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Month: November 2022

Role of Forensic Expert Opinion in Indian Courts

Introduction

Forensic Science plays a very significant role in the detection of any crime; it acts as an aid/tool to the investigation process. It’s a science through which all physical evidences are collected and tested by forensic experts. It has been viewed as a last resort in many of the cases and the reports of forensic reports plays a very important role not only in terms of criminal justice system but also in terms of civil lis and other matters. Physical evidences should be collected from the scene of crime in a proper manner, so that experts should be able to conduct the tests of physical relevant evidences in the laboratories with proper reports.

There are many categories of forensic science which includes

Forensic medicine, Ballistics, Fingerprints, Question Documents, Voice Analysis, Narco-analysis, etc. There are various forensic laboratories wherein, all the tests are conducted. A year back in New Delhi, a former minister’s wife was found dead in a hotel in an unstable condition. In this case, forensic experts have played a very vital role; they have tested all the physical evidences, mainly, toxicology and pathology.

Thereby, it can be said that forensic science plays an important role as an aid to the courts to arrive to justice. This paper deals with the important question of the evidentiary value (relevancy) of forensic reports or opinion of experts or opinion of third party, in Indian Courts. It further deals with how the courts look into, while considering a forensic report of an expert and what grounds/criteria in cases are considered, where the courts ask for a forensic report.

Statutory provision under Indian Evidence Act, 1872

All the forensic reports or opinion of experts or opinion of third party when relevant, are admissible under Section 45 of the Evidence Act, 1872 (hereinafter referred to as the‘Act’), which reads as follows:

Sec.45: Opinions of experts.—When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting [or finger impressions] are relevant facts. Such persons are called experts.

Section 45 to Section 51 of the Act deals with the expert evidence.

Defining an expert

An expert is a person who has special knowledge related to some specific field, where he has devoted his time and has experience of the same. The Courts in India in plethora of cases, have described that an expert is someone who has such special knowledge which need not be imparted by any University. He is a person having skill or experience in any art, trade or profession, which has been acquired by practice, observation or careful study and which is beyond the range of common knowledge.  As per the law of Indian Evidence, the Court has to form an opinion on the following: foreign law, science, art and identity of handwriting (or finger impressions). The opinions given on the aforesaid aspects are all relevant facts and person who give these opinions are known as experts. In nutshell, an expert is someone who is skilled in any particular field and having special knowledge.

Judicial approach- An analysis

It has been seen in the past that the expert opinions have only been limited to medical opinions. But now with the development of forensic science and technology, it has certainly reached to such heights that the expert evidence is not limited to the medical opinions but also extends to experts in other relevant fields.  As far as, criminal law is concerned: ballistic experts, forensic experts, scientists, chemical examiners, psychiatrists, radiologists and even track-dogs are playing a very vital role in investigation of crimes and their evidence is admissible in the court of law. In plethora of cases, the Courts have asked for expert opinions.

Handwriting Expert: In the case of Devi Prasad v. State , (1967). 134, AIR .he Court held that evidence given by a person who has insufficient familiarity should be discarded. Indian Evidence Act insists that documents either be proved by primary evidence or by secondary evidence. Section 67 of the Indian Evidence Act prescribes the mode of proving the signature in a document.  As far as, the opinion as to handwriting is admissible only if the condition laid down in Section 47 is fulfilled, that is the witness is established to have been acquainted with the writing of the particular person in one of the modes enumerated in this section. The opinion of an expert in handwriting should be received with great care and caution and should not be relied upon unless corroborated as it has been held in the case of Punjab National Bank Ltd. v. Mercantile Bank of India Ltd.13 BOMLR, 835,

Scientific Evidence: The scientific evidence which is referred in Courts should be based either on some scientific theorem or hypothesis and such evidence is expected to be empirical and properly documented in accordance with scientific method such as is applicable to the particular field of inquiry. The norms and standards for evidence may vary according to whether the field of inquiry is among the natural sciences or social sciences. It is a fact that scientific evidence is demonstrative evidence unlike oral testimony, which depends on the deposition of a witness.

The validity of the scientific method used for fingerprinting and foot printing is accepted by the Courts. In Pritam Singh v. State of Punjab SC 415, CriLJ 805; disputed footprints in blood near a dead body and going towards the bathroom, were compared with those of the accused taken in printer’s ink.  The expert gave evidence giving points of nine similarities in respect of the right foot and ten in respect of the left foot and three dissimilarities only in each case and explained the dissimilarities with reference to the different densities of blood and ink. It was held that the comparison stood the test well and under the circumstances these foot impressions in blood near the place of the incident, were proved to be those of the accused.

The Footprint identification is reliable as the bare feet contain friction ridge patterns which are unique to each individual. Hence, the finger prints and footprints found at the scene of offence can be used to help identify the offender and also the victim. As far as science of identification of foot prints are concerned, the court has held that it is not a well-established fully developed science, if in any given case evidence is found satisfactory, it may be used only to reinforce the conclusions as to identify the culprit already arrived on the basis of other evidence. Reference may be given to the case of Mohd. Aman v. State of Rajasthan. SC 415, CriLJ 805

Medical Evidence: The courts have treated medical evidence as an important piece of evidence. DNA is one of the important medical blood test, where the paternity is a disputed question, the court has ample power to direct parties to undergo medical tests or give sample of blood for DNA to decide the paternity.

Deoxyribonucleic Analysis (DNA): Each person’s genetic makeup contains DNA. This differs from individual to individual. DNA can be obtained through blood, saliva, semen, or hair. This helps in identifying a person. If a drop of blood or a strand of hair is found at a crime scene, it can be compared to a person’s known DNA to see if there is a match, thereby linking the person to the crime. An expert witness can give an opinion about the likelihood that the blood that was found at the crime scene came from the individual whose sample was compared. DNA analysis is also used to establish paternity. Experts believe that the ability to link the culprit to the crime scene through his DNA prints is unquestionable as unlike conventional fingerprints that can be surgically altered, DNA is found in every tissue and no known chemical intervention can change it.

As far as paternity is concerned, now it has become very usual to direct the use of blood tests.  Blood groups according to the scientists have a causative relation between the trait of the progenitor and that of the progeny. In other words the blood compositor of child may be of some evidence as to the child’s paternity. The blood group tests are useful only to exclude the possibility that a man is the father. Sophisticated blood tests are now being adopted which are so advanced as capable of providing a very high or low probability of paternity. Tests made of the DNA can provide what can practically be regarded as certainty in paternity cases. See the case-laws below:

The Supreme Court in Goutam Kundu v. State of West Bengal 1993  AIR 2295, SCR(3) laid down guidelines governing the power of courts to order blood tests. The court held that: i. courts in India cannot order blood test as matter of course; ii. wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. iii. There must be a strong prima facie case in that the husband must establish nonaccess in order to dispel the presumption arising under section 112 of the Evidence Act. iv. The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. v. No one can be compelled to give sample of blood for analysis.”

But, the Supreme Court had advised against conduct of scientific tests of the nature of giving blood samples for the purpose of DNA testing in a routine manner but did not altogether ban their conduct upon third party.

In the case of Rohit Shekhar v. Narayan Dutt Tiwari & Anr 2012, 12 SCC 554, wherein, the issue of paternity was concerned and the Delhi High Court ordered the respondent to undergo a DNA test, as the petitioner was able to produce DNA evidence which excluded the possibility that his legal father was his biological father and the judgment of the High Court was upheld in the Apex Court. i. Now, if in case of any conflict between eyeevidence and the medical evidence, the court will have to go by the evidence which inspires more confidence. In case of contradiction between medical evidence and ocular evidence, medical evidence is not to be given primacy 2005 AIR, SC 44,. ii. The evidence of an eye-witness not to be discarded on strength of a medical opinion AIR 2008 SC 174

Typewriter Evidence: In State v. S.J. Choudhary 1966 SCC 428, the Hon’ble Supreme Court held that the word ‘science’ is wide enough to meet the requirement of treating the opinion of a typewriter expert as admissible evidence, coming within the ambit of Section 45 of the Evidence Act. The opinion of a typewriter was considered as relevant by the Court as an expert opinion and was relied upon as admissible to decide the case.

Polygraph, Brain-Mapping and Lie Detection: Generally stating, the Courts may refuse to admit the results of a polygraph test as evidence.

Polygraph test measures a person’s unconscious physiological responses which can be breathing, heart rate, and galvanic skin response, while the person is being questioned. It basically means that stress occurs when a person lies and that this stress is measured by changes in the person’s physiological responses. These tests are considered as unreliable because it is not possible to convey whether the stress measured during the test is caused by the test itself or not.

The Supreme Court of India with regard to these tests has held in Selvi v. State of Karnataka 2010 7 SCC 263, that it expressly invoked the right of privacy to hold these technologies unconstitutional. The court held that such techniques invaded the accused’s mental privacy which was an integral aspect of their personal liberty.

The Supreme Court after a thorough examination of the issue, directed that – “no individual should be forcibly subjected to any of the techniques in   question, whether in the context of investigation in a criminal case or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.”

However, the court, left the option open for voluntary submission to such techniques and held that the following ‘Guidelines framed for the Administration of Polygraph Test  (Lie Detector Test) on an Accused’ by the National Human Rights Commission should be strictly followed and the same guidelines should be adopted for ‘Narcoanalysis Technique’ and ‘Brain Electrical Activation Profile Test’. Therefore, these tests can be done with the adopted guidelines.

Ballistic Evidence: In case of Ballistic experts (Bullet marks), their opinion cannot be rejected merely on the basis, that expert has not taken the photographs of the cartridges. In S.G. Gundegowda v. Stat, the report of the ballistic expert was considered as admissible without calling him as a witness. In Rchhpal Singh v. State of Punjab , it was held that in cases where injuries are caused by fire arms, the opinion of ballistic experts play a lot of importance and failure to produce the expert opinion before the trial court effects the credit worthiness.

Judicial observations

In Mahmood v. State of U.P 1976 AIR SC 69, the court held that it is highly unsafe to convict a person on the sole testimony of an expert. Substantial corroboration is required 1992 Criminal Law Journal, 3987. Thereby, it is very evident that conviction cannot be granted only on the basis of forensic report of an expert.

In State of Maharashtra v. Damu Gopinath Shinde 2000 AIR SC 1691, the Supreme Court has held that without examining the expert as a witness in the court, no reliance can be placed on expert evidence.

In Malappa Sidappa Alakumar v. State of Karnataka 2009 AIR SC 2959, if there is a conflict between medical and ocular evidence, than ocular evidence shall be preferred over the medical evidence, in case ocular evidence is acceptable, trustworthy and reliable.

In this regard, it is worthwhile to remember the observations’ of Dr. Arijit Pasayat J., His Lordship very rightly observed, in the case of Ram Swaroop v. State of Rajasthan 2008 AIR SC 1747 that, “A doctor is usually confronted with such questions regarding different possibilities or probabilities of causing injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by witness to such questions need not become the last word on such possibilities. After all, he gives only his opinion regarding such questions. But to discard the testimony of an eye-witness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice”.

Recommendations and suggestions

It can be suggested and recommended that the expert from the medical field should be encouraged to undertake medico-legal work. It has been seen above that the medical experts have played a very vital role as an aid to help the Courts to arrive at a logical and well-defined conclusion. And now, scientific experts/forensic scientists are also playing a crucial role especially in criminal matters and the testimonies of expert evidence have been relied upon by the Courts. The concern regarding the need to involve more professionals in expert opinion/testimony has been felt by various organizations. This objective of greater expert participation can only be achieved by addressing the apprehensions of various experts and I suggest and believe that the government of the day should come up with more institute’s specialising in various fields of Forensic Science.

It is pertinent to refer to the report of Dr. Justice V.S Malimath Committee, which suggested various reforms in the criminal justice system. The committee suggested that forensic science should be used comprehensively in the investigation of crime. According to the Malimath Committee, the DNA experts should be considered and included in the list of experts as given under section 293(4) of the Indian Code of Criminal Procedure (CrP.C), 1973. 

Conclusion

The above research envisages that the discretion lies solely with the court to admit the forensic report of an expert. The reference may be given to the case of Krishan Chand v Sita Ram 2005 . AIR P & H 156, wherein there was a conflict of expert opinions’, it was held that it is the Court which is competent to form its own opinion with regard to signatures on a document.  It totally depends upon the facts and circumstances, and the opinion of the courts, which varies accordingly. As such, there is no provision in the Indian Evidence Act, 1872, which expressly states that expert evidence requires corroboration, but, practically stating as per my own experience; courts generally do not rely only on expert evidence, unless it is supported by other evidence. That is the reason, it has been observed by the Supreme Court of India in plethora of cases that it is highly unsafe to convict a person on the basis of sole testimony of an expert.

It is generally seen that in most of the cases, courts ask for the medical expert opinions. But practically stating, it is well settled that medical jurisprudence is not an exact science and it is indeed difficult for any medical expert to say with precision and exactitude as to when a particular injury was caused, so it is merely the duty of the expert to give his opinion. Thereby, it can be said as a general rule, the opinions of medical experts and other experts who has special skill in a particular field shall be admissible in the Court of law.

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Utilitarian Theory

The fundamental idea behind intellectual property rights is to safeguard human creations just like physical properties are protected. Theoretical understanding of intellectual property rights is essential for comprehending the rights granted and the justification for them. It’s interesting to note that although being a subset of intellectual property rights, trade secret law is very different from other intellectual properties.

