JURISPRUDENCE

JURIS MEANS LEGAL & PRUDENCE

MEANS KNOWLEDGE
• 1) What is Law – Law means non- optional rules regulating
human behaviour for welfare of a given society made by the
following:
• a) Natural Law Theory( theory of God) this theory ruled the
world for more than 2500 years but no scientific base
• b) Theory of Command – According to John Austin sovereign
issues commands to his subject with a warning that if
command is not followed, people will be punished
• c) Professor Hart’s theory of inner voice/ soul known as
theory of Union of primary and secondary law. Primary laws
impose duties and obligations. Secondary laws are of three
types:
• 1) Rule of Recognition
• 2) Rule of Adjudication
• 3) Rule of change or amendment
• The primary laws are recognized by constitution, adjudicated
by courts and made/amended by parliament
• d) Theory of American realism i.e law in books are good but
law in practice may be bad
• Legal Concepts
• A) Legal presumption- irrebutable- child below 7 years will
not commit offence intentionally. Rebutable- person missing
for more than 7 years is presumed as dead in the eyes of law
• B) Legal Friction – Company is artificial person. Fiction of
deemed notice
• Legal Principles
• 1) PNJ
• 2)Resjudicata
• 3)Promissory Estoppel
• 4) He who comes to equity must come with clean hands
• 5) Delay defeats equity and hence law of limitation
• Rules of Interpretation
• 1 ) Golden Rule- if result is absurd, go into statement of
objects and reasons
• 2) Mischief Rule – what was the situation before and
suppress the mischief
• 3) Special Law will over ride general law
• 4) Judicial Precedence ( Case Laws)
• 5) Obiter – Dicta ( Casual observation of the court. Obiter
dicta of supreme court is binding)
• Judicial system in India
• Civil proceedings – at the lower level we have district court,
thereafter high court and supreme court
• Criminal proceeding – At the lower level we have FCJM,
thereafter session court and high court and supreme court
• Judicial Review of executive and parliamentary actions(JR)

• Writ petition to supreme court ( article 32 )

• Special leave petition(SLP) to supreme court (article 136)
• Writ petition to high court ( article 226 & 227)
• Types of Writ
• 1) Writ of Mandamus- do your duty
• 2) Writ of certiorari- Quash wrong proceedings
• 3) Writ of Prohibition – prevent wrong order from being
passed
• 4) Habeas Corpus- You have body to answer(missing persons)
5) Quo Warranto- show me your I card
PIL – Pil is nothing but writ. Locus standi is wider

Legal Rights of ownership/owner

1) Right of Possession
2) Right of enjoyment
3) Right of Sale/disposal

Mortgage- All other rights are with mortgagee except right of

redemption by making payment, which is with mortgagor
• Pledge – Possession with pledgee with right to sell in case of
default
• Hypothication – Possession with the borrower (example loan
for taxi)
• Lien – Right to Detain Property in case of default
• Bailment ( movable goods only) possession with the bailee
but other rights with the bailor
• BASIC STRUCTURE OF CONSTITUTION
• Fundamental rights ( part III)
• Directive principles ( part IV)
• Basic structure means proper balance between part III & part
IV
• According to supreme court of India parliament can use power
to amend the constitution granted under article 368 provided it
does not disturb the above basic structure
• Basic Structure theory can be divided in following two phases:
• 1) Pre Kesavanand Bharati Case – In 1955 in the case of Sajan
Singh v/s State of Rajasthan, supreme court held that there is
nothing like basic structure & under article 368 parliament can
amend any part of the constitution
• 2) Post Kesavanad Bharati case – In this case supreme court
held that power to amend constitution under article 368
cannot be used by parliament to disturb the basic structure
and any such amendment would be struck down