Legal Terms Archives - The Fact Factor

Contempt of Court

Hemant More — Wed, 03 Apr 2019 08:23:25 +0000

Contempt in its simple literal meaning is disgrace, scorn or disobedience. Contempt of court is the offense of being disobedient or disrespectful towards the court, its officers, or the proceedings of a court of law. Thus the contempt of court is any behavior or wrongdoing that conflicts with or challenges the authority, integrity, and superiority of the court.
These acts might include failure to comply with requests, witness tampering, withholding evidence, interruption of proceedings, or defying a court order. These wrongful acts may be committed by attorneys, officers of the court, court personnel, jurors, witnesses, protestors, or any party involved in a court proceeding. Contempt in its legal conception means disrespect to that which is entitled to legal regard.
Under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of court as civil contempt or criminal contempt
Article 129, 142 (2) and 215 of the Constitution of India is in the nature of empowering courts for the contempt. Article 129 and 142 (2) empower the Supreme Court, Article 215, empowers High Courts to punish people for their respective contempt. High Courts have been given special powers to punish contempt of subordinate courts, as per Section 10 of The Contempt of Courts Act of 1971.

Article 129:

The Supreme Court shall be a court or record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 142 part 2:

Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

Article215:

Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

The Necessity of the Concept of Contempt of Court:

The object of contempt proceedings is not to protect judges personally from criticism but to protect the public by preserving the authority of the court and the administration of justice from undue attack.
To uphold the dignity of the courts (judicial system) and the majesty of law and to keep the administration of justice unpolluted.
To protect the machinery of justice and the interests of the public.
To ensure compliance with the orders given by the courts and in their execution, and for punishing those who are responsible for the lapses in the manner of compliance.
To provide a mechanism to prevent interference in the course of justice and to maintain the authority of the law
Further, the availability of contempt jurisdiction provides efficacy to the functioning of the judicial forum and enables the enforcement of the orders on account of its deterrence effect on avoidance.

Types of Contempts:

Contempts are stated broadly to fall into two groups, viz., civil contempt and criminal contempt. civil contempts are contempts which involve a private injury occasioned by disobedience to the judgments, order or another process of the court. On the other hand, criminal contempts are right from their inception in the nature of offences.

Civil Contempt:

Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court.

Ingredients of Civil Contempt:

Any disobedience or the breach must be done willfully (governed by will).
The disobedience must be a deliberate and intentional act or omission which must be understood in contrast with the act done accidentally, without purpose and unintentional.
the making of a valid court order, knowledge of the order by respondent, the ability of the respondent to render compliance.
It excludes casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order.

Case Laws:

In Anil Ratan Sarkar vs. Hirak Ghosh, AIR 2002 SC 1405 case the court held that mere disobedience of an order, judgment or decree of a court may not be sufficient to amount to a civil contempt; the element of willingness is an indispensable requirement to bring home the charge within the Act.
In Ashok Paper Kamagar Union vs. Dharam Godha; AIR 2004 SC 105 case the Supreme Court convicted the contemner on the basis of evidence which was only of preponderant probabilities (Evidence that persuades a judge or jury to lean to one side as opposed to the other, during the course of litigation.)
In the State of Maharashtra vs. Ishwar Piraji Kalpatri 1993 Cr.L.J. 726 case the court held that the delay in implementing a final order is no different from disregarding those orders and avoiding implementing them would most certainly constitute an act of contempt.
In Dr.Sajad Majid vs. Dr.Zahoor Ahmed and anothers 1989 Cr.L.J. 2065 case mere pendency of appeal before the appellate court against the order, will not absolve the party not to comply with the order and if he so does, it will be on his risk without any legal justification and the provisions of appeal even if availed without any stay, will expose the party to contempt proceedings for non-compliance and pendency of such appeal will not protect him from facing the proceeding of non-compliance of the order.
In Santosh Kumar Srivastava vs. M.D. U.P. Rajkaiya Nirman Nigam Ltd., 2001 All.L.J.776 case the court made a distinction between a contempt proceeding and an execution proceeding – “Before a contemner is punished for non-compliance of the direction of a court, the court must not only be satisfied with the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional. The judgment-debtor is not concerned and bothered whether the disobedience to any judgment or decree was wilful.”

Criminal Contempt

Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
The definition of the term contempt in section 2 (c) makes it clear that contempt may be committed either by publication (whether by words, spoken or written, or signs) or by the doing of any other act which leads to any of the consequences contemplated in sub-clauses (i),(ii) and (iii) of subsection (c) of section 2.
Note the phrase “tends to”. It means it is not necessary that scandalising or prejudicing any court or interference must have been completed. Even though the process might have just commenced or in other words tending to scandalise or to prejudice or to interfere or to obstruct administration of justice is also criminal contempt.
It is not necessary for the contempt that the act must have been done either in the face of the court or just in front of it. The word spoken or otherwise, or published, or acts done might be outside the court but the same must be intended to scandalise or prejudice or likely to interfere with or obstruct the fair administration of justice and are punishable as criminal contempt of the court.

