Month: November 2022

Assault

In common law, assault is a tort, an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. When the defendant creates his act by an apprehension in the mind of the plaintiff that he is going to commit battery against the plaintiff, the wrong of assault is completed. The wrong consists of an attempt to do harm rather than the harm being caused thereby. Assault charges must include conduct that is offensive which is offensive or causes another person to the fear of their safety. This clearly means that one can be guilty of assault even if he/she did not physically harm the victim. In the case of R. Vs. S.George 1960 S.C.R. 871, the pointing of a loaded gun to another is an assault. If the pistol is not loaded, then even it may be an assault, if pointed at such a distance that it may cause injury. if a person advances the manner of threatening to use force , then there is assault. This was decided in the case of Stephens Vs Myers (1830) 172 ER 735

Elements of Assault

If one or more elements have not been satisfied then It can be a defense to an assault charge. Elements of the crime of assault are:

An act or conduct intended to create: To prove a criminal attack, the defendants’ behavior must be motivated to create a situation of fear or danger in the victim’s mind. Accident acts do not include allegations of assault.

A reasonable apprehension: Further, the victim must reasonably believe that the defendant’s conduct will harm or humiliate him. The victim must understand the defendant’s potentially harmful or offensive acts.

Of imminent harm: The victim’s fear must be a direct response to a threat that is imminent. Future threats, such as “I will beat you tomorrow”, will not result in assault charges. In addition, there must be some kind of perceived physical threat to the victim in the loss; For this reason, words by themselves generally do not constitute an attack.

It is believed that the defendant’s actions would cause physical danger or abusive behaviour to the victim. Thus, the pretence of kicking or punching the victim may be an attack, as will attempt to spit on the victim (aggressive behaviour).

All of the above elements must be present and the evidence must be supported with evidence if found guilty for the attack.

It can be difficult to prove whether the defendant actually intended the attack. Similarly, judges often spend a lot of time determining whether a defendant’s actions are considered harmful or abusive. In determining this, they will consider what an average person may perceive as harmful or aggressive.

Difference between Assault and Battery

	Assault	Battery
Definition	Assault is the attempt to commit battery.	Battery includes intentional application of force to another person without any lawful justification.
Important aspect	Threat of violence is enough for assault. No physical contact is necessary.	Physical contact is needed.
Principle	Create reasonable apprehension in the plaintiff’s mind that immediate force will also be used.	· There should be use of force.· The same should be, without any lawful justification.
Objective	To threaten a person.	To cause harm.
Nature	Not necessarily physical.	Must be physical.

Difference between Criminal and Civil Assault

	Civil assault	Criminal assault
Meaning	In civil assault, to sue the respondent for the full extent of his loss, including lost earnings and pain and suffering of the past and future.	If the respondent is convicted, he may be imprisoned, and may also have to pay a fine and reinstatement. But the fine would be paid to the government, and restitution would most likely cover only the medical bills, not your non-economic losses such as pain and suffering stemming from the incident.
Procedure Punishment	In civil assault case, a District Attorney is not involved. The matter is brought by the plaintiff. The plaintiff has more control in the case of civil assault. A win for the District Attorney, results in jail term, a fine, or both.	After an attack, the victim should report to the police. The police will then make an arrest, take action on the alleged attacker and refer the case to the District Attorney. When the plaintiff wins, the defendant will not go to jail, but will have to pay financial compensation.

Legal defenses on charges of Assault

As with other types of criminal charges, there may be some defenses to assault charges. This will depend on each individual case, as well as other factors such as state law. Faults commonly charged with assault charges include:

Self-defense: This could be a defense if the defendant was acting out of self-defense. They should only use the amount or display of force that is appropriate in the situation and in proportion to the force being used against them.
Intoxication: In some cases, intoxication can be a legal defense, especially in cases where intoxication affects a person’s ability to act intentionally.
Coercion: This may be a defense if the defendant was forced to attack under threat of harm (for example, if they are being held at gunpoint and for assault at the behest of someone).
Lack of proof / proof: As stated above, if the elements of proof are not found or supported with the correct evidence, it can serve as a legal defense.

Many other types of avoidance may exist depending on the circumstances.

Punishment for Assault

Punishment for assault is provided in Section 352 of the Indian Penal Code. Whoever commits the offence of assault under section 351 of IPC shall be punished under section 352 of IPC, with the imprisonment of either description for a term that may extend to 3 months, or with fine that may extend rupees 500, or both.

Exception: As a general rule, any offence committed under grave and sudden provocation is a defence under IPC. However, assault made under grave and sudden provocation is not a defence. Thus, whoever commits assault out of grave and sudden provocation will be liable for the same punishment as generally provided for the offence.

Fagan Vs. Commissioner of police for the Metropolis [1969] 1 QB 439

Fagan was sitting in his car when he was approached by a police officer who asked him to take the vehicle. Fagan did so, overturned his car and rolled over a police officer’s leg. The officer forcefully asked him to remove the car from his leg, to which Fagan swore him and refused to take the vehicle and shut down the engine. Fagan was convicted of assaulting a police officer in the execution of his duty. Fagan later appealed the decision. The court held that, Although assault is an independent crime and is to be treated as such, for practical purposes today, assault is generally synonymous with battery. On this basis, it was held that Fagan’s crime was not the refusal to move the car but that having driven on to the foot of the officer and decided not to cease the act, he had established a continual act of battery. This meant that actus Reus and mens rea were present and as such, an assault was committed. Fagan’s conviction was upheld.

R.V.Contanza

A man was convicted of assault occasioning actual bodily harm of a female ex-colleague. For a period of almost two years, the man followed the women home from work, made numerous silent phone calls, wrote her over 800 letters, drove past her house, visited her house without consent, and wrote offensive words on her house’s door three times. Following these actions, she received two additional letters with threatening language. She was soon diagnosed by a doctor as suffering from clinical depression and anxiety due to apprehended fear caused by the man’s actions and letters. A man was convicted of assault occasioning actual bodily harm of a female ex-colleague. For a period of almost two years, the man followed the women home from work, made numerous silent phone calls, wrote her over 800 letters, drove past her house, visited her house without consent, and wrote offensive words on her house’s door three times. Following these actions, she received two additional letters with threatening language. She was soon diagnosed by a doctor as suffering from clinical depression and anxiety due to apprehended fear caused by the man’s actions and letters.

Muneshwar Bux Singh vs State Through Raghunandan Prasad AIR 1956 All 199: In this case, the court held that a person shall not be held guilty of assault if his gestures or preparation do not cause apprehension of harm to another person.

Remedies

Action for damages- Whenever the plaintiff has been wrongfully detained, he can always bring an action to claim damages. Compensation may be claimed not only for injury to the liberty but also for disgrace and humiliation which may be caused thereby. According to Mc Gorge on damages, the details of how the damages worked in false imprisonment are few: generally, it is not a pecuniary loss or of dignity and is left to the jury and their discretion. The principle heads for damage would appear to be the injury to liberty, i.e., the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e., the dignity, mental suffering, disgrace and humiliation with any attendant loss of social status.
Self help– This is the remedy which is available to a person who while he is still under detention instead of waiting for legal action and procuring his release thereby.
Habeas Corpus– It is speedier remedy for procuring the release of a person who is wrongfully detained. Such a writ may be issued either by the Supreme Court under Article 32 or by a High Court under Article 226 of Indian Constitution. By this writ person detaining is required to produce the detained person before the court and justify the detention. If the court finds the detention is without any just or reasonable ground, it will order that the person detained should be immediately released.

It is just possible that the person wrongfully detained may have been set free by the time the writ of habeas corpus is disposed off. The court hearing the petition may grant compensation as ancillary relief in such cases . in the case of Rudal Shah Vs State of Bihar (1983) 4 SCC 141. and Bhim Singh Vs. State of J& K, AIR 1986 SC 494 the Supreme Court granted such compensation in writs of habeas corpus.

Conclusion

Assault is an attempted offense, the law is intended to prevent possible battery by punishing conduct that comes in a dangerous way to obtain battery. As with most attempted crimes, a clear line cannot be drawn between a criminal attack and conduct that is merely an attack preparation. There should be an intention to cause harm, but it is not enough if it creates the possibility of damage or the danger of battery in a distorted future. Instead, the intent must be taken out of imminent danger, some overt act that endangers the battery. Thus, words or intentions do not constitute mere attack.

FIR (First Information Report)

First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report. The information given to the Police Officer for registration of a case must be authentic. It should not be gossip but should be traced to an individual who should be responsible for imparting information. It may be hearsay but the person in possession of hearsay should mention the source of information and take responsibility for it. An irresponsible rumour should not result in registration of F.I.R.

An information given under sub-section (1) of section 154 Cr.P.C is commonly known as first information report though this term is not used in the Criminal Procedure Code (in short Cr.P.C). It is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 Cr.P.C, as the case may be, and forwarding of a police report under section 173 Cr.P.C. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 Cr.P.C. Apart from a vague information by a phone call, the in formation first entered in the station house diary, kept for this purpose, by a police officer-in-charge of a police station is the first information report- FIR postulated by section 154 Cr.P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer

or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 Cr.P.C. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C.Take a case where an FIR mentions cognizable offence under section 307 or 326 I.P.C and the investigating agency learn during the investigation or receive fresh information that the victim died, no fresh FIR under section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt.

Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected, it does not require filing of fresh FIR against H the real offender who can be arraigned in the report under section 173(2) or 173(8) of Cr.P.C, as the case may be

Purpose and Object :

The purpose of registration of FIR is manifold that is to say

(1) to reduce the substance of information disclosing commission of a cognizable offence, if given orally,into writing.

(2) If given in writing to have it signed by the complainant.

(3) To maintain record of receipt of information as regards commission of cognizable offences.

(4) To initiate investigation on receipt of information as regards commission of cognizable offence.

(5) To inform Magistrate forthwith of the factum of the information received.

what is the power of FIR

The police can register FIRs only for cognizable offences — where the police have the power to arrest without a warrant. Examples of cognizable offences include murder, rape, theft, attack, etc

What is the Rule of FIR

Anyone who knows about the commission of a cognisable offence, including police officers, can file an FIR. As described in law: When information about the commission of a cognisable offence is given orally, the police must write it down.

What is the process after FIR?

Once an FIR has been filed the police are legally bound to start investigating the case. The process of investigation includes, but is not limited to, collecting evidence, questioning witnesses, inspecting the crime scene, forensic testing, recording statements and so on.

FIR Quashing on the basis of Compromise:

The High Court can Quash the FIR at any stage on the basis of compromise. The compromise can be entered into by the Complainant and the accused. In such case, a joint petition under section 482 of CR.P.C shall be filed by both the parties.

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

Why FIR is filed?

An FIR can be filed by anyone who possesses information about a cognizable crime being committed. Regardless of the severity of the crime, the police officer in charge must file an FIR as long as it is a cognizable offence.

for giving false information:

Punishment for giving false information to the police is dealt with by sections 182, 203 & 211 of I.PC. Even if such information is not reduced to writing under Section 154(1) of Cr.P.C, the person giving the false information may nevertheless be punished for preferring a false charge under section 211 of I.P.C. A police officer refusing to enter in the diary a report made to him about the commission of an offence, and instead making an entry totally different from the information given, would be guilty under Sections 166 A and 177 .

Eligibility for filing FIR

There is no such hard and fast rule as to the eligibility of the person filing the FIR. Anyone can give information about the commission of a cognizable offense, and it is not at all necessary that the aggrieved of such an offense can only lodge the FIR. It can even be lodged by the Police officer who comes to know about the commission of a cognizable offense. However, it can be summed up as below:

You can lodge an FIR if you are the victim of a cognizable offense,
If you have information about the commission of a cognizable offense that should not be hearsay information, and
If you have witnessed the commission of a cognizable offense.

Therefore, filing an FIR is very important for a case related to a cognizable offense since it sets the criminal justice system in motion. The Police take up the investigation of a case only after an FIR is lodged. However, the Police may not investigate the case even after filing an FIR if they do not find the case severe or if there is reasonable ground to initiate the investigation. However, under Section 157 of Cr.P.C, the Police have to record the reason for not initiating the investigation.

