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CONTENTS
PART - A QUESTIONS
1. What is Contract?
4. Define Acceptance. V·
5. Define Consideration.
'-'
27.
6. What is free consent?
11.What are the Conditions for the Enforcement of a Contingent Contract? ,,"_
\.I.
12.Write about Contingent contracts. :n.
13.What are void and voidable contracts?
'-'
34.
14.Liquidated damages. ~.
'-to
IS. Write a short note on Novation.
17.Uberrimae fidei.
""
'-'
I 8. Reciprocal Promises.
19.Appropriation of payments.
..,
40.
4'(
'"'-'
42.
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•*- 2
PART - B QUESTIONS
LAW OF CONTRACTS
• 23. What are the remedies for the breach of the contract and what are they'?
• Explain.
•
24.What is meant by Duty to mitigate?
25.How a contract is discharged?
• injunctions.
H•_
doctrine?
32.What is a standard form of contract?
• decree.
• 39. All contracts are agreements but all agreements are not contracts.
• Discuss.
• JB SERIES
3 LAW OF CONTRACTS
Law of Contracts
Part A - Answers
1. What is a contract?
Ans: In simple terms, a contract means when two parties put into writing an
agreement which contains certain obligations (promises) which are to be
performed by such parties. and when sllch written agreement becomes
enforceable by law, it becomes a Contract.
Contract Act defines a Contract as "An agreement which is enforceable
by Law". An Agreement is a settlement between two parties, which contains
obligations or promises which both parties need to fulfill. When sllch an
agreement is made binding by Law it becomes a Contract.
Pollock- "Every agreement and promise enforceable by law is a contract". \.I
Now after examining the definitions of contract we can say that- Ace
Contract = Agreement + Enforceability Mi
Illustration: A contracted with B tor purchase of 10 bags of cement of a certain .,_,.
quality, for Rs 3,000. In this case, B's promise is to provide A with 10 bags of •
cement of that quality only for which A has contracted and A's promise is to
duly pay B Rs.3,OOO.In this case. both have to perform something for the other.
thus it is a case of reciprocal promise.
•
Charity is not a case of reciprocal promise, because a person doing charity, does
not expect anything in return. w.
Contracts in India is primarily governed by INDIAN CONTRACT ACT,
1872 ("Contract Act").!t contains basic elements of a contract and several
general rules which apply to contracts. It does not impose any positive duty on
k a
e
Ans: Section 10 states conditions which are required for a contract to be valid.
~ Offer: Firstly, there must be an offer from either party, without an Offer a
contract cannot arise.
~ Acceptance of the offer: Secondly, the Offer must be accepted by the
person to whom it was intended or made.
Example: An offer made by A to B has to be accepted by B only.
~ Consensus ad-idem":Consensus ad-idem means meeting of minds. It
means that parties to the contract should accept the terms ofthecontract in
the "same sense". Thus parties to the contract must have the same
understanding of the terms of the contract. •
Example: 1 A contracted with B to purchase rice. Now A wanted a special
type of rice, however, B thought of it to be normal rice. In this case,
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•• LAW OF CONTRACTS
•
'\CTS
•
".t!'f' an
he
in a company, whereas B understood it to he his livestock (farm animals).
In this case, the understanding was not in a similar sense.
~ Competancy:Parties must be competent to contract. They must be legally
capable to contract i.e., the parties must he mentally sound, they must be
~les rna j ors etc.
~ Consideration: For the performance of promises there must be a
cehle consideration. Something to be given in return for performance of
-ntains promise from both parties to the contract.
Lean y Lawful object :The object of the contract must be lawful.
•
~.in
ags of
Accordingly, Section 23 defines Unlawful consideration and object is one
which is either,
• forbidden by law;
• or is of such a nature, that if permitted. then it would defeat the provisions
~.to oflaw;
other.
•
• or the purpose of the contract is fraudulent:
• or involves or implies giving injury or damage to someone or to someones
•
., does property;
• or the court considers it as immoral or against public policy.
~T, If a contract shows any of these elements then it is unlawful and void U/S 23.
eWral Free consent :According to section 10 of contract act 1872 " agreements are
j~on contracts if they are made by free consent".
Section 14 of the contract 1872 act defined free consent as consent not
••
alid.
3. Write a short note on Offer.
Ans: An offer is the first thing for the formation of a contract. A person making
•
)ffer a
an offer is called an "offeror"/"proposer" and a person to whom the offer is
made called an "Offeree" / "proposee",
JWhe . According to section2(a) of the Contract act, an offer/proposal is:
.An offer simply means willingness, to do something (a positive act) or to
II. It not do something (a negative act). It must be noted that if an offer is not
made, to get the acceptance of the other party, then it cannot be construed as
r.in an offer under the Contract Act.
same
•
:pecial
• se,
.An offer must be made with the object of getting a favourable response from
the intended acceptor. Thus, there may be 'positive' or 'negative'
acts which the proposer may be willing to do.
• JB SERIES
5 LAW OF CONTRACTS
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• 6 LAW OF CONTRACTS
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and
acceptance. Therefore an act done, amounting to acceptance, but acceptor being
unaware of the offer, it is not a valid acceptance .
In the case of La 1man Shukla v GauriDutt (1913) the defendant's boy went
•
~
missing, accordingly, his servant-Plaintiff was sent to search for the boy, in the
meantime a missing poster was released by the defendant. promising to pay a
certain sum. to the person who finds the boy. The servant. unaware of such an
Hlin
offer succeeded to find the boy. Once he knew about such an offer he asked for
the consideration. but the same was denied. The court ruled in favour of the
~!~d
•
Defendant. by holding that Plaintiff was ignorant or an offer and thus the
performance of the promise does not amount 10 acceptance.
Essential elements of an acceptance
.se 1. Acceptance should be absolute and unconditional. and must be made when
lito the offer is subsisting.
2. Acceptance to offer can be expressed or implied i.e. conducting in a
'_is manner which implies acceptance.
Eg: I f a watch is taken by someone to test it. be fore making the final
•:. purchase and the person pledges it, this amounts to an implied
acceptance.
3. Acceptance must be communicated in a reasonable manner, or, if any,
•
akes
r.
must be communicated through a reasonable medium. like telephone,
mail, WhatsApp message, automatic reply to emails. if there are no
exceptions
4. Traditionally acceptance was made through posts or letters. If an
acceptance is intended to be made through a post, it will be deemed
i_on accepted when the letter of acceptance is posted and it is out of the reach
J!y of the acceptor.
m nt However with the advent of instant communication like telephone, offer is
•••
mg, It
:.e
accepted, when the offeror hears the acceptance on his part.
5. Acceptance or communication of acceptance bya third person or a
stranger is not a valid acceptance. If a contract mentions a specific
person to whom acceptance is to be communicated, then acceptance shall
e. be deemed to be valid if it is made to that person only.
•
o~he
6. Acceptance can be either in express words or can be implied i.e. by
conducting in a reasonable manner which signifies acceptance.
Eg. A offered B to sell his watch for Rs.IOOO .and lends it. for his
satisfaction. B, in turn, pledges it or further sells it. The act of B is conduct
e.as amounting to a valid acceptance.
Eg: In a contract of sale, acceptance is when an act by the purchaser does
lAd, an act which is in consistent with the ownership of the seller.
itan
o of
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7 LAW OF CONTRACTS
5. Define Consideration.
Ans: Consideration means value given for the performance of a promise. It
need not necessarily be money, however, it should be something which has been •
agreed by the parties and has some value.
Usually, a contract without consideration is void, however, exceptions to this
rule are specified in Section 25 of the Contract Act.
Essential elements for valid Consideration
I. It has to be at the desire of the promisor. which means that it should
originate from the promisor out of his own accord and not at the instance
of a third party. •
2. Accordingly, the performance of a legal duty is thus not a consideration.
3. Consideration could be:
• Past Consideration, when the promisor has received consideration M
before the date of the performance of the contract by any party. Eg. whi<
Advance money paid. c~t
• Present Consideration, when consideration is provided immediately vJh
when the contract is made or executed. Thus it is also
called "executed consideration. ,-,i..
,..,
Ans: According to section 10 of the contract act, a contract is valid if it was \.;1
entered into by free consent of the parties. Section 14 of the contract act defined
free consent as consent not given under coercion, undue influence, fraud,
misrepresentation and mistake.
• Coercion (Section 15)
Section 15 says that acts amounting to coercion must be to the prejudice of
the other. It means that the act of coercion must be harmful to the other
person.
Eg: A husband threatens his wife that he will commit suicide unless she
releases a property. This amounts to coercion to the prejudice of the wife.
• Similarly threatening to divorce and because of this she is made to sign a •
contract also amounts to coercion.
• Undue influence
According to section 16 if consent has been obtained by a person who is in a
dominant position compared to the other person, then it is undue influence.
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~_CTS
8 LAW OF CONTRACTS
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OlTIlSe.It
Example: an employer-employee relationship,
lawyer - Client relationship etc.
Doctor-patient relationship,
1.
• been
this
• Fraud:Fraud includes concealing any fact by the party who is aware of
the existence of such fact.According to Sec 17 Fraud can be committed
either by one contracting party or by the agent of any contracting party.
•
Eg: Making a statement that a product is of good quality, despite knowing
that the product is of substandard quality ..
i~f:0Uld • Misrepresentation: When false statements are innocently made without
I tance the intention to deceive. then it amounts to misrepresentation.
•
.ratron.
• Not qualified to contract: It means a person not permitted to enter into a
contract. Eg alien enemy, convicts of a crime, an insolvent person,unsound
•
ideration
1•. Eg.
person. Minor etc.
Conclusion: These are the most basic and elementary principles of a contract,
which are to be fulfilled. In valid contract, both parties who involve in the
contract are legally bound to fulfill their obligations or promises which are
I.ately within the contract.
i.also
7. Name the contracts which are forbidden by law.
I.the Ans: A contract is forbidden by law if it is either against any law, both
ntracts' - substantive and procedural.
t. E.g. An agreement to sell liquor without a licence, despite the law mandating to
have a licence.
·.nis In a particular case the Plaintiff owner of a bar and having the licence to
sell liquor transferred the management of the bar and liquor sale to the
•
e of the
defendant who had no such licence. The court held that transferring business
•s
and sale of liquor to a person who didn't have the license, was prohibited by law
and thus cannot be enforced.
Section 26 to 30 deals with such contracts. There are those contacts which have
been expressly declared void by the Contract Act.
I.ed
• Agreements restricting a marriage (section 26)
•
.of
There is only one exception to section 26 i.e. an agreement in restraint of
marriage of a minor. This is because marriage with a minor is out rightly
against Public policy and against section 10 of the Contract Act.
~'her • Agreements restricting trade (section 27)
Section 27 says that every agreement by which a person is restrained from
~~she exercising a lawful profession, trade or business of any kind, is to that extent
w e. void.
w• na
renee.
against the other party, then that agreement is void. However, an agreement
which provides for arbitration when a dispute arises, then that clause is not
void.
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• Wi
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,-,t
\
~s
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Section 5 of the Indian Contract Act, lays down the rules of revocation of > ]
proposals and acceptances i.e. A proposal may be revoked at any time before '-"t
the communication of its acceptance is complete as against the proposer, but not ....,\
afterwards. An acceptance may be revoked at any time before the
communication of the acceptance is complete as against the acceptor, but not
afterwards.
Eg: Jay proposes, by a letter sent by a post, to sell his house to Veeru and Veeru
accepts the proposal. In this case, Jay may revoke his proposal at any time
before or at the moment when Veeru posts his letter of acceptance, but not
afterwards. And Veeru may revoke his acceptance to any time before or at the t
moment when Veeru posts his letter of acceptance, but not afterwards. '-'(
Modes of Revocation
Section 6 of the Indian Contract Act, 1872 provides various modes of
revocation which are as follows:
• Notice of revocation: In this Case, revocation has to be made before the
acceptance. The communication of revocation to be effective must reach
the offeree before he mails his acceptance and makes it out of his power. A
\.t
revocation is effective only when it is brought to the mind of the person to
whom the offer is made.
9·C
In Ramlalsao Gupta v. .M.E.R. Malak, unfortunately the letter of
revocation was reached at wrong address and earlier it was being sent by fax. A~
The court held that the same to be of no effect. avai
In Alfred Schonlank & Anr. V. MuthunayanaChetti, the defendant PI\J
offered the plaintiff a sale of indigo proposal and also told him that within eight Exs
days he can reply to the proposal. The defendant revoked the offer on the fourth an~
day on the other hand plaintiff on the fifth day accepted the offer. The court
held that in case there is no consideration for the promise to keep offer open for '-'
strar
a certain time then its nothing but a bare promise only and at the same time exl"
these acceptance was of no use in the eyes oflaws. Exc
A~
fol!r
\.,
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~ Lapse of time: Where an offer says that it shall remain open for acceptance
Jose up to a certain date, it has to be accepted within that date. It has been
o hat
w ser
suggested by the Calcutta High Court that in such a case it is enough if the
acceptor has "posted the acceptance before the stipulated time", even if it
•
act, an
telegram for the acceptance of offer was sent by the offeree hut the same
was received by the offerer on 30th March. The court he ld that the
~ers
• acceptance was val id.
• Where no time is specified within which the offer should be accepted it is a
, settled principle that the offer must be accepted within a reasonable time .
s, specified period but the defendant even after the expiration 0 f the stipulated
~.
t.
t
time didn't deposit the sum of money. The court held that this entailed
cancellation of the allotment.
~ By death or insanity of offerer: With the death of the offeror. an offer will
not be terminated necessarily and the same will open until the offeree
comes to know the death of the offeror.
• Conclusion :Thus, The Indian Contract Act, 1872 not only provide
provisions to enter into the contract but it also provide provisions for the
•
o.the
t reach
termination of a contract which is entered into by the parties. The
provisions and rules of revocation are laid down under section 5 and modes
of revocation in section 6 of this respective Act. Overall revocation means
"taking back" or it is called as a way of termination of an offer.
•. A
rson to
b
•
tt~ of
ax.
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9. Explain the doctrine of Privity of contract
Ans: The law does not allow a stranger to file a suit on the contract. This right is
available only to a person who is a party to the contract and is called Doctrine of
Privity of Contract.
rAant
Example:Peter has borrowed some money from John. Peter owns a property
ight
and decides to sell it to Arjun. Arjun promises to pay John on behalf of Peter.
:'!rth
However, if Arjun fails to pay, then John cannot sue since Arjun is a
e.urt
:\ stranger to the contract. It is important to note that the Doctrine of Privity has
pen for "._
•
"::~
i A stranger or a person who is not a party to a contract can sue on a contract in the
• following cases:
•
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11 LAW OF CONTRACTS 12
Trust: If a contract is made between the trustee of a trust and another party, then ~
the beneficiary of the trust can sue by enforcing his right under the trust, even ifhe ~'1
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"• 12 LAW OF CONTRACTS
~-
he filed a suit against Arjun. Although Arjun denied liability since he was not a
l~en party to the contract, the Court held him responsible for violating the covenant.
-
nllWhe
Contract through an Agent: Ir a person enters into a contract through an agent,
where the agent acts within the scope of his authority and in the name of the
.jun m
person (principal).
).of
Example :Vidya purchases a property from Krishna. Rajiv is already living in the
•
nes 21
property on a three-year lease. As a part of the purchase agreement, Vidya takes
over the lease. There are some leakages in the house that Krishna promises to fix,
:~nd as a part of the contract. A fe" months go by and the leakages are still not fixed.
lir"'for
Rajiv calls Vidya, the new owner, and she says that it is Krishna's responsibility .
• ra Can Rajiv file a suit for repairs against Krishna?
'On the
•
nefit a
iawn
Since there is no contract between Rajiv and Krishna about repairing
the leakage, ifhe files a suit it will probably be dismissed by the Court. Krishna
had agreed tocarry out the repairs in his purchase.
Raj iv, on the other hand, can sue Vidya for not performing her obligations
according to the lease contract.
·Id
wou
~by
::.,.
by the
ily had
10. What are the wagering contracts?
Ans: Wagering Contract is one in which there are two necessary parties
between which the contract has been made and wherein, the first party promises
to pay a certain sum of money to the second party on the happening of a
u.on
particular event in the future and the second party agrees to pay to the first party
le.as-e
on not happening .
~"'the
•
n, then
1.t is
Example 1: A and B agree with each other that if it rains on Tuesday, A will pay
Rs. 100 to Band ifit does not rain on Tuesday, B will pay A Rs. 100.
•
ve this Essentials of a Wagering agreement:
•
oLJand
l~ties
wins, and if team B wins, D will pay Rs 500 to C. This is a wagering agreement
and is void.
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LAW OF CONTR/\CTS
agreement. In this case, each party has the chances to win or lose. Here the gain 1~
of one party will be the loss of the other and vice versa. ~.
Ans:
3. No Other Interest in the Event: Neither party should have any interest in C\.fl
happening or non-happening of the event other than the sum he will win or lose.
If either party has some other interest other than the sum he will win or lose. it .\.f 1
will not be a wager. r
Example: A, a owner of a house. insures his house against fire with GIC. A has
to pay an Insurance premium or Rs.50 per month as per the terms of contract. If
the house is destroyed by tire. GIC will pay the actual amount of loss suffered
by him. Here A has interest in his house. Further on thehappening of the event
i.e. fire, A will not get anything. Hence it is not a wager.
U1
• 1
4. No Control over the Event: The parties to the contract should not have any \.t
I
control over the happening of the event one way or the other. If one party has
the events in his hands, the transaction will not be a wager. \.t
d
Example:A and B enter into an agreement that if A resigns his job. B will pay
~
him Rs 500 to A and A will pay Rs 500 to B if he does not resign his job.Here J.,
A has the event under his control. Hence it is not a wager. \i
Exceptions: •
The following transactions are not wagers:
l. Contracts ofInsurance are not wagers •
Insurance contracts are contracts of indemnity. They are entered into, to
safeguard the interest of one party to the contract. In this contract, the insured .~
has insurable interest in the property or life Hence, it is not a wager. Wager ~
means a bet. It is a game of chance where the probability of winning or losing is \.If
uncertain. The chance of either winning or losing is wholly dependent on an n
uncertain event.
1.~
Parties involved in a wagering contract mutually agree upon the nature of
the agreement that either one will win. Each party stands equally to win or lose .., t]
the bet. The chance of gain or the risk of loss is not one sided.
The essence of a wagering contract is that neither of the parties should have any \....
interest in the contract other than the sum, which he will win or lose. Parties to a a
wagering contract focus mainly on the profit or loss they earn. \.r
2. (
Example 1: A and B agree with each other that A will pay Rs.I00 to B, if it
~
rains on Tuesday. B will pay A Rs 100 if it will not rain on Tuesday. Such an
agreement is a wagering agreement and hence is void. '"
~
Example 2: There is an agreement between A and B which provides that if
Indian Cricket Team beats Pakistan Cricket Team, A will pay Rs 1,000 and if 3.~
Pakistan Cricket Team beats Indian Cricket Team, B will pay Rs 10. The L-
agreement is a wager agreement. A
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14 LAW OF CONTRACTS
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'. A has
11a. If
not enforceable if the event does not happen.
•
.»any
has
• The contract is contingent on the conduct of a person whose action makes
fulfilling of the condition impossible.
Example: A promises to pay ten thousand rupees to B if he marries C. In
case C marries D, then the event of B marrying C is rendered impossible. A
divorce between C and D or the death of D is possible later and only. in
i'pay such a case, the contract will become valid. Otherwise, the contract
teere becomes void.
•
It~ to
n red
• The contract is contingent on the non-happening of the event within a
fixed time.
•
)r lose
these cases, the promisor is liable to do or not to do something when that
event occurs. However, the law cannot enforce the contract until the
ve J(Ya occurrence of the event. If the occurrence of the event becomes impossible
due to any reason, then the contingent contract becomes void.
2. Contracts contingent when the event does not occur: A contingent
~~fit
contract can also be based on a non-happening event. In this case, the
l.an promisor will do or not do something when the event does not occur.
Contrary to the above rule, the contingent contract becomes void when the
event takes place.
t! if
3. When a living person does something to make the occurrence of the
.if
event impossible
•
I. The
As per section 32 of the Indian Contract Act, if the contract is contingent
depending on the actions of a person, then the occurrence of the event
• ,;
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LAW OF CONTRACTS
becomes impossible when that person does something to make the event c-
impossible to happen. ,-,r
car
4. Contracts Contingent when the event occurs within a Specific Time • \.11
cor
In some contingent contracts. a party promises to do or not do something on
the occurrence of an uncertain event within a specific time period. The
\.-rc
F.x
contract becomes void when the event does not occur or the time period is
over. ","0
~ln
En~(
]2. Write about Contingent contracts. Sec~T
enforce
Ans: Under Section 31 of The Contract Act 1872, contingent contracts are Ru~
defined as follows: "If two or more parties enter into a contract to do or not do the hal
something, if an event which is collateral to the contract does or does not happen, voi~
then it is a contingent contract".
Illusrr
Insurance contracts, indemnity contracts. and guarantee contracts are some pre~~
examples of contingent contracts.
JuliLJ
Example: Peter is a private insurer and enters into a contract with John for fire the CoT
insurance of John's house. According to the terms, Peter agrees to pay John an
Rut..;
amount of Rs 5 lakh if his house is burnt against an annual premium of Rs 5,000. contra,
This is a contingent contract.
suc\..,:
Here, the burning of the house is neither a performance promised as a part happer
of the contract nor a consideration. Peter's obligation arises only when the spe-.,i
collateral event occurs.
Illustr
Essentials of Contingent Contracts
whi'"
• Depends on happening or non-happening of a certain event: The contract contra
is contingent on the happening or the non-happening of a certain. These said imp~~
events can be precedent or subsequent, this will not matter
Rut,.
for example: Peter promises to pay John Rs 5,000 if the Rajdhani Express somet
reaches Delhi on time. This is a contingent event.
34 'C 1
• The event should be collateral to the contract: It is important that the how a
event should not be a part of the contract. It cannot be the performance wh"
promised or a hi for a promise. Illustl
Example: Peter enters into a contract with John and promises to deliver 5 Juli",
television sets to him. John promises to pay him Rs 75,000 upon delivery. impos:
This is normal contract. Ruft.,
Where as Peter enters into a contract with John and promises to deliver 5 Tilll'"
television sets to him if Brazil wins the FIFA. This is a contingent contract do ~
since Peter's obligation arises only when Brazil wins the Cup which is a contJ
collateral event. before
• The event should not be a mere will of the promisor: The event cannot be [ spe'\;
a wish of the promisor. f
" Exam
~ leav\.,r
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"• 16 LAW OF CONTRACTS
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For example: Ashok promises to pay Rahul Rs 50,000 ifhe leaves Mumbai
etlivent for Dubai on August 30, 2018. This is a contingent contract. Going to Dubai
•
i.are
Sections 32 - 36 of the Indian Contract Act, 1872. list certain rules for the
enforcement of a contingent contract.
Rule 1 -Contingent contracts on the happening of an event impossible :If
·,dO the happening of the event becomes impossible, then the contingent contract is
hu' en, void. This rule is specified in Section 32 of the Indian Contract Act, 1872.
Illustration :Peter promises to pay John Rs 50.000 if he can marry Julia, the
~'ll1e prettiest girl in the neighborhood. This is a contingent contract. Unfortunately,
r.
f! tire
an
, 5,000.
Julia dies in a car accident. Since the happening of the event is no longer possible,
the contract is void.
Rule 2 - Contingent contracts on an Event not happening :A contingent
•
contract might be based on the non-happening of an uncertain future event. In
such cases, the promisor is liable to do or not to do something if the event does not
s a part happen. If that event happens, then the contingent contract is void. This rule is
l.the specified in Section 33 of the Indian Contract Act, 1872.
•
;Wact
: saId
Illustration : David promises to pay John Rs 50,000 if the ship named Titanic
which leaves on a dangerous mission does not return. This is a contingent
contract. This contract is enforceable by law if the ship sinks making its return
impossible. On the other hand, if the ship returns, then the contract is void.
•
ress
Rule 3 - Contingent contracts on the conduct of a living person who does
something to make the event or conduct as impossible of happening :Section
•
thithe
'"
~.
"
34 of the Indian Contract Act, 1872 states that if a contract is a contingent upon
how a person will act at a future time, then the event is considered impossible
r· nee
~_r 5
iI when the person does anything which makes it impossible for the event to happen.
Illustration: David promises to pay John Rs 5,000 if he marries Julia. However,
Julia marries Oliver. Julia's act thus renders the event of John marrying her
ellery. impossible.
Rule 4- Contingent contracts on an Event happening within a Specific
~.r 5 Time :There can be a contingent contract wherein a party promises to do or not
.ontract do something if a future uncertain event happens within a fixed time. Such a
c1tis a contract is void if the event does not happen and the time lapses. It is also void if
before the time fixed, the happening of the event becomes impossible. This rule is
tAt be specified in Section 35 of the Indian Contract Act, 1872. .
•
Example: David promises to pay John Rs 5,000 if the ship named Titanic which
leaves on a dangerous mission returns before June 01, 2019. This contract is
•
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17 1~
LA\N OF COrHRACTS
enforceable by law if the ship returns within the fixed time. On the other hand, if S~i
the ship sinks, then the contract is void. th=«
Rule 5 -Contingent Contract on an Event not happening within a Specific to~()
Time si\_;l1
Contingent contracts might be based on the non-happening of an uncertain future Then
event within a fixed time. In such cases, the promisor is liable to do or not do t~
something if the event does not happen \\ ithin the said time. Also, if it becomes The I
certa in that the event will not happen be lore the time has expired, then it can be th"_'r
enforced by law. This rule is speci fied in Section 35 of the Indian Contract Act influ,
1872.
p~
Example: Peter promises to pay John Rs S.OOO if the ship named Titanic which F~-.f
leaves on a dangerous mission does not return before June 01, 2019. This contract exlre
is enforceable by law if the ship does not return within the fixed time. Also, if the si\_,t
ship sinks or is burnt, the contract is en forced by law since the return is not freel)
possible.
~
Rule 6- Contingent contracts on an Impossible Event :If a contingent 14. L
contract is based on the happening or non-happening of an impossible event, then v
such a contract is void. This rule is specified in Section 36 of the Indian Contract
Act 1872. A\.,
pay tl
Example: David promises to pay Paul Rs 50,000 if the sun rises in the west the
next morning. This contract is void since the happening of the event is impossible. A~
must
thkt
13.What are void and voidable contracts? th~~
Ans: Section 2(g) of the Indian Contract Act, 1872, states that contracts or
al~
agreements that are not enforceable by law are known as void contracts. When
dispn
there is no agreement existed between the parties, no obligations by either of
the parties have to be fulfilled. pr<J.,r,
dan-«
\w
The grounds for a contract to be rendered void
W......,
l.Incompetence :There are many ways in which a contract can become void. If
To~
one party is incompetent, they legally become unable to agree to a contract. This
cri\.,.
can include one of the people entering into a contract while being incapacitated
or unable to make a proper judgement. •
2. Inclusion of an unlawful object or consideration: The contract can also be
considered void if an unlawful object or consideration is involved in the •
agreement.
3. Impossibility of performance : This Occurs when any aspect of the
contract becomes impossible to carry out by one of the parties.
Example: If A enters into a contract with B to smuggle contraband items into a
city, then such agreement will not be enforceable under the law. This is because
the subject matter of the contract is illegal and opposed to public policy.
Voidable contracts:
JB SERI
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1R LAW OF CONTRACTS
Section 2(i) of the Indian Contract Act, 1872 defines voidable agreements as
rtJjnd, if
those which are valid as long as one of the parties or both the parties can decide
to void their agreement. Mostly, cases involving a voidable contract relate to a
"cific situation where there was a lack of free consent from one of the parties.
Therefore, if the party accepts the terms of the contract. it remains valid, and if
l~ture
they don't. then the contract between them ceases to exist.
ir not do
The basis for deciding whether a contract is voidable at the option of either of
~mes
the parties depends on factors such as coercion. misrepresentation, undue
it can be
influence. and so 011. Since it's at the option of one of the parties, the aggrieved
r. Act,
party gets to decide whether or not to make the contract void.
For example: A holds B at gunpoint and asks her to sell him her house at an
i~hich
extremely lo« price, and B does so accordingly, tearing for her life. In this
.. tract
situation, B was coerced into an agreement by A, and thus her consent was not
••
so, if the
I.gent
not
freely obtained. Therefore, she can choose to void the contract on this basis .
~then
tract Ans: Liquidated Damages means the amount that a contracting party agrees to
pay the other party for breaching the agreement.
l~the A liquidated damages clause specifies a predetermined amount of money that
).ible. must be paid as damages for failure to perform under a contract. The amount of
the liquidated damages is supposed to be the parties' best estimate at the time
•
tAtts or
they sign the contract of the damages that would be caused by a breach.
While liquidated damages provisions can have advantages, they are not
always enforceable. If the predetermined amount of damages ends up grossly
I
.,hen I disproportionate to the actual harm suffered, courts will refuse to enforce the
~i rcr of Ift provision on the grounds that it is a penalty instead of an estimate of actual
• I
,_
;~
Wt
damages.
•
~
~
t~ When Will a Liquidated Damages Clause be Enforceable?
void. If
l~his I To be enforceable, a liquidated damages clause should meet the following
criteria.
aiated I
If
§
• To be enforceable, the damages should be either uncertain or difficult to
quantify at the time the contract is entered into.
,..
~
jj;
'lobe ~'
• The amount is reasonable and not a penalty. If the amount of the
the It~
l!"
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19
LA W OF CONTRACTS "
20
• Both parties have the advantage of being able to weigh the cost of
performance against the cost of breach. £..AI
• The suffered party never has to prove actual damages, which can be a with
time consuming and difficult task. ~
• This clause gives both parties the opportunity to settle on an amount that
thcy think is fair instead of leaving this decision to the courts.
CO'
com
15. Write a short note on Novation. j~(
Ans: Novation is the act of replacing a legitimate existing contract with a new cr-it
contract. where the transfer i,smutually agreed by both parties concerned. t~(
Novation takes place when either a new contract is substituted for an
existing one between the same parties, or, a contract between two parties is '-'
to th
rescinded in consideration of a new contract being entered into on the same IV
terms between one of the parties and a third party. Novation is of two types. novi
They are: li\.ll
• A novation involving a change of parties
~~~
• A novation involving the substitution of the new contract in the place of old W""1
with a new contract, under which the same rights and obligations in future are to \wi
be enjoyed and performed by different parties. And the outgoing party (A) will a
be released from all liabilities under the contract. .'-1'
Substitution of New Agreement
When the parties to a contract agree to substitute a new contract for it, the
original contract is discharged and need not be performed. In other words, it
.T...,
~
1•
means that if the new contract changes the heart of the contract or the root of the •
primary contract only then it will be considered Novation.
-
•
•
~ICTS
20 I ,A\IIJ (IF CONTRACTS
So the question arises what happens if the heart of the contract is not
't. changed but only minor changes are made. Any minor change to the contract
with the consent of both parties is called Material alteration to the contract
.a and it is legally binding on both the parties.
Case law Nagendra Kumar Brijraj Singh v Hindustan Salts Ltd,
).that
• In the above case the defendants advertised that there were vacancies in their
i•_
company at a certain salary. The petitioner got selected for the job. The day he
joined he was offered the job at a lesser pay scale. He consented to this new
new contract which offered him lesser pay than what was advertised. I Ie later sued
the defendants for the advertised pay.
an The court quashed this claim and said that since the plaintiff agreed
d.r
to the new contract which offered lesser pay the contract had been novated and
Pjies is
hence it is valid. Pay scale is the heart of the contract and changes to that
t same
novates ( makes new contract) the contract. Hence defendants were held not
vW ypes. liable.
•
:"old
;
"
"
t.:;
es
~)
In another case ofJuggilalKamlapat v N.V. Internationale, the Calcutta High
Court also held that "For novation to take effect, modification to the contract
must go to the root of the original contract and change its essential character".
• ~
I~
making a contract is fundamentally tainted. The contract can be rescinded, at
the option of the affected party. The remedy of rescission means that an entire
•
:IA,B
o debt
§
I
~
!t
~i
~
~
contract is set aside.
In contract law, rescission is an equitable remedy which allows a
contractual party to cancel the contract. Parties may rescind if they are the
:.1!A is
ow the
fii'
it
~
victims of a vitiating factor, such as misrepresentation, mistake, duress, or
undue influence. Rescission is the unwinding of a transaction. This is done to
i
• I
~
bring the parties, as far as possible, back to the position in which they were
before they entered into a contract.
•'W tion
Ireare to
Grounds to Rescind
• Misrepresentation: Whether innocent, negligent Rescission for
misrepresentation applies in cases where a party relied on a statement by the
other party to enter the contract, and the statement was not true.
• will
• Law of mistake: when one or both the parties made a relevant mistake of
•
.~~' the
N ds, it
~~
~.
'1')
f"':
~
law for making a contract.
• Bribery and corruption
The outcome of rescission is:
_fthe ~-"
~
• Whatever was done by the parties by making the contract is reversed
I
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21
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LAW OF CONTRACTS
• The parties are put back in the position they would have been in, as if the
contract never even been made. That's the status quo ante
• It's treated as "non-existing".
~~
~
,
\.I]
eacl
~
Thus the insured must reveal the exact nature and potential of
the risks that he transfers to the insurer, while at the same time the insurer must UC·
make sure that the potential contract fits the needs of, and benefits, of the (\.;:
insured.
H,er,
The principles underlying this rule were stated by Lord Mansfield in the p~
leading and often quoted case of Carter v Boehm
or w
The principle of Uberrirnaefidei applies to all types of insurance contracts. ,~
LIC v. G.M.Channabsernrna, (AIR 1991 SC 392) - In a landmark decision the
SC has held that the onus of proving that the policy holder has failed to disclose ~~
information on material facts lies on the corporation.
s(,
It is the fundamental principle of insurance law that utmost good
faith must be observed by the contracting parties and good faith forbids either \..;'
party from non-disclosure of the facts which the parties know.
~
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,.
•
r_CTS
22 L!\\AJ OF COI'JTRACTS
~-----------------------------------------------
In contract law, the implied covenant of good faith and fair
:*he dealing is a general presumption that the parties to a contract will deal with
•
each other honestly, fairly, and in good faith so as to not destroy the right of the
other party to receive the benefit of contract.
In Criminal law - Indian Penal Code, "good faith" is defined
~_here under section 52 as Nothing is said to be done or ; believed in good faith which
1Ito be is done or believed without due care and attention.
t.• to do (or not to do) something, he said to make a proposal. When the other
person (to whom the proposal is made) accepts the proposal. the proposal
becomes a promise. Such promises that form an agreement arc called
-•
l_lable
Reciprocal Promises.
Section 2(f) of the Indian Contract Act, 1982 talks about what are reciprocal
promises. Reciprocal promises are which form a part of the consideration.
Types of Reciprocal Promises
Mutual and independent: It states that the two promises of the parties are
independent of each other and they do not have to rely on each other for
••
certain
performance.
Illustration: There is a contract where A will give chocolates to Band B will
give Pokemon cards to A.A can fulfill his promise even if B does not give him
I the pokemon cards i.e- the absence of Pokernon cards does not make the
.vant performance of his promise impossible.
~ to this The same goes for B. Thus while the acts are binding, they are mutually
a and exclusive and are thus independent of each other.
;,ured Conditional :When the performance is dependent upon the prior performance
e true of the other party. If the first party fails to perform his promise, then it will be
il gets
na ter of
impossible for the second party to perform his side of the contract.
Illustration: if A promises to give money to B, if B promises to buys Maggi
.1
wrong
of
rer must
.fthe
for A. If A defaults, i.e- he fails to pay B, then it will be impossible for B to
hold up his side of the contract as he won't be able to buy the Maggi if A does
not pay him. Thus, this type of contract is considered a conditional contract.
Concurrent
Here, parties promise to do acts that have to be performed simultaneously. A
I_n the party will be exempted from doing their promise if the other party is not ready
or willing to do their promise. Here 'readiness' means financial abilities and
·.s. 'willingness' is perceived through the action of the party.
i.nthe Illustration : P is supplying coats to R. P will only supply the coats if R
dIsclose
•
financially can buy and is willing to buy, and R will only pay ifP is willing to
sell and has the goods ( coats) to sell.
&od ~~
er
• I
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23 24 \...f
LAW OF CONTHAllS
\.,
19. Appropriation of payments.
assU
an<\.;
..
•
iJTRACTS
24
LAW OF CONTRACTS
•
'etor and a
'opriation of
20. What are Quasi Contracts?
Part -B Answers
(.s to take Ans: A quasi contract is a contract that is created by a court order, not by an
ebt. because agreement made by the parties to the contract.
..:_which is There are cases where the law implies a promise and imposes obligations
• on one party while conferring rights to the other even when the basic elements of a
contract are not present. These promises are not legal contracts, but the Court
;,
t_c payer
"tand
recognizes them -as relations resembling a contract and enforces them like a
contract.
These promises/ relations are Quasi contracts. These obligations can also
arise due to different social relationships.
The core principles behind a Quasi Contract are justice, equity and good
ts .•
)table by
conscience. It is based on the maxim: "No man must grow rich out of another
persons'loss."
Example: Peter and Oliver enter a contract under which Peter agrees to deliver a
•
payments
basket of fruits at Oliver's residence and Oliver promises to pay Rs 1,500 after
consuming all the fruits. However, Peter erroneously delivers a basket of fruits at
ator
• John's residence instead of Olivers. When John gets home he assumes that
the fruit basket is a birthday gift and consumes them.
Although there is no contract between Peter and John, the Court treats this as a
Quasi-contract and orders John to either return the basket of fruits or pay Peter.
~'no Features of a Quasi Contract
_lied
tor s
I•.:
1. It is usually a right to money and is generally (not always) to a liquated
sum of money
Ifa 2. The right is not an outcome of an agreement but is imposed by law.
. late 3. The right is not available against everyone in the world but only against a
tl. It is
s curity
specific person(s). Hence it resembles a contractual right.
Section 71 - Responsibility of Finder of Goods
14Jthe If a person finds goods that belong to someone else and takes them into his
custody, then he has to adhere to the following responsibilities:
~Ind
• if
c rge of
1. Take care ofthe goods as a person of regular prudence
2. No right to appropriate the goods
3. Restore the goods to the owner (if found)
•• Example :Peter owns a flower shop. Olivia visits him to buy a bouquet but
forgets her purse in the shop. Unfortunately, there are no documents in the purse
to help ascertain her identity. Peter leaves the purse on the checkout counter
assuming that she would return to take it.
• i
John, an assistant at Peter's shop finds the purse lying on the counter
and puts it in a drawer without informing Peter. He finished his shift and goes
• _aSERIES
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'f
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-.".
LJ 76 '-'
LAW Of- lUN I KACfS
home. When Olivia returns looking for her purse, Peter can't find it. He is liable .'-t
'" .-.,
for compensation since he did not take care of the purse which any prudent man V'
would have done. tl1
Section 72 - Money paid by Mistake or Under Coercion \..-l(
If a person receives money or goods by mistake or under coercion, then he is • T
liable to repay or return it. .'-N
Example. Peter misunderstands the terms of the lease and pays .ft.;},
municipal tax erroneously. After he realizes his mistake, he approached the • PI
municipal authorities for reimbursement. He is entitled to be reimbursed since V'
he had paid the money by mistake.
Similarly, money paid by coercion which includes oppression, extortion or any
such means, is recoverable.
JB SERIES
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•
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26 LP.'.'VOF CONTRt~.CTS
• that belong to someone else and takes them into his custody, then he has to
adhere to the following responsibilities:
• Take care of the goods as a person of regular prudence
• No right to appropriate the goods
• Restore the goods to the owner (if found)
• Peter owns a flower shop. Olivia visits him to buy a bouquet but forgets her
purse in the shop. Unfortunately, there are no documents in the purse to hclp
ascertain her identity. Peter leaves the purse on the checkout counter
assuming that she would return to take it.
•• • john. an assistant at Peter's shop finds the purse lying on the counter and
puts it in a drawer without informing Peter. He finished his shift and goes
home. When Olivia returns looking for her purse, Peter can't find it. He is
liable for compensation since he did not take care of the purse which any
•
rve
prudent man would have done.
I'" Section 72 - Money paid by Mistake or Under Coercion: Ifa person
lecting receives money or goods by mistake or under coercion, then he is liable to
o~ John repay or return it.
~en he Example: Peter misunderstands the terms of the lease and pays
~pable municipal tax erroneously. After he realizes his mistake, he approached the
l~d as a municipal authorities for reimbursement. He is entitled to be reimbursed
since he had paid the money by mistake.
• Similarly, money paid by coercion which includes oppression, extortion or
any such means, is recoverable .
• sold/
22. Explain the Principle of Quantum Meriut.
As the
biJaw to Ans: It means, payment in proportion to the amount of work done. Normally
one cannot claim performance from another unless one has performed his
tM lease obligation in full. However in some cases, anyone who has performed some
nlWled to
work under a contract can claim remuneration for the work which he has
eN
a on-
already done.
When parties enter into a contract there is a possibility for the breach of the
l.ering
contract and breach of a contract can happen due to many reasons. For any
y and the
fa such
breach of a contract to happen, it is necessary that the remedies should also be
made or should be given by any Court. Out of five remedies which are available
~wor the to the aggrieved party, one is a suit upon quantum meruit.
t_ other Quantum meruit involves cases where someone gets a benefit while the
• other party gets nothing. In contracts, this refers to the benefit or enrichment
•
which one party receives as a result of the other party's actions.
•
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JB SERIES
"..., 28 \..t-
LI LAW OF CONTRACTS
In other words, it means that the other party who has received the services
. ~(
-11
is unjustly benefited and must return it to the party who provided such benefit.
For example, 'S' is the daughter and 'M' is the father. They entered into an · 'tfn
agreement where 'M' asked'S' to provide medical care for him while he was \..'1
4. SUI
sick. In return, 'M' agreed not to write a will and agreed to give his estate to'S'
~I
after he dies with an intent to give her a fair portion for the services rendered.
pel
However. 'M' soon died, leaving all of the estates for his brother and nothing
~
for ·S'. Here 'M' was unjustly enriched as he received the services but in return
.S' received nothing. 24.\.11'1
In this example, 'S' seeks to recover a portion of "M's" estate by
claiming the remedy of quantum meruit. This principle is based upon the idea
that recovery should be granted to one party where they have not received the a t<r+ c
value tor the services they rendered or when another party was unfairly and oftfre' !
unjustly enriched.
Conclusion :After a proper analysis of the remedy of quantum meruit, it is clear Egv
that the law requires it to be fair and reasonable. The theory supports equality of after 0
ten~
the parties and helps to ensure that if a person provides a service or a good, then
he should receive the benefit of the contract and in corollary, if that person HV
receives nothing, then that person can avail the remedy by filing a suit to find
upon quantum meruit. si~
eleven
23. What are the remedies for the breach of the contract? And what are ExJwi,
they? Explain.
we\.)
Ans: The Indian Contract Act lays out all the provisions for the performance of a owner
contract. It also contains the provisions in case of breach of contract by either ow\."
party. to the
anov
Remedies for Breach of Contract IS com
When a promise or agreement is broken by any of the parties it is called breach of
WhYn
contract. So when either of the parties does not fulfill their obligation as per the
terms of the contract, it is a breach of contract. ~t
damag
There are a few remedies for breach of contract available to the suffered party.
becV
They are
losses.
~ Recession of Contract: When one of the parties to a contract does not fulfill
his obligations, then the other party can rescind the contract and refuse the '-'
performance of his obligations. 25· V
• As per section 65 of the Indian Contract Act, the party that rescinds the
contract must restore any benefits he got under the said agreement. And An~
contra,
section 75 states that the party that rescinds the contract is entitled to receive
damages and/or compensation for such a recession. way\.i
~ Sue for Damages :Section 73 clearly states that the party who has suffered,
since the other party has broken promises, can claim compensation for loss or
• Di:
...,
the
damages caused to them in the normal course of business.
~
There are two types of damages according to the Contracts Act 1872.
JB SERI
•
)•r ACTS
28 L/\W OF CONTR!\CTS
•
1
Eg: A tenant who signs an agreement to rent a house for a year, but moves out
, it is clear
after only one month and stops paying rent. The landlord may be able to sue the
.lityof
tenant for breach of contract:
~d, then
h.person However. the landlord must mitigate damages by making a reasonable attempt
l~ a suit to find a replacement tenant for the remaining year. The landlord may not
simply let the house lie empty for eleven months and then sue the tenant for
eleven months' rent
.at are Example: A builder is contracted to complete a job for Rsl,OO,OOOover a 4
t.•
mance ofa
either ~
I
week period (at Rs25,000 per week) by a home owner. After 2 weeks, the home
owner decides to cancel the builder's contract for no valid reason. The builder is
owed Rs 50, OOO.underthe contract. The builder has a right under the contract
•
jteach of ~
Ii
~
to the balance amount Rs50,000. However, the builder has a duty to try to find
another paid job during that two weeks. This is reasonable. The duty to mitigate
is common sense. If you suffer losses, you do what you ever can to minimise it.
When does the duty tomigate arise?
.per the .~
It arises , only if you claim damages from another. If you are claiming
'"
I
~.t
damages, you do not need to show that you mitigated your losses. It only
tel party.
0'
becomes an issue if the party you are suing claims you did not mitigate your
losses. They may do this to limit the amount of damages they owe you.
fulfill ~
•
refuse the :r
25. How a contract is discharged?
!~nds the
~t. And Ans: The discharge of a contract happens when the obligations created by a
llreceive contract on one party or all parties involved come to an end. There are many
ways in which a contract is discharged.
leuffered, • Discharge by Performance: When the parties to a contract fulfill the
for loss or obligations arising under the contract within the time and manner prescribed,
•
'2.
JB SERIES
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29 30 \.of
LA W OF CONTRACTS
Example: David agrees to sell his cycle to John for an amount ofRs 10,000
to be paid by John on the delivery of the cycle. As soon as it is delivered, John
pays the promised amount.
• Since both the parties to the contract fulfill their obligation arising under the V
contract, then it is discharged by performance. Now, discharge by the h
performance of a contract can be by: \.;ti
•I
• Actual performance: As shown in the example above. actual performance is
when all the parties to a contract do what they had agreed for under the '-'d
contract. p
•
Attempted performance: On the other hand. it is possible that when the
brSf
promisor attempts to perform his promise. the promisee refuses to accept it. In V
C
such cases, it is called attempted performance or tender.
• Bilateral Discharge: The contract will be mutually discharged where the v
o
parties agree to release one another from any further obligations existing
from the original contract. The contract is discharged despite the parties
'-t
failing to fully or partially discharge all their obligations. InPu
~p
• Accord and Satisfaction: Accord and satisfaction occurs where one party
accords the release of another party, who is in breach of the original
agreement, from its obligations in return for the satisfaction for the
performance of another obligation. vp
• Unilateral Discharge: Unilateral Discharge Occurs where one party has
Di,,:
completed its part of the bargain and agrees to release the other party from AproJ
its outstanding obligations under the contract. The agreement is only
or~
binding if supported by consideration or made under seal.
Eg: J
• Discharge by the Impossibility of Performance: (Doctrine of frustration) mo~
: If it is impossible for any of the parties to the contract to perform their of'tbe
obligations, then the impossibility of performance leads to a discharge of the .'-1
contract. If the impossibility exists from the start, then it is impossibility
ab-initio. However, the impossibility might also arise later due to: Vp
• An unforeseen change in the subject matter.
• Destruction of the subject is essential to the performance. ~i
Eg:
• The non-existence or non-occurrence of a particular state of things which
V
was considered a given for the performance of the contract h
• A declaration of war
\.t.
Eg: Paul enters into a contract with John to marry his sister Lucy within one •I
year. However, Paul meets with an accident and becomes insane. The ~
impossibility of performance leads to a discharge of the contract.
• Discharge of a Contract by Lapse of Time: The Limitation Act, 1963
prescribes a specified period. If the promisor fails to perform and the
'-i
promisee fails to take action within this specified period, then the
latter(promise) cannot seek remedy through law. It discharges the contract
due to the lapse of time.
..
•
1jACTS
30 LAW OF CONTRACTS
Example: John takes a loan from Peter and agrees to pay installments every
~10,000
month for the next five years. However, he does not pay even a single
eM{J,John
•
~.
ider the
installment. Peter calls him a few times but then gets busy and takes no
action. Three years later, he approaches the court to help him recover
his money. However, the court rejects his suit since he has crossed the time-
limit of three years to recover his debts.
• Discharge of a Contract by Operation of Law: A contract can be
r"nce is
discharged by operation of law which includes insolvencv or death of the
hit promisor.
Discharge by Breach of Contract: If a party to a contract I~lilsto perform his
.n the
obligation according to the time and place specified. then he is said to have
:cept it. In
•
vhere the
; .isting
committed a breach of contract.
• Also, if a party repudiates a contract before the agreed time of performance
of a contract, then he is said to have committed an anticipatory breach of
contract.
Iljarties In the below both cases, the breach discharges the contract:
1. Actual breach: In the case of an actual breach. the promisee retains his
).party right of action for damages
original
2. Anticipatory breach: An anticipatory breach of contract the promisee
• the cannot file a suit for damages. It also discharges the promisor from
performing his part of the contract
,_ has
Discharge of a Contract by Remission
l~from A promisee can waive or remit the performance of promise of a contract, wholly
• only
~!. or in part. He can also extend the time agreed for the perfonnance of the same .
>. I
sltion)
Eg: John owes to Peter 20,000 rupees. Peter repays only (15000) a part of the
money he owes to John. However, John agrees to accept it as a final settlement
their fJ of the debt. John's act of remission discharges the contract.
ge of the I
• Discharge by Non-Provisioning of Facilities: In many contracts, the
tA
L-WJ ~
t.i
i} promisee agrees to offer reasonable facilities to the promisor for the
• I performance of the contract. If the promisee fails to do so, then the promisor
is discharged of all liabilities arising due to non-performance of the contract.
.
IAhich
it" one ~
!
~
"-~
~
Eg: Jacob agrees to fix John's garage floor provided he keeps his car out for at
least 6 hours. Jacob approaches him a few times but John is reluctant to get
his car out. John fails to provide reasonable facilities to Peter (an empty
floor). This discharges him of all obligations arising under the contract.
• Discharge of a Contract due to the Merger of Rights: In some situations,
ne. The I it is possible that inferior and superior right coincides in the same person. In
such cases, both the rights combine leading to a discharge of the contract
ct,
• 1963 ~ m
governing the inferior rights.
• the ~& Eg: Rihcards rents John's apartment for two years. After one year of the
~
liU::~I contract, he offers to buy the property from John, who agrees. They enter
into a sale contract and Richards becomes the owner of the apartment. Here
• JB SERIES
31 32
'-'
LAW OF CONTRACTS
\.,
Osne accorded by the lease agreement making him the renter and second by the • 1
sale agreement making him the owner. \.ts
The former being an inferior right merges with the superior one and • T
discharges the lease contract. \.tt.
~t
Novation: Another way to discharge a contract is novation. which simply tt
means substituting the old contract for a new one with different
terms. Novation would be used if a new party takes over the responsibilities of '-' .
mind,
an original party to the contract. un~tl
landrn:
!;j \.;
26. What is meant by Preventive Relief or Injunction? Write about kinds of W This c
injunctions.
ThM
Ans: Definition: An injunction is a legal remedy imposed by the court where
go'( :r
whiCh
one party is refrained from doing something or directed to do a particular thing,
as the case may be. The court's decision is binding and non-compliance can "A\.,Jt,
result in heavy penalties or imprisonment in certain cases.
Requirements of the injunction.
\.,
Injunctions are granted when one party seeks an injunction and convinces the •1
court that not granting it will cause irreparable damage. It is a valid principle in ~
most jurisdictions. Irreparable damage means that the damage caused cannot be vI
compensated by money or any other type of payment. v
The party must prove that there is no other remedy available and if the
court balances the interests of both parties then the interests lean toward the ')
party seeking an injunction. -."
Types of Injunctions The cr
The Specific Relief Act, 1963 section 37 provides two kinds of Injunctions: act~
1. Perpetual Inunction ofwa;
2. Temporary Injunction unt~
The section reads as: 27.~1
• "Temporary injunctions are such as to continue until a specified time, or
until further order of the court and they may be granted at any stage of a An~
suit, and are regulated by the Code of Civil Procedure, 1'908. theM
• A perpetual injunctions can only be granted by the decree made at the giv~
hearing and upon the merits of the suit, the defendant is thereby mat
perpetually enjoined from the assertion of a right, or from the commission
of an act which would be contrary to the rights of the plaintiff'.
Temporary Injunctions features: neg~
• These are also known as Preliminary Injunctions,
• These are invoked as a provisional remedy to prevent any damage to the
UnYe
subject matter. W~
may!
• The main purpose of it is to prevent the delusion of the rights of the parties
and to provide immediate reliefwhen needed.
ma~
-
...._-------------------
•
•
lj"RACTS
32 LA\v or CONTRACTS
• They are non- conclusive and do not decide the merits of the case or any
:::_d by the
issues involved.
and • They are used as a tool to prevent any threatened harm or irreparable
.me
damage till the suit is decided and the parties seek a final remedy.
•
ich simply
.ifferent
• It is for a period specified by the court and the decision of the court as to
the motion of injunction is discretional and not automatic.
The discretion must be exercised, keeping the facts of the case in
mind, towards the temporary injunction which helps maintain the status quo
silities of
until the trial is final. This discretionary power has been exercised in many
•
landmark cases like Siegel vs. Lepore.
•
ut kinds of This category will cover the following cases:
There are no provisions specifically laid down in the Specific Relief Act but it is
governed by the Rule 1 & 2 of Order XXXIX, Civil Procedural Code. 1908,
>_where which reads as follows:
• thing,
ce can "A temporary injunction may be granted in the following cases:
•
nethe ~
~
~~
"
~.
p
~,
\~
1. For the protection of interest in the property
• That property in dispute is in danger of being wasted or alienated by any
party to the suit or wrongfully sold in execution of a decree; or
'inciple in
anot be • That the defendant threatens to remove or dispose of his property with a
view to defraud his creditors; and
:'
lAthe :t • That the defendant threatens to dispossess the plaintiff or otherwise cause
Ii;:
v_the 1*.
g injury to the plaintiff in relation to any property in dispute in the suit.
•• I
The court may by the order grant an interlocutory injunction to restrain such
unchons: action or make such order for the purpose of staying and preventing the damage
• ~
of wasting, alienation, sale or disposition of the property as the court thinks fit
until the disposal of the suit.
• J
i 27.Wbat is a Counter offerand a Cross Offer?
I
tIe, or
1 ofa Ans:A counteroffer is a response given to an initial offer. A counteroffer means
the original offer was rejected and replaced with another one. The counteroffer
~he I gives the original offeror three options: accept the counteroffer, reject it, or
•
nmission
make another offer.
•
I_to the
~
fj
e
~
t~
Understanding Counteroffers
When two parties get together to negotiate a transaction or business deal, one
I
~
may put an offer on the table. A counteroffer is a reply to that original offer and
:ttparties
may change the terms of the deal, including the price. The price may be greater
•
·JBSERIES
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LA W m CUN I HACTS 34
~~
or less than what was originally quoted depending on who makes it. So if the for Rs.
person receiving the original offer doesn't accept or reject it, they may decide to kno\.tr
renegotiate with a counterofTer.
other r
are~.
Eg;Ms. X decides to put her house on the market for Rs30,000. Mr. Y views it
and makes an offer of Rs25,000 instead. Ms. X decides to make a counteroffer 28.~
ofRs28,000 instead, thus putting the onus on Mr. Y to accept reject or counter
that offer and continue negotiations again. Ans~
areW
There is no limit to the number of times each party can counter during have c
negotiations. When countering back. and forth, each offer should present a price conv
less than the previous offer. This conveys to the seller that the buyer is nearing such cc
the final offer.
'-'H
A counteroffer is generally conditional. When the seller receives a low inv<u
offer, the seller can counter with a price that is deemed reasonable. The buyer .•.
can either accept that offer or counter again. The seller can counter the offer. Exav
The person receiving the counteroffer does not have to accept it. debate.
sig~
Eg: A sel1er wants to sell a vehicle for Rs. 20,000. A buyer arrives and offers purcha
Rs 15,000 for the vehicle. The offerer provides a counteroffer. asking for con~
Rs 16,000 with the objective of obtaining a higher price. If the offeree declines, some r
the offerer cannot force the buyer to purchase the vehicle at Rs 15,000, even
though the buyer suggested that price. .
Kinds
.'tt'"
Cross Offer:
~
• C
Where two persons make identical offers to each other, and both such persons
do not know about each other's offer, then such offers are known as cross-offer.