Case Laws:

In Hari Singh Nagra vs. Kapil Sibal, 2011 Cr.L.J. 102 at P.108 (SC) case the court held that “Scandalising the Court‟ is convenient way of describing a publication which although it does not relate to any specific case either post or pending or any specific judge, is a scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the courts and public confidence in the administration of justice.
In State vs. R.N.Patra,1976 Cri.L.J.440. case the respondent addressed to the chief justice of India as to the conduct of the District Judge and further stated that the High Court Chief Justice being in interested relationship with the District Judge cannot hold a proper enquiry. The court held that such a statement was motivated and mala fide grossly interfering with the administration of justice and lowers its authority and prestige within the meaning of section 2 (c) (i) and (iii) of the contempt of court Act.
In N. Rajgopala Rao vs. Murtaza Mujtabbi (1974) 1 ALT 170 case a news item published in the Newspaper in which an impression has been sought to be conveyed to the general reader that a dishonest person has been appointed as a judge merely because of his political affiliation with the lawyer‟s wing of the R.S.S. The motive, to common reader, would not only be attributable to the law minister or the Government but also the collegiums of Punjab & Haryana High Court and the Hon‟ble Supreme Court and to the Hon‟ble Judge of the Supreme Court who was consulted in this matter. The court held this is an effort to scandalise the appointment of Judge of Punjab & Haryana High Court thereby bringing him into disrepute in the eye of general public.
In Ananta Lal Singh vs. Alfred Henry Watson, AIR 1931 Cal 257 case the court held that comment upon an advocate which had reference to the conduct of his case might amount to contempt of court on exactly the same principle which was applicable with regard to criticism of a judge or the judgement.

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Jurisprudence

Hemant More — Tue, 02 Apr 2019 18:31:20 +0000

The word jurisprudence comes from the Latin word ‘jurisprudentia’. Juris means law and prudentia means knowledge. So jurisprudence stands for “knowledge of the law” or “wisdom of the law” or “philosophy of the law”. In general sense, Jurisprudence is the knowledge which deals with law. The study of jurisprudence started with the Romans. Bentham is known as Father of Jurisprudence. The study of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus in relation to the social existence of human being. The law should serve the purpose of social-engineering by preserving societal values and eliminating conflicting interests of individuals in society.
In its nature it is entirely a different subject from other social science because it is not codified but a growing and dynamic subject having no limitation on itself. Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation. Hence the jurisprudence is continuously growing subject and has no limited scope.
It is called both art and science. In science, we draw conclusions after making a systematic study by inventing new methods. By applying this concept we can say that jurisprudence is a science. But everybody cannot master it hence it is an art.
There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject. Definition of jurisprudence is given below.
According to Austin, the jurisprudence is the science concerned with Positive. It has nothing to do with the goodness or badness of law.
Salmond observed that “In jurisprudence, we are not concerned to derive rules from authority and apply them to the problem, we are concerned rather reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of the legal system.” It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known.

Importance of Jurisprudence:

The legal researches on jurisprudence may have their effect on contemporary socio-political thought and at the same time may themselves be influenced by different ideologies.
It serves to render the complexities of law in a more manageable and rational way which can help to improve practice in the law.
Its study helps in rationalizing the thinking the students and prepares them for an upright civil life.
The knowledge of the law and legal precepts helps the citizen to face every exigency of human affairs boldly and courageously.
The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of the law.
It has been characterized as “The eye of law.”
It helps the Judges and the Lawyers in ascertaining the true meaning of the laws passed by the legislature by providing the interpretation.
It may be helpful for legislators to understand the technicalities of law and legal precepts which is important in law-making.

Jurisprudence the Eye of Law:

The eyes are one of the most important parts of the human body. Almost all human activities and the movements of the body are possible only through them. Unless man can see anything properly, he cannot do any work. Thus eyes are the important organ of human body.
The jurisprudence functions for law in the same manner as the eyes do in the human body. The interpretation of the law is a very difficult task, it cannot be done without the help of jurisprudence.
It trains the mind of a lawyer into legal ways of thought and enables him to bring to bear on his work that legal acumen which is essential for his task.
It provides precise and unambiguous terminology, which enables a lawyer to have a clear conception of the subject.
The main function of jurisprudence is to study the origin of law, its development and its contribution towards society. The matters to birth, marriages, death, succession, etc., are equally controlled through laws. It is the well-known saying that, “ignorance of the law is no excuse,” hence it is essential to know the correct basic principles of law which are contained only in the jurisprudence.
Law is also connected with civil life. A person who obeys laws is known as a civilized citizen. A person who does not obey the law is punished. It is therefore necessary that all the people should have the sound knowledge of the law which is possible only with the help of jurisprudence. Therefore, jurisprudence, having so much importance for society, has rightly been called the eye of law.
We can say that jurisprudence has a similar relationship with the law as that of grammar with the language.

Contents of jurisprudence:

Sources:

Authoritative sources and the nature and working of the legal authority behind these sources is the main feature of jurisprudence. It includes custom, legislation, precedent, pros, and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice, etc.

Legal Concepts:

Jurisprudence includes the analysis and study of legal concepts such as rights, title, property, ownership, possession, obligations, acts, negligence, legal personality and related issues.
These concepts are equally studied in the several ordinary branches of law, but jurisprudence tries to build a more comprehensive picture of each concept as a whole.

Legal Theory:

Legal theory is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other. Hence it is necessary that while analyzing legal concepts, an effort should be made to present them in the background of social developments and changing economic and political attitudes.

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Justice

Hemant More — Mon, 25 Feb 2019 10:26:38 +0000

The dictionary meaning of justice is ‘moral or legal fairness”.

Classification of Justice:

Justice can be classified into two types viz. natural or moral justice and positive or legal justice.

Natural Justice:

The word is derived from the Roman word ‘Jus Naturale’, which means principles of natural law, equity, and good conscience.
These principles did not originate from any divine power but are the outcome of the necessity of judicial thinking, as well as the necessity to evolve the norms of fair play. It is also sometimes referred as ‘Divine law’ or ‘Moral Law’.
its rules are not fundamental rights but they safeguard individual from any arbitrary action which may affect the rights of individuals.
In it, the conscience is invoked and not legal principles. Rules of natural justice are not codified, but they are principles ingrained into the conscience of men.
It is the administration of justice is common sense or liberal way. It flows from natural ideas and ends in human values.