This area of intellectual property exclusively deals with wrongfulness that is assessed by reference to independent legal rules and focuses primarily on specific obligations. Thus, trade secret law makes use of intellectual property theory. This article will provide a thorough analysis of the many trade secret protection ideas that have been developed by different philosophers with a purpose and an end in mind. The five theories covered in this article are;

  1. The natural rights theory has been constructed on the basis of John Locke’s idea.
  2. The utilitarian theory is based on the Benthamite ideal of “the greatest good for the greatest number.”
  3. The deterrence theory supports morality.
  4. The ethic and reward theory promotes the ethical and moral aspect of intellectual property rights.
  5. The personhood theory, which was propounded by Kant and Hegel. 

The utilitarian theory is based on the Benthamite ideal of “the greatest good for the greatest number.” The deterrence theory supports morality. The ethic and reward theory promotes the ethical and moral aspect of intellectual property rights. The personhood theory, which was propounded by Kant and Hegel.

The utilitarian institution proposes that the creators of intellectual property must be given adequate incentive and so it is also known as the incentive theory. Bentham opined that trade barriers to foreign imports restrict the increase of trade and commerce of a nation. He applied this concept with the intellectual property rights and believed that the creator must be given absolute privilege in order to recover the amount invested during the inventive process.

A utilitarian institution is one that benefits society. Act utilitarianism is a utilitarian ethical theory that holds that a person’s action is ethically good if and only if it results in the best outcomes in that particular circumstance. The foundation of all utilitarian theories is the principle of utility, which is best described by Jeremy Bentham’s phrase, “the greatest happiness for the greatest number.” Act utilitarianism is built on this premise. According to the article, the existence of intellectual property laws benefits society overall. The economic success of the nations will be used to judge its validity.

This idea, which is supported by economists like Bentham and Mill, makes the assumption that any policy should aim to provide the greatest good for the largest number of people. Utilitarian justifications, however, can be used to support or refute claims of intellectual property rights. The utility gains from greater innovation incentives must be compared to the costs of monopolization and their reduced dispersion. The issue then emerges since it is impossible to compare the advantages to the losses incurred.

Such theories have never been as effective as we would have thought. The economists have a complaint. They contend that the development of a monopoly right occurs when exclusive rights are granted to intellectual property. A market that is totally competitive contrasts monopoly. Monopoly will lead to market crushing if it is unchecked. Whenever the law gives an exclusive right to the innovator, the right holder is not enabled to control the problem. There are so many ways of resolving a problem. That means there is no intellectual property law which prohibits other innovators from innovating a solution to the same problem.

Conclusion:

The society gains from the development and growth as and when an individual produces a product or there is technological innovation inside a community. Since this development contributes to and makes society happier as a whole, it is important to support and encourage this kind of invention and production. Giving the inventor exclusive rights will motivate him because he has worked hard to uplift society and bring joy to as many people as possible. This will not only inspire him to work harder, but it will also give him the confidence that he and his contributions are regarded and valued as they ought to be. Therefore, it is expected that the government or administration will give these rights and acknowledge their accomplishments.

However, while creating and designing the work, the cost of production might be too high. So, the incentive given to the creator might not be sufficient enough to cover the costs incurred. This might discourage the creator as well, thus, preventing him to further experiment and produce

Protection of Plant Varieties and Farmers’ Rights Act, 2001


Introduction

In order to provide for the establishment of an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants it has been considered necessary to recognize and to protect the rights of the farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties. The Govt. of India enacted “The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001” adopting sui generis system. Indian legislation is not only in conformity with International Union for the Protection of New Varieties of Plants (UPOV), 1978, but also have sufficient provisions to protect the interests of public sector breeding institutions and the farmers. The legislation recognizes the contributions of both commercial plant breeders and farmers in plant breeding activity and also provides to implement TRIPs in a way that supports the specific socio-economic interests of all the stakeholders including private, public sectors and research institutions, as well as resource-constrained farmers.

Objectives of the PPV & FR Act, 2001

  1. To establish an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.
  2. To recognize and protect the rights of farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties.
  3. To accelerate agricultural development in the country, protect plant breeders’ rights; stimulate investment for research and development both in public & private sector for the development new of plant varieties.
  4. Facilitate the growth of seed industry in the country which will ensure the availability of high quality seeds and planting material to the farmers.

Rights under the Act

  1. Breeders’ Rights : Breeders will have exclusive rights to produce, sell, market, distribute, import or export the protected variety. Breeder can appoint agent/ licensee and may exercise for civil remedy in case of infringement of rights.
  2. Researchers’ Rights : Researcher can use any of the registered variety under the Act for conducting experiment or research. This includes the use of a variety as an initial source of variety for the purpose of developing another variety but repeated use needs prior permission of the registered breeder.
  3. Farmers’ Rights
    • A farmer who has evolved or developed a new variety is entitled for registration and protection in like manner as a breeder of a variety;
    • Farmers variety can also be registered as an extant variety;
    • A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001 in the same manner as he was entitled before the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001;
    • Farmers are eligible for recognition and rewards for the conservation of Plant Genetic Resources of land races and wild relatives of economic plants;
    • There is also a provision for compensation to the farmers for non-performance of variety under Section 39 (2) of the Act, 2001 and
    • Farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or the Tribunal or the High Court under the Act.

Implementation of the Act

To implement the provisions of the Act the Department of Agriculture, Cooperation and Farmers Welfare, Ministry of Agriculture and Farmers Welfare established the Protection of Plant Varieties and Farmers’ Rights Authority on 11″ November, 2005. The Chairperson is the Chief Executive of the Authority. Besides the Chairperson, the Authority has 15 members, as notified by the Government of India (GOI). Eight of them are ex-officio members representing various Departments/ Ministries, three from SAUs and the State Governments, one representative each for farmers, tribal organization, seed industry and women organization associated with agricultural activities are nominated by the Central Government. The Registrar General is the ex-officio Member Secretary of the Authority.

General Functions of the Authority

  1. Registration of new plant varieties, essentially derived varieties (EDV), extant varieties;
  2. Developing DUS (Distinctiveness, Uniformity and Stability) test guidelines for new plant species;
  3. Developing characterization and documentation of varieties registered;
  4. Compulsory cataloging facilities for all variety of plants;
  5. Documentation, indexing and cataloguing of farmers’ varieties;
  6. Recognizing and rewarding farmers, community of farmers, particularly tribal and rural community engaged in conservation and improvement;
  7. Preservation of plant genetic resources of economic plants and their wild relatives;
  8. Maintenance of the National Register of Plant Varieties and
  9. Maintenance of National Gene Bank.

Registration of varieties

A variety is eligible for registration under the Act if it essentially fulfills the criteria of Distinctiveness, Uniformity and Stability (DUS). The Central Government issues notification in official Gazettes specifying the genera and species for the purpose of registration of varieties. So far, the Central Government has notified 157 crop species for the purpose of registration.  To access the list,

The PPV&FR Authority has developed

tests or “Specific Guidelines” for individual crop species.

To know the time limit for registration of extant varieties,  .

To know the registration process, 

Fees for registration

Application for registration of plant varieties should be accompanied with the fee of registration prescribed by the Authority. Fee for registration for different types of variety is as under:

S.NoTypes of VarietyFees for Registration
1Extant Variety notified under section 5 of the Seeds Act, 1966Rs 2000/-
2.New Variety/Essentially Derived Variety (EDV)/ Extant Variety aboutwhich there is common knowledge (VCK)Individual Rs. 7000/-Educational Rs.10000/-Commercial Rs.50000/-
3.Farmers VarietiesNo Fee

The Registration of a variety is renewable subject to payment of annual and renewal fee as notified in the Plant Variety Journal of India of the Authority and Gazette of India dated 15.06.2015.

DUS Test Centers

Authority has notified DUS test Centers for different crops with a mandate for maintaining and multiplication of reference collection, example varieties and generation of database for DUS descriptors as per DUS guidelines of respective crops. To access the list of DUS test Centers, 

Certificate of Registration

The certificate of registration issued will be valid for nine years in case of trees and vines and six years in case of other crops. It may be reviewed and renewed for the remaining period on payment of renewal fees subject to the condition that total period of validity shall not exceed eighteen years in case of trees and vines from the date of registration of the variety, fifteen years from the date of notification of variety under the Seeds Act, 1966 and in other cases fifteen years from the date of registration of the variety.

Benefit Sharing

The benefit sharing is one of the most important ingredients of the farmers’ rights. Section 26 provides benefits sharing and the claims can be submitted by the citizens of India or firms or non-governmental organization (NGOs) formed or established in India. Depending upon the extent and nature of the use of genetic material of the claimant in the development of the variety along with commercial utility and demand in the market of the variety breeder will deposit the amount in the Gene Fund. The amount deposited will be paid to the claimant from National Gene Fund. The Authority also publishes the contents of the certificate in the PVJI for the purpose of inviting claims for benefits sharing.

Rights of Community

  1. It is compensation to village or local communities for their significant contribution in the evolution of variety which has been registered under the Act.
  2. Any person/group of persons/governmental or non- governmental organization, on behalf of any village/local community in India, can file in any notified centre, claim for contribution in the evolution of any variety.

Convention countries

Convention country means a country which has acceded to an international convention for the protection of plant varieties to which India has also acceded or a country which has law of protection of plant varieties on the basis of which India has entered into an agreements for granting plant breeders’ rights to the citizen of both the countries. Any person if applies for the registration of a variety in India within twelve months after the date on which the application was made in the convention country, such variety shall, if registered under this Act, be registered as of the date on which the application was made in convention country and that date shall be deemed for the purpose of this Act to be the date of registration.

Plant Varieties Protection Appellate Tribunal

There is transitory provision by which it is provided that till the PVPAT is established the Intellectual Property Appellate Board (IPAB) will exercise the jurisdiction of PVPAT. Consequently the Plant Varieties Protection Appellate Tribunal (PVPAT) has been established by appointing Technical Member. All orders or decisions of the Registrar of Authority relating to registration of variety and orders or decisions of the Registrar relating to registration as agent or licensee can be appealed in the Tribunal. Further, all orders or decisions of Authority relating to benefit sharing, revocation of compulsory license and payment of compensation can also be appealed in the Tribunal. The decisions of the PVPAT can be challenged in High Court. The Tribunal shall dispose of the appeal within one year.

law and its kinds

Introduction

The term  “Law’ denotes different kinds of rules and Principles. Law is an instrument which regulates human conduct/behavior. Law means Justice, Morality, Reason, Order, and Righteous from the view point of the society. Law means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of legislature. Law means Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the point of view of Judges. Therefore, Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

Meaning of Law

In old English “Lagu” i.e. law, ordinance, rule, regulation from old norse “lagu” law collective Plural of “Lag” is layer, measure, stroke ‘Literally’ something laid down of fixed. The term law has different meanings in different Places/societies at different times (as it is subject to amendments). In Hindu religion law implies “Dharma” in Muhammadean religion (Islam) it is “Hokum” in Roman its “Jus”, in French, its “Droit” in Arabic, Alqanoon, in Persian and Turkish, its Kunoon, in Latin its “Legam” in Philipino its “Batas” in Albanian language its “Ligj” in Czech its “Zakon” in Danish its “Lor” in Dutch its “Wet” in Italian its “Legge” and in Lithuanian its “Teise” and so on. It varies from place to place in the sense adultery is an offence in India (under section 497 of the Indian penal code, 1860) while it is no offence in America. Law differs from religion to religion in the sense personal laws viz. Hindu law, Muslim law etc. differ from one another.

For instance, A Muslim can have four wives living at a time, but, a Hindu can have only one wife living at a time (Monogamy). If a Hindu male marries again during the life time of first wife he is declared guilty of the offence of bigamy and is Punishable under sec. 494. The law is subject to change with the change in society and also change in the Government/legislative through the amendments/Acts.

Generally the term law is used to mean three things:

First it is used to mean “legal order”. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society.

Secondly, law means the whole body of legal Percepts which exists in a politically organized society.

Thirdly, law is used to mean all official control in a politically organized society. This lead to actual administration of Justice as contrasted with the authoritive material for the Guidance of Judicial action. Law in its narrowest or strict sense is the civil law or the law of the land.

Definitions of law:-

It is very difficult to define the term law. Many Jurists attempted to define the term law. For the Purpose of clarity, some of the definitions given by Jurists in different Periods are categorized as follows.

 

Origin of law

A civil code that was possibly divided into twelve volumes existed in ancient Egyptian law as early as 3000 BC. By the 22nd century BC, an ancient Sumerian king named Ur-nammu created the first law code, which was composed of casuistic statements (if…then…) and was based on the concept of Ma’at, which was characterised by traditional rhetorical discourse, social equality, and impartiality. King Hammurabi codified and carved Babylonian law into stone in 1960 BC, furthering its development. Hammurabi distributed several copies of his legal code as Stelae around the Babylonian realm; this is how the codex came to be known. Hammurabi.

Ancient China and India each had unique schools of legal thought and practise and represent distinct legal traditions. When India joined the British Empire, common law replaced Islamic law and the influential Hindu treatises The Arthashastra and the Manusmriti, which date from 400 BC and 100 BCE respectively. Singapore, Hong Kong, Malaysia, Brunei, and Brunei have all embraced common law. Japan was the first nation to start updating its legal system in accordance with western norms by importing elements of the French Civil Code, but mostly the German Civil Code. Similar to how ancient Chinese law lost way to westernisation in the dynastic final years, six private law codes largely based on German law in Japan were adopted.

The development of Islamic law and jurisprudence was one of the main legal systems that took place during the Middle Ages. “Hawala” was an early informal transfer method during the classical era of Islamic law and jurisprudence. It is mentioned in texts of Islamic jurisprudence as early as the 8th century. Later, the Hawala itself had an impact on the creation of the “Aval” in French civil law and the Avallo in Italian law. Greek teachings had a significant influence on Roman law.

