Gk. History of Assam 2
October 29, 2020
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GK. OF ASSAM 30 MCQ (1)
October 28, 2020
Here, is the guys the important 30 MCQ on general knowledge of Assam.
this questions are very important for all the competitive exams especially conducted by the Govt. of Assam . Please download this pdf from the link given below thank you.
CLICK HERE => 30 MCQ GK ASSAM
LIFE IN LAW SCHOOL
October 23, 2020
Life in Law School
Hello my friends,
you might have been searching in the internet, what kind of environment that you are going to have in your law school than I must tell you my friend that you are in the right place. So I will assure you that by the end of this post you will get the total overview of a law school or college, whatever you call it. I will tell you everything with my experiences of law school.
Well my friend if you are like me who has not planned me for future or if have not decided what to do in life after your +2 or after your graduation and than suddenly you join law course, than trust me you are definitely going to enjoy a lot your law school journey. Because, the way you have been studying so far is completely going to be different and I know you will going to love it.
Your opinion about your teachers is going to be changed. You are going to love the way of teaching of your teachers. And the most importantly the friends that you are going to get will be the best kind of , you will find them more ambitious and focused on their carrier, which will help you to find your goals as well. You will see all of your classmates are very confident and sophisticated and by seeing them, being with them eventually, you would end up trying hard to fit into their zone and you will start learning various soft skills from your classmate. Gradually you will notice a good change in your personality, you will see yourself as a better person than ever.
Regarding curriculum you will definitely find all the law papers interesting. You will end up loving the subject that you are studying , the thought which students generally have while they see the voluminous book, which will be contrary in your case. Earlier we you used to say that we don't feel like studying or find studies boring will be converted to I love studying. Studies will become your habit, your daily life which you will enjoy a lot.
Trust me when you get ready for your college you are going to look awesome on your new uniform. Everyone will start seeing you as a good person, and that will make you feel good about yourself and that is the development of your personality.
In law college you are going to attend various seminars and debates that will make you more confident it just that you need to come forward for that without thinking twice. and once you speak in front of your friend and faculty you will develop your good image in the college and that will make you more happy. As a result you will see a drastic change in your character as well.
The moot court class and competition is also very fun things to be done in your law school.
TO conclude this I will your life will be very different after your law school you will turn out to be more confident and ambitious person like never before. YOU WILL HAVE YOUR AIM OF YOUR LIFE AND YOU WILL GET TO KNOW YOUR CAPACITY ,STRENGTHS.
SO don't think too much go for it. It's a really worthy degree to be pursued.
JUDICIAL PROUNCEMENT HAVE UPLIFTED THE SCOPE AND AMBIT OF ART.21 OF THE CONSTITUTION OF INDIA. (scope of article 21 of the constitution of India)
October 21, 2020
JUDICIAL PROUNCEMENT
HAVE UPLIFTED THE SCOPE AND AMBIT OF ART.21 OF THE CONSTITUTION OF INDIA. (scope of article 21 of the constitution
of India)
Introduction: Art. 21 of the constitution of India guaranteed the fundamental right to life and personal liberty
to citizens as well as to non-citizens (Chairman,
Railway Board v. Chandrima Das). The object of the fundamental right of
Art. 21 is to prevent infringement upon personal liberty and deprivation of
life except according to the procedure established by law must be strictly
followed.
Art.21 of the constitution reads
as “No person shall be deprived of his
life and personal liberty except according to the procedure established by law”.
Prior to the Maneka Gandhi’s decision Art. 21 guaranteed the right to life
and personal liberty to citizens only against the arbitrary action of the
executive and not from legislative action. The state could interfere with the
liberty of citizens if it could support its action by a valid law.
Scope of Art.21- meaning and
scope:
The scope of Art.21 was bit
narrow till 50s. The meaning of the words “personal liberty” came up for
consideration of the Supreme Court for the first time in A.K. Gopalan v. union of India AIR 1950 SC 27. In this case
the petitioner, A.K. Gopalan, a communist leader was detained under the
Preventive Detention Act, 1950. The petitioner challenged the validity of the
detention under the Act on the ground that it was violative of his right to
freedom of movement U/Art.19 (1) (d) which is the very essence of personal liberty
is guaranteed by Art.21. But the court held that the ‘personal liberty’
contained in art.21 means nothing more than the liberty of the physical body,
that freedom from arrest and detention without the authority of law.
But this restrictive
interpretation of the expression personal liberty in A.K. Gopalan’s case has
not been followed by the SC in its later decisions. In Kharak Singh v. State of U.P. AIR1963 SC1295 the SC held
that the personal liberty is not only limited to bodily restraint or
confinement to prisons only, it is used as compendious term including within
itself all the varieties of rights which going to make up personal liberty of a
man other than those dealt within Art.19 (1).
After Maneka Gandhi v. Union of India AIR 1978 SC597 case the SC
not only overruled Gopalan’s case but has widened the scope of the words ‘personal
liberty’ considerably. Bhagwati, J. observed:
“The expression ‘personal liberty’
in art. 21 is of widest amplitude and it covers a variety of rights which go to
constitute personal liberty of man and some of them have risen to the status of
distinct fundamental rights and given additional protection under art.19.” Further
held that “The attempt of court should be to expand the reach and ambit of the
fundamental rights rather than to attenuate their meaning and content by a
process of judicial restriction.”
The court lays down great stress
on the procedural safeguard. The procedure must satisfy the requirement of
natural justice, it must be just, fair and reasonable.
In Francis Coralie v. Delhi Administration (AIR1981 SC746),
held that the word personal liberty is of widest amplitude and it includes the ‘right
to socialize’ (by detenu) with members of family and friends subject to
reasonable prison regulations. Detenu’s right to have interview with his lawyer
and family members is part of his personal liberty guaranteed by art 21. Right to
‘live’ is not confined to physical existence but it includes within its ambit
the right to live with human dignity and all that goes along with it, namely
the bare necessities of life such as adequate nutrition, clothing, and shelter,
and facilities for reading, writing, and expressing ourselves in diverse forms,
freely moving and mixing with fellow human beings.
The scope of art21 is further
widened in the case of Bandhua Mukti
Morcha v. Union of India AIR 1984,SC 802 in respect of the bonded labour
and weaker section of the society. The state is under constitutional obligation
to see that there is no violation of fundamental right of any person,
particularly when he belongs to the weaker section of the community and is
unable to wage a legal battle against a strong and powerful opponent, who is
exploiting him. As art.21 assures the right to live with human dignity, free
from exploitation, the central and the state govt. therefore bound to ensure
observance on the various social welfare and labour laws enacted by Parliament
for the purpose of securing to the workman a life basic human dignity in
compliance with the Directive Principles of State Policy.
It was observed in the case of Unni Krishnan that Art.21 is the
heart of the fundamental rights and it has extended the scope of this Art. by
observing that the right to life includes the right to education too. (By the 86th constitutional
amendment act 2002, right to education has been inserted under Art.21-A of the
constitution).
The Apex Court in the case of S.S. Ahuwalia v. Union of India and
others it was held that in the expanded meaning attributed to Art.21 of the
constitution, it is the duty of the state to create a climate where member of
the society belonging to the different faith, caste and creed live together and
therefore the state has a duty to protect their life, liberty, dignity and
worth of individual which should not be jeopardized.
Further in the case of Subhas Kumar vs. State of Bihar the apex court held that Public Interest
Litigation is maintainable for ensuring enjoyment of pollution free water and
air which is included in the ‘right to live’ under Art. 21.
Right to privacy as a part of Art.21 : In R.
Rajagopal v. State of T.N. (1994) popularly known as “Auto Shankar case”
the supreme court has expressly held the “right to privacy”, or the right to be
let alone is guaranteed by Art.21 of the Constitution.
In Surjit Singh Thind vs Kanwaljit Kaur, the Punjab and Haryana
HC has held that allowing medical examination of a woman for her virginity amounts
to violation of her right to privacy and personal liberty enshrined under Art.21.
Conclusion: To sum up the above discussion it is clear
that the provision of Art.21 was constructed narrowly at the inception but the
law in respect of life and personal liberty of a person was developed
gradually. New dimension have been added to Art.21 from time to time. The interpretation
which has been given to the word life and personal liberty in various decisions
of the apex court, it can be said that the protection of life and personal liberty
has got multidimensional meaning and any arbitrary, whimsical and fanciful act
of the state which deprived life or personal liberty of a person would be against
that provision of Art.21 of the constitution.
Rule of Absolute liability and strict liability
January 05, 2019
Introduction:- Generally a person could be made liable in any kind of tort only when he was either negligently or committed an intentional tort. But under the rule of "Absolute liability" a person is made liable even if he is neither negligent nor willfully commits a tort. Absolutely liability is therefore an exception under the law of tort where the liability of a person arises even if he is not at fault. In this context the rule laid down in two cases , firstly in the decision of the house of lord in *RYLANDS V. FLETCHER*, and secondly in the decision of the Supreme court of india in *M.C. MEHTA V. UNION OF INDIA*.
The rule laid down in RYLANDS V. FLETCHER
Is generally known as THE RULE OF RYLANDS V. FLETCHER or Rule of strictl Liability. Because of various exception to the applicability of this rule ,it would be preferable to call it the rule of strict liability.
Is generally known as THE RULE OF RYLANDS V. FLETCHER or Rule of strictl Liability. Because of various exception to the applicability of this rule ,it would be preferable to call it the rule of strict liability.
While formulating the rule in M.C. MEHTA VS. UNION OF INDIA the Supreme Court itself termed the liability recognized in this case as ABSOLUTE LIABILITY, expressly stated that such liability will not be subject to such exception as have been recognized under RYLANDS VS. FLETCHER.
THE RULE OF STRICT LIABILITY:- It has been noted that in RYLANDS V. FLETCHER in 1868, the House of Lord laid down the rule recognizing "No Fault Liability". The liability recognized was strict liability i.e., even if the defendant was not negligent or rather even if the defendant didn't intentionally cause the harm or he was careful, he could still be made liable under this rule.
In RYLANDS V. FLETCHER, the defendant git a reservoir constructed, through independent contractor,over his land for providing water to his mill. There were old disused shatfs under the site of the reservoir, wich the contractor failed to observe and so didn't block them. When the water was filled in the reservoir, it brust through the shafts and flooded the plaintiff's coal mines on the adjoining land. The defendant didn't know of the shafts and had not been negligent although independent contractor had been. Even though the defendant had not been negligent, he was held liable.
Basis of the liability in the above case was the following rule propounded by the Blackburn,J.:
" We think that the true rule of law is, that the person who for his own purposes bring on his lands and collects and keeps there anything legally to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie and answerable for all the damages which his the natural consequences of it escapes".
Basis of the liability in the above case was the following rule propounded by the Blackburn,J.:
" We think that the true rule of law is, that the person who for his own purposes bring on his lands and collects and keeps there anything legally to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie and answerable for all the damages which his the natural consequences of it escapes".
After laying down the above rule, he stated a little later (which may be regarded as exception) that the defendant "can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this short exists here, it is unnecessary to inquire what excuse would be sufficient". From the above, it appears that there must be to basic requirements in order to apply the rule laid down by Justice Blackburn along with the clarifications made by the House of Lord's :
(A) escape from one land to another
(B) non-natural use of land
(A) escape from one land to another
(B) non-natural use of land
(A)Escape:- in order to apply the rule of strict liability it must be proved tht the dangerous things actually escaped from the area outside the occupation and control of the defendant i.e.,in other words, dangerous things escaped from the defendant's land on to the land of another and caused damage. For e.g., in the case of BHOPAL GAS TRAGEDY. Here the poisonous gas escaped from the premises of UNION CARBIDE COMPANY on to the lands and premises of other persons and injured/killed thousands of persons. Where, however, the damage is within the defendant's boundaries, the rule can't be applied.
Thus, if there is projection of the branches of a poisonous tree on the neighbour's land,this amounts to an escape and if the cattle lawfully there on the neighbour's land are poisoned by eating the leaves on the same, the defendant will not be liable under the rule. But, if the plaintiff's horse intrudes over the boundary and dies by nibbling the leaves of a poisonous tree there, the defendant can't be liable because there is no escape of the vegetation in this case
(B) Non-natural use of land:- Water collected in the reservoir in such a huge quantity in RYLANDS V. FLETCHER was held to be non-natural use of the land. Keeping water for ordinary domestic purposes is 'natural use'. For the use to be non-natural, it "must be some special use bringing with it increased danger to other, and must must not merely by the ordinary use of land on such a use as is proper fir the general benefit of community". In SOCHACKI V. SAS, it has been held bmthatbtge fire in a house in a great is an ordinary, natural, proper, everyday use of the fire place in a room. If this fire spreads to the adjoining premises, the liability under the rule in RYLANDS V. FLETCHER can't arise.
