KAMKUS COLLEGE OF LAW

JURISPRUDENCE-II
LL.M. 2nd SEM. (CODE: L-2002)

(1). Legal Person

CONCEPT OF PERSONALITY
 The word “person” is derived from the Latin word “persona” which
meant a mask worn by actors playing different roles in the drama.
 Until the sixth century the word was used to denote the part played by a
man in life. Thereafter, it began to be used in the sense of a living being
capable of having rights and duties.
 The term personality has a far wider connotation in law and includes
Gods, angels, idols and corporations etc.
 In Hindu law an ascetic (Sanyasi,) who has renounced the world, ceases
to have any proprietary rights and his entire estate is passed on to his
heirs and successors and his legal personality completely lost.

Definition of Legal /Juristic Person

 German jurist Zitelmana considers “will” as the essence of legal

personality. “Personality is the legal capacity of will, the bodily-ness of men
for their personality is a wholly irrelevant attribute”.
 Salmond defines a person as “any being to whom the law regards as
capable of rights and duties. Any being that is so capable, is a person,
whether human being or not and nothing that is not so capable is a person
even though he be a man”.
PERSON

NATURAL JURISTIC
CC
 REAL /NATURAL IMAGINARY
(HUMAN BEINGS) (ARTIFICIAL)

JURISTIC PERSONS
 Juristic or legal person is one to which law attributes legal personality.
Normally legal personality is granted by law to all human beings. Legal
personality, being an artificial creation of the law, may be conferred on
entities other than individual human beings.
 Legal persons may be of as many kinds as the law pleases. Corporations are
undoubtedly legal persons and the better view is that registered trade unions
and friendly societies are also legal persons, though not registered as
corporations.
 The first class of legal persons consists of corporations, namely those which
are constituted by the personification of groups (e.g. corporation aggregate)
or series of individual (e.g., for corporation sole).

PURPOSES OF INCORPORATION

 The most important purpose of incorporation is to enable traders to

embark upon commercial venture with limited liability. This is possible
only by the incorporation of the limited liability company. Company is so
formed by a number of persons becoming shareholders and registering the
company under Companies Act.

 Purpose of incorporation may be served also by means of trusteeship. The

trustees can represent the body of co-owners for the purpose of suing and
being sued. However, it must be observed that incorporation secures the
object in view much better than trusteeship.
 The element of permanence is absent in trusteeship. Incorporation, thus,
secures not only the element of unity but that of permanence as well.
 Incorporation can, therefore, be regarded as an indispensable legal concept
of abiding value.

KIND OF CORPORATIONS
Corporations are of two kinds:
I. Corporation aggregate
II. Corporation sole

I. CORPORATION AGGREGATE
A Corporation aggregate is a group of co-existing persons, a combination of
persons who are united together with a view to promote their common interest
which is generally the business or commercial interest.

Under Indian Law, corporation aggregate are all those bodies or

associations which are incorporated under a statute of Parliament or State
legislature. In this category come all trading and non-trading associations which
are incorporated under the relevant laws like the state trading corporation,
Municipal Corporation, Roadways Corporations, the public companies, State
Bank of India, Reserve Bank of India, The life insurance corporation, the
Universities, Panchayats, Trade Unions, and Co-operatives Societies. In fact
these are some examples of corporate aggregate.

 In Board of Trustees v. State of Delhi, the Supreme Court discussed in detail

the characteristics of corporate aggregate. In this case the Court was examining
the question, namely, whether the Board of Trustees, Ayurvedic and Unani Tibia
College is a corporation aggregate or not. The Court held the Board is not a
corporation.
 The Court observed in this case that a corporation aggregate has one main
capacity, namely, its corporate capacity. The corporate aggregate may be a
trading corporation or a non-trading corporation.
 The usual examples of a trading corporation are:
1. Chartered companies
2. Companies incorporated by special Acts of Parliament
3. Companies registered under Companies Act etc. However non- trading
corporations are illustrated by:
1. Municipal corporation
2. District Boards
3. Benevolent institutions i.e. charitable work
4. Universities etc.

In fact the essential of a corporation consist in the following:

1. Lawful authority of incorporation
2. The person to be incorporated
3. A name by which the persons are incorporated
4. A place and
5. Words sufficient in law to show incorporation.
No particular words are necessary for the creation of a particular corporation;
any expression showing an intention in corporation will be sufficient.

CHARACTERISTICS OF CORPORATE AGGREGATE

 The essential characteristic of a corporation aggregate is that it possesses a
personality distinct from that of its members. This doctrine was first approved
by the House of Lords in Soloman v. Soloman & Co. Ltd.
 Another important case dealing with a company as a separate entity from its
members is Farrar v. Farrar Ltd.
 The leading American case on the point is People’s Pleasure Park v. Rohleder,
where the question was whether a restrictive covenant that title to land should
never pass to a colored person operated to prevent a transfer to a corporation of
which all the members were Negroes. It was held that the corporation was
distinct from its members and that the transfer was valid.

II. CORPORATION SOLE

 Corporation sole is an incorporated series of successive persons. It implies two
persons to exist under the same name, the one, a human being and the other, the
corporation sole, which is the creation of the law and continues to exist though
the human beings changes.

 “The live official comes and goes”, said Salmond in a passage which has
become the classic description of the corporation sole, but this offspring of the
law remains the same forever.
 The most outstanding example of Corporation Sole is the Crown (in England).
Two persons are deemed to be occupying the throne of England – one the queen
in flesh and blood and the other is the Corporation sole which is the creature of
law. This Queen never dies though the Queen in flesh and blood may die.

 In India various offices like that of a Governor of the Reserve Bank of India,
the State Bank, The Post Master General, The General Manager of Railways,
the Registrar of the Supreme Court and High Court etc. which are created under
different statutes are some examples of Corporation Sole.

 In Govind Menon V Union of India, the Supreme Court pointed out the main
characteristics of corporation sole. The court observed that Corporation sole is
not endowed with a separate legal personality. It is composed of one person
only who is incorporated by law. The same person has a dual character, one as a
natural person and the other as Corporation sole, the later being created by
Statute.

 The idea of corporation sole originated according to Maitland with a piece of

land, known as the parson’s globe, which was vested in a parson in his official
capacity. Difficulties arose as to the conveyance (legal paper transferring
ownership of property) of the Seisin to a person for the benefit of church. The
Corporation sole was invented so that the Seisin could be vested in it. Today,
under English law, there are number of bodies which can be said to be examples
of Corporation sole. Noted them are a parson, a bishop, public trustee, the
postmaster General etc.

CROWN AS THE CORPORATION SOLE

 Section 40(1) of the Crown Proceedings Act 1947, sharply underlines the
distinction between sovereign as an individual and the corporation sole. The
Act does not apply to proceedings, by or against the Queen in her private
capacity. This invariably leads to the conclusion that the Crown is Corporation
sole meaning thereby the Queen who adorns the Crown, is different from the
one (i.e. the corporation sole) which is the actual owner of the throne-being the
creation of law.
 The proclamation says, “The king is dead, long live the King”. It thus refers
both to the individual who has died and to the Corporation sole which survives,
i.e. which never dies but lives forever. If this device of Corporation sole is not
accepted the following consequences would result on the death of a ruling
monarch:-
1. Pending actions in the Royal Court would lapse on the king’s death and would
have to be restarted when a new sovereign occupies the throne.
2. Parliament would stand dissolved and
3. Crown appointments would be automatically terminated.

POSITION IN INDIA
 Article 12 of the Constitution of India provides that the State includes the
Government and Parliament of India and the legislature of each state.
 What is the position of Indian State? Is it a juristic person?
 In Shiv Prashad V Punjab State, the Punjab High Court observed:
 The natural and obvious meaning of the expression is that person is a living
human being, a man, woman of child, an individual of the human race. In law
the word includes natural person and artificial persons like corporation and
joint stock companies, but it does not include a State or Government, for
although a state is a moral person, having an understanding and a will,
capable of possessing and acquiring rights and of directing and fulfilling
obligations, the state in its political organization is entirely different and
distinct from the inhabitants who may happen to reside there.

CORPORATION WHETHER A CITIZEN

 Citizenship as defined in Part II of the Constitution of India indicates only
natural persons and not juristic persons, like corporations.

1. In State Trading Corporation of India v Commercial Tax Officer, in this

case Supreme Court held that company or corporation is not citizen of India
and cannot, therefore claim such of the fundamental rights as have been
conferred upon citizens.

2. In Tata Engineering & Locomotive Co. V State of Bihar, the petition was
filed by the company and some shareholders also joined it. They argued
 that though the company was not a citizen but its shareholders were
citizens and if it was shown that all its shareholders were citizens the veil
of corporate personality might be lifted to protect their fundamental
rights. The court rejected this argument and held that, “If this plea is
upheld, it would really mean that what the corporations and companies
cannot achieve directly can be achieved by them indirectly by relying upon the
doctrine of lifting the corporate veil”.

Introduction
The term ‘person’ is derived from Latin word ‘persona’ which means a mask worn by
actors playing different roles in a drama. In modern days it has been used in a sense of a living
person capable of having rights and duties. Now it has been used in different senses in different
disciplines. In the philosophical and moral sense the term has been used to mean the rational
quality of human being. In law it has a wide meaning. It means not only human beings but also
associations as well. Law personifies some real thing and treats it as a legal person. This
personification both theoretically and practically clarifies thought and expression. There are
human beings who are not persons in legal sense such as outlaws and slaves (in early times). In
the same way there are legal persons who are not human beings such as corporations, companies,
trade unions; institutions like universities, hospitals are examples of artificial personality
recognized by law in the modern age. Hence, the person is an important category of concept in
legal theory, particularly business and corporate laws have extensively used the concept of
person for protection as well as imposing the liability.

The term ‘person’ and ‘personality’ has a historical evolution. Roman law, Greek law
and Hindu law, has used the concept too. In Roman law, the term had a specialized meaning, and
it was synonymous with ‘caput’ means status. Thus, a slave had an imperfect persona. In later
period it was denoting as a being or an entity capable of sustaining legal rights and duties. In
ancient Roman Society, there was no problem of personality as the ‘family’ was the basic unit of
the society and not the individual. The family consisted of a number of individuals, but all the
powers were concentrated with ‘pater familias’ means the head of the family. If a head of the
family dies, and there is an interval between his death and devolution of property on the heir who
accepted inheritance, the property will vest in a person during the interval. This was
called hereditas jacens which was developed by the Romans.[1] The hereditas jacens is
considered by some scholars as similar to legal personality. Hereditas jacens means the
inheritance during the interval between death of the ancestor and the acceptance of the
inheritance by the heir. Some scholars are not ready to agree with the views that it has some
connection with present doctrine of legal personality, even if it is there, it may be in a very
limited sense. There was a provision in Roman law that other institutions or group who had
certain rights and duties were capable to exercise their legal rights through a representative.
Under Greek law, an animal or trees were tried in court for harm or death done to a human being.
It can be said on the basis of this practice that these objects were subject to duties even though
they may not possesses rights. This is an element of the attribution of personality.
Under early English law, there are some incidences in it had found that an animal or tress or
inanimate objects had been tried in Court under law. The trees and animals were subject to duty
but not rights. After 1846, this system has modified and it was made clear that animals or tresses
are capable of possessing rights and duties; therefore, there is no question of personality. [2]
Definition of ‘Person’
The term ‘person’ is derived from the Latin term ‘Persona’ which means those who are
recognized by law as being capable of having legal rights and being bound by legal duties. It
means both- a human being, a body of persons or a corporation or other legal entity that is
recognized by law as the subject of rights and duties. [3]
Savingy has defined person as the subject or bearer of right. But Holland has criticised this
definition on the ground that persons are not subject to right alone but also duties. He says: the
right not only resides in, but is also available against persons. There are persons of incidence as
well as of inherence.[4]
Kelson rejected the definition of personality as an entity which has rights and duties. He has
also rejected the distinction between human beings as natural persons and juristic persons. He
says the totality of rights and duties is the personality; there is no entity distinct from them.
However, Kelson’s view has been criticised for the reason that in law natural person is different
from legal persons who are also capable of having rights and duties and constitute a distinct
entity.
Salmond’s definition seems to be more correct than the earlier definitions. In the words of
Salmond:
“So far as legal theory is concerned, a person is any being whom the law regards as
capable of rights and duties. Any being that is so capable is a person, whether a human being
or not, and no being that is not so capable is a person even though he be a man.”[5]

Salmond further explains that the extension of the conception of personality beyond the
class of human beings is one of the most noteworthy achievements of the legal imagination.
Persons can be classified into-
(a) Natural person, and
(b) Legal or artificial or juristic person.
There are some natural persons who do not enjoy the status of legal persons and vice versa.

Natural Person vis-a vis Legal Person

 Legal persons are those which are the creations of law e.g. the company, corporations,
trade unions, etc. Salmond says legal person is any subject matter other than human beings to
which the law attributes legal personality. Generally, legal personality is granted by law to all
human beings, legal personality being an artificial creation of the law may be conferred on
entities other than individual human beings. The law, in creating legal persons, always does so
by personifying some real thing. [6] Following are the differences between natural person and
legal person:
Natural Person
1. A natural person is a human being and is a real and living person.
2. He has characteristics of the power of thought speech and choice.
3. Unborn, dead man and lower animals are not considered as natural persons.
4. The layman does not recognize idiot, company, corporation, idol etc. as persons.
5. He is also a legal person and accordingly perform their functions
6. Natural person can live for a limited period. i.e. he cannot live more than 100 years.

Legal Person
1. Legal person is being, real or imaginary whom the law regards as capable of rights or duties.
2. Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.
3. In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as legal
persons.
4. The legal persons perform their functions through natural persons only.
5. There are different varieties of legal persons, viz. Corporations, Companies, Universities,
President, Societies, Municipalities, Gram panchayats, etc.
6. Legal person can live more than 100 years. Example: (a) the post of “American President” is a
corporation, which was created some three hundred years ago, and still it is continuing. (b) “East
India Company” was established in sixteenth century in London, and now still is in existence.

LAW OF STATUS
Law of status is the law concerning the natural, the domestic and the extra domestic
status of man in civilized society. The law of extra domestic status is the law that is concerned
with matters and relations apart from those concerning the family. [7] Thus this department of the
law of status deals with the status of persons such as lunatics, aliens, deceased persons, lower
animals etc.
These are persons who do not enjoy the status of legal personality but the society has
some duties towards them.
Legal Status of Unborn Person
 A child in mother’s womb is by legal fiction regarded as already born. If he is born alive,
he will have a legal status. Though law normally takes cognizance of living human beings yet the
law makes an exception in case of an infant in ventre sa mere.

Under English Law, a child in the womb of the mother is treated as in existence and
property can be vested in its name. (Re Wilmers Trusts Moore v. Wingfield, (1903) 1 Ch D 38)
Article 906 of the French Civil Code permits the transfer of property in favour of an unborn
person. But, according to Mohammedan Law a gift to a person not in existence (Abdul
Cadur v. Turner, (1884) 9 Bom. 158) is void. A child in the womb of the mother is considered
to be a person both under the law of crimes and law of torts.
Indian Position –
Under Section 13 of the Transfer of Property Act, 1882, property can be transferred for
the benefit of an unborn person by way of trust. Similarly Section 114 of the Indian
Succession Act, 1925 provides for the creation of prior interest before the unborn person
may be made the owner of property – corporeal or incorporeal, but no property will be deemed to
be vested in the unborn person unless and until he is born alive. In Hindu Law also a child in the
womb of the mother is deemed to be in existence for certain purposes. Under Mitakshara law,
such a child has interest in coparcenary property. ( Mulla, Hindu Law, 13th edition, p. 244)

Under section 315 of the Indian Penal Code, 1860 the infliction of pre natal
injury on a child, which is capable of being born alive and which prevents it from being so could
amount to an offence of child destruction. Section 416 of Criminal Procedure Code,
1973 provides that if a woman sentenced to death is found to be pregnant, the High Court shall
order the execution of the sentence to be postponed, and may if it thinks fit, commute the
sentence to imprisonment for life. It has been held that in a Canadian case, (Montreal
Tramways v. Leville, (1933) 4 DLR 33) that a child could succeed in tort after it was born on
account of a deformity which was held to have been caused by a negligent pre natal injury to
mother.

Though there is no Indian case on this point but it is expected that a liberal view would be
taken on this line and a child would be getting the right to sue. In an African case (Pinchin N.O.
v. Smtam Ins. Co. Ltd., (1963) 2 SA 254) it was held that a child can succeed in tort after it is
born on account of a deformity caused by pre injury to his mother.

In India as well in England, under the law of tort an infant cannot maintain an action for injuries
sustained while on ventre sa mere. However, in England damages can be recovered under
Fatal Accidents Act, 1846 for the benefit of a posthumous child. In short, it can be concluded
that an unborn person is endowed with legal personality for certain purposes.
Legal Status of Dead Man
Dead man is not a legal person. As soon as a man dies he ceases to have a legal
personality. Dead men do not remain as bearers of rights and duties it is said that they have laid
down their rights and duties with their death. Action personalis moritur cum persona-
action dies with the death of a man. With death personality comes to an end. A dead man ceases
to have any legal right or bound by any legal duty. Yet, law to some extent, recognises and takes
account of the desires or intentions of a deceased person. Law ensures a decent burial, it respects
the wishes of the deceased regarding the disposal of his property, protects his reputation and in
some cases continues pending action instituted by or against a person who is now deceased.

Indian Position –
As far as a dead man’s body is concerned criminal law secures a decent burial to all dead
men. Section 297 of Indian Penal Code, 1860 also provides punishment for committing
crime which amounts to indignity to any human corps. (Section 297 of IPC) The criminal law
provides that any imputation against a deceased person, if it harms the reputation of that person
if living and is intended to hurt the feeling of his family or other near relatives, shall be offence
of defamation under Sec. 499 of the Indian Penal Code.
The Supreme Court in the case of Ashray Adhikar Abhiyan v Union of India , AIR 2002
SC 554, has held that even a homeless person when found dead on the road, has a right of a
decent burial or cremation as per his religious faith.
In English Law ( R. v. Price, (1884) 12 QBD. It was held that every person dying in
England has a right to Christian burial.) as well as in Muslim Law the violation of a grave is a
criminal offence. As regards reputation of a dead man, it is to some extent protected by criminal
law. (Section 491 of IPC.) Under Roman law any insult to the body of the deceased at the
timing of funeral, gave the deceased’s heir a right to sue for the injury as it is treated as insult to
the heir. Under the law of France the relative of the defamed deceased can successfully sue for
damages, if they can prove that some injury it suited from the defamation. Thus, it is not the
rights and the hence the personality of the deceased that the law recognises and protects but it is
the right and interest of living descendants that it is protected.
So far trust is concerned English Law provides the rule that permanent trust for the
maintenance of a dead man’s tomb is illegal and void and property cannot be tied up for this
purpose. This rule has been laid down in the leading case of Williams v. Williams, (1882) 20 Ch
D 659, where it was said that a corpse is the property of no one. It cannot be disposed of by will
or any other instrument. It was further held in this case that even temporary trusts are neither
valid nor enforceable. Its fulfilment is lawful and not obligatory. It was held in Mathii Khan v.
Veda Leiwai, 34 Mad 12, that worship at the tomb of a person is charitable and religious
purposes amongst Muslims- hence trust is possible. In Saraswati v. Raja Gopal, (1954) SCR
277, it was held that worship at the Samadhi of a person, except in a community in which there is
a widespread practice of raising tombs and worshipping there at, is not a religious or charitable
purpose according to Hindu Law and would not constitute a valid trust or endowment. (Re
Vaughan (1886) 33 Ch D 187.)
Regarding the property of the dead man the law carries out the wishes of the deceased
example, a will made by him regarding the disposal of his property. This is done to protect the
interest of those who are living and who would get the benefit under the will. This is subject to
the rule against perpetuity as well as law of testamentary succession. Indian Transfer of
Property Act, Section 14 incorporates the rule against perpetuities, which forbids transfer of
property for an indefinite time thereby making it alienable. Section 14 of the TPA restrains the
power of creating future interests by providing in the rule against perpetuities that such interest
must arise within certain limits. The rule of perpetuity looks to the date at which the contingent
interest will vest, if it vests at all, and hold it to be void as “perpetuity if this date is too remote”.
Similarly, Section 1 and 4 of the Indian Succession Act, 1925 forbids the creation of a
will whereby vesting of property is postponed beyond the lifetime of one or more persons and
the minority period of the unborn person.
Legal Status of Lower Animals
Law does not recognise beasts or lower animals as persons because they are merely
things and have no natural or legal rights. Salmond regards them mere objects of legal rights and
duties but never subjects of them. Animals are not capable of having rights and duties and hence
they are not legal persons.

Ancient Law –
However, in ancient times animals were regarded as having legal rights and being bound
by legal duties. Under the ancient Jewish Code ‘if an ox gore (wound with a horn) a man or
woman resulting in his or her death, then the ox was to be stoned and its flesh was not to be
eaten. There are many examples in ancient Hebrew Codes where cock, bulls, dogs and even the
trunk of trees which had fallen on human beings and killed him were tried for homicide.’
(Keeton, Elementary Principles of Jurisprudence, p. 149.)

There are similar instances in India as well. In number of cases found that, animals were
sued in courts in ancient India. There is popular story about the Mughal Emperor Jehangir in
which the bullock was presented before the Emperor. However these instances are merely of
historical interest and have no relevance in modern law.

Modern Law –
Modern Law does not recognise animals as bearer of rights and duties. Law is made for
human beings and all things including animals are for men. No animal can be the owner of
property from a person to an animal. Animals are merely the object of transfer and are a kind of
property, which are owned and possessed by persons. Of course, for the wrongs done by animals
the master is held liable. (Leading English case is Baldwin v. Casella, 1872 LR 7 Ex 325 and
Indian case on this is Krishna Rao v. Marati, AIR 1937 Nag 17.) This duty or liability of the
master arises due to public policy and public expediency. The liability of the master is strict and
not a vicarious liability. The animal could be said to have a legal personality only if the liability
of the master is considered vicarious.
 In certain cases, the law assumes the liability of the master for an animal as direct while
in other cases, liability is not direct. Thus, for keeping animals that are not of dangerous nature
the master is not liable for the damage it may do, unless he knows that it was dangerous. The
knowledge of the defendant must be shown as to their propensity to do the act in question.
However, if the animal is of ferocious nature, the master is responsible for the wrong if he shows
negligence in handling it. The owner of animals of this class is also responsible for their
trespasses and consequent damage. If a man’s cattle, sheep or poultry, stray into his neighbour’s
land or garden, and do such damage as might ordinarily be expected to be done by things of that
sort, the owner is liable to his neighbour for the consequences. A charitable trust can be created
for the maintenance of stray cattle, broken horses and other animals. Such a trust is created with
a view to promote public welfare and advancement of religion. However, if the charitable trust is
created only for the benefit of a single horse or a dog, it cannot be regarded as public charitable
trust for instance in Re Dean Cooper Dean v. Stevens, (1889) 41 Ch 551, a test of charged his
property with the payment of annual sum of trustees for the maintenance of his horses and dogs.
The court held that it is not valid trust enforceable in any way on behalf of these animals. It was
observed that the trustee could/spend the money if they pleased in the manner desired by the
testator. But if they did not spend the money it would not be considered a breach of trust and in
such a situation the money so spent will be of the representatives of the testator.

Similarly, a bequest for the maintenance of the testator’s favourite black mare,
Pettingall v. Pettingall, (1842) 11 L J Ch. 176, a bequest of an annual sum for the maintenance
of testator’s horses and hounds for a period of 50 years if nay those animals should so long live a
trust for the benefit of a parrot during the life of two trustees and survivor of them have all been
held valid.

Legal Status of Idol:

It has been judicially held that idol is a juristic person and as such it can hold property. Its
position is, however, like that of a minor and the priest, i.e., Pujari acts as a guardian to look after
its interests. The Privy Council, in Pramatha Nath Mulkk Vs.Pradyumna Kumar Mulick, 1925
held that an idol is juristic person and its will as to its location must be duly respected. The court
directed that idol be represented by a disinterested next friend to be appointed by the Court to put
up its point of view.

Similar view was reiterated by the Supreme Court of India in Yogendra Nath Naskar Vs.
Commissioner of Income Tax, 1969 wherein it was held that an idol is a juristic person capable
of holding property and of being taxed through its sheba its who are entrusted with the
possession and management of its property. An idol can he treated as a unit of assessment for
assessing its liability under the Income Tax Act.

CORPORATE LEGAL PERSONALITY

Legal personality is a fictitious attribution of personality by law, a sort of personification
of law. Legal persons being artificial creations of law can be of as many kinds as the law devises.
Continental jurisprudence recognizes three kinds of legal persons, namely:
 (I) Groups or series of men, usually called corporations:
The first class of legal persons consists of corporations, namely those which are
constitutes by the personification of groups (e.g., corporation aggregate) or series of individuals
(e.g., corporation sole). In State Trading Corporation of India v. Commercial Tax Officer, AIR
1963 SC 1811, the Court observed that corporation are undoubtedly legal persons but is not a
citizen within the meaning of Article 19 of the Constitution and cannot ask for the enforcement
of fundamental rights granted to citizens under the said Article.
(ii) Institutions like hospitals, libraries etc.:
The second class is that in which corporations or object selected for personification not a
group of series of persons but an institution is. The law may, if it pleases, regard a church, a
hospital or a university or a library as a person. That is to say it may attribute personality not to
any group of persons connected with the institution, but to the institution itself. In the tradition
and practice of English Law, legal personality is not limited by any logical necessity or indeed
by any obvious requirement of expediency to the incorporated bodies of individual persons. In
India, institutions like university, (Bansaidliar v. University of Rajasthan, AIR 1963 Raj
172.), temple, (Baba Kishore Dev v. State of Orissa, AIR 1964 SC 1501), public authorities, etc.
are considered as legal persons. Under Indian law, trade unions and friendly societies are legal
entities. They own properties and suits can be brought in their names though not regarded as
corporations.

(iii) Funds or estates like the estates of deceased persons:

The third kind of legal person is that in which the corpus is some fund or estate devoted
to special uses, a charitable fund for example, or a trust estate, or the property or a dead man or
of a bankrupt.

