II YEAR OF 3 YEAR LL.

B
SEMESTER - IV
EVEN SEMESTER

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SUBJECT : LAW OF EVIDENCE
SUBJECT CODE : TA4A

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 SYLLABUS
TA4A – LAW OF EVIDENCE
Unit - I Introduction

The Indian Evidence Act, 1872-Applicability and exclusion. Lex Fori-Statutory

definitions - The Indian Law of Evidence compared with the English Law of Evidence -
Exceptions same; rules of evidence applicable to civil and criminal proceedings - Doctrine of
corpus delicit - presumptions of laws - and presumptions of fact.

Unit - II

Matters of which proof is allowed - Relevancy and admissibility Resgesta - Motive

preparation, opportunity and subsequent conduct - introductory and explanatory facts of relevant
facts - Acts of conspirators - facts otherwise relevant -Facts determining quantum of damages -
Existence or exercise of custom- Statement of bodily or mental condition similar facts-course of
business-Admission and confession statement of persons who cannot be called as witnesses.
Disposition of former proceedings relevant in public records, maps, charts, Act or notifications,
Law books and law reports - judgment opinions of witnesses - Character of parties - Civil and
Criminal cases - Previous conviction of parties - General reputation of parties.

Matters of which proof is not required - Judicial Notice - Law and Custom - Public
Administration - Common knowledge -Facts formerly admitted presumptions - Rebuttal of
presumptions.

Matters of which proof is not allowed - Facts which parties are stopped from proving - stopped
by record, deed and conduct.

Unit -III

Proof - oral evidence - Rule against hearsay - The evidence rule - Admissions,
confessions, declaration statement in Public documents - Documentary evidence, primary and
secondary evidence - Digital evidence - Genuiness of documents - Proof of public documents by
certified copies or by records of the documents, etc. Presumptions as to documents - parol
Evidence respecting. Documents as substitute for documents - variation or contradiction or
contradiction in aid of interpretation.

Unit - IV Production and Effect of Evidence :

Burden of proof - quantum of proof - cogency of evidence competency of witness -

compellability - oath or affirmation - Examination in chief cross examinations questions in cros
Examination - re-examination. Hostile witness - Discredit of opposing witness - contradiction of
witness- dental privilege - Affairs of State Information Legal Professional Communications

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between spouse accomplices - Discretion of witness - Admissibility of evidence witness called
by judge - corroborations - Refreshing memory Judges power to put questions - Appeal against
improper admission and rejection of evidence.

Statutory Materials with Amendments

1. The Indian Evidence Act, 1872.

2. Criminal Law (Amendment) Act, 2013.
3. Information Technology Act, 2000.
Books for Reference

1. Ratanlal : The Law of Evidence.

2. Sarkar : Law of Evidence
3. R.D.Agarwal : Commentaries on Indian Evidence Act.
4. Sir James Fitz Stephen : An Introduction to the Indian Evidence Act.
5. Abhinav Mishra's : Indian Evidence Act.
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 LAW OF EVIDENCE
The Law of Evidence is the Lex Fori – which governs the Courts

 Whether the witness is competent or not

 Whether the fact requires to be proved by writing or not
 Whether certain evidence proven a fact or not
That is to be determined by the law of country.
Court means and includes :
All Judges and Magistrates and all persons except arbitrator authorized to take evidence
SECTION – 3 – FACT : Means and includes

 anything, state of things or relation of things capable of being perceived by the senses
 any mental condition of which any person is conscious :

Illustration
1. There are certain objects arranged in a certain order in a certain place – fact
2. The man heard or saw something – fact
3. The man said Certain thing – Fact
4. Holds certain opinion, certain intention, act in good faith or fraudulently or uses
particular words or was at a particular time conscious of particular sensation – fact

SEC – 3 RELEVANT
When one fact is said to be relevant to another when the one is connected with another in
any of the ways
Section – 3 Fact in Issues: Means and includes
Any fact from which, either by itself or misconnection with other facts, the existence, non
existence, nature or extent of any rights liability or disability, asserted or denied in any suit or
proceedings

Illustration
“A” is accused of the murder of “B”
In a trial for murder, following facts may be in issues
1. That “A” caused “B” s death
2. That “A” intended to cause “B” s death
3. “A” had received grave and sudden provocation from “B”
4. “A” at the time of doing the act caused “B”s death was by reason of unsoundness of
mind, incapable of knowing its nature

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DOCUMENTS
Document means any matter expressed or described upon any substance by means of
letters, figures, or months or by more than one of those means intended to be used (or) which
may be used for the purpose of recording such matters.

Illustration
1. A Writing is a document
2. Words printed, lithographed or photographed
3. Map or plan
4. An inscription on a metal plate or stone
5. A caricature
In criminal cases” the allegations in the change sheet constitutes a facts in issue.
When a fact is said to be proved : Sec – 3 Says

PROVED
A fact is said to be proved when after considering the matters before it, the Court either
believes it to exist (or) considers its existence so probable that a prudent man ought under the
circumstances of the particular case – to act upon the supposition that it exist

DISPROVED
A Fact is said to be disproved, when after considering the matters before it, the Court
either believes that it does not exist or considers its non existence so probable that a prudent
man ought under circumstances of the particular case, to act upon the supposition that it does
not exist.

NOT PROVED
A Fact is said to be not proved when it is neither proved nor disproved.

APPRECIATION OF EVIDENCE
Whatever may be the kind of evidence, namely, facts are reported to the open court
through mouth of the witness or by means of document, in either case, the Court has examine
the reliability of the evidence produced. This is called appreciation of evidence.
Most of the times witnesses are dram from persons closely related or closed residing
witnesses are interested, motivated or inimical

Illustration

 Witnesses giving varying account of time of death, their evidence was corroborated by
stomach contents of the deceased found in the post mortem report.

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  Statement of witness that a blow or kick was given by the accused on a particular part of
the body was held to be sufficient to make good evidence.

NAME OF WITNESS NOT FIGURING IN FIR

Credibility of witness cannot be doubted for the fact their names do not figure in FIR.

WITNESS ACCUSED IN COUNTER CASE

The testimony of Witnesses is cogent, credible and trust worthy, was not to be wiped out
only because there was an accusation against them in counter case.
Case Law : Raj Kishore Jha Vs. State of Bihar

ACQUITTAL OF SOME ACCUSED

Evidence should not be considered mechanically, where of the accused persons
implicated by the eye-witnesses, one was acquittal

WITNESS IMPROVING HIS TESTIMONY

The credibility of a witness cannot be taken to be eroded by the fact that his statements in
the witness box were more extensive that those in the FIR. His credibility becomes particularly
strong when medical opinion verifies it.
An approver was deposing about events which took place over a period of three years,
some inconsistencies in his version were found to be of minor natures.

WITNESSES NOT TRUE PARTY

Where the whole of the testimony of a witness in a criminal trial was rejected on the
ground of that one of his statements were proved to be false.
Supreme Court held evidence was wrongly rejected - Bhe Ram Vs. State of Bihar

WITNESSES BELONGING TO ONE FACTION

Accused and complainants belonged to two different factions – group sighting some
members in both groups were injured – witnesses produced all belongs to one faction – their
testimony must be taken with great care and caution.
Partition witness can be relied upon so as to found conviction if his evidence inspires
confidence, otherwise Court should look for same corroboration.
Case : Bhanuprasad Vs State of Gujarat

INIMICAL WITNESSES
No Implict faith can be put upon the evidence of witnesses whose relation with accused
persons are inimical, but their evidence cannot be rejected on the ground that their names not

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signed in FIR not on the ground that no independent witnesses from nearby place were examined
by the prosecution
Case: State of Bhiar Vs Ram Prasath Sigh 1998 SCC 2606
Minor Discrepancies Found in between the statement of a witness in examination in chief
and in cross examination

 Should not affect his credibility

 Similarly – Minor discrepancies in the statement of the eye witnesses

Illustration

 One of them Saying that they had gone along with the deceased to the place of
occurrence and the other that, they had done, so a day before cannot affect their
occurrence
 Truthfulness should not be tested on the whole
 No importance was attached to the fact that all the eye witnesses were the relatives of the
deceased .

ILLUSTATION
Letters were written by a married woman to her father asking him to take her away
otherwise she would be killed by her in laws. The hand writing on the letters was identified by
her brother. The accused inlaws did not make any effort to have handwriting compared with
admitted specimen-
The fact that all letters were not produced (or) that there was minor discrepancy of over
writing on the date portion of the letter were held to be not helpful to the accused

TRAP WITNESS
No importance should be attached to the fact that witnesses belonged to the poor strata of
society.
Prosecution not bound to produce the whole numbers of witnesses.

RELATIVE AND INTEREST WITNESSES

Being near relatives and living practically in the same house, these witnesses cannot be said
to interested witnesses but are very natural witnesses

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 The testimony of probable witnesses was not allowed to be rejected only on the ground that
they all were relatives of the deceased and no independent witnesses were examined
The evidence of the son / daughter of the deceased was not allowed to be discarded only for
the reason of close relationship.
The testimony of a witness which was otherwise material was not allowed to be ruled out
only because he was known to the father of accused person.
Case Sewaka Vs. State of Maharastra AIR 2002 SC 50

INJURED WITNESS
The testimony of injured eye witness cannot be discarded on the ground that he is likely to
been in mind an inimical disposition towards the accused or because of improbability of that he
should be stating the actual details

 Eye witness named in FIR

 During prosecution evidence – was held to be no ground to dispute his presence at the
place of occurrence when he himself sustained bodily injuries in the same incident.

WITNESSES OF SEXUAL ASSAULT

 In case of kidnapping and sexual assault

 Victim was 5 ½ years child. Her grandmother noticed her absent came out and search,
hears her cries – rushed to the house of accused from where she received the sound of
cries.
 She told the Court that – she found child victim lying in naked state and the accused lying
on her – no reason to disbelieve

FALSE WITNESS
Where a witness in apparently taking a false position no question arises of putting faith
upon his testimony.

Illustration
A person who has attacked by dacoits and who had been seen his associates being shot
dead is not expected to act in a cost and calculated manner – Testimony was not to be rejected
only for the fact that before going to Police station he went to a tube well where a strong man of
the village lived.

CHILD WITNESS
The evidence of child witness must find adequate corroborations before it relief upon
In Massacre of family a child survived his narration of the incident was quite natural
though he saw only a part of the occurrence,

TESTIMONY OF POLICE OFFICER

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 Cannot be discarded only because he is a police officer – conduct of responsible officer
cannot be doubled on the basis of mere suspicion.

CHANCE WITNESS
When a passerby observes an incident and is produced as a witness his testimony cannot
be rejected only on the ground that he was a chance witness

Illustration
Evidence of street hawkers and vendors cannot be reject on the ground that they are
chance witnesses
Case Law – Rana Pratab Vs State of Haryana AIR 1983 SC 680

DEFENCE WITNESS
The principles relating to credibility and trust worthiness of a defense witness have to be
the same as are applicable to prosecution witnesses

MEDICAL EVIDENCE
In a rape and murder case, the post – mortem report was that there was a commission of
sexual assault on the girl before her death – It is not open to the accused to criticize the recitals of
report without giving an opportunity to the doctor to explain.
Proof of facts in issue
1. Direct Evidence
2. Circumstantial evidence (or) evidence of relevant facts

DIRECT EVIDENCE
One fact can be proved with help of another fact
Example. Fact of explosion can be proved with help of the fact that a person heard the noise of
the explosion – Direct Evidence of explosion

- A Photography of the happenings

- marriage Photographs shall prove the marriage between certain persons

CIRCUMSTANTIAL EVIDENCE
Circumstances sometimes speaks as forcefully as does the direct evidence – In a case
restining on circumstantial evidence – all the circumstances brought out by the prosecution must
inevitably and exclusively point the guilt of the accused and there should be no circumstances
which render the innocence of the accused

RULES REGARDING CIRCUMSTANTIAL EVIDENCE

1. The circumstances from which the conclusion is drawn should be fully established
2. The Circumstances should be conclusive in nature

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3. All the facts so established should be consistent only with the hypothesis of guilt and
inconsistent with accused’s innocence.
4. The circumstances should be a moral certainty exclude the possibility of guilt of any person
other than accused

RELEVANCY AND ADMINISSIBILITY

Case Ram bihari yadav Vs. State of Bihar
It is a fundamental rule of law of evidence that – evidence must be relevant in order to be
admissible
Hear say evidence is excluded, even if it is relevant, because it may be repeated version
and may suffer from exaggerations or undertaking with no chance to cross examine the original
narrator.
Admissibility has nothing to do with relevancy (or) probative value – Admissibility is a
matter of legal policy. It is a question of law to be determined by “ LEX FORI”

APPLICATION TO CIVIL AND CRIMINAL PROCEEDINGS

In Civil matter – Standard of proof go by probabilities
In Criminal Matters – there must be more certainty and proof beyond reasonable doubt
The degree of proof is stricter and where circumstantial evidence is the only basis. Proof
cannot be in the realm of surmises and Conjectures.
Example . Confessions in Criminal proceedings provision as to estoppels – in Civil proceedings

SUGGESTED QUESTION
1. Define evidence & What are types of evidence ?
2. Explain the nature and function of law of evidence ?
3. Evidence is basically a procedural law. Explain with relevant case laws?

SECTION 4 - MAY PRESUME

The Court may presume a fact, it may either regard such fact as proved unless and until it
is disproved or may call for proof of it

SHALL PRESUME
The Court shall presume a fact, it shall regard such fact as proved, unless and until it is
disproved

CONCLUSIVE PROOF
When one fact is declared by the Act to be conclusive proof of another, the court shall on
proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it.

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MODES OF PROOF
A fact may be proved either by oral evidence of the fact or by documentary evidence
1. Producing witnesses of fact – Oral Evidence
2. Producing documents which records the fact in question – Documentary Evidence

SECTION – 59

 Proof of facts by oral evidence

 All the facts except the contents of documents (or) electronic records may be proved by
oral evidence
 All statements which the Court permits or requires to be made before it by witnesses in
relation to the matters of fact under inquiry such statements are called – oral evidence
 As Amended by the Information Technology Act, 2000, the documents includes
electronic records also. Hence ever after fact, except the contents of an electronic record
or of any document can be proved by oral evidence.

SECTION – 60 – ORAL EVIDENCE MUST BE DIRECT

i.e. to say

1. If it refers to a fact which could be seen it must be the evidence of witness who says he saw it
2. If it refers to a fact which could heard, it must the evidence of a witness who say he hear it
3. If it refers to a fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in that manner.
4. If it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of a person who holds that opinion on these grounds

Provided that the opinion of experts expressed in any treatise commonly offered for sale,
and the grounds on which such opinion are held, may be proved by the production of such
treaties if the author is dead or cannot be found or has became incapable of giving evidence or
cannot be called as a witness without an amount of delay or expense which the court regard as
unreasonable

Provided also : that if oral evidence refers to the existence or condition of any material thing
other than a docuemnt, the court may if it thinks fit, require the production of such material thing
for its inspection

Oral evidence must be direct that is a witness can tell the Court of only a fact of which he
has the first hand personal knowledge, in the sense that he perceived the fact by any fine senses.

EXCLUSION OF HEARSAY EVIDENCE

Section -3 - This section excludes hearsay Evidence.
1. The fact of which the evidence is offered is fact which could be seen, the evidence must
be of a person who personally saw the happenings of a fact.
2. The evidence of a fact the happening of which could be seen can be given only by an eye
witness.

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 3. If a fact of happening of which could be heard of noise explosive, the evidence of which
could be heard – the evidence of person who actually hear the noise and happenings of
fact.
 In all cases the evidence has to be that of a person who himself witnessed the happenings
of the fact of which he gives evidence in whatever way the fact was capable of being
witnesses. Such witness is called an eye –witness.
 The general Rule is that hearsay evidence is not admissible in proof of a fact which has
been stated by a third person.
 Post Mortem report was produced by the record clerk of the Hospital. The doctor who
conducted the post –mortem was not produced Court rules that such report was not
provable – only the Original report and not a copy of it is admissible.

R Vs Gibson

 Accused prosecuted for causing hurt throwing stone at the prosecutor. So soon as he
was hit by the stone a woman who saw a man throwing a stone drew his attention
towards a house and said “ The person who threw the stone went in there, very soon
thereafter he was caught and arrested in that house
 above statement held to be Not relevant .
 Prosecutor himself had not seen any person throwing a stone at him and there after
entering in particular house and therefore the statement was a hearsay.
 The Rule against the admission of hearsay evidence is fundamental. It is not the best
evidence and it is not delivered on oath.
 The truthfulness and accuracy of the person whose words are spoken by another
witness cannot be tested by cross examination and the right which his demeanor
would be throw upon his testimony is lost.

EXCEPTION TO HEARSAY
1. The Rule of Res Gestae ( Section 6 )

 Whenever a transaction such as a contract or a crime is fact in issue, then evidence

can be given of every fact which forms part of the same transaction. The facts which
surrounded the happenings of an event are its Res Gestae.
 The statement of a person may be proved through another person who appears as a
witness if the statement is a part of an transacting in issue – words may be proved
when they form part of the Res Gestae

2. Admissions and confessions

 An admission of liability or confession of guilt which taken place outside the Court is
proved through the testimony of a witness to whom the admission or the commission
is made such witness is not a witness of fact.
 He had not seen or observed the main occurrence through any of his senses

3. Statements Relevant ( Section 32)

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  Are the statements mostly of the deceased persons or persons who or not available are
witnesses – The evidence of their statements in the circumstances mentioned is
received through the testimony of person who hear their statements or otherwise
acquired knowledge of the statement.

4. Statements in public document

 Statements in public documents such as Act of parliament, official books and

registers can be proved by the production of the document and it is not necessary to
produce the draftsman of the document before the Court
 Public Acts of parliament are binding upon every subject because every subject is in
the Judgment of law, Privy to the making of them and therefore supposed to know
them

5. Evidence in former proceedings ( Section 33)

 Evidence given by the witness in a proceeding can be used as evidence of truth of the
facts stated in any subsequent proceedings between the same parties or that privies.
 Provided that the witness is died or for some other reason not available.

6. Statement of Experts in Treaties ( Section 60 )

 Opinion of experts expressed in treaties commonly offered for sale and the grounds
on which such opinions are held may be proved by production of such treaties if the
author is dead or cannot be found or has became incapable of giving evidence or
cannot be called as witness without an amount of delay or expenses which the Court
regards as unreasonable
 Every article published or a book written cannot ipso facto be regarded an conclusive
or worthy of evidence

7. MISCELLANEOUS ( whether exception can be extended

(i) Identify of can through its engine number
(ii) Statements made to witness by person slot called.
(iii) Act of officers constituting inspecting party
Case : State of Kerala Vs. M.M.Mathew
(iv) Computer Printout
 R Vs Minors- If computer output cannot relatively readily be used as evidence in criminal
cases, much crime will in practice be immune from prosecution under the (English)
police and criminal evidence Act 1984 – all computer evidence has to comply with
Section -69 – which was
 In any proceedings a statement in a document produced by a computer should be
admissible as evidence of any fact stated therein unless it is shown
(a) That there are no reasonable grounds for that the statement is in accurate because of
improper use of computer

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 (b) That at all material times the computer was operating properly or if not that they any
respect in which it was not operating properly or was out of operation was not such
as to affect the production of the document, or the accuracy of its contents
(c) Any unauthorized use of a computer is not itself a ground for regarding the
statements to recorded by it were in accurate

COURTS DISCRETION TO ASSUME QUALITY OF EVIDENCE

 It is quality of evidence that is a crucial factor that should determine the exercise of
discretion.
 Thus the Court must first consider whether a proffered statement falls into a recognized
exception.
 The Court must then assess – whether its probative quality justifies its admission of
evidence.