Types of FIR

There are various types of FIR. The following are some of the most important ones:

General FIR

A general FIR is one filed by the aggrieved party or the first party against another party in a general transaction at the nearest police station.

Zero FIR

Zero FIR is given the number “0” (zero) instead of a serial number, hence the name. It is recorded regardless of the location where the crime was committed. After registering Zero FIR, the police station transmits it to the jurisdictional police station where the offence took place. When the appropriate police station receives the Zero FIR, it is assigned a serial number and turned into a regular FIR.

Cross FIR

The other party (accused) may file an FIR against the complainant after the FIR is filed. This is called a cross FIR or counter FIR.

The filing of the counter FIR may be motivated by personal animosity or any malicious purpose to perplex the Court, or it may be used as a weapon to negotiate a future settlement and entice the complainant to retract the initial FIR.

Multiple FIR

Multiple FIR is when aggrieved parties file multiple FIRs with the same cause of action. Multiple FIRs will be submitted only if the subsequent informer accounts for a completely new version of the alleged occurrence.

Importance of FIR

The main goal of an FIR is to set the criminal law in motion and to gather information regarding alleged illegal behaviour so that appropriate steps can be taken to track down and prosecute the perpetrators. As a result, Sec. 154 has three objectives:

To notify the Magistrate and the District S. P., who are in charge of the district’s peace and safety, of the crimes recorded at the police station;
To inform the judicial officers who will ultimately hear the case what information was released immediately after the occurrence and what documents were used to begin the inquiry,
To protect the accused from future modifications or any other additions.

procedure to file an FIR in the police station:

To file an FIR in the police station, consider the following steps.

Step 1: Go to the nearest police station and tell them everything you know about the situation.

Step 2: You can either tell the officer about the situation verbally, for example, what happened? How did you figure that out? Alternatively, jot down the data on your own.

Step 3: If you tell the police something verbally, the duty officer must write it down and record it in the General or Daily Diary.

Step 4: You must bring two copies with you if you’re filing a written complaint. One will be given to the duty officer, while the other will be returned to you.

Step 5: After you submit the information, the police will review all the details.

Step 6: You will then read the information that the police have recorded.

Step 7: You must sign the FIR after the police have recorded the information.

Step 8: Only sign the report after double-checking that the information recorded by the police matches the information you provided.

Step 9: You will be given a free copy of the FIR with an FIR number, the date of the FIR, and the name of the police station.

Make certain that both copies are stamped. A DD Number, or Daily Diary Number, is stamped on the FIR. It’s proof that your complaint was received

Conditions that must be met to file FIR:

The following requirements must be met to qualify as an FIR under Section 154:

It is information on the commission of a criminal offence;
It is provided orally or in writing by the informant;
It should be reduced to writing by the officer in charge of a police station or under his direction if presented orally, and it should be signed by the person giving it if delivered in writing or reduced to writing
The substance of the information shall be recorded in a book in the manner prescribed by the State Government. (‘General Diary’)
There must be something in the form of a complaint or accusation regarding the occurrence of a cognizable offence for the information to be classified as an FIR

Conclusion

FIR (First Information Report) is a document where the first information about the commission of a cognizable is recorded. It is important for both the person filing it and the Police. Its registration sets the criminal law into motion, and the Police start investigating the crime allegedly committed. The statement may be registered either orally or in writing. If the information is given orally, the Police officer must produce the orally given statement in writing and get it either signed or marked off the thumb impression of the informant.

SEVEN LAMPS OF ADVOCACY

Advocacy is an Honourable profession. Advocates are part and parcel of Court. Their efforts solve the conflicts in the society. Advocates defend the rights and liabilities. They hold unique place in the society. Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark.

In the case of J,S Jadhav Vs. Mustafa Haji Mohamad yusuf 1993 AIR 1535, the Hon’ble Supreme court of India observed that “Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark. The sincerity of performance and the earnestness of endeavour are the two wings that will bare aloft the advocate to the tower of success. Given these virtues, other qualifications will follow of their own account. This is the reason why the legal profession is regarded as a noble one.”

Thus, the legal fraternity centered on upholding and reinforcing the justice notion is the resemblance of nobility, which must be maintained and followed by the people immersed in it. In general parlance, ethics deals with the required qualities that encompass a well-founded standard of righteous behaviour qua the code of conduct elucidating what an individual is ought to do i.e. his rights and duties.

As like every profession, the legal profession is encapsulated in a code, which is avowed ethics. Undeniably, the bedrock principle on which this noble profession has built is professional ethics. Such legal professional ethics lay down the ethical code that a legal person should possess so as to keep up the law and justice by balancing the relationship between the bar and the bench.

A great position entails great responsibility, as like, an advocate being the authority qualified to plead should hold certain qualities and other pertinent skills. As far as India is concerned, legal ethics can be defined as the code of conduct stated either in written or unwritten provided for the regulation of advocates behaviour falls within the purview of Advocates Act, 1961.

Rules on the professional standards that an advocate needs to be maintained are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been incorporated in Section 49 (1) (c) of the Advocates Act, 1961. It is pertinent to note that this provision empowers the bar council of India (A statutory body established under Section 4 of the Advocates Act, 1961) to make and regulate rules on the standard of professional conduct and etiquette to be observed by advocates.

It was Judge Edward Abbott Parry who brought the theory into existence. He gave the seven lamps of advocacy. After that, the 8th lamps of advocacy were added by justice V Krishnaswamy Aiyar in his legal book of “professional conduct and advocacy”. He named 8th lamp of advocacy TACT.

The qualities given above the seven lamps of advocacy are the best and essential qualities of an advocate which must be followed by an advocate to succeed in his legal profession while practising in the court anywhere. Let’s know about each and every lamp of advocacy.

Honesty

Honesty in a profession is the official policy that should be used by every person while interacting with another person. Honesty should reflect in the thoughts, words and behaviour of an advocate. It is honesty that increases the personal and professional reputation of the person in a society. The reputation of an advocate is the thing that includes his fame and trust with his clients and bar.

An advocate is expected to be honest while dealing with the case and making arguments and producing oral and documentary evidence in the court of law. The judge decides the case on the basis of the submission and arguments done by an advocate on the behalf of his client. If wrong fact represented by an advocate can punish an innocent person. An advocate should be:

Honest with his client-

He must tell his client about the position of the case every time.
An advocate must tell about the merits of the case
He must tell about the demerits of the case or any consequences which can lead to the loss of his client.
If an advocate is going to lose the case in court, he should talk about this.

Honest with opposition-

An advocate should be honest even with his opposition party. He should not give any false facts to take the case in the opposite direction.

Deceiving a person in a case should not be the purpose of an advocate.

Honest to law-

The person who is filing the case in the court is here to take justice, not to check the talent of an advocate. Honest with the law means an advocate should give the truthful fact in front of the judge, not any false statements. Telling the truth in front of the judge is the best practice for honesty.

Courage

Courage is one of the important factors in seven lamps of advocacy. Courage means the ability to stand in front of the court without any fear. An advocate should feel proud and confident while arguing in a case. It builds the ability of an advocate to convince the judge that his true and honest facts represent on the behalf of his client.

A lawyer faces many problems while dealing with Civil litigation or Criminal litigation He should have the courage to stand in that case and remove these problems fearlessly. He should have been ready to fight all the problems and social evils. Advocates can use courage as their weapon, but for that, they must have a deep knowledge of the law.

Not all cases are easy for dealing with, an advocate can get the case related to murder, material rape, abatement, Child labour etc. He should have the courage to take every kind of case.

Industry

Ignorance of the law is not an excuse. He must have the knowledge of the law for which he is dealing in a case. We all know that the law is like an ocean; no one can be the master of law. But an advocate should know about the law used in the case in which he is dealing for.

Advocates should have knowledge, attitude and skill while dealing with the case. To get the knowledge of the law and understand the law he should have given sufficient time for that.

No advocate can win the case without sufficient knowledge of the law. He must have given the time for the case so that he could deal perfectly with that case and increase his chance to win the case. Our law is not static, it keeps changing with the need of society every time to solve the various new problems of the society. An advocate should update himself with these new laws. Even if a lawyer was good enough to deal with all the cases in the previous time, and now he does not stay up to date with new laws, he will face difficulties while dealing with the case in the present time. There is no way other than hard work.

Wit

Being a professional lawyer in the field of law, a lawyer should have wit and a sense of humour. It is the humour that keeps us calm and active. A person without a sense of humour will fight the case with anger which isn’t good for providing justice. Judges also like the advocates and witnesses which help them to provide justice in a case.

The wit is a necessary lamp to lighten the darkness of advocacy. A wit helps the advocates to stay focused on his work and reduce the workload so that he can remain relaxed. It automatically removes the mental strain of an advocate so that he can think beyond the limits of his mind.

A well-prepared speech by an advocate in front of the Judge will not always work. An advocate has to answer the questions of a Judge and that question will check the wit and presence of mind of a lawyer. The questions asked by judges check the intelligence and knowledge of advocates related to the case.

It happens many times that an advocate forgets to produce something in the court or fails to answer some questions in the court. At that time, it is the wit of an advocate which helps him to fill that gap.

Eloquence

The lamp of eloquence is the art of speaking. Every advocate delivers his argument in front of the judge. But eloquence is the way to give the arguments in a way that holds a long-lasting effect on the judge as well as the clients and listeners in the courtroom.

Eloquence is an oral art that is used by an advocate for fluent and skilful use of communication which touches the soul of a judge.

An advocate who has a good knowledge of advocacy can use the eloquence language for fluent speaking. There are some important points related to eloquence as follow:

An advocate should be a skilled speaker
He should stay confident while giving the speech in front of the judge
He should be fluent while giving this speech.
The language used by an advocate should be error-free
He should have the ability to pause himself at the right moment
This speech given by an advocate should be effective, not dramatic.
He should give this speech in a way that leaves an impression on the judge.
The language should be used in a way that should help the judge while writing his judgement.
The language should influence people towards the point of discussion.
Use of the right law phrase and law maxim.

An advocate can use the power of eloquence by:

noticing the faults made by the opposite party
Presence of mind in the case
Knowledge and practice
By setting the relation between arguments and justification

The skill to develop the equivalence in Hindi speech needs more and more knowledge.

Judgement

The lamp of judgement means the deep study of the present case and then make an informed opinion for that case. An advocate should think from two sides of the case because it will help him to understand the consequences of the case. By understanding the case from both sides the advocates knows the merits and demerits of that case. It helps him to anticipate the problems and tackle the same with his other lamps of advocacy.

A good advocate knows what will be the consequences after representing a witness in court. He should be aware of what questions can be asked by the judges and the opposite party after the witness. And he should be ready to counter these arguments and questions from the opposite party and judges of the case as well.

Fellowship

Fellowship is one of the most important lamps of advocacy. An advocate must carry fellowship with his colleagues. When an advocate takes the case and argues, he argues against an opposite advocate. But it does not make them opposite to each other, they are just making arguments for the sake of justice only. After finishing the argument in the court hall, the advocate should respect his opposite advocate. Even while doing an argument in court, an advocate should respect his opposite lawyer as well. The reason is, it is not the fight between both of them but it is the fight for justice only.

After the judgement of the caught in a case, even if an advocate lost the case, he should respect the advocate who wins the case. If an advocate starts fighting with each and every advocate who is opposing him in the case, he will make all the advocates his enemy which is not professional ethics.

A case must not bother his friendly relationship with other advocates. An advocate should while referring to the opposite advocate use the term as a learned friend or learned counsel.

Advocates should also use the lamp of fellowship for judges also. It is the arguments of an advocate which leads his case. The advocate should respect the judge even if he gave the opposite decision. An advocate should refer to a judge as:

Learned Judge or Your Honour
High court- your lordship or my lord

These are the terms that show respect towards the other advocates and judges. It builds a friendship with another colleague.