Thus it is necessary for applicability of the rule of RYLANDS V. FLETCHER, there must be non-natural use of the land; like growing of a poisonous tree.
Exception to the rule of strict liability: Apart from natural use of land and non-escape of thing from one land to another, the following defences to the rule have been recognized by RYLANDS V. FLETCHER and some later decisions.
(A) default of the plaintiff;
(B) act of God ;
(C) consent of the plaintiff;
(D)act of stranger ;
(E) statutory authority
If anyone of above stated exceptions or defence is in application in any kind of mishap or dange than the defendant will not be liable to pay the damages to the plaintiff.
(A) default of the plaintiff;
(B) act of God ;
(C) consent of the plaintiff;
(D)act of stranger ;
(E) statutory authority
If anyone of above stated exceptions or defence is in application in any kind of mishap or dange than the defendant will not be liable to pay the damages to the plaintiff.
THE RULE OF ABSOLUTE LIABILITY:-
If an industry or enterprise is engaged in some inherently dangerous activity from which it is deriving commercial gain and that activity is capable of causing catastrophic damage than the industry officials are absolutely liable to pay compensation to the aggrieved parties. The industry can't pead that all safety measures were taken care of by them and that there was no negligence on their parts. They will not be allowed any exception neither can they taken up any defend like that of 'act of stranger' or 'act of God'.
The following doctrine of Absolute liability that prevents the defendants from laking of any defence against payment of damages__
(1)If an industry or enterprise is involved in any inherently dangerous activity, than for any damage arising out of the conduction of the activity, the defendants will have no access to any defence or exception and will be absolutely liable to pay compensation to the plaintiff.
(2) The enterprise will be held responsible for all possible damage on consequences resulting from the activity. This will make such industries to provide safety equipments to its workers to prevent any mishap. Therefore, this will safeguard to the intrest of the worker and will give them a refined, safe working atmosphere.
(3) The element of escape which is an essential in strict liability and it may be ignored here as this restricts the application of this doctrine of Absolute liability as after incident may arise where escape of the dangerous thing like poisonous fumes may not take place outside in industry premises but may damage the workers inside. In this case, the worker's right to compensation will not be ignored. Therefore, the extent of this principle is to be applied in a wider context ruling out the elements of escape.
(4) In case where strict liability applies, compensation paid is according to the nature and quantum of damage caused but in cases of Absolute liability, compensation on damage to be paid is exemplary in nature. The amount decided upon should be more than the damage caused as industrial hazardous accidents generally caused mass death and destructin of property and environment.
If an industry or enterprise is engaged in some inherently dangerous activity from which it is deriving commercial gain and that activity is capable of causing catastrophic damage than the industry officials are absolutely liable to pay compensation to the aggrieved parties. The industry can't pead that all safety measures were taken care of by them and that there was no negligence on their parts. They will not be allowed any exception neither can they taken up any defend like that of 'act of stranger' or 'act of God'.
The following doctrine of Absolute liability that prevents the defendants from laking of any defence against payment of damages__
(1)If an industry or enterprise is involved in any inherently dangerous activity, than for any damage arising out of the conduction of the activity, the defendants will have no access to any defence or exception and will be absolutely liable to pay compensation to the plaintiff.
(2) The enterprise will be held responsible for all possible damage on consequences resulting from the activity. This will make such industries to provide safety equipments to its workers to prevent any mishap. Therefore, this will safeguard to the intrest of the worker and will give them a refined, safe working atmosphere.
(3) The element of escape which is an essential in strict liability and it may be ignored here as this restricts the application of this doctrine of Absolute liability as after incident may arise where escape of the dangerous thing like poisonous fumes may not take place outside in industry premises but may damage the workers inside. In this case, the worker's right to compensation will not be ignored. Therefore, the extent of this principle is to be applied in a wider context ruling out the elements of escape.
(4) In case where strict liability applies, compensation paid is according to the nature and quantum of damage caused but in cases of Absolute liability, compensation on damage to be paid is exemplary in nature. The amount decided upon should be more than the damage caused as industrial hazardous accidents generally caused mass death and destructin of property and environment.
In the case of M.C.MEHETA V. UNION ON INDIA AIR1987SC1086 an important development took place in India when Bhagwati CJ. revolutionized the law of the strict liability. He did not follow the principal laid down I. The case of RYLANDS V. FLETCHER, on the ground that those principle are not in keeping with the present day jurisprudential thinking.
The facts were that there was escape of Plum Gas from one of the unit of SRIRAM FOODS AND FURTILIZERS INDUSTRIES, DELHI. Due to this leakage one advocate and several others had died. An action was brought against the industry through a writ petition under Art.32 of the Indian Constitution by way of public intrest litigation (PIL). The judge in this case refused to follow the strict liability principle set by the English law, because this rule was evolved in the year 1868 and it can't be followed in a modern industrial society with the highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry as part of the development programme. Therefore the court than directed the organization who had filed the petition to file suits against the industry in appropriate courts within a span of 2 moths to demand compensation on behalf of the aggrieved parties.
Again in the case of BHOPAL GAS TRAGEDY UNION CARBIDE CORPORATION V. UNION OF INDIA, AIR 1990 S.C 273. This doctrine was upheld in famous Bhopal gas tragedy which took place between the intervening night of second and 3rd December,1984 leakage of methye-iso-cynide(MIC) poisonous gas from the union carbide company in Bhopal, Madhya Pradesh led to a major disaster and over three thousands people lost their lives. There was heavy lost to property, flora and fauna. The effect were so grave that children in those area are born with deformites even today. A case was filed in the American New York District Court as the UNION CARBIDE COMPNY in BHOPAL was a branch of the U.S based UNION CARBIDE COMPANY. The case was dismissed there owing to no jurisdiction. The Bhopal gas disaster (processing of claims) Act,1985 and save the company for damage on behalf of the victims. The court applying the principle of Absolute liability held the company liable and order it to pay damages to the victim.
Conclusion:- In conclusion we can say that, the rule of Absolute liability is a modified version of strict liability. In case of strict liability the defendant can take the help of several defences. Wherever in the rule of Absolute liability put upon the defendant where the scope of any defence being taken is not allowed. They are held liable for payment of damages under all circumstances.
Again I the rule of strict liability the nature and quantum of damages that are payble to the plaintiff are compensatory in nature that is in accordance to the amount of loss suffered by the plaintiff, damages will be paid equivalent to the amount lost. But in Absolute liability the nature of damages that are payble to the plaintiff are exemplary.
Privity of contract (stranger to a contract can't sue) under Indian Contact Act 1872
January 05, 2019
Introduction: According to Sec.2(d) of the Indian Contract Act,1872 (hereinafter mentioned as I.C.A.), consideration may be given by Promisee or any other person. In India there's a possibility that consideration for the promise may move not from the Promisee but a third person ,who is not a party to the contact. But in Englad, the position is different , there rule is that consideration must move from the Promisee and nobody else.
Privity of Contract: The doctrine of privity of contact means only those person who are parties to the contract,can enforce the contract. A stranger to a suit can't enforce a contract eventhough the contract may have been entered into for his benefit. E.g., there's a contract between A&B. Under that contract some benefit has been conferred upon X. Here in this case if the contract has breached by B , X can't file a suit against B for the enforcement of contract as because A&B are only parties to the contract wheras X is stranger to the contract.
The rule that a stranger to a contract can't sue but in India, a person who is stranger to a consideratin can sue, because according to Indian law, consideration may be given either by Promisee or by a third party ,so, that doesn't affect the rule of privity of conrtact.
The rule that a stranger to a contract can't sue but in India, a person who is stranger to a consideratin can sue, because according to Indian law, consideration may be given either by Promisee or by a third party ,so, that doesn't affect the rule of privity of conrtact.
Privity under English Law:- In Tweddel v. Atkinson, it was held that only parties to a contract can sue each other. In the instant case the plaintiff, A merried a girl B. After this marriage there was a contract between A's father and B's father that each would pay a certain sum of money to A and A will have the power to sue for such sums. After the death of the two father, A brought an action against the legal representative of B's father to recover the promised amount. It was held that A couldn't sue for the same as because plaintiff was stranger to consideration so he couldn't enforce the claim.
Privity under Indian Law:- The rule of privity if contract i.e.," stranger to a contract can't bring an action" is equally applicable in India as as in Englad. However under the I.C.A 1872, the definition of consideration is wider than the English law, yet the common law principal of privity of contract is generally applicable in India,with the effect that only a party to a contract is entitled to enforce the same.
In Jamna Das v. Ram Avatar, A had mortgage some property to X. A than sold the mortgaged property to B, B having agreed with A to pay off the mortgage debt to X. On the default of B , X brought an action against B to recover the mortgage money. It was held by the privy council that since there was no contract between X&B, so X couldn't enforce the contract to recover the amount from B.
Thus it is clear that a third person can't take an action into a contract, however there are some exceptions under this rule where a stranger to a contract can sue. So those exceptions are as follows-
(i) Trust or Charge: A well recognized exception to this rule is that that a trust or Charge created in some property in favour of third person.
In Narayani Devi v. Tagore Commercial Corp. Ltd. A had various share of the value of ₹40500. It was agreed that A would sell his shares in favour of B and in return B would pay to A ₹500 per month and after his death would pay ₹250 per month to A's widow during her life if she survived after her husband. C stood a surety for B. Some payments were made by C to A and after his death to A's widow. Thereafter the payments were stopped. A's widow brought an action against B and C to recover the amount. One of the defence pleaded was that since the plaintiff was not a party to the said agreement which was entered into by her husband and the defendants, she was not legally entitled to sue in respect of the agreement. Rejecting the contention of the defendants, the Calcutta H.C. held that from the facts and the circumstances of the case, an obligation in the nature of trust could be inferred in favour of the plaintiff and an equity having been created in her favour , accordingly she was entitled to sue even when she was not party to the contract. A decree was passed in her favour for the arrears of the amount due.
Thus it is clear that a third person can't take an action into a contract, however there are some exceptions under this rule where a stranger to a contract can sue. So those exceptions are as follows-
(i) Trust or Charge: A well recognized exception to this rule is that that a trust or Charge created in some property in favour of third person.
In Narayani Devi v. Tagore Commercial Corp. Ltd. A had various share of the value of ₹40500. It was agreed that A would sell his shares in favour of B and in return B would pay to A ₹500 per month and after his death would pay ₹250 per month to A's widow during her life if she survived after her husband. C stood a surety for B. Some payments were made by C to A and after his death to A's widow. Thereafter the payments were stopped. A's widow brought an action against B and C to recover the amount. One of the defence pleaded was that since the plaintiff was not a party to the said agreement which was entered into by her husband and the defendants, she was not legally entitled to sue in respect of the agreement. Rejecting the contention of the defendants, the Calcutta H.C. held that from the facts and the circumstances of the case, an obligation in the nature of trust could be inferred in favour of the plaintiff and an equity having been created in her favour , accordingly she was entitled to sue even when she was not party to the contract. A decree was passed in her favour for the arrears of the amount due.
(ii) Conduct, Acknowledgement or Admission: sometimes there may be no privity of contract between the two parties, but if one of them by his conduct, acknowledgement or admission recognizes the right of the other to sue him, he may be liable on the basis of the Law of Estoppel.
In the same aforesaid case i.e., Narayani Devi, when there was no contract between the plaintiff and the defendants but the defendants in their agreement with the plaintiff's husband had agreed to pay a certain amount to the plaintiff's husband during his lifetime and thereafter to the plaintiff, the question of the right of the plaintiff to sue the defendants had made arisen. It was established that the defendants hd made certain payments to the plaintiff and after her husband's death, in pursuance of the agreement and had thereafter asked for the extension of the time to pay. Apart from that it was found that the defendants, by their admission had earlier called upon the plaintiff to execute certain documents in this connection,which imples that they considered the plaintiff by their conduct to certain rights. It was therefore held that the defendants had created such privity with the plaintiff by their conduct and by acknowledgement and by admission that the plaintiff was entitled to her action even though there was no privity to contract but the plaintiff and the two defendants, when the said contract was entered into.