Nature of law

What is the nature of law? In the modern era, this subject has taken centre stage in legal theory and philosophy, and it is the main focus of modern analytic legal theory. The goal of this entry in the legal theory Lexicon is to provide a summary of the “what is law” controversy.

Historical way

In the past, there have been two opposing theories put forward as to what law is. Natural law theory, which is generally characterised as stating that there is an intrinsic connection between law, morality, and justice, offers the traditional response.

Modern way

The modern answer is provided by legal positivism, which as developed by John Austin, asserted that law is the command of the sovereign backed by the threat of punishment.

A revised set of positions are at the centre of current discussions about the essence of law. Analytical legal positivists like H.L.A Hart, Joseph Raza, and Jules Coleman are advocates of legal positivism. John Punis defines the natural law tradition, and the late Ronald Dworkin’s work exemplifies the new position of interpretivism..

In some ways, the title of this lexicon entry is misleading because of focus on the “what is law” question as it has been approached by contemporary legal philosophers.

There are other important perspectives on the nature of law that focus on law’s functions rather than the meaning of the concept for criteria of legal validity.

For example, the sociological tradition includes important work on the nature of law by Max Weber and Niklas Lahumann. These issues are discussed by Brian Tamanaha in a very clear way.

This lexicon entry maps the territory of the “what is Law”? Controversy, and provides introductory sketches of the major positions as always, the lexicon is written for law students.

Functions of law

Laws provide the standards by which we should live if we wish to be a part of society. Humanity has had laws or other means of self-government ever since the dawn of civilisation. Law established guidelines and restrictions for society so that we might live in freedom, provided justice for those who had been harmed, and shielded us from our own government..

Most importantly the law also provides a mechanism to resolve disputes arising from those duties and rights and allows parties to enforce promises in a court of law (Corley and Reed 1986 P.A)

According to Corley and Reed (1986) law is a body of rules of action or conduct Prescribed by controlling authority, and having legal binding forces.

Laws are created because it helps prevent chaos from happening within the business environment and as well as society. In business law sets guide lines regarding employment regulatory, compliance, even inter office regulations.

Kinds of law

Law is used in different senses. The use of the term “law” is made in various senses. It denotes different kinds of rules and Principles.

Blackstone says “law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether, animate, rational, irrational. Thus we say the law of motion of gravitation of optics or Mechanics, as well as the law of nature and nations” it is helpful in understanding the different senses in which “law” is used in various fields of knowledge.

Kinds of law by Sir Jhon Salmond

Sir John Salmond refers to eight kinds of law

1. Imperative law

2. Physical or scientific law

3. Natural or moral law

4. Conventional law

5. Customary law

6. Practical or technical law

7. International law, and

8. Civil law

1. Imperative law

Imperative law means a rule of action imposed upon by some authority which enforces  obedience to it. In other words it is a command enforced by some superior power either physically or in any other form of compulsion.

Kinds of Imperative law:-

There are two kinds of imperative law, Divine or human

1. Divine laws

2. Human laws

1. Divine laws are consists of the commands imposed by God upon men either by threats of Punishment or by hope of his blessings.

2. Human laws are the laws by analogy Sir Jhon Salmond classifies Human Laws into four sub classes

1. Imperative law imposed and enforced by State is called “Civil law”

2. Imperative law imposed and enforced by members of society is “Moral law”

3. Those imposed and enforced by different institutions or autonomous bodies like Universities, airline companies etc they are called “Autonomic law”

4. Those imposed upon States by the society of States are called “ International law”

2. Physical or scientific law

Physical laws are the expressions of the

1. Uniformities of nature and General Principles Expressing the

2. Regularity, and

3. Harmony observable in the activities and operations of the universe.

They are not the creation of men and cannot be changed by them. Human laws change from time to time and from country to country but physical laws are invariable forever. The uniform actions of human beings, such as law of psychology, also fall into this class they express not what man ought to do, but what they do.

3. Practical or Technical law:-

It consists of Principles and rules for the attainment of certain ends e.g. laws of health, laws of architecture. These rules guide us as to what we ought to do in order to attain certain ends.

4. Natural or Moral law:-

It has various other names such as, “the Moral law” “Divine law” “God Law” ‘universal or eternal law and “law of reason” etc. “by natural law is meant the principles of natural right and wrong (the Principles of natural Justice)”.

Natural laws have been called

Divine law:- commands of God imposed upon men.

Law of Reason i.e. being established by that reason by which the world is Governed.

Unwritten law:- (as being written not an brazen tables or a pillar of stone but by the finger of nature in the hearts of people. universal or common law (being of universal validity)

Eternal law (being uncreated and invariable)

Moral law (being the expression of the Principles of morality)

5. Conventional law:-

It is the body of rules agreed upon and followed by the concerned parties to regulate their mutual conduct. It is form of special law and law for the parties which can be made valid or enforced through an agreement.

A Good example of the conventional law is the International law, laws of cricket or any other game, rules of club. It has been father divided into two groups which are:-

1. Rules enforced by the parties themselves but not recognized by the State e.g. the rules of hokey

2. Rules which are recognized and enforced by the State, e.g. contract etc.

6. Customary law:-

Customary laws are those rules of custom that are habitually followed by the majority of the persons subject to them in the belief of binding nature.

According to Salmond, customary law means “any rules of action which is actually observed by men (any rule which is the expression of some actual uniformity of voluntary action) “when a custom is firmly established it is enforced by the authority of the State. Custom is not law by itself but an important source of law only those customs acquired the force of law, which are recognized by the courts.

7. International law:-

According to “Hughes” international law is the body of Principles and rules which civilized States consider as binding upon them in their mutual relations. “ it can be as the name for the body of customary and conventional rules, which are considered legally binding by civilized States in their intercourse with each other”. According to Salmond it is considered of these rules which the sovereign States have agreed to observe in their dealings with one another.

International agreements are of two types:

They are either expressed or implied.

Express agreements are contained in treaties and conventions, while implied agreements are to be found in the custom or practice of the States. International law is of two kinds:

I: Public International law: It prevails universally all over the world.

II: Private International Law: It is enforced only between some of States.

8. Civil Law

It is the law of the States regarding the land “Civil Law” according to the Salmond , is “the law of State of or the law of the land, the law of lawyers and the law of the courts”. Civil law is the positive law, or law of the land which means the law as it exists. It is backed by the force and might of the State for purposes of enforcement. Civil law differs from special law as the latter applies only in special circumstances the other term is used for the civil law is Municipal

Law and national law.

 CLASSIFICATION OF LAW

Etymological meaning of classification is “the process of putting something into category” or the basic cognative process of arranging into classes or categories. For a proper and logical understanding of law its classification becomes necessary. As it elucidates the way of systematic logical structure of the legal order. It explicates the inter relation of rules and their effect to each other. It analysis the law that intern is helpful in codification of laws it is an arrangement of rules in a concise and systematic way.

Original and Meaning of the Classification of Law

Notion of classification is very old. Classification was first made by Roman Jurists. The ancient Hindu Jurists also laid down eighteen titles or heads of “Vyavahara” civil law. The distinguished civil and criminal law and classified crime law under various heads.

There are two limitations in classification of law first; any classification will have only a relative value and no universal principle or rules can be laid down for it.

With the onward march of time, old rule changed their nature and the field of application and new rules based on different Principles come into existence.

Therefore, a new classification becomes necessary. Roman Jurist analyzed law in old times but that classification is Vague to present world.

Second, any classification made keeping in view the law of a Particular community or nation is not applicable to the law of any other Community or nation.

For Example; if one commits a breach of promise to marry, in English law, it falls under contract, but in French law it falls under delict. So, it’s not possible to discuss the classifications given by various Jurists, only a General Classification shall be given which has been adopted by most of Jurists of the modern times.

Classification of Law

(1) International Law, and

(2) Municipal or National law

International law:- The Present form of international law is of recent origin some earlier Jurist were of the view that the international law is not law as it lacked many elements which law should have. Austin and his supporters were of this view. Some says international law is law and it is superior to the municipal law Kelson supports this view.

What is International Law?

The legal Process that concerns legal relations among nations is called international law. Belief and experience some form international law dates from at least the days of the Roman Empire.

The united nation is are of the Primary mechanism that articulate and create international law.

The major sources of international law are multilateral Treaties, international custom and such General Principles as are recognized by civilized nations.

According to some Jurists international law may be divided into two classes.

(1) Public international law, and

(2) Private international law

(1) Public international law is that body of rules which govern the conduct and relations of States with other, really speaking; the term international law is  used for this class of law.

(2) Private international law means those rules and Principles according to  which the cases having foreign element are decided for example, if a contract is made between an Indian and Pakistani and it is to be performed the rule and Principles on which the rights and liabilities of the Parties would be determined would be called Private international law. This class of law is called “Conflict of laws” also. After knowing the field of application of this class of law, it is clear that the adjective “international” is wrongly given to it because it applies to individuals and not to States and these rules and Principles (called Private international law) vary from State to State and thus lacked uniformity. This class of law is enforced by municipal courts which administer municipal law and not international law, so, such a law does not process the characteristics of international law.

In modern times this class of law has gained much importance and every States has made rules for its administration. Therefore, it must be properly classified. It is submitted that it should be given the name “Conflict of Laws” and not private international law and should be treated as a branch of municipal Private law and should be classified as such.

4. The Municipal law, Law of land, Civil law, or law applied within a State is divided into two classes:-

(A) PUBLIC LAW

(B) PRIVATE LAW

A) PUBLIC LAW:- The State activities are largely regulated by Public law. It determines and regulates the organization and functioning of the State and determines the relation of the State with the subject. public law may be divided into three classes:-

(A) Constitutional law

(B) Administrative law and

(C) Criminal law

(A) Constitutional law: By constitutional law is meant that law which determines the nature of the State and the Structure of the Government. It is above and superior to the Ordinary law of the land. Constitutional law is the basic law or fundamental law of the State. The constitutional law may be written as in India or unwritten as in England. In modern times there is tendency to adopt written constitution.

(B) Administrative Law:- Administrative law deals with the structures powers and the functions of organs of the administration, the limits of their Powers, the methods and Procedures followed by them in exercising their powers and functions; the methods by which there power are controlled including the legal remedies available to a person against them when his rights are infringed by their operation.

(C) Criminal law:- Criminal law defines offences and prescribes punishment for them. Its aim is the prevention of and punishment for offences. Criminal law is necessary for the maintenance of order and peace within the State. In civilized societies crime is considered to be wrong not only against the individual (who has been wronged) but a wrong against the society. Therefore, the State initiates the proceedings against the offender, and thus it is always a party in criminal cases.

This is why the criminal law is considered as a branch of public law.

(D) Private Law: – This branch of law regulates and governs the relations of citizens with each other. The parties in such cases are private individuals and the State through its judicial organ adjudicates the matters in dispute between them. In these cases the State takes the position of only an arbiter. But it does not mean that the State regulates all the conducts and relations of the citizens but regulates only such of them as are of public importance and these relations (which State regulates) constitute the civil rights of the citizens. The major part of municipal law consists of this branch of law but in Totalitarian States the public law regulates the major part of the social life.

In the Classification of private law there is great difficulty. Different Jurists have given different classification, a very General classification is as follows:-

1. The law of Persons

2. The law of Property

3. The law of obligations

4. The conflict of laws

The law of obligations is divided into three classes.

(i) Contract

(ii)Quasi contract, and

(iii) Tort

The classification is only substantive law. The procedural law and Evidence are also the branches of the Private law.

A chart Presenting the above classification is as below:-

 Law

State law/national law international law

Public law private law

Constitutional law Administrative law criminal law

Law of Person law of Property law of obligations the conflict of laws

Contract Quasi-contract Tort

Above classification defective: –

The above classification of law has many defects. Many of the classes do not exist in many legal system at all some branches of law which has developed in recent years cannot be put under any one class exclusive.

Conclusion

Jurisprudence deals with the law as its subject. In its broadest meaning, law denotes a system of rules governing the cosmos, things, events, or behaviour. Any rule of action, or any norm or pattern to which acts are supposed to be confirmed, is a law in the broadest sense. It has been attempted by various jurists at various periods to define the term “law,” but it is quite challenging to come up with an exact definition. Old definitions placed a strong emphasis on religious components of life, which are no longer relevant today. Law is a notion that changes with time; its goals and functions have changed over time.

LAW

Introduction

The term “Law’ denotes different kinds of rules and Principles. Law is an tool which regulates human conduct/behavior. Law approach Justice, Morality, Reason, Order, and Righteous from the view factor of the society. Law approach Statutes, Acts, Rules, Regulations, Orders, and Ordinances from factor of view of legislature. Law approach Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the factor of view of Judges. Therefore, Law is a broader time period which incorporates Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

 Generally the term law is used to mean three things:


First it’s far used to intend “legal order”. It represents the regime of fixing relations, and ordering behavior through the systematic software of the pressure of prepared political society. 

Secondly, regulation method the complete frame of legal Precepts which exists in a politically prepared society. 

Thirdly, regulation is used to intend all professional manipulate in a politically prepared society. This cause real management of Justice as contrasted with the authoritative fabric for the Guidance of Judicial action. Law in its narrowest or strict experience is the civil law or the law of the land.

Definitions of law

It is very difficult to define the term law. Many Jurists attempted to define the term law. For the Purpose of clarity, some of the definitions given by Jurists in different Periods are categorized as follows

(I) Idealistic Definitions:-

Romans and other ancient Jurists defined law in its idealistic nature. Roman Justinian’s defined law in the light of its idealistic nature.

(a) Salmond: – According to salmond “the law may be defined as the body of principles recognized and applied by the state in the administration of Justice. Criticism of Salmond’s definition of law:- Salmond did not define the expression Justice. Keeton says what has been considered to be just at one time has frequently not been so considered at another. 

