Legal Language Legal Writing - General English -test Assignment

Legal Language Including Legal Writing & General English Internal Assignment

Q1.
Q. 1 Explain the concepts
a) Wrong: Civil wrong & criminal wrong.
b) Conviction, Acquittal, Discharge.

Answer:
A) Concept Wrong: Civil wrong & criminal wrong.

Legal Concepts
• Legal Concepts - General ideas/concepts uniformly
followed throughout Western legal history by legislators in
law-making & also by legal scholars in their reconstruction
and development of law.
• Characteristics of Legal Concepts:
Certainty
Universal recognition
Uniformity in meaning
Reliance by by Courts/legislatures/administration
Development and refining through judicial or scholarly
interpretation
* Eg: Rights, Possession ,Ownership and Crime

Concept of Wrong:
• Wrong - A violation of the legal rights of another (Black’s
Legal Dictionary)
• The idea of rights naturally suggests the correlative one of
wrongs; for every right is capable of being violated.
• Eg: A right to live in personal security, a wrong on the part
of him who commits personal violence.
• Generally , the law is intended for the establishment and
maintenance of rights, in fact it deals both with rights and
wrongs.
• It first fixes the character and definition of rights, and then,
with a view to their effectual security, proceeds to define
wrongs, and to devise the means by which the latter shall
be prevented or redressed
• Wrongs: Private and Public

Private and Public Wrongs:

• Private Wrong: Result from violation of private
rights or as a consequence of the duty of care
• Denote the injury sustained by the individual,
and consequently as subjects for civil redress
or compensation
• Eg: Torts/Civil Wrongs, Breach of Contract
• Public Wrongs: Violations of public rights and
duties which affect the whole community
• Eg: Crimes and Misdemeanors

Crimes:
• Crime: an action or omission which constitutes an
offence and is punishable by law
• An act committed in violation of law where the
consequence of conviction by a court is punishment
• An action that is deemed injurious to the public welf
are and is legally prohibited
• It is duty of the State to protect its citizens & others
from crimes ( State is the custodian of law & order in
the society- in Welfare State)
• Crime – used interchangeably with offence

Crime-Fundamental Concepts:
• Elements of Crime: Human being, Mens rea or guilty
intention, Actus reus or illegal act or omission, and Injury to
another human being
[“actus non facit reum nisi mens sit rea” which means that,
the guilty intention and guilty act together constitute a
crime]
• Stages Of A Crime: Intention, Preparation, Attempt &
Accomplishment/Commission
• Criminal Law in India : IPC,1860 & Cr.P.C, 1973 etc
• Punishments: Death, Life Imprisonment, Term
Imprisonment,Fine,Confiscation of Property
• Theories of Punishment: Deterrent Theory, Retributive
Theory, Preventive Theory, Reformative Theory, Expiatory
Theory

Civil Wrings/Torts:
• Civil Wrongs: A civil wrong or wrong is a cause of
action under the law of the governing body. Eg: Tort
, breach of contract, and breach of trust
• Tort: a civil wrong involving a private party repressible
by monetary compensation (Tortum in
French=Curved/not straight)
• Salmond- It is a civil wrong for which the remedy is a
common law action for unliquidated damages and
which is not exclusively the breach of a trust or other
merely equitable obligation.
• Kinds of Torts: Intentional torts, Negligence torts, &
Strict liability torts

Ubi jus ibi remedium:

• Damnum sine injuria- Gloucester Grammar School Case
• Injuria sine damno -Ashby v. White
• Tortious Remedies - judicial & extra-judicial.
• Judicial remedies :(i) Damages, (ii) Injunction and (iii)
Restitution of property
• Extra-Judicial Remedies :Self Help, Expulsion of
Tresspassers,Re-entry of Land etc
• Tortious Liability of State in India: Dilution of doctrine of
Sovereign Functions, Vicarious liability of State for actions
of its servants.

Difference between Crime and Civil wrongs

1)
Crime is a Wrong against Society
Civil Wrong is against a private individual or individuals
2)
Remedy against crime is Punishment
Remedy against civil wrong is Damages

3)
The proceeding in case of Crime is are criminal proceeding
In case of Civil wrong are civil proceedings

4)
In Crime intention is essential element.
In civil it is not relevant

5)
In Crime , State takes action against Criminal
Aggrieved person takes action

B) Concept Conviction, Acquittal, Discharge.

The Code of Criminal Procedure, 1973 is the main legislation that deals with and lists out
how the procedure of substantial criminal law is to proceed in India.

Meaning of acquittal:
Acquittal in general terms means that the accused is innocent and has not committed the
offence he/she was accused of. The decision of acquittal is given by the judge after
inspecting all the evidence and hearing arguments of the defence and the prosecution. It
implies that no evidence has been brought up to prove that the accused has carried out an
offence as per the Code of Criminal Procedure, 1973.

