5 Year B.A. B.L. Course - III Semester Materials PDF

DIRECTORATE OF LEGAL STUDIES Chennai - 600 010 5 Year B.A. B.L., Course Semester System II nd Year III - Semester SI.No Subject...

DIRECTORATE OF LEGAL STUDIES Chennai - 600 010 5 Year B.A. B.L., Course Semester System II nd Year III - Semester SI.No Subject Subject Code Page No. 1. English - II FQA 3 2. International Relations FQB 41 3. Law & Economics FQC 81 4. Law of Contract - I FQD 107 5. Family Law - I FQE 171 COURSE MATERIALS 2013-2014 Compiled by: Dr. N. Kayalvizhi M. L., Ph.D., Asst. Professor, Dr.Ambedkar Govt. Law College, Chennai - 600 104 First Compilation : Dec 2012 Second Compilation of Re-edition : Oct 2013 Copyright © Director of Legal Studies, Chennai - 600 010. For Your Information : The Registrar, The Tamil Nadu Dr. Ambedkar Law University “Poompozhil”, 5, Dr. D.G.S. Dinakaran Salai, Chennai - 600 028. Telephone : (044) 2464 1212, 2464 1919, Tele - Fax : (044) 2461 7996 Email : [email protected] : [email protected] Website : http://www.tndalu.ac.in The Directorate of Legal Studies, Kilpauk, Chennai - 600 010. Telephone : (044) 2532 1394 Email : [email protected] Website : www.tndls.ac.in Dr. Ambedkar Government Law College, Chennai -600 104. Telephone : (044) 2534 0907 Email : [email protected] Website : www.draglc.ac.in Government Law College, Madurai - 625 020. Telephone : (0452) 253 39 96 Email : [email protected] Website : www.glcmadurai.ac.in Government Law College, Tiruchirapalli - 620 023. Telephone : (0431) 242 0324 Email : [email protected] Website : www.glctry.ac.in Government Law College, Coimbatore - 641 046. Telephone : (0422) 242 2454 Email : [email protected] Website : www.glccbe.ac.in Government Law College, Tirunelveli - 627 011. Telephone : (0462) 257 8382 Email : [email protected] Website : www.glctvl.ac.in Government Law College, Chengalpattu - 603 001. Telephone : (044) 2742 9798 Email : [email protected] Website : www.glccgl.ac.in Government Law College, Vellore - 632 006. Telephone : (01416) 224 1744 Email : [email protected] Website : www.glcvellore.ac.in Printed at : Abna Traders, Chennai - 45, Cell : 98400 16816. Email : [email protected]  1. English - II I. THE DIVISIONS OF THE LAW Law is the element of society and also an essential medium of change. A knowledge of law increases one’s understanding of public affairs. Its study promotes accuracy of expression, facility in argument and skill in interpreting the written word as well as some understanding of social values. DISTINCTION BETWEEN CRIME AND CIVIL WRONG The distinction between crime and a civil wrong is in essence quite simple. The distinction does not lie in the nature of the wrongful act itself. In very many cases, the same act may be both a civil as well as a criminal wrong. For example if a cloak room employee runs away with a bag entrusted to him, he commits the crime of theft and two civil wrongs namely the tort of conversion and breach of contract. As a result two sorts of legal proceedings can be taken against him, a prosecution for the crime and a civil action for the tort and breach of contract. The above illustration clearly shows that the true distinction between a crime and a civil wrong resides not in the nature of the wrongful act but in the legal consequences that may follow it. In criminal proceeding there is a prosecutor prosecuting a defendant and the result of the same prosecution, if successful, is the conviction and the accused may be punished by one of a variety of punishments ranging from fine to death. In civil proceedings the person instituting a suit is called plaintiff and the opposite party is the defendant. The proceedings if successful, will result in judgment for the plaintiff by way of order for payment of compensation, specific performance, declaration of title, recovery of possession, injunction etc. THE CLASSIFICATION OF CIVIL WRONGS Civil wrongs are broadly classified into three categories namely the breach of contract, tort and breach of trust. Breach of contract implies failure on the part of one of the parties to perform his part of legal obligations arising out of the contract. In this context it is important to note that a contract need not be in a formal document. It can be oral also. Every time a transaction is made a contract is entered. Tort is a civil wrong independent of contract. It gives rise to an action for damages irrespective of any agreement not to do the act complained of. It includes such wrongs as assault, battery, false imprisonment, trespass, conversion, defamation, negligence and nuisance. A trust is an obligation enforced by courts. A trustee who fails to fulfill his obligation is liable for the breach of trust. In the case of the private trusts the beneficiaries may be determinate where as the beneficiaries under the public trust are indeterminate. For example, in case of a charitable trust there need not be any definite beneficiary but the property is held on trust for the public as a whole or for some section of it. Apart from these three classes of civil wrongs there is another type of civil obligation called the Quasi contractual obligation. In quasi contact, though the parties are not liable in contract, they are liable for injustice. For example, if ‘A’ pays some amount to ‘B’ by mistake thinking that ‘A’ owes the amount to ‘B’ it can be recovered as the law treats it as if B had contracted to repay it. 3 ENGLISH - II SUBSTANTIVE AND ADJECTIVAL LAW : A distinction cutting across between civil and criminal law is that between substantive and adjectival law. Substantive law lays down peoples rights, duties, liabilities, and powers. Adjectival Law relates to the enforcement of rights and duties. It is mainly concerned with procedural laws. For example, Civil procedure, Criminal procedure and Evidence. THE TITLE OF CASES. It is important to know the rules for naming of cases. Criminal trials are differently named based on the two main divisions of crimes as indictable offences and summary offences. Indictable offences are more serious offences triable in the crown court. Trials on indictment are in the name of the Queen or the King who is on the throne. Reg (Regina) or Rex respectively both conveniently abbreviate to ‘R’. Thus Reg V Sikes or Rex V Sikes may both be written R V Sikes. In some types of criminal cases the title of the cases will not contain Reg or Rex before V, but will contain the name of a private person. This happens when the case is tried summarily before magistrates i.e. justices of peace. Civil cases will usually be cited by the names of the parties (eg) Rylands V Fletcher. If the Queen or the King as representing the Government, is a party, she is, in civil cases called “The Queen” and similarly with the King, thus British Coal Corporation V The King; but ‘R’ may also be used, when an appeal is taken to the Court of Appeal (Civil Division) the name of the appellant is put first. This means that the names may become reversed, in some cases where a will is being interpreted, the name of the case is “In re (in the matter of) somebody or something; for instance “In re Smith”. Certain applications to the court are called “Ex Parte”. Ex P smith means on the application of Smith. In the probate cases i.e. cases concerned with the proof of a will, the title In Bonis i.e. in the Goods of- In bonis Smith may be used. COURTS WITH CIVIL JURISDICTION The Courts with original jurisdiction are the High Courts and County Courts. The High Court is divided into three divisions : The Queens division, the Chancery division and Family division. The First administers primarily the common law, the second equity and the third probate, divorce and admiralty cases. A civil trial in the High Court is before a single judge, generally sitting without a jury. The judges may sit in London or Provinces. High court cases outside London are often taken by Deputy High Court Judges or plain Barristers. The less important civil cases are tried in the county courts. Appeals from both the High Courts and the County courts lie to the Court of appeal. The Court of appeal generally sits with three members, and there will be several such courts in action at the same time. When an appeal is taken to the court of appeal either from the High Court or from the County court, a further appeal lies, with leave, to the House of Lords. However the system of two appeals is subject to criticism among the jurists. A civil case may go on appeal direct from the High Court to the House of Lords under the “Leap Frog” procedure introduced by the Administration of Justice Act 1960. This can happen with the consent of the parties and on certificate from the judges, if the case involves the interpretation of the legislation or is governed by a previous decision of the court of appeal or House of Lords which one of the parties wishes to overturn. COURTS WITH CRIMINAL JURISDICTION The crown court is the main criminal court in England. It was created by The Courts Act 1971. A criminal trial in the crown court is always by jury. The court is normally presided over by a circuit judge or recorder who controls the trial and directs the jury; but it may also be 4 ENGLISH - II constituted with a High Court Judge. Appeal from the crown in the criminal cases lies to the court of appeal (criminal division). The appeal may be on law or fact or against sentences, but only the defendant can appeal and not the crown. On a successful appeal against conviction the court will quash the conviction; but it may substitute a conviction of some other offences of which the jury could have convicted. From the court of appeal a further appeal lies in important cases with leave, to the House of Lords. The lower appellate court must certify that a point of law of general public importance is involved and it must appear to the House of Lords that the point ought to be considered by the House. Summary offences i.e. crimes not triable on indictment, are triable without a jury by magistrate’s courts. Many crimes though falling within the category of indictable offences, can be tried in magistrate’s courts if certain conditions are satisfied; they are said to be triable both ways. Appeal from Magistrate’s courts in criminal cases are similar to those in civil cases. The defendant may appeal to the crown court, which rehears the whole case, there is no jury, but atleast two magistrates sit with the judge or recorder. A case may also be stated on a point of law for the decision of a divisional court of the Queen’s Bench Division and a further appeal may be taken from the divisional court, subject to restrictions, to the House of Lords. An appeal by way of case stated is open not only to the defendant but also to the prosecutor, whereas in trials on indictment there is no appeal from an acquittal. The Hierarchy of courts, both civil and criminal, can be represented diagrammatically as follows: The Hierarchy of Courts in England Civil Criminal House of Lords Summary offence Indicatable and Indicatable offence tried on Indictment Court of Appeal (Civil Division) Offence tried Summarily House of Lords Leap Frog County Court House of Lords Court of Appeal (Civil Division) High Court Divisional Court Crown Court of High Court (on cases stated) Crown Court Magistrate Court 5 ENGLISH - II The Supreme Court of United Kingdom. The Supreme Court of United Kingdom was established by part 3 of the Constitutional Reforms Act 2005 and started work on 1st of October 2009. It assumed the judicial function of the House of Lords which were executed by the lords of appeal in ordinary, commonly called Law Lords. It is the apex court in all matters under English Law, Northern Irish Law and Scottish Civil Law. It is the Court of last resort and the highest appellate court in the United Kingdom. It is located in Middlesex Gvildhall, London. 