Month: June 2020

Specific Protection under Law of Torts

Posted on

This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with the general defences available under the Law of Torts.

INTRODUCTION

When an action for tort is brought against the defendant, the person will certainly be made liable if he had committed the Act. However, in every action for tort, certain defences are open to the defendant, by way of which he can escape his liability. There are eight General Defences are as follows:

  1. Voleneti non fit injuria
  2. Plaintiff the wrongdoer
  3. Inevitable Accident
  4. Act of God
  5. Private Defence
  6. Necessity
  7. Statutory Authority
  8. Mistake

All the general exceptions are discussed in detail below:

1. Volenti non-fit injuria

If the plaintiff has consented to a wrongful act with free consent, without the threat of fraud or coercion to acknowledge the danger voluntarily, he shall have no right to sue the defendant under which both have consented. Consent happens when the plaintiff shows interest in the actions of the defendant. As a result, no man can impose a right that he has willingly surrendered or abandoned and in the case of Hall v. Brooklands Auto-Racing Club[1], the court held that the plaintiff had deliberately taken the risk of watching the race. It’s a type of injury that anyone watching the event could predict. In this case, the defendant was not liable.

2. Plaintiff the wrongdoer

The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from the maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. Thus, an unlawful act of the plaintiff could lead to a valid defence. If the defendant claims that the plaintiff is the wrongdoer himself and is not entitled to damages, it does not mean that the court will leave him free from responsibility, but that he will not be liable under that heading. In the case of Bird v. Holbrook[2], the plaintiff was entitled to recover the damages he had suffered as a result of the sprint guns he had put in his garden without knowledge of the same.

3. Inevitable accident

The inevitable accident was a mishap. It can not be prevented despite the attention and care of the ordinary and intelligent individual. It is also a successful defence if the defendant can show that it neither intended to harm the complainant nor could it prevent injury by taking proper care of him. There is no inevitable accident unless the defendant can prove that something happened that he did not have control over and that the effect could not have been avoided and in the case of Stanley v. Powell, The defendant fired at a pheasant, but the bullet struck the plaintiff after the oak tree had been reflected, and he suffered serious injuries. The incident was considered an inevitable accident and the defendant was not liable.

4. Act of God

The act of God or Vis Major or Force Majeure used in cases where an event over which there is no human control of the act and the damage is caused by the forces of nature. This is beyond human imagination and can not be prevented by human intervention. Act of God is also defined as “Action induced solely by the violence of nature, without any human interference”.  Some of the essentials of Act of God are:

  • The act should be the result of a natural force.
  • It’s extraordinary in nature.
  • No human interference at all

In the case of Nichols v. Marshland[3], there has been an exceptional storm, the highest in human history. It caused the lake bank to burst, and the escaped water carried away four bridges belonging to the plaintiff. It was therefore held that the bridges of the plaintiff had been swept by an act of God, and that the defendant would not be held liable for the same thing.

5. Private Defence

Private defence refers to the defence, where the defendant seeks to protect his or her body or property or any other property and harms another person with reasonable force in imminent danger, where there is no time to report to the authority, it is, therefore a private defence.

6. Necessity

If an action is taken to avoid more damage, even though it has been done deliberately, it is not actionable and acts as a good defence. It gives a person or state the right of using or taking away the property of another. It is well described in the maxim “Solus Populi Suprema Lex,“ i.e. people’s wellbeing is the ultimate law. The act that causes certain damage is, therefore, an excuse when it is done for a large number of people or to avoid harm. It can be explained in the case of Carter v. Thomas[4], the defendant, who breached the plaintiff’s property in good faith to extinguish the fire in which the firefighter had already served, was held responsible for the trespass.

7. Statutory Authority

If an act is authorized by a legislative statute or enacted by the legislature, the defendant will not be held responsible for damages arising from the statute. The powers conferred on the legislature should be exercised with caution so that no unnecessary damage is done and the person must act in good faith and not exceed the powers conferred on the legislature. In the case of Hammer Smith Rail co. v. Brand[5], the plaintiff’s property value was depreciated as a result of loud noise and vibrations produced while the train departed from the railway line, which had been made under statutory provisions. The court held that nothing could be claimed for the damage suffered as had been done under the statutory provisions. In the case, the defendant was held not liable.

8. Mistake

If the defendant acts based on a misconception in certain situations, he may use the defence of error to avoid liability under the law of wrongdoing. This defence can be well explained in the case of Consolidated Company v. Curtis[6], the auctioneer auctioned some of his customer’s goods, believing that the goods belonged to him. But then the true owner filed a suit against the auctioneer for a conversion error. The court held that the auctioneer was liable and stated that the mistake of fact was not a defence, which could be pleaded in this case.

Conclusion

Thus, to sum up, there are various general defences available to the defendant which can be pleaded by him to escape the tortious liability. The plaintiff must bring an action against the defendant for a particular tort, the plaintiff is required to prove all the essentials of that particular tort. If the plaintiff fails to prove all the essential ingredients, the defendant cannot be made liable for the act. However, once the plaintiff proves all the ingredients, the burden of proof then shifts to the defendant who pleads for the defence.

[1] (1932) 1 KB 205

[2] 1825

[3] (1876) 2 ExD 1

[4] 1976

[5] [1869] LR 4 HL 171

[6] (1892) 1 QB 495

Latest Posts

Archives

The Doctrine of Judicial Review in India

Posted on

This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “The Doctrine of Judicial Review in India” and is qualified in its entirety by reference to the Constitution of India.

INTRODUCTION

Article 13 of the Indian Constitution states the compulsion of judicial review as described the fundamental rights in Part III. It has been laid down that neither the state nor the Union shall make any such rules that may take away or abridge the essential rights of the people of the country. Judicial Review is an asset recognized as a basic and vital requirement for the construction of a novel civilization in order to safeguard the liberty and rights of the individuals and it is vested significantly on the High Courts and the Supreme Courts of India. It is the power of Courts to pronounce upon the constitutionality of legislative and executive acts of the government which fall within their normal jurisdiction and any law made by the Parliament or the state legislature will be considered void if it contravenes the provisions of the article under the fundamental rights. One can understand judicial review can be as a court proceeding where the lawfulness of a decision or action is reviewed, usually held in the Administrative Court, by the Hon’ble Judge.

When the constitutional values are harmed by either the Legislative, Executive, or the Judiciary, and any right that been made definite to the inhabitants of the country by the Indian Constitution have been, judicial review plays a crucial role in providing relief and acts as a protector safeguarding the well-justified rights of the citizens. Whether the laws have been correctly applied and whether the right procedures have been followed is the concern behind filing for a judicial review. Judicial Review is made available as a remedy in cases where no effective means of the challenge is left with the aggrieved party.

It is important to note that under Article 246 and Schedule 7 of the Constitution of India the working zone of the regulation construction between the state and the centre has been marked which can be referred to in case any difficulty arises between the state and the centre. 

Evolution of Judicial Review

For the first time ever the Doctrine of Judicial Review was propounded by the Supreme Court of America. Even though the Constitution of America did not expressly provide a provision regarding judicial review but the Hon’ble Supreme Court of America assumed this doctrine in the case of Marbury v Madison.

