\I

STUDIES IN
JURISPRUDENCE
AND
LEGAL THEORY

By
Dr. N. V. PARANJAPE
M.A., LL.M., Ph.D. (Law) & Ph. D. (Pol. Sc.) Visharad
Formerly Dean Faculty of Law, Barkatullah University, Bhopal & Professor & Head,
Department of Law, Post-Graduate Government Law College, Bhopal.
Ex-Professor, Head & Dean, Faculty of Law,
Rani Durgavati University, Jabalpur.

Author of: Law Relating to Arbitration and Conciliation in India,

Code of Criminal Procedure, Company Law, Law of Torts & Consumer
Protection Law, Indian Legal & Constitutional History,
Law of Public Interest Litigation & Legal & Para-legal Services,
Law Relating to Probation of Offenders in India,
The Role of Directive Principles under the Indian Constitution,
Crime and Punishment, Right to Information Law etc.

Bindoo Book Stall

EIGHTH EDITlON:;.£ucati01zaC<Book,sa£fers)
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CENTRAL LAW AGENCY

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Published by : \\ .
Central Law Agency . . .
. 30-D I 1, Motilal Nehru Road PREFACE TO THE E~GHTH EDmON
Allahabad
The present book has entered the twentieth year of its publication since
its first edition was brought out in 1994. The author has great pleasure and ·
satisfaction in placing this revised and eniarged edition of the book in the
hands of readers who are genuinely interested ·in the deeper knowledge of legal
theory and jurisprudential aspect of legal study.
First Edition 1994
The author has endeavoured to bring out this ·edition in a thoroughly
Second Edition 1997
revised form with greater thrust on Indian perspective of legal theory and
Third Edition 2001
latest developments in Indian jurisprudential thought. At places, the whole
Fourth Edition 2004
text has been recast, re-written and expanded updating the contents. An
Fifth Edition 2008
attempt has been made to evaluate the contemporary changes in other parts of
Sixth Edition 2011
the world; notably, U.K., US.A., and European countries without, however,
Seventh Edition . 2013
losing sight of corresponding developments in the Indian legal setting.
Eighth Edition 2016
The authorities, both Indian and foreign, that have been relied upon and
used as a source material, have been referred to and acknowledged in foot-notes.
A Select Bibliography, Table of Cases and Subject-Index incorporated in the
. book shall be found useful by the more inquisitive readers.
© All rights reserved with the publishers The author expresses his grateful thanks to th/ e publishers Messrs
Central Law Agency, Allahabad for their keen interest in taking out the book
in the present form in record time.
It is sincerely hoped that the book would be found very useful not only by
ISBN : 978-93-84852-47-4 the teachers, researchers and students of law but also by practising lawyers,
Judges and law administrators. r·:.." _

Helpful and constructive suggestions from the readers are always

welcome.

Price : Rs. 500.00

(Rs. Five hundred only)
30th June, 2016 Dr. N.V. PARANJAPE
E 7 /740, Arera Colony, Bhopal

This book is being sold subject to the conditions that the author, printers and
publishers are neither liable nor responsible in any manner whatsoever to any one,
whether purchaser of this book or not, for any error or omission in this publication. The
publishers shall be obliged if any such error or omission is brought to their knowledge for
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I

\
\

PREFACE TO THE FIRST EDITION .

. · This book has been written to serve· the needs of the students of law_ of Indian
Universities and the candidates preparing for different competitive examinations. An
c endeavour has been made to present the subjxt-matter in a lucid, precise and orderly
manner so as to be readily palatable· to those who are concerned with the study of
jurisprudence and legal theory, its teaching and practice.
The present book, for the sake of convenient study, has _been split into five parts.
Part.I relates to the province of Jurisprudence and Legal Theory while Part II deals with the
State, Sovereignty, Law and Administration of Justice. Part III embodies sources of law
and Part IV is devoted to juridical concepts and jural analysis. The recent trends in Indian
Jurisprudence have been analysed in· Part V of the book. An attempt has been made to
examine the various jurisprudential developments in the Indian perspective. Different
juristic concepts have been explained with the help of illustrations and relevant judicial
pronouncements wherever necessary.
The author has drawn extensively from the works of Sir Salmond, Austin. Roscoe
· Pound, Hart, Maine, Holland, Holmes, Dias. Lord Llyod, Subbarao and others.- The
· authorities, both Indian and foreign. that have been relied upon and used as a source
material have been duly referred to and acknowledged .in the foot-notes. A select
Bibliography and Table of Cases has also been appended to the book for the benefit of
more inquisitive readers.
Th~ author expresses his gratitude and thanks to Messrs Central Law Agency,
Allahabad for their keen interest in publishing the book in the elegant form in shortest
possible time.
It is sincerely hoped that the book would be found very useful not only by the
students, researchers and the teachers of law. but also by the lawyers, Judges and law-
administrators. ·

January 1994 Dr. N.V.· PARANJAPE

\I

SELECT-BIBLIOGRAPHY
Allen C. K. Law In the Making (7th Ed.1964) Oxford Clarendon
Press ·
Allen C. K. Aspects of Jurisprudence (Reprint) 2009, Universal
Austin John The Province of Jurisprudence Determined-London
(1954)
Baxi Upendra, Dr. The Crisis of Indian Legal System (Vikas 1982)
Bentham Jenny Theories of Legislation (5th Ed. 1987)
Bhagwati, P.N. Justice Judicial Activism & Public Interest Litigation. (1980
Jagruk Bharat, Dharwad)
Bodenheimer Edger Jwisprudence (1962) Harward University Press
Brown Jethro The Austinian Theory of Law (Reprint 1926)
Buckland W.W. Some Reflections on Jurisprudence ( 1945)
Cairnes H. The Theory of Legal Science (1941) University of North
Carolina
Cardozo Benjamin Nathan Growth of Law (1924)
Clark E.C. Practical Jurisprudence, Cambridge University Press
Cohen & Cohen Readings In Jurisprudence & Legal Philosophy (2nd
Reprint 1953) Printice Hall, New York
Dhyani S.N. Dr. Fundamentals of Juri~rudence-The Indian Approach
(3rd Ed. 2004, Reprint 2011)
Dias R.W.M. Jurisprudence (5th Ed., 1985) Butterworths, London,
Indian Reprint (1994) Adithya Book Co., Delhi
Dias & Hughes Jwisprudence (3rd Ed. 1970)
Duguit L. Law In the Modern State (translation By Herold
Laski) 1921 ·
Ehrlich E. Fundamental Principles of Sociology of Law (Harward
1Q36)
Fuller L. The Law of Morality (1964)
Finnis J.M. Natural Law & Natural Rights (London University 1980)
Fitzgerald Salmond on Jurisprudence (1999) Tripathi & Sons (P.),
Bombay
Friedmann W. Legal Theory (5th Ed. 1967) Stevens & Sons Ltd.,
Reprint 2008
GoodhartA.L. Essays On Jurisprudence In Common Law (1931)
Gray J.C. The Nature & Sources of the Law (2nd Ed. 1921)
Gutteridge Comparative Law
Hall J. Foundations of Jurisprudence (1973) Bobbs Merrill Co.
Hart H.LA. The Concept of Law ( Oxford, 1986)
Holl.and T .E. Elements of Jurispru4ence (13th Ed. Indian Print 2010)
Holmes O.W. The Common Law ( 1948 Reprint) Boston Little Brown
Co.
Jaya Kumar N. K. Lectures in Jurisprudenc~ (Third Ed. 2015) Lexis NP-xis ABBREVIATIONS
Kane.P.V. Hindu Jurisprudence AC Appellate Court .
Keeton C.G. The Elementary Principles of Jurisprudence (i949) - AIR
Pitsman & Sons All India Reporter
All ER All England Reporter
Krishna Iyer V. R. Justice Judicial Justice-.-A New Focus Towards Social Justice
( 1985) N. M. Tripathi ChD Chancery Division
Laxmi Nath A. Dr. Precedent in the Indian Legal System (1990) .Eastern Comp Cas Company Cases
Book Co. Cri LJ Crimim,l Law Journal
Llyod Dennis . Introduction To Jurisprudence (London 1985) Cu. Cr. R. Current Criminal Reporter
Llyod Lord of Hamstead Introduction To Jurisprudence (5th &t 1985) Stevens
ExD Exchequer Division
Maine Henry Summer. Sir Ancient Law/(lOth Ed. 1906) Routledge & Sons
F.B. Full Bench
Mayne · Hindu Law & Usages (1953)
Har LR Harward Law Review
Jurisprudence & Legal Theory (2nd Ed.) 2004
Mukherjee P.B.
HCR High Court Reports
The New Jurisprudence (Eastern Law, Cal. 1970)
Posner Richard A. The Problems of Jurisprudence (1st Indian Reprint 2010. JILJ Journal of Indian Law Institute
Universal Law Publishing Co.) Ibid In the same place
Paton G.W. A Textbook of Jurisprudence (4th Ed. 1972) Oxford
University
f
. ~.' / lj
ILR Indian Law Reports
KB King's Bench
Pillai P.S.A. Jurisprudence & Legal Theory (3rd Ed .• Reprint 2005)
MLJ Madras Law Journal
Pollock Fredrick, Sir Jurisprudence & Legal Essays (Translated by A.L.
NOC Notes on Cases
Goodhart, 1961)
Pound Roscoe Jurisprudence (1959) West Publishing Co. PC Privy Council
Salmond John. Sir Jurisprudence (Edited by P.J. Fitzgerald) 12th Ed.,_ QB Queen's Bench
(Indian Economy Reprint 2003) QBD Queen's Bench Division
Sethna M.J. Synthetic Jurisprudence . QLR Quarterly Law Review
Stone Julius Province and Function of Law SCALE Supreme Court Almanac
Subbarao V.G.C. Jurisprudence & Legal Theory (9th Ed. Reprint, 1991) SC Supreme Court
Vinogradoff Paul, Sir Outlines of Historical Jurisprudence (1922) sec Supreme Court Cases
SCR Supreme Court Reports
sew Supreme Court Weekly
Supra As stated earlier
us United States
WLR Weekly Law Reports
WP Writ Petition
\I

CONTENTS
Preface to Eighth Edition ................................................................ ;....... i ii
Preface to First Edition........................................... .................................. v
Select-Bibliography ........ ·.........·.................. .-......................................... vii
Abbreviations ..... ·.................. ;................................................................. ix
Table of Cases ......................................................................................... xxxiii

PARTI
PROVINCE OF }URISPRUDENCE AND LEGAL THEORY

J--·
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE
Jurisprudence--Its meaning ....................................... ;.... :........................ . 1
Definition of jurisprudence ...................................................................... . 3
Ulpian's Definition ....................................................................... .. 3
G'ray's Definition., ..u ...................................................................... . 3
Salmond's Definition ..................................................................... . 3
Hobbes and Blackstone's Definition .................. ~ ............................. . 4
Austin's Definition .......................................................................... . 4
Holland's .D efinition ..................................................................... .. 5
Dr. Allen's Definition .................................................................... . 6
Keeton's Definition ........... :............................................................ . 6
H.L.A. Hart's Definition ................................................................ . 6
Roscoe Pou.nd's Defmition ................................................................ . 7
G.W. Paton's Definition.................................................................. 7
Julious Stone's Definition................................................................. 7
Some Other Jurist's View................................................................. 8
Dr. M. J. Sethna's definition............................................................ 8
Approach to the study of Jurisprudence.................. ........ .......................... 9
Jurisprudence Whether a Science?............................................................ 9
Scope of Jurisprudence ...... ;....................................................................... 10
Contents of Jurisprudence . . . . . . . . . . . .. . . . . . . . . . . . .. . . .. . . . . . . . . . . . .. . . . . . .. . .. . . . . . . . . . . .. . . . . . . .. 11
So11rces..... ........... ............ ....................................... ..... ....... ........ ..... 11
Legal Concepts................................................................................. 11
Legal Theory . . . . . . . . . . . . . .. .. . . . . . .. . . ... . . . . . . .. . .. . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Interpretative Jurisprudence............................................................ 12
Jurisprudence & Legal Theory Distinguished............................................ 13
Jurisprudence is a lawyer's extra version.................................................. 13
Utility of Jurisprudence........................................................................... 15
Inter-relationship of Jurisprudence with other Social Sciences.................. 17
Jurisprudence and Ethics............................... ............................................ 17
 CONTENTS· xiii
xii JURISPRUDENCE· AND LEGAL TI-IEORY .
. \
. , .
.

3
Jurisprudence and·Psychology .................•.........\ ......................... ~ ••. ;.-~-.~ ...... . 18
Jurisprudence and History .................................. t······················· .............. . 18 HISTORICAL SCHOOL Of JURISPRUDENCE
19 Back-drop ....-.. ..................... ~ .................. : ... ,.;.·... _.••·················_ ................ . 53
Jurisprudence and Sociology······················._.·/:~.•-::'.•.····~-~·············.······················
Jurisprudence and Economics ............... ;-~-;; .....•.:..... ~·..................................... . 19 Distinction between Historical Jurisprudence and Legal History ............. . 53
Jurisprudence and Politi~al Science ................ ;.............................:·····.······ 20 Prelude to Historical .approach.;_.; ............ ·.....•....................•.................... 54
Comparative Jurisprudence ..........._..... _.................... :............................. , ..... . 20 Montesquieu ........................................................................................... . 54
New Horizons of Jurisprudence .. .-: ............. ·.._.............................................. . 21 Edmund Burke .................................................................................. 54
F.K. Von· Savigny ....................................... ~ ................................... .-........ . 55
2 Savigny's Life & Works ....................._. ................................................... . 55
19th Century Germany & Thibaut's German Code .................................... . 55
SCHOOLS OF JURISPRUDENCE
Volksgeist as a Source of Law .............................·.................................... . 56
(ANALYTICAL SCHOOL)
Criticism against Savigny' s Theory of. Law ............................................. . 58
Analytical School. .........................·... ;f............... ;.. _•··················~·....... ~......... . 24
Savigny's Contribution toJurisprudentialThought .................................. . 60
Jeremy Bentham ............... ;................................·.~ ................ ~.·~ .............. .. is George Puchta ........................................................................................ . 60
Bentham's Expositorial and <:;ensorial Jurisprudence.; .. ;....... ~ ........ ;.. _ 25 Gustav Hugo ........................................................................................... . 61
Jeremy Bentham's Views On 'Law' and Legal Positivism.... ~;.:· ......... . 26 Historical Comparative Method .......... , ................................................. . 61
Bentham rejected the theory of N~turafLaw ......... ~ ..·........ ~:··; ..... ;....- 26 . Sir ·Henry Maine .................................................................................. ;.. 62
Bentham's Utilitarianism ...... ;-................................................ ;.•......... 27 Henry Maine's Life and Work ............... ;................................................. . 62
Bentham views on Justice ...........·......................................_................ . 29· ~l Maine;s Views on Development ofLaw ................................................... . 62
29 ,.: ;,'.~ Movement of Progressive Societies from Status to Contract ...................... . 63
Be~tham was a progenitor of mod·em analytical jurispruden:ce •.........
Criticism against Bentham ............................................................. . 29 Reversal oftrend from contract to status ................................................. . 64
30 Maine's contribution to Historical Jurisprudence ...................................... . 66
John Austin ....... .- ............................................................................ .
31 Four Stc:1.ges of Development of Law ......................................................... . 66
Austin's Analytical Positivism ....................................................... . Devine Law ................................ , .................................................. . 66
Austin's Imperative Theory of Law ............................................ ~ .... . 32
Cus_tomary Law .............................................................................. . 66
Criticism of Austin's Imper?-tive Theory of Law .............................. . 33 Priestly Class as a sole repository pf customary law ........................ . 66
Erskine Holland .............................................................................. . 35 Codification .......... _................. .- ....................................................... . 67
Sir John Salmond ............................................................................ . 36 Law's Development through Lega1 Fiction, Equity & Legislation ............. . 67
Dr. C. K. Allen ............................................................................... . 36 Legal fictions ............ u••,••.•···········.···· .............................................. . 67
36 Equity .............................................. .-............................................. . 67
H.L.A. Hart's Contribution to Analytical Positivism ...................... . Legis.lation ................................... ·...................... -. .......................... . 68
Hart's Conception of Law ............................................................... . 37
Vinogradoff ........................................................................................... . 69
Rule of Recognition ......................................................................... . 37 69
Sir Fredrick Pollock ........................................ ;...................................... .
Hart's Views on Law and Morality ................................................. . 38 Main purpose of Historical Study ........................................................... . 69
Distinction between Positive law & Morality ................................ .. 40 Historical and Analytical School Distinguished ................................... .. 70
Hans Kelson ................................................................................... . 41 Biological Approach to evolution of law and legal theory ...................... .. 70
Kelson's Theory of Pure Science of Law ............................................ . 41 Racial theory of law ............................... _-.............................................. . 70
Law As Normative Science ............................................................. . 42 Indian .Perspective ................................................................................. . 71
The 'Grundnorm' .............................................................................. . 42 Post- Independence Scenario ................................................................... . 75
Pyramid of Norms ............................................... •.. ••·•••·••••••••·••••• ... • 43
Salient Features of Kelson's Theory of Pure Science of Law .............. . 44 4
Implications of Kelson's Theory of Pure Science of Law .................... . 45 PHILOSOPHICAL OR ETHICAL SCHOOL
Criticism of Kelson's Theory ........................................................... . 45 Philosophical or Ethical ...,ch(?ol.. ........................................................... . 78
47 Hugo Grotius ........... : ...................................................................... . 79
Analytical Positivism-Indian Pel"spective ........................................... ..
xiv JURISPRUDEN_CE AND LEGAL THEORY CONTENTS xv

Immanuel Kant ................................ ~.•······~······································ · 80 Criticism against Duguit's Theory ............. ·...................... ;.............. . 103
. \
Fichte .................... ; .................................. ·~ ········ ............... ;............ . 81 fr.ancois . G·eny ....._..... ~ ..... .-... ·.......;....:•........ ;~ ........................ ~ ................ . 104
Hegel ......................_.. :·· ................................................................... . 81 •Hermann ·.Kantorowicz~ ........... :; ....... ~ .............................................. . 105
Scbelling ...................................................... ~ ../········ .. ··· .................. .. 83 . R()SCOO P,ound ~u ...... u........... ···~·.,; .. ~ ... ;.·........................' .............. ;........ . 105
Kohler ..... ......... ......... ~:··································· . .··········'.···•·••······· ........ . 83 . 'Pound's ~gcil Philosophy ................... ~ ...... ;................ u................. . 105
Rudolf Stammlet.: ......... ~t!'.~·.•._-,.~·•• •.·•~• • • •. • • • • • • • • • • •.• • • • • • • • • •.• • • • • • ·; • • • • • • •• • • • • • • • • • • • • • • 84 · :Etrtphasis on Fimctional Aspect of Law .. :............................... .. 106
Francois Geny.:.;'.~~/~~;~;,.J~:~-~~.;; ..... ;.................................................... .. 85 ·Pound's Theory.of Socjal Engineering ..................................... . 106
Del Vecchio ............, ..:-; ...•.-..~.;:·.,':' ...-................................ ........................ . 85 -· ·:. Pr_ivate .Interests ............ ·.... , ...·...·......................... ,. ............. . 107
Gueist ....................,..~.•.~ •.... ·.......................... •... •. •.. •••••. •.. ••••. •••. ••••••••••• 86 ·Public Interests ................................................................ . 107
Gustav Radbruch ............ :................................................................. . 86 . . •SQCial :Interests :........ ~ ...................................................... . 107
Implications of the Ethical Legal Phi~osophy ................... :............ . 87 ·. )ural Posbllates of Rosc<>e Pound.;............................................. ;.... . 108
Theories of Justice .......................................·.......... ·......................... . 87 . Jural Postulat.e .·1....... .-.......-. ................ -. .................................... . 108
John Rawl's institutional theory of Justice ............. ·.......................... . 88 Jµr~f P~stula,t e JI ......... ~ ....•... •:• ............................................... . 108
Indian Legal philosophical view ...,~.................. ;............................ . 89 JU:r11l Postulate- UL ........;~ ..... •: .......... ~····· .... .-...............~ ............. . 108
... ' : .:)ufa·l Postulate IV..... ~.; ............... O; ....... ;................................. .
0
108
5 JuraFPostulate.: V .: ....·......_.: ...·.•u•··--,··· ......... ............................... . 108
SOCIOLOGICAL SCHOOL . . ·P<;>Und's ContribuJion to Jurispru~ence ........................................... . 109
Four Developmental Stages of Sociological Jurisprudence .........•............... 92 ·. •> Criticism againsfPound's. theory ................ ~ ................................ . 109
Empirical Scientific Approach to Law .......... ~ ................................. . 92 .Other· American· Sociological Jurists ..................~ ............·...................... . 110
The Impact of Darwinian Evolutionary Theory ............................... . 93 ; Justice .·Hol-mes_......... .......... ;4~ ........... ..... ~ ....................... : ••••••••••••••••••
,{ 110
Impact of Psychological Theories ................................................... . 93 -.1 ·.: > · Cardozo . : Benjamin Nathan .......................... ~ .............................. . 111
Unification Stage ........................................................................... . 94 Sociological Jurisprudence and Sociology of law ........................... . 111
Sociological Jurisprudence and Sociology of Law Distinguished ............... . 94 Social Justice-Indian Perspective ...... uo.; ............................................ . 112
Back-drop of Sociological Jurisprudence .................................................. . 95 Constitutional Mandate for Social Justice ............... :............................ .. 114
Main Exponents of Sociological Jurisprudence ........................ •·. •••. ••·. •••••••• 95
Montesquieu ............................................................ •• ..... ••••••••••••••••• 96 6
Auguste Compte ..... ;............................ ·........................................... . 96 REALIST THEORY OF LAW
Herbert Spencer ........................................... •........... •. •... ••••. ••.. ••·· ••••• 96 ·. Realism-What Exactly It Means? ...................................................... . 121
Rudolph Von Ihering .............................................................. :....... . 97 .··Basic Features of Realist School ......... ~ ................................................. . 122
Law is result of constant struggle ........................................... ;... . 97
Karl Llewellyn ........... ............ ......... , .......... .................................. .. 123
Law is to serve a · social purpose ................................................. . 98
Jerome N. Frank ...... '.··••u ....·............................................................ ~ 124
Law alone is not a means to control the society~ .......................... . 98
98 John C.hiprn.an, Gray.:.~· .. ·~~ ...... ,; ....·............................................... . 124
Ihering's Contribution ......................................... 0 ·••··· .. •••••• • ••·••••• ... .
124
Criticism Against Ihering's Theory ................................................ ..
Eugen Ehrlich ...................................................... ........................... .
99
99 ~,:!~~rt~;·::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 125
100 .Thunnan. Wesl~y Arrt<>ld .. ~ ........................................... ;.............. . 126
Ehrlich's Contribution .......... ~·····················••.•· ··:······· .. ················· ... .
.1 · Criticism Against Ehrlich's Theory ............................................... . 100 Scandinavian .Legal ·Realism .......... ~ .................................................... . 126
Leon Dugui.t .................................................................................... . 101 . Axel · Hagerstrom; ............. ......... ;..................... :............................. .. 127
Doctrine of Social ·'solidarity .................................................... . 101 .Karl 01-ivecron.a .... ....................................................................... .. 127
Law to secure and serve Social Solidarity ............. ~ ......................... . 102 Alf..Ros~...• •:--. ~ ................................. ;....... :...................................... .. 128
Theory of Justice .................................................. ·........................... . 102 V.·Lundstedt ....... ....................................... : ................................. . 128
Duguit's views about the State and its ftmctions ........................ . 102 Contril>utiori of Realist School to Jurispruq.ence ..................................... . 129
Duguit's Legal Philosophy ............................................................. . 102 Criticislll Against Realism .......... ~ .......................... ;......... ;.................. . 130
Duguit's Contribution ..................................................................... . 103 Rec1lis:rn 'in·.the Indian Context ............................................................. . 130
xvi JURISPRUDENCE AND LEGAL 11-IEORY CONTENTS · . xvii
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7 \ Natural Law and Feminist Jurisprudence ............................. :................. 169
Critical Appraisal of Natural Law Theory ........ ;.. ;............................... 170
INDIAN LEGAL THEORY
Place of Natural Law in British, American & Indian Legal Systems...... 171
The Concept of Dharma ......................... ·..............\ ................................ . 135 Natural Law. Principles under the Indian Constitution........................... 173
Jaimini's View ..................................................... ~.·.............................. . 135
Source of Dharma ........... :......................... ,...............................·.......... :... 137 ·PART.II .
The Concept of Law ................................................ :............................ . 138 STATE & SOVEREIGNTY, LAW AND
Importance of Custom .......................................................................... . 139 ADWNISTRJ\TION OF JUSTICE.
Vedic·Conception of Law ..................................................................... . 139
Law as a measure of Security ................................................... ............ .. 140
·9
Greater Stress on duty ..·............................;.......................... ;................... . 140 STATE AND SOVEREIGNTY
Religion, Morals and Law Distinguished ............................................. . 141 ·oefinition of State ................................................................ ;............... 179
Law and Equality ................................ 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . . . . 142 ,:- Origin and Evolution of the State ............ :............................................ 180
Transitional period of law and legal system .................. ~ ...................... . 143 Devine ·Theory ........................ ........................................................ 181
Modern Indian Law distinguished from the ancient Dharmashastric The Natural Theory....................................................................... 181
conception of law ............................................ ~ ............ ."................. . 144 The Soc.ial Contract Theory ............................ ;............................... 182
Thomas Hobbes .......................................................... ....·............... . 182
8 John Locke ....... :...................................................... ~ ... · .. ····~•-.•······.. 183
NATURAL LAW THEORY Jean Rousseau ...........................·.;·········~····· .. ···••.•···•.· ·....................... 183
·,
Natural Law-Its Meaning and Definition ........................................... . 147 I The Patriarchal Theory................................... ........ ......... ...... ........... 184
Main Characteristics of Natural Law ................................................. .. 148 The Matriarchal Theory................................................................ 185
Natural Law distinguished from other Laws ........................................ . 148 Essential Elements (Requisites) of the State ................................. ;........ 185
Historical Evolution of Natural Law Theory ....................................... . 149 Population ................................................................................... ;... 185
Ancient Period ............................................................................ . 150 Territory:····················· .. ····················· ·······················'.··············;······ 185
Medieval Period ........................................................................... . 153 Government ...................................... ;...............·................................ 185
Saint Thomas Aquinas .................................. '.······· .. ············· ........ . 154 Sover.e ignty ...................... ·. .......... ... ......... ... ... ..... . .. ............ ..... .. . .. . . 186
The ·Period of Renaissance .............. ~ ............................................ . 156 State distinguished from Society, Nation arid Government. .................. ; 186
Hugo Grotius ......................................................................... . 156 · State and .Society ..............·. ............................... .............................. 186
Thomas Hobbes .................................................................... . 157 State and Nation........................................................................... 187
John Locke ........................................................... ....................... . 158 State and Government ....·.......... :.... ·.. ·.....·...................................... ;.... 187
Jean Jacques Rousseau ...................................... :....... ............... . 159 Functions of the State............... .............................................................. 187
Immanuel Kant ............ .-......................................................... . 159 Primary Functions . .. . . . . . . . ..... ............ .. . . . . . . . . . . . . . . . .. . . . . . .. .. . . . . . . . . .. .. . . . . . . .. 187
Decline of Natural Law Theory due to 19th Century Positivism .... . 160 Secondary Functions .............. ~......................................................... 187
Positivist's Hostility Towards Natural Law ........................... '. .... . 160 Inter-relationship between State and Law............................................ 188
Twentieth Century Revival of Natural law ................................. . 161 Membership of.State............................................................................ .190
Rudolf Stammler ................................................................... . Classification of States ............................... :........................................ 190
162
John Rawls ........................................................................... . 162 Unitary State...................................................................................... 190
Francois Geny ....................................................................... .. 164 Federal State....................................................................................... 190
Joseph Kohler ................................................. ...................... . 165 Federal State and Confedration Distinguished .. .. .... .. .. .. .. .... .. . .. . .. .. .. .. ... 191
Clarence Morris .................................................................... .. 165 Characteristics of a Federal State........................................................ 191
John Finnis ............................................................................ . 165 The Concept of World Federation......................................................... 192
Jerome Hall ........................................................................... 166 Sovereignty ............·.............................................................................. 193
Lon Luvois Fuller ................................................................... . 166 Evolution of the Concept of Sovereignty................................................ 193
Whether International Law is really 'Law' or not. ............................... . 167 Hobbe's Theory ........................................................... ·. ................ 193
 . xviii JURISPRUDENCE AND LEGAL THEORY CONTENfS xix

Bentham's· Theory ................ ;....... ~ ...............:\· ...................... :......... . 193 Natural or moral Law ................................................................ ;.... ..... . 231
A . .v ~ Dicey .......... .................... :.............;...........·)I ·· i............................ . 194 Conventional Law ................................................................................ . 232
Jethrow Brown .... ;.......... :....... ; .... ;..... u·....... :.. :.•.:·····••.·····.~ ·.... :.........:.. 194 Customary Law ........................................................ •........................ ;... . 232
Leon ·DugU:it. ...... ;........ ............. ;...... ,...... •.:• · .. , .... ,............. u ............... ; . 194 Practical or technical law .................................................................... . 233
Marxist. View· ......... "" ....... ;; ...•........:.: ....... ~ ............\>./....i:.~.. '. ................... . · 194 International Law ........... ; ........... ;................. :........................ ;.............. . 233
.Austinian Theory-of ·Sovereignty .. u .............. ; ,•'.··•--··~···• ..... : ... , ........ · 195 Prize Law ........................................... •.•·· ....................................... ....... . 235
Salmond's Theory of Sovereignty .................. ,.... ".•. :; ... ,................ ~ 197 Civil Law ........................................................................................... . 235
Criticism Againstabsolute Sovereignty ..... ·······:··-'· .. ······ ;~; ........... . 198. Austin's classification of Law ................................... '. .......................... . 236
. $overeignty under the Indian Constitution ............ ~ ...................... . 199· Holland's classification of Law ........................................................... . 236
Private and Public Law ............................... ·................................... ••... . 237
10 . Constitutional Law ............................. ............... ................................... . 237
THENATURE OF ·LAW Administrative Law ................................................................. •...... ••... . 238
.. .
Definition of "Law" .. ......... ... ... ... ..... .. .. ...... ... ... .. ................. . ...... .... .....
201 . General and Special Law ..................................................................... . 239
Distinction between "the law" and "a law" · : . . .· · ·. General Law ........................................................................ , ..... •••••••••. 239
2(14'.-
Nature and Function orLaw ... ·,.....................;...·;·.·.-.-: ~~·.:_-.-.-~~~~·.·.·_-_-_-::~:.•.·:'..-.-~:~~~·~? . 204 : Special Law ................................................................... ;··:···; ........ ....... . 239
Imperative Theory @I;· Law ............................................ :................ ;...... · · 205: Lo·c al Law ....................................................................................... . 240
Law as a Command~ ....................................................... :................ .".. , .. :: 205 Foreign Law ...................... :······ .. ···············'. ...................................... . 240
Criticism . by Henty Waine .................... ............................................... . .206 . Conventional Law ............................................................................ . 240
Salmond's Reply to l\laine's ·. Criticism .................................................. : 206 Autonomic I.aw .......................................................... , .................... . 240
Sab:riond's. criticism Against Austin's Theory .........~ ............................ ;... . 207 Martial Law .... ~................................................................ ............... . 241
Laws are principles .enforced by Courts (Neo-AustiruanView) ..... , ........ . .208 Martial Law distinguished from Military Law ............................... .. 241
Law as a norm of action (Kelsen's Pure .theory.of Law) ...................... , ... . 210 International law as administered in the Prize Courts ...................... . 241
Comparative analysis of Austin's and Kelsen's Views .......................... . 211 Mercantile Law .............................................................................. . 242
Criticism Against Kelsen's Pure Theory of Law ..... , ............ , ................. . 212· Substantive and Procedural Law .......................................................... . 242
Marxist Theory of Law ......................_................................................... . 212 Antecedent and Remedial Law ........................................................... .. 242
Legal Sanctions ................................................................................... . 215 Law. in Rem and Law in· Personam ....... u••·· .. •••••• ...................·................. . 242
Kinds of Legal Sanctions ...................................................................... . 216 The Common Law and Equity Law ........................................................ . 242
Territorial Enforcement of Law ............................................................ . 217 242
Cornmortlaw ...................... •.•··········.···············.····· .. ·······················; ...... .
Purpose and Function ofl.aw ....................................:·.. ;................. ·........... . 218 . Equity Law .......................................................................................·.;. · 243
La"':' as an instrument of s_ocial change .................................................. . 219 Comparative Law .......................... '. .................................................... . 245
Advantages and Disadvantages of Law .................. ............................. . 221 Comparative Law is not a 'law', instead it is a method of study .......... .. 245.
Legal Fictions and Presumptions ................... , .. , ................................... . 222 Classification of Comparative Law ............................................ '. ...... ;. 246
Question of Law and Fact. ................................... ·................. ;.............. . 224 . Importance of .· Comparative Law ...................................................... ,... . 247
Mixe<:f question of Law and Fact.;:····· .. ··· ..... ;........ ................................ . 225 Comparative law vis-a-vis Constitution of ·India ............................. _. ~;.. 248
Transformation of question of fact into a question of law .. :.. :: ................. : 226 Jurisprudential Importance of Comparative Law ....................... ............ . 249
Conflict of Law (Private International Law) .... ................... ;................ . 249
11
LAW-ITS NATURE AND KINDS .
Definition and Nature of Law
02---- .
Divine Law & Human Law~·············• ........................., ..................... .. 228 THE ADMINISTRATION OF JUSTICE
Public Law & Private Law
·································································· 229 Concept of Jus.t ice ......................... :............ ;.................... ~ ..................... . 251
··••,•················································•·... ·······......
Salmond's Classification of Laws
229 Justice according to Law ..................... '. ......................................... ••....... · 252
······················ .. ······· .............................. . 230 Importance of Administration of Justice ............................................... .. 252
Imperative .Law ................................................................................... . 231 The Concept of Social Justice ................................................................ . 253
Physical or Scient.ific Law .................................................................. .. 231 Distributive Justice ..................................... ................................... •· ... .. 253
xx ,. JURISPRUDENCE AND LEGAL THEORY xxi
CONrENTS

Corrective Justice·....·..........................................·..
I
t ............................. ~. · 254 Secondary .· Functions of Court .. ;...............·.. ···········~····;,r.-··';......•..... ;....... .. 291
Processua 1 Justice .................................................:; ................................... . 254 Independence of the'}udiciary .......................................... '..................... , 292
Origin of the Administration of Justice ..... ;··•·~······~·······;··············;········· 254 National Judicial Data Grid to Reform Court Management System ...... •· · . 290
Advantages and Disadvantages of Administration orJustice .. ;.; ........... . 255
Civil and Criminal Justice .......................................... :...•. ;................... . 255 PARTIII
Civil Justice ...... ·........ ~ ........................................... ;.............................. . 256 SOURCES OF LAW
Primary and Sanctioning Rights .......................·........... : ........................ . 257
~ /

Declaration of right ............... ~.•·········•·········· .. ······························~········· 258

Civil Suits-Causes of Delay .............................. ..................... ...... ;·••u••· 258 CUSTOM AS A SOURCE OF LAW
Model Rules for Speedy Dispensation of Civil Justice ........................... . 259 · .Sources ofLaw__;_Meanirtg ............................... ;...·L...................·..........·..• 297
Criminal Justice in Ancient India .................... ; ..................................... . 260 Salmohd's View ................................................... ·········:······················ 298
Theories of Puni$hment ....................................................................... . 261 Keeton's View .................................................................................... .. 300
261 ·Legal Sources .of English Law ............................... •.. ••••••;:•••••••••·••••········ 300
Deterrent theory ·······························•.t••·······························~········
Retributive theory ..............................': ....................... .................. . 262 Inter-relation between Sources of Law and Sources of Right ................... . 301
Sotirces oft,aw : Indian Perspective .................. :.•.•• ....... •.. •• .. ••••••••••··•••··· 302
Preventive theory ......................................................................... . 263
Expiatory Theory ........................................................................ . 264 Cu~tom as a Source ·of- "Law .. ;.;f'. .................. ••m••········ .............................. 302
Definition &Nature of Custom ..... ; ............................................ ; ......... . 303
Reformative theory ............................................................. ··~ .... . 264
304
Concept of Restrorative Justice~ .. ······· ....... ;................................... . 267 Origin•of-.C ustoms :J;..................................... ••.. •.... •.. ••••·••••••••••·•·•••••••••·•• .
. i Reasons for Recogtlition of Custom ........... •.... •••••.•••••••••••········ .. ····· .. ······ .. 305
Reformative Techniques in Juvenile Justice ..................... u ••.••.••••••• 268
Release of Offenders on Probation ................................................ . 269 Kinds of Custom . ;........................ ••••••••••.. •.. •.. •••.. ••••••••.... · · · · · · · · .. •.·.•· · · · · · · · · 3of
1. Conventional Custom ................ ••· ... •••••· ••.. ••••.. •· · · ·· · · · · .. · · · ··· .... · ... 308
Parole ......................................................................................... . 270
Custom Distinguished from Usage ........................................... .. 309
Forms of Punishment ........................................................................... .. 271
Corporal punishment .................................................................. .. 2. Legal Custom .................................. •••••••••••• .. •••·•··•• .. · ...... · ...... · .. 309
272
309
Flogging ....................................................................................... . 272 (i) Local Custom ..................... ••• .. ••••••••••••••••·•···················· .. ·····
Mutilation .................................................................................. . 272 (ii) General Custom .................................................................. . 310
Branding ........................ ~·························•; ......................... .- ........ . 272 Requisites of a Valid Custom ................ •• ... ••••·•••••••••·••••••·· .... ············· .. ·· 311
Chaining, etc ......................................... ~ ............................ ......... . 273 1. Reasonableness .................................................................... . 311
Pillory ...................................................... ;.... : ...................... ........ . 273 2. Consistency ..................... ••.•• .. •••••••••••••••• .. •••·•·················· .. ···· 312
Fines and Confiscation of Property ............................................... . 273 3. Compulsory Observance ........................................................ . 313
4. Continuity and immemorial Antiquity .................................. . 313
Security Bond ............................................................................. .. 273
5. Certainty ............................................................................. . 314
Deportation ................................................................................. . 274
Distinction between Custom and Prescription ........................................ . 314
lmprisorunent ................................................... .... ......................... . 274
Theories Regarding Transformation of Custom into Law ........................ . 315
Imprisonment for life .......................................... ........................... . 276
1. Historical Theory .............. ••••.••••••••••••• .. •••••·•• .. ••········· .. ········ 315
Solitary Confinement ....................... •.•················~····· ····· ............... . 277
2. Analytical Theory ...................... ·......................................... . 316
Capital punishment ................................................................. ..... . 277
Criticism Against These Theories ............. •••• .. ••••••••· .. ·············· .... · 318
Indian Position ...... ...................................................................... . 279
Importance of Customary Law ........................................... · 319
Supreme Court's view on sentencing ...................... ·.............. '. ................. . 285
Malirnath Committee Report on Reform-of Criminal Justice (2004) ....... ;. 286
Extra-judiciai Enforcement ................................................................... . 286 \__14
..,..,.,,.
Penal and Remedial Proceedings .......................................................... . 286 LEGISLATION AS A SOURCE OF LAW
Legislation-Defined .......................................................................... . 321
Administration of Social Justice .................................. , ........................ . 287
Supreme and Subordinate Legislation ................ •••. ••••••••.... · · · .. · · · 323
Distributive Justice .............................................................................. . 288
Validity of Subordinate Legislation .................................................... . 323
Gandhian Theory of Justice .................................................................. . 291
 xxii JURISPRUDENCE AND LEGAL 1HEORY CONTENTS xxiii
\ . . \
I
Kinds of Subordinate Legislation ............................................. . ·Crrcti.mstances which destroy the . binding forces of Judicial
323 Precedents ....... ... ~;., .................................. ......................................... . 353
Colonial Legislation .. :................................... ; ·
323 Ignorance of Statutes .~............ ~~ ................................ ~ ....................... . 354
Executive Legislation ....................................... ; ........................ :::
324 Inconsistellcy l:>etween earlier decision of higher court................ :... 354
Judicial Legislation ...................................... ..
324 Ii'l;consist.e ncy between earlier decision of higher court of the same
Municipal· Legislation................................................... ·
325 . rank.·.:......... :.•.•0 ••· .. •·• .. · ·.;·· ·· . . . . . . . . . . . ! ........... '. ............. !.; ................... . 3~
Autonomous Legislation ................................•.....'......................... . 325 -· Precede.n t suu-silentio ..... ;............................................................. . 354
Delegated Legislation ......................................................................... . 325 · Decision of equally divided court... :.......................................... ;... · 354
Delegated Legislation Differentiated from Executive Legislation ........ . Dissenting judgments . ;..................... .... :......................................... . 355
325
Growth of Delegated Legislation ........................................................ .. 326 Erroneous.decisions ............................................,·...._. ....................... . 355
Control of Delegated Legislation ......................................................... . Abrogated decisions ......................................... .............................. . 355
Procedural Control
327
Parliamentary Con~·;~{········· .. ························ ............................. . 327 Affirmation or reversal on a different ground ... ~ ........ ~ ............... , .. . 355
Ratio Decidendi .......... ;·................................. : .... : ........ ;................. ~ ....... . 355
Judicial Control
·······················.,,········································· 327
Obiter· Ditta ..........·... :.....................................·......................·.-............... . 358
············································································ 328 ·. . .

Doctrine ·of Stare .Decisis :.................................................................... .

C . d'Sub-·delegation
. I ............................................ . ............................... . 359
330
on 1t1ona Legislation ........................................... . Stare decisis distinguished froin res judicata ............ ; ........................... . 361
Legislation compared with other Sources of Law · · · .. · · · ...... · .. · .. · · .. · .. 331 Overruling ........................................... ;, ................................................ . 362
Legislation and Precedent....................................
···································
. ·
332 Prospectiv.e .o verruling ........... ;................................................................ . 362
Legislation and Custom ................................ . 332 Advantages and Disadvantages of·Precedent ....................................... . 364
••••••••• ~ •••••••••••••••••••••••••••••• ~ •••••••••••••••••••• ! ••••••••••
333 Merits~ ............................................................................. ~ ...........•........ 364
Codification of Laws
Merits and Demerits of Codi;i·~~~~~~ .. · .... · · · · .. · .. · .. · .. · · · .. · · ........ · ... · ...... · .... 333 Deme·rits·............ ; ............................. , ...................... ................................. ; · . 365 ·
····················································- 335 Judicial Creativity ................... ·......... ~·;·~............·.... , .........·; .................... . 368
Interpretation of Enacted Law ......................................................................
Interpretation-Definition
K.· d f I · · .·
,
. . ................................................................. .
336 16
336
In S O. nterpretatjon ........................................................... . OTHER SOURCES OF LAW
The Golden Rule of Interpretation................................... .. · · · ··· .. ·· · ·
336
L . f ·· . · . ..................... . Religion ............... . ............... ;............................................................... . 369
337
og1ca Interpretation ......................................... . Digests, Literary Works and Treatises As Source of Law ...................... .. 370
The Ejusdem generis Rule · .. · · · .... · · · · · · .. · · · · ...... · · .. 338
Social Values and Professional Opinions of Eminent Jurists, Judges etc .•.. . 373
The Mischief Rule ······································································ 338
Equity as Indirect Source of 'Law ............ :.;; ........................................... . 374
Restrictive and Ext~.~~~·~~··~~·t·~;~~·~~·~·;i·~~.·.·.·.·.·.·.·.·.·.·.~~~~:::::::::.·:.·.·.·.·.·.·.·.·.·.·.~:::::::::
339
Equity defined ................................................ '. .......................... :........ . · 374
340
Historical Interpretation ..................................... .. · Origin and Development of Equity ..................................................... .. 374
341
Interpretation and Construction Distinguished ....... ::::::::::::::::::::::::::::::: The . Exchequer .................................................................................... .. 375
Harmonious Construction 341
Court of Corrtlllon Pleas ........................................................................ . 375
General Rules of Inter~;~·;~·;i·~~........................................................ . 342
Equitable Remedies .............................................................................. · 377
····························································· 343
Judicature Acts, 1873 and 1875 .............................................................. . 377
15 Equity Jurisdiction in India .................................................................. .. 378
JUDICIAL PRECEDENT
Precedent as a source of Law
·································································· 349 PARTIV
Nature of Judicial Precedent
Binding force of Precedents
································································· 349 JURIDICAL CONCEPTS AND ]URAL ANALYSIS
Kinds of Precedents ··································································· 350
·············• ................................................................... . 350
17
:os~t~on in India .................................................................................. . LEGAL RIGHTS & DUTIES
351
os1tion in England ................................. .. Legal Concepts .................................................................................... . 383
Declaratory Theory of Precedents ................................... · .. ··· ·· · 352
······• .................................................. . 352 . General meaning of the term Right ...................................................... . 384
 CONTENTS XXV
xxiv JURISPRUDENCE AND LEGAL THEORY
Primary and Sanctioning Rights (Antecedent & Remedial

~~~::~~~'.'."..·.·.·.·.-.-.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.·.-:.·.·:.·.·:.·.-.::·.'.·.·.•.·.·.:::::::·.:::\:::::::::::::::::::::::::::::: 384 Rights) ................................................................................... . 406

384 Legal and Equitable Rights ......................................................... . 406
Classification of Legal Duties ........................·.~······················;····· 385 Vested and Con~ingent Rights .................................................... .. 407
Positive and Negative Duties ........................ :; ............................ . 385 Public and Private Ri_ghts ............................................... ;............ . 408
Primary and Secondary Duties ..................................................... . 385 Servient and Dominat Rights ...................................................... .. 408
Absolute and Relative Duties ...............................,......................... 385 Jus ad rem ............................................................................................ . 408
Legal Rights .......................................... ;........ ~··················· ................ . 386
Theories of Lega.l Rights ............................................................... ·....... . 391
18
Will Theory of Legal Right ......................................................... ; POSSESSION
391
Nature of Possession .............................·.............................................. .. 410
Interest Theory of Legal Right ............ :....................................... .. 391
Possession under Roman l.aw ................................................................ . 411
Protection Theory of Legal Rights ............................................... . 392 412
Possession under the English Law ........................................................ ..
Essential Elements of a Legal Right.. ......... i........................................ .. 392 Whv Law Protects Possession ............................................................... . 412
. The person of lnherence .......... :.......... ~· ....................................... :· .. 392 Meaning of the term 'Possession' .......................................................... . 413
The person of Incidence ........................................................... ;.... . 393 Possession in fact ................................................................................. . 414
Contents.of th·e Right .... ~ ............................................................... . 393 Possession in Law ................................................................................ . 415
Subject matter of Right .. ~ ............_........................................ ; ........ . 393 Elements of Possession ............................ -............................................ . 420
Title of the Right ........................................................................ . 393 Corpus Possessionis ...................................................................... . 420
Can there be an ownerless Right .......................................................... . 394 Animus Possidendi ............................. ,. ..... -............ ~ ............. ; ........ . 422
Can a Right he used agains.t the State ................................................. .. Th~ories of Possession .................................................................. . 423
395
Savigny's Theory of Possession .............................................. . 423
Enforcement of Legal Rights ................................................................ . 395
lhering's Theory of Possession ................................................ . 424
Legal Rights distinguished from Moral Rights ..................................... . 395 424
Kant's Theory of Possession ................................................... .
Legal Rights distinguished from Fundamental Rights ........................ ;.'. 396 Salmond 's Theory ................................................................. . 425
Rights and Duties are correlative ........................................................ . 396 Holland's Theory ................................................................. .. 425
Legal Right and other Related Concepts ........................... ~ ................. .. 398 Holmes' Theory .................................................................... . 425
The Concept of Duty ................................................................... .. 398 Pollock's Theory .................................................................. .. 425
Right and Liberty ....................................................................... . 398 Kinds of Possession ..................................................................... •• ....... • 426
· Austin's view .............................................................................. . Corporeal and Incorporeal Possession ........................................... . 426
398
Mediate and Immediate Possession .............................................. . 427
Salmond's criticism against Austin's view .................. :................ .. 398
Quasi-Possession ....................................................................... .. 428
Power and Subjection ........................................................................... . 399 Concurrent Possession or Duplicate Possession ............................... . 428
Immunity and Disability ..................................................................... . 400 Constructive Possession ................................................................ . 428
Hohfeld's Table of Rights and its co-relatives .................................... .. 400 Adverse Possession ....................................................................... . 429
Classification of Legal Rights ............................................................ .. 401 Mode of Acquisition of Possessi0n ......................................................... . 429
Perfect and Imperfect Rights ....................................................... . 401 The Continuance of Possession .............................................................. . 431
Positive and Negative Rights .................................................... .. 402 Possession in fact and Possession in Law-Distinguished ...................... .. 432
Antecedent and Remedial Rights ................................................ .. 403 Relation between Possession and Ownership ....................................... .. 432
Rights in rem or in personam ........ ............................................... .. 403 Possessory Remedies and Proprietary Remedies ................................... . 434
Classification of antecedent rights in rem ................................... .. 404 Objects of possessory remedies are threefold ......................................... . 434
Proprietary and Personal Rights ............. ,................................... .. 404 Doctrine of Jus tertii ............................................................................ . 435
Rights in re propria and Rights in re aliena ................................ .. Possession under the Indian Law ......................................................... .. 435
405
Relation between Possession and Ownership restated .......................... .. 437
Principal and accessory Rights ................................................... .. 406
 JURISPRUDENCE AND LEGAL THEORY CONTENI'S xxvii
xxvi
\
-19 \ Acts in the Law 464
OWNERSHIP. Acts of the Law 464
439 Bil~teral acts are called-' Agreements' ................................................. . 465
Legal incidents of Ownership•·····························'~····•·;·························
Rights of Ownership and the Ownership of Right:-Distinguished ....... . 439 Kinds of .Agreements ...-........... :............................................................. . 466
Definition of Ownership .................... •· .. •... •.. •••••••••••· ••••••••••••••••· •·· •· ••••• 440 Valid Agreements ...............................................................-. ............... . 466
Austinis Definition of ownership ........................_. ......................... . 440 Void agreements_ ......................................................................... ." ...._... . 467
Criticism against Austin's Definition of Ownership ............... . .441 Inval_id Agreements ............................................................................. . 467
Salmond's Definition of Ownership .......................... ~···············:· .. 442 __ Voidable Agreements ............•......................................................... .-... . 467
Criticism .............................................................................. . 442
Some 'other views regarding ownership .....,. ........ •.. ••• .. •••·••.•••••.•• .. •••·.••••• 443 21
Holland ...................................................................................... . 443 PROPERTY
Keeton ........................................................................................ . 443 Meaning of 'Property; ........................._.......................................... _....... . 471
Buckland ..................... •··•···•·•· .....';.... ··········································· _
443 'Property' as interpreted by the Supreme Court of India ........................ . 473
443 Theories of ~>roperty ............................................................................ . 474
Federick Pollock·······················'.··················································
W·. N. Hohfeld ........................................................................... . 444 474
The Natural Law ·Theory·····························~············~··················
G. W. Paton ..................................................................._............... . 444
The Labour Theory ...................................................................... . 474
Ownership under Ancient Indian Law .................. ••.. ••••••. •••••••••· •· •••· •••••• 444
445 The Metaphysical Theory ........................................................... . 475
Gandhian concept of Ownership .................................. •.. ••.. •......... ••••... .
446 The Historical Theory ................................................................ . 475
Characteristics of Ownership ................... ~ .......................................... .
Subject-matter of Ownership ............................................................... . 447 The Psychological Theory ........................................................... . 476
Ownership of Material Things ............................................................ . 447 The Functional Theory··········································:····················:·· 476
Acquisition of Ownership ....................................... •···•·•·······•·•·•• ... •·•··•• 447 Theory that Property is the creation of State ............................... . 477
Accession ............................................................................................ . 448 Kinds of Property ................................................................................ . 478
Different Kinds of Ownership ............................................................. . 449
Corporeal and Incorporeal Property ..................................................... . 479
Corporeal and Incorporeal Ownership ....................... •.......... ••. •... • 449
450 Movable and Immovable Property ....................................................... . 479
Sole Ownership and Co-ownership ..................... •........... ••••.•••·••··•
Trust Ownership and Beneficial Ownership ................................ .. 451 Real and Personal Property ................_........................ ·......................... . 480
Trust and Contractual Relations ................................................... . 452 Rights in re propria in Immaterial Things ............................................ . 480
Trust and Agency .. , .............................. •• .. ••••••.••••••••••·••••••••••·•·•••••• 452 Patents ....................................................................................... . 480
Legal and Equitable Ownership ........................... ~ ...... .- ................ . 453 Cop_yright ............... ..................................................................... . 481
Vested and Contingent Ownership ............................................... . 453 Commercial Goodwill ................................................................. . 481
Condition Precedent and Condition subsequent.. ........................... ;........ . 454 Rights in re aliena (Encumbrances) ....................................................... . 481
Conditional Limitation ............................ :.................................. . 455 Lease .......................................................................................... . 481
Absolute ai""ld Limited Ownership ............................. •............. ••· •· • 456 Servitudes .................................................................................. . 483
International Ownership ..................................................... •·· .... •· 456 Security ...................................................................................... . 484
Significance of ownership in the Modem Social context ........ •... •••••.. •••••• 456 Mortgage .............................................................................. . 484
Modes of Acquisition of Ownership ...................................................... . 457 Lien ...................................................................................... . 485
Ownership and Possession Distinguished ............................................. . 458 Distinction Between Mortgage and Lien ....................................... . 486
Trusts ...................................................................... ~···························· 487
20 Trust distinguished from a Mortgage .................................................... . 487
TITLES Modes pf Acquisition of Property .......................................................... . 488
Definition and Nature of Title ............................................................. . 460 488
Classification of Facts Comprising Titles ............................................. . 461 ~i:::::~~~o·~·::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 488
 . ..

xxviii JURISPRUPENtEANDLEGALTHEORY
CONTENTS• xxix
. Agreem~nt ............ ·~ ......... ,. · ·· · ·:··. · · · · ··· · · · ;~... · '.\~ · · · ··. ~ · · · · · '. ·; ;. · · ··; ·'.7 ~ •;. ·; •••• 489
Inheritanc-e .... .:................. :· .•...~· ....... i·•••_., ••••••• ~ ••• :•••••.••.; :.••• .••.• ·•• ; •.• i .• •.••••.•• ::·. 491
Limit~ticin ·of· time ............. ~ ...... ;.; ..... :;, .. ;... ;.~ ..... ;...... :... ;~.~:..:........ ~ 491 'LiA:BILifi
Limitation of Quantum Amoµnt ..... '..;~ .....•.. :>~ ............. :.;...:... ;'.u .. :.• ,•~·· · ·· 492 531
Limitation ·of :purpose .............·.. ;...... H• ..·..... ~. ;.... ;.~'. ;~~ .. u...·;; :... ;.: .....· 492 ·· .. ~\:j~c:~ti?!,!~:(;j;;;·;h}"~J;iri;Y\\~biii;;::'.::::,·::::::::d:::::.~.:::: . 531 .
Rules against ~njust Enrichment ........ , .......••............. :.. :.•..........· ·:· ....... ; ..• 493 . Perial '.a nq ·Remedi;;tl Liability~:;~~: ... ;~••n•····· . ····;·~····:· .. ;.... ..
~ uo.. ;.. ~i. ....·.:. 532
Right to Prop.e rty in Iridia .................................... ;; .-............................... 493 'Jh~ory•of R~medi~l Lia~ility .... i;,.,,.,.~ ..... ;..... .,.~~.: ...•................ ~ .•... ~· ... :;.·.. 532
~:?1·Jhibil~ty:.....·......... ~ ... '..···········;; .. ~ ..•~.,·'.·;······:·············•·.··•h••···~·····;· . 533
22 .. . . ................................................................................-~- ....... . 534
LEGAL.. PERSONALITY Act andEve~(Distinguished ..... :.;; .. , ...•. '..;~·••u~•··········: ............. ;........... . 535
:,., . : . .

Origin of the Concept of Legal PersonaH,:ty.:.:········ .. •···· .. ·······: .. ~.<; ..... ~ ..-; ..· 495 Kinds of Act . ................ " .............................................. ..... . ~
535
Legal Personality is a· fiction of law ....• ,.,, .......:..·..... ,....... ,........ u..........,; 496 Xoluntary.·and InvoluntarY} Acts.;.,;;uu•; .. :.,.......................•.•.... :;, .... ·
Intentiomil an~ Unintentional Acts~·~···~·······;··: ..........• ; ... ~ .. '.~ ...•.....
535
. 496 535

·;;:i:~~~!~+:::::::\::::::::::::::::::::::::::'.::'.::::::::::r:?r:::,. ·.
Legal status of Animals .•....... '. ................. ~............ ;................. ;•.\.i .. .-..... .
497
·.· ·49g
499.
· Internal and External Acts ........................................................... .

~zt:::~:,~j~;;~'::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::/:Y::::::::
536
536
537
Legal status. of Idol and Mosqueu,••········ ........................................ O. ...... .· 501
Double Capacity"Disting1:1ished from Double Personality .... ; ....... ; ... ~ .•. ;. · 502
Kinds of legal ·Persons ................ :.......... ~··········:··········· .. ··········~····: ...... . ··503
;~~~!.~"itf:;;t;;:z::;:::::::::,_:::::·:·::Ei:_?::::::::::::::-.::-:-:-:::?E:F.:::::::
u.;~ .. .. ;.... .
.• Application.of the Doctrine of Mens red in India .. ;............. :.. ~
.538
538
539
541
Corporate Personality: Its nature .. u ................................................ ; •••• 504 Exception to the Doctrine of Mens rea ........ '. ......................................... .. 541
Characteristics of an Artificial Person .................. ;............................... · 505 Mens .Rea in Socio-Economic Offen~es .......................... ;...•.............. ~ ..... . 542
Corporation A·ggregate .... ·............... '. ........ :............................... .-; ... ; . :..... . 505 Pte$urription of Innocence .. u••···; ..•••••.••• '. ....................................... ~ •••• : •••• 542
Utility of Corporation Aggregate ........•................................................ 507 Malice .... , ........................ :: .... : ..... ;... ~.~ .... ~~ ..'............ ·.H .". .......•.·.. ;:.:•:·.'..... .. 543
Lifting or Piercing the Corporate v.eil... ..................................... ;....... :.. 508 . Transferred Malice (Generic· Interition)'. ..·..................... :........ ,... :........... . 544
Company or Corporation whether Citizen of India ........... : ............ ;...... . · 513 :·Different stages in the commissioti. of Crime ..... :···· .. ······· .. ·····••.•·;····: .•..... 544
Corporation .Sole ................ ...•.......... ;.........................................; ... .... ;... . 514 Intention and Motive ...•.. , ......' ................... , .............. ·....... _-.......·•.• ...... ;.... . 544
The Positio_n of Corporate -Personality in India ............... :..................... . 515 Intention and Knowledge Distinguished .......... ~ .................. ~ ....... ~ ... 547
Advantages of Incorporation .... :............................. , .............................. . 517 .Pr.e paration ... ·.......... ·...•. ·.·.; .... ,................ ·.............. ~ ... ·...... ,.; ...... ......,., . .•··· 547
Criminal Attempt ..................... ·.... ;........................................ ·.... :.~ ...•. ·.. 547
Creation and Extinction of Corporations ............................... , ............... . 518
·.Commission of Crime·.............:....................................... ;..·.·.......... ;•; .. 548
Liability of .Corporations ............................................. ·....................... . 519
Negligence . ...·•.................... ;..•. ·.............. ;.......... :., ..................... ; ...,; . .- •.. .-. ... . 548
Civil Liability· .... :.............................................................................. . 519 . Theories of Negligence ...... ;........... ;................................... :.. ;... ;.... ;..... . 549
Criminal Lia.bili ty .............................................................................. . 521 Subjectiye Theory .of Negligence·; ................•....... ; ............•..•. ~ .. '.···· 549
Theories of Corporate Personality ....................................................... . 523 . Objective Theory of Negligence ....................................... ;........... . 549
Fiction Theory .................................................................................... . 523 . Kirid·s· of Negligence·........................ :... ••.•········ .. ·· ... · ................................. . 550
Realist Theory .................................................................................... . 524 Degrees of-Negligence; ..;............. ............. ·...................................~ ......•...; .. .-... . 551
Bracket Theory ................................................................................... . 525 · Legaf·.W rongs ., .............. ~ ................................... ;:';..................... :..... ~--··· 551
Concession Theory ................................... ............................................ . 526 Crime and Torts Distinguished .............................. , ..................... ~ ........ . 552
Purpose Theory ........................................................................... . 527 Wrongs of .Strict Liability ............................................ . ........... :········· .. 554
Appraisal. .......................................................................................... . 527 Mistake of Law ...................................................................·..·.... ·... . 555
Unincorporated Associations ............................................................... . 528 Mistake of fact ...... .... ....................................................... :., ........ . 555
Conclusion ........................................................................................... . 529 Inevitable Accident................................................. ·.........·.......... . 556
Transformation of
Strict liability 'Rule into Absolute Liability ...... ;: .. .. 556
XXX JURISPRUDENCE AND LEGAL THEORY CONTENTS xxxi

Vicarious Liability ... , .......... ·............................. ~'. .................. ................. . 558 PARTV
Measure of Liability, ....................... ;........_.......... ;_................................ . 559 RECENT TRENDS IN INDIAN JURISPRUDENCE
Criminal Liability .... , ......................................... ;'. .......................... ~ .. .. 559
Motive ................. ,, ........................................... ·..... ;, ...._.........-.. ; ............ . 559 26
Magnitude of the offel'\ce ........ .- ................................ ~ ........................... . 560 RECENT TRENDS IN INDIAN JURISPRUDENCE
Character of the offender ............ ·.................................................. .... . 561
Inter-relation between Law and Society .............................................. .. 591
Civil Liability ........................................................ -: .......................... . 561
Role of Law and Legislation ................ i . . . . . . . . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592
24 Th~ Indian Constitution-A Social Document. .........._........................... .. 593
Independence of Judiciary ............................. _....................................... . 596
OBLIGATIONS
Judicial Activism ................................ ~ ............................................... . 596
Definition of ObligctHon ............................•...... ·.................................. .. 563
Exemplary Damages for Misfeasance by Public servents-A New
Chose m Action ................................................................... : ........... ~····· 564 Trend ............................................................................................ . 598
Chose in PossessiOI'\-._.............................-.............................................. . 564 Epistolary Jurisdiction ........................................................................ . 599
Solidary Obligations ..............................,{........................................... . 565
Caution Against Excessive PIL ............................................................. . 599
Kinds of ·obligations ............................................................ : .............. . 566 Social Justice through Legal Aid and Lok Adalats ............................... .. 602
Contractual ObH.ga tions ........................... ••••••••••••.... ••.. •••••· · · •· · · · · .. 566 Historical background ........................................................ ;................ . 603
Delictal Obligaliohs .................................................................. .. 567.
Role of Supreme Court m implementing Legal Aid Scheme ................... .. 605
Quasi Contractqal Obligations .................... ~ .............................. .. 569 Legal Aid Programme in different States ............................................. . 606
Theory of unjust l!hrichment ...................................... •••••••••, •••••••••• 569 Lok Adalats .......................................................... ·....... ;...................... . 606
Innominate Obligations ......... ;................................... ~ .. ············ ·· ·· 572
Plea Bargaining ............... _................................................................... . 608
25 Compensation to Victims of Crime ......... ~ ............................................ .. - 609
Alternative Dispute Resolution (ADR) ................................................ . 611
THE LAW OF PROCEDURE
Fast Track Courts ................................................................................. . 611
Substantive and Procetlural Law ....... ................................................... . 574 · Human Rights Jurisprudence : The Indian Context.. ..... ~ ........................ .. 612
Difference between Subitantive and Procedural Law ................... ·......... . 575 Indian Position ............ ~ .............................. ~ .......... ............................... . 613
Various Stages of Judld1\ Procedure .................................................... . 577 NHRC's Intervention to protect Human Rights Violations .................. .. 617
Evidence .................... ,,,~ ...................................................................... . 578 Suggestion for Better Implementation of Human Rights ........................ . 618
Definition of Evidence ................................................ ~ ............... .. 578 Rule of Law and Good Governance ............... ;........................................ . 619
The Object & ~Urpose of Evidence ................................................ .. 579 The Modem Feminist Jurisprodential Trend .......................................... . 621
Oral, DocumentElry and Real Evidence ...................... ~ ................. .. 579 International Effiords to eliminate Gender Inequality .......................... . 622
Distinction betw~eh Proof and Evidence ...................................... .. 579 International Women's Year, 1975 ........ ~ ............................................... . 622
Kinds of Evidence .•..•.,. .......................................................................... . 580 Elimmation of Gender Discrimination in l'P,dia ..................................... . 623
Judicial & Ext~a"'Judicial Evidence ............................................... . 580 National Commission for Women .......... ;............................................... . 624
Substantive and Non-substantive Evidence ............................... ... . 580 Protection to Women under Criminal La~............... ~ ............................. . 624
Positive and Nei·Mive Evidence .................................... ~ ............. . 580 Judiciary's response to feminist Jurisprudence~ ..................................... .. 624
Personal and R~i :E vidence ...................................... ••• .... •·•• .... ····• 581 Dalit Jurisprudence ....................................... ·, .................................... . . 627
Primary and Se~ndary Evidence .............................-............. ••·.•••• 581 Constitutional Protection for Dali ts ....... ............................................. .. 627
Direct and Cir~ufustantial Evidence ............................................. . 582 Judicial Response Protection of Dalits ................................. .. .............. .. 628
Original and li'earsay Evidence ................................................... . 582
SUBJECT INDEX ............................................................................... .. 631
Production of Evid~nce ......................................................................... . 583
Presumptions ......................................................................................... . 585
Presumption of lnnocel')ce of Accused .................................................... .. 585
Probative Force of Evi.d·e nce ................................................................. . 586
Some suggestions ........ , . . . . . . . .. . . . . .. . . .. . .. . . . . . . . .. . . . . . .. . .. . . .. .. . .. .. .. .. . . .. . .. .. .. .. .. . . . 586
 TABLE OF CASES
A Attorney-General . v. Edison
A. K. Behra v. Union of India .................... 360
A. K. Gopalan v. State of Madras ..............50
A. K. Kraipak v. Union of India .. :... 175, 254
A. N. Roy v. Suresh Shayam Singh........... 342
A. R. Antulay v. R. S. Nayak... 19.0, 351,595
A. Wati Ao v. State of Manipur ............... 275
A.D.M. Jabalpur v. S. Shukla .......................49
Abrath v. North Eastern Railway
Company ............................. ~······················520.
Additional Commissioner of Income
Tax v. Surat Art Silk Cloth
Manufacturer's Association ............... 3 3 7
Ahibaran v. State .......................................... 586
Air India Statutory Corporation v.
. United Labour Union............................ 597
Air India v~ Nargesh Meerza ................... 119,
323, 329
Akhil Bhartiya Soshit Karmachari
Sangh (Rly) v. UOI.. ................................... 14
Ali Khan v. Abdul Ghani ........................... 258
Allen v. Ernmerson......................................... 339
Allen v. Flood ........................................537, 543
Allen v. Waters & Co ...................................401
Anant Gopal Sheorey v. State of
Bombay....................................................... 344
Ancona v. Rogers ........................................... 416
Angus v. Dalton ............................................. 313
Apparel Export Promotion Council
v. A. K. Chopra ......... ;............................... 616
Armory v. Dalamirie .................4i8, 433, 488
Arvind Mohan Sinha v. Amulya
Kumar Biswas ......................................... 560
Asarabulla v. Kiamtulla ................. ;.. 309, 311
Ashby·v. White ............................................... 53~
Ashish Batham v. State of M.P .................. 582
Ashok Kumar Dixit v. State of U.P .......... 176
Ashok Kumar v. Delhi
Administration ........................................ 27 4
Ashray Adhikar Abhiyan v. Union
ollndia ....................................................... 499
Atlantic Smokes Shops Ltd. v.
Comlin......................................................... 345
Attorney -General v. Don &
Canons of Windsor ................................ 352
Attorney-General of India v.
Lacchma Devi & others......................... 282
( xxxiii )
Telephone Co:_···- - - ~ -...................345
B
B. Gangadhar v. B; R. Rajalingam~..411, 437
BabaNarayanv. Saboosa ................ 308, 314
Baba Ramdev's case ... _________ 12
Babha F. Guzdar v. Commissioner
of Income-tax, Bombay...............;.516, 529
Bachan Singh v. State of Punjab... 00280, 361
Baldeo Singh and others v. State of
BiNr_ ............................................... . ......... 587
Balraj v..State..........................•...... :...._· --.610
Bairam v. State of Madhya .
Pradesh ..............·............................... 597, 614
Banarasidas v. Mun.icipal
Committee, Wardha .._...........;...................345
Bandhua Mukti Morcha v. Union
of India ··········---············l9, 50, 119,
175, 290, 597, 599, 614
Bangalore University v. St. John
Medical College .....................~.................3 2 7
Banwarilal Agarwal v. State of
Bihar __ ........................................................ ·327
Bar Council of India v. High Court
of Kerala ....... _ _ _ _ .;...................51 ~
Baslley v. Oarkson. ......................................556
Basti Sugar Mills Co. Ltd. v. State
of U.P ................................... ·......................... 14
Becke v. Smith..................................................337 ·
Bela Banerjee v. State of West
Bengal. ........................ ·... ·...: ... .••·· ·..............113
Benett Colemnn & Co. v. Un:ion of
India ..............................................:.... 330, 513
Bengal Immunity Ltd. v: State of
Bihar.................................................: 131, 351
Bhagwandas Keshwani v. State of
Rajasthan .............. ,........................ '............58 7
Bhagwati ·v. State of Utt~r Pradesh.. ~ ......330
Bhikhabhai Devshi v. State of
Gujarat & Others..................................... 276
Bhim Singh v. State of J&K. .............. 175, i 76,
266, 286, 346, 597
Bhoginbhai Hirjibhai v. State of
Gujarat........................................................119
Binna v. State .................................................. 235
Bishamber Dayal Chandra Mohan
v. State of Uttar Pradesh.......................493
Blundell v. Catterall .....................................310
 xxxiv JURISPRUDENCE AND LEGAL THEORY
Blyth v. Birmingham Water Works
Co.................. · ..... _....................... 549
Bodhisatva Gautam v. Subra
. Chakravarty.......................... 610, 615, 626
Bodshah v. Smt. Urmila Badshah
Godrse ........................................................ 624
Bonsor v. Musician's Union ...................... 529
Boynton-wood v. Trueman ........................ 416
Boys v. Chaplin.............................................;352
Bradford Corporation v. Pickles ............. 537
Brayantt v. Foot. ............................................ 313
Bridges v. Hawkeshworth ...... 357, 415, 425
Brij Mohan Lal v. Union of India ........... ; 611
Brown v. Board of Education ................... 353
Brown v. Burdett. .......................................... 492
Brvantt v. Foot ............................................... 309
Byram Pestonji Gariwala v. Union
of India ..........................................................53
C Gajraj Singh v. State Transport
Cain v. Moon .................................................. 430
Candler v. Crane Christmas & Co ............ 363
Cartwright v. Green ..........·-························418
Cassell & Co. Ltd. v. Broome ..................... 368
Central Inland Water Transport
Corporation Ltd. v. Brojo Nath
Ganguly............................................. 220, 510
Centre for Legal Research v. State
of Kerala .................................................... 606
Chal.rman, Railway Board v. Mrs.
Chandrima Das ............................... 175, 615
Chameli Singh v. State of U.P..................... 494
Charles Shobraj v. Supt. Central
Jail. ......................................................... ·..... 613
Chatra Kumari Devi v. Mohan
Bikram ........................................................ 407
Chaturbhuj Vithaldas v.
Moreswar Parashram ........................... 352
Chawla v. State of Haryana ...... ................ 281
Chintaman Rao v. State of Madhya
Pradesh ....................................................... 328
Citizen's Life Assurance Co. v.
Brown ............................................... 504, 520
Collector of Madura v. Mooto
Ramalinga ......................................... 139, 307
Colonial Bank v. Whilley ................. .505, 507
Cornford v. Carlton Bank................... 519, 521
Commissioner of Income-tax v.
Meenakshi Mills Ltd ............................. 511
Common Cau~z (A Regd. Society) v.
UOI .............................................. 22, 598, ·601
Connors Brothersv. Connors ................... 510
Consumer Education ·. &
Research Centre v. Union of
India ........................ .50, 114, 117, 347, 373
Cooper~ v ..Stevens :............................. .500
Corporation of Calcutta v. Liberty
Cinema ··. ......................................328
Crawford v. ~pooner....................................337
D F
D. K. Basu v. State of West
Bengal.............. ~..... 205, 267, 594, 610, 613
D. P. P. v.' Kant & Sussex
Contractors Ltd .......................................521 -
D. S. Mills v. Union of India ...................... 323
D. S. Nakara v. UOI ............................ 114, 287
Dada v. Babaji ......................................- ...3 79
Daimler Co. Ltd. v. Continental
Tyre & Rubber Company ......................510
Dalbir Singh v. State of Punjab ................ .281
D~modar Rao v. S.O. Corporation,
·· Hyderabad .................................................597
Daniel v. State.................................................389
Daya Singh v. Union of lndia ................... .282
Dayanidhi Bisoi v. State of Orissa .........283
Debashish Sahu v. Nabeen
Chandra Sahu ........................................;..584
Deepak Sibal v. Punjab University ..........329
Delhi Development Authority v.
Skipper Construction Co (P)
Ltd ................................................................512
Delhi Transport Corpn. v. OTC
Mazdoor Congress ................................... 22.
Deo Narayan v. State of U.P . .................... .542
Derry v. Peak...................:...............................353
Devkinandan v. Muralidhar .....................501
Dharshna Devi v. State of
Haryana ..................................................... 176
Dharumal v. Punam Chand .........................324
District Collector v. Shaik
Hasmath Beebi.............:······························22
Donoghue V; Stevenson ............. 353, 358, 367
Doon Valley case........................................... 175
Draiviasundaram v. Subramania .............499
Dudley v. Duddly...........................................3 78
Dudley v. Stephens ....................................... .546
Dupott v. Steel ................................................368
Dwarkadas v. Sholapur Spinning
& Weaving Co........................................... 131
E Isher Das v. State of Punjab ....................... .560
EV Chinnaiah v. State of Andhra
Pradesh ............................................. 628, 629
Ediga Anamma v. State of Andhra
Pradesh ....................................................... 281
Edward v. Midland Rly. Co ...................... .521
Electronics Corporation of India
(M/s.) v. Secretary, Revenue
Dept. Govt. of Andhra Pradesh ......... .518
· TABLE OF CASES
Elliot v ..Lord Jo_icey .,•.......................:.. :....... 497
Elwas v. Brigg Gas Co ................................. 416
Emperor v. Chidan ........................................ 583
Eston Baker v. Queen................................... 278
Fertilizer Corporation Workers
Unionv. Unionof lndia ........................ 597
Fibrosa Spolka Akeyjna v.
Fairbain Lawson Comb ........................ 569
Filburn v. Aquarium ..................................... 556
Francis Coralie Mullin v. ·
AdministratorU. T. Delhi... ................ 266;
597, 614
G Secretary, Bihar......................................... 21
G. Vishwanathan v. Hon'ble
Speaker,·Tamil Nadu Legislative
Assembly, Madras.................................. 223
. India .............................................................346
Appellate Tribunal ................................ 223
Galle v. Lee & another........ :........................ 357
Ganpati Singhji v. State of Ajmer ............. 330
Gasque v. Commissioners of Inland
Revenue ...................................................... 514
Gaurav Jain v. Union of India ........... 19, 614
Gerard v. Worth of Paris Ltd .................... 354
Gian Kaur v. State of Punjab ..................... 349
Giani Bakshish Singh v. Union of
India ............................................................ 342
Gokul Chandra v. Praveen Kumari ......... 314
Golak Nath v. State of Punjab .....................64,
118, 132, 292, 349, 350, 351,
353, 363, 367, 373
Gopalchari v. State of Kerala ..... ;............. 606
Gorris v. Scott ................................................ 339
Government of A.P. v. Vijay Kumar ........ 598
Grant v. Easton............................................... 570
Gray v. Pearson ............................................. 337
Great Northern Rly. v. Sunburst Oil ...... 363
Grill · v. General Iron Screw
Colliery Co ................................................ 548
Growhurst v. Amersham Burial
Board .......................................................... ~41
Gurmeet Singh v. State of U.P .....................283
Guru Dutt Sharma v. State of Bihar....... .472
Guru Swamy v. State of Tamil Nadu ...... 281
Guruswamy Raja v. Perumal. .................... 314
H Traders (India Ltd) .................................339
Hadley Byrne v. Heller ................................ 36 7
Hamdard Dawakhana v. Union of
India ..... ·.......................::............................ 331
Hamperton v. Hono ....................................... 313
XXXV
Hannah v. Peel ...................................... 417, 446
Harl Singh v. State of Haryana .................350
Haria v. State of Rajasthan ........................327
Harman Singh v. R.T.A. ................................323
Harprasad v. Shivdayal... ........................... 304
Hata Singh v. State of Madhya
Bharat (now MP) ................................... .579
Hedley Byrne v. Helier................................ .363
Hibbert v. Mc Kiernan.~ ...............................417
Holicow Pictures (P) Ltd. (M/s.) v.
Prem Chandra Mishra &
others..... :.....................................................601
Hollins v. Fowler.......................................... .556
Hussainara Khatoon v. Home
Hussainara Khatoon v. State of
Bihar.............. .50, 175, 176, 597, 605, 614
Hussainara Khatoon v. Union of
I
I.M. Singh v. Borobubu Singh .................... 189
In re Luck's Settlement Trusts ...................409
In re Bell............................................................488
In re Delhi Laws Act .......................... 328, 331
In re Kerala Education Bill... ....................... 4 9
In re Masjid Shahid Gomi ...........................502
In re Polems ......................................................539
In re R.G. Films Ltd.......................................509
In re Sir Dinshaw Manakjee Patil ......... .511
In re Starlite Limited ....................................... 2 2
In re Wagon Mound ..................................... .539
Inder Singh v. Delhi Administration ...... .587
Indian Council for Environs Legal
Action v. Union of India ............. 373, 557
Indian Express Newspapers (P) ·
Ltd. v. Its Workers Union ....................... 14
Indian Handicraft Emporium v .
Union of India ..........................................494
Indian Medical Association v. V.P.
Santha ............................................... 347, 373
Indira Sawhney v. Union of
India ......................... 50, 116, 288, 347, 598
J
Jafaries v. Great Western Rly....................410
Jagush Chandra Gupta v. Kajaria .
Jalan Trading Co. v. Mill Mazdoor
Sabha...........................................................329
Javed Ahmed Pawala v. State of
Maharashtra ............................................282
 xxxvi JURISPRUDENCEA,NDLEGALTHEORY
. . . . . . .
Javed Niaz ~g v. UOI .... :.;...,......................:..,14 . • uixman l'Jayak v~State ofCmssa ...;.;....:~2s2 •·•·
. Jawaha·r v, State of We.st BengaL.:.. ;.... ~.275 . · ~ife ·Insiir.ance. Corporatio~ · of . ·• :.:..
Jay Kumar v. State of Madhya . India v; Escorts U& ..,......;....... :......... ;...509 .· ·
Pradesh........ :... ~........,......... ~ ........................ 283 ·. · Ungappa. fochanna v. State of .
Jilani V; Goveriupent of Punjab .......~....,43, 46 ..
Jogincier Kumar v:Stat~ of U. P ........ ;.;.'. .... 267
Jones v. Lipman .......,........ :.......................:... '.: 509
Jugendra Singh v~ State of U. P .................. 626
Julubhai Nanubhai Khachar v.
·State of Gujarat ...........................:........... 473
Juwar Singh v .. State of Madhya " . .
. Pradesh.................... :...................·............... 587
Jyoti .L td. v. Kanwaljit Kaur
Bhasin............................... ~ ......................... 511
K Mukesh Adwani v. State of M. P ............. 614
. Kadra Phadia v. State of Bihar ..... ;,597, 605
Kailash Chand Sharma~. State of
Rajas.t han............................ :.............. '.······· 364
Kaliamma v. Janardan.Pillai ..... ,............... 2 3 2
Kameswar Singh v. State of Bihar . 113, 350
I<anailal v. Parrnanidhi. ....... :.......,....~ ......... 340
. Kartik Biswas v. Union of hdia ............. 276
Kasambhai Abdulrehmanbhai .
Seikh v. State of Gujarat. ...................... 609
·Kendall v. Hamilton .................................... .450
Kesavananda Bharti V; Union of
· lndia ...................... 119, 367,373, 351, 353
Kesavananda Bharti v; State of
. Kerala ..................... 49, 113, 114, 174, 221,
346, 350, 363, 396, 493; 594
Keshav Mills v. Income Tax
Commissioner ............................ :: ............. 131
Khatri v. State of Bihar............. ~50, 597, 608
Khemchand v. Union of India .................... 176
King . Emperor v. 6e:noari Lal
.Sarma .........................................;................. 330
Kishore Singh Ravinder Dev v.
State of Rajasthan ................ :.................. 2 77
Krishna Kumar v. State. of
Rajasthan .................................. ,........ ~....... 3.4 3
Krishna Lal v. State of Haryana ............. 625
Krishna Singh v. Mathura ......................... 501
~rishna Swamy v. Union of India .. 132, 361
Kuenigle v. Donners Marek. ...................... 514
.Kuljeet Singh _ (alias Ranga) v.
Union of India ....... ,.................................. 282
Kunju Kunju Janardhan;rn v. State
of Andhra Pradesh ................ '. ......,......... 281
L NHRC v. State of Gujarat ........................... 617
Laqu Yashwant Singh v. Rao
JagdLc;h Singh ............................................ 436
Lansdowne v. Lansdowne
Moseley ...................................................... 226
Maharashtra ....;....:........ ;::................ ;......289
London North Easter,n .Rly. v. ' .·· .
· B e ~...~; ........;:.. :..................345
. M
M. C. Mehta V. Kamal Nath ....... ;......... 22~ 557 .. .
M. C. Mehta v. Union of India ...... ~ ............. 50,
175, 290, 528, 557,597, 59~, 614
M. H. Haskot v. State of
Maharashtra ..........:............ ;.........:605, 614
M. S. M. Sharma v. Krishna Sinha; ......... .342• · .
· f\1adanlal Fakirchand Dudhediya · Prasad Jain .........................:......................509
i v. Shri ·Shangdev Sengar Mills . .
·..Ltd .................... .._ ·...... ·....... . ...... ..............343..
Madhav RaoScindiav. UOL ...... :............ 113 ·
Madhu Mehta v.Union oflndia .........:.. ;.. 282
Madina v. State ofRajasthan: ..-.................267
Madzimbamuto v. Lardner"-Burks ... ;......;.. 44
Mahendra Nath Pathak v. State of
Assam & others ......;........ ;......·....:..:. 225, 283
Mahesh v. State ofM.P ................................ 282
Maktulv. Manbhari ............ ,............... ;........ 360 .
Maneka Gandhi v. Union of
lndia........................................... 50, .175, 176;
290~ 329, 373; 594,597
Mangal Das v. State of
Maharashtra ................. :... ;.; ..... :..............542
Manipur Administration "v. Bira
Singh ............................................................ 35 2
Manubhai v. U.C.J ................ ;........................ 323
Marchandise Transport Ltd. v.
British Transport Commission ...........497
Maula Bux v. Hafizuddin.............. ,........... .501
Mayor of Bradford v. Pickles....................543
Mc Dowell and Co. Ltd. v.
Commercial Tax Officer ..:....... ;............ .511
Med.ha Kotwal v. Union of lndia .............615
Mercer v. Denne ........ ;............................... .-..:.. 311
.Merry v . .Green ................·.............................:....418
Michael de Fraeities v. George
. Benny............................................................. 2 78
Mich.e l ·v. Volpe ............................ .-................. 416
Minerva Mill Ltd. V. Union of
India.;,~···.49, 64, 113, 114, 119, 174, 287,
346,. 350, 365, 367, 373
Mi rehouse V. Renne I ......................... :.. :........359
Mitthu v. State of Punjab ............................. 279
Mobarik Ali Ahmed v. State of
Bombay ....................................................... 217
TABLE OF CASES xxxvii
Moghul Steamship Co. v. 0
. Macgregor Gow & Co ..................537, 543 .
Olga Tellis v. Bombay Municipal .
Mohammed Ahmad Khan v.
Shahbano ................................ 117, 320, 368 Corporation - - - - -...50, 114, ·
290, 373, 594, 597
Mohammed Muima v. Union of .
. India ............................................................ 276 Ormiston v. G.w.·ruy....................................520
p
Moharibibi v. Dharamodas Ghosh ........ .467 ·
Monti v. Bames............................................... 479 P. & 0. Steam Navigation Co, v.
· .1
Montreal Tramways Co. v. . Secretary of State for India in
Leveille....................................................:.. : 4 9 8 Council...................................................... ·.395
Moore v. Bresler Ltd .................................... 522 P. Shivswamy v. State of Andhra
Mr. 'X' v. Hospital 'Z' ... :............................... 390 Pradesh ..;.....................................................597
P. T. Municchikkanna Reddy v.
Mst. Subbhani v. Nawab ............................ 314
Revarruna.....................................................494
Mudaliar v. Venkatachalam ..................... 341
P. N. B. .Finance Ltd v. Shri Sital ·
Mulchand v. Mukand .................................. 329
Mumbai Kamgar Sabha v. Abdul P.R. Khade v. State of Maharashtra .......437
Bha i ..... :................ ,....................................... 59 7 Panchu Barua v. Umesh Chandra
Goswami .~·..................................................600
. Munawar Harun Shah v. State of
Maharashtra ............................................ 282 .People v. Graves.. ;.: ............:...........................362
People's Union for Democratic ·
Munna v. State of U.P ....................... :,......... 597 .
Rights v. Police Commr., Delhi............. 176
N
People's Union for Democratic
NN. Majumdarv. State ............................... 423 Rights v. Union of India ......... 19, 50, 119,
Nadella Venkantakrishna Rao v. . 175, 290, 597
State of Andhra Pradesh ...................... 2 7 4 People's Pleasure Park Co. v.
Nak Shyam Sanshari & others v. Rohleder ......................................................511
State of U.P ................................................ 223 Philips v. Brookers Ltd ................................468
Nalinakhya Bysack v. Shyam Phool Chand Garg v. State of M.P;.-....... .580
Sunder Haldar ......................................... 344 Poulton v. London & S~W. R1y .
N~rayanan Nair v. State of Kerala ........ 364 . COII\pany.....................................................520
Narendra Kumar v. Union of Power v. Banks................................................515
India ................................................... 323, 327 Poyser v. Minors.................................. 574, 575
Narendra Nath Mukherjee v.
Pradeep Agarbatti, Ludhiana v.
State.................................................... 438, 583 State of Punjab ......................................... .345
Nathi Devi v. Radha Devi Gupta ............. 342
Pradeep Jain v. Union of India .......... :: ........ 76
National Textile Workers v. P. R. Praga Tools Corporation v.
Ramkrishnan ................ 220, 373 457, 473
· Imanual. ...................................................... 518
Neale v . Turton .............................................. 502
Prakash Cotton Mill Ltd. v. State
Neelabati Behera v. State of of Bombay ...........................................65, 253
Orissa ............................. 176, 266, 286, 613
Prakash v. State of M.P ............................... .561
Neeraja Chaoudhri v. State of Pramath Nath Mullick v: Pradyum
M.P .............................. 19, 50, 119, 175, 597 Nath Mullick .......................;.495, 497, 501
Neerja Choudhri v. State of Pramod Kumar Jaiswal v. Bibi.
Maharashtra ............................................ 290
Husan Bano ...............................................483
New Horizons v. Union of India ............. 512 Pritam Bus Ltd. v. State of Punjab ............330
New Marine Coal Co. v. Union of Pritam Das Mahant v. Siromani ·
India ............................................................ 516 Gurudwara Management
Cornrnittee ................................................... 5 0 2
Niboyat v. Niboyat... .................................... 409 Puran Singh v. Punjab State........................ 436
Nisbet v. Rayne and Bum........................... 340
Q
Noor Saba Khatoon v. Mohd
Quasim ........................................................ 118 Quinn v. Leathem ...........................................544
xxxviii JURISPRUDENCE AND LEGAL THEORY
R Ramesh\ Chandra v. State of
R. v. Ring.......................................................... 547
R. v. Edwards ...........................:...................... 417
R. v. Franklin...........::......................:.............. 359
v
R. Prince .....................~ .................................. 227
R. v. Ashwell................................................... 418
R v. Chissers................................................... 416
R. v. Ensor........................................................ 499
R. v. Harding ..........................................416, 432
R. v. Hudson .................................................... 422
- Reg v. Chessman.............................................. 548
R v. l.C. R. Haulage Ltd ..................... .521, 522
R. v. Jordan ...................................................... 538
R v. Karson.................................. :.................. 309
R v. Minister of Health............................... 345
R. v. Moore ...................................................... 416
R. v. Prince .............................................. 499, 555
R. v. Purdy .............................................. ~······ ... 424
R. v.-Riley ...................._..................................... 415
R. v. Sharpe...................................................... 545
R. v. Shepherd ................................................. 497
R. v. Stewart.................................................... 499
R. v. Tolson ............................................. 540, 545
R. C. Cooper v. Union of India .................... 64,
113, 346, 473, 514
R. K. Garg v. Union of India ...................... 595
R. R. Delwai v. Indian Overseas
Bank & others .............................................50
Raffles v. Wichelhaus .................................. 468
Raghunath Pandey v. State of Bihar ....... 331
Raghuvtr Singh v. State of Bihar.............. 176
Rahim Khan v. Khursheed .......................... 581
Raj Narayan v. Indira Gandhi .................. 584
Raja Ram v. Hon'ble Speaker. Lok
Sabha .......................................................... 293
Raja Varma v. Ravi Varma ............... 309, 311
Rajasthan Kisan Sanghatan Sangh
v. State of Rajasthan .............................. 597
Rajdeo Sharma v. State of Bihar............... 614
Rajender Chandra v. Union · S. R. Bomrnai v. Union of India. 75, 117, 359
Territory of Chandigarh .......... :.; ......... 597
Rajendra Prasad v. StateofU.P....... :........ 281
Ram Deo Chauhan & another V.
Sta~eof Assam .......................................... 283
Ram Ohan Lal v. Radhey Shyam .............. 311
Ram Jawaya Kapur v. State of.
Punjab ......................................................... 292
Ram Ratan v. StateofUttar Pradesh ...... 436
Ramesh B. Desai and others v.
Bipin Vadilal Mehta and
others .................................................. ,....... 225
\ Salem Advocates Bar Association,
Maharashtra........................... · 324
Ramji Missar v. State of Bihar ..................270
Ranbir Singh v. Uriion of India .................623
Ratan Singh V'. State of Punjab ...................61 O
Ratansi Dheerji v. Emperor ........................338
Ratlam MuI}.icipal Council v.
Vardhichand ................................... 114, 597
Raza Buland Sugar Co. v. Rampur
Municipality............................................. 327
Renuka Bai alias Rinku and
tlnother v. State of
Maharashtra ............................................ 284
Rev. Slainislaus v. State of M.P .................. 75
Richer v. Voyer...............................................430-
Riggs v. Palmer .................................................. 39
Rishnu Dev Shaw v. State of West
Bengal................................ ;......................... 281
RMOC v. Union of India ............................. 340
Robinson v. Bland .......................................... 240
Rohtas Industries v. Its Staff Union .......... 14
Rourkela Shramik Sangh v. Steel
Authority of India Ltd .......................... .3 73
Ruda! Shah v. State of Bihar: ............ .50, 175,
176, 266, 286, 346, 597, 614
Rural Litigation & Entitlement
Centre, Dehradun v. State of
U.P....... '. .................................................50, 597
Ryan v. Youngs ...............................................556
Rylands v. Flectcher...........52, 353, 367, 446,
554, 556, 557
s Shivaji Jai Singh v. State of
S. Gopal Reddy v. State of Andhra
Pradesh .......................................................343
S.O.T. v. Abraham..... ."....................................323
S. P. Gupta v. Union of India: ...................... 50,
. 116, 175, 373, 597
S. P. Mittal v. Union of India ....................... 7 5
Sabestian Hongrey v. Union of
India: ....................................................50, 175,
266, 286, 346, 597
Sacchitanand v. State of West
Bengal.......................................................... 600
Sagir Ahmad v. State of U. P ....................... l i 3
Saheb Singh v. State of M.P ....................... .542
SAHEL! v. Commissioner of Police,
Delhi ...................... 176, 267, 286, 610, 614
Sajjan Singh v. State of Punjab ................... 345
Sajjan Singh v. State of Rajasthan.118, 363,
367, 373
TABLE OF CASES
Tamil Nadu v. Union of India ........... :.260
Saloman v. Saloman & Co..................... ;.... 495,
· 505, 506, 512, 518
Samatha v. State of Andhra
Pradesh ....................................................... 119
Sanjay Dutta v. _C.B.I., Bombay ...............:.437
Santanu Roy v. Union of India ................. 512
Santosh Shankar Powar v. State of
Maharashtra ............................................ 284
Sarat Chandra v. Khagendra Nath ......... 280
Sarvan Singh v. State of Punjab ................ 586
Sarwan Singh Lamba v. Union of
India ................................................... 351, 361
Satya Narayan · Tiwari and
another v. State of Uttar
Pradesh ....................................................... 284
Satyavir Singh v. Union of India ............. 174
Sa yra bano alias Sul tania Begum V.
State of Maharashtra ............................ 366
Scott v. Shepherd ................... ,....................... 539
Shailesh Jaswantbhai v. State of
Gujarat ...................................................... ~ 286
Shankari Prasad v. Union of
India .................................................. 118, 351,
363, 365, 367, 373
Shashikantha v. Pramod C~ndra .......... .453
Shaw v. Director of Public
Prosecutions ...................:'. ........................ 596
Sheela Barse v. State of
Maharashtra .............................. 21, 50, 175
Sheela Barse v. U.0.1... ........................600, 597
Shiv Sagar v. Union of India ..................... 598
Maharashtra ............................................ 282
Simpson v. Wells............................................ 313
Singer India Ltd. v. Chander
Mohan Chaddha ..................................... 509
Siromani Gurudwara Prabandhak
Committeev. Somnath Das ................... 502
Smith v. Hughes .....................................469, 573
Society for Protection of Silent · State ol Punjab v. Ramdev Singh ..... 615, 625
Valley v. Union of India ....................... 597
Som Prakash Rakhe v. UOI ........................... 14
Somwanti v. State of Punjab ...................... 351
Sontistar Builder v. Narayan K.
Totame ........................................................... 21
South Staffordshire Water Works
Co. v. Sharman ...................... 357, 417, 421
Sowerby v. Coleman..................................... 310
Spring Meadows Hospital v. H.
Ahluwalia ................................................. 34 7
Sriniwas Mal Bairoliya v. Emperor ...... 542
xxxix
Sriniwas v. Naraya:n....................................352
St. Helen's Smelting Co. v. Tipping ...........441
St. Stephen's College v. Delhi
University.................................................... 76
Stanley v. Powell ........................ 227, 535, 556
State of Andhra Pradesh v. Challa
Ramkishna Reddy.......................... 267, 610 '
State of Andhra Pradesh v. K. V. L.
-Narsimha Rao........................................... 223
State of Andhra Pradesh v. Vijay
Kumar..........................................................623
State of Gujarat v. Acharya
Devendra Prasadji Pantle .....................541
State of Gujarat v. Hon'ble H.C. of ·
Gujarat. .............. :................................;....... 286
State of H.P. v. Ganesh Wood -
Products......................................................597
State of Haryana v. Bhajanl.jtl... .................. 22
State of Haryana v. Darshna Devi ..........25~
State of Haryana v. Janak Singh
and others ..................................................609
State of Karnataka v. Appa Babu
Ingale ........................................220, 59_~, 628
State of Kamataka v. Krishnappa .......:~.625
State of Y.:erala v. Mathai Vergese ...........343
· State of Kerala v. Thomas ................ :..........114
State of Madhya Pradesh. v.
Ramkishan Balothif··· .................... 21, 629
State of Maharashtra v. Anappa
Bandhu Kavatage.......................:····:; ..... .58 7
State of Maharashtra v. Chandra
Bhan Tale...................................................329
State of Maharashtra v. George ...............346
State of Maharashtra v. Kapoor '
Chand Kesarmal Jain .......... ,.................. 275
State of Maharashtra v. M.H. George ....542
State of Maharashtra v. Ravikant.. ......... 267
State of Mysore v. Workers of
Gold Mines ................................................253 _
State of Punjab v. Amir Chand .................~330
State of Punjab v. Ram Singh...................... 346
State of Rajasthan v. Union of India .......390
State 9f U.P. v. Ram Sagar Yadav ···········:.-267
State of Uttar Pradesh v. Chandrika .. ::'.".. 609
State of Uttar Pradesh v. Renu
Sagar Power Company ...... :~ ................. .509
State of West Bengal v. Bela
Benatjee ..................1,::······················.. ····.... 346
State of West Beng~y; Monda}
and Sons .....................................................5 71
State of West Bengal v. Subodh
Gopal. ..........................................................113
xl JURISPRUDENCE AND LEGAL THEORY
State Trading Corporation of
India v. The Commercial Tax
Officer................................................507, 513
State v. Dosso ............................................. 43, 46
Stevens v. Midland Counties Rly.
Company .............................................. ~····· 519
Subbarao v. I.T. Commr............................... 329
Subhani v. Nawab ........................................ 308
Subhash Chander v. Kishunlal &
others .......................................................... 276
Subhra Mukharjee & another v.
M / s. Bhart Coking Coal Ltd.
(BCCL) & others ...................................... 510
Sunder Jus Bhathija v. District
Collector, Pune......................................... 324
Sunil Batra v. Delhi Administration ...... 597
Supreme Court Advocates on
Record Association v. Union of
lndia ............................................................ 360
Surja Ram v. State of Rajasthan................ 283
Surya Narayan Singh v. State of
Bihar ........................................................... 597
Sushil Murmu v. State of Jharkhand ....... 283
Swamy Shriddhanand alias Murli
Manohar Mishra v. St.ate of
Kamataka ................................................. 276
Swarnalata v. Harendra Kumar .............. 577
T Vithal Das v. Rup Chand & others ......... .587
T. V. Vatheeswaran v. State of
Tamil Nadu .... .,...................... 281, 282, 613
T. K. Gopal v. State of Kamataka ........... 266
Taffvale Railway Company v.
Amalgamated Society of
Railway Servants................................... 529
Tagore v. Tagore .................................. .407, 492
Taraponda v. Mritunjoya .......................... 360
Tarun Bharat Sangh v. Union of
lndia ............................................................ 597
Tata Engineering & Locomotive
Company Ltd. v. State of Bihar .......... 507
Thippaswamy v. State of
Kamataka ................................................. 609
Thomson v. Moyse ........................................ 362
Tickner v. Heam ............................................ 432
Tilkayat Shri Gov~ndlaji
Maharaja v. State of Ra1asthan ............ 49
Tribuvan Das v. Ratilal... ........................... 351
Trimbak v. State of Madhya Pradesh .... .436
Triveniben v. State of Gujarat.. ................ 282
Tucker v. Linker ............................................ 308
Tukaram v. State of Maharashtra ........... 625
Tuttle v. Buck ................................................. 560
u
Ummilal-v. State of M.P ................................281
Union Carbide Corporation v.
Union of India .............. :.......................... .557
Union of 1.ndia v. Cynide India
Ltd .......... '. ................... ~ ................................324
Union of India v. Meerut
1
Corporation of lndia .......-.......................346
Union of India v. Raghubir Singh............ .350 JURISPRUDENCE-ITS MEANING,
United States v. American
Trucking Association ............................338 NATURE & SCOPE
Unni Krishnan v. State of A. P ................... 21,
50, 114, 594, 597
The word "jurisprudence" is derived from a Latin word jurisprudentia,
UPHSC Board v. Hari Shankar ............... .339
US v. Holrnes....................................................546 which in its widest sense, means 'knowledge of law' or skill in law. The Latin
V word 'juris' means law and "prudentia" means skill or knowledge. Thus
jurisprud.:?nce signifies knowledge of law and its application. In this sense it
Vajravellu v. Spl. Deputy Collector ........346
Varden Seth Sam v. Luckpathy ................. 3 79 covers the whole body of legal principles in the world. The history of the
concept of law reveals that jurisprudence has assumed different meanings at
Vasanth Kumar v. State of
Karnataka ................................................ 114 different times. It is therefore, difficult to attempt a singular definition of the
Vasudeo v. State of Maharashtra ......... '. .. 351 term. It has a long history of evolution beginning from classical Greek period to
Venkataswamy Naidu v. Parasram 21st Century modern jurisprudence with numerous. changes in its nature in
Das ............................................................... 341
various stages of its evolution.
Vijay Chand v. Kalipada .................. 501, 516
Vishakha v. State of Rajasthan.................. 19, During the formative era of the common law in England, the term
205, 290, 373, 597, 601, 615 'jurisprudence' was being used in a generic sense to include the study of various
Vishnu Agencies (P) Ltd. v. C.T.O.............. 14 facets of law. However, in the early decades of the 19th century with the
theories propounded by Bentham and his disciple Austin, the term
w 'jurisprudence' acquired a definite meaning. Bentham differentiated between
Waghela v. Sekh Masludin ........................ .379 study of law as 'it is' and 'as it ought to be' and called them 'expositorial' and
Walker v. Great North Rly. Co .................498 'censorial' jurisprudence respectively. Later, Austin concerned himself mainly
Walkis v. Godwin ......................................... 341
with the formal analysis of the English law and its related concepts, which
Waman Rao v. Union of India .................... 49,
113, 119, 346 still continues to be the basic contents of English jurisprudence. .
Waverly Jute Mills v. Raymond & Co ..... 342
It is well known that 'law' being a dynamic concept; it changes with the
West Rand Central Gold Mining evolution of society under different socio-economic and political conditions. The
Co.v. R........................................................ 307
rapid changes in modern times have given rise to new problems and issues
Williams v. Willia~s ................................... .498
which are to be tackled by law through pragmatic approach in interpreting
Willis v. Baddeley ......................................... 352
Workers of Rohtas Industries v.
law. While doing so, the modern jurisprudence has to take into consideration
the social ethos and changing patterns of the society which immensely widens
Rohtas Industries ................................... .457
Workmen of Associated Rubber its scope as a science of law.
Industry Ltd. v. The
Associated Rubber Industry Jurisprudence-Its meaning:
Ltd. Bhavnagar .............................. 512, 513
Jurisprudence, in its limited sense, means elucidation of the gerteral
y
principles upon which actual rules of law are based. It is concerned with rules of
Yogendra Morarji v. State of external conduct which persons are constrained to obey. Therefore,
Gujarat. .......................................................542 etymologically jurisprudence is that science which imparts to us knowledge
Yogendra Nath Naskar v. about "law". The 'law' of course is a term of various connotations; here we use
Commissioner of Income Tax .............. .501
the term 'law' in its abstract sense, that is to say, not in the sense of concrete
Young v. Bristol Aeroplane Co.
Ltd ................................................................354 statues but in the sense of principles underlying law. Thus, for example, there
are various branches of law prevalent in a modem State such as contract, tort,
2 JURISPRUDENCE AND LEGAL THEORY
crime, property, trusts, companies, labour relations, insolvency etc. and in
jurisprudence we have to study the basic principles of each of these branches
and we are not con:cemed with detailed rules qf these laws. These have to be
studied in detail when we study those branches of law separately. This may be
illustrated further by the example of law of crimes. Jurisprudence ex~es the
general principles of penal liability but it does i:tot attempt t? detail out the
essentials of each offence. In short, jurisprudence may be considered to be the
study and systematic arrangement of the general principles of law.
In yet another sense, jurisprudence may be regarded as the philosophy of
law dealing with the nature and function of law._ T~is ~pproach !o
jurisprudence is receiving primacy in modem times keepmg m view the rapid
social changes taking place all around the world ~ recei:it de~ad~s. This ha s
1 unjust". It connotes more or less the same meaning as the term 'Dharma' under
eventually given rise to what is now termed as the f~cb~nal JUnsprudence.
The thrust being on inter-relationship between law and Justice.
The Indian jurisprudence owes its origin to the ancient concept of D~arma
which was considered to be best way to discipline one's mind. The practice of
Dharma enabled citizens to inculcate a sense of discipline in conducting
themselves in the society. This eventually brought about peace and. prosp~rity
in the society. However, with the march of time and progress of In~ian society,
the concept of law and therefore, of jurisprudence has changed radically. India
is now a Sovereign, Socialist, Secular, Democratic Republic.I Democracy pre-
supposes government of the people, by the p~ople and for t~e _p~ople, and,
therefore, citizens are expected to be self-restramed and self-disciplined. They
should also be conscious of their rights and duties. 'Law' plays a significant role
in sustaining a stable social order. India being a welfare State, a new lnd~an.
jurisprudence needs to be developed so as to ensure th~t la~ becomes an effective
instrument of social change _in various facets of Indian hfe. It has to play the
functional role of harmonizing the ·conflicting interests of individuals in the
society by maintaining an equilibrium between the freedom of individuals on
the one hand and social welfare on the other.
The study of jurisprudence as a separate branch of knowledge starte~ with
the Romans. For them, jurisprudence meant 'knowledge of law'. But m the
modem sense this meaning is too vague and general. Though the Romans in
practice never confused law with morality or religion, in theory this distinct~on
is hardly found to be in existence in.earlier times. The definitio~ and conc~phon
of jurisprudence by Roman jurists may af pear to be ~a?'1e ~r ~nadequate m the
modem sense of the term, but the credit of recogmsmg JUnsprudence as an
independent branch of legal sciencP. for the first time goes to Roma~ leg~l
philosophers, which eventually paved way to development of the subJect m
the present form.
As the time advanced, there was a radical change in social conditions and
human behaviour which resulted in shift of trend and jurisprudence came to be
envisaged in a broader perspective.
1. Preamble to the Constitution of India (42nd Amendment, 1976) w.e.f. 3-I-1977.
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE 3
Definition of Jurisprudence :
The term 'jurisprudence' has meant different things at different times. The
variati~n is d~e to di~ferent methods ?f inquiry and approach to the study of
the subject. It 1s for this reason that Julms Stone has described jurisprudence as
"the lawyer's extraversion" meaning thereby that jurisprudence involves
~xaminati?n _of _precepts, ideals and techniques of the law by lawyer's in the
light of disciplines other than the law.I The definition of jurisprudence as
given by some of the eminent Jurists may be stated as follows : -
Ulpian.-Jurisprudence, in its etymological sense means 'knowledge of
law'. Ulpian, the celebrated Roman jurist defined jurisprudence as "the
observation of things human and divine, the knowledge of the just and the
the Hindu jurisprudence and covers the province of religion, ethics and
philosophy. Thus this definition is too broad and has a wider connotation.
Jaimini has defined Dharnza as "that which is signified by a command,
and leads to man's material and spiritual salvation. Considered from this
stan~point, the modern jurisprudence has a much narrower coverage and is
coi:ifined to ~hat Hind~ jurists described as Vyavahara. According to
YaJnava_lkya Vyavahara .' means those rules which determine the judicial
proceedmg or controversies. Thus in this sense jurisprudence deals with the
principles underlying the rules which applied in deciding the .legal
controversies judicially. 2
Cicero defines jurisprudence as the philosophical aspect of knowledge of
law.
Gray.-Professor Gray has also defined jurisprudence more or less in the
same manner. He opined that "jurisprudence is the science of law, the statement
and systematic arrangement of the rules followed by the courts and the
principles involved in those rules." Thus, jurisprudence deals with that kind if
law which consists of rules enforced by courts while administering justice. In
other words, the laws of the jurist deal with man and seek to regulate external
human conduct in the society. It does not concern itself with the inner beliefs of
man imbib_ed in religious laws, which derive their authority from super human
source which we call as 'God'. The sanction for their enforcement is spiritual
reward or c~rse according to man's deeds.
, Salmond.-Salmond defines jurisprudence as the "science of the first
prin~iples of th~ civil law". TI1t1s, he points out that jurisprudence deals with a
particular species of law, namely, civil law or the law of the State. The civil
la~ consist~ of rules applied by ·courts in the administration of justice. He agrees
with _Gray m upholding_ that jurisprudence is concerned with only jurist's law
and is not concerned with the laws of theologian and moralist although they
also govern the conduct of man in society. The juristic laws regulate external
human conduct only and not the inner beliefs of man. They are enforced by courts
1. Julius Stone: Some Reflections in Jurisprudence. p. 2.
2. Yajnavalkya Smriti Chapter IV, 55.
4 JURISPRUDENCE AND LEGAL TIIEORY
i
of judicial tribunals and carry with them sa~ctions ranging from capital
punishment to a fine or even a mere admonition; The certainty of the sanctions
and the existence of a determinate authority fof enforcement distinguishes
jurist's law from that of the moralist. 1 Salmond supports Holland and Austin in
holding that jurisprudence is a science, that is, a·systematic study of basic
principles of individual specific legal systems. He classified jurisprudence in
'generic' and 'specific' sense. The former includes the entire body of legal
doctrines whereas the latter means only a particular branch of such doctrines.
According to him, specific sense alone is the proper jurisprudence because it
deals with general principles of a particular legal system.
Salmond observed that as the 'science,of law' there may be three kinds of
jurisprudence :
(1) Expository or systematic j~risprudence, which deals with the
contents of an actual legal system as existing at any time whether
past or present.
(2) Legal history, which is concerned with the legal system in its
process of historical development.
(3) The science of legislation, the purpose of which is to set forth law
as it ought to be. It deals with the ideal future of the legal system
and the purpose which it may serve.
Dr. Allen has objected to the Salmond's definition on the ground that he
has limited the scope of jurisprudence to a particular legal system. It is rather
too narrow a view.
Hobbes and Blackstone.-In England, the earliest treatment of the subject
of jurisprudence is to be found in Hobbes' book Elementiae Philosophiae though
his concepts relating to natural law, sovereignty and political government were
basically aimed to support the monarchy. These propositions paved way to
subsequent development of historical jurisprudence. Thereafter, Blackstone, an
eminent jurist of 18th century, made substantial contribution to the study of the
science of law, but like his predecessors, he confused law with 'justice' or 'what
the law ought to be'. Later on, Bentham and Austin gave jurisprudence· a
concrete shape through their pragmatic approach to law and its related
concepts.
John Austin.-Austin2 calls jurisprudence as the "philosophy of positive
law". He was the first jurist to make jurisprudence as a science. By the term
"positive law" he meant 'jus positivum', that is law laid down by a political
superior for commanding obedience from his subjects. Thus LC is identical with
'civil law' of Salmond. Austin pointed out that science of law is concerned with
law as it is and not as it ought to be, which he considers as the science of
legislation. In order to determine the meaning and scope of jurisprudence, Austin
distinguishes law from those of customs and ethical abstract ideas. He
1. Subbarao G.C.V.: Jurisprudence & Legal Theory (9th ed. Repri~t 1991) p. 6.
2. John Austin (1790-1850). He is often described as the father of Modem Jurisprudence.
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE 5
rr~ferred to divide jurisprudence into two parts, namely, (1) General
Jurisprudence and (2) Particular jurisprudence.
By "General jurisprudence", 1 he meant 'the science concerned with
exp?sition of the P?1'ciples ~f nations which are common to all the systems of
law whereas. ~articular Jurisprudence, consisted of the science of any such
system _of pos1t~ve law as n_o~ obtains or once actually obtained in specifically
dete~n:imed nation. H~ ·clarifies that particular jurisprudence is concerned with
specific State or national law or particular area of such State law. For
exampl~, the study of the Indian Legal system itself or property law of India is·
the subJect-matter of particular jurisprudence.
. Th~s classificatio1:1 by Austin has been criticised as being unscientific and
~m:practicable. Profes~or Holland argues that it is vague to think of general
Jurisprudence. Accordmg to him, science is science and it cannot be classified as
general or particular.
. 'Criticising Austin's concept of 'general jurisprudence', Buckland observed
t~~t even those who professed this view including Austin himself did not
aahere to it in practice. '
. . Dias and Hughes ~ha_~~cteris_ed Austin's definition of general
JUnsp~dence as full of ambiguities as it lacked amplitude and maturity in the
prevailing legal system. w
Hol!and.-Sir ~omas ~rskine Holland defines jurisprudence as 'the
formal scienc~ of positive_ la~. Stammler also defines jurisprudence in similar
tei:ms: Accordmg to them JUnsprudence should only concern itself with the basic
pr~c.1ples or concepts underlying any natural system of law. Holland defines
pos~~ve law as~ general rul~ o~ external human action enforced by a sovereign
p~hhcal authority. He calls JUnsprudence as a 'formal' science as it deals not
with conc~ete details but. only with the fundamental principles underlying
them. To 1llustrat:, there are fundamental principles in concepts relating to
pr~perty, posses~1on, contract etc. in all the well-developed legal systems.
Jurisprudence harmonises these separate ideas under a basic concept and frames
out a ~che~e of t~eir pur_pos:s and evolves methods and principles for their
retent~on without mterfermg m anyway with the working of specific rules in
a~y given legal system. He, therefore, rightly observed, "Jurisprudence deals
with the human relations which are governed by rules of law rather than the
material rules themselves". Since jurisprudence deals only in a "formal or
abstra~t way with those relations of mankind which are generally recognised
as havmg legal consequences'',2 it is not a material science but rather a formal
science of law.
_Sir Holla1:1d _further stated .that jurisprudence is not a science of legal
relations a priori, as they might have been, or should have been, it is
obstructed_ a posteriorari from such relations as have been clothed with a legal
character m actual systems of law which have been actually imposed as
1. Austin: Lectures on Jurisprudence (1907) pp. 47-48.
2. Holland : Elements of Jurisprudence (3rd ed.) p. 12.

6 JURISPRUDENCE AND LEGAL TI-IEORY
\
I
positive law. It is thus a progressive science keeping pace with the movements
of development of society and the contemporary law. Thus he concludes that
jurisprudence is a science which is formal or analytical, rather than being a
material one. It is the science of 'actual or positive law', and, therefore, it
would be incorrect to divide jurisprudence into 'general' and 'particular' or
'philosophical' and 'historical'. In other words, it is 11-ot divisible.1
Professor Gray and Dr. Jenks, however, object to the Holland's description
of jurisprudence as a/formal science'. They pointed out that the real relation of
jurisprudence to law depends not upon what law is treated, but how law is
treated. Gray further stated that in fact jurisprudence is no more formal science
than physiology. Just as bones, muscles and nerves are the subject-matter of
physiology, so are the acts and forbearances of men and the events which
happen to them, the subject-matter of jutj.sprudence and physiology could as
well dispense with the former as jurisprudence with the latter. 2
Criticising Holland's definition of jurisprudence as 'formal science of law',
Dr. · Edward Jenks mmarked that jurisprudence cannot be said to be purely
formal science beca\'lSe it cannot afford to ignore the social forces which give
shape to law. According to him, to say that jurisprudence is concerned with only
forms, is to derogate it from the rank of science to that of a craft. 3 It is,
however, submitted that Dr. Jenk's criticism is not well founded as he seems to
confµse a 'formal science' with the 'formalistic manner' which jurisprudence
adopts iri. dealiftg with the subject. To say that jurisprudenre -deal&<-only,with-
forms is to take rather a very _narr0.1'\7_.J_~~ of the subject. A jurist is not content
with a mere form of law, nor does he look upon positive law as the highest kind
of law, but he goes deeper into its meaning and tries to discover the social forces
moulding it. In other words, his approach to subject is not merely formalistic but
it is sociological as well. Thus, jurisprudence is a science which concerns itself
only with the form which conditions social life for maintaining human
relationships in society and ·to which society attaches legal significance. It is
in this sense that jurisprudence is necessarily a formal science as asserted by
Holland.
Dr. Allen.-The noted English jurist Dr. Allen has defined jurisprudence
as 'the scientific synthesis of the essential principles of law'. Though this
definition may seem to be abstract at a glance, it surely takes notice of the
widening scope of law in its various facets.
Keeton.-According to Keeton ;;jurisprudence is the study and scientific
synthesis of the general principles of law" 4 The definition seeks to explain the
distinction between public and private laws.
H.L.A. Hart.-The, twentieth century analytical jurisprudence has
emerged as a d"eaction against the rigid positivism of the 19th century
1. Holland T. E.: The Elements of Jurisprudence, 13th Edition, 2010, pp. 11-12.
2. Gray : Nature & Sources of Law (2nd ed.) p . 147.
3. Jenks : The New Jurisprudence p. 140.
" - · ~ton C.G.: Elementary Principles of Jurisprudence p . 1-2.
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE 7
Austinian legal philosophy. Among its prominent propounders H.L.A. Hart's
name deserves special mention in view of his significant contribution to the
development of jurisprudence embracing all moral and social principles and
value and other non-legal elements which hitherto remained excluded from
the purview of the study of the subject. While Austin considered command,
sanction and sovereign as the three essential constituents of the nature of law
which formed the science of jurisprudence, Hart believed that union of primary
and secondary rules explains the nature of law and provides 'Key' to science of
jurisprudence. By primary rules he meant rules which impose duty while
secondary rules confer powers which provide for creation or variation of duties
by removing defects of the primary rules. 1 He further opined that both these
kinds of rules contain a minimum element of natural law i.e. law and morals
which every legal system must necessarily contain. Thus Hart viewed
jurisprudence as a science of law in a broader perspective by co-relating law and
morality whereas Austin had failed to do. ·
Roscoe Pound.-According to Pound, jurisprudence is "the science of law
using the term 'law' in the juridical sense, as denoting the body of principles
recognised or enforced by public and regular tribunals in the administration of
justice". He emphasised that there is an inevitable co-relationship between
jurisprudence and other social sciences. Thus he opined that "jurisprudence,
ethics, economics, politics and sociology are distinct enough as the core, but
shade out into each other". Pound suggested a separate branch of sociological
jurisprudence, which is concerned with the influence of law on society at large.
He firmly believed that behind every issue, there is something social;
therefore, in the study of jurisprudence, the emphasis should be on the
relationship between law and society.
G. W. Paton holds that jurisprudence has two main aspects. It treats law
as an abstract body of rules and secondly it's a social machinery for securing
order in the community. It deals with study of law in action. The main function
of law should be to create order in society so as to resolve disputes and ensure
peaceful transformation of the society which is constantly heading towards
progress of mankind. Thus, Paton strongly believed that jurisprudence is a_
functional study of the concepts which legal systems develop and it seeks to
protect the social interests.
Julious Stone.-Julious Stone represents the lawyers legal philosophy of
19th century which marked a new era in juristic thinking. He termed
jurisprudence as lawyer's extra version. That is, the lawyers interpret law in
the light of knowledge derived from other disciplines Law has to function and
co-exist within the _parameters of social dynamics in keeping with human
development and contemporary societal norms. It cannot be studied in isolation,
being an integral part of society. He considers knowledge of social, economic and
political problems essential for lawyers and Judges without which they cannot
handle the legal problems of the society .2
1. Hart H.L.A.: The Concept of Law (1961) p. 91.
2. Julious Stone: Province and Function of Law (1946) p. 25.
8 JURISPRUDENCE AND LEGAL TI--IEORY
Julious Stone preferred to divide ju·risprud~nce in three broad catego_ries,
namely:-
(i) Analytical Jurisprudence (law and logic) ;\
(ii) Ethical Jurisprudence (i.e. theories of justice)
(iii) Functional Jurisprudence (i.e. sociological approach to law dealing
with law and society.
Stone's definition of jurisprudence has been supported by Justice Oliver W.
Holmes and Justice Brandies.
Some Other Jurist's View:
Arnold has defined jurisprudence, "as the shining but unfulfilled dream of
a world governed by reason. For some, it lies buried in a system, the details
of which they do not know. For some, familiar with the details of the system,
it lies in the depth of an unreal literature. For some, familiar with its
literature, it lies in the hope of future enlightenment. For all, it is just around
the comer".
According to Radcliffe, "jurisprudence is a part of history, a part of
economics and sociology, a part of ethics and a philosophy of life". Thus it is an
amalgam of a number of other disciplines inter-woven together for the common
good of the society.
E. W. Patterson defined jurisprudence as a body of ordered knowledge
which deals with a particular species of law.1 · law, which they gradually introduced in India.
In the ultimate analysis Holland's definition of jurisprudence as the
formal science of positive law seems to be more acceptable. The term 'positive
law' is concerned with an inquiry into the social relations regulated by the rules
of law which are imposed by the State and enforced by the law-courts.
Jurisprudence is a 'formal' science because it only deals with the purposes,
methods and ideas of the legal system -and not with its concrete details. The
latter, which deals only with the concrete detail, constitutes the subject matter
of a material science which jurisprudence is certainly not.2
Dr. M. J. Sethna's definition of Jurisprudence :
Dr. Sethna has defined jurisprudence as the study of fundamental legal
principles including their philosophical, historical and sociological bases and
art analysis of legal concepts. Thus he adopts a synthetic approach to study of
jurisprudence, for he believes any knowledge is a synthetic whole and cannot be
divided into water-tight compartments. Dr. Sethn~ refers to the definition of
civil law as "all that body of principles, decisions and enactments made,
passed or approved by the legally constituted authorities or agencies in a State
for regulating rights, duties and liabilities and enforced through the
mechanism of judicial process, securing obedience to. the sovereign authority in
1. Patterson E. W. : Jurisprudence (1st ed.) 1.
" Jenks : The New Jurisprudence p. 140.
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE 9
the State. He_ advocated a synthetic study of different branches .of
jurisprudence, namely, analytical, historical, philosophical, sociological etc.
to be taken together as a whole.
The modem writers generally agree that the term 'jurisprudence' does not
merely connote a knowledge of law, but it covers a field much wider than this.
As Paton rightly pointed out, jurisprudence is a particular method of study, not
of the law of any one country but of the general notion of law itself.
Approach to the study of Jurisprudence :
Jurisprudence, in the modem sense of the term owes its origin to the
western legal thoughts. It does not, however, mean that the concept of
jurisprudence· was altogether unknown to the ancient Indian legal philosophy.
In fact the Hindu jurisprudence of ancient India which was based on 'Dharma',
contained principles and moral precepts which aimed at ensuring the welfare
of the society by regulating human conduct. Law was essentially an instrument
of social order. It ought to act in conjunction and in harmony and not in conflict,
isolation or contrary to reason. However, subsequent political upheavals a·nd
foreign intervention narrowed the smooth development of ancient Hindu
jurisprudence because many of the concepts of Indian legal thought did not
match favourably to the changed situation. With the Moghul rule in India
followed by the subsequent British colonial rule, the ancient legal system
completely lost its moorings and the British rulers named indigenous law as the
'personal laws of 'Gentoos'. They came here with a well-developed system of
· In the present era of globalisation, and liberalisation, greater emphasis is
on universalisation of laws since development of science and technology has
annihilated time and space and there is gradual transformation of local values
into the universal code of conduct. The proposal for a universal code of criminal
law and prison laws is an step in this direction. Thus the study of jurisprudence
in modem times needs to be pursued in a broader perspective so as to give it a
global coverage.
The traditional approach to the study of jurisprudence through
analytical, historical, ethical and sociological methods has now been
substituted by empirical and a priori methods. The former proceeds from facts
to generalisation while the latter starts with generalisation in the light of
which facts are analysed and examined. Both these approaches have helped
the development of law on scientific lines. The comparative method derives its
material from other contemporary legal systems prevalent in different
societies. The major thrust is on the critical analysis of various legal concepts
from which conclusions may be drawn for the perfection of the legal system.
Jurisprudence Whether a Science ?
The contexual meaning and contents of jurisprudence show that it involves
an analysis and exposition of law in its various facets. Thus it is a systematic
study of-the law as expounded by Austin and his successors. Such a study of law
 JURISPRUDENCE AND LEGAL THEORY
totally excludes customary practices and social 01\moral vagaries and fantacies
I JURISPRUDENCE-ITS MEANING, NATURE & SCOPE
which may dilute the contents of law. This is \the reason why positivists
insisted that law is a command of the sovereign so as to make legal system
formal, logical, and empirical, quite unaffected by moral values or societal
ethos. This methodology and approach to the study of law has brought it
nearer to be reckoned as science.
Th< rejection of metaphysical considerations and rise of positivism with
the fading influence of natural law philosophy by the close of 18th century and
emergence of Benthamite principle of hedonism, namely, the doctrine of 'Pain
and Pleasure', ushered an era of scientific and critical approach to the study of
jurisprudence. Moreover, the rapid development of physical and biological
science during 19th century and their method of study based on empirical,
investigative and analytical approach also had its impact on approach to
study of jurisprudence. August Compte /(1798-1857), the father of modem
positivism, confined his analysis to the observation of facts rejecting
completely the hypothetical considerations in the study of jurisprudence and
legal theory. As a positivist, he emphasised on the need for the study of
jurisprudence based on concrete observations and analysis of ascertainable facts
which meant examining man-made law which has actually been laid down by
men for men as distinct from law as it ought to be. 1
. The beginning of 20th century brought in its wake, a new approach to the
study of law in relation to society which treats law as a 'social engineering',
that is, an instrument of social change. European jurists like lliering, Ehrlich,
Max Weber and American legal thinkers such as Roscoe Pound and 0. W.
Holmes and others gave new dimensions to law as an instrument of social
change. They emphasised that law has to function within the parameters of
social dynamics and needs of the society. Thus the function of law is to
supplement social sciences. It is in this context that G. W. Paton suggests that
study of jurisprudence should be integrative and synthetic and purposive. 2 This
view finds further support from Julius Stone who calls jurisprudence as lawyers'
extraversion, which means that lawyers' examination of the precepts, ideals,
and techniques of law should proceed in the light of present knowledge in
disciplines other than law. 3 Thus Stone emphasises on inter-disciplinary
approach to the study a law.
These propositions amply justify that jurisprudence can rightly be treated
as a- science like any other social science.
Scope of Jurisprudence:
As stated earlier, the scope of jurisprudence has widened considerably
over the years. It is generally believed that the scope of jurisprudence cannot be
circumscribed. Broadly speaking, jurisprudence includes all concepts of human
order and human conduct in State and society. In other words, anything that
1. Dhyani S. N. Dr. : Fundamental of Jurisprudence (?nd ed. 1997) p. 12.
2. Paton G. W. : A Text Book of Jurisprudence (3rd ed. 1%4) p. 1.
3. Julius Stone: Province and Function of Law {1947) p. 25.
concerns order in the State and society will be withii:1 the domain _of
jurisprudence. Commenting on the scope of jurisprudenc~, Jus~c~ P. B. M~e11ee
observed, "Jurisprudence is both an intellectual and 1deahshc a~~trachon_ as
well as behavioural study of man in society. It includes pohhcal, social,
economic and cultural ideas. It covers the study of man in re~ati_on to State ~nd
society." Radcliffe also held a similar view and stated that Junspru~ence ts a
part of history, a part of economics and sociology, a part of ethics and a
philosophy of life. 1
Jurisprudence involves certain types of investigation~ into law, an
investigation of an abstract, general and theoreticalnature whic~ seeks to l_ay
bare the essential principles of law and legal systems. Elaborating t~e pomt
further, Salmond observed' "in jurisprudence we are not concerned to denve rules
from authority and apply them to problem; we are concerned rather to reflect on
the nature of legal rules, on the underlying meaning of le?a~ co1:1cepts and on the
essential features of legal system". 2 This makes the distinction between law
and jurisprudence amply clear. Thus whereas in law we l?ok for the rule
relevant to the given situation, in jurisprudence we as~, wha! 1s for a rule to be
legal rule, and what distinguishes law from morahty; etiquette and ot_her
related phenomenon. It, therefore, follows that jurisprudence comprises
philosophy of law artd its object is not to discover new rule but to reflect on the
rules already known .
·x,·~9~tents of Jurisprudence: . . · . .
· There are divergent views regarding the exact contents of JUnsprudence.
But it has been generally accepted that sources, legal concepts and legal theory
constitute the main premises of the study of jurisprudence.
(i) Sources.-It is well known that the basic features of a legal syste~ are
mainly to be found in its authoritative sources and the nature :311d workmg of
the legal authority behind thes_e sources. Therefore, they obviously f~rm _the
content of jurisprudence. Under this head matters such as custom, legislation,
precedent as a source of law, pros ~nd cons_ of c?dif~cation of law~, ~eth~s of
judicial interpretation and reasonmg, an mqmry mto the admm1stration of
justice etc., are included for study.
(ii) Legal concepts.-Another area which concerns jurisJ:>rudence is. the
analysis of legal concepts such rights, prop~rty, ownership, poss~ss10n,
obligations, acts, negligence, legal personality and the related issues.
Although all these conceP.tS are equally studied in the ordinary branches of
law, but since each of th:m functions in several different branches of law,
jurisprudence tries to bring out a more comprehensive picture of each concept as a
whole. The study of these abstract legal concepts furnishes a background for
better understanding of law in its various forms.
(iii) Legal Theory .-Besides the sources and the fo_rces operating beh~d
them and various legal concepts, legal theory also constitutes one of the mam
1. Radcliffe : The Law And its Compass p. 92.
2. Fitzgerald P. J.: Salmond 011 Jurisprudence (12th ed. 1966) p. 1.

12 JURISPRUDENCE AND LEGAL 1HEORY
components of jurisprudence. Legal theory is co:rl<:emed with law as it exists and
functions in the society, and manner in which faw is created and enforced as
also the influence of social opinion and law on each other. Thus, legal theory
seeks to co-relate law with other disciplines such as religion, philosophy:,
ethics, politics etc. and pursue its study in a wider socio-legal perspective. It is
therefore, necessary that while analysing legal concepts, an effort should also
be made to present them in the background of social developments and changing
economic and political attitudes. 1
As to the nature of legal theory, it must be stated that it relates to
philosophy and political theory. As pointed out by Dr. Friedmann, "all
systematic thinking about legal theory is linked at one end with philosophy
and at the other end, with political theory. Sometimes the starting point is
philosophy and political ideology plays a secondary part-as in the theories
of the German classical metaphysicians pr the Neo-Kantians. Sometimes the
starting point is political ideology, as in legal theories of socialism or fascism.
Sometimes theory of knowledge and political · ideology are welded into one
coherent system, where the respective shares of the two are not easy to
disentangle, as in the scholastic system or in Hegal's philosophy. But all legal
theory must contain elements of philosophy-man's reflection on his position in
the universe and gain its colour and specific content from political theory--the
ideas entertained on the best form of society. The end of law is based on
conceptions of ma..,, both as a thinking individual and a political being." 2
Interpretative Jurisprudence
Ronald Dworkin who was a critique of law and adjudication in terms of
positivism propounded interpretative jurisprudence and held_ that the
interpretation which suits best in the circumstances of the case should be taken
into consideration in deciding a case. He explained that the law should be
interpreted in its fulle_st form as against the positivism view of restricting it to
what "law is" discarding completely as to what the law was 'was' or what it
'ought' to be. Thus positivism approach of the law with a narrow ·angle
confining itself strictly to the language of the law used by tne Sovereign. This
assertion of Ronald Dworkin regarding the need for giving a wider
interpretation to the law holds true particularly when the Courts are deciding
the cases dealing with award of death penalty, juvenile justice or release of
offenders on Probation etc. Perhaps, the interpretation of Art. 21 of the
Constitution in its wider perspective provides the best illustration of
importance and utility of interpretative jurisprudence in modem times. There
have been a number of cases wherein the Supreme Court has given exhaustive
interpretation to law and even included "right to sound sleep" as a part of right
to life. 3
Ronald Dworkin's theory of interpretative jurisprudence is based more on
the need for pragmatic approach to the interpretation of law rather than
1. Fitzgerald P. J.: Salmond on Jurisprudence (12th ed. 1966) p. 3.
2. Friedmann. W. : Legal Theory (5th ed.) p. 3.
3. Baba Ramdev's case, 2012.
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE 13
criticism of Austin's positivism law should be interpreted .keeping in the
· totality of facts and circumstances of the case rather than stnct letters of the
law.
Jurisprudence And Legal Theory Distinguished: .
Le al theory comprises philosophy of law and, the~efore, 1t. seeks to
examin: and analyse the philosophical content of law. As rightly pointed out
b Fitzgerald, "jurisprudence covers a wider _field of study ~s c~mpared to legal
t?eory for the former involves an investigation of law which 1s of an abs!ract, _
general and theoritical nature while legal theory _on the other htnf1 ~ a~
attempt to answer what is law in order to clarify the most o a ega _
concepts." 1 . .
Thus it would be seen that legal theory is only one aspect of Jt1nsprudence
which is evaluative and philosophical study of law in. ter~s. of ends, v~lu~s
and oods which law ought to sub-serve. It concerns with h~mg law w~ich is
base~ on felt-needs or social forces and rejects purely techmcal, analytical or
conceptual perception of law.
It must be stated that Dr. Friedmann was perhaps _the first juris_t _who
coined the term 'legal theory' in 1945. He refused to accept _the trad1h~nal
British concept of j"urisprudence which was based on sheer logic of s~ve~e1gn,
d and coercion devoid of any moral or social values. Later, t e t eory
;=::;opularity due to contribution o_f great modern jurists like H. L.A. ~:rt,
Lon Fuller, Wolff, Dworkin~- Radbrauch, Robe~t Paul an~ others: e~
su . ested that legal theory is not concerned with th~ enhr~ province o
jur~!prudence but relates only to the analysis of philosophical notion of law.
Jurisprudence is a lawyer's extra version ·. .
According to Julius Stone the study of jurisprudence should be ~n~e~ratt~e
· l ur osive keeping in view the need for human~st1c JUS ice
a~d s~t~et;::/a~~ ~usi law. He therefore firmly believed that "junsprudenc~
!s r~:!yer~' extra version. It is the lawyers examination of kprec~p~s a~n
techniques of the law in,}he light derived from present now e ge
disciplines other than law. . .
. Oliver Wendell Holmes explained jurisprudence ~s having ufnlh1m1ted
d· to the changing needs o uman
possibilities of developing law acco.r ingl .- Tl law therefore has to be
· d t mporary knowledge exp os10n. 1e , ,
:~~~~~d aa: a~oi:t!gral part of entire field of social sciences. Blindthadhereni:e :~
. oach would not serve e purp
the letter of law adopting a narrow appr . blems that confront
society as it requires readiness for adaptat10n to new pro
society. He observed:
"The law embodies the story of a nation's development thro~gh man~
centuries and it cannot be dehalt wt~th
corollaries of a book of mat ema ics. n
at
i~;~;rtati;i~~o~l~~~; ~%0:~ i~nis
1. Fitzgerald P. J. : Salmond on Jurisprudence (1966) P· 4.
2. Julius Stone: Province & Fw1etion of Law (1947) P· 25.
 14 JURISPRUDENCE AND LEGAL THEORY
necessary to know what it has been, and wha\ it intends to become. We must
alternatively consider history and other existirlg theories of legislation.''!
Like W. Holmes, Sir Federick Pollock, Brandies, Cardozo, Frank, also
suggested the study of law in its social context. S'i~ce Judges and lawyers who
are well acquainted with extra legal aspects of law and its relation with
sociology, economics, psychology and political theory, they are in a better
position to interpret law in a purposive manner distinguishing 'law in books'
from 'law in action'. A lawyer should not be a mere-legal technician knowing
legal texts and procedure but he should be a social activist so that law can give
healing touches to society and ensure implementation of policies that underline
a particular legislation.
The 'extra-legal version' approach to as an instrument of social change
and reforms has found favour with the Judges of the Supreme Court, notably,
Justice S. N. Gajendragadkar, Justice Y. V. Cha:ndrachud, Justice Chagla, Justice
P.N. Bhagwati, Justice Krishna Iyer, and others.
Adopting a pragmatic to the application of law, Justice Y. V.
Chand_rachud in Vishnu Agencies (P) Ltd. v. C.T.O. 2 observed that "legal
fraternity should n6t construe the provisions of the Constitution in a narrow and
pedantic sense, instead, a broad and liberal spirit should inspire those whose
duty it is to interpret law. A constitution is a living and organic thing which of
all instruments has the greatest claim to be construed ut res magis valeat quam
perear-The lawyers and judges ought to extend the constitutional provisions
for elimination of poverty, social inequalities and economic injustices".
Disapproving rigid and mechanical approach to industrial law and
legislation, Justice S. N. Gajendragadkar, in constitutional disputes; the
fundamental rights are to be weighed against the public good whereas in
industrial disputes the employer's statutory right of freedom of contract.. .....
has to be weighed against the valid requirements of social justice, and in each
case, reasonable adjustment has to be made".
Mr. Justice Krishna Iyer, a former Judge of the Suprem,~ Court of India,
who has a unique distinction of sensitizing legal community on need for a
pragmatic approach to law expounded the philosophy of jurisprudence as a
lawyer's extra version in a number of cases. 3 He firmly believed that "the
problems of law are, at bottom, projections of life .......... The roots of
jurisprudence lie in the soil of society's urges and the bloom in the nourishment
from the humanity it serves". For him, law is a pragmatic instrument of social
order.
He observed that judges and lawyers can discharge their respective roles
only when they have acquired sufficient knowledge, methodology and
1. 0. W. Holmes: The Common Law, p. 1 (Boston, 1881).
2. AIR 1978 SC 449.
3. R~htas lndu:tries v. Its Staff Union, AIR 1976 SC 425; Indian Express Newspapers (P) ltd. v. Its
Workers Union. AIR 1979 SC 137; Basti Sugar Mills Co _ Ltd. v. State of U.P., AIR 1979 SC 262;,
Javed Niaz Beg v. UOI, AfR 1981 SC 894; Akhi/ Bhartiya Soshit Karmachari Sangh (Rly) v. UOI,
AIR 1981 SC 298; Som Pmknslz Rakhe v. UOJ, AIR 1981 SC 212 etc. etc.
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE 15
interpretative skill in social sciences from which law derives its source and
validity.
Legal philosophers ha-ve been categorised int~ ?i!fere~t schools on the
J
I basis of their approach to law. But such a d1v1s1on 1s ~y . no mea~s
comprehensive and exact. There may be jurists who may fall w1thm the strict
bounds of one particular school. Again the ideology of one school m~y be
overlapping with that of another school and some of t~e schools may be !ust _a
II
synthesis of the two ideological thoughts. Be that_ as 1t ma~, _but one thmg 1s
certain that these schools reflect the socio-economic and _pohtical changes of a
given time embodying the legal phHosophy to suit the needs of the
transforming society.
-'1 Legal theories, like theories of methodologies~ are generally c~tegorized
according to the element of their subjects they co~s1~e: to b~ ~sse1:1tial. Thus a
legal theory that stresses the logical contents of Jud_1c1al ~pm1on 1s called t~e
formalist theory; a theory which emphasizes their social conse~uences 1s
called utilitarian theory, and a theory that regards the_m a~ ~eflect10ns of the
I
t
i
1
circumstances in which they were written is called h1stonc1st. The problem
with all such theories is that they single out one particular aspect of the law
as the essential aspect. However, it was Justice Holmes who as a le~al
philosopher denounced this conception and held that the law has no essential
aspect.
Utility of Jurisprudence:
There is a general confusion about practical utility of jurisprudence ~s a
subject. It is often alleged that jurisprudence bein? a~ abs_tract and theoretical
subject, is devoid of any practical utility. But th~s view ~s n_ot _su_pported _by
Salmond who pointed out that jurisprudence has its own mtr_1~s1c ~ntere~t hke
any other subject of serious scholorship. J1;1st a~ a ~a~hemahc1an mve~tigates
the number theory not with the aim of seemg his fm_dmg_s pu! to prach~al use
but by reason of the fascination which it holds f~r ~1m,_ h~e':1se the wnter on
jurisprudence may be impelled to his subject br its mtrms1c mterest. The le~a~
researches on jurisprudence may well have their effect on c~mtemporary socio
political thought and at the same time may themselves be mfluenced by these
ideologies.
As rightly observed by Professor Jules L . Coleman, 1
"Jurisprudence aims at explaining the distinctive forms of lif_e t~at
governance by law makes available, ···~·· It engages law m its
'aspirational mode'. Without law, these forms of ~ife "".'o~ld not be
attainable, or if attainable, only incompletely so. The a1_m of J_unsprudence
is to identify those forms of life and explain the way m wh1eh law helps
to create and sustain them."
Jurisprudence also has its practical applicability. It seeks to r~ti0nal_ise
the concepts of law which enable us to solve the different problems mvolvmg
1. Coleman J.L. : The Architecture of Jurisprudence, 121 Yale L.J. 2, 14 (2011).
 16 JURISPRUDENCE AND LEGAL THEORY
intricacies of law. In other words, it serves to\render the complexities of law
more manageable and rationale and in this way this can help to improve
practice in the field of law .1 · ·-.
That apart, jurisprudence also has great educational value. The logical
analysis of legal concepts widens the outlook of lawyers and sharpens their
logical technique. It helps them in sheding aside their rigidity and formalism
and trains them to concentrate on social realities and the functional aspects of
law. It is not the form of law but the social function of law which has relevance
in modem jurisprudence. Law has to take note of the needs of society and ,a lso of
the advances in the related and relevant disciplines such as sociology,
economics, philosophy, psychiatry etc. For instance, a proper understanding of
law of contract may perhaps require some knowledge of economic and economic
theory or a proper grasp of criminal law may need some knowledge of
criminology and psychiatry and perhaps ~lso of sociology.
Commenting on the significance and utility of jurisprudence, Holland
observed, "the ever renewed complexity of human relations calls for an
increasing complexity of legal details, till a merely empirical knowledge of
law becomes impossible". 2 Thus jurisprudence throws light on the basic ideas
and the fundamental principles of law in a given society. This is why it has
been characterised as "the eye of law" by some jurists.
Jurisprudence helps the judges and the lawyers in ascertaining the true
meaning of the laws passed by the Legislature by providing the rules of
interpretation. It also furnishes them opportunity to pinpoint the lacunae,
shortcomings and defects in the laws framed by the legislature and improvise
them through their judicial interpretation.
The study of jurisprudence helps in rationalising the thinking of the
students and prepares them for an upright civil life. The knowledge of law and
legal precepts also helps them to face exigencies of human life boldly and
courageously .3
Jurisprudence may also be helpful to legislators who play a crucial role in
the process of law-making. The study of jurisprudence may familiarise them
with technicalities of law and legal precepts thus making their job fairly easy
as also interesting.
According to R.W.M. Dias, the study of jurisprudence provides an
opportunity for the lawyer to bring theory and life into focus, for it concerns
human thought in relation to social existence. 4 The utility of jurisprudence
should be tested in the light of its functional role and in the context of the
prevailing socio-economic and political philosophies of the time, place and
circumstances. The law should serve the purpose of 'social engineering' by
preserving societal values and eliminating conflicting interests of individuals
in the society.
I. Sawer : Law in Society p. 153.
2. Holland T. E.: Elements of Jurisprudence (13th ed.) p. 1.
3. Phillimore J. G. : Principles and Maxims of Jurisprudence p. 30.
4. Dias R.W.M. : Jurisprudence (Preface) p. VII.
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE 17
Inter-relationship of Jurisprudence with oth~r Social Sciences :
Jurisprudence is closely inter-related with o!her s~ial scie~ce~ since all of
them are concerned with human behaviour m society. Pointing out the
relationship of jurisprudence with other branches of knowle_dge, _G. M. Paton.
observed, "inodem jurisprudence trenches on the fields of social sciences and of
philosophy; it digs into the historical past and att~n:1-pts to create t~i
symmetry of a garden out of the luxuri~t ~haos of_co~flicting leg~l systems •
Julius Stone also explained the functiomng of JU~isprudenc~ m terms ~f
knowledge of other social disciplines and stated, "junsp~dence is the la"'!'er s
extraversion. It is lawyer's examination of the precepts, id~als ~n~ t~chmques
of the law in the lights derived from present knowledge in disciplines other
than law".2
Wurzel candidly observed that jurisprudence as a living s~ience of law,
cannot be divorced from society of which individua!s a~e an integral _Part. ·
Every legal system reflec~s the social bac~g~ound w~ich ~t operates. It is so,
because of the inter-relationship of men withm the society.
Dean Roscoe Pound who propounded the theory of law as. a 'so~ial
engineering', pointed .out that jurisprudence•is closely inter-related with ethics,
economics, politics and sociology which though distinct enough as t~e core, ~re
shade into each other. All the social sciences must co-ordmate wi~h
·uris rudence to make it a functional branch of knowledge. 4 Justice Mc Cardie
~mphasised the indispensability of the study of other social scienc~s for the
proper understanding of jurisprudence. He wrote, "there never was~ time wh_en
the barrister had greater need of a wide culture and of a full acquaintance with
history, with economics and with sociological science".
With the developm~nt of social sciences in mode~ times, the approach to
jurisprudence has radically changed and more emphasis came to be placed on
the study of factual legal behaviour.
Jurisprudence and Ethics :
Ethics as a branch of knowledge deals with human conduct _and lays dow_n
the ideals of human behaviour. It is closely related to morality and pubhc
opinion which are dynamic concepts varying from place to place, fro~ time to
time and from people fo people. What may be a rule of good morality at one
time may not necessarily remain so all the time and it may even become a bad
moral conduct in time to come. Thus the public opinio~ and moral precepts go on
changing with social evolution, S(?Cial culture and social developm~nt. .
Jurisprudence is concerned with positive mor~lity sine~ ~aw is co~s1dered
as an instrument to regulate human conduct in s~iety. ~os1hve m?rahty does
not depend on ideal behaviour or good actions but 1t reqmres a c~rc1~e force for
maintaining public conscience. There is a separate branch of JUnsprudence
1. Paton G.W. : A Text Book of Jurisprudence p. 1.
2. Julius Stone : Prcr.;ince and Function of law p. 25.
3. Quoted in Dias: Jurisprudence (Fifth Ed.) p. 3.
4. Dean Roscoe Pound : Law and Morals p. 115.
 18 JURISPRUDENCE AND LEGAL THEORY
II
called the ethical jurisprudence which seeks ·to' lay down the standards of ideal
for human conduct in terms of law for the maintenance of public conscience.
It must, however, be stated that there are inany unethical acts which the
law does not seek to punish. For example, the law ·does not take notice of trifles.
So also, to tell a lie is unethical but it is not punishable as an offence.
Conversely, all that is prohibited is not necessarily immoral e.g. possessing
land beyond ceiling limit is punishable under .the law but it is not an unethical
act. Again, . driving a vehicle or a car without a valid licence is not unethical
although it is prohibited by law.
Generally speaking, laws must not be divorced from accepted human
values since it is an instrument for regulating human conduct in a given society.
As Dr. M. J. Sethna rightly pointed out, laws of a community are reflected in its
culture, ideology and social norms. Th~y are therefore, indicators of country's
civilisation and the ethical standards of the society, hence ethical values
cannot be exclude4,from jurisprudence.
Jurisprudence aad Psychology:
Psychology as a branch of knowledge is concerned with the working of
human brain or mental faculty. Since jurisprudence and law are necessarily
concerned with hum.an action and it is the human mind which controls human
action, the inter-relation between psychology and jurisprudence need not be
over-emphasised. Particularly in dealing with crimes the psychology of the
offender is generally taken into consideration. Again, psychology plays a
. dominant role in the study of criminology and penology.
The psychology of the offender is also one of the crucial factors in deciding
the nature of punishment of the convicted person. The modem reformative
techniques of punishment such as probation, parole, indeterminate sentence,
admonition, pardon etc. are essentially deviced for the treatment of offenders
according to their psychological traits.
That apart, the legal concepts such as negligence, intention, motive, mens
rea recklessness, rashness etc., pertain to the faculty of mind and, therefore,
they form a part of study of psychology as also the jurisprudence.
Jurisprudence and History:
It is difficult to appreciate the present law and legal system without
probing into its past historical evolution. Therefore, there is a close inter-
connection between history and jurisprudence. History consists of the study of
past events in their proper perspective. Thus in order to understand the
constitutional jurisprudence of a country it is necessary to look into its past
constitutional history. It may therefore, be concludeL. that the study of
different branches of law essentially requires their study in the historical
perspective without which its knowledge would remain incomplete. The
codification of personal laws of Hindus in 1955-56 is essentially an outcome of
the historical evaluation of the uncodified Hindu law of ancient India and its
transition through many phases.
JURISPRUDENCE-ITS MEANING, NATURE.& SCOPE 19
The whole historical school of jurispru_dence is devoted to the study of law
in its · historical perspective and has substantially contributed to trace the
evolution of law and legal systems in different countries.
Jurisprudence and Sociology :
Sociology also includes .the study of a part of law to some extent. For
example, criminology is one of the inter-disciplinary studies related to both
sociology and law. Again, Jurisprudence · includes within its compass the
sociology of law, that is the practical functioning of law in ·the society~ Further, ·
sociology as well as the study of jurisprudence are concerned with regulation of
human conduct in society. Therefore, the two are intimately connected. It must,
however, be noted in this context that lawyer's approach to law is different
from that of a sociologist's attitude towards law. The former looks it from point
of view enforceability and obedience by the peQple while the latter
concentrates on studying how these rules actually govern the behaviour of
indivi~ual in the society.
More recently, there is greater thrust on sociological approach to law and
legal problems. The modem prison reforms and correctional services for the
treatment of offenders have been devised keeping in view the sociological
factors of the offenders. Even the judges have accepted the role of sociology and
its relationship with law and it is often reflected in their decisions.1 The
purpose of law as conceived today, is to ensure socialjustices. 2
The relationship between law and sociology has been supported by G.W.
Paton for three obvious reasons, namely. (1) it enables better understanding of
the evolution and· development of law, (2) it provides greater substratum for
identity of law commensurate with human needs and societal interests, and (3)
· it provides objectivity to legal interpretation which is the need of the hour.
Without social interaction, law would remain a mere theoretical perception
devoid of any practical utility.
Jurisprudence and Economics :
Economics being a science of money and wealth and jurisprudence a science
of law, both are intimatefy co-related. Economics deals with production and
distribution of wealth for satisfying the wants of the people. It is one of the
major factors responsible for the incidence of crimes. There are many laws
which seek to regulate economic activities of mankind. To name only a few, the
laws relating to banking, companies, negotiable instruments, foreign exchange
regulation, consumer protection, ceiling of land and wealth, payment of wages,
bonus, insurance, debts etc. are intended to regulate one or the other economic
activity of man in the society. Of late, law of poverty and law of population
1. People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1483; Bandhua Mukti Morcha
v. Union of India, AIR 1984 SC 802; Neerja Choudhury v. State of M.P., AIR 1984 SC 1283;
Gaurav Jain v. Union of India, AIR 1997 SC 3031; Vishkha v. State AIR 1997 SC 3011, etc.
2. Preamble and Art 39 of the Constitution of India. Other examples are the Civil Rights Act,
1955; SC/ST Atrocities (Prevention) Act, 1989; Satipratha Abolition Act, 1987; Legal Servi~e
Authorities Act, 1987; Child Marriage Restraint Act, Protection of Women From Domestic
Violence Act, 2005, etc.

20 JURISPRUDENCE AND LEGAL THEORY
have developed ~s separate branches of law fo~~the welfare of the people. The
ultimate aim of economics as well as jurisprudence is to improve the .standard of
life of the people for the welfare of the community as a whole. Law acts as
means to achieve this end.
Jurisprudence and Political Science:
Friedmann has aptly remarked that jurisprudence is linked at one end
with philosophy and at the other end with political theory. Political science
deals with the principles governing the governmental organisation. State is
politically organised society which makes law for good governance of the
people. Politicians who are representatives of the people form the Legislature
, which is the law-making organ of the Government. This amply reflects on the
relationship of jurisprudence i.e. science ·of law with politics.
From what has been stated above,/it is evident that the subjectmatter of
jurisprudence comprises a synthetic study of various disciplines and social
sciences, each playing their role for the proper understanding of the
fundamental principles of law. It is primarily for this reason that some jurists
have advocated the necessity of synthetic jurisprudence in recent years. They
have asserted that jurisprudence is an amalgam of history, philosophy, .
politics, sociology, economics etc., it is a science and is concerned with altruistic
utilitarianism or the doctrine of hedonism as propounded by. Bentham. Jerome
Hall is one of the ardent supporters of synthetic jurisprudence in United States.
Lord Dennis Llyod has also emphasised the need for synthetic jurisprudence for
the growth and practical applicability of law.
Comparative Jurisprudence :
As the term itself suggests, comparative jurisprudence implies a
comparative study of laws and legal institutions of two or more legal systems
operating in different countries of the world. As rightly stated by Gutteridge,
'Comparative jurisprudence' is a term which suggests the use of comparative
method as a tool to find out differences and similarities between the different
legal systems. It includes a comparison of precepts~ doctrines and legal
institutions which are found in different systems of law. Austin himself
adopted comparative method to propound his· theory of general jurisprudence
by studying the legal systems of the Romans. Likewise, Savigny adopted
comparative historical approach for studying the law and legal institutions, of
Greeks, France and Germany. Again, Sir Henry Maine made an intensive
comparative study of ancient Indian law before formulating laws for British
India. The importance of comparative jurisprudence lies in the fact that it
enables a country to know about the shortcomings of its own legal system and
suggests alternative for improving it through the method of comparison.
The foremost jurists to contribute to the developments of comparative
jurisprudence were Kant and Story. According to them the chief function of
comparative jurisprudence was to facilitate legislation and the practical
improvement of law. The Jurists of 20th century started to appreciate the fact
that fr-.~:: 6 ~ ~aw may be studied for the lessons to be learned from it, and that
JURISPRUDENCE-ITS MEANING, NATURE & SCOPE 21
comparison was not merely an artifice to enable foreign rules to be introduced
into a national system of law. Salmond has characterised comparative
jurisprudence as "the study of the resemblances and di!ferences between
different legal systems." He refuses to accept comparative jurisprudence as a
separate branch of jurisprudence but accepts it merely as a particular method of
that science.
The study of jurisprudence may broadly be carried out under four heads as
follows:- ·
(1) Analytical Jurisprudence,
(2) Historical Jurisprudence,
(3) Philosophical or Ethical Jurisprudence, and
(4) Sociological Jurisprudence.
The purpose of analytical jurisprudence is to analyse artd dissect law of
the land as it exists today whereas historical jurisprudence deals with general
principles governing the origin and development of law and also the
development of legal conceptions and ·institutions and principles found in the
philosophy of law. The ethical jurisprudence mainly devotes itself to the law
not as it has been but as it ought to be. The object of sociological school is to
study jurisprudence with reference to the adjustment of relations and ordering of
conduct which is involved in social life.
Summing up the contribution of each of these social sciences to the
development of jurisprudence as a social science, Dean Roscoe Pound1 observed :
"Jurisprudence, ethics, economics, politics and sociology are distinct
enough at the core, but shade out into each other. .When we look at the core,
the analytical distinctions are sound enough. But w~ shall not understand
even that core and much less the debatable ground beyond, unless we are
prepared to make continual deep incursions from each into each other. All
the social sciences must be co-workers and emphatically all must co-work
with jurisprudence."
New Horizons of Jurisprudence
With the advance of knowledge and developments in jurisprudential
thinking, the traditional positivistic approach to legal doctrines, princ~ples of
law and constitutional dictums have lost their credence and a new socio-legal
philosophy based on social engineering ·and judic~al activ_ism has ~merged for
the fulfilment of felt-desires and needs of the society. This dynamic approach
3
focuses more on the rights of the dtizenry, 2 the poor or underprivileged,
women, children, 4 and the other vulnerable sections of the society who are
1. Potmd : Law and Morals (2nd Ed. 1926) p. 115.
2. Sontistar Builder v. Narayan K. Totame, AIR 1990 SC 630 ; Unnikrishnan v. State ,if A. P., AIR
1993 SC 2178.
3. Hussainara Khatoon v. Home Secretary, Bihar, AIR 1979 SC 1360; State of M.P. v. Ram Krishan
Balothia, AIR 1995 SC 1198.
4. Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
 . J{JRIBPRUDENCE-ITS ME~G, NATURE & SCOPE . 23
. . .
22 JURISPRUDENCE AND LEGAL THEORY
It hardly needs to be st~ted that law as an instrument o! social change,
unable to protect and preserve their constitutic;mal and human rights. 1 In the has to be flexible to be effectively responding to the .changing values .and
changed scenario, a. duty is cast upon the judiciary and the Apex Court in e ectations of 'the society. Commenting on this aspe~t of law, Bodenh~rmer
particular, to ensure that the basic cardinal principles of good governance such o:erved that, "l~w mu~t intelligentl{ link the past with the present without
as secularism, national integration, democracy, ru~ of law and socio-economic ignoru:ig the p~ssmg claims of future.
justice are assured to the people of India. These new dimensions call for judicial
activism and dynamic approach on the part of lawyers and judges to ensure □□□
social justice and · be responsive to the social cha:p.ge which the country is
witnessing in the new millenium.
Commenting on the function of law in the contemporary society, Mr. Justice
K. Ramaswamy in Delhi Transport Corpn. v. DTC Mazdoor Congress,2
observed:
"Law is a social engineering to remove the existing imbalance and to
further the progress, serving the needs of the. Social Democratic Bharat, under
the rule of law. The prevailing social conditions and actualities of life are to be
taken into account for adjuring whether the impugned legislation would
subserve the purpose of society."
Broadly speaking, there are three kinds of laws that regulate human
conduct in society, namely, the law of theologions, law of moralists and the law
of the jurists. Jurisprudence is mainly concerned with law of jurists and analysis
as to how law operates in a given society. It is concerned with different sources
of law and various legal concepts. As rightly pointed out by Justice Markandeya
Katju, study of law comprises its origin, nature, forms, concepts and its role in
society. 3
The supremacy of law must be upheld, no matter how powerful or man of
status a man may be. Thus State of Haryana v. Bhajanlal, 4 Justice Pandian of
the Supreme Court reiterated the supremacy of law in the context of powerful
political tycoons allegedly involved in corruption for private gain at public
expense.5
The Supreme Court in its recent decision in Sterlite Limited case6 adopted
a more pragmatic and proactive approach and ordered the company to pay a
fine of one hundred crore rupees for causing environmental pollution due to its
mineral exploitation activity which had cause huge damage to people living
in the vicinity. The High Court of West Bengal had ordered closure of the
company in 2010 but the Supreme Court considered that it is insufficient in view
of social justice to the affected people.
1. District Collector v. Shaik Hasmath Beebi, AIR 2001 SC 1681.
2. AIR 1991 SC 101 (188r
3. Justice Katju's article on "the Crisis in Jurisprudence, AIR 1993 SC Ooumal Section) p. 88
(90). r
4. State of Haryana v. Bhajanlal, AIR 1992 SC 604.
5. M . C. Mehta v . Kamal Nath, AIR 2002 SC 1515 applying the principle of "Polluter Pays"' the
Supreme Court imposed a fine of ten thousand rupees on Union Minister Kamal Nath for
polluting the river bias by constructing a motel in the mid-river.
6. Decided by the Supreme Court on 2/4/2013 wherein the Court considered merely closure of
the company as insufficient in view of the tremendous damage caused to environment and
people due to pollution caused by the company's mineral exploitation activities. See also
Common Cause (A Regd. Society) v. UOI, AIR 1996 SC 3538 illegal and irregular allotment of 1. Bodenheimer : Power, Law :& Society (1973) Chapter II.
petrol pumps and gas agencies by the then Petroleum Minister Capt. Satish Sharma.

2 imperative school. The advocates of this school are neither concerned with ~he
SCHOOLS OF JURISPRUDENCE
(ANALYTICAL SCHOOL)
Jurisprudence in its technical sense is divisible into three main branches.
~s division ~s based on certain bas~c ass~mptions about 'law' characterised by
Jurists belongmg to each school which distinguishes them from those of other
schools. The scope of jurisprudence has widened considerably during the 19th
century because of the felt necessities of the time. In the modern age it has been
treated as a science of social control of human conduct, hence a comprehensive
basis of classification of jurisprudence fnto different schools according to the
legal philosophy propounded by the advocates of these school, has become all
the more necessary. Different approaches to the treatment of jurisprudence are
:e~resented b~ its various ~chools of thoughts. Salmond preferred to divide
JUnsp~de~ce mto three ma1or schools which he called as (1) Analytical school
(2) Historical school; and (3) Ethical school. These divisions correspond to
l~gal _exposition,_ legal history and science of legislation i.e. dogmatic,
histoncal and ethical aspects of jurisprudence.
It must, however, be stated that the learned author of Salmond's
Jurisprudence, P.J. -Fitzgerald has omitted to mention this division of
jurisprudence into three distinct branches because in his opinion such a ·division
of the subject into watertight compartments is unwarranted, the reason being
that for a full exposition of the present proposition of law under the analytical
school, a reference to past historical aspect and to its possible reaction in future
shall perhaps be inevitable.
_ __ 1:tere is no unanimity of opinion regarding desirability of the grouping of
essent~al ~h~mes ~onc~~i_ng nature of law into different schools. Some jurists
~ave J~s~ified · th~s divis~o~ or grouping in the interest of uniformity and
mdenhfymg law mto defirute categories or branches which are called 'schools
~f _jurisprudence' while others have denounced such disintegration of
Jurisprudence into different 'schools' which would perpetuate 'over-lapping
and atomisation' .1 It would involve excessive duplication or unnecessary
compartmentalisation of legal philosophy which would serve no useful
purpose.
Analytical S~hool
The major premise of analytical scr~ol of jurisprudence is to deal with
i while that of censorial jurisprudence is to ascertain what the law ought to be.
law as it exists in the present form. It seeks to analyse the first principles of
law as they actually exist in a given legal system. The exponents of analytical
school of jurisprudence consider that the most important aspect of law is its
l. Stone Julius: Province and Function of Law p. 26.
[24)
SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) 25
relation to the State. They treat law as a command emanating from the
sovereign, nc;1mely, the State. This school ·. is therefore, also called the
past of the law nor with the future of it, but they confine themselves to the
study of law as it actually exists i.e. positus. It is for this reason that this
school is also termed as the Positive_ School of jurisprudence. Bentham and
Austin are considered to be the fore runners of this school in England, hence, it is
also sometimes known as the Austinian School of jurisprudence. The other
exponents of analytical school ·are Holland,l Sir John Salmond, 2 Sheldon,
Amos,3 Markby4 etc. The school received encouragement in United States from ·
distinguished jurists like Gray, Hohfeld and Kocourek and in the European
continent from Kelson, Korkunov and others.
Jeremy Bentham (1748-1832)
Jeremy Bentham heralded a new era in the history of legal thought in
England. He is considered to be the founder of positivism in the modern sense of
the term. It has been rightly said that Austin owes much to Bentham and on
many points his propositions are merely the 'para-phasing of Bentham's
theory'. Be;ttham's classic works reveal that truly speaking, he should be
considered to be the father of analytical positivism and not John Austin as it is
commonly believed.
Bentham was the 30n of a wealthy London Attorney. His genius was of
rarest quality. He was a talented person having the capacity and accumen of a
jurist and a logician. Dicey, in his book 'Law and Public Opinion in 19th ·
Century', has sketched Bentham's ideas about individualism, law and legal
reforms which have affected the growth of English law in the positive
direction. The contribution of Jeremy Bentham to the English law reforms can be
summarised thus-
"He determined, in the first place, the principles on which reforms should
be based.
Secondly, he determined the method i.e. the mode of legislation, by
which reforms should be carried out in England."
Bentham's Expositorial and Censorial Jurisprudence:
Bentham preferred to divide jurisprudence into 'expositorial' and
censorial jurisprudence. Expository or analytical jurisprudence is concerned with
law it is without any regard to its moral or immoral character. Censorial
jurisprudence, on the other hand, is concerned with 'science of l~gislation' that
is, what the law ought to be.
The function of 'expositorial' jurisprudence to ascertain what the law is
l. Sir Thomas Holland (1835-1926) published his 'Elements of Jurisprudence' in 1880.
2. Sir John Salmond (1862-1924) was a Judge of the Supreme Court of New Zealand. He
published his Jurisprudence in 1902.
3. Amos (1835-1886) was Judge of the Court of Appeals in Egypt.
4. Sir William Markby (1829-1914) was the Judge of the Calcutta High Court. He published his
book 'Science of Law' in 1874.
 26 . _, JURISPRUDENCE AND LEGAL THEORY
Jeremy Bentham's Views On "Law' and Legfl Positivism . continue or may adopt laws to be made in future by subordiriate
English law as it existe<i at the end of the.18th century, when Bentham
was still in his youth, had developed almost in a hap~azard war_ as a result of
customs or modes of thought which prevailed a~ different period. The laws
which were then in existence were not enacted ·with any definite guiding
principles behind them .. The law of England, like that of most co~rttries ~f
contemporary Europe, had grown out of occasion aI1;~ emergency. It is for this
reason that it is often said that in England law had m fact grown, rather than
been made.
Jeremy Bentham defined law "as an assemblage of signs declara~ve of a
volition conceived oi adopted by the Sovereign in a State, concernmg the .
conduct to be observed in a certain case by a certain person or class of persons,
who in the case in question are or are supposed to be subject to his power; such
volition trusting for its accomplishment. to the expectation of certain events
which it is intended such declaration should upon occasion ·be a means of
bringing to pass, and the prospect of which it is intended should act as a motive
upon those whose conduct is in question". 1
Bentham was a tireless campaigner of reform and insisted that prior to
, reform there has to be a thoroughgoing classification of law as it is. He was a
champion of codified law and of English law reform which in his view was in
chaos in those days. He advocated that there could be no reform in substantive
law without reforming its structure through a process of analysis. Therefore, he
distinguished expositorial jurisprudence (i.e. what the law is) from censorial
jurisprudence (i.e. what the law ought to be). 2 Which laid greater emphasis on
art of legislation.
Bentham rejected the theory of Natural Law
Like Thomas Hobbes, Bentham also rejected the natural law theory and
co-related law with sovereignty and utility. He was a critic of natural law
philosophy and called it 'nothing but a phrase' and even went to the extent of
calling Blackstonian natural rights as a sheer 'non-sense upon stilts' .3 In his
view, nature has placed mankind under two sovereign masters, namely, pain
and pleasure which alone decide as to what man should do or not do. This he
termed as hedonic calculus, which later came to be known as his principle of
utility. According to Bentham, only those laws could be upheld which
promoted four goais of subsistence, abundance, equality and security.
As stated earlier, Bentham's concept of law is imperative one i.e. law is
an assemblage of signs, declarations of volition conceived or adopted by
Sovereign in a State. He believed that every law may be considered in the
light of eight different aspects, viz.-
1. Source of law is the will of the sovereign which may consist of laws
made by him or permitting laws made by former sovereign to
1. Of Laws in General (edited by Hart) 1970, p. 1.
2. Dias: Jurisprudence (5th ed. 1985) pp. 336-337.
3. Lloyd Dennis: Introduction to Jurisprudence (1959) p . 113.
SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) 27
authorities. ·
2. Subjects who (may be persons or things). They may be active or
passive. .
3. Objects (act, situation or forbearance). Each law regulates cond~ct
which may be positive or negative by imposing duties or granting
,,,
permission depending on act-situations.
4. Extent, (Law covers a portion of land on which acts have been
done).
5. Aspect (may be directive or sanctional). Command is only one of the
aspects of the will of the sovereign carrying with it force of law.
6. Force or sanction which motivates evidence of law. It is for
regulation of conduct of subjects in society.
7. Rem~dial State appendages in order to stop or prevent the evil.
They are addressed to Judges with a view to curing the evH or
preventing future evil. ·
8. Expression. : Whete expression of law is complete in unequivocal
terms, the Judge must adopt literal interpretation. It is only where
the expression of law is incomplete that the Judge may resort to
liberal interpretation. Bentham was vehemently against the
judge-made law and therefore, he sought to minimise judicial
discretion by trying to ensure that laws were complete, not only in
expression but also in design.1
This is the reason why customary laws were not regarded as law because
they could never be complete.
Bentham's Utilitarianism:
Bentham as an individualist believed that the function of law is to
emancipate individual from the bondage and restraint upon his freedom. He
supported the economic principle of ' laissez-faire' which meant minimum
interference of the State in the economic activities of individuals. Bentham
propounded the principle of utilitarianism. According to this theory, the right
aim of legislation is the carrying out of the principle of utility. In other words,
the proper end of every law is the promotion of the greatest happiness of the
'greatest number'. Bentham defined 'utility' as 'the property or tendency of a
thing to prevent some evil or procure some good'. According to him, the
consequences of good and evil are respectively 'pleasure' and 'pain'.
Around 1830, Benthamite utilitarianism had become the most popular
creed of English legislative reforms. Bentham proceeded from the axiom that
nature has placed mankind under governance of two sovereign masters i.e.
pleasure and pain. They alone point out to us what we ought to do and what we
should refrain from doing. The good or evil of an action should be measured by
the quality of pain and pleasure resulting from it.
1. Dias R. M. W.: Jurisprudence (5th edn. 1985) Indian Reprint 1994 p. 340.
28 JURISPRUDENCE AND LEGAL THEORY
The task of govemmei:'t according to Bentram, was to_ promote. happ~ess
of society by furthering enJoyment of pleasure and affording security agamst
pain. He was convinced_that if individuals compnsing society were happy and
contented, the whole body politic would enjoy hap_piness and prosperity.
Bentham believed that happiness of the social order is to be understood in
the objective sense and it broadly includes satisfaction of certain needs, such as
need to be fed, clothed, housed, etc. Accordll)g to \lim, happiness changes its
significance in the same way as the meaning of happiness also undergoes
changes with the changes in societal norms.
As state earlier, Bentham desired to ensure happiness of the community
by attaining four major goals, namely, (1) subsistence, (2) · abundance, (3)
equality, and (4) security for the citizens. Therefore, the function of law must be
to meet these ends i.e. to provide subsistence, to produce abundance, to favour
equality, and to maintain security. Ofi these four ends of legal regulation,
security was of foremost importance to"him as it was related to protection of
honour, property and status of a person. He pointed out that individual liberty,
though a highly important branch of security, must sometimes yield to
consideration of general security. In his opinion, it is not liberty but security and
equality which should form the main objective of legal regulation.
Bentham never questioned the desirability of economic individualism and
property. He firmly believed that people's right to property must be respected
for the welfare of the state. Society should encourage private enterprise so as to
promote opportunities for subsistence and abundance. Bentham rejected natural
rights and recognised no limitations on Parliamentary sovereignty.
John Stuart Mill agreed with Bentham's view regarding utilitarianism
which is also called the doctrine of hedonism or theory of pain and pleasure.
He advocated that doctrine of utility in terms of pain and pleasure was
altruistic rather than egoistic since the ideal was "the happiness of all
concerned." Therefore, justice implies an urge to retaliate for a wrong i.e. rebel
against injury. Thus, for Bentham, pleasure and pain were the ultimate
standards on which a law was to be judged. It is for this reason that
consideration of morality had no place in Bentham's utilitarian approach.
Bentham pleaded for codification of laws and he was opposed to judge-made
law.
Bentham was a profound thinker, an acute social critic and a staunch law-
reformist. Commenting on Bentham's philosophy, Sir Henry Maine, observed,
"Bentham was in truth neither a jurists nor a moralist in the
proper sense of the word. He theorises not on law but on
legislation; when carefully examined, he may be seen to be a
legislator even in morals. No doubt, his language seems
sometimes to imply that he is explaining moral phenomena, but
in reality he wishes to alter or re-arrange them according to a
working rule gathered from his reflection on legislation". 1
1. Maine Henry Sir : Early History of Institutions, p . 400.
SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) 29
Bentham's contribution to legal theory and legislatiort is so great that his
period is known as the 'Benthamite era' in the legal history of England. He
introduced legal positivism and treated legal theory as a science of
investigation which should be approached· through scientific method of
experimenting and reasoning.
Bentham views on Justice.-Bentham agreed with Hans Kelson who said,
"absolute justice is an irrational ideal, an illusion-one of the eternal illusions
of mankind". He held justice as primarily a quality of social order regulatin:g
mutual relations of men. A social order is just if it is satisfactory to all men.
Therefore, longing for justice is,. in fad, longing for happiness in the society. In
other words, justice is nothing but social happiness guaranteed by a social order
and protecting certain interests socially recognized by the majority as worthy of
being protected.
Bentham's perception of justice is based on system of values and each
society has its own different set of vaJues, i.e., morals. The individuals living
in the society have to conform to the set values or norms and rationalise his
conduct or behaviour accordingly. If they do not, there would be conflict of
interest. If there is no conflict of interest, there would be no need for justice.
Bentham was a progenitor of modem analytical jurisprudence
Bentham was mainly concerned with the law reforms therefore he
distinguished censorial or evaluative judsprudence from expository or
analytical jurisprudence. According to him, expository jurisprudence was
concerned with law as it is, without any concern of law as it ought to be. That is,
he did not think 'morality' as an essential attribute of law. He expounded the
concept of 'positive law' which commanded citizens to obey the law as it is or
face legal sanctions in the event of its disobedience. Thus completely discarding
the superiority of natural law, he advocated the supremacy of the law made by
the· Sovereign, 1 in the interest of general good of the people. It is, therefore,
often said that it was Bentham and not Austin who was the progenitor of
analytical jurisprudence.
Criticism Against Bentham:
Bentham's theory of utilitarianism has been subjected to criticism on many
counts. According to Friedmann, it suffers mainly from two weaknesses. Firstly,
in an affort to blend materialism with idealism; Bentham underestimates the
need for individual discretion and flexility in the application of law
overestimating the power of the legislator. Secondly, his theory fails to
balance individual interests -with the interests of the community. 2 Another
criticism advanced against Bentham's hedonistic calculus, i.e., theory of
utilitarianism is that pleasure and pain alone cannot be the final test of the
adequacy of law.
1. Bentham : Limits of Jurisprudence Defined written in 1872 and published by Everett in
1945.
2. FriE:d:nann : Legal Theory (5th ed.) p. 171.
30 JURISPRUDENCE AND LEG~L THEORY
I
Bentham's theory suggests that interests of an unlimited number of
individuals shall be conducive to the interest of.the community. This, in other
words, means that freedom of enterprise will automatically lead to greater
equality. But when put to actual practice, it is just the reverse of it resulting
into inequality.
Again, Bentham advocated tha·t law should. be made exclusively by
legislation which was supposed to remove inroad to individual's freedom and
provide him opportunities for development of the self. But in later times it was
found that legislation was used to restrict individual's freedom in economic
matters. As rightly commented by Okey, it meant that "the apostle of
individualism was destined to become the founder of State socialism".
Despite the shortcomings of Bentham's theory of utilitarianism, his legal
reforms ushered a new era in the history of legislation in England, and indeed,
legislation has now become one of the most popular methods of law-making.
Bentha!n was in fact the intellechtal god-father of John Austin from whom the
latter borrowed, developed and perfected his theory of analytical positivism.
Bentham devoted his entire life to the improvement in the quality of law and
life with a view to promoting happiness of the people. It is irony of fate that
Bentham's works1 en law and legislation did not receive much attention during
his life-time but they were highly acclaimed and appreciated in latter years
much after his death. He left a vast quantity of material in the form of
manuscript which was not published until the late 20th century.
Commenting on the contribution of Bentham to legal theory, G.W. Paton
remarked that it was shocking that Bentham's moralising and utilitarian
theory of law was altogether rejected and excluded from European jurisprudence
during the dying decades of 19th century. Though the main concern of Bentham
was to advocate reforms, but his brilliant insight in human behaviour and
shape of model law was the greatest contribution to European jurisprudence.
John Austin (1790-1859)
John Austin was born in 1790. He joined the army and served as an Army
officer for five years until 1812. He was called to the Bar in 1818 after his
graduation. He devoted his attention to equity, draftsmanship and legal
practise. He joined as Professor of law in the newly founded Bentahmite
University College in London. He was elevated to the chair of jurisprudence in
the University of London in 1826. Thereafter, he went to Germany to study
Roman law in Heidelberg and Bonn Universities. He was much impressed by
the scientific treatment of Roman law and drew inspiration to introduce the
same method to the legal exposition of law in England. He, however, avoided
metaphysical approach to law which was a peculiar characteristic of law in
Germany.
1. Bentham graduated from Oxford in 1763 and was called to the bar but he had no interest in
practise. He published 'Fragment on Government' in 1776; 'Introduction to the Principles of Moral
and Legislation' in 1789; 'Rationale of Judicial Evidence' in 1827. His monumental work 'The Limits
of Jurisprudence Defined' was published after his death in 1945.
SCHOOLS OF JURISPRUDENCE (ANALYITCAL SCHOOL) 31
The army training and discipline along with his experience in Germany
during study in law made him a staunch believer of positive and coercive force
of law particularly, while in Germany, he noticed that people of Germany
obeyed every thing that was commanded by the Prussian King Fedrich.
The army life of strict discipline· and co~and had its. reflection in the
Austinian concept of law. Austin published Province of Jurisprudence
Determined in 1832. In 1883, he was appointed as a member of the first
Criminal Law Commission but soon resigned. He also resigned Professorship in
1835 in despair due to insufficient fees. 1 In 1836, Austin was appointed as one of
the commissioners to enquire into the government and administration of Malta
and, thereafter, remained abroad till 1848. He died in 1859 and his works were
later published by his wife Sarah Austin in 1861.
The lectures delivered by Austin in London· University were edited and
published under the title Province of Jurisprudence Determined. 2 In this classic
work he dealt with the sources and nature of law and an analysis of English
legal system. He also wrote 'A plea for the Constitution' which was in response
to Professor Gray's work On Parliamentary Government.3
Austin's Analytical Positivism
Austin is considered to be the 'father of English Jurisprudence'. He
confined his study only to the positive law and applied analytical method for
this purpose. By positive law, Austin meant 'laws properly so called' as
distinguished from morals and other laws which he described as 'laws
improperly· so called' which lack force or sanction of the State. Austin
described positive law as 'the aggregate of rules set by man as politically
superior to men as politically inferior subjects. He attributes (1) command, (2)
sanction, (3) duty, and (4) sovereignty as the• four essential attributes of
positive law.
It was Austin who for the first time treated jurisprudence as a science of
law concerned with analysis of legal concepts-their exposition, examination
and comparison in a scientific manner in order to determine their scope and
extent in a given politically organised society.
Austin distinguishes positive law from positive morality which is devoid
of any legal sanction. He· identifies law with command, duty and sanction.
According to Justice Holmes, Austin's distinction between positive law and
positive morality seeks to exclude the considerations of goodness or badness in
the realm of law. In Austin's positive law there is no place for ideal or justness
in law.
In his own words, "the existence of law is one thing, its merit and demerit
another ... A law which actually exists, is a law, though we happen to dislike
1. In those days in England Professors were paid fees and not salary.
2. The second edition was published in 1861 and the third edition in 1869.
3. Austin's Lectures on Jurisprudence, edited by Campbell in 1855 were published by his wife
after his death in 1859.
32 JURISPRUDENCE AND LEGAL THEORY
it or though it may vary from the text by whicl{we regulate our approbation or
disapprobation."
The major thrust in Austinian positive law,_was therefore, on separation
of law from morals. As a corollary of it, he distinguished science of
jurisprudence from ethics. The former is concei:ned with positive laws
irrespective of their goodness or badness. Comm~nting on th.is point Amos
observed that a positive law, as Austin has shown, must be legally binding
though it may be unjust. Austin thus made his system of law logical, coercive
and enforceable as distinct from law as it ought to be. For him, command was
'the key to the science of jurisprudence."
The triology of command, duty and sanction which are implicit in Austin's
conception of law has invoked criticism from many quarters. Professor H.L.A
Hart holds that it creates a situation where law only obligates subjects and
threatens them with physical coercion unmindful of the legitimate moral-cum-
social obligations of the sovereign towards his subjects, thus compelling the
subjects to obey it meekly even if it is most unjust or unfair. Salmond also
criticised Austin's theory of law which completely divests law from morality
and held that law to be effective must have in it elements of .ethics,
reasonableness and justice.
Austin's positive law received criticism by Lon Fuller in United States
who propagated a view that the laws passed in derogation of popular will and
needs of society would be short-lived and cannot muster public support.
According to him, the purpose of law is to subject human conduct to the
governance of rules. The law, therefore, cannot be devoid of morality which
includes values, ideals, natural law and notice of justice.
Again, the noted Germar. legal philosopher Gustav Radbruch also
criticised Austinian conception of law which, in his opinion, leads to
dictatorship as was the case in Germany during the Nazi rule. He pointed out
that during Hilter's dictatorial regime, his words were law and the subjects
had no rights, liberties, freedoms. They were subjected to secret regulations and
statutes in complete defiance of notions of justice and morality. Radbruch
charactersied Nazi rule as a government of complete lawlessness devoid of any
morality or justice. 1 Therefore, he asserts that a purposive law can never be
separated from justice and morality which are pre-conditions of a good law.
Austin's Imperative Theory of Law
Dr. Allen preferred to call Austin's analytical school as Imperative
school. He stated that, Austin defined law as "a rule laid for the guidance of
intelligent beings by an intelligent being having power over him." He divides
law into two parts, namely, (1) Laws set by God for men; and (2) Human Law,
that is laws made by men for men. He says that positive morality is not law.
properly so called but it is law by analogy. According to Austin, the study and
analysis of positive law alone is the appropriate subject-matter of
I. Quoted from Wu John C.H. : American Case Book Series (1958) p. 66.
it\!if4!;tij!flttil\ia1a11,;1ii
by ·sancfiori. Thus, he- strongly, p~lj~yHd, 1tl)~t. ,la;wJ~, J\°W ~Y~refgn\~;-sop:im~~ft
carrying _with it ___ threat, of ey-11 \vhfoh. is--E~it~d. s._allction,r-and. _the ,-patty'
~;1~:t~~11r.tJ.~~!fff!tJ~ii1~~t~f ~~~ti~.
1
Austin, ?he>~ever✓ ac:c~ptt, tt,.at thei:e are th,ree _L<ind-s, c;,f l~\'YS, which,
:':!itt~tt'J:tts,tlif·bf il'b\~.a~~'.~;lryf·th.~.'pllr}'l~fi1t• ia~.',l>Y ~alf,9,~
, /. ,~ r;>~c;J~r~lPJY_,m•.:~xpl,a!l,~tQry, la,lVr_s,-r::--'.IJi_e~~·; ~re' ,not corn,:rn-ands l>~C~:tl$~;,
they N~ alr~ad,.y in; .e,"iste11c_e al\4 ,~re p~s~~d- 011Iy ;te> ,explain, th~: lirw whic;h;JsI
~i~~8:9iY W fpg:~~-" . - - ; '·,,;;::;;: •
~i!;·t;_,1!;::;i?::::t~f: :~~~~t1sti~ la~S aS~irthlfil\dS'~Cf~i'.
~--,Laws. of _ _ imperf~ft ___ obiig~ti~·~·-~11t~y_,~,e _ not _ t;~~teci·;;~,,~ori,i~~~d
s:i~:~~ff!J];:°f[}J~f:i!~~if:~~¥f~~,td"r~.
Austinian theory of law and analytical positivism has be~n' criticis'ed bf
juri~t)ike Bry~e,. .Ohv:~cron~ _and ,c;,Jhe,r:~~ ~ry;c:~, plla,..t:'1,c.te,rjs~~. ;i,\µ~tin1~. wqrk as
f~il_.,oLe~rqrs,,~hic:h l,,ai;~ly; ltas, any sigi,._ifi;Can~~-.,ll).· ju,i;i§t~c ,_fh94gl}J. ,J\,1JS.t4}~,Sj
t~e.oi;y .h~s been criticised ,()nth~, foll9wing,$TC>1).ll~S::7 '
'1. · Customs .overl6oked~_:i_,Austin''s' view that 'law is 'the' comma.hid bf
sovereign' is not supported by historical evolu.fidrioflaw w~erf customs 'pl~}'e4:
a significant role in regulating human conduct:Further> customs· still continue 'tcF
beapotent source-of law.even after:the.cpmigg int.oexistenceof :the,_State,1
2. Permissive charader· of law'ignor~d:--Aiistih's theotf (ioes fi()ft~.ke.:
notice of· laws which are of a· permissive·character arid confer ·privileges·e:.g<
the Borius Act, or the law of Wills etc: ,' . . . .- - - - .
3. No place for Judge-made law~~Judge.:made law- has, ~c>"·p1ar"'=' i11
Austinian conception of law although the creative function of judiciary _a~ a
law-making agency has been accepted in modem times all o~er ~he world." ·
4. ·Austin's theory treats lntemati~nal law ~s mere mQr,tlity.7Aµstin d~s
not treat international law as 'law' because it lacks sanction~ Instead, he
regards international law as mere positive moralityl This view .of Austin is
hardly tenable in the present time in view of the increasing role of
international law in achieving world peace.
T. Austin: The Province of Jurisprudence Determined p. 9.
2. Austin: The Province of Jurisprudence Determined p. 142.
34 JURISPRUDENCE AND LEGAL THEORY
s. Command over-emphasised.-The ,S wedish Jurist Olivecrona has
denounced Austin's theory of l~w because of it~.over-em~hasis on 'co~and' ~s
an inevitable constituent of law. In modem progressive democracies law is
nothing but an expression of the general will of th~ people. Ther~fore, command
aspect of law has lost its significance in the present democratic set-up where
people's welfare is the ultimate goal of the state.
It is unrealistic to think that sovereign in modem times is something
separale from the community and is capable of giving arb~trary co~and~. The
fact is that sovereign is an integral part of the community and m makmg of
laws, he is guided by public opinion.
6. Inter-relationship between Law and Morality completely ignored.-
Perhaps the greatest shortcoming of the Austin's theory is that it completely
ignores the relationship between law and morality. Law can ne~er be
completely divorced from ethics or mo~ality which provide strength to it. The
legal concepts such as 'right', 'wrong', 'duty', 'obligation' etc. themselves
suggest that there is some ethical or moral element present in them.
Commenting on inter-relationship between law and morality, Dr. Jethro Brown
observed, "even the most despotic legislator cannot think of or act without
availing himself of the spirit of his race and time."
7. Sanction alone is not the means to induce obedience.-Austin's view that
it is sanction alone which induces a person to obey law, is not correct. There are
many other considerations such as fear, deterrence, sympathy, reason etc.
which may induce a person to obey law. The power of the state is only the last
force to secure obedience of law.
8. Indivisibility of sovereignty criticised.-While bringing out distinction
between positive law and positive morality, Austin opined that the former was
set by a political supetior called the sovereign. According to him, the sovereign
could not be under a duty because his being under a duty would impliedly mean
that there is another sovereign above him. But Jethro Brown has contended
-that the sovereign could well be bound by a duty towards his subjects.
The Austinian view regarding indivisibility of sovereignty has also been
.criticised by some writers particularly, Bentham who showed here sovereignty
could be divided by conferring concurrent power of law-making between colonial
legislature and British Crown during the colonial rule in India and elsewhere.
Be that as it may, the credit of heralding a new era in the English legal
thought goes to Austin. The shortcomings of his theory paved way for further
improvement on the subject. Despite criticism against Austin's concept of law,
Prof Olivecrona has acknowledged him as the pioneer of the Ifo:>dern
positivism. Austinian approach to legal theory has been commended for its
clarity, consistency and simplicity. Dr. Allen remarked "for a systemetic
exposition of the methods of English jurisprudence, we will have to turn to
Austin."
Austin's contribution to law has been greatly admired by the
contemporary legal thinkers like Bentham and J. S. Mill. They denounced
SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) 35
natural law philosophy and excluded all ethical notions in his theory
of positive law. Sir Henry Maine observed that, 'no conception of law and
society has ever removed such a mass of undoubted delusions. The merit of
Austin's theory _of law lies in its simplicity, consistency and clarity of
exposition.
Austin's theory was later improved upon by Holland, Salmond and Gray.
Denouncirtg Austin's view that sovereign is the sole law-giver, Salmond holds
that law consists of rules recognised and acted upon by law-courts. Gray also
held a similar view and remarked that law is what has been laid down as a
rule of conduct by the persons acting asjudicial organs of the State. Holland, in
his Elements of Jurisprudence, accepted command as an inseparable element of
law but defined it as 'a general rule of human action enforced by superior
authority on his subjects'. These modifications in the Austinian theory later
gave rise to the emergence of Vinenna School in subsequent years.
Erskine Holland (1835-1928)
Sir Thomas Erskine Holland was a Professor of International Law in the
University of Oxford who followed the analytical approach to jurisprudence as
propounded by Bentham and Austin. His legal philosophy was more or less
based on the Austinian conception of positive law. He wrote his classic book
Elements of Jurisprudence in 1880 and published its 13th edition at the age of 89
years in the year 1924.
Holland characterized jurisprudence as the 'formal science of positive
law' which are recognised as having legal consequences. He pointed out that
jurisprudence is not a science of legal relations a priori, (as they ought to have
been followed) but it is a posteriori, that is, the law which has been actually
imposed by the state as a positive law.
Holland rejects the Austinian division of jurisprudence into 'general' and
'particular', because he treats jurisprudence as a science and a science can never
be particularised. On the analogy of geology as a science, he supported the
theory of general jurisprudence which has universal validity like any other
branch of science.
Professor Dias has, however, -disagreed with Holland's comparing
jurisprudence with Geology on the ground that the substance and forces of l~w
are not the same everywhere. 1 Law being a social institution, varies according
to the varying traditions, values and structure of the society.
Buckland has also criticised Holland for not accepting the 'particularity',
of the jurisprudence and comparing it with science of geology. Law according to
Buckland is like the science of biology which is capable of constant gro;wth and
change with changing times. Salmond and Jethro Brown have also criticised
Holland for his rejection of 'particular' jurisprudence. Salmond says that
general jurisprudence is not the study of legal systems in general but the study of
general principles of a particular legal system.
1. Dias: Jurisprudence (1964) p. 116.
3t,f.

~irJoftn::.~aIWt~nd'i(J862~1:'924~ us td:H:' b;<s. ~r;f; ·cr~r:)2t.,_ ~ifkr ;''d ~_B1n1r.in

_on£_$tfJob\{Sttt&@Uf~'ii~i bdrri.:1nl·1!p.glfil\u mtt~rd ~anBer, ·1'862.'.JffEhv~s k,)
1iia1 ¥lii9tiiV arla ~l~plr~if?"s'~a~W.~s1(al§tf WJtl~ger~~~- ZealaitdfiSam\oiin2
0 1 1

gtad'G~l~lf fftjffi. the"Uriiv~fsity·•,'.of·Jrna:flf:irl:11ss2 ~ith B'a'dletor1s{~ghie' r~(f1t\

Master's degree. He migrated to New Zealand in 16J6. He came to stuoy-iaw'.:in-"
Uf\i~jJ¾; Qf1k@4P-n. m19i t~nn~p~~.Jq~glt){;~~µ:rgk~&§?.~}:Yij~ ,Pmmt,~d as
~~~'4\:[Sql~<;itt>,)of..ttieA~~Rt!~ ~&~.; i!:Nt!~17~~"itW.~18.9i~x-i9~~

:;:1==~~=it1::;:~1~~~~=t:~:~~=~r~;~!rr:~::
Vkt<lri~f !UNV~:_,,Xpjlftg~J:.iW,~~RP;•@~t~Q-.7~ ~~c~AA1c!PP~4J.t~ftyij~,~O.W"':~h
tQ : L~w:nl~,rji~ :~{-fj~~r;rm.Q; l§l;~~"I~PP9~!~~t,--,:~ ,$9~t~tt~r~~~~ra!"' :·~ffl.~q.41
was, ii.lffPP~t!.~4~~tt.h~Jqqg~;qf :\b~:;$.µprgll:.\~.J;;:qyrt,p!;}'JgW:~?~~~\tm rJ ~mr~ J
wm-ke<;i.-:in;tb~\~pa.~iW lMl-tihl;t~(4~~t~PD;J-9Jh,~Pl,teiv:~;,Jln1fri !'JG ~.fr: C:·c"!!lJB
S~lmond authoret!1)tlµ'.eeibookstw-Wich 0:are::co'risider:~~~s,·his~:dassi~<'works_g
and unique contribution to the field of law anf1J\:\rJ~}?.fbl~fi~-~- ~~~e__ ~-~e .{!ly
Jui;i:sprude~c~ & _Legal. 'J?~ory, (2) L~w of T~_rts/;an.~ ~~)-'·F~cifJ1~st-<?.r£~J-=oF
C-00.tra~t!L-,J u:1;JC.d.~ {:; n--r~) J rti. 1.t) .. t-r,;;_.~:-:-::'.~d!:/,;-J :.:: ? rr-.1-./ r::r?.b.i !{}f-·.i ~.:ir.u~/ ,~:"i !J ~tsJ11()ri; 11<-:-~

1~~!1i~~i1i.~1t
law' ,aenof· s ._
:_~~~l~J,{Wt&~;\tltt1J:it~t~
of.iivi( f w::'the te ., . ''dvu fhe' laW! . -f ~(State·.ase·adin'irilstered:' rt':'
c~u'.rts_.;tJ'•4~ttta~~JtUi~t iMt6rii~;-!Ha flia1diirpf&Ja;r-~'J'. ttf~gfW~t w1~:
both Austin and Holland that jurisprudence is a science1 wli:fcn' 'irivo1V-~s'··

~~t~;~~~t&:.~~i:;t~!,!:::!J:~~=~:f!!~:,
Cdttrt:$ }'bf!1asw~ ·sa1hic5nd'- ·was against: iftttnontilig'-iUr-isprude:fice:· gen.eiiaHtylo:r !
ufil\i'~rsa.1ify:;'Jrid'htild1lthat-'lh~ + jiifisptUdefttza:·; "gerlefali~ -i i. isU~otbth~·--s tudy:ofJ
legal systems in gener~l, but the study_',of 1geti:e1'a1'~ipt:indples ~ Ja,rpdrticular~
le.gal syst~~~ '•.· :. :i, ,:., '.L.:i:. 1· , , , ; ,~; ., , '.:: , ..:; ~, :;> ,., t, .', ..,,;; :.,.-:, / ',-,Y. ::
o'·; C: iif'! Ail'·'.,;·),· ;; (· ; ;· , ,·.:
,j

''! -,,,.;:. / •·..;,:· l·', :; ,: : . ,··;: ?1'!.~ '·' )''.'; '.) ;"{ ':;i'',;_: :;:.::Y:; '.;i ·.· ., ,:;Lu ·_ ·,:J ·;_ f/:(

,'~'. .,~:,,i~:~'~iti~~iii¼~t~i~004f-'i:t~~g'.;giii{~;~it:
'particular' jurisprudence reached its logical concfosion::·wheh.· ~- ~~~/ ~U~n;i,rt~.q.,
t~ ;~1~Rt~ ~y1;:1tr~~A ,~rr~?tc}~1:1 ~~-;~~~-- ~~~! -?U,~~;-;;0 r:: ~~f\.~~1F~~~~,~~:~~ted a.<
1
~~n;qw _y1_e ~ ·\jy conf111-111g th~. sp:i\f,y of Jttrtsprudence~,to :Qn~ _particular legal .

~!!Y5f!t:,;111f:l!~:~?~i~~1£~il~il11~~1i
holding; that-'jut-ispr-ude~ce;is1 scientific synthesis' :of the; essentia.Lp:ciriciples of
Iaw:l 1these ,prirtcipl~s:,are::-always -subject toir~visiopror,even·wjection; accqr:dihg, 0

to 'needs 'of-.~eartd;placel :·· ,· ., ,.-_ .. . ,_ t: ;, •.,,. :>:</., •,;! i i 0,:- ·· ;, ,;l>!~-: _J\
'- ' , · . ' · · i : .. , " · , · · :° • ... . · .·. ,._, :·· · . · ,· · .~ : - , · . . : •. .· i ., ·, ,' • · · ; '. :·r(' .- ,,·• · :° ·· -.·: , . ,· , - .• C -: :: • · :• •

fl~L:A~ 'Hatt's Cdntributfon· to Analyt'k~l' 'Pd~i.tivism;: . . ' '' ·.-: ,.. .