In the same aforesaid case i.e., Narayani Devi, when there was no contract between the plaintiff and the defendants but the defendants in their agreement with the plaintiff's husband had agreed to pay a certain amount to the plaintiff's husband during his lifetime and thereafter to the plaintiff, the question of the right of the plaintiff to sue the defendants had made arisen. It was established that the defendants hd made certain payments to the plaintiff and after her husband's death, in pursuance of the agreement and had thereafter asked for the extension of the time to pay. Apart from that it was found that the defendants, by their admission had earlier called upon the plaintiff to execute certain documents in this connection,which imples that they considered the plaintiff by their conduct to certain rights. It was therefore held that the defendants had created such privity with the plaintiff by their conduct and by acknowledgement and by admission that the plaintiff was entitled to her action even though there was no privity to contract but the plaintiff and the two defendants, when the said contract was entered into.
(iii) Provision for marriage expenses or maintenance under family arrangement:- When under a family arrangement the contract is intended to secure a benefit to a third party he may sue in his own right as beneficiary. Such an action has been allowed in many cases where, on the partition of joint family property between the male member. A provision is made for the maintenance of the female members of the family. The basis of the recognition of such an action is the application of the rule laid down in Veeramma v. Alpayu, under a family arrangement,the father's house was to be conveyed to his daughter and the daughter undertook to maintain him in his lifetime. The daughter being a beneficiary under the compromise arrangement, it was held that she was entitled to sue for the specific performance in her favour.
Conclusion: From the above discussion we get to know that privity of contract means only those persons ,who are parties to the contract can enforce the same (English law) whereas in indian law if the contract is made for the benefit of third party than the third party can bring an action to enforce the same, if the certain exceptions as discussed supra exist.
Scope,procedure,and limitation of the Article 368 of the Constitution of india, whether the basic structure of the Constitution can be amended.
January 05, 2019
Introduction: The constitution of India is neither rigid nor flexible,but is a combination of both. Art.386 in Part-XX gives powers to parliament to amened the Constitution and its procedure. Parliament can amend it by adding Articles, or repealing any provisions but however Parliament can't amend those provisions which destroy the basic structure of the Constitution. The American constitution is very rigid and the British constitution is very flexible. But our constitution is the synthesis of these constitution.
Scope of Art.368:- The framers of the Indian Constitution keen to avoid excessive rigidity. They were anxious to have a document which could grow with a growing nation, adopt itslef to the changing need and circumstances of a growing people. The nature of the 'Amending process' envisaged by the framers of our constitution can be understood by referring the following observation of the Late Prime Minister Pt. Nehru ,
" While we want this constitution be as solid and permanent as we can make it, there is no permanence in the Constitution, there should be certain flexibility if you make anything rigid and permanent we stop the nation's growth,of living, vital, organic people.........
In any event, we couldn't make this constitution so rigid that is can't be adopted to changing conditions. When the word is in a period of transition what we may do today may not be wholly applicable tomorrow."
Thereby the Constitution makers has adopted the middle course to balance between rigidity and flexibility in respect of the amendment of the Constitution. Some of its provisions may be amended by parliament by a simple majority while some of its provisions can be amended only by special majority and ratification of at least 1/2 of the state legislature.
Modes of the amendment of the Constitution:
The provisions of the Constitution of India may, be amended in the following manner:-
(a) By simple majority:-Some articles e.g., Art. 5, 239-A, 312etc. May be amended by parliament by simple majority as like ordinary law. They can, thus, be amended by parliament by ordinary legislative process There are excluded from the preview of the procedure laid down by Art.368.
(b) By special majority:- Articles that can be amended by special majority and laid down in Art.368. All constitutional amendments, other than those referred to above,come within this category and must be effected by a majority of the total membership of each house of Parliament as well as by a majority of not less then 2/3 of the members of that house present and voting.
(C) By special majority and ratification by states:- The following provisions can be amended only when the bill for that purpose is passed in each house of Parliament by a majority of the total membership to that house and by a majority of not less than two third of the members that house present and voting and is ratified by the legislatures of not less than one half of the states by resolution before the Bill is presented to the President for assent:-
1. Election of the President - Art. 54,55
2. Extent of the executive power of the union - Art. 73
3. Extent of the executive power of the state- Art.162
4. High court for union territories-Art.241
5. Distribution of powers between union and states - Art. 245-255
6. Any of the list in the 7th schedule.
7. Article 368 itself.
In the case of Keshwanand Bharti v. State of Kerala (1973) the Supreme Court has made it clear that parliament can amend any provisions of the Constitution but it can't alter the basic structure of the Constitution.
Procedure for amendment: The bill to amened the Constitution may be introduced in either house of Parliament. It must be passed by each house by a majority of total membership to that house and by a majority of not less than 2/3 of the members of that house present and voting. When a bill is passed by both houses it shall be presented to the President for his assent who shall give assent to bill and there upon the Constitution shall stand amended. But a bill which seek to amend the provisions mentioned in Art.368 requiere in addition to the special majority mentioned above the ratification by the 1/2 of the states.
Art.368, however doesn't constitute the complete code. The process of amending the Constitution is the legislative process governed by the rule of that process. Thus, it is clear that most of the provisions of the Constitution can be amended by an ordinary legislative process. Only a few provisions which delt with the federal principle require a special majority plus ratification by the states.
Amendment of Fundamental Rights :- The questions whether Fundamental Rights can be amended under Art. 368 came for consideration of the Supreme Court in SANKARI PRASHAD V. UNION OF INDIA, in this case the validity of the Constitution (1st amendment) Act,1951, which inserted inter alia, Articles 31-A and 31-B of the Constitution was challenged. The amendment was challenged on the ground that it purported to take away the rights conferred by Part III which fall within the prohibition of Art.13(2) and hence,was void. It was argued that the "state" in Art. 12 included parliament and the word "law" in Art.13(2), therefore, must include constitution amendment. The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is certain in Art.368, and that the word "Law" in Art.13(2) includes only an ordinary law, made in exercise of the legislative power and doesn't include Constitutional amendment wich is made in exercise of constitutional power. Therefore, a constitutional amendment will be valid even if it violates or takes any of the fundamental rights.
In Sajjan singh vs. State of Rajasthan, the validity of the Constitution (17th amendment) Act, 1964 was challenged. The Supreme Court approved the majority judgement given in SANKARI PRASHAD's case and held that the word "Amendment of the Constitution" means amendment of all the provisions of the Constitution. Justice Gajendra Gadkar said that if the Constitution makers intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provision in behalf.
In the case of Golak Nath vs. State of Punjab, the Supreme Court held that the word "law" in Art.13(2) includes the constitutional law also and therefore a constitutional amendment can't take away or violates any of the fundamental rights guaranteed by Part-III of the Constitution. The validity of the Constitution (7th amendment) Act,1964, which inserted certain state Acts in 9th schedule was agian challenged. The Supreme Court by majority of 6:5 prospectively overruled its earlier decision in SANKARI PRASHAD and Sajjan Singh cases and held that Parliament had no power from the date of this decision to amend Part-III of the Constitution so as to take away or abridge the fundamental rights.
In any event, we couldn't make this constitution so rigid that is can't be adopted to changing conditions. When the word is in a period of transition what we may do today may not be wholly applicable tomorrow."
Thereby the Constitution makers has adopted the middle course to balance between rigidity and flexibility in respect of the amendment of the Constitution. Some of its provisions may be amended by parliament by a simple majority while some of its provisions can be amended only by special majority and ratification of at least 1/2 of the state legislature.
Modes of the amendment of the Constitution:
The provisions of the Constitution of India may, be amended in the following manner:-
(a) By simple majority:-Some articles e.g., Art. 5, 239-A, 312etc. May be amended by parliament by simple majority as like ordinary law. They can, thus, be amended by parliament by ordinary legislative process There are excluded from the preview of the procedure laid down by Art.368.
(b) By special majority:- Articles that can be amended by special majority and laid down in Art.368. All constitutional amendments, other than those referred to above,come within this category and must be effected by a majority of the total membership of each house of Parliament as well as by a majority of not less then 2/3 of the members of that house present and voting.
(C) By special majority and ratification by states:- The following provisions can be amended only when the bill for that purpose is passed in each house of Parliament by a majority of the total membership to that house and by a majority of not less than two third of the members that house present and voting and is ratified by the legislatures of not less than one half of the states by resolution before the Bill is presented to the President for assent:-
1. Election of the President - Art. 54,55
2. Extent of the executive power of the union - Art. 73
3. Extent of the executive power of the state- Art.162
4. High court for union territories-Art.241
5. Distribution of powers between union and states - Art. 245-255
6. Any of the list in the 7th schedule.
7. Article 368 itself.
In the case of Keshwanand Bharti v. State of Kerala (1973) the Supreme Court has made it clear that parliament can amend any provisions of the Constitution but it can't alter the basic structure of the Constitution.
Procedure for amendment: The bill to amened the Constitution may be introduced in either house of Parliament. It must be passed by each house by a majority of total membership to that house and by a majority of not less than 2/3 of the members of that house present and voting. When a bill is passed by both houses it shall be presented to the President for his assent who shall give assent to bill and there upon the Constitution shall stand amended. But a bill which seek to amend the provisions mentioned in Art.368 requiere in addition to the special majority mentioned above the ratification by the 1/2 of the states.
Art.368, however doesn't constitute the complete code. The process of amending the Constitution is the legislative process governed by the rule of that process. Thus, it is clear that most of the provisions of the Constitution can be amended by an ordinary legislative process. Only a few provisions which delt with the federal principle require a special majority plus ratification by the states.
Amendment of Fundamental Rights :- The questions whether Fundamental Rights can be amended under Art. 368 came for consideration of the Supreme Court in SANKARI PRASHAD V. UNION OF INDIA, in this case the validity of the Constitution (1st amendment) Act,1951, which inserted inter alia, Articles 31-A and 31-B of the Constitution was challenged. The amendment was challenged on the ground that it purported to take away the rights conferred by Part III which fall within the prohibition of Art.13(2) and hence,was void. It was argued that the "state" in Art. 12 included parliament and the word "law" in Art.13(2), therefore, must include constitution amendment. The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is certain in Art.368, and that the word "Law" in Art.13(2) includes only an ordinary law, made in exercise of the legislative power and doesn't include Constitutional amendment wich is made in exercise of constitutional power. Therefore, a constitutional amendment will be valid even if it violates or takes any of the fundamental rights.
In Sajjan singh vs. State of Rajasthan, the validity of the Constitution (17th amendment) Act, 1964 was challenged. The Supreme Court approved the majority judgement given in SANKARI PRASHAD's case and held that the word "Amendment of the Constitution" means amendment of all the provisions of the Constitution. Justice Gajendra Gadkar said that if the Constitution makers intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provision in behalf.
In the case of Golak Nath vs. State of Punjab, the Supreme Court held that the word "law" in Art.13(2) includes the constitutional law also and therefore a constitutional amendment can't take away or violates any of the fundamental rights guaranteed by Part-III of the Constitution. The validity of the Constitution (7th amendment) Act,1964, which inserted certain state Acts in 9th schedule was agian challenged. The Supreme Court by majority of 6:5 prospectively overruled its earlier decision in SANKARI PRASHAD and Sajjan Singh cases and held that Parliament had no power from the date of this decision to amend Part-III of the Constitution so as to take away or abridge the fundamental rights.
A limitation and amending power or the theory of basic structure:- The validity of the Constitution (24th amendment) Act,1971, was challenged in Keshwanand Bharti vs State of Kerala AIR 1973 S.C. 1461, popularly known as the Fundamental Right's Case. The Supreme Court stated that 24th constitutional amendment Act is valid and parliament can't take away Fundamental Rights. Supreme Court at this time came out with the "doctrine of basic structure". It states that Parliament can't amend the Constitution under Art.368 that relates to the change of basic structure of the Constitution i.e., parliament can't take away those fundamental rights that are a part of basic structure of the Constitution. Parliament than enacted 42nd Constitutional Amendment Act 1976. It states that there is no limit to the power conferred by Art.386 to the Parliament and any change brought about by Art.368 can't be questioned in the court of law.
In Minerva Mills ltd. Vs Union of India AIR 1980, the Supreme Court by 4:1 majority struck down clauses (4) & (5) of Art. 368 inserted by the 42nd Amendment and the ground that this clause destroyed the essential features of the basic structure of the Constitution. Limited amending power is a basic structure of the Constitution. Since these clauses remove all limitations on the amending power and thereby confer an unlimited amending power, it was destructive of the basic feature of the Constitution.
