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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW




FOUNDATION OF LAW

FINAL DRAFT

On

NECESSITY AS AN ARCHITECTURE OF LAW

Submitted to : Submitted by :
Deepika urmaliya Rishabh Gupta
Asst. professor Roll No.. 100
RMLNLU 1
st
Semester
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ACKNOWLEDGEMENT

The successful completion of this project is the result of constant and rigorous hard work of
weeks, browsing through the different websites and consulting various books of renowned
authors and reading different journals by eminent scholars of related subject.
First and foremost, I would like to thank my Subject professor, Ms. Deepika Urmaliya who was
always there to guide me with the project outlines and whose effective sense of understanding of
the subject and imparting the same to me goes a long way down to the eventual compilation of
the project.
I would also like to thank other college staff, notably the print out department and my friends
who were ever present. Eventually I would also like to thank my parents whose constant blessing
is indispensable for any activity I undertake.
Mistakes have the habit of creeping in advertantly into the human nature but I sincerely hope that
the Teachers would find this Project acknowledgeable in every way.


RISHABH GUPTA
ROLL NO. 100







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TABLE OF CONTENT

Acknowledgement..(2)

Table of Content.(3)

Findings..(4)

Literature survey.....................................................................................................(5)

Hypothesis......................................................................................(6)

Introduction................................................................................................(7)

Relativity of Necessity and law.(9)

Necessity as a profounder of natural justice.(10)
1,) equality &human rights

Significance of necessity as an architecture of law(14)
Requirement of law in some new areas

Solidity of necessity as an architecture of law.(16)
Vishaka vs state of Rajasthan



Conclusion..(19)


Bibliography(21)
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FINDINGS

In my reserch I found that Necessity has always been among the reasons behind making a new
law. Necessity has played a vital role in the making of law from the ancient period and is also
prevailing as a major part in the architecture of law. During my research I also found out that
there are many cases in which the the necessity of law has been felt and also new laws are
required to be made according to the dynamic environment.













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LITERATURE SURVEY

The contribution of the books as duly cited was immense in the completion of the project. They
acted as a reliable guide and companion throughout the entire research. The content provided by
the document as referred in the making of the project, were capable of providing authenticity to
the research. Above all information from a series of reference books were also taken into account
to provide further emphasis upon the research.

Dr B.N Mani Tripathi, Jurisprudence Legal Theory
This book provides an accessible introduction to jurisprudence and legal theory. It sets
out a course of study that offers a highly effective series of introductions into a wide
variety of theories and theoretical perspective.

Dr. Avtar Singh, Introduction to Jurisprudence
This` book is a well-known classic, an established leader among standard textbooks
on jurisprudence. The book presents a thoroughly readable survey of contemporary
jurisprudence. Aiming at a practical and common sense approach this book has
also brought the latest techniques of modern analytical philosophy.

S.N. Dhyani, Jurisprudence & Indian Legal Theory
This book makes legal theory more thought provoking and more alive area of scholastic
reflection pursuit and learning. An effort has been made in this edition to assimilate
current socio-politic-cultural ethos, new vistas, judges, a nd teaching and practicing
fraternity of law of study interpret and expound law on the basis of social and cultural
parameters of our heritage and value-goals.

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HYPOTHESIS

The researcher believes that necessity plays a vital role in the architecture of law and is one of
the most important basis of making a law. Necessity and law are related to each other and also is
the basis behind most of the laws. The research would enquire upon this inquisitive mind of the
researcher.


















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INTRODUCTION


Research based on the necessity as an architecture of law is a brief study from the role of
necessity in the development of law as well as increasing credibility, accountability and
efficiency of law. Necessity acts as an architecture of law because it somehow made the law to
develop time to time according to the society which even tends to emerge terms of natural
justices such as equality, sovereignty , human rights as well.

The researcher seeks to understand the role of necessity as well as development of law due
to necessity and of establishing the rules and guidelines which was not mentioned or nothing
has been written earlier or there is an urge to amend or add to the guidelines specified
earlier. The necessity as an architecture of law is just the urge of having some rules and
regulations under those specific cases in which nothing has been described by the law or
whatever have been said or written in law is not just enough to provide a jurisdiction over
certain cases.

Necessity acts as an architecture of law because it somehow made the law to develop time to
time according to the society which even tends to emerge terms of natural justices such as
equality, sovereignty , human rights as well. To clarify the role of necessity in law, acting of
necessity propounded of natural justice, significance of necessity in law and stability of
necessity as an architecture of law.
It keep on providing the outlook of society too by establishing or reframing the law according to the
legal as well as social development. Researcher will try to prove this from the cases which acts
as an architecture of law.

