JI & GL Final Exam 2021 (PDF)

STUDY MATERIAL EXECUTIVE PROGRAMME JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS MODULE 1 PAPER 1 i  © THE INSTITUTE OF COMPANY SECRETARIES OF INDIA TIMING OF HEADQUARTERS...

STUDY MATERIAL EXECUTIVE PROGRAMME JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS MODULE 1 PAPER 1 i  © THE INSTITUTE OF COMPANY SECRETARIES OF INDIA TIMING OF HEADQUARTERS Monday to Friday Office Timings – 9.00 A.M. to 5.30 P.M. Public Dealing Timings Without financial transactions – 9.30 A.M. to 5.00 P.M. With financial transactions – 9.30 A.M. to 4.00 P.M. Phones 011-45341000 Fax 011-24626727 Website www.icsi.edu E-mail [email protected] Laser Typesetting by MP Printers, Phase-II, Noida, and Printed at MP Printers, Noida 201305, October, 2021 ii  EXECUTIVE PROGRAMME JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS This paper consists of three components, namely Jurisprudence, Interpretation and General Laws. Jurisprudence is the study of the science of law. The study of law in jurisprudence is not about any particular statute or a rule but of law in general, its concepts, its principles and the philosophies underpinning it. The primary object of the interpretation is to discover the true intention of the Legislature. The necessity of interpretation arises where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute. The General Laws is an important pre-requisite for professional course like Company Secretary. Constitutional Law that deals with powers, functions and responsibilities of various organs of the State; Administrative law deals with day to day governance mechanism and Civil and Criminal Procedure Code, Right to Information Act, 2005 etc., spreads into approximately every phase of modern life. Fundamental objective of this Study Material enable the students to understand and acquire working knowledge of Jurisprudence, Interpretation and General Laws. After studying this study material the student will be able to analyse principles underlying the legal postulates and propositions, and connection between theory of law and practice. This study material has been published to aid the students in preparing for the Jurisprudence, Interpretation and General Laws paper of the CS Executive Programme. It is part of the educational kit and takes the students step by step through each phase of preparation emphasizing key concepts, principles, pointers and procedures. Company Secretaryship being a professional course, the examination standards are set very high, with focus on knowledge of concepts, their application, procedures and case laws, for which sole reliance on the contents of this study material may not be enough. This study material may, therefore, be regarded as the basic material and must be read alongwith the Bare Acts, Rules, Regulations, Case Law. The subject of Jurisprudence, Interpretation and General Laws is inherently fundamental to evolution and refinement of legislations, rules and regulations. It, therefore becomes necessary for every student to constantly update with legislative changes made as well as judicial pronouncements rendered from time to time by referring to the Institute’s monthly journal ‘Chartered Secretary’ and e-bulletin ‘Student Company Secretary’ as well as other law/professional journals and reference books. The Legislative changes made upto July, 2021, have been incorporated in the study material. Besides, as per the Company Secretaries Regulations, 1982, students are expected to be conversant with the amendments to the laws made upto six months preceding the date of examination. In the event of any doubt, students may write to the Directorate of Academics of the Institute for clarification at [email protected]. Although due care has been taken in publishing this study material, the possibility of errors, omissions and/or discrepancies cannot be ruled out. This publication is released with an understanding that the Institute shall not be responsible for any errors, omissions and/or discrepancies or any action taken in that behalf. Should there be any discrepancy, error or omission noted in the study material, the Institute shall be obliged if the same is brought to its notice for issue of corrigendum in the e-bulletin ‘Student Company Secretary’. iii  EXECUTIVE PROGRAMME Module 1 Paper 1 JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS (Max Marks 100) SYLLABUS Objectives To provide understanding and working knowledge of sources of law, Constitution, legislative environment, interpretation of statutes and general laws. Detailed Contents 1. Sources of Law: Meaning of Law and its Significance; Relevance of Law to Civil Society; Jurisprudence & Legal Theory; Schools of Law propounded by Austin, Dean Roscoe Pound, Salmond, Kelsen and Bentham; Statutes, Subordinate Legislation, Custom, Common Law, Precedent, Stare decisis. 2. Constitution of India: Broad Framework of the Constitution of India; Fundamental Rights, Directive Principles of State Policy and Fundamental Duties; Legislative framework and Powers of Union and States; Judicial framework; Executive/Administrative framework; Legislative Process; Money Bill; Finance Bill and Other Bills; Parliamentary Standing Committees and their Role; Writ Jurisdiction of High Courts and the Supreme Court; Different types of writs. 3. Interpretation of Statutes: Need for interpretation of a statute; Principles of Interpretation; Aids to Interpretation; Legal Terminologies; Reading a Bare Act & Citation of Cases. 4. General Clauses Act, 1897: Key Definitions; General Rule of Construction; Retrospective Amendments; Powers and Functions; Power as to Orders, Rules etc., made under Enactments. 5. Administrative Laws: Conceptual Analysis; Source and Need of Administrative Law; Principle of Natural Justice; Administrative Discretion; Judicial Review & Other Remedies; Liability of Government, Public Corporation. 6. Law of Torts: General conditions of Liability for a Tort; Strict and Absolute Liability; Vicarious Liability; Torts or wrongs to personal safety and freedom; Liability of a Corporate Entity/Company in Torts; Remedies in Torts. 7. Limitation Act, 1963: Computation of the Period of Limitation; Bar of Limitation; Effect of acknowledgment; Acquisition of ownership by Possession; Classification of Period of Limitation. 8. Civil Procedure Code, 1908: Structure and Jurisdiction of Civil Courts; Basic Understanding of Certain Terms - Order, Judgment and Decree, Stay of Suits, Cause of Action, Res Judicata, Summary Proceedings, Appeals, Reference, Review and Revision; Powers of Civil Court and their exercise by Tribunals; Institution of Suit; Summary Procedure. 9. Indian Penal Code, 1860: Introduction; Offences against Property-Criminal Misappropriation of Property, Criminal Breach of Trust, Cheating, Fraudulent Deeds and Dispositions of Property; Offences relating to Documents and Property Marks- Forgery; Defamation; Abetment and Criminal Conspiracy. iv 10. Criminal Procedure Code, 1973: Classes of Criminal Courts; Power of Courts; Arrest of Persons; Mens Rea; Cognizable and Non-Cognizable Offences; Bail; Continuing Offences; Compounding of Offences; Summons and Warrants; Searches; Summary Trial. 