LEGAL METHODS

NOTES
Semester A (2019)

Anjali Agarwal and Vedik Reddy Chittamuru

B.B.A. L.L.B. | 19 JGLS

 CONTENTS Pg.no.
I. Understanding the Law and Its Sources 3
a. Sources of Various Kinds of Law 3
b. Doctrine of Separation of Powers 4
i. Meaning 4
ii. Three Tier Machinery of State Government 4
iii. Significance 5
iv. Constitutional Status Of Separation Of Power In 5
India
6
II. Introduction to Legal Institutions and Processes
6
a. Predominant Legal Systems
6
b. Features and Factors for Determining A Legal System
7
c. Nanavati Case
7
i. Exception to The Abolishment of The Jury
7
ii. Distinction Between Trial by Judge and Trial by Jury
8
iii. Procedural Facts
9
iv. Questions of Law – The Grounds for Appeal
10
v. Caught the Difference?
11
vi. Ends of Justice?
11
vii. Giving Due Weight?
12
d. Types of Jurisdiction
12
i. Territorial
12
ii. Subject Matter/ Competence Based
13
e. Hierarchical Structure of The Courts
13
f. Types of Jurisdiction for Each Court
13
i. Original Jurisdiction
13
ii. Appellate Jurisdiction
14
iii. Advisory Jurisdiction
14
iv. Revisory Jurisdiction
14
g. Writs
15
h. Ultra Vires
17
III.Foundations Of Modern Law
17
a. CEDAW
17
b. Judicial Review (Art. 13 (1)) And Judicial Activism
17
i. Reasons/ Justifications for Judicial Activism-
18
ii. Pitfalls of Judicial Activism in India

19

1
IV. Legislation and Subordinate Legislation 19
a. Delegated Legislation 19
b. Conditional Legislation 20
c. Prospective Application Of Law 20
d. Retrospective Application Of Law
21
V. Canons of Statutory Interpretation 21
a. Key Subsidiary Rule Of Interpretation 21
b. What Is Statutory Interpretation? 21
i. Need 22
ii. Aids to Statutory Interpretation 22
iii. Intrinsic Aids 22
iv. Presumptions 23
c. Literal Approach 23
i. Disadvantages 24
ii. Advantages 24
d. The Golden Rule 24
e. Purposive Approach 25
i. Pepper V. Hart 26
f. Mischief Rule 26
i. Disadvantages 27
g. Logic And Legal Reasoning 32
i. Inductive Reasoning 32
ii. Deductive Reasoning (Syllogism)
33
VI. The Nature of Judicial Process and The Doctrine of Precedent 33
a. Doctrine Of Stare Decisis 34
b. Precedents: 34
i. Can Judges Deviate from Using Precedents? 34
ii. Example
36
VII. The Nature of Judicial Process and The Role of Lawyering 36
a. Distinction Between Ratio Decidendi And Obiter Dictum 36
i. Wambaughs’s Test 36
ii. Goodhart’s Test 37
b. Ratio 37
i. Advantages and Disadvantages 38
ii. How to Handle Ratios 38
c. Concept of Overruling 39
d. Concept of Res Judicata 39
i. Objective 40
41
VIII. How to Brief a Case Using I.R.A.C. Method

2
 UNDERSTANDING THE LAW AND ITS
SOURCES
Few direct questions, many application based.

Sources of Various Kinds of Law

Constitution
Statutes (legislation)
Statute book v law reports
Customs v agreements
Kinds of law
Enacted
Case law
Customary
Conventional
Primary sources of law are legislative and case law. They come from
official bodies. They include treaties, decisions of courts and tribunals,
statutes, regulations.
Secondary sources of law are background resources. They explain,
interpret and analyse. They include encyclopaedias, law reviews, treatises,
restatements. Secondary sources are a good way to start research and often
have citations to primary sources.

Sources of Various Kinds of Law

Legal writings that may help guide a court in reaching a decision, but which
are not binding. Examples of persuasive authority include opinions from
lower courts, opinions from courts in other jurisdictions, comments made
by higher courts as obiter dicta things said in a judgment that are not
essential to the decision and which are not binding precedent, dissenting
judgments and articles from legal journals
“The court noted the lack of either binding or persuasive authority on the issue
but considered certain cases which provided guidance.”

Analyse cases being read from different perspectives

Legal authority/historical facts
Authority v persuasion
Primary sources v secondary sources
Historical facts may be sources of law in an undetermined manner
Ultimate principles – constitution vis-à-vis parliament

3
Doctrine of Separation of Powers

Meaning

The definition of separation of power is given by different authors. But in

general, the meaning of separation of power can be categorized into three
features:

• Person forming a part of one organ should not form the part of other organs.
• One organ should not interfere with the functioning of the other organs.
• One organ should not exercise the function belonging to another organ.

The separation of power is based on the concept of trias politica. This principle
visualizes a tripartite(consisting of three parts) system where the powers are
delegated and distributed among three organs outlining their jurisdiction each.

Three Tier Machinery of State Government

It is impossible for any of the organs to perform all the functions systematically
and appropriately. So for the proper functioning of the powers, the powers are
distributed among the legislature, executive and judiciary. Now let’s go into the
further details of the functioning of each organ.

• Legislative

The main function of the legislature is to enact a law. Enacting a law expresses
the will of the State and it also acts as the wain(wagon/cart) to the autonomy of
the State. It is the basis for the functioning of executive and judiciary. It is spotted
as the first place among the three organs because until and unless the law is
framed the functioning of implementing and applying the law can’t be exercised.
The judiciary acts as the advisory body which means that it can give the
suggestions to the legislature about the framing of new laws and amendment of
certain legislation but cannot function it.

• Executive

It is the organ which is responsible for implementing, carrying out or enforcing

the will of the state as explicit by the constituent assembly and the legislature.
The executive is the administrative head of the government. It is called the
mainspring of the government because if the executive cracks-up, the government
gets exhausted as it leads to an imbalance. In the limited sense, executive
includes- head of the minister, advisors, departmental head and his ministers.

4
 • Judiciary

It refers to those public officers whose responsibility is to apply the law framed
by the legislature to individual cases by taking into consideration the principle of
natural justice, fairness.

Significance

As it is a very well-known fact that whenever a large power is given in the hand
of any administering authority there are higher chances of maladministration,
corruption and misuse of power. This doctrine helps prevent the abuse of
power. This doctrine protects the individual from the arbitrary rule.

Summarily, the importance can be encapsulated in the following points:

• Ending the autocracy, it protects the liberty of the individual.

• It not only safeguards the liberty of the individual but also maintains the
efficiency of the administration.
• Focus on the requirement of independence of the judiciary.
• Prevent the legislature from enacting an arbitrary rule.

Constitutional Status of Separation of power in India

Going through the provisions of Constitution of India one may be ready to say
that it has been accepted in India. Under the Indian Constitution:

Parliament ( Lok Sabha and Rajya Sabha)

Legislature
State legislative bodies
At the central level- President
Executive
At the state level- Governor
Judiciary Supreme Court, High Court and all other subordinate courts

5
 INTRODUCTION TO LEGAL INSTITUTIONS
AND PROCESSES
Predominant Legal Systems
French and Dutch introduced Civil law to Indo-China region and Indonesia
British introduced Common Law to India
Factors that may play a role in picking either of the systems:
- English Origin
- Socialist Origin
- Judicial Independence
- Inequality
Democracy/ Dictatorial role

When did India become a common law nation?

India became an independent democratic republic in 1947 and its constitution,
which came into force on 26th November 1949, is the supreme law. India
has a common law legal system whose infrastructure bears the influence of
British colonial rule.

Features and Factors for Determining a Legal System

Case: French Cour de Cassation case
1. Societies form laws and structures to establish and uphold those laws based
on their experiences, social uniqueness and aspirations. We have learnt of
the different philosophies to view law, the basic minimum of the law that
we apply, the structure and function of the forms of government, the
hierarchy of courts, how judges decide a case and what they write in it –
their reasoning and deliberations, fair chance to both sides to speak etc.
what is the difference between civil proceedings and criminal
proceedings(check differences document)
2. Law applying institutions- is a constant feature of law in every type of the
society and their existence is the defining characteristic of law, which
essentially means that these organs recognize and enforce laws previously
created by legislation, precedent, or custom. [distinction between making
a law and applying an existing one]
3. Law is a party system only if it is recognized by the courts. How do you
know when it is recognized? Through judgments -which contains reasons
and deliberations of the judges!!!
4. Normative systems means → that laws are themselves normative. They
guide the actions of the courts as much as the ordinary people. Their
existence is based on social practices, which is common to all positive
norms and does not detract from their normativity.

6
Nanavati Case

JURY:
Criticize jury and write why it was also useful (fast-track, time-bound criminal
trials as one cannot keep 12 jurymen sequestered and away from newspapers and
outside information and ask them to be present forever. It could also possibly lead
to- choice among prosecutors as to which matters to bring to trial, and which
matters to plea bargain.)
The jury system would require an active participative citizen jury conscious of its
civic duty and then it would come into question- how many people would be
willing to give away a month or two of their lives in order to sit and determine
another man’s fate. There would also be the question of jury selection and
sometimes majoritarian juries have been known to give verdicts in defiance of
the law and the Nanavati case could possibly be one of those.

Exception to the abolishment of the jury

The only exception to the abolition of juries are the Parsi Matrimonial Courts;
by a very discrete process during the 1960s, finishing with the 1973 Code of
Criminal Procedure, which is still in force today.

When and why was the jury abolished?

But trial by jury was understood as being one of the core liberties that
accompanied an Englishman wherever he went and without trial by jury, the
British trade and investment in India threatened to pull out.

The people were seen as influenced by the media (incorrect news reports), caste,
persuaded by religion instead of reason, language barriers prevailed (courts- only
English). They labour under many ‘influences that can take-away from their
impartiality. There was jury misdirection where they misunderstood the facts of
the case. People were from different backgrounds.

Jury wasn’t abolished because of Nanavati

Distinction between trial by judge and trial by jury

The key difference between a bench trial and a jury trial is whether or not there
is a jury to decide the outcome of the case or whether a judge makes a decision.
In all civil court cases, including those in which a jury makes a decision, a judge
must preside over the case. It is a judge’s job to answer legal questions, like what
instructions are given to the jury and what evidence is admissible during the court
proceedings and whether or not a witness can be asked a particular question.

7
If there is a jury, then it is the jury’s job to listen to the evidence presented, make
a decision about what facts are true or false, and determine what the right outcome
is based on how the law applies to those facts. The jury determines if a witness is
credible, while a judge determines if a witness’ testimony is admissible or not
based on the rules of evidence.
In a bench trial, however, there is no jury who listens to the evidence and decides
on the truth of each opposing party’s case. Instead, this becomes the job of the
judge as well. The judge will still make the key legal rulings about what kinds of
evidence can be admitted. However, the judge in a bench trial also makes the
kinds of decision the jury normally makes about whether the evidence is
convincing enough to warrant a verdict for the plaintiff or whether there is
sufficient doubt in the plaintiff’s case that the defendant should prevail.
Both parties have the same legal rights in both a trial by judge and a trial by jury.
In both cases, a plaintiff in a civil case has to prove his or her claims by a
preponderance of the evidence… which means having to prove the facts as
presented are more likely than not to be true. The difference comes down to who
makes a decision on how whether the plaintiff has proved his case
.

KM Nanavati – Case Preliminary

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 195 of

1960.
Appeal by special leave from the judgment and order dated March 11,
1960, of the Bombay High Court in Criminal Jury Reference No. 159 of
1959.
This appeal by special leave arises out of the judgment of the Bombay High
Court sentencing Nanavati, the appellant, to life imprisonment for the
murder of Prem Bhagwandas Ahuja, a businessman of Bombay.
This appeal presents the commonplace problem of an alleged murder by
an enraged husband of a paramour of his wife: but it aroused considerable
interest in the public mind by reason of the publicity it received and the
important constitutional point it had given rise to at the time of its
admission.

Procedural Facts

The appellant was charged under s. 302 as well as under s. 304, Part I, of
the Indian Penal Code 1860 and was tried by the Sessions Judge, Greater
Bombay, with the aid of special jury. The jury brought in a verdict of "not
guilty" by 8: 1 under both the sections; but the Sessions Judge did not agree
with the verdict of the jury, as in his view the majority verdict of the jury
was such that no reasonable body of men could, having regard to the

8
 evidence, bring in such a verdict. The learned Sessions Judge submitted
the case under s. 307 of the Code of Criminal Procedure to the Bombay
High Court after recording the grounds for his opinion. The said reference
was heard by a division bench of the said High Court consisting of Shelat
and Naik, JJ. The two learned Judges gave separate judgments but agreed
in holding that the accused was guilty of the offence of murder under s.
302 of the Indian Penal Code and sentenced him to undergo rigorous
imprisonment for life.

Questions of law – the grounds for appeal

(1) Under s. 307 of the Code of Criminal Procedure, the High Court should
decide whether a reference made by a Sessions Judge was competent
only on a perusal of the order of reference made to it and it had no
jurisdiction to consider the evidence and come to a conclusion whether
the reference was competent or not.
(2) Under s. 307(3) of the said Code, the High Court had no power to set
aside the verdict of a jury on the ground that there were mis-directions in
the charge made by the Sessions Judge.
(3) there were no mis-directions at all in the charge made by the Sessions
Judge; and indeed, his charge was fair to the prosecution as well to the
accused.
(4) The verdict of the jury was not perverse, and it was such that a
reasonable body of persons could arrive at it on the evidence placed before
them.
(5) In any view, the accused shot at the deceased under grave and sudden
provocation, and therefore even if he had committed an offence, it would
not be murder but only culpable homicide not amounting to murder.
In short, the argument may be put in three propositions, namely:

(i) the High Court rejects the reference as incompetent, if on the face of
the reference the verdict of the jury does not appear to be unreasonable,

(ii) if the reference is competent, the High Court can consider the evidence
to come to a definite conclusion whether the verdict is unreasonable or not,
and

(iii) the High Court has no power under s. 307 of the Code of Criminal
Procedure to set aside the verdict of the jury on the ground that it is vitiated
by mis-directions in the charge to the jury. – WHAT’S THE GROUND?

9
Justice Shelat

Shelat, J., having held that there were mis-directions to the jury, reviewed
the entire evidence and came to the conclusion that the accused was clearly
guilty of the offence of murder, alternatively, he expressed the view that
the verdict of the jury was perverse, unreasonable and, in any event,
contrary to the weight of evidence.

Justice Naik

Naik, J., preferred to base his conclusion on the alternative ground, namely,
that no reasonable body of persons could have come to the conclusion
arrived at by the jury. Both the learned Judges agreed that no case had been
made out to reduce the offence from murder to culpable homicide not
amounting to murder. The present appeal has been preferred against the
said conviction and sentence.

S. 307

If in any such case the Judge disagrees with the verdict of the jurors, or of
a majority of jurors, on all or any of the charges on which any accused
person had been tried, and is clearly of opinion that it is necessary for the
ends of justice to submit the case in respect of such accused person to the
High Court, he shall submit the case accordingly, recording the grounds of
his opinion, and, when the verdict is one of acquittal, stating the offence
which he considers to have been committed, and in such case, if the
accused is further charged under the provisions such charge as if such
verdict had been one of conviction.
In dealing with the case so submitted the High Court may exercise any of
the powers which it may exercise on an appeal, and subject thereto it shall,
after considering the entire evidence and after giving due weight to the
opinions of the Sessions Judge and the jury, acquit or convict such
accused of any offence of which the jury could have convicted him upon
the charge framed and placed before it; and, if it convicts him, may pass
such sentence as might have been passed by the Court of Session.

Caught the difference?

It is, therefore clear that there is an essential difference between the scope
of the jurisdiction of the High Court in disposing of an appeal against a
conviction or acquittal, as the case may be, in a jury trial, and that in a case
submitted by the Sessions Judge when he differs from the verdict of the
jury: in the former the acceptance of the verdict of the jury by the sessions
Judge is considered to be sufficient guarantee against its perversity and

10
 therefore an appeal is provided only on questions of law, whereas in the
latter the absence of such agreement necessitated the conferment of a
larger power on the High Court in the matter of interfering with the verdict
of the jury. – WHAT IS THIS LARGER POWER?

Ends of justice?

The words "for the ends of justice" are comprehensive, and coupled with
the words "is clearly of opinion", they give the Judge a discretion to enable
him to exercise his power under different situations, the only criterion
being his clear opinion that the reference is in the ends of justice.
But the Judicial Committee, in Ramanugrah Singh v. King Emperor,
construed the words "necessary for the ends of justice" and laid down that
the words mean that the Judge shall be of the opinion that the verdict of the
jury is one which no reasonable body of men could have reached on the
evidence.

Subject thereto?

Makes it seem like only the powers an appellate court can be used.
S. 423 “Nothing herein contained shall authorise the Court to alter or
reverse the verdict of a jury, unless it is of opinion that such verdict is
erroneous owing to a misdirection by the Judge, or to a misunderstanding
on the part of the jury of the law as laid down by him."
Therefore, a reasonable construction will be that the High Court can
exercise-any of the powers conferred on an appellate court under s. 423 or
under either section of the Code which are appropriate to the disposal of a,
reference under s. 307. The object is to prevent miscarriage of the justice
by the jurors returning erroneous or perverse verdict.

Giving due weight?

The High Court shall give weight to the verdict of the jury; but the weight
to be given to a verdict depends upon many circumstances-it may be one
that no reasonable body of persons could come to; it may be a perverse
verdict; it may be a divided verdict and may not carry the same weight as
the united one does; it may be vitiated by mis-directions or non-directions.
How can a Judge give any weight to a verdict if it is induced and vitiated
by grave mis-directions in the charge? That apart, the High Court has to
give due weight to the opinion of the Sessions Judge. The reasons for the
opinion of the Sessions Judge are disclosed in the case submitted by him
to the High Court. If the case stated by the sessions Judge disclosed that
there must have been mis-directions the charge, how can the High Court
ignore them in giving due weight to his opinion? What is more, the

11
 jurisdiction of the High Court is couched in very wide terms in sub-s. (3)
of s. 307 of the Code: it can acquit or convict an accused. It shall take into
consideration the entire evidence in the case; it shall give due weight to
the opinions of the Judge and the jury; it combines in itself the functions
of the Judge and jury; and it is entitled to come to its independent opinion.
The phraseology used does not admit of an expressed or implied limitation
on the jurisdiction of the High Court.

Types of Jurisdiction

Territorial
Territorial jurisdiction refers to jurisdiction over cases arising in or involving
persons residing within a defined territory. It can also be the territory over
which a government, one of its courts, or one of its subdivisions has
jurisdiction. If a court does not have territorial jurisdiction over the events or
persons within it, then the court will not be able to bind the defendant to an
obligation or adjudicate(make a formal judgement on a disputed matter) any
rights involving them. Territorial jurisdiction can be waived, even
unintentionally, by a defendant.

Subject matter/ competence based

The power of a court to adjudicate a particular type of matter and provide
the remedy demanded. A court must have jurisdiction to enter a valid,
enforceable judgment on a claim. Where jurisdiction is lacking, litigants, through
various procedural mechanisms, may retroactively challenge the validity of a
judgment.

12
Hierarchical Structure of The Courts

Types of Jurisdiction for Each Court

1. Original Jurisdiction:

A court is said to have original jurisdiction when it possesses the authority to hear
and determine the case in the first instance. This type of jurisdiction has been
dealt with in Article 131 of the Constitution.

The Supreme Court of India possesses original and exclusive jurisdiction in

any dispute:

(a) Between the Government of India, and one or more states or

(b) Between the Government of India and any state or states on one side and one
or more other states on the other or

(c) Between two or more states

2. Appellate Jurisdiction

It is the power to grant special leave to appeal against the judgement delivered by
any court in the country. It is a court of appeal which means that it is a court

13
which may change the decision or reduce the sentence passed by the lower courts.
The Supreme Court is the final court of appeal.

3. Advisory Jurisdiction

The Supreme Court has advisory jurisdiction and hence can give its opinion on
any question of law or fact of public importance as may be referred to it for
consideration by the President.

4. Revisory Jurisdiction

The Supreme Court is empowered to review any judgement or order made by it

with a view of removing any mistake or error that might have crept into the
judgement or order.

Writs
A writ is a form of written command in the name of a court or other legal
authority to act, or abstain from acting, in a particular way.
Article 32(2) provides for the writ jurisdiction of the Supreme Court in India.
Similarly, writ jurisdiction for High Courts is provided as to issue to any person
or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for
the enforcement of any of the rights conferred by Part III and for any other
purpose.

Against whom can a writ be issued?

It’s a duty of the state to not abridge a person from the fundamental rights
provided to him by the Constitution, hence a writ can be enforced against the
State (as defined under Article 12 of the Constitution). But some fundamental
rights such as rights under Article 17, 21, 23 and 24 are also available against
private individuals hence writs can be enforced against violation of such rights
by private persons.

Who can approach Court under writ jurisdiction?

The general principle is that the locus standi (the right or capacity to bring an
action or to appear in a court) to approach the Supreme Court or High Court for
enforcement of rights belongs to the person whose fundamental rights have
been infringed. In common law, by the way of Public Interest Litigation (PIL)
the locus standi to approach the court has been relaxed and stretched to a public-
spirited third party.