2. COMMON LAW AND EQUITY Common law and equity are two important legal terms that are likely to confuse the students of law. Glanville Williams explains the tenor of these terms with illustrative examples. THE COMMON LAW The phrase common law seems a little bewildering because it is always used to point a contrast and its precise meaning depends upon the contrast that is being pointed. Originally common law meant the law that was not local law, that is, the law that was common to the whole of England. This may still be its meaning in a particular context, but it is not the usual meaning. More usually the phrase will signify the law created by the custom of the people and decisions of the judges. When the phrase Common law is used in this sense it may include even the local law in the form of local custom which in meaning is not common law. Again the phrase may mean the law that is not equity, in other words it may mean the law developed by the old courts of the common law as distinct from the system technically called equity developed by the old court of Chancery. In this sense it may even include statutory modifications of the common law. Finally it may mean the law that is not the foreign law. Thus it is seen that the precise meaning of the phrase ‘common law’ depends upon the particular context in which it is used and the contrast that is made. COMMON LAW AS MADE BY JUDGES. When the term common law is used in contrast to the statutory law, it may mean the body of law produced by decided cases without the aid of legislation. It refers to the power of judges to create new law under the guise of interpreting the existing common law. EQUITY Some words have legal meaning very unlike their ordinary one. In ordinary language equity means natural justice. Originally, indeed, this system was inspired by ideas of natural justice and that is why it acquired its name; but nowadays equity is no more natural justice than the common law. It is in fact a particular branch of law in England; it is not law only in the sense that it is not part of the common law. The development of equity could be traced to the middle ages when the courts of common law failed to give redress in certain types of cases where redress was needed. This disappointed litigants petitioned the king, who was the fountain of justice, for extraordinary relief. The king through his chancellor eventually set up a special court, the court of chancery to deal with the petitions. The rules applied by the court of Chancery became regular part of the law of the land. The most important branch of equity is the law of trusts but equitable remedies such as specific performance and injunction are also much used. In case of conflict between the rules of the 6 ENGLISH - II common law and rules of equity, equity came to prevail. This was by means of what was called common injunction. Defiance of the order of the court of Chancery was considered contempt of court. THE JUDICATURE ACT OF 1873 As a result of the judicature act of 1873, the old courts of common law and the court of Chancery were abolished and in their place a single Supreme Court* of Judicature was established. It had full power to administer both law and equity. The common injunctions were abolished and instead it was enacted that in cases of conflicts between the rules of equity and the rules of common law, the rules of equity should prevail. In this context it has to be understood that though the Judicature Act fused the administration of law and equity, it did not fuse law and equity themselves. To be more precise, the two streams have met and now are in the same channel, but their waters do not mix. In some cases there may be difficulty in distinguishing between law and equity. The rule of equity has to be read in the light of the whole complex of rules developed by chancellors. To take an illustration of an equity rule ‘he who comes to equity must come with clean hands’. This rule will apply wherever the plaintiff is relying upon an equitable right but not necessarily when he is relying on a common law right. In order to explain this vividly, the author refers to an eviction case brought by a land lord on his tenant. The tenant had an equitable lease of the premise, i.e. not a formal lease under seal, but an informal lease valid only in equity. The tenant, however, had broken the terms of his equitable lease, for shortly after receiving it he had assigned it to be a company by the name of Saxon Ltd. The defendant’s main defence was that, although he might be liable to damages for having broken his covenant not to assign, he could not be evicted from the premises. Had the document been a legal lease this defence would have been a good one, for the lease did not contain a proviso for reentry on breach of covenant. In the present case, it was an equitable lease, and by breaching an important term the tenant had soiled his hands and therefore lost his lease. Consequently the action succeeded. It is to be seen that the principles of common law and equity, the two essential elements of the law of England need to be properly understood by the student of law. The reason is that these principles are inextricably interwoven with the legal systems of all civilized nations. 3. THE MECHANISM OF SCHOLARSHIP Glanville Williams lays stress on the need for an upcoming lawyer to learn to use legal materials by making the best use of law library. Since law is a living science, no facility of publishing and printing can even perfectly keep pace with it. Therefore, a student of law besides taking lecture notes, must always consult the concerned authorities by referring to the latest publications. Besides familiarising with the law reports and statute books, a lawyer should get to know his way about the library as a whole, together with its catalogues and books of reference. THE LAY OUT OF THE LAW LIBRARY There will probably be a catalogue of contents of the library or a card index near the entrance to the library. In fact there may be two such catalogues or indexes one arranged alphabetically under authors and another arranged by general subjects. They are both open to the use of readers. There may be different methods adopted by different libraries and the students must learn to have access to materials by adopting themselves to the methods followed in them. 7 ENGLISH - II  Near the catalogues and card indexes there will probably be works of reference, like dictionaries and bibliographies. The law reports, statutes and periodicals will probably be found in special sections of the library. This section is usually called as the reference section and it may be classified on the basis of special subjects such as constitutional law, international law, criminal law etc. Most of the rest of the library will be taken up with law text books. These may be arranged alphabetically under authors or they may be classified by subjects but may be arranged alphabetically under authors within each subject. Where there is no subject arrangement, and it is desired to find books relating to a particular subject, it will be necessary to consult the subject catalogue in the library. LAW REPORTS Law reports are reports of more important cases decided by the superior courts. Williams exhaustively deals with the practice of reporting the English cases very old and new. Pre - 1865 reports were produced briefly by private reports under their own names. Altogether there were some hundreds of different series, though many of them ran only for a short time. Most of them have been reprinted in a series known as the English reports, abbreviated as E.R. In 1865 there commenced the semi official law reports published by the incorporated council of law Reporting. At present they are published in three series, one for each division of High Court or Queens Bench Division (Q.B.), Chancery Division (Ch), Family Division (Fam). The decision of the House of Lords will be reported in a separate series called the Appeal Cases (A.C.). At the head of the reports there are words called catch words, indicating briefly what the case is about. They enable the reader to make sure that the case is relevant to the point he is concerned with. Then comes the head of the note which is again not part of the report but simply a summary written by the reporter. It is useful as a guide to the judgments. STATUTES Statutes constitute important source material for lawyers. Statutes are amended from time to time, so that often the law has to be gathered by reading two or more statutes side by side. This difficulty is often overcome by consolidating both original Act and the amending Act. But then the problem is that a consolidating statute does not set out the common law. The process of setting out both statute and common law as a single, well-ordered body of law is called codification. The main body of a statute is divided into sections and sections may be sub-divided into subsections. Thus it is seen that law library is a very useful guide for a lawyer in as much as it familiarises him with the techniques of finding the treasure of knowledge necessary to become a successful lawyer. 4. CASE LAW TECHNIQUES In English legal system previous decisions are followed within more or less well -defined limits. The like cases shall be decided alike and therefore mentioned as precedents. A decision on a point of law followed as the correct exposition of law in subsequent decisions is called a precedent on the point. A judicial precedent speaks in England with authority. It is not merely evidence of the law but a source of it and the courts are bound to follow the law that is so established. 8 ENGLISH - II Ratio decidendi and obiter dictum. It is not everything said in a judgement that is reckoned as law. Only the ratio decidendi therein forms law. The ratio decidendi of a case can be defined as the materiel facts of the case plus the decision thereon. What facts are legally material depends on the particular case. For example , in an action for injuries sustained through negligent driving, the defendant’s name, complexion, address etc., are facts which are not material. On the other hand the fact that the defendant drove negligently and the fact that in consequence he injured the plaintiff are material and a decision in favour of the plaintiff on such facts will be an authority for the proposition that a person is liable for causing damage through the negligent driving of a vehicle. Glanville Williams, for better illustration of the way ratio decidendi is extracted , cites a case that is Wilkinson vs. Downton, decided in 1897. In this case, the defendant represented to the plaintiff that her husband was smashed up in an accident and was lying with both legs broken. All this was false. The effect of the statement on the plaintiff was a violent shock to her nervous system resulting in weeks of suffering and medical care. The essential facts of the pith of the judgement were “The defendant by way of what was meant to be a joke told the plaintiff that the latter’s husband had been smashed up in an accident. The plaintiff who has previously been of normal health, suffered a shock and serious illness. The decision was that the defendant was liable not perhaps for the tort of deceit but because the defendant had wilfully done an act calculated to cause physical harm to the plaintiff and had in fact caused such harm. However from the whole