In India the Doctrine of Judicial Review was being practised even before the Constitution of India was implemented, thanks to the British Parliament which through the Government of India Act, 1935 introduced the Federal System in India gave both, the centre and the state, separate plenary powers in their own territories. This Federal system was to function as an arbiter in the central and state relationship and to inspect any violation of the Constitutional guidance in the distribution of powers. Here, the doctrine of Judicial Review was not discussed explicitly but with the constitution being federal now the court was indirectly held liable with the function of interpreting the constitution and determining the constitutionality of various legislative acts passed. 

This system was followed in India for a significant time and was able to uphold its dignity through various constitutional decisions dealt by the Federal Court of India and the High Courts. Later, this system was inherited by the Supreme Court from its predecessor because the wise constitution-makers were of the view that the Supreme Court of India should be graced with the power of judicial review. 

If one was to look over the evolution of judicial review from a broader perspective, this doctrine has evolved into three dimensions, which are:

  • Protection of essential rights provided under Part III of the Constitution of India. 
  • Authorization of the disinterest of organizational achievements.
  • Interrogating the interest of the public.

Judicial review in India

A very adaptable and healthy system of judicial review has been envisaged by the constitution of India where the duty to maintain the spirit is on the Indian Judges. The courts have been granted a wide range of power of judicial review by the statutory and constitutional provisions and these provision judicial review by the constitution and statutes are very different from each other and the court has the responsibility to practice these powers with great caution and self-control has to be practised. Phasing out from the boundaries of appropriate influences of judicial assessment that has been laid down is not expected from the courts at any cost. 

In the current democratic pattern in the country, the courts are not expected to ask the aggrieved party to wait for the opinion of the public against the tyranny of the legislative and take up a passive attitude, but it has been empowered by the constitution to perform a more active role and, if there’s a violation of the constitution, declare the legislation void for being ultra vires.

In India, the Doctrine of Judicial Review plays a very important role to assess in case either the legislature, executive, or the judiciary harms the values of the constitution of India or denies the rights of the citizens. Since, a Parliamentary form of government exists in the country, in the process of decision making and policymaking every section of people are involved. The groundwork of social equity is the application of rules which is the primary duty of the court. Everyone who is invested in public duty can be held accountable and they are obligated to work within the democratic provisions provided under the Constitution of India. Under Article 226 and 227, and Article 32 and 136, the influence of Judicial assessment has been laid down in case of a High Court or the Supreme Court, respectively.

One may say the concept of Separation of Power and Rule of Law is Judicial review itself in India. 

In India, the fundamental subjects of Judicial review relate to

  1. Violation of fundamental rights.
  1. Violation of various other constitutional restrictions embodied in the constitution.
  2. Enactment of the legislative act in violation of constitutional mandates regarding distribution of powers.
  3. Delegation of essential legislative power by the legislature to the executive or any other body.
  4. Violation of implied limitations and restrictions.

Mechanism of Judicial Review in India

Three aspects are covered by judicial review in India.

  1. The Judicial review of Legislative actions.
  2. The Judicial review of Judicial actions
  3. The Judicial review of Administrative Actions.

In the case of L. Chandra Kumar v. Union of India ((1997) 3 SCC 261), the Supreme Court discussed these facets of judicial review and stated that the legislation has to be interpreted by the High Courts to the limit that the Constitutional values are not disrupted, and in order to achieve this end the Judges need to keep in mind that equilibrium of control, which has been specified in the Constitution of India, should not be disturbed.

ARTICLE 13 OF THE CONSTITUTION OF INDIA

An express provision for Judicial Review has been provided under Article 13 of the Constitution of India. It provides for the judicial review of legislation of India and is applicable in a retrospective manner as well. It confers the right on the High Court and Supreme Court of India to declare any legislation unconstitutional if it is held inconsistent with any provision of Part III of the Constitution. It entitles the court to strike down or declare any law void under Article 13(2) if it abridges any fundamental right. 

In the case of A. K. Gopalan v. State of Madras (AIR 1950 SC 27), the court held that all laws must be in conformity with the constitution and it is on the judiciary to decide whether any enactment is constitutional or not, and a similar idea was held in the case of State of Madras v. V. G. Row (AIR 1952 SC 196), as well.

Some Important Judicial Pronouncements to follow

In the case of Shankari Prasad v Union of India (AIR 1951 SC 458), it was held by the six judge bench out of which five judges did not agree to amending the essential rights provided in the Indian Constitution, however, in the case of Keshavananda Bharati v State of Kerala (AIR 1973 SC 1461) overruling the Golaknath v. State of Punjab case, six out of seven judges held that modifying influence the Parliament has and all portions of the Constitution can be amended. The Supreme Court held that the essential rights cannot be modified. 

After taking inference from cases like Keshavananda Bharati v. State of Kerala, Minerva Mills Ltd. and ors. v. Union of India (AIR 1980 SC 1789), Indira Gandhi v. Raj Narain (1975), and Chandra Kumar v. Union of India and Ors. (AIR 1997 SC 1125), in R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), it was held that Judicial Review is an integral part of the constitution.

Some other landmark cases which further illustrate the importance of Judicial Review are: Brij Bhurshan v. State of Delhi (AIR 1950 SC 129), Romesh Thapper v. State of Madras (AIR 1950 SC 124), Sajjan Singh vs State of Rajasthan (AIR 1965 SC 845), ADM Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207), S.P Sampat Kumar v. Union of India (AIR 1987 SC 386), Shayara Bano v. Union Of India (W.P.No. 118 of 2016),  Joseph Shine v. Union of India (AIR 2018), Anuradha Bhasin v. Union of India (2020 SC), and P.U.C.L v. U. O. I (AIR 1997 SC 568).

To conclude, over the years judicial review has presumed a permanent status by the means of judicial decisions and is a part of the basic structure of the constitution of India, thus, it cannot be done away with but has to be understood as a very important in maintaining harmony and keeping a restrain on the actions of the executive, legislative, and judicial government bodies.

Latest Posts

Archives

Power, Duties and Kinds of Director

Posted on

In this article, Sagnik Chatterjee who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses the Powers and Duties of Directors along with the kinds of Directors under the new Indian Companies Act, 2013.

INTRODUCTION

The companies act what is in force was revised in 2013 and prior to this amendment, there was no statement of legal obligations or duties or liabilities of directors. The acts of directors were previously supervised in the context of their powers in different positions in different companies according to section 291 of the Companies Act, 1956 and other applicable laws, along with their several legal precedents as laid down in common law. The Companies Act 2013 specified the roles and responsibilities of a director alongside amending section 149 which introduces the concept of independent director which was previously a part of listing agreements only, and the duties and liabilities of the same.

Director & the Board in Companies Act

The companies act, 2013 in section 2(34) defines the term “director” as “a director appointed to the Board of a company”. In the same definition clause “Board” in relation to a company, is defined as the collective body of the directors of the company.

As per the amended Companies Act provisions, every director shall be appointed by the company board members and the stakeholders in annual general meeting, provided they have been allotted the Director Identification Number (DIN) and on submission of a declaration that he/she is not disqualified to become a director. Section 166 (4) provides for the appointment of the new director, approval of minimum two-thirds of the total number of the existing directors of the company is needed, and such appointments may be made once in every three years and casual vacancies of such directors shall be filled.