~~fti~:t'~f:i~!~tt,¥t:~~,l~~J~l~.ll~~ijti~~iii
L Salmond : Jurisprudence (1947) p. 3.
2. "•• C. K. : Essays on Jurisprudence (1931) p. 27.
 JURISPRUDENCE AND LEGAL 1HEORY
binding force depe11ds upon its acceptance. For example, whatever is enacted by
British Queen in Parliament is rule of recognition. Again, the various
constitutional laws Which constitute rule of recogrution are rules of positive law
which are binding on citizens, officials, legislatures, Courts and various other
governmental agencies. ·
Thus, it could be seen that H. L. A. Hart',s conception of positivism
centered round the following considerations : -
( 1) He accepted law as a command as advocated by Bentham and his
disciple Austin ;
(2) He believed that analysis of legal conceptions are worth pursuing as
distinguished from mere sociological and ·historical inquiries.
(3) the judicial decisions were to ~e deduced from pre-determined rules
without recc.,urse to social aims, objectives, policy or morality
(4) Moral judgments cannot be defended by rational argument, evidence or
. proof;and
(5) The law as it is actually laid town (positum) has to be kept separate
from law as it ought to be. · ·
Hart's Views on law and Morality
. H.L.A. ~lart <i()es not denounce the role of natural law in his positivism.
Unhk~ Austm and Icelson, Hart contends that it is necessary for law and
moral~ty ~o ?ave_ Cfrtain element of natural law as a logical necessity. Thus
morality ts 1mphct in Hart's positive law which he describes as union of
primacy an?. secondary rules. As a member of society, individuals feel morally
bound to ao1de by these rules both as a matter,of duty and obligation. Hart,·
therefore, asserts that law and morality are complementary and
supplementa_ry to ~•ch other. In his view, there are four attributes of morality,
namely, (1) 1mpolitanee, (2) immunity from deliberate change, (3) voluntary
charact~r of moral offences; and (4) forms of moral pressure which separate it
from etiquette, custOlh and other social rules. The rules of sexual behaviour
provide the best ex.ample of morality.
Criticisin~ Qevlin's view that· law demands certain standards of
be~aviour or mQr~. ptinciples which society should observe and the breach of
which should b@! 1111\ade punishable as an offence, Hart observed that a balance
has to be drawn ~tween the freedom of individuals to have intellectual and
artistic !reedom am• ,the duty of the law to protect society from depravity and
corruption. He acc~pted that morality is a necessary condition of society and
the law has a functiOh to ensure that morality of society does not disintegrate.
But he further addQd that "law's function is only the last line of defence; other
att~mpt~ to presei:v-e the accepted morality should come from within the
soc_iety itself e.g., through education, the mass media; etc." Hart firmly
beheved that some '1\ared morality is essential to the existence of any society.
SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) . 39
H.L.A. Hart's concept of law has been vehemently criticised b~ some jurist
notably, Ronald Dworkin and Lon. L. Fuller. Dworkin deno~ces Hart's. view of
law as a union of primary and secondary rules and exclusion of morality from
law. He drew a cmtinction between 'rules' and 'principles' and pointed out that
a legal s~stem cannot be conceived merely as an aggregate of rules but it has to
be based on certain .solid principles arid policies. These principles are broad
formulations of generalisation whereas rules are detailed precepts having a
distinct and definite effect, they are more specific than principles. Dworkin
further observed, •a principle is standard that is to be observed because it is a
requirement of justice or fairness or some other dimension of morality<' For
example, no one can take advantage of his own wrong1 is a well estabhshed
principle of law.
Rules, on the other hand, are applicable in an 'all-or-nothing fashion'
and their distinguishing feature is 'reason'. Dworkin points out that judges.
have the discretion of creating new legal rules when the existing law is silent
on a particular point or does not provide necessary guidance in a particular case-
situation. ·
Lon Fuller has also criticised Hart's theory which holds that there is no
law other than the rules of recognition. He believes that legal system being an
instrument to regulate human conduct, must concern itself with both law as "it
is" and "as it ought to be". This, in other words means that law cannot be
completely divorced from the concept of morality. Fuller maintained that law
is a product of sustained purpose and efforts which contains its own implicit
morality. He says laws may .be of little service and may cause both injustice and
misery if they do not conform to the "internal morality". According to Fuller,
eight conditions which constitute the internal morality of law are-
(i) there must be rules,
(ii) the rules must be published,
(iii) retractive legislation must not be used abusively,
. (iv) the rules must be understandable,
( v) the rules must not be contradictory,
(vi) the rules must not require the co~duct beyond the power of the affected
parties,
(vii) the rules must not be changed so frequently that the subjects cannot
guide their actions by them,
(viii) there should be congruertce between the rules as announced and their
actual enforcement.
As a modern naturalist, Lon Fuller believed that "law represents order
simplicitier. Thus "good order is law that corresponds to demand of justice or
1. Riggs v. Palmer, wherein defendant's rights to inherit under the will of a man whom he
murdered was challenged. .
=1:rf~W:mfi1~l¼rui~e~i?i~;r~;:~ ,:;~:?·1
or normative law lies in that the former is based on factual notion of law as· it is
Wbile:'.t he .fatter"' sdught fo .study' la¼f'fr~rtl', philosophi~al, ,:a ~'s tr~cf'aria- id.ea,l
angle with refere_n ce toi~cmility; reason ~d'consdence; 'alt df '\-vhicKare ·beyo~d
the · humari, power; .corifrol ·and authority. lt ·is With· :refotetii:e 'fcHhese· ri.6rins
thafthe 1a:w-explairis what is good a:na,-what is"t:WiHiliff bringsiout dislincfiorl
between right and wrong. Thus, positivist approach rejects a prorarifesfa'nd
~aims .b_e: mor~ ~~alisti~ an'1 scientific in. ~terprefu.\g..-a,µd '1.pplyi,ng :la,;w in a .
~yf!n society. The-r~-is:110 placE?:fo;r.hypotheti~al assµmptj.011s:bc15-ep PP.; xnor<:ll
cons_iderations· in po~~tiyist's approafh:.3 >: , · , , . . ;,<> ·. , . '" ,
Taylor in his: treatise 'The Conception of-Morality ' in:Jurisprudertce' has
stated that morality ·emanates from natural law whereas •law emerges from
absolute. obligation, morality exists in abstract ·form whereas law exists in
concrete form, ·t_h ough .both have a ·separate·existence but they 'are·components;of
a single · phenomenon. Morals are modified and adjusted ,with changes in
society, 1.:-vhereas law~ which is characterised ,as ·an inerf ·normativity, needs
outside force of the state to be set in motion. When indiviciµal n-u;,raliti~s l>egin
to clash due to changing norms of the society, it calls for enadment of a law to
lay down common standards of behaviour. Therefore, genetically morality and
law are complementary.4 . . .. ·• ..
Expressing similar views, Salmond ()bserved thatlaw made l;>y I,egislative
devices may be altered by amendment. but moral rules cannot be so changed by
legislation. Moreover, legal rules are aineiiabl~ to adjudication· whereas tnoral
rulesare ·J:l.Ot.
Yet another distinction between law and morality is that law is meant to
rt?gular external relations between individuals whereas morality regulates .the
inner life i.e. conscience of man, it is not extemaL .. . __
Friedmann also observed that there cannot be and there never has been-,-a
~ti~plete separation of law and morality. According to lµm,. th~re is ·~ distinct
interaction between law and morality but this by itseif does nof permit a law to
1. f111:}er: "Po~iti'l)ism & Fidelity of Law A Reply to Professor H:Ut 71, H~r L.R·. (;30(1~57-5;)_ ·
· 2. Fuller: Law In Quest of Itself (1940) p. 12. · · ··
3. S. N: Dhyani: Fundamentals of Jurisprudence (3rd Ed 2004) p. 208.
4. T.W. Taylor: The Conception of Morality in furisprudence, (1896), PAO.
qught'
1,,~:;i:~j~c.te,p._. O.Ji',,tl}~,gmµ.µ4 ;9fJts.-moi;cµiJy.:\ M9r~l_itY,.1.>,~-m g .fu~ :v~wJ9YI1gat;i9~p!
~yery\_,c~y~l~~p. ~oci~!Yr,1~al\npf; :b~.,,<;9w.pleJ~\y :;c.ii;yPfAe~ Ji;'?~l Ja~i~:lf~W,M1~::1¥1.
instrument of justice must imbibe morality to a certain extent in order t~,~f.l~H!-~
tha.t sod~l fibr~ ~ftl;ie ~~cietyd~es ne>t• degene~ate. . . . . < . . .· .· ·.· . ,. . ,
nafurahsm and rieed for respec\f?i;- la,w t,o mc11pt~11:\?,~d.~~;~ ,sgfl:~tt, i.- .;<, . . .. . _ , ;i -)"
Hans Kelson (1881-1973)
. ;. ; ,H~~ : -~~J~.o r ·'. w~s, ,a~~rh,ei;,J~ri~t. ~~<>,
h~,{ J~~ );r~~·f W'.f~yif~-~$·"·-'t!hi
ori in.al anar ficane arthou ·hf in the·zoth cen:ru ·'_·throu···h his' 'Piitl'Theo
tt%,~ifiit;1J;~~l:!aiiJ£t;i{i~1~t,~\ttitifi
E1:tglcmd. He came. to U111ted States andworketi ~s :Profegsorof LaW' In severed
t;i~trsit:::s:!~lir;:i1;~t.ti;l~ttJ;{tt l~i~tt:ti~t~
Theory of 1.aw· which is considered to be Kelson's uiiique 'confributUn\ 'to·1eg.a l
t_h_-~P. ry: . . . . . . . . ... . ....... ·· ...- . ,.. . .·· .. ,, --.:;_
: .' ';J ; ..'; ·:.:~)iii
Kelson'sTheory of Pure Science of Law , : ·· ;'. ; · · ·,
k~lsort '.did not favour
widening·the scope df jiirfsprucferice hy\~6-re_l&ting '1t
with · allsocial sciences and rigorously insisted ori
separation o(l~W · froift
politics, sociology, metaphysics and all other extra-lega:f d:isdplines_Y-ff'is .
quiteoffen 'said that Kelson's pure theory of law fried fo :rescuejurisprildence
_ from vague mysticism and thus it was in a way revival of Johri Austin'~d'9th
century ·analytical jurisprudence. Like Austin, Kelson divested mor:a1, ·idea~ 'or
ethical elerrierits from law and wished to create ·a 'pure;; science oflaw devoid;of
all moral and sodological considerations. But he rejected Austih'ff'defiriitiofrof
law. as a .command because . it intrnduces subjective ·.cori.sideratibns· wherea~ h~
wanted legal theory to be objective. He also discarded the notior ·of justice as ari
essential element of law because maii.y laws, though not just, may still coritihti.e
as law. He defines 'science' as a system of knowledge or a 'totality tof
congnitions' systematically arranged according to logical princ,tJ?:lrs~.~elspfff
grundnorm is analogous to Austin's concept of sovereign wi(hout whicr law
sannot be obligatory and hip.ding. Thus Kelson'~ pure Jlleory pf J~.\-Y is -. _a
L Friedmann :Lega!Theory(l960) p. 309:
. 2; Dias R. W. M: Jurisprudence (5th Ed 1985) First Indian Reprint (1994) p. :33.1, ,
· · · · 3. Kelson's main works include AustrianConstitution (19';.0); (;en~ralTheory of ~w ~nd ~tat~
(1945);The Pure TheoryofLaw (1934); What is Justice (1957); frinci~les of Intern":"tional 'La,~
(1952); Revised Version of Pure Theory of Law (1960), etc. · · · · · '
 42 JURISPRUDENCE AND LEGAL THEORY
theory of positive law based on normative order eliminating all extra legal
and non-legal elements from it. He believed that a theory of law should be
uniform.
Kelson's theory of pure science of la~ which is also known as Theory of
Interpretation was a reaction against vicious ideology which was corrupting
the legal theory and the jurisprudence of a totalitarian state. He
nomeneclatured his theory as "Pure Science of law" because science to be called
rational, must stand in a two-fold relation to its object, viz., it determines the
conception of the object and establishes its reality. The former is theoretical
while latter is practical. Kelson claimed that his pure theory was applicable
to all places and at all times. It must be free from ethics, politics,·sociology,
history, etc. though he did not deny the value of these branches of knowledge.
He only wanted that law should be clear of them.
Law As Normative Science
Kelson defined law as the "depsycholised command'. He described law as
a 'normative science' as distinguished from natural sciences which are based on
cause and effect such as law of gravitation. The laws of natural science are
capable of being accurately described, determined and discovered in the form of
'is' (das sein) which is an essential characteristic of all natural sciences. But
the science of law is knowledge of what law ought to be (das-sollen). It is the
'ought' character which provides normative character to law. For instance, if
'A' commits a theft he ought to be punished. Like Austin, Kelson also considers
sanction as an essential element of law but he prefers to call it 'norm'. Thus
according to Kelson, 'law is a primary norm which stipulates sanction'. It is
called positive law because it is concerned only with actual and not with ideal
law. Dr. Allen has described Kelsenite theory of law as 'a structural analysis,
as exa~t as possible of positive law-an analysis free of all ethical or political
judgments or values'.
According to Kelson 'norm (sanction) is a rule forbidding or prescribing a
certain behaviour'. For him, legal order is the hierarchy of norms having
sanction and jurisprudence is the study of these norms which comprise legal
order. He distinguishes moral norm with legal norm. For example, moral norm
says that 'one shall not steal' but since it has no punitive consequence, it lacks
coercive force but if it is to be reduced in form of legal norm, it would say," if a
person steals, he ought to be punished by the competent organ or State". This
'ought' in the legal norm refers to the sanction to be applied for violation of
law.
The 'Grundnorm'
Kelson'~ pure t~eory of law is based on pyramidical structure of hierarchy
of norms which denve their validity from the basic norm which he termed as
'Gr_u~dnorm'. Thus Grundn?rm or basic norm determines the content and gives
vahd1ty to other norms denved from it. Kelson has no answer to the question as
to wherefrom the Grund norm or basic norm derives its validity. He considers it
to be a meta-legal question in which jurist need not intrude. Commenting on this
SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL} 43
point, Julius Stone rightly comments that just as Austin's .sovereign in a
particular society is a mere starting point for his legal theory, so also basic
norm has to be accepted as a hypothetical starting point or fiction which
gives a legal system coherence and a systematic form. Thus wh~le all no~s
derive their validity from the basic norm (Grundnorm), the vahdty of basic
., norm cannot be objectively tested, instead, it has got to be presumed or pre-
supposed, Kelson, however, considers Grundnorm as a fiction rather than a
hypothesis.
The Supreme Court of Pa_kistan in State v. Dosso, 1 had also upheld the
Kelsenite theory of effectiveness and validity of revolutionary_ government
which had come into power by overthrowing the legitimate Government and
destroying the previous Constitution. However, this decision was subsequently
over ruled by the Supreme Court (of Pakistan) in Jilani v. Government of
Punjab,2 which rejected the authority of the revolutionary government by
overthrowing the existing regime. The same history repealed again in Pakistan
in 2007 when the Military General Parvesh Musharraf removed the Nawaz
Sharif's popular Government in 2007 by military coupe d'etrat and assumed
reigns of Pakistan as its President repudiating the Constitution to suit his own
dictatorial military government. He legitimatised in coupe and declared an
state of emergency in O~tober 1999 and suspended the Constitution and closed
the Prime Minister's office and put Nawaz Sharif in Jail. He asked the Judges
of the Supreme Court to take fresh oath of allegiance to his new military
government and remained in office as President from 2001 to 2008.
The present conflict (March-April 2013) between North and South Korea
has also put the grundnorm of the Government of that country in jeopardy.
These instances clearly shows that Kelsenian grundnorm during the
revolutionary change has to be determined by the political and extra-
legal expediency in the context of the prevailing situation and changed
conditions.
Kelson recognised that the Grundnorm need not be same in every legal
order (State), but it must be necessarily there. It may be in the form of a written
Constitution or the will of the dictator.
Pyramid of Norms
Kelson considers legal science as a pyramid of norms with Grundnorm
(basic norm) at the apex. The subordinate norms are controlled by norms superior
to them in hierarchical order. The basic norm which is otherwise called
Grundnorm is however, independent of any other norm being at the apex. The
process of one norm deriving its power from the norm immediately superior to it,
until it reaches the Grundnorm has been termed by Kelson as 'concretisation' of
the legal system. Thus the system of norms proceeds from downwards to
upwards and finally it closes at the Grundnorm at the top. The Grundnorm is
1. 1958 SC Pak 533.
2. 1972 SC Pak 139.
~~~J§j\lk'it\~1Mi:!:~1f'1~/it!.?Mri;~
F~-r-
~x~' f:i·.a\ 't~{' ' ;_"if : r:tlt~R;
vtmafii~~
,'r -th
fl ,il W{"FHt,~
' ~r,? 'tlff},\Q{m--; c:: i {I :S HEJ!:1_{ . :) J :':HTI . G
1 ::;l~~}~e,':;~!~~~tt;t~~t-~~~:;·I~i a~r{~i~~Jn\r~i~cien~~:, ;~~~~1~~,:~c:~~~~~~"
1

: ,. ,fi >.-, r,,P:~, . -J, ,_-~~J? ,_ ;~,'W}~,Yc:l ,,..-, ,fo~~~p..$e_,_,Jt_.P-~PV~$_.;!J~__ J~ga_ l aQthorit::u from
t~~J#~latfx.~ :J:>04y;.':;rne;J~gis,\~tii~J~qax.-Ut·~tts'-,oW,Q~iMi4-ta~-i:it~silts<Iu:1mAt~ f.fi( ; ''t 4.!K~f~cik':;:piti~~li~~ry·:~f i~w'.1~l·w;~~{_i );l~Q,m~}~Jf ~3,¥~~.{d#~~m~~t
1

with the effectiveness of the legalnorm~"'' .~ .,. '· ., ... - ·'· ' ,,,., .' ... . . -
f¾~~n~~~~~:-~g~J~~ ;)wi).iiW;s~~«~.f
CC ,•.

f_iPm·t~?t".:R mi;d;I;e'.; J~~f.ft

C ,\ ~*f&fuf~tt·h :\~f)}P
...,PP~}," 't-}~~. -" ~r~v,~,~ ~-,,s ,v~1~q1,v, , _e;r~-+ J:!,,:_n~La.p..$.~~r__ ~d,: _t}:ierefore 1t 1s the
<;;w~9TTD-,~c~pr4wg·fq_!t<~l~Rnit~ ,¢,~~c~1iljon:9t~µf~':WM{rlgii~~:ih'hls
'{}t€~ ~~~;!i~hl~~ll~~~~~,! !t~~~~~;~,~~ift1C}!l~~'Wt.t~~;1i{"P,~lii,¼~.:Ji~,1~
fhe .basic norm is the··'result pi;1f of s'ocial; ecoiloniic~
'ritlie'.~t'6ridifi'6ii~ t1~afciria ~P!~~~tjgjJ,~ _J>(r:fS:'tl~m1.~~ 'fl,te9ry,l~µr~ -, $.cl~nce9fi~w,
and it is supposed to l;>e valid by itself. ·,: '" "<,~ ,:; -: -.; ·{ n
\_
: '.·: .: /: .: ')f 1·"'{;__; <: i'.·. !>5 · ~~:;;:; ; ; ; .-:·_;'; ,_ : :_ .: _/ ·J .··.-' ~r\ ,;/ ·; ?; f .!. ~' f J.:::;. _t.:::i A r;(_l 1c~ 37.r.:·{)~~~-; •-3n--_.;-·: :-;/~~;: _:;-~ ~~:-:~ -~_-'_; ·u ,; ,<~elson'-s 'pure thec>ry ,of:law:covers a wide ·spectrum '. of .legalconcepts :such
,·; The, lega-1 . .order.,a.s ,cort.e.e iyed ;byi I<elso.n::.Jre~iYe$:,its :tun~ty,,€:rbrn-:th!a;c{c:1~J as State, sovereignty, privat~r:an4 :p.ublk la.w;legal personality; <rights :·and:
that all manifold norins:.c;>f;whicp,- ;the~Jegal'sys,tem'->is(c~mposed,,cari., be traced ~\l:~l ff;;_.·,6±,;;;c,: _; n c,·_:t 2.L::; ,;;,;;_ '>i i; -r,,_; : ·•::, • ;· >_ j . , , . ,. .

_ba;ck fa
a.-final source, .-This:1f.inat s0urd~ is,the jbasic'}\omt -orrthelGru:ndn'Orm /tn :'·,·Ac;cor~ing:to_Kelsbridaw.and State,are not,different.hu_t they are,irnfact one
w~iFh:he det.ined as·'"th~l posfu~~ted .Jtil,tirn,atei ru!e:;-~atcoraihg'.'. fo iwkidf·'th'e a:hd,the.,sam.e:.,Likewise;,tht;reds rio -differencebetween publiclarid ,privatelaw.

~tt;~t;Et~".~. order' .a,re···. ~,~~t?~:!:;'.tt:~~;1~1r~I;~:~;~r;·b~:ld~;;,~n.e,'.:
( ·: ·.. ; LKelson :eharaderis~d faw,,as a;tech:hique on social.:0rgarusation;;I-t;is nb.t afi
end, but is' .a specified: .'rrteari.Sjias~J{rij apparatus! dfi compulsiorr ifo:i 'whith - there
adh~res . ri'o 'political ·o~ ethi~al~:,\falu~ri~tcotdirig:,fo n1rnf ~!Jawr-i~ 1not !atf 'eterri~l
sab-ed order, bu:'t a -comprofu1se -bt battling 'gi6'cial ffdri~s'!l aria. ·merefore ''the
concept of law has no morafconn6tations\vhatsoe\%:r." ,., . ,';:-~ ;- · - ,: · .' · -: -
..·. ,. ~s a ne~essfl:YfOni~✓,er~;; p(, tfi~,
lo~e~ l~S '. ~pphcab1hty, ¾'hen_ a n~~ •G~:Ye1JU!lell~;~O~fS -~~o _eo~~er overf~rowing
the ex1stmg Government by rev?lution. I~ '.flj~t- ~v¢nt the :cotlns a.re 'cohftonted
with the problem whether· toicbrittrhie'.applyirig/ th'.EPfawi' ·ciHhe bverthrowri
:regil.Jl~ ev~n thoµgh they are no 191]lger ~ffectiYf>or tq,~pply?Jh~).;iws ..intrqduced
by th~ n~w revolutionary g9vel]llll.~p.t'. wlij~ -,c:lr~-)aqltjJ:lg Je,gttjnJacy ~-There:is_n.o
µn~nimity .of•judicia.l opinio:n in this .:r,egard. J._, -Jt µi.µst 1 :l;to'.wev~r, be .~ta t~d Jhat
this being a matter beyond the ptirv::.ew of jurisp~dence, has to be ·clec{decl
accordin~ to political ~xigencies of the_ ~~tu~tion~~d g~neral accepta:ti:ce_~y ·th~
people: · · · ·•· · ·· . · _,,•· ... :> ,., ,,·_,; :, >.· ·•,-r-; _:-~··; · ., ,-
Kelson:,:_:,also. Jdenies,..- any,/le.gal 1,diHerence· '.'.be.tween'.•' na tural·;-:and ,juristic:
persona.lity, r·For ,,him~:,iall ·.s legal ,; personality:: J.s,; -artificiaL ,ithd·, deriv;es:, its
validity from grundnorm. He does not believe in the existence•:df.incl:ividuali
t~ll.~rtt~~~~:,:;~:.~i::\:~~ili~Yf"1]ff tJie.··nrr,~9,n .• !ln@~~...t~.·t~91'
dgb..ts. ~nd :~!:?l?~~ts.Jha.t ~~leg~l.Ji_t!~i.e~.'~ arn,Jhe essel)c;E;? pf la,w'. Ip hi~ vtew. legal
it;1,,i!~,
<IT-riticiStn 'Of ~elson's'Tbeory:.; T. :)}i·, ; -·_;;;:: • );,; , .' ;'.!;
;,,:_r,ce·-nn~otihh~~iy)···tt\e >frJ~if:''df 't?y~lving ·_a':·no~at,1ib _,he~tf;~f-l af!ides tt?
~~trii.~);~iifrpiJ~.:pf}~~G;Jij4r.9r~,Jt fl ens Kelson. lt-·seeks' to'divesHaw •from •riaforaf law· :a octfiniis ·and :from the:
ei~inent ofjttstite ~hith:: :Was••a ptedbfuimiht ·chaflidedsHc 'feature of '. the'fa~s-
intr~duced .&y ·fa.scis(SJatesia:11d;t?faHtad~ ·g9v-~ inrn'erits. Howeyer, ·:i<ell?'o n's
ptlre·_'the't)''.bf I~w; ~uft~l"s~ from:certai~ ghirihg' defeds'. . .· . . • .. . . .·, ' ' ...·... '. .
s~1~~f~~t¼~~11i~~,~11;t1~i~p~r:~ttti~ro~ii1~d:tJ~~f1~~
··· . .•Se~o~dly, ·Kei~o~'s as~e~tion that ·all the n~nns excepting the basi~ ~orm;
(Grynd11orm:~ .~re 1w:re, has ll<;>Jogic;al ba~h,. ,Q;ne_t"e~Uy fails ,to_µnde!stcmd :as to

Salient Features of Kelson' s Theory.of Ptite-:Sdertce· .of Law .,,

"
· - --~ ✓ .:· '--~ - / - ~ _
:~;:) ; : ,l; : ·t: ~tt,--~_qm,pinq,tiqn'
t)ie
~~i:~~~it~.it~~~\i;~ti~;;tt~b~'
. cf wt
);'t\,,\~t~~trt~#,
y~:r;i()us._spc;faJ. 9 politiraJ ,t~c,t ors a~d _c;ircu,ws,t'1µc;e.~ ;ip .?
given situation . . Co'inment1ng on this point, Julius Stone has sarcastically;
The pure theory of Law as propounded by Kelson isJmp1peg qn c~rtc:l,in re~arked, we are invit~d to forget the illegitimacy of the ancestor in
basic assumptions which may be summarised as foll,o ws.:-. ·: ,· · · · · ·' ' ·_· · · ' ·· 0
adm:itation oHhe pure blood of the -progeny".
· 1. .The theory is aimed at cred~~ing ,c:h~o~:~a~;:,;·~;fµ~i~~;-c~eated by t,.he ... .. . '[hirdiyt tfle ;tlle<>.rY \s
fotmd .to. ~e ba~ed on hypotheticaLconsiderations
supporters of natural law philosC>phy. . , < ; _: : .;_ ,. . . ,··• wi.tho~t ,~ ny'practfoaJ:>,i~ify. Jt is JJ?t poi:;stk}e ,to divest law from the influence of
2. Pure theory of _law deals \Vith. the kn'owledge· of ·what law is, ·and it is p9liticaJ.ide9.lo.g y:and s:o,ciaJ 11eeds. He dcies not consider justice and morality as
not concerned about what law ought to be. . ' ; ..,-: • · ·: _ · · · ·• :: essenti'ar attribut~s .9f law. ... . . -
Fourthly, as stated by Friedmann, Kelson's theory provides no solution for
l , Madzimbamutov. Lardner-Burks, 1968 All E.If 561' ~tt·appeal from Rhodesian Court. This case the conflicts arising out of ideological differences. His theory rejects the
involved unilateral Declaration of Independence by ·Rhodesian Government from Britain•in
1965 by repudiating the Constitution of 1961 and promulgation of a new Constitution in its
element of justice as a mere emotion which is indeed not true. Law cannot be
place. The Rhodesian Courts which were constituted under the earlier Constitution completely divorced from ethics and morality which gives it a honourable
accepted the change which was in defiance of the old Constitution on ~6unds of necessity .. place in the society.

46 JURISPRUDENCE AND LEGAL THEORY
Wolfgang has also criticised Kelson's theo1I as it totally fails to provide
a practical solution or guidance for resolving legal conflicts between alternative
ideologies. One really wonders as to how law can be completely divorced from
ethics or morality and socially accepted values.
Fifthly, Kelson's account of legal dynamics is ,inadequate. _It ignores the
purpose of law. For example, while considering the validity or otherwise, of a
particular enactment, the courts do take into account, the prevailing custom or
the. motives of the legislature and try to co-relate it with the social purpose
which the Act seeks to achieve. They take into consideration the competing
interests which may not necessarily be purely legal.
Sixth~y, Kelsoi:'s pure theory of law ~lso suffers from methodological
short-comings. He ignores the fact that the action of the authority enforcing
law to be valid, has to be in accordance with the procedure and therefore, it
becomes necessary to ?robe into the content of law. Mere use of force would not
validate a law. Kelson's normative system'' being one-sided remains indifferent
to the content of norms.
s~.venthly, Kelson ~aint~ined tha! Grundnorm imparts validity as long
~s ~h~ total legal order remams effective. But this does not hold good when
Judiciary of a State refuses to accept the legality of a usurper who assumed
powe~ by force and is deposed sooner or latter because of his legal order cannot
be said to be_ effective. Thus, in Jilani v. Government of Punjab,1 the Supreme
Court of Pakist~~ ?eclare~ the usu~ers of State power as illegal as they were
~nlawful ab mztzo notwithstanding effectiveness. This decision amply
illustrates that Kelson drew no distinction between effectiveness of legal order
which the subjects are compelled to obey due to fear and force of the usurper of
State power and effectiveness of a democratically accepted ruler whose legal
order they will~gly ober- ~us, it ~ould be seen that Kelson's theory does not
apply ~o revolutionary situations where someone assumes dictatorial power by
usurption.
,. Professor Laski also criticized the Kelson's theory of pure science of law as
impracticable as it is not desirable to free law from politics and ideology. He
observed that Kelson's theory is wholly formal which attempts to create an
'algebra of law'. His theory is in fact an over-reaction to the modem theories of
jurisprudence.
. Despit~ thes~ shortcomings, Kelson's contribution to legal theory cannot be
ignored. His mam qmtribution lies in that, he attempted to break away
with the traditional natural law theory on the one hand and legal positivism
on the other_- 2 He asserted that legal knowledge is free from foreign elements,
such as ethics, psychology, sociology, etc. His normative theory separates
iaw from morality on the one hand and law and 'fact' on the other. · Kelson
refused to separate law from the State and held that law is the 'will of the
State."
1. Pak LO (1972) SC 139 overruling its earlier decision in State v. Dosso, Pak LD (1958) SC 533.
2. Hans Kelson: Introduction to the Problems of Legal Theory, (1992) 27-28.
SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) 47
Analytical Positivism-Indian Perspective
Analytical positivism of Austin, Kant and Hart which dominated the
English legal system for more than a century was mainly founded on three basic
assumptions, namely, (1) Sovereign or Grundnorm as the law creating authority,
(2) emphasis on law 'as it is' and exclusion of morality; and (3) insistence on
sanction which was a coercive force behind enforcement of laws. Thus
analytical positivism presupposes that sovereign or the law-maker is over and
above law and the law is solely based on coercion or force and it has nothing to
do with the concepts of morality, justice or ethics.
The analytical positivism of the English legal system when examined in
the light of the ·ancient Indian jurisprudence would bring to fore certain
interesting contradiction. In the Austinian positivism, sovereign being the law-
maker, is considered superior to law. On the contrary} in ancient Indian legal
system, law is given the highest place by which the subjects as well as the
ruler were equally bound. Thus the law namely, dharma occupied a prime place
in the Indian legal system and the King or the ruler was to rule according to
Dharma. The dharma consisted in observance of truth, non-violence and
rightful code of moral conduct which holds or sustains men together in harmony
and establishes social solidarity. Dharma consisted of achara (rules of daily
routine); vyavahara (rule or decrees or commands of the King) and
prayaschitta (penance). The rules or commands of the King (Vyavahara) were
contained in Vedas, Smritis which described traditions or customs as revealed
and recollected by the Sages (Rishis). They emphasized on sadachar, i.e.,
conduct of a virtuous man. 2
Thus it would be seen that law, morality and religion were co-existing
concepts unlike analytical positivism of Austin which completely divested the
notions of morality and justice from law. The King was ordained to enforce law
according to Shastras. The element of 'Sanction' found expression in the ancient
Indian legal system by way of danda which meant 'punishment'. According to
great ancient law-giver Manu, it is the fear of danda which makes people to
follow dharma. But the king was not free to exercise his prerogative power of
punishment arbitrarity in the Austinian sense. There is reference in the
Shantiparva that a king who does not follow the path of dharma may be
punished. He was to take an oath at the time of his coronation as a king that
he would protect the dharma as ordained by Vedas, Upanishadas and Smritis
and shall fearlessly carry out the laws in accordance with dandaniti ( penal
policy) and never act capriciously. In short, the king was described as the
upholder of dharma. Sovereignty in ancient India, was diffused in the
community as a whole. Thus dharma was the real sovereign and not the king.
The sovereignty of Dharma i.e., law and not that of the King has been
explained in Satapatha Brahmana which contained a passage saying :
1. These were respectively called as Satya, Ahimsa and Sadachar. According to Lord Mahavir
sadachar includ~s five principles, namely, ahimsa, sanctity of life, trui:hfulness, respec:t for
others property, chastity and abandonment of worldly possessions.
2. Pandit, M.S.: Outlines of Ancient Hindu Jurispn1dence, (1989), pp. 2-3.

.· .... -,5.i~~e Ia_~ is t~e .K~~-~~ ~-¥{>~?V~ite,pfie~fuF~d;ri~ia\i;~?~?lruA~
can -~ : ~1~hti~;, .0t~~!fl<the· faw-,
by ,wh~se' ard,.-;~·; -'·1:even · the,,w¢ak;mayrprevail
;i;iiltfiJr1~lf1~1!lt~~~J!ti
India m sofara~ the Indian JUI]~ts :~~sp. sµ.l>,Qtd~~t~d t.ll.~.aufhe>i;izy. o,{ ,th.~ ,~g,
t?. Dharm_a -~~~c~ 1
w-~s abo~e th,e King~. so!~reignty'. _The scriptures enjoined
upon the Kmg,- a'duty '_to rule ,aria .ad_m irtis:t ef wstke in 'accordance with the
~!~k~~~-~~i-~~; was·:~~~ \t~:: frcu;~~~'~r,1H;~
~f'. '.i_~.aid'rtot ~e~v~ its·vali~i~,'~.? t;
' i
f3ii~~~it;~'}}lt!¾l:~s:iif
~2?fctl:f
w~re most. d~~pgtif ·~P~ ~~.t9ga!ic -~q, ~we,,I\?t both~r~.d ·. ~~C>~t.their .i:el,igjqµs.:
hn~. ,AI,lat1~iin ~~~l ~ffqg~rtlY, _~~~~rt~~~.(L~o/. is_}Vh~tfsiy .~~~F1;19'( wlf~f
Qt1r~n s~y~ ·-.~r~t~.m .,!mr.~;:':V~f~ 1).1~}\Jy ,?i.5:f,rtqpnc,itpry a11;d .,~¢r~·,-;diffir,en~lf
appli~df?r ~~S~l~~ ;~d ;H~?U.S,., ,1.~y;~TTY l~rg~,,:- tl;i~r.e :was)larply ~~yjurisHc:_
contt:i~ttbpn /'{ _t~~\-'M pslF,
fylers ;t.?_; thf.
cieyelpp~en~ .of. Ind1ari' legaL -f~e'cn:y;
~xc~ph!1? ~~~t ~t .de:-~tab~1~e_q._~he .~c1ent .legaJ system c1~d thus hampered' 'th:e,-
cause of JUShce m India. · · · . · ·· · · · · ·· · '· · · '·' ·
0
'. '. '!11~. ~d ~ept t~Im:~h, n~le }.1;1: I~?i~ b!~ught .about radi cc1t changes. in ' the.
0
!~~n ex1shng)~g~J,.s}.'s,t e~: Th~; ,~rnpr-9vh;~djystem w~~ l>asecl on 'British
Im~eri~lis,m \V¥0 ~<>ll$~t!9.f111f10~,e;E~glJsl-i)aws and pqH.t i~~ 'ins.ijht,tiq~s-k ,
Inclia,, N.fac:alllayr- tll~.~cl~-M~mber ,?f tl)e Gqvem9r Gep.era}-jn.:Council, rejected'
the 'anc~~nt }nd~an: l_egal ~nd, poHtic~l)nstitutfon.s . as 'de>tages., ofBrallminkaL
supershh9n ~4.co:i;id~~~,ep..Jh~m. ,~s. 'an c1pparattis of cruel absurdities•~2 Sit
Henry Main~, . the ·a~th:e>r . c,f .. f'\ncie..nt Lal{}, cri.t icised . ancient Ind}~~f
J1:1risprude~~~.: ~s; ;an 'ic.J~~l!stk iiriaginati?n'3 1vfacaulay gradually introduced
the n;otions. of ,.B ritish jp~~~.tk ,.c orce}?ts thr9tigh equity, justice. 'and ·g~o4,
conscience and brought: ab<>:u..,t ~odificapon 9fJa\lVs .•These codified .Britishla\-VS~
we~e ~kinto Austini~n consept oft.o~i-~ ~yflaw hayin~ the element of ~frt<1irlt)l~.:
defi~uteness, · effective ~Qforc:e~ent An.?- s,anction'. . The British I<ing ·.· _ii(
Parliament was . the su,prem~ sov~r~ign authority _to .make .laws for the
gcwemance of Jndia and tlwy :vvere above law ' enacted for India. Th~ .Indian
legislature had no auth~rity tochang~ .law:, J'l:le subjects were bound to obey .·
these laws._ Thus all ~he characteristic~ ?,f positive law, namely, comntand,:.
d~tf, sanction: sove~e1gn tt~. wete prese11t in the legal system introduced. by
~nhsh n~lers m India. It 1s m this sense that the analytical positivism fourid
its place m the Indian legal system durin3 the British colonial rule.
1. Sen Priyanath: General Principles of Hindu Jurisprudence, (1984), p. 17.
2. Q~oted from Dr_ Dhyani's Fundamental of Jurisprudence-..The Indian Approach (1997 ed.) P- 143.
3_ lbzd.
SCHOOLS OF JURISPRUDENCE (ANALYTICAL SCHOOL) 49
The post-independence era in India necessitated a fresh approach to the
existing laws which were hardly suited to the changed socio-economic and
political conditions of the country. To make a beginning in this direction, the
Constitution of India was drafted which came into force on 26th January, 1950.
It can be termed as Grundnorm in the Kelsonite sense because all the statutes
and legislative enactments derive their validity from the Constitution of India
whose validity lies in its whole hearted acceptance by the Indian community
without any exception. In fact it is pre-suppo~e;d to be valid. 1
It must, be stated that the positivism in post-independence Indian law
differs from Austinian conception of analytical positivism in the sense that the
former seeks to establish harmonious relationship between 'is' and 'ought',
that is, it does not ignore the element of justice or morality from the law, while
there is no place for these elements (i.e., morality and justice) in the latter. The
approach of harmonious construction adopted by the Supreme Court in deciding
the cases involving conflict between fundamental rights and directive
principles provide best illustration of fusion of law with justice and morality.~
However, Supreme Court adopted a rigid positivistic approach in deciding the
case of Tilkayat Shri Govindlaji Maharaja v. State of Rajasthan, 3 wherein it
ruled that the firman of a ruler is law by which subjects were bound legally
without any exception. This view is analogous to the Austin's supremacy of
sovereign as law-maker. Similar positivistic stand was taken by the Apex
Court in Re Kerala Education Bill4 case wherein it declined to look beyond the
letter of fundamental rights and did not think it necessary to take into
consideration the sociological imperatives which impelled the legislature to
pass such law.
The glimpses of positivism in the Indian law are also discernible in the
draconian enactments of the Parliament to meet the external and internal
dangers to public peace, and integrity and security of India. The security
measures such as Prevention Detention Act, 1950, MISA, TADA 5 and now POTA
etc. are examples which confer extensive powers to the executive to impose
restriction on individual's freedom are some of the illustrations of the State
despoticism of the Austinian pattern which upheld the omnipotence of the
sovereign- The Supreme Court adopted a wholly positivistic approach in the
historic Habeas Corpus case 6 wherein it was held that fundamental rights
remain suspended during the Proclamation of Emergency and, therefore, the
court cannot go into the vires of mala ft.des of the detention order and the writ of
habeas carpus is not maintainable so long as the right to life and personal
liberty envisaged by Art. 21 itself remains suspended. In this case the Supreme
Court upheld the arbitrary powers of the State during Emergency in utter
l. Keshavanand Bharti's v, State of Kera/a, AIR 1973 SC 1461.
2. See Keshavanand Bharti, AIR 1973 SC 1461 : Minerva Mill v_ Union of India, AIR 1980 SC 1789;
Waman Rao v . Union of India, AIR 1981 SC 271, etc.
3_ AIR 1963 SC 1638.
4. AIR 1958 SC 956.
5_ TADA was repealed in 1995 due to alleged misuse of it by the enforcement agencies.
6. A.D.M- Jabalpur v. S. Shukla, AIR 1976 SC 1207.
50 JURISPRUDENCE AND LEGAL THEORY SCHOOLS OF JURISPRUDENCE (ANALYTICJ\L SCHOOL) 51

disrega~d of imperatives of social justice i:rlforporated in the Preamb_le and Education & Research · Centre v. Union of India 1 ~d _the trend .today is to
chapters on fundamental rights and the directive principles of state policy interpret the right relating to life and liberty embodied m Art. 21 m a manner
enshrined in Parts f1J and IV of the Constitution of India. The Court justified as to fulfil the cherished goal _of social justice and social chan~e. It may,
the unbriddled power of the executive disregar8.ing notions of justice, £airplay :~erefore, be safely concluded that the positivistic approach which wa~ a
and morality which was contrary to the spirit of the Welfare State. The relic of colonical jurisprudence hardly has any place in the modem Indian
attitude of the Court has, however, changed over the years and now there is
setting.
tendet;1cy on the :Part of the judiciary to restrain an.d restrict the executive from
usurping power and exceeding its permissible limits. 1 The influence of Austinian
positivism which W4ts infused in the Indian legal system by the British
colonial rulers is·-n<>w receding gradually and the law is being looked ,as an 000
effective instrument of social · change for the welfare of the society. Far
from being treated Al a command of the sovereign, law has to play a functional
role in the present time to serve the suffering Indian masses. The developing
trends in public interest litigation: and judicial activism 2 have further
demonstrated the futility of the positivistic approach to juristic thought in the
present context, not only in India but in all other progressive democratic
countries of the world. The realist approach to jurisprudence emphasising
functional aspect of law seems to be more relevant and meaningful in view of
the changed socio-political conditions of India where legal system is to serve
the needs of the people rather than being treated as their commanding
master.

Thus, with the adoption of the Constitution in 1950, India became a

democratic, secular and socialist nation wedded to a new legal philosophy
embodying within it the humanistic principles of freedom, liberty, equality
and social justice. The positivist approach adopted in A.K. Gopalan v. State
of Madras 3 by the Supreme Court relying on the rigid principle of 'procedure
established by law' which rejected the view that the word 'law' used in Art. 21
could be interpreted to include within it the principles of natural justice, was
found incompatible with the developing trend of social justice and was,
therefore, finally departed in the historic case of Maneka Gandhi v. Union of
India, 4 wherein it was held that procedure prescribed by law has to be just,
fair and reasonable and not oppressive or arbitrary. In other words, the Court
ruled that the American concept of 'due process' i.e. reasonableness and fairness
was implicit in the expression 'procedure established by law '. This view
further found support in Unni Krishnan v. State of A. P. 5 and also in Consumer
1. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
2. See S.P. Gupta v, Union of India, AIR 1982 SC 149; Ruda/ Shah v. State of Bihar, AIR 1983 SC
1086; Sabestein v, Union of India, AIR 1984 SC 1026; Hussainara Khatoon v. State of Bihar, AIR
1979 SC 360; Neert11,ja Chaoudhri v. State of M.P., AIR 1984 SC 1099; People's Union for Democratic
of Rights v. Unio,-. of India, AIR 1982 SC 1483; Bandhua Mukti Morcha v. Union of India, AIR
1984 SC 842; KR. Delwai v. Indian Overseas Bank &others, I :R 1991 Mad. 61; Olga Tellis v. State
of Maharashtra, A.IR 1986 SC 180 (Pavement Dweller's case); Rural Litigation & Entitlement
Centre, Dehradun v- . State of U.P., AIR 1985 SC 652; M .C. Mehta v. Union of India, AIR 1988 SC
1037; Khatri v. Sl<lfe of Bihar, AIR 1981 SC 928 (Bihar Blinding Case); Sheela Barse v , State of
Maharastra, (1983)l SCC 96; Indira Sawhney v. Union of India, AIR 1993 SC 447 etc,
3. AIR 1950 SC 27.
4. AIR 1978 SC 597.
5. AIR 1993 SC 2178,
1. AIR 1995 SC 922.

\
\ Back-drop
3 The revolutionary ideas generated by positiv.istic legal thinking had a
HISTORICAL SCHOOL OF JURISPRUDENCE
The exponents of the historical school of jurisprudence take social
institutions in their sequence with primacy to primitive legal institutions of
the society. Thus the school does not attach importance to relation of law to the
State but ~ives primacy !o the social institutions in which the law develops
itself. While the analytical school pre-supposes the existence of a well
developed legal system, the historical school concentrates on evolution of law
from the primitive legal institutions of the ancient communities. The task of
historical school is to deal ':ith th~ genrral principles governing the origin and
development of law and with the influences that affect the law. Such inquiries
are distinguishable as an anthropological approach to the evolution and
development of law.
The 19th century analytical positivism pioneered by Austin, Hart and
Kelson in England described law as a coercive command issued by the sovereign
devoid of moral or cultural values. The Austinian theory rejected historical
growth of law and concentrated on law as it is, without bothering about its
historic values and moral precepts. The positive school refused to recognise the
impact of legal evolution which meant that existing law and legal institutions
can be supported or opposed only when we know the sanction behind them and
how they worked in the past and are actually working in the present. Thus it is
evident that the analytical school, unlike historical school regards law as an
arbitrary creation whose sanctions are not embedded in its historical past but
emanate from the State authority. It treats law as a command of the State
which the subjects are duty bound to obey, the disobedience of which would
lead to penal consequences.
Historical jurists banished ethical considerations from jurisprudence and
rejected all creative · participation of Judge and Jurist or law-giver in the
making of law. They propounded the view that all universal ideal principles
to which positive law must conform were not principles of morals but principles
of customary action. They could be traced not by reasoning but by historical
study. Frederick Pollock, one of the ardent supporters of historical school
firmly believed that morals, as such were cut of the domain of Judge or Jurist.I
It is, however, a different matter that even customs immemorial should not be
opposed to morality.
It would, therefore, be seen that the historical school emerged as a
reaction to legal theories propounded by analytical positivists and the natural
law philosophers. The latter believed that the law was founded on the
abstract notions of human conscience and reason.
1. Pollock · Essays in Jurisprudence & Ethics 25-26 (1882),
[52]
ffiSfORICAL SCHOOL OF JURISPRUDENCE
devastating effect as they failed to meet the needs of the people. Consequently,
it led to the emerge:i;tce of new approach to the study of jurisprudence based on
history and historic conception of law. Vico in Italy, Montesquieu in France,
Burke in England and Hugo and Herder in Germany heralded a new era in the ·
development of legeal theory and viewed law as a legacy of the past and
product of customs, traditions and beliefs prevalent in different communities.
The historical jurists believe that law has biological growth and it has not
evolved in an arbitrary and erratic manner.
According to Sir Henry Maine, Montesquieu (1689-1755) 1 was the first
jurist who adopted historical method of pursuing the study of legal institutions
and .came to the conclusion that " laws are the creation of climate and local
situations". He did not probe further into the relationship between law and
society but pointed out that law must keep pace w~th the changing needs of the
society. '
Hugo (1768-1844), pointed out that law, like language and habits of the
people, forms itself and develops as suited to the circumstances. The essence of
law is its acceptance, regulation and observance by the members of the society.
The English Legal historian Holdsworth attributes two major factors
which are responsible for the emergence of historical school of jurisprudence,
namely : (1) The French Revolution and the consequent upheavals, and (2)
Darwinian theory of evolution which , altered the character of scientific
speculation during that period. This view is supported by the Supreme Court of
India in Byram Pestonji Gariwala v. Union of India, 2 wherein the Court quoting
Justice Thommen :
"Indian legal system is the product of history. It is rooted in our soil,
nurtured and nourished by our culture, languages and traditions, fostered
and sharpened by our genius and quest for social justice, reinforced by
history and culture."
Distinction between Historical Jurisprudence and Legal History
Before proceeding with the study of the contents of historical
jurisprudence, it would not be out of place to distinguish it from legal history.
Legal history deals merely with the factual narration of the development
of law and various legal institutions of a community in a chronological order.
Historical jurisprudence, on the other hand, proceeds to examine the manner,
circumstances and factors responsible for the growth of law and takes account of
the social forces operating in the process of the evolution of law. Dr. C.K. All~n
has drawn a distinction between legal history and historical jurisprudence m
the .following words. 3
1. Montesquieu's work Spirit of Law was published in 1748 and was later translated into English.
2. AIR 1991 SC 2234 (2243).
3. Allen C.K.: Legal Duties &Other Essays in Jurisprudence p. 1-27.
 54 JURISPRUDENCE AND LEGAL THEORY
"When, in order to apprehend the n~ture or an idea of any
legal institution or system of institutions, it is necessary to
determine the actual circumstances of the development, then
we must involve the aid of legal history .. when our chief aim
1
•
is to abstract the idea itself ·rather than actual matters of fact
which surround it, then it is perhaps correct to say that we are
engaged in the study of historical jurisprudence rather than
legal history. However, it is doubtful whether any rigid line of
demarcation can ever be drawn between historical jurisprudence
and legal history... they differ only in degree and not in
kind".
The focus of historical jurisprudence has been to demonstrate as to how
racial, ethnic or linguistic traits of law are embibed in the culture and heritage
of a particular community. It guards vs to draw generalizations concerning
universality and permanence of legal institutions and isolate law from social
and historical moorings.
Prelude to Historical approach . filip to racial discrimination in Asia and Africa, and led to ethnic communal
With the revival of Roman law in Europe, especially in France, Germany
and Italy in eleventh century, the commentators like Glossastors made efforts
to co-relate the Roman law to contemporary situations thus leading to
adaptation of law into the national law of different European countries. French
philosopher Cujas applied historical method ·tc,-.interpret Justinia,rf s _Co7'.'p_us
~~-
Montesquieu (1689-1755)
The credit of laying down foundation of historical school of jurisprudence
· in France goes to Montesquieu through his classic work Spirit of Lawsl
published in 1748. He attributed evolution and development of law to the effect
of cause and effect in a given social surrounding and biological environment. He
held that laws should be adopted to suit the people for whom they are framed
keeping in view the degree of liberty which Constitution desires to grant to its
people. According to him, there is nothing like good or bad in law, as it
essentially depends on political and social conditions and environment
prevailing in the society. While he was opposed to natural law, he laid the
foundation of comparative and sociological jurisprudence.
Edmund Burke (1729-1797)
Edmund Burke considered evolution of law as an organic process and an
expression of common beliefs, faiths and practices of the community as a whole.
Commenting on biological growth of law, Sir Fedrick Pollock aptly remarked
that historical method is nothing but the doctrine of evolution_ applied to
hum?11 ins_titutions and s~ie6:es. In his ~eflections on the Revolution m__france
published m 1790, Burke highlighted the rmportance of customs and traditions
in the growth of law. As a British Parliamentarian, he upheld the significance
1. English Translation of L Esprit des Leis.
l-IlSTORICAL SCHOOL OF JURISPRUDENCE 55
of English customs, habits and religion in the evolution of law and denounced
the French Revolution for its catastrophic consequences.
F.K. Von Savigny (1779-1861)
The forerunners of Savigny, notably, Schelling and Hugo had rejected
natural law theory which believed that law is based on an abstract principle
of human reason. They supported the view that law is a historical perception
which evolves according to customs, traditions, culture and sentiments of the
people. Savigny was the main exponent of this historical interpretation of law
and is considered to be the propounder of historical jurisprudence. He traced the
development of law as a evolutionary process much before Darwin gave his
theory of evolution in the field of biological sciences in 1861. It is for this reason
that Dr. Allen described Savigny as 'Darwinian before Darwin' for his
contribution to apply the evolutionary principle to the development of legal
system. Savigny's theory of law evoked mixed reaction as it inspired people to
struggle against foreign dominations but at the same time encouraged fascism
and nazism tn Italy and Germany which eventually led to disastrous World
Wars. Some jurists allege that Savigny's fundamentalist . ideology provided
tensions and religious conflicts. Religion is being closely linked with past
history and traditions in Iran, Pakistan and Afganistan1 leading to political
·~ persecution of religious minorities iri these countries. The dashes between
Palestinian forces and Israeli troops throughout the West bank and Gaza strip
ever since September, 1996 resulting in killing thousands of soldiers are mainly
. due to ethnic tensions.
Savigny's Life and Works
Friedrich Karl Von Savigny was born at Frankfurt (Germany) in 1779. He
was educated at the universities of Marburg and Gottingen and was a Professor
of Civil Law in the University of Marburg from 1801 to •1804. Thereafter, he
shifted to the University of Landshut. He was then appointed as a Professor at
the newly formed University of Berlin in 1810 and worked there until 1842
when he was appointed as Minister of Justice in Prussia. He retired from that
post in 1848. He published History of Roman Law in Middle Ages (1815-1831),
in six volumes and also wrote System of Modern Roman Law (1840-1849). His
work on Law of Possession (Das Recht des Bestiges) was published in 1803
which is said to be the starting point of Savigny's historical jurisprudence. He
pursued legal studies till 1861 when he died in Berlin. Savigny firmly believed
that all law is the manifestation of common consciousness of the people and it
grows with the growth and strengthens with the strength people and dies
away as the nation loses its nationality.
19th Century Germany & Thibaut's German Code
It was a time when natural law had lost its hold in Germany because of its
abstract principles and mysticism. It was dubbed as unreal, imaginary and
1. In Afganistan, Taliban, Militia staunch Islamic fundamentalist hanged President
Dr. Najibullah along with his aides on Sept. 28, 1996.
56 JURISPRUDENCE AND LEGAL THEORY
unhistorical and the principles . of liberty, eq~ality and fraternity were mere
hollow· slogans as they were being blatently violated by the French
revolutionaries. Savigny strongly opposed these abstract ideals because of
Napolean's attempts to bring Germany under Fr~nch political regime. He had
launched war against German State which were politically and linguistically
divided into smaller States at that time. Napolean Bonaparte imposed
Napolean Code on alien Germans depriving them 'of their own independence
and political freedom. The Germans found the French polito-legal system
which was forcefully imposed on them as irksome and insulting as it attempted
to destroy the culture, heritage and language of the people of Germany. This
led Germans to unite and fight against French domination under a common
slogan 'Germany for Germans' which eventually culminated into political
unfication of Germany.
Despite Germany's unification, the/French Code still continued to prevail
as law. Consequently Prof. Thibaut (1771-1840) of the University Heidelberg
prepared a German law Code based on natural law philosophy. Thibaut's
proposal was, however, strongly opposed by Savigny in 1814 through his
pamphlet vocation of our Age for legislation and Jurisprudence which delayed .
the codification of law in Germany for more than half a century.
Volksgeist as a Source of Law
Savigny and his most popular pupil Georg Friedrich Puchta (1798-1846)
firmly believed that law is a product of the general consciousness of the people
and a manifestation of their spirit. Therefore, codification of German law was
not desirable for its smooth development at that time. This eventually delayed
codification of German law for another fifty years.
According to Savigny, a law made without taking into consideration the
past historical culture and tradition of community is likely to create more
confusion rather than solving the problems because 'law' is not an 'artificial
lifeless mechanical device'. The origin of law lies in the popular spirit of the
people which Savigny termed as Volksgeist.
Commenting on Savigny's contribution to historical jurisprudence,
Friedmann observed that Savigny and his followers invoke history in the name
of tradition, custom and nation against the belief in conscious and rational law-
making. He developed legal philosophy from the evolution of history.
Savigny's contribution to the development of historical school may
briefly be stated under the following heads : -
1. Law develops like language- Savigny pointed out that law has a
national character and it devek ;,s like language and binds people into one
whole because of their common faiths, beliefs and convictions. According to
him, law grows with the growth of the society and gains its strength from the
society itself and finally it withers away as the nation loses its nationality.
Law, language customs and government have no separate existence from the
people who follow them. Common conviction of the people makes all these as a
HISTORICAL SCHOOL OF JURISPRUDENCE
single whole. The central theme of Savigny's historical jurisprudence maybe
summarised thus : -
"The organic evolution of law with the life and character of
the people develops with the ages, and in this it resembles
language. As in the latter, there can be no instant of rest, there
is always movement, and development of law is governed by
the same power of internal necessity as simple phenomena.
Law grows with nation, increases with it, and dies at its
dissolution and is a characteristic of it" .1
Thus, he opined that law is not universal in nature like language, it varies
with people and ages.
2. Early development of law is spontaneous; thereafter jurists develop
it.-Savigny stated that in the earliest stages law develops spontaneously
according to the internal needs of the community but after the community
reaches a certain level of civilisation, the different kinds of national
activities, hitherto developing as a whole, bifurcate in different branches to be
taken up for further study by specialists such as jurists, linguists,
anthropologists, scientists etc. Law has to play a duel role, namely, as a •
regulator of general national life and as a distinct discipline for study. The
former may b€ called the political element of law while the latter as a juristic
element but both have a significant role in the development of law. The history
of Roman law furnishes the best illustration of these processes. At its earliest
stage, it was founded on general consciousness of the people but as it grew and
developed, it assumed the complex and technical form of law of edicts.
3. Savigny was opposed to codification of German law.-Savigny was not
totally against codification of laws. He, however, opposed the codification of
the German law on the French (Napoleonic Code) pattern at that time because
Germany was then divided into several smaller states and its law was
primitive, immature and lacked uniformity. He opined that German law could
be codified at a later stage when the unification of Germany takes place and
there is one law and one language throughout the country. Since Volksgeist i.e.
common consciousness had not adequately developed at that time, therefore,
codification would have hindered the evolution and growth of law. He
emphasised that codification of German law without having jurists of
sufficient genius and adequate expertise in Roman kw would not serve the
desired purpose as Roman law formed an integral part of the German legal
system at that time. He considered lawyers and jurists as true representatives
of the popular consciousness rather than the legislators whose role is limited to
law-making only.
4. Law is a continuous and unbreakable process.-Tracing the evolution of
law from Volksgeist, namely, people's ·;pirit or consciousness. Savigny
considered its growth as a continuous and unbreakable process bound by common
L Quoted from Savigny's essay 'Vom Beruf.
58 JURISPRUDENCE AND LEGAL THEORY
cultural traditions and beliefs. It has its roots in \the historical proces~es which
should constitute the subject of study for the jurists. According to him,
codification of law may hamper its continuous growth and therefore, it should
be resorted to when the legal system has fully deve~oped and established.
5. Admiration for Roman Law.-While emphasising Volksgeist i.e.
people's spirit or as the essence of law, Savigny justified adoption of Roman
law in the text\llre of German law which was more or less diffused in it. He,
located Volksgeist in the Romanised German customary law and considered
Roman law as an inevitable tool for the development of unified system of law
in Germany.
Savigny's admiration for Roman law was, however, criticised by Professor
Eichhorn who was his contemporary Professor in the University of Berlin. He
wondered how a foreign L \.·: could be a true Volksgesit (popular will) of the
German people. Prcaf. Eid, - -r1 was totally against Roman law and wanted
German law to be relievec : ·-r;: its infl uence. On the other hand, Savigny and
his followers were op.posed to the ~xpulsion of Roman law from Germany. Thus
there was a conflict •etween the so called Romanist and the Germanists, · the
former supporting the retention of Roman law while the latter advocating its
total expulsion from the German law. The rift between the two could be
resolved by the final German law draft of 1900 which was a combination of
both German law and the Roman law.
The main tenets of Savigny's theory can be summarised as follows:-
(1) Law has an unconscious organic growth, it is neither found nor
artificially made.
(2) The basis of law is to be found in Volksgeist which means people's
consciousness or will, and consists of traditions, customs, habits, practices and
beliefs of the people. · like to stick to the prevalent abuses and baneful customs_ only because people are
(3) Law is not universal in nature but like language, it varies with people,
time and needs of the community.
(4) Since law should always conform to popular_consciousness i.e.
Volksgeist, custom not only precedes legislation but is superior to it.
(5) With the growing complexity of law, the popular consciousness is
represented by lawyers who are nothing but the mouthpiece of the popular
consciousness. It is for this reason that lawyers and jurists are more important
than legislators in the process of development of a legal system. 1
Criticism against Savigny's Theory of Law
Savigny's theory has been opposed by his critics on several grounds, the
main among those are as follows :-
1. There are certain inconsistencies which are apparent in Savigny's
theory. He emphasised the nat~onal character of law but at the same time
1. Friedmann: Legal Theory (5th ed.) p. 211.
59
lflSTORICAL SCHOOL OF JURISPRUDENCE
suggested a model by which Roman law could be adopted and acce~ted as t~e
law of Germany. Again, he located origin of law in the Volksgezst, that 1s
popular -conscience but at the same time asserted that certain customary
principles of Roman law - had universal _application. Savigny's undue
importance to Roman law has been bitterly criticised by Eichhorn, Beselor and
Gierke and it was because of their intervention that German Code was drafted
in subsequent years.
2. It is often alleged that Savigny's theory of law is negative, obscure and
suffers from narrow sectarian outlook. He was against codification of law
which is one of the most accepted forms of modem progressive legislation. This
anti-codification attitude of Savigny thwarted the growth of German law for
several decades.
3. Savigny's assertion that popular consciousness is the sole source of law
is not wholly true. The theory of Volksgeist overlooks the impact of other
sources of law such as legislation, precedent etc. in the evolution of law. There
are many areas which would have been left without legal rules because there
never existed any popular consciousness about them.
4. Again, Savigny's view that customs are always based on the popular
consciousness is also not acceptable. Many customs such as slavery, bonded
labour etc. originated to accomplish the selfish interests of those who w re in
7
power. They are adopted because they are being blindly followed and continued
for a long time and not because they are righteous and have the support of
popular consciousness.
5. Roscoe Pound has criticised for his juristic pessimism. Savigny's theory
hindered legal reforms and modernisation of law in the name 'of Volksgeist.
Criticising Savigny's legal theory, Pound observed that no legal system would
accustomed to them. Savigny, therefore, overlooked the creative role of law by
introducing legal reforms. As Prof. Porkunove rightly pointed out, Savigny's
theory udoes not determine the connection between what is national and what
is universal".
6. Though Savigny was not against legislative reform by way of
codification of laws, but his approach towards codification was rather cold and
pessimistic because in his view codification could never solve all the problems
that are likely to arise in future and imperfect code would create more problems
by 'perpetuating follies' 1 underlying it, he firmly believed that codification
should be preceded by a progressive scientific study of law after taking into
consideration the historical evaluation of the particular law.
7. Last but not the least, Savigny's Volksgeist helped many nations to
pervert it for promoting their own ideologies. Thus Nazi twisted it by giving a
racial colour, the Marxists used it giving economic interpretation of history and
Italy used it to justify fascism.
I. Dias R. M. W. Jurisprudence (5th Ed 1985) Indian Reprint 1994 p. 383.
60 JURISPRUDENCE AND LEGAL THEORY
Savigny's Contribution to Jurisprudential T~ought _ perspective. He contended that by nature men always like ·to live in perfect
Despite the above criticism, Savigny's legai _theory marks the beginning
of modern jurisprudence. His theory of Volksgeist interpreted jurisprudence in
terms of people's will. Thus, it paved way to the m&lem sociological approach
to law laying greater emphasis on relation of law with society, Savigny's
theory came as a reaction and revolt against the 18th century natural law
theory and analytical positivism. The only defect in his theory was that he
carried the doctrine of popular will too far.
The essence of Savigny's Volksgeist was that a nation's legal system is
greatly influenced by the historical ~ulture and traditions of the people and
the growth of law is to be located in their ,popular acceptance. This laid the
foundation of historical school of jurisprudence which was carried further by
Sir Henry Maine in England, Vinodradoff, Lord Bryce and many others. Ehrlich
devised his theory of interest on the fou,ndation laid by Savigny. Savigny's
approach to law also gave birth to comparative jurisprudence which has been
accepted as one of the most important branches of legal studies in modem times.
Maitland has supported Savigny's approach to jurisprudence and pointed out
· that the course of development of common law in England was determined by
socio-political conditions obtaining in England at that time.
It was in fact the Savigny's theory of Volkgeist which later contributed
to the dev_elopment of legal theories on_ subsequent jurists, notably
anthropological approach to law by Sir Henry Maine, sociological approach of
Dean Roscoe Pound and realist theory of Swedish Realists and the
development of American Realist thought of jurisprudence. The sociology
theory of law propounded by Ehrlich is also founded on Savigny's doctrine of
Volkgeist.
Taking inspiration from Savigny's practical approach to legal theory, the
modem jurists preferred to adopt a pragmatic philosophy and wanted that
should be people oriented depending on their historical, traditional, cultural
and ethical requirements. They believe that law grows with the development
of society and adapts itself to the needs of the people. The theory of interest
propounded by Ihering is essentially based on Savigny's conception of law as an
expression of people's will reflecting their social ethos. Savigny's theory,
though considered as revolutionary paved way for the evolution of sociological
school of jurisprudence in subsequent years.
Above all, Savigny's legal theory served as a sound warning against
hasty legislation and introduction of abstract ideas in the legal system unless
they mustered support of the popular will i.e. Volkegeist.
George Puchta (1798-1856)
Puchta was Savigny's disciple and has been acknowledged as a staunch
supporter of the historical jurisprudence. In his view, neither the State nor the
people alone are a source of law but law comes into existence as a result of
conflict between general and individual will. He traced the origin of human
race from biblical account and analysed the growth of law in its-hjstorical
IDSTORICAL SCHCX>L OF JURISPRUDENCE 61
unity, both spiritual as well as physical. Unanimity among the members of
society on certain basic issues constitutes their general will. But self-interest of
man results into a conflict between his individual will and the general will and
law came into existence for resolving these conflicts. The· State, through the
instrumentality of law restrains the individual from exceeding the limits of his
free will. Thus it is the State which regulates human conduct to implement
General will sacrificing individual interest. The main contribution of Puchta to
the historical jurisprudence is _that he improved upon Savigny's theory and
presented it in a more logical form.
Puchta agreed with his teacher Savigny that the genesis and unfolding of
law out of the spirit of the people was an invisible process. He observed, "what
is visible to us is only the product, law, as it has emerged from dark laboratory
in which it was prepared and by which it became real." His investigations on
the popular origin of law . convinced him that customary law was the most
genuine expression of the common conviction of the people, and for this reason,
far superior to legislation. He considered explicit legislation useful in so far as
·it embodied the prevailing national customs and usages.
Gustav Hugo (1764-1844)
Gustav Hugo was another German exponent of historical jurisprudence. He
observed that law is not the result of legislation or it is in no way a command of
the sovereign nor a matter of social contract, but it is the outcome of the habits
and traditions of the people which they follow voluntarily as a member of the
community. These habits and customs are acquired through necessity, accident
and other processes. It is only where a community accepts a rule or any command
for a long time that rule becomes a rec(?gnised habit of the members to accept it
as law and in this way the evolution of law take~ place.
Historical Comparative Method
Comparative method of study for the purpose of a project on law reform
was found useful by the scholars of historical school. Professor H.C. Gutteridge
affirms that "comparative law denotes a method of study and research and not
a distinct branch or department of law." The scope for comparative approach to
study of law has immensely widened with the advances in legal literacy and
exchange of legal knowledge between various countries. To quote an illustration,
the 42nd Report (1971) of the Law Commission of India on the reforms in the
Indian Penal Code drew heavily on the comparative material from several
continental countries such as US Criminal Law and other sources.
The material available for comparative study of law may vary in form
and include Code, law books, reports of law reform agencies and so on. Finding
this method relatively easy and more useful the 19th century legal thinkers
devoted their attention to comparative legal sources. The jurists made a
comparative study of the legal institutions of various communities to trace the
evolution and development of law. They applied comparative method in the

62 JURISPRUDENCE AND LEG'}L THEORY
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study of law with the object of e~abling .t.he l~gal. philos_?phers to _c~nstruct
abstract theories of law or to assist the h1stonan m tracing the ongms and
evolution of legal concepts and institutions . The ~,i stinguishing feature of this
method of comparison w~s that it did not consist of mere description of
differences which existed between .the concepts, rules, or institutions of the
laws under examination, but also probed more deeply into the matter with a
definite purpose in view. This helped ·considerably in Wlification of divergent
laws. Th.us the supporters of comparative method of law did not believe in mere
compilation of information about concepts, rules etc. but they also tried to
analyse the variations in the existing laws within and outside the country in
order to reform their legal system. Sir Henry Maine is considered to be the fore-
runner of this approach to law.
Sir Henry Maine (1822-1888)
Maine's contribution to historical jurisprudence is so great that he is
labelled as 'Social Darwinist' for he envisaged a social order wherein the
individual is finally liberated from the feudalistic primitive bondage.
Maine's Life and Works
Sir Henry James Summer Maine took his education in the University of
Cambridge and joined as Professor of Civil Law in that University in 1847. He
worked in that capacity until 1854.
His classic work Ancient Law (1861) was greatly applauded by the legal
luminaries. Maine was the Law Member of the Central Legislative Council in
India during 1863-1869 as a successor of Lord Macaulay. He studied ancient law
of India and drew a comparison between the Indian law and the laws of western
societies. He occupied the Chair of historical and comparative jurisprudence in
Corpus Christi College, Oxford from 1869 to 1877. Thereafter, he held the
distinguished post of the · Master of Trinity Hall, Cambridge until shortly
before his death in 1888.
Among other works of Maine, his books entitled 'Village Communities'
'Early History of Institutions', 'Dissertation on Early Law and Custom' deserve
special mention.
Maine's Views on Development of Law
One peculiar feature of historical method in: the context of study of law is
that it is not confined to pure law. Even though the material directly under
study may be legal, the factual material that comes to light may transcend the
exclusive legal field. It is so, because social and legal factors cannot always be
reduced to water-tight compartments. Any appraisal of the precise reason for a
particular law necessitates special attention to the effect of relevant social,
physical, demographic and ideological variables. This view finds support in
the writings of Sir Henry Maine who believed that historical research served
as a useful tool to make the present more understandable.
Sir Henry Maine, through his comparative researches came to a conclusion
that the development of law and other social institutions has been more or less
HISTORICAL SCHOOL OF JURISPRUDENCE 63
on an identical pattern in almost all the ancient societies belonging to Hindu,
Roman, Anglo-Saxon, Hebrew and Germanic communities.. Most of these
communities are founded on patriarchal pattern wherein the · eldest male
parent called the paterfamilias dominated the entire family including all its
male and female members, children and slaves as also the property. The word
of the pater familias was law to them, · which they were supposed to follow.
There were, however, some communities which followed matriarchal pattern
in which the eldest female of the family was the central authority to manage
all the affairs of the family. It is because of his kinship, namely blood
relationship with the family that a person acquired a status. Thus the law of
person was to be determined on the basis of his status. In ancient societies, the
slave, servant, ward, wife, citizen etc. all symbolised statuses which the law
recognised in the interest of the community.
According to Maine pater-familiar constituted the lowest unit of
primitive communities. A few families taken together formed the Family-
Group which consisted of union of families. An aggregation of families
constituted Gens which in turn led to the formation of tribes. A collection of
tribes formed the community which Maine termed as commonwealth. It was in
this manner that early primitive societies evolved, their relationship being
regulated by the law of status which was also called as law of persons.
Obviously, the individual member of the family had no individual existence
than his status as a son, wife, servant etc. as the case may be. Similarly,
servants and slaves had no rights in the early law.
Movement of Progressive Societies from Status to Contract
With the march of time the institution of pater families withered away
and now rights and obligations were dependent on individual contracts and free
negotiations between persons. This led to disintegration of the family system
and emergence of contractual relations between individuals. In other words, now
the individual could take final decisions himself without depending on
headman of the family. The Benthamite doctrine of individual's freedom freed
slaves from the bondage of their master and now they could have rights and
obligations like any other person. Thus emerged a free society with freedom of
individual in various spheres of life. The freedom of individual in economic
field has been called as doctrine of laissez faire which struck a blow to the
notion of status as the basis of law. These changes in the pattern of societies led
Sir Henry Maine to conclude that 'movement of progressive societies has
hitherto been from status to contract'. He, however, qualified his proposition
by using the word hitherto making it clear that this generalisation may not
necessarily hold true in future. 1 In India also emancipation of women from the
domination of males, freedom available to individuals in social, economic and
political spheres of life, improvement in the condition of labour and workers
etc. evinces that there has been a shift of emphasis from status to contract in
modern times. The transformation of English as well as Indian society from
l. Dicey A. V.: Law & Public opinion in England in 20th Century (edited by Ginsberg) chapter
l.
64 JURISPRUDENCE AND LEGAL THEORY
feudalistic pattern to individualistic setup, ha~ bro~ght in its wake a radical
change in the status of servants, agricultural workers etc. The incapacities of
Hindus in matters of marriage, divorce, succession, adoption etc. have been
removeq. by the codification of Hindu personal law$ in 1955-56.1
The spectacular changes in the Indian Laws consequent to the transition
from British colonial rule to the independence of the country in 1947 amply
shows that there has been movement of Indian society from status to contract.
The abolition of Zamindari System (Landlordism) and other graded
inequalities, laws against racial discrimination and constitutional mandate
enshrine in the Preamble and Part III (Fundamental Rights) and· Part IV
(Directive Principles of State Policy) stipulate a socio-economic order with the
objective of securing for Indian citizens justice, liberty, quality and faternity are
all indicative of progressive movement from status to contract. The contribution
of the Supreme Court of India in achieving this change by securing to the people
of India justice-freedoms under Article 19 of the Constitution ensuring socio-
economic and political justice is no less important. The judicial activism and PIL
have further accelerated the movement from status to contract through
agrarian,2 industrial and labour3 reforms by the process ~f legislative
innovations.
The essence of Henry Maine's view that mo"ement of progressive societies
hitherto has been from status to contract lies in the fact that there has been a
gradual dissolution of family dependency, and the growth of individual
freedom in its place. In other words, individual is gradually substituted for the
family as a unit of society. This view has been supported by the 20th Century
writers like Vinogradoff, Federick Pollock, Maitland, Holdsworths and
others.
Reversal of trend from contract to status
It must, however, be stated that with the advance of time and due the
impact of industrialisation, urbanisation and modernisation, new problems of
poverty, unemployment, hunger, ignorance, disease etc., have cropped up giving
rise to inequality between individuals and groups _ within the society.
Consequently, there came a counter-current of reversal from contract to status in
the life time of Maine himself. It was realised that idea of freedom of contract
between powerful capit~list and starving labour class led to catastrophic
consequences resulting in exploitation of workers. This led to the emergence of
1. In uncodified Hindu law Karta of the family who was the eldest male member of the family,
dominated his authority but the codification of Hindu law has done away with the
discrimination, inequality and subjugation of women liberating them from the domination of
men. The new concepts of liberty, equality, freedom and individualism symbolise movement
of progressive Indian society from status to contract.
2. Land Reforms & Zamindari Abolition Acts passed by various States during 1947-1952, Land
Ceiling Act etc. Golak Nath (AIR 1967 SC 1643); Bank Nationalisation case (R.C. Cooper v. UOI,
AIR 1971 SC 530). Keswanand Bharti (AIR 1973 SC 1461); Minerva Mills (AIR 1980 SC 1789).
3. Various Labour Acts, ESI Act, 1948, Contract Labour (Rei;ulation and Abolition) Act, 1970,
Equal Remuneration Act, 1976; Child Labour (Prohibition) Act, 1986; Maternity Benefit Act,
1961, etc. See also various PIL Petitions by M.C. Mehta on Industrial Disaster Management
and Enviroment Protection Laws.
HISTORICAL SCHOOL OF JURISPRUDENCE 65
Trade Unionism. The workers now formed their associations and instead of
individual freedom of bargaining their wages and facilities, their trade unions
had the power of group bai;gaining. That apart, several labour welfare
legislation such as the Minimum Wages Act, Factories Act, Trade Unions Act,
Workmen's Compensation Act, Employees Liability Act, Industrial Disputes
Act, Payment of Bonus Act, Bonded Labour (Abolition) Act, Contract Labour
(Regulation) Act, etc. have been enacted to improve the service conditions and
bargaining capacity of workers in order to free them from the unscrupulous ·
industrialists and capitalists. ·
With the increasing role of the State in a welfare State, it has assumed
the functions of a regulator to secure a social order based on justice, equality,
liberty and fraternity.1 The Constitution of India seeks to promote economic
interest of weaker sections of society and ensure them social justice.2 These
progressive welfare measures have forced upon the individual worker a new
kind of status wherE.: he does not bargain individually but does so collectively
through associations or unions. Commenting on this reversal from contract to
status, the Chief Justice of the Bombay High Court in Prakash Cotton Mill Ltd.
v. State of Bombay, 3 inter-alia, remarked :
"We must not forget that we are no longer living in the age of
laissez faire and the relation between employer and employees
are no longer solely governed by the principles of contract.
Contractual rights and liabilities are now subject to the
principles of industrial law and also principles of social
justice."
With the changing role of the States, its functions have also radically
changed. Now there is greater interference of the State in the individual's
activities. Even the contracts which an individual enters into in every day life,
have been standardised such as contract relating to electricity supply, water
supply, carriage by railways etc., and individuals cannot alter the terms of
these contracts. Progressive countries all over the world are in favour of
nationalisation of services and industries thus reducing the scope for contract at
individual level and encouraging it on collective basis through associations,
firms, unions etc. Thus it would be s·e en that there has been a shift of trend from
contract to status in modem times.
It must, however, be pointed out that perhaps Sir Henry Maine himself
was conscious of the fact that the movement of progressive societies from status
to contract may undergo a change with the passage of time when unrestricted
freedom of contract may prove detrimental to the interest of individuals and
they might have to fight for their rights and liberties- collectively in groups.
This is the reason why Maine qualified his statement by using the word
'hitherto', signifying that until then the movement of progressive societies was
1. Preamble to the Constitution and Art. 39.
2. See Directive Principles of State Policy enshrined in Part IV of the Constitution of India.
3. (1957) 2 ILJ 490 (494).
66 JURISPRUDENCE AND LEGAL THEORY
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from status to contract thus leaving options open for a change in future time to
come arid incidently, in his own time he witnessed a transformation of society
which brought reversal of trend from contract tq status with the increasing role
of State in the individual activities. · 4. Codification.-The era of codification marks the fourth and perhaps
A perusal of the history of development of various communities would
reveal that the trend as observed by Maine has not been uniform all over the
world. Maine's theory certainly holds good in case of capitalist countries
which have transformed into socialist States. But Maine's assertion about
status to contract has no application in totalitarian States where the freedom
of contract is narrowed down to the lowest limits and there is authoritarian
rule.
Maine's Contribution to Historical Jurisprudence
Historical jurisprudence would/always remain indebted to Sir Henry
Maine for his substantial contribution to the juristic thought. He improved upon
Savigny's legal theory which explained· inter-relationship between community
and the law and also recognised the role of legal fictions, equity and legislation
in the evolution of law. While Savigny had confined his study only to Roman
law and its applicability in Germany, Maine looked it from a broader
perspective and studied the legal systems of different communities for his
comparative research on evolution and development of law. Later jurists,
notably, Vinogradoff, Maitland, Pollock and others were greatly inspired by
Henry Maine's theory and his comparative approach to the study of law and
legal institutions.
Four Stages of Development of Law
The supporters of historical school of jurisprudence have traced the
evolution and development of law through four major stages. They are as
follows:-
1. Devine Law.-In the beginning law originated from Themes, which
meant the Goddess of Justice. It was generally believed that while pronouncing
judgments the King was acting under the divine inspiration of Goddess of
Justice. Themestes were the awards pronounced by Goddess of Justice (themes) to
be executed by the king as a custodian of justice-under divine inspiration. Thus
the king was merely the executor of judgment of God. The dooms of Anglo-
saxsons pertain to this category of ju~gments or commands.
2. Customary Law.-Next, the recurring application of judgments led to
uniform practice which crystallised into customary law to be followed in the
primitive societies. The importance of customs as a source of law has been
underlined by Sir Henry Maine when he observed that 'custom is to society
what law is to State'.
3. Priestly class as a sole repository of customary law .-In the next stage
of development of law, the authority of the King to enforce and execute law
was usurped by the priestly class who claimed themselves to be learned in law
as well as religion, The priestly class memorised the rules of customary law
HISTORICAL SCHOOL OF JURISPRUDENCE 67
because the art of writing had not developed till then. They applied and
enforced the cust~mary law.
the last stage of development of law. With the discovery of the art of wr!ting,
a class of learned men and jurists came forward to denounce the authonty of
priest· as law-givers. They advocated codification of l~w to make_ it .accessible
and easily knowable. This broke the monopoly of priestly class m matt~rs of
administration of law. The ancient Hindu Code of Manu, Hebrew Code, Solon's
Attic Code, Twelve Tables in Rome, the Codes of Hammurabi etc. are some of
the examples of such law Codes.
Law's Development through Legal Fiction, Equity and Legislation
According to Henry Maine, when a primitive law is embodied in a Code,
there is an end to its spontaneous development and such communities are static
societies. Therefore, if certain changes are desired in the law, they have to
be effected deliberately with the conscious desire of development. The
societies which continue development of law in this manner are called
progressive societies by Maine. There are three me~h~ds by which progressive
societies develop their laws. They are (1) Legal f1chons, (2) Equity, and (3)
Legislation.
1. Legal fictions.-Legal fictions change the law according to the changing
needs of the society without, however, making change in the letter of law,
Maine defines 'legal fiction' as "any assumption which conceal~ or effects to
conceal the fact that a rule of law has undergone alteration, its letter
remaining unchanged, its operation being modified". According to Julius Stone
fictions are the 'swaddling clothes' of legal change. They are used for
overcoming the rigidity of law. For example, the fiction that incorporated
bodies are treated as legal persons in the eyes of law having rights and
obligations like living persons, that a Hindu idol is a legal person; that a child
taken in adoption is treated as if he was the natural born son or daughter. The
English maxim, 'the King is dead, long live the King' furnishes one of the best
illustrations of legal fiction.
According to Sir Henry Maine, fiction is a device to extend new rules to ol~
situations, to new circumstances with a minimum of intellectual effect. In his
opinion, a legal fiction is a very useful agency of development_ of law to _suit
·intricate and knotty situations. A legal fiction pre-supposes certain assumptions
made on the basis of which the law assumes certain things to exist which do not
exist in reality and thus adopts itself to new circumstances.
2. Equity.-Equity consists of those principles which appeal to the
conscience of human being. These principles were invoked to remove the defects
existing in the common law in England. The rigidity of common laws judges
forced people to approach the King for justice. The King entrusted the task of
administration of justice to Chancellor who was also the Head of t~e
Exchequer. Though not learned in lawJ the Chan_cell_or hell:'ed m
administration of civil justice through the principles of Justice, equity and

68 JURISPRUDENCE AND LEGAL THEORY
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g':od conscience. In Rome, similar functions w~re performed by Praetor who
tne~ to remedy the deficiencies of the existing ·civil law. Thus Henry Maine
defines equity as, ua body of rules existing si~e by side of the original
common law, founded on distinct principles arid claiming incidentally to
supersede the common law by virtue of a superior sanctity inherent in those
principles". · of collective bargaining through organised associations and unions
In course of time, equity became a system of law which reached maturity
and completeness and finally the Judicature Act, 1873 amalgamated the
comm~n law C_ourts and C_hancery Courts (i.e. Equity Courts) in the High Court
of Justice and 1t was provided that in case .of conflict or variance between the
rules of equity and the common law, the rules of equity were to prevail. The
property legislation of 1925 in England caused equity to undergo a second
transformation as it brought about a corqplete fusion of the systems of co~mon
law and equity into one integrated system of law.
The ?1:igin of equity law may be traced back to late thirteenth century
when traditional common law was in force in England from times immemorial. I
The common law at that time suffered from three main defects, namely, (1)
absenc~ of remedy in certain cases; (2) inadequacy of remedy; and (3) excessive
for~ahsm. These defects were sought to be removed by three jurisdictions of
eqm!~ la~ n~m~ly: (1) Exclusive jurisdiction, (2) Concurrent jurisdiction and (3)
Aux1hary Jtmsd1chon of equity. The origin of the concept of trust, appointment
of receiver to administer the property of the deceased etc. fell under exclusive
~urisd_iction which pro-:ided relief to divorced women and protected the right of
mhentance of the children of the deceased person for which there was no
remedy available under the common law.
The remedies of specific performance of the contract, injunction etc. came
under the concurrent jurisdiction of the equity law which provided relief in
matters where a relief though available under common law, was inadequate.
. The examination of witnesses on commission, set off (i.e., settling different
claims of same parties to litigation in a single suit) _etc. are some of the
ii:1-stances of _a1:x_iliary jurisdiction of equity which sought to mitigate the
ngours and ng1d1ty of common law due to complexity of procedure. Thus it is
evidently clear that equity came to supplement the common law and not to
supersede it.
3. Legislation.-Legislation is the m~st effective method of law-making.
It is considered to be the most systematic and direct method of introducing
reforms through new laws. The power of the Legislature to make laws has been
widely accepted by the courts and the people all over the world. Legislation is
the most powerful instrument of legal reform, and so great is its superiority over
other methods of evolution of law that the tendency of advancing civilization
is to acknowledge its exclusive claim, and to discard the other sources as relics
of infancy of law.
l. T-h•-• 1.uy: Modern Equity (8th ed.) 3.
HISI'ORICAL SCHOOL OF JURISPRUDENCE 69
Vinogradoff
· The analysis of historical jurisprudence wiU remain incomplete without
the mention of Vinogradoff's contribution to this school. He emphasised that
law is not a command of the State but it is an expression of the· general will of
the people. According to him, Maine's expression of status to contract does not
hold good in communities following collectivist ideology wherein the doctrine
predominates for ushering economic rights. It must, however, be noted that
Maine himself had acknowledged that his status to contract dictum referred
only to primitive progressive communities and not the well developed societies.
Vinogradoff also underlined the need for greater emphasis on comparative
method of the study of law in modem socialistic pattern of societies which
envisage the establishment of a welfare state. According to him, comparative
process aids unification of laws and diversities can be conveniently changed
into uniformities. Thus comparative law process provides a sound foundation for
the enactment of unified laws.
Sir Federick Pollock
Sir Federick Pollock was another English jurist · who supported the
historical school of jurisprudence. He analysed the laws of England during the
reign of Henry II and Henry III and came to the conclusion that most of these
laws were based on traditions and customs prevalent in England from time
immemorial. Thus he considered historical legal institutions and customs as
important sources of their development of law and approved comparative
method of study of law. He, however, did not give unqualified acceptance to
the fiction theory of the development of law and wondered whether it was
ever been adopted officially by the English Courts.
Pollock did not consider international law as mere positive morality but
treated it as a law proper which was based on mutual relations of the States.
According to him, it is through international law that nations regulate their
relations inter-se and try to resolve their disputes amicably.
Main Purpose of Historical Study
The foundation of historical approach to law is based on the assumption
that "the past often explains the present most vividly". It need not be
misunderstood to mean that discussion of the history of each rule of law or its
statutory provision is for the sake of mere 'intellectual delight' or record, but
historical approach to law becomes necessary for the purpose of reform when
applicability of a particular law poses queries and it becomes necessary to
explore the circumstances in which the present law came into existence.
Historical method provides an answer to the question as to why a particular
statute or law was framed in the form in which it presently exists. Further,
when the history of a particular idea which was given a concrete shape in the
form of a law is studied in depth, fr shows gradual evolution of that law on
certain lines, thus indicating the trend of change. 1
I. Sir William Holdsworth : A History of English Law, Vol. XIII (1966 reprint}, p. 125.
 70 JURISPRUDENCE AND LEGAL THEORY
IDSTORICAL SCHOOL OF JURISPRUDENCE 71
Historical and Analytical School Distinguished
past. He believed that_ State as a group ~as no i~entity ~thout a leader wh_o
Histor~cal j?risprudence differs from a~alytical jurisprudence with
represents people's uruty ancl strength. Smee law 1s e~bodunent of_ State law 1s
reference to its attitude !o basic legal conceptions. in the following manner :
what leader commands. Thus, he demanded unquestionable obedience of law
Analytical School H.istorical School · which is nothing but will of the leader. It should be used to preserve racial
1. Law is the creation of the State. 1. Law is 'f ound and not made. It is purity as the strength of a nation lies on its racial purity and unity. The racial
self existent. theory has, however, been dismissed as perverted con~eption of law .1
2. Without a sovereign; there can 2. Law is antecedent to the State
beno law. Though it has generally been agreed that historical ~pproach is more
and it existed even before States suited to sociological or anthropological studi~s, it is not so important from the
came into existence. point of view factors operating_ in the society tod_ay and t~e ~aw operating in it.
3. The hall-mark · of -law is 3. Law is independent of political The manner in which Adolf Hitler used the National Socialist theory of law to
enforcement by the sovereign. authority and enforcement. justify his Nazi ideology provides an illustration as to how historic.~J
4. The law rests upon the force of 4. Law rests on social pressure. interpretation was used (misused) to support a particular ideology. The swift
politically organised society. transformations in the modem society clearly indicate that focus should be on
5. Judges should confine ;,. In construing a statute judges existing law as it operates today and not the factors of the past which have
themselves to interpreting the should ~onsider the history of lost their relevance in the modem societies.
law.
legislation in question. Despite these pitfalls in focusing on historical approach to the study of
6. The typical law is statute.
6. The typical law is custom. law, the contribution of historical school to development of law and legal
7. -~mphasis is an empirical a institutions cannot be completely lost sight of. It has demonstrated the perils of
· priori method. 7. Emphas~s. is on comparative
method. over-hasty legislation and emphasized the need for caution and steady
Biolog~cal ~pproach to evolution of law and le al theory approach to law making.
Historical sc~ool provided a valid foundati n to trace the nature of Indian Perspective
contei_nporal"J:' law m_ evoluti_onary processes by ado~ting a biological approach. The historical school has relevance to Hindu jurisprudence of ancient
Darwm_ published his classic work On the Origin df Species in 1859 which led India. The perception of law in ancient Hindu society was different from what
!egal t~kers and re~onners to believe that with th,e changing forces operating it is today. Law was a part of dharma which meant rightful conduct and doing
ma society, the l~w is never lost but it is only transformed and thus law is the one's acts with noble intentions. Originally, there was little difference between
product of evoluti~nary forces. Darwin propounded a thesis that evolution was these two concepts, namely, dharma and law. To be more precise, if dharma
a struggle for . existence in which those creatures that are able to adopt was whole, law was merely a part of it. Thus dharma, was a bigger circle and it
themselves
. to the changm·. g cond't• ·
1 ~ons survive. 1n·1s generalisation
· · 1s · equally
took law within its sweep. In other words, if dharma was a circle, the law an
apJ?hcable to human ~emgs accordmg to the principle of survival of the fittest. arc of the circle. Therefore, there was no disharmony between the two. The
th
This eory was car:1ed further by Herbert Spencer (1820-1903) who drew ancient Hindu dharma was not what it appears to be in the present time. It did
par~l~els between s~tal organism and biological organisms. He argued that an not mean simply performing rituals like puja, offering bhog to deity, visiting
~ndi_vidual ado~ts himself to social conditions by heredity. He inherits a social temples, chanting . slokas and mantra, fasting etc. which is nothing but an
st
~n ~nct from ~Is ancestor_s ~ncluding id_eas of morality, obligation, right and external exhibition of dharma. The Sanatana dharma, as it was called, did not
~us~ce. :nus, different soc1ehes evolve differently adopting their own laws and attach much importance on 'action' but it laid stress on nobility of intention
1nshtuhons. I
behind an action. Human conduct was mostly regulated by the customary law
d However, with the advent of welfare State the theory of evolution which was considered to be a rule of conduct authoritatively imposed by divine
a_ v~~ced by Spencer has been dismissed as crude but his contribution is power as proper for individuals governing all their activities whether public
significant from the point f · ft ·· · ·
. .
Iaw to the soc10log1cal . o view o rans1hon of h1stoncal approach towards or private, spiritual or temporal. Every action was to be directed to the
theory.
ultimate end of preservation of human society. In contrast to Austinian theory
Racial Theory of Law which stressed on protection of legal right as distinguished from duty as the
d. A~olf Hitler sought to use historical theory of law to support his ultimate purpose of the creation of law, the ancient Hindu system of law
ictatonal power. He argued that law was by blood and its roots lay in the emphasised on duties rnther than rights. Thus ancient concept of law_ t?ok
within its sweep various fields such as moral, social, legal and also rehg1on.
l. nias R. M. W : Jurispr-udence (5th Ed) Indian Reprint 1994 p. 386.
I. Dias R.M.V.: Jurisprudence (5th Ed.) Indian Reprint 1994 pp. 386,387.
72 JURISPRUDENCE AND LEGAL THEORY
According to Manusmriti, '~onduct i~ the bas,s of dharma'.1 It is not what you
say but what you do which constitutes dh'(l,rma 2 Manu emphasised that ,
dharma consists of sadachara (virtuous conduct) and noble deeds. Thus there
was a complete blending of religion, morality an~ law in the ancient concept of
dharma. It -?'ay, therefore be noticed that it is <>J:1ly the sadachara aspect of
dharma, which corresponds to modem conception of law. It is thus evident that
modem law is very narrow and circumscribed as compared to ancient Hindu
perception of law which was broad-based, liberal' flexible, humane and just.3
Modem law does not touch the moral or religious aspect at all which the
dharma does. Again, every improper or undesirable conduct or behaviour was
opposed sadachara but it is not so in modem conception of law. For instance,
caus?'g abo~on ~s improper and undesi~able but it has been legalised by the
Medical Termmahon of Pregnancy Act,1971 in certain conditions.
Again, a historical perusal of sources of law in India would reveal that
the ancient law was based on Hindu sc,riptures, 4 while, on the other hand, the
modem law o-dginates from the State which is sovereign. The main sources of
ancient Hindu law as Sruti, Smriti, and the immemorial customs. The Vedas
have two distinct branches, the first.is called Karmakand, (i:fi4i:fi1os) and the
second Gyana Kanda ( ~Hi:fi1°s). The former is meant for general people who are
unable to conceive the intricacies of religion while the later was meant for
selected few who were capable of grasping true knowledge. The noted German
p~ilos_opher and critic Schopehauer, after acquainting himself with all the
h1sto~1~al systems o~served !hat "the study of Vedanta Philosophy was so
benef1c1al and elevating that 1t has been a solace of his life and will remain
solace of his death". Professor Max Muller also appreciated the Vedanta
philosophy of ancient India which prepares mankind not only for a better and
happy life but death also. Much of the code of conduct for human beings is
contained in Bhagwat Gita which still survives the ravages of time. It teaches
th~se laws_ and principles which govern h1:1man life. In simple words, Bhagwat
Gita contains an aggregate of duties which people are supposed to follow in
their day to day life. It is thus an amalgam of the concept of ancient dharma
and the code of conduct for the present day life. Thus it teaches correct attitude
towards life with emphasis on Karma i.e. action.
The ancient Sanatan law recognised the institution ofKing which had a
devine origin. King or the ruler's dharma signified his duty to rule over his
subjects judiciously for their welfare. According to Manu, when a country became
kingless, a state of anarchy prevailed and all people lived in constant fear,
therefore, God has created Rajan i.e. King to protect all creatures and look after
~he_ir interest. Th~s it would be seen that principles underlying sociological
JUnsprudence which emerged elsewhere around late nineteenth and twentieth
1. -m,;m:; 1RlTT "-Ff: Manusmriti chapter 1. verse 8.
2. Ibid. LXV 14.
3. Pandya K.B. : Sanatan Dharma and Law (ed. 1977) p . 27.
4. The .:!arliest Hindu s_criph~res are Vedas in four parts which correspond to four faces of Lord
Brahma, namely, Rik, Ya7ur, Sama and Atharva. They consist of more than 22,000 Hymns
(~).
1-llSTORICAL SCHOOL OF JURISPRUDENCE 73
centuries were already existent .in the ancient Indian legal system. It may
further be remarked that the doctrine of devine right of King developed in
England during the politico-religious controversies of the seventeenth century
which eventually culminated into the civil war, but in India, it was in vogue
from the very ancient time.
With the fall of King Prithviraj Chouhan in 1192, the Hindu rule in India
came to an end giving way to Sultanates of Moghuls. According to Muslim
jurisprudence, sovereignty was vested in· 'shariah' i.e. law embodied in Holy
Quran which had a divine origin. The Moghul rulers could not afford to deviate
from shariat law. Though Allauddin Khilji and Mohammed Tuglaq, did make
some departure in follow:ing this path, Balban (1265-1287) expounded his view
on theory of divine right to his son Bughre Khan and observed, "the heart of
the King is the special repository of God's favour and he has no equal among
mankind". His views were similar to those expressed by Austin in his command
theory of law as he misinterpreted divine right of king as "inherent despotism
and believed that despertism alone could extract obedience from his subjects
and ensure security of his Kingdom. The theory of divine right of King was akin
to the al).cient ideal of sovereignty".
According to the ancient legal thought danda i.e. punishment was
identified with law. It was the duty of the King (Rajadharma) to enforce law
a_nd punish the guilty. According to Manu, danda keeps the people under
control, it protects them. He aptly remarked that punishment remains awake
when people are asleep.1 So punishment is itself dharma. The Hindu
jurisprudence laid great stress on two institutions, namely, 'King' and 'Danda'
for without these, "there would reign anarchy wherein people would devour
each other just as fishes do in water, the stronger eating up the weaker".
In the pre-historic age, law was only a part of dharma but as the society
gradually transformed into historic age, the customary law began to originate.
It took birth from some felt needs of the society. It thus involves two elements,
namely (1) the conviction and (2) constant and general use. Gautama, the great
commentator of Smriti remarked in connection with administration of justice by
the King that customs of castes~ communities and · families which are not
opposed to sacred scriptures, have the authority. In his view customs comprised
Achara, sadachar and shisthachara which meant good behaviour involving an
element of reasonableness, moral life and refraining from doing anything which
was opposed to public policy. Even the Privy Council had accepted the
validity of custom and held that "a clear proof of usage would override the
written text of law".
It must, however, be pointed out that Dharma and religion are not
identical terms though they have been interchangeable so used by so~e pseudo-
political and religious pundits. While religion is essentially a matter of faith
and belief of people performing certain common rites and religious formali_ties
as faithful members of religious order, Dharma seeks to liberate people from
1. Manusmriti Chapt. VII, Hymn 28.
74 JURISPRUDENCE AND LEGAL THEORY
negative parochial view and sectarian beliE\fs and blends or unites all
individuals -in pursuit of cosmic and universally valid ideals · such as truth,
righteousness, justice, freedom, tolerance, compas~ion, harmony, non-violence
etc. These are the cognate virtues which aim, at attainment of peace,
temperance and self-control in society. Therefore, there is nothing higher than
Dhanna which can maintain pea~e arid social harmony in the society. This
has been well reflected in the Gandhian philosophy _of Truth, love and non-
violence which are the immortal and vibrant facets of Dharma leading to unity
of souls, hearts and actions of mankind.1
The concept of dharma and law seems to have reached climax during the
Gupta period. The Arthashastra of Kautilya written during the Maurya -rule
was a masterly treatise on Indian polity and King's duty and his
administration of justice, courts, legal procedure, taxation, right of women, law
of marriage, divorce, succession etc. King was regarded by the subjects as their
protector like their mother. 2 Like Dhardmasastra, Arthasastra also treated
king as the fountain of justice.
The advent of British rule in India from 1754 brought about the decline of
Dharamasastra law and Moulvis and Pandits were appointed by Warren
Hastings 3 in 1772 to interpret the Muslim and Hindu law respectively. This
practice was abolished in 1864 and Courts took ·upon themsel~es the
.!
responsibility of interpreting the law. This marked the beginning of the
institution of lawyers, advocates and barristers to do the work which was
hitherto done by Pandits and Moulvis.
In the early decades of British rule, the British colonial rulers, refrained
themselves from interfering with the personal laws of Hindu or Muslim. But
changing sociff-political conditions brought about the downfall of ancient
Indian law. The process of legislation through regulations in the initial stage
and then by statutory law, 4 threw the age-old ancient laws into oblivion giving
place to laws based on English common law system.
In short, the law contained in Dharmasastra or Arthasastra which at one
time governed the entire gamut of human activity-civil, criminal and others,
was modified supplemented and finally superseded by various legislations such
as the Indian Penal Code, 1860, The. Evidence Act 1872; The Indian Contract Act
1872, The Special Marriage Act 1877; The Transfer of Property Act 1872, etc. In
enacting these legislations, the British Government did not care for the public
opinion of the indigenous people.
The historical changes in the perception of law and legal institutions from
ancient time to modem age indicate that laws ordained in dharma was not only
of divine origin but it also had the attributes of morality, humanity and above
1. Dhyani S. N.: Indian Secularism-Socio-legal issues (1996) p. 28.
2. ~ ~ l'.ffiR ~ ~=
3. Hastings' Judicial Plan of 1772.
4. Abolition of Sati Act, H329; Slavery Abolition Act, 1843; Freedom of Religions Act, 1850; Hindu
Widow's Remarriage Act, 1856 are some of the illustrations.
HISTORICALSCHOOLOF}URISPRUDENCE 75
all some degree of permanence. As against this, modem man-made law may
vanish· with variation in pattern of government change in political ideologies.
It is dynamic, fluid and.pragmatic in approach.
Post-Independence Scenario
The Indian independence brought in its wake a .new era in the
development of Indian jurisprudence with emphasis on justice, equality, liberty
L and individual freedoms and rights. The Preamble to the Constitution along
with the chapters on fundamental rights, fundamental duties and directive
principles of state policy constitute the core of Indian constitutional
philosophy. The insertion of words 'secular', 'unity' and 'integrity' etc. by the
Constitution (Forty-second) Amendment Act, 1976 makes India a secular State
maintaining complete neutrality in matters of religion. 1 The Constitution
guarantees constitutional freedom of religion to all persons and does not assign a
special position to any particular religion. 2 Secularism as a positive concept
implies complete tolerance, impartiality and equal protection of the interests
lI of all religion.3
. The constitutional law enshrined in the Indian Constitution provides for
special care, attention and protection to weaker sections of the people includin:g
I
Scheduled Castes, Scheduled Tribes4 and other backward classes. It also
protects and promotes the interests of minorities,5 women,6 workers,7 children,8
aged,9 and disabled 10 persons. Thus it aims at the welfare of the community as
a whole. The fundamental duties 11 have been inserted in the Constitution to
instil in the minds of children, youth and citizen the spirit of nationa~ism and a
zeal for protecting the unity and integrity of the nation and for preservation of
the Indian culture and heritage.
The framers of the Indian Constitution were aware that religious
fanaticism and fundamentalism is likely to shatter the national unity by
vested interests. They therefore, opted for a 'secular state' 12 in order to ensure
1. Articles 1 (2), 17, 25 and 26 of the Constitution of India.
2. Allexandorwiz C.M.: Constitutional Developments in India (1964) p. 16.
3. Rev. Slainislaus v. State of M.P., AIR 1977 SC 908; S.P. Mittal v. Union of India, AIR 1983 .SC l;
S.R. Bommai v. Union of India AIR 1994 SC 1918 at pare 124 ,etc.
4. Articles 244; 244A, 275, 330, 332, 335, 338, 339 and 342, see also SC & ST (Prevention of
Atrocities) Act, 1989; the Civil Rights Act, 1955, etc.
5. Artcles 29 and 30.
6. Articles 15, 16, 39(a), 42 etc., see also Protection of Women From Domestic Violence Act,
2005,
7. Articles 43, 43-A and various labour welfare legislations such as the Factories Act, Industrial
Disputes Act, Workmen's Compensation Act; Payment of Wages Act; Minimum Wages Act,
Payment of Bonus Act, Bonded Labour (Abolition) Act, etc.
8. Atrides 23 and 24, see also Child Marriage Restraint Act; Child Labour (Prohibition &
Regulation) Act 1986, etc.
9. The Welfare of Parents and Senior Citizens Act, 2007.
10. Article 41.
11. Article 51-A.
12. The word 'secular' was, however, incorporated in the Preamble of the Constitution by the
42nd Amendment Act, 1976.
76 JURISPRUDENCE AND LEGAL THEORY

HISTORICAL SCHOOL OF JURISPRUDENCE 77

an atmosphere of tolerance, understanding ar.,d co-operative among people
irrespective of their religious faith and be1Fefs. I~ fact, the essence of
secularism lies in complete neutrality in reUgious matters and belief in
freedom, 1 tolerance and equality2 of all religions .. Thus, it is a positive concept
of tolerance, impartiality and equal protection of all the religions. But it is
rather unfortunate that secularism is being discriminately misused by vested
interests in recent time. These vested interests try to woe the people making
false promises of conferring benefits and advantages to them. It is irony of fate
that the British Rulers adopted the policy of 'divide and rule' to retain their
power, but such vested interests are trying to divide many more Indian
communities leading towards disintegration the country only for the sake of
retaining power or attempting to assume power by hook or crook. Expressing
serious concern for such an unwelcome trend, Justice P. N. Bhagwati, CJI of the
Supreme Court in the case of Pradeep Jain v. Union of India, 3 inter-alia
observed:
i~
can best be possible by adopting a historical approach to law and relevali.t
legislation.
Perhaps the greatest contribution of historical · jurisprudence to the
development of Indian jurisprudence ·lies in the fact that it helped in
abolishing the old vestiges of discriminatory and exploitative laws ensuring
people social, economic and political justice by removing their disabilities and
incapacities. The codification of Hindu laws of marriage, divorce, adoption,
succession and guardianship, dowry prohibition, abolition of untouchability,
bonded labour assuring equality of wages for equal work etc. are some of the
examples which are illustrative of this progressive change in Indian society·
which has historical origin.
000

"We find today that the integrity of the nation is threatened by

divisive forces of regionalism, linguism, communalism and regional and
linguistic and communal loyalties are gaining ascendancy in national life
seeking to destroy national integrity, ....... it is unfortunate that many in
public life tend to overlook, sometimes out of ignorance and sometimes
deliberately, with a view to promoting self-interest, that national interest
must prevail over any other ulterior considerations." We should not
encourage fissiparous tendencies.4
In the ultimate analysis, it may be stated that the modern Indian
jurisprudence has a glorious historical past embedded in the ancient scriptures
and Hindu Codes. Therefore, historical approach to the study of modem Indian
law and legal system is relevant even to this day in order to appreciate its
evolution and various phases of development. It is rather disappointing that
there are no legal researches worth the name and this area of study has
remained more or less neglected. The American and English legal scientist are
engaged in intensive researches in their respective national laws adopting
empirical and comparative methodology in order to make law answerable to
the changing needs of the society. It is high time when ·Indian jurists should
devote attention to the fundamental research in exploring the untraversed
historic values of the Indian law.
The study of jurisprudence from the historical point of view becomes more
important when the principles of existing laws are brough~ to bear upon the
actual combination of factual situation to find solu~ion to the problem involved.
No doubt, the law Courts are bound to apply to each case the law made by the
sovereign, but the applicability of that law has to be determined on equitable
grounds keeping in view the time, place and circumstances of the cases, which

1. Articles. 15 (2), 17, 25 to 30.

2. Article 15 (1).
3. AIR 1984 SC 1420 (1423).
4. St. Stephen's College v. Delhi University, AIR 1992 SC 1670 (1679).

4 ethical jurisprudence_may briefly be stated as follows:-
\
PHILO_S OPHICAL OR ETHICAL SCHOOL
Montesquieu tried to interpret natural law ,as an effective means of
championing the cause of individual freedom and rights and based it on
Rousseou's theory of General will. This led to the emergence of philosophical
school of jurisprudence in subsequent years. .
Even the earlier philosophers like Arjstotle and Plato considered law as
a product of reason, intuition, ethics, morality etc., which was the only
practical means of establishing rightousness and justice in society. Law being
. based on 'reason' cannot be isolated from ethics. Later, the Roman jurists,
philosophers and thinkers carried further the Greek legal philosophy and
reiterated the view that 'human reason is the sole founrl.ation of law and
justice'. Cicero obs~rved that 'true law is right reason in agreement with
n~ture'. Other jurist,, notably, Gaius, Celsus and Paul also agreed with the
view that all legal ru.les should conform to higher ideals of reason and justice.
During the meclieval period the law acquired a theological fervour due to
supremacy of religiof\ (Church) over the Emperor who was the temporal head
and both were supposed to work conjointly in maintaining justice and law and
order in the society. The canon law (based on religions) was considered as
universal law for maintaining social and legal order. Thus, it attained
supremacy over all human law.
It was in the six.teenth century that law was separated from religion and
theology and assumed . an independent status as natural law through
philosophical approach Hobbes, Locke, Rausseau etc.
_ The jurists fro:rn Germany and France looked for a new legal philosophy
which could prevent Stft~n:1tion of law and create conditions favourable for its
steady ~rowth so as to ;::wet the comp!:xities of the conten.1porar_y society. It
was reahsed that l~w, in ·•'Jrder to command respect froin the society, must have
an element of ethical Value so that it may achieve the ideals for which it was
meant. This new school of thought is called as the ethical or philosophical
school of jurisprudence,
Philosophical or Ethleal School
':ccording to tJ:w @xponents of this school, legal philosophy must be based
on ~th1cal valu~s so ~-~ t'o motivate people for an up-right living. The science of
ethics deals with th~ principles of morality which moulds man's conduct
enablin? him to distif\guish between right and wrong and respect the rights of
others m orde~ to Il'taintain social harmony. According to this school, the
pur_pos~ _of law 1s !o Io~intain law and order in society and legal restrictions can
be !ust1fied only_ if. they promote the freedom of individuals in society. The
eth1c~l _scho~l of JUnsptudence expounds the first principle of law as it ought to
be. It is neither cont2erned with the historical past nor with the analytical
"(78)
PHILOSOPHICAL OR ETHICAL SCHOOL 79
· present, but with the future of law as it ought to be. The salient feature of the
(1) the concept of justice has a philosophicalor ethical content and law
and justice are closely inter-related concepts. Law is a means to attain the ends
of justice. Thus law is only an instrument towards the fulfilment of the objective
of justice;
(2) ethical school of jurisprudence concerns itself with the manner in
which the law fulfils its purpose of attainment of justice;
(3) it seek to differentiate between the spheres of law and justice;
(4) it attempts to highlight the ethical significance of legal conceptions.
The ethical or philosophical school considers law as the means by which
individual's will is harmonised with the general will of the community. The
proximate object of jurisprudence is to secure liberty to the individual for the
attainment of human perfection. Thus liberty is one of the essential pre-
requisites for the perfection of human personality. It is in this sense that
philosophical jurisprudence became the common ground of moral and legal
philosophy, and of ethics and jurisprudence.
Hugo Grotius. Kant, Hegel and Schelling are considered to be the main
exponents of the ethical o: philosophical school of jurisprudence.
Hugo Grotius (1583-1645)
Hugo Grotius was a Dutch national and a republican philosopher. He is
regarded as the father of philosophical jurisprudence. In his famous work 'The
Law of War and Peace', Grotius stated that natural law springs from the social
nature of man and the natural law as well as positive morality, both are based
on the notion of righteousness. Natural justice is the justice in deed and truth.
The rules of human conduct emerge from right reason and therefore, they
receive public support of the community. Real sanction behind these rules is not
the coercive force of the State but the censure of public disapprobation. Grotius
borrowed liberally from the natural law and emphasised that the only law
that could be binding on individuals as also the states inter-se was the law of
nature.
As pointed out by Bodenheimer, Grotius prepared a background for a
rational modernistic natural law by separating science of law from theology
and religion. Grotius believed that morality is necessary in natural law which
prevents persons from meddling with the belongings of others and abide by
solemn agreements and fulfil the promises made to others and inflict
punishment on those who violate these social norms.
Hugo Grotius is considered as the founder of the principles of modern
international law emphasizing on community between nations. He considered
State as a complete association of freemen, joined together for the enjoyment of
rights for their co~mon interest. He condemned savagery of wars and propagate

80 . JURISPRUDENCE AND LEGAf THEORY
I
some basic principles of international law which \would bind States in times of
war and peace. 1
Immanuel Kant (1724-1804)
Kant developed his metaphysical. method further and held that ethics
and law are not one and the same thing. Accordin 9 to him, ethics relates to
man's spontaneous acts while law deals with all those acts to which a man can
be compelled. Ethics thus deals with the inner life of the individual; law on
the other hand, regulates his external conduct. Kant emphatically pointed out
that an organised society should not exercise compulsion to make man virtuous,
but compulsion should be exercised only to regulate his external conduct. In his
view, "law is the sum total of the conditions under which the personal wishes
of man can be reconciled with the personal wishes of an other man in accordance
with a general law of freedom". : which it (law) applies. Therefore, justice is a relative concept depending on
Kant, in his Critique of Pure Reason tried to draw a distinction between
form and matter. He observed that "the impressions of our senses are the matter
of human experience which are brought into order and shaped by human mind.
Emotions become perceptions through the forms of space and time, perceptions
become experience through the categories of understanding such as substance
and causality, quality and quantity, the judgments of experience are linked
with each other by general principles". Human mind does not necessarily
follow the necessity as it has a free will. According to him,"the freedom of man
to act according to his will and the ethical postulates are mutually co-relative
because no ethical postulate is possible without man's freedom of self-
determination". Kant calls substance of ethical postulate as 'categorical
imperative' which is the basis of his moral and legal theory.
Elaborating the concept of 'categorical imperative' Kant stated that 'a
man should act in such a way that his maximum actions could be made the
maximum of a general action'. But he distinguished morality from law and
contended that morality is a matter of internal motives of the individual
whereas legality is a matter of action in conformity with an external standard
set by the law. Thus his legal theory is basically modelled on what the law
ought to be. Kant deduced the definition of law from his categorical imperative
and observed, "law is the aggregate of the conditions under which the
arbitrary will of one individual may be combined with that of another under a
general inclusive law of freedo~. 2 Thus Kant considered 'compulsion' as an
essential element of law and a right is nothing but a power to compel. He
believed that equality is an implied condition of freedom and the right to
property is an expression of personality of man.
Kant pointed out that law to be acceptable to people in general should
have within it an element of justness. According to him, legislation could be
effective only when it represents ~he united will of the people. He upheld
freedom of speech as a pre-requisite of a good government.
l. Grotious wrote his classic work entitleci De Jure Belli ac Pads, meaning laws of War and
Peace in 1625.
2. Kant : Philosophy of Law (Hastie's translation), p. 46.
PHILOSOPl-ilCAi OR ETIIlCAL SCHOOL 81
Kant argued that moral requirements are based on a standard of
rationality. He asserted that categorical imperative in morality involves a
violation. According to his theory, there is a single moral obligation which is
called categorical imperative and is derived from the concept of duty. He
asserted that categorical imperatives are principles that are good in
themselves and therefore, must be obeyed in all situations and circumstances. It
is from the categorical imperatives that all other moral obligations are
generated. Kant also stated that the means and ends can be applied to the
categorical imperatives. The rational beings· ·can pursue certain 'ends' using
appropriate 'means'. Thus a categorical imperative is an unconditional
obligation that has to be followed regardless of our will or desire.
Kant, in his 'Metaphysical Element~ of Justice' wrote that justice cannot be
defined empirically. He believed that 'to follow the law is to be just'. But the
law itself is not universal because it is to be conditioned to the circumstances in
conditions, place, social values, etc. in which an action takes place. The laws
must be metaphysical, derived from reason in order to be just. Thus justice lies iri
whatever is lawful.
As regards the function of the State, Kant opined that it should confine
itself to maintenance of law and order and administration of justice. The
citizens should have the freedom of criticising the government but they should
never seek to resist it. He believed in the universal world order and equality
and freedom of States. He, however, wanted that international law to be
effective, must have an international authority superior to the member States.
Fichte
Fichte deduced the legal theory from the inherent self-consciousness of a
reasonable man. He contended that freedom is necessarily a relative term
depending on mutual personal relations whictt regulate human conduct. It is the
moral duty of every person to respect the liberty of others, but a legal duty to do
is dependent on reciprocity. According to Fichte, the State should protect only
those rights of individual which are necessary conditions of his personal
existence. He emphasised that law must be directed to ensure justice.
As to the relation between individual and the State, Fichte pointed out
that it is regulated by three basic principles, namely, (1) an individual becomes
a member of the State through fulfilment of civic duties; (2) the law limits and
assures the rights of the individuals; and (3) outside his sphere of civic duties,
an individual is free and only responsible to himself. Fichte justified State's
right to punish as a retaliatory measure.
Hegel (1770-1831)
Hegel carried further Kant's doctrine of freedom of will. In his opinion,
the purpose of making of law is to reconcile the conflicting egos in society. This
is achieved by the merger of self-centered consciousness of each ego resulting
into universal consciousness. In other words, legal right is the objective
82 JURISPRUDENCE AND LEGAL THEORY
realisation of the fact that the freedom of eacl\)- ego is limited by like freedom
of other's egos. Thus Hegel believed that various manifestations of social life
including law are nothing but the result of an evqlutionary dynamic process. He
opines that the idea of freedom has dominated_ man's mind throughout his
struggle for existence. Man has successfully struggled for freedom from the
bondage of the Church which gave him temporal freedom, his resistance to
tyrannical rule gave him legal governments and fight against economic
enslavement brought him economic freedom. Thus the society has always been
changing and so has the law to meet the exigencies of time. All laws, therefore,
must conform to dynamic changes in society for the purposeful attainment of
human perfection.
According to Hegel, the State is the synthesis of family and civil society.
It is the unity of the universal principle of family and the particular principle
of civil society. It is thus an expression ~f the individual's freedom in the form
of universal self. He emphasised three kinds of functions of the State, namely
(1) the universal, (2) the particular, and (3) the individual aspect. The
universal function consists of formulation of laws, its particular function
includes application of law to · special cases while the individual aspect is
embodied in the monarch. Thus Hegel is opposed to the democratic state and
universal franchise. According to him, the State is not the embodiment of the
common will or the will of the majority, but of the rational will. Monarch being
an embodiment of the individual function of the State, hereditary monarchy is
justified as a philosophical necessity.
Hegel's most important contribution to legal philosophy is the
development of the idea of evolution. He contended that various
manifestations of social life including law, are the product of an evolutionary
· process. This process operates itself in form of thesis, antithesis and synthesis.
The human spirit sets a thesis which becomes a leading idea of a particular
time. In course of time, a wave of objections and ·criticism generates against this
popular idea, i.e., thesis, thus an anti-thesis is set up and a synthesis develops
out of the ensuing conflict between this thesis and antithesis in an effort to
reconcile them . This process repeats time and again as a historical
phenomenon.
Hegel believed that legal history embodies within it the march of
freedom in civil societies. Thus bondage of the Church gave rise to temporal
freedom, tyrannical rule of despotic monarchies gave way to legal governments
and economic enslavement under capitalism has given way to economic freedom.
In this way, society may change and so also the law with the evolution of the
concept of freedom, the ultimate object being to raise humanity to perfection in a
given legal order.
It may be stated that Hegelian philosophy of law and its evolution has
much relevance in the context of development of law in India, particularly
during the post-independence era, as it seeks to serve the needs of society by
adapting itself to the changed conditions. The functions of law have radically
changed over the years. During the British rule in India prior to independence,
PHILOSOPIIlCAL OR ETHICAL SCHOOL 83
law was an instrument of political coercion and suppression of Indian masses,
but after India became free, law's role extended beyond mere protective
functions and it gradually became a potential instrument of securing human
rights and ensuring socio-economic justice. It seeks to establish Rule of Law and
aims at ensuring justice, liberty, equality, fraternity and human dignity which
are the essential attributes of a truly democratic welfare State. Thus the
development of law is keeping pace with the social change as outlined by
Hegel in his legal philosophy.
Schelling (1775-1854)
Schelling advocated the view that law is . a means by which the
individual will is harmonised with the general will of the community. Law
achieves this harmony by delimiting the sphere of freedom available to each
individual.
It may be stated that the ma.in thrust of the legal philosophy of Kant,
Fichte; Hegel and Schelling has been firstly, on jurisprudence as a means of
attainment of human perfection, and secondly, to secure liberty to individuals
in the society. These legal thinkers considered liberty as the first pre-requisite
for the development of human personality. The legal theory propounded by
Kant stands somewhere between rationalist natural law theorit?s of
seventeenth and eighteenth century and liberalism of the nineteenth century.
The legal philosophy of Fichte was carried by Vacchio in the twentieth
century and gave encouragement to modem fascism.
The legal philosophy advanced by Hegel had mixed reactions from
contemporary jurists. His ideas were greatly admired by some jurists while
others condemned them as extremely dangerous philosophy of his time.
Hegelian views regarding relationship between State and individual and the
propose of legal theory have been appreciated by many writers. But there are
others who condemn him as one of the most dangerous "dilettantes in legal
philosophy".
The historical school under the patronage of Savigny opposed the view
propagated by the philosophical school that law is made consciously by
human reason embodied in legislation and asserted that law is in fact the
-product of Volkgeist, i.e., the people's genius expressing itself in the form of
custom or traditions. The main defect of the philosophical theory of law lay in
the assumption that an ideal law is discoverable by reason and the actual
system of law should correspond to this reason based law. The ideology of the
philosophical school was therefore, not acceptable to the advocates of the ·
historical school of jurisprudence.
Kohler (1849-1919)
Kohler was much influenced by the Hegelian legal r1hilosoply. He
conceded to the Hegel's idea of universal civilization but did not agree with
the view that there is an eternal law of universal body of legal institutions
uniformly suited to all the societies. What may be good for one particular
84 JURISPRUDENCE AND LEGAL THEORY
society may not be necessarily so for the oth~r. He emphasised that human
society is ever changing and progressing ancl law is a means to respond
favourably to this changes.
Kohler defined law as "the standard of cond\,lct which in consequence of
the inner impulse that urges man towards a reasonable form of life, emanates
from the whole, and is forced upon the individual". In his book Philosophy of
Law, Kohler contemplates, vitalising of culture or c;ivilization and this end is
achieved through the instrumentality of law.
Kohler's views about law and legal philosophy have been appreciated by
Dean Roscoe Pound who observed, "formulation of jural postulates of the time
and place is one of the most important ach~evements of recent legal science". 1
This is indeed a significant contribution' of Kohler to the development of
jurisprudential thinking. ·
Rudolf Stammler (1856-1938)
Stammler was the neo-Kantian. He held a view that the two legal
systems, namely, historical and philosophical, despite all their differences in
rules and principles, could work together in fulfilment of the social ideal. He
advocated an alternative theory of law and opined that apart from positive
law which was investigative, there is need for a just law .2 According to him,
law is 'just' if it furthers social ideal, i.e., harmonises ind1vidual interests
with those of society. There are obviously two pre-requisites for fulfilment of
this social ideal. Firstly, it is necessary to maintain proper interest of each
individual, and secondly, social co-operation must be ensured among them.
Stammler's views regarding legal theory are expressed in The Theory of
Law wherein he wrote, "there is not a single rule of law the positive content of
which can be fixed a priori". He, however, believed that a theory of 'just' law
may well be developed simultaneously with the theory of analytical
positivism which is investigative in character. According to Stammler, a law
is just if it conforms to the social ideal of harmonising the interests of the
· individual with that of the society's ideals. The social ideal represents the
unity of individual purposes.
Stammler believed that law is a volition. In other words, it relates to
willingness of the persons for whom it is made. It is a mode of ordering human
acts according to the relation of means and purposes. Sovereignty distinguishes
law from arbitrary volition of an individual. He tried to provide law a
scientific footing by emphasising that 'just' law is the highest universal point
in every aspect of social life of man.
The contribution of Stammler to the jurisprudential thought has been
summed up by Dr. Friedmann in the following words : -
"Stammler was torn between his desire as a philosopher to
establish a universal science of law and his desire as a teacher
1. Roscoe Pound : Interpretation of Legal History p. 150.
2. Stammler : The Theory of Justice p. 90.
PHILOSOPHICAL OR ETI-IICAL SCHOOL 85
of civil law to help in the solution of actual cases. The result
was an "idea of justice" which is hybrid between a formal
proposition and a definition of social ideal, kept abstract and
rather vague by the desire to remain formal. Stammler
produces solutions dependent on their specfic social and ethical
valuations which it was his endeavour to ke·e p out of an idea
meant to be universal. His solutions were based on certain
assumptions and those were the recognition of private property
subject to certain limitations regarding its use and equivalance
of all uses of property regardless of their economic and social
importance" .1
Stammler's legal philosophy was later supported by Italian jurist Del
Vecchio who believed that positive law was an obstacle in the process of legal
reforms.
Francois Geny (1861-1944)
The contribution of Professor Francois Geny to the development of
philosophical thought of jurisprudence is no less important. He was fed up with
the empiricism of historical and analytical approaches to law by the earlier
writers and therefore devoted himself to the revival of natural law
philosophy. However, he tried to develop his theory of natural law within
the . framework of positive law by demonstrating that positive law, to be
operative and acceptable, must contain certain immutable factors which he
termed as donnes. These factors are actual physical, psychological,
anatomical, social circumstances, historical condition like customs, environment
etc. and reasonability and morality in law. They focused on the importance of
judicial decisions in shaping the law to suit the social system. According to
him, any positive law, which was contrary to general conscience and caused
flagrant injustice could be opposed and even disobeyed. He was thus a critic of
the Austinian conception of despotic law.
Del Vecchio
Italian jurist, Del Vecchio developed a theory 0£ law similar to
Stammler's legal philosophy but quite independent of it. He was a great legal
thinker of Italy and his writings were known for his deep knowledge .of
philosophy, law and history. He believed that human mind can discover rules
of justice unaided by positive law. He was thus convinced about the existence of
the natural law and treated positive law as an hinderence in the process of
legal reforms. In his view, the logical form of law was more comprehensive
than the sum of judicial propositions. The concept of law carries with it an
element of neutrality and therefore it is not proper to draw a distinction
between good and bad law or just and unjust law.
Del Vecchio treated law as a phenomenon of nature and an expression of
human liberty directed towards a definite purpose. For him, justice was an
1. Friedmann : Legal T11eory (5th ed.) p . 137 . .
86 JURISPRUDENCE AND LEOfL THEORY
\
ideal concept postulated by the inner conscience of man and a quest for equal
freedom of mankind. 1 · The cumulative effect of the leg~l philosophies developed by historical
It is significant to note that the earlier leg~l philosophy of Del Vecchio
reflects the influence of Kant and Fichte's writings on him but his later work on
relation between individual and State shows that he was also influenced by
Hegelian legal philosophy. ' and denounced its ethical basis. Instead, it emphasised only on two aspects of
Some of the historical jurists notably, Bruns (1816-1880) were also inspired
by the views of the philosophical jurists and laid greater emphasis on human
and universal character of law which led to the development of a new legal
philosophy, "which no longer regards as its task the discovery of an absolute
law of nature, but only seeks to recognise in their universality and necessity, the
general conceptions and ideas which attain concrete historical manifestation in
the single national system of law." Thi~ led to socio-legal approach to law in
succeeding years. · affirming an order which will be enforced by the organised might .of the State
Gueist (1816-1895)
Gueist supported Savigny's theory of law but differed from him and held
that complete development of legal science was possible by re-statement of the
natural law doctrines in the changed socio-legal context.
The contribution of philosophical school of jurisprudence to the
development of legal theory has been assessed by Windchild (1817-1892) who
observed that the antithesis of philosophical and historical jurists has
disappeared since each of them have appreciated the correctness of the main
tenets of the other, thus paving way to the evolution of synthetic juristic
philosophy in later time.
Gustav Radbruch (1878-1949)
The famous German jurist and legal philosopher was a witness to the ill-
effects of positivistic philosophy during the pre-World War II in Germany
which paved way to Hitler's dictatorship. It had led to collapse of the
Weimer Republic in 1933 and Nazi's committed unprecedented mass massacre of
men, women and children and acts of violence against the Jews (a racial group)
which resulted into a huge destruct?on of property. The crimes against
humanity, and war-crimes perpetrated by Nazi's under the dictatorship of
Rudolf Hitler were in complete .violation of law, justice and moral values
which eventually culminated in the infamous Numemberg Trial, 1946. Reacting
against the horrors of Nazi rule, Radbruch expounded the doctrine of higher
law and severely condemned the Nazi atrocities which were contrary to the
natural law principles of justice. He declared that the people of Germany had
right to disobey the Nazi laws which were based on positivist philosophy, as
they were contrary to rules of natural justice and morality. Emphasizing on
"inner morality of law", he declared that 'lawless laws' of Nazi rule deserved
to be condemned as they were devoid of morality and justice. His pragmatic
philosophical approch to law thus contributed to the revival of natural law
philosophy of 20th century.
l. Del Vecchio: Formal Bases of Law, p. 322.
PIDLOSOPIDCAL OR ETIIlCAL SCHOOL 87
Implications of the Ethical Legal Philosophy ·
and ethical jurists and the impact of analytical positivism of Austin, generat~d
a new wave of thinking about the .true nature, content and purpose of law and its
relation with the State. Analytical school had ignored the social aspect of law
law, namely, its coercive force and omnipotence of t~e sover~~g1:1 authority.
Commenting adversely on rigid approach of analytical pos1hv1sts to law,
Professor Robson remarked that since Bentham's time English legal thought ·
has become unduly narrow and devoid of imagination, it hardly gives any place
to philosophy, ethics or sociology in the formulation of laws.I
Dr. Jethro Brown who was a neo-Austinian, gave a new content to Aus~'s
definition of law. He interpreted law, "as an expression of the general will
and directed to the realisation of some real or imaginary good". 2 Thus he gave
an ethical element to the definition of law which Austin had ruthlessly
denied. Jethro Brown conceived that law is not merely a command of ~he
sovereign but it proceeds from the general will of the people and thus contains
within it an element of socio-ethical purpose.
Salmond also contended that customary law is material source of law and
that international law is not a mere positive morality but it is a specie of
conventional law. It is therefore, evident that he also acknowledged the role of
historical and philosophical legal thinking in the formul~tio~ o_f law and
legal precepts. Salmond further remarked that a boo~ of et~1cal JUnsprudence
may concern itself with all or any of the matters 1~cludi~g the conc~pt _of
law, the relation of law and justice, the manner m which law fulfils its
purpose of maintaining justice, the distinction between _the sphere of law ~d
the subject-matter of law and other branches of ngh!, ~nd the .ethical
significance and validity of those legal concepts an~ pn~ci~les which are
fundamental for the proper subject-matter of analytical JUnsprudecne. He
pointed out that the scope of ethical jurisprudence does not exten~ .~yond
general theory of justice in relation to law and the matters such as cnhc1sm of
the existing legal system, or contemplation of an ideal lega~ system, etc.
pertain neither within the scope of jurisprudence nor to legal philosophy, but
to the science of legislation.
Theories of Justice . . .
Hans Kelson pointed out that the notion of justice is a socio-ethical
phenomenon and therefore, an absolute justice is an irration~l id_eal ~d O1:'e of
the eternal illusions of mankind. According to him, justice 1s pnmanly a
quality of social order regulating mutual relations of men. Justice lie~ in virtuo~s
norms of society and if human behaviour conforms to the no~ms. m the. social
order that is supposed to be just. He observed "longing for justice 1s longmg for
1. Robson : Civilization and The Growth of Law, p. 254.
2. Jethro Brown: Austinian Theory of Law : Excursions p537.
88 JURISPRUDENCE AND LEGAL THEORY
\
. happiness and happiness is sought ~n soci~ty. Therefore, justice denotes
happiness guaranteed by a social order".
Supporting the Kelson's view of justice; Bentham co-related it to
utilitarianism which meant happiness of the greatest possible number of
individuals. Happiness is to be inte:rpreted in the collective or objective sense
and not as a subjective value. Broadly speaking, happiness lies in satisfaction
of certain needs such as need to be fed, clothed, housed etc. Thus, Bentham
defined justice as "a principle guaranteeing the individual happiness of all
subjects, into a social order protecting certain interests socially recognised by
the majority as worthy of being protected" ...
The noted Greek philosopher Aristotle commented that justice is a virtue
and it occurs within the State which distinguished between just actions and
unjust actions. Justice lies in the conduct of a person which is fair and lawful
therefore, whatever is lawful, is just and whatever is lawless or unfair, is
unjust. Laws are aimed to prohibit actions which are unjust and promote
whatever is just and produces happiness of mankind.
Aristotle's concept of formal justice through the implementation of law
should comprise four principles, namely, (1) law should be capable of being
complied with by those to whom it is addressed; (2) it must treat equally those
who are similarly situated in all aspects relevant to the sphere of that
particular law; (3) law must be publicly known and (4) there would be a well
set procedure for establishing the facts necessary to the application of that
law.
Aristotle's conception of formal justice considered inner morality of law as
an essential requirement of justice in legal sense. Therefore, a law will be unjust
if it is so contrary to the dominant public opinion that virtually no one will
obey or enforce it.1
Supporting Aristotle's view of justice, Thomas Acquinas held that "justice
is_ a habit, formed through action and experience." Emphasising on the
distributive concept of justice, he held that end of justice is to have regard for
each one's right and to respect the right of others.
Immanuel Kant observed that justice cannot be defined empirically.
Viewed from legal perspective, in order to ensure justice, the laws must be
metaphysical, derived from reason and they must be universal.
John Rawl's institutional theory of Justice
John Rawl presented justice as a feature of social institutions. He believed
that there are principles of justice for institutions as distinct from those that
apply to individual people. According to Rawl, the principles of justice for
institutions must not be confused with the principles which apply to
individuals and their action in particular circumstances. According to him, the
primary subject of justice is the basic structure of society. Whether an institution
1. i<ichard A. Posner : The Problems of Jurisprudence (2010) p. 334.
PIDLOSOPHICAL OR E'IHICAL SCHOOL· 89
belongs to the basic structure of society, it depends on two factors. First, does it
play a role in distribution of both fundamental rights and duties and
"advantages of social co-operation" which relate to life-prospects of people,
and second, does it provide equality of opportunity for everyone. This, in other
words, means that Rawl through his theory of institutional justice, emphasised
on political liberalism which was akin to Kant's theory of distributive justice
or Benthamite utilitarian theory of justice. 1
Rawl's theory of institutional justice obviously suggests that justice for a ·
society is different from justice for an individual or association. The policy of
reservation for Scheduled Castes and Scheduled Tribes, OBC's and woman as
envisaged in the Constitution of India provides the best illustration on this
point. It seeks to make the society just even though it may cause injustice to
individuals who do not belong to the categories for whom reservation is
provided by law. Rawl's theory of justice, though based on 'dualism' is an ideal
theory in the sense that it assumes that everyone will comply with the
principles or rules that are framed or developed by society. The rationale of
Rawl's dualist proposition in his theory of justice lies in the fact that both
institutional as well as individual justice aim at the common goal of a just-
social order.
· It may be stated that John Rawl's criteria of justice owes much to Kant's
theory of law and justice which considered 'reason' and inner morality as the
constitutive elements of law for the attachment of formal justice.
It may be concluded that philosophical school of jurisprudence is
mainly concerned with the, "development of the ideal of justice as a ethical
and moral phenomenon and its manifestation in the principles applied by the
courts".
Though the doctrinal preachings of the three main exponents of
philosophical school, namely, Kant, Fichte and Hegel exerted great influence
on European legal philosophy; they did not produce a new school of
jurisprudence as such. The reason being that their legal philosophy partly
emanated from natural law thories and partly from the analytical positivism.
Therefore, the philosophical school gradually lost its importance with the
historical school gaining momentum in the western world.
Indian Legal philosophical view
The Indian Vedanta philosophy which is based on dharma clearly reflect
the natural law deeply imbibed in the ancient Hindu Law. Dharma consisted of
rules of righteousness which were imposed by divine power to be followed by
men in governing their activities, whether public or private, and had eternal
existence. The ancient Indian Legal Philosophy underlined the need for a
harmonious social order by "striking a balance between inner and outer,
spiritual and material aspects o~ life." 2
1. John Rawl: A Theory of Justice (1971) pp. 237-239.
2. Sen S. N.: Essays on Hindu Jurisprudence p. 12.
90 JURISPRUDENCE AND LEG1L THEORY
\I
According to Manu, the ·great Hindu law commentator, dharma which was
based on natural law philosophy comprised the •~sum total of religious, moral,
social and legal duties which people were supposed to follow throughout their
5
live for the maintenance of social order. It emphasised on righteous conduct for SOCIOLOGICAL SCHOOL
the attainment of salvation (moksha). 1 ·

000 Sociological school of jurisprudence has emerged as a result of synthesis of

various juristic thoughts. The exponent of this school considered law as a social
phenomenon. They are mainly concerned with .the relationship of law to other
contemporary social institutions. ·They insist that the jurists should focus their
attention on social purposes and interest served by law rather than on
individuals and their abstract rights. According to this school, the essential
characteristic of law should be to represent common interaction of men in social
groups, whether past or present, ancient or modern.
The main concern of sociological jurists is to study the effect of law and
society on each other. They treat law as an instrument of social progress. The
relation between positive law and ideals of justice also affects the sociology of
law.
Many authorities contend that sociological jurisprudence originated as a
reaction to rigid legal positivism which relied on the fact that law is solely
based on the coercive power of the State and completely rejected the pursuits of
morality and justice as irrelevant in human relations. Likewise, it was also
opposed to historical school's undue insistence on past customs, traditions and
values which had blocked the growth and development of law and paved way
to narrow nationalism in Germany and France.
The supporters of sociological jurisprudence linked law with other social
science disciplines and treated it as a synthesis of psychology, philosophy,
economics, political science, sociology, etc. Law, according to them, was an
applied science employing functional methods of investigation and analysis for
solving the social and individual problems. In their view, law is concerned
with its effect on society and therefore, it would be erroneous to treat it as a
mere command or God's will or the people's conscience. The functional role of
law and its effect on society constitute the basic philosophy underlying
sociological jurisprudence. As Dean Roscoe Pound rightly pointed out, "the
sociological jurists look more for the working of law than for its abstract
content". The main characteristic features of sociological jurisprudence 1 as
stated by Roscoe Pound are as follows : -
(1) The exponents of sociological school lay greater stress on functional
aspect of law rather than its abstract contents. In their view, law cannot be
insulated from the social complexities and objectives and practical problems of
life. Therefore, this is also known as Functional School of Jurisprudence.
(2) They consider law as a social institution essentially inter-linked with
other disciplines bearing direct impact on the society and uphold the view that

1. Manusmriti II. 1. Roscoe Pound: The Scope And Purpose of Sociological Jurisprudence (1911) 25 Har. L. Rev. 489.
(91)

92 JURISPRUDENCE AND LEGAL THEORY
i denounced all hypothetical considerations in the perception of law and based
law is designed on the basis of human experienc~ in order to meet the needs of
the society. Law is in fact a synthesis of philosophy, psychology, political
science, economics, sociology etc. and has to be understood in terms of its utility,
purpose, effect, practices and functions.
(3) Sociological school completely discards the abstract notions of
analytical positivism which lay over-emphasis on comm:md or power aspect of
law as also the dead weight of past culture and traditions which constituted
the main theme of the historical jurisprudence.
(4) Sociological jurists, however, differ in their approach to the
perception of law. Some prefer to adopt a pragmatic empirical recourse to study
the functional aspect of law while others emphasise on defining law in terms of
court's rulings and decisions thus adopting a realistic approach to law. For
instance, Holmes has defined law in terrils of judicial prediction through the
verdicts of law courts whereas Roscoe Pound treats law as an instrument for the
adjustment of human conditions to the social forces operating in a given society.1
In other words, sociological jurisprudence is a multifaceted approach to
resolve immediate problems of society with toofa which may be legal or extra-
legal and techniques which promote harmony and balance of interests of
society.2
Four Developmental Stages of Sociological Jurisprudence:
As stated earlier, the approach of jurists towards law in terms of its
functions, purposes and objectives underwent a radical change towards the end
of the eighteenth century. The prevailing social order and economic conditions
due to the impact of laissez faire philosophy generated rift and tensions
between different sections of society. It was realised that liberty with equality
and freedom without security were at the root of this disorder in the society.
Therefore, there was need for a fresh approach to the study of law in terms of
pressing needs of the society as the preceding dogmatic approach had failed to
deliver the goods. This led to the emergence of the sociol_o gical jurisprudence
which began from Auguste Compte, brought to the fruition by Dean Roscoe
Pound and finally culminated into Realist School of the twentieth century. The
major stages through which the sociological jurisprudence evolved and
developed 3 may briefly be stated as follows :
(1) Empirical Scientific Approach to Law.-Auguste Compte (1789-1857)
is said to be the founder of the sociological jurisprudence who made a beginning
to what has been known as 'scientific positivism'. His approach to law was
empirical based on experience and observation. Thus he rejected metaphysical
methods of the study of law which was commonly resorted to by his
predecessors belonging to the philosophical and historical school. He
1. Cohen & Cohen: Readings in Jurisprudence and Legal Philosophy (Toranto 1951) pp. 416,
423.
2. Dhyani S.N. : Fundamental of Jurisprudence - The Indian Approach (2004, Reprint, 2011) p. 306.
3. Roscoe Pound: Jurisprudence Vol. I (1959) p . 298.
SOCIOLOGICAL SCHOOL 93
his study of law on empirical observation in an effort-to establish co-relation
between law and society. Being a mathematician himself, Compte was greatly
influenced by mechanical analogies. .
According to Compte, human understanding ~idens with the mental
developments and the law takes shape to suit the needs of society in four
stages, namely, (1) ·Primitive stage, (2) Medieval stage, (3) Metaphysical stage
and (4) the· Modern scientific (Positive) stage. In the first stage, theological
men try to explain things by reference to supernatural forces like sun, moon, sea,
seasons etc. and believes that all the human affairs are controlled and
regulated by God. In the second stage, the God theory and forces of nature are
personified in terms of absolute power. These hypothetical considerations are
discarded at the metaphysi~al stage and finally the scientific stage lays
greater emphasis on empirical observation and study of corela:tion between
observed phenomena themselves. Thus, Compte believed that the facts of
society like those of physical universe have to be explained by empirical
observation, verification and reasoning.
(2) The Impact of Darwinian Evolutionary Theory.-The next stage 1n the
development of sociological jurisprudence has been called as the 'biological
stage' because of the influence of the Darwin's evolutionary theory. Herbert
Spencer explained social phenomenon as a biological process adapting itself to
the changing needs of the society. He asserted that law must evolve and adapt
itself to the changing needs of the progressive society. It is through the
instrumentality of law that the conflicting interests of the members of society
are reconciled and the various groups are held within their bounds in the
interest of the society as a whole.
Supporting the biological theory of evolution of law Austrian jurist
Gumplowicz observed that all racial phenomena are an unending struggle
between different elements : first between social groups, then between states
formed by the stronger groups and finally between classes within these states.
Law is therefore a instrument of the stronger over the weak in the unending
struggle between different interests of the society. It is through law that
stronger groups attain its objectives over the weak who they govern.
(3) Impact of Psychological Theories.-According to Dean Roscoe Pound,
the third stage of the development of sociological school is the psychological
stage. It was a period of later half of the 19th century and the first quarter of
the twentieth century during which psychology had greatly influenced other
social sciences including the law. Ottovon Gierke (1841-1921) denounced the
orthodox approach of the historical school which over-emphasised on
metaphysical approach to law and highlighted the importance of group-
personality for securing collective interests. Thus it was realised that
psychological aspect of law has a close bearing to its functional aspect. George
Jellinek (1851-1911) propounded his social psychological theory of sanction
and held that law sets the norms for external conduct for men and it proceeds
from an external power.
94 JURISPRUDENCE AND LEGAL THEORY
(4) Unification Stage._;.The last stage of development of sociological
jurisprudence consists of unification of sociological method with other social
sciences. It was realised that different social _sciences represent different
aspects of human society. Therefore, they , are supplementary and
complementary to each other and as such law als9 cannot be detached from
various socio-economic aspects of the society since it is an effective means of
social control in the society. ThE propounders of sociological jurisprudence,
therefore, believe that law cannot be detached from various socio-economic
forces operating in the society. For them, law is a mean of social control to be
understood in the total setting of the society, it seeks to regulate human conduct
and aims at reconciling the conflict of interests.
Sociological Jurisprudence and Sociology of Law Distinguished
It would be pertinent to draw a distinction between sociological
jurisprudence and so~iology of law which.appear to be similar concepts. Though
it is difficult to draw a hard and fast line of demarcation between the two
because of their identical subject-matter, they do differ in respect of their
theme and approach to law. Sociological jurisprudence is a functional study of
law applied to concrete social problems in order to make law an effective
instrument of social control for harmonising the conflicting interests of
individuals in the society. In this sense law has a wider connotation and
includes judicial decisions and administrative processes used for reconciling the
competing interests of the people. It is for this reason that sociological
jurisprudence has also hmm called as functional 1 jurisprudence or jurisprudence of
interests 2 or jurisprud~nce of social engineering. 3
Sociology of law, on the other hand, is a descriptive study of law and
legal institutions of a given society . .As Roscoe Pound rightly remarked,
sociology of law is mainly a descriptive study of law in a theoretical manner. It
treats law as just one of the several aspects of a society and, therefore, has a
secondary position c.\S compared to society which is the main theme of
sociology. 4 Thus, strictly speaking, sociology of law is just a branch of sociology.
According to Hall, sociology of law is a theoretical science which consists of
generalisation regarding social phenomenon s0 far as they refer to contents,
purposes, application and effects of legal rules. Sociological jurisprudence, on
the other hand, looks at law as a means of social control. Thus, these are two
distinct and independent concepts.
According to Dr. Timasheff, "sociology of law exists as a distinct science
whereas sociological jutisprudence is merely a branch of science of jurisprudence.
However, both consid~r society as the matrix of their common interest". 5
Max Weber has haced the development of law from irrational conceptions
to its logical conclusions in his work Sociology of Law. Huttington Cairns also
1. Paton G.W.: furispr•udence (1964) p. 21.
2. Dias: Jurisprudence 0976) p. 587.
3. Lioyd Denis: f urispr-udence (1959) p. 177.
4. Roscoe Pound: Juris;prudence, Vol I (1959) p. 344.
5. Julius Stone: Province and Function of Law (1946) p. 393.
SOCIOLOGICAL SCHOOL 95
expounded his legal theory with . greater emphasis on sociological approach.
According to him, sociological or functional jurisprudence would remain a myth
without the progress of social science because jurisprudence is a mere tool to
~erve the social interests cf the community.1 .
Eugen Ehrlich explained legal sociology· in terms of 'living law' which
meant that law is to be understood as it lives in society. He observed that the
law develops not through legislation nor through judicial decisions, but in
society itself.2 Thus, rejecting analytical jurisprudence, Ehrlich pointed out
that law is closely inter-related with life of society and therefore sociology of
law is the source of all legal development. He denies that law has emanated
from the State, it emanates from the society itself and adopts itself to the
changing needs of the transient society.
Back-drop of Sociological Jurisprudence
It is well known that the relations between individual, society and State
are never static, they have always been changing with the exigencies of time
and needs of the society. Therefore, various theories regarding their
relationship have also been changing. For instance, the early societies were
governed by customs which were only a social sanction. Then came the period of
the supremacy of th2 Church, i.e., the priest_ly class. To counter the growing
influence of the Church, the secular State emerged powerful dominating all
other institutions. The omnipotence of the State gave rise to the period of
renaissance and the legal philosophers began to think in terms of freedom of
individual and their rights and liberties. This resulted into political
upheavals giving rise to despotic rule, i.e., Nazism in Germany and Fascism in
Italy. As a result of this, there was need to review the legal theory for
maintaining a balance between the State, welfare of the society and the
individual interests. Finally, it was realised that socialisation of law and
legal institutions would perhaps best sub-serve the common good and interests
of the society. Consequently, a synthetic approach to jurisprudence by evolving
a new legal philosophy called the sociological school emerged out of the
synthesis of historical and philosophical movement and the comparative
study of legal systems.
Main Exponents of Sociological Jurisprudence
The main exponents of the sociological jurisprudence which has been
characterised as "interest oriented, interest loaded and interest directed" were
Montesquieu, Auguste Compte, Herbert Spencer, Rudolph Ihering, Eugen
Ehrlich, Leon Duguit, Francois Geny, Dean Roscoe Pound, etc. In United States,
Justice Oliver Windell Holmes and Benjamin Cardozo, the distinguished
American Judges of the U.S. Supreme Court were also inspired by Dean Pound's
sociological theory of law. They contributed to the development of American
sociological jurisprudence as a reaction to the formalistic attitude of analytical
jurisprudence and against traditional concepts of natural rights.
1. Paton G.W.: / urisprudence (1971) p. 29.
2. Allen C. K.: Law in the Making (1964) p. 29.
96 JURISPRUDENCE AND LEGAL TI-IEORY
Montesquieu (1689-1755) \ . · directed attention to the necessity of considering law in relation to other soc1al
Montesquieu was a French legal_ thinker ~ho is cons~der_ed t~ be th~ fore-
runner of the sociological school of junsprudence. He was first m pomt of time to
perceive the influence of social conditions on law\and legal institutions. In his
book, The Sprit of Law, (L'Esprit des bois), he emphasised that "laws of a
particular nation should be determined by its national ch~racteristics an~ must
bear relation to the climate of each country, the, quality of each s01l, the
situation and extent, the principal occupations of the natives and above all, to
the religion of the inhabitants, to .their inclinations, riches, commerce, manners ·
and. customs". Therefore, though not a propounder of sociological jurisprudence,
Montesquieu's name deserves mention as a fore-runner of this school of t~ought.
He acknowledged the importance of history as a means of understandmg the
·structure of society and drew attention to the role of economic factors.
Auguste Compte (1786-1857)
The noted French legal thinker and philosopher Auguste Compte is
regarded as the founding father of science o~ sociology bec~u~e ~e was the ~rst
to employ the term 'sociology' to connote an mdependent d1sciphne. H; ~pp~e~
scientific method to the study of sociology which has been termed as scientific
positivism'. According to him, society, like any other or~an~sm can progress
when it is guided by scientific principles. These prmc1ples should. be
formulated by observation and experiment of facts and all other metaphysical
considerations should be excluded from its purview. He further pointed out that
man cannot live in isolation as he is essentially a social being and all his
impulses originate from his social life which are to be regulated and controlled
by law and the government. Therefore, it is the 'society' and not the
'individual' which should be the focal point of law. The legal theory of
Auguste Compte greatly inspired Durkheim ~nd la!er ~he gre_at s?cio~ogi_cal
jurist Leaon Duguit founded his theory of social sohdanty taking mspirahon
from these legal thinkers.
Herbert Spencer (1820-1903)
Herbert Spencer was an English sociological thinker who traced the
evolution of society from simple to the modern complex structure. Thus he gave .
a scientific exposition to the organic theory of society. Sp~ncer dedu~ed fo~r
sources of law, namely, (i) divine laws having quasz-rehg1ous sanctions; (u)
the injuctions of the past leaders; (iii) the will of the ~u~er; and (iv) collective
opinion of the society. 1 He pointed out that d1vme laws are clearly
distinguishable from man-made laws. He considered law nothing more than a
hardened custom. The purpose of law according to Spencer is to resolve the
conflicting interests of the individuals in the society. According to Dr. Allen,
the essence of Spencer's organic theory lay, "in the inter-depe~dence of
organism, in its sociological aspect, which means the mental relah~>r~ _of all
members of civilised society and the distribution of a sense of respons1bihty far
wider than can be comprised with the formula 'sovereign and subject'. It
1. Spencer Herbert : Principles of Socwlogy p. 537.
SOCIOLOGICAL SCHOOL 97
phenomenon" .1 Spencer's theory inspired subsequent jurists to carry further
their socio-legal researches and relation of law and society.
Spencer authored his theory of Evolutionary law which suggests law as a
product of biological organic evolution embibing the principle of survival of the
fittest as a main determining factor. According to him the evolution of
civilization has been in two distinct stages. In the primitive form of society,
there were clashes, wars and compulsions whereas the second stage was marked·
by d~velopment, peace and individual freedom and liberty. He was a staunch .
supporter of the doctrine of laissez faire and believed in "individualism". As a
supporter of individual freedom he wanted least interference of the Stat~ or
the government and rejected all forms of collective regulations. In his view,
every man was free to do that which he likes provided it does not infringe the
equal freedom of any other. In other words, real justice lies in liberty of each
individual, limited only by the like liberty of others. 2 .
Rudolph Von Ihering (1818-1892)
Ihering was educated at Berlin in Germany. He was Professor at Basel,
Rostock, Keil, Vienna, Strausburg and Gottingen. His monumental work, Spirit
of lAw was published in four volumes during 1852-1865. Later, he published his
principal work which was translated as 'lAw As Means To An End' in 1913. In
this work he criticised the notion of individual freedom and liberty as
advocated by Kant and Bentham as they had divorced legal theory from social
realities. He thus opposed the doctrine of individualism, which in his view
was incompatible to the cause of social justice. Ihering opined that .social
interest of the society must gain priority over individual interest and the
purpose of law should be to protect the interest of th'7 society. In his view,
social interest must gain priority over individual interest. Exposing the
absurdities and weaknesses of individualism, which had made the
'individual' as the focus of moral, political and legal order, Ihering condemned
it as being anti-social and incompatible to the claims of social justice. Thus, he
was a great critic of Austinian positivism, Benthamite individualism ~nd
Herbert Spencers biological theory of evolution of law all of them bemg
theories which were divorced from social realities. His legal philosophy is
therefore, known as the 'jurisprudence of interests' which emphasises on
sociological aspects of law. The main tenets of Ihering's jurisprudence of
interests may briefly be stated under the following heads : -
1. Law is result of constant struggle.-Ihering pointed out that the origin
of law is to be found in social struggles. He accepted that the role of law is to
harmonise conflicting interest of individuals for the purpose of protection of the
interest of the society as a whole. He rejected the philosophical view that law
evolves spontaneously like language and thus he gave importance to 'living
law' which was later developed by his disciple Eugen Ehrlich. The legal
l. Dr. Allen C.K. : Law in the Making (7th ed. 1964) p. 85.
2. Bodenheimer: Justice (1891, New York) p. 46.
98 JURISPRUDENCE AND LEGAL 1HEORY
philosophy of Ihering greatly influenced the )American sociological school
which eventually culminated into Realist School qf Jurisprudence.
2. Law is to serve a social purpose.-Ihering considered law as a means to
an end. The ultimate end of law is social purpose and not the individual
purpose or interest. It is the duty of the State to promote social interest by
avoiding a clash between the individual and social interest. He even justifies
coercion by the State for the purpose of protection of the social interest. For
him, 'law is a coercion organised in a set form by the State'.
3. Law alone is not a means to control the society.-Th.ering made it clear
that law alone was not the means to control the social organism. Th.ere are some
other conditions such as climate, topography etc. wherein law need not
intervene. There are, however, certain aspects of social life which can be
regulated and controlled exclusively by t~e intervention of law, such as raising
of taxes and revenues. Like Bentham, Ihe:Hng also defines 'interest' in terms of
pl~asure and pain, that is, pursuit of pleasure and avoidance of pain may be
called as 'interest'. It is mainly for this reason that Ihering's theory has been
called as "social utilitarianism". He considers punishment as a means to a
social end. He is opposed to retributive penal policy.
Supporting coercive element in law, Th.ering observed that "law is the sum
total of the conditions of life in the widest sense of the term, as secured by the
State's power through the means of external compulsion."
Ihering's Contribution
Ihering's contribution to the science of jurisprudence has· been
acknowledged by Friedmann who calls him the 'father of modem sociological
jurisprudence'. Ihering traced the development of various legal systems by
adopting comparative method of study and came to the conclusion that law
develops by conscious efforts. He was a critic of Savigny's historical theory and
natural law theories propounded by his predecessors.
Ihering laid the foundation of modem sociological jurisprudence by this
insistence on treating law as one of the important factors to control the social
organism. According to him, (i) law has a coercive character; (ii) it has only a
relative value; and (iii) it ha·s to be evaluated in the social context. Thus he
treated law as an effective instrument for the attainment of social purpose. His
theory was later developed by Duguit, Roscoe Pound and others.
According to Ihering, "the social activities of people are controlled by
reward and coercion; duty and love". For nim, laws were only one way to
achieve the end, namely, social control. He emphasised that law was an
instrument for serving the needs of society where there is inevitable conflict
between the social needs of man and each individual's self-interest. He
believed that law does not exist for the individual as an end in himself, but
serves his interest with the good of society. Thus, property for him was both, a
social and individual institution.
SOCIOLOGICAL SCHOOL 99
Criticism Against Ihering's Theory
Ihering's legal theory has been criticised for two reasons. Firstly, in
suggesting that the function of law is to reconcile the conflicting interests, he·is
pointing out the problem, but does not come out with any solution to it. Secondly, ·
the main criticism against Ihering's theory of purpose is that law in fact
protects 'will' and not the 'purpose'. But this criticism has not attracted much
attention because many jurists including Korkunov believe that law seeks to
protect 'purpose' and not the 'will' of the society. Th.ering's theory was mainly
based on the Benthanmite principle of utilitarianism and he sought to reconcile
competing social and individual interests.
The true position as per Ihering is that law is a process to achieve a ·
proper balance between social and individual interests. Thus, law has · a
purpose to promote social interest and as such there can be no law which does
not owe its origin to a definite purpose. Ihering's theory of purposive law
inspired subsequent jurists, notably Roscoe Pound to develop of his theory, social
interest and social justice in subsequent years.
Eugen Ehrlich (1862-1922)
Ehrlich was a Professor of Roman law at the University cf Czernowitz in
Austria. Like Savigny, he believed in spontaneous evolution of law but he did
not hang on the past but conceived law in the context of existing society and thus
evolved his theory of 'living law'. According to him, the institutions of
marriage, domestic life, inheritance, possession, contract etc. govern the society
through 'living law' which dominates the human life. By 'living law' he
meant extra-legal controls which regulate social relations of men. Ehrlich
made an intensive study of various legal systems by comparative method and
came to the conclusion that law develops by conscious efforts. In his opinion, the
centre of gravity of legal development in the present time or the past, lies
neither in juristic science nor in judicial decisions, but in society itself. 1 His
living law is the law which dominates social life even though it has not been
promulgated in the form of enactment or decision of the courts. Thus he considers
'living law' wider in scope than the statutory law enacted by the State. For
example, there may be some enactments in force in the sense that a court may
apply the provisions thereof if they are called in question, but frequently, a
community ignores that enacted law and lives according to rules created by
mutual consent. The Indian dowry system provides the best illustration to
substantiate this view of Ehrlich. Such rules which are based on mutual consent
of the people rather than statutory enactments or court's decisions, have been
termed as 'fact of law' a social reality which exist quite independent of State's
positive law. It is the 'living law' of the people.
The essence of Ehrlich's theory of living law is that law need not be
necessarily created by the State or applied by the courts or have a coercive
legal compulsion behind it, but it is created by life of groups living within the
society. Thus living law is the fact which governs social life and a proper study
L Allen C.K. : Law in the Making (1964) p. 28.
100 JURISPRUDENCE AND LEGAL THEORY
of law requires the study of all the social condiµoris in which the law functions
in the society. A statute which is habitually disregarded is no part of 'living
law'. It is the living law which dominates the life of the society.
Ehrlich's Contribution
Despite criticism from several quarters that Ehrlich's theory of living
law .is unrealistic, his contribution to jurisprudence c~ot be dismissed outright.
He earnestly strived for the cause of social justice and 'justice' according to him
was not an abstract concept but had a relative significance changing with time
and place. He concentrated his attention on the functioning of law which was
not embedded in the Code or the Court's decision but which did operate and
affect the social life in a community.
. The greatest contribution of Ehrlich to sociological school of jurisprudence
lies in scientific approach to study of law in its social context and his emphasis
on relation between law and the life of the society. His theory of 'living law'
came as a vigorous reaction against the analytical positivism. Ehrlich adopted
a more practical approach and focused his attention on the social function of
law. The purpose of law according to him, was attainment of social justice.
Taking a very practical stand, Ehrlich emphasised that while making and
administering law, the requirements of the society in which law is to operate
must be taken into consideration. Then only law may serve a really useful
purpose.
Ehrlich made an exhaustive study of the variety of customs, traditions,
habits and rules of succession and family relations of nearly a dozen of tribal1
inhabitants in Astra-Hungarian empire and concluded that they persisted
independently despite existence of state regulations on these matters. This
study inspired him to evolve his theory of 'living law' of the people. According
to him, the centre of gravity of legal development lies not in legislation nor in
juristical science nor in judicial decisions, but in society itself. 2 He wanted jurists
to abandon purely abstract notions of law and concern themselves with the real
problems and facts of social life.
G. W. Paton has summed up Ehrlich's concept of 'Hying law' of society and
observed that "Ehrlich builds on the foundations laid down by Savigny a broad
theory that law depends on popular acceptance and that each group creates its
own living law which alone has creative force."
Criticism Against Ehrlich's Theory
Friedmann has criticised Ehrlich's theory for extending the scope of
sociology of law and its relation to other social sciences too ·far and even to the
limit of absurdity.3 Ehrlich makes no distinction between legal norm and other
social norms and confuses between the two. He also overlooks the fact that
1. In those days Astro Hungarian Empire consisted of a number of gaces, namely, Germans,
Czechs, Sloval<s, Croats, Serbs, Solvenes, Jews, Ploes, Hungarians, Russians, Rumanians.
2. Eugen Ehrlich : Fundamental Principles of Sociology of law translated by W.L. Moll (1936
Cambridge) p. 37.
3. Friedmann: Legal Theory (1967) p. 248.
SOCIOLOGICAL SCHOOL 101
many a times formal law influences and even changes the prevalent practices of
the society in the interest of the community as a whole. The significance of
state-made positive law in the modem welfare states cannot be undermined.
Legislation has become one of the important sources of law for regulating social
life giving way to age-old customs and traditions. Undoubtedly, modem social
conditions call for more and more intervention of the State to control social life,
therefore, the importance of custom is receding in favour of articulate law of
the State.
Friedmann asserted that law is a focal point that .generates standards of
behaviour. The validity of law is, however, based on social conventions and not
on morality. While enacting the law, totality of 'legal culture' has to be taken
into consideration in order to make the law well 'reasoned' and acceptable to
people at large. Friedmann's 'legal culture' purports to cover the ideas,
attitudes, values and beliefs which people hold about the legal system. Thus
validity of law is based on social conventions and not on morality alone. 1
Leon Duguit ( 1859-1928)
Leon Duguit was a French jurist who made substantial contribution to the
sociological jurisprudence in early twentieth century. He was a Professor of
constitutional law in the University of Bordeaux for many years. During his
time individualism was crumbling in Europe giving way to collectivism in
which State's role extended to public service.2 The reflection of collectivist
ideologies could be found in the writings of Durkheim, Piaget, Max Weber etc.
Duguit was much influenced by Auguste Compte's theory of law as a fact which
denounced individual rights of men and subordinated them to social interest.
Compte pleaded that 'the only ·right which man can possess is the right
always to do his duty'. This formed the basis of Duguits' legal theory.
Duguit was also influenced by ·D urkheim's work 'Division of Labour in
Society' which was published in 1893. Durkheim made a distinction between
two kinds of needs of men in society. Firstly, the common needs of individuals
which are satisfied by mutual assistance, and secondly, the diverse needs of
individuals which are satisfied by exchange of services. Therefore, the
division of labour is the most important fact which Duguit called as 'social
solidarity'.
Doctrine of Social SoHdarity.-Duguit's theory of social solidarity was
based on the fact that interdependence of man is the essence of society. Every
individual has his existence owing to his membership of the society. Each
individual cannot procure the necessities of life by himself. Therefore, each in
his tum has to depend on other for his needs. The ultimate end of all human
activities is to ensure the interdependence of men. Duguit further stated that
law also serves the same end. He pointed out that law is a rule which men obey
not by virtue of any higher principle but because they have to live as members
of society. He rejected the traditional notions of rights, sovereign, state, public
1. Friedmann, L.M. : Dilemmas of Law in the Welfare State, (1986) p. 26.
2. Julius Stone: Province o/Law (1945) p. 690.

102 JURISPRUDENCE AND LEGfL THEORY
\
1 men'. Social interdependence was the inevitable characteristic of human
and private law,· legal personality as fiction and ~eal because they were not
based ~n social· reality. His entire thrust was· .on mutual co-operation and
mutu~l ~terdepe~~e.nce between individuals, groups and societies according to
the pnnc1ple of d1v1sion of labour for the purpose of social cohesion.
Law to secure and serve Social Solidarity , an expression of the· will of the individuals who govern.
According to Duguit, the essence of law is to serve and secure social
sol~da~ty which is duty oriented as it expecta individuals to perform their
obligations a_s a m~mber of the co~munity. There is therefore, no scope for
natural.or private ng~ts. Thus Dugmt stated that law consists of duty which is
the basis of co_-operahon and rejects the abstract concept of right which is the
source of conflict. In other words, Duguit exhorts every one to perform his duties
to the society which would help dev:elopment of co-operation and social
solidarity. '.
· . Fo~ Duguit, _law is not a body of rights. The only real right of man in
so_ciety is to ~o his duty. Law is essentially an objective social fact concerned
with the relation between man and man on the one harid, and man and the State
on the other. ·
Theory of Justice.-Duguit d~fines justice in terms of fulfilment of social
ne~ds ~nd obligations. According to him, law must seek to promote social
sohdar~ty so as to attain maximum good of the society as a whole. State
regulah~~s s~ould be directed towards achieving the ends of social and
econom~c Ju_shce for ~ommon good. He considers 'justice' as a social reality its
roots being in the society itself and not in the will of the sovereign.
Du~uit's v_iews about the State and its functions.-Duguit rejected
hy~othetical notions a~out the State and sovereignty and built his own theory
which. was pragmatic and scientific in character. He attacked State
sover~i~ty and held that State is in no way different from other human
o~gamsations and therefore, its activities should be judged from the point of
vi~': ~f ~oci~l solidarity and common good of society. He favoured
mmimisahon of State functions and decentralisation of State power. He
~o~t~nded that legislators do not make law but merel(""mve expression to
JUd~c1al norms formulated by the consciousness of the social group. Duguit firmly
bel~eved _tha~ the State exists for performing the functions which promote
social sohdanty and not for the exercise of sovereignty.
Thus Du~it believed in 'sovereignty of the people' and State should no
l?nger be considered as a sovereign power. It is the idea of public service which
hes at the base of t~e theory of modern State. He justified people's revolution
wh~re th~ State f~iled to further the cause of social solidarity. He strongly
believed m establishment rule of law where arbitrariness of State and lust of
power has no place.
Duguit's Legal Philosophy
Duguit den~unced traditional conceptions of state, sovereignty and law
and ~~~~e:red t? interpret these. institutions from the point of view of society.
Acc0 . J to him, the outstanding feature of society was 'interdependence of
SOCIOLOGICAL SCHOOL 103
existence which necessitated active co-operation between people. Duguit called
this as 'social solidarity'. Thus, his legal philosophy centered round the
doctrine of social solidarity, which may briefly be summarised as follows1 : -
1. He rejects the doctrine of state-sovereignty and considers state merely as
2. The unity of State is not consistent· with the collectivist associations.
3. Law is only an embodiment of duties which an individual is supposed to
perform as a part and parcel of t!'e social organisation for furtherance of social
solidarity. Law forbidding racial segregation promotes social solidarity.
4. The sole emphasis of Duguit was on interdependence of men as a member
of the community.
5. There are three formative laws, namely, respect for property, freedom
of contract and liability for fault which achieve validity when approved by
the people. Public opinion is thus expression of social solidarity.
6. There is no distinction between public and .private law as all laws are
meant to serve the end of social solidarity. Duguit denied the existence of
rights and held 'duty' as the core of law to attain public good.
7. He contemplates gradual. withering away of the State and its
replacement by group of associations which are engaged in the service of
society.
Duguit's Contribution
The substantial contribution of Duguit to juristic thought is that he
denounced the omnipotence of the State which had led to despoticism and
totalitarian rule. He also rejected the notion of natural rights of men which
made individual hostile to larger interests of the society. His over-emphasis
on duties rather than rights was directed towards greater inter-co-operation
between individuals of a society. Duguit used law as an instrument to promote
justice. By rejecting the notion of State sovereignty, he subordinated the State
to the social needs and asserted that all State actions are to be tested by the
Courts with reference to social solidarity. Thus he acknowledged the superior
role of the judiciary in adjudicating vires of State actions or laws. The impact of
Duguit's legal theory was so great that the later jurists were inspired to
propound their own theories relating to law and jurisprudence.
Criticism against Duguit's Theory
The critics of Duguit suggest that his theory of social solidarity suffers
from many weaknesses, the first being that it excludes all metaphysical
considerations from law and it is itself based on the ideal of natural law. They
allege that Duguit, "pushed natural law out through the door and let it come in
by window".
1. Leon Duguit: The Law and the State (1917) 31 Harv. Law Review 1.
 104 JURISPRUDENCEANDLEGA~TIIEORY
\
· Duguit's definition of law is also confusing as in laying down the
fundamentals to which the law must conform, \he confuses to distinguish
between what the law is and what it ought to be•, For him, anything which
does not enco~age social solidarity is no law at all. \
Perhaps the greatest shortcoming of Duguit's theory lies in the fact that
he overlooked the growing role of State in modem times. He favoured minimum
State interference completely ignoring the fact that the complexities of modem
social life and interdependence in society necessitates greater intervention of
the State in ·regulating human behaviour.
Another weakness of the theory propounded by Duguit is the vagueness
of his doctrine of social solidarity. After all, who is to decide whether
a particular act or rule is in furtherance of social solidarity or not? H it is to
be decided by the Court, then the social ~olidarity would become a question
of personal evaluation of the Judge, which would not be a happy situation
since Judges too have their own limitations and convictions. Again, 'social
solidarity' may be differently interpreted by .different persons to suit their
own purposes. For example, Marxists used this theory for denial of
individual rights and the Fascists used it to suppress the trade 11rn:on
movement.
Francois Geny (1861-1944)
Geny was a French jurist who was a Professor of Law in the University of
Nancy. He published his work Method and Interpretation of Sources of Law in
1899 which won . appreciation from American jurists like Holmes, Cardozo,
Frank and others. He was the first legal thinker in the continent to accept the
importance of judicial decisions in moulding any system of law. He denounced
the traditional French method of logical interpretation of law and suggested
that it be substituted by the new scientific research in the field of law. His
later work Science and Technique of Law was published in four volumes between
1914 to 1924 in which he pleaded for the revision of the French logical. method
of interpretation of law being out of tune with the requirements of changed
social context. Rejecting abstract and logical approach to law, Geny believed
that law was essentially a social science which needed to be modified and
changed with the changing patterns of life and society. He gave primacy to
courts and held that it was for the Judge to ensure that justice is being done to
everyone without any discrimination.
Besides the French Code for which Geny had no faith, he refers to three
additional sources 1 of law, namely, (1) custom, (2) authority of judicial
decisions, and (3) free scientific research. 2 Elaborating his concept of free
scientific research, Geny stated that when a case is not covered by any of the
provisions of the Code, the Judge seems to have unlimited powers to interpret
it, but he should not do so arbitrarily, instead he should try to find out the
solution freely, i.e., without any external influence, and . scientifically, i.e., his
1 P-' dmann: Legal Theory (1967) p. 328.
2. Reuschlein Harold Gill : Jurisprudence, its American Prophets (1971) p. 113.
SOCl;OLOGICAL SCHOOL 105
decision should b~ based on ~~~.and conscience. Thus the ultimate aim of law
is to impart justice. ··
Geny further. stated that the ,,$ olution of social problems lies in the free
scientific researcl:}1 which itself is based· on . three principles, namely, (1)
autonomy of will, (2) maintenance of public order and public interest and (3)
proper balancing of conflicting private interests of individuals. Thus while
resolving the s.o cial problems the jµdge must bear in mind the common good of .
the people in general.
Geny's sociological approach to jurisprudence with emphasis on 'free
scientific research' was · supported bf Professor Kantorowicz who was his
contemporary sociological jurist. The latter opposed analytical approach to
law which was based on abstract logical derivations and supported the view
that law should attempt .to balance the conflicting interests of life. 2 Thus he
laid greater stress on sociological study of law.
Hermann Kantorowicz (1877-1940)
· Professor Hermann Kantorowicz also contributed to the development of
sociological jurisprudence. He opposed the analytical approach to law which
was based on mere logical propositions and supported the existence of law as a
means for protecting the social interests of individuals in society. He
emphasised on social implications of law and legal institutions instead of
resorting to logical interpretation of law.
Roscoe Pound (1870-1964)
Roscoe Pound was born in Lincoln Nearaska (New Jersey) in 1870. He was
an auxiliary Judge of the Supreme Court of Nebraska for a short period of two
years during 1901:-1903. Thereafter, he worked as a Dean of the Law school at
Nebraska. He also served as a Professor of Jurisprudence in Harward
University and was the Dean of its law school. He was a prolific writer and his
major works include the Spirit of the Common Law (l921); An Introduction to
the Philosophy of Law (1922); Interpretations of Legal History (1923); Law and
Morals (1926); The Formative era of the American Law (1938); Contemporary
Juristic Theory (1940); Administrative Law-Its Growth, Procedure and
Significance (1942); Social Control Through Law (1942); The Task of Law
(1944), etc.
Pound's Legal Philosophy
Pound's legal philosophy was centered round functional aspect of law,
which in other words, meant 'law in action'. He pointed out that law is more
than a set of abstract rules. The real function of law is balancing of conflicting
interests by satisfying maximum wants with minimum friction. He preferred to
describe sociological jurisprudence as experimental jurisprudence and focused on
application of law to the social realities of life. Every aspect of social life must
be covered under study of law. Pound emphasized that law should be studied in
1. Friedmann : Legal Theory (1967) p. 329.
2. Newman, R.A. : Essays In Honour of Roscoe Pound (1977) p. 113.
 106 JURISPRUDENCE AND LEGAL THEORY
\
the context of history, sociology, econom\cs, psychology as well as the
traditions, customs and need of each society .1 ·,
Roscoe Pound was one of the most leadh,.g and influential jurists who
deve~oped the American Sociological Jurisprud~nce in a systematic form~ . He
emphasised on inter-disciplinary approach to law so that nile of law and life
may flow together. He treated law as a means for affecting social control and
did not believe in · the abstract or mechanical_ application of law. He is
considered to be the father of American Sociological Jurisprudence for his
unique contribution to the science of law and legal philosophy. The emergence
of Realist School in America in later years owes its origin to Pound's functional
jurisprudence and theory of interests. / parent and children, marital life as also the individual's private interests.
The contribution of Roscoe Pound to sociological jurisprudence may be
studied under the following heads : - t - disposition, freedom of contractual relations, association etc. are also included
1. Emphasis on Functional Aspect of Law :
Roscoe Pound added new dimensions to sociological school of jurisprudence.
His approach to sociological jurisprudence was different in the sense that he
attempted to cover social-life as a whole unlike his predecessors
who considered law as the main subject c,f study and society is·
merely subsidiary to it. Pound laid greater stress on functional aspect of law.
This is why his approach has been termed as 'functional school' by some
2 (iii) Social interests.-The social interests which need legal protection
writers. He defined law as containing uthe rules, principles, conceptions and
standards of conduct and decision as also the precepts and doctrines of
profe~sional rules of art". He thus considers law as a means of a developed
technique and treats jurisprudence as a 'social engineering'. The end of law
according to him, is to satisfy a maximum of wants with a minimum of friction
or confrontation.
Elaborating the functional aspect of law, Roscoe Pound stated that the
function of law is to reconcile the conflicting interests of individuals in the
community and harmonise their inter-relations. He termed this as 'social
engineering'.
2. Pound's Theory of Social Engineering:
Roscoe Pound conceived law as a 'social engineering', its main task being
to accelerate the process of social ordering ·by making all possible efforts
to avoid conflicts of interest of individuals in the society. Thus courts,
legislators, administrators and jurists must work with a plan and make an
eff~rt to_ maintain a b'alance between the competing interests in society. He
defined in~erest as_ a claim, a want or_ a demand, ~f human being or group of
h_ui:n,_an bein~s wh1cli they seek to satisfy and which the social engineering in
c1vd1se~ society must take into account. ~us security of person, property,
reputation and freedom of speech etc. are interests since they are to a man's
advantage.
1. Pound : Interpretation of Legal History p. 156.
2. Paton G.W.: A Text-Book of Jurisprudence (4th ed.) p.17. .
~IOLOGICAL SCHOOL . 107
Pound enumerated various interests which the law should seek to protect
and classified them into three broad categories, namely, (1) Private interests,
(2) Public inter~ts, and (3) Social interests.
(i) Private lnterests.-These include-
(a) Individual's interests of personality, namely, intere~ts of physical
· tegn·ty reputation, freedom of volition and freedom of conscience. They are
m '
safeguarded · · all aw,1 etc.
by laws of crimes, ~orts, contracts, constitution
(b) The interests of domestic relations of persons such as husband and wife, ·
(c) The interests of subsistence such as prope~, _succession, testa_mentary
in the category of private interests.
(ii) Public interests.-The main pub]ic interests according to Roscoe Pound
are-
(a) Interests in the preservation of the State as such; and
(b) State as a guardian of social interests such as administr~tioi:'- of trusts,
charitable endowments, protection of natural environment, temtonal waters,
sea-shores, regulation of public employment and so on.
are-
(a) Interests in the preservation of peace, general health, security of
transactions etc.
(b) Preserving social institutions such as religion, political and economic
l institutions etc.
(c) Interests preserving general morals by prohibiting ~ansactions which
l
are against morality such as prostitution, drunkenness, gambling, etc.
(d) Interests in conservation of social resou~ces, e.g., natural _resources,
reformation of delinquents, protection of economically weaker sections of the
society.
(e) Social interests in general progress including economic, political and
cultural progress. For example, freedom of trade and ~omme~ce, freedom_ of
speech and expression, encouragement to arts and promotion of higher education
etc. ·
(f) Interests which promote human personality ~y enabli~g ~ person to
live political, physical, cultural, social and economic hfe to sUit his taste and
improve his personality. .
It may be stated that Pound's classification of interests in his theory_ of
social engineering cannot be said to be fool-proof for there may. be o~erlapping
of interests here and there. Pound himself accepted that the various mterests of
individuals in a society can only be broadly classified and they cannot be
I. For example, Arts. 24 and 26 ~f the Constitution of India.

108 JURISPRUDENCE AND LEGAl-, lHEORY
\I
placed in water-tight .compartments. Julius Stone has rejected the division of
public interests and social interests on the ground that in fact they are all social
interests.1 However, appreciating Pound's cla~sification of interests he
observed, "it .greatly helps to make legislator as . well as the teacher and
practitioner conscious of the principles and values involved in any particular
issue. It is thus an important aid in the linking of prin~iples and practice."
Pound tackled the .problem of interests in terms of balancing of individual
and social interests. It is through the inst¾umentality of law that these
interests are sought to be balanced. As Justice Cardozo rightly remarked,
"Pound attempted to emphasise the need for judical awareness of the social
values and interests." ·
3. Jural Postulates of Roscoe Po1111d
In order to evaluate the conflicting interests in due order of priority, Pound
suggeste_d that every society has certain basic assumptions upon which its
ordering rests, though for most of the time they may be implicit rather than
expressly formulated. These assumptions may be called as jural postulates of
the legal system of that society. In 1919, Pound summarised five jural
postulates2 as follows : -
Jural Postulate 1.-In a civilised society men must be able to assume that
others will commit no intentional aggression upon them.
Jural Postulate 11.-In a civilised society men must be able to assume that
they may control for beneficial purposes what they have discovered and
appropriated to their own use what they have created by their own labour and
what they have acquired under the existing social and economic order.
Jural Postulate 111.-In a civilised society men must be able to assume that
those with whom they deal as a member of the society will act in good faith
andhence-
(a) will make good reasonable expectations which their promises or other
conduct reasonably create; · applied engineering. Equating society with a factory is _not corr~ct because the
(b) will carry out their undertaking according to the expectations which
the moral sentiment of the community attaches thereto;
(c) will restore specifically or by equivalent what comes to them by
mistake, or failure of the pre-suppositions of a transaction, or other
unanticipated situation whereby they receive at other's expense what they
could not reasonably have expected to receive under the actual circumstances.
Jural Postulate IV.-In a civilised society men must be able to assume that
those who engage in some course of conduct will act with due care not to cast an
unreasonable ~k of injury upon others.
Jural Postulate V.-In a civilised scciety men must be able to assume that
others who maintain things or employ agencies, harmless in the sphere of their
1. Stone Julius: Province And Function of urw {1946) p. 491.
2. Pound Roscoe: Jurisprudence (Vol. III, 1959) pp. 7-8.
· SOCIOLOGiCAL .SCHOOL 109
use but harmful in their normal actions elsewhere, and having a natural
tendency to cross the boundaries of their proper use will restrain them and k~p
them within their proper bounds.
Pound confessed that these jural postulates are not absolute but they have
a relative value. They are a sort of ideal standards which law should pursue in
society. They are of a changing nature at:ld new postulates may emerge if the
changes in society so warrant.1 Thus, the jural postulates propounded by Roscoe
Pound provide guidelines for righteous and civilised life and they also seek _to
strike a synthesis between reality and idealism as also power and social
accountability of men in the community.
Pound's Contribution to Jurisprudence:
Roscoe Pound based his theory of social engineering on the assumption
that protection of interests is the main subject-matter of law and it is the duty
of jurists to make a ·'valuation of these interests' for the satisfaction of human
wants in order to strike a balance between stability and social change. Thus
adopting a functional approach to law, Pound stressed upon the need for study
of law in relation to and as a part of the whole process of social control.
The practical importance of Pound's concept of law is that it inspires
legislators, Judges and jurists to interpret law according to the needs and
interests of the community thrc;mgh his 'law in action', Pound suggests that the
legal fraternity should take of changes taking plac~ in the soc~ety while
interpreting and making laws because law has to be considered as an instrument
of social change.
Criticism Against Pound's.Theory:
Despite Pound's great contribution to sociolog~cal jurisp:r:udenc7 and his
emphasis on studying the actual working of law m_ the s~ciet~, his theory
suffers from certain drawbacks. Pound's theory of social engineering has been
criticised for the use of the term 'engineering', which equates society to a
factory like mechanism. Law is a social process rather than the result of an
former is changing and dynamic in nature whereas the latter 1s more or less
static. Again, Pound's emphasis on 'engineering' i~ores the fact that law
evolves and develops in the society according to social needs and wants for
which law may either have approbation or disapprobation. .
. Dr. Allen has criticised the utilitarian in Pound's theory as it confines the
interpretation of 'wants and desire' to only mat~rial welfare ot_ individual's
life completely ignoring the personal freedoms which are equally important for
a happy social living. 2
It has also been argued against Pound's theory of interests that it has no
significance in a pluralistic society where there are li~~istic,. et~ic, and
religious minorities having diverse interests. Harmomsmg their divergent
1. Roscoe Pound: Jurisprudence (Vol. III 1959) p. 3.
2. Allen C.K. : LAw in the Making (1964) p.33.
 JURISPRUDENCE AND LEG_AL 1HEORY
110
interests is by no means an easy task to be \performed through law and
courts. \ it.
Dr. Friedmann has expressed doubts about the value of classification of
interests and remarked that "there is danger of an implicit grading of interests
as either individual, public or social because these are changing conceptions as
has been accepted by Pound himself. Not only that, the respective value of
these interests and their evaluation also depends on ch~mging political and
legal system". 1 For example, a liberal progressive government would lay
greater emphasis on freedom of individual rights and of established
institutions but a totalitarian State would suppress the interests of individual
in favour of the interest of the State.
Be that as it may, there is no doubt that through his legal theory Pound
has attempted to bring law into closer relation with other social sciences and
tried to strike a balance between freedom of individual and social control
through the instrumentality of law. His greatest contribution to jurisprudence is
that he is practical in approach and concentrates his attention on the actual
functioning of law in society.
Other American Sociological Jurists
Justice Oliver Windell Holmes 2 and Justice Cardozo of U.S.A. are
considered to be the forerunners of the sociological jurisprudence to which Pound
gave a concre~e shape through his theory of sociological engineering.
Justice Holmes (1841-1935)
Justice Oliver Windell Holmes considered law as a means to protect and
promote the collective group interests as compared with the individual
interests. Thus he approached law in a pragmatic manner adopting a realistic
attitude to analyse its working in the society. He aptly remarked, "life of law
has not been logic, it has been experience" which meant that while determining
the law and legal rules by which men should be governed, the lawyers and
Judges must take into consideration the needs of the time, prevalent moral and
political precepts, public policy and the public opinion. Being a Judge of the
Supreme Court of America for over thirty years, Holmes was convinced that
Judges can play a significant role in "turning law to life's needs and
satisfaction". Through his monumental work The Common Law he took
sociological jurisprudence across the Atlantic. 3
Professor Albert W. Alschuler who wrote Justice Holme's biography
writes that Holmes did not believe in a divinely imposed distinction between
right and wrong. He believed in relativity in all human conduct. According to
him, law does not deal with absolutes but has to be applied according to
1. Friedmann : Legal Theory (5th ed.) p.340.
2. He "":as a practising lawyer and teacher at Harward Law School. He was subsequently
appomted as a Judge of the Supreme Court of Massachusetts of whirh he became the Chief
Justice in 1890. Later, he was Judge of the Supreme Court of USA from 1902 to 1933.
3. Dhyani S.N.: Fundamentals of Jurisprudene,e-The Indian Approach (2004, Reprint, 2011) p. 327.
SOCIOLOGICAL SCHOOL 111
varying circumstances of the case and a variety of other factors associated with
Cardozo : Benjamin Nathan (1870-1938)
Another Judge of the US Supreme Court, Justice Cardozo1 also viewed law
in its sociological perspective. He totally r-ejected Austinian concept of logical
interpretation of law and his analytical approach to the judicial process and
emphasised on the need to interpret law in the light of the social necessities
and realities of life. In his famous work Nature of Judicial Process, Cardozo
exhorted the Judges to shed aside their subjective approach and apply law
objectively keeping in view the prevailing traditions, customs, morals and
needs of the society. He was primarily concerned with two aspects of law,
namely, (1) how the Judges should apply law for deciding cases before them,
and (2) how the law grows in society.
According to Justice Cardozo, Judges cannot keep themselves secluded from
social realities and developments in other fields of social sciences which have
a direct bearing, on the life of the people. Therefore, law must keep Face with
the social developments and shape itself to the changing needs of society in
order to attain the ends of justice2 and undoubtedly, Judge's role is crucial in this
Judicial process. He remark~d, "logic, history, custom, utility and the accepted
standards of right conduct are forces which singularly or in combination, shape
the process of law. Which of these forces shall dominate in given case, shalla
depend largely upon the cooperative importance or value of social interests
that will thereby be promoted or impaired. The judge should get his knowledge
as legislator gets it from experience, study and reflection, from life itself".
Sociological Jurisprudence and Sociology of law
Julius Stone has defined sociological jurisprudence as "a study which seeks
to bring social science knowledge to legal problems, address themselves to the
influence of social, economic and psychological and other non-legal factors on
the process in the concrete content of legal propositions". Sociology of law, on
the other hand, attempts to create the science of social life as a whole and
covers a substantial part of general sociology and political science. It lays
greater emphasis on society with law a& a mere manifestation. Gurvitch has
defined sociology of law as follows :
Sociology of law is that part of sociology which studies th..? full social
reality of law, beginning with its tangible and externally observable
expressions, in effective collective behaviours and in the material basis.
Sociology of law interprets these behaviours and material manifestations
of law according to the internal meanings which, while inspiring and
penetrating them, are at the same time in part transformed by them.3
Sociological jurisprudence and sociology of law taken together constitute
basis for socio-legal studies with emphasis on law in its social context
1. He was Associate Judge of the US Supreme Court during 1932-38.
2. Cardozo Benjamin Natham: The Nature of fudicial Process (1931) p. 142.
3. Georges Gurvitch: Sociology of law (1947 Ed.)
112 JURISPRUDENCE AND LEGAL THEORY
providing scope for solving the socio-le~l problems through empirical
research.
Social Justice-Indian Perspective , approach to law.
An appraisal of the sociological jurisprudence in its Indiart perspecti~e
would necessitate a surv.?y of the present as well as the pre-independence
Indian law. The law during the British colonial rule in India was coercive and
counter-productive to social needs of the Indian people. It was suppressive and
insensitive to the sentiments and expectations of the Indians. The British rulers
paralysed the peace and prosperity of Indian by dividing Indians on the basis
of caste, creed, religion, language and occupation so as to perpetuate tension and
conflict between different communities to meet their selfish ends. Thus the law
in India as it stood before the Indian independence was formal, rigid, repressive
and punitive as contemplated by the Austinian conception of imperative theory
of law. The legislature, executive and judiciary-the three organs of the
government used law to protect the interests of the British in complete
disregard of the aspirations and needs of the Indian masses who were exploited
and denied even the basic human rights. In the strict Austinian sense, sanctions
were imposed on Indians in the name of 1 justice according to law'. The British
residents in India enjoyed many exemptions and special privileges under the
I Indian masses and making law responsive te> the social needs.
then existing laws. Thus there was one law for the ruler and other for the
ruled'.
From the point of view of Kelsonite concept of pure theory of law, the
Grundnorm of the Indian law was the British Crown who possessed unlimited
and unbridled powers of suppression and subjugation of the native Indians.
Expressing his impressions about the nature and quality of justice delivery
system administered in the Indian law courts, Castairs has commented that the
plight of the Indian litigants was deplorable. They were caught in the clutches
of petty lawyers who had their touts roaming about the premises of the courts.
The witnesses were mostly hired and tuitored and the cases presented by
parties were invariably concocted. The genuine disputes and actually injured
parties and victims could not come to courts, either because of threats or the fear
of local despot or the enormous waste of time and money involved in the
litigation in the court which usually happened to be far .away from their
place. 1
With the wave of nationalism and awakening of intellectuals, demands
for civil liberty and basic human rights were persistently made but it fell on
deaf ears and suppression, oppression and exploitation of the people continued
unabated under the British colonial rule. The lawyers and Judges interpreted
1
and applied law mechanically without taking into consideration the felt
needs' of the people. The Indian national movement leaders, notably,
Mahatma Gandhi, Pandit Jawaharlal Nehru and others were convinced that
British law had failed to meet the needs of the Indian society because of the
rigid adherence to the doctrine of precedent. Pandit Nehru observed more than
1. Castairs R: The Little World of an Indian District Officer (Macmillan Lon. 1912) p. 13-15.
.,
SOCIOLOGICAL SCHOOL 113
?nee that the nineteen~~ century dogmas and legal precepts had little validity
m _the changed conditions o! the twentieth century and therefore, undue
reliance on precedent was of httle use as ~t may fail to give a new sociological
With the in~ependence ~f Indi~, a new Constitution was adopted for the
country embodying the social ,Philosophy and economic values towards
attainment of an egalitarian welfare. State. A separate chapter on fundamental
ri~t~ including indi~idual rights and freedoms and a chapter on directive
pnnc1fles_ of State p~li~y comprising social rights has been incorporated in the
Constitution of India and the Judges have endeavoured to harmonise the
~d~':idual :~ghts with the_ social int~rests of the community through their
JUdi?al _d~c1sions. The ~ction of law is to resolve the conflict between rights of
the individual and the mterests of the society. Therefore, there is n:o conflict
b~tween fundamental ~ghts and directive principles of State policy as both are
armed at ushering a egalitarian society for the welfare of the nation as a
whole. 2 The legal philosophy enshrined in the Preamble and chapters on
fund:imental rights, directive principles, fundamental duties,3 provisions
relating to powers and functions of the judiciary and amendment of the
Constitution amply demonstrate that the entire focus is on the welfare of the
The welfare legislation for socio-economic justice started in India from
1950 when various States enacted Zamindari abolition laws for
implementation of land reform measures. It led ·to several constitutional
amendments ~s these laws were challenged on the ground of being violative of
fundamental nght to property4 under Article 31 as also Articles 14, 19 and 21.
The nationalisation of big industries, banking5 and insurance business and
abolition of Privy Purse6 was also challenged on similar grounds. The welfare
schemes for a~tainment of s_ocio-economic justice were being held up due to
fundamental nght under Article 31 and right to equality under Articles 14/19 of
the C~ns~itu~on. Expressing concern for the delay invoJved in implementation
of social JUStice programmes, Prime Minister Jawahar Lal Nehru· criticized the
judges for being insensitive to the cause of people's welfare as the agrarian and
take-over measures of the Government were stuck down as unconstitutional
~e~~ violative of fundamental rights. He exhorted the Judges of the Apex
Judiciary, to come down from ivory lower and sympathise with the legislatures
who were striving to ensure socio-economic justice to the deprived people?
1. Part ill of the Constitution of India relates to Fundamental Rights and Part IV embodies the
Directive Principles of State Policy.
2. Keshwanand Bharti v. State of Kerala. AIR 1973 SC 1461 : Mineroa Mills v. Union of India, 1980
SC 1789; Waman Rao v. Union of India, AIR 1980 SC 271.
3. Art. 51- A.
4. Kameswar v. State of Bihar, AIR 1~51 Pat. 91 ; Bela Banerjee v. State of West Bengal, AIR 1954 SC
170; State of West Bengal v. Subodh Gopal, AIR 1954 SC 92 1· Sagir Ahmad v. State of U. P. AIR
1954 SC 728. ,
5. R. C. Cooper v. UOI, AIR 1970 SC 564.
6. Madhav Rao Scindia v. UOI, AIR 1971 SC 530.
7. V. R. Krishna Iyer: Some Half Hidden Aspects of Indian Social Justice (1979) p. 81.
114 JURISPRUDENCE AND LEGAL THEORY
The· Supreme Court on its parts, cot4d not dilute the sanctity of
fundamental right to property, equality, lib~rty and freedoms_ granted ~o
citizens under Article 19 and therefore struck down the soc10-econonuc
legislative reforms though convinced of its necessity in the. interest _of the
welfare of the people, particularly, the poor, landless and depnved secti?115 of
the society. The situation remained more or ~ess uncha~ge~ ~~-1 the
Constitution 42nd Amendment Act, 1976 and insertion ?f word soaalist m ~e
Preamble of the Constitution. This is clearly reflected m the Supreme Courts
decision in Minerva Mills Ltd. v. Union of India, 1 · wherein the Court
observed:-
"The significance of the perception that Parts III and IV together
constitute the core of commitment to ,social revolution and they toge~er,
are the conscience of the Constitution is to be traced to a deep understandmg
of the scheme of the Indian Constitution .............. They are like twin
formulae for achieving the social reyolution. The balance betwe~ ~arts m
and N is absolutely necessary to maintain harmony of the Constitution and
it is the basic feature2 of the Constitution. The rights under Part Ill are not
an end in the~elves, but they are means to an end, which is specified in
Part IV".
Thereafter, the Apex judiciary adopted a pragmatic approach in deciding
the claims of social justice of the poor and disadvantaged people as evident
from the catena of cases handed down by it in a subsequent years.3
The Apex Cou:rt in State of Kerala v. Thomas, 4 inter alia observed : ·
Social justice is the conscience of the Constitution, the true strength
11
and stability of our policy is in social justice ...... Social justice is a dynamic
device to mitigate the sufferings of the poor, dalits and weaker sections of
society and elevate them to the level of equality to live a life with
dignity .... Social justice and equality are complementary to each other so
that both may maintain their vitality."5
Constitutional Mandate £9r Social Justice:
The Constitution of India envisages as egalitarian society ensuring
equality to all citizens regardless of caste, creed, religion. Article 38
particularly mandates the State to accord socio-economic justice to make the
life liveable with human dignity. Besides the directive principles enshrined,
in Part IV of the Constitution, there are some other provisions which extend
protective discrimination to the depressed and oppressed sections of the society
so as to ensure social,justice for them. Some of them are as follows:--'-
1. AIR 1980 SC 1789 (1806).
2. The basic feature lheory was evolved in the historic decision in Keswananda Bharti v. State of
Kera/a, AIR 1973 SC 1461.
3. Ratlam Municipal Council v. Vardichand, AIR 1980 SC 1622; D.S. Nakara v. UOI, AIR 1983
SC 130 ; Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495; Olga Tellis v. Bombay
Municipal Corportuion, AIR 1986 SC .5 62; Unni Krishnan v. ]tate of A.P., AIR 1993 SC 2178;
Consumer Edu. ~tre v. UOI, AIR 1995 SC 922 etc.
4. AIR 1976 SC 490.
5. Consumer EducaUon & Research Centre v. UOI, AIR 1995 SC 923 (938).
SOCIOLOGICAL SCHOOL 115
Article 15 (1) and (2) prohibit discrimination between citizens on grounds .
of religion, race, caste, sex, place of birth etc.
Article 15 (3) provides exception in favour of women and children.
Article 16 (1) provides for preferential treatment to Scheduled Castes and
Scheduled Tribes in matters of jobs and services. It also upholds carryforward
rule where vacancies reserved for these castes could _not be filled up for any
reason.
Though reservation for women in government jobs has already been
provided but the Bill regarding 33 per cent reservation for women in Parliament
and State Legislatures, still hanging approval.
The Right to Education Act, 2009 providing for compulsory education to
children upto the age of 14 years, which was one of the directive principles has
now been accorded statutory recognition by this progressive legislation.
The welfare legislations enacted during the post-independence era amply
demonstrate that the British-oriented Austinian concept of law has no place in
the modem Indian democracy and has been completely discarded and replaced
by the Pound's theory of law as an instrument of social change. The
establishment of Human Rights Commission, Women's Commission, Family
Courts, · Industrial Tribunals, Administrative Tribunals, Ombudsman,
Panchayati Raj, Lok _Adalats, etc. are only a few illustrations to suggest that
the sole objective is to make justice available to a common man and ameliorate
the sufferings of masses including women, children and other neglected and
weaker sections of the society.
The laws relating to consumer protection, dowry prohibition, abolition of
bonded labour, control of environmental pollution etc. have been enacted to
provide social justice echoing the hopes and aspirations of the people. Some of
the post-independence socio-economic legislations to meet the social needs and
establish a social order as contemplated by the Constitution, are enumerated as
follows:-
1. The Civil Rights Act, 1955
2. The Bonded Labour (Abolition) Act, 1976
3. The Immoral Traffic (Prevention) Act, 1956
4. The Probation of Offenders Act, 1958
5. Maternity Benefit Act, 1961
6. The Medical Termination of Pregnancy Act, 1971
7. The Equal Remuneration Act, 1976
8. The Family Courts Act, 1984
9. The Child Labour (Prohibition & Regulation) Act, 1986
10. The Legal Services Authorities Act, 1987
116 JURISPRUDENCE AND LEGAL THEORY
11. The Environment (Protecti~n) Act, 1~86
12. The Prevention of Corruption Act, 19~8
13. Juvenile Justice (Care and Protection Qf Children) Act, 2000
14. The SC & ST (Prevention of Atrocities)'Act, 1989
The Prohibition .of Child Marriage Act, 2006
15.
16.
The National Commission for Women Act, 1990
17.
The Public Liability Insurance Rights Act, 1991
18.
The Protection of Human Rights Act, 1993
Pre-Natal Diagonistic Techniq,µes Act, 1994
19.
20.
The Panchayat (Extension to Scheduled Areas) Act, 1996
FEMA, MRTP, 1 COFEPOSA. Acts, etc.
21.
22.
The Dowry Prohibition Act/1961
23.
The Protection of Women From Domestic Violence Act, 2005
The Welfare of Parents & Senior Citizens Act, 2007, etc. 2
24.
25.
Protection of Children from Sexual Offences Act, 2012
26.
Protection of Women from Sexual Harassment at Workplace Act,
2013.
27. The Right of Children to Free and Compulsory Education act, 2000. ·
The developing trends in public interest litigation has opened new vistas
for interpreting law in the context of social setting. The contribution of Judges
notably, Dr. P.B. Gajendragadkar, P.N. Bhagwati, D.A. Desai, Krishna Iyer
and others to the development of new Indian jurisprudence based on hard
realities of life further shows that law can effectively be used as a tool of
social transformation for creating a new social order with primacy to social
justice. Highlighting the need for a new sociolo?i~al juri~prudential approach,
the former Chief Justice of India, P.N. Bhagwah, mter-alta, observed :
"Today a vast social revolution is taking place in the judicial
process, the law is fast changing and the problems of the poor
are coming to the forefront. The Court has to innovate new
methods and device new strategies for providing access to
justice to large masses of the people who are denied their basic
human rights and to whom freedom and liberty has no
meaning". 3
Agai~, in Indra Sawhney v. Union of India, 4 Mr. Justice P.B. Sawant
observed:
"The Constitution being essentially a political document has to
be interpreted to meet the "felt necessities of the time". Our
1. Now called the Competition Act, 2002.
2. The list is only illustrative and not exhaustive.
3. S.P. Gupta v. Union of India, AIR 1982 SC 49 (189).
4. AIR 1993 SC 447 (634).
SOCIOLOCICAL SCHOOL 117
Constitution, unlike many others, incorporates in the
framework of the social change that is desired to be brought
about. The change has to be ushered in as expeditiously as
possible but at the same time with least friction and
dislocation in national life."
Mr. Justice K. Ramaswamy has expounded the concept of social justice in
Consumer Education Research Centre v. Union of India, 1 and observed:
"The Preamble and Art. 38 of the Constitution of India-the
supreme law envisages social justice as its arch to ensure life to
be meaningful and livable with human dignity. The concept of
social justice which the Constitution of India engrafted,
consists of diverse principles essential for orderly growth and
development of personality of every citizen. 'Social justice' is
thus an integral part of justice in a generic sense. Justice is genus,
of which social justice is one of its species. Social justice is a
dynamic device to mitigate the sufferings of the poor, weak,
dalits, tribals arid deprived sections of the sodety .and to
elevate them to the level of equality to live a life of dignity of
person. Social justice ... is an essential part of complex of social
change to relieve poor, etc. from handicaps, and to make their
life livable for greater good of the society at large ... "
In S.R. Bommai v. Union of India, 2 a special nine Judge Bench of the
Supreme Court passed a landmark verdict on the issue of secularism and held
that the State is enjoined to award equal treatment to all religions and
religious denomination. The Court remarked :
"Secularism is part of the fundamental law and basic structure
of the Indian political system to secure to all its people socio-
economic needs essential for man's excellence with material
and moral prosperity and political justice."
Article 25 of the Constitution empowers the State to make legislations for
social reforms in the semi-religious matters. Accordingly, in persuation of
policy of rendering social justice and economic. security to a divorced Muslim
wife and protecting her against social misery and economic impoverishment,
the Supreme Court, in Shah Bano 3 case applied Section 125 of the Code of
Criminal Procedure, 1973 which provides for the duty of maintenance and
observed that payment of mehr and maintenance during iddat period did not
absolve the Muslim husband from the duty to maintain his divorced wife and
he was under an obligation to pay maintenance to his divorced wife beyond the
iddat period. It is, however, a different matter that Parliament adopted a
policy of appeasing the minority community and in order to undo the effect of
Shah Bano decision, enacted Muslim Women (Protection of Rights on Divorce)
1. AIR 1995 SC 922 (938).
2. AIR 1994 SC 1918.
3. AIR 1985 SC 955.
118 JURISPRUDENCE AND LEGAL THEORY
\
Act, 1986. and absolved the Muslim husband to pay the divorced wife beyond
the iddat period and thus frustrated the hu~anitarian effort of. the Apex
Court.
In yet another significant judgment in Noor Saba Khatoon v. Mohd
Quasim 1 the Supreme Court has held that a divorced Muslim woman is entitled
to claim maintenance for her children till they become major. The Court held
that both, under the Muslim Personal Law and under Section 125 of the Code of
Criminal Procedure, 1973, the obligation of the father was absolute when the
children were living With the divorced wife. The Court gave this ruling while
allowing an appeal by Ms. Noor Saba Khatoon challenging the judgment of the
Patna High Court which had reduced the amount of maintenance. The Court
clarified that the High Court fell in complete error to hold that the right to
maintenance of the children under Section 125 of Cr.P.C. was taken away and
suspended by Sectioh 3 (1) (B) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 as this right was not restricted, affected or controlled by
divorced wife under the said Act. According to the Court, "the purpose of these
provisions was to provide immediate means of subsistence to the divorced
Muslim woman before she withered away by hard way of life and realities for
want of means and they were applicable to all applicants irrespective of the
community, caste or creed they belonged to".
. In ~he po~t-in~~pendence perspective, social justice means the quality of
bemg fair and JUSt U'\ social relations of human beings .. The attainment of social
justice within family has been rendered possible by elimination of some of the : ""~-,
unjust, discriminatory and exploitative usages of personal laws which w~re
adversely affecting the vulnerable members of family such as women and
child~en. This was dohe by codification of Hindu personal laws during 1955-56
d~sp1te ste~ opposition from orthodox section of the Hindu community. The
Hmdu Marriage Actj 1955 introduced the concepts of monogamy, inter-caste
m~rriage, and _matrifhonial remedies like divorce by consent, alimony, etc. The
Hmdu Succession Att; 1956 recognised widows absolute right to property of her
~us~a~d, equal sh~re among legal representatives without gender bias,
hm_itahon on rule bf survivorship. Likewise, the Hindu Adoption &
Mamtenance Act con.ferred right on women to adopt a child. In this way, major
segment of the Ind.tan population has been emancipated from orthodox,
irratio~al_ and di~cri:mmatory age-old practices and is now being governed by
the principles of JUStice, equality and liberty, thus ensuring social justice within
the family.
. . Ju~iciary's favourable response to sociological jurisprudence and social
Justice 1s also refl~e;:ted in its exercise of the power of judicial review in land-
ref~rm legislation. The Agrarian reforms introduced by the government as a
social _we~fare measure were struck down by the Supreme Court2 holding that
Constitution Amenclment Act was a 'law' within the meaning of Art. 13 and as
1. AIR 1997SC 3280.
2. ~';. 5._hankari PraSli<ld v. Union of India, AIR 1951 SC 455 (458); Sajjan Singh v. State of Rajasthan,
A 965 SC 845;- Golak Nath v. State of Punjab, AIR 1971 SC 1643.
SOCIOLOGICAL SCHOOL 119
such Parliament could not take away or abridge. fundamental right by
amending1 the Constitution under Art. 368. Thus the implementation of socio-
economic reforms in pursuance of directive principles of State policy were
thwarted. However in Keshavananda Bharti's case,2 the Supreme Court by a
majority of 7 : 6 held that Art. 368 does_ not empower the Parliament to amend
or alter the basic structure of the Constitution. Thus realising the need for a
1
living law', the Apex Court cleared the_ path of Parliament to usher a
socialist, secular and democratic society in India.
It may be seen that during the preceding three clecades or so, the judiciary
is making all efforts to take justice to the common men who have hitherto
remained exploited, 3 discriminated4 and deprived of social justice.5 It is
heartening to note that the courts have now acquired a firm social philosophy
founded on humanism, socialism and secularism. In fact, Indian law has
progressed so well over the years that it has marched far ahead of the Pound's
theory of sociological jurisprudence.
The Constitution of India has established 'rule of law' by incorporating
the principles of natural law philosophy as an integral part of Indian
jurisprudence. Part III of the Constitution confers fundamental human rights
while Part IV embodies directives to the state to initiate necessary steps so as
to promote a social order in which justice shall infirm all the institutions of
._ national life. Arts. 226, 227, 136 and 32 further seek to make human rights a
living reality by protecting people against tyranny, discrimination or
exploitation. In order to strengthen natural law and 'rule of law', the Supreme
Court handed down the theory of 'Basic Structure' in the historic Keswanand
Bharti's case6 which restricted the unlimited power of the Parliament to
amend any part of the Constitution.. In other words, the Parliament cannot
make use of its amending power in a manner as to destroy.the basic features of
the Constitution? The fundamental rights are not absolute but they are subject
to reasonable restrictions so that enjoyment thereof is not arbitrary or excessive
and against the interest of the public or the nation.
The ultimate object of socio-economic justice is to protect the diginity of
human personality and to ensure prosperity of people as also the State. The
efforts of the Election Commission to wipe out corruption from public life and
crusade against corrupt politicians irrespective of rank or position has surely
helped in boosting up the public morale demonstrates that law has a
1. The Constitution First (1951), Fourth (1955), Seventh (1961), 21th, 25th & 29th Amendment
Acts. ·'
2. AIR 1973 SC 1461.
3. Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297.
4. Air India v. Nargesh Meerza, AIR 1981 SC 1829.
5. Asiad Case, i.e., People's Union for Democratic Rights v. Union of India, AIR 1983 SC 1473;
Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753; Neerja Chaudhri v. State of M.P., AIR
1984 SC 1099; Bandhu Mukti Morcha Case, (1991) 4 SC 177, etc.
6. AIR 1973 SC 1461.
7. Mineroa Mills Ltd. v. Union of India, AIR 1980 SC 1789; see also Waman Rao v. Union of India,
AIR 1981 SC 271.
120 JURISPRUDENCE AND LEG1L THEORY
\
constructive role to play in a welfare State.i . Unfortunately, the entry of
criminals and persons of doubtful integrity and chequered past into Indian
public life has posed a serious threat to Indian democracy in recent years and
therefore, it is high time when the fraternity including the lawyers, Judges and
jurists must unite to eradicate this menace through resources to law and judicial
process so that people's faith in dwindling democratic institutions can be
restored.
It hardly needs to be reiterated that law as an instrument of social
engine.ering is inextricably connected with society, both regulating and
maintaining order and bringing about !-eform and progress. It effectively
addresses the prevalent social problems and their solutions, through a legal
approach. The role of the judiciary in th~ process of social transformation and
application of law in accordance with n~d of the times is no less important. It
seeks to protect people from oppression and in upholding the rule of law. · that some authorities have called Realist approach as the 'left wing of the
000
I.
6
REALIST THEORY OF LAW
The realist movement in United States represents the latest branch of
sociological jurisprudence which concentrates on decisions of law courts. The
realists contend that law has emanated from judges, therefore law is what ·
courts do and not what they say. For them, Judges are the law-makers.
However, moden Realism differs from sociological school as unlike the latter,
they are not much concerned about the ends of law but their main attention is on
a scientific observation of law and its actual functioning. It is for this reason
functional school'. The contention of realists is that judicial decisions are not
based on abstract formal law but the human aspect of the Judge and the lawyer
also has an impact on court's decisions. Some quarters feel that realist
movement in the United States should not be treated as a new independent
school of jurisprudence but only a new methodology to be adopted by the
sociological school.
According to Friedmann, the mental founders 1 of the Realist movement in
America were Oliver Windell Holmes, Gray, Cardozo and Jerome Frank who
emphasised on functional and realistic study of law not as contained in the
statute or enactment but as interpreted and laid down by the Courts in their
judicial pronouncements. Cardozo preferred to study law in terms of existing
social situations and its actual functioning in the society and therefore modem
realists have termed realism as the !eft wing of the sociological jurisprudence.
Realism-What Exactly It Means?
It was around 1930's that some American jurists notably Holmes, Cardozo
and Gray raised their voice against legal conceptualism and stressed on the
study of law as it actually operates and functions. They were called realists
and they combined analytical positivism and sociological ideologies in their
legal approach to law and social institutions. Roscoe Pound has defined realism
as, "fidelity to nature, accurate recording of things as they are, as contrasted
with things as they are imagined to be, or wished to be or as one feels they
ought to be". In other words, realism is anti-thesis of idealism. Some jurists
refuse to accept realism as a separate school of jurisprudence and hold that at
the best it may be called a branch of sociological jurisprudence. 2 It may
preferably be termed as a method of scientific approach to law. Realists
uphold only Judge-made law as genuine law and they do not give any
importance to laws enacted by legislatures. Realists believe that 'certainty of
1. Friedmann : Legal Theory (5th ed.) p. 293.
2. Llewellyn, K.N . : Some Reflections About Realism - Responding to Dean Pound (1931) 44 Har. L.
Rev. 1234.
(121)
 122 JURISPRUDENCE AND LEGAL THEORY
i
. \
law is a myth'. Elaborating the point further Jerome Frank has stated "law is
what the Court has decided in respect of any particular set of facts, prior to
such a decision, the opinion of lawyers is only a gu~ss as to what the Court will
decide and this cannot be treated as law unless the ·Court so .decides by its
judicial pronouncement".1
It must be stated that realist movement in United States owes its -origin to ·
pragmatic approach to law in early decades of twentieth century. The
progressive legal thinkers denied to accept law as an abstract conception and
tried to base .it on actual facts and actions. This inspired jurists to concentrate
more on courts to know the actual working of law and determine those factors
which influence court's decision.
Realism has emerged as a logical movement of sociological jurisprudence.
It has been characterised as a "revolt agaµ1st formalistic attitude of analytical
jurists like Austin, Bentham, Stuart Mill
the British empirical school. 2
etc. who were staunch supporters of
Basic Features of Realist School
Realism denounces tradi3onal legal rules and concepts· and concentrates
more on what the courts actually do in reaching the final decision in the case
before them. In strict sense of the term, realists define law as generalised
prediction of what the courts will do. The main characteristic features of
realist jurisprudence as stated by Goodhart are as follows : -
(1) Realists believe that there can be no certainty about law as its·
predictability depends upon the set of facts which are before the court for
decision.
(2) They do not support formal, logical and conceptual approach to law
because the Court while deciding a case reaches its decision on 'emotive' rather
than logical grounds.
(3) They lay greater stress on psychological approach to the proper
understanding of law as it is concerned with human behaviour and convictions
of the lawyers and Judges.
(4) Realists are opposed to the value of legal ter~inology, for they
consider it as tacit method of suppressing uncertainty of law. 3
(5) They prefers to evaluate any part of law in terms of its effects.4
According to Karl Llewellyn, there is no realist school as such, it is only a
movement in thought and work about law. It presupposes that law is
intimately connected with the society and since the society changes faster than
law, there can never be certah.1ty about law. There is no place for idealism in
law and therefore, law as it 'is' must be completely divorced from law as it
1. Frank Jerome: Law a,1d the Modern Mind (1930) p. 46.
2. Karl Llewellyn and the Realist Movement (1973) p. 9.
3. Leon Green : The Duty Problem in Negligence Cases (1928) 28 Columbia Law Review 104.
4. See Friedmann op. cit. p. 200-201.
REALIST THEORY OF LAW 123
'ou ht' to be.t Sine~ realists consider law as what the courts do wit~ refere~ce
t g ·ven set of facts to reach a decision, they lay greater emphasis Qn ease-
l~.; ~ethod of the study of law. Statutes are accepted as 'law' only when they
have been approved as law by a Court decision'.
Karl Llewellyn (1893-1%2) . ,
· Karl Llewellyn was a Professor of Law at the Columbi~ 1!niv.ersity. He
confessed that there is nothing like Realist school~ inst~ad. 1t _is a particular
approach of a group of thinkers belonging to the soc10log1cal Jurisprudence. ~e
considered law as means to a social end and suggested evaluation of law m
terms of its actual effects without giving mµ.ch importance to form~ conceptual
rules. According to him, the traditional outlook that the rules decide cases and
therefore, they should be looked into the law books h~s become ~ut~ated and
now the focal point of attention should be the behaviour and thmkm~ of the
deciding Judges or the Court. Hence, there is need to shift the emp~as1s ~om
precedent to the study of case-law. The main features of Llewellyn s realism
may briefly be summarised as follows : -
(1) Llewellyn acknowledged the fact that there is larg: measu~e. of
predictability in case law attri~u~able to th: general "cr~ft . ~f decis~on
making. He placeg reliance on insight and wisdom o~ the Judiciary w~ich
enables Judges to achieve objective criteria so as to arnve at the appropriate
legal solutions. This brings about consistency in the treatment of cases .c1.nd
thereby promotes the cause of Justice.
(2) Llewellyn described law as "what officials do about disput~s" ~d
insisted that law should be evaluated in terms of ih~ effects. Therefore, Judicial
creation of law is of foremost importance.
(3) He argued that society changes faster than law and ~herefore, there is
constant need to examine how law meets the contemporary social problems.
(4) He found no harm in divorcing 'is' from 'ought' for the purpose of study
in judicial process and concentrated on need for examination as to how law
factually operates in the society.
(5) He considered defining law solely in terms of legal rules a~d
traditional legal theory as absurd as there are many other influences which
affect the decision of the courts.
(6) He emphasised on sustained and programmat~c ev:aluation an1
examination of law through judicial process in terms of changmg circumstances.
In essence Llewellyn's philosophy of law favours expansion_ of
jurisprudential thinking beyond the rules of law proper and take mto
consideration the ideology and factual situation. He was averse to the theory
that "rules decide the cases". The focus of jurisprudential study s~ould
therefore be shifted from the study of rules of law to the actual operation of
1. Llewellyn, K.N.: Some Realism !lbout Reali~m_, (1931~ 44 Har. L. Rev. 1222.
2. Dias, R. M. W. : Jurisprudence (5th Ed) Indian Repnnt, 1994 p. 455.
 124 JURISPRUDENCE AND LEGAL 1HEORY
law· applicable to a given case. Thus, judici'al tradition on which Court
decisions are based should receive primacy rath~r than the rules contained in
law. ·
Jerome N. Frank (1889-1957)
Jerome Frank was initially a practising lawyer. He served in the Law
Dep~ent of the_Govemment_ for _ab~ut a decade. In,1941,he was appointed as
a Judge m the Uruted States C1rcu1t Court. He was also a visiting Professor of
Law in Yale Law School.1 - ·
_Frank expla!t'ed his views about realistic approach to jurisprudence in his
clas~1c wo~k entitled~ I.Aw and t~e Modern !>'f.ind. He exploded the myth that
law is continuous, _uniform, certau:1 and ~variable and asserted that the Judges
do ?<?t make law, mstead, they discover It. According to him, the individual
dec~s~on of the Judge is law par e_xc~lletfv, He reiterated that law consists of
decis10ns and the personal convichons; likes and dislikes, emotions. The
. temperament of the Judge has an important bearing on the mechanism of law.
Thus Frank made 'fact-finding' by the court as the central theme of his realism
in w~ch the personality of the Judge and his past experience play a dominant.
role m moul?ing ~he law and giving -it a concrete shape. He emphasised on
study of law m action and Court room, not the library, should be the laboratory.
. _Frank emphasised that law is not merely a collection of abstract rules and
that l~g~l uncertainty is inherent in it. Therefore, mere technical legal
analy_s1s IS not enough for understanding as to how law works. For example,
fa~ m a legal case have to be established by witnesses who may or may not be
telhng the truth_ and it is for the Judge to discover and ascertain what the
actual facts are in the case before him.
Having practically worked as a Judge of the U.S. Circuit Court, Frank did
not completely discard the value and importance of legal rules and precedents.
He _r~cognised that rules of law provided guidance for a Judge in making
dec1s1on as they embody2 the policies and ideals of the law-makers. But he
maintained that where such laws are frustrating s}lly, vicious or idiosyncratic,
the Judge should resort to objective fact finding process to reach his decision.
John Chipman Gray (1839-1915)
According to Gray, law is what Judges d~clare and it includes the rules
which the Judges of the courts lay down for determination of legal rights and
duties of man. For him, laws made by legislators are mere 'dead words of the
statute' and Courts put life into them through judicial interpretation. Thus
Judges play·a crucial role.in making laws in a: given social system.
·,
Benjamin N. Cardozo (1870-1938)
Cardozo was mostly associated as a lawyer or a Judge in appellate courts.
He made significant contribution to the development American realism through
1. The main works o_f Jerome Frank are Lai;; and the Modern Mind (1930); If Men Were Angels
(1942); Court on Trial (1949).
2. Bodenheimer E: Jurisprudence, (1961) p. 199.
REALIST TIIEORY OF LAW 125
his comprehensive analysis of judicial process. He strongly believed in
adherenc;e to judicial precedents in_ the administration .of justice. However,
leaving a caution he said that precedent may be relaxed or ignored where it is
blatently inconsistent with the sense of justice or with the social welfare.
According to Cardozo, the forces which influence t~e progress and
development of law are history and customs and accepted norms of righteous ·
conduct, and these must be amply reflected in the judgments which the Judges
make.
Oliver Windell Holmes (1841-1934)
The noted American Jurist Oliver Windell Holmes discussed law from the
point of view of "the bad man", i.e., the person who was before the Court as an
accused or a wrongdoer. He pointed out that the accused or the wrcmgdoer, as
the case may be, had no interest in axioms or deductions but simply wanted a
prediction of what the Court would do (decide) in his particular case. In most
cases, the court is virtually certain to decide in a particular way. Thus what
matters to the person who is standing trial before the Court is whether he will
win or lose, and what are the likely effects of winning or losing the case on him.
The concern of the Judge is to do justice in the case before him and if that
required a creative interpretation of existing rules, he sould certainly resort to
it.
The duty of the Judge is to apply the law as he finds it and not to seek to
rectify perceived · inadequacies by the use of creative interpretation. Holmes
asserted that where there is a gap in the law, Judges a·re required to· take
account of precedent but where this is unclear, he must deci.de the best way to
proceed and the result may be a decision which is in some way innovative but
the fundamental principles are always part of the law.
Justice Holmes had a long tenure _as a Judge of the American Supreme
Court. He emphasised that "the life of the law has not been logic, it has been
experience. To quote his words; he observed :1
"The felt necessities of the time, the prevalent moral and political
theories, institutions of public policy unconscious prejudices which Jud~es
share with their fellow-men, have a good deal more to do than the sylgism
in determining the rules by which the men should be governed._ The la~
embodies the story of nation's development through many centunes and 1t
cannot be dealt with as if contained only the axioms and corollaries of book
mathematics."
· Justice Holmes believed that Judges and lawyers are well acquainted ';ith
1
':$ the historical, social and economic aspects of law and, therefore, they are ma
position to appreciate the practical problems involving case before them for
adjudication. Thus adopting a pragmatic_ approach t? law ~e stated Ju~ges and
lawyers should interpret law as it is without cons1derahon of what 1t ought
tobe.
1. Holmes : The Common Law (1923 Boston) p. 1.
 126
JURISPRUDENCE AND LEGAL THEORY
Thurman Wesley Arnold (1891-1963) , \
Professor Arnold was born in 1891. He pr~t~ed law at Washington D.C.
and was Dean of Law College, West Virginia Uniyersity and also worked as
Professor of Law at Yale. 1 He served in the departmeht of Justice for a long time
and was then appointed as an Associate Justice of the US Court of Appeals for
the District of Columbia.
Arnold treated politics, economics, law and other disciplines relating
to social sciences as indispensable social institutions based on common
values such as habits, attitudes, traditions, creed etc~ :He stated that the mle
of law is best preserved by coordi:nating the various conflicting ideologies.
He asserted that every social institution including l~w is based upon some
common elements such as creed, attitudes, habits and mythological or
historical traditions. He considered constitution as a creed which has its
inflµence on policies of the State and convi~ons ofits people. According to him
the .rule of law is best preserved by the co-existence of various crmflicting
~deologies. . . . /. .· ·
Scandinavian Legal Realism ..·.. . . the present-day society.
Besides the Ameritan realist m9v~;m-~ ~,"; Sllll~ltaneous wave of realism
also developed in Sweden whidt Wa$,·,pfoneered; ;_by Professor Hagerstorm,
Olivecrona, Alf Ross and other Sccmdinavian jutjsts. There was, however, one
material difference between . the American realism and the Swedish Realistic
movement. Pointing out the difference between:·'.the two, Dr. Allen observed, "If
American realism is nile skepti<;, Scanclina-trian realism may be described as
metaphysical skeptical". 2 According to Alf Ross, 'legal .notions must be.
interpreted as conceptions of social reality, that is behaviour of men in society
and nothing else'. There is no place for a priori pre-conceptions for which there
is no scientific basis. Professor Olivecrona considered law as a 'set of social
facts'. Thus the Scandinavian realists discard from law all a priori notions of
natural law, ab.s tract conceptions and idealism because they are all purely
theoretical precepts without any practical utility. Supporting this contention
of Olivecrona, Professor Ross also projected a view that 'law in all its forms is a
social reality devoid of doctrinal conceptions like morality, idealism, nature
law and · theoretical (metaphysical) conceptions such as right, duty,
3
sovereignty, etc. which formed the core of analytical school of jurisprudence in
England'.
According to Bodenheimer, Scandinavian realism differs from . the
American realist school in two major aspects, namely, (1) it is more speculative
in approach to legal problems, and (2) it does not devote as much attention to
psychological behaviour of Judges as the American realists do. However, both
1. He wrote several books on Law including : The Symbols of Government (1935); Cases on Trials,
Judgment and Appeals (1936); The Folklore of Capitalism (1937); The Bottlenecks of Business (1940)
and Democracy and free E:nterprise (1942).
2. Allen C.K. : Law in the Mnking (1964) p. 48.
3. Ibid.
REALISTTHEORYOFLAW · .·,. 127
. . .. :\~:t~· ·:.
·d opt an empiricist attitude towards law and life and give more weight to. tn~ .
:ocial effects of law with emphasis on judicial decisions.1 . . ·.
The contnbution of Hagerstorm, Olivecrona, Alf Ross ~d .J;undstedt to the
realist school of jurisprudence may briefly be summarised·as foll-t>ws_,.=.~
Axel Hagerstrom (1868-1939) .
Hagerstorm is considered to be the founding father of the Realist
movement in Sweden. He was a .Professor of Philosoph~ in the Upsa~a
University a~d was greatly influenced by the legal philosop~y of his
contemporary jurists, particularly that of Olivecrona and Ross: H~ reJected the
notions of right-duty relationship anci the theory of legal obligations beca~e
they do not have any objective basis. For him, these are merelr psychological
notions ..He also denounced the notions of good or bad_ as they srmply_ ref resent
the subjective attitude of approbation or disappro~aho? towar~s certain facts
or situations. He emphatically stated that idealism m l~w ~s. a matter of
personal evaluation whic~ ca~ot be subje_cted to ~ny s~ientific pr~cess of
examination. Therefore, it 1s futile to probe into the ought aspec_t of law a~d
the jurists must confine themselves to the study of actual functiorung of law m
·
Karl Olivecrona (1897-1980)
· Born in 1897, Professor Olivecrona's. views about Scandinavian_ .r ealism
have been appreciated for their practical implications. He emphasised t!'e
study of law as a social fact. According to him, law is nothing but a 's~t of social
facts'. He rejected the view that laws are a command o~ an exJ?res~1~n of the
will of the State and argued that they are 'independent imperatives 1Ssu~d by
constitutional agencies of the State from time to ti~e.and they :operate 1? the
mind · of the Judge' while reaching a particular decis10~.· For him, there lS no
such thing as the binding force of law; it is a myth. For instance, a perso1:' may
break the law and go undetected yet no one would say that the law ~s n?t
binding on him. In his opinion, the notion of binding force of law 01:'ly exists m
the mind of a person because of the psychological pressures w~ch exe~t ~
influence on his conduct and motivates him for regularity of behaviour which lS
an attribute of a legal system.
Adopting an acceptable moderate view about the form of scepticism, Karl
Olivecrona refrained from defining law and preferred to analyse tp.ose facts
which are covered under Rules of law.2 He agreed that law has a_bi11d~g for~e
and is valid so long as it has a binding force, and therefore, .an mv~bd _law IS
not binding. Divorcing morality from law, he observe_d that la~ IS bmd_mg
whether or not it is consistent with morality. He also disagrees with the view
that binding force lies in the consent or 'will' of the State.
Olivecrona propagated the view that law is a set of 'i~dependent
imperatives' prescribed by law agencies, such as Courts, Parhament, etc.
1. Bodenheimer: Jurisprudence (1962) p. 120.
2. Olivecrona: Law as Fact (2nd Ed 1971) p. 26.
----
128 JURISPRUDENCE AND LEGAL THEORY
producing a set of social facts based on the application of organised force of the
State. . \ · ld th111
Alf Ross (1899-1979)
Alf Ross was born in 1899 and was a D~nish jurist. Like Olivecrona,
he also asserts that law or legal notions must be interpreted as conceptions
of social reality which is nothing but the actual behaviour of man in
society. He follows the American line of approach and accepts the authority
of the Court to expound law. In his view, laws are the legal norms in the form of
directives addressed to the courts. These norms of conduct, i.e., laws may be of
two types, namely (i) norms of conduct which deal with behavioural aspect of
law; and (ii) norms of competence or pro~edure which prescribe the mode of
procedure to be followed for determining the norms of conduct. Ross pointed out
that while deciding a case, the actual past behaviour of the Judge as well as
the set of ideals by which he is motivateq. must be taken into account in order to
determine the predictability of law in future.
According to Ross, validity of law lies in the predictability of decisions.
Valid law implies "the abstract set of normative ideas which serve as a
scheme of interpretation for the phenomena of law in action. These norms are
effectively followed because they are felt to be socially binding by the Courts
and other legal authorities which apply the law". Norms are therefore,
observed as law because they are felt by the Judge to be socially binding and
therefore, obeyed. A norm is valid if it is predictable that a Court will apply
it.
Ross commented that a "national law system, in an integrated body of
rules, determining the conditions under which physical force shall be exercised
against a person. "1
V. Lundstedt (1882-1957)
Vilhelm Lundstedt rejected all English conceptual theories of law which
are metaphysical in nature and have only theoretical significance. He
emphatically stated that law is not founded on the notion of justice but it is
based on social pressure and needs of the society. The ni.ost striking feature of
Lundstedt's realism is assertion that law at any time, place and society is
determined by 'social welfare' which is the guiding motive for legal activities.
Therefore, Judges should think in terms of social we1fare and in terms of rights
and duties. The sense of ·security ·is the main force behind social welfare and
therefore, Lundstedt was inspired to extend the principle of strict liability in
matters relating to disputes concerning torts, contract and criminal law with a
view to preventing disruption of the society.
Lundstedt regarded law simply as the fact of social existence in organised
groups which makes the co-~xistence of people in society possible. He rejected
the traditional concepts of right or duty and asserted that law simply consists
of rules about the application of organised force. He observed that Judges
1. Alf Ross: On Law and Justice (1959) p. 172.
REALIST .THEORY OF LAW 129
. k 111
· terms of social aims and objectives and not rights or duties. He
f red to use the term 'social welfare' in p 1ace o f •·JUS t·ice • w h ic
shou · h lay in
~~:u::ng proper food, clothing, shelter, security _of l~fe and l?roperty, free~om of
action and protection of spiritual interests. In his view, s~c1al w~lfare ~tnves to
attain a balance between all other competing interests without mtrus1on of set
values. 1
These Scandinavian realists parelled American ~ealist m~vement
while presenting a more scaptical challenge to legal ~easom~g ~nd discourse.
Their approach was simple and they wanted to get nd of thmkmg about ~aw
of all the mystifying references to abstract concepts and metaphysical
entities.
Friedmann has summarised the contribution of Scandinavian realis~s to
·uris rudence and observed that Swedish reali~ts have demonstrated_ that any
\e ai order must be conditioned upon a certain scale ~f values, whic~ can ?e
as~essed not in absolute terms but with regard to social nee~s chan?,~g w~th
time, notions and circumstances as the law is directed to cert~m ends • Un~ik~
the American realists, the Scandinavians are concerned with the theorehca
working of the legal system as a whole.
Contribution. of Realist School to Jurisprudence
The main contribution of realists to jurisprudence lies in the fact th;t
they have approached law in a positive spirit and dem~mstrat~t~ _t /
futility of theoretical concepts of justice and natur~l law. Opposmg ~osibi;is. s
view, the realists hold that law is uncertam and mdetermma . e m
nature therefore, certainty of law is a myth. As Frank Jerome ngh~~
ointed out, "realist school has sought to liberate the Judges from . t
~nslavement of unduly rigid legal concepts and ex~rted t~e~ to take m:?
consideration the ground realities of _s.ocial facts ~h1le dec1dmg_ th\cases d
According to Friedmann, realist movement is an attempt to rahona i~el a~
modernise the law-both administration of law an~ t~e matena t~r
legislative change, by utilising scientific method .. and _takmg mto ac~ount 1 e
factual realities of social life'.3 For Julius Stone, Realist m?;ement :~ a g :s:
on the sociological approach to jurisprudence". He cons1 er~ r~a 1~1:11. a .
combination of the positivist and the sociologic~l _approach.
0
_l\
is _P r~v~:~:
the sense that it undertakes the study of law as !t 1s, and_ socio ogi~a, . e .
it ex ects that law should function to meet t~e e~ds_ of society· Thus m hi~:::f
reaH~t school is merely a branch of sociological 1unspr~de_nlce ~d
· 1
scientific and rationa approa~
h to law 4 Expressing s1m1 ar views,
. · . d f rm of the sociological
•
Allena~:
thinks that realist school 1s an 1mprov1se o .
jurisprudence.5
1. Lundstedt : Legal Thinking Revised p. 14.
2. Friedmann: Legal Theory (5th ed.) P· 311.
3. Friedmann: Legal Theory (5th ed.) P· 311.
4. Stone Julius: Province and Function offurisprudence (1946) P· 416.
5. Alien, CK. : Law In the Making (1964) P· 48.
 130
JURISPRUDENCE AND LEGAL THEORY
REALIST THEORY OF LAW 131
Criticism Against Realism \
The realist approach to jurisprudence has evoked criticism from many . . . much as precedents provide guidance to
role in the Indian jud1c1al syste°:1 ~as osition of the law in question. They are,
quarters. The critics allege that the exponent.s of Realist legal philosophy the presiding Judge about the ex1s _mg pd ·s1·on on the ground of inconsistency,
have completely overiooked the importance of rttles and legal principles and f t errule the previous ec1 . f· h •
however, ree o ov f d T . ns etc. assigning reasons or t eir
treated law as an assemblage of unconnected court ·decisions. Their perception of incompatibility, vagu~ess, ~ang~u;:e ~~i~ legal system, though endo~s
l~w rests upon the subjective fantacies and life-experience of the Judge who is . deviation from the ear~1er _rul~g. . . does not make them omnipotent m
deciding the case or dispute. Therefore, there cannot be · certainty and the Judges with extens1v~ 1ud1c1fl dis~=~~, islative statutes and enactments,
definiteness about the law. This is indeed overestimating the role of Judges the matter of formulation of. a':. tice an: ood conscience are indispensable
(Court) in formulation of the laws. Undoubtedly, Judges do contribute to law-
precedents ":"d -~e rules of e~u'i;;';(;': The co!titution of India itself provi~es
making to a certain extent but it cannot be forgotten that their main function is Part of the 1ud1c1al system m . "d· tion the hard realities of soc10-
to inte-r pret the law. f th Judges to take into cons1 era . . . I d
ample scope or e .
economic and cultural hfe of t e h Ind.Ian p ~ople while dispensing socia an
.
Another criticism so often advanced against realists is that they seem to economic justice to them.I
have totally neglected that part of the law which never comes before the court.
Therefore, it is erroneous to think that ~aw evolves and develops only through . h hou h Indian jurisprudence dose not
court decisions. In fact a great part of the law enacted by legislature never
comes before the court, nevertheless, it does remain a law enforceable and
applicable in appropriate cases and situations.
formally subscribe to the reahst s leJal t o~ot i r~
In short, it may be re1te~at;d t at t hil g h it does lay great stress on
the realities of social life.
the functional aspect of the law a~ ,re~ es t~at Judge-made law is the only
Again, it refuses to accept the rea is~~ v1e:ut at the same time it does not
The supporters of realist theory undermine the authority of the precedent
and argue that case law is often made uin haste", without regard to wider
implications. The Courts generally give decisions on the spot and only rarely
completely ignore the role of Judges an_ l r
real 'law' and other laws are wort ~s;he law ers in shaping the law. Thus
1 stem has developed on the
it would be correct to say that the India~ egdaby~he post-independence socio-
take time for consideration. They have to rely on the evidence and arguments f · 1 · 1 1·urisprudence as evmce . t
pattern o soc10 og1ca . . d t . of realism alien to Indian soc1e y
presented to them in Court, and do not have access to wider evideµce such as economic legislation but it considers oc ~1~e ·1. u Undoubtedly the Indian
statistical data, economic forecasts, public opinion, survey, etc. which has a different life style and soc_ia ml I ie .. ·ts contextual and social
h r b ty of interpretmg aw m 1 d
Realists have exaggerated the role of human factor in judicial decisions. Judges do have_ t e_ l er . ic olitical, cultural, historica 1 an
It is not correct to say that judicial pronouncements are the outcome of setting keeping m view the social, :cono~ t' p The power of review and the
personality and behaviour of the Judge. There are a variety of other factors as geographical varia~ion~ of th: India~. s~~1~;~ enabled the Supreme Court to
well which he has to take into consideration while reaching his decision. doctrine of overrulmg its earlier dec1s1of th onstitutional mandate2 through
h · omic contents od e c f its inherent powers. T h us the
effectuate t e socio-econ .
Last but not the least, the realist theory is confined to local judicial f · d. · I interpretation an use O • • ·
the process o JU icia . 3 rruled its earlier dec1s1on m
setting of United States and has no universal application in other parts of the
world. The Scandinavian jurist Olivecrona has, however, accepted the
Apex Court in Bengal Im~iu~ity
Dwarkadas v. Sholapur Spznnzng
ca:v:av~:e
6:'
Co 4 and observed that "the
th gthan. any decision of the Court, if
universal validity of the nature of law.
Court is bound to obey the Constitution_ r: k er,, Justifying its stand, the Court
Realism in the Indian Context the decision is shown to have been ~1tsta_ en 1· decision affects the lives and
b d th t where a consh u 1ona d . . •
further o serve a C t f ds that its earlier ec1s1on 1s
The legal philosophy of realist school has not been accepted in the sub- property of the public. a~d. where ~e ~~; ~~erest, it should not hesitate to
continent for the obvious reason that the textur~. of Indian social life is different manifestly wrong and m1unous tot e pu c
from that of the American life-style. The recent trends in the public interest overrule the same. . K h
litigation which Professor Upendra Baxi prefers to call as 'social action
litigation' have, however, widened the scope of judicial activism to a great
h J t· p B Gajendragadkar, m es
Adopting a same lin~ o! approac 'v~~ l~~at ·s~ reme Court has inherent
av
extent but the Judges have to formulate their decisions within the limits of Mills v. Income Tax Commzsswner5_ o~ser 1· r decision if it does not serve the
jurisdiction to reconsider and revise its ear ie
constitutional frame of the law by using their interpretative skill. This in interest of public good.
other words, means that the Judges in India cannot ignore the existing
legislative statutes and enactments. They have to confine their judicial 1. Supra Ch. 5. .
activism within the limits of the statutory law. Besides, the doctrine of Part III & Part IV of The Constitution of India.
precedent which has no place in the realist philosophy, plays a significant ~: Bengal Immunity Ltd. v. State of Bihar, AIR 1955 sc_661.
4. AIR 1954 SC 119 (137).
s. AIR 1965 SC 1616.

132 JURISPRUDENCE AND LEGAL TIIEORY
I Khare at the eve of retirement on May 2, 2004 observed that there is urgent
In the case of Golak Nath v. State of Pun1ab, 1 the Supreme Court speaking
through Subba Rao, CJ, (as he then was), obse~ed : - · .
"While ~rdinarily the Supreme Cou~ will be reluctant to
revise its previous decision, it is its duty on the constitutional
field to correct itself as early as possible, for otherwise the
further progress of the country and happiness. of the people
will be at a stake ... ". ' Reacting sharply to the conduct of the •Punjab & Haryana· H.1gh Court
:11'e observations made by Justice K. Ramaswamy deserve. a special
mention in context of realism in interpretation of the Constitution and the law
of the land. To quote his words, he observed : -
"The Judge is the living oracle Working in dry light of realism
pouring life or force into the dry bones of law to articulate the
felt necessities of the time ... "2 ..
The former Chief Justice of Indit Shri S.P. Bharucha expressing concern
about f~te of Ind~an J~diciary observed, "if a sizable number of corrupt Judges
oc~~pying seats in higher courts are allowed to enjoy immunity as a part of
Bntish le~acy and expose them~el~es by resorting to such nefarious steps". The
pe_opl~ wil~ regularly become, victims ~four unaccountable judiciary, therefore,
tt 1s high time when the Hon ble members of higher judiciary should seriously
think over the issue. 3
I! m~y ~~ther be stated that in an µnprecedented incident in the history
of Indian JUd1c1ary, 25 out of 28 Judges of the High Court of Punjab & Haryana
went on mass leave on 19th April, 2004 reportedly after a stand-off with Chief
Justice Shri B.K. Roy of that Court. They had sent leave applications ranging
from one to five days without ascribing any reason. However, these Judges later
s~nt applicati?n ·stating that they were resuming work due to 'changed
circumstances . The change allegedly came after the intervention of Chief
J~stice of India and one of the senior Judges of the Supreme Court. The
differences between C.J. Roy and the Judges arose because two of their
colleagues had accepted honorary membership of a club named 'Forest Hill
Country Club & Resort' against which a ·case was alre~dy pending before the
same High Court. On a PIL filed by two advocates, the Supreme Court issued
notices to Registrar of the Punjab & Haryana High Courts to furnish details of
the entire episode. . context, the best Judge is one who shapes the law to conform most closely to ~e
It is submitted that this incident sufficiently indicates as to how
unaccountable the Hon'ble members of higher judiciary are. Before resorting to
such a drastic step they should have atleast thought about the fate of number
of cases which were posted for hearing on that day, i.e., 19th April, 2004 and
the plight of the helpless litigants.4
Expressing his disappointment and concern for the growing indiscipline
and corruption in the higher judiciary, the CLef Justice of India Shri V.N.
1. AIR 1971 SC 1643.
2. Krishna Swamy v. Union of India, AIR 1993 SC 1407.
3. Reported in the Hindustan Times dated 21st April, 2004.
4. Reported by Hindustan Times 21st April, 2004.
REALIST THEORY OF LAW 133
need to empower the CJI to initiate stem action against the erring members of •
the higher courts by ~ending the Constitution so that th~ incidents like those
of Punjab & Haryar. 1 High Courts are not repeated. He said that at present the
CJI has no such power and admitted that higher j~diciary ~s. presently fac~d
with the serious problem of indiscipline ~d corruption and 1t is even worse in
the lower courts. . ,. ·
Judges in the instant case, CJI expressed a view that the "~rad_e. unionis~"
adopted by them had caused irreparable damage to the Judiciary. Their
conduct in proceeding on leave over their differen_ces relating to a~ceptance of
membership of_ a club amounted to resorting to s~1ke. The CJI re~n_m~ded .t he
Judges for their "conduct and asked them to desist from such activity in future
pointing out that the Apex Court and the High C?urts day in a~d day out gave
rulings against strikes". Hon'ble President of India, Dr. Abul Kalam .<as he ~hen
was) is also believed to have expressed "great anguish" o-~er the matter in a
letter allegedly sent .t o the Chief Justice of ~dia. C~nd~~g the ma_s~ leave,
the Bar Council of India has also raised the ISsue of JUd1c1al accountability.
Referring to the concept of judicial account~bility, Ju~tice_ Chipman Gray
. propounded his 'creative theory of law' according to which Judges are law-
makers. Creative theory of law pre-supposes that laws do not of them~elves
decide disputes, for they have to be applied to the case at hand: The fun~tI~n of
the Judge is to discover in the existing rules of law, the particular pru:~ciples
that govem the £acts of individual cases. Thus, Judges are said to be la'°': finders
rather than law-makers. In short, legal thinking should b~ ~re~ti:e ~1:1-d
purposive and not mechanical and haphazard. Though subjectivity. in Judicial
discretion cannot be altogether excluded, but an objective approach in term~ of
logic, philosophy, ~is_tory, tra~ition,. s~ia~ ~ustom_s,_ et\ need to be taken into
consideration in arriving at a nghteous Jud1c1al dec1s10n.
It must be stated that in the emerging jurisprudence of twentyfirst centu117,
· greater stress should be on accountability of the judiciary to the people _of In~ia
rather than making it supreme in the process of formulation ~f law. This realist
and moderate approach avoiding extremes is perhaps most sU1ted to the present
Indian conditions. Law should not be an obstacle to social change. In the present
desires and expectations of the people. The founders of the legal re~hs~
movement Justice Holmes, Cardozo, John Chipman Gray and others emphasise
co-related law and legal doctrines to social circumstances as t~ese are
chan eable concepts, law should be shaped by social needs a~~ interests
therety turning itself into dominant public opinion through the decisions of the
Courts.2 000
1. Luckmann: The Social Construction of Reality, (1966) p. 92.
2. Posner Richard A.: The Problems of Jurisprudence, (2010) P· 240.
I
INDIAN LEGAt THEORY 135
\

7. \ Such being the importance of ancient Indian legal theory, its study and
. \
analysis is perhaps necessary for a proper understanding of the Indian legal
INDIAN LEGAL t,-iEORY system and its jurisprudential background. As Dr. Ras Bihari Ghosh rightly
It would be iitte · · pointed out, "legal antiquities ought to engage _o ur Special. attention as Indian
legal theory in J-A1.., resting to notehthat the development of jurisprudence and legal theory offers a rich and varied fi,eld for such enquiries" .1
nu.m owes as muc to the · t tt· d
owes to the . Wettarn jurists and I 1 . anc1e1;1- m u legal thinkers as it
Indian jurists .tu-ch as Narada J . e?~ philosophers. There have been great The Concept of Dharma
Dr. P. V. Kane':1 Hi , aimm1, Yagnavalkya, Manu in the Vedic a e . The literal meaning of the term dharma is that which sustains or
Hindu dharma, cu.t;::yaZ feha:imas~astras is one_ of t~e classic works!~ upholds. It has been taken to be an elusive term which has rio exact equivalent
contains a detailed c:'iccount of t~e 1!!1~osophy. Agam, Kautily~'s Arthasastra in any other language. It has, however, been frequently used in the ancient
were supposed k> follow du . th G µd rules_ of conduct which the people Hindu religious and legal texts to connote different meanings according to the
'golden age' in t}w arteie t I ;;.ng tt·e upta period which is reckoned as the context. Therefore, the English writers i~ their attempt to give a precise
jurists and legal lum&tan:s n ian isto~. Among the twentieh century Indian acceptable definition, have stated that "dharma includes religious, moral,
Justice Chagla, Dr P V G ~aydbe me1J,_tioned the names of Dr. B. -R. Ambedkar social and legal duties and can only be defined by its contents". According to
and V. R. Krishn~ 'r ~ . a~en r~gadKar, Justice P. N. Bhagwati, D. N. Desai Hindu scriptur~s, dharma, stands for "religious rights, fixed principles of rules
K. Tripathi and Dy r, NUan1 Pdalk1walla and others. The contribution of Dr p of conduct and the whole body cf religious duties".
r. pen ra Baxi · k. · ·
. . . m ma mg 1aw an instrument of
transformation of
been striving to
present time.
gi:=~~;c;::;t:1c
·
r;sbce also needs to be mentioned who have
c on approach to the Indian jurisprudence in the
The Yajnawalkya Smriti contains a detailed Vyavaharic interpretation
of the ancient Indian legal theory which was founded on dharma in its
substantive and procedural forms. The Dharmashastic legal . philosophy was
The ancient lhdian legal think . based on ethical and religious precepts which every person including the ruler
system which was based on so er~ e~pounded their own indigenous legal -(king) had to follow. There was nothing like Austinian concept of 'command' of
and excelled in fn . und principles of reasoning and human welfare
the sovereign and people obeyed and followed the law as their moral and legal
Commenting on an~ie:~~~~sp~ct~ frodm other legal systems of the world. duty. Those who disobeyed the law were punished. The vedantic legal order
ian Junspru ence, Mayne observed!. .
Hind. I . . primarily emphasised on establishment of a socio-legal order free from

this ~ay i~ce,

juris i:d:w has the oldest J:>edigree of any known system of
and even now it shows no signs of decrepiture. At
governs races of men, extending from Kashm· t
conflicts, exploitap.on, miseries and disparities. 2

Jaimini's View
Capecomol'in h . . 1r o
to it". . , w, o agree m nothing else except their submission In ancient legal system of India, dharma and law were synonymous terms
because the latter essentially constituted a part of the former. According to
Appreciating the merits f th · .
Francis MacNaughton wrote thatth e a_nc1ent ~nd1an legal philosophy Sir Jaimini, dharma is founded on revelation which is conducive to the welfare of
own jurisprudence . . . e ment _of havmg be~n the founders of their the society. He says dharma is that which is ordained by the Vedas. 3
of their legal thea~aiu;;~lbe d:~ed ~o the ancient Indian jurists.2 The influence According to Manusmriti, conduct is the basis of dharma and "it is not what you
because of their rc\tt:na/ty sudsh1sts m. t~e modern Indian legal philosophy think but what you do constitutes your dharma". Non-violence is the essence of
• • • I an umamsbc approach to law. dharma. 4
Indian JUnsprudence is as old a h · •
other than the Cr"'a~ t h" If L s umamty itself; there is no founder of it In ordinary sense dharma is taken to be synonymous with religion though
• v or imse aw prope h b in fact it has a much wider import. Religion. and law are only two facets of
ancient Sanatan dhttrm 3 db . r as een a part and parcel of
religions and there",_ a ·t~ een nurtured by it since ages. It is the soul of all dharma. Thus the term dharma also embodies the present notion of law. In the
dh arma, there' was «>re, 1 ts ever present and
h d. h
- d.
never en mg. Law bem.g a part of widest sense, dharma suggests all pervading rules or order that uphold the
both constituted a o I I~ armony and discord between law and dharma and
Q" universe. This inexorable and unalterable order makes the universe what it is.
~mg e integrated whole.
Thus dharma is much more broader than the law and is used in various other
1. Mayne : Hindu Lo. ·d
2. Sen, P. N. : Gen~... w a~ 1:1sage Preface (1st ed.) p . 1. . senses such as conduct, right, duty and functions of the legal order.
3. 'Sanat , bl Principles oJHmdu Jurisprudence p. 374.
an means ~ne that i .
Dhanr,a that was. is andw~t1~~ttW1 ~~:~;~lasting. Thus Sanatana Dharma means an ancient
1. Dr. Ghosh, R. 8. : l.Aw of Mortgages (4th ed.) p. 35.
2. Setalvad M.C. : Law and Culture, (1965) p. 21.
3. Jaimini : Purva Mimansa.
[134] 4. Manu Smriti, Chapt. I, Verse 108.
 136 JURISPRUDENCE AND LEGAL THEORY
The fundamental principle underlying dharma is uniformity or regularity
of order which is universall~ accepted. It m~y, ,therefore, include statutory
law, law of nature, law of society, law of creation, law of gravitation etc.
_ From the P?int of view of a common man, t~e term dharma may be said to
mclud: three thmgs, namely, (1) religion (2) duty and (3) inseparable quality
of a thmg or o.rder.
In th; fi~s~ s~nse, dharma has been treated as 'religion'. In strict sense of
the word, rehg1~n,,may be sai~ to be obedience to the law of God. According to
1':1~a~a Gandhi, God and His la v,: M\.: synonymous t('rrns and, therefore, God
s ignifies an ~chan~ing living law. No one has really found him but Prophets
have by their devotion and sadhna given to mankind a faint glimpse of the
eternal Jaw" .1
. In the second sense, dharma stan~s for duty or Kartavya. For instance,
ra7dh~rma connot~s the duty of 'Ru~er, grahastha dharma signifies the duty of
a family man, narz dharma implies duties of women and so on. Similarly, there
may_ ~e the duty of a doctor, Judge, lawyer, priest, teacher, leader,
adm1mstrator etc. The ancient Hindu dharma dealt with the duty of the King
or ruler in great detail. He was supposed to protect his subjects from internal
and external dangers, but if he behaved otherwise and failed to protect them
from the wicked, he was deemed to be unworthy of the position he occupied and
could be dethroned.
. In the third sense, dharma connotes esse.ntial characteristic features of a
t~1m? or object. For i_nstance, the ess~ntial characteristic (dharma) of Agni, i.e.,
fire 1s to burn a~ythmg and everything without discrimination. Similarly, the
dharnza of water 1s to quench fire. This is unalterable and immutable.
~ccording to Dr. Kane, the concept of dharnza passed through several
tra~s1hons ov~r t~e years and in the modern context it signifies privileges,
du t_ies and obhgahons of a man, his standard of conduct as a member of the
society. 2
. M~nu, the great Hindu law commentator observed, "dharma is that
wh1c~ 1s followed b~ those learned in the Vedas and what is approved by
conscience of the virtuous men who are free from hatred and inordinate
3 propagated by great saints is not in conflict with Vedas. The Vedas are eternal,
af!e~tion". Thus, he pointed out that dharma is a noble feeling born from
withm the heart, which has approval of virtuous people. But stressed that
mere noble feeling is meaningless unless it is translated into action. In other
words, to ~onstitute dharma, noble motive and action both are necessary, Manu
has. ~e~~nbed fourfold indices of dharma, i.e., (i) Sruti, that is Vedas (ii)
?nmtt (m) Sadachar and (iv) that which is pleasing to one's conscience.4 Thus
m Manu's conception of dharma, we find a compl~te blending of religion;
l. Quoted from 'Sana~an Dlzarma & Law' by Justice K. B. Panda (1977) p. 23.
2. Dr. Kane P. V. : History of Dharmasastras, Vol. I, (2nd ed.) p. 3-4.
3. Ma11u Samhita, Ch. II, Verse I.
4. ~: P=j"fu ~= ~ ,:f ~ :
~ ~ " ' 11Js: m~ ("1~1
INDIAN LEGAL THEORY 137
morality and law. It may be stated that out of these four features, it is only the
sadachar conduct of a virtuous man aspect of dharma that corresponds to law,
which in modern context means a code of conduct which regulates human·
behaviour and mutual relations of individuals inter-se as also with the State.
In the modem sense, sadachar, i.e., moral law is broad-based, liberal, flexible,
humane and just and it is to be adjudged by the law in force.
The Vedic period which was later· succeeded by Dharmasastras has been
described as a Golden age of ancient Hindu legal philosophy which comprised .
a unique blend of religion, morality and custom's in the form of law with greater
thrust on duties of king and his praja (subjects), Besides the legal rules, smritis
also provided some non-legal rules which a person was supposed to follow in
his day-to-day life. They were placed in three broad categories, namely
(i) Achara, (ii) Vyavahara, and (iii) Prayashchitas.
(i) Achara ( 3ll'"'trn:) were regulations relating to performance of religious
rites, rituals and ceremonies and comprised Karmakand.
(ii) Vyavahara ( ~ ) rules dealt with dealings between men living in
society mainly relating to protection of life, property and peace in the society.
(iii) Prayashchita ( i ; i ~ ) dealt with atonement for various sins,.
immoral or anti-social acts committed by men. It was an expression of penance
expressing repentance for one's wrongful deeds.1
Source of Dharma
It has been unanimously accepted that the source of dharma is Vedas. The
various tenets of dharma are to be found in the Vedas, i.e., Srutis. The ancient
sages regard Vedas as the prime source of all human knowledge and as a
narration of Sruti, i.e., what was heard from the ancient Rishis. They are of
divine revelation. Vedas are the prime source of all human knowledge. The
great law-giver Manu stated, "for those who are anxious to learn about law,
Sruti is the greatest authority". He pointed out that not only law and usage but
all knowledge is enshrined in Vedas. According to him, the knowledge of
military leadership, political science, penology, statesmanship and every art
of influencing and subjugating people spring from the Vedas. 2 The dharma
omniscient and infallible and they are limitless. 3 Vedas being the supreme
authority, there is no conflict in them and if at all there is any apparent
conflict,· it is due to the misunderstanding of the interpreter and his lack of
knowledge, but not in the divine text.
The great sages who expounded the Vedic texts were mainly four, namely,
Manu, Yagnavalkya, Brihaspati and Narada. Yagnavalkya also mentions the
1. Dutta M.N. : The Dharmasastra-Hindu Religious Codes, I and II, Vol. I (1978)
Introduction.
2. ~ ~ ~ "i:11
~~ ~ 1 Ch. VII, Verses 100.
3. ~~:
138 JURISPRUDENCE AND LEGAL THEORY
\ battle of Kurukshetra. On one side the dharma of Kshattriya to fight as a
names of Vishu, Angirasa, Parasara, Vyas, Sanl_<ha, Gautama, Vasistha etc. as
the propounders of Dharmashastras. They only iilterpreted Vedas but did not
create it. Their works are technically known as S11!-riti a·nd, therefore, they are
called Smritikars. After Smritis, came the Purahas which are eighteen in
number. 1 They broadly contain details about the creation and dynasties of God~,
sages and the Kings and the description and characteristics of Yugas.
It may be reiterated that Smritis and Purans were of a much later origin
and therefore, they lacked unanimity. The ancient law-givers were aware of
the fact that differences of opinion may lead to confusion therefore, they laid
down clear rules of priority in case of a conflict between them, namely, 'where
there is a conflict between the Sruti, Smriti ·and Puranas, the text of Sruti must
prevail, but in case of a conflict between the latter two, the Smriti must
prevail'. 2
Thus it is evident that authorship· of Smriti and Purana is traced and
known but not that of Srutis, i.e., the Vedas which are supposed to have
originated from Chaturmukha Brahma. Thus Srutis have a divine origin.
Sruti and Smriti forms the greatest treasure house of ancient Hindu law
which are considered to be immemorial(~); timeless ( ~ ) and eternal
( ~ ) . Vedas belonged to class of Sn.di (i.e., what is heard or revealed) and
are supposed to be of a divine origin. The nature of Vedanta law was of a
theological character which has universal applicability. Later, it was
succeeded by Dharma-Shastras. During this period, the traditional law was
crystalised and concretised in the form of Smritis (i.e. what is retold,
remembered and written). Dharmashastra mainly comprised rules of religion
and morality blended together in the form of law. It took a synthesised form in
which four sources of sacred law i.e., customs, religion, moral and law were
blended together to provide a code of conduct for the king as well as his subjects
(people). Later, Smritis were interpreted by the commentators who expressed
their own opinion about a particular law. As between the rules general and
special, the latter were to prevail. In case of contradiction between Shruti and
Smriti, the former was to prevail and followed, but where there was no
contradiction, the text of Smriti was to be acted upon. 3
The Concept of Law
As already stated, sadachar aspect of dharma was law according to Manu
and other commentators of ancient Hindu scriptures. The word dharma was
synonymous to duty. But we experience in life that situations do arise when
there is conflict of duty. There is reference in the Mahabharat 4 that Arjuna,
the third Pandav had to face such a situation of confrontation of duty in the
1. The eighteen Purans arc---.m. "tlGl! ~ . Wei, 'IJTlle«l, ~ . ~ -
l<fi'~. crrrR, ~ . lf<'P-'.I, lW1f ol!fl v¢s :(U1111
2. Vyas Samhita, Chapt. I, Verse IV.
3. Some of the great exponents of ancient Hindu Law as per Yajnawalkya were Manu, Atri,
Vishnu, Harita, Ushana, Angira, Yama, Katyayana. Vrihaspati, Parashana, Vyas Sankara,
Daksha, Ganlhama, Vashishtha, etc.
4. Mahabharn.t the Great Epic is held to be the fifth Veda.
INDIAN LEGAL THEORY 139
warrior and on the other was the bloody fight ·with his· own agnates and
brothern. He therefore, got puzzled and preferred not to fight. Then Lord
Krishna exhorted Atjun for his relentless action and inspired him to fight for
the sake of his dharma, i.e., duty. He advised Arjun to shed aside his remorse
and destroy the evil forces as a true warrior .1 Gita preaches us that God is
attained by doing one's duty, i.e., Karma. A man devoid of a sense of dharma or
duty is a veritable beast because it is the rationality in man which
distinguishes him from other animals. In all other matters such as food, sleep;
fear, sex etc. he is identical with a beast excepting that he has been endowed
with mental power to think and distinguish between good and bad.
Importance of Custom
The commentators of Smritis made it clear that on matters not covered by
Smritis, customs would supplement the law. Thus customs formed a part of the
law. This contention finds support in the Privy Council decision in Collector of
Madura v. Mooto Ramalinga 2 wherein it was held that 'under the
Hindu system of law, clear proof of usage will outweigh the written text of the
law'.
Like the modern jurists and legal thinkers, the ancient Indian law-givers
were also faced with the problem of reconciliation between stability and
change since law is flexible and dynamic in nature and it has to keep pace with
the changing patterns of the society. The ancient Hindu law~givers tried to
reconcile stability and change by ascribing the origin of law to God and
recognising sources capable of introducing changes such as the Smritis and
Purans. Thus it may be stated that the ancient legal system was responsive to
changes and it is this flexibility and adaptability of law which enabled it to
survive for ages.
A study of ancient Indian jurisprudence would show that the customary
law was a rule of conduct authoritatively imposed by the divine power _as
proper for man, governing all his activities, public or private and affecting his
spiritual and temporal interests. Preservation of interests was the ultimate end
for the p:reservation of society.
Vedic Conception of Law
According to Vedas, law has a divine origin. Rigveda conceives law not
merely as an ordering of human conduct and adjustment of human relations, but
it is something more, i.e., ordering of things in a fixed and pre-determined
manner.
Manu also says that law is an order of human behaviour which is just and
:wtz!, ~ . ~ . full, ~ . reasonable as it emanates from the God. It consists of innate duties of men
because they are ordained by nature and not external impositions from outside
elements such as the State or the sovereign.
1. Srimad Bhas-vat Gita, Chapter 12.
2. Moore : Indian Appeals, 397.
140 JURISPRUDENCE AND LEGAL 1HEORY
Law as a measure of security.-According\to Upanishadic interpretation
of law the function of law is to ensure social security of men and the existing
social institutions by avoiding conflicts and confrontations between individuals.
The form of law is to be determined by its effectiveness and rationality.1 It is a
device which keeps everyone within his limits iri· his relations with other
members of the society.
This contention about the end and purpose bf law finds support in
Briharanyak Upanishad, ( ii!t? {Olicfi ~ ) which states:
"Law is a Chatra (~) of Chatras, therefore, there is nothing
higher ·than the law. Thenceforth even a. weak man rules a
stronger with the help of the law; as with the help of the
King. This law is what is called the truth ...... truth and law;
both are the same". 2
Greater stress on duty.-The main purpose was to_ensure peace and order in
the society. Greater stress was laid on 'duty' rather than 'right' in the
administration of justice. The conduct according t0 dharma meant perfo~mance
of duty towards others and the society in the interest of the commumty as a
whole. 3
Significantly, even the modern western legal thinkers, like Comp!e,
Duguit and Kelson have accepted the predom ~ance of ~uty as .an essential
1
element of law. To quote Duguit, he observed, the only nght w~ich an_y m~n
can possess is the right to do his duty". Duguit's theory of s~c1al sohdar~ty
suggests that even the soverei~n or t~e ~ta~e. does not stand m ~ny sl:'ec~al
position or privilege and its existence is JUSbfied only so long as it fulfils its
duty. Kelson also suggested that the essence of law is duty a~d th~re is no such
thing as individual right in law. He reiterated that legal nght 1s merely the
expression of duty as viewed by the person entitled to the fulfilment of that
right.
There is no doubt that ancient Indian scriptures, namely, the Srutis and
later the Smritis are replete with duties rather than rights, ~ut this ~eed not
be misunderstood to mean that Hindu society did not recogms~ any nght. For
instance, members of the joint family had a right to hold certam property, so
also the wife had the right over her stridhan property.
The Naykopanisad, ( -il4i:t,l9f-itiG) which is one of th~ ~n~ient H~nd~
scriptures has highlighted the importance _o~ l~w an? called it kmg of kmgs
and that nothing is mightier than law. Similar views were ex_pressed by
Aristotle the great Greek philosopher of his time who said, "law is ~ form of
order and therefore, a good law means a good order". Cicero also pomted out
that "no power should be above law". Thus it would be seen t~at ~uprem~cf of
law has been upheld in India from th~ oldest times because ?f its divme ongm.
1. Radhabinod Paul : The History of Hindu Law (1958) p. 194.
2. Upanishad 1 Chap. 4 Verse 4.
3. Sen P. N. : General Principles of Hindu Jurisprudence p. 375.
INDIAN LEGAL THEORY
141
Religion, Morals and Law Distinguished
The modern law and legal philosophy does not touch the morality or the
religion. But the dharma of the .ancient Indian legal system comprised all the
three, namely, law,. morality and religion within its ambit. This is evinced by
the fact sadachar laid greater stress on morality than the law. The element of
religion was conspicuously present in the dharma because of its emphasis not
only in noble feelings or intentions but in both noble motive and action. Thus
religion as a part of dharma meant by what is approved by conscience of
virtuous men who are free from hatred and worldly temptations.1 Religion
therefore, consisted in both noble motive and action because noble feeling
precedes noble action. In other words, former is the cause and the latter is the
effect. For instance, to help the poor or needy or attending to the sick and
diseased persons are no doubt noble but that should be achieved in a noble way
either by sacrifice of personal comforts or personal mQpey but if .it is done by
robbing others or exploiting others, it would be contrary to dharma.
As regards the place of morals in ancient Indian legal system, Sadachar
aspect of dharma is morality. Unlike the modern law which is confined to
rights., duties and legal obligations without much concern for morals, the
ancient law laid great stress on sadachar, i.e., good conduct or avoidance
improper or undesirable behaviour with fellowmen. The concept of dharma
under ancient Indian legal philosophy was based on sadachar or moral-law
which is broad-based, liberal, humane, just and all-pervasive as it sustains and
.protects the universe while modern law is confined only to the society. To
illustrate, a man is under no duty to help a beggar or the distressed and can
neglect his sick and old parents without the fear of any legal or penal
consequences but sadachar did not allow a person to do so as it amounted to
undesirable conduct which was condemned by dharma. Thus achara, 2 that is
conduct formed the basis of ancient concept- of dharma and it consisted in
practicing truth, non-violence and helping the needy and distressed. In other
words, sadachar enabled a person to distinguish between right and wrong.
The modern law for most of its part emanates from legislative enactments,
that is they are man-made. It is mainly concerned with actions or omissions but
does not bother itself about the motives. But religious part of the dha rma
always looked to the motive behind the act.}!1ms religion was meant to protect
the universe including human society and dharma stood for "religious rights,
fixed principl~s of rules of conduct and whole body of religious dutiPs". The
form of religion which the ancient scriptures prescribed was altogether
different from what we see or conceive today. Religion, in those days meant
belief in ever-existent God. It did not believe in exhibition of religion and
observance of rituals as we commonly think today. The performance of prayers,
idol-worshiping, fasting, visiting temple or mosque or attending the church,
offering Prasad and Bhog to deity, attending -religious conferences, visit to
1. Manu Samhita, Chapt. II, Verse 1.
2. 3'11~.m:, 'Wil~: ( Manu Smritis Chap. I, Verse 108).

142 JtJRISPRUDENCE AND LEGAL THEORY
\I
1·1gnm· places etc. at@ the outcome of distorti6ns in th.e original concept of
P
dharma which are ·pcuhaps innovated for expressing · ' f a1·thf u ln ess . to
ones
. · and finding ct way· to approach nearer God. The outwardly ceremonies,
re1igion . I . . I ti f t reate
rituals, grandeur and pomp and show are all ater arbcu a ons o men o c
a religious .fervour in the society.
The concept pf dhatma in the ancient India1: legal the~ry was b~sed on the
_ position that man has outer and inner existence. His outer existence was
pre sup d and controlled by legal rules and morals while the inner self was
goveme •· . • I d d ·th' ·t
regulated by the religie,us precepts. In this way, 1harma. m~ u_ e WI m 1 s
totality of rules govemlng the social or,d~r con.tamed with11: 1t, the rules of
. · law and mot~lity. Salvation or moksha was considered to be the
re11g1on,. dh t f th · t
ultimate end of life. The ancient scriptures and armasas ras o e anc1e~
Hindu religion are comprehensive codes to regulate human ~on.duct m
accordance with unalterable scheme of creation and preservation of !he
universe which includes the human society. The two facets of human hfe,
namely, the outer worldly existence and the inne~ ~elf are _inseparable and
governed by the princlples of law, morality and re_hg1~1:· Agau:i, the law has a
crucial role to play in tegulating the conduct of md1v1duals _mter-se and the
society. A man has two sets of duties, _namely, (1) self-rega~dmg, and_ (2) as a
member of the society~ the ultimate obJect bemg the pr?t~chon of society and
maintenance of sqcial order. The secular character of religion was unexphcably
connected with the morality and rules of law. This does not, however, mean
that the ancient law-givers were not aware of the distinction between _law and
rules of morality. Tho Smritikars clearly divided rules into three mam parts,
namely, (1) Achara (rules of daily routine), (2) Vyavhar~ (rules, decrees or
commands of the kin.g) and (3) Prayaschitta (Penance). It 1s only the Vya~h~ra
aspect of dharma whi~h contains the legal rules of human conduct emphas1smg
on duty aspect of the law.
The law of the dharmashastras clo5ely resembled the natural law and
the law of reason. Th~re was no conflict between spiritual and temporal powers.
Kautilya's. Art~ashastra, like the dharamashastra also m~ntions th~t
king was . a fountain of justice and he was regarded by t~e sub1ects ~s their
protector like th~ir mother.I The happiness of the king lay_ m the h~pp~ne_s s of
his subjects and in their welfare. The ancient dha~ma did not d1scnmma~e
between persons on \he basis of his religious following, c~ste or creed. It_said
that dharma is all. J}'ervading as expressed in the ~ax1m_ satyam, shzvam,
sundaram, namely, it~embraces all truth, and all beauties of hfe.
Law and EquaU\:y.-The principle of equal~ty wer~ well e1:shrine~ _in the
ancient law of Indi~. . But the concept of equality envisaged m_ Smnti~ and
Dharmashastra did ~ot mean mathematical equality. Instead, 1t referred to
equality in the matter of protection and security to eve:~ _p erson . The
functioning of the so,iciety was modelled on the principle o~ d1v1s1on of labou:
and each person con~tituted an inseparable part of the society. Thus emerged
1. ~ ~ . m o t ~ v - i n :
INDIAN LEGAL THEORY 143
the Varna or caste system which consisted of four categories. The Varna
Vyavastha (cf11f ~ ) as it is misunderstood and exploited today for personal
gain, was not meant to divide the society into different classes but it was
devised on the sound economic principle of division of labour for the well being
of the society as a whole. TI1Us preservation of unity and social order was the
sole objective of the Varna Vyavastha of ancient India.
From what has been discussed above, it would be evident that the legal
theory of ancient India as conceived by the scriptures and Dharmashastra was
a unique combination of religion, law and morality. It further speaks of the
concern of the ancient law-givers for social solidarity and sanctity of law. It
may therefore, be concluded that our ancient law-givers possessed exceptional
analytical skill and logical accuracy in defining legal conceptions. Their
dynamism and concern for social security and sanctity of law reveals their
capacity to perceive things in their proper perspective. 1 Even the Western
legal thinkers, notably Sir William Jones, German Scholar Fredrick Schlegel.,
French philosopher Victor Cousin and Professor Max Muller have highly
commended the ancient Indian Vedanta philosophy. Fredrick Schlegel has
observed, "It cannot be denied that the Indian philosophers p.::>ssessed a
knowledge of the true God, all their writings are replete with sentiments and
expressions, noble, clear and deeply conceived and expressed as in any human
language in which men have spoken of their God".
However, it would not be correct to conclude that the ancient legal theory
was wholly spiritual and religion oriented. TI1e famous English writers on
Hindu law like Pascal and Johan Bunyan have described that the Vedanta
philosophy was affirmative and action oriented and a Karmabhumi for
individuals. It laid great stress on human progress through the Vedic hymns of
Charaiveti which requiring people to serve the motherland (country) in the
best possible way. The Manusmriti propagated the theory of trusteeship which
meant commanded that a person should only retain that much of wealth as was
needed for himself and his family and rest of it should be held by him as a
trustee of society. A man should continue to seek prosperity and progress
throughout his life and the material resources and privileges should be shared
by him with the fellow-members of the society. The ancient Indian law has
never.been averse to material prosperity, progress and possession of wealth, it
only wanted that these should be equitably shares and intelligibly use for the
betterment of the society. 2
Transitional period of law and legal system
However, with the passage of time and changes in the socio-political
conditions of India due to the influence of the Moghul and later British rule,
"the ancient Hindu law which at one time governed the entire gamut of human
activity-civil, criminal and miscellaneous, was modified, supplemented and
1. Sen P. N. : General Principles of Hindu Jurisprudence, p . 376.
2. Yajurveda, verse 7.8. The law of primogennture (that is eldest male m e mber) being the karta
or Head of the family, inheritance, succession etc. kept members of family tied together.

144 JURISPRUDENCE AND LEGAL THEORY
\ concepts, all that is reasonable need not be necessarily moral Fo
finally superseded by various legislative enactinents" 1 During the Mughal rule
in India, Islam was used to function as a political entity rather than a legal
system. Thus the Hindu law which was at one time revealed to have a divine
origin being a part of dharma, has now become "man-made" law and therefore
has lost its divinity which the religion still retains, though the distortions
therein have reduced it to a mere farce and tool for hoodwinking and playing
with the sentiments of the masses by those who are at the helm of the religious
affairs. It is an irony of fate that dharma, which is as old as humanity itself
and of which law proper has been only a part and parcel, has lost all its
credence and glory and it is n~ being increasingly . used as a means to
accomplish the selfish ends of those who are in power rather than as an
instrument to secure even-handed justice to the people of India.
Modern Indian Law distinguished from the ancient Dharmashastric
conception of law ·
It must, however, be stated that the modern law does not touch the moral
or religious aspect of ancient dharma. Law in the modern context is confined to
rights, legal obligations, duties etc. It is in this sense that law is different from
dharma or sadachar i.e., virtuous conduct of a righteous man because the former
sustains in particular society but the latter is all pervasive and applies to the
entire universe. Further, law confines itself to only such obligations as are
created by the sovereign or the State but dharma has a much wider connotation ·
and includes religious, moral, social and legal activities of mankind. Again,
every improper · or undesirable conduct is opposed to sadachara and hence
opposed to dharma also, but not by modern law unless it is specifically a
prohibited conduct.
It may be pointed out that sadachar, though cannot be equated with law
yet resembles the modern law. The concept of virtuous conduct is uniformly
applicable throughout, but it is not so with the modern law. What is lawful at
a place may not be necessarily so at another because law being a dynamic
concept, varies according to place and time d~pending on the values, customs,
physical conditions etc.
The modern concept of Indian law still presupposes that a good law
always corresponds to demands of justice or morality or men's notion of "what
ought to be". But it is based on the premises that there is a fundamental
distinction between law and morals. This view finds support in the fact that
laws are not always enacted because they are mostly desirable but because it is
found necessary or expedient to enact them. Relativity of morals is yet another
reason for keeping law and moral distinct. Morality being a relative concept,
standards of morality and justice shift according to time, place and beliefs of
the society. Again, morality of one section of the community may not extend its
protection to other section of the same community.
The modern conception of Indian law is based on the notion of
reasonableness. Though morality and reasonableness appear to be identical,
1. Justice Panda K. B. : Sanata·n Dharam (1977), p. 103.
INDIAN LEGAL THEORY 145
1 ·
g:,!,"•r~~ Bo~'.s;zse, 1?e law in question, namely, the Special ~.:':r':,';'bi~cfs
1
. um_ es xemphons) Act, 1981 was challenged on the round f 0
1mmorahty as 1t · extended immunity to tax-evaders and hoarder~ of bl k
~~~Ili~f~~~
rth bl k
!~P=~
.
c~ ~
by m;jorty of 4 : _(Gupta J. dissenting) uph:1d
n. e groun '? reasonab1hty because it was enacted to
unea ~c m~ney which was an obstinate economic problem' and other
:!f~r!~ hav_mEafa~!ed.dThthe Apex <:ourt, took a positivist view and observed
a .aw 15 w an , erefore, immunity to black-money hoarders b itself
could. no_t be ground of constitutional challenges under Art 14 ~f the·
C onstitution. · ·
The VDIS (Voluntary Disclosure ·of Income Scheme) introduced by the
Government of India in 1992 granting certain immunities and concessions to
evaders of Income-tax .is yet another instance of law's validity being dependent
on reasonapleness rather than on morality.
, · The study of the evolution of ancient Indian law and jurisprudential
philosophy would reveal that the conception of justice in the form of Dharma
governed the communal life with a view to safeguarding the common interests
of the people. ~s rightly pointed out by S. Varadhachariar, there appears to
~ave ~een a l~gical order m the historical evolution of the ancient legal system
m w~1ch ~es_ire ~or justice and respect for law were greatly influenced by the
pu~hc op11:110n. Kohler also believed that the essential element of law in
anc_1ent India was no! that it should lead to objectively right results, but that
society should recognise the domain of the law in administration of justice.3
As rightly pointed out by Max Muller the life of people under the ancie;,.t
Indian law was motivated by Dharma, Artha, Karma and Moksha.4 Of these
Dharma and Moksha which referred to the spiritual and moral values of lif~
gradually lost their hold due to impact of social transition of the Indian society
due to the Mughal and the subsequent British rule. The Artha, i.e., the wealth
and Karm~_(actio~), ~~wever, still hol~ the field which is clearly reflected in
the peoples materialistic approac~ to hfe in the modern time. .
With the increasing role o{ State, it is now requires to adopt measures
policies and action oriented scheme for the welfare of the people. The British
ruler~ adopted a n~w model of overnance in India assigning distinctive
9
functions to the Legislature, Executive and the Judiciary for the administration
of the country, to sui~ their own selfish interest for retaining colonial rule
rather than for the welfare of the Indian masses. The functioning of these three
organs of the government overlapped on many counts.
000
1. AIR 1981 SC 138.
2. S. Varadachariar: The Hindu Judicial System, p. 162
3. Joseph Kohler: Survey of the Indian Law of Procedure, Primitive & Ancient Legal Institutions (PLI),
p.576.
4. ~me of the_ great exponents_ of ancient Hindu !aw as per Yajnavalkya were Manu, Atri,
Vishnu, Hanta, Ushana, Ang1ra, Yama, Katayeyona, Vrihaspati, Parashara, Vyas, Sanskara,
Daksha, Gautama, Vashishtha etc.