14
What are the different writs enshrined in the Constitution?

The Supreme Court and High Courts shall have the power to issue directions or
orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto, and certiorari, whichever may be appropriate, for the
enforcement of any of the rights[ii] in part III of the Constitution. Hence, the five
writs are,

Writs Origin Meaning

1. habeas corpus Latin You may have the body
2. mandamus Latin We command
3. prohibition English To stop/ forbid
4. quo warranto Latin By what authority
5. certiorari Latin To be Certified

Ultra Vires
Refer:
1. Zee Telefilm v. Union of India
2. Dr. Janet Jeyapaul v. SRM University

The word “Ultra vires” is a Latin term which means "beyond the powers of" and
is commonly used to refer to the acts undertaken by a corporation or its officers,
which are outside the powers granted to them under law or corporate charter. The
historical existence of the Doctrine of Ultra Vires can be traced back to the period
of 1855.

The doctrine of ultra vires is the basic doctrine in administrative law. The
doctrine envisages that an authority can exercise only so much power as is
conferred on it by law. An action of the authority is intra vires when it falls within
the limits of the power conferred on it but ultra vires if it goes outside this limit.
The doctrine of ultra vires has two aspects: substantive and procedural.

When a piece of delegated legislation is declared to be ultra vires, it is void and

becomes unenforceable. It cannot affect the rights and duties of any person. Until
a rule is declared invalid by a court, it is presumed to be valid. If the valid and the
invalid parts of a rule can be severed, only then the invalid portion of the rule is
quashed and the valid portion can continue to remain operative. However, if the
valid and the invalid parts are inextricably mixed up, then the entire rule has to
go. A void rule cannot be the basis of any administrative action. No one can be

15
prosecuted under a void rule. The validity of a rule can be challenged in a court
either directly or collaterally, or by way of defense to a civil claim based on the
impugned(called into question) rule, or as a defense in a prosecution for
infringing the rule. A person can challenge the validity of administrative action
by challenging the validity of the relevant rule. A person whose interest is
affected adversely by a piece of delegated legislation can directly challenge its
vires in a court. The court may grant an injunction or declaration or issue
mandamus or award damages to the affected person as may be suitable.

If the subordinate or delegated legislation goes beyond the scope of authority

conferred on the delegate or it is in conflict with the parent or enabling act, it is
called substantive ultra vires. The validity of the subordinate or delegated
legislation may be challenged before the Courts on this ground.

16
 Foundations of Modern Law

Cases:
1. M.C. Mehta v Union of India
2. Rylands v Fletcher
3. Priestly v Fowler
4. Vishaka and Ors v State of Rajasthan
5. D.K. Basu v State of West Bengal

CEDAW
• Convention on the Elimination of All Forms of Discrimination Against
Women, New York, 18 December 1979.
• The convention was open for signature at the united nations headquarters
on 1st March 1980.
• India signed on 30 July 1980 and ratification, accession and succession on
09 July 1993.
• There are three foundational principles of the CEDAW convention. These
are non-discrimination, substantive equality, and state obligation.
• CEDAW legally binds all States Parties to fulfil, protect and respect
women's human rights – this means that States are responsible not just for
their own actions, but also for eliminating discrimination that is being
perpetrated by private individuals and organizations.

Judicial review (art. 13 (1)) and Judicial Activism

Judicial activism refers to judicial rulings that are suspected of being based on
personal opinion, rather than on existing law. It is sometimes used as an antonym
of judicial restraint. The definition of judicial activism and the specific decisions
that are activist are controversial political issues.

Reasons/ justifications for judicial activism-

1. To alleviate the suffering of the masses, where judges participate in social

reforms.
2. Where the legislative vacuum is left open, where law is not sufficient to
the changing social needs.
3. to implement the Constitutional scheme by taking an active role to
implement the provisions of the Constitution
4. To restore public confidence in the judiciary and e.g.- of Vishaka
judgement (sexual harassment)

17
5. To deal with the political role played by the judiciary (just like other
branches) such as:
o Near collapse of the responsible government, which warrants the judiciary
to step in as and to take drastic and unconventional steps.
o When the legislature fails to make necessary legislation to suit the
changing times leading to erosion in confidence in the Constitution and
democracy among citizens.

Pitfalls of judicial activism in India

• Intrusive and ubiquitous that virtually dominates the institutions of

government.
• Majoritarianism- when the court substitutes its own public policy
preferences.
• Disrupts interpretive stability- especially when the court weakens a
precedent without formally overruling it.
• No interpretive fidelity- when the court does not comply with the rules of
Interpretation.
• Alternative policy maker- court substitutes it own policy in alternative to
the current policy laid down by the Legislature.
• No consistency as to how courts have been interpreting laws.

18
 LEGISLATION AND SUBORDINATE LEGISLATION

Delegated Legislation

Delegated legislation also referred to as secondary legislation, is legislation made

by a person or body other than Parliament. Parliament, through an Act of
Parliament, can permit another person or body to make legislation. An Act of
Parliament creates the framework of a particular law and tends only to contain an
outline of the purpose of the Act. By Parliament giving authority for legislation
to be delegated it enables other persons or bodies to provide more detail to an Act
of Parliament.
Importance:
• Avoids overloading
• Allows law to be made by those who have the relevant expert knowledge.
• Flexibility
• Emergency

Conditional Legislation

It refers to the power of legislation, exercised by leaving it to the discretion of an

external authority, the time and manner of carrying its legislation authority into
effect along with the determination of the area to which it is to be extended.
Conditional Legislation refers to laws for which the Legislation broadly lays
down the principles and functions to be performed by them. The pre- defined
guidelines prevent the excessive delegation of power as the delegates can only
impose the law within the boundaries established by the Legislature itself.

The supreme court has divided the conditional legislation into 3 categories:
1. The applicability of the law structured by the Legislation.
2. The temporary withdrawal of the conditional laws, which have already
come into force, in a given area or in given cases so as not to be applicable
to a given class of persons who are otherwise admittedly governed by the
Act.
3. The exercise of conditional legislation would depend upon satisfaction of
the delegate on objective facts placed by one class of persons seeking
benefit of such an exercise with a view to deprive the rival class of persons
who otherwise might have already got statutory benefits under the Act and
who are likely to lose the existing benefit because of exercise of such a
power by the delegate.

19
Prospective Application of Law
• The dictionary meaning of the word prospective with reference to statutes shows
that it is concerned with or applying the laws in future or at least from the date of
commencement of the statute. Normally, an enactment is prospective in nature.
It does not affect which has gone, or completed and closed up already.
• The presumption with respect to the enactment is that, unless there is something
in it to show that it means otherwise, it deals with future contingencies and does
not annul or affect existing rights and liabilities

Retrospective Application of Law

• A retrospective law operates forwards, but it looks backwards in that it attaches
new consequences for the future to an event that took place before the statute was
enacted.
• It creates a new obligation or imposes a new duty in regard to events already
past.
• A retrospective operation is not given to a statute, so as to impair an existing
right or obligation, otherwise than as regards matters of procedure unless that
effect cannot be avoided without doing violence to the language of the enactment.
If the enactment is expressed in a language which is capable of either
interpretation, it ought to be construed prospectively.

Cases:
1. Sudheer v. bar council of India- they will give us a fact pattern and ask
about the fact pattern
▪ A fact pattern or fact situation is a summary of the key facts of a
particular legal case, presented without any associated discussion of
their legal consequences. For example, at common law, "Murder is
the killing of another human being with malice aforethought and
without justification or excuse."
2. State of Tamil Nadu v. Sabanayagam and another (1998) SCC 318
(conditional legislation)
3. Soni Babubhai v. State of Gujarat (prospective application of criminal
statutes)

20
 CANONS OF STATUTORY INTERPRETATION
Key Subsidiary Rule of Interpretation- Principle of Harmonious
Construction

A statute must be constructed to make it effective and workable. When there is a

conflict between two or more statutes or two or more parts of a statute then the
rule of harmonious construction needs to be adopted. The rule follows a very
simple premise that every statute has a purpose and intent as per law and should
be read as a whole. The interpretation consistent of all the provisions of the statute
should be adopted. In the case in which it shall be impossible to harmonize both
the provisions, the court’s decision regarding the provision shall prevail.

The language of our statute is well known: “Whoever shall willfully take the life
of another shall be punished by death.” This is done, the justice will be
accomplished without impairing either the letter or spirit of our statutes and
without offering any encouragement for the disregard of law.

What is Statutory Interpretation?

• It is the process by which courts interpret and apply legislation in specific
cases.
• To find the meaning of statutes, judges use various tools and methods of
statutory interpretation, including traditional canons of statutory
interpretation, legislative history, and purpose.
• Courts may apply rules of statutory interpretation to primary legislation or
to subsidiary legislation.

Need
1) No legislation unambiguously and specifically addresses all matters.
Legislation may contain uncertainties for a variety of reasons:
• Words are imperfect symbols to communicate intent. They are
ambiguous and change in meaning overtime.
• Unforeseen situations are inevitable – situations may arise that were
never predicted.
2) therefore, the court must try to determine how a statute should be enforced.
This requires statutory construction.
3) It is a tenet(principle) of statutory construction that the legislature is
supreme (assuming constitutionality) when creating law and the court is
merely an interpreter of the law. Nevertheless, in practice, by performing the
construction the court can make sweeping changes in the operation of the law.

21
Aids to Statutory Interpretation

• To assist judges in interpreting statutes, there exist various aids that they
may refer to.
• Aids to statutory interpretation are divided into internal aids and external
aids.
• These are sometimes referred to as intrinsic aids and extrinsic aids to
interpretation.

Intrinsic Aids

Internal aids are those contained in the statute itself and consist of:

• The long title of the Act

• Explanatory notes
• Other sections of the Act
• Definition sections in the Act
• Presumptions
• Rules of Language

Extrinsic Aids

• Dictionaries
• Textbooks
• Academic writings
• Law Commission Reports
• Case law from other jurisdictions
• Legislative history

Presumptions

Where a statute does not expressly provide otherwise, it is presumed the

following apply:

• Statutes do not operate retrospectively

• Existing rights are not to be interfered with
• Statutes do not change the common law
• mens rea is required for criminal liability

Sweet v Parsley [1970] AC 132 House of Lords- A school teacher let her
house out to students. The students were smoking cannabis in the house.
She was unaware of this activity. She was charged with an offence of being
concerned with the management of premises which were being used for
the purposes of smoking cannabis contrary to s.5(6) of the Dangerous
Drugs Act 1965. The statute did not state any requirement of mens rea of
the offence.

22
 Held: The House of Lords looked at the common law before the statute
was made. The common law required knowledge of the activities in order
to impose liability. Thus, the presumption that statutes do not change the
common law was applied in addition to the presumption that mens rea is
required where the offence is a true crime as oppose to a regulatory offence.

Literal approach
When a statute is clear and unambiguous, courts should give effect to the literal
meaning of the words of the statute.

In Commonwealth v. Staymore the defendant was convicted under a statue

making it a crime to leave one’s car parked in certain areas for a period longer
than two hours. The defendant had attempted to remove his car but was prevented
from doing so because the streets were obstructed by a political demonstration in
which he took no part and which he had no reason to anticipate. His conviction
was set aside by this Court, although his case fell squarely within the wording of
the statute.

1) R v. Harris (1836): The defendant bit off his victim’s nose. The statute
made it an offence to “stab, cut, or wound.” The court held that under the
literal rule the act of biting did not come within the meaning of stab, cut,
or wound as these words implied an instrument had to be used. Thus, the
defendant’s conviction was overturned.

2) Fisher v. Bell (1961): The defendant had a flick knife displayed in his shop
window with a price tag on it. Statute made it a criminal offence to “offer”
such flick knives for sale. His conviction was overturned as goods on
display in shops are not “offers” in the technical sense under contract law
but rather merely an invitation to begin the negotiation process. The court
applied the literal rule of statutory interpretation.

3) Whitely v. Chappel (1868): A statute made it an offence “to impersonate

any person entitled to vote.” The defendant used the vote of a dead man.
The statute relating to voting rights required a person to be living in order
to be entitled to vote. The court applied the literal rule and thus acquitted
the defendant.

Disadvantages
• There can be disagreement as to what amounts to the ordinary or natural
meaning of a word
• Creates loopholes in the law
• Can lead to injustice

23
 • Example of London and North Eastern Railway v. Berriman (1946): A
railway worker was killed while oiling the track. A statute provided
compensation payable on death for those “relaying or repairing” the track.
Under the literal rule oiling did not come under either of these categories
so the worker’s widow received no compensation.
• Fails to recognize the complexities and limitations of the English language
Advantages
• Restricts the role of the judge
• Provides no scope for judges to use their own opinions or prejudices
• Upholds the separation of powers (judiciary not supposed to be making
laws, this is the legislature’s job)
• Recognizes Parliament as the supreme law maker

The Golden Rule

• Like the literal rule, the “Golden Rule” gives the words of a statute their
plain, ordinary meaning. However, when this may lead to an absurd or
irrational result that is unlikely to be the legislature’s intention, the golden
rule dictates that a judge can depart from this meaning.
• In the case of homographs(where a word can have more than one meaning),
the judge can choose the preferred meaning; if the word has only one
meaning, but applying this would lead to an absurd result, the judge can
apply a completely different meaning.
Cases:
• R v. Allen (1872): The defendant was charged with the offence of bigamy.
The relevant statute stated that “whosoever being married shall marry any
other person during the lifetime of the former husband or wife is guilty of
an offence. Under a literal interpretation of this statute the offence would
be impossible to commit since civil law would not recognize a second
marriage and any attempt to marry in such circumstances would not be
recognized as a valid marriage. The court applied the golden rule and held
that they word “marry” should be interpreted as “go through a marriage
ceremony.” Thus, the defendant’s conviction was upheld.
• Adler v. George (1964): Under a given statute it was an offence to obstruct
a member of the armed forces “in the vicinity” of a prohibited place. The
defendant was actually in the prohibited place rather than merely “in the
vicinity” of it, at the time of the obstruction. The court applied the golden
rule, reasoning that it would be absurd for a person to be liable if they were
near to a prohibited place and not if they were actually in it. The
defendant’s conviction was therefore upheld.
Purposive approach- courts should interpret the words of a statute in light of
the purpose behind it. Please read the House of Lords decision in Pepper v. Hart
[1993] AC, 573 (next page)

24
The purposive approach is an approach to statutory interpretation according to
which courts interpret a statute in light of the purpose for which it was enacted
(this approach evolved as a replacement to the mischief rule and is thus very
similar to it).
• The purposive approach readily embraces the use of extrinsic aids to assist
in finding Parliament’s intention (eg drafts, committee reports, debate
proceedings).
• The purposive approach is in direct contrast to textualism (an
outgrowth of the literal rule), which says that courts should focus only
on the ordinary meaning of the words of a statute rather than inquiring
about the intention or purpose of Parliament when it passed the statute.
• It is a flexible approach which allows judges to develop the law in line
with Parliament’s intention.
• It allows judges to cope with situations unforeseen by Parliament.
Pepper v. Hart
• The taxpayers who were members of staff of a fee-paying public school,
were higher-paid employees for the purposes of section 61 of the Finance
Act 1976. The school operated a concessionary fees scheme that enabled
the taxpayers, as members of the staff, to have their sons educated at one-
fifth of the fees charged to parents of other pupils. Under the terms of the
scheme the school had an absolute discretion whether to admit any boy and
it could withdraw the concession at any time. During the relevant years the
school had surplus pupil capacity and was thus able to take the sons of the
taxpayers without turning away other boys able to satisfy the educational
entry requirement. The taxpayers were assessed to Schedule E income tax
for the years from 1983-84 to 1985-86 on the basis that under the
concessionary scheme they had received benefits that were to be treated as
"emoluments" of their employment under section 61 of the Act of 1976,
the cash equivalent of such benefit being chargeable to income tax in
accordance with the provisions of section 63 of the Act. On appeals against
the assessments, the taxpayers having conceded that they had received an
emolument as a result of participating in the concessionary fees scheme but
maintaining that the cash equivalent of the benefit had to be determined
under the principle of marginal costing, the special commissioner found
that the school incurred no additional expenditure in educating the
taxpayers' sons other than on certain items of equipment and *594 on food
that together cost less than the concessionary fees paid and allowed the
appeals. The judge allowed an appeal by the Crown, holding that the cash
equivalent of the benefit was a ratable proportion of the overall expenditure
incurred by the school on providing its facilities to all of the pupils. On
appeal by the taxpayers the Court of Appeal dismissed the appeals.

25
 • On appeal by the taxpayers, the Appellate Committee having heard the
appeal but before judgment referred it to an enlarged Appellate Committee
to determine the question whether the existing exclusionary rule relating to
the construction of statutes should be relaxed so as to enable Hansard to be
consulted as an aid to construction.

Mischief Rule- Courts should interpret a statute so as to suppress the mischief

and advance the remedy of the statute. DOUBLE TAXATION; mention it with
reference. Read Bengal Immunity Co. v. Union of India, (AIR 1955 SC), para.
31; read also S K Batra v. Union of India, (2007) 3 SCC 169 on why courts should
reject interpretation which lead to absurd results (examine the interpretation of
the term ‘shared household’- Section 2(s) states: "`shared household` means
a household where the person aggrieved lives. Supreme Court of India. Section
17 in The Protection of Women from Domestic Violence Act, 2005. The Act
protects all women in domestic relationships who are living alone or
together or have lived, at any point of time, in a shared household with the
respondents. A domestic relationship includes a relation by
blood, adoption, marriage as well as relationships in nature of
marriage. Members of a joint family also come within the meaning of a domestic
relationship under the Act. While all other relations can be easily deciphered, a
relation “in the nature of marriage” needs further clarification.)
Corkery v. Carpenter (1951): The defendant was riding his bicycle while under
the influence of alcohol. Section 12 of the Licensing Act 1872 made it an offence
to be drunk in charge of a “carriage” on the highway. The court applied the
mischief rule and held that riding a bicycle was within the mischief of the Act as
the defendant represented a danger to himself and other road users.

Disadvantages:
• Can create a crime after the fact, thus infringing the rule of law
• Gives judges a law-making role, infringing the separation of powers
• Judges can bring their own views, sense of morality, and prejudices to a
case
• In the 16th century when the rule was established, the judiciary would often
draft acts on behalf of the king and were therefore well versed on what
mischief the law was meant to remedy. This is not the case in most modern
legal systems
• Sometimes the mischief can be hard to identify, leading to uncertainty in
the law
T.N. Godavarman Tirumulkpad V. Union of India. And Overview of the Judges
Appointment cases (viz., S.P Gupta v. Union of India 1981 Suppl. SCC 87; Supreme
Court Advocates-on-Record Association (1993) 4 SCC 441; and Third Judges case
(1998), concerning interpretation of the word ‘shall always be consulted’-Extracts
provided

26
Logic and Legal Reasoning
Relevant portions which cite the case of MacPherson v Buick Motor Co.

27
28
29
Lord Macmillan

30
Opinion of Lord Atkin
THE NEIGHBOUR PRINCIPLE “The rule that you are to love your
neighbour becomes in law,
you must not injure your neighbour; and the lawyer’s question,
Who is my neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
Who, then, in law is my neighbour? The answer seems to be –
persons who are so closely and directly affected by my act that
I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions
which are called in question.” (Lord Atkin)
“The categories of negligence are never closed” (Lord Macmillan)

31
Logic and Legal reasoning

Inductive Reasoning- logically may be correct but realistically it may not be

correct
Eg: Socrates is a man and is mortal
Plato is a man and is mortal
Aristotle is a man and is mortal
Therefore, probably all men are mortal.
Induction is an argument suggesting that the conclusion may follow from the
premises, but not necessarily.

Deductive reasoning (syllogism)- general to specific.

Eg: all men are mortal.
Socrates is a man
Therefore, Socrates is a mortal

The first two terms are called premises, major and minor respectively, and the
last term is the conclusion. The particular form of expressing arguments in terms
of premises and conclusion is called the syllogism. Syllogism come in different
varieties, depending on the way the premises are stated. Deduction is, simply
stated, an argument suggesting that a conclusion must follow from the given
premises.

A syllogism consists of a major premise, a minor premise and a conclusion. The

major premise usually states a general rule, which often is a statement of law. A
minor premise makes a factual assertion about a particular person or thing or a
group of persons or things, which is often the statement of fact. A conclusion
connects the particular statement in a minor premise with the general one in the
major premise, and tells how the general rule applies to the facts at hand.

32
 The Nature of Judicial Process and The Doctrine of
Precedent
Doctrine of Stare decisis
As a general principle the decision of an administratively superior court is
controlling over inferior courts. This doctrine is widely called stare decisis. Stare
decisis literally means, “stand by the decision”. Stare decisis ensures
predictability, stability and consistency of results, which is an inherent feature of
rule of law.

The Indian judiciary has a typical pyramidal structure with numerous trial courts
(including district courts and mofussil courts), various High Courts in the states
and the Supreme Court at the apex. This Common Law concept is embodied in
the Indian Constitution. Article 141 of the Constitution of India provides that the
law declared by the Supreme Court shall be binding on all courts within the
territory of India. To understand the scope of stare decisis in India, read Bengal
Immunity Co. v. Union of India AIR 1955 SC 631. This case discusses the issue
whether the Indian Supreme Court is bound by its own decisions.

The decision of a higher court within the same provincial jurisdiction acts
as binding authority on a lower court within that same jurisdiction.
- The principle of stare decisis can be divided into two components:
i. The first is the rule that a decision made by a superior court is
binding precedent (also known as mandatory authority) which an
inferior court cannot change.
ii. The second is the principle that a court should not overturn its
own precedents unless there is a strong reason to do so and should
be guided by principles from lateral and inferior courts. The
second principle, regarding persuasive precedent, is an advisory
one which courts can and do ignore occasionally.
- For the doctrine of stare decisis to be applicable, there are two basic
prerequisites:
i. first that there must be authentic reporting of decisions of courts.
ii. The second requirement is an established hierarchy of courts.

