form the basic structure of the Constitution.
So in the given case the citizen cannot challenge the validity of the
on the ground that it effected the basic structure of the constitution.
21. A complains that an officer of the state is preventing
him without
authority of law to practice his profession. Has he a right to move the su
court of India directly.
Ans: Facts of the case:
1. A complains that an officer of the state is preventing him without the
of law to practice his profession.
.
2. You have to decide whether has he a right to move the supreme court of
directly.
Issues of the case:
1. Can an officer of the state prevent A without the authority of law to nn1'LL"
profession?
2. Has he right to move the Supreme Court directly?
Principle :Article 19 (1) (g) of the Indian Constitution guarantees to all
the right to practice any profession, or to carry on any occupation,
business. However, this right is not absolute, and it is subject to
restriction.
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Judgement: In Rashid Ahmed vs. The Municipal Board, Kirana, the Supreme
Court had occasion to discuss: in detail the scope of the rights guaranteed under
the clause regarding the freedom of profession Rashid Ahmed was carrying. on
wholesale business in fruits and vegetables in one of the bazars of Kairana, a town
in Uttar Pradesh and held Rashid Ahmed' fundamental rights have been infringed
and he is entitled to have his grievance redressed ..
Based on the above _judgementof Supreme Court I can say that A has right
to move the Supreme Court directly for redressal.
f,ted
22. X a convict for life, wrote a book on current political affairs and wants to
it published through his wife. He sought the permission of jail authorities to
send the manuscript out of the jail to his wife. Permission was refused. Advice
X. Ans: Facts of the case:
1. X is a convict for life.
2. He wrote a book on current political affairs and wants to get it published
through his wife.
3. He sought the permission of jail authorities to send the manuscript out of the
jail to his wife.
4. Jail authorities refused his permission.
Issues of the case:
1. Why did the jail authorities refuse his permission?
2. Is it notinfringement of the personal liberty of Mr. X in derogation of the law
under which he was detained?
This case is identical to the case Maharashtra vs. PrabhakarPandurang.
In this case respondent was detained by the Government of Maharashtra under
30(1) (b) of the Defence of India Rules, 1962.. While so detained the respondent
> wrote a book of scientific interest and sought permission from The State
..Government to send it out of jail for publication. The request was rejected.
Thereafter he filed a writ petition under Art. 226 of the Constitution praying
a direction to the State Government to permit him to send out the manuscript
Publication. The High Court held that the book was in no way prejudicial to the
•.•
defence of India etc., and allowed the petition.
.
.,The State Government by special leave appealed to Supreme Court. The apex
'..court held that there is no condition in the Bombay Conditions of Detention
1951, prohibiting a prisoner from writing a book or sending it for
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m and also held that the State of Maharashtra infringed the personal
of the f Respondent in derogation of the law under which he was detained.
Based on the above judgement. I advise X to file a writ petition in
concerned High Court under Art. 226 of the Constitution praying for a
to the State Government to permit him to send out the manuscript for
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LAW Of- Cui~')i IiUTiON
23. The supreme court directed the central government to enact a uniform civil
code within a period of 6 months .is such direction binding on the government
decide.
Ans: Refer the answer of 12th question of same type.
24. A political party gave a bandh call. It was challenged by two citizens
belonging to Kerala chamber of commerce as illegal on the ground that it
deprives other citizens from enjoying their fundamental rights. Advice.
Ans: Facts 0 the case:
1. A political party gave a bandh call .
2. It was challenged by two citizens belonging to Kerala chamber of commerce as
illegal.
'
3. They challenged on the ground that it deprives other citizens from enjoying
their fundamental rights.
Issues of the case :
1. Is a bandh call by any political party illegal?
2. Does a bandh call deprive other citizens from enjoying their fundamental
rights?
The given case is identical to ShreyaSinghaJ vs. Union of India.
Facts of the case: In the year 2012, two girls were arrested by the
police. The arrest was made for expressing their displeasure at a bandh which
called in by the members of Shiv Sena people in Maharashtra for -the incident.•.
Shiv Sena chiefBalThackery's death.
The accusation made against the petitioners was that they
involved in posting their comments on the Facebook and liking the comment at
same time. It resulted in widespread public protest. The petitioners by the
Public Interest, filed the writ petition under Article-32 of the Constitution
that section 66A of IT Act 2000 violates the right of freedom of speech
expression of an individual.
Judgement: The court ordered 66A as violative of right to freedom of
and expression and is not covered under the grounds of reasonable
given under Article 19(2).
Based on the above judgement in the given case also the bandh
illegal and it deprives other citizens from enjoying their fundamental
the they will succeed in their challenge.
25. A cinema actress professing Sikh religion obtained a passport on a
identity of a Muslim lady and arrived in a European country .On the
.
arriving with a fake identity The European government prosecuted her.
ground of obtaining a fake passport can she be prosecuted in India once
is the constitutional guarantee under articles 20(2) applicable to her?
Ans: Facts of the Case:
1.A cinema actress professing Sikh religion obtained a passport on fake i
of a Muslim woman.
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2. The actress went European country with that fake passport.
3. The European government prosecuted her for the same.
4. You have to decide whether
a. She will be prosecuted in India again.
b. The constitutional guarantee under articles 20(2) applicable to her or not.
Issues of the case:
1. Can anyone obtain a passport with fake identity?
2. Will she be prosecuted in India again?
3. Is the constitutional guarantee under articles 20(2) applicable to her'!
This case is identical to Monica Bedi v State of Andhra Pradesh
Principle: This is the case is identical to the case of Monica Bedi vs State of
Andhra Pradesh.
The doctrine of Double jeopardy has been conceptualized in the Constitution of
India under Article 20(2) which provides that no person shall be prosecuted and
punished for the same offence more than once.
Monica Bedi v State of Andhra Pradeshr"
In this case the Apex Court ruled that a passport enrolled on fictitious name
amounted to a double jeopardy as a Portuguese court too had earlier convicted her
for owning forged passport
Judgement: Based on the above case the given case also will amount to double
jeopardy if Indian government prosecutes her again because already European
government prosecuted her .
Yes the constitutional guarantee under articles 20(2) applicable to her.
26. A Devasthanam Board appointed a person not belonging to priestly class
as pujari in the Hindu temple. The appointment was challenged by a person
--...._--... to priestly class on the ground that it is against the traditions of
n. Decide .
.. A Devasthanam Board appointed a person as pujari.
That person is not belonging to priestly class as pujari in the Hindu temple.
The appointment was challenged by a person belonging to priestly class.
He challenged on the ground that it is against the traditions of religion.
in the case:
Can such person who does not belong to priestly class as pujari in the
Hindu temple?
Ie: The Supreme Court of India held that only authorized Pujaris can
the actual worship of the deity.
court also upheld the amendment and observed that as long as the actual
. ofthe deity is allowed to be performed only by authorized Pujari's i.e
belonging to the correct denomination and not by those who did not have
necessary traini
no grievance can be made. So the takeaway from this
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judgment is that, Any person who has got training irrespective of caste or creed
can be appointed as a priest. The appointment of a priest is a secular function. The
court upheld that but it reads this clause in it because the Aghamas have held that
in the Shaivite temple a vaishnavite by faith should not be the Archaka i.e The
actual denomination in a denominational temple the priest must belong to that
denomination and he must he well-versed and trained in The Agamas. So the state
can appoint a priest irrespective of caste but keeping in mind the requirements of
that denominational Temple that a person who is appointed as an Archaka should
at least be a part of that denomination.
. Judgement:
As per the above supreme Court Judgement
appoint made by Devasthanarn is valid.
in the given case the
27. A temple in the public domain restricted the entry of women citing
certain ancient scriptures. Is such restrictions on the entry valid? Discuss.
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They cited certain ancient scriptures for such restrictions.
Issues in the case:
• Are such restrictions
valid?
Principle: CJI Dipak Misra, speaking on behalf of Khanwilkar J & hi
observed that religion is a way of life intrinsically linked to the dignity of
individual and patriarchal practices based on exclusion of one gender in fa
another could not be allowed to infringe upon the fundamental freedom to
and profess one's religion.
He stated that the exclusion of women between the ages of 10-50
practiced by the Sabarimala Temple denuded women of their freedom of
guaranteed under Article 25( 1).
He also held that the exclusion of women between ages 10-50 by
Sabarimala Temple cannot be an essential religious practice. He held
the Ayyappans are Hindus, the practice of excluding women cannot be held
an essential religious practice. Justice Nariman delivered a concurring opini
Article 25( 1) protects the fundamental right of women between the ages of
years to enter the Sabarimala Temple and exercise their freedom of
He stated that there was sufficient material to conclude that the exclu
women from Sabarimala violated Article 25(1).
Judgement:
Based
on the opinions and statements of Chief
Nariman 's we can say that in the given case restrictions imposed by the
not valid because they are unconstitutional and infringing the fundamental
of the citizens.
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LAW OF CON5T!TUT!Or!
28. Refugees from Srilanka came to India and want to settle .They filed a writ
in the Supreme court of India that they have a right to settle in India. Decide.
Facts of the case:
• Refugees from Srilanka came to India.
• And they wanted to settle in India.
• .They filed a writ in the Supreme court of India that they have a right to settle
in India.
.ould
•
Issues in the case:
• Did Sri Lankan refugees have a right to settle in India?
Principle: On paper, Dharmalingarns
or Nagalakshmis, even if they are Sri
Lankan citizens, can acquire Indian citizenship through two options - registration
or naturalization after fulfilling the eligibility criteria laid down in the Citizenship
Act, 1955.
Why India is not giving citizenship for Sri Lankan Tamils?
The MDMK leader said many European nations had given citizenship to Sri
Lankan Tamils. It could be given on the basis of place of birth, marriage, being a
resident of a country for more than 20 years. But it was being denied to the Sri
Lankan Tamils claiming that they came her illegal.
Judgement: Based on above principle it is very clear that Srilankans came here
illegal. So, they are not entitled to Indian Citizenship. Hence they have no right to .
settle in India.
29. Articles 14, 20, 21 and 22 guaranteed by the fundamental rights of Indian
constitution to the citizens of India are suspended by the President of India
during the National emergency. A person wants to challenge in the Supreme
...Court. Advice.
-Facts of the case:
• Articles 14,20,21 and 22 guaranteed by the fundamental rights ofIndian
constitution to the citizens of India.
.• They are suspended by the President of India during the National emergency.
• A person wants to challenge in the Supreme Court.
>Issues in the case:
.•• Will the person succeed in his challenge?
..Principle: During the period of Emergency as declared the state is empowered to
: suspend fundamental rights (which is given to every citizen) guaranteed under
..Art.19- of the Constitution.
Further the Constitution empowers the President. to suspend the right to
any court of law for the enforcement of any of the fundamental rights except
under Article 20 and Article 21. It means that virtually the whole chapter on
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LAW Of-lUN~111 U IIUN
fundamental rights except Articles 20 & 21 can be suspended during the operation
of emergency. i.e., Articles 20 and 21 cannot be suspended A.
In the given case the person who wants to challenge in the Supreme COUrt
regarding the suspension of Articles can challenge only for suspension of 20 and
21 but nor 14 and 22 Articles.
Judgement : Based on the above principle it is very clear that only
Articles 20 and 21 are exempted from suspension but not all articles. But in the
given case the person who wants to challenge in the Supreme Court regarding the
suspension of Articles can challenge only for suspension of 20 and 2 J hut nor
14 and 22 Articles during the National emergency.
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LAW OF TORTS
-LLB 3 YDC I SEMISTER
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PAPER IV - LAW OF TORTS _
CONTENTS
PART - A QUESTIONS
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2
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1. Res ipsa loquitur
v
2. Write a short note on Motive.
u
3. Write a short note on Malice.
4. Defence of Sovereign Immunity.
5. What is Joint Liability?
6. Explain the doctrine of Acquiescence.
7.
8.
9.
10.
11.
12.
13.
Wavier
What is Accord and Satisfaction?
Write a short note on Release.
Write a short note on Assault.
Write a briefnote on Battery.
Write about False imprisonment.
What is Malicious Prosecution?
14. What is Nervous Shock?
15.
16.
17.
18.
19.
20.
21.
22.
Trespass to land.
Nuisance.
Defamation
Passing off
Conspiracy.
Judicial and Extra-judicial Remedies.
Remoteness of Damages.
Describe the kinds of injunctions.
23. Define Action personalize moritur cum persona. Maxim.
24. Consumer.
25. What are the Rights of Consumers?
26. Doctrine of Strict Liability.
27. Doctrine of Absolute liability.
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LAW OF TORTS
PART - B QUESTIONS
28.
What is a Tort and write its essential elements.
29. What are the General Principles of Liability in Torts?
30. Write in detail about fault.
31. Define Intention. Explain in detail.
32. Describe the Kinds of Damages in torts.
33. -What are the general defences to an action in tort?
34.
State's Vicarious Liability tor the t011s perpetrated by its employees.
Explain in detail.
35. What are the Salient features of the Consumer Protection Act. 1986'1
36. Write in detail about Occupiers liability.
37. What is Extinction ofliability
/ Discharge of tort?
38. Write a short note on negligence.
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Law of Torts
Part-A
Answers
1. Res ipsa loquitur
ADs. Res ipsa loquitur is a Latin phrase that means "the thing speaks lor itself'.
considered to be a type of circumstantial evidence which permits the co
determine that the negligence of the defendant led to an unusual event
subsequently caused injury to the plaintiff Although generally the duty to p
the defendant acted negligently lies upon the plaintiff but through res ipsa loq
the plaintiff presents certain circumstantial facts, it becomes the burden
defendant to prove that he was not negligent.
Case law: Byrne vs Boadle
This doctrine arose out of the case of Byrne vs Boadle(J 863)
The plaintiff was walking by a warehouse on the road and suffered injuries lrorn
falling barrel of flour which rolled out of a window from the second tloor. At th
trial, the plaintiff's attorney argued that the facts spoke for themselves and
demonstrated the warehouse's negligence since no other explanation could ac
for the cause of the plaintiff's injuries.
Thus the following are the three essential requirements for the application 0
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• The thing causing the damage must be under the control of the de
his servants
• The accident must be such as would not have happened in the ordinary
things without negligence.
• There must be no evidence of the actual cause of the accident.
Defenses available in a suit for negligence
~ Contributory negligence by the plaintiff: Contributory negligence
when the immediate cause of the damage is the negligence of the
himself, the plaintiff cannot sue the defendant for damages. It is based
maxim volenti non fit iniuria which states that if someone willingly
themselves in a position which might result in harm, they are not
claim for damages caused by such harm.
The burden of proving contributory negligence rests on the defendant in
instance and in the absence of such evidence, the plaintiff is not bound to
its non-existence
• In the case of Shelton Vs L & W Railway(J 946) , while the plaintiff was
a railway line, a servant of the railway company who was in charge of
shouted a warning to him. Due to the plaintiff being deaf, he was unable
In th\;
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LA'v"j Of TORTS
the warning and was consequently injured. The court held that this amounted to
contributory negligence by him.
Write a short note on Motive.
Ans. A motive is a person's state of mind that inspires him to do an act. It usually
meansthe purpose of the act's commission. Motive is the ultimate object with which
anact is done, while the immediate purpose is the intention.
However, motive is not relevant and essential for a tort action to be
. maintained. A wrongful act does not become legal just because the motive is good .
. Similarly, due to an improper, evil motive or malice, a lawful act does not become
wrongful.
Case law: Bradford Corporation v. Pickles
The decisions of Lord Halsbury and Lord Watson in Bradford Corporation v.
Pickles and Allen V. Flood may be treated as one of the earliest decisions that settled
that motive is irrelevant
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•
•
Facts of the case:
The plaintiffs owned land below which were water springs used to supply
water to Bradford town for more than 40 years. The defendant owned land over the
plaintiffs on a higher level. There was a natural reservoir under the defendant's land
and water flowed from that reservoir down to the springs of the plaintiffs. The
defendant, however, sank a shaft into his land to alter water flow. This significantly
reduced the amount of water flowing into the springs of the plaintiffs. There was
sufficient proof to suggest that the defendant was following this course of action, not
to give himself any immediate advantage, but merely to deprive the plaintiffs of
water. The plaintiffs insisted that this was malicious and that they had the right to an
injunction to stop the defendant from acting in this way .
The court judgement:
Lord Halsbury L.C.: It's not a case where the state of mind of the person
doing the act can affect the right to do it. If it was a lawful act, however ill the
motive might be, he had a right to do it.
The courts held in some cases that it is to be seen if the act is lawful, then the
motive for the act is oflittle significance.
To conclude, we could say that a good motive is not to justify illegal acts, and a bad
motive does not make an otherwise legal act wrong.
Exceptions to this Rule:
• In the case of deceit, malicious prosecution, injurious falsehood and defamation,
where the defence of fair comment or privilege is available. The defence of
qualified privilege shall be accessible only if it has been published in good faith.
• In case of conspiracy, interference with the trade or contractual relations.
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govern
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such a:
judg~f
In cases of nuisance, causing personal discomfort by an unlawful motive may
turn an otherwise lawful act into nuisance.
3. Write a short note on Malice.
SUp\;~
Ans.
Malice means ill-will in the popular sense. When an act is done with bad
intention, it is called Malice. An act or statement becomes malicious if used for
purposes other than those sanctioned by the law authority.
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In the legal sense, it means' intentional wrongdoing, without a just cause. Ii
emphasizes here that this wonderful act docs not become lawful merely because the instrl".I'~1
an
motive is good. Similarly, a lawful act does not become wrongful because
also~;
improper, bad or evil motive or malice.
and V
Exceptions to the Rule
ambass:
may\.;
In the following cases, malice becomes relevant in determining tortious liability:
or
•
When the act is with wrongful intention and unlawful
circumstances of the case.
can be gathered from the
In Balak Glass Emporium v. United India Insurance Co. Ltd., in a multistoreyed building, the water from the upper story, under the control of the defendant
escaped to the lower floor, occupied by the plaintiff There was evidence of ill will
between the plaintiff and the defendant. It was evidence of ill will between the
plaintiff and the defendant. It was found that not only the tap of the upper floor was
left fully open, but the outlet of the tank was also closed.
There was only one inference (conclusion) that the said act was done by the
defendant, with the wrongful intention, and hence, the plaintiff was held entitled to
get damages for the same.
Conclusion: By "mental elements", we mean a person's 'intention'
to harm
person by infringing his or her legal rights. The underlying principle is
wrongdoer cannot escape liability under the law of tort, simply because he has
intention of causing harm. However, in some cases, an offender may not be
liable (e.g., qualified privileges).
4. Defence of Sovereign Immunity.
Ans. The sovereign immunity refers to the fact that the government cannot be sued'
without its consent. Sovereign immunity protects sovereign states and their state
officers and agencies. section 86 of the Code of Civil Procedure 1908 (CPC),
provides that no suit may be instituted against foreign states in India, except with
prior written consent of the government;
India has adopted a restricted concept of sovereign immunity. Pursuant
Code of Civil Procedure
of India, foreign states and their organs
instrumentalities
can be sued with the prior written consent of the
government. However, such consent may not be required where the
T
to th~
~~~~
appliu
that are
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5.
Ans. 10
debt <\_.,
share th:
of: '-'
• In I.
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dam.
•
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shan
• M~
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awardAt
insolvent
Criticis~
• As~
thee
LAW OF TORTS
••
!it
I.:ae.
~~f
•
it'
.he
t'
governed by a special law (for, eg, the Carriage by Air Act 1972, Consumer
Protection Act 1986) or where the legal proceedings are not in the nature of a suit,
such as an industrial dispute under the Industrial Disputes Act 1947. In its 2011
judgment in Ethiopian Airlines v Ganesh NarainSaboo (Ethiopian Airlines), the
Supreme Court of India reiterated the consistent view in India that the doctrine of
sovereign immunity in India was not absolute. and that foreign states do not have
immunity from judicial proceedings in cases involving their commercial and trading
activities and contractual obligations undertaken by them in India.
In addition to foreign states (including their organs, departments,
instrumentalities), per section 86(4) of the Cf'C, the immunity under section 86 is
also available to rulers, ambassadors, envoys. high commissioners of foreign states.
and any such member of the staff of the foreign state, or the staff or retinue of the
ambassador or envoy or the high commissioner of a foreign state, as the government
may specify.
Thus, the privilege of sovereign immunity in India extends to matters relating
to the pcr lorrnance of sovereign functions of foreign states and excludes matters
pertaining to commercial or contractual transactions undertaken by foreign states
and their instrumentalities in India. Further, the protection of section 86, Cl'C is
applicable only in relation to suits proper and does not extend to legal proceedings
that are not in the nature of suits or which are governed by special statutes.
5. What is Joint Liability?
ADs. Joint liability denotes the obligation of two or more partners to pay back a
debt or be responsible for satisfying a liability. A joint liability allows parties to
share the risks associated with taking on debt and to protect themselves in the event
of:
• In law, joint and several liability makes all parties in a suit responsible for
damages up to the entire amount awarded.
• That is, if one party is unable to pay, the others named must pay more than their
share.
• More commonly, comparative fault laws limit an individual's payment to a
proportion based on the extent of their fault.
The affected party may sue anyone or all of them, and collect the total damages
awarded by a court from any or all of them. If all of the parties involved are
insolvent and uninsured, the plaintiff collects! gets nothing.
Criticism of Joint and Several Liability:
• As noted, joint and several liability tends to benefit the plaintiff, as it increases
the chances that all of the damages awarded can be collected.
JB SERIES
7
•
On the other hand, it may be considered unfair to a party who bears only a
minor responsibility for an adverse event to bear an outsized financial loss
because of it.
6. Explain the doctrine of Acquiescence.
ADs. Acquiescence is a relinquishment (loosing) ofright.-It is a mixed q--vLIUli
bet and law and therefore cannot be raised for the first time in appeal
In law. acquiescence occurs when a person knowingly stands by (silent) wi
raising any objection to the infringement of his or her rights, while
unknowingly and without malice acts in a manner inconsistent with their rights.
Example: If your neighbour builds a fence two feet into your property, you pro
have a legal obligation to raise an objection and tell your neighbour to
fence. and correct the problem. If you do not do so, under the law, you
deemed to have acquiesced/ accepted to your neighbour's land grab, whether
neighbour acted intentionally or not, and your neighbour may one day
legal owner of this land through the doctrine of boundary by acquiescence.
As a result of acquiescence, the person whose rights are infringed may
ability to make a legal claim against the infringer, or may be unable to
an injunction against continued infringement. The doctrine infers a
"permission" that results from silence or passiveness over an extended
time.
7. Wavier.
ADS.The another method of discharge of tort is by the waiver. The
waiver is when a person has more than one remedy available to him, as a
has to elect one of them. He cannot apply for both the remedies except in the
defamation and assault.
Illustration:
If A files a case against B that B has committed a tort against A. If A has right
more than one remedy he has to choose anyone of them, i.e. if he has the
both tort and contract law, now he has to choose one between them.
The main two principles lying in the doctrine of Waiver are:
I. The person has to choose anyone remedy.
2. If the person fails to get the remedy he chooses, the court of law does not
him to go back to an alternative remedy.
Illustration: If A files a case against Z and has two remedies for which
approach the court of law. If he chooses the first remedy and loses the
cannot approach to the court for the alternate remedy i.e., remedy number
2. The Waiver can be implied or Express
i
•
LAW Uf- IUKI~
8
'.•
In Express waiver, the person expressly communicates about his choice in the court
oflaw.
)SS
Illustration: If A files a case and he has the remedy in both, contract as well as Tort.
When the court asks him he has to communicate his choice to the court.
•
In the Implied form of waiver, the person impliedly communicates about his choice
for which remedy he is applying.
Illustration: I f A has two remedies available to him like one under contract and one
under Tort. if he applies for Contract, it becomes clear. he elects the remedy under
the contract.
8. What is Accord and Satisfaction?
ADs: Concept or accord means when the parties of the tort i.e. the person who
commits the tort and the person against whom the tort has been committed, come to
..an agreement and settle the dispute. Such an agreement is known as Accord. In
general term. it means settling the issue by accepting some consideration in lieu of
the right of action.
<
Satisfaction means the actual payment of consideration agreed by both, the
person who commits a tort and the one against whom the tort committed.
When both the accord and satisfaction once completed. it results in the discharge of
tort and the dispute does not proceed in a court of law.
tion: If A dies due to injury caused by B's car. If A's family comes to an
"ag):ee1ne11t
that B will pay Rs. 1,50,000 as compensation to them, that's the situation
Accord. When they received the actual payment of 1,50,000 Rs. from B, that's the
''''~''.&aU·VI of Satisfaction. So, by settling the issue and accepting some consideration
'8 family lost their right of action and the act of tort discharged.
only condition in the concept of Accord and Satisfaction is the consent of the
should be free and not from fraud, coercion or undue influence.
tion: If A, a son of a successful businessman brutally hit one of his servant
trespass to the body and if A tries to make his servant enter into accord by using
type of undue influence on him. Due to that influence, the servant gave his
this is not considered as free consent and the accord and satisfaction are not
,...·
.....
·"HL.
,.Write a short note on Release.
A Release means giving up the right to the action. It means when a person by
own choice discharged the tort. This right is only provided to the person against
the wrong has been done but not by tort feasor.
: Situation 1: A is the person against whom B does any act of Tort and if
his free consent wants to release B from the liability, he can do so.
JB SERIES
'-'
1 ----~
9
.Lv
LAW OF TORTS
Situation 2: A is the person against whom Band C both commit an act of tort and A
by his choice release B from the liability, this does not mean that C is also released
from his liability.
'-"
Remecil
1. '-tt
c::In
The release should be voluntary and given by free consent from the injured person.
If the consent is taken by coercion, undue influence. or any other unlawful means
then that release should not be counted as a release and the tort is not discharged.
2.
Illustration: I f a person is a police inspector. commits an act of tort against ana
person. By using his position and by threat. take the consent of the injured person
and release himself from the liability, that release is not a valid release.
3.
~
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una
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10. Write a short note on Assault.
the Sup
Ans. In common law, assault is a tort. Assault is the attempt to commit battery. An Con~~
act of the defendant which causes to the plaintiff reasonable apprehension of the batt\.i
infliction of a hattery on him.
II. \.I
Example: The pointing of loaded gun to another is an assault. Even the pistol is not
loaded, then also it may be an assault. If a person advances the manner of Ans. 1
threatening to use force, then there is assault. This was decided in the case cons~t
withQ
of Stephens v. Myers.
as tresp
Elements of Assault:
1.
V
• An act or conduct intended to create fear: The defendants' behaviour must be
motivated to create a situation of fear or danger in the victim's (Plaintiffs) mind. ~rit
lOVO
• A reasonable apprehension: Further, the victim must reasonably believe that the
defendant's conduct will harm or humiliate him.
• Of imminent harm: The victim's fear must be a direct response to a threat that is
imminent. In addition, there must be some kind of physical threat to the victim.
Thus, the pretence of kicking or punching the victim may be an attack, an
attempt to spit on the victim also will come under assault. (aggressive
behaviour).
All of the above e~ements must be present and the evidence must be supported
the attack.
Legal defences on charges of Assault. They are:
1. Self-defence: In this the defendant should only use the amount of force
appropriate in the situation and in proportion to the force being used
them.
2. Intoxication: Intoxication can be a legal defence, especially in cases
intoxication affects a person's ability to act intentionally.
3. Coercion: If the defendant was forced to attack under threat of harm
4. Lack of proof / proof: If the elements of proof are not found or supported
the correct evidence, it can serve as a legal defence.
Civi~
victim(
Esse~~
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•
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LAW OF TORTS
1. Action for damages- Whenever the plaintiff has been wrongfully detained, he
can always bring an action to claim damages.
•
on.
means
ft.
,
•
•
•
;!.An
of the
•
,t.
) mind
2. Selfhelp- This is the remedy which is available to a person who while he is still
under detention instead of waiting for legal action and procuring his release
thereby.
3. Habeas Corpus- It is speedier remedy for procuring the release of a person who
is wrongfully detained. Such a writ may be issued either hy the Supreme Court
under Article 32 or by a High Court under Article 226 of Indian Constitution.
In the case of Rudal Shah v. State of Bihar and Bhim Singh v State ofJ&K,
the Supreme Court granted such compensation in writs of habeas corpus.
Conclusion :Assault is an attempted offense, the law is intended to prevent possible
battery by punishing conduct that comes in a dangerous way to obtain battery.
11. Write a brief note on Battery.
Ans. The battery is
consent. In the battery.
without the consent of
as trespass to a person.
1. Criminal Battery
intentional touching another person without the person's
It is only considered when there is an actual physical contact
the person to harm the person. The battery is often considered
so it is divided into two types:
2. Civil Battery
Criminal Battery: In a criminal battery, intention plays a major role as the action
involves intention to kill a person.
laAe
Civil Battery: In the civil battery the intention to hurt someone is not present, so the
victim can lodge a complaint against the wrongdoer under civil court.
that is
Essentials of Battery
•ian.
•:e'l
for
•••
tfiatIS
aenst
_ere
•~Aith
• Intention: The intentions for both civil battery and criminal battery are different.
Criminal intent to cause the injury is not necessary but the intention to cause the
act which harms the person is required as it results in the battery.
• Contact: It is not necessary that the contact must be physical by individual.
battery doesn't need body-to-body contact.
· Example: A mixes knowingly something harmful in the food of B. If
that, that will he considered as A has committed battery against B
The
Beats
• Harm: The victim must have suffered in any manner but the harm can be
minimum, severe damages are not required. Unwanted sexual contact or
uncomfortable touching without the consent also comes under battery as it harms
the person physically, emotionally, and mentally.
• No Consent :The victim must not know about the action which is planned by the
accused
JB SERIES
11
12
LAW OF TORTS
For example, when surgeons
cons ide red as a battery.
-\.;
steal organs from patients to sell them will be
• No Lawful Justification: The complainant has to prove that the force used by the
accused was unlawful and was not justifiable.
For example: A and B were walking side by side. suddenly B started fighting
with A, in this situation B is liable for battery.
Defences
•
•
•
•
•
•
•C~
go
VI
•
PI.
~
for defenda nt:
Self Defense: In this case, the defendant must prove that he did not provoke the
other person and there was absolutely no other way to save himself
• Defence
of Others: In this defence the defendant tries to save another individual,
.
not himself.
•
• Tq
Pla(;i
the co
de~(
Defenc
Va~.I
Defence of Property: In cases of disputes over personal property. the owner can
use force to take his property back.
Remedies
CoV
the pre!
Prolv
Legal Remedies: Legal remedies are also known as damages. which are given Remedi
by the defendant to the plaintiff to compensate for the injuries, pain, or the
Acti~)
sufferings given by the defendant.
the
Restitutionary Remedies: These remedies include:
Nomina
Restitutionary Damages:
that \,;1
false an
Replevin.
Puni~
Ejectment
certain c
Property Lien
U'
•
Equitable Remedies: These remedies include:
• Temporary Restraining Order
• Temporary or Permanent Injunction
Conclusion: In the case of battery, physical contact is very important but
need body to body contact. is The contact must damage the person in any
way and the act must not be justified by the law.
12. Write about
False imprisonment.
Ans. False imprisonment
is the confinement of a person without any
justification. It violates the fundamental rights of an individual. In this
defendant deprives the plaintiffs liberty and imposes his authority on him
violation of Article 21 of our Constitution.
Essentials of false imprisonment:
Duration of confinement: For example if an arrested person who has not
produced before a magistrate within 24 hours of his arrest by the police can
police liable for wrongful confinement.
Habe"M
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13. """'~
c
An~.
agamst ;
reaso1\.,.:
prosecute
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• PrV
dama
de,-,
In the c=s
'the m~
••
WTS_
12~
___
I.ill be
• Intention: An intention
false imprisonment.
Ay the
• Eg: A and B are workers, and A is unaware about the fact that B is still in the
godown, locks him inside the godown. He will be held liable for false
imprisonment.
whether it is malicious or not
LAW OF TORTS
is immaterial in case of
• Place of confinement: Ir any place is used in order to confine a person for a short
or long period, it will amount to false imprisonment.