INTERESTED OR PARTISON WITNESS

Interest evidence is not necessarily unreliable even partisanship by itself is a not a valid
ground for discrediting or rejection / rejecting sworn testimony. All that is necessary is a careful
scrutiny and caution.

SUGGESTED QUESTIOINS
1. Explain the rule of Res Gestea and state how it is an exception to Hearsay evidence ?
2. Define oral evidence and state the General principles of oral evidence?
3. State the how computer printout fall foul of the hearsay prohibition?

DOCUMENTARY EVIDENCE
Section – 3 defines documentary evidence
All documents produced for the inspection of the Court such documents are called
documentary evidence.
Document means any matter expressed or described upon any substance by means of
letters, figures (or) marks, or by more than one of those means, intended to be used (or) which
may be used for the purpose of recording that matter.
example. Writing is a document
- words printed, lithographed or photographed
- a Map or plan
- An inscription or a metal plate or stone
- a Caricature
- anything or matter which contains a permanent record of relevant fact or fact in issue
- paper on which contract is written is document
- wall or chattel or stone on which something is inscribed

RECORDED TAPES

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 with regard to relevancy of recorded tape. No reason in principle why the recording in
some permanent or semi permanent manner of human voice (or other words) which are relevant
to the issue to be determined provided that it furnishes information – cannot be a document.

TAPE RECORDED CONVERSATION

Mostly in cases involving corruption by official in receiving (or) attempting to receive
bribe
R.M. Malkani Vs. State of Maharastra
- Accused appealed to Supreme Court against the Conviction was coroner of Bombay. A doctor
who was running a nurshing home operated upon patients who afterwards died. It, being post-
Mortem death – subject matter of Post Mortem inquest. Coronor persuaded the doctor to pay
money. If report favourable to him. Payment arranged through another doctor and finally settled
through phone call from house of another doctor – police commissioner called tape recorded
mechanism – connected to doctors telephone and most incriminating conversation was record in
presence of police officer.

Case Laws:
1. Yusufalli Esmail Nagree Vs. State of Maharastra
2. Pratab Sing Vs. State of Punjab
Court accepted conversion of dialogue recorded an tape recording machine as admissible
evidence.
In Nagree case the conversation between Nagree and sheikh nagree and nagree was
accused of offering bribe to sheikh
Presidential election cases also questions were put to a witness that he tried to dissuade
the petitioners from filing election petition – petitioner recorded on tape conversations between
petitioners and witness. The Court Admitted the recording to contradict the witness.
REQUISITES FOR ADMISSIBILITY OF TAPE RECORDED COVERSION OF
EVIDENCE
Tape – Recorded conversion is admissible provided
1) The conversation is Relevant to the matters in issue
2) There should be identification of voice.
3) Accuracy of the tape recorded conversations is proved by eliminating of possibility of
erasing the tape record.

SECTION – 8

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  A Contemporaneous tape record of a relevant conversation is a relevant fact and is
relevant
 Res Gestae – part of same transaction – relevant U/s.6
 In cases of eviction of tenant on the ground of sub letting
 Tape recorded conversation between tenant and husband of landlady – as only be relied
upon as a corroborative evidence of conversation deposed by any of the parties to
conversation. In absence of any such evidence, the tape cannot be used as an evidence in
itself.
Case Law : Mahasir Prasad Vs. Surrender Kaur AIR 1982 SC 1403

SECTION – 61
Proof of contents of documents:
 The contents of a documents may be proved either by primary evidence or by secondary
evidence.
 Entries in books of account were sought to be proved and nobody appeared, no base
vouchers were produced to support the entries, The Evidence was not allowed.
 In absence of documentary evidence, which could have been available plaintiff was not
allowed to test his case on oral evidence which was against the record produced by the
defendants

Case laws
1. Chandrakantaben Vs. Vadilal Bapural
2. Banorsidas Vs. Maharaja Sukhjit singh

IMPROPERLY STAMPED DOCUMENT

 Document carried adhensive stamps which belongs to a period prior to 6 months from the
date of purchase – could not be accepted in evidence
 An unregistered family settlement deed was held to be admissible strictly for collateral
purposes only.
Case Lakshmajah Vs. Saropamma AIR 2004 NOC 59

SECTION – 62 - PRIMARY EVIDENCE

Primary Evidence means the document itself produced for the inspection of the court
 Where document is executed in several points each part is primary evidence of the
document.
 Where document is executed counterpart, each counterpart being executed by one or
some of parties only each counterpart is primary evidence as against the parties
executing it.
 Where a number of documents one all made by one uniform process, as in the case of
printing lithography, or photography each is primary evidence of the contents of the rest,
but where there are all copies of a common original that are not primary evidence of the
contents of the original.

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SECTION 63 – SECONDARY EVIDENCE
Secondary evidence means and includes
1. Certified Copies of the original documents
2. Copies which are made from the original by mechanical processes which in themselves
assures the accuracy of the copy and copies compared with such copies
3. Copies made from (or) compared with the original
4. Counter part of the document is a secondary evidence against the party who did not sign
it
Example. Cheque is a secondary evidence against the payee
5. Oral evidence / Oral account of the contents of a document given by a person who has
himself seen the document
6. A photograph of an original is secondary evidence of its contents though the two have not
been compared if it is proved that the thing photographed was the original
7. A Copy compared with a copy of a letter made by a copying machined is secondary
evidence of the contents of the letter – if it is shown that the copy made by the copying
machined was made from the original.
8. A Copy transcribed from a copy, but afterwards compared in the original – secondary
evidence. But copy not so compared is not secondary evidence of the original although
copy from which it was transcribed was compared with original
9. Neither oral account of the copy compared with the original nor an oral account of
photograph or machined copy of the original is secondary evidence of the original
10. Newspaper reports of an interview with the author of a book is not relevant for the
purpose of proving the contents of the book.
11. The evidence embodied in a letter was held not reliable when author of the letter was not
produced and opposite party had no opportunity of cross examining him.
Case Law : Oriental fire & General Insurance Co Ltd. Vs. Chandrawati (AIR 1989 P & H
300)

SECTION -65
Cases in which secondary evidence relating to documents may be given.
Secondary evidence may be given of the existence, condition or contents of the
documents in the following cases
1. When the original is shown or appears to be in the possession or power of the person
against the whom the document is sought to be proved (or)of any person out of reach of
(or) not subject to process of the court (or) of any person legally bound to produce it and
when after the notice mentioned in Section 66 such person does not produce it.
2. When the existence, condition or contents of the original have been proved to be admitted
in writing by the person against whom it is to be proved or by his representative in
interest.

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 3. When the original has been destroyed or lost (or) when the party offering evidence of its
contents cannot, for any reason not arising from his own default or neglect produce it is
reasonable time.
4. When the original is of such a nature as not to be easily movable
5. When the original is a public document within the meaning of Section 74.
6. When the original is a public document of which a certified copy is permitted by this act
(or) by any other law in force in India to be given in evidence.
7. When the original consists of numerous accounts (or) often documents which cannot
conveniently be examined in court, and the fact to be proved is a general result of the
whole collection.
An application for production of secondary evidence should not be allowed summoning.
It should be allowed after giving opportunity of hearing to both parties

INFORMATION TECHNOLOGY ACT 2000

Consists of Section 65 A and 65 B
The contents of electronic Records may be proved in accordance with provision of section 65
–B.

SECTION 65 –B
Notwithstanding anything contained in this Act, any information contained in an electronic
record which is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be also a document, if the conditions mentioned in
this section are satisfied in relation to the information and computer in question and shall be
admissible in any proceedings, without further proof or production of the original, as evidence

CONDITIONS
 the computer output containing the information was produced by the computer during the
period over which the computer was used regularly to store or process information for the
purposes of any activities regularly carried on over that period by the person having
lawful control over the use of the computer;
 during the said period, information of the kind contained in the electronic record or of the
kind from which the information so contained is derived was regularly fed into the
computer in the ordinary course of the said activities;
 throughout the material part of the said period, the computer was operating properly or, if
not, then in respect of any period in which it was not operating properly or was out of
operation during that part of the period, was not such as to affect the electronic record or
the accuracy of its contents; and
 the information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.

Section – 65(3) –
Where over any period, the function of storing or processing information for the purposes of
any activities regularly carried on over that period was regularly performed by computers,
whether

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  by a combination of computers operating over that period; or
 by different computers operating in succession over that period; or
 by different combinations of computers operating in succession over that period; or
 in any other manner involving the successive operation over that period, in whatever
order, of one or more computers and one or more combinations of computers, all the
computers used for that purpose during that period shall be treated for the purposes of
this section

A CERTIFICATE TO THE EFFECT THAT

1. Identifying the electronic record containing the statement and describing the manner in
which it was produced.
2. Giving such particulars if any device involved in the production of that electronic record
as may be appropriate for the purpose of showing that the electronic record was produced
by the computer.

SECTION 66 RULES AS TO NOTICE TO PRODUCE

Secondary evidence of the contents of the documents shall not be given unless the party
proposing to give such secondary evidence has previously given to the party in whose possession
or power the document is or to his attorney or pleader such notice to produce it as is prescribed
by law and if no notice is prescribed by law, then such notice as the Court considers reasonable
under the circumstances of the case

Provided that such notice shall not be required in order to render secondary evidence
admissible in any of the following cases, or in any other case in which the Court thinks fit to
dispense with it –

CASES WHERE NOTICE NOT NECESSARY

 when the document to be proved is itself a notice;
 when, from the nature of the case, the adverse party must know that he will be required
to produce it;
 when it appears or is proved that the adverse party has obtained possession of the original
by fraud or force;
 when the adverse party or his agent has the original in Court;
 when the adverse party or his agent has admitted the loss of the document;
 when the person in possession of the document is out of reach of, or not subject to, the
process of the Court.

REFUSAL TO PRODUCE
When original is in possession of opposite party, a notice has to be given to him to
produce the original and it is only upon his refusal to produce - the secondary evidence can be
given
 Where original rent deed in possession of opposite party refused to produced the same
despite several (Notices and adjournment, it was held that plaintiff application for
production of secondary evidence should not have been rejected on the ground that the
copy of the note was of doubtful veracity

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  Where defendant mortgage refused to file original deed in the court, a certified copy of
the deed was allowed to be produced
 Requirements of the notice strictly complied

ORIGINAL NOT EASILY MOVABLE

 Secondary evidence can be given where the original is of such a nature as not to be easily
movable
 A thing which is movable at great inconvenience or whose movement is against public
convenience is also within his principle
 When notice is required by statue to remain fixed in a factory, secondary evidence of its
contents was allowed
 Case Law : Owner Vs. Bee Hiva Spinning co Ltd.

SECTION 67
Proof of signature and handwriting of person alleged to have signed or written document
produced.—If a document is alleged to be signed or to have been written wholly or in part by
any person, the signature or the handwriting of so much of the document as is alleged to be in
that person’s handwriting must be proved to be in his handwriting.

 Person who produces the document which the alleged is executed, signed or written by
certain person, has to prove the fact

 Where execution of promissory note was proved there was no need for any comparison of a
specimen signature with the disputed signature U/s.73 – Presumption of consideration must
arose and then it was for the executants to prove that he received no consideration in fact.

Case – Mangubhai Vs. Man Sukhrampandya AIR 1992

SECTION – 67 -A
Except in the case of a secure digital signature, if the digital signature of any subscriber is
alleged to have been affixed to an electronic record the fact that such digital signature is the
digital signature of the subscriber must be proved.

SECTION 68
 Proof of execution of document required by law to be attested.

 If a document is required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution, if there
be an attesting witness alive, and subject to the process of the Court and capable of
giving evidence

 Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a Will, which has been registered in accordance
with the provisions of Registration Act, unless its execution by the person by whom it
purports to have been executed is specifically denied

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  A document, the execution of which is required by law to be attested means, a document
the signature upon which should be put in the presence of two witnesses – who
themselves and their signatures and addresses in proof of the fact that the document was
signed in their presence – they are called attesting witnesses.

PROOF OF WILL

CHUTTANLAL VS SHANTIPRASAD

The executor was very old, infirm and could not understand the nature of the document
but offered no evidence in support of hi allegations, the court held, this did not amounts to a
specific denial of execution. There was not necessity of calling an attesting witnesses.
In case of will, the only attesting witness surviving and summoned was not able to prove
nothing, the will held to be not proved.

Rameshwari devi and anr. Vs shyam lal

Original will not produced – sole attesting witness had no recollection – no explanation given
as to why legal heirs are excluded – the sub registrar was not also produced – will could not be
said to be have been proved to the satisfaction of court

State of Haryana Vs. Rajkumar

Simple proof that the signature was that of the testator – held not enough

The requirement of attestation of will by two or more witnesses is mandatory

 Witnesses turned Hostile – scribe will avoiding the court – but appeared only when
arrested and admitted that he scribed the will and attested and thumb impression of the
executants – His evidence could be attested for holding that will was scribed by him and
duly attested in accordance with legal requirements.

 Where only one attesting witness was examined and no infirmity was found in his
testimony – court held – is sufficient to prove the will – typist simply type the will, but
put her thumb impression in the presence of testatrix.

CODICIL
Is an instrument made in relation to will – the execution and attestation of a codicil has to
be in the same manners as a Civil.

SECTION – 69
Proof where no attesting witness found If no such attesting witness can be found, or if the
document is executed in the United Kingdom two things should proved

1) That the signature of the person executing the document is in the handwriting
2) That the signature of at least one attesting witness is in his handwriting.

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 3) Where all attesting witness are dead, the court allowed the will to be proved in the
manner of any after document

SECTION -70
Admission of execution by party to attested document. Execution by himself shall be
sufficient proof of its execution as against him

SECTION 71
Proof when attesting witness denies the execution.

 If the attesting witness denies or does not recollect the execution of the document, its
execution may be proved by other evidence .
 Of the attesting witness only one was alive and he denied having attested such will, the
other witness was able to identify the signature of her dead father who was one of the
attesting witness.
 Attesting witness who is available denied the attestation – Other evidence becomes
permissible – the scribe testified as to be scribing of the will by him and attestation by
two witnesses.
SECTION 72
Proof of document not required by law to be attested.— may be proved as if it was
unattested.

SECTION 73
Comparison of signature, writing or seal with others admitted or proved.

 when the court has to satisfy itself whether the signature or seal on a document is
genuinely that of a person whose signature or seal it purports to be, the court may
compare the same with another signature or seal which is admitted or proved to be that of
the person concerned.
 An application for appointment of an expert for verification of signature should not be
rejected where the application is disputing his signature

POWER TO ASK FOR SPECIMEN HANDWRITING

Court to require the person concerned to write any words or figures to enable the court to
compare them with the words or figures in question – also applied to finger impressions.
Held : Case Laws - R Vs. Harden & Mudd V Suckermore

Example
Postman denied that the enveloped in question contained an endorsement of refusal in his
handwriting – Munsif obtained specimen handwriting of the postman and made comparison.
 In grant of war against pledge of ornaments
 Whether ship acknowledging receipt of articles was under signature of the pledge –
decide by comparing handwriting with admitted handwriting
Section 73 –A
Proof as to verification of digital signature.

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 In order to ascertain whether a digital signature is that of the person by whom it purports
to have been affixed, the Court may direct

(a) that person or the Controller or the Certifying Authority to produce the Digital Signature
Certificate;
(b) any other person to apply the public key listed in the Digital Signature Certificate and verify
the digital signature purported to have been affixed by that person

SUGGESTED QUESTION
1. Defined public documents and state how the Public documents shall be proved and admitted
as evidence ?

SECTION – 74 - PUBLIC DOCUMENTS.

The following documents are public documents

1. Documents forming the acts, or records of the acts

 of the sovereign,
 of official bodies and tribunals,
 of public officers, legislative, judicial and executive of any part of India or of the
Commonwealth or of a foreign country.

2. Public records kept in any state of private documents

 Private document like application for a license, which is filed with government office and
is produced there from does not become a public document – so as to dispense with proof
by primary evidence
 Post – Mortem report is not a public document so as to proof of identity of the dead
without producing the doctor in evidence
 An agreement entered into between Maharaja setting up a Gurudwara and statutory body
constituted by the Central Govt. for management of places of workship – public
document
 Public records are those records which a government unit is required by law to keep or
which is necessary to keep in discharge of duties imposed by law.
 Entries made by Police Office with site inspection map and site memo have been held to
be public documents.
 An Insurance Policy is not public document
 Panchanama and issuing Death certificate by Police Officer – Not a public document
BANKERS BOOK
 Records of nationalized banks held to be public document
 A record of consideration of employees for promotion transmitted before Supreme
Court by public sector undertaking (Steel Authority) 13 to 19 years old -which ruled
out the objection.
 As per the settled preposition of law laid down in Bankers Books of Evidence.

MODE OF PROOF OF PUBLIC DOCUMENTS

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76. Certified copies of public documents.
 officer having the custody of a public document, which any person has a right to inspect,
shall give that person on demand a copy of it on payment of the legal fees therefore,
together with a certificate written at the foot of such copy that it is a true copy of such
document or part thereof, as the case may be, and such certificate shall be dated and
subscribed by such officer with his name and his official title, and shall be sealed,
whenever such officer is authorized by law to make use of a seal; and such copies so
certified shall be called certified copies.

77. Proof of documents by production of certified copies.

Certified copies may be produced in proof of the contents of the public documents or
parts of the public documents

78. Proof of other official documents.

1. Acts, orders or notifications of the Central Government in any of its departments, or of the
Crown Representative or of any State Government or any department of any State Government
 by the records of the departments, certified by the head of those departments
 by any document purporting to be printed by order of any such Government or of the
Crown Representative.
2. The proceedings of the Legislatures,—
by the journals of those bodies or by published Acts or abstracts, or by copies purporting to be
printed by order of the Government concerned
3. Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any
department of Her Majesty’s Government
 " by copies or extracts contained in the London Gazette, or purporting to be printed by
the Queen’s printer;
4. The acts of the Executive or the proceedings of the Legislature of a foreign country,
 by journals published by their authority, or commonly received in that country as such, or
by a copy certified under the seal of the country or sovereign, or by a recognition thereof
in some Central Act
5. The proceedings of a municipal body in a State
 " by a copy of such proceedings, certified by the legal keeper thereof, or by a printed
book purporting to be published by the authority of state.
6.Public documents of any other class in a foreign country,
 by the original, or by a copy certified by the legal keeper thereof, with a certificate under
the seal of a Notary Public or of an Indian Consul or diplomatic agent, that the copy is

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 duly certified by the officer having the legal custody of the original, and upon proof of
the character of the document according to the law of the foreign country.

SECTION 79
Presumption as to genuineness of certified copies
 When certified copies of document is produced before the court as evidence of the
original in the circumstance in which secondary evidence is admissible, the law presumes
that the copy is a genuine to production of the original

SECTION -80
Presumption as to documents produced as record of evidence.
 Whenever any document is produced before any Court, purporting to be a record or
memorandum of the evidence, or of any part of the evidence, given by a witness in a
judicial proceeding or before any officer authorized by law to take such evidence, or to be
a statement or confession by any prisoner or accused person, taken in accordance with
law, and purporting to be signed by any Judge or Magistrate, or by any such officer as
aforesaid, the Court shall presume— that the document is genuine

SUGGESTED QUESTIONS
1. State presumption as to gazettes, Newspapers private Acts of parliament and other
documents ?