Furthermore, the doctrine of stare decisis is:

• Reason of the decision.
• Principle or principles deduced from authority in which court reached its
decision; or negatively, the principle without which the court would not
have reached the decision that it did reach.

33
 • Based on material fact of the case and the decision thereon.
• Involves a process of abstraction from totality of facts that occurred in it.
• The reason for the decision ratio decidendi forms the groundwork of an
authoritative precedent.

Cases:
1. Read the provided excerpts of Zee Telefilms Ltd. v. Union of India, AIR
2005 SC 2677 – What is a state?
2. Please read Director of Settlements, A.P v. M.R. Appa Rao, AIR 2002 SC
1598.

Precedents:
• The ratio decidendi forms the binding precedent of a case
• All other legal statements, statements etc. are the obiter dicta
• Dissenting opinions of higher courts especially SC are not binding but have
high persuasive value
• Under Article 141, SC can bind all lower courts by its orders but not itself
as clarified in Bengal Immunity case

Can Judges deviate from using precedents?

• There can be ways through which precedents may be overruled or judges
may choose to deviate from using the precedent.
• In extraordinary circumstances a higher court may overturn or overrule
mandatory precedent but will often attempt to applying the precedent
before overturning it, thereby limiting the scope of the precedent.
The first is called per incuriam(through lack of care). Here due to a significant
oversight, an important statute was overlooked, and this affected the decision
significantly. In other words, per incuriam means that a court failed to consider
all the relevant and vital statutes or case authorities and that this had a major
effect on the decision. Held in: Young v. Bristol Airplane
• The second is called Sub silentio- Precedents that pass sub silentio are of
little or no authority. This is another exception to the binding precedent. A
judgment said to be sub silentio when a proposition was not the subject
matter of argument. Hence the ruling does not hold on such matter.
Decision on a question which has not been argued cannot be treated as
precedent. Held in: M/s. Goodyear India Ltd. v. State of Haryana and
another.

Example
The Court may consciously decide in favor of one party because of point A, which
it considers and pronounces upon. It may be shown, however, that logically that
the Court should not have decided in favor of the party unless it's also decided

34
point B in his favor; but point B was not argued or considered by the Court. In
such circumstances, although point B was logically involved in the facts and
although the case had a specific outcome, the decision is not an authority on point
B. Point B is said to pass sub-silentio.
Another relief available to a judge who wishes to avoid following a previous
decision which they would otherwise be bound to follow is called distinguishing.
When a judge finds the material facts (or questions of law) of the present case to
be sufficiently different from the earlier case he may distinguish the two cases
and refuse to follow the earlier decision. Held in: UOI v. K.S. Subramanian. An
advantage of distinguishing is that it helps to keep judicial precedent and the law
flexible.

35
THE NATURE OF JUDICIAL PROCESS AND THE ROLE OF
LAWYERING

One of the critical skills of a lawyer is the ability to select a relevant legal
authority for a particular proposition of law. Lawyers are often called upon to
advise clients/courts whether the decision in a previous case lays down any
authoritative precedent so as to be binding on future cases. This requires lawyers
to identify and distinguish between the part of a judgment that represents binding
authority (the ratio decidendi) and the part that represents persuasive authority
(the obiter dictum). This class will provide the skills required to make these
determinations.

Distinction between ratio decidendi and obiter dictum

Ratio decidendi can be translated as the reason for the decision and is best
understood as the essential point of law arising from the decision which
subsequent courts will be required to follow. Please read ‘Goodhart’s test’ and
‘Wambaugh’s reversal test’.
Wambaughs’s Test: (Reversal test) The inversion test propounded by
Wambaugh is based on the assumption that the ratio decidendi is a general
rule without which a case must have been decided otherwise. Inversion test
is in a form of dialogue between him and his student. He gave following
instructions for this;
1. Frame carefully the supposed proposition of law.
2. Insert in the proposition a word reversing its meaning.
3. Inquire whether, if the court had conceived this new proposition to be
good and had it in mind, the decision could be the same.
4. If the answer is affirmative, however excellent the original proposition
may be, the case is not a precedent for that proposition.
5. But if the answer is negative, the case is a precedent for the original
proposition and possibly for other propositions as well.
Thus, when a case turns on one point the proposition or doctrine of the
case, the reason for the decision, the ratio decidendi, must be a general rule
without which the case must have been decided otherwise. A proposition
of law which is not ratio decidendi under the above test must, according to
Wambaugh, constitute a mere dictum.
Goodhart’s test: (Material Facts) In 1929, Goodhart had argued that the
ratio of the case must be in the reasons for the decision and there is no
necessary connection between the ratio and the reasons. He laid down
following guidelines for discovering the ratio decidendi of the case:
1. Ratio decidendi must not be sought in the reasons of which the judge has
passed the decision.

36
 2. The reasons given by the judge are of peculiar importance, for they may
furnish us with a guide for determining which facts he considered material
and which immaterial.
3. A decision for which no reasons are given does not necessarily lack ratio,
furthermore, the reasons offered by the court in reading a decision might
be considered inadequate or incorrect, yet the court’s ruling might be
endorsed in later cases- a bad reason may often make good law. It is by his
choice.
4. Thus, ratio decidendi is whatever facts the judge has determined to be the
material facts of the case, plus the judge’s decision based on those facts of
the material facts that the judge creates law. Goodhart test of ratio is: ratio
decidendi = material facts + decision. Goodhart states that "It is by his
choice of material facts that the judge creates law." The Goodhart test
involves taking into account facts treated as material by the judge who
decided the case cited as precedent.

Obiter dicta can be understood as all the parts of a judgment that are capable of
being statements of law but that do not form part of the ratio decidendi. This is
the non-binding part of a decision.

Ratio
How to determine ratio?
• Thus, ratio decidendi is whatever facts the judge has determined to be the
material facts of the case, plus the judge’s decision based on those facts of
the material facts that the judge creates law.
• Finding a ratio decidendi depends on a process of abstraction from the
totality of facts that occurred in it.
• The process is carried to progressively higher flights.
• The higher (broader/more general) the abstraction, the wider the ratio.
• From telling a lie that is likely to cause fright which is a lower abstraction
to doing anything with an intent to affect the plaintiff’s mind or body which
is higher as in this case, the judge did not confine his judgment to lies but
spoke only of willfully doing an act which is calculated to and does cause
harm. This would include acts like lying or anything else too. (Wilkinson
v. Downton)

Advantages and Disadvantages

• Stresses the point that a proposition of law is authoritative only to the
extent to which it is relevant to the facts in issue in the case.
• We cannot always rely on the judge’s reasoning in a case. This is likely to
happen where the judge supports his decision with arguments of policy and
justice.

37
 • The only drawback of the test is that the test is not in actual use by the
judges because it is difficult to always rely on material facts of the case in
order to elicit a ratio.
• Depends entirely on the level of generality at which one chooses to
describe the facts. Also, judges may differ in their opinion of what material
facts are.

How to handle ratios:

The following techniques are used by judges to handle ratios:
(a) Following, approving and applying a previous decision.
(b) Not following, disapproving and overruling a previous decision.
(c) Distinguishing a previous decision.

Under the Common Law, the same court which decided an earlier case as well as
courts under that court within the same jurisdiction are supposed to follow what
the first court establishes unless what the first case establishes is so grossly
wrongheaded or wholly inappropriate or can be distinguished on facts.

Case Discussion:
1) MGM v. Grokster (545 U.S 913, 125 S.Ct. 2764), Examine how the courts
used the precedents established in Sony v. Universal City Studios (464 U.S
417, 104 S.Ct. 774)
2) Olga Tellis v. Union of India (1985) 3 SCC 545

Concept of Overruling
To supersede(replace); annul; reject by subsequent action or decision. A judicial
decision is said to be overruled when a later decision, rendered by the same
court or by a superior court in the same system, expresses a judgment upon
the same question or law directly opposite to that which was before given, thereby
depriving the earlier opinion of all authority as a precedent. In another sense,
‘overrule’ is spoken of the action of a court in refusing to sustain, or recognize as
enough, an objection made in the course of a trial, as to the introduction of
evidence, etc.

Case discussion:
• Plessy v. Ferguson (163 U.S 537, 16 S. Ct.1138). Examine how the U.S
Supreme Court overruled the decision in Brown v. Board of Education (
347 U.S 483, 74S.Ct 686). Examine whether Brown specifically overruled
Plessy?

38
 • Young v. Bristol Aeroplane Co. Ltd. L.R. (1944 K.B. 718), discusses the
concept of per incuriam. (Per incuriam, literally translated as "through lack
of care", refers to a judgment of a court which has been decided without
reference to a statutory provision or earlier judgment which would have
been relevant.)
• Golak Nath v. Union of India AIR 1980 SC 1643 examines the issue of
prospective ruling.
• Mr. X v. Hospital Z, (1998) 8 SCC 296 and subsequent cases, and analyze
the judicial treatment of right to privacy and pressing social values.
• Suresh kumar koushal v. naz foundation

Concept of Res Judicata

Refer Daryo v. State of U.P.

Refer Section 11 of CPC

Res judicata translates to "a matter judged."

Generally, res judicata is the principle that a cause of action may not be re-
litigated once it has been judged on the merits. "Finality" is the term which refers
to when a court renders a final judgment on the merits.

This doctrine bars re-litigation of same substantive issues by the same parties
before the same court.

Objective:
The doctrine of res judicata is based on three maxims:
a) No man should be punished twice for the same cause (Nemo debet
bis vexari pro una et eadem causa)
b) It is in the interest of the state that there should be an end to a
litigation (Interest reipublicae ut sit finis litium)
c) A judicial decision must be accepted as correct (Res judicata pro
veritate occipitur)

Thus, the doctrine of res judicata is the combined result of the public policy
reflected in maxims (b) and (c) and private justice expressed in the maxim (a),
and they apply to all judicial proceedings whether civil or criminal.

39
 How to Brief a Case Using the “IRAC” Method

When briefing a case, your goal is to reduce the information from the case into a format that
will provide you with a helpful reference in class and for review. Most importantly, by
“briefing” a case, you will grasp the problem the court faced (the issue); the relevant law the
court used to solve it (the rule); how the court applied the rule to the facts (the application or
“analysis”); and the outcome (the conclusion). You will then be ready to not only discuss the
case, but to compare and contrast it to other cases involving a similar issue.

Before attempting to “brief” a case, read the case at least once. Follow the “IRAC” method in
briefing cases:

Facts*

Write a brief summary of the facts as the court found them to be. Eliminate facts that are not
relevant to the court’s analysis. For example, a business’s street address is probably not relevant
to the court’s decision of the issue of whether the business that sold a defective product is liable
for the resulting injuries to the plaintiff. However, suppose a customer who was assaulted as
she left its store is suing the business. The customer claims that her injuries were the reasonably
foreseeable result of the business’s failure to provide security patrols. If the business is located
in an upscale neighbourhood, then perhaps it could argue that its failure to provide security
patrols is reasonable. If the business is located in a crime-ridden area, then perhaps the customer
is right. Instead of including the street address in the case brief, you may want to simply
describe the type of neighbourhood in which it is located. (Note: the time of day would be
another relevant factor in this case, among others).

Procedural History*

What court authored the opinion: The United States Supreme Court? The California Court of
Appeal? The Ninth Circuit Court of Appeals? (Hint: Check under the title of the case: The
Court and year of the decision will be given). If a trial court issued the decision, is it based on
a trial, or motion for summary judgment, etc.? If an appellate court issued the decision, how
did the lower courts decide the case?

Issue

What is the question presented to the court? Usually, only one issue will be discussed, but
sometimes there will be more. What are the parties fighting about, and what are they asking
the court to decide? For example, in the case of the assaulted customer, the issue for a trial
court to decide might be whether the business had a duty to the customer to provide security
patrols. The answer to the question will help to ultimately determine whether the business is
liable for negligently failing to provide security patrols: whether the defendant owed plaintiff
a duty of care, and what that duty of care is, are key issues in negligence claims.

Rule(s):

Determine what the relevant rules of law are that the court uses to make its decision. These
rules will be identified and discussed by the court. For example, in the case of the assaulted
customer, the relevant rule of law is that a property owner’s duty to prevent harm to invitees is
determined by balancing the foreseeability of the harm against the burden of preventive

40
measures. There may be more than one relevant rule of law to a case: for example, in a
negligence case in which the defendant argues that the plaintiff assumed the risk of harm, the
relevant rules of law could be the elements of negligence, and the definition of “assumption of
risk” as a defense. Don’t just simply list the cause of action, such as “negligence” as a rule of
law: What rule must the court apply to the facts to determine the outcome?

Application/Analysis:

This may be the most important portion of the brief. The court will have examined the facts in
light of the rule, and probably considered all “sides” and arguments presented to it. How courts
apply the rule to the facts and analyse the case must be understood in order to properly predict
outcomes in future cases involving the same issue. What does the court consider to be a relevant
fact given the rule of law? How does the court interpret the rule: for example, does the court
consider monetary costs of providing security patrols in weighing the burden of preventive
measures? Does the court imply that if a business is in a dangerous area, then it should be
willing to bear a higher cost for security? Resist the temptation to merely repeat what the court
said in analysing the facts: what does it mean to you? Summarize the court’s rationale in your
own words. If you encounter a word that you do not know, use a dictionary to find its meaning.

Conclusion

What was the final outcome of the case? In one or two sentences, state the court’s ultimate
finding. For example, the business did not owe the assaulted customer a duty to provide security
patrols.

* This applies to case briefs only, and not exams. Use the IRAC method in answering exams:
Issue/Rule/Analysis/Conclusion.

41
S.no. CONTENTS Pg.no.
1 French Cour de Cassation Case 2
2 Dr. Janet Jeyapaul v. SRM University 4
3 Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011 5
4 D.K Basu v. State of West Bengal, (1997) 1 SCC 416 10
5 V. Sudeer v. Bar Council of India (1999) 3 SCC 176 13
6 State of Tamil Nadu v. Sabanayagam and another (1998) SCC 18
318
7 Soni Devrajbhai Babubhai v. State of Gujarat AIR 1991 SC 20
2173
8 S K Batra v. Union of India, (2007) 3 SCC 169 25
9 T.N. Godavarman Tirumulkpad V. Union of India 27
10 S.P Gupta v. Union of India 1981 Suppl. SCC 87 29
11 Supreme Court Advocates-on-Record - Association and 31
another versus Union of India LNIND 2015 SC 611
12 MacPherson v. Buick Motor Co., 160 App. Div. 55 34
13 Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677 37
14 Director of Settlements, A.P v. M.R. Appa Rao, AIR 2002 SC 39
1598.
15 Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 41
603 : AIR 1955 SC 661 : (1955) 6 STC 446
16 MGM v. Grokster (545 U.S 913, 125 S.Ct. 2764) 43
17 Olga Teliss v. Union of India (1985) 3 SCC 5450 44
18 Brown v. Board of Education overruled Plessy v. Ferguson 45
19 Young v. Bristol Aeroplane Co. Ltd. L.R. (1944 K.B. 718) 46
20 Golak Nath v. Union of India AIR 1980 SC 1643 46
21 Mr. X v. Hospital Z, (1998) 8 SCC 296 47
22 Daryo v. State of U.P. 49
23 Navtej Johar v Union of India 50

1
 French Cour de Cassation Case

FRENCH REPUBLIC

ON BEHALF OF THE FRENCH PEOPLE

CASSATION, on the appeal of the lady widow X ..., a judgment on 7

July 1927 by the Court of Appeal of Lyon, in favor of the Société
Anonyme "At Galeries Belfortaises".

OFF.

From February 13, 1930.

THE COURTYARD,

Ruling met all rooms;

Heard, in public hearings on 12 and 13 February 1930, Mr. Advisor The

Marc'hadour in its report; Jaubert and Labbé Masters, counsel
for the parties in their respective submissions, the Attorney-
General

And after deliberation in the Council Chamber;

Ruling on the appeal of the medium:

Having regard to Article 1384, paragraph 1, of the Civil Code;

Whereas the presumption of liability in that article against the one who has
custody inanimate thing that caused injury to others can be
destroyed only by the evidence of unforeseeable circumstances
or force majeure or a foreign cause that is not attributable to it; it
is not enough to prove that he was not at fault or that the cause of
the harmful remained unknown;

Whereas, April 22, 1926, a car truck belonging to the company "At Galeries
Belfortaises" overturned and injured the minor Lise X ...; that the
judgment has refused to apply the aforementioned provision on
the ground that the accident caused by an automobile in motion
under the influence and man's direction was not, so that no

2
 evidence exists that it is due to an inherent defect of the car, the
fact of the thing that was in his custody under the terms of article
1384, paragraph 1, and therefore the victim was required to
obtain compensation for damage, to establish the responsibility
of conducting a fault which was attributable to it;

But whereas the law for the application of the presumption that it enacts, does
not distinguish according to whether the thing that caused the
damage was or was not operated by the hand of man; it is not
necessary that it has a vice inherent in its nature and likely to
cause the damage, article 1384 related liability in the custody of
the thing, not the thing itself;

Hence it follows that in deciding as it did the contested judgment invert the
legal order of proof and violated the aforementioned legislation;
BROKEN,

Published: JUDGMENTS Court of Cassation Bulletin N. Rooms combined

34 percent. 68

Contested decision: Lyon Court of Appeal of 7 July 1927

Titrations and abstracts: CIVIL LIABILITY - Things inanimate -

Automotive - Goalkeeper - Presumption of responsibility. The
presumption of liability established by Article 1384, paragraph 1,
of the Civil Code against one that his custody inanimate thing that
caused injury to others can only be destroyed by the evidence of
a case fortuitous or force majeure or external cause that is not
attributable to it. The law for the application of the presumption
that it enacts does not distinguish according to whether the thing
that caused the damage was or was not operated by the hand of
man, and it is not necessary that the thing has a defect inherent in
its nature and likely to cause the damage, Article 1384 related
liability in the custody of the thing, not the thing itself.

Standards applied:

1. Civil Code 1384 al. 1

3
Dr. Janet Jeyapaul v. SRM University

Grants Commission Act, 1956, Section 3—After enquiry, Appellant/Lecturer

received notice mentioning that same shall be treated as one month’s notice and
she would be relieved from services—Challenging impugned notice, Appellant
filed writ petition—Single Judge quashed termination notice and directed
Respondents to reinstate Appellant into service—On appeal, Division Bench held
that writ petition filed by Appellant against 1st Respondent/University not
maintainable, but granted liberty to Appellant to approach Tribunal for
ventilating her grievance on merits—Present appeal—Whether writ petition
against 1st Respondent maintainable—Held, 1st Respondent engaged in
imparting education in higher studies to students at large and discharged “public
function” by way of imparting education—Notified as “Deemed University” by
Central Government under Section 3 of Act 1956—Being “Deemed University”,
provisions of Act 1956 made applicable to 1st Respondent, which provides for
effective discharge of public function—Once 1st Respondent declared as
“Deemed University” whose functions and activities governed by Act 1956, it is
“Authority” within meaning of Article 12 of Constitution—Once it is held to be
“Authority” as provided in Article 12 of Constitution, it becomes amenable to
writ jurisdiction of High Court under Article 226 of Constitution—Appellant’s
writ petition under Article 226 of Constitution against 1st Respondent
maintainable—But, Division Bench erred in holding that 1st Respondent is not
subjected to writ jurisdiction of High Court under Article 226 of Constitution—
Impugned order set aside—Case remanded to Division Bench to decide 1st
Respondent’s appeal on merits—Appeal allowed.
Held: This Court is of the considered view that the Division Bench of the High
Court erred in holding that 1st Respondent is not subjected to the writ jurisdiction
of the High Court under Article 226 of the Constitution. In other words, it should
have been held that 1st Respondent is subjected to the writ jurisdiction of the
High Court under Article 226 of the Constitution. This this Court says for the
reasons that firstly, 1st Respondent is engaged in imparting education in higher
studies to students at large. Secondly, it is discharging “public function” by way
of imparting education. Thirdly, it is notified as a “Deemed University” by the
Central Government under Section 3 of the UGC Act. Fourthly, being a
“Deemed University”, all the provisions of the UGC Act are made applicable to
1st Respondent, which inter alia provides for effective discharge of the public
function - namely education for the benefit of public. Fifthly, once 1st
Respondent is declared as “Deemed University” whose all functions and
activities are governed by the UGC Act, alike other universities then it is an
“authority” within the meaning of Article 12 of the Constitution. Lastly, once it
is held to be an “authority” as provided in Article 12 then as a necessary
consequence, it becomes amenable to writ jurisdiction of High Court under
Article 226 of the Constitution.

4
Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011

This Writ Petition has been filed for the enforcement of the fundamental rights of
working women under Articles 14, 19 and 21 of the Constitution of India in view
of the prevailing climate in which the violation of these rights is not uncommon.
With the increasing awareness and emphasis on gender justice, there is increase
in the effort to guard such violations; and the resentment towards incidents of
sexual harassment is also increasing. The present petition has been brought as a
class action by certain social activists and NGOs with the aim of focussing
attention towards this societal aberration, and assisting in finding suitable
methods for realisation of the true concept of 'gender equality'; and to prevent
sexual harassment of working women in all work places through judicial process,
to fill the vacuum in existing legislation.