11. Indian Evidence Act, 1872: Statements about the facts to be proved; Relevancy of facts connected with the fact to be proved; Opinion of Third Persons ; Facts of which evidence cannot be given; Oral, Documentary and Circumstantial Evidence; Burden of proof; Presumptions; Estoppel; Witness; Improper admission & rejection of evidence. 12. Special Courts, Tribunals under Companies Act & Other Legislations: Constitution; Powers of Tribunals; Procedure before Tribunals; Powers of Special Courts; Power to punish for contempt; Overview of NCLT Rules; Quasi-Judicial Authorities. 13. Arbitration and Conciliation Act, 1996: Arbitration Law in India; Appointment of Arbitrators; Judicial Intervention; Award; Recourse against Award; Conciliation and Mediation. 14. Indian Stamp Act, 1899: Key Definitions; Principles of Levy of Stamp Duty; Determination, Mode and timing of Stamp Duty; Person responsible; Consequences of Non-Stamping and Under-Stamping; Adjudication; Allowance and Refund ; Concept of E-Stamping. 15. Registration Act, 1908: Registration of Documents: Compulsory, Optional; Time and Place of Registration; Consequences of Non-Registration; Prerequisites for Registration. 16. Right to Information Act, 2005: Key Definitions; Public Authorities & their Obligations; Role of Central/State Governments; Central Information Commission; State information Commission. 17. Information Technology Act, 2000 : Introduction, definition, important terms under the Act; Digital Signatures, Electronic Record, Certifying Authority, Digital Signature Certificate; Cyber Regulation Appellate Tribunal; Offences and Penalties; Rules relating to sensitive personal data under IT Act. Case Laws, Case Studies & Practical Aspects v  LESSON WISE SUMMARY JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS Lesson 1 - Sources of Law Law is not static. As circumstances and conditions in a society change, laws are also changed to fit the requirements of society. At any given point of time the prevailing law of a society must be in conformity with the general statements, customs and aspirations of its people. The object of law is to from an order which in turn provides hope of security for the future. Law is expected to provide socio-economic justice and remove the existing imbalances in the socio-economic structure and to play special role in the task of achieving various socio-economic goals enshrined in our Constitution. It has to serve as a vehicle of social change and as a harbinger of social justice. The objective of the lesson is to introduce the students regarding: Meaning of law and its significance; Relevance of Law to Civil Society; Jurisprudence; and Legal Theory. Lesson 2 - Constitution of India The preamble to the Constitution sets out the aims and aspirations of the people of India. It is a part of the Constitution. The preamble declares India to be a Sovereign, Socialist, Secular, Democratic Republic and secures to all its citizens Justice, Liberty, Equality and Fraternity. It is declared that the Constitution has been given by the people to themselves, thereby affirming the republican character of the polity and the sovereignty of the people. All public authorities – legislative, administrative and judicial derive their powers directly or indirectly from it and the Constitution derives its authority from the people. It is expected that, at the end of this lesson, students will, inter alia be in a position to: Understand Broad Framework of the Constitution of India; Fundamental Rights; Directive Principles of State Policy; Fundamental Duties; Powers of Union and States; Judicial framework; Legislative Process; Parliamentary Standing Committees and their Role; Writ Jurisdiction of High Courts and the Supreme Court; and Different types of writs. vi Lesson 3 - Interpretation of Statutes The primary object of the interpretation of statutes is to discover the true intention of the Legislature; and where the intention can be indubitably ascertained the courts are bound to give effect to it regardless of their opinion about its wisdom or folly. The phrase “Interpretation of Statutes” implies the judicial process of determining, in accordance with certain rules and presumptions, the true meaning of the Acts of the Parliament. In this context, the phrase would mean a process or manner that conveys one’s understanding of the ideas of the creator, or understand as having a particular meaning or significance, explanation, explication or a clarification for a particular statute or law. The lesson aims at: Familiarizing students with Need for interpretation of a statute; Help students learn the Principles of Interpretation; and Equip the students with the Aids to Interpretation. Lesson 4 - General Clauses Act, 1897 The General Clauses Act 1897 belongs to the class of Acts which may be called as interpretation Acts. An interpretation Act lays down the basic rules as to how courts should interpret the provisions of an Act of Parliament. It also defines certain words or expressions so that there is no unnecessary repetition of definition of those words in other Acts. In other words, an Interpretation Act provides a standard set of definitions or extended definitions of words and expressions commonly used in legislation. It also provides a set of rules which regulate certain aspects of operation of other enactments. In addition there are other provisions which are not merely definitions or rules of construction but substantive rules of law. The purpose of this lesson is to provide the students with: Fundamental knowledge of the Key Definitions; General Rule of Construction; Retrospective Amendments; and Powers and Functions under the Act. Lesson 5 - Administrative Laws The modern state typically has three organs- legislative, executive and judiciary. Traditionally, the legislature was tasked with the making of laws, the executive with the implementation of the laws and judiciary with the administration of justice and settlement of disputes. This has led to an all pervasive presence of administration in the life of a modern citizen. In such a context, a study of administrative law assumes great significance. The objective of the lesson is to introduce the students regarding: Conceptual Analysis; Source and Need of Administrative Law; Principle of Natural Justice; Administrative Discretion; and Judicial Review. vii Lesson 6 - Law of Torts In general, a tort consists of some act or omission done by the defendant (tortfeasor) whereby he has without just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be a wrongful act or omission of the defendant; the wrongful act must result in causing legal damage to another and the wrongful act must be of such a nature as to give rise to a legal remedy. It is expected that, at the end of this lesson, students will, inter alia, be in a position to: Understand the general conditions of Liability for a Tort; Strict and Absolute Liability; Vicarious