Principles of Natural Justice:

Every accused individual must have a reasonable opportunity of being heard in his defence.

Here a doctrine ‘Audi alteram partem‘ ’ comes into play. It means that no one should be condemned unheard. The person concerned whose civil rights are affected must have reasonable notice of the case he has to meet.
The person (Accused) must be given a fair and reasonable opportunity to defend himself. The person has the right to know the accusations levelled against him and the premise on which such accusation is based. A reasonable opportunity and time should be given to the person to adduce all relevant evidence in his defence.

The hearing must be by an impartial tribunal.

Here a doctrine ‘nemo debet esse judex in propria causa’ comes into play. It means that no man shall be a judge in his own cause.
In natural justice, it is mandatory that the disciplinary authority should be impartial and free from bias. It must not be interested in or related to the cause which is being decided by him.
The personal interest can be in the form of some pecuniary benefit or some personal relation or even ill-will or malice or any official bias against any of the parties.
In such a case, the judge should pass an order “Not Before Me” (NBM).

The order should be a speaking order

The authority must act in good faith and not arbitrarily and the order passed by an enquiry officer or administrative agency must be a speaking order. If the order is not supported by reasons, it will amount to the violation of the rules of natural justice.
If the order is passed with reasons, only then will it show that there was a proper appreciation of evidence by the disciplinary authority, otherwise the aggrieved party will not be in a position to demonstrate before the appellate authority, as to the manner in which the order passed by the initial authority is bad or suffers from a particular illegality.
In the case of Anjali v. SBI 1993 (2) Bank CLR 372, the termination of the plaintiff from bank service was based on findings which were founded on pure suspicion and surmises without subscribing, any reason. On appeal, it was held that the order was not a speaking order, with no application of mind to the points raised by the employee. Hence, termination from service was quashed, as the principles of natural justice were violated.

Legal Justice:

Legal justice is a justice governed by the law of the state.
It is codified and principles are followed without any emotions.

Other Classification:

The justice can also be classified into two types. viz. Corrective justice and Distributive justice.

Corrective Justice:

Corrective justice is a fundamental type of justice, concerned with the reversal of wrongs or the undoing of transactions. Thus corrective justice means restoring the rights to those who were earlier deprived of their rights. E.g. Reservations for socially and economically backward classes.

Distributive Justice:

In distributive justice, there is an equitable distribution of rights between various sections of people according to their rights. In the present time, the justice that is concerned with the distribution or allotment of goods, duties, and privileges in concert with the merits of individuals, and the best interests of society is called distributive justice.

The Responsibility of Justice:

Justice should not concern only punishment. It should be concerned with how a person came to be in trouble with the law in the first place.
Factors contributing to the behaviour in contravention to society’s laws in an individual perspective and also in social perspective should be studied.
Studying this behaviour in relation to social factors such as poverty, racism and education can significantly inform our understanding of preventing crime and government law-making.
Trying to understand why poor and marginalized people in our society fill our jails and our hospitals and have higher suicide rates than the rest of the population is also part of the study of justice.

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Types of Laws

Hemant More — Sat, 16 Feb 2019 17:15:16 +0000

Natural or Moral Laws:

Natural laws are the belief that certain laws of morality are inherent by human nature, reason, or religious belief, and that they are ethically binding on humanity.
Actually, it is a philosophy that is based on the idea that “right” and “wrong” are universal concepts, as mankind finds certain things to be useful and good, and other things to be bad, destructive, or evil.
Examples: The law of reasons, the law of eternal, etc.

Scientific Laws:

Scientific laws are statements that describe an observable occurrence (seen by everybody) in nature that appears to always be true
Laws of natural sciences (astronomy, biology, chemistry, and physics, etc) are scientific laws. These laws are based on the uniformities of nature and general principles expressing the regularity and harmony observable in the activities and operations of the universe
They are not the creation of men and cannot be changed by them.
Examples: The law of gravitation, laws of planetary motion, the laws of motion, etc.

Imperative Laws:

Imperative Laws means rules of action imposed upon mere by some authority which enforces obedience to it. The main exponent of this type law was Austin. He proposed the theory of imperative law.
There are two kinds of imperative laws, Divine or Human.
Example: The criminal law, the contract law, etc.

Common Laws:

Laws that are based on court or tribunal decisions, which govern future decisions on similar cases are called common laws.
Common law is a term used to refer to the laws that are developed through decisions of the court, rather than by relying solely on statutes or regulations.
They are also known as “case laws,” or “case precedent”.
Example: Kesavanand Bharati v. State of Kerala case judgment.

Criminal Laws:

Criminal laws are the area of the local, state, and federal laws that define criminal acts and offenses, governs the arrest, detention, charging, and prosecution of accused offenders, and sets specific punishments.
The term criminal laws refer to the actual laws, statutes, and rules that define acts and conduct as crimes, and establishes punishments for each type of crime. They are imperative laws.
Example: Indian Penal Code

Civil Laws:

Civil laws are the body of laws that govern ordinary private matters, separate from laws presiding over criminal, military, or political matters.
Civil laws govern private or civil rights providing redress for wrongs by compensating the person or entity that has been wronged rather than punishing the wrongdoer.
Civil laws define and protect the private rights of citizens, offers legal remedies that may be sought in a dispute, and covers areas of law such as contracts, torts, property, and family law.
Example: Mohammedan law, Contract law, etc.

Procedural Laws:

Procedural law is a body of law that sets forth the methods, rules, and procedures for court cases.
In order to help ensure that the laws are applied fairly, there are certain rules and procedures that must be enforced when a court hears any case, whether civil or criminal. This set of laws, rules, and procedures is known as “procedural law.”
Example: Civil Procedure Code, Criminal Procedure Code, etc.

