PIL

5th September 2023

Structure of Previous Classes

1. What are the subjects of international law?

2. States as subjects of international law.

3. International Organizations as subjects of international law.

In the Kulbushan Jadhav Case, Pakistan denied consular access and violated international
obligation which is reflected in VCCR article 36.

In the case, an Indian national’s right was violated. Jadhav could not take Pakistan to the
international court. This is because it was a national matter. First, the countries will try to solve
the dispute via peaceful means, and then as last resort move to the international court.

Sovereignty is the exclusive right of the state to decide what rules and obligations we are bound
by and what responsibilities we have. Eg: A sovereign authority issues passport which is used to
issue visa. If another state arrests a national from a state, it has to inform the state.

Every wrong will amount to damage – is another principle of international law.

General Principles of Law can come from municipal law and international law as well. In any
jurisdiction, if any wrong is committed, the remedy for the same is available as well. There is a
tribunal to take care of the remedy. This has been said in the ICJ Advisory Opinion as well.

Traditionally, international organizations can be accorded functional protection.

ICJ Advisory Opinion Case

Facts:

In September 1948 Count Folke Bernadotte and other members of the United Nations Mission to
Palestine were allegedly assassinated by the then Israeli Government in Jerusalem. Mr.
Bernadotte was an agent of the United Nations and the United Nations Mediator in Palestine. He
along with other members of the United Nations were assassinated during the performance of
their duties for the organisation. Later the UN General Assembly’s question concerning
reparation for injuries suffered in the service of the United Nations was referred to the ICJ.
(Resolution of the General Assembly dated December 3rd 1948)
Question of Law:

Whether UNO can on behalf of A (Swedish national) seek reparation from Israel?

Decision:

The United Nations as an organisation has been given ‘international personality’ due to the fact
that without legal personhood it cannot fulfil its main purposes and aims, which are conferred
upon it by the UN Charter.

The Organisation has the capacity to present a claim in the circumstances referred to, on the
basis of the breach by the defendant State of an obligation towards the Organisation itself.

Moreover, the Organisation possesses rights and obligations imposed upon it by the UN Charter.
These rights and duties are different from those of its member states. Although the right is not
expressly stated in the UN Charter, the UN has been given the right to claim reparation for
injuries suffered in the services because it is essential to the discharge of its functions.

What would happen if there is conflict between the claim of states and claim of
international organization?

ICJ Reparation Case;

There is no hard and fast rule and it will depend on the facts of the case. It is ambiguous whether
diplomatic protection is to be exercised or functional protection should be exercised. Both the
claims can logically co-exist. There is no hierarchy Initially, goodwill and common sense should
be resorted to. In cases where goodwill and common sense are not able to work, there should be
conventions in place and they should be resorted to for the same. In such cases, it has to be seen
that for one wrong, you cannot seek reparation twice. The defendant state cannot be expected to
pay the damage twice even if there are different grounds for claim.

In such a case, there is no rule of lan n:hich assigns priority to the one or to the other, or which
compels either the State or the Organization to refrain from bri~ging an international claim. The
Court sees no reason why the parties concerned should not find solutions inspired by goodwill
and common sense, and as between the Organization and its Members it draws attention to their
duty to render "every assistance" provided by -4rticle 2, paragraph 5, of the Charter. hlthoiigh the
bases of the two claims are different, that doeî not mean that the defendant State can be
compelled to pay the reparation due in respect of the damage twice over. International tribunals
are already familiar with the problem of a claim in which two or more national States are
interested and they know how to protect the defendant State in such a case.
The risk of competition between the Organization and the national State can be reduced or
eliminated either by a general convention or by agreements entered into in each particular case.
There is no doubt that in due course a practice will be developed, and it is worthy of note that
already certain States whose nationals have been iniured in the ~erformance of missions
undertaken for the Organization have shown a reasonable and CO-operative disposition to find a
practical solution.