It is defined in Section 232 of the said court. The order of acquittal may be given out by the
judge or the magistrate(in certain cases).
Relevant provisions under CrPC
Section 232- Acquittal
If the Judge, after examining the evidence and arguments by the prosecution and defense, is
of the opinion that the accused is not guilty of the offence as he/she believes there is no
evidence backing the blame, an order of acquittal shall be given.

Discharge:
Discharge is defined in Section 227 of the Code. If after hearing both the parties and
examining evidence, the judge believes that there is no sufficient ground on which the case
may move forward against the accused, he/she shall give an order for discharge and shall
record his/her reasons for doing so.

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.

So, the accused can be discharged when sufficient evidence is not present against him. The
court has to state why the accused has been discharged from the case.

Important: Discharge of the accused can be given by the Judge only after taking into account
the formal statement by one of the parties to the case, in the charge sheet or the concerned
case law.
Elements of Discharge
The court must take into account the charge sheet and documents presented, by the Police.
The essential elements of Discharge are:

The Magistrate may examine the Accused if required.

Equal opportunity is given to both parties of being heard.
Charges imposed on the accused are baseless and false, in the view of the magistrate
Conviction:
In law, a conviction is the verdict that usually results when a court of law finds a defendant
guilty of a crime.[1] The opposite of a conviction is an acquittal (that is, "not guilty"), there
can also be a verdict of "not proven", which counts as an acquittal. There are also cases in
which the court orders that a defendant not be convicted, despite being found guilty, the
mechanism for this is a discharge.
After a defendant is convicted, the court determines the appropriate sentence as a
punishment.

Section 2 (b) in The Code Of Criminal Procedure, 1973 charge under the Crpc, 1973 shall
state the offence with which the accused is charged. The motive behind a charge is precisely
and succinctly (brief and clearly expressed manner) to let know the accused individual, the
issue for which he is being charged.

Essentials of Charge
The following are the contents that are a must for a charge:

Stating the Offence

Describing the offence by the name
Defining and understanding the offense
Mentioning the law and section of law
Substantive requirements of offense to be complied with
Charge’s language
Accused person’s previous convictions
Details of Time, Place and Person
Particulars of the way in which the offence was committed
Thing in respect of which offense is committed
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Q2.
Q. 2 Explain the concepts
a) Legal representatives & Legal heirs.
b) Justice, Rights and Remedy.

((not attended this question/ Not Answered))

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Q3.
Q. 3 Explain the Legal Maxim with relevant case laws.
*Ubi jus ibi remedium

Answer:
Ubi Jus Ibi Remedium:
Ubi Jus Ibi Remedium is a Latin term which means ‘Where there is a right, there is a
remedy’. This means if there is any violation of the right; the law provides a remedy to the
affected person. The maxim can be expressed as that any individual won’t endure wrong
without a remedy, it implies that once it is demonstrated that the right was penetrated then
the value will give a reasonable remedy.

This means where the law confers a right it also gives the remedy or right of action for
interference of that right. This Maxim can be phrased that any person will not suffer a
wrong without any remedy. This means no wrong should be allowed to go without any
compensation if it can be redressed by the court of law. According to Justice Pollock, right
and wrong are contrary to each other. Right actions are those which are prescribed by law,
on the Other hand, wrong actions are those which are not prescribed by Law. Where there
is wrong action it means there is an omission of duty. Hence, the existence of duty involves
a right that it also provides the possibility of wrong. Duty, right and wrong is the legal aspect
of the same rules and events. If there exists a duty to do something and it is done properly
then it is said the duty is discharged and the person who is legally bound is now freed. But,
when duty is not fulfilled, then the right of action for interference of right arises or remedy
exists.

Development of this maxim- The law of tort is said to be the development of the maxim’ Ubi
jus ibi remedium’. The word ‘jus’ means Legal authority to do something and ‘ remedium’
means that the person has the right of action in the court of law. This maxim also says that
there is no remedy with any wrong and only those person could stand before the court of
law whose right has been violated. The person must be injured in the exercise of duty. There
are many political and moral wrongs but they are not actionable as they are not recognized
by the law. This Maxim doesn’t mean there is a remedy for every possible wrong. For
example- a contract which was required to be made on stamped paper may be made orally;
in such circumstances, harm may be caused to other person and yet no legal remedy is
available.

Where there is a right, there is a remedy

The fundamental elements of the maxim are ‘Jus’ and ‘remedium’. Jus means the legal
authority to do or to demand something; and remedium may be defined as the right of a
person to approach the Court of Law for the wrong done to him, or the means given by law,
for the recovery or assertion of a right. The principle means whenever one’s right is violated,
the law provides opportunities like to recover from the damage caused by the wrong.

Essential elements of the maxim

This Maxim is applied only in a case where legal rights exist.