The essentials of a cross offer are as follows: "
,,'-'
E
• Same offer to one another: The first pre-requisite of a cross offer is that ~
two or more persons should make similar offers with the same details. F
• Without knowledge: Such identical offers must be made in ignorance of \.t
the offer made by the other party. A
• The terms and conditions: The terms and the object of the offers must be \r
the same. A set of offers would be considered to be cross offers only when
\.I
the terms and conditions as well as the object of the offers are the same. If Execu
not, then such offers cannot be called a cross offer but a counter offer. Wht'\_,
notaUl
A cross offer does not mean acceptance of the offer. No binding contract is His '-'
created.
•
JB SERIES V
..
•
JiiRACTS _! 4
~3~ ---------------------- LA':'; or CONTRACTS
~
t)., eOciidfethtoe
,I"~
.....,..""." for Rs. 10 lakh. Both the parties made an exact offer to each other without
~ ," knowing about the offer being made by the other. The two letters cross each
other. There is no concluded contract between A and B because both the parties
• are made a cross offer.
.iews it
28.Explain in detail about Executory contract and Executed contracts.
ounteroffer
.ounter
111 ·
during]
•
:e. a p~lce
!Ii
Ans: An executory contract is a contract made by two parties in which the terms
are set to be fulfilled at a later date. The contract stipulates that both sides still
~ have duties to perform before it becomes fully executed. In an executory
contract, the consideration is either the promise of performance or art obligation. In
I
such contracts, the consideration can only be performed sometime in the future.
"wearing:
Before signing, or "executing" a contract, it is very important for all parties
involved to read and understand all of the terms contained within.
• a low
~i\!rs It
• buyer] Example: John has been looking at a TV he wants to purchase. After some
the
•
r offer. ~ debate, he finally decides to go lease it instead. John enters the electronics store.
signs a lease agreement that states the he will pay RsIOOO per month until the
purchase price has been paid in full. Until John makes the final payment, the
• offers contract has not been fulfilled. There are many types of executory contracts,
asking for some more complex than others.
e4lclines,
Kinds of executory contracts:
':' evenl " Rental lease: Tenant is required to pay the landlord rent; landlord required
to provide living space. "
" Car lease: Consumer makes lease payments to the dealership; the
c~ersons dealership provides the car in return. Etc.
:r.-offer.
" Breaching an Executory Contract
Either ( any of the two parties) party to a contract can breach that contract
:.s.
.•
er IS that by failing to fulfill their duties as outlined in the agreement.
For example, if Jim enters into an executory contract to lease a car, then
fails to make the required monthly payments, he has breached the contract.
•
irance of
As a result, the dealer may repossess the car, and sue Jim in civil court for
uncollected payments.
's~ust be
)~when
~Ine.If
) r.
Executory Contracts in Bankruptcy:
When an individual who is party to an executory contract files bankruptcy, he is
not automatically relieved from his performance under the terms of the contract.
atis His options include
•
).ombay
A's house
• confirming in writing that he intends to continue to fulfill the terms of the
contract, or
• rejecting the contract within the bankruptcy.
• JB SERIES
-----;\.--
35
---LA W OF CONTRACTS 36
~\."
Eg: If Jim wants to keep his leased car, he can reaffirm the lease, keep the car,
Exceot
and continue making the lease payments as agreed. Ifhe wants to be relieved
For"'(
from the burden oflease payments, Jim can return the car to the dealer and put
exce'vi
the contract into the bankruptcy.
Executed contracts. .~
Definition: An executed contract is an agreement or Contract between two or '--'tilt
more parties that has been signed and is binding to all parties involved. It is a
fully implemented contracLAlso. the term applies to a contract that has been V
completely fulfilled and it has come to a conclusion. • A
\"".o(l
In most executed contracts the promises are made and then immediately Tn
completed. The buying ofgoods and/or services usually falls under this category. ~I
There is no confusion about the date of execution of the contract since in most till
cases it is instantaneous. The buying of goods and/or services Usually falls under
this category.
'n11
1
'-'
en
Eg : Lucy goes to the local coffee shop and buys a cup of coffee. Peter sells her
the coffee in exchange for the cash payment. So it can be said that this is an
30. ~h
executed contract. Both parties have done their part of what the Contract stipulates.
\".;f
Ans: [
29. Minors are incapable of entering into contract? Explain with case law. reasu
ordinar
rem...."
Ans: The terms "minor" and "infant" are used in law to describe a person who
is under the legal' age of an adult.An "adult" is a person who is 18 Rerr\..r:
older. A contract with minor stands null and void since either party can not a natur
impose it. And even after the person attains majority, the and~
same agreement cannot be ratified by him ..
Case law: TheU
MohiriBibi v. DharmodasGhosh The pr
The case goes back to the year 1903 in which, for the first time, the land\."i1
Council held that a minor's contract is void-ab-initio i.e it is void from party ii
beginning. wer~
Facts of the case - The plaintiff DharmodasGhosh, When he was a minor, the usi
cons~
mortgaged his property to the defendant, a moneYlender. At that ti
result r-
defendant's attorney had the knowledge about plaintiff's age. The plaintiff 1
paid only Rs 8000 but refused to pay rest of the money. The plaintiffs This~
was his next friend (legal guardian) at that time, so he commenced an ackn[ ~
against the defendant saying that at the time of making of a Contract, he was the oM:
minor, so the contract being a void one, he is not bound by the same. \""
• The court held that unless the parties have competence under Section 11
the Act, no agreement is a contract.
• The court also held that The doctrine of estoppel does not apply to the c
in which the person knows the real facts, before hand and here the nTTr'Tlir
of the defendant knew that the plaintiff is a minor.
•
•
'j"RACTS I 36
LAW OF CONTRACTS
~e car,
~t!reved
i Exception to general rule
~ For providing protection to a minor, his agreement is void. But there are certain
end put ~,:;exceptions as well.
• When minor has performed his obligation: In a contract, a minor can be
•
1 two or
.isa
a promisee but not a promisor. So if the minor has performed his part of
the promise, but the other party hasn't the minor being in the position of a
promisee he can enforce the contract.
• A contract entered into by guardian of minor for his benefit: In that
•
IS been
case, a minor can sue the other party when it does not perform its promise.
In the case of Great American Insurance v. MadanLal[l] the guardian on
the behalfofher son entered into an insurance contract in respect of fire for
the minor's property. When the property was damaged and minor asked for
the compensation, the insurer denied it by saying that a contract with a
minor is a void one. But later the court held that this contract was
enforceable, and he is liable to pay compensation.
Ans: Definition: Any damage occurring from a defendant's act that cannot
reasonably be anticipated by the defendant, or that is not the natural and
ordinary result of such act. A defendant will typically not be held liable for
remote damages to a plaintiff's person or property.
'e,aon who Remote damages are damages from an injury not occurring directly from and as
I ~ 18 or a natural result of the wrong complained of. They are damages of an unusual
twan not and speculative nature.
,rliy, the
•the Privy,
i.m the
landmark case of Hadley v. Baxendale. The rules stated in this case were that a
party injured by a breach of contract could recover only those damages which
were either to be considered "reasonably as arising naturally, i.e., according to
the usual course of things" from the breach, or could reasonably have been
)~ minor, considered by both parties at the time they entered into the contract as the likely
tiit time, result of the breach.
tmriff later This is the basis for understanding special damages. In this case, the Court
:P'-'mother ~ acknowledged that the defendant's failure to send the crankshaft for repair was
1-- an action iI the only cause for the plaintiffs' mill to stop, resulting in loss of profits.
:,. was a;
i
::.n 11 eni
i
t_he case i
Iwttorney"
•
.JBSERIES
JB SERIES
J"' '-'
iii
:ft
37 ~
,~
L;\\\' cr CCNTRACTS 38
•
.rties:-
leave it" contracts. The terms, often portrayed in tine print, are drafted by or on
behalf of one party to the transaction - the party with superior bargaining power
who routinely engages in such transactions. With lew exceptions, the terms are
Plcation not negotiable
<-
by the consumer.
Standard form, business-to-consumer contracts fulfill an important
'(wmed:- g, efficiency role in the mass distribution of goods and services. These contracts
r!red and i
have the potential to reduce transaction costs by eliminating the need to
''4II ed. '" negotiate the many details of a contract for each instance a product is sold or a
service is used. However, these contracts also have the ability to trick or abuse
c.e consumers because of the unequal bargaining power between the parties.
•
ract For example, where a standard form contract is entered into between an
ordinary consumer and the salesperson of a multinational corporation, the
consumer typically is in no position to negotiate the standard terms; indeed, the
• died ] company's representative often does not have the authority to alter the terms,
~g the l even if either side to the transaction were capable of understanding all the terms
n~n vs. in the fine print. These contracts are typically drafted by corporate lawyers far
away from where the underlying consumer and vendor transaction takes place.
~rthe The danger of accepting. unfair or unconscionable terms is greatest
i_and where these artful drafters of such contracts present consumers with attractive
n). terms on the visible or "shopped" terms of most interest to consumers, such as
seation price and quality, but then slip one-sided terms benefiting the sel1er into the less
Jility of visible, fine print clauses least likely to be read or understood by consumers.
l&ces,
In many cases, the consumer may not even see these contracts until the
ltili' transaction has occurred. In some cases, the seller knows and takes advantage
of the knowledge that consumers will not read or make decisions on these unfair
.s
111
J.ible
the
to
terms.
The following are some potential solutions or partial solutions to standard
contracts.
nee will • Contracts should be transparent and accessible. This means, that standard
)erom form contracts must be disclosed prior to the consumer transaction;
• Disclosures should be clear and simple, not pages upon pages of illegible
t.and and incomprehensible fine print; they must be easy to read and understand;
• The public and private sectors should test these disclosures in real life
situations to make sure consumers can understand the terms in a timely
manner before the point of sale;
• : Consumers need to pay attention to the contents of contracts, to prevent
against fraud and deception, and to demand accessible, fair contracts;
• JB SERIES
LA W OF CONTRACTS _I _40
__ ~
)1 ~~sti~~i'
• .Where payment of debt to be discharged is not indicated: (Sec.60) :If
a debtor does not exercise his right, the creditor has the right to appropriate
~ustries the payment to any lawful debt though barred by the law of limitation. It is
a settled law that a creditor is entitled to adjust the debts from any security
in the creditor's custody. The time barred debt remains a debt even if the
remedy to recover it is barred.
l_ced by • Where the debtor does not intimate and the creditor fails to
appropriate: (Sec.61) :Where neither party makes any appropriation and
if the debts are of equal standing, the payment shall be applied in
:~ow to
•
right thing 34. What is Anticipatory Breach of a contract?
Ans: An anticipatory breach is a breach of contract before the time of
)~a.bili~y performance. So, if a promisor denies to perform his promise and signifies his
l~nnt In unwillingness before the time for performance, then it is an anticipatory breach of
• contract.
I..0
The promisor can convey his unwillingness either by:
rl.ts? • Expressing it in words (spoken or written)
• Implying it by his conduct
and a
Example: Peter enters into a contract with John on June 01, 2018. As per the
iriation of
contract, Peter agrees to sell his guitar to John on June 10. 2018, for an amount of
take
Rs 5,000. However, he sells this guitar to Oliver on June 07, 2018. Hence, it is an
t, because anticipatory breach of contract due to Peter's conduct.
t&ich is
When a promisor refuses to perform his promise leading to an anticipatory
•
_payer
breach of contract, the promisee is excused from further performance of his
obligations. Also, he can either:
• Treat the contract as cancelled and file a suit against the other party for
damages arising from the breach.
'.ply it • This suit can be filed immediately without waiting until the date of
rse it and
• JB SERIES
41 42
LAW OF CONTRACTS
\"
• Before acceptance: If the offeror dies 37. WI
• If the offeree becomes insane before acceptance, ~p
• The offer lapses provided that the fact of his death or insanity comes to the anot\_.;
knowledge of the acceptor before acceptance
with the
Where time is prescribed
fact ...,.
Where in a contract, a fixed time has been prescribed to the offeree to to a cor
communicate the acceptance, the offeree is bound to accept the offer within the
Typh'.
fixed time so prescribed because after the expiry of the fixed time the offer
lapses. 1. FV
Where no time is prescribed is mad(
intel\.,J
In the contracts where no time is specified within which the offer should be
belief il
accepted it is a settled principle that the offer must be accepted within a
reasonable time. 2 .~,
contr=c
beli~1
By failure to accept a condition precedent
3.ID\.,jf
Where the offer is subject to conditions precedent that is some preconditions fault ca
have to be complied with before the acceptance is made. If the acceptance is Fra~
made without fulfilment of the condition precedent then the offer lapses then another
and there. ConWt
1, ,
36. What is a declaratory decree? State the law with regard to '-'j
declaratory decree.
\;
(
ADS. A declaratory decree is a decree that declares the rights of the plaintiff.
DiftV
This is a binding statement, according to which the court declares certain
existing rights in favour of the plaintiff. The declarative decree only exists when 1.
the plaintiff is deprived of the rights he / she is entitled to. Here, the plaintiff '-'
obtains special relief from the defendant who rejected the plaintiff s rights.
~
According to Section 34 of the Special Relief Act of 1963, anyone who is
entitled to any legal nature or any property right may bring a law suit against ~
anyone who refuses or intentionally denies that he has such nature or right, and
\..f
the court may make a declaration in his discretion that he is so entitled. 4.
The stipulations of the declarative decree would only allow the plaintiff \w
to survive and be strengthened even under adverse attacks so that the attack on
the plaintiff could not weaken his case. In the case of Naganna v. Sivanappat'I V
through arguments, it encourages the plaintiff to come forward and enjoy their
\.I
rights. If any defendant refuses to provide the plaintiff with any rights that the
plaintiff should have, it gives them the power to sue and obtain special relief. 38. C
Ans
cont~
put,
Iwr
J8 SERI
•
• -~
i
i)
~4~L -------------------- L_A_\\_'O_r_c_O_r_JT_R_A_CT_5___
I~ 37.
•
What is Misrepresentation? Distinguish it from fraud.
•
with the facts is called misrepresentation. It is an untrue statement of a material
fact made by one party which effects the other party's decision in corresponding
qiferee to to a contract.
. ~thin the Types of Misrepresentation
e,e offer 1 . Fraudulent misrepresentation: It will happen when a false representation
is made and the party making the representation knew it was false or rmade
intentionally as to whether it was correct or incorrect - the lack 0 f an accurate
!ould 'be belief in its truth "viii present it a fraudulent misrepresentation.
jeithin a 2 . Negligent misrepresentation: It means a declaration made by one
•
:c~ditio~s
;.ance IS
3.Innocent misrepresentation: Misrepresentation made completely without
fault can be described as an innocent misrepresentation.
Fraud: A deceptive act done intentionally by one party in order to influence
aites then another party to enter into a contract is known as fraud. Section 17 of Indian
Contract act provides two essentials to prove that an act is fraud.
•
regard to
1. A person should make a false statement having the knowledge that the
facts are false.
x.
;!.aintiff.
'es certain
when
.~intiff
Differences between Fraud and Misrepresentation
1. Fraud is an intentional misrepresentation made in order to deceive
someone, misrepresentation on the other hand is an innocent statement
made without any intention to deceive.
2. Intention differentiates the two; it is an important element as fraud is
).who is intentional while Misrepresentation is not.
uit against 3. The aggrieved party inn fraud has a right to sue but it is not so in
l~t, and misrepresentation.
4. The party who made a fraudulent statement cannot take the defence that
'-1' ur
e p amn
• ckon
ranappalli.
the other party had means to discover the , in cases of misrepresentation
this defence can be taken .
5. Fraud is defined in Section 17 and misrepresentation is defined in
Section 18 of the Indian Contract Act, 1872.
:rttY their
t~hat the
38. Discuss the Rule laid down in Hadley and Baxendale.
fIIl!!Ifief
• put on the liability beyond which the damage is said to be too remote and,
• SERIES
JB SERIES
LAW OF CONTRACTS
\.f
therefore, irrecoverable. The classic contract-law case of Hadley v. Element
Baxendale draws the principle that consequential damages can be recovered
l~r
only if, at the time the contract was made, the breaching party had reason to
foresee that, consequential damages would be the probable result of breach. 2"\Jr
3. C
This formulation diverges from both the general principle of expectation
damages in contract law and the principle of proximate cause outside the law of 4~'
contract.
All~l
The facts of the case are as follows: The Plaintiff was the owner of a steam-
All (\.,.1
driven mill which had a broken crankshaft. They had to send the broken part always
from Gloucester. in the west of England, to Greenwich, near London, whereir
Wit~t
would be used as a model in the manufacture of a replacement part. It was are Azn
important to have the part transported quickly, as the Plaintiff did not have a
All~
spare, and was losing profits while the engine was out of order. Pickfords, the Only th(
shipping firm, was late in the delivery of the part, and the Plaintiff sued for the no l~l
lost profits caused by the delay.
hencc.il
Issues When)
The main issue in the case was: Whether or not the loss of profits resultant An \-lIl
from the mill's closure was too remote for the claimant to be able to claim? conditic
Summary of court decision and judgment Acc~
The Trial Court left the case generally to the jury, which awarded the Plaint" is ma-le
damages of £25 above and beyond £25 that Pickford had already paid ' cont~1
court, The Exchequer Chamber reversed, but not on the theory of remoteness.
On the facts, the Court found that losses of this kind did not arise according
~j:~
the usual course of things, and the plaintiffs had failed to disclose their p All \.,;'
loss of profits at the time of making the contract. Only damage that could cornpet
foreseen (or contemplated as some judges continue to insist) at the time of ... r rv ..,...
rj are tv
into the contract, is recoverable in damages. The court concluded that An agl
Plaintiff had failed to satisfy either test of reasonably arising natural damages sati~
reasonable contemplation. The two branches of the court's holding have ('{)nn~'Il • 1
to be known as the first and second rules of Hadley v. Baxendale. ~
39. All contracts are agreements but all agreements are not
'-1
Discuss.
a.:v
'iIl£ v.~ i Elements of a agreement are:-
recovered: 1. Presence of parties
.on to' 2. Promise
If breach. 3. Consideration
:retation' 4. Consensus parties
•
he law of
All Contracts are Agreements
,. I
• II When Agreement becomes Contract
•
without consideration is void and it cannot form a valid Contract as a
void agreement is not enforceable by law
For example, If A promises to give to B Rupees 10,000 without any
consideration, it will be a void agreement.
• The parties are competent to contract. (S. 11 and S. 12) : Every person
;;Iout
is competent to contract who has attained the age of majority, is of sound
"
~es,
Of the
mind and is not disqualified by any law from contracting.
• Their consent is free. (S. 13-22) : The parties should enter into a contract
by their free consent. There should not be any coercion, undue influence
_is
, misrepresentation, fraud and mistake.
is with
"..
JB SERIES
45 LAW OF (UN I KALI ~
• Their object is lawful. (S. 23-30) The object and consideration need to '-'A
be lawful. Every agreement of which object or consideration is unlawful agrVll
is a void agreement that th
For example, A, Rand C enter into an agreement for division among lea~)
them of the gains acquired by them by fraud will form a void agreement
as the object is unlawful. FlI~l'
I
-_TS
A nudum pactum might be made verbally or in writing. Since these
dto
!
in wful I~ agreements are unenforceable, they may not be pursued in court. This indicates
that these agreements do not come under the categories of agreements that can
• ,
I
~~
t
lead to legal action.
The contract, on the other hand, is regarded as legitimate if it is sealed.
Furthermore, some contracts, such as bills of exchange, sealed documents, and
•
---
No nudum pactum is enforced under English law. Every day. an
tt
~.
enormous number of agreements are formed. and it would be absurd to treat
)~~leIS !
each one as a legally enforceable contract.
IS a
aws to
Itractual
I
~
it,
Anson states that when one understands the history of assumption it would be
clear that even in ancient days there was speculation that an agreement which is
(.ined without any consideration is legally binding and can parties be bound to
perform such agreements.
• the
onlracl,
c.rged
Under English law contracts can be formed in two ways namely,
• contract with consideration : Contract with consideration is an agreement
that satisfies all the six essentials of a valid contract
'11/
'1
by
ge of
• contract by a seaL : Contract with consideration is an agreement that
satisfies all the six essentials of a valid contract
1.
".d by
).new
the
happen
42. Unlawful agreements.
Ans. unlawful agreements are those which are not enforceable by the law i.e
performance of the agreement can be done but there is no legal recourse in the
eye of law.
large of There are some basic elements which makes the contract illegal or
;.' the unlawfuL Indian Contract Act 1872 deals with the conditions when the
i,ions agreement becomes void.
Incompetency - When the parties entering into a contract are incompetent i.e.
)Irine minor, Act 1982, a person of unsound mind.etc.
1 u of Illegal intention - If the subject matter of the contract is not authorized by
t.said the provisions of law. Then the contract is considered to be 'illegal'.
• When the terms and conditions of the contract are mistaken by either
1.ans
• of the party - When the terms and conditions of the contract have not
been understood by the party or are vague in nature.
• Mistake and Fraud -When the terms of the contract are misrepresented
*re is by either of the party or influence a person to enter into a contract
• s no fraudulently then the contract considered to be illegaL
iiither • Forbidden by law - If an agreement is such a nature, that it would defeat
the provisions oflaw the contract is considered to be "void".
l.hree • Injury to a person or a property - when the contract is of a nature that
is truck it would cause injury to a person or a property then the contract is
·eh of considered to be "void".
•
.IERIES
JB SERIES
r
~
Ii
~~ "
47
LAW OF CONTRACTS
~
ft
e
48
"'-'
• Opposed to public policy -when the agreement
policy then the contract is considered to be "void".
IS opposed to public I
t.
4J
Examples of illegal contracts 1. A I
Here, are some examples of illegal contracts
• Contracts for the sale, or distribution of illegal substances i.e. drugs.
"':
• Contracts of activities which are considered illegal by the law.etc
C'
...,
Ans F
Conclusion: If the terms of the Contract are illegal or opposed to the public •
·
policy then the contract is considered to be "null" in the eyes of Jaw and it
cannot be enforceable in the court.
-
1ssM
•
1I..e
V
'-'
'-'
U
W
Issues
Wa~
Does tl
Jud~
~~~~
~~~~
Atk·
rela~
was",
Judl!.l
promis
hus~
RefC
W
W
'"
"
"I
.- LAW OF CO['HR,t'lCTS
.AfjS _I 48
;•;.
1. A husband promised to wife that he would give Rs 3000 every month
to her for running the family, however, he committed a breach of that
..
promise. Can the wife sue her husband for breach of contract?
• II
• He committed a breach of that promise,
Issues of the case:
••
,
• Can the wife sue her husband for breach of the contract.
• Principle: This case similar to a famous case Balfour Vs Balfour
The Plaintiff and the Defendant were a married couple. The Defendant
•
husband and the Plaintiff wife lived in Ceylon where the Defendant
worked. In 1915, while the Defendant was on leave, the couple returned
• The Plaintiff brings suit to enforce the Defendant's promise to pay her
£30 per month. The lower court found the parties' agreement
•
Does the husband's promise to pay £30 per month constitute a valid contract?
Judgment in Balfour v Balfour 1919: The court said that it is essential that
•• their day to day affairs. The agreement was purely social and domestic nature
and therefore it was presumed that the parties did not intend to be legally bound.
Atkin held that the law of contract was not made for personal family
relationships. As there was no intend to be legally bound when the agreement
• Judgement: Based on the above judgement in the given case also her husband's
•
promise also was not intended to be legally binding. So his wife cannot sue her
husband for breach of contract as there is no valid contract at all.
••
• J8 SERIES
49
LAW OF CONTRACTS
therefore, a party should not be made to compensate in such event. However, • irt(
not providing adequate compensation may also cause loss to the other party. ~
But in the given case there is no loss of that sort. So A need not compensate B Facts ir
and also B do not have any remedy except marrying another suitable person. • I\.I~
•
3. A owes to B Rs. 2000/- but the debt is barred by the limitation Act. A •
orally promises to pay the debt can B recover the none. This. _'"',
Ans: case~
Facts in the case : hous...,
1. A owes to B Rs 2000. The nu
2. That debt is barred by Limitation Act. defm\.,r
3. A promises to pay the debt. parties:
Facts in issue: Indi,,-,
1.Can A recover the debt barred by the Limitation Act? contrac
2. Ifhe can recover, how can he? legal~
For ex;
Time-barred debts are debts that Act.~
collectors to sue you for collection. Time-barred debt is also Rule'",
as debt that is beyond the statute of limitations which is no no longer Ie
• A~
collectable. But Creditors and debt collectors can still collect time-barred de
~
with calls and letters. At the same time borrowers must have a moral obligat
•.. I I
:!.,. SiS -I· : repaytime-barred debt, but not a legal obligation.iecourts"::~::::::::(t:em
W to pay as time barred debts not enforceable by law.
••
Iii·
•• ,>
4. A a minor entered into a contract with B a money lender and mortgaged
his house for Rs 20,000 by misrepresentation himself as major after
knowing the fact that A is minor B wants to cancel the contract and
I
;!' recover the money advanced to A . Advice B ?
? Ans:
!l<
o act B Facts of the case:
•
~the I
,r.the '
I
• After knowing the fact that A is minor B wants to cancel the contract.
• He wants to recover the money advanced to A .
•• house.
The money-lender moved to take possession of the minor's house when he
defaulted payment. The court, however, said since an agreement with minor
•
parties is void, the money-lender could not enforce this contract.
Indian courts have repeatedly used this judgment to abrogate minors from
• contractual obligations. Hence, minors cannot enter into agreements unless some
legal provisions allow them.
•
id debt
.wn
For example: A minor cannot transfer property as per the Transfer of Property
Act. He can, however, receive property from other persons under a legal contract.
Rules relating to Agreement with Minor Parties
• Although, as a general rule, a contract with minors is void, we must keep in
_ ally
ebts mind the following rules as well:
liiltion
JB SERIES
51 LAW OF CONTRACTS
r_--
I 52
• A contract with a minor is void and, hence, no obligations can ever arise on s~j
him thereunder. t\J
• The minor party cannot ratify the contract upon attaining majority unless a law • Dut
~
f\..(I
specifically allows this.
r.n1(
• No court can allow specific performance of a contract with minors because it
•
is void altogether.
The Partnership Act also prohibits minors from becoming partners in a firm.
· \_,<j
WIt}
They can. however, receive the benefits of partnership and ratify the same
upon attaining majority. \.:T
• The rule of estoppel under evidence law does not apply to minors under
contractual obligations. In other words, even if a minor forms a contract
claiming majority age, legal obligations cannot arise against him.
· ...,.
of tl
him
~
• Parents or guardians of minors can name them in contracts only if it benefits
them. But even in this case, the minor cannot be personally liable. • rOll
Judgement: So based on the above reasons in the given case also B the money
gtfo
lender cannot sue A a minor and recover his money he lent. \,:
Judge
5. A a singer promised to perform a concert in B theatre. But one day 0"'V
before the performance A met an accident which made her fail to perform
the promise. B wants to claim damages against A for breach of contract
.decide?
Ans: Facts of the case:
• Aa singer promised to perform a concert in B theatre. AnsW'
• One day before the performance A met an accident
• The singer fail to perform the promise.
• B wants to claim damages against A for breach of contract.
.~
• P.
1;1
1:
Issues in the case: Can B claim damages against A for breach of contract? • Wh;
PriVI
Principle: Discharge of contract by impossibility of performance usually ,-.".uv
'U".. before
when the contractual duty cannot be performed because of death, illness, or a bre~.
reason caused by the other party .... Subjective impossibility occurs when thereb)
promisor is unable to perform the service due to death or illness.
"'--------------
• r
•
JNTRACTS
• -0'
t
~ 52 L;"\/J OF corn-RACTS
subject to all the duties of a bailee, including a duty to return the goods after
r .. arise on'
the true owner is found. His / liabilities are
• Duty to proper and reasonable care: According to Section 151, the
:wsalaw
finder of goods should take such care of the goods as a man of ordinary
prudence would take of his own goods .
.• ause it
• Duty not to make unauthorized use of goods (section 153 & 154) :if the
finder of goods make any unauthorized use of the goods found inconsistent
•• a firm.
with the condition of the bailment, he is liable to make compensation to the
1.
, lbe same ~.
• e
t-
I
owner of goods for any damage arising to the goods from or during such use
of them.
.Iunder
a contract
i.t benefits
I
!"J
~
!;
N
• Duty not to mix goods (section 155 - 157): Ifhe mixes the goods found to
him thefinder of goods is bound to bear the expense of separation, and any
damage arising from the mixture.
• Duty to return goods (section 160 & 161) :It is the duty of the tinder of the
goods to return or deliver the goods found to the true owner as per his
timoney! directions before the expiration of the time period specified by him.
~ Judgement: As per the above rules X should hand over the goods to Y the
I
owner of the goods.
t~e day'
:.rform
contract 7. A promised to supply some fruits to B on 1 January 2013 but A on 20
• December 2012 expressed his inability to deliver the goods. what is the
remedy available to B against A ?
~•.?
• A on 20 December 2012 expressed his inability to deliver the goods.
Issues in the case:
• what is the remedy available to B against A ?
Principle : Anticipatory breach of contract. When a person repudiates a contract
llyoccurs before the stipulated time, for its performance has arrived, it is an anticipatory
1e, or a breach. If one of the parties to a contract breaks the contract the party injured
w~n the thereby has a right of action for damages as well as he is also discharged from
performing his part of the contract (Section 64).
Judgement: As per the above principle in the given also
.IV? B can claim damages from A.
• 8. A offers through a letter to sell his car to B for Rs 15000/- B at the same
• time offers by a letter to buy A car for Rs 15000/- . The two letters cross
•
each other in post. Is there a concluded contract between A and B.
Ans:
Facts of the case:
b!lee he • A offers through a letter to sell his car to B for Rs 15000/ B at the same time
• as is offers by a letter to buy A car for Rs 15000/
•
'e is also
JB SERIES
S3 LAW OF CONTRACTS
J8
• i~
•'i ACTS
I
_I 54
LI\W OF cnl\JTR i'I.CTS
• ~ 10. A ,B, C jointly promise to pay D Rs 3000 A and B are untraceable. can
•. i
D compel C to pay him in full ?
e parties ~
)e,ffers. f Facts of the case:
offer as • A, B , C jointly promise to pay 0 Rs 3000.
~.any • A and B are untraceable.
• Issues in thiscase :
• Can D compel C to pay him in full ?
•
v.
~.tons
Ie
Principle: Section 42 of the Indian Contract Act, 1872 provides for devolution of
joint liabilities in a contract. It states that when two or more persons han? made a
joint promise, they are required to perform the promise jointly, and on one of theirs
death, jointly with the legal representatives of the promisor.
v.
:.as
Anyone of joint promisors may be compelled to perform.-When two
us offers
or more persons make a joint promise, the promisee may, in the absence of
express agreement to the contrary, compel anyone or more or such joint
promisors to perform the whole of the promise.
Judgement: As per the above given principle in the given case D can compel
La C to pay him in full as per section 42 of the Contract Act 1872. Later C is
• entitled to recover the money he paid on behalf of them, if they are traced if not
from their legal heirs.
•• the money and things which he took away through extortion. Examine the
legal position of such an agreement.
•
)ething
• B gives an undertaking that he shall repay the money and things which he
took away through extortion.
•W I
pay the
a is
••
Issues in the case:
• JB SERIES
1#
~
.""
i·J
~
\.,.,
55
LAW UI- lUN IKAll~ 56
B" \.,
The bank had hinted at prosecution and 'transportation' of the son if the father i
t~
14. A pay
did not agree to execute the mortgage. The agreement to execute the mortgage da ug""" ,
was set aside because undue influence had been proved. examples
JUdgement :Based on the above Rule undue influence and the judgement
ADS: Fac
'-'
given in the case William vsMaylc in the case also undue influence is
clearlyvisible. \.I
• Apa
<\Jg
12. A proposes by a letter to sell his house to B at a certain price. B accepts • C di.
A proposal by a letter scnt by a post. Explain the legal position and when Iss~
acceptance is complete.
• W~a
Facts of the case : • ~l
• A proposes by a letter to sell his house to B at a certain price. Princv
• B accepts A proposal by a letter sent by a post. A contrac
Issues in the case: may s\...6
• What is the legal position and when acceptance is complete? contract
Impos~
Principle : According to section 4 of Indian Contract Act, 1872, the where~
communication of a proposal is complete when it comes to the know ledge contra
the person to whom it is made. Here when'B' receives the letter of pro JUJUI ••_.
commo
then the communication of proposal is complete. Superven
A may revoke his proposal at any time before or at the moment when B posts explaiv
his letter of acceptance, but not afterwards. 1. Destru
On th4Jc
13. A promises B to sell his car for Rs 1,50,000 on a certain date. B agrees liable to
to pay the price on receipt of the car. A refused to sell his car to B . Explain reasork
the future consequences in the above agreement. ? 2. Chont.
Thep~
Facts of the case: law. I\,;,
3. Non-c
• A promises B to sell his car for Rs. 1,50,000 on a certain date.
• B agrees to pay the price on receipt of the car. Whe~
, certam st
• A refused to sell his car to B.
f\.;
Issues in the cases : . the
Judgement: Based on the above principlethe promisee may put an end to the
contract. S60 in the given case also B also can put and end to his contract with
A.
•
•
:jNTRACTS ~ )6 l/\W OF CONTRACTS
:.
•
.ernent
examples?
Ans: Facts of the case:
•
e B accepts
r_nd whes
daughter.
• C dies before marriage.
Issues in the case;
•
Ie
~ • What is the fate of the B?
~ • Explain with suitable examples'?
•
ll{
~ r.
Principle:
•
A contract, which at the time was entered into, was capable of being performed
may subsequently become impossible to perform or unlawful. In such cases the
•_72,
lOW ledge
contract becomes void. This is known as the doctrine of Supervening
Impossibility. It is also known as the Doctrine of Frustration. Frustration occurs
where it is established that due to subsequent change in circumstances, the
contract has become impossible to perform or it has been deprived of its
• ropos commercialpurpose .
Supervening impossibility may occur in many ways, some of which are
explained below:
Itposts
•
~rees
1.Destruction of the subject matter of contract
On the destruction ofthe subject matter, a contract is discharged and no party is
liable to perform. Eg: because of death, illness, destruction due to fire or a
J xpJain reason caused by the other party etc.
• 2. Change of Law
The performance of a contract may become unlawful by a subsequent change of
)•. an
thecontractual duty cannot be performed because of death, illness, or a reason
caused by the other party.... Subjective impossibility occurs when the promisor
is unable to perform the service due to death or illness.
•1_0 the
." with
• JB SERIES
r:..7 rO
..)u
~, \.,
15. A invites B to dinner, B accepts the invitation but does not turn up at 17. X ag
the dinner can A sue B for the loss he has suffered? 20144Jt
X and Y.
Ans: Facts of the case:
• A invites B to dinner. Ans: '-'
• B accepts the invitation.
Facts ~t
• But does not turn up at the dinner
Issues of the case: • \..f(
20
• Can A sue B for the loss he has suffered?
Issue~
Principle:An offer must be such that when accepted it will result in a valid • W}
contract. A mere social invitation cannot be regarded as an offer. because if
Princi~:
such an invitation is accepted it will not give rise to any legal relationship.
(Writ) "I j
Eg : 'A' invited 'B' to dinner and °8° accepted the invitation. It is a mere social
Judge~1
invitation. And 'A' will not be liable if he fails to provide dinner to B.
to clac,
To be enforceable by law and to become a contract an agreement must
of the cor
been made with a view to create legal relations. Here, an invitation is accepted
with a view to create friendly relations and as a result it's not a contract. '-'
18. Mr.I
Judgement: No. As an agreement has not been entered with a view to
ac~
legal relations and, an invitation has been
acceptedwith a view to create friendly relations and as a result it's ADS: \.;
contract, and A cannot sue B in the court of law.
16. X a minor borrowed from Y a sum of Rs. 10,000 the payment of the
.
• F-~·
~]
Judgement :Based on the above rule Y cannot hold Z liable for the
money he lent to a minor.
• r
,!'RACT 1..
'··.
::. X agreedto let his hallto Y for somepublicentertain:::::O~:::st
•• ,
• c, 2014. On 20 July, 2014 the hall was destroyed by fire Discuss, the rights of
i
~
X and Y.
f· Ans:
, Facts of the Case:
•• " • X agreed to let his hall to Y for some public entertainment on 15t August
2014 . On 20th July, 2014 the hall was destroyed by fire.
Issues in the case:
• What are the rights of X and Y.
Principle: Doctrine of frustration, impossibility of performance.
IS~.
~e
, .•
must
i.cepte
SOCI
(Write a few lines about Doctrine of Frustration in the exam)
Judgement: Based on the above principle Doctrine of Frustration Y has no right
to claim any damages due to the hall was destroyed by fire and the performance
of the contract has become impossible.
act.
•• Ans:
• Principle:
•
not enforceable.
In legal language, "the offer to pay the donation Rs.50,000 a is not
•
er arise
supported by consideration" from the promisee.
•w
unless a
orphanage cannot recover the amount through the court of law becausethere is
no consideration provided by one party, there is no contract at all. When
ause there is no contract there will be no question of enforceability of it in the
COurt.
J8 SERIES
59
LAW uF COlIjjRA(l~
\."
19. Mr.Pradeep hired a godown from Mr.Dinesh for a period of ten months
and paid the whole rent to him in advance. After four, months the god Own 20. Vi
was destroyed by fire and Pradeep claimed a refund of a proportionate release
amount of the rent. Is the claim valid. the v~,
Ans: Facts of the case:
.~I
'\
JB SERI
• I
o• TRACTS
I LAW Of- (UNIKALI~
el:0nths
e down 20. A tells his wife that he would commit suicide if she does not give a
i.te release deed in favour of his brother. She does so under this threat. Decide
the validity of this contract.
•
. _nths
~
~
"
L~
II
Facts
•
of the case:
A tells his wife that he would commit suicide.
•
~
I/i, • He said so ifshe does not give a release deed in favour of his brother.
• She does so under this threat..
•
.ine of
52. It says
committing or threatening to commit, any act is forbidden by the Indian Penal
Code (45 of 1860) or the unlawful detaining or threatening to detain any
property, to the prejudice of any person whatever. with the intention of causing
any person to enter into an agreement.
:.comes Coercion means forcing an individual to enter into a contract. When
:AJ.event, intimidation or threats are used under pressure to gain the party's consent, i.e. it
is not free consent.
Techniques for causing coercion:
>I_or the
• Threatening to commit any act which is prohibited by the Indian penal
~,d into Code.
•
rformed:-
!e ntract
~purpose
• Detaining not as per law or even threatening to detain any property,
with the sole intention of compelling a person to enter into a contract.
Case law: Ranganayakamma Vs Alwar Sett; In this case the widow was
•
>.nce:-
prohibited from removing the corpse of her husband until she consented for the
adoption.
The court said that her consent was not free and it was coerced. It is
clear that coercion is committing or threatening to commit any act which is
~ the contrary to law.
and
1
•
l.t act
been
Judgement: Based on the above principle in the given case It is clear that
A coerced his wife give a release deed in favour of his brother by threatening
to commit suicide if she does not give in his brother's favour. So it is not a free
!ue to consent of A's wife. Hence it is a invalid contract.
ep ion to
.tract. 21. The wife of person died from tin poisoning ca used by the tinned
salmon(fish)bought from a dealer. What damages can the husband claim.
•
'posed to
Facts of the case:
• The wife of person died from tin poisoning.
lAif
t. • It was caused by the tinned salmon(fish)bought from a dealer
• JB SERIES
· \.
I. '-'
61
LAW Uf- C.ONI HAC!S ---:T,-,-'
~6_2
22. A, who is B's friend seeks the help of a few persons in putting down a
fire in B's house. B promises to give a Rs 10,000 for his timely help. Can A
.~
Issues in t
According to section 2(d) of the Indian Contract Act "when at the desire
of the promisor, promisee or any other person has done or abstained fro
v
doing or does or abstains from doing or promises to do or to abstain
doing something such act or abstinence, or promise is called a
consideration for the promise." "
U
Essentials V
1. Something should be done or abstained from doing at the desire of
the promisor only.
• r
• I L/\\/'./or ccr~TR:\CTS
•
2. Promisee or any other person has done or abstained from doing
something at the desire of the promisor.
'-bi
nger beer
i.mposed
r
3.
4.
5.
6.
It can be Past, Present or Future.
It is not necessary that Consideration must be adequate.
Consideration must be real and not Illusory or impossible.
It must be Lawful.
Judgement: As per the above principle in the given case Promisee (A)
has sought the help of a few persons in putting down a lire in 8's house at the
desire of the promisor ( 8 ). For that promised to pay him Rs 10.000 tor his
timely help. So it is a valid contract between B and A : So A can recover the
money promised by B to A.
>.
ause it w
lead
~e.Jiltionsh
23. A, Band C jointly promise to pay DRs.
D compel C to pay him in full.
1l1eealer is
• A, 8 , Cjointly promise to pay 0 Rs 3000.
w sum • A and B are untraceable.
Issues in this case :
Ana • Can D compel C to pay him in full ?
pean A
Principle: Section 42 of the Indian Contract Act, 1872 provides tor devolution of
• joint liabilities in a contract. It states that when two or more persons have made a
joint promise, they are required to perform the promise jointly, and on one of theirs
•
vtthe
death, jointly with the legal representatives of the promisor.
Anyone of joint promisors may be compelled to perform.-When
more persons make a joint promise, the promisee may, in the absence of express
two or
agreement to the contrary, compel any 1[one or more] of such joint promisors to
•'.
Judgement: As per the above given principle in the given case 0 can
compel C to pay him in full as per section 42 of the Contract Act 1872. Later C
is entitled to recover the money he paid on behalf of them. If they are traced if not
from their legal heirs.
~.sire
l~from __ 000__
18l'from
JB SERIES
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t--4
I
.....
.....
I
~
~
~
~ ~
t--4
~
~
~
• 23.Polygamy
24.Explain how intestate succession of the property or Hindu male devolves.
•
26.What is a Valid Custom? And what are its requisites'?
27.What are the sources of Hindu Law?
• 28.What are the grounds for divorce under Hindu Marriage Act 1955? State
;•. 29. What are the ceremonies to be performed for the Hindu marriage? Is
registration compulsory? Explain.
30.What are the changes brought by the registration in the law of adoption?
•
Explain.
31.Write a note on Hindu woman's' property rights.
•
34.Differentiate between judicial separation and divorce.
35.Explain different modes of partition Modes of Partition of joint property of a
• family.
• 38.Explain the position of de facto guardian under the Hindu Minority and
Guardianship Act, 1956.
• 40. Who is the guardian of a minor child? What are the powers of a natural
• guardian?
41.Who is karta in Joint Hind family? And explain the powers ofkarta.
•
•
.JB JB SERIES
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FAMilY
Family-law vanb~5
•It 0fien "r{
Part - A Answers goodnes~a
1. Joint family .Sometiv
another inn
Ans. Joint family (also undivided family, is a large undivided family where • High ea~1
than one generation live together in a common house. joint family is a form of • The cost 0
where the grand-parents, father, mother, and children live unitedly under one their cht..lr
such form of farni ly system, every member: the child re:
.In large~1
• Is expected to make some financial contribution to the common fund, Since, pl1
• Share common rights in the household property.
particip~
• Make efforts to safeguard the common property,
feeling ~i
• Co-operate, respect, and support each other, ion: JI
• Eat the food made at the common kitchen. and each ot~.
• Make their daily expenditure from common fund. ily.
In such form of families, the son doesn't live separately after getting married.
he lives with his wife and children in the same house along with his other
members.
The eldest male member is usually the head of the joint family. His powers
functions are like that of a trustee. He is entitled to take economic and
decisions on behalf of the family.
Advantages of Joint Family
• ",;~'''I1I'Hlntages
of Joint Family
• -It often creates parasites who love to feed on other's income. They exploit the
goodness and principled behaviour of its partners.
•
I~here
• Sometimes some crooked member of the family plot to torture and exploit
another innocent member of the family.
• High earning members often insults the low earning members.
• The cost of education has gone up high. The high earning members often want
t~of
e~ne their children to study in costly schools but they don't want to share the burden of
1.•
the children of the other members of the family.
-In large families, most of important decisions are made by the head of the family.
Since, all the individuals within the family doesn't get the opportunity to
participate in major decisions of the family, they often feel lost or develop a
• each other. The felling of togetherness and selflessness is the essence of joint
•
ily.
T~d.I
~er ns. "Maintenance" is an amount payable by the husband to his wife who is unable
maintain herself either during the subsistence of marriage or upon separation or
plvers
CtJ1d Maintena nee (pendentelite)/ Interim maintenance
emporary maintenance is granted by the court during the pendency of proceeding
• divorce or separation to meet the immediate needs of the petitioner.
_~"U~I Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife
• be granted relief if the court is satisfied that the applicant has no independent
~emore _ncolme sufficient for his or her support and necessary expenses of the proceedings
• under the Act.
le..!Jl. Interim maintenance may also be claimed under Section 125 CrPC by the wife
• the pendency of proceeding for regarding monthly allowance for maintenance
Section 125(1) CrPC.
Furthermore, Section 36 of Special Marriage Act, 1954, Section 39 of the Parsi
and Divorce Act, 1936 ,Section 36 of Divorce Act, 1869 which applies to
persons professing Christian religion,also make provisions for the wife to seek
expenses from the husband .while the suit is pending.
All these provisions specify that the application for interim maintenance has to
be disposed of within sixty days of service of notice on the respondent.
Permanent Maintenance
It is the maintenance granted permanently after the disposal of the proceeding
for divorce or separation. According to Hindu Marriage Act, 1955, Section 25 and-
Applicant, either wife or husband is entitled to receive from the spouse for his/her
• ~ai~tenance and support a gross sum or monthly or periodical sum for applicant's
. lIfettme or until he/she remarries.
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5
FAMILY
3. The petition on such an allegation must be presented in the court within one year
118 a H'
of knowledge of such facts.
~ also 4. No sexual relationship is established after knowing about alleged facts.
i fe to
Duties of Karta
ns. Karta means manager or joint family and joint family properties. 1 le is the
who takes care of day to day expenses of the family looks after the family and
the joint family properties ... In the entire Hindu Joint Family 'Karia' or
occupies a very important position.
~~n 3 Following are the duties of karta
)lJII!lOn • Maintenance: All the members of the Hindu Joint Family whether coparcenary
h_and; or not have a right to maintenance. It is the duty of the Karta to maintain all the
: M'ne of members. No member of the family can be deprived of the right to maintenance
• and if they areneglected they can challenge it before the court and claim their
right and arrears of maintenance.
• • Marriage: Karta has a duty to engage the unmarried members of the family in
wedlock especially of daughters as their marriage is considered to be sacrosanct
in Hindu law. In the case of Chandra Kishore v. Nanak Chand, it was held that It
is the duty of the Karta to bear all the expenses of the marriage from the joint
family funds, or if in a case the expenses are incurred by some other sources
5. Liabilities of Karta
Ans. Following are the liabilities of kart a
1. Liability to maintain: The Karta of the Hindu Joint Family is liable to maintain
all the members of the joint family. All the members of the Joint Hindu Family
have a right to maintenance and residence. If the Karta is unable to maintain them
he can be sued for the same and the member can claim their arrears of
maintenance.
2. Liability to spend reasonably: The Karta also has the power to spend funds from
the joint family account. But such power is limited to some restrictions such as the
•
know
Karta cannot use the funds for unlawful purposes and also he should spend it
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FAMILY ~L----'-'-
~
wisely. If any of the coparccncrs is not satisfied with the spending made by~, • Lepros~IJ
Karta he/she can file a suit against the Karta and discover the truth. -» of lepro:--"
3. Liability not to alienate property: The Karta is allowed to alienate the J • Venere:r'd
Hindu Family Property only in certain cases such as legal necessity, the bene commu\.,;a
the estate, in case of indispcnsahle duties. If he wrongfully alienates the • Renounced
then the coparceners have a right to challenge the alienation. any reli~l
4. Liability not to start a new business: The Karta of the family is under • Has not be
obligation not to start a new business without the prior consent/permission not kno~
coparceners of the Joint Hindu Family. Once the coparceners expressly
impliedly have given their consent. the Karta can start a new business.
5. Liability to render accounts: Until the family remains joint the Karta has
~
obligation to maintain the accounts. But as soon as the partition takes place
Karta is under an obligation to render the accounts of Joint Family Property. .Husba~l
Conclusion: The concept of Karta in a Joint Hindu family is not only a commence I
position in a family rather it serves an important practical purpose. He is not a t .remarrl~t
partner or an agent of the family but is the head of the family who runs it in the the other w
possible way. Rape, ~
bestiality. t
6. judicial separation. 'Marria~
Ans. Either party to the marriage, whether solemnized before or after comm solemnized
re~(
of the Hindu Marriage Act, 1955 can under. Section 10 of the Act tile a petit
judicial separation. After a decree is passed in favour of the parties, they aintec
case oT:
bound to cohabit with each other. Some matrimonial rights and obligation,
alIo,\)
continue to subsist. They cannot remarry during the period of separation. They
liberty to live separately from each other. Rights and obligations remain s
during the period of separation. The grounds for judicial separation are same
divorce.
Under Section 13(1), judicial separation may be sought on the
grounds:
by • Leprosy: If the other party has been suffering from a virulent and incurable form
• of leprosy.
ienate the • Venereal disease: If the other party has been suffering from venereal disease in a
-
y'~e n ...n",~••e communicable form.
:e~the • Renounced the world: If the other spouse has renounced the world by entering
• any religious order .
y~ LInder • Has not been heard alive for seven years: If the other party's whereabouts are
tiPcrmission not known for seven years.
sexpressly
ss. addition to these grounds some of the grounds are exclusively ,reserved for
~.rta has en:
takes place
• Husband has more than one wife living: If the husband had married before the
>_erty.
commencement of the Act and after the commencement of the Act has again
~Iy a
remarried either of the wives can present a suit for judicial separation provided
IS"III'ot a
the other wife is alive at the time of presentation of the petition.
• Rape, Sodomy or Bestiality: If a man is guilty of offense like rape, sodomy or
•
bestiality, the wife can present a petition for judicial separation.
• Marriage before the age of fifteen years: If the marriage of women was
solemnized before attaining 15 years of age. on her attainment of 15 years she
could repudiate it but before attaining the age of 18 years.
n maintenance be claimed by wife during the period of judicial separation?
the case of SohanLal vs. Kamlesh it was held that in case of judicial separation, a
is allowed to claim maintenance from husband in case she is not able to maintain
If.
to do in case after judicial separation where the parties want to resume
·cohabitation?
Since a decree for judicial separation is a judgment in rem, if the parties want to
resume cohabitation, it is necessary for them to get the order of judicial separation
annulled by the court. Normally, the court rescinds (cancels) the decree on
presentation of the petition by consent of both the parties.
h~ny What is the purpose of a judicial separation? .
•
.ats the
·judicial Separation is a step prior to a divorce. The purpose of judicial separation is to
provide an opportunity to the parties to reconcile their difference.
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FAMILY LAW
• coparceners.
• Right to ask for accounts: A coparcener may demand an account of the
•
Ion can
management of joint property so that he may know the actual state of family
funds when the coparcener is suing for partition, .If such demand is met by
refusal, he is entitled to restrain the other coparceners for excluding him from
management thereof
• Right to enforce partition: Every adult coparcener is entitled to enforce a partition
of a coparcenary property. He cannot, however, file a suit for a declaration of the
amount of his share, as he has no definite share, until partition.
r.if • Right to account: A coparcener has no right to ask for accounts from the manager
decree as regards his dealing with the coparcenary property and the income thereof,
• unless of course, such coparcener is suing for a partition, in which case, he would
•
have such a right.
• Right of alienation: No coparcener can dispose of his undivided interest in
coparcenary property by gift. Nor can he alienate such interest for value, except
in the State of Tamil Nadu, Madhya Pradesh, Maharashtra and Gujarat. An
unauthorised alienation is not however, absolutely void; it is merely voidable at
the option of the other coparceners.
• Right to impeach unauthorised alienations: Every coparcener has the right to
impeach alienation by the manager, or any other coparcener, in excess of their
powers.
• Right to renounce: A coparcener has the right to renounce his interest in the
coparcenary property. He can do so by expressing his intention to that effect, and
ifhe does so, no other formalities would be necessary. Such a renunciation must,
however, be in favour of the whole body of coparceners. Even if he renounces in
JB SERIES
11
favour of one individual member, the renunciation will operate for the
all the coparceners.
• Right of survivorship: All the coparceners of a joint Hindu family have a
of survivorship in respect of the joint family property. Thus, if one c·'-1e
\.;'
dies. his undivided intere~t in .such family passes by survivorship to the al an
coparceners, and not to his heirs by succession. ~I
a de:
• Right to make self-acquisition: A coparcener has the right to acquire b~j
. his own, and keep it as his self-acquired property. The other coparceners en C
have no claim on such property. cJ\.t
9. Divorce
The Supreme Court has observed that the word Hindu is derived from the word
, otherwise known as Indus river. Thus, the term Hindu had originally a
.~~._'t,"\rl':lland not a creedal significance. It implied residence in a well defined
ical area. Today, the term 'Hindu' has lost its territorial significance. It is
not a designation of nationality.
n ......
ndu by Birth: Following persons are deemed to be Hindus by birth:
".".--
i) When both the parents are Hindus: Children born of Hindu parents are Hindus.
Such a child may be legitimate o~ illegitimate. It is also immaterial that such a
•
e fami
).fief
child does or does not profess, practice or has faith in the religion of its parents.
When one Parent is Hindu: When one of the parents of a child is Hindu and he
is brought up as a member of Hindu family, he is a Hindu. It is clear by the
1.1 he
explanation (b) of Section 2( 1) of Hindu Marriage Act, 1955 that child's religion
is not necessarily that of the father.
•
For instance a child is born of Hindu mother and Muslim father. The child is brought
up as a Hindu. Subsequently, mother converts to Islam. Nonetheless the child is
. In Ram Prasad v. DahinBibi, is a good example on the point.
Hindu by Religion :Converts and Reconverts to Hinduism: Under the codified
Hindu law any person converted to Hinduism, Jainism, Buddhism or Sikhism is a
Hindu. The Supreme Court in Perumal y. Poonuswami, observed that a person may
be a Hindu by birth or by conversion. No formal ceremony of purification or
expiation is necessary to effectuate conversion. But at the same time a mere
_Inct_ theoretical allegiance to the Hindu faith by a person born in another faith does not
convert him to a Hindu, nor is a bare declaration that he is a Hindu sufficient to
convert him to Hinduism. But, a bona fide intention to be converted to the Hindu
faith accompanied by conduct unequivocally expressing that intention may be a
sufficient evidence of conversion.
Any person who is a Hindu by religion or born in Hindu family with Hindu
father or mother in any of its forms such as Virashaiva, a Lingayat or a follower of
the Brahmo, Prarthana or AryaSamaj or any person who is a Buddhist, Jain, or Sikh
is also a Hindu by religion. Thus, any person except a follower of Muslim, Christan,
Parsi, or Jew religion is a Hindu .
. 11. Adultery .
. ADS. Hindu law books are very severe against adultery, not only for moral reasons
but also for social reasons. They consider that it would lead to confusion of castes,
degradation of family values and social disorder. In olden days women from upper
castes were barred from moving in society freely.
Adultery is no longer a crime, the Supreme Court ruled today. The judgment
by a five-judge Supreme Court bench headed by Chief Justice DipakMisra has
Overturnedthe previous three rulings on the matter.
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Under Section 497 of the Indian Penal Code (IPC) Adultery was an 0
and a convict could be sentenced to five-year-jail term. Section defined adultery as
offence committed by a man against a married man if the former engaged in
intercourse with the latter's wife.
The law had come under sharp criticism for treating women as possession 12.Pious o'Mi
men. An Italy-based Indian businessman Joseph Shine. who hails from Kerala, fi
ADs.The c~
Public Interest Litigation (PIL) last year challenging JPC Section 497. He con non-r-a:
that the law is discriminatory.
. Hen~'
HIGHLIGHTS I What Supreme Court said while striking down Section 497 immoral a~i
Section 497 reads: "Whoever has sexual intercourse with a person who is must be
whom he knows to be the wife of another man, without the consent of that man, ""_',naT a man\..,J
sexual intercourse not amounting to the offence of rape. is guilty of the offence :bepaid before
adultery." ThM
Section 497 used to be read with CrPC Section 198(2) in the matters the grandfarhe
prosecution lor offences against marriage. The combined reading of the adultery grandson n~(
allowed the aggrieved husband of the married woman in adulterous relationship father) for ~-~i
file a complaint. But same right was not available to an aggrieved wife ifher or wrath, one
was found to be in an adulterous relationship. father.