thing that is material facts plus the decision, the wider ratio that can be extracted is “whoever wilfully does an act which is calculated to and does cause physical harm is liable in tort”. The above ratio in Wilkinson’s case was applied in a subsequent case in 1919 that is Janvier vs. Sweeney, wherein the defendant threatened to arrest and prosecute the defendant, a foreign servant girl, if she did not give certain information. Distinction between ratio decidendi and obiter dicta. As it is the ratio decidendi that is reason for the decision of a case that alone creates a binding precedent, it is very essential to understand the distinction between ratio decidendi and obiter dicta. Ratio decidendi “Ratio decidendi” means that legal principle which has been formulated and applied in deciding a point of controversy in the cases. However, in the process of interpreting a decision for the purpose of extracting the Ratio, a judge may be restrictive or non restrictive. Restrictive distinguishing is the process of cutting down the expressed ratio decidendi so as to interpret it as narrowly as possible. Non-restrictive distinguishing occurs where a court accepts the express ratio decidendi of the earlier case without curtailing it, but finds that the case before it does not fall with in the ratio decidendi because of some material difference of the fact. Obiter dicta Obiter dictum is a mere saying by the way, a chance remark, which is not binding upon future courts. To be more precise, obiter dictum is a legal principle discussed in the judgment but not applied to the case. It may be respected according to the reputation of the judge, the eminence of the court and the circumstances in which it came to be pronounced. The reason for not regarding an Obiter dictum as binding is that it was probably made without consideration of the cases on the point. In some cases a judge may illustrate his general reasoning with reference to hypothetical situations and the law which he considers to apply to them. These observations, 9 ENGLISH - II though not binding, are important because they not only help to rationalise the law but also suggest solutions to problems not yet decided by the courts. DIVERGENT OPINIONS The extraction of ratio decidendi becomes more complicated when different members of a composite court express different opinions. Where the opinion of different judges differs so greatly that there is no majority for any single view, all that can be done, to ascertain the ratio decidendi, is to add up to the facts regarded as material by any group of judges whose votes constitute a majority, and to base the ratio on these facts. THE HIERARCHY OF AUTHORITY - BINDING FORCE OF PRECEDENTS The general rule is that every court is bound to follow any case decided by a court above it in the hierarchy. When the appellate court reverses or overrules a case decided by the court below, the case so reversed or overruled loses all authority. Reversal means the same case is decided the other way in appeal, whereas overruling takes place when a decision of a lower court is considered in a different case taken on appeal and held to be wrongly decided. In 1966 the House of Lords, departing from its earlier practise, declared that it would not be bound by its own decision. The court of appeal generally, binds itself both on civil and on criminal sides. However, in exceptional cases it can refuse to follow its own previous decisions. Such situations arise where the earlier decision was inconsistent by inadvertence or otherwise, an earlier decision that has been overruled by the House of Lords or where the earlier decision was Per Incuriam (i.e) by oversight - non - consideration of a relevant statute, contrary to the provisions of the statute or non - consideration of a relevant decision of the House of Lords. As a special rule the Criminal Division of Court of Appeal sitting as a full court of five judges, instead of the usual three can overrule its own previous decision rendered against the defendant. But the court is bound by its own decision rendered in favour of the defendant on a point of substantive law. Towards the close of the 20th century, there was a strong current of judicial opinion spearheaded by Lord Denning in favour of general freedom from the courts own past decisions which appear to be clearly wrong. Nevertheless, Denning’s views could not prevail for want of appeal from the House of Lords. The position maintained by the House of Lords was that the exceptional rules freeing the court of appeal from the authority of its own previous decisions did not operate to free it from the authority of the House of Lords. The House of Lords never does anything per incuriam. The decisions of the Divisional Courts are binding precedents for magistrates courts in other cases. Also, Divisional Courts bind themselves. However, in criminal cases they exercise the same freedom as the Court of Appeal. But the Divisional Court does not bind the Crown Court judges who try cases with juries because they do not form part of the same judicial hierarchy. The Crown Court is the branch of the Supreme Court having equal status with the High Court therefore with a Divisional Court of the High Court. Single judges of the High Court trying civil cases bind County Courts and the magistrates is in their jurisdiction but they do not absolutely bind other High Court judges. One High Court judge may refuse to follow another judge. This may result in conflict of decisions which have to be settled by the Court of Appeal. Decisions of court inferior to the High Court do not create binding precedents, nor do they bind themselves. 10 ENGLISH - II CIRCUMSTANCES AFFECTING THE WEIGHT OF A DECISION AS A PRECEDENT There are certain circumstances that increase or diminish the authority of a decision as the binding precedent. The eminence of the particular judge or judges, reserved judgement, frequently followed judgments, judgements creating expectations in commercial or proprietary matters are the important factors that add to the authority of a decision. Among the circumstances that diminish the authority of a decision are the presence of the strong dissenting judgements; the fact that majority do not agree in reasoning but only in their result; the failure of counsel to cite an inconsistent case in argument etc. The above circumstances are not relevant if the case is absolutely binding on the court before which it is cited and if it is incapable of being distinguished. But they are of great importance if the case is not binding, or if on the facts of the later case it is capable of being distinguished or extended at the pleasure of the court. A judge is not under any obligation to decide a case in a particular way when he is free. He then has to chose between notions of justice, convenience, public policy, morality, analogy and so on. He has to balance too opposing needs in the law; the need for stability and certainty and the need for changes. 5.METHODS OF STUDY A law student has two important aims. His primary and the most important aim is to become a lawyer and the secondary aim is to pass law examinations with credit. In order to achieve both the objects one has to read cases in the reports and also to read text books. Glanville Williams examines the relative importance of these two modes of study. The two aims can be pursued by the same means. One must study cases, either in the original law reports or in case books. It is through applying oneself to cases that one gets, to understand how legal problems present themselves and how legal argument is conducted. That understanding is important whether one’s object is to solve examination problems or to give sound opinions on points of legal practice. There is a difference between preparation for practice and preparation for examinations. What the practitioner needs is a grasp of general legal principles, a sound knowledge of practice and procedure, an ability to argue and general knowledge of-where to find the law he wants. But it is not essential for him to carry much law in the mind. To shine at examinations, on the other hand, one must not only know how to argue and be able to display a first hand knowledge of the sources; one must also be able to memorise a considerable number of rules and authorities. The introduction of problems into examination papers has done something to redress the balance between intelligence and memory but too much memorising is still required. Copies of statutes are now allowed to be used in some law examinations. It is indeed not to lower the standard of the examinations but to raise it, for it means that the examinations can be made more truly a test of intelligence and lawyerly ability. There is no reason why case books should not be permitted, or atleast lists of names of cases. In the United States, some teachers allow their students to take in to the examination hall materials that they have prepared themselves. READING TEXT BOOKS Repeated reading of text books is essential for a law student to understand and assimilate the legal materials. When a book on an unfamiliar subject is read for the first time it is rather heavy going and one seems not to remember much of it. The second reading is both interesting 11 ENGLISH - II and easier and more is remembered. It is better that a student reads the book a third fourth and fifth time. Learning by heart is best performed in short periods distributed over as long a time as possible. For example, it is better to devote one hour a day to revision than six hours at a stretch in once a week. Learning can be Increased by sleep or rest period. When every reading is followed by an attempt to recall the efficiency of learning and retention is enormously enhanced. Tests have shown that when time is distributed between reading and recall, fifty percent more is remembered than when the same time is spent merely in reading the passage over and over. READING CASE BOOKS The author says that some law teachers do not recommended the use of case books. In their view, the only way to proficiency is to read the cases in full. But , considering the amount of time actually available to a law student, the use of case books has two advantages. First, the case book saves him the trouble making his own notebook of cases. Secondly it does something to remove the immaterial facts thus helping in the search of facts that are legally material. However, it must be remembered that the use of case books by no means dispenses with the need for reading the original reports. For example, there may be latest cases, not covered by the case book, which the student may be keen to read in reports. LECTURE AND CLASSES The question whether the age - old lecture method of teaching should be continued any more, has been the subject of debate across the world. The author is of the opinion that it depends upon the particular lecture and the particular lecturers. The lecture method as a means of instruction has several merits. Lectures can quicken interests. The lecturers can give the basis and essentials of the subject and elucidate the broad principles. By varying his emphasis a lecturer can make “himself more easily understood than the toneless words of a book can. Moreover, a lecturer can bring textbooks up-to-date and in a small class he can solve the individual difficulties. However, average lectures are of not much use and it is waste of time to sit through such lectures and to make notes mechanically without thinking what they are about. Some teachers are blamed for telling too many valuable things in too short a time. DISCUSSION CLASS The discussion classes generally called a class supervision or tutorial is considerably more important and useful than an average lecture. The discussion which is centred on legal problem is more beneficial to the students. In the discussion classes the students must entirely participate by attempting to work out problems rather than remaining passive listeners. Smaller strength is ideal for discussion classes. The author advises the students to develop the habit of working a full morning and stresses that alcohol is totally inconsistent with study. Instead of using bound lecture note books, the author recommends loose-leaf system where the student needs to take with him only a single loose leaf note book. Notes taken in this form can be rearranged and expanded at pleasure. Finally, the author suggests that the law students need to have a grasp of history in the study not only of constitutional but of pure legal history. 