Although the bases of the two claims are different, that does not mean that the Defendant State
can be compelled to pay the reparation due in respect of the damage twice over. International
tribunals are already familiar with the problem of a claim in which two or more national States
are interested. and thev know how to protect the defendant State in such a case. The risk of
competition between the Organization and the national State can be reduced or eliminated either
by a general convention or by agreements entered into in each particular case. There is no doubt
that in due course a practice will be developed, and it is worthy of note that already certain States
whose nationals have been injured in the performance of missions undertaken for the
Organization have shown a reasonable and CO-operative disposition to find a practical solution.”

ICRC as an International Organization

It has its own legal mandates. It has observer status in UN. It is an NGO registered under Swiss
Law. Its role and status as an international organization has been contested. The position is
unclear as of now. With the help of ICRC, the four geneva conventions were concluded. How
can an NGO decide obligations of states. Even, India advocated for an observer status for ICRC
but this should not create a precedence since ICRC is a unique organization and should be
granted an observer status.

COMPANY LAW
5th September 2023

Object Clause

There is no need of central government’s approval. Unlike other clauses, there are multiple
authorities involved, not necesaarily authorities under the ministry of corporate affairs. It is not
impacting the regulatory or jurisdictional aspect. It determines the financial operations of the
company and scope of the same. This is an extension of the business judgement rule, also called
commercial wisdom rule. All these financial decisions are internal decisions of the company and
that is why governemtn approval is excluded. Change in object clause is an extension of the
commercial wisdom of the company. Structual and cosmetic changes are not included. There has
to be an effective change.

Same goes for the registered office clause because the regulatory and jurisdictional aspect
changes with place change. Thus, central government’s approval is needed.

There are two subjective requirements:

i. Rule 13(8) read with Rule 32 of Companies Incorporation Rules

13(9) is a generic provision applicable to all kinds of companies. It states that change in objects
has to be notified to ROC.

13(8) talks about public listed companies specifically. These have been classified separately
because the process of raising money is different for these. The financing process is different-
public offering. The starting point is that of a prospectus for the general public. The general
public has to be informed about the company and the objectives. The prospectus provides all
such relevant information including the specific objective for which the money is based. You
cannot go and use the money in some other work since that would amount to fraudulent
inducement of money. The basis of the prospectus would be the memorandum. The specific
objectives are in furtherance of the memorandum. A prospectus cannot be altered after the public
offering. The purpose of the money raised (existing funds) should be the same as mentioned in
the prospectus. The money cannot be used further for any other work. The memorandum can be
amended. This creates a conflict. A prospectus ceases to exist after the public offer and this is
why it cannot be changed while on the other hand, the memorandum can very well be amended.
This is why the approval of the SEBI is necessary. Since the memorandum is about utilization of
the funds. This permission will come only when some general requirements are met. It only
follows for the public listed companies. If this is not done, it can be used as a loophole
amounting to misrepresentation of fund and fraudulent conduct. When SEBI, looks into this, the
only consideration of SEBI will be public interest. There has to be a reasonable cause for the
approval to be given. The SEBI does not look into the specific alteration – only the fact that they

Whether the public shareholders are protected are not will be determined on the basis of exit
mechanism mentioned in Rule 32. If the shareholder is a minority shareholder, an exit
opportunity has to be given to sell the shares. These shares can be sold to the company or in the
market, there has to be a mention of the same.

There is a specific share value given based on fair market values of the shares decided by the
registered valuer. This amount has to be given to the shareholder.

Checklist:
1. There are remaining, existing funds.

2. The object clause and the prospectus are different.

3. Approval needed.

4. Approval granted.

Now,

The second requirement is publication in the newspaper- both in English and vernacular
language. There has to be a notice on the website.

For the other clauses, there is no specific requirement of the approval, etc.