Liability; Torts or wrongs to personal safety and freedom; and Liability of a Corporate Entity/Company in Torts; Remedies in Torts. Lesson 7 - Limitation Act, 1963 The Courts in India are bound by the specific provisions of the Limitation Act and are not permitted to move outside the ambit of these provisions. Limitation Act prescribes different periods of limitation for suits, petitions or applications. Court may also admit an application or appeal even after the expiry of the specified period of limitation if it is satisfied with the applicant or the appellant, as the case may be as to sufficient cause for not making it within time. The objective of the lesson is to facilitate the students to acquaint with: Computation of the Period of Limitation; Bar of Limitation; Effect of acknowledgment; Acquisition of ownership by Possession; and Classification of Period of Limitation. Lesson 8 - Civil Procedure Code, 1908 The Civil Procedure Code consolidates and amends the law relating to the procedure of the Courts of Civil jurisdiction. The Code does not affect any special or local laws nor does it supersede any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. The Code is the general law so that in case of conflict between the Code and the special law the latter prevails over the former. Where the special law is silent on a particular matter the Code applies, but consistent with the special enactment. The objective of the lesson is to familiarize the students with: Structure and jurisdiction of Civil Courts; Basic Understanding of Certain Terms Order, Judgment and Decree; Stay of Suits; Cause of Action; Res Judicata; Summary Proceedings; viii  Appeals; Review and Revision; and Summary Procedure. Lesson 9 - Indian Penal Code, 1860 The Indian Penal Code, 1860 is the substantive law of crimes. In India, the base of the crime and punitive provision has been laid down in Indian Penal Code, 1860.With the proliferation in juristic persons and a growth in their activities which increasingly touch upon the daily lives of ordinary people, criminal law has evolved to bring such persons within its ambit. For example, according to section 11 of the IPC, the word ‘person’ includes any Company or Association, or body of persons, whether incorporated or not. Thus companies are covered under the provisions of the IPC. Virtually in all jurisdictions across the world governed by the rule of law, companies can no longer claim immunity from criminal prosecution on the ground that they are incapable of possessing the necessary mens rea for the commission of criminal offences. The criminal intent of the ‘alter ego’ of the company/ body corporate, i.e., the person or group of persons that guide the business of the company, is imputed to the company. It is expected that, at the end of this lesson, students will, inter alia, be in a position to: Offences against Property; Criminal Misappropriation of Property; Criminal Breach of Trust; Cheating; Forgery; Defamation; and Abetment and Criminal Conspiracy. Lesson 10 - Criminal Procedure Code, 1973 The Code of Criminal Procedure creates the necessary machinery for apprehending the criminals, investigating the criminal cases, their trials before the criminal courts and imposition of proper punishment on the guilty person. The Code enumerates the hierarchy of criminal courts in which different offences can be tried and then it spells out the limits of sentences which such Courts are authorized to pass.It is an Act to consolidate and amend the law relating to the procedure to be followed in apprehending the criminals, investigating the criminal cases and their trial before the Criminal Courts. The objective of the lesson is to familiarize the students with: Classes of Criminal Courts; Power of Courts; Cognizable and Non-Cognizable Offences; Summons and Warrants; and Summary Trial. ix Lesson 11 - Indian Evidence Act, 1872 The Indian Evidence Act, 1872 is an Act to consolidate, define and amend the Law of Evidence. In general the rules of evidence are same in civil and criminal proceedings but there is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability due regard being had to the burden of proof, is sufficient basis of a decision, but in the latter, especially when the offence charged amounts to felony or treason, a much higher degree of assurance is required. The persuasion of guilt must amount to a moral certainty such as to be beyond all reasonable doubt. This lesson is designed to familiarize the students with: Statements about the facts to be proved; Relevancy of facts connected with the fact to be proved; Facts of which evidence cannot be given; Oral, Documentary and Circumstantial Evidence; Burden of proof; and Improper admission & rejection of evidence. Lesson 12 - Special Courts, Tribunals under Companies Act & Other Legislations Tribunal is an administrative body established for the purpose of discharging quasi-judicial duties. Tribunals are the quasi-judicial bodies established to adjudicate disputes related to specified matters which exercise the jurisdiction according to the Statute establishing them. The Tribunal has to exercise its powers in a judicious manner by observing the principles of natural justice or in accordance with the statutory provisions under which the Tribunal is established. Companies Act, 2013 empowers the Central Government to constitute National Company Law Tribunal and National Company Law Appellate Tribunal, respectively to exercise and discharge such powers and functions as are, or may be, conferred on it by or under the Companies Act or any other law for the time being in force. It is expected that, at the end of this lesson, students will, inter alia, be in a position to: Understand the Constitution and Powers of Tribunals; Familiarize with Procedure before Tribunals; Appeal to Supreme Court; and Know the Powers of Special Courts. Lesson 13 - Arbitration and Conciliation Act, 1996 The Arbitration and Conciliation Act, 1996 aims at streamlining the process of arbitration and facilitating conciliation in business matters. The Act recognizes the autonomy of parties in the conduct of arbitral proceedings by the arbitral tribunal and abolishes the scope of judicial review of the award and minimizes the supervisory role of Courts. The objective of the lesson is to facilitate the students to acquaint with: Arbitration Law in India; Appointment of Arbitrators; Judicial Intervention; Arbitral Award; and Conciliation and Mediation. x Lesson 14 - Indian Stamp Act, 1899 The Indian Stamp Act, 1899 is the law relating to stamps which consolidates and amends the law relating to stamp duty. It is a fiscal legislation envisaging levy of stamp duty on certain instruments. Instrument includes every document by which any right or liability, is, or purported to be created, transferred, limited, extended, extinguished or recorded. Any instrument mentioned in Schedule I to Indian Stamp Act is chargeable to duty as prescribed in the Schedule. The objective of the lesson is to facilitate the students to acquaint with: Principles