6.THE INTERPRETATION OF STATUTES The interpretation of statutes is the primary function of the court. The legislature can only pass an enactment. The individual members of the legislature cannot be required to explain or interpret what has been enacted. Therefore the interpretation is entirely within the province of judiciary. In this respect, courts are to be guided by the well established canons of interpretation. 12 ENGLISH - II The object of the interpretation is to give effect to the intention of the legislature and in that process dictionary meaning the use of similar words in an earlier enactment on the subject, the definition section etc. may be considered. Interpretation in the light of policy “Fringe Meaning” When interpreting the statutes the courts often try to discover the intention of the legislature. In fact it is very hard to find out the intention exactly so as to know whether a particular situation comes within the words of a statute. Hence in many cases the intention of the legislature is a fiction. In case of doubt the court has to guess what meaning parliament would have picked on if it had thought of the point. The intention is not actual but hypothetical. For example, the general notion of “building” is clear, but a judge may not find it easy to decide whether a temporary wooden hut or a telephone kiosk or a wall or a tent is a “building”. In whatever way he decides the case, the judge is discharging a legislative function rather than interpretative one. Therefore it has to be approached with the help of the policy implicit in the Act or by reference to the convenience or social requirements or generally accepted principles of fairness. This kind of interpretation may be legally and socially sound. However the result, in some cases, may be surprising. Thus the word murder was construed as accident in the context of workmen’s compensation Act and the result of the decision was that the widow of the deceased workman was entitled to compensation from the employer; because the murder in question arose out of and in the course of employment. In preferring this wider meaning of the term accident the court looked to the general purpose of the Act. THE MISCHIEF RULE: Interpretation with reference to social policy does not always command universal assent. However the judges are in fairly safe ground if they apply the mischief rule otherwise known as the rule in Heydon’s case, a 16th century case which related to the construction of leases, life estates and statutes. The mischief rule is based on the principle that the interpretation of a statute should be so as to advance the remedy and suppress the mischief The courts must take in to consideration factors like the history of the statute, reasons for the enactment the mischief intended to be suppressed and the remedy proposed to be conferred. If the apparent meaning of a statute leads to an absurdity, then the courts must resort to a reasonable construction and see whether a logical result can be arrived at. This rule has been followed in a host of decisions especially in interpreting penal statutes. Thus, in Smith v. Hughes a provision in the Street Offences Act 1959 came up for interpretation: Under the said Act it is a crime for prostitutes to loiter or solicit in the street for the purpose of prostitution. Some prostitutes were charged for soliciting from balconies and tapping on windows. They claimed that they were not guilty as they were not in the street. The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover this mischief or harassment from prostitutes. THE LITERAL RULE: The rules of interpretation have no function when the words of a statute are clear enough and admit of no other construction. Every statute must be constructed in its primary and etymological sense. All rules of interpretation come in only when the wording of a statute is not clear and the intention of the legislature cannot be gathered without recourse to the well known cannons of interpretation. According to this rule, Courts should use the mischief rules when the statute is plain and unambiguous. They can use it if the statue is ambiguous but must not invent fancied ambiguities in order to do so. However, the literal rule cannot be used where the words are used in the widely differing contexts of human or social situations. Professor Zander gives 13 ENGLISH - II the example of parents asking a child minder to keep the children amused by teaching them a card game. In the parent’s absence the child minder teaches the children to play strip poker. Though strip poker is a card game it is not the sort of card game intended by the instructions given. One knows this not from anything the parents have said but from customary ideas as to proper behavior and upbringing of children. Nevertheless according to Lord Diplock it is improper to deviate from the statutory provision by interpreting words and phrases if the meaning of the statute is plain. The phrase in motion under the Factories act was interpreted to mean mechanical propulsion. Lord Diplock opines that the interpretation was uncalled for as the phrase was very plain. Hence the interpretation was the result of a fancied ambiguity. The chief merit of the literal rule lies in the definiteness and certainty of parliamentary enactments. If it is left to the judges to interpret and give meaning to words and phrases statutes will become more complex. People are entitled to follow statutes as they are, they should not have to speculate as to parliaments intention. Moreover if the courts intend to rewrite statutes it would encourage people who objected to the litigation to try their luck with the courts. There may be differences of opinion as to what is expedient, just and morals. But the parliaments opinions on those questions is paramount. However the hard truth is that parliament generally pays little attention to the working of the law. It is not merely that parliament fails to keep old law under continuous revision. It loses interest in its new creations as soon as they are on the statute book. THE GOLDEN RULE : INTERPRETATION TO AVOID ABSURDITY: The rule that a statute may be constructed to avoid absurdity is conveniently called the golden rule. The courts sometimes allow themselves to construe a statute in such a way as to produce a reasonable result, even though this involves deviating from the prima facie meaning of the words. The golden rule allows the court to prefer a sensible meaning to an absurd meaning, where both are linguistically possible. It does not matter that the absurd meaning is the more natural and obvious meaning of the words. This is definitely in contrast to Lord Diplock opinion that inexpediency, injustice or immorality of the proposed application of the statute cannot in itself be a reason for finding a powerful motivating force leading the court to detect such ambiguity. PRESUMPTIONS: In interpreting statutes, various presumptions may be applied. They are the background of legal principles against which the act is viewed and in the light of which parliament is assumed to have legislated without being expected to express them. The important presumptions are the rule that a statute is presumed not to be retrospective, the presumption against interference with vested rights, the presumption against taking of property without compensation and the presumption against interference with contract. The function of a Judge is also to do justice in accordance with certain settled principles of law in a free society and he is entitled to assume that parliament does not intend to subvert these principles* unless there is a clear statement that it does. The rules of natural justice, self defence, duress etc. are judge-made principles required by our ideas of justice grafted on the statute by Implication although there may be no words in the statute to suggest them. The common law provides a lot of principles which bold judges will make use of, in order to do complete justice. For example, the principle that a murderer cannot take under his victim’s will was established as early as 1775. Therefore it was easy for the judges to apply the rule in the case of Re Sigsworth that involved the question as to whether a son who murdered his mother was entitled to her estate as issue under the Intestates Estates Act. 14 ENGLISH - II  Casus Omissus (case of omission) is another principle of interpretation which can be applied where there is a genuine omission in a statue. Certain phrase in the Official Secret Act, 1920 was considered in Adler v. George. Section 3 of the Act prohibits persons “in the vicinity of” any prohibited place from impeding sentries. The defendant impeded a sentry when he was inside a prohibited place. The argument for the defence was that the defendant, being inside, was not in the vicinity of the place” which meant outside. The court rejected the argument holding that the statute was to be read as if it were “ in or in the vicinity of. This shows that statutes may be read not only against the background of notions of justice and settled legal principle but also against the background of notions of ordinary common sense. There is a long standing presumption that Acts of parliament are not intended to derogate from the requirements of international law. The modern movement for legislative recognition of human rights, based on various international conventions, is in fact a movement for the increased control of legislatures by the judiciary. Thus it is seen that enacted law requires proper interpretation by judges so that, a sensible result can be achieved in the interest of justice. Nevertheless much will depend on the legal knowledge and the integrity of the counsel and the court, as well as on the readiness of the court to take a liberal view. 7. MOOTS AND MOCK TRIALS Glanville Williams in “Moots and Mock Trials” underlines the significance of the moots and mock trials and outlines the procedure usually followed in arranging them for the students of law. The literal meaning of the term ‘moot’ is subject to debate. “To moot” means to put forward for discussion. Moots are legal problems in the form of the imaginary cases which are argued by two student counsels, a leader and the junior, on each side with a bench of three judges or perhaps only one representing the court of Appeal or sometimes the House of Lords. Participation in moots helps the law students in many ways. It gives them experience in the art of persuasion and putting a case succinctly and intelligibly. Mooting not only gives practice in court procedure but helps to develop the self confidence that every advocate should possess. ARRANGEMENT OF MOOTS