8th lamp of advocacy

TACT is the 8th lamp of advocacy. An Indian lawyer and former judge of Madras High Court “V Krishnaswamy Iyer” has written the TEACT in his book of PROFESSIONAL CONDUCT AND ADVOCACY as the 8th lamp of advocacy.

Sometimes it happens that the courtroom becomes a mess due to the heavy and serious arguments by advocates. In those circumstances, advocates should know how to tackle the situation. An advocate should know how to:

control his client in that situation
Control over the opponent advocate in the case.
Persuade the judge

An advocate should use a great technique that will be able to control the messy situation in the courtroom.

(7+1) Tact K.V.Krishnaswamy Aiyer, in his book “Professional Conduct and Advocacy” adds one more lamp i.e. tact. Tact means handling people and situations skilfully and without causing offence. An advocate must be in a position to tackle and win his client, opponent party, opponent advocate in a smoother way. Many people of unequal ability have failed for want of tack. An advocate should not quarrel with Court or loose temper over trifle things in the Court and outside. Men of unquestioned ability have suffered for quarrelling with the tribunal or for standing on their dignity over trifles, for getting their clients, or for losing their tempers; they are men of parts but more properly refers to the human side of putting into action the result of one’s judgment.

Conclusion

Advocates should keep burning these seven lamps of advocacy. Advocacy is not a way to make money but it is the profession that helps the person to provide justice. Through the eyes of Sir John Scott, 1st Earl of Eldon, To succeed as a lawyer, a man must work like a horse and live like a hermit. Former Chief Justice of India S H Kapadia expressed the same while emphasizing the necessary character, which aids an advocate to remain at the top in the legal profession

Advocacy is a profession and duty of an advocate towards society. Every lawyer is expected to deal with the case by using these seven lamps of advocacy. An honest advocate builds a strong bond with his clients and colleagues. Every lamp of advocacy has its own benefits which make the advocate confident and strong to deal with the case.

The seven lamps of advocacy are the qualities of a successful lawyer. If you are going to practice in court, you must obey the seven lamps of advocacy.

Constitution

Constitution was constituted in 14th-century English as a word indicating an established law or custom. It is from Latin constitutus, the past participle of constituere, meaning “to set up,” which is based on an agreement of the prefix com- (“with, together, jointly”) with the verb statuere (“to set or place”). Statuere is the root of statute, which, like constitution, has a legal background; it refers to a set law, rule, or regulation. Constitution is also the name for a system of laws and principles by which a country, state, or organization is governed or the document written as a record of them. Outside of law, the word is used in reference to the physical health or condition of the body (“a person of hearty constitution”) or to the form or structure of something (“the molecular constitution of the chemical”)

The Constitution of India is the backbone of democracy in our country. It is an umbrella of rights that gives the citizens an assurance of a free and fair society.
The Constituent Assembly adopted the Constitution on 26th November 1949 and it came into effect on 26th of January 1950.
Our constitution is unique. It is unique in many ways. We know that our constitution was framed by the constituent assembly in a long time of 2 years, 11 months and 18 days. It must be noted that the idea of the constituent assembly was not of congress. The idea was put forward by MN Roy in 1934.

Since 2015, Constitution Day is being celebrated on 26th November to commemorate the adoption of the Constitution of India by the Constituent Assembly in 1949.

Definitions of Constitution

• Woolsey : “ Constitution is the collection of principles according to which the powers of government , the rights of the governed and relation between the two are adjusted”.

• Lord Bryce: A constitution is “ the aggregate of laws and customs under which the life of the state goes on”.

• MacIver: A constitution is “the law which governs the state”.

Why is it called Indian Constitution

The Indian Constitution is called a living document because it can be amended or changed. Our Constitution accepts the necessity of modifications according to changing needs of the society. Secondly, in the actual working of the Constitution, there has been enough flexibility of interpretations. The Constitution is an instrument that societies create for themselves. Thus, both political practice and judicial rulings have shown maturity and flexibility in implementing the Constitution.

Who has written the Constitution of India?

Prem Behari Narain Raizada was the calligrapher of the Indian Constitution. The original constitution was handwritten by him in a flowing italic style. The original version was beautified and decorated by artists from Shantiniketan including Nand Lal Bose and Beohar Rammanohar Sinha.

The calligraphy of the Hindi version of the original constitution was done by Vasant Krishnan Vaidya and elegantly decorated and illuminated by Nand Lal Bose.

Constitution of India – Preamble

The first constitution to start with a preamble was the American Constitution. The Indian constitution also starts with one. The Preamble is basically the introduction or preface to the constitution. It sums up the essence of the constitution. N A Palkhivala, a constitutional expert, referred to the Preamble as the ‘Identity card of the Constitution’.

The Preamble is based on Pandit Nehru’s Objective Resolution that he moved and was adopted by the Constituent Assembly. The Preamble has been amended in 1976 by the 42nd Amendment which added words ‘socialist’, ‘secular’ and ‘integrity’ to it.

Ingredients of the Preamble

The Preamble gives 4 components

Source of authority of the Constitution: it mentions that the constitution derives its power from the people of India.
Nature of the Indian State: it says India is a sovereign, socialist, secular, democratic and republican State.
Objectives of the Constitution: it gives the objectives as – justice, liberty, equality and fraternity.
Constitution date of adoption: 26th November 1949.

Drafting committee of Indian constitution

On 29th August 1947, the Constituent Assembly through a resolution appointed a Drafting Committee to

‘…scrutinise the draft of the text of the Constitution of India prepared by Constitutional Adviser, giving effect to the decisions already taken in the Assembly and including all matters which are ancillary thereto or which have to be provided in such a Constitution, and to submit to the Assembly for consideration the text of the draft constitution as revised by the committee…‘

Towards the end of October 1947, the Drafting Committee began to scrutinise the Draft Constitution prepared by the B.N Rau, the Constitutional Advisor. It made various changes and submitted the Draft Constitution to the President of the Constituent Assembly on 21 February 1948.

The Drafting Committee and its members were very influential in Indian constitution-making during the Committee stages and the deliberations of the Constituent Assembly. Majority of the debates in Constituent Assembly revolved around the Draft Constitution(s) prepared by the Drafting Committee. Out of 166 sittings of the Constituent Assembly, 114 were spent debating the Draft Constitution(s).

In 1946, the Constituent Assembly met for the first time in New Delhi in the Constitution Hall which is currently known as the Central Hall of Parliament House. The Constitution of India was drafted by several eminent people in various fields.

Dr. B R Ambedkar is the chief architect of the Constitution of India. As per Article 395, the Government of India Act of 1935 and the Indian Independence Act of 1947 got repealed with the beginning of the Constitution of India.

The Constituent Assembly selected 22 committees to deal with diverse tasks of Constitution-making. Out of these, 10 were on procedural affairs and 12 on substantive affairs.

Drafting committee members

Chairman – Dr. BR Ambedkar

Members:

N Gopalaswamy Ayyangar
Muhammad Saadullah
Alladi Krishnaswami Ayyar
KM Munshi
BL Mittar substituted by N Madhava Rao following his resignation on health issues
Dr. DP Khaitan (died in 1948 and was substituted by TT Krishnamachari)

The committees of Procedural affairs include:

Steering Committee
Rules of Procedure Committee
Committee on the effect of Indian Independence Act of 1947
Orders of Business Committee Credentials Committee
House Committee
Hindi Translation Committee
Urdu Translation Committee
Finance and Staff Committee
Press Gallery Committee

The committees of substantive affairs include

Major Committees of the Indian Constituent Assembly	Chairmen
Ad hoc Committee on the National flag	Rajendra Prasad
Advisory Committee on Fundamental Rights,	Vallabhbhai Patel
Committee on the Functions of the Constituent Assembly	G.V. Mavalankar
Committee on Minorities and Tribal and Excluded Areas	Vallabhbhai Patel
Committee on the Rules of Procedure	Rajendra Prasad
Special Committee to Examine the Draft Constitution	Alladi Krishnaswami Ayyar
Provincial Constitution Committee	Vallabhbhai Patel
Drafting Committee	B.R. Ambedkar
Excluded and Partially Excluded Areas Sub-Committee	A.V. Thakkar
Finance and Staff Committee	Rajendra Prasad
Fundamental Rights Sub-Committee	J.B. Kripalani
House Committee	B. Pattabhi Sitaramayya
Minorities Sub-Committee	H.C. Mukherjee
North-East Frontier Tribal Areas and Assam, Excluded and Partially Excluded Areas Sub-Committee	Gopinath Bardoloi
Order of Business Committee	K.M. Munshi
States Committee	Jawaharlal Nehru
Steering Committee	Rajendra Prasad
Union Constitution Committee	Jawaharlal Nehru
Union Powers Committee	Jawaharlal Nehru

Sources of Indian Constitution:

A. Constitution Of United States Of America:

Separation of Power: The doctrine of separation of power was derived from the USA constitution. Aristotle proposed the Idea of separation of power as at that time all power was vested in the King. Later, Montesquieu said that for a better living environment, divide the state into legislative, executive, and judiciary; later, these thoughts become the doctrine of separation of power. In the U.S.A. every three power is independent and strictly separated but in India, it’s quite free of strictness. A legislature can play the role of judiciary and vice versa for each of the three. Also, it can be said that in India it’s the Doctrine of separation of functions which means there is a check n the balance of these powers. There is no strict separation in India.
Federalism: The spirit of federalism is based on the constitution of the U.S.A. The United States of America is the union of many states which form a union of a big nation. The U.S.A. Is a true federation while India is quasi-federal in nature.
Preamble: It was copied from the preamble of the US constitution and also the idea of a written constitution. The USA was the first country to put a preamble in its constitution. “We the people” states that the real source of the constitution is the people.
Fundamental Rights: Not even India but many nations have taken the idea of fundamental rights from the USA; which is the most important part of our constitution. It is a guaranteed right of the US constitution.
Equal protection of Law: the ideology of equal protection of the law of all citizens under article 14 was also taken by the US constitution.
Impeachment of the President: Formal removal of the president by impeachment given under article 61 of the Indian constitution was also taken from the US constitution.
Judicial Review: In Marbury v. Madison, the chief justice of the Supreme Court of U.S.A held that judicial review is the power that the courts must have in order to declare any law/policy by the government is illegal or not. The Supreme court and High Court have made vast judicial reviews over the amendment of the constitution.
Post of Vice-president: Analogous work done by the vice president is the same both in India and the USA but the power & scope are different in both countries. The Vice president of the USA is more powerful than the vice president of India.

B. British Constitution:

1. Parliamentary Democracy: It has very vast role-playing in systems as:

Bicameralism- Bicameral System of parliament means the parliament is divided into two houses, one upper house, and the other lower house. Rajya Sabha is the upper house and Lok sabha is the lower house.
Cabinet System- It is a system in which the existence of the Cabinet, including the election of the Prime Minister, depends on parliamentary confidence in the Cabinet.
Legislative Procedure- It means any type of being brought before the house of parliament to enact or pass it as an act or law.
Parliament Privileges- These are some rights and immunities given under Article 105 provided as a privilege for cabinet ministers. And article 194 for state legislative assembly’s members.

2. Rule of law: Dicey gives the rule of law i.e. Law is supreme. In India rule of law also prevails but any law in the violation of fundamental rights will be deemed to be void. It is given under article 13.. Writs: The most important power of citizens against the violation of Fundamental & other rights is Writs. It is given under Article 32 in which citizens can move to the supreme court and under article 226 which gives power to the High court. Every five writs were adopted from the British constitution.

4. Single Citizenship: This gives the idea of brotherhood as every citizen is only Indian and nothing else. Unlike America as there is a dual citizenship system in India citizens have to take only single citizenship.

C. Constitution of Ireland:

Directive Principles of State Policy: Part IV of the Constitution directs the state for the welfare of the public & it is derived from the Constitution of Ireland, 1937.
The Presidential election method was also taken from the Irish Constitution.
Nomination of members for Rajya Sabha by the president.