The Power and Duties of a Director

Section 166 of the Companies Act, 2013 states the power and duties of Director Act which applies to all types of Directors. The Duties and Responsibilities can be broadly classified into two categories:

  • Promoting corporate governance through the sincerest efforts and being proactive solving of critical corporate issues and mature decision making to avoid unnecessary risks to the corporate entity and its shareholders.
  • Keeping a balance between the interests of the company and its stakeholders, instead of his/her personal interests.

The powers and duties of Directors in accordance with Companies Act, 2013 is mentioned below;

  1. A director has to act in accordance with the Articles of Association (AOA) of the company in any possible circumstances and cannot arbitrarily take any decisions according to his/her own whims and fancies.
  2. A director must always pursue the best interests of the stakeholders of the company, but also maintain a balance between the objects of the company and Shareholder’s interests in good faith.

A Company cannot make a contract before it is incorporated because, before incorporation, it has no legal existence. Therefore, a Company after incorporation cannot ratify a contract previously made or deny the Contract and that decision depends on the existing directors of the company. It must make a fresh contract. In the case of  Kelner v. Baxter the Court of Common Pleas held that where a person purports to sign a contract as an agent, but has no principle in existence at the time, he is personally responsible.

  1. A director is free to use his/her own judgement to exercise his duties according to the present circumstances at hand but always keeping in mind the interests of the company and with due and reasonable care, skill and diligence.

In the case of R.K. Dalmia and others v. The Delhi Administration it was held that, 

“A director will be personally liable on a company contract when he has accepted personal liability either expressly or impliedly. Directors are the agents or the trustees of a Company.”

  1. A director ought to always know about any conflict of interest situations and should always try to avoid such conflicts for the greater interest of the company.
  2. Before approving any related party transactions, the Director of the company has to ensure that adequate deliberations are held and such transactions are being approved in the sole interest of the company.
  3. Confidentiality of sensitive proprietary information, Commercial Secrets, technologies, unpublished price to be maintained by the Directors of the company and should not be disclosed to any third party unless approved by the rest of the board or required by law.
  4. A Director of a Company must not assign his office and any assignment so made, and if done those acts shall be deemed void.
  5. If a director of the company contradicts the provisions of this section such director shall be penalized with fine which shall not be less than One Lakh Rupees and which may get extended to five Lac Rupees depending upon the facts and circumstances.

A director is always bound by the Latin maxim delegatus non-potest delegare. He/She gets appointed by the Shareholders because of their faith in his/her skills, competence and integrity and they may not have the same faith in another person delegated by the Director. It was held in the case of J.K. Industries v. Chief Inspector of Factories that the directors being in control of the company’s affairs cannot get rid of their managerial responsibility by nominating a person as the occupier of the factory or delegating his/her own duties to another person not chosen by the Shareholders.

Types of Directors

There are 8 kinds of Directors mentioned in the 2013 acts but before discussing the types here are the minimum requirement of the number of Directors for various kinds of”

i. One Person Company:-        One Director.

ii. Private Limited Company:- Two Directors.

iii. Public Limited Company:- Three Directors.

According to the provisions of the amended act a maximum of 15 directors can be appointed in any format of Company be it OPC or Public or Private. But in special circumstances, bypassing Special Resolution a Company can increase the number of Directors beyond 15. The types of Directors are mentioned hereunder;

1. Residential Director:- Residential Directors are those Directors of the Companies who have stayed at least 182 days in India in the previous calendar year or previous financial year as per Section 149(3) of Companies Act,2013. 

2. Independent Director:-  Independent director in a company, means a director other than a Managing Director, Whole Time Director Or Nominee Director as per section 149(6) of Companies Act 2013. As per Rule 4 of Companies Act 2013, some companies have to appoint at least two(2) Independent Directors;

A} IF, Public Companies having Paid-up Share Capital-Rs.10 Crores or More;

B} IF, Public Companies having Turnover- Rs.100 Crores or More;

C} IF, Public Companies have total outstanding loans, debenture and deposits of Rs. 50 Crores or More.

3. Small Shareholders Directors:- A listed Company may have one director elected by small shareholders. May appoint upon notice of not less than 1000 Shareholders or 1/10th of the total shareholders, whichever is lower have a small shareholder director which elected form small shareholder.  

4. Women Director:- According to Section 149 (1) (a) of the 2013 act, certain categories of companies require to have at least One Woman director on the board. Such companies include any listed company and any public company-

  1. IF, they have Paid Up Capital of Rs. 100 crore or more, or
  2. IF, they have a Turnover of Rs. 300 crore or more.

5. Additional Directors: As section 161(1) of the New Act an Individual can be appointed as an Additional Directors by a company at the discretion of the existing the Directors and members of the board. 

6. Alternate Directors:-  A company May appoint if the articles confer such power on the company or a resolution is passed (if a Director is absent from India for atleast three months) as per Section 161(2) Companies Act,2013.

8. Nominee Directors:- In case of mismanagement in running the Company or any kind of Oppressive Directors who are usually appointed by certain shareholders or third parties through contracts or lending public financial institutions or banks or by the Central Government as per Companies Act,2013.

9. Shadow Director:– Shadow Directors are those directors or members not present at the Board of Company Board but has some control over the functions of the company and can easily be appointed as a member of the Board of Director based on his/her will.

Conclusion

The above analysis deals with Powers, Duties as well as liabilities of Directors as per the Companies Act 2013 and also deals with the types of Directors a company can have. The 2013 enacted Corporate Governance in the companies system. However, more than adherence to purpose its relies on adherence for survival which may fail as we have already seen. Hence, here are some suggestions for the improvement of the existing legislature;

  • It needs to be more straight forward while assuring shareholders interest. 
  • Corporate Governance needs to be implemented into the core of the system through tangible benefits to the followers and only then it will become the goal of the companies and will be followed religiously and possibly all stakeholders and shareholders of the companies will have faith in the Companies Act.

Latest Posts

Archives

Operation and Application of the Indian Penal Code

Posted on

This article is Preeti Bafna pursuing BBA LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, she has tried to explain the extent and operation of the Indian Penal Code. While understanding the Indian Penal Code 1860 it is important to know about the operation of the Indian Penal Code. The Indian Penal Code is the main criminal code of India. It extends to the whole of India except to the state of Jammu and Kashmir.

History of the Indian Penal Code

During the period of British, the Governor-General appointed the “Indian Law Commissioners” to judge the condition of the penal laws prevalent in India and suggest a comprehensive Penal Code. In the year 1834, the First Law Commission was headed by Lord Macauley for drafting the Indian Penal Code. The Draft goes through by various levels of scrutiny and was finally passed and received the Governor General’s assent on 6th October 1860 and came to force on 1st January 1862.

Extent and Operation of Indian Penal Code

Chapter 1 (Sections 1-5) of the Indian Penal Code deals with the extent and operation. According to Section 1 of the Code, the Name of the Code shall be Indian Penal Code and the same shall apply to the whole of India except Jammu and Kashmir wide Article 370 of the Constitution of India. Every person will be liable to punishment under the Indian Penal Code for every act or omission contrary to the Act and not otherwise.

Section 2 of the Act deals with the Intra Territorial Jurisdiction, i.e. offence committed in India and punished under the Code. To cite the code it must be proven that the offence was committed within the territory of India. The term “Indian Territory” has been defined to include land, water (inland water including the river, canals etc.) and the portions of the sea. 