The arrangement of moots is usually the responsibility of the students’ law society known as the Moot Society. A law teacher or a practising lawyer usually presides on the bench. Law students themselves also may preside on the bench. The moot should ideally have two separate points for arrangement, one each for each of the two sides. The opposing counsel must be notified of the main proposition and of all the authorities relied on by the counsel. The Master of Moots or other organizer should also be informed of the authorities to be cited, in order that he may arrange for such reports or case books which are available to be brought to the court room. Since the moot is attended by an audience it is important to confine the proceedings to a reasonable length of time between half an hour and 40 minutes. MOOT COURT PROCEDURE In the court hall the counsels for the appellants are seated on the left side of the judge and those for the respondents on the right side. The presiding judge calls upon the leading counsel for the appellant to argue the case first and then calls his junior and after that the two counsels for the respondent argue the case. The appellant is supposed to have a right of reply subject to 15 ENGLISH - II the availability of time. Alternatively, the speaking order can be leading counsel for the appellant; both counsels for the respondent, junior counsel for the appellant who has the last word. Both the counsels and the judge strictly follow the procedure and conduct of the court. Counsels rise to their feet when addressing or being addressed by the court. In the course of the proceedings, interruption should be avoided as far as possible. ‘Learned junior’; ‘learned friend’, ‘Learned judge’ etc are the phrases to be used to refer to the other counsel. ‘My Lordship’ and ‘Your Lordship’ are the polite ways of addressing a judge. The difference between ‘My Lord’ and ‘Your Lordship’ is that the former is used in vocative cases and the later is the mode of referring to the judge in the course of sentence (i.e) as a polite substitute for ‘You’. Female judges are addressed as ‘My Lady’ or ‘Your Ladyship’. Another important etiquette to be followed in the proceedings is that a counsel may submit and suggest as strongly as he likes and he may state law and fact, but he should not express his own belief or opinion. As an advocate one is paid to present the client’s case and not to offer a sincere opinion as a judge. PRESENTATION OF THE CASE Address to the court must be as brief as possible. Points must be enumerated and the part of the argument that is left to junior must be clearly stated. Once the court appears to be convinced on a particular point, argument on that point may be closed. The court may be appraised of all the important points without waste of time. Eye contact of the judge is very important in order to make sure that the argument is heard. Argument must be full of expression and reading must be avoided. Reading out the long passages from text and treatises must be avoided and authorities must be quoted with proper periods and emphasis. CITATION OF CASES Mooters are expected to produce authorities for the cases cited. The reports of cases or case books must be produced in the moot. While citing the cases, reference must be pronounced in full, not in abbreviated form. The facts of the case should be read in full unless the case is relied upon only for an obiter dictum. Citation of a long list of cases is a monotonous thing and therefore the author advises the mooters to limit it to six cases on each side. The object of a moot is to provide practice in developing an argument and citing of cases is only a means to this end. THE ROLE OF JUDGES All moot court judges are expected to interject the counsels by questions and objections. The objections need not represent the judge’s real opinion; he makes it in order to see how the student counsel responds. After counsels have concluded their argument the presiding judge may invite members of the audience to express their opinions upon the legal problem amicus curiae (friends of the court). The judge may then deliver the judgment and also declare which counsel or side performed best. MOCK TRIALS A mock trial differs from a moot in that it is a mock jury -trial, with jury and witnesses. ‘Jury’ means a group of people attending on a legal case and giving a verdict on the basis evidence given in court. It is not an argument on law. It may look like court proceedings with witnesses dressing themselves up as counsels in ropes. The audience may consist of non -lawyers who often come to be entertained. Since the trial is un rehearsed, it requires forensic ability on the part of the student counsel to take part in it. 16 ENGLISH - II  There are two ways in which the case may be conducted. It may have been enacted beforehand by the witness so that they testify as to what they have witnessed. The second method is that the organizers may simply have given to each witness a statement of his evidence which he is expected to remember. The former method is more realistic when it comes to cross examination. The actual trial is a valuable experience for budding advocates who take part in it as counsels. The trials may be conducted in law schools. The cases may be modeled upon an actual trial case. It is advisable to keep the number of witness down to five or six. The participants must have attended real trials in order to learn how things are done. The clerk of the court must know his job. THE GAME OF ALIBI The game of alibi, like moots and mock trials, is arranged by the members of the students’ law society. The gathering divides into groups of four, each group being composed of two prosecuting counsels and two defendants. It is assumed that the two defendants have committed some crime at a stated time and have set up an alibi. They go out of the room for not more than 10 minutes in order to prepare their story. Then they return for cross examination by the prosecution counsel. The counsel’s aim is to break down the alibi by asking some unexpected questions. After the cross examinations, the two counsels put their heads together and then one of them address the jury and submits that the alibi has been broken. The jury signify their verdict by a show of hands. The opinion of the majority is. taken. FALSE EVIDENCE False evidence is a game somewhat similar to alibi. Three masked defendants are questioned on their day to day lives by the counsels. One of these defendants has assumed a completely false name and occupation and it is jury’s-task to decide which. Each defendant must submit to counsel a week in advance a couple of hundred words summarizing his life and this enables counsels to prepare their questions. The witness is not in court during the interrogation of the defendant. The counsels try to shake the evidence and establish discrepancies between the defendant and his witness. The judge sums up briefly to the jury who consider and announces their verdict. The imposter then declares himself and it is interesting to see if the judicial process has succeeded in ascertaining the truth of the matter. THIRD DEGREE Third degree is yet another variant of moots and mock trials. One member of the society is selected as the defendant and he is given the outline of an alibi defence. His alibi may relate to a period between 2 and 5 pm on a day when he left for a town and joined his friend for a tea. The defendant must immediately fill in the details and amplify it under questioning. The object of the rest of the company, who questioned him for 15 minutes, is to establish a self contradiction. Leading questions may be asked. The significance of this game is that it can be played by two players only and it may help to bring out unexpected ability as an implacable interrogator. 17 ENGLISH - II  WORDS OFTEN CONFUSED 1. Affect : (to act upon or to pretend) The extreme cold affected his health. The culprit affected madness to escape punishment. Effect : (to bring about) Ashoka affected many reforms in the country. 2. Adverse : (hostile) The officer was not promoted because there was an adverse report against him. Averse : (harbouring dislike to) He is averse to violent methods. What cat is averse to fish? 3. Accelerate : (to increase the speed) He suddenly accelerated the car; it shot for ward and soon disappeared from view. Expedite : (to assist and hasten the progress of) All steps were taken to expedite the formation of the new State. 4. Application : (the process of applying : enforcement) The application of the tax measures will cause hardship Implication : (meaning implied but not explicitly stated) The implications of his statement are far-reaching. 5. Ancient : (very old) Some people harp on the ancient glory of Indian culture. Antique : (old-fashioned; after the manner of the ancients) In the museum we have some remarkable relics of antique sculpture. 6. Apprehend : (to grasp, to get a hold on the meaning of a thing). Comprehend : (to understand fully) I can apprehend the bare principles of the Theory of Relativity but I cannot comprehend the full implications of that theory. 7. Assent : (official concurrence or sanction) The bill, passed by the Parliament, has to obtain the royal assent (or the President’s assent) Ascent : (climbing up) The ascent of Everest by Tenzing and Hillary was a great achievement. 8. Amiable : (lovable) His amiable qualities endear him to every-body. Amicable : (friendly) We have arrived at an amicable settlement of the dispute. 9. Adapt : (make something suitable to or for a purpose) Success often depends on your ability to adapt yourself to changing circumstances. Adopt : (to take a person into a new relationship) The merchant who had no children of his own adopted Arvind as his heir. 10. Apposite : (relevant, suitable) He illustrated his argument with apposite quotations. Opposites : (contrary) The two cars were speeding in opposite directions. 11. Allusion : (reference) W.B. Yeats makes several allusions to Indian mythology in his poems. Illusion : (false notion) Don’t be under the illusion that any foreign power will fight your battles for you. 12. Abstract : (a brief summary) He gave an abstract of the whole novel in about 300 words. Extract : (a passage taken from a book, etc.) This is an extract from Milton’s Paradise Lost. 18 ENGLISH - II 13. Avert : (to turn away, ward off) We must make every effort to avert a Third World War. Invert : (to turn upside down) He inverted the bottle to show that there was not a drop left. 14. Attenuate : (to make thin) The bill was actually passed in an attenuated form because of the several amendments suggested by the members. Extenuate : (to diminish, lesson) It was a very vicious act and there is nothing but the criminal’s youth to extenuate it. 15. Accept : (to receive with favour) I accepted their invitation. Except : (to exclude, leave out) He was expected from the general pardon. 16. Aught : (anything) For aught we know he may be innocent. Ought : (should) we ought to support the United Nations. 17. Advise : (Verb) I advised him to study law. Advice : (Noun) His advice was most helpful. 18. Affection : (love) He has great affection for his younger brother. Affectation : (pretence or artificially) I have affectation in speech or manner. 19. Artful : (cunning) He is a clever, artful rogue. Artificial : (not natural) There are artificial flowers. 20. Artist : (one who practises the fine arts, especially painting) Leonardo do Vinci was a highly imaginative artist. Artisan : (one who follows one of the useful crafts) Government has a scheme to help the artisans - especially the weavers and ivory workers - to find a market for their products. 