8 guide legal development and administration while others charactertise it as
NATURAL LAW THEORY
· The natural law phiiosophy occupies an important place in the realm of
politics, law, religion and ethics from the earliest times. It has played the role
of harmonising, synthesising and promoting peace and justice in different
periods and protected public against injustice, tyranny and misrule.
Commending the function of natural law in liberating· people from politico-
legal disorder and tracing its evolution, Blackstone observed:
"the natural law being co-existent with mankind and
emanating from God Himself, is superior to all other laws. It is
binding over all the globe in all.countries and at all the times
and no man-made law will be valid if it is contrary to the law
ofnature". 1
The natural law theory reflects a perpetual quest for absolute justice. It
should not be rniscorlceived that natural law has a mere theoretical
significance. Its practical value is a historical fact as it generated a wave of
liberalism and individual freedom and inspired people to revolt against
totalitarian rule in France and Germany. The international law owes its origin,
development and validity to the natural law philosophy. The law of nations
derives its force and authority from the natural law.
Dr. Friedmann has commented that the history of natural law is a tale of
the search of mankind for absolute justice and its failure. Therefore, with the
changes in social and political conditions, the notions about natural law have
also been changing. Natural law has acted as a catalyst for bringing about
transformation of the old prevailing legal system. It brought about a change in
the old Roman law of Justinian period. The greatest contribution of natural law
. theory to the legal system is its ideology of a universal order governing all men
and the inalienable rights of individuals. 2
Legal thinkers have expressed divergent views regarding the extent of
natural law. The natural law philosophy dominated in Greece during 5th B.C.
when it was believed that it is something external to man. Sophists called it as
an order of things which embodies reason. Socrates, Plato and Aristotle also
accepted that postulates of reason have a universal force and men are endowed
with reason irrespective of race or nationality. Cicero supported natural law
since it is the creation of reason of the intelligent man who stands highest in
creation by virtue of his faculty of reasoning. He believed in universal
applicability of natural law because it is base~ on the general morality of the
human society~
The concept of natural law has been differently interpreted by writers at
different times. Some of them contend that natural law consists of ideals which
1. Blackstone: Commentaries, Introduction, p. 39.
2. Friedmann : Legal Theory, pp. 43-45.
(146)
NATURAL LAW THEORY 147
qu~st for perfect la~ dedu~ible by rea~dn. The supporters of natural law theory
bel!eve th~t !~ere 1s a ba~1c ele~ent m law which prevents a total separation
?f !aw as it is fro~ the law as zt ought to be'. 'Values.' un~oubtedly play an
indispensable role m the development of law-.1 _
. In the anci~nt societies, natural law was believed to have a divine origin.
Dunng t~e me~1eval period it had a religious and super-natural basis but in
m~dern times 1t has a strong political and legal ~oaring. It has b~en rightly
pointed out by Lord Lloyd that natural law has been devised as a mere law of
self-preservation or a l~w restraining people to a certain behaviour.2 It has
found e:"pression ~ moden:1 legal sy~tems in the form of 'socio-economic justice.
The en_tir~ human rights P1:rilosophy IS an outcome of the growing importance of
the prmc!ples of natur~l Justice. The natural law theory acts as a catalyst to
boost social transformation thus saving the society from stagnation.
Natural Law-Its Meaning and Definition
It must be stated there is no unanimity -about the definition and exact
~eaning of nah:1-ral law ~d the term 'natural law theory' has been interpreted
differently at different hmes depending on the needs of the developing legal
thought_.. But the greatest attribute of the na!_ural law theory is its
adaptabihty to meet new.challenges of,the transient society.3
The exponents of natural law philosophy conceive that it is a law which
is inherent in the nature of man and is independent of convention, legislation or
any other institutional devices.
Dias and Hughes describe natural law as a law which derives its
validity_ from its own inherent values, differentiated by_ its living and organic
properties, from the law promulgated in advance by the State or its agencies.
. According to Cohen, natural law is not ·a body of actual enacted or
mterpr:te~ law enforced ~y courts, it is in fact a way of looking at things and a
~umamshc approach of Judges and jurists. 4 It embodies within it, a host of
Ide~ls such as morality, justice, reason, good conduct, freedom, equality, liberty,
ethics and so on.
According to the Italian jurist Del Vecchio, "natural law is the criterion
which permits us to evaluate positive law and to measure its intrinsic justice".
In fact the term 'natural law' is analogous to a mix-up of high values such as
moral~ty, justice, eth:i.cs, right reason, equality, freedom, liberty, social justice
etc. It IS rather a way of looking at th~gs in the quest of ensuring justice.5 ·
From the jurisprudential point of view, natural law means those rules and
principles which are supposed to have origirtated from some supreme source
1. Hall J : Foundations of Jurisprudence; Chapter 2.
2. Lloyd : Introduction to Jurisprudence, pp. 79-81.
3. Dias R.W M. : Jurisprudence, p. 65.
4. Cohen & Cohen : Readings in Jurisprudence and Legal Philosophy, (1951), p. 660.
5. Bodenheimer Edgar: Jurisprudence (1963), p. 430.

148 JURISPRUDENCE AND LEGAL THEORY
. \
other than any political or worldly autho~ty. Some thinkers believe that
these rules have a divine origin, some find their source in nature while others
hold that they are the product of reason. Even\the modem sociological jurists
and realists have sought recourse to natural law_ to support their sociological
ideology and the concept of law as a means to reconcile the conflicting interests
of individuals in the society.
Commenting on the nature of natural law, Blackstone1 observed as
follows:-
"The natural law being co-existent with mankind anq emanating from
God himself, is superior to all other laws. It is binding over all the
countries at all times and no man-made law will be valid if it is contrary to
the law of nature."
Natural law h~s always been u~ed against tyrannical and authoritarian
rule of Monarchs. ·
Main Characteristics of Natural Law
The phrase 'natural law', has a flexible meaning. It has been interpreted
to mean different things in course of its .evolutionary history. However, it has
generally been considered as an ideal source of law with invariant contents. The
chief characteristic features of natural law may be brie_fly stated as follows : -
1. It is basically a priori method different from empirical. method, the
former accepts things or conclusions in relation to a subject as they are without
any need or enquiry or observation while empirical or a posteriori approach
tries to find out the causes and reasons in relation to the subject-matter.
2. It symbolises physical law of nature based on moral ideals which has
universal applicability at all places and times.
3. It has often been used either to defend a change or to maintain status quo .
according to needs and requirement of the time. For example, Locke used natural
law as an instrument of change but Hobbes used it to maintain status. quo in the
society.
4. The development of human rights jurisprudence and basic rights of men
essentially owes its origin to the natural law philosophy of the post-
nineteenth century.
5. It embodies within it the values of reason, justice, morality and ethics,
which provide a common base of legal philosophy and phiiosophical or
ethical jurisprudence.
6. The concept of 'rule of law' in England and India and 'due process' in
USA are essentially based on natural law philosophy.
Natural Law as distinguished from other Laws
The natural law by its very nature and content differs from the positive
law in the sense that the former denies the possibility of any rigid separation
1. B]ackstone : Commentaries, Introduction p. 39.
NATIJRAL LAW THEORY 149
of !is' and 'ought' aspect of law ~nd believes that such a separation is
unnecessarily caus~g confusion in the field of law, while ·the latter draws a
-~_harp d~stinction be~een 'is' and'ought' ·and refuses to accept morality or
Justness as an essential element of law. The supporters of natural law theory
argue that the notions of 'justice', 'right' oi; 'reason' have been drawn from the
nature of man and the law of nature ,and 'therefore, this aspect cannot be
completely eliminated from the purview of law. .
Natural law also differs from other forms of law such as the canon law,
common law, constitutional law, international law etc. in the following
aspects:-
1. Natural- law is eternal and unalterable but the other forms of laws are
subject to periodical changes and alterations. ·
2. Natural law is not made by man, it is only ~iscovered by him whereas
other laws are created, evolved, modified and altered by man.
3. Natural law is not enforced by any external agency but every other form
of law is enforced by State, sovereign or ruler and there .is always a coercive
force behind it. ·
4. Natural law is not promulgated by legislation, it is an outcome of
preachings of philosophers, prophets, saints etc. and thus in a sense, it is a
higher form of .law to which all forms of man-inade laws should pay due
obedience.
5. Unlike other forms of laws, natural law has no formal written Code.
Also there is no precise penalty for its violation nor any specific reward for
abiding by its rules. ·
6. Natural law has an eternal lasting va9-1e which is immutable and it
has been generally accepted that any man-made law which runs contrary to
natural law may succeed for the time-being but it is likely to fail sooner or
later.
7. The central idea behind natural law is that it embodies moral
principles which depend on the nature of the Universe and which can be
discovered by natural reason. But human law can only be said to be law in so far
as it conforms to those principles. ·
Historical Evolution of Natural Law Theory
The content of natural law have varied from time to time according to the
purpose for which it has been used and the function it is required to perform to
suit the needs of the time and circumstances. Therefore, the evolution and
development of natural law theory has been through various stages which may
broadly be studied under the following heads :
1. Ancient Period,
2. Medieval Period,
3. The Period of Renaissance, and
4. Decline of Natural Law Theory due to 19th Century Positivism.
150 JURISPRUDENCE AND LEGAL TIIEORY
. \
1. Ancient.Period \ Aristotle (384-322 B.C.).~Stoics had widened the meaning and scope -of _ -
· Heraclitus (530-470 B.C.).-The concept '-<?f natural law was developed by
Greek philosophers around 4th century B.C. 'fferaclitus was the first Greek
philosopher who pointed at the three main cn~racteristic features of law of
nature, namely, (i) destiny, (ii) order, and (iii) reason. He stated that nature is
not a sc~ttered heap of things but there is a <;1.efinite relation between the
things and a definite order and rhythm of events. According to him, 'reason' is
one of the essential elements of natural law. The instability and frequent
changes in the early small city states of Greece made legal philosophers to
think that law was meant to serve the interests of those who were in power and
the people are incessantly struggling fot a better life. Therefore, there should
be some immutable principle which may have universal application for all the
persons so that peace and tranquillity may prevail. These unstable political
conditions gave birth to the idea of r(atural law which aimed at morality and
righteous conduct in human life.
Socrates (470-399 B.C.).-The name of Socrates occupies a prominent place
amcmg the Stoic philosophers _of the ancient time. He was a great admirer of
truth and moral values. He argued that like natural physical law, there is a
natural moral law. It is because of the 'human insight' that a man has the
capacity to distinguish between good and bad and is able to appreciate the
moral values. Thus according to Socrates, 'virtue is knowledge' and 'whatever
is not virtuous is sin'. To him, justice may be of two kinds, namely, (i) natural
justice; and (ii) legal justice. The rules of natural justice are uniformly
applicable _to all the places but the notion of legal justice may differ from place
to place depending on the existing statutory law and social conditions of the,
place. It is a variable content which changes with time and place. The
reasonability of a particular law is judged by human insight and only those
laws would be deemed proper which are in accordance with the principles of
law of nature and are supported by human reasoning. Thus natural law is a
specie of law which is universal and immutable and uniform.ally applicable tG
all the persons at all the places and times. However, S_o crates did not deny the
authority of the positive law but he pleaded for the necessity of natural law
for security and stability of the community.
Plato (427-347 B.C.).-Socrates' disciple Plato carried further the na_tural
law philosophy through his concept of ideal State which he termed as
Republic. He contended that only intelligent and worthy person should be King.
He _argued that justice Hes in ordaining man's life through reason and wisdom
and motivating him to control his passion and desires. In his Republic, Plato
emphasised the need for perfect division of labour and held, "each ni.an ought
to do his work to which he is called upon by his capacities". In other words, ·
every person should mind his own work and not unnecessarily meddle with
other's work.
According to Plato, "the laws of States are a pale shadow of an absolute
'idea' of perfect laws against which man-made laws may be measured".
NATURAL LAW THEORY - 1-Sl
natural· law which no _longer remained a mere knowledge of universal and
ultimate laws but extended to man's insight which enabled him to apprecic1;te
the absolute eternal moral rules. Aristotle ·came out ~ith a more logical
interpretation of the natural law theory.· According to him, a man is a part of
nature in two ways~ Firstly, he is a creation of God, and secondly, he possesses
insight and reason which enable him to articulate his actions. He defined
natural law as 'reason: unaffected.by '1esires'~ It embodies the basic principles of
justice and morality which have universal validity independent of time and ·
place. 1 But Aristotle did not categorically state that the positive law which is
contrary to principles of natural law, is invalid. To quote his words; he sai~, "so
far its relation with positive law is concerned, natural law is origiriaily
different but once the positive law has been .laid dow_n, it is not different!'.2
Positive law should try to incorporate within it, the fine principles of natural
law but it should be obeyed even if it is devoid of the standard principles of
natural law. He pleaded that the correct approach is to reform or amend the
law and not to break it. Unfortunately, he justified -slavery and argued that
slaves must accept their lot for slavery was a natural institution. This view is,
however, not tenable in the present civilised societies. Aristotle suggested that
the ideals of natural law have emanated from the human conscience and not
from human mind and therefore, they are far more valuable than the positive
law which is an outcome of the human mind. ·
Aristotle viewed 'justice' as a virtue which occurs within the state. He
considered justice as a political virtue. The study of law tends to motivate the
citizens to engage in activities that express virtues and refrain from actions
that express vices. Thus justice demands that a person shoul~-_b e guided by
reason and refrain from indulging in acts which are unjust, unlawful and unfair~
Commenting on the salient features of the Greek natural law philosophy,
Rescoe Pound made the following observations3:
1. It was the result of the views and ideas expressed by thinkers,
philosophers or orators arid not of jurists or lawyers. -
2. It was influenced by politically declared -laws_and tribal customs which
were not differentiated in social order of those times.
3. Enacted laws were in fact the declared customs the validity of which
was not affected by their indifference to natural law principles.
4. There was a growing consciousness that law was a product of wisdom --
and reason which conferred it validity.
Truly speaking, it was Aristotle and not Plato, who relieved natural law
from oracular4 mess and founded it on reason. Later Stoics identified natural
1. Wu C.H. : Cases & Materials on Jurisprudence (1958), p. 311.
2. Quoted by Lloyd Dennis in Introduction to Jurisprudence (1959), p. 64.
3. Roscoe Pound : Jurisprudence (1959), p. 20.
4. According to Greek mythology Oracle was a place where ancient Greeks consilted Gods for
advice and prophecy.

152 JURISPRUDENCE AND LEGAL THEORY
\ . .
law with reason which governs · the entire utµverse and man -b eing a part of
universe, is also governed by reason. _Z eno1 emphasised that man by nature is a
rational creature. Therefore, by following the 'dictates of his reason, he was
regulating his life according to thE! laws of his ~wn nature. Stoic ph.ilosophy
further paved way for the Roman legal philosophers to develop their own
theory of natural law. , .
~atural Law in Roman System.-The _theory expounded by Stoics had cl:
· great influence on the contemporary Roman legal system. The Romans did not
confine their study of natural law theory merely to theoretical discussion but
carried it further to give it a practical shape by transforming their rigid legal
system into cosmopolitan living law. The natural law philosophy found ·an
expression in the Roman legal system through division of Roman law into three.
distinct divisions namely jus civile, jus rntium and jus naturale. · sole promulgator and its enforcing judge. Cicero considered justice through law
The 9vil law called jus civile was applicable only to Roman citizens ·and
the law which governed Roman citizens as well as the foreigners was known as
jus gentium. It consisted of the universal legal principles which conformed to
natural law or law of reason. Later, both these were merged to be known as jus
naturale as Roman citizenship was extended to everyone except a few
categories of persons.2
It was due to the efforts of the Roman Magistrates who were called
praetor perigrinus3 and praetor urbanus,4 and Roman lawyers that natural law
developed systematically on a scientific basis which finally led to the famous
Code of Justinian. Julius Stone has assessed the contribution of Roman jurists ·to
the development of natural law philosophy and observed, uGreek law hardly
survived as a system because it never found its class of legal specialists, while
Roman law developed by the efforts of juris consults . and praetors into a
permanent heritage of western society". Thus natural law remained a
philosopher's speculation with Greeks who were living in unsettled conditions
due to political disorder at that time. The Romans, on the other hand, assigned
natural law a revolutionary role to develop legal system by active
participation of preaetors, lawyers and juris consults andmodifying the old jus
civile to the changing needs of the developing society.5 The Roman lawyers of
the time did not think it necessary to enter into the .controversy of conflict
between 'positive law' and 'natural law', though there was a general feeling
that natural law being based on reason and conscience, was superior to positive
law and, therefore, in case of a conflict between the two, the latter should be
disregarded.
Cicero (106-43 BC).-Marcus Tullius Cicero was a great Roman lawyer,
statesman and orator. His legal philosophy is contained in his famous work De
1. (350-260 B.C).
2. Lord Lloyd : Introduction to Jurisprudence, p. 83.
3. Praetor Perigrinus administered jus gentium that is, law applicable to bdth, Roman citizens as
well as to the foreigners.
4. Praetor Urbanus administered jus civile.
"' ~. _us Stone : The Province and Function of Law (1946), p. 217.
NATURAL LAW TIIEORY .153
Legibus. For him, nature and reason were the dominating forces in the universe.
Explaining his concept of natural law he observed :
"True law is -right reason in agreement with nature, it is. of universal
application, unchanging and everlasting, it summons to duty by its
commands, and averts from wrong doing by its prohibitions. It does not lay
its commands or prohibitions upon good men in vein, though neither have
any effect on the wicked. It is a sin to try to alter this law, nor it is ·
allowable to attempt any part of it, and· is it impossible to abolish it...."
Emphasizing on the universal applicability of law, Cicero observed that_ .
there cannot be different laws for Rome and Athens, nor can it different i,n the
. present time nor in future. It will be· alike for all nations and at all times. He
considers law as something authored by God to rule over mankind and He is the
as necessary pre-condition for the collective well being on human beings. It is no
allowable to alter or abrogate the natural law by the Senate and .even by the
people. 1
Thus Cicero supported natural law because it.was a :creation of 'reason' of
the intelligent man who stands highest in the creation by virtue of his faculty
of reasoning. He believed in the universal applicability of natural law based
on general morality of the human society.
Ulpian was yet another Roman jurist who during the third century A. D.,
defined natural law as one which is not peculiar to human beings but applies
equally to all living creatures. Natural law regards all men as equal therefore,
it was not proper for the Roman civil law to treat slaves as non-perso~s. Thus,-
Ulpian was against the institution of slavery, which according to him, was
contrary law of nature. ·
2. Medieval Period
The period from 12th century _to mid-fourtee~th century is g~nerally
reckoned as the 'medieval age' in the European history. This penod was
dominated by the ecclesiastical doctrines which the Christian Fathers
propagated for establishing the superiority of Church over the State. They
used natural law theory to propagate Christianity and to establish a new_ le?al
order and political ideology based on morals and theology. The C_hnstian
Saints especially Ambrose, St. Augustine and Gregory propagated a view that
Divine law was superior to all other laws. According to t~em, all laws are
either Divine or human. Divine laws are based on nature while human laws on
custom. It is the divine nature of the natural law which makes it binding
overruling all other laws. Saint Augustine pointed out that ~ivine wisdo~ was
revealed in the scriptures. The moral precepts or Holy Scriptures_ were m ~act
the principles of natural law. According to Gierke,_ t~e med1e:val. penod
Christian theology centred around two fundamental pnnc1ples, namely . -
1. Unity derived from God, involving one faith, one church and one
empire; and
I. Quoted in Lloyd's Jurisprudence (1959), p. 65.
 JURISPRUDENCE AND LEc;;AL THEORY - 1
' . . NATURAL LAW 'n mORY 155
. 2. -1n~ supremacy of law both, divine an~ man..;made as a part of ·ty f -
urn.verse. \ _ ' um. o Like his predecessors~ St. Aquinas agreed that natural law emanates from
\ 'reason' and is applied by human beings to govern their affairs and relations.
Until the rise of humanis~ natural law, di~me ·la - He opined that positive law should be accepted only tolfhe extent to which it
bound together, all being imposed from above by G~. w and human law were is compatible with natural law or ext~rnal ,law .1 He .regarded Church as the
. ~e main tenets of the natural law theory ~f them d. 1 . authority to interpret divine law. Thus his approach to natural law was
bnefly be stated as follows :---:- , e ieva penod may empirical because his conclusions were drawn from the study of human nature.
He considered .' reason' as the sole repository of social life of man. St. Aquinas
1. The supporters _of the theory believed that the in~tituti - believed in the supremacy of law because it is a ~eans to attain common good.
prop~rty, state etc; represented the evil desires because th ons of slavery,
He supported property rights and uphe~µ ~_9laj$ition of property by man as he
crea~o~ of nature; nevertheless, they are necessa -for - rev ~y are z:iot_ !he
derives satisfaction from it which is helpful in maintenance of peace and order
the v1c1ous tendencies of men. The existenae of Stai andp _en~g or h~1ting
the development of morals and ethical, values . - soc1~ty IS essential for in the society. He, however, held that use and enjoyment of property should
supported this view. m man. Cicero and Seneca not be confined only to the person acquiring it but it should extend for the
common benefit of all the members of the society. Thus, primacy of natural law
2. 'Law' is the greatest binding fdtce both for those wh
governed. Thus the natural law theory accepted the suprema; !r~::~ and the
was the fundamental starting point of the legal , philosophy of St. Thomas
Acquinas.
. 3. The greatest problem before the medieval le al · According to St. Thomas Acquinas, the natural law was that" part of
philosophers was the correct interpretation of law They b 1? ;~inkers . and eternal law which emanates from man's reasoning. He observed ·that eternal
- of the human activities, namely, . e ieve m two facets law being of a divine-origin is absolutely perfect. The natural law, on the other
hand, is only an imprint of the eternal law and therefore, it cannot be
(i) Worldly and (ii) Godly. They are radicall differ - -
~d there arises no question of conflict or clash bey - ent from one _another absolutely perfect, as it changes with the changing circumstances and needs of
is supreme in the field of worldly t· ·t· twheen the two. State i.e. ruler the society. He asserted that natural law is the foundation of human law, that
. . ac IVI 1es w ereas Pope held is, the positive law and no positive enactment which is counter to natural law
au thor1ty m the realm of Godly activities. supreme
can survive long.2
4. As to the question about the exact source of l I . . Interestingly, Wu Jhom C.J. prefers to explain the inter-relationship
tveloped society, the majority view was that State and :ga autho~1ty _m a
t e people who agreed to subdue themselves to their autho~;.were t e gift of between eternal law, natural and human (positive) law with the roots, trunk
and branches of a tree which yields beautiful flowers and fruits if nourished
Saint Thomas Aquinas (1225-1274) properly. Eternal law is like a root of a tree, natural law as its trunk and
different human laws like its branches. Where the soil and climate are
A . Among the theologicians of the medieval period the name f Th favourable, the trees sends forth its splendid flowers of justice and equity and
qmnas deserves a special mention H . .d , o omas
the natural law theory of his age .. In ehts co.~s1 ered_ to be the_ re~resent~tive of yields the fruits of peace and happiness. Thus, peace is the fruit of justice and
are z:iatural phenomenon. St. Aquinas point;~e:'~t st~~:~:~arusahon an~ State no positive law which is opposed to law of nature can survive long. Therefore,
destiny to a considerable extent but he is subject to certain b c~n. control his own the primacy of natural law has to be recognised as a starting point of positive
impulse of self-preservation reproduction of h. . basic rmpulses such as law. 3
etc. for Improving
. his future' and att . t fIS species. , ringing up c hild ren St. Thomas Aquinas followed Aristotelian concept of justice and held that
,,an ordinance of reason for the comm::rn::d ~a~:r,ech~n. He defined law as "justice is a habit" formed through action and experience. He emphasized on
th~ community and promulgated through reason" y him ~ho_ has the ca~; of distributive concept of justice and held that justice is a virtue which one has in
primary precept of law is that good shoufd bed -1:ie mamtained that, the · relationship with others. Justice lies in the perpetual and constant desire to
avoided". Man's activities are directed to one ~n pu:sued and an evil be render to each one his right. In other words, the concept of justice carries with
perfection. He must do things to achieve e~eure his su1:7Ival, con~inuity ~nd it, respect for the rights of others. It is a complete virtue that produces good of
these ends shall be morally wrong. m and doing anything against the individual as well as the society. The political object of justice is to keep
Law !~t~mas Aquinas gave a fourfold classification of laws namely (1)
o or external law· (2) Natural law h. h . , ,
individuals together according to Greek traditions. Justice implies equality.
The distributive element in Aquina's perception of justice is to be found in his
"reason"; (3) Divine law or th~ law of Seri tu _w Ic Is revealed t~rough
now called 'Positive Law., P res, (4 ) Human laws which we 1. Friedmann : Legal Theory (5th ed.), p. 108.
2. Lloyd Dennis : Jurisprudence, p. 72.
3. Wu. Johrn C.J.: Cases and materials on Jurisprudence (1964) p. 506.
156 JURISPRUOENCE AND LEGAL lHEORY NATURAL LAW THEORY 157

assertion that "justice is to share" our own ~rofit with others in order to
preserve.common equality.
3. The Period of Renaissance I
The period of renaissance irt the history of d.evelopment ·of natural law
may also be called the modern classical era which is marked by rationalism
and emergence of new ideas in different fields of knowledge. General
awakening among the masses coupled with new discoveries of science during the
fourteenth and fifteenth centuries shattered the foundation of established
values. That apart, tremendous growth of trade and commerce in European
countries created new classes in the society which needed greater protection
from the State. The cumulative effect of ~hese developments was that there
was a general wave of nationalism· and a demand for absolute sovereignty of
the State and supremacy of the positive law overthrowing the. dominance of
the Church. New theories supporting / the sovereignty of the State were
propounded by rationalist politico-legal thinkers such as Machiavelli, Jean
Bodin. 1 As a result of these developments, temporal authority of the Church
and the theological natural law received a serious blow and finally it
dwindled giving way to natural rights of man and the State. The natural law
theories propounded by Grotius, Locke and Rousseau revolutionalised the
existing institutions and held that 'social contract' was the basis of the society.
Hobbes used natural law theory to perpetuate reactionary movement and justify
status quo for the preservation of peace and protection of individuals from
perpetual conflict and chaos.
stability of politic~! order and maintenance of international peace which was
the need of the time.
Hu O Grotius is rightly considered as !he_ founde_r of the modem
intemati~nal law as he deduced a riumber of principles whi~h paved way for
further growt;h of international law. He propagated eq~ahty of States and
their freedom to regulate internal as well as external relations.
Grotius firmly believed that man by nature is peace-loving and desires to
live according to dictates of reason. He therefore, t~~ated ':natural lawdas
immutable which cannot be changed by God himself . Gro~ms advocte _a
view that natural law is based on the r.ature of man and his urge to ive m
ful society He considered divine law as the grand mother, natural law
r::c;arent and .positive law as the chi~d.' Thus he placed natural law at a
higher footing as compared with the positive law. .
Thomas Hobbes (1588-1679)
Hobbes' thecry of natural law was based on natulrall ritgh~ ot!fys~~~
d · rt H made use of natura aw o JUS i
~;:~~:t:~~;ii~E:E::; £d~i:!t::::::~t!;J;i~e~lt ;:a:~~~erC:f
natural law.
evolution of the State,- _He had_ himself ~articipat:~ i;:~~~:~.
Thomas Hobbes propounded his theory of social co~tr_act relating to
~:r:=~~:

P::t~rt::ii:
In short, with the renaissance and the rise of humanism the natural law King Charles I and British Parliament an supp~r e_ f the ruler He accepted
became open to rational inquiry free from its former religious trappings. obviously s~p~orted thde a~s~lute d~~;:; give it m~ch credence
the ideal principles un er yu~g n~ r~ f to command obedience
Hugo Grotius (1583-1645) for it lacked sanction which, m his view was essen ia1
Hugo Grotius was a great statesman, philosopher and jurist of his time. from the people. . .
A d. to Hobbes prior to , socia . 1 contract' , man lived m chaotic
He was a Dutch scholar and a staunch supporter of renaissance and reformation.
ccor mg , l'f . the state of nature was "solitary, poor,
He propounded the theory of functional natural law in his Laws of War & condition ~f constant f~,a~e f 1 e : order to secure self-protection and avoid
Peace (1625) and formulated the principles of international law which were nasty, brutish and short . ere -~re, t d into contract and surrendered their
equally applicable to all States both, during war and peace. He referred these misery and pain, ~en voluntari f e:,~; could rotect their lives and property.
principles relating to law of nations as natural law. He departed from St. fre~dom to some mightest a~th:n%stitution of ihe 'ruler' which later assumed
Thomas Aquinas' scholastic concept of natural law and 'reason' and held that This led to the emergence o t e orter of absolute power of the
natural law was not merely based on 'reason' but on 'right reason', i.e., 'self- the form of the State. Thus Hobbes was a supp . who had to be obeyed
supporting reason' of man. As to the question whether the subjects should ruler and subjects had no righhts ~ain~t ~~~=o~~!~~sly church also had no
disobey the ruler who did not act in conformity with the principles of natural however tyrannical or unwort y . e mig . ,
law, Grotius believed that however bad a ruler may be, it is the duty of the power or authority over the sovereign. .
subjects to obey him. Though there is apparent inconsistency in the natural law h t port absolute authority
Obviously, Hobbes used natural la~ t eory o_sup eared in 1651, he
propounded by Grotius because on the one hand, he says that the ruler is bound
by the 'natural law', and, on the other hand, he contends that in no case the of the ruler. In hi~ famous work L~i;::::n::~ho:~fe sovereign. In his
ruler should be disobeyed. But it appears that Grotius's main concern was observed that law is de~endent u~o b t rds and of no strength to secure
o inion, "Governments without swor are u w_o . , . h real law because
1. Machiavelli wrote PRINCE in 1~13 supporting the authority of the State and natural rights
~ a t a 11" .1 He therefore , reiterated that c1V1l law is t e
a pman
of man. Jean Bodin's La Republique published in 1577 also supported absolute authority of the
State over the temporal Church. 1. Quoted .from Friedmann's Legal Theory (5th ed.), P· lZl.
 158 JURISPRUDENCE AND LEGAL THEORY
it is co~manded and e~forced by the sovere\gn. Taking inspiration from
I enjoyable, where was the necessity to instal a government or State? Besides,
H~~bes_ t~eory, later writers and legal thinkers propounded their theories of
uhhtan~msm, ~aterialism arid absolutism. A~stin's imperative theory
of law_ is essentially an outcome of Hobbes' doctrine of absolutism of the
sovereign. · Jean Jecques Rousseau (1712-1778)
John Locke (1632-1704)
. As stated. earlier, the new poli~ical theories which emerged as a result of
:enaissance, favour_ed _a~solute sovereignty of the State-undermining the
~m~ortance of_ the mdivtdual. Therefore, in order to support the rights of
individual ag_amst the absolute power of the sovereign, a new interpretation of
the natural la'": and social contrac~ theories b~came more or less necessary. John
Locke had witnessed the Glorious Revolution of 1688 and the wave of
indiv~dua!ism i_n ~ngland which greatly; influenced the political and legal
!heones m Bntam at that time. He therefore, came out with a new
interpretation of the social contract rejecting Hobbes' earlier concept of state of
nature. He stated that the life in state of nature was not as miserable and
brutish as depicted by Hobbes, instead it was reasonably good and enjoyable
except_that the prope~ was in~ec~re. In order to ensure proper protection of
~roperty, man entered into the social contract' surrendering only a part of his
nghts, ~d not all the rights as contemplated by Hobbesian theory. Thus the
n~tural rights of man such as right to life, liberty and property remained with
him and only the right to maintain order and to enforce the law of nature was
surrendered by him. The purpose of the State and law was to uphold and
'protect the na_tural rig~ts'. of men. So long as the State fulfils this purpose, its
l~ws were vahd and bmdmg but when it ceases to do so, the people have a
nght t~ revolt against the government and overthrow it. I Thus Locke
~mphasised on the protection of three main rights, namely, right to life,
liberty and property which were inalienable and necessary for the well being
of the individual.
It may be stated that Locke's idea of social contract was founded on new
secular approach to natural law whereby the power of tli.e government was
conceded on trust by the people to the rulers and any infringement of the conduct
~y the ru_ler~ w~~ treated as a breach of the people's fundamental natural
nghts which Justified revolt against the govemmeut.
Locke pleaded for a constitutionally limited government. The nineteenth
century doctrine of laissez faire was the result of individu3.l's freedom in
mat!~rs relating to economic activities which found support in Locke's theory.
~Jn~i~e Hob_bes who supported State authority. Locke pleaded for the
individual liberty.
. . The nature of state as c_ontem~lat~d by Locke has been criticised by some
Jurists on the ground that if the hfe m the state of nature was happ·y and
1. Locke's fam~us w~rk Tw~ Treatises of Gov_ern~nt which appeared in 1776 became a model
for th~ ~mencan Bill of Rights, 1776 and msp1red American revolutionaries to fight against
the Bnhsh, consequently leading to the American Deel - ... tion of Independence in 1776.
NATIJRAL LAW TiiEORY 159
Locke's theory gives an impression as if there might have been a social contract
actually, which in fact is merely a conceptual assumption.
The changed circumstances and political upheavals of the eighteenth
century brought about a radical transformation in the politico-legal ideology of
the thinkers of that time. Rousseau gave a new interpretation to 'social
contract' and 'natural law' to suit the new situations. He pointed out that
'social contract' is not a historical fact as contemplated by Hobbes and Locke,
but it is merely a hypothetical conception. Prior ·to the so called 'social
contract', the life was happy and there was equality among men. People united
to preserve their rights of freedom and equality and for this purpose they
surrendered their rights not to a single individual, i.e., sovereign, but to the
community as a whole which Rousseau termed as 'general will'. Therefore,
State and law are the product of General Will1 of the people and not of 'reason'
as proclaimed by the seventeenth century legal philosophers. The essence of
Rousseau's theory of General Will was that while the individual part;:; with
his natural · rights, in return he gets civil liberties such as freedom of speech
equality, assembly etc. The State and the laws made by it are subject to 'general
will' and if the government c:Uld laws do not conform to 'general will' they
would be discarded. It would thus be seen that while Locke laid emphasis on
the individual, Rousseau favoured people's sovereignty. His natural law
theory is confined to the freedom and liberty of the individual. For him, State,
law, sovereignty, general will etc. are interchangeable terms. His theory is
considered to be the forerunner of the modem jurisprudential thought and legal
theory. 2 It generated a wave-·of nationalism in Europe and United States which
eventually led to French Revolution against State tyranny and American War
of Independence.
Immanuel Kant (1724-1804)
The natural law philosophy and doctrine of social contract was
further supported by Kant and Fichte in eighteenth century. They emphasised
that the basis of social contract was 're'l.son' and it was not a historical
fact. Kant drew a distinction between natural rights and the acquired rights
and recognised only the former which were necessary for the freedom of
individual. He favoured separation of powers and pointed out that function of
the State should be to protect the law. Kant's philosophy destroyed the
foundation of natural law theories towards the end of 18th century which
suffered a death blow at the hands of Bentham in the early nineteenth century
because of his theory of hedonistic individualism. Kant propounded his famous
theory of Categorical Imperative in his classic work entitled Critique of Pure
Reason.
1. Rousseau's General Will was called Vo ionte generate.
2. Seal C. W. : Foundations of Modern Jurisprudence (1958), p. 72.

160 JURISPRUDENCE AND LEGAL THEORY
Kant's theory of Categorical Imperative \vas derived from Rousseau's
theory of General will. It embodies two principl~s : -
1. The categorical imperative expects a man tp actin such a way that he is
guided by dictates of his own conscience. Thus it is nothing more than a human
right of self-determination.
2. The second prindple expounded by Kant was the doctrine of'autonomy
of the will' which means an action emariati,ng from reason but it does not mean
the freedom to do as one pleases. - _,____._
In essence, Kant held that "an action is right only if it co-exists with each
and every man's free will according to the universal law". This he called as
"the principle of Innate Right". The sole function of the State according to· him,
is to ensure observance of law.
Distinguishing law from morality,, Kant replaced the rational foundation
by a metaphysical natural law based on' the obligatory force of the legal order.
He argued that law needed no foundation as it stands upon its own basis as a
system of precepts imposed and enforced by the sovereign. Kant believed that
"law is the last result of human wisdom acting upon human experience for the
benefit of the public." Therefore, he regarded positive law as the product of
human wisdom. 1
4. Decline of Natural Law Theory due to 19th Century Positivism
The natural law theory suffered a set back in the wake of nineteenth
century developments and pragmatic approach to law by the positivists. The
industrial revolution and scientific discoveries had created an environment
which was not conducive to natural law philosophy. The doctrine of laissez
faire which favoured minimum interference of the State in the economic and
political activities of individuals was weakening the power and authority of
the sovereign which could be restored only by a stable deterministic legal
theory instead of fluid and reflex theories of natural law .2 The propounders of
analytical positivism, notably Bentham and Austin rejected natural law on the
ground that it was ambiguous and misleading. Bentham called it a "simple non-
sense" since absolute equality and absolute liberty were repugnant to the
existence of the State. The doctrines propagated by Austin and Bentham
completely divorced morality from law. The historical researches concluded
that social contract was a myth. All these developments shattered the very
foundation of the natural law theory in nineteenth Century.
Positivist's Hostility Towards Natural Law
The overall supremacy of natural law had been dispelled by
Montesquieu's empirical theory that laws are creations of climatic, social,
topography, environment, customs, commerce etc. He denounced the natural law
holding that it was vague, confusing and contrary to empirical and observable
realities. 3
1. Kant : The Metaphysical Elements of Justice, (1965), pp. 43-44.
2. Dhyani S.N.: Fundamentals of Jurisprudence (2004, Reprint 2012) p. 95.
3. Montesqucu's Esprit des /ois.
NATURAL LAW THEORY 161
David Hume (1711-1776) rejected the theory of natural law alleging that
it was vague, obscure and contrary to empirical approach to law. Thus, he
destroyed the theoretical basis of natural law by hi~ analytical posit~v~sm.
The evil effects of individualism gave way to the new ideology of collectivism.
He argued that values and notion of justice are inherent in- ~ature. He
disfavoured discretion in judicial adjudication as it would result m threat to
stability and certainty in administration of _justice. He therefore, favour~d
inflexibility in application of rules of law which may be changed wh~n social
conditions so demand.
The theory propounded by the great French philosopher August Compte
further struck a severe blow to the dwindling natural law theory. He denounced
natural law theory as false, non-scientific and based on super natural beliefs.
The emerging trend of recognising the importance of historical school
which considered law as a product of people's conscience, bro~ght furt~er
decline of natural law. The roots of natural law lay in precepts hke ~oral~ty,
justice, reason etc. which the positivists denounced as b~~~ unreal, unhistorical
and non-scientific. The dominance of analytical pos1hv1sm had comp!etely
divested law from morality and justice, thus destroying the very foundation of
the natural law theory.
Toe main propounders of the positivism, namely, Jeremy Bentham, ~am~s
Mills and John Austin condemned natural law in strongest wor~s calhng it
absurd, confusing and 'non-sense in silts'. Austin called it 'ambiguous and
misleading' and mere expression of 'positive morality' .1
In Germany, Darwin's Origin of Species (1860) and_ Herbert ~pencer's
Social Statics shattered the foundation of natural law as it wa~ r~ahsed that
the 19th century complex problems needed a pr_actical _and reahshc approach
which the natural law theories could not provide as 1t was based 0 ~ sheer
idealism and morality which did not suit the needs of contemporary society.
Twentieth Century Revival of Natural law _
However, the nineteenth century legal theories which over-emphasise?
positivism failed to satisfy the aspirations of the people because _of their
refusal to accept morality and 'reason' as element~ ~flaw. It wa~ re~~ised that
exaggerated importance to historical approach givmg undue si~ific~nce to
cultural and social characters of legal system had given rise to fas~ism m Italy
and nazisin in Germany. The impact of materialism on the society and the
changed socio-political conditions compelled the _twentieth century lega!
thinkers to look for some value-oriented ideology which could prevent genera
moral degradation of the people. The World War I further shattered the
western society and there was a search for a value-conscious le?al_ system: ~ll
these factors cumulatively led to revival of natural law theory m its modified
form different from the earlier one. The new approach was obviou~ly concerned
with the practical problems of the society and not with abstract ideals._ As Dr.
Allen rightly pointed out, "the new natural law is value loaded, value-
1. Cohen & Cohen: Jurisprudence, pp. 403-405.
 162 fURISPRUDENCE AND LEGAL THEORY
orie~ted and value conscious and is relativistic\and not absolute, changing and
v~mg and not permanent and everlasting in character. It represents a revolt
against the deten;ninism of historical school on the one hand and artificial
finality of the analytical school on . the other hai)d".1 The main exponents of
the new revived natural ·1aw were Rudolf Stammler. John Rawls, Kohler and
others.
Rudolf Stammler (1856-1938)
Stammler was a Professor of Roman law in various universities of
Germany. He succeeded Kohler as Professor of Law in the University of Berlin.
~e_defin~? law ~s, "s~ecies of will, oth~rs-regarding, self-authoritative and
inviolable . For him, a Just law was the highest expression of man's social life
and aims at pre~e1:ation of freedom of individuals. According to him, the two
fundamental prm~ip~es necessary for a just law were: (1) principle of respect,
a~d. (2)_ t~e prmc1ple of community participation. With a view to
d1stmgu1shmg the new revived natural law from the old one he called the
I I
former ,~s natu~al l~w With va~able content'. Ac~ording to him, law of nature
mea~s Just law which harmonises the purposes m the society. The purpose of
law 1s not to protect the will of one but to unify the purposes of all.2
. Stammler believed that it is impossible to frame legal principles of
universal or eternal validity. It is not the principles of the law of nature but
the na~re of law which is constant. Society as a continuing entity, pre-supposes
the exi~tence of la~, . Therefore, "law is the law of nature with a variable
conte~t • Ev~ryone 1s bound to respect the rights or claims of others and
contribute his_ s~are to the life of the community. He believed that law is
~ecessary a priori, b~cause it is inevitably implied in the idea of cooperation. A
Just law seeks to harmonise individual interests with that of society.3 A just
law seeks to preserve the freedom of individual with the equal freedom of
other individuals.
Stammler did not deny the validity of laws which fail to conform to ·the
requirement of justice because 'justice' according to him, is a relative concept.
John Rawls (192h2002 !
John Rawls made sL,nificant contribution to the r e ·. i ·,.;~ i ,.\~ n ~:· , . :., .•.-.· in
the twen~eth ce~tury, He propounded two basic principles o f justice, ;-i,: rn ely,
(1) equal~t~ of right to securing generalised wants including basic liberties,
opport~m_hes, P~~~t and minimum means of subsistence; and (2) social and
economic mequahhes should be arranged so as to ensure maximum benefit to the
community as a wholt,
According to Jo_h n Rawls, a well ordered society is one which is effectively
re?11lated by a pubh~ perception of justice and fairness . He views justice and
fairness not as a mere moral doctrine but a political conception which applies to
1. Allen C. K.: Law in the Making (1964), p. 22.
2. Lloyd Dennis: Intro~uction to Jurisprudence (1959), p. 87.
3. Stammler: Theory of}i1stice (Translated by Husik) p. 55.
NATURAL LAW THEORY 163
all political .and social institutions of the society. Rawls postulates three
levels of justice.
1. local justice, which includes principl.es applicable directly to all
institutions and associations;
2. Domestic justice applies to family;
3. Global justice is applicable at international lev:el.
These are, however, subject to reasonable .restrictions to maintain ntle of
law.
Rawls' theories of equality and justice have been widely applied to
justify various forms of affirmative action, such as preferential treatment of
minorities in America and equitable allocation of resources. Thus, Rawls
emphasized that social and economic inequalities are to be arranged so that
they are reasonably to everyone's advantage ·and command respect for rights
and claims of others. In order to ensure equality of opportunity the initial social
and cultural handicaps of an individual have to be taken into consideration
with a view to evolve a just and equitable society. The primary goal, according
to Rawlsian theory is to negate the social and cultural disadvantages that a
person is subjected to and suffers by virtue of being born into a particular social
stratum and provide all with equal opportunities so that a person's social
standing is not a hinderance in achieving the highest goal.
It may be stated that the right to preferential treatment through
reservation policy has to be seen as a group right to certain actions of community
who have been victims of caste discrimination for centuries.
Rawlsian theory of equality and justice centres round two fundamental
principles, namely.-
(1) Each person is to have an equal right to the most extensive basic liberty
compatible with a similar liberty for others; and
(2) Social and economic inequalities are to be arranged so that they are
reasonably exp~cted to be to everyone's advantage, and attached to
positions and offices open to all.
Applying the Rawlsian theory to Indian society, it is well known that
certain castes and communities remained marginalised due to rigid social
structures and educational backwardness. After the Indian Independence, the
framers of the Constitution of India incorporated provisions in the Constitution
permitting preferential treatment through reservation in favour of those who
are socially and educationally in a disadvantageous position due to
discrimina tion. 1
Rawls' idea of equality of opportunity takes into account the initial social
and cultural handicaps of an individual. He pointed out that in a formal
system of equality, those with substantial social and educational resources will
reap the benefit of being placed in a better position while those with meagre
1. Arts. 15 (3) and 16 (4) of the Constitution of India.

164 JURISPRUDENCE AND LEGAL THEORY
. \
initial resources will continue to receive only-. meagre returns. Therefore, it is
ne~es~ary to recognize that initial distribution of resources is based on equitable
pr~c1ple so as to provide an "equal start" for ev~ryone in the society and social
sta~~mg does not remain a hinderance in reaching the highest goal and
position. 1
. ~awls contention ~ith reference to ind~vidual is that 'reason' yields
pr~c1p!es of natural ~uhes an~ fa~rne~s. Natural duty includes to uphold just
ms~t:utions and help m pro1!1-oting Justice, to render mutual aid and respect, not
to InJure or ca1:1se _ha~m to mn~cen~ persons ·etc: The fairness principle, on the
other hand, gi:es rise to ob~i?ahons which implies that every individual
shoul~ play his part as specified by the rules of law so long as he accepts
benefit thereof. Rawls justifies civil disobedience when substantial injustice
occurs but it should inflict no injury or harm to the innocent. Thus he views 1 Del Vecchio asserted that natural law is the principle of legal evolution
disobedience as 'an appeal to the society's sense of justice and law is the only
institution of social justice.2 ·
I! would thus be seen that the Rowlsian theory of the equality and justice
ta~es mto a~count the realities of social structure and need for fommlating a
urufo~ pohcy w~ere~y th~~~ who have remained backward and neglected due
to socio-economic d1sab1hhes stand at par with those who have better
resources and social status. The justification for reservation policy in India finds
support u:i the Rawlsian theory of justice.
Francois Geny (1861-1944)
Geny was much impressed by the Stammler's natural law with variable
content therefore, he devoted himself to the revived natural law. He was
opl:'osed to the empiricism of the historical and analytical schools. He
believed that law has to be relativistic and not static or immutable like the
nin~t~ent~ centur~ natural law. He underlined the importance of judicial
d~c1~1ons m mouldmg a legal system. Geny developed his natural law theory
w1thm the framework of the positive law.
Geny, as a sociological lawyer regarded the law of nature as the
sociological factor which controls and influences the legislators and the Judges.
The technique of law-making or pronouncing judgments involves the welding of
the following factors to make the resultant rules serve the needs of the
society:-
1. The physical factors for the society's existence and environment;
2. The evolution, history and traditions of the society;
3. Such fundamental principles which promote sanctity of human life
and freedom;
4. The ideals and inspirations of the society.
1. Article 39 (b} and (c).
2. Dias R. M. W. : Jurisprudence (5th Ed, Indian Reprint 1994), p. 484.
NATURAL LAW THEORY 165
Thus Geny attempted to establish universal principles and suggested
application of scientific methods derived from the social science and restated
the natural law theory from a semi-sociological viewpoint.
Joseph Kohler (1839-1919)
As a neo-Hegelian, Kohler defined law as, "the standard of conduct
which in -cqnsequence of the inner impulse that urges upon men towards a
reasonable form of life, emanates from the whole, and is forced upon the
individual". He says that there is no eternal law and the law shapes itself as
the society advances morally and culturally in course of evolution. He tried to
free the nineteenth century natural law from the rigid and a priori approach
and attempted to make it relativistic, adapting itself to the changing norms of
the society.
which guides mankind and law towards greater autonomy of the individual.
Clarence Morris (1893-1974)
Morris supported the natural law theory by holding that justice is
realised only through good and reasonable laws and any law which lacks just
quality is bound to wither away sooner or later. He used the term 'law' in a
broader sense to mean more than statutes or ordinances and also included
decisions and judgments of Courts, customs, practices etc. within it. Justification
of law lies in its being just, reasonable and in conformity with culture. By
realising justice through law-making the legislators serve the public by
advancing its 'genuine aspirations'. Any law without public support is bound to
fail. Briefly speaking, Prof. Morris's thesis centres round the proposition that
law should be justified morally, socially and technically. He stressed that law
to be valid, must be just but does not spell out whether a law can also be unjust
and what will be the fate of such an unjust law.
Gustray Radbruch (1878-1949) was initially a positivist anc;l treated "law
as law" (Gasetz als Gesetz). But the mass-massacre during the\Nazi Regime
turned him a moralist and he discarded separation of morals t\rom law. He
upheld the right of the citizens to disobey those positive laws' which were
contrary to ultimate rules of justice.
John Finnis
Another twentieth century natural law jurist John Finnis, interpreted
natural law as a set of principles of practical reasonableness in ordering human
society. He emphasised on seven values, namely, (1) life, (2) knowledge, that is
perfect truth over false, (3) performance, (4) appreciation for beau~y,_ (5)
practical reasonableness in shaping ones own character; and (6) rehg1ous
freedom. The function of law according to Finnis is to promote these values and
ensure justice and order in the society.
According to John Finnis, natural law consists of two sets of principles, the
first consisting of certain basic values that are good for human being and the
166 JURISPRUDENCE AND LEGAL THEORY
second consists of certain requirements of pra~tical reasonableness. The human
mind is capable of appreciating the basic values artd methods of achieving good
life. He considered rights and obligations as necessary components of common
good as they are limited by each other. · duties and_forbearances which he called 'negative duties'.
The moral authority of law depends upon its ability to secure justice. Law
derives its force from practical reasonableness and therefore, sanctions and
punishments are necessary elements of law. Finnis emphasised that common
good of the community can be attained by minimisation of arbitrariness and
maintenance of re~iprocity among the subjects of law, both amongst themselves
and in their relation with the lawful authorities. 1
Jerome Hall (1901-1987)
Professor Hall insisted on unifying moral, social and formal considerations
and including moral values in definitio:p. of positive law. He may therefore, be
called as the supporter of natural law philosophy. He sought to combine
positivist, naturalist and sociological study, namely, rules (laws) ; values clnd
social conduct to form what he termed as 'integrative jurisprudence'.2 Thus, he
focused on 'law as in action' based on value considerations to provide validity
to law. He recognised the value of customary law, which according to him
represents the experience of setting problems in just and rational manner. In his
opini<:>n law consists of six features, namely, (1) ethical validity, (2) functional,
(3) regularity, (4) effectiveness, (5) public interest and (6) inexorability, that is
supremacy. He, however, distinguished positive law from morality and other
norms but insisted that morality must be included in the definition of the law as
it provides validity to law.
Lon Luvois Fuller (1902-1978)
Professor Fuller3 is also considered as one of the leading supporters of the
modem natural law philosophy. He emphasised on the role of 'reason' in legal
learning and believed that law and morality are necessarily co-related. He
said that good order is law which corresponds to justice or morality. Thus he
denied any rigid separation between "is" and "ought" aspect of law. He brought
out an excellent exposition of legal positivism and natural law which according
to him, were two divergent legal philosophies competing at that time. Fuller
pointed out that the essence of legal positivism is sharp distinction between
law 'as it is' and 'as it ought to be' whereas natural law theory denies this
rigid separation of is and ought which has been a cause of great confusion in the
existing legal system.
Lon Fuller analysed the concept of morality and its relation with law in
great detail. He distinguishes 'morality as it is' from 'morality as it ought to
1. Finnis : Natural Law and Natural Rights pp 276-277.
2. From Legal Theory to Integrative Jurisprudence (1964) 33 U Cin LR 153. See also Hall :
Foundations of Jurisprudnece, pp 137-138.
3. He was Professor of General Jurisprudence in Harvard Law School (USA) from 1947 till his
death in 1978. His main works are "The Law in Quest of Itself' (1940) and "The Morality of
Law" (1964).
NATIJRAL LAW THEORY 167
be' and calls the former as 'morality ·of duty' and the latter as 'morality of
aspiration'. He further sub-divides moral· duties into affirmative actions or
According to him, morality of duty includes basic requirements of social
living whereas morality of aspiration m_eans good_ l~f~ of excel!ence, e.g.,
forbearing from indulging into extra-marital sex. achv1he~. ~orahty of duty
can be generally enforced by law but not the morality of aspiration.
Lon Fuller believes that law is a purposive system, the purpose being 'to
subject human conduct to the control and guidance of legal rules'. He thinks that
every worka]?le legal system must comply with eight requirements in order to
make the law really effective. These requirements are as follows:-
1. there should be definite rules,
2. these rules must be well publicised,
3. there should be no abuse of retrospective legislation,
4. the rules must be easily understandable,
5. the rules must be practicable and must not require a person to do
something which is beyond his power or capacity,
6. the rule~ must not be contradictory or inconsistent with any other
existing law,
7. the rules should not be subjected to frequent changes, and
8. there must be congruence between the rules promulgated and their
actual administration.
Thus Fuller emphatically stated that fulfilment of all these requirements
is necessary for establishing rule of law in the. society. He calls these
requirements as 'inner morality of law', which represents the pr<:'cedural asp~ct
of the modern natural law theory. For him, the above reqmrements, with
exceptions, are indispensable if a legal system is to regu.~ate legal beha~iour.
He asserted that any "law" which derogates from the internal morality of
law' would not merit to be termed as "iaw" and .a Judge would be free to
disregard it.
Professor H.L.A. Hart has criticised Fuller's theory of natural law for it
confuses 'morality' with 'efficiency'. Unlike Fuller, he does not advocate any
minimum universal rules but considers 'human conditions' necessary for an
orderly society.
Whether International law is really 'Law' or not ?
Austin refused to accept international law as 'law properly so called'
because subjects of international are primarily States and dispari~y in strength
between them is much more than individuals in society. Besides, rul~s of
international law do not have binding effect on nations. Further, there is no
single criterion of identifica~on of international law and one has to resort to
168 JURISPRUDENCE AND LEGALTHEORY
\ States, limit their activities just as any municipal law (State law) limits and
several sources such as treaties, custom, judicial decisions precedents, writings
of jurists etc. to identify this law. The pl'.edictability of decisions in
international tribunals is far less than the municip~l Courts or tribunals because
the former involve political considerations arid national interests. More
importantly, the question of obedience to international law because of the lack
of binding force renders its acceptance as· 'law proper' questionable. It is simply
based on consent of nations which if withdr~wn, the' obligation of nation to obey
it, ceases. The main reason why States obey the rules of international law is
fear of war, reprisal, retaliation,. pacific blockade etc. There is no effective
machinery to enforce sanction on the states which refuse to obey or flout the law
of nations. There is also no sovereign p9wer over and above the disputant
States.
Sir T.E. Holland subscribes to the view expressed by Austin about
international law. According to himj "such rules are voluntary though
habitually observed by every State in its dealings with the rest, and therefore,
they can be called only by courtesy." He observes that international law differs
from ordinary law in being unsupported by the authority of a State and differs
from ordinary morality in being rule for State and not for individuals.
According to Holland, the law of nations is but private law 'writ large'.
He calls international law as a vanishing point of jurisprudence because it lacks
any arbiter of disputed questions save public opinion, beyond and above the
disputant parties themselves.
The naturalists, however, treat international law as law proper because it
is enforced partly by conviction that it is good and partly by those subtle
influences which make it difficult or body of men to act in defiance of strongly
held views of those with whom they associate and interact. According to
naturalists, compulsion or force alone is not the sanction behind law. It is
enforced by the consideration of justice as much as force. The element of fear is
also not altogether absent, as States know that any violation of international
law would be detrimental for them. As Brierly rightly pointed out, "it is not
the existence of police force alone that makes a system of-law strong and worth
being obeyed but it is the overall consideration of well-being of the State and
its subjects that the law is obeyed.
Jarome Hall also supports Brierly and treats international law as proper
like any other law. He opines that international law is habitually treated and
enforced as law and like positive law, it is derived from customs, precedents
which constitute its sources. The observance of rules of international law by
States is compulsory and any deviance or disregard for these rules would be
seriously viewed by the international community and this is perhaps the
greatest force or sanction behind the international law.
It would thus be seen that though international law is not as imperative
and explicit as any other positive law, it is applied by the International Court
of Justice and international customs, treaties and arbitration agreements have
led to development of well settled principles which, in normal intercourse of
NATURAL LAW THEORY 169
regulates the activities of its citizens.
Oppenheim has supported the view expressed by Brierly and defines law
as "a body of rules for human conduct within a community which, by common
consent of this community, shall be enforced by external power (force) :" This
definition of law postulates three conditions for the existence of law, namely,
(1) a community, (2) body of rules for human conduct therein, and (3) common
consent of that community for the enforcement of those rules by external power.
All these elements are present in international law or law of nations. Family of
nations is regarded as international community, which has developed its rules
of conduct for member States based partly on custom and partly on treaties or
international agreements.1 The enforcement of those rules is sanctioned by
consent of the international community. The Security Council has been
empowered to take action as may be necessary for maintenance or restoration of
international peace and security.2 Thus, the response of modem States to law of
nations refutes the contention that international law is a vanishing point of
jurisprudence and accepts this law as law in proper sense of the term.
Natural Law and Feminist Jurisprudence
The supporters of feminist jurisprudence have asserted that there is a
distinctive masculine outlook on law which reveals in legalisms,
technicalities, rules, strict construction of law. The masculine outlook attaches
more importance to law by rules in deciding cases whereas the feminine outlook
prefers to base judgment on the totality of the circumstances of a case,
unhampered by rules that require a 'blinkered vision', feminist approach to
jurisprudence is thus critical of abstraction, which it regards as a distinctive
masculine method.
Feminist legal scholars have contributed to the law and literature, both
by using literary examples in their leg_a.l writings. 3
Pointing out the difference between masculine• and feminist law, Holland
observed that masculine outlook of law is reflected in legal positivism whereas
the feminist approach is embeded in the natural law. The former a~sum~s t~at
legal conceptions are monstrous, in human and based more o~ les~ o-r:- rmagma~on
while the latter believes that law leads to 'popular Justice . Masculme
approach is known for its logic, abstract principles and ~ev~rity_ while feminist
jurisprudence with intuition and softness. Howeve~, ke~pmg m vie': the mai_mer
in which societies are fast moving and progressmg m modem time a mixed
system may perhaps most suit the ends of law and justice. The purely ~eminist
approach, would imply that women came to play a larger role m legal
profession and judiciary. It would lead to fewer laws an~ m_ore standards, less
talk about logic and less maintainability of laws deterrnmahon.
1. Examples are Hague Convention Relating to Land (1899) and (1987); Charter of_DN, 1945_,
2. International Convention on Suppression of Terrorism, New York (2005) Security Councils
concern to prevent violence in Iraq, Islamabad, Iran, Syria, Queba etc. (2008-10).
3. Eamples of Feminist approach in literary writings are Portia's appe~ling to skylock for mercy
in Merchant of Veriee; Isabel appealing to Angelo's sense of mercy m Measure for Measure.
 170 JURISPRUDENCE AND LEGAL THEORY
\ ;
As to the adventitious connection betwee-.,,,_ gender on the one hand and
styles in law and injustice on the other the well known writer· Ms. Carol
Gilligan writes the instinct of "ethic of rights" is distinctively ·masculine
whereas "ethic of care" is distinctively feminine. Citing example of
enforcement rules of games which boys and girls play, she says, "boys are quick
to 'adjudicate' alleged violations and condemn the violators while girls being
more empathetic than boys, tend to stop playing when an. infraction is charged,
for the fear that an attempt to determine the right and wrong of the charge
would result in hurting the feelings ........ Boys judge to infractions according to
hard and fast rules whereas girls tend to evaluate it in full human context,
taking care that relationships are not disrupted." These differences are due to
biological differences or upbringing which have their impact on human
behaviour. Applying this analogy, the decisions of a woman Judge is more
likely_ to be_ Sober unlike any other contemporary masculine judge. This
distinction between the two approaches would be more conspicuous in the
~pplication of principles of 'reasonable man', strict liability, foreseability etc.
m law of torts. This variation is because of the fact that women are less
aggressive than men, they are more devoted and caring as compared to men. I
However, some schol~us including Holland,2 expressed disagreement with
this distinction on the ground that it is a mere generalisation based on sexual
attributes of men and women.3
Critical Appraisal of Natural Law Theory
A brief survey of the natural law theories would reveal that the concept
has been used to support different ideologies from time to time. It has been used
to support absolutism, individualism and has even been used by revolutionists
to overthrow the government. The contribution of natural law philosophy to
the development of law and legal system is by no means less important. The
natural law principles of justice, morality and conscience have been embodied in
various legal systems. Natural law being regulated by law of nature is
inev~table and obligatory whereas man-made positive laws are arbitrary and
contingent. Natural law is not variable since it emanates from 'human
reasoning', which is known for its uniformity and general acceptance. Natural
law also helped in denouncing the divine authority of the Church. It generated
a favourable climate for reformation, renaissance and provided a sound
foundation for fundamental human rights.
The part played by the natural law in development of modem law can
hardly be exaggerated. Legal history testifies that it was natural law which
directly or indirectly provided a model for the first man-made law.
Appreciating the contribution of natural law Roscoe Pound said, "the
uncertainty of the higher law is preferable to the arbitrariness and insolence of
nacked force".
1. West : Jurisprudence and Gender, University of Chicago Law Review, 55 (1988).
2. Holland : Elements of Jurisprudence (13th Ed. 2010) p. 406.
3. For further details see last chapter on Recent Trends in Indian Jurisprudence.
NATURAL LAW THEORY 171
Oppenheim also recognised the contribution of the natural law and
observed, ''but for the system of the law of nature_ and doctrines of its prophets
modem constitutional law and the law of nations. would not have been what
they are today".
Despite the merits of natural law philosophy, it has been criticised for its
weaknesses on the following grounds : -
1. The moral proposition, i.e., 'ought to be' may not always necessarily
conform to the needs of the society. For instance, it is natural for men to beget
children, as it is for trees to bear fruit. But the factual position may be different -
since many countries including India, may like to restrict the growth of their
population by resorting to family planning devices. While, on the other hand,
no one would ever like to restrict the growth of fruits on trees. Therefore, giving
birth to children may be a natural phenomenon but it may not always be
considered as obligatory moral duty of men to conform to this conduct.
2. The concept of morality is a varying content changing from place to
place; therefore, it would be futile to think of universal applicability of law.
For example1 one society may adhere to monogamy while another may permit
plurality ot marriages. 1 Again, adultery is an offence in India whereas in
Britain, it is merely a civil wrong.
· 3. The rules of morality embo<;:l.ied in natural law are not amenable to
changes but the legal rules do need a change with the changing needs of the
society.
4. Legal disputes may be settled by law courts but the disputes relating to
morality and law of nature cannot be subjected to judicial scrutiny, and even if
they are challenged in a court of law, the correctness of the verdict may always
be questioned since it is based on subjective discretion of the Judge.
5. Though apparently law and morality may appear to be in conflict with
each other, the fact remains that in order to decide whether a particular law is
'just' or 'unjust', it has to be tested on the basis of the principles of morality.
Despite the above shortcomings, it cannot be denied that natural law has
played a crucial role in shaping the law. Its significance lies in the fact that an
unjust law may not last long and it is bound to lose public support and in absence
of obedience by the people, it is bound to wither away sooner or later.
Place of Natural Law in British, American & Indian Legal Systems
The principles of natural law have been incorporated in most of the legal
system of the world. Notably in England, America and India, the natural law
philosophy occupies a prominent place in the justice delivery system. A brief
account of the natural law as embodied in the legal systems of Britain, America
and India is given below : ·
BRITAIN (U.K.)
In fact natural law never flourished as a theory in Britain, but its
principles have found place in the body of the English law. Many concepts of
I. In India, bigamy is an offence but Muslim law permits a Muslim to have more than one wife.
 172 JURISPRUDENCE AND LEGAL THEORY
the English law such as quasi-contract, the doct'fin~ of unjust enrichment, trust
etc. are founded on 'natural law' principles. Aga\n, the emergence of equity law
· in England and principle of 'equity, justice and tood conscience' has exercised
great influence on the British judicial ·system and ~evelopment of common law
in that country. The doctrine of judicial control \of administrative tribunal,
conflict of laws, recognition of foreign judgments etc. are essentially based 011 .
the principle of natural justice. , Moghul rule in India. The vast majority of Hindu population was left untouched
The operation of rule of law in the ·E nglish legal system is an embodiment
of English ideas of natural rights. The principles of natural justice incorporated
in the British administrative law are essentially based on the ideology of
natural law.
AMERICA (U.S.A.)
The American legal system has also been greatly affected by the natural
law philosophy. In fact the American W~r of Independence was fought under
the umbrella of natural law theory which justified people's revolt against an
irresponsive and irresponsible ruler. The American Bill of Rights which
guarantees cel'.'tain inalienable rights such as right to life, liberty, equality etc.
is essentially an outcome of the acceptance of natural law philosophy in United
States. The U.S. Supreme Court's power of judicial review which reasonably
limits the power of legislation, derives its force from the principles of natural
law. The principles of natural justice are being extensively used by American
Courts in determining the validity of executive actions of the government and
the laws enacted by the legislature. The use of the doctrine of 'due process' in
the interpretation of constitutional validity of the legislation under challenge
is yet another illustration of incorporation of the naturgl law philosophy in
American law.
INDIA
Apart from the fact that modern Indian judicial system having been
founded on the British pattern, the five principles of equity, justice, good
conscience and natural justice occupy an important place in the Indian law. The
higher values of universal validity, righteousness, duty, _service to mankind,
sacrifice, non-violence etc. were already incorporated in the ancient legal
system. For ancient Indian philosophers, natural law (i.e. the dharma) was
neither a cult, nor a creed or an ideology in western sense of the term, but it was
, righteous code of conduct prescribed for living an orderly life in society. The
Vedic concept of Gita has reference to law of nature which when applied to
mortal world, signifies the moral law or the eternal law of right and 'reason'.
The principles of ·natural law embodied in dharma referred to duties of man
towards Gods, sages, men, lower animals and creatures. It has been
characterised 'as a belief in the conservation of moral values'.1
During the medieval and British period in India, natural law found its
expression in the religious preachings of Ramanuja, Sankara, Kabir, Nanak,
Swami Ramkrishna Paramhans, Swami Dayanand, Raja Ram Mohan Roy etc.
1. Gokhale B. G.: lndian_ Thought Through Ages (1961), p . 24.
NATURAL LAW THEORY 173
who reiterated the Vedic philosophy to re-establish the ·age-old Indian values ·
of life. The Bhakti cult in India re-enforced the old Indian values of truth,
righteousness, morality and justice. Mahatma Gandhi laid great emphasis on
truth, non-violence and righteous conduct in life.
The natµral law philosophy suffered a temporary set back during the
by Muslim rule because of the internal dynastic clashes and political
upheavals1 which made things worse. The advent of the British rule in India,
however, brought a sigh of relief against irrational Mohammedan laws. The
British rulers gradually introduced their own laws replacing the Islamic laws.
The personal law of Hindus and Muslims were, however, left untouched as a
matter of political expediency since it was likely to antagonise the sentiments
of the indigenous native population. The British adopted two methods to
remove the defects in the then existing Indian law. In matters not governed by
any law, they applied the doctrine of equity, justice and good conscience in
order to introduce English law in India. Secondly, they started codification of
· laws in order to ensure certainty, uniformity and · rationality of laws. The
Indians were, however, denied their civil liberties and political rights and
their nationalist movement was ruthlessly suppressed in order to retain British
supremacy in India.
Natural Law Principles under the Indian Constitution
As a result of long British colonial rule in India, certain principles of
natural law enshrined in the English law automati.cally found place in the
Indian law which is broadly modelled on the British laws. The principles of
natural justice,2 doctrine against bias, judicial review, reasoned decisions and
many other precepts of administrative law are based on principles of natural
law. The law of trusts, 3 specific relief, 4 doctrine of election, 5 rule against
perpetuity6 etc. have been borrowed from the English doctrine of equity, justice
and good conscience.
It must be stated that the principles of natural law find a prominent place
in the Constitution of India. The provisions relating to Preamble, fundamental
rights (Part III) and directive ·principles of State Policy (Part IV) amply show
that the framers of the Indian Constitution were particularly conscious about
the inclusion of natural rights in the constitutional document. The right to equal
justice and free legal aid (Art. 39A) and workers participation in Management
of Industries (Art. ·43A) have further been inserted in the Constitution by the
Constitution (42nd Amendment) Act, 1976 to ensure adequate protection to poor
and indigent persons.
1. Dhyani S. N.: Fundamentals oflurisprudence-The Indian Approach (1997), p. 87.
2. These principles are contained in the maxim nemo judex in causa sua, i.e., no p~rson shall be a
judge in his own cause and audi alteram par tern which means 'hear the other side'.
3. The Indian Trusts Act, 1872.
4. The Specific Relief Act, 1963.
5. Section 35 of the Transfer of Property Act, 1882.
6. Sec. 14, Ibid.

174 · JURISPRUDENCE AND LEG~L THEORY
. . . \
Article 15(4) which was added by the Q,>nstitution (First Amendment)
Act, 1951 provides fot special provision for adv~cement of Backward. Classes
?Y way of.exception to Arts. 15 (1) & (2) and Art."?9(2). The clause is applicable
111 cases of both socially and educationally back~ard classes. The import of
natural law theory ifi this provision of the Constitution is meant for the
Protection of backward. classes of citizens against di~crimination.
The · constitµffonil protection against double jeopardy and prohibition
against self-incd.m tnation as provided under Arts. 20(2) and 20(3) of the
Constitution resp«tiv@ly embodies the principle of natur_al law theory. Again,
safeguards again.st arbitrary arrest and detention as envisaged by Art. 22 of the
Constitution also COhtain the element' of natural law philosophy by
guaranteeing to 1be person who is arrested under any ordinary law four rights,
na:rnely, (1) the right to be informed 'as soon as may be' the ground of arrest, (2)
t~e right to consult and to be represented' by a lawyer of his own choice, (3) the
right to be produ~ b~fore a Magistrate within 24 hours, and (4) the freedom of
detention beyond Jhe 8Aid period except by an order of the Magistrate.
The provision of Art. 311 of the Constitution which provides adequate ·
Protection to civil ~rV"l"lts against arbitrary dismissal, removal or reduction in
;an~ is also based on. th@ principle of natural justice. Thus in the case of Union of
ndza vs. Tulsiram P1,t1/l the Supreme Court held that the dismissal, removal
or reduction in rank of a government servant under the second proviso of Art.
3
~1(2) without holding inquiry is in public interest, and, therefore, not
violative of Arts. 311(2) and 14 of the Constitution. The second proviso to Art.
3 11
h (2) expressly provides that the audi alteram partem rule of natural justice
s all not apply in tht~e circumstances and the petitioner's case fell in one of
~Uch circumstances. Therefore, it leaves no scope for any kind of opportunity and
ence Art. 14 was not violated.
The basic structure theory propounded by the Supreme Court of India in
!<esczwananda Bharti v. State of Kerala,2 furnishes the best illustration of
JUdiciary's zeal tQ incorporate the principles of patural law in the
constitutional jurisprudence. Adopting the twentieth century revivalist
;Pproach to the n"-tural law philosophy, the Supreme Court ruled that
Undamental rights ~re not ·absolute and immutable but they are relative in
na~re and changeable in order to build a 'just' social order.3 The Supreme Court
~
1
l'Ined the doctrin~ of basic structure in Minerva Mill Ltd. v. Union of India. 4
.e Court held that f:undamental rights enshrined in Part III and the directive
Principles of State :policy contained in Part IV of the Constitution, taken
~ether c_ons_titute_ th-e core of .the Indian Cons~tution ~d _form its cons~ience.
e doctrine has g1v~:n a new shape to the Indian constitutional mechanism by
1. (1985) 3 SCC 398 s,:re also Satyavir Singh v. Union of Iri4ia, AIR 1986 SC 555.
2. AIR 1973 SC 1461!. The basic structure may be said to consist of (1) supremacy of the
Constitution (2) ~mocratic Republican form of Government (3) sec:.ilarism (4) separation of
powers and (5) fed~ral character of the Constitution.
3. Observation of Ma\hew, J. in Keshavanand Bharti's case which is als.o called the Fundamental
Rights case (AIR 19~6 ~ 1461).
4. AIR 1980 SC 1789.
NATURAL LAW THEORY i75
postulating new ideals and values in order to strengthen the cause·of democracy.
It has become a sheet anchor of individual liberty and social justice.1
The principle of natural justice was earlier confined to only judicial and
quasi-judicial enquiries and did not extend to administrative actions. But with
the decision in Maneka Gandhi's case, 2 the scope of natural justice principle
now extends even ~o purely administrative ·actions. The Supreme Court, in this
11
case noted, for the applicability of the doctrine of natural justice, there can be
no distinction between quasi-judicial and an administrative function. The aim
of °f?oth administrative enquiry as well as quasi-judicial enquiry is to arrive at a
just decision and if a rule of natural justice is calculated to secure justice, or to put
it negatively, to prevent miscarriage of justice, it is difficult to see why it
should not be applicable to an administrative function".
The Supreme Court in A. K. Kraipak v. Union of India, 3 observed that the
principle expressed in the maxim nemo debeit_esse judex in propria sua causa
meaning 'no man can be a Judge in his own' is one of the cardinal principle of law
and natural justice. The Court, inter-alia, observed :
"The aims of the rules of natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice-These rules can operate only .
in areas not covered by any law validly made. In other words, they do not
supplant the law of the land but supplement it. The concept of natural
justice has undergone great deal .;:>f change in recent years."
In essence, it may be said that the principles of natural justice have now
become an indispensable part of Indian judicial system and all adjudicative
bodies dealing with administrative law have to abide by the rules of natural
justice.
The setting up of the Administrative Tribunals, family courts, consumer
redressal forums, free legal aid services, Lok Adalats, Human Rights
Commissions, Womens' Commission etc. are directed towards promoting the
cause of social justice and providing speedy relief to aggrieved persons against
injustices. The Supreme Court's contribution to human rights jurisprudence
through judicial activism and public interest litigation4 has revived people's .
faith in justice delivery system. in India. These new developments evince that
the principles of natural law and natural justice which embody higher values
1. Article 39.
2. Maneka Gandhi v. Union of India, AIR 1978 SC 597 (626).
3. AIR 1970 SC 150 (156) .
4. Examples are: S. P. Gupta v. Union of India & others, AIR 1982 SC 149 Uudge's Transfer case);
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 360 (miserable condition of undertrials in
jails); Asiad case, AIR 1982 SC 1483 (discrimination in payment of wages to labourers);
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; Neerja Chaudhary, AIR 1984 SC
1099; Sheela Barse v. State of Maharashtra, AIR 1983 SC 1360 {adequate protection and
security to juvenile offenders); Doon Valley case, AIR 1985 SC 1295 (protection of
environment); M. C. Mehta v. Union of India, (1987) 4 SCC 463 (prevention of water
pollution); Rudulshah v. State of Bihar, AIR 1983 SC 1986; Sabistien Hongery, AIR 1984 S~ 1026;
Bhim Singh v. State of J&K, AIR 1986 SC 494 (compensation for illegal detention) ; Chairman,
Railway Board v. Mrs. Chandrima Das, AIR 2000 SC 988, (the Railway was held vicarious~y
liable to pay compensation to victim of rape co.nmitted on her by the railway employees m
railway premises).
176 JURISPRUDENCE AND LEGAL THEORY
\
of life, liberty, equality and justice have gain~d increasing importance in the
Indian legal system so that a social order with just and human conditions may ·
be accomplished as contemplated by the framers of the Constitution.
. I

The jurisprudence of access to justice is yet another facet of incorporation of

natural law philosophy in the judicial administration. A large number of
victims of crime and indigent litigants were bein~ deprived of their right to
access to law Courts for justice. Expressing concern for the miserable condition of
undertrial who were languishing in jails suffering colossal injustice without
trial because of their poverty and inability to seek bail, Justice P.N. Bhagwati
in his epoch-making judgment in Hussainara Khatoon v. State of Bihar, 1
observed:
"Law has become for them an instrument of injustice and they are
helpless and despairing victims . of legal and judicial system-which
permits incarceration of men and: women for such long periods of time
without trial... we are denyi..."lg human rights for these persons."
In Raghuvir Singh v. State of Bihar, 2 the Apex Court reiterated the need
for speedy trial and investigation, to ·m itigate the hardships of the persons
adversely affected by inordinate delay in trial. The need for fair and speedy PART-II
trial reflected the· constitutional guarantee of speedy trial under Article 21 of
the Constitution.3
In the case of Dharshna Devi v. State of Haryana, 4 Justice Krishna Iyer
STATE & SOVEREIGNTY, LAW
(as he then was) lambasted the State Government of Haryana for dragging the
poor indigent widow upto the Supreme Court ju3t because she was unable to pay AND
Court fee under Motor Vehicle Act, in order to claim compensation for the death
for sole bread-winner husband caused ir. an accici~nt. ADMINISTRATION OF.JUSTICE
Other ar~as which conform to natural law principles are free_legal aid to
poor and indigent persons,5 compensation for violation of right under Article
21, 6 and for victims of crime,7 the twin rules of processual justice, namely, (1) no
one should be judge in his own cause, and (2) hear the other side8 and the right
to information conferred to the citizens under the Right to Information Act,
2005, which is intended to ensure transparency, openness and fairness in the
working of the Government and public functionaries and strengthen the 'access
jurisprudence'.
□□□

1. AIR 1979 SC 1360 (1381).

2. AL~ 1989 SC 149.
3. Ashok Kumar Dixit v. State of U.P., AIR 1987 SC 235.
4. AIR 1979 SC 855.
5. Articles 14, 39-A of the Constitution, Hussainara III & IV, AIR 1979 SC 1369 & 1373.
6. Rudat Shah (AIR 1983 SC 1087); Bhim Singh v. State of J&K, (1985) 4 SCC 677; SAHEL/ v.
Police Commr. Delhi, AIR 1990 SC 513.
7. Neelabati Behra v. State of Orissa, AIR 1993 SC 1960; People 's Union for Democratic Rights v.
Police Commr., Delhi, (1989) 4 sec 730.
8. audi alteram partem ; see also Article 311 (2) of the Constitution. Khemchand v. Union of India,
AIR 1958 SC 300; Manelai Gandhi v. Union of India, AIR 1978 SC 598 etc.
 9
STATE AND SOVEREIGNTY
The origin of the State seems to have been shrouded with mystery. It is
difficult to say whether the State had a singular origin or it evolved as a
continuous procesi;;. The history of human civilization reveals that men as social
·being tended to live in larger groups under a common authority for the purpose
of regulating their interests inter-se as also for the adjustment of relations
between it and similar other groups. The State evolved from a simple to a more
complex form with extension of its activities. Eventually, the strong political
society in turn contributed to the formation of a modern governmental State. The
main factors which contributed to the evolution of the State include sociability
of man, kinship, religion and industry. The war also led to the growth of a
social organisational form of larger group called the State for the sake of
protection and self-preservation of its people.
Definition of State : ·
The expression 'State' is derived from the latin term 'status', which
means 'standing'; i.e., position of a person or a body of persons. It is difficult to
give a precise definition of State because different political thinkers and jurists
have defined it in different ways. Some of the generally accepted definitions of
the State as given by eminent Jurists are as follows :
Woodrow Wilson defined 'State' as a people organised for law within a
definite territory". According to Dallas, "a State is a body of free persons,
united together for the common benefit to enjoy peaceably what is their own,
and to do justice to others".
Holland.-According to Holland a "State is a numerous assemblage of
human beings, generally occupying a certain territory amongst whom the will of
the majority or of an ascertainable class of persons is, by the strength of such
majority or class made to prevail against any of their member who oppose it."
Salmond defines State as "an association of human beings established for
the attainment of certain ends by certain means." 1 The State is a society of men
established for the maintenance of peace and justice within a definite territory
by way of force. It therefore, follows that the central authority of political
society which is called State must be powerful enough to command obedience of
its subjects and must be able to withstand external aggression.
Grotius has defined "State as the complete union of freemen who join
themselves together for the purpose of enjoying law and for the sake of public
welfare."
Mac Iver defines "State as an association which is acting through law as
promulgated by a government, endowed to this end with coercive power,
1. P.J.Fitzgerald : Salmond on Jurisprudence (12th ed.), p.132.
180 JURISPRUDENCE AND LEGAL THEORY
maintains within a co~munity territorially d~marcated the universal external
conditions of social order."
Brierly.-According to Brierly, "a State is ,an institution, that is to say, it
is a system of relations which men establish· among themselves as a means of
securing certain objects, of which the most fundamental is a system of order
within which their activities can be carried on."1
Professor Goodhart defines State in terms of its purpose. He states that
"the purpose of society which we call a State is to maintain peace and order
within a demarcated society. The minimum and essential purpose of the State
is, therefore, to make life possible."
a
_ R. G. Gettell holds that "State is community of persons permanently
occupying a definite territory, legally independent of external control, and
possessing an organised government which creates and administers law over all
persons and groups within its jurisdiction. Abstractly considered, the State is
juridical entity of persons, concretely considered, is the community the territory
it occupies and the governmental organisation through which it wills and
acts."
Oppenheim has observed that "a State proper is in existence when a
people is settled in a country under its own sovereign government."
Gamer defines "State as a community or persons, more or less numerous,
permanently occupying a definite portion of territory, independent or nearly so
of external control, and possessing an organised government to which the great
body of inhabitants render habitual obedience."
It can be inferred from the above definitions that State is an association of
human beings, whose members are considerably united with the appearance of
permanence, for political ends, for the achievement of governmental
institutions. It is an association exclusively meant for political ends. Thus there
must be-(1) people, (2) territory, (3) government, and (4) sovereign for the
existence of a State."
Leon Duguit's conception of State is entirely different from that of
Holland, Gray and Salmond. According to him, State is a body of men residing
upon a determined territory, of which the stronger impose their will on the
weaker, which power is called sovereignty. However, Duguit's definition has
not been accepted by most of the writers because there is no such thing as the
imposition of will by the stronger on the weaker in case of a State.
It must, however, be stated that the modem concept of State has radically
changed as the State now exists for the welfare of its subjects and therefore,
pursues endless welfare activities other than mere administration of justice and
maintenance of law and order or thwart external aggression.
Origin & Evolution of the State
The origin of States has been a favourite subject of speculation. The Greeks
organised city States which according to them had a divine origin. Later
1. Brierly : Law of Nations (4th ed.), p. 111.
STATE AND SOVEREIGNTY 181
speculators not convinced with the divine origin of States, explained the rise of
_political society by the hypothesis of an 'original contract' theory of which
Hugo Grotius was the main supporter. However, this theory w.a;s later proved
as superfluous and untenable by subsequent thinkers. 1 Thus, political thinkers
have propounded various theories regarding the origin and evolution of the
State. There are five main theories which explain the origin of the State.
They are:- · ·
1. The Divine Theory,
2. The Natural Theory,
3. The Social Contract Theory,
4. The Patriarchal Theory,
5. The Matriarchal Theory.
1. Divine Theory.-According to this theory, the State is the creation of
God. This theory was developed in the middle ages in Europe because of the
influence of Christianity which regarded King as the representative of God
having divine right to rule. The oriental rulers sought to justify their power to ·
rule over their subjects on _the basis of this theory. The Islamic countries also
regarded the King as a shadow of God. In Europe, however, the controversy
arose between the Church and the State, both claiming political authority on
the ground of the Divine authority. Both agreed that the ultimate source of
power and authority emanated from the divine origin but the dispute was
whether this right was vested in the temporal authority of the Pope or the
Emperor. The supporters of the Church held that divine authority was vested
in Pope while supporters of the State argued that the divine power to rule was
vested in the ruler directly by God, hence Church was subordinate to the
authority of the King.
Hindu mythology also accepted the divine right of King to ·rule over his
subjects. It was, therefore, believed that disobedience to King was sinful.
However, subsequently due to moral degradation of rulers and their greed for
power, there was chaos and confusion and the Kings b~come despotic rulers and
anarchy prevailed. This brought about considerable influence upon the minds of
the people and the theory of divine origin of the State gradually gave way to
the social contract theory which believed that it was du,e to the implied
agreement of the subjects to be governed which gave the ruler the power -i.:o
govern his subjects.
2. The Natural Theory.-This theory suggests that man is a social being
and the instinct of his sociability has given rise to the origin of the State.
Aristotle staunchly supported this theory and therefore, it is also known as
Aristotle's theory of origin of State. He argued that the interests of the
individual and the State were identical and men could n<")t live outside the
State. The purpose of the State, according to this theory was to promote general
welfare of its people. The theory, however, fails to explain the various
1. Holland T.E.: The Elements of Jurisprudence (13th Ed. ; Indian Economy Print, 2010) p. 49.
 182 JURISPRUDENCE AND LEGAL 1HEORY
influences which actually led to th~ forma~ion of the State. It believes that
State is not an artificial creation but its orgin i's entirely due to the unconscious
result of man's social nature and need for survival.
. 3. T~e Social Contract Theory.-The the~ry pre-supposes that the State·
1s a creation of agreement by the people. The people pay obedience to the
authority of the State because they have agreed to do so. Hobbes, Locke and-
Rousseau were the three main exponents of the 'social contract theory of the
origin of State.
Thomas ·Hobbes (1586-1679)
. Thomas ~obbe~ was. much p':1rturbed by the chaotic conditions prevailing
m England durmg his penod. He lived at the time when there was Civil war in
England between Protestants and Catholics. He was English thinker and a
'belated mediaevalist'. In his classic; work Leviathan (1651) he supported
desrotic rule of Stuart Kings and argued that people have no right to revolt
agamst the gov~n:-iment's authority. Tracing the origin of the State, Hobbes
obser~ed that ongmally man lived in a 'state of nature' united by social bonds
?ut without an~ :politic:11 o~ganisation. He paints a very dismal picture of the
state, of nature m which life of man was 'solitary, poor, nasty, brutish and
short becaus~ there was no industry and no art and people lived in constant fear
of _danger, v10lence and death. Under these conditions, there was perpetual
stnfe amongst the members of society and the stronger exploited the weaker.
Soon people got weary of this state of constant struggle and agreed by a contract
to be ruled by someone who would extend protection to their life. It is by such an
agreement that the political authority came into existence. Later this
political authority came to be known as the State. A sovereign was cho;en by
the people to whom they surrendered their rights to be governed and
controlled. The authority of the State was thus vested in the sovereign so
~hosen by the people themselves. Thus the contract was between the people
znter-se and sovereign was not a party to it, but he was rather the result of the
pact.
Hobbes supported social contract theory regarding evolution of the State
but ~e_categorically denounced existence of any actual contract between subjects
r~q~mng the ruler to fulfil his obligations. In fact, it was based on logical
fiction. and was an imaginary contract between the rulers and the ruled.His
authority was not limited by an agreement. The power of the sovereign was
abs~lute and his 'will' was the 'law' which the subjects were bound to obey. The
social contract agreed to by the people was permanent and irrevocable and
could not be br<:>ught to_ an end by the people. Thus sovereign was the central
power of aut~o~1ty. Obv1ou~ly Hobbes tried to support the monarchy in England
~ho had unlimited authority for restoration of peace and order and to govern
its people.
Hobbes justified the absolute authority of the State (Ruler) which
eventually paved way for the Austinian concept of Imperative theory or
command theory of law. .
STATE . AND SOVEREIGNTY . 183
John Locke (1632-1704)
Locke was against despotic monarchical ·rule and supported English
Revolution of 1688 in the reign of King James II who .was succeeped by William
III with people's support. The Glorious Revolution thus established the
supremacy of the British Parliament and opposed restrictions on people's
liberties by the ruler. The King's title being conferred by the Parliament, it was
obvious that he could rule only with the consent of the Parliament, i.e., the
people. Through his .two treatises on government in 1690, Locke supported
limited constitutional monarchy. He accepted that man originally lived in a
state of nature but the life of people in it was not one of universal war but pre-
eminently social in character. The men lived together according to reason
without a common superior with authority to judge them; However, there was
no one to tell them what is the rule of reason. The want of a settled law induced ·
people to abandon the state of nature and enter into an agreement for the
purpose of establishing a civil society under a sovereign. Thus Locke did not
agree with Bobbe's views that men gave up their natural rights absolutely,
instead sovereign is bormd by the original contract, the breach of which would
free people of their obligation to obey him. In other words, Locke's social
contract was not unilateral like that of Hobbes, but it was bilateral because
sovereign too was bound by the terms of the social contract. Locke repudiated
the theory of divine right of King or absolute State of Hobbes and defended
limited monarchy which was the creation of a special contract between the
people and the sovereign.
Locke believed that Government is a trust for the benefit of men and the
State has to exercise its power for the common good of the people.
Jean Rousseau (1712-1788)
Jean Jaques Rousseau was a French philosopher who improved upon the
social contract theory regarding the origin of State which was propounded by
Thomas Hobbes and subsequently modified by John Locke. Keeping in view the
English glorious revolution of 1688, Locke had rejected the Hobbesion concept of
despotism of sovereign as a law make and projected the view that State came
into existence to guarantee and protect natural rights of men. He observed that
State and as well as the law, both were the product of General will of the
people and sovereign was to rule only as per the law by using his legislative
powers. Thus emergence of State and its sovereign power was the result of
people relinquishing their natural rights and in return, received civil liberties
of freedom of expression, press, assembly and equality etc. 1
·Thus Rousseau also supported the social contract theory cf the evolution of
State but his views radically differed from those of Hobbes and Locke.
According to him, the life of people in the state of nature was perfectly happy
and people enjoyed their freedoms. But the necessities of self-preservation and
protection of private property compelled people to enter into a contract among
themselves by which they surrendered their right, not to an individual but to
1. In French terminology it is called volen te generale which meant will of the whole community.
184 JURISPRUDENCE AND LEGAL THEORY
the community as a whole for their generai g~d. The ruler was bound by the
general will of the people. Thus, Rousseau believed that all power originally
belonged and always belongs as of right to the people. They can create
governments and also overthrow them if they acted contrary to the wishes of
the people. He, therefore, supported the French Revolution of 1789. Rousseau
wrote his Social Contract in 1762.
According to Rousseau the real source of State, sovereignty, law, rights
and liberties of subject was the general will of the community as a whole and,
therefore, for him these concepts were interchangeable.
However, Rousseau's theory of natural law philosophy lost its supremacy
in early decades of 19th century due to-influence of Benthamite theory of
utilitarianism.
· The social ccjntract theory propound~d by Hobbes, Locke and Rousse~~as
been criticised being the result of purely speculative reasoning. The prqpotfuders
of this theory themselves were not unanimous about the actual condition of men
in primitive society. Austin calls social contract theory ~~cally unsound
and a contract by itself can never give rise to a legal duty unless it receives the
sanction of positive law. Sir Henry Maine also criticised social contract theory
of the origin of the State on the ground that primitive men did not have the
moral sense to attach sanctity to a promise. Moreover, the unit of primitive
societies was 'family' and not 'man' and man was not free to do things in his own
way, 1 hence it is futile to think that there was ever any contract between them.
Jethro Brown has commented that the "social contract theory
triumphantly slain by many generations of writers will not die and as a
philosophical thesis it contains certain underlying element of truth". At least,
it clearly shows that progress of society has not been spontaneous and the State
has evolved out of man's conscious effort and deliberate foresight. It further
points .out that the duties of obedience and protection are reciprocal.
4. The Patriarchal Theory.-The early history of mankind reveals that
primitive societies were closely knit together by the ties of kinship. The
'family' and not the 'individual' was the unit of society. As Henry Maine
rightly pointed out, the eldest male member of the family was the head of the
family and he had complete control over the members of the family. The
aggregate of families constituted a 'clan' arid the 'clans' taken together formed
the 'tribe'. In India also the eldest male member of the family called the
'Karta' had the absolute authority over other members of the family. He could
pledge, sell and even kill any person for an offence. Thus the origin of the State
can be traced back to joint family which taken together formed, clans to
perpetuate the worship of deceased ancestors. The clans grouped together came
to be known as tribes which eventually led to the formation of the State. 2
There are references to the Hebrew patriarchs in the Old Testament. The indo-
Aryan communities have also evolved on the patriarchal basis.
1. Henry Maine : Ancient Law, p.312
~- ~ •••. ~1.e: Early Law and Custom, p.198.
STATE AND SOVEREIGNTY . 185
5. The Matriarchal Theory.-This theory traces the origin of State from ·
the Horde, an tinorganised tribe, in which promiscuou_s sexual intercourse was
common. In course of time the practice of promiscuous intercourse without any .
matrimonial relations was abandoned and gradually relations gave way to
polyandry. Perhaps the institution of polyandry ·came into existence because of
paucity of women in certain primitive groups .. Polyandry eventually gave birth
. to matriarchal theory which preceded the patriarchal family. According to
matriarchal theory, the relationship of the family is to be traced through
female line. But Henry Maine has opposed this view and maintained that the
basis of relationship could be traced only through the male line of descendents.
McLenan and Morgan were the main propounders of the matriarchal theory.
Essential Elements (Requisite.s) of the State
It may be reiterated that a State is nothing but a politically organised
society co-ordinating the activities of its members and protecting their interests
by the maintenance of peace and the administration of justice. Certain rules are
necessary for the State to conduct its activities. These rules are called laws.
There are certain essential elements of the State. They are as follows : -
1. Population,
2. Territory,
3. Government, and
4. Sovereignty.
1. Population._;_Implies a considerable group of human beings living
together in a community, since the State comes into existence for the people,
population is one of the essential elements of a State. There is no fixed number
of persons to constitute a State, but it must be a considerable number.
2. Territory is a definite portion of the earth's surface upon which the
population permanently resides. A nomadic tribe cannot be designated as a
State unless they settle down in a definite territory. As pointed out by Harold
Laski, "the territories of a State are the regions over which it can exercise
sovereignty". However, Salmond does not .insist that a fixed territory is an
essential element for the existence of a State. What is necessary is the
exclusive possession and control over a certain portion of earth's surface. The
territory of the State also includes within it sea-water within three miles from
the seashore and the space above its territory.
A State may have a compact territory such as Switzerland or it may have
disconnected territory such as the British Empire or Pakistan prior to the
formation of Bangladesh in 1971.
3. Government.-The State must have some organisation to wield
authority over its people. Such an organisation is called 'Government'. 1?e
State administers its will through the agency of the Government which
normally has three organs, namely, the Executive, the Legislature and the
Judiciary. The legislature enacts the laws, and the executive enforces them.
186 JURISPRUDENCE AND LEGAL THEORY
i
There cannot be a State without a government. lt must be noted that a State is
an abstraction of which the government is a conhete form. However, forms of
government may vary, i.e., local, municipal, colonial and so on. The judiciary
ensures smooth functioning of the legislature and the executive and keeps them _
within their limits.
4. Sovereignty.-Sovereignty of the State implies that it is completely
free from any kind of external control and commands habitual obedience from
the people within its territory. The different States in India cannot be called
'State' strictly from the political standpoint because taken together they
constitute the Union of India which is one political unit and, therefore, it is
State in true sense of the word. Thus a Stat~ is distinguishable by virtue of the
sovereignty that it possesses from all other forms of associations. The
sovereignty confers upon the State two things, namely, (1) internal supremacy,
and (2) external independence.
Sovereignty may be defined as supreme and unfettered authority within a
State. The conception of Sovereignty has played and continues to play an
important part in juristic speculations. Acco-rding to Austin, Sovereignty is
distinguishable _by two main characteristics, one positive, and the other
negative. To satisfy the positive test, the bulk of a given society must render
habitual obedience to a common superior. The superior must be a human, and
must either be one person or a determinate body. The negative characteristic is
that the common superior must not be in the habit of rendering obedience to
another determinate human superior. For Austin, sovereignty is indivisible and
illimitable.
It is, however, submitted that the Austinian view that sovereignty is
neither divisible nor !imitable, is now generally rejected. The principal
objection to the view that sovereignty is indivisible is that in the first place it
is habitually split up into legislative sovereignty, executive sovereignty and
judicial sovereignty and these are quite independent of one another and cannot
encroach on one another's sphere in any way. Secondly "in the case of
federations, the sovereignty has beeh divided between each of the constituent
States and the federal State. Thus in such cases it is obvious that sovereignty is
not only divided, but it is also limited. In view of these considerations Jethro
Brown has rightly suggested that the correct view ought to be that the State
itself is sovereign and Parliament is merely the organ of legislative
sovereignty. This view has merited support from the modem jurists.
State distinguished from Society, Nation and Government.
State as a juristic person, is different from society, nation and the
government. The difference may briefly be summarised as follows:
1. State and Society.-It is erroneous to think that all human activities
are controlled and regulated by the State. The State merely regulates political ·
and legal relations of its subjects, On the other hand, society covers the whole
range of human relations and collective activities of individuals. Thus
'society' is a much wider term than the State and includes both organised as
STATE AND SOVEREIGNTY 187
well as unorganised communites. Society is prior to State and has no reference to
territory. The State has a coercive force of legal sanctions which the society
does not possess. ·
2. State and Nation.-A State is a society of men united under ori.e
government. A nation, on the other hand, is usually a group of persons who are
racially or ethically; the same._ Professor Sidgwick states that the persons
constitµting nation have a consciousness of belonging of one another, of being
members of one body, that is enough to constih1te a nation. A single State may
consist of several States and conversely a single State may comprise several
nations or part of nations. 1
3. State and Govemment.-The term government has a much narrower
connotation than the State. It consists of a group of persons who direct the
activity of the body politic. The Constitution of the State vests power of
governance in the Government. Thus government functions as an agent of the
State.2 Its main function is to maintain law and order and exercise the civil or
political powers. The State itself is an ideal person, intangible, invisible and
immutable but government is merely an agent of it. 3 ·
Functions of the State
It has been generally accepted that war and administration of justice are
the two main functions of the State. But in the modern context war may not be an
essential function of the civilised States as they may get their disputes settled
by peaceful .means without resorting to war. Broadly speaking, the primary
function of the State is maintenance of law and order within its defined
territory. Besides maintenance of law and justice, the State also has to perform
certain secondary functions, namely, legislation and taxation.
I. Primary Functions.-As rightly pointed out by Hobbes, the primary
functions of the State are to provide adequate safeguards and defence to its
people against external aggression and ensure maintenance of law and order
within the community. Administration of justice is also one of the primary
functions of the State. These are also called the constituent functions as they
are necessary for the very existence of the State.
Herbert Spencer also supported the view that primary functions of the
State include defending the country against external aggression, and to
maintain internai law and order.
According to Friedmann, the primary functions of the State are confined to
defence, foreign affairs, police and currency management. He prefers them to
call as traditional functions of the State.
II. Secondary Functions.-These functions are mostly related to welfare
activities of the State. The main secondary functions of the State are
le~s_l~tiEn and taxation. It is through a well-regulated scheme of taxation
\ 1. The Roman Empire included many nations but it was one State.
2. Herold Laski : Grammar of Politics, p. 131
3. 114 us 270 (1885)
188 JURISPRUDENCE AND LEGAL THEORY
that the State collects its revenue whic.h is\ ·essential for its activities. ·
Commenting on the welfare functions of the Staie, Salmond rightly observed,
'the nineteenth century idea of 'poHce State' has· lost all its credence in _the
wake of modem welfare State'. The dimensions of secondary functions are
expanding fast in the modern States. The directive principles of state policy
envisaged in Part IV of the Constitution1 of India contain an elaborate scheme
_of welfare activities of the State which can be treated as its secondary
functions.
Friedmann has referred to five different secondary functions, 2 which the
modern States have to perform. The State has to act as 'protector'i as
'Provider', as an 'entrepreneur', as economi~ controller and as an Arbitrator.
These functions may be elaborated as under :
(1) As a Protector.-State has to manage administration of justice,
disaster management etc. · exercise of power by the State, i.e., the Executive.
(2) As a Provider.-State has to provide public and social services such as
public works, health, insurance, employment, education and other contract
services.
(3) As an Entrepreneur.-The State has to conduct industrial and
commercial activities including railways, banking, shipping, mining, State
trading etc. These services may be State owned or in the form of companies,
corporations, public enterprises etc.
(4) As 'Economic Controller'.-State has to manage financing: planning. It
allocates economic resources to different departments, public and private
institutions and has the responsibility of ensuring equitable distribution of
wealth taking special care of poor indigent and weaker sections of society. Price
control is also of State's most important function." _•
(5) As an Arbiter...,......State ·Ji.as to ensure industrial peace through tribunals,
wage boards, commissions, awards etc. It seeks to resolve problems of different
nature through ADR methods which include arbitration, conciliation,
mediation and negotiations.
With the expansion of human activities in modern life, the State has a
duty to ensure socio-economic and political justice to its citizens and fulfil the
objective of a welfare State. · the King to f_ollow the tenets of dharma, i.e. the law in governance of his
Inter-relationship Between State and Law
Jurists have always expressed divergent views about the relationship
between the State and the law. Three main theories have been propounded in
this regard. According to one view, the State is superior to law because it
creates law while the other view holds that law precedes the State. There is
yet another view which suggests that the law and State are the same looked
from the point of view of the functions they perform.
1. Articles 38 to 51 of the Constitution of India.
2. Friedmann : Legal Theory (5th Ed) p. 493.
STATE AND SOVEREIGNTY : 189
. Law as a Product of State.-The English jurists Austin·and Bentham ha_v e
expressed a view that law is a product of the State. According to Austin,
. positive law is essentially a creation of the State. However, the sovereign
himself is not bound by the law which is binding ori his subjects. He has
unbriddled power to repeal, abrogate or annul the laws so enacted. Hegel also
supported this view and opined that law is a product of the State. The Nazi
and Fascist rulers treated law as the creation of State and the ruler was above
law.
Law is above the State-Yet another school of juristic thought believed in
the supremacy of law and held that law is above the State. Harold Laski,
Duguit and Sir Ivor Jennings asserted that sovereign is bound by law and he is
not above law. Krabbe also supports this contention and holds that the ruler
cannot change the law by his mere volition. 1,:-t fact, .law checks the arbitrary
John Rawls agreed that political power is always coercive backed by
state machinery enforcing the laws. But in order to ensure stability, laws·
should be acceptable to all the citizens as just and fair. Political society being
ever-lasting, citizens have no choice to leave it voluntaril_y as in case of ~ny
private association. The laws should, however, be. aimed at removing
disparity to the maximum possible extent so that the gap between the less
advantaged and more advantaged may be minimized if not obliterated.
State and Law are one and the same.-Kelson opined that in fact law and
the State are the two sides of the same coin. He observed, "when we think of
the abstract rules we speak of the law, when we consider the institutions which
the rulers create, we speak of the State''.
The foregoing analysis makes it abundantly clear that law and State are
intimately inter-linked. The question as to which of the two is ~upreme has to
be answered in context of the polity of the State concerned. Thus m England, the
supremacy of the State is evident from the fact that law is co~sider~d _t~ be a
command of the sovereign who is above and beyond law. But m I~ dia, it _is not
1
so. Even the Upnishads have reiterated more than once that Law is the
King of Kings" and no one, not even the King is above law. The . Code of
Manu has also acknowledged the supremacy of law over the ruler and expecte~
subjects.
The modem Indian polity also upholds the supremacy of law as a
constitutional mandate. The Supreme Court has time and again upheld the
suFremacy of the Constitution to strengthen Rule of Law. Thus in ·I.M. Singh v •
Borobubu Singh, 1 the Apex Court observed:
"No one in this country is above law and governance is not of
men but of the rule of law which permits no one to claim to be
above law."
1. AIR 1994 SC 505 (512).
 190 JURISPRUDENCE AND LEGAL THEORY
. . \
The supremacy of the Constitution, which i!; the law of the land in India,
has been preserved by the judiciary through the process of judicial review. The
expression· 'state' as defined in Art. 12 of the ,Constitution includes the
Parliament, the Government of India and the State Government, legislatures of
States, local bodies and even the Judiciary. 1 The Constitution is supreme and
above all these institution. . etc. are the best examples of federal State where the supreme .Government is·
Membership of State
Membership of State implies a person being a national or citizen of that
State .. ~ation~lity. may_ be i~herited by nationality of male parent (jus
sanguznis) or by birth (jus solz ) or by mix,ture oJ both, i.e., naturalization.
Nationality or citizenship constitutes a permanent legal relationship between
the _member and the State. It continues even if the member goes out of the
territory of the State. Citizenship carries with it certain greater rights which
are 1:1-ot avail~ble to resident aliens. The resident aliens owe temporary
allegiance durmg the period of their residence in a country. They, however,
o~~ a p~rmanent allegiance to the State of which they are citizens.
C1hzensh1p confers both civil and political rights whereas residence as an
alien confers only civil rights. · ·
. Nation~lity may be lo~t by re~ease upon application, deprivation, lapse,
i.e., long residence abroad m certain cases, on acquiring nationality of some
other country etc.
Classification of States
The States may broadly be classified into two heads, namely, (1) Unitary
and (2) Federal State.
~- Uni:tary State is one where the supreme legislative power of the State
vests m one central authority. It is not made of territorial divisions. Thus a
unitary State possesses a single sovereign organ exercising domain over ;he ·
whol~ territory comprised within the State. The power of law-making is also
ex~rc1sed by one central legislative authority. For exampl~, Great Britain is a
unitary State whe_r~ Parliament is the sole repository of sovereign power.
Other local authonhes, such as, county councils have also the power to make
laws but this power is conferred upon them by the Act of the Parliament and can
be taken aw~y by the Parliament any time. Thus there is a single legislature at
the apex which makes the State unitary in nature.
2. Federa! State, on the other hand, is one which is itself an aggregate or
group of c~nshtuent states. Nathan defines federation as "an aggregate of small
States ':h1ch while each retaining its separate identity, are united together
~or. defmed common purposes in a Union which, theoretically at least, is
1nd1ssoluble". · -
. According to Dicey, a "federal State is a political contrivance intended to
reconcile natio1:"al unity with the maintenance of State rights". Maclver defines
1. A. R. Antulay v. R. S. Nayak, AIR 1988 SC 153.
STATE AND SOVEREIGNTY i91
federation as "the formal division of sovereign powers between the constituent
or part states and the larger State which they compose". Thus the
distinguishing· feature of a federation is that it is a composite State and its
constituent units are themselves states. Therefore, a federal State has a more
complicated political organisation than a unitary State. U.S.A., Canada, India
divided by the Constitution in definite shares between the Central government
and its constituent States.
Dean Roscoe Pound has observed that a "federal polity is necessarily a
legal polity. Only a Constitution which is the supreme law of the land can
hold the whole and parts in their appointed spheres".
Federal State and Confederation Distinguished
It must be stated that a composite or federal State is different from a
confederation whose authority is terminable by its constituent units at their
will and therefore, it cannot be regarded as having a sovereignty. In a
federation, both, federal State and the member States are sovereign in their
own spheres. As Garner rightly pointed out that the component units of a
confederation are free to withdraw at will and thus dissolve the confederation.
On the other hand, a federation is a permanent union for an indefinite period.
According to Hall, "a confederation is a union strictly of autonomous states
which consent to forego permanently a part of their liberty of action for certain
specific objects, and they are not so combined under a common government that
the latter appears to their exclusion as the international entity". Thus, it is a
mere alliance between independent States.
Thus it would be seen that a confederation is a temporary union for a
specific temporary purpose and it is dissolved when that purpose is achieved
but a federation is a permanent union for an indefinite period.
Explaining the concept of federation, Professor K. C. Wheare has stated
that, "federal principle is a method of dividing powers so that the Central and
the regional governments are _each, within a sphere, co-ordinate and
independent. For instance, United State of America, Australia, Canada,
Switzerland and India are some of the countries having federal governments.
Characteristics of a Federal State
A federation pre-supposes existence of a number of constituent units having
certain common interests and problems. As Dicey pointed out, "these constituent
units must desire union and must not desire unity". The people of the States must
be ethnically united and the territories must be geographically contiguous. In
short, a federation is a product of two apparently inconsistent sentiments of
national unity and State independence is a polity.
The essential characteristic features of a federation are as follows : -
1. Federal Covenant.-It is a compact or covenant between sovereign or
autonomous States which creates a federation. It is therefore, necessary that a
192 JURISPRUDENCE AND LEGAL THEORY
\
federation must have a written Constitution which is supreme and equally
binding on all the units. This supremacy of the Cpnstitution is most important
feature of a federal -State.
2. Distribution of Powers.-The po~ers of the Government are divided
between the federation created by the compact and the constituent units of the
federation. The three organs of the Government, namely, the executive, the
legislature and the judiciary of the federation and the member-States are
clearly demarcated by the covenant of the Constitution. Thus each of these
organs has a limited sphere of authority but each is ·supreme in its own sphere.
As A.V. Dicey observed, "this distribution of limited executive and judicial
authority among bodies, each co-ordinate with and independent of the other, is
the very essence of a federation".
It is significant to note that the actual distribution of powers between the
Centre and the States in a federation depends on its peculiarities and historical
development. For example, in United States, specific powers are given to the
Congress which is the federal legislature and the residue powers are reserved
to the States. The Swiss federation is also modelled on the same pattern. But
the Canadian federation has followed a reverse arrangement and specific
powers are conferred on the States while residue powers are given to Federal
Parliament. India also follows the Canadian pattern of federal polity.
3. Rigidity of Constitution.-The distribution of powers between the
federation and the constituent States cannot be disturbed except by amendment
of the Constitution. The amending power cannot be vested in the States,
instead, it is vested in the Federation. Thus, any provision of the Constitution
can only be changed by amending the Constitution1 and not otherwise. It is in
this sense that it is quite often said that in a federation there is rigidity of
Constitution. ·
4. Supremacy of the Judiciary.-In a federal polity the judiciary is the
guardian of the Constitution and therefore, it is supreme. The Supreme Court or
the Federal Court interprets the Constitution. It is the final Court of appeal
and entertains appeals from the subordinate federal courts and tribunals. Thus
in India, the Supreme Court is the final authority on all matters relating to
interpretation of the Constitution.
The Concept of World Federation
In recent years there is much talk about global unity for the upliftrnent of
humanity and a world order for regulating the relations between various
nations in various fields of human activity. There is growing need for mutual
help and co-operation among nations for their security and peaceful co-
existence. In order to attain this purpose, some thinkers have floated the idea
of formation of a world federation in which all States would be autonomous
units with equal powers irrespectively of their development status. 2
I. Article 368 of the Constitution of India; Art. 5 of U.S. Constitution.
2. Presently, the world countries are broadly placed into three categories, namely, developed,
underdeveloped and developing countries.
STATE AND SOVEREIGNTY 193
Obviously, this idea has come as a reaction against domination of developed.
countries over developing and third world countries. The suggestion may sound ·
well from the theoretical point of view but one really wonders whether the
powerful nations would be really willing to part with their powers and relish
the idea of smaller nations sharing equal powers with them. Therefore, the
feasibility of world federation in actual practice seems to be a remote
possibility at the moment.
Sovereignty
Sovereignty is one of the chief attributes of statehood. This term was for
the first time introduced by the French political thinker Jean Bodin. The word
'sovereignty' is derived from French word 'soverain',.which in its own tum was
derived from the latin word 'suprifus' which meant a supreme authority
having no other authority above it. This original notion of sovereignty,
however, has no importance in the modem context because sovereignty now
signifies supreme power of law-making. ·
In its popular sense, the term sovereignty means supremacy or right to
command obedience. A sovereign State is one which is not subordinate to any
other State and is supreme ov€r the territory under its control. Its commands are
necessarily to be obeyed by all men and associations within its territory.
According to Bryce, "legal sovereignty lies in that authority, be it a
person or a body, whose expressed will shall bind others, and whose will is not
liable to be overruled by the expressed will of anyone placed above him or it" .1
Thus in the modern sense the sovereign is that person or body which is the
supreme legislative authority in a given State.
Evolution of the Concept of Sovereignty
The concept of sovereignty was unknown to ancient world. It is essentially
an outcome of medieval period when there was renaissance and reformation in
Europe. It was Machiavelli who developed the concept of state absolutism,
that is, the State is absolute and an end in itself and there cannot be restraints
on its powers. He opined that state is not subordinate to the church or natural
law.
The concept of absolute and perpetual power of the State was termed as .
'sovereignty' for the first time by French jurist Jean Bodin in his famous work
Republic which appeared in 1577. He emphasised that the ruler is the
ultimate source of all laws.
Hobbes' Theory.-The theory of sovereignty was further developed by
Thomas Hobbes who observed that sovereign was absolute and his power was
inalienable and unlimited. The power of the sovereign extends to religion and
church as well.
Bentham's Theory.-Jeremy Bentham, the great law-reformer of England
also supported the absolute power of the sovereign but he justified it on
utilitarian principle of hedonism. According to him, the sovereign had the
I. Bryce: Studies in History and Jurisprudence, Vol. II, p. 53.
 194 JtiR1SPRODENCE AND LEGAL THEORY
. \
au_t~ority to rn~ke laws but they should -be in cortfonnity with the principles of
utility. He believed that s_o vereign power can be subjected to certain legal
restrictions. ·.
\
.. Bentham def!nes '§Overeign' as a person or group of persons to whose will a
polit~cal co~umty (l,i!, the subjects) are supposed to be in a disposition to pay
obedience, m prefereJle@ to any other person. I ·
Reacting sh~rply fb the theory of absolute power of the Sovereign as
advoc~ted by Hol:,'bg~ and Bentham, some writers notably, Dicey, Jethro Brown,
Dugm~ and oth:J'.$ altg attempted to explain the concept of sovereignty
according t? then· QWfl ideology. Their views on sovereignty vis-a-vis the
State, are bnefly summfttised .as follows.
A_· V. Dic~y.--Dj~~y draws a distinction between 'legal' and 'political'
soverei~. Parha~ent is the legal sovereigi:i because it has supreme power of
!aw-:making. Behmd th@ legal sovereign there is the political sovereign which
is t~~ electorat~. Thu1 the legal sovereign acts according to the .wishes -of the
pohhcal sovereign. I>fe~y further obt.erved that the test to determine whether
a person or a body of::p@fsons is sovereign or not is to see whether it has power to
make and unmake any law.
J~thro Brown.-...According to Jethro Brown, state as a corporation, is
sovereign. It acts throll$h its various_ organs to accomplish its corporate purpose.
He argues that sovereign is not a person or a group of persons distinct and
separate from community. Since community expresses its general will t_h rough
the organs of the gov~fnment, the sovereignty lies in the community itself.
Lord Lloyd_ detmQa 'sovereignty' as a practical device of law and politics·
wh:reby effect IS_ g1vefi to the practical need in any community for some final or
ultimate authority. ·
Leon Duguit.-..Duguit calls the theqry 'of State sovereignty as a myth
be~ause the State really has no supreme or superior power. He believes that the
ultimate e~d _of all_ hqman institutions including the state, is social solidarity.
Th~refqre, it is futile t-o think that the state has unlimited or absolute power.
It 18 b~und by the rttle of social solidarity hence there is nothing like state
sovereignty.
~arxist View.~The Marxists take a narrow view of the theory of
l sove~eignty because \hey believe that it is intended to protect the interests of
d~mmant class of so~tety. According to marxists, the State shall wither away
~it~ ~evelop~ent of_~ class-less society. In their view, sovereignty of the state
ts hmited by mtern~h<;)nal law which imposes a check on the absolute power of
the state. They consid~r theory of sovereignty as a "grear stumbling block in the
path of international ~rogress".
~arxist the~ry o.f sovereignty and state has been opposed by John Rawls.
He disagrees with Marxist view that political rights and liberties in a
1. Bentham : of Laws (h Gt?neral p. 18.
STATE AND SOVEREIGNTY 195
constitutional regime are only formal, and asserts that they assure to all
citizens, whatever their social status, fair opportunity to exert their political
influence. He was also critical about division of labour under Marxism and held
that it will wither away in a socialistic democracy once its objective is
realised. Thus according to him, "communist regime seems to be beyond justice in
the sens~ that the circumstances· which give rise to distributive justice are
suppressed and citizens need not be concerned with it in their day to day life.
Austinian Theory of Sovereignty
From the jurisprudential point of vi~w the definition of sovereignty a~
given by John Austin appears to be more acceptable. He explained the nature of
sovereignty in the following words : -
"If a determinate human superior, not in the habit of obedience
to a like superior, receives habitual obdeidence from the bulk
.of a given society, that determinate superior is sovereign ·in
that society and the society, including the superior is the
society political and independent. To that determinate
superior, the other members of the society are dependent. The
position of its other members towards the determinate superior
is a state of subjection or a state of dependence, the mutual
relation which subsists between that superior and them may be
styled the relation of sovereign and subject or the relation of
sovereignty and subjection" .1
This definition of sovereignty as given by Austin suggests following
implications :--
1. Sovereign Power is determinate.--That is to say, in every independent
political society, there ·is a sovereign power which extracts obedience from the
bulk of the_~embers of the society.
2. Sovereign Power is legally unlimited.--According to Austinian concept
of sovereignty, sovereign is the source of law. Thus law is the will or command
of the sovereign. The power of the sovereign is legally unlimited, that is, he is
not bound even by his own commands and he can make and unmake any law.
Austin, however, agrees that the sovereign power may have de facto
limitations, since it is dependent on two factors, namely, coercive force which
the sovereign has at his corrlmand, and the docile disposition of the people.
Thus Austin only suggests that there cannot be de jure limitations on the
sovereign authority. This, in other words, means that there can be no legal
limits on the power of the sovereign authority.
3. Sovereign Power is indivisible.-It would be seen that Austin's concept
of sovereignty is distinguished by two characteristics, one positive and the
other negative. The positive characteristic is that the bulk of a given society
must render habitual obedience to a common superior who must be a human
being, i.e., a person or a body of persons. The negative characteristic is that the
1. Austin: Jurisprudence, Vo I. pp. 220-21.
196 JURISPRUDENCE AND LEGAL 1HEORY
common superior must not be in the habit of ~ndering obedience to another
determinate human superior. Thus, Austin pre-supposes that there can be only
one sovereign in a State and his power is indivisible.
Lord Bryce, however, holds that the theory df indivisible sovereignty as
suggested by Austin, breaks down in the case of f 7deral States in which power is
divided into legislative, executive and judicial sovereignty. These three
branches are quite independent of each other in a federal Constitution. Thus
Bryce suggests that legislative sovereignty is divisible and it may be
concurrently vested in different persons or bodies co-ordinating together wholly
or partiidly, through acting in different spheres. 1 For example in India, the
executive sovereignty lies in the President of India as he is the supreme
executive2 and his executive powers cannot be impaired. But in the legislative
sphere, Parliament is supreme legislative authority since President's power to
withhold assent is limited. It is true that the Constitution can be amended only
when the amending Bill has duly been passed as required by Art. 368, and has
been assented to by the President, but once th~ bill having been passed by both
Houses of the Parliament, the President's assent to it is a matter of course and
he cannot withhold assenting the bill all the time. It is Jor this reason that in
the legislative sphere, it is the Parliament which is vested with the sovereign
power. However, there is no judidal sovereignty in India.
Harold Laski observed that there are three main implications of the
Austin's theory of sovereignty. Firstly, the State is .a legal order in which
there is a determinate authority acting as the ultimate source of power, its
authority is unlimited even if it acts dishonestly or unwisely. S-econd.ly,
command is the essence of law, that is if the order comes from the sovereign, it
must be obeyed and its disobedience shall result into punishment. Thirdly, in
every independent political society, there is a sovereign power which extracts
habitual obedience from the bulk of the members of the society. 3 Sovereignty is
the source of law and its legal powers are unlimited.
Criticising Austinian concept of absolute sovereignty, Laski pointed out
that "no sovereign has anywhere possessed unlimited power and the attempt to
exert it has always resulted in the establishments of safeguards". Even the
British Parliament does not enjoy absolute powers in actual practice because
though legally it can outrage public opinion, but its results are bound to be
. disastrous for its very existence. The influence of other associations within the
State is no less important than the State itself as a sovereign. He therefore,
con~luded that "externally, the concept of absolute and independent sovereign
State which demands an unqualified allegiance to government from its members
and enforces that allegiance by the power at its command, is incompatible with
the interests of humanity".
Austin's monistic theory of sovereignty nas been assailed by A. V. Dicey
who observed that in a democratic State the legal sovereign is that person or
1. Lord Bryce : Studies in History and Jurisprudence, Vol. II, p . 537.
2. Article 53 of the Constitution of India.
3. Laski Harold : Grammar of Politics, p . 49.
STATE AND SOVEREIGNTY 197
body of persons who have power to make the law, i.e., Parliament whereas the
. political sovereign is electorate whose will ultimately prevails and the ·legal ·
sovereign is bound to act according the will of the people, by which he meant
public opinion. Thus, in democratic States, although Parliament is the legal
sovereignty but it is the electorate who are political sovereign and whose will
expressed in the form public opinion; the Parliament is bound. to follow in law-
making. ·
Salmond's Theory of Sovereignty
Like Austin, Salmond also believes that sovereign power is determinate,
that is, in every political society there must be a sovereign authority .1 He,
however, points out that it is not necessary that sovereignty in all cases should
be found in its entirety within the confines of the . State itself and it may,
wholly or partly, be external to the State. Thus unlike Austin, Salmond
visualises the possibility of the existence of a semi-sovereign State.
But disagreeing with Austin's view that sovereignty is unlimited,
Salmond thinks that the ambit of sovereignty is not unlimited. According to
him, Austin has erred in confusing the limitation of power with its
subordination. The authority confined to a particular organ should be treated as
sovereign if in its own sphere it acknowledges no higher power, though its
authority may not extend to other spheres. Thus what Salmond actually
wanted to suggest is that the province of sovereignty may have legally
determined bounds.
Salmond further suggests that sovereign power is divisible. It may be
divided into three organs of the State, namely, legislative, executive and the
judiciary, each being free and uncontrolled in its own sphere. Even legislative
organ may further divide its power into two or more co-ordinate legislatures
each dealing exclusively with certain specified legislative areas.
Salmond observed that theory of sovereignty is founded on three
fundamental propositions, namely (1) Essentiality (2) Indivisibility and (3)
Illimitability. He regards the first of these propositions as correct but the
other two prepositions are without any solid foundation.
According to Salmond's first proposition, the existence of sovereign power
is essential in every State. It is, however, not necessary that in all cases the
entire sovereignty is to be found within the borders of the State itself, it may be
wholly or partly external to the State.
Though Austin has asserted that sovereignty is indivisible as it resides
only in the person or defined group of persons who is politically supreme. But
this view does not hold good with reference to England and India where
sovereignty is divided between Legislature (Parliament) and the Crown in
England or President in India.
As regards illimitability of sovereign power, it is true that sovereignty
cannot be subordinated to any other power but it would not be correct to say that
1. P. J. Filzgerald: Salmond on Jurisprudence (12th ed.), p. 490.

198 JURISPRUDENCE AND LEGAL THEORY
. \
it is unlimited in its compass. There are de facto and de jitre limitations of
sovereignty. The power of sovereign is limite_d to the extent to which the
subjects are ~illing to submit to his domain. I! is also limited by power of
judicial review which the Court may exercise· and declare the act of the
sovereign void in case it is found contrary to the provisions of the Constitution
e.g., violation of any fundamental right guaranteed to the citizens. In United
State of America also neither the Congress nor any State legislature possesses
· unrestricted powers, they cannot amend the Constitution without the support of
majority of three-fourth of the State legislatures and 2/3 majority of the
Congress.
Criticism Against absolute Sovereignty
Sir Henry Maine has criticised Austin and Salmond's views on sovereignty
and observed that sovereignty does not ~eside in a detenninate human superior.
He asserts that a variety of influences such as moral, ethical, etc. perpetually
limits or forbid the sovereign to direct his sovereign force on his subjects.1 Thus
in practice no sovereign could afford to disregard the customs, usages and
religious beliefs of its people though theoretically he can exercise his
'irresistible coercive power' at his own detriment. Citing an illustration to
support his contention, Maine pointed out that the mighty Sikh Ruler of Punjab
Maharaja Ranjeet Singh could command anything and the smallest
disobedience to his command would have resulted into severe punishment such
as mutilation or even death, but in spite of that, Maharaja, "never once in his
life issued a command which Austin could call a law. The rules which
regulated the life of his subjects were derived from their immemorial usages
and these rules were administered by domestic tribunals in families and village
communities".
Expressing his views on sovereignty of the British Parliament Sir Ivor
Jennings disagreed with Dicey's view that the Parliament in Britain has
unlimited sovereign power which cannot be restricted by its own particular
enactment. Dr. Jennings asserts that legal omnipotence of . the British
Parliament does not necessarily mean that it possesses unlimited sovereignty.
He pointed out that what Dicey was hinting at was the subject-:matter of
legislation and not the method of it.
Sir Henry Maine pointed out the real difficulties in applying the doctrine
of sovereignty to the facts of history. He looks upon the doctrine as an ideal or
abstraction as it is a mistake to suppose that the obligation of law rests
· everywhere, and at all times, upon a sovereign political authority. Sir Thomas
Holland, has expressed disagreement with the Maine's views and held that
· his thesis hardly holds ·good in context of contemporary England and the
English Government.2 ·
Leslie Stephen has observed that sovereignty is limited both from within
and without : "from within because the legislature is the product of a certain
1. Henry Maine: Early Institutions, Lecture XII.
? Holland T.E. : The Elements of Jurisprudence, (13th Edition, Indian Economy Print, 2010)
p. 53.
SfATE AND SOVEREIGNfY 199
social condition and determined by whatever determines the society, and from
without because the power of imposing law is dependent upon the instinct of
subordination which is itself limited. If a legislature decided that an blue-
eyed ·babies should be murdered, the preservation of blue-eyed babies would be
illegal but legislatures must go mad before they could pass such a law and
subjects be idiotic before they could submit to it". He further commented, "as
there is in nature no such thing as a perfect circle or a completely rigid body, or
a mechanical system in which there is no friction or a state of society in which
men act simply with a view to gain, so there is in nature nothing .as an absolute
sovereignty".
The critics of absolute sovereignty further point out that "legally an
autocratic Tsar may shoot down his subjects before the Winter Palace at
Petrograd, but morally it is condemnation that we utter. There is therefore, a
vast difference between what Dean Roscoe Pound has admirably called "Law in
Books and Law in Action".
It may finally be concluded that Austinian theory of sovereignty has only
a theoretical significance in the modem democracies of the world. It was we!l
in tune in the 19th century imperialistic governments. In the present context, it
is not only impossible to exercise unlimited power by the sovereign but it is not
desirable as well. History reveals that wherever the rulers were given
unbridled power, the result was ruination and chaos and people suffered untold
miseries. The sovereign's power is restrained and limited by the force of public
opinion which has an overriding influence on democratic governments.
Sovereignty under the Indian Constitution
India does not subscribe to the view that sovereignty is an absolute and
unlimited power. In Indian Federation, Constitution is supreme which vests
executive sovereignty in the President1 and the legislative sovereignty is
vested in the Parliament as well as the State Legislature. 2 Though judiciary is
regarded as the guardian of the Constitution, there is nothing like judicial
sovereign.tr;
0□0
1. Article 53 says "the executive power of the Union shali be vested in the President."
2. See Legislative Lists (Vllth Schedule) Article 246; List I Union list has 97 subjects on which
Union Government can make laws. List II i.e. State list contains 66 subjects (items) on which
State Legislatures can make laws, and List III called the concurrent list has 47 items on
which law can be made both by the Parliament and the State Legislatures.

\ H.L.A. Hart, law exerts a certain "pull" on human beings towards compliance
\ with law. 1 ·
10
THE NATURE OF LAW
• 1:he purpose_ of legal theory is to att_ei_npt to ans~er the question what law
1s.1 Jurists and wnters have devoted sufficient attention to the meaning, nature
and ~cope of law. 1 There is yet another reason as to why an intensive study of
~a~ 1s necessary. It has been reiterated that "law" is the subject-matter of
Jurisprudence s~ce the _latter deals with_ the study of law. Austin thought it
necessary to define law m order to establish the province of jurisprudence. He
devoted as many as six lectures to explain the nature of law in his classic work
Province of Jurisprudence Determined which was published in 1832.
_Law in its most general and comprehensive sense means any rule of action
and includes any standard or pattern to which actions are or ought to be
conformed. In its judicial sense, 'law' means a body of rules of conduct action or ·
_behaviour of persons, made and enforced by the State. It expresses' a rule of
?u~an action. Sir !.E.
Holland pointed out that the term 'law' is employed in
JUnsprudence not m the sense of the abstract idea of order, but in that of the
abstract idea of rules of conduct. Therefore, "a law" on the sense of rule of
action, is a proposition commanding the doing or abstaining from doing, certain
classes of acts, disobedience to which is followed, or is likely to be followed, by
some sort of penalty or inconvenience.
However, the rules of human action which are often confused with laws
proper, are those which are called laws of God; laws of nature and laws of
morality. These, according to Holland are so-called laws which are
occasionally confused with laws properly so called from this stand point, laws
may be of three kinds, !lamely (1) the eternal or uncreated, (2) the natural law
(internal) and (3) external which are imposed by the State. Thus, for Holland,
law is a general rule of external human action enforced by a Sovereign political
authority.
Hobbes also defined law as "the commands of determinate superior that
has coercive powers".
According to Blackstone, "Law in its most general and comprehensive sense
signifies a rule of action, and is applied indiscriminately to all kinds of actions,
whether animate or inanimate, rational or irrational. Thus there is law of
gravitation, of optics, of mechanics, as well as the laws of nature and of
nation". The term 'law' in this sense is applied to observe uniformity of actions.
As to the question why do people generally obey laws, the convincing
reply may be that they do so because rules of law generate standards which
people consider it necessary to obey as their moral duty. As pointed out by
1. P J. Fitzgerald: Salmons on Jurisprudence, (2nd Ed., 5th Reprint, 1988) p. 1.
( 200)
THE NATURE OF LAW 201
·
The early Greek philosophers, notably Plato and Aristotle believed in
the existence of an unwritten highest law of devine origin which preceded all
human laws and which is co-extensive with the eternal order of things. Later,
Thomas Aquinas, the propounder of .natural law philosophy, developed a
rational approach to law. The tendency to weigh the rationality of law
through 'reasoning' developed towards the seventeenth century which the
medieval jurists termed as legal positivism. 2 However, as the civilization
progressed the complexities in human life and social pressure necessitated some
external protection to regulate the social requirements and this function was
assumed by the law under the patronage of sociological school adopting a
realist ideology. .
Definition of "Law"
Jurists have defined law differently from different point of views. It has
been called Dharma in Hindu jurisprudence and "Hukum" in Islamic system.
Romans called it /us and in Germany and France it is called as Richt and Droit
respectively. According to Max Muller, in the Hindu Vedic Hymns Gita, the
moral order and righteousness derived fro]Jl the order of the heavenly
movements came to be named as laws which the society was ordained to follow
scrupulously.3
In ancient States law was conceived as divinely ordained set of rules of
human action, therefore, it was believed to have a divine origin. Although
these definitions are no longer applicable in the modem time but they still
have a theoretical significance.
According to Justinian, "law is the king of all mortal and immortal affairs
which ought to be the chief, the ruler and the leader of the noble and the base,
and thus the standard of what is just and unjust, the commander to animals
naturally social of what they should do, the forbidden of what they should not
do".
Ulpian defined law as "the art of science of what is equitable and good".
The ancient Hindu jurists held law to be the King of Kings, far more powerful
and rigid than they, nothing can be mightier than law, by whose aid, as by
that of the highest monarch even the weak may prevail over the strong".
The_ above idealistic definition~ of law were given at the time when there
was no distinction between law, morals and religion and law was broadly.
conceived as a part of religion. These definitions have therefore, --lost their
significance in modem time when law is.-b-eing treated as an instrument of social
change. The element of 'justice' in law is, however, considered necessary even in
the present time. But what law contemplates today is 'legal justice' and not
1. Hart, H.L.A.: Concept of Law, (1961), p. 56.
2. Lewis Ewart: Natural Law and Expediency in Medieval Pclitical Theory, (1940), p. 50; See also
Thomas Hobbes: Leviathan, (1991), p. 27.
3. Hibbert : Lectures on Jurisprudence (1878) p. 235.
 202
ltJRISPRUDENCE AND LEGAL TI-IEORY
'abstract ju t· • • THE NATORE OF LAW 203
pervades a~ i:e :~h;suali~e~ by the a~~ient ~urists. In the present age law·
them .through the ineJ;::ent~~an ;ct1v1tes and the State seeks to regulate According to J.C. Gray, "law is a statement of the circumstances in Which
P ositive role in regulat·m·g h umanI con
y od awTh.The .I.aw therefore, has to play a public force will be brought to bear upon men through courts. It consists of rules
uct e m0 d · · · h which the courts lay down for the determination of legal rights and duties".
• tice.
as a means to. secure. leg·.a·1JUS · , em JUnsts ave defined law
According to him, statutes are sources of law and not part of the law itself.
According to Holland .J • th ·
. rule of human actio~ . taki~ a;:;
~ e proper sense of the term, is a general Salmond defined law "as the body of principles recognised and applied by
the State for the administration of justice". The object of law is to achieve
determinate authorit~ (th' g tgruh~anc~ ohnly of e~temal acts, enforced by a
. . ,, 1s au onty 1s uman being) d h justice.
authorities is that whi h • an , among uman
considered law as . c is pa~amount in a political society. Thus, Holland The definition ·of law is well explained by Roscoe Pound. He stated law to
sovereign political a!tife~tyer~t rule of eternal human action enforced .by a be "sociaf control through systematic application of force of politically.
also enforced b s . on. . . aw ~ot on y emanates from a sovereign but it is organised society". Thus law can be described in terms of legal order accepted by
authority".! y OVere1gn, which Holland prefers to call "determinate
society at large functioning within the limits of the State.
Expressing his views r d• fu . However, Salmond's definition of law has been critisized on the ground
Lord Lloyd observed "s· egar mhg_co~ .. s1?n about an exact definition of law, that any law passed by the State i.e. Legislature becomes a statute law at once,
. , mce muc Junshc mk has flown · d
provide a Universally acce tabl d f ·t· m ~ en eavour to and it has not to wait for recognition by the Courts.
attaining that objecfrve" 2 A p . h~l e 1~1 ion of la~, but with little sign of
confusion in definin .. . s ng y pointed out by R. Wollheim, much of the Vinogradoff has criticized the definition of law as given · by Salmond
to be achieved. g law has been due to the different types of purpose so~ght saying that Judges only apply the law but do not make it. The purpose of law is
not confined to administration of justice alone but it may vary with the changes
Morris also holds · · i • taking place in the society.I
definition of law and. ~1m1 :~ v1e_ws about the lack of unanimity in the
various legal scientist~ or::sd .f;t smce ~aw has _been differently defined by According to Paton, "law consists of a body of rules which are seen to
. unanimity of opinio:tt.' d _1 er~nt pomts of views, there could not be any operate as binding rules in the community by means of which sufficient
Despite there being lote!tart mgt t e rea!l nbature of law and its definition. compliance with the rules may be secured to enable the set of rules to be seen as
definition of law whi~h ld1 bera ure avba1 a le on law, there is no common binding".
cou e accepta le to all. ·
Law, according to Kelson is a technique of social organisation. He says,
Modem jurists hEtve d fin d 1 f d.
. it on the basis of its ~4h1 e e aw rom ifferent angles. Some have defined "law is characterised not as an end but as a specified means, as an apparatus of
writers define law in t'e= sor; c~~centrate mainly on its sources. Again, some compulsion to which, as such there adheres no political or ethical value, law
it in terms of ends or Ph . s o f1Is e ect on society while others prefer to define apparatus whose value derives rather from some end which transcends the
~rposeo aw. law".
About the exact definition of la K .
establish a single defif\itio f I . w, eeton po~te~ out that, "to attempt to It would thus be seen that no single definition of law can be treated as
straight jacket from Wfiichn_ot. aw is_ to sellek to_c?nfme Jurisprudence within the satisfactory because law is ever changing in the dynamic fabric of its inherent
1 1s contmua y stnvmg to escape" . element. All developments in law follow certain sequence. It is for this reason
According to Bla(Zkstone "la . .t
signifies a rule of acti0n, d '. w t ·
~ s_ m~st ~e~eral and comprehensive sense
whether animate or in: ~n is app_ ie md1scnmmately to all kinds of actions
that Thurman Arnold observed, "law is ultimately a set of positive prescribed
formal rules enforced by the sovereign authority with the approval of common
animate, rational or irrational". ' public opinion in response to social challenge emanating from contemporaneous
Hooper define~ law as "an k" d
framed ... that which TEN:.\son in
Ih . . ·. .
h yt d lr
of rule whereby actions are
sue sor - e mes to be good that it must be done"
factors and currency of forces".
H.L.A. Hart has defined law as a system of rules-the primary and
ermg defmes 1-w as "the su f th .. .
assured by State's pnu.,;.,,., f i:n
~wv,;:r o constraint" Th
°
e conditions of social life, of society
h tr ,
secondary rules, their union or combination may justly be regarded as the essence
of law. The primary rules according to Hart are duty imposing while secondary
social control and it$ b d. . · us, e ~eats law only as a means of
compulsion. Ihring e~p~a=is:~nc~ isl sec_ured. by the State through external rules are power conferring.
of human society. t at aw is an mstrument for serving the needs A law, in the proper sense of the term, is a general rule of human action, .
taking cognizance only of external acts, enforced by a determinate sovereign
I. ~oll~d : Jurisp~uci~nce (13th Ed) p. 41. authority, which is human, and, which is paramount in a political society.
2. yod . Introduct,on ~ Jurisprudence, p. 42. Thus, briefly stated, law may be defined as a general rule of external human
1. Vinogradoff: Historical Jurisprudence p. 117.
204 JURISPRUDENCE AND LEGAL THEORY
action enforced by a sovereign political authori~ All other rules of guidance of ·
human action are called laws merely by analogy" which Holland calls as "laws
so-called."
Distinction between 'the law' and 'a law': '.
The subject-matter of jurisprudence being the study of law, it is necessary
to understand the distinction between the term 'the law' and 'a law'. · ·
The term 'the law' (or law) connotes the whole legal system in its
totality. It has been termed jus droit in l~tin and its German equivalent is recht.
According to Roscoe Pound, the expression 'the law' or law means the legal
system operating in a country. On the other handL the term 'a law' means a
particular statute in its isolated form, the ,latin equivalent for which is lex
loci, i.e., a statute.
Jeremy Bentham has expressed a view that the term 'the law' means,
"neither more or less than the total of fl number of individual laws taken
together". Thus every Act of Parliament is called "a law" whereas the
aggregate of Acts comprising legal system are known as 'the law' or 'law' of the
country. Thus, 'the law' according to Bentham, is a collective term which
denotes nothing more than "the sum total of a number of individual laws taken
together".
Nature and Function of Law :
Law may be described as a normative science, that is, a science which lays
down norms and standards for human behaviour in a specified situation or
situation enforceable through the sanction of the state. What distinguishes
law from other social sciences is its normative character. This fact along with
the fact that stability and certainty of law are desirable goals and social
values to be pursued, make law to be a primary concern for the legal fraternity.
Theoretically speaking, Judges do not make law, they only interpret or declare
it, but the truth is that even during the period when analytical positivism
held its sway, the common law Judges through their judicial creatively
developed the common law to suit the needs of the social change.
With the emergence of the sociological school, the creative role of
lawyers and Judges came to be recognized explicitly. The legal writings of
sociological jurists coincided with the change in political philosophy from the
laissez faire to the welfare state. Law served as a catalytic agent to advance
human welfare, which Justice Holmes explained as follows :
✓,The life of the law has not been logic : it has been experience. The
felt necessities of time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the prejudices
which Judges share with their fellow-men, have had a good deal more to
do than syllogism in determining the rules by which men will be governed."
The function of law is that of social engineering1 and this perception has
been accepted by all the civilized countries of the world including India. The
1. Roscoe Pound : Social Control Through Law, (1968), p. 64.
THE NATURE OF LAW 205
concern of law as an instrument of enhancing economic and social justice has
widened to such an extent that there has been growth of a v~riety of laws
touching various facets of human life. A significant development in this process
has been that besides .the ·legislative enactments the laws made by the
executive in exercise of its delegated power to legislate have grown much more,
both in quantity and quality.
Since legislature enacts l~w on diverse subject for achieving the ends of .
social justice, complexity of laws ·may lead to ambiguity, therefore, legislature
itself gives discretion to the courts to give meaning to the law and develop it by ·
evolving new doctrines,! principles, 2 standards and norms. 3 Further, use of
phrases such as 'public order', 'just and equitable', 'reason to believe',
'reasonable cause', etc. by the Courts in the process of application of the law
may considerably help in removing the vagueness or ambiguity and infuse life
in the law.
Though law functions to regulate the conduct of men in society, its extent of
operation has to be restricted to some extent for ensuring certainty and stability
in the legal system. Having regard to history of development of law, it would
be seen that different approaches through doctrinal theories propagated by
jurists from time to time has been to project law as an instrument for balancing
the rights and duties of the subjects to exert social control. Some of these
theories are as follows :
Imperative Theory of ·Law
The main exponent of imperative theory of law was John Austin.
Therefore, this theory is also called the Austinian Theory of law. Austin seeks
to distinguish law by its formal criteria and not by contents. According to him,
"every positive law or every law simply and strictly so called, is set by a
sover~ign individual as a sovereign body of individuals to a person or person~ in
a State of subjection to its author." Thus, law is the command of the sovereign.
This in other words means that there can be no law without a sovereign and
therefore, existence of law re-assures existence of a sovereign.
I. Law as a Command
Austin holds that law is made up of general commands issued to the
subjects. This command is an expression of a wish by one person that anot~er
should do or forebear from specified act. The idea of command must necessanly
indicate the existence of sanction behind it.
A command to be a law, must be general and not particular. Thus, as
rightly pointed · out by Blackstone where a comman~ obliges pe~sons
J individually, it is not a law. Austin, therefore, holds a view that law is an
expression of a wish by the sovereign that the subjects shall do or forebear from
doing acts of a class as distinguished from a simple isolated act.
I. For example, Doctrine of eclipse, pith and substance, prospective overruling, etc.
2. Principle of res judicata, subrogation, marshalling, etc.
3. See Vishakha v. State of Rajasthan, AIR 1997 SC 3011; D.K. Basu v. State of West Bengal, AIR
1997 SC {;10 etc.
206 ·. JURISPRUDENCE AND LEGA~ THEORY
\
1
According. to Austin, law is a set of rules in a system . organised by .the
sovereign authority over a distinct territory under its hegemony. Laws proper
are commands enforced by a sovereign authority. They are commands issued by
political superior which are expression of his desire. It must ensure enforcem~nt
of obedience. Thus .for Austin, law is an important element in the repressive
machinery by which the State ensures obedience of i,ts subjects. The definition
of law as given by Austin excludes custom~ Austin asserted that law comm~ds
general obedience of it. This obedience may be out of respect, fear, habit or
wisdom.
Yet another~ distinguishing feature of law is sanction. Law is to be obeyed
by subjects whether they wish to obey it or not. The disobedience of law would
result into punishment which is the sanction behind law. Thus law as a
command is backed up by sanction.
In short; Austin's theory considers that law has a sovereign authority and
there cannot be a law without a sovereign authority. Secondly, law as ·a
command of sovereign must be accompanied by a sanction. Thirdly, command
should be general in nature and not a particular one.
Modern jurists have criticised Austin's command theory of law as being
inadequate and even misleading. It hardly .holds good in case of laws which
are merely declaratory or which repeal pre-existing .law. Similarly, the
theory has no application with reference to enabling statutes, laws conferring
franchisers, and laws of interpretation or procedure. 1
Criticism by Henry Maine
Sir Henry Maine, the main exponent of historical school has criticised
Austin's imperative theory of Law on two grounds. Firstly, law is not
invariably linked with sovereign. In early communities, rules which regulated
life were derived from immemorial usages and these rules were administered
by domestic tribunals in families or village communities. 2 Therefore, Austin's
insistence of sovereignty as an essential pre-requisite of law carries no weight.
Lord Bryce also agreed with this vie.w of Henry Maine. 3
Again, there are rules of customary law, international law and even
constitutional law in England which are habitually obeyed and yet they do not
fall within the Austinian definition of law. Therefore, Austin's view leaves it
doubtful whether International Law should be treated as law or not.
Salmond's Reply to Maine's Criticism.-Sir John Salmond in his counter-
reply to Maine's criticism argued that Austin's theory of law as it exists
applies to modern mature States. It does not concern itself with the early
societies. The rules referred to by Maine cannot be called law proper, they could
at the most be called the rules of positive morality and not of 'civil law'.
Salmond calls these rules as historical source from which law is developed and
they are not law themselves.
1. Frederic Harrison: Jurisprudence (1874) p. 684.
2. Henry Maine : Early History of Institutions, p. 382.
3. Bryce: Studies in History and Jurisprudence, Vol. 1, p. 182.
THE NATIJRE OF LAW 207
Thus Salmond's view clearly brings out the essential difference between
the analytical and historical school. The analytical positivism treats law as
an arbitrary creation of. the State whereas the. historical jurists believe th~t
law represents the unfolding of genius of people. The analytical school contends·
that "where there is State there is law", 1 the historical school, on the other·
hand, ·argues that "where there is society there .is law". 2 ·
Salmond's criticism Against Austin's Theory
Salmond agrees with Austin's view that law and State are indissolubly
interlinked but he considers Austin's theory one-sided and inadequate as it
ignores the ethical purpose of law. The imperative theory over-emphasises
the element of 'force' in the definition of law. Salmond says that all rules of
law are not imperative. He cites examples of procedural rules of law or rules of
interpretation of statutes which are permissive in character and only confer
privileges. Thus Salmond suggests that all commands of sovereign are not law.
It may, however, be pointed out that Austin himself conceded three
exceptions to his theory of imperative law, namely, declaratory decrees~ laws
relating to repeals and lc1ws of imperfect obligations, the first two he called
figurative law and the third one as 'positive morality'. But in his opinion, all
these were so closely connected with positive law that he preferr~d to bracket
them with it. 3
Salmond has criticised Austin for defining law in concrete form rather
than in abstract form. In other words, Austin's theory attempts to answer what
is a law whereas his inquiry should have been what the law" is. Salmond
11
attributes this error to the wrong method employed by Austin to arrive at his
definition of law.
Salmond further criticises Austin for ignoring purpose of law in his
definition of law. He points out that justice being the end of law, the term 'law'
should be defined with reference to the administration of justice. He observed,
"if the rules of law are from one point of view commands issued by the State to
its subjects, from another standpoint they appear as principles of right and
wrong so far as recognised and enforced by the State in the exercise of its
essential function of administering justice". For Salmond, ."law is not right alone
or might alone, but the perfect union of the two. It is Justice speaking to men by
the voice of the State". ·
It may be stated that Austin's definition of law holds good in case of a
monarchial police State but it certainly cannot be applied to modem democratic
States which are created for the welfare of the people. The real sanction
behind law is not the force of the State but the general will of the people to
obey the laws. To define law in terms of sanction is like defining health in
terms of hospital and diseases. Force may be all right against a few rebel but
1. Ubi civitas ibi lex.
2. Ubi societas ibi lex.
3. Austin : Jurisprudence, p. 214.