Plaintiff's knowledge: It is immaterial whether the plaintiff has the knowledge of
the confinement or the restrictions imposed by the defendant which completely
deprived him of his liberty.
Defences of false imprisonment
ValidArrest: Ifa person was detained due to lawful arrest or due to arrest under law.
Consent to arrest: If the person who consents to be restrained or con fined without
the presence of fraud or coercion but voluntarily.
Probable Cause: When probable cause is established by the action.
Remedies:
•
•
•
.
Actionfor loss: The defendant is liable for all (losses) consequences resulting from
the false arrest.
Nominal and compensator}' damages: The plaintiff is entitled to recover an amount
that would be just nominal and equitable Damages to compensate for an action of
false arrest or false imprisonment.
exemplary and aggravated losses: Exemplary damage may be provided in
circumstances when power is misused by the state .
~r.P'rt~lln
'
.TUllnPI'J(,
corpus: This writ is considered an effective remedy for immediate release
wrongful detention.
What is Malicious Prosecution?
When a person files a civil lawsuit, or a prosecutor brings criminal charges
an individual without good cause, maliciously, or for an inappropriate
the defendant may turn around and file a civil lawsuit against the plaintiff or
for malicious prosecution, seeking damages.
elements
of Malicious Prosecution:
Prosecution by the defendant: The plaintiff is required to prove in a suit for
damages for malicious prosecution that he (plaintiff) was prosecuted by the
defendant.
the case of KhagendraNath v. Jacob Chandra, the Court held that merely bringing
matter before the executive authority did not amount to prosecution and,
fore, the action for malicious prosecution could not be maintained. It is also to
noted that departmental enquiry by disciplinary authority cannot be called
JB SERIES
13
14
LAW OF TORTS
~
Com
• Absence of reasonable and probable cause: In a suit for damages for malicious
prosecution, the plaintiff has also required to prove that the defendant prosecuted
him without reasonable and probable cause.
•
S~5
cn1\.
s~
Termination of proceedings in the favour of the plaintiff: In a suit for damages
for malicious prosecution. it is essential to show that the proceedings complained
are terminated in favour of the plaintiff.
Ir\w
the \'
l~
• Plaintiff suffered damage as a result of the prosecution: The plainti ff is required
to prove that he suffered damage as a result of the prosecution.
Grounds to claim damages:•
•
•
A\_,.
with
E~
pee
Damage to the pIainti ff s reputation,
Damage to the plaintiffs person,
Damage to the plaintiff's property.
Elem
Ava
CONCLUSION: It can be said that the malicious proceedings are that proceedings
which are initiated with malicious intent. However, on the basis the facts and
circumstances, the Court should decide whether the suit is filed maliciously or not.
•
T
•'-1.\.11
14. What is Nervous Shock?
fr
p~
It is
la~
Ans. Nervous shock is a mental! psychiatric illness caused to a person because of an
intentional or negligent act of another. This injury can be caused i f the victim either
sees an accident or merely hears it.
Eg: A as part of a friendly prank tells B that her husband has died in an accident;
however listening to such news B goes into a state of shock and then is hospitalized.
Here, though A did not intentionally do the wrong, however, it is natural on part ofB
to be shocked; and hence A will be liable towards B.
Essential elements to claim damages for Nervous Shock
Forseabibility Test:
rec
Eg:
J
R",
floor
haV
The p
an~
In the case of Page vs. Smith it was explained that
•
In
\aie
• Where there is reasonable foreseability of a physical damage to be caused;
• Even in absence of foreseability of psychiatric damage, The victim/ claimant is
eligible to claim for such damage.'
r:,
V
In
Case law: Lucknow Development Authority vs. M K Gupta:
In India, in the case of Lucknow Development Authority vs. M K Gupta; the court
has ordered payment of compensation for harassment and mental agony endured
(caused) by the plaintiff due to failure of the authorities to deliver the flat within the
promised course of time.
It is to be noted that, in India there have not been any codified laws that relate to the
wrongs under the law of torts. Further cases of nervous shock have been dealt with
under the Specific Relief Act that is usually covered for the contracts or the
sc
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Dark
Th~
contrn
the \."
~
'-'
Consumer Protection Act. Further in 1987, the Mental Health Act has been enacted
so as to cover the rules regarding the persons who suffer from mental illness.
CONCLUSION: Therefore there is a growing need to have legislation to govern
such civil wrongs; not only for India, must even the international community look
intothe development of universally consistent laws because of globalization around
theworld.
•
••
•
•
•
15. Trespass to land.
Ans. Trespass to land can generally be defined as immediate physical interference
withthe possession of land without the. legal authority to do so.
Ez:
on a fence, or throws rubbish to another
~ It is a trespass to land if a person sits
,
person's land.
Elementsof Trespass to Land
A plaintiff can file a prima facie case for trespass to land by showing that:
• To the plaintiff's real property
• The defendant did it intentionally
• He/She caused an intrusion, either by entry onto or failure to leave or remove
from,
Plaintiff's Real Property
It is important to understand that the plaintiff does not need to be the owner of the
land in question. The plaintiff needs only be the possessor of the land. A person
renting a house can sue for trespass to land,
Eg: If a multi-story warehouse converted into full-floor loft apartments. Suppose
Ram is the tenant-lessee of the third-floor loft, and Shyam is the tenant of the fourthfloor loft. If Ram ventures up to the fourth-floor loft without Ram's permission, Ram
has committed a trespass.
The property interest in a plot of land extends down into the subsurface of the Earth
and upward into the sky.
• Intent: There need not to be an intent to trespass, just an intent to affect the
action that constitutes the trespass.
Eg: Suppose the defendant intends to place a small wire-and-plastic marking flag
in the defendant's ground. This constitutes a trespass to land. The intent
requirement is satisfied.
Entry: An "entry" does not become the trespass of the plaintiff's property.
However, it becomes trespass if he fixes anything on the land etc beyond the
scope of permission.
Failure to Leave or Remove: Eg: A guest who refuses to leave when asked is
also will be considered as committed a trespass.
Damages for Trespass to Land:
The plaintiff may seek damages, or an injunction, or both. If the trespass is
continuing, an owner or tenant has a right to compensation for the injury caused by
thetrespass.
JB SERIES
15
-----
LAW OF TORTS
Depending on the nature of the trespass the plaintiff can claim the following:,
10
I. Loss of market value
\JI
2. Costs of restoration
3. Loss of use of the property
• T
4. Physical injury to the person or the land etc.
K~~
Injunction: An injunction is usually the most effective way to stop repeated
trespassing .. After the issuance of an injunction, If the trespassing continues, the
police will enforce the injunction. and the complainant may file for contempt of
court.
«>
Dame:E.~s
P"-.,i
Conclusion: Trespass to land occurs where an individual directly enters upon
another's land without permission. or remains upon the land, or places or fixes any
object upon the land.
16. Nuisance.
Ans. The word nuisance has been derived from the French word 'nuire ' which means,
to hurt or to annoy. But for the purpose of the law of tort, it may be described as
unlawful interference with a person's use or enjoyment of land or of some right over.
\.I
Cone]
or\_."
17\..£
Kinds of Nuisance
1. Public Nuisance
2. Private Nuisance
Public Nuisance: A public nuisance is an unreasonable,
interference with a right common to the general public.
unwarranted,
or unlawful
Thus acts which seriously interfere with the health, safety, comfort or
convenience of the public generally or which tend to degrade public morals have
always been considered a public nuisance.
AIr.
anM
is I:"J
m~J
1.'-"
In
2.'-13.~1
Examples:
4. Tl
•
Obstructing a public way by digging a trench.
•
Carrying on trade which causes an offensive smell.
5.'-rl
6.~]
Essentials of Public Nuisance
Def=r
•
A person must have done an act or an illegal omission
•
Such an act or omission must cause any common injury,
•
Danger or annoyance to the public
Sla\.(
abollt
•
To the people in general who dwell or occupy the property in the vicinity.
Eg:'rf
1. ~l
Private Nuisance: A nuisance interferes with the right of a specific person or entity,
The remedy in an action for private nuisance is a civil action for damages of all
injunction or both
A~
The Elements of a Private Nuisance suit to be proved by a Plaintiff:
Slat;
-~---~-
_. ----
Libel
als&.;
•
•
---•
••
LAWui- luk I::>
• The plaintiff is the owner of the land or has the right to possess it
• The defendant literally acted in a way that interferes with the plaintiff's
enjoyment and use of his or her property
• The defendant's interference was substantial and uncooperative.
Kindsof Private Nuisance
1. Damage to property
Damage to Property: Nuisances of this manufacturing works, chains,
E.g.smoke. fumes, gas, noise, water, filth. trees or animals.
Physical Discomfort: Nuisances of this class may arise from
etc.
• Watching Tvin high volume.
• Noisy and crowded parties.
• Renovation works et cetera.
• Carrying any trade causing nuisance.
• Obstruction oflight.
Conclusion: The remedy in an action for private nuisance is a civil action for damages
or an injunction or both.
17. Defamation
.0
ADs. Defamation is the oral or written communication of a false statement about
another that unjustly harms their reputation and usually constitutes a tort. A person
is liable for the defamation of another. In order to prove defamation, the plaintiff
Someone made an untrue statement ;about the
integrity of another person
2. The statement was published;
3. The statement caused the concerned person injury
4. The statement was false;
reputation, honesty
or
.5. The statement did not fall into a privileged category .
6.. The concerned person suffers damages as a result of the statement.
may be in two forms. They are:
. Slander
2. Libel
lander: It is a form of defamation that consists of making false oral
a person which would damage that person's reputation .
.If A spreads a rumour that his neighbour B has been in jail which is
can be held liable for slander.
1:Defamation which occurs by written statements is known as libel.
result from a picture or visual representation. Truth is an absolute
or libel.
statements
is not true,
Libel may
defence to
JB SERIES
17
-~
LAW OF TORTS
Rem,
Some statements, while libellous or slanderous, are absolutely privileged in the
sense that the statements can be made without fear of a lawsuit for slander.
T~(
The best example is a statement made in a court of law. An untrue statement made
by a witness about a person in court which damages that person's reputation will
generally not cause liability to the witness as far as slander is concerned.
•
However, if the statement is untrue. and the person knows the statement is
untrue. the crime ofperjury may have he en committed.
Ira communication is made in good faith on a subject that the communicating
party has a legitimate right or interest in making the communication,
such a
communication could be exempt from slander liability due,to a qualified privileged.
The media also enjoys a qualified privilege tor stories that turn out to be false
as long as the information was released without malice (i.e., without intent to harm)
and a retraction or correction is made when the matter is brought to the attention of
the publishing party.
Sl
• \.fe
P\,)I
For e
.~
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•
v(
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18. Passing off
Co\)
Ans. If a person sells his goods as the goods of another" then the trademark owner
passes
can take action as this becomes a case or passing off Passing off is used to protect or
safeguard the goodwill attached to an unregistered trademark.
mi~1
finane
Passing off through deception, was a kind of unfair trade or actionable unfair
trade through the means of which a person obtains economic benefit of the
established reputation by another person.
'-'
Example: If someone advertises their fast food business as "the Rolls-Royce of chip
shops" they may well be infringing Rolls-Royce's trademarks but it is highly
unlikely a court would find that they were passing themselves off as connected to
Rolls-Royce in a business sense.
Elements to Establish a Cause of Action in Passing-Off
In order to successfully bring a claim for passing-off,
following three elements.
the plaintiff must establish the
•
•
Int
U
•
goodwill - you must prove that you own a 'reputation' in the mark that the publiC
associates with your specific product or service
damage - you must prove that the misrepresentation damaged or is likely to
damage your goodwill, or cause actual or foreseeable financial or reputational
los
EssL,t
r "
3. Damage
misrepresentation- you must show that the trader has caused confusion and
deceived or misled the customers into believing that their goods and services
actually yours
per~'
somet
unl~
.~
2. Misrepresentation
•
ADS. ]
wi
1. Reputation or Goodwill
•
19.':~
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are
2. \.;
3. 'U
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L'\'/J OF TORTS
Remediesfor passing off:
There are several remedies available. You can:
• apply for an injunction to prevent the business from using your trade mark or
goodwill
• apply to have the infringing goods destroyed
• sue for damages or seek account for lost profit
• request an inquiry to establish loss
Passing off defences:
For example. the defendant may argue that:
• the mark in question is not distinctive
• the mark is generic
• they have used carefully and honestly their own name
• you don't have goodwill in the mark
• you have given consent or encouraged the use of the mark
• you can't demonstrate damage or loss
Conclusion: Passing off happens when someone deliberately or unintentionally
passes off their goods or services as those belonging to another party. This action of
misrepresentation often damages the goodwill of a person or business, causing
financial or reputational damage.
•
19. Conspiracy.
Ans. Definition: "A Conspiracy is an unlawful association of two or more than two
persons, to do any act which is not legal according to the law of land or to do
something harmful towards another person or to carry out an act not in itself
unlawful, but by unlawful means".
Essential Elements for a tort of conspiracy:
• Intention:. For an act to become a tortious conspiracy, there must be a common
intention of all the people involved in the conspiracy to do an illegal act or an act
which is contrary to the law.
• Combination:. For an act to be considered as conspiracy, it is necessary that the
people working with the same intention must have agreed to that act mutually .
• Overt Act :Thus, for a conspiracy to be considered as a Civil Conspiracy, it is
necessary that one of the conspirators has acted in furtherance of the plan.
Types of Conspiracy Under Torts
1. General
2. Conspiracy to Injure
3. 'Unlawful Means' Conspiracy
JB SERIES
'M
_
-_
19
•
•
General: A general conspiracy is an unlawful/illegal association of two
than two persons which form an association with the intention of
others, then it would be considered as a general conspiracy.
For example, during an act by the actors, a certain group of people
hiss or start to boycott a particular actor, then, the intention or the purpose
act becomes relevant.
his/he:
Conspiracy
Ab~l
to Injure .In such type of conspiracy. the sole purpose
combination Of. the association is to injure someone.
An important legal case regarding this is the Quinn vs Leathem case.
This case laid down that, an association of two ormore people to injure
person with legal justification or excuse, by means of inducing his
customers to break contracts with him or not to deal with him is actionable.
Unlawful Means Conspiracy
This type of tort involves an agreement between two or more than two
Wherein. at least one of them agrees regarding using unlawful means
claimant.
Conclusion: Also, the major issue with the tort of conspiracy is that only a
people can be made liable under this but not an individual.
20. Judicial and Extra-judicial
Remedies.
Ans. Remedies in Tort Law are of2 types
1. Judicial Remedies: These are the remedies that the courts of law
aggrieved party.
2. Extra-Judicial Remedies: If the injured party takes the law in their
(albeit lawfully), the remedies are called extra-judicial remedies.
Judicial remedies in tort are of three main types
o Damages: Damages or legal damages is the amount of money
aggrieved party to bring them back to the position in which they were
tort had occurred.
o Injunction: Injunction is an equitable remedy in which the court,
compensating the aggrieved party, asks the other party to either to
something, or to do something positive so as to recover the
aggrieved party. It is known as injunction.
o Specific Restitution of Property: Restitution means the restoration of
to the owner of the goods. When a person is wrongfully
property or goods, he is entitled to the restoration of his property.
Extra-judicial Remedies in Tort
These are of five main types:
Re\_,J
pare
··.Distre:
lAW OF TORTS
2U
1. Expulsion of trespasser: A person can use a reasonable amount of force to expel a
trespasser from his property.
2. Re-entry on land: In this case, the owner of a property can remove the trespasser
and re-enter his property by using a reasonable amount of force.
a~to
8Pthe
~
of the
•
•i.
•
•
•
•
p,Jlties.
the
~roupof
d_to
.hand
3. Re-caption of goods: In this case, the owner of goods is entitled to recapture
his/her goods from any person whose unlawful possession they are in.
4. Abatement: In case of a nuisance, be it private or public. a person (the injured
party) can remove the object causing nuisance.
5. Distress Damage Feasant: Lastly, distress damage feasant. In this case, a person's
cattle/other beasts move to another's property and his crops are spoiled. The
owner of the property is entitled to take possession of the beasts until' he is
compensated for the loss suffered by him.
21. Remoteness of Damages.
Ans. The principle of Remoteness of Damages is relevant to such cases an event
constituting a wrong can constitute of single consequence or may constitute of
consequences i.e. series of acts/wrongs. The damage may be proximate or might be
remote, or too remote.
A few elaborations of cases to make it more clear.
1.
'A' threw a lighted squib into a crowd, it fell upon 'X'. In order to prevent injury to
himself, X did the same thing and it fell upon Y. Y in his tum did the same thing and it
then fell on B, as a result of which B lost one of his eyes. A was held liable to B. His
act was the proximate cause of damage even though his act was farthest from the
damage in so far as the acts X and Y had intervened in between.
•~e~:
•
nstead of
o_to
ge of the
•
•
•
•
Case law Scott v. Shepherd:
2. Haynes v. Harwood
The defendant's servants negligently left a horse van unattended in a crowded street.
The throwing of stones at the horses by a child, made them bolt and a policeman was
injured in an attempt to stop them with a view to rescuing the woman and children on
the road.
One of the defenses pleaded by the defendant was remoteness of consequences i.e. the
mischief of the child was the proximate cause and the negligence of the servants was a
remote cause.
3. General illustration
A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a
bicycle and breaks her finger, the bicycle man loses his balance and gets in front of a
fuel tanker, the tanker to save the man on the bicycle steers left but unfortunately hits
the railing to a river bridge and falls into it , the lock of the fuel tank breaks and the oil
spills into the river, the driver with the truck drowns.
JB SERIES
~~
,
"
,
'
•
~
21
In the above case:
• The girl being hit is the direct damage and it is the direct damage c
act of A
• The damage caused to the cyclist is proximately
and is remote to the act of A
caused by the falling
• The damage caused to the truck driver and the loss of material( fuel and
is remote to the act of A and proximate to the act of the cyclist. And
noted that the accountability to negligence is made on the assumpti
person is aware of the fact that rash driving can lead to fatalities.
expected and the actual results might not be the same).
Now, the starting point of any rule of the remoteness of damage is the fami .
a line must be drawn somewhere. It would be unacceptably harsh for every
to be responsible for all the consequences which he has caused.
Certainly, the question of where to draw the line on recover-ability of
losses cannot be answered by a mathematically precise formula. Judges have
discretion from time to time, and in that process, two formulas have been
• The test of reasonable foresight
• The test of directness
The Test of Reasonable Foresight:
If the consequences of a wrongful act could be foreseen by a reasonable
are not too remote. If on the other hand, a reasonable man could not have
consequences, then they are too remote. And, an individual shall be liable
consequences which are not too remote i.e. which could be foreseen.
The Test of Directness:
According to the test of directness, a person is liable for all the direct ..,v~~..."'.
his wrongful act, whether he could foresee them or not; because cons
directly follow a wrongful act are not too remote.
22. Describe the kinds of injunctions.
Ans. Injunctions involve the orders awarded by the courts which
restrain performance of a specific act in order to provide some effect
rights of the applicant. An injunction which prevents some sorts of acti
be prohibitive in nature while mandatory
injunctions are those in
defendant has performed omission to act or has infringed the rights of
Types of injunctions: there are three types of injunctions:
1. Temporary
2. Perpetual
3. Mandatory
~""
-_ -----"I'
•
•
•
•
•
1. Temporary injunction: In temporary injunction court orders prohibition of an act
by a party to lawsuit unless there has been a trial or other court action. Its
purpose is to maintain status quo and to prevent irreparable damage and third
function of such kind of injunction is to subject matter of that particular litigation
which is in process until the trial is over.
2. Perpetual injunction: Some injunctions may also require some specific period of
time in which that specific injunction is in force. A perpetual injunction is given
after a series of complete court sessions on its full merit. As merits within the
case are being discussed in the court and are made clear to establish relationships
between the two parties.
3. Mandatory injunctions:
They are of two kinds:
1. Mandatory restorative injunction
• Mandatory
restorative injunction: In this type of injunction defendant is
supposed to repair consequences of any wrongful act he has committed. In
order to regulate such kind of injunction plaintiff needs to prove where
wrongful act has not occurred but he was merely threatened.
II Mandatory enforcing injunction
• Mandatory
enforcing
injunction:
Compels the defendant to do some
positive act. It is unlikely that a mandatory enforcing injection will be granted
unless the remedy of specific performance is also available .
Define Action personalize moritur cum persona. Maxim.
.Ans. According to the maxim, actions of tort or contract are destroyed by the death
. of either the injured or the injuring party. Some legal causes of action can no longer
be brought after a person dies, in some cases, defamation. It has also been applied to
actions arising out of contracts of a purely personal nature, e.g., promise to marry. In
actions of tort, this was formerly a general rule, but recently its application has been
so generally narrowed that it probably affects only actions for libel.
However, besides the statutory exceptions mentioned, an action may be
brought by the personal representatives of a deceased person for an injury done to
his property in his lifetime. Compensation may, however, be recovered by the
relatives of a person negligently killed and in some cases of trespass.
.
The general rule of the common law was that if an injury was done either
.to the person or to the property of another, unliquidated damages only could be
in satisfaction. However, the action dies with the person to whom, or by
the wrong was done.
Aman commits battery on Raman. However, during the incident, if either party
dies, the right of action which was accrued to Raman by the reason of the battery is
taken away.
JB SERIES
23
LAW OF TORTS
But if Aman commits a battery upon Raman, or do other injuries to him, any right of
action which accrues to the third person will not be affected by the death of Raman,
so far as the application of the maxim in question is concerned.
The Bombay High Court in KhuzemabhaiSyedna vs ufaddalBurhanuddinSaifuddin ,
held that the maxim 'actiopersonalismoritur
cum persona' though part of English
Common Law has been subjected to criticism even in England. It has been dubbed
as an unjust maxim, proceedings depended on the temperament of the person
defamed.
'
24. Consumer ..
Ans. A person who 'buys a goods or service for his own personal use and not for further
manufacture is called a consumer. Consumers playa vital role in the economic
system of a capitalist economy. Without consumer demand, producers would lack
one of the key motivations to produce: to sell to consumers. The consumer also
forms part of the chain of distribution.
As consumers spend, economists presume that consumers benefit from the utility of
the consumer goods that they purchase, but businesses also benefit from increased
sales, revenue, and profit.
For example, if car sales are increasing, auto manufacturers will see a boost in
profits. Additionally, the companies that make the steel, tires, and accessories for
cars also see increased sales. In other words, spending by the consumer can benefit
the economy, and the business sector in particular. Some economists believe that
consumer spending leads to an increase in production and it increases the economic
growth.
Types of Consumers:
•
•
•
Discretionary
spending.
Spending Consumers.
Luxury Goods Consumer.
base needs, ...
Groups with high amounts of discretionary
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Luxury goods are items consumers purchase
Inferior Goods Consumer. Consumers with a low income purchase
inferior goods.
when
primarilY
'-'
'-'.
\.,
Conclusion: A consumer is an important participant in the market. In case of
exploitation, the rights of the consumer must be protected. There are six cons1Jl']1e1'
\_,
rights as mentioned in the regulatory Consumer Protection Act of 1986.
25. What are the Rights of Consumers?
2(.;
Ans
Ans. A consumer is an important participant in the market. In case of consumer
exploitation, the rights of the consumer must be protected.
~
There are six broad consumer rights defined as per the Consumer Protection Act, 1936.
These are:
rt\.,
the
belr
'-'
LAW Uf- IUKIS
to Safety: This right is a protection against goods and services that are
'hazardous
to
life
and
property'.
This
particularly
applies
to
medicines,pharmaceuticals, foodstuffs, and automobiles. The right requires all such
products of critical nature to life and property to be carefully tested and validated
being marketed to the consumer.
Right to Information: This right mentions the need for consumers to be informed
aboutthe quality and quantity and price of goods, being sold. They must also have
accessto other information spcci tic to the product that they wish to consume.
...
ht to Choose: The consumer must have the right to choose between different
at competitive prices where many sellers sell similar products. This is to
id monopoly in the market.
to Seek Redressal: When a consumer feels exploited, he/she has the right to
a consumer court to tile a complaint. A consumer court is a forum that hears
complaint and provides justice to the party that has been hurt.
to be Heard: This right gives him/her due respect that his/her complaint will be
heard. The right empowers consumers to fearlessly voice their concerns and seek
<,1-,,,,,,, in case they are exploited.
ht to Consumer Education
Consumers must be aware of their rights. Many consumers in India are not even
aware that they are protected by the Act. Unless they know, they cannot seek
justice when they are actually hurt or exploited.
redressal Mechanism
Consumer Forums
Consumer Courts
Consumer forums or consumer protection councils are organizations that help to
represent consumer interests. They guide consumers in the process of filing
complaints in the court when they are exploited and also help in spreading
consumer protection awareness .
.A consumer court is where the cases are actually presented and heard. It follows a
three-tier quasi-judicial system. District courts deal with cases up to 20 lakhs. A
state-level court deals with cases between 20 lakhs and 1 crore, while a national
consumer court deals with claims that exceed the value of 1 crore.
~
Doctrine of Strict Liability.
Strict liability concept emerged in the year 1868 after the famous case, Rylands
Fletcher. In this case the defendant has built a reservoir ignoring the fact that
it there is a disused mine shaft which will be destroyed due to making of a
;"........
,~..- and the same thing happened and all the water of the reservoir went into
plaintiffs mine. Due to this act plaintiff had to suffer huge loss as its whole mine
JB SERIES
25
LAW OF TORTS
was destr~yed so, he filed a case against the defendant. The defendant gave many
defences like he has taken proper measures. The court in its judgement said that the
making of the reservoir was itself an unnatural use of land also, the defendant was
dealing with dangerous thing so, the defendant is liable to pay compensation to the
plaintiff even if he takes proper care. This is the reason why this liability is also
known as Rylands or No fault liability
The essential features of Strict l.iability are:
DANGEROUS THINGS: It
and due to which any damage
compensation to other person lor
principle, dangerous thing means
electricity, explosive, etc.
means that if a person uses dangerous things
occurred, then that person is liable to pay
the damage caused to him. According to this
anything like large quantum of water, gas,
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ESCAPE:
Another essential of feature of Strict Liability is escape which states that all the
things which causes harm to another person if escape from the property of the
person using it and should not be in reach of the person then that person is liable
for any damages caused.
For example: if a person A has grown some dangerous plants which may cause
serious harm to any person or animal consuming it. Ifa person B's Sheep ate that
plant because some of them have been fallen in B's land so, in this case A is
responsible to compensate B for his loss but ifB's Sheep enters A's land and ate
that plant then A is not liable for the loss.
In the case of Read Vs. Lyons & Co. it was held that if there is no escape from
the property of the defendant then the defendant is not liable to compensate the
plaintiff for the loss caused to him.
D
NON- NATURAL USE :It means that if a stored water is used for a natural
use like domestic purpose then a person cannot be held liable for any harm
occurred due to it, but ifit is used for non- natural use like in the case ofRylands
Vs. Fletcher, the defendant used the land for making of reservoir to benefit its
mill and which created danger for others and due to which he was liable for the
loss occurred to the plaintiff.
EXCEPTIONS:
~
CO\.;
compe
V
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27.
Ans. :
sall\J
Liabilil
that\,
excepti
\..fJ
wit1;l
this COl
LialC
for the,
~
this fl'l~
Priva~
~~e~~
is lia(;
There are some exceptions of this concept which are:
exceptir
D
DEFAULT OF THE PLAINTIFF: According to this exception, it is
.
types\,
that if the defendant
takes all the reasonable care and the plaintiff due to h~s because
own fault suffers injury, then he himself is liable for the harm and defendant
conc~
free from any charge. In the case of Ponting Vs. Noakes same thing
was iIJ!r
established.
.
case kW
D
ACT OF GOD : It is another exception, which states that if the loss IS
occurred by the act of god that means by any natural calamities like
'-'
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(J
LAW OF TORTS
earthquake, etc. then nobody will be at fault because these things are beyond the
control of humans.
CONSENT OF PLAINTIFF :This exception is also known as Volenti Non
Fit Injuria. It says that if a person has the knowledge of the harm which could be
caused by during a particular act and still he did that act then he is liable for his
own act and not others.
ACT OF THE THIRD PARTY .According this, if harm is caused by an act
of stranger or third party and when there is no fault on the part of either the
plaintiff or defendant but due some act 0 f a stranger the loss occurs so in that
case, the defendant is not liable tor that act.
STATUTORY AUTHORITY' :The word 'statutory authority' means any
authority which governed by law and at the instructions of this authority a person
commits an act which led to damage to any person then that person who acted on
the instruction of the statutory authority will not be held liable because he
obligedto follow the demands of that authority.
elUSION: A strict Liability is the one in which defendant is liable to pay
, ,but he can take the defense of any of the exceptions .
. Doctrine of Absolute liability.
Strict Liability and Absolute Liability are two similar but different topics of
branch of law that is Law of Torts. Absolute Liability is wider than Strict
,.,.....,..... Both the types of law is based on No Fault Liability, but with a difference
is in Strict Liability there are certain exceptions and if a case comes under that
"..v,,"'......
,· then the defendant is not liable for the act.
This concept is similar to the Strict Liability, but is wider in scope and is
any exception which are there is the concept of Strict Liability. According to
concept, a person cannot take defences of the exception lead down in the Strict
. It says that if a person has damaged the property of another than it is liable
the act, he cannot escape from the liability.
This concept came in India after the M. C. Mehta Vs. Union of India case, in
case there was an industry named as Shri Ram Food & Fertilizers Industry
Limited Company in which Oleum Gas leaked due to which many people got
and some of them died. After this case Public Interest Litigation (PIL) was
to take action against this disaster. The Court in this case held that the industry
liableto a huge amount of compensation to the victims irrespective of the fact that
.
of Strict Liability should be taken into consideration while deciding this
of cases. After this case, the concept of absolute Liability was introduced
"""'lU:'\~in a country like India the concept of Strict Liability is not suitable so, the
of Absolute Liability emerged. Further, Public Liability Insurance Act, 1991
introduced so, that the victim should get faster relief as after this case another
knownas Bhopal Gas Tragedy case which followed the same concept.
JB SERIES
27
Conclusion: Absolute Liability is the one in which defendant is liable to
compensation, he cannot take the defense of any of the exceptions. This liability is'
more popular in India because of the Indian Industrial style and economy
Though it is England also but is not described properly there. The Lords of
told about this concept but as Strict Liability without exceptions. So, it can be
that both are same but different in it sel f
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---------------------LAW OF TORTS
i!O payis
Part -B Answers
What is a Tort and write its essential elements.
ia ility
·e tYpe.
Ans. In simple words, a tort is a civil wrong. When an act committed
by one person
harms another person or injures his/her legal rights, The person committing the tort is
known as the tort feasor.
f England
said
1I.e
•
•
•
•
•
•
•
•
•
In suits relating to torts, it is very essential for the injured party to show that
the harm or injury caused to him/her has a direct hearing to the cause.
Types of Torts
There are three types of torts
• Intentional tort
• Negligent tort
• Tort of strict liability.
• Intentional tort: If anyone commits or omits an act being fully aware that such
commission or omission will cause harm or inj ury to another person.
Examples of intentional tort: Trespass, libel, assault etc.
• Negligent tort: When, on account of the negligence of one person, another person
suffers some harm or injury, the first person is said to have committed a negligent
tort.
Eg: An accid~nt caused due to disobedience of traffic rules.
• Torts of strict liability: A person is deemed to be liable for a wrong regardless of
the question whether he/she had the intention to commit such wrong or not. The
case Law of Rylands v. Fletcher was an example relating to the tort of strict
liability.
,-,
.....
uU_"u
...
Elements of Tort:
There are four essential elements that are required to constitute a tort. They are:
'.
Existence of a duty of care: In order to bring a suit for a tort, it must be proved
that there existed a duty of care towards the injured party, which was breached
by the tortfeasor ( the person who committed wrong ). It is not necessary that the
injured party and the tort feasor have a direct connection for the duty of care to
exist, rather, the duty is imposed by operation oflaw.