D. Constitution of Canada:

Quasi-federal Structure: Spirit of federalism was taken by the U.S. constitution but the structure of federalism was adopted by Canada where most of the residuary powers are vested in the union. So, Residual powers to the union of India are taken from the Canadian Constitution.
Advisory Jurisdiction of the Supreme Court (Article 143): Even the president can seek advice from the Supreme Court over any law.

E. Constitution of France:

Ideas of liberty, equality, fraternity were taken from the French constitution and it is the important source of the constitution in the preamble.
Constituent Assembly: The making of a constituent assembly for the Constitution was the most popular idea of the French constitution.

F. The Constitution of the U.S.S.R (Union of Soviet Socialist Republic):

Fundamental Duties: By the 42nd amendment of the Constitution, the parliament added the fundamental duties (Article 51-A) which were adopted from the Constitution of the USSR. It imposes few liabilities to the citizens of India.
Ideas of Justice: The idea of social justice, economic justice, political justice, and every other justice was taken from the USSR and expressed in the preamble which gives justice by health, wealth, living, etc. in the Constitution.
Socialistic principle: The idea of socialism in the nation and between its citizens was a part of the USSR constitution.

G. Constitution of Germany:

Suspension of Fundamental Rights during the Emergency in the country was adopted from the Weimar Republic of Germany. At the time of Hitler during the period of war, the fundamental rights of citizens of Germany were suspended in an emergency.

H. Australian Constitution:

The concurrent list was adopted from the Constitution of Australia. The concurrent list is the list that deals with both the union and state. Both governments can make laws for the subject which comes under the concurrent list.

I. Constitution of South Africa:

Amendment of Constitution: This power is given to the parliament to amend the Constitution under article 368. It allows the parliament to change, repeal or make any new laws or acts. But such laws must not be violative of fundamental rights.
Election of members of Rajya Sabha.

J. Constitution of Japan:

The procedure established by law under Article 31 states that any law is valid only if it is enacted by the due procedure of making law.

K. Government of India Act,1935:

The Constitution makers adopted 75% of the Indian constitution from the Govt. Of India Act, 1935. Few main provision which was adopted:

Office of Governor: Article 153 provides that there must be a governor for every state and he has the executive power of such state.
Judiciary: The Constitution empowers the judiciary to protect and save the Indian citizens from rule of law and supremacy. Judiciary is in the hierarchy system Supreme Court then High court and then Subordinate courts to the High Court.
Public Service Commission: It was established by the Britishers in India and it is an integral part of the administration system today. Which was later added to the constitution.
Emergency: Emergency provisions were adopted by GOI act 1935 which is given in part 18 from articles 352 to 360 in the Indian Constitution. The president has the power to impose an emergency over a nation or state or any part of the state from conditions like war, aggression or etc.

Conclusion:

The basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it Many critics believe that the Indian Constitution contains nothing new and original. Critics described it as a ‘borrowed Constitution’, a ‘bag of borrowings’, a ‘hotch-potch Constitution’, and a ‘patchwork’ of several documents of the world constitutions. Since 2015, Constitution Day is being celebrated on 26th November to commemorate the adoption of the Constitution of India by the Constituent Assembly in 1949.

Right Of Private Defense

Self help is the first rule of criminal law. The India penal code has given the right of private defence of body and property to every individual. Section 96 to 106 states the law relating to the right of private defence of person and property.

Chapter IV of the IPC, which includes Section 76 to Section 106, explains general defences which can be pleaded as an exception for any offence. The right of private defence explains that if something is done in private defence then it is no offence. A right to defend does not include a right to launch an offence, particularly when there is no more a need to defend.

In the word of Bentham “The right of private defence is necessary for the protection of life and liberty and property. ”

The law of private defence is based on two different principles

1- Everyone has the right to private defence of his own body and property and another body and property.

2-The right of private defence is not applicable to those cases where the accused himself is an aggressive party.

It is primary duty of the State to protect life and property of citizens. But the fact is that State cannot watch each and every activity of the citizens. There may be situations in which the State cannot help person immediately when his life or property is in danger. In view of this Indian Penal Code has given the right of private defence of body and property of every individual.

The right of private defence has to be exercised directly in proportion to the extent of aggression. There is no as such hardcore formula to test that the act of the person falls within the ambit of private defence or not. It depends upon the set of circumstances in which the person has acted. Whether in a particular circumstance, a person has legitimately acted to exercise his right of private defence is a question of fact.

In determining this question of fact, the court must consider the surrounding facts and circumstances. If the circumstances show that the right of private defence has been legitimately exercised, the court is open to consider the plea. Certain factors need to be kept in mind in considering the act of private defence:

If there was sufficient time for recourse to public authorities or not
If the harm caused was more than what was necessary to be caused or not
If there was a necessity to take such action or not
If the accused person was the aggressor or not
If there was a reasonable apprehension of death, grievous hurt or hurt to the body or property.

Nature of Right of Private Defence

In Shankar Balu Patil v. State of Maharashtra 2007 (5) MhLj 663 hon’ble Supreme Court stated that right to private defence is purely preventive and not offensive, retributive or punitive. The right is a right of ward of danger must not be illusory but must be so imminent, potent and real that it cannot be averted otherwise than by a counter attack. The rule is quite clear on the point that it has to be established that the accused person were under such grave apprehension about the safety of their lives and property that retaliation done to the extent done was absolutely necessary. The Court has made it clear that Section 97 of IPC recognizes the right of person not only to defend his own or another’s property even against an attempt to inflict any offensive act as against the property.

When Private Defence Extends to Cause Death

It is a rule that a person exercising the right of private defence is allowed to inflict reasonable harm to protect body or property. But there are certain occasions when this right extends to causing of death. They are:

In the case of Body (Sec 100 IPC)
In the case of Property (Sec 103 IPC)

The right of self-defence to cause death and the doctrine of necessity

The doctrine of necessity states that if an act is an offence, it will not be considered as one if the following conditions are satisfied :

The act was done to avoid other harm which could not be avoided otherwise. If that situation was not avoided, it would have inflicted upon him or another person’s body or property, inevitable and irreparable evil.
The force inflicted was reasonable as per the necessity
The evil inflicted was proportionate to the evil avoided

As stated in KENNY on Outlines of Criminal, where the man has inflicted harm upon others person or property for the purpose of saving himself or others from greater harm, he is saved under this defence. One person, in private defence can kill any number of aggressors to protect himself alone. private defence overlaps the doctrine of necessity. Unlike necessity, the private defence does not.

What is the extent of private defence against body in a situation which is not mentioned in the seven categories of Section 100? If there is any situation which is not mentioned in Section 100, the person cannot exercise his right of private defence against the body to cause death of any person. He can only exercise the right to the extent of causing any other harm or injury except death. In the case of Mahinder Pal, when small mischief was committed in the factory by the workers, the owner was not justified in doing his act when he shot dead one of the workers.

What are the Exceptions to the rule of private defence? (Section 99) :

Act of a public servant or under the direction of a public servant:

A person cannot exercise his right of private defence if the following conditions are satisfied:

There was no fear of death or grievous hurt

The act was done or attempted to be done by a public servant or under the direction of public servant

The public servant was acting in good faith

The public servant was under colour of his office

It does not matter if the act or direction was justified by law or not.

Section 99 specifically says that there is no right of private defence against an act which does not cause reasonable apprehension of death or grievous hurt, if done or attempted to be done on the direction of a public servant acting under good faith under the colour of his office. The protection extents to acts which are not even justified by law .

However, there is a difference between acts which are not strictly justified by law and acts which are wholly illegal. If a public servant acts without jurisdiction, it cannot be said that he acted in good faith and his act should be protected even if it is not justified by law. The law does not protect illegal acts and the acts committed by officers without jurisdiction. ‘Act not justified by law does not cover an act which is wholly illegal and totally without jurisdiction. Section 99 applies to acts where jurisdiction is wrongly applied but not in cases where jurisdiction is absent.

When a person has time to recourse:

If a person has reasonable time to have recourse to the protection of the public authorities; he has no right to use its private defence. For example, if a person is threatened that he will be killed after three days, he has sufficient time to inform the police. If in case he waits for the person who threatened him and shot him dead. He cannot say that he was using his right of private defence.

A per the Supreme Court of India, when a person has time to get recourse and there is no need to take law in hands, right of private defence cannot be exercised.

This does not mean that a person must run away to have recourse of the public authorities when he is attacked instead of defending himself .

In the case of Jai Dev v. state of Punjab,(AIR 1963 SC 612 the Supreme court said that “In a civilized society, the state is assumed to take care of person and properties of Individual. This, however, does not mean that if a person suddenly faces an assault, he must run away and protect himself. He is entitled to resist the attack and defend himself.”

The law of private defence itself states that there is no right of private defence available unless the situation was so urgent that there was no time to have recourse to the protection of public authorities. The urgency of the situation must naturally depend upon several facts and circumstances. These circumstances may include:

Immediate danger to person or property that if it is not immediately protected, would be lost by the time the protection from public servants is obtained.
Reasonable apprehension of the danger to person or property arises out of committed, attempted or threatened crime. The act was going to affect person and property and justifies the particular injury inflicted.
When the act of private defence extends to inflicting of more harm than it is necessary to inflict for the purpose of defence
The right of private defence is restricted to not inflicting more harm than necessary for the purpose of defence. To determine the amount of force which was necessary to be inflicted, the facts and circumstances are needed to be considered. There is no protection available in case the harm is inflicted unnecessarily and is much extended than what was reasonable.

For instance, if a person is going to slap you, you cannot shoot the person with a gun in self- defence.

There have been instances where the force inflicted was more than necessary. Some of them are:

A person killed old woman found stealing at night.
A person caught a thief at night and deliberately killed him with a pick-axe.
A thief was caught committing housebreaking and was subjected to gross maltreatment
The right of private defence arises when an aggressor has struck or a reasonable apprehension of a grievous hurt arises depending upon the facts of each case. But such a right in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence

Right to private defence of body up to causing death

Section 100 of IPC specifies six situations in which the right of private defence of body extends even to causing death.

Section 100 – The right of private defence of the body extends under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions here in after enumerated, namely –

First – such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.

Second – such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.

Third – An assault with the intention of committing rape.

Fourth – An assault with the intention of gratifying unnatural lust.

Fifth – As assault with the intention of kidnapping or abducting.

Sixth – An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Even though this section authorizes a person to cause death of another in certain situation, it is also subject to the same restrictions as given in section 99. Thus, a person cannot apply more force than necessary and must contact the authorities if there is an opportunity.

Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life to use and summarized the law of private defence of body as under –

There is no right of private defence against an act which is not in itself an offence under this

Section 101: When such rights extend to causing any harm other than death.

If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.

Case law for Section 101

In Dharmindar v. State of Himachal Pradesh, that onus of proof to establish the right of private defence is not as onerous as that of a prosecution to prove its case. Where the facts and circumstances lead to a preponderance of probabilities in favor of the defence case it would be enough to discharge the burden to prove the case of self-defence.

Section 102: Commencement and continuance the right of private defence of the body.

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; it continues as long as such apprehension of danger to the body continues.1

Example: A, B, and C were chasing D to kill him in order to take revenge, but suddenly they saw a policeman coming from another side. They got afraid and turned back to run. But D shoots B in his leg, even when there was no imminent danger of harm. D will be liable as there was no apprehension of death or risk of danger.

Section 103: When the right of private defence of property extends to causing death.

Robbery;
House-breaking by night;
Mischief by fire committed on any building, tent or vessel, building, tent or vessel used as a human dwelling, or a place for the custody of property;
Theft, mischief, or house-trespass, under such circumstances, as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised.

Example: C Attempts to stab D maliciously while committing burglary in D’s house. There is a reasonable apprehension in the mind of D that C will hurt him grievously, so in order to save himself and property, C throttled D with a knife in his chest, causing Death. C will not be liable.