208 JURISPRUDENCE AND LEG1'-L THEORY
\\ ·
not against the whole society. If law is opposed': by all the people, no force on
earth can enforce it.
Again, sanction may be an ess~ntial element' of c~inal la~ _b:'-1t there is
nothing like sanction in case of civil la~. :"herefore, if .the definition_ o_f law
based on sanction as advocated by Austin 1s accepted, the whole of c1vtl law
will be excluded from the am'bit of positive law: . In this context Fredrick
Pollock has observed that, "law is enforced on account of its validity and it
does not become valid merely because it is enforced by the State".
The Austinian Imperative Theory of law has evoked criticism for it
ignored the following facts :
. it ass~es formulation of law is subsequent to administration of justice, which is
1. that law is enabling rather than restrictive;
2. that it is not the sanction alone which makes the law binding;
3. that Austin's definition ignores the role of custc,ms, usages and
international law in modem society;
4. that it completely ignores the social aspect of law; and
5. that it does not associate law with its essential elements of right
and justice.
Other writers notably, Fredric Harrison and Sir Paul Vinogradoff also
criticised Austin's definition of law for undue emphasis on imperative aspect of
law. Harrison pointed <:>ut that _Austin's definition of law hardly ~o~e~s
statutes conferring franchise; enabling and declaratory statutes and perm1ssib..e
legislation within its ambit. 1
Vinogradoff considered Austin's definition of law as one-sided because_ it
lays greater emphasis on enfor~eme~t- of asl:'ect of la': r~ther than its
recognition. Considered from this pomt of view,,. constitutional law and
international laws are not laws because they lack sanctions which can compel
their enforcement.
II. Laws are principles enforced by Courts (Neo-Austinian View)
Salmond regarded law as the practice of the court and propounded t~e
theory of legal realism. Like contemporary positiv_ists, he agreed_ t~at law 1s
an expression of the will of the State but as a realist he felt that it 1s not the
Parliament but the court which expounds law.
Salmond defined law as "the body of principles recognised and applied by
the State in the administration of justice". This definition dosely resembles
the definition of law as given by Prof. Gray who said, "~aw of the State or ?f
any organised body of men is composed of the rules wh1ch the court-that 1s,
the judicial organ of that body, lay down for the determination of legal rights
and duties". 2
As stated earlier, the greatest merit of Salmond's definition is that it
treats law as an instrument of justice and as such it has an ethical value.
l. Fredric Harrison: Jurisprudence & The Conflicts of Law, p. 47
2. Gray : The Nature and the Sources of Law, p. 82.
THE NATURE OF LAW 209
Criticism
Vinogradoff has criticised Salmond's definition of law on the ground that ·
Judges. or the_ courts apply and enforce the .law rather than defining it.
Accord~g to him, Sairr.tond's definition is confusing because "the direct purpose
for ~hich Judges act 1s, after all, the application of law. A definition of law
starting from their action would be somewhat like the definition of a motor-car
as a vehicle driven by a chauffeur". Therefore, to confuse the function of the
cou~ ~ith the def!-1'iti?n of law is grossly misleading. The definition of law,
that ~s _its f~rmulation, 1s much earlier stage that the stage of its enforcement or
~dmrmstrahon by court. In other words, there can be no application of law _until
it has been formulated. B1...t Salmond's definition seeks to reverse this order as
certainly not so. .
Another objection which is quite often raised against Salmond 's definition
is that it may bf' appropriate so far case-law is concerned, but it does not seem
appropriate in respect of statute law. The reason being that a statute law
becomes a law as soon as it is passed and brought on the statute book and does
not await a case to come to the court and receive judicial recognition. In fact,
s!atutes are recognised by law courts because they are law, they are not law
srmply by virtue of judicial recognition.
In reply to Vinogradoff's criticism, Salmond observes that the above
criticism is based upon a misconception of the essential nature of the
~d~inistrat~on of justice. Judges can decide cases in their discretion according to
JU~ti~e, eqmty and goods conscience and natural justice even without a pre-
existing law. It is in course of administration of justice that the corpus of law
takes shape and legal principles emanate from customs, statute, precedents etc.
Law consists of these authoritative principles and as it grows the discretion of
the Judge proportionately decreases. Salmond tl~·erefore, considers it more
appropriate to define the instrument of justice with reference to its end.
. !~stice Cordozo of United States has also criticised Salmond's and Gray's
def1mhon of law because they destroy the very nature of the thing which it
seeks to define. If a statute is not law because it may be misinterpreted, so is the
case with a judicial decision which can be overruled. I
Justice Holmes who was an American realist analysed Gray's definition
with meticulous logical conclusion. To quote his own words, "the prophecies of
what the courts will do in fact and nothing more pretentious are what I mean by
law". Thus in his view law only consists of those rules which the courts will
probably recognise and _ a~t upon and thus it would become a matter of prevalent
presumption. 2 He asserted that "the life of law has not been logic, but it has
been experience, the felt necessities of time, the prevelant moral and political
theories public policy ... in determining the rules by which men shall .be
governed. The law embodies the story of a nation's development through many
centuries.
1. Justice Cordozo: The Nature of the Judicial Process, p . 126.
2. Justice Oliver Holmes: Collected Papers, p. 172.
 210 JURISPRUDENCE AND LEG-{\L THEORY
\ - THE NATURE OF LAW
211
\
There is yet another deficiency in Salmond's definition of law. It is well- law which binds the State as la . .
known that quite a large number of law-suits never reach courts, therefore they theory of law. w proper, which was created due to Austin's
dl\ not have judicial recognition which is an essential attribute of law according
to Salmond. _2. Law need not be imperative.-L .k A . . . .
Last but not the least, Salmond's definition fails to take cognizance of sanction is a necessary element of l b t ~ ed ustm, Kelsen also thinks that
common man's notion of law. People act according t,o law as they understand it. of the sovereign Th aw u e oes not treat law as a 'command'
. ere are many laws such as l f .d
Therefore, more extensive practices of the common folk some of which may be procedure, limitation, etc., which could not b all d aw. o ev1 ence, law of
non-judicial and even non-legal which regulate human conduct ·may not come of the term but Kelsen has cleared thi ~ c e law m the Austiniari sense
within the purview of Salmond's conception of law. be necessarily impertive. · s confusion by asserting that law need not
In substance, it may be reiterated that Austin emphasises the legislative
3. Cusbmary law is also law strictu s -S. . .
source of law whereas Salmond's definition gives prominence to judicial sovereign it is not law accordin to A t':1',su. . mce custom 1s not created by
decisions· of the courts and the views expounded by both these jurists are not pure theory of law which treatsglegal us dm s theo~ of law. But applying his
wholly correct. brought custom within the definition of r:wer a~~ py~amid of _norms', Kelsen
·111. Law as a Norm of Action (Kelsen's Pure .Theory of Law) popular practice which finally generates intoa: I1~:a~=~ed1ate norm and a
Kelsen1 tried to modify Austin's theory of law by propounding his 'pure
theory of iaw'. 2 He regarded law as a norm of action _and jurisprudence as a 4. There is no dichotomy between .
propounders of positive school drew a d" lr1~ate band public law.-The
normative science as distinguished from a natural science. According to Kelsen, private law. They pointed out that the fo is mctton _etween _Public law and
of sovereign (or the State) towards th - ~~ deals ~1th the rights and duties
"State is a synonym for the legal order which is nothing but a 'pyramid of
norms'. He derives pure science of law from 'ought propositions' of juristic
science. He builds up his .pure theory of law on the hypothesis of the grundnorm
and duties of private persons inter-se. ~
denied to accept soverei nt
st 1ect% whde !he ~at_ter deals rights
. e sen re ted this distinction since he
· or basic norm. This grundnorm is not capable of being derived from principles of
pure science of law. It is an initial hypothesis and is incapable of logical proof.
automatically brought to a! e:d \~: the s;~te) ~s a distinct entity. This
and public law which was created by apnrelvati~ ml~ d~schotomy between private
Illustrating his hypothesis, Kelsen observed that for England, the grundnorm is , a y ca JUnsts.
"what the Crown in Parliament lays down as law". There is no norm above this. S. International law is a law in strict sens f
He contended that from the basic norm which he calls grundnorm, norm-making
power devolves upon a lower level, from which it flows to a still lower level
and· so on. Thus there is a hierachy of norms, the grundnorm being at the apex of
. not consider International law
morality', since the sovereign is no:~.
.1

creation. Kelsen regards internatio~:::se

e o the _terms ]aw.-Austin did
awIftut called I~ as a mere 'positive
o1;ll1d_ by this law which is his own
it. The entire hierachy of norm-making organs and the process of concretisation order otherwise called the State and th o~gam~ahon as superior to the legal
: of norms is called by Kelsen the 'legal order' of a particular State. 3 State. ere ore, its norms are binding upon the
Kelsen attempted to device a logically consistent theory which could be
uniformly acceptable to any legal system. He prefers to call his theory as 'pure Comperative Analysis of Austin's and Kel sens ' v·1ews
theory of law' since the lawness of a norm is not dependent upon meta-legal Despite contradictions betwee A ti • • ·
facts but upon its own speciality and relation to legal order itself. 4 It has Kelsen's Pure theory of law the tw n us n s. Imperative theory of law and
no~hing to do with social facts or higher principles of justice. accepted that he was un~ware ~re~em~le,d m many aspects. Kelsen himself
propounding his own ure th ustm s theory of law when he was
Kelsen's Pure Theory of Law is an improvement upon Austin's Imperative the Vienna School pro pounde~oi; ~flaw. It mu~t, however, be made clear that
theory in the following aspects : - legal philosophy on Justin's poJtiv:l:~~ ~d his supporte~s did not base their
1. There is no dualism between State and Law.-For Austin, law was common views on certain issues but th n d~gf~ Bodth, Austm and_ Kelsen, held
subordinate to the sovereign which is a personification of the State. Since law below- ey 1 iere on many points as stated
is the command of the sovereign, it cannot control the sovereign. But Kelsen
treats State as a unity of legal order, therefore, there is no dualism between 1. Both opposed natural law theor b ·d. . .
opposed natural law since it included }'.', . ut_ on ifferent gro~d~. Austin
State and law. Thus Kelsen has solved the problem of treating constitutional
Kelsen opposed it because of his d. f 7it~m it tt1,e element of JUshce while
1. Henry Kelsen was the Professor of Law at the University of Vienna in 1911. of 1811 which was predomin tl ~ssa ~s action abo'tit_the Austrian Civil Code
2. 50 LQR 474 & 51 LQR 517. an y ase on the natural law philosophy. .
3. Subbarao, G.C.V.: Jurisprudence & Legal Theory, (9th ed. Reprint 1991), p. 75. 2. Both, Austin and Kelsen recogn· d th d" . .
4. Kelsen : General Theory of Law & State, (20th Century Legal Philosphy Series}, p. 46. and as it ought to be. Austin ke t , ht ~se . e istmction between law as it is
p oug outside the purview of law because it
212 JURISPRUDENCE AND LEGAL THEORY
\
. lacks command of .the sovereign. Kelse:n separated natural scienc~ from law
because the former is based on the rules of c~use and effect which are not
applicable in case of law.
3. There was difference of opinion between Austin and Kelse~ about the
scope of jurisprudence. Kelsen's Pure theory ~f l~w was free from the influence of
time and place because of its universal apphcation. ,
4. Austin's theory is static· while that of Kelsen is dynamic.
s. Austin considers the existence of state or sovereign as a pre-c~ndi~on. for
the existence of law but Kelsen has refuted this dualis~ because m h1S view
law and State are one and the same.
6. Custom and international law are not treated ~s law by ~ustin but
Kelsen recognised them as laws. Kelse;n places international law higher than
the law of the State.
7. Austin's analytical approach lacks specificity while Kelsen has
developed his legal order as a pyrami~ of norms.
Criticism Against Kelsen's Pure Theory of Law
Kelsen's Pure theory of law has invoked criticism from many quarters. The
main among his critics are Dr. Allen, Friedmann and Lauterpacht.
According to Dr. Allen, coordinate sources like custom, statute and
precedent do not admit of arrangement in the heirarchical pattern of Kelsen.
But this criticism seems to be misconceived because these sources. are only
material sources of law and not formal sources which confer authonty of
upon a given norm. That authority is State which is the grundnorm for Kelsen.
Dr. Friedmann considers Kelsen's theory of law ~s ~a~e9:uate in the
modem context when law has to interact with other social ~isciplmes such as
sociology, economics, psychology and so on. Th~r~fore, there 1s greater thrust on
sociology of law rather than its ab~t£act propositions.
Lauterpacht who was a disciple of Kelse~, has ~?ticised Kelsen's t~eory
on the ground that it accepts the primacy of mtemation~l law ov,er natio~a!
law and thus permits natural law a back door entry. He ~pines thatJawness 0
International law cannot be derived from the grundnorm itself.
IV Marxist Theory of Law
~e Marxist Theory of law was propounded by Carl M~Eriedrich
Engels and is also called the Communist The?ry of Law. It has ~dergo~e
several changes ever since the Russian Revolution of 1917 and particularly m
the later half of twentieth century. The theory seeks to unfold a . . pattern of
evolution of law focusing on economic substractum of contents law. -· o!
to
accept indispensibility of law and foreshadows its eventual disappearance.
1. Allen C. K. : Law in the Milking, (5th Ed.) p. 49.
2. Dias R. M. W. : Jurisprudence (5th Ed., Indian Reprint, 1994) p. 395.
THE NATURE OF LAW 213
Carl Marx in his "Communist Manifesto" pointed out that the history of
all hitherto existing society is rtothing but the history of class struggle. The
social and economic development of society is essentially an outcome of class-
struggle between the dominant and the suppressed classes of the society. In
earlier stages it existed in the form of privileged class and the slaves which
subsequently changed into the class struggle between the feudal lords and the
serfs. With the evolution and development of. trade, commerce and industries
this class struggle transformed. into a clash of interest between the capitalists
and the working class, i.e., 'haves' and 'have nots'.
The materialistic ideology propounded by Karl Marx was essentially a
result of contemporary advances iR science and failure of religous ideals to meet
the new challenges of developing society. Marxist theory sought to improve the
conditions of poor and working class people which had deteriorated due to the
influence of Austin's positivism which upheld the unbriddled authority of
State regardless of justice or injustice. In result; positivism was disfavoured by
those who were dissatisfied with the existing conditions and regarded it as a
shield to cover up injustice by the economically dominant claim of society.
Thus, Marxist theory of law considers law as an instrument of suppression
its main function being to secure power relationships. It is essentially meant to
further the ends of economically dominant class of society at the expense of the
proletariate, i.e., the suppressed class.
Marxists interpreted law in economic perspective of social evolution
lar which led the foundation of Marxism in Soviet Russia which remained in vogue
until the Second World War (1939-45). Marxists strongly believed that
economic and material forces are dominant factors of society's development.
According to them, there was equal distribution of commodities in primitive
society but as the societies developed the greed and selfish ·interests perverted
the social structure and distribution became unequal resulting in split of society
into rich and poor, which they termed as capitalists and labour class (workers).
In consequence, men became self-centred with no thought of common weal.1 As
the time advanced, the tribal society was replaced by the State in which the
richer or stronger class dominated and held control over the economic resources
of the country. They used law as an instrument to exploit the working class: The
conflict between haves and have-nots (capitalists and working . class)
eventually led to revolt of majority labour class which gained control over the
economic resources and the State so established came to be known as proletarian
dictatorship. 2
Marxist theory of law ,was primarily based on the following propositions :
1. Law is essentially one form of politics and the two are inseparable.
refuseJ The capitalist used law as a means whereby they could preserve
and increase their power.
1. Engels: The Origin of the Family, Private Property and the State.
2. Dictatorship of Proletariate envisages a classless society wherein domination of a particular
class would cease and inequality will vanish.

214 JURISPRUDENCE AND LEGAL THEORY
\I
2. Law and State are closely related but law exhibits relative
autonomy from the State. The State is bound to wither away with
the emergence of classless society and -.there would no longer be any
scope for domination or inequality in economic terms.
3. Law in its legal form replicates the prevailing economic relations.
4. Law has in it a,, coercive element and manifests the State's
monopoly of the means of coercion by the dominant capitalist class.
5. The contents and procedure of law reflect the interest of dominant
class or the power-block leading to exploitation of the workers
(labour).
6. Law is ideological and provides legitimation for the inherent
values of the dominant class. Carl Marx believed that law is an
instrument of domination and exploitation wielded by capitaHsts
against workers.
Carl Marx believed that State and law temporary phenomena and they
are bound to wither away sooner or later because with the abolition of classes,
the power of the State would disappear.
With the disappearance of State and law, its typical manifestations
including bureaucracy and judiciary will also disappear. Marx further stated
that withering away of 'dictatorship of proletriat' will be a step towards the
formation of a classless society.
Marxist legal philosophy was later developed by Lenin who
contemplated weakening authority of the State with the evolution of
dictatorship of the proletariate in which distribution of commodities would be
according to the maxim "from each according to his ability, to each according to
_,.!1.is needs".
Lenin, in his work entitled Law and Revolution (1917), limits the
possibility, of the 'withering away' of law and State to the socialist State.
According to him, there will be need of law and State to eliminate the
reactionary forces in society during the transition period of the proletarian
dictatorship. He firmly believed that revaluation alone can put an end to the
bourgeois State machinery, which .must be destroyed because it seeks to
alienate power from the masses. · occasionally to prevent anticipated illegality or to effect restitution. It is a
Karl Renner (1870-1950)
Karl Renner was a Austrian politician of the Social Democratic Party of
Austria. Taking inspiration from the writings of Carl Marx and Lenin, he
formulated his theory of law, 1 which was based on economic foundation. He
believed that all economic institutions are at the same time institutions of law.
He was against ownership of private property, which the law protects.
Supporting Lenin's view, he pointed out that "private property is robbery and a
State based on private property is a state of robbers, who fight to share in the
1. £',.arl Renner: the Institutions of Private Law and their social functions (1949).
THE NATURE OF LAW 215
spoils". 1 He therefore, suggested that ownership of the means of production
should be public, which in other words, meant nationalization of the means of
production and only the ownership of the consumer go(?ds· should be open to
private individuals.
Evgeny Pashukanis (1891-1937)
Evgeny Pashukanis was a leading exponent of Marxist theory of law. He
lived at the time when there was chaos and· disorder in Russia consequent to
Bolshevic Revolution of 1917. The administration of justice was completely
paralyzed due to functioning of ad hoc tribunals, the so called People's Courts.
It was during this period that Pashukanis wrote General Theory of law
and Marxism which was published in 1924 to meet the political end of
Bolshevism.
The main contribution of Pashukanis to the development of Maxist
conception of law lies in the fact that he propounded his theory of Commodity
Exchange, which pre-supposes that law is mere reflection of capitalism and
therefore, an instrument of oppression by capitalists. He asserted that
individual rights and legal relationship arise out of commodity Exchange.
Capitalists are producers of commodities and all laws are directed towards
exchange of commodities so produced. As the exchange develops, it gives rise to
disputes and law has to be used to settle these disputes arising out of conflict of
interests.
However, the marxist views about law and State have radically changed
in the preceding three or four decades with the emergence of socialism and
democracy in Soviet Union (now Russia). With this change, the power and
authority of the State and law has considerably increased and theory of their
withering away now stands completely discarded. The Maxist dogma that
State and class-conflict are synonymous, no longer holds good in the present set
up of communist regime.
Legal Sanctions
The legal definition of 'law' as suggested by various authorities bears one
thing in common, that is, where the human acts are contrary to the course
prescribed by law, the State will intervene which is jurisprudentialy, called as
'sanction of law'. The sanction may be in the form of punishment and
punishment to a wrongdoer, or to one who neglects to comply with prescribed
course of conduct or procedure.
The term 'sanction' is derived from the Roman word sanctio which means
that part of the statute which imposes a penalty or has made some other
provision for its enforcement. In general parlance 'sanction' means penalty.
Salmond defined sanction as an instrument of coercion by which any
system of imperative law is enforced. The State uses its physical force as a
1. Lenin : Thirty-one collected works (3rd Ed.) p. 300.
216 JURISPRUDENCE AND LEGAL THEORY THE NATURE OF LAW 217
\ .
I
sanction for the administration of justice. Shriilarly, censure, ridicule and Besides, there is also sanction of nullity which is a civil sanction
contempt are sanctions by which society enforces the rules of positive morality. pertaining to rules of evidence and procedure. It consists of refusal by court to
help a party which has disregarded the law. A document which requires to be
Jethro Brown and Bentham asserted that ~anction also includes the registered will not be given effect if it is not so registered.
element of reward, benefit or pleasure because a reward offered for an act or
forbearance induces a person to act or forbear and has similar effect as the fear Thus it .would be seen that all punishments are necessarily sanctions but
of penalty. But Austin firmly believed that "it is only by conditional evil that the converse is not true since there are certain civil sanctions as well.
duties are sanctioned or enforced". It is the power and the purpose of inflicting Legal thinkers are not unanimous on the point whether sanction is an
eventual evil and not the power and purpose of imparting eventual good which essential element of law. The majority of them, however, believe that sanction
gives to an expression of will the name of command. is indispensible element of law. Austin also supports this view. Ihering
Hibbert also held that it is only the evil and not the reward which contends that, "a law without sanction is like a fire that does not burn and light
constitutes a sanction. He put forward two main objections to bracketing reward that does not glow".
with sanction. Firstly, no one is under a duty to earn a reward and those who do There are others who do not consider sanction absolutely necessary for
not care to earn reward, do not suffer any evil. law. They contend that though sanction is generally present in every law but it
According to Frederick Pollock, sanction in modern sense means constant is not an essential element for every legal rule. They further argue that force is
readiness of the State to use its force for ensuring justice to be done to both, for not the only thing which induces people to obey law. Habit of obedience, sense
law abiding persons as also to the evil-doers. of duty, social necessity, etc. may also provide sufficient incentive for the
people to obey law. If whole of society decides to disobey the law, no amount of
Sanction has to' be distinguished from punishment, the former being a force of sanction, can enforce it. This exposes the futility of sanction as an
genus of which the later is only a specie. Sanction connotes the application of essential element ._ of law. Some writers believe that presence of sanction
· physical force of the State for enforcement of law. Punishment is the evil indicates the underdeveloped stage of society and as it develops, sanction goes
inflicted upon a wrongdoer. Thus the term sanction has much wider connotation on losing its importance gradually.
than the term punishment. There are many other 'sanctions' than punishment,
namely, censure, contempt, compensation in civil cases, etc. Sanction is a Expressing his views regarding sanction, Miller writes, "the machinery of
conditional evil to be incurred for disobedience of law. law may include a sanction or artificial motive but in all societies .the laws
imposed or recognised are enforced and obeyed without an artificial sanction
Kinds of Legal Sanctions because if men are to live they must act in some way, and in society it is
Hibbert has classified legal sanctions under two broad heads, namely~ generally found that the path of law is the path of least resistence."
(i) Criminal sanctions, and (ii) Civil sanctions. There are different kinds of
Territorial Enforcement of Law
both these sanctions. They may be broadly classified as follows-
Law is territorial in the sense that its operation itself is territorial. ·
Legal Sanctions Generally, the laws made by the State apply to persons, things and events
I which are within its jurisdiction. In other words, the enforcement of law is
confined to the territorial boundaries of the State enforcing it. The land laws
and the law of marriage, divorce, succession and domicile applies only to those
Criminal Civil persons who by residence, domicile or otherwise are, sufficiently connected
1. Capital Punishment 1. Damages Liquidated within the territory of the enforcing State.
Unliquidated However, there may be cases when there is extra-territorial operation of
2. Costs law. Extra-territorial operation of law means that it also operates outside the
2. Imprisonment
.limits of the territory of the State which enacted it. Thus the Indian Penal
3. Corporal Punishment 3. Restitution of property Code and the Code of Criminal Procedure have extra-territorial operation as
4. Fine 4. Specific performance they empower the Indian courts to try offences committed outside India1 on
5. Deprivation of civil or political right 5. Injunctions Prohibitory land and on high-seas in exercise of the admirality jurisdiction which is based
on the principle that a ship on high-sea is a floating island belonging .to the
Mandatory
6. Forfeiture of property 1. Savarkar's case. He was extradited from France and tried in Nasik; see also Mobarik Ali
Ahmed v. State of Bombay, AIR 1957 SC 857. It may be noted that extradition is not practised
7
:.. -portation. in civil cases.

218 JURISPRUDENCE AND LEGAL THEORY
\ and liberty". For Kant, the aim of law is the adjustment of one's freedo~ to
nation whos.e flag it flies. Generally speaking,\ the offences of piracy and
treason, murder or bigamy committed by British subjects in any part of the
world will have extra-territorial operation and shall be dealt with by the
English courts. That is to say, English law would apply even though the offence
be committed on foreign land or sea. To take another illustration, Turkey
applies its own criminal law to the foreigners if the victim be its own subject
and accused be found within its jurisdiction. Here nexus is not the offence or the
accused person but the victim being its own citizen. Italian law favours the law
of owner's nationality in · cases of succession on death. Even English courts
sometime apply English rules of equity to lands situated abroad. Again,
English law of torts is applied in cases brought before English courts for
damages for negligence or wrongful injury committed abroad provided that act
is wrongful, not necessarily tortuous, according to the law of the land where it is
committed. In case of applicability of procedural law, it is the forum before
which the case is instituted and not .the country of the litigant or the place
where the offence took place.
Therefore, looked from the point of view of the court of the State whose
law is in question, territoriality is a matter of self-limitation and, therefore,
not uniform. Some may limit extra-terrih.Jriality rigidly while others may not.
From the point of view of another State, it is again a question of its own
principles of conflict of laws as to how far it can go in granting recognition to the
laws of another State. This again, shall vary from State to State. An Indian
law which is-not given extra-territoriality would bind the courts of law in
India, unless the law itself is declared unconstitutional or invalid. However,
neither a judgment delivered in pursuance of such law, nor even the law itself
may be regarded as valid by the foreign courts or International tribunals. Ih
conclusion, it may be stated that each system of courts primarily applies its
own system of laws though, in the area of conflict of laws, such an application
may lead ultimately to a foreign system of_law.
The existence of extra-territorial laws and conflict of laws indicates that
territorial application of law is not an essential element of law. Indeed, as
rightly suggested by Salmond, law will be found to be that of a particular court
rather than that of a particular State. 1 • in case of certain laws, notably, the law of contract or pro~erty • Un~formity and
Purpose and Function of law
Jurists have expressed different views about the purpose and function of
law. It is well known that law is dynamic concept which keeps on changing
with time and place. It must change with changes in the society. Law, in the
modem sense, is considered not as an end in itself; but it is a means to an end. The
end is securing of social justice. Almost all theorists agree that law is an
instrument of securing justice. As Salmond rightly pointe4 out, "law is a body of
principles recognised and applied by the State in the administration of justice".
Even Hobbes and Locke recognised the positive role of law when they said that
"the _end of law is not to abolish or restrain but to preserve <?r enlarge freedom
1. Salmond : Jurisprudence, p. 82.
THE NATURE OF LAW- . 219
those of other members of the community. Benth~m _gave ~ v_ery_ practical
version of the purpose of law which according to him 1s max~misation of the
happiness of the greatest number of the members of the community•
According to Holland, the function of iaw is to ensure well being ~f the
society. Thus it is something more than an institution for the protection of
individuals rights.
Roscoe Pound attributed four major functions_ to. law, namely,
(1) maintenance of law and order in socie~ ; . (:) to mamtam status_ quo m
society; (3) to ensure maximum freedom of md1v1duals; _and (4~ to ~ahsfy the
basic needs of the people. He treats law as a species of social engmeermg.
.(
The Realists' view about the purpose and function of the· law is that _for
the pursuit of highest good of the individuals and society,. some controll~ng
power and agency is needed. Law is such power and the state 1s such controlhng
agency.
Of all these views, Salmond's opinion regarding functi_on ?flaw _a~pe~rs
to be more sound and logical. The object of law is to ens~.ire. 1ust1ce. This JUSh~e
may either be distributive or corrective. Distributive justice seeks to ensure ~air
distribution of social benefits and burden among the members of the c~mmumty.
Corrective justice on the other hand, seeks to remedy the wrong. Thus if ~ person
wrongfully takes possession of anot~er's pro_Per!y, !he court shall ~hr~ct the
former to restore it to the latter. This 1s corrective Justice. Rule of law is ~me qua
non for even-handed dispensation of justice. It implies that every one is_ equal
before law and law extends equal protection to everyone. Judges_ should impart
justice without fear or favour and like cases should be treated ahke.
It must, however, be stated that justice alone is not the on!y goal of law.
The notion of law represents a basic conflict between _t~~ d1ffer~nt n~ed~,
namely, the need for uniformity and the -~eed for ~exibihty. Umformit_y is
needed to provide certainty and predictability. That 1s, where laws are fi:'ed
and generalised, the citizen can plan his activities "':it~ a measure of certainty
and predict the legal consequence of his conduct. This is all . t_he mo_re ne~essary
certainty of rules of law also brings stability and security m the social order.
Flexibility provides some measure of discretion in law t_o make it
adaptable to social conditions. If law is rigid and unalterable, it may not
respond to changes spontaneously which may lead to :esent~ent and
dissatisfaction among the subjects and may even re~u!t n~to violence or
revolution. Therefore, some amount of flexibility in law 1s inevitable.
Law as an instrument of social change : .
The purpose and function of law is to regulate social interests, arbitrate
conflicting claims and ensure security of persons and prope_rty of peopl~.
15
Protection of people against criminals by imposition of appr?pnate sent~nc~
an essential attribute of an orderly society which can be possible by an ef ective

220 JURISPRUDENCE AND LEGAL TIIEORY
. . 1 1_aw and_ procedure. The law should subs. \ e rve social purpose and for
cnm~~
tha~ it is rmperabve that the Judges administering l_aw must be endowed with
legislator's. wisdom, historian's insight for search"1g truth, prophet's vision
~nd capacity to respond to the needs of the time. Law must serve as an ·
instrument of o_rderin~ the life ?f the_ people by "expanding their rights and
freedoms and d1smanthng of the inequitable social order" .1
If the !aw
is to ~lay its ~ole of serving the need~ of the society, it must
reflect the ideas and ideologies of that society. As the society changes la
also c~nnot remain immutable. It must, therefore, march in tune with ti:
changmg_ norms of the society. 2 Supporting this view, Mr. Justice P.N.
Bhag~ah (as he then was) in National Textiles Workers Union v. p
Ramkrzshnan 3 observed : · to Information Act, 2005, Protection of Human Rights Act, 1993, Information
"Law cannot stand still. It must. change with the changing social
concepts and va_lues. If the bark that protects the tree fails to grow and
exp~d a~ong with ·the tree, it will either choke the tree or if it is a living
tree, it w1~l shed that bark and grow a living bark for itself. Similarly, if
th_e law fads to respond to the needs of changing society, then eitherit will
s~fle the growth ~f t1:e society and choke its progress, or if the society is
vigorous enough, it will cast away the law, which stands in its growth. The
law ~ust, th~refore, constantly be on the move adapting itself, to the fast
changing society and not lag behind" .
The law regula_tes the social interests, arbitrates conflicting claims and
seeks ~o ensure ~ec:unty of p~r~ons and their property~ Protection of society and
stampmg_out criminal prochv1ty must be the object of law. The law should sub-
serve social purpose by seeking the establishment of an egalitarian social order
so as. to. ensure socio-economic and political justice as envisaged by the
Constitution of India.
· . Law a~ ~n instrument of social change, has to keep pace with the changing
norms ?f soCiety. It must respond to the needs of the present and resilience to
cope with _the demands of the future. Judges resort to purposive interpretation of
law to articulate the felt necessities of the time. ·
The laws to be adopted in a changing society must reflect the aspirations
?f the people and s~ould manifest equity, fair play and justice. The government
m ~o~er sh~uld nse above the nexus of vested interests and nepotism by
avmdmg arbitrary and capricious actions and laws. The law must operate to
subserve the common good. · reliable than the individual judgments of the courts.
TJ:te functior:iing '?f la_w in a changing society may be well illustrated by
the soc10~ec_onomic le_g1sl_ahve enactments during the post Indian independence
era: Jushffmg conshtuhonal amendments relating to right to property, the
Chief Justice of India Chandrachud (as he then was) rightly commented that
I. State of Karnataka v. Appa Balu, (1995) Supp. 4 sec 469.
2 . Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly AIR 1986 SC 1571
3. (1983) 1 sec 228. ' ·
THE NATURE OF LAW 221
constitutional precedents cannot be permitted to be transferred into weapons of
defeating the hopes and. aspiration of millions of people ..... These hopes and
aspirations representing the will of the people can only become articulate
through the voice of their elected representatives. If they fail the people, the
nation must face the death and destruction.1 .
Besides the Constitution which provides an endurhlg paramount law
setting out the power of the state and rights and duties of the citizens to serve
the society, some social enactments of considerable importance have been
enacted over the years. Some of them are-Dowry Prohibition Act, PNDT Act
(Prohibiting Pre-Natal Determination of Sex Act);. Juvenile Justice (Care and
Protection of Children) Act, 2000, Prevention of Women's Domestic Violence
Act, 2005, Bonded Labour Abolition Act, 1976, Civil RightsAct, 1955, The Right
Technology Act, 2000,2 etc. have been enacted to meet the changing needs of the
society. The cyber law also needs to be restated to meet the challenges of up-
coming cyber crimes which not only affect individuals but have an adverse
effect on the national economy as a whole.
Advantages And Disadvantages of Law
As already stated, law is a dynarr.ic concept. It is a potential instrument of
bringing about desired social change in the society. Its advantages are many but
there are certain disadvantages as well.
Advantages
The main advantages of law as the fixed principles of rules for
administration of justice are as follows :
1. It provides uniformity and certainty to the justice system. It is
applicable to all alike.
2. Law as fixed principles of justice, avoids the danger of arbitrary and
biased decision. It reasonably limits the discretion of the Judge and thus
eliminates the chances of bias or improper motives affecting the parties
adversely.
3. It provides adequate safeguards against error of judgment. Commenting
on this aspect of law, the Greek philosopher Aristotle observed,_ "to s~ek t? ~e
wiser than the law is the very thing which is by good laws forbidden. Tins m
other words means that "law is not always necessarily wise, but on the whole
and in the long run, it is wiser than those who administer it".
4. Yet another advantage of law is its reliability. It is certainly more
Disadvantages
Despite the above advantages of law as the · fixed principles of rules, it
also has certain disadvantages. They are as follows :
1. Kesvanand Bharti v. State of Kera/a, and others, AIR 1973 SC 1461.
2. These laws are illustrative and not a exhaustive. Presently there is a law on almost every
aspect of human life.
 222
JURISPRUDENCE AND LEGAL 1HEORY TI-IE NATURE OF LAW 223
· 1. Because of the rigidity of law, it is unab\e t · k •
cha_nging society. There is always a gap betwe~n oth:efd~ace with the fast given an action at law to or against a person who did not really come within the

:::~:.~'!,/!':J:'!;~~~!~m prevailing in it. .This S?metimes':.C:.'::~~:J.~7; class to or against which the old action was confined.' The doctrine of
constructive notice or constructive possession are the illustrations of historical
fiction.
2. Law is conservative in its approach. The Bar and th B h -
Dogmatic fictions, according to lliring, do not add new law under the cover
genera~ly conservative in their approach to dispensation of J·ustic: ~~c. aret
conduove to a progressive community. , . is is no of old, as the historical fictions do. · They only arrange recognised and
established doctrines in the more convenient way. For example, idols and
form ~f~ewlarwathseurHtehranSrfr~tm e.~cessive formalism. Greater emphasis is laid on corporations have their personalities due to dogmatic fictions.
t s -::1t>stance Undue f
delay in dispensation of just _-··- .
r
orma ism causes unnecessary The Supreme Court, in State of Andhra Pradesh v .. K. V. L. Narsimha
Rao, 1 had the opportunity to-~xplain the meaning of the term 'legal fiction'
k 4._ ~aw is generally complex in nature rather than being simple This when it was observed :
ma es It eyond reach of a man of ordinary understand.mg. - ·
Commenting on the merits a d d
its benefits are great, the evil too :re :::::1r
·t f 1
B:~h;;lm~~d obs~rvei that if
denied that law serves as an effective instrume~t of socia~sch~;' it cannot be
"Legal fiction is one which is not actual reality and which can be
recognised and the courts accepts as reality. Therefore, in case of legal
fiction the court believes something to exist which in reality does not
exist. It is nothing but a presumption of existence of state of affairs
Legal Fictions and Presumptions : which in actuality is non-existent. The effect of such legal fiction is
shap!;gt~e ~~:i~7:-He;egaMIfi~tions olr_ficdtio juris play a significant role in ~hat a position which otherwise we could not obtain is deemed to
. _ · ry ame exp ame legal fiction as " · obtain under the _c ircumstances."
which conceals or tends to conceal the fact that the rule of law a::yd
ass~mphon
The process evolved for giving such a notional or deemed effect, is called
any alteration, its letter remainin h . a un ergone
modified" F 1 .i g unc anged but its operation being legal fiction. In other words, legal fiction implies a deeming provision which is
fiction or~ l~r ~xamp e, a ch1!d can be adopted from one family into other b "an admission of the non-existence of the fact deemed and, therefore, the courts
In Hindu law ~1:~1~0:~~ is' clothet :ith legal p~rsonality by legal fictio:. must assume that such a state of affairs exist as real, and should imagine as
fiction. er s worn ecomes entitled to family property by real the consequences and incidents which inevitably flow therefrom and give
effect to the same". 2 The concept of notional promotion in service matters is a
common illustration of legal fiction. The normal consequence of such notional
perio:i:~:: ~~~:~:e;~g::~c:;: :!:/:ea source of law _a_s early as Roman
promotion is that the official shall be deemed to be promoted with effect from
the purpose of extendm·g R 1 h ated as Roman citizens by fiction for
oman aw tot em. the deemed date and will be entitled to that higher pay- scale, grade and
seniority etc. from that date. 3
Sir Henry Maine pointed out that fiction 1 d
shaping law in earlier times but today with the
amendments in law, fiction has lost its value
~:y; .
t· a dofm~nant role in
o u I~n o t e_ system of
Legal Presumptions.-A legal presumption, on the other hand, is a rule of
law by which Courts and Judges draw a particular inference unless and until the
does not subscribe to this view d b 1· h
H~:W~ver, Sir Frederick Pollock truth of that inference is disproved. In other words, one fact is recognised by
even today. The concepts of conas~ruc:~:\es t at Ichons are _important ~or law law as sufficient proof of another fact, whether it is in truth sufficient for the
modern illustrations of legal f t· A lrus\ a;d _con~truchve possess10n are
contrary to truth though possibl1; ::~;ct
The common e I Of I . . . '
r:fle f~cht~n isd thus an assu1:1pt~on
r e a vancernent of Justice.
purpose or not.
Presumption may be either of law or of facts. The presumption of law uay
k xamp e egal fiction 1s the prevailing dictum that th · d d be (1) conclusive, or (2) rebuttable. A conclusive presumption constrains the
not ma e laws, they merely expound and interpret it. e JU ges o courts to infer the existence of one fact from the existence of another, even
though that inference could be proved to be false. In other words, the law
(2) d~;~~tfc. classified fictions into two classes-(i) historical, and
prohibits leading evidence to the contrary. Thus the presumption that a child
under the age of seven years is doli incapex that is, incapable of committing an
Historical fictions are th d • f d .
changing the -form of the e ~vices ~r. a dmg new law to old without
1. (1994) 4 sec 181.
largely in the domain of prolddlaw, sudch fic~101:-s have their field of operation
. - oce ure an consist m pretendi th t 2. G. Vishwanathan v. Hon 'ble Speaker, Tamil Nadu Legislative Assembly, Madras, AIR 1996 SC
th mg was other than that wh· h h . . ng a a person or a 1060.
IC e or it was m truth for the purpose, thereby 3. Gajraj Singh v. State Transport Appellate Tribunal, AIR 1997 SC 412; see also Nak Shyam Sanshari
& others v. State of U.P., AIR 1989 SC 214.
 224 JURISPRUDENCE AND LEGAL THEORY
offence under Se~tion 82, LP.C. or a child bo~p during the continuance of
marriage within 280 days after its dissolution is ·cons~dered to be iegitimate,1
are conclusive presumptions of law though it · may be false in particular
instances. The conclusive presumption is called _presumption juris et de jure and
it is irrebuttable.
A rebuttable presumption is one where the law requires the court to draw
'~ ~ ~ference even though there is no sufficient evidence to support it. If evidence
1s _g iven to contradict such an evidence, it is bonnd to be rejected. For example, a
person who has not been heard of for seven years or more is presumed to be dead2
?r an a~cused is presumed to be innocent unless his guilt is proved, are
Illustrations of rebuttable evidence and contrary evidence may be given to
disprove this evidence. · -,
Section 113A of the Indian Evidence Act contains presumption as to
abetment of suicide by a married woman. It says that when the question is
whether the suicide by a married woman had been abetted by her husband or
any relative of her husband and it is shown that she had committed suicide
within a period of seven years from the date of her marriage and that her
husband or such relative subjected her to cruelty (Sec. 498A, IPC), the Court
may presume, having regard to other circumstances of the case that such suicide
had been abetted by her husband or by such relative of her husband.
Similarly, in cases involving prosecution for rape of a woman, where
sexual intercourse by the accused is proved, the Court shall presume that she
did not consent, that is there is absence of consent on the part of woman who was
raped. 3
The presumptions embodied in Sections 113A and 114A of the Evidence Act
are rebuttable and evidence may be given to the contrary.
A fiction is distinguished from presumption by the fact that in the former
the falsehood of the fact assumed is understood and avowed while in the latter
the inference drawn may or may not be true. Thus ,;in what is certainly false we
have fiction, in what is not certainly true we have presumption". . should be awarded to the accused is a question of law. Again, in case of death of
Questions of Law and Fact
The determination of cases by the court involves enquiry and consideration
of various questions that arise in the suit or trial. These questions may be of two
kinds, namely, question of law and/or questions of fact.
Question of Law
The expression question of law is used in three different senses. Firstly, in
its largest sense it is used to indicate that there are already well established
rules on the matter and court is bound to follow them. That is, the court has
little dfocretion over such matters. The matter before the court is either covered
by law which has already been decided by the court in earlier cases. For
1. Section 112, Evidence Act.
2. Tolson 's case, (1889) 23 QBD 168.
3. Sections 113A and 114A Inserted in the Indian Evidence Aci: by the Criminal Law
(Amendment) Act, 1983.
THE NATURE OF LAW z2s
example, in a case if the accused is a child under seven years, the court has to
coine to the conclusion that the child has not committed the offence of which he
has been charged because of the provision of Section 82, I.P.C. This is therefore,
a question of law. But if the accused is a child above 7 years but below 12 years,
then the court has to see (as per Section 83, -1.P.C.) whether the accused has
sufficient mental capacity to commit the offence of which he is charged and
this is a question of fact.
In the second sense, it is a question of law to consider as. to what the law is
when there is no statutory enactment or law on a particular matter and there is
no authoritative ruling and the court has to decide it for the first time, it is a
question of law. The court has to determine what, in its own judgment, is the
true meaning of the words used by legislature. Thus in Mahendra Nath Pathak
v. State of Assam & others,1 the question whether "sand" could be treated
'forest produce' under Section 3 (4) of the Assam Forest Regulations, was a
question of law as there was no earlier ruling on this point.
In the third sense, questions of law are those which are left for decision by
the Judges while questions of fact are for jury to decide: It is true that the
questions of law are never referred to the jury, but question of fact can be referred
to a Judge. Thus interpretation of c1. particul~r document is a question of fact but
quite often it is done by the Judge himself. Again, the question of reasonable and
a
probable cause for prosecution in suit for malicious prosecution is. decided by a
Judge although it is a question of fact.
Questions of Fact
In a general sense, . the questions which are not the questions of law a.re
questions of fact. Salmond holds that a question of fact is one which is not pre-
determined by the rule of law, or any question which except the .questio~ as to
what the law is or any question which is to be answered by the Jury. Evidence
can be led to prove or disprove a question of fact. Thus whether a theft ~as been
committed _or not is a question of fact whereas a question as to what punishment
a patient under operation, the question whether the operating surgeon was
negligent or not is a question of fact.
Mixed Questions of ·Law and Fact
The courts are quite often required to decide questions which are, by
nature, mixed questions of law and fact. Thus for example, ~hether a
partnership actually exists among certain partners or not, is a question o_f fact
but whether the agreement of partnership entered into by them cons~1tutes
relationship as partners is a question of law and not of fact. Thus a dispute
relating to partnership shall invoke a mixed question of law ann fact.
The Supreme Court of India in Ramesh B. Desai and oth~rs v. Bipin
Vadilal Mehta and others2 held that plea of limitation under Section 3 of the
1. AIR 1970 Assam 32.
2. AIR 2006 SC 3672.
Z26 JURISPRUDENCE AND LEGAL THEORY THE NATURE OF LAW 227-

Limitation Act (36 of 1963) is a mixed question df

fact and law because it cannot ~g~::. }:7or m,st~~/ ~h~re the :g irl-abducted was re~y under the legal..~ge of
be decide<;! as an abstract principle of law divorced from facts as in every case ., ~ons~}though. fue_~ccu.s.ed_ on very reasonable grounds took her .to be of above
the starting point of limitation has · to be ascertained which is entirely a that age, ;1e 'Yas· . ~ey~ftheles~ held criminally liable for . the offence of
questioll of _fact. _ · ' ·_ abduction. · · · ·
The Code of Civil Procedure, 1908 (5 of 1908) confers no jurisdiction _upon ·
1
·.: : ~ .;Jin,gel)cy, -~i".
iti~:-~e.-. that ignorartce of fact. may be excusable, but of
the Co1,1rt to try a
suit involving a mixed question of law and fact as a .law not ·excusable/is _µtodified by an exception when the results _may follow
preliminary issue under Order 14, Rule 2 of the Code.' : :~fro~ · ads ".Withdut· bemg ·irttended :and the person acting .hacl n,o mei:ll\S of
fore~~~in~ th~m. Such _.a ct ::are.' ascribe~ as..I chance',~ and n~ .re~ponsi~i~ity
Transformation of Question of fact into a
Question of Law attaclies _
m·,respect of them~ Thus:no one 1S held responsible for..ll\Jtmes resulting
There are occasions when a question of fact in a case transforms into a from unavoidable acciQertt,:;whilst_.engaged in~ lawful act~2
question of law consequent to judicial decision which becomes a precedent for
subsequent cases of similar nature. This can be illustrated by an example. In
India, during the Presidential election in 1974, a question arose whether □□□
dissolution of one or more State Legislanµ-es would result into postponement of
Presidential election till all the ·State Legislature are functioning. 1 This
question hadnever arisen earlier, so it was referred to the Supreme Court for
advice under Artide 143 of the Constitution. Answering in the affirmative, the
Supreme Court observed that suspension or dissolution of a State Legislature
shall not ci,dversely affect the Presidential election process . .Thus this question
of fact w~s transformed into a question of law consequent to the decision of the
Supre,Ille ~-<>unin 1974. Now it is a binding precedent f01: ,sim~lar situations . : ,•. · ·

arising 41 N.hl!~- . .
:I.he ~ax'im : Iw,~ranti~ Juris non excusat, ignorantia Iad't excusat
.· Jurisprudence is <;:oncerned with_outward acts of.manl<i..lld._All ast _for the
purpose ·of:.law may ·be _def:i~ed as 'a deterqili.;lation of will~
prodii.~ing' ·an effect
in the sensible world. The effect, when negative, mc,1kes the act _turned into
forbearance. Thus, there are three essential elements of such an ad,ii.ainely,_(1)
exerting. of will, (2) an a:ccompan.ying State of consciousness, and (3) a
manifestation of will.
A distinction is usually drawn between ignorance of law and of fact. An act
is excusable when done in ignorance ofa State of facts, but the consequenres
following ari. act done in ignorance of law of the land is not excusable.
The maxim lit~rally means that ignor~ceor mistake 'of Iaw ;'does not
furnish an excuse and therefore, wheneve:r, anyone is held accountable for
breaking a law he cannot plead that he-did 'ribfknowthat .what -h(}".did was
contrary folaw or he had mistaken the law;, In other -words, ignorance or
mistake of law cannot be. an excus~ f~r exemption from liability. 2 Bµt ignorance
or mistake ~f fact canbe a valid ·exajse f<>.t:~emption &:opt _crjmiIJal)i~J,ility in
certain cases but it ·cari be no excuse again~t:ciyiLlia,bHrty:3 , .H9.we,/er, if the
· criminal act is wrong and expressly prqJ::ribited irre's pective of ~e 'fact that it is
mistaken, the ...mistake
· ·, .... ·-
wilf•r iot avail :~s·
:·:J
a ··. c.ti~erice
. . · .. ' ·-
to an aggravation of the
1; The Gujarat State Legi!,lature stood .dissol_ved and it was \Ulder the President Rule at that
tiin~ This,question ~as rc1ised, under Articles 55 and 71 of the Constitution.
2. Regu/Jz ~t, inris ignorantian cuique nocere •. .. . . :·. 1. R. v Prince, (1875) 2 CCR 154.
3. Per Lord KiligC. in Lansdowne v. Lansdotvne·Moseley, Dig xxii 6-9. 2. Stanley v. P0toP.ll, (189i) 1 QB 86; The nitro-glycerene case, 15 Wallace 524 (US).

\
\ Explaining the nature of law, Volkgeist observed that law is_:not universal
11
LAW-ITS NATURE AND -K INDS
As stated earlier, the term 'law' is used in two senses, namely, in abstract
arid concrete sense. The term. 'law' when used in abstract sense means the_system
of law, such as the law of India, the law of defamation, law and justice, etc.
The law in its concrete sense means a statute, enactment, ordinance or other
exercise of legislative authority. In the abstract sense we speak of 'law' or 'the
law' in the concrete sense we speak 'a law' or of laws. Abstract law is jus while
concrete law is lex. It is therefore, obvious that 'the law' and 'a law' are not
indentical in nature and_ scope as discussed in the preceding chapter.
Definition and Nature of Law
, According to Austinian conception "Law emanates, and is enforced by the
State. He firmly believed that there is a confluence of command, sanction and
sovereignty in law". Hegal defines it as the abstract expression of the general
will existing in and for itself. Savigny defines law as "the rule whereby the ·
in~isible borderline is fixed . within which the being and the activity of each
individual obtains a secure and free space". He pointed out that law grows
with the growth of people, strengthens with the strength of people and finally
dies away as the nation loses its nationality.
Ihering's definition of law emphasizes on two basic elements, namely
social control and social purpose. In his view 'law is the form of guarantee of,
the conditions of life in society, assured by State's power of constraint'.
According to Friedmann, the law consists of norms of conduct set for a given
community and accepted by it as binding by an authority equipped with the
power to lay down norms of a degree of general application to enforce them by a
variety of sanctions. Thus as rightly pointed out by Duguit, law is essentially a
social fact which regulates the conduct of each individual in the community. In
other words, it is an obligatory code of human conduct aimed as ensuring social
order. In a similar, Parker opined that law as "the body of principles enforced
and applied . by the State through judicial authorities by physical force in
pursuit of justice".
All these definitions clearly indicate that ethical element in law is
conspicuous}~, missing in them. It was Del Vecechio who defined law in terms of
ethical principles and held that law is the objective co-ordination of possible
acts among men according to an ethical principle which determines them and
prevents their interference. · Lord Bacon prefers to call this division of law into jus publicum and jus
Salmond lai.d down a simple definition of law and stated law as the body
of principles, recognised and applied by the State, in the administration of
justice.
( 228)
LAW-US NATURE AND KINDS 229. .
in nature, -like language, it varies Wfth .p eople and ages. The conq?pt of 'living
law' was later expounded by Ehrlich. H. L.A. Hart pleaded that law should
continue to support minimum morality. According to him, some shared morality
. is essential to the existence of aity society. ·
Ulpian expressed a view that "law is not to be deduced from the rule but
the rule from the law". ·
Enforcement and operation of law is essentially territorial, its rules do not
purport extra territorial applicability and those who enforce them do not
apply extra-territorially.
Law has been defined as rules of human action. Blackstone has given a
comprehensive definition of law. According to him, law is a rule of action,
whether it be animate or inanimate, rational or irrational. Thus laws of motion
or mechanics are as much law as the law. of nature or of nations. Other jurists,
however, restrict the meaning and scope of law only to norms necessary for
regulation of human conduct.
Divine Law.And Human Laws
The rules ·of human action which we call law, may be divided into two
categories viz., (1) Divine law or the laws of God; and (2) Human law or laws
framed by men. Divine laws are beyond the purview of jurisprudence as they
fall within the province of theology.
Human laws can further be classified into two categories. The first consists
of rules enforced by a determinate authority, i.e., the State and the second
category consists of rules of morality which are enforced by indeterminate
authority. Austin calls these . moral laws as "positive morality". The . term
'positive' signifies that they are man-made and not God-~ade~ The exampl:s
of moral laws are professional etiquette or mutual respect. Pubhc
disapprobation acts ·as an effective sanction which forces people to obey these
laws. TI1eir contravention would result in unpleasant consequences, such as
ridicule, obstracism, etc.
Public Law & Private Law
The .division of law into public and private is based upon broad distinction
between public and private character of the persons, with ~horn the l_aw .is
connected. The term 'public' implies either State, or the sovereign part of 1t or a
body or individual holding delegated authority under the State. By a 'private
person', is meant an individual, or collection of individuals, however, large,
who or each one of whom, is of course a unit of the State, but in no sense
represents it, even for special purposes. 1
privatum. In private law, the State is indeed present, but its pr~sence i_s only as
arbiter of the rights and duties which exist between one of its sub1ects and
1. Holland T.E. : The Elements of Jurisprudence, 13th Edition, 2010, p. 127.
230 ·· JURISPIUJDENCEAND LEGAL THEORY · LAW-ITS NATURE AND I<INDS 231
\ · . . . .

another. _In puh,lic law, ·state is not only arbit~r, ·but also. c>l;le ~f the parties
interested. ~e. rights. an~ duties ·which it deal~.~oncetns itself_~d it~ sub!fts.
The wnters on Junsprudence have class1f1~d law.·accord mg to ·.tp.ei,i- own
legal perceptiori. Mc Iver has classified law· into two .broad heads, namely; (1) · ·
Priv~te law, and (2) Public Law. · ·
Private.i~~-seeks ·adjustment of relations between p~rson-. t~:_p.~r~~n ,while ·
public _law regulates relationship between person and. the· _State. The Jaw .
. which regulates . relations between .the States inter $e is called·_- Infefoatl.onal ·
law ~ .. . . .. .. •· - '· ., .
. . . Civil law consists of commands . issued by the State to its subjects and
Privafe law may further be ·sub-divided. i11t~ substantive law and
procedural law. Likewise, Public la\'V is of two . kinds, namely,
(1) Constitutional law; and (2) Administrative law.1 . ..
The primary fu~ctio11. of . constitutional. law is to a~ert~in ihe politic~!
centre of gravity of any given States. It also deals wit}:l. sovereign pow~i- "of the
State. It provides for executive, legislative and judicial organs of the State,
their compositipri, functions, powers etc. and also prerogatives of the head of
the State. · · .·· •. ·. · · · . : ·.:
While constitutional law describes the com.position and functions .of the
three major organs of the State, -the administrative, in the widest sense of the
term, ·deals with exercise of political powers of these organs within the limits
of the ,Constitution. Administrative law seeks to guarantee to a ·citizen's
protection · against arbitrary action by executive or administrative authorities
ensuring rule of law within the State. lt seeks to. prevent miscarriage of justice.
Montesquieu has classified law into three categories, namely; (1) Oivfue
law; (2) Physical law; and (3) Human law. He further sub-divides human law
into two categories-moral laws_ and. statute la~;
Salmond's Classification of Laws
Salmond has given an exhaustive classification of laws. He •has referred
to eight kinds of law_s which are as follows 2- ·
1. Imperative law ;
2. _Physical or Scientific law;
3. Natural or Moral law;
4. Conventional law;
5. Customary law;
6: Practical or technical law;
7. International law;
8. Prize law; and
9. Civil law.
1. Mc Iver : Modern State, p . 290.
.., ~- ·J· _ itzgerald: Salmond on Junsprudence,. (12th ed.), p. 21.
1. Imperative Law.-Imperative la:w means "a rule which prescribes a
general course of action imposed by some authority which·enforces it by superior
power either by physical force or any other form of compulsion". Austin was the
main exponent of imperative theory of law which defines law as a command of
the sov~reign which persons are obliged to obey. Thus illlperative law has
referenc~. to the authority from which it proceeds. I_t ma,y be either (1) divine,
or (2) human. The _humari laws may be of three kind·s -(1) civil law; (2) law of
positive .morality; ·and (3) · law of nations which . is also called -International .
law.
enfor~ed _b y its physical power. The law of positive morality consists of rules
~posd ·by·. society upon its members and enforced by · public ridicule or
disapprobation. International law consists of rules imposed upon State by the
society of States and enforced partly by international option and partly by the
threat of war. TI1e breach of international law may ·result into war, severance
of diplomatic relations, economic blockades, etc.
Imperative law has two essential characteristics. Firstly, the command of
the sovereign must be general and addressed ·to a particuiar pets.on, secondly,
the observance of law must not depend upon the pleasure of the people._ but_it_
should be enforced by some authority. In other words, law should.be enforced by
the State. · . • .
2. Physical or Scientific law.-Physical laws are laws of science which.
are expression of the uniformities of nature. There is perfect uniformity and
regularity in these laws and are not subject to change. The examples of physical
law are the law of gravity, law of magnetic force, law of air-pressure, etc.
3. Natural or Moral law.-Naturallaw is based on the principles of right
and wrong. It includes an forms of righteous action. Natural law has also been
called universal law or eternal law'. It is also called rational law because it is
based on reason. It embodies the principles of morality and is devoid .of any
physical compulsion. 1 . · . .
The portion of morality which supplies the important universal rules for
the govern·a nce of the outward acts and conducts of mankind have been termed
as laws of ·rtature: These rules of morality essentially rest on public sentiments.
This view finds support in Cicero's observation that "law is the highest reason,
implanted in nature, which commands those things which ought to be done:~d
prohibits the reverse". · ·
Hugo Grotius made use of natural law to formulate International law.
Other wri!ers who based their legal philosophies on natural law · principles
are Aristotle, Cicero, Kant, Locke, Pufendorf, etc. . . ··
Natural, law embodies the principles of naturaJ ju~tice of which legal
justice is more or. less .imperfect expression. Legal justice and natural •justfr:e
represent two irltersecting circles, that is, justice may he legal but not natural or
moral~ or it Jll~ybe_moral but not leg~l or it may be b:o thlegal anffril.otal.
1. P.J. Fitzgerald : Saimond on Jurisprudence,. (12th ed.) p. 26. .
232 JURISPRUDENCE AND LEGAL THEORY
\
There are three consequences of natural law ~
1. It is in a position to render a human law void if it is repugnant to
natural law.
2. During medieval period; natural ·law helped in development of
judicial and legal process. Natural rights of individual acquired
great importance in this period.
3. It has given strength to the internation~l law to develop as a law.
Many laws of modern time are formulated on the basis of natural law.
Thus the law of quasi-contract, the conflicts of law, law of trust etc. are
essentially founded on natural justice.·· Again, the judicial control of
administrative and quasi-judicial functions is based on the principles of natural
justice. More recently, there has been revival of natural law because there is a
general desire to restore close relations between law and morality. That apart,
modern sociological theories of law have necessitated liberal judicial
interpretation of positive law to suit the changing situations. It has been
realised that any law to be effective must be founded on. reason so that it may
have universal application with variable contents depending upon time and
place.
_ 4. Conventional Law.-According to Salmond conventional law means
"any rule or system of rules agreed upon by persons for the regulation of their
conduct towards each other". It is a form of ~pedal law. For example, rules of a
club or a co-operative society or any voluntary organisation are instances of
conventional law. Some writers are of the opinion that law of nations which we
call as International law is also a kind of conventional law because its
principles are expressly or impliedly agreed upon by the member States.
5. Customary law.-There are many customs which have been prevalent
in the community from time immemorial even before the States came into
existence. They have assumed the force of law in course of time. Thus according
to Salmond "any rule of action which is actually observed by men when a
custom is firmly established, it is enforced by the State as law because of its
general approval by the people". Alinost the whole of Hindu law of marriage,1
adoption, succession etc. is based on customs prevalent in ancient Hindu society.
The Supreme Court, in its decision in Kaliamma v. Janardan Pillai,2 has
accepted the custom of 'Patni-bhagam' among Krishanayak community in
South India as having the force of law.
The ancient Codes of Manu, Narada and Yajnavalkya contain an excellent
exposition of customary law of the Hindu society. The Twelve Tables also
contained the laws which were based on Roman customs during the ancient
Roman Empire.
There is a difference of opinion among jurists about the authority of custom
as a law. Some regard it as a law proper while others treat it simply as a source
1. The Hindu Marriage Act, 1955, The Hindu Adoptions & Maintenance Act, 1956, The Hindu
Succession Act, 1956 etc.
L. ~J.,-/3) Supreme Court Nirnay-Patrika, p. 330.
LAW-ITS NATURE AND KINDS 233
of law. Particularly, the positivists do not accept custom as a law proper but
treat it only as a source of law. But historical jurists like Savigny and Henry
Maine have recognised customary law as far more superior to the law of the
State. ·
6. Practical or Technical law.-Practical laws are rules meant for a
particular sphere by human activity. The laws of sanitation and health,
building construction and architecture etc. may be included in this category.
7. International law .-The law of nations of the 18th century was named
as International law by Bentham in 1780. It consists of rules which regulate
relations between the States inter se. Oppenheim defined International law as
"the body of customary and conventional rules which are considered legally
binding by civilised States in their intercourse with each other" .1
The Permanent Court of International Justice (PCIJ) in S.S. Lotus case 2
defined International law as "principles which are in force between all
independent nations". -
Lord Halsbury, when he was Prime Minister of England, once remarked "it
was a misnomer to call International law as 'law'. It should be better described
as a branch of ethics".
Starke defines International law as "rules of conduct which States feel
·themselves bound to observe and therefore do commonly observe in their
relations with each other and which includes also (a) the rules of law relating
to functioning of international institutions and organisations, their relations
with each other and their relations -with States and individuals; and (b)
certain rules of law relating to individuals so far as the rights and duties of
such individuals are the concern of the international community".
Russel· defined International law as "the aggregate of the rules to which
the nations have agreed to conform to their conduct towards one another".
Salmond, however, believes that International law is essentially a
species of conventional law and has its source in International agreements. It
consists of those rules which the states have agreed to observe in their dealings
with one another. These international agreements may be of two kinds,
namely-(1) express agreements as contain~d in treaties and conventions; and,
(2) implied agreements as found in customary practices of the states.
According to Austin, Willoughby and Holland, International law is a
mere positive morality. They do not agree· that it is law properly so-called.
Austin defines law as a body of rules for human conduct set and enforced by a
sovereign political authority. Since International law is not set or enforced by a
political sovereign authority, it is not law. Also, there is no common superior
over sovereign states. In the absence of any bihding force, the validity of
International law is solely dependent on the voluntary acceptance by the states
and therefore, it cannot be called as "law" in true sense of the term.
1. Oppenheim: International Law, (18th ed., Vol. 1) p. 4.
2. J-927 PCIJ series A No.IO.
 234 JURISPRUDENCE AND LEGAL lHEORY
Holland .also supports to this view of John A,ustin and observes, "the rules_
of Interncttional law are voluntary, though habitually observed by every state
in its dealings with the rest, can be called "law" only by courtesy". Not being
supported by the authority of the state, they differ from ordinary law.
Therefore, he says that intemational law is a vanishing point of jurisprudence1
since it lacks _any arbiter of disputed questions save public opinion, beyond and
above the disputant parties themselves.
Professor Dias suggests that there is, no doubt, that 'the respect which
states pay to International law is far less than what individuals pay to
municipal law, but still it is called "law" to inspire a sense of obligation among
states to follow it. Therefore, it is 'Law', but . indeed a weak law. Though there
is International Court of Justice funcHoning at Hague, but it does not have any
universal compulsory jurisdiction for settling legal disputes between states.
Again, International law having not yet been codified, suffers from uncertainty.
However, Oppenheim defends · International law as "law" and says "a weak
law nevertheless is still a law".
According to Hall and Lawrance, International law is 'law' distinct from
International morality, Sir Federick Pollock also emphasises the same point
when he observes "if International law were only a kind of morality, the
framers of State papers concerning foreign policy would throw all their
strength on moral argument. But as a matter of fact they appeal not .to general
feeling of moral rightness but to precedents, to treaties and to opinions of
specialists".
As regards the attitude of the State towards International law it must be
stated that U.S.A. treats it as a part of its law and insists that it must be
ascertained and administered by the courts of appropriate jurisdiction. For this
purpose, when there is no treaty and no controlling executive act or judicial
decision, resort must be had to the customs and usages of civilised nations. 1hus
International law having its source in a treaty to which U.S.A. is a party, is
undoubtedly regarded as a part of the law of the United States.2 ·
According ·to Harold Laski, states consent to the rules of International law
not because they so choose but really because they have no alternative .
.Moreover, the · states never deny the existence of International law. They
interpret it in such a way as to justify their conduct.
In Great Britain International law is not ipso facto regarded as a part of
the U.K. law as held by Chief Justice Coleridge in Franconia case. 3 In this case
. the Court observed that "the law of nations is that collection of usages which
civilised states have agreed to observe in their dealings with one another.
What these usages must be is a matter of evidence. Treaties and Act!:> of ?tates
are but evidence of the agreement of nations and do not, in En.gland at least, per
se bind the tribunals. However, there is one exception, narnely~ in ca~e of Prfze .
1. Holland : Elements of Jurisprudence, p. 380.
2. Art. VI of the U.S. Constitution on treaties.
3. (1876) 2 Ex. D. 63.
LAW-ITS NATIJRE AND KINDS 235
, • • • • l • , .
Co~rts deciding the legality of capture of cargoes ·or S.~J?s at ~ea "elongin~ to a
belligerertt~'The._ law,which the Prize Court is to admm1ster 1s not the ~ation~l
law or as it is sometimes, called, the municipal law, but the law of nations-in
other words, International law .. /' 1
The question' of ' Forum' does not generall~ ar~se in internatim:-al law,
because of -the essential principle that each nation 15 ..the .Ju_dge of •~s o~n
quarrels, an_d ·the executioner of _its (~wn ·decrees, unless t~ere 1s an arb~tration
clau~e to refer: the quarrel for arb1trat~on.under the convention. . ·
. . . . .. · ·\ . .,._ . . . .
The Indi~ri practke with regard to International Jaw. is alm~st the same
as that _of Grelat Britain. Treaties. which are part . of the l11,tern'1honal law do
not form part ~fthe mtmicipal law unless expressl:ymade so by the le~sl~tiv~
authority. Therefore,-Gov:e~ent's conte~tion tha,t .tr~aty be regar ded as law
·was not accepted by the High Court of RaJasthan m Birma v. State. 2
. · r may however, be pointed · out that despite criticis~ against
Intemahonal law being treated as law proper; it has assumed great ~mp_ortance
in modern world . . A large part of this law is based ori natu_ral JUSt~ce an~
principles of right reason which the states are expected to foll?w. in their
dealings with one another. Although this law_ do~s not h~ve a~y binding force
behind it but the positive morality underlying 1t does inspire states to feel
obliged to follow .it.
8. Prize law .._That portion of InternationaUaw (law of nations) which
·regulates the practices of the capture of ships an~ cargo . i~ w~r-ti~e, . as
· applied by Courts is called Prize law. H
is_meant f~r admm1_stering Justice
between the captors of ships or cargos and the persons interested m t~e property
seized. ·
Salmond, however, disagreed with the view that prize law should be
regarded as a branch of internation~l law in strict sense of the term.
Prize Court is established by ·the State by which ship or cargo has been
held c,\S .captive. The_law applicable .is as agreed by the sovereign States among
themselves. Such courts were established after the end oflndo,.:rak war.of 1971
to .settle . disposal ~f goods sei~ed from ships or cargos which .were captured
during the war-time.
. · ·9. Civil law .-The law enforced by the State is called civH law. The force
of State is the sanction behind this law. Civil iaw is essentiaUy territorial_ i~
nature as it applies within the territory of the State concerned. The
term civil
law is derived from the Roman word jus civile. Austin and Holland prefer to
call civil law as 'positive law' because it is enforced by the sovereign poHtica~
authority. Howev.er,. Salmond justifies the term. 'civil l~w· as the law of the
land. He argues that positive law is not necessanl~ con~~d- to the l~~ of the
Ian& For example, International law is a kind of JUS posztzvzsm but 1t 1s not a
civil law. · ·
I. The Zamora case, (1916) 2 AC 77, 91 (PC) per Lord Parker.
2. AIR 1951 Raj 127.
 . -LAW-,-ITS NATURE AND KINDS · 237
236 JURISPRUDENCE AND LEGAL 1HEORY
i
\ . Holland's classification of private and public law and general and special
Austin's Classification of law \ law in particular deserves detailed discussion. 1 ·
Jahn Austin has "classified law into following categories : I. Private and Public Law
1. Divine law. The province of private law is the adjustment of relations between person
and person, whereas the public law deals with relationship between person
2. Human law.
and the State. In case of private law1 the parties to a case may either be
3. Positive morality which are rules set by nori.,;,political superior e.g,1 natural or artificial persons and the State only acts as an arbiter through its
international law. courts. The laws of property1 contracts, corporations, torts, tntsts etc. are
instances of private law.
4. Law metaphorically or figuratively so-called.
Public l;:\w, on the other hand~ seeks to regulate the activities of the
Austin's classification of law may briefly be classified as follows : -
State. The important sub-divisions of Public law are : (1) Constitutiqnal law1
LAW (2) Administrative law1 (3) Criminal Law and (4) Criminal Procedure. Broadly
speaking, public law deals with the rights and obligations of the State
I towards its citizens and vice versa.
Divine Law Man-made Law Improperly Law
I ( or Human
Law) .
called Law metaphorically or · Private and public law1 taken together are called municipal law. In public
law, State is an interested and enforcing party whereas in private law, State is
figuratively
Revealed so-called
only the enforcing authority.
Unrevealed
(written in (presented by man's I Constitutional Law
scriptures) conscience) One of the sub-divisions of Public law is constitutional law. Hibbert
Law of Art Self defines constitutional law as, "body of rules governing the relation between the
prescribed sovereign and his subjects and the different parts of the sovereign body".2
Positive law Positive rules of The primary function of constitutional law is to ascertain the political
(made by morality (rules conduct centre of gravity of any given State. In other words, it defines the form of
political set by Government and its various constituent agencies. It also defines the constitution,
superior) non-political powers and functions -o f the legislature, executive and judicial organs of the
superior e.g. state and of course1 the 'prerogatives' of State its sovereign authority.
International
Dicey gave a more comprehensive definition of constitutional law. He
Law)
said, "constitutional law includes all rules which directly or indirectly ctffect
Austin regards only divine law and human law as law proper but does not the distribution or exercise of the sovereign power of the State. Hence1 it
consider positive morality and figurative law as law in real sense of the term includes all rules which define the constituent members of the sovereign power1
as they lack binding force in the absence of a sanction and no evil consequences all rules which regulate the relation of such members to each other or which
follow in the event of their breach or infringement. determine the mode in which sovereign power of the members thereof exercise
their authority" .3
Holland's Classification of Law
Professor Wade suggests that there is no concrete definition of constitional
Holland preferred to classify law according to their functions. He law. It includes rules of law including binding conventions1 which regulate the
classified law into following categories : structure of the principal organs of government and their relationship to each
1. Private and Public law. other and determine their principal functions.
2. General and Special law. Salmond pointed out that constitional law is the body of those legal
principles which determine the Constitution of the State. The structure and
3. Substantive and Adjective law.
1. Holland T.E.: The Elements of Jurisprudence, (13th Ed., 2010) p. 148.
4. Antecedent and Remedial law. 2. Hibbert: Jurisprudence, p. 199.
3. Dicey A.V.: Law of the Constitution, p. 76.
5. Law in rem and in personam.
 I
1
238 JURISPRUDE NCE AND LEGAL.THEORY
\
. \
functions of the Supreme Legislature~ Supreme \Executive. and the St1prerne
Judicature and the method of their working also constitute the subject-matter of
the constitutional law. 1 The English Constitution is ~nwritten and flexible and
it can be easily amended with the consent of the three-fourths of the members
of the legislature of the .different States; In other words, the method of
amendment of British Constitution is same as that of passing an or4inary law.
The main sources of the English Constitution are judicial precedent~, .co:rru:i:i:on
law, statutes and· conventions, bill of r~ghts
.
etc. . · · It would be pertinent to distinguish administrative law from
The Indian constititional law is ~ontained in .the Constitution .of India
which came into force on 26th January, 1950. It is a written, quasi~federal
Constitution which can be easily amended 'like the British Constitution. The
amending provisions are contained in Article 368 of the Indian Const1tution ..
The provisions relating to fundamental rights and directive principles of State
policy are directed towards the welfare State. The Preamble of the
Constitution envisages that India is a Sovereign, Socialist, Secular, Democratic
Republic2 which secures to its citizens justice, liberty; .equality an:d fraternity
and ensures unity and integrity of the nation. · ·
Administrative Law
Like Constitution law, administrative law is another sub,-division of
· public law. It describes in detail the n\anner in which the govemm~nt shall
exercise those powers that were outlined .in the constitutional law ..It is· that
part of public law which determines the competence qf . the organs that
administer the law and provides for remedies in case of violation of
individual's rights. It generally deals with matters of procedure and not of
substance. · · that they are quite distinct from the general law.
Sir Ivor Jennings defined Administrative Law as "the law relating to the
administration, it determines the organisation, powers and duties of
administrative authorities".
In · France, administrative law is called droit administratif which consists
of "all the legal rules governing the relatior.s of public administrative bodies to
one another and to individuals".
According to Dr. Rene David droit administratif is "the body of rules
which determine the. organisation and the duties of public administration and
which regulate the relations of the administrative authorities towards the
citizens of the state".
According to A. V. Dicey, administrative law as it operates in France
determines-
(i) the position and liabilities of State officials;
(ii) the rights and liabilities of private individuals in their dealing with
government officials; and
1. P.J. Fitzgerald: Salmond on Jurisprudence, pp. 83-87.
2. Substituted by Constitution (Forty-second Amendment) Act, 1976, (w.e.f. 3.1.1977).
LAW_;_ITS NATURE AND KINDS 239
.
(iii) the procedure and manner in which these rights and .liabilities are
enforced. · · · .· - •,
It may .be stated that the disputes between private persons arid · th~ State
are adjudicated l:>y administrative tribunals arid not by ordinary courts of law.
This accounts for uncertainty of the decisions of these tribunals in the absence of
an assured consistent technique of interpretation which could make the
decisions reasonably forceable. . .
constitutional law. Holland remarked that constitutional law deals with
various organs · of sovereign power as at rest while· administrative law deals
with those organs as in motion. The first deals with the structure while the
second with the functions of the State. Constitutional l;,tw deals with the
general principles relating to organisation and powers of organs of the State
and their relations inter se and towards the citizens while the administrative
law is that aspect of constitutional law which deals with the powers and
functions .of the administrative authorities.
II. General and Special Law .
General Lc?W .-,-The territorial ·law of a country is called General law. It
con_sists of all persons, th~gs, acts and events within the territory of a ·country
which are governed by 1t. For example, Indian law of crimes and law of
cont~act~ . are . the . general laws .:of the country because they have '. general
apphcahon throughout the territory of India. As ··against the general law,
there are certain kinds of special laws which consist of certain other bodies of
legal n.1les whic~ are. s~ spedal and exceptional in nature, source or application
· ·. · .
. . . . General law consis~s of those legal rules of which the courts take judicial
notice whereas the special law . consists of those legal rules which courts will
not recognise and apply them as a matter of course but which must be
specifically proved and brought to the notice of the courts by the interested
parties. Thus Salmond has rightly pointed out that the true test of distinction
between the gener~l la~ and sl:'ecial law is judicial notice. For example, if a ·
customary law~ which 1s a spec1_e of special law, is to be proved, the parties
have to prove 1f they rely upon 1t because the court may not ordinarily know
whata particular custom is. .
., . . Sp~cial Law.-Besides the general law, there are certain kinds of sped~!
~aws wh_1c~ t~e court are bound to know. They are called jus specile. The maxim ·
~gripra.ntia Juris non. exc.u sat ~ppli~s to special law in the same way as it applies
~ ~ase of general law. The idea 1s that a man is supposed to know the law and
therefore, court should know it still better. The instances of special law are the
Bombay Prohibition Act, The Maharashtra Ownership of. Flats Act, Tamil
Nadtf Gambling Act, The Calcutta Police Act etc. ·
· There are s_everal kinds of special laws, namely, (1) local law, (2) foreign
law, (3) conventional law, (4) autonomic law, (5) martial law, (6) International
law, and (7) mercantile law, etc.
240 JURISPRUDENCE AND LEGAL THEORY
1. ·Local Law.-Local law is the l~w of a ~articular locality and not the
general law of the whole country. It · ma,y be of two kinds-(1) local customary
law, and (2) local enacted law. '
Local cus,tqmary law has its ro,ofs in those immemorial customs which
prevail in a paqicular part of the ~tat~ and therefore, have the force of law.
For example, . right of pre-emption °In respect of i~ovable property cannot be
claimed by Hindus under the general law but such right is recognised by custom
in Bihar; Haryana and DelhL Ag~n, .the Oodukur system of land tenure is a
local cus~pmary law in- Soufh_,,Travancore. Under· this system, the yield from
properties are jointly taken .and divided amongst the co-owners.
The local enacted. law, on the other hand, has its source in the local
legislative authority or municipalities or other corporate bodies empowered to
govern their spheres by bye-laws, supplementary to general law. For example,
the Bhopal City Improvement Trust Act is an illustration of the local enacted
law. · law may be declared for particular area in a State in peace time.
2. Foreign Law.-At times it may become necessary to determine the rights
and liabilities of parties on the basis of foreign law. It is true that ignorance of
law is no excuse but ignorance of foreign law is excusable just as the ignorance of
fact.
The question of applicability of foreign law arises when the court is
required to dispense justice between parties belonging to different countries on
reciprocal basis. The principles which determine and govern or regulate
substitution of foreign law for the law of a particular State constitute what is
known as conflict of laws or the private international law.1
However, if foreign law on a particular point is contrary to the law of a
country, the municipal court of that country is not bound to enforce the same.
Thus in Robinson v. Bland, 2 Lord Mansfield ruled that a contract to pay
gambling debt entered between Englishmen in France was unenforceable by
English Court being illegal though it _was valid under the French law.
3. Conventional Law.-It is a specie of special law and has its source in
the agreement of those who are subject to it. Agreement is a law for those who
make it. For instance, articles of association of a company or partnership are
conventional laws.
4. Autonomic Law.-lt is that specie of enacted law which has its source
in various forms of subordinate legislative authorities possessed by private
persons or bodies of persons. For example, a university makes its ~tatutes for the
conduct of its members or a co-operative housing society may make its by-laws.
Pointing out the distinction between autonomic law ·and conventional law
Salmond observed that autonomous law is a specie of legislative activity
1. The basic difference between Public International Law and Private International Law is
that former is concerned with the States, while the latter is concerned with foreign
individuals (nationals) and not with States.
2. 1867 QLR 474.
LAW-ITS NATURE AND KINDS 241
imposed by superior authority whereas conventional law is based purely on
agreement between only those who actually agree to its authority. _
5. Martial Law .-It is a law which is applied to Court Martial in the
administration of Armed Forces. Martial law is of three kinds : .
( i) It is the law for the discipline and control of army itself and it has .
no application to civilians; ·
(ii) The law by which the army in times of war governs foreign
territories in its occupation outside the realm. The defeated country
is governed by the military commander through prerogative of the
sovereign;
(iii) The law by which in times of war or emergency, the army governs
the realm itself or part of the realm in derogation of the civil law
so far as required by military necessity and public safety. Martial
The courts cannot question the validity of military action so long as
it acts honestly.
Martial Law distinguished from Military Law
It must be understood that the Martial law is something quite different
from the military law. The main points of distinction are as follows :
(i) Martial law is in enforced only at the time of war whereas
military law may be enforced both at times of peace and war.
(ii) Martial law applies to soldiers as well as civil population but the
military law is applicable only to army or military personnel.
(iii) Martial law has its source in the Royal Prerogative whereas the
military law _is contained in the Army Act and depends upon the
pleasure of the Military Commander.
(iv) Martial law is temporary, that is, it is essentially a war-time
measure but military law is a permanent law.
6. International law as administered in Prize Courts.-Prize law is that
portion of International law which is administered in the Prize Courts of a
state in times of war. Prize law regulates the practice of capture of ships and
cargoes at sea in times of war. The Prize Courts investigate the legality of all
captures of ships or cargoes and claims of persons interested in the property
seized. If seizure is lawful the property is condemned by the Prize Courts as
lawful prize of war, and if it is unlawful, decrees are passed for such restitution
or redress as the law requires.
A Prize Court is not an internatinal court insofar as it is established by
individual State which captured the ship or cargoes. But the law which this
Court applies is law of nations. Prize law, therefore, has two aspects. It is
international in nature because it prevails between nations and it is civil law
because it owes its origin to municipal authority of the State.
242 jtJRISPRUDENCE AND LEGAL THEORY
i . .
A~ to the natute of the Prize Court 4:>rd Parker observed that it is a
municipal court a11d all its decrees and ordet owe their validity to municipal
law but the law which the Prize Court administers is law of nations, i.e.,
International law.I
In India, Prii, eourts were set up to decide the validity or otherwise of
the seizure of ship, Afki cargoes during Indo-Pak conAict in_ 1971.
7. MercaµtiJt Uw.-Yet another kind of sp~cial law consists of the body
of merchantile cutt:@m~ and usages. For example, law of Hundis in India is
creation of the mercffltik customs and usages.
III. Substantive and Pri.1\~,: d,., ral Law
According to §almond, substantive law is that which defines a right
while procedural law determines the remedies. Procedural law is also called
'law in action' as H governs the process of litigation. Substantive law is
crincemed with end§ which the administration of justice seeks to achieve while
procedural law d~is with the means by which those ends can be achieved. For
example, law of COfltract, transfer of property, negotiable instruments, crimes
etc. are substantiv~ laws ·whereas the laws of civil procedure or criminal
procedure are pr~dural laws.2
IV. Antecedent ancl Remedial Law
Antecedent l2tw relates to independent specific enforcement without any
resort to any remedial law. The law relating to specific performance of a
contract is the best example of antecedent law. The remedial law, on the other
hand, provides for a remedy. For example, law of torts, writs etc. come within
the category of rel\\edial laws.
V. Law in Rem and Law in Personam
Law in rem relates to enforcement of rights which a person has against the
whole world or a1ainst the people in general _whereas law in personam deals
with enforcement of right available against a definite person or persons. For
example, law of ihl1eritance, succession, ownership etc. comprise the subject-
matter of law i_n rem while the law of contract, trust etc. are the species of law
in personam.
The Common Law ~d Equity Law
Any discussi~n on various kinds of law will remain incomplete without
reference to common law and equity law of England because these laws have
particularly influE}nced the Indian law during British colonial rule in this
country. It would ~herefore, be appropriate to briefly surmmarise these laws.
Common Law
The term COil:\mon law has reference to general law of England. There are
three kinds of general law in England, viz., (1) statute law, (2) common law,
and (3) equity law,
1. The Zamora ca5ie 1 (1916) 2 AC 77 (PC).
2. For a detailed dtscussion see infra chapter on Law of Procedure.
LAW-ITS NATURE AND KINDS 243
The English statutory law is derived from legislation. It is an enacted and
written law. Common law is the entire body of English law with three
exceptions, namely, (1) statute law, (2) equity law, and (3) special law in its
various forms. It is unenacted law which is produced by customs, usages, and
precedents as opposed to enacted statutory law made by the Parliament or
subordinate legislative authorities. The origin of common law in England can be
traced back to the period of Norman conquest in the twelfth century. Common
law · developed as the royal power gradually increased and restricted the
powers of the landlords. The jurisdiction of the King's Court had been enhanced
by royal writs during 1154-89 when Glanville was the Chief Justice in the reign
of King Henry II. The writs strengthened the authority of the king and at the
same time brought to end the domination of the landlords who could no longer
exploit their tenants.
In the early fourteenth century, the Court of Chancery was set up to
administer justice side by side with the common law courts. The Judicature Act,
1873 finally brought about the fusion of equity law with the common law. A
High Court of Judicature was established which had five divisions, namely,
Queen's Bench, the Court of Common Pleas, Equity, Exchequer Division and
Admiralty_, Probate & Divorce Division. Though the equity law had become a
part of the single system, it had its distinct jurisdiction and the term common
law was being used to distinguish itself from the equity law. In modem time,
most part of the common law has been transformed into statute law through the
process of codification of laws.
Equity Law
The common law of England during the period of thirteenth century
suffered from certain serious defects which made it rigid and inadequate. There
were three major defects in the common law, namely, (i) absence of remedy; (ii)
inadequacy of remedy; and (iii) excessive formalism which caused great
injustice to litigants. It was, therefore, considered necessary to mitigate the
rigours of common law by supplementing it by the rules governed by the
conscience of the Judge. The aggrieved party, not bein.g in a position to get justice
or obtain remedy, could approach the King for redress. The King referred the
case to the Lord Chancellor who was supposed to be the keeper of the King's
conscience. He considered those petitions and gave relief in suitable cases,
particularly those relating to trust, specific relief, frauds, errors, unjust
enrichment etc. ·
The equity law thus developed out of necessity to supplement the
deficiencies in the common law of that time. In course of time, the Lord
Chancellor advised the Judges of the Court of Chancery to supplement the ·
common law with principles of justice, equity an4 good conscience. During the
reign of Henry VI, the Lord Chancellor, could grant the remedy of injunction
which prohibited the execution of decrees passed by the common law courts in
appropriate cases. The remedy of injunction gave rise to constant clash and
conflicts between Lord Chancellor Ellesmere of the Equity Court and Chief
244 JURISPRUDENCE AND LEGAL THEORY
\
Justice Coke of the Common Law Court. These disputes were referred to Lord
Bacon who was the Attorney General of England. He decided the matter in
favour of Lord Chancellor of Equity Division. Thus equity law in England
developed to supplement the defects of common law .and not to supersede it. It
was allowed to prevail over common law in order to remedy the defects of
the common law. Though equity has now merged into common law but it is
.too often ~aid that "the two streams, i.e., common law and equity flow side by
side but their waters do not mingle". This, in other words means that even to
this day, equity principles are as effective as the common law principles in
England.
Commenting on the development of 'equity law in England, Maitland
observed that the history, origin and growth of equity clearly shows that it
grew up from the deficiencies or the defic;:iencies and inadequacy of remedies
provided by common law and it came to protect and promote the interest of
justice against rigidity of the law. In Blackstone's view, equity and common law
are not two opposing systems, and there is little to distinguish them except
their historical origin and modes of procedure.
Salmond attributes three meanings to the term 'equity'. In the first place
it connotes the e1!lbodiment of the principles of morality, hones'ty and
righteousness. In the second sense, it is synonymous with natural justice and
thirdly, in its narrow sense it consists of set rules of equitable law as opposed to
common law.
In England, equity has become a potential source of law. Some of the laws,
such as law of trusts, mortgages, quasi-contract, specific relief, etc., have
developed on the equitable principles ·of equity. Likewise, the doctrines of
election, marshalling, subrogation, unjust enrichment, assignment etc. have
emerged out from the equitable principles.
In India, however, there is no separate existence of equity law but the fine
principles of equity law have been incorporated in various Indian laws. Thus
the Indian Trusts Act, 1882 and the Specific Relief Act, 1~63, are modelle~ on
the principles of equity. Again, most of the provisions of the Transfer of
Property Act such as doctrine of the election} contribution, part-enformance, 2
mortgage,3 etc. are based on the principles of equity. With the passing of the
Transfer of Property Act, 1882, the distinction between legal and equitable
estates or interests does not exist in India. Consequent to the incorporation of the
four important principles of equity, namely, (1) clog on equity of redemption, (2)
'once a mortgage always a mortgage', (3) lien, and (4) ~quity of redemption, the
mortgagor, under Indian law, is the owner who parted with some right of
ownership and the right of redemption, 4 i.e., a right which he exercises by
virtue of his residuary ownership.
1. Section 35, Transfer of Property Act, 1882.
2. Section 53-A.
3. Section 58.
4. Section 60.
LAW-ITS NATURE AND KINDS
Comparative Law
Though some writers consider comparative law as one of the species of
law, but most authorities hold that it is not an independent branch of law.
According to them, comparative law means a comparative study of different
laws of States or nations with a view to make use of them to amend or modify
the law of one's own country so as to make it more pragmatic and effective.
Thus, comparative law is, in fact, an analytical method of .c omparing a specific
law or laws of different countries and adopt the best available in them for the
improvement of country's own law. However, only that part of law of the other
country is adopted, which suits the local and social condition of the adoptee ·
country. For example, after the Indian Independence, the Constituent Assembly
was to frame a new Constitution for India. While accomplishing this task, Dr.
B. N. Ray, the Constitutional Advisor to the Government of India, visited
several countries notably, U.S.A., Canada, Ireland, Australia, U. K. etc. and
carried out an indepth study of the Constitution of these countries to pick up the
best out of them, to be incorporated in the new Constitution of India, which
would be in the larger interest of the Indian citizens and nation as a whole.I
A comparative study of the modem Hindu, Mohammedan, Christian and
Parsee personal law indicates that these laws are founded on the ancient law,
which underwent changes with the change in time and social structure of the .
society.
It is well known that law .being a dynamic concept, changes with the
transformation of society responding to its needs. The comparative law,
therefore, acts as a useful means to bring about necessary amendments and
modifications in the existing law fo~· the welfare of the people as also the
nation.
It would thus be seen that comparative law comprises the study of law
operating in different countries on a specific subject like, contract, marriage,
inheritance, succession, crimes, torts, taxation, labour etc. so as to know their
respective merits and demerits and incorporate the merits thereof to update or
reform the corresponding law in ones own country. The comparative method has
been found particularly, useful in amending and modifying the law of a country.
Comparative Law is not a 'law', instead it is a method of study
Prof. Guttridge, is well-known authority on comparative law, has
observed that use of the term 'comparative law', for comparative method of
study is rather misconceived.
To quote his own words :
·"Comparative law is an unfortunate but generally accepted, label for
the comparative method of legal study and research, which has come to be
1. The Fundamental Rights enshrined in Part III of Indian Constitution owe their origin to US
Bill of Right; the Federal structure is adopted from Canadian Constitution; the Directive
Principles enumerated in Part IV are taken from the Constitution of Irish Free State and
provisions relating to trade and commerce from the Australian Constitution. The
Parliamentary form owes its origin to British Parliament.
 246 JURISPRUDENCE AND LEGAL THEORY
i
~ecognised ·as the best means of promoting~ community of thought and
interest between the lawyers of different nations and as an invaluable
auxiliary for the development and reform of our·own system of law.'' .
The need for constant review and revision or amendment of law to suit the
needs of the changing society hardly needs to be emphasised. The comparative
study ~law) proves to be especially useful to accomplish this purpose. Various
coun~es _keep on upda?11g and developing their own laws to cope up with the
changing pattern of their society. . provisions of law prevailing in different countries on a particular subject; and
Classification of Comparative Law :
W~iters on comparative· law have classified this law in different ways.
Pro_f. W1gmore_ has classified comparative law as a method of study into three
main classes vzz., ·
(1J <:,om~ara~ive Nomogenetics.-It includes the comparative study of
law existmg m different countries on particular subject such as family law,
property law, law of succession, inheritance or adoption etc.
(~) CompaMtive Nomothetics.-It includes the comparative assessment
of me~:,,ts of the aforesaid collection of laws of different countries and the extent
to which they may be adopted.
· (3) Comparative Nomogenetics.-It includes the comparative study of
effect o_f laws of othe~ countries on the laws of a particular country _and
suggestions for future unprovement therein. For example the impact of equity
1
law which origin~ted from England, on the Indian law and legal system is
clearly reflected m the Indian law of Trusts and many provisions of the
Transfer of Property Act.
P~ofessor Roble, however, preferred to classify comparative law under the
followmg heads :-
(1) Ethnological Jurisprudence.-It consists of study as to what should be
the nature of law to meet the basic needs of individuals in the society.
(2) Historical Comparison.-The historical events of different countries
have to. be studied_ and taken in consideration which · have led to the
formulation of a particular law in that country and also how it has undergone
changes over the years.
(3)_ Synthetic Diagnostic Comparative law.-It includes a relative
compari_son of laws of different countries for the improvement of law and
~uggeshons. for future amendments and modification for its . effective
implementation.
According to Prof Kantorowiez, the study of comparative laws includes :-
. (1) Geograph_ical Comparison, that is topographical and physical
circumstances leadmg to formation of a particular law.
, <2 ) Mate~ial Comp~rison.-That is, comparison confined to only specific
1aws on a particular subJect so as to find out its merits and demerits.
LAW-ITS NATURE AND KINDS 247
(3) Methodological Comparison.-Which comprises a comparative study
·of principles underlying -the laws on different subjects and suggestions for
improvement of those laws in future.
Professor Guttridge has opined that comparative procedure involved in
the study of comparative law may be classified into two broad heads :_;_.
(1) Descriptive study of law which involves collection of important
(2) Applied Comparative law, which involves comparing provisions of
law so collected, and make use of them for reforming the law of one's own
country.
The material which is generally available for the comparative study of
law or laws, includes-(i) codified provisions of law; (ii) customs;
(iii) principles evolved as a result of judicial decisions; and (iv) socio-physical
conditions which led to enactment of a particular law.
Importance of Comparative Law
Comparative law has an important place in . evolution of a system of
jurisprudence in a country. As Holland rightly pointed out "just as similarities
anc\ differences in the growth of different languages are collected and arranged
by comparative philology, and the facts so collected provide a foundation of
abstract grammar, similarly, the comparative law collects and tabulates the
legal institutions of various countries, and from the results thus prepared, the
abstract science of jurisprudence is set forth and formulated" . A system of
jurisprudence can, therefore, be developed from the observation _of one system of
law only by comparing together laws enforced in the same country at different
times.
Comparative law as a method of study not only enables a country to
improve and develop its law on a particular subject or subjects by amending or
revising it, but also helps in enacting new laws on a subject for which there is no
adequate law in force. For instance, though India had enacted its Information
Technology Act in 2000, but that being a new emerging field, the principal Act
did not provide solution for all the problems emanating from I. T. violations.
Therefore, the law was comprehensively amended in 2008 so as to remove the
lacunae and deficiencies in the principal Act after a thorough study of Cyber
laws of U.K., U .S.A., Canada, Australia, Japan, China etc. In result, an
effective mechanism has now -been devised in the amended I. T. Act by
providing for setting up a National Nodal agency to combat cyber crimes
involving privacy intrusions.
The provisions relating to plea b_a rgaining contained in Section 265-A of
the Code of Criminal Procedure, 1973 which has been newly inserted by the
Criminal Law (Amendment) Act, 2005, is yet another illustration to show as to
how comparative study of laws of other countries helps in improving our own
laws. 1
1. Section 265-A has been inserted in Cr. P. C. by the Amendment Act of 2005 on the model of
U.S. law on Plea bargaining.
248 JURISPRUDENCE AND LEGAL THEORY
i
- Comparative law not only involves th~ study of inter-state laws on
different subjects but also covers the study of intra-State laws. This may be
explained by an example. The provisions relating to anticipatory bail are
contained in Section 438 of Cr. P. C. and are made applicable throughout India
but the State of Uttar Pradesh by a State legislation1 has provided that the
provisions relating to anticipatory bail have no application in the State with
effect from November 28, 1975 because it was noticed that this law was being
misused by the hard-core criminals to avoid arrest.
-Comparative law vis-a-vis Constitution of India
The Constitution of India provides the best illustration to show as to how
comparative study of the laws of different nations helps in framing a new law
for a country.
Broadly speaking, the Constitutioq of a country details out the rights and
liability of the State towards its citizens and vice versa. Every Sovereign
State adopts a Constitution of its own which describes the composition, powers
and functions of three vital organs of the Government, namely, the Executive,
Legislature and Judiciary. It also takes note of certain customs which have
assumed the· form of law due to long usage. 2 The impact of judicial decisions
passed from time to time according to the changing needs of the society is also
reflected in the form of constitutional amendments. 3 As many as 104
constitutional amendments made so far bear testimony to the fact that utility of
past laws in rapidly transforming society is constantly being tested by the
method of comparative study and they are repealed or amended so as to serve
the needs of society. As stated earlier, many parts ·of the Indian Constitution
are incorporated after a comparative study of the constitutional documents of
other countries by Dr. B. N. Rao whp was the Constitutional Advisor to
Government of India and a prominent member of the Constitution-Draft
Committee. For illustration, some of them are as follows : -
1. Federal structure is adopted from the Canadian Constitution.
2. Part Ill of the Indian Constitution consisting of fundamental rights is
modelled on the American Bill of Rights.
3. Part IV containing directive principles of State policy owes its origin
to the Constitution of Free Irish State. 4
4. The provisions relating to legislative distribution of powers and trade
and commerce clause are based on the Australian model. · under the laws of foreign States, title to movable and immovable property
5. Parliamentary form of the Government is adopted from the British
Constitution.
6. The provisions relating to Tribunals, Commission etc. one their origin to
French Constitution.
l. Section 16 of the U. P. (Amendment) Act, 1976.
2. Panchayati Raj is an illustration of this in the context of Constitution of India.
3. Agrarian Land Reforms during the first 25 years of Indian Independence led to the 1st, 4th,
7th, 17th, 24th, 39th & 42.nd Constitution Amendments.
Article 10 of the ltish Constitution, 1952.
LA W--'-ITS NATURE AND KINDS· 249
7. The provisions relating to Tribunals, Commissions etc. owe their origin
to French Constitution.1
Jurisprudential Importance ·of Comparative Law
Though the comparative law and jurispruqence operate in two different
fields, they are not altogether separate from each other. It is through the
comparative method of study of law that fundamental principles of
jurisprudence are evolved, on the basis of which law ori different subjects are
framed. ·
Jurisprudence consists of those legal principles which are ultimately
transformed into laws for regulating the conduct of individuals in the society.
For example, jural concepts like rights, duties, possession, ownership, property,
juristic personality etc. which constitute an indispensable part of jurisprudence,
provide source-material for framing laws, which regulate human relationship
on these vital aspects of human life. The application and interpretation of the
principles underlying these concepts are of vital importance for the .study of
· jurisprudence which is facilitated by the process of comparative method of
approach to law. Therefore, most writers agree that the methodology adopted
for study of comparative law serves a useful purpose in the development of
jurisprudential principles on the basis of which laws are made. ·
Conflict of Law (Private International Law)
Before concluding the discussion on various kinds of laws, a reference must
also be made of the private International law which is also called the Conflict
of Laws,2 though Salmond did not prefer to include it in this classification of
laws. It is well established that each State is free to adopt for the decision of
any given dispute, its own domestic law or a foreign law which it may choose
and prefer. However, the authority of a domestic law can never be displaced by
that of a foreign law.
Private International law denotes the mode in which rules of private law
are borrowed by the Courts of one State from those of another. It consists of rules
which the Courts of the State follow when a dispute concerning some for~ign
element arises between private persons. Dicey prefers to call it' conflict of
laws'. For example, under Section 13 of the Code of Civil Procedure, 1908, the
Courts in India give effect to a foreign judgment under certain circumstances.
Generally, the questions relating to marriage contracted or divorce granted
when a foreigner dies intestate, the validity of wills made in a foreign country,
the legal capacities of parties contracting under the laws of foreign ~tate etc.
are governed by the private international law. The national Courts give _eff~ct
to the rules of foreign law or judgments only if certain elements of common Justice
1. The list is illustrative and not exhaustive.
2. The critics have objected to the use of title conflict of laws to the private International
law because there is no question of conflict where a State suo mot~ accepts tl~e
application of a foreign law by its dom~stic Court. TI1e}'. als~ assert that m tact ther~ 1s
nothing 'private' in the private International law so be title private International law .
250 JURISPRUDENCE AND LEGAL THEORY

and equity are present. Some States, however, insist~n reciprocal recognition of
their own laws or judgments on the part of the foreign State. Oppenheim,
however, opposed the use of nomenclature, 'private· international law' on the
ground that the same may become international law if the States agree by law- 12
making treaties upon rules as the application of which would solve ·such
conflicts. In that case, it shall no longer remain a 'private' international law THE ADMINISTRATION OF JUSTICE
nor a 'conflict of law', and assume the form of a 'international law'.
The two most essential functions of a State are-(1) war, and
· (2) administration of justice. If a State is incapable of performing these
000 functions, cannot be rightly called a 'State'. Administration of justice implies
the maintenance of peace and order within a political community by means of
physical force of the State. It is the modem and civilised substitute for the
primitive practice of private vengeance and violent self-help. Physical force of
the State is the prime requirement for a sound administration of justice. There
are, however, other factors which help administration of justice and command
obedience of law. They include social sanction, public opinion, custom,
convenience etc.
Lord Bryce once observed that there can be no better test of the excellence
of a Government than the efficiency of its judicial administration. As rightly
pointed out by Salmond, it is through the instrumentality of law that justice is
administered. According to him, "law is the body of principles recognised and
applied by the State in the administration of justice 1 Similar view has been
11
•

expresse<;l by Roscoe Pound who said that law is the body of principles
recognised or enforced by public and regular courts in the administration of
justice.
The Concept of Justice
The concept of justice is as old as origin and growth of human society itself.
The social nature of man demands that he must live peacefully in society.
While living so, he experiences a conflict of interests and expects rightful
conduct on the part of others. This is the reason why Salmond and Roscoe Pound
have emphasised the importance of justice in their definitions of law.
According to Blackstone, justice is a reservoir from where the concept of right,
duty and equity evolves,
Salmond further opines that though every man wants others to be
righteous and just towards him, he himself being 'selfish' by nature may not be
reciprocal in responding justly. This is why some kind of external force is
necessary for maintaining an orderly society. For Salmond, without justice, an
orderly society is unthinkable.
The concept of justice became more conspicuous with the growth of State
which ensures justice to it people through the instrumentality of law. As the
law grew and developed, the concept of justice also expanded its tentacles to
different spheres of human activities. Thus for example, today we have civil
justice, criminal justice, economic and social justice, distributive justice and so on.
1. P.J. Fitzgerald: Salmond on Jurisprudence, (12th ed.) p. 51.
( 251)
252 JURISPRUDENCE AND LEGAL THEORY
The essence of legal justice lies in ensuring \uniformity and certainty of law
and at the same time ensuring that rights and duties are duly respected by the
people. In other words, the citizens are expected to shape their conduct so as to
ensure that they do not violate the rights of their' other ·fellowmen and at the
same time they abide by the duties imposed on them by the law.
Yet, another essential attribute of the notion of justice is the element of
impartiality imbibed in it. One has to be just and fair not only to himself but
towards all members of society. The violation of justice which is enforced by
the law results into -State sanction which is generally called punishment. This
is rather indispensable for sound administration of justice. As Chief Justice
Coke rightly pointed out, "wisdom of law and justice is wiser than man's
wisdom," meaning thereby that legal justice represents the collective wisdom
of the community which Rosseaue called as General Will of the people.
Justice According to Law
The modem version of the concept of justice is expressed in terms of "justice
according to law", which Dicey has called the 'Rule of Law'. This presupposes
that law and justice apply to all alike without any differentiation
whatsoever, that is "no one is above law." From this point of view, he considers
it unnecessary to distinguish between civil and criminal justice and treats them
i Commenting on Social Justice Mr. M. C. Chagla, the former Chief Justice of
as violations of public justice.
I the Bombay High Court obserwd as follows : -
Importance of Administration of Justice
As stated earlier, man being selfish by nature, some kind of external
coercive authority is needed to keep him within limits and restrain his
unfettered liberty. Unlimited and unrestrained liberty would lead to a state of
anarchy and choas. In its proper sense "liberty consists in the power to do
everything that does not injure another." 1 Herbert Spencer also said, "every
man is free to do what he desires provided he infringes not with the equal
freedom of any other man." Thus liberty implies freedom of action so far
permitted by law. It therefore, follows that legal . liberty depends on the
existence of the authority of the State.
The necessity of force of the State for administration of justice has also
been emphasised by Jermy Taylor who observed, "a herd of wolves is quieter
and moves as one than so many men unless they all had one reason in them or
have one power over them." Hobbes also believed that a common power was
necessary to keep people within control in the community_. Force is necessary to
prevent the recalcitrant minority from gaining unfair advantage over law-
abiding people in general. Therefore, State force is inevitable for protection of
rights of individuals in society.
Justice is said to be ultimate end of law and the goal of society, which
Judges of the Courts have been pouring into law with new variants of justice in
the form of contemporary values and need based rights like freedom, liberty,
1. The famous Declaration of the Rights of Man adopted in France in 1789.
THE ADMINISTRATION OF JUSTICE 253
dignity, equality and social justice, as ordained in the constitutional document.
Access to justice to the people is therefore, the foundation of the Constitution.1
The Concept of Social Justice
Social justice is a very indeterminate expression and no clear-cut
definition thereof can be laid down. Strictly speaking, social justice means
removal of injustices in the personal relations of the people, but the term is used
in a much broader perspective to connote removal of imbalances in the political,
social and economic life of the people. It seeks to ptovide necessary help to
underprivileged so that they may have equal opportunity in life. The aim is .to
uplift the underprivileged sections without unduly and unreasonably affecting
the interests of the upper section in the social setting.
The concept of social justice is enshrined in the legislation in two forms,
namely:-
(i) by removing the existing socio-economic and political inequalities
and discrepancies; and
(ii) by enacUng laws to achieve the socio-economic objective of w.alfare
State.
"We are no longer living in the laissez faire ........ it is true that social
justice is imponderable and we are asked not to introduce the principles of
social justice in construing legislation that comes for interpretation before
us. But in our opinion, no economic, social or labour legislation can be
considered by the Court without applying the principles of social justice in
interpreting these related provisions of law". 2
The Supreme Court in State of Mysore v. Workers of Gold Mines, 3
observed that the concept of social justice is a living concept of revolutionary
impact; it gives substance to rule of law and meaning and significance to the
ideal of welfare State. In an attempt of do social justice, particularly in
industrial adjudication, the claims of the employer and · the workmen have to
be adjudicated in an impartial, fair and just Manner and this object can best be
achieved by dealing with each problem as it arises from its own circumstances
and merits.
Distributive Justice.-Social justice may be in the form of distributive
justice or corrective justice. Distributive justice seeks to ensure a fair distribution
of social benefits and burdens among the members of the community. For
instance, the manifestation of distributive justice may be found in the
distribution of honour, wealth and other divisible assets of the community
which may be allotted among the members by the law. The object is to secure a
1. State of Haryana v. Dars/ma Devi, AIR 1979 SC 855, per Justice Krishna lycr.
2. Prakash Cotton Mills v. State of Bombay, 19[;7 II LLJ 490 (Born).
3. 1958 II LLJ 479 (SC).

25~ JORISPRUDENCE AND LEGAL THEORY
i
\ punishable under the law. Thus it is evident that the modem administration _of
balance or equilibrium among the members of the society. The concept of social
justice finds expression in Articles 14, 15 and 16 as also Article 39 (b) and (c) of
the Constitution of India which are aimed at lesseJ;ling of inequalities.
Corrective Justice.-Corrective justice is yet another form of social justice.
Salmond observed by applying justice in its corrective sense is the primary
concern of law and courts through the process of adjudication. For instance, if an
employer acts bona fide, in dealing with an industrial worker, his action should
be upheld by the court on the ground of corrective justice. The object is to bring
the erring worke.r on the right path so that he can.be an asset to the industry
rather than a nuisance. Compensation is a form of corrective justice.
Processual Justice
The processual rules of justice based on natural law from the very basis of
not only substantive ju1tice but also remedial justice. These twin principles are
in fact the pillars on which the administration of jusfr:e is founded. They
are =~
(1) No one can be a Judge in his own cause, expressed in the latin maxim
nemo debet esse judex in propria cause ; and
(2) hear the other side (party) also, expressed in the latin maxim audi
alteram partem.
The spirit of these rules of processural justice is embodied in Articles 14,
15, 16 and 311 of the Constitution of India. The Supreme Court has expounded
the core philosophy of processural justice in KRAIP AK'S case 1 of which
natural justice is indivisible and inherent component signifying value of rule of
law in order to prevent miscarriage of justice.
Origin of the Administration of Justice
The administration of justice in modern civilised societies has evolved
through stages. In the early stage when society was primitive and private
vengeance and self-help were the only remedies available to the wronged
person against the wrongdoer, he could get his wrongs redressed with the help
of his friends or relatives. The second stage of development of society was
characterised by the State coming into existence in its n1dimentary form when
its functions were only persuasive in nature. It did not have enforcing power by
which it could punish the wrongdoer. In the third stage of development of
society, wrongs could btl redressed by payment of c9mpensation by the wrongdoer
to the victim who was affected by the wrongful act. Thus upto this time justice
remained private in nature without compulsive force of the State.
In course of time. the State exerted its authority and took upon itself the
responsibility of administering justice and punishing the wrongdoer using its
force whenever necessary. This stage of development showed that there was a
transformation from private justice to public justice through the agency of the
State. In other words, a. wroag done to an individual was no longer treated as a
private wrong but it Was considered as an offence against the State and made
l. A.K. Kraipak v. Union of India, AIR 1970 SC 150.
THE ADMINISfRATION OF JUSfICE 255
justice owes its origin and growth to the gradual evolution of the State and its
political power. In course of time, with the growth of State power, private
vengeance and violent self-help were substituted by the administration of
criminal and civil justice through law courts.
Advantages and Disadvantages of Administration of Justice
Administration of justice through courts of law has now become one of the
important functions of the State. The courts administer justice according to laws
framed by the legislature. The chief merits of administration of justice are its
uniformity, certainity, impartiality . and equality. The Judges Who impart
justice are bound to give their decisions according to the fixed principles of law
and cannot act arbitrarily. The laws being mostly codified, they are known to
the citizens which enables them to regulate their conduct accordingly.
Codification also helps the judges in applying the law uniformly without any
fear or favour.
Despite the aforesaid advantages, the administration of justice suffers
from certain disadvantages also. The main of these disadvantages are rigidity,
formality and complexity of laws. Commenting on the disadvantages of
administration of justice in accordance with the set principles of law, Sir
Salmond observed that law, undoubtedly, is a remedy for greater evil, but it
brings with it evils of its own.
Be that as it may, it must be stated that the advantages of administration
of justice far outweigh its disadvantages and it is an effective media for
establishment of Rule of Law in modem democracies.
Civil and Criminal Justice
Broadly speaking, justice may be of two kinds, namely, civil and criminal.
Blackstone preferred to call them private wrongs and public wrongs. The former
are violations of civil or legal rights of individuals called civil injuries, while
the latter are in the nature of violation of public rights and duties which affect
community as a whole and are called crime or misdemeanours. Thus a crime is a
wrong against the community as a whole ·and is punishable by the State, the
civil wrnng, on the other hand, is an infringement of the legal right of
individual · which does not affect the society in general and is redressible by
monetary compensation.
Again, from the point of view of procedure also civil justice differs from
criminal justice. Apart from the fact that civil justice is administered in civil
courts whereas criminal justice is administered in criminal courts, in the former,
the remedies are sought by the aggrieved parties but in case of crimes, the
criminal proceedings are instituted by the State. In a civil case, the Judge is to
decide whether civil rights of the plaintiff are affected or violated and if so,
whether he is entitled to any relief, but in a criminal trial the magistrate is to
decide the guilt or otherwise of the accused on the basis of evidence before him.
A civil case may result into award of compensation or dismissal of the case but a
256 JURISPRUDENCE AND LEGAL THEORY
criminal trial may result in conviction or acquiA,a1 of the accused. 1 Though
punishment is the prime object of criminal proceedings but in certain cases the
benefit of probation law may be allowed to the offender and he may be released
on probation2 of good behaviour with or without conditions.
It therefore follows that the distinction between civil and criminal
wrongs lies in the legal consequences of the acts. Civil cµ1d criminal proceedings
are administered in different set of forms. A civil proceeding, if succeeds, results
in a decree of a court for the enforcement of the claim of payment of a debt,
award of damages, injunction restitution, specific performance etc. 'A criminal
proceeding, on the other hand, results in infliction of punishment ranging from
sentence of death to a mere fine or binding over the law-breaker to keep peace
or his release on probation after admonition.
Some writers have expressed divergent views about the object of civil and
criminal justice. Some of them think that the object of civil proceedings is to
enforce rights whereas the object of criminal proceeding is to punish the
offender. But this is not necessarily true as in many cases, particularly in case of
juveniles and the first offenders, they are merely admonished or released on
probation rather than being sentenced. So also in case of disobedience of an
injunction order ·of the court, the person may be sentenced to imprisonment
although it is a civil proceeding.
Again, it is generally believed that crimes are more serious and harmful
in their consequences as compared with the civil wrongs. While crimes affect
the public at large, civil wrongs injure only the private individual. However,
there are certain wrongs such as defamation, nuisance conspiracy, deceit etc.
which are both crimes as well as torts, i.e. civil wrongs.
It may thus be concluded that the difference between civil and criminal
justice is not to be considered in terms of nature and consequence of the act but the
legal implications which follow as a result of the act. Though the line of
distinction between civil and criminal justice may be very thin and . even
overlapping at times, yet this distinction has a practical ~mplication keeping
in view the object, method of enforcement and impact on the individual and the
society. The exceptions do not in any way undermine the basic difference
between civil and criminal justice.
Civil Justice
The immediate objects of law are the creation and protection of legal
rights. A right in the strictest sense of the term, is the capacity residing in a
man of controlling, with the assent and assistance of the State, the actions of
others. Iri. jurisprudential terms, legal rights are recognised by law and enforced
by the power of a State. These rights are enforced through administration of
civil justice which consists in the enforcement and protection of rights as
opposed to the punishment of wrongs.
1. Compensation may, however, be awarded to the aggrieved party in certain cases.
2. Sections 4, 5 and 6 of the Probation of Offenders Act, 1958.
THE ADMINISTRATION OF JUSTICE 257
The ·rights to be enforced through administration ·o f civil justice may
either be primary rights or secondary rights. '
Primary and Sanctioning Rights
Primary rights are those rights which do not have the violation of
another right. On the other hand,· a sanctioning right is one which arises out of
the violation of another right. It is also called a remedial right because it
comes into existence consequent to violation of a private right. Thus one's right
not to be libelled or assulted is a primary right but right to obtain pecuniary
compensation on being libelled or assaulted by some other person is a
sanctioning right. Again, a right to fulfilment of a contract is ·a primary right ,._
but right to recover damages for its breach is a sanctioning right.
The enforcement of primary rights is called specific performance wherein
the defendant is compelled to do the very act which has been agreed upon to be
done. Examples of specific performance are proceedings whereby a defendant is
compelled to pay a debt or to perform a contract or restore land or property
. wrongfully taken or detained. It may also include refraining the defendant from
committing or continuing nuisance or trespass or to repay money received by
mistake or obtained by fraud.
In case of sanctioning or remedial right the purpose may be either (i)
imposition of a pecuniary penalty upon the defendant for the wrong which he
has committed, or (ii) providing for pecuniary compensation to the plaintiff in
respect of the damages which he has suffered from the defendant's wrongful
act. In the former, pecuniary penalty is payable to the State while in the latter
the pecuniary compensation is payable to the plaintiff whose right is violated
or to whom the injury is caused.
The second form of sanctioning right.-The right to receive pecuniary
compensation or damages from the wrongdoer may be divided into two kinds-
(i) restitution; and (ii) penal redress. As regards the injured party, i.e.,
plaintiff, these two are the same in their nature and operation, but with
reference to wrongdoer, i.e., defendant, they are very different. In restitution,
the defendant is compelled to give up or restore the pecuniary value or some
benefit which he has wrongfully obtained by causip.g damage to the plaintiff.
The penal redress, on the _other hand, involves not only restoration of all
benefits which the wrongdoer has derived from his wrongful act, but also a full
redress for the plaintiff's loss. Thus in case of penal redress, compensation has a
double aspect, namely, from ,.J~e point of view of the plaintiff it is
compensation and nothing more buffrom the defendant's point of view, it is a
penalty imposed upon him for his wrong doing. 1
Some American realists have argued that keeping asic.~ the cases of
specific enforcement, there is no primary right that another shall perform his
contract, there is simply a sanctioning right that he shall pay damages if he
commits a breach. Therefore, in reality there are only sanctioning rights and n0
primary rights. But the true position is that if one of the parties breaks the .
I. P. J. Fitzgerald: Salmond on Jurisprudence, (12th ed.) p. 103.
258 JURISPRUDENCE AND LEGAL THEORY
contract, the law enforces other party's primatj; right by bringing into play its
sanctioning right to pay damages. Therefore, _to' assert that in reality there are
only secondary rights and no primary rights, is to mistake a right for the
method of its enforcement. · The procedure to be followed in case of a civil suit "is so cumbersome that
Declaration of right .
At times, the petitioner may approach civil Court not for th~ enforcement
of any right but for a declaration that such right exists, though it is presently
not in dispute, but a dispute in regard to it may arise in future. The examples are
declaration of legitimacy of children or nullity of marriage, interpretation of
will etc. · -
Section 42 of the Specific Relief Act, 1963 provides for declamatory right
It authorises the grant of a bare declaration of right if the following conditions
are satisfied : -
(1) declaration must relate either to the plaintiff's legal character or to a
right to property;
(2) the defendant should have denied or be interested in denying the
plaintiff's title is such right.
(3) The plaintiff should not have asked for a consequential relief. If
consequential relief along with declaration of right has seen sought,
the suit would be dismissed.
The Privy Council decision in Ali Khan v. Abdul Ghani,1 must be referred
to as an illustration of declaratory right. In that case, the plaintiff sued for a
declaration o!
his title as Zamindar and no other relief was prayed for. The
bare declaration sought was granted because on the basis of that declaration
the plaintiff could apply to a Revenue Court for enhancement of the rent
payable by Ryots (tenants).
Civil Suits-Causes of Delay
. . Se_ction 9 ~f !he Civil Procedure Code, 1908 (as amended in 1976) defines a
civil s~t. The civil courts in India have the power to try all suits of civil nature
excepting those the cognizance_ of which is expressly or impliedly barred.
These courts can grant declaratory, prohibitory and momentary reliefs.
. . :11~ hie~_arc~y- of Civil Courts includes-(i) Civil Courts of original
JUnsd1ction, (u) Civil Courts of first appellate jurisdiction, (iii) Civil Courts of
second ap~ella~e jur~sdi~tion, an? (iv) final Court of appeal, i.e., the Supreme
_Court. Ordmanly, District Judges Court is the Court of first appeal and High
Court is of second appeal.
The distressing delay in the disposal of a civil suit is a matter of concern
for everyon~. But the procedural formalities involved in inspection, admission
o: ~acts _and mterrogatories are some inevitable hurdles in the quick disposal of
civil suits. Interlocutory applications also contribute to the delay because quite
1. 3 Sarr. 22 g (PC).
THE ADMINISTRATION OF JUSITCE 259
often an interim order continues to be operative almost till the culmination of
the litigation. The superior courts are generally disinclined to interfere with
the decisions of the first Court.
speedy disposal becomes almost impossible. The plaintiff in plaint--nas to
mentioned all the necessary particulars as mentioned in Order 7 Rules 1 to 18 of
C.P.C. and the particulars to be set forth in the written statement (WS) should
be in accordance with Order 8, Rules 1 to 10 of CPC. Much time is wasted in this
formality.
At the evidential stage, there is no time-limit to the number of witnesses
to be examined by the party. Cross examination of witnesses consumes lot of
time.
After the completion of evidence the case comes to the stage of argument.
Repetition of the same facts and citing of voluminous case-law makes the
argument taxing and boring and lawyers generally drag on the case for months if
not years.
Then comes the stage of final judgment which has to he on each and every
issue. This is in the form of 'decree' or dismiss:3.1 of the case.
Many a time it so happens that the plaintiff having no case on merit,
allows the case to be dismissed in default and then resorts to the proceedings for
restoration of the case. Similarly, when defendant party has no real defence,
he allows the case to be decided ex-parte and then applies for setting aside of
the ex parte judgment and decree. These dilatory tactics adopted by the parties
need to be curbed by stem action by the Court.
Frequent adjournments, applications for substitution of heirs of the
deceased:further prolongs the suit. The most troublesome part is the execution of
the decree, particularly, decree for recovery of immovable property and
realisation of money in a money su~J-
Model Rules for Speedy Dispensation of Civil Justice
Amendments in Section 89 CPC were introduced by the CPC (Amendment)
Acts of 1999 and 2002 to provide quic~ dispensation of justice in civil cases by
providing recourse to the Alterative Disputes Resolutions (ADRS). A
committee headed by Justice M. Jagannadha Rao, the then chairman of the
Law Commission of India, was appointed by the Supreme Court to suggest
measures and devise Model Case Management formula for introducing ADR
system in dispensation of civil ca::,es. Mediation, conciliation, arbitration and
negotiation were considered to be most suitable measures for quick disposal of
civil cases by mutual consent and co-operation of the litigant parties. The
Committee submitted its Report in three parts. The first report contained the
consideration of the various grievances relating to amendment of Section 89 CPC
and the second report dealt with mediation and conciliation as ADRs. The
third report contained a conceptual appraisal of the case-management. The
recommendations of all the three reports were accepted by the Supreme Court
 260 · JURISPRUDENCE AND LEGAL THEORY
and. included in its judgment giveri in Salem ~dvocates Bar Association, Tamil ·
. Nadu v. Union of lndia. 1 ._ \ .
- Under the .amended Section 89 of the Code of Civil Procedure; the parties
to a civ_il suit would be offered an opportunity to sort out their problem and
4ispute by resorting to ADRs and it is only when these alternative methods
fail, the case would be finally taken up for hearing for disposal by the civil
court.
Criminal Justice in ~ci~nt India
The main purpose of administration of criminal justice has always been to
punish the 'offender. It is the State which punishes the criminals. PUIUshm.ent
necessarily implies some kind of pain inflicted upon the offender or loss caused
to him for his criminal act which may either be intended to deter him from
repeating the offence or may be an expres~ion of society's disapprobation for.his
anti-social conduct or it may also be directed to refotm and regenerate him and
.at the time protect the society from law-breakers. Whatever be the end of
_criminal justice, the fact remains _that the importance of _punishinent has been
recognised even under the ancient legal systems of the world for the protection
and welfare of the State and its people. Even in ancient India the king was
duty-bound to punish the offender.. According to Manu, danda («) was the
/essential characteristic of law. He argued that "punishment keeps the people
under control, protects them and it remains awake when people are asleep. So
the wise have recognised punishment itself as a form of "dharma".
The concept of dharma governed Hindu life ever since the Vedic age, and
every one from the King down to the common man was -supposed to follow it.
Kautilya's Arthashashtra 2 contained an elaborate account of economic,
political and legal administration in the 4th Century B.C. It desqibes in detail
the procedure to be followed by courts for dispensation of justice, both civil and
criminal. The emphasis was on rationality of punishment. The King could
commute the sentence of the accused if he confessed his guilt or showed
repentance for his offence. The witness indulging in false deposition was
punished as if he himself had committed the said offence .. _
Sentencing was primarily based on crime-situation and crime-causation as
also the character and status of the offender in society. The Arthashastra
mentions an exhaustive list of offences and the fines charged for committing
them. One peculiar feature of the ancient Hindu legal system was that
punishment varied according to the offender's caste or social position and it was
increasingly severe if the offender belonged t 0 the higher caste (Varna).
Where the Judge faultered in proper dispensation of justice and wrongly
punished the offender, he could himself be punished. A person damaging trees,
plants, or forest etc. could be doubly fined.
1. · Writ Petition No. 496 of 2002 decided on August 2, 2005.
2; The Arthashastra of Kautilya consisted of fifteen chapters, 380 shlokas and 4968 sutras and
dealt with a wide variety of subjects like civil administration, criminal and civil justice
system, taxation, revenues, foreign policy, war, defence, etc.
THE ADMINISTRATION OF JUSTICE. 261
_ With the advent of Moghul rules the ancient criminal justice system in·
India was replaced by their owrt system which, in tum was replaced by the
B:ritish model upon which the modem criminaljustice system is based.
Theories of pllIUShment
Various theories are advanced in justification for punishing the offenders.
The views regarding punishment also kept on changing with the changes in
societal norms. They have been reflected in the form of different theories of ·
.I
. punishment.
1. Deterrent Theory
The main object of punishment is to make commission of ~ offence an ill-
bargain for the offender and deter others from committing crimes. As Salmond
rightly puts it; "punishment is before all things deterrent and the chief aim of
law of crime is to make. the evil-doer an example and a warning to all that are
like minded with him".1 Considered from this point of view, punishmentis a
means of attaining social security as it seeks to protect the society by deterring
potential offenders. Salmond asserted that offences are committed by reason of
a conflict of interests of the offender and the society. Punishment prevents such
offences by destroying the conflict of interests by making acts which are
injurious to others as injurious to the doer himself. This end of criminal justice is
achieved by inflicting severe punishment on the offenders. The deterrent
theory, therefore, justifies exemplary punishment because it not only dissuades
the offender from repeating the crime but also deters others from indulging into
such criminal activities. G.W. Paton also supported this view and .observed
that deterrent theory emphasises the necessity of protecting.society by treating
offenders in a manner so that others are deterred from law-breaking~ .
It is significant to note that deterrent theory of punishment was supported
by ¥anu~ the great law-commentator of ancient India. He treated punishment
or da_nda, as the source of righteousness because people are refrained from
com.:tnitting wrongful acts through the fear of punishment. Most penal systems
l made use of deterrent theory as the basis of their sentencing mechanism till
early nineteenth century. Particularly in case _of England, punishments were
more severe and barbaric in nature. In India also inhuman punishments such as
mutilation, beheading, flogging, branding etc. were in · vogue till the end of .
eighteenth century. ·
The advocates of deterrent punishment hold that 'fear' in the mind of
perpetrator of crime and the consequences that could befall on him desuades
him from committing the crime. Justice Holmes opposed this theory on the
ground that it was immoral inasmuch as it lays down no definite measure of
punishment except the subjective opinion of the Judge.
The critics of deterrent theory argue that it has proved to be ineffective in
restricting crimes. Even during the reign of Queen Elizabeth who was a staunch
- supporter of deterrent theory and awarded severest punishment to smallest
1. Salnwnd on Jurisprudence edited by P.J. Fitzgerald, (12th -Ed.), p. 94.

262 JURISPRUDENCE AND LEGAL THEORY
\ therefore, harp upon infliction of bodily _p ain and suffering, imprison~ent, ·
offences such as pick-pocketing, offences were'·,rampant and pickpockets were
seen busy in their criminal activity among the crowds which gathered to watch
the execution of condemned pickpocket. This indicates the futility of deterrent
theory of punisruhent. Undoubtedly, the rigour of deterrent _P':1nis~ent a~ts ~s
a sufficient warning to the offenders and also to others but 1t mvanably fails m
case of hardened criminals. The ineffectiveness of deterrent punishment is
further evinced by the fact that quite a large nu~ber of hardened criminals
return to prison soon after their release. They seem so much used to prison life
that they have lost all interest in leading a normal life in society. Thus the
object underlying deterrent is unquestionably defeated.
-- endured, the debt is paid, the liability extinguished, innocence is substituted
It must, however, be added that de~pite being harsh and cruel in nature,
deterrence as an end of punishment has not been completely eliminated from the
modem sentencing models. It may be justifiable when the offence is deliberate,
pre-planned and barbaric and a menace to the safety and security of the society.
Particularly, in cases of anti-national conspiracies, communal violence and
multiple murders, deterrent punishment would meet the needs of justice.
2. Retributive Theory
In primitive societies punishment was mainly retributive. It was regarded
as an end in itself. According to this theory, evil should be returned for evil
without any regard to consequence. The theory is based on the rule of natural
justice which is expressed by the maxim "an eye for an eye and a tooth for a
tooth". The theory therefore, emphasises that the pain to be inflicted on the
offender by way of punishment must outweigh the pleasure derived by him
from his criminal act. Thus the retributive theory suggests t~at punishment is
an expression of society's disapprobation for the offender's criminal act.
It has been rightly pointed out by Sir Walter Moberly that the "drama of
wrong doing and its retribution has indeed been an unending fascination for the
human mind." 1 He further suggests that retributive punishment serves to
express and satisfy the righteous indignation with which a healthy minded
community regards transgression as an antisocial behaviour.
It is however, questionable whether retribution can be justified on the
ground of social policy. The theory of retribution owes its origin in the crude
animal instinct of individual or group to retaliate when hurt and therefore, its
approach to offender is vindictive and out of tune with the modern reformative
concept of punishment.
Those who support retributive theory claim that punishment is the
appropriate moral response to criminal acts because the perpetrators of crime
deserve to be punished. On this issue, it shares a common view with deterrence
theory which also defends punishment as morally just and that the severity of
the punishment inflicted upon the offender should be in proposition to the
gravity of the crime for which he has been found guilty. The retributivists,
:!.. .:,11 • ✓alter Moberly: The Ethics of Punishment, (1968), p. 27.
THE ADMINISrRATION OF JUSTICE 263
deportation and even the death sentence which renders the theory irrational,
revengeful and unjustifiably barbaric.
Closely connected with the idea of retribution is the notion of expiation
which means blotting out the guilt by suffering an appropriate punishment.
This in other words means, that guilt plus punishmentis equal to innocence. The
philosophy underlying expiatory theory is that to suffer punishment is to pay
a debt due to the law that has been violated. As Salmond rightly puts it,
"revenge is the right of the injured person. The penalty of wrong doing is a debt
which the offender owes to his victim, and when the punishment has been
for guilt, and the vinculum jusris forged by crime is dissolved. The object of true
redress is to substitute justice for injustice." 1 The practical utility of the
expiatory theory qmnot be undermined as it is an expression of refinement and
purification of the criminal by self-motivation which ultimately .gives him
satisfaction that his guilt has been washed off a,:id he is relegated to a position
as if he had ·done no wrong. Expiation in the form of penance occupied an
important place in the ancient Indian penology.
3. Preventive Theory
The preventive theory is founded ort the idea of preventing repetition of
crime by disabling the offender through measures such as imprisonment,
forfeiture, death punishment, suspension of licences etc. G.W. Paton suggests
that preventive theory seeks to prevent the prisoner from committing crime by
disabling him, This theory does not lay much emphasis on the motive of the
wrongdoer but seeks to take away his physical power to commit the offence. It
pre-supposes that need of punishment for crime arises simply out of social
necessities. In punishing a criminal, the community protects itself against anti-
social acts which endanger social ~rder in general. Commenting on preventive
theory of punishment, Fichte observed, "the end of all penal laws is that they
are not to be applied. Thus when a land owner puts a notice "trespassers will be
prosecuted", he does not want an actual trespasser and to have the trouble and
expense of setting the law in motion against him. He hopes that the threat
will render any such action unnecessary, his aim is not to punish for trespass but
to prevent it. However, if trespass still takes place, he shall undertake
prosecution of the trespasser. Thus the real object of the penal law is to make
the threat generally known rather than putting it occasionally into execution.
This indeed makes the preventive theory realistic and humane. It is effective
for discouraging anti-social conduct and a better alternative to deterrence or
retribution which now stand more or less discarded as methods of dealing with
crime and criminals."
In England, the preventive theory was supported by utilitarian law-
reformers because of its humanising influence on penal law. In their view, it is
the certainty of law and its severity which has a real effect on offenders. The
1. Salmond on Jurisprudence, (12th Ed.), p. 100.
264 JURISPRUDENCE AND LEGAL THEORY
development of the .institution of prison is ~ssentially an outcome of the
preventive theory of crime. It pre-supposes some kind of physical restraint on
the offenders. According to this theory, murderers are hanged not merely to
deter others from meeting similar end but to eliminate such dreadful offenders
from the society.
Preventive theory has been criticised by Kant and others who argue that
merely by awarding a term of imprisonment and sen.ding the offender to jail is
not going to reduce crime unless some reformative efforts are made to integrate
him in the main stream of the society through the process of rehabiHtation.
4. Expiatory Theory
As a matter of fact, expiatory theory being solely based on morality, has
litle to do with law or legal concepts. Therefore, many jurists refuse to accept it
as ·a legal theory of punishment. This theory is more related to ancient religious
perceptions rgarding crime and punishment when prisoners were placed . in
isolated cells to repent or expiate for their crime or guilt from the core of their
heart and resolve to shun crime. It was believed that anyone who sincerely
repents for his misdeeds or crimes, deserves that among who sincerely
represents for his misdeeds or crimes, deserves to be forgiven and let off. The
ancient Hindu law commentator Manu was a great admirer of expiation· as a
form of punishm~nt for the rehabilitation of the criminal in the society.
The expiatory theory, being based on ethical considerations, has lost its
relevance in the modern system of punishment. In the present age of
materialism and declining moral values, expiation can hardly be effective in
bringing about a change in the criminal mentality of offenders and therefore,
expiatory theory as a punishment is not suited in the present context of
rationalised penal policies.
5. Reformative Theory
The reformative theory of punishment emphasises on reformation of
offenders through the method of individualisation. It is based on the
humanistic principle that even if an offender commits a crime, he does not cease
to be a human being. Therefore, an effort should be made to reform him during
the period of his incarceration. While awarding the punishment, the Judge
must take into consideration the age and character of the offender, his
antecedents and also the circumstances under which he committed the criminal
act. Thus as opposed to deterrent theory, the reformative theory aims at
socialisation of the offender so that the factors which motivated him to
commit the crime are eliminated and he gets a chance of leading a normal life
_-!
in the society. The theory is based on the principle, hate the sin and not the
sinner'.
It must be noted that reformative theory shows a radical departure from
the earlier theories and seeks to bring about a positive change in the attitude of
the offender so as to rehabilitate him as a law-abiding member of society, Thus
punishment is used as a measure to reclaim the offender and not to torture him.
THE ADMINISTRATION OF JUSfICE 265
The theory therefore, condemns all kinds of corporal punishments. The major .
thrust of the reformist theory is rehabilitation of inmates in penal institutions
so that they are transformed into law abiding citizens. It focuses greater
attention on humanly' treatment of prisoners inside the prison. It suggests that
instead of prisoners being allowed to idle in jail, they should be properly
taught, educated and trained so as to .adjust themselves to normal life in the
community after their release from the .penal institution. This purpose may be
achieved through the agencies of parole. and probation which have been
accepted as modem techniques of reforming the offenders all around the world.
The ·reformative theory suggests that punishment is only justiciable if it
looks to the future and not to the past. It should not be regarded "as setting an
old account but rather as opening a new one." Thus the advocates of this theory
justify prisonisation not solely -for the purpose of isolating criminals and
eliminating them from the society, but to bring about a change in their mental
attitude through effective measures of reformation during the term . of their
sentence.
Undoubtedly, the modem trend is in favour of reformative justice but there
is a strong feeling that the method should not be stretched too far. The
reformative methods have proved useful in cases of juvenile delinquents, first
offenders and women. Sex-psychopaths also seem to respond favourably to the
reformative method of punishment. But hardened and professional offenders
hardly respond favourably to reformative ideology because they are
incorrigible offenders with whom crime is not so much a bad habit but it is an
ineradicable instinct in them. For such offenders, deterrent punishment is
perhaps the only alternative. Commenting on this aspects of punishment,
Salmond observed that although general substitution of reformation in place of ·
deterrence may seem disastrous, ·it is possible and desirable in certain cases
specially for abnormals and degenerates who have diminished responsibility .1
It therefore, follows that punishment should not be regarded as an end in itself
but only as a means, the end being the social security and rehabilitation of
offenders in society. Considered from this point of view, the importance of the
deterrent element in criminal justice system should not be overlooked, but at the
same time it must not be allowed to assume undue prominence. How much
prominence it may be allowed is a question of time, place and circumstance. 2 .
The focal point of reformists view is that an effort should be made to
restore the offender to society as a good and law-abiding citizen. The theory
believes that if persons of doubtful characters are given proper education and
training in such a manner as to enable them to earn their livelihood by honest
means, they would shun adopting foul methods for their subsistence. But
Oppenheim has criticized this view stating that reformative approach would
deprive punishment of its sting or painful effect and if criminal is looked upon
·as an object of pity, not of hatred, punishment would become a work of charity. 3
1. Salmond on Jurisprudence, (12th Ed.), p . 97.
2. Salmond on Jurisprudence, (12th Ed.), p. 97.
3. Oppenheim: Rationale of Punishment, (1975), p. 245.
 266 JURISPRUDENCE AND LEGAL THEORY
' i
Turner also opposed reformative view and ~eld that punishment to be
effective, must be unpleasant and detrimental in effect on the offender.
It is significant to note that the authors of ~en.can Study also criticised
reformative theory saying, "it never commanded more than a lip servke from
most of its more powerful adherents. The prison administrators who embraced
rehabilitative idea, have done so because it increased their power over
inmates." 1 ' monetary compensa
It is well known that punishment carries with it a stigma inasmuch as it
fetters the normal liberty of the prisoner. It has become an integral part of law
enforcement for securing social control. More recently, the reformative theory is
being extensively used as a method of treatment of mentally depraved
offenders. The present trend is to treat the offender rather than to punish him.
This is done by classifying offenders on the basis of age, sex, gravity of offence
and mental depravity. Thus clinical method pre-supposes punishment as a kind
of social surgery since crimina I is essentially a product of conflict between
interests of individuals in the society.
The deterrent, retributive, preventive and reformative theories of
punishment have their own merits and demerits but unfortunately none of them
takes notice of compensation which should be paid to the victim of the crime.
The modern view is that punishment must not be merely to prevent further
occurrence of crirr•e but it must also seek to compensate the victim of crime. The
contention is that 'the mainspring of criminality is greed and if the offender is
made to2return the ill-gotten benefits of crime, the spring of criminality would
dry up." In recent years, the Supreme Court of India has awarded compensation
to victims who suffered due to torture or negligence by the prison or jail
authorities.3
The Supreme Cotlrt in T.K. Gopal v. State of Karnataka, 4 focussing on the
need to reformation of criminals through therapeutic approa~h, observed:
"The law requires that a criminal should be punished and the
punishment prescribed must be meted out to him, but at the same time,
reform of the cril'hinal through various processes, · despite he having
committed a crime, should entitle him to all the basic rights, human
dignity and human sympathy."
The Court held that there have been a catena of cases wherein the need.
for prison reforms ha.s been reiterated keeping in view the fact that the
prisoner who is lodged in jail does not lose his fundamental or basic rights and
that he must be treated with compassion. 5
1. Kamenka & Brown: Ideas & Ideologies of Law & Society, p. 112.
2. Mahajan, V. D. : Jurisprudence & Legal Theory, (5th ed.) p. 147.
3. Sabestian Hongrey v. Union of India, AIR 1984 SC 1026; Bhimsingh v. State of Jammu & Kashmir,
AIR 1986 SC 494; R.udu/ Shah v. State of Bihar, AIR 1983 SC 1986; Smt. Neelabati Behra v. State
of Orissn, AIR 1993 SC 1960.
4. AIR 2000 SC 1669 (16:14).
5. Francis Coralie Mullin '1. Administrator U. T. Delhi, AIR 1981 SC 746.
1HE ADMINISTRATION OF JUSTICE 267
The A x Court in D.K. Basu v. State of West Bengal 1 held that custodial
dpeth · the lock-up· strike~ a blow at t})e rule of law and therefore,
torture
th c or rt ea m
en recommended ·
a change in the law o f ev1'dence t o throw the onus
one th~u 0 : : or jan" authorities as to how a prisoner in their custody ca~e to
t tf death under suspicious circumstances. 2 The Court has prov1~ed
mee e tion to the victims of police excesses in several cases. In
• d h'l · a
th f Ashok Kumar4 who succumbed to ~juries sustame w _1 e carrying
10:Ja:: :;,,e behest of the Roorkee Sub-Jail authorities, the National Human
Ri hts Commission directed U.P. State government to pay one la~ rupees to
hisg parents as compensation and issu~d guidelines that an under-tnal cannot be
put to hard task.
In view of .the rising incidences of violence and torture in police or jail
tod there is dire need for the authorities of these departments to do some
:-:os~ction and try to improve their tarnished image. They must realise that
they are not above the law. ·
It must, however, be stated that no single theory wou~d serve the interest
of criminal justice administration. Undoubtedly, reformative theo~ must be
given due importance but at the same time the deterrent and preve~hve aspect
of unishment must also not be completely ignored. Thus reformation may be
us:d as a general method of treating the offenders but those who do not re~pond
favourably to the corrective method of treahnen~ m~st be severely p~rushed.
The penal measures must be directed to show society s abhorr~nce t~ cnme. ~n
ideal penal policy should resort to reformation in case_ o~ JUVeml~s or f1r~t
ff d and deterrence for recidivist and hardened cnmmals. It 1s for tlus
oreason
en ers
that modern penologists give more importance to ms. t'tuti
1_ ona1 methods
of treating the offender rather than resorting to the conventional met~ods of
punishment which have now become obsolete and outdated. The pums~ent
should be directed to minimise suffering to offenders and at the s~me time
develop social morals and discipline among citizens. In other wor~s, 1t should
neither be intolerably severe nor unrealistically lenient. Furt~er, 1t m_ust also
be borne in mind that penal policy reflects the societal reaction to cnme a~d
therefore the motive for punishment shall largely depend on the social
tructure ~d accepted norms and values of a given society. The need of the d~y
~IS fO r a rehabilitative programme for all inmates . with a substantial
diminution in the use of imprisonment and incarceration.
The Concept of Restorative Justice
A new approach to crime and punishment thro:1-gh the proc_ess ?f
mediation between the offender and the victim of his crime was adopted m
1. 1997Cr.L.J.743. .
z. State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416. . l)
9
3 Saheli v. Commr. of Police, Delhi, AIR 1990 SC 51~; State of Maharashtra v. Ravzka~Jvi~~i~a v2
· SCC' 373. State of Andhra Pradesh v. Challa Ramktshna Reddy, AIR 2000 5 \~3c: .
State of Rajasthan, 2001 Cri LJ 4484 (Raj) ; ]oginder Kumar v. State of U. P., n
LJ
198
j
(SC) etc.
4. Reported in Hindustan Times dated December 17, 1997.

268 . JURISPRUDENCE AND LEGAL THEORY
U.SA. and Western European countries during mi~ 1'97Qs. It was termed as and
'Victim-Offender Mediation' (VOM). The process 'involved meetings between
victims, offenders · and mediators offering opportunity to the . offender to
explain his conduct or apologise to the victim. Tne family members of the
offender and/ or the victim and community members could also be present in such
mediation meetings. The victim gets a chance to explain how he/she was
mentally, materially 01· physically affected as a consequence of the crime and
the offender gets an opportunity to respond and restore justice to the victim.
The system of .restorative justice has advanced criticism from certain
quarters alleging that it grossly lacks punitive element and therefore, is
contrary to the basic principle of sentencing · which necessitates infliction of
harm on offender that fits his crime. Critics also feel that ·the outcome of any
VOM process would depend upon the personalities and mental frame of the
victim and the offender, and therefore, it' would lack rationality. It is also
alleged that the restorative approach would virtually tum criminal justice
into civil justice because of the absence of punitive response. It is for these
reasons that the system has not been accepted in India.
Reformative Techniques in Juvenile Justice
The early criminal justice system did not recognise any distinction between
adult and juvenile offenders so far punishments were concerned. It is only with
the popularity of reformative theory of punishment,. it was realised that the
youngesters between a certain age-group should be differently treated in the
matter of punishment because they are easily attracted to temptations of life
and thus lend into criminality without any real intention of committing a crime.
It is with this purpose that most countries are now tackling the problems of
juvenile delinquents on priority basis setting up separate juvenile courts or
Boards to deal with young offenders and the procedure adopted in these courts
or Boards radically differs from that of a regular trial court.
In India, the first attempt to separate juvenile· offenders from adult
prisoners was made in 1890 when Reformatory Schools Act was passed. The
young offenders were lodged in these institutions which imparted industrial
training to them for their rehabilitation. The Act aimed at preventing
the young offenders from becoming hardened or professional criminals in
future.
. The Reformatory Schools Act, 1890 was subsequently amended and was
finally replaced by the Children Act, 1960. This Act too was amended in 1978
and finally replaced by the Juvenile Justice Act, 1986 which was a
comprehensive law on trial, rehabilitation and reformation of juvenile
delinquents. The Act was based on two fundamental resumptions, namely, (i)
young offenders should not be tried but should rather be corrected, and (ii) they
should not be punished but treated. The Act provided for Juvenile Welfare
Boards and Juvenile Courts for care and trial of juveniles. It also empowerd the
State Governments to establish Juvenile Homes for the reception of neglected
juveniles and observation Homes for the custody of delinquent juveniles.
Ti-IE ADMINISTRATION OF JUSTICE . 269
Ho~ever, consequent to the ·p assing of ~e U.N . .Convention on the Rights
of t?e Child on 20th November, 1989 which was ratified by the Government of
India ~s a memb~r party on 11th December, 1992, the standards prescribed by
the said convention had to be adopted. Therefore, a new Act entitled Juvenile
Justice (Care & Protection of Children) Act, 2000 was passed which came into
force on .1st April, 2001 replacing the earlier Juvenile Justice Act, ·1986. The
main feature of the Act is that the cases of juvenile delinquents are now to be
handled by the Juvenile Justice Board1 instead of Juvenile Court. Even the term
"juvenile delinquent" has . been dropped and they are now to be known as
"Juvenile in conflict with law." 2 Under this Actt a 'juvenile' or 'child' means a
person (boy or girl) who has not completed eighteenth year of age.3
There are at present a number of Children Homes, Observation Homes,
Borstal Institutions and Reformatories functionirig throughout India where
adequate educational and vocational training is imparted to young offenders
who are committed by the Juvenile Justice Boards. The States have also
established After-care Associations and Child-Aid Societies for
rehabilitation of young offenders who need care and protection after th~ir
release from Homes, Barsals or Reformatories. .
A unique feature of the Juvenile Justice (Care and Protection of •Children)
Act, 2000 is community service as an alternative to traditional means of
imprisonment or fines. 4 The juvenile found guilty of an offence is to serve out his
s~ntence by working for the welfare of the community which helps in making
him/her self-reliant and co-operative with fellow workers. These offenders
are booked for community service for a specified period and if they serve ·this
period out clean, they are let off in free society. ·
In fact, it would •be worthwhile to implement community service as an
alternative to traditional imprisonment in case of adult offenders as well, who
are convicted for minor offences which do not have any adverse affect on the
security of the society. The system has been successfully operating in U.S.A. for
the last so many years.
Release of offenders on Probation
The release of offenders on probation is yet another reformative technique
devised as an alternative to coventional incarceration of offenders in prison. In
this techniques the offender is released on probation with or without conC:itions
and is allowed to live in the community for his self-rehabilitation. Thus
·probation implies postponement of final sentence of a convicted offender for a
certain period of time so as to enable him to have an opportunity to corrects his
conduct and readjust himself in the community. His release on probation may be
on condition that he may be placed under the guidance or supervision of a
1. Section 4 of Juvenile Justice (Care & Protection of Children) Act, 2000.
2. Section 2 (1). ·
3. Section 2(K). In the earlier Juvenile Justice Act,1986, this age was 16 years for boys and 18
years for girls.
4. Section 15 of the J .J. Act, 2000. The Act has further been amended in 2006.
 270 JURISPRUDENCE AND LEGAL THEORY
Probation Officer. The law relating to Probat~n of. Of~enders in India_ is
contained in the Probation of Offenders Act, 1958 which 1s a comprehensive
legislation on probation law.
·. Spelling out the object of the release of offenders on probation, the
· Supreme Court in Ramji Missar v. State of Bihar1, observed:
"The purpose of release of youthful offenders on proba?on is t~ s!op
their conversion into stubborn criminals as a result of their asso~1a~on
with hardened criminals of mature ~ge ......... Modern cnmmal
jurisprudence recognises that no one is born criminal arid that a good many
crimes are the result of socio-economic milieu. Although ~ot much can ~e
done for hardened criminals, yet a considerable emphasis has been laid
on bringing about reform of young offenders w~o ~re not. guilty of very
serious offences by preventing ; their association with hardened
criminals".
Briefly it may be said that probation is a reformative technique of
treatment ~d rehabilitation of young offenders. It is a conditional suspension
of sentence of the offender as a substitute for punishment.
Parole
It is generally believed that a prisoner who is released fro~ pr~s~n is a
danger to society. Ex-prisoners are generally shunned, feared and d1s~rumnated
and thus they are compelled to become more wicked rather than _bemg he~ped
to lead an upright life. In order to obviate this situation,~ corrective t~chnique
known is parole .has been devised to provide an opportunity for_the ~nsoner to
rehabilitate himself in the society on a promise to return to pnson m case he
breaks the law. Thus parole is the release of a long-term prisoner fro~ a ~enal
institution after he has served a part of his sep.tence (generally 1/3) 111 pnson-
custody and on condition that he shall return to the prison to undergo th~
unexpired sentence in the event of misbehaviour. 2
In may be stated that parole is a selecti_v~ release o~ prisoners who show a
tendency to reform during the period of their mcarcerahon. The grant of par~le
is quasi-judicial function performed by the Parole Board. Before recommending
a prisoner's release on parole. the Board has to ensure that the parolee has a
suitable abode to live in and a job to do.
Although both parole and probation are based on the principle of
individualisation of treatment of offenders and include a programme of .
guidance, assistance and surveillance of the delinqu:nts, yet the two differ ~
many aspects. The difference between the two may bnefly be stated as follows .
(1) Probation owes its origin to John Augustus of Boston (USA) around 1841
whereas parole came into existence much later somewhere around 1900.
(2) The decision as to release of an offender on probation is taken by the
court and therefore, it is a judicial function while release of a prisoner
I. AIR 1963 SC 1088.
2. Sir Robert Gross: The English Sentencing System, p . 33.
THE ADMlNISTRATI~N OF JUSTICE 271
· on parole is decided by the Parole Board and hence it is a quasi-judicial
in nature.
(3) A prisoner ~an b~ release~ on parole only after he has also served a part
of sentence m pnson, but m case of probation no sentence is imposed or if
imposed, it is not executed.
(4) It has been rightly pointed out by J.L. Gillin that probation is probably
the first stage of correctional scheme, the parole being the last of it.
(5) As rightly suggested by Dr. Sutherland, an offender released on
probation is considered as if he is undergoing a correctional treatment
because he is under a threat of being punished if he violates any of the
conditio~s of probati~n, but a parolee is considered to be in custody
undergoing both punishment and treatment while under threat of return
to the prison from which he was released.
(6) Probation and parole also differ from the point of view of
stigmatisation or disqualification attached therewith. There is no
stigma or disqualificati0n attached to an offender who is released on
1
p~obati~n _ of good con~uct but a prisoner released on parole suffers
stigmatisation as a convicted criminaI.2
Forms of Punishment
It is well known that punishment is one of the oldest methods of
controlling crime and criminality. However, variations in modalities of
punishment, namely, severity, uniformity and certainty are noticeable because
of v_ariations in general s~cietal reaction to law-breaking. In some societies
punishments may be relatively severe, uniform, swift and definite while in
others it may not be so. This accounts for variations in use of specific methods of
punishment.
~s state~ ~arli~r, J:>rimitive societies did not have w~ll organised
agencies of crm:imal JUShce administration, therefore settlement of private
wrongs was entirely a personal matter and aggrieved party could settle the
issue directly with the offender. Blood-feud was one of the common modes of
punishment in early societies which was regulated bv customary rules of
3
proce~ure. It was a retaliatory method based on the p;inciple of retribution.
Sometimes these blood-feuds led to serious clashes between clans which made
life ~xt~emely ~is~rable. In course of time, blood-feuds were substituted by
reshtuhon_ for m1ury through monetary compensation. The quantum of
compensation, however, depended on the nature and gravity of the offence and
age, sex or status of the victim.
With the march of time, primitive societies transformed into civil
societies and the institution of kingship began to exercise its authority in
1. · Section 12 of the Probation of Offenders Act, 1958.
2. ParanjapeN.V., Dr: Criminalogy and Penology (Delux Ed) 2008 pp. 453-54.
3. Barnes & Teeters: New Horizons in Crimi1wlogy, (3rd Ed.} p. 287.
272 JURISPRUDENCE AND LEGAL TI-IEORY
l
. \
settling disputes. As a result' of this, private vengeance fell into disuse giving
rise to public disposition of wrong-doers. With ~he state assuming charge of
administration of criminal justice,·definite forms of,punishment were deviced to
handle various offenders . .
In early penal systems of most countries, punishments were generally
torturous, cruel and barbaric in nature. It was tpwards the beginning of
nineteenth century that humanitarianism began to exert its influence on judicial
sentencing emphasising that severity should be kept to a minimum in the
criminal justice system.
The common modes of punishment pr~valent in different parts of the world
included corporal punishments such as flogging, mutilation, branding pillories,
chaining the prisoners together, simple or rigorous imprisonment, forfeiture of
property, fine and death penalty. They ate briefly summarised as follows:
1. Corporal Punishment.-This punishment was very common till late
eighteenth century. It included flogging (whipping), branding, mutill;ltion,
chaining etc.
(i) Flogging.-In India, whipping was recognised as a mode of punishment
under the Whipping Act, 1864 which was repealed and replaced by a similar
Act in 1909 and finally abolished in 1955. Flogging or whipping was being used·
as a common mode of punishment in middle-east countries till recent years. The
instruments and methods of flogging, however, differed from country to country.
Some of them used straps and whips with a single lash while others used short
pieces of rubber-hose. Experience has shown that whipping as a mode of
punishment had hardly proved effective. It did not serve any useful purpose in
case of hardened criminals and recidivists. However, it proved effective in case
of minor offences like eye-teasing, drunkenness vagrancy etc.
(ii) Mutilation.-It was also a common form of corporal punishment. It
was known to have been in practice in ancient India during the Hindu period. In
case of theft, one or both the hands of the offender were chopped off and in case
of sex-offence his private part was cut-off. The justification advanced in
support of mutilation was that it served as an effective measure of deterrence
and prevention. This mode of punishment has also been completely discarded
being barbaric in nature. As observed by Sir Samuel Romilly, such punishments
have an inevitable tendency to infuse cruelty among people.
(iii) Branding.-Branding as a mode of punishment was commonly used in
oriental and classical societies. Roman criminal law supported this mode of
punishment and criminals were branded with appropriate mark on their
forehead so that they could be easily indentified and permanently subjected to
public ridicule. In England branding was practiced till 1829 when it was finally
· abolished by an Act of Parliament. The system was in vogue in America as well.
Particularly, blasphemy was.made punishable with branding the letter "B" on
the forehead. In India, branding was prevalent during the Moghul rule in its
crudest form.
THE ADMINISTRATION OF JUsrICE 273
(iv) Chaining, etc.-Chaining the offenders together was also commonly
used as a-mode of punishment. Their liberty and mobility was thus completely
restricted. The hands and legs of criminals were tied with iron rods and
chained together. This method is now being sparingly used in the present prison
system.
(v) Pillory.-Pillory was yet another form of cruel and barbaric corporal
punishment which was in practice till early 19th century. This type of
punishment was also called poetic punishment-though it was more aften used in
fiction than in poetry. Th~ offender was brought in public place for the
execution of the sentence. He could even be publicly stoned if offence was of a
serious-nature. Pillory is still used as a mode of punishment for sex-offenders in
Islamic countries which take offences against women very seriously.
The system of pil-lory existed slightly in different form during the Moghul
rule in India,. The hardened and dangerous criminals were nailed in walls and
shot or stoned to death. Public hanging of murderers was common even during
the British colonial rule in Iridia~ The execution of death sentence by public
hanging in Indiawas reportc.!clly was held for the last time in 1976 and now this
· mode of punishment has no place in modem sentencing policy. Now prisoners
condemned to death are hanged inside jail premises as public hanging is
strictly banned.
2. Fines and Confiscation of Property.-The offences not serious in nature
were punished with fine. This mode of punishment was especially used for
offences involving breach of traffic rules and revenue laws. It is considered as an
appropriate punishment for minor offences and crimes relating to property.
Financial penalty may either be in the form of fine or compensation or costs.
The real problem involved in imposition of financial penalties is the
quantum of fine or costs and enforcement of its payment. The usual methods of
enforcement are forfeiture of property1 and threat of incarceration. 2 Recovery of
fine from the source of income of the offender may also be one of the best
methods of enforcing this penalty. In fixing the amount of fine or pecuniary
penalty, financial condition of the offender is generally kept in mind.
Imposition of exorbitant amount by way of fine may frustrate the cause of
criminal justice. A part of fine may be paid as a compensation to the victim for
the injury caused to him on account of crime.3 ·
Security Bond.-A security bond for good behaviour though strictly not a
punishment, may serve a useful purpose as a form of restraint on the offender. It
offers an opportunity to the offender to reform himself into a law-ab:Jing
citizen and chances of his rehabilitation are better than those who are
subjected to prison sentence. That apart, the dependents and family members of
offender are not adversely affected by releasing him on security bond.
1. Sections 125, 126, 127 and 169, I.P.C.
2. Nigel Walker: Sentencing in a Rational Society, (1972) p. 105.
3. Section 357, Code of Criminal Procedure, 1973.
 274 JURISPRUDENCE AND LEGAL THEORY
3. Deportation.-The deportation of critjlinals is also called banishment.
Incorringible and hardened criminals were gerlerally deported to far-off places
with a view to eliminating them from the community. In England, war-
criminals were usually transported to distant Au~tro-African British colonies.
The practice of deporting political offenders was commonly in vogue in
British India. It was popularly known as 'Kalapani' _(c:fiil1iq1.fl), and such
offenders were despatched to remote island of Andaman and Nicobar. This
mode of punishment involved transportation· of criminals beyond seas and
therefore, had a psychological effect on Indians because in those days going
beyond seas was .laoked with disfavour from the point of view of religion and
resulted into out-casting of the offender. 1 The practice was finally abolished in
1955. However, it still persists in mini-form popularly called as 'externment'.
The object of extemment of offender is to disassociate him from his surroundings
so as to reduce his capacity to commit ci.j.me. This form of punishment has been
incorporated in the penal law of India. 2 The habitual or notorious criminals are
quite often extemed from the territorial limits of the district in which they
operate by an order of the District Magistrate.
4. Imprisonme_nt.-Imprisonment which may either be simple or rigorous,
represents a most sunple and common form of punishment which is used all
around the world. It is an effective method of incapacitating the offenders. It
also ensures !~mporary elimination of criminals apart from having a deterrent
effe_ct. Cond1ho~s of itnprisonment in civilised countries have undergone
ra~1cal changes m recent decades. Alternative devices such as open jails and
prison hostels are being extensively used as modified form of prisons for
incarceration of offenders. · than minimum prescribed by the aforesaid Act, i.e., imprisonment for one year.
. . Despite being a preventive measure, the most intricate problem involved
In imprisonment as a measure of punitive reaction to crime is the
"I?risonisation" of offenders. The prisoner takes considerable time to adapt
hrmself to new norms and values of prison life and in this endeavour he loses
his indentity and is often reduced. to a mere impersonal entity. ' deserved no consideration. Though the delay involved in the case was relevant
. Yet another devastating effect of imprisonment as a mode of punishment is
its adverse effect on family life of the offender. The offender loses contact with
the members of his family and if he happens to be the lone bread-winner the
r~sult ~s stil~ ~orse. The members of his family suffer misery, starvation' and
fmanc1al cr1s1s. At times, they break ties with the offender and out of
desperation are compelled to lead a promiscuous life.
f doubt be the reformation of the offender but the importance of imprisonment as
. _The Supr~me Court of India has pointed out the dangers of long term
rmpnsonment m a number of cases and suggested reduction in the term of
sentence in approp~ate cases.3 In deciding tl,e term of imprisonment the nature
of the offence, the circumstances in which the offence is committed, the age and
1. Gaur, H.S.: Penal Law in India, Vol. 1 (1972) p. 380.
2. Clause 19 of Indian Penal Code (Amendment) Act, 1972.
3. Nadella_ Ven'"!n~kri~hna Rao v. State of Andhra Pradesh, (1978) 1 SCC 208; see also Ashok Kumar
v. Delhi 4dmm1strat1on, (1980) 2 sec 282.
THE ADMINISTRATION OF JUSTICE 275
character of· the accused and the .consequences of his criminal. act should be
taken into consideration.1 The case of A. Wati Ao v. State of Manipur 2 may be
cited to illustrate this point further.
In the instant case, the accused, an IAS officer was charged with misuse of
office u/s 5(1) (d) of t..1-te Prevention of Corruption Act,3 1947, and the trial court
convicted him and sentenced him to imprisonment till the rising of the Court
and a fine of Rs. 10,000/- and the High Court upheld the conviction and
sentence. The matter came before the Supreme Court in appeal against the said
conviction and sentence.
A perusal of the trial Court's judgment showed that the sentence ·of
imprisonment till rising of the. Court was awarded to .the accused for the
following reasons-
(1) that the appellant was a senior IAS officer and had held different
high posts which showed that he was a respectable person;
(2) that he had a number of dependents in the family;
(3) that there was certainty of appellant's losing his job and requiring
him to earn a liv.;.ng for himself and his family members;
(4) that this was the first offence committed by him; and
(5) the spectre of incident was hanging over his head for about six long
years.
The Supreme Court while deciding the appeal observed that none of the
factors excepting the last one to some extent, justified the award of sentence less
The fact that the appellant was a senior IAS officer and was a respectable
person in fact required a serious view and stern action rather than a soft
dealing. The considerations such as appellant having many dependents . or
losing his job or the present offence being his first offence were irrelevant and
to some extent but the cases of the nature like the present one do involve time
and prolonged trial because of the number of witnesses being required to be
examined. Therefore, the Court held that delay of five years could not be a
ground for award of sentence of imprisonment till the rising of the Court which
really had made a mockery of the whole exercise.
It must be stated that the ultimate object of the punishment should no
a mode of punishment cannot be undermined where the offence is deliberate,
premeditated and against public welfare or public policy.
In India, parole and furlough are being extensively used to mitigate the
rigours of prison-life. The prisoners should be let-off on parole after unde:·going
1. State of Maharashtra v. Kapoor Chand Kesarmal Jain, AIR 1981 SC 927; see also Jawahar v. State
of West Bengal, AIR 1983 SC 654.
2. AIR 1996 SC 361.
3. Now the Prevention of Corruption Act, 1988.
276 JURISPRUDENCE AND LEGAL 1HEORY
\
a specified period of imprisonment so that 'they retain contact with their
relatives and friends and may not get uprooted _from the society so as to save
them from the evil effects of social stigma due to prison-life} _ prison-cells without any contact with their fellow-prisoners. Thus they are
Sir Lionel Fox, the noted prison reformist of Britain during 192~64 pointed
out that social stigma attached to prisoners make their rehabilitation more
difficult. Prisoners quite often feel that their real p~shment begins after they
are released from the prison. Therefore, an effective after-care programme must
be adopted for rehabilitation of released prisoners~
In spite of the problems of prisons and prisoners, the fact. remains that
imprisonment is still one of the most accepted forms of punishment throughout
the world. With the modern correctional techniques introduced in prison
institution, it serves as an efficient measure of reforming the offenders and at
the same time protecting the society fr~m these anti-social elements. Thus it
serves the purpose of preventive as well as reformative justice at one and the
same time.
5. Imprisonment for life.-Though the executive authorities are competent
under Section 55 of the Indian Penal Code or under Section 433 (b) of the Code of
Criminal Procedure, to compute the sentence of imprisonment for life to one of
rigorous imprisonment for 14 years and the convict who has undergone a
maximum sentence of 14 years R. I may be set free, but the Supreme Court in
Kartik Biswas v. Union of India, 2 has made it dear that life imprisonment is
not equivalent to imprisonment for 14 years or for 20 years as there is no
provision in IPC or Cr PC whereby life imprisonment could be treated as an
imprisonment for 14 years or 20 years without there being a formal remis~ion by
the appropriate government. Section 57 of IPC provides that imprisonment for
life shall be reckoned as equivalent to imprisonment for 20 years for the purpose
of remission when the matter is considered by the government. But the Prison
Act or the rules made thereunder do not confer any authority or power to
commute or remit the sentence.
The imprisonment for life is to be treated as rigorous imprisonment for life.
The High Court of Delhi on 20th Dec. 2006 awarded imprisonment for life
to Manu Sharma, son of Congress leader Shri Vinod Sharma, for murdering
model Jessica Lal in 1999. The Court expressly held that Manu Sharma has to
spend his entire life in jail.
The Supreme Court in Swamy Shriddhanand alias MHrli Manohar
Mishra v. S~ate of Karnataka, 3 further clarified that there is no provision
that convict undergoing life imprisonment has a legal right to remission of his
sentence and therefore, Court is perfectly justified to order that the life convict
should be kept in jail for the rest of whole life. The Court observed that Section
57, IPC does not limit the life imprisonment to an imprisonment of 20 years, as
this provision is made only for calculating fractions of terms of imprisonment.
1. Bhilchabhai Devshi v : State of Gujarat & Others, AIR 1987 Guj. 136.
2. AIR 2005 SC 3440 decided alongwith the case of Mohammed Munna v. Union of India.
3. AIR 2008 SC 3040 See also Subhash Chander v. Kishunlal & others., (2001) 1 SCC 458.
THE ADMINISTRATION OF JUSTICE 277
6. Solitary Confin~ment.-This punishment may be considered as an
aggravated form of imprisonment where convkts are confined in solitary
completely segregated from human society and cut off .from the outer world.
Solitary confinement is generally used for hardened and dangerous offenders
who are incorrigibles and for whom elimination from society is the only
alternative. It seeks to inflict pain and mental torture on· the offender so that
he is deterred from indulging into criminal behaviour in future. Needless to say
that monotony involved in this kind of punishment has a disastrous ·effect ·on
criminals and many of them become lunatics because of the pangs of isolation
and separation under this sentence. It is for this reason that solitary
confinement which was introduced in United States Pennsylvanian Prison in
1770 had to be replaced by the Auburn system in 1819 in which prisoners were
taken out to work together in silence. Experience had shown that many of the
prisoners undergoing the sentence of solitary confinement died in prisons and
many more turned insane. And those few who survived, turned more hostile and
dangerous to society. This punishment has therefore, fallen into disuse · in
modem time and most countries have scrapped it from their penal laws.
In India, the provisions relating to solitary confinement are contained in
Sections 73 and 74 of the Indian Penal Code. The total period of solitary
confinement cannot.exceed three months in any case and it should not be more
than 14 days at a time without intervals of similar period. However, this form
of punishment having become obsolete and outdated, these provisions are
seldom invoked.
The Supreme Court of India dealt with the parameters of solitary
confinement in Kishore Singh Ravinder Dev v. State of Rajasthan 1 , and held
that solitary confinement though legal, must be used sparingly and only in
exceptional cases.
Some critics have even suggested that the provisions relating to solitary
confinement under Section 74, IPC should be scrapped because it has been
considered as human torture by the U. N. Human Rights Charter.
Commenting on the torture and cruelty involved in solitary confinement
Dr. P.K. Sen observed that it was possibly the best method to put an end to
dangerous criminal without resorting to blood-shed or m.urder. 2 Significantly,
this mode of punishment was commonly used in the ancient Indian penal system
as an effective expiatory measure. It was generally believed that complete
isolation of the offender provides him better opportunity for penance and
remonstrance. and the feeling of guilt and self-hatred tends to bring about his
reformation speedily. ·
7. Capital Punishment.-Death sentence has always been used as an ·
effective- punishment for murderers and dangerous offenders. It has both
deterrent and preventive effect. The justification advanced in support of
1. AIR 1981 SC 855.
2. Dr. Sen. P.K.: Penology Old and New (1943), p. 33.
278 JURISPRUDENCE AND LEGAL THEORY
\
capital punishment ia that it is lawful to forfeit the life _of a person :Who takes
away another's life. The killer therefore, deserves execution under this mode of
punishment, legal vengeance solidifies social soJidarity against law-breakers
and hence it is legally justified. 1 _
Thorston Sellin writes that death penalty has failed to be effective even
as a measure of social defence and as an instrument of retributive justice since
many of the condemned prisoners escape death even after the award of this
sentence either because they succeed in appeal or are pardo~ed.
· The history of punishment in England reveals that death sentence has
always occupied a very important place during ancient and medieval periods.
In the reign of George lII as many as 220 offences were punishable with death.
Even minor offences such as shop-lifting or cutting down trees were punishable
with death. In England, Samuel Ro:m.illy made an effort to get capital
punishment scrapped but the idea was vehemently opposed by legislators,
members of the Bar and the Bench on the ground that the terror and deterrence
involved in this punishment was necessary for prevention of crime.2
However, during the later-half of the nineteenth century, public opinion
mobilised against the retention of capital punishment. Consequently, the
British Royal Commission on capital punishment was appointed in 1949. As a
result of the findings of this Commission, death sentence was suspended in
England and Wales for a period of five years from 1965 and was finally
abolished in 1969. Ah attempt was made to re-introduce death penalty for
terrorist offences involving murder in 1975 and again in 1979 but the motion
failed in the House Qf Parliament. The Privy Council, however, emphatically
stressed that the award of death penalty is not violative of human rights or
fundamental rights.3
The Australian law provides death penalty for the offence of murder and
rape. Same is the position in U.S.A. as well. In some of the American States,
death penalty has been retained only for murder of a prison officer by a life
convict.
An International survey recently carried out by the United Nations
rev~als that neither suspension nor abolition of capital punishment has any
immediate effect in increasing the incidence of crimes punishable with sentence
of death. The countries which abolished capital punishment, notably,
Germany, Austria, Netherlands, Denmark and some Latin American States
reported no ill-effect of abolition of death sentence.
The abolitionists often argue that death penalty brutalises human nature
and cheapens huma.n life. 4 Thus it vitiates the humanitarian sentiments
concerning sacredness of human life.
1. Eruest Van Den Hagg: Is Capital Punishment Just, p. 406.
2. When a bill for abolition of capital punishment for the offence of shop-lifting was introduced
in England in 1810, it was opposed by Lord Ellenborough on the ground that expendiency of
justice and public Security required that this sentence be retained.
3. Eston Baker v. Quee11, 1975 PC 774 and Michael de Fraeities v. George Benny, 1976 PC 239.
~ ..1.vid Dressler : Retfdings in Criminology and Penology, (2nd Reprint) p. 486.
THE ADMINISTRATION OF JUSTICE 279
Indian Position
The ancient penal. law in India provided death sentence for quite a good
number of offences. The Mabhaharata contains •references about the offender
being punished with the sentence of amp1.:1tation by bits which was called
Vadhadand. Justifying the retention of death penalty King Dyumatsena
observed, "if the offenders were leniently let-off, crimes were bound_ to
multiply." Therefore, in his opinion true Ahimsa lay in "the execution of
unworthy persons. He firmly believed that distinction between virtue and
vice· must not disappear and the vicious elements must be eleminated from
society. 1
The Moghul rulers in India also made use of death penalty to eliminate
unwanted criminals. They used crudest methods for execution of death sentence.
However, with the British rule in India, these inhuman and barbaric methods
of execution were abolished and death by hanging remained the only mode of
inflicting death sentence.
The framer of the Indian Penal Code, Sir James Fitzjames Stephen
favoured the retention of capital punishment and observed, "no other
punishment deters men so effectively as the punishment of death." He
therefore, provided death sentence for certain specified offences. The offences
which are presently punishable with death sentence are as follows :
1. Waging war against the Government (Section 121, I.P,C.).
2. Abetment of mutiny (Section 132).
3. Fabrication of false evidence leading to one's conviction for capital
offence (Section 194).
4. Murder (Section 302).
5. Murder by a convict undergoing a term of life imprisonment (Section
303). (Repealed by Mutthu v. State of Punjab, AIR 1983 SC 473)
6. Abetment of suicide of child or insane person (Section 305).
7. Attempt to murder by a life-convict (Section 307).
8. Kidnapping for ransom (Section 364A).
9. Dacoity with murder (Section 396).
Till 1983, all the above offences excepting murder committed by a life-
convict (i.e., Section 303) provided for alternative punishment of imprisonment
for life. Thus death sentence was mandatory only in case of offence falling under
Section 303, I.P.C. But the Supreme Court in Mitthu v. State of Punjab,2 observed
that Section 303, 1.P.C. was unconstitutional and violative of Articles 14 and 21
of the Constitution of India. Consequent to this ruling, Section 303 now stands
repealed and all cases of murder are now to b~ punishable under Section 302,
1. Mahabharata-Shantiparwa, Chapter CCLXVII, Verse 4-13.
2. AIR 1983 SC 473. The judgment was handed down on 7th April, 1983 by the Constitution
Bench of five judges presided over by the Chief Justice V.Y. Chandrachud.
280 JURISPRUDENCE AND LEGAL THEORY
\
\
I.P.C. which provides imprisonment for life a~ an alternative punishment ·for
death sentence. · "special reasons" contemplated by this section implicitly suggest that death
The cha~ging trend towards death penalty is clearly reflected in the
legislative changes introduced in the criminal law and procedure from time to
time. Prior to the amendment made in the Code of Criminal Procedure in 1955, it
was obligatory for the courts to award death sentence for the offence of murder
and if they opted for any leniency; they had to record reasons for not awarding•
death sentence. But this positicn was reversed by the Amendment Act of 1955
and now the Courts are required to record special reasons for awarding death
sentence. Thus the law relatitJ.g to de~th penalty has been considerably
liberalised. • ·
The Code of Criminal Procedure, 1973 provides that the Court must record
'special reasons' justifying the award of death sentence and state as to why an
alternative sentence of imprisonment for life would not meet the ends of justice
in the particular case.1 . -- ·
The Code _of Criminal Procedure further requires that the sentence of
death imposed by the Sessions Judge can be executed only after it is confirmed
by the concerned High Court.2 . ·_
There is yet another provision namely, Section 235 (2) of the Code which
further casts a statutory duty upon the Court to hear the accused on the point of
sentence~
That apart, the statutory provisions the Constitution of India also
empower the ·President3 and the Govemor4 of the State to grant pardon to the ·
condemned prisoner in appropriate cases. This power of the executive clemancy
. I
is not subject to judicial review. It is significant to note that the controversy
raised in this regard in Nanavati's case, 5 has been settled once for all by the
Supreme Court in its decision in Sarat Chandra v. Khagendra Nath, 6 which
affirmed the principle that sentencing powers of judiciary and exe~utive are
. ·readily distinguishable.
A review of relevant case law for the preceding three decades would
reveal that during seventies, the trend was clearly towards the abolition of
death penalty but the ruling in Bachan Singh v. Punjab7 in 1980 has ended this
controversy by providing that death sentence should be sparingly used in rarest
of rare cases.
The magistracy has more often than not, used Section 354 (3) of the Code of
Criminal Procedure, 1973 to justify its stand either in support or against the
capital punishment. The abolitionists see this provision as a green signal for.
1. Section 354 (3) of Cr P.C. 1973.
2. Section 366 (1) of Cr. P.C.
3. Article 72 of the ConstitutionJ>f India.
4. Article 161.
5. AIR 1962 SC 605.
6. ATR 1968 SC 497.
7. AIR 1980 SC 898.
Tiffi ADMINISTRATION OF JUSTICE 281
dilution of capital punishment .while the retentionists contend that the
sentence is legally and constitutionally. permissible. Some of the judicial
decisions handed down by the Supreme Court from time to time would illustrate
this point further. · ·
In Kunju Kunju Janardhanan v. State of Andhra Pradesh, 1 the accused,
infatuated by the charm of a village girl, committed brutal murder of his
innocent wife .and his two minor sons while they were asleep in dead night. _The
girl, on her part, ·had warned the accused through her letters not to ruin his
happy family life by the illicit intimacy, but the accused paid no heed and
chose to commit triple murder with extreme·depravity. Although the majority
by two to one commuted de·a th sentence to that of imprisonment for life, Justice
A.P. Sen, in his dissenting judgment disagreed with the majority and observed
that it was a ghastly murder and the accused who acted as a monster, did not
even spare his two innocent minor children in order to get rid of his wife and
issues through her, therefore .death sentence should be the appropriate
punishment in this case.
A perusal of a few more Supreme Court decisions involving death sentence
would reveal that sudden impulse or provocation, 2 uncontrollable hatred
arising out of sex-indulgence,3 family feud or land-dispute,4 infidelity of wife5
or the sentence of death hanging over the head of accused for a considerably
long period due to laws' delay6 have been accepted as extenuating circumstances
justifying leniency and commutation of death sentence to that of imprisonment
for lHe. Justice Krishna Iyer of the Supreme Court of India, (as he then was)
however, made it clear in Rajendra Prasad v. State of U.P.,7 that where the
murder is deliberate, premeditated, cold-:blooded and gruesome and there are
no extenuating circumstances, the offender must be sentenced to death as a
measure of social defence. The accused in this case was, however, allowed
commutation of his death sentence to that of life-imprisonment in view the
changing ideological, constitutional, criminological and cultural trends in
India, and abroad.
A year later, the Supreme Court settled the controversy regarding the
choice between death penalty and life-imprisonment in Bachan Singh 's case. 8
The court over-ruled its earlier decision in Rajendra Prasad 9 case and
emphasised the need for liberal construction of mitigating factors, in the area
1. Criminal Appeal No. 511/1978 disposed of alongwith Rajendra Prasad v. State of U.P., AIR
1979 SC 916.
2. Ummilal v. State of M .P., AIR 1981 SC 1710; Dalbir Singh v. State of Punjab, AIR 1979, SC 1384.
etc.
3. Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799.
4. Chawla v. State of Haryana, AIR 1974 SC 1089; Guru Swamy v. State of Tamil Nadu, AIR 1979 SC
1177.
5. Rishnu Dev Shaw v. State of West Bengal, AIR 1979 SC 702.
6. T. V . Vatheeswaran v. State of Tamil Nadu, 1983 Cri. L.J. 481.
7. AIR 1979 SC 916.
8. AIR 1980 SC 898.
9. AIR 1979 SC 916.
 282
JURISPRUDENCE AND LEGAL THEORY _ - 283
TI-IE ADMINISTRATION OF JUSTICE
of death penalty so that di ity of h J"f, •\ ; • ·
sentence should be award!;; . ~;11 1
e 15 ..maintained. In its view death murdered her brutally. The Court held that the accused deserved death
unquestionably foreclosed. m rares 01 - rare case~ when alternative option is penalty for this cold blooded heineous crime.
In Jay Kumar v. State of Madhya Pradesh, 1 the accused was a 22 years old
Murd~;a::r;~n;h~;:ut~e u!:1:~!t.;:,;en~~e/
children Gita Chopra and her broth Sm~ e . ruta murder of two teenage
dtth in Chopra Children young boy who attempted to rape his brother's wife (Bhabhi) and having
failed in his attempt, murdered her and hanged her chopped head on a tree.
stand was taken b the
Iaved Ahmed Paw:la v ~:~eCoif~
series of gruesome brutal ·murder:
~r anJ_ay ma c~culated. manner. Similar
in/osh~Ab~yankar Murder case2 as also in
a aras tra where the case involved a
He also murderd her eight years old daughter who was an eye-witness, in -order
to destroy any · evidence of his criminal act. The Apex Court held this was a
rarest of rare case which deserved sentence of death as the offence committed
by the appellant was cold blooded heinous murder.
Again, in ·Mahesh v. State of Mp 4 th - S
:on h·c:~rt
·
sentence of death passed b th H" e upreme Court maintained the In yet another case, i.e., Mahendra Nath v. State of Assam,2 the accused
the ~ppellants were father fnd ~ho of Madhya Pradesh. In this case chopped off the hand and head of the deceased after committing his murder.
of his family and his nei hb . . . a axed a person and three members He then took the chopped hand _and head of the deceased to the police station
that person married a H!rr a:ur~~~:te!Vened mer~ly because <:faughter of
justice to permit appellants Jt . t;:rt
held that It would be mockery of
and common men would lo £0.thes~apce e extreme penalty in the instant case
and confessed his offence. The Court maintained the death sentence of the
accused rejecting his plea that he was a young man and his three sisters along
se aI in ourts. with his age old parents were solely dependent on him. The Court reiterated
that the accused had committed a calculated well planned murder and
However, the execution of death sentence b bl" . deserved sentence of death.
barbaric and violative of A t· I 21 f h y pu Ic hangmg was held as
M anual were to provide publicrhIc e . o t e
·t Id
Constitutio
n.
5 E "f th
ven I e Jail The Supreme Court in Ram Dea Chauhan & another v. State of Assam,3
angmg, 1 wou be unconstitutional.
reiterated that commission of the murder in a brutal manner on a helpless child
The Supreme Court has given a f h th h or woman in pre-planned manner justified the imposition of death sentence. In
inordinate delay in execut· f d h res oug ton the question whether
ground for commutation iofndo theat penalty can be considered as sufficient this case, the accused caused death of four persons of a family in a very cruel,
° ea. Vsentence
0 verruling its earlier decision t h
to that of im ·
6
f
pnsonment or life. heinous and dastardly manner and his confessional statement showed that he
State of Gujarat7 observed th t I~. ~ ees waran the Court in Triveniben v. committed these murders after previous planning which involved extreme
the sentence of death in a nt obl1xeThperiod of delay could be held to make brutality. Under the circumstances, the Apex Court treated the case as an
execu a e. e Court how d exceptional one which warranted the award of death sentence as the accused
cou Id still be an acceptabl d f , ever, agree that delay
appropriate cases. e groun or commutation of death sentence in had behaved like a beast and became a menace to the society.
In Sushil Murmu v. State of fharkhand, 4 the accused sacrificed a child of
In Madhu Mehta v. Union of India 8 th S
of eight years in the dis I.f , ~. upreme Court held that a delay 9 years before deity for his own prosperity. The fact that he was having his
justify commutation of dtot~ o mercy p~h~on ':"ould be sufficient ground to own son of same age at the time of occurance shows that the accused was not
trial is implicit in Article \1
s:;:~:c~!~!~e 11:1pr~son1:1ent si,nce right to speedy
the stages of sentencing in 1 d. _~~on which operated through all
possessed of the basic humanness and completely lacked psyche of mind-set
which could be amenable for any reformation. The manner in which the child's
cu mg mercy petition to the President. . head was severed amplified brutality of the· act indicating cruelty of the
The Supreme Court in L N accused. The Supreme Court emphatically held that superstition cannot
death sentence of the accus d a:man .'ldyah~ v. State of Orissa,10 upheld the provide justification for any killing, much less a planned and deliberate
--=---:~:-----~-----e_w o rape Is seven years old niece and then killing. Therefore, death sentence imposed on accused calls for no interference.
I. ~uljeet Singh (alias RangQ) v . Union of India, AIR 1981 SC 1572 It comes within the category of rarest of rare cases because the conscience of
~: A;;t~;;; ~;~~-Shah v. State of Maharashtra, AlR 1983 SC 585. community is shocked by the brutal killing by the accused.
4. AIR 1987 SC 1346.
5 - Attorney -General of Indie, - La h . In Gurmeet Singh v. State of U.P.5 the appellants with one Lakha Singh
6. (1983) Cri. L.J 481. v. cc ma Dev, &others,AIR 1986SC467. murdered 13 members of his family in his house in moon-light when all
7. AIR 1989 SC 1335.
8. (1989) Cri. L.J. 2321. 1. (1999) 5 sec 1.
9 - Daya Singh v . Union of lndi AIR . .. . 2. (1999) s sec 102.
1991 SC 2147. a, 1991 SC 1548; Sh,vap fat Singh v. State of Maharashtra, AIR 3. AIR 2000 SC 2679 ; see also Surja Ram v. State of Rajasthan, AIR 1997 SC 18.
10. (1994) 3 sec 385. 4. AIR 2004 SC 394; see also Dayanidhi Bisoi v. State of Orissa , AIR 2003 SC 3915.
5. AIR 2005 SC 3616.
284 JURISPRUDENCE AND LEGAL THEOR,Y
dee-eased were sleeping on 17th August, 1986.- 't'he petitioner was living jointly
with the deceased person who wer.e ·his . father~ two real :elder brotb.ers and
their wives, four sons and four daughters of these elder brothers. Thus he did
not spare even the small kids of the family. The reason of these gruesome
murders was flimsy. The appellant had been married .about one year prior to
this inci~nt. He was staying together in the joint family. The members of the
family were suspecting unnatur~l relationship between ·the newly married wife
and appellant's friend Lakha Singh who was co-accused ·in the case. Lakha
Singh used to visit her very often and even stayed with her. The family
therefore, objected to this which enraged the appellant and he along with
La;kha Singh decided to finish the ·life of entire family. He had .appealed to
the Supreme Court for commutation of his death sentence to life imprisonment
due to delay in execution of it, which the Apex Court did not think proper in
the interest of justice.
Yet in another case, namely Renuka Bai alias Rinku and another v. State
of Maharashtra, 1 the appellants Renuka and Seema, both sisters, their mother
Anjali Bai, a co-accused who died in 1997 and approver Kiran Shinde (husband
of Renuka) all belonging to Pune, used to commit thefts by snatching gold chains
in festivals or crowded places and made living out of the income derived from.
such thefts. They used to have a child with them at the time of committing the
crime so that by making use of child they would easily escape from the crowd.
Thus all of them used to enter into a conspiracy to kidnap small children below
5 years of age and make use of them whenever necessary and dispose them of
when they were no longer · useful. In this manner they killed as many as 9
children during the period from June, 1990 to October, 1996. They were convicted
on various counts and the two accused Renuka and Seema were sentenced to
. death by the Sessions Court and their sentences were confirmed by the High
Court. Th€ approver Kiran Shinde had also kidnapped 13 children and caused
death of 9 out of them. The appellants were found g'!,ilty of offences under
Section 364 read with Section 120-B and also Section 323, I.P.C.. .
In appeal against this death sentence, the Supreme Court held that there
were no mitigating circumstances in favour of the appellants except that they
were women. But the nature of crime and the systematic way in which children
were kidnapped and killed amply showed the depravity of mind and
therefore, their conviction was confirmed and appeal was dismissed.
In the bride burning case of Santosh Shankar Powar v. State of
Maharashtra, 2 the Supreme Court upheld the concurrent findings of the facts
recorded by the Trial Court and the Bombay High Court (Nagpur Bench) and
found no reason to alter the conviction of the appellant under Section 302 IPC for
offence of murder. Expressing concern for the rising incidence of crime against
women, particularly in dowry demand cases, the Court observed :
l. AIR 2006 SC 3056.
2. AIR 2015 SC 3789 (Para 16). See also Satya Narayan Tiwari and another v. State of Uttar
Pradesh, AIR 2011 SC (Cri) 507.
THE ADMINISTRATION OF JUSTICE 285
"Indian society has become a .sick society. This• is evident from the
· 1arge number of cases coming up in·this courf (and·also in almost all •courts ~
the country) .in which women are bing .killed by their husbands or by their
in-laws by pouring kerosene on them and setting them on fire. or by
hanging/ strangulating them. Large number of women are treate~ ~ ~is
horrendous and barbaric manner. This is because of total commerc1ahsation
of our society and lust for money which induces people to c<:>mm~t m~1rd~r of
the wife. Time has come when we have to stamp . out this evil with iron
hands."
From the foregoing discussion it may be concluded that death sentence ·
should be sparingly used but its retention in the Statute Book seems necessary as
a penological expediency. Happily, the Indian criminal justice system has
taken note of this balanced .view and introduced provisions in its penal laws
accordingly. More recently, public opinion is mobilising in favour of e~ten~ing
the scope of capital punishment to economic ?ffences such_ as 1:'rofite~~g,
hoarding, smuggling, black marketing and similar .other anh-soc1al achv1h_es
which upset the solidarity of society. Though Russia and other c_ommumst
countries prescribe capital punishment for such offen~es, the poh~y h_ardly
seems to be expedient in the Indian context. In fact, forfeiture or confiscation of
· property or imposition of heavy fines by way of penalty would perhaps be ~ore
effective punishment in such cases and the revenue so collected may be utihsed
for the welfare of the community as a whole.
The Law Commission of India in its 45th Report has suggested that the use
of lethal injection for execution of death sentence would be simplest and decent
method as it ensures instantaneous and painless death without any torture.
This mode of execution of death sentence has already been adopted by some ·
European and American States but has not received the attention it deserves in
India.
It must:, however, be stated that the objectives of sentencing and the range
of sente~ces has considerably widened over the years and this calls for properly
marshalled observation of the results of similar sentences imposed in similar .
circumstances in the past. The sentencing courts ·should therefore, ke~p
themselves abreast of the penological developments specially when the cho1~e
is between 'death' or 'life imprisonment'. Undoubtedly, death penalty 1s
unconstitutional if imposed arbitrarily, capriciously, unreas_onably
discriminatorily, freakishly or wantonly but if it i~ admi~istered_ rah<:>n~lly,
objectively and judicially, it will enhance peoples confidence m cnmmal
justice system.
Supreme Court's view on Sentencing
Commenting on the sentencing power the.Su~reme Court ob~erved that the
state of criminal law reflects upon the social consc10usness of society, therefore,
·system of law adopted for the administration of criminal justice, be it based on
corrective mechanism or deterrent approach, should ensure social security
because protection of persons and their property is an essential function of the

286 JURISPRUDENCE AND LEGAL TIIEORY
. \
state. Judges should ascertain that punishm~nt which is awarded to the
offender is befitting the gravity of crime. 1 ·
The Supreme Court's concern for doing justice. to victims of unlawful arrest
or detention by enforcing their right to compensation is indeed a pragma.tic step·
in the administration of criminal justice system. 2 . ·
The decisions of the Apex Court on different aspects of criminal justice
have _shown that.it has proved itself to the sanctum sanctorum of justice.
Malimath Committee Report on Reform of Criminal Justice (2004)
The Government of India had appointed Malimath Committee to report
on Police and Criminal Justice System in India under Dr. V. S. Malimath, former
Chief Justice of Karnataka and Kerala High Courts. The Committee made
detailed analysis of the existing criminal justice system and gave
recommendations on fundamental principles of justice, investigation,
prosecution _and functioning of the judiciary..The Committee in its report on
reforms of criminal justice has suggested the need for constituting a permanent
statutory committee for prescribing sentencing guidelines. In its opinion, the
amount payable as fine needs to be raised many times and non-payment thereof
should not involve automatic imprisonment but instead a definite period of
community .service should be imposed. Some offences which have become
redundant should be decriminalized. Traffic violations should not lead to term
of imprisonment.
Extra-judicial Enforcement
Besides the judicial enforcement of rights, namely, enforcement through
the medium of Courts, various forms of extra-judicial enforcement are also
frequently resorted to. They may be either specific or sanctioned. The only
instance of extra-judicial sanctional enforcement in English law is distress
damage feasant, that is, the right to seize animals or inanimate chattels
that are causing damage or encumbering land until compensation is paid. All
other forms of extra-judicial enforcement such as self-help, entry upon land,
recapture of goods, abatement of nuis~nce and ejectment of a trespasser are
sanctional in nature. The extra-judicial enforcement pre-supposes redressal of a
wrong without resort. to the courts either by self-help or by the defence of
· others.
Penal and Remedial Proceedings
All legal proceedings before Courts of law may be classified into five
distinct heads, namely : · The concept of justice, particularly, Article 46 seeks to protect the weaker
1. Action for specific enforcement;
2. Action for specific restitution;
3. Action for penal redress;
1. Shailesh Jaswantbhai v. State of Gujarat, (2006) 2 SCC 359.
2. Ruda[ Shah, (1983), Sebestian Hongray, (1984); Bhim Singh (1986); Nilabati Behra, (1993);
SAHELI (1990); State of Gujarat v. Hon'ble H.C. of Gujarat, AIR 1998 SC 3164, etc.
1HE ADMINISTRATION OF JUSfICE ·287
4. Penal sanctions; and
5. Criminal prosecution.
The first two may be called as remedial proceedings and form the sources
of remedial liability while the last three carry with them an element of
punishment and therefore, they are primarily penal actions as they give rise to
penal liability.
The purpose of remedial proceedings is to remedy the wrong while those
of penal proceedings is to punish the wrongdoer. This distinction between
remedial and penal proceedings assumes special importance from the point of
view of legal theory because all criminal proceedings are penal but the converse
is not ~~- Some civil proceedings may also be penal while others may only be
remedial m nature. · .
Administration of Social Justice
. B_esides the administration of civil and criminal justice, the higher courts
~ ~~ha ha'.'e. also. taken up th~ task of social justice administration through
Judicial ach~,ism m the exercise of their writ jurisdiction. Thi£ trend is
discernible from the decision_s of the Supreme Court and some of the High
Co~rts onwards __late_ seventies of the 20th century. The higher judiciary
realised that India bemg a welfare State, is committed to the cause of social
justice and the courts must respond to this cause keeping in view the felt needs of
the Indian society.
The Indian Constitution is one of the best documents to show as to how the
concept of justice in its extended form has been engraved in various provisions of
the Co~stitutio~. To begin with, the Indian Constitution envisages that the
Republic of India shall secure to all its citizens justice-social, economic and
political, liberty of thought and expression and equality of status and
oppor~ity. It ~ec~tes that constitutional law shall endeavour to ensure justice
to all citizens w1thm the framework of the constitutional mandate.
:he _words "Socialist, ~ecular, Democratic, Republic" added by the 42nd
Constitutional Amendment, 1976 further illustrate tha:t the principal aim is to
eliminate inequality and pro~ide a decent standard of life to the working
pe~ple, the Supreme Court m S. D. Nakara v. Union of India1 and Minerva
Mzlls 2 cases further observed that the expression 'social justice' in the preamble
recognise~ the Bent~am_ite principle of greatest happiness of 1.he greatest
number without deprivation of legal rights of persons.
sections from social injustice. Similar provisions also exist in Article 15 (4)
regardi~g special provisions for backward classes; Article 16 (4) regarding
rese~vahon for backward classes; Article 330 regarding special provisions
relating to Scheduled Castes and Scheduled Tribes in reserving certain seats of
1. AIR 1983 SC 927.
2. AIR 1980 SC 1789.

288 JURISPRUDENCE AND LEGAL THEORY
Parli~ment, Article .335 regarding relaxation o~. minimum qualifying standard
for ad-mission to certain professions, e.g., medical, 4;?ngjneering etc.
- . -
In the case of Indra Sawhney v. Union of India, 1 the Supreme Court held
that a positive duty is imposed on the · State for protection of tribals and
weaker sections of people.
Article 39-A contains a directive for legal aid to poor ensuring ·the poor
sections access to justice and law courts. It is on the basis of this provision that
legal aid programmes have been launched by most of the States in India. The
Legal Services Authorities Act, 1987 has been enacted in order to achieve the
objective enshrined in Art. 39A. For -the .disposal of cases expeditiously and
without much cost, Lok Adalats have been constituted under the Act which are
functioning as voluntary and conciliatory agencies. More recently, the Supreme
Court Le5 al Services Committee Rules have been framed in 2000 with a view to
providing free legal services to indigent and needy litigants in their cases
bef?re the Supreme Court.
The directive principles contained in Articles 39(a) to (g) further requires
the State to remove inequalities of wealth and ensure distributive justice to all
alike and ensure fair distribution of material wealth to remove disparity
between 'haves' and 'have nots.' · ~e mem~rs of the sOCiety based upon the principle from each according-to
Likewise, Article 43 regarding living wages and Article 43-A which was
introduced by 42nd Constitution Amendment, 1976 regarding participation of
workers in management of industries are directed towards ensuring social justice
for the industriat workers. That apart, Article 41 regarding public assistance to
disabled and aged persons and Article 42 regarding securing just and humane
condition of work etc. are all directed towards the attainment of the object of
social justice; ·· · itself the task of forced redistribution of wealth so as to achieve a fair division
Distributive Justice
· -. .It:has already been stated earlier that social justice may be in the form of
distributive justice or corrective justice. When it operates at the level of
distributive Justice, it seeks to ensure a fair distribution of social benefits and
bur~ among the members of the community. The manifestation of
d1stributive justice may be found in the concept of wages, bonus, gratuity, family
pension, subsidised ration to poor, etc. which are intended to secure minimum
standard of living to needy and poor persons. Corrective justice, on the other
hand, seeks to restore equality when it has been disturbed by wrongdoing. It is
deemed vital to bring the wrongdoer on the right path so that he is not a
nuisance for the society.
It must, however, be stated that the concept of distributive justice is by no
means new to the jurisprudential thinking as it was in existence even in the
ancient Greek civilization. Aristole, the great philosopher of his time,
commented :-
1. AIR 1993 SC 487.
. .
THE-ADMINISTRATION OF JUSTICE . 289
,,. · ''Distributive -jus_tice .exercised in the distribution · of wealth honour
and .other di~ibl~ assets of the !=Ommunity which lllay be allotted among .
the ~~mber~ m:equal_~d _unequal . shares by ·the· legislator ·according to·
merit..
. .. . . --. . -. .
. - ·· .·. . ·
. \
- - 'Illus, the_essence of dis~butiy~justice .is to secure :a balance or equilibrium -
am~ng members of the SOC1ety~ Th«! concept has. been well recognised under _
Arti~l~s 14,_ 15 ~d ~6 -o~ !he_ Cons~tutio11 of India Agaitl, the :provisic>ns · -
CQI):!amed m directive prmc1ples _.·e>f -. S~ate- ·policy are directed towards
attainment of distri~utive jus~ce,}which is ct form of social justice.2 · _· · · · ·
- Elaborating the:concept of distributive jusHce as orie of the forms of social -
justice Mr. Justice AP. OSe:rf in Lingappa - Pochanna -v ~ State of :Milharashtra3 -
observed: ·
· _u0u_r 7~ns~futi~~f~m~its :and eve~ directs to administer what may be _
termed as distributive Justice. The concept of distributive. justice in the
sphere of law :making cortnotes,inter-alia, · the removct.l of economic
_ inequali_ties and. rectifying _the injustice•··resulting from dealings or
· transactions between unequal in society, Law should be used as an
instrument of distribu~ve justice to achieve a fafr division of wealth among
his capacity, to each according to his needs." ·_ -.
The Apex Court in this case held that distributive justice is aimed at
lessening of inequalities by differential taxation, imposing ceiling on holdings
both agricultural and urban, and regulating contractual transactions so that
those who have hitherf:o been deprived of their fortunes by unconscionable
~argaining should be restored their legitimate dues. Thus law should take upon
of material resources among the members of society .4
That apart, Article 311 -(i) which provides that no person in the civil
· service shall be removed or reduced in rank unless given a reasonable
opportunity ofbeing heard is again based on sound principle of natural justice.
The constitutional prov1s1ons relating to preventive detention as
contained in Article 22 and protection against double jeopardy contained in
Article 20 also seek to ensure justice to every citizen. · _
· Apart from the foregoing provisions, the recent trend of public interest
litigation which Dr. Upendra Baxi preferred to call the Social Action
Litigation (SAL) has revolutionised the whole law relating to writ remedies
under the constitutional provisions as provided in Article 32. and Article 226.
Now even an ordinary prayer of petitio_n to the Supreme Court under Article 32
1. Articles 37, 41, 42 etc.
2. Distributive justice and corrective justice are two forms of social justice.
3. AIR 1986 SC 389.
4. Dr. Vinay N. Paranjape, Dimensions of Reference Making Power of the Government in Industrial
Adjudication, (2004), p. 55.
290 JURISPRUDENCE AND LEGAL 1HEORY
or .to the High Court under Article 226, m~ be taken up and heard by these
Courts as writ petition if it is filed on behalf of some group of persons who
themselves are unable to move the Court du~ to poverty, misery etc. That is,
under PIL justice has been taken to .t he door-steps of the poor, down-trodden and
p~rsons of ~eagre resources. The land-mark decisions in People's Democratic
Right v. Union of India; 1 Bandhua Mukti Morcha case;2 M. C. Mehta v. Union
_of lndia; 3 Olga Tellis v. Maharashtra State; 4 Neerja Choudhri v. State of
Maharashtra; 5 Maneka Gandhi v. Union of 'fndia·;6 Vishakha v. State of
Rajasthan 7 are only some of the best illustrations to demonstrate the
~c~~o~ation of the principles of social justice through this new trend of writ
Junsd1ction. It seeks to remove injustice and ensure social justice to all those who
had been hitherto deprived of the acce~s to justice through law. courts for all
these years. . entire life fighting for the cause of. the upliftment of women and harijans. He
National Judicial Data Grid to Reform.Court Management System
. . ~fore recen~ly, efforts are being made to expand the scope of the National
Jud1c1al Data Gnd (NJDG) to make justice delivery system more transparent
where all stake-holders can access the data. The Central Government is keen to
stren~hen. coordination between the States and the High Courts and find out
how effectively the National Judicial Data Grid could be used to moniter the
performance o~ the Judges. All High Courts have been asked by the Supreme
Court .to modify procedures to align with the latest reforms .initiated after
comput~risation of Courts. The Apex Court has also asked the High Courts and
sub-ord~ate Courts !o reduce pendency, particularly cases older than five years
Responding to the Supreme Court's call, many High Courts have constituted
'arrears committee' to review pendency cases.~ · punishment of wrong-doers. Besides the primary functions, there are certain
· The revamp~d ~~u~t Manage~ent System through NJDG would provide .
for ass_essment of JUd1c1al productivity and reduction in congestion rates, besides
~o':1-pmg of ~ases so that those related to same subject-matter and involving
si~dar question of law can be assigned to one Judge. Categorisation and
assignment_of ~ases through Court management system will help to ensure that
the matter 1s disposed of without delay. Appointment of Court Managers has
also been proposed to improve efficiency of court management. Formulation of
common Code for all courts would facilitate one-time payment of process-fee.
. 1:hese_ effo~ts would certainly improve the present system of
admrmstration of Justice making it more transparent, accountable artd accessible
to a common man.
1. AIR 1983 SC 1473.
2. AIR 1984 SC 802.
. 3. AIR 1987 SC 1086.
4. AIR 1986 SC 567.
5. AIR 1984 SC 1099.
6. AIR 1978 SC 597.
7. AIR 1997 SC 3011 ..
8. Cpnference of all Chief Justices and Chief Ministers was held in New Delhi on 24 April
2?16 to ta~e stock of Judicial ~eforms with focus on common court procedures. CJI focussed
on how NJ DG could be effectively used for monitoring the performance of the Courts.
nm ADMINISTRATION OF Jl]SllCE 29i
Gandhian Theory of Justice . . .
.· According to Mahatma Gandhi; the Father of the Nation, true justice lies
in fighting against injustice, tyranny, inequality, racialism etc. in order to
establish a socio-economic order based on truth,· equality and fraternity. The
Gandhian philosophy of justice. has fully been e~bodied in the Preamble to ~e
Constitution of India and particularly,.th~.PrQVisions contained. in Part m and
Part IV of the Constitution dealing \vith fundamental rights and directive
· principles of State policy are di~cted towards t~e a~evement of well being
of all irrespective of race, caste,.cr~q, ~eligion etc. ·
Gandhiji believed in passive ·resistance to injustice· and unjust socio-
political order through resort to non-violence and pursuation. He sacrified his
considered .·untouchability as a ~urse which needed to be totally abolished .for
the sake of emancipation of depre~sed class of millions of people who had been
denied justice of centuries. ·
In Gandhi's view true justice, lay iri. fighting against inequality, social
evils like child marriage, prac~ce. of Sati, subjugation of women; child labour
etc. For him, Satyagrab and Ahimsa were the great tools for achievement of
justice and removal ofunjust social evils and practices.
Secondary Functions 0£ Court
As stated above, the primary function of a Court of iaw is administration
of civil and criminal justice . which includes enforcement of rights and
other secondary functions also which the Courts are required to perform. They
include:
1. Adjudication of the claims of citizens against the State through
petition of right.
2. Declaration of the rights of .individuals by declaratory
proceedings. This may include declaration of nullity of marriage,
legitimacy, interpretation of wills, advice to executors etc.
3. Administration of the trust, insolvency, liquidation proceedings
etc.
4. Title of right as created by decrees e.g. decree of divorce or judicial .
separation, adjudication of bankruptcy, grant of letters of
administration, appointment or removal of trustees etc. In such
cases, the judgment of the court operates as a title of right and not
as remedy of a wrong. ·
Apart from the primary and secondary functions of the Courts, the
superior Courts may also be vested with the power of supervising1 the lower
courts functioning under them. They also exercise appellate jurisdiction over the
Courts subordinate to them.
1. Such power is vested in High Court under Article 227 of the Constitution of India.
292 JURISPRUDENCE AND LEGAL THEORY
Independence of the Judiciary \\
An _independent judiciary is-a sine qua non for proper functioning of the
democratic institutions in a country. _ · would transform the country into . a state of repose.1 The Supreme _Court has
The former Chief Justice of India Mr. P.N. Bhagwati had emphatically -
pointed out that th~ Judges of the <:ourts should not be _g uided by any verbal ·o r
formalistic canons of construction but by paramount. object and purpose of justice, -_
for which Constitution has been enacted. It is true that Judges do not make law
but they simply interpret it, still judiciary should make use of law .as a tool of
social transformation creating new social order imbued with social justice. "The
Court has to innovate new methods and devise new strategies for providing
easy access to justice to common man who are denied their basic human rights
and to whom, freedom and liberty has no meaning".
The traditional mechanical juri~prudence which treats law as a slot ,
machine now stand totally discarded. The judicial activism expects judges to ·
provide relief to the people in their battle against injustices and exploitation.
As rightly observed by Mr. Justice Chinnappa Reddy in the historic Golakh
Nath, 1
"the Courts are bound to evolve, affirm and adopt principles _of
interpretation which will -further and not hinder the goals of socio-
economic justice enshrined in Parts III and IV of the Constitution. The
Court should mould the spirit of _law to suit the changing values and
norms of justice. Particularly, in the cases in which the Government, or its
ex~cutive officials or members of legislature or of any political party are
involvecl as a party, justice should not only be done, but it should appear
to have been done so that people's faith in the independence of judiciary
is not shaken .. The .Judges while handling and deciding cases involving
corruption in Government agencies, environmental polh.1.tion, terrorist or
nexalite activities, gang-rapes, social discrimination etc. should adopt a
progressive lead in upholding the community interests so that the dignity
and integrity of the Courts is not undermined and people's faith in
impartial judiciary is not eroded."
Judicial independence is undisputedly a corner-stone of constitutional
paradigm. Though the Constitution of India provides for separation of power
sufficiently demarcating the functions of different organs of the Government
and thus it does not contemplate assumption by one organ of the government,
functions that essentially belong to another. 2 But the working of the
Constitution in the last six decades has shown that notwithstanding such
demarcation of boundaries, there have been breaches committed by different _
organs which is indeed, a matter of serious concern. So far independence of
judiciary is concerned, 'judicial activism' and 'judicial appointments' are .the
two main contentious areas which has generated widespread debate in recent
times.
1. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
2. Ram /awaya Kapur v. State of Punjab, AIR 1955 SC 549.
THE ADMINISTRATION OF JUSTICE 293 .
It is being increasingly felt that judiciary_is committing more and more
breaches on the pretext that in action ·or failure of ·the _legislature or executive
extended judicial powers to the extent and in the manner, -which the framers of
the Constitution of India :never anticipated. Th~ judicial activism in recent
decades has become more a source of .power and it is not contributing n:iuch for
meeting the ends of justice. What is needed is more transparancy in the prcoess
of appointment of Judges and elimination of nepotism by a broad-based policy
for such appointments. The discretionary powers of the top judiciary, which
was free to chose any lawyer it considered fit for judgeship were sought is be
clipped by the National Judicial Appointments Commission Act, 2015 which
authorised the Union Government to reject the names recommended by the
collegium, if it was. in the national interest. However, the Supreme Court struck
down the said Act and proposed a Memorandum of Procedure (MoP) for selection
of Judges. Any recommendation reiterated by _the collegium is binding on the
government. However, the government on its part is steadfast on its proposal
-·that final responsibility of Judges appointment s}:tould rest with the
Government. ··· ·
Be that as it may, it may be stated that the first thing which needs to be
done for ensuring independence of judiciary is to completely ban the offer of
post-retirement job to the Judges of the higher courts which will efectively
prevent Judges who are nearing retirement tend to be pro-government expecting
some lucrative post retirementjob. The proposed suggestion MoP that a lawyer
must have atleast 25 reported judgments to his/her credit and an income of not
less than 10 lakh rupees per annum in the last five years for appointment of
Judgship does not appear to be a sound policy to weed out the possibility ·of
tainted lawyers being appointed as Judges in higher Courts. The Judges need to
refrain from seeking political patronage and avoid populism and over-activism
in their judicial dispensations.
00_0
1. Raja Ram v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184.
\
\

PART-III
SOURCES OF LAW
 . .
13
CUSTOM AS .A SOURCES OF LAW
The term 'sources of law' has been interpreted by different ;writers in
various ways and it has been used in different senses. It is, therefore, necessary
to distinguish between its various meanings and determine the premises of
each. ·
Sources of Law-Meaning
In the Indian context, the expression "sources of law" is generally used in
two senses. In the first, according to Hindu scriptures-duty is the foundation
. head of all law; while according to modern jurisprudence, it is the sovereign
from where the law emanates. In the second sense, the expression 'sources of
law' means where one must resort to get at law. In other words, the evidence of
records of land or books or reports etc. have to be looked into for the purpose of
learning or knowing law. In the latter sense, the sources of Hindu law are the
Sruti, the Smriti and the immemorial custo.ms by which the divine will or the
'reasoning'-which is law, is evidenced. 1 In fact, Sruti contains very little of
lawyer's law. It comprises four Vedas, six Vedangas and the Upanishads
which deal with religious rites, true knowledge and liberation. There are,
however, a few passages containing incidental collusion to a rule of law. The
Smritis are the principal sources of lawyer's law. The Code of Manu and
Yajnavalkya deal with religious rites, positive law, penance, true knowledge
and liberation. The Code of Narada · exclusively deals with positive law
alone. ·
In the modem jurisprudence also the term "sources of law" is broadly used
in two senses. Sometimes it is used in the sense of State or the sovereign from
. which the law derives its force and validity. In other sense, it is used to denote
the causes of law or the contents or matter of which law is composed. Dr. C.K.
Allen asserts that the true sources of law are agencies through which the rules
of conduct .acquire the character of law because of their certainty, uniformity
and binding force. According to Fuller, the "source of law" includes the material
from which the Judge obtains rules for deciding cases. In this sense, it includes
statutes, judicial precedents, customs, opinion of legal experts, jurists etc. 2
According to natural law philosophers, the "law" has a divine origin. It
is a gift of God contained in Holy Books. As stated earlier, Vedas and Smritis
are sources of law according to Hindu Jurisprudence as they have originated
from the sages. Likewise, Quran is the word of God and therefore, a positive
source of Muslim law. The hadis contains the precepts of the Prophet as
inspired and suggested by God.