Corporate Sole
Corporation sole is a legal entity consisting of a sole incorporated office, occupied by a
single man/women and it has legal continuity.
A corporation sole consists of one person only, and the successors of that person in some
particular station or office. The King of England is a corporation sole; so is a bishop; and in the
Church of England every parson and vicar is, in view of the law, a corporation sole.
To understand the concept of corporation sole one needs to deal with two yet similar
questions: First, it was necessary to discover what application the concept had, which involved
understanding why it had come into being in the first place; but Second, it was necessary to ask
what forms of law the use of this concept had excluded. Law, in ruling some things in, is always
ruling some things out (though it was by implication the English genius to stretch the terms of
this proposition as far as they would go). Even English law could not conjure up terms of art that
were in - finitely adaptable. That the corporation sole was a term of art contrived to meet a
particular practical problem rather than deduced from a set of general juristic precepts, could not
be doubted. Nor could it be doubted that the application of this contrivance was rather limited.
But what was surprising was how much, nonetheless, was ruled in, and how much ruled out.
The origins of the corporation sole Maitland traced to a particular era and a particular problem.
The era was the sixteenth century, and coincides with what Maitland calls ‘a disintegrating
process . . . within the ecclesiastical groups’, when enduring corporate entities (corporations
‘aggregate’, which were, notwithstanding the misleading terminology, more than the sum of their
parts) were fracturing under political, social and legal pressure. However, the particular problem
was not one of groups but of individuals; or rather, it was a problem of one individual, the parish
parson, and of one thing, the parish church. Was this thing, a church, plausibly either the subject
or the object of property rights? The second question – of objectivity – was the more pressing
one, as it concerned something that was unavoidable as a cause of legal dispute, namely ‘an
exploitable and enjoyable mass of wealth’.
But it could not be addressed without considering the other question, and the possibility
that the ownership of this wealth does not attach to any named individuals but to the church
itself. The law could probably have coped with this outcome, but the named individuals
involved, including not only the parson but also the patron who nominates him and the bishop
who appoints him, could not. It placed exploitation and enjoyment at too great a remove. Instead,
an idea that had been creeping towards the light during the fifteenth century was finally pressed
into service, and the parson was deemed the owner, not in his own right, but as a kind of
corporation, called a ‘corporation sole’.
What this meant, in practice, was that the parson could enjoy and exploit what wealth
there was but could not alienate it. But what it meant in theory was that the church belonged to
something that was both more than the parson but somewhat less than a true corporation. That it
was more than the parson was shown by the fact that full ownership, to do with as he pleased,
did not belong to any one parson at any given time; that it was less than a corporation was shown
by the fact that when the parson died, ownership did not reside in anybody or anything else, but
went into abeyance. Essentially, the corporation sole was a negative idea. It placed ultimate
ownership beyond anyone. It was a ‘subject less right, a fee simple in the clouds’. It was, in
short, an absurdity, which served the practical purpose of many absurdities by standing in for an
answer to a question for which no satisfactory answer was forthcoming.
The idea of the corporation sole gave legal fictions a bad name; the corporation sole was
a frivolous idea, which implied that the personification of things other than natural persons was
somehow a less than serious matter. It was not so much that absurdity bred absurdity, but that it
accustoms us to absurdity, and all that that entails. Finally, however, the idea of the corporation
sole was serious because it encouraged something less than seriousness about another office than
parson. Although the class of corporations sole was slow to spread, it was found serviceable by
lawyers in describing at least one other person, or type of person: the Crown. To think of the
Crown as a corporation sole, whose personality is neither equivalent to the actual person of the
king nor detachable from it, is ‘clumsy’. It is in some ways less clumsy than the use of the
concept in application to a parson. The central difficulty, that of ‘abeyance’ when one holder of
the office dies, is unlikely to arise in this case: when a parson dies there may be some delay
before another is appointed, but when a king dies there is considerable incentive to allow no
delay, whatever the legal niceties. Nor is it necessarily clumsier than other, more famous
doctrines: it is no more ridiculous to make two persons of one body than it is to make two bodies
of one person It makes a ‘mess’ of the idea of the civil service by allowing it to be confused with
‘personal’ service of the king; it cannot cope with the idea of a national debt ; it even introduces
confusion into the postal service (by encouraging the view that the Postmaster-General is
somehow freeholder of countless post offices). It also gets things out of proportion, for just as it
implies that a single man is owner of what rightly belongs to the state, so it also suggests that
affairs of state encompass personal pastimes.
The problem with absurd legal constructions is not simply that serious concerns may be
trivialised, but also that trivial matters may be taken too seriously, which is just as time-
consuming. ‘So long as the State is not seen to be a person [in its own right], we must either
make an unwarrantably free use of the King’s name, or we must be forever stopping holes
through which a criminal might glide.’
Therefore a corporation sole can be defined as a corporation sole consists of one person
and his or her successors in some particular office or station, who are incorporated by law in
order to give them certain legal capacities and advantages which they would not have in their
natural person.
The Crown first came to be identified as a corporation sole at a sinister time, during the
reign of Henry VIII. In most important respects, as touching on the fundamental questions of
politics, the British state had long been afforded its own identity as a corporation aggregate,
distinct from the persons of any individuals who might make it up at any given moment. The
British state had a secure national debt, which had been owed for some time by the British
‘Publick’, (Building Societies Act 1986, Schedule 2, para 3(4), Table, item 12) and the British
public had been relatively secure since the end of the seventeenth century in the rights that it had
taken from the Crown. The problems, such as they were, were problems of convenience and not
of freedom. But precisely because the idea of the Crown as a corporation sole remained tied up
in the domain of private law, it illustrated the gap that existed in England between legal and
political conceptions of the state. The fact that the Crown was still understood as a corporation
sole implied that there was some distinction to be drawn between matters of basic political
principle and mere questions of law. This was unsustainable. It was not simply that it was not
clear on what basis this distinction could conceivably rest – it was impossible, after all, to argue
that the corporation sole was useful in matters of law, since it had shown itself to be so singularly
useless. It was also far from clear where to draw the line Maitland devotes considerable
attention to the problems that the British Crown was experiencing at the turn of the twentieth
century in understanding its relationship with its own colonies. That they were its ‘own’, and had
begun their life as pieces of property, meant that there was a legal argument for seeing them still
as the property of the Crown, which was itself seen still as the corporate personality of Her
Majesty the Queen. This was convoluted, unworkable and anachronistic. It was also ironic. It
meant that in what was obviously a political relationship the supposedly dominant partner was
still conceived as an essentially private entity, and therefore restricted by the conventions of
private law; while the colony itself, which had begun life as a chartered corporation created by
the Crown, was able to use that identity as a corporation aggregate to generate a distinct identity
for itself as “one body corporate and politic in fact and name”.

Corporate Aggregate
A corporate aggregate is an incorporated group of co-existing persons. Examples: all
private limited companies, all public limited companies, multi-national corporations, public
undertaking corporations.“Corporate aggregate” is a fictitious body and created by the policy of
men. They may also be called as “body’s Politique”. A corporate aggregate has several members
at a time. These are the private offices. The primary object of corporate aggregate is to do
business. It is lesser permanent than corporate sole. Similarly, corporate aggregate also shall
have its own properties, debts, with which the share holders are not concerned. The share holders
are concerned corporation / company subject to the extent of their share amount, not exceeding
that. They have their own properties. The debts of the company are not having any connection
with their own properties. The debts, profits, losses are related to the share amount only.
So the perfect definition of corporate aggregate would be -
Corporation aggregate consist of two or more persons united in a society, which is
preserved by a succession of members, either forever or till the corporation is dissolved by the
power that formed it, by the death of all its members, by surrender of its charter or franchises, or
by forfeiture. Such corporations are the mayor and aldermen of cities, the head and fellows of a
college, the dean and chapter of a cathedral church, the stockholders of a bank or insurance
company, etc.
A corporation aggregate, or body politic, or body incorporate, is a collection of many;
individuals united in one body, under a special denomination, having perpetual succession under
an artificial form, and vested by the policy of the law, with a capacity of acting in several
respects as an individual, particularly of taking and granting property, contracting obligations,
and of suing and being sued; of enjoying privileges and immunities in common, and of exercising
a variety of political rights, more or less extensive, according to the design of its institution, or
the powers conferred upon it, either at the time of its creation, or at any subsequent period of its
existence.
So basically a corporate aggregate consists of several persons, who are' united in one
society, which is continued by a succession of members. Of this kind are the mayor or
commonalty of a city; the heads and fellows of a college; the members of trading companies, and
the like. Going by the above description of corporations aggregate, it would logically follow that
every form of concerted activity of willing individuals aimed at a particular end, would lead to
their acts coming to known through the glass of incorporation which realises their combined
operations as one single act, performed by a single personality. However, it is in this regard that
the real limits of artificial personality are discernible. The law deems only certain forms of
concerted action as eligible for recognition through incorporation; thus while joint stock
companies are recognised as incorporated bodies, associations such as partnerships, trade unions
and other organizations are not recognised as incorporated bodies for various reasons. These
groups have come to assume the term ‘unincorporated associations'.

Theories of Corporate Personality

The Fiction theory:
This theory of corporation is said to be promulgated by Pope Innocent IV (1243-1254). This
theory is supported by many famous jurists, particularly, Von Savigny, Coke, Blackstone and
Salmond. According to this theory, the legal personality of entities other than human beings is
the result of a fiction. The famous case of Salomon v A Salomon Co Ltd is a proof of the
English court adoption of the fiction theory. In this case, Lord Halsbury stated that the important
question to decide was whether in truth an artificial creation of the legislature had been validly
constituted. It was held that as the company had fulfilled requirements of the Companies Act, the
company becomes a person at law, independent and distinct from its members. (First National
Bank v Bellotti (1978) 435 US 765, 55 L Ed 2d 707, 778 (US) per Powell J)
The Concession theory:
Under this theory the state is considered to be in the same level as the human being and
as such, it can bestow on or withdraw legal personality from other groups and associations within
its jurisdictions as an attribute of its sovereignty. Hence, a juristic person is merely a concession
or creation of the state. Concession theory is often regarded as the offspring of the fiction theory
as it has similar assertion that the corporations within the state have no legal personality except
as it is conceded by the state. Exponents of the fiction theory, for example, Savigny, Dicey and
Salmond are found to support this theory. Nonetheless, it is obvious that while the fiction theory
is ultimately a philosophical theory that a corporation is merely a name and a thing of the
intellect, the concession theory is indifferent as regards to the question of the reality of a
corporation in that it focus on the sources of which the legal power is derived.
The Purpose theory:
The advocates who are associated with this theory are E.I Bekker, Aloys Brinz and
Demilius. Similar to the fiction and concession theories, it declares that only human beings can
be a person and have rights. Under this theory, juristic person is no person at all but merely as a
“subject less” property destined for a particular purpose and that there is ownership but no
owner. The juristic person is not constructed round a group of person but based on the object and
purpose. The property of the juristic person does not belong to anybody but it may be dedicated
and legally bound by certain objects.
The Symbolist theory:
This theory is also known as the “bracket” theory. It was set up by Ihering and
later developed particularly by Marquis de Vareilles-Sommiéres. Basically, this theory is
similar to the fiction theory in that it recognizes that only human beings have interests and rights
of a legal person. According to Ihering, the conception of corporate personality is indispensable
and merely an economic device by which simplify the task of coordinating legal relations.
Hence, when it is necessary, it is emphasized that the law should look behind the entity to
discover the real state of affairs. This is clearly in line with the principle of lifting of the
corporate veil.
The Realist theory:
This theory was founded by German jurist, Johannes Althusius has been most
prominently advocated by Otto von Gierke. According to this theory, a legal person is a real
personality in an extra juridical and pre-juridical sense of the word. It also assumes that the
subjects of rights need not belong merely to human beings but to every being which possesses a
will and life of its own. As such, being a juristic person and as ‘alive' as the human being, a
corporation is also subjected to rights. Under the realist theory, a corporation exists as an
objectively real entity and the law merely recognizes and gives effect to its existence. The realist
jurist also contended that the law has no power to create an entity but merely having the right to
recognize or not to recognize an entity. A corporation from the realist perspective is a social
organism while a human is regarded as a physical organism. A corporation from the realist
perspective is a social organism while a human is regarded as a physical organism. (Woytash, J.
"We Must Stop Viewing Corporations as People" (1978) 64 ABAJ 814.)
 Lifting or Piercing the Corporate Veil
A corporation is cloth with a distinct personality by fiction of law, yet in reality it is an
association of persons who are in fact, in a way, the beneficial owners of the property of the body
corporate. A company being an artificial person, cannot act on its own, it can act only through
natural persons.
Where the legal entity of the company is being used for fraudulent and dishonest purpose,
the individuals concerned will not be allowed to take the shelter behind the corporate personality.
The court in such cases shall break through the corporate shell and apply the principle of what is
known as “lifting or piercing the corporate veil”. The corporate veil of a company may be lifted
to ascertain the true character and economic realities behind the legal personality of the
company. Undoubtedly, the theory of corporate entity of a company is still the basic principle on
which the whole law of corporations is based. But the separate personality of the company, being
a statutory privilege, it must always be used for legitimate business purposes only.
In New Horizons Ltd. v. Union of India and others, (1995) 1 SCC 478, the appellant
company when seen through the veil covering the face of New Horizons Ltd. was found to be a
joint venture created as a result of reorganization in 1992. Sixty per cent of its share capital was
owned by an Indian group of companies and forty per cent share capital was owned by a
Singapore based foreign company. The Government had invited tenders for distribution of State
largesse. The appellant's tender was not considered on the ground that the experience of its
constituents was not the same as that of the appellant and because of inadequate experience, the
respondent's tender was accepted as they had long experience and had also offered a much lower
amount of royalty. The appellants pleaded the experience of constituents of the joint venture
company should be treated as its own experience and corporate veil should be seen through for
this purpose. Allowing the appeal, the Supreme Court ruled that the action of the State
Government in determining the eligibility of tender’s been not in consonance with the standards
or norms and was arbitrary and irrational. The Court further observed that in case of a joint
venture corporation, the Court can see through the corporate veil to ascertain the true nature of a
company. The doctrine of lifting the corporate veil is invoked when the corporate personality is
found to be opposed to justice, convenience or interest of revenue.
The principle of 'lifting the corporate veil' has found statutory recognition in certain
provisions like Sections 45, 147, 212, 247 and 542 of the Companies Act. Corporate veil is said
to be lifted when the court ignores the company and concerns itself directly with the members or
managers.
The Supreme Court in Subhra Mukherjee & Another v. M/s. Bharat Coking Coal Ltd.
(BCCL) & others, AIR 2000 SC 1203, has observed that the Court will be justified in piercing
the veil of incorporation in order to ascertain the true nature of the transaction as to who were the
real parties to the sale and whether it was between husbands and wives behind the facade of
separate entity of the company.
In P.N.B. Finance Ltd. v. Shital Prasad Jain, (1983)53Comp. Cas.66, the court held that "the
doctrine of piercing the corporate veil may be invoked whenever necessary by the court in the
interest of justice, to prevent the corporate entity from being used as an instrument of fraud, and
the fundamental principle of corporate personality itself may be disregarded having regard to the
exigencies of the situation and for the ends of justice.
The doctrine of lifting the corporate veil can also be used to prevent abuse of process of
Court. Thus in Bijay Kumar Agarwal & others v. Ratanlal Bagaria & others, AIR 1999 Cal.
106, (107), the Court observed that although broadly speaking the principle of lifting the
corporate veil will be available in the statute like Companies Act, and other financial and taxing
statutes etc. but admittedly one cannot rule out the applicability of the principle elsewhere if the
situations are falling under the following categories : (a) depend upon the relevant statutory or
other provisions; (b) the object sought to be achieved; (c) the impugned conduct; (d) the
involvement of the element of public interest; (e) the effect on parties who may be affected. It,
therefore, logically follows that the doctrine of lifting the corporate veil or principle analogous
thereto cannot be ruled out from being used as a tool of judiciary in adjudicating over the dispute
between two parties. Thus the "Lifting of corporate veil' or principle analogous thereto cannot be
monopoly of any particular statute. It can well be used by the judiciary or the Court to prevent
the abuse of process of Court of Law.

LEGAL PERSONALITY IN INDIA

Karta
The position of the Karta in a Hindu coparcenary is an example of corporate personality. In
coparcenary system although each member of the joint Hindu Family has some rights and duties
and even though it is a single familial unit, a Joint Hindu Family does not have a separate legal
identity and is not a juristic person. It is not capable of holding property and the law does not
attribute any personality to a Joint Hindu Family. The Karta is overall head of the joint family
who manages the entire family property. He has a right to alienate the property and other
members of the family are under his control. He can sue and be sued on the behalf of the joint
family. In juristic terms, he is a corporation sole having a double capacity, i.e., as a natural
person he is the eldest member of the family and as a legal person he is in the capacity of the
Karta of the Joint Family.

Hindu Idols
According to the long established theory which was founded upon the religious customs
of the Hindus, a Hindu idol is a ‘juristic entity’ having a ‘juridical status’ and it has the power to
sue and being sued. But juridical person in the idol is not the material image but the image
develops itself into a legal person when it is consecrated by the Pran Pratistha
ceremony. According to Hindu law and various decisions of the courts, the position of idol is that
of a minor and a manager is appointed to act on idol’s behalf. Like a minor, an idol cannot
express itself and like a guardian, manager has some limitations under which he has to act and
perform its duties. According to this rule, Shri Guru Granth Sahib is also a juristic person. But
other religious texts such as Gita, Quran, Bible are not considered to be juristic persons.

The Union of India and the State Governments

The Union of India and the States have also been recognized as corporate entities under
Article 300 of the Constitution of India. Article 300 relating to Suits and proceedings is
as follows:
(1) The Governor of India may sue or be sued by the name of the Union and the Government of a
State may sue or be sued by the name of the State and may, subject to any provisions which may
 be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers
conferred by this Constitution, sue or be sued in relation to their respective affairs in the like
cases as the Dominion of India and the corresponding Provinces or the corresponding Indian
States might have sued or been sued if this Constitution had not been enacted
(2) If at the commencement of this Constitution
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of
India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) Any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the Province or the Indian State in
those proceedings. (Article 300 of the Constitution of India.)
The President of India as also the Governor of the State is a corporation sole like British
Crown. The Ministers of Union or State Government are not legal or constitutional entity and
therefore, they are not corporation sole. The reason being that they are appointed by the
President or the Governors and are ‘officers’ within the meaning of Articles 53 and 154 of the
Constitution. Article 53(1) of the Indian Constitution say that the executive power of the Union
shall be vested in the President and shall be exercised by him either directly or through officers
subordinates to him in accordance with the Constitution. Similarly, Article 154(1) of the
Constitution say that the executive power of the State shall be vested in the Governor and shall
be exercised by him either directly or through officers subordinates to him in accordance with
the Constitution.

Thus, they are not personally liable for their acts or omissions nor are they directly liable
in a Court of law for their official acts. It is the State whether the Centre or the federated unit
which is liable for the tort or the breach of contract committed by a Minister in his official
capacity.
Partnership Firm and Company
Partnership firm is not a legal person in the eye of law. There is no legal entity, standing
over against the partners. The property and debts of the firm are nothing else than those of the
partners. It can neither sue nor be sued in its own name. The member partners cannot contract
with their partnership firm because a man cannot contract with himself.
Unlike a partnership firm which has no existence apart from its members, incorporated
company has a distinct legal or juristic existence independent of its members. Under the law, a
corporation or a company is a distinct entity (legal persona) existing independent of its members.
An incorporated company exists as a complete being by virtue of its legal personality and is
often described as an artificial person in contrast with a human being who is a natural person. A
company being a legal entity by itself, is separate and distinct from its promoters, shareholders,
directors, officers or employees and as such, it is capable of enjoying rights and being subjects to
duties which are not the same as those enjoyed or borne by its members. It may sue or be sued in
its own name and may enter into contracts with third parties independently and the members
themselves can enter into the contract with the company.

Other Legal Personalities

(1) RBI: The Reserve Bank of India has a corporate existence because it is an incorporated body
having an independent existence.
(2) UPSC: Union Public Service Commission is not recognized as a legal person as it cannot hold
property in their own names and can neither sue nor be sued in a court of law.

(3) A Fund dedicated for a Religious Purpose: it was also of the nature of a legal person. It had
certain rights and received certain protection from law, such as the property dedicated to a math.

(4) Registered Societies: Societies registered under Societies Registration Act, 1860 are also held
to be legal persons.

(5) Trade Union: Registered trade unions are considered as juristic persons.

(6) Institutions like Church, University, and Library etc.: these are considered as juristic persons.

(7) Under the Indian law, Corporation Aggregate are all those bodies or associations which are
incorporated under a statute of the Parliament or State Legislature. In this category comes all
trading and non-trading associations which are incorporated under the relevant like the State
Trading Corporation, Municipal Corporation, Roadways Corporation, the Public Companies,
State Bank of India, the Life Insurance Corporation, the universities, Panchayats, Corporative
Societies.

Limitations to Legal Personality

Since the Industrial Revolution, when corporations rose to power, the limitations of
a legal corporate personality have been an issue of constant debate. While the granting of
personhood can help make corporations legally responsible for their actions, it also opens the
door to many more intricate questions. For example, if a corporation has a personality separate
from its shareholders or owners, some argue that it must also have individual rights, such as the
right to vote. If granted the right to vote, however, then shareholders will in effect have the right
to vote twice: once as private individuals, and once in the personality of the corporation. As this
conflict with most voting systems, it remains a controversial issue throughout legal circles.
There are limitations to the legal recognition of legal persons. Legal entities cannot marry, they
usually cannot vote or hold public office, and in most jurisdictions there are certain positions
which they cannot occupy. (These restrictions vary from country to country. Some countries do
not permit a corporate entity to be a director or a liquidator while others do.)
The extent to which a legal entity can commit a crime varies from country to country.
Certain countries prohibit a legal entity from holding human rights; other countries permit
artificial persons to enjoy certain protections from the state that are traditionally described as
human rights.
Special rules apply to legal persons in relation to the law of defamation. Defamation is
the area of law in which a person's reputation has been unlawfully damaged. This is considered
an ill in itself in regard to natural person, but a legal person is required to show actual or likely
monetary loss before a suit for defamation will succeed.
In 2010, the United States Supreme Court rendered a decision that many legal scholars
describe as a victory for corporation rights. The decision, Citizens United v. Federal Election
Committee expanded the free speech rights of corporations by holding that it is unconstitutional
to prohibit legal persons from engaging in election expenditures and electioneering. While critics
see this ruling as tantamount to allowing corporate-sponsored candidates in the future,
proponents argue that it is unfair to grant legal personality that grants equal responsibilities but
not equal rights.
Though a company is a legal person, it is not a citizen under the constitutional law of
India or the Citizenship Act, 1955. The reason as to why a company cannot be treated as a
citizen is that citizenship is available to individuals or natural persons only and not to juristic
persons. The question whether a corporation is a citizen was decided by the Supreme Court
in State Trading Corporation of India v. Commercial Tax Officer, AIR 1963 SC 1811. Since a
company is not treated as a citizen, it cannot claim protection of such fundamental rights as are
expressly guaranteed to citizens, but it can certainly claim the protection of such fundamental
rights as are guaranteed to all persons whether citizens or not. In Tata Engineering Company v.
State of Bihar, AIR 1965 SC 40, it was held that since the legal personality of a company is
altogether different from that of its members and shareholders, it cannot claim protection of
fundamental rights although all its members are Indian citizens. Though a company is not a
citizen, it does have a nationality, domicile and residence. In case of residence of a company, it
has been held that for the purposes of income tax law, a company resides where its real business
is carried on and the real business of a company shall be deemed to be carried on where its
Central management and control is actually located.

Conclusion
The foregoing analysis makes it abundantly clear that incorporation had great importance
because it attributes legal personality to non living entities such as companies, institutions etc.
which help in determining their rights and duties. Clothed with legal personality, these non living
personalities can own, use and dispose of property in their own names. Unincorporated
institutions are denied this advantage because their existence is not different from the members.
Kelsen through his analytical approach to legal personality has concluded that there is no
divergence between natural persons and legal persons for the purposes of law. In law personality
implies conferment of rights and duties. Therefore, for the convenient attribution of rights and
duties, the conception of juristic personality should be used in its procedural form.

2. LEGAL RIGHTS AND DUTIES

CONCEPT OF RIGHTS
Law is a set of rules to regulate human conduct. Human conduct is regulated by
conferring rights and imposing duties. This regulation takes place by enforcing legal machinery.
As far as concept of rights is concerned, it evolved in classical era. Ancient Indian society was
duty based society. Duty based towards God, duty towards parents.
But, today concept of right has become quite important. According to common men, rights mean
anything which is permitted. In ordinary parlance, right is standard of permitted behavior in a
certain sphere and anything against that would be wrong. Example: Moral rights, rights
according to religion. As far as legal rights are concerned it is the standard of permitted behavior
according to law. The term „wrong and „duty‟ are closely connected to rights; so it is important
to discuss them before discussing legal rights.

WRONG
According to Pollock, “Wrong is in morals the contrary of rights”.
According to Salmond, A wrong is simply a wrong act an act contrary to the rules of right and
justice.

Wrongs is of two types-

(a). Moral wrong
(b). Legal wrong.

Moral Wrong: - Right action is that which moral rules prescribe or commend wrong
action is that which they forbid. Any act which is contrary to morality or natural justice is moral
wrong.
Legal wrong:-Any act which is contrary to law is the legal wrong. There is a legal wrong
done whenever a legal duty is broken. Sphere of legal wrong changes with change in time.

Legal wrong which is a moral wrong also:

There are many legal wrongs which are morally also wrong. For example: Food
adulteration act, prevention of corruption act, foreign exchange act, prevention of atrocities
against Schedule caste and schedule tribes. It is true adulteration of food is a statutory.

Legal wrongs which is not a moral wrong:

There are many legal wrongs which are legally wrong but not morally. In case of strict liability,
Master has adulterated the goods and servant is asked to sell it. Servant is not aware about this
adulteration. He is convicted and punished. It is true; he has committed legal wrong but not the
moral wrong. Morally, it speaks; a person should not be punished without intention or
knowledge.
Legal rights are, clearly, rights which exist under the rules of legal systems or by virtue of
decisions of suitably authoritative bodies within them.
According to positivists, legal rights are essentially those interests which have been legally
recognized and protected. John Austin made a distinction between legal rights and other types of
rights such as Natural rights or Moral rights. By legal rights, he meant rights which are
creatures of law, strictly or simply so called. He said that other kind of rights are not armed with
legal sanction and cannot be enforced judicially.

DUTIES
According to Salmond, “A duty is an obligatory act”. This is to say, it is an act
opposite of which would be a wrong. The duties and the wrongs are not strictly identical. Duties
and wrongs are correlatives. The commission of wrong is the breach of duty and performance of
a duty is the avoidance of wrong.
Yet not all the acts, which a man ought to do, constitute duties. When the law recognizes
an act as a duty, it commonly enforces the performance of it, or punishes the disregard of it, or
punishes the disregard of it. But this sanction of legal force is in exceptional cases absent. A duty
is legal because it is legally recognized, not necessarily because is legally enforced or sanctioned.
There are legal duties of imperfect obligation, as they are called, which will be considered by us
at a later stage of inquiry.
Duty in the strict sense: An act which one ought to be done in respect of the other person
and correspondingly other person has a right against former one.

Duty can be divided into the following classes:-

(i) Legal and moral duty.
(ii) Positive and negative duty.
(iii) Primary and secondary duty
(iv) Absolute and relative duty.
(I) Moral Duty: - An act which ought to be done according to the dictates of morality. It
can also be defined as an act the opposite of which is a moral or natural wrong.
Example:-If a person is in problem at the time of swimming then the person stands
nearby, has a moral duty to rescue him if he knows swimming.
(II) Legal Duty:-It is an act recognized as a duty by law and treated as such for the
administration of justice. A legal duty is an act and the opposite of which is a legal wrong.
(i) Positive Duty and Negative duty: - When the law obliges us to do an act, the
duty is called positive duty. And when the law obliges us to refrain from doing an
act, the duty is called negative duty
(ii) Primary and Secondary Duties: A primary duty which is exists per se and is
independent of any duty, which the duty which has no independent existence, but
exists only for the enforcement of other duties.
Salmond also believed that no right can exist without a corresponding duty.
Every right or duty involves a bond of legal obligation by which two or more persons are bound
together. Thus, there can be no duty unless there is someone to whom it is due; there can be no
right unless is someone from whom it is claimed; and there can be no wrong unless there is
someone who is wronged, that is to say, someone whose right has been violated.
This is also called as vinculum juris which means “a bond of the law”. It is a tie that
legally binds one person to another.

On the other hand, Austin said that Duties can be of two types:

Absolute and Relative Duties – Absolute duties owns only by the State, which
generally called the crime and remedy of it is punishment. Relative duties are owns by any
person other than the one who is imposing them, the breach of it is called the civil injuries.
This is responsible by compensation - (Hibbert).
Austin conceives this distinction to be the essence of a right that it should be vested in some
determinate person and be enforceable by some form of legal process instituted by him. Austin
thus starts from the assumption that a right cannot vest in an indeterminate, or a vague entity like
the society or the people. The second assumption with which Austin starts is that sovereign
creates rights and can impose or change these rights at its will. Consequently, the sovereign
cannot be the holder of such rights.

Austin says – Relative duties which have corresponding rights.

Austin defined 4 kinds of duties-

1. Self regarding duty- not to commit suicide.

2. Public duty – not to commit nuisance.
3. Duty towards who are not human beings, duty towards God or animal etc.
4. Sovereign – Duty towards sovereign person.

Salmond – Reject the concept of Absolute duty, he said there can be no duty without the
right.

Definitions of Right Basing on Formal Elements

(Will Theory):
Austin:
According to Austin, right is “faculty which resides in a determinate party or parties by
virtue of a given law and which avails against a party or parties (or answer to a duty lying on
party or parties) other than the party or parties in whom it resides.” According to him, a person
can be said to have a right only when another or others are bound or obliged by law to do
something or forbear in regard to him. It means that a right has always a corresponding duty.
This definition is not quite satisfactory as every right implies a corresponding duty, but every
duty does not imply a corresponding right.