National Laws:

National Laws are the laws by which the people are governed by the state.
It is further classified into constitutional laws and ordinary laws.
Example: The Constitution of India

International Laws:

International laws are the set of rules generally regarded and accepted in relations between nations. It serves as a framework for the practice of stable and organized international relations.
The member states are free to break the ruling of the international court.

Holland further classified the law as (i) private law and (ii) public law and also as (i) law of persons and (ii) the law of things.

Sources of Law:

Custom:

In ancient times, social relations gave rise to several usages, traditions, and customs. These were used to settle and decide disputes among the people.
Custom has been one of the oldest sources of law. Most of the modern laws are derived from the customs followed from ancient times.
Initially social institutions began working on the basis of several accepted customs. Gradually, the State emerged as the organized political institution of the people having the responsibility to maintain peace, law, and order.

Religion and Morality:

The religious and moral practices and codes of a society provided to the State the necessary material for regulating the actions of the people.
The State converted several moral and religious rules into its laws. Hence Religion and Morality have also been important sources of Law

Legislation:

Due to the development of a legislative system, The legislation has emerged as the chief source of Law. The legislature began transforming the customary rules of behaviour into definite and enacted rules of behaviour of the people. Soon legislation emerged as the chief source of law and the legislature got recognition as the Legal Sovereign

Judicial Decisions or Precedents:

Judicial Decisions are an important source of Law. The judicial decisions given by the apex court or the courts which stand recognized as the Courts of Record, (like the Supreme Court and High Courts of India) are recognized and used as laws proper.
Lower Courts can settle their cases on the basis of such judicial decisions of apex courts.

Delegated Legislation or Professional Opinion:

Due to the paucity of time, lack of expertise and increased demand for law-making, the legislature of State delegates some of its law-making powers to the executive/professional.
The Delegated Legislation always works under the superior law-making power of the Legislature.

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Austin’s Imperative Theory of Law

Hemant More — Sat, 16 Feb 2019 17:12:18 +0000

What is Law?

Rules of conduct approved and enforced by the government of and over a certain territory is called a law. (eg. the ‘laws’ of India).

Blackstone’s Definition:

According to Sir William Blackstone (an English jurist and judge of the eighteenth century) ‘Law, in general consists of the rules recognized and acted upon in the court of justice.” In its commentaries, Blackstone said that law, in its most general and comprehensive sense, “is that rule of action which is prescribed by some superior and which the inferior is bound to obey.”
Thus Blackstone’s definition has two main concepts: a) the concept of a “superior,” and b) the concept of a “command”. Thus the law is something set, or given, by a superior to an inferior, or by a sovereign to a person in a state of subjection.
This concept of Blackstone would exclude all international laws and constitutional laws. Hence this definition was criticized.
In a country like India which is a democratic republic, there is no concept of superior or inferior, all are equal. In a democratic republic sense, the law is a jurisdiction adopted by the sovereign people for their own control, not by some superiors for other inferiors.

Other Definitions:

Holland says that law in the proper sense of the term is a general rule of the action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among the human authorities, is that which is paramount in society.
Hobbes define law as the commands of him or them that have coercive power.
According to Austin ”Law is the command of the sovereign”.
Salmond defined law as the body of principles recognized and ap[plied by the State in the administration of Justice. Law consists of rules recognized and acted upon by the courts of justice.
Demosthenes said that “Every law is a gift of God and decision of sages”.

‘The Law’ and ‘a Law’

‘The law’ means all the laws of the land. Criminal, civil, constitutional, etc. It is a generic description of a large class or body of laws that make up the entire legal framework of a country. Here the term is used in an abstract sense.
‘A law’ means a specific law. It is the subset of the set of all laws. For example ‘Indian Contract Act’, ‘Consumer Protection Act”, etc.

Characteristics of Law (w.r.t. Indian Legal System):

Rule of law, equality before the law and equal protection of the law for all without any discrimination.
Laws are general rules of human behaviour in the state. It applies to all people of the state. All are equally subject to the laws of their State. Aliens living in the territory of the State are also bound by the laws of the state.
Law is a definite command of the sovereign. The sovereignty of the State is the basis of law and its binding character. The state always acts through Law. Laws are made and enforced by the government of the State.
Law creates binding and authoritative values or decisions or rules for all the people of the state.
Violations of laws are always punished. Thus the Law is backed by the coercive power of the State.
The Law is formulated by the representatives of the people who constitute the legislature of the State. The government and its machinery execute and implement the law and the Judiciary interprets the law when any dispute arises. The courts settle all disputes among the people on the basis of law. The courts settle all disputes among the people on the basis of law.
The law provides protection to the rights and freedoms of the people. And provide an environment of growth.

Law and Ethics:

Law	Ethics
The law refers to a systematic body of rules that governs the whole society and the actions of its individual members.	Ethics is a branch of moral philosophy that guides people about basic human conduct.
Law consists of rules recognized and acted on by the court of justice.	It is the function of ethics to evolve those principles which should be followed because they are good in themselves.
Set of rules and regulations which are legally binding	Set of guidelines which don’t have a binding nature.
Government	Individual, Religious, Legal and Professional Norms
Expressed and published in writing.	They are abstract.
Violation of the law is not permissible which may result in a punishment like imprisonment or fine or both.	There is no punishment for a violation of ethics.
Law is created with an intent to maintain social order and peace in society and provide protection to all the citizens.	Ethics are made to help people to decide what is right or wrong and how to act.