1. Justice Panda, K.B. : Sanatan Dharma and I.Aw, (1977) p. 28.

2. Fuller L : Anatomy of the I.Aw, p. 69.
 298 JURISPRUDENCE AND LEGAL TIIEORY CUSfOMASA SOURCESOFLAW . 299

T.E. Holland also supports the view that the term "sources· of law" has etc. are the material sources of law. Salmond's classification of sources of l~w
been used in a variety of senses. Sometimes it denotes the material -from which can be briefly summarised as under : ·
all knowledge of law is obtained. This may include statute books, treatises or
law-reports etc. In another sense, the "source of law" denotes the ultimate Sources of Law
authority. which gives law its binding force. Such authority is undoubtedly the I
State which is sovereign. Sometimes the .term is used to denote the causes
which were responsible to bring into existence the, rules wh1ch eventually Material Sources Formal Sources
acquired the force of law e.g., religion, custom etc. and sometimes the agency of
organ through which State creates law or grants legal sanction to existing rules I
is also called the source of law, e. g., legislation etc. 1 -t
Legal Sources Historical Sources
John Austin, the exponent of analytical school of jurisprudence refers to (These are · (These are
three different meanings of the term "sources of law". Firstly, the term refers to authoritative) · unaU:thoritative,
the authority from whence the law emanates, namely, the sovereign. Secondly, e.g., writings of
it may refer to historical material from which the existence of rules of law may eminent jurists,
be known, e.g., the Code of Manu, Commentaries of Yajnavalkya, Code of
Justinian. Thirdly, the term sometimes refers to the causes which·give the rules _ _L__---,--~---,----~, forei ·udgments etc.)

of society the force of law e. g., legislation, custom, equity, law etc. Thus I
Legislation Preced ent c ust omary Conventional
Austin's three meanings of "sources of law" may include (i) direct authority; (Enacted Law) (Case Law) Law Law (based on
(ii) historical documents; and (iii) causes. 2 (based on agreements, .
customs) e.g., local laws,
According to Allen, sources of law are those agencies by which rules of . treaties etc.)
human conduct acquire the character of law by becoming objectively definite, In addition to the historical and legal sources of law, Salm~n~ also talks
uniform and above all, compulsory. 3 ·_ about literary source of law which refers to original and au_thontative sources
of knowledge of law. It consists of all text books, commentanes and law reports
a
The sociological view,· however, makes departure from the orthodox from where we trace any rule of law.
view about law and suggests that law is derived from many sources and
develops in society itself. Therefore, there is no specific authority which has Of the two kinds of material sources, name~y, !egal and historical, the
power to make law but it takes shape as the society evolves. Duguit rightly first is authoritative while the second is unauthontative. To _quote a co_ncr:te
pointed out that law is not derived from any single source and the real basis of example, an Act passed by the Legislature becomes a law which has a b1~~mg
law is public service. Expressing a similar view Ehrlich writes, "at present force therefore, it is a legal material source of law. On the othe~ h~nd, opmmns
as well as any other time, the centre of gravity of legal development lies of eminent jurists have only a pers~asive value ~nd a:e
not bmdmg ~pon the
not in legislation, not in juristic science not in judicial decisions, but in society courts. Therefore, they are . a · historical material source which __are
itself". · unauthoritative. They are sources in fact but they ha~e no_ le~al recogmti~n.
They operate indirectly and mediately. Writings of emment Jt.msts and foreign
Salmond's View judgments are also included in the category of historical _sources of law.
Salmond preferred to emphasise on two main sources of law. He calls them Historical sources may become legal if they are recogmsed by law or
(i) material source, and (ii) formal source of law. The material sources are incorporated as a part of law.
further sub-divided into legal sources and historical sources. He defined a Salmond further pointed out that historical sources pertain ~o legal
formal source of law as that from which a rule of law derives its force and history and not to legal theory. It is for this reason that Salmond has discussed
validity. He, however, clarified that from the material source, the law only legal and not the material sources and even among the legal sources he has
derives only its matter and not the validity. Thus the will of the State as included only legislation, precedent and custom and not others.
manifested in the Statute Book or decisions of Courts are the formal source of
law while legislation, customs, agreements and professional opinion of jurists The above classification of sources of law into formal and material s~urces
has been criticised by some jurists, notably, Allen and Keeton. Dr. Allen obJec~ed
1. Holland T.E., Elements of]urisprudence, (13th ed.) p 55. t 0 Salmond's assertion that "legal sources are the only gates through which
2. Austin: Jurisprudence, Vol. Il, p. 508. • • 1 · can· find entrance into the law and historical sources operate
3. Allen C.K. : Law in the Making, p. 85. new pnnc1p es . . h · f h- h
only mediately and indirectly ... they are merely hnks m the c am o w ic
. 300 JURISPRUDENCE AND LEGAL 1HEORY
ultimate link must be some legal source to which law-is directly attached".1 He
alleged that Salmond has undermined the importance of historical source~
Keeton has also criticised Salmond. for his views on formal sou:::-ce of law which
in modem time is the State. In his view, the State cannot be termed as law in
modem technical sense because it is only an agency to enforce law. In real sense
it is the pub1:ic opinion ·which finds expression through legislature which gives
law its autllt>rity and force. · ·
- '
Jt· 'seems
that perhaps P.J. Fitzgerald, the editor of Salmond's
Jurisprudence was himself not satisfied with the Salmond's classification of
sources of law into formal and material and this is why in the twelfth edition
of the Book he omitted this classification and discu3sed only the legal and
historical sources of law.
G. W. Paton, however, considers that the division of sources into formal
and material is usually accepted. But Dr. Glanville Williams prefers to
distinguish the . legal and historical sources of law; the legal sources being
legislation and precedent while the historical source is the actual origin of the
rule adopted by the Court in arriving at " decision.
· Keeton's view
According to Keeton, the sources of law can be classified into two broad
categories, namely, (i) Binding sources of Law; and (2) Persuasive sources:
Binding sources may further be classified ·as (i) Legislation, (ii) Judicial
precedents, and (iii) Customary law. Likewise, persuasive sources may also be
of three kinds, namely, (i) Princ.iples of equity, (ii) Professional opinions,
(iii) Writings of jurists etc. He asserts that in modem time, the only formal
source of law is the State, but it being an organisation which enforces law, it is
not correct to consider it as a source of law in real sense of the term. In his
opinion, persuasive sources are useful only when there is no binding source of
law . .
Legal Sources of English Law
The legal sources of law ~ay not be necessarily the same in all the legal
systems. In other words, different legal systems may have ·different sources of
law. Even the same legal system may have different sources of law at different
times. For example, the Hindu jurisprudence recognised : (1) Dharmashastras,
(ii) Commentaries & Digests, and (3) Custom as three legal sources of Hindu
law prior to codification of Hindu law but after its codification in 1955-56,
enacted Hindu law and precedents have assumed importance as sources of
Hindu law. So far English law is concerned (i) legislation, both supreme and
subordinate, (ii) case law or judicial precedent, (iii) custom, and (iv)
agreements or the conventional law, have been recognised as sources of law.
1. P.J. Fitzgerald : Salmond on Jurisprudence, (12th Ed.) p. 112.
CUSTOMASA SOURCESOFLAW 301
However, English jurisprudence does not recognise literary source as legal
source.1 · ·
The English Corpus Juris is divisible into two parts, namely, (1) statute
law or legislation, and (ii) precedent having its source in judicial decisions, i.e.,
the case law.
Legislation is.the making of law by formal and express declaration of new
rules by some authority in the State which is recognised by the courts of law as
competent for that purpose. Aprecedent, on the other hand, is making of law by
application of new rules by the courts 'themselves in the administration of
justice. This in other words, means that enacted law comes into the courts ab
extra whereas case law is developed within the courts themselves.
In addition to legislation and precedent, English _law also recognises
custom and coventionallaw as two other legal sources of law. When custom
fulfils the requirements laid down by law for their recognition, they become
obligatory rules of conduct which are called the customary laws; The
conventional law1 on the other hand1 is formed out of agreement between the
parties and may be in addition to or in derogation of the general law of the
land. To illustrate, autonomic law, having its source in subordinate legislation
of private bodies, such as universities1 municipalities etc, is conventioPal law.
The local law which is in force in a particular part of State's territory also
comes under this category.
From the above discussion it may be inferred that English legal system
recognises four main sourcesof law. They are:-
(1) Custom which includes customary law.
(2) Legislation which consists of enacted law.
(3) Precedent comprising case law or judicial decisions;
( 4) Conventions based on agreements.
Inter-relation between Sources of Law and Sources of Right
It is significant to note that a source of law may also serve as a source of
right. A source of law is some fact which is legally constitutive of right. An Act
of Parliament is a typical source of law, but there are several Acts which are
also sources of rights, e.g., The Consumers Protection Act, 1986, the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985, the Minimum Wages Act, 1948,
the Protection of Human Rights Act, 1993 etc. It must, however, be noted that
all sources of law are not necessarily the sources of right. Thus a judicial
decision is a source of law as regards the world at large, but it is only a source of
right as regards the successful party. The decision of an inferior court is not a
source of law but it is certainly a source of right.
I. There is no written Constitution in U.K. Had it been so, it would have undoubtedly been a
source of law.

302 JURISPRUDENCE AND LEGAL THEORY
Sources of Law : Indian Perspective
Prior to the British rule in India, Hindus and Muslims who constituted the
major population of this country were governed by their person~! ~aws, n~mely,
Hindu law for Hindu1 and Mohammadan law for Muslims. It 1s interesting to
note that original Hindu law recognised four sources of law, i. e., (1) the Sruti,
(ii) the Smritis, (iii) the conduct of the virtuous, and (iv) one's own conscience. 1
In course of time, the la1t two receded into the background.
The primary SP.\U'~t?s of Mohammedan law were also more or less similar,
namely, (1) Quran, (2) Sunnat and Ahadis which meant traditions, (3) Ijma
(consensus of opin.ion), (4) Kiyas, i. e., analogical deductions. Both these laws
claimed transcendental origin and recognised King as a magisterial official.
The Sruti as a source of Hindu law and the Quran as a source of Mohammedan
law are supposed to l>e ft direct revelation from God but the language of both is
of human origin. Thct two, however, differ on one major point-while
Mohammedan law clal:tt1.s human being, namely, Prophet Mohammad as its
founder, no such clam, l~ made by Hindu law.
The common law of England was also derived from custom. The common
law courts were customary in their origin and declared customary law, whose
sanction was derived from long prevailing customs. 2
With the introduction of English common law in India, the English legal
sources of law replac@d the earlier sources ·of indigenous laws and they have
now become an integral part of the modem .Indian jurisprudence which owes its
origin to the British l~gal system.
In the modem l~gal systems legislation occupies a prominent place as a
source of law since most of the laws are made by the Union or the State
legislatures. The role ()f custom as a source of law is diminishing day by day as
the societies are changing fast adopting new ways of life and living. The role of
precedent as a source of law is also limited because the Judges have to take the
help of many other sources, such as juristic writings, foreign decisions, moral
and social values of the time and place in deciding cases and handing down
judgments.
CUSTOM AS A SOUR.CE OF LAW
Custom occupies an important place in regulation of human conduct in
almost all the societie$. In fact, it is one of the oldest sources of law-making. A
custom may be defined as a continuing course of conduct which by
the acquiescence or express approval of the community observing it, has come
to be regarded as fi:xing the norm of conduct for members of society. 3
However, the importahce of custom as a source of law continuously diminishes
as the legal system $rows. The reason being that with the emergence and
1. Manu, 11 and 12.
2. Plucknet : A Concis~ History of Common Law p . 272.
3. Dias & Hughes: Juri!Sprudence. (1957) p. 34.
CUSfOMASA SOURCESOFLAW 303
growing power of the State, custom is largely superseded by legislation as a
source of law.
According to Manu, the roots of custom as a .source of law in ancient India
may be enumerated under four distinct stages, namely, ·
( i) Revelation, or the utterances and thoughts of inspired seers (Rishi-
Munis); · ·
(ii) The utterances of revered sages, handed down by words of mouth from
generation to generation (shruti);
(iii) The approved an:d immemorial usages1 of the people; and
(iv) That which satisfies sense of equity and good conscience and
acceptable to reason.
As rightly observed by Salmond "custom is to society what law is to the
State. Each one of them is the expression and realisation, to the measure of
men's insight and ability, of the principles of rights and justice. The influence
of custom on society is similar to that of law on the State.
Definition and Nature of Custom
A custom may broadly be defined as a usage observed by the people and
recognised by the courts on the fulfilment of certain conditions. It is a usage
observed by a large majority of people as a matter of habit and its continuance
has acquired a legally binding force. 2
The term 'custom has been defined in the Webster's New International
Dictionary (1957) as a long established practice considered as in written law
and resting for authority on long consent, a usage that has, by long continuance
has acquired a binding force in law.
Dr. Allen defines custom as the uniformity of habits or conduct of people
w1der like circumstances. When people find any act to be good and beneficial,
apt and agreeable to their nature and dispositio}l, they use and practise it from
time to time, and it is by frequent use and multiplication of this act that the
custom is made. 3 He holds that custom as a legal and social phenomenon grows
up partly by forces inherent in socie~y, forces of purity of reason and necessity
and partly of suggestions and imitation.
According to Herbert Spencer, "before any definite a 5 ency for social
control is developed there exists a control arising partly from the public opinion
of the living, and more largely from the public opinion of the dead. Thus it is
tradition passing on from one generation to another that originally governed
human conduct. This tradition is called custom.
1. 'Usage' may be defined as spontaneous evolution by popular mind of rules the existence
and general acceptance of which is proved by their customary observ_ance. It marks
the transition between morality and law and usage when continued for tune
immemorial assumes the form of custom.
2. Legal Glossary published by Govt. oflndia in 1992 p. 86.
3. Allen, C.K. : Law in the Making, p. 87.
304 . JURISPRUDENCE AND LECAL THEORY
Salmond ~pines that custom . ~~~odi~s those principles as are
acknowledged and approved, not by the power of the State, but by public
opinion· of . the society at large. When State .: takes up its function of
administering justice, it accepts as valid the rules bf right already accepted by
. the society of. which it is itself a product and it _finds those principles _already
realised in the customs of the realm. Salmond further observes that when the
State acquires more self-confide11ce, it seeks to .conform nationai usage to~the
law, rather than the law to national usage. Thus he states, "custom is the
embodiment of those principles which have commanded themselves to the
national conscience as principles of justice and public lltilityll. 1 . · from direct legislation or from direct conflict. Succession has it roots in the
According to Halsbury, "custom is some kind of special rule which is in
actual existence or possibly followed from time immemorial artd which has
acquired the force of law in specified territory, although it may be contrary or
inconsistent with the general law of the land". 2 ·_ · _
According to T. E. Holland, custom is a generally observed course of
conduct. He illustrates it by pointing out that it grows just as a track is formed
across a grassy land-by constant passing of people over it either intentionally or
by mere accident. Once it is formed, others follow the same track and thus a
path is made. Likewise, a custom once started becomes a course of conduct in a
given society.
Austin suggests that custom is a rule of conduct which the governed observe
spontaneously and not in pursuance oflaw settled by the political superior .3
The Judicial Committee of the Privy Council, in Harprasad :v. Shivdayal 4
observed that custom is a rule which has obtained the force of law in a
particular family or region due to long usage.
Keeton defines custom as those rules of human action, established by
usage and regarded as legally binding by those to whom the rules are
applicable, which are adopted by court and applied as a .source of law because
they are generally followed by the political society as a whole or by some part
of it.
In Tam is try case, 5 it was held that custom is jus non scrip tum and it is
evolved by the people in respect of a place where it is followed. When people
find any act to be beneficial and agreeable to their nature and disposition, they
start practising it from time to time and when it is continued for immemorial
time, it obtains force of law.
Origin of Customs
Anthropological studies show that in early societies human conduct was
regulated and controlled by customs which the people in general usually
1. Fitzgerald, P .J.: Salmond on /urisprudence, (12th ed), p. 191.
2. Halsbury : Laws of England, Vol. X, p. 2.
3. Austin : The Province of Jurisprudence, (1954), p . 165.
4. (1876) IA 259.
5. (1608) 80 ER 516.
CUSfOMASA SOURCESOFLAW 305
followed as a matter · of habit.· According to -Savigny, the main founder of·
German historical school, custom is essentially a product of natural forces
associated with popular ·spirit of acceptance by the people. When .people
repeat the same action (conduct) again and again, it assumes the form .of 'habit'
and when habit continues to be in practice for a long time, it becomes custom .
Tracing the origin of cutom as a source of law, Vinogradoff1 succinctly
observed:
"Neither succession, nor property, nor possession nor contract started
necessary arrangements of a household on the death of its manager, (i.e.
'Karta' in ancient Hindu Law), property begari with occupation, possession
is reducible to defacto detention, the origins of the contract go back to the
custom of barter. Disputes as· to the rightly inprimitive society were pre-
eminently disputes as to application of non-litigious customs."
According to Markby "nothing more is necessary for .the growth of
custom than that people should have some tradition of what .t heir
forefathers did before him, that they should repeat the _same conduct on
similar occasions, and that they .should be convinced that what they do is
right." 2
For instance, on the death of the Karta' under the joint Hindu family,
the eldest son became the sole owner and manager of the family. It was an
age-old custom prevalent in India until the enactment of the Hindu
Succession Act, 1956. This custom was known as the rule of primogeniture.
Reasons for Recognition of Custom
Custom exists as law in every country, though it tends to lose its
importance relatively to other sources of law with the changes in society. The
law that originated in England on the basis of prevailing customs is known as
the 'common law', which is adopted in the form of Acts of Parliament ever since
the sixteenth century.
·c ustoms are not laws when they arise, but that they are largely adopted
into the law by the State recognition. Customary law assumes a binding
authority provided it fulfils certain requirements and provided it is not
su~pended by law by a higher authority.
When a particular conduct is followed by people continuously for a long
time, it is called habit. But if some conduct or rule is followed by most people of
a particular class or locality, then whether the others should follow the same
would invariably depend on the generality of practise. It is not always
necessary that the court should recognise all the practices which are pre:-;,:alent
in a community as custom. For instance, there is a practice among Hindus that
the male relatives of the deceased shave off their heads as a mark of
1. Vinogradoff: Historical Jurisprudence p . 368.
2. Markby : Elements of law p. 44.
306 JURISPRUDENCE AND LEGAL THEORY
condolence, but if a man does not follow thi~ custom, the court is certainly not ·
going to punish him. Similarly, the mourners in a funeral procession are
supposed to wear black clothes in England, but if a person does .not follow this
practice, he cannot be punished by court for coipmitting this breach of custom.
Thus these are conventional customs established by usage and long practise and
the courts shall not take judicial notice of such customs. In other words, such
customs are not obligatory.
On the other hand, there are certain customs which are binding and are
enforceable by a court of law since they are backed by the sanction of the State.
For instance, a Hindu marriage solemnised without the performance of
Saptapadi is not legally valid and can .be set aside by the court.
In earlier stages of the development of society before the State came into
existence, people were being governed by the customary laws. The Customary
law of a particular. class or place is that which is universally followed,
without interruption from time immemorial. Thus prior to 1850 when civil and
criminal laws were not codified, the topics, such as succession, marriage,
adoption, contract, transfer of property and crimes like arson, hurt, murder,
theft, treason wer~ regulated by customary laws in the absence of legislation on
these subject. After the enactment of legislation on these subjects, the customary
law yielded to the statutory law on these issues. It would therefore, be seen
that though customary law is the oldest of laws, yet it is the weakest, and so it
becomes inoperative as soon as legislation on it comes into existence.
An appraisal of Hindu jurisprudence would unmistakably reveal that
customary law was a rule of conduct authoritatively imposed by the divine
power upon man, governing all his activities, public or private and affecting
his spiritual and temporal interests. Every step in life is guarded in the
interests of preservation of human society. 1
It is well known that ancient Hindu law was predominantly duty-
oriented. Hindu community was deeply merged in religion and philosophy. The
Srutis and Smritis emphasised on "duties" rather than "rights". This,
however, does not mean that the early Hindu society did not recognise any
rights. For instance, in a joint family, the husband had a right over his wife's
person and property, yet the wife had absolute right over her Stridhan
property.
The present laws, that is, statutory or constitutional, are all man-made
but the Hindu law, in its nascent form was of divine 0rigin, that is, it was 'God-
maUe'. Even ancient Greek philosophers like Aristotle have said, "law is a
form of order and therefore, a good law means a good order". Cicero also said
that no power should be above law.
Custom necessarily involves two conceptions, namely, (i) the conviction or
faith ; and (ii) constant use. As Gautama rightly pointed out, "customs of castes
and families which are not opposed to the sacred records have also authority".
1. Justice Par(da, K.B. : Sanatan Dharma & Law, (1977) p. 18.
CUSTOMASA SOURCESOFLAW 307
Manu regarded.custom as direct evidence of law. By custom he meant prac~ce ~f
good men which necessarily involves an element of reasonableness and which is
not opposed to public policy. He emphasised that one should fol~ow the
righteous path that has been followed by one's ancestors. By followmg that
path, one does not suffer. ·
1
According to Narada, usage is indeed powerful as it pverrides the law.
Yajnavalkya also stated that when a country is conquered, its usages, customs
and · family traditions should be followed as they were followed before.
SimilaT views have been expressed by Brihaspati who said that the laws of
place; caste or family, which have existed from time immemorial, should be
followed otherwise people get agitated.2 Thus the importance of custom ~s a
source of law has been recognised by different commentators of the ancient
Hindu scriptures.
Recognising the ·importance of custom in Hindu law, even the Privy
Council in Collector of Madura v. Motoo Ramlinga, observed, "the clear proof of
usage will outweigh the written text of the law".3
It must be stated that custom has played a very important part in building
up the system of International law. Art. 38 of the Statute of Internati~nal Court
of Justice provides for the application of international customs as evidence of a
general practices accepted as law. As Oppenheim rightly pointed out,
"whenever and as soon as a line of international conduct frequently adopted by
States is legally considered as an obligation or right, the rule which is
abstracted from such conduct becomes a rule of customary International law"• A
custom to become a rule of International law must satisfy two criteria:- (1) its
· existence as a constant and uniform practice; and (2) its acceptance as a rule of
International customary law. 4 Thus in the case of West Rand Cen~ral Gold
Mining Co. v. R.,5 the Court laid down that for a custom to be recognised as a
rule of International law, it must be established beyond doubt that "the allege~
custom is of such nature, and has been so widely and generally ac~epte~ ,,that it
can hardly be supposed that any civilised State would repudiate it • The
diplomatic relations between States under International law are generally
regulated by customary usages and practices which are recognised as law of
nations.
Kinds of Custom
It is not necessary that a custom should be practised all over the country.
There may be a custom which is practised authoritatively only in a particlar
locality. Broadly speaking, there. are two kinds of c11stom, namely,
(1) Conventional custom, (2) Legal custom.
1. ~ ~ qi:f~•ii•4ifl<ld I
2. ~-;;nm~~ "11'f: ~ I
<fitc{ i\ ~ : v,;t'l '!i~~s::..cTIII
3. (1868) 12 MIA 397.
4. Opinio juris sive necessitatis.
5. (1905) 2 KB 391 (407).
308 JURISPRUDENCE AND LEGAL THEORY
·(1) Conventional Custom \.
A conventional custom is also called ,;usage". It is an established practice
whose authority is conditional on its acceptance and ·incorporation in the
agreement between the parties bound by it. A conventional custom is legally
binding not because of any legal authority independently possessed by it, but
because it has been expressly or impliedly incorporated in a contract between
the parties concerned. When two parties enter into ,a contract, generally whole
terms of the agreement are not set out expressly and a large part of most contract
is implied. The intention of the parties to the contract can be gathered from the
customary law prevalent in the trading community. · 5. A conventional custom or usage which is contrary t~. any express
The development of conventional customs ~ssentially involves three
stages. Firstly, it must be so well established as to have attained the notoriety
of a usage. The existence of a usage must be proved on the basis of evidence. In
its second stage of development, a conventional custom_gets recognition through
a judicial decision. At this stage it assumes the form of a precedent. After
having passed through these two stages the conventional custom is finally
accepted as a statutory law after its codificati~n. This is its third stage of
development. The law relating to Bill of Exchange and most of the provisions of
the Sale of Goods Act have their origin in the conventional customs and usages
which were followed from time immemorial. 1
A conventional custom may either be (i) local, or (ii) national. In order to
acquire the status of law, a conventional custom must fulfil the following
conditions :-
1; It should be old enough to be in the knowledge of the people in general.
No specific period is, however, prescribed for a custom to be treated as 'old
enough' for this purpose. Even a relatively new conventional custom may also
get legal recognition provided it has been well established in the community. 2
The Privy Council in Subhani v. Nawab, 3 observed, "it is undoubted that a
custom must form long usage, be ancient, but it is not of the essence of the rule
that its antiquity must in every case be carried back to a period beyond the
memory of man. What is necessary to be proved is that the usage has been acted
upon in practice for such a long period and with such invariability as to show
that it has, by common consent, been submitted to as the established governing
rule of the particular place".
In Baba Narayan v. Saboosa, 4 Rankin, J., observed, "in India, while a
custom need not be immemorial the requirement of long usage is essential since it
is from this that custom derives its force as governing of the party's rights in
place of the general law of the land". · Legal customs are those which are operative per se as bmding rules of law
2. A conventional custom shall be recognised as law so long as it is not
contrary to the general law of the country. It should be consistent with statute
law. It cannot alter the general law of the land.
1. Dias & Hughes : Jurisprudence, (1957) p. 47.
2. Tucker v. Linker, (1883) 8 AC 508.
3. ILR (1941) Lah. 154 PC.
4. (1943) 2 MLJ 186.
CUSTOM AS A -SOURCES OF LAW
a
3. It should be .reasonable. Whether particular custom ts reasonable or
not, shall depend' on the discretion of the ·court. A_ccording to Allen, it. is
the unreasonableness of the custom which must be· proved and not its
reasonableness.
4. A conventional custom need not necessarily be confined to a particular
area. It may relate to any trade or commercial dealing which may be national
or even international.
condition laid down in a contract, shall not be enforceable by law.
To be reasonable, a conventional custom must be in conformity_ with
morality and public policy. Thus in a Bombay case of R. v. Karson, 2 a custom
authorising a woman to leave her· husband at her will_ and ~arry an~th~r m~
was held to be void being against morality and pubhc pohcy. Again, in RaJa
1
Varma v. Ravi Varma,3 a custom, of recognising the sale of a religious office and
trust property was held tobe void be~g_opposed to p~blic policy. In ~-English
case,4 the charging of a fee of 13 shillings per marriage by the Pn_st of the
Church was held to be unreasonable on the ground that the amount was
exorbitant although this practice was found to be prevalent continuously for the
preceding 48 years.
I
Custom Distinguished from Usage
Usually a conventional custom is referr~d ~o ~s u~age bu~ the two
essentially differ in certain aspects. A custom 1s bmdmg irrespective of the
consent of the parties not to be bound thereby. Usages, on the other hand, are
binding only when they are not expressly excluded by the terms of agreement
entered into by the parties. ·
Again, a custom to be valid should have been in existen~e from time
immemorial but it is not so in case of a usage. In other words, unhke custom, a
usage need not be of immemorial antiquity.
Further, a custom when it. is local, can easily derogate from the general or
common law of the realm, but not from statute law. Usage, however, can ~? so to
the extent to which it is possible to exclude the common law by spec1f1c and
express contract between the parties.
(2)Legal Custom . .
independent of any agreement between the parties. Legal customs are of two
kinds, namely, (i) Local custom, (ii) General custom.
(i) Local Custom.-A local custom is that which prevails in some defined
locality whereas a general custom is operative throughout the realm. When
1. Asarabul/a v. Kiam tu Ila, (1937} Cal. 245.
2. 2 Born HCR 124.
3. 4 IA 76 (PC).
4. Brvantt v. Foot (1868) LR 3 QB 497.
1
310 JURlSPRUDENCE AND LEGAL THEORY
\
the word 'custom'·is u~ed simpliciter it refers to\local custom. Halsbury defined
local custom as "a particular rule which has existed actually or presumptively
from time immemorial, and has obtained the force of law in a particular
locality, although it is contrary to or not consistent with the common law of the
realm'' .1 A local custom to be valid, should be certain, reasonable, continuous,
permanent and should not be contrary to any existing law. It should be practised
by the people voluntarily and not out of the fear of the force of the State. It
should also not be opposed to any other existing custom in the locality
concerned. If the inhabitants of a particular territory assert their customary
right over the territory of others, such a right shall not be recognised as a local
custom. Thus in Sowerby v. Coleman, 2 where the inhabitants of a village used
the land of some other village for training horses, the court held that it could
not be accepted as a local custom.
(ii) General Custom.-As stated earlier, a general custom prevails
throughout the realm and constitutes one of the sources of the common law of
!he c?':111try. For ~stance, the custom of eldest male member of the family
mhentmg the entire property of the deceased karta of the joint Hindu family
was a well established custom in India before the enactment of the Hindu
Succession Act. Likewise, the custom of prohibiting widow remarriage in most
of the com_munities in India prior to statutory enactment in this regard was a
well established general custom in this country.
Custom
Conventional Custom Legal Custom
or
I
usage
(Certain trade practices etc.) Local
(Practised in _
particular localities
only)
A general custom is usually practised by all the people living in the
country and it is prevalent throughout the land. Until the 18th century, the
general customs of England were recognised as common law3 but today it is not
so. Now only the statute law passed by the British Parliament and precedents
are regarded as the sources of common law. Therefore, at present the general
customs of England are different from the common law.
According to Keeton, a general custom must satisfy certain conditions if it
is to be a source of law: It must not only be reasonable but also be followed and
1. Halsbury: Laws of England, Vol. X, p. 2.
2. (1867) LR Ex 96.
3. Best,J., in Blundell v. Catterall, (1821) B & Aid 297.
CUSfOMASA SOURCESOFLAW 311
accepted as binding. It must be in existence from the time immemorial and
should not be in conflict with the statute law of the country. It should also not
be contrary to the common law of the land.
Essentials of a Valid Custom
In order to be a valid custom, it must conform to certain requirements laid
down by the law. The essential requisites of a valid custom are:-
1. Reasonableness.-A custom must be reasonable. It must be remembered
that the authority of· a prevailing custom is ne·.rer absolute, but it is
authoritative provided it conforms to the norms of justice and public utility. A
custom shall not be valid if it is apparently repugnant to right and reason and it
is likely to do more mischief than good if enforced.
A general observance of a custom leads to the presumption that it has a
rational basis and that it is useful and convenient. The party disputing the
validity of a cu~tom must satisfy the court of its unreasonableness. In order to
ascertain the reasonableness of a custom, it must be traced back to the time of its
origin.
As to the reasonableness of a custom to be recognised as valid, Dr. Allen
observed, ''the true rule seems to be not that a custom will be admitted if
reasonable, but that it will be admitted unless it is unreasonable". The period
of ascertaining whether a custom is reasonable or not, is the period of its
inception. 1
Sir Edward Coke pointed out that a custom is contrary to reason if it is
opposed to the principles of justice, equity and good conscience. The courts
should not lightly reject an established custom unless it is manifestly repugnant
to the notions of right and reason and opposed to public policy. As Salmond
-t rightly suggests, before a custom is denied legal recognition, it must be found out
General that the mischief resulting from its enforcement outweighs the harm
(Practised that would result from the multiplication of the natural expectation of the
people.
throughout
the realm) The ·Judicial Committee of the Privy Council, delivering its judgment
through Sir James Colvile in Raja Varma v. Ravi Varma, 2 observed that a
custom permitting not merely the transfer of the trusteeship but sale of
trusteeship of a religious endowment for pecuniary advantage of the trustee,
was clearly unreasonable and bad in law, hence it was held to be invalid.
The Supreme Court of India, in Ram Dhan Lal- v. Radhey Shyam, 3 held
that the custom of recognising the channel of the river or stream as the
boundary between two or more villages irrespective of its change in path cannot
be said to be unreasonable and hence it was a valid custom.
1. Mercer v. Denne, (1905) 2 Ch 534, followed in Asarbulla v. Kiamatullah, (1937) Cal 245.
2. 1 Mad 235 (PC).
3. 1951 SCR 370.
 CUSTOMASA SOURCESOFLAW 313
312 JURISPRUDENCE AND LEGAL THEORY
\ that customs and statutes are put on the same level with respect to their legal
In t~e context of reasonableness of 'custom, the · recent controversy
efficiency and customary law may complete, modify, or repeal a statute, it may
surr~undmg the en~ o_f women into the inner sanctum of Hindu Shanil temple
create a new rule and substitute it for a statutory rule which it has abolished.1·
of Smgnapur (ffl ~ ) m Maharashtra .deserves mention. On a petition filed by
Windscheid also observed that the power of. customary law is equal to that of
some women activists like Tripti Desai, the Bombay High Court by its judgment
statutory la~ and therefore, it may not merely supplement, but also derogate
of April 201?, ordered that women be allowed to worship along side men in the
from the existing law. In Scotland also a statute may fall into disuse by the
t~mple, endm? a ~ore than 400_ years old traditipn and custom. Thereupon, a
wo~an organisation ~ead by _Tnpti Desai marched towards the temple on 3rd posterior contrary custom.
Apnl to fo:ce womens entry m the temple, which was strongly opposed by the . 3. Compulsory Observance.-A custom to be legally recognised as a valid
temple pnests and the local people. The woman activists accused the State custom, must be observed as of right. It means that custom must have been
Government of conte~pt of Court, alleging violence by the local people, but the . followed by all concerned without recourse to force and without the necessity of
government seemed m no hurry to comply with the order of the Bombay High permission of those who are adversely affected by it. It must be regarded by
Court: However, the Bhum~~a Brigade leader Tripti Desai finally succeeded in those affected by it not merely as an optional rule but as an obligatory or
brea~g 400 years old tradition and entered the Shani teinple and offered puja binding rule of conduct ..If a practice is left to individual choice; it cannot be
on Friday the 8th April, 2016. · treated as a customary law. Before accepting a custom as a binding source of
law, the court should satisfy itself that it has transformed into an
. !here is no doubt that Hindu Sages and Saints have led to spiritual unmistakable conviction of the community as to the rights and obligations of its
upnsmgs to erose boun~a~es of ca_ste, language or gender. But it is equally true members towards one another. Citing an illustration of the compulsory
that some matters pertau~mg to fai~h have their roots in occult practices which observance of a valid custom, Blackstone pointed out, "A custom that all the
are not a~en~ble to the simple logic of human rights. Satun i.e. 'Shani', being a inhabitants shall be rated towards the maintenance of a bridge, will be good,
ot
planet Justice and caution in astrological parlance, its significance needs to be but a custom that every man is to contribute thereto at his own pleasure, is idle
~pheld m the worsh!p of its attendent deity." In a secular democracy, religion and absurd and indeed no custom at all".
is undou~tedly ~ pnvate_ matter, but then India is committed to social justice
and equality, which also includes gender equality, that has to be honoured." If the observance of a custom is suspended for a long time, it would be · ·
2
assumed that such a custom was never in existence.
. .In a vas~ natiom like India, questionable practices are to be found· in all 4. Continuity and Immemorial Antiquity.-A custom to be valid should
rehg1ons and mterv~ntion by courts in the affairs of one religion can stir unrest . have been continuously in existence from the time immemorial. To quote
over_ others a_s well. ~erefore, it would be advisable for a:11 authorities to be Blackstone, "A custom in order to be legal and binding, must have been used so
cautious while handling such sensitive issues 3 and they should left to be long that the memory of man does not run to the contrary. If anyone can show
resolved_ through discussion an'! dialogue between the social and religious the beginning of it, it is no good custom".3 i
leadership and temple administration.
English law has, however, set an arbitrary but necessary limit to legal
2. Consistency.-A custom to be valid, must be in conformity with statute memory. It has fixed 1189 A.D.-the year of accession of King Richard I as good
law. In other words, it should not be contrary to an Act of Parliament. A custom en~>Ugh to constitute the antiquity of a custom. It means that if the continuance
should necessarily_ ~ield ~h~re it conflicts with a statutory law. This rule is of a custom is traced back to 1189 A.D.-the year which English law assumes
observed as a positive pnnciple of law in England and countries like India that human memory can ·stretch back, the custom shall be held as a legally
which follow English law. Th: Roman law and various continental systems, valid custom.4
however, do not adhere to this rule. Justinian in his Corpus Juris mentions
The English law of reckoning immemorial .antiquity from the accession of5
sever~l statutes which have fallen into disuse by a posterior contrary custom.4
Richard I, i.e., 1189 A.O. was applied in the case of Simpson v. Wells,
That is_ to sa_y,_ the latter rule prevails over the earlier, regardless of their
wherein the charge against the appellant was that he had erected a stall of
respective ongms and legislation has no inherent superiority in this respect
edibles in the mid of the road which had obstructed the road traffic. The
over custom. If an ~nacted law comes first, it can be repealed or modified by a
appellant contended that the custom of erecting stall at the time of specific
later custom and vzce versa. Commenting on this aspect Savigny pointed out
1. P.J. Fitzgerald: Salmond on Jurisprudence, (12th ed.) p. 200.
l. Shani is a planetary deity of astrological significance.
2. Hamperton v. Hono, (1876) 24 WR 603.
2. Triple Talaq among ~uslims d~s not have any legal sanctity and it is considered as a sin as
3. Blackstone : Commenti:ries, p. 76.
pe~ H~ly Q~ran, yet instances of its use are growing.
4. Angus v. Dalton, (1877) 3 QBD 85.
3. Ed1tonal, Times of India (Delhi Ed) dated April 6, 2016.
5. (1872) 7 QB 214; see also Brayantt v. Foot, (1868) LR 3 QB 49.
4. Lex posterior derogat priori Oustinian Digest D. 1. 3. 32).
 315
cusroM AS A SOURCES OF LAY"
314 JURISPRUDENCE AND LEGAL TIIEORY
I . hil
\ .. ti Thus custom is a long practice operating as a source of law w e
statute sessions (a kind of fair) was prevalent for atleast past fifty years. The pres~p . on.. - long practices operating as a source of right.
Court of King's Bench rejected the plea on the ground that such sessions were prescription 1s a . - b •
ld rule as to time immemorial still subsists, ut m
first intended in the reign of Edward III, and ther~fore, the custom could not 2. In case of custom, the ~ . t rant. o erates and it is governed by
said to be immemorial as it started much after 1189 A.D,. i.e., the year of the case of prescriptio~ the fiThction of Los c!iptiv/right to air or light can be
accession of Richard I. t tutory prescribed time. us a pres
s a . ed by uninterrupted use for period of twenty years.
In India, however, the English rule of recognistng the year 1189 A.O. as acqwr . . • · t
the limit for reckoning immemorial antiquity does not apply .1 All that is 3. A custom on
·gm·ates from long usage.whereas a prescription ongma es
required to be proved is that the custom has been in existence from the ancient from waiver of a right.
time. In other words, there is no definite year laid down in India to determine . 1. l locality or community as a whole
the antiquity of a custom. Even it need not be beyond the human memory,2 4. A custom extends to a particu ar pi::,. onfined to an individual or his
Justice Rankin in Baba Narayan v. Saboosa, 3 decided that though the existence but prescription is of a personal nature w is c
of a custom from unknown (immemorial) time is not deemed necessary to give it relatives or near:--ones. . .
legal validity, but it should be continuously in existence for a long time. He . nf •ty with the principles of 1ustice
5. A custom to be valid must be m co o ~
observed that long existence of a custom gives it the force of a right to make it and public utility, it is not so in case of prescnption.
legally recognisable.
. es Re ardin Transformation of Custom into Law . .
S. Certainty.-In order to prove the existence of a custom since time
immemorial, it must be shown that it is being observed continuously and
uninterruptedly with certainty. The element of certainty evinces the existence
Theo~usto!ary l~w ~as not been~~a::~~~!:: ~;gi;~~:r :i:~=~:n~~
trained judg~s, but it ~as. com~~ve ex ressed divergent views regarding
0

of a custom therefore, a custom cannot be said to be in existence from the time practice. ~nters and J\~nst;aw and bJing accepted as a source of law. There
immemorial unless its- certainty and continuity is proved beyond doubt. In this transformation of cu~ton:i mtth~ gard ·namely (1) Historical theory; and (2)
context it would be pertinent to refer to the case of Guruswamy Raja v. Perumal. 4 are two main theories in is re , ,
In this case the plaintiff claimed a customary right of easement for the shadow Analytical theory.
falling from the branches of the trees hanging from the neighbour's field. Mr.
Justice Pandalai of the High Court of Madras ruled that there cannot be a t Historical Theory . • p ht
custom relating to shadow of trees because it is so uncertain, ambiguous and . . f the historical school, namely, Savigny, uc a,
The mam exponents_ o ested that law has its existence because
transitory that it cannot give rise to any customary right. Blackstone and Henry Mame have sugg 1 d "customary observance is not the
Some writers include public policy also as one of the essential requisites of of the common consciousness of th~ peol:' _e an " S . observed "customary
f 1 w but the evidence of its existence • avigny ' d
a valid custom. In their view, a custom should not be opposed to public policy. cause o a . . 1 statute· it may create a new 1aw an
But it is submitted that this aspect is already covered under reasonablencJS of laws completely modify or r~pea h~ h ·t h;s abolished". Sir Henry Maine
the custom which pre-supposes that a custom to be valid must not be contrary to substitute it for statutory [°
e w 1\ / w According to Manu, "Custom is
public policy of the place and time. regards custom as a forma source o a o~ts historical view and says, "what
transcendent law". James Carter al~o=~{e beginning of time will continue to
Distinction Between Custom and Prescription
has governed the co~duct~f men tu is not likely to undergo radical change
Historically, prescription is a species of custom. In early societies govern to the end of time. um.an na re .. 1
prescription was regarded as personal custom. In this sense it was limited to the and law will for ever coninue to be custom .
rights of a particular person and his ancestors or predecessors in title. It was The critics of historical theory of transfoi:matio:t~o~tysto: inp::c~:~;r~:
distinguished from a local custom which was limited to a particular place, and . to think that custom gives a .
not to an individual person. The distinction between custom and prescription that it. is erroneous . . If binding unless it fulfils certain essentia1
may briefly be stated as follows : - statute law. A custom is not itse . t nc and immemorial antiquity to

1. When a course of conduct is practised for a long time, it gives rise to a

rule of law known as custom, but if it gives rise to a right, it is called
l requirements su~h a_s reasonable:~~~ c~:s~~= other hand, is binding, however,
be accepted as_ bm~mg law.! :!en thou hit has fallen into disuse for a long
unreasonable it might be an b ~ a statute law but a statute law can
time. That apart, a custom cannot a roga e
· l. Gokul Chandra v. Praveen Kumari, AIR 1952 SC 826.
2. Mst. Subbhani v. Nawab, ILR 1941 PC 21. abrogate a custom.
3. (1943) 2 MLJ 186 (189).
4. AIR 1929 Mad. 815. 1. Carter James : Law, its Orio-in
o· ,
Growth & Function, P· 120.
316 JURISPRUDENCE AND LEGAL THEORY
-Dr. Allen pointed out tha~ all customs cakot b~ attributed to the common
consciousness of the people. For instance, a ruling class very often imposes
customs on the governed. It does so for its own convenience and for the protection
of its own interests rather than the interests of its people.
J.C. Gray also contends that great many laws were brought in not only
without the wishes of the people but against the ~ishes of the great mass 9f
them. He further points out that customs being local, have nothing to do with
the national will. These local customs are some times,so widely different from
one another in the same couritry that it can hardly be said· that they arise from
common consciousness of the nation. For instance, the -custom of marriage
between cousins is common in some communities in Andhra Pradesh but it is
prohibited in other parts of India.
Sir Henry Maine regarded custom "posterior to that of Themistes or
judgments". He suggested that the origin of custom_ lies in the decisions of
Themistes 1 which were the awards dictated to the King by Goddess of justice.
Jethro Brown has supported this view of Sir Henry Maine and held that under
the pretence of declaring custom, Judges frequently give rise to it and thus
custom is posterior to judicial decision.2
Vinogradoff, however, did not agree with Maine and argued that custom
did not originate from judicial decisions instead it originated from household
and relations of the clans and its growth was steady. They possess the sanction
of the people· and Judges recognise them only as an official formality.
2. Analytical Theory
The main exponent of the analytical theory of customary law was John
Austin who regarded custom as a historical material source. He pointed out
that custom derives its binding force not from its own nature but by State
recognition. It means that a custom becomes a law when it "is adopted by an Act
of the Parliament or its validity has been established by judicial decision.
Thus a customary rule may become a legal rule either by_ recognition through a
st~tute law or by a precedent. For instance, the law of Hundis in India has its
origin in earlier custom prevailing among money-lenders to ensure repayment of
debt by borrowers.
Austin further contended that custom has only persuasive value.
Customary practices have to be recognised by courts before they can become law.
If there is no statute-lc!w on the point for decision before a Judge, he may look
into the custom for guidance. Once a custom is recognised by the court, it becomes
a law. It depends upon the court's discretion to resort to custom for deciding a
case when no other measure, i.e., enacted law or precedent is available for
guidance. Being of a persuasive nature, custom is considered as a historical
1. Greeks believed that Themistes was the goddess of justice who dictated the King to give his
decisions while dispensing justice.
2. Jethro Brown : Austinian Theory of I.Aw, p. 308.
CUSTOMASA SOURCESOFLAW 317
material source of law. Austin thus concluded that "cuE;tomary law is nothing
but judicial law founded upon anterior custom" .1
Holland also holds a view that custom becomes a law when it is adopted
as law by State recognition. He observed that binding authority is conceded to
custom by the State when it fulfils certain essential requirements, such as
reasonableness, immemorial antiquity, compulsory observance, continuity
etc. Judges also recognise custom as a source of law if it satisfies the contents
of validity prescribed for being treated as law. Therefore, for Holland,
custom is a legal material source of law. This view is also supported by Sir
Salmond.
The laws of inheritance and succession for indigenous Indian people
framed by the .British rulers provide the best illustration, as to how the
. contemporary customs and usages prevailing in the Indian society a~sumed the
form of law. The Law Co:rnmission appointed under the headship of Lord
Macaulay in its first report of 1837, ·in declaring the powers of the Supreme
Court of Calcutta2 provided that in deciding cases of inheritance and succession
of Muslims and Hindus residing in the Presidency of Calcutta, if the parties.
happened to be Mohammedans the laws and usages of Mohammedan law would
apply and in case of Gentus i.e., Hindus, the Hindu law and usages would be
applicable. However, where the one party happened to be Mohammedan and
the other Hindu, the personal law (i.e., the Hindu or Mohammedan Law) to
which the defendant belonged, shall apply. Similar provisions were later
extended and made applicable with reference to Courts of Madras and
Bombay.3
This conversion of customs and usages_ into law also illustrates as to how
the principles of equity, justice and good conscience played a significant role .in
moulding customs into the form of legislation. The ~1a_:w of the defend~t'
adopted for deciding the cases of inheritanc~ ~d success1?n wher_e the parties
belonged to different religion, shows how prmc1ple of eqmty was mcorporated
in the Indian law making.
Dr. Jethro Brown has criticised Holland for recognising custom ~s la~
when it is recognised by a court through its decision because a precedent itself 1s
liable to be scrutinised on the ground of reasonableness and may be over-ruled b_y
higher superior court. However, the criticism advanc-~d by Jethro Brown 1s
rejected by Salmond on the ground that althoug~ the differenc~ ~etween the
application of precedent and custom is based on reasonable1:-ess, m the latter
case the onus of proving "unreasonablensss" of custom hes on the party
impugning a custom. Salmond, therefore, concludes that a _custom becomes law
when it satisfies the conditions prescribed by the law which are necessary ~or
its legal validity. Custom is, therefore, rightly treated as a legal material
source of law.
1. Austin: Prauince of Jurisprudence, (1945) p. 165.
2. Statute 21, Geo III c. 70. Section 17.
3. Geo III, c. 142.
 JURISPRUDENCE AND LEGAL THEORY
318
According to Gray, custom is, no doubt,\one of the sources of law but it is
certainly not the on1y source of law. He admits that law is what the judges
declare but while ettablishing a law they have. to seek recourse to other sources
such as statute, pre.cedents, opinions of the legal experts, customs, morality etc.
all of which must have the support of the community.
Criticism Against These Theories
Dr. Allen has criticised Austinian theory of customary law and pointed
out that the falla(:y ol the Austinian doctrine is in supposing that custom is not
law until it has M?tf\ so pronounced by a court. He observed that the truth is
exactly the reverse Of it. According to him, "custom is firstly and essentially a
law". In his view, C\18tom is enforced by courts because it is already law, it does
not become law only on enforcement by court. 1 Custom grows by conduct and
therefore, its validity should not be tested solely on the basis of express
sanction accorded to it by the courts of law or by any other determinate
authority, ·such a~ the State or the Parliament. A great majority of customs
have originated froth practices prevailing in the community for regulating
human conduct for reasonable, intercourse and social co-operation. Therefore,
most of the customs are recognised not because .the court or legislature gives .
them sanctity of law, but because they are treated as law by the community as a ·
whole and people feel themselves bound by them. In view of these
considerations, _it i3 difficult to subscribe to Austinian .view that custom is not
law until it receive$ the recognition of the Court or the State.
Like the afialytical theory, the historical theory regarding
transformation of C\tstom into law is also not wholly acceptable because it is not
correct to say that t;:ustoms always arise out of convenience or the needs of the
people. Sometimes they may have been imposed upon the people by the ruling
authorities. Again, the State has the power to abrogate a custom. Thus
histo~ical theory r~garding transformation of custom into law ignores the
creative role played by legislators and Judges· in moulding the law in modem
time.
In the ultima.te analysis it may be concluded that neither of the two
theories can be trea.ted .as wholly correct though there is some truth in each of
them. The true nature of custom as· a source of law may be considered from the
sociological point Of view. It is well known that custom came into existence
with the origin of the society. Before the State came into existence, societies
were mostly govern.ed by customary practices which regulated human conduct.
Therefore, they h~tl the same force and authority as the "laws" have in
modem S~ates. It ia for this reason, it has been said that "custom is to society
what law 1s to the State". Custom and law, both are expression and realisation
of th_e P:i~ciples of right and justice. With the evolution of society, legislative
and JUd1c1al organs of the State developed and they exerted their influence on
customs. For instance, Hindu law of ancient time has been greatly influenced
and modified by th~ decisions of the Privy Council and legislative enactments
1. Allen CK : Law bi the Making, pp. 84-87.
CUSTOMASA SOURCESOFLAW 319
in 1955-56. Courts do play a significant role in deciding the validity of laws
enacted by legislature. In this process, sometimes they have to seek recourse to
custom and find out since how long it has been observed as a rule of conduct and
how far it satisfies the conditions laid down for being recognised as law. Thus
the function of the court is "declaratory rather than constitutive". Considered
from this standpoint, Salmond's views about true nature of custom appears to be
more acceptable. _ ·
A custom becomes law whenever it satisfies the tests prescribed for its
validity. If the Court comes to the conclusion that an alleged custom is
continuously in existence and generally observed and fulfils the requirements of
being treated as "law", it must declare it as "law", and such a custom shall
become a lega:l custom.
Importance of Customary Law
It cannot be denied that with the development of the judicial process; the
importance of custom is constantly recedh1.g. Nevertheless, custom has played
an important role in the development of law and its significance is being
experienced even t.:> this day.
Custom was the sole source of law in early times because the law in these
days were mostly unwritten. The common law in England is nothing but the rules
of customary law which prevailed in English society for regulating human
conduct and intercourse inter-se. These customary rules had the approval of
public . opinion. When States came into existence, they gave immediate
recognition to the customs prevailing at that time and thus they were
recognised as valid laws. However, with the passage of time, legislatures
began to enact laws and modify customary law or supplant it.
Desperate the diminishing role of custom in modem procures of law-
making, the custom still occupies an important place as a source of law even to
this day because most of the material contents of the developed systems of law
have been drawn from ancient customs. The laws relating to succession,
inheritance, property, contract, sale of goods, negotiable instrument etc. are
evolved from early customary rules. In India, the personal law of Hindus which
has been codified after the Indian Independence, is nothing but customary law
which had been recognised by courts and embodied in judicial decisions from
time to time.1
With ~he emergence of legislation as a potential source of law-making,
the law-creative efficacy of custom has, no doubt, declined. The doctrine of
precedent has gained primacy over customary law in modem time but even then
at times courts do resort to ancient custom in order to remove inconsistency or
ambiguity in the existing law.
The relevance and importance of custom as a source of law has become a
highly debatable issue in modem legal system and its validity is challenged on
1. The Hindu Marriage Act, 1955: The Hindu Adoption & Maintenance Act, 1956 : The Hindu
Succession Act, 1956: The Dowry Prohibition Act, 1961.
 320 . JURISPRUDENCE AND LEGAL 1HEO~Y \
the groun.d of it being outdated or wholly irra~onal. Take the example of age-
old custom of banning women between ages of 10 and 50 from entering the
Sabaritnala Temple of Lord Ayyappa in Kerala on t~e ground that they could
be menstruating and .making the holy Shrine impure. This long cherished
.- practice (custom) which is highly prejudicial to women has been held
unconstitutional by the Supreme Court in one of its decision of November 2015
being against gender equality and out dated. However, it is a different matter
that reacting sharply against this order of the Supreme Court, the temple
priests have responded by saying that in that case, they would install a
'scanner' to detect whether woman is menstruating and allow her only if she is
found to be 'pure'.
Similar custom of banning women's entry in the inner sanctums of temple
prevails in Trimbekeswar temple 1 in Nasik. .
It is true that custom has lost its significance as a source of law in modem
age but it still exerts great · influence in certain areas such as personal law,
mercantile law and even the International Law. Particularly, in the area of
personal law, the need for a uniform civil code2 has been emphasised time and
again so that a rational law applicable to all-alike may be evolved. The
Supreme Court of India, in the historic case of Mohammed Ahmad Khan v.
Shahbano, 3 reiterated the need for a uniform civil code which could be
uniformly applicable to all the castes and communities living in India so that
differences as to caste and religion may be mitigated. It would be a progressive
step towards the attainment of the goal of welfare State. In this process, the
ancient customs of different communities shall have to be taken · into
consideration so that the uniform law so evolved conforms to Indian traditions.
ooi:J
1. Mere than 100 members of Bhumata Ranragmi Brigade tried to enter the inmbekeshwar
Shiv Temple in Nasik on Shivratri day on 7th March, 2016 agitating against ban on entry of
woman into the temples sanctum.
2. Art. 44 of the Constitution of India.
3. AIR 1985 SC 945.
14
LEGISLATION AS A SOURCE OF LAW
There are two obvious reasons for legislation being regarded as one of the
most effective sources of law. Firstly, it involves laying down of legal rules by
the legislature which the State recognises as law. Secondly, it has the force
and authority · of the State. It is for this reason that Dias has rightly said that
deliberate law-making by an authoritative power~ i.e., the State is called
'legislation' provided that authority is duly recognised as the supreme power
by the courts. 1 Undoubtedly, deliberate law-making is indispensable for the
efficient regulation of modem State.
Legislation mostly becomes the exclusive source of new law with the
advancing civilization. The power of supreme legislature such as the
Parliament of India or the U.S. Congress is strictly defined by a written
Constitution. The constitutional validity of a particular legislation may,
however, be challenged before a competent Court having jurisdiction.
Legislation-Defined
The term 'legislation' is derived from latin words, legis meaning law and
la tum which means "to make" or "set". Thus the word 'legislation' means
.'making of law'. Legislation is that source of law which consists in the
declaration of legal rules by a competent authority.
The term 'legislation' has been used in different senses. In its broadest
sense, it includes all methods of law-making. However, in its technical sense, (
legislation includes every expression of the will of the legislature, whethert
making law or not. Thus ratification of a treaty with a foreign State by an Act
of Parliament shall be considered law in this sense. But in strict sense of the
term, legislation means enacted law or statute law passed by the supreme or
subordinate legislature. ·
a
Jurists have expressed divergent views about legislation as source of
law. According to Bentham and John Stuart Mill, legislation includes both, the
process of law-making and the law evolved as a result of this process. The term
'legislation', is, however, restricted to a particular form of law-making,
namely the declaration of rules of law in statutory form by a competent
authority. It denotes promulgation of law by the legislature of the State. The
law that has its source in kgislation is called the enacted law or statute law.
Gray pointed out that legislation includes "formal utterances of the
legislative organs of the society".
T. E. Holland has interpreted the term legislation in its widest sense and
observed, "the making of general orders by our Judges is as true legislation as
1. Dias & Haghes : Jurisprudence, (1957) p . 94.
( 321)
322 JURISPRUDENCE AND LEGAL THEORY
carried on by the Crown". In his view, in legislation, both the contents and the
rules are devised and legal force is given to it by Acts of the sovereign power
which produce written law. With the advanci,ng civilisation, legislation ·tends
to become nearly exclusive source of new law.1 ,
Referring to legislation as a source of law in England, Blackstone pointed ·
out that the law that has its source . in legislation which may be most
accurately termed as enacted law, and all other forms may be distinguished as
unenacted law. In England, the former is called statute law while the latter as
common law. Blackstone prefers to call them written and unwritten law. Thus
the Acts enacted by Parliament are statutory laws as they proceed from
legislation whereas the customs which .have assumed the shape of law are
called common law in England. The common law is therefore, customary law
and unwritten in its nature.
According to Austin, legislation includes activities which result into law-
making or amending, transforming. or inserting new provisions in the existing
law. Thus there can be no law without a legislative Act.2 Austin further holds
that when a Judge establishes a new principle by means of his judicial decision,
he is said to exercise legislative power and not judicial power.
James Carter, a staunch supporter of the historical school of jurisprudence,
however, thinks that legislation is the least creative of the sources of law as it
is not possibl: to make law by legislative action alone. At the most it may
threaten a punishment as a consequence of a particular conduct and thus fumish
additional motive to influence conduct. It can be · effectual law when it is
reinforced by custom. 3
Salmond observed that legislation is that source of law which consists in
the d~cla_rati~n ?f legal rules by a c~mpete~t authority.4 According to him, the
term legislation as a source of law 1s used m three different senses. In its strict
sense, _it is that source from where the rules of law declared by competent
authority are framed. In its widest sense, legislation includes all methods of
law-making. In this sense, legislation may either be (i) direct, or (ii) indirect.
The law declared by legislature is called direct legislation whereas all other
ac~ions through which law is made are species of indirect legislation. In this
third sense, legislation includes every expression of the will of the legislature
whether making law or not.
Bo~enheimer d~scribes "legislation as a source of law which is applied to
the . deliberate creation of legal precepts by the legislative organ of the
Govern_ment which is set up for this purT'\ose and which gives articulate
express10n to such legal precepts in a formulised legal document".5
l. Holland T.E. Jurisprudence (13th Ed) p. 76.
2. Austin: furisprudence, Vol. III, p. 555.
3. Carter: Law, its Origin, Growth and Function, p. 130.
4. Salmond ; Jurisprudence (12th ed .) p . 115.
5. Bodenheimer: Jurisprudence p. 129.
LEGISLATION AS A SOURCE OF LAW 323
Supreme and Subordinate Legislation
Legislation may either be supreme or subordinate. Legislation is supreme
when it proceeds from the sovereign power in the State and is incapable of
being repealed, annulled or controlled by any other legislative authority. On
the other hand, subordinate .legislation proceeds from any authority other than
the sovereign power. It is dependent for its continued existence and validity on
some supreme authority. Thus in England the doctrine of padiamentary
sovereignty implies supremacy and omnipotence of the British Parliament.
Therefore, it possesses the power of supreme legislation. In India, however, the
Parliament is sovereign but not supreme although it possesses the power of
supreme legislation. 1 Legislation by bodies inferior to the sovereign constitutes
subordinate legislation.
Validity of Subordinate Legislation
In order that the exercise of delegated legislative power may be valid,
certain conditions must be satisfied. These conditions are:-
(i) The parent Act, i.e., the Act under which the power to make
subordinate legishtion is exercised, must be valid.
(ii) The delegation clause in the parent Act must be valid.
(iii) The statutory instrument so made, must be in confirmity with the
delegation clause in point of (a) substance,2 (b) proced·ure, and (c)
form.
(iv) The statutory instrument must not violate certain general norms
laid down by judicial decisions, e.g., norms regarding ouster of court
jurisdiction, imposing a penalty or tax, giving retrospective effect
etc. ·
( v) The statutory instrument must not violate any of the fundamental
rights 3 guaranteed by the Constitution or any other provision4 of
the Constitution.
Kinds of Subordinate Legislation
The chief forms of subordinate legislation are as follows:-
1. Colonial Legislation.-The British colonies and ·other dependencies
were conferred limited power of self-government in varying degrees by the
Imperial legislatu!"'e. The colonies in exercise of this power, enjoyed limited
power of law-making. But the laws so made by colonial governments could be
repealed, altered or superseded by the Imperial legiglature, namely, the
British Parliament. However, after the passing of the Statute of Westminster
1. In India Constitution is supreme hence Parliament is subject to constitutional limitations.
2. S.O.T. v. Abraham, AIR 1967 SC 1823.
3. Narendra Kumar v. Union of India, AIR 1960 SC 436; Air India v. Nergesh Merza , AIR 1981 SC
1829 (1853).
4. Harman Singh v. R.T.A., AIR 1954 SC 140; D.S. Mills v . Union of India, AIR 1955 SC 626;
Manubhi:li v. U.C.J., AIR 1961 SC 21.
324 JURISPRUDENCE AND LEGAL THEORY
of 1931, the self-governing Dominions unde~, the Crown have be~n given power
· to make law independently subject to nominal supremacy of the British Crown.
2. Executive Legislation.~The legislature,· i.e., the Parliament quite often
delegates its rule-making power to certain departments of tli.e executive organ
. of Government. The rules made in pursuance of this delegated power have the
force of law. They may, however, be repealed or superseded by the legislature
as and when deemed necessary to do ·s o. Keeton suggests that this species of
subordinate legislation has given rise to a vast body of rules known as
administrative law which is commonly called 'public law' because it describes
the nature of the activity of the executive department of the government in
action. 1 In France, it ~s known as droit administratif. Sir Ivor Jennings has
defined administrative law as "the iaw relating to administration which
determines the organisation, powers and duties of administrative authorities
in the State".
Executive legislation in India includes power to make rules, regulations
and bye-laws for administrative matters such as fixing of price, 2 or deciding
suitable place for market,3 taxation,4 setting up incorporated bodies5 etc. . instance, Railways have their own rules for the conduct of their business.
3. Judicial Legislation.-In certain cases, legislative power of rule-making
is delegated to the judiciary and the superior courts are authorised to make
rules for regulation of their own procedure in exercise of this power. This is also
known as judicial legislation which should not be confused with judicial
precedents where the Court formulates a new principle of law through its
judicial decision.
The Constitution of India has conferred the power of rule-making to the.
Supreme Court under Article 145. Similar power is conferred on the High Courts
under Article 227 of the Constitution. The Supreme Court and the High Court
may frame rules and regulations for the conduct·of its business and exercising its
supervisory power over the subordinate courts. Article 145 empowers the
Supreme Court to make rules relating to the following matters:-
(l) for setting up norms for practising lawyers;
(2) for the procedure of appeals and time-limit for such appeals;
(3) for proceedings relating to enforcement of fundamental rights;
(4) for transfer of cases to different High Courts;
(5) for disposal of criminal appeals coming from High Courts;
( 6) for laying down conditions for review petitions;
(7) for making rules relating to costs and fees etc.;
1. Keeton C. G . : Elements of Jurisprudence, (2nd ed.) p . 281 .
2. Union of India v. Cynide India Ltd., AIR 1987 SC 1802.
· 3. Ramesh Chandra v. State of Maharashtra, AIR 1981 SC 1127.
4. Dharumal v . Punam Chand, AIR 1978 SC 306.
5. Sunder Jus Bhathija v. District Collector, Pune, AIR 1990 SC 306.
LEGISLATION AS A SOURCE OF LAW . 325
(8) for making ruies for grant of bail, bonds, security etc.; ·
(9) for making rules relating to stay of proce.e dings;
(10) for laying down the procedure for the·reme>valof the Chairman or a
member of the Public Service Commission on charges of misconduct.
The rules framed by the Supreme Court under Article 145 are subject to two
limitations, namely, : (1) They should be under the law enacted by the
Parliament, and (2) the approval of the President is necessary for such rules.
4. Municipal Legislation.-The municipal authorities are allowed within
their areas to make bye-laws for limited purposes such as water-tax, land .
urban cess, property-tax, town planning, public health, sanitation etc'.
5. Autonomous Legislation.-The State may occasionally allow private
entities or bodies, such as universities, companies, corporation etc. to make bye-
laws for regulating the conduct of their business. These bye-laws are framed in
exercise of the rule-making power conferred on these bodies by the State. For
Delegated Legislation
It may be reiterated that legislation by executive is a kind of subordinate
· legislation. Undoubtedly, the main function of executive is to enforce law, but
for the regulation of its departments, the power of rule-making is delegated to
them. Strictly speaking, delegated legislation is a legislation made by any
authority other than the legislature. It denotes the rules, orders, notifications,
bye-laws or directions made by the executive authorities under the law passed
by the Parliament.
The term 'delegated legislation' is generally used in two senses. In one
sense, it means the exercise of power of rule-making by the Executive under the
authority delegated to it by the Legislature. In the other sense, it means the
output of the exercise of that power. In other words, when the function of
legislation is entrusted to organs other than the legislature itself; the
legislation made by such organs is called delegated legislation, which may be
in the form of rules, regulations, bye-laws, orders, schemes, directions, circulars
or notifications, etc. · ·
It is significant to note that there has been enormous increase of delegated
legislation in India in recent time. The situation today has reached a point
where delegated legislation out-numbers the legislative enactments.
Delegated Legislation Differentiated from Executive Legislation
It must, however, be stated that delegated legislation is not to be confused
with the executive legislation. The former stands for the laws made by the
authorities other t,-ian the legislative bodies on whom the Legislature
delegates its legisla.tive power. The latter stands for the laws made by the
President and the Governor respectively under Articles 123 and 213 of the
Constitution of India. These laws are in the form of Ordinances which have the

326 JURISPRUDENCE AND LEGAL
\ THEORY
..
force of 1aw. Such Ordinances are issued by''the respective executive heads on
the ground of urgency when Legislature is not in session and they cease to have
effect if not ratified within six weeks after the assembly of the Legislature.
The source of delegated legislation ~s always the Act of the Parliament
whereas the source of the executive legislation is a constitutional provision.
Growth of Delegated Legislation.-Professor Grifith writes that the
growth of delegated legislation in the 19th and 20th centuries was inevitably
due to fundamental changes in the theory and practice of the Government. For
the performance of their executive and administrative functions, the
government required legislative power_s in their own fields. The main factors
which contributed to the growth of delegated legislation may briefly be stated
as follows : -
1. The newly evolved concept of welfare State has caused tremendous
inc~eas~ in the work of the government which necessitated a huge bulk · o f
leg~slat~on. Th~ _Parliament hardly has time to deal with this wide range of
leg1sl~hon ~ff1c1_ently and, therefore, it concentrates only on defining the
essential legislative principles and leaves the details to be worked out by the
executive.
~- ~e Parliament found it difficult to lay down details especially in
certam fields of technical nature ·and therefore, entrusted this. task to the
de~a~~ents and ministers concerned. Members of legislature may be seasoned
p~hhc1ans ~ut they lack expertise and adequate knowledge to deal with
highly t~chmcal matters such as nuclear energy, electricity, gas, atomic energy,
e~c. which can be efficiently handled only by the experts in the respective
held.
~- Besides the pressure of work on the Parliament and lack of adequate
techmcal knowledge about certain subjects, delegated legislation is also
deemed necessa~ to meet unforeseen contingencies. It provides for a power of
constant adaptation to unknown future conditions without the necessity of
amending the legislation. . Rampur Municipality 3 held that t~e statutory provision requiring publication
4. Delega_te_d legislation is further deemed necessary to meet the cases of
e~erge~cy ansmg out of war, insurrection, floods, economic depression,
ep1demic_s etc. Th~ Executive must therefore, be armed with rule-making power
so _t~at it may initiate appropriate remedial action immediately without
wa1tmg for law to be passed by the legislature which is a lengthy process.
5. In certa_in specific areas such as rationing schemes, imposition of import
or export duties, exchange regulations, etc. expediency demands that law
shot~ld n~t ~ecome public till it finally comes into operation. Some kind of
co1:hdenhahty becomes necessary in the public interest and therefore, the
legislature prefers to delegate power of legislation on such matters to the
concerned executive authorities.
. 6. _The complexities of modern public administration and expending
dimensions of the socio-economic functions of the state have necessitated
LEGISLATION AS A SOURCE OF LAW 327
delegation of legislative powers so as to enable the executive to devi<:e new
forms of l~ws for the effective realization of the goal of socio-economic justice .
and implementation of the welfare schemes of the State.
Control of Delegated Legislation.-In order to ensure that delegated
legislation is not misused, it has been subjected to three-fold controls, namely, ·
(1) Procedural control, (2) Parliamentary control, and (3) Judicial control.
1. Procedural Control.-lt is not always possible for the Parliament to
exercise effective control over delegated legislation. Certain procedural
safeguards are therefore, necessary to keep a constant watch over the exerci$e
of power by the executive or administrtive authorities. The methods of
procedural control may include :-
(a) Prior consultation of interests which are likely to be affected by the
proposed delegated legislation;
(b) Prior publicity of proposed rules and regulations; and
( c) Publication of delegated legislation being made mandatory.
In United States, prior consultation with the concerned associations, such
as Medical Association or Country Councils Association or Board of Trade etc. is
common and interested parties are given opportunity to express their views on
the proposed legislation. In India, however, there is no express provision of law
for prior consultation but "prior publication" is essential1 under Section 23 of the
General Clauses Act, 1897. Likewise, Section 2 of the Statutory Instruments Act,
1946 makes it mandatory that a statute must be published as soon as it is
. laid before the House of Parliament. Though there is no such provision in India
but the courts have recognised the importance of this provision in several
cases. 2
Publication of delegated legislation has been taken by the Courts as a
corollary of natural justice. The Supreme Court in Raza Buland Suga.t Co. v.
of rules before imposition of tax was mandatory but the manner in which the
rules were required to be published was directory, and as there was sufficient
compliance with the requirement of publication, the rules were held to be
valid.
2. Parliamentary Control.-Another method of controlling delegated
legislation is to lay it before the Parliament so that members get an
opportunity to discuss and at times amend it. In United States, the executive is
not responsible to the legislature and therefore, congressional control of
delegated legislation is mostly indirect throv.gh requiring the administrative
l. Banwarilal Agarwal v. State of Bihar, AIR 1961 SC 841; see also Raza Buland Sugar Co. v. Rampur
Municipality, AIR 1965 SC 895.
2. Haria v. State of Rajasthan, AIR 1951 SC 467; see also Narendra Kumar v. Union of India, AIR
1960 SC 430 and Bangalore UniversihJ v. St. John Medical College, AIR 1980 SC 142 etc.
3. AIR 1965 SC 895.
 328 JURISPRUDENCE AND LEpAL THEORY
. \
agencies to submit periodical and special reports etc.1 India also follows more or
less the same method. 2 This control -is exercised through the committee on
subordinate legislation of both the Houses of Parliament which maintains
l LEGISLATION AS A SOl,JRCE OF LAW
vigilance on Government's rule-making power and scrutinises the rules framed
by the executive. 3
The prihciple underlying Parliamentary control is to keep watch over the·
rule-making authorities and provide an opportunity to criticise them if there is
abuse of such power on their part. The control so exercised may be in the form
of-(i) proceedings in Parliament, or (2) requiring the offending provision in the
delegating statute to be laid on the table of the legislature, or (3) exercise of
control by Parliament through Scrutiny Committees.4 _ children and this was "an open insult to Indian womanhood". The Supreme
3. Judicial Control.-Judiciary also exercises effective control on delegated
legislation. Whenever a law made by the executive is found to be
(i) inconsistent with the Constitution or (ii) ultra vires the parent Act from
_which the law-making power has been derived, it is declared null and void by
the court. The power of examining the validity of delegated legislation is
vested in the Supreme Court and the High -Courts. · discriminatory and violative of Article 14 because they restricted admission
In Re Delhi Laws Act case,5 the Supreme Court by majority held that the
exercise of delegated law-making power was invalid because the enabling Act
exceeded the constitutional limits in permitting the executive to repeal a law
existing in the area. In this case the Supreme Court laid down the grounds on
which the judicial control is exercised. The Court ruled that in India the
Legislature cannot delegate its essential functions or power to the executive.
The essential function of the Legislature is determination of the legislative
policy and enacting that policy into a binding rule of conduct. Therefore, the
function of laying down the policy and enacting that policy cannot be
delegated. However, once the policy having been laid down by the Legislature
and a standard is set by the statute, the executive may be given the power to
make subordinate rules within that limit and such delegation will not be
unconstitutional. Thus once the principles affording guidance to the subordinate
law-making body are laid down by the law; the details may be left to be filled
up by the executive or by other authorities with quasi-legislative power.6
Again, in Chintaman Rao v. State of Madhya Pradesh,7 the Central
Provinces Regulation of Manufacture of Bidis Act, 1948, permitting imposition
of a total prohibition upon those carrying on business of manufcture of Bidis
during agricultural season was held to be violative of Article 19 (1) (g) of the
l. Galloway : Congress & Parliament, p. 69.
2. Delegated Legislation Provisions (Amendment} Act, 1985.
3. For details see "Parliamentary Control of Delegated Legislation", Jain Public Law, 1964.
4. The Lok Sabha Committee on Subordinate Legislation was established under the
Constitution of India in 1953 and the Rajya Sabha Committee on Subordinate Legislation
came into existence in 1964.
5 . AIR 1951 SC 347.
A ,... rporation of Calcutta v . Liberty Cinema, AIR 1965 SC 110.
7. AIR 1951 SC 118.
Constitution because it interferred with the private business, hence· notification
under the Act was void. ·
329
In yet another land-mark decision,_ namely, Air India v. Nargesh
Meerza, 1 the Supreme Court struck down the delegated legislation on the
ground of non-conformity wjth the provisions of Article 14 of the Constitution..
The regulation provided that the services of the Air-hostess would be
terminated if she marries within first four .years of her service or on the first
pregnancy. The Supreme Court found the first condition reasonable but so far
condition of first pregnancy was concerned, it was clearly most unreasonable and
arbitrary as it amounted to compelling the .Air:..hostesses not to bear any
Court held that the regulation was not only, "manifestly unreasonable and
arbitrary" but it was most unfair and exhibited 'naked despotism' and was
therefore, held violative of Article 14 of the Constitution.
Likewise, in Deepak Sibal v. Punjab University, 2 the Supreme Court held
that Punjab University Rules for admission to the evening LL.B. classes were
only to the employees of government, semi-government and similar institutions
and excluded the employees of private sectors and meritorious students.
It is significant to note that in India the Court normally do not interfere
with the reasonableness or otherwise of a statutory rule.3 But in view of some of
the decisions of the Supreme Court after Maneka Gandhi v. Union of India, 4 it
can be concluded that any administrative rule-making can be challenged on the
ground of unreasonableness within the purview of Article 14. Thus in State of
Maharashtra v. Chandra Bhan Tale, 5 the Supreme Court struck down Rule 151
(1) (ii) (b) of the Bombay Civil Service Rules on the ground that they
were unreasonable. The Rules provided that a convicted government servant
shall be paid rupee one as subsistence allowance even during the pendency of
his appeal. The Court observed, "it was mockery to say that subsistence is
awarded when the award is rupee one a month". The rule was therefore, held
void.
In Jalan Trading Co. v. Mill Mazdoor Sabha, 6 the constitutional validity
of Section 37 of the Payment of Bonus Act, 1965 was challenged before the
Supreme Court. The Court declared the said provisions of the Act ultra vires on
the ground of excessive delegation and observed :
"Normally it is for the Legislature to remove doubts and
difficulties_ in giving effect to the provisions of the Act. Power to
remove -the doubts or difficulties by altering the provisions of the Act
1. AIR 1981 SC 1829.
2. AIR 1989 SC 909.
3. Mulchand v. Mukand, AIR 1952 Born. 296; also Subbarao v. I.T. Commr., AIR 1952 Mad 127.
4. AIR 1978 SC 597.
5. (1983) 2 sec 387.
- 6. AIR 1967 SC 691.
330 JURISPRUDENCE AND LEGAL THEORY
I
would in substance amount to exercise of Le~slative authority and that
cannot be delegated to an executive authority''.
Sub-Delegation
It is not uncommon for a body or a person to receive delegated powers
indirectly under a statute. The legislation so prnduced is in known is sub-
delegated legislation .. This state of affairs would appear to be in conflict with
the general principle that 'a delegate is not able to delegate further', i.e;, the
maxim delegatus non potest delegare. In other words, the general rule is that
where Parliament gives a power to make law for some specified purpose to a
body or person, it can be exercised only by that body or person alone. Thus in
India, sub-delegation of delegated legislative power without express authority
would be invalid 1 because a sub-delegated person or body cannot go beyond his
authority, 2 e.g., if Parliament confers p~wer upon A, the evident intention is
that it shall be exercised by A alone and not by anyone else.3
The Essential Commodities Act; 1955 provides a good illustration nf the
process of sub-delegation. Section 3 of the Act confers rule..;.making power on the
Central_ Government. Thi~ may obviously be called as the first stage of
delegation, namely, by Parliament to the Executive. Section 5 of the Act further
empowers the Central Government to delegate powers to its officers, the State
Govern~ent_ and their offi~ers. This may be regarded as the second stage of
delegation (z.e., sub-delegation). When the power is further sub-delegated by
the State Government to its officials, it may be characterised as the third stage
of delegation.
As a matter ?f fa~t sub-delegation is contrary to the maxim delegatus non
potest de~egare which means a delegate cannot further delegate his power. But
the maxim merely embod~es a rule of construction of a statute and does not lay
down a. r~le of l~w._ It 1s true that generally sub-delegation of legislative
powers 1s 1mperm1ss1ble, yet it can be permitted either when such power is
expressly conferred under the statute or can be inferred by necessa~ y
implication. 4
. At times, the Parent Act permits sub-delegation to authorities or
officers not below a particular rank. In such a circumstance, the power can
be delegated only to those officers or authorities. Thus where the enabling
Act conferred power on the Chief Commissioner to make rules for the
maintenance of proper system of conservancy and sanitation at fairs further
delegation of this power to District Magistrate was held to be ultra vires as
the enabling Act conferred power on the Chief Commissioner and not on' thP
District Magistrate. 5 -
1. ~~~j ri:.unjab v. Amir Chand, AIR 1953 Punj l; Pritam Bus Ltd. v. State of Punjab, AIR 1957
2. Bennett Coleman v . Union of India, AIR 1973 SC 106.
3. King Emperor v. Benoari Lal Sarma, (1945) AC 14 (24) PC.
4. Bhagwati v. State of Uttar Pradesh, AIR 1959 AU 332.
5. Ganpati Singhji v. State of Ajmer, AIR 1955 SC 188.
LEGISLATION AS A SOURCE OF LAW 331
Conditional Legislation
When a Legislature confers law-making power upon some other body; the
legislative . power is said to be delegated and it is a case of delegated
legislation. But when the Legislature itself enacts the law and gives to some
other body only the power of determining ·when it should come into force or
when it should be applied to a particular area or territory of the State, there is
no delegation of legislative power. Instead, it would be a case of conditional
delegation. Thus in delegated legislation, powers of legislation are transferred
or delegated which is not the case with conditional delegation. Conditional
delegation takes place where the Legislature empowers the executive to:
(1) extend the operation of an existing law to a particular area or
territory ;
(2) determine the time of application of an Act to a given.area;
(3) extend the duration of a temporary Act~ subject to maximum period
fixed by the Legislature ;
(4) determine the extent and limits within which it should be
operative;
(5) introduce a special law if the contemplated situation has arisen in
the opinion of the Government.
The distinction between subordinate legislation and conditional
legislation has been made clear by the Supreme Court. In Re Delhi Laws Act
case, 1 wherein the Court observed that when an appropriate Legislature enacts
a law and authorises an outside authority to bring it into force in such area or at
such time as it may decide that is· conditional legislation and not delegated
legislation. Pointing out the distinction between the two, the Supreme Court in
Hamdard Dawakhana v. Union of India, 2 inter alia, observed : -
"In conditional legislation, the delegate's power is that of
determining when a legislative declared rule of conduct shall become
effective, and the delegated legislation involves delegation of rule-
making power to an administrative agent. That means the Legislature
after having laid down the broad principles of its policy in the
legislation, can leave details to be supplied by the administrative
authority".
1
The above distinction was reiterated by the Patna High Court in
Raghunath Pandey v. State of Bihar, 3 wherein the Court observed that in a
conditional legislation, the law is complete in itself and certain conditions are
laid down as to how and when the law would be applied by the delegate.
Conditional legislation has proved to be very useful in implementing the
modern socio-economic welfare schemes. The Legislature usually formulates the
1. AIR 1951 SC 347.
2. AIR 1960 SC 554.
3. AIR 1982 Pat. l.

332 JURISPRUDENCE AND LEGAL,TIIEORY
development scheme, and leaves it to the admini\trative authority as to when
and where to implement them. Thus it confers ample discretion to the
government to implement various welfare legislatio°:s.
Legislation compared with other Sources of Law
Legislation as a source of law is gaining more and more importance in
modem time so much so that the significance of custom and precedent is
gradually receding. Historically also legislation·has always been recognised as
an important source of law as compared with other sources. It is therefore,
desirable to compare legislation with other sources of law, namely, precedent
and custom. · by Legislature being definite, written and comprehensive, they are easy to
Legislation and Precedent
Legislation as a source of law whe~ compared .with precedent merits
support for the reasons stated below :-
1. The legislation has its source in the law-making will of the State
whereas precedent has its source in judicial dt>cisions.
2. Legislation is imposed on courts by the Legislature but precedents are
created by the courts themselves.
3. Legislation denotes formal declaration of law by the Legislature
whereas precedents are recognition and application of new principles of law by
courts in the administration of justice.
4. Legislation is enacted before a case actually arises but the precedent
comes into existence only after the case has arisen and taken for decision before
the court.
5. Legislation is expressed in comprehensive form but the scope of judicial
precedent is limited to identical cases only.,
6. Legislation is generally prospective whereas precedent is retrospective
in nature.
7. Legislation is declared or published before it is brought into force but
precedent comes into force at once, i. e., as soon as decision is pronounced.
8. Legislation is undertaken with the intention of law-making but it is not
so in the case of precedent. The precedent which includes ratio decidendi and
obiter dicta is intended to settle a specific dispute on the point of law once for
all. 1 . inconsistency and overlapping". Thus codification implies collec.ion,
9. It is not difficult for the public to know the law enacted by Legislature
but the precedent based on case law is not easily known to the general public. At
times even the lawyers who deal with the law are ignorant about the existence
of a particular ruling of the Court.
10. Legislation involves law-making by deductive method whereas case-
law is created by resort to inductive method.
l. Austin: Lectures on Jurisprudence, (Vol. II), pp. 621-23.
LEGISLATION AS A SOURCE OF LAW 333
It would thus be seen that legislation as a source of law is far more
advantageous than that of the precedent. It is not merely a source of law, but is
equally effective in amending or annulling the existing law. Precedent, ,on the
other hand, cannot abrogate the existing rule of law. This, in other words,
means that legislation is both, constitutive and abrogative but precedent is
merely constitutive and lacks abrogative capability.
Legislation and Custom.-Pointing out the importance of enacted law over
customary law, Keeton observed that· in earlier times legislation was
supplemental to customary law but in modem time the position· has reversed
and customary law is treated supplementary to the enacted law. Laws enacted
understand. That apart, enacted law is created by Legislature therefore, it is an
expression of the general will of the peop]e. 1 A custom can be accepted as a
customary law only after it is practiced for a long time. Legislation as a source
of law differs from custom in the following aspects :-
1. The exsistence of legislation is essentially de jure whereas
customary law exists de facto.
2. Legislation grows out of the theoretical principles but customary
law grows out of practice and long existence.
3. Legislation as a source .is historically much latter as compared
with custom \Yhich is the oldest form of law.
4. Legislation is an essential characteristic of modem society whereas
the customary law has developed through primitive societies.
5. Legislation is complete, precise, written in form and easily
accessible, whereas customary law is mostly unwritten (jus non
scriptum) and is difficult to trace.
6. Legislation results out of deliberations but custom grows within the
society in natural course.
7. Legislation expresses the relationship between men and the State
but customary law is based on relationship between men inter se. 2
Codification of Laws
Codification means "the reduction of the whole corpus juris so far as
practicable, in the form of enacted law. 3 Literally speaking, Code denotes "a
systematic collectio:r. of statutes, body of laws so arranged as to avoid
compilation, methodical arrangement and systematisation of whole body of
laws so that they are reduced in the form of general principles and rules.
In ancient Rome, Justinian compiled the mass of Roman laws into what
was known as the Justinian Code. In France, Napoleon Code was compiled in
1. Keeton C. G . : The Elementary Principles of Jurisprudence, p. 82.
2. Allen C.K. : Law in the Making, (5th ed.). p. 434.
3. Salmond on Jurisprudence, (12th ed.), p. 130.
 334 JURISPRUDENCE AND LEGAL THEORY
early 19th century .. The credit of codification of ~nglish law goes to noted law
reformer, Jeremy Bentham as until the middle of nineteenth century, England
was averse to codification of laws, so much so, that Bentham had to publish his
· work 'Principles of Legislal:ion' in French language in France. It was later
translated into English and gained popularity as a classic work to turn legal
. opinion in favour of codification of English common law in ~ubsequent ye~s.
Bentham firmJy believed that it was possible to prepare an ideal code which
would facilitate determination of every possible legal controversy and leave no
scope for Judicial law-making.
Sa.,vigny, was, opposed the codification of law but Sir Henry Main~
supported codification in England. The Jewish Code, the C~de of _Ham~urab1
and the Chinese Code· are some of the oldest codes which existed m late
eighteenth Century.
In India, the process of codification of laws is known to be in existence from
the ancient time. The code of Manu, Yajnavalkya, Brihaspati and Parashar
were compiled in Vedic age which contained the rules of Hindu law and
religion. During Moghul period in India, the codification of laws was given
priority by Moghal rulers. King Aurangzeb got a code on Hindu law compiled by
Raghunandan Shastri of Bengal which was known as 'Fatwa-a-Alamgiri.'
The beginning of codification of the existing Indian laws can be traced
back to 1833 when the First Law Commission was appointed with Lord
Macaulay as its Chairman under the provisions of Charter Act, 1833. This
Commission prepared Drafts 1 of certain codes, notably, the Indian Penal Code, 2
the Civil Procedure Code and the Limitation Act. 3 The Second Law Commission
was appointed by the Charter Act of 1853 to complete the work of codification
of laws started by the First Law Commission. Consequently, the Indian Penal
Code was enacted in 1861 and it was followed by the Code of Criminal
Procedure. Thereafter, Law Commissions were set up again in 1861 and 1879
which drafted and revised many Acts. In course of time all civil and criminal
laws and procedural laws were codified.
Consequent to the integration of Indian princely States into Indian Union
after the independence of India, there was dire need for a codified law to be
uniformly applied throughout the country. This eventually led to codification
of a number of laws to be uniformly applied to all citizens throughout the
country, such as the law relating _to inheritance and succession, taxation,
marriage, divorce, adoption, maintenance, religious and charitable
endowments etc.
The Government of India appointed a permanent Law Commission on
August 5, 1955 to review the existing Central Acts and recommend lines on
1. The First Law Commission submitted a report known as Lex Loci Report to the Government
on October 31, 1840 suggesting that substantive law of England should be declared as lex loci
(law of the land) in India.
2. The First Law Commission submitted Draft Penal Code to the Government on May 2, 1837.
3. The Draft Code of Law of Limitation was prepared m 1942.
LEGISLATION AS A SOURCE OF LAW 335
which they may be revised, amended, consolidated or brought upto-date and
also suggest measures of reform in the existing judicial system to make it more
effective and efficient. Law Commission has been re-constituted twenty-one
times and has submitted 264 Reports till, 1':1arch, 2016.
The Law Commission has been doing a commendable work for more than
fifty-eight years. It has made valuable recommendations about law and
administration of justice in India.
Merits and Demerits of Codification
Writers have expressed different views about codification of laws. Some
of them have commended while others have denied its importance. The
greatest merit of codified law is its simplicity, certainty, and uniformity,
intelligibility and logical coherence. It eliminates the chances of personal
discretion in deciding cases. This, however, does not mean that precedent has no
importance at all. The main object of codification is to acquaint people with a
particular law so that they can regulate their conduct accordingly and avoid
law-violation. Pointing out the importance of codification of laws, Sir James
Stephen observed, "well-designed legislation is the only possible remedy
against quibbles and chicanery and all evils which are created from legal
practitioners can be averted by this method".
Salmond and Austin have asserted that codification is necessary and
useful for the development of society. But jurists like Pollock, Paton and
Savigny have opposed codification of laws.
Savigny holds that codification not only obstructs natural growth of law
but gives rise to several defects in it such as rigidity etc. He further points out
that historically also the absence of codification was never felt when laws
were uncodified in early societies.
According to Paton, codification putrifies the law at the stage at which it
is codified and there is little scope for applying it to ·new situations unless it is
amended or modified. Similar views have been expressed by Justice Cardozo
who observed, "the law like the traveller must be ready for tomorrow. It must
have principle of growth".
Lord Mansfield opines that codified law cannot be as useful to developing
society as· the uncodified law is. Expressing similar views Cockburn observed
that as against codified law, uncodified law has at least one advantage that it
is its elasticity which enables the administrator to adapt it to varying
conditions of society.
Despite the shortcomings of codification of laws, it must be accepted that
its contribution to the development of laws has been commendable. In modern
time, codification of laws has become one of the essential attributes of an ideal
judicial system. Most of the countries have already codified their laws and
they are constantly revising or amending them to meet the exigencies of time. In
India, most of the laws have been codified and they have been quite successful

JURISPRUDENCE AND LEGAL THEORY .
336
in meeting the needs of Indian society so f'r administration of justice is
· or the functional interpretation. .
concerned.
Taking an overall view, it can be stated that the merits of enacted laws
far outweigh its demerits and the general tendency today is towards
codification. This, however, should not lead to a mistaken impression that
codification means complete abolition of precedents (case law) and customary
law. They have their own importance as supplement to the enacted co~es. The
American Law Institute is engaged in working on Restatement of American Law
with a view to reconciling the conflicting claims of enacted law and case la~.
The Restatement of the American Law of Torts is a unique example of this
process.
Interpretation of Enacted Law
Legislation and interpretation are closely inter-related. The words in
which a law is expressed, namely, litera scripta constitut~ a part of the law
itself. To interpret law is the function of the cou~t. It_ Is the ~uty of the
judicature to discover and to act upon the. t~e intention ~f ~e legislature. ~e
essence of Jaw lies in its spirit and not m its letter. This IS called sententia
legis. Nevertheless, in all ordinary cases t~e cou~ts must be content ~o ac~e~t
the litera legis as the exclusive and conclusive evidence of the sententia legzs.
Interpretation-Oefinition
Salmond has defined interpretation as "that process by which the courts
seek to ascertain the meaning of the law through the medium of the
authoritative forms in which it is expressed". Thus it involves giving effect to
the intention of the legislature. It is always pertaining to law and it is the
function of the court to interpret law.
According to Maxwell, the dominant purpose of int~rpr~tation is to
determine as to what intention is conveyed expressly or impliedly by the
language used so far as necessary for determinin~ w~e~her th~ particular cas~ ~r
state of facts presented to the interpreter falls withm 1t. In s1~pler word~, 1t IS
through the process of interpretation that the Courts to asertam the meanmg of
a particular legislation.
Kinds of Interpretation
From the above, it is gathered that interpretai:ion is of two kind_s-
(1) Grammatical (literal), and (2) Logical (~unctional). G_rammatical
interpretation implies that the meaning of the law IS to be sought m the actual
words used in it, which are to be understood in their ordinary and natural
meaning. In other words, where there is no ambiguity in th~ lan_guage emp_loye~
by the statute, no other interpretation_ except ~ram~atical mt~rpretation IS
permissible. This is known as litera legis or the literal interpretation of law.
Logical interpretation, on the other hand, is that which departs ~rom the
letter of the law and seeks elsewhere or some other or more satisfactory
1. P.J. Fitzgerald: Salmond On Jurisprudence, (12th ed.) p. 182.
LEGISLATION AS A SOURCE OF LAW 337
evidence of the intention of ·the legislature. This is known as ''sententia legis"
.
The Golden Rule of Jnlerpretation
The main purpos~ of judici~ interpretation i~ to ascertain the intention.of
~e legisla!11re. In ordina~. cases the Jud~es must resort to grammatical
mterpretabon for ascertammg the true . intention of the Legislature. As
observed in _Sussex Pearage case, 1 "if the words of the statute are in themselves
:precis~ and unambiguous~ then no more can be necessary than to expound words
m th~1r natural and or~mary sense. The words themselves alone do,. in such
cases, best declare the intention of the law-giver".
· Lord Wensleydale, in Gray v. Pearson2 called grammatical interpretation
as the "golden rule" for the interpretation of statutes. He observed that in
construing statutes and all other written instruments, "the grammatical and
ordinary sense of the words is to be adhered to unless that would lead to some
absurdity or some repugnancy or inconsistency but no further".
In Becke v. Smith, 3 Parke, J., _summarised the 'golden rule' and
observed, "it is a very useful rule in the construction of a statute to adhere to the
ordinary meaning of the words used, and to the grammatical construction, unless
that is at variance with the intention of the Legislature, to be collected from
the statute itself, or leads to any manifest absurdity or repugnance, in which
case the language may be varied_; or modified so as to avoid such
inconvenience".
In Crawford v. Spooner, 4 delivering the judgment of the Judicial
Committee, Lord Brougham observed, "the construction of an Act must be taken
from the bare words of it. We cannot fish out what possibly may have been the
intention of legislature. We cannot add and mend and by construction make up
deficiencies which are left here" ...
Salmond points out that though the literal interpretation must be
accepted and applied as a general rule, but it should be applied very carefully.
It should not be followed if the statute is apparently defective, i.e., suffers
from (i) ambiguity, or (ii) inconsistency, or (iii) law in itself is incomplete, the
Court may go beyond the words of _the statute and take help of other sources.
This is called the Golden Rule of interpretation.
The Supreme Court in Additional Commissioner of Income Tax v. Surat Art
Silk Cloth Manufacturer's Association5 observed that if the language of a
statutory provision is ambiguous and capable of two constructions, that
construction must be adopted which will give meaning and effect to the other
provision of the enactment, rather than which will give none.
1. 8 ER834.
2. 10 ER 1216.
3. (1854) 3 Co. Rep. 7a.
4. 18 ER667.
s. (1980) 2 sec 31.

338 JURISPRUDENCE AND LEGAL THEORY
Upholding the need for functional interpretation of statutes, the
American Supreme Court in United States v. American Trucking Association, 1
observed that "where the plain meaning leads to absurd or futile results, the
Court in~y l()ok beyond the words to the purpose of the Act. Even when the
· .plain meaning does not produce absurd results, but merely an unreasonable one,
plainly at variance with the policy of legislation as a whole, the Court should
follow the purpose rather than the literal words,".
Logical Interpretation
There are certain principles which guide the Courts in interpreting the
law in the case before them. Generally, the Courts must be content to accept
literal interpretation as a rule. That is to say, they must take for granted that
the legislature has expressed in the enactment what it meant, and meant what
it has said. In other words, Judge are not at liberty to add or take away or
modify the letter of the law simply 'because they have reason to believe that
the true sententia legis is not completely or correctly expressed in the
enactment. However, it is only in cases where the language of the law is
logically defective or there is ambiguity, inconsistency or incompleteness in the
enactment that the Courts may resort to Sententia legis, i.e., logical
interpretation. This has been called as a golden rule of interpretation to avoid
absurdity of law.
In actual practice, however, both the grammatical and logical,
interpretations are equally important. According to Salmond, maintenance of a
just balance between the two forms of interpretation is most important and at
the same time dangers in each have to be avoided. He argued, "undue laxity on
one hand sacrifices certainty and uniformity of law to the arbitrary discretion
of Judges which administer it, while undue strictness on the other hand,
sacrifices the intent of the legislature and the rational development of the law
to the _tyranny of words". 2
The Ejusdem generis Rule
It is .necessary to discuss the rule in ejusdem generis in relation to the rule
of grammatical interpretation. According to this rule, a sweeping clause in a
statute which says "all other articles whatsoever" may be interpreted to mean
only articles of the same genus or species as those expressly dealt with by the
statute. To illustrate, Section 412 (a) of the Bombay Municipal Act required a
licence to be taken before sale of milk, butter or milk product. Applying rule of
ejusdem generis the High Court of Bombay held that term 'milk product'
includes curd, cream etc., but not 'ghee' because 'ghee' is not perishable in nature
whereas items produced from milk are perishable.3
Salmond gives an interesting example of ejusdem generis which serves to
restrict the meaning of general words to things or matters of the same kind as
the preceding particular words. If a man tells his wife to go out and buy butter
1. 310 us 534.
2. Salmond : On Jurisprudence. (12th ed .) p . 140.
3. Ratansi Dheerji v. Emperor, AIR 1929 Bom. 274.
LEGISLATION AS A SOURCE OF LAW 339
milk, eggs and anything else she needs, he will not normally be understood to
include in the term, 'anything else she needs', a new hat or an item of fumiture.1
For the applicability of the rule of ejusdem generis, it is essential that the
enumeration of words before the general words must constitute a category or a
genus which admits a number of species. Thus~ in the case of ]agush Chandra
Gupta _v. Kajaria _Traders (India Ltd),2 Hidayatullah J explained the principle
giving the following illustration : ·
"In the expression books, pamphlets, newspapers and other documents,
private letters may not be held to be included if 'other documents' be
interpreted ejusdem generis with what goes before."
· However, the Supreme Com:t iri UPHSC Board v. Hari Shankar? held
that the rule of ejusdem generis is one which has to b¢ applied with caution ~nd
it should not be pushed too far.
It must be remembered that where words are clearly wide in their
meaning, they ought not to be restricted or qualified on the ground of their
association with other words. As held in Allen v. Emmerson, 4 where a local Act
required that "theatres and other places of entertainment" 'should be licensed,
the question arose whether fun-fair for which no fee was charged for admission
was within the Act. Answering in the affirmative (i.e., yes it is so) the court
held that the rule of ejusdem generis did not apply to confine the words "other
places" to places of same kind as theatre. ·
The Mischief Rule
Yet completely different approach to statutory interpretation is
enshimed in what is known as the Mischief Rule. The rule was first enunciated
in Heyden's case. 5 When the true intention of the Legislature cannot be
determined by the language of the statute in question, the court may consider
the historical background underlying the statute, i.e., the circumsances under
which the Bill was introduced and it finally became law. The Act is to be
interpreted in such a way as to suppress the mischief and advance the remedy.
The case of Garris v. Scott, 6 illustrates the rule. In this case the statute
provided that animals carried on board a ship should be kept in pens. The
defendant shipping company failed to enclose the plaintiff's sheep in pens, and
the sheep had been washed away by a storm. It was proved that if sheep were
kept penned as required, they would have not been washed away. The English
Court however, rejected the plaintiff's suit for breach of duty on the ground
that the Act had been passed to prevent infection spreading from one animal to
another and should therefore, not be used to provide for an altogether different
mischief. ·
1. Salmond on Jurisprudence. (12th ed.) p. 135.
2. AIR 1964 SC 1882 (1885).
3. AIR 1979 SC 540 (545).
4. (1944) KB 362.
5. (1584) 3 Co. Rep at 7b.
6. (1874) LR 9 Ex ch. 125.
340 JURISPRUDENCE AND LEGAL THEORY ·-.
f
The Heyden' s case has now attained the tatus of a classic. In Kanailal v. _
Parmanidhi,1 Mr. Justice P.V. Gajendragadkar ,r ightly pointed that in order to
ascertain the policy, intent or object of a particular enactment or the mischief
which the Act seeks to remove, the Heyden's Rule of 1584 may be applied
provided that the language used in the Act is capable of being .interpreted in
two different ways.
The Supreme Court of India in Bengal lmmun}ty case2 applied Heyden's
rule in construction of Article 286 of the Constitution in order to remove the
chaos and confusion that was brought about in inter-state trade and commerce
by indiscriminate exercise of taxing power by the different provincial
legislatures founded on theory of territorial nexus. Chief Justice S.R. Das
observed, "it was to cure this mischief of multiple taxation and to preserve the
· free flow of inter-state trade or commerce in the Union of India regarded as one
economic unit without any provincial barrier that the Constitution makers
adopted Article 286 in the Constitution..·
The Supreme Court again made use of Heyden's Rule in the construction of
Section 2 (d) of the Prize Competition Act (42 of 1955). The question before the
Court .was ·whether in view of this definition, the Act was applicable to
competitions 3 which involve substantial skill and not in the nature of
gambling. The Court observed that having regard to the history of the
legislation, the declared object thereof and the wording of the statute, we are
of the opinion that the competitions which are sought to be controlled and
regulated by the Act are only those competitions in which success does not
depend to any substantial degree of skill.
Restrictive and Extensive Interpretation
When litra-legis suffers from ambiguity, liberal interpretation may be
resorted to. Liberal interpretation may either be restrictive or extensive. The
restrictive interpretation is applied to penal and fiscal statutes. These statutes
impose restraints on the liberty of a person or on enjoyment of property. In such
cases courts are against interpreting these statutes which impose a greater
burden on the subject than warranted by literal meaning of the statute.
In extensive interpretation, the words are given a wider meaning not
warranted by the familiar usages of speech. The case of Nisbet v. Rayne and
Burn 4 is an illustration on the point. In this case, Nisbet was a cashier of the
defendants-a firm of coalmine owners. It was a part of his duty to take every
week from the office to the colliery, the cash out of which the wages of the
employees were paid. While doing so, Nisbet was robbed and murdered. His
widow claimed damages under the English Workmen Compensation Act, 1906.
Section 1 of the Act provided that when a w,rkman meets his death by an
accident arising out of or in the course of his employment, his widow may claim
1. AIR 19.57 SC 907.
2. AIR 1955 SC 661.
3. RMDC v . Union of India, AIR 1957 SC 658.
4. (1910) 2 KB 689.
341
LEGISLATION AS A SOURCE OF LAW.
damages from the employers. The defendants argued that murder cannot be
considered as an accident within the meaning of said Section 1 of the Act
because accident implies absence of intention while murder is a deliberate and
intentional act. Lord Justice Kennedy agreed with this view that a murder
cannot be honestly called an accident put he considered his duty to stretch the
meaning of the word "accident" from narrower t~ the wider sense. An unforeseen
and untoward event like murder producing_personal harm may well not be
excluded from the operation of the section because it is quite unreasonable to
support that the legislature did not intend to include this within it.
Historical Interpretation
At times when the language used in a statute gives no clue to the intention
of legislature, courts may consider the historical circumstances attending the
local enactment. But historical interpretation cannot be stretched too far. Thus
Lord Wrenbury observed, "the debate upon the bill, the fate of amendments
proposed an~ dec>Jt with by the Committee of either House cannot be ~eferred
to, to assisfln construing the language of the Act as ultimately passed into law
with the Royal assent".
In several cases it becomes necessary to take the help of preamble to know
the real intention of the legislature. Preamble is a key which opens the gat_e
way to the thoughts of legislators while framing a particular statute ~d it
quite often helps in remedying the mischief. 1 But if the language used~ the
statute is unambiguous, then its scope cannot be unduly extended by resorting to
preamble.2 Likewise, general headings and marginal notes 3 can be used to
remove ambiguity or uncertainty of a statute. . .
Interpretation ~nd Construction Distinguished _
Sir John Salmond defines interpretation or construction as the process by
which the court seeks to ascertain the meaning of the legislature through the
medium of the authoritative forms in which it is expressed. Although these
two terms appear to connote the same meaning but i1: fact it is ~ot _so.
Interpretation differs from construction in that the forme: is th~ art o! finding
out the true sense of any form of words, that is the sense m which their au!hor
intended to convey and enabling others to derive from them the same_ idea
which the author intended to convey. Construction on the other hand, is the
drawing of conclusions, respecting subjects that lie beyond the direct _express~on
of the text from elements known from and given in the text, conclusions which
are in the spirit, though not within the latter of the text.
Interpretation only takes place if the text conveys son:e meanin~ or the
other. But construction is resorted to when in comparmg two different
writings of the same individual or two different enactments by the
same legislative body, there is found contradiction or where there was
1. Mudaliar v. Venkatachalam, AIR 1956 SC 246.
2. Venkataswamy Naidu Vi· Parasram Das, AIR 1966 SC 36.
3. Walkis v. Godwin, (1923) 2 KB 86.
 342 343
JURISPRUDENCE AND LEqAL THEORY LEGISLATION AS A SOURCE OF LAW

evidently n:o intention of such contradictio \ . Explaining the rule of harmonious construction, Justice P. B.
:Vriting or declaration contradicts the r~;r :here it h~ppens th~t part of a Gajendragadkar in Madanlal Fakirchand Dudhediya v. Shri Shangdev Sengar _
statutes do not interpret themselves and ·t : ,s. ~ray right~y pomted out, Mills Ltd.,l observed:
the cour_ts, and with no other meani i ~s wit the m~amng declared by
community as law". ng, t at they are imposed upon the "The sub-sections must be read as parts of an integral whole and as
being inter-dependent, an attempt should be made in construing them to
. . _The word interpretation fo its wid t , . . reconcile them if it is reasonably possible to do so and to avoid repugnance."
activities of the Judgas· • f es sense, Indicates the collective
. . · · · ~ In so ar as they may · . . The legislature usually provide a non-abstante clause i.e.
extend, restrict or modif th . . , m exercise of their functions
statutory form In·:its y e operation_of a rule of law which is expressed in a "notwithstanding anything contained in section ...... " to avoid head on clash
· narrowest sense th d • between the provisons of two sections in the same statute so that the conflicting
explanation by the Judges of the me . , f e wor interpretation means the
O th provisions are construed harmoniously.2
statute. anmg e words or phrases contained in a

Hannonious Construction : General Rules of Interpretation

It is well settled that when two r . . . . As said earlier, the courts are bound by litra legis or the literal words of a
with each other they tho ld b _P ov1s10ns m an enactment do not reconcile statute. It is only in exceptional case of ambiguity, uncertainty or incomplete
both. In other , words . :~en ~;o mterp_r~ted that effect be possibly given to meaning of the statute that sententia legis or rule of liberal interpretation is to
applicable in a given c~se a o prov1s10ns of the same statute become be applied. The cardinal · rule for the interpretation of Acts of Parliament is
avoid futility of _the stt1tu'te. lharrnomous construction should be given so as to that they should be construed according to the literal meaning conveyed by
them. Thus in State of Kerala v. Mathai Vergese 3 the Supreme Court applied
. The basis of the principle of harm . . . the rule of literal interpretation while observing that the expressions
legislature must not ho.ve . t d d omous construction probably is that the
same statute. For instance 1n1_netnh e to put two contradictory provisions in the 'currency-note' and 'bank note' in Sections 489A and 489E used in Foreign
e · case of M · S ·M · Sh arma v. Krishna Sinha 2 the Exchange Regulation Act have not been prefixed by the word 'Indian' and
pet·t·
1 1oner, an editor of ,
therefore, the intention of the makers of the law is clear that these expressions
should not be punish~d ~o:e::~:per was ~s_ked to show cause as to why he
are not limited to only Indian currency notes and Indian bank notes and they
Article 194 (3) of th«! Constitutio;c; of pn~ile_ge of the House guaranteed by
include those of any other country of the world as well. The purpose is to
Legislative Assembly without ex ~~ ~ubhshm~ a speech made in the State
maintain market respectability and that the people must be assured that the
Speaker. In a petition under A t· ~ ~ng certain remarks directed by the
notes which they are dealing with are not worthless pieces of paper.
proposed action against him r l1dc eb of the Constitution, he argued that
expre · · wou e contrary to the f d f However, the Courts have framed certain general rules for ascertaining
ss10n, guaranteed by Article 19 (1) .( ) f h ree om o speech and
Court held that e)( edien a o t e Constitution. The Supreme the literal meaning of the words used in a statute. Some of these rules are as
Constitution. The Sup~eme cC:ur1~::nt~:d that. Article 19 (1) (a) of the follows:-
19 (1) (a) and Article 194 (3) had to be h t ex~ed1ency demanded that Article
1. As a rule, the words of the statutes must prima facie be given their
to both these provisions contained in the ~;on!ou~ly interpreted to give effect
ordinary meaning. That is to say, so long as the meaning of the statute is clear,
that fundamental right of freed f nshtuhon. It was necessary to hold
certain and unambiguous, Judges should not apply their opinion to modify the
(a) -~as subject to thE? privile ~-:no~ speech and expression under Article 19 (1)
meaning of the words used in the statute.
petition was, therefore dismis~ed. House guaranteed by Article 194 (3). The
2. Yet another important rule of interpretation is that a statute must be
In Waverly Jute Mills v Ra mond 3
read as a whole in order to give effect to the intention of the framers of it. As
that the entries in the variou~ lists . & Co. the Supreme Court observed
should be so construed as to . ~ the Seventh Schedule of the Constitution observed by Lord Davey", every clause of a statute should be construed with
will result in any of them b ~1ve e ect to all of them and construction which reference to other clauses of the Act". Thus in S. Gopal Reddy v. State of
Where two entries e>n emg rendered futile or otiose must be avoided Andhra Pradesh, 4 the Supreme Court while holding that the Dowry
former must be con;true~ !se:crlald~n ittsh clharacter and the other specific th~ Prohibition Act, 1961 prohibits not only actual receiving of dowry but also the
u mg e atter. ' very demand of dowry made even before the marriage, observed that the text
-~l-.-A:;-_~N~.-:R--:-oy_v_S::-u-r-es_h__S_h_____
AIR 2005 SC 648. ayam Szngh, AIR 2006 SC 2677 See also Nathi Devi v Radh D · 1. AIR 1962 SC 1~3 (1557).
2. Krishna Kumar v. State of Rajasthan, AIR 1992 SC 1789.
2. AIR 195g er 395 _ · a ev1 Gupta,
3. AIR 1987 SC 33.
3. AIR 1963 SC 90 See . .
. , also Gtam Bakshish Singh v. Union of India, AIR 1973 SC 2667 etc. 4. AIR 1996 SC 2184.
 344 JURISPRUDENCE AND LEGAL TiffiORY
and context of the entire Act must be looked \nto as a whole while interpreting ·
any of the expressions used in a statute. The Courts must look to the object ·
which the statute seeks to achieve while interpreting any of the provisions of
the Act. A purposive approach for interpreting the Act is necessary.
3. It is not competent for any court to proceed upon the assumption that the
.legislature has made a mistake. The court must pr~ceed on the footing that the
legislature intended what it had said. Even if there is some defect in the
phraseology used by the legislature, the court cannot aid the legislature's
defective phrasing of an Act or add and amend or by construction, · make up
deficiencies which are left in the Act. Even when there is causus omissus, it is
for the others than the courts to remedy the defect. 1
4. For the sure and true interpretation of all statutes in general whether
they are penal or beneficial, restrictive. or enlarging of the common law four
things are to be discussed and considered :
First-What was the common law before the making of the Act;
Second-What was the mischief and the defe_ct_ for which the commo~
law did not provide;
Third-What remedy the Parliament has resolved and appointed to cure
the wrong; and
Fourth-The true reason of the remedy.
The function of the Judges is always to make such construction as shall
suppress the mischief and advance the remedy.2
5. No statute shall be construed to have retrospective operation unless
such a construction appears very clearly in the terms of the Act or arises by
necessary or distinct implication. It is the cardinal principle of construction
that every statute is prima Jacie prospective unless it is expressly or by
necessary implication made to have retrospective operation. A new law ought
to regulate what is to follow and not the past.
It must however, be noted that the statutes dealing with substantive
rights and merely with matters of procedure are presumed to be retrospective
unless such a construction is textually inadmissible. In other words, if the new
Act affects matters of procedure only, then prima fade, it applies to all actions_
pending as well as future. Clarifying the reason fq_r this rule, the Supreme Court
in Anant Gopal Sheorey v. State of Bombay3 has reiterated Maxwell's view
that no person has a vested right in any course of procedure.
The rule is applicable in the operation .of taxing statutes which are
generally governed by the normal presumption that it is not retrospective in
operation and as far as possible, tax statutes should not be so construed as to
1. Nalinakhya Bysack v. Shyam Sunder Haldar, AIR 1953 SC 148.
2. Heyden 's Case and Mischief Rule (supra).
JR 1958 SC 915.
LEGISLATION AS A SOURCE OF LAW 345
affect finality of tax assessments or to open up liability which had become
barred or exinct.1 ··
•. 6. It is an also important rule of interpretation that a general later law
does not abrogate an earlier special law by mere implication. The rule is
contained in the well known maxim g~neralis specialibus non derogant which
means that where there are general words in a later Act capable of reasonable
and sensible application without extending them to subjects. specially de~lt
with by earlier legislation, it cannot be construed that earlier and special
legislation is indirectly repealed, altered or derogated _me~ely by the_ f<;>rce of
those general words. To illustrate, the rule was apphed m _R._ v. Minister. of
Health2 to prevent Section 65 of the Housing Act, 1925 overriding the special
provisions of the London Open Spaces Act, 1893. Similarly, the. general
provisions of the English Married Women's Property Act, 1882 which gav~
power to a married woman to dispose by will any of her real or personal
property in .the same manner as if she were a Jeme-sole was held not to over-
ride the special provisions of Gifts for Churches Act, 1803 (repealed ~y Church
of Ireland Acts Repeal Act, 1851) which provided that a gift by will for the
purpose of erecting a Church should not extend to the case of married woman
acting without the concurrence of her husband.
7. The meaning of the word may be affected by its context. This is known as
the rule of noscitur a socis which means that the meaning of a word be judged by
the company it keeps. 3 Thus sometimes the word "void" used in~ statute may
also mean "voidable" in the context of reference to that Act. To illustrate the
point further, the word "telegraph" used in the Telegraph Act of 1_863 and 1869
in England included within it the word "telephone" also, as both were deemed
to connote the same meaning in the context of that Act. 4
In the case of Pradeep Agarbatti, Ludhiana v. State of Punjab,5 the w~rd
'perfumery' had to be interpreted in Entry 16 of Schedule A. of t~e Punpb
General Sales Tax Act, 1948, which reads 'cosmetics, perfumery and t01let go<;>ds
excluding tooth paste, tooth powder, KumKum and soap'. Applying the noscztur
a socis rule, the Supreme Court ruled that the word could mean_ only such
articles as are used as cosmetics and toilet goods and therefore, this does not
include 'dhoop' and 'agarbatti'.
8. It is the rule of interpretation that penal statutes must be const~ed
strictly. In case there is any doubt about the meaning of a wo~d or_ phrase ma
penal statute it should be construed in favour of the accused. This: h~wever,
does not empower the court to twist the meaning of the word which is clear
and unambiguous for the sake of beneficial construction in favour of the accused?
1. Banarasidas v. Municipal Committee, Wardha, AIR 1958 SC 341.
2. (1936) 2 KB 29.
3. Atlantic Smokes Shops Ltd. v. Comlin, 1943 AC 550 (PC).
4. Attorney-General v. Edison Telephone Co., (1881) 6 QBD 224.
5. AIR 1998 SC 171.
6. Sajjan Singh v. State of Punjab, (1964) 4 SCR 630.
7. London North Eastern Rly. v. Berryman, (1964) 1 All ER 255.
346 JURISPRUDENCE AND LEGAL TIIEORY
I
\ '
The Supreme Court applied the rule of strict construction of penal statute
1
in State of Punjab v. Ram Singh. In this case, a heavily drunk constable
gunman was seen roaming about in the market witp service revolver while he
was on duty. When he was sent to the doctor for medical examination, he
abused the medical officer on duty which showed his depravity or delinquency.
due to his drinking habit. The Court held that his conduct constituted gravest
misconduct warranting dismissal from service. The auth0rities were, therefore,
justified in imposing the penalty of dismissal.
Yet another presumption about penal statutes is that mens rea is always
relevant. This presumption may, however, b~ rebutted on sufficient evidence. 2
The rules of interpretation stated above are, however, illustrative and not
exhaustive. There are other rules as well which guide the court in construing
the statutes. · ~nvisage s~al Justice to ensure a meaningful and livable life. Therefore, there
It is significant to note that the politicial, social, moral or legal changes
in a country greatly affect the principles of interpretation. The constructive role
played by the judiciary has opened new vistas for interpretation. The
developing trend towards public interest litigation in modern time bears
testimony to this change. The courts now-a-days tend to interpret law in context
of modern social welfare policies through the proc::ess of judicial review. To
illustrate the point, the Supre:rr.e Court of India has interpreted the word
"compensation" used in Article 31 (1) 3 of the Constitution of India differently
according to changing socio-economic trends in the country. The series of case
law 4 from 1954 to 1980 on this subject clearly indicate that judiciary is alive to
the changing trends and social needs of the people and interprets law to meet
the ends of social justice.
The rules of interpretation are no longer treated as mere compilations for
the guidance ofJudges but they are taken as an instrument of affecting social
change keeping in view the needs of the society. The liberalisation of locus
standi rule in public interest litigation cases and expanding dimensions of
epistolary jurisdiction of higher courts best illustrate the point. The Supreme
Court has held that denial of a "speedy trial" to the undertrial prisoners is
violation of the mandate of right of life and liberty contained in Article 21 of
the Constitution of India. 5 That apart, the Court has, in a number of cases
directed the government to pay monetary compensation to the accused who
suffered unduly long detention in jails. 6
1. AIR 1992 SC 2188.
2. State of Maharashtra v. George, (1965) 1 SCR 123.
3. Repealed by the Constitution (Amendment) Act, 1978.
4. State of West Bengal v. Bela Benarjee, AIR 1954 SC 170; Vajravellu v. Sp/. Deputy Collector, AIR
1956 SC 1017; Union of India v. Meerut Corporation of India, AIR 1966 SC 637; RC Kitper v.
Union of India, AIR 1970 SC 564; Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461;
Waman Rao v. Union of India, AIR 1980 SC 271 and Minerva Mills Ltd v. Union of India, AIR
1980 SC 1789.
5. Hussainara Khatoon v. Union of India, A!R 1979 SC 1360.
6. Sabestien Hongary v. Union of India, AIR 1984 SC 571; Rudul Shah v. State of Bihar, AIR 1983 SC
1083; Bhim Singh v. State of Jammu & Kashmir, AIR 1986 SC 494.
LEGISLATION AS A SOURCE OF LAW 347
!he _Supreme Court of I~dia, thr~ugh Justice P.B. Sawant (ash~ then was)
has. h1ghhg~ted the need for interpreting the provisions of the Constitution of
India, _particularly, Parts III and IV to meet the felt-needs of the time. The
Court in Indra Sawhney v. Union of India, 1 has observed:~
. I'
. · "The Constitution being essentially a political document has to be
· ~nteq?eted to m~et the . •~elt necessities of the .time'. To interpret it
~gnoring _the social, pohhcal, economic and cultural realities, is to
~terpret it not as a vibrant document alive to social situation but as an
immutable cold letter of law unconcerned with realities ... "
. Mr. Jus!i~e K. Ramaswamy in Consumer Education Research Centre V.
Unz?n of In~ta . ob~erved that Preamble and Article 38 of the Constitution
is need _to interp~e! Constitution in its true spirit for securing justice-social,
economic and political as well as equality and opportunity.
In I~dian Medical Association v. V.P. Santiza3 the Supreme Court held
that. service rendered by a medical doctor is a 'service' within the meaning of
Section 2(o) of the Consumer Protection Act and therefore, the person aggrieved
can seek redress through consumer forum.
~e Apex <?ourt applied the rule of beneficial construction with a view to
expai:idmg the drmensions of socio-economic justice and held in Spring Meadows
Hosp~tal v • H. Ahluwalia4 that if the parents have hired the services of a
!
ho~pit~l 0 r the medical treatment of their child, they and the child can
mamtain independent actions against the hospital for deficiency in services.
. Un~ou~te~ly, the Supreme Court of India has played a commendable role
m ensurmg Justice to _co~mon m_a~ and solving the socio-legal problems of the
p~ople thro~gh pubhc _interest litigation in recent years. The Apex Court has
g~ven i:iew ii:iter!'retahon to _the ~xisting Indian laws so as to . expand the
drmension of Justice and make 1t easily accessible to a common man.
000
1. AIR 1993 SC 447 (634).
2. AIR 1995 SC 922.
3. AIR 1996 SC 550.
4. AIR 1998 SC 1801.

\
\\
15
JUDICIAL PRECEDENT
Judicial precedent is another important source of law. It is a
distinguishing feature of the English legal system because most of the common
law is unwritten and owes its origin to judicial precedents. Precedents have a
binding force on judicial tribunals fo.r ·deciding similar cases in future. In
continental countries like Germany, France, Italy, judicial precedent has only
instructive value and it is not authoritative. Its importance is no greater than
that of -a text book of law. On the other hand, in English legal system it has
authoritative importance, It is in fact a legal source of la~ which_ the courts a~e
bound to follow.1 The high quality of English Judges, their working together in
harmony and the power and prestige which they enjoy as members of the Royal
Court have contributed to the development of a single homogenous system of
common law in England where cases decided by the Judges command great
value and authoritative force. As rightly pointed out by J. C. Gray,
· although the Courts do not make laws but they fuel life into the dead words of
statutes.
According to Salmond, the doctrine of precedent has two meanin?s,
namely, (1) in a loose sense precedent includes merely reported case-law which
may be cited and followed by the courts, (2) in its strict sense, precedent means
that case-law which not only has a great binding authority but must also be
followed. Holdsworth supports the doctrine in its loose sense. In recent y~ars,
the value of the doctrine of precedent has become a debata~le issu~. There 1s no
dissatisfaction with the practice of citing cases and attaching weight to them,
the difference of opinion is as to the present practice of treating precedents as
absolutely binding. 2
It is true that in common law countries new laws and law reforms have
increasingly been brought about through Acts of Parliament, usually inspired by
the policies of the Government of the day, but even then the development of
case law still remains a potent source of law. A statement of law_ made by a
Judge in a case can become binding on later Judges and other subordinate Courts
and in this way may becomes the law for everyone to follow. Whethe~ or not a
particular decision, i.e., precedent become binding depends on two main factors
namely-
(i) it must have been pronounced by a Court which is sufficiently senior;
and
(ii) it is only the ratio decidend, i.e., reasoning behind the decision which
is binding.
1. Fetzgerald P.J. (ed.): Salmond on Jurisprudence, (12th ed.) p. 141.
2. Ibid.
( 348)
JUDICIAL PRECEDENT 349
Precedent as a Source of Law
Precedent has a binding force and therefore it _is an important source of
English law. Expressing his views on precedents Blackstone pointed out that it
is an established rule to abide by the former precedents where the same points
come again in litigation. They also keep the scale of justice even and steady and
not liable to be waved away ~ith every new Judge's opinion. Justice Cardozo
also supports the view that adherance to precedent should be the rule and not
an exception; The rule of precedent should, however, be abandoned if it is
inconsistent with the notion of justice or derogatory to social welfare policy. 1
The doctrine of precedent has gained favour with English Courts because it
leads to certainty of law and also predictability of decision is always
preferable to approximation of ideals. Again, it enable~ illogical and
unsatisfactory decisions to be overruled to meet the ends of justice.
According to Jeremy Bentham, precedent is a Judge-made law while
Austin calls it as judiciary's law. Keeton holds precedents as those judicial
pronouncements of the court which carry with them certain authority having a ..
binding force.
Nature of Judicial Precedent
A judicial precedent is purely constitutive in nature and never abrogative.
This in other words means that it can create law but 'cannot ,. abolish it. The
Judges are not at liberty to substitute their own views where there is a settled
principle of law. They can only fill in the gaps in the legal system and remove
imperfections in the existing law.
The process of judicial decision making may be either deductive or
inductive. Deductive method is associated with codified system of law. It
assumes that the legal rule applicable to any particular case is fixed and
certain and the Judge is required to apply this rule as justice according to the
law without any reference to his personal view. This implies that Judge's
decision is deduced directly from general to particular in circumstances of the
case before him.
Inductive method which is a characteristic of English law, on the other
hand, starts with the same primary object of finding the general principle
applicable to the particular case, but it does not conceive the rule as being
applicable directly by simple method of deduction. It rather moves from
particular to general. The method involves reasoning inductively aILd in the
process, the Judge is bound by the decision of the courts higher than his'own
Court.2 ·
Thus it would be seen that deductive method of judicial law making pre-
supposes law as static whereas in actuality judicial decisions may change the
law by over-ruling precedents or by announcing new legal norms. 3 It is for this
1. Cardozo: The Nature of the Judicial Process, pp. 149-151.
2. Paton G.W.: A Text Book of Jurisprudence, (1964) 172.
3. See Golaknath v. State of Punjab, AIR 1967 SC 1643 (Prospective over-ruling); Gian Kaur v.
State of Punjab, AIR 1996 SC 946 (Section 309, IPC suicide is an offence)
350 JURISPRUDENCE AND LEGAL THEORY
reason, it is said that "deductive method m~y explain legal stability but it
cannot account for legal change". 1 . '.
Binding force of Precedents
The weight which judicial precedents carry to the decision of a case,
widely varies depending on the legal system of the country concerned. In
England and United States a reported case may be cited- with ahnost as much
authority as an Act of the Parliament, but in continental countrie_s,2 it does not
carry the same weight and a Court cannot be restraint to take the same view as
taken in the earlier similar case. In India, the decisions of the Supreme Court
have an authoritative and binding force so long as they are not overruled by the
Supreme Court itself.3 __
The Supreme Court in Union of India v. Raghubir Singh, 4 highlighted. the
importance of binding nature of precedent in the development of law in the
following words : · appeal from the colonies;
"Taking note of the hierarchical character of the judicial system in
India, it is of paramount importance that the law declared by this Court
should be certain, clear and consistent. It is common knowledge that most
decisions of the courts are of significance not merely because they constitute
an adjudication on the rights of the parties and resolve the dispute between
them, but also because in doing so they embody a declaration of law
operating as a binding principle in future cases. In this latter aspect lies
their peculiar value in developing the jurisprudence of the law. The
doctrine of binding precedent has the merit of promoting certainty and
consistency in judicial decisions, and enables an organic development of the
law, besides providing assurance to the individual as to the consequences of
transactions forming part of his daily affairs and, therefore, the need for a
clear and consistent enunciation of legal principle in the decisions of a
court."
In Hari Singh v. State of Haryana, 5 the Apex Court reiterated a similar
view and held that in the absence of strict binding rule of precedent, litigants
would take every case to the highest Court, inspite of ruling to the contrary in
the hope that the decision might be ·overruled. In such a situation, the
harmony of judicial system would be destroyed and it will result in judicial
anarchy.
Kind.s of precedents
Broadly speaking, percedent may either be authoritative or persuasive.
1. Protection of Wornen Against Domestic Violence Act, 2005; Welfare of Parents and Senior
Citizen's Act, 2007.
2. The legal systems of ltaly, Prussia, Austria, Scotland, France, Belgium, etc. precedents only
have quasi-authoritative value.
3. This is well illustrated by the cases of Kameswar Singh v. State of Bihar; Golakh Nath v. State
of Pun1r.b; Keswanand Bharti v. State of Kera/a; Minerva Mills case etc. -
4. (1989) 2 sec 754 (766).
5. 1993 SCR (3) 61.
JUDICIAL PRECEDENT 351
An authoritative precedent is one which has a binding force and the
Judge must follow it whether he approves it or not. Authoritative precedents
are the decisions of superior court of justice which are binding on subordinate
courts.
Persuasive precedent, on the other hand, is one which the Judges are under
no obligation to follow but which they may take into consideration. Thus
authoritative precedents are the legal sources of law while persuasive
precedents are merely historical sources.
Persuasive precedents may be of various kinds, namely, : -
1. Foreign judgments;
2. Decision of superior courts to other parts of British Empire;
3. Judgments of the Privy Council when sitting as the final Court of
4. Judicial dicta (obiter dicta) ;
5. Authoritative text books and commentaries.
Position in India
In the Indian context, the decisions of the House of Lords, Privy Council
and Supreme Court of USA or Canada have only persuasive value. The
decisions of the Supreme Court of India are binding on all the courts in India and
they constitute authoritative precedents. Article 141 of the Constitution of
India gives a constitutional status to the doctrine of precedent in respect of law
declared by the Supreme Court of India. Precedents which enunciate rules of
law form the basis of administration of justice in India. 1 The decisions of the
various High Courts are binding on the courts below them within their
respective State limits. In Bengal Immunity Ltd. v. State of Bihar, 2 the
Supreme Court held that it is not bound by its own decision. The Supreme Court
in A.R. Antulay v. R.S. Nayak 3 ignored the binding value of its own
pronouncements.
The Supreme Court, in Somwanti v. State of Punjab 4 clarified that what is
binding is the ratio decidendi, that is, the principles of law applicable to the
legal problems disclosed by the facts of the case before the Court. This implies
that obiter dicta of the Supreme Court is not binding for the lower courts. But
the Bombay High Court in Vasudeo v. State of Maharashtra 5 has held that
even the obiter dicta of the Supreme Court is binding upon the subordinate
courts. 6
l. Tribuvan Das v. Ratilal, Air 1968 SC 372.
2. AIR 1955 SC 661. Again the Supre~e Court overruled its decision in Shankari Prasad's case,
AIR 195i SC 458 by its subsequent decision in Golak Nath's case, AIR 1965 SC 845 which in
itself was overruled by Kesawanand Bharati's case, AIR 1973 SC 1461._
3. AIR 1988 SC 1531.
4. AIR 1963 SC 151.
5. AIR 1976 Born 97 (100).
6. Sarwan Smgh Lamba v. Union of India, AIR 1995 SC 1729.
 352 JURISPRUDENCE AND LEGAL 11-IEORY
. · Prior to the Indian Independence, the docbe of judicial precedent was
first_ recognis~d under Section 212 of the· Government of India Act, 1935. The
~echon _p rovided t~at the la~ declared by the· Federal Court and by the
JUd~ent of the Privy Council shall be binding on all the Courts in British
India. The High Courts in India were bound by the decisions of the Federal
Court and P~vy Council. But the Federal Court and the Privy Council were not
bo~? by their own previous decisions. The Federal Court was not bound by the
decisions of the Privy Council but with regard to other civil matters Privy
Council decisions were binding on the Federal Court of India. · ' that law is not made by them. 1
~fter the Con~titution_ of India came into force, the Supreme Court became
the highest_ Court m the hierarchy of court~ in India. Therefore; the decisions
of the Enghsh Court have merely persuasive value and it is not obligatory for
the Supr~me Court to follow them.1 It is not even bound by the obiter dicta of
t~e ~nghsh Courts. 2 Likewise, the judgments of the Privy Cvuncil are not
bmdmg on the Supreme Court.3 . cases which are not covered by existing law, the judicial decisions create new
It m~st _be stated that the same precedent may be authoritative for one
court while 1t may be merely persuasive for another. Therefore whether a
precedent is authoritative or persuasive, shall depend upon the c~cumstances
~d the rank of the court by which it is being used. For example, a decision of a
High Court shall be authoritative for its subordinate courts whereas it would
be ~nly .persuasive for High Courts of other States. Likewise, the judgments of
foreign courts have only persuasive value for Indian courts.4
Position in England
In England, ~he Ho_u~e of Lords is the highest Court in the hierarchy of
co~ts. Therefore~ its dec1s1ons are absolutely binding on all the inferior courts.
~ut it was held in Boys v. Chaplin 5 that the House of Lords is now not bound by
its own earlier decisions.
Declaratory Theory of Precedents
. The Judges, at least in theory, do not make law they merely deci-are it,
that 1s to say, when a court overrules a decision, it does not propound a new rule
but only declares that the supposed law was never law. Even Blackstone ha~
accept~d- this view. He ?bserved that the function of the Judge is to discover in
the existing law the principles that govern the facts of individual cases. Thus
Judges maintain and explain the existing law, 6 hence they are law-finders and
~ot la~-~akers. Lord Esher in the famous Willis v. Baddel~y'l case observed,
there 1s m fact no such thing as Judge-made law, for the Judges do not make the
law, though they frequently have to apply existing law to circumstances as to
1. Manipur Administration v. Bira Singh, AIR 1965 SC 87.
2. Chaturbhuj Vithaldas v. Moreswar Parashram, AIR 1956 SC 216.
3. Sriniwas v. Narayan, AIR 1954 SC 379.
4. Attorney-General v. Don & Canons of Windsor, 8 HL 369.
5. (1968) 1 All ER 283.
6. Juris dicere et non just dare, Blackstone's Commentaries, Vol. 1, p . 69.
7. (1892) 2 QB 324 (326).
JUDICIAL PRECEDENT 353
which it has not previously been authoritatively laid down that such law is
applicable".
Jeremy ~entham, however, does not subscribe to the above view regarding
the declaratory theory of precedents. H'.e calls this theory as an orthodox view
which is a wilful falsehood having for its object stealing of legislative power
by and for hands which could not openly claim it. Austin calls declaratory
theory as hypocritical and a childish fiction employed by common law Judges
· . .
Blackstone's theory has, however, been supported by the eminent
American Jurist James Carter and he limits juditial decisions to mere
declaration of existing law. According to him, precedents are merely
interpretative of the existing law, they do not create new law. 2 This view of
Carter about precedents has been criticised by some jurists on the ground that in
notions and formulate new principles which were never contemplated earlier.
For example, in Rylands v. Flectcher 3 a new category of absolute liability was
evolved wherein it was laid down that the keeping of a dangerous thing by a
person on his premises was at his own peril for if it escaped as a result of the
negligence and harmed a third party, the liability would still be on the keeper
of that dangerous chattel and the plea of inevitable accident would be no
defence to him.
In America also the doctrine of precedents has created new law for future
in a number of cases. In Brown v. Board of Education, 4 the Supreme Court of
U.S.A. gave a historic decision which started an era of unprecedented legal and
social reforms. The Court held that racial segregation prevailing in most of
Southern States of U.S.A. to be unconsititutional thus overruling its earlier
doctrine that "separate but equal" educational facilities were compatible with
the constitutional mandate of equality.
Likewise, in India the Supreme Court overruled the Golaknath decision 5
in the historic Fundamental Rights case, namely, Keshwanand Bharti v State
of Kerala 6 and laid down a new Basic Structure theory. In this case the Court
held that the Parliament can alter any provision of the Constitution except the
basic structure of the Constitution.
Circumstances which destroy the Binding Force of Judicial Precedents
Once a decision is overruled by any subsequent ruling, it loses all its
binding authority. But there are certain other circumstances which also destroy
l. Austin: Jurisprudence p. 655.
2. Carter : Law its Origin Growth and Functions, p. 185.
3. (1868) LR3 HL 330; see also Donoghue v. Stevenson, (1932) AC 562 and Derry v. Peak, (1889) 14
AC337.
4. (1954) 347 us 483.
5. AIR 1965 SC 845.
6. AIR 1973 SC 1481.
354 JURISPRUDENCE AND LEGAL THEORY
or weaken the binding force of judicial pre~edents either partially or totally.
They are as follows : - · times few Judges _may write or even note a dissent in the case in which they ·
1. Ignorance of Statute.-A precedent is not binding if it be rendered in
ignorance of any statute ·or any other rule having the force of statute. It is also
not binding if the court had the knowledge of the existence of the statute but it
failed · to appreciate its relevance to the matter ~ hand due to negligence or
ignorance.
2. Inconsistency between earlier decision of higher court.-A precedent
loses its binding force completely, if it is inconsistent with the decision of a
higher court. Thus the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. 1
observed that it is bound to follow its own previous decisions as well as those of
courts of co-ordinate jurisdiction. However, the Court is bound to refuse to follow
a decision of its own which, though not expr!i?ssly overruled, cannot, in its
opinion, stand with a decision of the House of Lords or if it finds that there is
inconsistency between its earlier decision.
3. Inconsistency between earlier decision of the court of the same rank.-A
Court is not bound by its own earlier decisions which are ·conflicting with each
other. The conflict may arise due to inadvertence, ignorance or forgetfulness in
not citing earlier decisions before the Court. In such a case the earlier decisions
are not binding on the Court. · 8. Abrogated decisions.-A decision ceases to be binding if statute
4. Precedent sub silentio.-A decision is said to be sub silentio when the
point of law involved in it is not fully argued or not perceived by the court. The
decision in Gerard v. Worth of Paris Ltd. 2 is a good illustration to explain a
precedent sub silentio. In this case an employee who was discharged by the .
defendant company obtained damages for his wrongful dismissal against the
company. He applied for a garnishee order on a bank account of the company
which was in the name of the liquidator. The only point argued was priority of
claimant's debt and the Court of Appeal granted the order. The question
whether a guamishee order could be properly made on an account standing in
the name of liquidator was never argued or considered by the court. Therefore,
when this very point was argued in a subsequent case before the Court of
Appeal, the Court held itself not bound by the previous decision as the point
was sub silentio in the previous case.
5. Decision of equally divided court.-There may be cases where the
Judges of the Appellate Court are equally divided. In such a case practice is to
dismiss the appeal and hold that the decif'ion appealed against is correctly
decided. But this problem does not arise now-a-days because Benches are
always constituted with uneven number of Judges. In India, however, where the
Judges in a Division Bench of a High Court are equally divided, the practice is
to refer the case to a third Judge whose decision shall be treated as final unless
it is set aside by the Supreme Court.
l. (1944) KB 718 (729).
2. (1936) 2 All ER 905 (CA).
JUDICIAL PRECEDENT 355
6. Dissenting judgmertts.-Most judicial decisions are unanimous. But at
disagree with the majority. However, while Judges are free to differ on judicial
matters and interpretation of law in a case in hand but there is always an effort
on the part of the majority to minimise or even eliminate . dissent. The
dissenting judgment do not in any way undermine the authority or authe~ticity
of law because they provide scope to correct errors of law due to bhndly
following the doctrine of precedent. For instance, just take the question whether
and to what extent freedom under the Constitution should be interpreted to
allow 'live-in-relationship' which has cropped up as a crucial social problem
in India in recent decades. The society copes up, manages and outgrows with
such problems but rarely solves it. There is always a scope for dissent when such
questions come up for adjudication before the higher Courts. Judges decide such
issues on the basis of their own life experiences and there is always an scope or
possibility that a dissenting note of a pa~cular judge may become a -ratio in a
case in future due to overruling of the case wherein such dissent was recorded.
7. Erroneous decisions.-The decisions which are founded on misconceived
principles or in conflict with the fundamental principles of law lose their
binding force totally.
inconsistent with it is subsequently enacted. So also it ceases to be binding if it is
reversed, overruled or abrogated. If a decision is wrong or irrational, it may be
abrogated by a subsequent enacbnent or decision of a higher court. 1
9. Affirmation or reversal on a different ground.-When a higher court
either affirms or reverses the judgment of the ·1ower court on a ground different
from that on which the judgment rests, the original judgment is not deprived of
all the authority but the subsequent court -may take a view that a particular
point which the higher court did not touch, is rightly decided.
Ratio Decidendi
It is well established that doctrine of precedent pre-supposes existence of
the hierarchy of courts. The general rule is that a court is bound by the decisions
of all courts higher than itself. Thus in England, a High Court Judge cannot
question a decision of the Court of Appeal, nor can the Court of Appeal refuse to
follow the judgments of the House of Lords.
In India, all High Courts of the States are bound by the decisions of the
Supreme Court and all courts subordinate to a High Court are bound by the High
Court's decision. However, the decision of. one High Court is not binding on
another High Court. It only has a persuasive authorhy.
Having considered the extent to which courts are bound by previous
decisions, it becomes necessary to consider what actually cotlstitutes the
'decision' in a case and what is that which is actually binding on the lower
courts.
1. This is expressed in latin maxim: "cessante ratione legis cessat ipsa lex."
356 JURISPRUDENCE AND LEq;\L THEORY
A decision generally has two aspects, ~amely : -
1. what principle it lays down on the rule of law for which it becomes
an authority. This is generally ~alled the ratio decidendi of the
case.
2. what the case decides between the parties. Such matters become res
jl!,dicata between the parties and cannot. be the subject of further
dispute. 1 . .
The term 'ratio decidendi' literally. means reason of the decision. It is the
general principle which is deduced in a case. In other words, ratio decidendi is
the rule of law upon which the decision is founded. It differs from res judicata
which means decision given in a particular case a:nd which .is conclusive
between the parties to the case. Sir Salmond has illustrated the difference
between the two thus :
"If A sues B for negligence relating to a motor-accident, each will
be bound as against the other by the finding in the case and third
parties not involved in the case shall not be bound nor will either of the
o~ginal parties be bound by a subsequent dispute with a third party. If
B ~ !ater prosecuted f~r c:ireless driving neither he nor the prosecutor
will oe bound by any fmdmg of fact in the original action. But in certain
circumstances the findings in an action may be conclusive even as
against third parties. This is so with actions concerning status, where
the judgment acts in rem, i.e., against the world at large. Thus in case of
a petition for declaration of nullity of a marriage, the court's decision
will be valid not only against the petitioner and respondent but against
all third parties". 2
. ~rofessor Dworkin holds that the doctrine of precedent gives a judicial
dec1s1on two types of force, viz, enactment force (its effect on future cases)
and gravitational force which justifies treating like cases alike. The doctrine
of prece~~nt enables citizens to plan their conduct in the expectation that
past. de~1S1ons were to be honoured in future. Cei:tainty, predictability and
contmmty are not only the objectives of law, but they are important because
people can foresee how Courts will respond to certain type of conduct or
behaviour.
. _According to Rupert & Cross, ratio decidendi is a rule of law expressly or
1mphedly treated by the Judge as a necessary step in reaching his conclusion. 3
In the opinion of Salmond, ratio decidendi roughly denotes the law applied by
and acted upon by the Court or the rule which the court regards as governing the
case.
I. The principle of res Judicata is contained in Section 11 of the Code of Civil Procedure 1908
which p_rovi~e~, "no court sha~l try any suit or issue in which the matter directly or
substantially m issue has been dir~ctly or substantially ira issue in a former suit between the
same parties."
2. Fitzgerald P.J. (ed.) : Salmond on Jurisprudence, (12th ed.) p. 175.
3. Rupert & Cross : Precedent in English Law, p. 86.
JUDICIAL PRECEDENT 357 .
Professor Goodhart has criticised Salmond's views on ratio decidendi and
pointed out that reason for the decision is not necessarily the ratio decidendi
because it may be bad and yet the case may become an authority. He observed
that ratio decidendi is not necessarily the proposition of law stated in a
judgment because the proposition may be broader than necessary or it may be
even narrower. According to him, ratio decidendi is nothing more than the
decision based on the material facts of the case.1 It implies that it is the
deciding Judge who decides what are the material facts and those can be
discovered by a persual of judgment..The critics of Goodhart theory suggest that
it overlooks two points. Firstly, the theory ignores that it is within the
function of the Judges in the subsequent cases to say what they choose to regard
as the material facts of the earlier case. Secondly, two persons agree to a
collection of individual facts and yet form different impressions whether the
two cases resemble each other sufficiently so as to be regarded as a precedent for
subsequent cases.
The House of Lords by the Judicial Practice Statement, 1966 ultimately
held that "the use of precedent is an indispensable foundation upon which to
decide what is the law in its application to indiv_idual cases. It provides at
least some degree of certainty upon which individuals can rely in the conduct of
their affair, as well as a basis for orderly development of legal rules. Their
Lordships further ruled that too rigid adherence to precedent may lead to
injustice in a particular case and may also unduly restrict the proper
development of law. They therefore, modified the existing practice and while
treating former decision of the House as normally binding, depart from a
previous decision when it appears right to do so.~
It must, however, be pointed out that even before the Judicial Practice
Statement of 1966, the House of Lords was not bound by its earlier decision in
certain cases, namely, decisions given in ignorance of some statute are not
binding on it. Again, the decision given in appeals from Scotland do not bind the
House in deciding appeals from England. Such decisions are also not binding on
English courts.
The doctrine of ratio decidendi can be better understood by a concrete
illustration. The English case of Bridges v. Hawkeshworth 3 may be cited for
this purpose. In this case a customer found some money on the floor ~fa shop.
The Court applied the ntle of "finders-keepers" and awarded possession of the
money to him rather than to the shop-keeper. The ratio decidendi of this ca7e
is that finder of goods is the keeper, i.e., has right of possession over 1t.
4
However, in South Staffordshire Water Company v. Sharman, vyhere the
defendant found two gold rings in a mud of pool owned and occupied by t~e
plaintiffs, the court refused to apply the "finders-keepers" r':le expr~ssed m
Bridges' case on the ground that in that case money was found m a public place,
1. Goodhart: The ratio decidendi of the case, Essays in Jurisprudence and Common Law, Vol. l.
2. Lord Denning M.R. in Galle v . Lee & another, (1969) 1 All ER 1062 (1072).
3. (1851) 21 LJ QB 75.
4. (1896) 2 QB 44.
 358
JURISPRUDENCE AND LEGAL THEORY
JUDICIAL PRECEDENT 359
i.e., on the shop floor but in the inst t \· .
not open to public. ·•·'-- . an case, ,~t was fou,nd m a pool which was The distinction between ratio decidendi and obiter dictum can be better
understood from the facts and decision in R v. Franklin. 1 In this case the
The ratio decidendi of Don h S . 1 .
the doctrine of privity of con~!ac~e vd ~e~~n~~n case was that it exploded deceased was -bathing in sea at Brigton sea-beach in July, 1882. The accused
consumer for his negligence in manufa~~rin e th t at man~fac~rer is liable to Franklin stole a big box from a hotel situated at the sea-beach and threw it into
that it is incapable of i t d" t . g. e goods which is of such a nature the. sea. It struck Trenchard (the deceased) who was bathing there and
n erme Ia e mspechon by ihe t ·1 Th consequently caused his death. The accused (Franklin) was produced before the
was therefore held ehtitl d f d re ai er. e plaintiff
inside the gin~er..;beer wh~ch or ~m~ges cladu~ed to her due to decomposed snail court of Justice Field on a charge of manslaughter. The Court sentenced him to
was emg so m opaque bottle. two months' imprisonment. According to Justice Field the ratio decidendi of this
Keeton holds a view that t · d ·d • . . case was:-
forms the basis of de . . . ra zo . ect endt is a principle of law which
I . I . . . . . c1s10n m a particular case The C t ( 1) that if a person while committing a wrong or as a consequence of the
case harder. In Professor HLA Hart's
the second rule or ower c 0 nf . rul
.
P
::zs
eg1s ature by the modality of stare d . . . our can compel the
!o change t~~ law by making the
lys1s, stare dec1s1s doctrine represents
wrong causes death of a ,person, he cannot be held guilty for
manslaughter only because of the reason that a death has been
ernng e or a rule of recognition. caused due to his act.
Obiter Dicta · {2) a person who causes death of another person due to his gross
negligence, shall be guilty of manslaughter.
Pronouncements of law which .
called as obiter dicta a d th , are not part of the mtw decidendi are
Courts. Obiter dicta
which carry no weight. y
rn:bee~ ~:e not authoritative or binding on subordinate
e med as mere casual expressions by the Court
In this case, Justice Field expressed a view by way of obiter dicta that
even if the prosecution succeeds in proving that the alleged tort of negligence
was committed by the accused, he shall not be guilty of manslaughter until jury
finds him guilty for his offence.
In the course of judgment a Jud
are not precisely relevant t ',-h . ge may make various observations which In S.R. Bommai v. Union of India,2 the nine Judges Bench of the Supreme
·1i
1 ustrate his reasonin b fo . e issues before hi· m. For mstance
• he may Court unanimously held that secularism is one of the basic structures of the
by the Cottrt by the w!y yf ret etrence to hypothetical situations. Whatever said Constitution of India. Justice Sawant and Kuldeep Singh observed that social
• o s a ements of law whi h I d
1s unnecessary for the . c ay own a rule but which pluralism is one of the basic structures while Justice Ramaswamy observed that
have the force of persua~~:pa~~~~i:a:~ are calle~ o~iter dicta. These dictas socialism, social justice and fraternity are included in the basic structure of the
courts may seek help from them b t th n are not bmdmg upon the courts. The Constitution. Justice Ahmadi opined that the rights contained in Articles 15, 16
. . u ey are not bound to follow them. and 25 of the Constitution formed a part of its basic structure. These
Obzter dicta literally means s h. .
which does not have any b1· a· omt.het _mg said by the Judge by the way observations of the learned Judges are obiter dicta as they were not directly in
"a cone1usion based on a f tnthmg au . onty · Goodha r t d e fmes o bzter
· dictum as' issue in the instant case. The ratio of the case is that secularism is a part of
the court". ac e existence of which has not been determined by basic structure of the Constitution.

As to th e importance of obit d · - Doctrine of Stare Decisis

quoted. He observed:- er zeta, Lord Stemdale's observation may be Like England, the doctrine of stare decisis has been accepted under the
Indian law. 3 Since the law in India is mostly based on the English law
"Dicta are of different kinds d f - therefore, the system of law reporting is fairly developed in India. The
Sometimes they may be called al;:st o varying de~rees of weight.
upon a point which h t b . casual express10ns of opinion doctrine of stare decisis has essentially developed as a result of progress made _
as no een raised in the d • in law-reporting. To begin with, there was no doctrine of stare decisis as there
present to the Jt1dge's mind. Such diet cas_e, an Is not really
was no reporting of the decisions of the courts in England. The origin of reporting
has been rais~d So air:- r
to the speaker ll'l.ay f . I b d" a, though entitled to respect due
~regarded by Judges before whom point
opinion given ~·fterme z_cd a, _owever, are deliberate expressions of
of decisions in England can be traced back to seventeenth century when the
decisions of Exchequer Courts came to be reported and were given a binding
· cons1 erat10n upon a • t force. In 1833, Chief Justice Park reiterated the need for recognising the binding
argued before the court N d b . . pom c 1ear1y brought and
decisions contrai-y to . h ~- ~ub t, it is open to other Judges to give force of precedents in the historic decision in Mirehouse v. Rennel. 4 Later, with
them than to the formesucl z,'; a ut much greater weight attaches to
r c ass . 1. (1883) 15 Cos 163.
2. (1994) 3 sec 1 (pages 78,118,205).
L (1932) AC 562.
3. Article 141 of the Constitution.
4. C L & Fin 527 (546).
360 JURISPRUDENCE AND LEGAL TIIEORY
. \
the establishment of the High Court of Judicature by the Acts of 1873 and 1875
the . doctrine of stare decisis was firmly .established and now it forms and
indispensable part of the British legal system.
The doctrine of stare decisis literally means "let the decision stand in its
rightful place". When a decision contains a new principle, it is binding on
subordinates courts and has persuasive authority for equivalent courts. This
rule is based on expediency and public policy. Although this doctrine is
generally followed by the courts, but it may not be applicable if the court is
convinced that the earlier wrong is likely to perpetuate resulting into erroneous
decision.
The operation of the doctrine of stare decisis presupposes the existence of
a hierarchy of courts. For example, in India the lower-most courts or the courts
of the first instance are the subordinate courts; above them are High Courts and
the Supreme Court is at the apex. Thus the Supreme Court is the highest
judicial Court in India. 1 . by this Court operates as a precedent and thus needs stability,
The general principles on which the doctrine of stare decisis is based may
be stated as follows ·: -
( 1) Each court is absolutely bound by the decisions of the court above it.
(2) To a certain extent, higher courts are bound by their own decisions.
In India, the Supreme Court is, however, not bound by its own
earlier decision.
(3) The decision of one High Court is not binding on any other High
Court and it has only a persuasive value.
(4) A Single Bench Judge is bound by the decision of a Divison Bench of
the same High Court2 but a Division Bench is not bound to follow a
decision of a Single Bench Gudge) of the same High Court.
( 5} Decision of a larger Bench of the Supreme Court is binding on a
Division Bench of this Court especially where the particular
determination of this Court not only disposes of the case, but also
decides a principle of law. 3
The Supreme Court in Maktul v. Manbhari, 4 held that if the correctness of
a decision has been challenged time and again, the rule of stare decisis need not
be applied.
However, the Supreme Court in Supreme Court Advocates on Record
Association v. Union of India 5 held that the doctrine of stare decisis is not an
1. Prior to the Indian Independence, the Federal Court was the highest court of the land and
appeals from this Court could be taken to the Privy Council which was the highest judicial .
tribunal for British India.
2. Taraponda v. Mritunjoya, AIR 1958 Cal 314.
3. A. K. Behra v . Union of India, (2010) 5 SCALE 472.
4. AIR 1958 SC 918.
5. AIR 1994 SC 268.
JUDICIAL PRECEDENT 361
inflexible rule and it has little relevance in constitutional cases. The Court
observed that there is no doubt ·that the rule of stare decisis brings about
consistency and uniformity but at the same time in exercising its inherent power
the Supreme Court should ask itself whether ·in the interest of public good or
any other valid reason, it is necessary that its earlier decision should be
revised.
In Krishna Swamy v. Union of India 1 Mr. Justice Ramaswamy of the
Supreme Court spelt out the basic philosophy and limits of the doctrine of stare .
decisis and observed:
"The decision of this · Court is · the last word on the
interpretation of the Constitution and the law of the land under
Art. ~41. The Judge is the living oracle working in dry light of
realism pouring life and force into the dry bones of law to
articulate the felt necessities of the time---.The law laid down
continuity and certainty. Adherence to precedents, i.e., stare
decisis is usually a wise policy for rule of law unless there are
compelling and substantial reasons for its reconsideration in
larger public interest".
In Bachan Singh v. State of Punjab 2 the Supreme Court held that, "if the
rule of stare decisis were followed blindly and mechanically, it would dwarf
and stultify the growth of the law and affect its capacity to the changing
needs of society". In Sarwan Singh Lamba v. Union of India 3 the Apex Court
ruled that even obiter dicta of the Supreme Court is expected to be followed by
other Courts.
Stare decisis distinguished from res judicata
The doctrine of stare decisis has to be distinguished from the doctrine of
res judicata, which means that the final judgment of a competent court' may not
be disputed by the parties or their successors or any third parties in any
subsequent legal proceeding. The ~ain differences between these two doctrines
are as follows : -
( l} The doctrine of stare decisis operates as to the ruling of law
involved in a case while res judicata applies to the decision in the
dispute.
(2) Stare decisis binds everyone, including those who come before the
Courts in other cases, but res judicata normally binds only the
parties and their successors.
(3) Stare decisis is brought into operation only with regard to decisions
of the higher courts, namely, the Supreme Court and High Courts in
India, while res judicata applies to all Courts.
1. AIR 1993 SC 1407.
2. AIR 1980 SC 898.
3. AIR 1995 SC 1729
362 JURISPRUDENCE AND LEGAL THEORY
(4) Stare decisis comes into operation \mmediately the decision is
handed down by the higher Court, but res judicata takes effect only
after the lapse of the period. of time-limit for appeal.
Overruling
Overntling refers-to the action of a superior Court in upsetting the ratio
laid down by a lower Court in some other case. Thus, over-ruling necessarily
involves disapproval of the ratio as stated by the lower Court but never affects
the previous decision so that the parties in the overruled case continue to be
bound by the decision under the doctrine of stare decisis, and matter that have
been settled are also not affected. If a case is overruled by statute, it may be
said that its ratio is no longer authoritative. 1
A case may first be overruled by the Superior Court in some other case and
then it may be reversed consequent to an appeal being lodged against the
decision. Conversely, a case may first be reversed and then overruled. 2
Overruling may be express or implied. It is implied ·when ratio of the
later decision of a superior court is inconstent with that of the inferior Court. An
over-ruling which takes effect for the future only is cal1ed prospective over-
ruling.
Prospective Overruling
As stated earlier, the Blackstonian traditional view that "precedents do
not create law but only declare them" caused considerable hardship and
injustice to the affected parties whp relied and acted on previous decisions. The
historic decision in the case of People v. Graves 3 given by the Supreme Court of
America amply highlights the dangers arising from giving retrospective
operation to decisions which overrule previous ones. The facts of the case were
briefly as follows : -
The U.S. Supreme Court in 1928 decided that a State had no right to tax
the income from copyright royalties. This decision was overruled in 1932 on the
ground that it was erroneous. During the three intervening years Elmer Rice, a
noted dramatist of New York had received large sums by way of royalties from
his plays for which he had paid no income-:tax in New York. After the
overruling of the decision in 1932, New York authorities demanded three
years income-tax from Elmer Rice on this royalties. The New York Court
not only held Rice liable for previous three years' tax but also ordered him
to pay interest for the intervening period. This decision of the Court was ·based
on the theory that when a precedent is overthrown, the overruling decision
must be viewed as enunciating the law and the discarded decision must be
treated as nullity. Relying on the theory that courts merely declare pre-
existing law, it logkally follows that an overruling decision operates
retrospectively.
l. Thomson v. Moyse, 1896 AC 969 (989)
2. Dias R. M. S.: Jurisprudence (5th Ed. 1985) Indian Reprint (1994), p. 148.
3. 273 NYS 582 (US) 1934.
JUDICIAL PRECEDENf 363
In order to avoid such hardships resulting from overruling, the Supreme
Court of United States has expressly given constitutional recognition to the
doctrine of prospective over-ruling which denies -restrospective effect to the
overruled decisions.
The doctrine of prospective overruling was formulated by Cardozo, J., in
Sunbust Case . 1 According to this· doctrine, the case before the court is
determined under the old principle but caution is given that future cases will be
decided according to the mle newly created. In other words, it would not
operate retrospectively. He opined that Judges may, no doubt, discard the law
which no longer serves the public purpose and adopt a new law, but they should
remember that the past is often a reflection of the present and they must know
and understand it, the reason being that "the depth are the foundation of the
height."
The doctrine of prospective overruling has also been followed in England.
To quote an illustration; the House ~f Lords overruled its decision in Candler v.
Crane Christmas & Co., 2 in which it was laid down that there is no liability
for negligent misstatement published by an auditor in- the balance-sheet of a
company which he had certified and published as "true and correct". This
decision has been overruled by House of Lords in Hedley Byrne v. Heller 3
which operates prospectively thus laying down a new law for future that there
would be liability for negligent misstatement made by the persons who are
entrusted with financial dealings such as auditors.
The Supreme Court of India adopted the doctrine of prospective overruling
in Golak Nath v. State of Punjab, 4 wherein it overruled its.earlier decisions in
Sankari Prasad v. Union of India 5 and Sajjan Singh v. State of Rajasthan6 by
which the First and Seventeenth Constitution Amendments were held valid.
The Court in Golak Nath case held that hereafter fundamental rights could not
be altered resorting to provisions of Article 368 of the Constitution. It also held
that the First, Fourth and Seventeenth Amendments violative of right to
property as given in Articles 31-A and 31-B and therefore, invalid. But their
Lordships did not give retrospective effect to this decision. In other words, the
First, Fourth and Seventeenth Amendments were held valid upto the decision
in Golak Nath's case. The Supreme Court restricted the effect of Golak Nath
decision to future cases only by employing the doctrine of prospective over-
ruling.
Thus it would be seen that since Golak Nath 's case, the Judges in India
apply the existing law to past transactions and the newly created formulation
to future instances through the device of prospective overruling. As observed by
Hegde, J., in Keshavananda Bharti v. State of Kerala 7 :
1. Great Northern Rly. v. Sunburst Oil, 187 US 358 (1932).
2. (1951) 1 All ER 426.
3. (1963) 2 All ER 575.
4. AIR 1967 SC 1643.
5. AIR 1951 SC 458.
6. AIR 1965 SC 845.
7. AIR 1973 SC 1461 (1618).
364 JURISPRUDENCE AND LEGAL THEORY
"Bearing in mind the disastrous effect tha\ decision would have
had on many important laws that had been enacted by the Union and
the State between the years 1951 to 1967, this Court by relying on the
doctrine of prospective overruling and the doctrine of acquiescence did
not _invalidate those laws".
. Thus the doctrine of prospective over-ruling supplies the gap in legal
theory and offers the doctrinal foundations for an extended view of judicial
decision with built in discretion in the Court to indicate the time dimension and
the type of cases for which the holding of a particular case shall have
operative effect. Mathew, J., in Narayanan Nair v. State of Keralai 1
explained the rationale ~ehind the doctrine -of prospective~ overruling by
observing that it is not meant to supplant the Blackstonian doctrine but is a
necessary device in a system of law to protect the interest of the litigant public
when judicial overruling of a precedent entails a change in the law.
The doctrine of prospective overruling was further extended to laws
which were found unconstitutional as observed by the Supreme Court in the case
of Kailash Chand Sharma v. State of Rajasthan. 2 The Court, in this case,
observed:
"When the court lays down correct law in the process of which the
prevelant understanding of law undergoes a change, the Court, on
considerations of justice and fair deal, restricts the operation of the new
found law to the future so that its impact does not fall on the past
transactions. The doctrine recognises the discretion of the Court to
prescribe the limits of retroactivity of the law declared by it. It is a
great harmonizing principle that equipping of Court with the power to
mould the relief to meet the ends of justice."
Advantages and Disadvantages of Precedent
With the constant increase in the bulk of reported cases, the future of the
doctrine of precedent is be~oming a matter of utter conjecture. According to
-- Goodhart, the position in America is still worse because of tremendous rise in
the volume of reported cases annually. Many of the relevant authorities are
overlooked due to multiplication of case-law with the result the doctrine of
stare decisis is gradually losing its importance, the doctrine to operate
effectively requires that the Bench and the Bar should keep themselves well
informed about the latest case-law and up-date their knowledge of cases
through regular study of decided cases.
Undoubtedly, judicial precedent is still a potential source of law despite
its demrits. The merits and demerits of precedent as a source of law may be
briefly summarised as follows :
Merits
1. Case-law being an outcome of continuous judicial process, it is more in
keeping with the needs of the society. Precedents enable the Judges to re-shape
1. AIR 1971 Ker 98.
2. c2002) 6 sec s62.
JUDICIAL PRECEDENT 365
law according to the social needs and at the same time binding authority of the
· precedent acts as an effective check on the arbitrary discretion of the Judges.
That apart, precedents being based on vast experience and maturity of the
Judges, provide useful guidance for the deciding-judge in disposing of the cases.
2. Precedent being the result of concrete problems which actually arose in
the case, gives rise to practical and perfect law whereas the law enacted by
Legislature is mostly based on assumptions and imagination and therefore, it is
an imperfect and abstract law.
3. The law contained •i n case-law is certain and easy to U!l-derstand. Once a
case is decided, people know it with certainty as to what would be ruling in
similar cases which arise in future. Therefore, precedent helps people to know
the intricate principles of law to a considerable extent.
4. Precedents provide useful guidelines for the Judges in deciding cases
before them.
5. Citing of precedent and case-law helps the members of the Bar to
substantiate their argument without waste of unnecessary time and energy.
Much of the time of the Judges and advocates is saved in searching the relevant
law from law books.
6. Precedents provide flexibility to law to adapt itself to new situations
and social conditions The case-law relating to right to property in India from
Sankari Prasad 1 to Minerva Mills 2 decision and changes in judicial trend in this
regard sufficiently illustrates this point.
Demerits
Despite the aforesaid advantages of judicial precedents, it has certain
_. disadvantages which also deserve a mention. They are :-
i. The judicial precedents are published in law-reports which are in such
a large number that it becomes practically difficult to find out a particular case
from such a voluminous legal literature. This is why it has been said that case-
law is a gold in the mine while statute law is a coin ready for immediate use.
At times, different courts express conflicting opinions on the same point which
renders the validity of precedent doubtful and uncertain and there is always a
possibility of erroneous judgment in such a case. This problem has, however,
been considerably eliminated by availability of reported cases online.
2. Bentham did not recognise precedent as law at all because it lacks
binding fprce of the State. Austin, however, did not subscribe to this view
because in his opinion Judges are the agents of the sovereign and therefore, the
law prono~ced by them is as good a law as the law promulgated by the State.
3. A4:ording to Federick Pollock, the law based on case-law is incomplete
because trye Judge takes into consideration only those facts which are involved
1. AIR 1951 SC 458.
2. AIR 1980 SC 1789.
366 JURISPRUDENCE AND LEGAL T:HEORY
\
\
in the case before him. Thus the law so evolved is never complete and
compre~ensive.
Perhaps it is for this reason that the Supreme Court in the case of
Sayrabano alias Sultania Begum v. State of Maharashtra 1 has ruled that
criminal cases should be decided on facts and evidence rather than on case law
and precedents. In the instant case, the Supreme Court dismissed the appeal
filed by the appellant against her conviction under Section 302, l.P.C. on the
charge of murdering her daughter...in-law by burning. Though the deceased in
· her first dying declaration had absolved the mother-in-law and others
recorded by the Magistrate but alleged that she was burnt by her mother-in-
law, in her second dying declaration recorded by the same Magistrate. The
Court held that there was ample evidence to show that prior to the incident in
question~ the appellant used to beat the deceased and ill-treat her. In the light
of the said fact both the courts below were right on relying upon the second
dying declaration of the deceased.
4. Another objection which is quite often raised against judicial precedents
is that it overlooks the fundamental rule of natural justice that law must be
known before it is actually enforced. Needless to say that case law is always ex
post facto . It is only after the parties have gone to a court and the court decides
the matter, that principle of law is evolved.
5. At times, erroneous decisions of superior courts create practical problems
for the subordinate Judges as they are bound to follow these decisions, however,
wrong or defective. This adversely affects the growth and development of law
in the right direction.
6. It is generally alleged that precedents are an outcome of hasty decisions
of the courts. But this criticism is hardly tenable because the precedents are
usually a result of a good deal of careful deliberation by expert and experienced
Judges who are fully conscious of their sacred duty to impart fair justice.
7. One of the greatest set-back of precedent is that the development of law
through case-law more or less depznds on chance. If there has been no litigation
on an important legal issue, the court shall never have opportunity to create
precedent on that point and no case-law would be available on that issue.
8. Bentham holds that judicial precedent is arbitrary in character. ·Unlike
legislature, the Judges are not responsible to anyone hence they are likely to be
arbitrary in using their discretion. But this contention is not tenable because
although the judges are not responsible to the electorates like legislature, they
are certainly guided by public opinion and professional opinion of the Bar. That
apart, the fear of strictures being passed against them, also keeps them within
bounds.
9. Last but not the least, one practical difficulty in case of judicial
precedents is that what should be test for determining the validity of law
made by case law? Should it depend on the number of decisions in which the
precedent in question has been followed or should it depend on the rer_u~~tion of
l. Criminal Appeal 141 of 2006 decided by the Supreme Court on Fcbmary 8, 2007.
JUDICIAL PRECEDENT 367
Judge who decided th: J:'recedent? There being uncertainty on this point, the
reasonableness and vahd1ty of law made by judicial precedents always remains
a debatable issue. ·
11:1 t?e_u!timate analysis it must be said that despite the aforesaid
dem~nts, 1ud1cral precedent has been acc~pted as one of the important sources. of
law m ~ost legal ~ysten:is, particularly in U.K., U.S.A., Australia, India and
Afro-Asian countries. Dias and Hughes while accepting the importance of
precedents as a source of law, have warned that it should not be stretched too
1
far. _Dr. Allen has observed that though the importance of precedent is
recedmg beca~e of unp~ecedented growth of law reports even the Judges and
lawyers remam an effective weapon of shaping and developing law according
to the needs of the changing society.
. ~st~ the merits of the doctrine of stare decisis or the binding effect of the
de~is1on, it must be stated that it gives certainty and uniformity to law and
brmgs about i_t~ scientific de~e~opment. The rigidity of this doctrine may,
however, b~ mitigated by proVIdmg that in case any decision which appears to
be wrong, it can be set aside by the Act oj. the Parliament which has power to
abrogate t!le decision.2
. . ~t must also be stated that the importance of precedent varies with
~di~1dual Judges. Although the Courts normally recognise precedent as
~mdmg, the Ju~ges m3y occasiona~ly_ dep~rt from precedent when it "appears
right _to do so · But they may d1stmguish between various precedents in
ev~lvmg the ,~ew law. Moreover, time and conditions change with changing
society, and, every age should be the mistress of its own law" and era should
not h~ hampered by outdated law. Commenting on this Justice Holmes in his
forthright style observed, "it is revolting to have no better reason for rule of a
~aw than that it was so laid down in the time of Henry IV. It is still revolting
if the _grounds upon which it. was laid down have vanished long back and the
rule simply persists from blind imitation of the past". ·
. The doctrine of precedent is a unique feature of the common law system
wh~ch trea!s. the Judge as the creator, interpreter and modifier of laws. Since
so_c1al conditioi:1s keep on changing with changes in society, law must keep pace
with the changmg norms.
As Lor~ Denning rightly stat~d, precedent in the common law system
serves as an mstru_mei:it of evolution according to the changing needs of society
~nd demand~ of Justice. The English Judges through some of their historic
3
Judgments laid down new principles of law to meet the new social problems.4
1. Dias & fi:ughes: Jurisprudence, (1957) p. 60.
2. The Parhament enacted the Muslim Wo.men's (Protection of Rights on Divorce) Act, 1986 in
order to undo the effect of the Shahbano s decision of the Supreme Court.
3 - For example, Rylands v .. Fletcher, (1868) LR 3 HL 330 (strict liability); Hadley Byrne v. Heller,
(~9~) AC 465 (protection of consumer); Donoghue v. Stevenson (1932) AC 609 ( od t
hab1hty) etc. pr uc
4. This is we~l illustrated by t_he chan~es in judicial attitude towards citizen's right to property
from Shan/um Prasad v. Unwn of India, AIR 1951 SC 458; Sajjan Singh v. State of Rajasthan AIR
196:5 SC 845; Golaknath v. ?tate of Punjab, AIR 1967 SC 1643; Kesavananda Bharti v. Un:on of
lnd,a, AIR 1973 SC 1461; Mmerva Mills v. Union of India, 1980 SC 1789, etc.
368 JURISPRUDENCE AND LEGAL THEORY
I
\
Judicial Creativity '. . .
Before concluding the chapter on precedent, a brief discussion on ~ud~c~al
·vity is deemed necessary. Professor W. Geldart has stated that Judicial
creat i - ,. "bil" ty f th
precedent no doubt, provides advantages of certainty, possi i o grow ,
eat wealth of detailed rules1 and a practical character of th_ese rules, but at
~e same time it being restrictive and rigid, its binding force is a fetter on the
discretion of the Judge. · ·
Commenting on Judicial legislature,· i.e., the Judge-made law, Bentham
illustrates it by a single example. He states, "it is the Judges that make !he
common law, just as a man makes laws for his dog. When your dog _does ~y~lung
you want to break him of you wait till he does it and then beat him. This is the
way you make laws.for your dog, and this is the way Judges make laws for you
and me". · contributed very largely to the growth of legal systems in most parts of the
Lord Denning speaking about the ref~rms of equity obse~ ed "the Ju~ges do
1
everyday make law, though it is almost hearsay to say so . Lord Reid _also
expressed a similar view and held," we must accept the fact that for b~tter or
worse Judges do· make law". Howeyer, adopting a contr~ry ~p~r<:1ach1 Simonds
supported the traditional view with reference to English J~diciary an~ held
that Judges should be passive, the function of the Judges is formulat~on of
principles whereas policy is the prerogative of the Parliament. Lor~ Dip~ock
also ruled in a easel that Parliament makes the law and the Judiciary
interprets them. He was therefore, opposed to activist law making by Judges.
One forceful argumer..t ·against judicial creativity and law ma~ing by
Judges may be that Judges are not representatives of the people hke the
Legislators and therefore, they have no democratic ma1:date to _make laws_ or
set aside the clear words of a statute. They should only mdulge m law-makmg
when Parliament is unwilling or unable to legislate or there is no law on a
particular issue. 2
The orthodox Blackstonian view is that the judges do not make law, but
only declare what has already been law. Th~ do~trine of _separation of pow~rs
also demands dissociation of judicial and legislative functions, the reason bem_g
that nature of judicial function is such that Judges have to pronounce th_eir
judgment on the basis of legality ~f- cond~c! of ?arties. Where ~ creative
3
element enters into a particular judicial decision~ 1t b~comes ~n evidence for
future purposes as to what the law is, and this evidential function overlays the
4 It has been the solace of my life, it will be the solace of my death" .3
creative factor that operated in bringing it into existence.
1. Duport v. Steel, (1980) HL.
2. Shahbanos' Case, AIR 1985 SC 945.
3. Cassell & Co Ltd. v. Broome (1972) AC 1027 (1107) per Viscount Dilhome
4. Dias R. M. w.: Jurisprudence (5th Ed. 1985) First Indian Print, 1994, p. 152.
. .
16
OTHER SOURCES OF LAW
Besides custom1 legislation and precedent as sources of law, there are some
ot~er sources also. Among these religion1 literary works, treatises and opinions
of experts have been recognised as indirect sources of law. The writings of
eminent jurists constitute 'literary sources' of law. The principles of equity may
also be treated as an indirect source of law.
1. Religion
In ancient time, religion exerted great influence on primitive societies. It
world. The ancient Roman and Greek laws were largely based on religion. In
England, during the middle ages, law was mostly contained in religious
testaments because of the dominance of Church over the State. The Hindu and
Mohammadan law in India owe their origin to ancient holy treatises. They are
divinely inspired laws. The tenets of Dharrna are to be found in Vedas-the
sacred treatises consisting of four parts, namely, Rig, Sarna, Yajur and Atharva,
all written in the form of hymns (slokas) in Sanskrit.
According to Hindu scriptures, Vedas are claimed to be of divine origin,
their source being Brahma, the creator of the Universe. The principles and code
of conduct professed and propagated by Vedas came to be incorporated in Hindu
law at the later stage of development of Hindu society. 1
In India, Freedom of Religion Act was the first enacted law on religion
which made its appearance in India in 1850. Thus the modern legislative
enactments of Hindu law are of exotic origin. Right from the dawn of
civilization till almost the middle of the 19th century, laws of Hindus derived
their strength from customary law contained in Shastras and ancient scriptures.
As stated earlier, Hindu system of laws is a code of duties. It has divine origin
hence accepted by all beings as the words of God. It is for this reason that Sruti,
Srnriti, Vedas, Upanishads are considered as sources of Hindu law. 2
Referring to Vedic studies and their relevance to human life, the great
German philosopher Professor F. Max Muller observed, "in the whole world
there can be no study so beneficial and so elevating as that of the Upanishads.
000 1. Sanskrit was regarded as Dtva-Bhasha. i.e., language of the Gods.
2. Sruti is believed to contain words of deity. It signifies what was heard from Great Sages. The
Sruti contains very little of lawyers law. It contains hymnc; and deals with religious rites, true
knowledge and liberation. It comprises the four Vedas, the six Vedantas and fi,e Upanishads .
Smritis are principal sources of lawyers law, e.g., code of Manu and Yajnavalkya. Vedas have
two branches, namely, Karma Kanda and Jnana Kanda; The six Vedantas are (1) Vyakarna
(Grammar), {2) Jyotisha (astronomy); (3) Sikshya (phonetics), (4) Nirukta (exposition); (5)
Kalpa (Ceremonial directory), and (6) Chhandas (metres).
3. Prof. Max Muller's Lectures on Vedanta Philosophy delivered at the Royal Institution in
March, 1894.
( 369)
370 JURISPRUDENCE AND LEGAL TIIEORY
After the Vedas and Smritis, came the dif~rent Puranas which belong to
a later period and were created by different agencies which were not
contemporaries. In course of time dharma retained its divine character while
law lost its hold because it is man-made and seeks to reconcile conflicting
interests of individuals in the society.
In the Indian context, dharma as a source of law reached its climax during
the Gupta period which is rightly called as "The golden age" of Hindu period
in Indian history. The Arthashastra compiled by Kautilya is a masterly
treatise on ancient Indian polity and "a veritable reservoir of rules relating to
the duties of a king, his civil administration and administration of justice,
laws, courts, legal procedure, taxation, rights of women, marriage, divorce and
numerous other matters". It considered welfare of the subjects as the foremost
duty of the King.
Like Dharmashastra, the Arthashastra of Kautilya recognised King as
the fountain of justice. It mentions two kinds of courts like the present one,
dealing with administration of civil justice and the administration of criminal
justice. It lays greater stress on penology (dandaniti) and the art of Governn:ient.
Referring to the origin and sources of Mohammedan law, Sir Amir Ali
observed, "the four principal schools of law among Sunnis named after their
founders, originated with certain great jurists, to whom has been assigned the
distinguished position of Mujahid Imams, namely, expounders of law par
excellence. By virtue of their learning and eminence, they were entitled not to
be bound by the interpretation of the law by any precedent, but to interpret it
according to their own judgment and ana,logy".
In other parts of the world also law has emanated from religious texts and
precepts. Sir Henry Maine pointed out that origin of law in Greece was
Themistes or the divine Goddess of justice which inspired priest-judges to give
judgments. The English law has also been largely drawn from religious precepts
and convinctions of religious scriptures.
2. Digests, Literary Works and Treatises as Source of Law
The Justinian Code is regarded as one of the best treatises on ancient
Roman law. The Roman King Augustus had recognised opinions1 of certain legal
experts as authoritative law. They had great influence on the contemporary
law. Most of the Roman law during second and third century was based on
commentaries and treatises of Roman jurists. In 426 AD the works of the five
eminent jurists 2 were declared to have binding authority. The Digest of
Justinian is recognised as one of the important sources of Roman law even today.
In India, during the Moghul period Emperor Aurangzeb deputed a learned
Hindu Pandit of Bengal named Raghunandan to prepare a digest of existing
Hindu law. The Code prepared by him was called Fatwa-i-Alamgiri which
contained twenty seven parts comprising the entire Hindu law.
1. The opinion of professionals was called ]us repondendi under the Roman law.
2. They were Gaius, Papinian, Paul, Ulpian and Modestinus.
OTHER SOURCES OF LAW 371
The British. rulers also realised the need for a comprehensive. code of
native laws .for the guidance of English judges. Warren Hastings, in 1773
summoned a batch of eleven reputed Pandits from Bengal and directed them to
compile a code of Gentoo1 laws. The Code so prepared was later translated into
English from its persian version and came to be known as Halhed's Code of
Gentoo laws, which was an authoritative. treatise on personal laws of Hindus.
A few years later, Sir William James, a great linguist, took upon the task of
preparation of a code of Hindu law under the patronage of Lord Comawallis
and published his 'Ordinances of Manu' in 1794.
Si1" William Jones also ~ook µp the work of projecting another Digest of
Hindu law 1;,ut unfortunately he died and the work was completed by Pandit
Jagannath which was subsequently translated into English by Colebrook in
1797.
. . In 1810, Colebrook translated Mitakshara and Dyabhaga laws of
inheritance and prepared the 'Treatise on the Hindu Law of Inheritance'. It
contained notes and illustrations which proved useful in the administration of
Hindu law of succession and inheritance by the courts.2
Among other treatises on Hindu law, Sir Thomas Strange's 'Considertion
on Hindu Law' (1825) : 'Hindu Law on Adoptions' (1818); Sir W.H. Mac
Naughten's 'Principles and Precedents of Hindu Law, (1829), J. D. · Maine's
classic work entitled 'Hindu Law and Usage' (1878) are an authority on Hindu
law even today.
Though the writings of jurists and opinions of legal experts do not
command as much respect in England as in U.S.A., even then the works and
commentaries of Bracton, Littleton, Coke, Blackstone, Sir Henry Maine are
regarded as classics in view of their substantial contribution to the
development of English legal system. As G.W. Paton rightly observed, "Bracton
laid the foundations, borrowing what was necessary to create a system with a
reasonable flexibility and sufficient coherence to withstand the later assaults
of Roman law, Littleton gave a scientific account of the theory that lay behind
the decisions on real property and his glory is that he proved that English law
could form a legal system independent of Roman law. Coke, well-versed in
ancient learning, provided a bridge between medieval and modem law, and
finally Blackstone with a· genius for comprehensiveness reduced to an ordered
system and ornamented with a literally style the diverse sources of English
law". 3 .
Modern English Jurisprudence has been greatly enriched by the
contribution of great jurists like Bentham, Salmond, Glanvile Williams,
Pollock, Winfield, Anson, Derrett, Dicey, H.W. Wade, Griffith etc. In U.S.A.
the works of Roscoe Pound, Justice Holmes, HLA Hart are well recognised.
1. Accordin~ to Halhed, the word "_Gentoo" has Portugese origin which the Europeans adopted
to compnse the four Vamas of Hindus. The word "Gentoo" meant a native of India.
2. Paranjape N.V. Dr. : Indian Legal & Constitutional History, (6th ed. 2004, pp. 168).
3. Paton G.W.: Jurisprudence, (4th ed). p. 264.
 372 JURISPRUDENCE AND LEGAL TIIEORY
I-
I
Jeremy Bentham's 'Principles of Legislfltion' ~xercised. great influence
· _upon the development of law and legal r~forms ~ the ~~d-19th c~mtu~y,
so much so that the period is known ai the Benthamite Era m the legislative
history of England. The contribution of Anson to the ~a~ of contract i~ ~o
less important. The writings of Pollock, Salmond an~ ":7infield are autho~ties
on Law of Torts. The classic texts · of these JUnsts have been cited
and acknowledged in numerous decisions even during the life-time of
these great authors. The importance of Dr. Winfield's contribution to Law
of Torts has been acknowledged by Justice Denning who observed, "the place
which was first occupied by Pollock, and to which Salmond succeeded, is
~ow filled by Winfield". 1 In the field of Law of Contract, the place of Anson
has now been taken by Cheshire and Fifoot. The essays authored by
Professor Goodhart have had a decisive influence on many land-mark English
decisions.
· Like England, the writings of jurists and opinions of juris consults have
been given due importance in the Indian legal system. The works of eminent
constitutional experts like H.M. Seervai, M.C. Sethalvad, Palkiwalla, D.D.
Basu, Dr. V.N. Shukla and others are often cited in important cases involving
constitutional law. Likewise, the contribution of former Chief Justices
Gajendragadkar, Hidayattulah, V.Y. Chandrachud, P.N. Bhagwati to Indian
jurisprudence is no less significant. Mr. Justice V.R. Krishna lyer has earned .a
unique place in development of law and legal institutions through his prolific
writings which have a literary flavour. Justice Bhagwati who championed the
cause of social justice through public interest litigation and Lok Adalats_ has
provided new direction to the Indian jurisprudential thinking. It has provided
new dimensions to the law in action.
In the area of criminal law, the commentaries_ on Indian Penal Code by Sir
Harl Singh Gaur, Ratanlal, Amir Ali etc. have been accepted as authoritative
texts for years. The Commentary on Dharmshastra by Dr. P.V. Kane is a classic
authoritative work on Hindu jurisprudence. Similarly, the writing of Taiyabji,
D.F. Mulla, A.A. Faizi etc. are recognised as authoritative works on
Mohammedan law.2 The names of Dr. Nagendra Singh and late Shri Radha
Vinod Pal are well known as international jurists. Among the academic lawyers
and jurists Professor Upendra Baxi, former Vice Chancellor of Delhi University
occupies a prominent place who has given new direction to the Indian
jurisprudence through his legal writings. The books and research papers
authored by him would undoubtedly be a source of inspiration for young legal
writers to project law as an effective instrument of social change. He has
championed the cause of poor, down-trodden socio-economically neglected
masses through his classic works. 3
1. Justice Denning in his Book, Review on the Third Edition of Winfield's Law of Torts. _
2. The names of jurists and their writings mentioned here are only illu~tra!ive and not
exhaustive. Space does not permit to mention the names of all the legal lummanes.
3. See-The Crisis of Indian Legal System (Vikas, 1982), Law & Poverty, _N.M. Tripathi (1988);
Supreme Court Judicial Restraint & Judicial Activism (1985), etc. wntten by Dr. Upendra
Baxi.
OTHER SOURCES OF LAW 373
The contribution of professional opinion formulated by Judges, juris consults
and writers on legal subjects to the development of law is further evinced by the ·.
"American Restatement of Law". Paton calls it an excellent modem example of
co-operation between the members of the Bench, the Bar and the academic
lawyers. ·
It must be stated that in modem welfare States, it has become all the
more necessary that the law should be broad-based to achieve the ends of
socio-economic justice and there is necessity -for intensive scientific study of
the different branches of law in their historical and analytical .
perspective.
3. Social Values and Professional Opinions of Eminent Jurists,"Judges
etc.
Law derives much of its force and validity for the social values of a given
society. The public opinion also finds reflection in the laws and judicial
decisions of the courts. The former Chief Justice of the U.S. Supreme Court, Mr.
Justice Dughlus Holmes observed that Judges being a part of the society, cannot
remain uninfluenced by the social and legal changes taking place around them.
Therefore, it is quite natural that those changes are clearly reflected in their ·
judgments. This is evident from some of the landmark decisions1 of the Supreme
Court of India pronounced in recent decades.
The American Restatement of Law of Torts is a unique example of
development of tort-law through concerted efforts of the Bench, Bar and
academic lawyers.
a
Paton has also expressed similar view and observed that main function
of law is to reconcile the conflicting interests of individuals in the society. The
changes introduced in the law relating to property in India through frequent
constitutional amendments 2 clearly indicate that law has to adapt itself to the
changing needs of society so as to be an effective instrument of social justice. In
substance, the purpose of law is to reconcile individual interests with social
values for the ultimate good of the society.
1. In National Textile Workers Union v. P. R. Ramkrishnan, AIR 1983 SC 75 (81) Justice P.N.
Bhagwati ruled that a company is no longer a mere property of shareholders but it is a social .
institution. In S.P. Gupta v. Union of India, AIR 1982 SC 149 'locus-standi 'rule was liberalised
which paved way for public interest litigation (PIL) movement in India. In Menaka Gandhi's
case (AIR 1978 SC 597) Justice Bhagwati held that right to life and liberty under Article 21
includes right to a fair trial. In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
(right to life includes right to livelihood also). See also Indian Council for Eco:..Legal Action v.
Union of India, AIR 1996 1476 (environmental protection}; Indian Medical Association v. V.P.
Shantha, AIR 1996 SC 550 and Consumer Education Research Centre v. Union of India, AIR 1995
SC 922 (consumer protection); Vishakha v. State of Rajasthan, AIR 1997 SC 3011 (sexual
harassment of working women} etc. Rourkela Shramik Sangh v. Steel Authority of India Ltd.,
AIR 2003 SC 1060 (Regularisation of contract labour). · ·
2. The First, Fourth, Seventeenth, Thirty-fifth, Thirty-ninth, Forty-second, Forty-fourth and
Sixty-Second Amendments of the Constitution of India relate to changes in right to
property. The relevant cases are Shankari Prasad v. Union of India, AIR 1951 SC 458; Sajjan
Singh v. State of Rajasthan, AIR 1965 SC 845; Golaknath v. State, All'l. ·1967 SC 1643;
Keshavanand Bharti v. Union of India, AIR 1973 SC 146; Mineroa Mills v. Union of India, AIR
1980 SC 1789 etc.
 374 JURISPRUDENCE AND LEGAL THEO;RY
. \
The juristic. writings and profession)d opinions have played an
important role in evolution of English common law. ·The works of Dicey and
Cheshire are classics of their time so far development of private international
law is concerned. As stated earlier, Bentham ' laid the foundation of law
. and legal reforms on which the entire modem : British legal system is
structured.
4. Equity as Indirect Source of Law . to evolution of equity' in England under the authority of Chancellor of
The term 'equity' is drawn from the Latin word acquitas which means 'to
equalise'. Equity has always been used to remove the defects of the common law
in England so that justice could be adminis~ered according to principles of reason
and fair-play. Dias suggests that equity aims at three objectives, namely, (1)
the interpretation of law should be based on sound logical reasons ; (2) there
should be generality in the application.of law; and (3) the deficiencies of law
should be removed through equitable principles of justice and good conscience.
Until the medieval period when most laws were uncodified and statute law
was restricted only to certain specified matters, the deficiencies and lacuna of
th~ law were remedied by resort to principles of equity. This was more peculiar
with common law of England which was mostly unwritten and based on ancient
customs and traditions. Thus the principles of equity helped common law to
attain perfection. I
Equity Defin~d
'f!1e ~ot~d Am~rican jurist Story has defined equity as "that portion of
remedial_ JU_stice_ which is exclusively administered by the Court of Equity as
contra-d1shngmshed from the portion of the remedial justice which is
exclusively administered by the Court of common law".
According to Sir Henry Maine, equity is a set of rules which were in
existence side by side with the original law and were based on well established
principles of morality, natural justice, honesty and uprightness.2
Dr. Allen holds that many legal systems confer discretionary power on
Ju~?es so th~t the rigidity and deficiencies of the prevailing law could be
mitigated. This arrangement may be termed as equity. · of the Church- Easter, Pentecost and Christmas-when the King wore his
Origin and Development of Equity
The origin of equity may be trac~d back to ancient Roman law where
Prae!o~s~ were ~~thorised to make use of the principles of equity to mitigate
the ng1d1ty of civil law. Like England, separate courts were established under
the Roman legal system to administer equity law.
. The origin of equity and its gradual adoption as a source of law in English
is to be traced back to 13th century. It was felt that with the change in time,
1. Dias and Hughes : Jurisprudence, (1957) p. 151.
2. Maine Henry Sir : Ancient Law, p. 34.
3. The magistr':'te administering Roman law in law courts was called Praetor. He occupied
same place m Roman legal system as that of the Chancellor in the Chancery Court of
England.
01HER SOURCES OF LAW
the prevailing common law became too narrow, to keep in harmony with the
advancing ·civilization, a machinery was, therefore, needed for ·their gradual
· enlargement and adaptation to new views of society, without however,·
showing disregard to the existing laws. This could be possible by prerogative of
some high functionary, who introduce more perfect body of rules, discoverable
by ju4icial conscience, which could stand side by side with the existing law of
the land, overriding it in case of conflict, but not repealing the latter. This led
1
England.
During the late thirteenth and early fourteenth century in England,
the common law courts had consolidated their jurisdiction and the system
of law which they administered had become rigid, stereotype and incapable
of meeting the requirements of the people. Therefore, in order to keep pace
with the progress of the society, new courts, namely, the equity courts 1
were established which recognised new rights, provided new remedies and
thus saved English legal system from stagnation. Therefore, as rightly ·
pointed out by Holdsworth, the evolution of the modem equity law began
with the history of courts in England during the medieval period. There were
three types of Courts functioning in England at the beginning of the 14th
century.
The introduction of equity through the new writs, led to the phenomenon
of a double system of law, the newer (equity) practically overriding the older
(common law) while affecting to treat it with the utmost deference. 2 The
Chancellor of Exchequer in his capacity as the "Keeper of the King's
Conscience" justified the rules of equity introduced by him in exercise of exerting
his undefined authority. It may be stated that the foundation of equity
subsequently led to evolution of the significant theories of trusts, specific
performance of a contract, injunctions, etc. thus seeking to serious deficiencies
and shortcomings of the common law of England.
1. The Exchequer.-The King's Court originally consisted of a small body
of great men who assembled as Curia Regis on those occasions and joined feasts
Crown. This Curia Regis set up an administrative department called the
Exchequer, to deal with collection of the Royal revenue. Law and revenue being
intimately related, the Exchequer, presided over by Chief Baron, began ·to act
as a .law Court. It combined administrative with judicial work and dealt wih
matters primarily related to the public revenue.
2. Court of Common Pleas.-There was also a Royal Court, which
followed the King when he travelled about the country. It disposed of Common
Pleas, i.e., cases in which both parties were subjects as distinguished from
Crown Pleas or cases in which Crown was a party. Since the Court of Common
Pleas accompanied the King in his journeys, suitors had to make tiresome
1. These courts were called the Chancery Courts of England.
.
2. This found expression in the maxim 'equity follows the law'.
376 JURISPRUDENCE AND LEGAL THEORY
\
journeys to obtain R9yal Justice. Therefore, with 'the passing of Magna Carta in
1215, an enactment (Act XVII) provided that the Court of Common Pleas would
no longer follow the King in his tours and hereafter, the Court which dealt with
civil disputes was stationed and worked at Westminster.
3. Court of King's Bench.-The Court which accompanied the King on his
journey for deciding cases in which King was a party., was c·a lled King's Bench
after the Common Plea Court was permanently located at Westminster. It
dealt with criminal cases and functioned upto the reign of King Edward III
(1327-77).
All these Courts administered the cu~tomary common law which was
mostly based on usages and traditions and therefore, they were called the
Courts of Common Law.
The equitable jurisdiction of the Courts of Chancery grew out of the
exigencies of time and deficiencies of the common law system. The common law
suffered from three major defects, namely,-
(1) in many cases there was no remedy available at all;
(2) the remedies granted by common law were primitive and inadequate;
(3) early actions and procedure were cumbersome and arbitrary. The equity
law sought to remove these deficiencies of common law through its three-fold
jurisdiction, namely, (1) exclusive, (2) concurrent, and (3) auxiliary jurisdiction
respectively.
The exclusive jurisdiction of the Chancery Court provided relief in respect
of equitable rights as opposed to legal rights, which were protected by common
law courts. Thus the matters relating to trusts, redemption of mortgage,
administration .of assets of the deceased, guardianship of infants etc. 1 for
which no remedy was provided under the common law, could be taken
cognizance of by the Chancery Court under the exclusive jurisdiction of
equity.
The concurrent jurisdiction of equity extended to two categories of cases,
namely, those for which remedy granted by common law courts was totally
inadequate and those for which common law courts provided remedy in an
indirect manner or through multiplicity of suits. Thus the remedies provided
under the equity law for these cases included injunction, specific performance of
a contract, interpleader suits, accounts, partnership, set off etc.
In exercising its auxiliary jurisdiction, equity did not itself decide upon
the rights of parties but merely lent its help by affording the benefit of its
special procedure, such as discovery of documents, appointing a receiver, grant
of an injunction etc. Thus auxiliary jurisdiction was exercised where legal
remedy was available for the breach of a legal right but the procedure thereof
was defective and cumbersome. · They find their application in the form of equitable doctrines. For example, Equity acts m
1 ,... :tion 34 of the Judicature Act, 1873.
OI'HER SOURCES OF LAW 377
Equitable Remedies:
TI1e new remedies of injunction, specific performance, set-off, etc. invoked ·
opposition from the common law Courts and also the Parliament and therefore,
Chancellor was warned of the field of common faw and required not to interfere
in cases where common law could offer a remedy. Consequently, Chancellor
confined his jurisdiction only to supplement the defects of common law. ·
The conflict between the common law courts and the Chancellor's equity
jurisdiction reached its climax in 1616 when Chief Justice Coke and Lord
Chancellor Ellesmere came face to face in a case where decree was obtained
before Lord Coke by practising a fraud. The Chancellor, thereupon granted
perpetual injunction against the decree.:.holder in order to undo the fraud. But
the validity of this action (i.e., grant of injunction by Chancellor) was seriously
questioned by Chief Justice Coke who declared that the person who obtained
such an injunction was liable to be proceeded against under the statute of
Praemuniro for the offence of challenging the judgment of King's Court in the
Chancery Court. King James I referred the _matter to Bacon, the then Attorney-
General and other eminent lawyers and finally settled the controversy in
favour of Lord Chancellor. This paved way to the development of equity law as
litigants could now freely come to Chancellor's Equity Court for relief in cases
where there was no relief or there was inadequacy of relief under the common
law.
The subsequent remedies developed in form of trust, equitable ownership,
jurisdictions in regard to infants, lunatics, married women, etc. expanded the
equity jurisdiction.1 Therefore, there was need to reorganize the courts
functioning in England towards the last quarter of the 19th Century. This was
done by passing of the Judicature Act, 1873 and 1875 whereby the existing three
Courts, i.e., King's Bench, Common Pleas and Equity Court were abolished and
replaced by High Court of Justice.
Juci.icattire Acts, 1873 and 1875
Prior to the Judicature Act, 1873, common law and equity law were
administered by different court, i.e., the Common Law Courts and Court of
Chancery. None of these two Courts could grant complete relief, i.e., both legal
and equitable. However, t}:t.e Judicature Acts of 1873 and 1875, brought about the
fusion of law and equity. Consequently, a High Court of Judicature wa·s
established which consisted of five divisions, namely,
(1) the Court of Chancery;
(2) King's Bench;
(3) Court of Common Pleas;
1. Equity in course of its development adopted a number of maxims to provide relief ~o partiE:s.
personam; Equity follows the law; Equality is equity; Delay defeats equity. He who seeks
equity must do equity; Equity looks to the intent rather than the form, etc.
 378 .JURISPRUDENCE AND LEGAL THEORY
(4) Exchequer Court; and
(5) The Court of Probate, Divorce and Admiralty division.
According to Sir Henry Maine, it was greatly owing to Lord Eldon ~elf,
. during his lorig regime in the Court of Chancery, that equity became a body of
rules more elastic than the common 1aw. · · . ·
A similar system ptevailed in the history of R~man equity law when th~
edicts of the Praet.or!! were consolidated by Salvious Inlianus in the reign of
Emperor Hadrain. 'The work of the Praetors was fin~lly adopted into the body
of Roman law by the legislation of Justinian, as were the principles of equity ·
law of the English Chaneellors into the law of England by the Judicature Act of.
1873. In either case, equity ceased to exist as an independent system of law, but
bequeathed its principles to the legal system into which it was finally
-absorbed.1 · ·
As Lord Cairns put it "with the passing of the Judicature Acts of 1873 and
1875, the Court is now not a Court of law nor a Court of equity, but it is a Court of
comple~e jurisdiction". Summing up the relation between law and equity, Lord
Talbot m Dudley v. Duddly2 observed "now equity is no part of the lc:iw, but a
moral virtue, which qualifies, moderates and reforms the vigour, hardness and
edge of the law: it does also assist the law where it is defective and weak and
defends the law from its crafty evasions and delusions". Equity therefore, does
not destroy the law,por create it, but assists it.
It is thus evid~nt that equity has played a significant role in the
development of law i1' England. Sir Henry Maine recognised equity as a source
of law ~nd observed that the permanence and rigidity of law adversely affects
the fulfilment of the n.eeds of a developing society. Therefore, some measures
are ~ec~ssary to mak~ the law adaptable to the requirements of the society.
Eqmty is one such met:1ns, the other two being legal fictions and legislatic-11. Of
the three m~asures, equity has greater binding effect on the existing law
because of its superior principles and sanctions. Yet another reason for
~ecognising equi~ a~ c\ source of law is that once any rule or principle of equity
1s accepted as a ~m~mg precedent by the court of law, that precedent is binding
for s~bsequ~nt similar decisions. It is thus evident that equity has a significant
~ol~ m shaping law according to the needs of the society and therefore, it is an
indirect source of law.
Equity Jurisdiction ih Indfa
_It ma):' b: stated that in India there is no separate equity law as such but
the fme prmcip~es ?f ·e quity are incorporated in various statutory laws. The
general r~le which 1s followed in this regard is that in absence of specific law
on ~ sub1ect, the case shall be decided according to the principles of justice,
eqmty and good consc:ience. In other words, this meant application of English
1. Sir Henry Maine : J\:ncient Law c iii.
2. (1905) 24 ER 118.
OTHER SOURCES OF LAW 379
equity laws so far as they are applicable to Indian society and circumstances.1
In the illustrative case of Varden Seth Sam v. Luckpathy2 the Privy Council
observed, "although the English law was not obligatory upon the courts in the.
mofassils, they ought, in proceeding accprding to justice, equity and good
conscience, to be governed by the English law applicable to a similar state of
. circumstances". In Waghela' v. Sekh Masludin 3 their Lordships of the Judicial
Committee of the Privy Council remarked that equity, justice and good
conscience, has been generally interpreted to mean the rules of English law if
found applicable to Indian society and circumstances.
Although some of the doctrines of equity which have not been found
suitable to Indian conditions have been rejected 4 the bulk of equitable
principles have found place in Indian laws. For instance, the Indian Trusts Act,
1882 and the Specific Relief Act, 1963 are· entirely based on equity law. That
apart, most of the doctrines relating to transfer of property, such as the doctrine
of election, contribution,· marshalling, subrogation, part performance,
redemption of mortgage etc., are derived·from equity.
Salmond did not recognise equity as an independent source of law,
probably because it only accounts for supplementing and reshaping the existing
common law rather than originating it. Be that as it may, there is no doubt that
equity formulated certain basic principles which determine the acceptance of
n.ew rules as having the force of law. Considered from this point of view, equity
may be considered as ail indirect material source of law.
Be that as it may, it cannot be denied that the progressive doctrines of
equity innovated by the Chancellors until the passing of the Judicature Act,
1873, substantially contribute~ to the refinement and improvement of common
law in England. These doctrines were invented for the purposes of securing the
better administration of justice. The greatest merit of equity jurisdiction was as
pointed out by Sir Henry Maine, that it was a body of rules more elastic than
the Common Law. It was consequent to the enactment of the Judicature Act of
1873 (in U.K.) that equity ceased to exist as an independent system, but
bequeathed its principles to the common law system into which it was
absorbed.5
Finally, it must be reiterated that Salmond recognises literary source of
law as an historical material source which includes opinion of eminent jurists.
They are entitled to great weight but are not binding like legislation and
precedent. He also considers conventional law having its sources in agreement
as a legal material source of law. Agreements play an important role in shaping
the international law as a large number of States quite often enter into an
agreement to follow a particular procedure with regard to a certain matter, if
1. Regulation IV of 1827.
2. 9MIA303.
3. (1887) 14 IA 89 (96); See also Dada v. Babaji, (1868) i Born HCR 36.
4. The distinction between legal and equitable property, the doctrine of advancement etc. is
not followed in India.
5. Holland T.E. : The Elements of Jurisprudence (13th Ed., Indian Reprint 2010) at p. 76.
380 JURISPRUDENCE AND LEGAL THEORY
I .
the agreement is continued to be followed for a Iobg time by a large number of
States, it acquires the force of a custom and su<;h a custom eventually beco~s a
source of international law. However, Keeton, does not subscribe to the vfew
that agreement can ever be _a sow;ce of international' law because in the above
situation, it is in fact the 'custom whiqi is a source of international law and not
the agreement which is merely a souFte of custom.

