LEGAL LANGUAGE

LEGAL CONCEPTS

1) Law :-

ANS- Definations:-
1) Blackstone:- Law, in its general and comprehensive sense,
signifies a rule of action, and is applied indiscriminately to all
kinds of action, whether animate or inanimate, rational or
irrational.

2) Salmond:- The law consists of the rules recognized and acted

upon in the courts of justice.

3) Austin's:- Law is the command of the sovereign.

In a broad sense the term "law" would include any rule of

action, as when one speaks of the law of gravity and other
scientific "laws".
Kinds of laws:-

1) Criminal law:-
Criminal law is enforced by the police. Instances like homicide,
rape, assault, theft are dealt with under Criminal Law. Offences
that are dedicated towards any particular person, however, are
seen as being towards all people, though it doesn’t come under
the Criminal law.

For example, if the house is burgled then the theft is towards

the person, however, it threatens all house owners as a result
of they may have burgled their homes. As a result of the view is
taken that everyone is threatened by the crime this law is
handled the public services and not by private investigators.

2) Civil law:-
The Civil law is a law that looks at actions that aren’t the crime.
It’s a part of the law dealing with disputes between
organizations and people. It covers totally different areas
similar to defamation, custody of youngsters, proper to
training, divorce, commerce union membership, property
disputes, possession points, Copy Proper, insurance coverage
claims and many others.

For instance, an individual by pressure took over another

person property with out his/her permission and never vacating
it or one firm sue another over a trade dispute or car crash
victims claims from the driver for loss or injury sustained in an
accident.

3) Common law:-
The Common Law also referred to as case law or Judicial
precedent or judge-made law is a section of the law which is
derived from the judicial determination of courts and
comparable tribunals. Because the identity suggests it’s
common to all. The instance set by increased courts is binding
on instances tried to decrease courts. Lower courts may choose
to overturn the precedent, however, this not often happens.

An instance of a typical legislation marriage is when two

individuals have lived collectively for 10 or extra years. They’ve
thereby and authorized rights to share their property due to it.

4. Statutory law:-
Statute or Statutory Law is a law established by an act of the
legislature that’s signed by the executive or legislative body. For
state law, the acts are handled by the state legislature and
signed by the state governor. In rare circumstances, the chief
(President or governor) could refuse to signal the invoice or
reject it, which is named a “veto.”

A billed is proposed within the parliament and voted upon. For

instance, you’re given a quotation for violating the velocity
restrict you could have damaged an automobile and visitors
legislation.
2) Right:-

ANS- Definations:-

1) Salmond:- A right as an interest which is recognized and

protected by a rule of law.

2) Austin:- A party has a right when others are bound or obliged

by law to do, or forbear, something towards, or in regard to,
him.

3) Holland:- A right as the ability possessed by a person to

control others' actions and self-protection with the help and
assistance of the State.

4) Dr. Sethna:- A right is any interest, vested or created under a

law or a contract.

Kinds Of Rights:-

1) Perfect and imperfect rights:- A right which cannot be

enforced in a court of law. All cases of imperfect rights are
exceptions to the maxim, Ubi jus ibi remedium
2) Proprietary and personal rights :- Proprietary rights are
rights in respect of property, as for instance, a man's rights over
his house, furniture, car, etc., whereas personal rights are rights
with regard to a man's status or person, as for instance, his
right of freedom of speech.

3) Inheritable and uninheritable rights:- A right is inheritable if

it survives its owner; it is uninheritable if it dies with its owner.

4) Positive and negative rights

If A has bought goods from B, the latter has a positive right to

claim the purchase price from A. But, if A is taken as an
apprentice by B in his business, and A agrees not to serve a rival
business for two years, B has a negative right to ensure that, for
two years, A forbears from serving anyone else in a competing
business.

5) Rights in re propria and rights in re aliena

If A is the owner of a house, he has a right in propria over that

house. Later, he mortgages this house to B, and gives him
possession thereof. B becomes the temporary occupier of the
house, but A is still the owner of the house and has the right to
redeem the mortgage. This right, which is for the time being,
detached from as complete ownership of the house, is a right in
re aliena.