Imperative Theory of Law:

Imperative theory of law was proposed by Austin. According to Austin, positive law has three main features: (i) it is a type of command, (ii) It is laid down by a political sovereign, and (iii) It is enforceable to sanction. Thus every law is a species of command and prescribes a course of conduct.
According to Austin the relationship of superior to inferior is due to the power which the superior enjoy over the inferior. i.e. the ability of the superior to punish the inferior for disobedience. A command is a wish/desire to another so that he/she shall do a particular thing or refrain from doing a particular thing. In case of non-compliance with command, he/she has to for evil consequences .the sanction behind the law is the evil which is to be influenced in the case of disobedience.
All positive laws are commands of the sovereign either directly or indirectly. They are set by political superiors. Some laws are not set up political superiors and covers laws of voluntary association and clubs.
Austin proposed that there are commands which are laws and there are commands which are not law. Austin distinguishes law from other commands by their generality. laws are general commands. However, there can be exceptions. There can exist laws such as acts of attainder which lack the character of generality.
According to Austin, the law is law only if it is effective and it must be generally obeyed. General obedience is sufficient. What is sufficient for a legal theorist is that obedience exists.
According to Austin laws are of two kinds –divine law and human law. Divine law was given by God to men and human laws are prepared by men for men.
According to Austin, every law should have a sanction of the physical force of the State.

Merits of Imperative Theory:

Austin gave a clear and simple definition of law.
Austin tried to avoid a lot of confusion by separating law from morality.
His theory has an important and universal truth – Law is created and enforced by the state.

Challenges to Imperative Theory of Law:

Austin’s definition cannot be applied to a Morden democratic country whose machinery is employed for the result of the people. In a democratic country, the sanction behind the law is not the force of the state but the willingness of the people to obey the same.
It is not applicable in International and Constitutional law. International law is not the command of any sovereign, yet it is considered to be law by all conserved. The Constitutional law of the country defines the power of various organs of the state. Nobody can be said to command himself.
The definition cannot be applied for Hindu, Mohammedan and the Canon law because these laws came into existence long before the state began to perform legislative functions.
According to Salmond Austin’s definition of law refers to “a law” and not “the law”. The term “a law” is used in a concrete sense to denote a statute while the term “the law” is used in an abstract sense to denote legal principles. A good definition of law must deal with both aspects of the law.
The main criticism of Salmond is that the theory disregards the moral or ethical elements of the law. The end of law is justice. Any definition of law without reference to justice is inadequate.

Salmond’s Theory of Law:

According to Salmond Austin’s definition of law refers to “a law” and not “the law”. The term “a law” is used in a concrete sense to denote a statute while the term “the law” is used in an abstract sense to denote legal principles. A good definition of law must deal with both aspects of the law.
Salmond quoted that “The central idea of the juridical theory is not lex but Jus, in gestez and recht”.
The main criticism of Salmond is that the theory is one-sided and inadequate and disregards the moral or ethical elements of the law. The main purpose of the law is justice. Any definition of law without reference to justice is inadequate.
According to Salmond, “All legal principles are not commands of the state and those which are at the same thing and in their essential nature, something more, of which the imperative theory takes no account”.

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Writs and Their Types

Hemant More — Sat, 16 Feb 2019 15:16:45 +0000

Writ:

Anything that is issued under authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs.
Any person whose fundamental rights are violated can move the High Court (under article 226 of Indian constitution) or the Supreme Court (under article 32) and the court can issue direction or orders or writs. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen.
In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above. Similarly, High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
In India, both the Supreme Court and the High Court have been empowered with Writ Jurisdiction. Further, Parliament by law can extend power to issue writs to any other courts (including local courts) for local limits of the jurisdiction of such courts.

Types of Writs:

There are five major types of writs viz. habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Each of them has a different meaning and different implications.

Writ of Habeas Corpus:

Habeas corpus writ is called bulwark of individual liberty against arbitrary detention. “Habeas Corpus” is a Latin term which literally means “you may have the body.” Or “produce the body”.
This remedy is available in all cases of unlawful detention and violation of personal liberty. The writ is issued to produce the person physically who has been detained, whether in prison or in private custody, before a court.
The court then examines the reason for the detention and if there is no legal justification of his detention, he can be set free. Thus the onus of proof is on the detainer, and the detainer must show proof of authority to do the same.
A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals.
Such a writ can be issued in the following example cases:
When the person is detained and not produced before the magistrate within 24 hours
When the person is arrested without any violation of the law.
When a person is arrested under a law which is unconstitutional
When detention is done to harm the person or is malafide.

Case Law: Brown v. Vasquez, 952 F 2d 1164

James A Brown, a Texas prisoner (was awarded the death penalty), filed a complaint alleging violations of his constitutional rights stemming from two cell extractions. He named as defendants Sergeant Vasquez and Correctional Officer R. Hughes.
The Court held that he was detained according to the procedure established by law and rejected his argument.

Case Law: Gopalan v.Government of India, AIR 1950 SCR 88

A. K. Gopalan was a communist leader who was detained in the Madras Jail under Preventive Detention Act, 1950 and he challenged his detention by stating that his civil liberty was being hampered as he had the right to equality of law. He argued that there was a violation of his Fundamental Rights which were Article 19, 21 and 22. He argued that the right to the movement was a fundamental right under article 19
Article 21 of the Indian Constitution: “No person shall be deprived of life or personal liberty except according to the procedure established by law”. The Supreme Court held that he was detained according to the procedure established by law and rejected his argument. The supreme court at that point of the time believed that each article was separate in the Indian constitution.

Case Law: Prem Shankar Shukla Delhi Administration, AIR 1980 SC 1535

In this case, the detained prisoner sent a telegram to a judge and was treated as a Habeas Corpus Petition.