In Waman Rao vs. Union of India the Supreme Court held that all amendment to the Constitution which were made before April 24,1973 ( i.e.,the date on which the judgement of Keshwanand Bharti was delivered) including those by which the 9th schedule to the Constitution was amended from time to time were valid and constitutional but amendment to the Constitution made on or after that date by which the 9th schedule was amendment were left open to challenge on the ground that they were beyond the Constitution power of Parliament because that damage the basic structure of the Constitution.
In M. Nagraj vs. Union of India AIR 2007 S.C 71. The court has held that the basic structure are systematic principle underlying and connecting provisions of the Constitution. They give coherence and durability to the Constitution. This principles are part of the Constitutional law even if not expressly stated. The theory of basic structure is basic on the principle that a change in a thing doesn't involved its destruction of a thing is a matter of substance and not of form.
In M. Nagraj vs. Union of India, the Supreme Court had made it clear that the theory of basic structure is the only theory to judge the validity of the Constitutional amendments.
In I.R. Celho vs. State of Tamilnadu AIR2007 the court has made it clear that use of the expression constituent power shouldn't be taken ti mean that Parliament is original constituent assembly limitation of the basic structure theory will continue to apply. The power to amend the Constitution can't be equated with the power to frame the Constitution.
In Kuldeep Nayyar vs. Union of India, AIR 2006 S.C 312, the doctrine of basic structure applies to the Constitutional amendments under Art.368 and therefore, the Constitutional amendments can be challenged on the ground of violation of the basic structure of the Constitution.
Conclusion: From the above discussion at the conclusion we can say that Art.368 of the Constitution of India give powers to the Parliament to amend the Constitution and its procedure, but it can't destroy the basic structure of the Constitution. It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court a scenario that is unlikely to challange in near future. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents can't be completely determined with an measure of finally until a judgement of the Supreme Court spells it out.
In Waman Rao vs. Union of India the Supreme Court held that all amendment to the Constitution which were made before April 24,1973 ( i.e.,the date on which the judgement of Keshwanand Bharti was delivered) including those by which the 9th schedule to the Constitution was amended from time to time were valid and constitutional but amendment to the Constitution made on or after that date by which the 9th schedule was amendment were left open to challenge on the ground that they were beyond the Constitution power of Parliament because that damage the basic structure of the Constitution.
In M. Nagraj vs. Union of India AIR 2007 S.C 71. The court has held that the basic structure are systematic principle underlying and connecting provisions of the Constitution. They give coherence and durability to the Constitution. This principles are part of the Constitutional law even if not expressly stated. The theory of basic structure is basic on the principle that a change in a thing doesn't involved its destruction of a thing is a matter of substance and not of form.
In M. Nagraj vs. Union of India, the Supreme Court had made it clear that the theory of basic structure is the only theory to judge the validity of the Constitutional amendments.
In I.R. Celho vs. State of Tamilnadu AIR2007 the court has made it clear that use of the expression constituent power shouldn't be taken ti mean that Parliament is original constituent assembly limitation of the basic structure theory will continue to apply. The power to amend the Constitution can't be equated with the power to frame the Constitution.
In Kuldeep Nayyar vs. Union of India, AIR 2006 S.C 312, the doctrine of basic structure applies to the Constitutional amendments under Art.368 and therefore, the Constitutional amendments can be challenged on the ground of violation of the basic structure of the Constitution.
Conclusion: From the above discussion at the conclusion we can say that Art.368 of the Constitution of India give powers to the Parliament to amend the Constitution and its procedure, but it can't destroy the basic structure of the Constitution. It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court a scenario that is unlikely to challange in near future. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents can't be completely determined with an measure of finally until a judgement of the Supreme Court spells it out.
F.I.R. AND EVIDENTIARY VALUE OF F.I.R. and COMPLAINT and DISTINCTION BETWEEN F.I.R and COMPLAINT,UNDER CRIMINAL PROCEDURE CODE,1973
January 05, 2019
Introduction:- Every person, who is aware of the commission of an offence or of the intention of any other person to commit an offence, has a duty to inform the same to the nearest Magistrate or Police Officer. Than the Police Officer records the report and it is called "First Information Report".
The expression "First Information Report" demotes something in the nature of accusation or allegation as to commission of an offence with a view to put the Police in motion. It is an information relating to commission of a cognizable offence given to police orally or in writing, in order to put the Police in motion to investigate the matter. If the report is oral,it is to be reduced in writing.
The expression "First Information Report" demotes something in the nature of accusation or allegation as to commission of an offence with a view to put the Police in motion. It is an information relating to commission of a cognizable offence given to police orally or in writing, in order to put the Police in motion to investigate the matter. If the report is oral,it is to be reduced in writing.
F.I.R UNDER Cr.P.C:- Sec.154 of the Code of Criminal Procedure, 1973 deals with the first information report. It provides that every information relating to the commission is a cognizable offence, if given orally to the police officer-in-charge of a police station must be reduced in writing by him and read over to the informant. The information should also be signed by the person giving it and the substance thereof must be entered in the book which is to be kept by such officer in the prescribed form. A copy of the information recorded as said above is also to be kept by such officer in the prescribed form. A copy of the information recorded as said above is also to be given free of cost to the informant.
No where in the Criminal Procedure Code the term F.I.R. has defined, but F.I.R. is that information which is given to the police first in point of time. It must be noted that the information must be of such that investigation could be started on it.
No where in the Criminal Procedure Code the term F.I.R. has defined, but F.I.R. is that information which is given to the police first in point of time. It must be noted that the information must be of such that investigation could be started on it.
Ingredients of First Information Report:-
1. It is the information which is
given to the police officer.
2. Information must relates to
a cognizable offence.
3. It is the information first in
point of time.
4. It is on the basis of this
information the
investigation into the
offence commences.
In was held in the case of State of U.P. vs. Mukesh that F.I.R. is intimation abut the occurrence of the accident.
In the case of Dasan vs. State of Kerala (1987), it was held that an anonymous telephone message which didn't clearly specify a cognizable offence can't be treated as F.I.R.
In Golla Jalla Reddy vs. State of A.P., 1996 Cr.L.J.2470S.C., it has been held that where oral complaint disclosing commission of a cognizable offence has been made and police investigation started on its basis, and later on a second report is made in writing, the written report has to be considered as statement under sec.161 of the Code and not as F.I.R. and it can't be used for corroboration of evidence of information.
In the case of K.C. Mangal vs. State of Rajasthan ,1983Cr.L.J ,S.C., the Supreme Court has opined that the non mention of name of the accused in the F.I.R. doesn't invalidate the F.I.R. When the F.I.R. describe the accused as a factory inspector, the absence of name is of no significance.
given to the police officer.
2. Information must relates to
a cognizable offence.
3. It is the information first in
point of time.
4. It is on the basis of this
information the
investigation into the
offence commences.
In was held in the case of State of U.P. vs. Mukesh that F.I.R. is intimation abut the occurrence of the accident.
In the case of Dasan vs. State of Kerala (1987), it was held that an anonymous telephone message which didn't clearly specify a cognizable offence can't be treated as F.I.R.
In Golla Jalla Reddy vs. State of A.P., 1996 Cr.L.J.2470S.C., it has been held that where oral complaint disclosing commission of a cognizable offence has been made and police investigation started on its basis, and later on a second report is made in writing, the written report has to be considered as statement under sec.161 of the Code and not as F.I.R. and it can't be used for corroboration of evidence of information.
In the case of K.C. Mangal vs. State of Rajasthan ,1983Cr.L.J ,S.C., the Supreme Court has opined that the non mention of name of the accused in the F.I.R. doesn't invalidate the F.I.R. When the F.I.R. describe the accused as a factory inspector, the absence of name is of no significance.
Another important fact is to be noted regarding F.I.R. is that if one case relates to two or more offences of which at least one is cognizable, the case is deemed to be a cognizable case despite from the fact that the other offence is non-cognizable.
Evidentiary value of F.I.R:
F.I.R.is not a pice of substantive evidence and can be used only for limited purposes, like corroboration or contradicting the matter thereof, or to show that the implication of the accused was not an afterthought. As the object of F.I.R. is to obtain the earliest information of an offence and ti record the circumstances before there is time for them to be forgotten, it can be used for the purpose of testing the truth of the truth of the prosecution story. Therefore the value of F.I.R. will vary case to case, depending on whether it is based on information given by the complaint or eye witness to the crime or a mere stranger.
Punishment:- Sections 182,203&211 of the Indian Penal Code deals with the provision relating to the punishment for giving false information to the police .Even if such information is not reduced to writing under Sec. 154, the person giving the false information may nevertheless be punished for preferring a false charge u/s 211 of I.P.C. 1860.
A police officer refusing to enter in the diary a report made to him about the commission of an offence and instead making an entry which is totally different from the information given would be guilty under Sec.177 of I.P.C.
F.I.R.is not a pice of substantive evidence and can be used only for limited purposes, like corroboration or contradicting the matter thereof, or to show that the implication of the accused was not an afterthought. As the object of F.I.R. is to obtain the earliest information of an offence and ti record the circumstances before there is time for them to be forgotten, it can be used for the purpose of testing the truth of the truth of the prosecution story. Therefore the value of F.I.R. will vary case to case, depending on whether it is based on information given by the complaint or eye witness to the crime or a mere stranger.
Punishment:- Sections 182,203&211 of the Indian Penal Code deals with the provision relating to the punishment for giving false information to the police .Even if such information is not reduced to writing under Sec. 154, the person giving the false information may nevertheless be punished for preferring a false charge u/s 211 of I.P.C. 1860.
A police officer refusing to enter in the diary a report made to him about the commission of an offence and instead making an entry which is totally different from the information given would be guilty under Sec.177 of I.P.C.
Complaint:- Section 2(D) of the Code of Criminal Procedure, 1973, defines complaint as "complaint" means any allegation made orally or in writing to a magistrate with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but doesn't include a police report.
Just as plaint is filed in a civil court, complaint is lodged to initiate the Criminal proceeding against the accused.
Distinction between F.I.R. and Complaint:-
a. Complaint is defined under section 2(d) of the Code.
Whereas F.I.R. is not defined under the Code.
b. Complaint is an allegation made orally or in writing made to a Magistrate as to the commission of an offence.
Whereas F.I.R. is an information given to a police officer as to the commission of an offence.
c. The person lodging the complaint (complainant) must take oath.
Whereas the person giving F.I.R. (informant) need not to take oath.
d. In case of complaint the complainant is liable for prosecution in the event, the complaint is found false.
Whereas in case of F.I.R. the informant is not liable fir prosecution if the information given by him is fund false.
e. Complaint itself a substantial evidence.
Whereas F.I.R. is not a substantial evidence.
f. Complaint refers to both cognizable and non-cognizable offences.
Whereas F.I.R. refers only to cognizable offences.
Just as plaint is filed in a civil court, complaint is lodged to initiate the Criminal proceeding against the accused.
Distinction between F.I.R. and Complaint:-
a. Complaint is defined under section 2(d) of the Code.
Whereas F.I.R. is not defined under the Code.
b. Complaint is an allegation made orally or in writing made to a Magistrate as to the commission of an offence.
Whereas F.I.R. is an information given to a police officer as to the commission of an offence.
c. The person lodging the complaint (complainant) must take oath.
Whereas the person giving F.I.R. (informant) need not to take oath.
d. In case of complaint the complainant is liable for prosecution in the event, the complaint is found false.
Whereas in case of F.I.R. the informant is not liable fir prosecution if the information given by him is fund false.
e. Complaint itself a substantial evidence.
Whereas F.I.R. is not a substantial evidence.
f. Complaint refers to both cognizable and non-cognizable offences.
Whereas F.I.R. refers only to cognizable offences.
Conclusion:- After the exhilarating discussion of the F.I.R. enshrined in under sec.154 and Complaint under sec. 2(d) of Criminal Procedure Code at conclusion we can say that F.I.R. is an information given to the police officer as to commission of a cognizable offence whereas complaint is an information given to the Magistrate about the commission of a cognizable or non-cognizable offence.
Rights and Duties of Principal and Agent under Indian Contract Act 1872
January 05, 2019
Introduction:- According to sec.182 of the Indian Contract Act,1872 "an agent is a person employed to do any act for another or to present another in dealings with third person. The person for whom such act is done, or who is so represented, is called the Principal".
In an agency one person (principal) employs another person (agent) to represent him or to act on his behalf, in dealings with a third person. The act of the agent binds the Principal in the same manner in which he would be bound if he does that act himself.