3) Differences between Civil Wrong and Criminal Wrong

1) The wrongs which are against the benefit of the public, and
the state are labelled as criminal wrongs
whereas wrongs that affect the interests of a particular
individual are called civil wrongs.

2) The criminal wrongs include acts such as murder, robbery,

assault, theft etc.
while the less serious wrongs like trespassing, nuisance,
environmental pollution, copyright infringement etc. are
recognised as civil wrongs.

3) In the case of criminal wrongs, the state takes the action

against the offender by hiring a public prosecutor to prosecute
the case in the court; this is called the system of public
prosecutions.
However, this is not the case of civil wrongs, where one party
has cause injury to the other or their property, and the injured
sues the other and hire lawyers to represent them in the court.
4) Sometimes criminal law is also known as public laws because
they affect the whole society. Ex. If a person commits a murder,
then he is a threat to the whole society and it is up to the state
to protect the society.
But if a person has injured the reputation of another individual,
it does not concern the whole society. So civil laws are also
known as private laws.

5) In a criminal wrong, the presence of intention of causing the

injury/committing the act plays an important role in the
judgement but in a civil wrong, the presence or absence of the
intention cause the injury does not play any role deciding the
liability of the injuries. If a person watches a deer run behind a
bush and shoots at it and hurts another person who was behind
it instead, he will not be guilty. While if a person makes loud
noise which troubles his neighbours, it wouldn’t matter
whether it was his intention to do so or not.

Criminal Law Civil Law

Criminal Law deals with
offences that are committed
against the society.
The punishment of the offence
would be as per the
seriousness of the criminal
Civil Law is a general law. It
solves disputes between 2
organisations or individuals.
To settle the dispute, a
compensation is provided to
the aggrieved party in civil
offence committed. Also, a fine law cases. No such
could be imposed.
In the case of Criminal law it
the Government of India that
needs to file the petition.
Criminal law punishes the
convicts, protects the citizens
and ensures law and order in
the land.
The petition cannot be filed
directly in a court but a
complaint must be first
registered with the police and
its investigation needs to be
carried out. Thereafter a case
can be filed in the court.
The accused is prosecuted in
the court of law
In these cases the court is
empowered charge a fine,
imprison the guilty of a crime,
or discharge the defendant.
punishment is given in such
cases.
Civil Law to exist needs the
aggrieved individual or
organisation.
The objective of Civil Law is
to protect the rights of an
individual or organisation. It
needs to ensure the wrongs
done to be rectified against
the sufferer.
The aggrieved party can file
a case in a tribunal or a
court
The victim or aggrieved
party can sue those who
offended it
The court in such cases can
only pass judgement to
compensate for damage
done to the aggrieved party.
Here, the defendant is The defendant here is
considered either guilty or not considered to be either
guilty by the court. liable or not liable.
Civil Law deals with
Criminal law deals with specific
Property, Money, Housing,
serious crimes like murder,
Divorce, custody of a child in
rape, robbery etc.
the event of divorce etc.

4) Difference between Acquittal & Discharge

ANS- Definition of Acquittal:- Acquittal is the verdict given by

the judge, that legally confirms the innocence of the accused.
Hence, it is given when the court finds that the accused has not
committed the crime, charged on him. It implies that the
prosecutor remained unsuccessful to prove in the court that
the case is beyond a reasonable doubt.

Definition of Discharge

According to Section 227 of the Criminal Procedure Code, on

considering the record of the case and documents submitted in
relation to the case, and after hearing both the parties, the
Judge believes that there are not enough grounds for further
proceedings against the accused, the accused shall be
discharged.
 BASIS FOR
ACQUITTAL DISCHARGE
COMPARISON

Meaning Acquittal means Discharge means a legal

legally freeing the order of release given
accused, when he is by the magistrate when
found innocent by the grounds on which
the court, after he/she is arrested came
considering all the out as false or
facts and evidence unsubstantiated.
submitted in this
regard.