Holland:
Holland defines legal right as the “capacity residing in one man of controlling, with the
assent and assistance of the state the action of others.” He followed the definition given by
Austin. The only thing is in place of “faculty” he used the term “capacity”. This definition
involves the following results.

Gray:
Gray defines a legal right as “that power which a man has to make a person or persons
do or refrain from doing a certain act or certain acts, so far as the power arises from society
imposing a legal duty upon a person or persons”. He points out that “the right is not the interest
itself; it is the means by which the enjoyment of the interest is secured. If it is my interest to
receive a watch from X and if by the law X is bound to give it to me, I have a legally protected
interest and I have a legal right. The legal right, however, is not the giving of the watch. It
consists in my power to get the watch from ‘X’.

Definition of Right basing on Material Element

(Interest Theory):
The above definitions of Austin, Holland, Gray etc. stressed the ‘formal element’ like
capacity, interest etc. Another group of writers defines right in terms of ‘material element’
Ihering and Salmond belong to this class of writers.

Ihering:
Ihering defines rights as “legally protected interests”. The protection of human interests
is the chief purpose of social organization. The law, however, does not protect all such interest.
The interests of men conflict with one another and law, being the rule of justice, appraises such
interests and selects only some for protection. He regards as legal rights such of these interests as
have obtained legal protection.

Salmond:
He says “A right is an interest recognized and protected by rules of right that is by legal rules.
It is an interest respect for which is a duty, and disregard of which is a wrong.”

Reconciliation between the will and Interest theory:

Dr. Allen tries to bring about such reconciliation. According to him, the essence of a
legal right seems to be, not legally guaranteed power by itself nor legally protected interest by
itself, but the legally guaranteed power to realize an interest. Thus, we can conclude, right is the
exercise of will power directed towards the enforcement of interest or protection and recognition
of interest.

CHARACTERISTICS (OR ELEMENTS OR INGREDIENTS) OF LEGAL

RIGHTS

According to John Salmond, Legal rights involve five essential elements:-

(1) The person of Inherence - Right is vested in a person who may be the owner of the
right, the subject of it, the person entitled, or the person of inheritance.
(2) The person of Incidence - The right avail against a person, he is a person bound by
the duty and so may be describe the Subject of duty.

(3) Content of the Right - Act or omission which is obligatory on the person bound in
the favor of the person entitle.

(4) Subject matter of right – It is something which act or omission is relate, it may be
the object.

(5) Title of Right - every legal right has a title that is certain fact over event.

Illustration –
A testator leaves a gold ring to a legatee. In this case

The legatee is the inherence or the subject owner of the right.

The gold ring is the object/ subject matter of the right.

And the delivery of the ring is the content of the right.

The executer is the person of Incidence.

The bequeathing the ring is the title of the right.

Illustration:-

If ‘X’ sells a piece of land to Y by sale deed than Y becomes the owner of the property. Y has all
the rights over that property. Y is the person of inheritance. Thus, Y is the subject of the right.
Now, X and all other persons have a duty not to interfere with the possession or ownership or
any other rights of ‘Y’. Thus, the object of right or subject of duty is in rem. ‘X’ is obliged to
give possession and ownership of the property to ‘Y’ after the sale and ‘X’ is obliged not to
interfere with Y’s possession. Thus, possession, ownership, non -interference are the contents of
the right. Piece of land is the subject-matter of the rights. Every right is created by certain acts or
omission. In this case, it is done by deed of conveyance, so, it is the title of the right.

Some jurists hold that a right may not necessarily have a correlative duty. They say that
legal rights are legal concepts and these legal concepts have their correlatives which may not
necessarily be a duty.

Roscoe Pound also gave an analysis of such legal conceptions. He believed

that legal rights are essentially interests recognized and administered by law and belong to the
‘science of law’ instead of ‘law’. He proposed that such Rights are conceptions by which
interests are given form in order to secure a legal order.

Hohfeld’s System of Fundamental Legal Concepts or Jural

Relations:
1 2 3 4
Right Privilege Power Immunity
Jural Opposites – – – –
No Right Duty Disability Liability
Jural Right Privilege Power Immunity
Correlatives – – – –
Duty No Right Liability Disability

Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in
another and liability is the presence of power in another.

Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in
oneself and disability is the absence of power in oneself.

Conclusion derived from Hohfeld’s System

a. As a person’s right is an expression of a wish that the other person against whom the right or
claim is expressed has a duty to obey his right or claim.

b. A person’s freedom is an expression of a right that he may do something against other person
to change his legal position.

c. A person’s power is an expression of a right that he can alter other person’s legal position.

d. A person’s disability is an expression of a wish that another person must not alter the person’s
legal position.

Right in a wider sense

Salmond on Rights and Duties:
Salmond said that a perfect right is one which corresponds to a perfect duty and a perfect
duty is one which is not merely recognized by law but also enforced by law. In a fully developed
legal system, there are rights and duties which though recognized by law are not perfect in
nature. The rights and duties are important but no action is taken for enforcing these rights and
duties. The rights form a good ground for defence but duties do not form a good ground for
action. However, in some cases, an imperfect right is sufficient to enforce equity.
Salmond suggested-

Right – Other person ought to do in my behalf.

Liberty – I may do without the interference of law.

Power – I can do effectively against other.

Immunity – Other cannot do effectively against me.

Salmond gave following classifications of rights.

1. Positive and Negative Rights

2. Real and Personal Rights

3. Right in rem and Right in personam

4. Proprietary and Personal Rights

5. Inheritable and Uninheritable Rights

Salmond’s Classification of Positive and Negative Rights

Positive Rights Negative Rights

1 A positive right corresponds to a Negative rights have negative duties
corresponding duty and entitles its corresponding to them and enjoyment
owners to have something done for is complete unless interference takes
him without the performance of which place. Therefore, majority of negative
his enjoyment of the right is imperfect. rights are against the entire world.
2 In the case of positive rights, the Whereas, in case of negative rights,
person subject to the duty is bound to others are restrained to do something.
do something.
3 The satisfaction of a positive right Whereas in case of a negative right,
results in the betterment of the position
the position of the owner is maintained
of the owner. as it is.
4 In case of positive rights, the relation
Whereas in case of negative rights, the
between subject and object is mediate relation is immediate, there is no
and object is attained with the help of
necessity of outside help. All that is
others. required is that others should refrain
from interfering case of negative
rights.
5 In case of positive rights, a duty is In case of negative rights, the duty is
 imposed on one or few individuals. imposed on a large number of persons.

Salmond’s Classification of Real and Personal Rights

R Real Rights P Personal Rights personal

RRReal Rights
111 A real right corresponds to a duty
imposed upon persons in general.
22 A real right is available against the
whole world.
33 All real rights are negative rights.
Therefore, a real right is nothing
more than a right to be left alone by
others. It is merely a right to their
passive non-interference.
4 In real right, the relation is to a thing.
Real rights are derived from some
special relation to the object.
54 Real rights are right in rem.
Rights
A personal right corresponds to a duty
imposed upon determinate individuals.
A personal right is available only
against a particular person.
Most personal rights are positive rights
although in a few exceptional cases they
are negative.
In personal right, it is the relation to
other persons who owe the duties which
is important. Personal rights are derived
from special relation to the individual or
individuals under the duty.
Personal rights are right in personam.

Salmond’s Classification of Right in rem and Right in personam

Right in rem Right in personam

1 It is derived from the Roman It is derived from the Roman
term ‘actio in rem’. An action in term ‘action in personam’. An action
rem was an action for the recovery of in personam was one for the
dominium. enforcement of obligato i.e. obligation.
2 The right protected by an action in A right protected by action in
rem came to be called jus in rem. personam came to be called as jus in
personam.
3 Jus in rem means a right against or in Jus in personam means a right against
respect of a thing. or in respect of a person.
4 A right in rem is available against the A right in personam is available
whole world. against a particular individual only.

Salmond’s Classification of Proprietary and Personal Rights

Proprietary Rights Personal Rights

1 Proprietary rights means a person’s Personal rights are rights arising out of
right in relation to his own property. any contractual obligation or rights
Proprietary rights have some economic that relate to status.
or monetary value.
 2 Proprietary rights are valuable. Personal rights are not valuable.
3 Proprietary rights are not residual in Personal rights are the residuary rights
character. which remain after proprietary rights
have been subtracted.
4 Proprietary rights are transferable. Personal rights are not transferable.
5 Proprietary rights are the elements of Personal rights are merely elements of
wealth for man. his well-being.
6 Proprietary rights possess not merely Personal rights possess merely judicial
judicial but also economic importance. importance.

Salmond’s Classification of Inheritable and Uninheritable Rights

Inheritable Rights Uninheritable Rights

A right is inheritable if it survives the A right is uninheritable if it dies with the
owner. owner.

RELATION BETWEEN RIGHTS & DUTIES:-

It is debatable question whether rights & Duties are necessarily correlative. According to
one view, every right has a corresponding duly. Therefore, there can be no duty unless there is
someone to whom it is due. There can be no right without a corresponding right, just as there
cannot be a husband without a wife, or a father without child. Every Duty is a duty towards some
person or persons in whom a corresponding right is vested. Likewise, every right is a right
against some person or persons upon who a correlative duty is imposed. Every right or duty
involves a vinculum juris or a bond of legal obligation by which two or more persons are bound
together. There can be no duty unless there is someone to whom it is due. Likewise, there can be
no right unless there is someone from whom it is claimed.

According to Holland, Every Right implies the active or passive forbearance by others
of the wishes of the party having the right. The forbearance on the parts of others is called a duty.
A moral duty is that which is demanded by the public opinion of society and legal duty is that
which is enforced by the power of the state.

According to Keeton, A duty is an act of forbearance which is enforced by the state in

respect of a right vested in another and the breach of which is wrong. Every right implies a co-
relative and vice versa.

The views of Salmond is that rights and duties are co-relative . If there are duties
towards the public, there are rights as well. There can be no duty unless there is some person to
whom that duty is due. Every right or duty involves a bond of obligation.

In Minerva Mills Ltd. V. Union of India, the Supreme Court observed: There
may be a rule which imposes an obligation on an individual or authority, and yet it may not be
enforceable in a court of law, and therefore not give rise to a corresponding enforceable right in
another person. But, it would still be a legal rule because it prescribes a norm of conduct to be
followed by such individual or such authority. The law may provide a mechanism for
enforcement of this obligation, but the existence of obligation does not depend upon the creation
of such mechanism. The obligation exists prior to and independent of, the mechanism of
enforcement. A rule imposing an obligation would not there for cease to be a rule of law because
there is no regular Judicial or Quasi-Judicial machinery to enforce its command. Such a rule
would exist despite any problem relating to its enforcement.”

3. Possession
Earlier legal system did not recognized the distinction between the possession and
ownership. In Roman law, ownership and possession are relative terms – dominium and
possession, which denote absolute right to a thing, while possession implied only physical
control over it.

Romans attached greater importance ownership rather than possession because in their
view having absolute right over a thing was much important than merely having physical control
over it.

4. Ownership
The term ownership was used in English law for the first time in 1583, and when it was
distinguished from possession.

Ownership is a supreme right that can be exercised on anytime.

Hibbert, define ownership which includes within its four kinds of rights-

1. Right to use a thing.

2. Right to exclude others from using the thing.
3. Disposing of thing.
4. Rights to destroy.

Hibbert suggested that no one can have an absolute ownership in land as land not capable of
being destroyed. One can merely have an estate in it.

Austin – right indefinite in point of user, unrestricted in point of disposition and unlimited in
point of duration, it is a right in rem which is available to the owner against the world at large.
Elements of ownership a/c AUSTIN-

1. Indefinite user –
2. Unrestricted Disposition –
3. Unlimited duration –

Criticism against Austin Definition-

It is being criticize, that – it is fallacious to think that ownership is a single right, in fact it is a
bundle of rights including right of user and enjoyment.

Second that the owner has an unrestricted right of disposition is not correct. The right of
ownership can be curtail by the state subject to injurious to public health/ or for public use as per
the Constitution of India Article 31 (2), any property can be taken by the state for public use.

Salmond - Relation between a person and right that is vested in him. In simple sense
ownership signifies the relation between the person of inherence and the object of ownership.

Salmond try to comprehend ownership in a wider sense to include both corporal and
incorporeal rights. Thus a man can own a copyright or a right of way.

Duguit - criticized Salmond – a person really owns a thing and not a right.

Paton - Define ownership in respect of four things –

1. Right of use.
2. Possession which also includes elimination of other.
3. Right of alienation.
4. Disposition.

Characteristics of Ownership:
1. It may be absolute or restricted.
2. Subject to public safety.
3. Law does not confer ownership on an unborn child or an insane person because both of
them are incapable of conceiving the nature and consequences of their acts.

A/c to Salmond there are two ways of acquiring the ownership –

1. By operation of law. Such as the law of intestacy (Dying without a legal will) or
bankruptcy.
2. By reason of some event or act, such as taking or making a thing for the first time.

There are three generally known modes of acquisition of ownership-

 1. Absolute – when there was no previous owner of that thing, i.e., res nullius (ownerless
thing).
2. Extinctive – when ownership of a previous owner has been terminated by reason of
adverse possession by the acquirer.
3. Accessory – acquired as a result of accession, e.g., owner of an animal has right to its off
springs or the owner of a tree has the right of the fruits of the tree.

Salmond think that the concept of ownership is changing with social changes pointed out that
in ancient times the right of ownership regarded as absolute, but in modern time it is subject to
reasonable restriction.

Kinds of ownership –
1. Corporeal and Incorporeal -
 Material / tangible object = corporeal i.e., pen, table, vehicle etc. it is chose in
possession.
 Immaterial / intangible = incorporeal- i.e., copy right etc, it is chose in action.
2. Sole and Co-ownership –
 Sole = single person ownership.
 Co-ownership = when it vested in two person.
I. Common = Right of the deceased passes on to his successor like
other inheritable right. For example, when a property belongs to A, and
B in equal shares and if A dies, the right of half of the thing will pass on
to the legal heirs of the property. And the other half will remain with B.
Hindu law recognized the right of common ownership.
II. Joint = If one of the two joint owners dies, his right of ownership
also dies with him and the survivor becomes the sole owner by virtue of
his right. It is also called the right of survivorship.
3. Trust and Beneficial –
The property is owns by two owners, in which one is under an obligation to use his
ownership for the benefit of other. The former is called the trustee and the later is
called the beneficiary. The ownership is nominal for trustee rather than real because
he is deprived of any right to the beneficial enjoyment of the trust property.
4. Vested and Contingent –
Vested = perfect ownership
Contingent = fulfillment of some future condition.

Possession:
 It is defacto exercise of a claim
Possession is in fact while ownership is in the form of the right. Possession is the prima facie
example of ownership.

Henry Maine – possession means that contact with an object which provides the rights of
exclusion of other from the enjoyment of it.

Pollock - having physical control over a thing is possession.

Salmond - the possession of a material object is the continuing exercise of a claim to the
exclusive use of it.
Savigny - physical power of exclusion.

Nature of Possession –
Possession is the most basic relation between man and things. Possession of material
thing is essential to life because the existence of human life and human society. It is also one of
the modes of transferring ownership. Possession is said to be nine points of law
meaning thereby that it is an evidence of ownership. For example a thief who steals
my watch has a possession which the law protects against everyone except myself or some
person on my behalf.

Possession under Roman Law – under Roman law it has been defined in two
categories –

1. Corpus possessionis – Simply a physical control over a thing.

2. Civilis possessionis - legal possession. The property disputes mostly decided on
the basis of this possession.

Animus –
A person was deemed to be in legal possession of a thing when not only thing was in his physical
control or he had custody over it. But he also had the power to exclude other from interference in
his possession. This is the mental element.

Holms – to gain a possession a man must stand in certain physical relation to the object and to
the rest of the world, and must have certain intent.
The Roman law distinguished detention from the custody. In detention a person
was to have real possession and control over a thing though he may not have ownership of it.
The custody on the other hand involved possession and control without ownership.

Elements of Possession
Holland – possession has two essential elements –
 Corpus – Physical control over a thing.
 Animus – Power of exclusion other of it use.

Salmond - It is not necessary that animus should always be present in legal possession.
Ihring - takes a sociological view of the concept of possession, he doesn’t give much stress
animus, he says it is quite immaterial as to how a person intended to possess a thing but what is
important is how he got it.

Case ref. – N. Majumdar v/s State – the question of animus came up for
determination before the High Court of Calcutta.

Brief Fact – Police made a search of the accused house that the pistol would be recovered
from there but no such recovery could be made. In the meantime, the accused had a quick word
with his wife who went out and returned within three or four months with a pistol and some
cartridges. The police took the plea that as per Section-27 of the Evidence Act, it should be
presumed that the pistol was recovered from the possession of the accused. The Court, however,
rejected the contention of the prosecution and held that the Arms Act being a special enactment,
the fact of corpus must be specifically proved and mere existence of corpus
without animus is ineffective to constitute possession.

Savigny –
1. Corpus – physical control of the thing, that is, immediate physical power to
exclude any foreign agency’s interference by the possessor.
2. Animus – mental element or conscious intention to hold the object as owner
against all other.

Criticism – Firstly, he assumed that without the combination of these two elements,
possession is not possible, and possession will lost either of these two elements are lost and in
some instances without the element of both of this.
 Secondly, law does not protect a possession which is acquired unlawfully, although both the
elements are present.

Ihring – consider animus only as a supplemental element for possession.

Criticism – Ihring purely analyzed the concept of possession in the background of

Roman law refused possessory rights to persons who were in effective physical control of the
thing possessed.

Kinds of Possession –
1. Corporeal and Incorporeal –
Corporeal Possession
1. Meaning: corporeal – having a body. It is seen and tangible.
Corporeal possession is the possession of a material object.

1. Examples: house, car, cycle, book, pen, computer, typewriter, wearing clothes, etc.
2. Corporeal possession is the possession of a thing.
3. The material object is seen.
Incorporeal Possession

1. Meaning incorporeal – having no body.

2. In corporal possession is the possession of anything other than a material object.

3. Examples: trade mark, patent, copyright, etc.

4. Incorporeal possession is the possession of a right.

5. It cannot be seen.

2. Mediate and Immediate Possession – Mediate means possession through

third person – for example I purchase a book through any agent or servant. I have mediate
possession so long as the book remains in my agent’s possession.

Immediate – Direct possession.

 3. Adverse Possession - It implies a possession by a person initially holding
the land on behalf of some other person and subsequently setting up his own claim as a
true owner of that land. If a diverse possession continues peacefully, undisturbance for a
prescribed period (12 years in India) the title of the true owner is extinguished and the
person in possession becomes the true owner of that land. The law on adverse possession
is contained in the Indian Limitation Act. Article 65, Schedule I of The Limitation Act
prescribes a limitation of 12 years for a suit for possession of immovable property or any
interest therein based on title.

Mode of Acquisition of Possession –

1. By taking – Without Consent of owner.
2. By delivery – with consent of owner.
3. By operation of law.

Relationship between possession and ownership –

Possession has been treated as an external evidence of ownership. A person possesses of a thing
may be presumed to be the owner of it. The person in possession may not need to prove the
ownership.

No Possession Ownership

1 Meaning: Meaning:
“Possession” literally means The term ownership is derived
‘physical control over a thing or an from Latin word ‘own’ which
object’. The possessor has better title means “to have or to hold a
against the whole world, except the thing.” One holds a thing as his
true owner. Possession is nine points own is called owner and will have
in law. the right of ownership over it.
Therefore the term ownership
literally means legitimate and
absolute right of a person over a
thing.
2 Definition : Definition:
It is very difficult to define the term Different writers defined the term
possession. Some jurists have given ownership. Prominent among them
different definitions. are as follows

(1) Savigny: Savigny defines (1) Austin: ownership is a right

possession as, “intention coupled availing against the world
with physical power to exclude others indefinite in point of user,
from the use of material object.” unrestricted in point of disposition
and unlimited in point of duration
(2) According to John Salmond over a thing.
Possession is the continuing exercise
of a claim to the exclusive use of an (2) Holland: Ownership is a
object. plenary control over an object. The
owner has three rights on the
object owned. (1) possession (2)
enjoyment (3) disposition

3 Possession is the most basic relation Ownership is the relation of the

between man and a thing. person with an object forming the
subject matter on ownership.

4 The Transfer of possession is The transfer of ownership in most

comparatively easier and less cases involves a technical process
technical of convincing

5 Possession is prima facie a proof or It consists bundle of rights and all

an evidence of ownership. the rights are right in rem.
 5. Liability
NATURE OF LIABILITY
In civilized societies most of the relation between the individual and the state are governed by
rules made or recognized by the state; that is, law. Law lays down the rights and duties of the
individuals.

In other words, it prescribes what one is to do and what one is not to do and what one is entitled
to get "it” done.

A branch of these rules is called wrong. When a person has committed a wrong, he is said to be
liable. Thus, liability is the condition of the person who has committed a wrong.

Liability or responsibility results from a wrong of breach of duty. It is something which a person
must do or suffer on account of his failure to do what he ought to have done "duty”. A person has
a choice in fulfilling his duty, but liability arises independently of one’s choice.

Liability is the "vinculum juris”, i.e. the bond of legal necessity that exists between the
wrongdoer and the remedy of the wrong.

Liability differs from obligation in as much as the latter refers to what a person ought to do on
account of some duty cast upon him but the former refers to something which the person must do
or suffer because he has already failed to do.

One of the traditional fields of orthodox jurisprudence is liability. This also has felt the impact of
new jurisprudence (P.B. Mukherji, The new jurisprudence, P.I3)

The term liability, which occupied a place of pride in the hierarchy of the legal concepts has in
English law been used to express three things.

(1) It has been used to express the position of person who has undertaken to do or to abstain from
doing something by contract with another person.

(2) The term has been used to express the condition of person who has failed in the performance
of source duty, and who is consequently, called upon to make compensation to some person who
has suffered damage thereby.

(3) The term “liability” has been used to express the condition of a person who has not failed in
the performance of any duty, but who has done an act which has caused damage to another for
which he is required to make compensation1.
The duty to fulfill a contract and the duty to make compensation for damage caused by an act
which is not a breach of duty are primary duties, whereas duty to make compensation for damage
caused by a breach of duty is a secondary one.

Liability “ex-contracto” which is liability to a primary duty and liability “ex-delicto”, which is
liability to a secondary duty, have long since been recognized as two sub divisions of the same
class.

DEFINITION:
 Salmond: “Liability and responsibility is the bond of necessity that exists between the
wrongdoer and the remedy of the wronged'

•Liability arises from a breach of duty which may be in the form of an act or omission.

 Markby says: “The word liability is used to describe the conditions of a person who
has a duty to perform.”

According to AUSTIN, liability consists in those things which a wrongdoer must do or

suffer. It is the ultimatum of law and has its source in the supreme will of the state. Liability rises
from a breach o duty which may be in the form of an act or omission. AUSTIN prefers to call
liability as "immutability". To quote him, “these certain forbearances, commissions or acts,
together with such of their consequences as it was the purpose of the duties to avert are
imputable to the persons who have forborne, omitted or acted. Or the plight or predicament of
the persons who have forborne, omitted or acts, is styled immutability”.
It is thus evident that liability arises from a wrong or the breach of a duty in law

Thus, liability is the plight, condition, or the state of the person who has acted, for borne or
omitted contrary to law. It may also be described as the state of the person who has violated a
right or acted contrary to a duty.

KINDS OF LIABILITY
Liabilities can be of many kinds. There are civil and criminal liability, remedial and penal
liability, vicarious liability and absolute or strict liability.

 Civil and Criminal Liability—Distinction.—these may be distinguished

in three respects, namely—

(i) Procedure.—Proceedings of civil liability take place in one set of courts and criminal
proceedings in a different set: civil liability requires enforcement of some right, criminal
liability, results in punishment for some crime.
(ii) Nature of redress or remedy. —In civil proceedings the remedy is in the form of
damages, the redress for criminal liability is in the form of punishment.

(iii) The measures of liability.—As regards the measure of liability, criminal liability is
measured by four elements, namely— (1 ) motive, (2) intention, (3) character of the offender,
and (4) the magnitude of the offence. In civil liability, motive and character of the wrongdoer are
as a rule irrelevant.

 Remedial and Penal Liability—Distinction.–The remedial liability is

based on the fundamental principles of “ubi jus ibi remedium”, that is ‘for every
wrong there is a remedy’. Wherever law confers a right it also provides a remedy for the
infringement of that right.

When the remedy is punishment the liability for which it is given, becomes a penal liability.

Remedial liability is civil liability, but the converse is not true. Civil liability is sometimes penal
also. All criminal liability is penal liability.

 Remedial Liability
In so far as remedial liability is concerned it is founded on the well-known maxim - “ubi
jus ubi remedium” which means, where there is right, there is remedy. Thus where the law
creates or imposes duty, it also enforces its specific performance. For every breach of duty, there
is a remedy in the law. But there are certain exceptions where the duty is not specifically
enforced.

(I) DUTIES OF IMPERFECT OBLIGATION

In the first place, there are duties of imperfect obligation. A time-barred debt is an example of it.
Thought eh debt exists in law, it is not enforceable.

(II) Duties which by Nature are Incapable of Specific Performance

Another exception of the rule are duties of such a nature, which once broken cannot be
specifically enforced, for example, in an act done the defendant cannot be made to refrain from
it. Everyone has a right to reputation, and therefore, there is a corresponding duty imposed on
others not to violate such right. But if at a libel, is committed the specific enforcement of
corresponding duty of defendant “i.e. the person who has committed libel’’ is not possible. In
other words, once a mischief has been done, it cannot be undone. In such case damages are
perhaps the only adequate remedy.

(III) Where Specific Performance is Inexpedient or Inadvisable

 In the third place, there are cases where thought eh specific performance of duty is
plausible, the law does not enforce its specific performance but rather awards damages to the
plaintiff. For example, law does not enforce the specific performance of a promise of marriage or
painting to picture but normally award damages in such cases

In other words, “ubi jus ibi" remedium - which means where there is right there must be
a remedy. When law creates a duty it ensures its fulfillment also. For the breach of duty there is
some remedy prescribed by law, and it is enforced by law. Thus, the purpose of remedial liability
is to ensure the specific enforcement of plaintiffs rather than punishing the wrongdoer.

According to the theory of remedial liability whenever law creates a duty it should enforce the
fulfillment of such duty. The law imposes remedial liability on one who fails to perform such
duty.

Briefly ordinarily a duty is enforced by law except in the following cases where law will not
enforce the same.

(1) Duties of imperfect application, e.g. time-barred debt

(2) Incapable of specific performance due to its intrinsic nature — here only compensation will
come into play e.g. tarring one’s reputation.

(3) Specific performance inexpedient- promise of marriage. Court would not insists on enforcing
a marriage.

In all above cases duty is there but it cannot be enforced. Remedy is lost.

As to the civil liability, no corresponding general principle like that of penal

liability can be laid down. In some civil cases proof of actual damages is insisted upon while in
others there is no such necessity. As stated earlier, in case of criminal responsibility, persons are
judged by their acts and by the mischievous tendencies of them, but so far civil liability are
concerned they are often judged by the actual event. The difference between the two, as pointed
out by SALMOND can be illustrated thus:-

Criminal law says, “you should not do this, if you do this you will be punished". Civil
law on the other hand, says, “You may do this, but if any evil consequences chance to follow,
you will be held liable The essence of civil liability is contained in two Latin maxim, namely,

(1) Damnum sine injuria, and

(2) Injuria sine damno

 DAMNUM SINE INJURIA

All wrongs are mischievous in the eyes of law but the converse is not true. There may be
cases in which damage is caused knowingly and willfully but the law will not hold the
wrongdoer accountable for it. The law ignores the harm of his nature because no legal injury is
caused. Such cases are covered under the maxim - damnum sine injuria. The word "injury”
signifies “an act contrary to law" or violation of legal right. The maxim means that damage
without “injuria” “infringement of right” is not actionable. Mere loss in money or money’s worth
does not itself constitute legal damage and is not a good ground of action. There are many acts,
which though harmful, give right of action to him who suffers their effects. Damage so done and
suffered is called "damnum sine injuria” i.e. actual and substantial loss without infringement of
any legal right and in such cases no action lies. Hence the maxim implies that loss or detriment is
not a ground of action, unless it is the result of a species of a wrong of which the law takes
cognizance. Thus if I have a mill, and my neighbor sets up another mill, and thereby the profits
of my mill fall off, I cannot bring an action against him even though, I have suffered damage.