Wrongful Commission or Omission of an Act :An act that is in violation of a law
can be suitably classified as a wrongful act. A wrongful act must also cause
actual harm or result in a legal injury to another person.
Actual Damage
or
Legal
Injury:
The
two
maxims, injuria sine
damno and damnum sine injuria, encapsulate the types of damage and/or injury
that fall under the scope of this constituent element of a tort.
JB SERIES
29
LAW OF TORTS
• The first maxim, injuria sine damno: It is literally translated as injury without
damage. An injury of this sort is considered as a tort and the injured party can
approach the courts for a remedy.
The most interesting example of this maxim is the case of Ashby v. White, wherein
White stopped Ashby from exercising his right to vote. Even though the candidate for
whom Ashby was to cast his vote won the election, the Court ruled that Ashby's legal
rights had been infringed upon as it was a legal injury without damage.
The second maxim, damnum sine injuria: It means damage without legal injury.
Here, while actual damage or loss is suffered by the party, there is no infringement of
legal rights. Thus, in the absence of a legal injury. the injured party has no claim
whatsoever.
Case law: In the Gloucester Grammar School case. the defendant set up a school next
to the plaintiff school. Students from the latter flocked to the new school, thus
causing severe monetary losses to the plaintiff The Court held that no suit could lie
here irrespective of the monetary damage as there was no legal right which was
violated by the defendant in setting up a school.
Remedies:
The law of torts also prescribes certain forms of legal remedies for injured parties,
such as damages, specific restitution of property and injunctions that are awarded by
the Courts. Before awarding any relief to the claimant, the Court examines certain
aspects of the liability by performing tests such as
• The test of directness
• Test of foreseability
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• The remoteness of damage suffered in order to judge.
For exa
Then~
Thus, the four essential elements of the law of torts duty of care , wrongful act,
\
injury, remedy together form a chain and if even one of the links in the chain mi ~'Wy_.
serva~
it would not constitute a tort.
his serv,
~ 29. What are the General Principles of Liability in Torts?
• V~
d8\.;o
vAns. Torts are basically civil wrongs which lead to civil damages. These are rights
may
which people generally have against the whole world. In order to enforce these
Forex~
the law recognizes certain principles of tort liability. Since the law of tort is
?is he~
codified, we need to rely on precedents (previous judgements) and jurisprudence
In this ca
understand these principles.
wentt~
Principles of Tort Liability: Although most principles of tort law originate
Strict Li
English common law, Indian courts have modified them to meet local
.
industr~
The following are some important tort law principles:
pUblic. Ti
ofinten~
~
LAW OF TORTS
• Damnum Sine Injuria :Damnum sine tnjurta IS a Latin legal maxim which
basically means damage without injury. It means an actual loss which occurs
without the infringement of any legal rights.
Thisis because the mere loss of money or money's worth does not amount to any tort.
In order to constitute some tort, real violation of some rights must take place in the
formof legal damage. No liability can arise in such cases.
For example: let's say a person has been owning a stationery shop on a street for
severalyears. If his business rival opens a bigger stationery shop nearby, this person
cannot sue him for his diminishing profits. This is because no legal injury occurs to
him.
• Injuria Sine Damno :In contrast with damnum sine injuria. the principle of injuria
sine damno means an infringement of rights without actual losses. Since this leads
to infringement of rights, liability can arise even if no person suffers actual or
substantial losses.
For example: Trespassing of property is a serious violation of a person's right to
protect his property. In such cases, the trespasser is liable to pay compensation
even if he causes no real damage.
• Principle of Vicarious Liability: The general rule of tort liability is that the person
who causes damage must pay compensation. In certain cases, however, liability
can arise on third parties also. The law refers to this vicarious liability.
. In order for vicarious liability to arise, there should be some legal relationship
•between the defendant and the third party. In other words, the law must be able to
attributeand extend liability to the third party.
Forexample: The law of partnership recognizes that partners are agents of each other.
Therefore,one partner can be liable for the defaults of another.
Vicarious liability can also arise in the course of employment due to the masterrelationship between employers and employees. Ie., Master will be liable for
. hisservant's acts.
.• Volenti Non-Fit Injuria: Sometimes it may so happen that a person may suffer
damages when he consents to some act. A person who understands the risks he
may incur while doing something and still does it cannot seek compensation.
example: Imagine that a spectator suffered injuries after a cricket ball hit him on
head. The spectator cannot claim compensation from the batsman or any organizer
this case. This is because the law presumes that he was aware of these risks and still
to watch the match.
Liability and Absolute Liability: These two principles levy liabilities on
~'-''''''LI' and business ventures when their commercial activities cause damages to the
They basically state that liability in some cases should arise even in the absence
intentionor negligence.
J8 SERIES
31
LAW OF TORTS
• Strict liability: The rule of a strict liability says that if a business's commercia]
}, activities harm somebody, it should compensate him. This liability will arise even
if it took all necessary precautions to prevent the damage. It also allows him to take
certain defences
For example: In Rylands v. Fletcher, water from a person's mill entered and
damaged his neighbour's mines. The court levied liability on the defendant even
though it was his contractor who was at fault and not him.
• Absolute liability: If the law imposes strict liability on a person, it also allows him
to take certain defences. For example, a defendant
occurred due to natural calamities beyond his control.
may say that the damage
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In absolute liability, however, he cannot take any defence whatsoever and has to
pay
compensation in all cases. This happens in cases of damages arising from.
hazardous activities. like the Bhopal Gas Disaster.
30. Write in detail about fault.
Ans. Definition: A negligent or intentional failure to act reasonably or according
law or duty: an act or omission giving rise to a criminal indictment or a civil
lawsuit.
Fault in Negligence: In Fault in Negligence to prove defendant's fault for liability :
the defendant must be in breach of a duty of care to the claimant. (case
Donoghue v Stevenson ). It means that the defendant must do something that
reasonable person would not do, or omit to do something that a reasonable
would do.
The fault, then, is a failure to take reasonable steps to prevent
harm to the person, that a reasonable man would foresee such risk.
anti
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Fault in Nuisance: If defendant has committed an actionable nuisance, then it
him from claiming that he took all reasonable precautions to prevent it. The
procedural difference between negligence and nuisance is that the claimant
have to prove that the defendant was at fault - court has to decide on that
regard to the reasonable user and remoteness considerations.
Fault in Defamation: The fault in defamation cases is simply the standard of
the person who made the defamatory statement used and is directly related
type of plaintiff To define that fault questions like: was it a mistake? Was'
intentionally? Was it done maliciously? - have to be answered. Public
require malicious statement; private figures require a mere negligence
""£'''--is false.
~.u..
Fault in Trespass: In trespass to person in Stanley Vs Powell 1891, where
decided that an element of fault was required at least in trespasses to the
this case, a bullet from the defendant's gun ricocheted off a tree stump and
claimant. The claim failed, because the claimant had not shown any fault on
of the defendant. He had not fired the gun carelessly, and could not have
..
..,tncurr~,
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LAW OF TORTS
expected to foresee the accident. However, in this case a principle was created that
. in trespass, the burden of disproving fault lay with the defendant; in negligence it is
the plaintiffs job to prove fault. As negligence continued to expand, cases involving
trespass were often decided on the same fault basis as negligence.
Fault in Wilkinson v Downton: In Wilkinson v Downton
case plaintiff, Mrs
Wilkinson. suffered a violent shock to her nervous system. causing her to vomit and
for her hair to turn \\ hite and other more serious and permanent physical
consequences and incapacity to her as well as expense to her husband for medical
expenses. Like most of the above analysed torts, this case is fault-based; the burden
of proof on de fendants fault lay on the plaintiffs. Mrs Wilkinson had to show that:
Defendant acted intentionally or recklessly; and Defendant's conduct was extreme
and outrageous; and Defendant's act is the cause of the distress; and She suffers
severe emotional distress as a result of defendant's conduct.
strict liability : Ry lands v. Fletcher was the first English legal case in which the
Court found in favor of Fletcher and ordered Rylands to pay for all the property
damage to the mine.
The rule in Rylands v Fletcher is contentious because it creates a form of strict
ity, that is, tault-free liability. This is different to a liability in negligence where
fault is the essence of that tort.
Conclusion: The law of tort is not usually concerned with establishing who is at fault
blameworthy - in a particular action. In some torts the claimant will have to show
particular element of fault, in others he won't.
Define Intention.
Explain in detail.
. A tortious liability may arise if a person causes any injury related to the life,
, reputation, etc. of the victim. According to tort law, the liability may be
irrespective of whether the injury was intentionally or accidentally inflicted.
~'W'''4A>.U
,ueDerloing on the intention, a tort can be divided into two broad categories namely:
Intentional Tort
2.
----.-..-..~......Tort: Some action must be taken with a purpose to commit an intentional
i.e. an intention is must to commit an act. It is essential that there is a mental
,---
Law Garratt v. Dailey: In 1955, a young boy whose name was Brian pulled a
from underneath Ruth Garratt as she went to sit down. Ruth fell and broke her
because of Brian' s chair-pulling. Ruth filed a lawsuit against the family of Brian
'I". to have acted intentionally, causing
her personal injury. Although Brian did
intend to cause injury, the court found that the act resulted in the hip being
and awarded Ruth $11,000 in damages. Brian's family appealed on the
that children 5 years of age could not be held liable for an intentional tort.
.....
·4.
JB SERIES
33
LAW OF TORTS
The court ruled that children can be held liable and that the intent element is in place
if the person knew with certainty that the act carries a risk of injury.
Intentional tort inc ludes:
Battery: When physically applying some force to another
offensive manner that causes some harm is called battery.
person's
body in an
Assault: When one person' s act creates an apprehension in another person's
that such act is likely or intended to cause such harm is called Assault.
mind
The difference between battery and assault is, in battery. physical contact is
mandatory while in assault. physical contact is not mandatory as the purpose is
threaten not to harm.
False Imprisonment: It is the person's unlawful confinement without his will. It is
not necessary to place a person behind bars, a mere impossibility of escape from a
certain area against the person's will is sufficient to constitute false imprisonment
wrong. It includes the use of physical force (actual expression of force is not always
required), a physical barrier such as a locked room, invalid lise of legal authority.
False arrest is the part of false imprisonment that includes police detention of
person without legal authority. Malicious prosecution falls under the category of
false imprisonment.
Trespass: It is the intentional, unreasonable invasion of property. land, person or
goods. The unreasonable interference can harass or harm the other person, however.
slight it may be. The owner of the property's legal right is infringed because the
misappropriation or exploitation of his right deprives him of his right to enjoy the
benefit of the property.
Unintentional Tort: The defendant causes injury to the plaintiff in the case of
unintentional torture, but without any mala fide intention. It could be called an
unexpected accident. This was inadvertently done by the person who caused the
injury because he/she was not being careful. Such an individual may be described as .
negligent or reckless. In the case of unintentional tort, it may be noted that the' .
is caused by the omission of the "duty of care" that a reasonable and prudent man
should have considered.
Wilkinson v. Downton:
In this case the defendant joked that her husband
encountered an accident and had been admitted to a hospital. She was shocked by
this news and fell seriously ill. She subsequently sued the defendant for "'''" .....
0-under tort. The defendant claimed he never wanted to harm the plaintiff, but only cut
a joke. The court dismissed his claim, holding him liable. Here, the court
that mere intention was not an essential factor in tort. The defendant was aware
the natural and probable consequences of his act which caused the plaintiff to suffer
damage. He was therefore liable, whether he intended to do so or not.
c1,-,i
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LAW Uf- I()KI~
kinds of damages in torts.
Ans. In torts, the damages which are awarded by Courts to the plaintiff can be
classifiedinto several heads.
1. Nominal Damages: Nominal damages are those in which even though the plaintiff
has suffered a legal injury at the hands of the defendant, there is no actual damage
suffered by him. These damages are provided in the cases of Injuria sine damno in
whichthe Court recognises the violation of the right of the plaintiff hut the amount
ofdamages are so nominal or low because of no actual loss to the plainti If
In the case of Constantine v. Imperial London Hotels Ltd., The plaintiff was a
cricketer from West Indies who had gone to the defendant hotel to stay but he was
rejectedon the basis of his nationality. therefore, the plaintiff stayed at another hotel
anddid not suffer any actual damage. In the case brought by him, the defendant was
ld liable because the plaintiff's legal right was violated despite no actual injury
and they had to pay nominal damages of five guineas.
'In the case of Ashby v. White (1703) the plaintiff was prevented from voting by the
. defendantand the candidate for whom the plaintiff was going to vote still won. The
. 'ff sued the defendant. It was held that even though no actual damage was
suffered by the plaintiff, the defendant was still liable for preventing him from
exercising his legal right to vote and thus nominal damages were awarded in this
i
Contemptuous Damages : These are similar to the nominal damages but the only
e between the two is that in nominal damages the plaintiff suffers no actual
and in contemptuous damages, the plaintiff suffers actual damage but it is a
trivial(petty) one in which he does not deserve to be fully compensated.
If A's dog relieves himself and enters B's house and B accidentally
on it and is disgusted and thus, he brings a suit against A, the Court will rule in
. s favour but because of such a trivial nature of this case the damages awarded by
Court will be of a meagre amount .
LU.. ,",U",UVJU.·
. CompensatoryDamages: Compensatory damages are awarded to help the plaintiff
reach his original position at which he was before the tort was committed against
These damages are not awarded to punish the defendant but to restore the
to his previous situation.
~U<.4U\'IU:
K takes T's bike and due to his rash driving the bike gets damaged. Here
can be awarded compensatory damages in which the amount for repairing the bike
.be payable to K by T so that the bike's condition can be restored back to its
state.
Aggravated Damages: These damages are awarded for the extra harm which is
to the plaintiff which cannot be compensated by the compensatory damages
it is given for factors such as the loss of self-esteem, pain and agony suffered by
plaintiff etc. which cannot be calculated in monetary terms
JB SERIES
35
Illustration: A makes false claims against B as a result of which B's standing·
society is greatly affected and he is also ridiculed by people which leads to
losing his self-confidence and self-esteem. Here Court can award B a
damages for the humiliation and loss of confidence because of his sufkring
caused by A's act.
5. Punitive Damages: These damages are also known as exemplary damages
purpose of these damages is to punish the defendant and to make an example of
so that others are deterred from committing the same act as he did ..
Illustration: A company advertises that its pill will help in quick weight loss
made up of natural ingredients. as a result, the plaintiff purchases it. But due
pills containing certain chemicals. it makes the plaintiff severely ill. Here the
can not only allow compensatory damages to the plaintiff but because 0
company's false claims, it can also award punitive damages so that it does not
the act again.
Conclusion
Damages are the monetary compensation which is awarded by the Court
plaintiff so that he can be enabled to make up for the loss which he has
because of the tort committed by another person .
...
133. What are the general defences to an action in tort?
~
Ans. In torts cases defence can be claimed. in two ways. They are
• The defendant can deny that the tort was committed or
• The defendant can deny on the grounds of legal sufficiency in the aIle
the plaintiff, even if a tort has been committed.
Some of the commonly known and recognized defences to any torts are:
1. Consent,
2. When plaintiff is the wrongdoer,
3. Inevitable accident,
4. Act of God,
5. Act in relation to Private Defence
6. Necessity
7. Act done in respect to statutory authority
CONSENT :Consent is usually expressed in law through the Latin phrase "~
nonfit injuria". Consent occurs when a plaintiff displays a willingness to
in the defendant's conduct. This consent can be express or implied.
Example: If any person is hit by the ball while watching a match in a
stadium, the general understanding here is that when the person bought the ticket
watch the match itself he agreed or consented to suffer any such damage or face
•
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g
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•
•
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•
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t.ttP
•
faceanY
36
LAW OF TORTS
such risks and so the players or stadium authorities are absolved from any sort of
liability arising out of such an accede
Consent may not always excuse a defendant of liability. Sometimes consent is
ineffective under certain conditions. They are
• If the plaintiff lacks the capacity to consent.
• If the plaintiff is coerced into consenting.
• If the plaintiff consents under false pretences.
WHEN PLAINTIFF IS THE WRONGDOER :This defence arises from the Latin
maxim "ex turpicausa non oritur action" which means no action arises from an
immoral cause. So an unlawful act of the plaintiff itself might lead to a valid delence
in torts.
After an evening of heavy drinking, the unlicensed and uninsured owner of a
motor-cycle drove the cycle on a public road in a reckless and dangerous manner
which the plaintiff, as pillion passenger. was found to have actively encouraged.
There was an accident in which the rider was killed and the plaintiff badly injured.
In the plaintiff s action in negligence, the judge dismissed the claim against the
defendant,
VIS MAJOR OR 'ACT OF GOD' :An act of God is a defence used in cases of torts
when an event over which the defendant has no control over the accident occurs and
the damage is caused by the forces of nature. In such cases, the defendant will not be
liable in tort law for such inadvertent damage.
In the case of Nichols v. Marshlandthe defendant has a number of artificial
lakes on his land. Heavy rain such as had never been witnessed in living memory
caused the banks of the lakes to burst and the escaping water carried away four
bridges belonging to the plaintiff It was held that the plaintiffs bridges were swept
by an act of God and the defendant was not liable.
INEVITABLE ACCIDENT: An inevitable accident is one, which cannot
avoided by the exercise of due care and caution.
be
In the case, Stanley v. Powell the plaintiff was employed to carry cartridge for a
shooting party when they had gone pheasant-shooting. A member of the party fired
at a distance but the bullet, after hitting a tree, rebounded into the plaintiffs eye.
When the plaintiff sued it was held that the defendant was not liable in the light of
the circumstance of inevitable accident.
ACTS DONE FOR PRIVATE DEFENCE: To use this defence three conditions
need to be satisfied.
• Firstly, there must be a real and imminent threat to the defendant.
• Also, it needs to be shown that the force used was only for the purpose of
protection or private defence and not for revenge.
JB SERIES
37
LAW OF TORTS
T
• There should be no mala fide or bad intention involved for a successful private
defence claim.
Suppose a person installs an electric wired fence around his property to
keep away trespassers without any warning signs at all. He is not only doing an act
which is grossly negligent but also he doesn't have the right to claim private defence
as the means used are way more dangerous than required.
NECESSITY: It is often said that necessity knows no law. This defence has been
recognized on the principle ofSalllsPoplIliSupremaLex i.e., the welfare of the people
is the Supreme Law.
j6
'"
1. T
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U
2·
3. T
4.'-f
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Cae law: Surroco v. Geary i~ a case bused on very similar facts. Wildfires had swept
through San Francisco around the time when this incident occurred, destroying
houses and businesses.
·
Surocco's house was directly in the path of the fire, and he was racing to get his
possessions out of the house as quickly as possible before the house was consumed.
Geary, the mayor of San Francisco. ordered the fire department to demolish
Surocco's house so that the fire would not spread any further into the
neighbourhood.
•
The court, however, found that the public necessity defence applied because the
damage to the city would have been far worse if Geary had not given that order.
ACT DONE IN RESPECT TO STATUTORY AUTHORITY :When the
commission of a tort, is authorized by a statute the injured person is remediless ..
For example :If there is a railway line near your house and the noises of the train
passing disturbs then you have no remedy because the construction and the use of
the railway is authorized under a statute. However, this does not give the authorities
the license to do what they want unnecessarily; they must act in a reasonable
manner. It is for this reason that we see that there are certain guidelines that need to
be followed during construction of public transport facilities.
34. State's Vicarious
Explain in detail.
Liability
for the torts perpetrated
by its employees.
Ans. The whole theory of the State's Vicarious Liability for the torts perpetrated by
its employees is based on two principles, namely• Respondent Superior
• Qui facit per alium facit per se
• \.11
~(
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vkl
ar10
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the G
Sta~
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orruss
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'-'
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• I
No~
Vicarious Liability: Usually we assume that the person himself gets punished ifhe
commits any wrong. But under the Law of Torts, there is a concept titled VicarioUS the \..,
Liability. Under Vicarious Liability, a person is held liable for the acts of another.
Justif
\J
The Essential elements of vicarious liability are as follows There
.\.r
--
t.
~o
LAW OF- rUKIS
1. There should be some relationship between the person who committed a wrong
and the other person.
2. Both the persons should be involved in the joint activity.
3. The wrongful act must be related to the relationship in a certain way.
I;
4. The wrong should be done within the course of employment.
been
Vicarious Liability is related to the Legal maxim "Qui facit per alium facit per
se" which means that "he who acts through another does the act himself"
•;!-
• Principal and Agent
• Master and Servant
• Servant and Independent Contractor
• Vicarious Liability of State
Vicarious Liability of State got evolved by the East India Company in 1858. But the
article 300 came into effect from 1950.
In India, while there is no clear law dealing with the vicarious liability of the
State, Article 300 of the Indian Constitution specifies that the union of India or
the Government of State can sue and be sued like any ordinary person
State's liability for the tortious actions of its employees is called as tortious liability
of the State. State is liable for the acts of negligence, wrongful execution and
omission or commission either voluntarily or involuntarily.
In the case of Peninsular and Oriental Steam Navigation Company v.
Secretary of State for India, the Supreme Court classified the functions of
secretary of state into two 1. Sovereign functions
2. Non-Sovereign functions
•
'Yet
Sovereign Functions: These are the functions of the state for which the state is not
liable under any provision for the wrongful acts of its employees.
For example:
~•
• Functions like defence activities,
• Preserving armed forces,
• Maintaining peace and war
•••
ifhe
!-
• Diplomacy are some of the sovereign functions for which the state is not liable.
Non Sovereign Functions: These are the functions of the state which are other than
the Sovereign Functions
Justification for the liability
There are many reasons to say that the vicarious liability of state is justified • The state is the one which is financially better.
JB SERIES
39
LAW OF TORTS
'-'
was
• Government motivates its employee to take reasonable care in order to avoid
accidents which may cause some danger to the third person. This motivation is
because the Government is liable to pay any compensation for the acts of the
employee.
h~g
• State gets some profits by the acts of the employee. So, it should hold up losses
incurred by the employee's acts.
Plair
• 1\11the acts done by the employee in the course of employment are done under
the State' s order. So, ultimately the acts are the State's own acts.
ofl'ic,
• As the State has the power to appoint and dismiss its employees, it is the duty of
T~"
the Stat,e to check the work done by its employees.
mall
~r
I3\.f t
~~t
III
Landmark cases
• Peninsular and Oriental Steam Navigation Company v. Secretary of State
for India
This case is a pre-constitution
case which prescribed
sovereign and non- sovereign functions of the state.
~
the difference
between
The simple details in this case are that the company's servant was on his way to
Calcutta in a carriage pulled by a couple of horses. An accident took place when the
wagon was travelling through the Government's dockyard. Some of the workers of
the Government Dockyard were carrying heavy iron rods to repair a steamer.
However these workers dropped the iron rods, the noise of which affected one of the
horses of the Plaintiff.
ex,
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The company filed a suit against the Secretary of State for India to get relief for the
damages. The Supreme Court of Calcutta held that the Secretary of State is liable for
the damages. This case is the first case which brought upon the difference between
sovereign and Non- sovereign functions of the state. As the maintenance of
Dockyard is a non- sovereign function, Government was held liable.
com=u
• State of Rajastan v. Vidyawati
(wr~i
Facts of the case are that a person named Lokumal was employed by the State of
Rajasthan as a temporary driver for a Government car. After the completion ofthe
repairs for car, during his return from the workshop, he knocked down a citizen
named Jagdishlal
(Plaintift).
Jagdishlal was severely injured and he
subsequently.
CotLn
The plaintiffs wife (widow) named Vidyawati and her minor daughter, through her
mother as next friend, sued Lokumal and the State of Rajasthan for the relief
Supreme Court held that the State was liable to pay the damages incurred as the act
of driver was not a sovereign function.
• KasturiIalRalia Ram v. State of UP
Facts of this case are that the Plaintiff was arrested by the UP police officers on
suspicion of having stolen property. On further investigation a huge quantity of gold
Leg\.!
Gove-r
legi~
and
abov~
r:
35. ~
Ans.'-t
with the
2019\,(.
July ~'"'I
'-'
•
•
LAW OF TORTS
twvoid
onis.
.fthe
Im
was found and the same was seized by the police officials. Finally, he was released,
but the gold was not returned to him as the Head Constable in charge of the
malkhana absconded with the gold. The Plaintiff then sued the State of UP to return
his gold or to pay damages for the same.
Asses
Supreme Court said that, it is the negligence of the police officers in dealing with the
Plaintiffs property and is violative of the UP Police Regulations.
:_•t
But the court finally contended that the State is not liable to pay because the police
officers acted negligently while they are executing their duty in arresting a person.
These powers like arresting a person and seizing property are sovereign powers. The
contention of the Supreme Court was' based on the statutory power and the act done
in exercise of the sovereign function.
•
ie under
y of·
•
• NilabatiBehera v. State of Orissa
In this case, Smt. N ilabatiBehera, Plaintiff sent a letter to the Supreme Court stating
that her 20 year-old son named SumanBehera died under police custody after being
severely injured. The Petitioner claimed compensation for the violation of her son's
right under Article 21. Police had arrested him for theft and he was detained at a
police outpost. On the very next day, his dead body was found near the railway
track. The Plaintiff strongly claimed that his death was the result of injuries inflicted
by police.
f~rthe
i_e for
ba-veen
atrce of
•
The Supreme Court stated that there is no evidence regarding the search by the
police for SumanBehera. There could also have been a possibility where the police
reached much later to take charge of the body when the police were informed by the
railway men. Doctor also attested that the injury on the body of deceased was due to
a blunt object which may be a lathi. Finally, the State of Orissa was sued to provide
compensation of Rs.1,50,000 to the petitioner and Rs.10,000 to the Supreme Court's
Legal Aid Committee. The Supreme Court also ordered the State of Orissa to
commence criminal proceedings against the persons who killed SumanBehara.
(writeany one or two caselawsin exam)
.the
Conclusion :Before 1858, there was no legislation regarding the liability of
Government for the wrongful acts of its subjects. The decision taken to formulate
l cItlZen legislation for this purpose is indeed superior. As our nation is a sovereign, secular
and democratic nation, this legislation should be there in order to protect all the
I.died
above said words.
~teof
I.
•
••
her
s the act
35. What are the salient features of the Consumer Protection Act, 1986.
Ans. The Consumer Protection Act was initially enacted in 1986 by the Parliament
with the purpose of protecting the interests of consumers of the country. In the year
2019 the three-decade-old Act was replaced by the Consumer Protection Act, on 20th
July 2019. The new Act was evidently a need of the hour.
icers on
.gold
JB SERIES
41
'-'
42
LAW OF TORTS
~
The new Act is designed to help customers and it endeavours to overcome the
problems which are faced in providing the basic rights of consumers of e-commerce,
which happens to be a major sector. They are
•
The right to safety
•
Right to Choose
•
Right to be informed
•
Right to consumer education
•
Right to be heard
•
Right to seek redressal
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The new Act helps in protecting these basic rights by application of new methods
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Definition of' consumer'
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The Consumer Protection Act, 2019 has expanded the definition of 'consumer'
that initially was limited to buying goods and services. and did not include online
purchases or teleshopping.
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The new definition under the 2019 Act inc ludes the description of online
transactions, offline tractions, teleshopping. multi-level marketing, and direct
selling.
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The following are the features of the Consumer Protection Act, 1986: _
36. ,~
The Act provides for establishing three tier consumer dispute redressal
machinery at the national, state and district level. These redressal mechanism
helps to safeguard the rights of the consumers. These redressal machineries are
available in three forms- district forum. state forum and national forum.
• District Forum- Each and every district has a District Consumer
Disputes
Redressal forum. According to section 11 of this act, this forum has the
jurisdiction to entertain complaints and disputes only where the value of the
value of the goods and services and the value of the compensation claimed does
not exceed 20 Lakh Rupees. The district forum has the same powers as that ofa
civil court in the following matters-
•
•
In the summoning and enforcing of attendance of any defendant
In examining the witness on an oath.
•
In receiving the evidence on affidavit.
•
In other matters which may be prescribed.
•
Demanding of the report of the concerned analysis.
or witness.
• State Forum- Each and every state has a state forum. According to Section 17
of this act, the pecuniary jurisdiction of a state commission for entertaining
complaint or issues where the value of goods and services and the compensation
claimed exceeds 20 Lakh rupees but not more than 1 Crore rupees.
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• National Forum- This forum was formed in the year] 988. According to
Section 21 of the act, the pecuniary jurisdiction of a national commission for
entertaining complaints where the value of goods and the compensation claimed
exceeds I Crore Rupees.
• It applies to all goods and services- This act has an extent to all goods and
services given and offered by a service provider. According to Section 2(7) of
the sale of goods act. .goods' means every kind of mov able property other than
money. This can include stocks, shares and things attached to or forming part of
the land which are agreed to be sold or in a contract to be sold.
• It covers all sectors' whether private, public or person. This act extends to all
providers at all lcve ls. It may be a private sector who is gi\ ing services.
For example, the multinational companies like Apple Inc .. Samsung Co., Ford,
Woodland. Nike etc. It may be a public sector like IDBI ban". Lire insurance
Corporation ofIndia (LIC) or ration dealers. It can be an individual person too
like the shopkeepers or the service providers. All of the III are termed as 'service
providers' .
Thus, the existence of this act helped the consumers to a large extent. Today, the
consumer knows their rights and thus the service providers focus on the quality of
goods and services and hence it maintains a good and healthy relationship between
both customers and service providers.
36. Write in detail about Occupiers
liability .
Ans. It deals with the liability or obligations towards lawful visitors, trespassers, and
Licencees.
Duty owed to lawful visitor:
The range of the occupier's ordinary duty within the scope of Section 2(2) of the Act
upheld the occupier's "common duty of care", to all his visitors. It is occupier's
duty to see that the visitor is reasonably safe in using his premises who enters the
premises with his permission to do some work. The characteristics of this visitor
also have to be kept in mind .
Common-law
divides lawful visitors under two heads,
• The invitees
• Licensees.
In the case oflndermaur v. Dames (1866), the plaintiff had entered the
defendant's premises with permission for examining a gas regulator. During this
process, he fell through an unfenced opening on the floor and thereafter injured
himself This case established three categories, trespassers, licensees and invitees,
treated differently in accordance with common law.
Later, a fourth category of contractual entrants were introduced as well.
JB SERIES
LAW OF TORTS
43
For example: If the occupier gave an independent contractor a certain work after
knowing his competency he could not be held liable for any accidents caused dueto
work organised by independent contractors.
Therefore, a licensee enters premises with the owner" s express or implied consen~
for his own purpose. It is the duty of the occupier to make the licensee aware of any
latest problems or defects. But the occupier is not liable ifhe himselfwas not aware
of such danger.
He would be liable even for an unusual danger that he was aware of or had
an obligation or knowing about it.
Duty of care towards trespassers: A trespasser, is a person entering the boundaries
of the occupier without his consent still owes a duty of care from the occupier
covered by the common law and the Occupiers Liability Act. 1984 but not
the Occupiers Liability Act, 1957
The occupier can instil reasonable methods for preventing entrance of trespassers
but does not have the right to cause an intentional injury for no reason. The occupier
of the premises owes a duty of ordinary care, such as
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Duty towards children: Trespassers could also include children who by some reason.
or allurement could want or try to enter such a property.
Eg: In the case of Robert Addie & Sons (Collieries) Ltd v Dumbreck, a
belonging to a colliery company, surrounded by large hedges, had a haulage
situated in it. The gaps between the hedges were covered preventing entry. Even
then Children would often enter and play in it. It was also known to be a shortcut
a local railway station, and the colliery company was aware of it and had often tried.
to warn people about it. One day, getting crushed by the system, a four-year-old boy
got killed.
The father of the boy filed a case against the company. But it was held
the boy was a trespasser, who at his own risk had entered the premises of the '"'v... ··/
and so the company owed no duty of protection against him or trespassers.
In the case of Mourton v. Poulter (1930), the defendant, a landowner,
aware of possible children trespassing, began cutting an Elm tree nearby without
warning the children. This in turn injured a child standing near it. It was held that the
defendant was liable for the injury of the child and he had acted negligently.