\..t
FIRST SUPREME COURT JUDGMENT Yajyav
The adultery law first came under challenge in 195] in the Yusuf Aziz spirituous '-'1
\.U11JU1U of a to
State of Bombay case. Petitioner contended that the adultery law violated
fundamental right of equality guaranteed under Articles 14 and 15 of the dea'-" I
Constitution.
The dominant argument in the court hearing was that Section 497, go
adultery law, discriminated against men by not making women equally culpable
adulterous relationship. It was also argued that adultery law gave a license to
to commit the crime.
The next important judgment regarding adultery law under Section 497
in Sowmithri Vishnu versus Union ofIndia.
In Sowmithri Vishnu case, the Supreme Court held that women need not be .
as an aggrieved party in the name of making the law even handed. It also ..,""L,.......-
to why women should not be involved in prosecution in the cases of adultery.
The Supreme Court held that men were not allowed to prosecute their
for the offence of adultery in order to protect the sanctity of marriage. For the
reason, women could not be allowed to prosecute their husbands. The j
retained the offence of adultery as a crime committed by a man against another
The Supreme Court also rejected the argument that unmarried women
be brought under the purview of the adultery law.
The argument was that if an unmarried man establishes adulterous relationship
married woman, he is liable for punishment, but if an unmarried woman engages
sexual intercourse with a married man, she would not be held culpable for the
of adultery, even though both disturb the sanctity of marriage.
•
•
• FAMILY FAMILY LAW
•
is an
l.tery
The Supreme Court held that bringing such an unmarried woman in the ambit
adultery law under Section 497 would mean a crusade by a woman against another
~ed in <;!"'''''WV1''~' The ambiguity related to adultery law remained unresolved.
•
wession
~~la, The concept of pious ohligation has its origin in Dharmashastras. according to
I_onte non-payment or debt is a sin which results in unbearable sufferings in the next
Hence the dehts must he paid off in all circumstances provided it was not for
ie 497 .WIIU1\J1LU and illegal purposes. Vrihaspati has said, "If the father is no longer alive the
1 who is
must be paid by his sons. The father's debt must be paid first of aIL and after
.an, a man's own debts, but a debt contracted by the paternal grandfather must always
•
e offence
~atters
paid before these two events.
The father's debts on being proved, must be paid by the sons as if their own,
grandfather's debt must be paid by his son's son without interest but the son of a
ery grandson need not pay it at all. Sons shall not be made to pay (a debt incurred by their
_nsh .father) for spirituous liquor, for idle gift, for promises made under intluence of love
her uu'-'u.- or wrath, or for surety ship, nor the balance of a fine or toll liquidated in part by their
• father.
Yajyavalkya says, "A son has not to pay in this world father's debt incurred for
A!z spirituous liquor, for gratification of lust or gambling, nor a fine, nor what remains
·i.ted unpaid of a toll; nor idle gifts." But in case of debts for purposes other than the above,
15 of on the death of the father, or on his going abroad, or suffering from some incurable
• disease, the debt contracted by him would be payable by his sons and grandson
The Mitakshara has presented the entire proposition in stronger words.
According to it when the father has gone abroad or is suffering from some incurable
"""...-; disease, the liability to pay the debt contracted by him would lie on the sons and
grandsons irrespective of the fact that the father had no property. There are reasons
for fixing this liability on sons and grandsons. The liability to pay the debt is in the
order, viz., in absence of father the son and in absence of son the grandson.
It is worth noting that the doctrine of pious obligation does not extend the liability to
Jemales notwithstanding she has been given a share in the joint family property on
partition. Where the wife gets a share on partition between husband, sons and herself,
still she would not be under any obligations to pay the debt of the ancestor (father).
Ans. In 2006, the Hon'ble Supreme Court ofIndia made it mandatory to register all
marriages. In India to get married the eligible age for males is 21 years and 18 years
for females, the process of registering the marriage is applicable only for the
mentioned age for both men and women.
JB SERIES
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15
marriage, an important document on which one can rely to prove that the parties • With t1'ferc
legally married to each other. The marriage certificate could be used for • For reli'''~c
purposes also like obtaining a passport, applying for an income certificate, chan )0> She ab~h
one's middle name, etc.
the es\.;
Registration under the Hindu Marriage Act, 1955 binding UJ
The act is applicable in situations wherein both husband and wife are \....
Buddhists, Jains. or Sikhs or they both have converted their religion into any of );;>
She could
religions. There are certain conditions that are required to be fulfilled as per but if~l
Hindu Marriage Act, 1955 after which the marriage between the parties will reversione
considered legal and valid. Sec.S and Sec. 7 of the Act specifics these conditions. );;>
She ha\,.;t
• Section 5 of the act states that both the parties must be Hindus then only properties
marriage will be considered as a valid marriage. as a r~(
• Section 7 of the act that Hindu marriage would be solemnized by following properr I
Customary rites and ceremonies of either of the parties. );;>There~i
If the marriage is not registered then both the parties cannot (1\ ail nor de\.".;l
accessing the legal rights which are associated with the marriage. );;>
She could
);;>
She ccvJ
14.Woman's Estate. );;>
She could
She wss-r
Ans. After the enactment of Section 14 under Hindu Succession Act, Her right
the women's estate has come to an end. Now all the properties acquired prior She C~I
after the passage of the Act have changC~
Under the old Hindu law woman's estates were of two types-
otion()
1. Stridhan, of which she was the absolute owner;
2. And women's estate over which she had limited ownership. Before t
Sources of Property: a~.
There were two sources of acquisition of property-
) She was owner of the properties inherited by her from her husband, but
under the following conditions, she could neither sell the property nor c
mortgage it nor could she alienate it-
• She could alienate her life interest in the estate through mortgage. sale or gift.
She could spend the whole income; she was not bound to share the income.
_•t,
She could claim partition from the collaterals.
was not under the control of her relatives.
right over the estate came to an end upon remarriage or on adoption a child.
prior
• could not transform the woman's estate into some other form so as to
,..··~Jul::."its nature either by some declaration or by some act.
•
• the amendment in the Hindu Succession Act, 1956, female heirs were
• only male heirs were regarded as coparceners but female heirs (including
and Wife) were not.
Was given to females in this 1956Act. Even the wife was also not given
in the coparcenary property as she was not considered as a direct
the deceased person. .
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FAMILY
1. All the heirs will have equal rights irrespective of gender and
considered coparceners by birth.
2. The daughter of a deceased person has the same entitlement on coparce •
property as the right of a son. other~l
3. There is no difference when it comes to the liabilities, just as rights arc equal, • There w
also, the liabilities. invit\.;)
4. Similarly, female's three-generation such as daughters, granddaughters, • If the ot
great-granddaughters arc also entitled as in the case of male heirs. from'-'e
5.. Debt repayment does not transfer to the descendants and it ends when . the Invit
debtor dies. Adv~ntage~'
6. Thes~ ~me~dme~ts ~re only applic~ble ~o a Hindu whose property interest' 1. Evirop
to a jomt Hmdu family and who dies either testamentary or intestate after Con~
commencement of the Amendment Act. 2. SitU,
7. The female heirs who are eligible to inherit are classified as follows: 3. There
a. The daughter(s). 4. Th\.;ll
b. The daughter's-daughter's sorus), 5. The co
c. The daughter's-daughter's daughter(s), Disadvant¥
d. The daughter's son's daughter(s), and 1. Concil
e. The son's daughter's sorus) (the predeceased great-granddaughter which upo~l
only applicable if the male heir or the grand is predeceased) 2. Thel:
3. The,.,r
16. Conciliation.
Ans: Part III of the Arbitration and Conciliation Act, 1996 deals with conci 17. Factuf\_;:
is a voluntary proceeding where parties in dispute agree to resolve their It is a La
through conciliation. It literally \.;'
It is a flexible process which allows the parties to decide the time and ,
for conciliation, structure, content and terms of negotiations. In Conciliation,
conciliators are trained and qualified neutral person who help the conflicting
to make them understand the issues in dispute and their interest to reach
accepted agreements. The conciliation process includes the discussion between
parties which is made with the participation of the conciliator.
It covers many disputes like industrial disputes, marriage disputes, family
etc.
Conciliator :Section 64 deals with the appointment of conciliator. There is no
~
of agreement like arbitration agreement. The acceptance of settlement is of the
both of the parties.
~
Generally, there is one conciliator for the settlement but there can be more than '''VU''-l h
conciliator, if the parties have requested for the same. If there is more than o'-c
conciliator then they will act jointly in the matter. which states that if there is Nowm
than one conciliator then the third conciliator will act as the Presiding Concili ap~
Kinds of Conciliation
1. Voluntary Conciliation- ~
•r
•
,!,ILY
I
FAMILY LAW
••
ley will 2. Compulsory Conciliation-
•°i rc
rocedure of Conciliation: Section 62 discuss the initiative of conciliation will start
• When one party will send Written invitation to conciliate upon the matter to the
other party.
• There will be the commencement of procedure if the other party accepts the
'~qual,
invitation in writing to conciliate.
~_rs, • If the other party rejects the invitation or interested party does not get a reply
from the other party within Thirty days then it will be treated as a Rejection or
_en the Invitation.
Advantages of conciliation
.est 1. Evidences or any other information which are used during the process are
Confidential.
••
e after
2. Simple procedures which can be easily followed by the general people.
3. There is no chance for delay.
4. The parties can choose conciliator.
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19
Effect of Hindu Adoptions and Maintenance Act on the Doctrine • Who i~(·
Valet:
• Ifman~.JI
The doctrine of Factum Valet is sometimes involved in the law of adopt" • WhOSehl
Sri Balusu v. Sri Balusu, 22 Mad. (PC) 398, the question arose whether an only • Has c~I
could be given in adoption. The Mitakshara forbids the giving of an only son • Has cease
adoption. • Has be\rt
Nayeko Putra Deyaha (An only son should not be given in adoption). has the "a
~
Na Jyeshta Putra Deyaha (The eldest son should not be given in adoption}.ln
case an only son was given in adoption. It was urged that though there is a
Law text forbidding such an adoption, the infirmity was cured by the applic
the doctrine of Factum Valet. The Latin Maxim means that what ought nothe d
valet when done. If the text in question is only recommendatory, then this
may be applied and the adoption can be upheld. It was held that the text was
directory and so the adoption of an only son was held to be valid notwithstandi
prohibitory text of the Mitakshara.
Ans.Historically, and also ironically, women under Hindu Law were not enti
any share in the immovable or movable property either as a daughter or as a w ••. In that._;
their ancestors. However, in some capacities women were given the Right to this restrrc
property,but the same were only a limited right of enjoyment to the Property. , or a fU
India became Independent, some amendments were made in Hindu law restriction
property ...
Special provision respecting dwelling houses
Where a Hindu intestate has left surviving him or her both male and
heirs specified in class I of the Schedule and his or her property includes a \..,
house wholly occupied by members of his or her family, then, notwi
anything contained in this Act, the right of any such female heir to claim \.j
the dwelling-house shall not arise until the male heirs choose to divide
respective shares therein; but the female heir shall be entitled to a right of
l;
therein:
'-'
Provided that where such female heir is a daughter, she shall be \.,
right of residence in the dwelling-house only if she is unmarried or has been
by or has separated from her husband or is a widow.
••FAMILY
•
e of Fa
• If married, whose marriage has been dissolved or
• Whose husband is dead or
f_option.
r an only • Has completely and finally renounced the world or
ely son • Has ceased to be a Hindu or
• Has been declared by a court of competent jurisdiction to be of unsound mind,
A
•
ption}.ln
a Hi
has the capacity to take a son or daughter in adoption.
Whether child adopted by Widow under Hindu Adoption and maintenance Act
would be deemed to be child of her Husband
p~cation
o~ done, The provision in section. 12 of the Act, makes it clear that, on adoption by a
.. s Hindu female who has been married, the adopted son will, in effect, be the adopted
:x""was . son of her husband also. Under the Shastric Law if a child was adopted by a widow,
seding he was treated as a natural-born child and, consequently, he could divest other
•
members of the family of rights vested in them prior to his adoption. It was only with
the limited object of avoiding any such consequence on the adoption of a child by a
Hindu widow that the provisions in clause (c) of the proviso to section. 12, and
section 13 of the Act were incorporated.
I.\vife, In that respect, the rights of the adopted child were restricted. It is to be noted
ht to i that this restriction was placed on the rights of a child adopted by either- a male
p'_'. Hindu or a female Hindu and not merely in a case of adoption by a female Hindu.
This restriction on the rights of the adopted child cannot, therefore, lead to any
inference that a child adopted by a widow will not be deemed to be the adopted son
_•.
•
•
•JB JB SERIES
21
the srnritis. These schools have widened the scope of Hindu law and expl of the mos
contributed to its development.
leading '-'1
The two major schools of Hindu law arc as rollmvs- ..._ ....ilv.
-" Accord
• M itakshara
• DayaBhaga
Mitakshara
hed nri
Rrc"'UUJL1'",
Mitakshara School: Mitakshara is one of the most important schools of Hindu cted b~
It is a running commentary of the Smriti written by Yajnvalkya. This sc Dayabhcc~
applicable in the whole part of India except in West Bengal and Assam.
Mitakshara has a very wide jurisdiction. However different parts of the .5../
practice law differently because of the different customary rules followed by them. • Day
Mitakshara is further divided into five sub-schools namely .\.1
• Benaras Hindu law school
• Datt
• Mithila law school .Restitutioi
'-
• Maharashtra law school \.oJ
• Punjab law school Section
• Dravida or Madras law school A~
These law schools come under the ambit of Mitakshara law school. They
the same fundamental principle but differ in certain circumstances.
Benaras law school
This law school comes under the authority of the Mitakshara law sc
covers Northern India including Orissa. ViramitrodayaNirnyasindhuvivada are
of its major commentaries.
Mithila law school
. This law school exercises its authority in the territorial parts of
north Bihar. The principles of the law school prevail in the north.
commentaries of this school are Vivadaratnakar, Vivadachintamani, Smritsara.
Maharashtra or Bombay law school: The main authorities of these s
VyavharaMayukha, Virmitrodaya, etc. and has the authority to exercise its j
over the territorial parts including Gujarat Karana.
Madras law school: The main authorities of this school are Smriti grouq-l~
Vaijayanti, etc.and it tends to cover the whole southern part ofIndia. • Crue'rf
• On r '
'-'
Nonp
'-'
",.
'It
FAMILY
FAMILY LAW
•
_esti
-...
"'.~~
b law school: The main commentaries of this school are viramitrodaya and it
.ished customs and established its own customs and traditions.
.• lj.al'.:lUlllagasc
hool:
gaschool predominantly prevailed in Assam and West Bengal. This is also
of the most important schools of Hindu laws. It is considered to be a digest for
n,d.,.expll"d.,oTlt:':
• leading smritis. Its primary focus was to deal with partition, inheritance and joint
•
Oayabhagaschool was formulated with a view to eradicating all the. other
and artificial principles of inheritance. The immediate benefit of this I}ew
is that it tends to remove all the shortcomings and limitations of the previously
ished principles and inclusion of many cognates in the list of heirs, which was
cted by the Mitakshara school.
agaschool various other commentaries were j()llo\\cd such as:
• Dayatatya
• Dayakram-sangrah
• Virmitrodaya
• • Dattakachandrika
•• on of conjugal rights.
• by petition to the district court, for restitution of conjugal rights and the court,
satisfied of the truth of the statements made in such petition and that there is
ground why the application should not be granted, may decree restitution of
rights accordingly.
of section 9
----- ...~ and wife should be legally married.
and wife must not be living together.
ground for withdrawing from other's society must be unreasonable.
party must'have filed for the restitution of conjugal rights.
mention has been observed in various cases, including SushilaBai v.
wherein the husband left his wife to her parents home and asked to
When called for, over which the wife had filed a case under Section 9 and
had granted the decree after observing that there existed no reasonable cause
from his society.
on which a court may refuse the grant of conjugal rights includes:
by husband or in-laws.
failure of performance of marital obligations by husband.
payment of the dower by the husband.
JB SERIES
23
23. Polygamy.
ADs. Polygamy is the practice of having more than one spouse at the same time.
• Polygamy is when a man is married to multiple wives at a time. and polyandry refers
to when a woman is married to multiple husbands. If a marriage has multiple
husbands and wives. it can be referred to as a group marriage.
• . In Indonesia, polygamy is legal in some areas, such as in Bali, Papua, and West
JB SERIES
r
I
\w
25
FAMILY 26 '-'
24. Explain how intestate succession of the property of Hindu male devolves. 4. As S~f)
the esr=t.
Ans. Intestate Succession : In situations wherein a person dies leaving behind. 5. If fat~
property but without leaving a will or a testament or any instruction concerning estate...':
distribution then in accordance with the law in force. the said property will 6. Class!
distributed to its legal heirs by the rules of inheritance. This kind of devol (reIat\.;
wherein the property is devolved and distributed hy the rules of inheritance is c 7. In case
intestate succession. agnat\.;1
8. If there
Succession of a property of a Male Intestate Gove~
relatio=
All the heirs either related by blood, marriage or adoption are divided into For fe~
classes or categories this categorization is primarily based on propinquity in daughters,C'
relationship of the heir with the deceased, though other factors like natural love estate shalf'd
affection are also taken into consideration. Further, the rule of agnate over <'''l1r"o_, also, it wiI\.J'
has been retained from the earlier regime. One special
Rules for devolution of property of a Male Intestate father or ~
case she does
On the death of an intestate, the property shall first devolve to class I heirs, '-'
long as a single class I heir is present, the property will not go to heirs in class
category. In the absence of a class II heir category, the property shall devolve 25. Who it;
heirs in class III or agnates which primarily comprises the leftover heir who are Ans. A t'1+:
relatives of the intestate related to him through a whole male chain of relatives. guardians M
case there is no heir present in class III, the interest in the property shall devolve appoint g~
any other blood relative of the intestate. Hindu Minot
1. Male Hindus: There are four classes of Legal heirs. The property will and their 1\.1
exclusively to legal heirs specified in Class 1 if there is anyone available. C Und
relatives include wife, son/daughter, mother, son/daughter of predeceased :1'lunCIlone\..t
daughter, widow of the predeceased son and few other such relatives. The the f
would be distributed in equal share to widow, mother and each of children. In ~
any of the child has predeceased, his spouse and children will collectively get
her share.
Example: A has died. He has left behind B, his wife, C, his mother and D, elder
F, youngest son and G, his daughter. E, his middle son had died few years earlier
he left behind his wife E-l, and two children E-2 and E 3. His property
divided in 6 parts, Each legal heir would get one part
ore
1. Wife and children of deceased E would collectively get one part. Tl
2. The legal heirs specified in Class II will get the estate of the deceased aft~
there is no relative in Class 1. of a
3. Relatives in Class II have been put in sequence and it is provided iA...
relative named first in list would get full, in preference to the next. gUt
person will get in Full, only if first named relative is not there and so on.
schedule, Father is named first and brother/sister as second and so on.
•r I
I
•
~
•,
I
::
m~
• FAMILY LAW
4. As such, ifthere is no relative in class 1 and father is there, then he will inherit
•
olves.
the estate fully.
5. If father is not there. then brothers and sisters of the deceased shall inherit the
,k?ind estate fully.
:~mg 6. Class III and IV are Agnates (relations only through male) and Cognates
~.
:Will
j~ol
(relations not wholly through males).
7. In case there are no heirs even in class II, then succession would devolve upon
agnates of such deceased. failing which by cognates.
•
1_0
8. If there are no Agnates and Cognates also, the estate will devolve upon the
Government. Among the Agnates and so also in cognates. the one closer in
relation is preferred. '
For female Hindu, class 1 relatives are somewhat similar ie Husband. sons and
daughters, including children of predeceased son/daughter. If none 0 I'them are there,
estate shall devolve upon the heirs of the husband. If there are no heirs of husband
also, it will devolve upon the mother and father of the deceased. if alive.
•
One special provision is there for property inherited by the female Hindu from her
. father or mother. Such property would revert back to the legal heirs of her father, in
.case she does not leave behind any son or daughter.
But if the mother does not appoint any guardian, the appointment of the
guardian under "father's will" will come into operation. Such a testamentary guardian
becomes functional only after the death of natural guardians, as a will comes into
effect only on the death of its executor. Section 9 of the Act runs as follows:
JB SERIES
r
•
27
deal with property belonging to the minor is also subject to the restrictions i
by the will.
Since the powers of the testamentary guardian are similar as that of IlU,IiI.,....",,.,-. custo
guardian, it is relevant to know that Section 8 of the Hindu Minority al customs
Guardianship Act. 1956 deals with the powers of the natural guardian. not highV'
laysdown that the natural guardian has every power to do any act subject to neral custr
provisions of the law if necessary or found to be beneficial to the estate of the eral c~
type of C'
However. it should be noted that a natural guardian has no power to ventiot.rl
make a gift or exchange any property of the minor without the permission
Court. In the same way natural guardian can't lease the property of the min
more than five years or more than one year beyond the date on which the es~enCI:
attains majority. lowing are
• A cl\.i
Removal of a Testamentary Guardian: • A custo
Section 39 of the Guardian and Wards Act lays down certain • A c\.lc
which a testamentary guardian could be removed. It may be noted here that the • There n
section has not been abrogated by the present Act of 1956 hence it stands a go • It sh'-'I
even today. Thus a testamentary guardian could be removed on the following • A custc
as mentioned in Section 39 in the Guardian and Wards Act:- gen~
....... ~-lt
• Abuse of his trust.
• Continuous failure to perform the duties.
• Incapacity to perform the duty.
• Ill-treatment or neglect to take proper care of his ward.
• Continuous disregard to any of the provisions of the Act.
• Conviction in case of an offence relating to lapses in the character.
• Keeping an adverse interest.
• Ceasing to reside within the local limits of the jurisdiction of the court,
• Insolvency or bankrupcy.
Ans. Customs is the tradition that has been practiced in society since ancient
is the type of practice which is under the continuous observation of the
been followed by the people.
Further, the customs have been classified into the following categories:
~ Legal customs
~ Local customs
~ General customs
~ Conventional customs
•
• FAMILY LAW
II'
,1,1
customs
customs are those customs which are enforceable or sanctioned by law. There
are two types oflegal customs. They are
Local customs
Local customs are the customs that are practiced in a local area. This type of custom
nority
.cti is not highly recognized.
General customs
iliil to General customs are the customs or traditions which are practiced III a large area.
h~ni
This type of custom is highly recognized by people.
Conventional customs
Conventional customs are CllStOI11Sthat are related to the Incorporation or an
agreement and it is conditional.
The essentials of a custom:
Following are the essentials of a custom
• A customs must be continuous in practice
• A custom should not be \ ague or ambiguous
• A custom must have time antiquity
• There must be a complete observation of the custom
.tlod • It should be certain and clear
• A custom must not oppose the public policy which will affect the interest of the
W O general public.
•
Laxmi v. bhagwantbuva AIR 2013 SC 1204:
In the instant case, the supreme court stated that a custom becomes legally
• enforceable when the majority of people make the continuous use of such practice.
Onus
••
, and
Generally when a custom attains the judicial recognition no further proof is required,
however in certain cases where the customary practices do not attain the judicial
recognition, the burden of proving lies on the person who alleges its existence.
Munnalal v. Raj Kumar AIR 1972 SC 1493
In the instant case the supreme court stated that a custom brought before a court
several times, the court might hold that such custom has been enforced by the law
with the necessity of its proof.
• purpose of removing any crime or transgression from society but it was established so
that the people will follow it in order to attain salvation.
JB SERIES
r•
29
FAMILY
• Local customs
• Local customs are the customs that are practiced in a local area. This type of custom
is not highly recognized.
•,,4l an
General customs
General customs are the customs or traditions which are practiced in a large area.
This type of custom is highly recognized by people.
•• Conventional customs
Conventional customs are custOI11Sthat are related to the incorporation of an
agreement
'-'
and it is conditional.
Modern sources
Judicial Decisions (Precedents): Judicial decisions are considered to be the most
important ingredient of modern sources. .Judicial decision is considered to be
authoritative and binding. The doctrine of precedent was established and it was
djl ~nd applied in the cases resembling the same facts and circumstances of a case already
,,",,11m decided.
~be The legislation is considered to be the codification of customs which plays an
essential role in expanding the concept of Hindu law. Legislations are enacted by the
parliament.
Justice equity and good conscience
Justice equity and good conscience is the basic rule of law. This rule of law applies
when an existing law doesn't apply in a case before the court decides the particular
matter by applying its rationality and the concept of justice equity and good
conscience.
This rule is considered to be the fairest and reasonable option available to a
person. In Gurunath v Kamlabai the Supreme Court held that in the absence of any
existing law the rule of justice equity and good conscience was applied.
Legislation
The legislation is considered to be the most important source of Hindu law. It 'I
is considered as a base for the growth of Hindu law in the modern world. It has been I
stated that in order to meet the new conditions of the society it became a necessity to :1
• 28. What are the grounds for divorce under Hindu Marriage Act 1955? State
• divorce. The court considers these criteria as the very basis on which a divorce can be
filed.
i!j
~i
:1
"
JB SERIES
31
I. Bigamy: If the husband has re-married while his first marriage has not 11. Convdiwi
dissolved, the wife from the first marriage can file for divorce on grounds another r
bigamy. This grounds applies to all women, except Muslim women, as lim' spouse\.,.t:
polygamy is allowed in Muslim law. Along with being a ground for di affecterl s
bigamy is also a criminal offence under Indian Penal Code. 12. Rape,'s'(
2. Adultery: Adultery is defined as the act of living with and having inti unnat1\.,)
relations with a person who is not the legally wedded spouse. Even a single on grouru
of adultery is sufficient for the a Ilcctcd spouse to file a decree for divorce. 13. Repu~l
3. Impotency: This Ground for Divorce varies from state to state, Especially fifteen\.)
evidence required. Your own testimony will not be enough proof to becomes,
impotence as a Ground for Divorce. You will need to acquire medical exercl\._,
and to hire an expert to testify about this reason. Some states will not grant 14. Leprosy:
Ground, unless you can prove that the situation is permanent. or vir~
4. Infertility: This Ground for Divorce is questionable in many states. It is this grout
longer a suitable reason for a marriage to end. However, undisclosed inf 15. Vener\.tl
can be grounds for the annulment of marriage. when (lllt
5. Adultery: Adultery is defined as the act of living with and having inti etc. T~
relations with a person who is not the legally wedded spouse. Even a si awareC
of adultery is sufficient for the affected spouse to file a decree for di
However, this category does not apply for Muslim women as limited poly
6. Cruelty: If either the husband or wife subject each other to any form of
it becomes a ground for divorce. The spouse that has been treated cruelly
file for divorce. Cruelty as a category for divorce includes both mental
physical and emotional.
7. Unsoundness of Mind: If either of the spouse has exhibited
mind after marriage then such unsoundness can be a ground
However, if such unsoundness of mind was brought to the notice of the
before marriage then it cannot be a ground for divorce.
8. Presumed Death: If either the husband or wife has been missing for a
seven years or above, they are presumed to be dead in the eyes of law.
surviving spouse brings this to the notice of the local family or district
becomes a valid ground for divorce.
9. Criminal History: In most states, if a spouse has been convicted or c
with a crime, it is suitable Grounds for Divorce. Some states require am'
prison sentence of 12 months or more.
10. Desertion: If either the husband or wife has deserted the other for a period
least two years and above,. The desertion could be physical deserti
emotional desertion where the spouse continues to stay in the same
neglects the other spouse. Desertion is a ground for divorce.
•
•
•
FAMilY
FAMilY LAW
• II. Conversion & Renunciation of World: In case one of the spouse converts to
another religion, the affected party can f Ie for divorce. Furthermore, if the
spouse renounces the world for religious, spiritual or any other reason, the
affected spouse has the right to tile for divorce.
12. Rape, Sodomy, Bestiality: If the husband subjects the wife to any form of
unnatural or non-consensual sexual intercourse then the wife can file for divorce
on grounds of rape, sodomy and bestiality.
rcc. 13. Repudiation of marriage: In cases of child marriage. if the wife is above
fifteen years and under eighteen years of age and was forced to marry, once she
becomes a major she can repudiate the marriage. Courts allow child brides to
exercise this right to protect those who may have been coerced into marriage
14. Leprosy: Leprosy is the ground of divorce is when one spouse has an incurable
or virulent form of leprosy. The petitioner can file divorce in the court under
this ground, if their spouse has such a severe kind of leprosy
15. Venereal or Communicable DiseaseVenereal disease is the ground of divorce
when one spouse is suffering from a serious communicable disease like AIDS
etc. The other spouse can apply for divorce but must prove that they were not
aware of their spouse's disease before their marriage.
29. What are the ceremonies to be performed for the Hindu marriage? Is
registration compulsory? Explain.
Ans. For a long period of time Hindu marriage rites have been changed accordingly
due to the needs and convenience of the people from time to time.
Ceremonies to be performed in a Hindu Marriage:
Marriage in the Hindu religion is a sacred tie performed by certain
ceremonies and rites which are necessary for a valid marriage. There are three
important stages wherein certain ceremonies are to be performed.
• Sagai -Hindu engagement is an important pre-wedding ritual in Indian culture, it
is a type of culture in which the bride and groom come face to face and are
engaged with a religious bond by each other's families. There are various terms
which are used instead of engagement in different places like Mangi, Sagai,
Ashirbad, Nishchayam etc.
• Kanyadan- It is an emotional and sentimental laden ritual which recognizes the
sacrifice a father makes in order to ensure her daughter's happiness. It is followed
till now from the Vedic times. It is an integral part of traditional Hindu marriage.
• Saptapadi- Saptapadi is a very important and integral component of a typical
• reciting certain vows. This movement is also known as phera. Fire or Agni is
JB SERIES
33
considered highly sacred in the Hindu religion, vows taken in front of the T~I
are unbreakable. Mitakshara as
two schooM
30. What are the changes brought by the registration in the law of adopt ConclusioG
Explain. longer basea
upon the \./'
Ans. The Hindu Adoption and Maintenance Act. 1956 has now completely codi tors and
the law of adoption and has materially modi lied it. . The Act extends to whole
India except the state of Jammu and Kashmir. It will apply to all the Hindus li
'-'
1. Write .~n
within the territory in India. Any adoption made in contravention of the provisi Ans. ConsWr
this Act shall be void.
have equal :i.
rights to thl'"r
The Act has brought about remarkable changes in the law which are as oint HinV
under:- (
• The Act will apply only to Hindus inc lude J ains, Sikhs, and Buddhists. All
texts, rules and customs, which were in vougue, immediately before the
came into existence shall cease to have effect with respect to any matter
which provision is made in this Act.
• The Act specially affected the right and capacity of a Hindu female to
child. Married women cannot adopt a child in the life time of her hus
without his consent. After the death of the husband she becomes fully
to adopt a child. She no longer requires the prior consent of her husband to
after the death of her husband.
Hindu female's right to adopt has been considerably enlarged. She can adopt
during her maidenhood or after the death of her husband in case he had
issueless.
• The Act provides for the adoption not only of boys but also of girls
• The Act does not provide for the performance of ceremony of '.lJaLL"~
The only requirements under the Act is to transfer the boy or the girl
and acceptance of the child in adoption by the adoptor.
• . Now after the Act the adopted child cannot divest any person of any
in the adoptive family which has already vested in him. Under the old
adopted son was competent to divest any collateral of any property
vested in him before the act of his adoption, but under the present
adopted child cannot do the same.
Thus the Doctrine of Relation Back has been completely abrogated U"'''''V~'''' ca\.i
which a son adopted by the widow was deemed to have come into her, the
the adoptive family on the day of the death of her husband. • In\..fl
• Now under the present Act a male Hindu cannot adopt a child except moth
consent of his wife whereas no such law existed prior to the Act. Under In\,r,
law the widow could not adopt except the consent of her husband. The
been reverse '-'
•
•
•
FAMILY
FAMILY LAW
•
if the
The present law of adoption has been applied to all the sub-schools of
• have equal rights as that of a man in every sphere. Earlier women did not have any
'.• rights to the property and they were at the mercy of the rna Ie members of the family.
Joint Hindu Family, an unique institution acted as refugee home for women. With the
disappearance of the Joint Hindu Family, the plight of women worsened. Gradually
in course of time. the women have acquired absolute rights over the property as that
of a male. Successive governments have enacted various laws improving/ conferring
property rights to women.
~ter Revolutionary changes: The Hindu Succession Act 1956 brought out revolutionary
changes in property rights of women. Section 14 of the Hindu Succession Act,
IUOI)£. confers absolute right to the female in any property possessed by Hindu female. The
rights are of full nature including unfettered rights of disposal of property.
Rights in family property: Earlier females were not member of co-parceners, hence
were denied succession to the ancestral property.
In certain cases the ancestral house might be the co-parcenary property.
Generally, members of the joint family, mostly male Co-parceners reside in such
houses. In such cases, the female member cannot force a partition of such ancestral
house unless other male members in occupation of the house opt for partition.
But the unmarried daughter, a married daughter deserted or separated from
her husband, or a widow is entitled to a right of residence therein.
Ans. The natural guardian of a minor boy or minor unmarried girl is the father. On
the death of the father, the mother becomes the natural guardian.
The natural guardians of a Hindu, minor, in respect of the minor's person as
well as in respect of the minor's property are-
oling .in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and
wee after her, the father;
• In the case of a boy or an unmarried girl-the father, and after him, the
.th mother:
:r the • In the case of a married girl- the husband
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35 FAMilY 36 __ -~--,,'-
------------------------------------------------------------~.---
Provided that no person shall be entitled to act as the natural guardian of a 33. Defint\.tt:
minor under the provisions of this section - ADS. Under ~
1. Ifhe has ceased to be a Hindu, or the follow~
2. Ifhe has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi) • Thev'-t! (
"
prohit;(
Explanation.--I n this section, the expressions' father' and 'mother' do not include a • ~he r=
step-father and a step-mother. time ~t
Natural guardianship of adopted son - Essential r:
The natural guardianship of an adopted son who is a minor passes, on );-MonogTn
adoption, to the adoptive father and after him to the adoptive mother. Accorv
the time (
Powers of Natural Guardian 4940fV
);;> The natural guardian of a Hindu minor has power. subject to the provisions of Bigamy:
section. to do all acts which are necessary or reasonable and proper for the nprIPta'. illegal '-'
of the minor or for the realization, protection or benefit of the minor's estate; person C~
);;> But the guardian can in no case bind the minor by a personal covenant. marria~
The natural guardian shall not, without the previous permission of the court, Age: Tt
necessary
a) Mortgage or charge, or transfer by sale, gift, exchange or otherwise any part
immovable property of the minor or
this ~«.,.
marriage
b) Lease any part of such property for a term exceeding five years or for a Free cv
extending more than one year beyond the date on which the minor will world, a
majority. will be\J:
Sapinda
);;> Any disposal of immovable property by a natural guardian, in contravention the de~
sub-section (1) or sub-section (2), is voidable at the instance of the minor or tradition.
person claiming under him. Insani\f.
No court shall grant permission to the natural guardian to do any of the acts person,<.::
mentioned in sub-section (2) except in case of necessity or for an evident ma'M.
advantage to the minor. ot~
);;> The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect 7 oj
an application for obtaining the permission of the court under sub-section (2)
respects as if it were an application for obtaining the permission of the court
section 29 of that Act, and in particular-
a) an appeal lie from an order of the court refusing permission to the natural
guardian to do any of the acts mentioned in sub-section (2) of this section to
court to which appeals ordinarily lie from the decisions of that court.
);;> In this section, "Court'? means the city civil court or a district court or a court
empowered under section 4A ofthe Guardians and Wards Act, 1890 (8 ofl
within the local limits of whose jurisdiction the immovable property in
which the application is made is situated.
FAMilY LAW
• They don't fall under the Sapinda relationship, or within the degree of
prohibited relationship unless it is allowed by their custom or tradition .
• The person shall be 110tsuffering from any insanity or mental disorder at the
time of the marriage.
Essential elements of Section 5
~ Monogamy: Any person doesn't have a spouse living at the time or the marriage.
According to the Hindu Marriage Act, It is not permissible to have a living wife at
the time of marriage. which amounts to bigamy. It is punishable under Section
494 of the Indian Penal Code.
~ Bigamy: Bigamy amounts to having two living wives at the same time which is
illegal in Hindu law: \\ ithout finalizing the divorce from the first marriage, a
person can't marry someone else. The first one will be considered a legal
marriage. The provision of section 494 and 495 of the.
~ Age: The groom and bride shall attain the age of21 and 18 respectively. It is
necessary at the time of marriage the person shall attain the specified age given in
this Act. . If the person has not attained the age given in section 5 (iii) the
marriage will be void it has no legal status.
~ Free consent: The consent shall not be given by coercion or threat. In the modern
world, a father can't get the girl married ithout a girl's consent. Such marriage
will be void.
~ Sapinda relationship :They don't fall under the Sapinda relationship, or within
the degree of prohibited relationship unless it is allowed by their custom or
tradition.
)- Insanity: According to Section 5 (ii) (a),(b),(c) Hindu marriage Act 1955; The
person shall be not suffering from any insanity or mental disorder at the time of
the marriage.
Some other essential provisions for a Hindu Marriage
. Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu
marriage, a Hindu marriage may be performed by all the ceremonies and rituals of
both the parties or either anyone. Such as tying of the thali , saptapadi etc.
The marriage renders to be valid if it is performed between Hindu couples according
to the customary ceremony and rituals of each party or anyone of them ..
Registration of Marriage :(Section 8): A marriage certificate helps an individual in
proving they are legally married to someone, especially beneficial for getting a
passport, visa, work permit, etc. if their spouse lives abroad. It is also beneficial in
availing life insurance benefits, family pension, bank deposits, etc.
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37
• There is a possibility of
conciliation.
L------:-:---:--:--:----- ----
....
--.-
Conclusion: Judicial Separation can be the first step to a divorce and the last step in
an attempt to reconcile the parties so it is an option that every couple seeking to
dissolve their marriage should consider.
facto Partition: This is a partition by metes and bounds. This happens when
unity of possession is broken. It is only after the de facto partition, the
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39
r
I
FAMILY
respective shares of the coparceners become their exclusive shares. Here changM
actual division of shares takes place. • The da=z:
When can partition be reopened the rig~
Generally, partition once made is irrevocable, however, the same can be reopened • All thv
case of following circumstances _ 20th Dece
l. Mistake- a suit can be tiled. if any of the joint family properties have been• Omiss,--
out of partition by mistake they can be subjected to partition later. female he
2. Fraud-The partition can be reopened if any of the coparcencrs had done • Omiss~
fraudulent or mala tide act. For example, if any of the property has 110t related t"
made subject to partition fraudulently. view ~:
3. Disqualified Coparcener-Due to some reasons, the disqualified cooarcesmrei t of ,. e
might be underprivileged from his share of the property at the time of a@~l
In such a situation, he could get the partition removed after the disquali amendment~
is removed. 9th September
4. Son in Womb-Ifa son is in the Womb at the time of partition. and no share ~
allotted to him, at the time of partition then later it can be reopened. 37. DiscussC
5. Adopted Son-The adopted son is permitted to re-open the partition in case i _.•.C'1.,.",.The Hiridi
widow of a coparcener adopted a son after the partition. Such adoption under in Indi\Jl
Hindu Adoptions and Maintenance Act 1956 related back to the date of d , follov
deceased husband & such adopted son can reopen partition. \.;
6. Absent Coparcener-Coparcener who is not present at the time of partition
right to reopen the partition if he is absent at the time of partition and no s
allotted to him.
7. Minor Coparcener-If a minor coparcener can claim for reopening the
if he is not allotted his share at the time of partition, after attaining majority.
A partition can be reopened at the request of minor coparcener even if there
fraud, misrepresentation or any undue influence.
37. Discuss the effects of Hindu adoption and Maintenance Act, 1956.
Ans.The Hindu Adoption and Maintenance Act is one of the most important personal
laws in India. This is because it affects a large number of people. The Act applies to
'Hindus' following any sect, including Vaishnavs, Lingayats, followers of AryaSamaj.
etc.
'Hindus' under the Act also include .Tains,Sikhs, and Buddhists. In fact, this Act applies
to anybody who is not Muslim, Christian, Parsi or Jew. As long as the Hindu law
regulates a person, this Act would apply. This is why this Act applies to a large number
of people all over India (except in Jammu & Kashmir).
The Act contains several comprehensive provisions regulating the adoption of
children by Hindus. In fact, Section 5 says that any adoptions in contravention with
• the Act is void and has no legal effect.
According to Section 6, there are some important requisites of valid adoption.
Firstly, the persons taking or giving a child in adoption must possess the capacity and
right to do so.
Secondly, the adopted person must be capable of undergoing such adoption.
Finally, the adoption must comply with all provisions of the Act.
Additional provisions explaining conditions for adoption.
For example, a male Hindu willing to adopt a child must obtain his wife's consent.
However, this is not important if the wife is unsound in mind or is no longer a Hindu.
Similarly, a female Hindu must obtain her husband's consent as well.
Furthermore, there are some conditions for giving a child in adoption also.
Nobody can give a child in adoption except hislher father, mother or legal guardian.
There are a few other similar conditions as well.
Effects of Adoption
Once a person successfully adopts a child, the child gets all the rights
applicableto naturally born children. The child also thereafter severs all ties with its old
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family. However, any property he owns prior to the adoption will continue to rs of :&t
·'- ...~nl..
Ans. A minor child when he has no legal guardian, some nearer relation takes
responsibility of the management of his property and on his application to the
as guardian, if the court appoints him, he becomes the court guardian.
However, such person, if he does not make application to the court, but ma
the property of minor, he is referred to as de facto guardian. He is also referred
de facto manager of the property, because a de facto guardian of a minor, is
legal guardian nor a testamentary guardian and nor a guardian appointed by the
but he is a person, who himself: has taken over the management of the affairs This ;~ (
minor, as ifhe were a natural guardian. '-'
He had no lawful authority but can dispose of the property in case of erne
But such de facto guardian'S power to dispose of the property is abolished by • FaulO
11 of the Hindu Minority and Guardianship Act, 1956. • Divorce
The(\,
Under old Hindu law nothing has been said about the de facto guardian, but this the fau
of guardian was quietly recognised in practice. The Privy Council in hLt
Prasad case, as early as in 1856 observed that under Hindu law, the right of a
fide incumbrancer, who has taken from a de facto guardian a charge of land,
honestly, for the purpose of saving the estate, or for the benefit of the estate,
affected by the union of the de facto with the de jure title.
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T~(
obtained on the basis of no fault theory, it means divorce can obtain by the
The q)T1(
consent of the parties to marriage under the marriage laws (Amendment) Act, 1976.
cr~'
Grounds under Fault theory:
Adultery; the adultery is considered as one of the most important ground for se s~r
ment
divorce. Adultery means the consensual and voluntary intercourse between a
a~
person with another person, married or unmarried, of the opposite sex. Even natur
intercourse between the husband and his second wife i.e. if their marriage
considered under bigamy, the person is liable for the Adultery. ""i'
40. Who is
The concept of Adultery was inserted under the Hindu Marriage Act by the M guaa\J:
Laws Amendment Act, 1976. Ans. The I
Essentials of Adultery: the deat""c
I. One of the spouses involved in the intercourse with another person, marri
unmarried, of the opposite sex. ~
2. Intercourse should be voluntary and consensual. Ias~
3. At the time of the act, the marriage was subsisting. .oint farm
4. There must be sufficient circumstantial evidence to prove the liability of ...""._J a. in\..t
spouse prov
• Abandonment for a certain length of time: The permanent abandon y~
one spouse by the other spouse without any reasonable justification and without, b. in th
consent. In General, the rejection of the obligations of marriage by one party. a~
Essentials c. in 1
1. Permanent abandonment of the other spouse. '-'
2. Rejection of the obligation of marriage. No~~
3. Without any reasonable justification. a. Ifm
4. No consent of another spouse. b. I\_,
• Prison confinement: Confinement in prison is fault grounds for divorce, (van:
the particulars of the imprisonment can matter. For example, two husbands E~
drew prison time for drunken driving. A husband going to jail for sixty inch:
a drunk driving conviction probably would not be grounds for a divorce; a
husband going to prison for three years for vehicular homicide while
intoxicated probably would be. In this case, a short sentence for a lesser
probably is not grounds; a long sentence for a felony probably is. Each
specifies how long the confinement must be for it to be considered
grounds.
• A spouse is physically unable to have sexual intercoure;
Impotence is a traditional ground for divorce and it remains on the books in
states that still allow fault as well as no-fault divorces. State law
divorce, and the treatment of impotence as grounds for divorce varies
Some states require that a spouse be impotent at the time the couple
while others allow a divorce if impotence occurred during the marriage.
laws require that impotence be permanent to grant a divorce, a tough
prove in an era of medical advances in treatment for sexual dysfunction.
•
• FAMILY LAW
40. Who is the guardian of a minor child? What are the powers of a natural
guardian?
• ADs. The natural guardian of a minor boy or minor unmarried girl is the father. On
the death of the father, the mother becomes the natural guardian.
••
iarried
The natural guardians of a Hindu, minor, in respect of the minor's person as
well as in respect of the minor's property (excluding his or her undivided interest in
joint family property), are -
a. in the case of a boy or an unmarried girl-the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five
years shall ordinarily be with the minor;
b. in the case of an illegitimate boy or an illegitimate unmarried girl - the mother,
and after her, the father;
• To do all acts which are necessary or reasonable and proper for the benefit ofthe
mmor or
1. For the realization, protection or benefit of the minor's estate; but the guardian
Can in no case bind the minor by a personal covenant.
2. The natural guardian shall not, without the previouspermission of the court,
a. Mortgage or charge, or transfer by sale, gift, or
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46
•
le
• a
Reddy, it was he Id that if there is a judgement against the Karta of the family, it
automatically binds all the other members of the family .
2. power of management: In the case of Bhaskaran v Bhaskaran, it was held
•
will
that the Karta of the family has absolute power of management. As being the
head of the family he cannot be questioned by anyone. He can spend all the
family funds without being interrupted except in cases of fraud or
•
nor or misappropriat ion.
3. Power over income: All the members of the joint family hand over their income
to the Karta of the family. He looks after the allotment of the funds to the
members of the family according to their needs and looks after their
requirements. He provides all the members of the family with the required
funds.
4. Power of alienation: The Karta's power of alienation is limited and it can be
challenged by the coparceners. Karta can exercise the power of alienation in
these 3 circumstances:
a. Apatkale (Legal Necessity)
•
ed to c. Dharmarthe (Indispensable duties)
• Legal Necessity: For interpretation, it can be stated that things which are
deemed necessary for family members.
• The benefit of the estate: Anything done in furtherance of the benefit of the
Hindu joint family is the benefit of the estate.lnthe leading judgement
ofBalmukundvsKamlavati Supreme Court held that anything which is done
for positive benefit of the estate is included in the benefit of the estate.
• Indispensable duties: This term signifies pious, religious obligations. A
•
l.
person under Hindu Law is bound by the religious ceremonies such as
Shraddha ceremony, Marriage as it is held to be a sacred duty in Hindu law
especially of daughters and most important the funeral ceremony. A Hindu
Karta can alienate the whole property to perform the indispensable duties.
5. Power to compromise: The power to compromise all the disputes related to
family is also vested in Karta. He can take all decisions regarding the
compromise whether being related to family or its management. However, if
his act of compromise is not justifiable then it can be challenged in a partition
suit. He can also compromise a suit pending in the court and it will be
binding on all the members.
6. Power to contract debts: The Karta has an implied authority to contract debts
and pledge the credit of the family for the ordinary purpose of the family
business. The members cannot escape from this liability even after partition.
• Loan on promissory notes: Whenever the Karta takes a loan or makes
execution of a promissory note for the reason being a family purpose or
business then an individual family member can also be sued against its
payment irrelevant of the fact that he/she was not a party to it. Although they
have a limited liability varying upon their share in the joint family property.
JB SERIES
47
such contracts are binding upon the family members. The reason behind
this power is that if such power is not conferred upon him then it
become impossible to carry out business.
Liabilities of a Karta
• Liability to maintain- Karta is to maintain all the members
r
Family. I he does not maintain any member then he can
maintenance and also can be asked for compensation.
• Liability of render accounts- As far as the family remains joint. Karta is
supposed to keep accounts of the family, but when partition takes place at tIuE1I"Vll ••HU""
time he will he liahle to account for family property. If any of the heir is
satisfied with his accounts, then he can constitute a suit against Karta to In C~ ..,
the truth and to know any misappropriation is done by Karta or not. object behi
• Liability of recovery debts due to the Family- Ilc h,IS the liability to reall_tU inaintain'-t
the debts due to the family.
• Liability to spend reasonably- He has the liability to spend the joint
funds only for the family purposes.
• Liability not to eliminate coparcenary property- It is the liability of
Karta not to alienate the coparcenary property without any legal necessi
benefit to the state.
• Liability not to start new Business- It is the liability of the Karta not to
new business without the consent of other coparceners.
Conclusion: The position of the Karta, can be said that he has fewer liabilities
more powers. When it comes to determining the position of Karta, he holds a
position.
Ans: Pendent Lite is a Latin term meaning 'awaiting the litigation' or ' pen
litigation' which applies to court orders to which are in effect while a
pending. In divorce cases Pendent Lite order is often used to provide for the
of the lower income spouse while the legal process moves ahead.
Section 24 of Hindu Marriage Act, 1955, empowers the power to
specific reliefs , to the husband or wife as Pendent Lite when the matrimonial
pending as per the section. They are :
the fact that who started the case or proceedings. Grant of maintenance dependent
upon the fact that one party of the proceedings does not have sufficient independent
income for support or necessary expenses of the proceedings: he / she can get it from
other party who is financially richer.
•
The provision of Maintenance Pendent Lite is also present on Special Marriage
Act, 1954, under section 36 and in Cr. Procedure Code under section 1 :25. But here
only wife can get the maintenance.
The expenses of proceedings include the fees of lawyer. SLllllS to meet LIpstamp
charges, clerical charges. travelling expenses etc.
In deciding the question of Maintenance Pendent Lite the only issue to be
considered is whether the claimant is or is not in a position to maintain herself or
himself.
In Chitra Lekh a v. Ranjit Rai, AIR 1977 Del. 176, it has been laid down that
the object behind Section 24 is to provide financial assistance to the indigent spouse
to maintain herself (or himself) during the pendency of the proceedings and also to
have sufficient funds to defend or carryon the litigation so that the spouse does not
unduly suffer in the conduct of the case for the want of funds.
•
•
•
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49
50
• Judgement: In the given case the husband and wife mutually agreed to
divorce with-in-six months from the date of marriage. That means they
fulfil one of the conditions of the mutual consent divorce that they
separately one year.
So as per Section 13B of The Hindu Marriage Act,1955 they cannot, seek
divorce by mutual consent.
• 1. Can he inherit his maternal grandfather's property when his mother is alive?
2. Can a murderer inherit any ancestral property?
• Principle:Section 25 of the Hindu Succession Act, 1956 falls under th~se
criteria. This Section states that any person who commits the murder or assists
the murder shall be disqualified from .inheriting the property of the person. or
any property in the promotion to succession to which he or she committed the
murder. So as, If any person found guilty for the murder of the deceased
intestate must forfeit his or her rights.
The slayer rule, in the common law of inheritance, stops a person inheriting property
a person they murder (e.g .. a murderer does not inherit from parents or a spouse
killed). In figuring inheritance of the decedent's estate, the slayer is treated as
they had died before the person they murdered.
=Judgement: Based on the above two principles A cannot inherit his maternal
grandfather's property. Further when his mother is alive he cannot directly
inherit from his maternal grandparent'. He can inherit only after his mother's
•
death.
•
'.th
'A' a Hindu Married
valid marriage?
of the case;
a Muslim girl according to Hindu custom. Is it a
• 1. 'A' files a petition for restitution of conjugal rights against his wife'
•
2. The petition is dismissed since B had sufficient reason to stay away for 'A' had
taken another wife.
3. The wife claims maintenanceunder Section 25.
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r
1. Whether the wife gets maintenance or not? Now"';
• Principle: Under Section 25 of the Hindu Marriage Act, either spouse some erne
claim maintenance and permanent alimony but that can be done only after j of the ~l
separation or after divorce. When the marriage is subsisting there is no question
applicability of Section 25, 6. AH~'
• Judgement: So with the above principle it is very clear that Under S in-law. Di~;
25 of the Hindu Marriage Act. either spouse can claim maintenance and perm • Facts of
alimony but that can be done only after judicial separation or after divorce. But in I. A Hir....,
given case B the wife of A is staying away from her husband saying that he has 2. He left b:
another wife which is not proved in the court and she did not take divorce from • Issue~
i.e their marriage is still subsisting. So there is no question of applicability of 1. How t(l d
\.;
25 i.e she cannot claim Maintenance(permanent alimony).
5. A, a Karta of a joint family sold some of the land of the family for
purpose of medicalexpenses of his son. Whether the alienation of the prope
valid.
1. The Karta may alienate the joint family property irrespective of legal
or benefit of the estate with the consent of all adult coparceners in
at the time of such alienation.
Judgement:
1. According to first principle he can alienate with other coparceners consent,
in the given case it was not given whether the other coparceners gave
or not it is assumed their consent was obtained.
• based on the first and second principle medical expenses come under
some emergency circumstance and it is not for unlawful act hence the alienation
the property by karta is valid and justified.
A Hindu dies intestate leaving behind his mother, brother, son, daughter-
. Distribute the property.
Facts of the case :
A Hindu dies intestate.
He left behind his mother, brother, son, daughter-in-law .
. Issues in the case:
How to distribute A's intestate property'?
pie: Intestate succession means the inheritance of property from a person who
without leaving a last will and testament.Accordingly, to carry out an "intestate
purely means to transfer something after the owner has died and in
~,,",':>"'IVIl"
• ""'U'-''''''''''''''..l, his spouse and children will collectively get his / her share.
: A has died. He has left behind, his wife, C, his mother and D, elder son,
.
• son and G, his daughter. E , his middle son had died few years earlier and
behind his wife E-l , and two children E-2, and E - 3. His property would be
in 6 parts. Each legal heir would get one part. Wife and children of deceased
collectively get one part. The legal heirs specified in Class-Il will get the
of the deceased only if there is no relative in Class-I.
In this schedule, Father is named first and brother sister as second so
other than father noother Class- I heirs are there the father only get the entire
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53
FAMILY
7. A Hindu husband married again concealing the fact that he had wife a iple:Jt..,.,
children. Advise the second wife. obtaine
Facts of the case: divorce ~
1. A Hindu husband married again. together by t C
2. He concealed about the fact that he had wife and children.
Issues in the case: Thecondition:
\.;
I. What are the remedies available to second wife? 1. That husb
more. \wi
Principle: When a person hides the fact of his previous marriage and gets That they
again. then it constitutes fraudulent action. Thus it is illegal. Section 494 states That b(\w(
any person who is already having' a husband or wife and marries another person' disso Ive-l.
existence of previous spouse. then the person shall be punished with impriso "'''''_Tn
which shall extend to seven years and would be liable to fine.
'-'
the afor
1'.ltVU! petitio,-",
Rights of the second wife:
Judgement: In the given case the second marriage of a Hindu man and
woman is illegal as he is already married and had children.So the second
is illegaland the Hindu man shall be punished with imprisonment which shall
to seven years and would be liable to fine.
But his second wife will not have any rights to claim because their
marriage is invalid and void.
2. They agreed to take mutually consent divorce from the date of Marriage. Hi~
Issues in the case: r~
1. Is it possible to get divorce under section 13B of the Hindu Marriage Act of
'-'
•..
• FAMILY LAW
Principle:As the name itself suggests, divorce by mutual consent means a decree of
•
'e and divorce obtained when both parties to the marriage, i.e., both husband and wife, agree
for divorce in an amicable manner, with no party opposing it. A joint petition is filed
• The conditions for making joint petition for divorce by mutual consent.
1. That husband and wife have been living separately for a period of one year or
• more.
That they have not been able to live together. .
That both husband and wife have mutua II)' agreed that the marriage should be
dissolved. '
re the aforesaid 3 conditions are satisfied. both the husband and wife can file a
petition before the District Court for dissolution of marriage, i.e., for divorce by
consent, under the provisions of the aforesaid Section 13-B of the Hindu
Act.