SECTION – 81
The Court shall presume the genuineness of every document purporting to be the London
Gazette, or 1[any Official Gazette, or the Government Gazette of any colony, dependency of
possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act
of Parliament of the United Kingdom printed by the Queen’s Printer, and of every document
purporting to be a document directed by any law to be kept by any person, if such document is
kept substantially in the form required by law and is produced from proper custody.
Under Section -81- Official Gazettes, News Papers or Journals and copies of the act of
parliament are presumed to be genuine

SECTION - 81A. Presumption as to Gazettes in electronic forms.—

The Court shall presume the genuineness of every electronic record purporting to be the
Official Gazette or purporting to be electronic record directed by any law to be kept by any
person, if such electronic record is kept substantially in the form required by law and is produced
from proper custody

SECTION 82

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 Presumption as to document admissible in England without proof of seal or signature.—

 When any document is produced before any Court, purporting to be a document which,
by the law in force for the time being in England or Ireland, would be admissible in proof
of any particular in any Court of Justice in England or Ireland, without proof of the seal
or stamp or signature authenticating it, or of the judicial or official character claimed by
the person by whom it purports to be signed, the Court shall presume that such seal,
stamp or signature is genuine, and that the person signing it held, at the time when he
signed it, the judicial or official character which he claims,

Case : City Bank NA New Delhi Vs. J.K. Jute mills

SECTION 83
Presumption as to maps or plans made by authority of Government.

 made with authority of central or state government are presumed to be accurate Maps or
plans made for the Purpose to be accurate maps or plans made for the purpose of any
cause must of course be proved to be accurate.

SECTION 84
Presumption as to collections of laws and reports of decisions.
 The Court shall presume the genuineness of every book purporting to be printed or
published under the authority of the Government of any country, and to contain any of
the laws of that country, and of every book purporting to contain reports of decisions of
the Courts of such country.

SECTION 85
Presumption as to powers-of-attorney.
 The Court shall presume that every document purporting to be a power-of-attorney, and
to have been executed before, and authenticated by, a Notary Public, or any Court, Judge,
Magistrate, Indian Consul or Vice-Consul, or representative of Central Government was
so executed and authenticated.

Case Law :Jagrajsingh Vs. Jaswant Sigh

The power of Attorney executed on behalf of a bank and attested by Notary public created
the presumption that the power was validity delegated and the executants were duly authorized to
do so

Case Law: City Bank Na New Delhi Vs. Jaggilal Kamlapat Jute mill

Section 85 – A - Presumption as to electronic agreements.

 When an electronic record purports to be an electronic agreement made through digital

signatures, the court has to presume that the agreement was concluded as it purports to be
namely, by affixing the digital signatures of the parties

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SECTION 85-B - Presumption as to electronic records and digital signatures

 Where a proceedings involves a secure electronic record, the court has to presume that
the record was not altered since the specific part of time to which the secure status related
 Evidence may be produced in rebuttal of the presumption

DEFINE SECURE SYSTEM

Section 2 (Ze) of IT Act.

"secure system" means computer hardware, software, and procedure that-

a) are reasonably secure from unauthorized access and misuse
b) provide a reasonable level of reliability and correct operation
c) are reasonably suited to performing the intended functions; and
d) adhere to generally accepted security procedures;

SECTION 85 –C
Presumption as to 86 Electronic Signature Certificates
 The Court shall presume, unless contrary is proved, that the information listed in a digital
Signature Certificate is correct, except for information specified as subscriber
information which has not been verfied, if the certificate was accepted by the subscriber.

SECTION 86
Presumption as to certified copies of foreign judicial records.
 The Court may presume that any document purporting to be a certified copy of any
judicial record of any country not forming part of India] or of Her Majesty’s dominions
is genuine and accurate, if the document purports to be certified in any manner which is
certified by any representative of Central Government in or for such country to be the
manner commonly in use in that country for the certification of copies of judicial records.

SECTION 87
Presumption as to books, maps and charts
 Books, Charts, Maps etc produced before the Court in proof of a fact in issue or relevant
fact and which appears from the book
 The Court shall Presume that books, maps, charts was written by the person whos name
is shown as that of the author and was published at the place where it says it was
published
 The Presumption is in the discretion of the Court

SECTION 88

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 In reference to messages transmitted through Telegrammes, the court may presume that
the messages delivered to be addressee corresponds with the message was mean for the person
whom it is purported to be delivered. The presumption is not to be made as to person by whom
they were delivered.

SECTION 88 –A
Presumption as to electronic messages.
 The Court may presume that an electronic message, forwarded by the originator through
an electronic mail server to the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission; but the Court
shall not make any presumption as to the person by whom such message was sent

SECTION – 89
Presumption as to due execution, etc., of documents not produced
 Where a document ha been called for but not produced the court, Court shall presume
that the document in question was duly signed, stamped and attested. The presumption is
that the document was in all respects in accordance with the law. The presumption is
compulsory and not discretion of Court.

SECTION - 90
Presumption as to documents thirty years old.
 Where any document, purporting or proved to be thirty years old, is produced from any
custody which the Court in the particular case considers proper, the Court may presume
that the signature and every other part of such document, which purports to be in the
handwriting of any particular person, is in that person’s handwriting, and, in the case of a
document executed or attested, that it was duly executed and attested by the persons by
whom it purports to be executed and attested.

ILLUSTRATION
1. A has been in possession of landed property for long time. He produces from his custody
of deeds relating to the land showing his titles to it. The custody is proper
2. A produces deeds relating to landed property of which he is the mortgagee, the mortgagor
is in possession. The custody is proper.
A document which is 30 yrs old is presumed to be genuine. Presumed to be genuine in all
respects.

CONDITIONS
1. Document should 30 years old.

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 2. Should be produced from custody which appears to the court to be proper.

PROPER CUSTODY
1. The place where the document in question would naturally be
2. was under the cone of person with whom it would naturally be
3. Any custody which is proved to have had legitimate origin
4. Under the circumstances of the case the custody from which the Instrument is produced is
probable.
Example.
Deed relating to affairs of the family produced from custody of the Mother

Case Darshan Sign Vs. P Vashu Sigh

A Record of settlement produced from the custody of settlement officer

Case Narayana Amma Vs. Padmanabha Pillai

 Where the will was produced by a person who was named in it and who fails to account
for the origin of his Custody
 Where 3 partition deeds each meant for different parties to partition, were all produced by
one of them only – Custody is proper-
 No presumption as to correctness
 No occasion for presumption where there is no signature or any body’s name in the
document
 No presumption as to authority of person executing the document to do what the
document purports to do.
 No presumption as to copies – presumption only about the original document and not
about copy of the Original

WILLS
 Presumption only necessary for the party claiming the will to make averments in his
pleadings that will acted upon after death of testator. That he was in sound state of
mind. At the time of execution that it was duly attested and that it was last will.
 A gift cum will – document produced from proper custody and was also thirty years
old was presumed to be genuine.

SECTION 90 – A

Presumption as to electronic records five years old

 Where any electronic record, purports to be or proved to be five years old, is
produced from any custody which the Court in the particular case considers proper,
the Court may presume that the digital signature which purports to be the digital
signature of any person authorized by him in this behalf.

SUGGESTED QUESTIONS

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Oral Evidence cannot be adduced to vary the contents of a document – Elucidate and state
exceptions if any?

SECTION 91 – BEST EVIDENCE RULE

One of the fundamental principal of the law of evidence is that in all cases the best
evidence should given, where fact proved is embodied in the document, the document is the best
evidence. It shall be proved by adducing primary or secondary evidence of document.
 Whatever is in writing must be proved by writing
 Transactions which have voluntarily made in writing – for which writing is compulsory
document by transfer of property of value Rs. 100/- and upwards – required to be in writing –
which excludes oral evidence strictly – prohibits proof of contents of a writing otherwise than
by writing itself.

Roop kopoor Vs. Mohan Thedani

An oral account of content of document can however be given by person who has been the
document in which secondary evidence of document is permissible

State of Kerala Vs. M.A.Babu

Exclusion confined to Contract, grant or disposition

Once any such contract, grant or disposition has been proved only by writing, no evidence
can be given of any oral agreement – to contradict or charge the terms of contract.

AS PER SECTION 92
 When the terms of any such contract, grant or other disposition of property, or any matter
required by law to be reduced to the form of a document, have been proved as per Section
91- no evidence of any oral agreement or statement shall be admitted,

Illustration
1. A Policy of insurance is offered on goods in ships from Calcutta to London. Goods are
shipped was orally excepted from the policy cannot be produced.

2. A agreed absolutely involving to pay B Rs. 1000/- on 1st March 1973. At the same time
oral agreement was made that the money should not be paid till on march 31st cannot be
proved.
Exceptions
1. Validity of document ( Section 92 (1)

 Oral evidence can be given of any fact will would invalidate the document, or which
would entitle any person to any decree or order relating the document on the ground of
fraud, intimidation, illegality,
 Document not duly executed incompetency of parties to document at the time of
execution etc.
 Oral evidence can be permitted.

2. Matters on which document is silent ( Section 92 (2)

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Oral evidence is permitted with 2 conditions
1. Oral agreement should not be inconsistent with terms of documents
2. permitting oral evidence, Court has to regard formality of document

3. Condition precedent ( Section 92 (3)

Document signed and issued subject to condition. Which not mentioned in document and
that of is agreed by parties that inability under document would not arise until condition is
fulfilled - Oral evidence is permitted.

4. RECESSION OR MODFICATION ( SECTION 92 (4) )

 To rescind means to set aside

 To modify means – to drop some of its items – oral evidence is permitted as agreed.

5. USAGE OF CUSTOMS – { Section 92 (5) }

 Many business contracts operates subject to usages or customs of particular trade /
business or market – usages and customs not be mentioned in contract as it were of
common knowledge
 Existence of particular custom / Usage attached to particular contract – can be proved by
adducing oral Evidence.

6.RELATION OF LANGUAGE TO FACTS { Section 92 (6)}

Sometimes document is omitted to clearly mention the purpose or name example. In sale
deed mention transfer of property, but not mentioned what is property – in such case oral
evidence cab be permitted.

7. APPOINTMENT OF PUBLIC OFFICER {SECTION 91 (1) }

Appointment required to be made by law by writing – Whether appointment was made or

not show that particular person has acted.

8. WILLS SECTION 91 (2)

 Wills admitted to probate in India may be provided by the probate.

 Document containing will need not be produced. Probate is a copy of will certified under
seal of court – is sufficient to prove the will.

9.EXTRANEOUS FACTS SECTION 91 (3)

In Contract of sale of good mentioned that good supplied on earlier occasions have been
paid for – is not a term of contract – an extraneous fact – oral evidence can be given to show that
no payment was made.

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SUGGESTED QUESTION
State the essentials of valid Dying declaration and discuss its evidentiary value ?

 Dying declaration means the statement of person who has died explaining the
circumstances of his death- As per English Law – the statement is relevant only when the
charge is murder or Manslaughter.
 R Vs. Wood Cock – prisoner was charged with murder of is wife. Her statements as to
circumstances of death were recorded by a Magistrate. Death caused 48 Hrs often his –
she constantly and repeatedly states circumstances of ill treatment meted doubt to her and
she remain conscious till the last moment.
 Declaration must be made at a time when the matter is under settled and hopeless
exception of death -R Vs. Jenkins.
 It is necessary that the deceased should have completed his statement -Wagh Vs. R.
 The deceased who was Victim of shooting volunteered a statement to police but before
completing it fell into Coma stage from which he never recovers. Such dying declaration
of oral admissible because on fact it was not completed and no one can tell what the
deceased was about to add oral and that was any event, a serious event to admit it
 where a declaration is oral, it is desirable that as far as possible the whole of it shall be
proved – though it remain valid. Even if the witness is not a such remember the whole of
it.
 A dying declaration may be made by sign when injured person is unable to speak

SECTION 32 EVIDENCE ACT

 Anticipation of death not necessary
 If the declarant has infact died, and statement explains the circumstances surrounding the
death, the statement is relevant - Pakala Narayana Swami Vs. Emperor
 It must be at any rate near the death that circumstances can only includes acts done when
and where the deaths was caused.
 The statement may be made before the cause of death has arisen or before the deceased
has any reason to anticipate being killed.

STATEMENT OF ACCUSED UNDER SECTION 162 CR.P.C.

Statement to the Police that deceased arrived at the place was held to be not relevant
statement made to police office in court of investigation or inquire cannot be used against him.

PROXIMITY OF TIME BETWEEN STATEMENT AND DEATH.

 Young married women speaking to her parents relatives and also writ5intg them
expressing danger to her life – she died after 3 or 4 months later. Her statement was
admitted as it shown circumstances of death

 Kaushal rao Vs State of Bombay

Two Rival factors of workers in a mill area in Nagpur – attacked each other with violence
– in one violent attack. babaram inflicted with numerous wounds in a street at 9 P.M.

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 taken to Hospital by father at 9.25 P.M on the way to Hospital told, he was attacked by 4
persons with swords and spears two of whom he identified as Kaushal and Thukaram.
Doctor questioned him and recorded the statement – Sub inspector also questioned him
and recorded statement by 11.35 P.M. A Magistrate also appeared and doctor certified
that injured was in fit condition to make statement Magistrate also recorded. He died next
Morning.
 Dying declaration must be corroborated by after evidence before it can be acted upon.
 It is not safe to convict an accused person on the evidence furnished by a Dying
declaration without further corroboration because such statement was not made on oath
and not subject to Cross examination.
 Murder took place at Dark night. There was no light a available not the place – Court
ruled out the declaration in question was not dependable

ESSENTIALS
1. There is no absolute rule of Law that a dying declaration cannot be the sole basis of
conviction unless corroborated.
2. Each must go by its own facts
3. A Dying declaration is not a weaker kind of evidence than any other piece of evidence.
4. Dying declaration properly recorded, by a competent Magistrate i.e.in the form of
question and answer as far as possible in the words of the maker of the declaration is
reliable.
Not necessary to record declaration in the form of question and answer, if it is in terms of
the actual words spoken by the deceased - Ram Bihari Yadav Vs. State of Bihar
5. To test the reliability of dying declaration, the court has to keep in view the
circumstances like the opportunity of the dying man of observation.

 When dying declaration made to relatives of deceased when properly proved can also be
trusted - Barati Vs. State of U.P.
 The declaration made by father against his Son – court has to proceed to convict
trustfulness of declaration can also be accepted - Lallu Bhai Dava Chand Shah Vs. State
of Gujarat
 FIR as dying Declaration and statement recorded by the Police
 When an injured person lodged FIR and then died - held to be relevant as dying
declaration
 A Declaration note down by S.I. of Police even before any FIR was lodged supreme
Court held it is acceptable.

COMPLAINT AS DYING DECLARATION

A Women was called by her relatives in connection with property dispute. On her
arrival kerosene was poured on her and she was set ablaze. She died 4 days later –
statement in nature of complaint was recorded by Police officer in Hospital – Later same
was taken as Dying Declaration.
CONTRADICTION BETWEEN FIR AND DYING DECLARATION

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 The circumstances leading to death was differently stated in FIR, Deposition of witnesses
and Dying declaration. It was sound that in statement has given exaggerated version in FIR –
Court held dying declaration which was otherwise found to be reliable was not to be rejected.

IDEMNIFICATION THROUGH DYING DECLARATION

One of the chief Function of a dying declaration as a piece of evidence is the property
identification of the assailant.

STATEMENTS MADE BY SIGN IS ADMITTED A VALID DYING DECLARATION

LANGUAGE OF STATEMENT

 Statement was in Telungu and doctor recorded it in English. Precaution of explaining the
statement to the injured person by another Doctor was taken
 Statement held to be valid, dying declaration,

Oral Declaration : Statement made orally by person who was struck down by lathi charge on
his head – which was narrated by the witness who lodged the FIR as a part of FIR was accepted
as reliable statement of Dying Declaration

THUMB IMPRESSION
A Dying declaration authenticated by thumb impression was considered to be doubtful in
view of the fact that the victim was sustained 100 % burns

WHERE DECLARANT SURVIVES

Where the Declarant survives his statement cannot be used as dying declaration. As long
as the maker of statement is alive it remain only the realm of statement recorded during the
investigation.

MEDICAL REPORT
The Doctor in Hospital clearly recorded in accident register of the Hospital that patient
was amcious, her orientation as good, he answered well the question put to her. Her statement
could not be discarded on the basis of her injury or post mortem report in which it was said that
having regad to name of injuries sustained by the deceased she could not have been in a position
to make a statement

DOWRY DEATH / WIFE BURNINGS ETC

Dying declaration corroborated by other circumstances are sufficient to bring to home
offence. The death of married women in the matrimonial home 3 or 4 months after her statement
expressing danger to her life – held the statement explaining circumstances of her death –
admissible evidence.

SUGGESTED QUESTION

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 What is means by Burden of Proof. It is said that the Burden of proof may shift on the
court of suit or prosecution. Explain with illustrations ?

SECTION 101 - BURDEN OF PROOF.

When a person is bound to prove the existence of any fact, it is said that the burden of proof
lies on that person.
- Whoever desires any Court to give judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove that those facts exist.

Illustrations
1. A desires a Court to give judgment that B shall be punished for a crime which A says B has
committed. A must prove that B has committed the crime.

 Initial burden on one who takes affirmative of the issues

 Person who asserts the affirmative of an issue the burden of proof lies on him to prove
that fact.
 A person who question the dead on the ground of fraud has to prove that fact - Case.
Krishaprasad Vs. Gopal Prasad
 Person wants to recover possession of a land from the occupier on the ground that heir
the owner of it.
 He must prove his ownership.
 Similarly person wants the court to punish a man for theft, which he alleged be
committed by that person, he must prove that fact - Case Law : Chenga Reddy Vs. State
of A.P.
In matrimonial cases, the burden of proof relating to civil cases are applicable.
 A Man seeking divorce on the ground of wife’s mental disorder has to prove that fact,
and bear the expenses of medical examination. No adverse presumption was raised in
favor of wife’s financial inability to go for medical checkup -Case Law : Rekha Vs
Ravindrakumar

BURDEN AND ONUS

 Onus is always on a person into assests a proposition or a fact which is not self evidence
 Onus is not an a person making assertion because it is self evidence.
 To asset that a man who is alive was born requires no proof – But to assert that he was
born on a certain date of the date is material requires Proof.
 Onus is sometimes on contending party and sometimes on opposite partly.
Burden of Proof has two distinct meaning
1. Burden of Proof as a matter of law and pleadings
2. Burden of proof as a matter of adducing evidence first remains constant, second shifts
 In any claim application, the burden of proof first on claimant if his evidence is found to
be acceptable, the must shift to tort-feaosrs to prove circumstances if any which disproves
the assertion of claimant.
- In Criminal cases – the initial burden lies on prosecution to prove the accused is guilty of
the crime with which he is changed. The prosecution asserts the affirmative of the issue
therefore has to prove the case. The Onus is shifted to accused to show as to why he

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 should not be punished for it. The evidential onus keeps shifting during the course of
proceedings - Case. Inre Dunlop holdings application (1979) SC 523

SECTION 102
The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.