The immediate cause for the filing of this writ petition is an incident of alleged
brutal gang rape of social worker in a village of Rajasthan. That incident is the
subject matter of a separate criminal action and no further mention of it, by us, is
necessary. The incident reveals the hazards to which a working woman may be
exposed and the depravity to which sexual harassment can degenerate; and the
urgency for safeguards by an alternative mechanism in the absence of legislative
measures. In the absence of legislative measures, the need is to find an effective
alternative mechanism to fulfil felt and urgent social need. Each such incident
results in violation of the fundamental rights of 'Gender Equality' and the 'Right
of Life and Liberty'. It is clear violation of the rights under Articles 14, 15 and 21
of Constitution. One of the logical consequences of such an incident is also the
violation of the victim's fundamental right under Article 19(1)(g) 'to practice any
profession or to carry out any occupation, trade or business'. Such violations,
therefore, attract the remedy under Article 32 for the enforcement of these
fundamental rights of women. This class action under Article 32 of the
Constitution is for this reason. A writ of mandamus in such a siltation, if it is to
be effective, needs to be accompanied by directions for prevention; as the
violation of fundamental rights of this kind is a recurring phenomenon. The
fundamental right to carry on any occupation, trade or profession depends on the
availability of a "safe" working environment. Right to life means life with dignity.
The primary responsibility fro ensuring such safety and dignity through suitable
legislation, and the creation of a mechanism for its enforcement, is of the
legislature and the executive. When, however, instances of sexual harassment
resulting in violation of fundamental rights of women workers under Articles 14,
19 and 21 are brought before us for redress under Article 32, an effective redressal
requires that some guidelines should be laid down for the protection of these
rights to fill the legislative vacuum.

5
The notice of the petition was given to the State of Rajasthan and the Union of
India. The learned Solicitor General appeared for the Union of India and rendered
valuable assistance in the true spirit of a Law Officer to help us find a proper
solution to this social problem of considerable magnitude. In addition to Ms.
Meenakshi Arora and Ms. Naina Kapur who assisted the Court with full
commitment, Shri Fali S. Nariman appeared as Amicus Curiae and rendered great
assistance. We place on record our great appreciation for every counsel who
appeared in the case and rendered the needed assistance to the Court which has
enabled us to deal with this unusual matter in the manner considered appropriate
for a cause of this nature. Apart from Article 32 of the Constitution of India, we
may refer to some other provision which envisage judicial intervention for
eradication of this social evil. Some provisions in the Constitution in addition to
Articles 14, 19(1)(g) and 21, which have relevance are:
In the absence of domestic law occupying the field, to formulate effective
measures to check the evil of sexual harassment of working women at all work
places, the contents of International Conventions and norms are significant for
the purpose of interpretation of the guarantee of gender equality, right to work
with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the
safeguards against sexual harassment implicit therein. Any International
Convention not inconsistent with the fundamental rights and in harmony with its
spirit must be read into these provisions to enlarge the meaning and content
thereof, to promote the object of the constitutional guarantee. This is implicit
from Article 51(c) and enabling power of the Parliament to enact laws for
implementing the International Conventions and norms by virtue of Article 253
read with Entry 14 of the Union List in Seventh Schedule of the Constitution.
Article 73 also is relevant. It provides that the executive power of the Union shall
extend to the matters with respect to which Parliament has power to make laws.
The executive power of the Union is, therefore, available till the parliament enacts
to expressly provide measures needed to curb the evil.

Thus, the power of this Court under Article 32 for enforcement of the
fundamental rights and the executive power of the Union have to meet the
challenge to protect the working women from sexual harassment and o make their
fundamental rights meaningful. Governance of the society by the rule of law
mandates this requirements as a logical concomitant of the constitutional scheme.
The exercise performed by the Court in this matter is with this common
perception shared with the learned Solicitor General and other members of the
Bar who rendered valuable assistance in the performance of this difficult task in
public interest.

The progress made at each hearing culminated in the formulation of guidelines to

which the Union of India gave its consent through the learned Solicitor General,
indicating that these should be the guidelines and norms declared by this Court

6
to govern the behaviour of the employers and all others at the work places to curb
this social evil.

Gender equality includes protection from sexual harassment and right to work
with dignity, which is a universally recognised basic human right. The common
minimum requirement of this right has received global acceptance. The
International Conventions and norms are, therefore, of great significance in the
formulation of the guidelines to achieve this purpose.

The obligation of this Court under Article 32 of the Constitution for the
enforcement of these fundamental rights in the absence of legislation must be
viewed along with the role of judiciary envisaged in the Beijing Statement of
Principles of the Independence of the Judiciary in the LAWASIA region. These
principles were accepted by the Chief Justices of the Asia and the Pacific at
Beijing in 1995 as those representing the minimum standards necessary to be
observed in order to maintain the independence and effective functioning of the
judiciary. The objectives of the judiciary mentioned in the Beijing Statement are:
"Objectives of the Judiciary:
10. The objectives and functions of the Judiciary include the following:
(a) to ensure that all persons are able to live securely under the Rule of
Law; (
b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between persons
and the State."

"States Parties undertake to adopt all necessary measures at the national level
aimed at achieving the full realization of the rights recognised in the present
Convention."
The general recommendations of CEDAW in this context in respect of Article 11
are : "Violence and equality in employment:
22. Equality in employment can be seriously impaired when women are
subjected to gender specific violence, such as sexual harassment in the
work place.
23. Sexual harassment includes such unwelcome sexually determined
behavior as physical contacts and advance, sexually coloured remarks,
showing pornography and sexual demands, whether by words or actions.
Such conduct can be humiliating and may constitute a health and safety
problem; it is discriminatory when the woman has reasonable grounds to
believe that her objection would disadvantage her in connection with her
employment, including recruiting or promotion, or when it creates a hostile
working environment. Effective complaints procedures and remedies,
including compensation, should be provided.

7
 24. States should include in their reports information about sexual
harassment, and on measures to protect women from sexual harassment
and other forms of violence of coercion in the work place."

The Government of India has ratified the above Resolution on June 25, 1993 with
some reservations which are not material in the present context. At the Fourth
World Conference on Women in Beijing, the Government of India has also made
a official commitment, inter alia, to formulate and operationalize a national policy
on women which will continuously guide and inform action at every level and in
every sector; to set up a Commission for Women's Rights to act as a public
defender of women's human rights; to institutionalise a national level mechanism
to monitor the implementation of the Platform for Action. We have, therefore, no
hesitation in placing reliance on the above for the purpose of construing the nature
and ambit of constitutional guarantee of gender equality in our Constitution.

The meaning and content of the fundamental rights guaranteed in the Constitution
of India are of sufficient amplitude to compass all the facets of gender equality
including prevention of sexual harassment or abuse. Independence of Judiciary
forms a part of our constitutional scheme. The international conventions and
norms are to be read into them in the absence of enacted domestic law occupying
the fields when there is no inconsistency between them. It is now an accepted rule
of judicial construction that regard must be had to international conventions and
norms fro construing domestic law when there is no inconsistency between them
and there is a void in the domestic law. The High Court of Australia in Minister
fro Immigration and Ethnic Affairs vs. Tech. 128 ALR 535, has recognised the
concept of legitimate expectation of its observance in the absence of contrary
legislative provision, even in the absence of a Bill of Rights in the Constitution
of Australia.

In Nilabati Behera vs. State of Orissa 1993(2) SCC 746, a provision in the ICCPR
was referred to support the view taken that an enforceable right to compensation
is not alien to the concept of enforcement of a guaranteed right', as a public law
remedy under Article 32, distinct from the private law remedy in torts. There is
no reason why these international conventions and norms cannot, therefore, be
used for construing the fundamental rights expressly guaranteed in the
Constitution of India which embody the basic concept of gender equality in all
spheres of human activity.

In view of the above, and the absence of enacted law to provide fro the effective
enforcement of the basic human right of gender equality and guarantee against
sexual harassment and abuse, more particularly against sexual harassment at
work places, we lay down the guidelines and norms specified hereinafter for due
observance at all work places or other institutions, until a legislation is enacted

8
for the purpose. This is done in exercise of the power available under Article 32
of the Constitution for enforcement of the fundamental rights and it is further
emphasised that this would be treated as the law declared by this Court under
Article 141 of the Constitution.

THE GUIDELINES AND NORMS ARE AS PRESCRIBED AS UNDER: -

Having regard to the definition of 'human rights' in section 2(d) of the protection
of human rights act, 1993, taking note of the fact that the present civil and penal
laws in India do not adequately provide for specific protection of women from
sexual harassment in work places and that enactment of such legislation will take
considerable time, it is necessary and expedient for employers in work places as
well as other responsible persons or institutions to observe certain guidelines to
ensure the prevention of sexual harassment of women:
• Duty of the employer or other persons in workplaces and other institutions.
The employer in workplaces and other institutions are responsible to
prevent or deter the
• Complaint mechanism: An appropriate mechanism of prevention should
be created for redressal of the complaint.
• commission of acts of sexual harassment.
• Disciplinary action: The employer should take action by complaining
about the same to the authority responsible when sexual harassment takes
place.
• No prejudice of any rights available under the protection of human rights
act, 1993.
Workers Initiative: Employees should be allowed to raise issues of sexual
harassment at
• workers meeting.
• Awareness: Awareness of the rights of female employees in this regard
should be created by notifying the guidelines.

9
D.K Basu v. State of West Bengal, (1997) 1 SCC 416
BENCH: Kuldip Singh, A.S. Anand
COURT: Supreme Court Of India
YEAR OF JUDGEMENT: 1996
APPLICABLE LAW: Section 176 of Crpc was applied in this case i.e. enquiry
done by the Magistrate in the cause of death
Article 21 i.e Right to life and personal liberty , Article 22 i.e. arrest and detention
in certain cases and Article 20(3) i.e an accused shall not be compelled to be a
witness against himself were also used.
FACTS:
DK Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non-
Political organisation on 26.08.1986 addressed a letter to the Chief Justice of
India drawing his attention to certain news items published in the Telegraph
Newspaper regarding deaths in police lock up and custody. He requested that the
letter be treated as a Writ Petition within the “Public Interest Litigation”
Category. Considering the importance of the issues raised in the letter, it was
treated as a Writ Petition and notice was served to the Respondents. While the
Writ Petition was under consideration, one Mr. Ashok Kumar Johri addressed a
letter to the Chief Justice drawing his attention to the death of one Mahesh Bihari
of Pilkhana, Aligarh in Police Custody. The same letter was also treated as a Writ
Petition and was listed along with the Writ Petition of D.K.Basu. On 14.08.1987,
the Court made the Order issuing notices to all the State Governments and notice
was also issued to the Law Commission of India requesting suitable suggestions
within a period of two months. In response to the notice, affidavits were filed by
several states including West Bengal, Orissa, Assam, Himachal Pradesh,
Haryana, Tamil Nadu, Meghalaya, Maharashtra and Manipur. Further, Dr.
A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to assist the
Court. All the Advocates appearing rendered useful assistance to the Court

QUESTION UNDER CONSIDERATION:

Why are crimes against persons in lockups or custody increasing day by day?
Are the policemen arbitrary in arresting a person?
Who is responsible or answerable for these deaths and violence?

ORDER:
In this case, 11 guidelines adhering to Article 21 and article 22(1) were prescribed
by the court which need to be strictly followed otherwise the official would be
liable to punished for the contempt of court and proceedings must be instituted
against him.

10
1. The police personnel carrying out the arrest and handling the interrogation of
the arrestee should have clear identification and name tags with their
designations.
2. The police personnel carrying out the arrest shall make a memo at the time of
the arrest.
3. The person who has been arrested shall be entitled to have a friend, relative or
any other person known to him that he has been arrested or detained at the
particular place.
4. The time, place of arrest and venue of custody of an arrestee must be notified
by the police and where the friend or relative of the arrestee lives outside town
through the legal Aid Organisation in the District and the police station of the
area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The arrested person must be aware of his right to inform someone of his arrest.
6. An the entry should be made in the place of detention and name of the person
in custody, his friend who has been informed and details of police officials must
be attached within it.
7. The arrestee should be examined at the time of arrest and any injuries on his
body must be recorded. The inspection memo must be signed both by the arrestee
and police officer concerned and a copy must be provided to the arrestee.
8. The arrestee should be subjected to medical examination every 48 hours during
his detention by a trained doctor .
9. Copies of all the documents including the memo of arrest should be sent to
Magistrate for his record.
10. The arrestee must be permitted to meet his lawyer during the interrogation
but not throughout the whole interrogation.
11. A police control room should be provided at all district and state
headquarters, where information regarding the arrest and the place of custody of
the arrestee shall be communicated by the officer causing the arrest, within 12
hours of effecting the arrest and should be displayed on the notice board of police
control
room.

11
Judicial Overreach
• Contempt of court-failure to comply with the above requirements, apart
from rendering the official concerned liable for departmental action, would
also render him liable to be punished for contempt of court and the
proceedings for contempt of court could be instituted in any High Court of
country, having territorial jurisdiction over the matter.
• Burden of proof- the lock up’s are far from the public gaze, the only
witnesses to such custodial violence are the policemen or prisoners, who
are reluctant to be produced at witnesses in courts. There are also instances
where the higher officials turn blind eye to such complaints. The question
is, should the burden of proof be reduced? Eg: State of UP v. Shyamsunder
Trivedi
• Class file action- the judges have also the authority to address various
cases, considering all as one single matter.
• Issue of notice- the judges took up further measures to issue notices to all
the States of India.
• Balance of Rights and Security
• Guidelines/ legislative overpower of the Courts

12
V. Sudeer v. Bar Council of India (1999) 3 SCC 176
they will give us a fact pattern and ask about the fact pattern

FACTS
• Earlier, the bar council as a condition of enrolment, required an applicant
to undergo a course of training in law and then pass an examination.
• But the amendment suggested that the candidates need to undergo the
training in law, and then a “pre-enrolment” training and thereafter clear the
examination to get enrolled.
ISSUE
• Whether the Bar Council of India Training rules, 1995 as amended by the
resolution of the Bar council of India in its meeting dated 19-7- 1998
relating to training of entrants of legal profession are within the
competence of the Bar council of India or are ultra vires its rule- making
powers under the Advocates Act, 1961.
• And in alternative, whether these rules are unreasonable and arbitrary and
hence violative of Article 14 of the Constitution of India.

2. These Writ Petitions under Article 32 of the Constitution of India as well

as the two special leave petitions being SLP (C) Nos. 13755 of 1996 and
12989 of 1998 moved by the Bar Council of Maharashtra & Goa and the
Bar Council of India respectively raise a common question for our
consideration, namely, whether the Bar Council of India Training Rules,
1995 (for short `the Rules') as amended by the Resolution of the Bar
Council of India in its meeting dated 19th July, 1998 relating to training to
entrants of legal profession are within the competence of the Bar Council
of India or are ultra vires its rule making powers under the Advocate Act,
1961 (for short `the Act') and in the alternative whether these Rules are
unreasonable and arbitrary and hence violative of Article 14 of the
Constitution of India.

3. The writ petitioners, who have successfully completed their legal

education by getting requisite Law degrees from the Universities
concerned have contended before us in these writ petitions that their right
to practise Law as made available under the relevant provisions of the Act
is being arbit rarily denied by the impugned rules framed by the Bar
Council of India and, therefore, their fundamental right under Article
19(1)(g) of the Constitution of India is being violated. That the said Rules
do not impose any reasonable restrictions on the exercise of their

13
fundamental right. It is also contended that in any case, the Rules are so
framed as to be totally unworkable and are highly unreasonable and
discriminatory in character and hence they offend Article 14 of the
Constitution of India also. The civil appeal arising out of the SLP by the
Bar Council of Maharashtra & Goa brings in challenge the decision of the
Bombay High Court which upheld the impugned rules and dismissed the
writ petition filed by it and that is how the State Bar Council is before us.
Its contention is on the same lines as canvassed by learned counsel
appearing for the writ petitioners. While civil appeal arising out of SLP (C)
No. 12989 of 1998 filed by the Bar Council of India, on the other hand,
brings in challenge the Judgment and Order rendered by the learned Single
Judge of Punjab & Haryana High Court, who took the view in favour of
the original writ petitioner-Respondent herein, that the impugned rules
would not apply to the writ petitioner who had obtained his Law degree in
1981 as the Rules were purely prospective in character. It is, therefore,
obvious that all these matters raise a common question regarding legality
and validity of the impugned rules. If the Rules are upheld, then only
further question whether they are prospective in nature or not would
survive. This Court has treated the Writ Petition (Civil) No. 398 of 1996 as
the leading petition and, therefore, we shall also refer to the pleadings of
the parties and the relevant documents filed therein in the latter part of this
judgment. By order dated 16th September, 1997, a three Judge Bench of
this Court, presided over by S.C. Agrawal, J., appointed Shri Joseph
Vellapally, learned senior advocate as amicus curiae to assist the Court on
behalf of the petitioner. All other petitioners in person were permitted to
submit their written submissions and the oral arguments were permitted to
be submitted on behalf of all of them by learned amicus curiae senior
advocate. We have to place on record our high sense of appreciation for
the pains taken by amicus curiae Senior Advocate, Shri Joseph Vellapally,
who has been good enough to look into all the relevant aspects of the matter
and has placed his oral and written submissions in this connection. By
order dated 21st February, 1997, another two Judge Bench of this Court,
while treating writ petition (Civil) No. 398 of 1996 as a leading petition,
directed that other petitions that are pending in the High Court or which
may be filed thereafter shall remain stayed till further orders of this Court.
The parties have exchanged relevant pleadings which are all brought on
record supported by documents on which they rely.

4. It appears that earlier this group of matters reached final hearing, in the
light of what transpired in the Court then, a Bench of this Court consisting
of S.C. Agrawal and B.N. Kirpal, JJ. by order dated 30th September, 1997
adjourned these proceedings to enable the Bar Council of India to take a

14
fresh decision in the matter in the light of its decision taken in the earlier
meetings regarding suitable modification of the impugned rules. It appears
that ultimately on 4th August, 1998, before a Bench of three learned
Judges, Shri P.R. Rao, learned senior counsel, placed a copy of the
Resolution of Bar Council of India whereby the Rules were amended. We
have also mentioned the earlier Resolution by which the impugned rules
were amended. It is thereafter that this group of matters reached for final
hearing before us. We, therefore, have to examine the legality and validity
of the impugned rules as amended by the Resolution of the Bar Council of
India dated 19th July, 1998.

5. We may briefly mention the rival contentions submitted for our

consideration by learned counsel Shri N.N. Keshwani, who appeared in
support of Writ Petition No. 425 of 1998, as well as learned amicus curiae
Shri Joseph Vellapally on behalf of other writ petitioners and Shri P.R.
Rao, learned senior counsel for the Bar Council of India, which is the
author of the impugned rules in support of their respective cases.

6. Learned counsel for the petitioners submitted, tracing the history of the
relevant provisions of the Act and the Rules, that there is no power with
the Bar Council of India to frame the impugned rules. That Section 7 of the
Act lays down the statutory functions of the Bar Council of India. The
provisions thereof do not entitle the Bar Council of India to frame such
impugned rules prescribing a pre-condition before enrolment of an
applicant as an `advocate' under the Act by requiring him to undergo pre-
enrolment training and apprenticeship as laid down under the impugned
rules. It was also submitted that Section 24 sub-section (3)(d) of the Act
also was not available to the Bar Council of India to frame such Rules. As
a sequel, it was submitted that rule making power of the Bar Council of
India as laid down by Section 49 could not be pressed in service by it in
support of the impugned rules.

7. On the other hand, learned counsel in writ petition No. 425 of 1998,
submitted that even assuming that the impugned rules fall within the rule
making power of the Bar Council of India, the Rules framed are so
obnoxious, arbitrary, unreasonable and unworkable that they violate the
fundamental right of the petitioners under Article 14 of the Constitution of
India in any case. The appeal arising from SLP No. 12989 of 1998 filed by
the Bar Council of India, raising the question of retrospective effect of the
Rules in question projected an additional contention, which may not
survive if the Rules are held to be ultra vires the rule making power of the

15
Bar Council of India. In support of the contentions raised on behalf of the
petitioners by the learned counsel, reliance was placed on a three Judge
Bench judgment of this Court in Indian Council of Legal Aid & Advice &
others v. Bar Council of India & another, 1995(2) SCT 185, while Shri
Rao, learned senior counsel for the Bar Council of India, submitted on the
other hand, that the said decision while interpreting the provisions of
Section 49(1)(ah) of the Act was rendered per incuriam as it had not
noticed the decision of the Constitution Bench of this Court in Re: Lily
Isabel Thomas, 1964(6) SCR 229, as well as the express provisions of
Section 24(3)(d) of the Act. Mr. Rao submitted that the impugned rules
were legal and valid and were properly framed under Section 7 read with
Section 24(3)(d) and Section 49(1) and (2) of the Act. In the light of the
aforesaid rival contentions, the following points arise for our consideration
:

1. Whether the impugned rules are ultra vires the rule making power of the
Bar Council of India as available to it under the provisions of the Act.

2. If the aforesaid question is answered in negative and in favour of the Bar

Council of India, whether the impugned rules are arbitrary and
unreasonable so as to violate the guarantee of Article 14 of the Constitution
of India;

3. If the impugned rules are legal and valid, whether the respondent in Bar
Council of India's appeal, who has got his Law degree prior to the coming
into force of these Rules, can be required to comply with these Rules if he
applies for being enrolled as an `advocate' under the Act after the Rules
came into force; and

8. In order to appreciate the rival contentions centering round this point, it

will be necessary to have a peep into the historical background of the Act
which came into force years back in 1961 and also have a bird's eye view
of the subsequent amendments thereto spread over number of years during
its currency till date. It will also be necessary to keep in view the salient
features of the relevant provisions of the Act. The Act seeks to amend and
consolidate the law relating to legal practitioners and to provide for the
constitution of Bar Councils and an All-India Bar. A Bill was introduced
in the Parliament seeking to implement the recommendations of the All-
India Bar Committee made in 1953 after taking into account the
recommendations of the Law Commission on the subject of Reform of
Judicial Administration in so far as the recommendations related to the Bar.