Case law for Section 103

In Mohinder Pal Jolly v. State, the deceased worker and some of his colleagues were shouting slogans for demands outside the factory. Some brickbats were also thrown by them which damaged the property of the owner who fired two shots from outside his office room, one of which killed the deceased worker. The court held that it was a case of mischief and the accused will not get the defence of this section.

Section 104: When such right extends to causing harm other than death.

If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.

Example: If A has committed criminal trespass in order to annoy B or hurt him, then B will have the right to harm A in proportional manner, not causing death of the person.

Case law for Section 104

In VC Cheriyan vs. State, the three deceased along with other persons had illegally laid a road through private property of the church. A criminal case was pending against them. The three accused belonging to church put up barricades across this road. The deceased was stabbed by accused and Kerela HC held that private defence does not extend to causing the death of a person in this case.

Section 105: Commencement and continuance of the right of private defence of property.

The right of private defence of the property commences when:

A reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues until the offender has effected his retreat with the property
Or, either the assistance of the public authorities is obtained,
Or, the property has been recovered.
The right of private defence of property against robbery continues as long as the,
Offender causes or attempts to cause to any person death or hurt
Or, wrongful restraint
As long as the fear of instant death or
Instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

Example: Suppose a thief into the house of an individual, and attempts to hurt him instantly with a knife, then that individual has the right to act in private defence and harm that thief to save life and property.

Case law for Section 105

In Nga Pu Ke v. Emp, paddy sheaves belonging to the accused were removed illegally by a person. Accused attacked the cartmen and that cartmen jumped off the carts and ran away leaving sheaves. The accused still chased him and attacked him leading to death. The court held him as guilty of offence

Section 105: Commencement and continuance of right to private defence to property

To what extends this right is justified depends not on actual danger but on whether there was reasonable apprehension of such danger and when the same is commenced.

The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

Section 106: Right to private defence against a deadly assault.

This section provides for the risk a person may have to run in order to defend himself against a deadly assault reasonably causing the apprehension of death. The defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

Example: C is attacked by a mob who attempts to murder him. He cannot exercise his right to private defence without firing on the mob. In order to save himself, he is compelled to hurt innocent children while firing so C committed no offence as he exercised his right.

Conclusion

Right of private defence is a good weapon in the hand of every citizen to defend himself. This right is not of revenge but toward the threat and imminent danger of an attack. But people can also like misuse this right. Its very difficult for court to find out whether this right had been exercised in good faith or not. So these were the general exceptions which are available to the accused to escape liability or save himself from the offence committed. It may extend to even causing the death of a person or harm an innocent person too depending upon the circumstances. The accused should also have the right to be heard, keeping in view the democratic character of our nation. That’s why these exceptions are provided so as to represent oneself in the court of law.

Who are Hindus

The term “Hindu” is derived from the Greek Word “Indoi” the term Hindu it is difficult to define the Hindu religion. Sec 2 of HMA 1955 states that this act applies to any person who is a Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Any person who is a Buddhist, Jain, or Sikh also comes under this act. It also applies to any person living outside this territory except who is a Muslim, Christan, Parsi, or Jew by religion or it is proved that such person is being governed by Hindu law. It is believed that it is the strongest bond between husband and wife. It is an unbreakable bond that remains even after death. The importance of marriage is not to the extent of one generation but it is an in-depth belief of Hinduism. Without a wife, a person is considered incomplete while performing any rites of Hinduism. It is very important to perform all the rites with the wife.

Hindu by Religion

The Medieval period of Hinduism lasted from 500 to 1500 AD. Hinduism is the oldest religion which contains a wide range of tradition and culture which are followed by all the Hindus across the globe. Any person who is a Hindu by religion or born in Hindu family with Hindu father or mother in any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj or any person who is a Buddhist, Jain, or Sikh is also a Hindu by religion. Thus, any person except a follower of Muslim, Christan, Parsi, or Jew religion is a Hindu.

Hindu by Birth

Any person born in a Hindu family or has a Hindu father or mother such a person is considered as Hindu by birth. Any person born in any community apart from Muslim, Christian, Jews is also a Hindu. Any child, legitimate or illegitimate if either of his parents is Hindu, if he is brought up by the parent who is hindu shall be considered as Hindu by birth.

Convert or re-convert:

a person will be a indu by conversion or re- conversion if any one of the following modes are adopted:

if a person undergoes a formal ceremony prescribed by the religion, caste, community or sect which he wants to enter. Held in Kusum Vs. Satya ILR (1930) 30 cal 99.
If a person expresses a bona fide intention to become a Hindu accompanied by a conduct unequivocally expressing that intention coupled with the acceptance of his as its member by the community or caste into the fold of which he has entered peerumal Vs Poonuswami, AIR 1971 SC 2352.
If a person bona fide declares that he has accepted Hinduism as his faith and he has been following Hinduism for sometime, he becomes a Hindu held in Mohandas Vs. Devansam Board 1975 KLT 55.

Rajkumar Vs. Barbara AIR 1989 Cal.165. the child was born of indu father and a Christian mother. It was not shown that the child ws brought up as a hindu.in this case court held that this child was Hindu.

Conclusion

In India, unless a person converts to another religion, he continues to belong to his community of religions, has also to belong to his community of origin or birth, whatever he may do with his religion.

Nullity & Annulment of Marriage (Hindu Law)

Marriage

A decree of nullity is a declaration by a court that your marriage never existed in the eyes of the law. It means that no valid marriage exists between you and your partner. Nullity (or annulment) is not the same as divorce. Divorce is a declaration ending a valid marriage. Nullity is a declaration that a valid marriage never existed.

There are three types of marriages under this Act: (i) valid, (ii) void, and (iii) voidable. Section 11 deals with void marriages and Section 12 deals with voidable marriages. All other marriages which are not covered by these two sections are valid.

Nullity decree; decree absolute of nullity = for void marriages

Annulment = for voidable marriages

Valid marriage(Sec.5) HMA

Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid marriage. It contains such conditions that if
violated shall result in a void marriage. Section 5 of the Hindu Marriages Act says A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) though capable of giving valid consent has been suffering from a mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the
marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them
permits marriage between the two;
(v) the parties are not sapindas of each other unless the custom or usage governing each of them permits marriage between the two

Void marriages (Nullity of Marriage)

A void marriage is a marriage that is unlawful or invalid under the laws of the jurisdiction where it is entered. A void marriage is invalid from its beginning and is generally treated under the law as if it never existed and requires no formal action to terminate.

Section 12 of the Hindu Marriage Act, provides for a decree of nullity of marriage, which is voidable, on any of the following
grounds:
(a) that the marriage has not been consummated owing to the impotence of the respondent. A party is impotent if his or her mental or physical condition makes the consummation of marriage a practical impossibility.
(b) that the marriage is in contravention of the conditions specified in clause (ii) of section 5, i.e., at the time of the marriage, any party was incapable of giving valid consent to it in consequence of unsoundness of mind, or if even capable of giving valid consent, such party has been suffering from mental disorder .of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or the other party has been subject to recurrent attacks of insanity.
(c) that the consent of the petitioner, or where the consent of the guardian in the marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child’s Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. However, it is significant to note that no such petition for annulling a marriage on the ground specified in clause (c) of sub-section (1) of section 12 i.e., on the ground of consent by force or fraud, shall be entertained if the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered.

Therefore, where your consent in the marriage is obtained by fraud, you have to file a petition for annulment of marriage within one year from the time when the fraud is discovered. Also remember that no such petition shall lie before the Court, in case you continued to live with the other party to the marriage as husband or wife, even after the force ceased to operate or the fraud was discovered. In case of a petition for annulment of marriage on the ground that at the time of marriage, the other party was pregnant by some other person, the court is to be satisfied that you were ignorant of this fact at the time of marriage. Furthermore, a petition on this ground has to be filed within one year from the date of the marriage. Also remember, that in case of a petition on this ground, marital intercourse with the consent of the petitioner should not have taken place ever since the discovery of the fact that the other party was pregnant by some other person

What Is Annulment Of Marriage

In strict Legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

Grounds For Annulment

The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:

1) Either spouse was already married to someone else at the time of the marriage in question;

2) Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse’s reaching marriageable age);

3) Either spouse was under the influence of drugs or alcohol at the time of the marriage;

4) Either spouse was mentally incompetent at the time of the marriage;

5) If the consent to the marriage was based on fraud or force;

6) Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;

7) The marriage is prohibited by law due to the relationship between the parties. This is the “prohibited degree of consanguinity”, or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.

8) Prisoners sentenced to a term of life imprisonment may not marry.

9) Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)

Basis Of An Annulment

In Section 5 of the Hindu Marriage Act 1955, there are some conditions laid down for a Hindu Marriage which must be fulfilled in case of any marriage between two Hindus which can be solemnized in accordance with the requirements of this Act.

Section 5 Condition for a Hindu Marriage – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) Neither party has a spouse living at the time of the marriage;

(ii) At the time of the marriage, neither party,-

(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;

(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two:

An annulment may be granted when a marriage is automatically void under the law for public policy reasons or voidable by one party when certain requisite elements of the marriage contract were not present at the time of the marriage

Voidable Marriages

Section 12 of Hindu Marriage Act, 1955 deals with

Voidable Marriages- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Marriage between Close Relatives

.A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Nullity of marriage and divorce- Void marriages –

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.

Bigamy –

If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary. Inter family Marriage. A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.

Impotency –

If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability, there are grounds for an annulment. The inability must continue and must exist at the time of suit.

The Constitutional validity of subjecting parties to andrological and gynecological tests to determine potency of parties was challenged in B.Madan Vs. N.S. Santhkumar AIR 2015 Mad 78

Lack of Mental Capacity –

If the court finds that either spouse did not have ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for an annulment. However, if the spouse who did not have the ability to understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from mental or emotional disorder

A Party was Under the Age of Consent –

If you were married while you are under the legal age, your marriage may be annulled. The legal age for boys is 21 years and for girls is 18 years. A marriage by an underage party may become legally binding and incapable of annulment if the cohabitation of the parties as husband and wife continues voluntarily after the person reached the age of consent.

Fraud or Force –

If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. Fraud is simply not telling the truth in order to induce the other party to enter into the marriage contract. Whether the failure to tell the truth will be grounds for annulment depends of the facts of the case. Force implies the use of or threat of the use of physical violence to make a person get married. The person who has been threatened or deceived about the marriage contract continues to live with the spouse after the discovery of the fraud or the deception or after being forced into the marriage, it is possible that this ground will not apply

Marriage solemnized under the influence of drugs administratered by husband and his sister is voidable as it lacks free consent held in Shitij Khurana Vs. Shreha Khurana, AIR 2014 All 27.

Unbeknownst Pregnancy:

If a spouse is pregnant with a child and the father is not the husband and the husband was unaware of such a pregnancy, the spouse is within the rights to file for an annulment.

A petition for annulment under Section 12 for nullity of a voidable marriage shall be allowed only if the following few conditions are fulfilled:

The petition should be filed within one year of the practice of force or fraud and discovery of the same
The petitioner, at the establishment of the marriage, should not have had knowledge of the fact alleged in the petition.
The petition should be filed within one year from the time when parties got the knowledge of fact alleged.
The parties should not have been sexually involved with each other since the fact alleged had been discovered.

Rights of Children From Annulled Marriages

Section 16 of the Hindu Marriage Act after the amendment act of 1976, states that the children born, before or after the commencement of the Act, out of a voidable or void marriage is legitimate, to reiterate children conceived from an annulled marriage are legitimate. The court will also have the ability to establish rights and obligations in relation to the children from such marriages.

Pawan Kumar Vs. Mukesh Kumar AIR 2001 Raj 1, in this case wife was pregrant by some other person and marriage had broken down immediately though petition was filed belatedly. The fact of premarriage pregnancy by other person itself was held in causing cruelty and mental agony, therefore the application was held into decree of divorce.