A wrongful act must have been done which violates the legal rights of a person.
This Maxim is applicable if any Legal injury had been caused to any person, otherwise, the
maxim damnum Sine injuria will be used which means damage without injury.

Limitations of Maxim:
This Maxim is not applicable to moral and political wrong as they are not actionable ( not
recognized by law)
In those cases where a proper remedy is given in case of moral breach of right under
common law, this Maxim doesn’t apply.
This Maxim doesn’t apply in cases where no legal damage has been caused to any person.
This Maxim doesn’t apply in case of marriage vows as personal commitment because ball
these are the promises made without consideration and are based on fiduciary.
In the case of Public nuisance unless and until the plaintiff shows that he suffered more
injury than other members or people of the society, this doctrine doesn’t apply.
This Maxim is not applicable in those cases where there is negligence on the part of the
plaintiff.
Case in law
In Sardar Amarjit Singh Kalra v. Promod Gupta and Ors.,
The Court held that the principle of Ubi jus ibi remedium is recognized as a basic principle of
the law. The SC also held that it is the duty of the courts to protect and maintain the right of
parties and help them instead of denying them relief.

In Shivkumar Chadha v. Municipal corporation of Delhi

The Supreme Court held that where statutory enactments doesn’t provide any remedy but
only creates Rights and liabilities if any person complains of his rights being violated or
wrongly affected such person can approach the civil court on the basis of the principle of
legislation that where there is a right, there is a remedy.
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Q4.
Q. 4 Explain the Legal Maxim with relevant case laws.
* Volenti non fit injuria.
Answer:
Volenti Non-Fit Injuria means when a person has voluntarily agreed to undertake risk for
any activity or some act that they have volunteered for. When applied it is an absolute
defense from liability. This defence makes it a requirement for the claimant to have agreed
out of free consent, there should be an agreement between the two parties regarding the
same. The Agreement made can be either expressed and implied. The claimant should also
be made aware of the risks and its full knowledge and its extent.

Volenti non fit injuria simple translation , it means that things suffered voluntarily are not
fit/deemed to be an injury; or an injury cannot arise out of a voluntary act (of the aggrieved
party).

Defence of Volenti – Non-Fit Injuria

This defence absolves the tortfeasor from any liability if it is proved that the tort arose out
of an informed and willful act of the injured party. So, the consent of the aggrieved party
forms the essence of this defence.

Point to be consider:
the claimant was aware of all that and still chose to run that risk.

fine line between knowledge of the risk and acceptance of the risk.

The acceptance of the risk may be implied

the consent has to be free consent and cannot be mitigated by factors such as coercion,
undue influence, misrepresentation, etc.
Consentis also a subjective element

The act of the tortfeasor cannot be an illegal/unlawful act, in order to claim the defence of
Volenti Non-Fit Injuria. Also, the harm caused cannot exceed the harm consented, unless it
is foreseeable that excess harm will be caused. The harm caused by acts undertaken
negligently cannot be said to have been consented to.

Volenti Non-Fit Injuria can thus be claimed when there is:

Knowledge of the risk, or the risk being such that there is a reasonable expectation that it
might occur, and thus, the plaintiff is also expected to be aware of it;
Consent/acceptance of the risk – either implied or expressed.
Illegal Act

“The defence of Volenti Non-Fit Injuria can be denied by the Court after taking into
consideration the facts of the case and circumstances with regard to the same.

The defence of Volenti non-Fit Injuria cannot be given to the defendants when the claimant
has not been informed of the risks properly or the agreement has been coerced using force
or any other means that are illegal.

There are many instances where it has been found that the loss is being suffered by a
person due to the act of the other, but for which he has no remedy in tort law. It so happens
because the person suffering the harm has consented for the same. Example, where a
spectator of a cricket match gets hit by the cricket ball at the stadium without any part of
negligence and wrongful intention on the part of player or the defendant, in that situation
the plaintiff doesn’t have any remedy under tort law as he himself has consented for such
risk at the time of purchasing the tickets. This consent is a good defence for the defendant
under tort law and this is concept is termed as ‘Volenti Non-Fitt Injuria’. The term Volenti
Non Fit Injuria is a Latin maxim which refers to a willing person, an injury is not done. It is a
common law doctrine, according to this doctrine the person who voluntarily gives consent
for any harm to suffer would not be liable to claim any damages for the same and this
consent serves as a good defence against the plaintiff. The person who himself voluntarily
waived or abandoned his right cannot have any claim over it. Provided this doctrine is only
applicable to the extent that a normally prudent person would have assumed to have
suffered the risk.”
Consent has to be obtained freely as was held in

Case Reference:
Lakshmi rajan vs. Malar hospital

In this case, the plaintiff had a tumour on her breast and went to a hospital to get it
surgically removed; she consented to the surgical procedure for the removal of the tumour.
The tumour had nothing to do with her uterus. The surgeon not only removed the tumour,
but also removed her uterus. The hospital was held liable because they had performed an
action without the consent of the patient and the court found the defendants liable.