21. Accede : (agree) The Principal acceded to the request of the students and granted them a holiday. Exceed : (be greater than) Balance your budget and see that your expenditure does not exceed your income. 22. Beside : (by the side of) The caste stood beside the lake. Besides : (in addition to) Besides my two sons my nephews too have joined the army. 23. Beneficial : (useful) Regular exercise is beneficial to health. Beneficent : (kind, doing good) Ashoka was a beneficent ruler. 24. Bridal : (of bride or wedding) She looked lovely in her bridal dress. Bridle : (control) you must learn to bridle your tongue. 25. Canon : (a rule or principle) We must not violate the canons of law. Cannon : (a heavy gun) Some of our cannon (the plural has the same form as the singular) have arrange of over twenty miles. 26. Canvas : This tent is made of canvas. Canvass : (to request votes) The candidates have been vigorously canvassing the support of the voters. 19 ENGLISH - II 27. Council : (an assembly of leaders, advisers, etc.) Under President’s rule the Governor carries on the administration with the help of a council of advisers. Counsel : (advice) Bacon’s aim in writing his essays was to impart moral and social counsel to his readers. 28. Corporal : (physical) The hoarders and black marketers should be given corporal punishment. Corporate : (of or belonging to a body politic) We should try to enrich the corporate life of the community by co-operating with others for the welfare of society. 29. Continual : (frequent) The speaker was continually interrupted by some back- benchers. Continuous : (unceasing) There was continuous rain for two days and all the rivers in the area were flooded. 30. Childlike : (like a child) He has a childlike simplicity about him. Childish : (immature) His conduct is extremely childish. 31. Congenial : (suitable, agreeable) In congenial surroundings a child’s mind develops very well. Congenital : (from birth) His blindness is congenital. 32. Capture : (seize) He was captured by his enemies. Captivate : (fascinate) He was captured by his enemies. 33. Ceremonious : (observing formalities) The visitor was welcomed ceremoniously and introduced to the Governor. Ceremonial : (connected with a ceremony) The banqueting hall is used only only on ceremonial occasions. 34. Collision : (violent contact) Yesterday there was a collision between a bus and a lorry. Collusion : (secret understanding in order to deceive somebody) The Engineer, in collusion with the contractor, cheated the Government of a lot of money. 35. Compliment : (expression of regard) Please, convey my compliments to your brother. Complement : (full number required) The ship has its full complement of sailors. (That which completes) Find out the complement of the verb in this sentence. 36. Confident : (sure) I am confident of success this time. Confidential : (trusted, secret) I shall tell you something, but keep it confidential. He is the Manager’s confidential clerk. 37. Comprehensive : (exhaustive) This book gives a comprehensive account of the new taxation laws. Comprehensive : (understandable) You must present your ideas in a lucid and comprehensible manner. 38. Confirm : (ratify) The decisions of the Board were later confirmed by the Council. Confirm : (comply with) This practice does not Conform to the rules laid down by the Committee. 39. Contagious : (spreading by contact) Leprosy is a contagious disease. Contiguous : (adjoining, bordering) China has claimed certain Russian territories contiguous to her borders. 40. Dependent : (Adjective) He is dependent upon his uncle for his educational expenses. 20 ENGLISH - II  Dependant : (Noun) Besides his children he has several dependants to take care of. 41. Destiny : (fate ) It is character that decides our destiny - not external circumstances. Destination : (goal) After walking through the jungle for three days, we reached our destination - a Santal village. 42. Dual : (double) He plays a dual role in the film. Duel : (a combat between two persons) Fighting a duel with one’s rival for the love of a lady was very common in France in the eighteenth century. 43. Disease : (illness) Smallpox is a terrible disease. Decease : (death) After his father’s decease, Pratap sold the house and went abroad. 44. Distinct : (separate) These two words are quite distinct, though they sound alike. Distinctive : (characteristic) what is distinctive of the Gurkha in his utter fearlessness. 45. Disposal : (sale, getting rid of) These shop-soiled articles are for quick disposal at low prices. Disposition : (arrangement) The disposition of troops on the border is a military secret. 46. Eligible : (qualified) You are not eligible for the post. Illegible : (unreadable) His hand-writing is illegible. 47. Elusive : (evading notice) He is a rather elusive person. Illusive : (deceptive) The hope of striking oil in the new well proved illusive. 48. Emigrate : (to leave one’s country with a view to settling in a foreign country) Several Indians have emigrated to Australia in the last few years. Immigrate : (to come into a country to settle there) Britain is trying to check the immigration of coloured people into that country. 49. Eminent : (illustrious) A.K. Roy is the most eminent lawyer in Calcutta. Imminent : (about to happen) Another confrontation between the Jews and the Arabs is imminent. 50. Estimate : (calculation) Before starting any work one must prepare an estimate of the expenditure involved. Estimation : (opinion) In my estimation, the Chinese are not likely to precipitate a war in the near future. Esteem : (respect) I hold Nehru in high esteem. 51. Facilitate : (make easy) Audio-visual aids will facilitate the teaching of science subjects in particular. Felicitate : (congratulate) We held a meeting to felicitate Niranjan on his getting the Padma Bhushan. 52. Fain : (gladly) I would fain oblige you in this matter but there are insuperable difficulties in doing so. Feign : (pretend) He feigned madness to escape punishment. 53. Flagrant : (glaring, scandalous) It was a flagrant violation of the terms of the agreement. Fragrant : (sweet-smelling) The air was fragrant with the odour of a thousand flowers. 21 ENGLISH - II 54. Graceful : (full of grace) She was charming and graceful. Gracious : (full of kindness) The princess was very gracious, and readily agreed to preside over the Women’s Conference. 55. Imaginary : (not real) He tends to worry over imaginary fears. Imaginative : (gifted with imagination) Wordsworth was a very imaginative poet. 56. Industrial : (pertaining to industry) India’s industrial development in recent years has been remarkable. Industrious : (hard-working) Industrious students should be encouraged and rewarded. 57. Ingenuous : (frank, open) His ingenuous nature has made him popular. Ingenious : (clever) He has invented an ingenious device for making sugar out of coal. 58. Judicial : (legal) He is working in the Judicial Department. Judicious : (prudent) He made a judicious selection of light essays as well as thought- provoking ones to be included in the book. 59. Junction : (meeting-place) We stopped at the junction to make enquiries. Juncture : (grave situation) At this juncture I am unable to give you any such guarantee as you ask for. 60. Luxurious : (given to luxury) He is living a luxurious life in the city, neglecting his old parents in the village. Luxuriant : (rich in growth) The growth of paddy was luxuriant after the application of fertilizers. 61. Momentary : (lasting for a moment) I experienced a momentary pang as I heard the sad news. Momentous : (very important) In 1942 the Congress Working Committee took the momentous decision that a Quit India movement should be started. 62. Masterful : (imperious) He was very masterful and would not allow any argument or protest. Masterly : (skilful) He gave a masterly analysis of the situation facing the country. 63. Metal : (substance) like iron, gold, etc.) Iron is perhaps the most useful of metals. Mettle : (quality, courage) He proved his mettle by facing the situation with supreme tact and confidence. 64. Official : (pertaining to an office) The minister paid an official visit to Delhi to take park in a conference. Officious : (offering service that is not wanted) When I stayed in the Guest House I found the caretaker too officious and meddlesome. 65. Popular : (liked by the people) Nehru was a very popular leader. Populous : (thickly inhabited) Calcutta is a very populous city. 66. Principal : (chief) Cotton is the principal export from Bombay. Dr.Mukherji is the Principal of the college. Principle : (general law as guide to action) We must follow certain moral principles. (Fundamental truth) Everyone should know the principles of economics. 67. Reverend : (worthy of reverence) He was a reverend old gentleman with a tall stature and a flowering beard. 22 ENGLISH - II  Reverent : (feeling reverence) We entered the Ashram in a very reverent mood. 68. Stationary : (motionless) In the olden days people believed that the earth was stationary. Stationery : (writing materials) I want to buy some good stationery for the office. 69. Sanguine : (hopeful) I am not very sanguine about getting their support in this matter. Sanguinary : (bloody) It was a sanguinary fight and many of our men were killed. 70. Verbal : (relating to words) This is only a verbal distinction without any real difference in meaning. Verbose : (wordy, prolix) His style of writing is too verbose. 71. Wave : (brandish) The robber waved a pistol and threatened the passengers. Waive : (relinquish) I shall not waive my right to this house, unless you promise to allot a bigger one to me later. LEGAL TERMS 1. Accomplice : An accomplice is one who takes part with or assists an offender, in the commission of an offence. He may be an aider, an abettor or an accessory. Generally, he is an accused turning or assenting on evidence, when he confesses his guilt and offers himself as a witness against his co-accused he is called approver. A guilty associate or a partner in a crime who has a conscious hand in the offence is an accomplice. 2. Act of God : An event beyond the control of human beings, operating as a supervening or overwhelming force is often referred to an ‘Act of God’. If an event could not be reasonably foreseen by human foresight or skill, it is said to be an ‘Act of God’. If any wrong is the necessary result of an ‘Act of God’, then the wrong-doer is excused for such wrong. Act of God is a defence in commission of torts. 3. Approver : An approver is an accomplice in crime, who had undertaken to make full disclosure of the commission of crime against his companions in the crime committed jointly by them, on a promise of a pardon being granted to him. 4. Ad-Idem : Identity of minds. If two or more persons agree upon the same thing in the same sense, they are at ‘ad idem’. If they give their consent after such (ad) idem, they are said to be willing parties to the agreement. Such meeting of the mind of two or more persons is called, ‘consensus ad-idem’ and it is an essential feature of a valid contract. In between the contracting parties, there must be mutuality of minds. This mutuality is otherwise known ‘ad-idem’. 5. Adjudication : The passing of a judgement, sentence or decree is called ‘adjudication’. If any matter is finally decided by a Court of Law, the matter is said to be adjudicated. Adjudication order is the other kind of an order of a Court of insolvency declaring a person an insolvent. This term, thus, has this particular relevance in declaring a person an insolvent. 