Annulment Process

Now that no-fault divorce is readily available, marriage annulment is not very common. To get an annulment, a person first needs to meet the residency requirements of the state that they live in. The jurisdictional requirements are similar to those required for dissolution or divorce: one of the parties must live in the state where the marriage annulment is filed for a continuous ninety-day period. Similar to a divorce filing, marriage annulment case proceeds with a filing, petition, summons, and ancillary documents. An annulment case can be initiated by either the husband or the wife in the marriage. The grounds for marriage annulment are stated in the petition. A divorce can be much more complicated than an annulment

Conclusion

The Act was established and the concept of Nullity of Marriage was enacted while keeping in mind the religious sentiments of the citizens of our country. Hence, Section 11 and 12 of the Act is a remedy for parties who are in a voidable or void marriage. The concept of Annulment of marriage is very important in the foundation of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized and established on the strength of fraud or where the marriage is established despite the fact that the one of the spouse was already married. With the establishment of the Amendment Act, 1976, children born out of a void or voidable marriage are also awarded a title of legitimacy, which is a blessing for such children. Annulments are very important for the growth of the society as it allows for the growth of the human being which in turn allows for a harmonious and beautiful society.

Procedural Laws

Introduction

According to Article 21 of the Indian Constitutional Law, a person’s life and personal liberty may be taken away if only a “procedure established by law” (i.e., a legally valid law) is in place. However, the doctrine of procedural due process requires that this procedural law be “fair, just, and reasonable.” The phrase “Procedure Established by Law” refers to the requirement that the proper steps have been taken in order for a law to be properly passed by the legislature or other relevant entity.

Law can be further divided into two broad categories – I. Substantive laws and II. Procedural laws. They form the two major branches of law.

The law of procedure is the area of law that regulates the litigation process. It contains the regulations for starting and carrying out civil and criminal cases. The procedures by which a court hears and decides what happens in civil or criminal proceedings are known as procedural law. In the past, most people were familiar with substantive law, whereas individuals who presently practice law or who have served as judges have been more interested in procedural law. However, the courts have created laws and rules of evidence over time. But over time, the courts have created procedural law, including rules of evidence and procedure, which are primarily concerned with the fairness and transparency of the legal process.

I. Procedural Law

Adjective law, also known as procedural law, is concerned with the application of the law as it is governed and controlled by practice, process, and machinery. The administration of justice is greatly impacted by this law. The means by which society carries out its important objectives is procedural law. Procedural law is derived from constitutional law, laws passed by the legislature, written rules that law enforcement organizations issue for their employees and that, while not having the legal force of law, may result in internal sanctions if broken, and the rules and procedural guidelines established by the Supreme Court. Holland claims that although adjectival law largely deals with the rights and behaviour of individual litigants, it also directly addresses issues like the structure of courts and the duties of judges and sheriffs, which belong to public law. It comprises
of (i) jurisdiction (in the conflicts sense); (ii) jurisdiction (domestic sense) ; (iii) the action, including summons, pleadings, trial(including evidence); (iv) judgment; (v) appeal; (vi) execution.

Procedural Law is that law which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a Suit. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian
Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits Valuation Act, 1887 are examples of Procedural Law in India.

The Procedural Law can be said, is a law that:

Lays down the rules with the help of which law is enforced
Relates to process of litigation and determines- what facts constitute proof of a ‘wrong’ or ‘Tort’.
In the context of administration of justice -the law of procedure defines the modes and conditions of the application of remedies to violated rights.
Are the adjective rules, prescribing the mode in which the State, as such a personality, may sue or be sued.
Provides for mechanism for: obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing.
It is the law of action that includes all legal proceedings, civil or criminal.

Kinds of Procedural laws:

Law of Civil Procedure

Civil Procedural Law consists of the rules and standards which courts follows while conduct civil trials. These rules govern how a civil suit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. Civil actions concern with the judicial resolution of claims by private individual or group, companies or organisations against another and in addition, governments (or their subdivisions or agencies) may also be parties to civil actions. In India Code of Civil Procedure, 1908 consolidates and amend the laws relating to the procedure of the Courts of Civil judicature.

2. Law of Criminal Procedure

Law relating to criminal, Procedure provides or regulates the steps by which one that violate a criminal Statute is punished. Procedural Criminal Law can be divided into two parts, the investigatory and the adjudicatory stages. In the investigatory phase, investigation primarily consists of ascertaining of facts and circumstances of the case by police officers and arrest of suspect of criminal offence. The adjudicatory phase begins when with the trial of suspect for the alleged criminal conduct in the court of Law. In India Criminal Procedure Code, provides the procedure of getting the penal offences prosecuted and punished
by the criminal courts. It also lays down the details regarding the arrest, investigation, bail, jurisdiction, appeals, and revisions and compounding of offence etc with regards to the various offences.

Limitations of procedural laws

Procedural laws have certain drawbacks and limitations.

Some of the procedural laws may impose strict time limitations which may either hasten or slow down the speed of the legal proceedings.
Any party who is unfamiliar with procedural laws may breach the guidelines. Though they may not affect the merits of the case, the failure to follow these guidelines may severely damage the chances of the party.
Procedural laws are constantly torn between arguments that judges should have greater discretion to avoid the rigidity of the rules. While the other argument is that the judges should have less discretion in order to avoid a result based more on personal preferences than the laws or the facts.

2. Substantive Law

The Substantive Laws are basically derived from Common, Statutory, Constitution and from the Principles found in judicial decisions following the legal precedents to cases with similar facts and situations. With the passage of time and creation
of new Statutes, the volume of Substantive Law has increased. For Example:- Penal Law, Law of Contract, Law of Property, Specific Relief Act, etc are Substantive Law

1Substantative Civil Law
The Civil Law includes any private wrong, a ‘Tort’, which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Substantative Law defines to charge the ‘Tort’. Substantative Civil Law also includes the Law of Contract- defines what is essential elements required for formation of contract; real property. The Indian
Succession Act, 1925 deals with Substantative Law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindu and Muslims in India. Other Acts that provides for Substantive Civil Law in India are Indian Contract Act, 1872;

Substantive Criminal Law
The Indian Penal Code (IPC) in India defines various penal offences and lists the elements that must be proved to convict a person of a crime. It also provides for punishment applicable to these offences. For example Substantive Criminal Law defines what constitutes ‘Murder’, ‘Robbery’, ‘Rape’, ‘Assault’ etc.

Justice Schroeder (Sutt v Sutt, 1969) explained in a family law case, that “It is vitally important to keep in mind the essential distinction between substantive and procedural law”. Substantive law creates rights and obligations, and is concerned with the ends which the administration of justice seeks to attain. It defines the actual law set down by the legislature, such as elements of a right, liability / obligation, crime, penalties to be imposed, rules of evidence, etc. Procedural law defines the manner in which the case proceeds and will be handled. In a criminal case, if the state violates a substantive rule of law, that is more likely to result in reversal of a conviction than a violation of criminal procedural law (unless the violation relates to a constitutional or legal protection).

Limitations of substantive laws

Elements of substantive laws sometimes act as an obstacle to access to justice. Some elements of substantive laws which are unfavourable to any litigant will constitute an impediment to justice.
Substantive laws can be used to limit and restrict the power and freedom of any individual.
The State possesses the uncontrolled and unlimited power to frame laws according to its own will which the judiciary is bound to follow.

However, in India, the judiciary may strike down any law if it is unconstitutional.

SUBSTANTATIVE AND PROCEDURAL LAWS – RETROSPECTIVE OR PROSPECTIVE

In general, all Procedural Laws are retrospective unless a legislature specifies so.
In ‘Nani Gopal Mitra v. State of Bihar’ (AIR 1970 SC 1636), the Court declared that amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure. In ‘Hitendra Vishnu Thakur and others etc. etc. v. State of Maharashtra and others (1994) 4 SCC 602– the Court summed up the legal position with regard to the Procedural Law being retrospective in its operation and the right of a litigant to claim that he/she be tried by a particular Court, in the following words:
(i) A Statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to form and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in Substantive Law but no such right exists in Procedural Law.
(iv) A Procedural Statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A Statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.

In Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa’ (2009) 4 SCC 299 the Court relied upon the observations made by Justice Benjamin N. Cardozo in his famous compilation of lectures The Nature of Judicial Process – that “ in the vast majority of cases, a judgment would be retrospective. It is only where the hardships are too great that retrospective
operation is withheld.”

EQUIVALENT- PROCEDURAL AND SUBSTANTIVE RULES/PRINCIPLES

According to Salmond, although the distinction between Substantive Law and Procedural Law is sharply drawn in theory, there are many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules
of Substantive Law. Of these equivalent Procedural and Substantive principles there are at least three classes as discussed below:

An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. e.g. the Rule of Evidence that a Contract can be proved only by writing corresponds to a Rule of Substantive Law that a Contract is void unless reduced to writing.
Conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it. For example:
A child under the age of eight years is incapable of criminal intention is a rule of evidence, but differs only in form from the substantive rule that no child under that age is punishable for a crime.

The acts of a servant done about his master’s business are done with his master’s authority is a conclusive presumption of law, and pertains to procedure; but it is the forerunner and equivalent of our modern substantive law of employer’s liability.
A ‘Bond’ (that is to say, an admission of indebtedness under seal) was originally operative as being conclusive proof of the existence of the debt so acknowledged; but it is now itself creative of a debt; for it has passed from the domain of procedure into that of Substantive Law.

The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy; the latter is the operation of time in destroying the right.

Procedural laws are also known as ‘Adjective laws’. In absence of substantive laws, procedural laws cannot be framed. Similarly, without procedural laws, substantive laws cannot be applied fairly and properly. Both the laws are equally important and one could not be applied effectively in absence of the other law.

In the case of Commissioner of wealth tax, Meerut V Sharvan Kumar Swarup & Son’s 1994 210 ITR 886 (SC) , the Supreme Court of India made the distinction between substantive and procedural laws clear. The Court defined substantive laws as the laws which fix duties and establish rights and responsibilities among and for natural or artificial persons, while procedural laws are those which prescribe the methods in which such rights and responsibilities may be exercised and enforced respectively

Differences between substantive laws and procedural laws

Topic	Substantive laws	Procedural laws
Subject matter	Substantive laws deal with the legal rights and obligations of the individuals among themselves and towards the state.	Procedural laws describe the ways and methods following which substantive law is enforced.
Objective	These laws control and govern the rule of law as a whole.	Procedural laws exclusively deal with the proceedings in the court and the methods to start a legal case.
Context of application	Substantive laws are applied only in legal contexts.	Procedural laws are applied in both legal and non-legal contexts including proceedings of litigation.
Regulation	Substantive laws are regulated by the Acts of Parliament or governmental implementations.	Procedural laws are regulated by statutory laws only.
Capacity	Substantive laws have individual capacities to decide the course of any legal proceedings.	Procedural laws only can dictate the paths any legal proceeding should follow.

Conclusion:

We can conclude that the substantive law defines the rights and duties, while procedural law provides the machinery or mechanism for enforcing the rights and duties. Both substantive and procedural laws are inevitable components of law of any civilized society. One without the other has neither any useful and meaningful existence nor any significance as well. Both, substantive law and procedural law, are mutually reinforcing and one acquires greater meaning and validity in presence of the other.

The Substantive and Procedural laws are the two important branches of Law. The Substantive Law is a Statutory law that defines and determines the rights and obligations of the citizen to be protected by law. Procedural Law or Adjective Law deals with the enforcement of Law that is guided and regulated by the practice, procedure and machinery. Substantative Law also defines the crime or ‘wrong’ and also their ‘remedies’; determines the facts that constitute a wrong -i.e. the subject-matter of litigation; in the context of administration of justice. the substantive law defines the remedy and the right; includes all categories of Public and Private Law. It includes both Substantive Civil and Criminal Law.
Procedural Law lays down the rules with the help of which law is enforced; determines what facts constitute proof of a wrong; in the context of administration of justice –The Procedural Law defines the modes and conditions of the application of remedies to violated rights; provides for mechanism for obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing. It is the law of action that includes all legal proceedings, Civil or Criminal.