In an agency one person (principal) employs another person (agent) to represent him or to act on his behalf, in dealings with a third person. The act of the agent binds the Principal in the same manner in which he would be bound if he does that act himself.
Rights and duties between principal and agent:
The act provides for the following mutual rights and duties between principal and agent.
Duties of Agent:
The act provides for the following mutual rights and duties between principal and agent.
Duties of Agent:
1.Duty not to delegate his duties (sec.190):- When an agent is undertaken to perform certain duties personally, he is not allowed to delegate his duties personally, he is not allowed to delegate his duties to another person. This rule is based on the Maxim "Delegatus non potest delegare" which means that an agent to whom some authority has been delegated can't further delegate that authority to another person. But however this rule has some exception where an agent can delegate his duty to another person i.e., sub-agent. That exceptions are like-
a. When there is a custom of trade to that effect the agent may employ a sub-agent.
b. When the nature of agency so requires, an agent must employ a sub-agent e.g, an agent authorized to recover engage a lawyer for the purpose.
c. When an act does require personal skill, the same may be get done through a sub-agent. For instance to transfer goods from one place to another, the agent may get the work done from a sub-agent.
d. When the Principal, expressly or impliedly, agrees to the appointment of a sub-agent for doing certain work, a sub-agent may be validly appointed.
2. Agent's duty to follow Principal's directions (sec.211):- According to Sec.211, an agent has a duty to follow the directions given to him by te principal. As stated in this section-
a. An agent is bound to conduct the business of his principal According to the direction given by the Principal, or
b. If there are no such directions, the agent should conduct the business according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business.
When the agent doesn't act as stated above, if any loss is sustained by the Principal, he must make it good to his principal and if any profit accrues, he must account for it.
Than for e.g., Lily vs Doubleday, an agent was instructed to warehouse his principal's goods at a particular place. He placed a part of them at a different warehouse which was equally safe. But the good were destroyed without negligence.
The agent was held liable for the loss. Any disability, or departure from, the instructions make the angent absolutely liable for the loss.
a. When there is a custom of trade to that effect the agent may employ a sub-agent.
b. When the nature of agency so requires, an agent must employ a sub-agent e.g, an agent authorized to recover engage a lawyer for the purpose.
c. When an act does require personal skill, the same may be get done through a sub-agent. For instance to transfer goods from one place to another, the agent may get the work done from a sub-agent.
d. When the Principal, expressly or impliedly, agrees to the appointment of a sub-agent for doing certain work, a sub-agent may be validly appointed.
2. Agent's duty to follow Principal's directions (sec.211):- According to Sec.211, an agent has a duty to follow the directions given to him by te principal. As stated in this section-
a. An agent is bound to conduct the business of his principal According to the direction given by the Principal, or
b. If there are no such directions, the agent should conduct the business according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business.
When the agent doesn't act as stated above, if any loss is sustained by the Principal, he must make it good to his principal and if any profit accrues, he must account for it.
Than for e.g., Lily vs Doubleday, an agent was instructed to warehouse his principal's goods at a particular place. He placed a part of them at a different warehouse which was equally safe. But the good were destroyed without negligence.
The agent was held liable for the loss. Any disability, or departure from, the instructions make the angent absolutely liable for the loss.
3. Duty to show proper skill and care (sec.212)- Sec.212 lays down the standard of care and skill required by an agent,
a. Common law requires an agent to act with due care and skill in performing his duties. Agent who fails to meet this standard are prima facie negligent.
b. Generally speaking, an agent in a certain profession, trade or calling who perform his duty with the degree of care and skill elected of a reasonable, average member of the relevant profession, trade and calling meeds the requisite standard.
The agent is bound to act with reasonable diligence, and such skill he possesses ; and to make compensation to his principal in respect of the direct consequences of his neglect, one of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want if skill, or misconduct.
In Keppel v. Wheeler, the Principal instructed and estate agent to find a buyer for his estate. The agent communicated an offer of a prospective purchaser who was willing to buy the estate for £6150 before the contract for sale was concluded, the agent get an offer of £6759 from another buyer. The agent didn't communicate about the second offer to the Principal. It was held that the agent didn't nit show proper skill and care in the matter and, therefore he was liable to pay damages to his principal for the loss suffered by him.
a. Common law requires an agent to act with due care and skill in performing his duties. Agent who fails to meet this standard are prima facie negligent.
b. Generally speaking, an agent in a certain profession, trade or calling who perform his duty with the degree of care and skill elected of a reasonable, average member of the relevant profession, trade and calling meeds the requisite standard.
The agent is bound to act with reasonable diligence, and such skill he possesses ; and to make compensation to his principal in respect of the direct consequences of his neglect, one of skill or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want if skill, or misconduct.
In Keppel v. Wheeler, the Principal instructed and estate agent to find a buyer for his estate. The agent communicated an offer of a prospective purchaser who was willing to buy the estate for £6150 before the contract for sale was concluded, the agent get an offer of £6759 from another buyer. The agent didn't communicate about the second offer to the Principal. It was held that the agent didn't nit show proper skill and care in the matter and, therefore he was liable to pay damages to his principal for the loss suffered by him.
4. Duty to render proper account (Sec.213):- Another duty of the agent is to render proper accounts to his principal and demand. This means that he should maintain proper accounts of the sums belonging to the Principal which are in his hands, he should not misuse and misappropriate them, and on demand from the Principal, he should render true accounts to his principal.
6.Duty to communicate with principal (sec.214):- According to sec.214, it is the duty of angent, in case of difficulty to use all reasonable diligence in communicating with his principal and is seeking to obtain his instructions.
5. Duty not to deal in his own account (sec.215&216):- An agent is under a duty not to deal on his own account in the business of agency, unless the principal consents thereto. If any transaction, an agent deals on his own account without the principal's prior consent ,the Principal has the following two rights:-
a. To repudiate the transaction by showing either:
i. that any material fact has been dishonesty concealed from his agent, or
ii. that the dealings of the agent have been disadvantageous to him (sec.215).
b. To claim from the agent any benefit which Amy have resulted to him from the transaction (Sec.216)
a. To repudiate the transaction by showing either:
i. that any material fact has been dishonesty concealed from his agent, or
ii. that the dealings of the agent have been disadvantageous to him (sec.215).
b. To claim from the agent any benefit which Amy have resulted to him from the transaction (Sec.216)
7. Duty to pay sums received for principal:- Another duty of the agent is to pay to his principal all sums received by him on principal's account. Before making such payments to his principal, the agent is, however, entitled to make such deductions out of the same as are lawfully due to him (sec128). According to sec.217, an agent may retain, out of any sums received an account of the Principal in the business of the agency, all moneys due to himself in respect of advances made or expenses properly incurred by him in conducting such business and also such remuneration as may be payble to him for acting as agent.
Rights of agent and duties of principal:-
The Act confers a number of rights an agent and imposes some corresponding duties on the Principal. They are as follows:
1. Right to remuneration (sec.219):- It is basic rights of an agent that he should receive the remuneration of his services. In Saraswati Devi v. Matilal, Matilal, the plaintiff, who was an estate agent, had been engaged by the defendant Smt. Saraswati Devi and her husband, to find a purchaser for certain property. The plaintiff find find a customer, who was willing to pay Rs. 1,27,000 for the property and who also paid an advance of Rs. 30,000. Subsequently, the defendant refused to sell the property to that customer. The plaintiff brought an action against the defendants to recover ₹ 2500 as a remuneration for finding the Customer. It was held that according to nature of this agreement, the remuneration was payble to the plaintiff when he found a purchaser who was ready, willing and able to purchase the property and since he had done that, he was entitled to his commission.
The Act confers a number of rights an agent and imposes some corresponding duties on the Principal. They are as follows:
1. Right to remuneration (sec.219):- It is basic rights of an agent that he should receive the remuneration of his services. In Saraswati Devi v. Matilal, Matilal, the plaintiff, who was an estate agent, had been engaged by the defendant Smt. Saraswati Devi and her husband, to find a purchaser for certain property. The plaintiff find find a customer, who was willing to pay Rs. 1,27,000 for the property and who also paid an advance of Rs. 30,000. Subsequently, the defendant refused to sell the property to that customer. The plaintiff brought an action against the defendants to recover ₹ 2500 as a remuneration for finding the Customer. It was held that according to nature of this agreement, the remuneration was payble to the plaintiff when he found a purchaser who was ready, willing and able to purchase the property and since he had done that, he was entitled to his commission.
2. Right to retain sums (sec.217&218) :- in conducting the business if an agent advances or spends some money for the betterment of a business. He has also right to retain that amount from the total sum received by him an account of the Principal.
3.Right to lien on principal's property (sec.221):-An agent has right to retain the goods or property of a principal till the payment in due is received by him.
4.Right to compensation for damages due to principal's neglect (sec.225):- In case of injury caused to agent by the negligence or want of skill of the Principal may be compensated by the Principal.
For example, A employes B as a bricklayer in building a house and puts up the scaffolding himself. The scaffolding is unskillfully put up and B is in consequence hurt. A must make compensation to B.
For example, A employes B as a bricklayer in building a house and puts up the scaffolding himself. The scaffolding is unskillfully put up and B is in consequence hurt. A must make compensation to B.
5.Right to be indemnified (sec.222-224):- An agent had a right to be indemnified against the liabilities falls on him.
a. Indemnity for lawful acts sec.222:- According to this Section the employer of an agent is bound to indemnify him against the consequence of all lawful acts done by such agent in exercise of the authority conferred upon him.
c. Indemnity for civil wrong (sec.223):- The agent is entitled to indemnity against the consequence of an act done in good faith, even though the act causes an injury to the rights of third persons e.g., it is a tort.
d. No indemnity in case of criminal offences (sec224):- When the agent commits a crime at instance of the Principal, the agent can't claim indemnity from the Principal against the consequence of the crime, even though the Principal has expressly or impliedly promised to indemnify him.
a. Indemnity for lawful acts sec.222:- According to this Section the employer of an agent is bound to indemnify him against the consequence of all lawful acts done by such agent in exercise of the authority conferred upon him.
c. Indemnity for civil wrong (sec.223):- The agent is entitled to indemnity against the consequence of an act done in good faith, even though the act causes an injury to the rights of third persons e.g., it is a tort.
d. No indemnity in case of criminal offences (sec224):- When the agent commits a crime at instance of the Principal, the agent can't claim indemnity from the Principal against the consequence of the crime, even though the Principal has expressly or impliedly promised to indemnify him.
Conclusion:- At conclusion we can say that an agency is a creation of a contract entered into by mutual consent between a Principal and an agent. By agency Principal grant authority to an agent to act or his behalf of and under the control of the Principal. The relationship between a Principal and agent is fiduciary and an agent action bind the Principal. An is liable to a Principal when she/he acts without actual authority, but the apparent authority. Similarly the Principal is also liable for the loss caused to the agent due to his negligence.
Schools of Hindu Law and distinction between Mitakshara and Dayabhaga schools of Hindu Law.
January 05, 2019
Introduction:- Schools of Hindu law came into being when different comentaries Rutcheputty v. Rajendra, it was observed by the Privy Council that the different local customs prevailed in different provinces of India. The commentators of the Smritis could not ignore the local customs and usages and while interpreting the texts, they eventually incorporated different local customs. The local conditions and customs of the different provinces have, therefore, gone to mould the principles of law prevailing in each provinces.
appeared to interpret 'Smrits' with reference to different local customs in vogue in different parts of India. In
Schools of Hindu Law:- There are two schools of Hindu Law namely, Mitakshara and Dayabhaga. The Mitakshara is a running commentary on the code of Yajnavalkya and was written by Vjnaneswara in the later part of the eleventh century. The Dayabhaga is not a commentary on any one code, but purports to be the digest of all the codes. It was written by Jimutavahana, was about two centuries later than the Mitakshara.
The Mitakshara is of supreme authority throughout the territory of India except West Bengal and Assam, where the principle of Dayabhaga School prevails. The Mitakshara is still regarded as a very high authority on all questions in respect of which there is no conflict between it and the Dayabhaga. The Dayabhaga has permitted the women to let in the coparcenary whereas the Mitakshara has discarded this in very notion. The Dayabhaga is more dynamic and is definitely an improvement upon Mitakshara.