Illustrations
A sues B for land of which B is in possession, and which, as A asserts, was left to A by
the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain
his possession. Therefore the burden of proof is on A.
 In cases of insanity of unsoundness of mind, the burden of proving that fact lies on the
person who wants to rely on his, Law presume insanity. But in some cases, burden of proof
falls on the person who is beneficiary under the transaction.
 In cases of adoption – as it was serious change in the life of involve parties because it alter
the line of succession. Hence those who alleged that there was adoption would have to prove
its fact as well as its validity.
 When dishonor of cheque has been proved and the accused wants to defend himself that
there was no liability or no debt for which he had issue cheques. Initial burden on drawee,
then it shifts on drawer to deny the issuance.
 In case of will, the initial burden is on the person who relies on it and this burden become
heavier when there are suspicious circumstances- Case Law : Probadh Numar Dar Vs.
Prafullakumar Da.
 A Married women was driven out of matrimonial home by ill treatment, she filed case for
recover of jewels and also articles- her in laws contented that she had taken away with her –
court held there is no presumption that she had done so. The burden of proof lies on inlaws
to prove that fact. -Case Kamini Vs. Paran Chandra
 Disciplinary Proceedings – The burden of proof is neither always not necessarily on the
Department

BURDEN OF PROOF IN CASES OF EXCEPTION –

SECTION 105
A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know
the nature of the act. The burden of proof is on A.

PRESUMPTION INNOCENCE
 In criminal cases, Every person accused of a crime is always presumed to be innocent, so
the burden of proof lies on prosecution to establish the commission of crime by that
person beyond reasonable doubt.
 Onus to over throw statutory presumption
 Where the statutory presumption of innocence is reversed by statutory presumption, so
that the burden is on the person accused to who onus lies affirmatively an prosecution to
prove its case the onus of the prosecution never shifts.

SUGGESTED QUESTION

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Explain in detail the privileged communication under Indian Evidence Act?
There are certain matters which a witness cannot either be compelled to disclose or even
If the witness is willing to disclose, he will not be permitted to do so – such matters one known
as privileged communications

SECTION 122– COMMUNICATIONS DURING MARRIAGE

No person who is or has been married, shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married; nor shall he be
permitted to disclose any such communication, unless the person who made it, or his
representative in interest, consents, except in suits between married persons, or proceedings in
which one married person is prosecuted for any crime committed against the other.

Section 122
 Prevents communications between man and wife from being disclosed.
 Communications and transactions between husband and wife were early recognized as
privileged and neither could be compelled to disclose what took place between them – it
applies to all type of transaction between husband and wife
EXCEPTIONS
1. Act apart from communications
2. Evidence by third persons
3. Waiver of privilege
4. Crimes of suit between married persons
5. If a husband is being prosecuted for an offence which he has committed against his wife
the wife may disclose any communication made to her by the Husband and which is
relevant such communication remain protected even after be dissolutions of marriage.
But those made either before marriage or after its dissolution are not protected.
6. Communications or conversation between husband and wife taking place in the presence
of a third parties or when over heard by a third person can be testified to by third person.
This privilege is that of the parties to marriage and not to others. -Case T.J. Ponnan Vs.
M.C. Verghese AIR 1967 Kerala
7. Certain letters written by man to his wife containing matters defamatory of her father
were passed on her to her father, who wanted to prove them. But evidence of them was
rejected. Evidence of privileged communication can be given by a spouse with the
consent of the party who made the communication (or) with the agent of his
representative in interest – This is know as Waiver of the privilege.

SUGGESTED QUESTION
EXPLAIN THE RULE OF RES GESTAE ?

SECTION 6 – RES GESTAE

Relevancy of facts forming part of same transaction
 Facts which, though not in issue, are so connected with a fact in issue as to form part of
the same transaction, are relevant, whether they occurred at the same time and place or at
different times and places.

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Illustrations
A is accused of the murder of B by beating him. Whatever was said or done by A or B or
the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is
a relevant fact.

 Whenever a transaction such a contract or a crime, is a fact in issue, then evidence can be
given of every fact which forms part of the same transactions. The fact which surrounded
the happening of an event are its Res Gestae
Illustration
RATTEN VS THE QUEEN
A man was prosecuted for the murder of his wife. His defence was that the shot went off
accidently. There was evidence to the effect that the defendant telephoned to say “ Get me the
police Please” before the operator would connect the police, the caller, who spoke in distress
gave her address and he call suddenly ended. There after the police came into house and found
the body of dead women. Her call and words she spoke were held to be relevant as a part of the
transaction which brought about her death. Her call in distress showed that the shooting in
question was intentional and not accidental.

ACT (OR) OMISSION AS RES GESTAE

So far as acts and transactions accompanying a transaction we covered. Much difficult
does not arise. Nature of transaction indicates itself that what should be its essential parts.

Illustration
There is a conspiracy to overthrow the Govt. of India by force, funds for this purpose
raised in Calcuttaarms and a ammonization at madras, task force trained in Bomby. All these acts
isolated in time and space over still the parts of the same transaction.
Statement as Res Gestae
Statement may also accompany physical happenings.

Illustration
An injured person is naturally bound to cry he may cry under pain or for help or spell out
her name and description of his attackers
Case
R Vs. Bending Field
A woman with her throat out, came suddenly out of a room, in which she had been
injured and shortly before she died said “ Oh dear Aunt” see what Bending Field has
done to me” Statement was not admissible – Anything uttered by the deceased at the time the act
was being done would be admissible . But here, it was something stated by her after it was all
over – The words should be at least de recent and not after an interval which would allow time
for recollection and concocting story.

RES GESTAE AND HEARSAY

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 Hearsay means statement of a person who has not seen the happening of the transaction
but has heard of it from others. Person himself witnesses the accident, can give account of it
before Court, but his wife who heard of it from his husband cannot give evidence of what her
husband to do her, her knowledge being hearsay.
In R Vs. Foster, the witness had only seen a speeding vehicle, but not the accident. The
injured explained him the nature of the accident. He was allowed to give evidence of what the
deceased said, although it was only derived knowledge, it being a part of Res Gestae.

RELVANCY OF CHARACTER

SECTION 52
In civil cases character to prove conduct imputed, irrelevant.—In civil cases, the fact that
the character of any person concerned is such as to render probable or improbable any conduct
imputed to him, is irrelevant, except in so far as such character appears from facts otherwise
relevant.
Evidence of the parties character cannot be given for the purpose of showing that it
render the conduct imputed to him as probate or improbable

Illustration
If a person charged with negligent driving he cannot given evidence of the fact that his
character and Conduct has been such that he could not have been guilty of negligence
Exceptions
1. Character as affecting damages
2. When Character is in issue
3. When Character appears from other relevant evidence
In Criminal cases
Previous good character –relevant – accused is at liberty to give evidence of the fact that
he is a man of good character

SECTION 54
 Previous bad character not relevant, except in reply
 If does not apply to cases in which the bad character of any person is itself a fact in issue.
 A previous conviction is relevant as evidence of bad character.
 When prosecution can give evidence of bad character prosecution cannot lead evidence
of the bad character of the accused as part of its original case. They can produce evidence
of bad character only in reply to the accused showing his good character
Exceptions
1. To rebut prior evidence of good character
2. When Character is in issues
3. When otherwise relevant.
SECTION 55
Character as affecting damages in Civil Cases the fact that the character of any person is
such as to affect the amount of damages which he ought to receive is relevant.

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 1. To prove the good or bad character evidence can be given both of reputation and
disposition.
2. Evidence can be given of previous convictions in proof of bad character
3. Evidence cannot be given of particular fact but only of general reputation and eye
disposition.

Character and reputation have various meanings

 Character : What he in fact is
 Reputation : What other people think he is
Thus evidence must refer to reputation in his sense and not to his own personality or a
disposition. Previous conviction is relevant evidence of bad character.
Case Law : Goody Vs. Odhams Press Ltd.

PLEA OF ALIBI - SECTION 11

When facts not otherwise relevant become relevant.

1. if they are inconsistent with any fact in issue or relevant fact

2. if by themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable
In Consistent facts

ALIBI
Evidence can be given of facts, which have no other connection with the main facts of a
case. Except this that they are inconsistent with a fact in issue or a relevant fact.
 Person charged with crime to take what is commonly called the plea of Alibi – which
means his presence elsewhere at the time of the crime

Illustration
 Person charged with murder which took place at Calcutta. He can take the defence that on
that day in question he was in Bombay. In order to prove his presence in Bombay he may
show his attendance at some place –
 He visited a doctor or Vakil and he noted his visit in his professional diary – or that he
posted a letter written by himself on that day from Bombay or that he encashed a cheque
at Bombay
 A Distance of 400 – 500 yards between the place of occurrence and place where the
accused claimed to be present was held to be not amounting to “present else where”
FACT SHOWING PROBABILITIES
Evidence can be given or every fact which by itself or in connection with other facts the
existence or non existence of fact in issue
Fact may think highly improbable one also relevant.

Case Law : Santa sigh Vs. State of Punjab.

 Witness testified that they saw the deceased being shot from a distance of 25 feet. The
medical report shows that the nature of the wound was such that it could have been
caused only from a distance less than a yard. Then expert opinion rendered the statement
of witness highly improbable.

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  Presence of finger print at the scene of occurrence is positive evidence but the absence of
a finger print is not enough to foreclose the presence of persons concerned at the scene.

Case Law : Gade lakshmi Mangraju Vs. State of A.P.

LEADING QUESTIONS - SECTION 141

Any question suggesting the answer which the person putting it wishes or expects to
receive, is called a leading question.

SECTION 142
When they must not be asked.
 Leading questions must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or
undisputed, or which have, in its opinion, been already sufficiently proved.

SECTION 143
When they may be asked. Leading questions may be asked in cross-examination.

 Leading questions is permitted in examination in chief, the lawyer question as him would
be able to answer through the mouth of witness a story that suit his client
 A suit trial of the accused is not possible if the prosecution can ask leading questions to a
witness on a material part of his evidence against the accused. The Court has got
discretionary power either to permit or dis allows the leading questions.

leading questions can always be asked in Cross examination

1. When they are not objected by the opposite party

2. Where the opposite party objects but the court over rules the objection
3. Where they deal with matter of undisputed or introductory nature or the matter in
question has already been satisfactorily proved.
4. Leading questions may always be asked in Cross examination

EXPERT OPINION – SECTION 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

The courts have been accustomed to act on the opinion of experts from early time. There
are many matters which require professional (or) special knowledge which the court may not
posses and may therefore rely on those posses it.

Case Law: In Abdul Rahman Vs. Statement of Mysore

Where the opinion of goldsmith as to the purity of the gold in question was held to be
relevant

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Expert is competent to testify.
1. Foreign Law
2. Matters of science
3. Question of art
4. Identity of Handwriting
5. finger Impression./

 The shia law on marriage is the law of the land and in force in India. It can no means
called foreign law no such law a science or art.
 A person who prosecuted for stabbing his wife to death and he claimed to have done
so in sleep. The medical evidence of a psychiatrist on the question of automatism was
allowed
 Determination of Age – Age of rape victim was fixed by doctor only and clinical
examination or ossification test or other pathological test
 For ascertaining the handwriting or finger impressions identification – the court has
acquired an expertise on the matter- An expert can certify only probability and not
proof.

VALUE OF EXPERT OPINION

The value of expert opinion has to be viewed in the light of many adverse factors.
1. There is the danger of error (or) to deliberate false hood.
2. These privileged person might behalf blind in competent or even corrupt.
3. His evidence is after all opinion and human Judgment is fallible . Human knowledge is
limited and imperfect. No man ever mastered all the knowledge many of sciences. The
value of technical evidence, like that of medical evidence also depends upon the
circumstances of the case. The testimony of a doctor on the point of time at which
injuries were caused can never be absolutely certain.

CORROBORATION NOT NECESSARY

An Expert should be an independent person and not an associate of the company in
whose favour his opinion was expressed.

ACCOMPLICE - SECTION 133

 An accomplice shall be a competent witness against an accused person and a conviction
is not illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice.
 A person who observes a crime being committed but does nothing to prevent or report it
is not an accomplice. But a person who acts as a watchman which his comrades execute
the design is an accomplice.
 A person who occupying public path without license is committing a crime, and
subsequently makes a complaint against a police man for extracting money from him, he
is not an accomplice o the crime of giving bribe.

Corroboration as Rule of caution

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 The evidence of an accomplice should stand the test of verification at least in main
points. This is called corroboration.

Reason which necessitates corrobation.

1. He has been criminal himself and therefore his testimony should not carry the same
respect as fact of a law abiding citized.
2. He has been faithless to his companions and may be faithful to the court because he has
motive to shift the guilt from himself to his former companion.
3. If he is an approver, he has been favoured by the state and is therefore likely to favour the
state.

The Rule of Practice now becomes rules of law as held in Davies Vs. Director of Public
prosecutions- once corroboration in material particulars is found, the testimony of an accomplice
can be the basis of conviction.
In R Vs. Stubbs
The evidence of a accomplice must be confirmed not only the circumstances of the crime
but also as the identity of the prisoner.
The statement made before the Magistrate by the accomplice for the purpose of securing
pardon can be used as corroborative material.

In Ram Prasad Vs. State of Bihar

The accomplice did not disclose the name of one of the accused person when questioned
by police office before whom he offered to confess for securing burden. There must be an
additional evidence rendering it probable that the story of the accomplice is true in respect of
each accused person.
Corroboration is a common point between the victim of rape and an accomplice because
though the women who has been raped is not an accomplice, but her evidence has been treated
by the courts on somewhat similar lines

RAPE IN CUSTODY
A Prosecution of a sex offence cannot be put as par with an accomplice. The accomplice
in order to refresh his memory was permitted to consult his diary. The diary of an accomplice
can only have the status of an aid –memoire.

CROSS EXAMINATION – SECTION 138

 Cross examination must be confined to relevant facts, but cross examination need not be
confined to facts touched in the examination in chief. If the chief examination does not go
round all the relevant facts, they may be exposed in cross examination – cross
examination can extent to all the relevant facts, whether touched in the chief examination
or not.
 The purpose of cross examination is to expose the truth about the testimony of the
witness. But is not the only method of discrediting a witness.
 Where a witness refused to appear for cross examination after having been examined in
chief held his evidence lost credibility. Where opportunity for Cross examination has
been given but has not been used at all used partly does not demolish the testimony of the
witness.

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SECTION 139
Cross-examination of person called to produce a document.
 A person summoned to produce a document does not become a witness by the mere fact
that he produces it, and cannot be cross-examined unless and until he is called as a
witness.
 A witness cannot be thrown open to cross examination unless he first examined in chief
leading questions may always be asked in Cross examination.
 Cross examination may be permitted against the witness as to his previous written
statement which are relevant to the issue without showing of him such writing or proving
it.

Credit of witness may be impeached

To test the memory of witness or to contradict him by previous statement in writing.

Question Lawful In Cross Examination

1. To test veracity of witness
2. To discover who he is and what is hi position in life
3. To shake his credit by injuring his character
4. Protection against aggressive Cross examination.

SECTION 148
In Course of Cross examination the question asked to the witness is not relevant to the
facts, but is asked only to shake his credit by exposing his character, the court has to decide
whether (or) not the witness shall be compelled to answer it.

 Questions not be asked without reasonable grounds.

 Forbid the questions or inquiry which regards to indecent and scandalous question
 Forbid question intended to insult or annoy.

REFRESHING THE MEMORY – SECTION 159

 A witness may, while under examination, refresh his memory by referring to any writing
made by himself at the time of the transaction concerning which he is questioned, or so
soon afterwards that the Court considers it likely that the transaction was at that time
fresh in his memory.
 Whenever a witness may refresh his memory by reference to any document, he may, with
the permission of the Court, refer to a copy of such document

Materials used for refreshing memory.

1. Writing made by him either at the time of happening or within the short time after the
happening must have been still fresh in his mind and when he was recording it.
2. Any writing made by him by any other person about the transaction and which was read
by the witness within the time mentioned.
3. Any professional books where the witness is an expert.

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Investigation office refreshing memory by his record
An Investigating officer was allowed to refresh his memory about the matter on which he
was testifying by looking at the contemporaneous record made by him.
Case. State of Karnataka Vs R. Yarappa Reddy
A witness may refresh his memory from a writing made by a no other person and
inspected and signed by him at the close of the day on which it was made re collection of
memory is permitted.

IDENTIFICATION PARADE – SECTION 9

 Facts necessary to explain or introduce relevant facts.
 The evidence of test identification parade has been explained in Ramanathan Vs. State of
Tamil Nadu –Identification parade has been in common use for very long time for the
object of placing the suspect in a line up with other persons for identification purpose is
to find out whether he is perpetrator of the crime. Identification is in the interest of both
the accused and the investigating agency.
 It enables the investigating officer to ascertain whether the witness had really seen the
perpetrator of the crime and test their capacity to identify him and thereby to fill the gap
in the identification regarding the identity of culprit - State Delhi Administration Vs. V.C.
Shukla
 Identification of the accused by the witness for the first time in the court without being
tested by a prior test identification parade was useless.
 The evidence given by the witness earlier in court was substantive testimony while the
identification made by him at the parade was confirmatory of that fact- State of A.P. Vs.
V.K. Venkata Reddy
 The Holding of It parade is not compulsory and failure to hold is not fatal to the
prosecution where accused persons were previously known to the witnesses and their
names also approved in the FIR.
 Even where the accused demands IT Parade the prosecution is not bound to do to so.
Case will not weakened due to absence of IT parade - Surendra Narain Vs. State of A.P.

Identification through evidence of similar facts

Identification through a photograph can take the place of a formal task identification
parade -Case Lakshmi raj Shetty Vs. State of T.N.

IDENTIFICATION IN COURT
Under Section 161 of Cr.P.C. child witness told to police, that 3 persons involved in the
incident, even so test identification parade was held- Court held mere lock identification of
accused by the child could not be accepted, with certainty as reliable identification.
Case Bhagwan Sing Vs. State of M.P.

IDENTIFICATION ON VIDEO RECORDING

The relevancy of identification of the suspect by a witness who was not present at the
scene of the crime, but know the suspect and recognized him on video recording depends upon
whether the witness needed for this purpose. Special Skills and experience.

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IDENTITY OF THINGS
 In Earabha Drappa Vs. State of Karnataka case of Murder and robbery. The police
recovered robbed articles valuable sarees and ornaments. Lady of the house was called
and she identified them in the court as articles belonging to the deceased.
 It is a matter of common knowledge that ladies have an uncanny sense of identifying
their own belongings particularly articles of personal use in the family.
 Where the witness who identified articles in question during investigation were not
produced before the court. Held that their evidence remained only a hearsay and could
not be sued as corroborative evidence. The Ornaments of the deceased lady victim were
identified by her two sons during test identification parade. Daughter also participated in
the identification but was not cross examined. The non examination of daughter of the
deceased need not be taken as serious flaws which could vitually affect the prosecution
evidence regarding the identification of the ornaments.