What is it? Verdict in a criminal Order in a criminal

case, of not guilty of case, of not sufficient
the offence. grounds for legal
proceedings

Rearrest An acquitted person A person who is

cannot be rearrested discharged can be
on the same rearrested on the same
grounds. grounds.

Results from Complainant or Any evidence against

the absence of withdrawal or the accused.
 BASIS FOR
ACQUITTAL DISCHARGE
COMPARISON

compounding of
offence.

Charges A person can be A person can be

discharged before acquitted only after the
framing charges. framing of charges.

Innocence Acquittal is ordered Discharge is given

when the innocence because of the non-
of the accused is availability of any prima
proven after a full facie evidence against
inquiry in a judicial the accused.
process.

Second Trial Restrains the second Fresh proceedings can

trial be initiated

5) Types of Writs in India

The Supreme Court of India is the defender of the fundamental
rights of the citizens. For that, it has original and wide powers. It
issues five kinds of writs for enforcing the fundamental rights of
the citizens. The five types of writs are:
1. Habeas Corpus
 2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto

1) Habeas Corpus

The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the
body of.’ This writ is used to enforce the fundamental right of
individual liberty against unlawful detention. Through Habeas
Corpus, Supreme Court/High Court orders one person who has
arrested another person to bring the body of the latter before
the court.

Facts about Habeas Corpus in India:

 The Supreme Court or High Court can issue this writ against
both private and public authorities.
 Habeas Corpus can not be issued in the following cases:
 When detention is lawful

 When the proceeding is for contempt of a legislature

or a court
 Detention is by a competent court

 Detention is outside the jurisdiction of the court

2) Mandamus
The literal meaning of this writ is ‘We command.’ This writ is
used by the court to order the public official who has failed to
perform his duty or refused to do his duty, to resume his work.
Besides public officials, Mandamus can be issued against any
public body, a corporation, an inferior court, a tribunal, or
government for the same purpose.

Facts about Mandamus in India:

 Unlike Habeas Corpus, Mandamus cannot be issued against

a private individual
 Mandamus can not be issued in the following cases:
 To enforce departmental instruction that does not

possess statutory force

 To order someone to work when the kind of work is

discretionary and not mandatory

 To enforce a contractual obligation

 Mandamus can’t be issued against the

Indian President or State Governors
 Against the Chief Justice of a High Court acting in a

judicial capacity

3) Prohibition
The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is
higher in position issues a Prohibition writ against a court that is
lower in position to prevent the latter from exceeding its
jurisdiction or usurping a jurisdiction that it does not possess. It
directs inactivity.

Facts about Prohibition in India:

 Writ of Prohibition can only be issued against judicial and

quasi-judicial authorities.
 It can’t be issued against administrative authorities,
legislative bodies and private individuals or bodies.

4) Certiorari
The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’
or ‘To be informed.’ This writ is issued by a court higher in
authority to a lower court or tribunal ordering them either to
transfer a case pending with them to itself or quash their order
in a case. It is issued on the grounds of an excess of jurisdiction
or lack of jurisdiction or error of law. It not only prevents but also
cures for the mistakes in the judiciary.

Facts about Certiorari in India:

 Pre-1991: The writ of Certiorari used to be issued only

against judicial and quasi-judicial authorities and not
against administrative authorities
  Post-1991: The Supreme Court ruled that the certiorari can
be issued even against administrative authorities affecting
the rights of individuals
 It cannot be issued against legislative bodies and private
individuals or bodies.

Quo-Warranto
The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what
authority or warrant.’ Supreme Court or High Court issue this
writ to prevent illegal usurpation of a public office by a person.
Through this writ, the court enquires into the legality of a claim
of a person to a public office

Facts about Quo-Warranto in India:

 Quo-Warranto can be issued only when the substantive

public office of a permanent character created by a statute
or by the Constitution is involved
 It can’t be issued against private or ministerial office