The Mitakshara school is sub-divided into five main schools. They are as under_
A. Benaras school
B. Mithila school
C. Dravida school or Madras school
D. Bombay or Maharashtra school
E. The Punjab school
The above mentioned schools have been discussed below-
A. Benaras School:- The Benaras school prevails in the whole of northern India including Orissa. The Lex Loci in the central provinces is follows the Benaras school principle.
The following commentaries are also held in high esteem in this school:-
1. Mitakshara,
2.Virmitroday,
3. Dattaka Mimansa,
4. Nirnaya Sindhu,
5. Vivada Tandava,
6. Subodhini,
7. Balam-Bhatti
The Mitakshara is of supreme authority throughout the territory of India except West Bengal and Assam, where the principle of Dayabhaga School prevails. The Mitakshara is still regarded as a very high authority on all questions in respect of which there is no conflict between it and the Dayabhaga. The Dayabhaga has permitted the women to let in the coparcenary whereas the Mitakshara has discarded this in very notion. The Dayabhaga is more dynamic and is definitely an improvement upon Mitakshara.
The Mitakshara school is sub-divided into five main schools. They are as under_
A. Benaras school
B. Mithila school
C. Dravida school or Madras school
D. Bombay or Maharashtra school
E. The Punjab school
The above mentioned schools have been discussed below-
A. Benaras School:- The Benaras school prevails in the whole of northern India including Orissa. The Lex Loci in the central provinces is follows the Benaras school principle.
The following commentaries are also held in high esteem in this school:-
1. Mitakshara,
2.Virmitroday,
3. Dattaka Mimansa,
4. Nirnaya Sindhu,
5. Vivada Tandava,
6. Subodhini,
7. Balam-Bhatti
B. Mithila school:- The Mithila school prevails in Tirhoot and North Bihar. The Mitakshara is the law of the school except in few matters. Thus the Privy Council held that the law of Mithila school is the law of Mitakshara school except in few matters in respect of which law of Mithila school has departed from the law of the Mitakshara.
The following are the authorities accepted in commentaries in this school-
1. Mitakshara
2. Vivada Ratnakar
3. Vivada Chintamani
4. Smriti Sara
5. Madana Parthiya
The following are the authorities accepted in commentaries in this school-
1. Mitakshara
2. Vivada Ratnakar
3. Vivada Chintamani
4. Smriti Sara
5. Madana Parthiya
C. Dravida or Madras School:- The whole of the Madras state is governed by the Madras School of Hindu Law. This school was once sub-divided into a Tamil, a Karnataka and an Andhra school for which, however, there was no justification.
The following authorities are accepted in this school -
1. Mitakshara
2. Smriti Chandrika
3. Parasara Madhav ya
4. Saraswati Vilasa
5. Viramitrodaya
6. Vyavahara Nirnaya
7. Duttaka Chandrika
8. Dayavibhaga
9. Vaijayanti
10. Madhabi
11. Nirnaya Sindhu
12. Narada Rajya
13. Vivada-Tandava
The following authorities are accepted in this school -
1. Mitakshara
2. Smriti Chandrika
3. Parasara Madhav ya
4. Saraswati Vilasa
5. Viramitrodaya
6. Vyavahara Nirnaya
7. Duttaka Chandrika
8. Dayavibhaga
9. Vaijayanti
10. Madhabi
11. Nirnaya Sindhu
12. Narada Rajya
13. Vivada-Tandava
D. Bombay or Maharashtra School:- The Bombay or Maharashtra School of Hindu Law prevails in almost whole of the state of Bombay including Gujrat, Kanara,and the part where the Marathi language is spoken as the local language.
The following works are treated an authoritative in this school :-
1. Mitakshara
2. Vyavahara Mayukha
3. Viramitrodaya
4. Nirnaya Sindhu
5. Parasara-Madhavya
6. Vivada-Tandava
The following works are treated an authoritative in this school :-
1. Mitakshara
2. Vyavahara Mayukha
3. Viramitrodaya
4. Nirnaya Sindhu
5. Parasara-Madhavya
6. Vivada-Tandava
E. Punjab School:- It prevails in the part if the country called the East Punjab. This school is governed by the customs.
The following are the authorities in this school-
1. Mitakshara
2. Viramitrodaya
3. Punjab Custom
The following are the authorities in this school-
1. Mitakshara
2. Viramitrodaya
3. Punjab Custom
Dayabhaga school of Hindu Law:-
The Dayabhaga school is the Supreme authority in Assam and West Bengal. The Dayabhaga school has permitted the women to be a coparcenary, this school is more dynamic than Mitakshara school.
The following authorities are accepted in this school-
1. Dayabhaga
2. Dayatatva
3. Daya-sangraha
4. Viramitrodaya
5. Duttaka-Chandrika
Dayabhaga was written by "Jimutavahana". According to Mayne, ' Dayabhaga was written in the 13th century'.
The Dayabhaga school is the Supreme authority in Assam and West Bengal. The Dayabhaga school has permitted the women to be a coparcenary, this school is more dynamic than Mitakshara school.
The following authorities are accepted in this school-
1. Dayabhaga
2. Dayatatva
3. Daya-sangraha
4. Viramitrodaya
5. Duttaka-Chandrika
Dayabhaga was written by "Jimutavahana". According to Mayne, ' Dayabhaga was written in the 13th century'.
Distinction between Mitakshara and Dayabhaga School:-
1. Mitakshara school prevails in all over india except Assam and West Bengal .
Whereas Dayabhaga School prevails in Assam and West Bengal.
2. Under the Mitakshara school the right to property of the coparcener arises by birth, thus son is a co-owner with the father in ancestral property.
Whereas under the Dayabhaga School the right to property arises after the death of the last owner. Hence two ancestral property during the lifetime of his father.
3. Under the Mitakshara school the father has the restricted power alienation if joint family property.
Whereas under Dayabhaga School the father has the absolute power to alienation of ancestral property.
4. Under Mitakshara, the son can ask for partition of the joint family property given against the father.
Whereas under Dayabhaga School the son can't demand for partition against the father.
5. Under Mitakshara the intrest of a member of joint family on his death pass to other members by survivorship.
Whereas but under Dayabhaga School the intrest of a member on his death passed by in inheritance.
6. Under Mitakshara school member of the joint family can't dispose their shares, while undivided.
Whereas under Dayabhaga School any member of joint family may sell or give away his shares even when undivided.
7. As regards inheritance Mitakshara is governed by rule of consanguinity (blood relationship).
Whereas under Dayabhaga School it is governed by the religious efficacy (offering of pindas).
8. Under Mitakshara school cognates (relation from mother side) are propound to agnate (relation from father side).
Whereas under Dayabhaga it was not so.
9. Mitakshara has recognized the doctrine of factum valet in limited extent.
But Dayabhaga has given full recognition to it.
Conclusion:- In conclusion we can say that there are two schools of Hindu Law. It plays a vital role in civil matters of Hindus. It is a personal law of Hindus. On migration the family continues to be governed by the law of locality of origin and the burden is heavy on the party alleging otherwise,it means if a family migrates from one state to another, it carries with it the customs regulating succession and family relation prevailing in the state from where it came.
Whereas Dayabhaga School prevails in Assam and West Bengal.
2. Under the Mitakshara school the right to property of the coparcener arises by birth, thus son is a co-owner with the father in ancestral property.
Whereas under the Dayabhaga School the right to property arises after the death of the last owner. Hence two ancestral property during the lifetime of his father.
3. Under the Mitakshara school the father has the restricted power alienation if joint family property.
Whereas under Dayabhaga School the father has the absolute power to alienation of ancestral property.
4. Under Mitakshara, the son can ask for partition of the joint family property given against the father.
Whereas under Dayabhaga School the son can't demand for partition against the father.
5. Under Mitakshara the intrest of a member of joint family on his death pass to other members by survivorship.
Whereas but under Dayabhaga School the intrest of a member on his death passed by in inheritance.
6. Under Mitakshara school member of the joint family can't dispose their shares, while undivided.
Whereas under Dayabhaga School any member of joint family may sell or give away his shares even when undivided.
7. As regards inheritance Mitakshara is governed by rule of consanguinity (blood relationship).
Whereas under Dayabhaga School it is governed by the religious efficacy (offering of pindas).
8. Under Mitakshara school cognates (relation from mother side) are propound to agnate (relation from father side).
Whereas under Dayabhaga it was not so.
9. Mitakshara has recognized the doctrine of factum valet in limited extent.
But Dayabhaga has given full recognition to it.
Conclusion:- In conclusion we can say that there are two schools of Hindu Law. It plays a vital role in civil matters of Hindus. It is a personal law of Hindus. On migration the family continues to be governed by the law of locality of origin and the burden is heavy on the party alleging otherwise,it means if a family migrates from one state to another, it carries with it the customs regulating succession and family relation prevailing in the state from where it came.
Minority (Doli incapax) (S.82,83) and intoxication (S.85&86)as a Ground of defence under Indian Penal Code 1860.
January 05, 2019
◆Introduction:-The general principal of law is that a person is presumed to know the nature and consequence of his act and is, therefore held responsible for it. However there are certain exceptions to this rule, wherein a person may be excused of crime sometimes a person may be excused from criminal liability by virtue of being head of the sovereign state, or being representative of such state etc. However other persons may also be immune from the consequences of punishment by reason of the absence of the requisite mens rea necessary for the particular offence this is based on the principle of the Latin Maxim "actus non facit renum nisi mens sit rea" i.e., the act itself doesn't make a man guilty unless his intentions are so.
The framers of the Penal Code decided to put all cases of exceptions innone chapter of the Code under chapter vi, commencing from section 76 -106.
The framers of the Penal Code decided to put all cases of exceptions innone chapter of the Code under chapter vi, commencing from section 76 -106.
◆ Minority and intoxication as a ground of defence:-
Section 82,83 of the Indian Penal Code deals with the provisions of Defence relating to minority and Sec.85&86 provides the ground of immunity from the criminal liability of a person who has accused of an offence under intoxication. Both of these provisions has been discussed below:-
◆ Section 82 and 83 Doli incapax or infacy:-
According to the Section 82 of the Indian Penal Code "nothing is an offence which is done by a child under 7 years of age."
Again according to the section 83 of the Indian Penal Code, "Nothing is an offence which is done by a child above 7 years of age and under 12. Who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion."
In criminal law of minor or Juvenile delinquents are placed in a privileged position as they are immune from criminal liability under certain circumstances. For instance a child below the age of 7 years is totally immune from criminal liability and between the age of 8 to 12 years is a subject to proof of mens rea. Further juvenile delinquents are tried in Juvenile Courts, which are specially designed for the trial of juvenile delinquents.
The present heading deals with the defence of infancy, which provides a child, exemption from criminal liability. An infant is below the age of legal maturity that is 18 years. Section 82 and 83 of the Code of 1860 exempt the children from criminal liability.
Section 82 of the code completely makes an infant below 7 years of age immune from criminal liability. Since a child below this age is considered Doli incapax in law. That is to say, a child under such as cannot from the necessary intention to constitute a crime, since he possesses no adequate discretion or understanding at this age for his deeds.
In the case of Mars vs.Loader, the defendant got a child while stealing a piece of wood from his premises and give into custody. Since the child was under the age of responsibility that is 7 years, he was discharged.
As per section 83 child above the age of 7 years and below the age of 12 years is also immune from the criminal liability subjected to the condition that such child does not have enough maturity of mind. Such child is also regarded as Doli incapax that is incapable of committing of offence. However the presentation should be proved by producing evidence. In India child between 7 to 12 years of age is qualified to avail the defence of doli incapax if it is proved that he has not attend sufficient maturity of understanding to comprehend that nature and consequence of his conduct on that occasion.
◆ Section 82 and 83 Doli incapax or infacy:-
According to the Section 82 of the Indian Penal Code "nothing is an offence which is done by a child under 7 years of age."
Again according to the section 83 of the Indian Penal Code, "Nothing is an offence which is done by a child above 7 years of age and under 12. Who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion."
In criminal law of minor or Juvenile delinquents are placed in a privileged position as they are immune from criminal liability under certain circumstances. For instance a child below the age of 7 years is totally immune from criminal liability and between the age of 8 to 12 years is a subject to proof of mens rea. Further juvenile delinquents are tried in Juvenile Courts, which are specially designed for the trial of juvenile delinquents.
The present heading deals with the defence of infancy, which provides a child, exemption from criminal liability. An infant is below the age of legal maturity that is 18 years. Section 82 and 83 of the Code of 1860 exempt the children from criminal liability.