CASE LAWS

  • In the case of State of Maharashtra vs. M.H. George (AIR 1965 SC 722), it was held that the foreigner who enters India by accepting the allegiance of Indian laws is also liable for punishment in case an offence is committed under the code and that he cannot take a plea of “ignorance of the law”. 
  • In the case, of R vs. Esop [(1836) 7 ER 203], it was held that no person can take the plea of not being aware of the criminality of the act in the country. 

In this case, the person had contended that unnatural offence was not a criminal act in his land of origin Baghdad and that he was not aware of the fact that the same was a criminal act. Such an argument was negated and the person was convicted.

  • In the case of Mobark Ali vs. State of Bombay (AIR 1957 SC 857), Pakistani citizen made a false representation while in Karachi the complainant in Bombay through letters, phone calls and telegrams which induced the complainant to part with an amount of around Rs. 5 lakhs to the agent of the accused in Bombay so that rice could be shipped from Karachi to Bombay. NO rice was supplied. The accused was caught in England and brought to Bombay where he was prosecuted and convicted under Section 420 for cheating. The Supreme Court upheld the conviction even though the person was physically present in Bombay.

The application of the Act depends upon the place where the offence is committed and not on the place of residence of the offender. So, if a person physically present 

Outside India can commit an offence within India and shall be punishable under the code.  

Section 4 of the IPC defines the application of the code to an offence committed outside India by an Indian citizen and offence committed on a ship or aircraft registered in India. The rationale behind this extension of criminal jurisdiction of the courts is based on the contention that every sovereign state can regulate the conduct of its citizen, where they might be for the time being. Clause 2 of section 4 gives Admiralty jurisdiction to the Indian Courts and the power to try offences committed on any ship or aircraft registered in India. A ship is considered to be a floating island belonging to the country whose flag it is bearing. Thus all the vessels are considered as the part of the territory of the country whose flag they fly.

 Those Officers engaged in the Government services are provided with this benefit as they are serving the nation. Treating them in the same manner as all offenders are treated under the Indian Penal Code may not be right. 

If there are situations where the person has been discharged or dismissed from his duty from the services and he is no longer involved in the service of serving the nation so that the provisions of IPC will be accordingly applicable to such person.

The introductory sections of the code specify that no person shall be discriminated based on his nationality, colour, caste, creed, and rank. If a person has committed an offence which is against the public policy, wrong against the society, he shall be punished under the provisions of the Indian Penal Code.

Exceptions to Applicability of the Act

Section 5 IPC states that the laws as well as provisions of this code which will not apply to the categories which have already existing laws to deal with the respective matters.

Section 5 of the Indian Penal Code, exempts the jurisdiction of IPC in the cases related to the officers engaged in the service of the Government of India. Some of these issues are the desertion of officers, soldiers, sailors or the airmen.

 For example that the issues related to the rebellion against the constituted government and desertions of officers are dealt with the separate laws. In case of any issue that has arisen in the Indian army, to resolve such an issue, there is separate act to solve that issue like Army Act 1950. 

Latest Posts

Archives

Meditation: A Tool For Access to Justice

Posted on

This article has been written by Alok Kumar. In this article, he has tried to explain the role of Mediation in order to achieve Justice. Along with this, he has also discussed the importance of Mediation in todays time.

Introduction

ADR I.e. alternative Dispute Resolution as it very well may be effectively comprehended by the words that ADR is an alternative technique to resolve disputes now first we need to comprehend that what is the conventional method that is “court”. In India, as we all know there are a great deal of cases pending and courts can’t resolve all the cases and the Indian judiciary is inefficient to manage the pending cases. The administration knows about this reality and that is the reason the legislature has supported for setting up in excess of a thousand fast track courts and these courts help a ton to break up and settle a large number of cases. Be that as it may, much after that the number of pending cases is expanding day by day.

To manage this sort of circumstance ADR can assume an extremely indispensable job. ADR can resolve the dispute swiftly and the decision that gets through this ADR is acknowledged by both the parties. ADR is generally acknowledged on the grounds that it settle the dispute in practice a wide range of issues like commercial, civil, family and industrial issues, and so on. (1)

Relation of ADR with Constitution & Other Acts

At the point when we talk about ADR in the Indian situation so ADR in India was founded on the Constitutional article 14 right to equality and Article 21 right to life and personal liberty. Article 39 A, DPSPs, are likewise included in the ADR for giving justice and free legal aid, Furthermore, when we talk about explicit acts that are connected with ADR so for the Arbitration and Conciliation Act 1996 and legal services authority act 1987 is there. Section 89 of CPC 1908 likewise discusses the alternative method, this section gives that opportunity to the individuals, in the event that it seems to court there exists a component of settlement outside the courts at that point court figure the particulars of a potential settlement and allude the equivalent for arbitration, conciliation, mediation and Lok Adalat. (2)

Why ADR is the need of the Time?

Since this procedure is quick thusly less time-consuming in contrast with conventional court procedures. Less expensive than litigation and saves money as well. It is adaptable and liberated from the technicalities of courts and individuals can resolve their disputes without any problem.

It is a nonbinding procedure with the exception of from few methods people are allowed to express and they can reveal the true facts identified with the case.

Types of ADR

  1. Arbitration
  2. Conciliation
  3. Negotiation
  4. Mediation
  5. Lok Adalat

But there we only understand about mediation and how mediation is a tool for access to justice.

What is the Significance of Access to Justice?

In 1999 the then chief justice of the family court Alastair Nicholson, and sue lynch wrote: “any conversation of access to Justice should be set inside a more extensive setting than that of the legal framework alone and in the time of 2009 the access to justice task force in the commonwealth attorney, journals dept. Published ‘ a key structure for access to justice in the federal civil justice framework. Access to justice is key to the standard of law and basic to the enjoyment regarding fundamental human rights, it is a basic precondition to social incorporation and a basic component of a well-working majority rule government. An effective justice system must be available in the entirety of its parts without this, the framework dangers losing its significance to, and the regard of the network it serves availability is about more than straightforward entry to land stone structure or getting legal advice. While courts are a significant part of the justice system, there are numerous circumstances courts are the last spot individuals will get the result they are searching for to determine issues.

The basic test is whether our justice system is simple, reasonable, and affordable. It is additionally significant that the framework gives viable early mediation to assist individuals with settling issues before they raise and lead to digging in a disservice. (3)

An alternative mechanism to improve value and access to justice and accomplish lower cast civil dispute resolution, in both metropolitan regions and provincial and remote communities and the expense and advantages of these.

Where parties can’t arrive at a private resolution, the civil justice system gives them different approaches to determine the dispute and mediation is one of the ways.

What is Mediation?

Mediation is one of the methods of alternative dispute resolution(ADR) accessible to parties. Mediation is basically a negotiation encouraged by an impartial third party. Unlike arbitration, which is a procedure of ADR fairly like a trial, mediation doesn’t include decisions by the impartial third party. ADR techniques can be started by the parties or might be constrained by enactment, the courts, or legally binding terms.

Is Mediation right for you?

At the point when pieties are reluctant or unable to resolve a dispute, one great option is to go to mediation. Mediation is commonly a short term, structured, task-situated, and “hands-on” process.

In meditation, the disputing parties work with an unbiased third party, the mediator, to determine their disputes. The mediator encourages the resolution of the parties’ disputes by regulating the exchange of information and the haggling procedure. The mediator enables the parties to discover shared opinions and manage unrealistic desires. The individual may likewise offer inventive arrangements and help with drafting a final assessment. The role  of the mediator is to decipher concerns, transfer information between the parties, outline issues, and characterize the issues

When Is Mediation Required?