of Levy of Stamp Duty; Mode and timing of Stamp Duty method of Stamping; Person responsible; Consequences of Non-Stamping and Under-Stamping; and Concept of E-Stamping. Lesson 15 - Registration Act, 1908: Registration of Documents The Registration Act, 1908 is the law relating to registration of documents. The object and purpose of the Act among other things is to give information to people regarding legal rights and obligations arising or affecting a particular property, and to perpetuate documents which may afterwards be of legal importance, and also to prevent fraud. This lesson is designed to familiarize the students with: Registerable Documents; Documents whose registration is compulsory; Documents of which registration is optional; and Consequences of Non-Registration. Lesson 16 - Right to Information Act, 2005 The Right to Information Act, 2005 is an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. The Act, allowing transparency and autonomy, and access to information in public authorities. The objective of the lesson is to facilitate the students to acquaint with: Public Authorities & their Obligations; Right to Information; Role of Central/State Governments; Central Information Commission; and State information Commission. xi Lesson 17 - Information Technology Act, 2000 The General Assembly of the United Nations by resolution A/RES/51/162 dated the 30th January, 1997 has adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law. The said resolution recommends inter alia that all States give favourable consideration to the said Model Law when they enact or revise their laws, in view of the need for uniformity of the law applicable to alternatives to paper based methods of communication and storage of information. It is considered necessary to give effect to the said resolution and to promote efficient delivery of Government services by means of reliable electronic records, Parliament enacted Information Technology Act, 2000to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto. This lesson is designed to familiarize the students with: Digital Signatures; Electronic Record; Certifying Authority; Digital Signature Certificate; Appellate Tribunal; and Offences and Penalties. xii  LIST OF RECOMMENDED BOOKS PAPER 1 : JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS 1. Relevant Bare Acts. 2. N.D. Kapoor & Rajni Abbi : General Laws and Procedures; Sultan Chand & Sons. New Delhi 3. Durga Das Basu : Constitution of India; Prentice Hall of India, New Delhi 4. G.W. Paton : A Textbook of Juris Prudence 5. Jagdish Swarup : Legislation and Interpretation 6. M.P. Tandon : Civil Procedure Code; Allahabad Law Agency, Allahabad. 7. Ratanlal & Dhirajlal : The Indian Penal Code 8. Ramaswamy Iyer : The Law of Torts; N.M. Tripathi, Private Ltd., Bombay. 9. Dr. D.K. Singh (Ed.) : V.N. Shukla’s the Constitution of India; Eastern Book Company, Lucknow 10. Lawman’s : General Clauses Act 11. V.P. Sarathi : Elements of Law of Evidence, Eastern Book Company, Lucknow 12. V.G. Ramachandran : Law of Limitation; Eastern Book Company, Lucknow 13. G.P. Singh : Principles of Statutory Interpretation; Wadhwa Publishing Company, Nagpur. 14. S.K. Roy Chowdhary & H. K. Saharay : Law of Arbitration and Conciliation; Eastern Law House, Calcutta 15. Eastern Book Company : Code of Criminal Procedure 16. R.V. Kelkar : Lectures on Criminal Procedure, 4th Edn., Revised by Dr. K.N. Chandrasekharan Pillai, Eastern Book Company, Lucknow 17. B.M.Gandhi : Interpretation of Statutes; Eastern Book Company, 34, Lalbagh, Lucknow-226 001 xiii Journals: 1. e-Bulletin (`Student Company Secretary’) The ICSI, New Delhi-110 003. 2. Chartered Secretary (Monthly) The ICSI, New Delhi-110 003. 3. All India Reporter All India Reporter Ltd., Congress Nagar, Nagpur. Note: 1. Students are advised to read the above journals for updating the knowledge. 2. Students are advised to read/refer the latest editions of the recommended books. 3. Students are also advised to read legal glossary/legal terms given in Appendix. xiv  ARRANGEMENT OF STUDY LESSON MODULE-1 PAPER-1 JURISPRUDENCE, INTERPRETATION AND GENERAL LAWS Sr. No. Lesson Title 1. Sources of Law 2. Constitution of India 3. Interpretation of Statutes 4. General Clauses Act, 1897 5. Administrative Law 6. Law of Torts 7. Limitation Act, 1963 8. Civil Procedure Code, 1908 9. Indian Penal Code, 1860 10. Criminal Procedure Code, 1973 11. Indian Evidence Act, 1872 12. Special Courts, Tribunals under Companies Act & Other Legislations 13 Arbitration and Conciliation Act, 1996 14. Indian Stamp Act, 1899 15. Registration Act, 1908: Registration of Documents 16. Right to Information Act, 2005 17. Information Technology Act, 2000 xv  CONTENTS LESSON 1 SOURCES OF LAW Introduction  2 Natural School  2 Positivistic Definition of Law  2 Historical Definition of Law  3 Sociological Definition of Law  3 Realist Definition of Law  3 Significance of Law  4 Sources of Indian Law  4 Principle Sources of Indian Law  5 Classification of Customs  6 Requisites of a Valid Custom  6 Judicial Decision or Precedents  7 High Courts  7 Supreme Court  8 Kinds of Precedents  8 Doctrine of Stare Decisis  9 Statutes or Legislation  10 Personal Law  10 Secondary Source of Indian Law  11 Justice, Equity and Good Conscience  11 Sources of English Law  12 Mercantile or Commercial Law  13 Sources of Mercantile Law  13 Mercantile Law in India  14 Sources of Indian Mercantile Law  14 jurisprudence  15 Legal Theory  16 Criticism of Austin’s Command Theory of law  17 Criticism of Kelsen’s Pure Theory  21 Criticism of Bentham’s theory of law  22 LESSON ROUND-UP  22 xvi GLOSSARY  23 SELF-TEST QUESTIONS  24 LIST OF FURTHER READINGS  24 OTHER REFERENCES  24 LESSON 2 CONSTITUTION OF INDIA Broad Framework of the Constitution  26 Preamble  26 Structure  26 Judicial View  27 Peculiar Features of Indian Federalism  27 Fundamental Rights  28 The Concept of Fundamental Rights  28 Inclusion of Fundamental Rights in Part III of the Constitution  29 Definition of State  29 Justifiability of Fundamental Rights  31 Doctrine of Severability  31 Doctrine of Eclipse  32 Waiver  32 Right of equality  33 Article 14: Equality before the law and equal protection of the laws  33 Article 15: Prohibition of discrimination on grounds of religion etc.  35 Article 16: Equality of opportunity in matters of public employment  36 Article 17: Abolition of untouchability  37 Article 18: Abolition of titles  37 Rights Relating to Freedom  38 Scope and Limitations on the Freedoms  39 Monopoly  43 Protection in respect of conviction for offences  43 Protection of life and personal liberty  44 Article 21A: Right to Education  45 Preventive Detention  46 Right against Exploitation  47 Right to Freedom of Religion  47 xvii Cultural and Educational Rights [Rights of Minorities]  49 Articles 31A, 31B and 31C relating to Property  50 Right to Constitutional Remedies  51 Remedies for enforcement of Fundamental Rights  52 Supplementary provisions  52 Amendability of the Fundamental Rights  53 Directive Principles of State Policy  55 Conflict between a