Section 82 of the code completely makes an infant below 7 years of age immune from criminal liability. Since a child below this age is considered Doli incapax in law. That is to say, a child under such as cannot from the necessary intention to constitute a crime, since he possesses no adequate discretion or understanding at this age for his deeds.
In the case of Mars vs.Loader, the defendant got a child while stealing a piece of wood from his premises and give into custody. Since the child was under the age of responsibility that is 7 years, he was discharged.
As per section 83 child above the age of 7 years and below the age of 12 years is also immune from the criminal liability subjected to the condition that such child does not have enough maturity of mind. Such child is also regarded as Doli incapax that is incapable of committing of offence. However the presentation should be proved by producing evidence. In India child between 7 to 12 years of age is qualified to avail the defence of doli incapax if it is proved that he has not attend sufficient maturity of understanding to comprehend that nature and consequence of his conduct on that occasion.
◆Ingredients:- to invoke the defence under section 83 the following conditions are to be satisfied:
1. An act done by a child above 7 years but under 12 years of age,
2. The child must not have attained sufficient maturity of understanding to judge the nature and consequence of his conduct,
3. Incapacity must exist at the time of commission of the act.
In the case of Hiralal-Mallick-Versus-State-of-Bihar-1977 the accuse was a child of 12 years old, threatened the diseased that he would cut him to pieces. Accordingly the accused killed him with knife. In the prosecution the difference was pleaded under section 83 of the code. The trial court convicted the child and held that the boy was not entitled to get the immunity under section 83 because his words, gestures, assault, keeping a knife in his pocket, stabbing the deceased etc. showed that the child had attained sufficient maturity of understanding to judge the wrongful act and also the consequence of his act. The supreme court upheld the conviction by the lower court and on the ground that accused child have sufficient maturity to understand the nature and when consequences of the act, while stabbing the deceased.
1. An act done by a child above 7 years but under 12 years of age,
2. The child must not have attained sufficient maturity of understanding to judge the nature and consequence of his conduct,
3. Incapacity must exist at the time of commission of the act.
In the case of Hiralal-Mallick-Versus-State-of-Bihar-1977 the accuse was a child of 12 years old, threatened the diseased that he would cut him to pieces. Accordingly the accused killed him with knife. In the prosecution the difference was pleaded under section 83 of the code. The trial court convicted the child and held that the boy was not entitled to get the immunity under section 83 because his words, gestures, assault, keeping a knife in his pocket, stabbing the deceased etc. showed that the child had attained sufficient maturity of understanding to judge the wrongful act and also the consequence of his act. The supreme court upheld the conviction by the lower court and on the ground that accused child have sufficient maturity to understand the nature and when consequences of the act, while stabbing the deceased.
◆Intixication:- Intoxication is also a ground of general defence of criminal liability. Section 85 and 86 of Indian penal code, 1860 deals with the general defence relating to the intoxication which runs as follows-
Section 85 "Nothing is an offence which is done by a person, who at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
Section 85 "Nothing is an offence which is done by a person, who at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
Section 86, In case where an act done is not an offense unless done with a particular knowledge of intent, a person who does the act in a state of intoxication Shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated unless the thing which intoxicated him was administered to him without his knowledge or against his will.
Intoxication is the result of consuming drinks or drugs. Intoxicated person behave abnormally. Such persons may not have the rational thinking and do not know the nature of the acts, they are doing and do not know their effects and legal consequences. Therefore he may be axcused from criminal liability. However in order to avoid this defence, the burden of proof of lack of capacity lies upon the accused person.
Section 85 and 86 of the Indian penal code 1860 deals with the law relating to the intoxication thus,
Drunkenness is the spaces of Madness for which the man is to blame drunkenness is of two kinds namely:
1. voluntary intoxication
2. involuntary intoxication
Voluntary drunkenness is no defence for the commission of a crime. Intoxication is a voluntary is basis of madness, which is in party's power to abstain from and he must answer for it. But where drunkenness is involuntary, as when a man is forced to drink or when he is made drunk through stratagem or the fraud of others, or through ignorence or when any intoxicant is administered to him without his knowledge or against his will, his criminal act will be judged with reference to his mental condition at the time the act was committed. Such a case is exactly on the same footing as unsoundness of mind.
◆ Ingredients:- To invoke the defence of involuntary intoxication under section 85 the following conditions are to be satisfied-
1. Incapable of knowing the nature of the act; or
2. That he was doing other contrary to the law;
3 That the thing which intoxicated him was given to him without his knowledge or against his will.
According to Section 85 of the Indian penal code 1860 voluntary intoxication is no excuse for the commission of a crime and hence, it cannot be pleaded as a defence. But, involuntary intoxication can be excused under certain circumstances and hence, it can be pleaded as a defence under section 85 of the IPC as it affords the same protection to an accused as section 84 to a person of unsound mind.
Intoxication is the result of consuming drinks or drugs. Intoxicated person behave abnormally. Such persons may not have the rational thinking and do not know the nature of the acts, they are doing and do not know their effects and legal consequences. Therefore he may be axcused from criminal liability. However in order to avoid this defence, the burden of proof of lack of capacity lies upon the accused person.
Section 85 and 86 of the Indian penal code 1860 deals with the law relating to the intoxication thus,
Drunkenness is the spaces of Madness for which the man is to blame drunkenness is of two kinds namely:
1. voluntary intoxication
2. involuntary intoxication
Voluntary drunkenness is no defence for the commission of a crime. Intoxication is a voluntary is basis of madness, which is in party's power to abstain from and he must answer for it. But where drunkenness is involuntary, as when a man is forced to drink or when he is made drunk through stratagem or the fraud of others, or through ignorence or when any intoxicant is administered to him without his knowledge or against his will, his criminal act will be judged with reference to his mental condition at the time the act was committed. Such a case is exactly on the same footing as unsoundness of mind.
◆ Ingredients:- To invoke the defence of involuntary intoxication under section 85 the following conditions are to be satisfied-
1. Incapable of knowing the nature of the act; or
2. That he was doing other contrary to the law;
3 That the thing which intoxicated him was given to him without his knowledge or against his will.
According to Section 85 of the Indian penal code 1860 voluntary intoxication is no excuse for the commission of a crime and hence, it cannot be pleaded as a defence. But, involuntary intoxication can be excused under certain circumstances and hence, it can be pleaded as a defence under section 85 of the IPC as it affords the same protection to an accused as section 84 to a person of unsound mind.
The relevant leading English case on this point is:
Director of public prosecutions v. Beard-1920-a-c-479
Fact: Beard was a night watchman. He caught a girl of 13 years old to have carnal knowledge (to rape her). The girl cried and tried to escape. He put a cloth gag in her mouth to prevent cries; and placed his hand over her mouth and thumb on her throat. The girl died by suffocation. He pleaded the defence of intoxication, as he was in drunken state at the time of committing the offence the trial court convicted him for murder. But the court of appeal reduced the sentence to culpable homicide. However the House of Lords resorted the conviction for murder and laid down the following points on the "law of intoxication"-
1. The insanity produced by drunkenness is the defence to the crime charged.
2. The evidence of drunkenness is taken into consideration to determine, whether the accused had an intent to commit the offence.
3. Mere establishment of the fact that a man's mind was so affected by drink affords no protection.
Excessive drunkenness is not a defence. The law of drunkenness has been very nicely summarised in the case of-
Basdev vs. state of pepsu AIR1956 SC488,
The accused in the instant case was a retired Military officer. He was charged with murder of a 15 years old boy. The accused fired at the boy in a marriage for refusing to step aside a little so that he might occupy a convenient seat. It was found that he was drunk but was not so much under it influence. The trial quote sentenced him for life imprisonment and the same was upheld by the Pepsu Hight court. Than, the appellant went to the Supreme Court by Special Leave of Appeal. The Supreme Court following the decision in Beard's case held that the offence was reduced to culpable homicide not amounting to murder and Section 304 of I.P.C.
While rejecting the plea of the accused to allow him the benefit of section 86 and reduce the charge from Murder to culpable homicide the supreme court lay down the following rules for guidance viz.,
1. In the absece of understanding of the nature and consequences of an act, weather produced by drunkenness or otherwise, is a defence to the crime charged.
2. The evidence of drunkenness which renders the accused incapable of forming the specific interest essential to constitute the crime, should be taken into consideration with other proved facts in order to determine whether or not he had this intent;
3. The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was effected by drink so that he more readily gave way to some violent passion does not rebut the presumption of his acts.
Director of public prosecutions v. Beard-1920-a-c-479
Fact: Beard was a night watchman. He caught a girl of 13 years old to have carnal knowledge (to rape her). The girl cried and tried to escape. He put a cloth gag in her mouth to prevent cries; and placed his hand over her mouth and thumb on her throat. The girl died by suffocation. He pleaded the defence of intoxication, as he was in drunken state at the time of committing the offence the trial court convicted him for murder. But the court of appeal reduced the sentence to culpable homicide. However the House of Lords resorted the conviction for murder and laid down the following points on the "law of intoxication"-
1. The insanity produced by drunkenness is the defence to the crime charged.
2. The evidence of drunkenness is taken into consideration to determine, whether the accused had an intent to commit the offence.
3. Mere establishment of the fact that a man's mind was so affected by drink affords no protection.
Excessive drunkenness is not a defence. The law of drunkenness has been very nicely summarised in the case of-
Basdev vs. state of pepsu AIR1956 SC488,
The accused in the instant case was a retired Military officer. He was charged with murder of a 15 years old boy. The accused fired at the boy in a marriage for refusing to step aside a little so that he might occupy a convenient seat. It was found that he was drunk but was not so much under it influence. The trial quote sentenced him for life imprisonment and the same was upheld by the Pepsu Hight court. Than, the appellant went to the Supreme Court by Special Leave of Appeal. The Supreme Court following the decision in Beard's case held that the offence was reduced to culpable homicide not amounting to murder and Section 304 of I.P.C.
While rejecting the plea of the accused to allow him the benefit of section 86 and reduce the charge from Murder to culpable homicide the supreme court lay down the following rules for guidance viz.,
1. In the absece of understanding of the nature and consequences of an act, weather produced by drunkenness or otherwise, is a defence to the crime charged.
2. The evidence of drunkenness which renders the accused incapable of forming the specific interest essential to constitute the crime, should be taken into consideration with other proved facts in order to determine whether or not he had this intent;
3. The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was effected by drink so that he more readily gave way to some violent passion does not rebut the presumption of his acts.
◆Conclusion:
From the above discussion at conclusion we can say that in general if a person had committed an offence then he is subjected to punishment as per criminal law however there are some exception whether the culpable accused will completely immune from criminal liability, as discussed Supra minority and intoxication are of few example as well as grounds.
From the above discussion at conclusion we can say that in general if a person had committed an offence then he is subjected to punishment as per criminal law however there are some exception whether the culpable accused will completely immune from criminal liability, as discussed Supra minority and intoxication are of few example as well as grounds.
The Specific Relief (Amendment) Bill 2018
January 05, 2019
The Parliament has passed the Specific Relief (Amendment) Bill 2018, proposing to bring significant amendments to Specific Relief Act 1963. On July 23, the Rajya Sabha passed Amendment Bill, which was passed by the Lok Sabha on March 15, 2018.
One of the major features of the amendment is that it takes away the discretionary power of courts in ordering specific performance of contract, by stating that specific performance of contract should be compulsorily enforced by the Court. As per Section 10 of the Act (as it stood before amendment) specific performance of contract ‘may’ be enforced by the Court in its discretion. As a result of wide discretionary powers, the courts often award damages for breach of contract as a general rule and grant specific performance as an exception. As per the present scheme of the Act, to obtain a decree of specific performance, the plaintiff has to appeal to the discretionary powers of the Court on the basis of grounds in Section 20. Section 20( as it stood before amendment) states that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. This Section 20 has been totally done away with by the amendment, by substituting it with another provision.
The amendment wholly substitutes Section 10 by stating thatspecific performance of a contract shall be enforced by the court.Similar discretionary power of Courts as per Section 11 in granting specific performance in relation to trusts is also taken away by the amendment, by making it compulsory even for trusts.
The effect of the amendment will be that the plaintiff can seek specific performance of contract as a matter of course, without having to prove special circumstances.
Also, Section 21, which had earlier stated that "in a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance" has been amended by substituting the words "either in addition to, or in substitution of" with "in addition to". Therefore, compensation need not be sought for as an alternate relief, and can be claimed in addition to specific performance.
The other noteworthy features of the amendment bill are given below:
Substituted performance.