16
Section 2, sub-section (1) clause (a) of the Act defines, amongst others, an
"advocate" to mean "an advocate entered in any roll under the provisions
of this Act". Section 2, sub-section (1) clause (d) defines `Bar Council' to
means "a Bar Council constituted under this Act". While as per clause (e)
"Bar Council of India" means "the Bar Council constituted under Section
4 for the territories to which this Act extends". "Law graduate" is defined
by clause (h) to mean "a person who has obtained a bachelor's degree in
Law from any University established by law in India;" and a "legal
practitioner" in clause (i) to mean "an advocate [or vakil] of any High
Court, a pleader, mukhtar or revenue agent;". The term "roll" is defined in
clause (k) to mean "a roll of advocates prepared and maintained under this
Act;". The "State Bar Council" is defined in clause (m) as "a Bar Council
constituted under Section 3;" and "State roll" is defined in clause (n) as "a
roll of advocates prepared and maintained by a State Bar Council under
Section 17". When we turn to Section 17, we find that it is in Chapter III
of the Act dealing with `admission and enrolment of advocates'. Section
16, which precedes Section 17, deals with Senior and other Advocates and
lays down in sub-section (1) thereof that : "There shall be two classes of
advocates, namely, senior advocates and other advocates" and then follows
Section 17, sub-section (1) which provides that : "Every State Bar Council
shall prepare and maintain a roll of advocates."

17
State of Tamil Nadu v. Sabanayagam and another (1998) SCC 318

Facts
• The Housing Board is a statutory body established under the Tamil Nadu
State Housing Board Act, 1961.
• The State of Tamil Nadu under Section 36 of the Payment of Bonus Act,
1965 had exempted the Housing Board from bonus payments to its
employees in 1977-78 and 1982-83.
• The employees of the Housing Board filed a writ petition for mandamus,
in the High Court, to direct the State Government to pay the bonuses.
• The High Court held that the exemption issued by the State of Tamil Nadu
was not legally sustainable. The State must provide a hearing to the
affected employees of the board before exercising the powers to exempt an
establishment under Section 36.
• The State of Tamil Nadu appealed against this decision in the Supreme
Court.

Issue
The Supreme Court sought to decide –
• whether the power of exemption granted to the State of Tamil Nadu under
Section 36 of the Act is an exercise of the power of conditional legislation.
• whether the provisions of Section 32(v) (c) of the Act is not applicable to
the Housing Board
• whether the exemption orders issued by the State of Tamil Nadu as per
Section 36 of the Act are null and void as no hearing was admittedly given
by the State of Tamil Nadu to the employees likely to be affected by such
exercise of power of exemption before issuing such orders.

ANALYSIS
• It was the opinion of the Court that it was never the contemplation of the
Tamil Nadu State Board that it was statutorily exempted under Section
32(v)(c) from paying bonus to its employees as it had sought exemption
the state government from paying the bonuses. Had it been exempted, there
would be no need to approach the government. It was evident that the board
was well aware that they were not exempted as other Housing Boards
continued to pay compensation.
• The Court cited the decision in the case of Housing Board of Haryana v.
Haryana Housing Board Employees’ Unions (1966) and other which held
that the Haryana Housing Board is not entitled to statutory exemption
under section 32.

18
 • Being a part of the Payment Bonus Act (The Central Act), section36 cannot
be declared void as the central government has itself dictated the guidelines
to be followed by the said section. Although the way and the way the
powers have been exercised can be scrutinized to ensure that they have
been carried out in the most appropriate manner.
• At times it so might happen, as in this case, that the conditional legislation
might favor one party over another, thus adversely affecting the other party
involved. Therefore, to arrive at a just and fair conclusion the Court may
take into consideration the viewpoints of the parties affected.
• In Visakhapatnam Port Trust and another v. Ram Bahadur Thakur Pvt. Ltd
and others [(1997) 4 SCC 582] also the court held that while considering
the modification or cancellation of the rates in exercise of powers under
Section 54 of the said Act the Central Government could appropriately
consider the representations of the parties likely to be affected by such
modification.

Conclusion
• Upheld the decision of the High Court and dismissed the appeal.
• The provisions of Section 32(v) (c) of the Act is not applicable to the
Housing Board.
• Section 32 (v) (c) and Section 36 cannot be applied at the same type.
• Additions to the definition of the conditional legislation- while distinguishing
between delegated and conditional legislation, it was inferred that ‘the
conditional legislation determines when a legislative declared rule of conduct
shall become effective. ‘

19
Soni Devrajbhai Babubhai v. State of Gujarat AIR 1991 SC 2173

JUDGMENT: CRIMINAL APPELLATE JURISDICTION:

From the Judgment and Order dated 10.1. 1989 of the Gujarat High Court in
Miscellaneous Criminal Application No. 32 of 1989.

H.S. Zaveri for the Appellant.

Dushayant Dave, Ashish Verma and Anip Sachthey. for the Respondents.

The Judgment of the Court was delivered by VERMA, J. Petitioner's daughter

Chhaya Was married to Respondent No. 2 Satish on 5. 12. 1984 and they started
living together in their marital home at Bagasara. On 13.8. 1986, Chhaya died at
Bagasara. The petitioner and his wife got some vague information about their
daughter Chhaya and went to Bagasara, the same day but were unable to meet or
see their daughter who had died. The petitioner suspected that their daughter's
death was unnatural resulting from torture by her husband and his relatives. The
petitioner filed a criminal complaint against Respondent Nos. 2 to 5, who are the
husband, his parents and sister which was transferred to the Court of. Judicial
Magistrate First Class at Dhari and registered as Criminal Case No. 382 of 1988
for an offence under section 498-A read with section 34 I.P.C. The petitioner filed
an application for committing the case to the Court of Session for trial for .an
offence punishable under section 304-B I.P.C. which was inserted in the Indian
Penal Code by Act No. 43 of 1986 w.e.f. 19.11.1986. On 29.11.1988, the Learned
Magistrate dismissed the petitioner's application holding that this amendment
being prospective was inapplicable to a death which occurred on 13.8.1986, prior
to the amendment. Aggrieved by this order, the petitioner moved an application
(Misc. Criminal Application No. 32 of 1989) in the High Court of Gujarat for a
direction to commit this case of dowry death to 'the Court of Session since an
'offence punish-able under section 304-B is triable by the Court of Session.' By
the impugned order dated January 10, 1989, the High Court has dismissed that
application. Hence this special leave petition.

Leave is granted.

The point arising for our decision is the applicability of section 304-B of the
Indian Penal Code to the present case where the death alleged to be a dowry death
occurred prior to insertion of section 304-B in the Indian Penal Code. This is the
only ground on which the. appellant claims trial of the case in the Court of
Session. . .

20
The reason given by the High Court to support its view is that the offence was
committed prior to the date of insertion of section 304-B in the Indian Penal Code
on account of which the section can have no application to the present case. None
of the courts below. has examined the applicability .of any other pre-existing
more stringent provision even if section 304-B does not apply. As such
affirmation of the view that section 304-B does not apply, will not preclude the
appellant from contending that any other more stringent provision is attracted on
the accusation made. If that point is raised, the courts below will have to decide
the same on merits on the basis of accusation made. It is in this background that
the point raised by the appellant regarding applicability of section 304-B is
decided by us.. .

Section 304-B and the cognate provisions are meant for eradication of the social
evil of dowry which has been the bane of Indian society 'and continues unabated
in spite of emanicipation of women and the women's liberation movement. This
all prevading malady in our society has only a few lucky exception in spite of
equal treatment and opportunity to boys and girls for education and career.
Society contin- ues to perpetuate the difference between them for the pur- pose
of marriage and it is this distinction which makes the dowry system thrive. Even
though for eradication of this social evil, effective steps can be taken by the
society itself and the social sanctions of the community can be more deterrent,
yet legal sanctions in the form of its .prohibition and punishment are some steps
in that direction. The Dowry Prohibition Act, 1961 was enacted for this purpsoe.
The Report of the Joint Committee of Parliament quoted the observations of
Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil
as under:

" Legislation .cannot by itself normally solve deep-rooted social problems, One
has to approach them in other ways too, but legislation is necessary and essential,
so that it may give that push and have that educative factor as well as the legal
sanctions behind it which help public opinion to be given a certain shape."

The enactment of Dowry Prohibition Act, 1961 in its original form was found
inadequate. Experience shows that the demand of dowry and the mode of its
recovery takes different forms to achieve the same result and various indirect and
sophisticated methods are being used to 'avoid leaving any evidence of the
offence. Similarly, the consequences of non-fulfilment of the demand of dowry
meted out to the unfortunate bride takes different forms to avoid any apparent
causal connection between the demand of dowry and its prejudicial effect on the
bride. This experience has led to several other legislative measures in the
continuing battle to combat this evil.

21
The Criminal Law (Second Amendment) Act, 1983 (No. 45 of 1983) was an act
further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973
and the Indian Evidence Act, 1872. Section 498-A was inserted in the Indian
Penal Code and corresponding amendments were made in the Code of Criminal
Procedure which included section 198A .therein and also inserted section 113A
in the Indian Evidence Act,. 1872. Thereafter, the Dowry Prohibition
(Amendment) Act, 1986 (No. 43 of 1986) was enacted further to amend the
Dowry Prohibition .Act, 1961 and to make certain .necessary changes in the
Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian
Evidence Act, 1872. Two of the salient features of the Dowry Prohibition
(Amendment) Act, 1986 (No. 43 of 1986) stated in the State- ment of Objects and
Reasons of the Bill are as under:

"(e) Offences under the Act are proposed to be made non-bailable. "(g) A new
offence of "dowry death" is proposed to be included in the Indian Penal Code and
the necessary consequential amend- ments in the Code of Criminal Procedure,
1973 and in the Indian Evidence Act, 1872 have also been proposed."

Accordingly by section 7 of the Amendment Act, section 8 of the Dowry'

Prohibition' Act, 1961 was amended to make every Offence under this Act non-
bailable while continuing it to be non-compoundable. By sections 10, 11 and 12,
amendments were made in the Indian Penal Code, Code of Criminal Proce- dure,
1973 and the Indian' Evidence Act, 1872, as part of the same scheme as follows:

"10. In the Indian Penal Code, after, section 304-A, the following section shall be
inserted, namely:

'304-B. Dowry death. (1) Where the death of a woman is caused by any burns or
bodily injury or occurs otherwise then under normal circumstances within seven
years of her marriage and it is shown that .soon before her death she was subjected
to cruelty or harassment by her husband or any relative of her husband for, Or in
connection with, any demand for dowry such death shall be called "dowry death",
and such husband or relative shall be deemed to have caused her death.
Explanation-For the purposes of this sub-section, ,'dowry". shall have the same
meaning as in section 2 of the Dowry Prohibition Act, 196 1 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a
term which shall not be less than seven years but which may extend to
imprisonment for "11. In the Code of Criminal Procedure, 1973, in the First
Schedule after the entries relating to section 304-A, the following entries shall be
inserted, namely:

22
Section Offence Punishment Cognizable Bailable or By what or non- non-bail-
Court cognizable able triable 1 2 3 4 5 6 "304-B ' Dowry Imprison- Ditto Non-
Court of death ment of not bailable ' Session."

less' than seven years but which may extend to imprisonment for life. ' "12. In
the Indian Evidence Act, 1872, after section 113-A, the following section shall
be insert- ed, namely:-

"11.3-B. Presumption as to dowry death.-When the question is whether a person

has committed the dowry death of a woman and it is shown that soon before her
'death. such woman has been subjected by such .person to cruelty Or harassment
for, or in connecting with, any demand for dowry, the Court shall presume that
such person had caused the dowry death.

Explanation.-For the purpose of this section', "dowry death" shall have the same
meaning as in section 304-B of the Indian Penal Code (45 of 1860)."

It is clear from the above historical background that the offence of dowry death
punishable under section 304-B of the Indian Penal Code is a new offence
inserted in the Indian Penal Code with effect from 19.11.1986 when Act No. 43
of 1986 came into force. The offence under section 304-B is punishable with a
minimum sentence of seven years which may extend to life imprisonment and is
triable by Court of Session. The corresponding amendments made in the Code of
Criminal Procedure and the Indian Evidence Act relate to the trial and proof of
the offence. Section 498;A inserted in the Indian Penal Code by the Criminal Law
(Second Amendment)Act, 1983 (Act No. 46 of 1983) is an offence triable by a
Magistrate of the First Class and is punishable with imprisonment for a term
which may extend to three years in addition to fine. It is for the offence punishable
under section 498-A which was in the statute book on the date of death of Chhaya
that the respondents are being tried in the Court of Magistrate of the First Class.
The offence punishable under section 304-B, known as. dowry death, was a new
offence created with effect .from 19.11.1986 by insertion of the provision in the
Indian Penal Code providing for a more stringent offence' than section 498-A.
Section 304-B is a substantive provision creating a new offence and not merely a
provision effecting a, change in procedure for trial of a pre-existing substantive
offence. Acceptance of the appellant's contention would amount to holding that
the respondents can be tried and punished for the offence of dowry death provided
in section 304-B of the Indian Penal Code with the minimum sentence of seven
years' imprisonment for an act done by them prior to creation of the new offence
of dowry death. In our opinion, this would clearly deny to them the protection
afforded by clause (1) of Article 20 of the Constitution which reads as under:

23
"20.. Protection in respect of conviction for offences. --(1) No person shall be
convicted of any offence except for violation of the law in force at the time of the
commission of the act charged as an offence, 'nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence. ' ' " In our opinion ,. the protection given by Article
20(1) is a complete answer to the appellant's contention. The contention 'of
learned counsel 'for the appellant that section 304-B inserted in the Indian Penal
Code does not create a new offence and' contains merely a rule of evidence is
untenable. The rule of evidence to prove the offence of dowry death is contained
in section 113-B of the Indian Evidence Act providing for presumption as to
dowry death which was a simultaneous' amendment made in the Indian Evidence
Act for proving the offence of dowry death. The fact that the Indian Evidence Act
was so amended simultaneously with the insertion of section 304-B in the Indian
Penal' Code by the same Amendment Act is' another pointer in this direction. This
contention is, therefore, rejected. In follows that the view taken by the High Court
that the respondents cannot be tried punished for the offence provided in section
304-B of the Indian Penal Code which is a new offence created subsequent 'to the
commission of the offence attributed to the respondents does not suffer from any
infirmity. However, as earlier indicated, in case the accusation against the
respondents discloses commission of any other more stringent pre-existing
offence by the respondents than section 498-A of the Indian Penal Code, the
appellant would be entitled to raise that question and the Court will then consider
and decide it on that basis. No such argument having been advanced before us or
any of the courts below so far, the same does not arise for consideration in the
present proceeding. With these observations, the appeal is dismissed.

24
S K Batra v. Union of India, (2007) 3 SCC 169
JUDGMENT MARKANDEY KATJU, J. Leave granted.

This appeal has been filed against the impugned judgment of the Delhi High
Court dated 17.1.2005 in C.M.M. No. 1367 of 2004 and C.MM. No. 1420 of
2004.

Heard learned counsel for the parties and perused the record.

The facts of the case are that respondent Smt. Taruna Batra was married to Amit
Batra, son of the appellants, on 14.4.2000.

After the marriage respondent Taruna Batra started living with her husband Amit
Batra in the house of the appellant no.2 in the second floor. It is not disputed that
the said house which is at B-135, Ashok Vihar, Phase-I, Delhi belongs to the
appellant no.2 and not to her son Amit Batra.

Amit Batra filed a divorce petition against his wife Taruna Batra, and it is alleged
that as a counter blast to the divorce petition Smt. Taruna Batra filed an F.I.R.
under Sections 406/498A/506 and 34 of the Indian Penal Code and got her father-
in-law, mother-in-law, her husband and married sister-in-law arrested by the
police and they were granted bail only after three days.

It is admitted that Smt. Taruna Batra had shifted to her parent's residence because
of the dispute with her husband. She alleged that later on when she tried to enter
the house of the appellant no.2 which is at property No. B-135, Ashok Vihar,
Phase-I, Delhi she found the main entrance locked and hence she filed Suit No.
87/2003 for a mandatory injunction to enable her to enter the house. The case of
the appellants was that before any order could be passed by the trial Judge on the
suit filed by their daughter-in- law, Smt. Taruna Batra, along with her parents
forcibly broke open the locks of the house at Ashok Vihar belonging to appellant
No. 2, the mother- in-law of Smt. Taruna Batra. The appellants alleged that they
have been terrorized by their daughter-in-law and for some time they had to stay
in their office.

It is stated by the appellants that their son Amit Batra, husband of the respondent,
had shifted to his own flat at Mohan Nagar, Ghaziabad before the above litigation
between the parties had started.

The learned trial Judge decided both the applications for temporary injunction
filed in suit no.87/2003 by the parties by his order on 4.3.2003. He held that the
petitioner was in possession of the second floor of the property and he granted a

25
temporary injunction restraining the appellants from interfering with the
possession of Smt. Taruna Batra, respondent herein.

Against the aforesaid order the appellants filed an appeal before the Senior Civil
Judge, Delhi who by his order dated 17.9.2004 held that Smt. Taruna Batra was
not residing in the second floor of the premises in question. He also held that her
husband Amit Batra was not living in the suit property and the matrimonial home
could not be said to be a place where only wife was residing. He also held that
Smt. Taruna Batra had no right to the properties other than that of her husband.
Hence, he allowed the appeal and dismissed the temporary injunction application.

Aggrieved, Smt. Taruna Batra filed a petition under Article 227 of the
Constitution which was disposed of by the impugned judgment. Hence, these
appeals.

The learned Single Judge of the High Court in the impugned judgment held that
the second floor of the property in question was the matrimonial home of Smt.
Taruna Batra. He further held that even if her husband Amit Batra had shifted to
Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. Taruna
Batra. The Learned Judge was of the view that mere change of the residence by
the husband would not shift the matrimonial home from Ashok Vihar, particularly
when the husband had filed a divorce petition against his wife. On this reasoning,
the learned Judge of the High Court held that Smt. Taruna Batra was entitled to
continue to reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi as
that is her matrimonial home.

26
T.N. Godavarman Tirumulkpad V. Union of India

State was unable to protect massive falling of trees. On Dec 12 a bench led by
CJI JS Verma passed an interim order directing tree falling and non forestry
activities to be stopped. SC stated that forests would be defined with the
dictionary meaning and Forest conservation act applied to all thickly wooded
areas, but still there is no clear meaning of the same.
Maharashtra Forest Act states that forest means a tract of land covered with trees,
whether standing still felled or otherwise, shrubs, bushes or woody vegetation
whether of natural growth or planted by human agencies not having impact on
timber , fuel , forest produce , stream flow. Private forests are covered under the
same.
In1996, ruling the Supreme Court asked states to demarcate and notify forest
areas even those outside forest lands.
States were directed to form expert committees to identify forests as defined
Harish Salve senior advocate was appointed as amicus curiae to assist the sc.
A ban on movement of illicit timber was imposed. Ninety-four railway wagons
of illicitly transported timber were seized.
Matter was open for 20 years Writ of continuing mandamus
The court ordered the constitution of an expert body, the Central Empowered
Committee (CEC), in May 2002. In September 2002 it was notified as a statutory
committee with wide-ranging powers to deal with pending applications , hear
fresh applications, and pass orders in consonance with those of the Supreme
Court Compensatory afforestation fund and Campa - compensatory afforestation
management and planning authority and system of taking prior approval from
court was introduced by the sc.
CAF -This is money paid by developers who have razed forest land for their
construction projects, and the idea is that such land destroyed needs to be made
good by regenerating forest elsewhere on non-forest land.
CAMPA is an Indian legislation that seeks to provide an appropriate institutional
mechanism, both at the Centre and in each State and Union Territory, to ensure
expeditious utilization in efficient and transparent manner of amounts released in
lieu of forest land diverted for non-forest purpose which would mitigate impact
of diversion of such forest land.
It was pointed out that the encroachers on the forest land have been
indiscriminately cutting and removing valuable Rosewood trees, Teak trees and
Ayni trees, which are immensely valuable and are found exclusively in the
aforesaid forest.
The funds received from the user-agencies in cases where forest land diverted
falls within Protected Areas i.e. area notified under Section 18, 26A or 35 of the
Wild Life (Protection) Act, 1972, for undertaking activities related to protection
of bio-diversity, wildlife, etc., shall also be deposited in this Fund. Such monies

27
shall be used exclusively for undertaking protection and conservation activities
in protected areas of the respective States/Union Territories.

Doctrine of Public Trust

• It serves two purposes: -
The state is the trustee of all natural resources which are by nature meant for
public use and enjoyment. It is duty bound to preserve the natural resources in
their pristine purity.
Public at large is the beneficiary of seashore, rivers, forest and air. These
resources meant for public uses cannot be converted into private ownership.
(upheld in the landmark judgement of M.C Mehta V. Kamal Nath)
Article 48A requires the State to protect and improve the environment and to safe
guard the forest and wildlife of the country.
Under Article 51 A, it is the duty of every citizen to protect and improve the
natural environment including forest, natural water bodies and wildlife.
This doctrine has grown from Article 21 which grants every Indian citizen the
right to live in a clean and pollution free environment.