Case Law: Sheela Bharse v. State of Maharashtra AIR 1983 SC 378

In this case, the court expanded the scope of this writ by adjudging that it is not necessary that the detainee should be the petitioner. An interested party who has some connection with the case may also do so.

Case Law: Kanu Sanyal v. District Magistrate AIR 1973, SC 2684

In this case, the court held that it is not necessary to produce before the court the detainee.

Writ of Mandamus:

Mandamus is a Latin word, which means “We Command”. Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so.
The function of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising public functions. Mandamus can be issued to any kind of authority in respect of any type of function – administrative, legislative, quasi-judicial, judicial.
Mandamus is called a “wakening call” and it awakes the sleeping authorities to perform their duty. Mandamus thus demands activity and sets the authority in action.
A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body. Such a filing person must have a real or special interest in the subject matter and must have the legal right to do so.
Mandamus cannot be issued against the following:
a private individual or private body.
if the duty in question is discretionary and not mandatory.
against president or governors of the state
against a working chief justice
to enforce some kind of private contract.

Case Law: Bombay Municipality v. Advance Builders, AIR 1972 SC 793

Bombay Municipality had prepared a town planning scheme which had been also approved by the State Government. However, no action was taken for a long time.
The court directed the municipality to implement a planning scheme.

Case Law: State of West Bengal v. Nuruddin(1998) 8 SCC 143

In the case, the Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.

Case Law: Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. R Udani and Ors. AIR 1989 SC 1607

The court held that it is not necessary that the duty is imposed by statute, mandamus may apply even in cases where the duty is imposed by common law or custom. The ambit of mandamus is very wide, and it must be available when an injustice has occurred. It should not be bogged down with too many technicalities.

Writ of Certiorari:

Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority.
These writs are designed to prevent the excess of power by public authorities and as general remedies for the judicial control of both quasi-judicial and administrative decisions affecting rights. A writ of certiorari is corrective in nature.
The scope of the writ of certiorari has been given in the case of Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233 as follows:

When there is an error of jurisdiction.
When the court has not given the proper time for both parties to be heard or has violated principles of natural justice.
This writ is supervisory in nature, and thus the High court cannot review the findings of the lower courts.
If the error is evident.

There are several conditions necessary for the issue of a writ of certiorari.

There should be court, tribunal or an officer having the legal authority to determine the question with a duty to act judicially.
Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.

A writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such an Act or Ordinance.

Writ of Prohibition:

The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it.
The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.
A writ of prohibition is normally issued when inferior court or tribunal

Proceeds to act without jurisdiction or in excess of jurisdiction
Proceeds to act in violation of rules of natural justice or
Proceeds to act under a law which is itself ultra vires or unconstitutional or
Proceeds to act in contravention of fundamental rights.

Difference between Prohibition and Certiorari:
There is a fundamental distinction between writs of prohibition and certiorari. They are issued at different stages of proceedings.

The writ of prohibition is available during the pendency of proceedings i.e. when an inferior court takes up a hearing for a matter over which it has no jurisdiction, the person against whom hearing is taken can move the superior court for writ of prohibition on which order would be issued forbidding the inferior court from continuing the proceedings.
The writ of certiorari can be resorted to only after the order or decision has been announced i.e. if the court hears the matter and gives the decision, the party would need to move to superior court to quash the decision/order on the ground of want of jurisdiction.
Both the writs are issued against legal bodies.

Difference between Mandamus and Prohibition:

While Mandamus directs activity, Prohibition directs inactivity.
While Mandamus can be issued against any public official, public body, corporation, inferior court, tribunal or government; prohibition can be issued only against judicial and quasi-judicial authorities and not against administrative authorities, legislative bodies

Writ of Quo-Warranto:

The word Quo-Warranto literally means “by what warrants?” or “what is your authority”? It is the writ which is issued directing subordinate authorities to show under what authority they are holding the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
The writ cannot be issued to a person working in a private field. This writ is issued to a person in an office, the legality of which is being questioned.
In the case of Anand Bihari v. Ram Sahay AIR 1952 MB 31, the court held that the office in question must necessarily be one which is public.
In G. Venkateshwara Rao v. Government of Andhra Pradesh AIR 1966, SC 828, the court held that a private person may file an application for a writ of Quo Warranto. It is not required that this person is personally affected or interested in the case.
Conditions for issue of Quo-Warranto

The office must be public and it must be created by a statue or by the constitution itself.
The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.

Summary of Writs:

Type of Writ	Meaning of the word	Purpose of issue
Habeas Corpus	You may have the body	To release a person who has been detained unlawfully whether in prison or in private custody.
Mandamus	We Command	To secure the performance of public duties by the lower court, tribunal or public authority.
Certiorari	To be certified	To quash the order already passed by an inferior court, tribunal or quasi-judicial authority.
Prohibition	To stop	To prohibit an inferior court from continuing the proceedings in a particular case where it has no jurisdiction to try.
Quo Warranto	What is your authority?	To restrain a person from holding a public office which he is not entitled

How to File a Writ in the Supreme Court?

For the purpose of filing a writ petition in the Supreme Court under Article 32, a format for the writ petition is provided by the Supreme Court which must be followed. The following documents need to be attached along with the writ petition:

An affidavit by the petitioner.
1+5 copies of the writ petition.
It will also include a prescribed cover page, an index, annexures as may be required as well as a memo of appearance for which fees are to be paid.

For the format of writ petition Click here

The same procedure can be used to file a case in the High Court, the format for writ petition will be available on the concerned High Court’s website. For example, The format is available on the official website of the Mumbai High Court.

The post Writs and Their Types appeared first on The Fact Factor.