Fundamental Right and a Directive Principle  55 Fundamental Duties  57 Ordinance Making Powers  58 Of the President  58 Of the Governor  59 Legislative Powers of the Union and the States  59 Two Sets of Government  59 Territorial Distribution  60 Freedom of Trade, Commerce and Intercourse  67 Constitutional Provisions Relating to State Monopoly  69 The Judiciary  69 The Supreme Court  69 High Courts  69 Subordinate Courts  70 Civil Courts  70 Criminal Courts  70 Special Tribunals  70 Writ Jurisdiction of High Courts and Supreme Court  70 Types of Writs  71 Delegated Legislation  73 Classification of delegated legislation  73 Classification of Subordinate Legislation  73 Separation of Powers  75 Legislative Functions  75 Bill  75 Law making process (How a Bill becomes an Act)  77 Parliamentary Committees  78 Ad hoc and Standing Committees  78 xviii Other Committees  79 LESSON ROUND-UP  79 GLOSSARY  80 SELF-TEST QUESTIONS  81 LIST OF FURTHER READINGS  81 OTHER REFERENCES  81 LESSON 3 INTERPRETATION OF STATUTES Introduction  84 Need for and Object of Interpretation  84 General Principles of Interpretation  85 Primary Rules  86 Other Rules of Interpretation  89 Presumptions  90 Internal and External Aids in Interpretation  91 Internal Aids in Interpretation  91 External Aids in Interpretation  95 LESSON ROUND-UP  96 GLOSSARY  97 SELF-TEST QUESTIONS  97 LIST OF FURTHER READINGS  98 LESSON 4 GENERAL CLAUSES ACT Introduction  100 Importance of the General Clauses Act, 1897  101 Definitions  101 Application of foregoing definitions to previous enactment (Section 4)  107 Application of certain definitions to Indian laws (Section 4A)  108 General Rules of Construction (Section 5-13)  108 Coming into operation of enactment (Section 5)  108 Effect of Repeal (Section 6)  108 Repeal of Act making textual amendment in Act or Regulation (Section 6A)  108 Revival of repealed enactment (Section 7)  109 Construction of references to repealed enactment (Section 8)  109 xix Commencement and termination of time (Section 9)  109 Computation of time (Section 10)  109 Measurement of distances (Section 11) 110 Duty to be taken pro rata in enactments (Section 12)  110 Gender and number (Section 13)  110 Powers and Functionaries  110 Powers conferred to be exercisable from time to time (Section 15)  110 Power to appoint to include power to appoint ex officio (Section 15)  110 Power to appoint to include power to suspend or dismiss (Section 16)  110 Substitution of functionaries (Section 17)  110 Successors (Section 18)  110 Official’s chiefs and sub-ordinates (Section 19)  110 Provisions as To Orders, Rules, Etc., Made Under Enactments  111 Construction of notifications, etc., issued under enactments (Section 20)  111 Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws (Section 21)  111 Making of rules or bye-laws and issuing of orders between passing and commencement of enactment (Section 22)  111 Provisions applicable to making of rules or bye-laws after previous publication (Section 23)  111 Continuation of orders, etc. issued under enactments repealed and re-enacted (Section 24)  111 Miscellaneous  112 Recovery of fines (Section 25)  112 Provision as to offences punishable under two or more enactments (Section 26)  112 Meaning of service by post (Section 27)  112 Citation of enactments (Section 28)  112 LESSON ROUND-UP  113 GLOSSARY  113 SELF-TEST QUESTIONS  114 LIST OF FURTHER READINGS  114 OTHER REFERENCES  114 LESSON 5 ADMINISTRATIVE LAW Introduction  116 Need for Administrative Law  116 Sources of Administrative Law  117 xx Administrative Discretion  118 Judicial Control over Administrative Actions  118 Principles of Natural Justice  124 Exceptions to Natural Justice  126 Effect of Failure of Natural Justice  127 Liability  128 Liability of State or Government in Contract  128 Effect of a valid contract with Government  129 Quasi-Contractual Liability  129 Suit against State in Torts  129 Damages  131 Liability of the Public Servant  131 Liability of Public Corporation  132 Examples of Public Corporation  132 LESSON ROUND-UP  133 GLOSSARY  133 SELF-TEST QUESTIONS  134 LIST OF FURTHER READINGS  134 OTHER REFERENCES  134 LESSON 6 LAW RELATING TO TORTS Law Relating to Torts  136 General Conditions of Liability for a Tort  136 Damnum Sine Injuria  137 Injuria Sine Damnum  137 Mens Rea  138 Kinds of Tortious Liability  138 Strict or Absolute Liability  138 Exceptions to the Rule of Strict Liability  139 Applicability of the rule in Rylands v. Fletcher in cases of enterprises engaged in a hazardous or  140 inherently dangerous industry Vicarious Liability  141 Vicarious Liability of the State  142 Role of the State Tort Law  143 Torts or Wrongs to Personal Safety and Freedom  147 xxi Remedies in Torts  149 Judicial Remedies  149 Extra Judicial Remedies  149 LESSON ROUND-UP  150 GLOSSARY  151 SELF-TEST QUESTIONS  151 LIST OF FURTHER READINGS  151 OTHER REFERENCES  151 LESSON 7 LIMITATION ACT 1963 Introduction  154 Computation of the Period of Limitation for Different types of Suits  154 Bar of Limitation  154 Extension of Time in Certain Cases  154 Doctrine of sufficient cause  154 Persons under legal disability  156 Continuous Running of Time  156 Computation of Period of Limitation  157 Effect of Acknowledgement on the Period of Limitation  158 Effect of Payment on Account of Debt or of Interest on Legacy  159 Computation of Time Mentioned in Instruments  159 Acquisition of ownership by possession  159 Limitation and writs under the constitution  159 The Schedule  160 Classification of period of limitation  171 LESSON ROUND-UP  171 GLOSSARY  172 SELF-TEST QUESTIONS  172 LIST OF FURTHER READINGS  172 OTHER REFERENCES  172 xxii  LESSON 8 CIVIL PROCEDURE CODE, 1908 Introduction  174 Aim and Scope of Civil Procedure Code, 1908 [CPC]  174 Scheme of the Code  174 Some Important Terms  175 Structure of Civil Courts  177 Jurisdiction of Courts and Venue of Suits  177 Stay of Suit (Doctrine of Res Sub Judice)  178 Place of Suing (Territorial)  179 Res Judicata  180 Set-off counter-claim and equitable set-off  183 Temporary Injunctions and Interlocutory Orders (Order XXXIX)  183 Detention, preservation, inspection etc. of subject-matter of suit  184 Institution of Suit (Order IV)  185 Important Stages in Proceedings of A Suit  186 Delivery of Summons by Court  187 Appeals  192 Reference, Review and Revision  193 Suits By or Against a Corporation  194 Suits By or Against Minors  194 Summary Procedure  195 Summary Judgment  196 Saving of inherent powers of Court.  196 LESSON ROUND-UP  197 GLOSSARY  198 SELF-TEST QUESTIONS  199 LIST OF FURTHER READINGS  199 OTHER REFERENCES  199 LESSON 9 INDIAN PENAL CODE, 1860 Introduction  202 Indian Penal Code, 1860  202 Jurisdiction of Indian Penal Code, 1860  202 xxiii The Fundamental Elements of Crime  204 Corporate Body and Mens Rea  206 The Stages of Crime  206 Presumption of Innocence and Burden of Proof  208 Punishment  208 Criminal conspiracy  209 Definition of criminal conspiracy  209 Punishment of criminal conspiracy  209 Criminal Misappropriation of Property  210 Dishonest misappropriation of property  210 Dishonest misappropriation of property possessed by deceased person at the time of his death (Section 404)  211 Criminal Breach of Trust  212 Criminal breach of trust (Section 405)  212 Criminal Breach of Trust – Essential Ingredients  213 Punishment for criminal breach of trust.  