Therefore, the occupier has to take reasonable steps to prevent the child frolll
any danger. Children have to be protected from dangers, than adults
because the
children are not capable of forming decisions and taking steps to act in that motnen~
where the adult can perfectly and immediately do in that particular situation or
circumstances.
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37. What is Extinction of liability / Discharge of tort?
Ans. In the extinction of a tort, the circumstances are such that the liability exists but
its remedy does not. The meaning of discharge of is a process by which tort stops to
exist and the wrongdoer is no longer liable.
Discharge of Tort: There are seven different modes through which tort is discharged
and no remedy will lie for tort. It is a process through which the tort comes to an
end. A wrongdoer is not liable for his actions.
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Following are the methods of discharge of torts.
Death of the parties :Acliopersonalisl11oritur cum persona this is the important
maxim, it means if the person who commits a tort or the person against whom the
tort is committed dies, the personal right or the right to receive the damages or the
right of action dies with the person.
,
Illustration
If A files a case against the act of tort done by B. If A dies during the course of trial
and the case is still pending before the court. Due to the death of the A. the tort gets
discharged, as the right of action of A dies with him only.
Exceptions to the maxim of 'Actiopersonalismoritor cum persona' with respect to
Petitioner
The Legal Representative
Suits Act, 1885
As per this Act, the legal representative or the executors of any person, after his
death can represent the deceased person in the court of law.
Illustration:
If A died during the procedure of trial of court. His legal heir or representative
represent him in the court oflaw.
can
Similarly, in different laws/act like Fatal accident act, the Indian Succession Act,
Workmen Compensation Act etc. the representative of the plaintiff can represent
him in the court of law.
• Death of the person who commits tort i.e. Defendant
It means the person who commits the act of tort against any other person i.e. the
defendant dies, the tort gets discharged.
Illustration :If Ram commits the act of tort against Geeta, if Geeta files a complaint
., against Ram, but if during the course of trial Ram died, then his right of action also
dies with him i.e. the discharge of tort.
Exception to the maxim with respect to Defendant.
The Legal Representative Suits Act, 1885As per this act, if any person involved in any type of tortious act, died during the
....COurseof the trial. The right of action passes to the legal representative of that
JB SERIES
LAW OF TORTS
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Illustration :If A does an act of trespass to the good against B in past. Now if A dies
and it is proved that he was liable for damaging B's good. So the damages have to be
paid by his legal representative.
Similarly, in different laws/act like the Fatal Accident Act, Indian Succession Act,
Workmen Compensation Act etc. The of the defendant has to represent him in the
court oflaw
By Waiver :The concept of' waiver is when a person has more than one remedy
available to him, he has to elect one of them. He cannot apply for both the remedie!
except in the case of defamation and assault.
Illustration :If A files a case against B that B has committed a tort against A. If A
has the remedy in both tort and contract law, now he has to choose one between
them.
The main two principles lying in the doctrine of Waiver are:
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2. If the person fails to get the remedy he chooses, the court of law does not allow
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him to go back to an alternative remedy.
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Illustration; If A files a case against Z and has two remedies for which he can
approach the court of law. If he chooses the first remedy and loses the case. A
cannot approach to the court for the alternate remedy i.e., remedy number 2.
The Waiver can be Implied or Express
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In Express waiver, the person expressly communicates about his choice in the court
oflaw.
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Illustration :If A file a case and he has the remedy in both, contract as well as Tort. If the
When the court asks him he has to communicate his choice to the court.
then~
In the Implied form of waiver, the person impliedly communicates about his choice IIluSC
for which remedy he is applying.
If a pe
Illustration; If A has two remedies available to him like one under contract and one usinj.,
under Tort. if he applies for Contract, it becomes clear, he elects the remedy under himsel:
the contract.
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Accord and Satis faction:
In th~
Concept of accord means when the parties of the tort i.e. the person who commits once th
the tort and the person against whom the tort has been committed, come to an thes~
agreement and settle the dispute. Such an agreement is known as Accord. In
The "fw
term, it means settling the issue by accepting some consideration in lieu of the .
Judica{,
of action.
causeu
Satisfaction means the actual payment of consideration agreed by both, the person
/[/ustri'.
who commits a tort and the one against whom the tort committed.
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When both the accord and satisfaction once completed, it results in the dischargeof
tort and the dispute does not proceed in a court ofIaw.
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Illustration: If A dies due to injury caused by B's car. If A's family comes to an
agreement that B will pay Rs. 1,50,000 as compensation to them, that's the situation
of Accord. When they received the actual payment of 1,50,000Rs. from B, that's the
situation of Satisfaction. So, by settling the issue and accepting some consideration
A's family lost their right of action and the act of tort discharged.
The only condition in the concept of Accord and Satisfaction is the consent of the
party should be free and not from fraud, coercion or undue influence.
Illustration: If A, a son of a successful businessman brutally hit one
or his
servant
i.e. trespass to the body and if A tries to make his servant enter into accord by using
some type of undue influence on him. Due to that influence, the servant gave his
consent, this is not considered as free consent and the accord and satisfaction arc not
valid.
Release
A Release means giving up the right to the action. It means when a person by his
own choice discharged the tort. This right is only provided to the person against
whom the wrong has been done.
Illustration
can
case. A
Situation 1: A is the person against whom B does any act of Tort and if A, by his
free consent want to release B from the liability, he can do so.
.he court
Situation 2: A is the person against whom Band C both commit an act of tort and A
by his choice release B from the liability, this does not mean that C is also released
from his liability .
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Tort
The release should be voluntary and given by free consent from the injured person.
If the consent is taken by coercion, undue influence, or any other unlawful means
then that release should not be counted as a release and the tort is not discharged.
Illustration
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If a person is a police inspector, commits an act of tort against another person. By
using his position and by threat, take the consent of the injured person and release
himself from the liability, that release is not a valid release.
judgement
In this method, the discharge of tort happens by the judgement given by the court. If
once the court gives judgement on the matter, the tort gets discharged, no appeal for
the same act of tort can be claimed for the same remedy in the court of law.
The concept of this method of discharge of tort is based on the legal maxim of ResJudicata, it means, if any cause of action decided previously by the court, the same
cause of action should not be entertained by the court twice.
Illustration: If A gets the remedy against B for the accident committed
previously by the judgement
~
by him
of the court. Later he found that he needs to go through
JB SERIES
JB
SERIES
•
47
a further operation. He cannot claim another remedy for the same again in the
of law.
In Fitter v. Veal, (1701 12 Mod. Rep. 542)
gets 0\
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In this case, the plaintiff files a case against the defendant demanding damages
if
against the act of assault by the defendant and finally he gets the remedy from
as he I(
defendant as the court of law allows the remedy to him. Later he discovered that
..ConWu
has to go through a number or surgeries. He filed another petition against
defendant demanding more remedy against the act of assault again in the court
law.
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The court denied the petition and state that, If once court gives judgement on
matter, no further appeal for the same act of tort can be filed in the court of I
the tort gets discharged.
Exceptions
• If the petition was between the same party but is for different remedy
action taken in respect to the violation of another right. Then the petition
allowed.
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In Brunsden v. Humphrey:
In this case, the plaintiff was a cab driver and already received co
against the damage to his cab. Later discovered, due to the injury caused
accident, he got a fracture in his hand. He has the right to apply for the
against the trespass to his body as well.
.
• If the person who is liable for the act previously does the same act another
Illustration :If A commits the tort of trespass against B previously and held li
the court of law. If he again commits the same crime against B. If A plea
that the court cannot punish him for the same offence twice. The defence is not
because this case was considered as a fresh one.
Acquiescence
In this method, the tort gets discharged because of the incapacity of the
himself i.e. if he has no time to go to court, no money to pay the court fees,
other incapacity. When any person is entitled to enforce his right, and he
enforce his right for a long time, this makes other party waived from his liabi
Illustration: If A is entitled to enforce his right against B. If A neglects to
his right for a long time, it automatically waived B from his liability.
Law of limitation
Under this method the tort gets dismissed due to the limitation i.e.
prescribed time limit to file the case gets over, in this situation the tort
dismissed and no person is entitled to enforce his right.
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LAW OF TORTS
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Like, in the case of false imprisonment or libel the limit to file a case is 1 year, in
case of trespass to immovable property, the limit set is 3 years etc after the time limit
gets over, no person can enforce his/her right.
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Illustration: If a tort of trespass to the property has been committed by B against A,
_ages
from the
(_at he
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of
if A fails to apply against it within 3 years in the court of law, then he cannot apply.
as he lost his right to apply due to limitation.
Conclusion
A tort is an act/conduct that is twisted. It means the violation of a legal right of a
. person by the act of the other person i.e. the breach of the legal right of the other
person. But the right of action of the party can become discharged in certain
conditions like the death of any of the party. by Waiver, by Accord and Satisfaction.
by Release, or by the judgement of the court of law. Through the above methods, the
tort becomes discharge and no remedy will lie for that.
38. Write a short note on negligence.
•
Ans. Definition: According to Winfield and Jolowicz, Negligence is the breach of a
legal duty of care by the plaintiff which results in undesired damage to the plaintiff
Illustration: Z, An owner of a big dog requests his friend X to take care of the dog
while he is away. X leaves the dog unattended who attacks a passerby badly injuring
• him. Here it will be said that the act occurred due to the negligence of X.
Essentials of the tort of negligence
• Duty Of Care: It means that every person owes, a duty of care, to another
person while performing an act. .The duty is legal in nature and cannot be illegal
or unlawful.
• Example: A decorator was engaged to carry out decorations in a house. The
decorator left the house without locking the doors or informing anyone. A thief
entered the house and stole some property the value of which the owner of the
house claimed from the decorator. It was held that the decorator was liable as he
was negligent in leaving the house open and failed his duty of care.
• The Duty must be towards the plaintiff: It is not sufficient that the defendant
owed a duty of care towards the plaintiff but it must also be established which is
usually determined by the judge.
The case of Donoghue v. Stevenson (1932) has evolved the principle that
we each have a duty of care to our neighbour It was held that, though there is
no contract between the manufacturer and the person suffering the damage an
action for negligence could succeed since the plaintiff was successful in her
claim that she was entitled to a duty of care even though the defective good (
thing) i.e., a bottle of ginger beer with a snail in it was bought, not by herself,
but by her friend.
JB SERIES
~
49
•
Breach of Duty to take care .Its not enough for a plaintiff to prove that the
defendant owed him a duty of care but he must also establish that the defendant
In simple terms, it means non-observance ofa
breached his duty to the plaintiff.
standard of care.
In the case of Ramesh Kumar Navakvs Union of India, The Postal Authorities
failed to maintain the compound wal] or a post office in good condition. As a
result the wall collapsed ( tell) and the defendant sustained injuries. It was held
that postal authorities were liable since that had a duty to maintain the post office
premises and due to their breach or duty to do so, the collapse occurred. Hence
they were liable to pay compensation.
•
•
•
50
-~
Actual cause or cause in fact: In this scenario, the plaintiff who is suing the
defendant for negligence has the liability to prove is that the defendant'
violation of duty was the actual cause of the damages incurred by him.
For example :When a bus strikes a car, the bus driver's actions are the actual
cause of the accident.
Proximate cause :Proximate calise means the cause that the law recognizes
the primary cause of the injury. A defendant in a negligence case is
responsible for those damages that the defendant could have foreseen through
actions.
In the case of Palsgrafvs Long Island Railroad Co, A man was h
to catch a train and was carrying a packed item with him. The employees
railway saw the man who was attempting to board the train and thought that
was struggling to do so. An employee on the rail car attempted to pull him'
the train while the other employee who was on the platform attempted to
him to board the train. Due to the actions of the employees, the man dropped
package. Which had contained fireworks, and exploded when it hit the rails.
hit another passenger, Ms.Palsgraf, who then sued the railway company.
court held that Ms.Palsgraf was not entitled to damages because the relati
between the action of the employees and the injuries caused to him were
direct enough. Any prudent person who was in the position of the
employee could not have been expected to know that the package
fireworks and that attempting to assist the man to board the train would
the chain of events which lead to Ms.Palsgraf's injuries.
Consequential
harm to the plaintiff: Proving that the defendant
exercise reasonable care is not enough. It should also be proved the fai
the defendant to exercise reasonable care
The consequential harm may fall into the following classes»
a) Bodily harm
b)Harm to the reputation
c) Harm to property
d) Financial Loss
e)Mental Harm.
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When such damage/ harm is proved, the defendant is bound to compensate the
plaintiff for the damages occurred.
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In the case of Joseph vsDr. George Moonjely(l994) The Kerela high court
awarded damages amounting to Rs 1,60,000 against a surgeon for performing an
operation on a 24-year-old girl without following proper medical procedures and
not even administering local anaesthesia.
~
Defenses available in a suit for negligence
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•
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• Contributory negligence by the plaintiff :Contrihutory negligence means that
when the immediate cause of the damage is the negligence of the plaintiff
himself the plaintiff cannot sue the defendant for damages. It is based on the
maxim volenti non fit iniuria which states that i I' someone willingly places
themselves in a position which might result in harm. they are not entitled to
claim for damages caused by such harm.
The burden of proving contributory negligence rests on the defendant in the first
instance and in the absence of such evidence. the plaintiff is not bound to prove
its non-existence
In the case of Shelton Vs L & W Railway (1946), while the plaintiff was crossing
a railway line, a servant of the railway company who was in charge of crossing
shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear
the warning and was consequently injured. The court held that this amounted to
contributory negligence by him.
• An Act of God :An Act of God is a direct, violent and sudden act of nature
which by any amount of human foresight could have been foreseen and if
foreseen could not by any amount of human care and skill have been resisted.
Thus such acts which are caused by the basic forces of nature come under this
category. For example storm, tempest, extraordinary high tide, extraordinary
rainfall etc.
If the cause of injury or death of a person is due to the happening of a natural
disaster, then the defendant will not be liable for the same provided that he
proves the same in the court of law. This particular defence was talked in the
case of Nichols v. Marsland (1876) in which the defendant had a series of
artificial lakes on his land. There had been no negligence on the part of the
defendant in the construction' and maintenance of the artificial lakes. Due to
unpredictable heavy rain, some of the reservoirs burst and swept away four
country bridges. It was held by the court that the defendant could not be said to
be liable since the water escaped by the act of God.
• Inevitable Accident :An inevitable accident can also be called as a defense of
negligence and refers to an accident that had no chance of being prevented by the
exercise of ordinary care, caution, and skill. It means a physically unavoidable
accident.
JB SERIES
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51
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LAW OF TORTS
In the case of Brown v. Kendal (J 850) the plaintiff's and defendant dogs were
fighting and their owners attempted to separate them. In an effort to do so,
Defendant beat the dogs with a stick and accidentally injured the Plaintiff,
severely injuring him in the eye. The Plaintiff brought suit against the Defendant
for assault and battery. It was held that the injury of the plaintiff was as a result
an inevitable accident.
~
"
or
•
Conclusion:
As discussed negligence is of two types. civil and criminal and each has various
repercussions. In order to prove that an act was negligent, it is necessary to prove all
the essentials namely duty, breach of duty. damages and actual and proximate cause.
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LAVV ut- I UK I~
Part - CAnswers
1. X' published a mistaken statement that 'Y' has given birth to twins.
Actually 'Y' is just married 2 months back. Explain whether 'X' is liable for
any tort or not.
Facts of the case:
• X' published a mistaken statement that 'Y' has given birth to twins.
• Actually 'Y: is just married 2 months back.
Issues of the case:
• Is 'X' liable for publishing such mistaken statement'?
• Principle: This case is similar to the case of Ritchie & Co
Facts of the case:
• Ritchie & Co the defendant by mistake published a statement that the
plaintiff had given birth to twins in good faith. The reality of the matter was
that the plaintiff got married just two months before. The defendant was held
liable for the offence of defamation and the element of good faith is immaterial
in such cases.
• Judgement: Yes, based on the above case judgement in the given case also '
X' is liable for tort of publishing such mistaken statement
2. 'X' has given his car to 'Y' for a drive. 'Y' commits accident. Discuss
whether 'X' is liable or not.
Facts of the case:
• 'X' has given his car to 'Y' for a drive.
• 'Y' commits accident.
• Issues of the case:
Is 'X' liable for accident committed by his friend 'Y' ?
Principle: If anyone lends his I her car to his Iher friend and that friend commits an
accident insurance coverage attaches to the vehicle and its driver. Therefore, a car
owner is not liable for any accident that a friend, family member, or other
borrower causes while operating the owner's car.
Judgement: As per the above principle in the given case 'X' is not liable directly
for the accident committed by his friend 'Y' but insurance company will pay
because car is insured on 'X' 's name.
••
•
3.
'Y' has written a libellous letter addressed to 'X', knowing that letter will
be opened by the clerk. Discuss whether it amounts to defamation or not.
Facts ofthe case:
• 'Y' has written a libellous letter addressed to 'X'.
• He know that the letter will be opened by the clerk.
•
Issues of the case:
Does it amount to defamation or not?
JB SERIES
J
.:
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,
'-'
53
LAW OF TORTS
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Principle: Under the law of defamation , publication is the communication Or
making known by one person ( The publisher) to another ( the third party) of
defamatory matters about and concerning the person defamed. It is not confined in
printing and distribution of books I newspapers Imagazines. If the Words
complained of have been told /disclosed I disseminated ( in written or oral fonn)
to a third party. those words are considered to have been published. To establish a
claim for defamation, the plaintiff has to prove publication ofthe defamatory words
by the defendant.
Judgement:
Yes as per the above principle in the given case a libellous
written by 'Y' addressed to 'X', knowing that letter will be opened by the
amounts to defamation.
\..6
pers
~J
TJ,.t
t~t
~
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letter
proi
clerk
'-'
6. 'X'
M
4. 'X' has saving account in SBH - Ramakrishnapuram Branch, Nagole. Bank
Manager refused to honour cheque presented by 'X'. Though sufficient funds
are in the 'X' account - Whether Bank Manager is liable or not?
Facts of the case:
•
•
•
Issues
•
'X' has saving account in SBH - Ramakrishnapuram Branch, Nagole.
Bank Manager refused to honour cheque presented by ·X'.
Bank Manager did so though there are sufficient funds in 'X' s account.
of the case:
~
PriCi
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\.Ii
fOJ
Is Bank Manager liable for refusing to honour the cheque?
\-e
Principle: A banker has a statutory obligation to honour his customer's cheques
unless he has valid reasons to dishonour it. If dis honouring of a cheque is due to the
mistake or negligence of the Banker or any of his employees, then he attracts
liability. This is referred to as wrongful dishonour of a cheque and the banker who
dishonours the cheque intentional1y without any valid reason or by mistake or due to
negligence is liable to compensate for the loss suffered by the customer.
M,
~
~1
He
,
~.
Judgement : Yes .As per the above principle in the given case
SBH
Ramakrishnapuram Branch, Bank Manager Nagole is liable for dishonouring
cheque.
Judg,-,
5. 'X' a firm member of jewellers of Hyderabad left to Bangalore for ~""'"'''I'. doctor
gold and silver. He was taken into custody by Bangalore police on sUS.....,""~..• inter~
Later, on enquiry, left him. Whether 'X' has a remedy or not.
Facts of the case:
•
•
7.A~
'X' a firm member of jewellers of Hyderabad
gold and silver.
•
He was taken into custody by Bangalore
enquiry, left him.
Issues of the case:
•
Whether 'X' has a remedy for wrongful custody
left to Bangalore
police on suspicion.
for
:,\[.,JjIJ'Z::>.
Later,
prt-::
Hanft
Fact..
•
j
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or not ?
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Principle :Wrongful prosecution is the kind of prosecution or trial where procedural
misconduct of the police or prosecution agencies or a complainant puts an innocent
person to suffer the ordeal of wrongful arrest, confinement
or prosecution but
ultimately resulting in his acquittal.
The person suffered under wrongful prosecution can request the government to
take criminal law remedies against the concerned public official in pursuance of
the provisions in Indian Penal Code (Il'C) and CrPC.
Judgement: yes as per the above principle 'X' can request the government to take
criminal law remedies against the concerned public official in pursuance of the
provisions in Indian Penal Code (Il'C) and ~rPC.
6. 'X' was suffering from dreadful disease Aids. 'Y' family doctor disclosed this
fact to 'Z' relative of 'X'. Whether Doctor is liable or not.
Facts of the case:
• 'X' was suffering from dreadful disease Aids.
• 'Y' family doctor disclosed this fact to '2' relative of ·X·.
Issues of the case:
• Is his family doctor liable or disclosing his patient's AIDs to relative of ' X ?
Principle: Right of Confidentiality:
The right not to disclose a patient's information has its sources from the
Hippocratic oath which has been enshrined in the Code of Medical
formed by The Medical Council of India .with the previous sanction
Central Government under Section- 22A read with Section-33(m) of the
Medical Council (Amendment Act) 1964.
Greek
Ethics
of the
Indian
The code carves out an exception that doctor can disclose information for the
public interest.
Hence, relying on Code of Medical Ethics as an exception to the rule of
confidentiality, the court held that in certain cases where specific people might
be endangered if the information is not disclosed, the doctor can disclose the
information.
Judgement : Based on the above principle in the given case also the the family
doctor 'X' also not liable for disclosing to his patient's relative for the public
interest.
7. A trespasser knew the presence of a fierce dog in 'B's house. A entered the
premises and was attacked by the dog, he sustained injuries. Whether 'B' is
liable or not?
Facts of the case:
• A trespasser knew the presence ofa fierce dog in 'B's house.
• A entered the premises and was attacked by the dog, he sustained injuries
Issues of the case:
JB SERIES
,
LAW OF TORTS
55
~
•
Is 'B'
liable or not foe A's injuries
<\_,t
Principle: In most jurisdictions, whether the house owner has a "Beware of Dog"
sign posted or not. he will be liable for any damage to humans or property that Your
dog causes.
Under the law, a trespasser is basically someone who comes onto property owned by
another without hav ing permission to do so. When it comes to liability, with very
few exceptions. a dog owner is not responsible / liable for a dog bite to a trespasser.
Judgement: As per the above principle in the given case'
liable for his dog attack on trespasser.
B' the house owner is not
lake
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hild
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8.
'X' was travelling by RTC bus, resting her elbow on the window sill.
Truck coming from opposite side hit her and as a result she met with injuries.
Whether RTC is liable or not.
Facts in issue:
• X' was travelling
by RTC bus, resting her elbow on the window sill.
• Truck coming from opposite side hit her and as a result she met with injuries.
Issues of the case:
• Is RTC is liable or not for the passenger's elbow injury ?
Principle: It is a matter of common knowledge that passengers sitting near the
window rest their hand on the window sill specially when on a long journey in the
country-side. The driver of a bus carrying passengers on long journeys is expected
to have knowledge of this fact. The drivers of the two buses were bound to take
precaution against the possibility that while grazing each other some person might
be placing his hand or elbow on the window sill. Since the two vehicles came too
close to each other resulting into accident without there being justification for the
same it has to be presumed that the drivers had failed to take reasonable care for the
safety of passengers and therefore they were negligent.
Judgement: Based on the above principle In the given case the truck driver cannot
be traced to sue him So RTC is liable to pay compensation for the elbow injury
the passenger as vicarious liability.
9. 'X' created artificial lakes on his land due to extraordinary
rainfall,
embarkments of the lakes gave away and damaging the four bridges of 'Y'.
whether 'X' is liable or not.
Facts in issue:
• 'X' created artificial lakes on his land.
• Due to extraordinary rainfall, embarkments
damaging the four bridges of 'Y'.
of the lakes gave away and
Issues of the case:
•
Is X liable for that damage of four bridges ofY ?
Principle: This case is identical to the case Nicholas VS Marsland
V
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In this case Nicholas vs Marsland the defendant diverted a natural stream
on his land to create ornamental lakes. Exceptionally heavy rain caused the artificial
lakes and waterways to be flooded and damage adjoining land. The defendant was
held not liable as the cause of the tlood was an act of God .. However great the flood
had been, if it had not been greater than floods that had happened before and might
be expected to occur again .
Judgement: Basing on the above ease Judgement in the given case also X is not
liable for the damage otYts lour bridges as it is an act of God.
10.Defendant is an Animal Lover and he had a Passion of collecting different
species of snakes. One snake escaped into the plaintiff's property and bitten
him. Is the defendant liable for snake bite?
Facts of the case:
• Defendant is an Animal Lover.
• He had a Passion ofeollecting different species of snakes.
• One snake escaped into the plaintiffs property and bitten him.
Issues of the case:
• Is the defendant liable for snake bite?
Principle: Rule of Strict Liabi Iitv
The strict liability principle is an extremely important concept under the law of
torts. The basis of this principle basically lies in the inherent harm that some activities
can inflict. For example, leaking of poisonous gasses, as it happened in the Bhopal Gas
Tragedy, will attract this rule.
The underlying principle of compensation in torts generally depends on the
extent of precautions a person takes. Hence, ifhe takes abundant precautions to prevent
some harm, the law may exempt him from paying damages. This principle, however,
. does not apply to strict liability.
Under the strict liability rule, the law makes people pay compensation for
damages even if they are not at fault. In other words, people have to pay compensation
to victims even if they took all the necessary precautions
Judgement: In the given case as per "Rule of Strict Liability "One snake escaped
into the plaintiffs property and bitten him. For that the defendant is liable for snake
bite.
The defendants were a firm of construction. The plaintiff entered into an
agreement with the defendant to purchase a flat constructed by the defendant.
The plaintiff took the possession of the flat and very soon he found that the
ceiling of the flat is falling down. Are the defendants liable?
Facts in issue:
• The defendants
were a firm of construction.
JB SERIES
51
• The plaintiff entered into an agreement with the defendant to purchase
constructed by the defendant.
• The plaintiff took the possession of the flat and very soon he found
ceiling of the flat is falling down.
Issues of the case:
Are the defendants liable for the falling down of the ceiling?
Principle: As per a landmark decision passed by Honourable Supreme
1993 in the case of Lucknow Development Authority vs. M.K.Gupta. a builder
constructs a house or hires the services of a contractor to develop a nr{~np..1"
engaged in the act of providing service to his customer, and for which he is
monetarily compensated. This makes him a service provider and hence liable
the clauses of Consumer Protection Act 1986.
Judgement: Based on the above judgement in the given case also the defe
liable for falling ofthe ceiling and they need to get it repaired.
12. A driver of a goods truck in contravention of a statutory provision
lift to an unauthorized passenger in the truck. Due to the driver's
the passenger was killed in the accident. Whether the owner of the true
be held liable.
Facts in issue:
1. A driver of a goods truck in contravention of a statutory provision gave
an unauthorized passenger in the truck.
2. Due to the driver's negligence, the passenger was killed in the accident.
Issues of the case:
l.Whether the owner of the truck can be held liable.
Principle: Reasons for liability of the Master
• Qui facit per aliumfacit per se: An act which is committed by the
considered to be done by the master through him and therefore in the
torts, it is assumed that if any wrong is done by the servant, it has
committed by his master indirectly and so the master is held liable for
wrongs.
• Respondent Superior: The master is in a better financial position as
to his servant and thus in case of any loss caused by the tortious act
servant, the master is better suited to payoff the damages to the victim
act. Also, since the master is made liable he makes sure that all reasona
and precautions are carried so that he can avoid such liability.
in i
l.~
2. {~
3. )\s
"
These two maxims have played a significant role in the development of the
vicarious liability of the master.
c
Q
:;0
LAW OF TORTS
Judgement: Yes, based on the above two maxims in the given case also the the
owner of the truck can be held liable for the accident done by his driver which is his
vicarious liability.
13. 'Y' was travelling by Railways. While crossing of another train, his elbow
at the window was injured. Whether Railways are liable or not?
Facts in issue:
I. 'Y' was travelling by Railways.
2. While crossing of another train. his elbow at the window was injured.
Issues of the case:
I. Whether Railways are liable or not?
Principle: Any incident treated as Railway accident involving a passenger train by
the public at large and the Railway staff should be treated to be such an accident.
falling within the ambit of
Section 82-A. Any mishap or misfortune in the working of a Railway inv o l , ing a
passenger train or a part there of resulting in the death of or personal injury to a
passenger travelling therein, during his rail journey is an accident within the ambit of
Section 82-A. This will exclude any incident voluntarily and consciously invited by
the passenger, i.e., suicide by jumping in front of the moving train.
Judgement: As per the above principle in the given case the elbow injury of Mr.Y
While crossing of another train will fall within the ambit of Section 82-A. Hence
Railways are liable and need to pay compensation to the passenger Mr. Y.
14. 'A' parked his car by the roadside and left a dog inside the car. The dog
jumped about and smashed a glass panel. A splinter from the glass injured 'B'
while he was walking past the car. Is there any negligence on the part of 'A'?
Discuss.
Facts in issue:
1. A' parked his car by the roadside and left a dog inside the car.
2. The dog jumped about and smashed a glass panel.
3. A splinter from the glass injured' 'B' while he was walking past the car.
Issues of the case:
1. Is there any negligence on the part of ' A'?
Principle: When the defendant is not liable for negligence: In Fardon vs Harcourt,
the defendant parked his car by the roadside and left a dog inside the car The dog
jumped out and smashed the glass panel. A splinter from this glass injured the
plaintiff while he was walking past the car. The court Held, that the accident being
very unlikely, the defendant was not liable.
Judgement: Based on the above case judgement in the given case also there is no
negligence on the part of A who left his dog in his parked car.
JB SERIES
59
LAW OF TORTS
15. 'X' was imprisoned without his knowledge by 'Y'. Whether
liable for "false imprisonment"?
'Y' can be
~iI
Facts in issue:
Pe
1. 'X' was imprisoned without his knowledge by 'Y'.
l:
Issues of the case:
rati I
1. Whether 'Y' can be liable lor "false imprisonment"?
Principle:
~t
\I~
Knowledge of the Plaintiff:
mon
There is no requirement that the plaintiff alleging false imprisonment was aware
of the restraint on his freedom at the time of his confinement Ir the person is
confined in a room, with one of the entries known to the plaintiff closed. and the
room has more than one entry-exit door. but the plaintiff has no knowledge about
the same, the defendant will still be held liable. Thus, the person confined does
not have to be aware of the confinement or be harmed by it as it is actionable per
se.
a\..lr
800(,
(~c
Judgement: As per the above given principle in the given case also Y can be liable
for false imprisonment.
16. Suman and his friends were playing cricket. One among them hit the ball
and broke the windows glass of M r.X. who is liable for the loss?
18~
Facts of the case:
• Suman and his friends were playing cricket.
• One among them hit the ball and broke the windows glass ofMr.X.
Issues of the case:
-v
place
l\.;1
•
Who is liable either all friends or the boy who hit the ball liable for the
loss?
Principle: Joint and several liability is most relevant in tort claims, whereby a
plaintiff may recover all the damages from any of the defendants regardless of their
individual share of the liability. The rule is often applied in negligence cases
Judgement:
In the given case all friends together playing cricket. As per the above
principle it is Joint and several liability. Hence either. all children or the boy alone
can be liable for the loss.
17. X, a minor borrowed Rs. 10,000/- from Y. when Y demanded to pay back
the amount, he argues that he is a minor and contract with minor is void.
What is the remedy available for Y?
'-'
Iss~
~
Pril(}
Facts (
'-'
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his~
Facts in issue:
X, a minor borrowed Rs. 10,0001- from Y.
When Y demanded to pay back the amount, he argues that he is a minor and
contract with minor is void.
Issues of the case:
1. Is the contract with minor is void?
•
•
1
Withe.,.
ifhe di
~
the v\.,
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lite
•
•
•
•
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2. What is the remedyavailable for Y?
Principle: It can be saidthat majority is an essential before entering into a contract.
By looking at the Indian ~aw,minor's agreement is a void one, ie it has no value in
the eye of the law and it ISnull and void as it cannot be enforced by either party to
the contract. And 'even after he attains majority. the same agreement could not be
ratified by him.