Sources of law

Introduction

The Latin word jurisprudentia, which means “science or knowledge of law,” is the root of the English word “jurisprudence.” It is a very broad field of study that encompasses numerous philosophies and theories about the origins of law. The study’s scope also encompasses how law interacts with people and other social structures. We derive law from many different sources. Many jurists and academics have tried to categorise the origins of law. However, laws, court precedents, and conventions are the most prevalent sources across all of these categories.

Law and sources of law

The Law of the State or of any organised organisation of men is constituted of the rules that the courts, which are the body’s judicial organ, set forth for the determination of legal rights and obligations, according to John Chipman Grey, a former professor at Harvard Law School. Gray separated law from the sources of law, despite criticism that his definition was too restrictive. He contends that case law and other legal sources have helped to shape the development of the law and provide the basis for its legality. Law, in its simplest form, refers to the regulations or standards of behaviour, and sources relate to the sources of its information.

Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified the sources of law into mainly two categories,i.e., material sources and formal sources.

Material sources

Material sources of law are those sources from which the law gets its content or matter, but not its validity. There are two types of material sources which are legal sources and historical sources.

Legal sources

Legal sources are the instruments used by the state which create legal rules. They are authoritative in nature and followed by courts of law. These are the sources or instruments that permit newer legal principles to be created. According to Salmond, legal sources of English law can be further classified into four categories-

Legislation,
Precedent,
Customary law, and
Conventional law.

Historical sources

Historical sources have an impact on the evolution of legislation without affecting the legitimacy or authority of the law. These resources indirectly affect the laws. All laws have a historical foundation, although they may or may not have a legal foundation. This is the difference between legal and historical sources. Examples of this type of source are judgments rendered by foreign courts.

Formal sources

Formal sources of law are the instruments through which the state manifests its will. In general, statutes and judicial precedents are the modern formal sources of law. Law derives its force, authority, and validity from its formal sources.

According to Keeton, the classification given by Salmond was flawed. Keeton classified sources of law into the following:

Binding sources

Judges are bound to apply such sources of law in cases. Examples of such sources are statutes or legislation, judicial precedents, and customs.

Persuasive sources

Persuasive sources are not binding but are taken into consideration when binding sources are not available for deciding on a particular subject. Examples of such sources are foreign judgments, principles of morality, equity, justice, professional opinions, etc.

Precedent as a source of law

The judgements made by courts in various cases are referred to as judicial precedents. A judicial ruling establishes a rule of law that the lower courts must follow. The courts below must follow the precedent set by a court’s decision in a specific case when making decisions in cases with comparable facts. The following are a few of India’s most significant legal precedents:

Kesavananda Bharati v. the State of Kerala (1973): This decision established India’s basic structure theory, which prevents the removal of the Indian Constitution’s fundamental provisions.

Punjabi State v. Gian Kaur, 1996: According to this ruling, Article 21 of the Indian Constitution does not provide the right to die. Everybody has the right to a dignified death, the court said. The right to a dignified death was distinguished from the right to an unnatural death by the court.

In Maneka Gandhi v. Union of India (1978), the court ruled that the Passports Act, 1967’s Section 10(3)(c) was invalid because it contravened Articles 14 and 21 of the Indian Constitution.

Indra Sawhneyv. Union of India, (1992): This ruling placed a 50% cap on reservations for underprivileged groups. It further argued that economic backwardness alone cannot serve as the sole criterion for group classification as “backward classes.”

Theories of precedent

Declaratory theory: Declaration of existing law by the judges is known as declaratory theory. Judges only declare the existing law.
Original precedent theory: Law making by the judge known as original precedent theory judge are the lawmakers the role of judge is creative particularly when the law is absent.

Principles of precedent

The doctrine of Stare Decisis

The authority of judicial precedents is based on the doctrine of stare decisis. The term stare decisis means to not disturb the undisturbed. In other words, precedents that have been valid for a long time must not be disturbed.

In India, lower courts must follow higher courts’ precedents, while higher courts must follow their own precedents. But when it comes to High Courts, one High Court’s ruling does not control the other High Courts. The lower courts must follow their judgments. The more recent judgement should be followed when there is a disagreement between judgments rendered by courts having the same authority. The Supreme Court’s rulings are enforceable by all courts nationwide in accordance with Article 141 of the Indian Constitution. However, the Supreme Court does not have to follow its own judgments. The Supreme Court may depart from its earlier ruling in later instances if there are compelling reasons to do so.

Doctrine of Res Judicata

Res Judicata refers to subject matter that has been decided. According to this doctrine, unless new relevant facts have been discovered, the parties are prohibited from bringing up the same subject in court after a lawsuit has been resolved. They cannot present a different issue relating to the same claim because they could have done so in the earlier lawsuit.

Ratio Decidendi

Salmond defines a precedent as a court decision that has a legal concept and the ratio decidendi, which is an authoritative component. Ratio decidendi translates as decision’s rationale. Even though there is no statute or precedent pertaining to a matter, a judge must rule on it whenever he receives it for judgement. The rationale for the decision, also known as the ratio decidendi, is the principle that directs such a choice.

Obiter Dicta

The term obiter dictum means mere say by the way. This term is used to refer to statements of law that are not required for the case at hand. A judge may in the judgment of a case declare some legal principles to be applied in a hypothetical situation. It does not have much impact or authority. However, the subordinate courts are bound to apply the principles.

Prospective overruling:

The Supreme Court has the authority to reverse decisions made by subordinate courts by a different bench of justices with a larger number of judges than the prior bench. It is a contemporary practise that permits the court to fix its mistakes without having an impact on its prior dealings.

Types of precedents

Authoritative and Persuasive

Authoritative precedents are those that, whether or not they are accepted by lower courts, must be followed. They produce clear and unambiguous laws. They are considered to be legitimate sources of law. On the other hand, persuasive precedents don’t bound the judges to anything. The judge has the discretion to use persuasive precedents.

Authoritative precedents can be classified into the following two types:

Absolute authoritative

An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and it cannot be disobeyed even if it is wrong.

Conditional authoritative

A conditionally authoritative precedent is binding on other judges but it can be disregarded in certain special circumstances as long as the judge shows the reason for doing so.

Original and Declaratory

According to Salmond, a declaratory precedent is a precedent that simply declares an already existing law in a judgment. It is a mere application of law. An original precedent creates and applies a new law.

Factors increasing the authority of a precedent

The number of judges constituting the bench that makes the decision.
A unanimous decision has more weight.
Approval by other courts, especially the higher courts.
The enactment of a statute that carries the same law subsequently.

Factors decreasing the authority of a precedent

Abrogation of judgment by reversal or overrule of a higher court.
Abrogation of judgment by a statutory rule enacted subsequently.
Affirmation or reversal of decision on a different ground.
Inconsistency with the previous decision of a higher court.
Inconsistency with previous decisions of the court of the same rank.
Inconsistency with already existing statutory rules.
Erroneous decision.

Legislation as a source of law

Rules or laws passed by the government’s legislative branch are referred to as legislation. It is one of the most significant legal precedents in jurisprudence. Legislation is a combination of the Latin words latum, which means making, and legis, which means law.

Types of legislation

According to Salmond, legislation can be classified into two types- Supreme and Subordinate.

Supreme legislation

When passed by a supreme or sovereign law-making authority, legislation is referred to as being supreme. The body must possess sufficient authority such that the rules or laws it enacts cannot be overturned or changed by another body. Since the laws the Indian Parliament passes can be overturned in court, it cannot be regarded as a legally independent body. The British Parliament, on the other hand, is regarded as a sovereign legislative body since the legitimacy of the legislation it passes cannot be contested in a court of law.

Subordinate legislation

Subordinate legislation is referred to as legislation passed by a subordinate legislative body. A sovereign entity with the power to make laws must have delegated such power to the subordinate body. It is under the top legislative body’s supervision. The various types of subordinate legislation include the following:

Executive legislation: This is a form of subordinate legislation where the executive is granted or conferred certain rule-making powers in order to carry out the intentions of the legislature.
Colonial legislation: Many territories across the globe were colonised by Britain and such territories were called colonies. The legislation passed by the legislature of such colonies was subject to the control of the British Parliament.
Judicial legislation: Courts also have a role in enacting laws that aid in regulating the internal affairs and functioning of courts.
Municipal legislation: Municipal authorities also possess the law-making power as they enact bye-laws.
Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned with bodies like universities, corporations, clubs, etc.
Delegated legislation: Sometimes legislative powers may be delegated to certain bodies by the parliament through principal legislation. A principal act may create subsidiary legislation that can make laws as provided in the principal legislation.

Custom as a source of law

Custom is a code of behaviour that has the explicit blessing of the community that upholds it. There were no institutions that served as centers of power in prehistoric cultures. As a result, individuals began organising into strong social groupings in an effort to uphold justice, equality, and liberty. They ultimately began to recognise the customs and rituals that the society consistently followed and developed a systematised method of social control. Marriage and divorce laws in India are mostly derived from the practises of various religious communities. Additionally, a number of Scheduled Tribes communities have their own marriage-related traditions. As a result, Scheduled Tribes are exempt from the application of this Act under Section 2(2) of the Hindu Marriage Act of 1955.

Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments”. Themistes refers to the judicial awards dictated to the King by the Greek goddess of justice. The following are the different stages of development of law according to Henry Maine:

At the first step, law is made by rulers who are inspired by the divine. Rulers were believed to be messengers of God.
At the second stage, following rules becomes a habit of the people and it becomes customary law.
At the third stage, knowledge of customs lies in the hands of a minority group of people called the priestly class. They recognise and formalize customs.
The final stage is the codification of customs.

Types of customs

Customs without a binding obligation

There are social practises that people adhere to that are not governed by the law. These practises concern marriage, clothes, and other things. A social boycott rather than legal repercussions can be the only outcome of not complying by such customs.

Customs with a binding obligation

The term “customs having a binding obligation” refers to practises that must be complied with by law. They have nothing to do with customs or social norms. The two primary categories of customs that have legal requirements are legal customs and conventional customs.

Legal customs: The rules of law have no exceptions. They are legally binding and must be followed to avoid penalties. General customs and regional customs are two categories of legal customs. A state’s entire area is governed by general customs. Local practises, on the other hand, are unique to certain locations..
Conventional customs: Conventional customs are those that can only be followed if they are accepted by a contract. Such a custom is solely binding on the parties to the contract that incorporates it. General and regional conventional customs are two different categories of conventional customs. Across a territory, general conventional customs are followed. On the other hand, local conventional customs are limited to a certain location or to a specific trade or transaction.

Conditions for a valid custom: Certain conditions must be satisfied before a court is entitled to incorporate the usages into contracts.

The usage must be so well-established as to be notorious.
The usage must be reasonable.
Usage cannot alter the general law of land.
A usage should not nullify or vary the express term of the contract.

Requisites of Valid Custom: Following are the requisites for a valid custom, treated as law

Immemorial: For a custom to be legal, its antiquity must be established. Blackstone asserts that a custom must have existed for a very long time in order for it to be considered legitimate and binding. If anyone can trace the origin of the tradition, it is considered to be excellent custom.
Reasonable:A lawful custom must also be sensible, which is another need. The unreasonableness of a custom must be so great that its enforcement causes more harm than if there were no custom at all. Prof. Allen argues that custom’s unreasonableness, not its reasonableness, must be established..
Continuous: A custom must not continuously be observed and if it has not been continuously and uninterruptedly observed, the presumption is that it existed at all.
Peaceable enjoyment: The enjoyment of a custom must be a peaceable one.
Certainty: A valid custom must be certain and definite, if there is any ambiguities in it or it keeps changing, it is not a valid custom.
Compulsory Observance: If observance is required, a custom is considered valid. Observing anything optically is useless. A custom requiring all residents to contribute to the upkeep of a bridge will be beneficial, but one requiring each person to do so at his or her discretion is pointless and, in fact, is not a custom at all, according to Blackstone.
General Or Universal: The custom must be general or universal. In the absence of unanimity of opinion, custom becomes powerless or rather does not exist. A valid custom must not be opposed to public policy or the principles of morality.