Section 20 of the Act which deals with the guidelines for exercising discretion for granting specific performance is substituted wholly with another provision which deals with ‘substituted performance’.
The amendment introduces the concept of ‘substituted performance’. As per this, a party who is affected by the breach of contract can choose to get the contract performed by a third party, or by its own agency, at the cost of the contracting party at default. The affected party has to give prior notice of thirty days to the other party expressing his intention to seek substituted performance. This concept is sought to be introduced in the Act by substituted Section 20. It is also clarified that a party by obtaining substituted performance forfeits his right to get specific performance of contract enforced through Court.
No need to plead readiness and willingness to perform contractual obligations.
As per Section 16(c) of the Act (before amendment), a party has to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. The Explanation to the Section states that he plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
Courts have been very strict regarding this requirement of S.16(c) of the Specific Relief Act which provision has been couched in negative terms. The judicial decisions state that S.16(c) is not an empty formality and readiness and willingness are to be proved right from the date of the contract till the date of the decree. Even if it is established in evidence that the plaintiff has always been ready and willing to perform his part, in the absence of a plea in the plaint regarding readiness and willingness, no Court will grant decree for specific performance to the plaintiff. Several cases have got dismissed solely because of the failure to make such a plea in the plaint.
The amendment relaxed this stringent condition by stating that the party need only prove readiness and willingness. The specific requirement to ‘aver’ is sought to be removed by the amendment. The words “who fails to aver and prove” in Section 16(c) is substituted by the words “who fails to prove” .
Infrastructure Projects.
The amendment introduces a special categorization of ‘infrastructure projects’ . The new Schedule introduced by the amendment contains the list of activities which will be treated as ‘infrastructure projects’. Such activities are in the sectors of transportation, energy, water & sanitation, communication and social & commercial infrastructure.
The Department of Economic Affairs is the nodal agency for specifying various categories of projects and infrastructure sub-sectors, which is provided as Schedule to the Bill and it is proposed that the said Department may amend the Schedule relating to any such category or sub-sectors
No injunction to be granted against infrastructure projects.
Section 20A proposed to be introduced by the amendment restrains Courts from granting injunction in a suit involving contract relating to an infrastructure project, where granting injunction would cause impediment or delay in the progress or completion of such infrastructure project.
Special Courts for infrastructure projects.
Special Courts are proposed for determination of suits relating to infrastructure projects.
Fixing time limit of twelve months for case disposal.
The amendment fixes a time limit of twelve months for disposal of cases under the Act, through the newly proposed Section 20C.
Power of court to engage experts.
The newly introduced Section 14A confers power on the courts to engage experts to seek opinion on any issues in the suit.
As per the Statement of Objects and Reasons of the Amendment Bill, the Act is not in tune with the rapid economic growth happening in our country and the expansion of infrastructure activities that are needed for the overall development of the country.
The Realist Theory of Law, American Realism, Scandinavian Realism
January 05, 2019
The realist movement in United States represents the latest branch of sociological jurisprudence which concentrates on decisions of law courts. The realist contends that law has emanated from judges, therefore law is what courts do and not what they say. For them judges are the lawmakers. However modern realism differs from the sociological school as unlike the latter, they are not much concerned about the ends of law You know what I have so many proposals still of low but their main attention is on the same to pick up the vision of low and it actually functioning it is for this reason that some authorities have called really stop road as the left wing of the fountain any school moment is called released because it's a prude is that long as it is in actual working and its effects according to realist school the law is emanating from the judges and the sovereign in the court the realist approach is a part of sociological school of jurisprudence and sometimes it is called as left wing of sociological school it differs from sociological school in respect of that it is little concerned with the ends of law it concentrates on scientific observation of law and its making and working this movement is named as released as because the approach of study law as it is actual working and its consequences it criticises the traditional definition of law that is it is a body of rules and principles with quotes and its force in Britain the eminent judges gave a great support for the development of Love by giving the judgement and interpreting the statutes the realistic movement was rooted in Scandinavia by famous jurist hagar Storm 1868 to 1939 Oliver honour 1987 Ross 1899 etc letter on this was developed in America by salmond and homes.
Imperative theory of JURISPRUDENCE, Analytical School of Jurisprudence,positivistic theory of John Austin
January 05, 2019
◆Introduction:- John Austin was born in 1790, he joined the Army and served as an Army Officer for 5 years until 1812. The Army life of strict discipline and command had its reflection in the Austinian concept of law. Austin published "Province of Jurisprudence Determined" in 1832. He died in 1859 and his works were published by his wife Sarah Austin in 1861.
John Austin is an influential jurist is considered to be the father of English Jurisprudence. He confined his study only in the positive law and applied analytical method for this purpose. His theory of law is usually called the imperative theory because of his emphasis on command.
John Austin is an influential jurist is considered to be the father of English Jurisprudence. He confined his study only in the positive law and applied analytical method for this purpose. His theory of law is usually called the imperative theory because of his emphasis on command.
◆ Imperative theory of John Austin:-
The emergence of positivism in philosophy is the result of a shift in emphasis from metaphysical to empirical trends in theoretical philosophy. When thinking process on the basis of deduction from pre-conceived ideals, it is known as metaphysical; when it is proceeds on the study of facts and experiences, it is termed as empirical or positivistic.
John Austin is the chief exponent of the analytical School of jurisprudence. According to the Austin "law and morality are separate and that all human-made (positive) law can be traced back to human lawmakers, is known as legal positivism." Drawing heavily on the thought of Jeremy Bentham Austin was the first legal thinker to work out of full-blown positivistic theory of law.
According to John Austin there are two types of law, namely-
1. Laws properly so called that is created by the sovereign, and;
2. Laws in properly so called that is natural or religious rules, moral rules.
Austin attributed three elements with his theory of positive law which are-
●Sovereign,
●Command ,and
●Sanction
The emergence of positivism in philosophy is the result of a shift in emphasis from metaphysical to empirical trends in theoretical philosophy. When thinking process on the basis of deduction from pre-conceived ideals, it is known as metaphysical; when it is proceeds on the study of facts and experiences, it is termed as empirical or positivistic.
John Austin is the chief exponent of the analytical School of jurisprudence. According to the Austin "law and morality are separate and that all human-made (positive) law can be traced back to human lawmakers, is known as legal positivism." Drawing heavily on the thought of Jeremy Bentham Austin was the first legal thinker to work out of full-blown positivistic theory of law.
According to John Austin there are two types of law, namely-
1. Laws properly so called that is created by the sovereign, and;
2. Laws in properly so called that is natural or religious rules, moral rules.
Austin attributed three elements with his theory of positive law which are-
●Sovereign,
●Command ,and
●Sanction
● Sovereign:- According to Austin sovereign is any person or body of persons whom the bulk of political society habitually office but who does not habitually over any other person or institution.
A sovereign is a political is superior person, perhaps can be a individual person, for example king, queen or a group of persons example Parliament, Congress, House of Lord etc. Austin thought that all independent political societies, by their nature, have a sovereign. So accordingly two important aspects of sovereignty emerges, namely-
1. The bulk of the society shall pay habitually obedience to a determinate and common superior. This is called positive mark of sovereignty.
2. The superior shall not be in the habit of obedience to any other human superior. This is called the negative mark of sovereignty.
A sovereign is a political is superior person, perhaps can be a individual person, for example king, queen or a group of persons example Parliament, Congress, House of Lord etc. Austin thought that all independent political societies, by their nature, have a sovereign. So accordingly two important aspects of sovereignty emerges, namely-
1. The bulk of the society shall pay habitually obedience to a determinate and common superior. This is called positive mark of sovereignty.
2. The superior shall not be in the habit of obedience to any other human superior. This is called the negative mark of sovereignty.
● Command:- "A command are expression of desires given by superior to inferior", that means command issued by a sovereign to the people of independent political society. The command is backed up by credible threats of sanction that is punishment or other adverse consequences in the event of non-compliance. The essential components of the command are:-
1.Duty:- The obligation to comply with the command.
2.Right:- The capacity to direct another to do a particular act or forbear from doing a particular act.
3.Sanction:- the punishment which would be the consequence of non-compliance compliance of command.
Commands may be particular or general, according to Austin a particular command enjoins or forbids a particular act specifically determined; whereas a general command enjoins act or forbearance of a class or series forming a course of conduct.
1.Duty:- The obligation to comply with the command.
2.Right:- The capacity to direct another to do a particular act or forbear from doing a particular act.
3.Sanction:- the punishment which would be the consequence of non-compliance compliance of command.
Commands may be particular or general, according to Austin a particular command enjoins or forbids a particular act specifically determined; whereas a general command enjoins act or forbearance of a class or series forming a course of conduct.
●Sanction:- The third important element of Austin's definition of law is 'sanction', which may be considered as inbuilt in the idea of command. It signifies a method of coercion to enforce the command not, leaving the citizen free to decide whether to obey the law, but to make him obey irrespective of whether he likes it. Sanction consists of the penalties inflicted on the orders of the sovereign for the violation of law; if for instance, the sovereign decrees that no driver should exceed 60 km per hour on highway, a person who violates that command will be liable to pay fine or undergo imprisonment. Thus, the sovereign power, namely the state, has given a command and enforced it by a sanction.
According to Austin the essentials of every law is like:-
According to Austin the essentials of every law is like:-
1.Sovereign is the source of law. Because sovereign are the politically superior person or group of persons, who makes the positive law.
b. Law is a command of sovereign, because whatever the law created by the sovereign i.e., politically superior person which has to be obeyed by the subordinate persons.
c. Command implies sanction. It means that the laws are the commands, which obliged to comply by the people on the threat of sanction that is punishment or penalty on its non-compliance.
b. Law is a command of sovereign, because whatever the law created by the sovereign i.e., politically superior person which has to be obeyed by the subordinate persons.
c. Command implies sanction. It means that the laws are the commands, which obliged to comply by the people on the threat of sanction that is punishment or penalty on its non-compliance.
●Criticism:- The positivistic theory propounded by Sir John Austin has been possessing an important place in the study of Jurisprudence. However the positivistic theory of Austin is not free from criticisms. Many philosophers had criticized his theory as follows:
1. The most forceful criticism of Austin's theory came from natural law. It was pointed out by Lon Fuller that law is a kind of order, while he has an internal moral structure to which it must confirm in order to be called law. Austin's definition does not link law with justice, which is the aim and purpose of law.
2.The exclusion of sociological content from law is the main target of criticism of the sociological school. Because he has ignored the sentiments of the community. It is the conviction of the people that the law has prescribed the right course of conduct that really constitutes its authority and force. At best, sanctions enforce obedience against a recalcitrant minority, but when there is a General feeling in the community that a law is totally oppressive and unjust, there will be universal disobedience. Sanction cannot enforce obedience in such a situation.
3. Sanctions, as an essential element of law is true only in case of criminal law; civil law aims mostly at the proper maintenance of legal obligations and does not impose any punishment.
4. Henry Maine, who belongs to the historical school of thought, has described Austin's theory as historically inaccurate. In ancient States the sovereign where not concerned with laying down the laws. Customs and popular usages established laws in those states. The laws were then not the commands of the sovereign, but were adopted by the people for themselves.
5. Another drawback of Austin's theory was that he did not reveal the reasoning which led him to his concept of law, but simply made certain assumptions and applied them logically.
1. The most forceful criticism of Austin's theory came from natural law. It was pointed out by Lon Fuller that law is a kind of order, while he has an internal moral structure to which it must confirm in order to be called law. Austin's definition does not link law with justice, which is the aim and purpose of law.
2.The exclusion of sociological content from law is the main target of criticism of the sociological school. Because he has ignored the sentiments of the community. It is the conviction of the people that the law has prescribed the right course of conduct that really constitutes its authority and force. At best, sanctions enforce obedience against a recalcitrant minority, but when there is a General feeling in the community that a law is totally oppressive and unjust, there will be universal disobedience. Sanction cannot enforce obedience in such a situation.
3. Sanctions, as an essential element of law is true only in case of criminal law; civil law aims mostly at the proper maintenance of legal obligations and does not impose any punishment.
4. Henry Maine, who belongs to the historical school of thought, has described Austin's theory as historically inaccurate. In ancient States the sovereign where not concerned with laying down the laws. Customs and popular usages established laws in those states. The laws were then not the commands of the sovereign, but were adopted by the people for themselves.
5. Another drawback of Austin's theory was that he did not reveal the reasoning which led him to his concept of law, but simply made certain assumptions and applied them logically.
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