IOS NOTES
Ejusdem Generis

o The term literally translates to ‘of the same kind’.

o If the law lists specific classes of persons or things, and then refers to them in general, the
general statement or words only apply to the same kind of persons or things specifically
listed.

o The rule is that where the particular words have common characteristics (i.e., they form a
class), and the general word that follows should be construed as referring to that
particular class.

o This rule applies in situations wherein there is a common or general word, after a series
of specific words. The specific words act as a genus for interpretation of the general
word.

o Examples:

- Under article 24 of the Constitution, “no child shall be employed to work in any factory
or mine, or engage in any other hazardous employment”. The rule of ejusdem generis will
apply here, since there is a valid genus.
 - In the interpretation of the phrase “theatre or any other places of public announcement”,
the rule of ejusdem generis will not apply since there is no valid genus.

o The expression ejusdem generis signifies a principle of construction whereby words in a

statute which are otherwise wide but are associated in the text with more limited words,
are by implication given a restricted operation.

o The doctrine is an attempt to reconcile an incompatibility between specific and general

words in view of the other rules of construction that all words in a statute are to be given
due effect and legislature doesn’t use superfluous words.

o The rule accomplishes the purpose of giving effect to both particular words and general
words by treating the particular words as indicating the class ( or becomes a genus that is
to say have similar characteristics) and the general words as extending the provision of
the statute to everything included in that class though not specifically named by a
particular word.

Case Laws:

A. State of Bombay v. Ali Gulshan.

– This case involved the interpretation of section 6(4)(a) of the Bombay Land Requisition Act,
1948, under which, “the state government may requisition (an official order laying claims to use
property or materials), for the purpose of state or any other public purpose…”. The general
phrase here, was ‘public purpose’. It was contended that under the provision, the Appellant was
entitled to requisition premises for housing a member of a foreign consulate.

– The High Court held that we can apply the ejusdem generis rule and that the expression ‘any
other public purpose’ should be read, ejusdem generis, with the purpose of the state and
providing accommodation to a member of a foreign consulate, being the primary purpose of the
union (and not of the state), the state government had no authority to requisition the premises.

– The Supreme Court held that the High Court was in error in applying the ejusdem generis rule
because the general expression of ‘any other public purpose’, follows only a single expression
‘for the purpose of the state’,which is not a distinct genus. In the absence of a distinct genus,
there is no application of the ejusdem generis rule.

--The words should not be general.

B. The Archbishop of Canterbury Case.

This case provides for certain conditions for the doctrine of ejusdem generis to apply. They are:

– The statute contains an enumeration by specific words.

– The members of the enumeration suggest a class.

– The class is not exhausted by enumeration.

– A general reference supplementing the enumeration generally following it.

– There is no clearly manifested intent that the general term be given a broader meaning that the
doctrine requires.

When there is a clear intention of the legislature for the welfare which is not enumerated in the
meaning- it can be included in the interpretation. Eg: CSR requirement under section 135 of the
Companies Act.

C. Lilavati Bai v. Bombay State.

– In this case, the petitioner was a widow of a tenant of a certain premise, which she had vacated.
Finding the premises vacant, the respondent requisitioned it under section 6(4)(a) of the Bombay
Land Requisition Act, 1948 for the public purpose of housing a government servant.

– One of the explanations to the sub-section stated that there would be deemed to be a vacancy
when the tenant ceases to be in occupation upon termination of his tenancy, eviction, assignment
or transfer in any other manner of his interest in his premises or otherwise.

– On looking at the intent of the provision, it is evident that they had the right to take over the
property.

– Legislature intended to give it the widest possible amplitude. Hence, the rule of ejusdem
generis does not apply.

– Application of the rule is presumptive ( that is treated sufficient for proving intention unless
treated otherwise) and not pre- emptory (to take action in order to prevent something from
happening).

D. Calcutta Municipal Corporation v. East India Company Hotels Ltd. (1994).

– There were three restaurants in a hotel, and there used to be occasional musical and dance
shows.
– Section 443 of the Calcutta Municipal Corporation Act, pertaining to obtainment of license, the
terms “theatre, circus, cinema house, dancing hall” were followed by the expression “other
similar placed of public resort, recreation or amusement”. The intention and purpose of the
provision were very clear – there was no ambiguity.