Case law: MohiriBibi vs. DharmodasGhosh
Facts of the case - The plaintiff DharmodasGhosh. when he was a minor.
mortgaged his property to the defendant. a moneylender. At that time, defendant's
attorney had the knowledge about plaintil'fs age. The plaintiff later paid only Rs.
8000 but refused to pay re~tof the money. The plaintiffs mother was his next friend
(legal guardian) at that tIme: so ~e commenced an action against the defendant
saying that at the time ofrnakmg ot a contract. he was a minor, so the contract being
a void one, he is not boundby the same.
The court held that unless the part ies have competence under Section 11
the Act, no agreement is a contract.
•
•
•
•II
ball
•
their
Judgement: Hence in the given case also the contract between 'X' and 'Y' is null
and void an initio and the defendant Y cannot claim his money Rs.10,000 given to
'X' as he is minor.
18. The defendant workers gathered around the plaintiff, rolling of their
sleeves and threatening to break his neck if he did not immediately leave the
place. Is defendant liable for any tort?
Facts of the case:
• The defendant workers gathered around the plaintiff.
• They rolled their sle.eves and threatened him to break his neck
• Ifhe did not immediately leave the place.
Issues of the case:
• Is defendant liable for any tort?
Principle: The given case is similar to the case Read v Coker
•
••
~.
•
••
•11
•
Jove
and
0f
Facts of the case:
The defendant had a bus.iness disagreement with the plaintiff, his partner. The
defendant thereupon ordered ~lS .work~en to throw the plaintiff out of the premises.
They then surrounded the plaintiff rolling up their sleeves and threatening to break
his neck ifhe did not leave the premises.
The court held that there was an assault. There was threat of violence together
with an intent to do batterY to the plaintiff. Threatening to break the plaintiffs neck
ifhe did not leave the premises was an assault. and made the defendant liable.
When a tortfeasor incur tort liability, which means that they have to compensate
the victim for the harm which has caused by them.
JB SERIES
61
UL
LAW OF TORTS
'-'Ju
Judgement:
Based on the above principle in the case also defendant is liable for
the tort of assault.
~
un
'-'
19.'X' purchased a computer to run a DTP work business. Subsequently, he
found the computer with some defects. He wants to file a complaint before
the district forum. Advise.
21.
\.,.
Facts in issue:
\..t •
•
I. X' purchased a computer to run a DTP work business.
2. Subsequently, he found the computer with some defects.
3. He wants to file a complaint before the district forum.
Issues of the case:
1. He wants to file a complaint before the district forum. Will he succeed?
Principle: Chapter III of the Consumer Protection Act. 1986 deals with consumers
grievances. By establishing
three tier Consumer Disputes Redressal Agencies
namely the District Forum, the State Commission and the National Commission
As per Sec. 2(b)(iv)Consumer
Protection Act, 1986
Any consumer or any number of consumers are legally entitled to bring a class
action against a trader if they have the same interest in the product used or service
availed.
Further, the Act empowers such bodies to give reliefs of specific nature and
award appropriate compensation to the aggrieved party as they may find it fit in a
particular case.
Judgement: As per Consumer Protection Act 1986 guidelines in the given case also
'X ' can complain before the district forum and can get appropriate compensation.
'A' doctor left a mop inside the abdomen of 'Y' during an operation. 'V'
died due to infection. Discuss the liability of A.
20.
Facts of the case :
• 'A' doctor left a mop inside the abdomen of' Y' during an operation.
• 'Y' died due to infection.
Issues of the case:
• What is the liability of the doctor A?
Principle: Normally medical negligence cases are to be booked under section304
A( causing death of a patient by doctor' s negligence).
To impose criminal liability under Section 304-A, it is necessary that the death
should have been the direct result of a rash and negligent act of the accused and that
the act must be the proximate and efficient cause without the intervention of
another's negligence.
Prine
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from
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child
ank
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be\w:
defen
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Fare
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Judgement: Based on the above principle in the given case also <A' the doctor who
is responsible for the death of 'Y' the patient during an operation, is to be booked
under section 304 A.
21. Rajan planted poisonous plants around his house, so that animals may not
enter his house, for these poisonous plants red colour berries were hanging.
One boy ate and died. Who is liable?
Facts of the case:
• Rajan planted poisonous plants around his house.
• lie did so to prevent animals entering into his house.
• for these poisonous plants red colour berries were hanging. One boy ate and
died.
Issues of the case:
'I
•
•
•
L'el
••
-•
1 of
• Who is liable for the boy's death?
Principle: This case is similar to the case Glasgow Corporation v Taylor.
Facts of the case: The father ofa seven-year-old boy sued the Glasgow Corporation
for damages following the death of his son who died as a result of eating berries
from a poisonous plant that was growing in the Botanic Gardens in Glasgow. The
gardens were open to the public and managed by the defendant. The father argued
that the defendants allowed children to pass through their grounds frequently yet did
. not take any action to warn or alleviate the danger caused by the poisonous plant to
children. The plant was enclosed by a wooden fence which was open to the public
and easily accessed by children.
Decision: The court held that the Glasgow Corporation was liable in this instance.
They had permitted children to go on to the land and it is understandable that the
berries would have appealed to visiting children, thus representing a danger. The
defendants were aware of this danger caused by the poisonous berries and did
nothing to prevent the damage. On this basis, the action was required to proceed to
trial.
Judgement: Based on the above case judgement in the given case also the Rajan is
liable for the death of the boy who died after eating the poisonous fruits from
Rajan' s garden.
22.
A, a newspaper published a defamatory matter and the same was
published by other local newspaper next day. State who is liable.
Facts in issue:
• A, a newspaper published a defamatory matter.
• The same was published by other local newspaper next day.
Issues of the case:
• Who is liable for publishing defamatory matter in a newspaper?
• Whether the first publisher or republisher?
JB SERIES
63
Principle: As a general matter, in most jurisdictions, the republisher can be
liable fix repeating a false, defamatory statement made by someone
Republication liability can make, for example, a newspaper liable for publi
defamatory letter to the editor or for quoting someone's defamatory statement
article.
Judgement: Basing on the above principle in the given case 'A' the first news
which published the defamatory matter and the local news paper which repu
the same are liable.
23. The plaintiff is a heart patient. The doctor's advised him to be away
any noise and to take rest. At regular intervals there were sounds of
ringing in the neighbourhood church and he used to get disturbed. He
case on the authorities for nuisance. Is the church authorities lia
nuisance?
Facts in issue:
• The plaintiff is a heart patient.
• The doctor's advised him to be away from any noise and to take rest.
• At regular intervals there were sounds of Bell ringing in the
~.avv...,
church and he used to get disturbed.
• He filed case on the authorities for nuisance
Issues of the case:
H_~ ....
Principle: In Soltau Vs De Held (1851), the plaintiff resided in close quarters
roman catholic church. The chapel bell of the church was rung all through
night. It was held that the continuous ringing of the bells constituted a
nuisance and the plaintiff was entitled an injunction.
Judgement ; Based on the above judgement in the given
authorities are liable for public nuisance which was created by the ringing
the bells continuously . And also the plaintiff can get an injunction <4,E,"uu'1,
church authorities for not to ring bells in future.
24. A young 'Z' lured girl to have sexual relations under the garb of
Marry. Later, girl became pregnant 'X' refused to Marry. What
remedy available to girl?
Facts in issue:
• A young 'Z' lured girl to have sexual relations under the garb of
Marry.
• Later, girl became pregnant 'X' refused to Marry. What is the
available to girl?
Issues of the case:
'-'
Xaij
haJW
nker. :
0'
"
.x\t
acts
• Tt,
LAW OF TORTS
•
What is the remedy available to girl?
Principle: The consent for sexual intercourse obtained by a person by giving false
promise of marriage would not excuse him from rape charges. Whenever the
accused gives promise 10 the victim to marry her , never had any intenlion to marry
and the victim gave the consent for sexual intercourse on such an assurance by the
accused that he would many her, such a consent oblained on a misconception of
fact as per Section 90 »rrrc and in such case, such a consenl would not excuse the
offender can be said 10 have committed the rape as defined under Section 375 ofIPC
and can be convicted lor the offence U/S 376 of the IPC.
Judgement: Based on the above principle in the given case the girl can file a rape
caseIPC.
against Z U/S 375 of IPe and Z will be convicted for the offence U/S 376 of
the
25. 'X' was called to his office on the pretext for some enqUiry and was made to
sit there in the room till the police arrived to arrest him. He wants to file a
case against his employer. Discuss.
Facts in issue:
• X' was called to his office on the pretext for some enquiry.
• He was made to sit there in the room till the police arrived to arrest him.
• He wants to file a case against his employer
Issues of the case:
• Can he file case against an employer?
Principle :False imprisonment is the wrongful restraining, confining or detaining a
n"''''"on without that person's
consent. It is a crime (i.e. Penal Code, § 236) and can
be charged as a felony or misdemeanour. It is also a common law tort.
False imprisonment can arise in the employment context. This would typically occur
during a workplace investigation when an overzealous employer
;:investigates allegations of employee wrongdoing and tries to question the employee
or coerce a confession. The act of false imprisonment happens When the employee is
intentionally and illegally held against his or her will.
Judg~ment: As per the above principle in the given case the employer detained the
employee on the name of some enquiry till the police come and arrest him. This is
nothing but false imprisonment.
26. X a Banker refuses to honour customer's checque haVing sufficient funds in
his hands helonging to the customer. Customer intends to file a suit against the
banker. Will he SUcceed?
Facts of the case :
• X a Banker refuses to honour customer's cheque
• Though having sufficient funds in his hands belonging to the customer.
JB SERIES
LAW OF TORTS
• Customer intends to file a suit against the banker
Issues in the case:
•
Is X. the Baker liable for refusing to honour the cheque?
Principle:
A banker has a statutory obligation to honour his customer's
unless he has valid reasons to dishonour it.
cheques
Judgement:
Based on the principle in the given case also X, the banker is liable
funds in his hands
for refusing to honour customer's cheque having sufficient
belonging to the customer.
27. The Plaintiff, who was in advanced stake of pregnancy was standing behind
her husband's
public bar. The defendant's
servant negligently drove a
ran into the bar with the result that she got a severe shock and delivered
which became dull headed. Advice her.
Facts of the case:
•
The Plaintiff, who was in advanced stake of pregnancy was standing behind
her husband 's public bar.
•
•
The defendant's servant negligently drove a horse ran into the bar.
As a result the result she got a severe shock and delivered child which
became dull headed.
Issues in the case:
• What are the remedies available to her?
Principle:
This case is identical to the case Dulieu v White. The plaintiff
in this case was the pregnant wife of a publican. The defendants and their servant
negligently drove a pair-horse van into the public-house. The plaintiff was SPVI"'TP.IIY.'
shocked, was subsequently ill and then gave birth to a premature child who was
born an idiot. The plaintiff sought damages and was awarded them by the court.
this case Kennedy J in his dictum said that you can only claim nervous shock if
fright is for yourself and not for a third party.
Judgement:
Based on the above case judgement in the given case also the
can sue the defendants for damages. Because in the above case the plaintiffwas
awarded damages by the court.
28. X, a driver of a police patrol jeep while reporting for duty in the morn
and while driving to the police station he negligently crushed a school going
boy under his jeep. The father of the boy brought an action for damages
against the state, Decide.
Facts of the case:
•
--------
X, a driver of a police patrol jeep was reporting for duty in the morning.
While driving to the police station he negligently crushed a school going
under his jeep.
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LAW OF TORTS
• The father of the boy brought an action for damages against the state,
Issues in the case :
•
Can the father of the deceased boy sue the state for its servant's negligence?
Principle : Vicarious Liability of state is also known as the tortious liability of the
Government. State's liability for the tortious actions of its employees is called as
tortious liability of the State. State is liable for the acts of ncg ligcncc. wrongful
execution and omission or commission either voluntarily or involuntarily.
State of Rajasthan Vs Vidyawati
The respondents filed a suit for the damages made by an employee ofa-State and the
case questioned whether the State was liable for the tortious act or its servant - The
Court held that the liability of the State in respect of the tortious act by its servant
within the scope of his employment and functioning as such ',as similar to that of
any other employer.
Judgement: Based
the given case also
in the death of a
government for the
on the above principle and the judgement in given case law in
state is liable for its servants negligence dri"ing which resulted
boy. So in the given case the father of the boy can sue the
damages.
--
000 --
JB SERIES
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PAPER-V
. ENVIRONMENTAL LAW
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PAPER V - ENVIRONMENTAL LAW
CONTENTS
PART A QUESTIONS
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1. What is Ecology and explain about Eco system.
iJ27.
2. Write about biosphere.
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3. Biodiversity
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4. Ozone depletion
5. Global warming.
6. Explain the Theory of Strict Liability with examples.
7. Explain the theory of Absolute Liability.
8. National
Green Tribunal. ( NGT)
9. Article 48A and Art. 51A (g) of the Constitution ofIndia - Right to wholesome
environment - Right.
10.What is Sustainable development?
I 1.Ramsar Convention 1971.
12.Bonn Convention (Migratory Birds) 1992
13.Nairobi Convention, 1982 (CFCC)
14.Biodiversity Convention (Earth SummitI992).
15.Kyoto Protocol 1997.
16.Johannesburg Convention 2002.1 Earth Summit
17.National environmental Tribunal Act 1995.
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18.Public Nuisance
19.PIL for Environmental Protection
20.Endangered Species
21.Acid Rains
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22.Polluter Pay Principle
23.Public Trust Doctrine
24.Climate Change
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25.Right to Development
26.Article 21 of the constitution - Right to Life.
27.Transboundary
Pollution
28.Noise pollution
29.Coastal Eco systems
PART - B QUESTIONS
30.What do you know about environment?
31.What is the need for Conservation and protection
or environment?
32.Write an essay on Ancient Indian approach to environment protection.
33.Discuss the causes for Environmental degradation/ pollution and its effects. ?
34.What are the Common Law remedies against pollution _
35.Explain the administrative efforts to combat the hazards of noise pollution.
36.Write about the laws relating to the preservation, conservation and protection of
forests.
37.Explain the law relating to the wild life and endangered species, marine life,
coastal ecosystems and lakes etc.
38.What are the Salient features of the Prevention of Cruelty to Animals Act,
1961?
39.What is Pollution and what are the related Acts to control it?
40.Environment pollution control mechanism.
4 1.What are the Salient features of The Environment (Protection) Act, 1986?
42.Composition of National environment Tribunal. Explain in detail.
43.What is National Environmental Appellate Authority Act 1997?
44. What are liabilities of multinational companies?
45.What is Stockholm Declaration on Human Environment, 1972?
46.What is the Role ofUNEP for the protection of environment?
JB SERIES
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Environmental
•
Law
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Part -A Answers
1. What is Ecology and explain about Eco system.
Ans: Ecology can be defined as the relationship shared by organisms with the
environment and \V ith each other. The main three const ituents of ecology are the
following• Interactions and relationships with the surrounding environment
• Interactions and relationships with other organisms
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Every plant and animal present in the ecology relies on the numerous
aspects of the environment, in order to get nutrients. water. and food. Another thi~g
that is studied in the field of ecology is how the organisms respond to the atmosphere,
topography. soil. and climate and water availability. Biodiversity within the ecosystem
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Ecosystem
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The ecosystem consists of all the living species in a community and dealing with
several external and abiotic factors. An ecosystem is divided into two parts1. biotic
2. abiotic
Biotic factors include the living beings of the ecosystem and the abiotic factors
include the non-living physical beings. The most common abiotic factors are water,
soil, sunlight, minerals, and other things. Two aspects hold the biotic and abiotic
factors together1. The cycling of various nutrients in the ecosystem
2. The flow of energy through the ecosystem
There c
Living organisms
Differences
between ecology and ecosystem
Ecology and ecosystem differ in the following ways-:
• Ecology revolves around the relationship between the environment and living
organisms.
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• Ecosystem revolves around the study of different places and environments, such
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as streams, still water, desert, river, grassland, forest etc.
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• Ecology is the study of the environment and different ecosystems.
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• The ecosystem is generally the subset of the broader ecology.
• There are no general classifications when it comes to the ecology.
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• However, the ecosystem can be of different types such as sea ecosystem, forest
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ecosystem and pond ecosystem.
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• Ecology is an extensive study of living beings or organisms and their
co
interactions and relationship with the environment.
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• On the other hand, the ecosystem is considered the subset of ecology and it
• Th
revolves around all the complex interactions between living beings and non~
living beings in a community or area.
• Ecology is a broader perspective of the environment.
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ENVIRONMENTAL
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• An ecosystem consists of every biotic and abiotic factor of the environment.
2.Write about biosphere.
Ans. The biosphere is made up of the parts of Earth where life exists. The biosphere
extends from the deepest root systems of trees to the dark environment of ocean
trenches, to lush rain forests and high mountaintops.
Biosphere Reserve: Biosphere reserves are the protected areas meant tor the
conservation of plants and animals. It also restores the traditional life of the tribals
living in that vicinity. They conserve the biodiversity of that area.
There are 18 Biosphere Reserves in India established by the government that protect
large areas of natural habitats. These areas are provided with the buffer zones that are
open for some economic uses. Not only the flora and fauna but also the humans
inhabiting these areas are protected.
The Biosphere Reserves are identified by the Man and Biosphere Reserve Program to
promote sustainable development. This program was initiated by UNESCO in 1971.
Zones of Biosphere Reserve
There are three biosphere reserve zones:
• Core
• Buffer
• Manipulation
1. Core Zone
• This is a legally protected area where human intervention is strictly prohibited.
• It is the innermost undisturbed ecosystem.
• The information from these areas helps to assess the sustainability of activities,
or maintenance of environmental quality in the surrounding areas.
2. Buffer Zone
• The area surrounding the core zone is the buffer zone.
• Here only the research and education activities are permitted to humans. These
activities should not obstruct the conservation objectives of the core area.
• This area also includes activities that help to manage natural vegetation,
agricultural land, fisheries, or forests to enhance the quality of production.
• This zone might also include recreation and tourism facilities. Human activities
are less intensive in this zone as compared to the transition zone.
3. Manipulation
1.
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Zone
• It is the peripheral area of a biosphere reserve where human activities like
cropping, recreation, forestry, and settlements are permitted with the
cooperation of reserve management and local people.
• Through these activities, the degraded area is resumed to its natural form.
• The local communities, scientists, conservation agencies, cultural groups, and
other stakeholders work in this zone to use the area in a sustainable way for the
welfare of humans living there.
Importance of Biosphere Reserves
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The importance of biosphere reserves is mentioned below:
Conservation
plants
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Biosphere reserves conserve the species, ecosystems, genetic diversities. and
landscapes without affecting the inhabitants.
For eJ
Development
It ensures sustainable developments
developments.
3. ~
including economic, cultural. social and economic
Restoration
The biosphere reserves restore any damage caused to the ecosystems and habitats.
Education and Research
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These areas provide a lot of information on how to restore, conserve. ana develop the
ecosystem. The researches provide ways to recreate landscapes that have been affected
by human activities.
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All the landowners, public institutions, farmers, scientists. industry. and conservation
groups found in these areas can work together to look for comprehensive land
management.
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Healthy Ecosystems
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They help in maintaining healthy ecosystems by preventing soil erosion, protecting
water springs, and maintaining the decomposers to maintain the soil quality.
Thus, we know that biosphere reserves are a great source
for biodiversity conservation.
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3. Biodiversity.
Ans: Biodiversity describes the richness and variety
biodiversity was coined in 1985. It deals with nature's variety, the biosphere. It refers '....
to variabilities among plants, animals and microorganism species.
Biodiversity includes the number of different organisms and their
frequencies in an ecosystem. It also reflects the organization of organisms at
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levels.
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Types of Biodiversity
There are the following three different types of biodiversity:
1. Genetic Biodiversity
2. Species Biodiversity
3. Ecological Biodiversity
1. Genetic diversity
It refers to the variations among the genetic resources of the organisms. Every
individual of a particular species differs from each other in their genetic constitution.
That is why every human looks different from each other. Similarly, there are different
varieties in the same species of rice, wheat, maize, barley, etc.
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FNVIRONMFNTAI 1(\'(\/
2. Species diversity
It is the biodiversity at the most basic level. It includes all the species ranging from
plants to different microorganism. No two individuals of the same species are exactly
similar.
For example, humans show a lot of diversity among themselves.
3. Ecological diversity
It is the diversity observed among the different ecosystems in a region. Diversity in
different ecosystems like deserts. rainforests, mangroves, etc., include ecological
diversity.
Importance of Biodiversity
Biodiversity and its maintenance are very important for sustaining life on earth. Few
of the reasons explaining the importance of biodiversity are:
Economic Importance
• Biodiversity is a reservoir of resources for the manufacture of food. cosmetic
products and pharmaceuticals.
• Crops livestock, fishery. and forests are a rich source of food.
• Wild plants such as Cinchona and Foxglove plant are used for medicinal
purposes.
• Wood, fibers, perfumes, lubricants, rubber, resins, poison and cork are all
derived from different plant species.
• The national parks and sanctuaries are a source of tourism.
• They are a source of beauty and joy for many people .
...................
1mportance
All the species have a right to exist. Humans should not cause their voluntary
extinction.Biodiversity preserves different cultures and spiritual heritage. Therefore, it
very important to conserve biodiversity .
•V..... ,.lt..' in India
is one of the most diverse nations in the world. It ranks ninth in terms of plant
richness. Two of the world's 25 biodiversity hotspots are found in India. It is
origin of important crop species such as pigeon pea, eggplant, cucumber, cotton
sesame. India is also a centre of various domesticated species such as millets,
legumes, vegetables, medicinal and aromatic crops, etc.
India is equally diverse in its faunal wealth. There are about 91000 animal
found here. However, diversity is depleting at a drastic rate and various
grammes on biodiversity conservation are being launched to conserve nature.
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Ozone depletion .
. Ozone depletion is greatest at the South Pole. It occurs mainly in late winter and
spring (August-November) and peak depletion usually occurs in early October,
Ozoneis often completely destroyed in large areas.
This severe depletion creates the so-called "ozone hole" that can be seen in
of Antarctic ozone, made using satellite observations.
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The hole grew in the years following ratification of the Montreal Protocol,
due to the lag caused by the fact that ozone-depleting
substances remain in the
stratosphere for a long time. The maximum size of the ozone hole is now decreasing.
Effects of ozone depletion for humans and the environment:
• It causes increased UV radiation levels at the Earth's surface, which is damaging
to human health.
•
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UV radiation effects include increases in certain types of skin cancers. eye
cataracts etc
• UV radiation also affects terrestrial and aquatic ecosystems.
• Aquatic life just below the water's surface, the-basis of the food chain. is
adversely affected by high UV levels.
• UV rays also affect plant growth, reducing agricultural productivity.
Action to protect Ozone Layer:
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The Montreal Protocol
The Montreal Protocol's objective is to cut down the production and
consumption of ozone-depleting substance.
Global consumption of ozone-depleting substances has been reduced by some
98% since countries began taking action under the Montreal Protocol. As a result, the
ozone layer is showing the first signs of recovery.
Nevertheless, the ozone layer is not expected to recover fully before the
second half of this century. This is because once released, ozone-depleting substances
stay in the atmosphere for many years and continue to cause damage.
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Measures to be taken globally to continue the recovery of the ozone layer are:
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• Use of ozone-depleting substances continue to be reduced.
• Banks of ozone-depleting substances are replaced with climate-friendly
alternatives.
•
Ensuring that Permitted uses of ozone-depleting
illegal uses.
substances are not diverted
• Reducing use of ozone-depleting substances in applications.
• No new chemicals or technologies emerge that could pose new threats to the
ozone layer.
In 2016, Parties to the Montreal Protocol agreed to add the most common
of F-gas (fluorinated gases), Hydro fluorocarbons (HFCs), to the list of
substances.
5. Global warming.
ADS. Global warming occurs when Carbon Dioxide (C02) and other air po
greenhouse gases collect in the atmosphere and absorb sunlight and solar
have bounced off the earth's surface. Normally, this radiation would escape
space-but
these pollutants, which can last for years to centuries in the
trap the heat and cause the planet to get hotter. That's what's known as the oreenns
effect.
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Effects of global warming
.
• Melting glaciers, early snowmelt, and severe droughts will cause more dramauc
water shortages and increase the risk of wildfires in the American West.
• Rising sea levels will lead to coastal flooding on the Eastern Seaboard,
especially in Florida, and in other areas such as the Gulf of Mexico.
• Forests, farms, and cities will face troublesome new pests, heat waves, heavy
downpours, and increased Hooding. All those factors will damage or destroy
agriculture and fisheries.
• Disruption of habitats such as coral reefs and Alpine meadows could drive
many plant and animal species to extinction.
• Allergies, asthma, and infectious disease outbreaks will become more cOllln~o~l ,
due to increased growth of pollen-producing ragweed, higher level~ 01 air
pollution, and the spread of conditions favorable to pathogens and mosqUItoes.
Measures to be taken to control the global warming:
• Make conserving energy a part or your daily routine and your decisions as a
consumer.
• When you shop for new appliances like refrigerators, washers, and dryers, .Iook
for products with the government's Energy Star label; they meet a higber
standard for energy efficiency than the minimum federal requirements.
• When you buy a car, look for one with the highest gas mileage and lowest
emissrons.
• You can also reduce your emissions by taking public transportation
carpooling when possible.
6. Explain the Theory of Strict Liability with examples.
or
The principle of strict liability evolved in the case of Rylands v Fletcher. In the
1868, the principle of strict liability states that any person who keeps hazardous
on his premises will be held responsible if such substances escape the
ses and causes any damage.
Going into the facts of the case, F had a mill on his land, and to power the mil.l,
built 'a reservoir on his land. Due to some accident, the water from the reserVOIr
moooeothe coal mines owned by R. Subsequently, R filed a suit against F. The ~ourt
that the defendant built the reservoir at his risk, and in course of it, if any aCCIdent
marmeln~
then the defendant will be liable for the accident and escape of the material.
Going by the principle laid in this case, it can be said that if a person brings on
land and keeps some dangerous thing, and such a thing is likely to cause some
'Ual.l1a}!~e
if it escapes then such person will be answerable for the damage caused. The
from whose property such substance escaped will be held accountable even
he hasn't been negligent in keeping the substance in his premises.
"-A"VII
The liability is imposed on him not because there is any negligence on his pa~,
the substance kept on his premises is hazardous and dangerous. Based on this
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judicial pronouncement, the concept of strict liability came into being. There are some
essential conditions which should be fulf lied to categorize a liability under the head of
strict liability.
Essentials of Strict Liability
Dangerous Substances: The defendant
will be held strictly liable only if a
"dangerous" substance escapes from his premises.
For the purpose of imposing strict liability, a dangerous substance can be
defined as any substance which wi II cause some mischief or harm if it escapes. Things
like explosives, toxic gasses, water. electricity, etc. can be termed as dangerous things.
Escape: One more essential condition to make the defendant strictly liable is that the
material should escape from the premises and shouldn't be within the reach of the
defendant after its escape.
For instance: The defendant has some poisonous plant on his property. Leaves from
the plant enter the property of the plaintiff and is eaten by his cattle, who as a result
died. The defendant will be liable for the loss. But on the other hand, if the cattle
belonging to the plaintiff enter the premises of the defendant and eats the poisonous
leaves and die, the defendant would not be liable.
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In the judicial pronouncement of Reads v. Lyons & Co. It was held that if there-is
no escape, the defendant cannot be held liable.
Non-natural Use: To constitute a strict liability, there should be a non-natural use
the land. In the case ofRylands v. Fletcher, the water collected in the reservoir
considered to be a non-natural use of the land. Storage of water for domestic usejs
considered to be natural use. But storing water for the purpose of energizing a
was. considered non-natural by the Court. When the term "non-natural" is to
considered, it should be kept in mind that there must be some special use
increases the danger to others. Supply of cooking gas through the pipeline,
wiring in a house, etc. is considered to be the natural use of land.
For instance, if the defendant lights up a fire in his fireplace and a spark escapes
causes a fire, the defendant will not be held liable as it was a natural use of the I
There are certain exceptions to the rule of strict liability. They arePlaintiff's Fault: If the plaintiff is at fault and any damage is caused, the
wouldn't be held liable, as the plaintiff himself came in contact with the
thing.
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In the judicial pronouncement ofPonting v Noakes, the plaintiffs horse died
entered the property of the defendant and ate some poisonous leaves. The Court
that it was a wrongful intrusion, and the defendant was not to be held strictly
such loss.
Act of God: The phrase "act of God" can be defined as an event which is
control of any human agency. Such acts happen exclusively due to natural
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ENVIRONMENTAL
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::.ii!not be prevented even while exercising caution and foresight. The defendant
IJ.Ildn't be liable for the loss if the dangerous substance escaped because of some
woreseen and natural event which couldn't have been controlled in any manner.
Act of the Third Party: The rule also doesn't apply when the damage is
Ahe act of a third party. The third party means that the person is neither
o.Lthe defendant, nor the defendant has any contract with them or control
v"k.
But where the acts of the third party can be foreseen, the defendant
care. Otherwise, he will be held responsible.
11
caused due
the servant
over their
must take
For instance : In the case of Box v J ubb. where the reservoir of the defendant
artlO\ved
because a third party emptied his drain through the defendant's reservoir,
the Court held that the defendant wouldn't be liable.
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of the Plaintiff:
This exception
follows the principle
of violent in on tit
fjIria.
~r instance, if A and B are neighbors, and they share the same water source which is
"lated on the land of A, and if the water escapes and causes damage to B, he can't
_im damages, as A wouldn't be liable for the damage .
•
Explain the theory
of Absolute Liability.
-Ms. The rule of absolute liability, in simple words, can be defined as the rule of strict
1!\,ility minus the exceptions i.ete defendant cannot escape from liability .This
Wility i~ b~~ed ?n the princip!e of "no f~ult li~bility". According to the rule of
absolute liability, If any person IS engaged in an inherently dangerous or hazardous
.ivity,
and if any harm is caused to any person due to any accident due to that such
inherently dangerous and hazardous activity, then the person who is carrying out such
eivity will be held absolutely liable
In India, the rule of absolute liability evolved in the case of MC Mehta v
.ion
ofIndia.This is one of the most landmark judgment which relates to the concept
cl' absolute liability.
•
The facts of the case are that some Oleum Gas leaked in a particular area in
~lhi from industry. Due to the leakage, many people were affected. The Apex Court
Wen evolved the rule of absolute liability- without considering the exceptions like the
,..ict liability rule.
The rule laid down in the case of MC Mehta v UOI was also followed by the
preme Court while deciding the case of Bhopal Gas Tragedy case. To ensure that
victims of such accidents get quick relief through insurance, the Indian Legislature
ssed the Public Liability Insurance Act in the year 1991.
he Public Liability Insurance
>
Act, 1991
This act was introduced with the aim of providing immediate relief to people who are
ctims of accidents in which handling of hazardous substances is involved. The main
ocus of the Act is to create a public liability insurance fund which can be used to
"ompensate the victims.
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The Act states that any person who is carrying out inherently dangerous Or
hazardous activities should have insurances and policies in place where he will be
insured against liability to provide compensation to the victims in case any accident
takes place, and some injury occurs. This liability is based on the principle of ''no fault
liability". If any substance is inherently dangerous or hazardous due to its handling
also. then also the absolute liability of the defendant arises.
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Conclusion: The rule of strict liability and absolute liability can be seen as
exceptions. Generally a person is made liable only when he is at fault. But the
principle governing these two rules is that a person can be made liable even without
his fault.
8. National Green Tribunal. ( NGT)
Ans. It is a specialized body set up under the National Green Tribunal Act (20 I 0)
for effective and expeditious disposal of cases relating to environmental
protection and conservation of forests and other natural resources.
• NGT is mandated to make disposal of applications or appeals finally within 6
months of filing of the same.
Structure of NGT
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• The Tribunal comprises of the Chairperson, the Judicial Members and Expert
Members and they are appointed by the central government consultation with
Chief Justice of India (eJI). for a term of five years and are not eligible for
reappointment.
.Being a statutory adjudicatory body like Courts, apart from original jurisdiction side
on filing of an application, NGT also has appellate jurisdiction to hear appeal as a
Court (Tribunal).