000

PART-IV
JURIDICAL CONCEPTS
AND
JURAL ANALYSIS
 17
LEGAL RIGHTS & DUTIES
.The real credit of development of human civilization goes to law and its
prohibitive processes which apprised man of his rights and duties as a unit of
the society_l When people come in contact as members of society, they have
certain legal rights and duties towards one another. These rights and duties are
regulated by the law prevalent in the society. It is· well known that the main
purpose of law is to protect human interests by regulating the conduct of
individuals in the society. For the attainment of this objective, it is necessary
that State should make use of its physical force for the enforcement of legal
rights and punish those who violate these rights.
It therefore, follows that in all civilised societies law consists of those
rules which regulate human conduct and it is the State which enforces the
rights and duties created by such rules. The conception of right accordingly is of
fundamental significance _in modern legal theory because rights are
indispensable for all civil societies and are recognised and enforced by the
State.
Legal Concepts
Before entering into discussions on rights and duties as legal concepts, it is
necessary to understand the meaning of the term 'legal concept' and its import.
The term 'concept' has many meanings, but broadly stated "it is an abstraction
from particular things or events etc. forming a general notion." Paton defines
concepts as those categorisations which are rigidly determined as a matter of
law.
Bodenheimer defined legal concepts as working tools of judicial reasoning
and art of doing justice according to law. These include, right, duty, power,
privilege, liability and immunity and expound the relations between those
notions.
Highlighting the importance of legal concepts,' Benjamin N. Cardozo
observed that "concepts are useful and indeed indispensable as their Halue is
deeply imbedded in our law and legal philosophy". The entire edifice of law is
based on legal concepts and they are best instruments for solution of legal
problems. 2
As regards legal right as a concept, T.E. Holland, in his book on 'Elements
of Jurisprudence' has rightly observed "jurisprudence is concerned not so much
with the purpose which law subserves, as with the means by which it
1. Subbarao G.C. : Jurisprudence (3rd ed) p. 161.
2. Cardozo B. N. : The Paradoxes of Legal Science (1928) p. 61.
( 383)
384 JURISPRUDENCE AND_LEGAL THEORY
subserves them. The purposes of law are its re1\10te _objec~. The means by whicll
it effects those purposes are its immediate objects. The immediate objects of law
are the creation and protection of legal rights".1. .. ·
It is to be noted that the term 'right' is dosely con.rt~ted with the terms
'wrong' and 'duty'. It would therefore be desirable to refer to them before
analysing the concept of right. \ '":'hether_ knowingly or otherwise, and . without any question of negligence 1
General meaning of the term RIGHT
In general parlance, right means ~laims or titles, liberties, powers and
immunities summed together. In other sense, it is a permissible action within a
certain sphere. The la tin term for right is rectus which means 'correct'.
Salmond has defined a 'right' as a man's capacity of influencing the acts of
another, not by his own strength, but of the opinion on the force of society.
According to Julious Stone, a 'right' .connotes : -
(i) a claim justifiable in words ;
(ii) an attitude of human being by virtue of some supposed ideal or natural
right of life, equality, property which is in acordance with natural law.
(iii) the existence of right presupposes existence of a remedy for its
breach. This has been well explained by the latin maxim ubi jus ibi remedium.
The German equivalent for right is Retch, in French it is called _'droit.'
Legal Wrongs
Salmond .defines 'wrong' as "an act contrary to the rule of right and justice.
A synonym of it is injury, in its true and primary sense of injuria". In its legal
sense, it is known as legal injury which is against law or jus.
Wrongs may be of two kinds, namely, p) moral wrongs ·a nd (2) legal
wrongs.
A moral wrong is an act which is morally or naturally wrong, being
contrary to the rule of natural justice whereas a legal wrong is an act which is
legally wrong, being contrary to the rule of legal-justice and a violation of the
law. fn simpler words, a wrong is a violation of legal right (injuria).
A legal wron·g may or may not be a moral wrong and conversely a moral
wrong may or may not be a legal wrong. For instance, non-payment of a time-
barred debt is a moral wrong but it is not a legal wrong since the same is not
enforceable by law. Generally, recognition of an act as a legal wrong entails
punishment or suppression by the physical force of the State.
Duties
A duty is an obligatory act, i.e., it is an act the opposite of which would be
wrong. Thus duties and wrongs are generally co-related. The commission of a
wrong is the breach of duty and the performance of a duty is avoidance of
wrong. 2
1. Holland T.E. : The Elements of Jurisprudence (13th Ed., lndian RE:!print 2010) at p. 81.
2. Fitzgerald P.J. : Salmond on Jurisprudence, (12th ed) p. 217.
LEGAL RIGHTS & DUTIES
385
_ Duties are also of two kinds, namely, (1) Moral, and (2) Legal.
A duty may be moral but not legal or it may be legal but not moral or it
may be both mo~al an~legal at once. Salmond illustrates this by an example. In
England, ther~ IS a legal dutf not to sell, have for sale adulterated milk
Smee this duty is irrespective of knowledge and negligence, it is exclusiveiy
legal ~d not a moral_duty. •?n_the other hand, there is no legal duty in England
to ~efram from offensive cunos1ty about one's neighbour, even if the satisfaction
of It does them harm. Here it is clearly a breach of moral duty and not of legal
2
duty. Not to steal is both, one's moraland legal duty.
. The law enforces the performance of a legal. duty or punishes the .
disregard of it.
Classification of Legal Duties
~e_duties which the la': recognises may be of different kinds. They may
be classified under the followmg heads :
Positive and Negative Duties.-A duty may either be positive or
negative. When la~ ol,li?es a person to do an act, the duty is called positive.
When the law obliges him/her to refrain from doing an act:, it is a negative
duty. If a person owes a debt to another, he is under a duty to pay-off the
am~unt_ of debt. This is his p~sitive du_ty. The performance of a positive duty
extinguishes :both duty and nght. The illustration of a negative duty is that if
~ person h~s a right to a land, others are under a corresponding duty not to
interfere with that person's exclusive use of land. Thus a negative duty is not
capable of being exitinguished by fulfilment.
Primary a~d Seconda~y Duties.-Again, a duty may be either primary or
secondary. A pr!mary duty is one which exists per se and is independent of any
ot~er duty. For instance, to forbear from causing personal injury to another is a
:pnmary duty. A secondary duty, on the other hand, is one which has no
independent existence but exists only for the enforcement of other duties. For
example, a duty to pay ~amages for the injury done to a person, is a secondary
duty. A secondary duty 1s also called a sanctioning or a remedial duty.
Absolute and Relative Duties.-According to Keeton, a duty is an act or
forbearance compelled by the State in respect of a right vested in another and
the breach of which is a wrong. Hibbert refers to absolute and relative duties.
According to him, absolute duties are owed only to the State, breach of which is
generally called a crime and the remedy for it is punishment. Relative duties
are _owe~ to any person other than the one who is imposing them, the breach of
wh1~h _is called ~ ~ivil injury which is redressible by compensation or
rest~tuhon to the mJured party. Austin also supports the view that certain
~uhes are absolute, that is, they do not have a corresponding right. For
instance, duty towards God or State or a duty not to commit suicide is absolute.
A duty of kindness towards animals is also an absolute duty.
1. The doctrine of constructive mens-rea applies in such cases.
2. Fitzgerald P.J. : Salmond on Jurisprudence, (12th eel) p. 217.
386 JURISPRUDENCE AND LEGAL THEORY
\ 387
Dr. Allen also supports Austin's view t~at a duty owed to the State is
absolute and there are no co-relative rights in the State. To quote his words, "A
State compels children to go to schoot or to be vaccinated, prohibits the sale of
certain drugs or alcoholic liquors, or forbids the importation of animals which
have not first been quarantined. In such cc1:ses, the State has no corresponding
right. Particularly, the duties enforced by criminal law are absolute duties".
Salmond, however, rejects Austin's concept of absolute duty. He says,
"there can be no duty without a right any more than there can be a husband
without a wife or parent without a child". Rights and duties are always
correlated and therefore, there is no scope for an absolute duty. Gray also
denies the existence of an absolute duty .1
Legal Rights
Sir John Salmond defines right as an interest recognised and protected by a
rule or justice. It is an interest in respect of which there is a duty and the
disregard of which is wrong. A man has varied interests but all of them are not
recognised by law. Many interests exist de facto and not de jure; they receive no
recognition or protection from any rule of right. The violation of them is no
wrong and respect for them is no duty. Interests are things which are to man's
advantage, e.g., a man has interest in his freedom or reputation.
Like wrongs and duties, rights are either moral or legal. A moral or
natural right is an interest recognised and protected by a rule of morality-
violation of which would be a moral wrong. For example, parent's interest to
command respect from their children is their moral right but if children violate
it, it is a moral wrong. A legal right, on the other hand is an interest recognised
and protected by a rule of law, violation of which would be a legal wrong. Thus
every one has right to privacy in his house and if any person interferes with
this right, it would be a legal wrong.
Defining a legal right John Austin observed, "a party has a right when
another or others are bound or obliged by law to do or forbear towards or in
regard of him". This definition has been criticised _o n the ground that it
overiooks the element of interest involved in the conception of right. John
Stuart Mill has illustrate the inadequacy of Austin's definition of right by
pointing out that when a prisoner is sentenced to death the Jailor is duty-bound
to execute him. Then will it be proper to say (as per Austin's definition) that
the convict has a right to be hanged? In fact it is only a disability imposed by
law and no right at all.
T.E. Holland defines a legal right as "a capacity residing in one man of
controlling with the assent and assistance of the State the actions of others".
Thus, Holland lays greater emphasis on the element of enforcement of legal
right while Salmond lays greater stress on recognition of right.
Ihering also defines right as a 'legally protected interest'. He considers
law as a means to an end.
1. Gray J.C. : Nature and Sources of Lnw, p. 18.
LEGAL RIGHTS & DUTIES
. Referring t~ the concept of right in early Roman Law, Sir Henry Maine
pointed out that m t~(?Se days much more prominence was given to the idea of
duty th~ t~~t of r~ght. While explaining the concept of right he observed
that an_ mdividual is sai~ to. have a legal right if he by his own force or
persuasion, can carry out his wishes, other by his own acts, or by influencing the
acts of others, he has the 'right' to carry out his wishes. It is on this analogy
that 'right' is called a "legally protected interest".
Sir Henry Maine's historical survey of the concept of 'legal right' further -
reveals that ~her~ was n? word like right under the Japanese code till the term, --
Ken-re meanmg power interest' was coined by Dr. Tsuda in his work published
in 1868.1
. Vinogr~dof~ observed that "right is a range of acti~n assigned to a
particular will w1!hin the _social order established by law ... a right, therefore,
suppose~ a potenha! exerc1s: o~ power in regard to things or persons ... when a
man cl~i°:~ something as his nght, he claims it as his own or as due to him".
The defmttion, h~wever~ ~ee1;1s to ?e
unsatisfactory as it does not take notice of
!he. elements of recogn1hon and protection' by the rule of justice which are
mdispensable for a legal right. ·
Dean Roscoe Pound in his analysis of 'Legal Right' observed that it
~nnotes.:
{1) an interest which is secured and protected by law;
(2) a recognised ~laim to act or forebearances by another or by all in order
tu :make the mterest effective ;
• (3) the capacity of creating or altering rights;
(4) the privileges and liberties ; and
(5) as an adjective, it is meant to give effect to recognise and give effect to
moral nghts.
. This d~scr~p_tion of legal right as given by Roscoe Pound appears to be more
logical and 1ud1cially acceptable.2
. G:W. Paton also agrees that one of the essential conditions of a legal right
is th~t it should be enforceable by the legal process of the State. He, however
mentions three exceptions to this general assumption : - '
1. It i~ not necessary that the State should always necessarily enforce all
the legal rights. There may be cases when instead of enforcing a right the
State may redress the wrong by getting compensation paid to the injured p;rty.
2. Th~re are certain rights which are imperfect by natu~e. That is, they
are recognised by the law (State) but not enforced by it. For example, in a time-
barred debt the right of the creditor to recover th~ debt is an 'imperfect right'
because the debt becomes legally irrecoverable after the expiry of the period of
1. Quoted fro~ Holland T.E.: The Elements of Jurisprudence (13th Ed. 2010) p. 280.
2. Pound : Jurisprudence (1910) p.81.
 LEGAL RIG~S. & DUTIES
388 · JURISPRUDENCE AND LEGAL THEORY 389
\
i
limitation prescribed by the law of limitation.1 But if the debtor makes
payment of. borrowed money to the creditor after the period of limitation, it
water closet, because in fact the plaintiff-
use ~he path. I~ a man enters another man.:l;d
by virtue of a licence and not as of a right.
km
:~t~t only ~he_ permission to
perm1ss10n, he does so
would be legally recognised as valid payment of debt and the debtor shall not
An eminent French jurist Duguit is O d h .
have the right to recover this amount from the creditor on the ground that the legal right is human will H phpose to t e view that the basis of a_
debt being time-barred, he was not legally bound to pay it. Again, a time- . e argues t at all laws o . . t f
solidarity hence there is no existence of . . h .. . 1 ngma e . rom social
barred debt can be revived by any subsequent written consent even if no new human will is opposed to social ood : ng t a_s su~. Duguit believes that
consideration is specified in the document. interests between individuals Th!efore e~use. it always leads to conflict of
3. There ·are certain laws which do not confer right of enforcement to the right in society Law bein . . . , ere is. no place for the concept of
. g an express10n of social sol"d ·ty d
courts, therefore their enforcement is not possible though they are recognised by every one should abide by his duties and has . I an ~ e~ands that
law. For instance, the International Court of Justice has no power to compel Duguit rejects the concept of right as im 1 nodnght_ to clau1} nghts. Thus
enforcement of its decrees under the international law. society. · mora · an agamst the interest of the
Chief Justice Duglus Holmes of the Supreme Court of U.S.A. holds the Duguit's view of absence of ri ht h h
view that right is an inherent attribu'te of human will. Therefore right is criticis~d by many"writers. Accordin . tf Ha as, o~ever, ?~en vehemently
"nothing but a permission to exercise certain natural powers and upon certain reject~ !he ~xistence of any subjectivfright a:~dn~:~~~ ~fi~1t
s_ t~e°zry <>_f ri?ht
conditions to obtain protection, restitution or compensation by the aid of public Dugu1t s views about legal rights, Dr. Edward Jenk . \ ac ohng t. ReJechng
force". According to him, legal right is the power of enforcing legal limitations
onconduct.
the main function f th St .
these duties are e~orc:d f::e ;:~;e::;;r;hen~o;cement
words, when a person wron ed a roac
t
s wn es t at undoubtedly
duties, but after all
e m erests o th~ people. In other
J.C. Gray prefers to take an objective view regarding concept of right and
observes that it is the force of the State which lends validity to a · legal right.
According to him, "a legal right is that power which a man has to make a
person or persons do or refrain from doing a certain act or certain acts, so far as
for committing the breach o¥ his a~ty i ; r ~-e s:te to pumsh the wrongdoer
t;;:~~~Y,)o compel the wrongdoe~ to ;!~':in ~:.~:;,':f7! ':'~~:=
the power arises from society imposing a legal duty upon a person or persons". 2
The .German jurist, Kirchmann defined 'right as a physical ower which
The definition of 'legal right' adopted by Dr. Holland brings out the
distinction between right and might. It is sometimes said that "might is right"
meaning thereby that every right is the creation of might or power. Every right
;;~?!!ei~o;,~:~:~~!.:~~~g~:.:~: ~;'rh::;~:rc::::!t!:::;j:~~:~
whether divine, legal or moral rests on a relative duty on a party or parties
other than the party in whom the right resides. This relative duty would not
~ ~me _jurists, notably Buckland, Ihering and Salmond su est tha
be duty if the law which imposes it were not sustained by might. But a right is nght 1s ~~-mte~est or an expectation guaranteed by law. AccofJm to ;e~!l~
clearly distinguished from might insofar as a right is one's capacity of obliging :o;lock,.. ~1ght is a freedom allo~ed a~d power conferred by law'~ T.H. Green
others to do or forbear by means not of one's own strength, but by the strength of in~f:idu:r~t~ are powers which It is for general well-being that .the
II

a third party, i.e., the State whereas might is the capacity of obliging others . ould possess . Emanual Kant believes that "right · th
authority to compel". is e
to do or forbear by virtue of one's own strength.
. E~plaining the main attributes of a legal right, the High Cou t , f M d
It will be erroneous to think that exercise of man's legal right depends m Daniel v. State4 observed as follows : - r o a ras
upon his own powers of force or persuasion. It is in fact, the power of the state
which protects man's legal right to carry out his wishes, and will compel such (i)
f
1 ~trict s~nse ~f the term, legal right is one which is an ascertainable
acts or forebearances on the part of other persons, as may be necessary in order c aim. which is enforceable by courts and justice· administration
that his wishes may be so carried out. 3 agencies;
Martin distinguishes legal right from a mere permission. Quoting an {ii) In its wider sense, it has to be understood as any advantages or benefit
illustration he observes that it is error~ous to argue that a plaintiff workman conferred upon a peson by rule of law;
had a right to go along with the path across which the machinery was erected,
for he was a workman employed in the dockyard and had liberty to use the 1. Pato~ G. W. : A Text Book ofJurisprudence, p. 222.
2 - Laski Harold: Duguit 's Conception of the State in Modern Theories of Law p 52
1. In the Indian Limitation Act, 1963 this period is three years. 3. Jenks Edward : The new Jurisprudence, p. 176. ' · ·
2. Gray /. C. : Nature and Sources of Law, p. 18. 4. AIR 1968 Mad. 355.
3. Holland T.E.: Elements of Jurisprudence (13th Ed. 2010) p. 86.
 JURISPRUDENCE AND LEGAL THEORY
390
I
(iii) legal rights need to be recognised by l\iw;
(iv) There are rights which are recognised by the International Court
under the law of nations ;
( v) Truly speaking, a legal right is a capa~ity of asse_rting a recognised
interest rather than a claim that could be asserted m the law court.
The Supreme Court of India has defined leg()l right in State of Rajasthan
v. Union of India, 1 wherein it observed :
"In a strict sense, legal rights are co-relative of legal d_uties ~d
are defined as interests which the law protects by imp~~m~
corresponding duties on others. But ip. a generic sense, the word nght
is used to mean an immunity from the legal power of another.
Immunity is exemption from the power of another in t1:e s~e way ~s
liberty is exemption from the right of another. Immunity, m short, is
no subjection".
2
It will not be out of place to refer to the case of Mr. '~' v_. Hospital 'Z'
wherein a conflict bet,ween right of privacy and duty ~o maintain secrecy was
involved for adjudication before the Apex Court. In this case, the blood of the
appellant was to be transfused to another and, therefore sample thereof was
tested at the respondent's hospital and was found to be HIV(+). On acc~:mnt of
disclosure of this fact, the appellant's proposed marriage to gi~l. '1:-' which had
been finalised, was called off. Moreover, he was severally cnhc1sed and was
also ostracized by the community. The appellant, therefore, approached the
National Consumer Disputes Redressal Commission (N~DC) fo~ damages
against the respondents on the ground that the information required under
medical ethics to be kept secret, was disclosed illegally and he1:~e the
respondents were liable to pay damages. The NCDC dismissed the p~t~hon on
the ground that the proper forum for redres_sal of his gri~~ance was civil Cou_rt
and not the National Consumer Commission. The petitioner then moved m
appeal before the Supreme Court against the decision of ~CDC. _He conten~ed
that the principle of 'duty of care' applicable to perso~s m medical profess~on
'included duty to maintain confidentiality and the said duty was co-relative
with the right vested in the patient, that whatever came to the know~edge of
the doctor, would not be divulged. He alleged that respondents were h~ble_ for
violating their duty to maintain secrecy and for violating the appellants nght
to privacy. The Supreme Court observed :
"Right is an interest recognised and protected by moral and legal
rules. Respect for such interest would be a legal duty ........ If there is a leg~l
right vested in a person, he can seek _protection ~ga~st a person who is
bound by a corresponding duty not to violate that nght .
The Court refused to accept the appellant's contention that the
respondents were under a duty to maintain confidentiality as the proposed
1. AIR 1977 SC 1361.
2. n QOS!) s sec 296.
LEGAL RIGHTS & DUTIES 391
marriage carried ~he risk · to an identifiable person who had been protected
from being infected with communicable disease from which the appellant
suffered. As a matter of .fact, if a person who suffers from dreadful disease like
"AIDS", knowingly marries a woman and thereby transmits infection to that
woman, he should be held guilty of offence under Sections 269 and 270 of IPC.
Therefore, appellant's contention that the respondents were Wider a duty to
maintain secrecy is not acceptable and his appeal is liable to be dismissed.
Theories of Legal Rights
There are three main theories regarding nature of legal rights. They are
(1) Will Theory, (2) Interest Theory and (3) Protection Theory:
1. wµ1 Theory of Legal Right
The will theory of legal rights has been supported by Hegel, Kant, Hume
and others. According to this theory, a right is an inherent attribute of the
human will. The subject-matter of right is derived from human will. The
theory suggests that it is through a right that a man expresses his will over an
object. The theory has also been accepted by historical jurists of Germany.
Puchta observed that a legal right is a power over an object which by meai1s of
his · right can be subjected to the will of the person enjoying the right.
Vinogradoff considers that psychology of asserting claim is the basis of legal
right. In a social order established by law no man is absolutely free to act as he
likes, but his freedom of action is restricted due to rights of others.
According to Austin, right of a person means that others are obliged to do
or forbear from doing something in relation to him. Austinian conception of
right is obviously based on sovereign power of the State. Likewise, Austin
defines duty as an obligation the breach of which is punishable because of the
penal sanction attached with it. Justice Holland of U.S.A. pointed out that a
legal right is nothing but a permission to exercise certain natural powers to
obtain protection under certain conditions. It has the support of public force for
its protection.1
Duguit suggests that will is not an essential element of a legal right or
law. The real basis of law is social solidarity. He calls theory of subjective
right as a mere metaphysical abstraction.
2. Interest Theory of Legal Right
Another popular theory regarding the nature of legal right is called the
Interest Theory which was mainly propounded by the German Jurist Ihering.
According to this theory, "a legal right is a legally protected interest". lliering
does not emphasise on the· element of will in a legal right. He asserts that the
basis of legal right is 'interest' and not will. The main object of law is protection
of human interests and to avert a conflict between their individual interests.
But Salmond has criticised Ihring's theory on the ground that it is incomplete
since it completely overlooks the element of recognitio~ by State. A legal r_!__ght
1. Dias & Hughes : Jurisprudence, p. 250.
 392 JURISPRUDENCE AND LEGAL THEORY
should. not only be protected by the State but s\10tdd also be legally recognised
.-_, by it. He cites an·example to substantiate this view. The interests of beasts are
· to some extent protected by law inasmuch as cruelty to animals is a criminal
offence. 1 But beasts cannot for that reason be said to possess a legal right of not
being treated with cruelty. Salmond treats the right to protection of animals
from cruelty merely as a moral right. ·
· J.C. Gray was greatly impressed by Salmond's·view about legal right. He,
· ·however, held that the interest theory was only partly true. He emphasised
that a -legal right is not an interest in itself but it is only a means to extend
protection to interests. He considers legal right as that power by which a man
makes other persons do or refrain from doing a certain act by imposing a legal
duty upon them through the agency of law (State). Thus for example, if a man
lends some money to another, the right of the creditor to recover his money from
the debtor is, in reality, not his legal right but it is rather a power conferred on
him by law by the exercise -of which he recovers the debt. In other words, the
creditor's interest to get back his money from the debtor is protected by law but
this interest is not a legal right in itself, it is rather his object. It is the power
conferred on him by law to recover the money which is his legal right.
Dr. Alleh has attempted to _reconcile the two theories by pointing out that
the essence of a legal right seems to be, not legally guaranteed power by itself
nor legally protected interest by itself, but the legally guaranteed power to
realise an interest. Thus a sound theory would be to consider both the elements
. of will and interest as essential ingredients of a legal right.
3. Protection.Theory of Legal Rights
The totalitarian view completely denies the existence of· legal rights.
They argue that State being omnipotent, individual has no separate existence
from it. Therefore, in fact all rights belong to the State and the individuals do
not have any independent legal right as such. This view has, however, been
rejected being far from reality in the modern context of democratic welfare
States.
. Essential Elements of a Legal Right
According to Salmond every legal right has the following five elements or
characteristics : - · so required. The person bound by the correlative duty are persons in general, ,for ..
1. The Person of inherence.-He is also called the subject of right. A legal
right is always vested in a person who may be distinguished as the owner of
the right, the subject of it or the person of inherence. Thus there cannot be a
legal right without a subject or a person who owns it. However, the owner of the
_right need not be certain or determinate. For instance, an unborn child possesses
a legal right although it is not certain whether he would be born alive or not.
Likewise, a right can be owned by the society at large, it is a valid right
though the subject of right is indeterminate.
1. In India, the Prevention of Cruelty to Animals Act, 1960. See also the Wild Life Protection
Act, 1972.
LEGAL RIGHTS & DUTIES 393
2. The Person of "incidence.-A legal right avails against a person upon
whom lies the co-relative duty. He is distinguished as the 'person of incidence.'
· He is a person bound by the duty and so may be described as 'subject of the duty'.
In other words, the person whose duty is to act or forbear for- the benefit of the
subject of the right.
3. Content of the right.-The act or omission which is obligatory on the
person bound in favour of the perso_n entitled. This is called the content or
substance of right.
4. Subject-matter of right.-It is something to which the act or omission
relates, that is, the object over which a right is exercised. This may be called
the object or subject-matter of the right.
It may be noted that the first two of these series of elements of a legal
right are persons, the third term is the 'object' and the fourth is act or
forbearances to which the person mentioned in the second series is bound.
Thus, a legal right postulates (1) a person of inherence, (2) a person of
incidence, (3) the act or forbearance to which the former is entitled and which
the latter is obliged to perform.
Some writers, particularly Dr. Holland argue that there are certain
rights which have no objects. He cites an illustration of master and servant
relationship. If B is the servant of A, then in this case 'A' is the person of
inherence, B is the person of incidence ·and reasonable service is the 'act' to
which A is entitled. But in this case the object of right is missing1 because there
is no material thing to constitute an 'object' in this illustration. Sir Salmond,
however, considers that Holland looks at the object of right with such a
narrowness that he is forced to conclude that there are some rights which have
no objects. According to Salmond the object in the instant illustration is the
skill, knowledge, strength,.time etc. of the person bound by the duty. 2
5. Title of the right.-Every legal_right has a title, that is, certain facts
or events which are events by re~son of which the right has become vested in
its owner.
Salmond illustrates these elements of a legal right by referring to an
example. If A buys a piece of land from B, A is the subject or owner of the right
a right of this kind avails against the world at large. The content of right
consists in non-interference with the purchaser's exclusive use of the land. The
object or the subject-matter of the right is the conveyance by which it was
acquired from the former owners. 3 · ··
To take another illustration, suppose a testator leaves a gold ring to a
legatee. In this case legatee is the subject or owner of the right. The gold ring is
the object of the right; the delivery of the ring is the content of the right, the
1. Holland: Elements oflurisprudence, p. 88.
2. Fitzgerald P.J.: Salmond on Jurisprudence, (12th ed.) p. 223.
3. Fitzgerald P.J. : Salmond on Jurisprudence, {12th ed.) p. 223.
 394
JtJRISPRUDENCE AND LEGAL THEORY LEGAL RIGHTS & DUTIES 395
?~e~tor is th~ person of incidence and the ~ill bequeathing the rm·g · th It must, however, be stated that Holland and some other writers are
title of the nght.1 \ _ _ is e
opposed to thEt Salmond's view that 'object' includes not ohly material things
Where a person purchases anythin b . th . . but also immaterial things, and observed that object as an element of a legal
entitled to the und · d . · ~ Y paymg e pnce for 1t, he becomes
ispute nght of use m the thing which he has urchased right includes material things only, and not the things which ·are immaterial
Other persons are bound by the co-relative duty and the owner ie ~e
wh~ ha~ purchased the. thing has a right agains~ the world at l;r · ~~ tbl:~~::~
thich. 1~ also ca~Iecl the subject-matter) of the .right is the thin~ purcha;ed.
. and in their opinion, there may be a right without an object e.g., right to protect
one's person, right to reputation etc.

acqu~re(s the title _of the nght because the property in the object has been
conveyef htrans~err~d) to him in the manner as it was acquired by the former
owner o t at thmg-.
th ~r~: t7e _fore_going illustration it will be seen that every right involves a
ree- 0 re ahon m which the owner of it stands, namely; · essential for enforcement of any legal right. Therefore, if a person wants to use a
(1) it is a right age,inst some person or persons.
(2) It is right to some act or omissio'?- of such person or persons,
3
( ) It is a right ov,r or to something which that act or omission relates.
h 'f1:e~e may be sornorights in respect of one's own person. Thus every person
as~ ng t ~ot to be killed, and the object of this right is one's life Similar!
ro1.ngeht oavs er
a ~1ght nobt ltg e physically assaulted, coerced, deceived o~ defame~'
1mmova e nrop ty
b_
Can a right be used against the State?
Another pertinent question regarding a legal right is whether it can be
used against the State. Austin asserts that State being omnipotent, the subjects
cannot have any right against it. In his view, existence of three parties,
namely, the bearer of right, the bearer of the duty and the sovereign, is
right against the State, he being himself the bearer of duty, cannot play the
role of a Sovereign. As such, subjects cannot have any right against the State,
the latter being supreme sovereign authority.
It must, however, be noted that after the passing of the Crown's
Proceedings Act, 1947 in England, the State immunity extends only to sovereign
functions of the State, that is, there cannot be any right to claim damages
against the State for the tortuous acts committed by it in exercise of its

. , sovereign function, but the State can impose liability on itself for damages
. ht. f . r er , persona1 services, etc. over which a pe_rson has resulting from its non-sovereign functions. 1 Considered from this standpoint,
a ng o enJoyment.
there should be no objection to conferring rights on the subjects against the
Keeton has
. express
. -· . e d a view
· .
th a t a 1ega1 nght - only four elements He
has State.
d oes not consider 'htlct,' f 1 1 ·
th .d f h . - as an essen ia e ement of legal right because it is only
e evi ence O t e nght or the source of the right. Enforcement of Legal Rights
The enforcement of legal rights is possible through the agency of court of
Can there be an Ownerless Right? law established by the State. The usual method of enforcement of a legal right
. The English law d t - h . is award of damages in c~vil cases. In case damages are not considered as
because a ri ht witho oes ~o ~ccep~ t e e~1~tence of an ownerless right adequate remedy, the court may order restitution of the thing itself. This is
the subject of right ma\.1tba sub1ect ~s an 1mp?ss1bdity._ It, however, .accepts that particularly so in case of rare-articles. In certain cases, specific performance
. b . t _ e uncertam or contingent as m case of an unborn child may also be ordered by the Court. Another method of enforcement of legal right
w h ose b emg om ah v~ is u t . (An 1 -
law alth l1 1·t . - ncer am. owner ess right is not recognised by which is commonly resorted to is grant of an injunction whereby a party is
' oug IS not a legal impossibility). ·
restrained from doing an act which is likely to affect the plaintiff adversely in
Like a subject oft· ht b. f . h . enjoyment of his legal right.
an object in res ect of ig .' ~ o J~ct o . ng t IS also essential. A right without
may be material~hin ~ which it ex~sts, is an impossibi~ity. 'Ihe object of right Legal Rights distinguished from Moral Rights
intangible such as ri gh $uch as fu1:11ture, books, cars, buildings or it may also be
respect of domestic !it
~f reputation,_ goo~will, patents and copyright, right in A moral right may be defined as an interest recognised and protected by a
rule of natural justice. For example, right of parents that their children should
versa, the right of ~hons, comp~on~h1p of husband over his wife and vice
of his servant is als~::(enbt~ otverf t~ehir children etc. A master's right to services obey them or the right of children to be loved and protected by their parents.
·, o 1ec o ng t. Thus both, moral as well as legal rights are interests protected, the former is
Thus it would be th t th protected by rule of natural justice while the latter by the law of the state.
in whom it inheres an .seen . a ere ':annot be a legal right without a ·s ubject
The interests or rights of beasts is a unique example of the elements of both
omission relates. cl. a.n obJect or subJect-matter in respect of which the act or
the legal as well as· moral rights being pre:sent. Cruelty to animals is an offence

1. Subbarao G. C. : Jurisli'lrudence & Legal Theory (9th ed.) p. 167. 1. P. & 0 . Steam Navigation Co. v. Secretary of State for India in Council, (1861) 5 Bom HCR Appex.
P- 1.
396 JURISPRUDENCE AND LEGAL THEORY
puni_shab~e under th~ criminal law and,· tht\refore, in a ·sense it may be
~onside~~ as a legal _right because the law pro~cts it and the state recognizes
1t. Bu~ d'1ty of hum~ty so enforced is not conceived by law and hence it merely
:remains ;a moral duty towards them. Also beasts themselves are not capable of
assertin~ this right. · imposing them and breach of them is called a civil injury remedy for which is
·saJ.mond pref~rs to disti~guish ~etween moral and legal right with
reference to their obJects. Accordm~ to ~ , moral ri~t is an interest recognised
and p~otected by rule of natural JUShce whereas a legal right is an interest
recogrused and protected by rule of law or legal justice. ·
Legal Rights distinguished from Fundamental Rights
Apart from the legal rights, which embody claims, liberties, immunities
etc.,_ there are another form of natural r1ghts, which the individual has got
against the ~o~ernm~nt and other individual. Such rights are called
fun~amental n~ts, which ar~ gu?ranteed in the Constitution.. These are rights
which the State enfor~es agamst 1t~elf._ Fu~damenta( right" cannot abridged or
taken away l>y amendmg the Constitution, 1f they constitute the basic structure
of the Constit:ution. 1 Fundamental rights are enshrined in Part III of the
Constitution: of .India and include right to equality,2 right to freedom 3 right to
life and liberty,4 ri?ht · against exploitation,5 right to freedom of ~eligion,6
cultural am:~ ~ducahon right,7 right to constitutional remediesS etc. In United
States, funda~ental rights are called 'Bill of Rights'.
The main ~iff~rence between fundamental rights and legal rights is that
the former are mv1olable whereas the latter are not so inviolable. The word
'inviolable' means that no law, ordinance, custom or administrative order can
abridge or take away the fundamental right. 9 It may be stated right to
property was a fundamental right under Article 31 of the Constitution but it has
been abolished by the Constitution (Forty-fourth Amendment) Act, 1979 w.ef
20th June, 1979, hence now it merely a legal right under Article 300A of the
Constitution.
R_ights and Duties are correlative
/:-:;i:.has ·been generally accepted that every legal right is attended with a
co:-relati~e duty. Th~refore, there is no disagreement on· the point that rights
and duties are co-existent. As already stated, a duty is roughly speaking an act
which one ought to do, an act the opposite of which would be a wrong. The
authorities, however, differ in their opinion whether with each duty there
1. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461 (1618).
2. Article 14.
3. Article 19.
4. Article 21.
5. Articles 23, 24.
6. Articles 25, 28.
7. Articles 29, 30.
8. Article 32.
9. Shukla V. N. Constitution of India (10th Ed) p. 42.
LEGAL RIGHTS & DUTIES . 397
must be a co-relative right. According to Austin, duties may be both, relative
and absolute. By relative duties he means such duties which have
corresponding rights. Relative duties are owed to a person other than the one
compensation.(damages) or restitution to the injured party.
The co-relative of legal right is legal duty. These pairs of co-relative
terms express, the same State of facts viewed from opposite side. For instance,
if the State can compel 'B' to carry out, either by an overt act or forbearance,
the wishes of 'A', it may be said that 'A' has a legal ·right, or that 'B' is under·
a legal duty. . ·
--
Every right, whether moral or legal, implies the active or passive
furtherance by others of the wishes of the party having the right. Wherever
any one is entitled to such furtherance on the part of others, such furtherance on
their part is said to be their 'duty'. Where it will be conferred by the power of
the State, by which they are amenable, it is their. 'legal duty'.
But where such furtherance is merely expected by the public opinion of the
· society in which they live it is called their 'moral duty'.
There are, however, certain duties which are absolute. That is, those
duties do not have a corresponding right. The breach of an absolute duty is
generally treated as an offence for which wrongdoer is punished. Austin
mentions four kinds of absolute.duties:-
(1) Self-regarding duties such as a duty not to commit suicide or not to
consume drugs or liquor etc.
(2) Duties towards indeterminate persons or public at large, e.g., a duty
not to commit a nuisance.
(3) Duties to those who are not human beings such as duty towards God
or animals, birds etc.
(4) A duty towards the sovereign or the State.
Although Dr. Allen has supported the Austinian view regarding absolute
duties but writers including Salmond, Pollock, Keeton and Paton have not
accepted the doctrine of absolute duties. Salmond firmly holds that no duty
can be absolute under any circumstances. According to him, it is misleading
to say that a duty towards State is absolute. Paton aiso believes that
rights and duties are inseparable and the existence of one without the other
is as impossible as that of a son without a father 1 or a husband without a
wife. Keeton also supports the view that rights and duties are co-relative
terms.
Right in the strict sense is an i~terest which the law protects by imposing
duties with regard to them upon other persons. It is an affirmative control over
another. Holland rightly defines, "right in this sense is a capacity residing in
1. Paton G. W. : A Text Book of Jurisprudence, (2nd ed.) p. 219.

398 JURISPRUDENCE AND LEGA THEORY
1i
one persoit of controlling with the ai,sent and assistance of the State, actions of
others".
Legal Right .and other related conr.epts
According to Salmond, the term 'legal right and duty' when used in their
wider sense may also mean liberty, power and i~munity. It is therefore,
necessary to discuss these concepts in relation to legal rights.
1. The concept of duty.-Duty is a specie of obligation. Duties are.
prescriptions of conduct towards the achievement of some end-moral, social or
other. TI1e ends may also determine the form of the prescription. According to
Professor Fuller, the main attributes of duty may briefly be stated as follows :
(1) It should be general, though li~ited exceptions are permissible.
(2) It should be promulgated.
(3) It should be prospective and intelligible.
( 4) It must be consistent in itself. ·
( 5) It should be capable of fulfilment and congent with inner morality.
Since duties are only prescribed behaviour, it follows that they express
patterns of conduct to which people are expected to conform.
2. Right and Lib~rty.-Right in another sense may mean the benefit
which a person derives from the absence oflegalduty. In this sense it may be
called liberty. Liberty or privilege denotes the absence of restraint: Liberty· of a
person consists in his freedom to do or not to do an act as he pleases. Liberty or
privilege is freedom of a person to act or refrain from acting in a manner he likes
without being prevented by law, but he has no right and he is not at liberty to
interfere with the rights of others. Thus a person is at liberty to express his
opinion freely on public affairs but he is not at liberty to defame others.
Austin's view.-According to Austin, liberty and right are synonymous. He
says, "the liberty of acting according to one's wish would be illusory if it were
not protected from obstruction". He argues that when the law affords such
protection, it is in effect conferring a right, and therefore, right and liberty are
synonymous. In liberty the leading idea is absence of restraint whereas in case
of right protection of it is the predominant consideration.
Salmorid's criticism against Austin's view.-There is one thing common in
liberty and right, that both confer benefit upon a person by the law. It is,
however, erroneous to think that both are synonymous. Liberty arises from the
absence of duties imposed upon a person. A right, on the other hand, enjoins on
another the duty of doing or forbearing from doing something for the benefit of
person entitled to the right. To quote Salmond, he says, "rights are what others
are to do for me; liberties are what I may do for myself". For instance, a person
is at liberty to carry on business under his trade-mark but others should refrain
LEGAL RIGHTS & DUTIES 399
from ~arrying on business with that person's trade mark because in that case
that person's right would be infringed.
Salmond considers absence of right as co-relative of liberty. For instance,
if B commits a trespass on A's land, then A is at liberty to eject 'B' from his land
but B has no right that h~ should not be ejected .from A's land.
With regard to limitation on liberty, it may be stated that liberty ends
where duty begins and vice versa. ·
There is no suitable co-relative of liberty as it would be contradictory of
right. Hohfeld, however, suggests that co-relative of liberty is "no right".
3. Power and Subjection.-Power may be defined as, "an ability conferred
upon a person by the law to alter, by his own will_directed to that end, the
rights, duties, liabilities or other legal relations, either of himself or of o~her
persons".1 Examples are- right to make a will; power of sale vested m a
mortgagee; a power to sue and to prosecute; landlord's right to re-entry etc.
Salmond holds that powers are of two kinds, namely, Public or Private.
Public powers are those which are vested in a person as an agent or
instrument of the State. They include various forms of legislative, judicial and
ex;ecutive autho.rities. Private powers, on the other hand, are those which are
vested in persons to be exercised for their own purpose, and not as agents of the
State.
It must be stated that power is either the ability to determine_ the legal
relations of other persons, or ability to determine one's own. The first of these,
i.e., power over other persons is sometimes called authority, and the second,
power over oneself is usually termed as capacity.
It is significant to note that a power is not the sani.e thing as a right nor is
it identical with liberty. For instance, I have a right to make a will does not
mean that in doing so I do no wrong. It does not mean that I will make a will
innocently; it means that I can make a will effectively.
Power is usually combined with liberty to e;~ercise it, not merely in an
effectual manner but also in a rightful manner. This is, however, not always
necessarily the case. For instance, when a thief sells stolen property in the
market, the sale is wrongful because the thief has no right to do it but it shall
nevertheless be effectual and pass a good title to an innocent purchaser who
purchases it for value and without notice. In this case, there is power without
co-existing liberty. 2
The co-relative of ·power is liability or subjection. For example, the State
. has power to punish the offenders, that means the offenders are subject to
exercise of that power by the State. Again, a mortgagee has power to sell the
1. Fitzgerald P.J. : Salmond on Jurisprudence, (12th ed) p. 229.
2. Fitzgerald P.J. : Salmond on Jurisprudence, (12th ed) p. 229.
 LEGAL RIGHTS & DUTIES 401

'400
JURISPRUDENCEANDLEGA~THEORY Salmond has preferred to use the word 'right' in place of 'daim'. But this
I
may lead to some confusion because the wo_rd 'claim' indicates what one can
. ·
mortgage · rty, that means the mortgagor
d prope . i;·subject to the exercise
. of this force another to do or to refrain from doing. The person who can so force is said
power of the mortgagee. .. . to have a claim and the person who can be made to act or forbear is said to have
· ·t and Disability.-Exemption from the power of another is a ,duty. Therefore; the word 'claim' seems to be more suited than the word
4 1
·... mmu~1t ~. The co-relative of immunity is disability. The concept of 'right' in 'the above Table.
ca11e d munum Y . h b h· h
immunity is based on the latin maxim nemo dat quod non a et w .1c . means The vertical arrows in these Tables connect jural co-relatives. Thus the co-
disability on the part of persons in general to transfer property which they do relative of right -is dt1ty and co-relative of liberty is 'No right'. Likewise, the
not themselves own. co-relative of power is liability and that of immunity is disability.
Just as a power is a legal ability to change legal relations, anh im~ity ~~ The horizontal arrows connect the contradictories. Thus liberty or (No
an exem tion from having a given legal relation ch~nged bf an?t er.. e ng duty) is the absence of right in another. Similarly, immunity is the absence of
f p · not to be sued in a foreign court, is neither a nght m a stnct sense,
o a ~~vere1gn ower It is in fact an exemption or immunity from legal pow~r in another .1 _
nor 1 .de~ty n_onraa £~reign .court' The fo;eign courts are correspondingly under a . . ,The ·c1bove classification as given by Hohfeld 2 in the Tabular form is
procee mgs i · . . 1
disability in the matter of legal proceedings agamst a sovereign: . sig1ficanfbecause·it shows that a legal relationship does not give rise to only
The relation between immunity and power is more. or le.ss similar to that of one tight and one duty but also gives rise to concepts such as claim, immunity,
liberty to right. Liberty arises from the absence of a nght m another and t~e power etc., which should also be taken into consideration.
absence of a duty in one-self. Immunity arises from the absence of a power m Julius Stone has, however, criticised Hohfeld's jural postulates on the
another and in absence of liability in one-self. ground that there is no justification for a co-relative of a legal right. Moreover,
On the basis of the analysis of the conceptions of right, Hberty, power and . it is also not necessary that each of these concepts should have a co-relative.
immunity, Salmond suggests that:- Roscoe Pound has also rejected Hohfeld's classification of jural postulates. 3
(1) Right is that which other persons ought to do in my behalf; Despite this criticism, the ·importance of Hohfeldian analysis of legal
(2) Liberty is that which I may do without the interference of law; rights still cc;mtinues to influence the jurists for it allows the momentary
dispfa.cement of abstract legal concepts and matrics so as to enable better
(3) Power is-that which I can do effectively against others;
understanding of operation of law in its sociological perspective.
(4) Immunity is that which other persons cannot do effectively in
respect of me. Classification of Legal Rights
Legal rights have been classified by various jurists in different ·ways.
Hohfeld's Table of Rights and its co-relatives : Rights may generally be classified under the following heads : -
f , · ht' and its legal co-relatives can be better understood by
The concept o ng . l t· h · b tween these 1. Perfect and Imperfect Rights.-According to Salmond, a perfect right is
the help of Hohfeld 's Tables representing the mter-re a ions ip e
one which corresponds to a perfect duty. It is not only recognised by law but also
jural concepts :- enforced by it. An imperfect right, on the other hand, is one which though
(Right)

(claim)l( X , (Li~~rty) or

lf~~•~i;) Powe•ix'r . Immunity

recognised, is not enforceable by law. In other words, a perfect right is one in
respect of which an action can be successfully brought in a court of law, and the
decree of the court, if necessary, enforced against the defaulting judgment-
debtor. But an imp~rfect right is incapable of legal enforcement. 4 A time-barred
debt is a typical exa;mple of imperfect right. In India, the creditor or the holder
,/"' (No-Right) (Liability) ( \ Disability of a promissory note can sue upon it within three years b:>m the date of debt
(Duty) ( ·} (No claim) or or becoming payable. After the expiry of this time, the debt is barred by time. The
(Subjection) (Absence of power)
1. Fitzgerald P.J. : Salmond on Jurisprudence, (12th ed) p. 232-33.
2. Wesley N. Hohfeld: Fundamental legal concepts as Applied in Judicial Reasoning Yale Law
In the above Tables, the four terms in the first rectangle _are related to School (1923).
each other in more or 'ess the same way as the four terms m the second 3. Roscoe Pound: Legal Rights, {1915) p. 26.
4. Allen v . Waters & Co., (1935) 1 KB 200.
rectangle.
l. See Hohfield's Scheme of Jural Postulates, (Infra) .

JURISPRUDENCE AND LEGAL THEORY
402
limitation, however, does not extinguish the ~ebt. 111.at ·is, for certain purposes
creditor's rights are still recognised though 'the time-barred debt cannot b~
recovered through a court of law. Firstly, if the debtor pays t~e money_ afte~ it
has become time-barred, he cannot later sue to recover it saymg th~t it bemg
barred by time, waa without consideration. Secondly, a fresh p~om1se to pay
the debt in writing, can be enforced and the time-barred debt 1s treated ~s a
valid considerati9n for such fresh promise. ~ir?ly, if th~ debt_or has gi~en
some security, he cannot take back the thin~s given as _secunty, without par:mg
1
the debt to the creditor. Thus in case of an imperfect nght, though rem~dy ~ a
court of law is denied but the right itself does not come to an end. Likewise,
part-payment of a time-barred debt converts the imperfect right into a perfect
right.
The rights of the subjects against the State_ ~re als~ sometimes class!fied
as imperfect rights because of their unenforceab1hty. It 1~, however, submit!ed
that this view seems to be against the accepted .legal not10ns, the reason bemg
that an ordinary imperfect right is unenforceable because some rule of la~
declares. it to be so whereas rights against the State are unenforceable not m
this legal sense, but in the sense that the strength of the law is none other than
the strength of the State itself.
An imperfect right can sometimes be converted into a ~erfect ~ght._Thus,
where a bond · is unstamped, it creates an imperfect right which 1s not ·
enforceable by law, But on payment of prescribed penalty, it becomes a perfect
right enforceable by law. . . 4: Rights in rem or in personam.-These are also called rights in rem and
2. Positive al\d Negative Rights.-A right is distin~ished _as po_siti~e or
negative according to the nature of t~e co-relative ~uty it carries with it._ In .
case of a positive right, the person subject to the du!f 1s bound t~ do somet~mg
whereas in case of negative right, others are restramed from domg ~om~thm~.
The positive right is a right to be positively be~efited but a ~egattve nght 1s
merely a right, not to be harmed. A right to receive compensation or dam~g.es,
or a creditor's right to recover money from the debtor are examples of positive
right. As against this, right of ownership is a negative_ right for it i~pose~ on
others a negative duty of non-interference with one's ng~t ~wnersh1p. A n~ht
to reputation is again a negative right in the sense that 1t imposes a negative
duty upon others not to interfere with it.
The distinction between positive and negative right can be summarised as.
follows:-
(1) A positive right corresponds to a positive duty whereas a negative
right corresponds to a negdtive duty.
(2) A positive right involves a positive act while a negative right
involves some kind of forbearance or not doing.
(3) A positive right entitles the owner of it to an ~lter~tion of the
present position to his advantage whereas a negative nght seeks to
maintli\in the present position of things.
LEGAL RIGHTS & DUTIES 403
( 4) ~ -positive right aims at some positive benefit but a negative right
aims at not to be harmed. · ·
(5) A positive right requires ari active involvement of others but a
negative right requires only passive acquiescence of other persons.
(6) A positive right rec~ives_ somet~g more than what one already
has whereas a negative nght seeks to retain what one already has.
(7) A J?Ositive ri~ht h~s a _m~diate and indirect relation to the object
while a negative right 1s rmmediately related to the object.
(8) Right to the money in one's debtor's pocket is an illustration of a
positive right while the money in one's own pocket is an example of
a negative right.
3. _Antecedent ~nd Reme.d ial Rights.-The rights dealt with by
substan!1ve la~ ~ay e1the~ be antecedent or remedial. An antecedent right is
one which exists irrespective of any wrong having been committed. It is an
exce_ptional advantage grante~ to the person who is clothed with this right.
For mstance, purchaser of certam goods has an antecedent right over the goods
so purchased. On the other hand, a right which accrues when an antecedent
~ight is ~iolated is called a remedial right. Generally, it involve~
compensation by way of relief for the violation of an antecedent right. _
Antecedent right may either be a right in rem or a right in perosnam.
rights zn personam. _The d~stinct_ion between real and personal rights is closely
~onnected but not_mdenhcal with that between negative and positive duties. It
1s _bas d on the difference in the incidence of co-relative duties. A real right
7
(right zn rem_) corre~pon~s to a duty imposed upon persons in general whereas a
person~! ng~t ~r~ght zn personam) corresponds to a duty imposed upon
determinate mdiv1_duals. In other words, a real right is available against the
world at large w~il~ a :personal right is available against a particular person
or persons. The d1stmchon between real and personal right is well illustrated
~y an_ exa~ple. A person's right to the peaceable occupation and ti.Se of his land
~s a right z~ re~z because all the world is under a duty towards him not to
mterfer~ with it. But if a person grant a lease of the land to a tenant, his right
to receive rent from the tenant is a right in personam,l for it is available
exclusively against the tenant and ·none else.
It is signi_ficant to note that almost all real rights are negative and most of
t~e personal nghts are positive though in a few exceptional cases a personal
ng~t may also be negative. For instance, if I have purchased the goodwill of a
business from a trader, he is restrained from competing with me although all
other traders can compete with me. My right of exemption from competition
1. These terms ar? derive_d fro~ Roman law and called jus in rem and jus in ,,ersonam. The
~onner means nght agamst or m respect of a thing whereas the latter means right against or
m respect of a person.
404 JURISPRUDENCE AND LEGAL THEORY
from that particular trade whose goodwil~ I have purchased under an
. agreement is my personal right which is negative in nature. _
The distinction between right in 'rem and right in personam may be
explained by an_ illustration: The right of a ~ersort after signing·the contract for
purchase of ·land is a right in personam _against the seller that the seller s~all
execute a sale deed in that person's favour and transfer the pr<>perty to .h im.
After the execution of sale deed, the right of that person .(i~e .. pUl'chaser)
becomes a right in rem available against the whole ~orld that nobody shall
interfere with his ownership in that land. .
Classification of antecedent rights in rem.-The antecedent rights in rem
which are more connected with the control which the holder of right is
allowed to exercise over the actions of others, and with the advantages which
he is allowed to derive from the world in which he lives may be related to :
1. Right to personal safety and freedom;
2. Right to _control one's family and dependents or marital right;
3. Right to reputation;
4. Right to free exercise of one's profession, calling etc. ;
5. Right to possession and ownership;
6. Right to immunity from damage by fraud.1
s. Proprietary and Personal Rights.-The aggregate of a · man's
proprietary rights constitutes his estate, his assets and his property. They
have some economic or monetary significance and are elements of wealth. For
instance, money in one's pocket or in bank, rightto debt, land, houses etc., ~e
proprietary rights. The personal rights, on the _other hand, are ·elements m
one's well-being. They have no monetary value whatsoever. Examples _of
personal right are right of reputation, pe~son~l liberty, fre:dom from bodtl_Y
harm, right of a husband in respect of his wife or parent m respect of their
children etc. · across adjoining land or prohibiting the neighbour from building a
The distinction between proprietary and personal rights can be
summarised as follows : -
(1) Proprietary rights relate to estate of ~ person which includes aU W.s
assets and property in any form. The personal nghts, on the other hand, pertam
to the sta tus 2 of a person.
(2) Proprietary rights are elements of a person's wealth whereas personal
rights are elements of his well-being.
(3) Proprietary rights are alienable whil~ the personal righ~s are not
alienable. The former are inheritable where~ 3 the latter are not hentable.
1. Holland T.E.: Elements of Jurispntdence (13th Ed. 2010) p. 170.
2. 'Status' may be defined as an aggregate of ~ghts and duties which_ law attaches to a person,
as one of a class, which are incapable of bemg changed at the desire of persons affected by
them .
LEGAL RIGHTS &c DUTIES 405
(4) Proprietary rights are more static as compared with the personal
rights.
6. Rights in re propria and rights in re aliena.-Literally speaking, ·right
in re propria means right over one's own property and right in re aliena means
right over the property of someone else. The latter may also be called as
encumbrances using the term in its widest sense..
The most absolute power which .the law gives over a thing is called the
right of dominium. This is a real right in a "thing which is one's_ own, and is
called right in re propria. But a man may have rights in property less than full
ownership, the dominium being, in fact, ·vested in another. Such .rights are
called rights in .aliena.
According to Salmond, "a right in re aliena is one which limits or
, derogates from some more general right belonging to some other person in respect
of same subject-matter. All other rights which are not thus limited are juria in
re propria" .1 For instance, if a person mortgages his house, he has created an
encumbrance by dividing his proprietary right in the house. The mortgagee is ,
temporarily the owner of the house. The mortgagor has the right to redeem the
mortgage. This right which is now completely detached and separated from
the mortgagor's complete ownership is the right in re aliena because
mortgagor's complete 9wnership is encumbered due to mortgage.
Salmond refers to four kinds of encumbrances, namely, : (i) lease, (ii)
servitude, (iii) security, and (iv) trust : -
( i) A lease is an encumbrance of property vested in one person by a right
to the possession and use of it vested in another person.
(ii} A servitude is a right to the limited use of a piece of land
unaccompanied either by the ownership or by possession of it. For
example, a right of way or a right_to the passage of light or water
house or structure in such a manner as to obstruct light or air to ones
house:
Salmond defines servitude as that form of encumbrance which consists in a
right to a limited use of a piece of land, without the possession of it, as
contrasted with a lease, which confers the right to possession. For example, an
easement right or a profit a prendre.
(iii) A security is an encumbrance vested in a creditor over the property
of his debtor for the purpose of securing the recovery of the debt,
e.g., a mortgage or a lien.
(iv) A trust is an encumbrance in which the ownership of property is
limited by an equitable obligation to deal with it for the benefit of
someone else. The owner of the encumbered property is called the
1. Fitzgerald P.J. : Salmond on furisprudence, (12th ed) p. 241.

406 JURISPRUDENCE AND LEGJ\L THEORY
I
\
trustee and the owner of the encumbrance is the beneficiary of the
trust.
7. Principal and Accessory Rights.-The existence of principal rights is
independent of any other rights but accessory rights are ancillary lo principal
rights and have a beneficial effect on the principal right. For · example, if a
debt is secured by a mortgage, the recovery of debt is the principal right while
security is the accessory right. Likewise, if an owner of a piece of land has a
r~ght of way on the adjoining land, the ownership of the land is his principal
nght and right of way in the adjoining land is accessory right. The rent and
covenants of a lease are accessory to the lan~lord's ownership of the property.
8. Primary and Sanctioning Rights (Antecedent & Remedial Rights).-
Primary rights are also called the antecedent or substantive rights. Similarly,
sa~ctioning _rights are also called the remedial or adjectival rights. It may be
reiterated that sanctioning rights originate from some wrong, i.e., from
violation of another's right whereas primary rights have some source other
than wrongs. Salmond has pointed out that a primary right can either be a:
right in rem, e. g., 'one's right not to be assaulted or it may be a right in
personam, i.e., right of a promisee that the promiser should perform his part of
the contract. If the promiser commits a breach of the contract, promisee shall
have sanctioning right to claim damages. Sanctioning rights are in personam
bcause they result from violations by specific persons. A right to sue a court of
law is an illustration of a sanctioning right or a remedial right.
Violation or breach of sanctioning right may result in penal action, i.e.,
imposition of a pecuniary penalty upon the defendant for the wrong which he
has c?mmitted, or restitution and penal redress, which means grant of
pecuniary compensation to the plaintiff in respect of damages suffered by him
from the wrongful act of the defendant.
It must, however, be stated the term "penal action" used in the context of
sanctioning right does not mean criminal prosecution, it implies civil action ·in
which the defendant is made to pay compensation by way of penalty. Thus it is
purely a civil proceeding against the defendant in which he is held liable for
breach of sanctioning right. ·
In penal redress or restitution, the defendant has to restore all the benefits
derived from his wrongful conduct in addition to a full redress for the loss
suffered by the plaintiff.
. 9. Le~al a~d- Equitable Right.-The distinction between legal and
eqmtabl~ nght on?mates from the distinction between law and equity. Prior to
the pas~mg of Jud1ca~re Act, 1873, there were two distinct co-ordinate systems
of la": m Englan_d wluch were called the common law and the equity law. At
that time, legal nghts were recognised by the common law Courts whereas the
equitable rights were recognised by the Court of Chancery which was a Court of
Equity. T~.:.., ..istinction was, however, abolished by the fusion of the two
LEGAL RIGHfS & DUTIES 407
Courts by the Judicature Act, 1873 but the existence of common law and equity as
two distinct branches of law still persists in England. The methods of their
creation and disposition are, however, different. For example, a legal mortgage
must be created· by a deed but an equitable mortgage may be created by a mere
written agreement or by the deposit of title deeds.
The general principle regarding equitable rights is that when there are
two consistent equitable rights claimed by. different persons over the same
thing, the first in time shall prevail. But where there is a conflict between a
legal right and an equitable right, the legal right shall take precedence . over
equitable right even if it is subsequent to the equitable right in origin, but the
owner of the legal right must have acquired it for value and without notice of
the prior equity. This principle finds expression in the maxim, 'where there are
equal equities, the law shall prevail.'
The Indian law, however, does not recognise the distinction between law
and equity since th~re is neither separate equity law nor separate equity courts .
in India. But the principle~ of equity have found expression in various statutory
enactments in India. In other words, where there is no specific law or usage on a
subject, the case shall be decided by applying the principle of 'justice, equity
and good conscience' which implies application of English law, so far as it is
applicable to Indian conditions and circumstances.
The Privy Council, in Chatra Kumari Devi v . Mohan Bikram 1 observed
that the Indian law does not recognise legal and equitable estates. Therefore,
there can be only one owner and where the property is vested in a trustee, the
owner must be trustee.
10. Vested and Contingent Rights.-A vested right accrues when all the
facts have occurred which must by law occur in order that a person in question
would have the right. In case of contingent right, only some of the events
necessary to vest the right in the contingent owner have happened.
A vested right creates an immediate interest. It is transferable and
heritable. A contingent right does not create an immediate interest and it can be
defeated when the required facts have not occurred.
Paton has commented that when all the investitive facts which are
necessary to create the right have occurred, the right is vested; when part of
the investitive facts have occurred, the right is contigent until th,e happening
of all the facts on which the title depends. 2
The distinction between vested and contingent rights may be illustrated
thus-If a transfer of certain property is acquired by a valid deed of transfer,
the transferee acquires vestec! right in the property. However, if a property is
transferred to a person upon a condition that he shall be entitled to possession
thereof when he attains the age of 21, the right so acquired is a contingent
1. (1931) 58 rA. 279; see also Tagore v. Tagore, (1872) I.A. Suppl. Vol. 57.
2. Paton G.W. : Jurisprudence, (3rd ed., 1964), pp. 269-270.
408 JURISPRUDENCE AND LEG~L TIIBORY LEGAL RIGI-ITS & DUTIES 409

'
right. This contingent right shall be converted futo vested right as soon as the :
transferee attains the age of 21. A right to share of an unborn child in a
to him. For instance, if A contracts to seUhis land to B, then B acquires a right
against A to have the land transferred to .himself. Here right of B is called the
partition suit is a contingent right which shall covert into a vested right on his right ad rem. A right ad rem is always a right in personcim in nature.
being born alive. ·
Sir Henry Maine has pointed out tha:t legal rights and duties have
11. Public and Private Rights.-A very radical division of Rights is based special significance in jurisprudence ~ause the status of a person is determined
upon the broad distinction between the public or private character of the person on the _basis of his rights and duties. According to him, "status is a legal
or persons with whom the Right -i s connected. By 'public person', is meant either condition in which rights and duties are imposed by operation of law as distinct
the 'State', or the sovereign part of it, or a body or individual holding from a condition in which they are acquired by the person's own voluntary
delegated authority under it. acts": Status being conferred on a person by law, he cannot be deprived of it by ·
The term 'private person' denotesj an individual, or collection of other persons. I . .
individuals however large, who or each one of whom, is of course, a unit of the According to Dicey, infancy, guardianship, legitimacy, husband-wife
State, but in no sense, represents_ it, even for a special purpose. relationship, •.insane and curator, . corporation etc. are some examples of legal
From the aforesaid definition, it follows that a right vested on the State status. ·
is called a 'public right'. This distinction further be illustrated by a simple Finally, it may be stated that different kinds of rights and duties should
example, an assault is a breach of private right of the person assaulted but be analysed in the context of the law under which they are created and
avoiding military service (where it is mandatory) is an injury to the State and protected. The person claiming the right must establish his title to it. It is only
therefore a violation of a public right. The State enforces such right as a ~ue to the existence .of rights and duties that the concept of legal personality ·
representative of the subjects in public interest. A public right is possessed by -has evolved in jurisprudence because it is the only measure for regulating the
every member of the public. A private right, on the other hand, is concerned rights and duties of individuals in society. The dimension of a legal right
with only private individuals, that is, both the parties connected with it are varies because of varieties of juristic personality such as private individual,
private persons. · lunatic, aliens, converts, infants, artificial personalities like corporations,
As a corollary of public and private rights, there are public and private companies etc. The inquiry into the nature of juristic personality is therefore
wrongs. The former are a breach and violation of public rights and duties which supplementary to the determination of legal right. For instance special status is
affect the community as a whole, namely, the State. They are called 'crimes'. generally attributed to infants, minors, lunatics in determination of their legal
The private wrongs are an infringement of private of civil rights belonging t~ ·right.
individuals. They are called civil injuries or torts.
Salmond, however, pointed out that all public wrongs are not crime, e.g.,
the breach of a public trust is a public wrong but it is redressible like a civil
injury or a private wrong. ·
000
12. Servient and Dominent Rights.-A servient right is one which is
subject to an encumbrance while the encumbrance which derogates from it, may
be callE:d dominant.
The land or immovable property for the beneficial enjoyment of which the
right exists is called the dominant heritage and the owner or occupier thereof,
is called the dominant owner. The land or immovable property on which the
liability is imposed is called the servient heritage and the owner or occupier
thereof, the servient owner. For example, if 'A' as the owner of a certain house
has a right of way over B's land, A's house is the dominant herit~ge and A is
the dominant owner and B's house is the servient heritage and Bis the sentient
owner. Correspondingly, A's right is dominant right whereas B's is servierii:

/us ad rem
A right which originated from another right is called jus ad rem. That is
to sa~', ~~- person of inherence has a right to have some other right transferred 1. Niboyat v. Niboyat, (1878) LR 4 D; see also In Re Luck's Settlement Trusts (1940) 1 Ch. D. 864.
 l POSSESSION
\
i
18
POSSESSION
There is no theory in the field of law so difficult as that of possession. The
complexity of the concept arises because of the innumerable legal consequences
flowing from the acquisition and loss of possession.
Possession, for example, is prima facie evidence of ownership. Usually the
presumption is that the possessor of a thing is the owner of it and the other
claimants to have it must prove their title. Further, the finder of a thing has a
good title to it if he is in possession of that thing. Even a person who wrongfully
possesses a property, has a good title against the world at large except the true
.ow~er.1 Again, a person derives a good title from a possessor even though the
possessor himself has none; just as when a person obtains a bank-note from a
thief. It may, however, be stated that if the person who obtains the bank-note
knowing that it is a stolen one, in that case, he commits an offence of receiving
stolen property under Section 410 of the Indian Penal Code which is punishable
under Section 411 of the said Code. Possession is an important condition in the
acquisition of ownership. Law relating to pledge provides that the possession
of thing pledged constitutes creditor's security without any presumption of
ownership.
Nature of Possession
Possession is the most basic reiation between man and things. 2 Possession
of material things is essential to life because the existence of human life and
human society would be rather impossible without the consumption and use of
material things. Many important legal consequences flow from the acquisition
and loss of possession. Besides being a prima-facie evidence of ownership, it is
also one of the modes of transferring ownership. Possession is said to be nine out
of ten points of law meaning thereby that it is an evidence of ownership and he
who interferes with the possession of another, must show either title or better
possessory right. For example, a thief who steals my watch has a possession
which the law will protect against everyone except myself or some person
acting on my behalf. Not only that, dispossessing (ejecting) a person from one's
own land and re-entering forcibly is a wrongful act though the possession of the
person turns out to be wrongful. The defendant cannot take the defence that some
other person than the person dispossessed, had a title to that land. 3 The
1. Pollock: Jimsprudence & Legal Essays, (ed. Goe,dhart) p . 98.
2. Salmond on Jurisprudettce, (12th ed.) p. 265.
3. Jafaries v. Great Westel"n Rly., 5 E & B 802 (802).
( 410)
411
remedy to recover possession is called 'possessory remedy', as provided by the
statutes. 1
Salmond observed that "the concept of possession is as difficult to define
as it is essential to protect." According to him, it is the most basic relationship
between men and things. The possessing of a material object can be said to be
continuing exercise of a claim to the exclusive use of such object. Thus, exclusive
use and actual exercise of actual control and claim are two main requisites of
possession.
Paton, however, expressed a view that English Judges have been reluctant
to lay down any logical and exhaustive definition of possession and preferred
to dispose of particular cases so as to ensure justice in every case.
As stated by Federick Pollock, a man is said to be in possession of a thing
of which he has the apparent control or from the use of which he has
apparent power of excluding others. 2
The Supreme Court of India has elaborately explained the concept of
possession in B: Gangadhar v. Ramalingam, 3 as follow : -
"Possession is the objective realisation of ownership. It is defacto
excercise of claim to certain property and defacto counterpart of ownership.
Possession of a right is the defacto relation continuing exercise and
enjoyment as opposed to dejure relation of ownership. Possession is the
defacto excercise of a claim to certain property. It is the external form in
which claims normally manifest themselves. Possession is in fact what
ownership in right, enforceable at law to or over the thing."
Possession with title in the absence of evidence to the contrary would
constitute ownership over the thing possessed. But pofisession without title
would not confer ownership. Thus possession is an important element of
ownership and in fact it is a means of acquiring ownership.
According to Henry Maine, possession means that contact with an object
whic_l~ involves the exclusion of other persons from the enjoyment of it.
Possession denotes physical contact resumable at will. In other words, it does
not signify mere physical detention but physical detention coupled with the
intention to hold the thing detained as one's own. 4
Possession Under Roman Law
Under Roman Law, the concept of possession was used in two different
senses. To be in possession of a thing was different from having legal possession
over it. The former denoted that a person simply has physical control over the
thing and it was called corpus possessionis-while the latter meant having
exclusive control over a thing which the Romans called as civilis possessionis,
1. Section 6 of the Specific Relief Act, 1963.
2. Pollock: Possession in Common Law p . 12.
3. (1995) s sec 238.
4. Maine Henry : Ancient Law, p. 47.

412 JURISPRUDENCE AND LEGA~ 'ffiEORY
\ ownership, continuous long Possession is deemed sufficient to confer
i.e., legal possession. In Roman Law, certain ikportant consequences were
attached to civilis possessionis. According to Twelve Tables, a continued
possession of an immovable property for a long peri9(1 which was not detention,
gave to the possessor ownership or dominium over the property. The property
disputes were mostly decided on the basis of legal possession only and the courts
thought it unnecessary to decide the question of owne~ship.
A person was deemed to be in legal possession of a thmg when not only
thing was in his physical control or he had custody over it, but he also had the
power to exclude others from interference in his possession. This mental element
to hold possession and control over a thing to the exclusion of all others was
called 'animus'. Thus possession to be legal,. required two essential elements i.e.,
corpus and animus.
Roman law distinguished 'detention' from custody. In case of detention, a
person was to have real possession and control over a thing though he may or
may not have ownership of it. The 'custody' en the other hand, involved
possession and control without ownership. However, the English law did not
recognise this distinction.
Under the Roman law, a person in possession of a thing had two
advantages, namely, (1) he had a right to protection by the Praetor's interdicts
which was called as possessory interdicts; and (2) the possessor could acquire
ownership after the expiry of a prescribed period.
Possession Under the English Law
The importance of possession has equally been recognised in English law
also. The term is commonly used in both, civil as well as the criminal law. In
civil law, namely, the law of torts, contract, property, specific relief etc. many
wrongs are defined in terms of possession. For instance, trespass is a wrong
relating to possession of land or goods, conversion is wrong affecting possessory
right in goods and is known as trover. In law of crimes, dishonestly taking away
any movable property out of the possession of any person without that person's
consent constitutes the offence of theft. 1 The English _law recognises that
acquisition or loss of possession results into many important legal consequences.
Possession is given protection under the law for varied reasons.
According to Dias, posession has three main aspects, namely : -
Firstly, the relation between a person and a thing is act;
Secondly, the advantages attached by law to that relation is a matter of
law; and
Thirdly, these advantages are also attributed to a person when certain
other facts exist. What they are in a given situation is a matter of law.
Why Law Protects Possession?
1~ The principle as incorporated in Section 110 of the Indian Evidence
Act makes it dear that possession being the prima facie evidence of
1. Section 378, IPC. (In English law 'theft' is called 'larceny').
POSSESSION 413
ownersnip to the person in possession. In other words, the person in
possession of a thing is dee_m ed to be the owner of it unless someone
·else proves a better title than him.
. Section 1l() of the Indian Evidence Act reads as under-
"110.. ~~r4~!l _ Pro~fi~s
of, !o. ownership- . When the question . is whether .
arty pel'S0R :i s:~ ,ohinytfrlng:- of which he is shown to be irt possession, the
burden of pro~ng that he is not the ·owner is on the person who affirms that he
is not the owner,/' ··
2 . . Po~§~ssio~ provides a grotinci for pos;essory remedies which protect
the right of the person iri. .possession. In other words, long ad verse
possession confers title even to property which originally belonged
to another.
3. Possession is deemed as one of the essential conditions for acquiring
ownership and it is prima facie evidence of ownership;
4. Transfer ·of possession is one of the chief ·modes .of transferring
ownership.
5. The first possession of a thing which belongs to no one, res nullius,
confers a good title of right over that thing.
6. The possession of a thing by a creditor as a pledge serves as a good
security for repayment of the debt. ·
7. The ·difficulty of the proof of ownership also accounts for
legal
protection to possession because Jt is relatively easy to prove
possession·. Many writers, however, do not accept this reason.
8. A defendant is always at liberty to rebut this presumption by
proving that the better title is in himself. Again, a defendant who
interferes with the possession of the plaintiff is nat allowed to set
up the defence of just tertii, i.e., the title of a third person.
Meaning of the term 'Possession'
Jurists have defined possession acc;ording to their own notions. Pollock says
that having physical control over a thing constitutes possession.
According to Salmond,"the possession of a material object is the continuing
exercise of a claim to the exclusive use of if'. Thus possession involves two
things : (1) claim of exclusive user; and (2) conscious or actual exercise of this
claim i;e., physical control over · it. The former is mental element called as
animus possessionis and the latter is physical element known as the corpus
possidendi. ·
Zachariae observes that possession is a relation between a person and a
thing which indicates that the person has an intention to possess that thing
and has the capacity of disposing it of.
- - - - -- - - - - - -- - - - - - -- - - -- - - -- - ~ ----- -·-· ·--·
414 JlJRISPRUDENCE AND LEGAL THEORY
For Bentham, "to define possession is to \recall the image which presents
itself to the mind when it is nec~ssary to decid~ between two parties, which is
in possession of a thing and which is not."
Savigny, in this theory of possession says that the essence of corporeal
possession is to be found in the physical power of exclusion. The first is corpus,
i.e., physical power to possess a thing for the first time. TI1e second is, having
initially acquired the thing, there must be physical power to retain it.
Salmond, howeveri does not agree with Savigny's view that possessor must
have physical power to exclude alien interference. The true test according to
him is not the physical power of exclusion, but the "improbability of
interference by other,"
Ihering _is of the opinion that the element of animus possidendi is
altogether immaterial and cannot serve as a test of legal possession. The legal
possession therefore, does not depend on the nature of the intention but the
manner or character ifi which the c!aim to possession is made. It is submitted
that if furing's theory ()f possession is accepted, it would provide no solution to
the question as to why a thief can claim possession of the thing which he has
stolen but not the serv1:nt who is 1 in possession of his master's goods.
Justice Holmes writes, "to gain possession a man must stand in certain
physical relation to the object and to the rest of the world, and must have a
certain intent."
Federick Pollock pointed out that in common parlance a man is said to
possess or to be in possession of anything of which he has the apparent control,
or from the use of which he has the apparent power of excluding others.
Sir William Markby defines possession as "the determination to exercise
physical control over a thing on one's own behalf coupled with the capacity of
doing so."
Possession in Fact
The relation between a person and a thing which he possesses is called
possession in fact or defacto possession. It indicates physical control of a person
over a thing. For instahce, if a person has caged a parrot, he would be deemed to
have possession of it so long as the parrot is in the cage but as soon as the parrot
escapes from the cage or set free, he would lose possession over it. Certain points
regarding possession in fact must be carefully noted. They are :-
(1) There are CQrtain things over which a person cannot have physical
control, e.g., sun, moon, stars etc.
(2) The physica.l control over the object need not be continuous. For
instance, I possess my coat when I am wearing it, I still have possession of it
when I take it off and hang it on a peg when I go to sleep. The basic idea is that
I should be in a position to resume control over it in normal course whenever I so
1. Subbarao, G.C. : Jurisprudence & Legal Theory, (19th ed.) p. 195.
- .
POSSESSION -415
desire. In other words, physical control · may cqntinue even if a person
relinquishes actual control temporarily.
(3) In order to constitute possession in fact, merely having physical control
of a thing is not enough but it must be accompanied by capacity to exclude others
from the possession of it. However, some jurists do not consider.this element
necessary for possession. ·
(4) In order to ·determine the question of acquisition, abandonment or
termination of possession, the distinctive feature is the desire of the person
whether he desires to retain possession or not.
Possession in Law
Possession in law is also termed as de jure possession. It has already been
stated that the law protects possession for two obvious reasons, namely:-
(i) by conferring certain legal rights on the possessor;
(ii) by penalising the persons who interfere with the possession of a
person or by making him pay damages to the possessor. .
Whenever a person brings a suit for possession the first thing that the
Court ascertains is Hhether the plaintiff was forl\lerly in real possession ..of 1the
thing in dispute. It is true that in most of the cases actual or factual posse~ston
testifies legal possession yet there are many situations when a person does not
have possession in law although he is in actual possession of the object. ·
In the legal sense, possession is used as a relative term. The law is
generally not concerned with the question as to who has the best title, but it is
concerned as to which of the parties before it has a better title. A few decided
cases may be cited to illustrate this point further : -
Bridges v. Hawkesworth. 1-In this case it was decided by the Court that
the bundle of notes found on the floor of a shop passed into the possession of the
finder rather than the shop-keeper. The decision has been supported by Pollock
and Salmond. Pollock holds that since the shop-keeper (defendant) has no
corpus in the bundle of notes, he has no defacto control over it. Salmond has
taken the view that the shop-keeper has no animus for possession. The decision
has, however, been criticised by Goodhart and Glanville William. In their
opinion, this case was wrongly decided because the defendant shop-keeper had
a general animus and sufficient control requisite for legal possession as the notes
were physically found in the shop itself. 2
R. v. Riley. 3 (Lamb case).- In this case where the accused was driving his
herd of sheep, some of the prosecutor's sheep joined the herd and were driven
away by the accused along with his own. This mistake came to his notice after
he had sold the entire flock of sheep. The accused was held to have taken
1. (1851) 21 LJ QB 75.
2. Goodhart : Essays in Jurisprudence and Common Law, p. 83.
3. (1853) dears CC 149.
416 JURISPRUDENCE AND. LEGAL THEORY
possession of the sheep which belonged to the prosecutor and which he
unknowingly drov~ with his own flock to the market.
R. v. Harding.1-In the instant case, the accused was convicted of stealing
a rain-coat from a maid-servant who, as against the ·master, had mere custody
of the rain-coat and could herself have been convicted of la.rcency had she
dishonestly made-off with it. In the eyes of law, she had possession as against
the thief but not as against her employer. · , rings and th~efore, the ·company was entitled to have the rings and not the
R. v. Chissers.2-A person went in a shop and took some cloth to see. Then
he ran away with the cloth. He was convicted for larceny as the .Court held
that he had not obtained. the possession of the cloth merely by taking and it
was still in possession of the shopkeeper.
Ancona v. Rogers.3-In this case; the owner of house permitted a lady to
keep her luggage in some of his rooms. The lady sent her luggage through
someone who ·kept the luggage in the rooms shown by the owner and.locked the
same and handed over the keys to the lady. Deciding the dispute as to
possession of the luggage, the Exchequer Chamber ruled that though the
luggage was in realpossession of the owner of the house (rooms), but the lady
still had the legal possession of it. The keys of the locked room being with the
lady, it was sufficient evidence of the fact that she still had the physical
control over the luggage. The Court laid down the principle that, ·"a bailor who
had delivered the goods to a bailee to keep them on account of the bailor, may·
still treat the goods as being in his own possession, and can maintain an action
for trespass against a wrongdoer who interferes with them."
In Boynton-wood v. ·Trueman,4 it was held that handing over of the key to
the landlord to carry out repairs was not surrender of possession. Similarly, the
possession of a key to a room in a house was held not to give exclusive possession
amounting to sub-tenancy.5
R. v. Moore.6-In the instant case, a hank note was dropped in the shop of
accused who took it and converted it to his own use. The accused was convicted
of larceny since he was not in possession of the note until he actually discovered
it.
Elwas v. Brigg Gas Co.7-The defendant company took the land of the
plaintiff for erecting a gas plant. When the excavation work was on, the
defendant lessee company discovered a pre-historic boat six feet below the
surface of the land. The Court held that lessor had the first possession of the
boat and not the lessee.
1. (1929) 142 LT 583.
2. (1678) T Raymn 275.
3. (1876) 1 ExD 285 (292).
4. (1961) 177 Estates Gazette 191
5. Michel v. Volpe (1967) 202 Estates Gazette 213.
6. (1861) L & C 1.
7. (1886) 33 Ch D 562.
POSSESSION 417
South Staffor~shire Waterworks Co. v. Sharmanl (Gold rings case).-In
this case, the plaintiff company owned _a · pond upon their land. The
company employ«?d the defendant to dean the pond. During the cleaning
operations, the defendant found gold rings at the bottom of the pond. The Court
held that the company had the first possession of the rings by virtue of their
. being the owner ofthe pond and hence the defendant acquired no title in the
defendant.
Hannah v. Peel.2-The defendant purchased a house in 1938 but he never
occupied .it. In 1940 the house was requisitioned by the Government Royal
Artillary. The plaintiff, a soldier who was stationed in this house found a
brooch on the top of a windo~-frame covered by dust. The b~ooch was handed
over to the police who without attempting to discover the rightful owner
delivered it to the defendant who was the owner of the house-. The defendant
sold the brooch (jewel) for £ 66. The plaintiff (soldier) claimed the jewel or its
value as the finder of it. The defendant contended that he being the owner of
the house in which the brooch was found, was entitled to it as the owner of it.
The Court, however, ruled that the plaintiff was entitled to the brooch or its
value since his claim as finder prevailed over all others excepting the rightful
owner. The Court further observed that since the defendant was never in
possession of the house and had no knowledge of the brooch until it was brought
to his notice, he neither had de facto possession of it nor the animus of excluding
others, therefore, he had no right over the brooch.
The . decision has, however, been criticised by Professor Goodhart as
havingbeen wrongly decided.3
Hibbert v. Mc Kieman. 4 (Golf Ball case).-The case is also known as
'Golf-ball case'. In this case the balls lost on a golf-link and abandoned by the
owners were picked up by a trespasser on the golf-ground. On being sued for
wrongful possession of the golf-balls, the Court ruled that the abandoned balls
were held to have fallen into the possession of the secretary and members of
the club.
Salmond, however, holds a view that lost articles are deemed in law to
remain in possession of the loser. In his opinion, he loses legal possession of the
lost articles when he terminates his intention to retain his rights over them,
e.g., by throwing it away deliberately. In most cases it is a question of inference
from . the circumstances the loser had abandoned his legal possession. 5 For
instance, in R v. Edwards, 6 a householder who puts refuge in a dustbin has been
held to retain possession of it until it is collected.
1. (1896) 2 QB 44.
2. (1945) 1 KB 509.
3. For details see Achuthan Pillai's Principles of Torts (8th ed.) pp. 171-72.
4. (1948) 2 KB 142.
5. Fitzgerald P.J. : Salmond on Jurisprudence, (12th ed.) p. 278-279.
6. (1877) 18 Cox CC 384.
418 JURISPRUDENCE AND LEGAL THEORY
· Merry v. Green.1-In this case, a man· purchased a chest of drawers
(bureau) at an auction and took possession of it. Subsequently he discovered that
there was some money in the secret _drawer belonging to the vendor but he
appropriated the same. The Court held him guilty of larceny (theft) because
the purchaser was ignorant about the existence of money and the secret drawer
hence he cannot be said to have animus in regard to that money and could not
intend to possess the contents of the secret drawer until he found it.
Cartwright v. Green.2 (Desk Repairing case).-In this case, a bureau was
delivered to a carpenter for repairs. There was some money in the secret drawer
of the bureau. The carpenter found the money and appropriated it. He was held
guilty for larceny. It was held that the money was not in his posession until it
was found and therefore, the element of animus was lacking in the carpenter.
R. v. Ashwell.3-In this case, A gave and B received, a guinea in a dark
night. Both of them believed it to be a shilling. B subsequently discovered that
it was a guinea and he appropriated it. He was convicted for larceny. In
appeal, the Court was equally divided and therefore, the conviction was
allowed to stand. Justice Cave in this case observed, "a man has no possession of
that, of the existence of which he is unaware." This view found support in R. v.
Hudson 4 also wherein a person named Hudson received due to postal mistake a
letter containing a cheque from the Ministry of Food which was, in fact,
intended for some other person named Hudson who had supplied pigs to the
Food Department and to whom money was sent as the price of the pigs. Hudson
endorsed the cheque and got the money credited into his account. He was held
liable for theft for this deliberated action.
Armory v. Dalamirie.5 -(Chimney Cleaner's case).-In this case, the
plaintiff, a chimney cleaner, found a jewel while cleaning a chimney. He took
it to a goldsmith in order to ascertain its value. The goldsmith refused to return
it to him on the ground that he was not the true owner of that jewel. Held, that
the plaintiff had a better title to the jewel as against the goldsmith.
Salmond observes that possession is sometimes possible even without the
knowledge of the subject-matter and sometimes knowledge is _a necessary
requirement for possession. He explains this by a hypothetical illustration. If
A momentarily hands over his wallet to B, from whom it is stolen by C, who
then loses it on D's property, where it is found by E, the question who has the
right to possess or who has legal possession will depend on who brings actions
against whom.
As against all subsequent parties E's title will prevail because finder
acquires a good title. In an action between D and E, however, it would seem that
1. (1847) 7 M & W 623.
2. (1808) 7 RR 99.
3. (1885) 17 QBD 190.
4. (1943) 1 KB 458.
5. (1722) 1 Strange 505.
POSSESSION 419·
D will have a better_ title if he could prove that the article was found on
property from which he had _a general intention to exclude others.
As against C, neither D nor Ewould be said by law to have possession since
Chad a good right against all except the true owner. In an action by C against D
and E, the latter would not be allowed to plead jus tertii, that is, they
cannot argue that the wallet belonged to someone other than C and therefore,
C should not succeed against D and E. To allow this, would be to allow
anyone who could prove a defect in a possessor's title to dispossess him
of his goods. The plea of jus tertii, is allowed only to the true owner and/or his
agent.
Obviously, as against A or B, C will have no defence. B would recover the
wallet because he had actual possession of it. A could recover it from C because,
although it was in B's hands, he (i.e., A) had an immediate right to possess.
Therefore, A or B whosoever brings action against C, will be deemed to have
legal possession of the wallet as against 'C'.
It would therefore. be seen that in common law, possession is a relative
matter. The law is not normally concerned with the question which of the
parties before the Court h:1s a best right to possess; it is concerned with the
question as to which of the parties has the better right to possess. 1
From the persual of foregoing cases it can be inferred that possession in
law has been differently interpreted depending on the circumstances of the
case. In short, it can be said that possession may either be possession in fact or
possession in law. In Roman law possession in fact is called possessio naturalis
and possession in law is known as possessio civilis. In case of possession in law,
defecto possession is not necessary. In fact, it is a right which is recognised and
protected by law. According to Salmond, there may be three possibilities
regarding possession in fact and possession in law : -
1. Generally, in most cases both factual and legal possession exist
together.
2. In certain cases, a person has legal pos~ession of a thing but possession in
fact is with someone else. For example, in case of possession by the servant of
his master's property, though the servant has real and factual possession over
it but the legal possession is still that of the master. Likewise, in case of
bailment, though bailee has the real possession of the goods bailed but the
legal possession is that of the bailor.
3. English law also accepts the concept of const.uctive possession in cases
where something less than possession in one person is deemed possession in law,
and conversely where the actual possession of some other party is reduced to
something less than legal possession.2 For example, if A wrongfully takes
possession of B's watch, the law shall still afford its possessory remedies to
B on the ground that he did originally have the possession and therefore, he
1. Figzgerald P.J. : Salmond on furisprudence, (12th ed.) p. 279.
2. Figzgerald P.J.: Salmond on Jurisprudence, (12th ed.) p. 276.
.420 JURISPRUDENCE AND LEGAL THEORY
ought to have possession even now. The fact 1\hat the law regards as pos~sors •
.only those who are actually in possession nee~ not provide protection to-those
who though not in possession, ought to have been in possession. · ·
Elements of Possession
-According to Holland, legal possession has two essential _el~men~;
namely, (1) ·corpus, ·and (2) animus. Savigp.y also supports tJ:tll;:.:·'V~~l'(,,na
considers corpus possessionis and animus ·dmnini as the two essential :n?quisites .
of possession. In his view, corpus possessionis means effective control over.the
thing which in other words ·means exclusive use of the thing with capacity _to
eliminate the interference of others. By animus domini, Savigny contends
intention to hold the thing as an owner of it. Both these elements are considered
necessary for legal possession.1 · to exclude others from interfering with his legal possession.
Salmond, however, does not think that animus should always be present
•in legal ·possession. Lightwood also supports Salmond and holds that power to
eliminate external interference need not be an essential element of possession.2
Salmond illustrates his view by an example. He says that an infant has no
physical capacity to exclude others from depriving him of his possession like a
strong and healthy man, nevertheless if he holds a coin with him, he _would be
.· ~eeined to have legal possession of it.
Ihering takes a sociological view of the .concept of possession. Therefore,
he does not lay much stress animus possidendi. In his view, it is .q uite
immaterial as to how a person intended to possess a thing but what is important
is how he got it. Thus he lays greater emphasis on the character which
·determines it's legality. · He considers animus not as an essential element but
only as supplemental to a claim of legal possession.
Sir Henry ~aine pointed out that in early stages of development of law,
physical contract must have . been deemed necessary to constitute legal
possession but in actual practice, possession does not mean mere physical control
but the intention to possess a thing to the exclusion of others is also equally
necessary.
Justice Holmes of U.S.A. after analysing the different theories of
possession, concluded that both · corpus and animus are essential for legal
possession. The former is the physical or objective element while the latter is
me:n:4tl or subjective element. The terms 'corpus' and 'animus' have been
ad9pted from Roman law.
1. Corpus ~ossessionis
Corpus implies two things, namely, : -
( i) Possessor's physical relation to the res, i.e., the object; and
(ii) the relation of the possessor to the rest of the world.
1. Dias & Hughes : Jurisprudence, p. 315
2. Lightwood: Possession of Land, p. 11.
POSSESSION 421
, -_. -The first point emphasises ~ t there must exist some physicctl contact of .
a person: with a thing which he possesses so as to give rise to a reasonable
assumption that others will not interfere with it. The physical control _of the
possessor over a thing implies that others will not interfere with the ·
p<>Ssessor's right to use _o r enjoyment of that thing. This assuran~e of non-
interference can: be secured in any of ~e following ways : - ··
(i) Physical power of the possessor.-The physical power of the _possessor
over the. thing in his possession acts as. a guarantee of user of that thing. It is
also an assurance against the noi:i-interference of others in the right of his
possession. The person in possession generally uses walls, gates, doors, locks etc.
(ii) Personal presence of the possessor.-In Illany situations mere physical
presence of the possessor is enough to retain possession although he may not
have the necessary physical strength to resist interference. For _example; ·a coin
in a child's hand is sufficient to denote his possession over the coin although he ·
does -·not have the physical strength to retain the coin. ·
(iii) Secrecy._:_If a person keeps a thing which is in his possession in· a
hidden place, it is an effective mode of excluding external interference and
keeping that thing secured;
(iv) In modem societies wrongful possession is not deemed with favour, _
therefore respect for .rightful claim prevents others from interfering with the
legal possession of the possessor.
(v) Protection afforded by the possession of other things.-At times
possession of ·an object tends to confer possession of certain other things which
are connected with it or accessory to it. Thus possession of land confers
possession of things that are on or under it. But the position in this regard is,· ,,.
however, not very clear as seen in the case of South Staffordshire Water Works
Co. v. Sharman. 1
(vi) Another measure of security of possession is the manifestation of the
animus domini. The visibility of the claim is another element in the factual
security of its enjoyment. Thus using a thing openly carries with a prima facie
rightmindedness of its possession.
One notable feature of corpus is that possession is not lost by mere
temporary absence of the possessor from the object. As rightly observed by
Markby, "corporeal contact is no~ the physical element which is involved in
the conception of possession~ It is rather the possibility of dealing with a thing
as we like and of excluding others. If we consider the various modes in which
possession is gained or lost, we shall recognise this very clearly." An
illustration would further make the point clear. If a person throws a net in the
tank to catch fishes, he does not acquire possession over the fishes until they
are caught in the net. Likewise, the possession of a person over his pet dog
1. (1896) 2 QB 44.

422 JURISPRUDENCE AND LEG~L TIIBORY
I
i
which is let-loose to move about freely is not lost during the time it is moving
freely because he still has the corpus and animus over it.
2. Animus Possidendi
Me1·e juxtaposition is not possession. It must indicate some possibility of
physical control accompanied by a 'will' to exercis~ such control. This mental
element in possession constitutes animus. The classical Roman jurists recognised
two degrees of control over ·an object possessed, the lower degree of which is
described as dententio while the higher one was called possessio, properly so
called. Mere detentio exists when the intention to dispose of the object in
possession is limited by the recognition of the outstanding right of another,
whereas in case of possessio the holder believes himself to be the sole rightful
owner of the object.
The subjective or mental element in possession is called animus possidendi
which implies intention to appropriate to oneself the exclusive use and
enjoyment of the thing possessed. It is the conscious intention of the possessor to
exclude others from interfering with his right of possession. Holland pointed
out that apart from the physical power to deal with the thing, the possessor
must also have a will to exercise such control. The following points need special
consideration in context of the element of animus in legal possession:-
(i) The animus or desire to possess need not necessarily be rightful, it may
even be consciously wrongful. A thief has a possession of stolen things no less
real than .the true owner of those things. This is well illustrated by the case of
R. v. Hudson.1 ·
(ii) The possessor must have exclusive claim over the thing in his
possession. That is, he must intend to exclude others from use and enjoyment of
that thing. TI1e exclusion, however, need not be absolute. For example, a person
shall still be deemed to be in legal possession of land notwithstanding the fact
that some other person or public at large, may possess a right of way over that
land.
(iii) TI1e animus need not amount to a claim or an intention to use the thing
as owner. Tims in case of a pledge, the pledgee has the possession of the thing
pledged although he only intends to retain it in custody as a security to ensure
repayment of his debt.
(iv) The animus need not be necessarily that of the possessor himself, e.g.,
a servant, agent, trustee or a bailee does not keep things in possession for his
own use but holds them for some other person.
(v) TI1e animus may not be specific, instead, it may be merely general. For
instance, a person who has caught fishes in his net has possession over all of
them although he does not know their exact number. Likewise, a person is
deemed to be in possession of all the books in his library although he may not
even know about the existence of some of them.
l. (1943) 1 KB 458,
POSSESSION · 423
It must be stated that when a person has possession of a receptacle, such
as a box, cabinet or envelope, he has also the possession of the contents
thereof.
The _case of N.N. Majumdar v. State, 1 may be cited in which the question
of animus came up for determination before the .High Court.of Calcuttc,1. In this
case, the police made a search of the accused's house in the hope that the
pistol would be recovered from there but no such recovery could be made. In the
meantime, the accused had a quick word with his wife who went out and
returned within three or four minutes with a pistol and some catridges. The
police took the plea that as per Section 27 of the Evidence Act, it should be
presumed that the pistol was recovered from the possession of the accused. The
Court, however, rejected the contention of the prosecution and held that the
Arms Act being a special enactment, the fact of animus must be specifically
proved and mere existence of corpus without animus is ineffective to constitute
possession.
Theories of Possession
From the foregoing discussion it will be seen that the con~ept of possession
has evolved through various stages. In its earliest stage, physical control over
a thing constituted possession. It was in the later stages of development that
the fact of possession received recognition arid protection of law. Taking
inspiration from the concept of possession: under Roman law, Savigny and Ihring
developed their theories of possession on the bas~s of analysis of the concepts of
possession in fact and possession in law.
1. Savigny's Theory of Possession
Savigny founded his theory of possession on the text of Roman jurist Paul
and emphasised that possession has two basic elements, namely, (1) corpus
possessionis, and (2) animus domini.
By corpus, he meant effective physical control of the thing, that is,
immediate physical power to exclude ariy foreign agency's interference by the
possessor.
The animus in possession signified mental element or conscious intention to
hold the object (thing) as owner against all others. Savigny conceived that
there can be no possession without this mental element, i.e., animus.
According to him, protection of possession is a branch of the protection to
person and as any act of violence to person is unlawful, so is the act which
disturbs possession by fraud or force, is unlawful.
Criticism.-Savigny was wrong in assuming that possession cannot be
acquired without corpus and animus and possession is lost when either of these
elements are lost. In actual practice we see that possession continues even when
one of the elements is lost and in some instances even in absence of both the
elements.
1. AIR 1951 Cal 140.
 JURISPRUDENCE ANDLEGAL THEORY
I
. . \ .
Again, Savigny has· not taken note of the · bet. th~t law ·d~ not proh?ct a
possession which is ·a cquired unlawfully,_ although both the elements •may be
present in it. _Thus a thief of a stolen object is not protected by law. ·· ·
2. Ihering's The·o ry _of Possession
Ihering's theory of possession appears !O be more practical and realistic.
Taking an ·objective view he adopted a sociological approach explaining. the
concept of -possession in his theory. He justified protection of possession under
Roman law and said, "whenever a person looked like ah owner in relation to a
thing, he had possession of it, unless possession was denied to him by rules of
law ·based on practical convenience." The element of animus was therefore,
merely an intelligent ·consciousness of the fact of possession. Thus Th.ering was
mote practical in approach and did not insist on presence of animus as an
element of possession. He considered animus only as a supplemental element for
. possession.
Ihering contended that possession is ownership on the defensive. A person
who is exercising ownership in fact (that is the possessor) must be protected and
be free from the necessity of proving title against a person who is in unlawful
possession.·
Criticism.-Although Ihering's theory of possession is more acceptable
than that of Savigny's theory but it also suffers from certain shortcomings.
Firstly, lliering analysed the concept of possession purely in the background of
Roman possessory interdicts and therefore, it fails to explain the cases where
law refused 'possessory rights' to persons who were in effective physical control
of the thing possessed.
. Like Savigny's theory, Th.ering's theory also fails to explain possession in
ii\slm,ces where possessor's right to possess a thing is upheld and protected by
law despite the fact that both the elements, namely, corpus and animus are not
present. The objection to corpus and animus as essential elements of possession
is that their . content has varied so much over the years that they cannot
provide a reliable criterion to decide possession. Commenting on this Erle CJ
' -observed :
"Possession is one of the most vague of all terms, and shifts its meaning
according to the subject-matter to which it is applied." 1
3. Kant's Theory of Possession
Emanuel Kant says, " men are born free and equal. Freedom of will is the
essence of man. Possession is the embodiment of the will of a man. By taking
possession of a thing, a man incorporates his will and hence his personality in
that thing". As Hegel would have said possession is the objective realisation
of free-will. The will of an individual thus exhibited in possession is entitled
to respect from every other individual.
~ .• ,. v. Purdy (1975) QB 288 (298).
POSSESSION 425
4. Salmond's Theory . .. . . .
Sir Salmond denied ·th~t conception of possession in fact and possession iri ·
law are two different . _c onceptions and observed that there is :only · one
conception, which is possession in. fact. He distinguished between possession of
physical objects, which he called "corporeal possessi~n" and possession of .
(
'rights; which he termed as incorporeal possession. According to him, corporeal
possession is 'the continuing exercise of claim to the exclusive use of it'. The
exercise of claim involv:es two elements, corpus possessionis and animus
possidendi. He stated that animus possidendi is the ·intent to exclude others
which is analogous to Savigny's animus domini. He referred to the decision in
Bridges v. Hawkesworth, 1 and held that the Court in that case had rightly.
decided that the shopkeeper had no intention to exclude other people from the
bundle of notes because he was unaware of its existence in his sh(?p and
therefore, had no aminus and hence the finder of the bundle had the possession
of it.
However, Dr. G. L. Williams, the editor of Eleventh Edition of Salmond's ·
Jurisprudence, altered the text of Salmond 's theory of possession and
stated that assuming . that both corpus and animus are required to initiate
possession, the possession once acquired may continue even though both corpus
and animus are subsequently lost. Thus, Dr. Williams demolished the entire
edifice of Salmond's theory that possession requires both corpus as well as
animus. 2
5. Holland's Theory
Holland's theory of possession is founded on preservation of peace in
society. In his view, the predominant motive that has induced the law to give
protection to possession was probably a concern for the preservation of peace.
Possession connotes respect for rightful claim of a person. Thus "an owner will
possess his property on much easier terms than those on which a thief will
possess his plunder." ·
6. Holmes' Theory
According to Holmes', in order to gain possession, a man must stand in a
certain physical relation to the object and to the rest o_f the ·world, and must
have a certain intent. These relations and this intent have been expressed by
the term corpus and animus which are essential ingredients of possession. He,
however, described corpus as a manifested power co-extensive with the 'intent
'and treated it less important than the intent. Thus, he supported the Savigny's
theory of possession and held that both corpus and animus are necessary to
constitute possession.
7. Pollock's Theory
Federick Pollock laid greater stress on -defacto control rather than an
animus in his theory of possession. In his opinion, a general intent to keep a
1. (1851) 21 LJ QB 75.
2. Salmond.: Jurisprudence (11th Ed.) p. 339.
426 JURISPRUDENCE AND LEGAL IBEORY
i
\
thing under one's physical control would suffi~ to constitute possession. The
person in possession of a thing (res) should not only have a physical power over
it but also the ability to exclude others. However, this theory fails in case of
possession of a thing by a child who has no physical powers to exclude those
who are stronger than him or a servant who has temporary custody of things of
others for some legitimate purposes. 1
Kinds of Possession
Possession may be of many kinds. It may either be corporeal or incorporeal;
mediate or immedi#tC, constructive possession, adverse· possession and so
on.
1. Corporeal and ·I ncotporeal Possession
Corporeal possession is the possession of material things like land, house,
buildings and movabl@s like books, chattels etc. In the case ·of corporeal
possession, the corpus consists firstly in confirming exclusion of other's
interference and secondly in the enjoyment of the thing at will without external
interference. Actual Ult of thing is, however, not necessary. Thus a person m:ay
keep his watch locked in a safe for several years without using it, he would
nevertheless be deemed to be in possession of it The corporeal possession .
therefore, consists not ih dealing with the thing but only in the powers of
dealing with it at will.
Incorporeal possession, on the other hand, means possession of immaterial
or intangible things which we cannot touch, see or perceive. The examples are
possession of a copy-right or a trade mark or a right of reputation, goodwill etc.
Unlike corporeal possession, in case of incorporeal possession, actual continuous
use and enjoyment is deemed as an essential condition. The reason being that in
this case, power of ex~tcising the possession at ~ill is not visible as an objective
fact because of its incorporeal nature. Therefore, exercising it at will can be
known only when it is actually being used. In brief, continuous non-user may give
rise to the extinction of the right of incorporeal possession.
In Roman law, eorporeal possession is called as possession corporis and
incorporeal possession is kno~n as possessio juris. Some writers suggest that
possession can only b~ corporeal and there is nothing like incorporeal possession
because this concept falls short of the requisites of real possession. It is for this
reason that the Rom~n law calls incorporeal possession as quasi-possession.
Salmond also considers that the distinction between coporeal and incorporeal
possession has no prat:tical significance for this very reason.
According to Ihering, both forms of possession, namely, corporeal and
incorporeal possession in fact consist in the exercise of a right. The corporeal
possession implies ce.t tain right over an object. Incorporeal possession involves
some object over which or where the right is exercised. Therefore, truly
speaking, the difference between the corporeal and incorporeal possession is
that of the degree and not of the subsistence.
1. Pollock and Wright· : Possession in Common Law p. 1213.
POSSESSION 427
2. Mediate and Immediate Possession
Mediate possession is the possession of a thing through another person. It
is also known as indirect possession. For instance, if I purchase. a book through
any agent or servant, I have mediate possession so long as the book rema!115 in
my agent's or servant's possession. Salmond points out three categories of
mediate possession as follows : -
( 1) Possession acquired through an agent or servant ;
(2) Possession held through a borrower or hirer to tenant where the res,
i.e., the object can be demanded at will; and
(3) Where the property is lent for a fixed period of time or delivered
as security for the repayment of a debt.
It is significant to_ note that in case of a mediate possession two persons
have the possession of the same thing at one and the same time. The existe~ce
of a mediate possession can be used against third persons only and not agamst
the person who has immediate and real possession of the thing. Therefore,
mediate possession obtained by the master, landlord, pawnee from the serv~nt,
tenant, pawner respectively can be used against the whole world exceptmg
those persons through whom mediate possession has come into existence.
The three-fold categorisation of mediate possession has been criticised by
some writers on the ground that in case of an agent or servant, he does not
possess the thing but merely has the custody of it. The ele':1ent of _a~imus
possidendi is wanting in those cases. Again, in case of a batlment, 1t 1s the
bailee and not the bailor who can sue for interference with the possession of the
bailee because he has the actual possession and not the bailor.
Yet another reason for not accepting the theory of mediate possession is
that two persons cannot be in possession of the same thing at one and at the
same time adversely to each other. As Salmond pointed out 'exclusiveness' is
the essence of possession. 1
Immediate possession is also known as 'direct possession'. If the relation
between the possessor and the thing possessed is a direct one, it is called
immediate possession. For example, if I purchase a book myself, I have
immediate possession of it without any intervening agency. The things in
possession of a master, principal and owner are said to be in their immediate
possession.
TI1e English law does not recognise the distinction between immediate and
mediate possession because at a time one and only one person can have exclusive
possession over a thing. 2 English law does not accept the vie~ that th: ~erv~nt
possesses his master's goods, he only may have custody of 1t. TI1e d1stmc~on
between immediate and mediate possession is, however, explicitly recogmsed
under the German law.
1. Fitzgerald P.J.: Salmond on Jurisprudence, (12th ed.) p. 287.
2. Paton G. W. : Jurisprudence, (3rd ed.) p. 580.

428 JURISPRUDENCE A...1'JD LEGAL THEORY
3. Quasi-Possession
The doctrine of quasi-:possession also known as possessio juris extends to
control which the person exercises over certain advantages, short of ownership,
which may be derived from objects. A right of way or passage over other's land
or a perpetual right of appointment of a benefice etc. is an illustration of quasi-
possession, the rules for which, are similar to that o~ possession properly so
called.1
4. Concurrent Possession or Duplicate Possession .
The English civil law explicitly holds that two persons cannot be in
possession of the same thing at one and the same time.2 Thus exclusiveness is
the·essence of possession because two adverse claims of exclusive use ·are not
capable of effectual realisation. It is, however, realised that there may be
certain claims . which are not adverse and · are not therefore, mutually
destructive. Such claims could be concurrently realised. The concurrent
possession is also called duplicate possession and Salmond has summarised ~t as
follows:-
(1) Mediate and immediate possession may co~xist as in case of
possession of servant over his master's things where the servant
has an immediate possession and the master has mediate
possession.
(2) Two or more persons may possess a thing in common just as in case of
co-owners. This has been termed as compossessio in Roman law.
(3) ~oroporeal and incorporeal possession may co-exist in respect of
the same material object. For example, a person may possess
corporeal possession of a piece of land while another may have
the right of way on the same land which is incorporeal possession
of it.
5. Constructive Possession
Constructive possession means having power and intention of retaining
control over property but without actual control or actual presence over it.
According to Pollock, constructive possession is possession in law and not
actual possession. It is a right to recover possession~ For instance, the delivery
of keys of a building or a warehouse may give rise to constructive possession of
the contents to the transferee of the key. However, Keeton does not recognise
this kind of possession because in his view the delivery of key is more than a
symbolical act, witnessing that possession has changed. The key is an
.,
instrument by virtue of which control of the building or warehouse is received
and therefore, with the key goes the control and consequently the possession.
I Actual delivery is the transfer of immediate possession. It involves
Therefore, this is a case of actual possession and not that of constructive
possession.3
1. Hollan4 T .E. : Elements of Jurisprudence (13th Ed. 2010) p. 208.
2. This is expressed by the maxim, 'plure eandem rem in solidum possidure nonpossunt •.
3. Keeton : Jurisprudence, (2nd ed.) p. 190.
POSSESSION 429
6. Adverse Possessi_o n
Adverse pe>ssession implies the possession by a person initially holding
the land on behalf of some other person and s~bsequently setting up his own
claim as a true owner ~f that land. If adverse possession continues peacefully
undisturbed for a prescribed period, 1 the title of the true .ownerjs .exting1,1ished
and the person i~, :possession becomes the true owner of that land. Three
elements -are c:leemep.:-necessary for ·~stctblishing c)dverse possession, namely,
(1) continuity, (2) adequate· publicity, and (3) peaceful and undisturbed
possession for prescribed period. In short, to be adverse, possession must be
actual, exclµsive~ and adequate in continuity and publidty and.the -exercise of
possession should-be without violence and without permission. · ·
Modes of Acquisition of Possession
Possession is acquired whenever the two elements of corpus and animus are
existent and the loss of either of these elements wiB usually tend to destroy
possession. There are three known modes of acquiring possession which are as
follows:-
(1) By taking.
(2) By delivery.
·/
(3) By operation of law.
1. Taking.:---Taking is the acquisition of possession without the coll$ent of
the previous owner. Taking may either be rightful or wrongful. It is not
necessary that the thing taken in possession must necessarily be already in
possession of any previous owner. For instance, res nullius, that is, a thing
belonging to no one, has no previous possessor. Taking may be original or
derivative. The taking is original when the object taken has no owner (res
nullius), e.g., when a man catches a wild animal or a bird etc. When the
possession of a thing which already has a previous owner is taken, it is
derivative taking. This derivative taking may be rightful or wrongful. As
pointed out by Keeton, "where an inn-keeper seizes the goods of his guest, who
has failed to pay his bill, there is an acquisition of possession against the will
of the previous possessor, but it is rightful taking of possession. But where a
thief steals a watch, it is still an acquisition of possession against the will of
the previous owner, but it is wrongful, i.e., not in pursuance of legal right."
2. Delivery.-When a person acquires possession with the consent or
co-operation of the previous owner, it is known as acquisition of possession by
delivery. Delivery is of two kinds, namely, (i) actual, and (ii) constructive. -
transfer of a thing from the hands of one possessor to another. Actual delivery
involves immediate transfer of possession, such as sale~ The delivery of a
chattel (thing) on loan or deposit is also an example of actual delivery wherein
1. In India this period is twelve years.
430 JURISPRUDENCE AND LEGAL TIIEORY
there is transfer of immediate possession but th~ mediate possession is reserved
with the transferor. ' a tabular form as follows : -
In constructive delivery, there is no change in the position of immediate
possession. There is only transfer of mediate possession. Constructive delivery·
is of three kinds : - ·
(i) Traditio Brevi Manu.-The surrender of me<:{iate possession was called
as Traditio Brevi Manu under the Roman law. In this, there is a surrender of the
mediate possession to one who is already in immediate possession of it.1
Salmond finds no equivalent to this term in English law hence the same has
been adopted in English law as well, e.g., if a person gives his watch to a
watch-maker for repairs and subsequently sells it to him, there is surrender of
mediate possession to the watch-maker who already has immediate possession
of the watch.
(ii) Constitutum possessorium.-This is just the converse of traditio Brevi
Manu, that is, in this there is transfer of mediate possession while the
immediate possession remains with the transferer. For example, if I purchase a
car from one who habitually hires out cars and then allow him to continue its
use as a car for hire, I get constructive delivery of the car, although there is no
immediate transfer of the possession of the car. Again, a warehouseman is in
control of goods which belongs to him. If I purchase those goods from him and
, allow him to continue possession of it in the warehouse on my behalf, to be
:': effectively delivered to me at specified time, it is a case of constructive
delivery to me.
(iii) Attornment.-In this kind of delivery, there is transfer of mediate
possession while immediate possession is in the hands of a third person. For
example, if A has goods in the warehouse of B and they are sold by A to C, then
in this case A has actually delivered ;;hem to C as soon as B has agreed to hold
them for C and no longer for A.
3. Operation of Law .-Possession may also be obtained by operation of
law. For example, if a person dies, the possession of his property is transferred
to his successors and legal heirs. It may be noted that long, continuous and
uninterrupted adverse possession for a period of twelve years extinguishes the
claim of title of the true o~ner and adversary's adverse claim is established.
This effect of lapse of time on titles is called 'prescription' which is acquisitive
or positive in respect of the person in whose favour the right is created and
.extinctive or negative in respect of the person whose right is lost or destroyed. 2
Thus prescription, i.e., lapse of time has two effects-one is positive and the
other is negative. If the fact of possession is destroyed due to prescription, it is
negative and if the fact of possession is present, the right is created and the
prescription shall be positive. Prescription gives a title of right to a person
because of the coincidence of possession and ,owz::iership.
1. Cain v. Moon, (1896) 2 QB 283; Richer v. Voyer, (1874) LRS PC 461.
2. Section 15 of the Indian Easements Act, 1882.
POSSESSION 431
The different modes of acquisition of the possession may be summarised in
Modes of Acquisition in Possession
I
I
By Operation of Law
By Taking By Delivery
I
Inheritance Prescription
I
Constructive Delivery
Actual Delivery
I
Constitution
I
Attornment
Traditio Brevi Manu
Possessoriun
The .Continuance of Possession
It has been noticed that acquisition of legal possession normally involves
the occurrence of some events whereby the subject-matter comes under the
control of the possessor. It involves the presence of two elements, namely, corpus
and animus. The element of corpus implies physical control of the thing by the
possessor and animus signifies intention on the part of the possessor to exercise
control over the subject-matter and to exclude others from it. It must, however,
be pointed out that these two constituent elements of corporeal possession are
-l essential only at the commencement of possession and not for its continuance. In
other words, once a possession has commenced, the absence of the corpus or the
animus will not extinguish the possession, instead it shall be continued as usual.
This may be explained through some illustrations. A person who goes for a
walk leaving his things in the house, he still has the right of possession over
those things although he loses corpus on them temporarily while he is away
from the house. Again, if a person loses his gold ring in the street, he has now
lost control over it and there is every likelihood that others will interfere
with it, nevertheless, unless he actually abandons poss€.3sion, the legal
possession of the ring shall remain with him.
The continuance of intention (i.e., animus) is also not deemed necessary for
continuance of possession. Thus even if I forget about the existence of certain
book in my library, and so have no specific intention of still possessing it, I am
nevertheless in possession of it.
It is only when a person loses control of the subject-matter and gives up all
intention of resuming control. then he loses possession of it in law. Thus if I go
away from my house with no intention of ever returning or exercising any right
over it, I may be taken to have abandoned possession. Salmond refers to the case
432 JURISPRUDENCE AND LEGAL THEORY
of Tickner v. Hea.rn 1 to illustrate this point \further. In this case a staW:tory
tenant of a protected dwelling under the Rent Act left the premises on a
temporary visit, became insane and remained continuously in hospital. In order
to retain possession within the Act, the Court found it necessary that she
should be able to show the existence of an intention to return. On evidence this
intention was proved hence the Court helc! that her possession was continued. 2
Possession in fact and Possession in Law~Distinguished
Possession in fact is a relationship between a person and a thing. To
possess means to have physical control. However, the.r e are certain things on
which a man cannot have possession such as sun, sea, moon, stars. One may be
said to be in possession even though there has been temporary relinquishment of
control over the thing possessed. Thus a book which I have kept in the shelf of
my room will be said to be in my possession even though I may not have control
over it.
.Another element necessary for possession in fact is power to exclude ot!-iers
from interference. There are two elements in possession, namely, physical
control (corpus) over a thing and intention to possess (animus). Thus general
control over a thing and intention to exclude others from interfering with it,
would constitute possession in fact.
Possession in law, on the other hcU1d implies that law has given possessor
certain rights, such as right to continue in possession without any body's
unlawful interference. This legal right is a primary right called as right in rem
which allows the possessor civil and criminal remedies against those who
violate this primary right. Thus, dishonestly taking a thing out of possession of -
the possessor without his consent would amountto theft.
Sometimes possession in law is possible even without the knowledge of
the possessor. For example, if I lose my wallet, in law I still retain possession of
it, although in fact, I may well be said to have lost possession of it. Take
another example where a servant is carrying the watch of his master for
repairs and a thief intervenes and steals it away. A'> against the thief, the
servant has legal possession over the watch but not against his master, though
the thief is in possession in fact .3
Another Illustration.-Where I pledge my gold ring for Rs. 500/- to be
returned only on payment of the debt along with interest accrued thereon, even
though the pledgee has possession in law till the debt is paid to him but if a
third party takes possession thereof, it will not be possession in law though in
fact he may possess it. ·
Relation Between Possession and Ownership
Possession has been treated as an external evidence of ownership. A person
in possession of a thing may be presumed to be the owner of it. The person in
1. (1961} 1 All ER 65.
2. Fitzgerald P.J.: Salmond on Jurisprudence, (12th ed.) p. 290.
3. R. v. Harding, (1929} 142 LT 583.
POSSESSION 433
possessi<:>n need not prove_ his ownership, instead, the burden of disproving
ownership of the possessor 1s on the person who disputes his ownership. Along,
continuous and uninterrupted possession is an effective method of realisation of
ownership.
According to Salmond, the subject-matter of po~session and ownership is
more or less the same. A thing which-may be owned, may also be possessed.
Likewise, a thing which may be taken into possession may also be owned. There
are, however, certain exceptions to this general principle. There are certain
intangible rights which may be possessed by a person but they cannot_be owned, .
e.g., copyright, goodwill, trade mark, right of way etc. Conversely, there are
certain rights which can be owned but they cannot be possessed. For example,
right of the creditor to recover his debt-it is owned and not possessed. In short,
it may be concluded that right in rem are capble of being owned as well as
possessed but right in personam can only be owned and not possessed.
Sir Henry Maine suggested that historically, the concept of possession is
prior to that of ownership. In fact, right of possession has evolved out the right
of ownership. ·
Possession is the de facto exercise of a claim while 'Jwnership is the de jure
recognition of it. Possession is the guarantee of fact whereas ownership is the
guarantee of law.
A claim to posses~ion is maintained by one's own self-asserting will but a
claim to ownership is legally protected by the will of the State.
Ihering observed th~t possession is the objective realisation of ownership:
Possession in fact, is what ownership is in right.
Salmond pointed out that "the law of prescription determines the process
by which through the influence of time, possession without title ripens into
ownership and ownership without possession withers away and dies." 1
In English law, possession is a good title of right against one who cannot
show a better. A wrongful possessor has the rights of the owner as against all
others excepting the true owner himself and the earlier possessors. Thus, in
Armory v . Dalamirie 2 the plaintiff a chimney cleaner, found a jewel while
cleaning a chimney and he took it to a goldsmith in order to ascertain its real
value. The goldsmith refused to return it to him on the ground that it belonged
to some third person. The Court held that plaintiff, the chimney cleaner, had a
better title to the jewel as against the· goldsmith and therefore, goldsmith's
plea of jus tertii (that is the thing belong to someone, else other than the
plaintiff) deserved to be rejected. ·
There are some legal systems which treat possession as a temporary or
provisional title even against the true owner himself. Even a tn1e owner who
deprives the immediate wrongful possessor of his immovable property, shall
1. Fitzgerald P.J.: Salmond on Jurisprudence, (12th ed.} p. 290.
2. (1722} 1 Strange 505.
434 JURISPRU~E~CE AND LEGAL THEORY
be compelled to restore 1
it to the .wrongful p~ssessor and he cannot set up the
defence of his superior title of ownership to ·. it. So much so, that if any person
ousts another who is in immediate possession of immovable property, the court
of law may restore his possession. The spirit behind this law, though it may
seem to be apparently wi.just, is that no one should take law in his own.hands
under the pretext of self-help and endanger public peace. One who wants to
retain and recover possession must take the recourse of law court and should not
act at his own. · 2. The above presumption is rebuttable one, so that an owner without
Possessory Remedies & Proprietary Remedies
The legal remedies available for protection of possession even against
ownership are called possessory remedies while those which are meant for
protection of ownership are called proprietary remedies. In the modern civil
law, they are respectively known as possessorium (a possessory suit) and
petitorium (a proprietary suit).
Awrongful possessor who is deprived of his possession even by the owner,,
otherwise than due process of law, can recover it from him, simply on the
ground of his being ih possession. The true owner who retakes possession, must
first restore it to the adversary (wrong-doer) and then proceed in due course of
law.
·Objects of po11essory remedies are threefold.--Salmond attributes three
main reasons ·for extending provisional protection to possession under the law.
They are:-
(1) lt seeks to prevent the .evils of violent self-help. He who tries to
restore his possession by violence and excessive use of force commits a trespass in
the eyes of law. This provision, however, has no application in case of
chattels, ·i.e., movable property where a person can re-take. his chattel by use
of reasonable force.
(2) Another reason for giving recognition to possessory remedies is to be
found in serious imperfections of the proprietary law. The procedure by which
an owner recovered his property was dilatory, cumbrous and faulty which
rendered legal mechanism ineffective. It was highly disadvantageous to the
plaintiff who was deprived of ownership. Possession being nine points of the
law, it was deemed necessary that original position of affairs must first be
restored and the possession must first be given to him who had it first. It is only
then the law shall decide titles of the disputants.
(3) Yet another justification for advancing possessory remedies is to be
found in the difficulty of the proof of ownership. It is far more easier to prove
one's possession than his ownership. Since possession is prima facie evidence of
ownership, the law presumes that continuous uninterrupted possession for a long
time entitles the pQssessor to claim the right of ownership. The possessor has
only to prove a prior possession while the defendant who is challenging the
1. Section 9 of the Specific Relief Act, 1963, see also Section 145 of the Code of Criminal
Procedure, 1973,
POSSFSSION ·435
· possession must prove a better title ·than that of the possessor to rebut the
presumption against him. . · _
The English law, however, does not recognise possessory remedies
and applies the following rules for settling disputes involving claim of
possession:- ·
1. Prior possession is pritna facie proof of title .
possession can well prove his title to ownership and thereupon
recover possession from the possessor.
3. The law will not permit jus tertii to be set up as a defence.
Doctrine of /us tertii
If a person interferes with the right of possession of another and the
possessor brings a suit against the intruder, in that case ~he defendant may take
the plea that neither he nor the possessor has a rightful claim to possession but
spme third person has a title to it. In other words, the defendant cannot take
the defence that some third person has the title instead of the possessor and
therefore, he (i.e., t1'.e defendant) should be allowed the possession. The
English law, however, does not permit jus tertii as a defence except in the
following ~stances :- ·
( i) when the defendant defends the action on behalf of and by the
· authorisation of the true owner;
(ii) when he (defendant) committed the act complained of by the
authority of the true awrier; and
(iii) when he has already made satisfaction by returning the property
to the true owner.
These circumstances may therefore, be treated as exceptions to the _
doctrine of jus tertii.
Possession Under the Indian Law
In ancient Indian Law, title to land depended on personal possession of it,
Katyayan speaks of two kinds of possession, namely, (i) Possession with title,
and (ii) Possession without title.
A person not having title to possession could not claim the right of
ownership. Yajnavalkya Smriti contains a reference to the right of prescription
wherein ii a person allows his property being used by another person
uninterruptedly for a continuous period of twenty years but raises no objection to
it, shall lose his ownership over that property. Gautam and Narada Purans
also contain references about acquisition of ownership of property by
uninterrupted continuous possession for ~wenty years in case of immovable
property and ten years of movable property.
Consequent to the introduction of common law in India during the British
colonial rule, corpus and animus came to be recognised as essential elements of
436 · JURISPRUDENCE AND LEGAL THEORY
possession. The Indian law, however, does Aot accept the distinction between
possession and custody. Undoubtedly, the concept of possession has great role in
determining the rights and titles relating to property. The right of possession
has been protected under Section 145 of the Code of Criminal Procedure, 1973
which provides as under-
Section 145 (1) : Whenever an Executive Magistrate is satisfied from
report of a police officer or upon information that a dispute likely to cause a
breach of peace exists concerning any land or water or the· boundaries thereof ·
within his local jurisdiction, he shall require the parties concerned ·in such
dispute to attend his Court and put in writing their respective claims regarding
the fact of actual possession of the subject of dispute.
Sub-section (4) further provides that the Magistrate shall peruse the
statements so put in and hear the parties and receive the evidence as may be
produced by them, take further evidence, if any, and decide whether any and
which of the parties at the date of the order made under sub-section (1), was ·in
actual possession of the subject of dispute.
The party so put in possession by the order of the Magistrate shall be
entitled to possession until evicted therefrom in due course of law~ and forbid
all disturbance of such possession until such eviction. The Magistrate may
restore possession to the party which was forcibly and wrongfully
dispossessed.1
A person who is ejected from the possession of his land has to prove that
he was in possession of the land and has a better title over it than the
trespasser . In Lallu Yashwant Singh v. Rao Jagdish Singh, 2 the Supreme Court
ruled that a tenant who has been forcefully ejected by the landlord has a right,
to sue the latter for wrongful possession.
The Supreme Court in Puran Singh v. Punjab State, 3 held that where a
trespasser has continuous, absolute and settled possession over another's land,
he cannot be ejected without recourse to due procedure of law and he is entitled
to retain possession even against the rightful owner unless the latter proves a
better title over the land. The Court reiterated its earlier stand once again
regarding adverse possession in Ram Ratan v. State of Uttar Pradesh. 4
In Trimbak v. State of Madhya Pradesh, 5 the Supreme Court held that
where an article recovered from the place which is in possession of the accused
but the general public also has access to that place, then in such a situation it
cannot be said that the article was in possession of the accused.
It must be stated that in deciding the fact of possession in crimi...al cases,
greater weight is given on the element of animus which implies 'conscious
1. Section 145 (6) of Cr. P.C. see also Section 9 of the Specific Relief Act, 1963.
2. AIR 1986 SC 274. .
3. AIR 1975 SC 1510.
4. (1977) 1 SCR 232.
5. AIR 1954 SC 39.
POSSESSION 437
possession' or 'possession with prior knolwedge'. Thus in P.R. Khade v. State of
Maharashtra, 1 the._ accused gave to 'A' arms, ammunitions and cartridges for
safe custody. Subsequently, on the confession by the accused, they were
recovered from the premises of 'A'. The Court held that despite possession
having been transferred to 'A', the accused had retained control over these
articles and therefore, they were deemed "to be
in the possession of the accused.
As stated earlier, where the question is. whether any person is owner of
anything of which he is shown to be in possession, the burden of proving that he
is not the owner is on the person who affirms that he is not the owner.2 Thus it
would be seen that the Indian law extends adequate protection to possession as
also the ownership. .
Section 441 of the Indian Penal Code also extends protection against
unlawful interference in the possession with intent to commit an offence or to
intimidate, insult or annoy any person in possession of the property; or having
lawfully entered into or upon such property but unlawfully remaining .there
with any such intent. The person committing such an offence shall be guilty of
the offence of 'criminal trespass' which is punishable under Section 447 of the
Indian Penal Code with imprisonment upto three months, or with fine upto Rs.
500 I - or with both.
Relation Between Possession and Ownership restated:
The Supreme Court in B. Gangadhar v. B. R. Rajalingam 3 _has stated that
possession may mean that possession which is recognised arid protected as such
by law. Legal possession is ordinarily associated with de facto possession; but
legal possession may exist even without de facto possession; and de facto
possession is not always regarded as possessioq in law. A person who, although
having no ·de facto possession is deemed to have possession in law is said to
have constructive possession. Explaining the relation between possession and
ownership, the Apex Court further pointed out _that ownership is de jure
recognition of a claim to certain property. Possession is the objective realisation
of ownership. It is the de facto exercise of a claim to certain property.
Possession of a right is the de facto relation of continuing exercise and
enjoyment as opposed to the de jure relation of ownership. Possession is the
external form in which claims normally manifest themselves. Possession is, in
fact, what ownership is in right enforceable at law to or over the thing.
Ownership chiefly i~ports the right of exclusive possession and enjoyment of
the thing owned. The owner in possession of the thing has the right to exclude
all others from the possession and enjoyment of it. If he is wrongfully deprived
of what he owns, the owner has a right to recover possession of it from the
person who wrongfully gets into possession of it. The right to maintain or
recover possession of a thing as against all others is an essential part of
ownership. Therefore, ownership implies not so much the physical relation
1. (1999) 8 sec 463; see also Sanjay Dutta v. CB.I., Bombay, (1999) 85 SC 45.
2. Section 110, Indian Evidence Act, 1872.
3. (1995) 5 SCC 241 (decided on 12th May, 1995).
 438 1URI$PRUDENCE AND LEGAL THEORY
: . .
i' .
·betwe~n the person and the th~g as the relation between the person owning an
the thmg owned. Ownership is pre-eminently a right .which carries with it
right to enjoyment, right to its access and of other benefits incidental thereto. If
any obstruction or hindrance is caused for its enjoyment or use, the owner has the
remedy to have it removed.
. . Justice P.B. Mukerjee in the case of Narendta Nath · v. Sta tel observed
that the.concept of possession under the Arms Act 1959, is not necessarily the
same as the concept of possession under the Indian Penal Code. The possession
or control of any arms without licence is an offence punishable under Section 30
of the Act. Such possession under the Act must connote an element of
consciousness in the person charged with the offence. It is this element of
conscio~sness or intention or -knowledge which must be proved to make
possession of arms to constitute an offence under the Act. It does not matter
~heth~r sue? poss~ssion is actual or constructive, physical or mediate or
immediate, direct or indirect joint or concurrent or exclusive.
. It may be noted that the above principle . relating to possession equally
apphes to other prohibitory Acts, such as the Opium Act, Excise Act, Explosive
Sub~tances Act, Narcotic Drugs and Psychotropic Substances Act, Foreign
Exchange Management Act, etc.2
000
1. AIR 1951 Cal 140.
2. EarH.::., uu~ J-\ct was called the Forrign Exchange Regulation Act, (FERA).
.·•
19
OWNERSHIP
Ownership is a complex juristic c~ncept which has its origin in the ancient
Roman law. Perhaps of all of the rights, right to owne~ship is !h~ m~st
important right. The earlier legal systems did · not recognise the ~1s~c~on
between ownership and possession. It was with the advancement of avilization
that the two were considered as separate and distinct concepts. In Roman law
ownership and possession were respectively termed as 'domi~ium' a~d
'possessio'. The term dominium denotes absolute right to a thing while
possessio implied only physical control over it. Roma~s att_ach~d grea_ter
importance to ownership rather than possession because m their view hav~g
absolute right over a thing was much more important .than merely having
physical control over it.
In the ancient and medieval English law also the concept of ownership
developed much later than possession. The earlier law gave importance to
possession of land and chattels because of the miscon~e~tion that ~ossessi_on
includes within it ownership as well. The term 'ownership was used m Eng_hsh
law for the first time in 1583 when it was distinguished from possession.
Holdsworth observed that the English law accepted the concept of ownership
as an absolute right through gradual development in the law of possession.1
Actual possession meant a right to retain until the contrary is proved, and to
that extent a possessor was presumed to be the 'owner'. The idea of ownership
as a right in a comprehensive sense was useful for determining the 'better right'
by proving prior possession.
Legal incidents of ownership .
The concept of ownership consists of an innumerable number of claims ~uch
as liberty, power and immunity with regard to thing owned. These vanous
claims constitute the content of ownership. Ownership is thus a sum-total of
possession, disposition and destruction which involves right of the owner ~o
enjoy and do away with the things owned in the most abs?lute manner, that ~s,
just as he pleases subject, however, to the laws and regulations of the country m
which he lives.
Right of Ownership and the Ownership of a Right-Distinguished
The right of ownership is · the right to the entirety of the lawful use of a
corporeal thing and includes a bundle of rights, liberties, powers and
immunities. Pollock has described right of ownership as "entirety of the po~ers
to use and disposal allowed by law." On the other hand, ownership of a nght
1. Dias & Hughes: furisprudence, (1957 ed.) p. 336.
( 439)
440 JURISPRUDENC:E AND LEGAL THEORY
denotes that he is neither the possessor nor an ~ncumbrancer, but the owners of
the right. Ownership of a right is also known as incorporeal ownership
whereas right of ownership is -c alled 'corporeal ownership'.
The jural concept of ownership is essentially related to the term 'property'
which may either be an animate (physical) object or an inanimate claim such
as a patent right, share in a company etc. T.E. Holland has defined property in
the context of ownership as the "sum-total of a man's fortune, including not only
the objects of whic:h he is owner, but also the value of any claims which he may
have against other persons which he is said to own against them. 1 Objects
which are capable of being treated as 'property' for the purpose of ownership or
possession are classified into various categories, and they have been explained
in succeeding chapter.
. According to English law, right of ownership is termed as fee simple in
which ownership passes in the heirs by devolution, but on years for a specified
period or for life is not considered to be a right of ownership because it is not
perpetual by nature. · (ii) The ownership may be subject to encumbrance in favour of others in
Definition of Ownership
Jurists have defined ownership in different ways. All of them, however,
accept that the right of ·ownership is most comp1ete or supreme right that can
be exercised over anything. According to Hibbert ownership includes within it
four kinds of rights 2 : -
(1) right to use of a thing;
(2) right to exclude others from using the thing;
(3) disposing of the thing; and
(4) right to destroy it.
In Black's Law Dictionary (7th Ed.), ownership has been defined as
"collection of rights to use and enjoy property, including righ~ to transmit it to
others." Therefore, ownership is de jure recognition _of a claim to certain
property.
Thus Hibbert suggests that no one can have an absolute ownership in land
as land is not capable of being destroyed. One can merely have an estate in it.
An estate means the legal interest of a party in land measured by duration
which entitles the party to use the land for an indefinite period.
Austin's Definition of Ownership
Austin defines ownership "as a right which avails against everyone who
is subject to the law conferring the right to put thing to user of indefinite
nature." He further says that ownership is a "right indefinite in point of user
unrestricted in point of disposition and unlimited in point of duration". It is a
I . Holland T.E. : Elements of Jurisprudence (13th Ed. 2010) p . 212.
.., - - ·:,bert : Jurisprudence, pp. 157-58.
OWNERSHIP 441
righ( in rem .which is available to the owner against the world at large. The
three attributes of ownership, namely, indefinite user, unrestricted disposition
and unlimited duration may be analysed in detail.
The term 'ownership' is used with reference to 'things' which may be
corporeal things, i.e., physical objects _a re incorporeal things such as goodwill,
patents, copyright etc. Incorporeal things embrace all claims.1
1. Indefinite user.-This implies that the owner of a thing is free to use or
even misuse it in any manner he likes. The use of the word 'indefinite' has a ·
special significance because the use of land by ·the owner can ~e restricted by
agreements or by operation of law. These restrictions may include:-
( i) The owner of a thing cannot be allowed to use the thing in a manner
which is injurious to others. This is expressed by the maxim, "so use
your property as not to injure your neighbours" .2
which case the power of user for the owner is curtailed by the ·
rights of the encumbrancer.
(iii) The State officials have a right· to enter the owner's prem1ses in
pursuance of a warrant issued by a Court or for any lawful purpose.
2. Unrestricted Disposition.-Austin says that ar~· owner of a thing has
unrestricted right to dispose it of in a way he likes. Thus he regards right.of
alienation as a necessary incident of ownership. However, the owner's power of
disposition may be seriously impaired by the right ofan encumbrancer. Legal
restrictions may hamper the unrestricted disposition of the property. For
instance, Mitakshara School of Hindu law does not allow alienation of
ancestral immovable property without the consent of the coparceners except for
legal necessity. In Germany, division of small farms beyond a particular limit
is not permissible.
3. Unlimited duration.-The right to ownership according to Austin is
unlimited in point of duration. The right shall exist so long as the owner and
the thing exists. It is a perpetual interest which shall devolve upon the heirs
of the owner after his death, but the right shall not be extinguished ."
Criticism Against Austin's Definition of Ownership
Austinian definition of ownership has been criticised by many writers.
They argue that it is fallacious to think that ownership is a single right, in
fact it is a bundle of rights including right of user and enjoyment. Even if an
owner parts with some of the rights involved in ownership, the residue are still
owned by him. For example, in case of a mortgage by the owner of a land,
I. Dias R. M. W. : Jurisprudence (5th Ed 1985) Indian print 1994, p. 196. · · ·
2. Grotvh'urst v. Amersham Burial Board, (1878) 4 Ex. D. 5; St. Helen's Smelting Co., v . Tipping,
. c1s63) 4 a & s 608 .
442 JURISPRUDENCE AND LEGAL THEORY
I
although he has transferred a right, but he is stii1 the owner of the mortgaged
property.
Again, to say that an owner has an unrestricted right of ~Hsposition is not
correct. His right of disposition of the property can be curtailed by the ~t~te.
For insance Article 31 (2) of the Constitution of India1 contained a provision
that the St;te can take away the property of any rerson for pu~lk p~ose.
Again, ·an owner of property cannot dispose of his property with a view to
defeating the claims of his creditors.
Salmond's Definition of Ownership
According to Salmond, "ownership, in its m?st comrrehensi~e
signification, denotes the relation between a person and nght_ tha~ is vest~d _m
1 In its third and widest sense, ownership implies an aggregate of all those
him "that which a man owns in this sense is in all cases a nght. Thus m its
gen~ric sense, 'ownership' signifies the relation between t~e person of ~erence
and the object of ownership. It consists in a complex of n?~ts, all of which ~re
rights in rem.2 In Salmond's view, ownership exhibits the following
incidents :-
( i) An owner shall have a right to possess the thing which he owns.
He may, however, not be necessarily in actual possession of it;
(ii) He has normally the right to use and enjoy the thing owned;
(iii) The owner has a right to consume, destroy or alienate the thing;
(iv) Ownership has the characteristic of being indeterminate in
duration;
(v) Owner has a residuary character. For instance, if a land-o~ner
gives a lease of his property to A, an easeme1:'t to B and a _nght
of profit to C then his ownership shall consist of the residual
rights. 3
Criticism.-Duguit has criticised Salmond's definition of ownership and
asserted that what a person really owns is a 'thing' and not a right. It is,
however, submitted that Salmond comprehends ownership in a wider sens~ to
include both corporeal and incorporeal rights. Thus a man may own a copyn~ht
or a right of way. In this sense, he owns a right and not merely the material
objects.
Cook has characterised Salmond's definition of ownership as an
'unnecessary confusion'. Glanvile Williams has observed that the definition of
ownership as given by Salmond suggests that from th~ point of ti~e, th: concept
of ownership of right must be prior to that ownership of material ob1ects, but
historically it appears just the reverse of it. 4
1. Amended by the Constitution Forty-fourth (Amendment) Act, 1978.
2. Salmond : Jurisprudence (7th Ed) p. 277.
3. Fitzgerald P.J. : Salmond on Jurisprudence, (12th ed) pp. 246-47.
4. Dias & Hughes :Jurisprudence, (1957) p. 340.
OWNERSI-IlP 443
Some Other Views Regarding Ownership
Some other writers, notably, Holland, Keeton, Buckland, Fredrick
Pollock, Hohfeld, Paton etc. have also defined and expressed their views about
ownership.
Holland.-According to Holland, "ownership is a plenary control over an
9bject".1 The word 'ownership' can be used to connote three different kinds of
powers. In its primary sense, it denotes control over material objects, i.e.,
possession over land.
In its secondary and conventional sense, ownership means control over
aggregate of rights,.-e.g., ownership of a patent right for a new invention.
rights vested in a person which he can use against others.
Holland pointed out that ownership confers three kinds of powers on the
owner, namely, possession, enjoyment and disposition. The right of possessipn
can, however, be lost by a lease or a mortgage. The power of enjoyment is
limited by the rights of the State. The power of disposition includes right of
alienation, alteration or destruction which is again subject to State regulations.
Thus, according to Holland, the right of ownership consists of benefits and
burdens. The former consist of claims such as liberties, powers and immunities,
but the advantage which these claims confer are curtailed by duties, liabilities
and disabilities.
Keeton.-Keeton has defined ownership as the ultimate right to the
enjoyment of a thing, as full as the State permits, when all prior rights in that
thing vested in persons other than the one entitled to the ultimate use, by way
of encumbrance, have exhausted. Thus to own a piece of land really means to
own a particular kind of right over the land. Keeton points out that ownership
extends to all kinds of rights whether proprietary, personal or in rem or iri
personam or in re propria or in re aliena.
Buckland.- Buckland defines ownership as "the ultimate . right to the
thing or what is left when all other rights vested in various people are taken
out."
Federick Pollock.-According to Pollock, "ownership is the entirety of the
powers of use and disposal allowed by law." 2 However, it is not necessary that
all the powers of an owner need be exercisable at once and immediately; he may
remain owner though he has parted with some of them for a time. He may even
part with his whole powers of user and enjoyment or suspend his power of
disposal, provided he reserves for himself or his successor, the right of
ultimately reclaiming the thing to be restored to his power as usually happens
in case of hiring land, goods or buildings.
1. Holland: Elements oflurisprudence, p. 221.
2. Pollock : Jurisprudence and Legal TheonJ, p. 97.
444 JURISPRUDENCE AND LEGAL THEORY
\
W.N. Hohfeld.-Hohfeld observed that ~wnership is a collection of
rights, . privileges and . powers, some of which are frequently .found to reside
either for a limited period or perpetually, in persons other than the owner. He
says that ownership is no more to be conceived as an aggregate of rights than '.a
bucket of water is conceived as an aggregate of separate drops. Just as we can
take one drop or many drops from the bucket, likewise we can detach one or
several rights from ownership. · been d~pdsited with him, or which has been lost by someone and f~und by himr
G. W. Paton.-Paton writes that the ownership of a person over a thing
suggests that he has the following rights in respect of that thing : -
( 1) right of user;
(2) possession which also includes eliminating others from that thing;
(3) right of alienation; and
(4) disposition as he wishes.
Paton points out that the above rights which are incidental to ownership
can be limited or restricted by mutual agreements or by operation of law. 1
Vinogradoff traced the origin of concepts of ownership, possession,
properi.y etc. from customary laws. He categorically observed that neither
succession, nor ownership, nor possession started directly from legislation;
. . .
property began with occupation, possession is reducible to defacto detention,
unrestricted user and disposition of it later came.to be known as ownership.
. .,
·
Summing up, it may be state<}. tl},~ .o"'1e_rsfilp is a right in itself distinct
from its component jural relations, which .establish relationships between the
owner and other persons in society. Ownership normally carries with it claims
to be given possession against unlawful interference and receive rents or profits
etc. It also gives liberty to use the land or chattel, as the case may be and
powers of alienation, disposal or creation of interests etc. which are immunities
against deprivation.
Ownership Under Ancient Indian Law
The right to ownership was also recognised under the ancient Indian law.
The great commentators, notably, Narada, Yajnavalkya, Vyas etc. emphasised
that right of ownership of property was to be used for noble cause and good
motives. The ancient Hindu law ordained men to behave in a particular manner
in relation to the person or property of another. They were warned that misuse
of the right of ownership would entail them moral or public indignation and
they would be liable for punishment. The ancient laws of prescription,
bailment, sale etc. were based on distinction between ownership and
possession.2
1. Paton G'.W. : A Text Book of Jurisprudence, p. 420.
2. Ganga Nath Jha : Hindu law and Its Sources, Vol. I, p. 122.
OWNERSHIP 445
Possessi~n w~s the p~oof of ownership through pure title. In other words,
mere p~ssess1on witho~t title to it, did not constitute ownership except in case
possession was has continued for generations.I
,, Explaining the concept of ownership further Narada gives an illustration
when a person sells another person's chattel behind his back which ha~
or whic~ he has been stolen from the. owner, it is called sale without
ownership". 2 .
The_ anci~nt Hindu jurists mentioned seven modes of acquisition of
ownership o! property, namely, (1) inheritance, .(2) gain, (3) purchase, (4)
conquest, (5) mvestm_e1:1~ of wealth, (6) employment; and (7) acceptence of gifts.
These modes of acqwsition are expressed in the following Sanskrit sloka :
"«R' fcit•ffilqi gp::qi-~:~:I
~q;if ~~~:~~:II[~ X-315.
Accorting to Manu, only property of the king or the State could be ·acquired
by conquest but t~e king had no right to interfere or acquire the private
proper7 of the ~UbJects of t~e conquered territory. As regards the property of
no-01:e s l~nd (z.e., res nullzus) Manu says that it belonged to him who first
r:claimed _it under cultivation. Where a thing had no previous owner such as
bird or a fish, the rule of res nullius was to apply and the one who took it first
was its owner. In case of some treasure was discovered, the person who found it
took the whole of it if it was found on his land, and if it was found on some
other's land, he could acquire only half of it.
Gandhian Concept of Ownership
·
Maha~a G~ndhi, the father of the Indian Nation, extended the concept
of tr~st~e~h1p to nght of own~rship and held that ownership does not exist for
1
the md1v1dual owners benefit alone, but he (owner) holds it as a trustee of
property or thing owned, for benefit of society as a whole. Thus, it is for the
benefit of the society at large that the owner holds the property as a trustee.
The ownership right vested in the owner should be used for public good. In other
words, the owner should refrain from using the property owned by him for his
selfish ends but extend the benefit thereof to others by making its use for public
purp_oses. It would t~us be seen that the Gandhian concept of trusteeship as
applied to ownership closely resembled the Vedic perception of right to
ownership.
Unfortunately, the Gandhian co1:1cept of ownership could not see the light
of the day due to then prevailing circumsances. However, some efforts in this
direction were made by the socialist leader Dr. Ram Manohar Lohia and then
by Raj Narayan and George Fernandes during 1969 but were turned down by
saying that it was not practicable.
1. Narada in Mayukha p. 30.
2. Narada in Mayukha p. 30.
446 JURISPRUDENCE AND LEGAL THEORY
\
As of now, right to ownership of property is recognised, protected and
guaranteed under Article 300-A of the ·Constitution. It is now merely a legal
right and not a fundamental right. 1 However, no one can.claim an absolute right
of ownership over a chattel or property, as this right is subject to . several
statutory regulatio:1s. With the nationalisation of private undertakings and
public institutions, the concept of trusteeship to right of ownership has been
.introduced to a large extent. ·
Ev~n under the present Indian law no person can have absolute ownership
of property because this right has been sufficienty restricted by ·statutes and
regulations, such as ceiling law.s, rent control enactments, company regulations
etc.
Characteristics of Ownership
An analysis of the concept of ownership, it would show that it has the
following characteristics : -
(1) Ownership may either be absolute or restricted, .that is, it may be
exclusive or limited. Ownership can be limited by agreements or by operation of
law. When a land or a thing is owned by more th~ one owner, they are called
co-owners and the right of each co-own~r is limited to the right of other co-
owners.
(2) The right of ownership can be restricted in time ·of emergency. For
instance, building or land owned by private individuals can be requi~itioned
arid used for lodging army personnel during the period of war.2 Allotment of
accommodation to tenants by the Rent Controlling Authorities is yet another
illustration to show that ownership can be restricted.
(3) An owner is not allowed to use his land or property in a manner that it
is injurious to others. In this sense, his right of ownership is not unrestricted,.3
(4) Restrictions may also be imposed by law on the owner's right of
disposal of the thing owned. Thus any alienation of property made with intent
to defeat or delay the claims of creditors can be set aside. The power of
disposition can also be limited by the existence of the rights of encumbrancer
such as a mortgagee etc. The owners in India and in most of the countries are not
free to sell their land or property to aliens.
(5) The owner has a right to possess the thing which he owns. It is
immaterial whether he has actual possession of it or not. The most common
example is an owner leasing' his house to a tenant, where tenant is in actual
possession but the ownership still remains with the landlord .. Again, when a
car is hired or stolen, the possession remains with the person who has hired it
or stolen it, but the ownership still remains with the owrier of it.
1. Prior to the Constitution (44th Amendment) Act, 1978, right to ownership of property was a
fundamental right under Art. 31, but consequent to this amendment it has now ceased to be
a fundamental right and made a legal right under Article 300-A of the Constitution.
2. Hannah v. Peel, {1945) 1 KB 509.
3. Rylands v. Fletcher, (1868) 3 HL 330.
OWNERSI-DP 447
(6) Law cfoos not confer ownership on an unborn child or an insane person
because they are incapable of conceiving the nature and consequences of their
acts.
(7) Ownership is residuary in character.I
(8) The right to ownership does not end with the death of the owner
instead it is transferred to his heirs. · '
Subject-matter of Ownership
. Ordinarily, the subject-matter of ownership consists of material objects
hke land, chattels etc. The wealth and assets of a person such as interests in
the land, d~bts due to him, shares in ·a company, patents, copyrights etc. may
also be subject-matter of ownership. Thus intangible rights may also constitute
subject-matter of ownership. ·
Salm~nd has supported the view that besides material objects,' rights may
also be subJect-matter of ownership though a man is said 'not to own, but to have
a right'. From this point of view, many rights cannot be considered as subject-
matter ?f owne~s~1p. For ex~ple, every one has a right of speech or right of
reputahon but 1t 1s never said that he owns these rights, nor can he alienate
them. · .
Ownership of Material Things :
. The owner of a ~at~rial o~ject is he who owns a right to the aggregate of
its uses. Thus ownership IS the nght of general use. This need not be absolute or
unlimit~d use. He who has mer~ly a specific limited right to use, such as right
of way, 1s n~t ~e ow~er of _the thm_g but merely an encumbrancer of it. The right
of o~ners~1p ts an mher_1table right. In short, the right of ownership in a
material thmg may be defmed as the general, permanent and inheritable right
to the user of a thing. 2
It m~st also _be . ~tated that although material objects form the subject-
ma~er of ownership but there are certain exceptions to this general observation
For mstance, wild animals living in forests cannot be owned. Likewise, since
slavery has now been abolished, living persons cannot form the subject-matter
of ownership. Again, the air, the sea, the sun, the moon, the stars, corpses etc.
cannot be owned. . .
Acquisition of Ownership
. . From the point of view of acquisition of ownership, things may be of two
km~s, namely,. things ov~r which no one has ownership, they are called res
nul~zus, and their ownership can be acquired by possession. But there are things
which are already owned by someone, the ownership over them can be acquired
by derivative method.
According to Salmond, ownership can be acquired in two ways : -
( 1) By operation of law; and
1. (supra ) Salmond's definition.
2. Fitzgerald P.J.: Salmond on Jurisprudence (12th ed) P. 415
( 448 . JURISPRUDENCE AND LEGAL THEORY
(2) By reason of some act or event.
·· A person can become the owner of certain property by the operation of law
r such as the law of intestacy or bankruptcy. It can also be acquired by reason of
an act or event such as taking or making a thing for the first time. Both these
· cases involve original acquisition of ownership since new owner derives the
title from his predecessor. · .
There are three generally known modes of acquisition of ownership,
namely, (1) absolute, (2) extinctive, and (3) accessory.
Ownership is absolute when it is ac~uired. over_ th~g ~hich prev:iously
belonged to no one, i;e., which are res nullzus. It 1s extinchv~ 1f ownership ~fa
previous person has terminated by reason of adverse posse~s10n by the acqwrer.
Ownership is accessory if it is acquired as a result of accession, e.g., o~er of an
animal has right to its off-springs or the owner of a tree has the right to the
fruits of the tree.
Absolute ownership can be acquired either ~y 'o~cupation' •. <?r
'specification'. The rule regarding res nullius (owne~less thin~s) .1s that the first .
finder or occupier becomes its owner. For occupa~on, p~ys1cal ~ontro~ of t~e
thing is necessary. For example, ownership over ~1ld ~m~als, birds, fishes m
rivers and ponds, precious stones etc. can be acquired m this way. In Engl~n~,
•hidden treasure belongs to the Crown whereas under the Roman la~, 1t ts
equally divided between the finder and the owner of the place where 1t was
found.
In case of specification, the material belonging to one person is given a new
shape by another person, e.g., a sculptor making a statute out of clay collected
from other person's land.
Salmond thinks that the concept of ownership is changing with social
changes. He pointed out that in ancient times the right of o~nership ~as
regarded as exclusive and absolute but in _m~dem ~me there 1s a _growing
tendency to restrictl the right of ownership in the interest of ~oc1ety. ~e
present day restriction on land ownership and greater empha_s1s on pub~1c
ownership in ·place of private ownership clearly support _this _view. I~ India,
nationalisation of railway banks, coal-mines and maJor mdustnes and
encouragement to public limited companies furt~er show t~at there has been a
shifting trend towards giving primacy to pubhc ~~nership and ~t the s~me
time to restrict private ownership. More recei:1t1y, 1t is how:ver, being realised
that public ownership is not necessarily a satisfactory solution to the problem,
the reaso:a being that it has brought about a division between management and
ownership which has retarded the development of national economy. 2
Accession.-The right of ownership may also be obt~ined withou~ an act
of possession, which is called acquisition of ownership by access10n. In
1. Salmond On Jurisprudence, (12th ed.) p. 253. . .
2. The disinvestment policy (i.e., privat_isat_ion of Pubhc Sect?r Undertakings) adopted by the
Government of India in recent years 1s directed towards this end.
OWNERSHIP
449
ownership by ·accession, the owner of the principal object also becomes the
owner of its acce~sory. It is possible in three ways : - _
· . (i) When_immovables ac~ede to immovables.-The right of the riparian
wh10 he acqwres due to alluv1on due to soil being carried away from bank of
the n~er to another, provides the best ill~stration of this mode of ownership by
accession. The river bed so-formed by alluvion is then shared by the riparian
proprietors whose land falls in adjoining the .river bank and they become the
owner of the soil so formed.
(ii) When movables may accede to immovables.-Creating right c;,f
ownership. For example the trees and crops are separable from the soil in
which they are planted and therefore, with the transfer of ownership of that
land or soil, the immovables like trees, crops etc. the tr~sferee also becomes
the owner thereof due to accession.
(iii) When movables accede to movables.-The simplest example is that
owner of a garment also acquires ownership of the embroidery on it or the owner
of a car also has ownership of tyres and tubes therein, with him.
Different Kinds of Ownership
The right to ownership is generally exclusive, immediate, unconditional
and beneficial. It is, however, not necessary that all these elements must be
present in ownership. Therefore, there may be different kinds of ownership
depending on the existence or absence of any of these elements in it. For instance,
if a person does not have exclusive right of ownership over a thing and there
are more than one owners of that thing, then each of such owners would be its
co-owner. Likewise, if the ownership is dependent upon a certain condition,
then it would be called conditional ownership.
The different kinds of ownership can be explained under the following
heads:-
1. Corporeal and Incorporeal Ownership.-TI1e ownership of material
objects is called corporeal ownership whereas ·the ownership of right is called
incorporeal ownership. Thus the ownership of a house, table, land, machinery
etc. is corporeal ownership and the ownership of a copyright, patent, trade-
mark, right of way etc. is incorporeal ownership. Pollock points out that the
ownership is ·a right to the entirety of the lawful uses of a corporeal thing.
Corporeal things are those which are tangible, that is, which can be perceived
and felt by the senses while incorporeal things are intangible and cannot be
perceived and felt by senses. For instance, if I own a ruper in my pocket, I have
corporeal ownership over it but if I have a right to recover some money from my
debtor, the right to receive is incorporeal. The former is chose in possession
while the later is called chose in action. (chose literally means a •e1ing').
Incorporeal ownership includes ownership over encumbrances etc.
Salmond thinks that the distiction between corporeal and incorporeal has
merely a theoretical significance because in either case, the content of
450 JURISPRUDENCE AND LEGAL THEORY
i
ownership is the right vested in the owner and not the material object. The
ownership of a material object is in fact ownership of a right to own it.
2. Sole Ownerthip and Co-ownership.-When the ownership is vested in
a single person, it is called sole ownership; when it is vested in two or more
persons at the same tftne, it is called co- ownership, of which co-ownership is a
specie. For example, the members of a partnership firm are co-owners of the
partnership property, The usual consequence of a co-ownership is the existence
of reciprocal obl.ig,~ons and restricted use and enjoyment.
Co-ownership may be of two kinds-i.e., ownership in common and joint
ownership. Acc~rding to Salmond, the main difference between these relates to
the effect of death .of one of the co-owners. In case of ownership in common, the
right of the decea.s ed passes on to his successors like other inheritable right; but
in case of a joint ownership, if one of the two joint-owners dies, his right of
ownership also diet with him (i.e., extinguished) and the survivor becomes the
sole owner by virtue of his right of survivorship.1 For instance, where a
property belongs to A and B in equal shares and if it is a case of ownership in
common, on the death of A, half of the property will pass on to the heirs of A
and the other half will remain with B. But if in the same case, A and B are
joint owners, 'B' would be entitled to whole of the property and .the heirs of A
will get nothing.
A joint ownership occurs when two or more persons are entitled to the same
right or bound by the same obligation in respect of a thing. For example,
partnership property is owned by the persons constituting the firm jointly and
trustees are the join~ owners of the trust property. The essence of the conception
is that there is only one right and one obligation, so that anything which
extinguishes such right or obligation, releases all parties.2 But in case of a co-
ownership, extinction of such right does not release the remainders.
· /Under the Indian law, a co-owner is entitled ·to three essential rights,
namely, (1) right to possession; (2) right to enjoy the property; and (3) right to
dispose of. Therefore, if a co-owner is deprived of property, he has right to be
put back in possession. Such co-owner has interest in ~very portion of property,
and has a right, irrespectiye of his quantity of share, to be in possession jointly
with other co-owne:rs. cq.::.ownership is also called joint ownership.
When the type of co-ownership is not specifically stated by default, it
becomes tenancy-ifl.-common and each tenant in common has a separate
fractional interest il'\ the entire property.
The most attractive feature of 1k joint tenancy is right of survivorship.
After the death of one of the joint tenant, his interest in the property
immediateJy passes to surviving joint tenants and not to discendants of the
estate. Each joint tf¼nant may occupy entire property subject only to right of
1. Right of survivor~hip is called jus accrescendi.
2. Kendall v. Hamil~n, 4 AC 504.
OWNERSHIP 451
other joint tenants. The interest of joint-tenants must have four unities, namely,
(1) unity of time; (2) unity of possession; (3) unity of title; and (4) unity of
interest in enjoyment or use of property.
It is significant to note that the Hindu·law generally recognises common
ownership and the members of Hindu joint family have a right to acquire the
property of the deceased by succession. Joint ownership is also called tenancy-
in-common where the property devolves by the rule of survivorship.
3. Trust Ownership and Beneficial Ownership.-Yet another peculiar
spedes of duplicate ownership is trust ownership in which property is owned
by two persons at the same time. The relation between them is such that one of
them is under an obligation to use his ownership for the benefit of the other.
The former is called the trustee and his ownership is trust ownership, while
the latter is called the beneficiary and his owl).ership is beneficial ownership.
The ownership of the trustee is a matter of form rather than of substance, it is
nominal rather than real because he is deprived of any right to the beneficial
enjoyment of the trust property.
According to Salmond, the purpose of trust ownership is to protect the
rights and interests of persons who for any reason are unable to protect them
effectively for themselves. The main classes of persons in whose behalf the
protection of trust is created are as follows :-
1. Unborn persons whose rights and interests are to be protected;
2. Persons under some kind of disability, such as infancy, lunacy etc., and
are incapable to safeguard their own interests in the property.
3. Several persons having common interest in the property, that is, the co-
owners of the property.
4. Persons having conflicting interest over the same· property. Such
property is entrusted to the trustees and the law vests in them the rights and
interests for safe custody so that it is protected from destruction or ruin.
The origin of the trust ownership 1 can be traced back to the law of equity
in England. The interests of the beneficiaries (cestui que trust) were not legally
recognised under the common law. Therefore, the Court of Chancery recognised
trust ownership under the equity law and thus extended protection to the rights
of the beneficiaries. The trustee could use the trust property only in the interest
of the beneficiary and not for his own interest.
The interest in trust ownership and also in the beneficial ownership can be
transferred. The trustee can alienate the trust property even without the
consent of the beneficiary provided such an alienation is in the interest of the
beneficiary.
The creation of a trust separates the trust ownership of the property from
the beneficial ownership of it and vests them in different persons. The
1. Professor Campbell suggests the use of the term 'bare ownership' in place of trust
ownership-(1940) 7 CLJ 217 (218) .

452 JURISPRUDENCE AND LEGAL·THEORY
i The other points of difference between trust and ·agency are as follows :
extinction or revocation of a trust, however, 'reunites both these ownerships in
the same person. · (1) At law, the trustee is the owner of the property which he administers
Trust and Contractual Relations
. Salmond distinguishes a ·trust from a mere contractual obligation th~ugh
there is a close resemblance between the two. I~ the first place, a trust is
different from a mere contractual obligation to "deal with one's property on
behali of someone else. A trust is more than an obligation to use one's property
for the benefit of another. The beneficiary has more than a mere personal right
against the trustee to the performance of the obligations of the trust. He is
himself an owner of the property and therefore, he also owns what the trustee
. owns in the trust. The difference between trust and a contractual relation may
briefly be stated as follows :
(1) Historically, contracts were enforceable by the common law, while
trust fell under the exclusive jurisdiction of equity law administered by
the Court of Chan~ery.
(2) Though generally the trust also originates from an agreement by two
persons like a contract but sometimes it may be created by a unilateral
act when tl}e author of the trust binds himself by a trust by his own
declaration or conduct, whereas the beneficiary may know nothing
about it.
(3) Even where a trust is created by a bilateral act, no· formal offer or
acceptance between the parties is necessary, as in case of a contract. The
trustee's acceptance is presumed unless he disclaims, either by conduct
orby deed.
(4) The rule that a stranger to a contract acquires no right and incurs no
liability in · a contract, has no application to trust. The beneficiary of
the trust property is not a party to trus! deed. . Keeton has observed that equitable ownership always pre-supposes the
(5) Contractual relation give rise to a right in personam, available only
against the promisor, the right of beneficiary in case of a trust
resembles a right in rem which is enforceable against all persons except
a bona fide purchaser for value.
Trust and Agency
A trust has to be distinguished from the relation in which an agent stands
towards the property which he administers on behalf of his principal. Though
in substance, ·the two relations appear to be similar but they differ in form and
legal consequences. In case of an agency, t~ .e property is vested solely in the
principal on whose behalf the agent acts, but in trusteeship it is vested in the
~stee as well as in the beneficiary and both are owners of the trust property.
That apart, a trustee stands on a better footing than an agent so far as third
persons are concemed. 1
1. Salmond on Jurisprudence, (12th Ed.) p. 256.
·oWNERSHIP. 453
but the agent is not the owner of property which actually belongs to the
principal. Therefore, an agent cannot pass legal title to a ;third person
even if he is a purchaser for value without notice. .•
(2) The trustee is the legal owner and, therefore, he is personally liable for
all the contr~cts relating to trust. But an agent enters into a; contract on
behalf of his principal and hence, he is not personally liabie.
(3) Agency arises from an express or implied contract to act fo~ some other
person and property may not be involved in, it at all. It is not so in case
of a trust .
4. Legal and Equitable Ownership.-Closely connected but not identical
with the distinction between trust and beneficial ownership is the distinction
between legal and equitable ownership. Sometimes one person may be the legal
owner and another the equitable owner of the same thing or right at the same
time. Legal ownership is that which has its origin in the niles of common law
whereas equitable ownership proceeds from the rules of equity. In many cases,
equity recognises ownership where law does not so recognise it owing to some
legal flaw or defect. For example, when a debt is verbally assigned by A to B, A
remains the legal owner of it but B becomes the equitable owner of it. Thus the
debt is only one although now it has two owners. This illustration shows that
the distinction between legal and equitable ownership is altogether different
from the distincpon between legal and equitable right. Inthis case the right of
both, A and Bare legal rights but the ownership of A is legal _w hile that of Bis
equitable. In substance it may be said that equitable ownership of a legal right
is different from: the ownership of an equitable right. Likewise, the ownership
of an equitable mortgage is different from the equitable ownership of a legal
mortgage.
existence of a legal ownership, the legal owner being restrained by the rules of
equity from using his legal ownership to the detriment of the equitable owner.
Conversely, a legal ownership does not necessarily imply the existence of an
equitable owner.
5. Vested and Contingent Ownership.--Ownership may either be vested
or contingent. In vested ownership the title of the owner is already perfect
while in contingent ownership his title is as yet imperfect but it is capable of
becoming perfect on the fulfilment of some conditions. In the former, the
ownership is absolute, in the latter, it is conditional. For instance, a testator
may leave property to his wife for her life, and on her death to A, if he is then
alive, but if A is dead. to B. Here A and B are both owners of the property in
question, but their ownership is merely contingent. The ownership of A is
conditional on his surviving the testator's widow; and that of B is conditional
on the death of A during the widow's life-time. 1
1. Shashikantha v. Pramod Chandra, AIR 1933 Cal 609.
- - - - -- - -- --- - ~
 454
JURISPRUDENCE AND LEGAL THEORY
It. must, however, be stated that cot;1,tingent ownership of a thing is
something more than a simple chance or pos·sibility of becoming an owner. It is
more than a m~r~ _spes acquisitionis. ~ ~~ntingent ownership is based not upon
th~ mere poss1~1hty of future acqu1s1tion, but it is l?ased upon the present
existence of an inchoate or incomplete title.
The distinction between vested and contingent interest can be summarised
thus:-
1. A_ vested interest creates an immediate right and it does not depend
upon fulfilment of any condition. But a contingent interest is solely dependent
upon the fulfilment of a condition. If the condition is not fulfilled, the interest
comes to an end.
2. A vested interest is not defeated by the death of the transferee before
he obtains possession. But a contingent interest cannot take effect in the event of
the death of the transferee before the fulfilment of the condition.
. 3. ~ vested interest is transferable and heritable, whereas a contingent
interest 1s not transferable or heritable.
4. If the ~rans~eree of _a vested interest dies before actual enjoyment, it
passes on to his heirs, but 1f a transferee of a contingent interest dies before
actual enjoyment, the interest does not pass on to his heirs, because such interest
is inalienable and incapable of descending to his heirs. . of the condition.
. 5. A vested interest is an existing immediate right even though its
~nJoyment may be postponed. A contingent interest is not a present right since it
1s dependent upon a condition which, if not fulfilled, shall ·render the interest
null and void. Thus for irtstance, if a Hindu widow adopts a son but there is an
agr~ement postponing the estate of the son during the life-time of the widow, .
the interest created in favour of the adopted son is a vested right. It does not
depe~d upon_ any _condition precedent, therefore, the adopted son has a present
proprietary nght m the estate, though the right of possession and enjoyment
may be deferred until the death of the widow.
Condition Precedent and Condition Subsequent·
Contingent ownership may either depend on ·condition precedent or
condition subsequent. · .
. . A condition precedent is one by the fulfilment of which an inchoate title is
con:ipleted. A condition subsequent, on the other hand, is one on the fulfilment of
wh1c~ a title already completed is extinguished. In the former, a person
acqmres absolutely what he has acquired conditionally. In the later, a person
loses absolutely what he has already lost conditionally. An illustration would
f~rth~r make the dis~ction cl~ar. A testator makes a will of his property to
h~s wife, on the ~ond1tion that 1f she remarries, the property would pass on to
his sons. Here ~1fe's re-marrige is a condition subsequent in'respect of her own
vested o~nersh1p, but it is a condition precedent in respect of the contingent
0
_wnershtp of the sons. In case the wife remarries after the death of the testator
(z. e., the husband), she would be divested of her vested ownership and the
455··,., .,
OWNERSHIP
i,
contingent ownership of the sons shall become vested ownership .and they
would acquire an absolute right over the property. .
It must, however, be noticed that ownership subject to condition subsequent
is not contingent but vested. A contingent ownership, on the other hand, is that
which is not yet vested, but may become so in future; while ownership subject to
a condition subsequent is already vested, but may be divested in future, such
ownership is not contingent but liable to be extinguished by a divestative fact.
A condition precedent differs from a condition subsequent in following
aspects:-
(i) A condition precedent preceds the creation of an interest but in case of
condition subsequent the interest is created first and the condition subsequent
operates and divests it afterwards.
(ii) In the case of condition precedent, the vesting of the interest is
postponed till the compliance of the condition but in condition s•.1bsequent the
vesting on interest is complete and not postponed.
(iii) An interest once vested can never be divestd by reason of non-
fulfilment of a condition precedent, but in the case of condition subsequent, an
interest, even though vested, is liable to be divested by reason of non-fulfilment
(iv) An estate is not vested in the grantee until the condition precedent is
fulfilled but it is not so in case of condition subsequent. Here, the estate
immediately, vests in the grantee and remains in him till the conditi<:m is
broken.
(v) In the case of condition precedent, transfer will be void if the condition
precedent is impossible to perform, or immoral or opposed to public policy. But
in case of condition subsequent, the transfer becomes absolute and th<: condition
will be ignored if that condition is impossible of performance or immoral or
opposed to public policy.
(vi) The doctrine of cypres applies in case of condition precedent but it
does not apply in case of condition subsequent.
Conditional Limitation
A conditional limitation consists of a combination of a condition precedent
and condition subsequent; it is one containing a condition which (i) divests an
estate that has vested, and (ii) vests it in another person. As regards the prior
interest, it is a condition subsequent, but as regards the ulterior interest, it is a
condition precedent. For example, a gift of a house may be made to 'A' with a
condition that if he divorces his wife, the house will go to 'B'. Here as far as
'A' is concerned, this is a condition subsequent, because he gets the house
immediately, subject' to be divested of it, if he divorces his wife. However, so
far 'B' is concerned this is condition precedent, because until 'A' divorces his
wife, the house will not vest in him (i.e., 'B')
456 JURISPRUDENCE AND LEGAL THEORY
6. Absolute and Limited Ownership•....J.~~ all the rights of o~ership,
i.e., possession, enjoyme~t and disposal are vested in a person without any
restriction, the ownership is absolute. But when there are restrictions as .to user,
duration or disposal, the ownership will be ·c alled a limited ownership. For
example, prior to the enactment of the Hindu Succession Act, 1956, a woman
had only a limited ownership over the estate because she held the property
only for her life and after her death, the property passed on to the heir last
holder of the property.
7. International Ownership.-With the progress of scientific discoveries
and development of closer international relationship among nations~ the
problems of territorial, naval and aerial ownership rights violations have
assumed new dimensions and therefore, the issue of international ownership
constitutes one of the important areas of discussion.
The ownership of territory may be acquired either originally i.e. res
nullius or derivatively that is, by accession, conquest or cession etc.
Each State enjoys right of dominium over its own territory: The dominion
and jurisdiction of a State are both circumscribed by its territory, but both these
rights are not coextensive dominion of a state is circumscribed by its
geographical territory, whereas its jurisdiction may extend beyond the limits
of its dominion such as ships carrying its flag upon the high seas. The
jurisdiction of a State is artificially restricted by 'extra-territorality' in
relation to certain persons or things, notably foreign sovereigns, ambassadors,
war-ships, etc.
The latest developments in techniques of air-space, cyber-space,
telecommunication net-works etc. have generated new problems of right of
ownership over them despite the intensive efforts that are being made to
tackle these issues at the international level by mutual co-operation between
the States. A uniform model law providing for regulation of international
ownership rights, is therefore, urgently needed to resolve the complicated
issues in this regime.
Significance of Ownership in the Modem Social Context
Dr. Friedmann writes that the concept of ownership has exerted
considerable influence as a source of social power in various stages of the
development of society. Professor Renner has traced the gradual evolution of
'ownership' in its social perspective. He pointed out that in early stages of
development of society the owners of industries had to themselves collect tools,
raw material and labour resources to run the industry and they earned huge
profits by the sale of their products. When they amassed sufficient wealth,
they. could afford to hire labour and run the industry by providing tools and raw
material to them. The industrialist was still the sole owner of the goods so
produced and had complete ownership of the profits earned by the industry.
Thus the ownership of means of production became the source and symbol of
power and social status which the industrialists enjoyed on the strength of the
OWNERSHIP 457
labour working under them. This evenhially led. to the development of ·
management-labour relationship in the field of industries. The power of the
employers to .sa~k and change the service conditions of ~orkers arbitrarily
exhibited their influence in the society as a dominant class. However, in course
of time, th~ labour movement raised voice against the exploitative tendencies
of industrialist's and capitalists as a result of which 'public ownership' gained
primacy over private ownership. 1 The policy of nationalisation of industries
adopted by progressive socialist countries :is directed towards the fulfilment of
this objective.
Dr. Friedmann attributes three main reasons for the declining influence of
private ownership in modem social order. ,·
Firstly, the gap between employer and labour class is gradually narrowing
down due to trade union movement, nationalisation of industries and national
insurance schemes and now the employers can no longer exploit the workers by
misusing their power. As a result of this, the bargaining capacity of both the
enterpreneurs and the workers is more or less equal.
Secondly, The profiteering by industrialists has been considerably
regulated through legislative measures and effective tax-laws. The
industrialists are now required to contribute a considerable part of their income
and profit to the public fund of the State. This has helped in equitable
distribution of wealth. 2
Thirdly, the encouragement provided to the corporate sector in recent
decades has helped in separating the "power element" from ownership. During
the capitalistic era, both-ownership and power . were centralised in the
industrialists which was detrimental for the labour class. But today, the real
power vests in the management comprising experts in their respective fields
and the owners are divested of this power. Thus "power" has been separated
from the "ownership'. Further, in order to ensure that the management does not
misuse their power and authority, comprehensive company legislation and
labour and industrial laws have been enacted by almost all countries.3
Dias and Hughes have observed that in order to appreciate the role of
ownership in the present social order, its formal analysis shall not serve any
useful purpose, instead there should be greater emphasis on its functional
analysis. 4
Modes of Acquisition of Ownership
Broadly speaking, there are two modes of acquiring ownership, namely,
(1) Original, and (2) Derivative.
1. Renner : Institutions of Private Law and their Functions (1949) edited by Kohn Freund.
2. Directive Principles of State Policy as contained in Art. 39 (b) & (c) of the Constitution of
India.
3. National Textile Workers v . P.R. Ramkrishnan, AIR 1983 SC 75; Workers of Rohtas Industries v.
Rohtas Industries, (1987) 62 Comp. Cas. 872.
4. Dias & Hughes: Jurisprudence (1957) p. 346.
458 JURISPRUDENCEAND LEGAL THEORY . OWNERSIDP 459

1. Original Acquisition of ownership takes place when ownership is
acquired by some personal act on the part of th~ acquirer. It may by three ways:
(a) Absolute.-When a thing is acquired res nullius, i.e., which has no
previous owner.
(i) Occupatio.-This has been called Parigrah by Mar.u who stated that
the first striker of an arrow _to a prey whether a bir<:f or a wild animal, becomes
its owner.
(ii) Speci/icatio.-Original acqusition of ownership may also be by
specificatio which .means a person by working up on material belonging to
another makes a new thing. For example, if a sculptor makes a statue from the
clay belonging to another, he becomes the original owner of that statue.
(b) Extinctive Acquisition of ownership, that is when a person by some act
on his part extinguishes the ownership of the previous owner and acquires its
ownership himself, it is called extinctive acquisition. For example, acquisition
of ownership by prescrption or adverse possession for a prescribed period which
is 12 years in India.
·- . ·r~eives-the r~9~tion and protection from the law of the State, but possession
may-be exercis~ and realised even without such recognition or p~otection from
the law. Thus own4:rship has the guarantee of law but possession has some
measure of security and value from the facts, without any possibility of support
from 'law.1
According to Dr. Sethna, the relations~ip between ownership an?
possession is same as that of body with soul. Just as existence of body 1s
necessary for the realisation of soul, likewise possession is necessary and useful
for the expression of the ownership because it (possession) is external and
formal.
There may be ownership without possession as in case of a debt whic~ is
capable of being owned but not possessed. Conversely, there may be posses~1on
without ownership _such as patent, copyright, trademark etc. Generally, nght
in rem may both be -owned and possessed but right in personam may only be
owned but not p,98sessed.
000

(c) Accessio.-This is called accessory acquisition that is, when the

ownership of a property is acquired by way of accession to some existing
property. Examples are produce of land or animals or fruits of trees. Manu has
termed this mode of acquisition as Prayog which means acquiring by accession.

2. Derivative Acquisition.-When ownership is derived from a previous

owner, it is called derivative acquisition of ownership. It takes place when
ownership is acquired by inheritence or gift or purchase etc. In the Indian
context, the law of succession, transfer of property, sale of goods etc., regulate
acquisition of ownership of the property by derivative inode.

Ownership and Possession-Distinguished

Ihering rightly pointed out, "possession is the external realisation of
ownership". Possession is de facto exercise of a claim; owner~hip is the de jure
recognition of it. This means, possession is in fact while ownership is in the
form of a right. For example, a rented house is actually in possession of the
tenant but the ownership of it is vested in the landlord.
Possession is the external evidence of ownership. The possessor of a thing
is presumed to be the owner of it and may put all other claimants to prove their
title. Long possession is a source of ownership.
When possession is held adversely to the true owner for a period
prescribed by the law (generally 12 years), the true owner's right is
extinguished and a title is created in the adverse possessor as he acquires it by
right of prescription due to lapse of the specified time.
Bringing out distinction between possession and ownership Salmond
pointed out that a person is said to be the owner of a thing when his claim 1. Fitzgerald P.J. : Salmond on Jurisprudence, (12th ed) p. 293.

. \
20
; TITLES
Every right in its widest sense:; includes privileges, powers and immunities
and "involves a 'title' or source from which it is derived". As Salmond rightly
pointed out, 'title' is the de facto antecedent, of which the right is the de jure
consequent". The law confers a right upon a person because of certain facts
which are true of him but not as regards other persons. These facts are the title
of that right. There are certain rights which a person acquires by birth,
namely, right to life, liberty, reputation etc. whereas there are others which
the man acquires for himself, e.g., by contract, judgment of the Court or other
transaction. Thus a right may either be vested in a person or he might derive it
from some other source. In either case, there must be some basis of fact from
which it emanates or takes its roots. 1
Definition and Nature of Title
The term 'title' has originated from the Roman word titulus which was
called 'titre' in the French law. Salmond holds that title is the fifth element
of a legal right. He says 'title' is a source the product of which is a 'legal
right'. However, Holland does not accept title as an element of right. He opines
that title is that source from which a right originates. To quote him, "A fact
giving rise to a right has long been described as title, but no such well-worn ·
equivalent can be found for a fact through which a right is transferred or for one
by which a right is extinguished".
Austin contends that title is not the right itself but it is merely an element
of right. According to him, title connotes the existence of an investigative fact
while right indicates power or capacity conferred on a person and is founded in
title.
Jeremy Bentham has criticised Salmond's definition of title and opined
that title consists of those facts from which a right proceeds but it does not give
expression to those facts which account for extinction of a right.
Ju~tice Holmes observed that title means any fact which creates a right or
duty. To quote his own words, "every right is a consequence attached by the law
· to one or more facts which the law defines and wherever the law gives anyone
special right, not shared by the body of the people, it does so on the ground that
certain special facts, not true of the world, are true to him". In simple words,
1. Fitzgerald, P.J. : Salmond on Jurisprudence, (12th ed.) p. 331.
( 460)
TITLES 461
atle consists of certain investigated facts which form the basis of right or
ownership. ·
From the above, it may be infer(ed that a title means a set of facts or
events by reason of which.a right has become the subject,-matter of ownership.
· Thus, title is as vested fact which links a person and an object.
The facts comprising a title may either · be essential, being necessary to
constitute the legal transaction, or they may be incidental being an accessory to
the main or essential facts. The incidental facts provide evidence of
transaction.
Classification of Fads Comprising Titles .
As already seen, titles are also called investitive facts as a consequence_ of
which a right becomes vested in the owner. It is, therefore, necessary to define
a fact. The term 'fact' means and includes:-
(1) anything, state of things or relation of things capable of being
perceived by senses;
(2) any mental condition of which a person is conscious. .
A fact m~y be physical or it may be psychological. For ~xample, sale of a
\ house or purchase of a bock is a physical_ fact. The psychol?gical fact refers to a
mental condition, e.g., intention to commit a theft or intention of the debtor not
\l to pay the debt of the creditor are psychological facts.
i Facts may further be sub-divided into acts and events. !he former being
I1 the movements of the will and the latter involuntary happenings of the world.
i For instance, when a person demolishes a building; it is an act, but w~en the
building falls due to an earthquake, it is an_ event. _Thus events m~y be sai~ to be
modifications in the material order of things without human intervenh~n or
alternatively, acts of individuals other than that of the person whose rights
are involved.
Facts establishing title may be of three kinds : -
(i) Vestitive, (ii) Investitive, and (iii) r:>ivestitive.
(i) Vestitive facts of titles are those whic~ have relation to ~ight_. They
relate to the creation, extinction and transfer of right. For exam~le, if I g~ve ~y
book to you, my right in the book is divested to you, th~! 1s, my nght is
destroyed and yours is created. These two are therefore, vest1.1ve facts.
· (ii) Investitive facts are otherwise called as titles as a_ r~sult of w~ic~ a
right comes to be vested in its owner. These may either be onginal or denvahve
titles.
'Original' titles create new rights, whereas derivative titles transfer a~
already existing right from one owner to a new owner. The catch~g of a fish 15
an original title of the right of ownership in the fish, for that did no! ~o .far
exist in any one. But, the purchase of fi~h is a deriva~ve title, because 1t 1s the
transfer of an old right and not the creation of a new nght.
462 JURISPRUDENCE AND LEGAL THEORY
i
(iii) Divestitive facts may. either be exthictive or alienative facts, that
is;they may either destroy rights or alienate them by transfer.
'Extin.ctive facts' are those which divest a right by e}(ttinguishing or
destroying the right itself, e g., the repayment of a debt. It divests the creditor
of his right to the debt by extinguishing the debt itself. Simil~ly, divorce is a
divestitive fact which destroys the conjugal rights. .
'Alienative facts', on the other hand, divest a right by alienating or
transferring it to some other person e.g. sale, gift etc. An assignment of a debt
divests the creditor of his right thereto by transferring it from creditor to his
assignee.
According to Salmond, divestitive titles and alienative facts denote the
same thing viewed from two different stand-points. The transfer of a right
involves. the investiture of a right in the transferee and a divestiture of the
right from the transferor. Hence what is a derivative title in the transferee is
an alienative fact with the transferor. Purchase is a derivative title, and sale
is an alienative fact.1
It is thus evident that vestitive facts create, extinguish and transfer a
right while investitive titles (facts) create rights and divestitive facts destroy
them.
A right which had no previous existence and has been created de novo
confers an original title, e.g., writing a new book or invention of a new design or
machine confers original title to copyright or patent right as the case may be.
It must be stated that in case of a transfer of a right, the same facts are
derivative, investitive as also alienative. The essence of vestitive facts or
titles is that they either create or extinguish or transfer a right from one person
to another.
Salmond has classified vestitive facts (titles) as shown in the following
table : -
Vestitive Facts (TITLES)
I I
lnvestitive facts ( or Titles)
I
Divestitive Facts ( or Titles)
I
I
I Collative facts
Original Titles Derivative Titles Alienative Facts Extinctive Facts
(Creation of Rights)
I (Destruction of Rights)
Transfer of Rights
Facts or titles may confer or take away rights. The expression 'Vestitive
facts' includes both investitive and divestitive facts. The facts which confer
1. Bentham calls these facts as 'translative facts'.
TITLES 463
rights are called investitive facts and those which cause the loss of rights are
called divestitive fact.
Derivative acquisition of title inay take place inter vivos or upon death.
In the former case, it is generally described as alienation or conveyance and
implies the concurrence of both, the alienor and the alienee. Derivative
acquisition of title upon death takes place by legacy <-}Ild succession.
Derivative title is lost not only by various forms of alienation, but by
abandonment or destruction of the object owned.
A transfer of right with reference to the transferee is a derivative title
whereas when considered with reference to the transferor, it is an alienative
fact because it involves loss of a right. Similarly, purchase is a derivative
title, but the same is also an alienative fact.
This classification has also been supported by Keeton. 1 The facts which
confer a certain right, are known as investitive facts. Salmond calls them
'title'.
Bentham prefers to use the term 'dispositive facts' instead of the word
title. He divides dispositive facts into three parts, namely, investitive facts,
divestitive facts and trauslative facts. Investitive facts may either be
collative or impositive. Collative facts confer rights and impositive facts
impose duties. He also sub-divides divestitive facts into destructive and
exonerative facts. Destructive facts extinguish the right whereas exonerative
facts release a person from duties.
Bentham's classification of dispositive facts, i.e., 'title' can be illustrated
as follows : -
Dispositive Facts
I
lnvestive facts or titles
I
lmpositive facts
Divestive facts
I
Translative facts
Destructive facts Exonerative facts
These different classes of vestitive facts correspond to the three chief
events in the life-history of a right, namely, its creation, its extinction, and its
transfer. By an original title a right comes first into existence, by an extinctive
fact it is wholly destroyed; and by derivative titles and alienative facts, the
1. Keeton, C.G.: Elementary Principles of Jurisprudence, p. 195.

464 JURISPRUDENCE AND LEGAL THEORY
\
existence of a right is in no way affected be'cause these are the same facts
viewed from different sides.
According to Bentham, the various ways of acquiring title to property
(objects or things) may be by (1) actual possession, (2) ancient possession in good
faith, (3) possession of the contents and produce of land, (4) possession of that
which the land supports or receives, (5) ameliorations of one's own property,
(6) exploration of mines in the land of another, (7) fishing in great waters, ·
(8) hunting upon unappropriated grounds, (9) consent, (10) succession, (11)
testament etc.
Salmond further observed that vestitive facts, that is, .creation, transfer
of extinction of rights may either be voluntary of it may be involuntary. In
other words, vestitive facts may either operate in pursuance of the will of the
person concerned, or independent of it. · words, an agreement is a much wider term than a contract. Therefore, all
Acts in the Law
Acts in the law are voluntary facts of the parties which create, transfer or
extinguish rights. They are motivated by express will of _the parties.
Acts in the law are of two kinds which may be distinguished as unilateral
and bilateral. The unilateral act of the law is one in which there is only one
party whose will is effective, e.g., a testamentary disposition, the exercise of a
power of appointment, the avoidance of a voidable contract, breach of
covenant, forfeiture of a lease etc. A bilateral act, on the other hand, involves
the consenting will of two or more distinct persons, as for example, a contract, a
mortgage, a lease. The acts in the law are referred to as juristic acts by some
writers.
It must, however, be pointed out that at times the same act in law may be
unilateral with regard to some parties and bilateral with regard to others. For
instance, where A entrusts property to B·in trust for C, the conveyance is
bilateral so far as A and B are concerned but it is unilateral .as regards C. It is
quite possible that C may even not have the knowledge of the conveyance and
the creation of the trust.
Acts of the Law
Acts in the law may, however, be distinguished from acts of the law. An
act of the law is the creation, extinction or transfer of a right by the operation
of law itself, independent of any consent thereto on the part of the person
concerned. For example, by devolution of the property of a person dying
intestate or a decree of insolvency by a competent court against a person. Thus it ·
would be seen that all voluntary acts of parties are 'acts in the law' and
involuntary acts are 'acts of the law' .1
1. Federick Pollock : Jurisprudence, (6th Ed.) p. 144.
TITLES .
465
Acts -
.I I
Acts in the law Acts of the law
I
.I . I
Voluntary Involuntary
I
Unilateral Bilateral
Bilateral acts are called I Agreements'
Bilateral acts in the law are called agreements in the wide and generic
sense of that term. They create rights in personam by way of consent.
Agreements are ·synonymous with contracts in a specific legal sense. In other
contracts are agreements but all agreements are not contracts. An agreement
becomes a co~tract when there are competent parties consideration, free consent
ai:1d legal object. According to Anson, a contract is that form of agreement which
direct~y contempl~tes and creates an obligation. In every civilised society,
great importance 1s attached to agreements which are bilateral vestitive acts
in the law, because they are evidence of right and justice and parties adjust
their rights and liabilities by their mutual consent. Salmond attributes three
main. reasons for the importance of agreements in law : -
(1) A great majority of rights and duties have their origin in
agreements made by mutual consent of the parties.
(2) An agreementis the evidence of right and is also constitutive of it.
. When persons have agreed to a deal by mutual consent, law may
safely presume that justice has been done and the interests of the
parties concerned are satisfied.
(3) Agreements being constitutive of rights in most cases, they
guarantee to men the fulfilment of their reasonable expectations.
As Salmond rightly pointed out "expectation is of predominant
influence in the determination of the rule of right and of all the
grounds of rational expectation, there is none of such general
importance as mutual consents". 1
There is an analogy between agreement and legislation from the point of
view of their functions. Both of them discharge almost the same function but
through two different channels. Legislation is the public declaration of rights
and .duties of the subjects whereas ·an agreement is a private declaration of the
respective rights and duties of the parties concerned. Generally, agreements are
enforced by law-courts and they are the best evidence of justice between the
parties. The most significant feature of an agreement is that the obligations
1. Fitzgerald, P.J.: Salmond On Jurisprudence, (12th ed.) p . 339.
 JURISPRUDENCE AND LEGAL THEORY
466
.therein are self-imposed by the parties he~ce they are prepared to bear the
burden of them more happily than those imposed by legislation.
Kinds of Agreements
· Agreements are divisible into four distinct classes depending upon
- whether they create, transfer or extinguish a right.
· t. Contracts~--Agreements which create rights and obligations·among the
parties in personam are called contracts. Accord~g to Salmond, contracts are
ordinarily bilateral but there are some unilateral contracts a~ ~ell, e.g.~ when
a promise is ·made by one party and accepted by other, 1t 1s a unilateral
contract.
2. · Grant.-A grant is an agreement which creates a right other than
contractual rights, e.g., grant of a lease, an easement right, a chai;ge, licence etc.
In short, grants are specific varieties of conracts.
3. Assigriment.-Agreements which transfer a right are called
assignments.
4~ Relea~e.---Agreements which extinguish a right are called rele~se, e.g.,
surrender or discltarge.
The above classification of agreements should not mislead one to belief
that an agreement falling in any one of the above categories cannot coincide
with the other category. There are certain agreements ~f a mixed nature, which
may fall within two or more of these classes at one and the same time. For
instance, the sale of a specific chattel is at once both-a contract and an
assignment, for it -transfers the ownership of the chattel and at the same time
creates an obligation to pay the price. Again, a lease is both a grant and a
contract because it creates real and personal rights at one and the same time.
Thus it may be briefly stated that contracts and grants create a right,
assignme~t involves transference .of a right while release extinguishes a right.
Valid Agreements
-A valid agreement is one which is enforceable by the court of law. It is in
accordance with the true intention of the parties. An agreement to be valid must
comply _with the following conditions:-
(1), There should be two or more competent parties;
(2) The intention of the parties must be clear and acceptable to all of
them;
· (3) The parties must have communicated their intention to each other;
(4) The object of the agreement should be directed towards regulating
legal relationship between the parties; and
(5) The result of the agreement should have some effect on the parties'.
TITLES . 467
A promise made with mutual consideration is called a valid _agreement. In
other words, law requires th.at an agreement to be valid, must be for a valu:ahle
consideration. Such consideration, however, need not be adequate.I · ·
Invalid Agreements
An _invalid agreement is one which is not enforceable by law. Invalid
agreements may be void or voidable. Law does not give any recognition to void
agreements, they being a nullity. As againstthis, a voidable agreement is not a
nullity but its operation is conditional and not absolute. - · _
Void Agreements.-A void agreement is one which is totally devoid of
any legal effect. It has no legal existence whatsoever and therefore, ceases to be
enforceable by law. For example, a loan given to married woman to procure a
divorce and marry the plaintiff cannot be recovered and enforced by law
because of the immorality of the object in the agreement. _
The following agreements are also held to be void agreements : -
( 1) Agreements made by incompetent persons such as minors,2 lunatics
etc.
(2) Agreements made under a mutual mi~take as to the existence of a
fact relevant to the agreeme~t.
(3) Agreements of which object or consideration is unlawful.
(4) Agreements without consideration.
(5) Agreements in restraint of marriage.
(6) Agreements in restraint of trade.
(7) Agreements in restraint of legal proceedings.
· (8) Wagering agreements.
-(9) Agreements contingent on impossible events.
(10). ~gree~ents ·to do irnpossible acts~
(11) ~greements against public policy, m6rality,3 ~tc.
Voidable Agreements
A voidable agreement is o~e which_ is e~forceable by law at the option of
~.ne or_ more. of the parties thereto, but not at the option of the other or: others. It
1s vahd as long as it is not rescinded by the party entitled to ·do s<>. When
l. An agreement without consideration is void-Section 25 of the Indian Contract Act. There
are, however, certain exceptions to this rule.
2. Moharibibi v. Dharamodas Ghosh, ILR 30 Cal 539 (PC).
3. A landlord cannot recover the rent of his house which he knowingly let to a prostitute to ·-
carry on her ~oc~tio~. Ag?in, an agreement to pay monthly allowance to a woman for past or
future c~hab1t~hon 1s _void. -~ ag~e~ment to pay money upon consideration that plaintiff
w~uld give evidence m a civil Sutt m favour of the defendant, cannot be enforced being
v01d.
468 JURISPRUDENCE AND LEGAL THEORY
\ .
consent to an agreement is caused by coercion, fraud, misrepresentation, the
agreement is voidable at the option of those whose consent was so caused. 1
, Void and voidable ag.r eements may be classed together as invalid
agreements. The most important causes of invalidity of agreements are :-
(1) Incapacity, (2) Informality, ; (3) Illegality, (4) Error ~r Mistake,
(5) Coercion, and (6) Want of consideration. ·
(1) Incapacity.-Law requires that only persons who are compe~ent to
enter into a contract can create enforceable obligations. This means that under
the law certain persons are not competent to enter into contracts such as minors,
lunatics etc. Therefore, the agreements by them are void and invalid:
(2) Informality.-There are certain transactions ·and agreements which.
require certain formalities to be fulfilled to give them validity under the law.
For instance, a sale of immovable property of the value of Rs. 100 /- or more,
must be in writing.2 Many transactions are not treated as valid unless they are
registered and duly attested by the witnesses. Non-compliance. of these
formalities shall render the agreement invalid.
The object of prescribing certain formalities for certain types of agreements
is to ensure permanence, certainty and publicity to important specified
transactions and at the same time to .procure sufficient evidence as to the
intention of the parties.
(3) Illegality.-Though the law permits considerable freedom to persons
to enter into voluntary agreements, still certain restrictions are imposed on
parties to safeguard their .o wn interests and also the interests of public in
general. Thus parties have no freedom to enter into agreements which are
prohibited or declared -unlawful by the State law. For example, an agreement
to commit an offence shall be invalid and liable to be punished as conspiracy.
Agreements which ar~ against public policy are also prohibited by law. This is
expressed by the maxim privatorum conventio juri publico non derogat which
means that no one can enter into an agreement which is against public policy.
(4) Error or Mistake.-Agreements entered into under an error or mistake of
fact are void. Mistake for this purpose may be of two kinds, namely,
(i) essential mistake, and (ii) unessential mistake. Essential error is that
which is of such a nature as to prevent the existence of any real consent, and
therefore, of any real agreement. Such an error would render the agreement
completely void because there is no existenc':? of an agreement in reality. For
example, if A agrees to sell land to B, but A is thinking of one piece of land, and
Bis thinking of another, there is an essential error in this agreement, hence it is
wholly void. In this case, in reality there is no agreement at all, but it only -has
an external semblance of an agreement. 3
1. Section 19 of the Indian Contract Act, 1872.
2. Section 54 of the Transfer of Property Act, 1882.
3. Raffles v. Wichelhaus, (1864) 2 H & C 906; see also Philips v. Brookers Ltd., (1919) 2 KB 243.
TITLES 469
There is, however; an exception to this rule when the error is due to.
negligence of one of the parties and is unknown to the other. In such a case, the
party who is at fault shall be estopped by tts own carelessness from raising the
· defence of essential error and shall be bound by the agreement in the sense in
which the other party understood it.
As regards the unes·s ential .error, it does not vitally affect the nature and
contents of the agreement but only soine external circumstances serve to induce a
person to give his consent. Unessential error does not make an agreement
invalid. For example, if A agrees to buy B 's horse because he believes it .to be
sound, whereas in fact it is unsound, there is no essential error (error in
substimtia) and hence the agreement is not invalid. ·
The general rule therefore, is that an unessential error has no effect on the
validity of an agreement. The rule is, however, subject to an exception when
unessential error would make the agreement voidable at the option of ·the
mistaken party, if it has been caused by the misrepresentation of the other
party. Giving reason for this exception, Blackbum, J., i_n Smith v.· Hughes, 1
observed, "he who is merely mistaken is none-the-less bound for his agreement;
but he who is misled has a right to rescind the agreement so procured".
(5) Coercion.-For the validity of an agreement, the consent of the parties
should be free and voluntary. An agreement becomes invalid if the consent of
any of the parties is obtained by means of compulsion, undue .influenc:e or
coercion. Where the consent is the product of any form of coercion or undue
influence, the agreement will be voidable 2 at the option of the · party whose
consent was so obtained.
(6) Want of Consideration.-Consideration is an essential element of a
valid contract. It is the cause of a promise. A contract without corisideration is
void. 3 There are, however, three exceptions to this general rule, namely, (1) a
past-consideration is a good consideration in the Indian law4 ; (2) where a
contract made in writing and signed relates to a time-barred debt; and (3) where
the contract is made on account of love or affection between parties standing in ·
the near relation to each other.
A consideration, in its widest sense, is the reason, motive or inducement by
which a man is moved to bind himself by an agreement.
It is, however, not necessary that consideration should be adequate to the
promise. It is enough if it has some value in law. Anson observes that it is for
the parties fo decide the question of adequacy of consideration at the time of
making the· agreement, and not for the court, when it is sought to be enforced .
However, inadequacy of consideration may be an evidence that the promisor's
1. (1871) 6 QB 597 (607).
2. Section 19 of the Indian Contract Act.
3. Section 25.
4. Past consideration is no consideration under the English law and as such, the contract will
be void.
470 JURISPRUDENCE AND LECAL 11-IEORY
\
consent was not free, but it is no more in itself conclusive . .Inadequacy of
consideration when coupled with other circumstances such as fraud, oppression,
~isrepresentation, suppression of true value of the property, urgency of money,
1gnqrance etc. shall weigh powerfully with the Court to consider whether it
should set aside the contract or refuse to decree specific performance of it.
· Before concluding the discussion on agreements it must be stated that
freedom of contract which was once considered to be the basic element of law of
o~ligations arising in contract, has been subjected to rigid State regulations
with the change in that pattern of society. In capitalistic era there was
complete freedom of contract with regard to management of one's own affairs
but today in the socialistic pattern of society, .State can interfere in this
freedom or man's contract in public. interest. The land ceiling laws, rent control
enactments, food rationing laws etc., indicate that State exercises effective
control on man's freedom of contract in the interest of the community as a whole.
□□□
21
.PROPERTY
The concept of property occupies an important place in human life because
it is virtually impossible to live without the use of material objects which
constitute the subject-matter of property. In its widest sense., all animate or
in~imate things belonging to a person are included within the meaning of the
term property; for instance, a person's life, liberty and estate may also be
·considered as his property. However, it has now become redundent to interpret-
the. t~rm 'property' in this comprehensive sense.
The importance of property in t];,.e modem materealistic world hardly
needs to be emphasised. Property is absolutely necessary for the subdistance and
well \,eing of human beings. Everyone has a · right to enjoy the fruits of labour
and industry. Property is the foremost requisite for a happy and contented life
and therefore, its preservation and protection is one Qf the primary objects of
the State. It is mainly the interest in property which keeps men united as
members of society .1 ·
Meaning of Property
The term property in a looser sense, may be described as the sum-total of a
man's fortune, including not only the objects of which_he is the owner, but also
the value of any claims which he may have against other persons, after
deducting the amount of any claims which might he made good against him.2
I
. In a limited sense, properly convers only a ·person's prop~etary rights as
opposed to ~is personal rights. Thus land, chattels, shares and debts .due to him
cqnstitute his property. This is the most usual sense in which the term is used j.n
modem time. ·
In yet another sense, property .includes only · those rights which are .
proprietary rights in rem, e.g., patent, copyright. But a ,del?t or benefit of a
contract is not included within the term 'property' in this sense.
According to Salmond, the substantive civil law, as opposed to the law of
procedure, is divisible into three major parts, namely, the law of pmperiy, the
law of obligations, and the law of status. The first deals with the p~oprietary
rights in rem, the second with proprietary rights in personam and the third
deals with personal or non-proprietary rights, whether in rem or in personam.3
1. Nani Palkhiwala: Our Constitution Defaced and Defiled (1974) p. 35.
2. Holland T.E. : Elements of Jurisprudence (13th Ed. 2010) p. 211.
3. Fitzgerald, P.J.: Salmond on Jurisprudence, (12th~-) p. 441
( 471)
 472 JURISPRUDENCE AND LEGAL THEORY
- I
In other words, the subject-matter -of the law 'of property is proprietary rights
in rem while the subject-matter of law of obligtions is proprietary rights in
personanz. The subject-matter of the -law of status is all personal or non.-
proprietary rights, whether in rem or in personam.
Salmond observes that the term 'property' may have -a variety · of
applications but in legal terms it refers to the follow.ing : - _
Defining property as a legal concept, the Supreme Court in Guru Dutt
Sharma .v. State of Bihar, 1 observed that it is a bundle of rights, and in the
case of tangible property, it wou)q include the right of possession, the right to
enjoy, the_ right to retain, the right to alienate and the right to destroy.
The term 'property' also includes within it, goodwill of a business, which
is an intangible asset. It includes not only immovable and movable object, but
also patents, copyrights, shares, claims etc.
1. All legal rights.-It includes a person's legal rights of whatever
description. A man's property is all that is his in law. This ordinarily implies
complete ownership of all things-material as well as incorporeal, Hobbes2
and Blackstone have supportd the use of the term 'property' in this sense. But
this usage has become obsolete in the present time.
2. Proprietary rights.-It includes not all rights, but only a man's
proprietary rights as opposed to his personal rights. Thus if I sell my land to
you, the property in it shall pass to you on your paying me the purchase money.
3. Corporeal Property.-In this sense, property includes nothing more than
corporeal things, that is, · right of ownership in a material object such as a
watch, land, horse, etc.3 . _·
According to Salmond, ownership of corporeal property is general,
· permanent and inheritable right of user of a thing.
Firstly, the ownership of a material object is a right to the general or
aggregate use of the thing. The owner of the material object (thing) is entitled
to its use except insofar as it is restricted by natural limits or restrictions arising
from the effect of encumbrances.
Secondly, the right of ownership is permanent right existing so long as the
material thing is in existence.
Thirdly, the ownership of a material object is inheritable and the right
survives after the owner's death.
Bentham, however, preferred to interpret the term 'property' in its
narrowest sense. According to him, it includes nothing more than corporeal
property, i.e., ownership of material objects alone.
1. AIR 1967 SC 1684.
2. Hnht.-, : Leviathan Chap. XXX, p. 329.
3. Bentham ; Principles of Legislation, p. 231.
PROPERTY 473
Austin looks at property in its widest sense and suggests that property
denotes the greatest right of enjoyment known to the law excluding servitudes.
Sometimes even servitudes are described as property in the sense that there is a
legal title to them. Considered from this poirtt of view, property means the
whole of the assets of a man including both his proprietary as well as personal
rights.
'Property' as interpreted by the Supreme Court of India
The Supreme Court of India, in RC. Cooper v. Union of India, 1 gave a very -
comprehensive definition of property and observed :~
"Property means the highest right a man can have to anything
being that right which one has to lands or tenements, goods or chattels
which does not depend on other's courtesy; it includes ownership,
estates and interests in corporeal things, and also rights such as trade-
marks, copyrights, patents and even rights in personam capable of
transfer or transmission, such as debts; and signifies a beneficial right
to or a thing considered as having money value, · especially with
reference to transfer or succession, and of their capacity of being
acquired".
Most of the modern legal systems are using the term 'property' in a
comprehensive sense. In India, property has been given constitutional protection
· under Article 19(1) (f) of the Constitution of India so that the State may not
interfere with a person's right to property. The importance of personal property
is receding these days. _This is why right to property had been dropped from
the category of fundamental rights by Constitution Forty-fourth (Amendment)
Act, 1978 and it has now become an ordinary legal right urtder Article 300-A.
State is under an obligation to protect the property right of its subjects. In a
democratic country like India, nationalisation of means of production brought
-about a radical change in law of property. Now-a-days greater importance is
given to social property than individual property. Today, property has been
developed as a social institution. 2
TI1e effect of the constitutional amendment which took away the right to
property from the category of fundamental rights and made it an ordinary legal
right under Art. 300A, is that a person cam1.ot invoke the writ jurisdiction of the
Supreme Court under Art. 32 in case his right to property is violated. The nature
of right to property in the post 44th Amendment era came for consideration
before the Supreme Court in Julubhai Nanubhai Khachar v. State of Gujarat 3
wherein the Court observed :
"..... the right to property under Art. 300-A is not a basic structure of
the Constitution. It is only a constitutional right-111.e deprivation of
the property shall be only by authority of law, be it an Act of
1. AIR 1970 SC 564; also known as Bank Nationalisation case.
2. National Textile Workers v. P.R. Ramkrishnan, AIR 1983 SC 75.
3. AIR 1995 SC 142 (157).
474 JURISPRUDENCE AND LEGAL THEORY
Parliament or State Legislature but not by executive fiat or an ·order.
Deprivation of property is possible by acquisition or requisition or
taken possession of for the public purpose".
The modem judicial trend to interpret right to property •in the light of Art.
21 of the Constitution dealing with personal liberty also deserves mention at
this place. The Apex Court in a number of cases has expr~ssed a view that Art.
· 21 in its widest magnitude covers a variety of right (including right to
property) which constitute the personal liberty of a man. Therefore, despite
the fact that right to property as a fundamental right has been abrogated and
·repealed, this right may still be interpreted by the Court as an aspect of
personal liberty under Art. 2L Therefore, a law seeking to deprive a person of
his personal liberties. relating to property must not only be 'reasonable' but must
also be 'right, just and fair' and consequently it must provide for just
compensation.1 · not accomplished due to illness or other impediments, then wages would be
Theories of Property
Jurists have differed in their views regarding the origin of property. They
have advanced their own theories in this regard. None of them, however,
seems to be wholly correct but there is some truth in each one of them. These
theories are discussed below :- · her own property over which she had exclusive right of disposal.3 The profit
1. Natural law Theory.-This theory is based on the principle of natural
reason derived from the nature of things. According to this theory,-property
was first acquired by occupation of an ownerless object2 as a result of individual
labour. Grotjus, Pufendrof, Locke and Blackstone have supported this theory.
Kant also upholds this theory in his classic work Philosophy of Law~ As
pointed out by Blackstone, "by the law of nature and reason, he who first began
to use a thing acquired therein a kind of transient property that las~J SQ i-.mg
as he was using it and no longer". However, as the population increased, the
meaning of property was extended not to the inordinate nse only but to the
substance of thing to be used. Thus the theory of occupancy was the foundation
of all property.
The natural theory of property has been criticised by Sir Henry Maine and
Bentham. According to Henry Maine, it is erroneous to think that possession
gives rise to title3 for there is no reasonable ground to support this contention.
Bentham holds that property has not originated by first occupation of an
ownerless thing, but it is a creation of law. He does not believe in the existence
of property without the existence of law.
2. Labour Theory.-This theory primarily believes that property can be
claimed on the exclusive basis of one's work, which produced that property. It
recognises the role of labour for adequate rewards. When a person acquires
property, he is entitled to hold it exclusively.
1. Bhattacharjee A.M. : Right to Property After Fortyfourth Amendment, AIR Journal, 1980
p.~ .
2. In legal tenninology ownerless objects are called res nullius.
3. Sir Henry Maine: Ancient Law, p. 269.
PROPERTY 475
According to this theory, a thing (res) is the property of the person who
produces it or brings it into existence. However, this view has been criticised by
Harold Laski on the ground that labour does not produce property, it is only a
means to earn property.1 Notably, the Marxist theory of property is based on
predominance of labour in economy of a country. This theory has lost
significance in modem time because it has been shown that there may be many
situations when property can be acquired without" labour, e.g., property
obtained by inheritance or under a will.
The labour theory of property finds recognition even in the ancient texts of
the Hindu law commentators notably, Yajnavalkya · who underlined the
principle that a person's wages will be according to work done by him. Thus
when wages have been fixed for a particular task, which was undertaken but
paid in proportion to the work done. Similarly, when more profits were made
by reason of special knowledge oi- skill of the worker, then the master shall
pay him an amount exceeding the fixed wages. 2 Katyayna recognized the
Stridhana property of woman and pointed out that wealth earned by a woman
by application of her intellectual ability or business skill or craftsmanship was
earned by her in business, trade or employment who also her exclusive
stridhana property.
The labour theory of property is also sometimes called as the positive
theory. It was propounded by Spencer who founded it on the fundamental law of
equal freedom of individual. He asserted that property· is the result of
individual labour and therefore, no one has a moral right to property which he
has not acquired by his personal labour.
3. Metaphysical Theory.-This theory was propounded by Hegel and
Kant. According to Hegel, "property is the objective manifestation of the
personality of an individual". In other words, property is the object on which a
person has the liberty to direct his will. Kant has also supported metaphysical
theory of property and ·justified its existence and· need for protection. He
observed that law of property does not merely seek to protect possession where
there is an actual physical relation between the possessor and the object, but it
goes beyond it and considers personal will of the individual more important in
the concept of property. This theory has been criticised on the grotµ1d that it is
little concerned with realities and is based on theoretical assumptions.
4. Historical Theory.-This theory believes that private property has its
growth in three distinct stages. In the ffrst stage, a tendency developed among
people to take things into natural possession and, exercise control over them
independently of the law or the State. In the second stage, the juristic
conception of possession gradually developed which meaht possession in fact as
1. Harold Laski : A Grammar of Politics, (5th ed.) p. 185.
2. Yajnavalkya II 195-96.
3. Katyayana, 895-902.
. 476 JURISPRUDENCE AND LEGAL THEORY
well as in law. In the third and the last st~ge, there was development of
ownership which is purely a legal conception having its origin in law. The law
guarantees the owner of property, exclusive control and enjoyment of property
owned by him.
Henry Maine was the main supporter of the historical theory of the origin
of property. He observed that property originally belonged .not to individuals,
not even to isolated families, but to large societies c·o mposed on the patriarchal
pattern. It was at a later stage that collective property disintegrated and
individual rights of property came into existence~ 1 Roscoe Pound also agrees
that the earliest form of property was group property which subsequently
disintegrated into family property and finally the ·concept of individual
property evolved. The noted Italian jurist Miraglia has also supported the
historical theory of property.
5. Psychological Theory.-According to this theory, property came into
existence on account of the acquisitive tendency of human beings. Every one
desires to own things and keep them in his possession and control. Bentham has
supported this theory of property and pointed out that property is altogether a
conception of mind. It is nothing more than an expectation to derive certain
advantages from the object according to one's capacity. Roscoe Pound also
supports Bentham and holds that the sole basis of conception of property is the
acquisitive instinct of individual which motivates him to assert his claim over
objects in his possession and control.
This theory has been criticised for being Maine's imaginative
reconstruction based on Indian village communities and certain local customs
prevailing in ancient Indian villages and, therefore, it lacks universal
application.
6. Functional Theory.-The functional theory considers property as a
social interest for promoting general security and protection of individual
interests in personality, domestic relations and in subsistence. As pointed out by
Roscoe Pound, interests of personality like security of one's physical being,
privacy, honour, reputation, etc. can be realized only through some access to
property. Interests in domestic relations are protected when the interests of
parents, children, husband, wives and other dependents are well safeguarded
by support and protection of the family. Interests of subsistence include right to
property, economic advantages, freedom of association and availability of
employment-opportunities. 2
As rightly suggested by Jenks the concept of property should not only be
confined to private rights but it should be considered as a social institution
securing maximum interests of the society. No one can be allowed an unrestricted
use of his property to the detriment of others. In his opinion, the use of property
should conform to the rules of reason and welfare of the community. The
1. Sir Henry Maine : Ancient Ltnu, p. 270.
2. Julius Stone: Province And Functions of Law, p. 565-6.
PROPERTY 477
functional theory justiffos acquisition of property by law and individual-
efforts. Its distribution,.however, .should be on equitable basis.
Laski also supports the func~ional theory of property. He observes,
"property is a social fact like any other and it is the character of social facts to
keep on changing. Property, .therefore, has assumed varied aspects and is
further liable to changes with the ·changing norms of the society".
The roots of property as a social institution are traceable in the ancient
Hindu philosophy of dharma which emphasized on just relations in economic
and property matters and not to encroach upon the right to wealth of others. It
was the duty of the Karta of the family to maintain all the family members
ensuring their social security and enjoyment of property .1
The customs and practices through which property could be lawfully
acquired included donations, gifts, payment of price in case of purchase, seizure
of property in war, lending of money on interest, w~ges, etc. Any unjust
acquisition of property was strictly prohibited and considered as a sinful act.2
The joint family system in ancient India inspired members of a family
with unity of mind and hea~t with the result property right assumed a
functional role of service to the community as a whole.
The central principle underlying property acquisition was social security
and collectively of ownership. Mutual trust, good faith and respect for others
property right, refrained people from indulging in unjust enrichment for their
selfish ends.
7. Theory that Property is the creation of State.-According to this theory
the origin of property is to be traced back to the origin of law and the State.
Jenks observed that property and law were born together and would die
together. This in other words, means that property came into existence when
laws were framed by the State. In this context Rousseau observed, "it was to
· convert possession into property and usurpation.into a right that law and State
were founded". He asserted that property was the creation of the State and it
l is nothing but a systematk expression of degrees and forms of control use and
enjoyment of things by persons that are recognised and protected by law. There
f is, however, little truth in this theory because in fact both the State and
property have their origin in the socio-economic forces therefore, one cannot be
the source of origin of the other.
In the Indian context, the constitutional provisions contained in Articles 39
(b) and (c) clearly reflect the concern of the State against concentration of
wealth in the hands of few to the detriment of societal interests. Fair and
equitable distribution of wealth so as to subserve the common interest of all
sections of the society has been the guiding principle in regulation of property
by the State through the instrumentality of law. The focus has been on
1. Purohit, S.K.: Ancient Indian Legal Philosophy, (1994), pp. 212-13.
2. Yajanavalkya Smriti II, 168.
 478 JURISPRUDENCE AND LEGAL THEORY PROPER1Y 479

socialization of property rather than ad9pting a narrow individualistic
approac~. The rule· _against unjust enrichment, doctrine of perpetuity,
marshalling, subrogation, part performance, partition etc. are incorporated in
the propert! la~ wit~ a view_ to ensuring just and fair enjoyment of property
and protecting 1t against all kinds of exploita-::ion. .
Kinds of Property
Broadly s~eaking, the objects which are capable of becoming property are
those over which a person exercises a right and with reference to which
another person owes a·duty. These objects may be-- · law referred only to the ownership of the right of general user and all those ·
(i) Material objects i.e., physical things (res corporales) such as house
tree, field, horse, table etc. ' property.
(ii) Intellectual objects which are artifi~ial things called res incorporales
such as trademark, ~opyright, .patent, easement rights. These are
int_angible things, which are treated by law as if they were material
obJects for the purpose of determination their holder's right and duty
of others against him.
Thus, it woul_d be seen that property is mainly of two kinds, namely, (1)
corpo~eal, ~nd (2) incorporeal. Corporeal property is the right· of ownership in
material tlungs ~herea~ •incorporeal property is any other proprietary right in
rem, _e.g., pa~en~ right, right of way. Corporeal property is always visible and
·1. Corporeal and Incorporeal Property.-As stated earlier, corporeal
property is also called tangible property because it has a tangible existence
in the world. It relates to material things, e.g., land, house, money~ ornaments,
gold, silver etc. are corporeal property the exis~ence of which be felt by
the sense-organs. Incorporeal _property is · also called intangible·. ·
property because its existence is neither visible nor tangible e.g. right
of easement, copyright, patent, trademark etc. In Roman law, corporeal
· property is termed res corporalis and incorporeal property is called as res
incorporalis. Buckland, however, suggests that corporeal property under Roman
things which could be valued in currency fell under the category of incorporeal
2. Movable and Immovable Property.-All corporeal property is either
movable or immovable. In English law these are termed as chattels and land
respectively. According ~o Salmond, immovable property (i.e., land) has the
following elements : -
( 1) A determinate portion of the earth's surface;
(2) The ground beneath the surface down to the centre of the earth;
(3) The column of space aboV[e the surface ad infinitum;
• i

~ang1ble while incorporeal property is not. Both are, however, valuable rights (4) All objects which are on or under the surface in its natural state,
masmuc~ as they a_re legal rights recognised and enforced by law. Corporeal e.g., minerals, natural veget~tion, or stones lying loose upon the
property 1s of two kinds, movable and immovable. surface;
. Incorporeal property is further divisible into two kinds, namely, (i) jura in
(5) All objec~s placed by human agency on or under the surface of the
_re_ alzena or encumbrances, whether over material or immaterial things, e.g.,
land with the intention of permanent annexation, e.g., houses,
le~se, mortgages and servitude; and (ii) jura in re propria over immaterial
thmgs, sm;h as patents, trade marks, copyright etc. . walls, 1 fences, doors, etc. These becqme part of the land ai:td lose
their identity as separate movable chattels. It must, however, be
The detailed classification of property is shown in the Table given _ noted that physical attachment without the intent of. permanent
below:-
annexation does not make change in _the nature of m<?yable property.
For example, ~arpets o_r ornaments nailed to .the. floor ·or .wall of a
Property
house_or m.oney · bur:r~ed in· the -ground are _as much a chattel
I (movable pt~perty)."_as money in the C>".'711er's pockets. ·
I Immovable property_has been defined iri the General Clauses Act, 1897 to
Corporeal Incorporeal
I include land; benefits to arise out of land, and things attached to the earth, or
. I I .permanently f~steh.ed to- anythi1J.g attached to_ the earth. 2 The term i~ also
I ..
lmmovahle Movable Jura in re aliena Jura in re propria . defined in the Indian Registration Act, 1908; thus : "Immovable property,.