– The question was whether license was required for organising music and dance shows since the
primary purpose of the establishment was to serve as a hotel.

– The High Court answered the question in the negative and in favour of EIC Hotels Ltd. by
applying the rule of ejusdem generis. It held that the general words were intended to have
restricted meaning in the sense that other similar places must fall within the class enumerated by
the specific words. It held that a restaurant, which provides amusement occasionally or
incidentally to its primary business as a hotel, it is not a place of ‘public resort’ under section
443. Hence, license was not required to be obtained.

– On appeal, the Supreme Court held that it was not necessary for the HC to rely on the rule of
ejusdem generis. The provisions of section 443 were clear and unambiguous; there was no
occasion to call into consideration the said rule. The question then was whether the activity could
bring the restaurants within the meaning of ‘dancing halls’. The Court found that the restaurants
in the hotel had dance floors, for the guests’ enjoyment. The entertainment, further, was provided
by music (including vocal music). At relevant times, cabaret shows were also performed at the
restaurant to entertain the guests.

– Hence, the Court held that the establishment fell within the ambit of a ‘dancing hall’, which
required a license under section 443 to operate. Simply because the recreation in the nature of
dancing was provided along with a posh dinner, would not make it different from a dancing hall
where drink and eatables were invariably provided.

– Therefore, the Court held that restaurants run by the hotel were places similar to dancing halls
and were bound by section 443 of the Act.

NOSCITUR A SOCIIS

The principle of Noscitur a Sociis is a rule of construction. It is one of the rules of language used
by court to interpret legislation. This means that, the meaning of an unclear word or phrase
should be determined by the words immediately surrounding it. In other words, the meaning of a
word is to be judged by the company it keeps. The questionable meaning of a doubtful word can
be derived from its association with other words.

It can be used wherever a statutory provision contains a word or phrase that is capable of bearing
more than one meaning.
This rule is explained in Maxwell on the interpretation of statutes in following words – When
two or more words susceptible of analogous meaning are coupled together, they are understood
to be used in their cognate sense. The words take their colour from and are quantified by each
other, the meaning of the general words being restricted to a sense analogous to that of the less
general.

 This maxim, which is broader than the principle of ejusdem generis, provides that the meaning
of an ambiguous word may be determined by looking into the company the word keeps.

 ‘Noscitur’ means ‘to know’ and ‘ a sociis’ means ‘association’.

 Meaning of doubtful words may be ascertained by reference to the meaning of words

associated with it.

 Questionable meaning of words or doubtful words can be derived from its association with
other words within the context of the phrase.

 If multiple words having similar meaning are put together, they are to be understood in their
collective.

 The rule means that when two or more words susceptible to analogous meanings, are clubbed
together, they are understood to be used in their cognate sense (i.e., coming from similar origin).

 Note : It cannot be used when it is clear that a word with a wider meaning is deliberately used
in order to increase the scope by the legislature (Mazdoor Sabha Case).

 For instance, in maritime law, there is a concept of ‘vessels’. The Maritime Act defines
vessels, cargo, bots, ships and ‘xyz’. How is this term ‘xyz’ to be interpreted? The common
denominator in all these terms is a voyage in water. So if meaning is to be given to ‘xyz’, it will
be figured out by looking at its associations, i.e., the company it keeps.

 Applying the noscitur rule, the court looks at:

– Analogous words (comparable meaning).

– Common origin of the word.

– Company or association the word keeps.

– Context of the word.

However, applying the rule of ejusdem generis, the court only looks at the surrounding words,
without looking at the context or the legislative intent.