Judgement: In the given case the couple Iived together only just for 6 months
as per Section 13-B of the Hindu Marriage Act that husband and wife have been
separately for a period of one year or more. But in the given case the couple
to take mutual consent divorce within 6 months. So for this couple Section
-B of the Hindu Marriage Act is not applicable and courts will not accept their
consent divorce petition. So it is not possible to get divorce under section
of the Hindu Marriage Act 1955. They need to wait atleast one year more.
JB SERIES
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55
hands in front of the fire and third the most significant one is the making • Princ'_'t
rounds around the sacred fire. 'intestate
Class~
It is concerned with the Saptapadi which means that taking seven rounds around and trp I
fire with their partner; after its completion, marriage becomes complete. then t~i
• Judgement: In the given case the above mentioned rituals were not followed' 18. '-'
their marriage. So that marriage is legally not valid. • Judgern
under~i
10. A girl. of 20 years consented to the marriage under force
unma\_/
misrepresentatiqn of the parents. What is the remedy you would suggest if among a
needs your advice?
• Facts of the case : \.-
A, a Hind
1. A girl of 20 years consented to the marriage.
of~
2. She consented under force and misrepresentation of the parents for
Facts of t
marriage.
A,aH~
• Issues in the case:
He adcr~_e
I. What is the remedy available or that girl ?
• Principle: As per the laws in India, both men and women have rights
Issues wr
Whethv
forced marriages. The rights are applicable overall. Both men and women Principle
right to enter into marriage and freely choose a partner of their choice. male 1,-,(
• The Delhi High Court has said the right to choose one's life partner and in cs
fundamental right. "The right to choose your life partner, or whom you as ...•.
getling\.;·1
with, is a fundamental right. It is an integral part of the right to life. they are
• Forced Marriage is voidable as per Hindu Law .If the complaining party . renounset
not give explicit consent for the marriage; a court can void it, even under
Law.
• Judgement: In the given case also a girl of 20 years consented to the
under force and misrepresentation of the parents. As per the above .
as per the laws in India, both men and women have rights against
marriages. So in the given case the girl also can file a case to nullify
marriage.
11. A, a Hindu dies leaving behind his wife (U), mother (M), married da
(Dl) and unmarried daughter (D2). At the time of his death, he had
Rs. 40,00,000. Distribute the property according to Law.
• Principle: In legal terms, the person who dies without leaving a will is called an
'intestate', In legal terms, the son, daughter, wife and mother are all called
Class-l heirs and the money would be shared equally among them. Here the son
cad and the daughter are assumed to be adults and not minors, If they are minors,
then their amount of the property would be held by their mother until they are
18.
l-ed'
• • Judgement:As per the above principle in the given case all the persons come
'.•
st if
under Class-I heirs. I ehis wife (U), mother (M). married daughter (0 I) and
unmarried daughter (02). So the money' Rupees 40.00.000 should be distributed
among all ofthcm equally.
12. A, a Hindu adopted a girl child without the consent of his wife. What is the
status of adoption under Law
• Facts of the case :
1. A, a Hindu adopted a girl child.
2. He adopted without his wife's consent.
• Issues in the case:
1. Whether such adoption is valid or not?
• Principle: Section 7 of Hindu Adoption and Maintenance Act 1956 states that a
male Hindu person can adopt a son or daughter only with the consent of his wife
and in case of many wives all of their consent is mandatory . The only way of
getting around obtaining the permission of the wife or of the wives is if she or if
they are unsound, if they have died, if they have completely and finally
renounced the world, and ifthey have ceased to be a Hindu.
The Allahabad High Court in one case held that a man, living separately from his
wife without obtaining a divorce,also needs the consent of such estranged wife.
JB SERIES
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~
JlFi
57 \.f
Principle: Under the Hindu Marriage Act 1955 Section 13 illustrates • Is~;
grounds for divorce. Among them conversion is one of the grounds to file a di 1. What
petition in the court of law. Conversion means that the person has vol • Prltltj
relinquished his or her religion and adopted another religion after going through hU~
formal ceremony. If a Hindu embraces a totally different religion. such any
Christianity or Islam, he or she may be stated to be a converted. pr~1
The party who ceases to be a Hindu by conversion cannot file a petition ancest
divorce under this section. This ground can be claimed only by the other party. Inv
The Hindu marriage act has proposed two conditions when conversion as a ,,~~..__, decca:
for divorce can be invoked. these are: tha~t
• That the respondent has ceased to follow the faith of Hinduism. that is he is no The \\
longer a Hindu the~1
• That the respondent has converted to another religion that is a non-Hindu mott-e
Hon'b'li
• Judgement: According to Section 13 off Hindu Marriage Act in the given she U
B will succeed in her case and she will get divorce on the grounds of con further
the hU'-'l
14. A makes a gift of his ancestral property. A son is born to him two months ..
later. Can the gift be set aside and if so, to what extent?
rUdl~enrlen: in the given case the widow will get all her share in her husband's self
or owned property as well the partial property that would have come to the
by way of partition of the ancestral or coparcenary property.
'....,V'~HU
A girl of 18 years was taken away from lawful custody of her parents by force
was married to a person who was her maternal uncle's son in a temple near
village. What is the remedy available to the girl?
Facts of the case :
A girl of 18 years was taken away from lawful custody of her parents
She was taken away by force and was married to a person who was her
maternal uncle's son.
The marriage took place in a a temple near their village
Issues in the case
What is the remedy available to the girl?
Principle:A marriage which can be annulled or avoided of one or both the
parties is known as voidable marriage. Section 12 of the Hindu marriage Act
contains relevant provisions of voidable marriage. This section lays down
four grounds on which a Hindu marriage becomes voidable. They are
Inability of the respondent to consummate the marriage on account of his or
her impotency.
Respondent's incapacity to give consent or suffering from a mental disorder.
Consent of the petitioner being obtained by fraud or force.
Concealment of Pre-marriage pregnancy by the respondent.
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FAMilY LAW 60 \w
Judgement:In the given case also the girl can filea suit in the court to nul1ify ~
the marriage as she did not give free consent and she was kidnapped and was only in I
forced to marry that person. ~
18·V
17. A Hindu dies leaving behind his father, mother, two sons and two daughte marrrag.
the time of his death he has 30 lakhs of self-acquired property. Distribute pro this 1\.;'
among his legal heirs according to the order of preference.
• Judgement: As per the above mentioned rules in the given case Class- I
include his widow , mother, 2 sons and 2 daughters are there and his father
comes under Class- II heir. So the 30 lakhs property will be distributed among all
6 Class- I heirs. i.e each gets five lakhs rupees. ( mother, widow, 2 sons,
2 daughters) 30 lakhs / 6 heirs = 5 lakhs.
•
" FAMILY LAW
Father will not get any share as he is Class-2 heir. He gets the share
only in the absence of Class-I heirs.
18. X, a Hindu married Z again during the life time of his wife Y. the second
marriage was consented by all the relatives of X, Y and Z. What is the status of
this marriage under Hindu Marriage Act 1955?
•
:.der
• Issues in the case :
What is the status of this marriage under Hindu Marriage Act 1955?
Principle:The Hindu Marriage Act, 1955, prohibits polygamy. Section 5 of the
Hindu Marriage Act, 1955, specifies that at the time of marriage, none of the parties
01
.per h~ or
should have a living spouse. Si...',-·tl!lI.! marriage with the consent the !llst \\ ill' is
void under section 11 of the l lindu Marriage Act. 1955. Consent of first wife will not
make Second marriage legal.
• Law does not permit bigamous marriages for Hindus. If anybody goes for second
•• marriage it will be illegal and the second wife will not enjoy any rights which are
bestowed on a legally married wife.
• Judgement:So in the given case the marriage of X with Z is illegal and void under
Hindu Marriage Act 1955.
•
ill the
~iall 19. A Hindu male married a Christian female without solemnizing the ceremonies.
Is it a valid marriage under the Hindu Marriage Act, 1955? Give reasons.
~Wd • Facts of the case :
• A Hindu male married a Christian female without solemnizing the ceremonies.
JUdgement:In the given case it is clearly given that A Hindu married a Christian female
without solemnizing the ceremonies which are mandatory. So it is not a valid marriage
under the Hindu Marriage Act, 1955.
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FAMILY ~.
----------------------------------------------~~~
20. A Hindu female dies intestate leaving behind her husband, daughter and 22. A l\.t,(
parents. Distribute the property. from him
husban~J
• Facts of the case :
• A Hindu female dies intestate. • ~1
• She has her husband .. daughter and her parents • Al-I
• Issues in the case: • S~
1. How to distribute her property? • S\.;
• Principle:As per the present position of law, her property would devolve in • Issu
second category i.e. to her husband's heirs. Thus, in case the mother of 3. \\.II
husband is alive, the deceased Hindu female's entire self-acquired pro Princil\._,:
would devolve on her mother-in-law. If the mother-in-law is also not alive, the spouse
would devolve as per the rules laid down in the case of a Hindu male claim tV:
intestate. Thus, if the father of her deceased husband is alive, the next in line applicatioi
inherit the property will he her Iather-in-law and if the father-in-law is also file the~
alive, then her property \\ ould devolve on the brother and sister of the dec he/she car
husband. Thus, the entire self-acquired property of the Hindu female would is paid ~
in the brothers and sisters ofthe pre-deceased husband and not that of the providt}
female even if she has siblings that are alive.
Therefore, where a Hindu female dies intestate leaving behind her self-ac Nl
property and in case where her heirs in the first category fail, her property spouse~
devolve totally upon her husband's heirs who may be very" remotely related Judgef'~
probably even unaware of each other's existence. maintelMr
• Judgement:Based on the above principle in the given case the women's
will be distributed equally between her husband and her daughter only as they
daughC
Class-I heirs. Her parents will not get any share in the property.
21. The Karta of a Hindu Joint Family sold certain immovable property : ~C;
family for medical purpose of one of the members of family. Discuss the
this sale. :~
Issu~'
• Facts of the case ; 1. Is the
• The Karta ofa Hindu Joint Family sold certain immovable property of the Princv
family a. In
• He sold for medical purpose of one of the members of family. h~1
• Issues in the case: sw
2. Is it a valid sale? s~
• Principle :The karta has the duty to spend the joint family funds only for the
purposes of the family and should spend reasonably .J~
Judgement:As the karta has the duty to maintain the joint family implies
all the family members needed medical expenses. It is also comes under H~
expenditure only and also health is very important to all. So it is a valid sale ~
was not for any immoral purposes.
•
•
••
MILY
and her
22. A Hindu wife, who is subjected to cruelty by her husband, wants to live apart
FAMILY LAW
23. A Hindu male aged 40 years adopts a daughter aged 20 years, while he has a
daughter living at the time of adoption. Is the adoption valid?
f.•
• He has a daughter living at the time of adoption.
Issues in the case:
1. Is the adoption valid? .
Principle:
•• a. In case of adoption of a daughter by any Hindu male or female, they should not
have any daughter or son's daughter at the time of adoption.
h. Where there is an adoption of a daughter by a male then the adoptive father
should be at least twenty-one years older than the child.
W the
·Judgement:In the given case A Hindu male aged 40 years adopts a daughter
aged 20 years, while he has a daughter living at the time of adoption.
His adoption is against the above mentioned rules of adoption as the age
difference between the adopted girl and the person adopted is only 20 years and
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·
I
not 21 years. Secondly he is already having a girl at the time of adoption. So )\.,.;
adoption is not valid. • JIf' (
• A~I
24. A died in 1933. His daughter B becomes heir. She dies in 1969 without issue.
· \./
• y S(
The property is claimed by A's sister and 8's husband. Decide. '-'"
Issues in t
.. Facts of the case: • \\.tI!
.. A died in 1933. Princip':':
.. His daughter B becomes heir. • A'11
.. She dies in 1969 without issue. ~ .
t \._,:
.. The property is claimed by A' s sister and B' s husband. • Till
.. Issues in the case: C\,..t
•
on. So • X. a Hindu husband converted to Islam.
• •
•
He did so solely for the purpose of second marriage.
And married Z without dissolving his first marriage with wife.
• •
•
Y filed a case against X for the offence of bigamy.
Y sought direction to make the second marriage null and void.
•• Principle:
• A Hindu marriage solemnised under the Act can only be dissolved on.any of
.d•
• Conversion to Islam and marrying again would not. by itself, dissolve the
Hindu marriage under the Act.
• The second marriage by a convert would therefore be in violation of the Act
and as such void in terms of Section 494, IPC
All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu
• husband who marries for the second time after conversion to Islam. He has a wife
living, he marries again. The said marriage is void by reason of its taking place
••
laim
during the life of the first wife.
We, therefore, hold that the second marriage of a Hindu husband after his conversion
Islam is a void marriage in terms of Section 494 IPC.
During the lifetime of 'F', the father, the grandmother appointed M, the
of the minor children as guardian by executing a will . M proposed to
.... c... ~. the properties bequeathed to the minor children. F objected and filed a
for injunction preventing M to make the transfer of the properties to his
on the ground that he is the natural guardian of his minor children.
of the case:
During the lifetime of • F' , the father, the grandmother appointed M, the
mother of the minor children as guardian.
M appointed mother as guardian by executing a will ..
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6S FAMILY 66 \..r
Section 6. Natural Guardian: The natural guardians of a Hindu, minor, in respect \..0-
Hil
of the minor's person as well as in respect of the minor's property (excluding his or
her undivided interest injoint family property). are- Distrib~
• in the case of a boy or an unmarried girl-the father, and after him, the
mother: provided that the custody of a minor who has not completed the age .J\.)
of five years shall ordinarily be with the mother; • He I
• in the case of an illegitimate boy or an illegitimate unmarried girl - the
and after her, the father;
• In the case of a married girl- the husband.
Judgement: Based on the above principle it is very clear that when father is
mother cannot become the natural guardian of minor children. In the given
mother cannot become the natural guardian of her children when their father is
. Their grandmother's Will won't have any effect regarding the guardian ship
case.
28. A files a petition for restitution of conjugal rights against his wife.
1~
petition is dismissed since B had sufficient reason to stay away for A
taken another wife. The wife claims maintenance under section 25 of 2\.1
marriage Act. Decide.
\..i
Facts of the Case: 3. ,
\..t
• 'A' files a petition for restitution of conjugal rights against his wife' 4. (
• The petition is dismissed since B had sufficient reason to stay away for' \.t (
• Principle: Under Section 25 of the Hindu Marriage Act, either spouse can
~.
• claim maintenance and permanent alimony but that can be done only after
judicial separation or after divorce. When the marriage is subsisting there is no
question of applicability of Section 25.
• Judgement: So with the above principle it is very clear that Under Section
•• 25 of the Hindu Marriage Act, either spouse can claim maintenance and
permanent alimony but that can be done only after judicial separation or after
divorce. But in the given case B the wife of A is staying away from her husband
saying that he has taken another wife which is not proved in the court and she
did not take divorce from him i.e their marriage is still suhsisting. So there is no
e question of applicability of Section 25 i.e' she cannot claim
aed Maintenance(permanent alimony).
:•.ct
I r
29. A Hindu dies intestate leaving behind his mother, father, widow and son.
Distribute the property.
Following are the rules governing the division of interest among class I heirs.
1. The share of each son and daughter, and that of the mother shall be equal.
2. The widow of the deceased shall take one share and if there is more than
one widow all of them, collectively take one share i.e., the share equal to
the son or daughter and will divide it equally among themselves.
3. A predeceased son survived by a widow or son or daughter shall be allotted
a share equal to a living son.
4. Out of the portion allotted to the predeceased son his widow and living sons
and daughters will take equal portions with respect to each other. Any
branch of the predeceased son of this predeceased son will get an equal
portion.
5. The rule applicable to the branch of predeceased son of the predeceased son
is the same as of predeceased son wherein son, daughter and widow will get
an equal share.
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67
Judgement: As per above principle in the given case class I heirs are
widow and son. So they all get one share equally.
• As long as a single class I heir is present, the property will not go to heirs'
class II category. Hence father being a class-Il sub category -1 will not get
share in the property. ""
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3. Right to Property
\Jr
4. Modes of Termination of a citizenship
2V t
I4.Doctrine of severability
I5.Doctrine of Eclipse
3k
Vt
I6.Constituent Assembly
-"
•
• 2
PART - B QUESTIONS
L/\\V OF CONSTITUTION
• 30. Examine the role of Drafting Committee in framing the Indian Constitution.
• 32.What was the basic idea of Socialism? And how did socialism affect the
•
economy?
33.What are the features of Federal Constitution?
• 34.Write about Secularism. Explain the scope and nature of the right to freedom of
religion in India with the help of decided cases.
38.What is meant by Free Legal Aid? Is Free Legal Aid is a fundamental right?
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LAW OF CON::' III U IlON
\.;
41. Explain the constitutional provisions relating to formation of new states in -".IUII_
of India.
1~~V
wit~'1
court.
Eqi\Ji
equal l:
EX~1
.~
absolu1
hv
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L/\V.' OF CO~!ST1TUTION
LA W OF CONSTITUTION -1
Part-A Answers
1.Rule of Law.
Ans. The rule of law is the concept that no one is above the law - it is
applied equally and fairly to both the government and citizens. This means that all
people, regardless of their status, race, culture. religion. or any other attribute,
should be ruled equally by just laws.
Meaning of the Rule of Law
The three meanings as given by Professor Dicey of the Rule or Law are:
1. Supremacy of the law or the absence of arbitrary power:
This means that absolute supremacy of law prevails contrary to the
Government's arbitrary power.
A man can only be punished due to a breach of law and nothing else.
2. Equality before law:
In the eyes of law, all are equal before law and no one is above law.
3. Absence of individual liberty:
A variety of constitution grants individual freedom but does not provide a
method.
The source of individuals' rights in the constitution is neither written nor
mentioned.
Provision for individual liberty is not in the U.K.
Rule of Law in India:
Supremacy of Law: It means a person can be punished for an infringement of the
law but cannot be held responsible and punished for anything else. In accordance
with the ordinary procedure, an alleged offence needs to be proven in front of the
court.
Equality before Law: Under Article 14, every person has equal protection and is
equal before law.
Exception to Rule of Law: The above mentioned rule of equality is not an
. absolute rule and contains a lot many exceptions to it and they are:
• A certain class of people being subject to some special rules are not prevented
by the rule of law.
Example- Armed forces members are controlled by their military rules; the
medical council of India controls the medical practitioners.
• Special rules in the professions govern those specific members of society.
These people are treated differently from other citizens.
Example- Doctors, police, lawyers, nurses, members of the armed forces, etc.
Why is the Rule of Law Important for Society?
• The rule of law is important because a country that adheres to the rule of law
results in a society in which:
• All persons and organizations including the government are subject to and
accountable to the law.
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LAW OF CONSTITUTION
2. Citizenship by domicile.
Ans. A citizenship is a legal status acquired by a person. Though India :
federation having two levels of government there is only one citizenship.
Example - Indian citizenship and no separate State citizenship.
Domicile is a legal term used to refer to the permanent or legal address
(place or country) of an individual. In business, domicile is the place or
in which a business is registered or has been incorporated. For a business to
Domicile will be the business' registered address or its registered office.
Classification of Citizens
a. Citizens by domicile
b. Citizens by migration.
c. Citizens by registration
Citizenship by domicile is one of the modes to acquire
Domicile in India is considered an essential requirement for acquiring the
Indian citizenship Article 5: of the Indian Constitution says about ci
domicile.
t to Property
: Article 300 A enumerates that: "No person shall be deprived of his property
by authority of law".
The 44th amendment has abolished the right to property as a fundamental'
Consequently, an aggrieved person cannot directly approach the Supreme
under Article 32 of the constitution for infringement of his fundamental
Moreover, the right to property is also not a basic feature of the constitution.
ow the right to property has very limited constitutional protection under Article
A. The state cannot deprive a person of his property saved by authority of law.
connotes that the government can acquire private property by making a law.
Currently, a deprived person cannot assail the said law on the basis that it
lates the fundamental right. The protection of Article 14 and 19 of the
. of India is not available to a person under Article 300 A. But the
t is obliged to pay fair compensation for the acquired land.
compensation under Article 300 A
44th amendment Act has abolished the fundamental character of the right to
, Also, it is not a basic structure of the Indian constitution.
Article 300 A has no express provision that the government will pay
romlpelnsaltJ'IOnto the expropriated owner. In Kesavananda Bharati v State of
AIR 1973 se 1461; a majority decision of the Supreme Court held that
right to property was not part of the 'basic structure' of the Constitution,
after the Twenty-Fifth Amendment.
Right to property is still a constitutional right and the aggrieved person
challenge the acquisition proceeding under Article 226 of the constitution. He
seek justice from the High Court if the amount of compensation is unfair.
of Termination of a citizenship
The Citizenship Act, 1955, prescribes three ways of losing citizenship
acquired under the Act or under the Constitution
.Renunciation
2.Termination
,Deprivation
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LAW Ul-lUf\J~111 U IIUN
'-'
Corporat
• By Renunciation - inalit'\.t
1. Any citizen ofIndia can make a declaration renouncing is Indian citizenship.
2. However, ifsuch a declaration is made during a war in which India is 6. Equa,-,:
engaged, its registration shall be withheld by the Central Government. ADS: Th
funda'tWe
3. Further, when a person renounces his Indian citizenship, every minor child
that person also loses Indian citizenship.
4. But, when such a child attains the age of 18, he may resume Indian
lightc:
Servi~
citizenship. all thV
• By Termination - wages, a
1. When an Indian citizen voluntarily acquires the citizenship of another country, empk~
he/she automatically ceases to be Indian. Court of
2. This provision does not apply during a war in which India is engaged. \wl1
• By Deprivation - It is a mandatory termination of Indian citizenship by the impleme
Central government, if: and~
~ The citizen has obtained the citizenship by fraud: prever=b
~ The citizen has shown disloyalty to the Constitution of India; settin~'t
~ The citizen has unlawfully traded or communicated with the enemy wom~1
during a war;
~ The citizen has, within five years after registration or naturalization, comp\.,;
been imprisoned in any country for two years; and be appoi
~ The citizen has been ordinarily resident out of India for seven years beingv
continuously (not applicable to students studying abroad or to .. N
in the service of a government in India or an international
of which India is a member, or to citizens who register annually at
Indian consulate regarding their intention to retain his Indian
citizenship ).
5. Right to work
Ans: Right to work is the idea that individuals have a human right to work
part in productive employment. The right to work is ( respected) in the U
Declaration of Human Rights and recognized in international human .
through its incorporation in the International Covenant on Economic,
Cultural Rights, where the right to work focuses on financial, social and
development.
The 'right to work' subsequently is the most basic component of life to
have the basic needs of food, water, clothing and shelter and
something more than simply the basic needs of life one must work to earn.
However, the Indian Constitution does not expressly recognize the 'right to
as a fundamental right. It is set in Part IV (Directive Principles of State
the Constitution under Article 41, which is not enforceable in the court.
turned into a 'fundamental right' through a judicial interpretation.
All because of the wider interpretation of Article 21 made by the Hon'ble
Court through its judgment in Olga Tellis and Ors.v Bombay
o
.... LAW OF CON~TITUT;Oi~
•
Corporation and Ors.- 'right to work' was perceived as a fundamental right
inalienable in the 'right to life'.
t.
:Whip.
child of
6. Equal pay for equal work
Ans: Though the principle is not expressly declared by the Constitution to be a
fundamental right yet it may be concluded by construing Articles. 14 and 16 in the
I.e•
Court of India, 26-10-2016]. '
Indian Parliament has enacted the equal remuneration act. 1976, to
implement Art.39(d). The act provides for payment of equal remuneration to men
and women workers for the same work, or work of a similar nature and for the
•
e~
prevention of discrimination against recruitment of women and provides for the
setting up of advisory committees to promote employment opportunities for a
women.
Provision is also made for appointment of officers for hearing and deciding
tA, complaints regarding contraventions of the provisions of the Act. Inspectors are to
. be appointed for the purpose of investigating whether the provisions of the Act are
being compiled by the employers are not.
Non-observance of the Act by government contractors has been held to
;raise question under Art. 14. of Constitution Of India 1949 i.e. Equality before
law: The State shall not deny to any person equality before the law or the equal
orotection of the laws within the territory of India Prohibition of discrimination on
Rights at Trial
Right to a Fair and speedy trial: The Constitution under Article 14 guarantees
the right to equality before the law. The Code of Criminal Procedure also
provides that for a trial to be fair, it must be an open court trial. This provision is
designed to ensure that convictions are not obtained in secret. In some
exceptional cases the trial may be held in camera.
In cases, wherein the maximum punishment that can be imposed is 2 years.
once the accused is arrested, the investigation for the trial has to be completed
within the period of six months or stopped on receiving an order from the
Magistrate, unless the Magistrate receives and accepts, with his reasons in
writing, that there is cause to extend the investigation.
Right to Consult a legal practitioner
Every person who is arrested has a right to consult a legal practitioner of his
own choice. This has been enshrined as a fundamental right in Article 22( 1) of
the Constitution of India, which cannot be denied in any case. Section 50(3) of
the Code also lays down that the person against whom proceedings are initiated
has a right to be defended by a pleader of his choice.
Rights of free legal aid
The Supreme Court in the case of in Khatri(lI) v. the State of Bihar has held that
the state is under a constitutional obligation to provide free legal aid to an
indigent accused person as is implicit in Article 21 of the Constitution. This
right does not come into picture only at the time of trial but exists at the time
when the accused is produced the first time before the magistrate, as also when
remanded from time to time.
Right to be examined by a medical practitioner
Section 54 of Cr.P.C. enumerates this right. - When a person who is arrested,
whether on a charge or otherwise, if the arrested person requests Magistrate
shall direct to do the examination of the body of such person by a registered
medical practitioner unless the Magistrate considers that the request is made for
the purpose of vexation or delay or for defeating the ends of justice."
to speedy trial
: Though this right has not been specifically mentioned in the Constitution,
, the SC in the HussainaraKhatoon case has made it mandatory that the
in the trial must be conducted "as expeditiously as possible."
cases, wherein the maximum punishment that can be imposed is 2 years, once
accused is arrested, the investigation for the trial has to be completed within
period of six months or stopped on receiving an order from the Magistrate,
s the Magistrate receives and accepts, with his reasons in writing, that there is
to extend the investigation.
One of the main reasons for the right to a speedy trial is to prevent a
from being held in custody for a long time, only to eventually be found
. If the defendant is denied bailor cannot pay the bail amount, they will
in jail until their trial date. An innocent citizen should not be required to
many months in prison . Also, the right to a speedy trial reduces the stress
JB SERIES
11
LAW OF CONSTITUTION
on defendants and allows the defence to gather and present evidence while it i~
-12
determ
\.r
still fresh. A witness may struggle to recall the events leading to the charges rele\./
several months or more pass before the trial. of the )
Conch
'-'
Speedy Sentencing
Federal Rules of Civil Procedure provide that a defendant is entitled to be also'-'a
sentenced without an unnecessary delay. There also may be due process argurnej, judiCl'
if a delay in sentencing is extreme. Death penalty cases, which involve a separate but l?r!;,
sentencing phase, may present distinctive timing issues. \.,..
11. Unifc
10. Res Judicata. An~j
Ans: Section 11 of the Civil Procedure Code defines the doctrine of Res Judi countr'
is the matter which has already heen judged. It means that no court will have ma~:
power to try any fresh suit or issues which have been already settled in the reliC]
suit between the same parties.
This doctrine is based on the principle that if the matter is already decided by aD~(
competent court then no one has the right to reopen it with the subsequent . secure
is applied by the court where issues directly and substantially involved The\.)
the same parties in the former and present suit, are the same.
The doctrine of res judicata is based on three maxims. They are:-
1. Nemodebetbisvexari pro unaeteademcausa - It means no man shall be
punished twice for the same offence.
2·.Interest ReipublicaeUt Sit Finis Litium - It means it is in the interest of
state that there should be an end to litigation. Or Litigation must come to an
end.
3. Res Judicata Pro VeritateAccipitur - It means that a judicial decision
be accepted as correct.
Illustra tio n
A sues B on Cause of Action C, but A loses. Therefore, A may not try for
luck by initiating a new lawsuit against B on C.
Case Laws
In ManoharLal vs. Seth Hiralal, it was held that a court cannot proceed
subsequently instituted suit since the provisions contained in Section 10
Civil Procedure Code are mandatory, and no discretion is left with the court.
In Direct Recruit Class vs. the State of Maharashtra And Ors., the Supreme
held that "A dispute raised by a petition under Article 32 of the Constitution
be held to be barred by principles of res judicata including the rule of .
res judicata underlying Explanation IV of Section 11 of the Code of
Procedure, if the same has been earlier decided by a competent court
judgment which became final."
In Supreme Court Employees' Welfare vs. Union of India And Anr., it
that "When it is said that a previous decision is res judicata, it is meant
right claimed has been adjudicated upon and cannot again be placed in a
between the same parties. A previous decision of a competent Court orn
which are the foundation of the right and the relevant law applicable
•
• I flW Of: ror--J<;TITIITION
detennination of the transaction which is the foundation of the right and the
relevant law applicable to the determination of the transactions which is the source
•
ofthe right is res judicata.
•.en~
ed to be
Conclusion: A court will use res judicata to deny reconsideration of a matter and
also a way of avoiding unnecessary waste of resources in the court system. Res
judicata does not merely prevent future judgments from contradicting earlier ones,
but also prevents litigants from multiplying judgments. and confusion.
:IJate
e.•
vulnerable groups and harmonize diverse cultural practices.
The Law Commission of India notes that the tracts of the Constituent Assembly
debates reveal a lack of consensus on what a potential uniform civil code would
entail.
o"e
o an
While many thought the UCC would coexist alongside the personal law
systems, others thought that it was to replace the personal law. There were yet
• others who believed that the UCC would deny the freedom of religion.It was this
uncertainty that led it to be included in the Directive Principles of State Policy
•
must
rather than the chapter on Fundamental Rights in the Constitution.
12.RELIGIOUS DENOMINATION.
Ans: The constitution does not define 'religious denomination'. In the landmark
judgment of the Commissioner Hindu Religious Endowments, Madras v. Sri
LakshmindraThirthaSwamiar of Sri Shirur Mutt a denomination is "a collection of
individuals, classed together under the same name; now almost always
specifically, specially a religious sect or body having a common faith and
organisation and designated by a distinctive name." s.p Mittal further settled the
law on the determination of the nature denomination.
Thus if a body has a:
Common Faith
Common Organization
Distinctive Name; it categorizes as a religious denomination.
Article 26 also includes the word "section" making it inclusive of a sect or
Sub-sect of a religion. Thus, AryaSamaj will be a religious denomination for the
purposes of this article even though it is not a religion in itself.
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LAW OF CONSTITUTlOi~
\.(1
The term religious denomination in Article 26 is different from that . J
found in Article 30 which includes religious and lingual minorities. The extent of ~l
the denomination is immaterial to exercise the protection under Article 26.
RIGHTS GUARANTEED UNDER ARTICLE 26: ~;
V
.....
• F
13. Right to life. (Article 21).
~
Ans: The right to life and liberty as envisaged under Article 21 of the Consti
is meaningless unless it encompasses within its sphere individual dignity.
21 weaves a string of an endless yam.
'Everyone has the right to life, liberty and the security of person.' The right to
is undoubtedly the most fundamental of all rights. Article 21 applies to
persons. The right is available to every person, citizen or alien. Thus,
foreigner can claim this right.
The fundamental right to life and personal liberty which has
inexhaustible source of many other rights and mentioned under the
subheads
Right to life: The Right to life under Article 21 means a life of dignity to live
proper and healthy environment.
The maintenance of various things like:
Health
• Proper sanitation system, and
,.
" II\W nrc In~I<;TITIIT'Of\'
" • Right to Legal Aid: In the case of Khatri vs. the State of Bihar, the Supreme
Court held that the trial court is under the obligation to inform the accused of
his right to free legal aid.
• Right to speedy trial: The Indian Judiciary in the case of HussianaraKhatoon
vs. the State of Bihar, it was held that the right to speedy trial is an inalienable
right under Article 21 of the Indian Constitution.
• Right to compensation: In the case of Rudul Shah vs. the State of Bihar, the
• petitioner was kept in jail for 14 years even after his acquittal and he was
awarde 35000 rupees as compensation .
• • Right to Privacy: In the recent and the most debated case of Justice K.S.
Puttuswamy (Retd.) vs. Union of India and Other, the Supreme Court's 9
judges constitutional bench held privacy to be a fundamental right under the
Constitution of India.
• Right to die with dignity: Supreme Court of India held in the case
of Common Cause vs. Union of India that right to die with dignity IS a
fundamental right.
• Right to choose a life partner: Every citizen is free to choose his/ her
partner.
The right to life and liberty as envisaged under Article 21 of the Constitution is
meaningless unless it encompasses within its sphere individual dignity. Article
21 weaves a string of an endless yam.
14.Doctrine of severability
Ans: Doctrine of severability is also known as the doctrine of seperability. The
inconsistent part of provision may be void on the account of repugnancy or
inconsistency with any fundamental rights and only to the provision of the law in
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16\..1
15 l_;""vv ut' Cui~STiTUTION
question comes into the court for the purpose of deciding whether such law shall c~c
be treated as void, and not the entire statute. in~i
In this doctrine, if there arises a situation where a good and the had statut
provisions are merged by using the word 'and' or 'or' and where the enforcement tOVr
of good provision does not be dependent on the enforcement of bad provision, then. contei
two provisions are severable and the good provision would be upheld and declared, V
Valid. On the other hand, where a provision is in the condition that it can be 15. noc
interpreted in hoth legal and illegal way and such provision are entangled in such a A~
way that they are inseparable, then this doctrine cannot he applied and the only vio1qt
option len with that law makers are to declare such provision void as whole. un~f
Evolution of the Doctrine: . dOL:'
The doctrine of severability origins its term from the law of Contracts, where this
doctrine was enumerated as 'if part of the contract is held to be illegal or otherwise thVl
non- enforceable, the remainder of the contract still applies'. The doctrine of in so 1
severability can be said to be a modified form, as the former definition in contrad of\Jc
is not an absolute one. restric
Doctrine of severability is understood in Inc!ia by analyzing Article 13of su~(
the Indian constitution. Article 13 declares to struck down any laws which are the~(
inconsistent with Fundamental rights enumerated in Part III. Article 13 clause (I) parro
and (2) thus incorporated the applicability of severability in India. Both the c Rt\..;V
deal on how to severe any provision to the extent which is inconsistent with Bhik~
Fundamental Rights and the severing the state laws which are in contravention to '-':
the fundamental rights to be treated as void. The ·doctrine of severability was 1947 :
discussed in the case R.M.D.C .v. Union of India, where three rules regarding bU~H
severability is determined and the legislative intent regarding the doctrine
thoroughly examined. i~~
The intention of the legislature is to determine whether the invalid H~~
of the provision can be severed (separated) from the valid part or not. If the Amen
and invalid part are entwined in an inseparable manner then the invalidity of TV
portion of the statute will result in the whole invalidation of the Act and shado
such situation arises, the invalid portion is separated from the valid portion. \.
Landmark Judgements
D.S Nakara .v. Union Of India
It was held by the supreme court that an Act could be considered valid,
though the invalid provisions are severed and lays in the act in a separable
KihotoHollohan vs Zachillhu
It is also famously known as the defection case, where paragraph 7
tenth schedule, which was inserted by 52nd amendment Act, 1985 was
be unconstitutional as it had violated the provisions under Article 368(2).
court applied doctrine of severability by only severing the 7th paragraph of
schedule, thus rendering rest of the paragraphs valid.
LAW OF CONSTITUTION
15.Doctrine of Eclipse.
Ans: The Doctrine of Eclipse is based on the Principle that a law which
violates Fundamental Rights is not nullity or void initio but becomes on Iy
unenforceable. It is overshadowed by the Fundamental Rights and remains
dormant, but it is not dead.
According to Article 13(1) of the Indian Constitution. all laws in force in
the territory of India immediately before the commencement of this Constitution,
in so far as they are inconsistent with the provisions of this Part. shall, to the extent
of such inconsistency, be void. Such laws are not dead they come alive if the
restrictions posed by the fundamental rights of the constitution are removed. Also,
such eclipsed laws are operative for cases that arose before the commencement of
the Constitution. Hence, the Current Fundamental Rights eclipse the Contravening
part of those laws, rendering that part of the law as dormant.
Relevant Case Law -
Bhika.iiNarain Vs State of Madhya Pradesh
In this case provision ofC.P. and Berar Motor vehicles Amendment Act,
. 1947 authorized the State Government to make up the entire motor transport
business in the province to the exclusion of motor transport operators. This
provision, though valid when enacted, became void on the becoming into force of
the Constitution in 1950 as they violated Article 19 (1) (G) of the Constitution.
However, 1951, clause (6) of Article 19 was amended by the constitution first
Amendment Act, as so to authorize the Government to monopolies any business.
The Supreme Court held that "the effect of the amendment was to remove the
shadow and to make the impugned Act free from all blemish or infirmity".
It became enforceable against citizens as well as non-citizens after the
constitutional impediment was removed. This law was merely Eclipsed for the
time being by the fundamental rights. As soon as the eclipse is removed the law
begins to operate from the date of such removal.
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LAW OF CONSTITUTION
18 '-
16. Constituent Assembly }'>'ti
Ans: A constituent assembly or constitutional assembly is a body or assembly ch(
of popularly elected representatives which is assembled for the purpose of drafting
}'>\..!
or adopting a constitution or similar document. The constituent assembly is
\VI
entirely elected by popular vote.'that is, all constituent assemblies are
constitutional conventions. }'>\.rt
}'> T t
Constituent assembly is usually set up for its specific purpose, which
it carries out in a relatively short time, after which the assembly is dissolved. A ¥o
constituent assembly is a form of representative democracy. y "'
The Constituent Assembly or India was elected to write the Constitution of India,
yYt
and served as its first Parliament as an independent nation. It was set lip as a result \.i
of negotiations between the l~aders of the Indian independence movement and y TI
members of the British Cabinet Mission. The constituent assembly was elected \Jr
indirectly by the members of the Provincial legislative assembly, which existed y It
under the British Raj. It first met on December 9, 1946, in Delhi. On August 15, '-'
1947, India became an independent nation, and the Constituent Assembly started
functioning as India's Parliament. B. R. Ambedkar drafted the Constitution of
India in conjunction with the requisite deliberations and debates in the Constituent
Assembly. The Assembly approved the Constitution on November 26, 1949
(celebrated as Constitution Day), and it took effect on January 26, 1950 - a day y\..c
now commemorated as Republic Day in India. Once the Constitution took effect, 1
en hr.i
the Constituent Assembly became the Provisional Parliament of India. ofM:
thet]
17. Right to Education ( RTE ) chiM'
Ans: Right to Education Act (RTE), is an Act of the Parliament of India enacted
4w
on 4th August 2009, which describes the modalities of the importance of free and to ext
compulsory education for children between 6 and 14 in India under Article 21a of rar\t
the Indian Constitution.
The RTE Act provides the following for the rights of children
mae
y To free and compulsory education till completion of elementary education ina 18.;\ ~t
neighborhood school. An)!'
y It clarifies that 'compulsory education' means obligation of the appropriate
government to provide free elementary education and ensure compulsory
.._.
admission, attendance and completion of elementary education to every
in the six to fourteen age group. t.".
y 'Free' means that no child shall be liable to pay any kind of fee or charges ~
expenses which may prevent him or her from pursuing and completing 4.
elementary education. \.I
y It makes provisions for a non-admitted child to be admitted to an age
appropriate class.
y It specifies the duties and responsibilities of appropriate Governments,
authority and parents in providing free and compulsory education, and
of financial and other responsibilities between the Central and State
Governments.
\.,
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• LAW OF CONSTITUTION
". It lays down the norms and standards relating inter alia to pupil teacher ratios
(PTRs), buildings and infrastructure, school-working days, teacher-working
hours.
". It also provides for prohibition of deployment of teachers for non-educational
work.
". It provides for appointment of appropriately trained teachers.
". It also prohibits all unrecOgnized schools from practice, and makes provisions
for no donation or capitation fees.
". No interview of the child or parent for admission.
". It also provides that no child shall be held back, expelled, or required to pass a
board examination unti I the completion of elementary education.
~ There is also a provision for special training of school drop-outs to bring them
up to par with students of the same age
~ It prohibits
• Physical punishl11ent and mental harassment;
• Screening procedures for admission of children;
• Capitation fcc:
• Private tuition by teachers and
• Running of schools without recognition.
~ It provides for develoPl11ent of curriculum in consonance with the values
enshrined in the Constitution. and which would ensure the all-round development
of the child, building on the child's knowledge, potentiality and talent and making
the child free of fear, trauma and anxiety through a system of child friendly and
child centered learning.
A critical development in 2011 has been the decision taken in principle
to extend the right to education till Class X (age 16) and into the preschool age
range. The CABE committee is in the process of looking into the implications of
•
ain ina
making these changes.
~.
}
for freedom;
3. To uphold and protect the sovereignty, unity and integrity of India;
4. To defend the country and render national service when called upon to do
so;
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19
7.
LAW OF CONSTITUTION
rivers and wild life. and to have compassion for living creatures;
8. To develop the scientific temper, humanism and the spirit of inquiry and
reform
9. To safeguard public property and to abjure violence; Cons1
10. To strive towards excellence in all spheres of individual and collective ciM
activity so that the nation constantly rises to higher levels of endeavour and
achievement.
SA.t
11. To provide opportunities for education by the parent the guardian. to his 1.V
child.
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".. LAVIJ OF CO")<;TITI ITIO")
Part -B Answers
•
.ctive
.urand
Constitution of India as we all know is a supreme law of the country and every
citizen of our country has to abide by the constitution.
Salient Features:
,e his 1. The Lengthiest Constitution of the World: The Indian Constitution is one of
• the lengthiest constitutions in the world and it. is also very detailed. There are
12 schedules and 395 articles in our Constitution .. The parent document for
• drafting the Indian Constitution was the Government of India Act 1935, and
that document itself was very lengthy.
• about 90 articles and more than 100 amendments have been made.
•.. 3. A unique blend of rigidity and flexibility: The Indian Constitution is neither
rigid nor flexible; this is also one of the reasons for its length. The Indian
Constitution is not very difficult to amend, as the Constitution of The U.S.A. It
•• has gone through 103 amendments so far .Thus the Indian Constitution IS a
unique blend of rigidity and flexibility.
• followed in our country i.e., two houses, LokSabha and RajyaSabha. The
Unicameral legislature system is followed in countries like Norway.
• 5. Taken from various sources :The Indian Constitution was framed from
• multiple sources including the 1935 Government of India Act and Other
Countries Constitutions likethe Constitutions of Canada, Australia, Germany,
•• 6.Federal System with Unitary Features: The Indian Constitution includes all
the federal characteristics of governance such as dual government system
,. (center and state), and unitary features such as a strong centre, all India
services common to the center and the states.
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21 LAW OF CONSTITUTION
1~
7. Independent Judiciary :It is the duty of all levels of courts in India to enforce
'" t
both central and state laws. Not only is the judiciary system well fully \.f
(.
integrated in India, but because of the following provisions it is also
independent. \.i"
Con
a. Appointment of judges of Supreme Court and High Courts by collegium ~.
system.
b. Removal of judges in Pari iarnent through an impeachment procedure that is
very difficult to pass. 2o.M
c. Supreme Court judges salaries. pensions. and allowances are charged to
~~
India's .Consolidated Fund.
d.Power to punish for self- disregard. l~
legis
e. Ban on judges practice after retirement. .. etc
8. Directive Principles of State Policy: In Part IV of the Constitution. the ttV
Directive Principles of State Policies (DPSPs) aims to make India a welfare • 1
'-'e
state. They are not enforceable for their violation by the courts. They are only
r
fundamental guidelines to the country's governance.
9. Fundamental Rights: Part III of the Indian Constitution deals w
."-'1
1
fundamental rights.Article 14 of the Indian Constitution guarantees the right
equality. It is the duty of the state not to deny any person equality before the • '-'J
eyes of the law and to provide them equal protection of laws within
territory of India.
10. Adult suffrage: Any adult who is 18 years of age eligible to vote should
be discriminated on any basis like gender, caste and religion. The accepted
age for voting is 18 years of age. There are also certain disqualifications
s
provided like:
• Non-residence; • '-'J
s
• Unsound mind; .\.;J
• Criminals who are indulged in the corrupt and illegal practice. \
11. Single Citizenship: There is no separate citizenship for the States and .'-1
Centre like in various federal countries like the U.S.A. There is si
citizenship provided to our citizens.
12. Judicial Review: The court that is authorized with the power of .
review can invalidate any act that is violative of the various basic
the Constitution. Article 32 and Article 136 and Article 226 and Article
the Indian Constitution are related to the Judicial review in the
Court and in the High Court respectively.
13. Secularism: Secularism promotes the development and unity of
religions. The term "Secular" was added by the 42nd amendment
Preamble. In India all citizens are free to follow, profess, propagate
religion they like.
14. Sovereignty: The term Sovereignty was incorporated in the
provide supreme power to the Government. Sovereignty is an essential
of every State.
15. Socialism: The term socialism is used to lessen the inequalities in i
status among the people and to provide equality of opportunity and faci
J8
I AW OF (ONSTITtJTION
the good will of citizen to abide these provisions. According to the constitutional Co~rr
expert D.D.Basu, the constitution does not make any provision to enforce these th a(;11
duties automatically or any sanction to prevent the violation of these duties of the Landr
citizen. \.;0-
However, it is expected that if a law is enacted by the legislature to enforce court (;
these provisions, it shall not be declared unconstitutional on the ground of its als~\
inconsistency with the provisions of Article 14 and that of 19. According to him. consut
these provisions would act as warning to all those who does indulge in not paying stn~l
due regard to the constitution and destroy ing public property. The Supreme COUrt \.,t
may issue such warning to citizen to take these provisions seriously. Moreover, 23. DISCI
there is no legal sanction against their violation. basic\...-f
The legislature may also enact laws to enforce these duties. However, the ADS: r
•
sltion
normal, legal or political, individual or pluralistic. In monarchies, sovereignty was
vested in the person of monarchs. But in republican form of governments, which
mostly prevail in the contemporary world, sovereignty is shifted to the elected
representatives of the people .
• the Socialist: The term socialist used here refers to democratic socialism, It means that
: actiors
(since wealth is generated socially) wealth should be shared equally by society and
eious should not be concentrated in the hands of few, and that the government should
i by the
regulate the ownership of land and industry to reduce socio-economic inequalities .
• and
Secular: In India being a secularstate, there is no state religion. All the citizens of
India are allowed to profess, practice and propagate the religion whatever religion
they wish to follow.
Democratic: In democratic government the people of India elect their
governments by a system of universal adult franchise. Every citizen of India 18
years of age or older and not otherwise debarred by law is entitled to vote.
Democracy is popularly known as "By the people, for the people, of the people".
Republic: A democratic republic is an entity in which the head of state is elected,
directly or indirectly, for a fixed tenure and not a hereditary monarch .. Thus, India
has a President who is elected and has a fixed term of office.
Justice: Justice stands for rule of law, absence of arbitrariness and a system of
equal rights, freedom and opportunities for all people in a society. Liberty I
Freedom: That is Indian citizens are given freedom to think, express, etc However,
liberty does not mean freedom to do anything, and it must be exercised within the
constitutional limits.
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26 \.r
LAW OF CONS IIIU IIUN
4. ~,
Fraternity; This refers to a feeling of brotherhood and a sense of belonging to
nation.The Preamble declares that fraternity has to assure two things-the digni~ tc~
Bicame
ofthe individual and the unity and integrity of the nation.
1.~i
Amendability: The Preamble can be subjected to Constitutional Amendments
2. The
exercised under article 368, however, the basic structure cannot be altered.
Therefore. it is considered as the heart and soul of the Constitution. '--'
3. The
The objectives in the preamble are just a part of basic structure of the
4.~
constitution and nothing more than that. So preamble cannot be amended so as to
!;,PI')
destroy. the objectives.
.
~
Case Laws:
• Kcshavananda Bharaghi Vs State of Kerala.
• Indira Nehru Gandhi Vs Raja Narayan.
5. T\i:
• Beru Bari Union Case
\."i
Bicc
Franchise
1. This Act introduced direct elections in India for the first time.
Reorganization
1. Sindh was carved out of Bombay Presidency.
2. Bihar and Orissa were split.
3. Burma was severed off from India.
4. Aden was also separated from India and made into a Crown colony.
Other points
1. The British Parliament retained its supremacy over the Indian legislatures both
provincial and federal.
2. A Federal Railway Authority was set up to control Indian railways.
3. The act provided for the establishment of Reserve Bank of India.
4. The Act also provided for the establishment of federal, provincial and joint
Public Service Commissions.
5. The Act was a milestone in the development of a responsible constitutional
government in India.
6. The Government of India Act 1935 was replaced by the Constitution of India
after independence.
7. The Indian leaders were not enthusiastic about the Act since despite granting
provincial autonomy the governors and the viceroy had considerable 'special
POWers'.
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LAW 01- CONSTITUTION
8. Separate communal electorates were a measure through which the British cr' .
wanted to ensure the Congress Party could never rule on its own. It was also a Way · \Jl
to keep the people divided cor
Conclusion: This act ended the system of dyarchy introduced by GOI Act 19H • \.It
and provided for establishment of aFederation of India to be made up of up
provinces of British India and some or all of the Princely states. However, the \.oj
federation never came into being as the required number of princely states did not • Jt a
join it. MeWh
Ans: The Government of India Act 1919 was an act of the British Parliament that • Qt
hel-
sought to increase the participation of Indians in the administration of their
country. The act was based on the recommendations of a report by Edwin • VI
cor
Montagu, the then Secretary of State for India, and Lord Chelmsford, India
• \.t>}
Viceroy between 1916 and 1921. Hence the constitutional reforms set forth by this Limtt
act are known as Montagu-Chelmsford reforms or Montford reforms.
Principle Features of Government of India Act 1919
.~
• Executive:
• Dyarchy was introduced, i.e., there were two classes of administrators _
:~ 0
.~
1
Ans: The Right to Equality is one of the Fundamental Rights enshrined in the
Constitution of India. It is very important to understand what this right entails and
includes.
Equality before the law (Article 14)
• This Article states that all citizens will be treated equally before the law.
• The law of the country protects everybody equally.
• Under the same circumstances, the law will treat people in the same manner.
Prohibition of discrimination (Article 15)
• No citizen shall be discriminated on grounds only of race, religion, caste,
place of birth, sex or any of them, be subject to any restriction or condition
with respect to:
• Access to public places
• Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant
for the general public.
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L':J LAW OF CON~III U liON
..
and punished inasmuch as his gold has been confiscated by the customs
authorities. By rejecting his plea, the court held that the proceedings of the Sea
Customs Authorities cannot be considered as a judicial proceedings because it is
not a court or judicial tribunal and the judgment of confiscation or the increased
lIout rate of duty or penalty under the provisions of the Sea Customs Act does not
constitute a judgment or order of a court or judicial tribunal necessary for the
purpose of supporting a plea of double jeopardy. The court also held that the
proceedings conducted before the sea customs authorities were, therefore, not
'prosecution' and the confiscation of gold is not punishment inflicted by a 'court'
or 'judicial tribunal'. The appellant, therefore, cannot be said to have been
prosecuted and punished for the same offence with which he was charged before
the Chief Presidency Magistrate Court.
" the best example of an unwritten constitution. It is not in one document, but can be
found in various sources, such as statutes, conventions and judicial decisions.
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31 32"-'
LA'./: cr CmJSTITUTlmJ
,.ed decisions already taken in the Assembly and including all matters which have to
Hen in t~ be provided in such a Constitution, and to submit to the Assembly for
consideration the text of the draft constitution as revised by the committee ... '
~d bYa
The Drafting Committee had seven members: AlladiKrishnaswamiAyyar, N.
~ as Gopalaswami; B.R. Ambedkar, K.M Munshi, Mohammad Saadulla, B.L. Mitter
and D.P. Khaitan. At its first meeting on 30th August 1947, the Drafting
Committee elected B.R Ambedkar as its Chairman.
Towards the end of October 1947, the Drafting Committee began to scrutinize the
Draft Constitution prepared by the B.N Rau, the Constitutional Advisor. It made
various changes and submitted the Draft Constitution to the President of the
Constituent Assembly on 21 February 1948.
The Drafting Committee and its members were very influential in Indian
constitution-making during the Committee stages and the deliberations of the
Constituent Assembly. Majority of the dehates in Constituent Assembly revolved
around the Draft Constitution( s) prepared by the Drafting Committee. Out of 166
sittings of the Constituent Assembly. 114 were spent debating the Draft
Constitution(s ).
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LAW OF CONSTITUTION
• 33.~:
It is said that the makers took a long time in framing the constitution.
However, keeping in mind the complexity and the peculiarities of the diverse A'ii
and large Indian nation, this can be understood.
• The constituent assembly was not a sovereign body since it was created by the \;
th
British. However, it worked as a fully independent and sovereign body.
• The language of the constitution was criticised for being literary and
complicated.
."'"
• The assembly was dominated by the Congress Party. But the party dominated
the provincial assemblies and this was natural. Moreover, it was a
heterogeneous party with members from almost all sections of Indian society.
• It was alleged that the assembly .had Hindu dominance. This was again \.;
because of proportional representation from communities. • 1
'rt.
32. What was the basic idea of Socialism? And how did socialism affect the -_'
economy? \.".
c(
Ans: The word socialist was added to the Preamble of the Indian Constitution by \,.,
the 42nd amendment act of 1976. during the Emergency. It implies social and
economic equality. The system of socialism promotes equality among people and \..r
ensures the welfare of people. The term socialism is used to lessen the inequalities Sf
....,.
in income and status among the people and to provide equality of opportunity and
facilities". • ,
The concept of Socialism expels capitalism which is considered a threat to the ~
economy. An economic theory or system in which the means of production, "I
distribution, and exchange are owned by the community collectively, usually 'rf
r-.,
through the state. It is characterized by production for use rather than profit, by
equality of individual wealth, by the absence of competitive economic activity. 'tf
In a purely socialist system, all legal production and distribution ·V
decisions are made by the government, and individuals rely on the state d,
everything from food to healthcare. The government determines the output \pi
pricing levels of these goods and services. c
strategies of socialization \.f
Two main strategies of socialization. tr
• The first seeks to socialize the economy byNationalizing major industries, • 'f
financial institutions ( Banks) etc
\.I
• The second seeks the same end by radically decentralizing and p
econorruc power. \_,
Measures taken by the Indian Government to remove economic inequ ir
among the people: ~
1. Giving reservations for BC , SC and ST people p
2. Distributing government lands for the poor people \.I
3. Allotting houses for the white ration card holders (\
4. Introducing Land Ceiling Act and taking away excess land from the I '-'
and distributing it among the poor etc.
Socialists want citizens to be highly involved in democratic processes; and '-
want citizens to have rough equal opportunities to influence these sses.
JB
LAW OF CONSTITUTION
fIt powers of Executive, Legislature and JUdiciary. The federal State derives its
).•
tution
existence from the Constitution. In the federal system, the Constitution is
considered the supreme law of the country. All institutions functions under the
control ofthe Constitution.
According to the Prof. K.C. Where supremacy of the Constitution for the
federal government is very much essential and it is also necessary for its
smooth working that it must be documented.
'.t.
ribution
•
Constitution the Central and State governments will get clear understanding of
their rights.
Rigid Constitution: Generally the written Constitution is rigid. However, this
does not mean that the Constitution cannot be amended. The amending
•
put and procedure is quite complicated and difficult. The power to amend the
Constitution should not remain exclusively with either Central government or
1.
iA
• The authority of Judiciary: There is a division of powers between Central
and State governments in the Federal form of Constitution. The division of
powers between the two is done by a written Constitution. Therefore, it is
possible that different governments can interpret provisions of the Constitution
in their favour. In such a situation, it is necessary to have an institution which
"..
can properly interpret the Constitution in fair and free manner. As regards
provisions of the Constitution, judiciary is empowered to give interpret the
Constitution. The interpretation of the Constitution by the judiciary is binding
on all the authorities.