28
S.P Gupta v. Union of India 1981 Suppl. SCC 87
(Judges Appointment Case)

The Indian Supreme Court rejected the central government’s claim for protection
against disclosure and directed the Union of India to disclose the requested
documents. The petitioners sought the disclosure of correspondence between the
Law Minister, the Chief Justice of Delhi, and the Chief Justice of India on the
appointment and transfer of judges. The Court reasoned that a particular
document regarding the affairs of the state is only immune from disclosure when
disclosure is clearly contrary to public interest and in this case the appointment
and transfer of judges is of immense public interest.

Facts

The foregoing case dealt with a number of petitions involving important

constitutional questions regarding the appointment and transfer of judges and the
independence of judiciary. One of the issues raised was regarding the validity of
Central Government orders on the non-appointment of two judges. To establish
this claim, the petitioners sought the disclosure of correspondence between the
Law Minister, the Chief Justice of Delhi, and the Chief Justice of India.

However, the state claimed privilege against disclosure of these documents under
article 74(2) of the Indian Constitution, which provides that the advice tendered
by the Council of Ministers to the President cannot be inquired into in any court,
and section 123 of the Indian Evidence Act, which provides that evidence derived
from unpublished official records on state affairs cannot be given without the
permission of the head of the concerned department. Section 162 of the Evidence
Act provides that a witness summoned to produce a document before a court must
do so, and the court will decide upon any objection to this.

Decision Overview

In a case decided by Justice Bhagwati, the Supreme Court of India rejected the
government’s claim for protection against disclosure and directed the Union of
India to disclose the documents containing the correspondence. An open and
effective participatory democracy requires accountability and access to
information by the public about the functioning of the government. Exposure to
the public gaze in an open government will ensure a clean and healthy
administration and is a powerful check against oppression, corruption, and misuse
or abuse of authority. The concept of an open government is the direct emanation
from the right to know, which is implicit in the right to freedom of speech and

29
expression guaranteed under Article 19(1)(a) of the Indian Constitution.
Therefore, the disclosure of information in regard to government functioning
must be the rule and secrecy the exception, justified only where the strictest
requirement of public interest demands it.

With respect to the contention involving Article 74(2), the Court held that while
the advice by the Council of Ministers to the President would be protected against
judicial scrutiny, the correspondence in this case between the Law Minister, the
Chief Justice of Delhi, and the Chief Justice of India was not protected merely
because it was referred to in the advice.

There are only two grounds on the basis of which the Central Government’s
decision regarding appointment and transfer can be challenged: (1) there was no
full and effective consultation between the Central Government and the
appropriate authorities, and (2) the decision was based on irrelevant grounds. The
correspondence in question would be relevant qua both these grounds, which
necessitates its disclosure. Public interest lies at the foundation of the claim for
protection under the Evidence Act. Under these considerations, the Court must
decide whether disclosure of a particular document will be contrary to public
interest. It must balance the public interest in fair administration of justice through
disclosure with the public interest sought to be protected by nondisclosure, and
then decide if the document should be protected.

The correspondence in the present case was found not to be protected. It dealt
with appointment and transfer of judges, a matter of great public interest, and its
disclosure would not have been detrimental to public interest. The apprehension
of an ill-informed or captious public or of political criticism were not enough to
justify the protection of the correspondence. After examining the correspondence,
the Court decided that the Central Government order regarding non-appointment
was justified.

30
Supreme Court Advocates-on-Record - Association and another
versus Union of India LNIND 2015 SC 611

As per Jagdish Singh Khehar, J

Constitution—National Judicial Appointment Commission—Validity of—

Constitution of India, 1950, Articles 124, 127, 128, 217, 222, 224 and 231—
Constitution (Ninety-Ninth Amendment) Act, 2014 (Amendment Act 2014),
Articles 124A, 124B and 124C—National Judicial Appointment Commission
Act, 2014 (Act 2014), Sections 3, 5, 6, 11 and 12—Validity of Amendment Act
2014 and Act 2014 challenged on ground that by virtue of same, basic structure
of Constitution altered—Whether provisions of Amendment Act 2014 and Act
2014 ultra vires provisions of Constitution and also violative of basic structure
of Constitution—Held, Article 124A (1) of Amendment Act 2014 provides for
constitution and composition of National Judicial Appointments Commission
(NJAC)—If inclusion of anyone of the Members of NJAC held to be
unconstitutional, Article 124A of Amendment Act 2014 will be rendered
nugatory in its entirety—Article 124A (1)(a)(b) of Amendment Act 2014 do not
provide representation to judicial component in NJAC, same insufficient to
preserve primacy of judiciary in matter of appointment of Judges to higher
judiciary and same violative of principle of independence of judiciary—Article
124A (1)(c) of Amendment Act 2014 is ultra vires the provisions of
Constitution because of inclusion of Union Minister in charge of Law and
Justice as ex officio Member of NJAC—Article 124A (1)(d) of Amendment Act
2014 provides for inclusion of two eminent persons as Members of NJAC, same
ultra vires provisions of Constitution and violative of basic structure of
Constitution—Clauses (a) to (d) of Article 124A (1) of Amendment Act 2014
struck down—In view of striking down of Article 124A (1) of Amendment Act
2014, Amendment Act 2014 struck down in its entirety—Provisions of
Constitution sought to be amended would automatically revive and status quo
ante would stand restored—Since Amendment Act 2014 is struck down, Act
2014 also struck down—Petitions allowed.

As per Madan B. Lokur, J

Constitution—National Judicial Appointment Commission—Validity of—

Constitution of India, 1950, Articles 14, 124, 127, 128, 217, 222, 224 and 231—
Constitution (Ninety-Ninth Amendment) Act, 2014 (Amendment Act 2014),
Articles 124A, 124B and 124C—National Judicial Appointment Commission
Act, 2014 (Act 2014), Sections 3, 5, 6, 11 and 12—Whether Amendment Act
2014 which substitutes and replaces extant procedure for the appointment
of judges of Supreme Court and High Courts with radically different procedure
impinges on independence of judiciary and violates basic structure of

31
Constitution—Whether Act 2014 is constitutionally valid legislation—Held,
Amendment Act 2014 and Act 2014 completely taken away discretion of
President to turn down recommendation for appointment of Judge reducing
constitutional significance of President—Amendment Act 2014 and Act 2014
limited and curtailed authority of Chief Justice of India and Chief Justice of
India precluded from taking opinion of other judges or of person outside
NJAC—Article 124A of Amendment Act 2014 as introduced in Constitution by
Amendment Act 2014 impinges on independence of judiciary and in matter of
appointment of Judges and alters basic structure of Constitution, same declared
to be unconstitutional—Other provisions of Amendment Act 2014 cannot stand
by themselves and they are also declared as unconstitutional—Similarly, Act
2014 confers arbitrary and unchartered powers on various authorities under
statute and it violates Article 14 of Constitution and declared unconstitutional—
Act 2014 cannot stand alone in absence of Amendment Act 2014 and result of
such declaration, collegium system postulated gets revived—But, procedure for
appointment of judges needs fine tuning.

As per Kurian, J

Constitution—National Judicial Appointment Commission—Validity of—

Constitution of India, 1950, Articles 124, 127, 128, 217, 222, 224 and 231—
Constitution (Ninety-Ninth Amendment) Act, 2014 (Amendment Act 2014),
Articles 124A, 124B and 124C—National Judicial Appointment Commission
Act, 2014 (Act 2014), Sections 3, 5, 6, 11 and 12—Whether provisions of
Amendment Act 2014 and Act 2014 ultra vires provisions of Constitution and
also violative of basic structure of Constitution—Held, independence of
judiciary is part of basic structure of Constitution and appointment of Judges to
High Courts and Supreme Court is integral part of independence of judiciary—
Since amendment is bad, no point in dealing with validity of creature of
amendment—Direct participation of Executive or other non-judicial elements
would lead to structured bargaining in appointments—Attempt by diluting basic
structure to create committed judiciary to be nipped in the bud—Parliament has
no power to gerrymander Constitution—Amendment Act 2014 impairs
structural distribution of powers and it is impermissible—Amendment Act 2014
sought to substitute provisions in Constitution and insert few new provisions—
Once process of substitution and insertion by way of constitutional amendment
is bad and impermissible, pre-amended provisions resurface and revive—But,
Collegium system lacks transparency, accountability and objectivity—Serious
allegations raised regarding approach of Collegium system to be subjective,
such allegations call for deep introspection as to whether institutional
trusteeship has kept up expectations of framers of Constitution—Collegium
system needs to be improved requiring glasnost and perestroika and case needs
to be heard further in that regard.

32
As Per Adarsh Kumar Goel, J

Constitution—National Judicial Appointment Commission—Validity of—

Constitution of India, 1950, Articles 14, 19, 21, 124, 127, 128, 217, 222, 224
and 231—Constitution (Ninety-Ninth Amendment) Act, 2014 (Amendment Act
2014), Articles 124A, 124B and 124C—National Judicial Appointment
Commission Act, 2014 (Act 2014), Sections 3, 5, 6, 11 and 12—Whether
provisions of Amendment Act 2014 and Act 2014 ultra vires provisions of
Constitution and also violative of basic structure of Constitution—Held, pre-
dominant role of judiciary given go bye—Under unamended scheme of
appointment of judges, which is basic feature of Constitution, President is to
make appointment after consultation with CJI—But, under amended scheme, no
such final view taken by CJI—Without giving reason, Minister or nominated
members can reject unanimous view of judges—In new scheme, Chief Justices
of High Courts not provided constitutional say, same may affect quality of
candidate selected and independence of judiciary—New scheme damages basic
feature of Constitution under which primacy in appointment of judges has to be
with judiciary—Impugned amendment cannot be sustained and struck down as
unconstitutional—Once amendment is struck down, Act 2014 cannot survive
and it is also struck down—Even if doctrine of basic structure not applied
in judging validity of statute, independence of judiciary and rule of law are parts
of Articles 14, 19 and 21 of Constitution and absence of independence of
judiciary affects said Fundamental Rights—Pre-existing scheme of appointment
of judges revived.

33
MacPherson v. Buick Motor Co., 160 App. Div. 55

PROCEDURAL POSTURE: Defendant car manufacturer appealed from a judgment of the

Appellate Division of the Supreme Court in the Third Judicial Department (New York), which
affirmed a judgment holding defendant liable for negligently failing to inspect a car that was
bought by plaintiff car owner.

OVERVIEW: Defendant was an automobile manufacturer who obtained wheels for its
automobiles from a separate manufacturer. Defendant sold its vehicles to automobile retailers.
Plaintiff purchased one of defendant's vehicles from a dealer. Plaintiff was riding in the vehicle
when it collapsed and plaintiff was injured. Plaintiff sued defendant for negligence. A jury
verdict was rendered in plaintiff's favor. On appeal, the court affirmed, reasoning that defendant
was not absolved from a duty of inspection on the ground that it bought the wheels from a
reputable manufacturer. The court determined that because defendant was not merely a dealer
in automobiles but was a manufacturer of automobiles, it was responsible for the finished
product and was not at liberty to place the finished product on the market without subjecting
the component parts to ordinary and simple tests.

OUTCOME: The judgment of the lower court was affirmed.

Key Passages

OPINION BY: CARDOZO J

While the plaintiff was in the car, it suddenly collapsed. He was [*385] thrown
out and injured. One of the wheels was made of defective wood, and its spokes
crumbled into fragments. The wheel was not made by the defendant; it was
bought from another manufacturer. There is evidence, however, that its defects
could have been discovered by reasonable inspection, and that inspection was
omitted. There is no claim that the defendant knew of the defect and wilfully
concealed it.
The foundations of this branch of the law, at least in this state, were laid in
Thomas v. Winchester (6 N. Y. 397). A poison was falsely labelled. The sale was
made to a druggist, who in turn sold to a customer. [***7] The customer
recovered damages from the seller who affixed the label. "The defendant's
negligence," it was said, "put human life in imminent danger." A poison falsely
labelled is likely to injure anyone who gets it. Because the danger is to be
foreseen, there is a duty to avoid the injury
Loop v. Litchfield (42 N. Y. 351) [**1052] is the earliest. It [***8] was the case
of a defect in a small balance wheel used on a circular saw. The manufacturer
pointed out the defect to the buyer, who wished a cheap article and was ready to
assume the risk. The risk can hardly have been an imminent one, for the wheel
lasted five years before it broke. In the meanwhile the buyer had made a lease of
the machinery. It was held that the manufacturer was not answerable to the lesse

34
That decision has been criticised (Thompson on Negligence, 233; Shearman &
Redfield on Negligence [6th ed.], § 117); but it must be confined to its special
facts. It was put upon the ground that the risk of injury was too remote. The buyer
in that case had not only accepted the boiler, but had tested it. The manufacturer
knew that his own test was not the final one. The finality of the test has a bearing
on the measure of diligence owing to persons other than the purchaser
Building it for their use, he owed them a duty, irrespective of his contract with
their master, to build it with care. From Devlin v. Smith we pass over intermediate
cases and turn to the latest case in this court in which Thomas v. Winchester was
followed. That case is Statler v. Ray Mfg. Co. (195 N. Y. 478, 480). The
defendant [*387] manufactured a large coffee urn. It was installed in a restaurant.
When heated, the urn exploded and injured the plaintiff. We held that the
manufacturer was liable. We said that the urn "was of such a character inherently
that, when applied to the purposes for which it was designed, it was liable to
become a source of great danger to many people if not carefully and properly
constructed." It may be that Devlin v. Smith [***10] and Statler v. Ray Mfg. Co.
have extended the rule of Thomas v. Winchester. If so, this court is committed to
the extension. The defendant argues that things imminently dangerous to life are
poisons, explosives, deadly weapons -- things whose normal function it is to
injure or destroy. But whatever the rule in Thomas v. Winchester may once have
been, it has no longer that restricted meaning. A scaffold ( Devlin v. Smith, supra)
is not inherently a destructive instrument. It becomes destructive only if
imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may
have within itself, if negligently made, the potency of danger, yet no one thinks
of it as an implement whose normal function is destruction. What is true of the
coffee urn is equally true of bottles of aerated water ( Torgeson v. Schultz, 192
N. Y. 156). We have mentioned only cases in this court. But the rule has received
a like extension in our courts of intermediate appeal
We hold, then, that [HN1] the principle of Thomas v. Winchester is not limited
to poisons, explosives, and things of Page 5 217 N.Y. 382, *386; 111 N.E. 1050,
**1052; 1916 N.Y. LEXIS 1324, ***9 like nature, to things which in their normal
operation [***14] are implements of destruction. If the nature of a thing is such
that it is reasonably certain to place life and limb in peril when negligently made,
it is then a thing of danger. Its nature gives warning of the consequences to be
expected. If to the element of danger there is added knowledge that the thing will
be used by persons other than the purchaser, and used without new tests, then,
irrespective of contract, the manufacturer of this thing of danger is under a duty
to make it carefully. That is as far as we are required to go for the decision of this
case.
From this survey of the decisions, there thus emerges a definition of the duty of
a manufacturer which enables us to measure this defendant's liability. [HN5]
Beyond all question, the nature of an automobile gives warning of probable
danger if its construction is defective. This [*391] automobile was designed to go

35
fifty miles an hour. Unless its wheels were sound and strong, injury was almost
certain. It was as much a thing of danger as a defective engine for a railroad. The
defendant knew the danger. It knew also that the car would be used by persons
other than the buyer. This was apparent from its size; there were seats for three
persons. It was apparent also from the fact that the buyer was a dealer in cars,
who bought [***17] to resell. The maker of this car supplied it for the use of
purchasers from the dealer just as plainly as the contractor in Devlin v. Smith
supplied the scaffold for use by the servants of the owner. The dealer was indeed
the one person of whom it might be said with some approach to certainty that by
him the car would not be used. Yet the defendant would have us say that he was
the one person whom it was under a legal duty to protect. The law does not lead
us to so inconsequent a conclusion. Precedents drawn from the days of travel by
stage coach do not fit the conditions of travel to-day. The principle that the danger
must be imminent does not change, but the things subject to the principle do
change. They are whatever the needs of life in a developing civilization require
them to be
We think the defendant was not absolved from a duty of inspection because it
bought the wheels from a reputable manufacturer. It was not merely a dealer in
automobiles. It was a manufacturer of automobiles. It was responsible for Page 7
217 N.Y. 382, *392; 111 N.E. 1050, **1054; 1916 N.Y. LEXIS 1324, ***18 the
finished product. It was not at liberty to put the finished product on the market
without subjecting the component parts to ordinary and simple tests.

36
Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677

In that case, the question was whether the Board of Control for Cricket in India
was “State” within the meaning of Article 12. The Board argued that its
autonomous nature took it out of the ambit of Article 12, per Pradeep Kumar
Biswas. Zee Telefilms, on the other hand, pointed to the “governmental functions
exercised by the Board in the area of cricket.” The Court held in favour of the
Board. Following Pradeep Kumar Biswas, it noted that the Board was not created
by statute, the Government held no share capital, provided no financial assistance,
conferred no monopoly, exercised no pervasive control, and had not transferred
a government-owned corporation. Consequently, Article 12 was not applicable.
Responding to the petitioners’ contentions, the Court then stated: “Even assuming
that there is some element of public duty involved in the discharge of the Board’s
functions even then as per the judgment of this Court in Pradeep Kumar Biswas
that by itself would not suffice for bringing the Board within the net of “other
authorities” for the purpose of Article 12″ (paragraph 25)
The petitioners also argued a variant of the functional test – i.e., the power of the
Board, by virtue of its near-exclusive control over cricket in India, to impact an
important fundamental right on a national scale: the Article 19(1)(g) right to carry
on a trade, business or profession – brought it within the ambit of Article 12.
Rejecting this contention, the Court held that “the pre-requisite for invoking the
enforcement of a fundamental right under Article 32 is that the violator of that
right should be a State first… [but] we have already held that the petitioner has
failed to establish that the Board is State within the meaning of Article 12.
Therefore, assuming there is violation of any fundamental right by the Board that
will not make the Board a “State” for the purpose of Article 12.” (paragraph 28)
The functional argument – as we have seen through this series of posts – has two
(connected justifications). First, there is an idea of a “public function” – certain
tasks that, because of their very nature, a government ought to perform, and that
shouldn’t be left to the market (policing and defence are uncontroversial
examples), such as provisions of social or individual goods that we think every
person is entitled to in a modern democracy (education and healthcare are more
contested examples). Secondly, it is argued that “centres of power” (a term used
by the Supreme Court) are under particular obligations because of their ability to
affect basic rights in a deep and pervasive manner, across the board (for instance,
control over the country’s police force) – whether those centres of power are State
entities, or private ones (like large corporations). In the two paragraphs excerpted
above, we can see that the Zee Telefilms court directly rejected both these
arguments, unambiguously consigning the functional argument to judicial
oblivion.
The Court also rejected the contention that the control of cricket was in the nature
of a “State function”, holding that “the State/Union has not chosen the Board to
perform these duties nor has it legally authorised the Board to carry out these

37
functions under any law or agreement. It has chosen to leave the activities of
cricket to be controlled by private bodies out of such bodies’ own volition (self-
arrogated). In such circumstances when the actions of the Board are not actions
as an authorised representative of the State, can it be said that the Board is
discharging State functions? The answer should be no. In the absence of any
authorisation, if a private body chooses to discharge any such function which is
not prohibited by law then it would be incorrect to hold that such action of the
body would make it an instrumentality of the State.”

38
Director of Settlements, A.P v. M.R. Appa Rao, AIR 2002 SC 1598.

Constitution of India - Acquisition of Estates - Whether High Court committed

error in issuing mandamus for enforcement of a right which never subsisted on
date it issued mandamus - Estates Abolition Act 1948—The state government
took over two estates, after notifying them together under the provisions of the
Estates Abolition Act 1948 (the Act'). An ordinance was promulgated to restrict
the interim payments payable to the estate-holder till a determination by the
director of settlement. The ordinance was later replaced by an Act amending some
sections of the Act with retrospective effect. A writ petition was filed in the High
Court by the Raja of Venkatagiri, questioning the validity of the ordinance as well
as the amendment Act. The High Court declared that the amendment Act was
ultra vires of art 31(2) of the Constitution to the extent it extinguished the vested
right of the estate holders to receive interim compensation till the date of
commencement of the Act. It further held that interim payments were payable up
to the date of the ordinance but not thereafter and thus the amended Act was held
to be valid prospectively. The respondents filed writ petitions before the High
Court, seeking interim payments. A single judge disposed of the writ petitions
following the earlier judgment in Venkatagiri's case and issued a writ of
mandamus to make interim payments to the respondents. The state government
filed an application for leave to appeal, which was dismissed. Since the order of
the single judge was not complied with, a fresh writ petition was filed and the
High Court issued a direction to implement the earlier order. Meanwhile, the
judgment of the High Court in Venkatagiri's case had been assailed in the
Supreme Court where the respondents consented to the judgment of the High
Court under appeal being set aside, leaving it open to the land-holders and others
to get the compensation and interim payments in accordance with the amended
provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and
Conversion into Ryotwari) Act 1948. The Supreme Court had set aside the
judgment of the High Court and held that the amendments made to the Act were
constitutionally valid.—The State of Andhra Pradesh issued a memorandum
stating that the land-holders of the two estates could not contend that the decision
of the Supreme Court in Venkatagiri's case did not bind them because no appeal
was filed against the judgment in their favour and the law declared by the
Supreme Court was binding on the land-holders whether they were parties to the
judgment or not. —The respondents filed a writ petition claiming interim
payments and to implement the earlier order in their favour passed by the High
Court. The single judge dismissed the writ petition on the ground that the very
basis namely, the judgment in Venkatagiri's case, having been set aside by the
Supreme Court, the earlier decision in favour of the respondents would not
constitute an enforceable right and as such a writ of mandamus could not be
issued. The appeal of the respondents was allowed by the High Court. The
appellant appealed contending that the law declared by the High Court in

39
Venkatagiri's case, having been set aside and the amendment Act having been
held to be constitutionally valid and effective, the mandamus that had been issued
in favour of the respondents must be held to have been rendered ineffective and
unenforceable and therefore, the High Court could not have issued the impugned
directions.—Held, allowing the appeal:—The judgment of the High Court in
Venkatagiri's case was reversed by the Supreme Court on a conclusion that the
amendment Act was constitutionally valid. The said dictum would be valid
throughout the country and for all the persons including the respondents even
though the judgment in their favour had not been assailed. To have the universal
application of the law laid down in Venkatagiri's case, it would be reasonable to
hold that the so-called direction in favour of the respondents had become futile
the moment the Supreme Court held the Act to be constitutionally valid as the
said direction was on the basis that the amendment Act was constitutionally
invalid. No indefeasible right on the respondents could be said to have accrued
on account of the earlier judgment in their favour notwithstanding the reversal of
the judgment of the High Court in Venkatagiri's case (see para 17).—The High
Court in exercise of the power to issue a mandamus could not have said anything
contrary to that on the ground that the earlier judgment in favour of the
respondents became final, for not being challenged. The impugned mandamus
issued by the High Court in the teeth of the declaration made by the Supreme
Court as to the constitutionality of the amendment Act would be an exercise of
power and jurisdiction when the respondents did not have the subsisting legally
enforceable right under the very Act itself. The High Court committed a serious
error in issuing the mandamus in question for the enforcement of a so-called right
which never subsisted on the date.