214 Criminal breach of trust by carrier  214 Criminal breach of trust by clerk or servant  214 Criminal breach of trust by public servant, or by banker, merchant or agent  215 Cheating  216 Cheating – Main Ingredients  216 Cheating by personation  217 Punishment for cheating  217 Punishment for cheating by personation  217 Dishonestly or fraudulently preventing debt being available for creditors  218 Dishonestly or fraudulently preventing debt being available for creditors (Section 422)  218 Dishonest or fraudulent execution of deed of transfer containing false statement of consideration (Section 423)  219 Dishonest or fraudulent removal or concealment of property  219 Forgery  220 Forgery (Section 463)  220 Punishment for forgery  220 Defamation  220 Exceptions  221 Punishment for defamation  222 Kinds of Defamation  223 xxiv Printing or engraving matter known to be defamatory  223 General exceptions  223 LESSON ROUND-UP  226 GLOSSARY  227 SELF-TEST QUESTIONS  227 LIST OF FURTHER READINGS  227 OTHER REFERENCES  277 LESSON 10 CRIMINAL PROCEDURE CODE, 1973 Introduction  230 Important Definitions  230 Offence  230 Mens rea  230 Bailable Offence and Non-bailable Offence  230 Cognizable Offence and Non-cognizable Offence  230 Complaint  231 Bail  231 Inquiry  232 Investigation  232 Judicial Proceeding  232 Pleader  232 Public Prosecutor  232 Summons and Warrant Cases  232 Classes of Criminal Courts  233 Power of Courts  233 Arrest of Persons  234 Summons and Warrants  237 Summons  237 Warrant of arrest  238 Proclamation and attachment  238 Summons to produce  239 Search warrant  239 Security for keeping the peace and for good behaviour (Chapter VIII)  239 Maintenance of public order and tranquility (Chapter X)  240 xxv Power to issue order in urgent cases of nuisance or apprehended danger  241 Preventive Action of the Police (Chapter XI)  242 Information to the Police and their Powers to Investigate (Chapter XII)  242 Information in cognizable cases  242 Information as to non-cognizable cases and investigation of such cases  242 Police officer’s powers to investigate cognizable case  243 Search by police officer  243 Powers of Magistrate  243 Cognizance of an offence by Magistrate  243 Cognizance of an offence by Courts of Session  244 Complaints to Magistrates  244 Limitation for taking cognizance of certain offences  245 Summary trials  246 LESSON ROUND-UP  248 GLOSSARY  249 SELF-TEST QUESTIONS  249 LIST OF FURTHER READINGS  250 OTHER REFERENCES  250 LESSON 11 INDIAN EVIDENCE ACT, 1872 Introduction  252 Scheme of the Act  253 Relevancy of facts connected with the fact to be proved  256 Statements about the facts to be proved  259 Opinion of third persons when relevant  265 Facts of which evidence cannot be given (Privileged Communications)  266 Oral, documentary and circumstantial evidence  267 Presumptions  269 Estoppel  269 LESSON ROUND-UP  270 GLOSSARY  271 SELF-TEST QUESTIONS  272 LIST OF FURTHER READINGS  272 OTHER REFERENCES  272 xxvi  LESSON 12 SPECIAL COURTS, TRIBUNAL UNDER COMPANIES ACT AND OTHER LEGISLATIONS Introduction  274 Background of Establishment of NCLT & NCLAT  275 Constitution of National Company Law Tribunal  276 Powers Exercise by NCLT Companies Act, 2013  276 Constitution of Appellate Tribunal  283 Benches of Tribunal  283 Orders of Tribunal  284 Appeal from Orders of Tribunal  284 Expeditious Disposal by Tribunal and Appellate Tribunal  284 Appeal to Supreme Court   285 Procedure before Tribunal and Appellate Tribunal   285 Power to Punish For Contempt  286 Delegation of Powers  286 Right to Legal Representation   286 Limitation  286 Institution of proceedings, petition, appeals etc. Before NCLT  286 Particulars to be set out in the address for service  287 Initialing alteration  287 Presentation of petition or appeal  287 Number of copies to be filed  288 Lodging of caveat.  288 Endorsement and Verification  288 Translation of document  288 Production of authorisation for and on behalf of an association  288 Interlocutory applications  289 Rights of a party to appear before the Tribunal  289 Institution of appeals - Procedure before National Company Law Appellate Tribunal  289 Procedure for proceedings  289 Particulars to be set out in the address for service  290 Initialling alteration  290 Presentation of appeal  290 Number of copies to be filed  291 Endorsement and verification  291 xxvii Translation of document  291 Appearance of authorised representative  291 Special Courts  291 Offences Triable by Special Courts  292 Application of Code to Proceedings before Special Court    292 LESSON ROUND-UP  294 GLOSSARY  294 SELF-TEST QUESTIONS  295 LIST OF FURTHER READINGS  295 OTHER REFERENCES  295 LESSON 13 ARBITRATION AND CONCILIATION ACT, 1996 Introduction  298 Arbitration and Conciliation Act, 1996  298 Important Definitions  299 Arbitration  299 Arbitrator  299 Arbitral Award  299 Arbitral Institution  300 Arbitral Tribunal  300 Court  300 International Commercial Arbitration  301 Legal Representative  301 Party  301 Arbitration Agreement  301 Power to Refer Parties to Arbitration where there is an Arbitration Agreement  301 Interim Measures by Court  302 Number of Arbitrators  303 Appointment of Arbitrators  303 Power of Central Government to Amend Fourth Schedule  306 Grounds for Challenge  307 Challenge Procedure  307 Failure or Impossibility to Act as an Arbitrator  308 Termination of Mandate and Substitution of Arbitrator  308 xxviii Competence of arbitral tribunal to rule on its jurisdiction  308 Interim Measures Ordered by Arbitral Tribunal  309 Equal Treatment of Parties  309 Determination of Rules of Procedure  309 Place of Arbitration  310 Commencement of Arbitral Proceedings  310 Language  310 Statements of Claim and Defence  311 Hearings and Written Proceedings  311 Default of a Party  311 Expert Appointed by Arbitral Tribunal  312 Court Assistance in Taking Evidence  312 Rules Applicable to Substance of Dispute  313 Decision Making by Panel of Arbitrators  313 Time Limit for Arbitral Award  313 Fast Track Procedure  314 Settlement  315 Form and Contents of Arbitral Award  315 Regime for Costs  316 Termination of Proceedings  317 Correction and Interpretation of Award; Additional Award  317 Application for Setting Aside Arbitral Award  318 Finality of Arbitral Awards and Enforcement  319 Enforcement  319 Appealable Orders  319 Deposits  319 Lien on Arbitral Award and Deposits as to Costs  320 Arbitration Agreement not to be Discharged by Death of Party Thereto  320 Provisions in case of insolvency  320 Jurisdiction  321 Confidentiality of information  321 Protection of action taken in good faith  321 Limitations  321 Arbitration Council of India (ACI)  321 Establishment and incorporation of Arbitration Council