Criticism by Dean Roscoe Pound: – Dean Roscoe Pound has criticized the definition of Salmond as reducing law to a mass of isolated decisions and the law in that sense to be an organic whole. Further, it is criticized on the ground that Salmond’s definition applies only to lax law not to Statute. Despite criticism, Salmond’s definition is considered as the workable definition. 

(b) John chipman Gray’s Definition of Law:– According to Gray, “the Law of the State or of any organized body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of legal rights and duties. Criticism of Gray’s definition of law:- Gray’s definition is criticized on the Ground that he is not concerned with the nature of law rather than its Purposes and Ends. Further it does not take into account the statute law.

(ii) Positivists definition:-

 (a) Austin’s definition of law” John Austin (1790-1859) An English Jurists expounded the concept of analytical positivism, making law as a command of sovereign backed by sanction. He developed logically, a structure of the legal system in which he gave no Place to values, morality, idealism and Justice. 

According to Austin, a law, in the strict sense, is a general command of the sovereign individual or the sovereign body. Issued to those in subjectivity and enforced by the physical power of the state. According to Austin “law is an aggregate of rules set by men politically superior or sovereign to men as politically subject.” Austin says, “A law is command which obliges a person or persons to a course of conduct.

 Criticism of Austin’s definition of law:- Austin’s definition of law is subjected to criticism on the ground that it completely ignores the moral and ethical aspects of law and unduly emphasizes the imperative character of law.

 (b) Holland’s definition of law

Thomas Erskine Holland, a reputed Jurist, who followed the Austin’s concept and nature of law attempted to define law as law is a General rule of external human action enforced by a political sovereign. Holland also measures or defines law with preference to sovereign devoid of moral, ethical or ideal elements which are foreign to law and Jurisprudence.

 (c) John Erskine definition of law Law is the command of a sovereign, containing a common rule of life for his subjects and obliging them to obedience.

 (c) Hans Kelsan’s definition of Law According to Kelsan legal order is the hierarchy of the norms, every norm derives its validity from the superior norm and finally there is the highest norm known as grundnorm. 

(d) H.L.A.Hart According to Hart Law is the combination of primary rules of obligations and secondary rules of recognition.

Conclusion

Jurisprudence deals with the law as its subject. In its broadest meaning, law denotes a system of rules governing the cosmos, things, events, or behaviour. Any rule of action, or any norm or pattern to which acts are supposed to be confirmed, is a law in the broadest sense. It has been attempted by various jurists at various periods to define the term “law,” but it is quite challenging to come up with an exact definition. Old definitions placed a strong emphasis on religious components of life, which are no longer relevant today. Law is a notion that changes with time; its goals and functions have changed over time.

International court of justice

The International Court of Justice (ICJ) is the principal judicial body of the United Nations. The role of the ICJ is to settle, in accordance with international law, legal disputes submitted to it by States, and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

  • ICJ was established in 1945 by the United Nations charter and started working in April 1946.
  • It is the principal judicial organ of the United Nations, situated at the Peace Palace in The Hague (Netherlands).
  • Unlike the six principal organs of the United Nations, it is the only one not located in New York (USA).
  • It settles legal disputes between States and gives advisory opinions in accordance with international law, on legal questions referred to it by authorized United Nations organs and specialized agencies.
  • It has 193 state parties and current President is Joan E. Donoghue.

The firsts of International Court of Justice:

  • The election of first members of the International Court of Justice took place on February, 1946.
  • The first elected president of International Court of Justice was José Gustavo Guerrero of El Salvador. He was also the last president of Permanent Court of International Justice.
  • The first case of International Court of Justice was submitted in May 1947.
  • The first nation to submit the case was United Kingdom against Albania concerned to the incidents of the Corfu Channel

Role of the Court

The Court has a twofold role:

  1. to settle, in accordance with international law, legal disputes between States (contentious function); and
  2. to give advisory opinions on legal questions referred to it by duly authorized UN organs and agencies (advisory function).
  • Article 33 of the United Nations Charter lists the negotiation, enquiry, mediation etc. methods for the pacific settlement of disputes between States. Some of these methods involve the services of third parties.
  • Historically, mediation and arbitration preceded judicial settlement. The former was known in ancient India and the Islamic world, whilst numerous examples of the latter can be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe, and in Papal practice.
  • The modern history of international arbitration:
    • The first phase is generally recognized as dating back from the so-called Jay Treaty of 1794 between the United States of America and Great Britain.
    • The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second, even more decisive, phase.
    • The Hague Peace Conference of 1899, convened on the initiative of the Russian Czar Nicholas II, marked the beginning of a third phase in the modern history of international arbitration.
  • With respect to arbitration, the 1899 Convention provided for the creation of permanent machinery, known as the Permanent Court of Arbitration, established in 1900 and began operating in 1902.
  • The Convention also created a permanent Bureau, located in The Hague, with functions corresponding to those of a court registry or secretariat, and laid down a set of rules of procedure to govern the conduct of arbitrations.
  • Various plans and proposals submitted between 1911 and 1919, both by national and international bodies and by governments, for the establishment of an international judicial tribunal, which culminated in the creation of the Permanent Court of International Justice (PCIJ) as an integral part of the new international system set up after the end of the First World War.
  • In 1943, China, the USSR, the United Kingdom and the United States issued a joint declaration recognizing the necessity “of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security”.
  • Subsequently, G.H. Hackworth (United States) committee was entrusted with preparing a draft Statute for the future international court of justice in 1945.
  • The San Francisco Conference while keeping committee recommendations in mind decided against compulsory jurisdiction and in favour of the creation of an entirely new court, which would be a principal organ of the United Nations, on the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat.
  • The PCIJ met for the last time in October 1945 and resolved to transfer its archives and effects to the new International Court of Justice, which, like its predecessor, was to have its seat at the Peace Palace.
  • In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge José Gustavo Guerrero (El Salvador), the last President of the PCIJ.

Structure

  • The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately.
  • In order to be elected, a candidate must receive an absolute majority of the votes in both bodies.
  • In order to ensure a measure of continuity, one third of the Court is elected every three years and Judges are eligible for re-election.
  • ICJ is assisted by a Registry, its administrative organ. Its official languages are English and French.
  • The 15 judges of the Court are distributed in following regions:
    • Three from Africa.
    • Two from Latin America and Caribbean.
    • Three from Asia.
    • Five from Western Europe and other states.
    • Two from Eastern Europe.
  • Unlike other organs of international organizations, the Court is not composed of representatives of governments. Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously.
  • In order to guarantee his or her independence, no Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he/she no longer fulfils the required conditions. This has in fact never happened.

Jurisdiction and Functioning

The International Court of Justice (ICJ) serves as a global tribunal with dual jurisdiction over legal disputes between States brought before it by those States (so-called contentious cases) and requests for advisory opinions on legal matters referred to it by United Nations bodies and specialised agencies (advisory proceedings). Only nations that are parties to the Court’s Statute or that have agreed to its jurisdiction under specific restrictions are states that are also members of the United Nations. States do not have accredited permanent representation to the Court. Their ambassador accredited to the Netherlands or their minister of foreign affairs usually serves as their conduit for communication with the Registrar. They are represented by an agent when they are parties to a case before the Court. The agent also functions as the head of a special diplomatic mission with the authority to commit a sovereign State because international relations are at stake. The decision is final, enforceable against the parties, and not subject to review (at the most it may be subject to interpretation or, upon the discovery of a new fact, revision). A Member State of the United Nations commits, by signing the Charter, to abide by the Court’s ruling in any case to which it is a party.

The Security Council has the authority to suggest or decide on the steps that should be taken to give effect to a court ruling if a State believes that the other party has failed to fulfil its duties under the terms of the verdict. The process outlined above is the customary method. Incidental proceedings, however, may alter the course of the proceedings. In addition to carrying out its functions as a full court, the ICJ may also create ad hoc chambers to focus on particular matters if the parties so request.

ICJ suffers from certain limitations, these are mainly structural, circumstantial and related to the material resources made available to the Court. It has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings. It differs from the Courts which deal with allegations of violations of the human rights conventions under which they were set up, as well as applications from States at which courts can entertain applications from individuals, that is not possible for the International Court of Justice.

The jurisdiction of the International Court of Justice is general and thereby differs from that of specialist international tribunals, such as the International Tribunal for the Law of the Sea (ITLOS). The Court is not a Supreme Court to which national courts can turn; it does not act as a court of last resort for individuals. Nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards. The Court can only hear a dispute when requested to do so by one or more States. It cannot deal with a dispute on its own initiative. Neither is it permitted, under its Statute, to investigate and rule on acts of sovereign States as it chooses. The ICJ only has jurisdiction based on consent, not compulsory jurisdiction. It does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound.

Power and Function:

The International Court of Justice is composed of 15 judges, elected for the term of 9 years by United Nations General Assembly and the Security Council. The process is assisted by a registry and its administrative organ. The official Language of ICJ are English and French.

1. ICJ settles the legal disputes submitted by States, in accordance with International Law.

2.ICJ advises on the legal questions referred to it by authorized UN organs and other specialized agencies

Advisory Opinions

The advisory procedure of the Court is open solely to international organizations. The only bodies at present authorized to request advisory opinions of the Court are five organs of the United Nations and 16 agencies of the UN family. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity of presenting written or oral statements. The Court’s advisory procedure is otherwise modelled on the contentious proceedings, and the sources of applicable law are the same. In principle, the Court’s advisory opinions are consultative in character and are therefore not binding as such on the requesting bodies. Certain instruments or regulations can, however, provide in advance that the advisory opinion shall be binding.

Since 1946, the Court has given 27 Advisory Opinions, concerning, inter alia, the legal consequences of the construction of a wall in the occupied Palestinian territory, admission to United Nations membership, reparation for injuries suffered in the service of the United Nations, the territorial status of South‑West Africa (Namibia) and Western Sahara, judgments rendered by international administrative tribunals, expenses of certain United Nations operations, applicability of the United Nations Headquarters Agreement, the status of human rights rapporteurs, and the legality of the threat or use of nuclear weapons.

Conclusion:

The International Court of Justice (ICJ) is composed of 15 judges who serve 9-year terms after being elected by the United Nations General Assembly and the United Nations Security Council. The judges of the ICJ are assisted by the ICJ Registry, the administrative arm of the ICJ. In addition, the ICJ Statute allows a State party to a case before it which does not have a judge of its nationality on the bench to appoint a person to sit as judge ad hoc in that specific case. Article 2 of the ICJ Statute dictates that the Court shall be composed of “persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are juris consults of recognized competence in international law.”

International Court of Justice plays a superior role to dissolve the dispute arising between the states and helps to maintain peace and harmony around the world. Though the seat of the court is at The Hague, Netherland, but the sessions can be held wherever the court considers to do so.

The Court applies the international Law which is specifically summarized in Article 38 of the International Court of Justice Statute. The court also applies the international custom, international convention and the principle of justice and equity.

The International Court of Justice has also the power to make its own rules and regulation for smooth working. The procedure which are to be followed by the court are set out in the Rules of Court of the International Court of Justice 1978 (as amended on 29 September 2005).

Federalism

Meaning:

The word federalism derived from the Latin  word “feodus “which means agreement. Elements of federalism were introduced into modern India by the govt of India act of 1919 .which separated powers between the center and states. The word federation is not mentioned in the Indian constitution .India is a federal system but with more tilt towards a unitary system of government. It is sometimes considered a quasi-federal system as it has features of both a federal and a unitary system. Article 1 of the Indian Constitution states, ‘India, that is Bharat, shall be a union of states’

Federalism is a system of govt in which two sets of governments operate on the same group of people. That means controlled by two levels of govt. The central govt usually oversee the issues of the entire country,other look after the issues of local concern. 

Purpose of the federalism ;

  1. Preventing concentration of power in the hand of one tire of govt .
  2. Generating strength of the nation through the union .

Federal Features of the Indian Union

The constitution of India has not described India as a federation. However, Article 1 of Indian constitution describes India as a ‘’Union of States.’’ This means India is a union comprising various states which are an integral part of it. Here, the states cannot break away from the union. They do not have the power to secede from the union. In a true federation, the constituting units or the states have the freedom to come out of the union.

India is not a true federal government because it combines features of a federal government and the features of unitary government which can also be called as a quasi-federal government. Political Science classified Constitutions as unitary and federal, from the organizational standpoint, i.e; from the standpoint of distribution of governmental powers. In this context, Dicey observed that “Unitarianism… means the concentration of the strength of the state in the hands of one visible sovereign power…Federalism means the distribution of the force of the state among a number of co-ordinate bodies each originating in and controlled by the Constitution”. Broadly speaking, while in a unitary State, all power is vested in a single Central Government, without imposing any constitutional limitations upon its authority, and the local authorities operate as administrative agencies of the Central government, exercising such powers as the Central government might delegate to the latter. On the other hand, in the federal State, the Constitution divides the powers between the central and regional governments, each deriving its powers from the provisions of written Constitution, so that there is a sphere of autonomy belonging to the territorial organizations called States, which cannot be withdrawn or curtailed at the will of the central organization, called the Federal Government.

Federalism is thus a system of government of a country under which there exist simultaneously a federal or Central Government (legislature and executive) and several State or provincial legislatures and governments as contrasted with a unitary State. Both federal and State governments derive their powers from the federal Constitution, both are supreme in particular spheres and both operate directly on the people; the State governments accordingly are not exercising powers delegated by the federal governments, nor they are subordinate to it (though they may deal with less important matters). The foregoing legal test of federalism, when analysed, leads to the following broad features of a federal Constitution.