6. Adjournment : A postponement of a case from one date to another date is known as adjournment of the case. If a case is postponed from one date to another, or if a sale to be held by the court is postponed to a later date, or if any proceeding of the court is postponed to later date, that case, sale or proceeding is said to have been ‘adjourned’. 7. Admission : In legal parlance, this term has a definite connotation, which is somewhat different from its ordinary meaning with which it is known in the ordinary parlance. Admission may be either a direct admission or an indirect admission. If a fact stated by one party is not 23 ENGLISH - II specifically denied by the other party, the other party is said to have indirectly admitted the said fact. When that fact is put to the other party, and the other party says, ‘yes’, the fact is said to be directly admitted by the other party. An admitted fact need not be proved, Self-harming statements in civil cases are called, ‘admissions’ and those in criminal cases, are called, ‘confessions’. 8. Advalorem : It means, ‘according to value’. This term is mostly used in calculating the court fees payable on any suit for recovery of damages in money, suit for recovery of moneys, suit for recovery of debts , suit for recovery of possession of movable or immovable properties etc. When the court-fees are to be calculated in proportion to the value of the property or other things involved in the suit, then the court fees is called ‘ad valorem’. 9. Affidavit : It is a written statement affirmed by the person making it in presence of another person having authority to attest the affirmation of the statement by the person making it. The person making such statement is called, ‘deponent’, and the act of affirming is called, ‘deposition’. In such statements, only those facts of which the deponent has personal knowledge must be stated. 10. Amicus Curiae : An ‘amicus curiae’ is otherwise known as, ‘friend of the court’. Whenever the court has any doubt in regards to any legal point involved in a particular case before the court, any member of the bar (an Advocate) may be requested by the court to assist the court in clearing such a doubt. Such a member of the bar who is called upon by the court to assist the court is called, ‘amicus curiae’. Such a member of the bar must be one who is not engaged by either of the parties to the case. 11. Amendment : An act of improving, correcting or altering is called amendment. In the civil courts, this term is used in reference to pleadings, and sometimes, in reference to decrees passed by the court. If any fact stated either by the plaintiff or by the defendant to a suit, is desired to be altered, or corrected, or modified, or deleted, or substituted, subsequently, such an act of alteration etc., is called, ‘amendment’. In certain circumstances, decree passed by the court also may be so, ‘amended’. 12. Bonafide : This term simply means, ‘good faith’. There is an absence of any intention to cheat or deceive. If an act is done honestly, faithfully and genuinely without having any intention to deceive or defraud or cheat the other person to whom the act is done, then the act is said to have been performed, bonafide - in good faith. The element of innocence in commission of the act constitutes bonafide. 13. Breach of Contract : If a party to a contract undertakes to perform an obligation, and he does not perform that obligation, he is said to have ‘breached’ the contract. Breach of contract contemplates an act of omission. Non-performance of an obligation arising out of a contract is called, ‘breach of contract’. 14. Capital Punishment : It means, ‘penalty of death’. The object of punishment in criminal law is to make the offender suffer either in person or in purse or in both, so that one may not commit the same in future. The object is not only this. It is also to make others understand that they will be similarly dealt with in case they commit such offences. Punishment is not compensation, but it is penalty. 15. Coercion : The simple meaning of this term is, ‘threatening’. In the Law of Contract, it means something more. Only when both the parties to an agreement, give their consent freely without any fear, a contract comes into existence. If one party gives this consent, because the other party has threatened him, then such a consent is not a free consent. In order to compel 24 ENGLISH - II an ‘unwilling person’ to become a ‘willing party’ to an agreement, the other person commits any act which if forbidden under the Indian Penal Code, such an act is called, ‘coercion’. Or, without committing such act if the other persons threaten to commit such act, then also, such threatening is called ‘coercion’. Instead of commiting any such act, if the other person detains any property belonging to the ‘unwilling person’ in order to compel him to give his consent for the agreement, or he threatens to detain the property for the said purpose of compelling him to give his consent to the said agreement, the act of detaining or threatening to detain is also called, ‘coercion’. 16. Consent : This term means the expression of willingness of a person to enter into an agreement with other person. Two or more person are said to consent when they agree upon the same thing in the same sense. This element of consent is one of the essential elements of a contract. When there is no consent, there is no contract. For an agreement, consent is most essential, and for the agreement to become a contract, this consent may be a ‘free consent’. 17. Counter-Claim : An independent claim made against the claimant is called ‘counter¬claim’. In a suit, the plaintiff makes a claim against the defendant. If the defendant makes another claim against the plaintiff, this claim of the defendant is known as counter-claim. Countering the claim of the plaintiff is only an act of defence by the defendant. It does not impose any liability on the plaintiff. But a counter-claim is one which impose a liability on the plaintiff. The claim of the plaintiff and the counter-claim of the defendant are two different and independent claims. 18. Compromise : As adjustment between the parties to a dispute ending in a settlement is known as compromise. A compromise means a mutual adjustment. A compromise contemplates a different relief from the relief sought for by the plaintiff in a case. If the relief sought for by the plaintiff is admitted by the defendant, then such an act is not called, ‘compromise’, it is called submission. 19. Cur Adv-Vult : It is an abbreviation of ‘Curia Advisari Vult’. This term means, ‘the court desires to consider’. This term is usualy denoted by the abbreviation, ‘C.A.V.’. On any point of fact, the Court has taken time to consider the point for giving its decision, this fact is denoted by the letters, C.A.V. In such cases, in order to indicate that the Court has not come to the decision at once, simply after hearing the arguments, but after taking sufficient time to consider the point of fact, the Judge places these letters at the end of arguments, in his judgement. 20. Damages : Damages is the compensation awarded by the Court to compensate the loss suffered by the aggrieved person. Or in other words, damages is the compensation to compensate the damage caused to the innocent party. Damage is what is caused, damages is what is claimed. If A has suffered loss due to the act of B, the loss is called, ‘damage’. If A then claims certain sum of money to compensate that ‘loss’, his claim is called, ‘damages’. 21. Defamation : ‘Defamation’ is the injury caused to a person’s fame and dignity. Libel and slander are the particular forms of it. Defamation may be caused either by expression of words, or by indication of signs, or by visible representations (gestures). Such an act must have been intended to harm the reputation of the person to whom it is directed or against whom it is levelled. It is not enough if the concerned person alone knows about it. The defamation or defamatory matter must be published, or at least communicated to person other than the one defamed. 22. Defence : Defence is the specific denial of the plaintiff’s allegations by the defendant. Defence is that thing which a man does in order to defend himself from the legal consequences of the proceedings instituted against him. It starts with the act of denial, and ends with the act of proof. A mere denial without its proof is no defence. 25 ENGLISH - II  23. De-facto : This term means. ‘in fact’. ‘De facto’ implies a factual position without legal sanction used with reference to any person or a thing in existence. If a person is a guardian of a minor without there being any legal sanction for occupying such a position, that person is said to be ‘de facto guardian’ of the minor. If a minor is in the actual care and custody of another person who is neither natural guardian nor the appointed guardian of the said minor then that person is called, ‘de facto guardian’. 24. De Jure : This term is different from to ‘de facto’. It implies a legal positin with a legal sanction. For a minor who has no parents nor any person to take care and custody of him, if the court appoints a person of its choice as the minor’s guardian, such a guardian is known as, ‘de jure guardian’. This term means “in law”. 25. Deposit : An act of receiving, keeping, preserving a thing beloging to another with his consent is known as deposit. The person in whose custody things are deposited does not become the owner of the things deposited. He has no obligation to return the things on the fulfilment of the stipulated condition. Though the thing comes to the possession of the other person, the person depositing the thing does not cease to be the owner of the thing. 26. Detinue : It implies the legal action for the recovery of chattels. If a person is detaining the things belonging to other without the latter’s consent, the other person is entitled to an action in detinue. If a person is detaining the money of the other then the other is entitltled to an action indebt. Debt is an action for the recovery of money, and detinue is for chattels. 27. Distress : It is another kind of legal action. If a person fails to do his obligation, the affected person can take the moveable property of the defaulting person and keep it with him in order to compel the wrong-doer to perform the obligation. Until the obligation is performed the things can be detained by the affected person. Such a right is known as right of distress. 28. Earnest - Money : It is the sum of money deposited by one party to a contract, with the other party to the said contract for due performance of the first party’s obligation. He guarantees his performance which is secured by this earnest-money. In case the performance is not done, the party depositing this earnest-money is losing that money. Earnest money is paid as token of good faith acknowledging the binding character of the bargain on penalty of forfeiture. 29. Equity : Equity is the body of rules considered as governing all on account of their excellence and universality. The rules are not rigid. In its primary sense, equity is fairness of the rule of conduct which ought to be followed by all. Law of Equity is not a strict law. It concerns with the positive laws not according to their strict letter but to other reasonable spirit. 