of India  321 xxix Composition of Council  321 Duties and functions of Council  322 Vacancies, etc., not to invalidate proceedings of Council  323 Resignation of Members  323 Removal of Member  323 Appointment of experts and constitution of Committees thereof  323 General norms for grading of arbitral institutions  323 Norms for accreditation  323 General norms applicable to Arbitrator  324 Depository of awards  324 Power to make regulations by Council  324 Chief Executive Officer  324 Enforcement of Certain Foreign Arbitral Awards  324 Awards Made under New York Convention or Geneva Convention  325 Power of Judicial Authority to Refer Parties to Arbitration  325 When Foreign Award Binding  325 Evidence  325 Conditions for Enforcement of Foreign Awards  327 Enforcement of Foreign Awards  328 Appealable Orders  328 Conciliation  328 Application and Scope  329 Commencement of Conciliation Proceedings  329 Number of Conciliators  329 Appointment of Conciliators  329 Submission of Statements to Conciliator  330 Conciliator not Bound by Certain Enactments  330 Role of Conciliator  330 Administrative Assistance  330 Communication between Conciliator and Parties  330 Disclosure of Information  331 Co-operation of Parties with Conciliator  331 Suggestions by Parties for Settlement of Dispute  331 Settlement Agreement  331 Status and Effect of Settlement Agreement 331 xxx Confidentiality  331 Termination of Conciliation Proceedings  332 Resort to Arbitral or Judicial Proceedings  332 Costs  332 Deposits  332 Role of Conciliator in Other Proceedings  333 Admissibility of Evidence in other Proceedings  333 Power of High Court to Make Rules  333 Removal of Difficulties  333 Power to Make Rules  333 Alternative Dispute Resolution (ADR)  334 Areas in which ADR Works  334 LESSON ROUND-UP  334 GLOSSARY  335 SELF-TEST QUESTIONS  335 LIST OF FURTHER READINGS  335 OTHER REFERENCES  335 LESSON 14 INDIAN STAMP ACT, 1899 Introduction  338 Important Definitions  338 Allotment List  338 Banker  338 Bill of Lading  338 Cheque  339 Clearance List  339 Clearance Corporation  339 Conveyance  339 Debenture  339 Depository  339 Instrument  340 Executed / Execution  340 Duly stamped  340 Impressed stamp  340 xxxi Issue  341 Bill of Exchange  341 Bill of exchange payable on demand  341 Bond  341 Chargeable  341 Lease  342 Market security  342 Market value  342 Promissory Note  342 Receipt  343 Securities  343 Settlement  343 Marketable Security  344 Stamp  344 Stock Exchange  344 Instruments Chargeable With Duty  344 Substance and description  345 Extent of Liability of Instruments to Duty (Several Instruments in Single Transaction of Sale, Mortgage or Settlement)  346 Illustrations (Section 4 held applicable)  346 Section 4 Not Applicable  347 Instruments relating to several distinct matters  347 Illustrations as to “distinct matters”  347 Principal and ancillary  348 Instruments Coming Within Several Descriptions in Schedule- I  348 Bonds, Debentures, etc. issued under the Local Authorities Loan Act, 1879  348 Securities Dealt In Depository Not Liable To Stamp Duty  349 Corporatisation and Demutualisation Schemes and Related Instruments not Liable to Duty  349 Reduction, Remission and Compounding Of Duties  350 Valuation for Duty under the Act  350 Consideration to Be Set Out  352 Apportionment  352 Persons liable to pay duty  353 Party liable to pay  354 Receipts  354 Methods of stamping  354 xxxii Use of adhesive stamps  355 Cancellation of adhesive stamps  355 Mode of cancellation of adhesive stamps  356 Denoting duty  357 Time of stamping instruments  358 Adjudication as to stamps  358 Instruments not duly stamped – treatment and consequences (impounding)  359 Unstamped receipts  360 Instruments not duly stamped inadmissible in evidence  360 Admission of instruments (where not to be questioned)  361 Admission of improperly stamped instruments  362 Dealing with instruments impounded  362 Collector’s Power to Stamp Instrument Impounded  362 Instruments unduly stamped by accident  363 Endorsement of Instrument on Which Duty has been Paid Under Sections 35, 40 and 41  363 Prosecution for offences against stamp law  363 Recovery of duty or penalty in certain cases  363 Refund of duty or penalty in certain cases by revenue authority  364 Non-liability for loss of instruments sent under section 38  364 Power to stamp in certain cases  364 Recovery of duties and penalties  364 Allowance and refund  365 Time limits  366 Unused forms  366 Misused stamps  366 Debentures  367 Reference and revision  367 Prosecution  368 Criminal offences  368 Taking cognizance  369 Miscellaneous provisions  369 Schedule  371 E-Stamping  371 LESSON ROUND-UP  372 GLOSSARY  373 xxxiii SELF-TEST QUESTIONS  373 LIST OF FURTHER READINGS  373 OTHER REFERENCES  373 LESSON 15 REGISTRATION ACT 1908: REGISTRATION OF DOCUMENTS Introduction  376 Registerable documents  376 Documents whose registration is compulsory  376 Cases under Section 107 of Transfer of Property Act, and Section 17(1)(d) of Registration Act  378 Exceptions to Section 17(1)  378 Documents of which registration is optional  379 Time limit for presentation  379 Unstamped document  380 Re-registration  380 Several executants  380 Documents executed out of india  380 Presentation of a will  380 Place of registration  380 Copy of a decree or order  381 Registration in certain cities  381 Presenting of documents for registration  381 Enquiry before registration by registering officer  381 Presenting wills and authorities to adopt  382 Deposit of wills  382 Registered document when operative  382 Registered Document relating to Priority when to take effect against Oral Agreement  382 Notice  383 Effect of non-registration of documents required to be registered  383 Certain Registered Documents Relating to land which will take effect against unregistered Documents  383 Miscellaneous Provisions  384 Procedure on admission to registration  384 Certificate of registration  385 Procedure after registration of documents relating to land  385 Procedure after registration  385 Refusal to register by the sub-registrar  385 Reasons for refusal to register to be recorded  385 xxxiv Appeal to registrar  386 Application to registrar  386 Procedure before the registrar  386 Order by registrar to register and procedure thereon  386 Institution of suit in case of order of refusal by registrar  386 Exemption of certain documents executed by or in favour of government  387 LESSON ROUND-UP  387 GLOSSARY  388 SELF-TEST QUESTIONS  389 LIST OF FURTHER READINGS  389 OTHER REFERENCES  389 LESSON 16 RIGHT TO INFORMATION ACT, 2005 Introduction  392 Right to Know  392 The Right to Information (RTI) Act, 2005  392 Salient Features of the Act  393 Objective  393 Definitions  394 Obligations of Public Authority  394 Designation of Public Information Officers (PIO)  395 Request for Obtaining Information  395 Duties of a PIO  396 Exemption from Disclosure  398 Rejection of Request  399 Partial Disclosure Allowed  399 Who is Excluded?  