[literally completed in under 3mins – no cases done by Mr. Kritika]

ADMIN LAW NOTES

5th September 2023

Principles of Natural Justice

Natural Justice v Justice of the Nature

Natural Justice stands for fairness in administrative action and the justice of the nature does not
stand for fairness. Justice of the nature is harsh and difficult. Principles of natural justice are
developed by philosophers in order to bring fairness in the administration of justice. Justice of
the nature, on the other hand stands for justice according to the fixed principles irrespective of
fairness. Justice of the nature is very crude. For example, a fundamental principle of the justice
of the nature is survival of teh fittest. But, natural justice means the fittest as well as the unfit can
both survive. The lion and the deer both can survive. So, principles of natural justice mean
fairness. Natural justice is also called fair play in action, rational justice, universal justice, social
justice, divine justice, juristic humanism. The concept of natural justice was developed to counter
the exercise of arbitrary powers of the monarchs because monarchs always said that they have
the divine power to rule and nobody questioned them. These principles were developed to
counter these claims of the monarch and bring fairness.

In America, these principles are denoted by the term due process – the process which is fair and
reasonable. This is because due process can be substantive as well as procedural. In Europe,
these are denoted by the term proportionality and indicate that there must be a balance between
the end and the means. Means must always be fair, reasonable and just. In common law world,
the term natural justice is generally used.

The concept of natural justice for fairness in action was developed in order to enable the weak to
coexist with the strong and to control the arbitrariness in governance. In western jurisdiction, the
concept of natural justice was derived from a drama ‘Antigone’ written by Polynices in 1st
century BC. This drama visualizes the concept of natural justice.

Antigone is one of the plays of a trilogy written by Sophocles called the Theban plays. Antigone
was not only daughter to Oedipus but also his sister. Oedipus unknowingly married his mother,
which makes Jocasta, Antigone’s mother and grandmother at the same time. This is a tragedy
play about Antigone disobeying the King’s law by burying her brother, Polynices. In the play
Creon (King) promises death to whoever buried Polynices when he finds out who it is. In
Antigone 3, Creon starts interrogating Antigone when he was told she was the one responsible.
Antigone denied nothing, she buried her brother proudly and unafraid of the consequences. In
Antigone 5, Creon sends Antigone to her death because of her actions. Antigone was also
Haemon’s fiance, Creon’s son. There was news that Haemon decided to kill himself and die
beside Antigone; because of this Creon tried to take back his actions, but it was too late.
Antigone was dead when he reached her and Haemon then kills himself. Haemon’s mother finds
out he killed himself and took her own life as well. The tragedy of the play is that Creon lost so
many people all because he was stubborn enough to kill a girl for burying her brother. He was
selfish and used his power for evil.

This is the genesis of western law of natural rights. The law of god states that everybody is
entitled to a dignified burial and law of god is superior to the law of the king as well. The king
ordered imprisonment for her. She committed suicide in the jail. But her words became the
foundational basis of natural justice principles for substantive and procedural actions. The
concept of natural justice developed from here.

So, the principles of natural justice are those principles which are based on essential nature and
instinct of man and his conscience and represent natural ideals of human values and hence are
universal. This is the law of god. Fairness in justice not justice according to law but justice
according to fairness. This is the concept of universal humanism. These principles have been
drawn in the beginning from the nature of man. Later on, in the medieval period these were
developed as the law of god. In the modern period, when people started doubting the existence of
god, the modern man developed the concept of natural justice based on the nature of man which
are just, universal, reasonable, fair, etc. Now, the modern man believes that these principles are
derived from the human nature itself and these are inherent in every human being. Therefore,
these are not subject to any exceptions and are superior. Ultimately, the concept of natural justice
has been conceptualized into two principles:

i. Audi Altrem Partem

No person can be punished without hearing. ‘Hear the other party.’

ii. Nemo Judex Causa Sua

Nobody should be made a judge in his own cause because our experience proves that it is very
difficult for a person to take a decision against his own interest. Therefore, if the interest of the
person is involved in any dispute, then in order to decide the dispute, the person should not have
the authority.

These principles make legal justice as human justice.