SALMOND’S CLASSIFICATION
SALMOND classifies the principal cases of “damnum sine injuria” as follows:

i) Where the harm is caused by a persons’ lawful exercise of his own right, as in the
case of loss inflicted on individual traders by competition in trade.
ii) Where the defendant exercises alright to his property.
iii) Where the damage is caused by a man acting under necessity.
iv) Where the harm complained is too trivial, too indefinite or too difficult to prove for
effective legal recognition.
v) Where the harm caused is of such a nature that the law considers it expedient to
confer any right of pecuniary redress upon the individual’s injury.

According to SALMOND, the cases covered under the maxim “damnum sine injuria” can be
grouped in two categories, as under:'

(1) Cases in which there is an injury to an individual but the society as a whole is benefited,
therefore such acts are not actionable. For example, competition in trade might result into harm
to some traders but the society in general is benefited by it. Therefore, harm caused thereby is
not "injury" (Mogul Steamship Co. V. Mac Gregor (1889) 23 GBD 612) and hence does not
incur civil liability. Again, a land owner may so excavate his land as to withdraw support need
for adjoining building or he may drain away water which supplies his neighbor reservoir. (Allen
V Flood (1898) AC 1) These acts may be harmful to individuals nevertheless they are justified
in law for they are in public interest.

(2) The second category of cases falling under the maxim “damnum sine injuria” includes
all those cases in which the harm caused is so insignificant or trivial (De minimus non curat lex)
in nature or so difficult to prove that any attempt to prevent them shall “make the remedy worse
than the disease”4. There are number of leading cases on the subject, some of them being

A Gloucester Grammar School Case

The defendant a school maser set up a rival school next door to the plaintiff. Plaintiff
sued the defendant for the loss. It was held that no suit could lie on the ground that
“bonafide” competition can afford no ground of action, whatever damage it may cause.
 B Chasemore V. Richards (1819) 7H.L.C. 349

In this case a land owner and a mill owner who had for about six years enjoyed the use of
a stream, which was chiefly supplied by percolating underground water; has lost the use
of the stream after an adjoining owner had dug, on his own ground an extensive well for
the purpose of supplying water to the inhabitants of the district. In an action brought by
the land owner it was held that he had no right of action.

INDIAN CASES

1. Anand Singh V. Ram Chandra, AIR, 1963 MP. 28

The defendant built two “pacca” walls on his land on two sides of his house. The
result of this action was that the water flowing through lane belonging to the defendant
and situated between defendants and plaintiffs houses damaged the wall of the plaintiff.
This was to be a case of "damnum sine injuria ".

2. Dhadphale V Gurav, (1881) 6Bom. 122

Where the servants of a Hindu temple had a right to get the food offered to the idol, but
the person who was under an obligation to the idol of offer food did not do so, and the
servants brought a suit against him for damage, it was held that the defendant was under
no legal obligation to supply food to the temple’s servants, and though the result of his
omission to supply food to idol and might involve a loss to the plaintiff, it was “damnum
absque injuria" and could not entitle the plaintiffs maintain a suit.

 INJURIA SINE DAMNO

“Injuria sine damno" - literally it means injury without damages and is limited to those
kinds of breach of law which consists in the violations of another’s private rights. Law
recognizes certain permanent importance for an individual’s living in the society that an
infringement of it “ipso facto” presents a cause of action. The maxim, therefore, means
that where there is an infringement of an absolute private right is so infringed has a direct
cause of action. In such a case it is no necessary for the plaintiff to prove damage, for the
law presumes damage, when an absolute right is infringed. “Injuria sine damno”
therefore in other words, provides that actual perceptible damage, loss or detriment is not
indispensable as a foundation in an action for tort. Trespass to person i.e. assault, battery,
false imprisonment, libel and trespass to property, whether it be land or goods are
instances of tort that are ‘actionable per se’

The maxim is just converse of the earlier maxim “damnum sine injuria”. There are
certain acts which though not harmful, are actionable. In other words, an injury without damages
incurs civil liability.
The case of “Ashby V. White" (1703) 1 ER 417) - the leading case on the maxim is
"Ashby V White” wherein it was held that where a person is injured in the exercise or enjoyment
of a right, an action is maintainable whether or not any material damage has been caused.

‘W’, the returning officer, in a parliamentary election wrongly rejected A’s vote. The candidates
for whom A would have voted were elected. A sued W and was awarded $200/- damages. In the
course of his judgment Holt, C.J., observed “if a plaintiff has a right, he must of necessity have
a means to indicate and maintain it, and a remedy if he in injured in the exercise or enjoyment
of it must be provided; and indeed it is a vain thing to imaging a right without a remedy for
want of right and want of remedy are reciprocal”.

The case of Ashby V. White is an illustration on the point of “Injuria sine damno. In
this case the plaintiff was wrongfully prevented from exercising his right to vote by the
defendant returning officers in a parliamentary election. The candidate for whom the plaintiff
wanted to cast his vote had come out successful in the election; still the plaintiff could recover
damages against the defendants for maliciously preventing him from exercising his statutory
right of voting in the election. Lord HOLT CJ observed that there was the infringement of a
legal right vested in the plaintiff hence the defendants were liable. Since no actual damages were
caused, the court awarded $20 by way of recognition of plaintiff’s legal right.

CAUSATION
In law, a man is held liable either for doing acts which are mischievous or for causing
actual injury to the plaintiff.

Causation, therefore, is an important concept for determining liability in law. In fact,

before deciding the question of liability the question of causation should be decided first.

Thus, if A is to be held responsible for burning B’s house, he must first be shown to have
caused it.

Causation, therefore, is an important factor to determine responsibility whether it is of a criminal

or civil nature. The causation broadly involves two types of occurrences, namely,

i) Abnormal factors;
ii) Human acts

Thus in the above illustration where a house has been burnt down, presence of inflammable
gas, ignition, an electric short circuit, etc. may be abnormal circumstances causing fire or it may
have been caused by some person. Once either of these factors is found present, it is easy to
know the causation and attribute responsibility.

An act may have been caused due to a change of causation involving several factors. It is the
established principle of law that a man is not held liable for his act if the chain of causation is
broken or interfered with. This is contained in the maxim - “novus actus interveniens”.
 SALMOND explains the maxim through an illustration. He says "if A stabs B and B is
taken to hospital where, despite the fact that he is shown to be allergic to terramyein, is
injected with a large dose of it, then his treatment and not the stab would be treated as a cause
of B’s death because the treatment which was abnormal, broke the casual connection between
the -wound by the accused and the victim's death” (R V JORDAN, (1956)40 Cr. App R-152)

The leading case on causation is relation to civil liability is “in Re Polemis” (1921) 3 KB
560) wherein the defendant’s servant carelessly dropped a plank into the ship’s hold, the plank
struck a spark which ignited petrol vapor whose presence in the hold was unsuspected. The
defendant’s were, however, held liable for damages caused to the ship. But this decision has been
overruled by the Privy Council in Wagon Mound (1961) AC 388) case and now forcibility of
consequences is the test for determining causation and liability.

In certain cases, the law will presume that a man has intended the natural and probable
consequences of his act. Thus in Scott V. Shepherd the defendant shepherd mischievously
threw a lighted cigarette squib into the market place. It fell where Yates sold ginger-bread. One
will is, to prevent injury to himself and Yates picked it up and threw it across when it fell in the
shop of one Royal who took it and threw it across when it struck the plaintiffs eye and injured it.
The court held that the injury to the plaintiff was directly and immediately caused by the
defendant, as Willis and royal, the intermediate agents acted involuntarily and for self-protection.
The injury was held to be not too remote. It is true that the defendant did not intend to injure the
plaintiff and much less to destroy his eye, nevertheless, he was held liable for one must answer
for the consequences which common sense would attribute to his wrong doing.

 Penal Liability
As stated earlier, the main purpose of penal liability is either directly or indirectly, to
punish a wrong-doer.

The basic principle underlying penal liability is contained in the maxim - "actus non facit
reum, nisi mens sit rea ” which means that act alone does not amount to crime, unless it is
accompanied by guilty mind. Therefore, two elements i.e.,

(i) act; and

(ii) guilty mind, are essential to constitute a crime.

No person can be punished merely because his act resulted into some crime unless it was
accompanied by “Mens Rea” or guilty mind. Conversely, mere presence of “mens rea" shall not
constitute a crime unless it is accompanied by some act. Thus "act” is the physical element of
the crime and “mens rea” is the mental element.
 Generally a man is hold criminally liable only for those wrongful acts which he does
either willfully or negligently. There are, however, some exceptional cases when law imposes
strict liability as in case of offences under the licensing acts or offences against public health. In
such cases, the act itself becomes punishable even without the presence of guilty mind or
negligence. That apart, the criminal law exempts certain categories of cases from penal liability.
These are commonly known as defences or general exceptions and include mistake of act,
accidents, infancy, minority, necessity, self-defence, voluntary intoxication, etc. If the offender
succeeds in establishing any of these defences, he is not punished though his offence may satisfy
the two conditions of “actus” and “mens rea".

The maxim “actus non facit reum nisi mens sit rea” stated long before by St. AUGUSTINE,
(St AUGUSTINE had said: "Ream Lmguam nonfacit nisi mens rea", sermons no. 180 C.2;
cited m Pollock & MaiHand, Hist. Of English law, 11476, N.5) became, with slight change the
best known maxim of the English criminal law though the words ultimately used by COKE.

As late as in 1798, KENYON, C.J. had stated that “the intent and act must both concur to
constitute the crime”. Since that time the English reports do not show any case in which the
authority of Lord KENYON has been denied by the English courts.

The maxim thus, which has been accepted by the English courts as a cardinal doctrine of
English law for centuries, recognizes that there are two constituent elements in crime,

(i) A physical element, and

(ii) A mental element, and

It makes plain that at common law no man may be found guilty of crime and therefore
legally punishable unless in addition to having brought about a harm which the law forbids, he
had at the time a legally reprehensible state of mind. It is, therefore, necessary to reach an
understanding of these two constituent parts of criminal responsibility.

According to AUSTIN intention and negligence are the alternative forms in which ‘‘mens rea”
can exhibit itself. It is a condition precedent for the existence of guilt. In other words, a person is
liable to be punished if he does a wrongful act intentionally or negligently.

SALMOND calls it the physical or material condition of liability. If there is no act, there can be
no punishment.

To quote Justice BRYAN: “the thought of man cannot be tried, for the devil itself knoweth
not the thought of man”

KENNY gives the following example: “a man takes an umbrella from a stand at his
club with intent to steal it, but finds it his own”. He has committed no offence. The second
condition 6f penal liability is “mens rea" or guilty mind. An act is punishable only if it is done
intentionally or negligently. Intention and negligence are the alternative forms in which “mens
rea” can exhibit itself.
 The conditions of penal liability, the act does not constitute guilt unless it is done with a
guilty intention. Two things are required to be considered in this connection and those are the act
and the “mens rea” or the guilty mind of the doer of the act. "Mens rea” requires the
consideration of intention and negligence. The act is called the material condition of penal
liability and the "mens rea” is called the formal condition of penal liability.

ACT

An act is not capable of being defined in exact terms. It denotes only such physical facts
which follow immediately upon the determination of will to effect them.

SALMOND defines act as “any event which is subject to the control of human will”.

AUSTIN defines act as a "movement of the will. It is the bodily movement caused by volition
— a volition being a desire for bodily movement which is immediately followed by such
movement provided the bodily members is in a normal condition”.

The view of HOLMES is that “an act is always a voluntary muscular contraction and
nothing else” (The Common Law). Thus, according to AUSTIN & HOLMES both the jurists an
act is a wild movement of the body.

SALMOND takes “act” in a wider sense. He says "we mean by it (act) any event which is
subject to the control of human will”. SALMOND’s use of the word "event” is of great
significance. “Event” is not an act in the strict sense nor is movement, but SALMOND by act
means those events which are subject to the control of human will.

An act consists of three stages:

(a) Its origin in some mental or Bodily activity or passively of the doer
(b) Its circumstances, and
(c) Its consequences.

For example, if we take theft it has five ingredients. (Section 378 of the Indian Penal Code)
(1) Dishonest intention to take property.
(2) The property must be movable property
(3) It should be taken out of the possession of another person.
(4) It should be taken without the consent of the person, and
(5) There must be some moving of the property in order to accomplish the taking of it.

If we examine the ingredients in the light of the above definition we can say that it is an
act according to the definition.

Leaving the first ingredient which is the second condition - mens rea “that shall be
discussed later on” if we arrange the other ingredients in the light of the definition, intention to
take the property is a mental activity where the act originates.
 The circumstances are : the property must be movable “ingredient-2 it should be taken
without the consent of that person “ingredient-4” there must be some moving of the property in
order to accomplish the making of it “imgredient-5 The consequence is that the property is taken
out of the possession of another person “ingredient-3

A theft would take place when all the ingredients are complete. When we use the word
“act" as condition of penal liability it is used in its wider sense, and not in its limited as sense as
the movement of the body only. Therefore, the definition given by SALMOND is more accurate
than the definition by AUSTIN and HOLLAND.

The law prescribes under what circumstances and consequences an act shall be
punishable or, in other words, a person committing the act shall be under penal liability. The
circumstances so prescribed are relevant in determining whether a particular act “wrong” has
taken place or not. A person is liable only for his own acts and not for the acts done by others, or
the events which are independent by human activity.

From legal point of view, an act does not necessarily mean a bodily movement or a
muscular contraction alone, but it must be accompanied by the consequences to the attainment of
which the original act is directed or aimed at.

For example, a man will not be held liable for gales, thunderstorms and other natural
calamities (In legal terms they are called “act of God" or vis major) which are beyond human
control. Nor shall a man be liable for his thoughts and intentions alone unless they are actually
transformed into an act. It may be pointed out that a bodily movement or muscular contraction
alone shall not be act unless it is caused by volition which is a movement caused by human will.
The reason being that muscular contraction may be due to some disease or pain and may not be
intentional at all.

It is significant to note that for the purposes of penal liability the "act” also includes
within it “omission An omission consists in not performing an act which is expected of a man
because he normally does it or because he ought to do it. Thus, omissions in our liability where
there is a duty to act.

ACT AND EVENT DISTINGUISHED

The distinction between act and event also deserves consideration.
An act must be purposeful but an event is purposeless.

IHERING illustrates the distinction between an act and an event by an example. A jumped
down from a tower because he wanted to kill himself. Here jumping constitutes an act. It is
composed of muscular movement which is necessary for jumping. The jumping is also done with
a purpose of killing himself. But A’s losing life by a fall from the tower is an event. The falling,
therefore, is an event and not an act. This is so because it does not consist of any bodily
movement following upon volition.
An act is an event which is subject to the control of the human will.

(1) It may be positive or negative, i.e. doing something or omitting to do something.

(2) Internal or external i.e. acts of mind or act of body.

(3) Intentional or unintentional: an act is intentional when it is foreseen and desired by the doer.

Three aspects of act:

(a) Origin
(b) Circumstances
(c) Consequences

Illustration: shooting -physical doing of the act.

Origin: a person is in range of revolved

Circumstances: the bullet enters the body of the man - consequences.

Law punishes acts sometimes considering the hour at which these are done, e.g., house breaking
at night.

MENS REA
It may be reiterated that a man is held criminal liable not for his act alone but if it is also
accompanied with “mens rea” or guilty mind with which he does it.

Thus, “mens rea’’ refers to the mental element necessary for the particular crime and the
mental element may either be intention to do the act or recklessness “or negligence” as to
consequences of that act. Generally, the knowledge of the consequences is considered as part of
mens rea because mental condition of a man can be judge by his conduct and it is rather difficult
to peep whether he did the act intentionally or recklessly with the knowledge of the consequence.

Guilty mind "mens rea” may assume two forms, i.e.

(1) Wrongful intention; or

(2) Culpable negligence

The doctrine of mens rea has been well explained in the famous English case of
R.V.TOLSON, (1889) 15 Cox 629 )In this case a woman whose husband had deserted her
married another man before the expiry of seven years which was against English law relation to
marriages. The jury, however, found the woman "not guilty” of bigamy as the bonafide believed
that her husband had died. The court acquitted her of the charge of bigamy as mens rea was not
proved in this case.

Thus a mere act does not constitute an offence unless it is coupled with mens rea.
 In other words, mens rea is an essential ingredient for a crime. Sir J.STEPHENS,
however, thinks that the doctrine mens reea is misleading. In his view, the doctrine originated
when offences were not defined unless the criminal law. Some persons found that the crime
consisted not merely in doing a particular act such as killing, stealing, etc. but doing it with a
particular knowledge or purpose. The mental condition came to be called as mens rea. But now
at the present stage when every offence is well defined, the doctrine of mens rea has become
unnecessary if not obsolete.

Development of the doctrine of Mens Rea

In the earliest time it was the fundamental presumption that a man in every case intended
to do what he has done. The English criminal law began with strict criminal liability, and there
was no clear distinction between the Tort and crime.

Therefore the mental attitude of a person was an irrelevant consideration in so far as trial
and punishment was concerned.

But later on bodily punishment came as the substitute of the payment of damages. It was then the
importance of mens rea or the attitude of a person, at the time of commission of crime was
realized. With the passage of time requirement of mens rea as an essential element of a crime has
firmly taken in its roots.

Mans rea in its root

Now it is the combination of act (actus reus) and intent mens rea which makes a crime. And the
maxim – Actus non facit reum, nisi mens sit rea means act alone does not make a man guilty
unless his intentions were so, is a well known principle of natural justice.

There can be no crime large or small without any evil intent. The responsibility in crimes must
depend on the doing of a willed or voluntary act and a particular intent behind that act. Most
conscious and voluntary acts are directed towards a particular result or consequence. When one
acts to produce a particular consequence, he is said to do that act with that intention.

Exceptions to mens rea

Crime = Voluntary + foresight of the consequences.

Act done under compulsion:

If the consequence not looked for the act may be voluntary but not intentional. For any
criminal liability there must be a voluntary act, this preposition drive from the maxim -

Actus me invite factus non est mens actus which means an act done by me
against my will is not my act. This maxim support the doctrine of Mens Rea – for no person can
be held liable for an act done under fear or compulsion.
For example:

A holds B and compels him at gun point to open a lock of ‘C’s house. Here ‘B’s act not a willed
or intentional act.

The basic requirement of the principle of mens rea is that accused must have been aware of all
those elements in his act which make it the crime with which he charged.

Offence against state, police, nuisance and strict liability etc. mens rea is not requiring.

APPLICATION OF THE DOCTRINE OF MENS REA IN INDIA

Whatever may be the position of mens rea in English criminal law but this doctrine is
wholly out of place with reference to the Indian Penal Code, 1860

As J.D.MAYNE, the learned author of criminal law in India, has pointed out, "every offence is
defined and the definition states not only what the accused must have done, but the state of mind
with regard to the act when he was doing it”.

Mens rea means a mental state, in which a person deliberately violates a law. Thus mens
rea means intention to do the prohibited act

These are known as mental elements in criminal liability. Therefore an act in order to be a crime
must be committed with a guilty mind.

Actus non facit reum nisi mens sit rea is a well known principle of natural justice
meaning no person could be punished in a proceeding of criminal nature unless it can be
shown that he had a guilty mind.

In juristic concept, actus reus represents the physical aspect of crime and mens rea the
mental aspect, which must be criminal and co-operate the former. Actus reus has been defined as
such result of human conduct as the law seeks to prevent. Mens rea which is a technical term
generally taken to mean some blameworthy mental condition or mind at fault, covers a wide
range of mental states or conditions the existence of which would give a criminal hue to actus
reus. No act is per se criminal; it becomes criminal only when the actor does it.

Technically the application of mens rea is not applied to the offences under I.P.C. Every
office is very clear under I.P.C. 1860. The definition not only states what accused might have
done, that also states about the state of his mind with regard to the act when he was doing it.
Each definition of the offence is complete in itself. The word mens rea is not use anywhere in
I.P.C. However, the equivalent words to those of mens rea in the I.P.C .code very frequently
such expressions are – Dishonestly (S-24), Fraudulently(S. 25), reason to believe (S.26)
Voluntarily (S-39).

Moreover Chapter IV of I.P.C. General exceptions (Ss. - 76-106) is provided the circumstances
when options of criminal intent may be presumed.
Case References:
1. Sankaran Sukumaran v/s. Krishnan Saraswati (1984 Cr.L.J.317) S.C.
held that:

Mens rea is an essential ingredient of the offence under Section 494 (bigamy),
where the second marriage has been entered in a bona fide belief that the first
marriage was not subsisting, no offence under this Section committed.

2. C. Veerudu V/s State of Andhra Pradesh (1989 CRLJ 52 (AP) SC held that
u/s 498 (A) cruelty means “willful conduct’’. Willful conduct includes mens
rea.

3. Banvarila Agarwal v/s Surya Narayan (1994 Cr.L.J. 370) SC held that, the
intention of the accused must be dishonest and there must be mens rea.

Conclusion:
In modern statutory offences the maxim has no longer applicable and the statutes are to
be regarded as themselves prescribing the mental element which is pre-requisite to a
conviction. So, mens rea is an essential element of crime, in every penal statue, unless the same
either expressly or by necessary implication is ruled out by the statues.

Act to be voluntary:
Act means a conscious or willed movement. It is a conduct, which results from the
operation of the will. According to Austin any movement of the body, which is not in
consequence of the determination of the will is not a voluntary act. It is only a voluntary act that
amounts to an offence.

Illustration: A fire at a wild animal but his fire missed and hit B who is behind the
bush and B dies. Here A would not be liable because he has no intention to kill B, but on the
other hand if A knows B is there behind the bush then he will be liable.

Intention + Act + Result = Crime

Crime = Vulnerary + foresight of the consequences.

CONSTITUANT PART OF CRIME

1. Actus Reus- An Act which is prohibited by Law. It is the physical part

of a crime.
2. Mens Rea- Mental element in crime. (Intention) mens rea means a
mental state, in which a person deliberately violates a law. Thus mens rea
means intention to do the prohibited act. In Allrd v. Selfridge, it was held,
intention to do an act which is made penal by statute or by common law.
DESIRE IS CONSTRUCTED TO WILL AND THIS WILL FORMS MOTIVE AND THIS
MOTIVE FORMS INTENTION AND INTENTION FORMS ATTEMPT AND
ATTAMPTS FORM COMMISION OF OFFENCE.

Actus non facit reum, nisi mens sit rea '-

‘An act does not make a person legally liable unless the mind is legally blameworthy'.

Offence against state, police, nuisance, and stick liability etc. - mens rea is not require.

PRESUMPTION OF INNOCENCE
It is the fundamental principle of criminal law that everyone is presumed to be innocent
until his guilt is proved by the prosecution. This, in other words, means that a person who is
accused of a crime is not bound to make any statement or offer any explanation regarding the
incidence of crime. He stands before the court as an innocent person. It is for the prosecution to
prove the guilt of the accused beyond reasonable doubt. However, there are certain exceptions to
this fundamental doctrine of criminal law. They are:

(a) The court may presume that a person who is in possession of stolen goods soon after the theft
is either a thief or a guilty receiver unless he has a satisfactory explanation for the possession of
that goods2. Section 114 Illustration (a) of the Evidence Act

(b) Where the accused pleads of protection under some of the exceptions “i.e. defences”, the
court need not presume innocence of the accused. In such circumstances if the defence fails the
accused will be convicted.

(c) There are certain offences relating to trademark (Sec 486 IPC), property mark Sec 487 & 488
IPC) and currency notes (Sec. 489 E IPC) under the Indian Penal Code the burden of proof of
innocence is shifted on the accused instead of the prosecution. In such cases the presumption of
innocence is negatived by the courts. In such cases the burden of proving innocence is on the
accused.

MALICE
Malice in popular sense means ill-will or spite. In legal parlance it, however, means
wrongful intention. It includes any intent which the law deems wrongful. An act done with a bad
intention or with bad motive is said to have been done maliciously. An evil motive is called
“malice”.

The term “malice,’’ therefore, includes both forms of intent, viz.

(1) Immediate, and

(2) Ulterior
 Motive is the ulterior object or intent, or the ultimate purpose with which an act is done.

In the case of “malicious prosecution’’, the term does not mean intentional prosecution,
but a prosecution inspired by some motive which is disapproved by law. It is only in exceptional
cases that malice is the sense of improper motive is relevant for determining the question of legal
liability; otherwise the law merely asks what the defendant has done, and not why he did it.

Malice “is a wish to injure the party rather than to vindicate the law” (POLLOCK on torts,
I5,h Ed. P.237) It is indicative of an evil mind which is disdainful of duties, social or legal, and
disregards the duties to others.

In common parlance, malice means ill-will against a person, but in legal acceptation, it
means a wrongful act done intentionally without just cause or excuse; Bromage V. Prosser,
(1825)4 B&C247, 255; Clark V, Malyneux, (1877) 3 QBD 237, 247

It is the doing of a wrongful act to another without legal excuse or justification willfully or
purposely.

Malice indicates varying shades of wickedness and includes cool depravity and hardness
of heart, vindictiveness, and perpetration of injurious acts without lawful excuse, cruelty,
recklessness of consequences and regardless of one’s obligation. It is a disposition which impels
injury to another without cause, from a spirit of revenge, or from personal gratification. It may be
implied from a deliberate intention to do a wrong without justification. It is not necessarily hate
or ill-will, but it is a state of mind which is reckless to law and of the legal rights of others. All
acts done with an evil disposition or unlawful motive with an intention to cause injury and
without a lawful excuse may be characterized by malicious. Malicious act is not one which is
done accidentally, thoughtlessly or negligently but diligently willfully or wantonly.

TRANSFERRED MALICE
Though there is a principle of criminal law that no act is intended unless all the three
aspects of the act, namely.. •

(1) Physical doing,

(2) Circumstances, and
(3) Consequences

Are present, there is an exception to this rule. This exception is covered under what is
known as the doctrine of transferred malice. It is also sometimes called as “transmigration of
malice”. The doctrine is explained by an illustration.

If a person intends to cause the death of A and in his attempt to cause the death of A, he
kills B, he would be guilty of having committed the murder of B though he never intended to kill
B. In this case, the general intention to kill is transferred to the killing of B. The doctrine of
transferred malice is reflected in Section 301 IPC which reads as under:
"If a person by doing anything which he intends or knows to be likely to cause death of any
person, whose death he neither intended nor knows himself to be likely to cause, the death
caused by him shall make him liable as if he had caused the death ofthe person whose death
he neither intended nor knew likely to be caused”

 NEGLIGENCE
Negligence developed from trespass. The modern law of negligence can be said to have begun
with the case of Donghue v/s. Stevenson (1932) although many 19th century cases helped
in this development.

Three main elements must be proved for the plaintiff to be successful in Negligence.

DUTY OF CARE
The defendant must have owed a duty of care to the plaintiff either at Common Law or Statute;

BREACH –
The defendant must have broken the duty of care by an act or omission which have fell below the
standard of care that was required of him or her;

DAMAGE-
The plaintiff must have suffered damage which was caused by the defendant’s breach of the duty
of care that was of a type that was a foreseeable result from such breach.

Common Law Duty of Care-

Lord Aitkin’s neighbor principle:

“You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor…….who is my
neighbour…….my neighbor is the person who is so closely and directly affected
by my act that I ought reasonably to have him in contemplation when I am
directing my mind to the act or omission in question.”

The Main Principle is Reasonable foreseeability.

The test is considered too wide as expressed in the statement as it would mean that every
careless act would be actionable. However it is used today mainly with reference to reasonable
foresee ability and is the foundation of a general concept of negligence which is an action in its
own right and not just an offshoot of trespass. Judges have used the principle and limited its
application over a period of years.

In Dorset Yacht Co. v. The Home Office (1970) the principle was confirmed but Lord Diplock said
that foreseebility alone was not the sole criteria but it was also necessary to consider previous
decisions, public policy and proximity.