JUDICIAL NOTICE - SECTION 57

The Court shall take judicial notice of the following facts.
1. All laws in force in the territory of India
2. All acts of British parliament and all local and personal acts directed by the British
Parliament to be Judicially noticed.
3. Articles of war for the Indian Army, Navy, Air force.
4. The Course of proceedings of the British parliament of the constituent assembly in India
and of parliament and legislative established under any law in force in India.
5. The accession and the sign manual of the sovereign of the united Kingdom and Ireland.
6. All seals of which English Courts take Judicial notice the seals of all seals of all courts in
India, all court outside India established by the authority of central Government or the
crown representative, the seals of court of admiralty and maritime Jurisdiction and of
Notaries public, and all seals which any person is authorized to use by the constitution or
on act of parliament of the united Kingdom or an act (or) regulation having force in India.
7. The accession to office, names, titles, function and signatures of Gazatted Officers
8. The national flag of every country recognized by the Government of India
9. The division of time, the Geographical division of the world and public festivals facts and
holidays notified in the official Gazaette,
10. The Teritories under the dominion of the Govt. of India
11. The commencements continuations are termination of War between the Govt. of India
and any other country.
12. The names of court officials and all advocates authorized by law to appear or act before
the Court.
13. The rule of the land, road or at sea

 Further, constitutional, political and administrative matters – Court has supposed to have
knowledge of the fact, judge may rely upon his personal Knowledge.
 Law, regulation and general customers – matters of common Knowledge – Court take
Judicial notice of measures of Ordinary terms being matter of common knowledge or
common terms and evidence is not admissible to expound their meaning
 Consultation of books and witnesses – Court take Judicial notice in the Ordinary course
of its nature.

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NOTICE IN SUBSEQUENT EVENTS
The power of Court to take notice of subsequent event is a well settled power but there are
three riders
1. The subsequent event should be brought promptly to the notice of the court.
2. it should be brought to the notice of the court consistently with the rules of procedure
enabling the court to take note of such events and affording the opposite partly an
opportunity of the meeting or explaining such events.
3. The subsequent event must have a material bearing all the right to relief of any party.

IMPEACHING THE CREDIT OF WITNESS - SECTION 155

The credit of the witness may be impeached in the following ways by the adverse party
(or) with the consent of the Court by the party who calls him
1. By the evidence of the persons who testify that they from their knowledge of the witness
believe him to be unworthy of credit.
2. By proof that the witness has been bribed or has accepted the offers of bribe, or has
received any other corruptive inducement to given his evidence.
3. By proof by former statement inconsistent with any part of his evidence which is liable to
be contradicted.
4. Immoral character of proxicutrix for rape.

Illustration
A sues B for the price of goods sold and delivered to B, c Say that A delivered the goods
to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered
the goods to B. The evidence is admissible.
The credit of witness is generally impeached by the opposite party, but when the witness
has become the slice, his credit may be impeached with the permission of court, by the very
party who called him.
Impeaching credit means exposing his real character to the Court. So that court may not
trust him.
When a man is being prosecuted for rape or an attempt to ravish, it may be shown that
prosecutrix is generally a woman of immoral character.
In a English case, the court of appeal laid down that a complainant in a case of rape may
be cross examined as to her sexual experience with other man. Provided the question is relevant.

SETION 34 – ENTRIES IN THE BOOK OF ACCOUNT

Entries in books of accounts including those maintained in an electronic form, regularly

kept in the course of business, are relevant whenever they refer to a matter into which the Court
has to inquire, but such statements shall not alone be sufficient evidence to charge any person
with liability.

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Illustration
A sues B for Rs. 1,000, and shows entries in his account-books showing B to be indebted
to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to
prove the debt - Chandradhan Goswami Vs. Gauhati Bank ltd.
Supreme Court held the original entries alone under Section 34 of Evidence Act would not
sufficient to change any person with liability. Therefore where the entries are not admitted, it is
the duty of the bank if it relies on such entry to change any person with liability to produce
evidence in support of the entries to show that the money was advanced as indicated there in
thereafter entries would be of use a as corroborates evidence.
1. Entries in different ink
2. They were written in between two regular lines in a cramped style
3. Supreme Court refused to rely upon the entires

Case Law.
B.Siddhalingapa Vs. M.C. Mobe
Book – ordinarily means a collection of sheets of paper or other material blank, written or
printed sustained or bound together. So as to form a material whole loose sheets or scraps of
paper cannot be termed as book for they can easily be detached and replaced.

COPIES OR EXTRACTS FROM BOOKS

Original account book have to produced for the inspection of the court copies or extracts
one in the nature of secondary evidence and before they can received in evidence, proper
foundation should be laid U/s.65.
Entries in a bankers passbook are relevan for the same reason – Case Law Chandradhan
Goswami Vs. Gauhati Bank
Probative value
1. Speaks about the relevancy of entires as evidence
2. speaks in a negative way of its eventiary value for chaning person with a liability.

BANKERS BOOK OF EVIDENCE ACT. 1891.

Entries in the Bank’s book about a loan have bee held to be not sufficient to prove the
fact of loan. Some different independent evidence of the fact of loan always been considered
necessary.
Bankers books includes ledgers, day, book, cash book, account book and other records
used in the ordinary business of the bank whether those records are in written form or any other
form mechanical or electronic data retrieval mechanism

ADMISSION – SECTION 17
An admission is a statement, 1[oral or documentary or contained in electronic form], which
suggests any inference as to any fact in issue or relevant fact, and which is made by any of the
persons, and under the circumstances,
 A person accused of murder had sustained injuries. He explained to the doctor the cause
of his injuries. This explanation held to be admission.
 If admission falls short of the totality of the requisite evidence needed for legal proof of a
fact in issue, such an admission would be only a truncated admission.

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  When a person applied for exemption under an Urban ceiling Act it does not amount to
admission

Reasons for admissibility of admissions.

1. Admissions as waiver of proof
2. Admissions as statement against interest.
3. Admission as Evidence of Contradictory statements
4. Admissions as Evidence of Truth

Forms of admission and to whom an admission may be made

FORMAL OR JUDICIAL ADMISSIONS
Statements made by a person in his pleadings or in his evidence in some other cases held to
be admissions.

Case Biswanath Prasad Vs. Dwarka Prasad Admissions are substantive evidence by
themselves though not conclusive proof of the matters admitted.

INFORMAL OR CASUAL ADMISSIONS

 Such admissions may occur in the ordinary course of life, or in the course of business or
in casual or informal conversation. The admission may be in writing or oral.
 Written admissions may occur in the course of correspondence, in letters, business diaries
or account books or pass books or after records. Statement occurring in a catalogue of
sale amounts to Admission
Case Law Jagadish parshad Vs. Saravan Kumar

ADMISSION AND HEARSAY

A Written admission can be proved by a witness who has the writing with him. An oral
admission can be proved either by the party to whom it was made or by someone who heard it
being made.
The rule as to the production of the best evidence is not at all infringed. The theory of
hearsay rule is that an extra – Judicial assertion is excluded unless there has been a sufficient
opportunity to test the grounds of assertion and credit witness by cross examination by the party
against whom it as offered.

ADMISSION BY CONDUCT.

Active or passive conduct may in circumstance become evidence of an admission. Actions of

a person often speak louder than his words.

Illustration
A woman registered the birth of the child but did not enter the name of father, his rank or
profession. The court sait that must mean either that she did not know who the father was and
there was unable to give those particulars or else that she was admitting that child was
illegitimate. eg. - For active or passive conduct is an admission.

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 The silence will amount to admission only if it is natural to expect a denial or reply –

In bassela Vs. Stern - In an action for breach of promise of marriage, it was proved that
plaintiff said to defendant you always promised to marry me, and you does not keep your words.
The defendant did not deny the allegations but offered her huge money. His silence as to be
marriage of promise was held to be an admission.

SECTION 18 - PERSONS WHOSE ADMISSION ARE RELEVANT

1. Parties to the suit
2. Agents of parties
3. Persons occupying representative character
4. Statement of third parties – include also
(a) persons having pecuniary or proprietary interest
(b) persons from whom the parties derived their interest
(c) person whose position is in issue or is relevant
(d) persons referred to
Statement made relevant as dying declaration
Admission may be proved by or on behalf of the person making it when it is of such a
nature that if the person making it were dead it would be relevant as between their person

Oral Admission as to contents of document

Oral declaration as to a document shall be relevant for the purpose of proving that the
document itself is not genuine.
When a person makes an admission “ without prejudice i.e to say upon the condition that
the evidence of it shall not be given, it cannot be proved against him
Admission made to the lawyer which can be compelled to disclose U/s.126 is not
protected even if it is made upon the condition that it shall not be used

EFFECT OF ADMISSION
An Admission are not conclusive proof of the matters but they may operate as estoppels
Section 58 says facts admitted need not be proved – what are known as Judicial admissions –
Definitely be stronger evidence then evidentiary admission.

“ A candidates declaration in the nomination form to be an admission against him. When

admission operates as Estoppel the party admitting the fact will not be allowed to go against the
facts admitted.

SECTION – 26
Confession by accused while in custody of police not be proved against him.
No confession made by any person whilst he is in custody of a police officer, unless it is
made in the immediate presence of a magistrate shall be proved as against such person0

POLICE CUSTODY MEANS - Police control even if it be exercised in home, in an open

place or in the course of a journey and not necessarily in the walls of prison. All circumstances in
which accused remains in the custody of police.

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 Policy custody not necessarily connotes immediate presence of the police officers so as
the accused persons are aware that the place where they are detained is really accessible to
police.

Case Laws:
1. Mat Bhagen Vs. State of Pepsu
2. Shibhavasappa Vs. State of Mysore.

Thus Women arrested for murder offering boy was left in the custody of villagers while
Chokider who arrested left for police station and she confessed in his absence – valid confession
-Emperor Vs. Jagia

Accused being carried on a tonga, was left alone by police man in the custody of tonga
driver, he told his criminally to tonga driver where accused was taken to a doctor for treatment
the policemen standing outside the door, the confession to the village Pradhan accompanying the
police officer after the accused was identified by the person who was last seen with the deceased
– confessions were held not relevant they are irrelevant as held by supreme court - Case Emperor
Vs. Mallan Gounda.

PRESENCE OF MAGISTRATE

Exception to general rule

If the accused confesses while in police custody but in the immediate presence of a
Magistrate the confession will be valid. The presence of Magistrate, rules out the possibility
of torture thereby making the confession free. Voluntary and reliable. Immediate presence of
Magistrate means his presence in the same room where the confession in being recorded.
A confession made while the accused is in judicial custody or lock up will be relevant
even if the accused is being guarded by the Police.

RETRACTED CONFESSION
 When a person having once recorded a confession which is relevant goes back down it
saying either that he never confessed or that he wrongly confessed is called retracted
confession.
 It should not weaker the value of the confession if it is otherwise relevant and worker of
trust. Many prisoners write out confessions and then deny them or dispute their
admissibility. - Case. R Vs Muray.
 Retracted confession may form the basis of a conviction if it receives some general
corroboration from after independent evidence - Shri shail Nages pare Vs. State of
Maharastra
 Confession was retracted one it could be acted upon only it substantially corroborated by
independent circumstances. But not necessary to corroborate in each material particular.
It is sufficient incidents mentioned in confession.

DISTRINCTION BETWEEN ADMISSION AND CONFESSION

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 In both confession and admission there is an acknowledgement of the existence of a fact in
issue in the case in which may in circumstances be accepted by the courts as proof of the truth
and accordingly acted upon. Though there is a difference between these

1. Provision of admission relating to a confession occur under the heading admission. The
word Admission is more comprehensive and it includes confession also.
2. Confession is only a species of Admission. Thus every confession is an admission but the
term confession does not includes all kinds of admission.
3. Definition of Admission given in Section 17 equally apply to confession because
confession nowhere independently defined.
4. Pakala Narayan Swami Vs. The king Emperor – Court held confession must go further
and admit the guilt in terms or substantially the fact from which guilt follows – not
merely knowledge a fact suggesting an inference as to a fact in issue or a relevant fact.
5. A Confession is the admission of guilt in reference to a crime there invariable runs
against interest of accused. But admission refers to every statement. Whether it runs in
favour or against the party making it.
6. Conditions of relevancy are different. Admission made to any person whatsoever is
relevant. Whether he be a police man or person in authority or whether it was the result of
inducement or a compromise. But in case of confession the steadily adheres the principal
that confession must be three and voluntary.
7. An admission made under the promise of secrecy is not relevant, but by crime of
provision of Section 29 Confession is provable even if it was obtained under a promise of
secrecy.
8. Confession of accused person is relevant against all his co accused as per section 30 who
are being tried with him for the same offence. In case of Admission statement of Co
plaintiff or those of a co – defendant are no evidence against the other.
9. Confession always proceeds from a person has committed an offence or is accused of a
crime. But as per Section 18, 19, 20 the statements of certain persons who was not parties
to the case, as admission against the parties.
10. Effect of admission is that it does not constitute a conclusive proof of the facts admitted
through it operates as estoppels against the party making the admission. But the value of
confession there is no provision in the evidence Act but courts have always regarded
confession as a satisfactory proof of the guilt of the accused.

ESTOPPEL : SECTION 115

When one person has by his declaration act or omission intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor his
representative shall be allowed in any suit or proceedings between himself and such person or his
representative to deny the truth of that things.

Illustration
A intentionally and falsely leads B to believe that certain land belongs to A, and there by
induces B to buy and pay for it. The land afterwards becomes the property of A and A seeks to
set-aside the sale on the ground that at the time of sale, A had no title. He must allowed to prove
his want of title.

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  Estoppel precludes a person from denying the truth of the statement previously made by
him. It does not create a cause of action. It can be used as a shield but not as a sword.
 Estoppel can be described to a certain extent as a rule which is capable of creating or
defeating rights.

REQUIREMENTS OF ESTOPPEL
1. there should be a Representation that a certain thing is true, and
2. The person to whom such a representation is made should have acted on the belief of it
REPRESENTATION
May arise from a declaration, act or omission. Statements written or oral conduct active
or passive may amount to representation in a particular circumstances of the case.
Representation may also arise from omission to do an act which one’s duty required to do.
Estoppel arise when the failure to perform ones duty has misled another.

Selection through Examination

A Candidate who had applied for the post and appeared at the interview without protest
could not be allowed to challenge that the eligibility criteria were wrongly framed - G.N. Nayak
Vs. Goa university.

Estoppel against educational Institutions.

 Where a university had issued a mark sheet showing on account of sale miscalculations
higher marks, on the basis of which candidates were admitted to higher course, the
university was not permitted after wards to say that mark sheet was wrong - Case Naba
kishore Vs. Utkal University
 Once a candidate has been admitted to an examination his candidate cannot after wards
be cancelled even if his form carries certain infirmities - Case Sri Krishna Vs. Kurushetra
University.
 Where a wrong mark sheet was supplied to be candidate showing him as passed, and the
student had no offer means of knowing the truth of the matter, the university was stopped
when it tried to question the mark sheet after gap of 5 years -Case Basnta kumar mohanty
Vs. Utkal University.
 Representation should be of facts not of law or opinion Etc.
 An Estoppel can also arise from waiver but not from an expression not opinion nor from
invitation for tenders.

RELIANCE AND ALTERATION OF POSITION

Second condition is that the plaintiff altered his position on the basis of representation
and he would suffer loss if the represent is allowed to resile from his statement.
Where a government license granted to a person to establish Saw Mill, he spent huge
sums acting on the grant, subsequently changed the policy refusing to grant any further license,
Government was bound to grant particular license, though the policy may be revised for the
future - Jaygit Sing Vs. State of Assam.

HOSTILE WITNESS – SECTION 154

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  Where a witness makes statements against the interest of the party who has called him, he is
known as Hostile witness. It is necessary that he should be cross examined by the very party
who has called him so as to demolish his stand. This can be done only with permission of
Court. As per Section 154 the court may in its discretion permit the party who has called a
witness to put him such question as could have been asked in cross examination.
 Parties arranged as defendants in a suit, having taken contradictory stands on a relevant and
material issue, shall be adversary to each other and entitled to exercise their rights of cross
examination against each other - Concept of Hostle witness
Case Law : Sat Paul Vs. Delhi Administration

An Officer was charge with taking bride. Trap was laid by Inspector of Anti Corruption
department. The office of accused was raided immediately asked the money was supposed to
have been passed to him. The evidence of witness who participated in the trap also that of the
inspector was rejected because they were interested in the success of the trap. Two other witness
who were supposed to be independent made contradictory statements and prosecution itself had
cross examined them in the permission of court held a hostile witness is described as one who is
not desirous of telling the truth at the instance of the party calling him and an unfavourable
witness in one called by a party to prove a particular fact, who fails to prove such fact proves a
opposite fact. It is necessary that court had granted permission to a party to cross examination his
own witness only when he became adverse or hostile. The discretion conferred Under Section
154 is unqualified and untrammeled and is a part from any question of hostility.
 The testimony of hostile witness requires closure scrutiny, because he is contradicting
himself and that portion of his statement which is consistent with the prosecution or
defense may be accepted - State of UP Vs. Ramesh Pal Mishra
 The fact of an independent witness having Hostile was held to be not in itself a ground
for acquital - Bhola Ram Vs. Khushwaha Vs. State of Madhya Pradesh.
 No person can be declared Hostile witness when he has not been produced out of the fear
that he might be disfavor the party who has to produce him - Ram Ratan Vs. Bittan Kaur
 Even where the witness appears he cannot be recorded as Hostile only because he give
inconsistent or contradictory answers.
 The prosecution witness was not concurring in the case with the suggestion made by a
public prosecutor on a point of a post event detail. The Court said that it was not
sufficient made by a public prosecutor on a point of a post event detail. The Court said
that it was not sufficient for the public prosecutor to proclaim that the witness had
adopted a hostile posture - Gura Singh Vs. State of Rajasthan,

COURT QUESTION – SECTION 165

Judges Power to Put question or order production

 For the purpose of Obtaining proof of relevant facts, the Judge has been given power to
ask any question to a witness or to a party. Such Question may be asked at any time and
may take any form and the question itself may relate to a relevant or irrelevant fact. The
Court may order the production of any document for thing.
 In India, in an enormous mass of cases, it is absolutely necessary that the Judge should
not only hear about is put before him by others, but that he should as certain by his own
inquiries how facts actually stand.

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  The Court may question the accused as to what he told to the police people although in
Section-162 of Cr.P.C. Prevents parties from questioning the accused on that point. Judge
may look at the contents of the relevant portion of the police diary although not required
by either party and may question a witness on that basis.
 The Judge shall not ask a question which would have been improper for any other person
to ask order Section 145 & 149. The Judge shall also not waive the primary evidence of
the document.
 Every criminal trial as a Voyage of discovery in which truth is the quest. It is duty of
presiding officer to explore every avenue open to him in order to discover the truth and to
advance the cause of action – for this purpose, the court / Judge is specially invested by
Section 165 with the right to put questions to witness - Sessions Judge Nellor Vs.
Ramana Reddy

SECTION 165
 Confers was stand unrestricted powers on the trial court to put any question it pleases in
any form, at any time of any witness or of the parties, about any fact relevant or irrelevant
in order to discover any relevant facts.
 Any question put by the Judge must be so as not to frighten coerce, confuse or to
intimidate the witness - James Vs. National Coal Board.
 Judges part in all this to hearken to the evidence only himself asking questions of witness
when it is necessary to clean up any point that has been overlooked or cast abscure. The
answers given by the accused in reply to questions by the Judge can be subjected to Cross
examination only with the permission of the Court.