Functions of the Green Tribunal:
NGT by an order, can provide
• relief and compensation to the victims of pollution and other environmental
damage (including accident occurring while handling any hazardous
substance ),
• for restitution of property damaged,
• for restitution of the environment for such area or areas, as the Tribunal
may think fit.
• An order/decision/award of Tribunal is executable as a decree of a civil
court.
The procedure for a penalty for non compliance:
• Imprisonment for a term which may extend to three years,
• Fine which may extend to Ten Crore rupees, and
Con\..u
TheI\.,i
environ
II
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ADs. 'rr;
48-Av
;preserve
ArticV'
environr
V
safegl\.J,
V
obligatio
enforc~
under
V
•
•
ENVIRONMENTAL
--
--
LAW
-----------
• Both fine and imprisonment.
•~.
be
•
• An appeal against order/decision! award of the NGT lies to the Supreme
Court, generally within ninety days from the date of communication.
The NGT deals with civil cases under the seven laws related to the environment,
these include:
•
•
•
•
The
The
The
The
Water (Prevention and Control of Pollution) Act. 1974,
Forest (Conservation) Act, 1980,
Air (Prevention and Control of Pollution) Act, 1981,
Environment (Protection) Act 1986. etc.
,
• Any violation pertaining to these laws or any decision taken by the Government
under these laws can be challenged before the NGT.
Advantages of NGT
• .It helps reduce the burden of litigation in the higher courts on
environmental matters.
• NGT is less formal, less expensive, and a faster way of resolving
environment related disputes.
• It plays a crucial role in curbing environment-damaging activities.
There is need for more autonomy and widen NGT's scope for effective protection of
environment in balance with human developmental activities.
Article 48A and Art. 51A(g) of the Constitution of India - Right to wholesome
nt - Right.
Ans. In the year 1976, the constitution was amended. With this amendment, Article
was inserted in the constitution with the aim to afford better provisions so as to
mreserve and protect the environment.
48A lays down the directive principle for protection and improvement of
u'"", .... "'... and safeguarding of forests and wildlife. It reads as:
The State shall endeavor to protect and improve the environment and to
the forests and wildlife of the country.
~-~'~"''''UJ.U
This Article was added by the 42nd Amendment, 1976 and places an
obligation on the State to protect the environment and wildlife. While not judicially
Article 48A may become enforceable under the ambit of the right to life
Article 21.
"''' ...UI'-'.
JB SERIES
l~
FNVIRONMr-"'TI\.~ ~,I\,'.\'
In M.e. Mehta v. Union of India (2002), the Supreme Court heard a public
interest litigation in the matter of air pollution in Delhi. The Court made the following
observations regarding Article 48A and public health:
I IJw
'-'•
in~
Articles 39, 47 and 48A by themselves and collectively cast a duty on the
State to secure the health of the people, improve public health and protect and improve
the environment.
In SachidanandPandey
& Ors. v. The State of West Bengal &Ors. (1987),
the Supreme Court held that Article 48A must be kept in mind whenever a matter
regarding maintenance of the ecology is brought before the Court.
Part IV -A of the constitution deals with Fundamental
Duties. Article 51A(g) specifically deals with the fundamental duty of the citizens to protect and
improve the natural environment which includes forests, rivers, lakes, wildlife and to
have compassion for living creatures. Like the duty of the state. it is the duty of all the
citizens of not only protecting the environment but also taking measures which are
adequate enough to improve the environment.
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sc
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pr
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~(
In State of Gujarat
v. MirzapurMotiKureshiKassabJamat&Ors.
(2005), the
Supreme Court held that the intention of the Parliament in enacting Article 51A was
for it to be read with Articles 48 and 48A, ensuring that the spirit of all provisions are
honored.
(1)1
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11.'-'
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10. What is Sustainable
development?
Ans. "Sustainable development is development that meets the needs of the present,
without compromising the ability of future generations to meet their own needs". All
too often, development is driven by one particular need, without fully considering the
wider or future impacts.
Sustainable development is the practice of developing land and construction
projects in a manner that reduces their impact on the environment by allOWing them to
create energy efficient models of self-sufficiency. This can take the form of installing
solar panels or wind generators on factory sites, using geothermal heating techniques
or even participating in cap and trade agreements.
Sustainable development has 3 goals: They are
•
To minimize the depletion of natural resources,
•
To promote development without causing harm
•
To the environment and to make use of environmentally
friendly practices.
For sustainable development to be achieved, it is crucial to harmonize three core
elements:
•
•
Economic growth,
social inclusion and
Ans.1
part\.;J
the Co
inte~
inte~na
resolrfi(
Aue:
Austral
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RamsaJ
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• Environmental protection.
These elements are interconnected and all are crucial for the well-being of
individuals and societies.
Eradicating poverty in all its forms and dimensions is an indispensable
requirement for sustainable development. To this end, there must be promotion of
sustainable, inclusive and equitable economic growth, creating greater opportunities
for all, reducing inequalities, raising basic standards of living. fostering equitable
social development and inclusion, and promoting integrated and sustainable
management of natural resources and ecosystems.
Many of the challenges facing humankind, such as climate change, water
scarcity, inequality and hunger, can only be resolved at a global level and
by promoting
sustainable
development:
a
commitment
to social
progress, environmental balance and economic growth.
The biggest criticism of sustainable development is that it does not do enough
to conserve the environment in the present and is based on the belief that the harm
done in one area of the world can be counter balanced by creating environment
protection in the other.
11. Ramsar Convention 1971.
Ans. The Ramsar Convention is the only global environmental treaty that deals with a
particular ecosystem. The treaty was adopted in the Iranian city ofRamsar in 1971 and
the Convention's member countries cover all geographic regions of the planet. It is an
.
treaty that provides the framework for national action and
I cooperation for the conservation and wise use of wetlands and their
~\"'(IDllerenCles
of Contracting Parties
The Contracting Parties meet every three years at a Conference of the Contracting
. (COP) to discuss policy issues and to report on the activities of the previous
years through National Reports.
Ramsar mission
Convention's mission is "the conservation and wise use of all wetlands through
and national actions and international cooperation, as a contribution towards
ing sustainable development throughout the world".
JB SERIES
The Convention uses a broad definition of the types of wetlands covered
its mission, including lakes and rivers, swamps and marshes, wet grasslands and,
oases, estuaries, deltas and tidal flats, near-shore marine areas, mangroves and coral
reefs, and human-made sites such as fish ponds, rice paddies, reservoirs, and salt pans.
The Wise Use concept
"Wise use" therefore has at its heart the conservation and sustainable use of wetlands
and their resources. lor the benefit of humankind.
me\.)
protec
It '-'(
12. Bonn Convention (Migratory Birds) 1992
unders
Ans. The Convention on the Conservation
of Migratory Species of Wild Animals , .••. ad~
and wi
also known as the Convention
on Migratory
Species (CM S) or the BOlln
~
Convention. is an international agreement to protect those species of wild ....
14.
Bi(
that migrate across or outside national boundaries signed in 1979 in Bonn,
\..f
the Convention entered into force in 1983.
.,,,1(11)
As of September 2020, there are 131 Member States to the Convention.
depositary is the Government of the Federal Republic of Germany it aims
conserve migratory species within their migratory ranges. The Agreement was
under the auspices of the United Nations Environment Programme and is concerned
with conservation of wildlife and habitats on a global scale.
Objectives:
•
•
•
Endangered migratory species to be listed in appendix I;
Migratory species to be subject to agreements listed in appendix II;
International agreements should deal with those aspects of the conservation
and management of the migratory species concerned which serves to achieve
the object of protection;
internal
ConW(
entered
som~~
TheV
• T
V
• T
• A scientific council to be established to provide advice on scientific matters;
• A secretariat to be established. (Source: UNEP Register of International
Treaties and Other Agreements in the Field of the Environment, 2005)
.'-1
~
Putting up curtains or window decals helps make the window visible
to birds Protect
Birds From Pets Unleashed
dogs and outdoor cats can
harm birds by disturbing, chasing, and even killing them. Keeping your cat indoors
and your dog from straying saves millions of birds each year.
V
.~
•
T
ObjelU
13. Nairobi Convention, 1982 (CFCC)
Ans. Nairobi Convention forms the flagship programme of the United Nations
Environment Programme's Regional Seas Programme. The Convention, signed in
1985, was effected from 1996. It aims at the sustainable development of the marine
and coastal environment by international cooperation.
It connects the nations sharing the Western coastal line of the region together to
pursue the vision of healthier coasts and oceans. The nations are engaged in a close
•
T_
~
• W
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SPI
V
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~
16
-----------------
--
----------------------------
network wherein they exchange their information and research outcomes, addressing
the environmental threats, for effective implementation of the Convention.
The Nairobi Convention is a partnership between governments, civil society
and the private sector, working towards a prosperous Western Indian Ocean
Region with healthy rivers, coasts and oceans.
The Convention offers a regional legal framework and coordinates the efforts of the
member states to plan and develop programmes that strengthen their capacity to
protect, manage and develop their coastal and marine environment.
It also provides a forum for inter-governmental discussions that lead to better
understanding of regional environmental problems and the strategies needed to
address them; and 'promotes sharing of information and experiences in the WIO region
and with the rest of tlie world.
14. Biodiversity Convention (Earth Summit1992).
Ans. The Convention on Biological Diversity (CBD) defines biodiversity as "the
.. variability among living organisms lI·OIn all sources including, inter alia, terrestrial,
o marine and other aquatic ecosystems and the ecological complexes of which they are
d part; this includes diversity within species, between species, and of ecosystems."
~
Convention
on
Biological
Diversity,
also
called Biodiversity
Treaty,
international treaty. The convention was opened for signatures at the United Nations
Conference on Environment and Development, or Earth Summit, in June 1992 and
entered into force in December of that year. The parties to the convention include
some 190 countries (though not the United States) and the European Union.
The Convention has three main goals: They are
• The conservation of biological diversity (or biodiversity);
• The sustainable use of its components; and
• The fair and equitable sharing of benefits arising from genetic resources.
The Convention was opened for signature at the Earth Summit in Rio de
Janeiro on 5 June 1992 and came into force on 29 December 1993. It has two
supplementary agreements.
• The Cartagena Protocol and
• Nagoya Protocol
Objectives of this Convention: Its objective is
• To develop national strategies for the conservation and sustainable use
of biological diversity,
• The fair and equitable sharing of the benefits arising from commercial
• Other utilization of genetic resources. The agreement covers all ecosystems,
species, and genetic resources.
JB SERIES
17
18~
'-'
The goal of the biodiversity focal area strategy is to maintain globally significant
biodiversity and the ecosystem goods and services that it provides to society.
Hist«
TlA.41
direct
15. Kyoto Protocol
Thk
1997.
'-'•
ADS. The Kyoto Protocol is an international agreement that aimed to manage and
reduce carbon dioxide emissions and greenhouse gases. The Protocol was adopted at a
conference in Kyoto, Japan. in 1997 and became international law on February 16,
2005.
hel'-"I
The Protocol operationalised the United Nations Framework Convention on
the en'
Climate Change (UNFCCC). 192 nations committed to reduce their emissions by an '
~
average of 5.2% by 2012, which would represent about 29% of the world's total,
emissions.
eco~1
Countries that ratified the Kyoto Protocol were assigned maximum carbon
emission levels for specific periods and participated in carbon credit trading. Ir;a
country emitted more than its assigned limit, then it would receive a 10\\ er emissions
limit in the following period.
'j
Developed Vs Developing Nations
Recognizing that developed countries are principally responsible lor the current lev~Js
of GHG emissions as a result of more than 150 years of unmitigated industrial activity,
the Protocol placed a heavier burden on them. 37 industrialized nations plus the EU
were mandated to cut their GHG emissions, while developing countries were asked to
voluntarily comply; more than 100 developing countries, including China and India,
were exempted from the treaty.
The Protocol separated countries into two groups:
• Annex I contained developed nations, and
The, til
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• Non-Annex I contained developing countries.
Emission limits were placed on Annex I countries only. Non-Annex) ,
countries could invest in projects to lower emissions in their countries. For
projects, developing countries earned carbon credits that they could trade or sell to
developed countries, allowing the developing nations a higher level of maximlf~
carbon emissions for that period. This effectively allowed developed countries
continue emitting GHGs.
Why did the US not sign the Kyoto Protocol?
The US dropped out of the agreement in 2001, calling the treaty unfair because it mandated only developed countries to reduce emissions, and felt that doing so would
hinder the US economy.
envir~
J~' intemC'lti
16. Johannesburg
Convention
20021 Earth Summit
Ans. The United Nations World Summit on Sustainable
Development,
called Earth Summit 2002, was an international convention on the environment
sustainable development
held in Johannesburg, South Africa, on August 26
September 6,2002.
gover~
17.
NhI
any
ac:
establiSJi
dispos\.t
compens
[jNii\Cj~jviLI"IKllKVV
Historical Background and Scientific Foundations:
The international environmental policies established by Earth Summit 2002 were a
direct result of ideas produced by previous international environmental conferences.
The most notable of these previous conferences are:• United Nations Conference on the Human Environment.
• United Nations World Commission on Environment and Development.
• United Nations Conference on Em ironment and Development.
The United Nations Conference on the Human Environment (lJNCHE).
held in Stockholm, Sweden, in 1972. was the first major international conference on
The Declaration of the Conference noted that population growth. dev eloping
economies, and technological and industrial advancements harmed the environment. .
The declaration asserted
that every human has the right to a clean and healthy
humans have the responsibility to manage wildlife and their
To further these goals, the declaration
pollution into the environment. It also requested
ial and technological support to developing
developing nations to grow their economies
sought an end to the discharge of
that industrialized nations to provide
nations. Such support would enable
in an environmentally
responsible
In August and September 2002, representatives from 193 nations attended
: the 'World Summit on Sustainable Development in Johannesburg, South Africa, the
follow-up conference to Earth Summit 1992. The United States
controversially did not participate in the World Summit on Sustainable Development..
The Johannesburg Declaration also requests that nations implement measures
eliminate or minimize all threats to sustainable development, including drug use,
terrorism, corruption, ethnic intolerance, and the effects of natural disasters.
.....
Earth Summit 2002 produced more than 300 partnership initiatives on the
and sustainable development. Partnership initiatives are not multi-lateral
vu,~J treaties;
they are agreements between two or more governments, non~""WJjl<u.. organizations .
w~ .. ·......
. This Act is to provide damages compensation for strict liability arising out of
accident occurring while handling any hazardous substance and for the
lishment of a National Environment Tribunal for effective and expeditious
sal of cases arising from such accident, with a view to giving relief and
. -·"¥''''U('U.LJ'VU for damages
to persons, property and the environment and for matters
,",UIllle:CH:d therewith or incidental there to.
JB SERIES
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For,
Procedure and powers of Tribunal:
On receipt of an application under sub-section of section 4, the Tribunal may. after
such inquiry as it may deem fit, reject the application summarily.
The Tribunal may, after giving notice of the application to the owner and alter giving
the parties an opportunity of being heard, hold an inquiry and may make an award
determining the amount of compensation.
•
The Tribunal shall not be bound by the procedure laid down by the Code or
Civil Procedure, 1908. but shall be guided by the principles of natural justice.
The Tribunal shall have the following powers, while trying a suit, in respect of
the following matters. namely:-
o\..e
c~
•
'-'•
\.r
•
• Summoning and enforcing the attendance of any person and examining
him on oath;
• Requiring the discovery and production of documents;
• Receiving evidence on affidavits;
•
Subject to the provisions of sections 123 and 124 of the Indian Evidence
Act, 1872, requisitioning any public record or document or copy of such
record or document from any office;
• Issuing commissions for the examination of witnesses or documents;
• Reviewing its decisions;
•
•
• Dismissing an application or default or deciding it ex parte;
• Setting aside any order of dismissal of any application for default or any
order passed by it ex parte; and
• Any other matter which is to be, or may be, prescribed.
• Shall have power to regulate its own procedure including the fixing of
places and times of its inquiry.
I
Thus the national environmental
to the aggrieved persons.
18. Public Nuisance
tribunal exercises its jurisdiction
provides relief
V
19. IC
ADs·a
role PTa
Ans. A public nuisance generally refers to any conduct that interferes with the rights Indiav
of the public. A public nuisance is an unreasonable, unwarranted, or unlawful litigati9
interference with a right common to the general public. In general, public nuisanc~S tnoreV
threaten a community's health, safety, or overall welfare. Common types of.rubh~ concernnuisance include pollution, drug activity, explosives storage, and possessIOn 0
dangerous
animals.
11
The term public nuisance covers a wide variety of minor crimes that threaten the healt Muni~
h, morals, safety, comfort, convenience, or welfare ofa community. Violators may be esta~l~
punished by a criminal sentence, a fine, or both. A defendant may also be required to r
emove a nuisance or to pay the costs of removal.
c
o
c
ENVIRONMENTAL
LAW
For example: A manufacturer who has polluted a stream might be fined and might als
o be ordered to pay the cost of cleanup. Public nuisance interferes with the public as a
class, not merely one person or a group of citizens.
No civil remedy exists for a private citizen harmed by a public nuisance.
Public nuisances may interfere
with public health, such as :-
•
Keeping of diseased animals or a malarial pond.
•
Shooting fireworks in the streets. storing explosives, practicing medicine witho
ut a license, or harboring a vicious dog.
Examples of nuisances
•
Houses of prostitution,
nsed prizefights.
that interfere
with public morals.
illegal liquor establishments,
Gaming
houses. and unlice
even if
Examples of nuisances threatening the public conveniencenuisance,
his or her harm was greater than the harm suffered by others;
Obstructing a highway or creating a condition to make travel unsafe or highly d
isagreeable are a criminal prosecution is the exclusive remedy. However. if the i
ndividual suffers harm.
• That is different from that suffered by the general public, the individual
may maintain a tort action for damages.
For example, if a culprit has thrown a large boulder onto a public highway,
•
Those who use the highway cannot maintain a nuisance action for the
inconvenience. However, a motorist who is injured from colliding with the
boulder may bring a tort action for personal injuries.
•
Some nuisances can be both public and private in certain circumstances
e public nuisance substantially interferes with the use of an individual's
adjoining land.
whereth
For example, Pollution of a river might constitute both a public and a private n
uisance. This is known as a mixed nuisance.
19. PIL for Environmental
Protection
Ans. The most characteristic feature of the Indian environmental law is the important
role played by the public interest litigation. A majority of the environment cases in
India since 1985 have been brought before the courts as writ petitions. Public interest
. .
is a result of the relaxation of the locus standi rules. This form is usually
efficient in dealing with environmental cases, for the reason that these cases are
iconcem-a with the rights of the community rather than the individual.
In the case of Ratlam Municipal Council Vs. Vardhichand,
where the
body of the city of Ratlam, had failed to perform its duty of ensuring
ishment of a proper drainage system on the grounds of paucity ( lack)of funds,
Supreme Court had introduced the concept of PIL for the first time and had
·''''ILlU.1
JB SERIES
71
\.,
The t
So\..r1
observed that a responsible Municipal Council constituted for the precise purpose of
preserving public health, cannot escape from its primary duty by pleading financial
inability.
Peo-il
ba~
ToO
Ever since then, the Indian Judiciary has been evolving old principles and
formulating new ones to meet the need of the hour. A perfect example is the case of
M. C. Mehta v. UOI,(AIR 1987 SC ] 086) where an oleum gas leak at an industrial
plant in the capital city of Delhi in the year 1985 had led to the death of a person and
had raised serious health issues in the general populous. In this case, the Supreme
Court had introduced the doctrine of .Absolute Liability' o? the user of hazardous
material, thereby eroding the possibility of the offending party taking any defense to
wriggle out of its accountability. This rule was evolved from the established principle
of ' strict liability' .. In Tarun Bharat Sangh. Alwar Vs. Union ofIndia.
20. Endangered
2lV
Af\..,'
Smith
in f\..,g
and R,
~
Species
aff~
OCCl'r~
Ans. An endangered species is a kind of plant or animal at risk of going extinct.
Species become endangered for two main reasons.
• First, their habitat may disappear.
• The second way is if their population is too small.
Loss of Habitat:
A loss of habitat can happen naturally. For exam pie, dinosaurs lost their habitat about
65 million years ago. Scientists believe an asteroid hit the Earth. It blasted dust into
the air. Less sunlight reached plants, so they died. The air grew cooler. These changes
killed off the dinosaurs, experts think.
Today, humans cause a lot of habitat loss. They cut down forests. They tum fields into
farms. These changes affect wild species that live there. It may destroy the foods some
animals need. There may not be safe places to raise young. Without a healthy habitat.
So some plants and animals may become endangered.
Loss of genetic variation
It can occur naturally. Cheetahs are a threatened species native to Africa and Asia.
These big cats have very little genetic variation .. They cannot adapt to changes in the
environment as quickly as other animals, and fewer cheetahs survive to maturity.
Cheetahs are also much more difficult to breed in captivity than other big cats, such as
lions. Because of this genetic variation some species are disappearing.
The Red List
The aim of the International Union for Conservation of Nature IUCN Red List is to
convey the urgency of conservation issues to the public and policy makers, as well as
help the international community to reduce species extinction.
Protecting Endangered Species
Why is it important to know if a species is endangered? If people know, they can t~e
action. They can pass laws to stop hunting. They may stop people from destroYIng
important habitats. Some species have survived because humans helped.
env?Pt')
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andi~
22. P<J
Ans·c
Econom
poIlu\,
the proc
on
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ENVIRONMENTAL
LAW
The brown pelican is a good example. This seabird lives on the coasts of North and
South America. In 1970, there were only 10,000 left. It was listed as vulnerable.
People took action. They raised baby pelicans and released them into the wild: They
banned cheJ11ical~ that ~ar~ed the birds. The number of brown pelicans climbed .
Today, it is sate trom extmction
21. Acid Rains
Ans. The phrase a.cid :ain ~as first used in 1852 by Scottish chemist Rob~rt A~~us
Smith during hIS mvestIgation
of rainwater chemistry near industnal
CltI~S
in England and Scotland. The phenomenon became an important part of his book AIr
and Rain.
IIowever, that acid rain Was recognized as a regional environmenta.l issue
affecting large areas of Western Europe and eastern North America. Acid ram also
occurs in Asia and parts of Africa, South America. and Australia. As a global
environmental issue, it is frequentty overshadowed by climate change.
Acid rain. also called acid precipitation or acid deposition, precipitation possessing
a PH of about 5.2 .or below. primarily produced from the emission of sulphur
dioxide (S02) a~d nitrogen OXides (NOx; the combination of NO and N02) ~r?m
human
activitIes,
mostly
the combustion of fossil
fuels.
In
acid-senSItIve
landscapes, aci~ deposition can
reduce
the
pH
of
surface waters and
lower biodiversIty.
It weakens trees and increases their susceptibility to damage from othe~ str~ssors,
such as drough~, extreme cold, and pests. In acid-sensitive
areas, acid ram .also
depletes soil of llnpor~a~t plant nutrients and buffers, such as calcium and mag.nesmm,
and can release alum.mmm, bound to soil particles and rock, in its toxic dlssolve.d
form. Acid rain contnb~tes t? the corrosion of surfaces exposed to air pollution and IS
responsible for the deterioration of limestone and marble buildings and monuments.
Although the problem o~ acid rain has been significantly reduced in some areas,. it
remains an important environmental issue within and downwind from major industnal
and industrial agricultural regions Worldwide.
22. Polluter Pay Principle
Ans. The •polluter. pay' principle was first introduced by the Organization
of
Economic Cooper~tIOn and Development(OECD) in 1972. The report stated that t?e
polluter is responsible for the controlling and prevention of pollution associate~ ~Ith
the process of the factory. Pollutants were soon recognized by the W orId Commission
on Environment Development as a form of waste.
JB SERIES
1,,:
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------~----------------------------------------------------------EhIVikUj\jIVltl\j
IAL LAW
The 'polluter pay' principle essentially holds the polluter liable for the pollution
caused to the environment. The polluter is liable for every damage caused to the
environment. So according to the 'polluter pay principle', the polluter has to not only
compensate the victims of pollution but also compensate for the restoration of
environmental degradation caused Under 1972 and 1974 GECD Recommendation
(1)(2). the measures to be taken by the polluter for controlling the pollution is decided
by public authorities so that the environment is inacceptable state post the industry
operation. Therefore, the polluter bears the cost of health hazard caused to. the public
as well as the cost of restoration of the environment.
In other words. the costs of the measures should reflect on the cost of the goods and
services. the production and/or consumption of which led to pollution. The cost of the
measures should not be accompanied by the subsidies as it would lead to distortion in
international trade and investment.
In th.
tr~
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court
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The polluter pays principle is part of a set of hroader principles to guide sustainable
development worldwide The 'polluter pay' principle forms a part of the environmental
law ofIndia.
23. Public Trust Doctrine
Ans. The Public Trust Doctrine is the principle that certain resources are preserved for
public use, and that the government is required to maintain them for the public's
reasonable use.
The Public Trust doctrine didn't exist in India as a doctrine but it came through a
landmark judgement which was M.C Mehta vs Kamalnath.
M.e Mehta v. Kamalnath
The public trust doctrine first alluded in India through this landmark case. This case-is
also known as SPAN Motel case. In this case, a PIL challenged the minister of
environment Mr.Kamalnath [respondent] who allowed SPAN Motel company to
construct a hotel near the mouth of river Beas in Himachal Pradesh and also allowed
the company to change the course of the river for the construction by blasting the river
bed. The construction of the hotel was planned on land which was taken on a 99 years
lease from the government. It was allowed by the ministry as well as the gram
panchayat of that area.
The supreme court held that" the public trust is more like an order for the state to use
the public property for public purposes. It is the duty of the state to protect the
environment, lakes and public heritage and it can be only abdicated in a rare case
when it is inconsistent with the public trust.
The court asked the company to pay compensation
environment of that area under the polluter pay principle.
M.l. Builders Pvt. Ltd. v. RadheyShyamSahu
for the restoration
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In the case of M.1. Builders Pvt. Ltd. v. RadheyShyamSahu the court covered Public
trust doctrine under the right to life and stopped the construction of the shopping
complex in the place of a public garden stating the garden as a public resource. The
court observed that the park is a public place with historical importance. The court
cited Public trust doctrine and M.C. Mehta case as a precedent. The court stated that
allowing the construction will deprive the public of the quality of life as stated under
Article 21 ofthe constitution.
Conclusion .Thc \\ ord . Environment' has too many meanings and it is a difficult job
to define it. Even the environmentalists who work in this direction are not able to
define it. For many centuries we have changed the environment according to. us and it
is proved that it is malleable. But there is a limit and we have seen the changes in
environment like pollution, change in vegetation and food chain, climate change,
vanishing wetlands. We. humans. have destroyed the environment.
24. Climate Change
Ans.Climate change refers to long-term shifts in temperatures and weather patterns. These
shifts may be natural, such as through variations in the solar cycle. But since the 1800s,
human activities have been the main driver of climate change. primarily due to burning
fossil fuels like coal, oil and gas.
Burning fossil fuels generates greenhouse gas emissions that act like a blanket wrapped
around the Earth, trapping the sun's heat and raising temperatures.
Examples of greenhouse gas emissions that are causing climate change include carbon
. dioxide and methane. These come from using gasoline for driving a car or coal for heating
a building, for example. Clearing land and forests can also release carbon dioxide.
Landfills for garbage are a major source of methane emissions. Energy, industry, transport,
buildings, agriculture and land use are among the main emitters.
Many people think climate change mainly means warmer temperatures. But
temperature rise is only the beginning of the story. Because the Earth is a system, where
everything is connected, changes in one area can influence changes in all others.
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The consequences of climate change now include, among others, intense droughts,
water scarcity, severe fires, rising sea levels, flooding, melting polar ice, catastrophic
storms and declining biodiversity.
People are experiencing climate change in diverse ways
Climate change can affect our health, ability to grow food, housing, safety and work.
Some ofus are already more vulnerable to climate impacts, such as people living in small
island nations and other developing countries. Conditions like sea-level rise and saltwater
intrusion have advanced to the point where whole communities have had to relocate, and
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"climate refugees ,. is expected to rise.
25. Right to Development
Ans. As recognized by article 1 of the 1986 declaration. it is both a group right of
peoples and an individual right The right to development is an inalienable human right
by virtue ofwhich every human person and all peoples are entitled to participate in,
contribute to. and enjoy economic. social, cultural and political development, in which
all human rights
and fundamental freedoms can be fullv. realized.
~
All human beings have a responsibility for development. individually and
collectively, taking into account the need for full respect for their human rights and
fundamental freedoms as well as their duties to the community. which alone can
ensure the free and complete fulfilment of the human being, and they should therefore
promote and protect an appropriate political, social and economic order for
development.
States have the right and the duty to formulate appropriate national
development policies that aim at the constant improvement of the well-being of the
entire population and of all individuals, on the basis of their active, free and
meaningful participation in development and in the fair distribution of the benefits
resulting there from.
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The realization of the right to development requires full respect for the
principles of international law concerning friendly relations and co-operation among
States in accordance with the Charter of the United Nations.
States have the duty to co-operate with each other in ensuring development
and eliminating obstacles to development.
26. Article 21 of the constitution
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•
The human person is the central subject of development and should be the
active participant and beneficiary of the right to development.
States have the primary responsibility for the creation of national
international conditions favourable to the realization of the right to development.
•
- Right to life.
Ans. Right to life. ( Article 21 ): 'Everyone has the right to life, liberty and the
security of person.' The right to life is undoubtedly the most fundamental of all rights.
Article 21 applies to natural persons. The right is available to every person, citizen or
alien. Thus, even a foreigner can claim this right.
The fundamental right to life and personal liberty which has become an
inexhaustible source of many other rights and mentioned under the following subheads
Right to life: The Right to life under Article 21 means1. A life of dignity to live in a proper and healthy environment.
2. The maintenance of various things like:
• Health
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ENVIRONMENTAL LAW
26
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Proper sanitation system, and
Preservation of environment comes under the purview of the Article 21.
Right to live with Human Dignity:
• Right against sexual harassment at workplace :In the case of Vishakha vs.
the State of Rajasthan. the court declared that sexual harassment of a working
woman workplace amounts to a violation of rights under Art ic lcs 14. 15 and 21
of the Indian Constitution.
• Right to know or right to be informed: In the case or Reliance
Petrochemicals Ltd. \'S. Proprietors of Indian Express Newspctpers that right to
know falls under the scope of Article 21
• Right of prisoners: . Even though he is deprived of his -othcr rights. hut he is
entitled to the rights
guaranteed under Article 21.
....
....
• Right against illegal detention: In the case of Rudul Shah l'S. the State of
Bihar, the petitioner was kept injail for 14 years even after his acquittal and he
was awarde 35000 rupees as compensation.
• Right to Legal Aid: In the case of Khatri vs. the State ofBihar, te Supreme
Court held that the trial court is under the obligation to inform the accused of
his right to free legal aid.
• Right to speedy trial: The Indian Judiciary in the case of HussianaraKhatoon
vs. the State of Bihar. it was held that the right to speedy trial is an inalienable
right under Article 21 of the Indian Constitution.
• Right to compensation: In the case of Rudul Shah vs. the Stale of Bihar, the
petitioner was kept in jail for 14 years even after his acquittal and he was
awarde 35000 rupees as compensation.
• Right to Privacy: In the recent and the most debated case of Justice KiS.
Puttuswamy (Retd.) vs. Union of India and Other, the Supreme Court's 9 judges
constitutional bench held privacy to be a fundamental right under the
Constitution of India.
• Right to die with dignity: Supreme Court oflndia held in the case of Common
Cause vs. Union of India that right to die with dignity is a fundamental right.
• Right to choose a life partner : Every citizen is free to choose his/ her
partner.
. The right to life and liberty as envisaged under Article 21 of the
Co~stitution is meaningless unless it encompasses within its sphere individual dignity.
Article 21 weaves a string of an endless yarn.