In Anns v. London Borough of Merton (1978) Lord Wilberforce put forward a two
part test:

“It is necessary in every case to compare the facts of the situation that is before the court with
those of previous situations in past cases and require the two to correspond before declaring
that a duty exists. The court should instead answer to questions:

(1) Was there a sufficient relationship of proximity between the defendant and the
plaintiff that the defendant ought to have reasonably contemplated that carelessness
on his or her behalf would be likely to cause damage to the plaintiff?”

This is the same as Lord Aitkin’s principle but the word “proximity” is used instead of
“foreseeable” the effect of this is that the plaintiff who has suffered damage must not only be in
the defendant’s contemplation but also he or she must be “close” to the defendant in same way.

(2) “If there is proximity then were there any grounds for negating, reducing or limiting
the scope of the duty or the class of persons to whom it was owed or the damages to
which a breach of duty might give rise.”

Even if a person is proximate (foreseeable) the court may still hold that no duty was owed
because there were other considerations such as public policy or it was just unreasonable to
allow the plaintiff to be successful.

Reasons for limiting Lord Aitkin’s principle are as follows:

Commentators have tried to mark out a pattern as to when, even though there is proximity or
foreseeability, judges will consider that no duty should exist. It has been found that there are a
number of specific situations when the duty will either not exist or will be reduced even though
there is proximity of foreseeability. Examples of these are as follows:

1. Economic Loss
There is no remedy for an action in negligence where there was neither personal injury
nor property. Damages for pure economic loss are not recoverable.

In Murphy v. Brentwood District Council (1990) 2 All ER 908 a local

authority negligently approved plans for the construction of a house which had as a result
 had defective foundations. There was not damage to other property or to any person
therefore the loss was only economic and therefore not recoverable.

In Department of Environment v. Thomas Bates (1990) 2 All ER 943 a

building was constructed on piers which were inadequate for the design load. Held that
the remedial work was economic loss only and therefore not recoverable.

In both cases the proper remedy would be found in contract.

2. Omissions to Act
There is no duty to act for the benefit of others. If a person fails to save someone from
drowning when it appears that they could have done so with limited risk to themselves
the person will not be liable.

There are some exceptions: There is a duty upon employers to ensure that safety of
employees. This has been extended by statute in the Health and Safety At Work etc. Act, 1974.
There is also a duty upon parents to look after children. Therefore where there is a special
relationship between the parties and one is under a duty to protect the other there will be a duty
to act and failure to do so will lead the liability.

Statutory Duty of Care

Occupier’s Liability

The Occupier’s Liability Act 1957 imposes onto occupiers a duty of care in respect of all
visitors. A visitor is anyone who has expressly or impliedly permission to be on the premises. A
trespasser is anyone who is not a visitor and the liability that the occupier has for them is dealt
with by the Occupier’s Liability Act. A visitor therefore only has to show that he or she suffered
injury due to the negligence of the occupier for the occupier to be liable.

O’Connor v. Swan and Edgar (1963)

The plaintiff was a visitor working as a demonstrator. Part of the ceiling of the shop fell on her.
She sued the occupiers who were the owners of the shop and the plasterers who had undertaken
the work for the occupiers.

Held: The occupiers were not liable and so the plasterers were solely liable as independent
contractors.

Liability for Trespassers

In Addie v. Dumbreck (1929) a trespasser was defined as someone who goes onto land
without invitation of any sort and whose presence is either unknown to the proprietor or if known
is practically objected to.

A visitor shall become a trespasser if he or she goes into the part of the premises to which he or
she has not been invited or acts in a manner inconsistent with the invitation.

Before 1972 only two duties were owed to the trespasser:

1. Not to deliberately injure the trespasser;

2. Not to act with reckless disregard for the trespasser’s safety (in respect of children the
knowledge of that they were present and the existence of allurements would amount to reckless
disregard). In Glasgow Corpn v Taylor (1922) the Corpn. were held liable when a child of
seven eat poisoned berries in a public park although at the eating the berries the child was a
trespasser.

In 1972 the case of British Railways Board v Herrington extended the duty owed to a
trespasser by adding a duty of common humanity. In the case a six year old child went through a
hole in a fence from a children’s play ground to an electrified railway line and was electrocuted.
The evidence showed that the fence had been broken for some time and that the defendants knew
this and were also aware that children regularly had climbed through the fence but had taken no
action to stop them.

Held: The defendants were held liable for the injury caused to the child because they owned a
common duty of humanity. It was started that an occupier must act in a humane manner in
relation to trespassers taking into account the occupier’s:

- knowledge;

- ability;

- resources.

It was emphasized that the duty of humanity was not as high as the duty of care under the
Occupier’s Liability Act 1957. Under the duty of humanity the occupier need only take
reasonable steps to enable known trespassers to avoid personal injury from known dangers.
There was no duty on the occupier to inspect the premises for dangers. These principles are now
incorporated into the Occupier’s Liability Act 1984 as follows:

A duty of care to trespassers arises:

(a) When an occupier is aware of ought to be aware of a danger; and
(b) When that occupier is also aware of the presence of a trespasser of that a trespasser may
enter the premises; and

(c) It is reasonable, taking into account the type of risk involved, to except that protection should
be given to the trespasser. (A warning may be sufficient).

A number of cases between 1972 and 1984 have helped to show the application of this principle.

Demolition contractors were burning rubbish on a site. Three workmen were appointed to
supervise the fire and look out for children. ‘P; aged 5 fell into the fire while the workmen were
away. P was a trespasser and children had been chased away to a number of occasions.

Held: The demolition contractors were liable. They had failed to keep a proper look out knowing
that children were about.

Penny v Northampton BC (1974)

A fire was lit on a demolition site by contractors and a child was injured when an aerosol canister
exploded having been thrown into the fire by another child.

Held: The defendants were not liable as the child had not been injured as a direct result of the
negligence of their contractors.

Harris v Birkenhead Corpn (1975)

H aged 4 fell from the upper window of a derelict vandaalised house. The house was due to be
demolished but the Council had failed to board up the doors and windows in the mean time.

Held: The Council was liable because the house was a dangerous and tempting place for young
children.

It was stated that occupiers should have in mind:

- The probability of a trespasser;

- The types of trespasser who is likely to enter;

- The seriousness of the danger;

-weather the danger is hidden or obvious of particularly alluring;

- and in respect of the above would be expected to have knowledge of a substantial probability
but may neglect a bare possibility.

Westwood v The Post Office (1973)

W, an adult employee of the Post Office was injured when he entered an unblocked room which
had a warning of danger on the outside.

Held: The Post Office was not liable. Although the door should have been locked in the
circumstances the notice was sufficient warming to an adult.

Breach of the Duty of Care

Once the defendant has been shown to owe a duty of care to the plaintiff, it must then be shown
that the defendant is in breach of that duty of care.

Standard of care of the reasonable person

The standard of care which people are expected to exercise I that of the reasonable person. If a
person fails to act reasonably and as a result causes damage to another to whom he or she owes a
duty of care then that person will be negligent.

“Negligence is the omission to do something which a reasonable man guided

upon these considerations which ordinary regulate the conduct of human affairs
would do, or do something which a prudent and reasonable man would not do.”
(Alderson B in Blythe v Birmingham Water Works (1856).
The reasonable man is:

- The man on the clap ham omnibus;

- The man who takes the magazines at home and the evening pushes the lawn mower in his short
sleeves;

- He has not the courage of Achilles, the wisdom of Ulysses or the strength of Hercules but he
never puts out of consideration the teaching of experience and so will guard against the
negligence of others when experience shows such negligence is common.

A greater degree of skill is required when dealing with children but a lesser degree in an
emergency.

The Reasonable person and skill

The reasonable man or woman does not have the skills of a surgeon or a builder unless he or she
is one. If the person professes to have certain skills then the standard of care which he or she
must exercise when using that special skill is that of the reasonable person with that skill.

A person who has a special skill is expected to display a standard of competence common to all
persons with that skill i.e. average competency.
In Mahon v Osbourne (1939) a surgeon was held negligent as he left a cotton swab inside a
patient which a surgeon of average competency would not have done.

A person is judged by the competency of the time (the state of the art). In Roe v Min of Health
(1951) it was common practice to keep ampoules of vaccine in a particular liquid to keep them
sterile. Following an injection it was found that the vaccine had become contaminated by the
sterile liquid due to hair line cracks in the ampoules.

Held: The medical practitioner was not liable since at the time this was the usual practice and the
incident revealed its unreliability.

Risk v standard of care

The standard of care must commensurate with the risk. If the risk is small then no precautions
need be taken since the defendant need only guard against reasonable probabilities not fantastic
possibilities.

1. Magnitude of the risk

There are two elements:

(a) how likely is an injury;

(b) how serious would any injury be should it happen.

Bolton v Stone (1951)

The plaintiff was hit by a cricket ball while walking along a road that passed a cricket ground,
such an event was foreseeable and the cricket club owed an duty of care to passers by but
considering the distance from the pitch to the road, the club had discharged its standard of care
by the standard of care.

Paris v Stepbey BC (1951)

The plaintiff employee had one eye and undertook work which had a slight risk of eye injury.
However the severity of the injury would be greater in his case. The employers were therefore
held liable for breach of their standard of care, when his good eye was injured, in falling to
provide the employee with goggles.

2. Importance of the object to be obtained

Greater risks may be taken where the act or mission is in furtherance of an important objective.

Watt v Herts CC (1954)

A fireman was injured while riding in the back of a lorry carrying a jack. The lorry was not
equipped to carry the jack but it was being taken to an accident where a woman had been trapped
a heavy vehicle, therefore it was held that the object was worth the risk and the Authority was
not liable.

3. Practicality of precautions
If the defendant has taken all practical measures to protect the plaintiff then he or she will not be
liable. The likelihood of injury will be weighed against the cost of eradicating the risk.

Latimer v AEC (1953)

A factory floor became slippery after a flood. The defendants did all they could to get rid of all
the effects of the flood but the plaintiff slipped and was injured. The plaintiff argued that the
factory should have been closed.

Held the likelihood of injury was not so great as to warrant the enormous expense of closing the
factory.

Res lpse Loquitur

For a plaintiff to prove negligence he or she must show that specific acts of commissions of the
defendant amounted to negligent conduct. However in certain circumstances the courts will
allow a plaintiff to take a short cut when the defendants conduct on the face of it has been so
obviously negligent that the facts speak for themselves (res ipse loquitur) and the defendant will
not have to give detailed evidence on that point.

Scott v St Catherine’s Docks (1865)

A bag of sugar fell on the plaintiff through the door of the defendant’s warehouse. Since bags of
sugar are inanimate the defendant must have been negligent unless he could offer a reasonable
explanation which would show that he was not liable.

Three conditions are necessary for the maxim to apply:

1. Control – The thing which has caused the incident must be under management or control of
the defendant or his or her employees. If it can be shown that there was or a likelihood of some
intervening event the maxim will not apply.

2. The accident would not have happened without negligence – It must be

considered in the light of experience and knowledge. If a barrel falls from an upstairs window
onto a passerby (Byne v Boadle (1863) or a vehicle strikes a person on the pavement (Ellar v
Selfridge (1930) then experience tells us the occupier of the premises or the pavement (Ellar v
Selfridge (1930) then experience tells us that the occupier of the premises or the driver of the
vehicle lacks proper care.

3. Absence of explanation – If an explanation of the conduce can be made then either it will
show the defendant is not liable or if it shows he or she is potentially negligent the plaintiff will
have to go on to prove that negligence as the maxim will not apply. Barkway v South Walws
Transport (1950) B was killed when a bus veered across the road and fell over an embankment.
B tried to raise the inference of res ipsa loquitur however the reason for the accident was
punctured tyre and therefore the maxim did not apply.

Damage
The plaintiff must show that he or she suffered damage which has been caused by the breach of
duty of care such damage not being too remote.

Causation
The breach of duty must have caused the breach of duty of care. To assess whether it did not the
most common test is the “but for” test i.e. the damage would not have occurred “but for” the
defendant’s breach of duty of care.

Barnett v Kensington HMC (1969)

B, a night watchman, went to hospital complaining of vomiting. The duty doctor did not examine
him and sent him home telling him to see his doctor in the morning. B died of arsenical
poisoning.

Held: Although the doctor had been negligent, ‘B’ had not died as a result of that negligence. B
would have died in any event whether he had been examined or not.

Culter v Vauxhall (1971)

The plaintiff grazed his ankle due to the negligence of the defendants. This caused an ulcer
which caused a varicose vein to form which the plaintiff already had a propensity for which led
to an operation. The plaintiff claimed for both the injury to his ankle and for the varicose vein
and operation.

Held: He was successful in claiming for the accident but not for the varicose vein and operation
because he already had a propensity for the condition and so the breach of duty of care had not
caused the operation. [Lord Russell dissented saying that the operation had become a certainty
because of the accident whereas otherwise it would only have been a probability i.e. but for the
accident it might never have to be done.]
Remoteness
Theoretically the consequences of any conduct may be endless. The judiciary have sough to limit
the liability of a defendant to reasonable bounds. Several different tests have been put forward
but each seeks to have the same effect.

1. All Direct Consequences Test

A defendant is liable for all the direct consequences of his or her actions suffered by the plaintiff
whether a reasonable person would have foreseen them or not.

Re Polemis (191)
Stevedores were employed by the charterers of a ship to unload it. They negligently dropped a
plank into the hold which caused a spark which caused some chemicals to ignite which caused
the ship to be totally destroyed (£200,000)

Held: even though they could not have foreseen that the ship would be destroyed by the
negligently dropping of a plank they were found to be liable for all the direct consequences
which included the loss of the ship.

2. Foresee Ability Test

This test is now preferred. A person is liable for the consequences of his or her negligent actions
suffered by the plaintiff so far as those consequences are reasonably foreseeable. (same test as
for duty of care)

Wagon Mound
The Wagon Mound was moored at a wharf in Sidney Harbour. Due to the negligence of the
owners oil split onto the water was mixed with flotsam and floated around another wharf where a
ship was being repaired by welding. The oil caused the flotsam to catch fire and set light to the
wharf. The owner of the wharf claimed for :

- damage to the slipways due to the spillage of oil; and

- damage by fire.

Held: the foresee ability test was applied and it was held that the damage to the slipways was
foreseeable and but the damage by fire was not.

Hughes v Lord Advocate (1963)

The post office left and inspection chamber open all night surrounded by paraffin lights. A boy
aged 8 picked up one of the lamps and fell with it into the inspection chamber causing an
explosion and burning the child.

Held: the Post office was liable for the consequences of their negligence. It should have been
foresee able that a child would be injured by burning due to the presence of the lamps. The fact
that it occurred in a different way than might be expected does not effect the liability. Provided
an injury was foresee able and actually occurred and that the injury was of the same kind as that
which should have been foreseen them the defendant will be liable.

Intended Consequences
Scott v Shepherd (1773)
The defendant negligently threw a lighted fire work which blinded the plaintiff.

Held: The defendant intended to cause damage and injury and therefore was liable for the
damage.

Unintended Consequences
The defendant must take a victim as he or she finds him or her. The defendant cannot seek to
reduce the level of damages by claiming that the injury would have been less or non-existent in
respect of a different defendant.

Smith v Leach Brain (1962)

Molten metal negligently splashed the plaintiff’s lip which caused a cancer which the plaintiff
had a propensity for.

Held: The defendants were liable for all the damage that was caused.

Contributory Negligence
Before 1945 contributory negligence was a complete defence. It could be shown that a person
had contributed to his or her injuries or damage caused in part by the carelessness of another then
no claim could be made against that other.

In 1945 the Law Reform (Contributory Negligence) Act allowed liability to be apportioned so
that the plaintiff’s damages would be reduced by the amount that the plaintiff contributed to the
damage or injury.

S 1 Where any person suffers damage as a result partly of his own fault and partly of the fault of
any other person or persons, a claim in respect of that damages shall not be defeated by reason of
the fault of the person suffering the damages but the damages shall be reduced to such extent that
the court thinks just and equitable having regard to the claimants share in the responsibility for
the damage.

1. There is no age under which a child cannot be found to have been contributorily negligent.
However the expected knowledge and awareness of a child of a particular age will be considered.

Yachuk v Blaise (1949)

A 9 year old boy bought petrol saying that it was for his parents whereas in fact he was going to
play with it. He was badly burnt and the seller was sued for the negligently selling the petrol to
him.

Held: The seller alone was liable. The child was not contributory negligent because he could to
be expected to know the properties of petrol.

2. A more lenient view of contributory negligence is taken in the context of a factory where
repetition, noise confusion fatigue and pre-occupation dulls the employee’s sense of danger.

3. If a plaintiff in the agony of the moment tries to save him or herself from injury caused by the
defendant’s negligence and in the event causes him or herself greater injury he or she will not be
contributorily negligent.

Jones v Boyce (1816)

The plaintiff was a passenger on the top of the defendant’s coach. Due to the breaking of a
defective rein the coach was in danger of overturning. The plaintiff therefore jumped from the
coach and broke his leg. In the event the coach was not upset.

Held: The plaintiff was successful claiming for his injuries caused by the negligence of the
defendant who allowed the defective rein to be used. The plaintiff was said to have acted as a
reasonable and prudent although he had selected the more dangerous of the two alternatives i.e.
to jump from the coach instead to staying where he was. He was entitled to do so in the agony of
the moment and was able to recover damages.

Sayers v Harlow UDC (1958)

S went to a public toilet whilst waiting for her bus. The door lock stuck due to the negligence of
the defendants and S was left with a choice of either just shouting for help or attempting to
escape. After shouting for a while she attempted to escape. She climbed onto the toilet seat and
was intending to climb over the cubicle door. Unfortunately the door was too high and she put
her foot on the toilet roll holder which gave way causing her to fall and injure herself.
Held: She was successful in suing for her injuries as it was considered reasonable for her to
attempt to escape. However her damages were reduced because it was thought she contributed to
her injuries by trying to steady herself on the toilet roll holder which clearly was liable to move.

VICARIOUS LIABILITY
VICARIOUS LIABILITY ON THE GROUND OF RELATIONSHIP

The general principle of law is that person is liable for his own-acts and not for the acts of
others. But in certain kinds of cases a person is made liable for the act of another on account of
the standing in a particular relationship with that person. This liability is called vicarious
liability. This kind of liability existed in ancient times also but the grounds of liability were
entirely different from what it is in modern times.

The principle of vicarious liability in ancient times was that a person must be made
answerable for the acts of the person who are akin to him. With the onward march of time this
principle of liability underwent a great change, and in modem times, this liability exists in a
limited kind of cases. Now a person is made liable on the grounds of expediency and policy, and
not on any other ground.

Normally, it is tire wrong-doer himself who is held liable for the act. But there may be
certain circumstances when the liability of the wrongdoer is imposed on some other person than
the wrongdoer himself. That is, some other person is made liable for the wrongful acts of the
wrongdoer.

For example, a master is liable for the Wrongful acts of his servant done in the scope of
employment. Likewise a principal is liable for the wrongful acts of his agent done in the ordinary
course of business or a guardian is liable for the wrongful acts of his words. The doctrine of
vicarious liability is based n the principle of "respondent superior".

According to SALMOND the rational basis of the rule of vicarious liability, of which the
master-servant liability serves as the best illustration, is mainly evidential.

To quote his own words of SALMOND, “there are such immense difficulties in the way of
proving actual authority, that unless some such conclusive presumption is drawn, masters
would make tools of their servants to commit great wrongs. A word, a gesture or a tone from
the master will be sufficient to induce a servant to commit greatest wrongs, yet who could
prove such a measure of complexity".

CRIMINAL LAW
In criminal law the general principle is that a person is not liable for the act of another. A
master is not criminally liability for the unauthorized acts of his servant. However, there are
certain exceptions to this rule. The legislature may prohibit an act or enforce a duty in such terms
as to make the prohibitions or the duty absolute; in that case the principal is liable if the act is in
fact done by his servant. Thus a statue may impose criminal liability upon the master as regards
the acts or the omissions of his servants. A master or owner is liable in case of public nuisance
done by his agent. Similarly, if a principal neglects the performance of an act, “which is likely to
cause danger to other, and entrusts it to unskillful hands, he will be in certain cases criminally
liable. (Indian Penal Code, 1860, Sections—154 and 155)

The principle of vicarious liability has no application in criminal law for it would be against
the public policy to punish a person for the crime committed by someone else. However, there
are three exceptions to this general rule:-

(1) In many cases the law imposes upon the owner of a property the obligation of managing
it so that it does not injure anyone else or the public in general. In such cases if a breach
of obligation is committed the owner cannot escape criminal liability by delegating the
management to someone else (Section 154 and 155 IPC provide punishment by way of
penalty upon the owner of land in certain cases where breach of duty is committed by
his agent or manager)

For example, the proprietor of a newspaper would be liable and punished for a libel
“defamation" published in it though he was living at a distance and know nothing about the libel
until he read the newspaper.

(2) In case of public nuisance under Section 268 IPC, also a master is held vicariously
liable for the act of public nuisance committed by his servants.

(3) Under the licensing acts the professionals holding licenses would be vicariously
punished for the acts of violations committed by their servants. The same rule shall be
applicable in respect of vicarious price controlling laws. A master of a business firm
could be held liable if his servant committed an act in violation of any provision of the
statutory law.

CIVIL LAW
Vicarious liability exists mainly in civil law. It is recognized in civil law generally in two
kinds of cases.

(1) A master is liable for all tortuous acts of his servants done in the course of his
employment.

(2) The representative of the dead person is, in certain cases, liable for the acts of the
deceased.

(1) Master’s Liability for the Acts of his Servant

Most of the jurists are of the view that the origin of the liability of the master for the acts
of his servant is in the old institution of slavery.
 HOLMES tracing the development of the liability says that in the beginning it was the
revenge that was the motive of the punishment. It was vengeance on the immediate offender. If a
slave committed a wrong, the master of the slave had to surrender him to the person who had
suffered the wrong. Even the inanimate things were surrendered or forfeited if any injury to a
person too place on account of them. Later on, instead of surrendering the slave some
compensation was paid to the person suffering the injury by the master of the slave or the thing.
Thus the master paid for the blood feud for taking back the salve or the thing. In other words, the
surrender was substituted by compensation. Gradually a practice developed that the master was
also made a party when an- action was brought against his servant for his wrongful act. It was
only as a matter of convenience to establish the liability of the master and to realize the money
from him. Though in course of time the institution of slavery was abolished and the nature of the
liability also changed, a master continued to remain liable for the wrongful acts of his servants
on the same analogy.

The modern jurists are of the view that the liability of the master in modem times is not linked
with the old principle of liability. The liability of the master for the acts of his servants in modern
times is of recent origin and growth. The liability of the master for acts of his servants is based
on a legal presumption which later on, became conclusive that the acts done by a servant in and
about his master’s business are under the express or implied authority from the master.
Therefore, these acts are the acts of the master.

It is this presumption which has appeared in the shape of the employer’s liability. It has been
embodied in various statues. The reasons of making the master liable are mainly two:-

(A) Evidential Importance

To prove in every case of this nature that the servant acted under the actual authority of his
master would involve a lot of difficulties and in most cases the master will escape the liability on
the ground that there was no formal authority given to the servant.

Secondly, to make masters liable for the acts of their servants makes them to remain
vigilant and caution in respect of the acts of their employers.

(B) The Second Reason for making the Master Liable in his
Pecuniary Position
The master is in a financial position to redress the injury caused by the acts of their servants.
It is a principle of justice that one who is in a position to make good the loss caused by him or on
his behalf should not escape the liability of the paying it delegating the exercise of it to the
agents from whom no redress can be obtained. If a matter keeps a servant at a place where he can
cause mischief the matter must be answerable for that.

(2) Representatives of a Dead Man are in certain cases liable for the
Acts of the Deceased
 This is a second form of vicarious liability. As pointed out earlier, there is no vicarious
liability in criminal law, so the representatives of a dead man are not liable for the criminal acts
done by him before his death. So far s the civil liabilities of the deceased are concerned most of
them are transferred upon his representatives.

For example, a debt or damages for which a deceased was liable will have to be paid by his
representatives. Whether the representatives of a deceased should be liable or not in cases of the
penal redress which was to be made by the deceased in a question on which there has been a
difference of opinion. The penal redress partakes the nature of punishment and compensation
both.

According to the principle, the former liability should extinguish with the death of the
wrongdoer, but....the latter liability survives him.

The main problem was how to transfer this liability on the representative.

The older view was that the action for the penal redress dies with the wrongdoer and his
representatives cannot be held liable for it. This view is no longer accepted.

In modern times, the representatives of a deceased are liable in case of penal redress
also and in many legal systems it has been embodied in a statute.

It is considered that although liability to afford redress ought to depend in the point of
origin upon the requirements of punishment, it should depend in point of the continuance upon
those of compensation1.

Representative are held liable on the ground that when a valuable right of a person
"against a wrong has been committed" has come into existence, he should not be disappointed.
A person who has succeeded to the estate of the deceased must pay and he is liable to pay it on
the same ground on which he is liable to pay a debt of the deceased.

Secondly, holding representatives liable will work as a deterrent. The person who
commits a wrong shall be made to think that in any case he shall have to redress the wrong and
after his death his representatives shall be liable. It will deter a person from doing a wrong of this
kind.

The principle of vicarious liability also extends to living representatives for the acts of the
dead in certain cases. This is enshrined in the Latin maxim- “action personalis maritur
cum persona” which means that an action dies with the death of the person. Therefore, all
personal actions such as assault, defamation, trespass, etc. come to an end with the death of a
person. But in cases of unjust enrichment, the heirs or successors of the deceased shall be
vicariously liable for the wrongful acts of the dead man.

THE MEASURE OF LIABILITY

 The nature, the kinds and the conditions of liability have been discussed. Now a practical
question remains to be answered, e.g. “what is the measure of liability?"

In other words, it means that what are the consideration sin determining the punishment
for a criminal wrong and what are the consideration in determining the amount payable to the
plaintiff by the defendant as redress for a civil wrong. The principle to determine the punishment
in the case of a crime, and the damages of compensation in the case of a civil wrong are entirely
different from each other. Here they shall be discussed separately.

THE MEASURE OF CRIMINAL LIABILTY

DEPENDS UPON THE THEORY OF PUNISHMENT, ON THE CONCEPT

OF THE STATE

The measure of the criminal liability is different in different legal systems. The measure of the
liability is determined on various considerations:

(a) First, the measure of liability in a particular society depends on the theory or, in other
words the aim of the punishment, recognized by the society. If the punishment is for the purposes
of the retribution, the law will look into the motive of the wrongdoer and would take it as the
chief measure of the liability. If the purpose of punishment is to reform the wrongdoer, the
measure of the liability would be the character of the wrongdoer and so on:

(b) Second, the measure of the liability depends upon the concept of the state and the kind of
the government in a particular society. In Nazi Germany to be a Jew was the gravest offence, and
similarly to speak and to act against the wishes of the dictator was a very serious crime. In a
socialist state the grave offences are those that undermine the interest of the society.

(c) Third, the measures of the liability also on the values which are recognized n a particular
society. In India, where sex morality is considered to be a great virtue the punishment for sexual
offences has been very severe since early time, but in England, where the sex morality is not the
same as it is in India, adultery is not an offence and in some cases seduction is a civil wrong and
the wrongdoer is liable only for compensation.

MODERN PRINCIPLE
Thus, in modem times the principle is that all the offences do not involve equal guilt on
the part of the wrongdoer and all the offender are not guilty for the same offence. This being so,
the punishment of all kinds of offences and for all wrongdoers having committed the same
offence cannot be uniform. The aim of the law is to bring the maximum good at the costs of the
maximum sacrifice, therefore, in awarding the punishment it proceeds on foe same line. If the
punishment is same for assault and murder, a person who intends to cause injury to his enemy
would prefer to cause the later kind of the injury.
 Thus the uniform punishment for every offence would bring more evil than good.
Similarly, if the punishment is very severe such as hanging for petty thefts it may bring down the
crimes, but the "evil so prevented would be far out weighted by that which the law would be
called on to inflict in the cases in which its threats proved unavailing”. Therefore, the different
offences have different punishments and secondly the judge is left with ample direction in
awarding punishments. The law has generally fixed the maximum punishment that can be
awarded in a particular offence and the judge awards the punishment within the limit taking into
consideration the nature of the guilt, and the character of the offender, etc.