Bail

Hemant More — Sat, 16 Feb 2019 13:40:53 +0000

The meaning of “bail” is to set an accused person free after depositing some money with the court before he is tried, often on condition that a sum of money would be forfeited if he does not attend the trial. a warrant for the defendant’s arrest is issued.
The judge sets the amount, and the money is deposited with the clerk of the court. It is returned after the case is finished. Thus bail is the security given to the court to assure it that the accused person will return to the court on the day of trial. Bail may be posted as “cash,” or through a bond.
A bond is a legal contract that requires someone to pay money if a defendant fails to return to court. It is guaranteed by the assets of the person who posted it, such as real estate, savings, or valuable personal property.
A personal bond without sureties means that the person is released on his personal undertaking that he would regularly attend the court and in case of default would forfeit to the government a sum of money.
If a personal bond requires one or more sureties, then it would mean that a third person (surety) is made responsible for the obligations of the accused and he would be made to pay the bail amount on the breach of the bail conditions by the accused. Such a bond is called a surety bond. In such a situation the court in its discretion asks the person acting as surety to keep collaterals worth the amount of the bail bond as a security with the court.

Types of Bail Bonds:

Own Recognizance:

Own recognizance release is a no-cost bail where a defendant signs a form stating they promise to appear in court as required, instead of making a payment. This type of bail is usually available for minor offences.
Factors such as a suspect’s past record, ties to the community, support of family members, social status, and employment are taken into account by a judge when offering own recognizance release.
Even though no money is paid with this type of bail, all other aspects of a defendant’s release remain the same.

Cash Bond:

Bail can be paid in cash. Payment by credit cards or cheque drawn from personal or business accounts are not accepted.
The judge sets the amount, and the money is deposited with the clerk of the court. It is returned after the case is finished.

Property Bond:

A property bond is a bond that posts the value of tangible property, such as real estate, in order to obtain a pre-trial release from jail. Most jurisdictions require a warranty deed, a current tax statement showing the property’s fair market value and that all taxes are current, a current mortgage statement showing that all payments are current, and if there is more than one owner, an agreement signed by each owner indicating that the property may be used to finance a bond.
If the defendant fails to appear in court, the property can be put into the auction and after the auction proceeding, the court will collect the bail amount that is owed.
If the sale of the property does not cover the amount of the bail, the court can seek to recover the difference from the accused.

Provisions for Bail in Criminal Procedure Code:

When a matter of bail applications comes, it is only the Magistrate or Sessions Court or High Court in which power is imposed to grant it. Bail laws in India are described under Section 437, 438, 439 of Code of Criminal Procedure, 1973.
Section 437 of Code of Criminal Procedure, 1973 contemplates that any person arrested or detained in a non-bail able offence, the Court other than Sessions Court may grant him bail.
Section 438 of Code of Criminal Procedure, 1973 contemplates that the Session Court or the High Court may grant anticipatory bail to a person apprehending arrest.
Section 439 of the Code of Criminal Procedure, 1973 contemplates that the Sessions Court or the High Court can grant bail to a person who has been arrested.

Types of Offences:

Before taking the decision about to grant bail or not, the court has to categorize the offence in either bailable or non-bailable category. For categorization Schedule of the Criminal Procedure Code is used as a reference.

Bailable Offence:

Bailable offences are of minor nature. In the case of bailable offence, the Magistrate has no discretion and he has to grant the bail.
In such cases, bail is a right and the arrested person must be released after depositing the bail with the court. As soon as all the requirements of the set bail have been met. Police cannot refuse to release a person from custody if he/she fulfils all the necessities.
Once bail is granted to a person, it does not mean that the person is free. The individual is still a suspect and must appear at court for the trial.

Non-Bailable Offence:

Non-bailable offences are of a severe nature. In the case of non-bailable offence, the court may release the accused on bail only subject to the conditions laid down in S. 437 of the Criminal Procedure Code.
The factors that influence the decision of not granting the bail are the seriousness of the offence, the chances that the accused will interfere with the investigation by tampering with evidence or threatening witnesses or if the accused is likely to go into hiding or leave the country to escape, the court will decide whether he/she can be allowed to be let out on bail or not. If someone is refused bail, he/she can appeal to a higher court.
If the police do not complete their investigation within 60 days for a crime that is not punishable with death or life imprisonment, then the accused gets bail. For offences that are punishable with death or life imprisonment, the investigation must be concluded within 90 days, or the accused will have the right to bail.

Procedure for Obtaining Bail:

When a person is arrested they are first taken to the police station which exercises jurisdiction over the area where the accused resides to book the case.
Information is recorded by the Police Officer regarding the name, residence address, birth-place, charges filed against the accused etc. He will check the criminal background of the accused, fingerprints and files a case against the accused.
The accused has to submit Form 45 given in the second schedule to the court in which his case is being heard. In case, the accused has committed a non-bailable offence, he can submit a similar form before the Court in which his case is being heard, but it has been left to the discretion of the Court to decide the same.

Discretion of Court in Granting or Refusing Bail:

In the case of bailable offence, the Magistrate has no discretion and he has to grant the bail.
The amount the accused may have to deposit with the court will be at the discretion and decision of the judge. For certain smaller crime cases, a standard amount is set by convention and practice which needs to be deposited for awarding the bail.
The granting of bail is usually considered to be an inherent right. However, there are certain circumstances where bail may be refused – these are related to Non-Bailable Offences.
In non-bailable offences accused may be granted bail if the Court deems it fit. The relevant circumstances should be presented to show to the Court that bail would not harm the further process of trial and justice and the accused would not interfere with the investigation by tampering with evidence or threatening witnesses or would not go into hiding or leave the country.