40
Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 :
AIR 1955 SC 661 : (1955) 6 STC 446

(1) No law of a State shall impose, or authorize the imposition of, a tax on the
sale or purchase of goods where such sale or purchase takes place—
(a)outside the State; or
(b) in the course of the import of the goods into, or export of the goods out of,
the territory of India.
Explanation.—For the purposes of sub-clause (a), a sale or purchase shall be
deemed to have taken place in the State in which the goods have actually been
delivered as a direct result of such sale or purchase for the purpose of
consumption in that State, notwithstanding the fact that under the general law
relating to sale of goods the property in the goods has by reason of such sale or
purchase passed in another State.
Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 : AIR 1955 SC
661 : (1955) 6 STC 4464
2. The relevant facts appearing from the petition filed in support of the
appellant Company's aforesaid application are as follows: The appellant
Company is an incorporated company carrying on the business of manufacturing
and selling various sera, vaccines, biological products and medicines. Its
registered head office is at Calcutta and its laboratory and factory are at Baranagar
in the district of 24-Perganas in West Bengal. It is registered as a dealer under the
Bengal Finance (sales tax) Act and its registered number is SL 683-A. Its products
have extensive sales throughout the Union of India and abroad. The goods are
dispatched from Calcutta by rail, steamer or air against orders accepted by the
appellant Company in Calcutta. The appellant Company has neither any agent or
manager in Bihar nor any office, godown or laboratory in that State. Bihar issued
a notice. The reason for issuing this notice, as recited therein, was that on
information which had come to his possession the Superintendent was satisfied
that the appellant Company was liable to pay tax but had nevertheless willfully
failed to apply for registration under the Act. Thereafter there was some
correspondence between the appellant Company and the Bihar Sales Tax
authorities to which it is not necessary to refer in detail. Suffice it to say that while
the appellant Company denied its liability on the ground, inter alia, that it was not
resident in Bihar, it carried on no business there, none of its sales took place in
Bihar and that it did not collect any sales tax from any person of that State,
the Bihar Sales Tax authorities maintained that under Section 33, which was
substantially based on Article 286 of the Constitution and was inserted in the Act
by the President's Adaptation Order promulgated on the 4th April, 1951, all sales
in West Bengal or any other State under which the goods had been delivered in
the State of Bihar as a direct result of the sale for the purpose of consumption in
that State were liable to Bihar sales tax.

41
 On 10th June, 1952 the appellant Company presented before the High Court
at Patna a petition under Article 226 claiming the reliefs hereinbefore mentioned.
The respondents did not file any affidavit it in opposition controverting any of
the allegations of facts made in the petition and it must, accordingly, be taken that
those facts are admitted as correct by the respondents. The High Court dismissed
the petition on the 4th December, 1952 but on the next day issued a certificate,
under Article 132(1) of the Constitution, that the case involved a substantial
question of law as to the interpretation of the Constitution. Hence the present
appeal.

42
MGM v. Grokster (545 U.S 913, 125 S.Ct. 2764)

The decision of the Court was unanimous and was written by Justice Souter. The
issue decided by the Court was as follows: Under what circumstances can the
distributor of a product capable of both lawful and unlawful uses be liable for acts
of copyright infringement by third parties using the product? Applying a theory
of inducement of copyright infringement, the Court held that anyone who
distributes a device with the intent of promoting its use to infringe copyright, as
shown by clear expression or other affirmative steps taken to foster infringement,
is liable for third party infringement. Here, evidence of Grokster’s and
Streamcast’s “words and deeds going beyond distribution as such shows a
purpose to cause and profit from third-party acts of copyright infringement.”
Accordingly, the Court concluded that the district court should not have granted
summary judgment in favor of Grokster and Streamcast, and that the Ninth
Circuit Court of Appeals should not have affirmed the district court. The Supreme
Court remanded the case to the district court. Ordinarily, such a holding would
lead to a trial on the plaintiffs’ (referred to herein as “MGM”) copyright
infringement claims, but MGM had also filed a motion for summary judgment.
Because the Supreme Court concluded that Grokster’s and Streamcast’s
“unlawful objective is unmistakable,” and that ”there is substantial evidence in
MGM’s favor on all elements of inducement,” , the Court stated that MGM’s
motion for summary judgment should be considered by the district court when
the case is remanded. Id. Because Grokster’s and Streamcast’s unlawful objective
is unmistakable, the Court was effectively ruling that there are no genuine
disputed issues of fact material to MGM’s motion for summary judgment, and
therefore MGM’s motion, which seeks a judgment holding Grokster and
Streamcast liable for copyright infringement, is likely to be granted. This will
allow MGM to proceed on its claims for damages and injunctive relief.
The Court also observed that as ”[w]e stated in Sony Corp. of America v.
Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984),
. . . ‘the lines between direct infringement, contributory infringement and
vicarious liability are not clearly drawn’.” Slip op. at 12, n. 9. Accordingly, the
Court ruled that:
For the same reasons that Sony took the staple-article doctrine of patent law as a
model for its copyright safe-harbor rule, the inducement rule, too, is a sensible
one for copyright. We adopt it here, holding that one who distributes a device
with the object of promoting its use to infringe copyright, as shown by clear
expression or other affirmative steps taken to foster infringement, is liable for the
resulting acts of infringement by third parties.

43
Olga Teliss v. Union of India (1985) 3 SCC 5450
The writ petitions were filed by the slum dwellers and pavement dwellers before
the Supreme Court of India. This class of people constituted nearly half the
population of the city of Bombay. The respondents - State of Maharashtra and
Bombay Municipal Corporation took a decision that all pavement dwellers and
the slum or bust dwellers in the city of Bombay will be evicted forcibly and
deported to their respective places of origin or removed to places outside the city
of Bombay section 314 of the Bombay Municipal Corporation Act, 1888.
Pursuant to that decision, the pavement dwellings of some of the petitioners were
in fact demolished by the Bombay Municipal Corporation. The petitioners
challenge the order of the Bombay Municipal Corporation of eviction as being
unreasonable and unjust without providing with alternative living facility. The
petitioners claimed right to livelihood as a part of their right under Article 21 of
the Constitution that is right to life under Article 32. Moreover, petitioners
contended that sections 312, 313 and 314 of the Bombay Municipal Corporation
Act are invalid as violating Articles 14, 19 and 21.
The decision of the Supreme Court in this case was based on the humanistic
approach of the judges and the Apex Court stepped into the activist role. The
Hon'ble Supreme Court held that the slum dwellers must get the alternative
shelter if they are evicted from the pavements. Although, the eviction orders were
held to be valid under article 14 and 19 of the Constitution. Infact, the right to life
was once again enlarged to engulf the right to livelihood as being a part of liberty
of an individual. The decision of the Court also focused on the concept of the
welfare state and reliance though not expressly but impliedly was placed on the
Directive Principles of the State Policies under the Constitution.
The decision of this case essentially falls back on the premise of the positivism.
The judgment delivered by C.J., YV.Chandrachud is solely based on the concept
of the analytical positivism of Britain. The letter of law was considered to be
paramount. The Supreme Court focused on both the premises, that is, reformation
and superiority of the law. In Para 28, Justice Chandrachud took the approach
propounded by Hans Kelson, where he considers constitution as a highest norm
or the Grundnorm. According to Kelson, Grundnorm is the basic norm which
determines the content and gives validity to other norms derived from it. On this
basis, Justice Chandrachud, observes in Para 28 that,
There can be no estoppel against the Constitution. The Constitution is not only
the paramount law of the land but, it is the source and sustenance of all laws. Its
provisions are conceived in public interest and are intended to serve public
purpose.
Furthermore, it is the theory of the "Father of the English Jurisprudence" - Jeremy
Bentham (1748-1832) that was reiterated by the Apex Court in true sense.
Bentham talked about the reform of the substantive law by the way of reforming
the structure of law.

44
Brown v. Board of Education overruled Plessy v. Ferguson

In the Plessy case, the Supreme Court decided by a 7-1 margin that separate but
equal public facilities could be provided to different racial groups. In his majority
opinion, Justice Henry Billings Brown pointed to schools as an example of the
legality of segregation. “The most common instance of this is connected with the
establishment of separate schools for white and colored children, which has been
held to be a valid exercise of the legislative power even by courts of States where
the political rights of the colored race have been longest and most earnestly
enforced,” he said. The lone dissenter, Justice John Marshall Harlan, wrote, “In
my opinion, the judgment this day rendered will, in time, prove to be quite as
pernicious as the decision made by this tribunal in the Dred Scott Case” “Our
Constitution is color-blind, and neither knows nor tolerates classes among
citizens,” he added. The Plessy decision institutionalized Jim Crow laws that
allowed racial segregation to continue for decades. By 1951, the issue was
heading back to the Court for review, and the outlook didn’t look promising for
the forces that had united to overturn the Plessy decision. The NAACP and its
attorney, Thurgood Marshall, had been litigating segregation in court for years
and had won some isolated victories. The Brown case was a combination of five
cases involving segregation at public schools in Kansas, Delaware, Virginia,
South Carolina, and the District of Columbia. Oliver Brown, the father of lead
plaintiff Linda Brown, sued on her behalf after Linda was refused admission to
an all-white secondary public school in Topeka, Kansas. The court decided in
June 1953 to hear additional arguments in the case later in the year. But in
September 1953, Chief Justice Vinson died suddenly from a heart attack.
President Dwight Eisenhower had promised the next Supreme Court opening to
the politically powerful Earl Warren, the former Governor of California. Warren
was appointed Chief Justice and the court met in a private session in December
to discuss the Brown case. Two justices took notes of the meeting, which indicate
that Warren made a powerful opening statement that made it clear the Court was
heading toward the end of segregation. Warren talked about the abilities of
Marshall and the legal team from the NAACP. “If oral argument proved anything,
the arguments of Negro counsel proved that they are not inferior. I don’t see how
we can continue in this day and age to set one group apart from the rest and say
that they are not entitled to exactly the same treatment as all others,” Warren said.
“At present, my instincts and tentative feelings would lead me to say that in these
cases we should abolish, in a tolerant way, the practice of segregation in public
schools,” he said.
Warren also made it clear he would work with the justices to find “unanimity and
uniformity, even if we have some differences.” On May 17, 1954, Warren read
the final decision: The Supreme Court was unanimous in its decision that
segregation must end. In its next session, it would tackle the issue of how that
would happen. “We conclude that in the field of public education the doctrine of

45
‘separate but equal’ has no place. Separate educational facilities are inherently
unequal,” Warren said.

Young v. Bristol Aeroplane Co. Ltd. L.R. (1944 K.B. 718)

In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House
of Lords observed that 'Incuria' literally means 'carelessness'. In practice per
incuriam appears to mean per ignoratium. English courts have developed this
principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided
and ignored if it is rendered, 'in ignoratium of a statute or other binding authority.
The same has been accepted, approved and adopted by this court while
interpreting Article 141 of the Constitution which embodies the doctrine of
precedents as a matter of law.

Golak Nath v. Union of India AIR 1980 SC 1643

The immediate facts of the case were that the family of one William Golak Nath
had over 500 acres of property in Punjab. Acting under Punjab Security and Land
Tenures Act, 1953 which was placed in 9th Schedule by the 17th Constitutional
Amendment Act, 1964 the state government intimated to petitioner that he can
now only possess 30 acres of land & rest will be treated as surplus. Aggrieved by
this intimation of the state government petitioner filed a writ petition u/a 32 of
Indian constitution and pleaded the violation of his FR’s mentioned u/a 19(1)(f)
i.e. Right to Hold & acquire property, 19(1)(f) Right to practice any profession &
14 (Equality before Law & Equal protection of laws).
The judgment inter alia provides for Prospective Overruling of the law laid down
by this Judgment. The decision to prospectively overrule earlier decisions was a
smart and reasonable move played by the Judiciary. The doctrine of prospective
overruling implies that the effects of the law to be laid down will be applicable
on the future dates only i.e. past decisions will not be affected by this decision.
Prospective Overruling was chosen by the majority because of the following
reasons:
The majority in order to save the nation from the chaos of retrospective operation
and the judicial branch from multiple litigations that may follow after the decision
opted for prospective overruling. This was in order to minimize the negative
impact of the judgment invalidating the earlier constitutional amendments.
Another reason because of which the majority opted for prospective overruling
was since the decision in Golaknath was that parliament cannot amend
Fundamental rights, therefore, all of the previous amendments would be invalid
and unconstitutional. However, these amendments were in consonance & in strict
accordance with the laws laid down in Shankari Prasad and Sajjan Singh,
therefore they were valid as per the previous law.
Justice Hidayatullah also supported Prospective Overruling by opining that
previous decisions should not be affected by the ratio laid down by the present
decision.

46
Mr. X v. Hospital Z, (1998) 8 SCC 296

Civil Appeal No. 4641 of 1998 arose out of an order made by the National
Consumer Disputes Redressal Commission (for short ’the Commission’)
dismissing a petition and also an application for interim relief summarily by an
order made on 3.7.1998 on the ground that the appellant should seek his remedy
in a Civil Court.
2 2 The case that arose for consideration before this Court, in brief, is as follows
:
The appellant completed his studies leading to Degree of MBBS from Jawaharlal
Institute of Post Graduate Medical Education and Research, Chandigarh in the
year 1988. In June, 1990 he joined the Nagaland State Medical and Health Service
as Assistant Surgeon Grade-I and thereafter he was selected for admission to MD
Pharmacology. However, he was continued in service on the condition that he
would join his duties after completing his studies. Later on, he was given
admission in Diploma in Ophthalmalogy in September, 1991 and he completed
that course in April, 1993 and rejoined his service in the Nagaland State as
Assistant Surgeon Grade-I as Junior Specialist. He was deputed to accompany his
uncle who was a Minister of Transport and Communication to the respondent
Hospital at Chennai and who was diagnosed as suffering from Aortic Anuerism.
As the patient was anaemic, the surgery was postponed. The appellant and his
driver offered to donate blood and blood samples of the appellant were sent for
testing. In the meanwhile, the patient was operated upon for Aortic Anuerism and
was discharged from the Hospital on 10.6.1995 and the appellant and his driver
took him is Dimapur. The appellant was engaged to be married which was
scheduled to be held on 12.12.1995.
The appellant, his fiancee and his mother-in-law left for Darjeeling and Kolkata
to do some shopping and thereafter on 18.10.1995 they returned to Kohima. On
12.11.1995 the Minister of Transport and Communication called the appellant’s
brother-in-law and sister to his residence and informed that the appellant’s
marriage was being called off: that the appellant’s blood was tested at Hospital;
that it was found to be HIV positive; that this information had been furnished to
him by a Doctor [who was impleaded as respondent No. 2]; that he had of his
own accord reconfirmed the appellant’s HIV status by personally calling the
respondent No. 2 and was informed by him of the same. Therefore, the marriage
of the appellant was called off on account of his HIV positive status by his
brother-in-law. Next day the appellant went to the Hospital for further
confirmation and it was confirmed that he was HIV positive. The appellant tried
to contact the Director of the Hospital to enquire about the unauthorized
disclosure by the Hospital about his HIV status as he was unable to obtain any
information from the management regarding the said disclosure. As a result
thereof, he was forced to leave Kohima as several people including the appellant’s

47
own family members and certain other members of the community were now
aware of the appellant’s HIV positive status and he was socially ostracized.
Aggrieved by the unauthorized disclosure and on the basis that the Hospital had
a duty to maintain the confidentiality of personal medical information of the
appellant, he filed a petition before the Commission seeking compensation from
the respondents for breach of their duty to maintain confidentiality and
consequential discrimination, loss in earnings and social ostracism. For interim
relief an interlocutory application was also filed. In those circumstances, the
Commission dismissed the petition summarily and directed him to initiate civil
proceeding for an appropriate relief.
3 3 A Special Leave Petition was filed before this Court. This Court made an
order on 21.9.1988 dismissing the said petition. However, in the course of the
order several findings have been given, particularly those relating to "suspended
right to many". In that proceeding, this Court heard only the appellant and there
was no issue of notice to any other person nor this Court had occasion to hear any
of the persons representing the HIV or AIDS infected persons or their rights,
much less any of the Non Government Organizations which are doing work in
the field were heard. In those circumstances, a writ petition was filed under
Article 32 of the Constitution before this Court for setting aside the said
judgment. However, in the proceedings dated 7.2.2000 it was noted that prayer
was deleted and the other prayer which indirectly concerned the correctness of
the judgment already passed was also deleted. However, the petition was ordered
to be treated as an application for clarification or directions in the case already
decided by this Court. In the course of the order it was observed that:
"We direct the office shall not treat this as a writ petition filed under Article 32 ,
but shall register it separately as an IA for clarification/directions in C.A. No.
4641/1998. Notice of this IA returnable within two weeks shall be issued to
National Aids Control organization. Union of India and Indian Medical
Association which is already represented in IA Nos. 2-3. Notice shall also go to
Medical Council of India. Dasti service is permitted in addition."
4 4 By an order dated 2.9.2001, it has been further directed that the I.As. should
be listed before a three-Judge Bench.
5 5 In I.A. 2/1999 filed by the impleaded petitioner, the petitioner has raised the
question whether a person suffering from HIV (+) contracting marriage with a
willing partner after disclosing the factum of disease to that partner will be
committing an offence within the meaning of Sections 269 and 270 , IPC. In
substance, the petitioner wants the Court to clarify that there is no bar for the
marriage, if the healthy spouse consents to marry in spite of being made aware of
the fact that the other spouse is suffering from the said disease.
6 6 The various organizations to which the notice was issued have also entered
their appearance before this Court and filed plethora of material giving their
respective stands. The practical difficulties in

48
ensuring disclosure to the person proposed to be married or in monitoring such
cases are pointed out. It is unnecessary to examine these matters in any detail
inasmuch as in our view this Court had rested the decision on the facts of the case
that it was open to the Hospital or the Doctor concerned to reveal such
information to person related to the girl whom he intended to marry and she had
a right to know about the HIV positive status of the appellant. If that was So, there
was no need for this Court to go further and declare in general as to what rights
and obligations arise in such context as to right to privacy or confidentiality or
whether such persons are entitled to be married or not in the event such persons
marry they would commit an offence under law or whether such right is
suspended during the period of illness. Therefore, all those observations made by
this Court in the aforesaid matter were necessary, particularly when there was no
consideration of the matter after notice to all the parties concerned.
7 In that view of the mater, we hold that the observations made by this Court,
except to the extent of holding as stated earlier that the appellant’s right was not
affected in any manner in revealing his HIV positive status to the relatives of his
fiancee, are uncalled for. We dispose of these applications with these
observations.

Daryo v. State of U.P.

In the leading case of Daryao & Others v. State of UP & Others, the Supreme
Court has placed the doctrine of Res Judicata on a high pedestal, considering the
binding character of judgments pronounced by competent courts as an essential
part of the rule of law. Gajendragadhkar, J. rightly observed: “it is in the interest
of the public at large that a finality should attach to the binding decisions
pronounced by courts of competent jurisdiction.” If this principle form the
foundation of the general rule of Res Judicata it cannot be treated as irrelevant or
inadmissible even in dealing with fundamental rights in petitions filed under
article 32.The court, in these circumstances, held that if a petition filed by a party
under article 226 is considered on merits and is dismissed, the decision thus
pronounced would constitute Res Judicata and bind the parties unless it is
otherwise modified or reversed in appeal to other appropriate proceedings
permissible under the constitution. It would not be open to a party to ignore the
said judgment and move to the Supreme Court under article 32 by an original
petition made on the same facts and for obtaining the same or similar orders.