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3_j LAW OF CONSrrTUTION
~--------------------------------------~~~----------------
\.I
34. Write about Secularislll. Explain the scope and nature of the right to freedoll)
of religion in India with the help of decided cases. 35.\..1
Am
Ans. The constitution of India recognizes the fact, how important religion is in the l\..Ii
life of people of India and hence, provides for the right to freedom of religion under gov
Articles 25 to Article 28. t~:
The Constitution of India envisages a secular model and provides that every person \::e
has the right and freedom to choose and practice his or her religion. Secularism
means developing, understanding and respecting different religions. !\.,;'
In 1948, during the constituent assembly debate, a demand was made by IS nr
the KT Shah to include the word 'Secular' in the Preamble to the Constitution. The
members of the assembly though agreed to the secular nature of the constitution
but it was not incorporated in the Preamble. Later. in 1976 the Indira Gandhi
government enacted the 12nd Amendment Act and the word' Secular' was added
to the Preamble. The 42nd Amendment Act also known as the 'Mini Constitution', t~t
is the most comprehensive amendment to the Constitution. Tt;
Constitutional PrOVisions relating to Right of Religion Prov
• Article 25: Freedom of conscience and free profession, practice and propagation g\J=
of religion. f
•.w.the
,.nder
Ans: The Government of India Act 1919 was an Act of the Parliament of the
United Kingdom. It was passed to expand participation of Indians in the
government of India. The Act embodied the reforms recommended in the report of
•
.m
y person
the Secretary of State for India, Edwin Montagu. and theViceroy, Lord
Chelmsford.
Act of 1909 provided a dual form ofgovcrnment (a "diarchy") for the major
provinces.Diarchy means a dual set of governments: one is accountable, the other
.eby· is not accountable. Subjects of the provincial government were divided into two
groups.
uion. The
i.ion • One group was reserved, and
d.w. • The other group was transferred.
s9dded The reserved subjects were controlled by the British Governor of the province;
i_tion', the transferred subjects were given to the Indian ministers of the province.
The "transferred list". were given to Government oflllinisters answerable to the
Provincial Council. The 'transferred list' included agriculture. supervision of local
government, health, and education.
At the same time, all other areas of government (the 'reserved list') remained
under the control of the Viceroy. The 'reserved list' included defence (the military),
foreign affairs, and communications.Diarchy means a dual set of governments; one
is accountable, the other is not accountable. Subjects of the provincial government
were divided into two groups. One group was reserved, and the other group was
transferred. The reserved subjects were controlled by the British Governor of the
province; the transferred subjects were given to the Indian ministers of the
province.
• self- incrimination. This prevents the government from forcing a person to testify
against himself. Although the founders were particularly concerned about persons
being tortured into incriminating themselves, the courts have extended the
privilege to any forced testimony.
The result of the privilege against self- incrimination is that the state must
prove its case without the help of the defendant. If the defendant stands silent, he
wins unless the state can produce sufficient evidence of his guilt. At trial, the
defendant can refuse to take the stand and testify, and the prosecutor may not
Commenton the defendant's silence; that is, no remarks about why the defendant
will not take the stand and explain what really happened.
The privilege against self-incrimination also applies to the investigation of
a case. A defendant can refuse to talk to the police, but cannot refuse to appear
before the grand jury. The defendant can refuse to answer questions that he
believes wiII incriminate him, which is called "taking the Fifth." The privilege
applies to any crime, state or federal, so the defendant can take the Fifth when he
JB SERIES
:31
LAW OF CONSTIfU liON
3'r'
is being investigated by the state because he is concerned about implicating ~J
himself for a federal crime. UJ
Witnesses, however, who are not defendants or potential defendants,
cannot refuse to testify, and may even be imprisoned for contempt of court if they \.II
1:
refuse. In some circumstances the prosecution can get around the defendant's
privilege against self- incrimination by offering the defendant immunity for the \.I
Vu
crimes he might mention in testifying. Once immunized against the possibility of
prosecution. the witness can no longer refuse to testifY by invoking the privilege '-T)'
J1r
against self- incrimination. \-.i
The privilege against self-incrimination is limited to testimony.
Defendants can he forced to give hair samples, blood samples. and other bodily 38.\.;1
fluids. They can be forced to produce writing samples, and in some cases to give Ans:
other information such as combinations to safes or the location of bank tlVe
These are governed by the rules on searches and seizures, rather than advo.
governing self-incrimination. A\ptl
if rha
37. Explain our fundamental Rights. ~
~~
Ans: Initially and Originally there were about seven fundamental rights but after
the abolition of Zamindari Act 1950, there number reduced to about six which are
as follows:
}t
1. Right to equality (Article 14-18) which entails in itself that everyone stands \lIi;
)A
equal before the law and equal treatment should be given to everyone
implying a complete prohibition of discrimination founded on the grounds
".>\.,'
)L
race, caste, creed, or gender.
2. Right to Freedom (Article 19-22): Each individual has the right to freedom
\.tl
) P,
form an association, to peacefully assemble, to practice any profession, and
carry on any trade, occupation, or business. Contains one of the most
'-ril
significant right i.e. Right to Life and Liberty (Article 21). Protection and
rights to an accused in respect to arrest and detention for conviction of any
offense under the penal code of the country.
3. Right against Exploitation (Article 23 and 24): This Article entails in
themselves important and rights such as the.prohibition of Child Labor or
Forced Labor and Human trafficking.
4. Right to Freedom of Religion (Article 25- Article 28): This specific
the Constitution is of utmost importance in a country like India where
a huge diversity of religion; this right provides the citizens with the
follow and practice any religion and most importantly grants
conscience to an Individual. The rights under this head also
provide a clause concerning paying taxes for religious purposes.
5. Cultural and Educational Rights (Article 29 and Article 30): These
entailed in Part III provides protection to different languages and varieties
culture present in India and additionally protects the rights and culture of
minorities, right to minorities to establish and administer educational
Institution, etc.
LAW OF CONSTITUTION
What is meant by Free Legal Aid? Is Free Legal Aid is a fundamental right?
Ans: Legal Aid essentially refers to the process of providing free legal services to
those sections of society which are not self sustainable in obtaining services of an
advocate in order to conduct a case in front of court, hence denying them justice.
A person shall be entitled to Free Legal Aid, Legal Advice or free Legal Services
if that person is:
} A member of Scheduled Caste or Scheduled Tribe
} A victim of trafficking in human beings or beggar
} Woman or a child
} A mentally ill or otherwise disabled person;
} Victim of mass disaster ethnic violence, caste atrocity, flood, drought,
earthquake or industrial disaster;
} An Industrial workman .
} Person in custody
} Legal aid can be provided to a person for a case which includes a suit or any
proceeding before a court.
} Person to whom legal aid is provided is not required to pay anything on the
litigation.
Legal services to be provided may include anyone or more of the following:
• Payment of court-fees, process fees and all other charges payable or incurred
in connection with any legal proceedings;
• Charges for drafting, preparing and filling of any legal proceedings arid
representation by a legal practitioner in legal proceedings;
• Cost of obtaining and supply of certified cop les of judgments, order and other
documents in legal proceedings;
• Cost of preparation of paper book (including paper, printing and translation of
documents) in legal proceedings and expenses incidental thereto.
Availability of legal services:
• In every State and District Legal Services Authorities have been established
• Taluka or mandaI legal services committees have been constituted at the
Talukalmandal.
• The National Legal Services Authority is the Central Authority which
implements the various schemes such as lok adalats for disposing of pending
matters, legal literacy and awareness campaigns, legal aid facilities in jails etc.
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LAW OF COf'JSI rru iIG;~
• For availing legal services one is required to approach the High Court or the
District Courts which have constituted Legal Services Authorities for }VIi
providing legal services. are I
g.we
• A.M.Hoskot V. State of Maharashtra AIR 1978 SC 1548.
• HussainaraKhatoon V. Home Secretary, State of Bihar, AIR 1979 SC ~
1322.
1'J "_ J
Article 39-A of the Constitution provides for equal justice and free legal aid. On t~(
several occasions, like in the cases mentioned above, it has been held by the
Supreme Court that legal aid and speedy trial are to treated as a part of the \.J
40. Prot,
fundamental rights under Article 21 of the Constitution. It is enforceable by the
V
Courts and the State is under a duty to provide legal aid and legal assistance to a Ans. )
poor and needy person at its own expense. an,,1
Ex
39. What is Reasonable Classification? How does it protect equality? ma~l,
ADs: Article 13 of the Indian constitution forbids class legislation but it does not sens-.
prohibit the reasonable classification of objects, persons, and transactions for the Fo~
purpose so as to achieve specific ends by the parliament. paV
Such classification should not be artificial, arbitrary or evasive and it must offenc
rest on substantial distinction which is real. It must bear a reasonable and just as 1\.1
relation to the sought object which is to be achieved by the legislation. Reasonable laws e
classification as laid by the Indian Supreme Court has two conditions as in the
of SaurabhChaudhari v Union Of India, are-
• The classification must be founded on intelligible differentia, di . JJ:;Lll"'JJJUjij
grouped together persons or groups from the left out ones of the group.
• The differential must be in a rational relation 'with the sought object that is
~
Ex ).f1
und~
convic
be achieved by the act. The object of the act and differential on the basis chaV
classification are two separate things. It is essential that there must be The ail
presence of nexus (connection) between the object of the act and the basis ., Proht
classification. When a reasonable basis is not present for classification
·t~
such classification made by the legislature must be declared discriminatory.
The age at which a person would be deemed competent between themselves
.~
be fixed by the legislature but competency cannot be claimed. A contract
.\.1
COl
dependent on the color of hair cannot be made, and such a classification
be arbitrary. ~
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LAW OF CONSi i j uTiOr~
50. Explain the constitutional provisions relating to formation of new states in unk'r
Union of India. doU'
centra
Ans. The author of the "Constitution of India" does not believe that unlike modern
Indians, the states, regions and mandals of India are - static, unchanging and Un,--,
permanent. They had the maturity to accept that states would evolve and change, Strll[
and therefore made provisions for creation of new states in Indian Union. ThM
Constitution of India fedU
Under Article 3, a new state may be formed or established in the follow ing \\ ays: Secon
I. By separation of territory from any state or ThiV
residu,
2. By uniting two or more states or
ves~
3. By uniting any parts of states
2. St'l1
4. By uniting any territory to a part of any state
Unl~e
Parliament under this article can also increase or decrease the area of any Th~f:
state or alter the boundaries or change the name of any state. Article 3 deals with the state. ~
formation of a new state out if the territories of the exiting states. The power to form
3.S~
new states under article 3 (a) includes the power to form a new state or union
Usuall:
territory by uniting a part of any state or union territory to any other state or union
sepa~t
territory. the ('<-q
The constitution of India empowers the parliament to alter the territory or Cen~
names of the states without the consent. It can form new states and alter boundaries with(..,
or names of the existing states by a law passed by simple majority.
4. Flex
The conditions laid down for making of such a law must be followed. Itprovide that
The \.;.
• No Bill for the purpose of Article 3 shall be introduced in either House of federati
Parliament except on the recommendation of the President and unless, where the the I\.r
proposal contained in the Bill affects the area, boundaries or name of any of to in~i~
States, the Bill has been referred by the President to the Legislature of that State
5.N~
for expressing its views thereon within such period as may be specified in
The \.J
reference or within such further period as the President may allow and
Hence,
period so specified or allowed has expired.
fors~
• If the state legislature does not express its views within the time specified
extended, the parliament is not bound to accept or act upon the views of the
legislature. ~!~
Du~i\,
• Further, it is not necessary to make fresh reference to state legislature every
go mto
an amendment to the bill is proposed and accepted.
one '\_;
Thus, the article explains the flexibility of the Indian constitution by a
7. Singl
majority and by ordinary legislative process. Parliament may form a new
In spitre;
later boundaries of the existing states and thereby change political map of
system.
51. Explain the Unitary elements in the Indian Constitution. citize~
8.lnt\.,
Ans. Unitary Features of the Indian Constitution:-
The Ind
Unitary Features of constitution make a centralized government. It is a SUpreI\w
in which all powers held by the government belong to a single, central
LAW OF CONSTITIlTION
• federal angle. Firstly, the Union List contains more subjects than the State List.
Secondly. the more important subjects have been included in the Union List.
Thirdly, the Centre has overriding authority over the Concurrent List. Finally. the
• residuary powers have also been lett \\ ith the Centre, while in the USA, they are
vestedin the states. Thus, the Constitution has made the Centre very strong.
1.
to initiate an amendment to the Constitution lies only with the Centre.
·tmt State S.No Equality of State Representation:-
in the The states are given representation in the Rajya Sabha on the basis of population.
v and the
•
e_afiedor
~e state
Hence, the membership varies from 1 to 31. This principle is regarded as a safeguard
for smaller states.
6. Emergency Provisions:-
. The Constitution stipulates three types of emergencies-national, state and financial.
:fry time
During an emergency, the Central government: becomes all powerful and the states
•
go into the total control of the Centre. It converts the federal structure into a unitary
one without a formal amendment of the Constitution.
a simple
7. Single Citizenship:-
.tateor
In spite of a dual polity, the Constitution of India, like that of Canada, adopted the
•of India.
system of single citizenship. There is only Indian Citizenship and no separate state
•
citizenship.
8. Integrated Judiciary:-
The Indian Constitution has established an integrated judicial system with the
Supreme Court at the top and the state high courts below it. This single system of
courts enforces both the Central laws as well as the state laws ..
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43
LAW OF CONSII ru liON
Central government but also those or the states. But, his appointment and removal is Import
done by the president without consulting the states. Exa\.llfJ
11. Parliament's Authority Over State List:- day. N(
Even in the limited sphere of authority allotted to them, the states do not have the~l
exclusive control. The Parliament is empowered to legislate on any subject of the
that pcn
State List if Rajya Sabha passes a resolution to that effect in the national interest. '-"
12. Appointment of Governor:- thi?~
opimon
The governor, who is the head of the state. is appointed by the President. He holds
Oplll~l
office during the pleasure of the President. lie also acts as an agent of the Centre.
Union_!
13. Integrated Election Machinery:- FactW'
The Election Commission conducts elections not only to the Central legislature the (\+1i
also to the state legislatures. But, this body is constituted by the President and not~1
states have no say in this matter. The position is same with regard to the removal of ~ud,-"
its members as well.. Impose.
14. Veto Over State Bills:- (2)~
The governor is empowered to reserve certain types of bills passed by the state a flag i~
legislature for the consideration of the President. The President can withhold can ~
assent to such bills not only in the first instance but also in the second . Constit
Thus, the President enjoys absolute veto (and not suspensive veto) over state bills. natidM\
\oJ
52. Explain the scope and nature of the freedom of speech and Elemel
pYIr\rl',~~IU'D,_
TheV
~.
guaranteed to Indian citizens.
Ans: Meaning of freedom of speech and expression 1. Thi
The right to express one's own ideas, thoughts and opinions freely through
printing, picture, gestures, spoken words or any other mode is the essence 2.~
freedom of speech and expression. It includes
• The expression of one's ideas through visible representations such as }\..,'
signs and other means of the communicable medium. 3. Thi
• The right to propagate one's views through print media or through
l\.t.
communication channel. ane
4.~
• The freedom of the press is also included in this category.
Free propagation of ideas is the necessary objective and this may be ~
through the press or any other platform. These two freedoms i.e., freedom of
~
and freedom of expression have their own respective qualifications.
•
'. Article 19 (1)( a) of the Indian constitution
I flW OF CONSTITUTION
• day. Now women are allowed to vote. How docs this happen? It happens because of
the right of free speech and expression. The right to free speech and expression ha~e
that power through which it can break any type of giant brick that comes in its way.
Free speech and expression not only includes the right to express what one
thinks but it also includes listening to others. When a person expresses his/her
opinion, it only carries the intrinsic value of that opinion and being silent on that
opinion is an injustice to the basic human rights.
•
imposed on citizens on hoisting the National Flag were not permissible under clause
(2) of Article 19 of the Indian Constitution. The court has also stated that displaying
a flag is an expression of pride as well as an expression of genuine enthusiasm and it
can only be restricted in accordance with what has been prescribed in the
.1tance.. Constitution, otherwise, the restriction would discourage the citizens or Indian
nationals from identifying with the flag of the country.
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4S
LAW OF CONSTITUTION
Ans. The nature of the Indian Constitution is Federal in nature but unitary the inqi
spirit. Central Government holds all the ability, however, a federal system di . havev
power between national and native types of government. existenc
Judicial review was adopted by the constitution of India from judicial review in •. ~J
United States. In the Indian constitution, judicial review is dealt with in Article l
The constitution is the supreme power of the nation, and governs all laws. ~~ ~
According to Article 13:
expand
._,'
1. All pre-constitutional laws, if they conflict wholly or in part
margv
constitution, shall have all conflicting provisions deemed ineffective until
amendment to the constitution ends the conflict; the law will again come Constn
force if it is compatible with the constitution as amended (the Doctrine '-'
right~:;
Eclipse).
2. Laws made after the adoption of the constitution must be compatible with' .. writs Tt
they will be deemed void ab initio. enfor\_,
3. In such situations, the Supreme Court (or a high court) determines if a law
befo~
conformity with the constitution. If such an interpretation is not possible
before t
of inconsistency (and where separation is possible), the provision
inconsistent with the constitution is considered void. In addition to motu'"
Articles 32, 226 and 227 provide the constitutional basis for judicial review.
have tm
\.,
Due to the adoption of the Thirty-eighth Amendment, the Supreme Impt!
was not allowed to preside over any laws adopted during a state of emergency
infringe fundamental rights under article 32 (the right to co lsht
remedies). The Forty-second Amendment widened Article 31C and added
368(4) and 368(5), stating that any law passed by Parliament could
LAW OF CONSTITUTION
To make justice more accessible to all citizens. the Supreme Court accepted
concept of Public Interest Litigation. PIL allowed people from all walks of life to
......
"'<l('n courts for enforcing their fundamental rights. Social welfare groups, social
and any public-spirited individual could also approach the courts by
'"''''
..''a.... Fo the broader interests of the public.
Standi:
Locus Standi means the legal capacity to sue or approach courts. Under both
inquisitorial and adversarial system, the parties approaching the courts must
been aggrieved or deprived of their rights. Thus, in any legal process, the
,.,•..,."..,..,
of locus standi is necessary.
PIL is different from the usual method of litigation. Locus standi is mandatory
. litigation, but a genuine interest or legitimate concern about the issues
public will act as a substitute for local standi in a PIL.
Locus standi is relaxed and made flexible in a Public Interest Litigation to
the scope of litigation by considering the rights and issues of the
~",,~ .......
',.....,...and underprivileged.
nal provisions:
The Supreme court can declare a law ultra vires if it is inconsistent with the
mentioned under part III. The Supreme court can issue orders or directions or
such as habeas corpus, certiorari, mandamus, prohibition,' quo warranto to
the rights of the citizens.
So, citizens can file a PIL before the Supreme Court under Article 32 or
the High Court under Article 226. The aggrieved party need not appear
the court to enforce the right under Article 32. The court has the power to suo
take cognizance in any matter and proceed with it. Moreover, the courts also
the power to treat any case with private interest as a publicly interesting case.
v State of Rajasthan
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47 48 \.
LAW u!- CONSTITUTION
\.,
This case played a crucial role in influencing the Parliament to enact
the Sexual Harassment at Workplace Ac, 2013. In this case. a social activist Was ~t
gang-raped for vengeance. All the accused were acquitted by the trial court. The • A
state applied for a petition to the Supreme court under the name Vishaka. The COUrt \.If
laid down the guidelines to follow in workplaces to prevent sexual harassment • TI
~c
Hussainara Khatoon v State of Bihar:
· ';1
This case dealt with the harsh conditions of prisons and under trial ec
prisoners. An advocate filed a petition under Article 32 describing the poor
condition of under trial prisoners and their inability to safeguard their personal
• \JJ
te
liberties. The court held that the right to a speedy trial is a part of the right to life \.6
under Article 21. '
~~
S.P Gupta v Union of India:
A group of lawyers filed a writ petition under Article 226 of the · c:dt
Constitution regarding the appointment of Judges. The petition was allowed as the
lawyers had a genuine interest in the disposal of cases and appointment of judges. U
af
This case opened up a new era for public interest litigation in India. PIL became
~
of the most effective tools to enforce public duty. which was earlier executed
illegally, thereby causing injury to society
~~
"
LAW OF COj~Srl i U IIUN
The State shall make its policies towards securing the following
objectives-
• All the men, women and citizens should have the right to an adequate means
of livelihood
•
Court
• The ownership and control of the people over any material resources under the
community should be distributed as it is for the common good of the public;
• There shall be no gender discrimination; both men and women should get
equal pay for equal work.
• The health and strength possessed by any worker, men and women, and the
tender age of children should not be abused and the citizens should not be
forced to enter and indulge into any occupation or profession which is not
suitable for their age or strength, not even out of any financial necessity or
economic backwardness
• Children must be given enough opportunities and facilities so that they
develop in a healthy manner and in such conditions where their freedom and
dignity, including the fact that their childhood and youth remain protected,
against any form of exploitation and against any sort or moral and material
abandonment.
Article 39A:
• Article 39A talks about Free Legal aid: It says that the State shall provide free
legal aid through any suitable legislation. So that it could ensure that the
opportunities for securing justice are not denied to any citizen because of
economic backwardness or any other kind of disabilities.
41:
Article 41 talks about Welfare Government. : It says that state shall make
some effective provisions for securing the right to work, etc. and in cases of
unemployment, old age, disablement or any other cases. State shall provide
public assistance.
42:
Article 42 talks about Securing just and humane work and maternity relief:
It says that state shall create some provisions so that the citizens get easy, just
and humane conditions for working. It shall also provide maternity relief for
the women.
JB SERIES
49 LAW Uf- Lui\i) iii U j i0j~
It says that the State shall look into the matter of raising the level of nutrition
and the standard of living of its people and it is the duty of the State to keep a
check on the improvement of public health.
Rf\,/I
56. Explain the Jurisdiction of Supreme Court under Article 32. India;
so'_' :
Ans. The Supreme Court has original, appellate and advisory jurisdiction. In
addition, Article 32 or the Constitution gives an extensive original jurisdiction to the
5~J
Supreme Court in regard to enforcement of Fundamental Rights. It is empowered
issue directions. orders or writs, including writs in the nature or habeas
mandamus, prohibition. quo warranto and certiorari to enforce them.
Pq
in~(
Constitutional remedies" is envisaged in our Indian Constitution under
•these
32 in Part Ill. Every citizen of India is guaranteed five fundamental rights, in ..covr
it's six but if any or the five fundamental rights are violated then the ..IrishF
fundamental right ensures people and protects other fundamental rights from
violated. concerning that, if any fundamental right is infringed, sixth fund '-'
right .i.e.. "Right to Constitutional Remedies" provides that people can enforce ThV
claim these rights in the Hon 'ble Supreme court. 1.
Remedies for enforcement of the rights conferred by Article 32 \.t.
This article contains four clauses:
1.People have the right to move the Court by appropriate proceedings for ~:
enforcement of their rights granted by part III of the Indian Constitution.
other words one can move to enforce his/her right to the apex court in
of proper proceedings is assured.
2. The Supreme Court can declare a law ultra vires if it is inconsistent with
rights mentioned under part III. The Supreme court can issue orders
directions or writs such as habeas corpus, certiorari, mandamus,
quo warranto to enforce the rights of the citizens.,
3. Parliament can empower any other court to issue directions, does
include Supreme Court & High court. M V Plyee rightly claims the first
clauses of article 32, together make fundamental rights under the
real and forming the Crowing part of the entire chapter.
4. The right to move to the Supreme Court shall not be suspended except
by the constitution like in case of emergency. In other words, the Pres
India may under article 358 make separate proclamation by which
remains suspended even the person's right is violated. This is
individual liberty is not more important than the interest of states.
Article 32 is remarked as the heart and soul of the Constitution. The rights
part III would be meaningless if they cannot be enforced.
The Supreme court can declare a law ultra vires if it is inconsistent
rights mentioned under part III. The Supreme court can issue orders or
writs such as habeas corpus, certiorari, mandamus, prohibition, quo
enforce the rights of the citizens.
•
• 50
lAW OF CONSTITUTION
•
Right to constitutional remedies works on the Doctrine "Ubi Jus fbi
Remedium" which means when there is right there is a remedy. As the people of
• Indiaguaranteed many rights so no one can violate these rights, then there must be
someremedies to protect them.
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5~
LAW Ut-lOi\J) ru iON
------------------------------------------~~~~~~~~----- II I
The Gandhian Principles: There are certain principles, based on the ideals B~
advocated by Mahatma Gandhi. These Principles are as follows:
(1) To organize village Panchayats.
«>
requlI
(2) To promote cottage industries in rural areas. de~n
(3) To prohibit intoxicating drinks and drugs that is injurious to health.
(4) To preserve and improve the breeds of the cattle and prohibit slaughter of
drCn
cows, calves and other 111 ileh and drought animals. IlIustJ
ccWt
Principles Relating to International Peace and Security: India should render grCTle
active cooperation tor world peace and security and for that the state shall endeavor detent
to: -
Th"'\
•
•
Promote international peace and security.
Maintain just and honorable relations between nations. wet
detame
• Foster respect tor international laws and treaty obligations.
thtVi
• Encourage settlements of international disputes by mutual agreement.
Tl(-y
Miscellaneous: The Directive Principles in this category call upon the state: _ is irre'g
• To secure for all Indians a uniform civil code. moV
• To protect historical monuments. By thi:
• To save environment from pollution and protect wild life. rest~J
• To make arrangements tor disbursement of free legal justice through u~ •• _ ...."
reqV
legislation.
-als By this Writ, the Court commands the person or authority who has detained or
• restrained another person to present such person before the Court. The Court
• requires the detaining person to provide the grounds on which the person has been
detained and if he fails to provide a valid ground, the person who has been
detained will be released by the Court immediately.
Illustration: A is wrongfully detained by 8, a police officer. A writes to the High
Court regarding the same. The High Court summons B with A and asks the
grounds for. detaining A. If B fails to provide a valid ground or justification for A's
detention, A will be free to go.
This Writ is very important for the personal liherty of the citizens because if this
Writ is not provided by the Constitution a person can be unlawfully restrained or
detained by any authority and it will be a clear violation of the personal liherty of
the citizens.
The Writ of Habeas Corpus is issued by the Courts in those cases where a person
is illegally detained. Habeas Corpus means 'to have the body' and it is one of the
most effective remedies available to a person detained.
By this Writ, the Court commands the person or authority who has detained or
restrained another person to present such person before the Court. The Court
requires the detaining person to provide the grounds on which the person has been
detained and if he fails to provide a valid ground, the person Who has been
detained will be released by the Court immediately.
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LAW OF CONSTITUTION
In this case the Supreme Court had accepted the application made through a letter it~f
by a co-convict (a stranger) due to the inhuman treatment of prisoners. In this case, b".;
the letter was accepted as an application and the writ of Habeas Corpus was inferi
issued. \.w
ju~
59. Mandamus that il
Ans. Mandamus means "we command". This writ is a command issued hy court IJI~t
to a public official, public body. corporation, inferior court, tribunal or govern to,-,"
asking them to perform their duties which they have refused to perform. Due decisi
the~ .
this, Mandamus is called a "wakening call" and it awakes the sleeping authorities
to perform their duty. Mandamus thus demands an activity and sets the authority'
action.
Case law: Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal Im~
In this case the Income Tax Appellate Tribunal had given clear directions to \w
respondent Income Tax Officer by its final order. The Income Tax Officer had 2.
refused to carry out the directions given by the Tribunal. It was held by '-'
Supreme Court that the Income Tax officer had a mandatory duty to fulfill ~
directions given by the Tribunal and non-performance of which amounted to
injustice. Thus, the Writ of Mandamus was issued to direct the officer to carry
the directions of the Tribunal.
Mandamus cannot be issued against the following:
• A private individual or private body.
• If the duty in question is discretionary and not mandatory.
• Against president or governors of state
• Against a working chief justice
• To enforce some kind of private contract.
A petition for writ of mandamus can be filed by any person
seeks a legal duty to be performed by a person' or a body. Such a filing
must have real or special interest in the subject matter and must have legal
do so.
60. Certiorari
ADs. Certiorari is a different type of writ when compared with other W
Writ is corrective in nature which means the purpose of this Writ is to
error which is apparent on the records.
Certiorari is a Writ which is issued by a superior court to an inferior
This can be issued when the superior court wants to decide a matter in
L/\')J OF CCNSTITUTICrl
itself or if there is an excess of jurisdiction by the inferior court. This Writ can also
be issued when there is a fundamental error in the procedure followed by the
inferior court or if there is a violation of the principles of natural justice.
•
If the superior court finds out that there has been a violation of natural
justice or a fundamental error on the procedure adopted, it can quash the order of
Quo warranto
The Writ of Quo Warranto is issued by the courts againsta private person
he assumes an office on which he has no right. Quo Warranto literally means
what authority' and it is an effective measure to prevent people from taking
public offices.
: A who is a private citizen and has no qualifications for the post of
inspector assumes such office. Here a Writ of Quo Warranto can be issued
A to call into question his authority on which he has taken the control of
office of sub-inspector.
The power to issue this Writ is discretionary on the courts and therefore
can demand that the court is bound to issue this writ.
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55 LA\V OF CONSTITUTION
56'-'
USU\.,l
62. Prohibition
genuim
ADS. The last Writ which can be issued under the Constitution is the Writ
SUb~l
Prohibition. This Writ is not issued often and is an extraordinary remedy which
Loc\.,
Superior Court issues to an inferior court or tribunal for stopping them
Under
deciding a case because these courts do not have the jurisdiction.
cour\,t:
If the court or tribunals does not have jurisdiction and it still de(;lQellI
the case, it will be an invalid judgement because for an act to be legal it ..... l1v·... _ =c
have the sanction of law.
expatw
For e.g., if a District Court is hearing an appeal against the
mart;
the High Court, such an act is bound to be prohibited because the District
COnstitl
does not have the power to hear such an appeal. So, a Writ of Prohibition will
issued against such an act of District Court. '-'
fund\::
Rules of Writ of Prohibition
of fund
The Writ can be issued only when:
Artic~
1. The inferior court or tribunal has overstepped its jurisdiction
2. The court or tribunal is acting against the provisions of law befor~
befor~
~~~
LAW OF CONSTITUTION
3. In cases where the court is partly acting within its jurisdiction and partly
outside it, the Writ will be issued against the act which is partly outside its
jurisdiction.
4. The fact that the applicant has a right to appeal against the order of the
inferior court will not be a bar to issue this Writ.
5. This Writ can be issued only when the proceedings are pending in the
interior court and not when an order has already been passed by that court ..
• e 6. The Writ of Prohibition can be issued only against a judicial or a quasi-
••
lctual
judicial body and it cannot be issued against any administrative body .
Difference between Prohibition and Certiorari
Both the Writs Certiorari and Prohibition appear to be the same but there is one
major difference between the two. In the Writ of Prohibition, the superior court
issues the writ before the final order is passed by the inferior court and therefore
this is a preventive remedy, while in Writ of Certiorari the superior court issues the
Writ after the inferior court has made the final order. Thus the Writ of Certiorari is
a corrective remedy by which the order of the inferior court is quashed.
\.If
also have the power to treat any case with private interest as a publicly interesting
case.
1.A pel
'-'
Important cases relating to PIL in India
cODnt\.ti
• Vishaka vs. State of Rajasthan metrono
This case played a crucial role in influencing the Parliament to enact the Sexual Ol:O(~.h
Harassment at Workplace Ac, 2013. In this case, a social activist was gang-raped the iIr:~
for vengeance. All the accused were acquitted by the trial court. The state applied ADs: "Ta
for a petition to the Supreme court under the name Vishaka. The court laid down J. Yo,
the guidelines to follow in workplaces to prevent sexual harassment. 2.]\;
Hussainara Khatoon v State of Bihar Hyc
This case dealt with the harsh conditions of prisons and under trial prisoners. 3. \.it
advocate filed a petition under Article 32 describing the poor condition of
~~s~
trial prisoners and their inability to safeguard their personal liberties. The eourt
held that the right to a speedy trial is a part of the right to I ife under Article 21. 2. \.11
arre
3.~
PrAtt:
prqve
Note: Reference to page no. 51 and 52; question no. 49 of the paper Law ank,
constitution, it is requested to ignore the same.
=c
persoi
~
preser
is ~
seetio
He~,
det
lift . .~.
2..T'"
~:~
legal,-,
Ans: Fa
1....,
im
2. '"
3 T
Is~k
1. "
2. 'r
-\,
c
Part --- C Answers
•
ners. An
Hyderabad only on Wednesday at 01:00 pm.
3. What fundamental rights of the arrested person have been Violated?
Issues in the case:
1. Whether he really committed the murder?
2. Why did the police not produce the person in court within 24 hours of the
•• arrest?
3. Is any of his fundamental right violated?
• Arrested person have right not to be detained for more than 24hrs, without being
• presented before magistrate, it is to prevent unlawful and illegal arrests. This right
is a fundamental right under Article 22 of Indian constitution and supported under
2•. The family details of a government employee were asked under the right to
information Act 2005 by a citizen. The public authority rejected the same on the
ground of privacy. The citizen is aggrieved by such rejection. Can he seek any
legal remedy? Decide .
.Ans:Facts of the case:
1. A citizen asked a government employee's family details under the right to
information Act 2005.
2. The public authority rejected the same on the ground of privacy.
3. The citizen is aggrieved by such rejection.
Issues of the case:
1. Can any citizen ask other person's family details?
2. Is there such provision in the Information Act 2005?
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LAW OF CONSTiTUTjOj~
Several judgments tell us that who can and who cannot access your 2. J-JF'.
information. While a son or daughter who naturally inherits his/her father's wealth, Issu~
land or other possessions, do not inherit his position for obtaining information.
Unless the public information officer sees a 'larger public interest' in disclosure ~: ~~
such information. it cannot be revealed 'even to the deceased's wife, husband or 3. ~l
children unless they hold a power of attorney specifically to a right to access Prine
information. \..<1
Judgement: Hence in the given case the citizen cannot seek any remedy and even intend
he seeks he will not succeed. visWt
'-'
•.. L/\W OF COfJSTlTUTlmJ
:.e
I!e
ADS: Facts of the case:
1. A University student found that number of visitors to the university have
been smoking in the premises.
2. He wanted to seek prohibition of smoking on the campus.
;. Your
Issues of the case:
'~e 1. Is it correct to smoke in the University premises?
rt•.
2. Can the student seek prohibition of smoking on the campus'!
;IAure
3. On what grounds he can seek prohibition of smoking in the campus?
Is~nd
Principle:
twccess
In recognition of environmental tobacco smoke health risks. the University
•• intends to provide a smoke free environment for its faculty, staff students. and
visitors.
REGULATIONS
cilional A. Smoking is prohibited in all University buildings, grounds. and University-
t.ly owned vehicles, as they are considered as the property of the University
ii B. Smoking in privately-owned vehicles and on sidewalks adjacent to public
thorough fares is not prohibited.
tIOna
'·1 C. The sale of tobacco products is prohibited in all University buildings, and
grounds.
Judgement: Yes, on the above mentioned grounds the student in the given case
can seek prohibition of smoking in the campus.
•
the strength of a residential permit issued by the government from time to time.
When he was asked to leave in India in 1962, he claimed that he acquired Indian
•
citizenship by domicile, having resided continuously in India for the last 20th
~. years, decide?
Ans: Facts of the case:
1. A French national came to India in 1942 and continued to reside in India
2. He resided in India with a residential permit issued by the government from
time to time.
3. when he was asked to leave in India in 1962 , he claimed that he acquired Indian
citizenship by domicile, having resided continuously in India for the last
20years.
Issues of the case:
Whether the French national can become a citizen of India?
1. Can he acquire citizenship by domicile?
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61
LAW UI- LUN::,III U IIUN
Principle:
Domicile is an essential requirement for acquiring Indian Citizenship. Domicile ~
means a permanent home or place where a person resides for a long duration of Judg
time. ju\.j:
Domicile can be categorized into two - accm
• By Birth. \.I
• By Choice. 7. The
To be entitled to Citizenship by Domicile there are three conditions which convW's
need to be fulfilled- the~i
1. He must have been born in territory of India. religIon
2. Either of his parents must have been born in territory of India. Ans:v
3. He must have been ordinarily residing in India for not less than live years 1. T
immediately preceding the commencement of constitution. coV
Judgements: In the given case only one of the three above mentioned 2.
conditions is fulfilled to acquire citizenship by domicile and not all the three rel~f
conditions. Hence he cannot be considered as an Indian citizen and he has to leave conve
India. '-'-
Issue:
6. Prakash was accused of committing an offence. During interrogation he l. '-'~
denied all the allegation made against him. The police want to conduct a lie prohil
detector test against his willingness. Can they conduct such a test? 2.~1
Ans: Facts of the case: reli ni (
1. Prakash was accused \>1' committing an offence. co~
2. During interrogation he denied all the allegation made against him.
3. Police want to conduct a lie detector test against his willingness. ::~
"n<v
Issues of the case: persor
1.ean the police conduct lie detector test to Prakash against his willingness? by \.I:
2. Can the Police force him to be a witness against himself provis
\..I
Principle : Yes, these tests are legal in India. However, the consent of the accused Relioi
is mandatory to perform the test. con\.,(
reli,;~
• In the year 2010, in Selvi&Orsvs State of Karnataka &Anr case, the Apex 'indtYc
Court ruled that no lie detector tests should be administered without the
consent of the accused
de~v
definll
• The court further stated that the individual undergoing the test must have ma~
access to a lawyer. the Cc
• Before test on the subject performing, his/her consent must be recorded Indi\.l
before a judicial magistrate. JUdf!e
• .An accused cannot be forced to be a witness against himself. be c!..t
reli~
• In D.K. Basu vs. State of West Bengal case in 1997, the Supreme Court
India involuntary administration of these tests will lead to cruel, inhuman
I AW OF rON<;TITIITIOl\1
62
•
1. The state of Dakshinanchal enacted law to prohibit forced or induced
conversions from one religion to other in that state.
2. The law was challenged on the ground that it deprives the followers of a
religion their right to freedom of religion which implicitly includes the right of
conversion.
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LAW 01- LU[\I:, III U i IUN
8. A private citizen wanted to hoist national flag atop his building everyday '-'
For 1
this was objected by the police. He claimed that he has every right to fly the cit\_;1
national flag atop his building as his fundamental duty to respect it . Decide. subje:
Ans: Facts of the case: hi~
1. A private citizen wanted to hoist national flag atop his building every day, Jud~1
2. This was objected by the police, , grc)wu
3. He claimed that he has every right to fly the national flag atop his building doe:n
4. He felt that it is fundamental duty to respect it. ca~c
Issues in the case
\.f
1. Can a private person hoist national flag atop his building every day? 11. A SI
2 , Has the right to fly the flag atop his house? prin,,-,I
Principle: Supreme Court decision has made it legal for any citizen to tly the policy u
National Flag. The rules to be followed are mentioned in the Flag Code ofIndia. Ans:~:
Even though it's our right to tly the flag. Below rules are to be followed. 1. TI
• When flown over public buildings the national flag should be flown from 2. \.(1
sunrise to sunset. 3. v
• The flag should always be hoisted at a brisk pace and lowered slowly. Iss~~
• Display of a damaged or a disheveled flag is also an offence. The national flag .._,J
should not be dipped on any occasion. court
• It cannot be tom, damaged, burnt, or disrespected in any manner. The disposal Ar\.)
of a flag should be done as a whole, in private, preferably by burning. Etc. be en
Judgement: In the given case police cannot object the citizen from flying flag doV
atop his house. Butone must avoid doing it in private building since it is not T
always practical to follow the code daily by individuals. its \.",
pnnci
9. A person was arrested by the police but he was not produced before the Fu~
magistrate within 24 hours .advice him. Ju~"'c
sta~
ADS: Same answer like the 1st problem'
12. T~
10. A person who migrated to India from Pakistan, after 18 July, 1948 such a withi\_;
person citizen of India or Dot -decide. Decide.
Ans: Facts of the case: An\_,
1. A person migrated to India from Pakistan after 18 July, 1948. 1. Tht
2. You have to decide such a person citizen of India or not. 2. ~
3. Xl)'
Issues in the case :
Iss~
1. There is no clarity in date of his migration to India from Pakistan .
2. Whether the person will be considered as Indian citizen or not?
I\:.
Princ
Principle: Article 6 provides citizenship rights to migrants from Pakistan befo~ the\..,
commencement of constitution. A person, who migrated from Pakistan to India the ci
before 19 July 1948 shall be considered a citizen of India, provided either of the
person's parents or any of his grandparents were born in India as stated in the '-'
India
Government of India act, 1935 and has been residing since the date of . inh~
LAW OF CONSTITUTIOl~
For personls migrated after 19 July 1948, the person should be registered as a
citizen ofIndia by an officer from the Government of India, but for registration the
subjected person has to be a resident of India for at least six months, at the date of
his application
Judgement: In the given case it is not given clearly about his descent ( parents and
grandparents information) and the date of his migration i.e., after 18th means it
doesn't mean that it is beforel9th.it may he on any date after 19th also. So he
i~
cannot be as a citizen of India .
12. The High Court directs the state government to enact a uniform civil code
within a period of 6 months. Is such direction binding on the state government?
Decide.
Ans: Facts of the case:
1.The High Court directs the state government to enact a uniform civil code.
2. The HC directs to enact UCC within a period of 6 months.
3. You have to decide such direction binding on the state government or not.
Issues of the case :
Is such direction of High Court binding on the state government?
Principle: 'Uniform Civil Code' is explicitly mentioned in Part IV, Article 44 of
the Indian Constitution. Article 44 says, "The State shall endeavor to secure for
the citizens a uniform civil code throughout the territory of India."
A uniform civil code here refers to a single law, applicable to all citizens of
India in their personal matters such as marriage, divorce, custody, adoption and
inheritance.
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\....
Principle : The second marriage after the conversion to any other religion
allowing bigamy is not valid. However, the Hindu Marriage Act, 1955 has not
specified the status of a person marrying after conversion. It declares subsequent
marriage between two Hindus is void if their partner is living and they have not
divorced at that time. This issue was scrutinized by the Supreme Court at length in
the landmark case of SarlaMudgal&Ors. vs. Union of India and it settled the
ambiguity surrounding the rights, duties and obligations of people who change
religion to defeat the law. The court held that a change of religion does not permit
,e.
a person to defeat the provisions of law and to commit bigamy.
iAt. Judgement: The Supreme Court held that a change of religion does not permit a
• person to defeat the provisions of law and to commit bigamy. Hence in the given
•
case the Ilindu will succeed in his challenge.
• of children? Discuss.
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b/ LAW OF CONSf iTUTION
2. The airport authority conferred powers over appointment and termination of its
cmployees.
3. The magistrate ordered to take the specimen handwriting and finger prints
Mr X against his Willingness .
4. X challenges the order stating that it violates his fundamental right under Art
(3).
Issues 0 the case:
1. Can A magistrate issue an order authorizing the investing
specimen handwriting and finger prints of Mr X an accused
Willingness ?
2. Does the X succeed in his challenge?
3. Does the order violate his fundamental right under Art 20 (3 ) ?
Principle: The Delhi High Court ruled that the fingerprints or
handwriting of an accused taken by an Investigating Officer during probe
case was admissible as evidence even though a permission from am'
not taken.
And also in some other cases the court said that the 10 was well-
his right to ask an accused to record his sample handwriting or fingerprints
the absence of an approval from a magistrate will not vitiate its evidentiary
Judgement: In the given case X will not succeed in his challenge because
68
LA W OF CONSTITUTION
)il
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..
70'-'
LAW Of- CONSTIlUTiON
Ju~e
20. The parliament in exercise of its constitutional power amended the
constitution and deleted the right to property from Part-III fundamental rights, CV
the d
A citizen challenged the validity of the amendment on the ground that it effected
the basic structure of the constitution. Will he succeed?
wl\j:
in Utt,
Ans: Facts of the case:
an~
1. The parliament amended the constitution and deleted the right to property from
Part-III fundamental rights.
to~\
2. A citizen challenged the validity of the amendment on the ground that it effected
the basic structure of the constitution.
70 I AW OF (,()N<;TITI JTlON
Judgement: In Rashid Ahmed vs. The Municipal Board, Kirana, the Supreme
Court had occasion to discuss: in detail the scope of the rights guaranteed under
the clause regarding the freedom of profession Rashid Ahmed was carrying. on
wholesale business in fruits and vegetables in one of the bazars of Kairana, a town
• in Uttar Pradesh and held Rashid Ahmed' fundamental rights have been infringed
and he is entitled to have his grievance redressed ..
•
y from
Based on the above _judgementof Supreme Court I can say that A has right
to move the Supreme Court directly for redressal.
f,ted
22. X a convict for life, wrote a book on current political affairs and wants to
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72\.,
11 LAW Of- Cui~')i IiUTiON
2~
23. The supreme court directed the central government to enact a uniform civil
code within a period of 6 months .is such direction binding on the government 3(']1
decide. 4.~
Ans: Refer the answer of 12th question of same type. ~,:
24. A political party gave a bandh call. It was challenged by two citizens IsV~
1.(
belonging to Kerala chamber of commerce as illegal on the ground that it
~
deprives other citizens from enjoying their fundamental rights. Advice.
Ans: Facts 0 the case: 3,J~
1. A political party gave a bandh call . Th~
2. It was challenged by two citizens belonging to Kerala chamber of commerce as
illegal. '
3. They challenged on the ground that it deprives other citizens from enjoying
~~
ThlJ'
their fundamental rights. IndIa I
pur\.)
Issues of the case : Monic
1. Is a bandh call by any political party illegal? In V
amoun
2. Does a bandh call deprive other citizens from enjoying their fundamental
rights? for\.v
Jud(T~1
The given case is identical to ShreyaSinghaJ vs. Union of India.
jeo~(
Facts of the case: In the year 2012, two girls were arrested by the
govr-'"")
police. The arrest was made for expressing their displeasure at a bandh which
Yes~
called in by the members of Shiv Sena people in Maharashtra for -the incident.•.
Shiv Sena chiefBalThackery's death.
26. ~]
The accusation made against the petitioners was that they
involved in posting their comments on the Facebook and liking the comment at as IV:
belong
same time. It resulted in widespread public protest. The petitioners by the
reli~1
Public Interest, filed the writ petition under Article-32 of the Constitution
Fact~ (]
that section 66A of IT Act 2000 violates the right of freedom of speech
expression of an individual. ·M
Judgement: The court ordered 66A as violative of right to freedom of
and expression and is not covered under the grounds of reasonable
given under Article 19(2).
Based on the above judgement in the given case also the bandh
illegal and it deprives other citizens from enjoying their fundamental
the they will succeed in their challenge.
~'l
•
2. The actress went European country with that fake passport.
3. The European government prosecuted her for the same.
4. You have to decide whether
a. She will be prosecuted in India again.
:izens
I.it
• b. The constitutional guarantee under articles 20(2) applicable to her or not.
Issues of the case:
1. Can anyone obtain a passport with fake identity?
2. Will she be prosecuted in India again?
:~
• 3. Is the constitutional guarantee under articles 20(2) applicable to her'!
This case is identical to Monica Bedi v State of Andhra Pradesh
Principle: This is the case is identical to the case of Monica Bedi vs State of
Andhra Pradesh.
:J
• The doctrine of Double jeopardy has been conceptualized in the Constitution of
•
::>
India under Article 20(2) which provides that no person shall be prosecuted and
punished for the same offence more than once.
Monica Bedi v State of Andhra Pradeshr"
In this case the Apex Court ruled that a passport enrolled on fictitious name
amounted to a double jeopardy as a Portuguese court too had earlier convicted her
for owning forged passport
Judgement: Based on the above case the given case also will amount to double
jeopardy if Indian government prosecutes her again because already European
government prosecuted her .
Yes the constitutional guarantee under articles 20(2) applicable to her.
in the case:
Can such person who does not belong to priestly class as pujari in the
Hindu temple?
Ie: The Supreme Court of India held that only authorized Pujaris can
the actual worship of the deity.
court also upheld the amendment and observed that as long as the actual
. ofthe deity is allowed to be performed only by authorized Pujari's i.e
belonging to the correct denomination and not by those who did not have
necessary traini no grievance can be made. So the takeaway from this
JB SERIES
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LAW OF CONSrl1 U [ION
judgment is that, Any person who has got training irrespective of caste or creed
!PIr
can be appointed as a priest. The appointment of a priest is a secular function. The iCJ'
n'C1
court upheld that but it reads this clause in it because the Aghamas have held that
in the Shaivite temple a vaishnavite by faith should not be the Archaka i.e The
\.I]
• j
actual denomination in a denominational temple the priest must belong to that
denomination and he must he well-versed and trained in The Agamas. So the state .'-.
can appoint a priest irrespective of caste but keeping in mind the requirements of
that denominational Temple that a person who is appointed as an Archaka should
at least be a part of that denomination.
. Judgement: As per the above supreme Court Judgement in the given case the
.
1,-,(
[
~'.t e
he
28. Refugees from Srilanka came to India and want to settle .They filed a writ
in the Supreme court of India that they have a right to settle in India. Decide.
Facts of the case:
• Refugees from Srilanka came to India.
te
: state
• And they wanted to settle in India.
• .They filed a writ in the Supreme court of India that they have a right to settle
ter in India.
•
.ould
Issues in the case:
Judgement: Based on above principle it is very clear that Srilankans came here
illegal. So, they are not entitled to Indian Citizenship. Hence they have no right to .
settle in India.
29. Articles 14, 20, 21 and 22 guaranteed by the fundamental rights of Indian
constitution to the citizens of India are suspended by the President of India
during the National emergency. A person wants to challenge in the Supreme
...Court. Advice.
-Facts of the case:
• Articles 14,20,21 and 22 guaranteed by the fundamental rights ofIndian
constitution to the citizens of India.
.• They are suspended by the President of India during the National emergency.
• A person wants to challenge in the Supreme Court.
>Issues in the case:
.•• Will the person succeed in his challenge?
..Principle: During the period of Emergency as declared the state is empowered to
: suspend fundamental rights (which is given to every citizen) guaranteed under
..Art.19- of the Constitution.
Further the Constitution empowers the President. to suspend the right to
any court of law for the enforcement of any of the fundamental rights except
under Article 20 and Article 21. It means that virtually the whole chapter on
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~r
IJ
LAW Of-lUN~111 U IIUN
fundamental rights except Articles 20 & 21 can be suspended during the operation
of emergency. i.e., Articles 20 and 21 cannot be suspended A.
In the given case the person who wants to challenge in the Supreme COUrt
regarding the suspension of Articles can challenge only for suspension of 20 and
21 but nor 14 and 22 Articles.
Judgement : Based on the above principle it is very clear that only
Articles 20 and 21 are exempted from suspension but not all articles. But in the
given case the person who wants to challenge in the Supreme Court regarding the
suspension of Articles can challenge only for suspension of 20 and 2 J hut nor
14 and 22 Articles during the National emergency.
v
w.:
**** ~6
•
7
\.1'3
9
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'1
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'-'
V
"'-
4.;
JB
---'*
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1
-. V
PAPER IV - LAW OF TORTS _
\J
CONTENTS
PART - A QUESTIONS V
1. Res ipsa loquitur v
2. Write a short note on Motive. u
3. Write a short note on Malice.
4. Defence of Sovereign Immunity.
5. What is Joint Liability?
u
6. Explain the doctrine of Acquiescence. v
7. Wavier v
8. What is Accord and Satisfaction?
9. Write a short note on Release. v
10.
11.
Write a short note on Assault. u
Write a briefnote on Battery.
12. Write about False imprisonment. U~
13. What is Malicious Prosecution?
V
14. What is Nervous Shock?
15. Trespass to land.
U
16. Nuisance. V
17. Defamation
18. Passing off U
19. Conspiracy. U
20. Judicial and Extra-judicial Remedies.
21. Remoteness of Damages. c
22. Describe the kinds of injunctions.
c
23. Define Action personalize moritur cum persona. Maxim.
24. Consumer.
u
25. What are the Rights of Consumers? o
26. Doctrine of Strict Liability.
27. Doctrine of Absolute liability. "
'-
'-'
•
•
._ 2 LAW OF TORTS
• PART - B QUESTIONS
• 34. State's Vicarious Liability tor the t011s perpetrated by its employees.
• Explain in detail.
35. What are the Salient features of the Consumer Protection Act. 1986'1
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Law of Torts
Part-A Answers
1. Res ipsa loquitur
ADs. Res ipsa loquitur is a Latin phrase that means "the thing speaks lor itself'.
considered to be a type of circumstantial evidence which permits the co
determine that the negligence of the defendant led to an unusual event
subsequently caused injury to the plaintiff Although generally the duty to p
the defendant acted negligently lies upon the plaintiff but through res ipsa loq
the plaintiff presents certain circumstantial facts, it becomes the burden
defendant to prove that he was not negligent.
the warning and was consequently injured. The court held that this amounted to
contributory negligence by him.
• water. The plaintiffs insisted that this was malicious and that they had the right to an
injunction to stop the defendant from acting in this way .
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5 LAW OF TORTS 6
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• In cases of nuisance, causing personal discomfort by an unlawful motive may govern
turn an otherwise lawful act into nuisance. Prot\.tt
such a:
3. Write a short note on Malice. judg~f
SUp\;~
Ans. Malice means ill-will in the popular sense. When an act is done with bad sovere:
intention, it is called Malice. An act or statement becomes malicious if used for imlT~~
purposes other than those sanctioned by the law authority. activiti.
In the legal sense, it means' intentional wrongdoing, without a just cause. Ii
emphasizes here that this wonderful act docs not become lawful merely because the instrl".I'~1
motive is good. Similarly, a lawful act does not become wrongful because or
an also~;
improper, bad or evil motive or malice.
and V
Exceptions to the Rule ambass:
In the following cases, malice becomes relevant in determining tortious liability: may\.;
T
• When the act is with wrongful intention and unlawful can be gathered from the
to th~
circumstances of the case.
In Balak Glass Emporium v. United India Insurance Co. Ltd., in a multi-
storeyed building, the water from the upper story, under the control of the defendant
~~~~
appliu
escaped to the lower floor, occupied by the plaintiff There was evidence of ill will that are
between the plaintiff and the defendant. It was evidence of ill will between the
V
plaintiff and the defendant. It was found that not only the tap of the upper floor was
left fully open, but the outlet of the tank was also closed. 5. Wtc
There was only one inference (conclusion) that the said act was done by the Ans. 10
defendant, with the wrongful intention, and hence, the plaintiff was held entitled to debt <\_.,
get damages for the same. share th:
of: '-'
Conclusion: By "mental elements", we mean a person's 'intention' to harm
person by infringing his or her legal rights. The underlying principle is • In I.
\.,
wrongdoer cannot escape liability under the law of tort, simply because he has dam.
intention of causing harm. However, in some cases, an offender may not be • TJ\..,
liable (e.g., qualified privileges). shan
• M~
4. Defence of Sovereign Immunity. pr~
Ans. The sovereign immunity refers to the fact that the government cannot be sued' The.
without its consent. Sovereign immunity protects sovereign states and their state awardAt
officers and agencies. section 86 of the Code of Civil Procedure 1908 (CPC), insolvent
provides that no suit may be instituted against foreign states in India, except with
Criticis~
prior written consent of the government;
India has adopted a restricted concept of sovereign immunity. Pursuant • As~
Code of Civil Procedure of India, foreign states and their organs thee
instrumentalities can be sued with the prior written consent of the
government. However, such consent may not be required where the
LAW OF TORTS
•• governed by a special law (for, eg, the Carriage by Air Act 1972, Consumer
Protection Act 1986) or where the legal proceedings are not in the nature of a suit,
such as an industrial dispute under the Industrial Disputes Act 1947. In its 2011
judgment in Ethiopian Airlines v Ganesh NarainSaboo (Ethiopian Airlines), the
I.:ae.
!it Supreme Court of India reiterated the consistent view in India that the doctrine of
sovereign immunity in India was not absolute. and that foreign states do not have
immunity from judicial proceedings in cases involving their commercial and trading
activities and contractual obligations undertaken by them in India.
In addition to foreign states (including their organs, departments,
instrumentalities), per section 86(4) of the Cf'C, the immunity under section 86 is
~~f also available to rulers, ambassadors, envoys. high commissioners of foreign states.
•
it'
and any such member of the staff of the foreign state, or the staff or retinue of the
ambassador or envoy or the high commissioner of a foreign state, as the government
may specify.
Thus, the privilege of sovereign immunity in India extends to matters relating
.he to the pcr lorrnance of sovereign functions of foreign states and excludes matters
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• On the other hand, it may be considered unfair to a party who bears only a
minor responsibility for an adverse event to bear an outsized financial loss
because of it.
Example: If your neighbour builds a fence two feet into your property, you pro
have a legal obligation to raise an objection and tell your neighbour to
fence. and correct the problem. If you do not do so, under the law, you
deemed to have acquiesced/ accepted to your neighbour's land grab, whether
neighbour acted intentionally or not, and your neighbour may one day
legal owner of this land through the doctrine of boundary by acquiescence.
As a result of acquiescence, the person whose rights are infringed may
ability to make a legal claim against the infringer, or may be unable to
an injunction against continued infringement. The doctrine infers a
"permission" that results from silence or passiveness over an extended
time.