Mediation is generally a voluntary procedure, albeit now and again resolutions, rules, or court orders may require participation in mediation. Mediation is regular in small claims courts, housing courts, family courts, and some criminal court projects and neighbourhood justice system.

Dissimilar to the litigation procedure, where a nonpartisan third party (normally a judge) imposes a decision over the issue, the parties and their mediator commonly control the mediation process – choosing when and where the mediation happens, who will be present, how the mediation will be paid for, and how the mediator will interface with the parties. (4)

What is the role of the Mediator?

Every time the last decision is taken by the parties and the mediator doesn’t decide anything and he has no power to decide the dispute between the parties and essentially put he is the guardian of the procedure and he can’t give his recommendation gave it is evaluative mediation. Be that as it may, what does the mediator do is he simply offer his input and attempt to come to a conclusion which is generally of the parties by their own points.

Procedure

  • Opening statement
  • Joint session
  • Separate session
  • Closing

In the opening statement, the mediator just gives all the information about his appointment and he proclaims that he is an unbiased individual and he has no interest in the subject matter. In the joint session, the mediator attempts to comprehend the facts and the issues of the case and he assembles each data identified with the dispute by welcoming both the parties and parties present their case and give their point of view looking into the case.

In the separate session fundamentally mediator accumulates information by taking both the parties in confidence separately and he attempts to comprehend the core of the dispute. In the wake of hearing both the parties and when he comprehends the entire dispute, he attempts to make alternatives for settlement through parties on the statement, facts which are given by the parties subsequent to being asked by the mediator.

Mediation is not quite the same as conciliation as conciliation is the formulation of opinion and conveyance of verdict. Be that as it may, in mediation, a mediator is just a facilitator and just render his opinion in the dispute and he can convey his verdict with respect to the contest anyway the conciliator plays more interventionist role and make a proposition for the dispute and this was decided in the case of  Salem Advocate Bar Association v. U.O.I; in this case, SC held that mediator is merely a facilitator while the conciliator by making proposals for a settlement of the dispute and by reformulation the conditions of the settlement assume a progressively dynamic the mediation is the procedure of structured negotiation including various stages like a joint session, introduction, separate session and so on.

How is Mediation a Tool for access to Justice?

As we already understood that what is the significance of access to justice and how it is related to ADR now let’s try to understand how it is a tool for access to Justice.

At the point when parties can’t arrive at a private resolution then the civil justice system gives them different approaches to determine the contest mediation at that point turns into the most embraced structure for this since it is the nonbinding decision by the mediator. Parties can without much of a stretch access the Justice through their own particular manner by giving the fact to the mediator and thus resolve the dispute, access to Justice implies the capacity to get Justice by any individual and the most ordinary method for getting justice is through a court of law yet nowadays courts are overburdened by loads of cases at the principal example court alludes the parties to determine the dispute through mediation.

As has just been expressed that a mediator is a nonpartisan third party that goes about as a guardian of the procedure without mediating in the topic makes it a method for settling disputes agreeably and it additionally is a swift and adaptable method for resolving disputes with sets aside both money and time. Since mediation isn’t a procedure to be recorded for the public record their for it likewise spares the generosity of the parties from being discoloured. Every one of these highlights of mediation makes it the fittest method for resolving disputes between parties in today’s time when the courts are troubled with cases. (5)

CONCLUSION

Mediation is one of a few ways to deal with resolving disputes It contrasts from the antagonistic resolution process by temperance of its simplicity, familiarity, flexibility, and economy. Mediation gives the chance to parties to concur terms and resolve issues without anyone else, without the requirement for legal representation or court hearings.

Why mediation is important and how it is a tool for access to justice, following are some of the benefits which typically associated with mediation:

  1. Recognition
  2. Empowerment
  3. Speedy trial
  4. Economical
  5. Confidentiality
  6. Quality of settlement
  7. Avoid bad outcomes

The prior is only a portion of the convincing reasons to mediate disputes. Besides, there is only here and there any genuine drawback to mediation. While some may hesitate “to lay it all out there” in mediation, in this period of disclosure driven litigation, the old “trial by ambush” long stretches of civil litigation are progressively turning into a relic of times gone by. Mediation works not just on the grounds that it centres around the parties, own interests, and agendas. yet in addition since it gives the chance to parties to move beyond dispute proficiently and graph their own future.

Latest Posts

CONTINGENT CONTRACTS: INDEMNITY AND GUARANTEE

Posted on

This article has been written by Aaditya Kapoor, a law student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light upon contingent contracts, with special emphasis on two of its types: indemnity and guarantee.

According to Section-31 of the Indian Contract Act, the term ‘Contingent Contract’ is defined as a contract that requires action or abstinence from action, depending upon occurrence or non-occurrence of some event contingent to said contract. Simply put, contingent contracts are those where the Promiser only fulfils his obligation when certain conditions are met. While a contingent contract is based on an absolute commitment to do something in the event of a particular future occurrence, the agreement is conditional in the sense that the party is only liable to fulfil if the event happens (or does not occur).

This article shall shed light on two major types of Contingent Contracts: Indemnity and Guarantee.

CONTRACT OF INDEMNITY

An indemnity contract is one of the most significant types of trade contracts. Many businesses depend on such contracts, such as the insurance industry. This is because such contracts are of a sort. We ultimately allow companies to account for their losses, and therefore increased their risks. That is extremely important for both small and large enterprises. An insurance deal ultimately includes one party agreeing to make up its damages to the other. Such losses may occur either because of the other party’s actions or someone else’s. To compensate for something basically implies to make a loss fine. In other terms, one party must reimburse the other in the event that it experiences any damages. For instance, A promises to deliver some goods to B every month for Rs 2,000. C steps in and offers compensation for the damages of B if A fails to produce the product in this way. That is how B and C enter into mutual indemnity agreements.
An insurance policy is somewhat close to that of benefit contracts. The insurer here agrees to indemnify the insured for his damages. He gets appreciation in return in the form of a premium. However, this sort of exchange is not exclusively regulated by the Contract Act. This is because there are unique requirements for insurance contracts in the Insurance Act and other similar rules.

ESSENTIAL ELEMENTS OF INDEMNITY CONTRACT

1. Parties to Contract: There must be two parties, namely, the promisor or compensator, and the promisor or compensator.

2. Protection of Loss: An indemnity contract is concluded with a view to protecting the promisee from the loss. The loss may be caused by the Promiser’s or any other person’s actions.

3. Express/Implied Clause: The indemnity contract either be explicit (i.e. worded or written) or implied (i.e. inferred from the actions of the parties or the circumstances of the particular case).

4. Essentials of Legal Contract: Special kind of contract is an indemnity contract. These are similar to the principles of general contract law found in Sections 1 to 75 of the Indian Contract Act, 1872 and therefore, it must include all the basic elements of a legal contract.

RIGHTS OF INDEMNITY HOLDER

Pursuant to Section 125 of the Indian Contract Act, 1872, the following rights are available to the Promisee / Indemnified / Indemnified Holder against the Promisor / Indemnifier, given that he has behaved within the limits of his control.