49
Navtej Johar v Union of India

The Reference 10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring
―right to sexualityǁ, ―right to sexual autonomyǁ and ―right to choice of a
sexual partnerǁ to be part of the right to life guaranteed under Article 21 of the
Constitution of India and further to declare Section 377 of the Indian Penal Code
(for short, ―IPCǁ) to be unconstitutional. When the said Writ Petition was listed
before a three-Judge Bench on 2 (2014) 1 SCC 1 3 (2009) 111 DRJ 1 12
08.01.2018, the Court referred to a two-Judge Bench decision rendered in Suresh
Koushal (supra) wherein this Court had overturned the decision rendered by the
Division Bench of the Delhi High Court in Naz Foundation (supra). It was
submitted by Mr. Arvind Datar, learned senior counsel appearing for the writ
petitioners, on the said occasion that the two-Judge Bench in Suresh Koushal
(supra) had been guided by social morality leaning on majoritarian perception
whereas the issue, in actuality, needed to be debated upon in the backdrop of
constitutional morality. A contention was also advanced that the interpretation
placed in Suresh Kumar (supra) upon Article 21 of the Constitution is extremely
narrow and, in fact, the Court has been basically guided by Article 14 of the
Constitution. Reliance was placed on the pronouncement in NALSA case
wherein this Court had emphasized on ―gender identity and sexual orientationǁ.
Attention of this Court was also invited to a nineJudge Bench decision in K.S.
Puttaswamy and another v. Union of India and others 4 wherein the majority,
speaking through Chandrachud, J., has opined that sexual orientation is an
essential component of rights guaranteed under the Constitution which are not 4
(2017) 10 SCC 1 13 formulated on majoritarian favour or acceptance. Kaul, J, in
his concurring opinion, referred to the decision in Mosley v. News Group
Newspapers Ltd. 5 to highlight that the emphasis for individual‘s freedom to
conduct his sex life and personal relationships as he wishes, subject to the
permitted exceptions, countervails public interest. The further submission that
was advanced by Mr. Datar was that privacy of the individual having been put on
such a high pedestal and sexual orientation having been emphasized in the
NALSA case, Section 377 IPC cannot be construed as a reasonable restriction as
that would have the potentiality to destroy the individual autonomy and sexual
orientation. It is an accepted principle of interpretation of statutes that a provision
does not become unconstitutional merely because there can be abuse of the same.
Similarly, though a provision on the statute book is not invoked on many
occasions, yet it does not fall into the sphere of the doctrine of desuetude.
However, Suresh Koushal's case has been guided by the aforesaid doctrine of
desuetude. 5 [2008] EWHC 1777 (QB) 14 12. Appreciating the said submissions,
the three-Judge Bench stated that:- ―Certain other aspects need to be noted.
Section 377 IPC uses the phraseology ―carnal intercourse against the order of
natureǁ. The determination of order of nature is not a constant phenomenon.
Social morality also changes from age to age. The law copes with life and

50
accordingly change takes place. The morality that public perceives, the
Constitution may not conceive of. The individual autonomy and also individual
orientation cannot be atrophied unless the restriction is regarded as reasonable to
yield to the morality of the Constitution. What is natural to one may not be natural
to the other but the said natural orientation and choice cannot be allowed to cross
the boundaries of law and as the confines of law cannot tamper or curtail the
inherent right embedded in an individual under Article 21 of the Constitution. A
section of people or individuals who exercise their choice should never remain in
a state of fear. When we say so, we may not be understood to have stated that
there should not be fear of law because fear of law builds civilised society. But
that law must have the acceptability of the Constitutional parameters. That is the
litmus test. It is necessary to note, in the course of hearing on a query being made
and Mr. Datar very fairly stated that he does not intend to challenge that part of
Section 377 which relates to carnal intercourse with animals and that apart, he
confines to consenting acts between two adults. As far as the first aspect is
concerned, that is absolutely beyond debate. As far as the second aspect is
concerned, that needs to be debated. The consent between two adults has to be
the primary pre-condition. Otherwise the children would become prey, and
protection of the children in all spheres has to be guarded and protected. Taking
all the apsects in a cumulative manner, we are of the view, the decision in Suresh
Kumar Koushal's case (supra) requires re-consideration.ǁ The three-Judge Bench
expressed the opinion that the issues raised should be answered by a larger Bench
and, accordingly, referred the matter to the larger Bench. That is how the matter
has been placed before us.

M.C. Mehta and Rylands

Check negligence 3 in torts

51
 RELEVANT ARTICLES:

Sl. No. Topic Pg. No.

1. Preamble 2
2. Articles 3
3. The UN Charter 6
4. Statute of the International Court of Justice 8
5. Civil Procedure Code 8
6. Preamble- in detail 9

1
PREAMBLE
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a _1[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC]
and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the _2[unity and
integrity of the Nation];

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,

1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.

2
 ARTICLES:
Fundamental Rights-

¡ Article 12- Definition In this part, unless the context otherwise requires,
the State includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the
Government of India.
¡ Article 13- {Laws inconsistent with or in derogation of the fundamental
rights} ... The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void.
¡ Article 14-18- Right to Equality the State cannot deny equality before
law and equal protection of law to any person within India. The
expression ‘equality before law’ is a negative concept and the State has a
duty to abstain from doing any act which is discriminatory in nature.
¡ Article 15 (1)- Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.
¡ Article 16- gives the guarantee of equality of opportunity in matters of
public employment. Article 16(1) & 16(2) have laid down a general rule
that there shall be equal opportunity for all citizens and thus emphasizes
on universality of Indian Citizenship.
• Article 17- Abolition of Untouchability. Untouchability is abolished and
its practice in any form is forbidden. The enforcement of any disability
arising out of Untouchability shall be an offence punishable in
accordance with law. Practice of untouchability is an offence and anyone
doing so is punishable by law.
• Article 18- Abolition of titles. No title, not being a military or academic
distinction, shall be conferred by the State.
-No citizen of India shall accept any title from any foreign State.
-No person who is not a citizen of India shall, while he holds any office
of profit or trust under the State, accept without the consent of the President any
title from any foreign State.
• Article 19- Right to Freedom. Protection of certain rights regarding
freedom of speech etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;

3
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

• Article 20- Protection in respect of conviction for offence. No person

shall be convicted of any offence except for violation of a law in force at
the time of the commission of the Act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence.
• Article 21- Protection of life and personal liberty. No person shall be
deprived of his life or personal liberty except according to procedure
established by law. If an act of private individual amounts to
encroachment upon the personal liberty or deprivation of life of other
person.
• Article 21-A Right to education- The Constitution (Eighty-sixth
Amendment) Act, 2002 inserted it in the Constitution of India to provide
free and compulsory education of all children in the age group of six to
fourteen years as a Fundamental Right in such a manner as the State may,
by law, determine.
• Article 22- Protection against arrest and detention in certain cases. No
person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult, and to be defended by, a legal practitioner
of his choice.
• Article 23- Prohibition of traffic in human beings and forced labour.
Prohibits the traffic in human beings and forced labour such as begar.
The Human Trafficking is the illegal trade in human beings for the
purposes of commercial sexual exploitation, prostitution or forced labour.
It is the modern form of slavery.
• Article 26- Freedom to manage religious affairs. The freedom to manage
religious affairs is provided by Article 26. This Article gives the right to
every religious denomination, or any section thereof, to exercise the
rights that it stipulates. However, this right has to be exercised in a
manner that is in conformity with public order, morality, and health.
• Article 32 provides the right to Constitutional remedies which means that
a person has right to move to Supreme Court (and high courts also) for
getting his fundamental rights protected. While Supreme Court has power
to issue writs under Article 32, High Courts have been given same
powers under Article 226.
• Article 131- gives both the Governments a forum to fight on legal issues
and not on mere political issues. Thus, the order given by the
Government of India to the State Governments ordering the Chief

4
 Minister to tender advice to the Governor of the State is not a mere
political issue but a legal right. It provides for the original jurisdiction in
any dispute between the Government of India and one or more states,
between the Government of India and any state or states on one side and
one or more states on the other, and between two or more states.
• Article 141- The law declared by the Supreme Court shall be binding on
all courts within the territory of India.
• Article 241- (1) Parliament may by law constitute a High Court for
a [Union territory] or declare any court in any [such territory] to be a
High Court for all or any of the purposes of this Constitution.
(2) The provisions of Chapter V of Part VI shall apply in relation to every
High Court referred to in clause (1) as they apply in relation to a High Court
referred to in article 214 subject to such modifications or exceptions as
Parliament may by law provide.
(3) Subject to the provisions of this Constitution and to the provisions of
any law of the appropriate Legislature made by virtue of powers conferred on
that Legislature by or under this Constitution, every High Court exercising
jurisdiction immediately before the commencement of the Constitution
(Seventh Amendment) Act, 1956, in relation to any Union territory shall
continue to exercise such jurisdiction in relation to that territory after such
commencement.
(4) Nothing in this article derogates from the power of Parliament to extend
or exclude the jurisdiction of a High Court for a State to, or from, any Union
territory or part thereof.]
• Article 245- subject to this constitution, parliament can make laws for
whole or part of territory of India. Such a regulation is so powerful that it
can repeal or amend a law made by parliament also with respect to these
territories.
• Article 255- Distribution of Legislative Powers
Requirements as to recommendations and previous sanctions to be regarded as
matters of procedure only.-
No Act of Parliament or of the Legislature of a State_221***, and no provision
in any such Act, shall be invalid by reason only that some recommendation or
previous sanction required by this Constitution was not given, if assent to that
Act was given-
(a) where the recommendation required was that of the Governor, either by the
Governor or by the President;
(b) where the recommendation required was that of the Rajpramukh, either by
the Rajpramukh or by the President;
(c) where the recommendation or previous sanction required was that of the
President, by the President.
(***221. The words and letters "specified in Part A or Part B of the First Schedule"
omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch.)

5
 The UN Charter:
Preamble

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

• to save succeeding generations from the scourge of war, which twice in our lifetime has brought
untold sorrow to mankind, and
• to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small, and
• to establish conditions under which justice and respect for the obligations arising from treaties and
other sources of international law can be maintained, and
• to promote social progress and better standards of life in larger freedom,

AND FOR THESE ENDS

• to practice tolerance and live together in peace with one another as good neighbours, and
• to unite our strength to maintain international peace and security, and
• to ensure, by the acceptance of principles and the institution of methods, that armed force shall
not be used, save in the common interest, and
• to employ international machinery for the promotion of the economic and social advancement of
all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO

ACCOMPLISH THESE AIMS
Accordingly, our respective Governments, through representatives assembled in the city of San
Francisco, who have exhibited their full powers found to be in good and due form, have agreed to
the present Charter of the United Nations and do hereby establish an international organization to be
known as the United Nations.

Article 1
The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression of
acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in
conformity with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace;

6
2. To develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace;
3. To achieve international co-operation in solving international problems of an economic, social,
cultural, or humanitarian character, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, language, or religion;
and
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.

4. All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall require the Members to
submit such matters to settlement under the present Charter; but this principle shall not prejudice
the application of enforcement measures under Chapter Vll. (Action with respect to the threats to the
peace, breaches of the peace, and acts of aggression)

7
 Statute of the International Court of Justice:
Article 38
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;

international custom, as evidence of a general practice accepted as law;

the general principles of law recognized by civilized nations;

subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono("according to the right and good" or "from equity and
conscience"), if the parties agree thereto.

Civil Procedure Code:

Section 11 (Amendment) Act, 2002
Amendment of Order XIV.- In the First Schedule, in Order XIV, for rule 5 as it
stood immediately before its omission by clause (ii) of section 24 of the Code of
Civil Procedure (Amendment) Act, 1999 (46 of 1999)], the following rule shall
be substituted, namely:-"5. Power to amend, and strike out, issues.-
(1) The Court may at any time before passing a decree amend the issues or frame
additional issues on such terms as it thinks fit, and all such amendments or
additional issues as may be necessary for determining the matters in controversy
between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues
that appear to it to be wrongly framed or introduced.".

8
 PREAMBLE- in detail
The Constitution of India is fundamental law of land. It is a socio, economic, and
political instrument with a revolutionary domain. Every Constitution in the world
outshines with a Preamble and so, the Indian Constitution also commences with
a Preamble, which reflects the ideals, aspirations, expectations and objectivity of
the people of India. The Preamble contains the aim and objectives of the Indian
Republic and enshrines the whole philosophy and legislative intent of the Indian
Constitution in a nutshell. No reading of any Constitution can be complete
without reading Preamble. It acts as a theme around which a legislation revolves.

Preamble gives the idea about the following :

• The source of the Constitution;

• Nature of Indian State;
• A statement of its objectives; and
• The date of its adoption

The legislative intent of the Preamble of the Constitution is based on the “open-
minded perseverance” drafted and moved by Pandit Nehru and adopted by the
Constituent Assembly on 26 November, 1949.

Thus, on analysing the key aspects of the Preamble, it can be divided into three
parts by reference to it qualitative characteristics. The Preamble is

1. DECLARATORY, as to the enactment of the Preamble to the

Constitution, i.e., the people of India in their Constituent Assembly
adopted, enacted and gave to themselves this Constitution.
2. REVOLUTIONARY, in the sense of the legislative intent of the
preamble, i.e., whereby the people of India solemnly resolved to
constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens.
3. INFORMATIVE, as to the source of the Preamble to the Constitution,
i.e., “WE, THE PEOPLE OF INDIA”.

9
The Preamble provides the legislative intent of India to be a welfare State

The terminology of the Preamble enshrines the fundamental values and guiding
principles which forms a base for the Constitution of India. It provides the
legislative intent of India to be a welfare State. The Preamble serves as a
pathfinder for the Constitution and judges interpret the ideology of the provisions
of the Constitution in its light.

• Sovereign

In Synthetics & Chemicals Ltd. v. State of Uttar Pradesh [1], Hon’ble Supreme
Court observed that the word “sovereign” means that State has the power to
legislate on any subject in conformity with constitutional limitations. It means
supreme or independence. There are two kinds of sovereignty, viz, internally and
externally sovereign. Being internally sovereign refers to having a free
government which is directly elected by the people which make laws that govern
the people. Externally sovereign means free from the control of any foreign power
or compliances. All the people are free in their limit to do their work in their own
opinion. A country cannot have its own Constitution if it is not sovereign.

• Socialist

The word “socialist” was added to the Preamble by the 42nd Amendment,
1976 during the Emergency. The socialist character of the Indian Constitution is
emphasized in the Preamble, which spells out the aspiration of the people to
secure to all its citizens social, economic and political justice. It implies social
and economic equality. Having the standards of being socially equal means the
absence of inequity on the grounds of caste, creed, sex, colour, religion or
language. It means everyone has equal status and has equal access to the
opportunities. Economic stability means that equal distribution of wealth which
leads to a decent standard of living for all.

• Secular

The word “secular” was added to the Preamble by the 42nd Amendment,
1976 during the Emergency. The Constitution of India stands for a secular State,

10
i.e., The State has no official religion. The concept of Secularism expands its
horizons to give full opportunity to profess, practice and propagate the religion
of their choice. The Constitution along with providing the guarantee to person’s
freedom of choice of his religion and conscience also ensures freedom who has
no religion and restrains the State from making any discrimination on grounds of
religion.

Most important components of secularism are as under :

• Equality is incorporated in Article 14;

• Prohibition against discrimination on the ground of religion, caste, etc.,
is incorporated in Article 15 and Article 16;
• Freedom of speech and expression and all other important freedoms of
all the citizens are conferred under Article 19 and Article 21;
• Right to practice religion is conferred under Article 25 to 28;
• Fundamental duty of the State to enact uniform civil laws treating all
the citizens as equal is imposed by Article 44;
• Sentiment of the majority of the people towards the cow and against its
slaughter was incorporated in Article 48

In S.R. Bommai v. Union of India [2], Hon’ble Supreme Court held that
Secularism is the basic feature of the Constitution.

The concept of secularism to put it, in a nutshell, is that the “State” will have no
religion observed in Bal Patil v. Union of India [3].

It was held in M.P. Gopalakrishnan Nair v. State of Kerala [4] that being a
secular State does not mean having an atheist society.

• Democratic

The word democratic is derived from the Greek word ‘demos’ which means
‘people’ and ‘kratos’ which means ‘authority’. The opening lines of the Preamble
“We, the people of India” and the concluding lines “give to ourselves this
Constitution” portrays the democratic spirit involved in the Constitution. The

11
people of India elect their governments at all levels, i.e., Union, State and local
by a system of “one man one vote”.

• Republic

The word republic is derived from res publica, which means public property or
commonwealth. A republic means a form of government in which the head of the
state is an elected person and not a hereditary monarch like the king or the queen
in Great Britain. Being republic means the vesting of the political sovereignty in
the people and election of the head of the state is done by the people of the nation
for a fixed term. In the broad sense, the word republic refers to a government in
which no one holds the public power as a proprietary right.

Four Objectives of Indian State

The objectivity of the Preamble can be derived from the four keywords mentioned
therein, i.e., JUSTICE, LIBERTY, EQUALITY and FRATERNITY. In P.A.
Inamdar v. State of Maharashtra [5], it was observed that if Indian polity has to
be educated and educated with excellence, it is a well-settled principle of the
golden goals set out in the Preamble of the Constitution, i.e., JUSTICE,
LIBERTY, EQUALITY, and FRATERNITY.

• Justice

The term “justice” signifies three distinct types of justice, viz, social, political and
economic which is guaranteed through Fundamental Rights and Directive
Principles of State Policy enshrined under Part III and Part IV respectively of The
Constitution of India, 1949.

Social Justice means the abolition of discrimination on the basis of sex, colour,
creed, race or religion. It means the abolition of untouchability. It also includes
improvement in the condition of backward classes, i.e., Scheduled Caste,
Scheduled Tribes and Other Backward Classes.

12
Economic Justice herein mentioned refers to the elimination of glaring
inequalities of wealth, income and property. A combination of social justice and
economic justice is what known as ‘distributive justice’.

Political Justice implies that all citizens should have equal political rights, equal
access to all political offices and equal voice in the government.

• Equality

A right without the sanction from the authority has no meaning. Such a right can
not be enjoyed by of the members of the community. The legislative intent of the
makers of the Constitution was to ensure equality of status and opportunity for
all and to provide a basis for ultimately establishing an egalitarian society.
Equality of status and opportunity as enshrined in the Preamble is secured to all
firstly, by abolition of all kinds of distinctions and biases by the State between
citizens on the grounds of religion, race, caste, sex and secondly, by equal access
to open public places, by abolishing untouchability and titles, by securing
equality for opportunity in the employment sector or appointment to any office
under the State.

• Liberty

Liberty is the most cherished possession of a man. The Preamble of the

Constitution professes to secure the liberty of thought, expression, belief, faith
and worship. These freedoms are guaranteed through Fundamental Rights
enshrined in Part III of The Constitution of India, 1949. Liberty is the power of
doing what is allowed by law. The constitutional law of the country has fully
guaranteed liberty through its mechanisms, judiciary and established rules of
justiciability. Liberty does not mean ‘license’ to do what one likes and has to be
enjoyed within the limitations mentioned in the Constitution itself. In short, the
liberty conceived by the Preamble is not absolute.

• Fraternity

The expression “unity and integrity of the Nation” has been substituted by 42nd
Amendment,1976 to the Preamble of the Constitution. Fraternity means the sense

13
of brotherhood. It is a feeling that all people are children of the same soil, the
same motherland. Brotherhood is a particular kind of relationship irrespective of
gender and generation. In a country like India, it is necessary to prioritize the
expression of the unity and integrity that can be preserved only by a spirit of
brotherhood. India has one citizenship and every citizen should feel that he is
Indian first irrespective of another basis.

The Preamble: A part of the Constitution or not

The debated topic as to Preamble whether part of Constitution or not was decided
in two leading cases:

Berubari Case [6]

• Berubari Case on the Constitution of India on the implementation of the

Indo-Pak agreement relating to Berubari union and exchange of
enclaves came up for consideration by a bench consisting of eight
judges.
• The Court held that Preamble to the Constitution is “a key to open the
mind of the framers of the Constitution” but it is not a part of the
Constitution.

Kesavananda Bharati case [7]

This case has created a history. A bench of 13 judges had assembled and sat in its
original jurisdiction hearing the writ petition. It was held in this case that:

1. The Preamble is the part of the Constitution

2. The Preamble acts as a guiding lamp to interpret the legislative intent of
statutes as well as interpretation of the Constitution of India.

The basic understanding of the Preamble is incomplete without the reference

of Mandal Commission case [8] which was decided by nine judges bench. It was
observed that the objectivity of securing to its citizen justice, equality, liberty and

14
fraternity displays administration by the public of the highest order in
Constitution of India.

Can Preamble be amended?

The Constitution of India can be amended without disturbing the basic structure
of the Constitution. As it has been held in Kesavananda Bharati case that the
Preamble is the part of the Constitution, it means that the Preamble of the
Constitution can be amended.

Though till date, it has been amended only once during the period of Emergency
in 1976. This amendment is popularly known as The Constitution (Forty-second)
Amendment Act, 1976 commonly known as the 42nd Amendment, 1976. This
amendment resulted in an addition of certain principles to enhance the objectivity
and ideology of the Preamble, viz,

1. Socialist;
2. Secular; and
3. Fraternity.

In brief, yes, the Preamble to the Constitution of India can be amended.

Conclusion

• The Preamble is an integral part of the Constitution of India. It reflects

the legislative intent of the makers of the Constitution.
• It assists in broadening the horizons of the provisions of the
Constitution.
• It is not a conventional addition but an addition with the utmost value
and importance of polity which India as a social welfare state strives to
establish.
• The Preamble is a law of paramount nature of our country.
• It highlights the values, guiding principles and objectivity on which the
Indian Constitution is based.

15
References

[1] (1990) 1 SCC 109

[2] (1994) 3 SCC 1

[3] (2005) 6 SCC 690

[4] AIR 2005 SC 3053

[5] (2005) 6 SCC 537

[6] In Re: Berubari Union (1) (1960) 3 SCR 250

[7] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

[8] Indra Sawhney v. Union of India, AIR 1993 SC 477

16