27. Transboundary
Pollution
. Transboundary pollution is the pollution that originates in one country but is able
cause damage in another country's environment, by crossing borders through
ways like water or air. Pollution can be transported across hundreds and even
,-'V'Yi3ClUU::S of kilometers. This is why it is called 'Transboundary Pollution'.
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The most common interpretation of trans boundary pollution is that it is
pollution not contained by a single nation-state, but rather travels across national
borders at varying rates. The concept of the global commons is important to an
understanding of trans boundary pollution.
As both population and production increase around the globe, the potential for
pollution to spill from one country to another increases. Transboundary pollution can
take the form of contaminated water or the deposition of airborne pollutants across
national borders.
Transboundary pollution can be caused by:
•
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Catastrophic events such as the Chernobyl nuclear explosion.
• It can also be caused by the creeping of industrial discharge
that eventually has
a measurable impact on adjacent countries
It is possible that pollution can cross state lines within a country and would
indeed be referred to as transboundary pollution. This type of case is seldom held up
as a serious policy problem since national controls can be brought to bear on the
responsible parties and problems can be solved within national borders. It is good to
understand how interstate environmental problems might develop and to have
knowledge as to those regulatory units of national government that have jurisdiction.
Ans. ,
28. Noise pollution
Co~c
Ans. Noise pollution, also known as environmental noise or sound pollution, It is an
invisible danger. It cannot be seen, but it is present nonetheless, both on land and
under the sea. Noise pollution is considered to be any unwanted or disturbing sound
that affects the health and well-being of humans and other organisms.
Causes for traffic
•
•
noise pollution
Traffic sounds street from cars, buses, pedestrians, ambulances etc.
airports, with constant elevated sounds from air traffic, i.e. planes taking off or
landing
• workplace sounds, often common in open-space offices
• constant loud music in or near commercial venues
• industrial sounds like fans, generators, compressor, mills
• train stations traffic
• household sounds, from the television set to music playing on the stereo or
computer, vacuum cleaners, fans and coolers, washing machines, dishwashers,
lawnmowers etc.
•
events involving fireworks, firecrackers, loudspeakers
etc.
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Human Diseases Caused by Noise Pollution
• Hypertension is, in this casco a direct result of noise pollution caused elevated
blood levels for a longer period of time.
• Hearing loss can be directly caused by noise pollution,
• Sleep disturbances are usually caused by constant air or land traffic at night.
• Child development. Children appear to be more sensitive to noise pollution.
which may lead to heari ng .
• Various cardiovascular dysfunctions. Elevated blood pressure caused by noise
pollution, especially during the ni&ht.can lead to various cardiovascular
diseases.
Tips for Avoiding Noise Pollution
• Wear earplugs whenever exposed to louder noise levels
• Maintain a level of around 35 dB in your bedroom at night, and around 40 dB in
your house during the day as Ell" removed
• Avoid prolonged use of earphones, especially at high volume .etc.
29. Coastal Eco systems
Ans. A coastal ecosystem is an area where land and water come together.
Coastal ecosystems provide habitat for a wide variety of marine plants and animals
as well as provide resources and homes to humans around the world.
Coastal ecosystems have distinct and recognizable land forms such as beaches, cliffs
and coral reefs which are highly vulnerable to disturbances. Coastal regions
represent some of the highest biodiversity areas on the planet. The Andaman and
Nicobar Islands in the Indian Ocean are the location of a biodiversity hotspot.
The coral reefs there boast as many different species of marine living things as
a tropical rainforest. Unfortunately, degradation of the coastline is leading to habitat
destruction and irreversible damage to coastal communities.
Coastal Ecosystem Characteristics
Coastal ecosystems include highly biodiverse marine communities that vary
depending on local topography and climate.
Examples of coastal ecosystems: Bays, estuaries, mangroves, salt marshes and
wetlands.
Many fish, turtles and migratory birds nest in coastal areas because of the large
amount of food and also because they are protected from some of the dangers of the
deep ocean. These communities are very sensitive to disturbances caused by human
activity, natural disasters and the introduction of invasive species.
The organisms that live in coastal areas are able to thrive because of the availability
of sunlight and a sustained supply of nutrients. The shallow waters of coastal
ecosystems allow sunlight to penetrate to the ocean floor where nutrients from dead
organisms can collect and support life.
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30. What do you know about environment?
Ans. Meaning of Environment:
Environment refers to the natural surroundings and
conditions in which we live. Unfortunately, this Environment has come under serious
threat. This threat is almost entirely due to human activities. These human activities have
certainly caused serious damage to the Environment. Most noteworthy, this damage risks
the survival of living things on Earth. Therefore, there is an urgent need to save the
Environment
Environment can be defined as a sum total of all the living and non-living
elements and their effects which influence human life. While all living or biotic
elements are animals, plants, forests, fisheries, and birds, etc. The non-living or abiotic
elements include water, land, sunlight. rocks, and air, etc.
Environment can be classified into 3 kinds. They are
Natural environment:
It includes natural resources, the earth's surface, mountains,
plains, land, water, deserts. storms. cyclones, volcanoes, oceans. climatic factors. and
so on. It is also used to refer to biological situations such as complexities associated
with plants and animals. The sustainability of the natural resources is known to
contribute towards the economy of a country.
Man-Made
Environment
/ Social environment:
This environment
includes
authorities, universities, schools, companies and other establishments along with their
output legal and their communication ways .. It can further be divided into two:
• Inner Environment
•
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Outer Environment
The Inner Environment :1t is a social environment and it exists as long as a
particular society exists. It pertains to the regulations, traditions, organizations and
institutions. It involves customs and folkways which is existent in every human
group. It is addressed with names such as non-material culture, social heritage etc.
This heritage is essential for the social life of humans to flourish; it is known to
have an influence on an individual's life. The altered form of the economic and
physical environment - artificial environment, are seen as two different aspects of
the man-made environment.
The Outer Environment
: Through advancement in the field of science and
technology, humans have attempted to alter conditions of their physical environment.
This outer environment is as a result of these modifications which includes modern
infrastructure in cities, our homes and their associated amenities, our modes of
communication and transport, our resorts to conveniences and luxury, different kinds
of industry manufacturing luxurious commodities, electrical appliances and so on
which ultimately aims at civilization and urbanization.
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The inner and the outer environments
are correlated and hence inseparable.
Within the territory ofIndia or under the control of the Government
of India.
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Functions of Environment
1. Supply of Resources
• The environment offers resources for production.
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• It includes both renewable and non-renewable resources.
Eg: Wood for furniture, soil, land, etc.
2. Sustains Life
• The environment includes the sun, soil, water, air which are essential for human
life.
• It sustains life by providing genetic and biodiversity.
3. Assimilation of Waste
• Production and consumption activities generate waste.
• This occurs mostly in the form of garbage.
• The environment helps in getting rid of the garbage.
4. Enhances Quality of Life
• Man enjoys natural beauty like rivers, mountains, deserts, etc.
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What is the need for Conservation
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and protection
of environment.
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Ans. Conservation of environment simply indicates the sustainable use as well as
management of natural resources which include wildlife, water, air, and earth deposits.
~
There are renewable and non-renewable natural resources. Conservation of natural
heIr
resources generally focuses on the needs and interests of human beings, for instance
the biological, economic, cultural and recreational values.
,~ Protection of environment: Environmental protection refers to any activity to maintain
or restore the quality of environmental media through preventing the emission of
pollutants or reducing the presence of polluting substances in environmental media.
Environmental protection is the practice of protecting the natural environment by
individuals, organizations
and governments.
This has been recognized,
and
governments have begun placing restraints on activities that cause environmental
degradation.
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10 easy ways you can help our environm ent
•.
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Keep your garden or green space chemical free. Cut down on your use of
herbicides and pesticides ....
•
Don't buy single-use plastics
•
Shop locally, shop organically
•
Record the wildlife near you
•
Re-use and Recycle ....
•
Reduce your carbon footprint. ...
•
Avoid peat-based composts ....
•
Plant pollinator-friendly
.
.
.
plants .
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Ways of Saving Environment
•
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Planting trees should be given massive attention. Growing more trees increases
the amount of oxygen in the environment
The government must launch programs to conserve the forests. The government
must and must make harming forests a criminal offense.
There must be control oflandslides. floods, and soil erosion for Soil
conservation
The government must ensure to clean the streets and other polluted land areas
and wastes should be properly disposed.
To reduce air pollution in cities electric people use electric cars instead of fu
Chemicals and pesticides should be avoided in agriculture.
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Benefits of Saving Environment
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•
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•
•
The world climate will remain normal and would reduce global warming.
Conserving the Environment would certainly improve the health of people. Most
noteworthy. saving Environment would reduce many diseases.
Extinction of many species will not take place due to saving Environment. Many
endangered species would also increase in population.
The water level would rise.
Conclusion: Environment is a precious gift on this planet. Our Environment
big danger. Probably, it is the biggest concern of Humanity right now.
is facing a
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32. Write an essay on Ancient
Indian approach
to environment
\J
protection.
Ans. In the early periods of human history, environment strongly determined the lives
and activities of the people. They were very much close to forest and natural resources as
we
find
in
historical
documents.
Ancient
Indian
texts
Arthasatra,
SathapathaBhrahmanas,
Vedas, Manusmruthi,
Bruhat - Samhitha,
Ramayana,
Mahabharata
and Rajatharangini reflected the concepts of forest ecology and
conservation in a sustainable manner. In the Indus Valley civilization, several
characteristics of the city planning and
social structure showed environmental
awareness. The presence of leaves, wild animals like peacock and one -horned deer,
tigers elephants, bulls in the seals and the mud pots can indicate the pattern of
biodiversity in those areas.
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In Rigveda, it has been mentioned that there are five elements which give basis to life
and these elements are Earth, Water, Fire, Space and Air. The Rigveda makes a clear
reference to the presence of a protective layer which we know now to be the ozon~
layer that filters the harmful rays of the sun and protects the earth. In Yajurveda, 1t
has been mentioned that yajna be performed by offering butter and firewood into the
sacrificial fire so that it mixes in the atmosphere and makes the environment free froIIl
impurities.
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Manusmriti mentions about the optimum use of the resources of nature and also
prescribes different punishment for causing injury to plant. .
d
The State wets required to maintain forests fines were imposed for cutting tr~es ;n r
damaging forests, forest reserves were for wild animals and they would be kille 0
bound in outside the reserve forests when harmful.
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33. Discuss the causes for Environmental degradation/ pollution and its effects.. t
Ans. Environmental degradation means reduction in the quality of the environme.~
due to manmade and natural factors. The resources uct depleted and the quality of all,
water and soil diminishes. The natural habitat. th~ forests, the water sourc~s. gets
destroyed and polluted. It is caused directly or indirectly by anthropogenic activItIes.
Kinds of Pollution
I. Land Pollution
2. Water Pollution
3. Air Pollution
CAUSES OF ENVIRONMENT
DEGRADATION
Intensive agricultural practices:
Since the most modern techniques of farming are used to fulfill the growing demand,
widespread use of chemical fertilizers and pesticides are used. So a lot of toxins get
accumulated in the soil owing to its degradation.
. I
• Landfills:
. Landfills are the breeding grounds of diseases. Various kinds of toxic chemica .l
and fouls smell expelled from landfills. This causes widespread environmenta
degradation.
• Over population :
OVerpopulation leads to over use of land and resources. Large scale
deforestation is taking place as more land is needed for building houses and
industries. Land, air and water pollution is complementary to overpopulation.
All these factors degradate the environment.
• Deforestation:
'1
Drastic environmental changes like climate changes, global warming,
erosion, depletion of ozone layer, water table depletion, species extinction
loss in biodiversity and all are the result of deforestation.
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• Environmental pollution :
The toxins emitted from landfills, vehicles, industries and so on gets absorb~d
into the atmosphere and the ph level gets disrupted. This in tum causes acid ralll
which harms the biodiversity.
Natural causes:
Wildfires, landslides, cyclones, tsunami, earthquakes, volcanic eruptio.ns,
hurricanes and so on are some of the natural factors that attribute to degradlllg
the environment.
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Unplanned development:
Industrial sites, shopping malls, office spaces, parking grounds, road and rail
networks, construction sites, mining projects, thermal plants, nuclear plants and
all are the major factors that help in worsening environmental pollution.
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~
Effects of Environmental
degradation / pollution
The following are the effects of environmental degradation.'
Atmospheric changes:
These atmospheric changes
in turn increase global warming that can prove harmful
the generations to come. The rate of depiction of ozone layer multiplies rapidly
owing to environment degradation.
Human health:
This environment degradation has a negative impact on health of humans as the
quality of air diminishes, lots of people die due to chronic diseases like lung cancer
and heart attack.etc.
Biodiversity lost:
Due to continuous degradation of the environment. the natural habitat, the forests,
and the ecosystem get disrupted. Most of the species are under the threat of
extinction ..
CONCLUSION;. The environment that we live in can be disturbed completely
owing to severe changes. This can prove to be a threat to the upcoming generations.
So the national and the international government should work together for a noble
cause to save the environment.
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34. What are the Common Law remedies against pollution Ans. Remedies available under common law against Environmental Protection are
a. Nuisance: Nuisance is related to unlawful interference with one's enjoyment of
land or any right arising from it, thereto. It may be categorized into:
• Public Nuisance
• Private Nuisance.
Public Nuisance: Public nuisance deals with interference with a right pertaining
to public. There are a few remedies available public nuisance in Criminal
Procedure Code, 1973. Section 91 prescribes that a suit may be filed to obtain a
suitable relief or injunction for any cause of action affecting or likely to affect
public nuisance.
Private Nuisance: Private Nuisance is interference with right which is
exercised exclusively by a private entity or an individual.
Negligence: It is a point to note that in order to bring a successful action
against negligence, it is necessary to establish a direct nexus (connection)
between negligence and the damage caused. The other ingredient th~t
constitutes negligence is that the respondent did not take sufficient care to aVOid
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public nuisance that the person was required to take such care under the law.
In NareshDuttTyagi Vs. State of Uttar Pradesh. fumes released from the
pesticides leaked to a nearby property through ventilators that resulted in the
death of three children and fetus in a pregnant woman. It was held by the court
that it was a clear-cut case of negligence.
Trespass: It is an unlawful interference with another's possession of property. The
primary ingredient to establish a case of trespass is that there should be an
intentional invasion of another's physical possession of property. Thus, two
primary ingredients to establish a case of trespass are:
• There should be intentional interference
• Such interference should be direct in nature
Strict Liability
The concept or strict liability started from the case of Rylands v. Fletcher. "the person
who, for his own purposes, brings on his land and collects and keeps there anything
likely to do mischief, if it escapes, must keep it in at his own peril and if he does not
do so, is prima facie answerable for all the damage which is the natural consequence
.of its escape'" Case law: M.C.MehthaVs Union Of India popularly known as Oleum
Gas Leak Case. In this case, the Hon'ble Supreme Court observed that if a hazardous
or inherently dangerous activity is being carried out in any premises and in case of a
release of such toxic substance any damage is caused, such enterprise is strictly and
absolutely liable for all the damages arising thereto, and any of the exceptions listed
out above are not applicable as a defense in a case of strict liability.
In addition to this, the court also held in the Union Carbide Corporation v. Union of
India that the compensation has to be directly proportional to magnitude and capacity
of the enterprise because such compensation needs to have a deterrent effect.
The exceptions to the rule of strict liability are as follows:
•
•
•
•
•
Act of God
Act committed by a third party
Any fault committed by plaintiff himself
An act committed after obtaining expressed or implied consent of the plaintiff.
Natural use of land by the defendant
Penal Provisions for Environmental
Protection
• Section 268 of the Indian Penal Code, 1860, defines the term public nuisance
and section 290 of the IPC makes public nuisance punishable. Thus, under these
provisions if any act or omission causing injury to any person by polluting the
environment takes place, the same can be subjected to prosecution.
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Noise pollution is also punishable under Section 268 of IPC. In K Ramkrishnan
v. State of Kerala., the court held that smoking in public place comes under the
category of public nuisance. It is punishable under section 290 of Indian Penal
Code.
•
Also, in Murli S. Deora v. Union of India, the Supreme Court held that under
Article 21. smoking in public place is a violation of fundamental right of those
who don't smoke.
•
Sections 269 to 271 deal with negligent acts which are likely to spread infection
of diseases dangerous to the lite of people. These acts are punishable under
sections 269 to 271. The punishment provided u/s 269 and 271. is imprisonment
up to six months or tine or both.
•
Section 277 can be used for preventing the water pollution. Under section 277
punishment of imprisonment is up to three months or a tine up to 500 Rupees or
both.
•
Apart from these. under section 426, 430. 431 and 432 of IPC, pollution caused
by mischief is also punishable.
There are two primary legislations that enlist penal provisions. They are
• The Water (Prevention and Control of Pollution) Act, 1974,
• Environment (Protection) Act, 1986.
According to Section 47 of The Water Pollution Act, a person is vicariously liable for
the offence committed by the company if such person is in charge of the functions
committed by the company or for conduct ofbusiness of the company.
Conclusion :There are more than enough legislations that try to deal with the menace
of environment degradation. To deal with the same, there is a need for a strong
integrated legislation that can provide a much clearer and integrated approach which
can provide the necessary protection to environment.
35. Explain the administrative
efforts to combat the hazards of noise pollution.
Ans. Exposure to loud noise can also cause high blood pressure, heart disease, sleep
disturbances, and stress. Noise pollution also impacts the health and well-being of
wildlife.
Some engineering controls so that the workers are exposed to less noise.
For example: using screens, barriers, enclosures and absorbent materials help to
reduce workers' noise exposure.
• separating the noisy area from other workspaces by a sound-reducing partition
• enclosure of noisy machinery with sound-absorbing material
• avoiding metal-to-metal contact by using plastic bumpers
• fitting sound-absorbing materials to hard reflective surfaces
• using conveyor belts rather than roller
• repairing and replacing loose rotating parts, worn bearings and gears
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ENVIRONMFNTAI
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• using sound-absorbing material on walls, ceiling and floors to reduce the noise
level due to reverberation.
Administrative controls
• Identifying hearing protection zones and clearly sign-posting noisy areas
• increasing the distance between noise sources and workers the further away the
noise source is. the less harmful its effect on workers will be
• Organizing schedules so that noisy tasks are performed when as few people as
possible are present.
• Minimizing the number of individuals working in a noisy area keeping
individuals out of the area if their job does not require them to be there
• limiting the time workers spend in noisy areas by job design and job rotation
• providing rest breaks in areas away from a noisy work enviro.
If the control measures are not working effectively, employers should review their
noise risk management programme and make further improvements in noise risk
controls.
Measures to be taken to reduce the sound pollution on roads
• Noise from roadways and other urban factors can be mitigated by urban
planning and better design of roads.
•
Roadway noise can be reduced by the use of noise barriers, limitation of
vehicle speeds,
• alteration of roadway surface texture,
• limitation of heavy vehicles,
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• use of traffic controls that smooth vehicle flow to reduce braking and
acceleration, and tire design.
•
•
•
••
1.
•
•
• Aircraft noise can be reduced by using quieter jet engines. Altering flight
paths and time of day runway has benefited residents near airports.
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36. Write about the laws relating to the preservation, conservation and
protection of forests.
Ans. The forests are called the lungs of the environment. They are a factory
of oxygen and various other very important natural resources. Can humans live without
their lungs? Similarly, the environment too would not survive without forests.
Indian Forest Act, 1927
The Indian Forest Act, 1927 was passed in 1927 which overrode all previous laws
making them invalid. This Act empowers the government to take authority of private
forests owned by private owners if it is "needed for a public purpose" as given under
section 4 (Land Acquisition Act, 1894).
Cons of Indian Forest Act, 1927
This Act emphasized on:
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1. Extensive cutting down of trees legally.
2. Making profit from selling the trees and the products made out of it.
It deprived the poor and tribal sections of the society of their ancestral and acquired
lands. This Act paved a way for the government to make profit out of the forests by
legally using its authority over people thus making them helpless and needy. Even
after independence, the profit oriented attitude continued.
Forest Conservation Act, 1980:
This Act came to be known as Forest Conservation Act 19S0. This was mainly to
conserve more forest areas. This Act achieved the following:
,
• This Act reduces the diversion of forest areas to non forestry use which is in the
interest of our ecosystem.
• It checked the rapid conversion of forest land or resources into profit making
sources to maintain a proper balance between rational requirements of the
country and the conservation of forests.
• The Forest (Conservation) Act, 1980 has successfully brought down the average
annual rate of diversion of forest land for non-forestry purposes from about 1.
37 lakh hectare per annum to 0.37 lakh hectare.
• As per this Act, whenever a forest area needs to be granted approval for
diverting it to non-forestry purposes, the same proportion of forest land has to
be identified for compensatory afforestation.
• Forest Right Act, 2006
The government in order to redress the injustices done to the forest dwelling
communities since colonial times, enacted a law called the Forest Rights Act. Some
basic features of the Act are as follows:
1. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Rights) Act was enacted on 18th December, 2006 and it came into force
January 1, 2008.
2. It aims at protecting the rights of forest dwelling communities by giving them
access to forest land and resources and hence conserving their lands.
3. It gives them the title over their lands to protect their culture and tradition by
recognizing their community ownership over a larger landscape.
37. Explain the law relating to the wild life and endangered species, marine life,
coastal ecosystems and lakes etc.
Ans. The Wild Life Protection Act, 1972 is an Act of the Parliament of India enacted
for protection of plants and animal species. Before 1972, India had only five
designated national parks. Among other reforms, the Act established schedules of
protected plant and animal species; hunting or harvesting these species was largely
outlawed.
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Salient features of the Act:
• The Act provides for the protection of wild animals, birds and plants; and for
matters connected there with or ancillary or incidental thereto.
• It extends to the whole ofIndia.
• It has six schedules which give varying degrees of protection.
• Schedule I and part II of Schedule II provide absolute protection
• Offences under these are prescribed the highest penalties.
• Species listed in Schedule III and Schedule IVare also protected. but the
penalties are much lower
• Schedule V includes the animals which may be hunted.
• The specified endemic plants in Schedule VI are prohibited from cultivation'
and planting. The hunting to the Enforcement authorities have the power to
compound offences under this Schedule (i.e. they impose fines on the
offenders).
Up to April 2010 there have been 16 convictions under this act relating to the death
of tigers.
Article 48 of the Constitution of India says, "The state shall endeavor to
protect and improve the environment and to safeguard the forests and wildlife of the
country" and Article 51-A states that "it shall be the duty of every citizen of India to
protect and improve the natural environment including forests, lakes. nvers, and
wildlife and to have compassion for living creatures".
38. What are the Salient features of the Prevention of Cruelty to Animals Act,
1961
Prevention of cruelty towards animals.
Ans. Animals, similar to human beings, have the capability of feeling physical and
mental pain. Therefore, they can understand the severity of any physical or mental
harm that is inflicted on them. This earth belongs to them as much as it belongs to us
human beings. Thus, it is imperative that other living creatures are allowed to live and
thrive just like us.
With this vision, the Prevention of Cruelty Act, 1960 was passed; purporting
to punish severely the persons indulging in cruelty against the animals, the
establishment of an animal welfare board, identifying the acts amounting to cruelty
against the animals, etc.
Salient features of the Prevention of Cruelty to Animals Act, 1961
1. This act provides for punishment for causing unnecessary cruelty and
suffering to animals.
2. This act defines animals and different forms of animals.
3. This Act enshrines the provisions relating to the establishment of an animal
welfare board, its constitution, powers, and functions.
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ENVIRONMFNTAI lAW
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4. This act discusses different forms of cruelty, exceptions, and killing of a
suffering animal in case any cruelty has been committed against it, so as to
relieve it from further suffering.
5. This act provides the guidelines relating to experimentation on animals for
scientific purposes.
6. This act enshrines the provisions relating to the exhibition of the performing
animals, and offences committed against the performing animals.
7. This Act provides for the limitation period of 3 months beyond which no
prosecution shall lie for any offences under this Act.
•
•
•
According to Section 2(a) of this Act: animal refers to any living creature excluding a
human being. For animals, it refers' not solely to animals, but also includes birds,
reptiles, etc.
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Example: tigers, deers, cheetah, dogs, cats, buffaloes, snakes, lizards, alligators,
crocodiles, elephants. etc.
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Section 4 to 10 of this Act enshrines the prOVISIOnsrelating to the constitution,
funding, and functioning of the animal welfare board. Which consists of DirectorGeneral of Forests to the Government of India, ex officio and some other members
appointed by the Central government.
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39. What is Pollution and what are the related Acts to control it ?
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Ans. Pollution is the process of making land, water, air or other parts of the
environment dirty and not safe or suitable to use. This can be done through the
introduction of a contaminants into a natural environment as any solid, liquid or
gaseous substance which may tend to be injurious to the environment.
Article Sl-A of the Constitution imposes as one of the fundamental duties of every
citizen, the duty to, protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living creatures. The
Parliament enacted following Acts to control the pollution.
The Water ( Prevention and Control of Pollution ) Cess Act of 1977And amended Act
1988.
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Some important provisions of this Act are given below:
• The Act vests regulatory authority in State Pollution Control Boards to establish
and enforce effluent standards for factories.
• The Act grants power to SPCB and CPCB to test equipment and to take the
sample for the purpose of analysis.
•
• The 1988 amendment act empowered SPCB and CPCB to close a defaulting
industrial plant.
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• The Water Cess Act was passed to generate financial resources to meet expenses
of the Central and State Pollution Boards.
• The Act creates economic incentives for pollution control and requires local
authorities and certain designated industries to pay a cess (tax) for water effluent
discharge.
• To encourage capital investment ill pollution control, the Act gives a polluter
(factory or Industry) 70% rebate of the applicable cess upon installing effluent
treatment equipment.
The Air (Prevention and Control or Pollution) Act of 1981 and amendment, 1987.
Important provisions of this Act are gi\ en below:
• The Air Act expanded the authority of the central and state boards
established under the Water Act, to include air pollution control.
• States not having water pollution boards were required to set up air pollution
boards.
• Under the Air Act, all industries operating within designated air pollution control
areas must obtain a "consent" (permit) from the State Boards.
• The states are required to prescribe emission standards for industry and
automobiles after consulting the central board and noting its ambient air quality
standards.
• The Act grants power to Sl'Cll and to test equipment and to take the sample for
the purpose of analysis from any chimney, fly ash or dust or any other.
• The 1988 amendment act empowered SPCB and CPCB to close a defaulting
industrial plant.
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• Notably, the 1987 amendment introduced a citizen's suit provision into the Air
Act and extended the Act to include noise pollution.
Environment ( Protection) Act 1986
• In the wake of the Bhopal tragedy, the government ofIndia enacted the
Environment Act of 1986.
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• In this Act, main emphasis is given to "Environment", defined to include water,
air and land and the inter-relationships which exist among water, air and land and
human beings and other living creatures, plants, micro-organisms and property.
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• "Environmental pollution" is the presence of pollutant, defined as any solid,
liquid or gaseous substance present in such a concentration as may be or may tend
to be injurious to the environment.
•
•
•
•
• "Hazardous substances" include any substance or preparation, which may cause
harm to human beings, other living creatures, plants, microorganisms, property or
the environment.
• Through this Act Central Government gets full power for the purpose of
protecting and improving the quality of the environment.
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40. Environment
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control mechanism.
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Ans. The environment is described as everything that makes up our surroundings that
affects our ability to live on the earth. that the air we breathe, the water that covers
most of the earth's surface. the plants and animals around us, and much more. To
control environmental pollution
The Environment Conservation Act 73 of 1989 Act
was passed.
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The Environment Conservation Act 73 or 1989 provides for the prohihition of
littering on any land or water surface except in a container or a place set apart
for that purpose in section 9.
•
The Act ensures that adequate and suitable containers or places are provided
for the discarding of litter by the puhlic. An amendment to the Act has made
provision for the compulsory charging on waste types.
• The Health Act 63 of 1977 also provides for the measures to be taken by the
local authorities in order to maintain hygienic and clean condition and prevent
any form of pollution in its district.
• The National Road Traffic Act. Act 93 of 1996 provides that no person shall
operate or permit to be operated on a public road a vehicle causing noise'
• The Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36
of 1947 control the use of pesticides in South Africa
• The Occupational Health and Safety Act 85 of 1993 provide regulations for
noise in the workplace and focuses on the health and safety issues affecting
employees in the workplace.
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In India, to control vehicular pollution:
•
•
•
•
•
It was advised that the use of lead in gasoline should be banned;
There should be uniform fuel quality and emission standards across India;
Private vehicles should be banned from using diesel
Manufacturing of diesel fuelled cars should be banned
A national task force should be established to develop the use of hydrogen gas
as an alternative fuel for cars
There are different Acts also passed in India for the purposes of pollution control such
as;
•
Environment
•
Protection Act of 1986,
• National River Conservation
•
•
•
Plan,
Water (Prevention and Control of Pollution) Act of 1974,
Central Pollution Control Board and State Pollution Control Boards.
•
Conclusion: An integrated pollution control approach is needed to solve the problems
and each legislation should be explicit and state categorically what it seeks to do.
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41. What are the Salient features of The Environment (Protection) Act, 1986.
Ans. The Environment
(Protection) Act, 19X6 authorizes the central government to
protect and improve environmental quality. control and reduce pollution from all
sources, and prohibit or restrict the setting and lor operation of any industrial facility
on environmental grounds .. It consists of 4 Chapters and 26 sections. It provides for a
framework that aids the coordination betw ccn the state and central authorities
established under previous environmental laws.
Salient features of the Act
The most prominent features of the Act are enumerated as follows:
Under the Act, the Central Government is empowered to
•
Coordinate the actions of State governments. authorities, and officers.
•
Plan as well as execute national programs on the prevention, management,
ahatement of environmental pollution.
•
Restrict areas where industries or their processes can or cannot be carried out.
•
Examine processes,
pollution.
•
The Act empowers common citrzens to approach the Courts after a 60-day
notice has been furnished to the competent authorities.
•
It bars the discharge and emission of any environmental pollutant beyond the
standard limits by any person carrying industrial operations.
•
Stringent penalties have been prescribed for transgressing
Act.
•
Under the Act, the person in charge of a place is obligated to inform the
appropriate authorities of any accidental discharge of pollutants exceeding the
specified limits. Once informed these authorities will take requisite remedial
steps to mitigate the pollution caused and the expenses for the same would be
recoverable from the polluter subject to interest.
•
The officers empowered by the Central Government can take samples of air,
water, soil, or any other substance from any factory or premises for analysis.
•
This Act provides for the establishment of environmental laboratories that work
to protect the environment and people from contamination.
•
The jurisdiction of Civil Courts has been barred under this Act.
substances,
and materials
and
liable to cause environmental
any provisions of this
Its objectives:
•
The main objective of this Act is to "provide for the protection
improvement of the environment and all matter connected with it."
• It also aims to provide
deterrent
environment, health, and safety.
punishment
and
to those who endanger
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Landmark cases made under it
Some of the landmark cases under the Environment (Protection) Act, 1986 can be
specified as under:
• M.C. Mehta v Union of India, AIR 1997 SC 734 (Taj Trapezium Case)
This is the Taj Trapezium case. It arose out of a writ petition tiled before the Supreme
Court. regarding the yellow color of the marble of the TajMahal caused due to air
pollutants and industrial emissions in the area. The Supreme Court relied on its
previous judgment in Vellore Citizens Welfare Forum v Union of India. The Apex
Court gave several directions banning the use of coal and cake in the Taj Trapezium. It
also encouraged the use of Compressed Natural Gas (CNG).
• M. C. Mehta v Union of India, 1997 11 SCC 312 (Groundwater
Case)
Depletion
In this case, the petitioner M. C. Mehta tiled a petition before the Hon'ble Supreme
Court of India over the depleting groundwater levels in the country. A near-crisis
situation had developed in many parts of the country and there was no authority to
keep a proper check on it. Thus, the Supreme Court directed the Central Government
to make the Ground Water Board into an 'authority' under the Environment
(Protection) Act 1986. It was bestowed with legal powers so that it can issue licenses
and act against polluters.