1. Right to Recover Damages Paid in an Action [Section 125(1)]: An indemnity-holder has the right to recover from the indemnifier any damages which he might be forced to pay in any action in respect of any matter to which the contract of indemnity relates.
RIGHT TO RECOVER Expenses INCURRED IN DEFENDING A SUIT [SECTION 125(2)]: an indemnity holder shall be entitled to recover from the indemnifier all expenses which he might be liable to pay in any such suit if, in bringing it in or defending it, he did not contravene the promiser ‘s orders and behaved as it would have been wise for him to act in the absence of any insurance deal.


2. Right to Recover Amount Paid under Compromise [Section 125(3)]: An indemnity holder shall also be entitled to recover from the indemnifier all amounts which he may have paid under any compromise of any such action, provided that the compromise was not contrary to the promiser’s orders and was one which the promised holder would have been prudent in the absence of any compensation contract.

CONTRACT OF GUARANTEE

The Contract Act also governs warranty contracts aside from indemnity contracts. Those contracts may seem similar to contracts for compensation but there are some differences between them. One party issues a guarantee contract to fulfil a third party commitment or discharge a third party liability. This will occur in case the third party refuses to meet its commitments and defaults. The burden of discharging the debt would, therefore, fall first on the defaulting third party.
The person granting the guarantee is the Surety. On the other hand, the principal debtor is the individual the Surety gives the guarantee for. Likewise, the person to whom he grants such a guarantee is the Creditor.

Example: A delivers products to B on C which guarantees payment from B to A. That means C would be liable to pay if B fails to pay. This is a “Guarantee Contract.” Here B is the principal debtor, C the guarantor, and A the creditor.

ESSENTIALS OF CONTRACT OF GUARANTEE

1. Agreement between all the parties: All three parties, namely the principal debtor, the creditor and the surety, must agree to enter into such a contract.

2. Liability: The liability of the surety is secondary in a guaranteed contract, i.e. the creditor must first proceed against the debtor and if the latter fails to fulfil his promise, then only he can proceed against the surety.

3. There’s a Debt: A guarantee contract pre-assumes the existence of a legal enforceable liability. If there is no such liability, then there can be no guarantee contract. So where the debt that is sought to be secured is already time-barred or invalid, there is no liability for the surety.

4. Consideration: Between the creditor and the guarantor there must be consideration to make the contract enforceable. The argument, too, must be true. In a guaranteed contract, the consideration that the principal debtor receives is taken as being the appropriate consideration for the protection.

5. Essentials of a Valid Contract: It must have all the essential elements of a valid contract, such as offer and acceptance, intention to establish a legal relationship, contracting capacity, genuine and free consent, legal object, legal consideration, certainty and possibility of performance and legal formality.

6. No Concealment of Facts: The creditor should disclose to the security the facts which are likely to affect the liability of the guarantor. The guarantee obtained from disguising such facts is invalid. Thus, if the borrower obtains it by concealing relevant evidence, the guarantee is null.

RIGHTS OF SURETY

1. Rights vs. Creditor: A borrower is liable for any protection that the creditor has against the principal debtor as per section-141. This holds true even if the security was unaware of the existence of such security at the time of entering into the guarantee contract.

2. Rights against the Principal Debtor: Once the surety discharges the debt, he obtains the rights of a creditor against the principal debtor. Now, due to the main debtor’s default, he can sue the principal debtor for the amount of debt he pays to the creditor.

3. Surety’s rights against the co-guarantees: When a surety pays the creditor more than its share, he has the right of co-guarantees to contribute, who are equally liable to pay.

Latest Posts

Bhim Singh v. State of J. & K., AIR 1986 S.C. 494

Posted on

This article has been written by Deepika, pursuing BA-LLB at IIMT & School of Law, GGSIPU, Delhi. In this article, she has analyzed Bhim Singh v. State of J&K, a famous case of the legal maxim ‘injuria sine damno’.

Introduction

In order to be successful in an action for tort, the plaintiff has to prove that, some legal damage has been caused to him. Unless there has been a violation of a legal right, there can be no action under the law of torts. If there has been a violation of legal right, the same is actionable even if as a consequence thereof, the plaintiff has suffered any loss or not. This is expressed by the maxim “Injuria sine damno”.  This case Bhim Singh v. State of J&k  is a very important case of this maxim.

Bench

O C Reddy, V Khalid

Date of judgement

22 November 1985

Issues

  • Whether monetary compensation was a suitable remedy or not?
  • Whether the detention of the M. L. A was valid or not?

Articles involved

Article 21, Article 22(2), and Article 32

Maxim involved

Injuria sine damno

Facts of the case

Mr Bhim Singh an MLA of Jammu and Kashmir was arrested and detained in police custody and was deliberately prevented from attending the sessions of the legislative assembly to be held on 11th September 1985. He was arrested on an intervening night between 9th and 10th September 1985 by the station house officer of Quiz Kunda police station, on the allegation that a case under section 153A of Ranbir Penal Code was registered against him for delivering an inflammatory speech at the public meeting held near parade ground, Jammu on 8th September 1985. Earlier, on August 17, 1985, the opening day of the budget session of the legislative assembly, Bhim Singh was suspended from the assembly. When he questioned the suspension in the High court of Jammu & Kashmir, the order of suspension was stayed by the High court. He was arrested on the intervening night of 9th and 10th, when he was proceeding from Jammu to Srinagar. September He had to attend sessions of the legislative assembly on 11th September, where he had to cast a crucial vote. He couldn’t cast vote because of the detention, but the candidate for him he wanted to vote won the election.  Although there was no actual loss to the plaintiff there was violation of his legal right. Also, he has not produced before the Magistrate till 13th September, while he should have been produced before the magistrate within 24 hours. As his wife didn’t get any information of him since last few days, she filed a writ of Habeas Corpus before the Supreme Court.

Judgement

On the inquiry of the Supreme Court, it was found that Mr Bhim Singh was illegally detained by the police personnel, aided either by collision or by a casual attitude with the Magistrate, who ordered for remand without production of the arrested person before him.  The Supreme court judges O. Chinnappa  Reddy criticized the conduct of the magistrate and sub judge, stating that they have no concern for the subject out of either casual behaviour or worse than they had potentially colluded with the police who had deliberately acted in malafide.  The Court pointed out that the Magistrate acted without any sense of responsibility or genuine concern for the personal liberty and the police arrested the imprisoned with mischievous and malicious intent and it was certainly was a gross violation of the constitutional right of the accused person under article 21 and 22(2).  There was also a violation of his Constitutional right to attend the assembly session. The court in this landmark judgement of tort law in India, by exercising its power to award compensation under Article 32(2), directed the state to pay Rs. 50000 to Bhim Singh a compensation to him for violation of his constitutional right by way of exemplary cost.

In the normal cases of injuria sine damno, where the plaintiff had suffered no harm and yet the wrongful act is actionable, generally nominal damages are awarded. If, however, the court feels that the violation of a legal right is owing to mischievous and malicious act, as had happened in this case, the court may grant exemplary damages.

Conclusion

This case was a landmark case which evolved the tort law in India. This case revolves around wrongful confinement and injuria sine damnum. The court gave very appreciable decision in this case, as there no other than the one adopted by court to compensate the plaintiff. In this court has also narrowed the space between state and citizen. By directing the state to pay compensation the Supreme court established the following principle that state and citizen are at an equal position in the eyes of law. This decision also shows the weakening of the original doctrine of sovereign immunity and the changing concept of state. In this case, the Supreme court recognized the liability of the state to pay compensation, when Rights to life and personal liberty as guaranteed under Article 21 of the constitution has been violated by the officials of the state.