I ---r----------~
I I I
I I
Patents I
Copyright
I
I
Trademark
includes l~nd, buildings, hereditary allowances, right to way, light<ferries,
fishe~ ,,..or any other benefits to arise out of land and things attached to the
Lease Servitude Securities Trust
earth or permanently fastened to anything which is attached to the earth, but
not standing timber, growing crop or grass".3 The Transfer of Property Act, 1882
I
I
1. Monti v. Barnes, (1901) 1 KB 205.
Mortgage Lien 2. Section 3 (26) of the General Clauses Act, 1897.
3. Section 2 (6) of the Registration Act, 1908.
480 JURISPRUDENCE AND LEGALTIIEORY
excludes standing timber, growing corps \and grass from the definition 9f
immovable property;
· The following are judicially recognised as immovable.pr_operty~(l) right
of way, (2) right to collect rent of immovable property, (3) a right of ferry, (4) a
mortgagor's right to redeem the mortgage, (5) interest of a mortgagee in _
immovable property, (6) right of fishery, (7) right to collect lac from trees. _
The following are not judicially recognised. as immovable property.:..._
(1) standing timber, (2) growing crops, (3) grass, (4) a right to recover
maintenance allowance even though it is charged through immovable property,
(5) right of purchaser to have the land registered in his name, (6) royalty, (7) a
decree of sale or sale of immovable property on a mortgage.
Movable property, on the other hand, may be defined as any corporeal
property which is not immovable property.
3. Real and Personal Property.-The distinction between real and personal
property is closely connected with but not identical with the distinction
between movable and immovable property. The distinction, however, has no
scientific basis. It is mostly the product of the history of the law of action in
England. Real property means all rights over land recognised by law. Personal
property, on the other hand, means all other proprietary rights whether they
are rights in rem or rights in personam. Commenting on this distinction,
Salmond observed, "the law of real property is almost equivalent to the law of
land while the law of .personal property is almost identical with the law of
movables".1 This distinction between real and personal property has been
drawn from the Roman law. The real property and immovable property form
intersecting circles which are very nearly though not quite coincident.
Movable property is commonly termed as chattel which has three
different meanings : -
(1) Any movable physical object such as, table, money, dog etc.
(2) Incorporeal proprietary rights such as debts, shares, and other rights
in rem which are not rights over land.
(3) Personal property, whether movable or immovable, as opposed to real
property.
Rights in re propria in Immaterial Things
Proprietary rights are both in ·relation to mate:ial and_ immaterial th~gs.
Material things are physical objects and all other thm?s w~1ch ma~ be sub1ect-
matter of a right are immaterial things. They are various 1mmatenal products
of human skill and labour. These immaterial forms of property 'are as
follows:-
(i) Patents.-The subject-matter of a patent right is an invention such as
the idea of a new process, instrument er manufacture. The person by whose skill
1. Fitzgerald, P.J. : Salmond on Jurisprudence, (12th ed.) p. 420.
PROPERTY . 481
or labour the invention or a new process or manufacture is 'introduced' has the
exclusive right of patent in it. This is granted to the inventor by the State.I
The Indian Patents & Designs Act provides that a person who has
registered a patent gets the exclusive right fo make use .or sell the patented
invention for a period of fourteen years, and any person who, whether with or
without the knowledge of the existence of the patent right, infringes the same, ·
may be restrained by injunction and if he knowingly infringes the patents, shall
be liable also for damages. ·
(ii) Copyright.-The subject-matter of the right is the literary expression
of facts or thought. This right may be available to writers, painters, engravers,
sculptures, photographers, musical and dramatic personnel for their
outstanding work. When such a person does some creative work by utilising his
intellect, skill and labour, he is entitled to exclusive copyright which is an
immcterial form of property. In short, copyright may be literary copyright or
artistic copyright or musical and dramatic copyright. 2 .
(iii) Commercial Goodwill.~Yet another form of immaterial property is
commercial good will, trade marks and trade-names. The good will of
commercial business is a valuable right acquired by the owner by his labour and
skill. He has exclusive right of use and profit from the business and anyone who
seeks to make use of it by falsely representing to the public that he is himself
carrying on the business in question, shall be violating this right. 3
Rights in re aliena (Encumbrances)
Rights in re aliena are also known as encumbrances .. Encumbrances are the
rights of specific or particular user as distinguished from ownership which is
right of general user. Encumbrances prevent the owner from exercising some
definite rights with regard to his property. The main categories of rights in re
aliena or encumbrances are-,--(1) Leases, (2) Servitudes, (3) Securities, and
(4) Trusts.
1. Lease.-A lease is that form of encumbrance of property vested in one
person l:?Y a right to the possession and use of it vested in another. Thus it is
transfer of right to the possession and use of property owned by some other
person. It is an outcome of the rightful separation of ownership fro~ posse~sion.
A lease may either be for a certain specified period or in perpetmty. It 1s an
encumbrance in which the lessor, i.e., the owner of the property transfers his
right of possession to the lessee. Thus if I own a house which is let out to a
tenant, I have created a lease, i.e., I have detached my possession from my
ownership. I am still the owner of the house but the tenant, i.e., the les.:see has
th_e possession of it and he can use it so long as the lease subsists.
1. The rights of a person who is responsible for a new mvention are protected by the Indian
Patents Act, 1970 and the Designs Act, 2000.
2. Infringement of copyright is punishable under !PC or may be proceeded against under the
Copyright Act, 1957.
3. See The Trade Marks Act, 1999.
482 JURISPRUDENCE AND LEGAL THEORY
- A lease of i.nt.movable property is therefore, a transfer of a right to use and
enjoy such property for a certain period, express or implied or in perpetuity in
consideration of (i) a price paid or promised, or (ii) money, or (iii) share in
crops, or (iv) service, or (v) any other thing of value to be rendered periodically
or on specified occassions to the transferor by the transferee (i.e., lessee) who
accepts the transfer on such terms. The price is called the ·'premium' and the
money, share or produce or service rendered is called the 'rent', the transferor is
called the lessor and the transferee the lessee. ·
The Transfer of Property Act, 1882 defines a· }ease as a transaction in
which a party owning the asset provides the asset for use over a certain period
of time to another for consideration either in the form of periodic rent and/ or in
the form of down paym~:nt. 1 Since all lease agreements are governed by the
Transfer of Property Act, it creates an interest in the property for the lessee for
the duration of the lease. The lessee gets protection against eviction,
inheritable tenancy rights, and protection against exorbitant rent increase by
the landlord. The landlord, on his part would lease out his property with the
full protection of law to ensure that he gets vacant and unencumbered,
possession of property upon expiry of the agreed term or otherwise as provided
under law.
Lease may also defined as a contract between two parties for the hire of a
specific asset wherein the lessor retains ownership of the asset while the
lessee has the possession and use of the asset on payment of specified rent over a
period of time.
A lease gets determined (terminated) on the happening of one of the
events referred to in Section 111 of the T.P. Act.
The essentials of a lease may be summarised thus : -
(i) TI1e lessor must be a person competent to contract and must have title or
authority;
(ii) The lessee must also be competent to contract since a lease is to be
executed by both, lessor and the lessee;
(iii) Subject-matter of the lease must be immovable property;
(iv) Transfer of right of possession to use and enjoy such property;
(v) Duration of the lease may be express, implied or in perpetuity;
(vi) Consideration may be in the form of premium, rent or both. As already
stated, premium is the price paid or promised in consideration of a transfer by
way of lease. Any payment by the lessee that is part of consideration of the
lease is rent;
(vii) The lessee must accept the transfer; and
(viii) In certain cases a lease must be made through a registered deed.
1. Section 105 of the Transfer of Property Act, 1882.
PROPERTY 483
Generally speaking, - a lease is always with respect to immovable
property, i.e., land. The right involved in a lease is also called 'tenancy'.
However, in jurisprudential terms a 'lease' has a m:uch wider meaning and may
also include tenancy in land, bailment of movable property, all encumbrances
relating to incorporeal property etc. In this comprehensive sense, every right
that can be possessed can be made -the. subject of a lease. Thus there can be a
lease of copyright, patent, right of way etc. In practice, however, lease
ordinarily refers to transfer of possession by-the owner (lessor) to the lessee for
certain consideration which may be premium or rent.
The Supreme Court in Pramod Kumar ]aiswal v. Bibi Husan Bano 1
observed that lease being a transaction involving immovable property, requires
attention of law for it contains issues of public interest. In this case, the Apex
Court took a firm stand in protecting rights of the landlord as against the
conventional approach of showing an inclination towards tenant's right.
2. Servitude.-A servitude is that form of encumbrance which consists in..a
right to the limited use of the place of land without the possession of it; for
example, a right of way, a right to passage of light or water across the
adjoining land, right of fishing etc. A servitude therefore, is a right to the
limited use of a piece of land without ownership or possession thereof. There is
no transfer of possession in case of a servitude and this distinguishes it from a
lease. If a person secures exclusive possession of a piece of land without getting
its ownership, he acquires a lease of that land but if he only acquires a right to
use that piece of land ~ithout getting its ownership or possession, he acquires a
servitude on that land. Ordinarily, servitudes exist with respect to land
alone.
Servitudes are of two kinds-Private or Public. A private servitude is
vested in a determinate individual as in case of a right of way, of light or
support vested in the owner of a piece of land over and adjoining piece of land.
A public servitude, on the other hand, is vested in the public at large or some
class of indeterminate individuals such as the public right of navigation or
fishing, public right of way over land in private ownership or right of
inhabitants of a village to use certain piece of land for recreation, cremation
etc.
Salmond has further classified servitudes as (i) appurtenant, or (ii) in
gross.
A Servitude appurtenant (it is also called as praedial servitude) is one
which is not merely an encumbrance of one piece of land but is also accessory to
another piece of land. It is a right of using one piece of land for the benefit of
another; as in the case of a right of support for a building. The land which is
burdened with such servitude is called the servient tenement and the land
1. c2oos) s sec 492.
 484 JURISPRUDENCE AND LEGAL 1HEORY
which has the benefit of it is called the dorriinent tennant. The servitude runs
with each of the tenements into the hands of s~ccessive owners and occupiers. 1
A servitude is said to be in gross when it is not so attached and accessory to
any·dominant tenement for whose benefit it exists; for example, a public right of
way or navigation; or a private right of fishing or mining etc. · cause the mortgaged property sold and the proceeds of sale to be applied so far
• as may be necessary, in payment of mortgage money, the transaction is called a
3. Security.-A security is an encumbrance vested in a creditor over the
property of his debtor for the purpose of securing the recovery of the debt. In
other words, it may be said to be a right to retain possession of a chattel until
the debt is paid. Security on immovable property is called a 'mortgage' and on
I i
I movable property it is called a 'pledge'. · mortgage-money on a certain date, the sale shall become absolute or on
\ condition that on such payment being made, the sale shall become void, or on
According to Salmond, a security is an encumbrance the purpose of which is
to ensure or facilitate the fulfilment or enjoyment of some other right (usually
though not necessarily a debt) vested in the same person. It will not be out of
place to distinguish security from a surety. In case of security, a particular res is
charged with the debt, but in the case of surety, the person giving surety is
under an obligation to pay the debt of another if the latter fails to pay the debt
himself.
Securities over property are of two kinds : -
(i) Mortgage; and (ii) Lien.
(i) Mortgage.-Where immovable property is secured to another for
i
l consideration, the transaction is called a mortgage. It is called 'pledge' if the
I property is movable.
Ii A mortgage is the transfer of interest in specific immovable property for
i the purpose of securing : -
il
ji (a) the payment of money advanced by way of loan,
(b) an existing or a future debt, or
(c) the performance of an agreement which may give rise to pecuniary
liability. 2
The transferor is called a 'mortgagor', and the transferee a 'mortgagee'.
The instrument by which the transfer is effected is called a mortgage-deed.
There are six kinds of mortgages. They are-(1) simple mortgage, (2) mortgage
by conditional sale, (3) usufructuary mortgage, (4) English mortgage,
(5) equitable mortgage (also known as mortgage by deposit of title deeds), and
(6) anomalous mortgage. 1hese mortgages are explained in Section 58 (b) to (g)
of the Transfer of Property Act, 1882, which reads as follows ·: -
1. According to Salmond, an easement, in the strictest sense, means a particular kind of
setvitude, namely, private and appurtenant setvitude which is not a right to take any profit
from the servient land.
2. Section 58 (a) of the Transfer of Property Act, 1882.
PROPERTY 485
· (1) Simple Mortgage.-Where, without delivering possession of the
mortgaged property, the mortgagor binds himself personally to pay the
mortgage money and agrees, expressly or impliedly, that in the event of his
failing to p~y according to his con~ract, the mortgage·e shall have a right to
simple mortgage and the mortgagee as a simple mortgagee.
(2) Mortgage by Conditional Sale.-Where the mortgagor ostensibly sells
the mortgaged property on condition that on default of payment of the ·
condition that on such payment being made, the buyer shall transfer the
property to the seller. Such a transaction is called mortgage by conditional
sale . .
(3) Usufructuary Mortgage.-Where mortgagor delivers posse::;sion
expressly or by implication and binds himself to deliver possession of the
mortgag~d property to the mortgagee and authorises him to retain such
possession until payment of the mortgage money, and to receive the rents and
profits accruing from the property in view of interest, or in payment of mortgage
money, or partly in lieu of interest or partly in payment of mortgage money, the
transaction is called an usufructuary mortgage.
(4) English Mortgage.-Where the mortgagor binds himself to repay the
mortgage-money on a certain date, and transfers the mortgaged property
absolutely to the mortgagee but subject to the proviso that he will re-transfer it
to the mortgagor upon payment of the mortgage-money as agreed, the
transaction is called an English mortgage.
(5) Mortgage by deposit of title-deeds.-Where a person delivers to a
creditor or his agent, documents of the title to immovable property, with intent
to create a security thereon, the transaction is called a mortgage by deposit of
ti tie-deeds.
(6) Anomalous Mortgage.-A mortgage which is not a simple mortgage, a
mortgage by conditional sale, an usufructuary mortgage, an English mortgage or
a mortgage by deposit of title-deeds within the meaning of Section 58 of the
Transfer of Property Act, 1882, is called an anomalous mortgage.
(ii) Lien.-A lien is the right to hold property of another person as a
security for the performance of an obligation. In other words, lien is a right of
one man to retain that which is in his possession belonging to other until certain
legitimate demands in respect of the person in possession are satisfied. Thus a
finder of a goods has a right to retain the goods against the owner till he
receives from the owner, the compensation for trouble and expenses incurred by
him, and also specific reward which the owner may have offered for the return
of such goods. The finder is said to have a lien upon the goods so found. Lien is
486 JURISPRUDENCE AND LEGAL THEORY
i
right to retain possession of goods and does ~ot include right of ownership or
sale.
Liens may be of different kinds. They are : -
(i) Possessory lien.-A possessory lien consists in the right to retain
possession of chattels or other property of the deb_tor. Examples are pledges of
chattels and the liens of inn-keepers and vendors of goods.
(ii) Agent's lien .-In absence of any contract to th~ contrary, an agent is
entitled to retain goods, papers and other property, whether movable or
immovable, of the principal received by him, until the amount due to himself
for commission, disbursement and services in respect of the same has been paid
or accounted for to him. This is provided in Section 221 of the Indian Contract
Act. • .
(iii) Unpaid Vendor's lien. 1-The unpaid seller of goods who is in
possession of them is entitled to retain possession of them until the payment or
tender of the price.
(iv) Power of forfeiture.-The creditor has the power of destroying some
adverse right vested in the debtor, e.g., landlord's right of re-entry on his land.
(v) Charges.-The creditor has a right to receive payment out of some
specific fund from the proceeds of specific property. A charge may be created by
act of parties and it may also arise by the operation of law. In India, 'charge' is
a right which in many ·respects resembles a mortgage but it is a lesser right than
a mortgage. Section 100 of the Transfer of Property Act, 1882, defines a 'charge'
thus : "where immovable property of one person is by act of parties or by
operation of law, made security for the payment of money to another and the
transaction does not amount to a mortgage, the latter person is said to have a
charge on the property-". A 'charge' may either be fixed or floating. When a
charge pertains to some specific fixed property, it is called 'fixed charge', but a
floating charge is not so fixed; it may become fixed on the happening of some
future event.
Distinction Between Mortgage and Lien
A mortgage may be distinguished from a lien as follows : -
(i) A mortgage is an independent and principal right and not a mere _
security but a lien is only a security for a debt. It is merely a r i ~
possession of chattel until payment is made.
(ii) The right of mortgagee is vested in him conditionally and by way of
security only whereas right of lien is vested in the lienee absolutely and not
merely as security.
(iii) Mortgage is created either by transfer or by encumbrance, but a lien is
created by way of an encumbrance only.
1. Sec•':.,_ ,4) (b) ofT.P. Act.
PROPERTY 487
(iv) A mortgagor has an infallible right of redemption of mortgage but
there is nothing like 'redemption' in case of a lien.
(v) In case of mortgage, encumbrance is created independent of debt
whereas in a lien duration is dependent on the debt secured.
(vi) In a mortgage by · transfer of mortgaged property, the mortgagor
(debtor) remains the equitable or beneficial owner of the property. On
repayment of debt, the mortgagee hplds property in trust for the mortgagoi:. In
case of a lien, full legal and equitable ownership vests in the debtor and the
creditor has only such limited rights which give sufficient protection to recover
his debt. . · .
(vii) A mortgage pre-supposes a contract between the parties but existence
of a contract is not always necessary in case of a lien.
4. Trust.-A trust is an ~ncumbrance in which the ownership of property is
limited to deal with it for the benefit of some third person. In other words, a
trust is an obligation annexed to t!i,e ownership of property. It arises out of a
confidence reposed in and accepted by the owner. According to Salmond, a trust
is ordinarily created for the benefit of unborn persons, infants, minors, lunatics
and persons who suffer from some legal disability.1 It is also creatP.j for the
perfection of some disputed property or safeguarding .the common interest of
several persons. The law relating to trusts is contained in the Indian Trusts Act,
1882. Thus in case of a trust although the property is legally vested in the
trustee, he keeps it for the benefit of the beneficiary.
As regards the importance of trusts, Paton observed that it has proved
useful in many ways. Firstly, it has been used by associations as a means
whereby their property is used for the desired purpose. Secondly, it has
facilitated endowments and gifts for charitable and religious purposes by
vesting the property in trustees for purposes as desired by the settler. Thirdly,
the tmst has a great social importance in helping settlement of family property
by protecting the interests of young persons and married women. 2 ·
Trust distinguished from a Mortgage
Although the relation of mortgagor and mortgagee has some analogy to
the fiduciary relation between trustee and the beneficiary, the two are not
identical. A mortgagee is not a trustee for the mortgagor and he does not hold
the legal estate for the benefit of the mortgagor as a trustee does for the
beneficiary, i.e., cestui que trust. Again, the mortgagee has not only the legal
insterest in the property mortgaged, but also a beneficial interest in it adverse
to the mortgagor's, which he can enforce by a suit against the mortgagor.
Ash.burner points out that the mortgagee becomes a trustee only after he
has been paid his debt-money. In equity law, his right in the property does not
extend beyond what is necessary to secure repayment of the money due to him. If
1. Fitzgerald, P.J. : Salmond on Jurisprudence, (12th ed.) p. 434.
2. Paton, G.W.: A Text Book of Jurisprudence, p. 432.
488 JURISPRUDENCE AND LEGAL THEORY
i
the mortgagee has been reimbursed by sal~ of mortgage property, he shall
become the trustee of the surplus proceeds if any, for the person entitled to the
equity of redemption. 1
Modes of Acquisition of Property
There are four distinct modes of the acquisition of property. It may be
acquired by (1) possession, (2) prescription, (3) agreement, and (4) inheritance.
1. Possession.-It has been stated earlier that possession is the objective
realisation of ownership. It is prima-Jacie evidence of ownership. The property
which belongs to no one, i.e., res nullius, belongs to the first possessor of it and
he acquires a valid title to it as against the world. Th.us the fish of the sea and
the birds flying in open sky belong to one who first succeeds in obtaining
possession of them and acquires an absolute title over them. This mode of
acquisition has been called as occupatio in Roman law. A property which is
already in possession of some one else, when acquired by possession, gives a good
title to the possessor against all third persons except the true owner. Even as
against the true owner, the possessor is entitled to maintain his possession until
evicted in due course by law. In such a case· of adverse possession there are in
fact two owners, the ownership of one is absolute and perfect while that of the
other is relative and imperfect_ and often called as possessory ownership by
reason of its origin in possession. 2
If the person in adverse possession, i.e., possessory owner is wrongfully
deprived of the thing by a person other than the true owner; that person cannot
set up the defence of jus tertii, that is, he cannot plead that the thing does not
belong to the possessory owner either; 3 In _o ther words, a possessory owner's
possession shall be protected against -~.11 ·e.J:<cept the true mvner. This. rule ·is
justified on the ground of Inaintenance of peac~ and order and to prevent misuse
of force.
2. Prescription.-Prescription may be defined as the effect of lapse of time.
in the creation and extinction of a legal right. It is the operation of time as a
vestitive fact. It has two aspects, namely, positive or acquisitive and negative
or extinctive. The creation of a right by the lapse of time is called the positive
or acquisitive prescription whereas the extinction of a right by the lapse of
time is called extinctive or negative prescription. The person who is in
continuous long possession adverse to its owner for an uninterrupted period of
twelve years, acquires ownership of the land and the owner loses his ownership
after the lapse of this period. Again, extinction of a right to sue for a debt after
three years from the time at which it first became payable is an example of
negative prescription.
The basis of prescription is to be found in the presumption of coincidence of
possession and ownership. The fact that a thing is possessed is de facto ·
1. In Re Bell, (1886) 34 Ch. D. 262.
2. Fitzgerald, P.J.: Salmond on Jurisprudence, (12th ed.) p. 434.
3. ,._ •y v. Delomirie, (1722) 1 Str. 504.
PROPERTY 489.
evidence that it is owned de jure and the fact that it is _not possessed raises, a
presumption that it is not owned. Thus want of possession is evidence of title . .
Want of possession for a long time is evidence of want of title, and as the time
passes the evidence in favour to title also fades away cll\d presumption against
it grows stronger.1
Negative prescription is common to law of property and obligat1ons.
According to Salinond, negative or extbctive prescription is of two kinds,
namely, (1) Perfect, and (2) Imperfed. Perfect negative prescription results into
destruction of principal right itself whereas imperfect prescription destroys
only an accessory right of action. The destruction of ownership of land by
adversary possession for uninterrupted period of twelve years is an illustration
of perfect negative prescription. The extinction of the right of recovery of debt
after the expiry of three years from the date it first became due, is an example
of imperfect negative prescription because it destroys the creditor's right to sue
for recovery of the debt but not the debt itself.
lt is significant to note that the law of prescription is based on the general
principle that law helps the vigilant and not the dormant. 2
3. Agreement.-Property may also be acquired by agreement which is
enforceable by law. Paton defines agreement as an expression by two or more
persons communicated to each other, of a common intention to affect the legal
relatio·ns between them. It therefore, follows that an agreement has four
essential elements, namely, : -
. 1. it being a bilateral act, there should be two or more parties to an
agreement;
2. mutual consent of the parties;
3. it should be communicated; and
4. there should be common inention to affect the legal relationship.
As a proprietary right in rem, agreement is of two kinds, namely, (i)
Assignment, and (ii) Grant.
An assignment transfers the existing rights from one owner to another, e.g.,
assignment of a subsisting lease-hold from assignor to the assignee.
Under a grant, new rights are created by way of encumbrance upon the
existing rights of the grantor, e.g., grant of a lease of land is the creation of
agreement between granter and grantee.
Agreements may either be formal or informal. Formal agreements are
written and require the formality of registration and attestation of the deed to
be completed before they are effective. Informal agreements are verbal and do
not require any formality. The Roman law, however, required that an
alienation during life time of the person should not only be by an agreement
1. Fitzgerald, P.J.: Salmond on Jurisprudence, (12th ed.) p. 435.
2. Vgiliantibus non dormientibus jura subveniunt.
 490 JURISPRUDENCE AND LEGAL THEORY
. \
between the partjes but there should also be• delivery of possession.1 This in .
other words, meant that alienation was conceived to consist of the essential
element of transfer of possession. In English law, until the year 1845 coveyance
of land was not possible without the delivery of possession and no deed of
conveyance could be effective without delivery of possession. But in actual
practice, the rule was evaded for centuries by taking advantage of fictitious
delivery of possession under the Statute of Uses. The Statute2 of the year 1845,
however, modified this rule and thereafter the ownership of land could be
legally transferred without the possession of it.
As rightly pointed out by Salmond, it is an important principle of law of
agreements that the title of an assignee or a grantee cannot be better than that
of his assignor or grantee. The general rule is that no one can transfer a better
title than what he himself possesses. This is expressed in the latin maxim
nemo plus juris ad alium transferre potest, quam ipse haberet. This rule js,
however, subject to following two exceptions. 3
(i) In case of a trust, the legal ownership is with the trustee and the
equitable ownership is that of the beneficiary. Thus there exist two separate
ownerships due to separation of legal from equitable ownership. The trustee
holds the property on behalf of the beneficiary, and not for himself, and
therefore, the obligation of this trusteeship is an encumbrance upon trustee's
title. If the trust property is sold to a bona fide purchaser for value and without
notice, he shall acquire a better (unencumbered) title to the property so
purchased. In simple words, if the third person (bona fide purchaser) purchases
the trust property for value and without the knowledge of the existence of the
trust, he shall acquire better title than the trustee according to the equitable
doctrine of purchase for value without notice. 4
(ii) The second exception to the general rule that no one can transfer a
better title than what he himself possesses is where the possession of a thing is
in one man and the ownership of it is in another. In such cases, the possessor is
allowed to pass a good title to one who deals with him in good faith believing
him to be the true owner. The most striking example . of this is the case of
negotiable instruments, a possessor of a bank-note may have no title to it; for he
might have found it or stolen it; but he gives a good title to any one who takes it
from him for value and in good faith. Likewise, merchantile agents, in
possession of goods of their principals, can transfer the ownership of them
whether they are authorised to sell them or not.5
The acquisition of property by living persons is possible through
possession, prescription and agreement whereas property can be acquired by
inheritance by the heirs and successors of the deceased. Thus inheritance is also
one of the modes of acquisition of property.
1. In Roman law, delivery of possession was called "traditi.o ".
2. Statutes 8 and 9 Viet. c. 106, Section 2.
3. Section 41 of the Transfer of Property Act, 1882. ·
4. This is an exception to Section 63 of the Indian ·1rusts Act, 1882.
5. Fitzgerald, P.J. : Salmond on Jurisprudence, (12th ed.) p. 442.
PROPERTY 491
4. Inheritance ..;_The right of inheritance is founded on the assumpHon
that property serves as a best means of social sec_uri~. _Security of food,
dwelling house and means of living to the mem~ers ma J~mt f~mily was t~e
foremost obligation of the Karta which barred him fr<:>m ahena~g th~ family
property except for legal necessity and family benefit or seekmg rehef fr<:>m
distress. I This in tum conferred right .of inheritance to the coparceners which
included right to be maintained out of family property ~d to cl~im ~artition as
co-owners. Even the illegitimate sons, who were not entitled_t~ mhent property .
as heirs, were required to be maintained by their father. 0itakshar~ ~les of
succession regulated the law relating to inheritance applymg the prmc1ple of
survivorship. The wife, widowed mother, minor sons and daughters as also a
child in mother's womb (unborn) were entitled to inherit property as successors
of the deceased and they could not be deprived of this right by alienation or
otherwise. 2
The death of the owner of property could result in two kinds of rights,
namely-(1) inheritable, and (2) un-inheritable rights.
A right is inheritable if it survives its owner and it is uninherit~ble if it
dies with him. Proprietary rights are inheritable and most personal nghts are
uninheritable. But there are certain exceptions to this general rule. For
example, the right of action survives the death of both parties as ~ general
rule. Proprietary rights may be uninheritable in case of a lease for hfe of the
lessee only or in case of joint-ownership.
The rights which a dead man leaves behind him_ v~~t in his
representatives or successors. But he has also to . bear the hab1hty of ~he
deceased. This liability is, however, limited to the amount of property which
he has acquired from the deceased. Thus inheritance is some sort of legal and
fictitious continuation of the personality of the dead man. 3
Succession to the property of a person may either be testate or it may be
intestate, i.e., by means of a will or without a will. If the decease_d had i:nade a
will, succession would take place according to the terms to _the will. But 1f_the~e
is no will then succession will take place by the operation of law which 1s
known a; non-testamentary succession. In case there are no heirs of the
deceased, his property shall vest in the State.
The power of a person to dispose of his property by testament (will) is
subject to the following limitations : -
i
L (i) Limitation of time.-No person can be allowed to vest his property~
perpetuity, that is, the testator cannot ~ontrol the devolution of the estate m
property for an indefinite period. In Indian ~aw~ the _property cai:not be vested
by the testator beyond the period of his hfe time plus eighteen years
I. .Maine: Hindu Law and Usage, (1938), p. 822.
· 2. Mitakshara II V 5.
3. Atchuthen Pillai, P.S. : Jurisprudence And Legal Theory, (1985) p . 219.
492 JURISPRUDENCE AND LEGAL.TIIEORY
thereafter. 1 He must so order to dispose of hi~ property that within this period
the whole of it shall become vested absolutely in some one or more persons, free
from all testamentary conditions and restrictions. Any testamentary devolution -
beyond the prescribed period mentioned above, shall render the disposition
wholly void under the English law, but in Ind!a, it shall be void only to the
extent of excessive period beyond life-time of the testator plus eighteen years.
(ii) Limitation of Quantum Amount.-In most legal systems, a testator
cannot dispose of his entire estate, instead he htis to leave a certain portion of
it for those to whom he owes a legal duty to support such as wife, children etc.
In other words, a testator can dispose of only a certain portion of his estate by a
will and has to set aside the rest of the portion for those whom he is legally
bound to support. The rule under Mohammadan law that no Muslim can
bequeath more than one-third of the surplus of the estate after providing for
his funeral expenses and payment of debt unless the heir's consent to the same is
based on this limitation. Hindu law permits a person only disposition of his
self-acquired property and the ancestral property shall devolve in the heirs
according to the rules of Hindu Succession Act, 1956. The old texts of Hindu law
also contain certain rules about disposition of property which are akin to
modem concept of 'wiJl'. Thus Katyayan states, "what a inan has promised, in
health or sickness, for religious purpose must be given and if he dies without
giving it, his son shall doubtless be compelled to deliver it". How the concept of
will gradually evolved has been elaborately discussed in Tagore v. Tagore.2
Initially, the Hindu Wills Act was passed in 1870 which was replaced by the
Indian Succession Act, 1925 and thereafter the Hindu Succession Act was
enacted in 1956.
(iii) Limitation_ of Purpose.-A person while exercising power of
testamentary disposition may provide that his estate may be used by his heirs
and successors for benefit of other persons who survive him. However, he cannot
validly leave any direction in the will which is against public interest, nor can
he withdraw the property from Jhe .use of the living persons. For example, he
cannot leave a direction in his will that his money be buried in the grave along
with his dead body or thrown into the sea,3 that his estate or land shall lie
waste after his death. Such a testamentary disposition shall be wholly void.
In conclusion, it may be stated that the concept of property has a special
significance in jurisprudence because the determination of proprietary rights
such as ownership, title etc. is solely based on property. The concepts of
'ownership' and 'possession' have also originated from the conception of
property. Again, rights and duties are also closely related to property. It is for
this reason that the law relating to property has been developed as an
independent branch of law in jurisprudence. The estate or property for which
there is no heir or succe&sor, shall vest in the State. 4
L Section 14 of the Transfer of Property Act, 1882.
2. (1872) 1 I A Sup. Vol. 57, 68.
3. Brown v. Burdett, (1882) 21 Ch. 0. 667.
4. This is calle<i bona vacantia in law.
PROPERTY 493
The Rule Against unjust Enrichment
A person is said to have unjustly enriched himself when he takes ·or
retains some economic benefit to himself at the cost of another in contractual or
property relations. Adverse poss~ssion is. the best illustration of unjust
enrichment. In the English common law, the rule against unjust enrichment was
developed as a principle of equity -and good conscience in the realm of quasi-
contract. Explaining the principle G.W. Paton .observed that a person holding
title to property is under an equitable duty to restore or convey it to another on
· the ground that he would be unjustly enriched if he were permitted to retain it.1
French law also forbids a man to enrich himself at the cost of another.
The rule against unjust enrichment is ·also accepted in the Indian legal
system in order to remove imbalances in economic relations and ensure fair
utilisation of property as an instrument of sochl justice. It seeks to ensure
fairness in economic relations. The deletion of property right from Part III of
the Constitution2 and placing it under Article 300-A as a legct.l right has also
been done in the larger interests of social justice adopting a functional conscious
approach to law of property.
Right to Property-in India
After the Indian independence when the Constitution of India came into
force on 26th January, 1950, the right to property was included as a
'fundamental right' under Article 19 (1) (f) and Article 31 in Part III, making it
an enforceable right. However, during the first decade of independence era, it
was felt that right to property as a fundamental right was a great impediment
in ushering a just socio-economic order and a source of conflict when the State
was to acquire private property for public purposes, -particularly expansion of
rail, road and industries etc.
In order to get rid of this hurdle, the Supreme Court in the historic
Kesavananda Bharti's 3 case held that right to property is no part of the basic
structure of the Constitution and therefore, Parliament can acquire or take
away private property of persons for concerned good and in public interest.
Thereafter, the Parliament passed the Constitution (44th Amendment)
Act, 1978 which repealed right to property enshrined in Article 19 (1) (f) an~
Article 31 taking it away from the category of fundamental rights and made it
as ordinary legal right to be regulated by other law. 4 However, the Supreme
Court in Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh 5 has
made it clear that the executive cannot deprive a person of his right to
property without the authority of law. The State ~an acq~ire a person's
property for public purpose on payment of compensahon, 6 which need not be
L Paton, G.W.: A Text Book of Jurisprudence, (1972) p. 485.
2. The Constitution (44th Amendment) Act, 1978.
3. Kesavananda Bharti v. State of Kera/a, AIR 1973 SC 1461.
4. Article 300-A inserted by the Constitution (44th Amendment) Act, 1978 w.e.f. June 20, 1979.
5. AIR 1982 SC 32 (48)
6. Chameli Singh v. State of U.P., AIR 1996C 1051;
494 JURISPRUDENCE AND LEGAL THEORY
necessarily just equivalent of the val~e <?f\ prope~ty so ac~uire~; ~ut such
compensation must not be illusory and irrat10nally disproportionate.
The latest position with regard to pro~erty in Indi~ is well e:'pressed _b
the Supreme Court of India in Indian Handicraft Emporium v. U~ion of India,
1 22
wherein the Court observed that "ri_ght to property is a human nght as also _a
constitutional right under Article 300-A, but it i~ not a fundamental right. It is
indeed a statutory right but each and every claim to property would not be a
property rights. 2
000
1. AIR 2003 SC 3240 (3267) .
2. P. 'f. Municcl1ikk.a11na Reddy v. Revamma, AIR 2007 SC 1753 (Para 15).
LEGAL PERSONALITY
The main object of law is to regulate the relationship between individuals
in the society. The validity of the acts and omissions of persons is determined
on the basis of their reasonablenss. All those acts which do not adversely affect
the interests of others are held to be lawful whereas the acts1 which interfere
with the rights of others are called unlawful. The law imposes certain duties
on individuals for the protection of interests of mankind. Therefore, rights and
duties form the basis of judging the legality of man's acts. The law imposes
liability for unreasonable and unlawful acts, the enforcement of which is
ensured through legal sanctions. The law being concerned with regulating the
human conduct, the concept of legal personality constitutes an important subject-
matter of jurisprudence because there cannot be rights and duties without a
person.
Origin of the concept of Legal Personality
The word 'person' is derived from the latin word persona which meant a
mask worn by actors playing different roles in a drama. Until sixth century the
word was used to denote the part played by a man in life. Thereafter; it began
to be used in the sense of a living being capable of having rights and duties.
A 'person' is generally defined as being a subject or bearer of a right. But
this is rather a too narrow interpretation of the term as a person is subject to
duties as well. Subjects of rights or of duties are in general individual human
being, but law also recognises certain groups of persons or of property, which
also capable of being subjects of rights and duties by conferring artificial
personality to them.
Thus, there are generally, two types of person which the law recognises,
namely, natural and artificial. The former refers to human beings while latter
to other than human beings which the law recognised as having duties and
rights. One of the most recognised artificial person is corporation.
Many writers have restricted the use of the term 'personality' to human
beings alone because it is only they who can be subject-matter of rights and
duties and therefore, of legal or juristic personality. But it must be stated that
the term has a far wider connotation in law and includes gods, angels, idols, 2
corporations3 etc. although they are not human beings. Conversely, there may
1. Legally speaking 'acts' also include omissions.
2. In India, idols are legal persons as decided by the Privy Council in Pramatlia Nath Mullick v.
Pradyuma Kumar Mullick, 1925 LR 52: Ind. App. 245.
3. Saloman v . Sa!oman, (1987) AC 22.
( 495)

496 JURISPRUDENCE AND LEGAL THEORY
be living persons such as slaves, who were no\ treated as 'person' in law because
they were not capable of having rights and duties. 1 Likewise, in Hindu law an
ascetic (sanyasi) who has renounced the world ceases to have any proprietary
rights and his entire estate is passed on to his heirs and successors and his legal
personality is completely lost.
Human beings are, no doubt, units of society and were in _existence prior to
evolution of both, law and society. Since laws are made by individuals and for
them, jural relations between in.dividuals came to be recognised for legal
purposes. Human being as a legal person, therefore, implies a multitude of
claims, duties, liberties, liabilities etc.
However, with the development and advancement of societies, it was
realised that treating only the human beings as 'persons' in law would lead to a
good deal of needless perplexity, which could be avoided by conferring legal
personality on certain jural relations applicable to other than human beings for
the purposes of law. Thus, emerged the concept of artificial or legal personality
in the -realm of jurisprudence.
Legal Personality is a fiction of Law
The artificial personality conferred on certain non-living entities and
inanimate objects and treating them as 'persons' is creation by fiction of_ law
introduced for the purpose of bestowing the character and properties of
individuality on a collective body of persons. In simpler words, fiction of law is
something false which law assumes or accepts as true. For example, a company
or a corporation or an idol though not a natural person, is treated as a legal
person by fiction of law with a view to determining their rights, claims, duties,
obligations, liabilities etc.
Definition of 'Legal Person'
Jurists have defined 'persons' in different ways. The German jurist
Zitelmana considers 'will' as the essence of legal personality. To quote him,
"personality is the legal capacity of will, the bodiliness of men for their
personality a wholly irrelevant attribute".
Salmond defines a 'person' as, "any being to whom the law regards as
capable of rights or duties. Any being that is so capable, is a person whether
human being or not and nothing that is not so capable is a perscn even though he
be a man".2
Gray defines a 'person' as "entity to which rights and duties may be
attributed". Any being that is capable of holding a right or duty, whether it be
a human being or not, is 'person' in law. There may be a person who has duties
but no rights such as 'slaves' when slavery was prevalent.
According to G. W. Paton, legal personality is a medium through which
some such units are created in whom rights can be vested.
1. Slavery is now completely abolished in all civil societies of the world.
2. Fitzgerald P. J.,: Salmond on Jurisprudence (12th: ed) p. 299.
PROPERTY 497
. A jur~stic person is not a _human being. It may be any other subject-matter,
eith_er a thing or a_ mass of property or group of human beings to which law
attributes personahty. In other words, juristic persons may be defined as thi
mass _of property or an institutio1_1 upon_w~~~ the law confers a legal status ~d
who m the eyes of law possess rights, habihhe~ ·and duties as a natural person.
. Briefly stated,_ a p~rson may b~ a l~gal person without being a Ii.uman
b~m~. ~or ex~mple m I:mdu law, an idol is a legal person.l Legal personality is
a Juristic device by which law confers certain powers and capacities on artifical
persons.
Legal status of Unborn Person
The law attributes legal personality to unborn children. A child ·
mother's womb is by ~ction treated as already born and regarded as person f~:
many purposes. A gift may be made to a child who is still in the mother's
womb. ·
Ownership may be vested in a child in mother's womb ·(en ventre sa·
mere) and such a child constitutes life for the purpose of the rule against
perpetuity. 2
The Hindu law of partition requires a share to be allotted to a child in
mother's w~mb al?ng with the other living heirs. However, if the child does
not !a~e b1~th ahve, his share may be equally partitioned between the
surv1v~g heirs. The proprieta~y rights of an unborn child are fully recognised
by ~dian law. Under the Indian Penal Code, injury to a child in womb is a
pui:1-ishable offence. 3 Doing something which prevents or obstructs the safe
delivery of a child taking birth alive has also been considered as an offence
under !he criminal law. 4 Tims a child in mother's womb is entitled for legal
protection under. the criminal law.
Pre-nata_l ~xist:nce of child as a legal person is also recognised for the
purposes of civil actions. Thus, a child can succeed in torts (after it is born) for
damages caused by a pre-natal injury to its mother.5 Damages may also be
recovered under the Fatal Accidents Act, 1976 for the benefit of a posthumous
child. .
T~e rights conferred on unborn children are, however, contingent
~ependmg upon his taking birth alive, when they are transformed into vested
rights: The i:ransfer of Property Act, 1882 also extends protection to the
proprietary rights in favour of unborn persons. Its object is to protect the
property for too long a period from the possibility of alienation by their owners
being unborn persons.6
l. Pran•.ith Nath Mullick v. Pradyum Nath Mullick, (1925) 52 IA 245.
2. Elliot v. Lord Joicey (1935) AC 209.
3. Sections 312, 313 and 316, I.P.C.
4. R. v. Shepherd, (1919) 2 KB 125.
5. Marchandise Transport Ltd. v. British Transport Commission, (1962) 2 QB 173.
6. Venkata Subbarao, G. C. : Jurisprudence & Legal Theory, (9th ed. 1991) p. 222.
498 JURISPRUDENCE AND LEGAL THEORY
The Canadian law also recognises t):ie legal personality of an _unborn
child. In the historic case of Montreal Tramways Co. v. Leveille, 1 ~erein a
claim was made by female infant against · the tramway company for the
deformity caused to her while in her mother's womb due to defendant's
ne·g ligence. The Court awarded damages. The Irish Court, ~ad, ho":ever,
denied damages to an infant child who claimed damages against a railway
company for injuries inflicted upon her while she was in her mother's womb
through a collision due to the defendant's negligence. 2 The Court by 2: 2 ruled
that the railway company owed no duty of care towards a person whose
existence was unknown to them. But the Court did not specifically say that
unborn child has no right to claim damage for personal harm. · The reputation of dead men is to some extent protected by the law. The
· TI1e recognition of legal personality of unborn persons is further confirmed
by the provision in English law that a pregnant woman sentenced to death
shall be respited as ·of right, until she delivers the child. Later, such expectant
mother were sentenced to life imprisonment instead of death under the Sentence
of Death (Expectant Mothers) Act, 1931.
Significantly, Paton does not recognise a child in the mother's womb as a
legal person because he is without rights. 3 In this view, legal personality is
conferred on a child only after he is born alive and completely separated from
his mother's womb. It is, however, submitted that this. view is not tenable as
most legal systems of the world have incorporated provisions in their laws
extending legal protection and safeguarding the contingent rights of an unborn
child.
Legal Status of Dead Person
Salmond observes that generally speaking, the personality of a human
being may be said to commence with his birth and ceases with his death.
Therefore, dead men are no longer persons in the eyes of the law. They cease to
have rights since they cease to have any interests nor do they have any duties.
A dead man's corpse is not 'property' in the eyes of law. It cannot be disposed of
by an instrument. Earlier, it was held that a person cannot, during his life-time,
make a will disposing of any part or organ of his body4 but there has been a
change in trend in modern time and today it is perfectly legal to donate eyes or
any part of one's body for the progress of medical science and in the interest of
humanity. · 1. R. v . Stewart, (1840) 12 AD and E I 773.
Salmond points out three things in respect of which anxieties of living
men extend beyond the period of their deat:.s, of which law will take notice.
They are dead-men's body, his reputation and his estate. 5
1. (1933) 4 DLR 337 (Canada).
2. Walker v. Great North Rly. Co., (1890) 28 LR 699.
3. Paton, G.W. : A Text Book of J11risprude11ce, p. 252.
4. Williams v. Williams, (1882) 20 Ch. D 659.
5. Fitzgerald, P.J.: Salmond on Jurisprudence, (12th ed.), p. 301.
PROPERTY 499
Although the dead man's corpse is the property of no one but the law seeks
!o ensu~e its d~cent burial1 or cremation.2 The criminal law provides tha_t arty
~mi:u~ation ag~m~t a deceased person, ifit harms the reputation of that person
1f h~mg an~ 1s mtended to hurt the feelings of his family or other near
relatives, shall be an offence of defamation under Section 499 of the Indian
Penal Code.3
. The Supreme · Court in Ashray Adhikar Abhiyan v. Union of Jndia4 has
held that even a homeless person when found dead on the road; has a right of a
decent burial or cremation as per his religious faith.
defamation against a dead person is no doubt punishable under the criminal
law but only when it affects the interests of his relatives and near-ones who are
living. The right so protected is in reality not that of the dead man but ·that of
his living decendants.s _
It is true that dead persons are not recognised as legal persons but the
t~sta~entary disposi~ions of the dead ~re carried out by law. A person can, by
his will. make a vahd trust for repairs and maintenance of the graveyard
b~cau~e it am~unts to a charitable or public tmst but he cannot, by a direction in
his wil! provide tha~ certain part of. his estate shall be permanently used for
the maintenance of his own grave or tomb. Such a direction would be void and
unenforceable being against the rule of perpetuity.6 The law of succession
permits the desires of the dead man to regulate the action of his successors.
Whatever is gifted by the deceased for a charitable purpose, shall be
enforceable by law and the testament (i.e., will) to that extent shall be valid.
Legal Status of Animals
Law ~oes not recognise beasts or lower animals as persons because they are
merely !hmgs and have no natural or legal rights. Salmond regards them as
mere obJects of legal rights and duties, but never the subjects of them.
Beasts being incapable of legal rights and duties, their interests are not
recognised by law. Though legal history reveals that archaic codes contained
prov_is_ion~ regarding punishment to animals if they were found guilty of
hom1c1de. Even under the modem law the trespassing beast may be distrained
2. R. v. Prince, (1884) 12 QBD 247.
3. Explanation I of Sec. 499, LP .C.
4. AIR 2002 SC 554.
5. R. v. Ensor, (1887) ILR 366.
6. Drniviaszmdaram v. Subramania, 1945 MLJ 210 (Mad).
7. Sutherland refers to certain instances when beasts were punished. If an ox gore a man or a
~oman to death, then he was stoned and his flesh was not eaten. In Germany, a cock was
charged and acct~s~d of contumacious crowing. It was brought in the witness box and tried.
But_the Counsel railed to prove the innocence of his feathered client hence it was killed. In
an~1cnt Greek law also _th~re are ev_id~nces of animals and trees being punished like human
bcmgs-Sutherland: Pr111c1ples of Crzmmologt;, p. 44.
 500 JURISPRUDENCE AND LEGAL THEORY
damage feasant, and detained until its owner\or someone else interested irithe
. beast pays compensation to the person wronged. · .
Sutherland, iri his Principles of Criminology, has referred to ari
· interesting trial of some rats in 1519. They were charged and tried for
· ravaging the fields of a farmer. The counsel for the defendant rats pleaded
that no doubt their clients had caused severe damage to the plaintiff but at the
same tune the numerous ·holes made by their •clients · made the soil of the
plaintiff more fertile. The Court rejected the defence and awarded the sentence
of punishment. The Court, however, ordered that while executing the sentence,
care should be taken that the rats are duly protected from dogs, cats, owls etc.
so much so that taking a lenient view towards pregnant female-rats, the Court
ordered to stay the execution of their sentence until they delivered the off-
springs.
The modem law, however, holds the master liable for the wrong caused
by .their pets, beasts and animals. The liability so imposed on the master does
not arise out of the principle of vicarious liability but because of his implied
negligence in not keeping the animal well within control. Likewise, a wrong
done to a beast may be a wrong to its owner or to the society of mankind, but not
to the beast The law, however, seeks to extend protection to animals in two
ways, namely, (1} cruelty fo animals is an offence, 1 and (2} a trust for the
benefit of a particular class of animals as opposed to one for individual animal
is valid and enforceable as public and charitable trust. For example, a trust for
the maintenance of a home for stray-dogs and broken-down horses was held to
be a valid and enforceable trust being charitable in nature. In Re Dean, Cooper
Dean v. Stevens, 2 a testator vested his property in trustees for maintenance of
his horses and hounds. Mr. Justice North held that it was not a valid trust-
enforceable in any way on behalf of these non-human beneficiaries. Therefore,
the trustees were free to spend money in the manner indicated by the testator if
they so pleased, but even if they did not apply the money for this purpose, it
would not amount to a breach of trust. It is thus clear that animals and beasts
neither have rights nor duties and are therefore, incapable of sustaining a legal
~rsonality. As Salmond rightly suggests, the duties towards animals are in
fact duties towards the society itself. The society does have an interest in the
protection and well-being of the animals.
A reference may also be made about the police-dog used for detection of
crime and criminals. Despite the fact that they play a crucial role in
apprehending offenders, it must be stated that a conviction cannot be based
solely on the evidence of a police-dog unless it is corroborated by other
~upporting evidence. The reason being that the police-dogs cannot be subjected
to cross-examination like human beings. 3 This again s· .pports the contention
that animals do not have legal personality.
1. The Prevention of Cruelty to Animals Act, 1960 (Act No. 59 of 1960).
2. (1889) 41 ~- D. 552.
3. Dr. Paranjape, N.V.: Criminology & Penology, (14th ed. 2009) p. 339.
· PROPERTY · soi ··
Legal Status of Idol and. Mosque . ..
It has been judicially recognised that idol is a juristic person •a nd as s~ch·it ·
a
can hold property. Its position is, however, like that of minor because the
priest, i.e., Pujari acts as a guardian to look after the interests of the idol i.e.
deity . .The Privy Council, in historic case of Prainatha. Nath Mullick v:
Pra~yumna !<umar Mullick, 1 held that an idol is juristic person and its wili as
to its location must be duly respected. The Court directed that idol be
represented by a disinterested next friend to be appointed by the Court.to put up
its.point of view. , · ,: . ·
Similar view was_r~iterated by the Supreme Court of India in Yogendra
Nath Naskar v. Commissioner of Income Tax,2 wherein it was held that an
~dol is a ~uristic p:rson capable of holding property and.of being taxed through
its s_hebaits w~o 1s entrusted with the possession and management of its
property. An idol can be treated as a unit of assessment for assessing its
liability under the Income Tax Act. The Court further observed that if the idol
(deio/) is allowed in law to own property, there is no reason why it s~ould not
be habl~ to b~ taxed under the law of taxation. It is because of the legal
personahty of idols that the rule against perpetuity does not apply in case of
religious endowments.3 · ·
The Supreme Court in Devkinandan v. Muralidhar4 ruled that the
. property of Hindu temple or an idol vests in the idol itself while its possession
· _ and management vests in Shebait as manager of the estate.
However, the Supreme . Court in . Krishna Sfngh v. Mathura,5
distinguished the legal position of a Math from that of temple and held that a
Math is a religious institution site generis unlike a temple where presiding
element is the deity, whereas the presiding element of a Math is its Mahant or
Mathadhipati. The property belonging to Math is, in fact, attached to office of
Mahant and passes by inheritance to one who fills the office. The head of a
Math is not a trustee in the sense in which the term is generally understood but
in legal contemplation he has an estate for life in its present endowments artd
then absolute property is the income derived from the offerings of his
followers. Subject to the burden of maintaining the institution, he is bound to.
spend large part of incomes from offerings in religious or charitable objects in:
accordance with the usage. · ...· · ·
As regards the legal personality of a mosque, the courts have expressed • ·.
conflicting views. In Maula Bux v. Haftzuddin, 6 the High Court of Lahore held .
that a mosque was a juristic person capable of being sued. But the Privy Coun~ .· .
1. (1925) 52 IA 245.
2. AIR 1969 SC 1089.
3. Vijay Chand v. Kalipa, (1914) I Cal 57.
4. AIR 1955 SC 133.
5. AIR 1980 SC 707.
6. AIR 1925 Lah 372.
 502 JURISPRUDENCE AND LEGAL THEORY
. . \ .
held a contrary veiw in Masjid Shahid Gan/1 case and observed that mosques
are not artificial persons in the eyes of law and therefore, no suit can be brought
by or against them. However, the Privy Council left the questiol) open whether
for any purpose a mosque can be regarded as a juristic person.
· The Supreme Court in Siromani Gurudwara Prabandhak Committee v.
Somnath Das,2 has ruled that 'Guru Granth Sahib', the holy Granth of Sikhs is
a legal person. The Court, rejected the plea to compare Guru Granth Sahib with
that of an Hindu idol because idol-worship is contrary to Sikh religious tenets
but at the same time asserted that the Sikhs have the same regard and respect
for Guru Granth Sahib as the Hindus have for an idol. The Court further
pointed out that Gurudwara and Guru Granth Sahib are not two separate legal
entities. The existence of Gurudwara is because of the installation of Guru
Granth Sahib which is its nucleus.
i
i- .,
The Apex Court further made it clear that Guru Granth Sahib stands on
V altogether different footings than the Holy Books of other religions, namely,
Holy Quran of Muslims or Bible of Christians or Ramayan and Bhagwat Gita of
Hindus because the latter are not treated as legal persons. The justification for
treating Guru Gra1,th Sahib as legal person according to the learned Judges was
that it is treated and worshipped as 'Guru' by the Sikh Community and
considered as the soul and heart of Gurudwara. The Court had earlier ruled in
Pritam Das Mahcmt v. Siromani Gurudwara Management Committee, 3 that
the central point of worship in a Gurudwara is 'Guru Granth Sahib' which is
now a legal person.
Double Capacity distinguished from Double Personality
According to Salmond, English law recognises many different capacities in
which a persons rnay act. At times he has power to do an ad in an official or
representative C<\pacity which he has no power to do in his private or
individual capacity. Thus a man may have two or more capacities but he has no
power to enter into a legal transaction with himself. Therefore, double
capacity does not mean double personality. For example, a director of a
company may also be a trustee of a trust, thus he may have two distinct
capacities nevertheless his personality remains single. The English law did not
recognise double personality and therefore, a person could not sue himself, 4 or
contract with himself or convey property to himself in the guise of double
capacity. Salmond contemplates certain hardship 5 on account of non..:recognition
of double personality in English law but the exceptions being far and few,
the rule that no one can enter into a legal transaction with himself still
subsists.
l. (~ 940) 67 IA 251.
2. (2000) 4 sec 1~6.
3. (1984) 2 sec Mo.
4. Per Best, C.J. i1, Nenle v. Turton, (1827) 4 13ing. 149 (151).
S. For c): ,.,n n lQ, \vhcrn a creditor became his debtor's executor, the rule that he could not sue
hin, ~•Jl: ,CH debt crcc1tcd hardship, but it was mitigated by giving him right of retainer.
PROPERTY 503
Kinds of Legal Persons
The law recognises only two kinds of persons, namely, (1) natural persons;
and (2) legal persons who are artificial creations of law'.
A natural person is a living human being. But all living human beings need
not necessarily be recognised as persons in law. For example, before the
abolition of slavery, the slaves were considered as res and were devoid of any
legal personality for they could have no rights and duties. Again, lunatics and
infants, have only a restricted legal personalty. They do not have many civil
rights such as right to vote etc.
Legal persons, on the other hand, is any subject-matter to which the law
attributes legal personality. Legal personality being the creation of law, can be
conferred on entities other than human beings. As Salmond rightly observed,
"the law in creating legal persons, always does so by personifying some real
thing". He further pointed out that although all legal personality involves
personification, the converse is not true. 1 For illustration, the estate _of a dead
man, the jury, a Bench of Judges are all personifications but law does not confer
any legal personality on them.
Legal persons are artificial or imaginary beings to which law attributes
personality by way of fiction where it does not exist in fact. They are capable of
rights and duties like natural persons. · Hibbert prefers to classify legal persons
into three different categories :
(1) Certain non-living things can be conferred legal personality by
personification. The existence of such a legal person is real but its
personification is fictitious.
The Preadium Dominans and Pradium Servians under the ancient Roman
law of easements were the examples of such legal personality. The former
meant a piece of land which invested a· person with certain rights over the
latter, i.e., another piece of land. The owner of preadium servians was subject to
these rights. It was through a fiction of law that a presumption was made that
preadium dominans possessed a right over the preadium servians and that the
latter owed certain duties to the former. Thus both were regarded as legal
persons. The English law, however, does not accept these tenements as legal
person.2
(2) A collection of rights and duties may be vested in some real or
imaginary beings to whom personality is attributed by law. The heriditas
jacens under the Roman law is a peculiar example of such a legal personality.
The law conferred legal personality on the dead man until the heir had entered
upon his inheritance. Thus by fiction of the law, the dead man's rights and
duties were not extinct but continued even after his death and he was deemed to
be a legal person as though he was still alive. It may, however, be noted that
English law as also the Indian law does not recognise the fiction of heriditas
1. Fitzgerald, P.J.: Salmoi1d 011 Jurisprudence, (12th ed.), p. 306.
2. Fitzgerald, P.J. : Salmond on Jurisprudence, (12th ed.), p. 306.
504 JURISPRUDENCE AND LEGAL TIIEORY
I
jacens and the estate of the deceased vests ipsi, facto in his heirs and successors
immediately after his death.
(3) Fitzgerald, the leamed editor of Salmond's· Jurisprudence writes that
legal persons, being the arbitrary creations of the law, may be of several kinds.
The English law, however, recognises only a few kinds of legal persons .which
include--(1) corporations, (2) institutions, such as trade unions and societies and
associations, and (3) the estate or funds.
Corporate P~rsonality: Its Nature
Corporate personality is a creation of law. Legal personality of
corporation is recognised both in English and Indian law. A corporation is an
artificial person enjoying in law capacity to have rights and duties and holding
property. A corporation is distinguished by reference to different kinds of
things which the law selects for personification. The individuals forming the
corpus of the corporation are called its members.
Juristic personality of corporations pre'."'"supposes the existence of three
conditions. Firstly, there must be a group or body of human beings associated for
a certain purpose. Secondly, there must be organs through which the
corporation functions, and thirdly, the corporation is attributed will (animus)
by legal fiction. It is significant to note that a corporation is distinct from its
individual members. 1 It has the legal personality of its own and it can sue and
be sued in its own name. It does not come to an end with the death of its
individual members and, therefore, has a perpetual existence. However, unlike
natural persons, a corporation can act only -through its agents. Law provides
special procedure2 for the winding up of a corp<?rate body. ··
Besides, corporations the banks, railways, universities, colleges, church,
temple, hospitals etc. are also conferred legal persqnality. The Union of India
and the States are also recognised as legal or juristic persons.3
In certain cases, the corpus of the legal person is some fund or estate
which is reserved for certain special uses. For example, a trust-estate or the
estate of an insolvent, a charitable fund etc., are included within the term
'legal personality'. However, English law requires that these estates or funds,
to be recognised as legal persons, must be ~uly incorporated under the existing
law. The law does not believe in personification of these estates or funds,
instead, it personifies those corporate bodies which administer the estate or
fund.
The rights of corporations are numerous, such as right of holding property
or disposing it of, right of entering into contracts or and right to sue etc. They are
liable for their acts as also for the acts of their agents performed on their
behalf. The Privy Council in its landmark decision in The Citizen's Life
1. Section 34 of Companies Act, 1956.
2. Sections 433 to 526 of the Companies Act, 1956.
~ .n.• ~cle 300 of the Constitution of India.
PROPERTY 505
Assurance Company v. Brown, 1 has ruled that a corporation may also be held
liable for their acts implying malicious intention. ·
It may therefore, be said that 'artificial', 'conventional' or 'juristic'
persons, are such masses of property or groups of human beings as are in the eyes
of the _law capable of rights and liabilities, that is, to which the law gives a
status. ·
Characteristics of an Artificial Person
Artificial person differs •from those of a group of ·natural persons or from a
single natural person in the following aspects-
(1) Arti.ficial person is not merely the sum of total of its component
members, but something superadded to them; it may continue to remain
although one or all of them are changed.
(2) Its claims and liabilities are its own not of its constih,tent members.
(3) The property which it may hold does not belong to the members either
individually or collectively.
(4) Its agent, though appointed by a majority of the members, does not
represent them.
Corporations are of two kinds, namely, (1) Corporation Aggregate, and
(2) Corporation Sole.
Corporation Aggregate
The development of trade and COffil1\erce has necessiated grouping of jural
relations in such a way as to embrace collections of individuals organised into a
corporation aggregate. They can be created by (1) Royal Charter (in England) or
Parliament (in India); (2) Special Statute, or (3) By registration under the
Companies Act.
A corporation aggregate is an association of human beings united for the
purpose of forwarding their certain interests. Limited companies are the be~t
example of a corporation aggregate. Such a company is formed by a number of
persons who as shareholders of the company contribute or promise to contribute
to the capital of the company for furtherance of a common object. Their
liability is limited to the extent of their share-holding in the company. A
limited company is thus formed by the personification of the shareholders. The
property of the company is not th~t of the shareholders but its own property
and its assets and liabilities are different from that of its members. The share-
holders have a ·right to receive dividends from the profits of the company but
not the property of the company. 2 For certain purposes, company has an
independent existence from those of its members.3 It is for this reason that the
company may become insolvent but its members may still be rich and_wealthy.
. Conversely, the insolvency of the members does not adversely affect the
1. (1904) AC 426.
2. Colonial Bank v. Whilley, (1885) 30 Ch. D. 261.
3. Sa/oman v . Saloman & Co., (1887) AC 22.
506 JURISPRUDENCE AND LEGAL 1HEORY
\ .
company and it may continue to have a flourishing business. The death of
members does not finish the existence of the company. Gower cites a unique
example of this and writes that in the General Meeting of a company all the
members died due to a bomb-explosion but it did not affect the existence of the
company and it continued functioning as before. I
It must, however, be noted that a partnership firm is not a company in the
eyes of law. It represents onJy aggregate of the individual members. The
existing partners own the property and the debts. There cannot be one-man firm
but there can be a one-man company as held in the historic Saloman 's case.2
This judgment established the principle of corporate personality.
The facts of the case were that one Saloman was carrying the business of
boot and shoe manufacturing. He incorporated a company named "Saloman &
Co. Ltd". with seven subscribes consisting of himself, his wife, four sons and one
daughter. The company took over the personal business assets of Saloman for £
38,782 and in turn, Saloman took 20,000 share of£ 1 each, debentures worth£
10,000 of the company with charge on the company's assets and the balance in
cash. His wife, four sons and, a daughter took£ 1 share each. Subsequently when
company went into liquidation due to general trade depression. it owed debts
amounting to £ 17,000 to various unsecured creditors, who contended that
Saloman could not be treated as a secured creditor of the company in respect of
the debenture held by him, as he was· the managing director of one-man
company, which was not different from Saloman and the cloak of the company
was a mere sham and fraud.
At the time of liquidation, company's assets only totalled £ 6,000. The
trial judge and the Court of Appeal held that the creditors had the prior claim
to the assets since the company was a mere sham. However, the House of Lords
unanimously reversed the decision holding that the company was in law a
person distinct from Saloman and therefore, Saloman was preferentially
entitled to the assets as a secured creditor. Lord Naughten who delivered the
judgment observed :
"When the memorandum is duly signed and registered, though there
be only seven shares taken, the subscribers are a body corporate exercising
all the functions of an incorporated company ... The Company is at law a
different person altogether from subscribers to the memorandum, and
though, it may be that after incorporation the business is precisely the
same as it was before, and the same persons are managers, and the same
hands receive the profits; the company is not in law the agent of the
subscribers or trustees of them. Nor are the subscribers, as members, liable,
in any shape or form, except to the extent and in the manner provided by
the Companies Act".
Thus it was decided in_Saloman case that a corporate body has its own
existence or personality separate and distinct from its members and therefore, a
1. Go,ver : M odem Company Law, p. 76.
2. (1887) AC 22.
PROPERTY 507
shareholder cannot be held liable for the acts of the company even though he
holds ·virtually the entire share capital. The case also recognised the principle
of limited liability of a company. Therefore, where a shareholder has already
paid the full amount on the shares and is the holder of fully-paid shares, he
cannot be required to pay anything more to help to meet the obligation of the
company.I
Companies and Corporations are conferred legal personality with a view
to enabling them to carry on their -trading ot commercial functions for the
service of the community. Incorporated personality of a group of persons
functioning as an entity facilitates. conferment of rights and liabilities ~n
collective undertakings. This has been well expressed by the Supreme Court m
the case of State Trading Corporation of India v. The Commercial Tax Officer,2
as follow:-
"an incorporated company has a separate existence and the law
recognises it as a legal person separate and distinct from its members. The
new legal personality emerges from the moment of its incorporation and
from that date the persons subscribing to the Memorandum of Association
and other persons joining as the members are regarded as a body corporate or
a corporation aggregate and the new persons begins to function as an entity".
The death of share-holder or member does not affect the existence of the
company and it continues to exist because it has a perpetual existence.
The legal status and position of company has also been explained by the
Supreme Court of India in Tata Engineering & Locomotive Company Ltd. v .
State of Bihar3 wherein the Court observed, "the corporation .in law is equal to
a natural person and has a legal entity of its own". The entity of the
corporation is entirely separate from that of its shareholders and its assets are
separate from those of its shareholders.
. A corporation aggregate of many persons or groups may be invisible,
immortal and it may rest only in intendment and considerations of law. It has no
soul nor is it subject to imbecilities of body. Its will is that of the majority of its
members, and can be expressed by its agents. There are many wrongful acts of
which it is incapable of doing and its capacity for being the subject of certain
rights. 4
Utility of Corporation Aggregate
Professor Grant in his treatise 'On Corporations' has observed that
"perhaps it is by means of this human device of corporation aggregate that has
contributed to the development of civilization of Europe and the freedom of its
States.. ............ municipalities were furnished with a form of local self
1. Colonial Bank v . Wlzilly, (1885) 30 Ch. D . 261.
2. AIR 1963 SC 1811.
3. AIR 1965 SC 40 (46) .
4. Holland T.E.: Elements of Jurisprndencc (13th Ed. 2010) p. 342.

508 JURISPRUDENCE AND LEGAL TiiEORY
G~vemment which · never wore out. The chciritable trust could secure the·
obJects so lo~g as ~ch objects continued to protect, improve and encourage ~;
trad~, arts, m~~stries etc. and pr~served the institutions of learning, health
service and rehg10n for the promotion of human civilization" .1 ·
The various p~oses which artificial corporation aggregate may promote
and preserve may bnefly be stated as follows~
(1) Help and assist in the governance of the ~ountry through M · · l
Corporation, 1ocal bo d.1es, p anchayats, welfare organisations
· etc. uniopa
~2) Pr~mo!~ prof~ssio~alism through institutions, colleges impartin
technical, sc1entif1c, engmeenng, medical law, and other specialised courses. g
(3) Preserve ~d promote rel~gious harmony by constituting religious
trusts, Boards, learrung centres, charitable homes etc. ·
(~) ~rom~tioi:1 o~ scientific and artistic ferver through appropriate trusts
organ1sahons, instituhons etc. '
. (5) Promo!~ trade, c~mmerce and industries through Corporate houses,
Public sector utihty establishment, Private business houses, etc. , ·
. (6) General public service, through Medkal h~spitals Trusts
Orphanages, Rescue ho1r..es etc. · ' ·'
Lifting or Piercing the co·r porate Veil
. . I.t has been re~terated that by fiction of law, a corporation is clothed with
a d1s~ct personality, yet in reality it is an association of persons who are in
fact, ma way, the beneficial owners of the property of the body corporate A
company, being an artificial person, cannot act on its own, it can act 0 ~
through natural persons. · y
Undoub~edly, the whole law of incorporation is based ori ·the theory. of
co~~rate entity but the separate personality of the company and its statutory
privdeg~s should be used for legitimate business purposes only. Where the
lega~ en!1t! of the company is ?eing used for fradulent and .dishonest purpose,
the md1v1duals concerned w1H not be allowed to take the shelter behind
the corporate personality. The Court, in such cases, shall break through
the corporate shell and apply the principle of what is known as ~'liftin
· · th . ,, 2 ·. g or
p1e~cmg e corporate ve11 . That 1s, the Court will look .behind the corporate ·
entity. ·
Analysing the principle of lifting corporate veil, Professor Gower
obs~rved that there may be cases when the Court may deem it necessary to look
behind_ the. faca~e .of the company and its place of registration in order to
determine its residence and for this purpose the test laid down is the place of
central management and control. 3 · ·
1. Grant: On Corporations, p. 41.
2. ~~ons 45, 147, 212, 2~7 and 542 of the Companies Act, 1956 contain provisions relatin to
liftmg the ~~rate veil to reach the real forces of action behind the company's legal tac!ie.
3. Gower: Pnnaples of Modern Company Law, (4th Ed) p. 136.
PROPERTY 509
the Supreme Court in State of Uttar Pradesh v. Renu Sagar Power
Company observed that : -
"the veil of corporate personality even though not lifted sometimes, is
pecoming more and more transparent in modem corporate jurisprudence."
The corporate veil of a company may be lifted to ascertain the true
character and economic realities behind the legal personality of the company.
The company's separate personality may be disregarded in the following
cases:-
1. Where the corporate personality has been used for fraud or improper
conduct, the courts have lifted the veil and looked at the realities. The case of
Jones v. Lipman 1 is an illustration on· this point. In this case, A agreed to sell
certain land to B. Pending completion of formalities of the said deal, A sold and
transferred the land to a company which he had incorporated with a nominal
capital of£ 100 and on which he and a clerk were the only shareholders and
directors. This was done in order to escape the decree of specific performance in
·a suit brought by B. The Court held that A had created the company as a mask
to avoid recognition and, therefore, he must complete the contract.
The Supreme Court of India in Life Insurance Corporation of India v.
Escorts Ltd.,2 held that, "broadly speaking the corporate veil of a corporation
may be lifted where the statute itself contemplates lifting the veil or fraud or
improper conduct is intended to be prevented .......or where associated companies
are inextricably connected as to be in reality part of one concern".
In Singer India Ltd. v. Chander Mohan Chaddha 3 the scheme of
amalgamation was sanctioned whereby undertaking in India of an American
Company was amalgamated with Indian Company'. The corporate veil was
lifted under Section 34 of the Companies Act, 1956 in order to ascertain whether
corporate personality was being blatantly used as a cloak for fraud or improper
conduct.
4
The High Court of Delhi in P.N.B. Finance Ltd v. Shri Sital Prasad Jain
held that the doctrine of piercing the corporate veil may be invoked whenever
necessary by the Court in the interest of justice, to prevent the corporate entity
from being used as an instrument of fraud, and the fundamental principle of
corporate personality itself may be disregarded having regard to the exigencies
of the situation and for the ends of justice.
2. The corporate veil of the company may be lifted wherein a corporate
5
facade is in reality only an agency. For instance, In Re R. G. Films Ltd., an
American company produced film in India technically in the name of a British
company, 90% of whose capital was held by the President of the American
1. (1962) 1 WLR 832.
2. (1986) 1 SCC 264 (per Chinnappa Reddy, J.)
3. AlR 2004 SC 4368.
4. (1983) 53 Comp Cas 66.
5. (1953) 1 All ER 615.
510 JlJRISPRUDENCE AND LEGAL THEORY
Company which financed the prod:uction of\ the film. The Board of Trade
refused tc register the film as a British film artd stated that English company
acted merely as the nominee of the American corporation. The true character of
the company was American and not British.
The Supreme Court adopted a similar approach in Central Inland Water
Transport Corporation Ltd. v. Brojo Nath Ganguly 1 while considering the
question whether the appellant company was an agency or instrumentality of
the State for the purpose of Article 12 of the Constitution of India. The Court
observed, "for the purpose of Article 12, one must necessarily see through the
corporate veil to ascertain whether behind that veil is the face of an
instrumentality or agency of the state".
The Supreme Court in Subhra Mukharjee & another v. M/s. Bhart Coking
Coal Ltd. (BCCL) & othtrs 2 observed that the Court will be justified in piercing
the veil of incorporation in order to ascertain the true nature of the transaction
as to who were the real parties to the sale and whether it was between
husbands and wives behind the facade of separate entity of the company. In
this case, the directors of the company were brothers and the appellants were
their wives. The Court was convinced that the alleged transaction of suit
property was a sham, collusive and without consideration and was brought into
existence to avoid the effect of . take over of the property by the Central
Government due to nationalisation of coal mines. Therefore, the Court
dismissed the appeal holding that transaction was not bona fide and genuine
and there was no merit in appeal. · observed that if an order of the Court is deliberately and wilfully disobeyed by
. _3: Corp~rate veil may be lifted where the company is engaged in
achv1hes which are against the public policy. Thus in Connors Brothers v.
~onnor;, 3 the Hous_Q of Lords determined the character of the company as
enemy company, smce the persons who were de facto in control of its affairs,
were residents of Germany, which was at war with England at that time. The
alien company was not allowed to proceed with action as that would have
meant giving money to the enemy, which was considered as monstrous and
against "public policy".
· ~- For d_etermining the real character and status of the company, the court
may ignore its separate entity and lift the corporate veil as held in Daimler
~o. Ltd. v. Co~tinenttzl Tyre & Rubber Company. 4 In this case, a company
incorporated m England for the purpose of selling tyres manufactured in
Germany b~ a Ge~~n company, had all its shares except one held by the
G~r~an su~Jects residing in Germany. The remaining one share was held by a
Bnhsh subJcct who Was the secretary ofthe company. Thus the real control of
the English company was in' German hands. During World War I, the company
1. (1986) 3 SC 156.
2. AIR 2000 SC 1203.
3. (1940) 4 All ER 179,
4. (1916) AC 30'7.
PROPERTY 511
commenced an action ·to recover trade debts. The question therefore, was
whether company has become an enemy company consequent to World War I.
Th~ House of Lords, inter-alia held that the company was an enemy company
and observed :-
"A company incorporated in U.K. is a legal entity, a creation of law with
the status and capacity which the law confers. It is not a natural person with
mind or conscience. It can neither be loyal nor disloyal. It can neither be friend
nor enemy. But it can assume enemy character when persons in de facto control of
its affairs are residents in the enemy country or wherever resident are acting .
under the control of enemies".
In an American case, i.e., People's Pleasure Park Co. v. Rohleder, 1 the
Court refused to pierce the corporate veil where there was no danger to public
interest. In this case, certain lands were transferred by an ·Englishmen to
another perpetually restraining the transferee from selling the property to
coloured persons, i.e., Negroes. The transferee, however, transferred the land to
a company · which was exclusively composed of Negroes. Thereupon, the
petitioner brought an action against the company for annulment of the·
conveyance on the ground of breach of condition. Rejecting the contention of the
petitioners the Court held ~hat members, individually or collectively, are not
the corporation which has a distinct existence, quite independent and separate
from that of its members and therefore, transfer of land was valid.
The High Court of Delhi in Jyoti Ltd. v. Kanwaljit Kaur Bhasin, 2
a company, the public interest demands that company's corporate veil should
be lifted to find out the real persons who are guilty of disobedience for
punishing them for the contempt of the Court.
5. Where the corporate facade of the company has been used for evasion of
taxes or duties. 3 Thus In Re Sir Dinshaw Manakjee Petit, 4 the assessee was a
wealthy man enjoying large dividend and interest income. He formed four
private companies and agreed with each to hold a block of investment as an
agent for it. Income received was credited in the account of the company but the
company handed back the amount to him as a pretended loan. In this manner he
divided his income in four parts in a bid to evade tax liability. The Court
disregarded the corporate entity since it was solely being used to evade taxes.
The Supreme Court in Commissioner of Income-tax v. Meenakshi Mills
Ltd., 5 reiterated that in cases where it is found that the sole purpose of
incorporation was to evade taxes, the Court would ignore the concept of
separate entity and lift the corporate veil to look into the real transaction.
1. (1908) 109 Va 439 (US).
2. (1987) 62 Comp Cas 626.
3. Commissioner of fllcome-tax v. Meenukshi Mills Ltd., AIR 1967 SC 819.
4. AlR 1927 Bom 371.
5. AIR 1967 SC 819; Sec also Mc Dowell and Co. Ltd. v. Commercial Tax Officer, (1985) 3 SCC 230.
512 JURISPRUDENCE AND LEGAL THEORY
6. Where it is found that the sole purp~se of the formation of the new
company was to use it as a device to avoid or reduce payment of bonus to
workers, the Supreme Court pierced ·into the corporate veil to look into the real
transaction. Thus in Workmen of the Associated Rubber Industries Ltd.,
Bhavnagar v. The Associated Rubber Industries, Bhavanagar, 1 a new company
was created by the principal company with no assets of its own except those
transferred to it by the principal company, with no ~come or business of its own
except receiving dividends from shares transferred to it by the principal
company. The Supreme Court held that the new company was formed as a
device to reduce the gross profits of the principal company and thereby reduced
amount to be paid to the workers by way of bonus. The amount of dividend
received by the new company were therefore, ordered to be taken into account in
assessing the gross profit of the principal company. The Supreme Court in this
case observed "it is the duty of the Court, in every case where ingenuity is
expected to avoid taxing and welfare legislations, to go behind the smoke-
screen and discover the true state of affairs. The Court is not to be satisfied
with form and leave well alone the substance of the transaction".
7. The courts have sometime lifted the corporate veil in quasi-criminal
cases relating to companies in order to look behind the legal person and punish
the real persons who have violated the law. Thus the Supreme Court in Delhi
Development Authority v. Skipper Construction Co (P) Ltd , 2 held that the
Court can lift the corporate vei~ of the company to look into the misdeeds of its
officials and punish them by ordering forfeiture or attachment of the properties
acquired by the illegal and corrupt means by the real men behind the corporate
entity as also the properties of their family members.
In the case of Santanu Roy v. Union of India, 3 the High Court of Delhi
held that in case of economic offences the court is entitled to lift the veil of
corporate entity to pay regard to the economic realities behind the legal facet.
In this case it was alleged that the company had violated Section 11 (a) of the
Central Excise Salt Act, 1944. The Court held that the veil of corporate entity
could be lifted by the adjudicating authority so as to determine which of the
directors was concerned with evasion of excise duty by reason of fraud,
concealment or wilful suppresion of facts or contravention of the provisions of
the Act and rules made therein.
Apart from the purposes enumerated above when the corporate. veil of
incorporation may be lifted and its separate personality may be disregarded,
the Court may at its discretion decide upon the applicability of the doctrine
even in cases which are not covered by any of the situations referred to above.
Thus, in New Horizons v. Union of India, 4 the High Court of Delhi applied the
doctrine though the case was not covered by any of the situations in which the
doctrine could be applied. TI1e Court ruled that the law laid down in Saloman's
1. AIR 1986 SC l.
2. AIR 1996 SC 2005.
3. (1989) 65 Comp Cas 196 {Delhi).
4. (1994) Vol 13 Issue 7 CLA 429 (439).
PROPERTY. 513
case still holds good and the instances of piercing the ..c::orporate veil are the
exceptions though·their number is const~tly growing fast. ·
8. The. corporate veH of a ·company may. also be .lifted where company is
evading ·its social obligation. Thus, in Workmen of Associated Rubber Industry
Ltd. v. The Associated -Rubber Industry Ltd. Bhavnagar, 1 a new company was
formed wholly owned by the principal company with no assets of its own except
those transferred to it by the principal company, with no .business or income of
its own except receiving dividends from shares transferred to it by the principal
company and serving no purpose whatsoever except to reduce the gross profit of
the principal company.
The Supreme Court found that the creation of riew company was intended
as a device to reduce the amount of bonus payable to workmen of the principal
company and therefore, the separate existence of the · two companies had to be
ignored while computing the bonus. The Court further observed :
"It is the duty of the Court, in every case where ingenuity is expected
to ·avoid welfare legislations, to go behind the smoke.:..screen and discover
the true state of affairs. The Court cannot be satisfied with form and leave
well the substance of transaction".
Company or Corporation whether Citizen of India
The question whether company or corporation may be treated as citizen of
India came up for consideration before the Supreme Court in State Trading
Corporation v. Commercial Tax Officer, 2 · the Supreme Court held that a
company or a corporation could not be a citizen of India and, therefore, could not
claim, such of the fundamental rights, as had been conferred upon the citizens
only.
In this case, the State Trading Corporation was a Government company
registered under the Companies Act, 1956. It consisted of President of India and
. the Secretary to the Ministry of Commerce as its shareholders and enjoyed the
status of a private limited company. Answering in the negative, the Supreme
Court held that Indian Constitution does not define the term 'citizenship'. Part
II of the Constitution dealt with citizenship in certain circumstances only, but
the tenor of these provisions was such that they could not apply to ju~istic
person like a company or a corporation. The Citizenship Act, 1955 expressly
excludes a company, association or body of individuals, whether incorporated
or not, from the concept of a person under the Act. Thus, only a natural person
could be a citizen of India under the Constitution as well as under the
Citizenship Act.
The Supreme Court in Benett Coleman & Co. v. Union of lndia, 3 observed
that if an act of the State impairs the right of the share-holder as well as the
1. AIR 1986 SC 1.
2. AIR 1963 SC 811; See also Bar Council of India v. High Court of Kerala, AIR 2004 SC 2227.
3. AIR 1973 SC 106.
514 JURISPRUDENCE AND LEGAL THEORY
'
company, the Court would not deny to itself jurisdiction to grant relief.
Elaborating the point further. the Court observed :
"It is nowdear that fundamental rights of citizens are not lost when
they associate to form a company. When their fundamental rights are
share-holders ate· impaired by State action the rights of the company are
protected. The reason is not the Share-hqlder's rights are necessary
affected if the rights of the company are affected."
In R. C. Cooper v. Union of India, 1
the Supreme Court clarified that the
fundamental rights of the shareholders as citizens were not lost when all of
them join together to form a company.
The petitioners in thi~ case had argued that the policy .of nationalisation
of Banks had adversely affected their fundamental rig~ts conferred by Article
19 {l) (f) and Article 31 (2). The Court allowed the petition and observed that
when rights of the company and shareholders were involved, they cannot be
denied grant ofrelief as to their fundamental rights but it should not be mis-
interpreted to I'Il:ean that company may be treated as a citizen.
The Supreme Court distinguished between citizenship and nationality
and stated that. a Company or Corporation might have nationality, which is
determined by the ptace 6f its incorporation but it does not have citizenship. As
observed by Mac Naughten J. in Gasque v. Commissioners of Inland Revenue :2
"It is quit~ true that a body corporate cannot have a domicile in the
same sense as an individual, but by analogy with a natural person the
attributes of residence, domicile and nationality can be given to a body
corporate."
It is also well settled that a company incorporated in a particular country
shall have nationality of that country though unlike a natural person, it cannot
change its nationality.3
Corporation Sole
Corporation sole is an incorporated series of successive persons. It consists
of a single person who is personified and regarded by law as a legal person. In
other words, a single person, who in exercise of some office or function, deals in
the legal capacity and has rights and duties. A corporation sole is perpetual.
The examples of t:orporation sole are Post-Master-General, Public Trustee,
Comptroller & Auditor-General of India, the President of India, etc.
The main purpose of corporation sole is to ensure continuity of an office so
that the occupant (of office) can ac 1uire property for the benefit of his
successors or he m&y contract to bind or benefit them, and can sue for injuries to
the property while it was in the hands of his predecessor.
1. AIR 1970 SC 564.
2. (1040) 2 KB 80.
3. Kuenigle v. Dontters Marek, (1955) 1 All ER 46.
PROPERTY 515
According to Blackstone,1 a corporation sole, though it may hold lands,
cannot hold goods and chattels because such moveable property is liable to be
lost or embezzled, and would raise a multitude of disputes between the successor
and the executor, which the law carefully seeks to avoid.:This view regarding
limited attributes of a cm:poration sole also finds support in the decision of the
Chancery Court in Power v. Banks. 2 ·
A Corporation sole is distinguishable from "a mere succession of officers or
persons exercising the same rights". As Gray rightly pointed out, "If a
corporation sole exists, an occupant of an office can generally acquire property
for the benefit of his successors as well as himself, he can generally recover for
injury inflicted on property pertaining to the office while such property was in
the hands of his predecessor and he can sometimes enter into a contract which
will bind or endure to the advantage of his successors".3
Generally, corporation sole are the holders of a public office which are
recognised by law as corporation. The chief characteristic of a corporation sole
is its "continuous entity endowed with a capacity for endless duration".
A corporation sole is an illustration of double capacity. For instance, the
King of England exercises the function of the Crown and in his capadty as the
constitutional head, he can confer rights and duties upon himself as an
individual. The natural person may thus owe a duty to himself as a legal
person. Same is the position of the President of India. As regards ·the British •
Crown, it is generally said, ''The king is dead, long live the king". This proverb
indicates the double capacity of the Crown as a corporation sole, the first part
refers to the Crown as a natural person, i.e., individual, while the latter part
expresses his position as a legal personality. In simple words, it means that
even after the death of the king, his legal capacity as a Crown remains in
existence as a corporation sole.4
The object of corporation sole is similar to that of corporation aggregate. In
it a single person holding a public office holds the office in a series of
succession, meaning thereby that with his death, his property, right and
liabilities etc., do not extinguish but they are vested in the person who succeeds
him. Thus on the death of a corporation sole, his natural personality is
destroyed but legal personality continues to be represented by the successive
person. In consequence, the death of a corporation sole does not adversely affect
the interests of the public in general.
The Position of Corporate Personality in India
The concept of corporate personality is well recognised under the Indian
law. The position of the Karta in a Hindu coparcenary is an illustration on the
point. In coparcenary system although each member of the joint Hindu family
1. Blackstone: Commentaries, Vol. I, p. 478.
2. (1901) 2 Ch. 487.
3. Gray: Nature and Sources of Law, p. 57.
4. Blackstone Commentaries I, p. 249 quoted from Dias : Jurisprudence (First Indian Reprint
1994), p. 252.
516 JURISPRUDENCE AND LEGAL THEORY
I
has some rights and duties, but the .Karta is overall head of the joint family
who manages the entire family property. He has right to alienate the property
and other members of-the family are under his control.He can sue and be sued on
behalf of the joint family. ln_juristic terms, he is a corporation s·o le having a
double capacity, i.e., as a natural person he is the eldest member of the family
and as a legal person he is in the capacity of the Karta of the joint family.
Further, Hindu idols have been recognised as corporate entities under the
Indian law. It is for this reason that the rule against perpretuity does not apply
in case of religious endowments created in favour of Hindu idols.1
The Union of India and the States have also been recognised as corporate
entities under Article 300 of the Constitution of India. The President of India as
also the Governor of the State is a corporation sole like the B_ritish Crown.
The Ministers of the Union or State Government are not legal or
constitutional entity and therefore, they are not corporation sole. The reason
being that they are appointed by the President or the Governors and are
'officers' within the meaning of Articles 53 and 154 of the Constitution. They
are not personally liable for their acts or omissions nor are they directly liable
in a Court of Law for their official acts. It .is the State whether the Centre or
the federated unit which is liable for the tort or breach of contract2 committed
by a Minister in his official capacity. · two elements, namely, (i) single l~gal personality, and (ii) perpetual existence,
The Reserve Bank of India has a corporate existence because it is an
incorporated body having an independent existence. But the Union Public
Commission and a Joint Hindu family are not recognised as legal persons because
both these cannot hold property in their own names and can neither sue nor be
sued in a court of law. · Commenting on the advantages.of incorporation Palmer .observed, "the
A partnership firm is not a corporate entity3
and therefore, it can neither
sue nor be sued in its own name. The member partners cannot contract with their
partnership firm because a man cannot contract with himself.
Unlike a partnership firm which has no existence apart from its members,
incorporated company has a distinct legal or juristic existence independent of its
members: Under the law, a corporation or a company is a distinct entity (legal
persona) existing independent of its members. An incorporated company exists
as a complete being by virtue of its legal personality and is often described as an
artificial person in contrast with a human being who is a nati-1.ral person. A
company being a legal entity by itself, is separate and distinct from its
promoters, shareholders, directors, officers or employees and as such, it is
capable of enjoying rights and being subject to duties which are not the same as
those enjoyed or borne by its members. It may sue or be sued in its own name and
may enter into contracts with third parties independently and the members
themselves can enter into contract with the company.
1. Vijay Chand v. Kalipada, (1914) 1 Cal 57.
2. New Marine Coal Co. v. Union of India, AIR 1962 SC 15.
3. Babha S. Guzdar v. Commissioner of Income tax, AIR 1995 SC 74 (77).
. PROPERTY 517
Advantages of IncQrporation
The law finds it difficult to deal with collective ownership and collective
actions efficiently. Therefore, it always prefers to deal with collective group of
persons as a single legal entity. There. were practical di.fficuJties in making
numerous individuals as parties to a suit against the groiip. This problem has
been mitigated by the incorporatiort of tile collective group as a corporate entity
which can sue or be sued without making each of its member a party to the
suit.
As regards the advantages of incorporation, Salmond observes, "there is
probably nothing which the law can do by the aid of the conception of
incorporation which it cannot do without it" .1 The statement suggests that
incorporation is not the only means to remove the difficulties arising due to
complexities of collective ownership;; but the concept of trusteeship may also
serve the same purpose. Salmond considers incorporation as an expanded form of
trusteeship and says that incorporation is a form of fictitious trusteeship. It
must, however, be accepted that incorportion is advantageous as compared
with trusteeship because in the former there is single legal personality which
has single owner instead of collective ownership. That apart, trustees being
. living human being, on their death, new trustees have to _be appointed which is
not so in case of an incorporated entity because of its perpetual existence. These
give an edge to incorporation over trusteeship in the field of law. The element
of single personality and permanence are absent in trusteeship and
incorporation secures these objects more conveniently and therefore, they are
regarded as almost indispensable in the present context.
benefits flowing from incorporation can hardly be exaggerated. It is because of
incorporation that the owner of the business ceases to trade. in his own person.
The incorporated company carries on the business and the liabilities are the
company's liabilities and therefore the formal · owner is under no liability for
anything the company does, although as principal shareholder, he is liable ·to
take full advantage of profits .which the company makes". ·
Keeton has summarised the advantages of incorporation thus : -
(1) Incorporation greatly simplifies legal procedure, enabling persons to
sue a single incorporated body rather than numerous individuals. The
corporation, on its part, can also sue as a single legal entity.
(2) The death or withdrawal of a member or members does not disturb the
existence of an incorporated body. The members ·may come and go but the
corporation continues perpetually for ever. ?- ~.,
(3) The financial liability of shareholders is limited only to the extent of
their share-holding and not beyond it. ·
1. Fitzgerald, P.J. : Salmond on Jurisprudence, (12th ed.), p. 336.

518 JURISPRUDENCE AND LEGAL THEORY
(4) An incorporated body being a legal entity, can freely dispose of its
property in its own name. Its property is clearly distinguishable from that of
the shareholder's property.
-(5) Incorporation helps the growth of commerce and industries. Even small
investors have an .opportunity to invest their income in the capital of the
corporate body. In this way incorporation e~ables the petty investors to
contribute to the development of national economy.
Creation and Extinction of Corporations _ Generally speaking, a corporation can do only those things which are
. the creation and extinction of corporation does not take place. in natural
course but it is determined by the law. Incorporated entities are created by
charter, statutes, Acts, ancient customs or mutual agreement between the
members and they continue their existence perpetually until they are
extinguished by the process of dissolution. Salmond observed that a corporation
has a perpetual existence, but there may be a period during which a corporation
sole remains suspended due to the death of person holding public office and
· some other person being appointed in his place. Thus during this intervening
period, the corporation sole is not extinct but it merely remains suspended.
The members of a collective group form themselves into corporation for
two obvious reasons, namely, for the unity of purpose and for the permanency of
the institution. It must, however, be noted that every corporate body is not
recognised as a legal entity. The creation of a legal entity requires two
conditions to be fulfilled. Firstly, the corporated body should be a collective
group of persons united for furtherance of a common interest and secondly, it
must be in an organised form.
The House of Lords in its historic judgment in Satoman v. Saloman 1
formulated the principle of independent corporate existence of an incorporated
company holding that with incorporation, the entity of the company becomes
institutionalised. Referring to the legal existence of Saloman and Co. which
was, in fact, managed solely by one man, namely, Saloman, the House of Lords
held that it was a real company complying with all_the legal requirements of
incorporation and therefore, its existence was separate and h1dependent from
its members.
Similar views were expressed by Mr. Justice Kania of the Bombay High
Court (as he then was) in Praga Tools Corporation v. !manual. 2 He observed
that, "an incorporated company is a distinct entity, and although all the
shares may be practically controlled by one person, in law., a company is
distinct entity and it is not permissible or relevant to enquire whether the
directors belonge to the same family or whether it is, as compendiously
described a one man company.3
1. (1987) AC 32 (HL).
2. AIR 1969 SC 1306.
3. See also M/s. Electronics Corporation of India v. Secretary, Revenue Dept. Govt. of Andhra Pradesh,,
AIR!?:;;, 1734.
,.A..
PROPERTY 519
Commenting on the nature of a corporation Maitland observed that
corporation is a fictitious person which has nei~er the cap~city to run nor_ to
marry nor falling ill, it is a group of_ persons which h~s ~t~d as a collective
body for some common object; the will of the corporatio~ is different fr~m that
of its members. Likewise, the decisions taken by corporation cannot be said to be
the decisions of its members. It may, however, be assumed that the corporation
represents the collective will of its members.1
Liability of Corporations ·
incidental to the fulfilment of the purposes for which it has been created under
the law. All its acts must be dir~ted to its legally appointed end. Thus a
company incorporated by special statute is ~ite_d to the powers conferred by
the statute and those which are reasonably incidental thereto. The purpose
and objects of a company registered under the Companies Act, 1956 are con~~d
in its Memorandum of Association and the company cannot go beyond the hmits
so laid down for its activities. Any thing done by the company beyond i!s object
clause is ultra vires. 2
It may be reiterated that a corporation is not a natural person: It neither
has a body nor brain or soul of its own. It has to act through !ts ag~nts,
employees and other personnel. I~ therefore, £~Hows that a corporti~n i:teither
has its own will nor an interest of its own. The interest of a company is~ m fact,
the interest of its shareholders which is represented by the Board of di~ectors.
Despite this reality, the law confers a fictitiou~ legal personality on
corporations which vests rights, duties and property m the~. <:onse~u~i:itly, a
corporation can sue or can be sued and owes both civil and cnmmal habihty for
.__, the acts done by it. 3
Civil Liability
A corporation cannot personally commit a tort. It is an arti~icial
person having no brain and body of its own. It may, howev~r, be held hable
for the wrongful acts committed by its agents or servants. du_nng the c~mr~e of
their employment. This liability is based on the prm~iple of vicarious
liability. The company is therefore, liable for the torts of its _employees an~
agents just as a master is held liable for the wrongful and negligent acts of his
servants.
As to the question whether t~e principle of ~icario~s liability could also
extend even to the actions involving malice as an mgredi:nt, there ha~ been a
shift in trend in recent years. Earlier, in Stevens v. Midland Counties Rly.
Company,4 Baron Alderson took the view that_ a corrorati~n. does_ not _POSSe~s a
mind of its own, hence it cannot be held hable m a civil action mvolvmg
I. Dr. Murray : History of Political Thought From Plato to the Present, p. 388.
2. The doctrine of ultra vi res is an important rule of Company Law•
3. Cornford v, Carlton Bank, (1899) 1 QB 392.
4. (1854) 10 ED 352.
520 JURISPRUDENCE-AND LEGAL THEORY
malice. This view was reiterated again ~n '..Abrath v. North Eastern Railway
Company. 1 In this case, the railway company prosecuted Dr. Abra.th, a surgeon
for issuing a false certificate to a passenger who was alleged to have received
· injuries in a railway accident. The surgeon was, however, acquitted, thereafter,
·the surgeon sued the railway company for malicious prosecution:. The plaintiff
(the Doctor) had to prove lhat prosecution against him was launched with an
improper motive. Lord Bramwell, however, ruled that a corporation being
merely a figjon, it is not possible to attribute any mind to it and therefore, it is
incapable of conceiving any malice.
· Overruling the decision in Abrath's case, Lord Lindley in Citizen's Life ·
Assurance Company v ~ Brown 2 observed that a company can be held liable for
the torts involving malice such as defamation. In this case a superintendent of
the company sent a circular letter to its policy-holders containing certain
allegations against an ex-employee of the .company. The ex-employee sued the
company for defamation. Lord Lindley held the company liable for defamation
on the basis of vicarious liability as the tort was committed i~, the course of
employment of the company. · ·
In case of misrepresentation in the prospectus of the company, the
company and its every director, promoter and every other person who
authorises, issue of such prospectus, incurs civil liability towards those who
subscribe for shares on the faith of untrue statement in the prospectus.3
It is now well settled that a corporation may be sued for malicious
prosecution or deceit or defamation which involves malice as an essential
ingredient.
A corporation is, however not liable if the act of its employee or servant or ·
agent is not authorised by the Article of its Association. The case of Poulton v.
London & S. W. Rly. Company, 4 is a leading decision on the point. In this case, a
Station Master in the employment of the defendant Railway Company arrested
the plaintiff for refusing to pay the freight for a horse that had been carried by
the railway. The railway company had authority under the Act of Parliament
to arrest a person who did not pay the fare, but not to arrest a person for non-
payment of freight for the carriage of goods. The Court held the company not
liable because it had no power itself to arrest for such non-payment, therefore,
it could not delegate such a power to the Station Master (its employee) to do so.
The plaintiff's remedy for the illegal arrest in such a case could be against the
Station Master personally and not the_ railway company as the master of its
employee. The real reason for the decision appears to be that the Station-
Master did not have the 'implied authority' to make such an arrest on behalf of
the railway company and as such the latter could not be held vicariously liable
for the same.
1. (1886) 11 AC 247.
2. (1904) AC 423.
3. Section 35 of the Companies Act, 2013.
' (1867) 2 QB 534; followed in Ormiston v. G. W. Rly., (1917) 1 KB 598.
PROPERTY · . · 521
· Criminal Liability
A body corporate can be held vicariously liable for the wrongs committed ·
by its employee just as the liability of the principal extends to unauthorised
acts of his agent. But a corporation cannot be held criminally liable for the
criminal acts of its employees on the principle of vicarious liability.
Commenting on this aspect of corporate liability, Salmond observes, "To punish
a body corporate, either criminally or by the enforcement of penal redress, is in
reality to punish the beneficiaries on whose behalf its property is held for the
acts of the agents by whom it fulfils its functions" .1 It is for this reason, that
criminal liability of corporation is of exceptional nature. Even assuming that a
corporation is deemed to possess an imaginary will just as it is attributed an
imaginary existence by legal fiction, the only acts thal can emanate from the
so-called will, are those which the Memorandum of Association permits it to
do, i.e., which are intra vires the co~pany. Therefore, a corporation . cannot
commit a crime because a criminal act or illegal act would be necessarily ultra
vires its Memorandum of Association.
This orthodox view has, however, been abandoned now and a corporation
can be held criminally liable for the criminal acts done by its representatives.
It is well settled that a corporation may incur criminal li~bility in cases
involving malice, fraud or other wrongful motives. A company may be held
liable for libel, malicious prosecution or deceit.2 The will of the human being
who control the affairs of the corporation is attributed to the corporation itself.
Thus in R. v. I.C. R. Haulage Ltd.,3 the company was indicted for conspiracy
along with its Managing Director and others and the fraud of the director was
computed to the company.
Maitland holds that a corporation has a real existence and therefore, has
its own will which is different from the will of its members. Relying the realist
theory of corporate personality, he _attributes criminal liability on corporation
for malicious prosecution or libel or fraud. 4 .
The practical difficulty as regards imposition of criminal liability on
corportions arises in respect of punishing them for their guilt. There seem to be
two possibilities in this regard. If the corporation be punished with fine or
forfeiture, it would be easy to carry out the punishment without punishing its
members. But if any corporeal punishment is awarded, then it would be
difficult to separate the members from the corporate entity. Obviously, the
. Court has to exercise its discretion in such cases. It would be pertinent to refer to
some leading decisions to illustrate the point further.
In D.P.P. v. Kant & Sussex Contractors Ltd., 5 the manager of a transport
company submitted false returns to obtain petrol coupons. The Division Court
1. Fitzgerald P.J.: Salmond on furisprudence, (12th ed.), p. 315.
2. Cornford v. Carlton Bank, (1899) 1 QB 392.
3. (1944) 1 KB 551.
4. Edward v. Midland Rly. Co., (1880) 5 QBD 287.
5. (1944) KB 146.
 .5 22 JURISPRUDENCE AND LEGAL 1HEORY
held that the company had committed fr~ud through its manager and
therefore, was liable for that offence. ·
In yet another case, Moore v. Bresler Ltd., 1 the Secretary of the company
was himself the Brandl Manager and Sales Manager of the company. He did
certain acts which were ultra vires the Board of Directors of the company. The
Court, held the company criminally liable being a legal person.
In R. v. I.C.R, Haulage Ltd., 2 a company was held liable for conspiracy to
defraud. Its managil'\g ·directors and some others had conspired to practise fraud
upon another company.
In India also, crbninal liability may be imposed on corporation under the
Companies Act3 ~d ·other statutes. For instance, Section 140 of the Companies
Act provides "if a person committing an offence under this chapter_in a
company, eyery person who, at the time the offence was committed was in
charge of and was responsible to the company for the conduct of business of the
company, as well as :the company shall be deemed to be guilty of the offence
and shall be liable tb be proceeded against and punished accordingly. The
explanation for the P'-lrpose of this section provides that "Company" means a
body corporate and if.ltludes a firm or other association of individuals.
To cite yet another example, Section 68 of the Companies Act, 1956
imposes additional criminal liability of imprisonment upto five years or fine
upto one ·lakh rupees or both, where a person who either knowingly or
recklessly made a false, deceptive or misleading statement or promise or
forecasted or had dishonestly . concealed certain material facts in order to
induce another person to enter into (a) any agreement for acquiring, disposing of,
subscribing for or lll'l.derwriting shares or debentures, or (b) any agreement with
the purpose of securing a profit to any of the parties from the income of
shares or debentur~s or by reference to fluctuations in the value of shares or
debentures.
As regards the criminal liability of corporate bodies and business houses
for evading income tax, the legal fraternity generally thinks that wealthy or
powerful corporations must be heavily penalised. But· it must be pointed out
that a corporation is not a rich person, natural or artificial, it is a network of
relationships among a variety of people, namely, shareholders, workers,
customers, suppliers, executives etc. of whom some are wealthy and others are
not. It may, therefore, be said that an unduly heavy penal tax liability on
corporate income operates as a regressive tax on consumers, which needs to be
avoided.
Summing up, H may be stated that corporation can be held criminally
liable but its liability must inevitably be limited to fine, forfeiture or
burdening the prop~rty in any other way. For heinous_offences committed under
1. (1944) 2 All ER 51.5.
2. (1944) KB 551.
3. Sections 63, 73 (2-..B), 108-F (2), 538, 539, 540, 629 etc.
. '
PROPERTY 523
the orders of the corporation only the members responsible for issuing such
orders can be prosecuted and individually punished. ·
Theories of Corporate Personality
Jurists have expressed conflicting views regarding the _exact . nature. of
corporate personality. These views find expression through _differe~t theones
of corporate personality which they have propounded from ~e to time. Even
though there are several theories which att~mpt to exp~ain the _natu~e of
corporate personality, none of them can be said to be domin~nt. It is ~l~imed
that while each theory contains elements of truth but none by it~elf suffic~ently
interpret, the phenomenon on juristic personality. There are five theories of
corporate personality.
1. Fiction Theory.-This theory is expounded mainly by Savigny,
Salmond, Coke, Blackstone and Holland. According to this t~eory, a
corporation is clothed with a legal personality. The personality o~ a
corporation is different from that of ~ts memhE:rs. Savigny regarde~ c?I'J'?r~tion
as an exclusive creation of law having no existence apart from its ind1v1dual
members who form the corporate group and whose acts by fiction, are attributed
to the corporate entity .1 As a result of this, change in the member~hip does not
affect the existence of corporation or its unity. Savigny further pointed ou~ th~t
there is double fiction in case of a corporation. By one fiction, the corporation is
given a legal entity, by another it is clothed with the ~ill ~f an indivi~ua_l.
Thus fictitious personality of a corporation has also a will of its own which ts
different from that of its members.
Kelson also regards legal personality a fiction. To quote his words, "it is
convenient peg upon which to hang legal rights and duties. Thus a ~roup of
persons or a successive series of persons is a legal person because 1t has an
imaginary personality by the fiction of law".
Salmond also supports the view that a corporation has a fictitious
existence. It is distinct from its members and capable of surviving even after all
the members have ceased to exist. A company incorporated by an Act of
Parliament can only be dissolved by another such Act.
Gray justifies fiction theory on the ground that the ma~n ~bject. of
incorportion is to protect the interests of persons having co~on O~Jectives. L_1ke
fictitious personality, the will of the corporation is also an unagmary creation
of law. 2
The fiction theory thus believes that incorporation is a fictitious
extension of personality resorted to for the purpose of facilitating dealings
with property own·e d by a large body of natur~l _persons. !h~
ficti~:m _t~eory,
however fails to answer satisfactorily the civil and cnmmal hab1hty of
corporati~ns. If it is assumed that the will ~f the corp~ration is attributed to it
by thefictition of law, then it leads one to mfer that 1t must always be lawful
1. Savigny: Systems of Modern Roman Law (Translated by Ratingon), p. 181.
2. Gray: Nature and Sources a/Law, p. 55 .
524 . JURISPRUDENCE AND LEGAL THEORY
as the will conferred by law can never be . ~or unlawful or illegal ends. It
therefore, follows that the corporation would always do intra vires acts and
never indulge into acts which are ultra vires. Also it can never have mens rea
which is an essential ingredient for a criminal act.
According to Wolf, fiction ·theory is more realistic and makes it easier to
disregard juristic personality where it is desirable. The theory is concerned
· with sovereignty of State. It presupposes that Corporation as a legal person
has great importan"£e because it is recognised by state and law. It is often
regarded as offspring of fiction theory as both it asserts that .Corporation
without the State has no legal personality except as is conceded by the State.
The fiction theory has been criticised by Sir Federick Pollock who refutes
the acceptance of the theory in the common law of England. He maintains that
under the English law, neither collective liabilities nor collective power can be
claimed by a body of individuals unless they are duly incorporated under the
existing law. In other words, unincorporated bodies are not treated as legal
persons in English law. So also is the position in Indian law. An ordinary club
can not be treated as legal person in its collective capacity. It can neither sue nor
be sued unless it is duly registered under the relevant law. Thus corporate
personality is essentially a creation of law.
2. Realist Theory.I-The founder of Realist theory was the noted German
jurist Johannes Althusius and its main propounder was Gierke who believed
that every collective group has a real mind, a real will and a real power of
action. A corporation therefore, has a real existence, irrespective of the . fact
whether it is recognised by the State or not. The corporate will of the
corporation finds expression through the acts of its directors, employees or
. agents. The existence of a corporation is real and not based on any fiction. It is a
psychological reality and not a physical reality. He further said that law has
no power to create an entity but merely has a right to recognise or not to
recogni~e an entity. Thus this theory was favoured more by sociologists rather
than legalists. The propounders of this theory claimed that fiction theory has
failed to identify the relationship of law with society in general.
Gray was opposed to fiction theory and strongly denied the existence of
collective will. He calls it a figment. To quote his own words, "to get rid of the
fiction of an attributed will be saying that corporation has a real general will
is to drive out one fiction by another".
Fascists have made use of the realist theory of corporate personality to
support the omnipotence of the State. The theory opposes the contention of the
concession theory that personality is attributed by the State.
Some other continental jurists like Bluntschli, Beseler Miraglia have also
supported the realist theory. In England, it was supported by Pollock, Maitland
and Dr. Jethro Brown. Dicey also contends that the personality of a group is a
1. The Realist Theory is also called the "Organic Theory".
PROPERTY 525
reflection of its consciousness and will. Thus group personality is as real as the
personality ~f. an individual.1
J. C. Gray has criticised the realist theory pointing out that collective
will c=an have no reality, it is nothing but· a: mere fiction. Salmond also holds
that even if it is assumed that the group will is a reality, the reality of the
unitary notional entity which may in law survive the last of its members cannot
be conceded to. 2 He further argues that the realist theory cannot be applied in
case of a corporation sole because it is simply a series of natural persons whose
rights are different from those of natural persons in general and in case of
corporation aggregate, personality is nothing more than a metaphor and a
fiction.
The main-difference between fiction theory and realist theory lies in the
fact that the former denies that corporate personality has any existef\ce beyond
. what the State chooses to ~ve it, the latter holds that a corporation is a
representation of physical realities which the law recognises.
It may be stated that Realist theory is closely connected with
'Institutional theory' which marks a shift of emphasis from an individualist to
a collectivist outlook. 3 According to this theory, an individual is integrated
into the institution and becomes a part of it. The collectivists believed in the
existence of many independent institutions within State which is the supreme
a
institution. The facists gave twist to this theory so as to make the State as
the only institution, which integrates all the other institutions and allows none
to survive as an autonomous body.4
3. Bracket Theory.-The Bracket theory, also called as Symbolist t~eory,
is associated with the well-known German jurist Rudolph K. Ihering. According
to this theory juristic personality is only a symbol to facilitate the working of
the·corporate bodies. Only the members of the corporation (human beings) are
'persons' in real sense and a bracket is put around them to indicate that they are
to be treated as one single unit when they form themselv~s into a corporation.
The supporters of Bracket theory, argue that just as a synomymous word is
put within brackets to give an equivalent meaning, so also collec~ive form of _a
group of different individuals is expressed through a corporation and their
separate identities are given a unified form. Thus incorporation is done merel_y
for the sake of convenience. The American jurist Hohfeld has advocated this
theory in a different form. In his view, corporate personality is the cre~tion of
arbitrary legal rules designed to facilitate proceedings by and agamst an
incorporated body in law court.
This theory is similar to the concept of lifting the corporate veil. The
supporters of this theory believed that juristic personality is only a symbol to
formulate the working of corporate bodies.
1. Miraglia : Comparative Legal Philosophy, p. 371.
2. Fitzgerald P.J.: Salmond on Jurisprudence, (12th ed.), pp. 328-29.
3. Dias R. M. W.: Jurisprudence (5th Ed 1985) Indian Reprint, 1994, p. 269.
4. Ibid.
 · JURISPRUDENCE AND LEGAL THEORY
526
I
Hohfeld has supported this theory on the ground that only human beings
are persons and juristic personality is mere creation of arbitrary rules of
procedure. The 'corporate person' is only a procedural form of a large number of
individuals which is recognised to determine jural relations among them.
According to Hohfeld, group terminology 'corporate concept is only a means of
taking account of mass individual relationships. What he finally meant was
that unity of a corporation is a convenient way of deciding cases by the courts of
law. · activities falling within the purpose need to.the protected by law by conferring
Bracket theory is basically similar to fiction theory in the sense that it
recognises that only huinan beings have interests and rights of a legal person. It
is clearly in line with the theory of lifting the corporate veil.
This theory has been criticised on the ground that it does not indicate as to
when the bracket may be removed and the corporate mask be lifted for taking
note of the members who constitute the corporation.
4. Concession Theory.-The theory is basically linked with the
philosophy of sovereign state. It pre-supposes that corporation as a legal
person has great importance because it is recognised by the State or the law.
According to this theory, juristic personality is a concession granted to
corporations by the State. -lt is entirely at the discretion of the State to
a
recognise or not to recognise juristic person. The theory closely .resembles the
fiction theory as it also believes that there is no juristic personality apart from
the creation of law. It is for this reason that the supporters of the fiction theory
also accept the view point put..;forth by concession theory. Notable among them
are Savigny, Salmond and Dicey. 1 This theory differs from the fiction theory
inasmuch as it emphasises on the discretionary power of the State in the
matter of recognising the corporate personality of the corporation. Some critics
consider this theory dangerous because of its over-emphasis on State discretion
in the matter of recognising corporation which are non-living entities. In their
view, this may lead to dictatorshi? and arbitrary restrictions on corporate
bodies, particularly the political entities.
5. Purpose Theory.-The main exponent of this theory was the noted
German jurist Brinz. In England, this theory was developed by Barker. 2 E.I.
Bekker, Aloys and Demilius also supported this theory. The theory is founded
on the view that corporations are treated as 'persons' for certain specific
purposes. The assumption that only living persons can be the subject-matter of
rights and duties, would have deprived imposition of rights and duties on
corporations which are non-living entities. It therefore, became necessary to
attribute 'personality' to corporation for the purpose of being capable of having
_rights and duties.
The origin of purpose theory is to be traced back to Stiftung of German
Law, i.e., 'foundations' which were treated as juristic persons. A foundation is
analoguous to a trust for specific charitable purpose such as propagation of
l. Dicey A. V. : Law of the Constitution, (8th ed.) p. 87.
2. Barker (Gierk's Translation) Natural Law & Theory of Society, p. xxiii.
PROPERTY 527
education, grant of scholarships etc. These foundations were attributed juristic
personality in Germany in order to facilitate legal transactions. The Stiftung
being a kind of charitable fund; was not a real person therefore, it was
personified for the specific purpose for which it was created.
Duguit interpreted purpose theory in a different way. In his opinion, the
endeavour of law in its widest sense is to achieve social solidarity. If a given
group is pursuing a purpose which conforms with social solidarity, then all its
it legal personality.
Appraisal
Expressing his views about the theories of legal personality, Dr. Sethna
observed that the existence of corporation is neither wholly fictious nor wholly
real, instead, it is partly fictitious and partly real. However, this assertion of
Dr. Sethna hardly serves any useful purpose .in determining the rights and
duties of corporate entities. No doubt, a corporation is formed out of combination
of a number or group of natural persons who are real persons, but once it is
incorporated under the statutory law, it assumes legal or artificial personality
by fiction for the sake of determination of its rights, liabilities, duties etc. vis-
a-vis persons with whom it deals with.1
Dr. Friedmann analysed the different theories of juristic personality and
concluded that almost all of them had a political significance and their role in
attending to the legal problems has rather been secondary. The fiction theory
of juristic personality is founded on psychology of man which is inevitable part
of human nature. In its purest form, this theory is completely free from any
political influences but the concession theory which is derived from fiction
theory, necessarily has a political inkling which aims at strengthening the
power of the State, thus enabling it to keep the collective groups fully under
control. The concession theory was extensively used to take over the property of
Church during the French Revolution. Likewise, the realist theory is also
predominantly political rather than legal in its objectives. It is based on
organic theory of the State which was supported by fascists to uphold
supremacy of the State. Friedmann finally concluded:
"While each of these theories contains elements of truth, none can by
itself adequately interpret the phenomenon of juristic personality. The
reason is that corporate personality is a technical legal device applied for
a very diverse aggregation, institutions and t_ransactions which have no
common political or social denominator whereas each of the many theories
has been conceived for a particular type of juristic personality. None of
them saw the extent to which the device of incorporation would be used in
modern business, or, we may add, to cloak the activities of some branch of
governmeht." 2
l. The Legal Personality of a Corprate body is quasi-fictitious and quasi-real-Dr. Sethna.
2. Wolfgang Friedmann : Legal theory (5th Ed. 1967) Columbia University Press p. 513.

528 JURISPRUDENCE AND LEGAL TIIEORY
I
The jurists like Gierke and Jellinek tried•to r~concile the soverei?°". power
of the State with the rights of independent collective groups or associations by
self-imposed limitations on the State, but their efforts failed to achieve the
desired results.
As observed by Dias and Hughes, there is no single theory which tak~s ..,'.~"> __.
into account all the aspects of the problem of juri~tic personality. The theori~.. · · ~.
that have been propounded are philosophical, political or a1?-alytical. B_ut it,:
must be borne in mind that functional basis of the law cannot be ignored. It is f(?r
this reason that English law has not committed itself to any particular theory.
There is, undoubtedly, a great deal of theoretical sense in each theory, but it is
not easy to say how much of it affects a particular decision.
The Supreme Court of India, in its landmark judgment in M.C. Mehta v.
Union of India, 1 laid down the parameters w~th regard to c~rp?rate liabili~ of
hazardous enterprises and brought the private sector withm the ambit of
Article 12 of the Constitution. Emphasising the need to evolve new strategy for
corporate liability of public and private enterprises for disastrous gas leakages
or environmental degradation cau~ing health hazards and huge damage to
property to the people· settled in the nearby vicinity, Justice P.N. Bhagwati in
this case observed that the 19th Century English rule evolved in Rylands v.
Fletcher2 regarding strict liability was no longer suited · to the evolving
corporate liability consistent with the Indian Constitutional norms a~d needs of
the community. There was urgent need for establishment of Environmental
Courts (i.e., Green Tribunals) with profossional experts from le~o-environm~nt
cum ecology sector and stringent action was warranted agamst the erring
corporate bodies and industries for violating the environmental laws. _ contract. The question of trade union's personality once again came up for
Unincorporated Associations
Before concluding the discussion on incorporation, it would be desirable to
contrast it with unincorporated associations which, according to Salmond, are
. nothing but the sum total of their members. These unincorporated bodies _may
vary in size and importance from smal~ so_cial clu~s to a~l-f'~werful pr?fess1onal
bodies holding considerable power m m_dustnal ach~1hes .. The rights and
duties of a club are nothing more than the nghts and du hes of its members who
are contractually related inter se, and its property is joint-property of the
members, though in fact it is often held by trustees on behalf of the members to
simplify transactions. 3
An unincorporated body has no legal personality ':~atsoe~er. Therefor~,
it can neither sue nor be sued in its own name. The hab1hty of its members 1s
unlimited. For instance, a partnership firm is not a legal person, therefore, none
of its partners can contract with the partnership firm because a man cannot
make a contract with himself.
1. AIR 1987 SC 1086.
2. (1868) LR (HL) 330.
3. Fitzgerald, P.J.: Salmond on Jurisprudence, (12th ed.), p. 326.
PROPERTY 529
. The .~upreµieCourt ~ -__ Babha F. Guzda:r v. Commissioner of Income-tax,
~_ombay 1 held that unincorporated a.ssodations like partnership has no
existence apart from its members. It is no mpre than an aggregate of partners and
·~as no independent juristic personality from its members. The Court observed
that it is no,t correct to say that position of shareholder in a company is
analoguous to that of partners inter se. Partnership is merely an association of
persons carrying on business in the name of partners but a company is a separate
juristic person distinct from its shareholders. A partnership firm is not a legal
person and therefore, it cannot sue or be sued in its name.
The decision of House of Lords in Taffvale Railway Company v .
Amalgamated Society of Railway Servants, 2 however, seems to have blurred
the distinction between incorporated and unincorporated bodies, As stated
earlier, only the incorporated associations can sue and be sued in their own
name and not the unincorporated ones. In the instant case, the House of Lords
ruled that a trade union, though not incorporated and registered . under the
Trade Unions Act could be sued in torts for the wrongful acts of its officials. The
union concerned had to pay £ 2300 by way of damages in addition to the legal
expenses incurred by the plaintiff in litigation. The decision created a great
furore among the labouring classes and they protested against it. Consequently,
the Trades Dispute Act, 1906 was passed which restored immunity of trade
unions from liability for the torts committed by their servants .. The Act was,
however, amended in 1927 to curtail this immunity in .the event of strikes and
lock"".outs in industries.
Now it is a well settled law that the trade unions by virtue of the Trades
Dispute Act, 1906, cannot be sued in torts. They can, however, be sued in
decision in the case of Bonsor v. Musician's Union. 3 In this case, a member sued
his Union for breach of contract on account of wrongful expulsion. The
personality of the Union had to be considered by the Court for the reason that if
a union is not a separate legal entity from its members, an action for breach of
contract would fail as a member cannot bring an action against himself. The
House of Lords held that a member could sue for breach of contract implying
that it has some legal existence independent of its members.
Conclusion
The foregoing analysis makes it abundantly clear that incorporation has
great -'importance because it attributes legal personality to non-living entities
such as companies, institutions and group of individuals which helps in
determining their rights and d~ties. Clothed with legal personality, these non-
living entities · can own, use ~.h d dispose of property in their own names.
Unincorporated institutions are denied this advantage because their existen<.;e
is not different from the members.
1. AIR 1955 SC 74 (77).
2. (1901) AC 426.
3. (1956) AC 104.
530 JURISPRUDENCE AND LEGAL THEORY
• I
Kelson, through his analyticai approach to legal personality, has .
concluded that there is no divergence between natural persons and legal persons
for the purposes of law; In law, 'personality' implies conferment o! rights and.
duties, Therefore, for the convenient attribution of rights and duties, the
conception of juristic personality should be used in its procedural form.
The most modem and popular form of corporate governance has evolved
through the law of artificial personality for· the purposes of trade, and
industries on a major scale. They are a natural accompaniment of the extension
of commerce at the national as well as the international level. A corporate
enterprise requires coherence for its undertakings, which it secures through
legal recognition as a corporate body. Conferment of legal recognition to
artificial corporate bodies has now been recognised under most legal systems of
the world. Jt is formed, as a rule, only with the consent of the sovereigrt power
under a statutory law and is commonly known as corporation or an incorporated
company.
The doctrine of corporate personality shall generally extend to foreign
corporation and it will be recognised as person in law of the country where it
was created and has all the attributes similar to those which are .assigned to ·
corporations by the law of the country in whose1 Court it can sue in the capacity
of a plaintiff or be sued as defendant.
000
1. Continental Tyre & Rubber Company's case (1916) 2 Act 307 where a company was duly
registered in England with all its shareholders and directors being Germans excepting
one who was an Englishman. Consequent to World War I they became alien enemies
and therefore the continuance of existence of the company was challenged. The Court
of Appeal held that rights of the company remained unaffected by the war, but the
House of Lords reversed this decision and held that the company has ceased to exist.
23 .·
LIABILITY
In modem civil societies, the rights and duties of individuals are regulated
by the law of t~e land. A b~eac~ of thes~ rights and duties is called a wrong.
One who conumts a _w~ong ts said to be bable for it. Thus liability may be for a
wrongful act or om1ss1on. Salmond defines liability as Vinculum Juris, i.e., a
bond o{ necessity that exists betw~en the wrongdoer and the remedy of the
wrong. The remedy. of the wrong 1s enforced by the supreme will of the State
through its organised force. A man's liability consists in those things which he
~us!· ~o ~r s_uffer because he_ ha~ failed to do what he ought to have done.
L1ab1lity 1s different fr?m obligations. An obligation is a proprietary right in
personam or a duty which corresponds to such a right whereas in liability the
wrongdoer is under a duty to redress the person wronged.
According to Au~tin, liab~lity consists in those things which a wrongdoer
must do or suffer. It 1s the ultimatum of law and has its source in the supreme
will of the State. Lia?il~ty arises. from a breach of duty which may be in the
form of_ an .~ct or om1s~1on. Austm prefers to call liability as 'imputability'. To
quote. hrm, those certain. forbearances, commissions or acts, together with such
of their consequences, as 1t was the purpose of the duties to avert, are imputable
to t~e persons who have forborne, omitted or acted. Or the plight or
predicament of the persons who have forborne, omitted or acted is styled as
imputability." '
. It is thus evident that liability arises from a wrong or the breach of a duty
m law.
Kinds of Liability
· Li~bil~ty may either be civil or criminal; it may also be remedial or penal;
and v1canous and absolute. Absolute liability is also called strict liability.
Distinction between Civil and Criminal Liability
Civil liabili~y c~~sists in e~forcement of the right of the plaintiff against
t~e _d_efendant m civil proceed_mgs whereas in the case of penal or criminal
hab1bty, the purpose of law 1s to punish the offender or wrongdoer. The
dist~nct~on between civil and criminal liability has been elaborately discussed
earlier m _the chapter2 on Administration of Justice. Civil liability may either
be .remedial or penal but criminal liability is . necessarily penal. The liability
of the debtor to repay the debt money is remedial while that of a publisher of
1. Fitzgerald P.J. : Salmond on Jurisprudence, {12th ed.) p. 349.
2. Supra Chapter XII.
( 531)
532 JURISPRUDENCE AND LEGAL THEORY
~ libel to pay damages to the person injure~ is civil but if criminal proceedings
are initiated against him under Sections 499/500,JPC, tl).en it shall be penal as·
he may be punished with the sentence of imprisonm~nt. · it should enforce the fulfilment of S'1Ch duty. The law imposes remedial
Besides defamation, the liability may be civil or penal in case of assault;
malicious prosecution, defamation nuisance etc. In case of civil proceedings, th~
remedy is in the form of damages whereas redress for criminal liability is in
the form of punishment.
Liability may be civil or criminal according to the nature of wrong·
·committed by a person. According to Salmond, "the distinction between
criminal and civil wrong is based not on any difference in the nature of the right
infringed, but on a differe~ce in the nature of remedy applied."
The main points of distinction between civil and criminalliability are as
follows:-
(1) Civil liability arises when a wrong is against a private individual but
criminal liability arises in case of an offence which is a wrong against the
society. · the creditor to receive the debt amount even if it is time-barred.
(2) Civil liability entails damages but criminal liability results into
punishment.
(3) The procedure for determining civil and criminal liability is different.
The civil liability in case of a civil wrong is determined by civil proceedings in
a Civil Court but criminal liability is imposed by criminal proceedings
instituted by the State against the offender.
(4) In .case of civil liability, it is the act and not the intention which is
taken into consideration but in case of criminal liability it is the mens rea
which is the determing factor.
Penal and Remedial Liability
Liability may also be penal or remedial, the former involving the idea of
punishment while the latter consisting in the specific enforcement of the
plaintiff's right without any element of punishment in it. For example,
liability to pay a fine is penal while liability to repay a debt is remedial.
Criminal liability is generally penal while civil liability is mostly
remedial, though in some cases it may carry penal consequences.
Theory of Remedial Liability
The basis of remedial liability is to be found in the maxim ubi jus ibi
remedium which means where there is a right there must be a remedy. When
law creates a duty, it ensures its fulfilment also. Where there is a breach of
duty, there must be some remedy prescribed by law and enforced oy law.
Thus the purpose of remedial liability is to ensure the specific enforcement
of plaintiff's right. It aims at protecting the right of the plaintiff rather than
punishing the wrongdoer.
LIABILITY ·533
" · According to the theory.~£ remedial liability,. whenever law creates a duty
liability on one who fails to perform such duty. There are, however, three
·exceptions to this rule. when law might ·accept the· right of the plaintiff and yet
,it may not enforce it. These exceptions are : - · .
1. Duties of imperfect obligation.-In such case law recognises the right but
does not enforce it. For example, the liability of a debtor in case of a time-
barred debt is recognised by law .but it is not. enforceable by the courts.
Therefore, the claim of the -creditor to recover the debt lapses on expiry of the
prescribed period of limitation.
However, even though the time barred deb_t is not enforceable by the Court,
it does not mean that the court denies the fact that the debtor owes the debt to
\ the creditor. In other words, the payment of time-barred debt by the debtor to
'the creditor will be perfectly valid in law. Thus the effect of the debt being
time barred only renders it unenforceable but does not extinguish the right of
2. Duties which by nature are incapable of specific performance.-In
certain .cases1 the nature of the duty or the corresponding right is such that it
cannot be specifically enforced. For example·, every one has a right to
reputation and therefore, there is a corresponding duty imposed on others not to
violate such right. But if a libel is committed, the specific enforcement of
corresponding duty of the defendant (i.e., person who has committed libel) is
- not possible. In other words, once a mischief has been donel it canrtot be undone.
In such cases, damages are perhaps the only adequate remedy.
However, this principle does not apply to cases of continuing wrongs, e.g.,
nuisance. In such cases, the Court may order the wrongdoer to desist from
continuing with the nuisance. .
3. Where specific performance is inexpedient or inadvisable.-There are
certain categories of cases in which though specific performance is possible,
law may not resort to it where other remedies would satisfy the requirements of
law. For example, law does not enforce· the specific performance of a promise of
marriage or painting of a picture but normally awards damages in such cases.
Penal Liability
As stated earlier, the main purpose of penal liability is either directly or.
indirectly, to punish a wrongdoer. The basic principle underlying penal
liability is contained in the maxim actus non facit reum, nisi mens dt rea which
means that act alone does not amount to crime, unless it is accompanied by
1
guilty mind'. Therefore, two elements, i.e., act and guilty mind are essential
requirements to constitute a crime. No person can be punished merely because
his act resulted into some crime unless it was accompanied by mens rea or guilty
mind. Conversely, mere presence of mens rea shall not constitute a crime or an
offence unless it is accompanied by some act. Thus 'act' is the physical element
of the crime and mens rea is its mental element.
534 JURISPRUDENCE AND LEGAL THEORY
I
Generally, a man is held criminally liable only for those wrongful acts
which he does either wilfully or negligently. There are, however, some
exceptional cases when law imposes strict liability as in case of offences under
the licensing Acts or offences against public health. In such ·cases, the act itself
becomes punishable even without the presence of guilty mind or negligence.
That apart, the criminal law exempts certain categories of cases from penal
liability. These ~re commonly known as defences or general exceptions. They
include mistake of fact, 1 accident, 2 infancy, 3 minority, 4 necessity,5 self-
defence, 6 involuntary intoxication7 etc. If the offender succeeds in establishing
any of these defences, he is not punished though his offence may satisfy the
two conditions of actus and mens rea.
According to Austin, intention and negligence are the alternative forms in
which mens rea can exhibit itself. It is a condition precedent for the existence of
guilt. In other words, a person is liable to be punish~d if he does a wrongful act
intentionally or negligently.
Act
~ act is not capable of being defined in exact terms. It denotes only such
physical facts which follow immediately upon the determination of will to
effect them. Salmond defines act as "any event which is subject to the control of
hu~an will". From legal point of view, an act does not necessarily mean a
bodily movement or a muscular contraction alone, but it must be accompanied by
t~e consequences to the attainment of which the original act is directed or
aimed at. For example, a man will not be held liable for gales, thunderstorms
and other natural ·c alamities.8 which are beyond human control. Nor shall a
man be liabl~ for his thoughts and intentions alone unless they are actually ·
transformed mto ~n act. It may be pointed · out that a bodily movement or
mu~cul_ar contraction alone shall not be an act unless it is caused by volition
which 1~ a movement caused by human will. The reason being that muscular
contraction may be due to some disease or pain and may not be intentional at
all.
Au~tin . suggests that an act is a bodily movement caused by the
determmahon of will which produces an effect and result in certain
consequences. He considers antecedent wishes are human volitions and the
bodily movements are acts. . examples of involuntary acts. Invol~tary acts incur no liability.
it i~ tr_ue that both Salmond and Austin agree that an act follows a
determmahon of the human will but Salmond does not limit the term to the
muscular movement alone. In his view, bodily movement is only one constituent
1. Section 76, IPC.
2. Section 80.
3. Section 82.
4. Section 83
5. Section 81.
6. Section 96.
7. Section 85.
8. In legal terms they are called 'Act of God' or vis major.
LIABILITY 535
of an act, the other two being the circumstances accompanying the bodily
movement . and the consequences following it. Thus on act consists of three
distinct elements, namely, (1) its origin in some bodily or mental activity;
(2) its circumstances; and (3) its consequences. For example, the act of shooting
involves all these three elements; i.e., there is physical act, secondly the
revolver being loaded and person shot being within its range constitute the
.circumstances of the act, and thirdly, consequence of discharging ·the bullet
causing injury or death of a person completes the act of shooting.
It is significant to note that for the purposes of penal liability, the 'acf
also includes 'omission' within it. An omission consists in not performing an act
which is expected of a man because he normally does it or because he ought to
do it. Thus omissions incur liability where there is a duty to act.
Act and Event Distinguished
The distinction between act and event also deserves a mention. An act must
be purposeful but an event is purposeless. Ihring illustrates the ·distinction
between an act and an event by an example. 'A' jumped down from a tower
because he wanted to kill himself. Here jumping constitutes an act. It is
composed of muscular movement which is necessary for jumping. The jumping is
done witl:t a purpose of killing himself. But A's losing life by an accidental fall
from the tower is an event. The falling, therefore, is an event and not an act.
This is so because it does not consist of any bodily movement following upon
volition. ·
Kinds of Act
The various kinds of acts are_: -
1. Voluntary and Involuntary Acts.-For the purposes of law, the
distinction between voluntary and involuntary acts is important. A voluntary
act consists in a willed muscular contraction which incurs liability by virtue of
circumstances in which it is committed or the consequences which flow from it.
In short, if the act is willed, i.e., deliberate, it is a voluntary act. Involuntary
act, on the other hand, is not willed, that is, absence of will makes the act
involuntary. Activities beyond normal human control such as beating of one's
heart, sneezes and twitches, acts done in sleep or in a fit of automation are the
2. Intentional and Unintentional Act.-When an act is desired and foreseen
by the doer, it is called an intentional act but when it was not willed towards
· the actual result and cannot be said to be its consequence, it is called
unintentional. For instance, A shoots at B with the intention that it should
cause B's death, the act of A is intentional and he shall be punished for the
offence of hQmicide under Section 302, IPC. But if A fires at a bird on a tree and
the bullet from his gun glanced off the bQugh of a tree and hit B, who carried
-the cartridges and injured him. A would not be liable because the act is
unintentional. 1 It is rather an accidental act.
1: Stanley v. Powell, (1891) 1 QB 86.
 .,
536 JURISPRUDENCE·AND LEGAL THEORY
i .
3. Internal and External Acts.-Inten\al acts are the ·acts · of '.mind ·while ·
external acts are the acts of body. Thus to thinkis an int~rnal act, to speakUis .
~n external act. Every exte~a.l act is preceded by an "internal act, but every
internal act need not necessarily be followed by an external act.
The internal or external acts may either be positiveor negativei According
to Dr. Sethna, "mental passivity signifies an internal n~gative -act ~w hile
mental ac~ivity shows an internal positive act. A man who, S<;?~ing a drowniiJ.g
person, thmks whether to rush £or help or not, he is said to have committed an
internal positive act as soon as he arrives at the decision to nish forwards to
help the drowning person. If h~ actµaJ.ly rµshes to help .. his phy~icaL1icti~ \ · .. . :,
called an external positive act, but jf he sits quiet and ·decides not tp rngye fo{
help, this act of sitting quiet is an external negative ac:t."1 .;W her~',:tman
deliberately abstains from doing an act, his forbearance is an outcome of his
'l ,
desire and therefore, it is an internal negative act. Where a man forg(;!tS to do
something which he is supposed to do, his act of forgetting is unintentional
negative act.2
Wrongful Acts
Every wrong is an act which is mischievous in the eyes of law, that is, an
act to which _the law attributes harmful consequences. These consequences may
be of tv:o kmds, namely, (1) actual, or (2) anticipated. Thus there are acts
which actually result in harmful consequences while there are others which
m~y ~ot lead to harmful consequences but which are nevertheless regarded as
m1sch1evous under the law. In other words, wrongful acts from the point of view
of their consequences, can be classified under the following two categories : -
1. Those acts which are actionable without the proof of actual
damages, e.g., trespass, libel etc., which are actjonable per se.
2. Those acts which are not actionable without the proof of actual
damages e.g. malicious prosecution, deceit, breach of contract etc. The
loss, if any, incurred in these cases may, however, be relevant to
decide the quantum of damages.
Criminal liability usually arises on proving that the act was dangerous or
mischievous even though it did not cause any harm. This is the reason why an
unsuccessful attempt is also a ground for criminal liability like a completed
offence. Thus dangerous and rash driving or riding is an offence3 punishable
under the law though no harm is caused.
As to the civil liability, no corresponding general principle like that of
penal liability, can be laid down. In some civil cases proof of actual damages is
insisted upon while in others there is no such necessity. As stated earlier, in
ca~e o_f Criminal liability, the persons are judged by their acts and by .their
m1sch1evous tendencies but so far civil liability is concerned they are often
I. Dr. Sethna : Jurisprudence, p. 417.
2. Ibid.
3. Section 279 IPC.
LIABILITY 537
judge,d by the actual event: The differece betw~e~ the two, as pointed out by
Salmond ~an be illustrated thus : - · . .· ·
Crilllinal. law says, "you should not do this, if yoq do this, you will be
punished". Civil law on .t he other hand, says, "you may do.t1:'tis, put if any evil
consequences · chance to follow,you will be held liable:''1 The ess-.?nce of civil
· liability is contained in two latin maxims, namely, (1) I)amnum sine injuria,
and (2) Injuria sin~ damno.
Damnmri Sine Injuria
All wrongs are mischievous in the .eyes of law but the converse is not true.
There may be cases in which damage is caused knowingly and wilfully but the
law will not hold the wrongdoer accountable for it. the law ignores the harm
of this nature because no legal injury is caused. Such cases are coverea under the
maxim damnum sine injuria. The word 'injury' signifies 'an act contrary to law'
or violation of a legal right.
According to Salmond, the cases covered under the maxim damnum sine
injuria can be grouped in two categories as under :~
(1) Cases in which there is an injury to an individual but the society as a
whole is benefited therefore, such acts are not actionable. For example,
competition in trade or business might result into harm to some traders but the
society in general is benefited by it, therefore, the harm caused thereby is not
'injury' and hence it does not incur any civil liability.-
An illustrative case on this point is Moghul Steamship Co. v. Macgregor
Gow & Co. 2
In this case, the defendant steamship companies wished to monopolise the
China tea carrying trade. They therefore, combined together t~ offer reduced
freight in order to induce shippers to employ them. In consequence, the
plaintiff, i.e., 'The Moghul Steamship Co. who chose not to join the
combination, were driven out of trade. Therefore, the company (plaintiff)
brought an action against the defendant's combination for conspiracy. The
House of Lords held that the plaintiffs had no case there being justification for
defendants to combine for the sake of protection of their trade, and regulating
the varying freights in order to bring in uniformity. Therefore, though the
defendant's act caused damages to the plaintiff, but it did not amount to
violation of plaintiff's legal right.
Again, a land owner may so excavate his land as to withdraw support
needed for adjoining building or he may drain away water which supplies his
neighbours reservoir.3
These acts may be harmful to individuals nevertheless they are justified in
law for they are in public interest.
1. Salmond on Jurisprudence, (12th ed.) p. 357.
2. (1889) 23 QBD 612.
3. Bradford Corporation v. Pickles, (1895) AC 587, See also Allen v. Flood, (1898) AC 1.
 538 JURISPRUDENCE AND LEGAL THEORY
(2) The second category of cases falling ~nder the maxim damnum sine
injuria includes all those cases in which the harm caused is so insignificant or
trivial1 in nature or so difficult to prove that any attempt to prevent them
shall "make the remedy worse than the disease."2 _ hold, the plank struck a spark ·w hich ignited petrol vapour whose presence in
lnjuria sine damno
The maxim ~s just the ~onverse of the earlier ~axim damnum sine injuria . .
There are certam acts wluch though not harmful, are actionable. In other
wor~s, ;-n_
injury_ withou_t damages incu~s civil lia?ility. The case of Ashby v.
White, 1s an Illustration on the pomt. In this case, the plaintiff was
wrong_fully ~reve~ted from exercising his right to vote by the defendant ··_
returnmg officers m a Parliamentary election. The candidate for whom -the ·
plaintiff wanted to cast his -vote came out successful in the election still -the
plaintif~ cou~d recover damages against the defendants for m;liciously
preventing hrm from exercising his statutory right of voting in the electi6.n~ - ·
~ord Hott,_ C9!- observed that there was the infringement of a legal right vested
m the plamhff hence the defendants were liable. Since no actual damages .
~ere caused, the Court awarded £ 1 by way of recognition of plaintiff's legal -
right.
Causation
lil. law, a man is held liable either for doing acts which are mischievous or
for causing actual injury to the plaintiff. Causation., therfore, 'is an important
c_on~~pt for determining liability in law. In fact, before deciding the question of
hab1hty the question of causation should be decided first. Thus if A is to be
held re~ponsible for burning B's house, he must first be shown to have caused it.
Causat~on_ therefor~, _is an important factor to determine liability whether it is
of a cnmmal or c1v~l nature. _The causation broadly involves two types of
??ccuren~es, namely, (1) abnormal factors; and (ii) human acts. Thus in the above
~llu~t_rahon where. a house ~as ?een burnt down, presence of inflammablt:? gas,
1?111~10~, an elednc. _short-cir~mt etc. may be abnormal circumstances causing
fire or 1t maf hay~J;>ee.n deliberately caused by some person. Once either of
these factor 1s found . present, it is easy to know the causation and attribute ---
responsibility. · _· ·, -· •. · ·
An act_may have been caused due to a chain of causation involving several
f~ctors .. It 1s the ·~stablished principle of law that a man is not held liable for
~Is act If t~e cham _:?f causation is broken or interfered with. This is contained
~ the ~axun novus ~f.~~ interveniens. Salmond explains the maxim through an
illustration. He ~ys, 1f A stabs B and B is taken to hospital where, despite
the fact ~hat he is_ shown to be allergic to terramycin, is injected with a large
dose of it,, then his treatment and not the stab wound would be treated as a
cause 0 ~ B s death because the treatment which was abnormal, broke the causal
connection between the wound by the accused and the victim's death."4 ·
1. Law~ no notice of trivials (de minimus non curat lex).
2. Dr. Winfield : Text Book of lAw of Torts, (7th ed.) p. 13.
3. (1703) 1 ER 417.
4. R. V:· iordan, (1956) 40 Cr. App. R. 152.
LIABILITY 539
_ The leading case on causation in relation to civil liability is In Re Polemis,1
wherein the defendant's servant carelessly dropped a plank into the ship's
the hold .was unsuspected. The defendants were, however, held liable for
damages caused to the ship. But this decision has been overruled by the Privy
.- Council in Wagon Mound2 case .a nd now foreseability of consequences is the test
· for determining causation and _liability.
In certam cases, the law will presume that a man has intended the natural
and probable consequences of his act. ihus in Scott v. Shepherd 3 the defendant
Sllepherd michievously threw a lighted cigarette squib into the market-place.
It fell where Yates sold ginger-bread. One Willis, to prevent injury to himself
and Yates', picked it up and threw it across when it fell in the shop of one
Royal who took it and threw it across_when it struck the plaintiff's eye and
injured it. The Court held that the injury to the plaintiff was directly and
immediately caused by the defendant, as Willis and Royal, the intermediate
agents acted involuntarily and for self-protection. The injury was held to be not
too remote. It is true-that the defendant did not intend to injure the plaintiff
and much less to destroy his eye, nevertheless, he was held liable for one must
answer for the consequences which commonsense would attribute to his wrong
doing.
Mens rea (Guilty mind) _ _
It may be reiterated that a man is held criminally liable not for his act
alone but if it is also accompanied with mens rea or guilty mind with which he
does it. Thus mens rea refers to the mental element necessary for the particular
crime and this mental element may either be intention to do the act or
recklessness (or negligence) as to the consequences of that act. Generally, the
knolwedge of the consequences is considered as a part of mens rea because
mental condition of a man can be judged by his conduct and it is rather difficult
to peep into his mind and ascertain whether he did the act intentionally or
recklessly with the knowedge of the consequence.
A person's guilty mind (mens rea ) may assume two forms, i.e., wrongful
intention or culpable negligence. A person shall be punished if he intentionally
and wilfully does an act which is prohibited by the criminal law of the land.
He shall also be criminally liable if he does a forbidden act negligently or
carelessly without bothering about the consequences flowing therefrom. There
are, however, some exceptional cases when a person is held liable irrespective
of his wrongful intention or culpable negligence. Such cases are covered under
what is known as the 'strict liability' cases. Thus considerd from the point of
view of mens rea, wrongs incurring penal liability are of three kinds : -
1. International or wilful wrongs;
2. Wrongs of negligence;
3. Wrongs of strict liability which are independent of mens rea.
1. (1921) 3 KB 560.
2. (1%1) AC 388.
3. (1773) 2 W Blackstone 892. This case is nick-named as the 'Squib ca5E:'.
 540 JURISPRUDENCE AND LEGAL THEORY
, . !he doc~il\~ of mens r~a has b~n wen · ~~plafued·· in the famous English
-ea~e ?f R. v. Tols(?n., 1 In th1s :case, a woman ~ose husband had deserted her
ma"'_l~d another . tnan b~for~ the expiry of. seven years which was against
En?hsh la~; relaQllg to marriages. The.-Jury; llowever, foµnd the woman 'not
1
' ~dty, Qf ~1ga:my as she bo,ia fide believ~d that her h~band had died. The
~ourt_~cqµ,itted h~r of the charge oJ big-J1ay as
case. · · ·
~s rea was not proved fn this
· ··
_. Thus a mere act does not constitute a:n offence unless i~ is couple4 with mens
rea. Jn other words, ":-ens rea ' is an essential ingredient for a crime. Sir ·J.
S!ephens, howe~er, th~~s that the doctrine of mens rea i~ misleading. In his-
v1~~, the doctrine originated when .offences were not defined ·u nder the
c?1:~unal law_- A crime consisted not merely in doing a particular act such as
killing, stea!~~g etc. but doing it with a particular knowledge or purpose. This
mental condition cam~ to be call~d as mens rea_. But m>w at the present stage
when every offence 1s well defined, the doctrine of mens rea has become
unnecessary if not obsolete.
Pe:1al liability for an offer.ce depends mainly on the nature of the act
com~mtted and th~ guilty mind of the offender in committing that act. The act
leading to penal liability- · state of mind or bodily feeling is in issue, are relevant."
(1) It ~ay be either positive or negative. A wro~gdoer either does . that
which he .ought not to do, or omits to do that which he ought to have
done. · constituted by the knowledge or intention or otherwi~e." Generally, the term
(2) It may either be internal or external. The former emanate from mind
~hile the la~er are act performed by body. Every external act usually
involves an mtemal act, but the converse is not always true.
(3) It may be intenti~nal or unintentional. An
intentional act is usually
for~seen and desired by the doer but an unintentional act is neither
desired nor foreseen by its doer.
Broadly speaking, every act involves three aspects, namely, :
(1) its origin in some mental orbodily activity,
(2) its circumstances, and
(3) its consequences.
Thus in an ac~ of causing death or injury by shot of a gun, the physical and
~ental factor to fire_ the s_ho~ is its origi~, the gun being loaded and its target
(i.e.: person shot) bemg w1thm the shooting range constitute the circumstances
while the death or injury caused is the consequence of the act. ' liability and the presence or absence of mens rea is irrelevant in such cases. 2
Ther~ may be situations when the nature of the same act may assume
agg~avating form wh~n committed in different circumstances. For example,
Sect~o_n 436, l?C cons~ders house-breaking by night as an aggravated offence
entatl~g greater punishment than the house-breaking committed during the
day-hme.
I. (1889) 15 Cox 629.
· LIABILITY 541
Application ofthe Doctrine o/mens rea in India. ,_ -~,
Whatever may be tne position of mens rea in English criminal law, but this
. doctrine issWholly out of place wi!h'~eference}o the.Indian Pe~al_Cod~. A~~vo.
Mayne, the leamE?d author of Cnmmal law :m- India, has pointed opt, "every
offence is defined and the definition states not only what the accused must
have done, but the state of mind with ,regard to the act when hewas_doing it".
For example, theft mµst ·involve dishonesty, cheating must be · committed
fraudulently, murder must be-: committed either intentic>.naly or knowingly.
Thus, there is no need for the general doctrine of mens rea in IWdia since each
definition of the ~ffence is self-sufficient. All tl:iat the prosecution has. to dois
to prove the~various ingredients of a particular o{fence which the accused'is
alleged to have committed. ., ,: •': ·
,;, 1;·_ • er:
It must be stated that Section 14 ofthe Indian Evidence A~, 1872 lists some
elements of the mental state which are relevapt Jo facts showing .existence of
state of mind or of body or_,bodily feeling. It says, "facts~howing the existence
of any state ofmind such as intention, kn9wledge,. good faith, negligence,
rashness, ill-will or good-will towards .any particular person or showing the
existence of any bodily feeling, are relevant when the existence of any such
The Supreme Court in State of Gujarat v. Acharya Devendra Prasadji
Pande 1 has defined mens rea as "some blameworthy mental condition, whether
'guilty mind' is associated with intention. Therefore, the traditional view of
equating mens rea with guilty mind seems to be erroneous and misleading. It
would be more correct to define mens rea as, ''that state of mind accompanying
an act, which is regarded by specific law as the ingredient of an offence." For
example, under Section 304 A, rashness or negligence accompanying an act
constitutes mens rea.
Exceptions to the Doctrine of mens rea
Besides the fact that the importance of doctrine of mens rea has receded in
modem time, there are certain spe<..lal circumstances under which the law
imposes strict liability. They are exceptions to the doctrine of mens rea. Thes~
exceptions are : -
1. Where the law imposes strict liability the requirement of mens rea is
dispenseci. with~ For instance, the statutes relating to matters concerning public
health, food, drugs, public safety and social welfare measures impose strict
Likewise, the Motor Vehicle Act, the Arms Act, licensing legislations etc. are .
covered under absolute liability rule and presence of guilty mind is not a
relevant factor to decide the guilt of the accused in these cases. The Privy
1. AIR 1969 SC 373.
2. NDPS Act, COFEPOSA, Prevention of Food Adulteration Act, The Protection of Civil
Rights Act, 1955; The Indecent Representation of Women (Prevention) Act, 1986; SC & ST
(Prevention of Atrocities) Act, 1989 etc.
(
542 JURISPRUDENCE AND LEGAL THEORY
Council, however, observed that the offen~es in which liability could be
imposed without guilty mind must be comparatively far and few.I
2. ·In cases where it is difficult to prove mens rea and the penalties are
petty fines, the expediency demands that dispensation of the requirement of
mens rea would facilitate speedy disposal of trials. The accused can be fined
even without the proof of mens rea.
3. It is not necessary to take mens rea into consideration in deciding cases
relating to public nuisance. It is so in the interest of public safety.
4. Mens rea is unnecessary in those cases which are criminal in form but in
fact they are only summary mode of enforcing a civil right. Thus a legitimate
exercise of the right of private defence 2 may exclude many intentional acts
which would otherwise be crimes. Again, a delicate surgical operation being
only remedy to save the life of a patient; if done with this object but with full
knowledge that it can also be fatal, would not be an offence because the
intention of the operating surgeon is to save the life of the patient.
5. Mens rea is not relevant in cases in whkh the plea of ignorance of law is
raised in defence. In such cases the fact that the offender was not aware of the
rule of law and that he did not intend to violate it, is no defence and he shall
be liable as if he knew the law.
Mens Rea in Socio-Economic Offences
Socio-'economic offences are graver than the traditional offences as they
affect the health, and welfare of the people as a whole and economic fibre of
the nation is undermined. Therefore, legislative policy in respect of such
offences is not to be lenient in punishment. The penal liability in such cases is
treated as strict, i.e., without reference to mens rea. As such the requirement of
mens rea is formally excluded with reference to such offences. The Courts
proceed with the initial presumption of the presence of mens rea while dealing
with such offences .when they find that the object of legislature is by necessary
implication to exclude mens rea in order to give effect to the welfare objective
of the enactment.3 . his own land. Thus a malicious motive per se does not amount to an injuria or a
Presumption of Innocence
It is the fundamental principle of criminal law that every one is presumed
to be innocent until his guilty is proved by the prosecution. This, in other words,
means that a person who is accused of an offence is not bound to n.ake any
statement or offer any explanation .regarding the incidence of r.rime. He stands
before the Court as an innocent person and it is for the prosecution to prove the
guilt of the accused beyond reasonable doubt. However, there are certain
exceptions to this fundamental doctrine of criminal law. They are:-
1. Sriniwas Mal Bairoliya v. Emperor, (1947) 49 Born LR 688.
2. Deo Narayan v. ~tate of U.P., A~R 1973 SC 473; Saheb Singh v. State of M.P., (1986) Cr LJ 128;
Yogendra MorarJI v. State of Gu1arat, AIR 1980 SC 660, etc.
3. State of Maharashtra v. M.H. George, AIR 1965 SC 722; Mangal Das v. State of Maharashtra,
AIR 1966 SC 128, etc.
LIABILITY 543
1. The court may presume that a person who is in possession ·o f stolen goods
soon after the theft is either a thief or a guilty receiver unless he has a
satisfactory explanation for the pPSsession of that goods. 1
2. Where the accused pleads protection .u nder some of the exceptions (i.e.,
defences), ·the court need not presume innocence of the accused. In such
circumstances if the defence fails, the accused will be convicted.
3. There are certain offences relating to trade-mark,2 property-mark3 and
currency-notes4 Ul"\der the Indian Penal Code .where the burden of proof of
innocence is shifted on the accused instead of the prosecution. In such cases, the
presumption of innocence is negatived by the co11rt and the burden of proving
innocence is on the accused. . .
Malice
·In ordinary sense, malice means ill-will, spite; hatred or evil motive. Such
malice is · called as . malice in fact or express malice. Legal malice, that is,
malice in law, on the other hand, denotes a wrongful act done intentionally
without just cause or excuse.
t . .Express Malice or malice in fact.-Generally malice is not relevant in
torts except in cases of tort of malicious prosecution, defamation, injurious
falsehood, conspiracy and deceit. An act otherwise lawful, does not become
unlawful merely because it ,-vas done with bad or evil motives, nor is good
motive a valid justification for an act which is otherwise illegal. In other
. words, where a person has a right to do an act, it is not possible to make the
exercise of such right actionable by alleging or proving that his motive in the
exercise of that right was malicious.
In Mayor of Bradford v. Pickles 5 the defendant dug a well in his land and
thereby cut off the underground water from the plaintiff who was his
neighbour. The plaintiff's well, in consequence dried up. In a suit by , the
plaintiff, it was held that the defendant was not liable, however, -improper
and malicious his motive might be as he had the legal right to dig a well in
legal wrong.6
In yet another case, namely, Moghul Steamship Co. v. Mc Gregor7 a
number of steamship companies combined together and drove the plaintiff
company out of the China tea-carrying trade by offering reduced freight. The
House of Lords held that the plaintiff had no cause of action as the ddendants
had by lawful means acted to protect and extend their trade to boost up their
profits.
1. Section 114, Illustration (a) of the Evidence Act.
2. Section 486, IPC.
3. Sections 487 & 488, IPC.
4. Section 489-E, IPC
5. (1895) AC 587.
6. Other cases are Allen v. Flood, (1898) AC 1.
7. (1892) AC 25.
 544 ,. JURISPRUDENCE AND LEGAL THEORY
2. Malice in ~w (Impl~~d MaliFe)~-Mah)::e bl law meari~( a wrongful act
done iittentiohally withou!Jiittt cause·or excuse~ _Such malice is implied in every
:. case where a person has inflicted injury upon another in contravention of the _,
law without just cause c,r excuse. A man may theref9re/be guilty of malice in
. law even though he acts ignorantly or even ,trith a good motive. The case of
Quinn v. Leathem1 is an illustration on the 1:>0int. :-. ·
In this •·case, the pl~µ1tiff was .:a wh~lesale butcher and the defendants
objected . to his emploflng the µ911-µnion labour in his shop. The defendants
requested the pl~tiff 'to replace!fht:!;-non-union labour with the members. of the
union but the plaintiff :refusecyto do so. Thereupon, the defendants apprbached
one of the plaintiff's regular big custqmer with• the threats of. use ·of force
against him if he continued :to p1lrchase meat frgm the plaintiff. ·The cus,tomer
stopped buying meat fi'om the plaintiff~❖ .who suffered loss thereby. He
therefore, sued the defe9dants for damages. The Court held that there was
malicious motive on the part of the defendants and hence the plaintiff was
entitled to flaim compel)Sation from the _d efendants for their malicious act.
Transferred . Malice (Generic Intention)
Although there is a principle of criminal law that no act is intended unless
all the three aspects of the act, namely, physical doing, circumstances and
consequences, are present. But there is an exception to this rule which · is
covered under the doctrine of transferred malice. It is also sometimes called as
'transmigration of malice'. The doctrine may be explained by an illustration. If
a person intends to cause the death of A and in his attempt to ·c ause the death
of A, he kills B, he would be -guilty of having committed the murder of B
though he never intended to kill B. In this case, the general intention to kill is
transferred to the killing of B. The doctrine of transferred malice is reflected in
Section 301, IPC which reads as under : -
"If a person by doing anything which he intends or knows to be likely to
cause death of any person, whose death he neither intended nor knows himself
to be likely to cause, the death caused by him shall make him liable as if he
had caused the death of the person whose death he neither intended nor ·knew
likely to be caused."
Different stages in the Commission of Crime
There are four stages in -the commission of every offence. They are
(i) intention to commit it ; (ii) preparation; (iii) criminal attempt; and
(iv) commission of the offence.
1. Intention and motive.-Mere intention or will to commit does not
constitute an offence if it is not followed by an external overt act. Every act of
an individuai can be analysed in two stages, namely, the ultimate purpose of it
and the immediate intention of doing it. The former is .c alled the motive which
is different from intention of committing an offence. For example, if a person
steals a few loaves of bread from someone's kitchen for feeding his starving
1. (1901) AC 495.
LIABILITY .
545
children, his motive .or purpose is good nevertheless the intention ·of stealin
constitutes !he offe~ce of theft .which is punishable under the criminal la~
. Thus_ the ultimate obJect or purpose which induces a person to do an act is called
the motive. In other words, motive moves a person for a certain course of
conduct. The Court, while deciding the guilt of the accu~ed takes into
· consideration, his immediate intention and the motive behind it. If the
immediate intent preceding the act is unlawful, the person is held liable even
though the ultimate purpose m~y have been laudable and good. The dacoits
who commit dacoity in a rich man's house and distribute the booty among the
poor to sc:1ve the latter from starvation and misery, shall be punishable because
_their immediate intention is to commit the offence of dacoity though it may be
for a charitable purpose.
An intention is the design with which an act is done to bring about the
_desired consequences. An unintentional act is one in which such a design is
wanting. Thus if a man trespasses into another's land believing it to be his own,
·he intends to enter upon the land which in fact belongs to another, but he does
not intend to enter upon that another's land. Here the act is partly intentional
and partly unintentional. Again, if a woman marries again during the life time
of her husband believing him to be dead, she does not commit bigamy for
though she intends to marry agc1in while her husband is in fact alive, she does
not intend to marry again during her husharid's lifetime.I
The distinction between intention and motive can be well illustrated
by reference to English decision in R. v. Sharpe. 2 In this case, the accused
dug out the corpse of his dead mother from her grave with the object of
.burying her near his father's grave which was at a short distance from her
grave. Though his motive was noble, he was nevertheless held criminally
liable. -
From the above analysis it can be inferred that motive is generally not
taken into consideration while deciding the guilt or innocence of the accused. It
is the intention alone which is relevant and not the motive' to determine
criminal liability. A lawful act done with howsoever bad a motive · will not
make the act unlawful. Conversely, an illegal act with howsoever high a
_motive shall not make an act lawful. But there are certain exceptions to this
general principle when motive may be relevant in criminal cases. These
exceptions are :-
(i) Where motive itself is an ingredi'?nt of the offence.-There are certain
offences in which malice itself is an ingredient of the offence. For instance, the
wrongs of defamation, malicious prosecution, criminal conspiracy, deceit, fraud,
forgery etc., cannot be committed unless fraught with malice. Motive is
therefore, relevant in these cases. Thus in case of a crim~ilal trespass if the
motive is not proved, the offence shall be reduced to one of a simple civil wrong
which is redressible by money compensation.
1. R. v. Tolson, (1889) 15 Cox 629.
2. (1881) 7 Cox 214.
546 JURISPRUDENCE AND LEGAL lHEORY
(ii) ]us Necessitatis.-lt is gen~raUy said that an - ~~f,_, W';h,icl\ Js
intentionally done might not be wrongful if it is done under comp~io11 c;,f4iie
necessity. The proverb "necessity knows no law"1 fully justifies thi~ contentio,1l~
Thus pulling down ·a house on fire to prevent its spread_to oth~~;l'~operty :91" .
throwing goods overboard to lighten a ship cau~t _in a ·_stonn .are CO~Qn _·
illustrations of jus necessitatis. 2 It has, howeyer, been held that h() ~ol.lnt of._ .
necessity would justify taking away the life of another: ·· · ·
The case of Dudley v. Stephens, 3 is a leading decision on \h,elimitatioris of _-
the doctrine of necessity. In this case~ it was held that a man who, in_o.rd~rto ·
save his life from starvation, kills another for the purpose of. feeding <>ri his
flesh, will be guilty of murder, although at that time he was · in such
circumstances that there was no.other chance of preserving his life. The facts of ;..
the case were that three ship wrecked sailors in a boat were without food for
seven days and two of them killed the thitd, a boy and fed on his flesh und~r
such circumstances that there appeared to the accused sailors every
probability that unless they fed upon the boy or one of themselves, would die•of
starvation. Lord Coleridge delivering the judgment observed, ."In this .case the
weakest, the youngest, the most unresisting was chosen. Was it'more necessary
to kill him than one of the grown up men? Obviously No." ·
Gla~vile . Williams 4 refers to a . similar American case5 wherein the
accused Holmes was a member of a crew who had under the orders of the mate,
thrown out sixteen male passengers to save the ship from wrecking. He
charged with manslaughter and sentenced to six month's imprisonment. ·
w•
The law relating to necessity as a defence und~r criminal la\41 is cpntciin.ed-
in Section 81 of the Indian Penal Code. It says that where an act 'c auses
apprehension of death self-preservation or saving the life ofanother will
certainly be irresistible and the action would be jl.istified.provided,it .does riot .
result into taking away of any .human life. However, ifasurgeortkillsachild
in foetus to effect safe delivery and save the mother's life, his action shall be
fully justified under jus necessitatis.
... (iii) Motive as a factor in fixing the measure of liability.~Although
motive is irrelevant in deciding the guilt of the accused, .the courts do take
motive into consideration in determining the measure of criminal liability, i.e.;
the sentence of the accused. For in~tance, if a theft is committed for saving the _
membes of the family · from star"'(ation and death, the sentence would be
relatively lesser than that of the ~entence awarded for removing the gold-
chain from a child's person. Thus besides the gravity of the offence, the motive
l,ehind the commission of offence i~ also ~ 1ken into consideration by the courts
while awarding sentence to him.
1. Necessitatis non habet legum.
2. Winfield : Law of Torts, (6th ed.) p. 63.
3. (1884) 14 QBD 173.
4. Glanvile Williams: Criminal law, p. 582.
5. US v. Holmes, (1842) 26 FC 360.
LIABILITY . 547
~ntention and Knowledge Distinguished
a
Where consequence is expected, it is usually intended but this-. is not
always true. For example, an operating surgeon may know very well th;:tt there
is ~ probability of his patient's death if the latter is operated, yet he does not
intend it to be caused though he expects that it is likely to occur. He in fact
intends the recovery of the patient. This illustration makes the difference
between intent and knowledge clear. To take yet another example, a military
commander orders his troops into action, knowing fully well that many of them
will lose their lives, but he certainly does not intend the deaths to be
-caused instead he intends to defend his country. In other words, he has
knowledge that loss of lives is probable but he certainly does not intend the
lives to be lost.
2. Preparation.-Preparation consists of devising means for the commission
of an offence. The Indian Penal Code does not provide any punishment.for acts
done in the mere stage of preparation. There are, however, two exceptions
when mere preparation is also an offence punishable under the criminal law.
Section 122 of IPC provides preparation to wage war against the State is an
offence. The second exception is preparation to commit dacoity which is an
offence punishable under Section 393, IPC. Mere preparation is not punishable
· under the Penal Code because a person may give up the idea of committing the
· offence before he reaches a stage beyond preparation. Thus a person who plans
to commit a murder of some one buys a pistol and travels to the place of the
proposed victim's place, has committed no offence since he has not gone beyond
the stage of preparation.
3. Criminal Attempt.-An att~mpt to commit a crime is itself an
offence under Section 511 of the Indian Penal Code. A criminal attempt means
making a headway towards the commission of a crime after the preparation is
made. ''An attempt can only be manifested by acts which would end the
consummation of an offence but for the intervention of circumstances
independent of the will of the party." An attempt is punishable even though
the intended offence is not completed. For instance, if a person intending to
pick another's pocket thursts his hand into the pocket but finds it empty, he
shall nevertheless be guilty of attempt1 to commit an offence under Section 511,
I.P.C.
It is significant to note that out of the four distinct stages in commission of
an offence the first two, namely, intention and preparation are commonly
innocent. Thus if 'A' buys some petrol and match-box with intent to set B's
house on fire. He has committed no offence upto this ~tage. The reason being
that he may at any time give up the wrong idea before attempting the
commission of the offence. But if 'A' is found at the door of B's house trying to
throw petrol and lighting the rags soake.4 in petrol, his intention h,.s clearly
transgressed the preparation stage and reached a stage of criminal attempt
therefore, he shall be criminally liably for his act.
1. R. v. Ring, (1891) 17 Cox 491.
548 JURISPRUDENCE AND LEGAL THEORY
Pointing out the· distinction between preparation and atte~pt, Lord
Blackbum in Reg v~ Chessman, 1 observed, "there is, no doubt, a difference-
between preparation antecedent to ·an attempt and the actual atteinpt, but if
the actual transaction has commenced which would have ended in the ,~ritrte if
not interrupted, there is clearly an attempt to commit the crime.II
Salmond also contends that no man can be sa.fely punished for his guilty ·
purposes unless they have manifested themselves into overt acts Which
themselves proclaim his guilt. 2
A few more illustrations would make the distinction between preparation
and attempt further clear : -
A, with the intention of causing the death of a child of tender age, exposes
it in a deserted place. A has committed the offence of attempting to murder
though death of the child does not ensue.
'A' purchases and loads a gun with the intention of shooting Z, but until
some movement is made to use the gun upon the person of Z (i.e., intended
victim), ~ere is only preparation and not an attempt.
Again, A, intending to murder Z by poison purchases poison and mixes the
same with food which remains in A's keeping. A has so far not committed the
offence of attempt under Section 511, IPC. Now, if A places the food on Z"s
table or delivers it to Z's servant to place it on Z's table. A has committed the
offence of attempting to murder.
4. Commission of Crime.-This is the last and final stage in the incidence of
a crime and it is punishable under the criminal law of the land.
Negligence
Jurists have defined negligence in different ways. Salmond observed that
negligence is culpable carelessness. To quote him; "negligence is the state of
mind of undue indifference towards one's conduct and its consequences". It is
carelessness in the matter in which carefulness is obligatory under the law.
Carelessness excludes wrongful intention.
According to Holland, negligence includes all those shades of inadvertence
which result in injury to others but there is a total absence of consciousness on
the part of the doer.
Willes, J., holds that "negligence is the absence of such care as it was the
duty of the defendant to use." 3
Clark and Linsdell observed, "negligence consists in the omission to take
such care as under the circumstances it is thE; k6al duty of a person to take".
Negligence essentially consists in the mental attitude of undue indifference
with respect to one's conduct and its consequences.
l_ IL&C 140.
2. cogitations poenam nemo patitur.
3. Willies ,J., in Grill v_ General Iron Screw Colliery Co., (1866) LR 1 CP 612.
LIABILITY ·549
. The term "negligence" has been defined by Baron Alderson as the ·
"omi_ssion''. to do _somet~ing_ which a reasonable _man, guided upon those
considerations which ordmarily regulate the conduct of human affairs, would
do, or doing something which a ·prudent and reasonable man would not do" .1
Thus ·negligence ~ay-existin non-feasarice or misfeasance.
Theories of Negligence
Some writers assert that negligence is a state of mind while others consider
it as a type of conduct. These two divergent views have given rise to two rival
theories of negligence# namely :-(1) -Subjective Theory, and (2) Objective
Theory.
1. Subjective Theory of Negligence.-The exponents of the subjective theory
maintain that negligence is a state of mind. According to them, negligence
consists in the mental attitude of undue indifference with respect to one's
conduct and its consequence. Salmond supports this _theory. Accordajg to Austin,
"want of advertence which one's duty would naturally suggest, is the
fundamental idea in the conception of negligence." In this opinion, a negligent
wrongdoer is one who does not know that his act is wrongful but would have
known it had it not been because of his indolence and inadvertence.
Thoughtlessness is thus the -e ssence of negligence for Austin.
Austin goes a step further in elaborating the subjective theory and
distinguishes negligence from heedlessness, rashness and recklessness. For him,
negligence is the state of mind of the person who inadvertantly omits an act
and breaks a positive duty. In heedlessness, he does not think of probable
mischief and does not bother to avert the possible consequences.2
In rashness, he does foresee the consequences but foolishly thinks that they
would not follow as a result of his act.
Recklessness, on the other hand, is a condition of mind where the doer
foresees the consequences but does not care whether they result from his act or
not. Thus the line of distinction between rashness and recklessness is very thin.
In the former, there is erroneous thinking that consequences would not follow
while in the latter the person does not bother about the consequences at all.
Salmond objects to the above sub-classification of negligence made by
Austin and treats all these categories under the common head, namely
negligence. The reason being that in all of them there is failure to exhibit the
standard of care required of a reasonable man. In his opinion, Austin's view is
fallacious because negligence may also be deliberate or wilful. He therefore,
concludes that the "essence of negligence is not inadvertence but carelessness
which may or may not result in inavertence."
2. Objective theory of Negligence.-According to this theory, negligence is
not a condition of mind but a particular kind of conduct which is to be judged
1. Baron Alderson in Blyth v. Birmingham Water Works Co_, (1856} 11 Ex 789.
2. Austin: Jurisprudence, p. 427.
550 JURISPRUDENCE AND LEGAL THEORY
objectively. This theory is supported by P~derick Pollock who defined
negligence as the breach of duty to take care which a reasonable person under
those circumstances would take. The tort of negligence is based ori_objective
approach to the conduct and its consequences. Dr._ Winfield defines negligence
as a "the breach of a legal duty to take care which results in damage, undesired
by the defendant to the plaintiff." Thus the three .essential ingredients of
negligence as a tort are
(1) existence of a legal duty;
(2) breach of that duty; and
(3) consequential damages. All these are to be judged objectively on the . .
basis as to how a reasonable man would have acted in those circumstances. I
Salmond criticises objective theory of negligence on the ground that it loses
sight of the essential distinction between intention and negligence. For him,
negligence is purely mental inadvertence and nothing more than carelessness. . ,,
Glanville Williams, the editor of Salmond's Jurisprudence has tried ·to.
reconcile the above two conflicting theories of negligence stating that they are
two aspects of the same problem. In his view, negligence is subjective when a ·
pa_rticular consequence is to be distinguished from the ,inteil.ded consequence. In
this sense, the pertinent question is whether the wrongdoer intended the
consequences or he was just indifferent to them. On the other hand, the objective
theory would be applicable. When it is to be ascertained whether the · ·
consequence is accidental or negligent. In this sense, the relevant question would
be whether the defendant exhibited the standard of care expected of a
reasonable man under those circumstances. · . against extra~rdinary diligence.
The approach of Dr .Glanville Williams appears to be correct and' more
logical. It is for this reason that negligence has been used in two senses in law of
torts. It is used in the sense of 'state of mind' as one of the general principles of
determining tortious liability ~hile 'negligence' as a tort is based on the
objective theory.
Kinds of Negligence
Negligence may be of two kinds (1) Advertent negligence, and
(2) Inadvertent negligence.
Ad~ertent negligence is generally called as wilful negligence. In this kind
of negligence, the harm done is foreseen as probable but it is not intended or
willed. In inadvertent negligence, the harm is neither foreseen nor willed·.
However, in both these cases, carelessness or indifference as to consequences is
present. The distinction between advertent and inadvertent negligence can be
understood by an illustration. An operating surgeon may be fully aware of the
serio~s risk involved in carrying out the surgical operation of his patient but if
he sh!l perfoi::ms !he operation as a result of which the condition of his patient
detenorates, 1t will be a case of advertent negligence. If the surgeon wrongly -
1. Winfield : I.aw of Tort, (6th ed.) p. 478.
LIABILITY 551
.Opel'.ates the patientdue to ignorance or a mistake, his negligence would be
·. inadvertent ·· . ..
. _.. lhe .distinctiOil.benveen advertent negligence (also called as recklessness
·... artd. _jriadvei'tellt :·negligence m~y further be explained by yet another
· ·. :iJh1strationi e.g., where a person drives his car furiously ~ crowded market,
fully concious of serious risk he is thereby exposing to other persons, he does not
• intend to injure any of -them but knowingly and intentionally exposes them to
danger; his ,;act ~f reckless driving amounts to advertent negligence since it was
· probable or · foreseen. But if he drives thoughtlessly and without adverting to
the dangerous consequences of his act, he is guilty of inadvertent negligence.
Degrees of Negligence
Roman .law recognises different degrees _of negligence depending on the
nature of conduct in question. The law expects three degrees of care
corresponding to three degrees of negligence as follows : -
·_· t. Culpa_lata.-lt means failure to show any reasonable care at all. It has
been.call~ as _g ross negli~ce which no man of prudence would commit.
· _· .2. Culpa · levis in abstracto.~lt means failure to take that care as a
· . · reasonable .head of the family (pater familis) would have taken when a
cor1tract was
bein~ concluded for the benefit of h_is family.
: s:c in concreto.-It implies failure by a person to take that care
. ., 3. ·culp11 ,lwis
.w~ch ·he _fn_ordinary course would have shown in dealing with his own
affairs. In simple .words, it means failure to exercise ordinary diligence as
Irt short, in Roman law negligence could be 'gross' or it could be 'slight'. The
English .law, however, does not accept this distinction and holds that there
c~ot be any degrees of negligence. Indian law also takes a similar stand and
doesnot recognise different degrees of negligence. In civil law, there is only one
single standard of care that a reasonable and prudent man would take under the
circumstances itl question. In criminal law, however, degrees of negligence seem
. I ·to have been recognised to determine the sentence .
?: It musfjurther be pointed out that the expression good faith' 1 used in the
I
clndian _Penal Code has a reference to degree of care and attention. It simply
means ~ act done with due care and attention and not an act done with good
:~inhmtjo11. .
. .
·· Legal Wrongs --·
_. · ·•-Jhe infrillgem~nt of a legal. right is known as a legal wrong. ·It is a breach of
· , dt#yr,ecogiu~d l:,y _the.law. If a person enters into a contract, he undertakes a
. ·· dutyJo ~ri.<>~.it, and if he violates this duty, he commits a wrong known as
breach of 'contract. But there are other wrongs which are independent of
· ~~~ct~ ·11l~
State imposes ·certain duties upon the subjects irrespective of their
1. .. Sec:tton 52, IPC.
552 JURISPRUDENCE AND LEGAL THEORY LIABILITY 553

consent and breaches of such duties are calle4 'legal wrongs'. Legal wrongs are Dr. Allen thinks that out of the two views expressed by Blackstone and ···
of two kinds, namely, (1) crimes, and (2) civil wrongs which are also known as Salmond, the former appears to be more near to the truth. He says crime. is a _
'torts'. 'crime' not because it is .a punishable wrong, but because it is a wrong-doing of
such a serious nature that it threatens the well being of the society as a
The distinction between crime and torts is based on the degree of gravity whole. 1 · · · ·
involved in the consequences of the wrongful act. However, in both, the duty
broken is fixed by the State (i.e., law) itself. It must, however, be stated that although the remedy provided under law
of torts is payment of damages to the plaintiff, but in certain exceptional cases ·
The State ~egards certain duties so important that their breach may lead
as provided under Cr. P.C., even a criminal court while passing sentence may
to serious consequences and therefore, places them in the category of crime for
order that the injured party may be paid compensation out of fine imposed on
which the offender is punished under the law of the State. If the mischief
the convicted person. Such amount of. compensation may not be sufficient as
caused due to breach of duty is not so serious as to require intervention of the
compared to the loss (damages) suffered by the injured party. Therefore, if a
State, then it leaves it to the individual to vindicate his rights and recover
subsequent civil suit is filed in respect of the same matter to claim
compensation from the wrongdoer. The wrongs of this nature are called 'torts' or
compensation, the civil court shall take into account any sum paid or recovered
civil wrongs. ·
as compensation under the order of the criminal court.
Crime and Torts Distinguished Similarly, imprisonment is a form of punishment awarded under criminal
Blackstone observes that civil injuries are private wrongs which concern law. But in civil cases also arrest and detention may be made. There is,
individuals, while crimes are public wrongs which concern the State and affect however, a basic difference between the detention made in civil and criminal
the community as a whole. The former are redressible by adequate cases. Under the law of crime, the imprisonment is made by way of sentence
compensation or damages while the· latter are punishable with fine, (penalty) for the offence committed, whereas under civil law the idea is to put
imprisonment or even d.:?ath sentence according to the magnitude of the offence} ., pressure upon the defendant to perform certain duty or discharge his liability
towards the plaintiff and he is released when he has done so. For example, in
In case of crime, the prosecution is launched by the State and thus law is set
civil cases a judgment-debtor may be arrested in execution of a decree under
into motion of its own accord . In case of a civil wrong, however, the person
Section 57 of the Code of Civil Procedure, 1908 and detained for a certain period ·
wronged brings civil proceedings against the defendant and recovers
mentioned in Section 58, C.P.C. Such a person is released even before the
compensation for the wrong.
expiration of the fixed term if he satisfies the decree.
Austin does not accept the Blackstonian distinction between crime and torts.
Be that as it may, the main distinction between crime and torts may briefly
He says all public wrongs are not crimes. For instance, it is a public duty to pay
be tabulated as follows :
tax hence refusal to pay tax being a public wrong, should have been a crime but
it is not so, it is in fact a civil wrong. Again, theft of a watch is an offence but it OUME TORTS
. cannot be said that public is affected thereby. That apart, there are some
wrongs which are both crime and torts, e.g., defamation, assault, conspiracy, 1. Crime is an unlawful act 1. Tort is a mere breach of duty
malicious prosecution, fraud etc. prohibited by law. fixed by law towards the
persons generally.
Kenny has also criticised Blackstonian distinction between crime and torts.
In his opinion, the division of wrongs into crime and civil wrong on the basis of 2. Crime is a violation of a public 2. Tort is a violation of civil or
the difference in their effect is not satisfactory. He further points out that the duty which affects the society personal right of a person.
negligent mismanagement of a company may prove far more harmful to the as a whole. (called plaintiff)
commmunity than the stealing of a handkerchief and yet the former is not 3. The offender who commits a 3. The plaintiff is awarded
treated as a crime while the latter is certainly a crime. damages for the wrong caused to
crime is punished.
According to Salmond, "the distinction between criminal and civil wrongs is him by the defendant.
not based on the difference in the nature of the right infringed but on a
4. Criminal proceedings against 4. Plaintiff himself can sue or
difference in the nature of the remedy applied." The real distinction between
the offender are instituted by institute civil proceedings
the two is that the object of a criminal prosecution is to punish the offender but against the defendant.
the State (i.e., police)
the object of civil action, i.e., torts, is payment of compensation to the plaintiff.
1. Blackstone : Commentaries, Book IV p. 640. 1. Allen C.K. : Legal Rights and Duties, p. 233.
 JURISPRUDENCE AND LEGAL ntEORY LIABILITY 555

CRIME . and making .of new law. He collected several cases of liability without fault
'IORTS..
which in Dean Wigmore's words, "wandered about, unhoused and unshephered
5. Motive, i.e., mens rea of the 5. In torts, ba·r ring a few etc. in _the pathless field of jurisprudence." The doctrine of strict liability is
accused is an ·essential exceptfons;~ motjve of the. applicable in cases involving wild animals, dangerous premises or substances,
ingredient of the offence. defendarit::1s: . generally npt electricity, water, fire explosives etc~ which ate capable of escape. The object
relevant. ·· of strict liability is not to prevent persons from underta,king hazardous and
6. The principle of vicarious -6. The_ principle of vicarious adventurous activities. The law only expects a person to do such acts at his own
liability has. no application in liability _ applies in case . of peril, and keep himself ready to compensate the person wronged if any injury is
case of crimes. torts. · caused to him by the wrongful act. ·
7. The law of crimes is a codified 7. The law of torts is not codified.; Salmond has grouped cases of strict liability under the following three
. law in India. It still remains uncodified in heads:-
India. 1. mistake of law;
Sometimes the same set of facts may constitute poth a tort and crime, s~tjl .. 2. mistake of fact; and
as defamation, conspiracy, deceit, malicious prosecution, etc. The ctvil and "'"
criminal remedies in such cases is not alternative, but they are concurrent. The 3. inevitable Accident.
wrongdoer may be required to pay compensation under the law of torts and he . 1. Mistake of Law.-An act done under the mistake of law is not said to be
may also be held liable ·and_punished under the criminal law~ :_ · an intentional act because the doer of it does not know that what he is doing is
prohibited by law. If a person has committed a wrong under mistake of law, the
Wrongs of Strict Liability law will not hear him say that he had no guilty mind and that but for his
Generally a ·man is held Hable for his negligence whif;h resulf~-into ham\"- ignorance of law, he would have not done it. Ignorance of law is no excuse in
or violation of rights of others. But there are certain exceptj<>~ to this general- almost all the legal systems. This is expressed in the maxim, ignorantia juris
principle of liability. Such cases are those where a person is held. liable for his · meminem excusat. Therefore, it is obvious that in such cases the principle of
act even though he did not do it intentionally or negligently. hi. other words, he absolute or strict liability applies because of the presumption that every one
is held liable irrespective of negligence or carefulness. These cases are covered must know the law relating to his act or conduct. This principle, however, does
under the rule of 'strict 1iability' which is also known as absolute liability. not apply in case of ignorance of a foreign law.
In cases covered under strit:t liability, the wrong arises from the breach .of 2. Mistake of fact.-It is generally said that mistake of fact is a good
an absolute duty. An 'absolute duty' may be defined as a 'duty whichrendei's a defence in law of crimes. However, in English and Indian law mistake of fact is
man liable without any fault of his and irrespectiv,e of any consideration ol not a defence in law of torts, i.e., civil wrongs. He who interferes with the right
intention or negligence on his part." The. word 'strict' or .'absofote' denotes that • of another shall not be allowed to say that he believed in good faith and on
it is not necessary for the injured party to prove any intention _or negligence on• . reasonable grounds in the existence of some circumstances which justified his
the part of the wrong-doer, and no amount of care or cau~ion proved by the · · act.
latter would absolve him from liability. The principle ofabsolute liability In R. v. Prince, 1 a person who abducted a girl under the legal age of consent
has been enunciated by Blackbum, J., of the Exchequer Courf'and affirmed by was held criminally liable and the plea of inevitable mistake as to her age
the House of Lords in Rylands v. Fletcher. 2 tlru.s :~ .· · · failed as a defence. This is so because the act of taking the girl away was itself
wrongful. · · ·
"the person who, for his ..,own purpose~, bring~-on his 'iand, and .collects .a nd •·
· keeps there anything likely to do mischief; if it escapes, must keep it in at-his However, if the intention is lawful, mistake of fact is a valid defence in
peril and if he does not do so, is prima facie answerable for all the. damagi! · criminal .law. For instance, if A intending to kill B, kills C mistaking him to be
which is natural consequence of its escape." B. A has no defence, but if A, who is out-hunting in a forest shoots at a bush
thinking that a tiger was lurking inside and the bullet hits and kills B, he will
Blackburn, J., moulded the differ~nt scattered legal ru'.les:or remedies into a be exempted from criminal liability due to mistake of fact This mistake, in
broad and comprehensive
. .
principle which combines -~-~
restafonieht,,
. .. .
remoulding
. ::-.~
:·
.. . order to qualify for exemption from criminal liability should fulfil two
---------~----------'- . •, . .. . -· '...

. 1. Motive is relevant only in torts of defamation, conspiracy, deceit,-malicious prosecution conditions, namely, (1) it should be reasonable; and (2) it should be mistake of
and nuisance because the very nature of these torts is such that they cannot be committed . fact and not of law.
without intention. ·
2. (1868) 3 HL 330. 1. (1875) 2 CCR 154.
 556 JURISPRUDENCE AND LEGAL TIIEORY
. A few more .illustrative cases may be cited t.o explain the absolute liability
irtvolved in acts done under mistake of fact. If a person trespasses upon another ·
man's land. It is no defence for him to say that he believed in good faith and .on
. reasonable grounds to be his own. 1 Like~_!f a person meddles with another __
person's goods in absolute innocence and under an inevitaJ>le mistake Qf fact, he
shall_nonetheless be liable for all the loss incurred by.the true owner. 2
3. Inevitable Accident.-Inevitable accident is commonly recognised as a
ground of exemption from liability both in civil and criminal law.
Accident may either be culpable or inevitable. It is culpable when caused
due to negligence but inevitable when the avoidance of it would have required
a degree of care exceeding the standard demanded by law. In other words, an
inevitable accident is that which could not possibly be prevented by the
exercise of ordinary care, caution and skill. That is, it must be a physically
unavoidable nature. The case of Stanley v. Power, 3 is a leading decision on
inevitable accident as a defence. In this case, the .defendant while firing at a
pheasant accidently and without negligence shot the plaintiff with a pellet
. from his gun, it was held that he had a good defence. In a subsequent case of
Ryan v. Youngs 4 the sudden death of the driver of a motor vehicle due to
heart-failure as a result of which an accident was caused, was held to be a
mere inevitable accident and defendants were held not liable.
Although inevitable accident serves as a good defence both in civil and the
criminal law, but in civil law, there are some exceptions when inevitable
accident cannot be availed of as a ground of defence. The cases involving strict
l liability are one such exception where the defence of inevitable accident would
fail. So also, a man is strictly liable for the trespass of his cattle5 or escape
flames, fumes, vapours, refuge, dust, smoke etc. from his premises if they cause
of
damage to others. ·
Transformation of Strict liability 'Rule into Absolute Liability
The rule in Rylands v. Fletcher, 6 was laid down in the nineteenth century
in the background of the then existing norms of English Society when
developments in science and technology had not taken place. There has been
tremendous change in the living pattern of human society all over the world
due to rapid progress of science and technology during the preceeding 15Oyears.
These developments have no doubt proved a boon to overall development of
human society, but at the same time made the life more complex and
complicated. In the present millennium of the progressive industrial world, the
rule of strict liability does not afford adequate guidance in evolving any
standard of liability consistent with present day economy and hazardous
1. Baslley v. Clarkson, (1682) 2 Liv 37.
2. Hollins v. Fowler, (1874) 7 HL 757.
3. (1891) 1 QB 86.
4. ((1938) All ER•522.
5. Filburn v. Aquarium, (1890) 25 QBD 358.
6 (1968) LR 3 HL 330.
LIABILITY 557
activities of industrial ·entrepreneurs. Therefore, law has to grow in order to
meet that challenges of the fast chan_ging society. The Supreme· Court,
. _therefore, expressed concern about the weakening effect if strict liability rule
and empltasized the need for its modification to make it more effective and
· relevant ·to the ·changed socio-economic scenario: In its decision in M. C. Mehta
V. Union of India} the Supreme Court observed :
" ..... ~ .... where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of an accident in
the operation of such hazardous or inherently dangerous activity resulting,
for example, an escape of toxic gas, the enterprise is strictly and absolutely .
liable to compensate all those who are affected by the accident and such
liability is not subject to any of the exceptions which operate vis-a-vis the
tortious principle of strict liability under the rule in Rylands v; Fletcher.
The measure of compensation in the kind of cases referred to herein must be
co-related to the . magnitude and capacity of the enterprise because such
compensation must have a deterrent effect..The larger and more prosperous
the enterprise, the greater must be the amount of compensation payable by
it for the harm caused on account of an accident in the carrying on of the
hazardous or inherently dangerous activity by the enterprise.
The Apex Court reaffirmed the principle of absolute ·liability in the
historic Bhopal MIC Gas Tragedy 2 case holding the Union Carbide Company
absolutely liable for this biggest 20th century Industrial disaster and ordered
·the Corporation to pay compensation of 450 crores to the gas victims of Bhopal.
:In the case of Indian Council for Environs Legal A~tion v. Union of India, 3 a
group of Chemical Industrial Units operated various chemical plants in
Bichari Village, in Rajasthan where they produced toxic chemicals. The toxic
chemicals from the plants leaked and polluted the soil and water, devastating
the agricultural economy of the surrounding area. The Court held all the
Chemical industrial plants absolutely liable to compensate for the damage
caused by them to the villagers in the affected area to the soil and to the
underground water.
In M. C. Mehta v. Kamal Nath, 4 the untreated effluents discharged from
the defendant's motel were polluting the river Beas. The construction of the
motel also disturbed the flow of river water and caused damage to flora-fauna
and fishes of the area. The court held the defendant liable and applying the
principle of absolute liability, ordered him to pay exemplary damage of ten
lakh rupees so that it may act as a deterrent for others not to cause pollution in
any manner.
1. AIR 1987 SC 1086;
2. Union ca.-bide Corporation v. Union of India, (1991) 4 SCC 548.
3. AIR 1996 SC 1446.
4. AIR 2000 SC 1997.