It acts as a tool for the judicial society to formulate, perform, describe as well s evaluate the laws ,
rules and regulations sustaining and biding in the society and according to the merits mentioned
above if there is any requirement for the changes or amendment or even establishing a complete
guideline in a very new field in which nothing has been said earlier to improve the legal system.

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It gives a sheer outlook of the society and the demands of having some new or changing rules and
regulations according to the changing trends of the ideology, culture and perceiving the changes
happening continuously in the world. It also generates the idea about the development of law from
the past and creating a better understanding day by day. To clarify the role of necessity in law,
acting of necessity propounded of natural justice, significance of necessity in law and stability of
necessity as an architecture of law.
















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RELATIVITY OF NECESSITY AND LAW.

Necessity is the mother of all inventions is very true.
1
Almost all of the discoveries and
inventions happened just because of the necessity. If we dont want or there is a urge then only
we can attain the goal. History tells that in human development necessity to achieve the goal is
required.
This is rightly said for the law too. It is equivalently true in the case of law as far as necessity is
concerned. It is the outcome of sudden requirement or urge to have something to deal with the
problems law is facing in certain fields to provide a proper mechanism in dealing with the
several cases. It is again the necessity which leads us to think of new forms of government-
whether Socialistic or otherwise in pattern. As new needs arise, fresh methods are devised to
meet them New plans are hatched to find solutions to different problems. Necessity makes us
bold, zealous and eager enough to fulfill our needs. Necessity is a blessing in disguise. Where
there is any necessity, there is some invention, some research, in order to fulfill that necessity.
All our inventions and discoveries are the direct result of our pressing needs.







1
THE REPUBLIC, Book II, 369c, Plato
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NECESSITY AS A PROFOUNDER OF NATURAL JUSTICE

Establishment of equality and emergence of human rights.

A right is a freedom of some kind. It is something to which you are entitled by virtue of being
human.
The principle on which human rights is based is the respect for the individuals. Each person is a
moral and rational is the fundamental acceptance under this and each and everyone deserves to
be treated with dignity. Human rights is universal in nature. It is entitled to everyone across the
countries.
Yet many people, when asked to name their rights, will list only freedom of speech and belief
and perhaps one or two others. There is no question these are important rights, but the full scope
of human rights is very broad. They mean choice and opportunity.
In ages past, there were no human rights. Then the idea emerged that people should have certain
freedoms. And that idea, in the wake of World War II, resulted finally in the document called
the universal declaration of human rights and the thirty rights to which all people are entitled.







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HISTORY OF HUMAN RIGHTS AND THE ROLE OF
NECESSITY FOR ITS EMERGENCE

In 539 B.C. The first king of Persia, Cyrus the great occupied the city of Babylon. But slaves
were freed by him. He later addressed establishing racial equality that each person have the right
to choose it own religion and community.
The Spread of Human Rights
From Babylon, the idea of human rights spread quickly to India, Greece and eventually Rome.
Documents asserting individual rights, like the Magna Carta (1215), the Petition of Right (1628),
the US Constitution (1787), the French Declaration of the Rights of Man and of the Citizen
(1789), and the US Bill of Rights (1791) are those landmarks incidents which establishes the
base for the human rights in the todays world.
The Magna Charta, or Great Charter, was the most important supporting in the history that
affects the English world. .In 1215,violation had been done by the king john and his subjects
forced him to sign the magna carta, which latterly considered as a milestone in establishing the
base of human rights.

Petition of Rights-
Another important milestone was the production of petition of right by English parliament. It
was considered as a very crucial part in the field of human rights. Refusal by Parliament to
finance the kings unpopular foreign policy had caused his government to exact forced loans and
to quarter troops in subjects houses as an economy measure.
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2
http://www.humanrights.com/what-are-human-rights/brief-history/cyrus-cylinder.html

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The Constitution of the United States of America (1787) and Bill of Rights
In Philadelphia, the constitution of U.S.A. in 1787 is the fundamental law in of the US federal
system. It is the oldest written constitution. It defines the principal parts of the leadership,
government and their jurisdictions as well as the basics rights of the citizens. The Bill of Rights
protects freedom of speech, freedom of religion.