30. Estoppel : It means that in certain circumstances a party will not be allowed to show the truth in his own favour, when he has, by some act or deed or negligence, led the other party to believe that something else is the truth. Estoppel is a rule of civil actions. It has no application to criminal proceedings. When a person makes a declaration, or does an act with an intention to make the other person to believe a thing to be true, and that other believing it to be true has acted upon that belief, the first person cannot be allowed to deny the truth of that thing. 31. Evidence : Facts stated by a person can be proved only by his evidence. A fact stated may be proved either by oral evidence or by documents. Statements made by witnesses in relation to matters of fact under enquiry are called oral evidence. Documents produced in relation to matter of fact under inquiry are called documentary evidence. If a fact is stated in the plaint or written statement, it is called ‘pleading’. If the same fact is spoken by the plaintiff of the defendant as the case may be, in the court in the witness-box, it is called evidence. 26 ENGLISH - II  32. Execution : It is a process of court by which a decree passed by a trial court or appellate court is ordered to be enforced in a mode prescribed by the said order. When a court passes a decree directing the defendant in the suit to carry out certain obligation, the defendant has a legal liability to cary out the obligation. If he fails, then the court has the power to enforce the said decree in the matter permitted under the Civil Procedure Code. This term is also applicable to documents. A document is said to be executed if the authority of the document duly puts in signature subscribing to the contents of the document. 33. Ex-Parte : The expression does carry with it the connotation that a Court has proceeded with a case in the absence of the other party to the case. This expression is used to signify something done or said by one person not in the presence of his opponent. If a court passes any decree or order for dismissal, in the absence of one of the parties to the case, in favour of the either party present in the court, the decree or the order is said to be ex-parte. 34. Fraud : This term connotes actual dishonesty. Any act of suppression of facts, of suggestion of false thing, done with an intention to deceive the other party, is called, ‘fraud’. When fraud is committed, the aggrieved party has a right to proceed, against the fraudulent party for damages. In simple terms, this fraud may be described as ‘procuring of advantage to one self by causing a person with whom one deals to act upon a false belief’. 35. Habeas Corpus : Literally it means, ‘have the body’. When any person is detained by a Government servant, such as a police officer, without reasonable cause or without there being an order of a court for such detention, such detained person may be ordered to be produced before the court. Such an order is known as Writ of Habeas Corpus. The writ is one of the safe¬guards of personal liberty, which may be taken away by public restraint. 36. Hearsay : This term is used in evidence, Hearsay evidence means evidence given by a witness on matters heard by him from someone else. Sometimes, the term hearsay means whatever a person is heard to say; and sometimes it means whatever a person declares on information given by someone else. It is otherwise called second-hand evidence. Usually such hearsay evidence is not admissible in courts. 37. Homicide : Homicide literally means killing of a human being. If a human being is killed by another human being, it is called, ‘murder’. Homicide may be either (i) lawful, or (ii) unlawful. AGain, unlawful homicide is of two kinds, (a) Murder & (b) Culpable Homicide not amounting to murder. An act of killing done with the intention to cause the death is called culpable nomicide. 38. Informa Pauperis : It is a privilege accorded to an indigent person (also) called ‘pauper’) who is unable to pay the required court-fees to institute a suit to enforce his civil right. A person who has no means to pay court-fees to institute a suit, may be allowed by the Court to institute the suit without paying the required court-fees, provided he is able to convince the court that he has no means to pay the required court-fees. If he institutes the suit without paying court-fees, he is said to have filed the suit ‘informa pauperis’. 39. In Camera : The Judge’s private room is usually called, ‘Camera’. Sometimes, cases of such nature where a little amount of privacy is thought fit by the Court, the court may permit to conduct such cases in his private room, or the Judge may direct all persons except the witnesses, parties to the suit and the counsel; who are to examine those witnesses, to leave the court hall and in such a secluded court-hall, the cases may be conducted. Such proceedings are called, ‘In camera proceedings’. 27 ENGLISH - II  40. In Limine : This term means, ‘ at the outset’. If any case deserves to be dismissed without calling for any evidence, on the fact of it appearing to be bad case, then the dismissal of such a suit is said to have been dismissed, “in limine”. 41. Injunction : If is an order of a court restraining some person or persons from doing certain things which are detrimental to the interests of another or others. If the court restrains a person from doing any act, it is a preventive injunction; if the court directs a person to do a thing, it is mandatory injunction; and such an order of injunction may be either (i) temporary, or (ii) permanent. 42. Insolvent : A debtor (whose debt is exceeding Rs. 500/-) is said to be ‘insolvent’ when he cannot pay his debts as they become due and payable, out of his own moneys. This state of that person is called, ‘insolvency’. Any person who is proved to have done an act of insolvency may be declared as ‘insolvent’ by the court. Insolvency is the term denoting the state of one whose assets are insufficient to pay his liabilities. 43. Insurance : It is a contract between the ‘insured’ and the ‘insurer’. By such a contract, the ‘insurer’ undertakes to pay a certain sum of money to the ‘insured’ in case an uncertain future event does happen or does not happen. In a life insurance policy the insurance company undertakes to pay a certain sum of money in case the ‘insured’ dies (though death is not uncertain, the time of one’s death is uncertain). 44. Issue : The point or points in question arising out of pleadings which one party affirms and the other denies, is known as an, ‘issue’. An ‘issue’ arises when a material proposition of fact is affirmed by one party and denied by the other. An issue may be of fact or of law. ‘Facts in issue’ mean the matters which are in dispute and which have to be decided by the court. 45. Judgement : The decision of a court pronounced in a legal proceeding is called ‘judgement’. It contains, the facts of the cases of both the sides, the evidence adduced by both the sides, the arguments put forward by the counsel for both the sides, the discussion of these things by the judge, his reasonings for arriving to his conclusion, and lastly the conclusion of the judge. A judgement binds both the parties to the suit. 46. Jurisdiction : This term refers to the authority of a court to decide a particular matter. It also means the competency of a court to entertain an action. It also refers to the territorial limit or pecuniary limit of a court in entertaining various civil and criminal matters. 47. Liability : The word, ‘liability’ has a wide connotation. It means legal responsibility or obligation to do a thing. It is a state of being bound or obliged in law or justice. In civil law the term, ‘liability’ indicates the obligation to do, pay or make good something. In criminal law it means and covers every punishment to which a man subjects himself by violating the law of the land. 48. Licence : It is a permission given by one person to another to do in or upon the immovable property which would, but for such permission, be unlawful. A licence is strictly personal. It cannot be transferred by the licensee (the person to whom licence has been granted). But a licence to attend a place of public entertainment can be transferred unless it is specifically prohibited. 49. Magna Carta : It refers to a charter originally granted by King John and afterwards re-enacted by the British Parliament. “It remains as a part of the Constitution of Great Britain”. Strictly speaking, it is not a legal term, but a legal document or charter. It now finds a place in the Statute Books of Great Britain. It means “ the Great Charter” 28 ENGLISH - II  50. Maintenance : Maintenance is a provision for food, clothing and residence and other necessaries given to near relations, such as children, wife, legitimate and illegitimate, and other dependants. Minor sons, unmarried daughters, aged parents are to be maintained. An earning son or an earning daughter has to maintain his or her aged parents in case they are not able to maintain themselves. 51. Mala Fide : ‘Bona’ means good, and ‘mala’ means bad. Bona fide means, good faith, and mala fide means bad faith. Mala fide and malice are synonymous forms. The term, ‘mala fide’ implies breach of faith or wilful failure to respond to one’s known obligation or duty. An act done without good intention is said to have been done ‘mala fide’. 52. Minor : Minor is a person who has not completed the age of eighteen years. Where a minor is a word under an apppointed guardian, his minority terminates at the age of his twentyfirst year. Under law, a minor has no capacity to enter in to an agreement. If he is a party to an agreement, that agreement is void. Since law wants to protect minors because the maturity of mind to decide what is good and what is bad for them. 53. Mortgage : A ‘mortgage’ is a transfer of an interest in specific immoveable property for securing the repayment of money borrowed. Where a debt is raised on the security of an immoveable property, the transaction is known as, ‘mortgage’. The person who borrows is called, ‘mortgagor’ and the person who pays money is called, ‘mortgagee’. 54. Murder : Murder is merely a particular form of culpable homicide. Every murder is a culpable homicide, but every culpable homicide is not a murder. In murder, death of the victim is caused by an unlawful act done with an intention to cause death. The victim must be a human being. If the victim is an animal, it is not a murder. 55. Natural Justice : It is opposite to legal justice. In rendering legal justice strict legal rules are observed. In natural justice the conscience is invoked and not legal principles. Rules of natural justice are not codified, but they are principles ingrained into the conscience of men. Natural justice is the administration of justice is a common sense or liberal way. It flows from natural ideals and ends in human values. 56. Necessaries : Necessary means what is indispensable, needful or essential. Necessaries is a relative term. What is necessary to one person may not be necessary to another person. A car is a necessary for a medical doctor, but is a luxury for a ministerial servant. The things which are needful for the very survival of a person are called necessaries. 57. Negligence : Negligence is the absence of such care, skill and deligence as it was the duty of the person to bring to the performance of the work which he is said not to have performed. Where the diligence is required, and that amount of diligence has not been exercised. It is negligence. The omission to do an act which ought to be done, the commission of an act which ought not to be done, is negligence. 58. Negotiable Instrument : A negotiable instrument creates certain rights in the person who is in possession of the instru