In modern times, thought there is a great theoretical support of the reformative theory of
punishment in practice, the punishment to some extent, serves the retributive purpose and in the
most part the deterrent purposed. Therefore, the factors which are taken into consideration in
determining the liability are the following.

(1) Motive for the commission of the offence.

(2) The magnitude of the offence

(3) The character of the offender

(1) Motive for the Commission of the Offence.

The motive of the offence is a very important factor in determining the liability. If the
motive to commit the offence is very strong, the punishment would be severe, because the
punishment aims at counteracting the motives which made the offender to commit the crime.

(2)The Magnitude of the Offence

The other things being equal, if an offence brings greater evil consequences or has greater
evil tendencies the punishment should be severe. Some criticize this view and say that the
liability should not be determined on the basis of the evil caused to a person, but it should be
determined on the basis of the benefit derived by the offender by his wrongful act. It is submitted
that the punishment on the basis of the magnitude of the offence greatly helps in preventing
offences, and where the offender is to choose one wrongful act out of many of the same nature,
he would prefer to commit one for which there is lesser punishment. Thus the severe punishment
for grave offences deters the wrongdoer from committing it.

(3) The Character of the Offender

The character of the offender is also a factor in the measure liability, in other words, it is
a consideration in determining the punishment. The offenders who have become habitual and
have undergone punishment, to them punishment loses much of its rigor and light punishment
does not deter them. Therefore, they are given severe punishments.

SOME OTHER FACTORS

 There are some other factors also which are taken into consideration in determining the
punishment. One such factor is the nature of the offence. The offences which are inhuman and
heinous deserve severe punishment. The sensibility of the offender is also taken into
consideration. A simple censor or rebuke might hurt the sensibility of a wrongdoer who did a
wrong casually in the heat of a passion or anger and he may not commit the offence again, but to
a habitual offender the censor or rebuke will have no effect, therefore, he should be given a
severe punishment for the same offence.

THE MEASURE OF CIVIL LIABILITY

In the case of a civil wrong, motive is irrelevant. It is only the magnitude of the offence
that determines the liability. The liability of the offender is not measured by the consequences
which he meant to ensure, but by the evil which he succeeded in doing. The liability consists of
the compulsory compensation to given to the injured person and that is to be considered as a
punishment for the offence. In penal redress, compensation in money is given to the injured
person and punishment is imposed upon the offender. A rational system of law must combine the
advantages of penal redress with a coordinate system of criminal liability. The reason is that
penal redress alone is not considered to be sufficient.

The purpose of civil liability is compensation to the injured parts. The quantum of
damages is, however, dependent on the actual loss suffered by the plaintiff. It must be noted that
neither the character nor motive (By way of exception, motive is relevant in only a few civil
wrongs such as defamation, conspiracy, deceit, malicious prosecution, etc. the reason being that
they are crime also and a crime requires "mens rea") of the defendant are relevant in
determining he liability in civil cases. Law takes into consideration only the actual consequences
that follow a wrongful act and not the probable or intended ones. However, in certain cases
higher damages may be awarded where defendant’s conduct has aggravated the plaintiff’s
sufferings. In others higher damages may be justified in view of the defendant’s behavior. Thus,
the court would award higher damages to a woman plaintiff in a defamation case as compared
with the male plaintiff because law expects greater respect for woman in the society.

It would thus be seen that liability arises out of the legal sanctions provided by the state.
It is because of these legal sanctions that the laws seeks to protest the interest of the individuals
in the society. These sanctions are an effective measure to ensure performance of duties by
persons and refrain from committing breaches thereof.

6. LAW AND JUSTICE

Administration of Justice
 The two most essential functions of a State are- War and Administration of Justice. If the
state fail to fulfilled these two objective it cannot be called the rightly the State. Administration
of justice implies the peace and order with in apolitical community by means of physical force of
the State.

Lord Bryce rightly said that- there can be no better test of the excellence of a Government
than the efficiency of its judicial administration.

Concept of Justice-
The concept of justice becomes more conspicuous with the growth of State which ensures
justice to it people through the instrumentality of law. The essence of legal justice lies in
ensuring uniformity and certainty of law and at the same time ensuring that rights and duties are
duly respected by the people.

Importance of Administrative Justice-

By nature man is the dominate nature and wants to enjoy his liberty, liberty which consist
in the power to do everything that does not injure another. Thus liberty implies freedom of action
so far permitted by law. It therefore, follows that legal liberty depends on the existence of the
authority of the state.

Origin of Administrative Justice: The administration of justice evolve in civilized

society in the stages-

First Stage- Primitive Society- when the society was primitive and private vengeance
(revenge) and self help.

Second Stage- Emergence of State and its function were only persuasive (influential) in
nature, and do not have the power to punish the wrong doer.

Third Stage- State exerted its authority and capable to punish the wrong doer.

Advantage and Disadvantage of Administrative Justice

--Merit- Uniformity, certainty, impartiality and equal.

-Demerit- Rigidity, formality, and complexity of law.

Kind of Administrative Justice-

There are two kinds of Administrative justice-
1. Civil – it is also called the private wrong. It is violations of civil or legal rights of
individuals called civil injuries. The object of it is enforcement of rights.

2. Criminal- it is also called the public wrong. It is the violations of public rights and duties
which affect community as a whole and are called crime or misdemeanours, and punishable by
State. The object of it is to punish the offender.

Theories of Punishments-
The theories of punishments are changing according to the social norms.

Deterrent Theory-
The main object of punishment is to deter other from committing crimes. As Salmond rightly
stated- the chief aim of law of crime is to make the evil doer an example and warning to all that
are like minded with him. This point clearly shows that punishment is a means of attaining social
security as it seeks to protect the society by deterring potential offenders.

Salmond says- offences are committed by reason of a conflict of interest of the offender and
the society. Punishment prevents such offences by destroying the conflict of interest by making
acts which are injurious to other as injurious to dower himself.

This theory there for justifies exemplary punishment because it not only dissuades the offender
from repeating the crime but also deter other from indulging into such criminal activities.

Manu the greater law commentator of Ancient time also supported this theory. He treated
punishment as dharma, as the source of righteousness because people are refrained from
committing wrongful act through the fear of punishment. Most penal system made use of
deterrent theory because of their sentencing mechanism till early nineteenth century.

The advocates of deterrent punishment hold that fear in the mind of preparation of crime and the
consequences that could befall on him dissuade him from committing the crime.

Criticism-
Holmes against this theory- he says that it was immoral in as much as it lays down no definite
measure of punishment except the subjective opinion of the judge.

It has proved to be ineffective in restricting crimes. Even during the reign of Queen
Elizabeth who was a staunch supporter of deterrent theory and awarded severest punishment to
smallest offences.

Second hardliner criminal use to it, and after the completion of their prisoner life.
It may be justifiable when the offence is deliberate, pre planned and barbaric and a menace to the
safety and security of the society. Particularly anti-national violence.

Retributive Theory
In primitive societies punishment was mainly retributive. It was regarded as an end in
itself. This theory considers that – evil should be returned for evil without any regard to
consequences. This theory is appraised by the rule of natural justice which is expressed by the
maxim-eye for an eye and tooth for tooth.

Philosophy-the theory therefore emphasizes that the pain to be inflicted on the offender by
way of punishment must outweigh the pleasure derived by him forms his criminal act.
Punishment is an expression of society’s disapprobation for the offender’s criminal act.

Criticism:
It is also questionable that –Whether retribution can be justified on the ground of social
policy? This theory owes its origin in the crude animal instinct of individual or group to retaliate
when hurt and therefore, its approach to offender is vindictive (cruel) and out of tune with the
modern reformative punishments.

Supportive View: Those who supportive of this theory proclaimed that – it is the
appropriate moral response to criminal acts because the perpetrators of crime deserve to be
punished.

In this view they share the same view of deterrent theory which also defends punishment as
morally just and that the severity of the punishment inflicted upon the offender should be in
proposition to the gravity of the crime for which he has been found guilty. It supports bodily pain
and suffering imprisonments deportation and even the death sentence.

The equation of this theory supporter = Guilty + Punishment = Innocence

Salmond also said- revenge is the right of the injured person.

Preventive Theory
Preventing theory enrich the idea of – preventive repetition of crime by disabling the
offender through measures such as imprisonment, forfeiture, death punishment, suspension
of licenses. Etc.

Paton- this theory seeks to prevent the prisoner from committing crime by disabling him. This
theory does not lay much emphasis on the motive of the wrongdoer but seeks to take away his
physical power to commit the offence. It presupposes that need for punishment for crime arises
simply out of social necessities. In Punishing criminal the society protect itself against the anti
social acts which danger in social order.

For example when a person stick a notice – trespasser will be prosecuted” he does not want any
actual trespasser and to have the trouble and expense of setting the law in motion against him. He
hopes that the threat will render any such action unnecessary, his aim is not to punish for trespass
but to prevent it.

Thus the real object of the penal law is to make the threat generally known rather than putting it
occasionally into execution. This makes the prevention theory realistic and humane.

According to this murderers are hanged not merely to deter others from meeting similar end but
to eliminate such dreadful offenders form the society.

Reformative Theory:
This theory emphasizes on reformation of offenders through the method of
individualization. It is based on the humanistic principle that even if an offender commits a
crime, he does not cease to be a human being. Therefore an effort should be made to reform him
during the period of his incarceration (imprisonment).

While awarding the punishment the judge should consider his age, fact and circumstances under
which he committed the crime.

As compare to deterrent theory this theory take a sociological view against the offender.
It aim of this theory is to socialization of the offender so that the factors which motivated him to
commit the crime are eliminated and he gets chance of leading a normal life in the society.

It must be noted that this theory shows a radical (fundamental) departure from the earlier theories
and seeks to bring about a positive change in the attitude of the offender so as to rehabilitate him
as a law-abiding member of society.

In this theory punishment use as a measure to reclaim (get back) the offender and not to torture
him. It condemns all kinds of corporal punishments the major thrust of the reformist theory is
rehabilitation of inmates in penal institution so that they are transformed into law abiding citizen.

It suggested that instead of prisoner being allowed to idle in jail, they should be properly taught,
educates and trained so as to adjust themselves to normal life in the community after the
imprisonment. This purpose may be achieved through the agencies of parole and probation
which have been accepted as modern techniques of reforming the offender all around the world.

Punishment is only justifiable if it looks to the future and not the past. It should not be regarded
as setting an old account but rather opening a new account. Prisonment is not meant for the
isolation of offender from eliminating the society, but to bring about a change in their mental
attitude through effective measure of reformative during the term of their sentence.
The modern trend in favor of reformative justice but there is strong feeling that the
method should not be stretched too far. This method has proved useful in case of juvenile
delinquents (one who fails to do that which is required by law or by duty when such failure is
minor in nature). First offender and women seen to be response favorable. But hardened anti
professional offenders hardly response favorably in the method of punishment, the reason is
the crime is not the bad habit for them but the inherent nature of their. Deterrent punishment
is the only alternative for such type of criminal.

The philosophy behind this theory is – punishment should not be regarded as an end itself
but only as a means, the end being the social security, at rehabilitation of offender in the society.

The focal point of reformists view is that an effort should be made to restore the offender
to society as a good and law abiding citizen. The theory believes that it perception of doubt
characters are given proper education and training in such a manner as enable them to earn their
livelihood by honest means, they would shun adopting for methods for their subsistence

Conclusion –
The deterrent theory, retributive, preventive and reformative theories of punishment has
their own merits and demerits but unfortunately none of them take notice of compensation which
should be paid to the victim of the crime. The modern view is that punishment must not be
merely to prevent further occurrence of the crime but it must seek to compensate the victim of
crime.

It is also be noted that no single theory would serve the interest of criminal justice
administration. Undoubtedly, reformative theory must be given due importance but at the same
time the deterrent and preventive aspect of punishment must also not be completely ignored.
Thus reformative can be use as a general method of treatment of offenders but those who do not
response favorably to the corrective method of treating they must be treated severely
punishment. The institutional method of punishment should be given regard rather than
conventional methods.

7. Concept of State and

Sovereignty

The concept of sovereignty has been evolving since time immemorial. Since the World
Wars, countries have stepped up their sensibilities towards their territorial limits. The recent
South China Sea dispute highlighted how territoriality has extended itself to water bodies as well
as air space. This article discusses the political theories explaining sovereignty. It also delves
into aspects such as de jure and de facto control, with special emphasis on critically evaluating
Austin’s theory.

Sovereignty is a complex concept, hard to characterize in an uncontroversial manner. The

core idea of sovereignty is that of an ultimate source of political power or authority in a realm
(see Morris 1998, Ch. 7). Several classical utilitarian thinkers were interested in the concept.
John Austin made it the center piece of his jurisprudence, influenced by Thomas Hobbes
and Jeremy Bentham. The latter’s writings on the subject turn out to be particularly
insightful and relevant to contemporary interests in constitutional or limited government.
The notion of sovereignty is mostly modern, with roots in classical Rome. The notion
was developed by Jean Bodin, Hobbes, Jean-Jacques Rousseau, among others, and
deployed to make sense of the authority and power claimed by early modern sovereigns and
states. In late medieval and early modern times, powerful monarchs and emerging states faced a
number of rivals: city-republics, leagues of cities, empires, the Church, and various remnants of
feudalism. These forms of political organization lacked two features of modern governance that
we take for granted: exclusivity of rule (a “closed” system of governance) and territoriality.
Modern states emerge only when their claims (or that of their rulers) to govern a determinate
territory alone, exclusively, are recognized. A determinate realm, with relatively unambiguous
geographical boundaries, and not subject to rival powers, is a prerequisite of the modern state
and is largely missing in early forms of political organization. A modern “sovereign” is the
unique ruler of such a realm, one whose sphere of authority encompasses the whole realm
without overlapping that of any other ruler. It – initially the monarch, later the state, and then
“the people” – rules without superiors. As the historian F.H. Hinsley says, “at the beginning,
the idea of sovereignty was the idea that there is a final and absolute political authority in the
political community... and no final and absolute authority exists elsewhere” (pp.25-26). With the
development of the concept of sovereignty, we have the main elements of what is now called
“the state system”: independent states and “international relations” (and “international law”).
In early modern Europe, sovereignty was the power that monarchs claimed in their
battles against lords and princes on the one hand and popes on the other. Their realm (or
kingdom) was theirs, and their authority over it was to be shared with no one. The history is
complex and cannot be traced here. But it is useful to appreciate the appeal of this conception of
political governance as territorial, unitary, and to some extent absolute. In the ferocious battles
fought by European monarchs against the limits imposed on them by imperial and papal
authorities and against the independent powers of feudal lords, self-governing towns, and
autonomous guilds, a modern ideal of unitary and absolute political power emerges and finds
expression in the notion of sovereignty. Today it is customary to distinguish between “internal”
and “external” sovereignty, the first pertaining to the structure or constitution of a state, the
second to the relations between states. Internal sovereignty thus conceived has to do with the
state’s authority over its subjects, while the second notion refers to the independence or
autonomy of states. The two remain connected: if a state or its people are sovereign over their
realm (internal sovereignty), then outsiders are constrained from “interfering”. Internal
sovereignty gives states or peoples a certain autonomy or liberty in their “international relations”
(external sovereignty).
The core notion of sovereignty – the ultimate source of political power or
authority within a realm – requires unpacking. Sovereignty is associated with modern kingdoms
and states; the “realms” in question are the well-defined territories of such states. The relevant
notion of political power or authority is more controversial. We shall focus on authority, which
we can think of normatively or non-normatively, the latter being a kind of power attributed or
conferred to leaders or institutions. But the normative notion seems primary, presupposed by the
non-normative one (something has authority if people treat it as authoritative, but what is it to
treat it thus?). We might say that something is an authority only if its directives are (and are
intended to be) action-guiding. Laws prohibiting certain behavior, for instance, are meant to
guide us. The key to the notion of sovereignty lies in the idea of ultimate authority. What is it for
a source of authority to be ultimate? An authority may be ultimate if it is the highest in a
hierarchy of authorities. Such an authority may also be final: there is no further appeal after it has
spoken (it has “the last word”). Lastly, an ultimate authority may be one which is supreme in a
particular sense: it has authority over all other authorities in its realm. The state’s authority is
sovereign in this sense; it takes precedence over competing authorities (e.g., corporate, syndicate,
church, conscience). Summarizing, then, sovereignty is the highest, final, and supreme
political authority within a modern territorial realm (see Morris 1998, Ch. 7).
William Blackstone, in his Commentaries on the Laws of England (1765-69),
famously argued that “...there is and must be in all of [the several forms of government] a
supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the
rights of sovereignty, reside” (p.36). Blackstone’s views proved to be very influential in Britain
as well as in late eighteenth century revolutionary America. The English jurist John Austin
accepted the idea that there must be a sovereign in every political society. His positivist account
in The Province of Jurisprudence Determined (1832) made law the creation of a sovereign
person or body.
We are accustomed to reading Austin back into Hobbes and Bentham, but this is
unfortunate as both differed from Austin in important ways and were more subtle theorists.
Bentham in particular was critical of Blackstone’s idea that government’s authority “stands
unlimited so much as by convention; ... it would be saying that there is no such thing as
government in the German Empire; nor in the Dutch Provinces; nor in the Swiss Cantons; nor
was of old in the Achaean league.” (A Fragment on Government, p.489) Unlike Austin,
Bentham did not have to tie himself into knots to find a sovereign in federalist states like the
new American one (see Austin, Lect. VI).
Bentham and Austin both make “habits of obedience”, a distinctively non-normative
notion, and central to understanding politics and law. Bentham thinks a political society exists
when “a number of persons (whom we may style subjects) are supposed to be in the habit of
paying obedience to a person, or an assemblage of persons, of a known and certain description
(whom we may call governor or governors)” (p.428). But, unlike Austin, he sees how habits and
dispositions of obedience can limit a sovereign body: dispositions to obey can be limited,
“beyond them the subject is no more prepared to obey the governing body of his own state, than
that of any other.” (p.489; see also Burns, 1973) This view develops in Bentham’s later work
into a popular conception of sovereignty. In the Constitutional Code, written in the 1820s,
Bentham concludes that the powers of government owe their existence to the Constitutive power
which “resides in the whole body of active citizens throughout the state.” (Works, vol. 9, p.96).
“For the happiness of the people, every security that can be given is reducible to this one – the
supremacy, or say the sovereignty, of the people: the sovereignty of the people, not nominal
merely, but effective, and brought into action, or rather capable of being brought into action, as
frequently as the exigency of the case requires, and the nature of the case renders possible.”
(Works, vol. ch XVI, p.123.) In this work the interesting move that Bentham makes is to
conceptualize the various powers of government – the legislative, administrative, and judicial –
as the Operative power, itself a creation of the Constitutive power. Bentham transfer sovereignty
to “We, the People” and is so doing transforms the Hobbist understanding of sovereignty as a
power to command. (See Burns 1973)
Today few wish to understand sovereignty as absolute or unconstrained; it is now widely
thought that sovereignty can and should be limited. We now also think that one of the most
effective institutional means of limiting the power and authority of states is to divide sovereignty
amongst a plurality of agents or institutions. Contra Hobbes and others, republican and
democrats have stressed the value and importance of divisions of power within states;
indivisibility is no longer assumed to be essential to sovereignty. Our notion tends to be one of
divisible, limited sovereignty. But it is worth noting that to attribute even limited sovereignty to a
monarch or state may be to grant it considerable power. For the sovereign retains the power to
judge the nature of the limits to its authority, and its judgment here is final and supreme. Even if
sovereignty is not absolute, it remains formidable.
While sovereignty is now often understood to be a defining attribute of states, it was
initially attributed to, or claimed by, monarchs. In Britain it became customary to attribute
sovereignty to the trinity of the monarch and the two houses of Parliament. Rousseau, Bentham,
and some of the founders of the American system attributed sovereignty to the people, and the
French Déclaration des droits de l’homme et du citoyen of 1789 claims sovereignty for the
“nation”. The doctrine of “popular sovereignty” – the idea that peoples are the rightful bearers of
sovereignty – is especially influential in the American and French political traditions and is held
by many to be the foundation of modern democracy.
It is not clear, however, that we should wish to attribute (limited) sovereignty either to
states or to peoples. We may think, for instance, that the authority of conscience, church,
community, or international law is not always pre-empted by that of the state or the people when
the two conflict. Justice and in particular the rights of humans or persons may be thought to be
standards that have supremacy over others, contrary to the claims of sovereign states or peoples.
It is not easy to adapt this complex early modern concept to our contemporary conceptions of
politics. Many have thus thought that it might be best to do without the notion of sovereignty,
however important it has been to the development of modern politics. Certainly, its usefulness in
contemporary legal theory or jurisprudence is doubtful (Hart 1994, Chs. II-IV, X). Adapting our
constitutional states and democratic institutions to new forms of international cooperation and
law may perhaps best be done without the notion of sovereignty.

Meaning of Sovereignty

The word “sovereignty” is derived from the Latin word “superannus” meaning
supreme. It means the supreme power of the state over all individuals and associations within its
own territorial limits. This is internal sovereignty of the state whereby the state is the final
authority to make laws, issue commands and take political decisions which are binding upon all
individuals and associations within its jurisdiction. It has the power to command obedience to its
laws and commands and to punish the offenders who violate the same.

At the same time, sovereignty also involves the idea of freedom from foreign control, i.e.,
the independence of the state from the control or interference of any other state in the conduct of
its international relations. This is what is called external sovereignty whereby a state has the
power to independently determine its own foreign policy and has the right to declare war and
make peace. At the same time, external sovereignty implies that each state, big or small, by
virtue of its sovereign status is equal to every other state. It can command no other state and it
cannot itself be commanded by any other state.

Accordingly, sovereignty of the state has two aspects, namely, internal and external
sovereignty.

Sovereignty is an essential element of the state and with every change in the conception
of the state, the concept of sovereignty has also varied from age to age. The Greek philosopher
Aristotle spoke of the “supreme power” of the state. The Roman jurists were also familiar with
the notion. During the Middle Ages, the idea of sovereignty was associated either with the
authority of the king or with the Pope.

Characteristics of Sovereignty
There are many characteristics or attributes of sovereignty. These are discussed below:

 Absoluteness: Sovereignty is regarded as absolute. This means that neither within

the state nor outside it, is there any power which is superior to the sovereign. The will of
the sovereign reigns supreme in the state. His obedience to customs of the state or
international law is based on his own free will.
 Permanence: The sovereignty of a state is permanent. Sovereignty lasts as long as
an independent state lasts. The death of a king or president or the overthrow of the
 government does not mean the destruction of sovereignty as the ruler exercises sovereign
power on behalf of the state and therefore, sovereignty lasts as long as the state lasts.
 Universality: Sovereignty is a universal, all-pervasive or all-comprehensive quality
in the sense that it extends to all individuals, groups, areas and things within the state. No
person or body of persons can claim exemption from it as matter of right. The immunity
granted to diplomats from other countries is only a matter of international courtesy and
not of compulsion.
 Inalienability: Sovereignty is inalienable. It means that the state cannot part with its
sovereignty. The state as a sovereign institution ceases to exist, if it transfers its
sovereignty to any other state.
 Indivisibility: As sovereignty is an absolute power, it cannot be divided between
different sets of individuals or groups. In every state, sovereignty must be vested in a
single legally competent body, to issue the final commands. Division of sovereignty is
bound to give rise to conflicting and ambiguous commands.
 Imprescriptibility: This implies that sovereignty can neither be destroyed nor lost
if it has not been exercised for a long period. A people may not have exercised
sovereignty for some time due to control by a foreign power. But non-exercise of
sovereign power does not put an end to sovereignty itself. It can only shift to a new
bearer.
 Originality: The most important characteristic of sovereignty is its original
character. Sovereignty cannot be manufactured. Dependence on another for supreme
power cannot make a state a sovereign one.

Different kinds of sovereignty exist in the world. These are discussed below:

Titular and Real Sovereignty

A titular sovereign is one who is sovereign only in name and not in reality. Although
outwardly, the power is vested in one person, the real power is enjoyed by another. Such a
situation prevails in parliamentary democracies. The King or Queen in England is the Titular
head and he/she does not enjoy any real power. Actual powers are enjoyed by ‘King/Queen-in-
Parliament’ which constitutes the real sovereign. In case of India, the President of India is the
titular sovereign and the real power lies in the hands of the Council of Ministers headed by the
Prime Minister which constitutes the real sovereign.

De facto and de jure Sovereign

Sometimes, the existing regime in a state is overthrown through unconstitutional means,
as in the case of a military takeover. In such a situation, until the new sovereign is legally
established and recognized, there may exist two sovereigns-one in the legal sense, who has lost
his real powers; the other in the practical sense who has not yet been legally established. The de-
facto sovereign may not have any legal claim to obedience, but he is a practical sovereign whose
authority is based on physical force or moral persuasion and the people are compelled to obey
him. Under such circumstances, the legal or formal sovereign retains de-jure sovereignty while
the actual sovereign is said to be the de-facto sovereign. In the present-day world there have been
several instances where military generals have overthrown constitutionally elected governments,
thereby usurping all powers of the state. Such a takeover makes the military general the de-facto
or actual sovereign possessing real powers, while the dethroned regime, which still is the legal or
formal sovereign, retains de-jure sovereignty. In course of time, the de-facto sovereign, by
securing the consent of the people through elections or otherwise, may become a de-jure
sovereign. The best example of de-facto sovereignty, in modern times, is furnished by the case of
Spain under General Franco who captured the authority of the State by defeating the Republican
Government of Spain. Though he began to rule by force, gradually he was trying to be a de-jure
sovereign by winning the consent of the people. Historically too, there have been several
examples of the emergence of de facto sovereignty. Some of these are: the authority exercised by
Cromwell in England, by Napoleon in France and the Bolshevist group in Russia after 1917.

Legal and Political Sovereignty

The legal sovereign is the supreme law making body. In every independent state, there
are some laws which must be obeyed by the people and there must be a power to issue and
enforce these laws. The power which has the legal authority to issue and enforce these laws and
final commands is the legal sovereign. It may vest in one person or a body of persons. It alone
declares, in legal terms, the will of the state. Law is a command of the sovereign and he who
violates it is liable to be punished. The King/Queen-in-Parliament is the legal sovereign in the
UK.

Political sovereignty is vested in the electorate, public opinion and all other influences of
the state which mould or shape public opinion. The political sovereign is represented by the
electorate or the body of voters in the state. The electorate, that is, the political sovereign, elects
the legal sovereign in the form of the members of the parliament. Accordingly, the political
sovereign controls the legal sovereign. It lies behind the legal sovereign. According to
A.C.Dicey, “Behind the sovereign whom the lawyer recognizes there is another sovereign to
whom the legal sovereign must bow.”

Popular Sovereignty
The concept of popular sovereignty regards people as the source of all authority in the
state. All organs of the government, whether it is the executive, the legislature or the judiciary,
derive their power and authority from the will of the people taken as a whole. Accordingly, the
idea of popular sovereignty implies that the supreme power in the state rests with the people. The
Preamble to the Constitution of India contains the idea of popular sovereignty. It begins with the
phrase, “WE, THE PEOPLE OF INDIA …” and ends with the phrase, “…HEREBY ADOPT,
ENACT, AND GIVE TO OURSELVES THIS CONSTITUTION.”

In modern times, the development of sovereignty as a theory coincided roughly with the
growth of the state in terms of power, functions and prestige. In the nineteenth century, the
theory of sovereignty as a legal concept (i.e. sovereignty expressed in terms of law) was
perfected by John Austin, an English jurist. He is regarded as the greatest exponent of the
“Monistic theory of sovereignty.” It is called the Monistic Theory of Sovereignty because it
envisages a single sovereign in the state. The sovereign may be a person or a body of persons.
Furthermore, as sovereignty is considered to be a legal concept, the theory is called the Legal-
Monistic theory of Sovereignty. John Austin, in his famous book, Province of Jurisprudence
Determined (1832), stated his views on sovereignty in the following words: “If a determinate
human superior not in the habit of obedience to a like superior receives habitual obedience from
the bulk of a given society, that determinate superior is sovereign in that society and that society
(including the superior) is a society political and independent.”