• Indian Council for Enviro-Legal Action v Union of India, AIR 1996 SC
1446
The Supreme Court, in this case, put to use the "Polluter-Pays" principle which means
that those who pollute must pay the costs of preventing and repairing the damage due
to the pollution that was caused by them. The Court gave directions to the Central
Government to recover the amount from the defaulters in the case.
• Tarun Bharat Sangh v Union of India, AIR 1992 SC 514
In this case, the Supreme Court banned the mining activities undertaken inside the
Sariska Wildlife Sanctuary, as they went against a notification issued by the Central
Government under Section 3 of the Environment (Protection) Act, 1986.
Conclusion; The protection of this environment is, thus, everyone's responsibility.
The contribution of all individuals - by developing a sense of environmental
consciousness and sensitivity - is needed.
42. Composition of National environment Tribunal. Explain in detail.
Ans. Establishment of National Environment Tribunal: The Central Government shall,
by notification, establish a Tribunal, to be known as the National Environment
Tribunal, to exercise the jurisdiction, powers and authority Conferred on it by or under
this Act. 9. Composition of Tribunal and Benches thereof.
(1) The Tribunal shall consist of a Chairperson and
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(2) Such number of Vice-Chairpersons, Judicial Members and Technical
Members as the Central Government may deem tit.
Qualifications of the National Tribunal Members:
Chairperson Who
•
•
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• for at last is, or has been, a Judge of the Supreme Court or a High
Court; or
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c.
• Has. held the office of Vice-Chairperson two year.
Vice-Chairperson: Who
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ENVIRONMENTAL LAW
• Is, or has been, a Judge of a High Court: or
• Has, held the post of a Secretary to the GO\ ernmcnt of India or any other
post under the Central or a State Government
• Has, for at least five years held the post of an Additional Secretary to the
Government of India or any other post under the Central or a State
Government;
• Has adequate, knowledge of, or experience in. legal, administrative, scientific
or technical aspects of the problems relating to environment;
• Has for at least three years, least three years. held office as a Judicial Member
or a Technical Member
Judicial Member :Who
• Is, or has been, or is qualified to be, a Judge of a High Court;
• Has been a member of the Indian Legal Service and has held a post in grade I
of that Service for at least three years.
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Technical member: Who
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• Has adequate knowledge of, or experience in, or capacity to deal with,
administrative, scientific or technical aspects of the problems relating to
environment.
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• Subject to the provisions of subsections (6) and (7).
The Chairperson, Vice Chairperson and every other Member. of the
Tribunal shall be appointed by the President. No appointment of a person possessing
the qualifications specified in this section as the Chairperson or the Vice-Chairperson
shall be made except after consultation with the Chief Justice of India. .No
appointment of a person as a Judicial Member or a Technical Member shall be made
except on the recommendation of a Selection Committee appo inted by the Central
Government.
43. What is National Environmental Appellate Authority Act 1997?
Ans. The National Environment Appellate Authority Act, 1997, under which the
National Environment Appellate Authority can hear appeals regarding the
restriction of areas in which any industries, operations or processes or class of
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industries, operations or processes shall not be carried out or shall be carried out
subject to certain safeguards under the Environment (Protection) Act, 1986.
On receipt of an appeal preferred
•
The Authority
appellant.
•
The Authority shall dispose of the appeal within ninety days from the date of
tiling the appeal; Provided that the Authority may for reasons to be recorded in
writing, dispose of the appeal with a further period of thirty days.
PROCEDURE
•
under sub-section:
shall pass such orders as it thinks fit, after hearing
AND POWERS
to
the
OF AUTHORITY
The Authority 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
and subject to the other provisions of this Act and of any rules made by the
Central Government while trying a suit
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The pleadings, all orders and other proceedings of the Authority may, at the
option of the Authority, be in English or in Hindi.
• The head quarters of the Authority shall be at Delhi.
ADJOURNMENT:- The Authority may adjourn the hearing of the appeal and
intimate the parties to appear on the next date
• CLUBBING OF APPEALS: Appeals against a common order, can be clubbed
and heard together by the Authority.
Conclusion : Thus any person aggrieved by an order granting environmental
clearance in the areas in which any industries, operations or processes or class
of industries, operations and processes shall not be carried out, prefer an appeal
to the Authority in such form as may be prescribed and get relief.
44. What are liabilities of multinational
companies?
Ans. Multinational corporations, public entities and individuals face a growing
number of environmental threats and challenges. Risk management is the process
whereby risks are identified, assessed and prioritized. Insurance companies have
expertise in this discipline. Environmental risks continue to have a strong impact on
companies from both emerging threats and from legacy liabilities. Insurance
companies can offer products and services to assist companies with managing these
environmental exposures.
.
Liberty'S Contractor's Pollution Liability policy helps protect a contractor from third
party claims arising from pollution caused by their activities at a third party site, and
can be written on a practice or project-specific basis.
The real challenge is how to attain global competitiveness and economic growth
without compromising the ecological balance. The way out is to achieve sustainable
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ENVIRONMENTAL
46
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development through CSR. The major fields in which CSR can playa crucial role to
address the challenges of globalization in India are social, environmental, global
governance and economic sectors.
Around the world, young people are demanding a sustainable and safe way of living
and doing business. Companies will change. The business sector must urgently
recognize, acknowledge and act upon its global responsihilities.
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45. What is Stockholm Declaration on Human Environment,
Ans. The United Nations Conference on the Human Environment. having met
at Stockholm from 5 to 16 June 1972, to inspire and guide the peoples of the world in
the preservation and enhancement of the human environment.
The meeting agreed upon a Declaration containing 26 principles concerning the
environment and development; an Action Plan with 109 recommendations, and a
Resolution.
Principles of the Stockholm Declaration:
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Human rights must be asserted, apartheid and colonialism condemned
Natural resources must be safeguarded
The Earth's capacity to produce renewable resources must be maintained
Wildlife must be safeguarded
Non-renewable resources must be shared and not exhausted
Pollution must not exceed the environment's capacity to clean itself
Damaging oceanic pollution must be prevented
Development is needed to improve the environment
Developing countries therefore need assistance
Developing countries need reasonable pnces for exports to carry
out environmental management
Environment policy must not hamper development
Developing countries need money to develop environmental safeguards
Integrated development planning is needed
Rational planning should resolve conflicts between environment and
development
Human settlements must be planned to eliminate environmental problems
Governments should plan their own appropriate population policies
National institutions must plan development of states' natural resources
Science and technology must be used to improve the environment
Environmental education is essential
Environmental research must be promoted, particularly in developing countries
States may exploit their resources as they wish but must not endanger others
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• Compensation is due to states thus endangered
• Each nation must establish its own standards
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There must be cooperation on international issues
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International organizations should help to improve the environment
Weapons of mass destruction must be eliminated
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One of the seminal issues that emerged from the conference is the recognition for
poverty alleviation
for protecting
the environment.
The Indian Prime
Minister Indira Gandhi in her seminal speech in the conference brought forward
the connection between ecological management and poverty alleviation.
The Stockholm Conference motivated countries around the world to monitor
environmental conditions as well as to create environmental ministries and agencies.
Despite these institutional accomplishments, including the establishment of UNEP,
the failure to implement most of its action programme has prompted the UN to have
follow-up conferences.
The succeeding United Nations Conference on
convened in Rio de Janeiro in 1992 (the Rio Earth
on Sustainable Development
in Johannesburg
Conference on Sustainable Development (Rio+20)
declaration of the Stockholm Conference.
Environment and Development
Summit), the 2002 World Summit
and the 2012 United Nations
all take their starting point in the
The Stockholm Declaration provided a foundation for many of the environmental
policies that have been established in the 113 participating countries. Additionally, the
core principles presented in the declaration and the discussions that led to it sparked
the creation of the United Nations Environmental Programme, which has subsequently
developed more specific protocols to protect the environment.
IV}
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46. What is the role of UNEP for the protection of environment?
Ans.
A major goal of the United Nations Environment Programme (UNEP) is to
catalyze and encourage
international
and national action for more effective
management of the environment.
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There are three fundamental tasks associated with this goal:
•
Identification
assessment;
of
major
environmental
problems
through
environmental
•
Promotion of solution to these problems, and prevention
effective environmental management; and
•
Measures to support the functional tasks of assessment and management, for
which education, training and information are important and indispensable
tools.
of new ones, through
The fundamental principle of UNEP's catalytic action in the area of
environmental education is based on the need to ensure that the environmental
dimension is adequately covered in education programmes. Actions within the
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FNVIRONMFNTAt LAW
functional tasks of environmental assessment and management are expected to
identify and produce environmental materials which should be reflected in educational
curriculum content and methodology.
UNEP's mission is "to provide leadership and encourage partnership in caring for
the environment by inspiring, informing, and enabling nations and peoples to improve
their quality of life without compromising that of future generations." develops
international agreements and national environmental instruments .
•
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1. There was a massive escape of the lethal MIC gas from the Bhopal plant into
the atmosphere, resulting in death and injury to innocent and helpless persons
living in the city of Bhopal. Advise Bhopal plant.
• Facts in Issue:
• There was a massive escape of the lethal MIC gas from the Bhopal plant.
• It resulted in death and injury to innocent and helpless persons
living in the city of Bhopal.
• Issues in the case:
1. What is the liability of Bhopal plant?
Principle: The principle of absolute liability is similar to strict liability. In the case of
strict liability, a person keeps something dangerous with him. and he knows that even
the slightest mistake would cause a release of that thing resulting in the death of
human beings. So, even if he took proper care and caution but still the thing escaped
resulting in the death ofa man, he can be held liable under strict liability.
The principle of strict and absolute liability differ only at one point. While on
one hand under strict liability, a person is having options to escape the ability so arisen
but, on the other hand under absolute liability a person has no such options available.
Case Law: Rylands Vs. Fletcher
Judgement: In the given case after the propagation of the rule of Absolute liability,
the Bhopal plant is liable for the Gas leak and has to pay compensation to the effected
people.
2. A religious procession was carried out by using loud speakers in residential
locality which caused inconvenience to new infants, patients and aged persons.
Advise the residents.
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Facts in Issue :
• A religious procession was carried out in residential localities.
• They used loud speakers in that procession.
• It caused inconvenience to new infants, patients and aged persons
•
Issues in the case:
1. What can the residents do to avoid such in convenience in future?
• Principle: According to The Noise Pollution (Regulation and Control) Rules,
2000 a loudspeaker or a public address system shall not be used except after
obtaining written permission from the authority and the same shall not be used at
night i.e. between 10.00 p.m. and 6.00 a.m.
Loudspeakers and amplifiers or other equipments or gadgets which
produce offending noise once detected as violating the law, should be liable to be
seized and confiscated by making provision in the law in that behalf.
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Judgement: It is the duty of each of us to fight the menace of noise pollution.
When specific instances occur, we must not hesitate to get in touch immediately
with Police as well as the Pollution Control Board who have the mandate to enforce
the law.
So in the case also the locality residents should complain to police as well as
the Pollution Control Board who have the mandate to enforce the law.
3. State Government grants permission to construct residential apartments at
sea coastline in violation of coastal zone regulation. An NGO wants to initiate
action. Advise.
• Facts in Issue:
• State Government grants permission to construct residential apartments.
• Those apartments are situated at sea coastline.
• It is violation of coastal zone regulation.
• An NGO wants to initiate action.
• Issues in the case:
1. Is it correct to State Government to grant construct permission for construction of
residential apartments at sea coastline?
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Principle: The Ministry of Environment and Forests (MoEF) issued a notification
in 1991, under the Environment Protection Act of 1986, to regulate the activities in
coastal areas. As per this notification, the coastal land up to 500 meters from the
High Tide Line (HTL) and up to 100 meters along banks of creeks, estuaries,
backwater and rivers subject to tidal fluctuations, has been defined as falling under
the Coastal Regulation Zone (CRZ). Under the CRZ notification, HTL is the line on
land up to which the highest tide reaches during spring tide and LTL is line on land
up to which the lowest tide reaches during spring tide.
The following activities are not permitted in all the CRZ areas, with a few exceptions
for certain places, for which prior permission from the MoEF ( Ministry of
Environment and Forests) is required.»
•
•
•
•
•
Setting up and expanding fish processing units
Discharging of untreated waters from industries and human settlement
Dumping of ash or any way
Construction activities in ecologically sensitive areas.
Any construction between LTL and HTL except facilities for carrying treated
effluents and waste discharges, oil, gas and similar pipelines and dressing or
altering of sand dunes, hills natural features including landscape changes for
beautification, recreational and other such purposes. Etc.
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Judgement: Yes. An NGO can file a PIL under artic1e 226 in the State High Court
for the cance11ation of permission granted by the State Government to construct
residential apartments in sea coastline.
4. A part of the land of the Zoological garden, Calcutta was allotted by the
Government of West Bengal to the Taj group of hotels for construction of a Five
Star Hotel. Advise.
• Facts in Issue:
1. The Ca1cutta Govt. allotted the land of the Zoological garden to the Taj group of
hotels for construction of a Five Star Hotel.
Issues in the case:
• Whether the government of West Bengal was arbitrary and unreasonable in
allotting land for construction of a five-star hotel and not inviting tenders for the
same?
Principle: The main zoo is in the Forty nine acres block ofland.
The said part of allotted land was outside the Zoological garden and separated from
it by a 80-100 feet road and is also known as the Begumbari land. The Begumbari land
was given to the Zoological garden under the following terms and conditions which
were agreed by the zoological garden in charge Committee .The conditions of the
transfer were:
• "that the land is to be used for the purpose of acclimatization only;
• that Carnivores are not to be kept on any part of it, on any 'account;
• that the grounds are to be kept clean and neat;
• that the land must be restored to the government if hereafter required, the
Zoological Garden Committee being reimbursed for any expenditure they may
have incurred in building there." In this eight acres of land there are some old
buildings and the vacant land was used for fodder cultivation, for raising flower
nursery, as a sumping ground for huge garbages and as burial ground for dead
animals.
Judgement:
As per the above last condition the land must be restored to the
government if hereafter required. Hence in the given case the Govt. has every right to
allot to the Taj Group Hotels by paying reasonable compensation to the zoological
garden committee if any.
5. State Government issued a notification prohibiting all students from using
private transport for going to and from their educational institution. They are
required to only use public transport as that would reduce pollution. Students
and parents allege that this notification violates their personal liberty. Discuss.
•
Facts in Issue :
• State Government issued a notification prohibiting all students from using
private transport for going to and from their educational institution.
• They are required to only use public transport as that would reduce
pollution.
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Students and parents allege that this notification violates their personal
liberty.
Issues in the case:
• Does the notification prohibiting all students from using private transport
for going to and from their educational institution violates their personal
liberty?
• Principle: The life and personal liberty of a person can be deprived only in
accordance with the procedure established by law. Procedure established by law
refers to the law which is duly enacted hy the Legislation. The Executive has no
authority to deprive a person fr0111this right.
Judgement: As per the above principle the state government cannot prohibit all
students from using private transport for going to and from their educational
institution. Yes it violates their personal liberty to use their own vehicles for their
transport.
•
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6. A Municipal Corporation has initially embarked a land for public park in its
master plan. Later, the municipal corporation proposed to transfer the same
land for the construction of a private nursing home. Discuss the legality of the
decision.
Facts in Issue:
• lA Municipal Corporation has initially embarked a land for public park in its
master plan.
• Later, the municipal corporation proposed to transfer the same land for the
construction of a private nursing home.
• Issues in the case:
• Is it legal to transfer the embarked for public park land for the
construction of a private nursing home
• Principle: A private nursing home cannot be a substitute for a public park. No
town planner would prepare a blueprint without reserving space for it. Emphasis on
open air and greenery has multiplied and the city or town planning or development
Acts of different States require even private house owners to leave open space in
front and back for lawn and fresh air. In 1984 the BD Act itself provided for
reservation of not less than 15 per cent of the total area ofthe layout.
In the case of M.I. Builders Pvt. Ltd. Vs. RadheyshamSahu& others, , the Apex
Court while considering the action of the Municipal Corporation in handing over
the Jhendawala Park, Lucknow, to a private builder for construction of an airconditioned underground shopping complex (Palika bazar), held that by allowing
construction the Corporation had deprived the quality of life to residents and others
of that area.
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Judgement: Based on the above principle and Supreme Court's judgement in the
given case the proposal of Municipal Corporation to transfer the embarked land
for public park for the construction of a private nursing home is not legal.
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7. Government
intends to construct a nuclear power plant nearer to the sea
coast. There is lot of opposition from the local people to the nuclear power
plant. They argue that the nuclear power plant poses a threat to the forests
and migratory birds in the locality. Argue.
Facts in issue:
•
• Government intends to construct a nuclear power plant nearer
• There is lot of opposition from the local people to the nuclear
• They argue that the nuclear power plant poses a threat to
migratory birds in the locality.
Issues in the case:
• Are the local people correct in opposing the construction of
plant nearer to the sea coast?
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8. Municipal Corporation
of Hyderabad
has embarked a certain plot of land
measuring 20 acres for a public park and the same is also entered in the master
plan of the city. After ten years, due to financial crunch, the corporation
has
decided to sell 15 acres of the embarked
land to a business house centre for
construction of a shopping complex and the public park could be established in
the remaining 5 acres. Mr. 'X' wants to challenge this decision. Advise him.
•
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to the sea coast
power plant.
the forests and
Facts in issue:
Municipal Corporation of Hyderabad has embarked a certain plot ofland
measuring 20 acres for a public park and the same is also entered in the master plan
of the city.
After ten years, due to financial crunch, the corporation has decided to sell 15 acres
of the embarked land to a business house centre for construction of a shopping
complex.
And the public park could be established in the remaining 5 acres.
Mr. 'X' wants to challenge this decision.
Issues in the case:
• Does Mr. X succeed in his challenge?
• Principle:
The governing authority of any municipal corporation is authorized
to sell real property in established municipal industrial parks or in municipally
designated industrial development
areas for industrial development purposes
without regard to subsection (a) or (b) of this Code section
• Judgement
:Based on the above principle in the given case also Municipal
Corporation had every right to sell the embarked land to a business house centre for
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construction of a shopping complex and the public park could be established in the
remaining 5 acres. So Mr. X cannot succeed in his challenge.
•
9. A PIL was filed by an NGO in the ~igh. Court highlighting the mining
activities which have reduced the Mussone
hills of trees and forest cover and
accelerated soil erosion resulting in landslides and blockage of underground
water. The court ordered for the closure of polluting qUarries. Discuss.
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A PIL was filed by an NGO in the High COurt highlighting the mining
activities
•
The mining activities have reduced the MusSorie hills of trees and
forest cover
•
The mining activities also accelerated soil erosion resulting in landslides
and blockage of underground water.
•
The court ordered for the closure of polluting quarries.
Issues in the case:
1
Principle:
Is the court order correct for the closure of polluting qu .
arnes.
Negative Effects of Quarrying
.
•
Disfigures the Environment. Quarrying involves the production of waste materials.
Although some quarries do not produce ...
•
Noise Pollution. Quarrying produces a lot of noise.
•
Air Pollution. Dust produced during quarrying is a major Contributor to air'
pollution ..
•
Negative Impact on Health. Health is a crucial factor When it com t
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When people inhale dust.
Judgement: Basing on the above negative effects of quarrying activ'f
the court
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order of closure of polluting quarnes IS correct an JustIfied.
10. Devotional music i~ ~Iay.ed using !oud speakers everYday from 4am to I1pm
in a Temple. People living In the nelghbo~hood complained of Noise pollution.
Tille temple management argues that plaYIn~ devotional mUsic is a part of the
freedom of religion and hence cannot be curtaIled. Discuss.
•
Facts in Issue:
•
•
•
•
Devotional music is played using loud speakers every day.
Music is played every day 4am to llpm in a Temple.
People living in the neighborhood complained of Noise Pollution
The temple management argues that playing devotional music is a part of the
freedom of religion.
So people argued that it cannot be curtailed.
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Is it a part of the freedom of religion that playing devotional music in temples
in high volume?
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Principle: Those who make noise often take shelter behind Article 19(1)A
pleading freedom of speech and right to expression. Nobody can claim a
fundamental right to create noise by amplifying the sound with the help of
loudspeakers. While one has a right to play music in temples, others have a right
to listen or decline to listen.
• According to The Noise Pollution (Regulation and Control) Rules, 2000 a
loudspeakers which produce sound pollution not be used except after obtaining
written permission from the authority and the same shall not be used at night i.e.
between 1O.OOp.m. and 6.00 a.m.
Loudspeakers and amplifiers or other equipments or gadgets which
produce offending noise once detected as violating the law, should be liable to be
seized and confiscated by making provision in the law.
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Judgement:
Based on the above principle Nobody can claim a fundamental
right to create noise by amplifying the sound with the help of loudspeakers.
While one has a right to play music in temples, others have a right to listen or
decline to listen. So people living in the neighborhood can restrict the temple
management to reduce the volume of the loudspeaker while playing devotional
songs and also the timings of playing i.e., for limited hours.
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11. 'Z' company fails to comply with the rules of Air (Preventive and Control of
Pollution) Act, 1981. What action can be taken against the company?
•
Facts in Issue:
• Z' company fails to comply with the rules of Air (Preventive and Control
of Pollution) Act, 1981.
• Issues in the case:
• 1.What action can be taken against the company?
Principle: Whoever contravenes any of the provisions of this Act or any order or
direction issued there under, for which no penalty has been elsewhere provided in
this Act, shall be punishable with imprisonment for a term which may extend to
three months or with fine which may extend to ten thousand rupees or with both,
and in the case of continuing contravention, with an additional fine which may
extend to five thousand rupees for every day during which such contravention
continues after conviction for the first such contravention.]
Offences by com panies.Where an offence under this Act has been committed by
a company, every person who, at the time the offence was committed, was directly
in charge of, and was responsible to the company for the conduct of the business of
the company, as well as the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly: Provided that
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nothing contained in this sub-section shall render any such person liable to be
proceeded against and punished accordingly:
Judgement: Based on the above principle in the given case alsoevery person who,
at the time the offence was committed, was directly in charge of, and was
responsible to the company will be liable to be proceeded against and punished
accordingly.
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12. A Municipal Corporation issued a license for construction of buildings in
some municipal cities. A petitioner suspecting irregularity in issuance of license
applied for the copy of building plan and proceeding to grant license under the
constitutional provisions. Advise.
'
• Facts in Issue:
• A Municipal Corporation issued a license tor construction of buildings in
some municipal cities.
• A petitioner suspecting irregularity in issuance or license applied tor the
copy of building plan and proceeding to grant license under the constitutional
provisions.
• Issues in the case:
• Can a petitioner suspecting irregularity in issuance of license apply for the
copy of building plan and proceeding to grant license under the constitutional
provisions?
Principle: Right to Information (RTI) is an act of the Parliament of India which
s~ts out the rules and procedures regarding citizens' right to information. The RTI
BIU was passed by Parliament of India on 15 June 2005 and came into force with
~ffect from 12 October 2005. As per this Act any common man obtain the required
Information from government organizations by paying required fee.
Judgement: As per the above principle in the given case the petitioner can apply
for the copy of building plan and proceeding to grant license by Municipal
Corporation under the constitutional provisions i.e., RTI.
13. Bangalore Municipal Corporation failed to provide effective drainage
system in some areas of its jurisdiction, as a result of which waste water
accumulated on the streets and provide place for mosquito breeding. Suggest
approximate constitutional remedy to solve this problem.
Facts in issue:
• ~angalore Municipal Corporation failed to provide effective drainage system
III some areas of its jurisdiction.
• As a result of which waste water accumulated on the streets and provide place
for mosquito breeding
Issues in the case:
• What is the constitutional remedy to solve this problem.
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Principle: This case is identical to the case of Municipal Council, Ratlam
ShriVardhichand & Ors In this case. The residents (respondents) of a prominen~\
residential locality of the Municipality (petitioner) in their complaint under s. 133
Criminal Procedure Code to the Sub-Divisional Magistrate averred that the
Municipality had tailed despite several pleas, to meet its basic obligations, like
provision of sanitary facilities on the roads, public conveniences for slum dwellers
Judgement: Based on the above case the residents of affected areas in Bangalore also
should tile a case against Bangalore Municipal Corporation U / S. 133 Criminal
Procedure Code to the Sub-Divisional Magistrate.
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14. A multinational corporation set up a pesticide plant in an urban area. It stored
huge volume of poisonous gases required for pesticide production. But one fine
day, a terrorist planted a bomb in the factory, it exploded releasing the gases
killing thousands and injures many more. Is company liable for compensation?
• Facts in Issue:
• A terrorist planted a bomb in the factory.
• it exploded A multinational corporation set up a pesticide plant in an urban
area
• It stored huge volume of poisonous gases required for pesticide production
• But one tine day releasing the gases killing thousands and injures many more
•
Issues 'in the case:
o Is company liable for compensation?
Principle: In a tort, whenever the wrongdoer has done any wrong then he/she has to
provide compensation to the victim, this compensation, basically termed as a liability.
This liability is also known as the liability 'without fault'. In this, a person is liable
because he uses something Hazardous. When because of these types of things anyone
suffers from loss or damage then the wrongdoer is absolutely liable without any fault
at his or her part. This liability was primarily introduced by the Supreme Court of
India once the disreputable Bhopal gas tragedy of 1984.
Judgement :Based on the above principle in the given case also the Multination
Corporation is liable to pay compensation for the thousands of people who died and
injured in that bomb explosion in the company.
15. Fumes discharged from the smelter of mining company at trail (British
Columbia) had polluted the air on the American side of the border. US
complained this as a result of an agreement between the US and Canada for
the settlement of the dispute. Advise US.
Facts in Issue:
• Fumes discharged from the smelter of mining company at trail (British
Columbia).
• Fumes had polluted the air on the American side of the border.
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for the settlement of the dispute.
Issues in the case:
• What is the remedy for America for its air pollution?
Principle: The given case is identical to the case Trail Smelter Case (United
States v Canada.
Case details: In 1935 a Canadian based corporation (defendant) owned
a smelter plant which emitted hazardous fumes (Sulfur dioxide) that caused damage
to plant life, forest trees. soil, and crop. yields across the border in Washington State
in the United States (plaintitl).
The United States (P) sought damages from Canada by suing them to court and
also prayed for an injunction for air pollution in the state of Washington. by the
Trail Smelter, a Canadian corporation which is domiciled in Canada (D)
Trail smelter arbitration:
By looking at the facts contained in this case. the
arbitration held that Canada (D) is responsible in international law for the conduct
of the Trail Smelter Company and Canada had to pay the United States for
damages, and further that it was obliged to abate the pollution. In delivering their
decision, the tribunal made an historic and often-cited declaration: Under the
principles of international law, as well as of the law of the United States, no State
has the right to use or permit the use of its territory in such a manner as to cause
injury by fumes in or to the territory of another or the properties or persons therein.
Judgement: Based on the above judgement in the given case also Canada had to
pay the United States for damages, and further that it was obliged to abate
the pollution.
16. In Ratlam Municipal area, there was full garbage and public excretion etc. A
PIL was filed for the abatement of nuisance. Advise.
Facts in Issue :
• In Ratlam Municipal area, there was full garbage and public excretion etc
• A PIL was filed for the abatement of nuisance.
Issues in the case:
• What is the remedy for this nuisance ?
• Principle: Public health, sanitation conservancy, and solid waste management etc
are the main responsibilities of Municipal corporations. So residents of any
effected areas can file a case under Sec l33 of Cr.PCto the Sub-Divisional
Magistrate. Not only residents any person can file a public Interest Litigation (
PIL ) in the court.
• Judgement :Based on the above Principle in the given problem the person who
files the PIL will be successful in his attempt to get rid of their garbage and
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ENVIRONMEN fAL LAW
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excretion problem because the court will order the Ratlam municipality
needful immediately.
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17. Y Company fails to comply with the rules of Water Prevention and Pollution Act ,
1974. What action can be taken against the company?
• Facts in Issue:
• Company fails to comply with the rules of Water Prevention and Pollution Act,
1974.
• Issues in the case:
1. What action can be taken against the company?
• Principle: Who ever fails to comply with the provision or section 21, 22' or with
direction as per sec 31 (A) of Water Prevention and Pollution Act, 1974. shall be
punishable with minimum imprisonment of one and half year extending up to 6
years and with tine in case the failure continues, an additional fine extending to
5000 Rs for every day during which such failure continues. The above terms of
imprisonment
in extreme case may extend to seven years with fine.
Judgement: Based on the above principles in the given case Y company failed to
comply with the provision off section 21 , 22 or with direction as per sec 31 ( A).
Hence the Y company shall be punishable with minimum imprisonment of one
and half year extending up to 6 years and with fine.
18. Municipal
corporation of Hyderabad has earmarked
a certain plot" of land
measuring 20 acres for a public park and the same is also entered in the master
has
plan of the city. After ten years, due to financial crunch, the corporation
decided to sell 15 acres earmarked land to a business house for the construction
of a shopping
complex and the public park could be established
in the
remaining 5 acres. Mr. X wants to challenge this decision. Advice him.
Facts in Issue:
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measuring 20 acres for a public park and the same is also entered in the master
plan of the city.
•
After ten years, due to financial crunch, the corporation has decided to sell 15
acres of the embarked land to a business house centre for construction of a
shopping complex.
•
•
And the public park could be established in the remaining 5 acres.
Mr. 'X' wants to challenge this decision.
Issues in the case:
• Does Mr. X succeed in his challenge?
Principle:
The governing authority of any municipal corporation is authorized to
sell real property in established municipal industrial parks or in municipally
designated industrial development areas for industrial development purposes without
regard to subsection (a) or (b) of this Code section
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Judgement:
Based on the above principle in the given case also Municipal
Corporation had every right to sell> the; embarked land to a business house centre for
construction of a shopping complex and the public park could be established in the
remaining 5 acres. So Mr. X cannot succeed in his challenge.
20. A state government after long time of declaration of a sanctuary reduced the
area from 765 sq Kms to 440 sq kms on the ground of economic development of
the state. Advice.
Facts of the case:
• A state government after long time of declaration of a sanctuary reduced the area
from 765 sq kms to ,440 sq krns
• The State Government did so on the ground of economic development of the
state.
Issues in the case:
• Can the government reduce the area of sanctuary
Principle: The state government can fix and alter boundaries of the National Parks
and sanctuaries with prior consultation and approval with National Board of
Wildlife. There is no need to pass an act for alternation of boundaries of National
Parks.
Judgement:
As per the above principle in the given case the state government can
reduce the area 765 Sq Kms. to 440 Sq Kms. on the ground of economic
development of the state'.
21. In a residential locality A is involved in a business of loading, unloading and
stocking fodder. It has become health hazard to the residents of a locality, as the
whole atmosphere was polluted due to dust particles of the fodder. B as resident
of the locality approaches you. Advice him.
Facts of the case:
•
In a residential locality A is involved in a business of loading, unloading and
stocking fodder.
• It has become health hazard to the residents of a locality, as the whole
atmosphere was polluted due to dust particles of the fodder .
• B as resident of the locality approaches you .
Issues in the case :
•
What can B do as a resident of that locality?
Principle:
This case is similar to the case of Ajeet Mehtha V State of Rajasthan.
In Ajeet Mehta v. State of Rajasthan, it was complained by the petitioner that
the business involving loading, unloading and stocking of fodder had become serious
health hazard to the residents of the locality as the whole atmosphere was polluted
due to fine dust particles of the fodder, the inhaling of which caused number of
JB SERIES
passed an order under Section 133 of Cr.p.C.1
directing to remove the said business within 15 days from that place. The Rajasthan
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health problems. The City Magistrate
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High Court upheld the order of the Magistrate. The stand taken by the Court supports
the proposition that public health cannot be allowed to suffer on account of personal ~
interest involved in the business. It also fortifies that the right available to an ,i.·
individual to carry out any trade, business or calling under Article 19 (1 )(g) is
subject to considerations of public health.
Judgement: Based on the above case judgement in the given case B can tile a
petition in a city Magistrate court and can get the business removed from their
colony and can get rid of those health problems arise due to fine dust particles of
the fodder.
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