Latest Posts

Parliamentary Privileges

Posted on

This article has been written by Anurag Maharaj, pursuing Bachelor of laws at Lloyd Law School, Greater Noida. In this article, he has tried to define the “Parliamentary privileges”.

Introduction

Parliamentary privilege refers to the rights and immunities that Parliament as an entity and parliamentarians enjoys in their individual capacity, without which they can not perform their duties as delegated to them by the Constitution. Both parliamentary houses have the privileges to operate effectively and efficiently, and to carry out their duties without interruption or intervention of any sort. Collectively, each house and its representatives are granted the privileges individually. Therefore, it can be inferred that the term privileges refer to the particular rights and advantages that parliamentary members enjoy over the Indian citizen. The Parliamentary privileges are laid down in Article 105 of the Indian Constitution and in Article 194 of the State legislatures.

Article-105: Parliament of India Privileges

Powers, privileges, etc., of parliamentary houses and of members and committees:-

1.Freedom of speech:- There shall be freedom of speech in Parliament, subject to the provisions of the Constitution and to the laws and standing orders regulating Parliament’s procedure.

2. In certain respects, the rights, privileges and immunities of each House of Parliament and of the members and committees of each House shall, from time to time, be decided by statute by Parliament and, until such time as this House and its members and committees have been established, immediately before Section 15 of the Constitution comes into force ( 44th amendment ) Act 1978.

3. No Member of Parliament shall be liable in any court for what he or she has said or voted in Parliament or any of its committees and no person shall be liable for any report, text, vote or proceedings to be published by or under the authority of any House of Parliament.

4. The provisions of clauses (1 ), ( 2) and (3) shall extend to persons who, by virtue of this Constitution, have the right to speak in, and otherwise participate in, the proceedings of, a House of Parliament or any of its committees as they relate to Members of Parliament.

Article-194: State Legislatures Privileges

Under Article 194, the same provisions are stated, in that members of a state legislature are referred instead of parliamentary members.

1. Freedom of speech:-  The Legislature of each State shall have freedom of speech, subject to the provisions of this Constitution and to the Rules and Standing Orders governing the proceedings of the Legislature.

2. No member of the Legislature of a State shall be liable in any court for that which he has said or voted in the Legislature or any committee thereof, and no person shall be liable for the publication by or under the authority of the House of such a Legislature of any article, text, vote or proceeding.

3. The powers, privileges and immunities of the House of the Legislature of the State and of the members and committees of the House of that Legislature shall be those defined by law from time to time and, until such time as this is specified, those of that House and of its members and committees immediately before the entry into force of Section 26 of the Constitution Act on Amendment No 44, 1978.

4. The provisions of clauses (1 ), ( 2) and (3) shall extend in respect of individuals who, by virtue of this Constitution, have the right to speak in, and otherwise engage in, the proceedings of a House of the Legislature of a State or any of its committees as they relate to members of that legislature.

Case law:- P.V. NARSIMHA STATE v. RAO (1998)

The facts of the case are – some of the bribes that the MP has received to vote against the no-confidence motion against Prime Minister P.V. Narsimha Rao. He was charged under the IPC and Prevention of Corruption Act on the grounds that, while serving as the Prime Minister, he bribed some MPs to vote against the motion of no-confidence. It was held by the majority of the Court that, according to Article 105(2), parliamentarians would be granted immunity and, thus, the MP’s bribe conduct would be granted immunity in spite of everything they say or any vote they give in Parliament. The Court further clarified that here the word “everything” is to be understood as a broader concept. In a wider context, the Court viewed the word “anything” and did not convict P.V. Rao Narsimha.

Other privileges:-

(1) Freedom from arrest:- According to this privilege, during a period of 40 days before and 40 days after the house session[viii], no member of parliament or state legislature shall be arrested or imprisoned in civil process. If a member is arrested during this time, he shall be released for free attendance at the session. This right does not apply to arrests or incarceration on the grounds of criminal proceedings or court contempt or preventive detention.

2) Excluding strangers:- In the past, the right to exclude strangers or non-members and to hold secret sessions exercised. The goal is to exclude the risk of Members being intimidated. The strangers may attempt to interfere in the debate from galleries.

3. Right to publish debates and proceedings:- Although Parliament does not prohibit the press from publishing its proceedings by convention, the House is technically entitled to prohibit such publication. Also, although a Member has parliamentary privilege of freedom of expression, he has no right to publish it outside Parliament. Any breaching rule can be held liable for any libellous matter which it may contain under the rules of the common law.

4. Right to regulate House internal affairs:- The House has the right to regulate its affairs within it. A House member is free to say what he wants subject only to the House’s or the committee concerned ‘s internal discipline. The Governor is empowered to convene the State Legislative Assembly Session. But he has no legislative power to direct the Speaker of an Assembly on how to handle the House’s proceedings.

5. The right to punish for Contempt of the House:- Each house of the legislature has the right to punish its members or non-members for contempt or infringement of the house’s privilege. In India, it has been established that a house can punish not only for the contempt of the present but also for the contempt of the past.

Conclusion

Parliamentary privilege refers to the rights and immunities that Parliament as an entity and parliamentarians enjoys in their individual capacity, without which they can not perform their duties as delegated to them by the Constitution. The privileged rights are freedom of speech, publication of the report, excluding strangers, rights to publish debates and proceedings, right to regulate House internal affairs, the right to punish for the contempt of the house etc.

Latest Posts

Private Defence Under Tort

Posted on

This article has been written by Sharat Gopal, pursuing BA-LLB at Delhi Metropolitan Education, GGSIPU. In this article, he has discussed private defence and its essential under the law of tort.

Introduction

Tort

According to Salmon, a tort is a civil wrong for which the remedy is common law action for the unliquidated( an amount that cannot be foreseen by a fixed formula) damages caused to the person. But this civil wrong is not exclusively based on breach of contract or breach of trust or other merely equitable obligations.   

On the other hand, Winfield states that the tortious liability arise from the breach of duty which is primarily fixed by law. And the duty towards persons is general and the breach of this duty is redressable by an action for unliquidated damages.

Both these views are contrary to each other. Salmond’s definition is accepted more by people as it is more practical in nature. On the other hand, Winfield’s definition is more of theoretical in nature.   

Law of tort is not codified in India. It was adopted from the English Common Law. In India, unlike other countries, moral wrong is not punishable. In countries like Canada, who follow common law, have moral value laws know as Samaritan Law. In these countries moral wrong is punishable. Eg. Not giving water to a thirsty man, when you are carrying water with you, is morally wrong. This is punishable is countries like Canada, but not in India.

General defences

Every person in the world has a right to protect himself from any attack or harm, this will cause him injury. The same applies to all laws and also to tort law. When the person is accused of an act, he has the right to defend himself from the claim that the plaintiff has brought against him. There is a list of general defences that are accepted in the law of tort. These defences are- 

  • Volenti non-fit injuria,
  • Statutory Authority,
  • Plaintiff the wrongdoer,
  • Necessity,
  • Inevitable accident,
  • Act of God,
  • Mistake, and
  • Private Defence.