1. Written Constitution – A federal state derives its existence from the Constitution, just as a corporation derives its existence from the grant or statute by which it is created. Every power – executive, legislative or judicial- whether it belongs to the federation, or to the component States, is subordinated to and controlled by the Constitution. Therefore, a federal State requires a written Constitution for the obvious reason that in order to be workable and stable and the limitations upon them to be enforceable, must be precisely defined by a written instrument. Thus, even though Australia adopted the system of responsible government (or the Cabinet system) from the unwritten Constitution of the U.K., it had to be embodied in a written Constitution. When a federal polity possesses two constitutions as in the case of U.S.A. and Australia (one for the federation and another relating to the internal structure and administration of each State) and if there is a conflict between the two, then the Federal Constitution shall prevail.

2. Dual Government – The Constitution sets up a dual government – one government having authority over the whole territory of the country or nation which adopts that Constitution (i.e; the Units of the federation) and a Government for each of the regional units of which the federation is composed (i.e; the Units of the federation).

3. No Unilateral Change – The foregoing distribution of powers made by the Constitution cannot be changed or amended at the unilateral will of the parties to the federation, i.e; the Federal Government or the Regional Governments. The Constitution provides a process for changing its provisions, called ‘amendment’. In other words, the Federal nations generally have rigid Constitution.

4. Interpretation By Judiciary – The distribution of powers made by the Constitution must be guarded by the Judiciary, which is to interpret the Constitution as the ‘fundamental law’ of the land and to enforce its provisions against both the Federal and Regional Governments and to invalidate any of their acts which transgresses the limitations imposed upon them by the Constitution. Where the Federating States have separate Constitutions, the problem arises as to how far the Constitutional decisions of the Federal Supreme Court shall be binding upon the States and their Courts. In this context, it was laid down in the case of Marbury vs. Madison[4], that the Federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of constitutional system.

5.Division of powers: It is an essential feature of the federal constitution and division of power is done by the Constitution itself. The Constitution clearly demarcates and defines the power of the Union and the States. Both governments are independent in their rights, powers, and jurisdiction. e.g. In the Indian constitution subjects of national importance like defense, foreign affairs, currency, etc. fall under the domain of the centre while subjects of local importance like land, water, agriculture fall under the domain of the States.

6. Supremacy of the constitution:  The Constitution is the main source of all the powers of the Executive, legislative, and judiciary. All the institutions function under the control of the Constitution, they derived their existence from the constitution. Supremacy is necessary for the smooth working of the federal government according to K.C. where.

7. Bi-cameral legislature: India has bi-cameral legislature – it is one of the essential features of Federalism in India. The Indian Parliament has the lower house (Lok Sabha) and the upper house (Rajya Sabha). Any amendments need the approval of both houses. Few of the states also follow the bi-cameral legislature. Examples of these states are Telangana, Andhra Pradesh, Karnataka, Bihar, among others

India

The federal scheme in the Constitution of India is adopted from the Government of India Act, 1935. The said Act made an innovation upon several precedents to make a treble enumeration of powers, in order to make it as exhaustive as possible and also to minimize judicial intervention and litigation. The three legislative lists (I, II and III) respectively enumerated the powers vested in the Federal Legislature, the Provincial Legislature and to both of them concurrently (Section 100). If however, a matter was not covered by any of the three Lists that would be treated as a residuary power of the Federal Parliament (Section 104) and Section 107 provided for predominance of federal law in case of inconsistency with a Provincial Law, in the concurrent sphere Borrowing the pattern of treble enumeration from the Government of India Act, 1935, the Constitution of India makes a three-fold division of powers namely;

a) List I or the Union List – It contains subjects over which the Union shall have exclusive powers of legislation, including 97 items. These include defense, foreign affairs, banking, currency and coinage; union duties and taxes and the like.

b) List II or the State List – It comprises of 66 items or entries over which the State Legislature shall have exclusive power of legislation, such as public order and police, local Government, public health and sanitation, agriculture, forests and fisheries, education, State taxes and duties, and the like.

c) List III or the Concurrent List – It gives concurrent powers to the Union and the State Legislatures over 47 items, such as Criminal Law and procedure, Civil Procedure, marriage, contracts, torts, trusts, welfare of labour, social insurance, economic and social planning.

Thus the framer of the Indian Constitution attempted to exhaust the whole field of legislation as they could comprehend, into numerous items, thus narrowing down the scope for filling up the details by the judicial process of amplifying the given items. Besides, wherever any conflict could be anticipated, the Constitution has given predominance to the Union jurisdiction, so as to give the federal system a strong central bias. Similarly, in all the cases which have come up to the Supreme Court, the Court has upheld the jurisdiction of the Union Parliament. Thus, in case of overlapping, the power of the State Legislature to legislate with respect to matters enumerated in the State List has been made subject to the power of the Union Parliament to legislate in respect of matters enumerated in the Union and Concurrent Lists, and the entries in the State List have to be interpreted accordingly.

Similarly, in the concurrent sphere, in case of repugnancy between a Union and a State law relating to the same subject, the former prevails. If, however, the State law was reserved for the assent of the President and has received such assent, the State law may prevail notwithstanding such repugnancy, but it would still be competent for Parliament to override such State law by subsequent legislation {Article 254(2).

These apart, the vesting of residual power under the Constitution follows the precedent of Canada, for it is given to the Union instead of the States as in USA and Australia. The Constitution of India vests the residuary power i.e; the power to legislate with respect to any matter not enumerated in anyone of the three Lists,- in the Union Legislature (Article 248). However, the final determination as to whether a particular matter falls under the residuary power or not is that of the Courts. Moreover, even apart from the central bias in the normal distribution of powers, there are certain extraordinary provisions in the Indian Constitution which provide for expansion of the federal power in cases of emergency or other predominating national interests, instead of leaving it to the judicial interpretation as in USA, Australia or Canada, as we have noticed. These provisions therefore constitute additional limitations upon the powers of the State Legislatures. These exceptional circumstances are:

1. National Interest – In the national interest, Parliament shall have the power to make laws with respect to any matter included in the state List, for the temporary period, if the Council of States declares by the resolution of 2/3 of its members present and voting, that it is necessary in the national interest that parliament shall have power to legislate over such matters. Each such resolution will give rise a leases of one year to ten law in question. A law made by Parliament, which Parliament would not but for the passing of such resolution have been competent to make, shall, to the extent of the inconsistency, seas to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period (Article 249). The resolution of the council of states may be renewed for a period of one year at a time.

2. Proclamation of emergency – While a proclamation of emergency made by the parliament is in operation, parliament shall have similar power to legislate with respect to State subjects {Articles 250, 353(b)}. A law made by the parliament, which parliament would not but for the issue of such proclamation have been competent to make, shall, to the extent of in competency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period (Article 250).

3. By agreement between States – If the Legislatures of two or more States resolve that it shall be lawful for Parliament to make laws with respect to any matters included in the State List relating to those States, Parliament shall have such power as regards such States. It shall also be open to any States to adopt such Union Legislation in relation to itself by a resolution passed in that behalf in the Legislature of the state. In short, this is an extension of the jurisdiction of the union parliament by consent of the State Legislatures (Article 252).[17]

4. To implement Treaties – Parliament shall have the power to legislate with respect to any subject for the purpose of implementing treaties or international agreements and conventions. In others, the normal distribution of powers will not stand in the way of parliament to enact legislation for carrying out its international obligations, even though such legislation may be necessary in relation to a State subject (Article 253)

5. Proclamation of Failure of Constitutional Machinery in the States – When such a proclamation is made by the President, the President may declare that the powers of the Legislature of the State in question shall be exercisable by or under the authority of Parliament {Article 356(1)(b)

Comparison Between U.S.A. & India

On the plain reading of the Constitutions of India and America, it seems that the basic structures of the division of power are same. However, there are some apparent distinctions between the two setups. Firstly, under the Indian Constitution, the powers are relatively more enumerative than the USA. Unlike the latter, the former lays down as many as 211 items into three lists. Secondly, Indian Constitution provides three Lists namely; Union List, State List and Concurrent List whereas; in USA, there is a single enumeration of powers, which signifies that the Constitution simply enumerates the powers specially assigned to the Federal Legislature and leaves the entire unremunerated residue to the State Legislatures. Finally, in India Residuary Powers is given to the Union whereas; in USA, the same is given to the States.

Conclusion

Federalism originated in the experience gathered from political experiments that not merely defence but a number of other subjects, such as control of foreign affairs, inter-state and foreign commerce, export and import and the like, are matter of national interest which require to be dealt with by a national organisation whereas; other matters such as public order, public health, fire, water and electric supply services, which are the concern of the inhabitants of a particular local area and have problems of their own connected with the exigencies of that particular locality, would be best administered if entrusted to the representatives of that area. The basic concept of division of power is same even today in every federal structure. However, the principles of strictly separating the power between the two governments are not an easy task and disputes and differences are always there. The only golden rule seems to be that in case of conflict and doubt as to the appropriate government in relation of any matter is that the benefit should be given to the Central government. However, this rule is not always justifiable especially in the case of taxation simply because the Regional or State governments also need the finance to run the administration. Nevertheless, Federalism is appropriate to large countries like India where government from one center would be complicated and difficult and could readily be out of touch with the needs and desires of widely separated areas and to countries, where particular parts are radical, linguistic and legal or other particularities which they desire to have safeguarded. In short, in spite of some difficulties in interpreting the legislative entries of the federal structure, federalism will stay more importantly because of the globalization of the economy and the desire to achieve the “welfare state”.

Theories of Punishment

Punishment is a process by which the state inflicts some pain to the persons or property of person who is found guilty of Crime. The Object of Punishment is to protect society from mischievous and undesirable elements by deterring potential offenders, by preventing the actual offenders from committing further offenses and by reforming and turning them into law abiding citizens. The importance of theories of punishment has been recognized even in ancient times for the protection and welfare of the State and its people. In ancient India, the King was duty-bound to punish the offender. The purpose of the administration of criminal justice is to punish the offender. The state is the main body that punishes Criminals. Punishment is some kind of pain or loss given to the offender for his criminal act which may either be intended to deter him from repeating the offence or maybe an expression of society’s disapprobation for his anti-social conduct or it may also be directed to reform and regenerate him and at the time protect the society from law-breakers. The topic, theories of punishment will give you all the information about the theories and forms of punishment.

1.Deterrent theory of punishment

The term deterrent, comes from the word deter which aims at preventing criminals or individuals from committing the offence of any crime. This keeps in mind that an individuals probability of committing any crime is future is lowered and it will generate a fear in their minds so that they are aware of the consequences of their criminal act. The idea of Deterrent theory of punishment is a Utopian idea.

The objective of deterrent theory is to prevent or deter crime by establishing fear in the minds of the society or by creating an example before individuals and since death penalty is an extreme form of punishment, it has the power to stop such crimes from being committed in future.

This can be understood in the words of Dr. Bernett J, who said: Thou art to be hanged not for having stolen a horse, but in order that other horses may not be stolen. This mean that deterrent theory of punishment aims not only at punishing a criminal but ensuring that the same kind of act is not repeated again in the future.

Three major components of the deterrent theory

Severity- The punishment must be severe so that the people should afraid to do the crime and obey the law.

Certainty- the punishment must happen every time when the crime occurs.

Swiftness- The punishment must be given fast in order to make it more deterrent.

After knowing these facts, the person will think 10times before doing the crime. Although the deterrent theory was harsh, it was considered the deterrent theory as the best theory of punishment as the crime rate was very low due to this theory of punishment. In India, inhuman punishments such as mutilation, beheading, flogging were in vogue till the end of the 18th century.

2. Retributive Theory

The Retributivist bases the theory of punishment on the belief that an offender deserves to receive suffering that matches the severity of the crime committed.Retributive justice is defined as a form of justice that is committed to giving wrongdoers punishments that are proportionate to their crimes. Retribution, meaning ‘‘repayment”, comes from the Old French retribution, retribucion and also directly from the Latin retibutionem meaning ”recompense, repayment”. The root Latin word, tribution means ”I pay back”. Modern use has restricted the word to the meaning ”evil given for evil done”. It is the belief that individuals should receive what they deserve according to their actions. Retribution law is therefore defined as a law system that is focused on retributive justice as the main method of resolving cases.

The 3 core principles of retribution are:

Those who commit certain crimes morally deserve to suffer a proportionate punishment.

This punishment is intrinsically morally good if a legitimate punisher gives them the punishment they deserve. and

It is morally wrong and unallowable to intentionally punish the innocent or inflict punishment that is disproportionate to wrongdoers.

Retributive justice requires that the punishment be proportionate and meted out at the same level as the crime. In biblical times, retribution was explained with the example of ‘an eye for an eye’ or a ‘tooth for a tooth’,

3. Preventive theory 

According to Paton ” The Preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty and exile serve the same purpose. This theory too aims to prevent the crime rather than avenging it. As per this theory, the idea is to keep the offender away from the society. The criminal under this theory is punished with death, life imprisonment etc.

  • By instilling the fear of punishment in the mind of a probable offender
  • By disabling an actual offender, either permanently or temporarily
  • By educating the public at large about the threat of the punishment.
  • The Supreme Court held in Dr. Jacob George v. State of Kerala 1994 SCC (3) 430  that the aim of punishment should be punitive, reformative, preventive, retributive, and compensatory. It is not a good punishment policy to favour one hypothesis over the other. Each principle of retribution should be applied separately or in combination depending on the case’s merits. “Every saint has a history, and every sinner has a future,” it is often said. Since offenders are an important part of society, it is also the duty of society to improve and correct them to make them active members of society. Since crime avoidance is a significant objective of both culture and law, none of which should be neglected.