7. Wavier.
ADS.The another method of discharge of tort is by the waiver. The
waiver is when a person has more than one remedy available to him, as a
has to elect one of them. He cannot apply for both the remedies except in the
defamation and assault.
Illustration:
If A files a case against B that B has committed a tort against A. If A has right
more than one remedy he has to choose anyone of them, i.e. if he has the
both tort and contract law, now he has to choose one between them.
The main two principles lying in the doctrine of Waiver are:
I. The person has to choose anyone remedy.
2. If the person fails to get the remedy he chooses, the court of law does not
him to go back to an alternative remedy.
Illustration: If A files a case against Z and has two remedies for which
approach the court of law. If he chooses the first remedy and loses the
cannot approach to the court for the alternate remedy i.e., remedy number
2. The Waiver can be implied or Express
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8 LAW Uf- IUKI~
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In Express waiver, the person expressly communicates about his choice in the court
oflaw.
Illustration: If A files a case and he has the remedy in both, contract as well as Tort.
When the court asks him he has to communicate his choice to the court.
• In the Implied form of waiver, the person impliedly communicates about his choice
for which remedy he is applying.
Illustration: I f A has two remedies available to him like one under contract and one
under Tort. if he applies for Contract, it becomes clear. he elects the remedy under
the contract.
only condition in the concept of Accord and Satisfaction is the consent of the
should be free and not from fraud, coercion or undue influence.
tion: If A, a son of a successful businessman brutally hit one of his servant
trespass to the body and if A tries to make his servant enter into accord by using
type of undue influence on him. Due to that influence, the servant gave his
,...·
..... this is not considered as free consent and the accord and satisfaction are not
·"HL.
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9 LAW OF TORTS
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Situation 2: A is the person against whom Band C both commit an act of tort and A
by his choice release B from the liability, this does not mean that C is also released 1. '-tt
from his liability. c::In
The release should be voluntary and given by free consent from the injured person. 2. ~
If the consent is taken by coercion, undue influence. or any other unlawful means V
then that release should not be counted as a release and the tort is not discharged. thet
Illustration: I f a person is a police inspector. commits an act of tort against ana 3. ~
person. By using his position and by threat. take the consent of the injured person
and release himself from the liability, that release is not a valid release.
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10. Write a short note on Assault. the Sup
Ans. In common law, assault is a tort. Assault is the attempt to commit battery. An Con~~
act of the defendant which causes to the plaintiff reasonable apprehension of the batt\.i
infliction of a hattery on him.
II. \.I
Example: The pointing of loaded gun to another is an assault. Even the pistol is not
loaded, then also it may be an assault. If a person advances the manner of Ans. 1
threatening to use force, then there is assault. This was decided in the case cons~t
of Stephens v. Myers. withQ
as tresp
Elements of Assault:
1. V
• An act or conduct intended to create fear: The defendants' behaviour must be
motivated to create a situation of fear or danger in the victim's (Plaintiffs) mind. ~rit
lOVO
• A reasonable apprehension: Further, the victim must reasonably believe that the Civi~
defendant's conduct will harm or humiliate him. victim(
• Of imminent harm: The victim's fear must be a direct response to a threat that is Esse~~
imminent. In addition, there must be some kind of physical threat to the victim.
Thus, the pretence of kicking or punching the victim may be an attack, an • \,~
Crir
attempt to spit on the victim also will come under assault. (aggressive
behaviour). \.J'
All of the above e~ements must be present and the evidence must be supported •
~
the attack.
· E\_,
Legal defences on charges of Assault. They are: that
1. Self-defence: In this the defendant should only use the amount of force
appropriate in the situation and in proportion to the force being used
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them. ~ t
1. Action for damages- Whenever the plaintiff has been wrongfully detained, he
can always bring an action to claim damages.
• on. 2. Selfhelp- This is the remedy which is available to a person who while he is still
ft.
,
means
under detention instead of waiting for legal action and procuring his release
thereby.
3. Habeas Corpus- It is speedier remedy for procuring the release of a person who
is wrongfully detained. Such a writ may be issued either hy the Supreme Court
•
;!.An
the Supreme Court granted such compensation in writs of habeas corpus.
Conclusion :Assault is an attempted offense, the law is intended to prevent possible
battery by punishing conduct that comes in a dangerous way to obtain battery.
•
of the
,t.
•
) mind
as trespass to a person.
1. Criminal Battery
so it is divided into two types:
2. Civil Battery
Criminal Battery: In a criminal battery, intention plays a major role as the action
involves intention to kill a person.
laAe Civil Battery: In the civil battery the intention to hurt someone is not present, so the
•ian.
that is
victim can lodge a complaint against the wrongdoer under civil court.
Essentials of Battery
• Intention: The intentions for both civil battery and criminal battery are different.
•:e'l for
Criminal intent to cause the injury is not necessary but the intention to cause the
act which harms the person is required as it results in the battery.
• Contact: It is not necessary that the contact must be physical by individual. The
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battery doesn't need body-to-body contact.
· Example: A mixes knowingly something harmful in the food of B. If
that, that will he considered as A has committed battery against B
Beats
• Harm: The victim must have suffered in any manner but the harm can be
aenst minimum, severe damages are not required. Unwanted sexual contact or
_ere uncomfortable touching without the consent also comes under battery as it harms
the person physically, emotionally, and mentally.
•~Aith • No Consent :The victim must not know about the action which is planned by the
accused
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11 LAW OF TORTS 12
-\.;
For example, when surgeons steal organs from patients to sell them will be • Tq
cons ide red as a battery.
• No Lawful Justification: The complainant has to prove that the force used by the •C~
go
accused was unlawful and was not justifiable.
For example: A and B were walking side by side. suddenly B started fighting
VI
with A, in this situation B is liable for battery. • PI.
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Defences for defenda nt:
Pla(;i
• Self Defense: In this case, the defendant must prove that he did not provoke the the co
other person and there was absolutely no other way to save himself
de~(
• Defence
. of Others: In this defence the defendant tries to save another individual, Defenc
not himself.
Va~.I
• Defence of Property: In cases of disputes over personal property. the owner can
CoV
use force to take his property back.
the pre!
Remedies
Prolv
• Legal Remedies: Legal remedies are also known as damages. which are given Remedi
by the defendant to the plaintiff to compensate for the injuries, pain, or the
Acti~)
sufferings given by the defendant.
• Restitutionary Remedies: These remedies include:
the U'
Nomina
• Restitutionary Damages: that \,;1
• Replevin. false an
• Ejectment Puni~
• Property Lien certain c
Equitable Remedies: These remedies include: Habe"M
• Temporary Restraining Order =-c
• Temporary or Permanent Injunction
Conclusion: In the case of battery, physical contact is very important but 13. """'~
need body to body contact. is The contact must damage the person in any
way and the act must not be justified by the law.
An~.
agamst ;
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reaso1\.,.:
12. Write about False imprisonment. prosecute
Ay the • Eg: A and B are workers, and A is unaware about the fact that B is still in the
godown, locks him inside the godown. He will be held liable for false
imprisonment.
• Place of confinement: Ir any place is used in order to confine a person for a short
or long period, it will amount to false imprisonment.
Plaintiff's knowledge: It is immaterial whether the plaintiff has the knowledge of
the confinement or the restrictions imposed by the defendant which completely
deprived him of his liberty.
Defences of false imprisonment
ValidArrest: Ifa person was detained due to lawful arrest or due to arrest under law.
Consent to arrest: If the person who consents to be restrained or con fined without
the presence of fraud or coercion but voluntarily.
Probable Cause: When probable cause is established by the action.
Remedies:
Actionfor loss: The defendant is liable for all (losses) consequences resulting from
• that would be just nominal and equitable Damages to compensate for an action of
false arrest or false imprisonment.
•
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~r.P'rt~lln
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exemplary and aggravated losses: Exemplary damage may be provided in
circumstances when power is misused by the state .
corpus: This writ is considered an effective remedy for immediate release
wrongful detention.
the case of KhagendraNath v. Jacob Chandra, the Court held that merely bringing
matter before the executive authority did not amount to prosecution and,
fore, the action for malicious prosecution could not be maintained. It is also to
noted that departmental enquiry by disciplinary authority cannot be called
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LAW OF TORTS
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• Absence of reasonable and probable cause: In a suit for damages for malicious Com
prosecution, the plaintiff has also required to prove that the defendant prosecuted S~5
him without reasonable and probable cause. cn1\.
Here, though A did not intentionally do the wrong, however, it is natural on part ofB R",
to be shocked; and hence A will be liable towards B. floor
haV
Essential elements to claim damages for Nervous Shock
The p
Forseabibility Test: an~
In the case of Page vs. Smith it was explained that • In
It is to be noted that, in India there have not been any codified laws that relate to the Dark
wrongs under the law of torts. Further cases of nervous shock have been dealt with Th~
under the Specific Relief Act that is usually covered for the contracts or the contrn
the \."
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Consumer Protection Act. Further in 1987, the Mental Health Act has been enacted
so as to cover the rules regarding the persons who suffer from mental illness.
CONCLUSION: Therefore there is a growing need to have legislation to govern
such civil wrongs; not only for India, must even the international community look
intothe development of universally consistent laws because of globalization around
theworld.
15. Trespass to land.
Ans. Trespass to land can generally be defined as immediate physical interference
••
,
person's land.
Elementsof Trespass to Land
A plaintiff can file a prima facie case for trespass to land by showing that:
• To the plaintiff's real property
• The defendant did it intentionally
• He/She caused an intrusion, either by entry onto or failure to leave or remove
from,
Plaintiff's Real Property
It is important to understand that the plaintiff does not need to be the owner of the
land in question. The plaintiff needs only be the possessor of the land. A person
renting a house can sue for trespass to land,
Eg: If a multi-story warehouse converted into full-floor loft apartments. Suppose
Ram is the tenant-lessee of the third-floor loft, and Shyam is the tenant of the fourth-
•
floor loft. If Ram ventures up to the fourth-floor loft without Ram's permission, Ram
has committed a trespass.
• The property interest in a plot of land extends down into the subsurface of the Earth
and upward into the sky.
• Intent: There need not to be an intent to trespass, just an intent to affect the
action that constitutes the trespass.
Eg: Suppose the defendant intends to place a small wire-and-plastic marking flag
in the defendant's ground. This constitutes a trespass to land. The intent
• requirement is satisfied.
Entry: An "entry" does not become the trespass of the plaintiff's property.
However, it becomes trespass if he fixes anything on the land etc beyond the
scope of permission.
Failure to Leave or Remove: Eg: A guest who refuses to leave when asked is
also will be considered as committed a trespass.
Damages for Trespass to Land:
The plaintiff may seek damages, or an injunction, or both. If the trespass is
continuing, an owner or tenant has a right to compensation for the injury caused by
thetrespass.
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15 LAW OF TORTS 10
Depending on the nature of the trespass the plaintiff can claim the following:,
I. Loss of market value
2. Costs of restoration \JI
3. Loss of use of the property • T
4. Physical injury to the person or the land etc. K~~
Injunction: An injunction is usually the most effective way to stop repeated «>
trespassing .. After the issuance of an injunction, If the trespassing continues, the Dame:-
police will enforce the injunction. and the complainant may file for contempt of E.~s
court. P"-.,i
Conclusion: Trespass to land occurs where an individual directly enters upon
another's land without permission. or remains upon the land, or places or fixes any
object upon the land.
16. Nuisance.
\.I
Ans. The word nuisance has been derived from the French word 'nuire ' which means, Cone]
to hurt or to annoy. But for the purpose of the law of tort, it may be described as or\_."
unlawful interference with a person's use or enjoyment of land or of some right over.
Kinds of Nuisance 17\..£
1. Public Nuisance AIr.
anM
2. Private Nuisance is I:"J
Public Nuisance: A public nuisance is an unreasonable, unwarranted, or unlawful m~J
interference with a right common to the general public.
Thus acts which seriously interfere with the health, safety, comfort or
1.'-"
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convenience of the public generally or which tend to degrade public morals have
always been considered a public nuisance.
2.'-1-
3.~1
Examples:
4. Tl
• Obstructing a public way by digging a trench.
5.'-rl
• Carrying on trade which causes an offensive smell.
6.~]
Essentials of Public Nuisance
Def=r
• A person must have done an act or an illegal omission
1. ~l
• Such an act or omission must cause any common injury, Sla\.(
• Danger or annoyance to the public abollt
• To the people in general who dwell or occupy the property in the vicinity. Eg:'rf
Private Nuisance: A nuisance interferes with the right of a specific person or entity, A~
The remedy in an action for private nuisance is a civil action for damages of all Libel
injunction or both als&.;
The Elements of a Private Nuisance suit to be proved by a Plaintiff: Slat;
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•
•
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LAWui- luk I::>
• The plaintiff is the owner of the land or has the right to possess it
• The defendant literally acted in a way that interferes with the plaintiff's
17. Defamation
ADs. Defamation is the oral or written communication of a false statement about
.0 another that unjustly harms their reputation and usually constitutes a tort. A person
is liable for the defamation of another. In order to prove defamation, the plaintiff
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LAW OF TORTS
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Some statements, while libellous or slanderous, are absolutely privileged in the Rem,
sense that the statements can be made without fear of a lawsuit for slander. T~(
The best example is a statement made in a court of law. An untrue statement made
by a witness about a person in court which damages that person's reputation will
generally not cause liability to the witness as far as slander is concerned.
However, if the statement is untrue. and the person knows the statement is • Sl
r "
3. Damage •
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• goodwill - you must prove that you own a 'reputation' in the mark that the publiC ~
associates with your specific product or service Typt''-:
• misrepresentation- you must show that the trader has caused confusion and l.~
deceived or misled the customers into believing that their goods and services are 2. \.;
actually yours 3. 'U
• damage - you must prove that the misrepresentation damaged or is likely to '-'
damage your goodwill, or cause actual or foreseeable financial or reputational \..,
los
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L'\'/J OF TORTS
19. Conspiracy.
Ans. Definition: "A Conspiracy is an unlawful association of two or more than two
persons, to do any act which is not legal according to the law of land or to do
something harmful towards another person or to carry out an act not in itself
unlawful, but by unlawful means".
Essential Elements for a tort of conspiracy:
• Intention:. For an act to become a tortious conspiracy, there must be a common
intention of all the people involved in the conspiracy to do an illegal act or an act
which is contrary to the law.
• Combination:. For an act to be considered as conspiracy, it is necessary that the
• people working with the same intention must have agreed to that act mutually .
• Overt Act :Thus, for a conspiracy to be considered as a Civil Conspiracy, it is
necessary that one of the conspirators has acted in furtherance of the plan.
Types of Conspiracy Under Torts
1. General
2. Conspiracy to Injure
3. 'Unlawful Means' Conspiracy
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21. Remoteness of Damages.
Ans. The principle of Remoteness of Damages is relevant to such cases an event
•
~roupof
constituting a wrong can constitute of single consequence or may constitute of
consequences i.e. series of acts/wrongs. The damage may be proximate or might be
•
A few elaborations of cases to make it more clear.
1. Case law Scott v. Shepherd:
•
d_to
'A' threw a lighted squib into a crowd, it fell upon 'X'. In order to prevent injury to
himself, X did the same thing and it fell upon Y. Y in his tum did the same thing and it
then fell on B, as a result of which B lost one of his eyes. A was held liable to B. His
act was the proximate cause of damage even though his act was farthest from the
.hand damage in so far as the acts X and Y had intervened in between.
•
nstead of
o_to
injured in an attempt to stop them with a view to rescuing the woman and children on
the road.
One of the defenses pleaded by the defendant was remoteness of consequences i.e. the
mischief of the child was the proximate cause and the negligence of the servants was a
ge of the
• remote cause.
3. General illustration
A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a
• bicycle and breaks her finger, the bicycle man loses his balance and gets in front of a
•
fuel tanker, the tanker to save the man on the bicycle steers left but unfortunately hits
the railing to a river bridge and falls into it , the lock of the fuel tank breaks and the oil
• spills into the river, the driver with the truck drowns.
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• Aman commits battery on Raman. However, during the incident, if either party
dies, the right of action which was accrued to Raman by the reason of the battery is
• taken away.
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23 LAW OF TORTS
But if Aman commits a battery upon Raman, or do other injuries to him, any right of
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action which accrues to the third person will not be affected by the death of Raman, \.tl~
so far as the application of the maxim in question is concerned. mec
~(
The Bombay High Court in KhuzemabhaiSyedna vs ufaddalBurhanuddinSaifuddin , rt>f(
held that the maxim 'actiopersonalismoritur cum persona' though part of English
Common Law has been subjected to criticism even in England. It has been dubbed h1g
as an unjust maxim, proceedings depended on the temperament of the person \.f)
defamed. ' acce
twg
24. Consumer .. O(
Ans. A person who 'buys a goods or service for his own personal use and not for further avo
manufacture is called a consumer. Consumers playa vital role in the economic \...g
system of a capitalist economy. Without consumer demand, producers would lack app
one of the key motivations to produce: to sell to consumers. The consumer also ~,
forms part of the chain of distribution.
As consumers spend, economists presume that consumers benefit from the utility of ~
the consumer goods that they purchase, but businesses also benefit from increased
sales, revenue, and profit.
V
For example, if car sales are increasing, auto manufacturers will see a boost in '-g
profits. Additionally, the companies that make the steel, tires, and accessories for
cars also see increased sales. In other words, spending by the consumer can benefit
the economy, and the business sector in particular. Some economists believe that
~.
consumer spending leads to an increase in production and it increases the economic Cor
growth.
~
Types of Consumers:
• Discretionary Spending Consumers. Groups with high amounts of discretionary '-"
o
spending. \.;
• Luxury Goods Consumer. Luxury goods are items consumers purchase when
base needs, ... '-'
• Inferior Goods Consumer. Consumers with a low income purchase primarilY
inferior goods.
'-'.
Conclusion: A consumer is an important participant in the market. In case of \.,
exploitation, the rights of the consumer must be protected. There are six cons1Jl']1e1'
\_,
rights as mentioned in the regulatory Consumer Protection Act of 1986.
2(.;
25. What are the Rights of Consumers? Ans
Ans. A consumer is an important participant in the market. In case of consumer ~
exploitation, the rights of the consumer must be protected. belr
There are six broad consumer rights defined as per the Consumer Protection Act, 1936. rt\.,
These are: the
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LAW Uf- IUKIS
to Safety: This right is a protection against goods and services that are
'hazardous to life and property'. This particularly applies to
medicines,pharmaceuticals, foodstuffs, and automobiles. The right requires all such
products of critical nature to life and property to be carefully tested and validated
being marketed to the consumer.
Right to Information: This right mentions the need for consumers to be informed
aboutthe quality and quantity and price of goods, being sold. They must also have
accessto other information spcci tic to the product that they wish to consume.
ht to Choose: The consumer must have the right to choose between different
at competitive prices where many sellers sell similar products. This is to
id monopoly in the market.
to Seek Redressal: When a consumer feels exploited, he/she has the right to
a consumer court to tile a complaint. A consumer court is a forum that hears
complaint and provides justice to the party that has been hurt.
to be Heard: This right gives him/her due respect that his/her complaint will be
heard. The right empowers consumers to fearlessly voice their concerns and seek
... <,1-,,,,,,, in case they are exploited.
ht to Consumer Education
Consumers must be aware of their rights. Many consumers in India are not even
aware that they are protected by the Act. Unless they know, they cannot seek
justice when they are actually hurt or exploited.
redressal Mechanism
Consumer Forums
Consumer Courts
Consumer forums or consumer protection councils are organizations that help to
represent consumer interests. They guide consumers in the process of filing
complaints in the court when they are exploited and also help in spreading
consumer protection awareness .
.A consumer court is where the cases are actually presented and heard. It follows a
three-tier quasi-judicial system. District courts deal with cases up to 20 lakhs. A
state-level court deals with cases between 20 lakhs and 1 crore, while a national
consumer court deals with claims that exceed the value of 1 crore.
~
Doctrine of Strict Liability.
Strict liability concept emerged in the year 1868 after the famous case, Rylands
Fletcher. In this case the defendant has built a reservoir ignoring the fact that
it there is a disused mine shaft which will be destroyed due to making of a
;"........
,~..- and the same thing happened and all the water of the reservoir went into
plaintiffs mine. Due to this act plaintiff had to suffer huge loss as its whole mine
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25 LAW OF TORTS
Lb
was destr~yed so, he filed a case against the defendant. The defendant gave many e;
defences like he has taken proper measures. The court in its judgement said that the \.i<
making of the reservoir was itself an unnatural use of land also, the defendant was
dealing with dangerous thing so, the defendant is liable to pay compensation to the ~i
~2
plaintiff even if he takes proper care. This is the reason why this liability is also
known as Rylands or No fault liability ~\
the property of the defendant then the defendant is not liable to compensate the wit1;l
plaintiff for the loss caused to him. this COl
D NON- NATURAL USE :It means that if a stored water is used for a natural LialC
use like domestic purpose then a person cannot be held liable for any harm for the,
occurred due to it, but ifit is used for non- natural use like in the case ofRylands ~
Vs. Fletcher, the defendant used the land for making of reservoir to benefit its this fl'l~
mill and which created danger for others and due to which he was liable for the Priva~
loss occurred to the plaintiff.
EXCEPTIONS: ~~e~~
is lia(;
There are some exceptions of this concept which are:
exceptir
D DEFAULT OF THE PLAINTIFF: According to this exception, it is . types\,
that if the defendant takes all the reasonable care and the plaintiff due to h~s because
own fault suffers injury, then he himself is liable for the harm and defendant conc~
free from any charge. In the case of Ponting Vs. Noakes same thing was iIJ!r
established. . case kW
D ACT OF GOD : It is another exception, which states that if the loss IS
occurred by the act of god that means by any natural calamities like '-'
(J
c
(J
LAW OF TORTS
earthquake, etc. then nobody will be at fault because these things are beyond the
control of humans.
CONSENT OF PLAINTIFF :This exception is also known as Volenti Non
Fit Injuria. It says that if a person has the knowledge of the harm which could be
caused by during a particular act and still he did that act then he is liable for his
own act and not others.
ACT OF THE THIRD PARTY .According this, if harm is caused by an act
of stranger or third party and when there is no fault on the part of either the
plaintiff or defendant but due some act 0 f a stranger the loss occurs so in that
case, the defendant is not liable tor that act.
STATUTORY AUTHORITY' :The word 'statutory authority' means any
authority which governed by law and at the instructions of this authority a person
commits an act which led to damage to any person then that person who acted on
the instruction of the statutory authority will not be held liable because he
obligedto follow the demands of that authority.
elUSION: A strict Liability is the one in which defendant is liable to pay
, ,but he can take the defense of any of the exceptions .
This concept is similar to the Strict Liability, but is wider in scope and is
any exception which are there is the concept of Strict Liability. According to
concept, a person cannot take defences of the exception lead down in the Strict
. It says that if a person has damaged the property of another than it is liable
the act, he cannot escape from the liability.
This concept came in India after the M. C. Mehta Vs. Union of India case, in
case there was an industry named as Shri Ram Food & Fertilizers Industry
Limited Company in which Oleum Gas leaked due to which many people got
and some of them died. After this case Public Interest Litigation (PIL) was
to take action against this disaster. The Court in this case held that the industry
liableto a huge amount of compensation to the victims irrespective of the fact that
. of Strict Liability should be taken into consideration while deciding this
of cases. After this case, the concept of absolute Liability was introduced
"""'lU:'\~in a country like India the concept of Strict Liability is not suitable so, the
of Absolute Liability emerged. Further, Public Liability Insurance Act, 1991
introduced so, that the victim should get faster relief as after this case another
knownas Bhopal Gas Tragedy case which followed the same concept.
JB SERIES
27
the~lI
TyAi>
:h¥nt:
.We
• (II]
• Inti
W-
OC
• Ne,
'-iJ
tort
H:
·0
the
4.1{
Ii b
Esse~i
TheQJ
• ~E
?UJ
mjui
e(l1
·11
a'O,
• Actu
dcO
that j
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• ---------------------- ..
• LAW OF TORTS
i!O payis
ia ility
Part -B Answers
What is a Tort and write its essential elements.
·e tYpe. Ans. In simple words, a tort is a civil wrong. When an act committed by one person
f England
1I.e said
harms another person or injures his/her legal rights, The person committing the tort is
known as the tort feasor.
• In suits relating to torts, it is very essential for the injured party to show that
•
the harm or injury caused to him/her has a direct hearing to the cause.
Types of Torts
•
• Intentional tort
• Negligent tort
• • Intentional tort: If anyone commits or omits an act being fully aware that such
commission or omission will cause harm or inj ury to another person.
• • Negligent tort: When, on account of the negligence of one person, another person
suffers some harm or injury, the first person is said to have committed a negligent
• tort.
Eg: An accid~nt caused due to disobedience of traffic rules.
• Torts of strict liability: A person is deemed to be liable for a wrong regardless of
the question whether he/she had the intention to commit such wrong or not. The
case Law of Rylands v. Fletcher was an example relating to the tort of strict
liability.
,-,
.....
uU_"u ... Elements of Tort:
There are four essential elements that are required to constitute a tort. They are:
'. Existence of a duty of care: In order to bring a suit for a tort, it must be proved
that there existed a duty of care towards the injured party, which was breached
by the tortfeasor ( the person who committed wrong ). It is not necessary that the
injured party and the tort feasor have a direct connection for the duty of care to
exist, rather, the duty is imposed by operation oflaw.
Wrongful Commission or Omission of an Act :An act that is in violation of a law
can be suitably classified as a wrongful act. A wrongful act must also cause
actual harm or result in a legal injury to another person.
Actual Damage or Legal Injury: The two maxims, injuria sine
damno and damnum sine injuria, encapsulate the types of damage and/or injury
that fall under the scope of this constituent element of a tort.
JB SERIES
29
LAW OF TORTS
• The first maxim, injuria sine damno: It is literally translated as injury without
damage. An injury of this sort is considered as a tort and the injured party can
approach the courts for a remedy. v
The most interesting example of this maxim is the case of Ashby v. White, wherein ThIS'-'
White stopped Ashby from exercising his right to vote. Even though the candidate for In\..{
whom Ashby was to cast his vote won the election, the Court ruled that Ashby's legal form
rights had been infringed upon as it was a legal injury without damage. Fo'_'e
The second maxim, damnum sine injuria: It means damage without legal injury. sev+.
~(
Here, while actual damage or loss is suffered by the party, there is no infringement of canna
legal rights. Thus, in the absence of a legal injury. the injured party has no claim hir\."
whatsoever. • In
Case law: In the Gloucester Grammar School case. the defendant set up a school next ~
to the plaintiff school. Students from the latter flocked to the new school, thus
causing severe monetary losses to the plaintiff The Court held that no suit could lie ~i
here irrespective of the monetary damage as there was no legal right which was
V
violated by the defendant in setting up a school. pn
Remedies: ~
The law of torts also prescribes certain forms of legal remedies for injured parties,
such as damages, specific restitution of property and injunctions that are awarded by
.~
the Courts. Before awarding any relief to the claimant, the Court examines certain V
aspects of the liability by performing tests such as
IJ
• The test of directness bet~
• Test of foreseability attribnr,
.~
• Damnum Sine Injuria :Damnum sine tnjurta IS a Latin legal maxim which
basically means damage without injury. It means an actual loss which occurs
without the infringement of any legal rights.
Thisis because the mere loss of money or money's worth does not amount to any tort.
In order to constitute some tort, real violation of some rights must take place in the
formof legal damage. No liability can arise in such cases.
For example: let's say a person has been owning a stationery shop on a street for
severalyears. If his business rival opens a bigger stationery shop nearby, this person
cannot sue him for his diminishing profits. This is because no legal injury occurs to
him.
• Injuria Sine Damno :In contrast with damnum sine injuria. the principle of injuria
sine damno means an infringement of rights without actual losses. Since this leads
to infringement of rights, liability can arise even if no person suffers actual or
substantial losses.
For example: Trespassing of property is a serious violation of a person's right to
protect his property. In such cases, the trespasser is liable to pay compensation
even if he causes no real damage.
• Principle of Vicarious Liability: The general rule of tort liability is that the person
who causes damage must pay compensation. In certain cases, however, liability
can arise on third parties also. The law refers to this vicarious liability.
. In order for vicarious liability to arise, there should be some legal relationship
•between the defendant and the third party. In other words, the law must be able to
attributeand extend liability to the third party.
Forexample: The law of partnership recognizes that partners are agents of each other.
Therefore,one partner can be liable for the defaults of another.
Vicarious liability can also arise in the course of employment due to the master-
relationship between employers and employees. Ie., Master will be liable for
. hisservant's acts.
.• Volenti Non-Fit Injuria: Sometimes it may so happen that a person may suffer
damages when he consents to some act. A person who understands the risks he
may incur while doing something and still does it cannot seek compensation.
example: Imagine that a spectator suffered injuries after a cricket ball hit him on
head. The spectator cannot claim compensation from the batsman or any organizer
this case. This is because the law presumes that he was aware of these risks and still
to watch the match.
Liability and Absolute Liability: These two principles levy liabilities on
~'-''''''LI' and business ventures when their commercial activities cause damages to the
They basically state that liability in some cases should arise even in the absence
intentionor negligence.
J8 SERIES
31 LAW OF TORTS
\.r
expe:
• Strict liability: The rule of a strict liability says that if a business's commercia]
inVe
}, activities harm somebody, it should compensate him. This liability will arise even
the 0]
if it took all necessary precautions to prevent the damage. It also allows him to take
tre~(
certain defences
For example: In Rylands v. Fletcher, water from a person's mill entered and F~
Wilki
damaged his neighbour's mines. The court levied liability on the defendant even
fOl\.,1l
though it was his contractor who was at fault and not him.
conse
• Absolute liability: If the law imposes strict liability on a person, it also allows him exflwl
to take certain defences. For example, a defendant may say that the damage . of'p-o
occurred due to natural calamities beyond his control. DeM
In absolute liability, however, he cannot take any defence whatsoever and has to anti
pay compensation in all cases. This happens in cases of damages arising from. severe
hazardous activities. like the Bhopal Gas Disaster. stri\.,.,
30. Write in detail about fault. Court
dan~
Ans. Definition: A negligent or intentional failure to act reasonably or according
law or duty: an act or omission giving rise to a criminal indictment or a civil 1
lawsuit. liabhtt
fauV
Fault in Negligence: In Fault in Negligence to prove defendant's fault for liability :
Conch
the defendant must be in breach of a duty of care to the claimant. (case
-bl~
Donoghue v Stevenson ). It means that the defendant must do something that
some 1)
reasonable person would not do, or omit to do something that a reasonable \..,
would do.
The fault, then, is a failure to take reasonable steps to prevent ",aL"""~
harm to the person, that a reasonable man would foresee such risk.
Fault in Nuisance: If defendant has committed an actionable nuisance, then it ..
him from claiming that he took all reasonable precautions to prevent it. The ..,tncurr~,
V
procedural difference between negligence and nuisance is that the claimant ..Depend
have to prove that the defendant was at fault - court has to decide on that 1. I~
regard to the reasonable user and remoteness considerations. 2. U....
Fault in Defamation: The fault in defamation cases is simply the standard of ·1ntenh<
... ~
the person who made the defamatory statement used and is directly related .tort, \..;
type of plaintiff To define that fault questions like: was it a mistake? Was'
intentionally? Was it done maliciously? - have to be answered. Public
require malicious statement; private figures require a mere negligence
is false.
~.u..
""£'''---
expected to foresee the accident. However, in this case a principle was created that
. in trespass, the burden of disproving fault lay with the defendant; in negligence it is
the plaintiffs job to prove fault. As negligence continued to expand, cases involving
trespass were often decided on the same fault basis as negligence.
Fault in Wilkinson v Downton: In Wilkinson v Downton case plaintiff, Mrs
Wilkinson. suffered a violent shock to her nervous system. causing her to vomit and
for her hair to turn \\ hite and other more serious and permanent physical
consequences and incapacity to her as well as expense to her husband for medical
expenses. Like most of the above analysed torts, this case is fault-based; the burden
of proof on de fendants fault lay on the plaintiffs. Mrs Wilkinson had to show that:
Defendant acted intentionally or recklessly; and Defendant's conduct was extreme
and outrageous; and Defendant's act is the cause of the distress; and She suffers
severe emotional distress as a result of defendant's conduct.
strict liability : Ry lands v. Fletcher was the first English legal case in which the
Court found in favor of Fletcher and ordered Rylands to pay for all the property
damage to the mine.
Conclusion: The law of tort is not usually concerned with establishing who is at fault
blameworthy - in a particular action. In some torts the claimant will have to show
particular element of fault, in others he won't.
Law Garratt v. Dailey: In 1955, a young boy whose name was Brian pulled a
from underneath Ruth Garratt as she went to sit down. Ruth fell and broke her
because of Brian' s chair-pulling. Ruth filed a lawsuit against the family of Brian
,--- .....'I". to have acted intentionally, causing
·4. her personal injury. Although Brian did
intend to cause injury, the court found that the act resulted in the hip being
and awarded Ruth $11,000 in damages. Brian's family appealed on the
that children 5 years of age could not be held liable for an intentional tort.
JB SERIES
33
LAW OF TORTS
The court ruled that children can be held liable and that the intent element is in place
if the person knew with certainty that the act carries a risk of injury.
Intentional tort inc ludes: c1,-,i
Battery: When physically applying some force to another person's body in an 1. No
offensive manner that causes some harm is called battery. haW,
suffer
Assault: When one person' s act creates an apprehension in another person's mind
that such act is likely or intended to cause such harm is called Assault. wM
of rlqr
The difference between battery and assault is, in battery. physical contact is '--'
mandatory while in assault. physical contact is not mandatory as the purpose is
threaten not to harm. criV
reject!
False Imprisonment: It is the person's unlawful confinement without his will. It is an&.Ai
not necessary to place a person behind bars, a mere impossibility of escape from a hel,r 1
certain area against the person's will is sufficient to constitute false imprisonment ha~
wrong. It includes the use of physical force (actual expression of force is not always
In \.;
required), a physical barrier such as a locked room, invalid lise of legal authority.
defenc
False arrest is the part of false imprisonment that includes police detention of
pla\.,;i
person without legal authority. Malicious prosecution falls under the category of
suffen
false imprisonment.
exe\.4.:
Trespass: It is the intentional, unreasonable invasion of property. land, person or cas~
goods. The unreasonable interference can harass or harm the other person, however.
2.~n
slight it may be. The owner of the property's legal right is infringed because the
dif\_,:
misappropriation or exploitation of his right deprives him of his right to enjoy the
loss at
benefit of the property.
triv\.,:
Unintentional Tort: The defendant causes injury to the plaintiff in the case of
unintentional torture, but without any mala fide intention. It could be called an
unexpected accident. This was inadvertently done by the person who caused the Illu~
injury because he/she was not being careful. Such an individual may be described as . stel\J
negligent or reckless. In the case of unintentional tort, it may be noted that the' . B's fa,
is caused by the omission of the "duty of care" that a reasonable and prudent man the '-',
should have considered.
Wilkinson v. Downton: In this case the defendant joked that her husband
;~~
him.·T
encountered an accident and had been admitted to a hospital. She was shocked by
plain~
this news and fell seriously ill. She subsequently sued the defendant for "'''" .....
0--
under tort. The defendant claimed he never wanted to harm the plaintiff, but only cut llIus'_'
a joke. The court dismissed his claim, holding him liable. Here, the court Kcan 1
that mere intention was not an essential factor in tort. The defendant was aware will ~
the natural and probable consequences of his act which caused the plaintiff to suffer origit
damage. He was therefore liable, whether he intended to do so or not. 4. Agg
caus""
and it i:
the p",-,
LAW Uf- I()KI~
Contemptuous Damages : These are similar to the nominal damages but the only
e between the two is that in nominal damages the plaintiff suffers no actual
and in contemptuous damages, the plaintiff suffers actual damage but it is a
trivial(petty) one in which he does not deserve to be fully compensated.
If A's dog relieves himself and enters B's house and B accidentally
LU.. ,",U",UVJU.·
on it and is disgusted and thus, he brings a suit against A, the Court will rule in
. s favour but because of such a trivial nature of this case the damages awarded by
Court will be of a meagre amount .
. CompensatoryDamages: Compensatory damages are awarded to help the plaintiff
reach his original position at which he was before the tort was committed against
These damages are not awarded to punish the defendant but to restore the
to his previous situation.
~U<.4U\'IU: K takes T's bike and due to his rash driving the bike gets damaged. Here
can be awarded compensatory damages in which the amount for repairing the bike
.be payable to K by T so that the bike's condition can be restored back to its
state.
Aggravated Damages: These damages are awarded for the extra harm which is
to the plaintiff which cannot be compensated by the compensatory damages
it is given for factors such as the loss of self-esteem, pain and agony suffered by
plaintiff etc. which cannot be calculated in monetary terms
JB SERIES
35
...
133. What are the general defences to an action in tort?
~ Ans. In torts cases defence can be claimed. in two ways. They are
• The defendant can deny that the tort was committed or
• The defendant can deny on the grounds of legal sufficiency in the aIle
the plaintiff, even if a tort has been committed.
Some of the commonly known and recognized defences to any torts are:
1. Consent,
2. When plaintiff is the wrongdoer,
3. Inevitable accident,
4. Act of God,
5. Act in relation to Private Defence
6. Necessity
7. Act done in respect to statutory authority
CONSENT :Consent is usually expressed in law through the Latin phrase "~
nonfit injuria". Consent occurs when a plaintiff displays a willingness to
in the defendant's conduct. This consent can be express or implied.
Example: If any person is hit by the ball while watching a match in a
•
stadium, the general understanding here is that when the person bought the ticket
watch the match itself he agreed or consented to suffer any such damage or face
u
"
g
•
• 36
LAW OF TORTS
'.nllie such risks and so the players or stadium authorities are absolved from any sort of
liability arising out of such an accede
Is to him
~.vated Consent may not always excuse a defendant of liability. Sometimes consent is
ineffective under certain conditions. They are
•
which is
s_ld the
Ie of him '
• If the plaintiff lacks the capacity to consent.
• If the plaintiff is coerced into consenting.
•l"O
-ss and is
the
• If the plaintiff consents under false pretences.
WHEN PLAINTIFF IS THE WRONGDOER :This defence arises from the Latin
maxim "ex turpicausa non oritur action" which means no action arises from an
haCourt immoral cause. So an unlawful act of the plaintiff itself might lead to a valid delence
in torts.
e~f the
l1tepeat', After an evening of heavy drinking, the unlicensed and uninsured owner of a
motor-cycle drove the cycle on a public road in a reckless and dangerous manner
•
rWo the
S!f'fered
which the plaintiff, as pillion passenger. was found to have actively encouraged.
There was an accident in which the rider was killed and the plaintiff badly injured.
In the plaintiff s action in negligence, the judge dismissed the claim against the
defendant,
•
• VIS MAJOR OR 'ACT OF GOD' :An act of God is a defence used in cases of torts
when an event over which the defendant has no control over the accident occurs and
• the damage is caused by the forces of nature. In such cases, the defendant will not be
liable in tort law for such inadvertent damage.
In the case of Nichols v. Marshlandthe defendant has a number of artificial
•
lakes on his land. Heavy rain such as had never been witnessed in living memory
caused the banks of the lakes to burst and the escaping water carried away four
• bridges belonging to the plaintiff It was held that the plaintiffs bridges were swept
by an act of God and the defendant was not liable.
• shooting party when they had gone pheasant-shooting. A member of the party fired
at a distance but the bullet, after hitting a tree, rebounded into the plaintiffs eye.
•
"'~/en/l, .
,~pate
When the plaintiff sued it was held that the defendant was not liable in the light of
the circumstance of inevitable accident.
ACTS DONE FOR PRIVATE DEFENCE: To use this defence three conditions
need to be satisfied.
l !cket • Firstly, there must be a real and imminent threat to the defendant.
t.ttP • Also, it needs to be shown that the force used was only for the purpose of
protection or private defence and not for revenge.
•
faceanY
JB SERIES
37 LAW OF TORTS
T j6
• There should be no mala fide or bad intention involved for a successful private
defence claim.
1. T
'"
....,1
Suppose a person installs an electric wired fence around his property to 2· U
keep away trespassers without any warning signs at all. He is not only doing an act 3. T
which is grossly negligent but also he doesn't have the right to claim private defence 4.'-f
as the means used are way more dangerous than required.
Vi\..,,-
NECESSITY: It is often said that necessity knows no law. This defence has been Sf" \\
·"',
recognized on the principle ofSalllsPoplIliSupremaLex i.e., the welfare of the people
is the Supreme Law.
Cae law: Surroco v. Geary i~ a case bused on very similar facts. Wildfires had swept • \.11
through San Francisco around the time when this incident occurred, destroying
houses and businesses. ·
•
~(
V
Surocco's house was directly in the path of the fire, and he was racing to get his
possessions out of the house as quickly as possible before the house was consumed.
vkl
Geary, the mayor of San Francisco. ordered the fire department to demolish ar10
Surocco's house so that the fire would not spread any further into the
neighbourhood. St~
The court, however, found that the public necessity defence applied because the the G
damage to the city would have been far worse if Geary had not given that order. Sta~
ACT DONE IN RESPECT TO STATUTORY AUTHORITY :When the ofV
orruss
commission of a tort, is authorized by a statute the injured person is remediless ..
\.,
For example :If there is a railway line near your house and the noises of the train
passing disturbs then you have no remedy because the construction and the use of Sec{~
the railway is authorized under a statute. However, this does not give the authorities sec~
the license to do what they want unnecessarily; they must act in a reasonable l~
manner. It is for this reason that we see that there are certain guidelines that need to 2. f
be followed during construction of public transport facilities.
Sove '-'
Iial\..,
34. State's Vicarious Liability for the torts perpetrated by its employees. For e
Explain in detail.
Ans. The whole theory of the State's Vicarious Liability for the torts perpetrated by
.'1
.\.t
its employees is based on two principles, namely-
• Respondent Superior
• Qui facit per alium facit per se
.~
• I
Vicarious Liability: Usually we assume that the person himself gets punished ifhe No~
commits any wrong. But under the Law of Torts, there is a concept titled VicarioUS the \..,
Liability. Under Vicarious Liability, a person is held liable for the acts of another. Justif
The Essential elements of vicarious liability are as follows - \J
There
.\.r
--
LAW OF- rUKIS
t. 1. There should be some relationship between the person who committed a wrong
and the other person.
2. Both the persons should be involved in the joint activity.
~o
3. The wrongful act must be related to the relationship in a certain way.
I; 4. The wrong should be done within the course of employment.
•;!-
been
Vicarious Liability is related to the Legal maxim "Qui facit per alium facit per
se" which means that "he who acts through another does the act himself"
• Principal and Agent
• Master and Servant
• Servant and Independent Contractor
• Vicarious Liability of State
Vicarious Liability of State got evolved by the East India Company in 1858. But the
article 300 came into effect from 1950.
In India, while there is no clear law dealing with the vicarious liability of the
State, Article 300 of the Indian Constitution specifies that the union of India or
the Government of State can sue and be sued like any ordinary person
State's liability for the tortious actions of its employees is called as tortious liability
of the State. State is liable for the acts of negligence, wrongful execution and
omission or commission either voluntarily or involuntarily.
In the case of Peninsular and Oriental Steam Navigation Company v.
Secretary of State for India, the Supreme Court classified the functions of
secretary of state into two -
1. Sovereign functions
2. Non-Sovereign functions
Sovereign Functions: These are the functions of the state for which the state is not
•
'Yet
liable under any provision for the wrongful acts of its employees.
For example:
~-
•
• Functions like defence activities,
• Preserving armed forces,
• Maintaining peace and war
•••
ifhe
• Diplomacy are some of the sovereign functions for which the state is not liable.
Non Sovereign Functions: These are the functions of the state which are other than
JB SERIES
39
LAW OF TORTS
• Government motivates its employee to take reasonable care in order to avoid was
'-'
accidents which may cause some danger to the third person. This motivation is ~
because the Government is liable to pay any compensation for the acts of the mall
employee. h~g
• State gets some profits by the acts of the employee. So, it should hold up losses ~r
incurred by the employee's acts. Plair
• 1\11the acts done by the employee in the course of employment are done under I3\.f t
the State' s order. So, ultimately the acts are the State's own acts. ofl'ic,
• As the State has the power to appoint and dismiss its employees, it is the duty of T~"
the Stat,e to check the work done by its employees. ~~t
III ex,
Landmark cases
• \..t"i
• Peninsular and Oriental Steam Navigation Company v. Secretary of State
for India
This case is a pre-constitution case which prescribed the difference between
:~!?
se\.l·(
sovereign and non- sovereign functions of the state. right
The simple details in this case are that the company's servant was on his way to po~
Calcutta in a carriage pulled by a couple of horses. An accident took place when the track.
wagon was travelling through the Government's dockyard. Some of the workers of bY~J
the Government Dockyard were carrying heavy iron rods to repair a steamer. Th ~~ ~
However these workers dropped the iron rods, the noise of which affected one of the polIce
horses of the Plaintiff.
reav
The company filed a suit against the Secretary of State for India to get relief for the railwa
damages. The Supreme Court of Calcutta held that the Secretary of State is liable for ab.~
the damages. This case is the first case which brought upon the difference between comoe
sovereign and Non- sovereign functions of the state. As the maintenance of Leg\.!
Dockyard is a non- sovereign function, Government was held liable. com=u
• State of Rajastan v. Vidyawati (wr~i
Facts of the case are that a person named Lokumal was employed by the State of CotLn
Rajasthan as a temporary driver for a Government car. After the completion ofthe Gove-r
repairs for car, during his return from the workshop, he knocked down a citizen legi~
named Jagdishlal (Plaintift). Jagdishlal was severely injured and he and r:
subsequently. abov~
The plaintiffs wife (widow) named Vidyawati and her minor daughter, through her
35. ~
mother as next friend, sued Lokumal and the State of Rajasthan for the relief
Ans.'-t
Supreme Court held that the State was liable to pay the damages incurred as the act
of driver was not a sovereign function. with the
2019\,(.
• KasturiIalRalia Ram v. State of UP July ~'"'I
Facts of this case are that the Plaintiff was arrested by the UP police officers on '-'
suspicion of having stolen property. On further investigation a huge quantity of gold
•
• LAW OF TORTS
was found and the same was seized by the police officials. Finally, he was released,
twvoid
Im onis. but the gold was not returned to him as the Head Constable in charge of the
malkhana absconded with the gold. The Plaintiff then sued the State of UP to return
.fthe
his gold or to pay damages for the same.
Supreme Court said that, it is the negligence of the police officers in dealing with the
Asses
•
Plaintiffs property and is violative of the UP Police Regulations.
But the court finally contended that the State is not liable to pay because the police
:_•t
ie under
officers acted negligently while they are executing their duty in arresting a person.
These powers like arresting a person and seizing property are sovereign powers. The
y of· contention of the Supreme Court was' based on the statutory power and the act done
in exercise of the sovereign function.
.the
~teof Conclusion :Before 1858, there was no legislation regarding the liability of
Government for the wrongful acts of its subjects. The decision taken to formulate
l cItlZen legislation for this purpose is indeed superior. As our nation is a sovereign, secular
I.
I.died and democratic nation, this legislation should be there in order to protect all the
above said words.
her
•
35. What are the salient features of the Consumer Protection Act, 1986.
s the act Ans. The Consumer Protection Act was initially enacted in 1986 by the Parliament
••
icers on
with the purpose of protecting the interests of consumers of the country. In the year
2019 the three-decade-old Act was replaced by the Consumer Protection Act, on 20th
July 2019. The new Act was evidently a need of the hour.
.gold
JB SERIES
41
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42
LAW OF TORTS
~
The new Act is designed to help customers and it endeavours to overcome the • r
problems which are faced in providing the basic rights of consumers of e-commerce, ~
which happens to be a major sector. They are e
• The right to safety 4
• Right to Choose ....;
s
• Right to be informed ,-,I
• Right to consumer education JT
• Right to be heard \.tt
• ' •t
• Right to seek redressal '-'pI
The new Act helps in protecting these basic rights by application of new methods
\,,'
and proced ures
\\
Definition of' consumer' ~,
1;~
• The Consumer Protection Act, 2019 has expanded the definition of 'consumer'
that initially was limited to buying goods and services. and did not include online ~.
purchases or teleshopping. Th\.,
• The new definition under the 2019 Act inc ludes the description of online consu:
transactions, offline tractions, teleshopping. multi-level marketing, and direct gocY
selling. both c
The following are the features of the Consumer Protection Act, 1986: _ 36. ,~
'-'
• The Act provides for establishing three tier consumer dispute redressal Ans~l
machinery at the national, state and district level. These redressal mechanism
\.,.
helps to safeguard the rights of the consumers. These redressal machineries are
available in three forms- district forum. state forum and national forum. Dut1;
The raj
• District Forum- Each and every district has a District Consumer Disputes
upht\j
Redressal forum. According to section 11 of this act, this forum has the
jurisdiction to entertain complaints and disputes only where the value of the duty t
value of the goods and services and the value of the compensation claimed does prerr\.r
also ha
not exceed 20 Lakh Rupees. The district forum has the same powers as that ofa
civil court in the following matters- V
• In the summoning and enforcing of attendance of any defendant or witness. • 1\.i
• In examining the witness on an oath. • Lire
~
• In receiving the evidence on affidavit.
defent'
• In other matters which may be prescribed. proce~
• Demanding of the report of the concerned analysis.
• State Forum- Each and every state has a state forum. According to Section 17 ~~:e
of this act, the pecuniary jurisdiction of a state commission for entertaining '-'
complaint or issues where the value of goods and services and the compensation
claimed exceeds 20 Lakh rupees but not more than 1 Crore rupees. ...
LAW OF TORTS
• National Forum- This forum was formed in the year] 988. According to
Section 21 of the act, the pecuniary jurisdiction of a national commission for
.rce,
• entertaining complaints where the value of goods and the compensation claimed
exceeds I Crore Rupees.
• • It applies to all goods and services- This act has an extent to all goods and
services given and offered by a service provider. According to Section 2(7) of
the sale of goods act. .goods' means every kind of mov able property other than
money. This can include stocks, shares and things attached to or forming part of
the land which are agreed to be sold or in a contract to be sold.
1.•
• It covers all sectors' whether private, public or person. This act extends to all
providers at all lcve ls. It may be a private sector who is gi\ ing services.
For example, the multinational companies like Apple Inc .. Samsung Co., Ford,
•1.' Woodland. Nike etc. It may be a public sector like IDBI ban". Lire insurance
Corporation ofIndia (LIC) or ration dealers. It can be an individual person too
like the shopkeepers or the service providers. All of the III are termed as 'service
providers' .
•
nline
Thus, the existence of this act helped the consumers to a large extent. Today, the
consumer knows their rights and thus the service providers focus on the quality of
*•
lirect goods and services and hence it maintains a good and healthy relationship between
both customers and service providers.
.*
s are
Ans. It deals with the liability or obligations towards lawful visitors, trespassers, and
Licencees.
•• • The invitees
• Licensees.
In the case oflndermaur v. Dames (1866), the plaintiff had entered the
• defendant's premises with permission for examining a gas regulator. During this
process, he fell through an unfenced opening on the floor and thereafter injured
• himself This case established three categories, trespassers, licensees and invitees,
•
t17 treated differently in accordance with common law.
Later, a fourth category of contractual entrants were introduced as well.
• JB SERIES
43 LAW OF TORTS
For example: If the occupier gave an independent contractor a certain work after
knowing his competency he could not be held liable for any accidents caused dueto
work organised by independent contractors. its re
e~
Therefore, a licensee enters premises with the owner" s express or implied consen~
for his own purpose. It is the duty of the occupier to make the licensee aware of any D\.f
latest problems or defects. But the occupier is not liable ifhe himselfwas not aware and
of such danger. eJ\.,
He would be liable even for an unusual danger that he was aware of or had FC<
an obligation or knowing about it. Deat
Duty of care towards trespassers: A trespasser, is a person entering the boundaries m\.li
of the occupier without his consent still owes a duty of care from the occupier tort i
covered by the common law and the Occupiers Liability Act. 1984 but not ri~
the Occupiers Liability Act, 1957 IIU
The occupier can instil reasonable methods for preventing entrance of trespassers If A
but does not have the right to cause an intentional injury for no reason. The occupier a~
of the premises owes a duty of ordinary care, such as die!
• Reasonable warnings issued by some sort of an indication or board Exce
• Making the person aware of taking such a risk of entering as such PU
The
Duty towards children: Trespassers could also include children who by some reason. \.,;
or allurement could want or try to enter such a property. As r
Eg: In the case of Robert Addie & Sons (Collieries) Ltd v Dumbreck, a d\.)
belonging to a colliery company, surrounded by large hedges, had a haulage II/us.
situated in it. The gaps between the hedges were covered preventing entry. Even If~
then Children would often enter and play in it. It was also known to be a shortcut r~
a local railway station, and the colliery company was aware of it and had often tried.
Simi
to warn people about it. One day, getting crushed by the system, a four-year-old boy
v4t:
got killed.
The father of the boy filed a case against the company. But it was held
the boy was a trespasser, who at his own risk had entered the premises of the '"'v... ··/
~iG
and so the company owed no duty of protection against him or trespassers. It~
defei
In the case of Mourton v. Poulter (1930), the defendant, a landowner,
aware of possible children trespassing, began cutting an Elm tree nearby without lilt::
warning the children. This in turn injured a child standing near it. It was held that the a~
defendant was liable for the injury of the child and he had acted negligently. dies
Therefore, the occupier has to take reasonable steps to prevent the child frolll E~
any danger. Children have to be protected from dangers, than adults because the T\,
children are not capable of forming decisions and taking steps to act in that motnen~ As r
where the adult can perfectly and immediately do in that particular situation or co~
circumstances.
pee
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\,..
LAW OF TORTS
:.r•
Death of the parties :Acliopersonalisl11oritur cum persona this is the important
janes maxim, it means if the person who commits a tort or the person against whom the
tort is committed dies, the personal right or the right to receive the damages or the
right of action dies with the person.
,
Illustration
If A files a case against the act of tort done by B. If A dies during the course of trial
and the case is still pending before the court. Due to the death of the A. the tort gets
discharged, as the right of action of A dies with him only.
Exceptions to the maxim of 'Actiopersonalismoritor cum persona' with respect to
Petitioner
The Legal Representative Suits Act, 1885
As per this Act, the legal representative or the executors of any person, after his
death can represent the deceased person in the court of law.
Illustration:
If A died during the procedure of trial of court. His legal heir or representative can
represent him in the court oflaw.
Similarly, in different laws/act like Fatal accident act, the Indian Succession Act,
Workmen Compensation Act etc. the representative of the plaintiff can represent
him in the court of law.
• Death of the person who commits tort i.e. Defendant
It means the person who commits the act of tort against any other person i.e. the
defendant dies, the tort gets discharged.
Illustration :If Ram commits the act of tort against Geeta, if Geeta files a complaint
., against Ram, but if during the course of trial Ram died, then his right of action also
dies with him i.e. the discharge of tort.
Exception to the maxim with respect to Defendant.
The Legal Representative Suits Act, 1885-
As per this act, if any person involved in any type of tortious act, died during the
....COurseof the trial. The right of action passes to the legal representative of that
JB SERIES
LAW OF TORTS
'w
Illustration :If A does an act of trespass to the good against B in past. Now if A dies Illus
and it is proved that he was liable for damaging B's good. So the damages have to be a~1
paid by his legal representative. of A,
Similarly, in different laws/act like the Fatal Accident Act, Indian Succession Act, si~
Workmen Compensation Act etc. The of the defendant has to represent him in the A~1
court oflaw The I
By Waiver :The concept of' waiver is when a person has more than one remedy p~
available to him, he has to elect one of them. He cannot apply for both the remedie! 1I"'~1
except in the case of defamation and assault. i.e~r
Illustration :If A files a case against B that B has committed a tort against A. If A so~
conse
has the remedy in both tort and contract law, now he has to choose one between
them. va\..j.
The main two principles lying in the doctrine of Waiver are: Relf'a
In Express waiver, the person expressly communicates about his choice in the court
oflaw.
~:
The\.I
Illustration :If A file a case and he has the remedy in both, contract as well as Tort. If the
When the court asks him he has to communicate his choice to the court. then~
In the Implied form of waiver, the person impliedly communicates about his choice IIluSC
for which remedy he is applying.
If a pe
Illustration; If A has two remedies available to him like one under contract and one usinj.,
under Tort. if he applies for Contract, it becomes clear, he elects the remedy under himsel:
the contract.