THE FIRST GENEVA CONVETION 1864

In 1864, sixteen European countries and several American states attended a conference in
Geneva, at the invitation of the Swiss Federal Council, on the initiative of the Geneva
Committee.
The main principles laid down in the Convention and maintained by the later Geneva
Conventions provided for the obligation to extend care without discrimination to wounded and
sick military personnel and respect for and marking of medical personnel transports and
equipment with the distinctive sign of the red cross on a white background. .
In April 1945, delegates from fifty countries met in San Francisco full of optimism and hope.
The goal of the United Nations Conference on International Organization was to fashion an
international body to promote peace and prevent future wars. The ideals of the organization were
stated in the preamble to its proposed charter:
We the peoples of the United Nations are determined to save succeeding generations from the
scourge of war, which twice in our lifetime has brought untold sorrow to mankind.
3





3
http://www.humanrights.com/what-are-human-rights/brief-history/cyrus-cylinder.html

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The Universal Declaration of Human Right (1948)

By 1948, the United Nations new Human Rights Commission had captured the worlds
attention. Under the dynamic chairmanship of Eleanor RooseveltPresident Franklin
Roosevelts widow, a human rights champion in her own right and the United States delegate to
the UNthe Commission set out to draft the document that became the Universal Declaration of
Human Rights. Roosevelt, credited with its inspiration, referred to the Declaration as the
international Magna Charta for all mankind. It was adopted by the United Nations on December
10, 1948.
In its preamble and in Article 1, the Declaration unequivocally proclaims the inherent rights of
all human beings: Disregard and contempt for human rights have resulted in barbarous acts
which have outraged the conscience of mankind, and the advent of a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people...All human beings are born free and
equal in dignity and rights.
4









4
http://en.wikepedia.org/wiki/UniversalDeclarationofHumanRights
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SIGNIFICANCE OF NECESSITY AS AN ARCHITECTURE OF
LAW

Need of a law in some new areas.
Gay rights in India-
Homosexuality is a very burning as well as it is considered as the taboo subject for the Indian
society even for the government. .In recent years, however, attitudes towards homosexuality
have shifted slightly. In particular, there have been more depictions and discussions of
homosexuality in the Indian news media. .
On 2 July 2009, the Delhi High Court decriminalized homosexual intercourse between
consenting adults, and this new stand of decriminalization is applicable throughout the territory
of India,

where Section 377 of the Indian Penal Code was adjudged to violate the fundamental
right to life and liberty and the right to equality as guaranteed by the Constitution of
India. Homosexual intercourse was a criminal offence until 2009 under the Indian penal code,
1860. This law was struck down in 2009 by the Delhi High Court in NAZ foundation vs govt. of
NCT of Delhi, which found Section 377 and other legal prohibitions against private, adult,
consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights
provided by the Indian Constitution. Decisions of a High Court on the constitutionality of a law
apply throughout India, and not just to the territory of the state over which the High Court in
question has jurisdiction.
5



5
Kusum Ingots v Union of India. (2004) 6 SCC 254: "An order passed on a writ petition questioning the
constitutionality of a Parliamentary Act whether interim or final, keeping in view the previous contained in Clause
(2) of article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to
the applicability of the act."
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However, even after the pronouncement of verdict, there have been (rare) incidents of
harassment of homosexual groups.
6
Religion has played a role in shaping Indian customs and traditions. While homosexuality has
not been explicitly mentioned in the religious texts central to Hinduism, the largest religion in
India, Hinduism has taken various positions, ranging from positive to neutral or antagonistic.
7















6
Pervez Iqbal Siddiqui (28 December 2010). "Crackdown on gay party in Saharanpur. 13 held". The Times of India.
Retrieved 20 January 2011
7
http://en.wikipedia.org/wiki/LGBTrightsinIndia

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SOLIDITY OF NECESSITY AS AN ARCHITECTURE OF LAW

Vishaka vs. state of Rajasthan.

The case is of the brutal gang rape of a publicly employed social worker in a village in Rajasthan
during the course of her employment. The petitioners bringing the action were various social
activists and non-governmental organizations. The first basic reason behind bringing such an
action was to find correct way to realization of the genuine concept of gender equality.
Under Article 32 of the Indian Constitution, an action was filed to place the enforcement basic
fundamental rights for the women during the course of their employment. it sought to establish
the enforcement of Articles 14, 15, 19(1)(g) and 21 of the Constitution of India and Articles 11
and 24 of the Convention on the Elimination of All Forms of Discrimination against Women.
law
Constitution of India
Article 14 (the right to equality)
Article 15 (the right to non discrimination)
Article 19(1)(g) (the right to practice ones profession)
Article 21 (the right to life)
Decision
The fundamental right to carry on any occupation, trade or profession depends on the
availability of a safe working environment. The right to life means life with dignity. The
primary responsibility for ensuring such safety and dignity through suitable legislation, and the
creation of a mechanism for its enforcement, belongs to the legislature and the executive. When,
however, instances of sexual harassment resulting in violations of Arts 14, 19 and 21 are brought
under Art 32, effective redress requires that some guidelines for the protection of these rights
should be laid down to fill the legislative vacuum. In light of these deliberations, the Court
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outlined guidelines which were to be observed in order to enforce the rights of gender equality
and to prevent discrimination for women in the workplace. These guidelines included the
responsibility upon the employer to prevent or deter the commission of acts of sexual harassment
and to apply the appropriate settlement and resolutions and a definition of sexual harassment
which includes unwelcome sexually determined behavior (whether directly or by implication)
such as:
physical contact and advances;
a demand or request for sexual favour;
sexually-colored remarks;
showing pornography;
any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
8