4. Reformative Theory

The main objective of punishment should be to reform the criminal. Kautilya regarded the object of punishment as reformatory. He felt that crime was inherent in every social set-up and it spread like a contagious disease from man to man. He, therefore, suggested that the criminal must be reformed by finally doing away with the criminal tendency in him.

“Every saint has a past, every sinner has a future.” -V. R. Krishna Iyer, J12. “… the humanistic approach should not obscure our sense of realities.”When a man commits a crime against society by committing a diabolical, coldblooded, pre-planned murder of one innocent person the brutality of which shocks the conscience of the court, he must face the consequence of his act. Such a person forfeits his right to life.” – A. P. Sen, J13

According to this theory crime is like a disease. This theory maintains that you can cure by killing. The ultimate aim of reformists is to try to bring about a change in the personality and character of the offender, so as to make him a useful member of society15. But that is the beginning of a new story–the story of the gradual Renewal of a man, the story of his gradual regeneration, of his Passing from one world into another, of his initiation into a new Unknown life.

Punishment is, therefore, said to be justified because-

(i) It provides an opportunity for state to take steps to reform offender and control crime.

(ii) It is both a deterrent and an effective condemnation and as such it has reformative consequences.

(iii) The ultimate aim of the punishment is to ‘rationalize’ the offender, to ‘readjust’ him to society, to ‘rehabilitate’ him or to ‘change him deep inside.

Criminals are to be ‘treated’ in order to cure them of their sickness and make them emotionally healthy, law abiding citizens just like the rest of us. The goal of rehabilitation is to re-socialize offender by building into them the motivation to obey the law.'”

In the landmark case of DK Basu v. State of West Bengal (1997 ) 1 SCC 416  the Supreme Court ruled that a victim who is under the protection of the state has every right to compensation because the officer of the state has violated her Right to Life, which is covered under Article 21 of the Constitution.

5.Theory of Compensation / Expiatory

The word “Expiate” means ” to make complete atonement for, or to make satisfaction or reparation for”.This theory is based on morals.

Hagal & Kohler are the main supporters of this theory. Hagel defines ” the punishment makes the criminal to expiate for the wrong done” According to this theory, expiation or repentance by offender itself is a punishment. if the offender expiates or repents, he must be forgiven.

This theory relies on compensation to the victim for the loss caused by the accused. In this way, the offenders are made to realise the same sufferings they have caused to the victim. First, the offender who caused harm to the person or property is responsible for making up for their wrongdoing. Second, the State is responsible for protecting its citizens; if it cannot do so, it must recompense the victims.

this type of punishment was prevalent in ancient Indian criminal law. Expiations were performed by way of uttering manthras, fasting, self-immolation, or even burning onself to death.

Conclusion

Punishment under the Indian Penal Code is not based on any one theory mentioned above. It is a combination of deterrent, preventive and retributive theories. Criminal are not born but are products of the society set up is to correct the wrong doer. Keeping in view the present position of criminal administration of justice the Supreme Court of India held in Bachan singh V. State of Punjab AIR 1980 SC 898 the death sentence should be awarded for murder in the rarest of rare cases. None of the above theories can be adopted as sole standard of punishment for the perfect penal code. The perfect system of criminal justice is the result of a compromise between the underlying principles of all the theories.

 

Rule of Law

The idea of the “Rule of Law,” made popular by A. V. Dicey, is one of the most important and well-liked ones in the entire globe, with the only purpose of protecting human rights. For example, a violation of the rule of law occurs when a victim of a crime is forced to drop their complaint against the offender or is threatened into refraining from seeking justice for the crime committed against them. Another example is when the legislature approves a law that in any way restricts or infringes upon a person’s fundamental rights, such as their freedom of speech and expression.

The reasoning behind the idea of “Rule of Law” is extremely fluid and has a perfect mechanism to control absolutism and anarchy by giving the law of the land the upper hand. Through the application of this principle, the peremptory use of power is avoided since the law created by legislative bodies after careful consideration and discussion takes precedence over all other powers. As a result, the rule of law supports and upholds democracy’s core values. Regarding the “Rule of Law”

“No man is above the law” means that everyone is subject to regular law and the authority of ordinary courts, regardless of rank or position. Until a man violates a law established by the ordinary court, he will not be entitled to any of his personal property. In accordance with Article 14 of the Indian Constitution, “Every Man is Equal before the Law, No One is Above,”

When a court uses constitutional rights as the basis for its decision, it signifies that the constitution is not the source of those rights but rather the regulations or the court’s application of the law. The British constitution is the outcome of legal proceedings, and each right granted therein is determined and formed by one or more legal judgments.

Article 14 of the Constitution recognises the notion of the rule of law and its two basic tenets: no one is above the law, and no one is subject to punishment other than for breaking the law. The latter tenet mentioned above is not recognised by our constitution. Therefore, the first and second rules of dicey apply to the constitution, however our Indian system does not recognise the third rule of dicey. All laws passed by the legislature must comply with the Constitution’s requirements; if any laws are approved that go against those provisions, the Supreme Court will declare them to be null and void.

Basic Principles of Rule of Law  

  1. Law is supreme and nobody is above the law.
  2. All the things should be done according to a law not as per whim.
  3. No person should be suffered except for the breach of law.
  4. Absence of arbitrary is the soul of the rule of law.
  5. Equality before the law and equal protection of the law.
  6. Speedy trial.
  7.  The fair and just procedure should be conducted.
  8. Independent and impartial judiciary.

Origin and Evolution of Rule of Law

The idea of the “Rule of Law” is not new; rather, it has its roots in the 6th century BC, at the time of Plato and Aristotle. Greece and Rome engaged in a number of philosophical debates about the significance of law in society throughout this time. Plato acknowledged the idea that the law should be obeyed by the government in his work The Laws. His pupil Aristotle advanced this concept and improved it in The Politics, where he associated “rule of law” with logic and “rule of man”

Aristotle, his student carried forward this idea and ameliorated it in The Politics where he connoted “rule of law” with reason and “rule of man” with passion, importing that government should be bound by law in order to eliminate arbitrariness.

This idea was acknowledged during the Magna Carta’s promulgation in 1215, following a protracted series of uprisings by the nobles against the monarch as a result of his attempts to extort more money from them to pay for the French war. No one should be deprived of their liberty or property “unless by the lawful judgement of his equals or by the law of the land,” according to one of its notable clauses.

The “social contract” theory was developed by John Locke, the father of liberalism, in his book Two Treatises of Government (1690). According to Locke, people voluntarily agreed to give up their natural rights in exchange for the promise that their personal freedom and liberty will be protected by a governing authority through the enactment of various laws. He therefore argued that laws are crucial and should take precedence over all other forms of government..

This idea was further developed by Montesquieu in his work L’Esprit des Lois (1748), where he developed his theory of the division of powers and split governmental authority into three parts to prevent the concentration of all powers under one authority. Contrary to earlier thinkers, Montesquieu placed a high value on the judiciary’s role in ensuring the rule of law by limiting the unbridled powers of the executive and legislative.

The term “rule of law,” which Sir Edward Coke is credited with coining, comes from the French phrase “La Principe de Legalite,” which translates to “the principle of legality.” Through his publications, British constitutionalist Albert V. Dicey popularised the term “rule of law” in the nineteenth century.

He outlined his three guiding principles for the “Rule of Law” in his 1885 book Introduction to Study of the Laws of the Constitution. This idea (Rechsstaat), according to which all laws must adhere to the constitution and that governmental action is restrained by this legal framework, was also incorporated into the Austrian Constitution by Hans Kelsen.

The “rule of law” came to be recognised as a universal ideal with the adoption of the Universal Declaration of Human Rights in 1948. The General Assembly of the United Nations declared that “it is essential” for human rights to be protected by the rule of law “if a man is not to have recourse to rebellion against tyranny and oppression as a last resort.”

Principles of Dicey’s Rule of Law 

Professor Dicey recognised three core principles of rule of law. 

They are:

  1.  Supremacy of Law– Dicey believed that the law of the land was supreme and that anyone who broke it would be held accountable. This means that until there is sufficient proof of a specific legal violation proven in accordance with conventional legal procedure before ordinary courts, no individual may be held accountable or subject to punitive harm involving his or her person or property. No one should therefore be punished or tormented in accordance with administrative officials’ whims or fancies, but rather solely in line with the established law and processes..
  2. Equality before law– According to this idea, everyone is subject to regular law and is within the jurisdiction of ordinary courts rather than any special courts, regardless of class, caste, gender, or other factors. This suggests that public servants shouldn’t have any special privileges (apart from the monarch), and should be held accountable for their activities in front of regular courts. The same set of laws will therefore apply to everyone because the government cannot impose any form of preferential treatment on any one person..
  3. The predominance of legal spirit– According to this idea, the court must be independent in order to uphold the spirit of the law. The general principles of the Constitution are the outcome of numerous judicial decisions, making the court of law a prominent institution that has commendably contributed to determining and upholding the rights of private individuals. Dicey argued that the judiciary is associated with the constitution rather than the constitution constituting its source.

Critical Analysis of Rule of Law 

Dicey’s principle of “Rule of Law”forms a crucial tenet for upholding democracy and fundamental human rights, but in order to successfully implement it, we must first understand its benefits and shortcomings as well as how it has been implemented in other democracies throughout the world..

1 . Excellencies of “Rule of Law”

Ensures independence of the judiciary– The protection of the judiciary’s freedom is the third Dicey principle, which is crucial for upholding peoples’ fundamental rights. The judiciary is the third pillar/state of democracy, and Montesquieu stressed the significance of this institution in his theory of “Separation of Powers” in order to establish a system of checks and balances on the legislative and executive branches. This can be achieved by auditing the various laws and statutes that violate the fundamental principles of the constitution, such as any law that violates fundamental human rights or promotes discrimination on the basis of any category, and by closely examining the executive bodies’ actions to stop them from engaging in any extrajudicial actions or failing to follow the rules of law.

2. Endorses the freedom of people– The foundation of “Rule of Law” is the law of the land, but Dicey’s principle ensures that the laws do not hamper with human rights including freedom to speech and expression, freedom to have a decent life, etc., as the obligatory obedience and equal application of unjust laws will not make any difference in society. Therefore, through the illustration of the independence of the judiciary, Dicey throws light on its role in securing the rights of private citizens.Through various landmark judgements, courts have set precedents that will prevent any government or private agency from impeding the rights of any individual. For example, in Kesavananda Bharati v. State of Kerala, the unlimited power of the legislature to amend any part of the Constitution was circumscribed by recognising the ‘rule of law’ as part of the basic structure of the constitution. Through this, the rampant misuse of the power of amending the Constitution came to a halt as no amend amendment could be brought if it hampers the basic structure of the Constitution (including human rights).

3. Dissuades arbitrariness on the part of administrative authority– Laws are intended to be implemented equally in a just society to all people to the same extent and in the same way, without straying from the letter of the law. This demands a significant reduction in arbitrary behaviour or broad discretionary power, which is protected by the “Rule of Law.” The laws become meaningless when they are abused or used arbitrarily by any authority, hence it is essential to distinguish between the will of the law and the will of the authority by giving the former supreme authority. Lex terrae thereby supersedes all governmental authorities, and any action that conflicts with it is prohibited. According to this theory, there is no locus standi for any form of arbitrary conduct, such as granting immunity from all liability to a particular class of persons or applying the law harshly to another class.

In P. Royappa v. State of Tamil Nadu, the Supreme Court observed, “Where an act is arbitrary it is implicit in it that it is unethical both according to political logic and constitutional law and is, therefore, violative of Article 14. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats”. This was further repeated in the case of D.S. Nakara & Others v.Union of India[ 

  1. Preservation of the Constitution– A constitution is created with the hope that it will define and distinguish the nature of each state, as well as its goals, objectives, rights, and benefits to citizens. It also serves as a framework and guide for how the government and legal system should function, allocating each entity’s specific powers and responsibilities.

The idea of “rule of law,” whose fundamental tenet is to uphold and obey the law of the nation, aids in the preservation of the Constitution and its objectives because the Constitution serves as the state’s legal code. By maintaining its goals, this principle thwarts attempts to violate anyone’s fundamental rights and forbids the extrajudicial use of power. As a result, it ensures that laws remain stable and consistent and that they are not altered frequently or just to the advantage of one person or group of people.

  1. Advocates a qualitative standard of life– Rule of law champions the qualitative standard of living if it operates to the letter. In the present scenario, the purview of ‘rule of law’ has broadened and apart from strictly abiding to the ordinary laws, this principle now also endorses the creation of the social conditions that would make it possible for the citizens to enjoy the social order.

Demerits of Rule of Law

1 .Categorizing discretionary power along with arbitrary power– 

Dicey mistakenly believed that being flexible meant being capricious. He argued that all administrative decisions should be made in exact accordance with the law, without any room for discretion. Dicey was unable to draw the conclusion that slavish adherence to the law does not ensure justice or the principles of a democratic and contemporary constitution. Laws must occasionally be re-interpreted, changed, and replaced, which demands judgement and conscience. Ratification and achieving consensus over laws do not determine their credibility and applicability for eternity. Use of judgement and conscience is the best course of action if we want to put the goals of the laws into practise.

In Satbir v. Surat Singh & Ors, the court held that ordinarily, this Court does not interfere with an order of acquittal recorded by the High Court; but if the High Court arrives at its findings overlooking important facts and relying upon few circumstances which do not in any way impair the probative value of the evidence adduced during the trial, this Court would be failing in its obligation to do complete justice if no intervention is done with such order of acquittal.