PROMISSORY ETOPPEL
Whenever a person holds out a promise of a favour or concession to other and latter
changes his position by relying upon his words, he still not be permitted after wards to say that
his promise was without consideration - Central London property trust Ltd Vs. High Tree house
Ltd

APPLICABILITY AGAINST STATE

 There was a news in the paper that U.P. State would grant exemption from sales tax for 3
years to New industrial units petition wanted a set Vanaspati plant. He applied to Director
of Industries and chief Secretary and both confirmed the availability of exemption.
Petitioner proceeded with his plans, but state Govt. Abrogated its policy of exemption –
petition applied for an order that state government should be estopped from going back
upon the declared exemption – supreme Court allowed the petition and held that the
Government. was bound by its declared intention – Motilal Padampat mills Vs. State of
U.P.
 It may be called in various Judgment and text books as promissory estoppels, it has
been described as equitable estoppels, quasi estoppels, new estoppels.
 The promissory estoppal not really based upon the principal of estoppels. It need not
necessary be confined to the limitation of estoppels in the strict sense of the words.
Promissory stopped often given rise to a cause of action - Municipal corporation of
Bombay Vs. Secretary of State.

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Extent of relief against Govt. under Promissory Estoppel
1. The plea of promissory estoppels is not available against the exercise of the legislative
functions of the state
2. Doctrine cannot be invoked for preventing the Govt. from discharging its functions under
the law or to act contrary to law.
3. When officer of Govt. Act outside the scope of his authority plea of promissory estoppel
not available. The Doctrine of Ultra Vires shall came into operation and Govt. Cannot be
held bound by the authorized acts of its officers.
4. When officer acts within the authority under a scheme and enter in agreement and makes
representation and person acting on representation put himself in a disadvantageous
position, the court is entitled to require the office to act according to the scheme and
agreement or presentation.
5. The officer would be justified in changing the terms of the agreement to prejudice the
other party on special circumstances such as difficult foreign exchange position or other
matters which have a bearing on general interest of the state.
6. Certain lands were acquired and converted from agricultural use to industrial use for the
allotment of allotment to a company for industrial expansion.
7. A Contractor was promised to renewal of a forest license. He has paid the requisites and
incurred expenditure on improvement of site. There was some delay in granting formal
renewal. ultimately the renewal was refused because of shit of policy. The Madras he did
not permit the Govt. to go back upon its promise - A.K. Thangadurai Vs. D.E.O.
Madurai

STATEMENT OF CONTRACT CLAIMS.

Where in a works contract the contractor accepted the final bills without raising any
objections it was held that the bills became binding on him 2 years later such acceptance, the
contractor raised claim for additional payment and damages. Court held claim being barred by
Estoppel.
The Cancellation of an illegal bid cannot be stopped.

DUMB WITNESS - SECTION 119

A Witness who is unable to speak may give evidence in any other manner in which he
can make it intelligible as by writing or by signs, but such writing must be written and the signs
made in open Court. Evidence so given shall be deemed to be oral evidence.

COMPETANT WITNESS – SECTION 120

In Civil proceedings parties to the suit are competent witnesses plaintiff and defendant
can give evidence against each other.

HUSBAND AND WIFE.

In civil proceedings the husband or wife of any party to the suit is a competent witness.
Similarly in a criminal proceedings against any person the husband or wife of such person shall
be competent witness.

JUDGES AND MAGISTRATES – SECTION 121

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 A Judge or magistrate is a competent witness. A Judge can be a witness to relevant facts.
If a Judge is personally acquainted with any material or particular fact he may be sworn as
witness in the case.
He can testify to it even if it happened before him when he was presiding as Judge or
Magistrate.
Even Judges are competent witness though, they may not be compellable to testify so to
matters in which they have been judicially engaged but their evidence has been received upon
matters which did not involve the exercise of Judicial discretions or power called Judicial
Privilege.

Judicial Privilege Admits Following Exceptions

1. A Judge can be questioned even also Judicial matters with the order of the court to which
he is subordinate.
2. He can be questioned as to matters which concerned kin his presence while he was acting
in his Judicial Capacity.
3. He can waive his privilege and voluntarily often to explain his conduct as such Judge or
Magistrate.

Relevancy of Judgments – SECTION 40

 Previous Judgments relevant to bar a second suit or trial
 A Judgment which has the effect of Res Judicata is relevant in every case in which it has
the effect.
 Section 11 of C.P.C. is intended to prevent multiplicity of suits. The Principle is that
where a cause of action has been agitated before a court of law between certain parties an
the case has same issue (or) cause of action and between the same parties. Earlier
Judgment will be relevant because it will have the effect of preventing the court form
taking cognizance of the case.
 The Principal of Estoppel or Res Judicata do not apply when should contravene some
statutory direction or prohibition.
SECTION – 41
A Final Judgment / order or decree of a competent court in exercise of probate,
Matrimonial admiralty or insolvency Jurisdiction which confers upon or takes away from any
person any right, any legal character, on which declares any person to be entitled to any such
character or to be entitled to any specific thing not against any specified persons but absolutely is
relevant.
Such Decree order or Judgment is conclusive proof.
When the existence of any such character or title of any such person to any such thing is
relevant is conclusive proof .

Judgments are of
1. Judgment in rem
2. Judgement in persona

Judgment in a rem is a kind of declaration about the status of a person. Example that he is
an insolvent and is effective will be relevant in every case or proceedings in which the
insolvency of but person, against everybody whether he was a party to that proceedings or not.

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 A Judgment in person on the other party means a Judgment between the parties. Example
in tort or contract action such Judgments bind only the parties and their representatives in interest
there are not relevant in any subsequent case or proceedings. Judgment of declaratory nature.
Though in personam are also relevant to other proceedings on the subject matter of declaration.
A Judgment of a civil Court under specific Relief Act 1963 to the effect that must claiming
exemption from income tax had become a charitable must after order of rectification was held to
be relevant against income tax. Department though it was not a party to the proceedings.

Judgment in Rem
Dealing with status / legal character of a person can be pronounced only by the court
exercising the following
1. Probate Jurisdiction
2. Matrimonial Jurisdiction
3. Admiralty Jurisdiction
4. Insolvency Jurisdiction

Evidentiary Value of Judgment

The existence of a Judgment over a matter which is again in question is a satisfactory
piece of evidence

Value of Judgments can be attacked on three Grounds

1. The Judgment was delivered by a court of incompetent Jurisdiction
2. It was obtained by Collusive
3. It was obtained by Fraud.
such Judgment does not have effect of Res Judicata.

The Karnataka High Court allowed an exparte decree for dissolution of marriage to be
challenged even when the husband who obtained the decree was dead -Itavya Vs. Shiv Appa.

EVIDENCE OF SIMILAR FACTS – SECTION -14

 A fact is said to be similar to another when it is similar to a fact in issue.

 Example. If a person is sued for selling of bear of bad quality, s similar fact will be the
sale of bad bear by the defendant to that person - Holoombe Vs. Hewson
 If a person is prosecuted for theft a similar fact will be thefts committed by him another
occasion.
 Generally to exclude the evidence of similar facts on which the cause is based and the
fact of which evidence is offered- Director of Public prosecution Vs. Harris

Execution of similar fact evidence.

 Whether the evidence of similar fact should be allowed, in order to prove that the accused
in guilty of theft whether the evidence of past or subsequent theft committed by him
allowed.- Makin Vs. A Honey general of …south wales
 Every Case has to tried on the basis of its own facts and not the facts and decisions of
other case. It has been held that, evidence of similar facts has rational probative value
otherwise than as showing general bad (or sold) character, it is admissible.

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POSITION UNDER INDIAN EVIDENCE ACT
 There is nothing in the act, that evidence of similar facts cannot be given or that it can be
given
 Queen Empire Vs. Abdulah - In effect, prohibits the employment or any kind of
evidence not specifically authorized, the general rule under the Act is essence would be
that the evidence of similar fact is not specifically authorized. General Rule is that
evidence of similar fact is not relevant.
 In noor Mahammed Vs. the King the accused tried by a Jury in British Guiana on a
charge of murdering his de-facto wife by Pottasium Syaride poisoning and convicted
after evidence has been admitted that some 2 years and 4 months previously his wife had
died in the same way.

Exceptions To Exclusion Of Similar Evidence

 Law cannot afforded to reject such evidence in all cases - Rex Vs. Ball.
 The accused for tried for incest with his sister. Evidence showed that the parties has
occupied the same room and the same bed at a hotel.
 That the parties had in the past cohabited together and that a child had born from their
union

CONFESSIONS - SECTION 17
 Confession is a statement made by a person charged with a crime suggesting an inference
as to any fact in issue or as to relevant facts. The inference that the statement should
suggest that he is guilty of crime.
 A Confession is an admission made at any time by a person charged with a crime stating
or suggesting the inference that he committed that crime.
 A Confession must either admit in terms the offence, or at any rate substantially all the
facts which constitute the offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact is not itself a confession.
 Confession would be that a statement may not amount to a confession may still be
relevant as an admission - Veera Ibrahim Vs. State of Maharastra
 Person being prosecuted under custom Act hold the customs officer that he did not know
that the goods loaded in his truck were contraband nor they were loaded with his in his
instructions. Court held his statement was not a confession. But amounts to admission.
Only voluntary and direct acknowledgement of guilt is a confession. but a confession fall
short of actual admission of guilt, it may not used as evidence against person who made
it, as an admission U/s.21 – Statement recorded by the Magistrate, the accused did not
admit his guilt in terms and merely went on stating the fact or assault on the deceased by
mistake supreme court held such statement would not be used against as accused as a
confession - State of Haryana Vs. Rajendra Singh
 Whether a statement recorded by Magistrate U/s.164 Cr.P.C. is confession or not – by
dissecting the statement into difference sentences and then to pick out some as not
inculpative. The statement read as a whole on then only the court should decide whether
it contains admission of inculpatory involvement in the offence - Lakshman Shah Vs.
State of West Bengal

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Confession carrying in all inculpatory and exculpatory statements

The definition of confession is that is must either admit the guilt in terms or admit
substantially all the facts which constitute the offence

Palvinder Kaur Vs. State of Punjab.

Palvinder was on trial for the murder of her husband along with another who all the time
remained absconding. The Husband’s body was recovered from a well after it had already
suffered about 2 months decomposition. Post Mortem could not reveal whether death was due to
poisoning or what. Accused in her statement to court said that her husband a hobbyist
Photographer, used to keep hardy photo developing material which is quick poison, on that
occasion he was ill and she brought him some medicine, the husband while going for the
medicine by mistake swallowed the develops and died. The phial of medicine happened to be
kept nearly the liquid developed and died and she get afraid and with the help of absconding
accused packed the body in a truck and disposed off into the well.
This statement consists of partly guilty and partly innocent remarks partly inculpatory in the
sense that it confessed to something wrong and partly exculpatory that it accepted it would
totally absolve her of any guilty. The lower court shorted out the exculpatory part and acting in
the inculpatory part announced her to be guilty of the murder of her husband by poising him. But
supreme Court thus accepted the inculpatory part of the statement and rejected the exculpatory
part.

The rule laid down in the above case was followed in a case by name Pakala Narayanaswami
Vs Emperor. It is held that a Mixed up statement which even though contains some confessional
statement will still lead to acquittal – is no confession.

Similarly in Jaswant singh Vs. State of Rajasthan accused said that he was in the room when
his wife and children and then committed suicide, Court could not accept the part of the
statement by which he confessed to be there and reject the rest.

Under English Law

Confession not rejected only because of exculpatory statement

Principle of English law that : The whole statement must be left to the jury who may
attach different weight to different part of it. The same rule applied to confession .
Thus the confessional statement should not be rejected merely because it also carries with
it exculpatory statement.

Forms of confession.
Confession may occur in any form. To the court it is Judicial confession. Confession may
be outside the court to anybody called Extra Judicial Confession. It may conversation to oneself,
which may be produced as evidence of overheard by others - Shahoo Vs State of U.P.

Value of Extra Judicial Confession

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  Always held that the prisoners confession outside the court is only admissible if it is
voluntary. Extra-Judicial confession is very weak hype of evidence and therefore refused
to rely on the same. Extra Judicial confession should always be corroborated.
 Whether confession is voluntary is essential question of fact as held by Commissioner of
customs excise Vs. Hartz and Power & Shanker Vs. State of TN.
 Extra – Judicial confession supported by circumstantial evidence acted upon – Lalji
Moha Vs. State of Gujarat Vinayak shivarji rao pol. Vs State of Maharastra.
 Confession of military Sepoy to his superior as to how he killed his wife and disposed off
the dismembered parts of the body substantiated by recoveries held to be capable of
supporting conviction for murder.
 An Extra-Judicial confession is in very nature of things a weak piece of evidence. There
should be no difficulty in rejecting it. If it lacks in probability - Jagta Vs. State of
Haryana.
 Extra Judicial confession should treated with great care because there is no satisfactory,
psychological techniques to distinguish between genuine and false confession.

RES IPSA LO QUITUR – SECTION 106 - APPLICABLE.

“ Things that itself speaks”

Principle explained in Scott Vs. Condon and Kattain Docks Company. Customs officer in
the course of his routine duty visited the defendant’s premises when some bags of sugar being in
a cane at that time fell upon him. The fact that the crane was properly managed was specially
with the knowledge of the defendant, because an accident of this kind would not occur if the
thing was properly managed and therefore the burden lay upon him that there was no negligence
on his path.
When a pedestrian was electrocuted from a live wire which was hanging on the road from
an electric post, the court presumed it must have been due to negligence management. The
burden was on electricity board to how proper manager.

PRESUMPTION AS TO DEATH - SECTION – 107

Presumption of proving death of person known to have been alive within thirty years.—
When the question is whether a man is alive or dead, and it is shown that he was alive within
thirty years, the burden of proving that he is dead is on the person who affirms it.

R vs. Lumley
A prisoner woman was prosecuted for bigamy. She married a man in 1836 left him after
seven years in 1843 and married another in 1847. Nothing was heard of her first husband. After
she left him, the prosecution gave no evidence of age, or of the fact that he was still alive. But
Judge felt that because he was alive just 4 years before the marriage, here was a presumption that
he was still alive and consequently the prisoner was convicted.

SECTION – 108 - Burden of proving that a person is alive who has not been heard of for seven
years.

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  When the question is whether a man is alive or dead, and it is proved that he has not been
heard of for seven years by those who would naturally have heard of him if he had been
alive, the burden of proving that he is alive is shifted to the person who affirms it.

No presumption as to time of death.

If the time of death is a vital fact during the period of seven years, then those who alleged
that death should be taken to have occurred at a particular time will have to prove that fact.

SECTION 112 - Birth during marriage, conclusive proof of legitimacy

 Any person was born during the continuance of a valid marriage between his mother and
any man, or within two hundred and eighty days after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had no access to each other at any
time when he could have been begotten.
 A Child born to a married parents is conclusive proof of legitimacy of child. That
presumption arises when the marriage was dissolved and the child was born within 280
days after dissolution, them then being un married presumption of marriage is a
presumption of law
Condition
 Child born during continuance of valid marriage
 if marriage dissolved within 280 days after dissolution
 the parties to the marriage should have had access to each other at any time when the
child have been begotten

Access : means actual sexual intercourse between the spouses.

Where in Karapaya Servai Vs. Mayandi access another only existence of opportunity for
marital intercourse presumption of legitimacy Largely depends upon the fact that parties to a
marriage have necessary access to each other.

Chilkuri Venteshvaralu Vs. Venkata Narayana

Presumption of legitimacy is highly favored by law, it is necessary that proof of non-
access must be clean and satisfactory.

In this case husband tried to show that he had provided separate residence to his second
wife, and thereafter never visited her. The wife alleged visits by her husband and husband
being not able to prove his allegation- a child born to second wife was presumed to be a
legitimate child.

Garfath Vs. Garfath.

Husband and wife separated in October wife delivered twins in August about 280 days
thereafter the separation. She alleged that the husband visited her on Jan 7 and 14 and that the
delivery was premature. The husband was able to prove that he did not visit her on 14th but
was not able to prove anything about the alleged visit on 7th neither was the wife able to offer
any proof of this visit – Court held that the presumption of legitimacy prevailed.

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Narendra Nath Puhari Vs. Ram Govind Puhari

Child was born within 280 days of the husband’s death. Evidence was offered that about the
time the child was conceived the husband was suffering from carbuncle and died of the illness
within 14 days court held child is legitimate.

Vascetomy operation and presumption of legitimacy

In case by name Kerala High Court Case. Chandra mathi Vs. Fazhetti Balan
Married women became pregnant even after her husband had under gone vasecetony
operation. Court held vasectomy was not sufficient by itself to overthrow the presumption of
legitimacy. No proof was offered to show whether the operation was successful.

Blood Group Test

Court did not ordinarily order anybody to submit himself for blood test. No one can be
compelled to give sample of blood for analysis.
DNA Test – for parental responsibility

In an application for grant of maintenance to a minor child, father denied his Parentage. He
showed no concern for the minor child. He rather showed a concern which was described by the
court as Crocodilian, that if the child lost his case, he would became bastard, Court directed him
to submit to DNA Test. Court held there was no violation of a person rights in directing him to
take the test particularly when a child’s right to maintenance was invoked.
Any presumption of law as to legitimacy or illegitimacy of any person in any civil
proceedings be rebutted by evidence which shows that it is more probable that person is
legitimate or illegitimate – it shall not necessary to prove that fact beyond reasonable doubt or
order to rebut the presumption - Serio Vs. Serio.

MAY PRESUME – SHALL PRESUME – CONCLUSIVE PROOF

The court regard that fact as proved unless and until it is disproved
There was a failure to perform emergency operations and the surgeon in charge was sued for
causing death by negligent omission and his defence was that there was no consent for the
operation. Court held presumed that consent must have been there because patient was brought
for that purpose burden is on the doctor to show that there was no consent.

Dr. T.T. Thomas Vs. Elisa

Where a doctor gave an injection for determination of pregnancy which resulted in
miscarriage and death of a women, it was held that the doctor would presumed to know the side
effects of the medicine.

PRESUMPTION IN SUICIDE CASES - SECTION – 113 – A

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 Whether the commission of suicide by a woman had been abetted by her husband many
relative of her husband and it is shown that she had committed suicide within the period of 7
years from the date of her marriage and that the husband or relative of her husband had subjected
her to cruelty, the court may be presume having regard to all other circumstances, that suicide
had been abetted by her husband or by such relatives of her husband

SECTION -498 – a IPC

 Dowry deaths have appeared like a waive killings takes place inside the protection of
home. Independent and outside evidence is generally not available. There is no body at
the moment to record the Woman declaration.
 Criminal courts always presumed that the accused is innocent until his guilt is established
beyond reasonable doubt.
 Prosecution has to produce evidence of 3 things for this namely fact of suicide with 7
years of marriage and cruelty on her in her husband home.
 Habit of husband to come home late after home late after drinking and a beating his wife
was held to be a cruelty for the purpose of attacking the presumption - Amannji Singh
Vs. State of Punjab
 Abetment of suicide is presumed to exist it will then be for the husband or his relatives to
prove that the suicide in question was the woman’s personal choice. She was not induced
to do so. There was nothing on the part of husband or relative which would be regarded
as an abetment to the suicide.
 Where wife died by drowning in the family well in the country and of her in law and
there was circumstances showing ill treatment spreading over several years court held
circumstances created the presumption that the ill treatment continued till she was forced
to commit suicide - Balram Prasad Agarwal Vs. State of Bihar
 The wife assaulted by the husband because she answered back his mother. She poured
kerosene on herself. The accused husband went on with his provocative language. It was
held amounted to instigation of suicide.