399 Information Commissions  399 Term of office and conditions of service of Central Information Commission  400 Term of office and conditions of service of State Information Commission  400 Powers of Information Commissions  401 Appellate Authorities  402 Penalties  402 Jurisdiction of Courts  403 Role of Central/State Governments  403 LESSON ROUND-UP  403 GLOSSARY  404 SELF-TEST QUESTIONS  405 LIST OF FURTHER READINGS  405 OTHER REFERENCES  405 xxxv  LESSON 17 INFORMATION TECHNOLOGY ACT, 2000 Introduction  408 Documents or transactions to which the act shall not apply  408 Definitions of basic expressions  409 Digital signature and electronic signature  410 Electronic governance (legal recognition of electronic records)  411 Private transactions  411 Public records  411 Delivery of services by service provider  412 Retention of information  412 Audit of documents maintained in electronic form  412 Subordinate legislation  412 Validity of contracts formed through electronic means  412 Attribution and dispatch of electronic records  412 Time and place of dispatch etc.  413 Time of receipt  413 Secure electronic records  413 Certifying authorities  413 Electronic signature certificates  414 Penalties and adjudications  414 Compensation for failure to protect data  415 Adjudicating officer  416 Appellate tribunal  416 Offences  416 Tampering with computer source documents  416 Computer related offences  417 Extraterritorial operation  417 Liability of Network Service Providers  417 LESSON ROUND-UP  418 GLOSSARY  418 SELF-TEST QUESTIONS  419 LIST OF FURTHER READINGS  419 OTHER REFERENCES  419 Test Paper  422 xxxvi Lesson 1 Sources of Law Key Concepts One Learning Objectives Should Know To understand: Legislature Heart of the legal enterprise, an important concept i.e. LAW. Codifying Basics of law. Interpretation The orientation and motivation towards attainment of justice. Construction Comprehension of the cognitive and teleological foundations of Proviso the discipline. Pari materia Objective to present various statutes, cases, procedure, practices and customs as a systematic body of knowledge, and to show the Jurisprudence interconnection between various branches of law, procedure and Natural justice principles. Introduction to law to acquaint students with the law and its terminologies which will enable them to have a better understanding while dealing with statutes. The realm of questions concerning law so that students are able to live beyond their perplexity or complexity and are driven to seek out answers for themselves. Lesson Outline Nature of Law Jurisprudence Meaning Legal Theory Significance of Law LESSON ROUND UP GLOSSARY Relevance of Law to SELF-TEST QUESTIONS Modern Society LIST OF FURTHER Source of Indian Law READINGS Mercantile or Commercial OTHER REFERENCES Law (INCLUDING WEBSITES / VIDEO LINKS)  2  Lesson 1 EP-JI&GL INTRODUCTION The nature and meaning of law has been described by various jurists. However, there is no unanimity of opinion regarding the true nature and meaning of law. The reason for lack of unanimity on the subject is that the subject has been viewed and dealt with by different jurists at different times and from different points of view, that is to say, from the point of view of nature, source, function and purpose of law, to meet the needs of some given period of legal development. Therefore, it is not practicable to give a precise and definite meaning to law which may hold good for all times to come. However, it is desirable to refer to some of the definitions given by different jurists so as to clarify and amplify the term ‘law’. The various definitions of law propounded by legal theorists serve to emphasize the different facets of law and build up a complete and rounded picture of the concept of law. Hereinafter we shall refer to some representative definitions and discuss them. For the purpose of clarity and better understanding of the nature and meaning of law, we may classify various definitions into five broad classes: Natural School Natural law says that certain rights are inherent by virtue of human nature and can be understood universally through human reason. Under this school fall most of the ancient definitions given by Roman and other ancient jurists. Ulpine defined Law as “the art or science of what is equitable and good.” Cicero said that Law is “the highest reason implanted in nature.” Justinian’s Digest defines Law as “the standard of what is just and unjust.” In all these definitions, propounded by Romans, “justice” is the main and guiding element of law. Ancient Hindu view was that ‘law’ is the command of God and not of any political sovereign. Everybody including the ruler, is bound to obey it. Thus, ‘law’ is a part of “Dharma”. The idea of “justice” is always present in Hindu concept of law. Salmond, the prominent modern natural law thinker, defines law as “the body of principles recognised and applied by the State in the administration of justice.” In other words, the law consists of rules recognised and acted upon by the courts of justice. It may be noted that there are two main factors of the definition. First, that to understand law, one should know its purpose: second, in order to ascertain the true nature of law, one should go to the courts and not to the legislature. Vinogradoff described Law as “a set of rules imposed and enforced by society with regard to the attribution and exercise of power over persons and things.” Positivistic Definition of Law According to John Austin, “Law is the aggregate of rules set by man as politically superior, or sovereign, to men as political subject.” In other words, law is the “command of the sovereign”. It obliges a certain course of conduct or imposes a duty and is backed by a sanction. Thus, the command, duty and sanction are the three elements of law.  Lesson 1 Sources of Law 3 Kelsen gave a ‘pure theory of law’. According to him, law is a ‘normative science’. The legal norms are ‘Ought’ norms as distinct from ‘Is’ norms of physical and natural sciences. Law does not attempt to describe what actually occurs but only prescribes certain rules. The science of law to Kelsen is the knowledge of hierarchy of normative relations. All norms derive their power from the ultimate norm called ‘Grundnorm’. Historical Definition of Law Savigny’s theory of law can be summarised as follows: – That law is a matter of unconscious and organic growth. Therefore, law is found and not made. – Law is not universal in its nature. Like language, it varies with people and age. – Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness. – Law has its source in the common consciousness (Volkgeist) of the people. – Legislation is the last stage of law making, and, therefore, the lawyer or the jurist is more important than the legislator. According to Sir Henry Maine, “The word ‘law’ has come down to us in close association with two notions, the notion of order and the notion of force”. Sociological Definition of Law Duguit defines law as “essentially and exclusively a social fact.” Ihering defines law as “the form of the guarantee of the conditions of life of society, assu