2. Contradictory– Dicey gave the judiciary’s function in establishing and defending individual rights a great deal of weight. However, this admirable objective is in conflict with the law’s stringent requirement of compliance, which leaves little room for discretion. Because the possibility of any contingent situation cannot be completely eliminated by ratifying the laws, the judiciary’s role in upholding and ensuring human rights cannot always be fulfilled by strictly adhering to the law. As a result, giving administrative authorities discretion helps to ensure the goals and motivations of the lex loci.

In I. C. Golaknath and Others v. State of Punjab and Anr., Chief Justice Koka Subba Rao for the first time invoked the doctrine of Prospective overruling and by a thin majority of 6:5 ratio overturned the earlier precedents and made Fundamental Rights out of the ambit of the government’s amending power. The judges, in this case, employed the power of their discretion and conscience in considering the earlier precedents set in Shankari Prasad v. UOI and Sajjan Singh v. State of Rajasthan as not  fit to be followed in the future judgements as the earlier judgements did not safeguard the fundamental rights and therefore had to be remedied leading to the introduction of Prospective Overruling.

3. Overemphasis of the role of Judicial Decisions– Dicey exaggerated the importance of judicial decisions in ensuring the rights of private persons or bringing reformation in society. The rationale given by Dicey completely disregard the role of the legislature in securing the rights of people but in fact over the centuries when the judiciary’s role was not well-defined and it did not possess any autonomy, the legislature had not taken a back seat in ensuring the rights of people. For example, in IIndia, the promulgation of the Equal Remuneration Act, 1976, prevented discrimination against women in receiving equal recompense as provided to men. Similarly, through the Hindu Succession Act, 2005 a daughter’s right to be an equal coparcener as a son in claiming her share in the ancestral property of the Hindu Undivided Family was established and any sort of discrimination in claiming her right was deemed to be unlawful. In Britain, the right to Unemployment Insurance has been given to the people under the Parliamentary Acts. Similarly, the Libel Act of 1888 gave certain special rights to the press.

In the USA, the ratification of the Civil Rights Act (1964) prohibited discriminatory behaviour in public places along with employment discrimination based on race, colour, religion, sex or national origin, in the same way, the Voting Rights Act (1965) ensured the voting rights of blacks and abolished any discrimination that blacks faced during voting. Therefore, the legislature has also contributed to maintaining people’s rights and curing any kind of oppression.

4. Allotting undue moral superiority to Judiciary–The judiciary’s position as the protector of human rights or as an inspector, vetting the legislature’s and the executive’s extra-constitutional behaviour, is a dominant aspect of defining the relative power between the three organs in the modern era. The judiciary has frequently performed admirably in upholding democracy, upholding human rights, and ensuring justice, yet it is a sad fact that sometimes the judiciary has fallen short of its moral and ethical obligations. Dicey believed that the only institution capable of ensuring justice and human rights was the judicial system. A particular body gains too much authority and too little responsibility when this moral superiority is given to a structure that isn’t even subject to adequate auditing or review.

On one occasion, former Chief Justice JS Verma acknowledged this reality: “These days, judges are instructing everyone what to do, but who is to tell us? Although it is our responsibility to uphold the law, that does not absolve or excuse us from doing so. In order to secure the true meaning of “rule of law,” the judiciary should also be subject to some form of inspection (without any interference in its independence). This is because a system of checks and balances on the legislature and executive by the judiciary is insufficient to prevent authoritarian behaviour.

Application of Rule of Law in India

Dicey’s concept of ‘Rule of Law’ has been embraced by the Indian Constitution and by a humongous range of judgements. Our Common Law system has been borrowed from British Jurisprudence, the basis of which is the ‘Rule of Law’.

Some of the articles of our Constitution states its application and they are:

  1. Article 13(1): It states, Insofar as they conflict with the provisions of this Part, all laws that were in effect on Indian territory before the beginning of this Constitution shall be void to the degree of such conflict. The legislative branch and the executive branch get their authority from the constitution, which indicates that the constitution shall be the ultimate authority in the nation. The Constitution must be followed for any law created by the legislature to be valid; otherwise, it will be ruled invalid.
  2. According to Article 14: “The State shall not refuse to any individual within the territory of India, equality before the law or the equal protection of the laws.” It means that everyone, regardless of differences, is subject to the same set of laws and that nobody is above the law. Therefore, no one will either have legal immunity from all laws or receive particularly harsh treatment under the law.
  3. Article 21: It states, “On Indian territory, no one will be denied equality before the law or the equal protection of the laws, nor shall any person be deprived of his life or personal liberty unless in accordance with the method established by law.” A additional safeguard against executive action taken arbitrarily is provided by Article 21, which states that no one may be deprived of their life or freedom until doing so in line with the legal process.
  4. Article 32 and 226: To ensure its honest applicability in India, the Constitution provides remedies to secure fundamental rights in the form of writs like Habeas Corpus, Mandamus, Quo Warranto, Certiorari and Prohibition.

Case Laws

[6] 1990 AIR 1176.
[7] Decided on 18.09.2013.
[8] [9] [10] AIR 1978 SC 597.
[11] [12]

  1. A D M Jabalpur v. Shivkanth shukla 1976 2 SCC 521 : the Habeas Corpus Case. In this case, the question before the court was ‘whether there was any rule of law in India apart from Article 21’. The context in this case was of abeyance of implementation of Articles 14, 21 and 22 during the proclamation of an emergency. The answer to the majority of the bench was in negative for the question of law. However, Justice H.R. Khanna had a distinct opinion observing that:” Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all civilized societies“.
  2. Chief Settlement Commr; Punjab v. Om Prakash  AIR 1969 SC 33. It was observed by the Supreme Court that, “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.”
  3. Satwant Singh Sawhney v. D Ramarathnam :[10 April, 1967] 3 SCR 525  The Supreme Court has held that every executive action if it operates to the prejudice of any person, must be supported by some legislative authority.
  4. Secretary, State of Karnataka and Ors. v. Umadeviand Ors:(1992) 3 SCR 826.  A Constitution Bench of this Court has laid down the law in the following terms: “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article
  5. Keshavananda Bharati v. State of Kerala:(1973) 4 SCC 225. The Supreme Court held that the Rule of Law is an essential part of the basic structure of the constitution and as such cannot be amended by any Act of Parliament, thereby showing how the law is superior to all other authority of men.
  6. Maneka Gandhi v. Union of India:AIR 1978 SC 597.The Court held that exercise of power in an arbitrary manner by the government would not infringe the rights of the people and arbitrariness violates Article 14 of the Indian Constitution.
  7. Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil:AIR 1994 SC 678. The Court observed that for survival of democracy, rule of law must prevail, and it is necessary that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the c

Conclusion

The rule of law is the basis of most democratic constitutions. The world has come a long way from the colonial era of prejudice and prejudice, but equal treatment remains a pipe dream for many who have been forced to live oppressively and unfairly. Thus, the construction of pioneering concepts and teachings for the development of society plays only a partial role, but requires the efforts of society as a whole to change reality.

Kinds of mortgage under the Transfer of Property Act, 1882

Introduction 

A mortgage complies with Roman Law’s “Hypotheca,” which allowed creditors to seize the debtor’s property and recoup their losses if the debtor failed to make payments. The notion of a mortgage is also recognised in Hindu and Islamic law, where the property is pledged to the creditor, the debtor is prohibited from possession until the obligation is repaid, and the creditor keeps the profits in place of interest.

In other words, a mortgage is to be understood as a transfer of interest explicitly in immovable property as security for a loan. Let’s say that Mr. X lends some money to Mr. Z, he may do so without asking for any security or he may demand some security for the payment of money. If Mr. X does not demand any security and Mr. Z fails to pay the same, the former will have a right to sue the latter for the money lent but if Mr. Z becomes insolvent, Mr. X may lose all of his money. However, in a situation where some security of adequate value is given for the loan, the lender (Mr. X) will be safeguarded if the borrower (Mr. Z) becomes insolvent since precedence is given to security over the claims of other creditors.

The fundamental component of a mortgage is that it is a transfer of a legal interest in the property with a provision for redemption, meaning that the interest will be re-conveyed upon debt repayment or the transfer will be void. The Transfer of Property Act, 1882 (hereafter “TPA”), Section 58, contains the mortgage-related provisions.

Definitions

Loans can be classified as either secured debt or unsecured debt. A pledge is used to secure a loan against movable property, while a mortgage is used to secure a loan against an immovable asset owned by the debtor. A mortgage is the transfer of a security interest in a specific piece of real estate used to secure the repayment of debt.

Justice Mahmud observed: “Mortgage, as understood in this country, cannot be defined better than by the definition adopted by the legislature in section 58, TPA.”

The TPA read with Order 34 Rules 1 to 15 of CPC, which deals with lawsuits relating to mortgages of immovable property, is where the entirety of Indian mortgage law is included, according to the Supreme Court’s observation in Kedar Lal v. Hari Lal . AIR 1952 Cal 176 It is crucial to remember that the court is constrained by these legislative restrictions.

Section 58(a) of TPA defines the terms ‘mortgage’, ‘mortgagor’, ‘mortgagee’, ‘mortgage-money’, and ‘mortgage-deed’. 

Clause (a) of Section 58 reads: 

A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement that may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

As we all know, a “mortgage” refers to the transfer of a property interest in order to finance a debt that may or may not result in personal obligation. A “mortgagor” is a borrower who requires a loan and pledges his property as security, and a “mortgagee” is a party who grants the loan. Both the mortgage money and the mortgage deed, which is the legal document through which the property is transferred, are terms used to describe the sum of the current principal and interest payments.

Kinds of mortgage

Simple Mortgage [Section 58(b)]

Clause (b) of Section 58 reads:

Simple mortgage: When the mortgagor enters into a personal obligation to pay the mortgage sum without actually transferring ownership of the mortgaged property, and expressly or obliquely acknowledges that the mortgagee will have the right to sell the mortgaged property and use the proceeds of the sale to the extent necessary to satisfy the mortgage sum, the transaction is referred to as a simple mortgage.

The basic elements of a simple mortgage are:

  1. The mortgagor must have bound himself personally to repay the loan; 
  2. The possession of the property is not given to the mortgagee; and
  3. To secure the loan he has transferred to the mortgage the right to have the specific immovable property sold in the event of his failure to repay.

Mortgagor’s Personal Obligation

The personal duty of the mortgagor to make payments is the essential component of a simple mortgage. Due to the fact that accepting the loan creates a promise to pay, such personal liability or obligation to pay may be stated or inferred from the terms of a transaction.

The promise to pay is implicit in the borrowing transaction itself but it may be displaced by the terms of the mortgage transaction for instance in the case of a usufructuary mortgage. 

No Delivery of Possession

In the case of a straightforward mortgage, possession stays with the mortgagor. The mortgagee obtains security in the form of the mortgaged property, not the rents and profits derived from it. A decree for possession would be unlawful under Section 68 if a simple mortgagee brought a lawsuit to enforce his security. Additionally, it wouldn’t function like a foreclosure; instead, it would change a basic mortgagee into a mortgagee in possession.

Right to cause the Property Sold 

The mortgagee is empowered to sell the property in the case of non-payment of the mortgaged money. However, the power of sale is not to be exercised without the intervention of the court. This implies that the mortgagee needs to get a decree from the court to execute the sale. Upon the sale of property by the intervention of the court, the mortgagee shall get the money advanced by him with interest and the remaining portion of proceeds of sale shall be given to the mortgagor whose property was sold.

Registration

A simple mortgage can be created only through a registered document. According to Section 59, even when the sum of money secured is less than rupees 100, a simple mortgage needs to be effected by a registered instrument. 

Mortgagee’s Remedy

In case the mortgagor fails to repay the loan within the stipulated date, the following two remedies are available to the mortgagee:

  1. A simple mortgage entails a personal obligation on the part of the mortgagor to repay the debt, therefore the mortgagee may file a personal lawsuit against the mortgagor to reclaim the money. In this situation, he will receive a straightforward money decree.
  2. To get his money back, the mortgagee might also ask the court to order the sale of the collateral. In this scenario, he wins a court order authorising the sale of the land.

The mortgagee may, however, file a single lawsuit encompassing both causes of action. The suit must be filed within 12 years of the date the loan, or the mortgage money, becomes due. He may sue the mortgagor personally or ask the court for a ruling in his favour for the sale of the property.

Mortgage by Conditional Sale [Section 58(c)]

Clause (c) of Section 58 reads:

Mortgage by conditional sale: When the mortgagor purports to sell the mortgaged property while placing conditions on it, such as the requirement that the sale become void upon the payment of the mortgage balance or that the buyer transfer the property to the seller upon the payment of the mortgage balance, the transaction is known as a mortgage by conditional sale, and the mortgagee is referred to as a mortgagee by condition.

Due to their religion’s ban on charging interest on money granted as a loan, Muslims invented the idea of a mortgage by conditional sale, also known as “bye-bil-wafa” in Arabic. They were able to pay off their principal and interest thanks to this form of mortgage while also maintaining their moral integrity.

Basic elements of a mortgage by conditional sale are: 

  1. The mortgagor must ostensibly sell the property to the mortgagee.
  2. There must be a condition on such sale that either,
  3. on the repayment of the debt on a certain date,  
  4. the sale shall become void or the buyer shall transfer the property to the seller, or in default of payment on the agreed date, the sale shall become absolute. 
  5. The condition must be contained in the same document. 

In other words, when the mortgagor ostensibly sells the mortgaged property to the mortgagee with a certain condition such as:

  1. If the mortgagee makes any default on repayment of the debt (if the loan is not repaid), the sale would become absolute and binding, or
  2. If the mortgagee does not make any default in the payment (repayment of the debt has been made), the sale would become void, or
  3. If the mortgagee makes the payment, the buyer shall transfer the mortgaged property to the seller (the mortgagor shall transfer the property back to the mortgagee), such a transaction is called a mortgage by conditional sale. 