Section 113(A) R/w 306 and 398(A) of IPC.

Accused husband forced his wife to part with land received by her as Sridhana and for this
purpose he disrupted her postal communications and all his drove her to suicide. Presumption
was raised U/s. 113 –B that the husband’s cruel conduct abetted the suicide - K.P. Rema Rao Vs.
Yadla Srinivas Rao

Presumption as to dowry death operates only in cases in which the prosecution proves that
soon before her death the victim was subjected to cruelty or harassment for dowry demand.

SECTION 114
The Court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public and private
business,
Illustration
A man who is in possession of stolen goods after the theft, is either the thief or had received
stolen good knowingly to be stolen unless he can account for his possession..

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AMBIGUOUS DOCUMENT – SECTION 93 TO 100

When a document is ambiguous i.e. either its language does not show clean sense of the
document or its application of facts creates doubts, how can oral evidence can be allowed to
clarify the language or to removable the defect
 Patent Ambiguity
 Latent ambiguity

Patent Ambiguity
A defect which is apprehend on the fact of the record / document. The document is
apparently defective. Person recording the document with ordinary diligence / intelligence would
at once observe the defeat
 in such case oral evidence is not allowed to remove the defect
 Reason is that document being clearly or apparently defective
 Could have been known to parties and they did not came to remove it then it is too
late to remove it when a dispute has arisen.
SECTION - 93
Exclusion of evidence to explain or amend ambiguous document

SUGGESTED QUESTION
State circumstances under which oral evidence is admissible to clean up ambiguities in
documents – Section 95, 96, 97, 98
When the language used in a document is, on its face, ambiguous or defective, evidence
may not be given of facts which would show its meaning or supply its defects
Illustration
1. A agrees, in writing, to sell a horse to B for “Rs. 1,000 or Rs. 1,500”. Evidence cannot be
given to show which price was to be given.
2. A deed contains blanks. Evidence cannot be given of facts which would show how they
were meant to be filled.

When a document is silent to a particular matter, but not mentions prices of ambiguous
nature – no extrinsic evidence can be given to remove such defects. While no extrinsic evidence
can be given to remove patent defect- the court may fill up blanks or gaps in a document with the
help of other contents of the document. i.e. statement in one part of document can be used to
remove a defect in some other part.

Second type of patent ambiguity

When language of the document is quiet clean, and it also applies to the facts stated, but
an attempt is made to show that it was means to apply to some other fact. Such evidence not
allowed.

SECTION 94 - Exclusive of evidence against application of document to existing facts

When language used in a document is plain in itself and when it applies accurately to
existing facts, evidence may not be given to show that it was not meant to apply to such facts.

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Illustration
A sells to B, by deed, “my estate at Rampur containing 100 bighas”. A has an estate at
Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be
sold was one situated at a different place and of a different size.

LATENT DEFECTS
Means a defect which is not apparent on the fact of the record. The document makes a
plain reading. There is nothing apparently wrong with its language. But when an attempt is made
to apply it to the fact stated in it, it comes out that it does not accurately apply to those facts.

SECTION – 95 - Evidence as to document unmeaning in defence to existing facts.

When language used in a document is plain in itself, but is unmeaning in reference to

existing facts, evidence may be given to show that it was used in a peculiar sense.

Illustration
A sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta, but it appears
that he had a house at Howrah, of which B had been in possession since the execution of the
deed. These facts may be proved to show that the deed related to the house of Howrah.

SECTION 96
 When the language of a document is clean and is intended to apply to only one thing or
one set of facts, but in its application to the existing facts, it is difficult to say to which
particular thing it was intended to apply, evidence can be offered to clarify this matter.
 When the facts are such that the language used might have been meant to apply to any
one, and could not have been meant to apply to more than one, of several persons or
things, evidence may be given of facts which show which of those persons or things it
was intended to apply to.

Illustrations
A agrees to sell to B, for Rs. 1,000, “my white horse”. A has two white horses. Evidence
may be given of facts which show which of them was meant.

SECTION 97
Evidence as to application of language to one of two sets of facts, to neither of which the
whole correctly applies

 When the language used applies partly to one set existing facts, and partly to another set
of existing facts, but the whole of it does not apply correctly to either, evidence may be
given to show to which of the two it was meant to apply.

Illustration
A agrees to sell to B “my land at X in the occupation of Y". A has land at X, but not in
the occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be
given of facts showing which he meant to sell

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SECTION 98- Evidence as to meaning of illegible characters
 Evidence may be given to show the meaning of illegible or not commonly intelligible
characters, of foreign, obsolete, technical, local and provincial expressions, of
abbreviations and of words used in a peculiar sense.

Illustration
A, a sculptor agrees to sell to B, “all my models”. A has both models and modelling
tools. Evidence may be given to show which he meant to sell - Schulthan Nayor Vs. Achulfan
Nayar AIR 1941 Mad587
An Artist agrees to sell all his models. Evidence may be given to show whether he meant
to sell all his models or modeling toots oral evidence is admissible for the purpose of explaining
artistic words and symbols used in a document - Canadian general electric. W. Vs. Fatda Radio
Ltd.

NON EXAMINATION OF A WITNESS :

Prosecution Case Where a material witness is not examined.

Case. State of Karnataka Vs. main Patel

 The case would be to find an answer to the question. Whether the evidence actually
produced is reliable or not and not to the question whether the non examination of
witness creating an adverse presumption would If so facto initiate the whole trial. There
are independent witness whose testimony is reliable and trust worthy to prove the charge
leveled against the accused, the presumption arising from non –examination of other
witness will not make it necessary to throw out prosecution.

 Where dead body was recovered from a well with the help of two laborers of whom only
one was produced at the trial, it was held that non examination of the other did not create
any adverse presumption against the prosecution against it caused no pre-Judice to the
accused.

 No adverse presumption was drawn where the non –production of some material
witnesses was due to the region of tenor prevailing in the area at the time - Sat Paul Vs.
State of Punjab.

Non Examination of doctor who conducted autopsy.

It is the duty of prosecution to prove post Mortem findings in murder case if they are
available. Absence of such evidence is a draw back to the prosecution case.

Estopped by Record.
The Doctrine of Res Judicata is an example of estoppels by record. Every party has a
right of appeal against what he may consider to be wrong decision, it he does not do so or having
done so, loses appeal, he cannot afterwards take up the same issue again and between the same
parties. Not only the parties their privies also such as legal heirs, executors, administrators and
assigns, all become equally bound by the decision of this kind if estoppels is death U/s.10 and 11
of C.P.C. and U/s. 40 -44 of evidence Act. 1872. It is the final decision that has the effect of

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estoppels. A Judgment in personam binds parties and privies. A Judgment in Rem is a
declaration which is effective against the whole world.

PROFESSIONAL COMMUNICATION

Section - 126
No banister, attorney, pleader or Vakkil Shall at any time be permitted, unless with his
client’s express, consent to disclose any communication made to him in the course and for the
purpose of his employment as such Banister, pleader, attorney or Vakkil by or on behalf of his
client or to state the contents or condition of any document with which he has become acquainted
in the course and for the purpose of his profession employment or to disclose any advice given
by him to his client in the course and for the purpose of such employment. Provided nothing in
this section shall protect from disclosure
1. Any such communication made in the furtherance of any illegal purpose.
2. Any fact observed by any Banister, pleader, Vakkil in the course of his employment as
such showing that any crime or fraud has been committed since the commencement of his
employed. It is immaterial whether the attention of sue in banister, pleader, Attorney or
Vakkil was or was not directed to such fact by or on behalf of the client.

Illustration
1. A client says to B, an attorney, I have committed forgery had I wish you to defend me.
As a defence of man known to be guilty is not a criminal purpose this communication is
protected from disclosure.

2. A a client says to B, an attorney, I wish to obtain possession property by use of a forged deed,
on which I request you to sue.
This communication being made in furtherance of criminal purpose is not protected from
disclosure.

3. A being charged with embezzlement, retains B, an a attorney to defend him, in the course of
proceedings, B observes about an entry has been made in “A” account book charging A with the
sum to have been embezzled which entry was not in the book at the commencement of his
employment.
This being a fact observed by B in the course of his employment showing that a fraud has
been committed since the commencement of the proceedings. Held it is not protected from
communication.

PRESUMPTION OF LAW – SECTION 14

 Presumption of law are of two kinds namely
(i) Rebuttable presumption of law
(ii) Irrebuttable presumption of law.
(iii) Conclusive presumption of law.

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 Rebuttable presumption means a presumption which can be overthrown by evidence to
the contrary. But irrebuttable presumption of law is drawn so conclusively that no evidence to
the contrary is allowed.

Conclusive presumption of law

The last part of Section 4 says, when one fact is declared by this to be conclusive proof of
another, the court shall, on proof of the one fact regard to there as proved and shall not allow
evidence to be given for the purpose of disproving it.

Mathura Case – Section 114 –A presumption as to absence of consent in prosecutions for

rape.
It is always been difficult thing to prove a rape and to punish rapist. A rapist always tries
to locate his victim in circumstances of solitude. There are rare chances of availability of direct
evidence. The only material evidence therefore, that remains is the statement of the victim and
her complaint. Court meaning statement of a rape victim on the same footing as the testimony of
accomplice. Such testimony usually requires corroboration.
Where sexual intercourse by the accused is proved and the question is whether it was
without the consent of the woman alleged to have been raped and she states in her evidence
before the court she did not consent, court shall presume that she did not consent.
Whether the intercourse between man and woman was with or without consent and the
woman states in the court that It was against her consent, court presume that there was no
consent. The requirements of presumption are

1. It is a proven fact that there was been intercourse

2. The question is whether it was with consent or without consent.
3. The women states before the Court that she had not consented.

Tukaram Vs. State of Maharastra AIR 1979 SC 185 - Popularly known as Madura Case.

Fact of the case.

Prosecution for rape of two police personnel, Madura was the name of the girl who was
alleged to have been raped. Her parents died when she was still a child. She was brought up by
her brother. Both of them worked as labourers. At Mathura’s place of work she came in contract
with her employer’s sister’s son. They decided for marriage. Her brother lodged a complaint or
report in a police station, that her sister has been kidnapped by her lover and lover’s sister and
husband. All of them were rounded up and brought to police station. The statement of the girl
and her lovers were recorded, the party was told to leave. The head constable also left. Only 2
accused police men remained at the station, when the party was about to cross the gate of police
station, two accused appeared and told Madura to stay and others move out. Madura was taken
inside and party waited for her outside. From this point onwards all that could be known was
from Mathura’s mouth. She stated that one of the policemen took her to a latrine at the back side,
removed her underwear and started looking at her private parts by exposing them to torch light.
He then dragged her to the back Verandah and raped her against her shift resistance. He left and
Turkaram appeared who was till then sitting nearby he folder her private parts. He could not do
anything more because he was too drink. The patience of the party waiting outside exhausted.
They became panicky by noticing the lights being put off and gate closed from inside. They ran

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towards backside raised on alarm. This attracted crowd. Only then Tukaam came out and told
them that the girl already left. He went away. The emerged from behind him and narrated the
story of rape.
The medical examination showed that she had no injury on her person. Her hymenbore
no evidence of first rapture. It had marks of earlier raptures. Her age was put as anything
between 14 and 16 years. An examination of sample of public hair and vagina smearn slides did
not show any traces of semen. The girls clothes and the Payjama of the alleged rapist, however
showed traces of semen. The trial Court acquitted the accused of the charge of rape. The Judge
felt that the probability was that of an affair with consent.
On appeal to High Court no importance was attached to the absence of any traces of
semen on the public hair or vaginal smear. Because the girl had been examined 24 hours after
event. The High Court attached more importance to the presence of semen on the clothes of both
the parties and taking this along with fact that passive submission at a police station cannot
amount to consent, convicted the accused. They appealed against conviction to the Supreme
Court. They were again acquitted Supreme Court points are
1. There being no injury on the person of the girl the alleged affair must have been peaceful
one and the talk of shift resistance must have been a subsequent concoction.
2. She silently walked back to police station with Ganpat when he laid his hand upon her.
She should loudly protested at that time why she was being separated from her party and
should have shaken off the policeman’s hand. Weekly following Ganpat and allowing
him to have his way with her to the extent of satisfying his lust in full makes us feel that
the consent in question was a consent which could be brusted aside as passive
submission.
3. The burden of proof is on the prosecution to prove affirmatively each ingredient of the
offence. It was for them to prove that her consent had been obtained by putting her to feat
of death or of hurt. They had not discharged this burden.
4. As soon as the girl has stated before the Court that she had not consented, a hold burden
of proving her consent would have shifted to the accused person. If they had not been
able to produce evidence of her consent, their conviction would have been sustained.

Case Law : Balwart Singh Vs. State of Punjab.

CHILD WITNESS
That no testimony whatever can be legally received except upon oath and that an
infant though under the age of 7 years, may be sworn in a criminal prosecution, provided
such infant appears, on strict examination by court, to possess a sufficient knowledge of the
nature and consequences of an oath. There is no precise or fixed rule as to the time within
which infants are excluded from giving evidence but their admissibility depends upon the
sense and reason they entertain of the danger and impiety to false hood which is to be
collected from their answers to the question propounded to them by the Court.

Case Law :Mohamde Sugal Vs. The King.

Girl not more than 10 years old was tendered by the crown as life only eye witness at the
trial of the accused for murder. Trial Judge found that she was competent to testify as she
appeared to be intelligent for her age and gave her answers frankly and without hesitation but

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 she was not able to understand nature of the oath. Supreme Court says adequate
corroboration of his testimony must be looked from other evidence.

KINDS OF ESTOPPEL.

1. Estoppel by record
2. Estoppel by death
3. Estoppel by Pais
4. Equitable estoppels
5. Issue Estopel
6. Estoppel by attestation
7. Estoppel by pleadings.

SOLVED PROBLEMS

1. The question is whether A and B were married. The fact is that they were usually received and
treated by their friends as husband and wife. Explain the relevant fact.

Section 32 Clause 8 r/w Section 114

The Court may presume existence of certain facts. State of relevant facts made by
persons and expresses feelings relevant facts made by person and expressed feelings relevant to
matter in question.
An entry in a memorandum book by C, the deceased father of “B” of his daughter’s
marriage with A on a relevant date is a relevant fact - Gokul Chand Vs. Parveen kumari

Relevant evidence means having any tendency to make the existence of any fact. i.e.
consequences to the determination of the action more probable less probable than it would be
without evidence - Federal rule of evidence

Hence in the given problem – they were usually received and treated by friends as husband
and wife – is a relevant fact and which creates presumption that both A and B were married
unless and otherwise disproved.
2. A who is accused of murder alledge the by grave provocation and sudden provocation he was
deprived of the power of self control on whom does the burden of proof lie?

SECTION 106

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 When a person does an act with some intention other than which the character and
circumstances of the act suggest, the burden of proving that intention is upon him

SECTION 105
Burden of proving that case of accused comes within

Exceptions
When a person is accused of any offence the burden of proving the existence of
circumstances bringing the case within the general exceptions in IPC or with any special
exception or proviso curtained in any other part of some code, or in any law defiminy the offence
is uon him and the court shall presume the absence of such circumstances.

In the given problem

A accused of murder, alledges that by grate and sudden provocation, he was deprived of the
power of control. The burden of proof is on “A”

Case Chahudar Vs. State of Gujarat

3. A prosecution witness was asked about whether he had quarreled with the family of the
accused but he denied it. Whether evidence has been adduced to prove the fact of quarrel?

Expression of feelings towards each other before or after the alleged cruelty one relevant as
per Section 14.

4. A is on the trial for murder of C. There is evidence to should that C was murdered by A and B
and that B said A and I murdered C. If the statement admissible?

An Admission is the best evidence only against the party who has made it. Whatever the
party says in evidence against himself. What a party himself admits to be true may be presumed
to be so. As per Section 18 & 17 r/w 58.

Case Law : Darby Vs. Quselary – R Vs. tumer –It is nothing but an admission by passive
conduct -Hence the statement that B that A and I murdered C is admissible.

5. A sues B for money on a bond. The execution of bond is admitted. But B says that the bond is
obtained fraud which A denies. State on whom the burden of proof lies?

Section 102. Burden of proof in a suit lies on that person who would fail if no evidence at all
were given on either. In the given case, the burden of proof is on “B”.

6. “A” tried for the murder of “B” by intentionally shooting him dead. The fact that A an earlier
occasion shot B. State whether is fact can be treated as relevant fact?

Section 7 – Facts which one the occasion, cause or effect of facts in issue are relevant – Section
8

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Case Laws :
1. Chandra Mohan Towani Vs. State of M.P. - The earlier murder would be relevant
2. Nath Singh Vs. Emperor -The earlier murder would be relevant.
Hence the given problem the statement that A on earlier occasions should is relevant fact.

7. A is stabbed to death by B. C is an eye witness to this occurrence C informs this to his friend
D. Decide the admissibility the oral evidence given by C at the time of trial of B for murder.

 An oral admission can be proved either by the party to whom it was made or by someone
who heard it being made
 A person who witness can give evidence of the fact for he has personal knowledge of the
fact.
Hence in the given problem the oral evidence given by the C is admissible subject to
corroboration.

8. A is a accused of murder claims that he was insane and did know the nature of the fact. State
whether the burden of proving insanity is on the accused person (or) on the prosecution?

SECTION – 105
A accused of murder alledges that by reason of unsoundness of mind, he did not know
the nature of Act – The burden of proof is on “A” burden of proving a defence or any of the
exceptions upon the accused. Everybody is presumed to be sane. The contrary has to be proved.
Every such person is also presumed to intend the natural consequence of his conduct.

Case Laws :
1. R Vs. Sheppard, R Vs. Davier
2. In Beatty Vs. Attorney general Northern Ireland.- Plea of insanity may be stated in the
following propositions

 The prosecution must prove beyond and reasonable doubt that the accused had committed
the offence with requisite Mens rea. The burden of proving that always rests on the
prosecution from beginning to the end of the trial.
 Here is rebuttable presumption that the accused may rebut it by placing before the court
all relevant evidence oral, documentary or circumstantial, but the burden of proof upon
him.
 Even if the accused is not able to prove / establish conclusively that he was insane at the
time of he committed the offence, the evidence placed before the court may raise
reasonable doubt in the mind of court as regards one / more of ingredients of the offence
including Mens Rea, and in that case the court would be entitled to acquit the accused.

9. A has proposed to prove by a copy, the contents of document said to be lost. State the method
of proof presumed by law to prove contents of documents ?

SECTION 65 – Secondary evidence may be given of the existence condition or contents of a

document

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 In the given problem the contents of the document said to be lost, that as per section,
where the document is in possession of the party who does not even after notice to produce it or
when the original has been lost or destroyed or when it is not easily movable any kind of
secondary evidence of the contents can be given.
i.e. certified copy is admissible as evidence.
Case Laws :
1. Gopal Krishna Kumar Vs. Puransingh.
Where the original is a document of which below permits certified copies, the secondary
evidence is admissible that of the certified copies but no other secondary evidence may be given.

2. Periyasamy Vs. L. Periyasamy AIR 2004 Mad 75

10. A Question is whether A has been guilty of cruelty towards B his wife. Whether the
expression of that towards each other shortly before (or) after the alleged cruelty were relevant ?