If the consent is obtained by fraud, the consent is not real and cannot be used as a defence
in a tort.
If the consent is obtained from a person who is forced to give his consent and is not given
the freedom of choice. That consent is not taken into account because the person is no
longer free to choose his options. This is usually present in master servant relationships
where, the servant is forced to commit an act under pressure. Thus there is no principle of
volenti non fit injuria does not apply to a servant if he is forced to carry out an act despite
his protests.
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Q5.
Q. 5 Explain the Legal Maxim with relevant case laws.
* Audi alteram, partem.
Answer:

Audi Alteram Partem states that no person shall be condemned, punished by a law court
without being heard. Or in other words a party cannot be left to undergo any degree of
punishment without an opportunity of being heard. This is considered to be a principle of
fundamental justice or equity. For any judgement to be legally valid it should be passed after
giving both the parties the right to defend themselves and put forward there side of the
story. The maxim audi alteram partem is divided into two facets in accordance with the
principle of natural justice. The first being notice followed by hearing. All the effected
parties must be given a notice before the proceedings takes place. The notice id given to
make the parties aware of the facts and issues in the case that is going to be adjudicated.
This is done in order to give the parties sufficient amount of time in order to prepare for
their defence. It is a sine qua non of the right of fair hearing. The second facet of audi
alteram partam is the rule of hearing. He parties should be allowed to represent themselves
and state the facts in accordance to their understanding. They should be heard by the court
of law.

Audi Alteram Partem: the rule of fair hearing

rules of Natural Justice
The principle of audi alteram partem is the basic concept of the principle of natural justice.
The omnipotency inherent in the doctrine is that no one should be condemned unheard. In
the field of administrative action, this principle has been applied to ensure fair play and
justice to affected persons. Its application depends upon the factual matrix to improve
administrative efficiency, expediency and to mete out justice. The procedure adopted must
be just and fair. The expression audi alteram partem simply implies that a person must be
given an opportunity to defend himself

The rule of fair hearing is a code of procedure, and hence covers every stage through which
an administrative adjudication passes, starting from notice to final determination.
1. Right To Notice
2. Right To Know The Evidence Against Him
3. Right To Present Case And Evidence
4. The Right To Rebut Adverse Evidence
5. No Evidence Should be Taken at The Back of the Other Party
6. Institutional Decision or One Who Decides Must Hear
7. Rule Against Dictation
8. Financial Capacity To Attend The Enquiry
9. Decision Post-Haste
10. Should The Third Party To Dispute Be Heard
11. Reasoned Decision
12. Enquiry Report to be Furnished or Not

Exceptions To The Rule of Natural Justice

Application of the principles of natural justice can be excluded either expressly or by
necessary implication, subject to the provisions of Articles 14 and 21 of the constitution.

1) Exclusion Emergency
2) Exclusion In Cases Of Confidentiality
3) Exclusion In Case Of Purely Administrative Matters
4) Exclusion Based On Impracticability
5) Exclusion In Cases Of Interim Preventive Action
6) Exclusion In Cases of Legislative Action
7) Where No Right Of The Person Is Infringed
8) Exclusion In Case of Statutory Exception Or Necessity
9) Exclusion In Case Of Contractual Arrangement
10) Exclusion In Case of Government Policy Decision
11) ‘Useless Formality’ Theory
Origin:

The principles of natural justice is based on fairness, reasonableness, equality and equity.
The principle of Audi Alteram Partem is one of the basic concepts of the principle of natural
justice. This doctrine gives a right that one shall be condemned of anything without being
heard. This is based on the principles of natural justice and ensures a just and fair hearing.
This legal maxim gives both the parties the right to be heard. The maxim is made with an
aim to give an opportunity to both the parties to defend them. Any decision made without
giving fair opportunity to both the parties is held to be against the principal of natural
justice.

Illustration

For example whenever any person is arrested that person needs to be brought before the
court of law within twenty four hours of his arrest. This is known as Hebeas Corpous.

If any person is not being able to represent themselves through a lawyer then it the duty of
the state to provide for legal aid. If any accused is not able to afford legal services then he
has a right to free legal aid.

Case Reference:

In Suresh Koshy George v. The University of Kerala and Others [1] it was observed that the
aim of the rules of natural justice is to secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate only in areas not covered by any law validly
made. In other words they do not supplant the law of the land but supplement it. The
concept of natural justice has undergone a great deal of change in recent years. In the past
it was thought that it included just two rules namely : (1) no one shall be a judge in his own
case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a
party without affording him a reasonable hearing (audi alterampartem).
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