JUdg~
Accord and Satis faction:
In th~
Concept of accord means when the parties of the tort i.e. the person who commits once th
the tort and the person against whom the tort has been committed, come to an thes~
agreement and settle the dispute. Such an agreement is known as Accord. In
term, it means settling the issue by accepting some consideration in lieu of the . The "fw
of action. Judica{,
causeu
Satisfaction means the actual payment of consideration agreed by both, the person
who commits a tort and the one against whom the tort committed. /[/ustri'.
previolP'
When both the accord and satisfaction once completed, it results in the dischargeof
tort and the dispute does not proceed in a court ofIaw.
...,
~
"
Q
••
---
f.dies
ve to be
i..J:\vv
Illustration: If A dies due to injury caused by B's car. If A's family comes to an
0r:
agreement that B will pay Rs. 1,50,000 as compensation to them, that's the situation
lUI'. I,)
•
<&Act
n~ th~
of Accord. When they received the actual payment of 1,50,000Rs. from B, that's the
situation of Satisfaction. So, by settling the issue and accepting some consideration
A's family lost their right of action and the act of tort discharged.
•
The only condition in the concept of Accord and Satisfaction is the consent of the
party should be free and not from fraud, coercion or undue influence.
remedy
e.dies
Illustration: If A, a son of a successful businessman brutally hit one or his
servant
i.e. trespass to the body and if A tries to make his servant enter into accord by using
some type of undue influence on him. Due to that influence, the servant gave his
'If A consent, this is not considered as free consent and the accord and satisfaction arc not
.,een valid.
• Release
A Release means giving up the right to the action. It means when a person by his
• own choice discharged the tort. This right is only provided to the person against
l.
o~llow whom the wrong has been done.
Illustration
can Situation 1: A is the person against whom B does any act of Tort and if A, by his
case. A
•
free consent want to release B from the liability, he can do so.
Situation 2: A is the person against whom Band C both commit an act of tort and A
••
.he court
by his choice release B from the liability, this does not mean that C is also released
from his liability .
The release should be voluntary and given by free consent from the injured person.
If the consent is taken by coercion, undue influence, or any other unlawful means
it Tort then that release should not be counted as a release and the tort is not discharged.
Illustration
If a person is a police inspector, commits an act of tort against another person. By
~one using his position and by threat, take the consent of the injured person and release
;;mdtt himself from the liability, that release is not a valid release.
judgement
• In this method, the discharge of tort happens by the judgement given by the court. If
once the court gives judgement on the matter, the tort gets discharged, no appeal for
the same act of tort can be claimed for the same remedy in the court of law.
The concept of this method of discharge of tort is based on the legal maxim of Res-
Judicata, it means, if any cause of action decided previously by the court, the same
cause of action should not be entertained by the court twice.
Illustration: If A gets the remedy against B for the accident committed by him
previously by the judgement of the court. Later he found that he needs to go through
~ JB SERIES
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•
47
a further operation. He cannot claim another remedy for the same again in the
of law.
gets 0\
In Fitter v. Veal, (1701 12 Mod. Rep. 542)
Jllu'Irr.
In this case, the plaintiff files a case against the defendant demanding damages
against the act of assault by the defendant and finally he gets the remedy from
if t\J1
as he I(
defendant as the court of law allows the remedy to him. Later he discovered that ..ConWu
has to go through a number or surgeries. He filed another petition against
defendant demanding more remedy against the act of assault again in the court
law.
.
The court denied the petition and state that, If once court gives judgement on
matter, no further appeal for the same act of tort can be filed in the court of I iti
the tort gets discharged. by It.;t
tort bee
Exceptions
• If the petition was between the same party but is for different remedy
action taken in respect to the violation of another right. Then the petition
"
allowed.
In Brunsden v. Humphrey:
In this case, the plaintiff was a cab driver and already received co
against the damage to his cab. Later discovered, due to the injury caused
accident, he got a fracture in his hand. He has the right to apply for the
against the trespass to his body as well. .
• If the person who is liable for the act previously does the same act another
Illustration :If A commits the tort of trespass against B previously and held li P\.f
the court of law. If he again commits the same crime against B. If A plea
that the court cannot punish him for the same offence twice. The defence is not
because this case was considered as a fresh one.
.~ or u
~~
Acquiescence
In this method, the tort gets discharged because of the incapacity of the
himself i.e. if he has no time to go to court, no money to pay the court fees,
h"
was
other incapacity. When any person is entitled to enforce his right, and he · ow~
T'"
enforce his right for a long time, this makes other party waived from his liabi
us~
Illustration: If A is entitled to enforce his right against B. If A neglects to
his right for a long time, it automatically waived B from his liability.
...,
wet:
Law of limitation n<c.J
Under this method the tort gets dismissed due to the limitation i.e. actie
prescribed time limit to file the case gets over, in this situation the tort cl'\.;
dismissed and no person is entitled to enforce his right. thiru
bu'"
•
~
• LAW OF TORTS
Like, in the case of false imprisonment or libel the limit to file a case is 1 year, in
t.court
case of trespass to immovable property, the limit set is 3 years etc after the time limit
•
_ages
from the
gets over, no person can enforce his/her right.
Illustration: If a tort of trespass to the property has been committed by B against A,
if A fails to apply against it within 3 years in the court of law, then he cannot apply.
as he lost his right to apply due to limitation.
(_at he
.rt
ainst the
of
Conclusion
A tort is an act/conduct that is twisted. It means the violation of a legal right of a
. person by the act of the other person i.e. the breach of the legal right of the other
person. But the right of action of the party can become discharged in certain
conditions like the death of any of the party. by Waiver, by Accord and Satisfaction.
by Release, or by the judgement of the court of law. Through the above methods, the
tort becomes discharge and no remedy will lie for that.
JB SERIES
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49 50
-~
• Breach of Duty to take care .Its not enough for a plaintiff to prove that the \
defendant owed him a duty of care but he must also establish that the defendant
breached his duty to the plaintiff. In simple terms, it means non-observance ofa 11
standard of care. '-'a'
In the case of Ramesh Kumar Navakvs Union of India, The Postal Authorities V)J
failed to maintain the compound wal] or a post office in good condition. As a Il(
result the wall collapsed ( tell) and the defendant sustained injuries. It was held \.f)
that postal authorities were liable since that had a duty to maintain the post office
premises and due to their breach or duty to do so, the collapse occurred. Hence
.\.i
w.
they were liable to pay compensation.
• Actual cause or cause in fact: In this scenario, the plaintiff who is suing the m;
defendant for negligence has the liability to prove is that the defendant' ~(
violation of duty was the actual cause of the damages incurred by him. J'i(
For example :When a bus strikes a car, the bus driver's actions are the actual
cause of the accident.
¥h
\.I.;;
• Proximate cause :Proximate calise means the cause that the law recognizes its
the primary cause of the injury. A defendant in a negligence case is
responsible for those damages that the defendant could have foreseen through r-r'
actions.
~~
In the case of Palsgrafvs Long Island Railroad Co, A man was h
to catch a train and was carrying a packed item with him. The employees U
con
railway saw the man who was attempting to board the train and thought that
was struggling to do so. An employee on the rail car attempted to pull him'
the train while the other employee who was on the platform attempted to
him to board the train. Due to the actions of the employees, the man dropped
package. Which had contained fireworks, and exploded when it hit the rails.
,~
\-;J
hit another passenger, Ms.Palsgraf, who then sued the railway company. cate
court held that Ms.Palsgraf was not entitled to damages because the relati rv -
between the action of the employees and the injuries caused to him were ILtt
direct enough. Any prudent person who was in the position of the d~:
employee could not have been expected to know that the package
fireworks and that attempting to assist the man to board the train would ~p.
the chain of events which lead to Ms.Palsgraf's injuries. aU
• Consequential harm to the plaintiff: Proving that the defendant
dele]
exercise reasonable care is not enough. It should also be proved the fai
u1(..·,
the defendant to exercise reasonable care coun
bet.
The consequential harm may fall into the following classes»
a) Bodily harm • Inr:j
b)Harm to the reputation negTi:
c) Harm to property ex~
d) Financial Loss accid,
e)Mental Harm. '-'
•
:•.
dant
LAW OF TORTS
When such damage/ harm is proved, the defendant is bound to compensate the
plaintiff for the damages occurred.
•'il In the case of Joseph vsDr. George Moonjely(l994) The Kerela high court
awarded damages amounting to Rs 1,60,000 against a surgeon for performing an
operation on a 24-year-old girl without following proper medical procedures and
not even administering local anaesthesia.
~
Defenses available in a suit for negligence
fe • Contributory negligence by the plaintiff :Contrihutory negligence means that
•
ence when the immediate cause of the damage is the negligence of the plaintiff
himself the plaintiff cannot sue the defendant for damages. It is based on the
maxim volenti non fit iniuria which states that i I' someone willingly places
themselves in a position which might result in harm. they are not entitled to
claim for damages caused by such harm.
The burden of proving contributory negligence rests on the defendant in the first
instance and in the absence of such evidence. the plaintiff is not bound to prove
its non-existence
In the case of Shelton Vs L & W Railway (1946), while the plaintiff was crossing
a railway line, a servant of the railway company who was in charge of crossing
shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear
the warning and was consequently injured. The court held that this amounted to
contributory negligence by him.
• An Act of God :An Act of God is a direct, violent and sudden act of nature
which by any amount of human foresight could have been foreseen and if
foreseen could not by any amount of human care and skill have been resisted.
Thus such acts which are caused by the basic forces of nature come under this
category. For example storm, tempest, extraordinary high tide, extraordinary
rainfall etc.
If the cause of injury or death of a person is due to the happening of a natural
disaster, then the defendant will not be liable for the same provided that he
proves the same in the court of law. This particular defence was talked in the
case of Nichols v. Marsland (1876) in which the defendant had a series of
artificial lakes on his land. There had been no negligence on the part of the
defendant in the construction' and maintenance of the artificial lakes. Due to
unpredictable heavy rain, some of the reservoirs burst and swept away four
country bridges. It was held by the court that the defendant could not be said to
be liable since the water escaped by the act of God.
• Inevitable Accident :An inevitable accident can also be called as a defense of
negligence and refers to an accident that had no chance of being prevented by the
exercise of ordinary care, caution, and skill. It means a physically unavoidable
accident.
JB SERIES
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51 LAW OF TORTS
"
:'u.
\i.
In the case of Brown v. Kendal (J 850) the plaintiff's and defendant dogs were
fighting and their owners attempted to separate them. In an effort to do so, ~
Defendant beat the dogs with a stick and accidentally injured the Plaintiff,
severely injuring him in the eye. The Plaintiff brought suit against the Defendant
for assault and battery. It was held that the injury of the plaintiff was as a result
or an inevitable accident.
"
•
Conclusion:
As discussed negligence is of two types. civil and criminal and each has various
repercussions. In order to prove that an act was negligent, it is necessary to prove all •
the essentials namely duty, breach of duty. damages and actual and proximate cause. ~
v
V
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•
p~
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b<u
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fo'-'
bee a
U
3.
be 0\1
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•
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•
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Q
52 LAVV ut- I UK I~
Part - CAnswers
1. X' published a mistaken statement that 'Y' has given birth to twins.
Actually 'Y' is just married 2 months back. Explain whether 'X' is liable for
any tort or not.
Facts of the case:
• X' published a mistaken statement that 'Y' has given birth to twins.
• Actually 'Y: is just married 2 months back.
Issues of the case:
• Is 'X' liable for publishing such mistaken statement'?
• Principle: This case is similar to the case of Ritchie & Co
Facts of the case:
• Ritchie & Co the defendant by mistake published a statement that the
plaintiff had given birth to twins in good faith. The reality of the matter was
that the plaintiff got married just two months before. The defendant was held
liable for the offence of defamation and the element of good faith is immaterial
in such cases.
• Judgement: Yes, based on the above case judgement in the given case also '
X' is liable for tort of publishing such mistaken statement
2. 'X' has given his car to 'Y' for a drive. 'Y' commits accident. Discuss
whether 'X' is liable or not.
Facts of the case:
• 'X' has given his car to 'Y' for a drive.
• 'Y' commits accident.
• Issues of the case:
Is 'X' liable for accident committed by his friend 'Y' ?
Principle: If anyone lends his I her car to his Iher friend and that friend commits an
accident insurance coverage attaches to the vehicle and its driver. Therefore, a car
owner is not liable for any accident that a friend, family member, or other
borrower causes while operating the owner's car.
Judgement: As per the above principle in the given case 'X' is not liable directly
for the accident committed by his friend 'Y' but insurance company will pay
because car is insured on 'X' 's name.
3. 'Y' has written a libellous letter addressed to 'X', knowing that letter will
be opened by the clerk. Discuss whether it amounts to defamation or not.
JB SERIES
J.: :.'il,1
,),~
{'
1~
, '-'
53 LAW OF TORTS
:J"t
~
Principle: Under the law of defamation , publication is the communication Or Prir
making known by one person ( The publisher) to another ( the third party) of \..6
defamatory matters about and concerning the person defamed. It is not confined in pers
printing and distribution of books I newspapers Imagazines. If the Words ~J
complained of have been told /disclosed I disseminated ( in written or oral fonn) TJ,.t
to a third party. those words are considered to have been published. To establish a t~t
claim for defamation, the plaintiff has to prove publication ofthe defamatory words ~
by the defendant. JUdi
~l
Judgement: Yes as per the above principle in the given case a libellous letter proi
written by 'Y' addressed to 'X', knowing that letter will be opened by the clerk
amounts to defamation.
6. 'X'
'-'
M
4. 'X' has saving account in SBH - Ramakrishnapuram Branch, Nagole. Bank
Manager refused to honour cheque presented by 'X'. Though sufficient funds
are in the 'X' account - Whether Bank Manager is liable or not?
Facts of the case:
• 'X' has saving account in SBH - Ramakrishnapuram Branch, Nagole.
~
• Bank Manager refused to honour cheque presented by ·X'.
• Bank Manager did so though there are sufficient funds in 'X' s account. PriCi
Issues of the case: TJ-
\.Ii
• Is Bank Manager liable for refusing to honour the cheque? fOJ
Principle: A banker has a statutory obligation to honour his customer's cheques \-e
unless he has valid reasons to dishonour it. If dis honouring of a cheque is due to the M,
mistake or negligence of the Banker or any of his employees, then he attracts ~
liability. This is referred to as wrongful dishonour of a cheque and the banker who
~1
dishonours the cheque intentional1y without any valid reason or by mistake or due to
negligence is liable to compensate for the loss suffered by the customer.
Judgement : Yes .As per the above principle in the given case
Ramakrishnapuram Branch, Bank Manager Nagole is liable for dishonouring
cheque.
SBH
Judg,-,
,
He
~.
5. 'X' a firm member of jewellers of Hyderabad left to Bangalore for ~""'"'''I'. doctor
gold and silver. He was taken into custody by Bangalore police on sUS.....,""~..• inter~
Later, on enquiry, left him. Whether 'X' has a remedy or not.
Facts of the case: 7.A~
• 'X' a firm member of jewellers of Hyderabad left to Bangalore for :,\[.,JjIJ'Z::>.
prt-::
gold and silver. Hanft
• He was taken into custody by Bangalore police on suspicion. Later, Fact..
enquiry, left him. • j
.~
c
.•_ .)4 LMVVU' IUf\I,)
6. 'X' was suffering from dreadful disease Aids. 'Y' family doctor disclosed this
fact to 'Z' relative of 'X'. Whether Doctor is liable or not.
Facts of the case:
• 'X' was suffering from dreadful disease Aids.
• 'Y' family doctor disclosed this fact to '2' relative of ·X·.
Issues of the case:
• Is his family doctor liable or disclosing his patient's AIDs to relative of ' X ?
Principle: Right of Confidentiality:
The right not to disclose a patient's information has its sources from the Greek
Hippocratic oath which has been enshrined in the Code of Medical Ethics
formed by The Medical Council of India .with the previous sanction of the
Central Government under Section- 22A read with Section-33(m) of the Indian
Medical Council (Amendment Act) 1964.
The code carves out an exception that doctor can disclose information for the
public interest.
Hence, relying on Code of Medical Ethics as an exception to the rule of
confidentiality, the court held that in certain cases where specific people might
be endangered if the information is not disclosed, the doctor can disclose the
information.
Judgement : Based on the above principle in the given case also the the family
doctor 'X' also not liable for disclosing to his patient's relative for the public
interest.
7. A trespasser knew the presence of a fierce dog in 'B's house. A entered the
premises and was attacked by the dog, he sustained injuries. Whether 'B' is
liable or not?
Facts of the case:
• A trespasser knew the presence ofa fierce dog in 'B's house.
• A entered the premises and was attacked by the dog, he sustained injuries
Issues of the case:
JB SERIES
55 LAW OF TORTS
,
~
• Is 'B' liable or not foe A's injuries
<\_,t
Principle: In most jurisdictions, whether the house owner has a "Beware of Dog" lake
sign posted or not. he will be liable for any damage to humans or property that Your tA..t
dog causes. hild
Under the law, a trespasser is basically someone who comes onto property owned by ~e
another without hav ing permission to do so. When it comes to liability, with very
J~l
few exceptions. a dog owner is not responsible / liable for a dog bite to a trespasser. liab
Judgement: As per the above principle in the given case' B' the house owner is not
liable for his dog attack on trespasser.
'-'
l~~
8. 'X' was travelling by RTC bus, resting her elbow on the window sill.
Truck coming from opposite side hit her and as a result she met with injuries.
V
Fac'
Whether RTC is liable or not.
~
Facts in issue:
• X' was travelling by RTC bus, resting her elbow on the window sill.
• Truck coming from opposite side hit her and as a result she met with injuries. •.
T\;
close to each other resulting into accident without there being justification for the
same it has to be presumed that the drivers had failed to take reasonable care for the e~
safety of passengers and therefore they were negligent. S{l111
Judgement: Based on the above principle In the given case the truck driver cannot d~
be traced to sue him So RTC is liable to pay compensation for the elbow injury
the passenger as vicarious liability. '-'
darr
tc\..,
:~
9. 'X' created artificial lakes on his land due to extraordinary rainfall,
embarkments of the lakes gave away and damaging the four bridges of 'Y'.
whether 'X' is liable or not.
Facts in issue: b(...
• 'X' created artificial lakes on his land.
l~
• Due to extraordinary rainfall, embarkments of the lakes gave away and
ag
damaging the four bridges of 'Y'.
'Lt
Issues of the case: eel
• Is X liable for that damage of four bridges ofY ? F\r
Principle: This case is identical to the case Nicholas VS Marsland ~
-c
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,.
•• )0 Lz-v v v U,
•
;!~y
lakes and waterways to be flooded and damage adjoining land. The defendant was
held not liable as the cause of the tlood was an act of God .. However great the flood
had been, if it had not been greater than floods that had happened before and might
be expected to occur again .
• Judgement: Basing on the above ease Judgement in the given case also X is not
liable for the damage otYts lour bridges as it is an act of God.
JB SERIES
51
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LAW OF TORTS
Judgement: Yes, based on the above two maxims in the given case also the the
owner of the truck can be held liable for the accident done by his driver which is his
vicarious liability.
13. 'Y' was travelling by Railways. While crossing of another train, his elbow
at the window was injured. Whether Railways are liable or not?
Facts in issue:
I. 'Y' was travelling by Railways.
2. While crossing of another train. his elbow at the window was injured.
Issues of the case:
I. Whether Railways are liable or not?
Principle: Any incident treated as Railway accident involving a passenger train by
the public at large and the Railway staff should be treated to be such an accident.
falling within the ambit of
Section 82-A. Any mishap or misfortune in the working of a Railway inv o l , ing a
passenger train or a part there of resulting in the death of or personal injury to a
passenger travelling therein, during his rail journey is an accident within the ambit of
Section 82-A. This will exclude any incident voluntarily and consciously invited by
the passenger, i.e., suicide by jumping in front of the moving train.
Judgement: As per the above principle in the given case the elbow injury of Mr.Y
While crossing of another train will fall within the ambit of Section 82-A. Hence
Railways are liable and need to pay compensation to the passenger Mr. Y.
14. 'A' parked his car by the roadside and left a dog inside the car. The dog
jumped about and smashed a glass panel. A splinter from the glass injured 'B'
while he was walking past the car. Is there any negligence on the part of 'A'?
Discuss.
Facts in issue:
1. A' parked his car by the roadside and left a dog inside the car.
2. The dog jumped about and smashed a glass panel.
3. A splinter from the glass injured' 'B' while he was walking past the car.
Issues of the case:
1. Is there any negligence on the part of ' A'?
Principle: When the defendant is not liable for negligence: In Fardon vs Harcourt,
the defendant parked his car by the roadside and left a dog inside the car The dog
jumped out and smashed the glass panel. A splinter from this glass injured the
plaintiff while he was walking past the car. The court Held, that the accident being
very unlikely, the defendant was not liable.
Judgement: Based on the above case judgement in the given case also there is no
negligence on the part of A who left his dog in his parked car.
JB SERIES
59 LAW OF TORTS
15. 'X' was imprisoned without his knowledge by 'Y'. Whether 'Y' can be
liable for "false imprisonment"? ~iI
Facts in issue:
1. 'X' was imprisoned without his knowledge by 'Y'.
Pe
Issues of the case:
l:
rati I
1. Whether 'Y' can be liable lor "false imprisonment"? ~t
16. Suman and his friends were playing cricket. One among them hit the ball
and broke the windows glass of M r.X. who is liable for the loss?
Facts of the case: 18~
• Suman and his friends were playing cricket.
• One among them hit the ball and broke the windows glass ofMr.X.
-v
place
Issues of the case: l\.;1
• Who is liable either all friends or the boy who hit the ball liable for the
loss? '-'
Principle: Joint and several liability is most relevant in tort claims, whereby a
plaintiff may recover all the damages from any of the defendants regardless of their Iss~
individual share of the liability. The rule is often applied in negligence cases ~
Judgement: In the given case all friends together playing cricket. As per the above
Pril(}
principle it is Joint and several liability. Hence either. all children or the boy alone
can be liable for the loss. Facts (
'-'
17. X, a minor borrowed Rs. 10,000/- from Y. when Y demanded to pay back
the amount, he argues that he is a minor and contract with minor is void.
What is the remedy available for Y? his~
~~Z
Facts in issue:
1
• X, a minor borrowed Rs. 10,0001- from Y. Withe.,.
• When Y demanded to pay back the amount, he argues that he is a minor and ifhe di
contract with minor is void.
~
Issues of the case:
the v\.,
1. Is the contract with minor is void?
'-'
•
.•_ Uv
lite Principle: It can be saidthat majority is an essential before entering into a contract.
• the contract. And 'even after he attains majority. the same agreement could not be
ratified by him.
•
ball
and void an initio and the defendant Y cannot claim his money Rs.10,000 given to
'X' as he is minor.
• 18. The defendant workers gathered around the plaintiff, rolling of their
• sleeves and threatening to break his neck if he did not immediately leave the
place. Is defendant liable for any tort?
•
their
• Ifhe did not immediately leave the place.
Issues of the case:
••
Jove Principle: The given case is similar to the case Read v Coker
Facts of the case:
~. The defendant had a bus.iness disagreement with the plaintiff, his partner. The
defendant thereupon ordered ~lS .work~en to throw the plaintiff out of the premises.
They then surrounded the plaintiff rolling up their sleeves and threatening to break
••
and
with an intent to do batterY to the plaintiff. Threatening to break the plaintiffs neck
ifhe did not leave the premises was an assault. and made the defendant liable.
When a tortfeasor incur tort liability, which means that they have to compensate
•11 the victim for the harm which has caused by them.
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•
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61 LAW OF TORTS
'-'Ju
Judgement: Based on the above principle in the case also defendant is liable for ~
the tort of assault. un
21.
'-'
19.'X' purchased a computer to run a DTP work business. Subsequently, he \.,.
found the computer with some defects. He wants to file a complaint before
the district forum. Advise.
Facts in issue: \..t •
I. X' purchased a computer to run a DTP work business. •
2. Subsequently, he found the computer with some defects.
3. He wants to file a complaint before the district forum.
Issues of the case:
1. He wants to file a complaint before the district forum. Will he succeed?
Principle: Chapter III of the Consumer Protection Act. 1986 deals with consumers Prine
grievances. By establishing three tier Consumer Disputes Redressal Agencies '-'
Fact~
namely the District Forum, the State Commission and the National Commission f<\.;
As per Sec. 2(b)(iv)Consumer Protection Act, 1986 from
Any consumer or any number of consumers are legally entitled to bring a class g~t
that t
action against a trader if they have the same interest in the product used or service
availed. ndt.t:
child
Further, the Act empowers such bodies to give reliefs of specific nature and
award appropriate compensation to the aggrieved party as they may find it fit in a ank
particular case. D~~
They
Judgement: As per Consumer Protection Act 1986 guidelines in the given case also be\w:
'X ' can complain before the district forum and can get appropriate compensation. defen
no~
20. 'A' doctor left a mop inside the abdomen of 'Y' during an operation. 'V' trial.
died due to infection. Discuss the liability of A. JuJre
Facts of the case : lia\_,
Rajan
• 'A' doctor left a mop inside the abdomen of' Y' during an operation.
• 'Y' died due to infection. \.00
22.
Issues of the case:
pJ."
• What is the liability of the doctor A?
Fare
Principle: Normally medical negligence cases are to be booked under section304
A( causing death of a patient by doctor' s negligence).
To impose criminal liability under Section 304-A, it is necessary that the death Issues'-'
should have been the direct result of a rash and negligent act of the accused and that
the act must be the proximate and efficient cause without the intervention of '-'
another's negligence.
-. ~
Oi.
Judgement: Based on the above principle in the given case also <A' the doctor who
is responsible for the death of 'Y' the patient during an operation, is to be booked
under section 304 A.
21. Rajan planted poisonous plants around his house, so that animals may not
enter his house, for these poisonous plants red colour berries were hanging.
One boy ate and died. Who is liable?
Facts of the case:
• Rajan planted poisonous plants around his house.
• lie did so to prevent animals entering into his house.
• for these poisonous plants red colour berries were hanging. One boy ate and
died.
Issues of the case:
• Who is liable for the boy's death?
Principle: This case is similar to the case Glasgow Corporation v Taylor.
Facts of the case: The father ofa seven-year-old boy sued the Glasgow Corporation
for damages following the death of his son who died as a result of eating berries
from a poisonous plant that was growing in the Botanic Gardens in Glasgow. The
gardens were open to the public and managed by the defendant. The father argued
that the defendants allowed children to pass through their grounds frequently yet did
. not take any action to warn or alleviate the danger caused by the poisonous plant to
children. The plant was enclosed by a wooden fence which was open to the public
and easily accessed by children.
Decision: The court held that the Glasgow Corporation was liable in this instance.
They had permitted children to go on to the land and it is understandable that the
berries would have appealed to visiting children, thus representing a danger. The
defendants were aware of this danger caused by the poisonous berries and did
nothing to prevent the damage. On this basis, the action was required to proceed to
trial.
'I Judgement: Based on the above case judgement in the given case also the Rajan is
• liable for the death of the boy who died after eating the poisonous fruits from
Rajan' s garden.
•
• 22. A, a newspaper published a defamatory matter and the same was
published by other local newspaper next day. State who is liable.
Facts in issue:
••
1 of
Issues of the case:
• Who is liable for publishing defamatory matter in a newspaper?
• Whether the first publisher or republisher?
-• JB SERIES
63
23. The plaintiff is a heart patient. The doctor's advised him to be away
any noise and to take rest. At regular intervals there were sounds of
ringing in the neighbourhood church and he used to get disturbed. He
case on the authorities for nuisance. Is the church authorities lia
nuisance?
Facts in issue:
• The plaintiff is a heart patient.
• The doctor's advised him to be away from any noise and to take rest.
• At regular intervals there were sounds of Bell ringing in the ~.avv...,
H_~ ....
24. A young 'Z' lured girl to have sexual relations under the garb of
Marry. Later, girl became pregnant 'X' refused to Marry. What
remedy available to girl?
Facts in issue: Xaij
'-'
• A young 'Z' lured girl to have sexual relations under the garb of haJW
Marry. nker. :
• Later, girl became pregnant 'X' refused to Marry. What is the
available to girl?
acts0'
.x\t
"
Issues of the case:
• Tt,
LAW OF TORTS
• What is the remedy available to girl?
Principle: The consent for sexual intercourse obtained by a person by giving false
promise of marriage would not excuse him from rape charges. Whenever the
accused gives promise 10 the victim to marry her , never had any intenlion to marry
and the victim gave the consent for sexual intercourse on such an assurance by the
accused that he would many her, such a consent oblained on a misconception of
fact as per Section 90 »rrrc and in such case, such a consenl would not excuse the
offender can be said 10 have committed the rape as defined under Section 375 ofIPC
and can be convicted lor the offence U/S 376 of the IPC.
Judgement: Based on the above principle in the given case the girl can file a rape
against Z U/S 375 of IPe and Z will be convicted for the offence U/S 376 of
caseIPC.
the
25. 'X' was called to his office on the pretext for some enqUiry and was made to
sit there in the room till the police arrived to arrest him. He wants to file a
case against his employer. Discuss.
Facts in issue:
• X' was called to his office on the pretext for some enquiry.
• He was made to sit there in the room till the police arrived to arrest him.
• He wants to file a case against his employer
Issues of the case:
• Can he file case against an employer?
Principle :False imprisonment is the wrongful restraining, confining or detaining a
n"''''"on without that person's consent. It is a crime (i.e. Penal Code, § 236) and can
be charged as a felony or misdemeanour. It is also a common law tort.
False imprisonment can arise in the employment context. This would typically occur
during a workplace investigation when an overzealous employer
;:investigates allegations of employee wrongdoing and tries to question the employee
or coerce a confession. The act of false imprisonment happens When the employee is
intentionally and illegally held against his or her will.
Judg~ment: As per the above principle in the given case the employer detained the
employee on the name of some enquiry till the police come and arrest him. This is
nothing but false imprisonment.
JB SERIES
LAW OF TORTS
27. The Plaintiff, who was in advanced stake of pregnancy was standing behind
Ttl
case,
her husband's public bar. The defendant's servant negligently drove a CL"1
ran into the bar with the result that she got a severe shock and delivered witnil
which became dull headed. Advice her.
a~
Facts of the case:
Jur~1
• The Plaintiff, who was in advanced stake of pregnancy was standing behind the~
her husband 's public bar. in t'f
• The defendant's servant negligently drove a horse ran into the bar. goY'M-I
• As a result the result she got a severe shock and delivered child which
became dull headed.
\J
Issues in the case: CJ
• What are the remedies available to her?
V
Principle: This case is identical to the case Dulieu v White. The plaintiff
in this case was the pregnant wife of a publican. The defendants and their servant c
negligently drove a pair-horse van into the public-house. The plaintiff was SPVI"'TP.IIY.'
shocked, was subsequently ill and then gave birth to a premature child who was
c
born an idiot. The plaintiff sought damages and was awarded them by the court.
this case Kennedy J in his dictum said that you can only claim nervous shock if
o
fright is for yourself and not for a third party.
Judgement: Based on the above case judgement in the given case also the
can sue the defendants for damages. Because in the above case the plaintiffwas
"o
awarded damages by the court.
o
28. X, a driver of a police patrol jeep while reporting for duty in the morn
and while driving to the police station he negligently crushed a school going
o
boy under his jeep. The father of the boy brought an action for damages
against the state, Decide.
o
Facts of the case: u
• X, a driver of a police patrol jeep was reporting for duty in the morning. o
While driving to the police station he negligently crushed a school going
under his jeep. u
c
-------- o
itcc vv
----------------------------------------------------- LAW OF TORTS
• The father of the boy brought an action for damages against the state,
Issues in the case :
• • Can the father of the deceased boy sue the state for its servant's negligence?
Principle : Vicarious Liability of state is also known as the tortious liability of the
Government. State's liability for the tortious actions of its employees is called as
tortious liability of the State. State is liable for the acts of ncg ligcncc. wrongful
execution and omission or commission either voluntarily or involuntarily.
State of Rajasthan Vs Vidyawati
The respondents filed a suit for the damages made by an employee ofa-State and the
case questioned whether the State was liable for the tortious act or its servant - The
Court held that the liability of the State in respect of the tortious act by its servant
within the scope of his employment and functioning as such ',as similar to that of
any other employer.
Judgement: Based on the above principle and the judgement in given case law in
the given case also state is liable for its servants negligence dri"ing which resulted
in the death of a boy. So in the given case the father of the boy can sue the
government for the damages.
-- 000 --
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PAPER-V
. ENVIRONMENTAL LAW
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LLB 3YDC I SEMISTER
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PAPER V - ENVIRONMENTAL LAW
PART A QUESTIONS
CONTENTS
o"
1. What is Ecology and explain about Eco system. iJ27.
2. Write about biosphere. ~.
3. Biodiversity ~.
• 25.Right to Development
PART - B QUESTIONS
30.What do you know about environment?
31.What is the need for Conservation and protection or environment?
32.Write an essay on Ancient Indian approach to environment protection.
33.Discuss the causes for Environmental degradation/ pollution and its effects. ?
34.What are the Common Law remedies against pollution _
35.Explain the administrative efforts to combat the hazards of noise pollution.
36.Write about the laws relating to the preservation, conservation and protection of
forests.
37.Explain the law relating to the wild life and endangered species, marine life,
coastal ecosystems and lakes etc.
38.What are the Salient features of the Prevention of Cruelty to Animals Act,
1961?
39.What is Pollution and what are the related Acts to control it?
40.Environment pollution control mechanism.
4 1.What are the Salient features of The Environment (Protection) Act, 1986?
42.Composition of National environment Tribunal. Explain in detail.
43.What is National Environmental Appellate Authority Act 1997?
44. What are liabilities of multinational companies?
45.What is Stockholm Declaration on Human Environment, 1972?
46.What is the Role ofUNEP for the protection of environment?
JB SERIES
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Environmental Law •
\.r
Part -A Answers 2. Wr
An\,tl
1. What is Ecology and explain about Eco system. extfTld
Ans: Ecology can be defined as the relationship shared by organisms with the tre~,
environment and \V ith each other. The main three const ituents of ecology are the Bi~J
following- censer
• Interactions and relationships with the surrounding environment liv~
• Interactions and relationships with other organisms Tht[<>
Living organisms larg~a
Every plant and animal present in the ecology relies on the numerous ~
oPU
aspects of the environment, in order to get nutrients. water. and food. Another thi~g inhabit
that is studied in the field of ecology is how the organisms respond to the atmosphere, Th~i
topography. soil. and climate and water availability. Biodiversity within the ecosystem promot
Ecosystem Zorl..,
The ecosystem consists of all the living species in a community and dealing with There c
several external and abiotic factors. An ecosystem is divided into two parts- ~
1. biotic
2. abiotic
Biotic factors include the living beings of the ecosystem and the abiotic factors 1.
:~
G..;e
include the non-living physical beings. The most common abiotic factors are water, .• 1
soil, sunlight, minerals, and other things. Two aspects hold the biotic and abiotic
factors together- eU1
1. The cycling of various nutrients in the ecosystem • T
2.~q
~.
2. The flow of energy through the ecosystem
Differences between ecology and ecosystem
Ecology and ecosystem differ in the following ways-:
.~1
• Ecology revolves around the relationship between the environment and living
organisms.
• Ecosystem revolves around the study of different places and environments, such
a!
.'-'~;
as streams, still water, desert, river, grassland, forest etc.
• Ecology is the study of the environment and different ecosystems. • \.t]
!:Ir
• The ecosystem is generally the subset of the broader ecology. \_;
• There are no general classifications when it comes to the ecology. 3.Mb
• However, the ecosystem can be of different types such as sea ecosystem, forest
ecosystem and pond ecosystem.
·Tt
• Ecology is an extensive study of living beings or organisms and their V
co
interactions and relationship with the environment. .\.tJ
• On the other hand, the ecosystem is considered the subset of ecology and it • Th
revolves around all the complex interactions between living beings and non- ~
living beings in a community or area.
• Ecology is a broader perspective of the environment. Irnpor~
--V
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ENVIRONMENTAL LAW
----------- ------ ------------
3. Manipulation Zone
• It is the peripheral area of a biosphere reserve where human activities like
cropping, recreation, forestry, and settlements are permitted with the
cooperation of reserve management and local people.
1.
_. • Through these activities, the degraded area is resumed to its natural form.
d 1t • The local communities, scientists, conservation agencies, cultural groups, and
other stakeholders work in this zone to use the area in a sustainable way for the
welfare of humans living there.
Importance of Biosphere Reserves
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levels.
Types of Biodiversity
There are the following three different types of biodiversity:
1. Genetic Biodiversity
2. Species Biodiversity
3. Ecological Biodiversity
1. Genetic diversity
It refers to the variations among the genetic resources of the organisms. Every
individual of a particular species differs from each other in their genetic constitution.
That is why every human looks different from each other. Similarly, there are different
T
varieties in the same species of rice, wheat, maize, barley, etc.
ges~
'--'
FNVIRONMFNTAI 1(\'(\/
•• 2. Species diversity
-----------------------------
It is the biodiversity at the most basic level. It includes all the species ranging from
•• plants to different microorganism. No two individuals of the same species are exactly
similar.
For example, humans show a lot of diversity among themselves.
••
3. Ecological diversity
It is the diversity observed among the different ecosystems in a region. Diversity in
different ecosystems like deserts. rainforests, mangroves, etc., include ecological
diversity.
- Importance of Biodiversity
Biodiversity and its maintenance are very important for sustaining life on earth. Few
of the reasons explaining the importance of biodiversity are:
Economic Importance
• Biodiversity is a reservoir of resources for the manufacture of food. cosmetic
products and pharmaceuticals.
• Crops livestock, fishery. and forests are a rich source of food.
• Wild plants such as Cinchona and Foxglove plant are used for medicinal
purposes.
• Wood, fibers, perfumes, lubricants, rubber, resins, poison and cork are all
derived from different plant species.
• The national parks and sanctuaries are a source of tourism.
• They are a source of beauty and joy for many people .
...................
1mportance
All the species have a right to exist. Humans should not cause their voluntary
extinction.Biodiversity preserves different cultures and spiritual heritage. Therefore, it
very important to conserve biodiversity .
•V..... ,.lt..' in India
is one of the most diverse nations in the world. It ranks ninth in terms of plant
u....... richness. Two of the world's 25 biodiversity hotspots are found in India. It is
""'."''''
origin of important crop species such as pigeon pea, eggplant, cucumber, cotton
sesame. India is also a centre of various domesticated species such as millets,
legumes, vegetables, medicinal and aromatic crops, etc.
India is equally diverse in its faunal wealth. There are about 91000 animal
found here. However, diversity is depleting at a drastic rate and various
grammes on biodiversity conservation are being launched to conserve nature.
Ozone depletion .
. Ozone depletion is greatest at the South Pole. It occurs mainly in late winter and
spring (August-November) and peak depletion usually occurs in early October,
Ozoneis often completely destroyed in large areas.
This severe depletion creates the so-called "ozone hole" that can be seen in
of Antarctic ozone, made using satellite observations.
JB SERIES
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Effec
The hole grew in the years following ratification of the Montreal Protocol,
due to the lag caused by the fact that ozone-depleting substances remain in the '-'
stratosphere for a long time. The maximum size of the ozone hole is now decreasing.
Effects of ozone depletion for humans and the environment:
• It causes increased UV radiation levels at the Earth's surface, which is damaging
to human health. •
• UV radiation effects include increases in certain types of skin cancers. eye
cataracts etc
• UV radiation also affects terrestrial and aquatic ecosystems.
• Aquatic life just below the water's surface, the-basis of the food chain. is
adversely affected by high UV levels.
• UV rays also affect plant growth, reducing agricultural productivity. \.I'
Action to protect Ozone Layer: J
The Montreal Protocol \.,
The Montreal Protocol's objective is to cut down the production and Measu
consumption of ozone-depleting substance. .\..1
Global consumption of ozone-depleting substances has been reduced by some
98% since countries began taking action under the Montreal Protocol. As a result, the .~ c
5. Global warming.
ADS. Global warming occurs when Carbon Dioxide (C02) and other air po
greenhouse gases collect in the atmosphere and absorb sunlight and solar
have bounced off the earth's surface. Normally, this radiation would escape
space-but these pollutants, which can last for years to centuries in the
trap the heat and cause the planet to get hotter. That's what's known as the oreenns
effect.
_ "
......_ C
· .~. 1"-" I I flo. ,ft.,
cilj'Vll\uj~IVI"""" ,,- .
Going into the facts of the case, F had a mill on his land, and to power the mil.l,
built 'a reservoir on his land. Due to some accident, the water from the reserVOIr
moooeothe coal mines owned by R. Subsequently, R filed a suit against F. The ~ourt
that the defendant built the reservoir at his risk, and in course of it, if any aCCIdent
marmeln~ then the defendant will be liable for the accident and escape of the material.
Going by the principle laid in this case, it can be said that if a person brings on
land and keeps some dangerous thing, and such a thing is likely to cause some
'Ual.l1a}!~e
if it escapes then such person will be answerable for the damage caused. The
"-A"VII from whose property such substance escaped will be held accountable even
he hasn't been negligent in keeping the substance in his premises.
The liability is imposed on him not because there is any negligence on his pa~,
the substance kept on his premises is hazardous and dangerous. Based on this
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Ii
,t
i..,.1'4 VJI\Vj~j'wiL..I'4 Jr\L Lr-\\fV
lo~ \_,
judicial pronouncement, the concept of strict liability came into being. There are some canno
essential conditions which should be fulf lied to categorize a liability under the head of w~
strict liability. unfore
Essentials of Strict Liability Act OJ'-'
Dangerous Substances: The defendant will be held strictly liable only if a to '-'
of the
"dangerous" substance escapes from his premises.
woI\"
For the purpose of imposing strict liability, a dangerous substance can be due ca
defined as any substance which wi II cause some mischief or harm if it escapes. Things ~
For II
like explosives, toxic gasses, water. electricity, etc. can be termed as dangerous things.
ovelJ
Escape: One more essential condition to make the defendant strictly liable is that the the Co
material should escape from the premises and shouldn't be within the reach of the Con\.tJ
defendant after its escape.
lnJU\;
For instance: The defendant has some poisonous plant on his property. Leaves from For ins
the plant enter the property of the plaintiff and is eaten by his cattle, who as a result sitmA-J
died. The defendant will be liable for the loss. But on the other hand, if the cattle
c1ai\j
belonging to the plaintiff enter the premises of the defendant and eats the poisonous
leaves and die, the defendant would not be liable.
In the judicial pronouncement of Reads v. Lyons & Co. It was held that if there-is
no escape, the defendant cannot be held liable.
wouldn't be held liable, as the plaintiff himself came in contact with the
thing.
In the judicial pronouncement ofPonting v Noakes, the plaintiffs horse died
entered the property of the defendant and ate some poisonous leaves. The Court
that it was a wrongful intrusion, and the defendant was not to be held strictly
such loss.
Act of God: The phrase "act of God" can be defined as an event which is
control of any human agency. Such acts happen exclusively due to natural
o
C)
" I
"
1(1
ENVIRONMENTAL LAW
"
::.ii!not be prevented even while exercising caution and foresight. The defendant
IJ.Ildn't be liable for the loss if the dangerous substance escaped because of some
woreseen and natural event which couldn't have been controlled in any manner.
Act of the Third Party: The rule also doesn't apply when the damage is caused due
Ahe act of a third party. The third party means that the person is neither the servant
o.Lthe defendant, nor the defendant has any contract with them or control over their
v"k. But where the acts of the third party can be foreseen, the defendant must take
11 care. Otherwise, he will be held responsible.
For instance : In the case of Box v J ubb. where the reservoir of the defendant
artlO\ved because a third party emptied his drain through the defendant's reservoir,
the Court held that the defendant wouldn't be liable. '
~nsent of the Plaintiff: This exception follows the principle of violent in on tit
fjIria.
~r instance, if A and B are neighbors, and they share the same water source which is
"lated on the land of A, and if the water escapes and causes damage to B, he can't
_im damages, as A wouldn't be liable for the damage .
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I~'
.l..... • 1~
tl\lVIKUI\llVItN If\L Lf\W
\w
The Act states that any person who is carrying out inherently dangerous Or
hazardous activities should have insurances and policies in place where he will be '-'
insured against liability to provide compensation to the victims in case any accident
takes place, and some injury occurs. This liability is based on the principle of ''no fault \.,
liability". If any substance is inherently dangerous or hazardous due to its handling T}
also. then also the absolute liability of the defendant arises. ~I
Conclusion: The rule of strict liability and absolute liability can be seen as
exceptions. Generally a person is made liable only when he is at fault. But the
principle governing these two rules is that a person can be made liable even without
his fault.
•
-- -- -----------
•~.
be • An appeal against order/decision! award of the NGT lies to the Supreme
Court, generally within ninety days from the date of communication.
The NGT deals with civil cases under the seven laws related to the environment,
these include:
• •
•
•
The
The
The
Water (Prevention and Control of Pollution) Act. 1974,
Forest (Conservation) Act, 1980,
Air (Prevention and Control of Pollution) Act, 1981,
• The Environment (Protection) Act 1986. etc.
,
• Any violation pertaining to these laws or any decision taken by the Government
under these laws can be challenged before the NGT.
Advantages of NGT
There is need for more autonomy and widen NGT's scope for effective protection of
environment in balance with human developmental activities.
Article 48A and Art. 51A(g) of the Constitution of India - Right to wholesome
nt - Right.
Ans. In the year 1976, the constitution was amended. With this amendment, Article
was inserted in the constitution with the aim to afford better provisions so as to
mreserve and protect the environment.
48A lays down the directive principle for protection and improvement of
u'"", .... "'... and safeguarding of forests and wildlife. It reads as:
The State shall endeavor to protect and improve the environment and to
~-~'~"''''UJ.Uthe forests and wildlife of the country.
This Article was added by the 42nd Amendment, 1976 and places an
obligation on the State to protect the environment and wildlife. While not judicially
Article 48A may become enforceable under the ambit of the right to life
"''' ...UI'-'.
Article 21.
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FNVIRONMr-"'TI\.~ ~,I\,'.\'
l~
I IJw
In M.e. Mehta v. Union of India (2002), the Supreme Court heard a public
'-'•
interest litigation in the matter of air pollution in Delhi. The Court made the following
observations regarding Article 48A and public health:
in~
Articles 39, 47 and 48A by themselves and collectively cast a duty on the
State to secure the health of the people, improve public health and protect and improve
the environment.
In SachidanandPandey & Ors. v. The State of West Bengal &Ors. (1987), f~r
the Supreme Court held that Article 48A must be kept in mind whenever a matter ~c
regarding maintenance of the ecology is brought before the Court. UJ
Part IV -A of the constitution deals with Fundamental Duties. Article 51-
A(g) specifically deals with the fundamental duty of the citizens to protect and sc
improve the natural environment which includes forests, rivers, lakes, wildlife and to \.;y
have compassion for living creatures. Like the duty of the state. it is the duty of all the pr
citizens of not only protecting the environment but also taking measures which are \"
adequate enough to improve the environment.
~(
'-'
~'4
LI~ V IKUI'>JIVltNTAL LAW
• Environmental protection.
These elements are interconnected and all are crucial for the well-being of
individuals and societies.
Ans. The Ramsar Convention is the only global environmental treaty that deals with a
particular ecosystem. The treaty was adopted in the Iranian city ofRamsar in 1971 and
the Convention's member countries cover all geographic regions of the planet. It is an
. treaty that provides the framework for national action and
I cooperation for the conservation and wise use of wetlands and their
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The Convention uses a broad definition of the types of wetlands covered
its mission, including lakes and rivers, swamps and marshes, wet grasslands and,
oases, estuaries, deltas and tidal flats, near-shore marine areas, mangroves and coral
reefs, and human-made sites such as fish ponds, rice paddies, reservoirs, and salt pans.
The Wise Use concept
"Wise use" therefore has at its heart the conservation and sustainable use of wetlands
and their resources. lor the benefit of humankind. me\.)
protec
12. Bonn Convention (Migratory Birds) 1992 It '-'(
unders
Ans. The Convention on the Conservation of Migratory Species of Wild Animals , .••. ad~
also known as the Convention on Migratory Species (CM S) or the BOlln and wi
Convention. is an international agreement to protect those species of wild .... .,,,1(11)
~
that migrate across or outside national boundaries signed in 1979 in Bonn, 14. Bi(
the Convention entered into force in 1983. \..f
ObjelU
T
u
c
~ 16
----------------- -- ----------------------------
network wherein they exchange their information and research outcomes, addressing
the environmental threats, for effective implementation of the Convention.
The Nairobi Convention is a partnership between governments, civil society
and the private sector, working towards a prosperous Western Indian Ocean
Region with healthy rivers, coasts and oceans.
The Convention offers a regional legal framework and coordinates the efforts of the
member states to plan and develop programmes that strengthen their capacity to
protect, manage and develop their coastal and marine environment.
It also provides a forum for inter-governmental discussions that lead to better
understanding of regional environmental problems and the strategies needed to
address them; and 'promotes sharing of information and experiences in the WIO region
and with the rest of tlie world.
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17 18~
The goal of the biodiversity focal area strategy is to maintain globally significant
'-'
Hist«
biodiversity and the ecosystem goods and services that it provides to society. TlA.41
direct
15. Kyoto Protocol 1997. Thk
ADS. The Kyoto Protocol is an international agreement that aimed to manage and '-'•
reduce carbon dioxide emissions and greenhouse gases. The Protocol was adopted at a
conference in Kyoto, Japan. in 1997 and became international law on February 16,
2005.
hel'-"I
The Protocol operationalised the United Nations Framework Convention on the en'
Climate Change (UNFCCC). 192 nations committed to reduce their emissions by an ' ~
average of 5.2% by 2012, which would represent about 29% of the world's total,
emissions. eco~1
Countries that ratified the Kyoto Protocol were assigned maximum carbon The, til
emission levels for specific periods and participated in carbon credit trading. Ir;a ,••env~:
country emitted more than its assigned limit, then it would receive a 10\\ er emissions eco\.:
limit in the following period.
Developed Vs Developing Nations 'j
pol1~c
Recognizing that developed countries are principally responsible lor the current lev~Js
finaL.)
of GHG emissions as a result of more than 150 years of unmitigated industrial activity, deveToJ
the Protocol placed a heavier burden on them. 37 industrialized nations plus the EU
maI\.ll
were mandated to cut their GHG emissions, while developing countries were asked to
voluntarily comply; more than 100 developing countries, including China and India,
~
were exempted from the treaty. the Wo
The Protocol separated countries into two groups: ten-~
controv
• Annex I contained developed nations, and
\..,
• Non-Annex I contained developing countries.
Emission limits were placed on Annex I countries only. Non-Annex) ,
countries could invest in projects to lower emissions in their countries. For
projects, developing countries earned carbon credits that they could trade or sell to
developed countries, allowing the developing nations a higher level of maximlf~
carbon emissions for that period. This effectively allowed developed countries J~' intemC'lti
envir~
continue emitting GHGs.
Why did the US not sign the Kyoto Protocol? gover~
The US dropped out of the agreement in 2001, calling the treaty unfair because it -
mandated only developed countries to reduce emissions, and felt that doing so would
17. NhI
hinder the US economy.
The Declaration of the Conference noted that population growth. dev eloping
economies, and technological and industrial advancements harmed the environment. .
The declaration asserted that every human has the right to a clean and healthy
humans have the responsibility to manage wildlife and their
Earth Summit 2002 produced more than 300 partnership initiatives on the
and sustainable development. Partnership initiatives are not multi-lateral
..... vu,~J treaties;
w~ .. ·...... they are agreements between two or more governments, non-
~""WJjl<u.. organizations .
. This Act is to provide damages compensation for strict liability arising out of
accident occurring while handling any hazardous substance and for the
lishment of a National Environment Tribunal for effective and expeditious
sal of cases arising from such accident, with a view to giving relief and
. -·"¥''''U('U.LJ'VU for damages to persons, property and the environment and for matters
,",UIllle:CH:d therewith or incidental there to.
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Ci~ViROj~jvl[.l\j i /-IL Lf-\VV
The Tribunal shall have the following powers, while trying a suit, in respect of \.r
the following matters. namely:- •
Thus the national environmental tribunal exercises its jurisdiction provides relief
V
to the aggrieved persons. 19. IC
18. Public Nuisance ADs·a
role PTa
Ans. A public nuisance generally refers to any conduct that interferes with the rights Indiav
of the public. A public nuisance is an unreasonable, unwarranted, or unlawful litigati9
interference with a right common to the general public. In general, public nuisanc~S tnoreV
threaten a community's health, safety, or overall welfare. Common types of.rubh~ concern-
nuisance include pollution, drug activity, explosives storage, and possessIOn 0
dangerous animals. 11
c
The term public nuisance covers a wide variety of minor crimes that threaten the healt Muni~
h, morals, safety, comfort, convenience, or welfare ofa community. Violators may be esta~l~
punished by a criminal sentence, a fine, or both. A defendant may also be required to r
emove a nuisance or to pay the costs of removal.
o
c
ENVIRONMENTAL LAW
For example: A manufacturer who has polluted a stream might be fined and might als
o be ordered to pay the cost of cleanup. Public nuisance interferes with the public as a
class, not merely one person or a group of citizens.
No civil remedy exists for a private citizen harmed by a public nuisance.
Public nuisances may interfere with public health, such as :-
• Keeping of diseased animals or a malarial pond.
• Shooting fireworks in the streets. storing explosives, practicing medicine witho
ut a license, or harboring a vicious dog.
Examples of nuisances that interfere with public morals.
• Houses of prostitution, illegal liquor establishments, Gaming houses. and unlice
nsed prizefights.
Examples of nuisances threatening the public conveniencenuisance, even if
his or her harm was greater than the harm suffered by others;
Obstructing a highway or creating a condition to make travel unsafe or highly d
isagreeable are a criminal prosecution is the exclusive remedy. However. if the i
ndividual suffers harm.
• That is different from that suffered by the general public, the individual
may maintain a tort action for damages.
For example, if a culprit has thrown a large boulder onto a public highway,
• Those who use the highway cannot maintain a nuisance action for the
inconvenience. However, a motorist who is injured from colliding with the
boulder may bring a tort action for personal injuries.
• Some nuisances can be both public and private in certain circumstances whereth
e public nuisance substantially interferes with the use of an individual's
adjoining land.
For example, Pollution of a river might constitute both a public and a private n
uisance. This is known as a mixed nuisance.
Ans. The most characteristic feature of the Indian environmental law is the important
role played by the public interest litigation. A majority of the environment cases in
India since 1985 have been brought before the courts as writ petitions. Public interest
. . is a result of the relaxation of the locus standi rules. This form is usually
efficient in dealing with environmental cases, for the reason that these cases are
iconcem-a with the rights of the community rather than the individual.
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71
\.,
observed that a responsible Municipal Council constituted for the precise purpose of The t
preserving public health, cannot escape from its primary duty by pleading financial So\..r1
inability. Peo-il
ba~
Ever since then, the Indian Judiciary has been evolving old principles and
formulating new ones to meet the need of the hour. A perfect example is the case of
ToO
M. C. Mehta v. UOI,(AIR 1987 SC ] 086) where an oleum gas leak at an industrial 2lV
plant in the capital city of Delhi in the year 1985 had led to the death of a person and
had raised serious health issues in the general populous. In this case, the Supreme Af\..,'
Court had introduced the doctrine of .Absolute Liability' o? the user of hazardous Smith
material, thereby eroding the possibility of the offending party taking any defense to in f\..,g
wriggle out of its accountability. This rule was evolved from the established principle and R,
of ' strict liability' .. In Tarun Bharat Sangh. Alwar Vs. Union ofIndia. ~
'-'
~
,.I 22 ._------ __ ENVIRONMENTAL LAW
-. The brown pelican is a good example. This seabird lives on the coasts of North and
:! South America. In 1970, there were only 10,000 left. It was listed as vulnerable.
l•_
People took action. They raised baby pelicans and released them into the wild: They
banned cheJ11ical~ that ~ar~ed the birds. The number of brown pelicans climbed .
Today, it is sate trom extmction
••Ie
of
md
21. Acid Rains
Ans. The phrase a.cid :ain ~as first used in 1852 by Scottish chemist Rob~rt A~~us
p- and Rain.
Acid rain. also called acid precipitation or acid deposition, precipitation possessing
a PH of about 5.2 .or below. primarily produced from the emission of sulphur
dioxide (S02) a~d nitrogen OXides (NOx; the combination of NO and N02) ~r?m
human activitIes, mostly the combustion of fossil fuels. In acid-senSItIve
landscapes, aci~ deposition can reduce the pH of surface waters and
lower biodiversIty.