Private defence

In general defences, Private defence is one the most used defence. It is defence provided not just for the body of the person but also for the property. Law of private defence can be traced back to early civilization where every person had a right to defend his/her life and property. As history abounds with instances where communities or tribes had exercised their right of private defence to their life and property. Also in two worlds wars which was witnessed by the whole world, was a conflict to protect their land, water or resources from intervention by countries. Private Defence is a natural right to protect oneself against any violent act of others to his life or property.

Now it can be understood as that if ever a man in threat or in terror of present death or harm, get compelled to do any act which is against the law, then he will be totally excused from the act. As no one or no law shall expect a man to abandon his life for the preservation of law. But that act must be justified as it was preceded with an imminent danger.

Hence, the law permits the use of a reasonable force against an imminent danger to protect one’s person and property. And persons that act is excused to the extent of reasonable force that was required to avoid that harm.

To use private defence there requires main conditions to be fulfilled i.e. –

  1. Imminent threat–  There should be an imminent or instant danger to the life of a person or loss to property. For eg, A saw B trying to rape C. Seeing the immediate danger to life of C,  A hit on B’s head with a stone present there. Here A used private defence for the danger which was present at the time of use of private defence. Also, this can be understood using the case of Morris Vs. Nugent, where A’s dog attacked B and bite him but when after attacking dog stepped back and started running away, B stood and shot the dog. In this case, court held that if B would have shot the dog when it was attacking him then he could have successfully claimed the defence, but as according to the facts of the case he shot the dog when there was no imminent or immediate danger present and hence won’t get a defence.
  2. Proportional force – According to this,  the force used against the danger to the life of a person or to a property must be proportionate to the actual danger. The force used must be reasonable to avoid that harm and must not extend the dangerous act. For eg. If a theft enter one’s house but after getting caught he threat the person with a knife standing far away from him and after that the owner of the house getting angry shot him dead. Here the force used is not reasonable as the owner must have shot him in his cleg or somewhere to just injure him, but killing the person where there was no just grave danger to life, the private defence won’t apply.  Hence, if A hit on B’s head, B cannot justify his defence by drawing sword and cutting of the A’s head.

Case law:-

In the case of Bird V. Holbrook (1823) 4 Bing. 628, 130 E.R. 91, Holbrook was the defendant who installed spring-gun trap in his garden to catch an intruder, who had been stealing from his garden for long. He did not post any warning sign or board. Now, Bird who was the petitioner entered Holbrook’s garden chasing his escaped bird and got trapped and gain severe damages to his knee. Here the court held that defendants intention here was not to catch the intruder but to cause harm to him as he also didn’t post any warning sign. Hence, he was liable for his actions and didn’t get any defence.

Conclusion

The defence of private defence is more like a right to protect ones life and property. It is a natural right which has been recognised not just by the law of tort but has also been provided as a defence in criminal law under IPC,1860.  Though this defence can easily be misused and can also be used as an excuse for the commission of a crime. To avoid this the essentials of private defence i.e., Reasonable threat, proportionate force and time to recourse must be satisfied.

Latest Posts

Doctrine of Harmonious Construction

Posted on

This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. This article focuses on the rule of harmonious construction and landmark cases related to it.

INTRODUCTION

Is it law really plays an important role in society? Every individual living in society must understand the importance of law. Law is that powerful tool which keeps a society peaceful and prevents conflicts between people by regulating their behaviour. The laws are enacted to regulate the society are drafted by Legal Experts and it is well anticipated that laws enacted will not be specific and contain some ambiguity.  Judiciary plays an important role to remove and resolving these inconsistencies.

 We all are well known aware that there are three wings of the government i.e. legislature, executive and judiciary. The role of interpretation of statues comes into play and is of utmost importance for the Judiciary to render justice correctly by interpreting the statues in the way in which the society demands.

Doctrines are” a rule, principle, theory or tenet of the law”. One of the doctrines is Harmonious Construction it is one of the principles of the interpretation of statutes. They follow the principle of a statute shall be read as a whole and should confirm benefits to the people.

Doctrine of Harmonious Construction

According to Salmond, “by construction is meant, the process by which the court seeks to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed.”

The Constitution of India makes a two-fold distribution of legislative powers:

  1. With respect to the territory;
  2. With respect to the subject matter.

Article 245, Constitution of India is related to the territorial jurisdiction and Art. 246 is related to the subject matter of lawmaking power of Parliament and State Legislature.

The list of legislation- Union list, state list and concurrent list enshrined under schedule 7 of Indian Constitution. The Union Government has an exclusive power to make laws on the subject mentioned in the Union List i.e. of national importance. The State Government has the power to make laws in subjects mentioned in the State List i.e. of local importance and for the subjects mentioned in the Concurrent List both Central and State government has exclusive power. But in the case conflicts arises Central law will prevail.

In a statue, when there are two provisions which are in apparent conflict with each other, they should be interpreted such that effect can be given to both. When there is a conflict between two or more statues or two or more parts of the statue then the doctrine of the harmonious construction needs to be adopted.

 According to this rule, a statute should be read as a whole and one provision of the act should be constructed with the reference to other provision in the same Act so as to make a consistent enactment of the whole statue and to remove inconsistency or repugnancy.

It helps to bring harmony between the list referred in Schedule 7, Constitution of India.

In the case when it is impossible for harmonization between statues or between two or more provisions of the statues, then the court’s decision regarding the provision shall prevail.

Landmark Case Laws: Doctrine of Harmonious Construction

Principles of rules of Harmonious Construction: CIT v. HINDUSTAN BULK CARRIERS (2003)3SCC57

In this landmark case, the Apex Court laid down five principles of rule of harmonious construction:

1.Courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them 

2. The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences. 

3. When it is impossible to completely reconcile the differences in contradictory provisions, the court must interpret them in such a way so that effect is given both the provisions as much as possible.

4. Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction. 

5. To harmonize is not to destroy any statutory provision or to render it fruitless.

Raj Krishan v Binod, AIR 1954

In this case, two provisions of Representation of People Act, 1951, which were in apparent conflict were brought before the court.  Section 33 (2) says that a government servant can nominate or a second a candidate in the election but section 123(8) says that a government servant cannot assist any candidate in the election except by casting his vote. The Supreme Court observed that both these provisions should be harmoniously interpreted and held that a government servant was entitled to nominate or a second candidate seeking election in State Legislative Assembly.

Venkataramana Devaru v. State of Mysore, AIR 1997 SC1006

 In this case, Apex Court applied the doctrine of harmonious construction in resolving a conflict between article 25(2)(b) and Article 26(b) of the Constitution of India and it was held that the right of every religious denomination or any sections thereof to manages its own affairs in matters to religion [art. 25)(b)] is subject to a law made by State providing for social welfare and reform or throwing open of Hindu religious institution of  public character to all classes and section of Hindus.

Conclusion

As there are three organs of the government legislature makes the laws; the executive implements the law and judiciary interpret the laws. There are three lists i.e. Union, State and concurrent list. As statues are drafted by legislature there is every possibility of the situation of inconsistency, ambiguity, repugnancy etc. In such situations, the rules of interpretation of statutes come into play and the provisions are construed so as to give maximum effect to them and to render justice to the situation at hand. The principle of harmonious construction plays a very important role in interpreting the statues and is used in an abundance of cases. It is a thumb rule to the interpretation of any statue. The judiciary should interpret the statues properly and rendered justice to the citizens of the country.

Latest Posts

Archives