On an analysis of the above definition, we could find the following implications:

Firstly, sovereignty must reside in a “determinate person” or in a “determinate body” which

acts as the ultimate source of power in the state.

Secondly, the power of the determinate superior is unlimited and absolute. He can exact
obedience from others but he never renders obedience to any other authority.

Thirdly, the obedience rendered by a people to an authority occasionally will not turn the
authority into sovereign power.

Fourthly, obedience rendered to sovereign authority must be voluntary and as such undisturbed
and uninterrupted. Austin also points out that it is not necessary that all the inhabitants should
render obedience to the superior. It is enough if the “bulk”, i.e., the majority of a society renders
habitual obedience to the determinate superior.

Fifthly, the sovereign is the supreme law maker. Laws are the commands of the sovereign which
are binding upon all within the territorial jurisdiction of the state. Breach or violation of these
commands leads to punishment from the sovereign.

Sixthly, sovereignty is one indivisible whole and as such incapable of division between two or
more parties. There can be only one sovereign authority in a state.

CRITICAL EVALUATION OF
AUSTIN’S THEORY
The theory of Austin has been strongly criticized by many writers like Sidgwick, Sir
Henry Maine and others. The main point of criticism against Austin’s theory is that the theory is
inconsistent with the modern idea of popular sovereignty. In his fascination for the legal aspect
of sovereignty, Austin completely loses sight of popular sovereignty according to which the
ultimate source of all authority is the people.

It is also pointed out that sovereignty may not always be determinate. It is very difficult
to locate the sovereign in a federal state. For example, in the federal state of USA, sovereignty
resides neither with the President nor with the legislature, namely, the Congress. It resides with
the people as expressed in the constitution. The same is the case in India.

Furthermore, Austin has been criticized for defining law as the command of the
sovereign. But in many countries, customary laws are supreme and they are not issued in the
form of commands. But such laws influence the conduct of even despots to a great extent. Sir
Henry Maine cites the example of Ranjit Singh of Punjab who fits the Austinian conception of
human superior. But even a despotic ruler like Ranjit Singh dared not change the customary laws
which regulated the conduct of his people.

According to the advocates of the Pluralist theory of sovereignty, the state is an

association like various other associations.

However, in spite of the criticisms levelled against the monistic view of sovereignty as
propounded by John Austin, it must be mentioned that Austin is an exponent of absolute and
unlimited sovereignty purely from the legal or formal point of view. Fundamentally, he does not
prescribe for an irresponsible sovereign, but maintains that the sovereign cannot be formally
made responsible to any authority similar to himself: His authority is legally superior to all
individuals and groups within his jurisdiction. Austin has done a distinct service by clearly
distinguishing the legal from the political sovereign.

Pluralism or the Pluralist theory of sovereignty emerged as a reaction against the

Monistic theory of sovereignty which we have discussed in the previous section. The Pluralist
theory emerged in response to the undue emphasis on the power of the state as advocated by the
monists. Some of the leading exponents of the Pluralist theory include Emile Durkheim, Otto
von Gierke, F.W.Maitland, G.D.H.Cole, Sidney and Beatrice Webb, Miss M.P.Follet and
Prof. Harold Laski. The Pluralist theory of sovereignty rejects the monistic theory of
sovereignty and denies that sovereignty is the absolute and indivisible supreme power of the
state.

PRINCIPLES OF PLURALISM
 Pluralistic Nature of Society: The Pluralist theory recognizes the role of several
associations in the society, formed by men in pursuance of their varied interests. Such
associations include the church and other religious organizations, trade unions,
cooperative societies, voluntary associations and the like. At best, the state is but one of
these associations, standing side-by-side with them and not above them. The state is not
distinct from these associations.
 Role of the State as Coordinator: Just as an association coordinates the activities of its
members, the state also coordinates the activities of the other associations in the society.
The state is a means of resolving the conflicting claims of these associations. It does so
by evolving a common basis of their functioning, not by imposing its own will on them
but by way of harmonizing and coordinating their several interests so as to secure the
“common good” or the interest of the society at large.
The Pluralist theory maintains that the claim of the state to superior authority cannot be taken for
granted. The state enjoys a privileged position in the sense that its jurisdiction is compulsory
over all individuals and associations within its fold. It is equipped with coercive powers so that it
can punish those who defy its commands. But the state must justify the exercise of its special
powers. As an association of associations, the state must fulfil its moral obligation of
harmonizing the interests of all associations operating in the society, without being influenced by
any “vested interests” while exercising its authority.

 Decentralization of Authority: The Pluralists hold that the complexity of the

economic and political relations of the modern world cannot be dealt with by a
monolithic view of the state. Therefore, the management and control of society must be
shared by various associations in proportion to their contribution the social good.
Accordingly, the pluralists stand for the decentralization of authority so that all authority
is not concentrated in the hands of the state.

CRITICAL EVALUATION OF THE

PLURALIST THEORY
The pluralist theory of sovereignty is criticized on the ground that if sovereignty is
divided among the various associations existing in the society, this division will lead to the
destruction of sovereignty. As a result, there will be chaos and anarchy in the society.
Furthermore, some groups in the society may be more organized and vocal than other groups. In
such situations, the interests of the dominant groups may prevail over the vulnerable sections of
the society. Under such circumstances, the responsibility for protecting the common interests
rests with the state, which has to harmonize the conflicting claims of different interest groups.

However, in spite of the criticisms leveled against the Pluralist theory of sovereignty, it
must be mentioned that the pluralist theory was a democratic reaction against state absolutism. It
pointed out the limitations on the authority of the state while acknowledging the role and
importance of various groups and associations in the society.

Lastly, coming to the Marxists view on sovereignty, they take a very narrow view of
sovereignty because they believe that it is intended to protect the interests of the dominant class
of society. According to Marxists, the State shall wither away with the development of a
classless society. In their view, sovereignty of the state is limited by International Law which
imposes a check on the absolute power of the State. They consider it as a “great stumbling block
on the oath of international progress.” However, this accusation of a restraint of liberty and a
lack of opportunity was derided by and opposed by John Rawls, who believed that a society in
time develops on a meritocratic model and asserted that the basic purpose of the society which is
to assure its citizens of freedom and opportunity shall be sustained.

Relationship between State and Sovereignty

My understanding of it based on the general meanings of the words (and I couldn't find any
sources to back this up) is as follows:

 When the "body politic" is acting (i.e. passing or enforcing laws), it is considered
a Sovereign
 When the "body politic" is not acting, and just existing (i.e. discussing it), it is considered
a State
 When the "body politic" is being compared to other States, it is considered a Power
In other words: When the State acts, it is called the Sovereign, or The State is, and the
Sovereign does.

8. SOURCES OF LAW
Analytical Positivist School of Thought- Austin said that the term ‘source of law’ has three
different meanings:

1. This term refers to immediate or direct author of the law which means the sovereign in
the country.
2. This term refers to the historical document from which the body of law can be known.
3. This term refers to the causes that have brought into existence the rules that later on
acquire the force of law. E.g. customs, judicial decision, equity etc.

Historical Jurists- Von Savigny, Henry Maine, Puchta etc. – This group of scholars
believed that law is not made but is formed. According to them, the foundation of law lies in the
common consciousness of the people that manifests itself in the practices, usages and customs
followed by the people. Therefore, for them, customs and usages are the sources of law.

Sociological Jurists– This group of scholars protests against the orthodox conception of
law according to which, law emanates from a single authority in the state. They believe that law
is taken from many sources and not just one.

Ehlrich said that at any given point of time, the centre of gravity of legal development lies not
in legislation, not in science nor in judicial decisions but in the society itself.
Duguit believed that law is not derived from any single source as the basis of law is public
service. There need not be any specific authority in a society that has the sole authority to make
laws.

Salmond on Sources of Law- Salmond has done his own classification of sources of law:

1. Formal Sources-A Formal Source is as that from which rule of law derives its force
and validity. The formal source of law is the will of the state as manifested in statutes or
decisions of the court and the authority of law proceeds from that.
2. Material Sources- Material Sources are those from which is derived the matter
though not the validity of law and the matter of law may be drawn from all kind of
material sources.
3. Historical Sources- Historical Sources are rules that are subsequently turned into
legal principles. Such source are first found in an Unauthoritative form. Usually, such
principles are not allowed by the courts as a matter of right. They operate indirectly and
in a mediatory manner. Some of the historical sources of law are:
4. Unauthoritative Writings

1. Legal Sources- Legal Sources are instruments or organs of the state by which legal rules
are created for e.g. legislation and custom. They are authoritative in nature and are followed
by the courts. They are the gates through which new principles find admittance into the
realm of law.

Some of the Legal Sources are:

1. Legislations
2. Precedent
3. Customary Law
4. Conventional Law- Treatises etc.

Charles Allen said that Salmond has attached inadequate attention to historical sources.
According to him, historical sources are the most important source of law.

Keeton said that state is the organization that enforces the law. Therefore, technically State
cannot be considered as a source of law. However, according to Salmond, a statute is a legal
source which must be recognized. Writings of scholars such Bentham cannot be considered as a
source of law since such writings do not have any legal backing and authority.
Sources of Law: Are they sources of Right too?
A Legal Right means a fact that is legally constitutive of a right. A Right is the de
facto antecedent of a legal right in the same way as a source of law is de facto antecedent of a
legal principle.

 Legislation-
‘Legis’ means law and ‘latum’ means making. Let us understand how various jurists have
defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules
by a competent authority.
2. Horace Gray- Legislation means the forma utterance of the legislative organs of the
society.
3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought–

This school believes that typical law is a statute and legislation is the normal source of
law making. The majority of exponents of this school do not approve that the courts also can
formulate law. They do not admit the claim of customs and traditions as a source of law. Thus,
they regard only legislation as the source of law.

Historical School of Thought–

This group of gentlemen believes that Legislation is the least creative of the sources of
law. Legislative purpose of any legislation is to give better form and effectuate the customs and
traditions that are spontaneously developed by the people. Thus, they do not regard legislation as
source of law.

Types of Legislation
1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds
from the sovereign power of the state. It cannot be repealed, annulled or controlled by any
other legislative authority.
2. Subordinate Legislation- It is that which proceeds from any authority other than
the sovereign power and is dependant for its continual existence and validity on some
superior authority.

Delegated Legislation– This is a type of subordinate legislation. It is well-known that

the main function of the executive is to enforce the law. In case of Delegated Legislation,
executive frames the provisions of law. This is also known as executive legislation. The
executive makes laws in the form of orders, by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal

system.

In India, the power to make subordinate legislation is usually derived from existing enabling
acts. It is fundamental that the delegate on whom such power is conferred has to act within the
limits of the enabling act.

The main purpose of such legislation is to supplant and not to supplement the law. Its main
justification is that sometimes legislature does not foresee the difficulties that might come after
enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen while
formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample
scope for adjustment in the light of experiences gained during the working of legislation.

Controls over Delegated Legislation

Direct Forms of Control

1. Parliamentary Control
2. Parliamentary Supervision

Indirect Forms of Control

1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate
enactments but they can declare them inapplicable in special circumstances. By doing so,
 the rules framed do not get repealed or abrogated but they surely become dead letter as
they become ultra vires and no responsible authority attempts to implement it.
2. Trustworthy Body of Persons– Some form of indirect control can be exercised by
entrusting power to a trustworthy body of persons.
3. Public Opinion can also be a good check on arbitrary exercise of Delegated Powers. It
can be complemented by antecedent publicity of the Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must be taken. It will
definitely minimize the dangers of enacting a vague legislation.

Salient Features of Legislation over Court Precedents

1. Abrogation- By exercising the power to repeal any legislation, the legislature can
abrogate any legislative measure or provision that has become meaningless or ineffective
in the changed circumstances. Legislature can repeal a law with ease. However, this is
not the situation with courts because the process of litigation is a necessary as well as a
time-consuming process.
2. Division of function- Legislation is advantageous because of division of functions.
Legislature can make a law by gathering all the relevant material and linking it with the
legislative measures that are needed. In such a process, legislature takes help of the public
and opinion of the experts. Thus, public opinion also gets represented in the legislature.
This cannot be done by the judiciary since Judiciary does not have the resources and the
expertise to gather all the relevant material regarding enforcement of particular
principles.
3. Prospective Nature of Legislation- Legislations are always prospective in nature.
This is because legislations are made applicable to only those that come into existence
once the said legislation has been enacted. Thus, once legislation gets enacted, the public
can shape its conduct accordingly. However, Judgments are mostly retrospective. The
legality of any action can be pronounced by the court only when that action has taken
place. Bentham once said that “Do you know how they make it; just as man makes for
his dog. When your dog does something, you want to break him off, you wait till he does
it and beat him and this is how the judge makes law for men”.

4. Nature of assignment- The nature of job and assignment of a legislator is such

that he/she is in constant interaction with all sections of the society. Thereby,
opportunities are available to him correct the failed necessities of time. Also, the
decisions taken by the legislators in the Legislature are collective in nature. This is not so
in the case of Judiciary. Sometimes, judgments are based on bias and prejudices of the
judge who is passing the judgment thereby making it uncertain.
5. Form- Enacted Legislation is an abstract proposition with necessary exceptions and
explanations whereas Judicial Pronouncements are usually circumscribed by the facts of
a particular case for which the judgment has been passed. Critics say that when a Judge
gives Judgment, he makes elephantiasis of law.
Difference between Legislation and Customary Law
1. Legislation has its source in theory whereas customary law grows out of practice.
2. The existence of Legislation is essentially de Jure whereas existence of customary law is
essentially de Facto.
3. Legislation is the latest development in the Law-making tendency whereas customary
law is the oldest form of law.
4. Legislation is a mark of an advanced society and a mature legal system whereas absolute
reliance on customary law is a mark of primitive society and under-developed legal
system.
5. Legislation expresses relationship between man and state whereas customary law
expresses relationship between man and man.
6. Legislation is precise, complete and easily accessible but the same cannot be said about
customary law. Legislation is jus scriptum.
7. Legislation is the result of a deliberate positive process. But customary law is the
outcome of necessity, utility and imitation.

Advantage of Court Precedents over Legislation

1. Dicey said that “the morality of courts is higher than the morality of the
politicians”. A judge is impartial. Therefore, he performs his work in an unbiased
manner.
2. Salmond said that “Case laws enjoys greater flexibility than statutory law. Statutory
law suffers from the defect of rigidity. Courts are bound by the letter of law and are not
allowed to ignore the law.”

Also, in the case of precedent, analogical extension is allowed. It is true that legislation as an
instrument of reform is necessary but it cannot be denied that precedent has its own importance
as a constitutive element in the making of law although it cannot abrogate the law.

3. Horace Gray said that “Case law is not only superior to statutory law but all law is
judge made law. In truth all the law is judge made law, the shape in which a statute is
imposed on the community as a guide for conduct is the statute as interpreted by the
courts. The courts put life into the dead words of the statute”.
4. Sir Edward Coke said that “the function of a court is to interpret the statute that is a
document having a form according to the intent of them that made it”.
5. Salmond said that “the expression will of the legislature represents short hand
reference to the meaning of the words used in the legislature objectively determined with
the guidance furnished by the accepted principles of interpretation”.
  JUDICIAL PRECEDENT AS A
SOURCE OF LAW
LAW OF PRECEDENTS
A precedent is a previous instance or case which furnishes an example or rule for subsequent
conduct, and a pattern upon which subsequent conduct is based. – (Dias, Jurisprudence,
2nd Edn.)

Elements of a precedent –
(a) Concrete decision – binding upon parties
(b) Abstract Principle – binding as an authority on a subsequent judge.

Precedents may be divided in the following manner, according to- Salmond –

> Authoritative precedents – a judge is bound to follow.
- legal sources of law.

> Persuasive precedents – judgments of foreign courts, judicial dicta and decisions
of the Privy Council when it decides appeal cases from colonies.

- historical sources of law.

HISTORICAL GROWTH OF THE SYSTEM OF

PRECEDENTS IN ENGLAND
 Initially began because medieval judges considered themselves charged with the duty of
ascertaining and declaring and enforcing contemporary customs and usages.
 By the 18th century, it became an integral part of the common law system. Lord
Mansfield had consolidated and reaffirmed the doctrine of judicial consistency, and
declared – ‘Law does not consist of particular cases, but of general principles’.
 By the 19th century, Lord Tenterden C.J. – “Decisions of our predecessors, the judges
of former times, ought to be followed and adopted unless we can see very clearly that
they are erroneous, for otherwise there will be no certainty in the administration of
law.”
 Prof. Holdsworth in the 20th century, “A certain element of conservation is needed,
and the reservations with which the English system of case law is received, enable the
judges within fairly wide limits to apply to old precedents, a process of selection and
 rejection which brings the law into conformity with modern conditions. This is often
expressed as the golden mean between too much flexibility and too much rigidity.”

HIERACHY OF AUTHORITY FOR OPERATION OF

PRECEDENTS IN ENGLAND
House of Lords
 Bound by its own decisions.-
 Its decisions bind all courts below it.
 Not bound when decision is made in ignorance of statute, or where the
principle is obscure, or where it is out of line with established principles and
other authorities. [Decided in Scruttons Ltd. V.Midland Silicones Ltd. –
(1962) AC 446 (HL)]

Privy Council
 Not bound by its own decisions, but great respect is paid.

Court of Civil Appeal

 Binds all inferior civil courts.
 Bound by its own decisions (Decided in 1944)
 Not bound when –
Conflict between its own decisions – it has to chose.
When decisions though not overruled, cannot stand with the decisions of
the House of Lords.

If given in ignorance of a statute or rule having statutory effect. [Held in

the Bristol Aero plane Case – (1944) 1 KB 718)]

Court of Criminal Appeal

 Bound by its own previous decisions
 Bound by those of its predecessors.
 Not bound by decisions of the Court of Appeal
 Not bound by its own decisions when -
-A decision not argued on both sides
 -A decision that involves liberty of the citizens which is of utmost
importance.

High Court
 Creates a binding precedent for all lower courts.
 In case of an earlier decision of the same High Court by a bench of equal strength,
determination should be by bench of greater strength.
 Present High Courts not bound by decisions of old courts of co-ordinate jurisdiction,
although they have persuasive value.

Divisional Court
 Carries greater weight than the decisions of a puisne judge, but cannot  overrule that.
 Since recently, bound by its own decisions.

DOCTRINE OF PRECEDENT IN INDIA – A

BRITISH LEGACY
Pre-Independence
According to S.212 of the Govt. of India Act, 1935 - Law laid down by Federal Court and
any judgment of the Privy Council is binding on all courts of British India – Privy Council
was supreme judicial authority – AIR 1925 PC 272.

Post-Independence
 SC became the supreme judicial authority – streamlined system of courts established.

Supreme Court
 Binding on all courts in India.
 Not bound by its own decisions, or decisions of PC or Federal Court – AIR 1991 SC
2176

High Courts
 Binding on all courts within its own jurisdiction.
 Only persuasive value for courts outside its own jurisdiction.
 In case of conflict with decision of same court and bench of equal strength, referred to a
higher bench.
 Decisions of PC and federal court are binding as long as they don’t conflict with
decisions of SC.

Lower courts
 Bound to follow decisions of higher courts in its own state, in preference  to high courts
of other states.

CONSTITUTIONAL PROVISIONS REGARDING

PRECEDENTS OF THE SC – SCOPE OF Art. 141
 Art. 141 states, “The law declared by the SC shall be binding on all courts within the
territory of India.
 The SC judgments as between the litigants are decisions, as to the nation, they are
declaratory of the law – AIR 1980 SC 286
 However, Art. 141 does not mean or imply that the law once declared by the SC cannot
be altered by a competent legislature – AIR 1951 Bom. 438. If, by an amendment the law
is changed, the amendment would not affect Art.141 because the declaration itself would
come to an end with the change of the law.
 In 1995 (6) SCC 614, the SC declared, ‘The court, as a wing of a state, is itself a source
of law. The law is what the SC says it is’. This famous statement of the court has been
greatly criticized as it gives excess power to the courts, and neglects the concept of
separation of powers.
 The objective of this provision is to ensure that the SC may declare law  or pass
necessary measures that are necessary to do complete justice – AIR 1967 SC 1643. A
minority judgment of the SC is not a binding precedent, but being a judgment of
judge/judges of the highest court, it has great persuasive value – AIR 1968 Guj 124

CONSTITUTIONAL PROVISIONS REGARDING

PRECEDENTS OF
THE SUPREME COURT – SCOPE OF Art. 141
 Art. 141 states, “The law declared by the SC shall be binding on all courts within the
territory of India.

 The SC judgements as between the litigants are decisions, as to the nation, they are
declaratory of the law – AIR 1980 SC 286

 However, Art. 141 does not mean or imply that the law once declared by the SC cannot
be altered by a competent legislature – AIR 1951 Bom. 438. If, by an amendment the law
is changed, the amendment would not affect Art. 141 because the declaration itself would
come to an end with the change of the law.

 In 1995 (6) SCC 614, the SC declared, ‘The court, as a wing of a state, is itself a
source of law. The law is what the SC says it is’. This famous statement of the court
has been greatly criticized as it gives excess power to the courts, and neglects the concept
of separation of powers.
 The objective of this provision is to ensure that the SC may declare law or pass necessary
measures that are necessary to do complete justice – AIR 1967 SC 1643.

 A minority judgment of the SC is not a binding precedent, but being a judgment of a

judge/judges of the highest court, it has great persuasive value – AIR 1968 Guj 124
 However a decision is a precedent only when it decides a question of law and not
otherwise – 1992 (1) SLR 335(SC) Decisions of the SC as to as to facts cannot be cited
as precedents – AIR 1960 SC 195
 The HC in the name of interpreting the judgment of the SC cannot sit in appeal and
modify it – AIR 1986 SC 1455
 The SC should not make any pronouncement on any question which is not strictly
necessary for the disposal of the particular case before it - AIR 1959 SC 149
 In the case of AIR 1980 SC 2147, the SC recommended the framing of guidelines in the
exercise of power under Art. 72 and 161. It was held that the court laid down a mere
recommendation, not a ratio decidendi, and therefore did not mind the Constitution bench
in a subsequent case. Although the Court may recommend the framing of guidelines,
such a recommendation is not binding upon the Govt.
 In case of a conflict between two SC judgments by benches of equal strength, it has been
held that the later decision has to be followed, it having impliedly overruled the earlier
decision – AIR 1980 SC 1955. However, if one of the decisions more lucidly explains
the situation, while the other leaves it open, the lucid decision has to be taken into
 account - AIR 1987 Pat. 53. This however, would depend upon the facts of each
individual case.
 When the SC, with deliberate intent of settling the law, pronounces upon a question, it
would be law under Art. 141. Once the law is declared, it is not possible to hang onto a
contrary view of the HC merely because it has not been specifically overruled by the SC.

ELEMENTS OF A JUDGEMENT – RATIO

DECIDENDI AND OBITER DICTA
RATIO DECIDENDI
 The dictionary meaning of this Latin expression is the ‘rule of law on which a judicial
decision is made’, or ‘reason for deciding’.
 Every decision has 3 basic postulates –
 iv. Findings of facts both direct and inferential
 v. Statement of principles applicable to the legal problems as disclosed by facts
 vi. Judgment based on the combined effect of the above.
 To consider the ratio decidendi of a case, the SC has to ascertain the principle upon
which it was decided. This is sometimes difficult in cases where divergent views are
expressed by different judges, but eventually the final decision is taken.
 A decision is binding not because of its conclusion, but in regard to its ratio and the
principle laid down therein. General statements made beyond the ratio decidendi have
mere persuasive value only. This was held in (1996) 6 SCC 44.
 A case is only an authority for what it decides, and not from what logically follows from
it – held in AIR 1967 SC 1073
 Although the decidendi can be applied to similar cases on basis of fact and law, the SC
has said that care must be taken to ensure that it is not applied mechanically.

OBITER DICTA
 Obiter dicta is ‘a judge’s expression of opinion uttered in court, or while giving
judgment, but not essential to the decision and not part of the ratio decidendi.’
 It also means an incidental remark, or something said in passing.
 Normally, even an obiter dictum is expected to be obeyed and followed. The obiter dicta
of the SC are entitled to considerable weight – AIR 1995 SC 1729, AIR 1959 SC 814.
 However, the weight accorded to dicta varies with the type of dictum. Mere casual
expressions carry no weight at all. Not every passing expression of a judge, no matter
how eminent cannot be treated as a having the weight of authority. In some cases, the
obiter dicta of the court will have mere recommendatory effect, and the government or
parties to the case are not bound by them.
 In India, it has been held by the Bombay HC, that the obiter dicta of the PC were binding
on all courts in India, on the ground that if the highest court of appeal had applied its
mind and decided a question, judicial discipline required that the decision should be
followed – 56 Bom L.R.1156.
 In England obiter dicta are not binding on any court – Halsbury, Vol 22, p. 797.

PER INCURIAM
 ‘Incuria’ literally means ‘carelessness’ and the phrase ‘per incuriam’ is used to describe
judgments that are delivered with ignorance of some statute or rule.
 It is well-settled in the English doctrine of precedents that a judgment rendered in
ignorance of a statute, or a rule having statutory force, which would have affected the
result, is not binding on a court otherwise bound by its own decisions. In London Street
Tramways Co. v. London County Council – (1898) AC 375, the House of Lords
recognized that such a judgment was an exception to the rule that the House of Lords was
absolutely bound by its own judgments.
 The same exception was recognized by the Court of Appeal in the Bristol Aeroplane
case – (1944) 1KB 718. The court gave the explanation “It cannot be right to say that in
such a case the court is entitled to disregard the statutory provision and is bound to follow
a decision of its own when that provision was not present to its mind. Cases of this
description are examples of decisions given per incuriam.”
 The Court of Appeal in Morelle Ltd v Wakeling [1955] 1 All ER 708, [1955] 2 QB 379
stated that as a general rule the only cases in which decisions should be held to have been
given per incuriam are those of decisions given in ignorance or forgetfulness of some
inconsistent statutory provision or of some authority binding on the court concerned: so
 that in such cases some part of the decision or some step in the reasoning on which it is
based is found, on that account, to be demonstrably wrong.

 "A decision is given per incuriam when the court has acted

• In ignorance of a previous decision of its own or of a court of coordinate jurisdiction while

covered the case before it, in which case it must decide which case to follow, or

• When it has acted in ignorance of a House of Lords decision, in which case it must follow
that decision; or • When the decision is given in ignorance of the terms of a statute or rule
having statutory force.

 A decision should not be treated as given per incuriam, however, simply because of a
deficiency of parties, or because the Court had not the benefit of the best argument, and,
as a general rule, the only cases in which decisions should be held to be given per
incuriam are those given in ignorance of some inconsistent statute or binding authority.
Even if a decision of the Court of Appeal has misinterpreted a previous decision of the
House of Lords, the Court of Appeal must follow its previous decision and leave the
House of Lords to rectify the mistake".
 The law is the same in India, and a judgment rendered in ignorance of a relevant
constitutional or statutory provision is not binding upon any court in India. This principle
has been accepted by the SC in several cases including (1988) 2 SCC 602, AIR 1955 SC
661, 1985 Sup SCC 280, (2000) 4 SCC 262 and recently in (2007) 7 SCC 667.

DOCTRINE OF STARE DECISIS

 The dictionary meaning of this phrase is “the legal principle of determining points in
litigation according to precedent”
 The doctrine of stare decisis is invoked when the reversal of a decision, followed for a
considerable length of time, is likely to seriously embarrass those who had, relying upon
its particular interpretation of a statute, would find themselves frustrated by a different
interpretation.
 The court should as far as possible stick to the doctrine of stare decisis. One of the chief
reasons is that a matter that has once been fully argued and decided should not be
allowed to be reopened.
 However, this is not a universal command. If the rule were to be followed blindly, it
would stunt change, and the growth of society. Where public interest is invoked, and
where the question is one of constitutional construction, the doctrine may be departed
from– AIR 1953 SC 252.
 The important principles in reconsidering the decisions of the SC were set out in the
Bengal Immunity case – AIR 1955 SC 661. The SC said there is nothing to
prevent the SC from departing from a previous decision if it is convinced of its error and
its baneful effect on the general interest of the public. However, this power of review
must be exercised with due care and caution and only for advancing public well-being.