Anticipatory Bail:

Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made against him/her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he/she is arrested.
Under Section 438 of the Criminal Procedure Code, there is a provision for a person to seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.
If the court, based on a number of conditions and the nature of the case, sees merit in the petition the anticipatory bail is granted. Hence if and when the person is arrested, he/she will be immediately released on the basis of the anticipatory bail.
The court issuing anticipatory bail issue the same under some conditions, they are as follows.

The person will make him/herself available for interrogation by the police as and when required by them.
The person shall not leave India without prior permission from the court
The individual shall not directly or indirectly make any threat, promise or offer any bribe to any person who is connected to the case or knows facts about the case, so as to keep them quiet or to get them to change their report of facts to the court or the police
The person shall not interfere with the investigation proceedings.
Such other conditions as may be imposed by the court in the facts and circumstances of the case.

After such bail is granted, if sufficient facts are later shown, the Court may cancel the anticipatory bail.

The post Bail appeared first on The Fact Factor.

Assault

Hemant More — Sat, 16 Feb 2019 13:28:33 +0000

An assault is defined as intentional conduct that is meant to place another person in reasonable apprehension or fear of harmful contact. The contact must appear to be imminent, meaning that the offender must appear to have the present ability to cause the contact, even if he or she is not actually capable of inflicting injury.
Section 351 of the Indian Penal Code defines assault as follows: “Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault”.
An assault is committed without contact or without actual use of force. It is done by the creation of fear of contact using words with some gestures like throwing a fist in the air or rolling the cuffs of the shirt. An assault gives rise to civil or criminal liability.

Ingredients of Assault:

1. There are action and gestures by the person like throwing a fist in the air or rolling the cuffs of the shirt, etc.

A says to B “I’ll beat you” without any gesture is not an assault.
A takes up a stick, saying to B. “I will beat you”. Here, the words are supported by gesture may amount to an assault.

2. The intention is to create apprehension or fear in mind of another person towards whom the assault is directed.

In Stephens v Myers (1830, 4 C & P. 349) case, the defendant made a violent gesture during a meeting at the plaintiff by waiving a clenched fist and advanced towards the plaintiff. He was prevented from reaching the plaintiff by the intervention of remaining members in the meeting. The intention was to commit the battery and hence the gestures were directed to create fear in the mind of the plaintiff. Hence The defendant was held liable for assault.

3. The action should indicate an immediate application of force.

A throws his fist in the air towards B, who sees the punch coming towards him, and ducks. Thus B is not getting hit at all. Here there is the immediate application of force and in fear, B ducked it. Hence it is an assault by A on B.
In Tubarville v. Savage case (1669 1 Mod. 3) case A placed his hand on his sword and told another, “If it were not assize-time, I would not take such language.” The justices of assize were in town. Assize-time is a period when the judges were in the town for court sessions. So the meaning of his utterance was that next time when the judges are not in town he will not listen to such language but will take action. In this case, there is a gesture but no immediate threat. Hence it is not an assault.

4. There should be the present ability of the person to carry out the threat.

In R. v. James (1844 1 Collector &K 530) case A holds a gun to B’s head. A knows that the gun is unloaded but B is unaware of it. Here B assumes that there is the present ability of A to carry out the threat. Thus there is immediate apprehension or fear in B’s Mind. Hence it is an assault by A on B.
A holds a loaded toy gun to B’s head. B thinks the gun to be real. Here B assumes that there is the present ability of A to carry out the threat. Thus there is immediate apprehension or fear in B’s Mind. Hence it is an assault by A on B.
If A by gestures say to B “I’ll shoot you”. There is no gun in hands of A. Thus There is no ability of A to carry out the threat. Thus there is no immediate apprehension or fear in B’s Mind. Hence it is not an assault.

5. The action should create reasonable apprehension or fear in the mind of another person towards whom the assault is directed.

In State v. Barry (48 Mont. 598) case, A levelled a rifle at B. B didn’t notice him. B only came to know that the rifled was levelled at him when A was practically disarmed. There is no apprehension or fear in minds of B at the instant when the rifle was levelled at him (because he was unaware of it). Hence it is not an assault.

Other Examples of Assault and Not an Assault:

A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause B to believe that he is about to cause the dog to release and attack B. Thus A has committed an assault on B.
A holds a loaded toy gun to B’s head. B also knows it is a toy gun. Naturally, there is no apprehension in mind of immediate application of force. Hence it is not an assault by A on B.
Sitting in a hotel, A tells B that he intends to run him over in his car at some point in the future. There is no imminent threat. Hence it is not an assault.
A swings hammer in the air to put a nail in the wall. He intentionally swings the hammer in the air such that it came very near to head of B. The intention of the act of A was to create apprehension or fear. B noticed and ducked it. Hence there was apprehension or fear in mind of B. Hence it is an assault.
A swings hammer in the air to put a nail in the wall. He was unaware of any other person nearby. When he swings the hammer in the air it came very near to head of B. The intention of the act of A was not to create apprehension or fear. Hence it is not an assault.
A swings hammer in the air to put a nail in the wall. He intentionally swings the hammer in the air such that it came very near to head of B. The intention of the act of A was to create apprehension or fear. But B was unaware of this act. Hence there was no apprehension or fear in mind of B. Hence it is not an assault.

Other Case Laws:

IN Read v. Coper (1853, 13 CB 850) case, the plaintiff came to the premises which he has rented out to the defendant and refused to leave when ordered by the defendant to leave. defendant and some of his workmen surrounded plaintiff, rolled up their sleeves, and threatened to break the plaintiff’s neck if he did not leave. Fearing that the men would injure him, plaintiff left and subsequently filed an action for assault against the defendant. The court held that the plaintiff can sue the defendant for an assault.

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