Furthermore the guidelines set out that persons in charge of a workplace in the public or private
sector would be responsible for taking the appropriate step to prevent sexual harassment by
taking the appropriate steps, including:
An appropriate complaints mechanism should be established in the workplace with the
appropriate redress mechanism; Where sexual harassment occurs as a result of an act or
omission by any third party or outsider, the employer and person-in-charge will take all steps
necessary and reasonable to assist the affected person in terms of support and preventive action.
Finally, the court stated that the guidelines are to be treated as a declaration of law in accordance
with Article 141 of the Constitution until the enactment of appropriate legislation and that the
guidelines do not prejudice any rights available under the protection of human rights act 1993.
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http://login.westlawindia.com
9
Vishaka v State of Rajasthan, AIR 1997 SC 3011
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NECESSITY IN THIS CASE

Supreme Court of India Vishaka & Ors vs State Of Rajasthan & Ors on August, 1997 Author:
Verma Bench: S V Manohar, B N Kirpal PETITIONER: VISHAKA & ORS. Vs.
RESPONDENT: STATE OF RAJASTHAN & ORS. DATE OF JUDGMENT: 13/08/1997
BENCH: CJI, SUJATA V. MANOHAR, B. N. KIRPAL ACT: HEADNOTE: JUDGMENT: J U
D G M E N T Verma, CJI: This Writ Petition has been filed for the enforcement of the
fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India
in view of the prevailing climate in which the violation of these rights is not uncommon. With
the increasing awareness and emphasis on gender justice, there is increase in the effort to guard
such violations; and the resentment towards incidents of sexual harassment is also increasing.
The present petition has been brought as a class action by certain social activists and NGOs with
the aim of focussing attention towards this societal aberration, and assisting in finding suitable
methods for realisation of the true concept of 'gender equality'; and to prevent sexual harassment
of working women in all work places through judicial process, to fill the vacuum in existing
legislation.
10











10
http://indiankanoon.org/doc/1031794/
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CONCLUSION

Necessity helps in making laws in some specific unknown areas

It is the most guided essential tool which permits the judicial system to play their role more
efficiently. Necessity works as an architecture of law by establishing new set of rules for the
efficiency of law and order. Necessity helps in making laws in some specific unknown areas.
From the past, it can be seen that almost all the famous terms and landmark theories in the field
of law have been generated by the urge of necessity. Necessity is the mother of all inventions and
discoveries , this quote is rightly applicable even in the field of law. The change or new arrival
in the law is just the showing of the existed scenario of the society by that time. There is always
a change in the law according to the necessity in society which it shows the flexible nature of the
necessity. This is very helpful for the law to make it more efficient, effective as well as in
practicing proper law and formulating new rules and guidelines for the society.

It emerges the theory of natural justice including equality,
sovereignty, human rights etc.

Necessity inflicts the ideology of natural justice. From the past, it can be noted that feeding the
slaves by the king or because of any movement across a region to avoid the infringement of
rights or now terms human rights broadly. Natural justice including the equality, sovereignty,
human rights etc. are the outcome of the sudden urge of the necessity for the
socio-political development in the world. It is the result of necessity for the betterment of human
and providing the administrators an efficient mechanism to treat people equally and providing
them their rights. There are several profits done in the field of law which we are
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enjoying now a days.

It ensures better law system in the state-

Law system in a region, society or even in the country is properly established only if they have
the effective and efficient role of judiciary, legislatives and executives.
Credibility
Accountability
Efficiency.














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BIBLIOGRAPHY



BOOK REFERENCES

Following is the tentative list of references:

Manupatra
All India reporter
Supreme court cases


WEB SOURCES

http://login.westlawindia.com
http://www.bailii.org/ew/cases/
http://www.indiankanoon.org/
http://www.humanrights.com/what-are-human-rights/brief-history/cyrus-cylinder.html