However, it is to be noted that no such transaction will be considered to be a mortgage where no condition is mentioned in the same document which shall affect the sale.

Condition in the Same Deed

There was a substantial shift brought about by the Proviso stipulated in clause (c) of Section 58. The following proviso was included as a result of Section 19 of the Transfer of Property (Amendment) Act of 1929:

With the caveat that no such deal shall be regarded as a mortgage unless the condition is included in the legal document that affects or pretends to impact the sale.

It specifies that any deed that seeks to effect a sale will only be referred to be a mortgage by conditional sale if it satisfies the requirements listed above. This change is not retroactive in any way. After this caveat, the buyback condition must be stated in the same document that specifies the ostensible sale in order for the transaction to be considered as a mortgage by conditional sale and not a sale in and of itself.

The intention of the Parties

Remember that any documents including reconveyance conditions would not in any way purport to be mortgages. When determining the nature of a transaction, one of the most important aspects to consider is the parties’ intentions, and if one party’s claim conflicts with the deed in question’s written terms, proof must be shown to the court. In the case of Sheikh Ebadat v. Pandit Chunchun Jha

The mortgagee is not allowed to include other of his properties in this transaction because there is no personal obligation on the part of the mortgagor to pay the loan in a mortgage by conditional sale. The rule of “No Debt, No Mortgage” is an exception in this case.

Absolute Ownership

In Thumbuswamy v. Hossain Rowthen, the Privy Council noted that the fundamental feature of a mortgage is that, in the event of a violation of condition, the sale deed would be performed itself and the transaction would turn into an absolute sale without any type of accountability between the parties.

The mortgagee does not have possession of the property in this type of mortgage i.e. it gets only qualified ownership which may lead to absolute ownership in case of default by the mortgagee.

Remedy Available 

The mortgagee can only be compensated by foreclosure rather than sale, which requires a court order. Only when the mortgagor fails to make the required payment on time and the transaction becomes final can the mortgagee file a decree for foreclosure in accordance with Section 67 of the TPA, Rules 2 and 3 of Order 34, and CPC.

Usufructuary Mortgage [Section 58(d)]

Clause (d) of Section 58 reads:

Usufructuary mortgage.—If the mortgagee receives possession of the mortgaged property from the mortgagor, or if the mortgagor expressly or implicitly commits himself to doing so, and authorises the mortgagee to keep possession of the property until the mortgage is paid in full, as well as to receive all or any portion of the rents and profits accruing from the property, and to appropriate those rents and profits in lieu of interest, or payment of the mortgage-money, or partly in lieu of interest, or payment of.

The basic elements of usufructuary mortgage are: 

  1. The mortgagor either delivers possession or expressly or impliedly binds himself to deliver possession of the mortgaged property to the mortgagee.
  2. The mortgagor authorises the mortgagee till the payment of the mortgage money is satisfied:
  • to retain such possession;
  • to receive the rents and profits or any part of such rents and profits arising from the property; and 
  • to appropriate such rents and profits in lieu of interest, or payment of the mortgage money, or partly in payment of the mortgage money. 

Delivery of Possession 

As a guarantee for making mortgage payments, the mortgagor gives the mortgagee possession of the property that is subject to the mortgage. Until the debt is paid off, the mortgagee is allowed to keep possession of the property. Although it is possible for the mortgagor to offer an express or implied pledge to deliver possession, it is not necessary for this to occur at the time the deed is executed.

Rent and Profits

The mortgagor transfers ownership of the mortgaged property to the mortgagee as security for the repayment of the mortgage debt. The mortgagee has the right to hold onto the property as long as the loan is not paid in full. The stated or implied pledge to deliver possession by the mortgagor may be accepted in place of the actual conveyance of possession occurring at the time the deed is executed.

  1. in lieu of interest,
  2. in lieu of principal, or
  3. in lieu of principal and interest. 

When the principle is paid in the first instance, the mortgagor regains possession of the property. In the second instance, the mortgagee collects rents and profits until they are equal to the principal amount, at which point the mortgagor is entitled to reclaim possession while continuing to pay interest. In the final instance, the mortgagor is not granted possession until the principle and interest have been settled using the rentals and profits.

No Personal Liability of the Mortgagor

In the case of a usufructuary mortgage, the mortgagor assumes no personal liability for the payment of the mortgage debt. The mortgagee must use the property’s rents and profits to pay down his mortgage. Since it is difficult to foresee when the loan will be paid off, there is absolutely no time limit on how long the mortgage may continue to exist.. 

Mortgagee’s Remedies 

If the mortgagor fails to handover ownership of the property, the mortgagee may file a lawsuit to regain possession or advance funds; however, if the mortgagor has already been granted possession, the mortgagor’s sole option is to keep the property until his debts are paid in full. The usufructuary mortgagee lacks the right to foreclose or sell the property. Because he can pay himself back, the mortgagee benefits.. 

Rights of Usufructuary Mortgagor

A usufructuary mortgagor has been given a right under Section 62 to recover possession of the mortgaged property from the mortgagee in the cases where: 

  1. The mortgagee was authorised to pay himself the amount of mortgage money from the rents and profits of the property and the mortgage money is paid,
  2. The mortgagee is authorized to pay himself from the rents and profits and the terms stipulated for the payment of the mortgage money have expired and the mortgagor pays the mortgage money or balance of the same to the mortgagee or deposits it in the court.

English Mortgage [Section 58(e)]

Clause (e) of Section 58 reads:

English mortgage.—Where the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

Basic elements of an English mortgage are:

  1. There is a consensus to pay the amount on the due date. The mortgagor has to repay the mortgage money on the due date. 
  2. There is an absolute transfer of property to the mortgagee. 
  3. Such absolute transfer needs to be subject to a proviso that the mortgagee will transfer the property to the mortgagor upon payment of mortgage money on the agreed date. 

In the case of English Mortgage, the mortgagor transfers the ownership of the mortgaged property absolutely to the mortgagee as security. The mortgagee shall return or re-transfer the property once the mortgagor repays the amount as agreed on a particular date. 

Personal Liability

In an English mortgage, there is a personal liability of the mortgagor to repay the amount of mortgage debt on a certain date as agreed. An agreement to pay is an important part of such a mortgage. 

Remedy Available

In case of default by the mortgagor, the remedy available with the mortgagee is to sell off the mortgaged property and recover himself.

No Absolute Interest

The property is transferred completely, but there is a clause that allows for a retransfer if the mortgage borrower pays off the debt. Due to the transfer, interest is subject to the right of redemption.

where the mortgagor formally transfers the property to the mortgagee and agrees to pay back the debt to the mortgagee on a specific date. In this situation, two conditions are prevalent.

  1. Mortgagor repays the amount: If the mortgagor repays the agreed upon to the mortgagee on the date specified, the property which was absolutely transferred by him shall be reconveyed to the mortgagor.
  2. Mortgagor makes default in payment: If the mortgagor does not repay the amount on the mentioned date, then the remedy with the mortgagee is to sell off the property and recover its debt. However, there is a personal liability on the mortgagor to pay the debt.

Right of the Mortgagee

The mortgagee in this form of mortgage gets the right of possession whether the right of entry is expressed or not, and can retain the same till the said amount is not paid to him. But when the mortgagor is in possession he is entitled to profit but is not accountable to the mortgagee. However, where the mortgagee is in possession and is enjoying the profits from such property, it shall apply them in reduction to mortgagees dues.

For instance, B, a mortgagor absolutely sells the property to A through a sale deed. Here if B makes any default, A has to do nothing except registration of the sale deed, as an absolute right has been given to A.

Mortgage by deposit of title deeds (Equitable Mortgage) [Section 58(f)]

Clause (f) of Section 58 reads :

Mortgage by deposit of title-deeds.—The delivery of title documents to immovable property to a creditor or his agent with the intention of creating a security interest thereon is referred to as a mortgage by deposit of title-deeds in any of the following towns: Calcutta, Madras, Bombay, and any other town that the State Government concerned may, by notification in the Official Gazette, specify in this regard.

Due to the lack of a written instrument or any other further requirements, this type of mortgage is known as a “equitable mortgage” in English law as opposed to a “legal mortgage.” The purpose of the law in allowing for such a mortgage is to provide the mercantile community with options in cases where it would be required to acquire money on the spot before having the chance to prepare a mortgage deed is feasible. Because it is an oral transaction, this sort of mortgage is exempt from the Law of Registration and does not require any writing.

The basic elements of this type of mortgage are:

  1. There must be a debt.
  2. There must be a deposit/delivery of the title deeds.
  3. There is an intention that the deeds shall be security for the debt; and
  4. Territorial restrictions 

It’s vital to remember that not all places of India allow for the establishment of such mortgages. The location of the delivery of the deeds, not the location of the property mortgaged, is meant by the restriction to specified places. Additionally, a deposit of deeds outside of that region won’t result in either an exchange or a mortgage.

Existence of Debt

A debt may be of the present or the future variety. The term “mortgage” refers to the transfer of an interest in any property to secure the payment of funds advanced or to be advanced, a current or future debt, or the performance of any engagement that results in a pecuniary obligation. Equitable mortgage is just one of the modes of creating a mortgage, and clause (f) contains one.

Deposit of Title-Deeds

Providing documents in a constructive manner suffices in place of their actual delivery. There is no requirement that all title documents be deposited or that the deposited documents demonstrate a complete title in order for an equitable mortgage to be valid. If the deeds are genuine, pertain to the property, and serve as substantial proof of ownership, it is sufficient. An equitable mortgage is not established if any title of deed is not shown in any way in the documents that are placed but there are documents that exist that show his title to the property and they are not deposited.

Intention to Create Security

The gist of the transaction lies in the intention that the title deeds shall be security for the money borrowed (debt). Merely handing over the title deeds to Mr. X by Mr. Z does not create a mortgage. The deeds need to be delivered in the performance of that agreement that they are security for the debt. 

The intention for creating security is a question of fact, not of law, which needs to be determined in all cases just like any other fact-based on presumptions and oral, documentary, or circumstantial evidence. 

Anomalous Mortgage [Section 58(g)]

Clause (g) of Section 58 reads:

Anomalous mortgage.—A mortgage that is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage, or a mortgage by deposit of title deeds within the meaning of this section is called an anomalous mortgage.

In order to protect various customary mortgages prevailing in different parts of the country, clause (g) was enacted by the legislation. An anomalous mortgage is said to be a combination of two or more mortgages. 

This section shall be read with Section 98 of the TPA which reads :

Rights and liabilities of parties to anomalous mortgages.—In the case of an anomalous mortgage the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage deed, and, so far as such contract does not extend, by local usage.

Such agreement which is made between the mortgagor and the mortgagee according to their terms and conditions is called an anomalous mortgage. Where it is not a simple, usufructuary, mortgage by conditional sale, etc. is termed as an anomalous mortgage.

A usufructuary mortgage, for instance, can also hold the right to sell (as stated above, a usufructuary mortgage only possession is given to the mortgagee and it does not have the right of sale). Here, the mortgagee is granted ownership of the property for a predetermined amount of time under the proviso that, in the event of debt non-repayment, the mortgage will be declared a mortgage by conditional sale. This turns the mortgage into an anomalous mortgage because it is both a conditional sale mortgage and a usufructuary mortgage.

Remedy Available 

In this case, the mortgage has the right of ‘foreclosure’ as well as ‘sale’ if the agreement of mortgage permits the same; and if the debt is not repaid, the mortgagee would become the owner of the property.

Mortgagor’s Right of Redemption 

The mortgagor’s right of redemption may be exercised through the mortgage deed, and it may only be exhausted in the event of a mutual agreement between the parties, a court order, a statutory restriction, or both. The mortgagor’s right to redeem the mortgage is created when the mortgagee is paid; nevertheless, this right is only unusable when parties’ actions prevent it from being done.

There are two other terms as well which are used in relation to mortgage, which the reader must know. These are:

Sub mortgage

Where a mortgaged property is mortgaged again is termed as sub mortgage, or where the mortgagee mortgages its interest in the said property.

For instance, where Mr. X mortgages his house to Mr. Z for ₹15,000 and Mr. Z further mortgages its mortgagee rights( it can be the right to sue the mortgagor in case of default or possession, rents, etc) on the property to Ms. B for ₹5,000. Here Mr. Z created a Sub Mortgage.

Puisne mortgage (also called pari pasu mortgage)

When the mortgagor mortgage a property to one person and mortgages the same property to another person in order to secure another loan, the second mortgage is termed as Puisne Mortgage.

For instance, the property value of ‘Z’ is ₹1,00,00,000 (1 crore) has been given as security to the ‘Bank of Baroda’ for the loan of ₹10,00,000 (10 lakh). If an additional loan is required, the same can be taken from another bank due to the difference in interest rate. So here the same property can be used as security for securing another loan from ‘Syndicate Bank’ of ₹5,00,000 (5 lakh). This transaction of taking a loan from ‘Bank of Baroda’ would be referred to as the first mortgage while the loan from ‘Syndicate Bank’ would be referred to as the second or puisne mortgage. Here syndicate bank becomes puisne mortgagee and can recover its debt once the first mortgagee i.e. Bank of Baroda claims its money.

A puisne mortgage is allowed only after the 1st mortgagee permits to use the same property as security for another loan, by the valuation of the mortgaged property.

Conclusion 

Consequently, a mortgage is defined as an express transfer of an interest in real property used as loan collateral. The most crucial aspect of a mortgage is that it transfers a legal interest in the property with a provision for redemption, meaning that the transfer will be nullified or the interest will be re-conveyed upon payment of the obligation.