It weakens trees and increases their susceptibility to damage from othe~ str~ssors,
such as drough~, extreme cold, and pests. In acid-sensitive areas, acid ram .also
depletes soil of llnpor~a~t plant nutrients and buffers, such as calcium and mag.nesmm,
and can release alum.mmm, bound to soil particles and rock, in its toxic dlssolve.d
form. Acid rain contnb~tes t? the corrosion of surfaces exposed to air pollution and IS
responsible for the deterioration of limestone and marble buildings and monuments.
Although the problem o~ acid rain has been significantly reduced in some areas,. it
remains an important environmental issue within and downwind from major industnal
and industrial agricultural regions Worldwide.
Ans. The •polluter. pay' principle was first introduced by the Organization of
Economic Cooper~tIOn and Development(OECD) in 1972. The report stated that t?e
polluter is responsible for the controlling and prevention of pollution associate~ ~Ith
the process of the factory. Pollutants were soon recognized by the W orId Commission
on Environment Development as a form of waste.
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"-, .-,
LoJ
In other words. the costs of the measures should reflect on the cost of the goods and ~e~~
services. the production and/or consumption of which led to pollution. The cost of the
measures should not be accompanied by the subsidies as it would lead to distortion in
=v
vanisl
international trade and investment.
24.~J
The polluter pays principle is part of a set of hroader principles to guide sustainable \w
development worldwide The 'polluter pay' principle forms a part of the environmental Ans.C
law ofIndia. shit\."
human
23. Public Trust Doctrine fos~l
Ans. The Public Trust Doctrine is the principle that certain resources are preserved for BUrWl
public use, and that the government is required to maintain them for the public's around
reasonable use. \...;
The Public Trust doctrine didn't exist in India as a doctrine but it came through a Examo
landmark judgement which was M.C Mehta vs Kamalnath. diox~
M.e Mehta v. Kamalnath
~a~~
The public trust doctrine first alluded in India through this landmark case. This case-is
buil«_,
also known as SPAN Motel case. In this case, a PIL challenged the minister of
environment Mr.Kamalnath [respondent] who allowed SPAN Motel company to
construct a hotel near the mouth of river Beas in Himachal Pradesh and also allowed '-'
tempen
the company to change the course of the river for the construction by blasting the river eveIJ\.l
bed. The construction of the hotel was planned on land which was taken on a 99 years
lease from the government. It was allowed by the ministry as well as the gram
panchayat of that area. '-'
Water s
The supreme court held that" the public trust is more like an order for the state to use stonn\.t
the public property for public purposes. It is the duty of the state to protect the
environment, lakes and public heritage and it can be only abdicated in a rare case Peopl'-t
when it is inconsistent with the public trust.
Clima'"
The court asked the company to pay compensation for the restoration of the
Some ('~
environment of that area under the polluter pay principle.
island'"
M.l. Builders Pvt. Ltd. v. RadheyShyamSahu
intrusi~
~
ENVIRONMENTAL LAW
In the case of M.1. Builders Pvt. Ltd. v. RadheyShyamSahu the court covered Public
trust doctrine under the right to life and stopped the construction of the shopping
complex in the place of a public garden stating the garden as a public resource. The
court observed that the park is a public place with historical importance. The court
cited Public trust doctrine and M.C. Mehta case as a precedent. The court stated that
allowing the construction will deprive the public of the quality of life as stated under
Article 21 ofthe constitution.
Conclusion .Thc \\ ord . Environment' has too many meanings and it is a difficult job
to define it. Even the environmentalists who work in this direction are not able to
define it. For many centuries we have changed the environment according to. us and it
is proved that it is malleable. But there is a limit and we have seen the changes in
environment like pollution, change in vegetation and food chain, climate change,
vanishing wetlands. We. humans. have destroyed the environment.
Ans.Climate change refers to long-term shifts in temperatures and weather patterns. These
shifts may be natural, such as through variations in the solar cycle. But since the 1800s,
human activities have been the main driver of climate change. primarily due to burning
fossil fuels like coal, oil and gas.
Burning fossil fuels generates greenhouse gas emissions that act like a blanket wrapped
around the Earth, trapping the sun's heat and raising temperatures.
Examples of greenhouse gas emissions that are causing climate change include carbon
. dioxide and methane. These come from using gasoline for driving a car or coal for heating
a building, for example. Clearing land and forests can also release carbon dioxide.
Landfills for garbage are a major source of methane emissions. Energy, industry, transport,
buildings, agriculture and land use are among the main emitters.
Many people think climate change mainly means warmer temperatures. But
temperature rise is only the beginning of the story. Because the Earth is a system, where
everything is connected, changes in one area can influence changes in all others.
..;.
~
The consequences of climate change now include, among others, intense droughts,
water scarcity, severe fires, rising sea levels, flooding, melting polar ice, catastrophic
storms and declining biodiversity.
It Climate change can affect our health, ability to grow food, housing, safety and work.
• Some ofus are already more vulnerable to climate impacts, such as people living in small
island nations and other developing countries. Conditions like sea-level rise and saltwater
intrusion have advanced to the point where whole communities have had to relocate, and
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rl',""r)(-'''''''ln~''''T'''
....., •• "''-'' ... ,viL....I''
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I,\L..1..r\If\l
,~
• 7~
\.f
protracted droughts are putting people at risk offamine. In the future, the number of •
"climate refugees ,. is expected to rise.
The human person is the central subject of development and should be the '-'
•
active participant and beneficiary of the right to development.
States have the right and the duty to formulate appropriate national
development policies that aim at the constant improvement of the well-being of the 1
entire population and of all individuals, on the basis of their active, free and
meaningful participation in development and in the fair distribution of the benefits
resulting there from.
.'-'I'1
]
• •
•
Proper sanitation system, and
Preservation of environment comes under the purview of the Article 21.
• • Right against sexual harassment at workplace :In the case of Vishakha vs.
the State of Rajasthan. the court declared that sexual harassment of a working
woman workplace amounts to a violation of rights under Art ic lcs 14. 15 and 21
c.
;Ie
of the Indian Constitution.
• Right to know or right to be informed: In the case or Reliance
Petrochemicals Ltd. \'S. Proprietors of Indian Express Newspctpers that right to
•
• Right of prisoners: . Even though he is deprived of his -othcr rights. hut he is
entitled to the rights
.... guaranteed under Article 21.
....
• • Right against illegal detention: In the case of Rudul Shah l'S. the State of
Bihar, the petitioner was kept injail for 14 years even after his acquittal and he
•
re
Court held that the trial court is under the obligation to inform the accused of
•
his right to free legal aid.
• Right to speedy trial: The Indian Judiciary in the case of HussianaraKhatoon
vs. the State of Bihar. it was held that the right to speedy trial is an inalienable
right under Article 21 of the Indian Constitution.
• Right to compensation: In the case of Rudul Shah vs. the Stale of Bihar, the
petitioner was kept in jail for 14 years even after his acquittal and he was
awarde 35000 rupees as compensation.
• Right to Privacy: In the recent and the most debated case of Justice KiS.
Puttuswamy (Retd.) vs. Union of India and Other, the Supreme Court's 9 judges
constitutional bench held privacy to be a fundamental right under the
Constitution of India.
• Right to die with dignity: Supreme Court oflndia held in the case of Common
Cause vs. Union of India that right to die with dignity is a fundamental right.
• Right to choose a life partner : Every citizen is free to choose his/ her
partner.
. Transboundary pollution is the pollution that originates in one country but is able
cause damage in another country's environment, by crossing borders through
ways like water or air. Pollution can be transported across hundreds and even
,-'V'Yi3ClUU::S of kilometers. This is why it is called 'Transboundary Pollution'.
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1~
i 28~
27
'-'
Hum:
The most common interpretation of trans boundary pollution is that it is
pollution not contained by a single nation-state, but rather travels across national '-'
borders at varying rates. The concept of the global commons is important to an •
understanding of trans boundary pollution.
As both population and production increase around the globe, the potential for
pollution to spill from one country to another increases. Transboundary pollution can
take the form of contaminated water or the deposition of airborne pollutants across
national borders.
Transboundary pollution can be caused by:
• It can also be caused by the creeping of industrial discharge that eventually has
a measurable impact on adjacent countries
It is possible that pollution can cross state lines within a country and would
indeed be referred to as transboundary pollution. This type of case is seldom held up
as a serious policy problem since national controls can be brought to bear on the
responsible parties and problems can be solved within national borders. It is good to
understand how interstate environmental problems might develop and to have 29·Cc
knowledge as to those regulatory units of national government that have jurisdiction. Ans. ,
28. Noise pollution Co~c
as '1:"'J
Ans. Noise pollution, also known as environmental noise or sound pollution, It is an Coa!t'2
invisible danger. It cannot be seen, but it is present nonetheless, both on land and and"
under the sea. Noise pollution is considered to be any unwanted or disturbing sound repres,
that affects the health and well-being of humans and other organisms. Nic\.l
The cc
Causes for traffic noise pollution atr~
destru,
• Traffic sounds street from cars, buses, pedestrians, ambulances etc.
Coat.
• airports, with constant elevated sounds from air traffic, i.e. planes taking off or Coa~t9
landing
depe~
• workplace sounds, often common in open-space offices Ex:c
• constant loud music in or near commercial venues wetlan
• industrial sounds like fans, generators, compressor, mills May\;
• train stations traffic amoun
• household sounds, from the television set to music playing on the stereo or deep\J
computer, vacuum cleaners, fans and coolers, washing machines, dishwashers, activit)
lawnmowers etc. The~
• events involving fireworks, firecrackers, loudspeakers etc. of slJn.
ecos~
orga~
'"
U
"1
,. I 28
-.- ---~------.~~~~~~~--------~~~-~--
•
Human Diseases Caused by Noise Pollution
)•.
• Hypertension is, in this casco a direct result of noise pollution caused elevated
blood levels for a longer period of time.
• Hearing loss can be directly caused by noise pollution,
• Sleep disturbances are usually caused by constant air or land traffic at night.
lit • Child development. Children appear to be more sensitive to noise pollution.
which may lead to heari ng .
•hI diseases.
•J"
p
• Wear earplugs whenever exposed to louder noise levels
• Maintain a level of around 35 dB in your bedroom at night, and around 40 dB in
your house during the day as Ell" removed
•
n. Ans. A coastal ecosystem is an area where land and water come together.
Coastal ecosystems provide habitat for a wide variety of marine plants and animals
•j•.
n
as well as provide resources and homes to humans around the world.
Coastal ecosystems have distinct and recognizable land forms such as beaches, cliffs
and coral reefs which are highly vulnerable to disturbances. Coastal regions
represent some of the highest biodiversity areas on the planet. The Andaman and
Nicobar Islands in the Indian Ocean are the location of a biodiversity hotspot.
•
The coral reefs there boast as many different species of marine living things as
a tropical rainforest. Unfortunately, degradation of the coastline is leading to habitat
•
destruction and irreversible damage to coastal communities.
Coastal Ecosystem Characteristics
..•
Coastal ecosystems include highly biodiverse marine communities that vary
depending on local topography and climate.
Examples of coastal ecosystems: Bays, estuaries, mangroves, salt marshes and
wetlands.
•• Many fish, turtles and migratory birds nest in coastal areas because of the large
amount of food and also because they are protected from some of the dangers of the
deep ocean. These communities are very sensitive to disturbances caused by human
•
activity, natural disasters and the introduction of invasive species.
The organisms that live in coastal areas are able to thrive because of the availability
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I 3~
LI'I'" II\VI,.I'oI'Llw ir\L L/\~\I
Fun.
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Part-B Answers
1'-'t
30. What do you know about environment? •
Ans. Meaning of Environment: Environment refers to the natural surroundings and
conditions in which we live. Unfortunately, this Environment has come under serious
threat. This threat is almost entirely due to human activities. These human activities have
certainly caused serious damage to the Environment. Most noteworthy, this damage risks
the survival of living things on Earth. Therefore, there is an urgent need to save the
Environment
Environment can be defined as a sum total of all the living and non-living
'-'
3. As
'"
elements and their effects which influence human life. While all living or biotic
elements are animals, plants, forests, fisheries, and birds, etc. The non-living or abiotic
elements include water, land, sunlight. rocks, and air, etc. '-'
•
Environment can be classified into 3 kinds. They are
Natural environment: It includes natural resources, the earth's surface, mountains,
plains, land, water, deserts. storms. cyclones, volcanoes, oceans. climatic factors. and
•
so on. It is also used to refer to biological situations such as complexities associated
with plants and animals. The sustainability of the natural resources is known to 31.~
contribute towards the economy of a country.
An\..,
Man-Made Environment / Social environment: This environment includes mana,
authorities, universities, schools, companies and other establishments along with their Th~~
output legal and their communication ways .. It can further be divided into two: res<]lIr
• Inner Environment the~(
• Outer Environment Pro\:;
or res
The Inner Environment :1t is a social environment and it exists as long as a
pol\.(
particular society exists. It pertains to the regulations, traditions, organizations and
Envirc
institutions. It involves customs and folkways which is existent in every human indi\.;:
group. It is addressed with names such as non-material culture, social heritage etc. govern
This heritage is essential for the social life of humans to flourish; it is known to deg~
have an influence on an individual's life. The altered form of the economic and
physical environment - artificial environment, are seen as two different aspects of
10e~
the man-made environment.
The Outer Environment : Through advancement in the field of science and
.\...t
technology, humans have attempted to alter conditions of their physical environment. l
This outer environment is as a result of these modifications which includes modern .'1
infrastructure in cities, our homes and their associated amenities, our modes of .\.t
communication and transport, our resorts to conveniences and luxury, different kinds • r.
of industry manufacturing luxurious commodities, electrical appliances and so on
which ultimately aims at civilization and urbanization. .'r
.",
The inner and the outer environments are correlated and hence inseparable.
Within the territory ofIndia or under the control of the Government of India.
• P
.~
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~ 30 ENVIRONMENTAL lAW
-.;
.~ Functions of Environment
1. Supply of Resources
• :~
• The environment offers resources for production.
• It includes both renewable and non-renewable resources.
Eg: Wood for furniture, soil, land, etc.
2. Sustains Life
• The environment includes the sun, soil, water, air which are essential for human
life.
• It sustains life by providing genetic and biodiversity.
3. Assimilation of Waste
• Production and consumption activities generate waste.
• This occurs mostly in the form of garbage.
• The environment helps in getting rid of the garbage.
4. Enhances Quality of Life
Ii
• Man enjoys natural beauty like rivers, mountains, deserts, etc.
~-
l~ .~
jf
~
~'A
• These add to the quality oflife.
~
I
~ 31. What is the need for Conservation and protection of environment.
1_•
!~
8
~ Ans. Conservation of environment simply indicates the sustainable use as well as
i
~
management of natural resources which include wildlife, water, air, and earth deposits.
heIr There are renewable and non-renewable natural resources. Conservation of natural
•• I resources generally focuses on the needs and interests of human beings, for instance
the biological, economic, cultural and recreational values.
,~ Protection of environment: Environmental protection refers to any activity to maintain
or restore the quality of environmental media through preventing the emission of
pollutants or reducing the presence of polluting substances in environmental media.
Environmental protection is the practice of protecting the natural environment by
individuals, organizations and governments. This has been recognized, and
governments have begun placing restraints on activities that cause environmental
degradation.
• Keep your garden or green space chemical free. Cut down on your use of
herbicides and pesticides ....
• Don't buy single-use plastics .
• Shop locally, shop organically .
• Record the wildlife near you .
•. •
•
Re-use and Recycle ....
Reduce your carbon footprint. ...
.
---'-
~
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•
•
Avoid peat-based composts ....
Plant pollinator-friendly plants .
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Ans. In the early periods of human history, environment strongly determined the lives
•'-'
and activities of the people. They were very much close to forest and natural resources as
we find in historical documents. Ancient Indian texts Arthasatra,
SathapathaBhrahmanas, Vedas, Manusmruthi, Bruhat - Samhitha, Ramayana,
Mahabharata and Rajatharangini reflected the concepts of forest ecology and .\.1
conservation in a sustainable manner. In the Indus Valley civilization, several
characteristics of the city planning and social structure showed environmental \.I I
awareness. The presence of leaves, wild animals like peacock and one -horned deer,
tigers elephants, bulls in the seals and the mud pots can indicate the pattern of
• j
1
In Rigveda, it has been mentioned that there are five elements which give basis to life ~
and these elements are Earth, Water, Fire, Space and Air. The Rigveda makes a clear
reference to the presence of a protective layer which we know now to be the ozon~
layer that filters the harmful rays of the sun and protects the earth. In Yajurveda, 1t
has been mentioned that yajna be performed by offering butter and firewood into the
sacrificial fire so that it mixes in the atmosphere and makes the environment free froIIl
impurities.
~ 32 r:~I\"f)n~IHFNTAl LAW
Manusmriti mentions about the optimum use of the resources of nature and also
prescribes different punishment for causing injury to plant. . d
The State wets required to maintain forests fines were imposed for cutting tr~es ;n r
damaging forests, forest reserves were for wild animals and they would be kille 0
bound in outside the reserve forests when harmful.
?
33. Discuss the causes for Environmental degradation/ pollution and its effects.. t
Ans. Environmental degradation means reduction in the quality of the environme.~
due to manmade and natural factors. The resources uct depleted and the quality of all,
water and soil diminishes. The natural habitat. th~ forests, the water sourc~s. gets
destroyed and polluted. It is caused directly or indirectly by anthropogenic activItIes.
Kinds of Pollution
I. Land Pollution
2. Water Pollution
3. Air Pollution
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• Unplanned development:
Industrial sites, shopping malls, office spaces, parking grounds, road and rail \.,
networks, construction sites, mining projects, thermal plants, nuclear plants and
all are the major factors that help in worsening environmental pollution. ~
ouV
Ans. Remedies available under common law against Environmental Protection are
In \.l
Indl9
a. Nuisance: Nuisance is related to unlawful interference with one's enjoyment of of tV
land or any right arising from it, thereto. It may be categorized into:
• Public Nuisance ThV
• Private Nuisance.
Public Nuisance: Public nuisance deals with interference with a right pertaining 4J
to public. There are a few remedies available public nuisance in Criminal
Procedure Code, 1973. Section 91 prescribes that a suit may be filed to obtain a
suitable relief or injunction for any cause of action affecting or likely to affect
public nuisance.
"
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~_34 ~ ENVIRONMENTAL lAW
public nuisance that the person was required to take such care under the law.
In NareshDuttTyagi Vs. State of Uttar Pradesh. fumes released from the
pesticides leaked to a nearby property through ventilators that resulted in the
death of three children and fetus in a pregnant woman. It was held by the court
that it was a clear-cut case of negligence.
The concept or strict liability started from the case of Rylands v. Fletcher. "the person
who, for his own purposes, brings on his land and collects and keeps there anything
likely to do mischief, if it escapes, must keep it in at his own peril and if he does not
do so, is prima facie answerable for all the damage which is the natural consequence
.of its escape'" Case law: M.C.MehthaVs Union Of India popularly known as Oleum
Gas Leak Case. In this case, the Hon'ble Supreme Court observed that if a hazardous
or inherently dangerous activity is being carried out in any premises and in case of a
release of such toxic substance any damage is caused, such enterprise is strictly and
absolutely liable for all the damages arising thereto, and any of the exceptions listed
out above are not applicable as a defense in a case of strict liability.
In addition to this, the court also held in the Union Carbide Corporation v. Union of
India that the compensation has to be directly proportional to magnitude and capacity
of the enterprise because such compensation needs to have a deterrent effect.
• Act of God
• Act committed by a third party
• Any fault committed by plaintiff himself
• An act committed after obtaining expressed or implied consent of the plaintiff.
• Natural use of land by the defendant
• Section 268 of the Indian Penal Code, 1860, defines the term public nuisance
and section 290 of the IPC makes public nuisance punishable. Thus, under these
provisions if any act or omission causing injury to any person by polluting the
environment takes place, the same can be subjected to prosecution.
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There are two primary legislations that enlist penal provisions. They are l)
• The Water (Prevention and Control of Pollution) Act, 1974,
•
• Environment (Protection) Act, 1986.
According to Section 47 of The Water Pollution Act, a person is vicariously liable for
the offence committed by the company if such person is in charge of the functions
committed by the company or for conduct ofbusiness of the company.
Conclusion :There are more than enough legislations that try to deal with the menace •
of environment degradation. To deal with the same, there is a need for a strong
integrated legislation that can provide a much clearer and integrated approach which
can provide the necessary protection to environment.
35. Explain the administrative efforts to combat the hazards of noise pollution.
36. V
Ans. Exposure to loud noise can also cause high blood pressure, heart disease, sleep
protc
disturbances, and stress. Noise pollution also impacts the health and well-being of
wildlife.
Some engineering controls so that the workers are exposed to less noise. ~";~
For example: using screens, barriers, enclosures and absorbent materials help to their~
reduce workers' noise exposure. Indian
• separating the noisy area from other workspaces by a sound-reducing partition The iJ
• enclosure of noisy machinery with sound-absorbing material making
• avoiding metal-to-metal contact by using plastic bumpers fores41
• fitting sound-absorbing materials to hard reflective surfaces sectio"
• using conveyor belts rather than roller Cons oj
• repairing and replacing loose rotating parts, worn bearings and gears This A.J
•
•-.- 36 ENVIRONMFNTAI 'AI",
!.1.
• using sound-absorbing material on walls, ceiling and floors to reduce the noise
level due to reverberation.
Administrative controls
• • limiting the time workers spend in noisy areas by job design and job rotation
•'.
s or • providing rest breaks in areas away from a noisy work enviro.
If the control measures are not working effectively, employers should review their
noise risk management programme and make further improvements in noise risk
controls.
• • Noise from roadways and other urban factors can be mitigated by urban
planning and better design of roads.
[1.-"
• Roadway noise can be reduced by the use of noise barriers, limitation of
vehicle speeds,
• alteration of roadway surface texture,
• limitation of heavy vehicles,
1.
'oog • use of traffic controls that smooth vehicle flow to reduce braking and
acceleration, and tire design.
•
• Aircraft noise can be reduced by using quieter jet engines. Altering flight
paths and time of day runway has benefited residents near airports.
•
I.
p 36. Write about the laws relating to the preservation, conservation and
•
protection of forests.
•• Ans. The forests are called the lungs of the environment. They are a factory
of oxygen and various other very important natural resources. Can humans live without
1. their lungs? Similarly, the environment too would not survive without forests.
Indian Forest Act, 1927
The Indian Forest Act, 1927 was passed in 1927 which overrode all previous laws
• making them invalid. This Act empowers the government to take authority of private
forests owned by private owners if it is "needed for a public purpose" as given under
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annual rate of diversion of forest land for non-forestry purposes from about 1. \..I
37 lakh hectare per annum to 0.37 lakh hectare. L,t:
• As per this Act, whenever a forest area needs to be granted approval for COl
diverting it to non-forestry purposes, the same proportion of forest land has to ~
be identified for compensatory afforestation.
• Forest Right Act, 2006
t!
The government in order to redress the injustices done to the forest dwelling 38.~
communities since colonial times, enacted a law called the Forest Rights Act. Some
basic features of the Act are as follows: Pr~
1. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of An\.,.
Rights) Act was enacted on 18th December, 2006 and it came into force menta
January 1, 2008. haru
humar
2. It aims at protecting the rights of forest dwelling communities by giving them thri~
access to forest land and resources and hence conserving their lands.
3. It gives them the title over their lands to protect their culture and tradition by to ~
recognizing their community ownership over a larger landscape.
est~~
agamsl
37. Explain the law relating to the wild life and endangered species, marine life,
coastal ecosystems and lakes etc. Sali\.l
Ans. The Wild Life Protection Act, 1972 is an Act of the Parliament of India enacted
for protection of plants and animal species. Before 1972, India had only five
designated national parks. Among other reforms, the Act established schedules of
protected plant and animal species; hunting or harvesting these species was largely
outlawed.
.,
"I 38 ENVIRONMENTAL LAW
• • The Act provides for the protection of wild animals, birds and plants; and for
,•_
• Schedule I and part II of Schedule II provide absolute protection
• Offences under these are prescribed the highest penalties.
• Species listed in Schedule III and Schedule IVare also protected. but the
penalties are much lower
•.it
• The specified endemic plants in Schedule VI are prohibited from cultivation'
and planting. The hunting to the Enforcement authorities have the power to
compound offences under this Schedule (i.e. they impose fines on the
offenders).
•• Up to April 2010 there have been 16 convictions under this act relating to the death
of tigers.
Article 48 of the Constitution of India says, "The state shall endeavor to
•sf
tl.
protect and improve the environment and to safeguard the forests and wildlife of the
country" and Article 51-A states that "it shall be the duty of every citizen of India to
protect and improve the natural environment including forests, lakes. nvers, and
). 38. What are the Salient features of the Prevention of Cruelty to Animals Act,
1961
Prevention of cruelty towards animals.
ne Ans. Animals, similar to human beings, have the capability of feeling physical and
mental pain. Therefore, they can understand the severity of any physical or mental
)1
1. harm that is inflicted on them. This earth belongs to them as much as it belongs to us
human beings. Thus, it is imperative that other living creatures are allowed to live and
thrive just like us.
With this vision, the Prevention of Cruelty Act, 1960 was passed; purporting
It to punish severely the persons indulging in cruelty against the animals, the
I'
el
against the animals, etc.
Salient features of the Prevention of Cruelty to Animals Act, 1961
1. This act provides for punishment for causing unnecessary cruelty and
suffering to animals.
,.
~
2. This act defines animals and different forms of animals.
3. This Act enshrines the provisions relating to the establishment of an animal
welfare board, its constitution, powers, and functions.
•
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ENVIRONMFNTAI lAW
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4. This act discusses different forms of cruelty, exceptions, and killing of a •
suffering animal in case any cruelty has been committed against it, so as to
relieve it from further suffering. •
5. This act provides the guidelines relating to experimentation on animals for
scientific purposes.
6. This act enshrines the provisions relating to the exhibition of the performing •
animals, and offences committed against the performing animals.
7. This Act provides for the limitation period of 3 months beyond which no
prosecution shall lie for any offences under this Act.
According to Section 2(a) of this Act: animal refers to any living creature excluding a
human being. For animals, it refers' not solely to animals, but also includes birds,
reptiles, etc. .\)
f
Example: tigers, deers, cheetah, dogs, cats, buffaloes, snakes, lizards, alligators,
crocodiles, elephants. etc. .~
Animal Welfare Board J
• t
Section 4 to 10 of this Act enshrines the prOVISIOnsrelating to the constitution,
funding, and functioning of the animal welfare board. Which consists of Director- • 1
General of Forests to the Government of India, ex officio and some other members
appointed by the Central government. S1
.\.i
39. What is Pollution and what are the related Acts to control it ? tl
Ans. Pollution is the process of making land, water, air or other parts of the
.4
environment dirty and not safe or suitable to use. This can be done through the -
introduction of a contaminants into a natural environment as any solid, liquid or
gaseous substance which may tend to be injurious to the environment.
"
• N
\..(
Article Sl-A of the Constitution imposes as one of the fundamental duties of every
citizen, the duty to, protect and improve the natural environment including forests, '-'
lakes, rivers and wild life and to have compassion for living creatures. The • In
~
Parliament enacted following Acts to control the pollution.
The Water ( Prevention and Control of Pollution ) Cess Act of 1977And amended Act
.\.J
1988. ail
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·1 ENVIRONMENTAL LAW
.-------------
-.).
• I 40
• The Water Cess Act was passed to generate financial resources to meet expenses
-
•
• The Act creates economic incentives for pollution control and requires local
authorities and certain designated industries to pay a cess (tax) for water effluent
•
for discharge.
• To encourage capital investment ill pollution control, the Act gives a polluter
11
I-•
ng a
(factory or Industry) 70% rebate of the applicable cess upon installing effluent
treatment equipment.
The Air (Prevention and Control or Pollution) Act of 1981 and amendment, 1987.
Important provisions of this Act are gi\ en below:
ir_ • The Air Act expanded the authority of the central and state boards
• boards.
• Under the Air Act, all industries operating within designated air pollution control
~,
titt, areas must obtain a "consent" (permit) from the State Boards.
• The states are required to prescribe emission standards for industry and
automobiles after consulting the central board and noting its ambient air quality
• standards.
• The Act grants power to Sl'Cll and to test equipment and to take the sample for
• the purpose of analysis from any chimney, fly ash or dust or any other.
• The 1988 amendment act empowered SPCB and CPCB to close a defaulting
• industrial plant.
• • Notably, the 1987 amendment introduced a citizen's suit provision into the Air
'.•
Act and extended the Act to include noise pollution.
Environment ( Protection) Act 1986
• In the wake of the Bhopal tragedy, the government ofIndia enacted the
Environment Act of 1986.
.;
lIt • In this Act, main emphasis is given to "Environment", defined to include water,
air and land and the inter-relationships which exist among water, air and land and
human beings and other living creatures, plants, micro-organisms and property.
• "Environmental pollution" is the presence of pollutant, defined as any solid,
bl liquid or gaseous substance present in such a concentration as may be or may tend
• the environment.
• Through this Act Central Government gets full power for the purpose of
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FNVIRnNI\IlFNTI\I I 1\ 1M
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• The Act ensures that adequate and suitable containers or places are provided
for the discarding of litter by the puhlic. An amendment to the Act has made \.;
provision for the compulsory charging on waste types.
•
• The Health Act 63 of 1977 also provides for the measures to be taken by the
local authorities in order to maintain hygienic and clean condition and prevent
any form of pollution in its district. •
• The National Road Traffic Act. Act 93 of 1996 provides that no person shall
operate or permit to be operated on a public road a vehicle causing noise'
• The Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36
of 1947 control the use of pesticides in South Africa •
• The Occupational Health and Safety Act 85 of 1993 provide regulations for
noise in the workplace and focuses on the health and safety issues affecting
employees in the workplace.
In India, to control vehicular pollution:
• It was advised that the use of lead in gasoline should be banned;
• There should be uniform fuel quality and emission standards across India; •
• Private vehicles should be banned from using diesel
• Manufacturing of diesel fuelled cars should be banned
• A national task force should be established to develop the use of hydrogen gas
as an alternative fuel for cars
There are different Acts also passed in India for the purposes of pollution control such •
as;
• Environment Protection Act of 1986,
• National River Conservation Plan,
• Water (Prevention and Control of Pollution) Act of 1974,
• Central Pollution Control Board and State Pollution Control Boards.
•
Conclusion: An integrated pollution control approach is needed to solve the problems \.I
and each legislation should be explicit and state categorically what it seeks to do.
~
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41. What are the Salient features of The Environment (Protection) Act, 1986.
Ans. The Environment (Protection) Act, 19X6 authorizes the central government to
protect and improve environmental quality. control and reduce pollution from all
sources, and prohibit or restrict the setting and lor operation of any industrial facility
on environmental grounds .. It consists of 4 Chapters and 26 sections. It provides for a
framework that aids the coordination betw ccn the state and central authorities
established under previous environmental laws.
Salient features of the Act
The most prominent features of the Act are enumerated as follows:
Under the Act, the Central Government is empowered to
• Coordinate the actions of State governments. authorities, and officers.
• Plan as well as execute national programs on the prevention, management, and
ahatement of environmental pollution.
• Restrict areas where industries or their processes can or cannot be carried out.
• Examine processes, substances, and materials liable to cause environmental
pollution.
• The Act empowers common citrzens to approach the Courts after a 60-day
notice has been furnished to the competent authorities.
• It bars the discharge and emission of any environmental pollutant beyond the
standard limits by any person carrying industrial operations.
• Stringent penalties have been prescribed for transgressing any provisions of this
Act.
• Under the Act, the person in charge of a place is obligated to inform the
appropriate authorities of any accidental discharge of pollutants exceeding the
specified limits. Once informed these authorities will take requisite remedial
steps to mitigate the pollution caused and the expenses for the same would be
recoverable from the polluter subject to interest.
• The officers empowered by the Central Government can take samples of air,
water, soil, or any other substance from any factory or premises for analysis.
• This Act provides for the establishment of environmental laboratories that work
to protect the environment and people from contamination.
• The jurisdiction of Civil Courts has been barred under this Act.
Its objectives:
• The main objective of this Act is to "provide for the protection and
improvement of the environment and all matter connected with it."
• It also aims to provide deterrent punishment to those who endanger the
environment, health, and safety.
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Landmark cases made under it
ENVIRONMENTAL LAW
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Some of the landmark cases under the Environment (Protection) Act, 1986 can be
specified as under:
• M.C. Mehta v Union of India, AIR 1997 SC 734 (Taj Trapezium Case)
This is the Taj Trapezium case. It arose out of a writ petition tiled before the Supreme
Court. regarding the yellow color of the marble of the TajMahal caused due to air
pollutants and industrial emissions in the area. The Supreme Court relied on its
previous judgment in Vellore Citizens Welfare Forum v Union of India. The Apex
Court gave several directions banning the use of coal and cake in the Taj Trapezium. It
also encouraged the use of Compressed Natural Gas (CNG).
• M. C. Mehta v Union of India, 1997 11 SCC 312 (Groundwater Depletion
Case)
In this case, the petitioner M. C. Mehta tiled a petition before the Hon'ble Supreme
Court of India over the depleting groundwater levels in the country. A near-crisis
situation had developed in many parts of the country and there was no authority to
keep a proper check on it. Thus, the Supreme Court directed the Central Government
to make the Ground Water Board into an 'authority' under the Environment
(Protection) Act 1986. It was bestowed with legal powers so that it can issue licenses
and act against polluters.
The Supreme Court, in this case, put to use the "Polluter-Pays" principle which means
that those who pollute must pay the costs of preventing and repairing the damage due
to the pollution that was caused by them. The Court gave directions to the Central
Government to recover the amount from the defaulters in the case.
• Chairperson Who
].•
• for at last is, or has been, a Judge of the Supreme Court or a High
Court; or
ne
• Has. held the office of Vice-Chairperson two year.
c.
its Vice-Chairperson: Who
• Is, or has been, a Judge of a High Court: or
•It
• Has, held the post of a Secretary to the GO\ ernmcnt of India or any other
post under the Central or a State Government
• • Has, for at least five years held the post of an Additional Secretary to the
•
le
;i.
Government of India or any other post under the Central or a State
Government;
• Has adequate, knowledge of, or experience in. legal, administrative, scientific
n.
to or technical aspects of the problems relating to environment;
~-
• Has for at least three years, least three years. held office as a Judicial Member
or a Technical Member
Judicial Member :Who
• • Has been a member of the Indian Legal Service and has held a post in grade I
of that Service for at least three years.
•
lS
Technical member: Who
• Has adequate knowledge of, or experience in, or capacity to deal with,
~~
•
I,_
Government.
r·• Ans. The National Environment Appellate Authority Act, 1997, under which the
National Environment Appellate Authority can hear appeals regarding the
restriction of areas in which any industries, operations or processes or class of
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industries, operations or processes shall not be carried out or shall be carried out devi
subject to certain safeguards under the Environment (Protection) Act, 1986. VI
gov.
On receipt of an appeal preferred under sub-section:
• The Authority
appellant.
shall pass such orders as it thinks fit, after hearing to the "
Aro
a'-i
• The Authority shall dispose of the appeal within ninety days from the date of reco
\.;
tiling the appeal; Provided that the Authority may for reasons to be recorded in
4~ ,
writing, dispose of the appeal with a further period of thirty days.
\.I
PROCEDURE AND POWERS OF AUTHORITY
~ 01
at
• The Authority shall not be bound by the procedure laid down in the Code of
Civil Procedure, 1908, but shall be guided by the principles of natural justice tl1- l
~
and subject to the other provisions of this Act and of any rules made by the
Central Government while trying a suit
The real challenge is how to attain global competitiveness and economic growth
without compromising the ecological balance. The way out is to achieve sustainable
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46 ENVIRONMENTAL LAW
development through CSR. The major fields in which CSR can playa crucial role to
address the challenges of globalization in India are social, environmental, global
governance and economic sectors.
Around the world, young people are demanding a sustainable and safe way of living
and doing business. Companies will change. The business sector must urgently
recognize, acknowledge and act upon its global responsihilities.
••
In
45. What is Stockholm Declaration on Human Environment, 1972?
i.
Ans. The United Nations Conference on the Human Environment. having met
at Stockholm from 5 to 16 June 1972, to inspire and guide the peoples of the world in
of
the preservation and enhancement of the human environment.
t.• Resolution.
Principles of the Stockholm Declaration:
,• •
•
•
•
Human rights must be asserted, apartheid and colonialism condemned
Natural resources must be safeguarded
The Earth's capacity to produce renewable resources must be maintained
Wildlife must be safeguarded
n.
~
• Non-renewable resources must be shared and not exhausted
• Pollution must not exceed the environment's capacity to clean itself
• Damaging oceanic pollution must be prevented
!I • Development is needed to improve the environment
• •
•
Developing countries therefore need assistance
Developing countries need reasonable pnces for exports to carry
•~I •
out environmental management
Environment policy must not hamper development
~, •
•
Developing countries need money to develop environmental safeguards
Integrated development planning is needed
••
hese
•
•
•
Rational planning should resolve conflicts between environment and
development
Human settlements must be planned to eliminate environmental problems
Governments should plan their own appropriate population policies
:l4i • National institutions must plan development of states' natural resources
and
• •
•
•
•
Science and technology must be used to improve the environment
Environmental education is essential
Environmental research must be promoted, particularly in developing countries
States may exploit their resources as they wish but must not endanger others
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PART - C Answers
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1. There was a massive escape of the lethal MIC gas from the Bhopal plant into
the atmosphere, resulting in death and injury to innocent and helpless persons ~
living in the city of Bhopal. Advise Bhopal plant.
• Facts in Issue:
• There was a massive escape of the lethal MIC gas from the Bhopal plant.
• It resulted in death and injury to innocent and helpless persons
living in the city of Bhopal.
• Issues in the case:
1. What is the liability of Bhopal plant? •
Principle: The principle of absolute liability is similar to strict liability. In the case of
strict liability, a person keeps something dangerous with him. and he knows that even
the slightest mistake would cause a release of that thing resulting in the death of
human beings. So, even if he took proper care and caution but still the thing escaped
resulting in the death ofa man, he can be held liable under strict liability.
The principle of strict and absolute liability differ only at one point. While on
I.~
one hand under strict liability, a person is having options to escape the ability so arisen
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but, on the other hand under absolute liability a person has no such options available.
Case Law: Rylands Vs. Fletcher PI
Judgement: In the given case after the propagation of the rule of Absolute liability, ~
AI)
the Bhopal plant is liable for the Gas leak and has to pay compensation to the effected
people. 'rfi
2. A religious procession was carried out by using loud speakers in residential
\i
locality which caused inconvenience to new infants, patients and aged persons. '-'
up
Advise the residents. \.,
The:
Facts in Issue : foU
• A religious procession was carried out in residential localities. EnviJ
• They used loud speakers in that procession. '-'•
• It caused inconvenience to new infants, patients and aged persons
• Issues in the case:
'-',.
1. What can the residents do to avoid such in convenience in future? '-'•
• Principle: According to The Noise Pollution (Regulation and Control) Rules,
2000 a loudspeaker or a public address system shall not be used except after '-'
obtaining written permission from the authority and the same shall not be used at
night i.e. between 10.00 p.m. and 6.00 a.m.
Loudspeakers and amplifiers or other equipments or gadgets which
produce offending noise once detected as violating the law, should be liable to be
"'-'
seized and confiscated by making provision in the law in that behalf. \;
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50 ENVIRONMENTAL
• When specific instances occur, we must not hesitate to get in touch immediately
•
with Police as well as the Pollution Control Board who have the mandate to enforce
the law.
S
• So in the case also the locality residents should complain to police as well as
• the Pollution Control Board who have the mandate to enforce the law.
• action. Advise.
• Facts in Issue:
•.•
sen
~
1. Is it correct to State Government to grant construct permission for construction of
residential apartments at sea coastline?
:.
Principle: The Ministry of Environment and Forests (MoEF) issued a notification
it, in 1991, under the Environment Protection Act of 1986, to regulate the activities in
coastal areas. As per this notification, the coastal land up to 500 meters from the
High Tide Line (HTL) and up to 100 meters along banks of creeks, estuaries,
•
till
)If
backwater and rivers subject to tidal fluctuations, has been defined as falling under
the Coastal Regulation Zone (CRZ). Under the CRZ notification, HTL is the line on
land up to which the highest tide reaches during spring tide and LTL is line on land
up to which the lowest tide reaches during spring tide.
• The following activities are not permitted in all the CRZ areas, with a few exceptions
• for certain places, for which prior permission from the MoEF ( Ministry of
Environment and Forests) is required.»
• •
•
•
Dumping of ash or any way
Construction activities in ecologically sensitive areas.
Any construction between LTL and HTL except facilities for carrying treated
effluents and waste discharges, oil, gas and similar pipelines and dressing or
altering of sand dunes, hills natural features including landscape changes for
beautification, recreational and other such purposes. Etc.
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Judgement: Yes. An NGO can file a PIL under artic1e 226 in the State High Court
for the cance11ation of permission granted by the State Government to construct
residential apartments in sea coastline.
4. A part of the land of the Zoological garden, Calcutta was allotted by the
Government of West Bengal to the Taj group of hotels for construction of a Five
Star Hotel. Advise.
• Facts in Issue:
•
1. The Ca1cutta Govt. allotted the land of the Zoological garden to the Taj group of
hotels for construction of a Five Star Hotel.
Issues in the case:
• Whether the government of West Bengal was arbitrary and unreasonable in
allotting land for construction of a five-star hotel and not inviting tenders for the
same?
Principle: The main zoo is in the Forty nine acres block ofland. ~'
',"
The said part of allotted land was outside the Zoological garden and separated from
/
it by a 80-100 feet road and is also known as the Begumbari land. The Begumbari land
was given to the Zoological garden under the following terms and conditions which '-'"
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were agreed by the zoological garden in charge Committee .The conditions of the \.II
transfer were: dec
• "that the land is to be used for the purpose of acclimatization only; '-"f
• that Carnivores are not to be kept on any part of it, on any 'account; •
• that the grounds are to be kept clean and neat;
• that the land must be restored to the government if hereafter required, the
Zoological Garden Committee being reimbursed for any expenditure they may
have incurred in building there." In this eight acres of land there are some old
buildings and the vacant land was used for fodder cultivation, for raising flower
nursery, as a sumping ground for huge garbages and as burial ground for dead
animals. •
Judgement: As per the above last condition the land must be restored to the
government if hereafter required. Hence in the given case the Govt. has every right to
allot to the Taj Group Hotels by paying reasonable compensation to the zoological
garden committee if any.
5. State Government issued a notification prohibiting all students from using ~
private transport for going to and from their educational institution. They are
required to only use public transport as that would reduce pollution. Students
and parents allege that this notification violates their personal liberty. Discuss.
"Cc
V
CO)
C)
ENVIRONMENTAL LAW
• Students and parents allege that this notification violates their personal
liberty.
6. A Municipal Corporation has initially embarked a land for public park in its
master plan. Later, the municipal corporation proposed to transfer the same
land for the construction of a private nursing home. Discuss the legality of the
decision.
Facts in Issue:
• lA Municipal Corporation has initially embarked a land for public park in its
master plan.
• Later, the municipal corporation proposed to transfer the same land for the
construction of a private nursing home.
• Issues in the case:
• Is it legal to transfer the embarked for public park land for the
construction of a private nursing home
• Principle: A private nursing home cannot be a substitute for a public park. No
town planner would prepare a blueprint without reserving space for it. Emphasis on
open air and greenery has multiplied and the city or town planning or development
Acts of different States require even private house owners to leave open space in
front and back for lawn and fresh air. In 1984 the BD Act itself provided for
reservation of not less than 15 per cent of the total area ofthe layout.
In the case of M.I. Builders Pvt. Ltd. Vs. RadheyshamSahu& others, , the Apex
Court while considering the action of the Municipal Corporation in handing over
the Jhendawala Park, Lucknow, to a private builder for construction of an air-
'.
construction the Corporation had deprived the quality of life to residents and others
of that area.
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Judgement: Based on the above principle and Supreme Court's judgement in the
given case the proposal of Municipal Corporation to transfer the embarked land '-"J
for public park for the construction of a private nursing home is not legal.
Facts in issue:
• Government intends to construct a nuclear power plant nearer to the sea coast '-'
• There is lot of opposition from the local people to the nuclear power plant. \..;
• They argue that the nuclear power plant poses a threat to the forests and
migratory birds in the locality. '-'
• Issues in the case:
• Are the local people correct in opposing the construction of
plant nearer to the sea coast?
nuclear power '-l
Pril
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** Refer 3rd case Answer
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8. Municipal Corporation of Hyderabad has embarked a certain plot of land
measuring 20 acres for a public park and the same is also entered in the master \".
•
plan of the city. After ten years, due to financial crunch, the corporation has
decided to sell 15 acres of the embarked land to a business house centre for
-\.".
construction of a shopping complex and the public park could be established in
the remaining 5 acres. Mr. 'X' wants to challenge this decision. Advise him. •
J J
•
of the city.
After ten years, due to financial crunch, the corporation has decided to sell 15 acres
lk'
of the embarked land to a business house centre for construction of a shopping i~
complex. The
• And the public park could be established in the remaining 5 acres.
fr'-'
• Mr. 'X' wants to challenge this decision.
Issues in the case:
•
• Does Mr. X succeed in his challenge?
• Principle: The governing authority of any municipal corporation is authorized
to sell real property in established municipal industrial parks or in municipally
designated industrial development areas for industrial development purposes
without regard to subsection (a) or (b) of this Code section
• Judgement :Based on the above principle in the given case also Municipal
Corporation had every right to sell the embarked land to a business house centre for
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"-" 54 nJ'v'iRor-JfvlEi\iTAL LAW
J"1. construction of a shopping complex and the public park could be established in the
remaining 5 acres. So Mr. X cannot succeed in his challenge.
• 9. A PIL was filed by an NGO in the ~igh. Court highlighting the mining
activities which have reduced the Mussone hills of trees and forest cover and
s.
;~
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accelerated soil erosion resulting in landslides and blockage of underground
water. The court ordered for the closure of polluting qUarries. Discuss.
• Facts in Issue :
•
1. • A PIL was filed by an NGO in the High COurt highlighting the mining
activities
I. •
•
The mining activities have reduced the MusSorie hills of trees and
forest cover
The mining activities also accelerated soil erosion resulting in landslides
and blockage of underground water.
V""
• The court ordered for the closure of polluting quarries.
Issues in the case:
1 Is the court order correct for the closure of polluting qu .
,-~i"
. arnes.
Principle: Negative Effects of Quarrying
• Disfigures the Environment. Quarrying involves the production of waste materials.
Although some quarries do not produce ...
• Noise Pollution. Quarrying produces a lot of noise.
• Air Pollution. Dust produced during quarrying is a major Contributor to air'
....
tl •
pollution ..
Negative Impact on Health. Health is a crucial factor When it com t
When people inhale dust.
Judgement: Basing on the above negative effects of quarrying activ'f
. . d . . lIes
the court
.
es 0 quarrymg .
:. 10. Devotional music i~ ~Iay.ed using !oud speakers everYday from 4am to I1pm
in a Temple. People living In the nelghbo~hood complained of Noise pollution.
" Tille temple management argues that plaYIn~ devotional mUsic is a part of the
freedom of religion and hence cannot be curtaIled. Discuss.
"fit •
•
Facts in Issue:
Devotional music is played using loud speakers every day.
• Music is played every day 4am to llpm in a Temple.
iAl • People living in the neighborhood complained of Noise Pollution
rally
• The temple management argues that playing devotional music is a part of the
A freedom of religion.
• So people argued that it cannot be curtailed.
"
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11. 'Z' company fails to comply with the rules of Air (Preventive and Control of
Pollution) Act, 1981. What action can be taken against the company?
• Facts in Issue:
• Z' company fails to comply with the rules of Air (Preventive and Control
of Pollution) Act, 1981.
~l!
• Issues in the case:
J"l
• 1.What action can be taken against the company?
~(
Principle: Whoever contravenes any of the provisions of this Act or any order or
direction issued there under, for which no penalty has been elsewhere provided in
this Act, shall be punishable with imprisonment for a term which may extend to
:r.
three months or with fine which may extend to ten thousand rupees or with both, '-'1
acc
and in the case of continuing contravention, with an additional fine which may
~
extend to five thousand rupees for every day during which such contravention
continues after conviction for the first such contravention.] V
Offences by com panies.- Where an offence under this Act has been committed by •
a company, every person who, at the time the offence was committed, was directly
in charge of, and was responsible to the company for the conduct of the business of
the company, as well as the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly: Provided that
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ENVIRONMENTAL LAW
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1.S
nothing contained in this sub-section shall render any such person liable to be
proceeded against and punished accordingly:
• Judgement: Based on the above principle in the given case alsoevery person who,
at the time the offence was committed, was directly in charge of, and was
~
• responsible to the company will be liable to be proceeded against and punished
accordingly.
•
some municipal cities.
• A petitioner suspecting irregularity in issuance or license applied tor the
• copy of building plan and proceeding to grant license under the constitutional
provisions.
•
I
copy of building plan and proceeding to grant license under the constitutional
provisions?
•
If
s~ts out the rules and procedures regarding citizens' right to information. The RTI
BIU was passed by Parliament of India on 15 June 2005 and came into force with
~ffect from 12 October 2005. As per this Act any common man obtain the required
·0'• Information from government organizations by paying required fee.
Judgement: As per the above principle in the given case the petitioner can apply
for the copy of building plan and proceeding to grant license by Municipal
Corporation under the constitutional provisions i.e., RTI.
Corporation is liable to pay compensation for the thousands of people who died and
~
injured in that bomb explosion in the company.
15. Fumes discharged from the smelter of mining company at trail (British
'-'
Columbia) had polluted the air on the American side of the border. US
complained this as a result of an agreement between the US and Canada for
'-'
the settlement of the dispute. Advise US. \..,
Facts in Issue:
• Fumes discharged from the smelter of mining company at trail (British '-'
Columbia). \.,
• Fumes had polluted the air on the American side of the border.
JBSER~ ~
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• US complained this as a result of an agreement between the US and Canada
for the settlement of the dispute.
Issues in the case:
• What is the remedy for America for its air pollution?
•s,
he
Principle: The given case is identical to the case Trail Smelter Case (United
States v Canada.
• to plant life, forest trees. soil, and crop. yields across the border in Washington State
in the United States (plaintitl).
The United States (P) sought damages from Canada by suing them to court and
also prayed for an injunction for air pollution in the state of Washington. by the
Trail Smelter, a Canadian corporation which is domiciled in Canada (D)
Trail smelter arbitration: By looking at the facts contained in this case. the
arbitration held that Canada (D) is responsible in international law for the conduct
of the Trail Smelter Company and Canada had to pay the United States for
damages, and further that it was obliged to abate the pollution. In delivering their
decision, the tribunal made an historic and often-cited declaration: Under the
principles of international law, as well as of the law of the United States, no State
has the right to use or permit the use of its territory in such a manner as to cause
injury by fumes in or to the territory of another or the properties or persons therein.
Judgement: Based on the above judgement in the given case also Canada had to
pay the United States for damages, and further that it was obliged to abate
the pollution.
16. In Ratlam Municipal area, there was full garbage and public excretion etc. A
PIL was filed for the abatement of nuisance. Advise.
Facts in Issue :
• In Ratlam Municipal area, there was full garbage and public excretion etc
• A PIL was filed for the abatement of nuisance.
Issues in the case:
• What is the remedy for this nuisance ?
• Principle: Public health, sanitation conservancy, and solid waste management etc
are the main responsibilities of Municipal corporations. So residents of any
effected areas can file a case under Sec l33 of Cr.PCto the Sub-Divisional
Magistrate. Not only residents any person can file a public Interest Litigation (
PIL ) in the court.
• Judgement :Based on the above Principle in the given problem the person who
files the PIL will be successful in his attempt to get rid of their garbage and
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ENVIRONMEN fAL LAW
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excretion problem because the court will order the Ratlam municipality to do the .It
needful immediately. ~(
17. Y Company fails to comply with the rules of Water Prevention and Pollution Act ,
1974. What action can be taken against the company?
• Facts in Issue:
• Company fails to comply with the rules of Water Prevention and Pollution Act, v:
1974. the
• Issues in the case: '-t~
1. What action can be taken against the company?
\.I
• Principle: Who ever fails to comply with the provision or section 21, 22' or with
direction as per sec 31 (A) of Water Prevention and Pollution Act, 1974. shall be
punishable with minimum imprisonment of one and half year extending up to 6
'-'
years and with tine in case the failure continues, an additional fine extending to ~~
5000 Rs for every day during which such failure continues. The above terms of
imprisonment ~r
in extreme case may extend to seven years with fine.
Judgement: Based on the above principles in the given case Y company failed to ~
comply with the provision off section 21 , 22 or with direction as per sec 31 ( A).
Hence the Y company shall be punishable with minimum imprisonment of one
'-'1
and half year extending up to 6 years and with fine. (J
rec
18. Municipal corporation of Hyderabad has earmarked a certain plot" of land
measuring 20 acres for a public park and the same is also entered in the master \.I'
plan of the city. After ten years, due to financial crunch, the corporation has 2l)
decided to sell 15 acres earmarked land to a business house for the construction stoc
of a shopping complex and the public park could be established
remaining 5 acres. Mr. X wants to challenge this decision. Advice him.
in the v
of it
Facts in Issue: ~
• Municipal corporation of Hyderabad has embarked a certain plot of land
~
measuring 20 acres for a public park and the same is also entered in the master
plan of the city.
'-'•
• After ten years, due to financial crunch, the corporation has decided to sell 15
acres of the embarked land to a business house centre for construction of a
shopping complex. •
• And the public park could be established in the remaining 5 acres. tM
• Mr. 'X' wants to challenge this decision.
Issues in the case: '-'
• Does Mr. X succeed in his challenge? }\.,
Principle: The governing authority of any municipal corporation is authorized to
sell real property in established municipal industrial parks or in municipally '-'
the
designated industrial development areas for industrial development purposes without
regard to subsection (a) or (b) of this Code section h\.t
due
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60 ENVIRONMENTAL LAW
.. Judgement: Based on the above principle in the given case also Municipal
Corporation had every right to sell> the; embarked land to a business house centre for
•". construction of a shopping complex and the public park could be established in the
remaining 5 acres. So Mr. X cannot succeed in his challenge.
.. 20. A state government after long time of declaration of a sanctuary reduced the
area from 765 sq Kms to 440 sq kms on the ground of economic development of
the state. Advice.
• • A state government after long time of declaration of a sanctuary reduced the area
from 765 sq kms to ,440 sq krns
)•
ith
• The State Government did so on the ground of economic development of the
,
jt state.
Issues in the case:
,l.
• Can the government reduce the area of sanctuary
Principle: The state government can fix and alter boundaries of the National Parks
and sanctuaries with prior consultation and approval with National Board of
Wildlife. There is no need to pass an act for alternation of boundaries of National
Parks.
me
•;At Judgement: As per the above principle in the given case the state government can
reduce the area 765 Sq Kms. to 440 Sq Kms. on the ground of economic
development of the state'.
t.
~t 21. In a residential locality A is involved in a business of loading, unloading and
stocking fodder. It has become health hazard to the residents of a locality, as the
whole atmosphere was polluted due to dust particles of the fodder. B as resident
of the locality approaches you. Advice him.
• stocking fodder.
• It has become health hazard to the residents of a locality, as the whole
•..
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atmosphere was polluted due to dust particles of the fodder .
• B as resident of the locality approaches you .
Principle: This case is similar to the case of Ajeet Mehtha V State of Rajasthan.
It
1_ In Ajeet Mehta v. State of Rajasthan, it was complained by the petitioner that
lOut. the business involving loading, unloading and stocking of fodder had become serious
health hazard to the residents of the locality as the whole atmosphere was polluted
due to fine dust particles of the fodder, the inhaling of which caused number of
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health problems. The City Magistrate passed an order under Section 133 of Cr.p.C.1 ~
directing to remove the said business within 15 days from that place. The Rajasthan
High Court upheld the order of the Magistrate. The stand taken by the Court supports i
the proposition that public health cannot be allowed to suffer on account of personal ~ '-'
interest involved in the business. It also fortifies that the right available to an ,i.·
individual to carry out any trade, business or calling under Article 19 (1 )(g) is
subject to considerations of public health. "
Judgement: Based on the above case judgement in the given case B can tile a \J
petition in a city Magistrate court and can get the business removed from their
colony and can get rid of those health problems arise due to fine dust particles of V
the fodder.
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