558 JURISPRUDENCE AND LEGAL THEORY
···Vicarious Liability
· Normally, it is .t he wrongdoer himsel{who is held liable for his act (qui
Jacit puer alium facit per se). But there may be certain circumstances. when the
liability of the wrongdoer is imposed on some other person than the wrongdoer
himself. That is, some other person is made liable for the wrongful acts of the
wrongdoer. For example, an employer is liable for acts which he has ordered to
be done, or which have been done by his servant, without orders, but within the
scope of servant's employment. Likewise, a principal is liable for the wrongful
acts of his agent done in the ordinary course of business or a guardian is liable
for the wrongful acts of his wards. The doctrine of vicarious liability is based
on the principle of respondent superior. According to Salmond, the
rational basis of the rule of vicarious liability, of which the master-servant
liability serves as the best illustration, is mainly evidential. To quote his own
words:-
."There are such immense difficulties in the way of proving actual
authority, that unless some such conclusive presumption is drawn, masters
would ·make tools of their servants to commit great wrongs. A word, a gesture or
a tone from the master will be sufficient to induce a servant to commit greatest
wrongs, yet who could prove such a measure of complexity."
The principle of vicarious liability has no application in criminal law for
it would be against the public policy to punish a person for the offence
committed by someone else. However, there _are three exceptions to this general
rule:~
1. In many cases the law imposes upon the o"Y'ner of a property the
obligation of managing it so that it does. not injure any one else or the public in
general. In .such cases if a breach of obligation is committed, the owner cannot
escape criminal liability by delegating the management to someone else. 1 For
example, the proprietor of a newspaper would be liable and punished for a
libel (defamation) published in it though he was living at a distance and knew
nothing about the libel until he read the newspaper.
2. In case of public nuisance under Section 268, IPC, also a master is held
vicariously liable for the act of public nuisance committed by his servant.
3. Under the licensing Acts the professionals holding licences would be
vicariously punished for the acts of violations committed by their servants.
The same rule shall be applicable in respect of various price controlling laws. A
master of a business firm could be held liable if his servant who committed an
act in violation of any provision of the statutory law.
The principle of vicarious liability is commonly applicable to civil wrongs.
Thus a master is liable for his servant's wrongful acts or omissions and
likewise, a principlal is held liable if his agent's wrongful acts for the
following reasons :-
1. Sections 154 and 155 of IPC provide punishment by way of penalty upon the owner of
land in certain cases where breach of duty is committed by his agent or manager.
LIABILITY 559
( i) All acts done by a servant in and.about his master's business are done
by his :master's express or implied authority and are therefore, in
reality the .icts .oftlle master for which he may be held liable.
. . .
(ii) The>~ctsfer is capable of bearing the financial burden of civil
· liability as compared with his servant. Moreover, since master reaps
the benefit of the servant's services, he should ·also bear the losses
occasioned by the servant in co~rse of his employment.
(iii) The master is held liable for the wrongful acts of his servant on the
principle ·ofimplied neglig~nce. ·The law presumes that master failed
to .exercise due diligence in chosing a proper servant therefore, he
should be liable for the consequences ensuing from the wrongs of his
servant. ·
(iv) The . principle of vicarious liability also extends to living
representatives for the acts of · the dead in certain · cases. This is
ertshrined in the latin maxim actio persotJ.alis moritur cum persona.
Generally speaking, an action dies with the death of a person.
Therefore, all personal .actions such as assault, defamation, trespass,
etc., come to an end with the death of a person. But in cases of unjust
enrichment, the heirs or successors ·of the deceased shall be
vicariously liable for the wrongful acts of the dead man. For
example, where property belonging to the plaintiff has been
appropriated by a person who has .died and has been added by the
deceased to his own estate, the plaintiff can sue the legal
representatives of the deceased. for the recovery of such property.
Measure of Liability
Criminal Liability.:--It has already been stated earlier that the measure
of criminal liability is mainly based on three major considerations, namely,
(1) motive for the commission of the offence, (2) the magnitude of the offence,
and (3) the character of the offender.
1. Motive
The motive of the offence is an important factor in determining penal
liability and sentencing of the offender. Besides the motive, the magnitude of
the offence that is the evil consequences resulting from the offender's criminal
act are also taken into consideration while sentencing the offender. Some
critics, however, argue that the liability of the offender should not be
determined on the basis of the evil caused to the victim of the offence but it
should be determined on the basis of benefit derived by the offender by his
criminal act. That apart, the character of the offender is also one of the
important factors which is taken into consideration by the trial court while
4eciding the nature and quantum of punishment. Reformative measures such as
probation, parole etc. hardly serve any useful purpose in case of hardened or
habitual offenders. Therefore, deterrent punishment can only be appropriate in
such cases. On the other hand, first offenders, juveniles and persons who have
560 JURISPRUDENCE AND LEGAL THEORY
. .
committed an offence under compelling circumstances may be leniently dealt
with and lesser punishment may serve a useful purpose in their cases. Thus,
when a person is compelled to steal in order to feed his starving children, .t he
law generally considers such temptation to be an extenuating circumstance ''for
the infliction of punishment. This may further be illustrated by some of the ·
cases decided by the Supreme Court.
In Arvind Mohan Sinha v. Amulya Kumar Biswas, 1 the accused were young
boys about 20 years of age engaged in agriculture. They had procured gold in
contravention of the Customs Act and the Defence of India Rules, 1962, for the
marriage of their sister and were sentenced lo imprisonment by the High Court.
But in •appeal, the Supreme Court ordered their release on probation under
Section 4(1) of the Probation of Offenders Act, 1958, in view of the noble cause
which -had compelled them to violate the Customs law, and Gold Control
Rules.
There may be cases when improper motive may make an ad :llegal though
it is otherwise_ a legal act. For instance, where the defendant, a barber started
a hair cutting shop, regardless of any profit for himself, but merely to ruin the
plaintiff's business. The defendant was held liable for damages.2
Commenting on relevance of motive for determination of liability, Justice
Holmes observed that as the law grows, its standards necessarily become more
external, because the Courts have to take into consideration not only the actual
condition of the particular defendant, but whether his conduct would have been
considered as a wrongful act in the fair judgment of an average member of the
community;3
2. Magnitude of the offence
The measure of punishment also varies with the evil consequences of the
criminal act and gravity of the offence. As stated by Salmond, greater the
mischief of the offence, a proportionately greater punishment is inflicted so as
to prevent its recurrence. He further pointed out that if punishments were not to
vary with the magnitude of the offence, the offenders would choose that act
(offence) which entails a lesser form of punishment. Thus, if burglary and
burglary with murder involved the same punishment the offender would prefer
to cause death and avoid detection of crime rather than committing only
burglary.
In Isher Das v. State of Punjab, 4 though the Apex Court reluctantly
allowed the benefit of release on probation to the accused who was found guilty
of offences involving adulteration of food, leaving a note of caution, it
observed:
"Adulteration of food is a menace to public health. The Prevention of Food
Adulteration Act, 1954 has been enacted with the aim of eradicating that anti-
1. AIR 1974 SC 1818.
2. 'futiie v. Buck (Minn, 1909) 119 NW 946.
3. Holmes : The Common Law p. 79.
4. AIR 1972 SC 1295.
LIABILITY
561
social evil- and for ensuring purity in the articles of food The c t h ·
1· htl · · · our s ould not
ig y resort to provis10ns of Probation of Offenders Act in cas f
above 21 years of age found guilty of offences under the said Act." e o persons
In Prakash v. State of M.~., 1 the _Supreme Court ordered the release of
appellant (accused~ on probation who was found guilty and convicted for an
o_ffence under Section 324, IPC, keeping in _view the nature of the offence the
circumstances and antecedents of the offender. In this case the accused '
employ~e of the muni_cipality and was a first offender and his offence :a.:sn: ·
premediated and the mJury caused to the victim was not grave or serious. The
Court ruled that !hese grounds were sufficient to entitle the accused to be
released on probation. _
The modem pen~l policies are invariably based on the principle that all
the offences do not involve equal guilt on the part of the offenders and n
offenders are not equally guilty for the same offence. Therefore, punishment f:r
all th~ offenders who have committed the same offence should not be unif 1
equal. orm Y
3. Character of the offender
~e C~urt,. while awarding punishment to the accused also takes into
consideration his character and antecedents. As stated by· Salmond th II
ch t d· •. f h , worse e
. arac er or 1spos1ho~ o t e offenders~ the severer is his punishment". This
1s the rea_son why habitual_ offenders are generally punished more severely
tha~ the first offenders. Section 75 of the Indian Penal Code provides enhanced
punishment to an accused who has been previously convicted by the Court.
. TI1e Probation of Offender's Act, 1958 also provides that in certain cases, if
it apl?ears to the Court, regard being had to the age, character, antecedents or
physical or mental condition of the accused, that it is expedient to release the
offend~r on probation of good conduct, the court may order his release on
probation rather than sentencing him.
Under the Indian criminal law, the maximum punishment for different
~ff~n~es ~as b~en laid down in the Indian Penal Code and it is left to the
JUd1c_ial ~1sc~ehon of th~ magistrate to decide the quantum of punishment
keepmg m view the motive of the offender, his antecedents and character and
of course, the gravity of the offence. '
Ci~i~ Liability.-The purpose of civil liability is to award compensation
to the mJured party. The quantum of damages is, however, dependent on the
actual loss suffered by the plaintiff. It must be noted that neither the character
2
nor motive of t~e defend_ant are relevant in determining the liability in civil
cases. Law takes mto consideration only the actual consequences that follow a
wrongful act and not the probable or intended ones. However, in certain cases
1. (1993) Cri LJ 119 (SC).
2- By w~y of exce~tion, ~?tive is re]ev~nt in only a few civil wrongs such as defamation,
con~piracy, ~ece1t, mahc1ous prosecution, etc., the reason being that they are crime also and
a c:;:-ime requires mens rea.
562 JURISPRUDENCE AND LEGAL THEORY
\
higher damages may be awarded where defendant's conduct has aggravated
the plaintiffs sufferings. In others, higher damages may be justified in view of
the defendant's behaviour. Thus the court will award higher damages to a
woman plaintiff in ~ defamation case as compared with the male plaintiff
because law expects greater respect for woman in the society. · 24
It would thus be seen that liability arises out of the legal· sanctions
provided by the State. It is because of these legal sanctions that the law seek
to protect the interests of individuals in the society. These sanctions are an
effective measure to ensure performance of duties by persons and refrain them
from committing breaches thereof.
The civil and criminal liabilities ensue out of the legal sanctions. The
remedy for civil wrongs is compensation or damages while for crimes, it is
punishment. But as stated· earlier, all criminal liability is not penal in nature
nor all civil liability is necessarily remedial. It is for this reason that in_
modem time much importance is not given to the ~lassification of liability in
most of the developed legal systems of the worl~.
Civil liability may arise either from breach of a contract or from 'wrongs
independent of· a contract'. A case of breach of contract may be more readily
established than a wrong independent without such breach. In case of wrongs
resulting independent from a contract, as a rule, mental· and bodily suffering is
taken into account for measuring the damages to be awarded. The damages
which are immediate consequence of the wrong are called 'direct' or 'general'
damages while damages in respect of remote consequences of the wrongful act
are known as 'indirect' or 'special damages'. The latter kind of damages are to
be specifically pleaded and proved by the plaintiff before the Court.
Despite the aforesaid general principles of measure of damages, there may
be cases when it may be doubtful whether the action for damages could lie,
even if special damage be proved. For instance, does an injured person weaken
his claim against the person who caused him injury, or against the claim for
compensation from the insurance company by refusing to submit to an operation
which he was suggested to undergo but he refused to do so. 1
000
1. Holland T.E.: Elements of Jurisprudence (13th Ed., 2010) p. 335.
OBLIGATIONS
Obligation in its popular sense is merely a synonym for duty. In legal sense,
it is merely one class of duties, namely, those which are correlatives of rights
in personam. Salmond defines obligation as the vinculum juris, or bond of legal
. necessity which bincts together two or more determinate individuals. 1 In its
juristic sense, obligation includes the following : -
( i) A duty in personam such as a duty to pay a debt, to perform a contract
or to pay damages for torts but not the duties in rem such as duty to
r ~frain from interference with the person, property or reputation of
others.
(ii) Obligation also denotes the bond of legal necessity which the Roman
law called vinculum juris that is, not only a duty but also a
correlative right of other person in the same transaction. Thus in a
contract ·for sale of property the purchaser has a right to receive the
property which is sold on payment of price and the seller is under an
obligation to part with the property and hand it over to the
purchaser on receipt of the price.
(iii) In the third sense, obligation is considered as a proprietary right in
personam, which means a duty which corresponds to such a right. But
the rights which pertain to a person's status such as those created by
marriage etc. are not obligations even though they are rights in
personam.
Definition of Obligation
T.E. Holland has defined obligation as a tie whereby one person is bound to
perform some act for the benefit of another. In some cases the two parties agree
with their mutµa~_<:onsent to be bound together, in other cases they are bound
without their consent. In every case, it is the law that ties the knot and its
untying (solutio) is competent only to same authority. 2 There may, however, be
cases in which a merely moral duty as opposed to a civil obligation receives
legal recognition. For instance, if a person who owes a debt, pays it in ignorance
that it is time-barred by statute of limitation, he will not be allowed to recover
it back from the creditor.
According to Savigny, an obligation is "the control over another person, yet
not over his person in all respects, but over single act of his which must be
conceived of substracted from his free will and subjected to our will."
1. Salmond on Jurisprudence, (12th Ed.) p. 446.
2. Holland : The Elements of Jurisprudence, p. 245.
( 563)

564 JURISPRUDENCE AND LEGAL TIIEORY
Kant has characterised obligation as "the possession or the .will of anQther
· as a means of determining it through my own, in accordance with the law of
freedom, to a definite act"
G. W. Paton contends that an obHgation is that part of the law_ which
creates rights in personam.
According to Anson, obligation is a kind of control exercised by determinate _
persons over certain determinate persons for some specific act or it may also be
called a forbearance which has been valued in terms of money.
Law of obligations, as has been remarked by Lambert, deals with what he
terms as 'mobile' elements in human relationship; in other words it can be said
to be the law of everyday life.
Roman law distinguishes obligation from property. The former is a right in
personam while the latter, a right in rem.
Obligation also differs from liability in the sense that the former is a
proprietary right in personain or a duty which corresponds to such a right but in
liability, the wrongdoer is under a duty to redress the persons wronged.
Chose1 in Action
In jurisprudential terms, a technical synonym for obligation is chose in
action which means 'a thing in action'. A chose in action is thus a·proprietary
right in personam, e.g. a debt or a claim for damages in torts.
In English law, an actionable claim is same as a chose in .action. Thus an
annuity, a copyright, a patent, arrears of rent etc. are actionable claims and
therefore, they are choses in action. It must, however, be stated that the
benefit of a contract before breach may pe an actionable claim, but after the
breach, it is not so. Therefore; a claim for damages for breach of a contract, a
decree of court, negotiable instruments etc. are not actionable claims.
Chose in Possession
Chose in possession as opposed to chose in action means vesting of actual
possession of a thing or a right in person. All proprietary rights in personam are
choses in action but choses in possession refer to anything or right which is in
claimant's possession. 2 For example, the money which a person has in his purse
is a chose in possession whereas the money which a debtor owes to him is a
chose in action.
Salmond has rightly pointed out that the distinctfon_~~etween chose in
action and chose in possession was a characteristic feature of~early laws
wherein extraord_inary importance was attributed to the act of possession but
today this distinction has almost blurred and these terms have acquired a new
meaning with the classification of rights into two broad heads, i.e., rights in
rem and rights in personam.
1. 'chose' simply means a 'thing'.
2. 'chose in possession' means things capable of physical possession and delivery, e.g., tangible
object-Dias & Hughes : Jurisprudence p. 221.
OBLIGATIONS 565-
Solidary Obligations
The general presumption about an obligation is that the person who is
benefitted by it is called creditor and the person who is bound is called debtor.
From the point of view of a creditor, obligation is_ proprietary right in
personam.
Normally, there is only one creditor and one debtor in an obligation. But in
certain transactions there may be two or more creditors or two or more debtors.
In the case of two or more creditors the prfnciple of either joint tenancy or
tenancy in common operates because it is a particular instance of co-ownership.
It is in the case of two or more debtors owing the same debt to a common
creditor that their obligation is called solidary obligation. This can be
illustrated by a concrete example. Suppose a partnership consisting of three
members A, Band C is indebted to a creditor D and owes a debt of Rs. 3000/- to
him. Now in law, it is a single debt of Rs. 3000/- owed by each of these partners
and not the separate debts of Rs. 1000/- owed by each. That is, the creditor D
can compel each of them to pay the whole sum of Rs. 3000 /- and he is not
obliged to divide his claim into as many different parts as there are debtors,
i.e;, three in the instant case. _Thus each -of the debtors is bound in solidum
instead of pro parte that is, the whole amount of debt and not the
proportionate part of it. ·
_ The liability of independent wrongdoers whose acts cause the same damage
also gives rise to a solidary obligation.
A solidary obligation therefore, may be defined as one in which two or
more debtors owe the same thing to the same creditor. In English law solidary
.obligations are of three kinds being either-
(1) Several,
(2) Joint, or
(3) Joint and Several.
1. Several.-Solidary obligations are several when although the thing or
debt owed is the same in case there are as many distinct obligations and causes
of actions as there are debtors. Each debtor is bound to the creditor by a distinct
and independent vinculum juris, to pay the whole debt. When one debtor has
paid -the whole sum due, the whole debt would become discharged as against
all in relation tothat common creditor. The liability of two or more co-sureties,
who guarantee the same debt independent of each other is_ yet another
illustration of solidary obligation which is several.
_ 2. Joint.-When there is one single legal bond or vinculum juris binding all
the debtors, the obligation is called as joint solidary obligation. In such a case,
there is only one cause of action against all whereas in case of a several
solidary obligation there are as many causes of action as there are debtors. The
chief effect of the joint solidary obligation is that all the debtors are

566 JURISPRUDENCE AND LEGAL THEORY
discharged by anything which discharges ahy o~e. of th~m. The ~ebt~ of the
partners. of a partnership firm are of the nature of 1omt solidary obligation.
3. Joint and Several.-Certain solidary obligations are bot~ joi_nt_and
several. They stand midway between several and joint solida~ obligations. In
a joint and several solidary obligation, it is open to the creditor to trea~ t~~
liability either joint or several. For certain purp~ses la~ treats them as J~m
while for others . as several. For instance, under Section 43 of ·the I~dian
Contract Act the liability of debtor is joint and several unless. t~e~e ts an
agreement to thE.! contrary. The liability of joint tort-feasors ts JOmt and
several. According to Dr. Underhill, the obligation arising out of breach of a
trust ·i s also joint and several.1
The pertinent question that often arises is to determine wheth~r a solidary
obligation is in its nature several, joint or joint and several. As pointed out by
Salmond, generally, such obligations are several when, alth~u~h they have .
the same subject-matter, they have different sources. They are 1omt wh~n they
not only have the same subject-matter, but also _the. same s~urces. Jomt and
several solidary obligations are those joint obhgahons which the law, for
several reasons, chooses to treat 'in special cases as if they were several. Thus
joint and several aolidary obligations also have the same sourc~ ~s als~ the
same subject-matter1 but the law does not consider them as compnsmg a single _
vinculum juris, the liabilities of those who commit a tort ~~ a breach of trust
and all contractual obligations which are expressly m~de JOint and sever_al by
the agreement of the parties, are covered under this category of sohdary
obligation.
Kinds of Obligations
Considered from the point of view of their sources, obligations are divisible
into the following four classes:-
1. Contractual (Obligationes ex contractu);
2. Delictal (Obligationes ex delicto);
3. Quasi-contractual( Obligationes quasi-ex-contractu);
4. Innominate.
1. Contractual Obligations.-A contract is a kind of agreement which
creates right in ptrsonam between the parties to it, e.g., contract of ~ale a~d
purchase, leases il.nd guarantee etc. The rights so created are _propneto~y m
nature, but someti:tnes they may not be in personam such as promise of marriage,
which falls within the law of status.
In the ancient Roman law, contracts were generally oral and they had the
same effect as those of the written contracts in modem time. In early law,
obligations being strictly personal in nature, were not assignable but with the
growth of commerce, the rigidity of the old law considerably softened down, as
1. Underhill: l"tusts, (11th ed.} p. 89.
OBLIGATIONS 567
a result of which negotiable instruments came to be assigned. With the passing
of the Judicature Act of 1873 in England, all debts and legal choses in action
were made assignable under the English law. There are, however, certain type
'•of rights which are still not capable of being transferred . .For instance, a right
to sue for damages in torts or a right to personal services without the consent of
the ~rson bound, cannot be assigned or transferred.
There are many contracts which are entered into for the purpose of creating
a right which is to be merely ancillary to another right. For instance,
suretyship or guarantee is a collateral agreement to answer for the debt,
default or mi~carriage of another. Although it is entirely subsidiary in its
nature, it is sometimes legally binding when obligation to which it is
subsidiary is incapable of being judicially enforced. The liability of a surety to
the creditor terminates by the discharge of principal obligation by the debtor
or the guarantee by one of his. ~ureties.
Similarly in case of a contract of pledge, reciprocal obligation of the debtor
and creditor are involved. The debtor is entitled not only to have the thing
pledge.cl re-delivered to him, on payment of his debt, but also to have it
preserved with care and attention by the creditor. Whether it may be used by
· creditor will, however, depend on the terms of the contract. The creditor, on the
other hand, can claim to be indemnified against any expense to which he may
be put on taking care of the pledged goods/ articles.
A warranty also creates obligation as a result of contract between the
parties. It is usually with reference to title or quality of the goods/things,
though mostly accessory to a contract of sale. It may also extend to hire and
purchase agreements.
Ratification is also an act which gives rise to contractual obligation. It
involves adoption by a person as binding upon himself of an act previously done
by him, but not so as to be productive of a subsisting legal obligation.
These obligations resulting from particular contracts are dissolved and
terminate the right in personam when there is performance or release from
performance or certain events make their performance impossible.
2. Delictal Obligations.--,-These are obligations arising out of torts. It
means a duty of making pecuniary satisfaction for the. wrong, i.e., tort
committed by the defendant.
Thus a tortious obligation is a liability to pay pecuniary damag~s for civil
wrong which in English and Indian law is confined to those specific torts for
which remedy is an action for damages and does not include a mere breach of
contract or of a trust or other equitable obligations. A tort may be defined as a
civil injury the remedy for which is an action for damages. But only those civil
remedies are torts where the appropriate remedy for them is an action for
damages. Thus a civil injury resulting out of a. breach of a contract or a trust is
not a tort. ·
568 JURISPRUDENCE AND LEGAL TI-IEORY
Dr. Winfield has defined liability in toJ.its. According to him, "tortious
liability arises from the breach of duty prim'arily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for
unliquidated damages."
This definition of tortious liability as given by Dr. Winfield brings out, the
distinction between contractual obligation and tortious obligation which is as
follows:-
1. Unlike in contracts, the duties in torts are fixed by general law of the
land. In a contract they arise out of an agreement between the parties. The duty
in a contract cannot be enforced by a third party but only by the parties to the
contract. For example, the driver of a car is under a general duty towards the
public to drive the car carefully along the road and if causes injury to any one as
a result of rash or negligent driving, he shall be liable to pay damages to the
injured person. The duty violated is a general duty which the driver owes to
the public.
2. In torts no privity is needed, but it is implied in case of a contract.
3. A tort is generally a violation of a right in rem but a breach of contract is
an infringement of a right in personam.
4. In delicta 1. obligations, damages claimed are always unliquidated, that
is not pre-determined whereas damages are liquidated, i.e., pre-fixed by the
parties in contractual obligations.
5. A contract is based on consent but a tort is inflicted against or without
consent. Again, privity is implied between the parties in a contract but it is not
so in case of a tort.
It may further be pointed out that Dr. Winfield's definition of tortious
obligation contairis four distinct elements which distinguish a tort from four
other kinds of wrongs which are not torts. They are : -
(i) A criminal wrong is difierent from a tort. There are, however, certain
wrongs which are both crime and torts, e.g., defamation, malicious prosecution,
nuisance, conspiracy deceit, etc.,
(ii) No civil wrong can be a tort unless an action for damages has been
brought by the plaintiff against the wrongdoer.
(iii) If a ..vrong arises strictly out of breach of a contract, it cannot be called
a tort. It is, however, true that there may be certain wrongs which may be
actionable botsh as a tort as well as breach of a contract. For example, if a
person does not return the ornaments borrowed by him to the owner, the owner
may sue him for the tort of conversion or he may also bring an action against
him for the breach of a contract.
(iv) The obligations arising out of breach of a trust or those which are of a
equitable nature, are also not covered under the category of torts because the
OBLIGATIONS
former have their origin in the Court of Chancery while the latter in the court
of common law.
3. Quasi-Contractual Obligation.-These obligations are regarded by law
as contractual though they are not so in fact. In Roman law, such obligations
were called obligationes quasi ex contractu, while in English law, they are.
called quasi-contractual.
In certain cases, the law departs from the· actual facts and implies a
contract by fiction. For example, a money decree of the court creates an
obligation which is not contractual as there is no prior agreement to pay. The
law, however, presumes that there is a duty to pay and also promise to pay,
therefore, it is quasi-contractual obligation.
The obligations arising ex lege have been described as quasi-ex contractu
under the Roman Law. A quasi-contractual obligations are well explained with
appropriate illustrations in Chapter V of the Indian Contract Act, 1872 which
deals with 'certain relations resembling those created by contracts'.
A parent, on the birth of a child is under an obligation to nourish him and
control his actions during the child's tender age. Parents duty to bring up and
support his child is his quasi~contractual obligation. Similarly, the relation of
guardian and ward is analogous to that of parent and child and regulated law
of quasi-contractual obligation.
The fiduciary relationship created by a trust is yet another illustration of
quasi-contractual duties and obligations. There are certain obligations of the
nature of the trust under the Indian Trusts Act, 1872. Under a trust, the person of
incidence i.e. trustee, owes an obligation towards the person, of inherence i.e.
cestui-que-trust to protect the latter's right in personam.
Theory of Unjust Enrichment.-Mansfield, who is considered to be the real
founder of quasi-contractu~l obligations, explained that the obligations
resembling those created by contract were based on the principle that law and
justice should try to prevent ''unjust enrichment", that is, enrichment of one
person at the cost of another. In other words, the gist of the action is that the
defendant, who got money by mistaken payment or through extortion or
oppression or for an undue advantage taken of the plaintiff's situation, contrary
to law, is obliged by the principles of natural justice and equity to refund the
money to one who legally owns it.
The House of Lords in Fibrosa Spolka Akeyjna v. Fairbain Lawson Combe 1
applied the theory on the principle of equity and natural justice. In this case, a
sum of money was paid in advances under a contract for the supply of a
machinery, and the performance was obstructed by outbreak of World War II.
Their Lordships allowed the advance to be recovered back as having been paid
for a consideration which had wholly failed. Lord Wright supporting the
theory of unjust enrichment observed "any civilised system of law is bound to
1. (1943) AC 32 at p. 63.
570 1URISPRUDENCE AND LEGAL THEORY
·provide remedies for cases of what has been called as unjust enrichment or unjust
benefit and prevent a man from retaining the'.money or some benefit derived
from another which is against conscience that he should keep. Such remedies
being different frol1l remedies in contract or tort are recognised as quasi-
contractual obligations." · .·
Sect~ons 68 to 72 contained in chapter V of the Indi~ Contract Act, 1872
deal with such remedy under the heading "Certain Relations resembling those
created by contract." · to be reimbursed by the other.11his may be illustrated as follows:-
Blackstone observes that a judgment of a money decree creates a debt,
which though non-contractual, the law by implication treats within the
sphere of contract. Therefore, whatever the court of law orders any one to pay,
becomes instantly a dt?bt which he had beforehand contracted to discharge . .,
Lord Esher made similar observations in Grant v. Easton. 1 He said, "the
liability of the defendant arises upon the implied contract to pay the amount
of judgment." . paid. 2
Again, if a person travels by a train, it implies that he has agreed to pay
the fare. Thus paymE!nt of fare is a quasi-contractual obligation of ·. the
passenger.
According to Dr, Winfield, "a quasi-contractual obligation signifies
liabi~ity, not exclusively referable to any other head of law, imposed .upon a
particular person to pay money to another particular person on the ground of
unjust benefit." Thus an obligation to pay money received by a person under
.
mistake or obtained by fraud is an illustration of quasi-contractual obligation.2
Quasi-contractual obligations also include those obligations which are in
fact delictal or tortiotts and not contractual, but if the person wronged so desires,
he may treat them as contractual and sue the wrongdou for a breach of
contract. Thus if A obtains money from B by fradulent misrepresentation, B can
sue A either in tort for deceit and recover damages or on fictitious contract for
the return of money. 'l'o take another example, if A wrongfully sells the goods of
B, then B may sue A for damages in tort of conversion or he may elect to waive
the tort and sue A ~n a fictitious contract demanding from him the payment of
the money so received as having rightly sold the goods as B's agent. Here the
law presumes a contract and an implied contract to pay.
Broadly speaking, the following may be treated as illustrative cases of
quasi-contract.
(i) Claim for necessaries supplied to person incapable of contracting on his
own acco~nt3.-If a person, incapable of entering into a contract, or any one
whom ~e ts ~egally hound to support, is supplied by another person with
necessaries swted to hi.s condition in life--the person who has furnished such
supplies .is entitled to be reimbursed from the property of such incapable person.
1. (1883) 13 QBD ~ -
2. Achutan Pillai P.S.: Principles of lAw of Torts Chapter I.
3. See 68 of the Indian Contract Act, 1872.
OBLIGATIONS
Thus A supplies B, a lunatic, with necessaries suitable to his condition in life.
A is entitled to be reimbursed from B's pr~perty. A s~pplies. t? th~ ~ife .~d
children of B, a lunatic, with necessaries suitable to their condition m life. Am
entitled to be reimbursed from B 's property•
(ii) Reimbursement of person paying m~mey due ~y another in pa~ent of
which he is interested.-A person who is interested m the paym~nt _of m<?ney
which another is bound by law to pay, and who, therefore, pays 1t, is entitled
Where 'B' holds a land on ct lease granted by 'A', the Zamindar. Th~
. arrears, .h"1s 1and.1s
o the State Government being m
revenue payable by A t 1 h
advertised for sale by the Government. Under the ~evenue aw, t e
consequences of such sale will be annulment of B's lease. B m order to prevent
the sale and consequent annulment of his own lease, pays to the Government the
sum due from A. In such a case, A is bound to make good to B the amount so
,: (iii) Obligation of person enjoying benefit of non-gr~tuitous ac~-Whe~e a
person lawfully does anything for another person, or delivers a~ythmg to h~,
not intending to do so gratuitously, and such other person enJoys the benefit
thereof, the latter is bound to make compensation to the former m respect of, or
· to restore, the thing so done or delivered.3 Th~s A, a trade~man, leaves goods at
B's house by mistake. B treats the goods as his own. He is bound to pay A for
them. But where A saves B's property from fire. A is ~ot entitled to
compensation from B, if the circumstances show that he intended to act
gratuitously. .
The obligation of the person under th~ a_foresaid provision of law arises
when the following three conditions are satisfied :
(1) A person should have lawfully done something for another person or
delivered something to him.
(2) In doing the said thing or delivering the said thing, he must have
intended to act gratuitously; and .
(3) the other person for who~ something was done or to whom something
was delivered, must enjoy the benefit thereof.
The rules applies to individuals as well as to the corporations. Thus in
State of West Bengal v. Mondal and Sons4 the plaintiff, on the request of !he
officer of the State Government constructed a Kutcha road, guard_r<_>om, offi~e,
kitchen room for staff and storage shed for the use of Civil Supplies
D rtment The State accepted the work but denied liability under the
p;~:nce that no contract had been concluded as requir~d by Article 299 of the
1. See 69 of the Indian Contract Act, 1872.
2. See illustration of Section 69.
3. Section 70.
4. Per Gajendragadkar, J. ,(afterwards CJI) in State of West Bengal v. B.K. Mondal and So~h __
AIR 1962 SC 779.
572 JURISPRUDENCE AND LEGAL THEORY
Constitution. The·contractor was forced to mo-ye the Court. Gajendragadkar, J.,
(as he then was) examined the c_onditions of liability. and found that they were
all satisfied and therefore, held · the State liable. No doubt, the State even
after having requested for the works had the right to reject it and ask the
contractor to .demolish the constructions and t~ke away the material used, but
since the State accepted constructed· sheds, rooms etc. and used them and
enjoyed the benefit, therefore, the Government was bound to pay the costs to
the contractor.
(iv) Liability of person to whom money is paid, or thing delivered, by
mistake or under coercion.-A person to whom money has been paid or anything
delivered by mistake or under coercion must repay or return it. 1
It would be pertinent to mention the reasons as to why the fiction of quasi.:.
contractual obligation has been recognised in law. They are:-'-
Firstly, the classification of obligations into contractual and delictal
(tortious) obligations is not exhaustive. It has been said earlier that the ·
damages in torts are ·unliquidated while in contract they are liquidated. But
there may be torts in which damages are liquidated as in case of the recovery
of the price of the goods which is wrongfully sold by the defendant.
Secondly, legal fictions have always been used in assisting the
development of law. Therefore, in certain circumstances the courts by fiction
may presume that a person is bound to pay as if he had contracted to pay.2
Thirdly, the litigants generally have a desire to obtain the benefit of the
superior efficiency of the contractual remedies as compared with the remedies
available in torts. The courts therefore, recognise fictitious contractual
obligations in order to protect the interest of plaintiffs.
4. Innominate Obligations.-Salmond calls it a residuary class of
obligations. Those obligations which are not covered under any of the aforesaid
three categories are called innominate obligations. For instance, the
obligations of trustees towards their beneficiaries and other equitable
obligations are the species of innominate obligations though they form a part
of the law of property in modem legal systems.
The Indian Trusts Act, 1882 refers to certain obligations which are created
in the nature of trust wherein the person- holding property must, so far as may
be, perform the same duties and subject to same liabilities or disabilities, as if
he were a trustee of the property for the person for whose benefit he holds it
under the law of trusts, obligations in the nature of trust, which may be called
as innominate obligations, are created in the following circumstances :-
1. Where it does not appear that the transferer intended to dispose of
beneficial interest. 3
1. Salmond on Jurisprudence, (12th ed.) pp. 456-459.
2. Supra : Quasi-contractual Obligations.
3. Section 131, The Indian Trusts Act, 1882.
· OBLIGATIONS --~:....,._ 573
2. In case of transfer to one for consideration paid by another. 1
. 3. ' Where trust is completely executed without exhausting the trust
property.2 · ·
4. Where a testator bequeaths certain property for the purpose of the
trust which is prima facie illegal.3
5. Where a debtor becomes the executor or legal representative of _his
· creditor, he must hold the debt money for the benefit of the persons.
interested therein.4 ·
6. Advantage gained by undue influence etc.5
7. Generally, an obligatory contract is a species of agreement. But there
may be a situation when agreement produces no legal e~fect upon t_he
relations between the parties. Such agreements which compr~se
consensual acts are recognised by law of obligations and they do give
rise to obligations·between the parties.
Commenting on this kind of obligatory contract, Justice Blackburn in the
case of Smith v. Hughes6 observed, "whatever a man's real inten~on may be,
but if he 50 conducts hims~lf that a reasonable man would beheve he was
assenting to the terms proposed by the other party, and that the oth_er pa~ty on
that belief ·enters into a contract with him, the man thus conducting h1mse~f
would be equally bound as if he had intended to agree to the other party s
terms".
From the above discussion, it is evident that though the -conception of
obligation differs from that of liab_ility, ~he _two are closely int~r-r~lated. The
liability of a person arises out of his obhgaho~s. _1:terefore, obh?ah~n has t~e
same importance in law as the concept of hab1hty. Thus, obhgahon, as its
etymology denotes, is a tie, whereby one person is bound to perform some act for
the benefit of another under legal duty, which may arise out of a contract or a .
dilect.7
000
l. Section 82, The Indian Trusts Act, 1882.
2. Ibid., Section 83.
3. Ibid., Section 85.
4. Ibid., Section 87.
5. Ibid., Section 89.
6. (1871) LR 6 QB 607.
7. Holland T.E.: Elements of Jurisprudence (13th Ed., 2010), P· 245.

25
TH'E LAW OF PROCEDURE
Law has to play an important role in the administration of justice. It has a
dual role to play J1' tho attainment of justice. Firstly, it determines those rights
the breach of which em be remedied by legal procedure and secondly, it lays
down the procedure lot enforcement of legal rights. From this point of view,
law may be either tubstantive or procedural. The substantive law is that
which defines the rights while procedural law determines the remedies.
Procedural law is also called "law of action" .1 It is that branch which governs
the process of litigatioh. 2 The term 'action' in its widest sense includes legal
proceeding~ both civil ijnd criminal. · 3. The question as to what facts constitute a wrong is determined by the
According to theC@mmon Law Procedure Act, the word 'procedure', denotes
in its larger sense, "the mode of proceeding by which a legal right is enforced,
as distinguished from the law which gives or defines a right, and which by
means of the proce@ding of the Court is to administer the machinery as
distinguished from the product."3 In simple words, procedure prescribes all the
steps that must be taken in order to set in motion the machinery of law Courts
for the adjudication of disputes between the parties.
The rules of procedure occupy an important place in administration of
justi~e by law Court!t, These rules, like those of substantive law, are primarily
applicable to the petsons concerned with the justice system administration,
whether it be civil, criminal justice as also the parties concerned.
. . B~oa~l~ speaking, the law of procedure comprises the rules relating to
(1) JUnsd1chon of the Court, (ii) proceeding in the Court, (iii) issue of processes
(s~mmons, w~~rants etc.), (iv) pleadings, (v) trial procedure, (vi) recording of
ev_~~e_nce, (vn) ap_(:>earance of parties, advocates, prosecutors etc.,
(~m) Judgment o! th(¼ Court, (ix) Costs, (x) review, revision, appeals etc. and
fmally, the execution ()f decree/ order or punishment in criminal cases.
Substantive and Pl'ocedural Law
Unli~e the _proc~dural law which governs the process of litigation,
substantive !aw IS COf\cemed with the ends which the administration of justice
seeks to achieve. Pr~~dural law deals with the means and procedure by which
thos~ end8 can be at::hieved. In other words, it regulates the conduct and
relation~ of courts ~nd litigants in respect of judicial proceedings. The
substantive law, on the other hand, determines their conduct and relation in
respect of the matter~ litigated.
l. Quod ad actiones P~rtinet.
2. Fitzgerald, P.J. (eel.): Salmond on Jurisprudence, (12th ed.) p. 461.
3. Poyser v. Minors, LR 7 QBD 329.
( 574)
THE LAW OF PROCEDURE 575
Difference ·Between Substantive and Procedural Law
According to Salmond, the procedural law can be distinguished from
substantive law on the following grounds : -
1. Substantive law determines the conduct and relations of the parties inter
se in respect of ..the matter litigated whereas the procedural law· regulates the
conduct and relations of courts and litigants in respects of litigation. _
2; Substantive law deals with the ends which the administration of justice .
contemplates while procedural law deals with the means and instruments by
which the ends of administration of justice are to be attained~ For example, the
question that a person has a right to recover certain property pertains to
substantive law because protection of such a right is among one of the ends of
justice : but in what court and within what time the proceedings should be
instituted is a question of procedural law.
substantive law while what facts constitute proof of a wrong is a question of
procedure.
4. Substantive law defines the remedy and the right, whereas the law of
procedure defines the modes and conditions of the application of one to the
other. 1
5. Substantive law relates to matters outside the courts · whereas the
procedural law regulates affairs inside the courts.
Despite the above distinction, it is not wholly correct to say that
substantive law defines the rights while the procedural law determines the
remedies. There are many rights which pertain to the sphere of procedure, e.g.,
a right of appeal, a right to interrogate the opposite party, a right to give
evidence on one's own behalf etc. Conversely, there may be certain rules
determining remedy which may be a part of substantive law. For instance, the
rules determining classes of agreements which shall be specifically enforced
are clearly substantive in nature. Again, the substantive part of the criminal
law deals, not with crimes alone, but punishments as well. In civil law, rules as
to measure of damages and power to recover them are in the nature of a
remedial rights and pertain to the sphere of substantive law.
It must be stated that most part of the Code of Criminal Procedure and the
law of Evidence pertains to procedural law whereas the Indian Penal Code, the
law of contract, transfer of property, negotiable instruments etc. are the
examples of substantive law. Again, company law is generally regarded more
as a substantive law though it has so much of procedure in it since it contains
the procedure for formation and management of companies, mode of increasing,
reducing or reorganising of share-capital, procedure for company-meetings,
amalgamation, winding up etc. The first part of the Code of Civil Procedure is
mostly related to the substantive law as it contains the general principles of
1. Pyser v. Minors, LR 7 QBD 329.
IL
JURISPRUDENCE AND LE~AL THEORY
576
the la~. The second part consisting of orders, however, pertains to procedural
law as it relates to the procedure of civil proceedings.
Salmond specifically refers to three instances w_here the ~les of proceciure
which, in their operation, are wholly or substantially equ~valent to rules of
substantive law. It is for this reason he says that the difference between
substantive law and procedure law is one of fomi. rather than of substance. A
rule falling in one category may, by a change in form, pass over into another
without materially affecting the practical issue. These instancesare : -
1. There is a rule of evidence that in order to prove a contract, it must be in
writing. This corresponds to the rule of substantive law t~a_t a ~ontract is v~id
unless it is reduced in writing. Thus in the former, the writing 1s the exclusive
evidence of title while in the latter, writing is a part of evidence itself.
Therefore, is it evident that the distinction is one of form rather than of
substance.
2. Again, all conclusive presumptions pertain in form to procedure, but in
effect they constitute the substantive part of_ law .. ~or exa~ple~ the rule of
evidence that a child below the age of seven 1s dolz zncapex, i.e., incapable of
criminal intention, is a part of law of procedure but it differs only in form from
the substantive rule that no child under that age is punishable for an offence. 1
To cite yet another example, originally, a bond was considered as_ a conclusive
proof of existence of the debt but now it is considered to be creative of a debt.
Thus its form has transformed from procedural law to substantive law.
3. It has been said that limitation of actions is procedural equivalent of the
right of prescription which is a subject-matter of substantive law. The la~ of
limitation which pertains to procedural law destroys the bond between n?ht
and remedy whereas the right of prescription~ which_ is its s~bs_tanhve
equivalent, destroys the right itself. _Thu~ in t~eir practical apphcahon the
effect of both is s<lme although they differ m their forms.
The rules of pleading and the law of evidence constif:ute the most import~t
branches of procedural law. The rules of pleading must be followed by par~1es
to make out their case before the court of law so as to enable the court to deetde
the case. The law of evidence contains the rules by which the proof of disputed
facts is governed. Thus these two have a major role to play in enabling the
courts to decide cases. 2 · . the parties may relate to a party's right to property or a declaration (of
It is significant to note that where procedural law differs from the
substantive law, the latter shall prevail over the former, becaus~ _the
procedural law deals with the form and not with the substance or the spmt of
the law. The law courts would always look to the spirit of the law and may
even go beyond the procedural law for this purpose if so required. Further,
there can be no estoppel against the statute and the rule of estoppel would not
be allowed to prevail over the provisions of the substantive law.
1. Section 82, IPC.
2. Pollock : Turisprudence And Legal Theory, pp. 43-44.
THE LAW OF PROCEDURE
577
Various Stages of Judicial Procedure
Every judicial proceeding must contain five stages, which may be called as
its essential elements, 1 namely, (1) Summons, (2) Pleading, (3) Proof,
(4) Judgment, and (5) Execution of the decree or order. ·
1. Summons.___:_The summons provide to all interested parties an opportunity
for appearance in a court in order to putforth their respective arguments for the
settlement of issues.
2. Pleading.-Pleadings are the backbone of a litigation. The Code of Civil
Procedure, 1908 defines 'pleading' as meaning a 'plaint' or a written statement.2
· Pleading formulates statement of the parties in writing setting out their
contention of claims or counter-claims. According to P.C. Mogha, "pleading
contains statement written, drawn up and filed by each party to a case, stating
that his contention will be at the trial and giving all such detail, so that the
opposite pa-ty may know what case he has to meet or what is reply to his
case." Thus pleading constitutes written statement filed by each party to the
case. They give all such details as opponent needs in order to prepare his case.
In India, as a rule there are only two pleadings in a suit, namely, (1) a plaint,
and (2) a written statement. Briefly stated, pleading is a part of procedural
law which enables all the concerned parties to formulate their "respecctive
issues both on points of law and facts for assistance of the court so that J.t may
eventually adjudicate upon the issues involved in the case. ·
3. Proof.-It is a process which enables the parties to furnish the material
by adducing evidence so that the court may arrive at the right conclusion on the
basis of issues for determination before it.
_ 4. Judgment.-;--A judgment contains the statements given by the Judge about
,.,, the grounds of a decree or order. It embodies the decision. Judgment of courts·
other than Small Causes Courts, shall contain (a) a concise statement of the
case; (b) the points for determination; (c) the decision thereon; (d) the reasons
for decision.
The judgments of the Courts of Small Causes need not contain more than (b)
and (c) above. A mere order deciding the matter in dispute, unsupported by
reasons is no judgment at all. 3
The judgment by which the Court decides the disputed question between
nullity, legitimacy, title etc.) or a dissolution of status or an affirmation of the
due execution of a legal act, or an award of damages for a wrongful act or an
order of specific performance or non-performance of a certain act or restitution
etc.
The Court in its judgment may also order the losing side to pay 'costs' to
which the other party has been put in consequence of the suit. It is a kind of
1. Salmond on Jurisprudence, (12th ed.) p. 464.
2. Order 6, Rule I, Code of Civil Procedure, 1908.
3. Swarnalata v. Harendra Kumar, AIR 1969 SC 1167.
 THE LAW Of PROCEDURE 579
JURISPRUDENCE AND LEGAL THEORY
I
578
documents produced f~r the inspec\ion':t ih"_:"~~t under inquiry; and (2) all
before it by witnesses in relation to ·. tt .
penalty imposed on the losing party for his/her wrongful claim or for causing
wilful delay in justice. ~o~e Writers hold that this is not the real defini . . . , .
s. Execution.-It involves the physical force needed to uphold the judgment but .1t·. .ts rat.her a statement
• · of k1·nds of ev1
..d ence Thi~on of the term
s definiti • cl evidence'
when voluntary submission is not forthcoming. Execution is a process by which two kmds of evidence, namely, statements of :tn . on m ll:des only
the Court enforces its decree. In other words, it is an act of carrying out the allege that the definition does not menti w1 . esses. and documents._They
judgment into effect, Executior, of a decree or order compels the defendaJlt to do . Act does regard them as relevant eviden':.~';""U:U,on ~r. a~mission, tho,igh the
or pay what has been ordered by the Court. It may involve sale or attachment . be well grounded inasmuch as ad uuss1on . . . . or
. confessions
. cntictsm
can bedoes tnot. seem
d to
of ·any property or arrest or detention of the defendant or appointment of a ca t.egory or the other. If an admission is orai i . .. . . p~ un er one
receiver for the property, A decree may be executed either by1 the Court which spoken words by :the witness and it ·n be ~ · ev~dence will be given thr-eugh
that will be a document s· ame . t w1 ..· ;th·ora. ev1denc.•e, and if it is in writing
passed it, or by the Court to which it is sent for execution. The question of . · · · is rue w1 confessio · 11 If . '
execution, however, does not arise in case of a successful defendant, except for made to the Court itself, it will be recorded . n as we . confession is
therefore, it will become a docum t . _and signed by the accused and
the recovery of costs. · remain oral evidence. I · · en ary evidence, and if it is oral, it will
The execution of a judgment in a civil cause does not take place except on
. According to Taylor the word· 'evidence; . . . . . . . . . .
demand of a litigant party. the legal means exclusive of mere ar t .m ~:i,
relation to law includes all
any fact, the truth of which is submi~en_ wd.. ··a1 _tend .!o prove or disprove ·
Evidence · • . ·. e o JU 1c1 . investigation.2
In context of the Indian Evidence Act, 1872, the word 'evidence' means and
includes all statements which the court permits or requires to be made before it
The ObJect & Purpose of Evidence
. The object and purpose of evidence is tw t Id . . .
by witnesses in relation to matters of fact under enquiry and all documents ? ·.
enquiry by resorting to d0.::triT\e of 'judic~ 1 ,F~~y, to limit ~e field of
produced for the inspection of the Court. presumptions4 by whkh certain ro .ti ia notice and making use of
proved by the fact situation mth p po;1 onds are ·assumed to be sufficiently
Definition of Evidence which are too remote or havm· e. cabse. . econ ly, excluding of cert.ain evidence
g no earmg on th · · · ·
!hey a~e called irrelevant f.icts or the facts ~ ISSues involved in the case.
Taylor defines evidence as "all the legal means, exclusive of mere
argument, which tend .to prove or disprove any fact, the truth of which is
2 issues m th.e cas·e · Such ·ev1·d ence
. . IS
. Ob .. . w
[ dch
· ·.a re not
· .r elevant
· to the
submitted to judicial investigation" . evidentiary · value. vious Y · iscarded as · they have no
According to Salmond, any such fact which possesses probative force is
called evidence. Salmond further says that one fact is evidence of another Oral, Documentary and Real Evidence .
when the existence of the former creates a reasonable belief in the existence of . The statements made by a witness before a C
the latter and the quality by virtue of which it has such an effect is called evidence. The documents placed before the ourt o_f law ~re called oral
probative force.3 documentary evidence. Besides the documen Cour~ for mspection are called
which are produced ·before a Court in cou tary _ev1_d~nce, the material objects
Phipson, in his definition of evidence says, "evidence as the term is used in
the real evidence. For example in case~: of a Judmal proceedings are called
judkial proceedings, means the facts, testimony and documents which may 4 be made by an eye-witness before the ud . a tna~ for murder, the statement
legally received in order to prove or disprove the fact under inquiry ." This the correspondence made by ac Jd ge ts oral evidence, the letters containing
definition appears to be too restrictive when compared with that of Taylor's documentary evidence while thec~:e pe~~s reg~rding the plan of murder is
definition of evidence which seems to be too wide as it also includes murder is real evidence. gger, 1 e or pistol used for committing the
presumptions and judicial notice which cannot strictly be regarded as evidence.
According to Bentham, "the fact which when present in mind tells about Distinction between Proof and Evidence
the existence or non-existence of another fact, is called evidence." . The terms 'proof a..~d 'evidence' are often d
is not so. Proof is the effect or result o f ev1.;se
ence.asProof
synonymous
consistsbut, in fact, it
of that facts
Section 3 of the Indian Evidence Act, 1872 says, "evidence means and
includes (1) all statements which the Court permits or requires to be made 1. ~e lHata SEin~h v. State of Madhya Bharat (now MP) AIR 1953 SC 458
2- 1.ay ~r on vidence (11th Ed.) p . 1. ' ·
1. Section 38, CPC. 3· Section 56 of the Indian Evidence Act, 1872.
2. Taylor: Treatise on the Law of Evidence, Sec. 1. 4. For example, a person not heard of for seven .
below the age of seven years is incapabl f yea~ ~s pres~ed to be dead, or a chilJ
3. Salmond on Jurisprudence, {12th ed.) p. 404. e o comnuttmg a cnme (Doli incapex).
4. Phispson: Treatise on Evidence, p.1.
 · THE LAW OF PROCEDURE . 581

580 _ JURISPRUDENCE AND LE9~L THEORY -- proved. -But it is often said that negative evidence is ordinarily no good
d. 1 tends to convince the mind about the evidence-. 1 . _
which either immediately or me iat~/ n Proof is the establishment of fact..:in- 4. Personal arid Real Evidence.-Personal evidence is otherwise termed as
truth or falsehood of a fact or pr?pos1 /of~ction of the Court. Thus, proof is the
issue by proper legal_ meai:is to
result,of-e~ide1!ce while ev1de~c h
!~:
:a~:dium of proof. Just as brid<s and mortal
house of is built, in the same way, the
'testimony'. It includes all statements, verbal, written, judicial or extra-
ju_d icial so far as they are possessed of probative force. Real evidence, on the
other hand., is that which is directly addressed to the sense of the Court. It is
are the materials out of w~1c a f1 ..
evidence comprises the matenal for proo . . . . . . the evidence supplied by material object, other than documents, produced for
. he standard of proof m civil and the inspection of the Court. Thus, the production of a weapon by which murder

J:;:~r
- There is a marked difference as to t reponderance of probability, due was committed is real evidence while the statement of an eye-witness is
criminal cases. In the former, a ;nere is sufficient basis of decision. But in personal evidence. - ·
reference being ~ad to the b::.e~ o of proof is needed before a person _is
criminal proceedings a muc erd ii y lie on either parties whereas m
convicted. In civil cases, _the :r en m~tion to prove the guilt of the accused
Jeremy Bentham has used the term 'real evidence' in a wider sense so as to
include, "all evidence of which any object belonging to the class of things as the
criminal cases, the burden is on t e prose . source, persons being included in respect of such properties as belong to them in
common with thing." Considered from this stand point, real evidence may
beyond doubt. either be immediate-where the material object itself is produced before the
Court, or it may be reported, where its existence is reported by some witness.
Kl. nds of Evidence ny kinds. These may briefly
b e c1ass1·£·ie d as
Evidence may be Of ma Personal evidence is that which is afforded by human agency. For example,
A is charged with the murder of B:Witnesses come and depose before the Court
follows : -_ . . . 1 evidence.-In the first place, evidence may
. 1. Judicial and Extra-1ud1c1a . d .. l Judicial evidence consists of all to the effect that they saw A murdering B. Here the evidence reaches the Court
. d" . 1 it may be extra-JU 1c1a . l d through human agency and, therefore, it is personal evidence.
either be JU ioa or . tu 11 brought to the personal know e ge
those evidential facts which are ac ~ dY. . 1 evidence on the other hand, is The real evidence which is addressed directly to the sense of the Court is
. f the Court Extra-JU icia , h l
and observation o . · der ·udicial congnizance, but nevert e ess considered to be most convincing and satisfactory for deciding the guilt of the
1r
that which does not com~ direr ~ t jen evidence and the fact requiring
constitutes an intermediate f 11:'-udic~a~evidence are statements of witnesses
accused. For instance, where A is charged with murder, the seriousness of
injuries on the person of the victim may well be appreciated by the Court seeing
proof. Thus, the examples o J t roduced in the Court and other . the deceased person. The weapons used or the clothes with blood stains from
in the Court, all r~levant -docume~ ~ ~he course of judicial proceedings. A which inference may be drawn may be produced before the trial Court. A Court
material things examined by the C~fur md to a court itself but if it is made may inspect _the locality of the offence to appreciate the evidence. If C, D, and
• d. · 1 ·dence 1 ma e ll
confession is a JU tcia evi f C rt by some other evidence, then it sha E depose that they saw A murdering Bin front of their house and the accused
somewhere else and ~roved be ~r~ a l ou ori inal document is a judicial contends that the alleged place of murder is not visible from the houses of C, D
be extra-judicial evi~ence. Sun~a~
evidence if produced m a Court u 1 is
Y;. a:xtra~udicial if known to the Court and E, the Court may make a local inspection and thereby know for itself if the
witnesses from their houses could actually see the murder being committed.
through a copy. - - . h f f lbis is real evidence.
.. . dicial roceeding some proof m t e orm o
It mus~ be stat~d that t1:'° every ~~ed bur it is not so in case of extra-judicial 5. Primary and Secondary Evidence.-Primary evidence is the testimony of
judicial evidence is essentially ne . t Extra-judicial evidence serves merely a witness who perceived a fact with his own sense or the original document or
evidence, that is, it may or may_ not ex1s . 2 thing when produced in Court. It is also called original evidence. Primary
as an intermediate link in a cham of proof. . . . evidence is considered as the best evidence and so long as primary evidence is
. - ubstantive Evidence.-Substanttve evidence _is available, . no other evidence shall be admissible_. The original copy of a
2. Substantive and Non: 1 d for the decision of a case. A non-
that on which reliance can e p hace d . that which either c Jrroborates the document to prove its contents is an illustration of primary evidence.
. ev1·aence, on the other an·t , 1s edibility or which contrad.1ct s a
substantive Secondary evidence is inferior to primary evidence. The Court shall not
substantive evidence and en~ei:1ces 1 s er . allow secondary evidence when primary evidence is available. The Court may
substantive evidence to discredit it. admit secondary evidence in exceptional cases when it is proved that primary
. . d nee -Positive evidence tends to prove the
3. Positive and Negative Ev1 e t: vidence non-existence of a fact is evidence is not available for some sound valid reason. A copy of a document or
existence of a fact whereas by a nega ive e ,
1. Rahim Khan v. Khursheed, AIR 1957 SC 290 Para 40.
Phvol Chand Garg v . State of M.P., AIR 1990 MP 135 (137).
~- Salmond on Jurisprudence, (12th ed.) P· 465 ·
 THE.LAW OF PROCEDURE 583
JURISPRUDENCE AND LEGAL ri-rnoRY ··
. 582
l)
The
od law
ti
of evidence
f ..d. is conceme
d . d. . m.ainly .with two· ma1·or issues,
· namely.
oral testimony of its contents are examples of secondarf evidence. Again~ a ( pr .uc . on o .evi ence, an (2) its probative force. · · · '
statement by A that he saw B committing a murder of C is primary and direct
evidence but A's statement that D told him that B m!-lrdered C, is a secondary Production of·Evidence
evidence. The copies of an original document or a photo-copy or extracts of · ~any_ rules ha~e been lai~ clown: for the.• production of evidence and the
documents etc. are s~ondary evidence. • . . . . · exam1~ation_ of witnesses. ~is part of evidence deals with the process of
adduang evidence and not with the effect of it. It is concerned WI.th th
6. Direct and Circumstantial Evidence.-Direct evidence is testimony · h" h h · e manner
relating to the principaLact. All other evidence is circumstantial. It is m ~ 1c.· t e w1~esses are to ~e examined and cross-examined and not the
weight to l?e attributed to their testimony. · Various kinds of evidence are
evidence of a fact actually in issue or evidence ofa fact perceived by a witness
a~duced bef?r~ the Court but the Judge is not bound to accept all of them with a ·
with his own serise. view of ~v01dmg unnecessary .expense, delay and vexation. That apart, there
Circumstantial evidence, on the other hand, relates to a series of other are certain ~ategories_ of witnesses who cannot be forced to disclose facts which
fads than the fact-in-issue but .which are closely connected with that fact in are otherwise matenal .to the point in issue in the interest of public policy
such a way that it Jeads to some definite and irresistible conclusion. For These excluded categories arel : - . ·
example, if /'\, is caught with .blopd-:stained dagger and clothes while coming
out of B's room, this is conclusive circumstantial evidence though no one ~i) Judges and Magistrates.-No Judge or magistrate shall, except upon the
actually saw him murdering B. special or~er of some_Court to which he is -subordinate, be compell~d to answer
Direct and circumstantial evidence are also respectively known as positive any quesho~ as• to his own conduct in Court or anything which came to his
evidence and presumptive evidence. Circumstantial evidence is always know_ledge m
Court as a magistrate in his official capacity, but he may be
indirect evidence. 1 Law requires that circumstantial evidence must always be ex~i~ed as to other matters which occured in his presence whilst he was so
acting · ·
used with caution.
Circumstantial evidence is not to be confused· with hearsay or secondary . It _must, h?wever, be .stated· that· the privilege given by this provision of
evidence. The circumstantial evidence is always direct and primary, i.e., the law (i.e., Section 121) is the privilege of the witness and if any Jud
facts from which the existence of the fact-in-issue to be inferred must be proved Magistrate wai~es
. . ·1_ege, none else can raise an, objection to his being
th.is pnv1 ge or
by direct evidence. present ~s a witness. Thus If a Magistrate is s~pposed to depose about his
In · case of circumstantial evidence all the· circumstances should be co~duct m ~esJ?ect of a case and he chooses to appear and depose, no one else can
established by independent evidence and they should (orm a complete chain, raise an ob1ection to his deposition.3 · ·
bringing home the guilt. of the accused wi~hout giving any room to any (ii) Com~unications during marriage.-No married person shall be
hypothesis. compelled to disclose any communication made to him during marriage by an
Conviction of the accused can be based on circumstantial evidence provided person t<;> who~ he or ~he is or has been .m arried except in suits between marrie~
chain of evidences is complete and leaves no reasonable ground for a conclusion per~ons m which marned person is prosecuted for having committed any offence
consistent with the innocence of the accused and it points to the fact 2that against the other.4 ·
within all human probability, the act must have been done by the accused:
. . The~e is, however, one exception to this general rule. When there is a
7. Original and Hearsay Evidence.-Original evidence is that which
c~vil smt . between the husband and the wife, the communication between
possesses an independent probative force of its own. It is that evidence which a t e~ can be proved by them. Again, if there is an offence committed by them
witness states himself to have seen or heard by his own sense. Hearsay
against ~me_ another, the other spouse will be allowed to disclose any
evidence, on the other hand, is not actually perceived by a witness with his commumcation made by a wife to herhusband or by husband to his wife as the
01,,vn sense, but proved by him to have been stated by another person. In simple· case may be.5 '
words, hearsay evidence is mere1y reporting by a person not what he actually
heard or saw himself but what he was told by some third person. Ordinarily, . (iii) Aff~irs of the State.-No person shall be permitted to give any
hea rsay evidence is not admissible and the courts reject it subject to ·certain evidence denved from unpublished official records relating to any affairs of
excephenz,l c21~.;cs. Hearsay evid•!nce is also called derivative evidence or
1. Sect~ons 121 to 126 of the Indian Evidence Act, 1872.
transrnitted evidence. Hearsay evid,~nce is not based on personal knowle.d ge of 2. Section 121.
the witness but on what he has heard from others. 3. Emperorv. Chidan, ILR3 All. 573.
-· ----··-·-·- -·· - - - --------------- - --- - 4. Section 122.
5. Narendra Nath Mukherjee v. State, AIR 1951 Cal 140.
 584 JURISPRUDENCE AND LEGAL THEORY .
State except with the permission pf the officer at the head of the department
concerned, who shall give or withhold such permission as he thinks. fit.1
In order to claim privilege of affairs of the State, the following conditions
must be present :
(1) The document must be unpublished official ~ecord;
(2) It should relate to affairs of the state; and
(3) It can be admitted in evidence with the permission if the Head of
department concemed.2
(iv) Official Communications.-No public officer shall be compelled to
disclose communications made to him in official confidence when he considers
that the public interest would be adversely affected by such disclosure. 3
I It is for the public officer to decide whether public interest will suffer in
case official communication is disclosed. This in other words, means that
privilege is to be claimed by the public officer if he considers it necessary in the
.,
.I,:· •,_•:·!
:
public interest. The Court, however, may accept or refuse the privilege at its
.! discretion. Thus is Debashish Sahu v. Nabeen Chandra Sahu, 4 in a civil suit
the party sought production to Income Tax returns of the opposite party. Court
refused to summon document considering it to be a privileged document. Held,
the Court was not justified in doing so because it was open to the Commissionor
of Income Tax to claim the privilege when document is summoned. Then only
Court may decide whether grant privilege or not.
(v) Information as to Crime.-No magistrate or police officer shall be
compelled to say wherefrom he got any information as to the commission of any
offence and no revenue officer shall be compelled to say wherefrom he got any
information as to the commission of any offence against the public revenue. 5
(vi) Professional Communications.-No advocate or pleader shall at any
time be permitted, unless with his client's express consent, to disclose any
communication made to him in the course and for the purpose of his employment
in such capacity or disclose the contents or condition of any document with
which he has become acquainted in the course of his professional employment.
Besides these exclusions, the proviso to Section 132 of the Indian Evidence
Act also provides that a witness shall not be compelled to answer any question
as to any matter relevant to the matter in issue which shall subject him to any
arrest or prosecution, or be proved against him in any criminal proceeding,
except a prosecution for giving false evidence by such answer. Bentham,
however, thinks that such a proviso is not justified in the interest of fair
investigation and trial. He firmly believes that conviction of offenders is not
1. Section 123.
2. Raj Narayan v. Indira Gandhi, AIR 1974 All 324.
3. Section 124.
4. AIR 2002 Ori. 211.
5. Section 125.
TIIE LAW OF PROCEDURE -585
possible without the use of force and such a rule prohibits use of force and
therefore, extends unwanted protection to the accused persons.
Presumptions
A fact assumed to be true under the law is called presumption. For example,
a criminal is presumed to be it.µ1ocent until her /his guilt is proved beyond
doubt. ·
Presumption are used to relieve a party from having to actually prove the
truth of the fact being presumed. Once a presumption is relied by one party, the
other party is normally allowed to offer evidence to disprove or rebut the
presumption.
- Presumptions are either-(1) Legal and artificial, or (2) N~tural.
Legal and artificial presumptions are such as derived from the law. They
operate uniformly without applying the process of reasoning on whom they are
founded to the circumstance of a particular case. 1 It consists of facts which have
such probative force that they cannot be contradicted. When one fact is
declared by law to be conclusive proof of another, the Court shall, on proof of
one fact, regard the other as proved, and no evidence to disprove it shall be
admissible. Thus, conclusive presumptions are inferences which must be drawn
and cannot be allowed to be overruled by any evidence howsoever strong it may
be. For example, Section 82 of IPC provides that a child below the age of seven
years is doli incapex, that is, incapable of having guilty intention. It is a
conclusive presumption of law which cannot be endowed with any discretion.
Likewise, Section 112 of the Evidence Act lays down that if a person is born
during a valid wedlock between his mother and any man, within 280 days after
its dissolution, the mother remaining unmarried, it shall be conclusive proof of
the legitimacy of the child. The conclusive presumptions are also called
presumptio juris and are irrebuttable.
A rebuttable presumption, on the other hand, is one where the law requires
the courts to draw an inference even though there is no sufficient evidence to
support it. In other words, the Courts will presume something, but at the same
time allow the opposite party to rebut or contradict such presumption. For
instance, a negotiable instrument is presumed to have been given for value,
unless contrary is proved. So also, a man not heard of for seven years by those
who would naturally have heard of him if he had been alive, is presumed to be
dead. This presumption is, however, rebuttable by contrary proof. Likewise,
the Court may presume that a man who is in possession of stolen goods soon
after the theft, is either the thief or has received the goods knowing it to be
stolen, unless he can reasonably account for his possession. In other words,
unlike conclusive proof, the Court will permit contrary evidence to disprove a
fact.
Presumption of Innocenc~ of Accused.-In criminal cases, the presumption is
that the accused is innocent until contrary is established. It is often said that
1. Section 4.
 586
_JURISPRUDENCE AND LEGAL TIIEORY
TiiE LAW OF. PROCEDURE 587
it is better that ten guilty .

should suffer. A mere su . ~~n stould escap~ than that one innocent man
. evidence. I . sp1c1on owever, strong .cannot take . the -place of contained in the definitio~ of the t~l'D\s "proved' and 'disproved•~ The test
Whether a fact-in-issue is proyed or· disproved depends on whether a prudent
Probative force of Evidence -Whe 11 . mari after considering the matters .~fore him. would deem it proved .or not.
probative force is to be evaluated It d n a the ev1~ence has been produced, its Obviously, in this process it is difficult to bind the court with any particular
Judge .<Court) to evaluate th . .b t· oe~ not permit personal discretion of. the rule. The only thing. that may birid . the Court . is the dictates of its own
I h ave been incorporated ef pro a 1ve 1orce of the evide · S .
rues th" nee. ome inflexible conscience. It is ma.inly for this reason that when the Court is called upon to
Courts are to follow in ~rder ~~ d ts puI"J?ose ~der !he Evidence Act which the convict a person having conunitted any offence, it has to satisfy itself that the
produced before them. etennme ev1denhary value of the evidence possibility of innocence is completely ruled out.1 It is indeed a ve_ry arduous
task for the courts and more often than not, this results into acquittal ·o f accused
(i) Exclusive Evidence -The
manner in which certain : ~1es as to exclusive evidence lays down the person.
1
other kind of eviden~e i/~~;:c;d ~;7:p~ct of c~rt~in fact should be given, any Yet another rule which generally earns benefit of doubt to the accused
will can be proved on) b th t . g madm1ss1ble. Thus the execution of a person is the rule that a criminalcharge must be established beyond reasonable
if .the attesting witness~s
valid reason then the st .
le
d:a~s~;o;}'.' of at!east o~e attesting2 witness. But
, ft he~r testimony is not available for some
doubt. 2 It is because of this rule that the defence finds it rather easy to create
doubt which the courts treat sufficient ·to acquit the accused .. Some of the
testimony. of the will is rmgetncdy o t . is rule is not insisted upon and the circumstances which are considerd sufficient to raise reasonable doubt in the
• accep e or re1ected on its •
w~itten contract can be proved b th own _me~its. Likewise, a prosecution story and eamihg acquittal to an ·acci.tsed persons are-feeling that
evidence of that contract. y e contract-deed which is the exclusive it would be hazardous to convict the accused,3 group rivalries and previous
enmity, 4 purpose of preparing false memos not established,5 medical evidence
(ii) Insufficient lvfdence -Wh . . being balanced on both sides,6 absence of names from the FIR,7 interval·between
evidence but the evid.en dd ;r~ the law prescribes a certain amount of
evidence is considered ceff~ . uce is not upto the requisite standard the
111·
..
death and recovery of body8 ·etc. This principle has been applied in such a
. . . su 1c1ent and the Courts t II ' divergent manner that it m~y even be possible for a Judge to give ·benefit of
sueh evidence. For instance a r b . are no ca ed upon to act on doubt in almost every case.
Therefore, if a probate is attest~ ~ ate reqmres _attestation by two witneses.
evidence to be taken coc,-n. f b y honly one witness, it shall be insufficient Commenting on this malady, Justice Guiab Gupta of the High Court of
c, Izance O 0
y t e Court.
Madhya Pradesh (as he then was) observed that benefit of doubt is not a
(iii) Fae.ts which are not: "d formula to be used for shirking the task of a Magistrate. He further stated, "so ·
ev1 ence -There are ce t . ,
possess any probative force at II Th C. . r am racts which do not long as · there is volume of evidence, it is the duty of the Magistrate to apply
facts. For example in . .a i
e ou~s do not take any cognizance of such
his mind to those facts, analyse the evidence to find out whether the
accused is not rele~ant cn~ma p~;ceedmgs previous bad character of the
prosecution has af.firmatively cmd satisfactorily proved its case, making use of
character, in which cas; iutnb ess ev1 elnce ha3s been given that he has a good
• ecomes re evant Howe . its defence evidence for the purpose of testing whether the prosecution case can
is re1evant as evidence of b d h . . ver, a previous conviction be true."9 Giving a note of warning, the learned Judge further observed.
evidence and it is ordinarily a I cd adrabcterh. Similarly, hearsay evidence is no
· exc u e y t e courts. · "Fanatical devotion to tJ:ie rule of benefit of doubt and general unmerited
Some Suggestions acquittals based on spasmodic $entiments may lead to the danger of resorting to
retribution by the community. That would mean self-redress or lynch-law
Undoubtedly, the rules of evidence . which would wreck the peace of the society and bring the criminal law itself
and hence they are more I h prescribe the best course to get at truth into contempt."10
is true with the Indian E o:d ess t e same throughout the civilised world. This
, d v1 ence Act as well It ado t th 1. Vithal Das v, Rup Grand & others, AIR 1967 Orissa 188.
pru ei:it man' as an appropriate standard . . p s e requirements of a
~ame hme, allows full effect to be . by w_h1ch to measure proof and at the 2. lnder Singh v. Delhi Administration, AIR 1978 SC 1091.
3. AIR 1970SC 1191.
improbabilities It howev d given to circumstances or probabilities or
• · ' · er, oes not require abs I t • 4 4. · Baldeo Singh and otlzers v. State of Bihar, AIR 1972 SC 264.
smg 1c ruJe or evidence ap lie bl . b . . o u e certainty. There is one 5. Bhagwandas Keslrwani v. State of Rajasthan, AIR 1974 SC 1410.
---_--·- -~--------~- p a e to oth c1vtl and criminal trials and that is 6. Stiile of Maharashtra v. Artnappa Bandu Kavatage, AIR 1979 SC 1410.
l. ::,arvan Sinoh v St I 7. l uwar Sin git v. State of Madhya Pradesh, AlR 1981 SC 373 .
•~ . · a e of Pzmjnb, AIR 1957 SC 637.
-· The law requires th"'1 w·u 8. State oflvialiam:;htra v. Anap7'a Bandhu Kavatage, AIR 1979 SC 1410.
.3.
-4. -~
d- .'"
,S t•ctiP•i c:4 E . a
•· · ··' · ,-v1enc\.··Act.
I must be attested by two ,..-itnes,es
· ·--··· 9. An article entitled 'Social Justice Perspecti?.1e of Criminal Justice' by Hon'ble Justice Guiab
Aizibnmn v. State, All, 1953 All 493. Gupta of the High Court of Madhya Pradesh published in Central In dian law Quarterly,
Vcl. I (1987) pp. 15-17.
10. Ibid.
588 JURISPRUDENCE AND LEGAL THEORY

The need of the time therefore, is to restrqcture the law, particlularly the
law of procedure and evidence so that it serves the cause of social justice. It
hardly .needs to be stated that law cannot command respect if it is divorced
from justice and realities of life. The law of evidence being more. than a century
old,l it is unable to lead to just results in many situations. ht such cases judicial
discretion may prove to be an effective weapon in the h~ds of Judges for
rendering justice possible by weighing the rules of law in t~eir proper
perspective. The magistracy should ensure that the judicial process.is not only.
cheap and speedy but it i~ also pragmatic, modem and rational.
It must also be stated that the emergence of internet in the modem age has
effected almost all the aspects of daily human life. -Although it has brought
with it a plethora of positive effects, but one cannot overlook its negative sides
as evidenced from the ever-increasing cyber crimes and ·illegal activities on the
internet and cyber space. The new technology has provided easy access to
perpetrators of cyber crimes without being present at the scene of crime thus
providing them scope to escape and avoid detection or apprehension. Though
the Information Technology Act, 2000 has introduced certain consequential
amendments in the I.P.C., law of evidence etc. but they are mostly related to
providing statutory rec(?gnition to 'electronic record' like any other 'record' or
PART-V
'document'for the purposes of I.P.C. or Evidence Act. ·
The nature and mode of perpetration of cyber crimes being radically
different from those of conventional crimes, the detection of offenders and
.RECENT TRENDS.
investigation/ analysis of the related evidence poses a real problem due t<?
volatile nature of such evidence. The distributed network, technical IN
complexity, scattered digital evidence etc. make it easy for the perpetrator to
conceal his identity and. escape detection. The development of cyber and
computer forensics, which involves new techniques of collection, preservation, INDIAN JURISPRUDENCE
analysis and presentation of computer related evidence needs a fresh modified
approach to the existing law of evidence to make it more suited to these new
developments. Computer evidence can be useful in criminal cases, civil disputes
resolution and probe into human rights violation cases etc. The law of evidence
should be so .improvised that a technically savvy offend~r is not allowed to
enter into the victim's systems network leaving no traces of his presence.

□□□

1. The Indian Evidence Act was enacted in 1872.

I ( 589)
 26
RECENT T~ENDS IN INDIAN JURISPRUD_ENCE
The history of mankind reveals that human wisdom has devised different
methods and .means to meet the structural changes in the social system which
take place with the advancement of knowledge, culture and civilization. Law
has always been considered as one of the important instruments of affecting
social change. In a developing nation like India, there has been widespread
concern of law as a tool for bringing about homogenity. in the hetrogeneous
population having socio-cultural diversities. Though there are several devices
to bring about a change and reformation in society, but reformation through
law is perhaps one of .the most effective and safest methods to achieve this
end.
The present cns1s in the Indian legal system is due to its complete
dependence on the colonial jurisprudence. India has inherited, as a hangover of
the British rule, theory and practice of British legal system which has cr.:?ated
conflict between old laws and modem notions of justice.I It is true that a system
which has such a long influence of over two centuries cannot be scrapped by a
single stroke. There are ce_rtain age-old concepts which are certainly outmoded
and outdated and which need to be replaced.

Inter-relation Between Law and Society

The intimate relationship between law and society inspired the noted
sociological jurist Ehrlich to enunciate his sociological theory for the study of
law. He emphasised that law depends on popular acceptance which has a
great creative force. 2 He supported dynamic nature of law which keeps pace
with the advance of time and needs of the society. He firmly believed that
law consists not of proposition alone, but of legal institutions which cherish in
the society.
Other jurists and 'egal reformers notably Llewellyn, Roscoe Pound, Max
Weber etc. also supported the contention that law can be extensively used as an
instrument of social change since it is an effective method of social control.
Llewellyn particularly believed that law cannot be developed in isolation
without taking into consideration its relationship with other disciplines, such
as sociology, history, politics, economics, psychology, philosophy and so on. 3 In
United States and other advanced countries law is being extensively used as an
instrument of social change in the wake of twenty-first century pragmatism and
1. Justice Krishna Iyer V .R. : Law India : Some Contemporary Challenges, (1976) p. 36.
2. Quoted from Paton's Text Book of Jurisprudence p. 28.
3. Llewellyn: Some Realism About Realism, 44 Har. LR (1931) 1222.
(591)
592 JURISPRUDENCE AND LEGAL THEORY
I
rationalised thinking. The process has begun in India ever since its
independence but the progress is rather slow perhaps because of the vast gap
between the law as it exists and as it ought to be implemented.
Role of Law and Legislation
It has been generally accepted that legislation is one of the safest modes of
regulating activities and standards of conduct of human life in a given society.
There are, however, some common socially accepted norms to regulate inter-
personal volitions, such as sharing of food and other essential commodities and
material resources, sex access etc., which. differ in different groups of the
society and make it hetrogeneous. For instance, the .norms of nomadic tribes are
radically different from those living in highly urbanised areas who have a
much wider range of activities.
In the Indian context, at present there is a wide gap between the poor and
the rich, the socially neglected and socially dominating clas.s which makes it
imperative for the State to provide adequate protection to .:weaker sections of
the society, preve~t exploitation, corruption and malpractices and ensure
equitable distribution of wealth and material resources to subserve the common
good.1 These ideals of the Indian Constitution2 are likely to lose their edge if
they are not backed by proper legislation. The new challenges before the nation.
because of the socio-economic and technological changes can be effectively met
either by introducing new laws3 or amEnding4 the existing laws to meet the
exisgencies of time. Land-legislation,5 co-operative laws, licensing and tax
laws, Debt. Relief Act, labour welfare legislation etc. which provided
protection and security to poor masses should always be subjected to periodical
review by experts committees to suggest measures for making them more
effective and welfare-oriented.
The Indian society at present seems to be at cross-roads as the country is
confronted with many complex problems,such as.poverty, unemployment, social
and economic backwardness, communalism, political vandc.lism, corruption,
terrorism and so on. The preponderence of selfish and individualistic approach
has gone so deep in the Indian life that it has shattered our national character.
Considered from this standpoint, the role of law and legislation has become all
the more significant to tackle these burning issues in order to maintain social
equilibrium by reconciling various conflicting interests of the members of the
Indian society.
1. Article 39 (b) of the Constitution of India.
2. Articles 36 to 51 containing Directive Principles of State policy.
3. A Central Legislation on Reservation for Women in Central and State Legislatives; Uniform
Civil Code etc. is much needed in India.
4. For instance, the Dowry Prohibition (Amendment) Act, 1986; the Criminal Law
(Amendment) Act, 1983, the Narcotic Drugs & Psychotropic Substances (Amendment) Act,
1988 etc. the First and the Second Companies (Amendment) Acts of 2002 have introduced
drastic changes so as to make the corporate law more effective. The Par.chayati Raj
Amendment Act, 1993 and Panchayats (Extension to Scheduled Areas) Act, 1996 have
already been enacted. The Consumer Protection (Amendment) Act, 1993 has enlarged the
scope of the consumer law considerably.
5. The Constitution, 1st, 4th, 17th, 25th, 39th and 42nd Amendment Acts.
RECENT TRENDS IN INDIAN JURISPRUDENCE 593
The law as a socio-legal mecKanism, is a powerful instrument of achieving
welfare of the people. But it can also become an instrument of oppression and
tyranny if not properly applied and i~plemented. For example, law has
abolished untou·chability,1 bonded labour,2 dowry} child marriage4 Pre-natal
sex determination to eliminate girl child,5 etc. but how many have really been
benefited by these idealistic legislations is a question which needs serious
attention. The laws ·have, by and large, remained ineffective to yield the
desired results. There is, no doubt, that law plays a crucial role in formulating
social policies and uprooting social evils, but to be effective, it must have the
support of public opinion.
The role of law in a civilised society may either be direct or indirect. To
illustrate, laws relating to compulsory primary education6 help indirectly in
the progress of the society in the long run while the law relating to
prohibition 7 has a direct impact upon the social life and morality of the
people. Likewise, the laws relating to prote~tion of environmental pollution8
hav :? a direct bearing upon public health. .On the other hand, licensing laws
indirectly affect the economy of the country.
No legislation can ever succeed unless it has the support of the people. The
legislators who are the representatives of the people must take note of the
factors which affect social change.
The three organs of the Government, namely, the Legislature, the
Executive and the Judiciary should be independent of each other but they
should work in perfect harmony so as to ensure that the laws are framed,
implemented and interpreted for the welfare of the people without
jeopardising the cherished values of democracy. The function of law is to
eliminate conflicts and promote co-operation and understanding among the
people. The purpose of law should be to regulate the relations between the
State and its citizens for the welfare of both.
The Indian Constitution-A Social Document
Law is an effective tool to translate the aspirations of common man into
reality. Its significance and sacredness should be preserved by all those who
make it and also by those for whom.it is made. The Indian Constitution itselt is
a great social document. It underlines the ideals of supremacy of law; social,
economic and political justice, secularism and democracy. The fundamental
rights guaranteed to Indian citizens constitute the basis for a free and
democratic society. They are fundamental because they are transcendental and
1. The Protection of Civil Rights Act, 1955.
2. The Bonded Labour Sysh,m (Abolition) Act, 1976.
3. The Dowry Prohibition (Amendment) Act, 1984.
4. The Child Marriage Restraint (Amendment) Act, 1978.
5. Pre-Natal Diagnostic Techniques Act, 1994.
6. Article 45.
7. Article 47.
8. The Water (Prevention & Control of Pollution) Act, 1974, the Air (Prevention & Control of
Pollution) Act, 1981 and the Environment (Protection) Act, 1986 etc.: See also Articles 48--A
and 51-A of the Constitution.
594 JURISPRUDENCE AND LEGAL THEORY
are protected and guaranteed against any violation either by legislature,
executive, State etc. The Supreme Court has recognised the paramounty of
fundamental rights in a number of cases.1
The directive principles contained in Part IV, on the other hand, provide
guidelines for the State to initiate measures to ensure welfare of the
community. The physical integrity of life and. liberty2 forms the most
important aspect of individual freedom. It has been well safeguarded in the ·
Constitution and liberally interpreted3 by law courts. The doctrine of rule of
law enshrined in the Indian Constitution seeks to balance individual rights
with legal responsibility. It ensures equality before law and equal protection of
law to all individuals and excludes the possibility of automatic and
totalitarian exercise of power by the State.
It must, however, be reiterated that social reforms through law in a vast
country like India cannot be ushered by merely designing the Acts and statutes.
The law-making process should synchronise with law in action. The success of
law, by and large, depends on pre-legislative mobilisation of public opinion.
Experier,ce has shown that there is always a gap between the response
expected by law-makers and actual response from the society. The legislation
of Panchayati Raj, Anti-defection law, reservation policy, women's property
rights are some of the areas where the law has miserably failed to yield the
expected response from the community. This gap can, however, be narrowed
down to a considerable extent through conscious legislation taking realities of
Indian life into consideration.
Mr. Justice Krishna Iyer the former Judge of the Supreme Court of India
rightly observed, "we cannot regain our past glory unless we realise the
importance of morality in our present legal system." Just as morality fosters and
strengthens the soul in the same way morality in law provides greater force to
it and commands voluntary obedience from the people. Even in ancient Hindu
law great importance was given to Sadachar4 which meant 'good conduct'. It is
rather unfortunate that the modem law bothers little about the moral or
ethical values of life. It is meticulously confined to rights and legal obligations
and is silent about moral obligations or improprieties. To take a simple
illustration, a debt barred by time is irrecoverable under the law but such a law
is clearly against morality. Again the Special Bearer Bonds (Immuni~ies &
Exemptions) Act, 1981 which appeared like a reward for the tax-evaders by
granting immunities and exemptions under the Income Tax Act, 1961, Wealth
Tax Act, 1957 and the Gift Tax Act, 1958, while burdening the honest tax-payer
with tax-liabilities under these Act, was against all norms of morality. The
1. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461; Mane/ca Gandhi v. Union of India,
AIR 1978 SC; 759;Unni Krishnan v. State of A.P., AIR 1993 SC 2178 etc.
2. Articles 21 and 22.
3. In Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC: 545, the Supreme Court held
that right to life includes right to iivelihood as well; See also D .K. Basu v. State of West
Bangal, (1997) 1 SCC 426.
4. Manu said sadachara aspect of Dharma corresponds to law, which in modem sense means
a code of conduct that modulates human relations.
RECENT TRENDS IN INDIAN JURISPRUDENCE 595
above legislation was challenged •in the so called Bearer Bond Case. I In this
case the petitioners contended that morality is the foundation of laws and no
law is vali~ if ·it is manifestly lacking in moral foundation. The Act which
confers legal sanctity .to black money and rewards tax-evaders and black
marketeers is totally devoid of all standards of morality and
vitiated by gross
immorality and is manifestly against public interest. However, the Supreme
Court, by majority2 judgment held the Act valid because it helped to unearth
bulk of black money which would have otherwise remained secreted and hence
the enactment was in the interest of national economy. It is submitted that this
decision completely overlooked the reasonableness of the impugned legislation
on ethical grounds.
It ·w ould be pertinent to refer to yet another case, namely, A.R. Antuley v.
Union of India,3 which shows how corruption got bogged down in appeals, cross
appeals, petitions and reviews. The entire case lingered on for eight long years
from 9th June, 1980 to 29th April, 1988 wherein the "resourceful and
nanipulative litigant resorted to the strategy of delay and repetitious
applications to courts raising hyper-technical issues." Commenting on this case,
Dr. Upendra Baxi says that although he did not intend to "attribute any
improper motive to Supreme Court Judges", he would surmise the "political
complexion of the case could not have been distant from the judicial mind." The
case amply demonstrates how a resourceful litigant can frustrate a ·litigation
for corruption against him and how he can benefit from rigid technicalities of
the court procedure.
The medieval naturalist also strongly supported the ethical values of law
and conferred upon the legal system an inherent power to reject immoral rules.
Even modem naturalists like Lon Fuller maintains that "law .contains its own
implicit morality." He further continued, "law represents order simpliciter,
good order is law that corresponds to demands of justice or morality on men's
notion of what ought to be."4
Even positivists like Bentham and Kelson have also conceded that the
administration of law ought morally to embody certain principles of fairplay,
impartiality and justice so that like cases are treated alike.
Lord Devlin also emphasised the need for morality in the administration
of justice. He observed, "public morality provides a firm structure to any human
society and that the law, especially the criminal law, must regard it as its
primary function to maintain this public morality. Conduct which arouses a
widespread feeling of reprobation, a mixture of intolerance, indignation and
disgust deserve to be suppressed by la":"' courts." 5 This view of Lord Delvin
1. R. K. Garg v. Union of India, AIR 1981 SC 2138.
2. Majority judgment per Bhagwati, J., (as he then was) Chandrachud C.J., Murtaza Fazal Ali
and A.N. Sen, JJ. concurring while Gupta, J., dissenting.
3. (1988) 2 sec 602.
4. Lon Fuller: The Law in Quest of itself, (1940) p. 12.
5. Lord Devlin severally criticised the Wolfenden Committee Report on Prostitution and
Homosexuality in England in his. "The. Enforcement of Morals" (Essays 6 and 7) 1965.
 597
RECENT TRENDS IN·INDIAN JURISPRUDENCE
596 · JURISPRUDENCE AND LEGAL THEORY
society. Nowth e pu.bl"IC interest
. 1·Itigahon
. . I era1·Ise d the locus standi
h. as 1·b rule
I

received support from the House of Lords in the Ladies Directory Case 1
wherein Lord Simonds held that a conspiracy to corrupt" public morals ·was a
common law misdemeanour in·England.
In India, the Supreme Court has upheld restrictions on immoral or pseudo-
immoral activities on the ground of reasonableness resorting to provisions of
Articles 19(2) and (4) of the Constitution which permit restriction on
fundamental rights of speech and expression and right to form association etc.
on the ground of morality. This clearly indicates that the framers of the Indian
Constitution did not completely ignore moral element in law.
The Courts, however, are expected to preserve the ethical values of law by
judicial intervention whenever the laws framed by legislators are vitiated by
immorality. The moral fabric of the Indian Society can be preserved if the
judiciary acts as an effective check on legislature and executive when they
attempt to outrage public morals by their nefarious activities.
Independence of Judiciary
Independence of judiciary is one of the bask structures of the Constitution.
The basic structures being inarticulate, they have to be interpreted with
reference to the constitutional mandate. Independence of judiciary or Judges
does not relieve the Court of enforcing the policies of the Constitution.
Integrity and character of the Judges being the backbone of the judiciary, judges
must be independent, impartial and fearless in dispensation of justice.
Independence of judges means they should be free from political, social or
economic influences. Fearlessness implies that they should not be afraid of the
consequence of their judicial decisions, and they should not be susceptible to any
temptation or intimidation. They should keep themselves away from the
temptation of populism or adventurism. Such tendencies may be prevented
through judicial self-restraint. Above all, the monster of corruption which has
already polluted the Indian democracy, should not be allowed to enter
judiciary, else people's confidence in the independence of judiciary is bound to
be shattered. Judiciary must continuously strive to sustain its independence
notwithstanding pressure from public or political circles.
Judicial Activism
Judicial activism is a dynamic process of judicial outlook in a changing
society. According ·to Black's Law Dictionary-Judicial activitism is a judicial
philosophy which motivates Judges to depart from the traditional precedents
in favour of progressive and new social policies.
. h d . t f th dressa 1 o f socia
. 1
to such an extent th at It as opene new VIS as or e re u h judicial
problems. It must be stated that th~ str~gtegy evol~e~ t~ro, Yn western
activism has come to be known as Pubhc Interest Lihgation ·az Action
countries though Dr. Upendra Baxi1 prefers to call it as . s~c~efore the
Litigation for the reason that the . problems which are brough m of social
Courts under public interest litigation relate to a much wider spec~ problems
justice needing extra-ordinary r~m~dy to ~?-o ~em. ~ome of \ 0 convicted
effectively tackled through pubhc interest hhgatton wnts relate · 4 pavement
prisoners and ~dertrials,2 bonde~ labourers,3 un?rganised wo~~::s~n womens
dwellers,5 environmental pollution,6 personal hberty,7 atroc1t1 t activists
and inhuman treatment. o f c h"ld 1 ren9 etc. Th e publ"1c in. . teres
. tion' writs
- demand extra-ordinary remedies through 'Public Interest Litlga arial court
without seeking recourse to (:Onventional lawyering or the advers
procedure.
t]nited State
It may be noted that public interest litigation originated fr~Jll tarted in the
5
where it has been firmly established around 1965. In England~ it inst public
name of Citizen Action wherein any citizen co\.t.l~ file a wr~t a?ag of public
authorities for the cause of common man~ In India, the begt~illwhen locus
interest litigation jurisprudence is reckoned from late seventl~! ,5 case.10 In
standi rule was given a decent burial in the famous Judges Trans/er
this historic case, Justice Bhagwati, inter alia observed :
. of public interest
1. Fonnerlly the Vice Chancellor of Delhi University and a protagonist
litigation which he prefers to term as 'social action litigation'. lh 1• Administration,
2. Hussainara I<hatoon v. State of Bihar, AIR 1978 SC 1360; Sunil Batra v. D_e f[ongry v. Union
AIR 1980 SC 1579; Rudal Shah v. State of Bihar, AIR 1983 SC 1083; Sebest'a&s6 SC 499; Kadra
of India AIR 1984 SC 571; Bhim Singh v. State of Jammu and Kashmir, AIR }alown as Bihar
1
Phadia v. State of Bihar, AIR 1980 SC 939; Khatri v. State of Bihar, al 5 ~ 87 SC 219 etc.
3.
Blinding case AIR 1981 SC 928~ Surya N~rayan Singh v. State of Bi~r, ~~ \uy settled by the
Bandhua Mukti Morcha v. Umon of India, AIR 1984 SC 802, which ts fin pradesh, AIR 1984
decision in (1991) 4 sec 177; see also Neerja Choudhari v . State of Madhya Bairam v. State of
SC 1093; P. Shivswamy v. State of Andhra Pradesh, AIR 1988 SC 1863;
Madhya Pradesh, AIR 1990 ~ 4:1' etc. . . i.e., (Asi~d case),
4. Peoples' Union of Democratic Rtgh~s v. Unw~ of India~ AIR 1983 SC 1473 ; tvfum~at Kamgar
3 88
Fertilizer Corporation Workers Umon v. Union of India, AIR 1981 SC . -.,. United Labour
Sabha v. Abdul Bhai, AIR 1976 SC 1465, Air India Statutory Corporation
Union, 1997 LLR 288 etc.
5. Olga Tellis v. Bombay Municipal Co~oration, AIR 1986 SC 180. . protection of Sil~nt
6. Ratlam Municipal Council v. Vardhichand, AIR 1980 SC 1122; Society for e of Kerala High
Valley v . Union of India, (Writ petition No. 3025/1979, an unreported c:ss .O . Corporation,
Court); M.C. Mehta v. Union of India, AIR 1987 SC 965 ; Damodar Rao a,iun v. State of U.P.,
Hyderabad AIR 1987 SC 171; Rural Litigation & Entitlement Centre, Dehr 514 . State of H.P. v .
AIR 1985 SC 652; Tarun Bharat Sangh v. Union of India, AIR 1992 SC p...W.. 2001 SC 1848,
Ganesh Wood Products, AIR 1996 SC 150; M .C. Mehta v . U.0.1. & other' 5

etc. . . dtninistrator, Union

In recent years, law-making has assumed new dimensions through judicial 7.
activism of law courts. The judiciary has adopted a healthy trend of
interpreting law in social context. Hitherto, the rigidity of the locus standi 8.
rule deprived the poorer sections of the society from approaching the courts for 9.
enforcement of their fundamental rights against the rich and affluent class of
10.
1. Sh.aw v. Director of Public Prosecutions, (1 %2) AC 220.
Maneka Gandhi v. Union of India, AIR 1978 SC 597; Francis Korah v. A 1 78 etc.
Territories, AIR 1981 SC 746; Unni Krishnan v. State of A.P., AIR 199~ ~ tisltakha v. State of
Rajasthan Kisan Sanghatan Sangh v. State of Rajasthan, AIR 1989 RaJ. 10,
Rajasthan, AIR 1997 SC 3011 5CC 596; Rajender
Munna v. State of U.P., (1982) 1 SCC 545; Sheela .Barse v. U.O.I. (1986) 3
Chandra v. Chandigarh, AIR 2000 SC 748.
S.P. Gupta v. Union of India, AIR 1982 SC 149.
 598
JURISPRUDENCE AND LEGAL THEORY
RECENT TRENDS IN INDIAN JURISPRUDENCE

dete=:r: a tgal -;vrorig or legal injury is taused or threatened to a person or
a e c ass o persons and such person or determinate class of ersons is
0
:rs:;:soi;s ~ pov~~ty; helplessness or disability of socially or eco~omically
the u:l age pos_1t101:1, unable t~ a~proach the court for relief, any member of
writin th:
~~ghm~mtam adn apph~ation for a~ appropriate direction, order or
ourt un er Article 226 and m case of any fundamental · h
of such person or determinate class of persons fa this Court (1· e th S . ng t
Court) u d A r1 I ' · · ., e upreme
d n er r c e 32 seeking judicial redress · for the legal wrong or inJ"
cause to such person or determinate persons." ury
. rTh~ publi~ interest litigation has now come to stay as a major strategy for
~~;;~e b~tw~a er s:gments of society.I It is not only confined to fundamental
threatened~ so see s to redress any legal wrong or injury actually caused or
Exemplary Damages for Misfeasance by Public ~ervants-A New Trend
. 1994 for such allotment. The Court observed that she had misused her
discretionary powers and the said allotment was wholly arbitrary, mala fide
and illegal and orderd her to pay exemplary damages of Rs. 60 lakhs to the
exchequer within nine months. The Court ruled that it had already laid down
the law on exemplary damages against public servants for misfeasance in its
earlier decision. ·
Epistolary Jurisdiction
Epistolary jurisdiction of the Supreme Court and the High Courts has
added new dimensions to the scope of public interest litigation in India. Under
this jurisdiction, even ordinary letters and newspaper cuttings have been
treated as writ petitions and the courts have initiated suo motu action against
the erring authorities. The judges of the Supreme Court, notably Justice P.N.
Bhagwati and Justice V .R. Krishna Iyer championed the cause of judicial
activism to promote social justice by liberalising the locus standi rule. It is

~~Ef:r~:;;:i;.=G;:1~:~z:~'.:i'1!'i:~:~1a~:=e:~::
. Disposing of a public interest petition brought by Shri H D Sh ..
indeed a revolutionary step in the history of judicial administration in India.
In order to ensure that only genuine and public interest writs are placed
before the Court, a Public Interest Litigation Cell has been established in the
D rrector of Common ,.,ause a Supreme Court and• all the letter-petitions are now processed and thoroughly
I t . · • oun,
Minister for . . '- . , vo un ary organ1Sations against former Petroleum scrutinized by the Registry of the Court. Undoubtedly, the higher judiciary
ag;n~ies to :::•~;:.~~e~~: ~i,:::,~:~;i~~:ri~;~:lif:d"'.~ 7'f g3!
pe ro pumps as if he was a king and the u his 0
e ou
through public interst litigation is doing yeoman service to the society in
general and to the neglected and appraised poor classes in particular. But in
absence of a effective enforcing machinery one really wonders what fruitful
showing scant regard for the rule of law". ile~~ ~:re b pe~s~~al p~operty purpose it is going to serve. Mere judicial pronouncements are hardly going to
trustee of the public ro ert Th us a use 1s office as a
against the arb·tr p ~ y. e Apex Court th erefore, reacted sharply
1 ary, atrocious and unconstituti
. heel the wounds of the victims of social injustices which are rampant in the
1 t f h Indian society even to this day. Judicial activism has helped to contain
and held him ·Iiabl f • . . . . ona ac O t e public servants ·
pay Rs. 50 lakhs a: e°:.
m1stsm~ his discretionary powers and ordered him to administrative lapses, excesses and high handedness to a considerabe extent
The Court further rule~~Ja:: am~~es b_~ way of liability for misfeasance.4 but unless the erring officials and authorities are made personally accountable
exchequer within nine month ca~: he s~1 amount was not doposited in the for compensating the person wronged, there is little hope of concrete results.
Significantly it was for the firtt' t11·mse ~uthd bhe. recovered as 'land revenue'. There is greater need to ensure that decisions of the courts are properly
. servant's liability f implemen_ted.
th at P u b he . fm e 1story of Indian Junspru· · d ence
Court which would certain! oo: tis easan_ce was ~~elled out by the Apex Caution Against Excessive PIL
from misusing their discretirn!ry p~:!ttY
thin ~estrammg politicians in power
or eir personal advantage. The explosion of judicial activism through public interest litigation has
pushed the judicial activism to the end of the road. The well established and
The second judgment involvin bl· • · ··
was handed over by the S . Cg pu IC servants hab1hty for misfeasance well defined rules of procedure have nearly become re.dundant. This has
Union of lndia.5 A public ;:;:;;:: w;i~rt ~~-8th Nov~mbe~, 1996 in Shiv Sagar v. brought uncertainty in law, Moreover, an already divided Court into benches
against the Former Union Urban Minie I Ion was _led m the Supreme Court has further been divided. Individual leadership among the Judges of the court
prime locality of Delhi to her f .ter_ for _allo~tmg 52 shops and stalls in is yet another outcome of public interest litigation. Thus in M.C. Mehta v.
avoun es m v10lahon of policy laid down in Union of India, 1 the Court considered the procedure as 'merely a hand-maid of
-,-,=~~-""""'."-:----
1· Indira Sawhney v. Union of India AIR 199 justice. Mr. Justice R.S. Pathak (as he then was) had observed in Bandhua

2.
1993 SC 1126; Government of A.P. v: Vijayi~'!41iit{~§ ~~'::iaka ~- Appa Balu Jngle, AIR
Common Cause, A Regd. Sodety v . Union of India, AIR 1997 SC 1886 8, etc
Mukti Morcha v. Union of India, 2 that mere letters without proper form and
verification should not be accepted by the Court. But his opinion was
3. AIR 1997 SC 83. ·
sidetracked in M.C. Mehta 's case and it was asserted that the Court will
4. 1
Co'!1mon Cause, Regd Society v. Union of India, AIR 1996 SC 3538.
5. Shiv Sagar v. Union of India, AIR 1997 SC 1483. 1. AIR 1987 SC 1086 (1090).
2. AIR 1984 SC 802.
 600 _JURISPRUDENCE AND LEGAL TI-IEORY
entert~in even a letter written by an individual, or social action group acting pro
bonro publico. · permission of the Chief Justice.
It is not being suggested that judicial activism through PIL is wholly
undesirable, but certainly it should be used within defined limits. Judicial
over-activism is fraught with inany dangers. Firstly, the over-liberalisation ·of
the rule of locus standi has produced groups of individuals who tend to assume
the roles of both the _petitioner as also the Judge. 1 Secondly, the Court has
assumed the role of a State within the Union of India by creating new norms,
exercising supervision over the implementation or appointing commissions or
committees while deciding the case. Thirdly, the well established doctrine of
precedent is becoming out of fashion. ·
Undoubtedly, while deciding a PIL case, the Court may keep in mind the
II constitutional mandate of socio-economic_ transformation, but should not usurp
the legislative role . Justice V. Khalid, in Sacchitanand v. Statt: of West
Bengal2 sounded a note of caution over activism and suggested judicial restraint
ll not only by the Court but also by the litigants. Courts can only give direction to
the spirit of law but basic social or economic reforms do not fall within its
ambit.
i Amidst rising controversy over the scope and ambit of judicial activism, the
It needs to -be emphasised that the Constitution has entrusted the
t responsibility of good governance to the Executive. Therefore, Judiciary should
not take upon itself the role of executive and the legislature in the guise of
judicial activism. Some of the cases where judiciary over-stepped its
jurisdiction in the name of PIL are cited below.
In a 1999 case, the Supreme Court asked the Speaker of Manipur Assembly
to appear in person to face contempt proceedings. The Speaker refused to
comply with the order and claimed privilege for his acts guaranteed under the
Constitution as Speaker. The situation ultimately could be saved by persuading
the Speaker just to show up in the Court-room. This was treated as the Speaker
having apologised without uttering even a single word!
In Panchu Barua v. Umesh Chandra Goswami, 3 the Gauhati High Court
had ruled that Section 60 of the Indian Easement Act relating to licence will be
applicable to Assam although the legislature of Assam State had not made
the Act applicable there. Over-ruling this decision, the Supreme Court
intervened to hold that an enactment not applied by the legislature cannot be
made applicable by the judiciary. This amounts to legislating for which
neither the High Court nor the judiciary had any power.
The suo motu notice of Dengu Fever in Delhi (in 1999) by the Delhi High
Court and its . deputing certain lawyers to visit hospitals and report the
condition there to devise future directions to be given by the Court, compelled
the the Chief Justice of the High Court to issue an order on the administrative
1. Seela Barse v. Union of India, AIR 1988 SC 2211.
2. AIR 1987SC 1109.
3. AIR 1997SC 1041.
RECENT TRENDS IN INDIAN JURISPRUDENCE 601
side that no Judge shall take suo motu notice of any news item without prior
n,ie Apex Court ruling in Vishakha v. State, 1 commonly known as sexual
harassment ~f working women case, that the detailed -guidelines given by it in
the case wilt' continue to be followed till the Parliament enacts a suitable law
on the subj~ct is said to have given· a burial to the Montesquie's theory of
separation of power inasmuch as the law (i.e., the guidelines) laid down by the
Supreme Court will have the status of a statutory law if the Parliament does
not enact the law at all.
Again, the price-rise of onions in 1999 and the Allahabad High Court's
judicial intervention in the matter provides a glaring example of an attempt to
over-activism. In this case a Di vision Bench of the High Court referred the
matter to a larger Bench in view of the difference of opinion bet:ween two
Judges. While one member of the Bench (Katju,. J.) strongly favoured judicial
· intervention in the matter, the other member (Saraf, J.) felt that the golden
rules of judicial intervention is to·deal with those matters where the Court can
give relief. He felt that the Court cannot stop price-rise by passing an order.
Supreme _Court while dismissing a PIL filed by Common Cause 2 seeking
direction to the Government to implement certain road safety measures
observed that public interest litigations have largely become publicity interest
litigations and a nuisance obstructing the hearing of genuine cases pending for
years. The Court held that PIL which was initially created as a useful judicial
tool to help the poor and weaker sections of society who could not afford to
come to Courts for justice, has, in course pf time largely developed into an
uncontrollable ........ nuisance whith is threatening to choke the dockets of
superior Courts obstructing hearing of genuine and regular cases which have
been waiting to be taken up for years together. Justice Markandey Katju while
disposing of the petition said, "unfortunately the truth is that PIL's are being
entertained by many Courts as a routine and the result is that dockets of most of
the superior Courts are flooded with PILs, most of which are frivolous or for
which the judiciary has no remedy." He further observed, "public interest
litigation, has now-a-days become 'publicity interest litigation' or 'private
interest litigation', or 'politics interest litigation' or the latest trend 'paise
income litigation', and most of PIL is largely blackmail". Justice H.K. Serna
who wrote a separate but concurring judgment in this case agreed with Justice
Katju that PIL was being mostly abused for private or personal interests.
The Supreme Court in M/s. Holicow Pictures (P) Ltd. v. Prem Chandra
Mishra & others., 3 reiterated that "the Court must be careful to see that a body
of persons or member of public, who approaches the Court is acting bona fide
and not for personal gain or private motive or political motivation or other
1. AIR 1997 SC 3011.
2. Supreme Court's Judgment on Common Cause PIL, dated 11th April, 2008.
3. AIR 2008 SC 913; See also Common Cause (A. Regd. Society) v. Union of India & others, AIR
2008 SC 2116.
· 602 JURISPRUDENCE AND LEGAL THEORY
oblique considerations. The Court must not allow the process to be abused for
oblique considerations by masked phantoms who monitor at times from behind.
Some persons with vested interest indulge in the pastime of meddling with
judicial process either oy force of habit or from improper motives; and try to
bargain for a good deal as well to enrich themselves. They are often activated
by a desire to win notoriety or cheap popularity. The petitions of such busy
bodies deserve to be thrown out by rejecting. at the threshold, and in
appropriate cases with e~emplary costs."
.Continuing in the same vein, the Apex Court noted that the petitions based
on newspaper reports without any attempt to verify their authenticity need to
be disallowed as newspaper reports do not constitute evidence.
As Dr. S. P. Sathe rightly observed, "at times, the Courts while disposing
of PIL petition go beyond the scope of their powers; they entertain matters
that ought not to have been entertained because of a lure for populism or
adventurism in utter violation of doctrine of ~eparation of powers. Suc;h excesses
ought to be prevented or minimised through judicial self-restraint. The former
CJI, Dr. Anand, has cautioned against excessive use of PIL. Leaving a note of
warning against excessive judicial activism, Prof. Sathe said, "judicial
activism is not an aberration. It is an essential aspect of the dynamics of a
constitutional court. It is not to be taken as governance by the judiciary. It must
function within the judicial process. The quest for in justice and crusade against
injustice are best served by a balanced approach to judicial activism."
In the ultimate analysis, it may be stated that judiciary should refrain
from encroaching upon the areas which are exclusively within the domain of
the legislature or the executive as provided under the Constitution. It must give
due recognition to the privilegs of the other constitutional institutions and
organs. The socio-economic objectives enshrined in Parts III and IV of the
Constitution should be achieved mainly by the method of interpretation which
is the mightiest in the armoury of the judiciary. The judiciary must exercise due
caution and avoid falling into a political trap in the garb of PIL. In short, use of
public interest litigation should be regulated through self-restraint, both by,
the activitists as also the Hon'ble members of the judiciary. There should be
mandatory provision for exemplary costs where PIL is found to be motivated
and frivolous. 1
Social Justice Through Legal Aid and Lok Adalats
The Constitution of India, in its Preamble speaks of Justice-social,
economic and political. The principles of equality before law and equal
protection of law contained in Article 14 impose an obligation on the State to
provide even-handed justice to all alike. Article 39-A inserted by Constitution
(42nd Amendment) Act, 1976, provides for legal aid and assistance to poor and
indigent litigants. The purpose of these constitutional mandates2 is to protect
1. 1999 AIR Journal 241.
2. Article 41 of the Constitution also directs the State to make public assistance in cases of
unemployment, old age, sickness etc.
· RECENT TRENDS IN INDIAN JURISPRUDENCE 603
the neglected and down-trodden poor and indigent against the onslaughts of
the more powerful and ~lite section of society and provide them an opportunity
of getting justice through free legal aid cells. In other words, no one should be
deprived of his right to move a court of law because of poverty or any other
social disability. ·
· Historical Background
The origin of the conc_ept of legal aid can be traced back to the historic
Magna Carta 1 of 1215. Thereafter, with the subsequent socio-economic
developments, many welfare schemes were introduced. Free legal aid to poor
and down-trodden to provide them access to justice was also one of the social-
service oriented schemes which· received attention of legal luminaries. A
resolution was passed by the Human Rights Conference held in Tehran in 1968
under the auspices of the United Nations which emphasised the need for free
legal aid and assistance to poor and indigent for the protection of their human
rights and safeguarding their fundamental freedoms. The legislation for free
legal aid and assistance to poor and. indigent persons also existed in United
Kingdom2 as early as 1948.
Article 14 (3) of the International Convenant on Civil and Political Rights .
provides that right to legal counsel is an integral part of guaranteed civil
rights. Taking inspiration from these efforts of the United Nation many
western countries established Legal Aid Clinics to provide legal assistance to
the needy poor. An International Legal Aid Association was also established
for this purpose. Some countries set up Conciliation Boards to mitigate the
rigours of adversarial litigation.
In India, the beginning of the legal aid movement can be traced back to the
appointment of Justice Bhagwati Committee by the Government of Bombay in
1949 to examine the feasibility of providing free legal aid to indigent and
socially disabled persons. The Committee made important recommendations
and pointed out that the provisions relating to pauper suit contained in Order
33, Rule 1 of CPC were inadequate to meet the requirements of the poor litigants
as they only provided exemption from the court fees and not the other legal
expenses in a suit.
lhe Government of India, in 1952 directed all the State Governments to
provide legal aid and assistance to all those undertrials whose offences were
punishable with imprisonment exceeding five years. In view of the apathy
shown by the State Governments in this regard, the Centre issued similar
directives again in 1958.
The Law Commission in its 14th Report3 emphasised the need for setting up
legal aid agencies all over the country to redress the economic inequalities and
provide assistance to indigent litigants. On the basis of this Report, an
elaborate legal aid scheme was drafted in 1960 and was sent to the States for
1. Article 40 of Magna Carta (2115).
2. The Legal Aid & Advice Act, 1948. Another similar Act was passed in England in 1968.
3. 14th Report of the Law Commission of India, (1958) Vol. I. p. 587.
 604 JURISPRUDENCE AND LEGAL THEORY
their consideration. The States, however, expressed their inability to adopt
the Scheme for financial reasons. The matter was raised in the Conference of
the Law Ministers of the States in 1962 hµt to no avail. The scheme therefore,
remained in cold-storage for the next eight years.
The National Legal Aid Conference held in March, 1970 drew attention
towards _the pressing need for implementation of a comprehensive scheme of
Legal Aid in India. Mr. Justice V.R. Krishna Iyer, the Chairman of the Legal
Aid Committee 1 prepared a blue print of the scheme putting forth the
philosophy underlying this social welfare measures to ensure effective and
cheaper justice to the Indian masses.
The beneficiaries of the legal aid scheme are weaker sections of the
society. For instance, members of the Scheduled Castes and Scheduled Tribes,
Backward Classes, rural agricultrural and industrial labour and workers,
women, Harijans, juvenile, undertrials and geographically deprived depressed
classes.
The Legal Services _Authorities Act, 1987 is intended to avoid laws delays
and enable people's participation in Judicial administration through Lok
Adalats which in a sense is an expansion of public interest litigation in rural
areas. It has helped speedy disposal of family disputes, divorce cases, motor
accident claims, insurance cases in shortest possible time.
u
• 1
Lok Adalats are morally obliged to ensure that compromises forming the
basis of their decision are founded on solid principles of justice and parties do
i not suffer injustice in the populist wake of getting the dispute settled on account
'I of · their innocence or ignorance. In the working of a Lok Adalat the public
!I opinion (Lok) aspect and the thorough deliberation (Ada1at) aspect should be
:1
:I judiciously blended and balanced, especially in view of the fact that the
)I
decisions of Lok Adalat are non-appealable. This is the reason why Judicial
l Officers have been made an integral part forming the Lok Adalat and legal
principles of justice, equity and fair play2 are the guiding factors for decision
based on compromises to be reached through such Adalats.
Section 20(1) of the Legal Services Authority Act, 1987 provides that the
Court in which a case is pending may transfer it to Lok Adalat for settlement
when the parties to the case have · made a joint application indicating their
intention to compromise the matter.
It is well known that adversary system adopted in law courts for
dispensation of justice is somewhat time-consuming particularly because of
.frequent grant of adjournments without sufficient justification. Therefore, Lok
Adalats can widely be used as alternative method of dispute resolution. This
will not only eliminate long delays and heavy expenses in litigation but will
also lessen the mounting arrears of cases pending in law courts to a considerable
extent. ·
1. The Committee submitted its Report in October, 1972.
2. Sections 19(1) and 20 (4) of the Legal Services Authorities Act, 1987.
RECENT TRENDS IN INDIAN JURISPRUDENCE 605
. The rol~ of legal fra~ernity, particularly ·those of lawyers, in
unplementation of !he legal atd and assistan~e scheme in its true spirit hardly
needs to be emphasised. It would be worthwhile to quote the observations made
by the noted jurist H.L.A. Hart in this regard who said, "useful function of
lawyer~ is not only to conduct litigation, but to avoid it wherever possible by
ach1ev~g settlement or withholding suit. "1 Besides legal practitioners, the
academic lawyers and law-teachers can also play a significant role in
am~liorat~g. th~ su~ferings o~ neglected sections of the community by their
active participation m legal aid schemes, legal literacy programmes-and Lok
Adalats which have now been accepted as indispensable appendages ·'of the
Indian Justice system.
Role of Supreme Court in Implementing Legal Aid Scheme
· The Supreme Court has played a commendable role in ensuring legal aid ·
and assistance to the indigent and resourceless people. The rules of the Supreme
Court provide that it is mandatory for the State to provide the services of a
competent lawyer to an undefended accused who is being tried for an offence
punishable with the sentence of death.
The Supreme Court in its historic decision in Hussainara Khatoon v. State
of Bihar2 which was followed by a subsequent decision in Kadra Phadia v.
State of Bihar3, observed that free legal aid and assistance is a right implicit
in the mandate contained in Article 21 relating to protection of life and liberty
of persons Section 110 of the Code of Criminal Procedure provides that a
Magistrate or a Judge is under an obligation to provide a defence counsel to the
accused in pursuance of the mandate contained in Article 21 of the Constitution.
In its decision in M.H. Haskot v. State of Maharashtra,4 the Supreme
Court interpreted the constitutional provisions contained in Articles 14, 19(g),
21 and 22 in such a way that they may create awareness among the people
about the urgency of legal aid to poor and indigent persons. The Court laid down
the following guidelines for legal aid and assistance to the convicte~ persons or
those whose right to life or personal liberty is seriously jeopardised···:- .
1. A copy of the judgment should be made available free of cost to the
accused who is sentenced to a term of imprisonment. The copy should
be made available to the convicted person soon after pronouncing the
judgment.
2. The Jail administration must make adequate arrangement f::>r
providing legal assistance to the prisoner who wants to file an
appeal or a review application against his conviction. ·
3. The Court should make the services of a lawyer available to an
accused who is unable to engage a legal counsel due to poverty or .
paucity of financial resources.
1. Carter C.W. : Ethic,; of Legal Profession, p. 125.
2. AIR 1979 SC 1360.
3. AIR 1980 SC 939.
4. AIR 1978 SC 1548.
 JURISPRUDENCE AND LEGAL 1HEORY
606
4. The legal counsel so appointed for the help and assistance of the
accused should be paid adequate fees by the State.
In Khatri v. State of Bihar1 the Supreme Court clarified that the right of
an accused to get legal aid and assistance begins from the time he is produced
before the Magistrate for the first time. It is mandatory of the Magistrate or
the Judge to appraise the indigent accused about his right to legal assistance in
case he is unable to defend himself due to paucity of financial resources.
In Centre for Legal Research v. State of Kerala, 2 the Supreme Court
observed that in order to accomplish the object of social justice contemplated by
Article 39-A, the State should encourage voluntary social service organisations
to come forward and actively participate in the legal aid programmes so that
benefits of justice reach the common man.
Legal-Aid Programme in Different States
In pursuance of the directives from the Central Government, many States
enacted their own legal aid legislations. The State of Madhya !>radesh
introduced a comprehensive legal aid scheme under the M.P. Legal Aid and
Assistance Act, 1976 which came into force on May 6, 1976. Initially, the
scheme was introduced in only few districts which were predominantly
inhabited by Adiwasis or aboriginal tribes. It was subsequently extended all
over the State from August 15, 1976. The Legal Services Authorities Act, 1987
has substantially helped in promoting the legal aid and assistance programme
throughout the . country. The law schools are taking keen interest in
implementing the scheme and most of the institutions imparting legal
education have started legal aid clinics for this purpose.
Lok Adalats
Yet another significant landmark in the history of judicial administration
is the institution of Lok Adalats which have taken justice to the door-steps of
common men, particularly those living in rural and remote areas rather than
they coming to the door-steps of law courts. Undoubtedly, the Legal aid And
Advise Committees are making all possible efforts to provide weaker sections
of the society access to justice but the process of litigation, by the large, still
remains dialatory mainly because of procedural formalities of law. One of the
reasons why the legal aid programme has not been successful to the extent
expected by the people is that the really competent lawyers are not coming
forward with their services for this noble cause due to inadequate fees paid by
the State to legal aid lawers. The complex technical formalities of legal aid
service is yet another stumbling b}ock in the successful working of this scheme.
Therefore, in order to ameliorate the hardships of rural litigants, Lok Adalats
are held by the State Governments at different places at regular intervals.
The main object of the institution of Lok Adalat is amicable settlement of
disputes between the parties by mutual consent and to ensure speedy disposal of
1. AIR 1981 SC 939.
2. Gopalchari v. State of Kera/a, AIR 1981 SC 674.
REChNT TRENDS IN INDIAN JURISPRUDENCE 607
cases with minimum procedural formalities. As Justice P.N. Bhagwati,
formerly the Chief Justice of India rightly observed. "Until now the litigating
parties had to bang the doors of law courts for justice, now under the Lok Adalat
system, the justice is taken to the doors of the parties."
· Presently, Lok Adalats are functioning successfully in the State of
Maharashtra, Gujarat, Kerala, Andhra Pradesh, Madhya Pradesh, Delhi etc.
These Adalats dispose of a variety- of .cases including civil, criminal
matrimonial and maintenance cases. The cases involving land revenue disputes
and motor accidents are also speedily disposed by special Lok Adalats held for
this purpose. The requirement of court fees or presence of lawyers is dispensed
with in the proceedings of Lok Adalats. The parties comP, face to face and
resolve their problems with the help of the members of Lok Adalat.
The Lok A~alats have been functioning in India for over one and half
decades, they have brought justice nearer to the general masses. Their efficacy
may, however, be further improved by adopting the following measures : -
1. Greater participation of legal fraternity including lawyers Judges, .
Law-teachers and administrative officials is necessary for the
success of the Lok Adalats.
2. The Collector of the District should be authorised to work out a time-
Schedule for these Adalats and it should be notified to the
participating litigants well in advance.
3. These institutions of participatory justice should be kept
commpletely free from political interference. The presence of
political leaders in Lok Adalats is contrary to ethical norms set for
the judicial administration.
4. Since the decisions in Lok Adalats are taken with the mutual consent
of the parties who have agreed to compromise their case, there is no
question of appeal from these decisions. Nevertheless, due credence
should be given to these decisions.
The public interest litigation, the legal aid scheme and the Lok Adalats,
taken together, have brought about revoluntionary changes in the Indian legal
system. They have transfon.1ed the concept of social justice into a reality in the
Indian society. In the welfare state of today, individual action has been closely
subjected to State control. Distributive justice requires that each one in the
country should receive justice in an even handed manner. Justice is the principal
and legitimate end of law and the law cannot command respect if it is divorc~d
from justice. This is the cardinal principle and philosophy underlying any
ideal judicial system. This purpose shall be accomplished if our law courts
strive to dispense justice within the framework of the general welfare of the
people as a whole.
Delay in dispensation of justice and the resultant denial of citizen's
fundamental right to justice has been a cause of serious concern both for the
608 JURISPRUDENCE AND LEGAL THEORY RECENT TRENDS IN INDIAN JURISPRUDENCE
609
Government and the judiciary. Alternative dispute resolution mechanism like the cases which are for and few on this cru · 1 .
plea bargaining 1 and pre-litigation counselling,2 arbitration etc. have been criminal justice. ' cia aspect of dispensation of
suggested to overcome the problem of law's delay. Besides, fast-track Court
Earlier, when plea bargaining had not been statutor r .
system has also been adopted in India from 1st April, 2001 for speedy disposal S~preme Court in State of Uttar Pradesh v. Chandrika 1 had y b ecogmsed, the
~ra~ . .
disposal of cases on the basis of .plea-bargainin i~ not o se~~d that the
acceptance or admission of guilt should not be groun~ for red pti~rm1sfs1ble. Mere
Plea Bargaining : this t· Id uc on o sentence as
_prac ice wou tend to encourage corruption and contribute t b I • -
The system of plea bargaining has its origin in the U.S. Criminal Justice the standard of criminal justice system. o e owermg
system. It is introduced in India by the Criminal Law (Amendment) Act, 2005.
The process of trial begins at the stage when the accused is required to enter a Expressing similar view, Justice P. N. Bha wati in Ka .
Abdulrehmanbhai Seikh v. State oif Gu1·arat 2 declaregd lea b ~ar_nbha z
plea. It generally begins with a formal reading of the charge. The accused is ft · I • ' P argammg as
advised of his constitutional guaranteed rights against self-incrimination and urco: I U!I~na and Illegal and set aside the conviction of the accused based on
rights of counsel and protection. The accused may plea guilty of crime or for a P ea argam~g and remanded the case to the trial court for being decided ·
accordance with the law. . m
lesser offence. The plea of guilty to a lesser charge often results from plea
barg.1ining on the advice of his defence counsel. Where the counsel for the The Court in this case had observed that plea bargaining procedure would
accused feels that the charges against the accused are so strong that it is b~ clea~ly unreas_onable, unfair and unjust and would be violative of the new
unlikely that he will be found innocent .by going through the trial, he may ~ 1;ension_ of Article 21. It would pollute the pure function of justice as it might
bargain the plea with the prosecutor to accept the plea of guilt for a lesser m uce an innocent accused to plead guilty to suffer a lighter punishment rather
charge and thus save time and expenses of prolonged trial. The prosecutor than go through a long drawn arduous criminal trial with unpredictable
generally accepts the plea for _a lesser charge. If the Magistrate is convinced resu 1ts.
that the plea is voluntary with no promises of lesser sentence and is according
Similar views were expressed by the Apex Court in Thippaswamy ~ State
to the true wishes of the accused (defendant), he may accept the plea. 3
of Karnataka, wherein it was held that imposition of sentence aft~r the
However, plea bargaining is not accepted for offences punishable with sentence.
for more than seven years.
The system of plea bargaining has been introduced in India with a view to
accused_ h~d bargained in the plea for a higher punishment is wholl
u~con~t~tuhonal and violative of Article 21, it may lead to corrupt practices
d1spos1t10n of criminal justice in India.
i:
reducing the number of pending criminal cases and their speedy disposal. It is
_Ii:1 State of Haryana v. Janak Singh and others,4 the Supreme Court
hoped that it will gradually pick up and attain the desired goal. clanf1ed that the offe~ce of rape being most heinous crime against woman as it
It may be stated that plea bargaining under the Code of Criminal dwarfs her persoi:ia!ity, erodes her confidence and violates her right to life,
the sentence bar~a~nmg cannot be permitted in rape cases. The Court in this case
Procedure, 1973. (Sections 265A to 265L) involves part-bargain and part
h~ld that the mm1mu_m ~o~ the offence of rape is seven years therefore, the
compounding with the permission of the Court. Since the modalities of plea High Cour! was not Justified to reduce it to one already undergone by the
bargaining are to the worked out mainly by the complainant/victim and the accused which was merely one year and ten months.
accused by mutual disposition, the role of prosecution is very limited under the
Indian Law as against the American Plea Bargaining System, in which the Compensation to Victims of Crime
prosecutor has a major role to play during charge-bargain. The higher Courts, taking note of the lacuna in the existing criminal justice
Further, despite legal and statutory recognition having been extended to system, have now started granting compensation relief to victims of crime but a
plea bargaining in the Indian Criminal Law system, very few people seems to com~r_ehen_sive legislation on this crucial aspect of criminal j~stice
have welcomed it and the general opinion in this regard is that in an anxiety to ad~ 1~ 1stration system is still awaited. Though the amendment of the Code of
·reduce the pendency of criminal cases, the experimentation in the form of plea Cn~m~l ~ro~edure in 2008, has statutorily5 recognised the need for protection
bargaining has been adopted to speed up case load disposition. The reluctance of victims nghts. A new Section 357-A has been inserted in Cr. P.C. by
of the legal fraternity to accept the system of plea bargaining is evident from 1. AIR 2000 SC 164.
2. AIR 1980 SC 854.
1. A new Chapter XXI-A including Sections 265-L to 265L has been inserted in the Code of 3. AIR 1983 SC 747.
Criminal Procedure, 1973 by the CrimL'lal Law (Amendment) Act, 2005 4. AIR 2013 SC 3246.
2. Section 89 of the Code of Civil Procedure (Amendment) Act, 1999. w.e.f. 1st July, 2006. 5. Sections 357 (1) and (3) of Cr. P.C., see also Section 358 (1) and Section 431, Cr. P.C.
 --- - - - - - -- ·- __

JURISPRUDENCE AND LEGAL.THEORY

610 . \ -
RECENT l'RENDs IN INDIAN JURISPRUDENCE
. . . . . . 1 'ustice seemed to be more
rather than the ~
the e"';i:'.!=;r...!ms 611
Ameitdment Act of 2008. So £3:, Alternative Dispute Resolution (ADR) :
focused on the care and atte~tion ?f th defend himself by the Counsel of his
In order to reduce the burden of civil Courts, greater emphasis is being laid
.of his crime. He has been gt~en n'?11t~:dn cases and extended a num~r~of now-a-days on recourse to ADR methods by the litigants. The new provision
choice that too at the States cost m . custod and trial. Even his conviction added to order X, namely, Rule 1-A, 1-B and 1-C by the cPc (Amendment) Act,
, . during the process. of detention,
protection s of .
pumshmen y t under one or the ·other 2002, further widens the scope of ADR system like mediation, negotiation,
1
·s protected against the rigour - . ·ct· ed prisoners__or accused persons. arbitration, conciliation, etc. As a result of this, now after a suit is filed, the
habilitative
· · programmes meant
- for convt
f clinical treatment, reh abilita tion or court will direct the parties to opt for any of the alternative dispute resolution
~us punishment is more in the nature~ _a .dafter care community services. mechanism for settlement of their dispute. It is only when parties are not
resocialisation through probation, par~= completely neglected throughout agreeable to seek recourse to any of these methods, the courts will proceed
• run· of crime more or less, rem .
The v1c ' · . further with the case. The ADR which is one of the convenient methods for out
of Court
over settlement of disputes by the parties has gained sufficient momentum
the years.
· the process. . "minal •ustice system and re~Iis~g · the
Taking note of this lacuna m thfe °? e th~ public interest activists filed a Fast Track Courts :
O
· ti~e to victims
need to provide JUS. bef thecrtm '
Supreme Court pray f,or_ ~eliorating
h A thex

:~~
umber of P.I.L. petitioners ore . h 1 to these petitions, t e pe
The setting up of the Fast Track courts is yet another device resorted to
:iiserable plight of vi:ms~i!::c:;.:a;i::this grave _p~l""; ~d ensure speedy disposal of cases. Initially, 450 Fast Trad< Courts were launched
.Court also came out w1 P? I resocialization of victims o cnm . across the country on April 1, 2001 as against the proposed 1734 Coutts. By the
awarding compe~sato7 reb~~l ~:stice system .had also recommended for end of March, 2005, there were in all 1562 Fast Trad< Coutts functioning in the
Malimath Committee on c J th "ctims of crime 3
country. These Courts disposed of 7.94 lakh cases out of 15.28 lakh cases
need to focus on compensatory right to e v1. 357 A of t.he Code of Criminal
• bTt f Section - · . . transferred to them. These Courts were created under the scheme approved by
For the purpose of apphca I I y ob I ced in two broad categones : - the Eleventh Finance Commission (i.e., 2001-2005). The Central Government,
Proced ure, 1973, victims of crime have een p a . . . however, approved the continuation of Fast Track Courts for a period of
·(a) Primary victims ; and another five years, i.e., upto March 31, 2010.

(b) Secondary victims. . . f crime who are entitled The FTC's hear cases which come under the jurisdiction of the Sessions
. p 1 Code the v1cttms o d Court. The Supreme Court in Brij Mnhan Lal v. Union of India 1 directed the
According to the Indian ena . 35; A f the Code of Criminal Proce ure,
for compensatory right under Section - o States and Chief Justices of High Courts to ensure that all vacancies of FfC's
must be filled up within three months of the judgment. Accordingly, the
1973 are as follows:- . ff d physically, mentally, functioning of these Courts was revamped by the end of 2002.
. . s who have directly su ere
(I) person . esult of crime ;
financially, s~1ally, as a r . t f cn·me by the offender; Fast Track Courts are no doubt, a novel experiment aimed at clearing .the
( 11 · tim to an attemp o massive backlog of cases pending in law Courts. Particularly, they are expected
ii) persons who fe a v1c be arded compensation as a to substantially reduce the number of underlrial prisoners languishing in
"d d I"gible to aw
(iii) persons who are cons1 ere e I fr the amount of fine payable by different jails as a vast majority of them may be found not guilty and therefore,
victim of crime from the State or om
set free thereby reducing the expenditure as well as burden on Indian prisons.

(iv) the
the accused; .
close relatives, so~s daughters, h usb and/ "'·ife and father,
. mother The scheme envisages setting up of an average of five FfC's in each district
of the country. The statewise allocation has, however, been done keeping in
etc. of the victim of crime. f interim relief and view the pendency record of cases and the power to make appointment of Judges
. . .d compensation as a me .•sure o . . :in Fast Track Courts has been vested in the High Courts.
These victims are pa1 . rehabilitation and re-sociahsahon.
efforts are being made for their ubra Chakravarty, AIR 1996 SC
With the setting up of FfC's, the work load of Sessions Court is reduced
Bl . State AIR 1995 SC 1935 ; Bodhisatvla997GaSCuta6m1;: S~ELI v. Commr. of Police Delhi, cons;derably. As the Sessions Court has to do original work under more than
1. a raJ v. ' •'W t Bengal AIR ' · 000 SC 2083 etc
AIR 1990 SC 513; State oJ
f
322; D.K. Basu v. State oJ ., p v Challa Ramakrishnan Reddy, AIR 2
· · · Ii d Criminal Justice Reforms
(2004) head~ by '".vo dozen different Acts, it never has the time to cope up with all that, with
·tt Report on Po ce an the result appointment of Special Judge remains in abeyance for years. This
2. Malimath Co~, ee rt of Kamataka and Kerala. . 1 er problem has been relatively sorted out by setting up of FTC's.
3_ former C.J. of
Ratan Singh Highof
v. State Cou
Pun1a , b, (1979) 4 SCC 719 per Justice V. R. Krishna y .
1. Supreme Court Judgment, dated May 6, 2002.
 JURISPRUDENCE AND LEGAL THEORY
612
\
Des ite these measures, criminal reforms in criminal justice system ~re
p t · rn fear in the minds of criminals, but also to restore faith
needed not on1Y o ms 1
• ·
. • ·
t · th ·udiciary Presently inefficiency m cnme mves 1ga ion
r r
of the mnocen m .e 1 · ' h · f r and
and failure to produce clinching evidence leads to lower t e 1ma;ge o ~~ ice
investigating officials. Even the highest investigating agency C.B:I. 1s u~~er
· d d by the Supreme Court for its nexus with pohhcal
attack . and repnman e •
leaders· in power.
. The hi h and mighty in the society often find it eas! to_ esca~e !he
· g of their crimes owing to their ability to subvert trme mveshgation
consequences f I It is rather unfortunate, that the spirit of public
and the due process o aw. . . dh ·
service and of respect for the rights of individuals and bemg 1ust an umane~ is
• . th rt·cians bureaucrats and those who are concerned with
wanting among e po 1 1 ' 1· ·
· of the country The present vicious circle of poor po 1cmg, poor
th e governance · . d nd low
investi ation, half hearted prosecution, 1 hostile witness syn r?~e a . .
convic~on rate is no less responsible for the miscarriage of _cnmm~l 1ushce
stem. Restoration of human right values and rule of law 1s poss1~~e only
5 concept of hurr.an rights. Further, India is now a party to sixteen International
t~rough good and credible governance which transparency, accountab1hty and
. . 2
openness in its fun ctiomng.
Human Rights Jurisprudence : The Indian Context
It has now been universally accepted that human rights are more than_ a
mere collection of socio-economic and political ri?hts. T~~y are dyn;7-1c,
juridical as well as moral, cultural and philosophic conditions. that e me
intrinsic value of a man and his inherent dignity. Robertson def~e~ ~uma:
rights as, "those basic rights to which ev~ry man, woman and ~h1!d l~~~g ~is .
this earth is entitled by virtue of his bemg born as a human . em_g. n Human Rights Comm_ission in the State (Section 21).
• • these rights lay down the standards of general application for all
~~:~:nbeings in all times and in all circumstances, thus setting the no~s for
advancement of the human society. Human rights can generally be deh~ed as
those rights which are inherent in our nature without which we cannot ive as
human beings.4
Human rights are universal legal guarantees J:>rotecting hu~a~ being;
a ainst actions and omissions that interfere with hum~n d1gmty an
f!ndamental freedoms of individuals. Human righ~s. also mclu~e a set. of
ndards which guides publk authont1es, and agamst which
per formance s ta , · can be
governments and their functionaries, as well as other re 1evant a~e~c1e~ b n
assessed and held accountable. The universal nature of human ng ts as ee
1. Examples are, 2G Spectrum case, Commonwealth Games Scam, Fodder Scam, etc.
2. Adrninistrative Reforms Commission Second Report PP· 66 & 7o.
3. Robertson, A.H.: Human Rights in the World, (1972) p. 175.
4. United Nations, Human Rights-Questions & Answers (1987).
RECENT TRENDS IN INDIAN JURISPRUDENCE 613
affirmed by various States, which have satisfied the relevant international
treaties and Conventions of human rights. 1
Human rights are accorded to individuals and groups so as to enable them
to live a dignified life, and to organise society in such a way that these
objectives are effectuated.
Human rights were for the first time recognised by the General Assembly of
United Nations in 1948 in the name of Universal Declaration of Human Rights .
The Universal Declaration of Human Rights is the first segment of the
International Bill of Human Rights which includes International Convenant on
Economic Cultural and Social Rights and International Convenant on Civil and
Political Rights adopted by the General Assembly in 1966 and came into force
on 1976.
Indian Position
In the Indian context, it may be stated that Parts III and IV of the Indian
Constitution2 along with Preamble of the Constitution already embody the
treaties relating to Human Rights including the International Covenant on
Economic and Social and Cultural Rights and Civil and Political Rights-it
includes International Convention on Racial Discrimination, Covenant on
Rights of Child and the Political Rights of Women, Slaves Convention etc. It
has set up a National Human Rights Commission (NHRC) under the Protection
of Human Rights Act, 1993 for implementation of human rights. The Act
authorises the NHRC to act suo motu or on any complaint made to it about
violation of human rights. The complaints received by the Commission mostly
relate to custodial deaths, rape, domestic violence and sexual harassment of .
women, child labour etc. The Act also provides for establi~hment of a similar
The NHRC has to perform mainly twofold functions, namely, (i) protect
persons against human right' s violation by individuals, groups or State and its
agencies, and (2) promote awareness about human rights among the masses.
The onset of democracy in India and emergence of the idea of welfare State
led to the trend of guaranteeing basic human rights in the constitutional law. It
presupposes that everyone has a right to life, liberty3 and security of person,
freedom from slavery or servitude,4 cruel or inhuman or degrading treatment
and arbitrary arrest5 and ensuring equality before laws and equal protection of
1. Professor Manoj Kumar Sinha, Director ILI; Editorial ILI Newsletter October-December
2013).
2. Part III provides for Fundamental Rights while Part IV contains socio-economic rights. The
rights in both these parts are complimentary and supplementary to each.
3. Article 21, Constitution of India.
4. Article 23.
5. Article 22; See also Charles Shobraj v. Supt. Central Jail, (1978) 4 sec 104; T. V. Vetheswaran v.
State of Tamil Nadu, (1983) 2 sec 68; Neelabati Behera v. State of Orissa, (1993) 2 sec 476; D.
K. Basu v. State of West Bengal, (1997) 1 sec 426 etc.
614 JURISPRUDENCE AND LEGAL TIIEORY
laws. t It is therefore, evident that the Indian system from the very inception of
the Constitution has responded well to the human rights activism. The
Preamble of the Constitution which is wedded to the idea of socialistic pattern
of society has ensured social, economic and political justice; liberty of thought
expression and bel~ef, faith and worship; equality of status and opportunity to
all without any ·discrimination as to race, caste, ~ex, religion, place of birth etc.
Untouchability and titles of all kinds barring military and academic
distinctions stand abolished.2 The Constitution also provides for freedom of
speech and expression, peaceful assembly.3 and freedom of profession, practice
and propagation of religion4 and educational and cultural rights. 5 The
Constitution provides teeth to these rights by making them enforceable by
direct access to the Supreme Court6 or the High Court.7
The Apex Court has opened new vistas .of human rights movement by
liberally interpreting and expanding the meaning of basic human rights.
Article 21 providing right of life and personal liberty has been interpreted so
liberally that now it covers within its ambit a variety of rights that go to
constitute personal liberty of man. The Supreme Court has in a number of cases
held that life does not mean a mere animal existence, it includes all those
rights that make human life worth living. The right to live with human
dignity has to be looked in a wider perspective so as to include within it
protection of health and strength of workers, men and women and children
against abuse,8 opportunities and facilities for child to develop in a healthy
manner and in condition of dignity, educational facilities and human conditions
of work and maternity relief.
There are a number of cases where the concept of human rights has been
given a new dimension through judicial activism. Thus right to life enshrined
in Article 21 now includes right to adequate nutrition, clothing and shelter,9
right to wholesome environment,10 right to speedy trial,11 right to free legal
aid to poor, 12 right to know, right to compensation,13 right to release and
rehabilitation of bonded labour14 etc. Again, disposing of a case on noise
1. Article 14.
2. Articles 17 and 18.
3. Article 19.
·4_ Article 25.
5. Articles 29 and 30.
6. Article 32.
7. Article 226.
8. Gaurav /ain v . Union of Delhi,AIR 1997 SC 3021.
9. Francis Coralie v. Union Territory of Delhi,, AIR 1987 SC 746.
10. M.C. Mehta v. Union of India, AIR 1987 SC 1086._
11. Husainara Khatoon v. State of Bihar, (1980) 1 SCC 91; see also R.ajdeo Sharma v. State of Bihar
(1998 SC)
12. M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 155.
13. Rudal Shah v. State of Bihar, (1983) 4 SCC 141; See also SAHELI v. Commissioner of Police,
Delhi, (1990) 1 SCC 422.
14. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802; See also Bairam v. State of Madhya
Pradesh, AIR 1990 SC 44; Mukesh Adwani v. State of M. P., AIR 1985 SC 1363; Bandhua Mukti
M orcha v. Union of India, (1991) 4 SCC 177 etc.
RECENT TRENDS IN Il-..IDIAN JURISPRUDENCE 615
pollu~on, Calcutta High Court; while refusing permission to a religio~ society
for usmg a loudspeaker observed that no authority can grant permission for such
use and make the public captive listeners. The Court further held that the
people have the right to sleep, and maintain· silence under Article 21 of the
Constitution. Thus judicial activism is playing a decisive _rgle .in widening the
scope of Article 21. · · .
Expressing its concern for the rising incidents of sexual assaults on women in
blatant violation of right to life under Article 21 of the Constitution, the
Supreme Court in the case of State of Punjab v. Ramdev Singh 1 has ruled that
sexual crime against woman, i.e., rape. should be dealt with sternly and
severally because it is a crime against basic human· rights and also violative of
the victim's most cherished fundamental rights to life and liberty. The Court
held that "socially sensitized Judge is a better statutory armour in cases of
crime against woman than long clauses of penal provisions containing complex
exceptions and provisions." According to the Apex Court, sexual violence apart
from being a ·dehumanising act, is an unlawful intrusion on the right of privacy
and sanctity of female. Rape is notonly a crime against the person of a woman
but it is a crime against entire society~ . Reiterating its judgment given in Shri
Bodhisatwa Gautam v . Miss Su bra Charkrabarty; 2 the Court observed that
rapist not only causes physical injuries but more indelibly leaves a scar on the
most cherished possession of a woman, i.e., her dignity, honour, reputation and
last but not the least, her chastity.
Emphasising the need for protection of working women by their male-
colleagues or officials at work-places, the Supreme Court expressed a view
that there should be an effective legislation in India to curb sexual harassment
of women. Finally, in Vishakha v. State of Rajasthan, 3 the Apex Court laid
down certain guidelines to remedy the. legislative vacuum on this issue. It
defined "sexual harassment" as including any unwelcome sexually determined
behaviour (whether ·directly or by implication) like physical contact and
advances, a demand or request for sexual favours, sexually coloured remarks,
showing pornography and any other unwelcome physical, verbal or non-verbal
conduct of sexual nature". As a result of this judgment, any woman employee
who is subjected to sexual harassment of any kind can take recourse to initiating
criminal proceedings, disciplinary action and also seek compensation from the
guilty employer or other person responsible for the sexual harassment.4
It is gratifying to note that the broad guidelines laid down in Vishakha's
case were applied by the Bombay High Court in 1998 in the case of Shehnaj
Sani who was working as a ground hostess in Saudi Arabian Airlines at
Bombay and was sexually harassed by her employer. The High Court directed
the employer of Mrs. Sani to reinstate her with back wages for 13 years durlng
1. AIR 2004 SC 1290.
2. AIR 1996 SC 922; See also Chairman, Railway Board v. Mrs . Chandrima Das, AIR 2000 SC
988.
3. AIR 1997 SC 3011.
4. Medha Kotwal v. Union of India, .2004 (5) SCALE 573.
616 JURISPRUDENCE AND LEGAL THEORY
- which she was rendered unemployed due to wrongful termination of her
services by her boss. This judgment depicts the onset of a new trend in the
protecti~n of human rights and dignity of working women in India. 1
The Supreme Court in Apparel Export Promotion Council v. A K. Chopra 2
emphasised that .in cases involving violation of human rights, the Court
should be alive to the international convention and apply the same in deciding
cases particularly those relating to violation of right to gender equality and
right to life and liberty including sexual abuse and harassment of female at the
work place. In the instant case, the delinquent, a superior officer was found
guilty of molesting and of having tried to physically assault a subordinate
female employee. The Court held that the sexual harassment of the· female
subordinate by the delinqu~nt was ~holly against moral sanctions, decency and
therefore, mere want of actual assault or bodily touch or contact does not render
the punishment of removal of the delinquent from the service wholly
unjustified. In other words, the conduct of the delinquent does not cease to be
outrageous as it clearly amounts to sexual harassment. The appeal was,
therefore, dismissed.
Like sexual violence and harassment of women at work place, domestic
violence against them is undoubtedly, a serious human rights issue, not only in
India but all over the world. The Vienna Accord of 1994 and the Beijing
Declaration and Platform for Action (1995) had deliberated on this very
crucial problem of viole11ce against women within her family and urged the
member-States to enact protective laws to tackle this problem which has
hitherto remained largely invisible in the public domain.
In India, Section 498-A of the Indian Penal Code provides that where a
woman is subjected to cruelty by her husband or his relatives, it will be a
criminal offence punishable by law. ·But there was no civil remedy provided to
protect women from domestic violence. Therefore, the 'Protection of Women
From Domestic Violence Act, 2005, was passed which. came into force w.e.f
26th October, 2006 to safeguard the rights guaranteed to women under Articles
14, 15 and 21 of the Constitution and to provide for a remedy under civil law.
The highlights of the Act may briefly be stated as follows :
(1) Any harm or injury to health, safety, life, limb or well-being or any
other act or threatening or concern etc. by any adult member of a family
constitutes domestic violence.
(2) If any woman who is or has been in a domestic family relationship, is
subjected to any act or domestic violence, she can complain to the
concerned protection officer, police officer, service provider or
magistrate.
(3) She has right to be informed about available services and free legal
services from the protection officer, etc.
1. Paranjape, N.V. : Criminology & Penology, 14th (Ed.2009), p. 189.
2. AIR 1999 SC 625.
RECENT TRENDS IN INDIAN JURISPRUDENCE 617
(4) Shelter homes and medical facilities can be provided to aggrieved
woman.
(5) Interim compensation can be made available to the aggrieved woman.
( 6) Proceedings of the complaint can be held in camera.
(7) The aggrieved woman has right to reside in shared house);,.old.
(8) Monetary relief can be given to the aggrieved woman to meet expense or
loss. ·
(9) Appeal against Magistrate's order may lie to Sessions Court within 30
days.
(10) The opposite party (offender) may be punished with imprisonment
upto one year or a fine of Rs. 20,000 or both for breach of protection
order.
NHRC's Intervention to protect Human Rights Violations
NHRC's intervention in some of the human rights violation cases
illustrates the yeoman service it is doing for the cause of human right
protection.
In a suo motu action taken by NHRC which relate to death of a 20 year old
girl Sarika occurred in Madhya Pradesh in 1997 due to negligence of Indian
Railways, the Commission ordered a sum of rupees one lakh to be paid to the
parents of the deceased as compensation.
In yet another case, NHRC ordered the State Government of Bihar to pay
compensation of rupees ten lakhs as interim relief to the widow of a Ranchi
based businessman who was negligently shot dead by the State Police in 1997.
The State Government pleaded that since the guilty had already been
punished, the payment of fine was uncalled for. Moreover, it would be an
unncessary burden on the State exchequer. But NHRC rejected these contentions
and maintained its order of fine:
Again, in a case of human rights violation by the Border Security Forces
(BSF), the NHRC intervened for the protectjon of on Mohd Rashid Ali who
was a victim in the case. In 1995, he bought a bicycle and during his very first
ride, it was taken away by BSF personnel on the apprehension that he was
planning to sell the bicycle in Bangladesh. Ali denied the allegation and
despite his repeated requests that the bicycle was purchased by him and he
was its genuine owner, it was not returned to him. Thereupon, he complained to
NHRC with a copy of receipt from the seller of the bicycle. The Commission
ordered the restoration of the bicycle to Ali and reprimanded BSF for its
irresponsible action. 1
The aforesaid discussion reveals that NHRC and the judiciary are playing
an effective role in implemef!tation of human rights. But despite this, the
number of human rights violation cases is constantly increasing,2 particularly
1. Human Rights News Letter, August, 1998.
2. NHRC v. State of Gu/arat, (2003 SC) also known as Best Bakery case.
 618 JUR$PRUDENCE AND LEGAL THEORY
in the States of Biha:r, Uttar Pradesh, Jharkhand and Naxalite areas.
Therefore, it has become necessary to enforce.some effective me~sures to check
these violations and ensure better implementation of human rights.
Further, the use of nuclear weapon in modem warfare is causing destruction
of human lives, which constitutes a serious threat to the very existence of life.
Therefore; there has been emergence of new hu~an right, viz., right to peace
and survival in order to protect human race. This right has to be interpreted in
a wider perspective and it includes a pollution-free environment and conducive
·'atmosphere for the survival of mankind.
Suggestions for Better Implementation of Human Rights.
There is need to create public awamess about human rights specially among
women and rural inhabitants for their effective implementation. The media
such as radio, television, newspapers etc. can play a very useful role in
popularising human rights movement lo the grassroot level. Human rights
education in schools, colleges .and universities may also be helpful in creating
awareness about these rights among the younger population. Likewise, human
right education to police and defence personnel as also the jail authorities will
not only help controlling the violation of human rights but also help in their
effective implementation. It is heartening to note that some police training
centres have already taktn initiative in this direction. 1
More recently, the criminalisation of politics and the nexus between the
political leaders and criminals has become a major factor for increase in human
rights violation cases. Therefore, a code of coduct for politicians is perhaps the
need of the time. To make a beginning, entry of persons with criminal record or
criminal background in politics should be compeletely barred by amending the
Representation of People's Act, 1951. Though the Election Commission of India
has made .some efforts to curb this menace but in the absence of a positive
response from the political parties, the situation still remains. more or less the
same.
Non-governmental organisations (NGO's) can play an important role in
giving a new shape to human rights jurisprudence. The World Conference on
Human Rights, 2 1993 had emphsised the need for actjve role of NGO's in
checking human dghts violation and promoting human rights consciousness
among the masses.
As rightly pointed out by Justice Sujata Manohar, member NHRC and
former Judge of the Supreme Court of India, right to development is an
inalienable human right by virtue oft which · every human person and all
peoples are entitled to participate and contribute and enjoy economic, social,
cultural and political freedoms. Therefore, there is need to shift the focus on
human well-being based on enjoyment of hurrian rights as the goal of human
. . .
1. NHRC has devised a three-tier syllabus for various ranks of the police personnel ranging
from constable to senior officers. This is being taught in Police Academies.
2. Vienna Declaration and Programme of Action, {June, 1993).
RECENT TRENDS IN.INDIAN JURISPRUDENCE 619
development as clearly set out in the U.N. Dedaration on the Right to
Development, 1986 which describes development as a comprehensive economic,
social, cultural and political process with the ultimate object_ of improvement
1
of the life of people and well beipg_~f the sodety.
India, like any other South Asian country stands at the cross roads between
hope and ·dispair even at the ·dawn .oLthe 21st century; ~ope because treme~do~s
progress has been made since. the :country became mdep~ndent; an~ ~1spa_u
because this progress has bee1:i- neither adP.quate nor equitable. India 1S still
identified as the most · poorly governed country because of :wide-spread
illiteracy, and lack of
gender sensitivity. 2
Since development and human rights are inter-linked together, the human
rights agenda should focus on reducing inequality, volnerabili~ to ill-health,
natural disasters and violence and lay greater stress on promotion of gender
equality and strengthening of basic social services. ·
These innovations may prove to be very useful in giving a new dimension to
the Indian human rights jurisprudence of the twenty-first century.
Rule of Law and Good Governance
The term 'governance' implies the manner in which power is exercised by
government in managing country's social and eco1:omic _reso~rces. ~he concept ,_
was subsequently expanded to include other d1mens1ons mcludmg human
development and realisation of human rights. The essence of good govern~ce
lies in protecting, preserving and strengthening social an~ comm~nal fabnc of
the society. It is anchored in the deepening of democratic and liberal values
and assuring people an effective, honest, equitable, transparent and
accountable system of governance.
Good governance is the foremost pre-requisite for rule of la:W and ~ctio~al
democracy where rights of people are secured through fair and 1mpa~hal
administration of justice. It is however, unfortunate that as of now, the ~-anous
political parties and their leaders ruling !he diffe_rent S~~tes a~e _us1!1~ !he
bureaucracy and the police to achieve theu populist pohhcal aims v1hatmg
the process of governance to the detriment of civil society. The Governme~t
agencies are highly politicized and used by the ruling politicians to serve th~tr
partisan ends. The criminalization of politics has undermined p~opl~'s faith
and confidence in the Government. A host of people's welfare legislations are
pending in the Parliament and the State Legislatures for rears but la~k- of
politiq.11 will is the major in road in passag~s of the~e Bill~. _The u~tmng
efforts of the civil society under the leadership of soe1al_. act1v1st Shn A~na
Hazare and his non-violent civil disobedience movement during the precedmg
two years (2010-12) have fallen to deaf ears and the ruling governments
commitment to pass the so called Lokpal Bill is still pending before the
Parliament.
1. Quoted from 45 JILi (2003) p. 163.
2. Ibid p. 164.

620 JURISPRUDENCE AND LEGAL 11-IEORY
1 from grass-root level. The reforms in police· setup is essential for the sake of
The rule of law and justice to common men is being severely erroded due to
corruption rampant throughout the country, at almost all levels of public life.
Even !he top leade~s could not resist the temptation of becoming 'millionaire.'
overnight by resorting to corrupt and unlawful practices. The Vora Coimmittee
(19~3) talking ab~ut_ the nexus between politicians, bureaucrats, police,
bus~essman and cnmmals observed that money power is used to organise crime
syn~1cates ~t local as ~ell as national level, which is specially more active
?unng .elections. Corruption cannot be wiped out unless this nexus is broken. This
1s possible by providing functional and professional autonomy to bureaucracy
and_ police whi.ch are two vital wings government. Particularly, during the
penod _of ~lec~io~s, . the political. parties in power try to woe the voters by
~h.ow~nng mdiscn~mate concessions/benefits on them unmindful of the gross
tnJustice thereby bemg caused to a substantial segment of the society. Raising
_ the r~tir~ment_ age limit from 60 to 65 years for government employees,
sancho~ung_ ~1thheld arrears of D.A'., free ration distribution, raising tax
exemption hm1t etc. are only a few examples of such nafarious tactics.
An?ther gray area ~f m~sgovernance is safety and security of women, girls
and mmors from anh-soc1al elements and criminals. Though the ghastly
Damini Gangrape incident of 16th December, 2012 had generated some heat
~n~ mass agitati~n agai~st the Government for its failure to prevent such
mcid~nts but subsided as 1t usually happens with the passage of time. Though
react~n? sharply to public senti:-nents, the Government amended the rape la~
prov~d~ng for death sentence to rapists where necessary. But these stringent
pro\?s1ons .have hardly yielded any positive results on the rape cases,
sp~c1ally with those of minor girls and child-girls are on a constant rise as
evident from the rel:'or~s of the daily ~ewspapers. The reason being that law
alone cannot ensure JUshce unless there 1s a change in the mindset of the society
for such heinous crimes. As it is, India today stands at the cross-roads. It is for
our national and political le~ders to decide as to what kind of civil society do
we really want! The founding fathers of the Constitution did their best in
giving us a comprehensive constitutional documents with all the basic
cc:,mponents of a functional democracy and good governance. It is, however, a
different matter that the succeeding 'political leaders' used or rather misused
the power of Parliamentary supremacy for their own self aggrandizement~
They. refra_in from making l~ws, which are likely to affect them -:1dversely.
~e lmg_ermg on of Lokpal Bill, Women Reservation in Legislative Assembly
Bill, are JUSt a couple of examples of this trend.
. What India really needs today in a committed brand of new generation
legislators and bureaucrats dedicated to the welfare of the society and a
s~stem of govem~nce which is transparent and accountable to the people. The
Right to Information Act, 2005 is a commendable attempt in this direction but
the stereo-type functioning of the government comes in its way of smooth
implementation.
The !aw and order _situation in !he _country is no better because of people's
general distrust for pohce. The begmnmg of police reforms has to be started
RECENT TRENDS IN INDIAN JURISPRUDENCE 621
-good governance and vibrant democracy. ·
The people of India optimistically look forward for a change in the ·
existing pattern of_govemance with maximum transparency and openness and
the establishment of rule of law in its true spirit. As the saying goes, "there is
always a dawn with the dark".
The Modem Feminist Jurisprodential Trend
It is well kriown that law is a dynamic concept changing with the
development and changes in social; economic and political relations and
advancement in various fields of knowledge which have their impact on law.
Law therefore, needs constant there examination and re-interpretation thereby
adding new dimensions to the existing old legal theories and jurisprudential
thought. The social and cultural developments of the modem era have led to
the emergence of feminist legal concern for law which has assumed
·considerable importance in recent years. It has assumed the form of a crusade
against sex-based discrimination supporting the rights of women on the ground
of inequality of sexes. the advocates of feminist theory argue that gender
ingenuity has an adverse impact on societical goods as it deprives women from
participating in social, economic and political as also cultural activities and
thereby affecting society as a whole.
Though most of the Anglo-American writer prefer to discuss feminism, i.e.
treatment of women under the legal system under the title 'feminist
jurisprudence' or 'feminist theory' but there are others whos serious objec~ to
this view on the ground that it is nothing more than as movement aga1~st.
patriarchal society and condemns injustice, sckep,tic~sm and_ m~scuhne
legal approach which adversely affects womens mtegrahon m total
developn1ent.
Be it_as it may, there is no qoubt that faminism seeks to pr~v~nt oppressi?n
and exploitation d women in society, workplace a~d w1th1_n the family
through the instrument of law and bring out a change m the mmdset of men
towards women·. As rightly pointed out by Kate Millet, women are relegate~ to
an inferior status in the society. Despite adequate provisions under van~us
1aws, they have been discriminated on the ground of sex for ~entune~.
Deprivation of women of their ba~ic human rights and equal status .':1th men 1s
a historical phenomena which dominates the life of the commumhes around
the world.1
Expressing an extreme feminist view the noted French writer Simone de
Beavoir observed that in a patriarchal society, women is looked by m~n a: a
sex object and no more. They are differentiated with reference to men as mfenor
with socio-economic and cultural prohibitions and restrictions imposed2on them
which are irrational and unreasonable and result of gender inequality.
1. Kanewistz W.L. Women & the Law: Unfinished Revolution (1969) p. 1.
2. Simone de Beanvoir : The Second Sex (154)
 622
JURISPRUDENCE AND LEGAL THEORY
RECENT TRENDS IN INDIAN JURISPRUDENCE . 623 -
Based on· the nature of oppression th \
s_frategies to combat gender inequalit N atHwol men h~ve to face and legal International Women's Year.1 The object was-to ensure women's integration in
Y, ancy o mstrom observed : all sectors of national life and launch a crussade against gender-bias.
"Feminism is an attempt to under . d ,
coherent and systematic w . . stan women s subordinaton as a Elimination of Gender Discrimination in India
aspects of insanit su . . ay thQt mte?r:ites class and sex, as well as other India being a party to United Nations Conventions and treaties, is
aim of using this :nal~~/tsorhacle, el.tbhmc1ty or sexual orientation, witn the committed to make all efforts to eliminate discrimination against women and
1 e p 1 erate woman." .
offer them opportunities in sharing equal power with men and ensure their
She prefers to term this as socialist i . . . . . . empowerment. Even since the independence of India, concerted efforts are being
underlying the societal norms which ' a:m~1sm ansmg out of ?'ultiple biases
predominantly patriarchal society h. he a~ed on gender differences in a made towards elimination of discrimination against women and ensure them
intervention. . ' w Ic nee to be addressed through legal equal status with .men in real sense.
The Constitution of India envisages a just society with equal opportunities
Emphasising the need for end . . . . for all without any discrimination based on gender and ensure justice, social,
discrimination in all to L gJ ~r equality and ehmmation of sex
rms, ate ushce V R Krishn I h economic and political for everyone. 2 Some of the constitutional provisions
arderent supporter of wome , . · · a yer, w o was an which seek to implement the objective of gender just society are as follows : -
discrimination ag·am· •t n s rh1ghts, commented that instituflonslised
.;, women w ich · "th h ·
must be forbidden by . rovidi~ IS . ~ entage of human wrongs" ( 1) Right to equality before law and equal protection of law, [Art. 14].
sharing the developTn pt g opportunities to women in shaping and (2) Prohibition of discrimination on the ground of sex; [Art. 15 (1)].
u,en process of the nation".
International Efforts to elbninate G end. er Inequa1·1ty (3) State can make special provisions for promoting and safeguarding the
interest of _w omen and children; [Article 15 (3)]
International concern against -b . . . . .
rights of women finds expressi . sex _ased d1scrurunahon and protection of (4) Affirmative action or reservation for women (Article 16]3
Article 8 of the U N Chart on m ~danous U. N ~Conventions and resolutions (5) Reservation of seats for women in Panchayats and local bodies and
· · er prov1 es th t "U N ·
on the eligibility of men and . a : . · sh~ll place no restrictions municipalities (73rd and 74th Constitution Amendment, 1992)
conditions of equality and its p _w~meln tod part~cipate m any capacity under ·
· rmcipa an subs1d1ary organs." ( 6) Just and human conditions of work and maternity benefit for women
The Universal Declaration of Human Ri . (Article 42).
norms of non-discriminatt d ght (19~8) which set out general (7) State to endeavour to ensure living wages etc. for workers including
discrimination and laid dowon ma.~ sex one of the impermissible ground of women [Article 43).
subsequently reiterated in Ant~ov1;10; for equal protection of women. This was .
on civil and political Rights r
Covenant on the Economic
;~6e:
S.
an~ )A.3 ~nd 26 of the International Covenant
l d C rhcles 2_ (2) and 3 of the International
(8) Equal pay for equal work for both men and women [Article 39 (d)]:4
(9) It is one of the fundamental duties of every citizen of India to
, oc1a an ultural Rights, 1966. denounce all practices which are derogatory to the dignity of women
The International Labour Or . . [Article 51'.°A (L)].
equal remuneration for work f gantahon (ILO) adopted the principle of
0
resolution in 1951. equa value for men and women as a policy Besides the aforesaid provisions of the Constitution some other legislative
measures protecting women against gender discrimination are :
The General Conference of the U . (1) Child Marriage Restraint Act, 1978.
Organisation passed a resolution a ai . ~ _Ed~c~t10~al, Cultural and Scientific
matters of education on December ~4 nst iscr~mmat~on on_ the ground of sex in (2) The Commission of Sati (Prevention) Act, 1987.
force on May 22, 1962. . , 1960 at its Pans Session, which came into (3) Indecent Representation of Women (Prohibition) Act, 1986.

International Women's Year, 1975 (4) Immoral Traffic (Prevention) Act, 1956.
With a view to strengthenin I (5) The Dowry Prohibition Act, 1961.
enabling women to be equal ~ w~r d peace and promote gender equality 1. U. N. Resolution No. 3010 (XXVII) of December 18, 1972 See also UN General Assembly
the General Assembly of thep~r ./~ l~ t~e developn:ient process of the nation, Convention on Elimination of All Forms of Discrimination against Women (1979) effective'
. me ations proclaimed the year 1975 as the from 1981.
---:--:-:-----__:_.____ 2. Preamble of the Constitution of India.
l. Nancy Holmstrom of Rut u . . 3. State of Andhra Pradesh v. Vijay Kumar, AIR 1995 SC 1648.
gees ruvers1ty, New York has called at as feminist materialism.
4. Ranbir Singh v. Union of India, AIR 1982 SC 879.
 624 JURISPRUDENCE AND LEGAL THEORY
(6) The Equal Remuneration Act, 1976.
(7) The Medical Termination of Pregnancy Act, 1971
(8) · The Maternity Benetit Act, 1961.
(9) The Pre-natal Diagnostic Techniques Act, 1974.
(10) The Protection of Women from Sexual Harassment at workplace Act,
2013.
(11) The Anti-rape Criminal Law (Amendment) of I.P.C. 2013.
(12) The National Commission For Women Act, 1990.
National Commission for Women
· The National Commission for Women provides protection to women against
atrocities and also arranges counselling for women to solve their problems. It
also arranges workshops to generate gender sensitization among the public
agencies such as the police, prison and medical staff etc. to eliminate ill-
treatment or exploitation of women in their custody. The Commission extends
active support to schemes like Beti Bachao, Beti Padhao (Protect Girl Child,
Educate Girls); anti-dowry programmes, protection of women against domestic
violence and sexu_al harassment of women at workplace etc.
Protection to Women under Criminal Law
With a view to providing speedy relief to neglected wives, Section 125 of
the Code of Criminal Procedure, 1973 contains provisions for maintenance of .
wife. The purpose of this relief is to advance the cause of social justice1 to
destitute wife or hapless children or parents.
The provisions of the Indian Penal Code relating to offences against women
have been suitably amended 2 so as to provide for severe punishment to the
perpetrators of such crimes. The Nirbhaya Episode (Delhi Gang Rape case) of
December 16, 2012 shocked the nation and more voices began to be raised on
gender violence and everyone is passionately engaged in the debate on women's
safety The short 46 minutes documentary film Daughters of Mother
India produced by Vibha Bakshi on Delhi Rape case shows that there is
need for change in mindset of the police and the judiciary, and the society as
a whole. The film is being screened all over India as a part of programme
to stop violence against women~ People have zero trust for police and they
blame judiciary for laws delay and its/ dialatory procedure which provides
ample scope for manipulation by defence lawyers in sexual harassment and
rape cases.
Judiciary's response to feminist Jurisprudence
The judiciary's favourable response to feminist theory is reflected in its
exercise of power of judicial review in gender administration cases. It is making
1. Bodshah v. Smt . Urmila Badshah Godrse, AIR 2014 SC 869.
2. Criminal Law (Amendment) Act, 2013, See Sections 354-A, 354-B, 354-C, 354-D, 376-A,
376-B, 376-C, 376-D and 376-E, 509 as amended by the Act of 2013.
I .
RECENT TRENDS IN INDIAN ]UlUSPRUDENCE 625··
all efforts to take justice to women who have hitherto remained discriminated
and exploited -and deprived of equal justice with men due to male dominated
patriarchal pattern of society. •It is indeed commendable that the courts are
now adopting a firm stand against all forms of gender discrimination including
those of transgenders. Highlighting the need for a humanistic approach of the
court in cases involving women victims, Late:Justice, Krishna Iyer in Krishna
Lal v. State of Haryana, 1_observed that a socially "sensitized Judge is a better
statutory armour against gender outrage than long clauses of complex sections
with all the ·protections writ into it."
It may be noted that the ex-CJI H. L. Dattu had set up -a separate social
justice Bench of two Judges in December 2014 to play a proactive role in
expeditious resolution of social issues touching the . lives of the voiceless,
particularly the women victimised by men. The Bench sit every Friday
devoting two hours for pending PILs that raised a wide range of issues like
women trafficking tracing missing women and girls, rehabilitation of acid
attack victims and protecting women's dignity by reining in lumpen elements
who circulated pornographic material on-line. It also took up cases of women
who were forced into prostitution providing them safety and secured living
conditions. The CJI T.S. Thakur has decided to disband this social justice Bench
perhaps because of large number of human rights cases piling before the Court.2 .
He told senior advocate Colin Gonsalves who was arguing for redressal of a
alleged human rights violation case of Manipur (killings by Armed Forces)
that "the "Social Justice Bench no longer exists".
Feminist jurisprudence is all about treatment of women by the legal system
and judicial response to it has to be assessed through Court's pronouncement of
judgments in women related cases. Take for example, the Mathura Bai's case3
in which an illiterate dalit girl of 15 years of age was raped by constable
Ganesh while she was in police custody. Another constable Tukaram also tried
to rape her but could not because he was heavely drunk. Both of them were
mere held guilty of rape by the High Court But on appeal, .~he Supreme Court_
acquitted both the accuse':t ,holdi.ng that absence of any signs of resistance and
no external injuries on, _h ~r body showed that she had consented to sexual
intercourse. · · ·
In the case \_}f State of Kµm.ataka v. Krishnappr., 4 the accused who was 49
years of age, was found guilty of committing rape on a 8 years old gir! an<!_ was
sentenced to rigorous imprisonment for 10 years. On appeal, the H1gh Lourt
exhibiting lack of sensibility towards the victim of rape, relied the sentence to
merely 4 years.
Expressing concern for lack of gender sensibility the Snprem.:.· Coun in =,fate
of Punjab v. Rarndev,5 observed :
· 1. (1980) 3 sec 150.
2. Times of India (Delhi Ed) dated March 24 20H,.
..,_ Tukara m v. St11te of M oft:rrashtra, AIR 1970 SC 185.
4.. AIR 1996 SC 1393.
5 AIR 2004 SC 1190.
626 -JURISPRUDENCE AND LEGAL THEORY
.- "'An unmerited acquittal .~ f . rapist does no good to .the society. If the
:.pr()SeCUf:ion. h~ :Succee<;i~d ~- m~~g out .a convincing case for ~ecording a
· -finding as to the accused being gwlty, the Court should not lean m favour of
acquittal by giving weight to irrelevant an~ insignificant cir~stances ~r
>by resorting to' technicalities or by assurmng doubts and :g1vmg benefit
: thereof where none reasonably exists. A doubt has to be a reasonable doubt
and not an excise for finding in favour of acquittal. An unmerited acquittal
encourages and evolves in the society being on the prowl for easy prey, more
so ~henvictim of rape are helpless females or minor children."
Thus, the :Apex Court ·advised the Subordinate Courts to display greater
sense of responsibility and adopt a more gender sensitive approach while
disposing of cases of sexual assault and rape, particularly the girls of tender
age:
~; Adopting a pr~feminist approach, the Supreme Court in Jugendra Singh v.
Sta~e, of U, P.,l i1_1kr· ,ilia observed : - .- .
· · "Rape or attempt to rape is a crime not against an individual but a
crime which destroys the basic equilibrium of the s-ocial atmosphere. The
· ccmseqtiential death is more horrendous. It is to" be set in mind that an
. offence against the body of a woman lowers her dignity and mars her
reputation. It is said that one's physical frame is his/her temple. No one
· has any right of encroachment. An attempt for the momentary pleasure of
, the accused has caused the death of a child and had a devastating effect
' •:on her family· and in the ultimate eventuate on the collective society at
' large. When a family suffers in such a manner, the society as a whole is
compelled to suffer as it creates an incurable dent in the fabric of the social
milieu. T:he_ cry.of the collective has to be answered and respected and that
. is what exactly the High Court has done by converting the decision of
, a.cquittal_of that co:qviction imposed as per law."
· i~xpanding to scope for stringent punishment for the offence of rape three
new .sections, namely, Section 376B, 376-C and 376D were added in the Indian
Penal Code by .the .Criminal Law (Amendment) Act, 2013 providing that
accused who takes undue advantage of his official position as a public servant
and 'induces or seduces the female in his official custody to have sexual
intercourse with her will be guilty of 'custodial rape' punishable with
imprisonment of either description for a term which extend to five years and
also with fine-.
In Bodhisatva Gautam v. Subra Chakravarty, 2 the Supreme Court
explained the socio-legal implications of rape which according to it, "is not
only a crime against the person of a woman (victim ) but is a crime against the
entire society. To many feminists and psychiatrists, rape is less a sexual offence
than an act of aggression aimed at degrading and humiliating the women. The
1. AIR 2012 SC 2254.
2. AIR 1996 SC 922.
RECENT TRENDS IN INDIAN JURISPRUDENCE
of
rape laws:do not, unfortunately take care of social aspect the matter.~d are
inapt i~ many resp~ct~." There is nee~ for sensiti_z ing the . courts agairlst
depravity and brutahty m _rape c~ses. . _ · , ' · · ·· · . · · . · . ·
There are few .c ases which clearly reflect the judicial .trend .to .end sex b~d-
discrimination against women and respond to their problems and vows with a
humanistic approach. ..- . ·· · - . . ·· · : . .
' I~ the ultimate analysis it ~ay be said that Feminist .app~~ch aims
at protecting, preserving and strengthing the place of women in society
by deepening our democratic liberal values .. Women are natural home-
makers and if woman is respectfully empowered, her house. becomes .a
home. Women playing a subservient role to -the men folk should stop. , It
is rather unfortunate that women's reservation bi11 1 still remains to :·
cleared despite the fact that it has beE:n passed by the upper House. Hven.
President oflndia has lamented lack of safety and security for women ·which
is intolerable as women still continue to be exposed to violence. Therefore~·
there is need that the public should work together for women's empowerment.
The mindset of women should be empowered and the mindsets of our people
change to carry out the campaign on behalf of women whose voices are seldom
heard. 2 · · , · · . . .
Dalit Jurisprudence _ .
Dalit icon and architect of the Indian Constitution Dr. Bhim Rao
Ambedkar rigorously championed the cause of dalits in the Constituent
Assembly leading to insertion of constitutional provis~ons -relating to
affirmative action for the oppressed and untouchables. . - ·
- The term 'Dalit' has not been precisely defined anywhere. Broadly
speaking, it means those who are oppressed and \.:rushed to·the extent offosirig
their original identity. Dalits are otherwise referred . to as Harijans ~or
untouchables who have suffered oppression since centuries old caste .system .
prevalent in India.
Like 'dalits', the ·term untouchability is also not capable of any . precise
definition. It generalJy encompasses acts and practices committed against-
Dalits in diverse forms. As pointed out by Dr. B. R. Ambedkar, "the
untouchability is the notion of defilement, pollution, contamination and the
ways and means of getting rid of that defilement." It is a "p~rmanen~
hereditary stain when nothing can cleanse It is eventually linked with c~ste ·
system and social set-up based upon it. It is fundamentally of a religions or
political origin and a corollary of caste system in Hindu Society."
Constitutional Protection for Dalits
In legal or constitutional terms, dalits are known in India as Schedult.!d
Castes.
1. The Bill seeks to provide 33 % reservation to w_omen in Parliament and State L.>gislature:
2. President Shri Pranab Mukherjee speaking at the Nari Shakti Awards function held in
Rashtrapati Bhawan on Women's Day i.e. Tuesday the 8th March 2016.
 JURISPRUDENCE.AND LEGAL THEORY
628
--, _While Constitution refers to Scheduled Castes reservation in education,
employment- and politjcal institutions etc. it does not define the term
'Scheduled Castes'. However, Art 341 empowers the President to recognize
~astes, tribes, races etc. for the purpose of Constitution to be deemed to be
Scheduled Castes in relation to particular State or Union Territory. The
Constitution guarantees affirmative action for Sc~eduled Castes. Article 17 of
the Constitution refers to abolition of untouchability and its practice in any
form ~,s forbidden. The enforcement of any disability arising out of
untouchability shall be an offence punishable under the law.
Article 341 provides that there shall be a list of Scheduled Casles in
regard to a State or Union Territory and that list shall incldues all specified
caste::;, races or tribes or parts of groups notified in the Presidential List.1
The Central G.:i,-c: ·. XP~n: passed the Untouchability (Offences) Act, 1955 in
exercise of power under seco.t1d part of Article 17 and Article 35 (a) (ii), which
was renamed as the Protection of Civil Rights Act, 1976, which abolishes
untouchability in all forms. DP.spit~ its total abolition it is being still practised
with impurity. The lack of sympathy :md sensitivity even by Courts in lacking
the problem is obvious as evident from the fact that it is after long 42 years
that ·the first case2 came before the Supreme Court in 1983 to consider the
problem of dalits is untouchables.
The Parliament enacted the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1987 with stringent provisions to eradicate those
offences which are committed against dalits and ensure rehabilitation of the
victims of such offences.
- .
Article 243 (d) provides reservation -for d,alits in :·P anchayat Institution on
the basis of population ratio, out of which, at ieast 33 % must be reserved for .
Judicial Respons!! Protection of Dalits
The case of State of Karnataka v. Appa Babu lng,.,le, 3 is considered to be a
hi:;torical judgment on Dalit jutisprudence. The facts of the case in brief
were that Appa Babu and 40 others were tried for offence under Sections 4 and
7 of the Civil tights Act, 1955. Though the trial Court convicted all,
the appellate Court confirmed the conviction in respect of Appa Babu only and
. Jet free others. On appeal, the High Court of Kamataka acquitted all the
accused stating tfie reason that the evidence of prosecution side was
contradictory. The S-;..iprcme Court heard the criminal appeal filed by the State
of Karnataka and confirming the conviction by the trial court, observed as
iol1ows : -
"The charge against the respondents was that they restricted the
::::,_>mpfain,-=mt party by 5how of force from taking war from the newly dug up
Scare o_f k.arr:at,1k.ti \·. ,,··t•;p ,; Dt:~::u fn_qclel CrL App( al No. lt~ /1?f.? ,i:ci<lc·d ,n .i ~-~~2.
1
3. Ibid _
RECENT TRENDS IN INDIAN JURISPRUDENCE 629
bore w~ll on ground th:3-t they wer·e untouchables. The prosecution produced
four Witnesses. The Tnal and.appellate Courts on appreciation of eviJence,
reach~d a concurrent finding that the charge against respondent .(accused)
was proved beyond reasonable doubt." _ , -
The Apex Court reiterated that Article 17 of the Constitution, which is a ·
~d~ental ri~t has m~de. an epoch-making declaration that untouchability
is_ ab~l~shed _a~d its practice m any ~~rm is forbidden. The enforcement of any
dtsabibty ansmg out of untouchabihty shall be an offence punishable under
law.
_ The decision of the Supreme Court in E V Chinnaiah v. State of Andhra
Pradesh, 1 was based on positivist school of jurisprudence which added
significant dimensions to the ever evolving jurisprudence on affirmative action
in_ ln~ia. It laid_ down the la~ with regard to legality of providing reservation
within reservation on the basis of sub-categorization of dalits.
·The Supreme Court in State of Madhya Pradesh v. Ramkishan Balothia,2
made it clear that the main object of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 is to prevent exploitation of dalits by the
upper castes and enable them to live a life of dignity. The offences committed
un_der Section 3 (1) of the Act are non-bailable and therefore refusal to grant
bail for these offences would not be unconstitutional.
It must, however, be stated that the working of the Act for the past two
and a half decades has shown that it has failed to achieve its basic objective
as evidence from the number of acquittals under 'the Act, due to lack of
sensitivity on the part of courts. There is need for judicial review to be exercised
·,, .. .
wit~ i~sight into social values to supplement the social needs. The existing
social rmbalances are to be removed and social order readjusted through rule of
law. It is the bounded duty on the Judges to shape the progress of the law to
consolidate society and grant free access to dalits to public means and places
declared to public use. Dalits should enjoy the rights like any other individual
and Judges must interpret the laws to eradicate untouchability and to allow
dalits rights of equality .and social fntegration.
_ The Government on its part, is making all out efforts to bring dalits to the
main stream of the society At present the dalits population in India is nearly
20 crores. Various beneficial schemes for dalits have been launched at the
Central as well as the State level. These include policies called Scheduled
Castes Sub-Plan3 (SCSP) which were started in late 1970's. They are meant to
ensure that various ministries and departments should have a specific
Ludgetary allocation for dalits in proportion to their population shares. These
include Indira Avas Yojna for rural housing, scholarship for dalits upto matric
schooling, self-employmen_t schemes for manual scavengers, which have
1. AIR 2005 SC 162.
2. AIR 1995 SC 1198.
3. As many as 292 Schemes are grouped under Scheduled Castes sub-plan of which 26
schemes have direct relevance to Dalits .
630 JURISPRUDENCE"AND LEGAL TI-IEORY
proved beneficial to uplift dalits. More recently 'Dalit Chetna Yatra' are being
organised· to spread awareness about the governments various ·schemes for
·dalits. These Yatras will go to dalit localities and organise camps to create
awareness among them about the beneficial schemes, for their welfare and
:integration.1 . _ . A
000
. Agreements-Its kinds .......... :.......................466
1. The National Commission for Schedule Castes and Scheduled Tribes also provides
financial and other Assistance to Dalits for their upliftment.
INDEX
Absolute ownership .....................................456
Accession..........................................................448
Accessory acquisition (Accessio) .............458
Accessory rights.............................................406
Acquisition of ownerrh:p .............;.•.;.........44 7
Acquisition of possession...........................429
Act.· .....................................................................534
Acts in the law ................................................464
Acts of the law ................................................464
Act and event distinguished .......................535
Administration of social justice................287
Administrative law ............................. 238, 324
Administrative Tribunals ................. 115, 175
Advantages and disadvantages of
Administration of Justice ................... 2S5
Advantages and disadvantages of
precedent. ................................................. 3 64
Advantages and disadvantages of
law ............................................................. 221
Advantages of incorporation ....................517
Adverse possession .......................................429
Alf Ross ............................................................. 128
Allauddin Khilji... ............................................ 49
Allen, C.K ........................ 4, 6, 36, 53, 109, 129
Alienative facts .............................,................462
Alternative Dispute Resolution
(ADR's) .................................................... 611
Analytical positivism..................................... 4 7
Analytical School. ........................................... 24
Animus domini ................................................420
Animus possidendi .....................422, 425, 427
Antecedent and Remedial Law .................. 242
Antecedent rights ........................................... 403
Approach to the study of
Jurisprudence .............................................. 9
Appraisal ......................................................... 527
Aristotle ......................................... 146, 151, 231
Arnold T.W ................................................. 8, 126
A rthashastra ............................................. 74, 260
Attomment .......................................................430
AugustCompte ........................................... 10, 96
Austin ...........................4, 30, 31, 32, 33, 34, 52
(631)
. ,
Austin's classification of law ... '.·~·-······••.--~236
Austin's Definition 9f Ownership ...........440
Austinian theory of sovereignty ............... 195
Autonomic law. _ _ _ _ _ _...............240
Autonomous legislation............................... 325
B
Back-drop of Sociological
Jurisprudence ................................... ,....... 9 5
Basic features of Realist School ............... 122
Bearer Bond Case ......................................... .594
Beneficial ownership ...........:.......................451
Bentham................ ,. .............................25, 29, 193
Bentham's E~positorial and
Censorial Jurisprudence ....................... 25
Bentham's utilitarianism. .............................. 2 7
Bilateral Acts (agreements) ........................465
Binding force of Precedents ........................ 350
Biological Approach to evolution
of law and legal theory ......................... 70
Blackstone..........................................4, 146; 148
Borstal institutions....................................... 269
Branding ...........................................................2 72
Brierly .........:..................................................... 18.0
Buckland ...................................................... 5, 443
C
Can lhere be an Ownerless Right? ........... 394
Can a right be used against the
State? ........................................................ 395
Capital Puni~hment ....................................... 2 77
Cardozo Benjamin ........................ 14, 111, 124
Carter Jaines..................................................... 322
Causation ......................................................... 538
Caution against excessive PIL. ................. .599
Cestui que trust ...............................................451 ·
Chaining............................... ~•........................... 2 7 3
Characteristics of a Federal State ............ 191
Characteristics of Ownership ...................446
Characterstics of natural law ................... 148
Child Labour (Prohibition) Act ................ 115
Child Marriage Restraint Act ................... 115
Children Homes .............................................. 269
Chose in action .............................................. .564
 632 JURISPRUDENCE AND LEGAL THEORY
Chose in possession ·····················:······ .. ·······.564
Cicero......................................... 3, 146, 152, 231
Civil Justice......................................................256
Civil Law ......................................................... 235
Civii Rights Act ...................... :.. :............. 19, 115
Civil Suits-Causes of delay ..................... 258
Clarence Morris...~.................;....................... 165
Classification of legal duties ......;.............. 385
Classification of Legal Rights ................. ..401
Classification of States................................ 190
Code of Justinian; ................. :............... ,......... 152
Codification .......................................... ~ ............ 6 7
Codification of laws.....................................333
COFEP()SA ............................ ;............. .-........... 116
Cohen ................................................................. 147
Classification of Facts Comprising
Titles ................................ ;•........................ 461
Colonial legislation ...................................... 323
Common law ............................................,....... 242
Compensation to Victims of Crime ........... 609
Comperative Analysis of Austin·s
j;
and Kelsen's Views .............................. 211
Comparative jurisprudence .......................... 20
Comparative Law ................. :: .................:..... 245
Concept of Law ·················~····························138
Concept of World Federation .................... 192
Concept of Restorative Justice ................... 26 7
Concept of Justice........................................... 25 l
Concept of Social Justice ........... '. ................. 253
Concurrent possession.................................4 2 8
Conditional Limitation............................... .45 5
Conditional legislation ............................ :···331
Condition precedent...................................... 454
Condition subsequent...................................454
Confederation ................................................. 191
Conflict of Law .............................................. 249
Constitutional Mandate for Social
Justice........................................................ 114
Constitutional law ......................................... 2 3 7
Contribution of Realist School to
Jurisprudence ......................................... 12 9
Constructive possession ............................. .4 2 8
Consumer Redressal Forum ........................ 17 5
Contents of jurisprudence ............................. 11
Contingent ownership.................................. 453
Contingent right.............................................. 407
Conventional law ................................ 232, 240
I
Corporal punishment. .......•........................... 2 72
Corporate personality ................................ .504
Corporation aggregate .................................505
Corporation Sole ............................ .-............. .514
Corporeal ownership...................................449
Corporeal possession........ ,..........................426
Corpus Juris.~ ............................:..............._.... .-•... 5 5
Corpus possessionis...................................... .4 2 O
CorrectiveJustice...........................................254
Court of Common Pleas ........;.......................3 75
Crime and Torts Distinguished .................552
Criminal attempt ............................................54 7
Criminal Justice in Ancient India ............. 260
Criticism Against Austin's
Definition of Ownership .................. ..441
Criticism............................................................ 2 0.9
Criticism Against Realism........................... 130
Criticism Against Bentham ........................... 2 9
Criticism of Austin's Imperative
Theory of Law ......................................... 33
Criticism of Kelson's Theory ...................... .45
Criticism against Savigny's Theory
of Law ........................................................ 58
Criticism Against Ihering's Theory .......... :99
Criticism Against Ehrlich's
Theory ..................................................... 100
Criticism against Duguit's Theory ........... 103
Criticism Against Pound's Theory ........... 109
Criticism Against absolute
Sovereignty ............................................. 198
Criticism by Henry Maine .........................206
Criticism Against Kelsen·s Pure
Theory of Law ............................... :....... 212
Critical Appraisal of Natural Law
Theory ...................................................... 170
Custom as a Source of Law ....................... .302
Customary law ............................................... 232
D
Damnum sine injuria .................................... .53 7
Darwinian evolutionary Theory ............... 9 3
David Hume ..................................................... 161
Death penalty..................................................277 f
Debt Relief Act... ............................................ .592
Declaratory laws ............................................ 33
Declaratory theory of precedent .............. 352
Declaration of right ...................................... 258
Definition and Nature of Custom ............ .303
INDEX
·Definition and Nature of Law ................. 228
· Definition of Jurisprudence........... ..................3
Definition of State ......................................... 179
Definition of "Law" .......................................201
Definition of Ov,rnership.;...........................440
Definition and Nature of Title .................. 460
C Definition of Obligation............................. .563
Definition of Evidence .................................578
Degrees of Negligence ...................................551
Delegated legislation ....................................325
Delictal obligations ..............................~ .......56 7
Del Vecchio...............................................85, 147
· Deportation ...................- - -... ················~74
Dispositive facts ............................................ 463
Derivative facts.:... ;........................................463
Deterrent Theory ........................................:.. 26 l
Devlin ........................................_.................38, 595
Dharma ........................................ 2, 135,137,144
Dlzarmashastras ..................................... 138, 144
Dias & Hughes ........................ 5, 147, 410, 43.9
Dicey A.V .. :......................................................194
Difference Between Substantive
and Procedural Law ........................... .575
Different stages in the commission
of crime ..................................................... 544
Directive Principles of State .
Policy ........................... 113, 119,173,592
Distinction between Historical
Jurisprv.dence and Legal
History ...................................................... 53
Distinction between 'the law· and
'a law· ........................................................ 204
Distinction between Positive law
& Morality................................................ 4 0
Distinction between Civil and
Criminal Liability ............................... .5 31
Distinction between Custom and
Prescription ............................................ 314
Distributive justice.............................. 253, 288
Divestitive fact ............................................... 462
Divin~ law ...................................... 66, 153, 154
Divine Law And Human Laws.................229
Devine Theory ................................................ 18 l
Doctrine of Social Solidarity .................... 101
Doctrine of Stare Decisis .............................359
Double jeopardy............................................. 174
Dov. ." Prohibition Act. .................... 116, 221
Due process........................................................ 50
· 633
Duguit Leon ................~....... 101 102 180 194
Duguit's Contribution............. ~........:. ........:.103
Dworkin Ronald ......................_........................ 12
Duplicate possession....................................428
E
Edmund Burke......~..............- - . . ................ 54
Edward Jenks................................:......................6
Ehrlich Eugen........................ ."...... _ _ _ _ . 99
Ehrlich's Contribution ................................ 100 .
Ejusdem generis------...............338
Elements of legal right ...........................:......392
Elements of possession.................................42 O
Empharical scientific approach to
law ......................................·.............. _......... 92
Enforcement of legal rights ......................... 395
Environment Protection Act ............. 116, 593
Epistolary jurisdiction ·······················'.·······.S99
Equal Remuneration Act···············:············· 115
Equitable ownership .................................... 453
Equitable remedies ........................................3 77
Equitable rights..............................................406
Equity ................................................................ 243
Equity jurisdiction in India .....................,.. 378
Essential Commodities Act ......................... 330
Essential Elements of a Legal Right.......... 392
Essential elements (Requisites) of
the State.................................................... 18 5
Ethical legal philosophy ............................... 8 7
Ethical School. .................................................. 78
Evidence ............................................................578
Evidence-Its various kinds..................... .580
Evolution of the Concept of
Sovereignty ............................................. 193
Exceptions to doctrine of mens rea ......... .54 1
Expiatory Theory.......................................... 264
Excise Act. ............................................•........... 438
Executive legislation ....................................324
Explosive Substances Act... ....................... .438
Extinctive acquisition of
ownership ............................................... 458
Extra-judicial Enforcement ........................ 286
F
F.K. Von Savigny ..................................... 55, 83
FamilyCourts........................................ 115, 175
Fast Track Courts ..........................................611
Fatal Accidents Act. ............ ;........................ .497
Federal State.................................................... 1 90
 634
JURISPRUDENCE AND LEGAL THEORY
Federal State and Confederation
Distinguished ......................................... l 91
Foreign Exchange Mal'\Agement Act
(FEMA) .····:·········••,,,~..................... 116, 438
Fichte.................................................................... 81
F~nes and Confiscatiol'\ of Property .........273
,Fitzgerald P.J ............._. .. ,.,..... .-............... ,...... 11, 24
Flogging ···························..................................2 72
Forms of punishment .,................................... 2 71
Foreign Law ........,.... ,.,, ........ ., ...........................240
Four Developmental Stages
of Sociological Jurisprudence ............. 92
Four stages of dev~lPP:rmtftt of law ............. 66
Friedmann.................................................. 12, 146
Functional aspect of Iaw ............................. l 06
Functions of the State ................................... 18 7
G Historical interpretation ........................... .341
Gandhian concept of OWhership ....... · ..... 445
Gandhian Theory of Jllstke ....................... 2 91
Garner ................................... .,.. ......................... l 8 0
General jurisprudence.. ., .................................. .5
General meaning of the term RIGHT ........3B 4
General rules of Interptetation ................. 343
General will ...................•...•............................ l 59
Geny Francois................. 85 104 164
Gettell R. G. ....................•:::::::::::::::..... :.........:. l BO
Gierke............................... 93 153 526
·Glanvile Williams ........ ::::::::::::::::..... ~.........:.546
Giorious Revolution ..................................... lSS
Golden rule of interpr~tation ....................337
~:~:~:~~::::::::::::::::::::::::::::::::::::::::::::::::::::::~
Gray JC............................... 3 6 124
:~
Grotius Hugo ...................• :~:::;;~··i·s6~·· 1~9: 231
g:::-~:;:::·:::·:::~:·_·:::::::::·························· 42,
Gustav Radbruch...........
!~
32 86
Gutridge .... ,...................... ~-~:::::.·.·.·.·.·.·.·.·.·.·.::::::::; 0, '245
H Philosophy ................................................ 87
Habeas Corpus .................................................. 4 9
Hangerston Axel ............................................. l 2 7
Harmonious Construction .......................... 342
HartH.L.A. ······················ · 6 36 38 52
Hart's Conception of 1~•··············· ' ' '
w ............................. 37
Heden's case................ .......,.................... 339 , 340
Heraclitus B.C......... :: ..................................... 1.50
HegeL.................................................................... 81
Henry Maine .................. :........................... 62, 66
Herbert Spencer................................................ 96
Hermann Kantorowicz................................ 105
Hibbert .....................,.. ......... 201, 216, 237, 440
•Hindu Adoption & Maintenance
Act..... ·....................................................... 118
Hindu Marriage Act ..................................... 118
Historical and Analytical School
Distinguished ........................................... 7 O
Hitler Adolf ....................................................... 70
Historical Background ................................ 603
Historical comparative method ................... 61
Historical Evolution of Natural
Law Theory............................................. 149
Historical School of Jurisprudence ........... 53
Hobbes Thomas ...................... 4, 157, 182, 193
Hohfeld's classification of legal
rights ..........................................................401
Holland T.E ................................5, 35, 179,.443
Holmes .............................................. 31, 110, 125
Holines Theory................................................425
Holland's Classification of Law .............. 236
Hollanct·s Theory ........................................... 425
Holy Quran........................................................ 4 8
Human Rights Commission................ 115, 175
Human Right Jurisprudence........................612
I Jaimini's View ................................................ 135
lgnorantia Juris non exensat,
ignorantia facit excusat ........................ 226
Ihering's Contribution ................. ;................. 98
Ihering RudolphVon ...................................... 97
lhering's theory of possession .................. .424
Immoral Traffic (Prevention) Act ............ 115
Imperfect right ................................................. 401
Imperative Theory of Law .......................... 205
Implementation of Human Rights .............. 618
Implfcations of the Ethical Legal
Importance of Customary Law ..................319
Importance of Administration of
Justice ........................................................ 252
Importance of custom .................................... 139
Imprisonment ................................................... 2 7 4
Imprisonment for life ..................................... 2 7 6
INDEX
Independence ofJudiciary ...·:····.. ······292, 586
Indian Position ..................................... 279, 613
Indian Perspective .................. 47, 71, 112, 302
Indian Constitution-A social
dQClll!leI\t ..................................................593
Indian Legal Theory .....................................134
Industrial Tribunals.....................................115
Inevitable accident ........................................556
Injuria sine dammo .........................................538
Innominate obligation ..................................572
Intention and knowledge
distinguished ..........................................54 7
Inteipretation and Construction . Jus civile.......................................................... . 152
Distinguished .........................................341
Interest theory of legal rights .................~...391
Intematjonal law ................................ 233, 241
Interpretation of Enacted Law .................336
Interpretation-Definition.........................336
Interpretative Jurisprudence........................ 12
Inter-relation between Sources of
Law and Sources of Right .................. 301
Inter-relationship between
jurisprudence and other social
sciences....................................................... 1 7
Inter-relationship between State
and Law ................................................... 188
lnvestitive facts ..............................................461
Ivor Jennings.......................................... 198, 238
J Keeton·s view ..................................................300
Jerome N. Frank ................... ;.......................... 124
Jerome Hall .......................................................166
Jethro Brown................................................... 194
Jhon Finnis .......................................................165
John Locke.............................................. 158, 183
John Stuart Mill ........................................ 28, 34
Judge-made law ................................................. 33
Judicial activism ............................................ .596
Judicial creativity.......................................... 368
Judicial legislation ........................................ 324
Judicial precedent .......................................... 349
Julius Stone ......................................... 7, 94, 401
Justice Accord:ng to Law ....................•.......252
Judicature Acts, 1873 and 1875................377
Jurisprudence and Ethics .............................. 17
Jurisprudence And Legal Theory
Distinguished ........................................... 13
635
Jurisprudence is a lawyer·s extra
version........ ~ - - - - - · · · · .. ·········~ .. 13
Jurisprudence and Economics...................... 19
.Jurisprudence and History .......................... 18
Jurisprudenre:-1~ meaning...........'.·················1
Jurisprudence . and P~litical .
· Science-----........................... 20
Jurisprudence and Psychology .................... 18
Jurisprudence and Sociology ....................... 1 9
Jurisprudence-Whether a science ...............9
Jus ad rem ............... '. ...................................... ·...408
Juris consults ...................................................15 2
Jus genitum............. u ............., ••••.•••.••.•• .- ...•.•..••15 2
Jus naturale................................................ ~······152
Jus necessitai:s ................................................546
/us tertii.............................................................435
Juvenile Justice Act .............................. 117, 269
Juvenile Justice Board .................................. 269
Juvenile Justice-Reformative
Techniques .........................;.................... 268
'K
Kant lrnmanue1 .........................................80, 150
Kant's Theory of Possession ..................... 424
Karl Llewellyn ..................................... 123, 591
Kelson .................................................................. 41
Keeton .........-. .............................................. ,.. 6, 443
Kelson's Pure Theory of Law ..................... 44
Kinds of Act .......:.............................................535
Kinds of Legal Sanctions ............................216
Kinds of Liability ......................................... .53 l
Kinds of ownership ......................................449
Kinds of Custom ............................................. 307
Kinds of subordinate legislation.............. 323
Kinds of Interpretation................................ 3 3 6
Kinds of Negligence ...................................... .5 50
Kinds of obligation ...................................... .566
Kinds of Possession ...................................... 426
Kohler Joseph........................................... 83, 165
L
Laissez Jaire ................................. 27, 92, 97, 158
Laski Harold ......................................... 1J6, 234
Law and Morality .......................................... 34
Law and Society ..........:................................ .591
 636 JURISPRUDENCE AND LEGAL THEORY
Law's .De~elopment through Legal.
F1ction, Equity and
Legislation----··········· ..·····•········· 6 7
Law to secure and serve Social
Solidarity ................................................ 102
Law in Rem and Law in Personam ..........242
Law as an instrument of social .
change .................•........•............................219
Law as nonnative science............................ 42
Law of imperfect obligation......................... 33
Law of procedure ..........................................5 74
Lease .............·-······················.................. 405, 481
Legal aid scheme............................................ 605
Legal·Concepts................................................383
Legal duties-Classification .....................385
Legal Fictions and Presumptions..............222
Legal fictions...................................................222
Legal history ..................................................... 53
Legal ownership ............................................453
Legal personality...........................................495
Legal persons-Various kinds .................503
Legal presumptions ....................................... 223
~ Legal righ.ts .......................................;.............. 386
Legal Sanctions .............................................. 215
Legal Services Authorities Act. ...... 115, 288
Legal Sources of English Law ................... 300
Legal status of animals ................................499
Legal status of deadman ..............................498
Legal status of idols and Mosques ... ·......501
Legal status of unborn person ...................497
Legal Theory ..................................................... 11
Legal wrongs......................................... 384, 551
Legislation ......................................................... 68
Legislation-uefined ................................... 3 21
Legislation & Precedent. ............................. .3 3 2
Legislation compa~ed with other
Sources of Law ...................................... 332
Liability-Civil ........................................... .519
Liability-Criminal... .................................. .5 21
Liability of corporations........................... .519
Lien.....................................................................485
Lifting the Corporate veil ...........................508
Limitations on time........................................491
Limitation of Quantum Amount ................ 4 9 2
Limitation of Purpose...................................492
Local law .•·············.......................................... 240
Logka~ interpretation.......... ;.......................338
Lok Adalats.................................. 115, 175, 606 .
Lon Luvois Fuller................................. 166, 595
Lord Bryce .......................................................196
Lord Lloyd.......................................................2-02
Lord Macaulay ............................................ ~.33·4
Lord Mansfield ......................................... , .. 335
Lundstedt V......................... .· 128
M
:~~: ............................. ·····•····..·····:::::::::::::;~:
Main Characteristics of Natural
Law·----··························· .. ·········148
Main ~xponents of Sociological
Junsprudence ..........................- .......... 95
Malice in law and fact ................................ .543
Malimath Committee Report on·
Reform of Criminal Justice ................. 286 ·
Manusmriti ...................................................... 135
Marxist View ................................................. 194
Marxist Theory of law................................212
Martial Law ..- ................................................ 241
Martial Law distinguished from
Military Law ....... :.................................241
Malice................................................................543
Matrearchal theory of state
evolution.................................................. 185
Matriarchal Theory ..................................... 185
Max Muller ..................................................... 143
Max Weber ........................................................ 94
Measure of liability..................................... .559
Mediate possession.......................................4 2 7
Med~al Terminati_o n of Pregnancy
ct ....................................................... 72, 115
Membership of State ..................................... 190
Mens rea. ............................................................539
Mercantile law ............................................... 242
Merits and Demerits of
Codification............................................335
Miller.................................................................217
Mischief Rule .................................................. 339
Mistake of fact and law ..............................555
Mode.l Rul~s for Speedy
D1spensat10n of Civil Justice ............ 259
Modes of Acquisition of
Ownership ..............................................457
Modes of Acquisition of
Possession ..................................... 429, 488
INDEX
Mohammac:l Tugloq.-......................................... 73
Montesquieu ............................................... 54, 96
Mortgage & lien-Distinction...................486
Movement of Society from status to
contract ...................................................... 63
Municipal legislation ...................................325
Muslim · Women (Protection of
Rights on Divorce) Act ........................ 117
Mutilation........................................................ 2 72
N
Napolean Code ...............................................333
National Commission for Women
Act. ................................................... 116, 624
Natural. ~~w-Its Meaning and
Defirution ................................................ 147
Natural Law as distinguished from
other Laws: .............................................148
Nc1tural Law in Roman System ................. 152
Natural Law and Feminist
Jurisprudence .........................................169
Natural Law Principles under the
Indian Constitution.............................. 173
Natural law ........................................... 147, 231
Natural law theory ............................. 181; 474
Nature and Function of Law ..................... 204
Nature of law .................................................. 200
Nature of Possession .................................... 410
Nature of Judicial Precedent ......................349
I'\iDPSAct. ............................................... 438, 541
Negligence.........................................................548
Negative right ..................................................402
National Human Rights
Commis.sion (NHRC) ............................ 613
New Horizons of Jurisprudence ................. 21
0 Positive --ight ...................................................402
Obiter dicta .................................... 332, 351, 358
Obligations ......................................................563
Observation Homes ....................................... 269
Offences Punishable with death
sentences .................................................. 2 79
Olivecrona Karl.. ........................................... 12 7
Oinbudsrnan...................................................... 115
Openheirn ..........................................................18 0
()pi.urr, .t\.ct ..........................................................438
Opinions of eminent jt.:rists as
source of l,m: .......... ............................... .3 7 3
() , .~', [)()<~umi.•nlzirv and Re<1)
"''\·:d,?r:cc.. . .......................................... .., 7~
637
Origin of Custo,ns ....;.....................................304
Origin & Evolution of the State ................180
Origin of the Administration c~
·Justice.......•..................................·.............. 254
Overruling.............................•... ;..:.... ~..............362
Ownership--Conc.ept .& definition..... :...440,
448
Ownership distinguished from
possession ................................;...: 439, 458 .
Ownership Under Ancient Indian '
Law ...........................................................444
p
·
Panchayat (Extension to Scheduled
Areas) Act ...............................................1-16
Panchayati Raj ......................... :...................... 115
Parole................................................................. 270
Patterson E. W . .:_..:............................................. .8
Paton G.W .......................:... :...:.......·:·······,··· 7, 444
Patriarchal Theory .......................................184
Penal and Remedial Proceedings............... 286
Penal liability ................................................ .533
Philosophical or Ethical School... .............. 78
Pillory ....•........................................................... 273
Plato ......................................................... 146, .150
Place of Natural Law in British,
American & Indian Legal
Systems ..................................................... 171
Plea bargaining...............................................60 8.
Pollock Fredrick...................................... 69, 443
Pollock's Theory ........................................... .425
Position in India ···::········· .............................. 351
Position in England ....................................... 352
Positive Law and Morality-
Disfr :ction between.............................. .4 0
Posithrist's Hostility Towards
Natural Law .................................... ,., ...160
•Possession ................................ ~ ............. 410, 480
Possession in Fact.. ........................................414
Possession in law ..........................................415
Possession Under the Indian Law ..........435
Possession under Roman law ................... .411
Possessory remedies......................................434
Post-Independence Scenario ......................... 75
Pound's Contribution to
Jurisprudence ......................................... 109
PowvJ's Legal Philosophy ........................... 105

638 . JURISPRUDENCE AND LEGAL THEORY
Praetor.........................................................68, 152
Preamble of the Constitution......................613
Precedent as a source of law .......................349
Precedent sub silentio ....................................354
Prelude to Historical approach .................. 54
Prescription ..........:.....·.;·····---················314~ 488
Pre-natal Diagonistic Techniques
Act. ............................................................. 116
Presumptions ....................................................585
Presumption of innocence.:·•·······················.542
Prevention of Corruption Act. .............. ~ .... 116
Preventive Theory ......................................... 263
Primary and Sanctioning Rights ............... 25 7
Prize Courts................................•.......... 235, 241
Prize Law......................................................... 235
Probation of Offenders Act ........................ 115
Processual Justice ..........................................254
Production of Evidence............................... .583
Proof and evidence--Distinction .............579
Property ..............•..,.. ,............. ,......................... 471
Property-Its kinds .......................................4 78
Prospective over-ruling ............................... 362
Protection of Human Rights Act. ...............116
Protection of Women from
Domestic Violence Act ........................ 116
Public Law & Private Law ........................ 237
Public law ........................................................ 237
Public Liability Insurance Rights
Act. ............................................................. 116
PubUc right .......................................................408
Puchta (Savigny's disciple) ................... 56, 60
Purpose and Function of Law ................... 218
Pyramid of noffi\S ............................................. 4 3
Q Salmond's criticism Against
Quasi contractual obligations...................569
Questions of law and fact.. ......................... 224
R State distinguished from Society,
Racial Theory of Law ................................... 70
Radcliffe.......................................................... 8, 11
Ratio decidendi ................................................ 355
RawlsJohn ................................................88, 162
Rawl's institutional Theory of
Justice .......................................................... 88
Realism-What Exactly It Means? ......... 121
Realism-Indian context ............................. 130
Realist School ................................................. 122
i
Recent trends in Indian
jurisprudence... '........•...•.....•..............•.....591
Reformative theory..........................:;;........... 264
Reformatory School Act ·········'.····· ...............268
Reformative Techniques in Ju,venile ·
Justice....................................................- .. 26 8
Release of offenders on Probation... ..-..269
Reasons for Recognition of O!stom .........305
Religion, morals and law-
Distinguished ..................................... .... 141
Remedi,:d proceedings ··············---···286
Remedial rights ...............................................403
Renaissance .....................................................156
Requisites of a valid custom.......................311
Res nullius........................................................445
Restorative justice .......... _.............................267 ·
Restrictive and Extensive
Interpretation.........................................340
Retributive theory ......................................... 262
Rev.e rsal of trend from contract to
status .......................................................... 64
Right to Property in India ...........................493
Rights and duties (legal) ........;.....................396
Rights in re-aliena ..........................................481
Rights in repropria ................................:.......480
Roman law .................................................. 54, 57
Roscoe Pound .................................... 7, 105, 591
Rousseau... '. ............................................. 159, 18.3
Rule against unjust enrichment. .................493
Rule of law........................................................619 ·
Rule of recognition ......;···········----··· 3 7
s Stammler Rudolf ......................................84, 162
Sahnond.........................................3, 36, 179, 197
Salmond's Theory ..........................................425
Austin's Theory........................... 207, 398
Salmond's Classification of Laws ...........230
Salmond 's Definition of
OwnershiP·············------442
Sahnond's View .............................................. 298
Sanatana Dharma ....................................... 71, 72
Sanctioning rights ..........................................406
Savigny's Theory of Possession................423
Scandinavian Legal Realism ............ ;......... 126
Scope of Jurisprudence ................................... 10
Scbelling................................................ 55, 79, 83
SC&ST (Prevention of Atrocities)
Act. ............................................................. 116
INDEX
· Secondary functions of Court....................2 91
Secularism·····---- ---..--······117
Security bond ..................................................2 73
Servient rights.................................................408
Servitude.........· - - - - · · · · ·..·······.405, 483
Sethna M.J. ·········--- - - - - 8 , 536
Shah Bano Case ...............................................117
Sharialz..........................•..............•...................... 73
Social contract theory..................................182
Social justice.............·......................•,..... 112, 287
Social justice through legal aid and
Lok Adalats............................................602
Sociological Jurisprudence and
Sociology of Law
Distinguished .......................................... 94
Sociological school of .
jurisprudence............................................ 91
Sociology of law .............................................. 94
Social solidarity doctrine...........................101
Social utilitarianism ......................... ;; .. ;...... ;.. 98
Socrates................................................... 146, 150
Sole ownership...............................................450
Solitary confinement. .................................... 2 77
Solitary obligations..................................... .565
Sources of Dhanna ......................................... 13 7
Sources of law ...................................... 297, 302
Sovereign, Socialist, Secular
Democratic Republic................................. 2
Sovereignty ............................................ 186~ 193
Special Bearer Bond Case...........................594
Stare decisis distinguished from res
judicata ............................................... :..... 361
Stare decisis doctrine.................................... 359
St. Thomas Acquinas ...................................154
St. Augustine.................................................... 153
Nation and Govemrnent ..................... 186
Substantive & Procedural la½:"········242, 574
Sub-delegation ..................................... ,.......... 330
Subordinate legislation ............................... 323
Supreme ·Court's role in
implementing Legal Aid
Scherne.......................................................605
Supreme Court's view on
Sentencing ............................................... 285
..... .639
Supreme . and subordinate
Legislation ........................ ,......................323
Sutherland.............................................. 271, . 499
T
TADA ...........·----································49
Territorial enforcement of law .................217
Theories of corporate personality...........523
Theories of justice..................;................87, 102
Theories of legal rights .............. '. ...........:.. ;.. 391
Theories of negligence ···-·····························54 9
Theories of possessiori............................... ..423
Theories of property..................................:..4 7 4
Theories of punishrnent.............;:·····.. ~··········261
Theories regardi,1g trans-
.formation of custom into law ............315
Theory of remedial liability...................... .532
Theory of 5Qcial Engineering .......... ;;........106
Theory of unjust enrichment...................... .569
Thortson Sellin. .............................................. 2 78
Timasheff Dr........................,.............................. 94 ·
Titles-Definition and
classification................................ 460, 461
Tradio Brevi manu ......................................... 430
Transformation of question of law
into fact ..................................................... 226
Transitional period of law and
legal system ............................................. 14 3
Trust and Agency ........................................... 452
Treaties as a source of law ........................ 370
Trust and contractual relations ............... 452
Trust as distinguished from
mortgag? ...................................................487
Trust ownt>•:ship ........................................... .451
Twentietr. century revival of
na~·rul law ............................................. 16 l
Taylor.........,........................................................ 4 0
u
Ulpian ............................. ,............................. 3, 201
Unborn persons .............................................. 497
Unincorporated Associations ...................528
Unitary State................................................... 190
Upnishadic Interpretation of law ............140
Usufructuary mortgage ................................ 48 5
Utilitarianism ............................................... :... 2 7
Utility of jurisprudence ................................. 15
 r-
640 JURISPRUDENCE AND LEGAL TI-IEORY
V W
Validity of Subordinate
Legislation .............................................. 323
Vardacltariar S.V.......................................... 145
Varna Vyarastha (caste system) .................143
Vedanta philosophy ..............................72, 143
Valid )\greeinents...........................................466
Vecijc age............:.................;............................139
Vedic conception of law .............................. 139
Vestative facts ................................................462
Vested ownership.......................................... _ 453
Vested rigllts...:·········..··~·.................................407
Vicarious liability ........................................558
Victim offender mediation (VOM) ........... 268
Vinogradoff ..................:.................................... 69
Void agreements .............................................467
Volksgeist ........................................................... 56
Voluntary Disclosure of Income
-5cheme{YDIS),_ _ _ _ _ _ J45
Wealth Tax Act ......... - --594
Welfare legislations...............:-...................... 115
Welfare of Parents & Senior
Citizens Act ......................................... ~..116
Whether International Law is
really a ·~w· ......................................... 16 7
Why law protects possession.................. .;412
Will theory of legal rigllt .............................391
_W infield ............................................................568
World Federation .:.........:.... -... ~.............. :.....192
Women's Commission ......................... H5, 175
Wrongful Act---··································536
Wrongs of Strict liability......................... :..554
y
Yagnavalkya ...................................................444
z
Zacharrc.-------------'21.3
"Zitelmana .................................~·········:· .............496