Not Opposed With Statute Law:

a valid custom must conflict with the statute law of the country. According to Coke: No custom or prescription can take away the force of an Act of parliament.
According to Blackstone customs must be consistent with each other, one custom cannot be set up in opposition to another.

Theories of customs

There are two theories regarding the question as to when a question is transformed into law:

Historical theory
Analytical theory

(i) Historical theory: According to historical theory, the growth of law does not depend upon the arbitrary will of any individual. It does not depend upon any accident. It grows as a result of the intelligence of the people. Custom is derived from the common consciousness of the people. According to Puchta: Custom is not only self-sufficient and independent of state imprimatur but is a condition to all sound legislation.

Criticism: According to Paton: The growth of most of the customs is not the result of any conscious thought but of tentative practice. According to Allen: All customs cannot be attributed to the common consciousness of the people. In many cases, customs have arisen on account of the convenience of the ruling class.

(ii) Analytical theory: Austin, Holland, and Gray are the advocates of analytical theory. According to Austin: Customs is a source of law and not law itself. Customs are not positive laws until their existence is recognized by the decisions of the Courts. According to Holland: Customs are not laws when they arise but they are largely adopted into laws by state recognition.

Criticism: By Allen: Custom grows by conduct and it is therefore a mistake to measure its validity solely by the elements of express sanction, accorded by Courts of law or by other determinate authority.

Reasons for Custom are given the force of law: Following are the reasons, why custom is given the force of law:

Principles of National Conscience: Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public policy. According to Salmond: Custom is to society what laws are to the state. Each is the expression and realization of the measure of man, insight and ability, of the principles of right and justice.
Expectation of continuance: Another reason for the binding force of custom is the expectation of its continuance is the future. Justice demands that this expectation should be fulfilled and not frustrated.
Observance by a large number of people: Sometimes a custom is observed by a large number of persons in society and in course of time the same comes to have the force of law.
Interests of Society: Custom rests on the popular conviction that it is in the interests of society. This conviction is so strong that it is not desirable to go against it.
Useful to the law giver: According to Paton: Custom is useful to the law-giver and codifier is two ways. It provides that material out of which the law can be fashioned. There is a tendency to adopt the maxim that whatever has been an authority in the past is a safe guide for the future.

Difference between custom and prescription

The primary distinction between the two is that while prescription results in a right, custom results in legislation. Custom is typically followed as a standard of behaviour and is enforceable in law. A right or title is acquired by prescription. The prescription only applies to that specific person when a local custom affects society. For instance, when a person X’s ancestors have been freely grazing their cattle on a certain piece of land for years, X is granted the same permission to do the same. The privilege that X has obtained is known as a prescription. A prescription must be used consistently throughout time to be considered valid. In India, acquiring a right requires 20 years of continuous enjoyment.a right to light and air as per the Indian Easement Act, 1882.

Conclusion

In conclusion, there are various ways to categorise the sources of law in jurisprudence. The most noteworthy or typical classification, however, separates it into law, tradition, and precedent. The term “precedent” refers to earlier rulings by the courts. The statutory laws passed by the legislature are referred to as the legislation. The term “custom” describes the long-standing customs of a community that have become so entrenched in society that they have the status of law. Legislation is only the primary source, despite the fact that it appears to be the mechanism by which we obtain laws. Many of the regulations that exist now reflect the norms that our society has upheld for many years. Numerous cases also demonstrate how occasionally the law of the land is insufficient or unable to foresee the problems that might come up in subsequent disputes. As a result, the judiciary must clarify or interpret the law of the land and establish judicial precedents for various concerns.

Effects Of Non- Registration Of Trademarks

Introduction

A trade mark (popularly known as brand name in layman’s language) is a visual symbol which may be a word to indicate the source of the goods, a signature, name, device, label, numerals, or combination of colours used, or services, or other articles of commerce to distinguish it from other similar goods or services originating from another. It is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. Its origin dates back to ancient times, when craftsmen reproduced their signatures, or “marks” on their artistic or utilitarian products. Over the years these marks evolved into today’s system of trade mark registration and protection. The system helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trade mark, meets their needs.

Definition:

As stated above, the definition of “trade mark” under Section 2(1)(zb) has been enlarged to mean a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from others and may include shape of goods, their packaging and combination of colours and covers both goods and services.“Mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”. [Section 2(1)(m)].

Right To Exclusive Use The registration of a trademark shall give the registered proprietor of the trademark the exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered as per section 28(1) of the Act. In other words after the registration of a trademark no one other than its registered proprietor or permitted user, is entitled to use the said trademark in relation to the goods or services in respect of which the trademark is registered.

Registration To Be Prima Facie Evidence Of Validity As per section 31 of the Act, the original registration of the trademark and of all subsequent assignments and transmissions of the trademark shall be prima facie evidence of the validity thereof in all legal proceedings relating to a trademark registered under the Act.

Right To Sue For Infringement If a mark that is identical with, or deceptively similar to a registered trademark is used by a person other than the registered proprietor or a permitted user, in the course of trade, in relation to goods or services in respect of which the trademark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trademark, such person is said to have infringed the trademark according to section 29(1) of the Act.

The registered proprietor of the trademark has the exclusive right to sue for infringement of the trademark as per section 28(1) of the Act. Whereas per Section 27 (1) of the Act, no person shall have the right to sue for the infringement of an unregistered trademark. In a suit for infringement

In a suit for infringement of a trademark, the court could grant reliefs by way of an injunction order restraining the person who infringes the trademark from using the trademark and could also order the person who infringes the trademark to pay damages to the proprietor of the trademark for such infringement, according to section 135(1) of the Act.

The proprietor of a trademark has the option to register the same with the Registrar of Trademarks as per the provisions of the Act. Although registration is not mandatory, a registered trademark has certain advantages as opposed to an unregistered trademark. Thus, the effects of registration and non-registration of trademarks shall be discussed hereunder:

POSITION OF UNREGISTERED TRADE MARK

An unregistered trade mark may be assigned or transmitted with or without the goodwill of the business concern. Earlier such an assignment or transmission without goodwill used to be on a different footing. Section 39 of Trade Marks Act, 1999 has simplified the provisions in relation to assignment of unregistered trade mark without goodwill. It lays down that an unregistered trade mark may also be assigned with or without goodwill. Three conditions in Section 38(2) of Trade and Merchandise Marks Act, 1958 which were applicable on assignment of a trade mark without goodwill have been abrogated. Now, both unregistered and registered trade mark are subject to same conditions stated in Section 42, wherein such an assignee is required to apply to the Registrar within six months extendable by three months for directions with respect to advertisement. The assignee must issue the advertisement as directed for assignment to take effect, as the two limbs are cumulative.

Effect of non-use of Trademark:-

Trademark registration helps to establish an ownership’s to protect brand, logo of an entity or person. It help to distinguish your goods and services from other goods and services in the market. Result of Non-Use on Trademark both in India as well as in USA the main effect of non-use is removal of the trademark from the trademark registry. However, sometimes new goods or services are launched to the market using trademarks which have not been re-registered or which have not been used for a very long period of time. In such cases, most of the trademark proprietors keep quiet about the new trademark which infringes their existing mark because of the fear of the new user attacking the trademark on the ground of non-use and in such a case it would result in the trademark being completely removed from the registry. In India, rectification on the ground of non-use arises usually in the course of opposition proceedings or infringement action as a counterblast. Where the proprietor has not used the mark for more than five years and has not taken any steps to use it may tend not to object to the registration of similar marks by others or launch infringement proceedings.

The Hon’ble Supreme Court in the Kabushiki Kaisha Toshiba v. TOSIBA Appliances (2008) held that “The intention to use a trade mark sought to be registered must be genuine and real.” The division bench further explained that “when a trade mark is registered, it confers a valuable right. It seeks to distinguish the goods made by one person from those made by another. The person, therefore, who does not have any bona fide intention to use the trade mark, is not expected to get his product registered so as to prevent any other person from using the same.”

Recently in Proctor & Gamble Co. & Anr v. Shipra Laboratories (November, 2011), the Delhi High Court held that it is not in dispute that the defendant has been using the trade mark SAFE GUARD for sale of antiseptic creams. There is practically no difference between the trade mark SAFEGUARD and SAFE GUARD since no person is likely to notice the space between the words SAFE and GUARD…

The Supreme Court in Ramdev Food Products (P) Ltd. v. Arvind Bhai Rambai Patel, 2006 (8) SCC 726, held that a trade mark is the property of the manufacturer. The purpose of a trade mark is to establish a connection between the goods and the source thereof which would suggest the quality of goods. If the trade mark is registered, indisputably the use thereof by a person who is not otherwise authorised to do so would constitute infringement.

In M/s J K Oil Mills v. M/s Adani Wilmar Ltd., 2010 (42) PTC 639 (Del.), the Delhi High Court held that in order to constitute infringement under the provisions of Section 29 of the Trade Marks Act, it would be necessary to show that impugned trade mark (label) is identical or deceptively similar to the registered trade necessary to show that impugned trade mark (label) is identical or deceptively similar to the registered trade the impugned mark/label in respect of the goods and services which are not similar to those in respect of which the trade mark is registered.

Is the registration of a trademark compulsory?

No. Registration of a trademark is not compulsory. However, the registration is the prima facie evidence of the proprietorship of the trademark under registration.

Conclusion

A trade mark provides protection to the owner of the mark by ensuring the exclusive right to use it or to authorize another to use it in return for payment. Accordingly, both registered as well as unregistered trademarks are protectable in India by way of an infringement or passing off action in the court of law. The registration of a trade mark confers on the registered proprietor of the trade mark the exclusive right to use the trade mark in relation to the goods or services in respect of which the trade mark is registered.While registration of a trade mark is not compulsory, it offers better legal protection for an action for infringement

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Elements of Assault

Difference between Assault and Battery

Difference between Criminal and Civil Assault

Legal defenses on charges of Assault

Punishment for Assault

Remedies

Conclusion

Eligibility for filing FIR

Types of FIR

Importance of FIR

procedure to file an FIR in the police station:

Conditions that must be met to file FIR:

Conclusion

Honesty

Courage

Industry

Wit

Eloquence

Judgement

Fellowship

8th lamp of advocacy

Conclusion

Definitions of Constitution

Why is it called Indian Constitution

Who has written the Constitution of India?

Constitution of India – Preamble

Drafting committee of Indian constitution

Drafting committee members

The committees of Procedural affairs include:

Sources of Indian Constitution:

A. Constitution Of United States Of America:

B. British Constitution:

C. Constitution of Ireland:

D. Constitution of Canada:

E. Constitution of France:

F. The Constitution of the U.S.S.R (Union of Soviet Socialist Republic):

G. Constitution of Germany:

H. Australian Constitution:

I. Constitution of South Africa:

J. Constitution of Japan:

K. Government of India Act,1935:

Conclusion:

Nature of Right of Private Defence

When Private Defence Extends to Cause Death

The right of self-defence to cause death and the doctrine of necessity

What are the Exceptions to the rule of private defence? (Section 99) :

Right to private defence of body up to causing death

Section 101: When such rights extend to causing any harm other than death.

Case law for Section 101

Case law for Section 103

Case law for Section 104

Case law for Section 105

Conclusion

Hindu by Religion

Hindu by Birth

Convert or re-convert:

Conclusion

Marriage

Valid marriage(Sec.5) HMA

Void marriages (Nullity of Marriage)

What Is Annulment Of Marriage

Voidable Marriages

Marriage between Close Relatives

Nullity of marriage and divorce- Void marriages –

Bigamy –

Impotency –

Lack of Mental Capacity –

A Party was Under the Age of Consent –

Fraud or Force –

Unbeknownst Pregnancy:

A petition for annulment under Section 12 for nullity of a voidable marriage shall be allowed only if the following few conditions are fulfilled:

Rights of Children From Annulled Marriages

Annulment Process

Conclusion

Introduction

I. Procedural Law

Limitations of procedural laws

2. Substantive Law

Limitations of substantive laws

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