IMPORTANCE OF DISSENTING JUDGEMENTS

 The importance of dissenting judgments was discussed in detail in the English case of
Smith v. Central Asbestos Co. Ltd – (1973) AC 518 (also called the Dodd’s
case), and later in the case of In Re Harper v. NCB – (1974) 2 WLR 775. In the
Dodd’s case, Lord Denning stated that ‘We can only rely upon the reasoning which the
majority relied upon to deliver the judgment. We cannot use the reasoning of the
minority, because it must be wrong, as they have come to the wrong judgment’. The
reason behind this is that, a dissenting judgment valuable and important, though it may be
able to count as part of the ratio, for it played no part in the court’s reaching their
decision. This opinion of Lord Denning as been greatly criticized.
 We adopt a different principle in India, regarding the importance of dissenting judgments.
Art. 145 of the Constitution clearly gives judges the power to differ from the majority
and deliver their own judgment, while a number of cases through the years have
established that although dissenting judgments are not binding upon the court, they have
great persuasive value.
 When there is only one question before the Court, where the judges agree on a general
principle of law, but differ as to its specific application in the case, the ratio of the case
must be identified and that alone is binding.
 In the Delhi Laws case – (1955) 1 SCR 298, several kinds of delegation was
upheld by the judges, but no principle could be deduced from it as all the judges
delivered different opinions. If a pattern could be identified from such a case, that alone
would be binding in subsequent cases.
 The importance of dissenting judgments is best summed up by the following lines in the
case of AIR 1976 SC 1207, where the court held, “While it is regrettable that judges may
not always agree, it is better that their independence should be maintained and
recognized, than that unanimity should be secured through sacrifice. A dissent in the
court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a
future day, when a later decision may possibly correct the error which the dissenting
judge believes the court to have made.” Dissenting judgments thus can always be used
for persuasive value.

LANDMARK CASES WHERE THE SUPREME

COURT HAS LAID DOWN NEW GUIDING
PRINCIPLES
 Vishaka case – AIR 1997 SC 3011

The SC laid down guidelines for the prevention of sexual harrassment of women at the
workplace and recommended that the govt enact a law for the same. Such law having
not yet come into force, till date, the guidelines given by the court in this case are being
considered as having the force of legislation.

 M.C.Mehta v. UOI – AIR 1987 SC 1086

The court laid down a new rule of strict and absolute liabiilty in respect of hazardous and
inherently dangerous activities. This concept was initially born in England in the case of
Rylands v. Fletcher – (1868) LR 3 HL 330.

 Vineet Narain v. UOI - (1998) 1 SCC 226.

The SC laid down ‘Seven principles governing public life’. The Court also gave
directions for the setting up of the Central Vigilance Commission to govern the working
of the CBI.

 PUCL v. UOI and othrs – still going on.

 The SC has till date passed several orders directing the proper enforcement of the
various schemes relating to food distribution. It has also given a set of guidelines for the
regulation of these schemes.

 In July 2007, the court passed an order detailing the principles laid down by the Hon’ble
Supreme Court in relation to Copyright in derivative works; and its own judgment
publications. The test for originality in derivative works having been clearly laid down,
the Judgment would serve as a guiding force in the area of copyrights.

CIRCUMSTANCES WEAKENING THE BINDING

FORCE OF PRECEDENTS
1. Reversal
2. Overruling
3. Refusal to follow
4. Distinguishing
5. Ignorance of Statute – Per incuriam
6. Precedent sub silentio or not fully argued
7. inconsistency with earlier decisions of higher courts
8. Inconsistency with earlier decisions of the same rank
9. Decisions of equally divided courts
10. Erroneous Decisions

Introduction:
A precedent is a statement of law found in the decision of a superior Court, which
decision has to be followed by that court and by the courts inferior to it. Precedent is a previous
decision upon which the judges have to follow the past decisions carefully in the cases before
them as a guide for all present or future decisions.

In other words, “Judicial Precedent” means a judgment of a Court of law cited as an

authority for deciding a similar set of facts, a case which serves as authority for the legal
principle embodied in its decision. A judicial precedent is a decision of the Court used as a
source for future decision making.
 Meaning:
A precedent is a statement of law found in decision of a Superior Court. Though law
making is the work of the legislature, Judges make law through the precedent. Inferior courts
must follow such laws. Decisions based on a question of law are precedents. Decisions based on
question of facts are not precedents. Judges must follow the binding decisions of Superior or the
same court. Following previous binding decisions brings uniformity in decision making; not
following would result in confusion. It is well settled that Article 141 of the Constitution
empowers the Supreme Court to declare the law and not to enact the law, which essentially is the
function of the legislature. To declare the law means to interpret the law. This interpretation of
law is binding on all the Courts in India. This is called as precedent.

Definition of Precedent:
The term precedent is not defined anywhere. In general English it means, a previous
instance or case which is, or may be taken as an example of rule for subsequent cases, or by
which some similar act or circumstances may be supported or justified

According to Salmond :

In loose sense it includes merely reported case law which may be cited and
followed by courts.

In strict sense, that case law which not only has great binding authority but must
also be followed.

In all precedents are authority of past decisions for future cases. It must be
reported, cited and followed by courts.

Object:
The main object of doctrine of precedent is that the law of the land should be
clear, certain and consistent so that the Courts shall follow it without hesitation. In Union of
India vs. Raghubir Singh (AIR 1989 SC 1933) it has been held:

“The doctrine of binding precedent has the merit of promoting a certainty and
consistency in judicial decisions, and enables an organic development of the law, besides
providing assurance to the individual as to the consequence of transactions forming part
of daily affairs. And therefore, the need for a clear and consistent enunciation of legal
principle in the decisions of a Court.”

Origin of Precedent:
 Precedent originates from the doctrine of stare decisis. Stare decisis means to
abide by the decisions. The doctrine of stare decisis brings certainty and conformity to the
decisions of the court and to law.

Stare decisis:
The maxim explains the doctrine of stare decisis. When court settles an issue, a
conflict or a controversy between parties it becomes the law on those issues and conflicts. Such a
decision is a precedent. A precedent is a statement of law found in decision of the superior court.
Such decisions are binding to that court and the inferior courts have to follow. The case based on
similar set of facts decided by a court may arise in any future case. Following previous decisions
in similar future cases, the court may save time and avoid conflicting decisions, bringing
uniformity to law. The court settles a question of law or of fact, it is best to stand by that decision
while adjudicating similar cases in the future. Before deciding a case, the Judges look into
previously decided cases of similar nature by their own court or by superior courts. They shall
apply them on the facts or case before them and decide accordingly.

In Indian legal system, the judges take guidance from previous decisions on the
point, and rely upon them. The decisions of Apex Court and High Courts are compiled and
published in reports. These reports are considered to be valuable from the legal literature
perspective. Those decisions are very efficient in deciding cases of subsequent cases of similar
nature. They are called as Judicial Precedents. A decision is an authority for what it decides.

The ratio in the decision is its essence. The reason and principles on which a court
decides a case forms a precedent. A Judicial decision has a binding force for subsequent cases.
However, the whole Judgment is not binding in future cases.

In the case of Commissioner of Income Tax vs. M/s Sun Engineering

Works Private Limited AIR 1993, SC 43, the Hon’ble Apex Court held that, “while
applying the decision to a later case, the court must carefully try to ascertain the true principle
laid down by the decision of the Supreme Court and not to pick out words or sentences from the
judgment from the judgment divorced from the context of question under consideration by the
court to support their reasoning.”

It is very clear that, only those statements in an earlier decision which may be said
to constitute the ratio decidendi of that case are binding. Statements which are not essential or
necessary for deciding the later cases, such non-authoritative statements are called as obiter
dicta.

Ratio Decidendi :
Ratio Decidendi means the reason or the principle upon which the case has been
decided by the higher Courts and only this much is binding on the subordinate courts while
applying the earlier decision. The ratio decidendi can be ascertained by an analysis of facts. In
the case of Krishna Kumar vs. Union of India and others, (1990) 4 SCC 207 it has
been observed the hon’ble Supreme Court that:

“In other words, the enunciation of the reason or principle upon which a question
before a court has been decided is alone binding as a precedent. The ratio decidendi is the
underlying principle, namely, the general reasons or the general grounds upon which the
decision is based on the test or abstract from the specific peculiarities of the particular
case which gives rise to the decision. The ratio decidendi has to be ascertained by an
analysis of the facts of the case and the process of reasoning involving the major premise
consisting of a pre-existing rule of law, either statutory or judge made, and a minor
premise consisting of the material facts of the case under immediate consideration. If it is
not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by
it.”

Obiter Dicta:
Obiter Dicta means all that is said by the court by the way or the statement of law
which go beyond the requirements of the particular case and which laid down i.e., irrelevant or
unnecessary for the purpose in hand are called obiter dicta. These dicta have the force of
persuasive precedents only. The judges are not bound to follow them.

However, obitur dictum of Their Lordships of the hon’ble Supreme Court is

entitled to highest respect and is binding on all the courts of the country. It is observed in case of
“Mohandas Issardas and others vs. A.N. Sattanathan and others, AIR 1995
(Bom.) 113” that

“the court in India should respect as an authoritative pronouncement on the

particular aspect of law and treat that pronouncement as binding. The Supreme Court
has now taken the place of Privy Council and we would like to say unhesitatingly that
we must show the same respect for the ‘obiter dicta’ of the Supreme Court that we did
for those of Privy Council. The Supreme Court is the highest judicial tribunal in India
today and it is as much necessary as in the interest of judicial uniformity and judicial
discipline that all the High Courts must accept as binding the ‘obiter dicta’ of the
Supreme Court in the same spirit as the High Courts accepted the ‘obiter dicta’ of the
Privy Council.”

Sub Silentio:
A decision is sub silentio if an important issue ignored or was not argued by
counsel. That point or issue may turn the decision of the court. Such decision is not an authority
on the point which is not fully argued is sub silentio.

When Precedents cease to apply:

 There are three main criteria to oversight the previous precedents as follows:

I] Overruling

II] Reversing

III] Distinguishing

I] Overruling:
This is where a court higher in the hierarchy departs from a decision made in a
lower court. Then the previous decision is no longer binding.

II] Reversing:
This is where a higher court departs from the decision of the lower court on
appeal.

III] Distinguishing:
This is where the facts of the case are deemed sufficiently different so that the
previous case is no longer binding.

Order by consent of the parties:

The court can pass orders by consent of the parties. Those orders are not
adjudication of the rights and liabilities of the parties. That decision does not lay down any
principle. Those orders are not precedent.

Whether judgments of Hon’ble High Court are

binding as precedents:
Like Article 141 of the Constitution empowering the Supreme Court to declare
the law and making its precedents binding on all the courts, there is no specific provision directly
empowering the High Courts to declare the law and making its decisions binding on its
subordinate courts. But it is well settled that the Courts from a State subordinate to a High Court
from that State are bound by its decisions. Question is, what is the basis for this settled law?

The Hon’ble Supreme Court in M/s East India Commercial Co. Ltd. Calcutta
and another vs. Collector of customs, Calcutta (AIR 1962 S.C.1893) held in para-31 of the
judgment as under:
 “31…….Under Art. 215, every High Court shall be a court of record and shall
have all the powers of such a court including the power to punish for contempt of itself.
Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of
the fundamental rights and for any other purpose to any person or authority, including
in appropriate cases any Government within its territorial jurisdiction. Under Art. 227,
it has jurisdiction over all courts and tribunals throughout the territories in relation to
which its exercises jurisdiction. It would be anomalous to suggest that a tribunal over
which the High Court has superintendence can ignore the law declared by that Court
and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate
courts can equally do so, for there is no specific provision, just like in the case of
Supreme Court, making the law declared by the High Courts binding on subordinate
courts. It is implicit in the power of supervision conferred on a superior tribunal that all
the tribunals subject to its supervision should conform to the law laid down by it. Such
obedience would also be conducive to their smooth working otherwise, there would be
confusion in the administration of law and respect for law would irretrievably suffer.
We, therefore, hold that the law declared by the highest court in the State is binding on
authorities or tribunals under its superintendence, and that they cannot ignore it either
in initiating a proceeding or deciding on the rights involved in such a proceeding. If that
be so, the notices issued by the authority signifying the launching of proceedings
contrary to the law laid down by the High Court would be invalid and the proceedings
themselves could be without jurisdiction.”

Per incuriam decisions:

Per incuriam decisions do not have binding effect. Per incuriam decisions mean
where the court has acted in ignorance of a previous decision of its own or of a court of co-
ordinate jurisdiction or when the decision is given in ignorance of the terms of a statute or a rule
having statutory force.

The Apex Court in State of Bihar vs. Kalika Kuer alias Kalika Singh
and others (2003) 5 SCC 448, held that:

“A decision is given per incuriam when the court has acted in ignorance of a
previous decision of its own or of a court of co-ordinate jurisdiction which covered
the case before it, in which case it must decide which case to follow; or when it has
acted in ignorance of House of Lords decision, in which case it must follow that
decisions; or when the decision is given in ignorance of the terms of a statute or rule
having statutory force.”

CONFLICTING DECISION OF DIFFERENT

STRENGTH:
If there is conflict between the decision of lesser bench, then law laid down by the
larger bench will be binding. In this regard the Five-Judges Constitution Bench of Hon’ble
Supreme Court in case of “Central Board of Dawoodi Bohra Community vs. State of
Maharashtra, (2005) 2 SCC 673” has observed that,

“The law laid down by this Court in a decision delivered by a bench of larger
strength is binding on any subsequent Bench of lesser or coequal strength”.

This view is also followed by Hon’ble Bombay High Court in case of “Reliance
General Insurance Company Ltd. vs. Syeda Aleemunbee w/o. Syed Razaq, (First Civil Appeal
No. 1611 of 2013, decided on 03.03 2014”), to quote Honourable Bombay High Court,

“It is well settled, judicial process demands that a judge moves within the
framework of relevant legal rules and the coveted modes of those for ascertaining
them. The judicial robe has its inbuilt discipline, which mandates, for a High
Court to adhere in tune with the precedent of the larger Benches. This is more so,
if there are divergent views by Honourable Judges of the Supreme Court, on
identical issues.”

EFFECT OF ORDERS OF HIGHER COURT:

Any interim order passed even by the Supreme Court is limited to that particular
case and should not be used as precedent for other cases specifically when the Supreme Court
itself has earlier authoritatively decided the question which is squarely involved in the later case.
The Hon’ble Apex Court in “Megh Singh vs. State of Punjab [AIR 2003 SC 3184]”
has held that,

“circumstantial flexibility, one additional or different fact may make a

world of difference between conclusion in two cases or between two accused in
the same case. Each case depends on its own facts and a close similarity between
one case and another is not enough because a single significant detail may alter
the entire aspect.”

Conclusion:
Precedents work like lighthouse to guide all courts. Precedents bring certainty in
law. They always help the lower court judges, specially the junior judges to deal with applying
the law correctly. Sometimes the judges may support their views with the help of precedents.
These are the guidelines which must be followed by the lower courts to ensure the real justice,
consistency, uniformity in the judicial decisions and also provide predictability to the individual
rights.
  Custom as a Source of Law
Salmond said that ‘Custom is the embodiment of those principles which have commended
themselves to the national conscience as the principles of justice and public utility’.

Keeton said that “Customary laws are those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by
the courts and applied as a source of law because they are generally followed by the political
society as a whole or by some part of it”.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.
3. Law formulated by doctrinal writings and scientific discussions of legal principles.

Historical School of Jurisprudence– Von Savigny considered that customary

law, i.e. law which got its content from habits of popular action recognized by courts, or from
habits of judicial decision, or from traditional modes of juristic thinking, was merely an
expression of the jural ideas of the people, of a people’s conviction of right – of its ideas of right
and of rightful social control.

However, it is the Greek historical School that is considered as the innovator of custom as source
of law.

Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true human
association becomes a real and living entity animated by its own individual soul”.

Henry Maine believed that custom is the only source of law. He said that “Custom is a
conception posterior to that of themestes or judgment.”

Ingredients of Custom
1. Antiquity
2. Continuous in nature.
3. Peaceful Enjoyment
4. Obligatory Force
 5. Certainty
6. Consistency
7. Reasonableness

CLASSIFICATION OF CUSTOMS
Taking into consideration what has been discussed above, customs are habits of action or
patterns of conduct which are generally observed by classes or groups of people. Such habits of
action or pattern of conduct (customs) can be classified into–

(1) Customs without binding obligation and

(2) Customs with definite binding obligation.

(1) Customs without Binding Obligation:

Customs which are concerned with less important aspects of social life are covered in this
category. Most societies have certain customs with respect to the kind of dress one is expected to
wear on various occasions. For example, wearing a black dress at a funeral ceremony in
England but, white in India. Well-established customs are observed at burials and other solemn
ceremonies, etc. A large section of people observe customs of certain kind for the funeral of their
deceased relatives, irrespective of the fact that it may not be affordable for them. Whatever it
may be, none of these customs is completely obligatory / binding. Their sanction, in many cases
though powerful, is imperfect. No man is under an absolute compulsion to give a feast at the
time of marriage or after the funeral of the deceased relative, etc. All these customs are followed
due to the fear that non-observance of such customs may lead them to be socially outcaste. Such
customs are non-binding in the sense that they are not obligatory to follow. People follow them
due to the social pressure of public opinion. When a custom of this type is violated, society
usually reacts by showing social displeasure or disapproval; but it has no sanction in the strict
sense of the term. Such customs can be called as ‘Social Customs’.

(2) Customs with Definite Binding Obligation

In this category those customs are covered “which in a more definite and stringent sense
are regarded as the specific duties and obligations of men. Such customs may regulate the
obligation of marriage and the upbringing of children, the transmission of property at death, or
the modes of consummating and fulfilling agreements. Such customs do not pertain to the sphere
of social formalities, outward decorum, or aesthetics; rather, they are concerned with the serious
business of society, the work that must be accomplished in order to secure and guarantee
satisfactory conditions for collective life.” Customs covered in this category are backed by
sanction which is more certain in its operation than any other social customs. Such customs, if
satisfy certain standards or tests, acquire legal character, and their violation is met by typical
sanctions employed by the legal order. Such customs are enforceable and obligatory. Such
customs can be further divided into Legal Customs and Conventional Customs.
 For the purpose of the present study the researcher is more concerned with Legal
Customs than to mere Social Customs.

(1) Legal customs

‘Legal Custom’ occupies a place by itself in that its sanction is more certain in its operation than
that of any other. “The effect of sanction”, writes Sir C. K. Allen, “is negative rather than
positive: if the custom is not followed, certain desired consequences will not be brought
about.” For example, if a particular custom is not followed, the marriage will not be treated as
valid; the desired consequences of becoming a husband and wife will not be brought about.
Children out of such marriage will not be treated as legitimate. Law, back by the opinion at the
earlier stage and at later stages by the tribunals of the community, will forbid those relationships
to be effected.

Customary rules are ‘legal’ in the sense that they are binding and obligatory rules of conduct (not
merely of faith and conviction), and the breach of them is a breach of positive duty. In legal
custom no option, however small, is left to the individual, as in other social customs. Legal
custom is operative per se as a binding rule of law, independent of any agreement on the part of
those subject to it. According to Salmond, ‘A legal custom is one whose legal authority is
absolute—one which in itself and proprio vigore possesses the force of law.’ Legal custom
may further be classified as General Custom and Local Custom.

(a) General customs

General custom is that which prevails throughout the country and constitutes one of the sources
of the law of the land. It prevails throughout the territory of the state and is observed by all the
members of the society. There was a time when common law was considered to be the same as
the general custom of the realm followed from ancient time.19

(b) Local customs

A local custom is a custom confined to a particular locality and constitute a source of law
for that locality only. According to Salmond, “The term custom in its narrower sense means
local custom exclusively.”

The western concept of local custom which applies only to a defined locality such as a
district or a town, does not similarly apply to the Indian situation. Local custom here implies to
something more than a geographical locality. In India, local custom may be divided into two
classes – Geographical Local Customs and Personal Local Customs. These customs are law only
for a particular locality, sect, or family. (A kulachar, or family custom is a custom, the existence
of which is confined to a single family. Gour, Supra note 7 at p 158.)

‘Tribal custom’, says Sir Hari Singh Gour, ‘is a custom confined to a particular tribe, caste or
community.’ Tribal custom, in certain cases, applies to geographical local custom where the
population of a particular district or town or region is covered by the said tribal community at the
most. However, in other cases it applies both to the geographical locality and the personal
locality.

Customs and the customary laws of the Adivasis, the subject-matter of the present study, fall in
the latter category.

(2) Conventional customs

According to Salmond, ‘A conventional custom is one whose authority is conditional on its
acceptance and incorporation in agreement between the parties to be bound by it.’ 23 He
further stated that, ‘In the language of English law the term custom is more commonly confined
to legal custom exclusively, while conventional custom is distinguished as usage. Usages are not
laws ‘ex proprio vigore.’ (Dias, R M W, “Jurisprudence”, First Indian Reprint (1994) A
conventional custom or usage is a practice established by having been followed for a
considerable period of time, and arising out of a contract between the parties; it does not arise out
of its own force. Thus, a usage or conventional custom is an established practice which is legally
binding, not because of any legal authority independently possessed by it, but because it has been
expressly or impliedly incorporated in a contract between the parties concerned.

Conventional custom may, again, be divided into two types—General Conventional

Customs and Local Conventional Customs. General Conventional Customs are extensively
practiced throughout the realm; whereas Local Conventional Customs are limited to a particular
place or to a particular trade or transaction.

TRANSFORMATION THEORY OF CUSTOM INTO

LAW
The general criterion which distinguishes social customs from legal custom has already
been discussed above. The lines of demarcation between the two are fluid. While some customs
are non-legal, in the sense that they do not have absolute binding obligation whereas, some
customs have absolute binding obligation. Customs having absolute binding obligation are legal
customs and are elevated to the status of law (Article 13(3) (a) of the Constitution of India
elevated the custom to the status of law) if they satisfy certain judicial tests. At this point, it
becomes necessary to consider the conditions under which the transformation of ‘custom’ into
‘law’ takes place. Broadly speaking, there are two theories regarding the question as to when
custom is transformed into law. Those are the Historical and the Analytical theory of law.

(1) Historical School

Edmund Burke, who laid down the foundation of the historical school, pointed to history, habit
and religion as the true guides to social action. Friedrich Carl Von Savigny and George
Friedrich Puchta are the main exponents of the historical school of law. This school maintains
that, law was primarily the expression of the legal convictions and practices of the community.
According to this school, custom carries its own justification in itself, because it would not exist
at all unless some deep-seated needs of the people or some native quality of temperament give
rise to it. The growth of law does not depend upon the arbitrary will of any individual. It grows
as a result of the intelligence of the people. Custom is derived from the common consciousness
of the people. It springs from an inner sense of right. Law has its existence in the general will of
the people. Savigny calls it Volkgeist.

According to Savigny, ‘Law was not something that should be made arbitrarily and
deliberately by a lawmaker’. It was a product of “internal, silently-operating forces.” It was
deeply rooted in the past of a nation, and its true sources were popular faith, custom and the
common consciousness of the people. Like language, the constitution, and the manners of a
people, law was determined above all by the peculiar character of a nation, by its national spirit
(Volkgeist). To him, “law like language stands in organic connection with nature or character
of the people and evolves with the people.” Therefore, according to Savigny, the true basis of
positive law is its existence, its reality, in the common consciousness of the people. Custom
therefore is the badge and not the ground of origin of positive law.

Puchta agreed with Savigny and carried the theory even further. To him, custom was not
only self-sufficient and independent of legislative authority, but was a condition precedent of all
sound legislation. He founded the basis of customary law in the collective purpose of the nation,
and express legislation could be useful only in so far as it embodied this purpose as already
manifested in custom. The Historical theory of law has been criticized by many scholars and
jurists. Without disrespect to the scholarly genius of Savigny and his followers, Allen criticizes
their view as, ‘Many customs which have taken deep root in society do not appear to be
based on any general conviction of their rightness or necessity, or upon any real or
voluntary consensus utentium.’ Slavery, for example, was almost the universal practice of the
ancient world. Slavery is frankly admitted to be ‘contra naturam’, whereas liberty is a ‘naturalis
facultas eius quod caique facere libet.’ The truth is that slavery was a custom based upon the
needs not of a popular majority but of a ruling minority. Many customs, again, says Allen, are
so essentially local in origin that they cannot be said to arise from any widespread conviction….
The reason and utility on which (such) customs rest often arise from purely local conditions, and
not from any widespread Geist. In cosmopolitanism of commercial customs and many other
customs the Volkgeist loses much of its meaning.

According to Sir Henry Maine, (“Ancient Law”, (1897) “Custom is conception

posterior to that of Themistes or judgments.” Themistes were judicial awards which were
dictated to the King by the Greek goddess of justice. He explained, “Themistes, Themises, the
plural of Themis, are the awards themselves, divinely dictated to the judges.” Jethrow
Brown also maintains that, “Custom is often posterior to judicial decision…. Under the
pretence of declaring custom, judges frequently give rise to it.”

2. Analytical School:
Austin, one of the main priests of the Analytical school, denies customs the force of law
until they have been expressly recognized by the sovereign. This is consistent with his general
doctrine of sovereignty, for, without the cachet of supreme authority, custom cannot be
conceived as a command. To him a customary practice is to be regarded as a rule of positive
morality unless and until the legislature or a judge has given it the force of law. According to this
view, habitual observance of a custom, even though accompanied by a firm conviction of its
legally binding character, does not suffice to convert the custom into law; it is the recognition
and sanction of the sovereign which impress upon the custom the dignity of law. The sovereign
may abrogate custom. A custom is law only because the sovereign allows it to be so. Custom is a
source of law and not law itself. According to Austin, “A customary law may take the quality of
legal rule in two ways: It may be adopted by a sovereign or subordinate legislature and turned
into a law in the direct mode (statute law) or it may be taken as a ground of judicial decision,
which afterwards obtains as a precedent and in this case it is converted into a law after judicial
fashion. In whichever of these ways it becomes a legal rule, the law into which it is turned
emanates from the sovereign.”

Analytical theory has also been criticized by many scholars and jurists. According to
Allen, “custom grows up by conduct, and it is therefore a mistake to measure its validity solely
by the element of express sanction accorded by courts of law or by any other determinate
authority. The characteristic feature of the great majority of customs is that they are essentially
non-litigious in origin. They arise not from any conflict of rights adjusted by a supreme arbiter,
nor from any claim of meum against tuum, but from practices prompted by the convenience of
society and of the individual, so far as they are prompted by any conscious purpose at all.” He
further stated that, the starting-point of all custom is convention rather than conflict, just as the
starting-point of all society is cooperation rather than dissension. Vinogradoff also states that,
“It is not conflicts that initiate rules of legal observance, but the practices of every day directed
by the give-and take considerations of reasonable intercourse and social co-operation. Neither
succession, nor property, nor possession, nor contract started from direct legislation or from
direct conflict. Succession has its roots in the necessary arrangements of the household on the
death of its manager, property began with occupation, possession is reducible to de facto
detention, and the origin of contract goes back to the customs of barter. Disputes as to rights in
primitive society are pre-eminently disputes as to the application of non-litigious customs”

To conclude, both the theories contain some element of truth but that is only partial and
not the whole truth. Austin denies customs the force of law. He calls it a ‘positive morality’. But,
according to Allen, Austin ‘failed to explain satisfactorily why the body of rules which he
classified as ‘positive morality’… lacked the true characteristic of law.’ This is true, especially
when customs grow up by conduct and are derived from the common consciousness of the
people. Therefore, it is a mistake to measure its validity solely by the elements of express
sanction accorded by courts of law or by any other determinate authority. But it is also true that
many customs do not appear to be based on general conviction of their rightness or necessity, or
upon any real or voluntary consensus utentium. It also appears that the historical school has
undermined the creative role of the judges in molding and shaping the customs. In India,
especially, in order that a custom may have the force of law, it is necessary that it should satisfy
all the essentials or requirements of a valid custom.

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