As per Section – 8 the conduct previous of subsequent to the facts in issue is relevant –
i.e. any statement made to him or to his presence and hearing, which affect the conduct is
relevant. The conduct of parties to the proceeding are relevant.
Case Law: Queen Emperor Vs. Abdullah
Here expressing their feeling of each other where fact of issue being cruelty caused by A
Towards B.

Section – 15 Facts bearing on question whether act was incidental or accidental.

When there is question whether an act was accidental or intentional or done with a
particular knowledge or intention the fact that such act formed part of a series of similar
occurrences, in each which the person during the act was concerned- is relevant.

Illustration
A lived in several houses successively, each of which he insured in each of which a fire
occurred and after each of which fire A received the payment from different insurance offices are
relevant. Tending to show that the fires were not accidental.
 To prove system or design or to over throw the defence of accident.
To prove the mental element
Evidence of similar facts can also be offered to prove the negligent state of mind - Halles
Vs.Kerrs.
Damages were claimed from barber for negligence in showing the plaintiff with a dirty
razor and hereby inflecting him with ring warms. Evidence of 2 witnesses who had been shaved
at the defendant’s shop and similarly inflicted was held to be relevant.

To Establish Identity of person

Fact which establish the identity of anything or person whose identity is relevant, are
relevant in so far as they one necessary for that purpose.

Perkins Vs. Jaggerey

Respondent charged with under Vagrancy Act 1824 with having exposed his person at a
place of public resort with intent to insult a female. Evidence is that he had similarly exposed

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himself towards complainant an earlier occasion and at same place. Evidence directed to show
that he had done the same thing at the same place and to the same woman were admissible and
relevant.

Evidence of Modes Operandi

Evidence of a thief’s modus operandi may adduced as similar fact evidence to rebut the
defence of mistake or accident. The accused was charged with stealing bacon from a shop. His
defence was that of mistake. Evidence of similar earlier thefts under the pretence of mistake was
allowed. Court held there was sufficient nexus between the offence charged and the earlier
offence which served to rebut the defence - R Vs. Seaman.

11. The question is whether A and B were married. The fact is that they were usually received
and treated by their friends as husband and wife. Explain is this relevant fact.

Relevant means that any two facts to which it is applied one so related to each other that
according to the common course of events one taken by itself or in connection with other facts
proves or render probable the existence or non existence of the other.
A Strong presumption arises in favour of wed lock. Where the partners have lived
together for a long spell as husband and wife. Hence they were received together and treated as
husband and wife is relevant living together and shown as such held good evidence of marriage
law leads in favour of legitimacy and from up bastardy.

12.Whether A committed a crime. The fact is that “A” absconded after receiving a letter warning
him that enquiry was being made for a criminal trial. Whether the contents of letter are relevant?

Section - 8. Motive, preparation and previous and subsequent conduct.

A Fact is relevant which shows or constitutes a motive or preparation for any fact in issue
or relevant fact. In the given problem, A absconded after receiving the letter warning him that
enquiry was being made for the Criminal and that the contents of the letter i.e. conduct are
relevant.

13. Whether A robbed B. Fact is shortly before robbery “B” Went to a fair with money in his
possession and that he showed it (or)mentioned the fact that he the had money to third parties
persons. Whether the fact is relevant if so how it is relevant?

Section - 7. Facts which are the occasion, cause or effect of facts in issue.
facts which are the occasion, cause or effect, immediate or otherwise of relevant facts or
facts in issue or which are constitute the state of things under which they happened or which
afforded an opportunity for their occurrence or transaction are relevant.

Hence in the given problem the fact that shortly before robbery “B” went to fair with
money in his possession and that he showed it or mentioned that he had to third persons- are
relevant.

14. “A” is charged with shooting at B with an intention to kill him. Whether A’s intent may be
proved by the fact of A having previously shot at “B” ?

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 Section 14 facts showing existence of state of mind or of body or bodily feelings. Facts
showing state of mind, such as intention, knowledge, good faith, negligence, rashness, ill will or
good will towards any particular person or showing existence of any state of body or bodily
feeling one Relevant – wwhere such facts over in issues.
In the given problem – A is charged with shooting at B with intent to kill him. IN order to
show’s intent, the fact of A having previously shot a “B” – may proved if so are relevant.

15. A Sues B for the price of goods sold and delivered to B. C says that A delivered goods to B.
Evidence is offered to show that on a previous occasion, he said he had not delivered the goods
to B. Is the evidence of “C” admissible?

 A admission is the best evidence only against the person who made it.
 Section – 20 Statement of persons expressly referred to by party to the suit.
 “C” says that A delivered good to “B”. But evidence shown that in previous occasion he
said that he had not delivered goods to “B”. As per Section 19 and 20 evidence can be
given of the statement of persons who are not parties to the suit but those statements also
affects position of the parties. They are in a way strangers to the suit. Their statements are
called admission by third parties or Vicarious admissions. Therefore evidence is
admissible.

16. A undertakes to collect rent for B. B sues A for not collecting rent due from C to B. A denies
that rent was due from C to B. Shall the statement of C that he owed rent to B is admissible ?

Section - 19
Statements made by a person whose position or liability it is necessary to prove as against
any party to the suit – are admissions it such statements could be relevant as against such persons
in relation to such position or liability in a suit brought by or against them and if they made
whilst the persons making them occupies such position or is subject to such liability.

In The Given Problem

A Statement by C that he owned B rent is an admission and is relevant fact against A if
“A” denied that c did owe rent to B
Related Case - Sivalingam Vs. Sakthivel AIR 1989 Mad 252

17. A question is whether a horse sold by A to B is sound. A says to B, go and ask C. C

knows about it. Whether “C” ‘s statement is admissible ?

SECTION – 20 – Admission of person expressly referred to by party to the suit.

Statement made by person’s to whom a party to the suit has expressly referred for
information in reference to a matter is dispute – are admissions.
In this given problem : “C” is statement is admissible. When a party makes a reference to
a third person for information any statement made by that person about the subject matter of
reference is an admission against the partly making reference.
Case Sivalingam Vs. Sakthivel.

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18. A tried for murder during the trial, evidence of his bad character is produced by the
prosecution, state the admissibility of this evidence?

Section – 54 Previous bad character not relevant

Except in reply. In criminal proceedings that fact that the accused person has a bad
character is irrelevant, unless which case it becomes relevant.

When prosecution can give evidence of bad character

Prosecution cannot lead evidence of the bad character of the accused as part of its
original case. They can produce evidence of bad character only in reply to the accused showing
his good character. In other words evidence of bad character becomes relevant only when the
accused has adduced evidence to show his good character. Otherwise the general principal is that
evidence of bad character of the accused is not relevant.
Case. Attwood Vs. R.

Exceptions
Where cases in which evidence of prisoners bad character can be given.

1. To rebut prior evidence of good character.

2. When character is in issues
3. When otherwise relevant.

19. A Agrees in writing to sell a horse to B for Rs. 10,000/- or Rs. 15,000/-. A Intends to give
evidence that he agreed to sell it for Rs. 15,000/- only .Will be allowed to do so?

Section – 93 Exclusion of evidence to explain or amend ambiguous document

Evidence cannot be given of facts which would show its meaning or remove defects –
different amounts mentioned in different part of documents or documents certain banks – oral
evidence is not allowed to show that price was actually meant or how the blanks were filled. If
the documents is mentioned no price at all – oral evidence of the price would have been allowed.
No extrinsic evidence can be given to remove patent defects.

Case Law. Keshavlal Vs. Lal bhat Tea mills Ltd.

20. A intentionally and falsely leads B to believe that certain lands belongs to A and there by
induces ‘B’ to buy the land. The land afterwards become “A” property. Will a be permitted to
dispute the earlier sale?

Section – 115. – Estoppel

When one person has by his declaration, act or omission intentionally caused or permitted
another person to believe a thing to be true and to act upon such belief neither he nor his

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representative shall be allowed in any suit or proceedings between himself and such person or his
representative, to deny the truth of that that thing.

No, A shall not be permitted to question the earlier sale made by him.

Case. Pickand V. Sears.

Estoppel can be described to a certain extent as a Rule of which is capable of creating or
defeating rights estoppels precludes the person form denying the truth of statements previously
made by him. It does not create a cause of action. It can be used as shield or not sword.

21. A sues B for money on a bond. The execution of bond is admitted. But B says it was
obtained by fraud. Which A denied. On whom does the burden of proof lies?

Section 102 Burden of Proof

The burden of proof in a suit or proceedings lies on that person who would fail it no
evidence at all were given on either side.
In this problem, If no evidence were given on either side. A would succeed as a bond is
not disputed and the fraud is not proved. Therefore the burden of proof is on “B”.

22. On 1st January 2014 A, the husband who was married to B died. On 10st Febrauary 2014.
Married C on 30th September a child was born. Discuss the legitimacy of the child.

A husband of B died on 01.01.2014. B married C on 10.02.2014 on 30.09.2014 child was

born.

Section 112
Birth during marriage conclusive proof of legitimacy As per Section 112, presumption of
legitimacy of a child is that a child born to a married parents in conclusively presumed to be their
child. Child should have been married during the continuance of marriage or if marriage is
dissolved, within 280 days after its dissolution, the mother remaining unmarried. Thus in the
problem 280 days supposed to be criteria - Narendra Nulf Paheni Vs. Ram Goving Pahani

Madras High Court in Sethu Vs. Palani.

Child born within 280 days of the husband’s death. When evidence was offered of the fact that
about the time while the son was conceived.

A died on 01.01.2014, B married C on 10.02.2014, Child born on 30.09.2014. i.e.

duration between 10.02.2014 and 30.09.2014 is 7 months 20 days that amounts to 260 days.

The law today appears to provide simple presumption of legitimate which applied to
children born during marriage whether conceived before or after that marriage took place and to
children conceived during the marriage, whether born before or after marriages dissolved of
husband’s death or otherwise

Here the child born within 280 days as per Law. Hence the child to be legitimate.

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23. A was charged with murder and he is in police custody. A makes a statement which leads to
discovery of material objects. Decide the relevancy of statement?

Section -27 – When a fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of
such information. Whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered – may be proved.
In order to assume genuine of discoveries, it has become a matter of practice that the
discoveries should be effected in the presence of evidence. The finding of articles in
consequence of the confession appears to render trustworthy that part which relates to them. That
part of an involuntary confession confirmed by the discovery of real evidence is admissible
because the half of statement is established by that evidence.

Section - 26 says confession to the police – not admissible barely.

Section – 27 permits only that point of statement which leads to the discover of fact.
Case Law Pulukuri Kottaya Vs. Emperor.
Hence in the given problem - Statement given is relevant.

24. A tried for having committed a crime at Chennai on a Particular day. He leads evidence to
prove the fact that on that day he was at Singapore. Is it relevant?

Section – 11
Facts not otherwise relevant becomes.
Relevant
1. If they are inconsistent with any fact or fact in issue
2. If by themselves or in connection with other facts they make the existence or not
existence of any fact in issue or relvant fact highly probable or improbable.

In this problem
A tried for committed murder in Chennai on a particular say on that day he was in
Singapore evidence leads to produce.
Is it relevant.

Section 11 Plea of Alibi

The fact that near the time when the crime was committed. A was at a distance from the
place where it was committed which would render it highly improbable, though not possible, that
he committed it, if is relevant.

Plea of Alibi.
Postulates physical impossibility of the presence of the accused at the scene of the
offence by reason of his presence at another place. The plea can therefore succeed only if it is
shown that the accused was so far away at the relevant time that he could not be present at the
place where the crime was committed.

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25. A give for receipt for money paid by “B” oral evidence is offered of the payment. Is the
evidence admissible?

Section 91
A Gives B a receipt for money paid by B Oral evidence is offered of the payment.
Evidence is admissible oral evidence is offered that no payment was for the offer indigo. The
evidence is admissible.

26. A is charged with travelling on a man without ticket. “A” alleged he had a ticket on whom
does burden of proof lies?

Section 106 – Burden of proving facts especially within knowledge.

The person is charged with travelling without ticket, that fact that he brought a ticket is
known only to him and therefore burden lies upon him to prove that he brought the ticket. Hence
the burden lies on A.

27. The question is whether A who is dead was the father of “B”. Is a statement of A that B was
is own son relevant or not ?

SECTION - 32
Cases in which statements of relevant fact by person who is dead or cannot be found.
Statement written (or) Verbal (or) oral or relevant facts trade by a person who is dead, or
also cannot be found, or who is incapable of giving evidence, or whose attendance cannot be
produced without an amount of delay or expenses – which under the circumstances of the case
appears to the court, unreasonable are themselves relevant.
Proof of these facts will have to be offered with first instance to make evidence relevant.
Thus if the ground of relevancy is the death of the person concerned, his death must be proved,
for if he is still alive, he must appear in person.

The question is whether A, who is dead, was the father of “B”. A Statement by A that B
was his son is relevant.

REPEATED & IMPORTANT CASE LAWS

L.K. Advani Vs. Central Bureau of Investigation

Entries in the diary (Jain Hawala Diary Case) showing certain payments made to a
political leader were not admitted as evidence. The diarlty showed no dates on which the
payments were supposed to have been made such diary cannot be regarded as a book maintained
in the regular course of business.

R Vs. Christie

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 This was a case of an indecent assault upon a young boy. Shortly after the incident, the
boy made certain statements to his mother by which he described the offence and the man who
assaulted him. The evidence of statement was excluded. Cases of Res Gestae.

R Vs Derring ton
A confession secured by intercepting and opening a letter has also been held to be
relevant. By practicing deception on the accused for the purpose of obtaining his confession
(Section - 28)

State of U.P. Vs. Raghy Bir singh.

SECTION 151
Indecent and scandalous question court may forbid any questions or inquiries which or
regards as indecent or scandalous although such questions or inquiries may be have some bearing
on the question before the Court unless they relate to facts in issue or to matters necessary to be
know in order to determine whether or not the facts in issue exists court can prevent such
questions from being asked even it the questions have some bearing upon the matter in hand.
Supreme Court considered it improper that indecent and scandalous questions were allowed to be
put to a women witness whose child had been kidnapped particularly. When the paternity of the
child was not in question.

Mirza Akbar Vs. Emperor

Statement made to the Magistrate held to be not relevant Us/.10 as it was made after the
object of the conspiracy had already been attained and had come to an end. Common intention
exiting at the time when the thing was aid done or written by one of them. Things said or done
while conspiracy was foot are relevant as evidence of common intention.

1. Vinay Kumar Vs. M.P.

2. State of U.P. Vs. shishual
Dying declaration recorded by Magistrate but not signed by declarant / deceased, not any
explanation for want of signature / doubtful – Satisfactory Dying Declaration.

1. Kamlesh Rani Vs. State of Haryana

2. Shirama Murthy Vs. State of A.P.
3 dying declaration 1st recorded by Judicial Office after ascertainment of mental and
physical condition, she clearly stated that the accused husband set her fir 3rd dying declaration
created some doubt of which benefit wne to the father of the accused. That could not be used to
vitiate the conviction of the accused on the basis of the 1st Declaration.

Babu Ram Vs. State of Punjab

During declaration in wife burning case recorded with 60 % burn injuries conviction
sustained.

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 But dying declaration not believable because of 85 % burn injuries – not fit for making
statement - Lakshmi Vs. Om Prakash

When declarant survives, his statement cannot be used as dying declaration. As long as
maker is alive it would remain only a statement recorded during investigation .

In cases of admissibility of statement of conspirator in cases of conspiracy the relevancy

anything said or written of done by any of the conspitors as relevant as it evolved from common
design and intention.

For the purpose of law of evidence, what is important is the relevancy of anything said,
written or done by any of the conspirators - Rule in R. Vs. Blake.

Blacke was working as a landing waiter at the customs house type worked at the same
place as an agent for the importers. They one changed with conspiracy to dodge the customs by
passing goods without paying full duty. Try made certain entries in two book. One of them was
used for carrying out the fraud and the entries were necessary for that purpose. But the order was
for private record or convenience, the counterfoil of the cheque book. It was held that the entries
former book was admissible against Blake, but the latter were not. A mere statement made by
one conspirator or an act that he may choose to do which is not necessary to carry the conspiracy
to its end is not evidence to that effect another. Unless they tend to advancement of common
object.

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 II YEAR OF 3 YEAR LL.B
SEMESTER - IV
EVEN SEMESTER

Page 1 of 222
SUBJECT : ADMINISTRATIVE LAW
SUBJECT CODE : TA4B

Page 2 of 222
 SYLLABUS
TA4B - ADMINISTRATIVE LAW
Unit - I Introduction to Administrative Law

Definition, Nature, Scope - Origin and Development of Administrative Law in U.K.,

U.S.A., France and India -Sources -Administrative Law and Constitutional Law-. Rule of Law
Concept, Evaluation of Dicey's concept of Rule of Law, Modern conception of Rule of Law,
Rule of Law in U.K., U.S.A. and India, Rule of Law vis-à-vis Administrative Law- Doctrine of
Separation of Powers – Meaning, Origin, Montesquieu's Doctrine of Separation of Powers,
System of Checks and Balances, Position in U.K., U.S.A., and India-. Parliamentary Sovereignty
in U.K., Limited Legislative Powers in U.S.A. and India- Classification of Administrative
Action.

A. Nature of Powers-Executive, Legislative and Judicial

B. Legislative Function-Quasi Legislative Functions -Administrative Directions.
C. Judicial Function – Quasi Judicial Functions – Tribunals and Administrative Justice.
D. Executive Function - Ministerial Functions and Discretionary Functions.
Unit - II Delegated Legislation

Meaning, Nature, Origin, Development and Growth of Delegated Legislation, Types of

Delegated Legislation and Constitutionality of Delegated Legislation-Delegated Legislation and
Conditional Legislation, Sub-Delegation-Restraints on Delegation of Legislative Power,
Doctrine of Excessive Delegation - Control over Delegated Legislation – Judicial, Procedural
and Legislative Control - Administrative Directions and Delegated Legislation.

Unit - III Procedural Fairness and Judicial Review

Principles of Natural Justice-Concept, Parameters and Application of the Principles of

Natural Justice-Rule against Bias-Audi Alteram Partem or the Rule of Fair Hearing - Meaning,
Object, Ambit and Ingredients of Fair Hearing, Institutional Decision, Post-Decision Hearing-
Reasoned Decisions- Exceptions to the Rule of Natural Justice-Effects of Breach of Natural
Justice.

Administrative Process and Judicial Review -Meaning and need for Judicial Review-
Scope of Judicial Review, Jurisdiction of the Supreme Court -Writ Jurisdiction-Appeal by
Special Leave (Art. 136)-Scope and Object of Article 136-Jurisdiction of the High Court-Judicial
Review of Administrative Action through Writs-Scope of the Writ Jurisdiction -Against whom
the Writ Lies-Territorial extent of Writ Jurisdiction - Relief against an Interim Order – Interim
Relief (Art. 226(3)]-Locus-Standi-Kinds of Writ -Grounds for issue of Writs-Principles for the
Exercise of Writ Jurisdiction, Alternative Remedy-Laches or Delay-Res Judicata-Public Interest
Litigation and Locus-Standi-Doctrine of Legitimate Expectation and Doctrine of Proportionality,

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 Statutory Remedies- Injunction- Declaration against the Government - Exclusion of Civil
Suits

Privileges and Immunities of Government in Legal Proceedings Privilege to Withhold

Documents - Miscellaneous Privileges of the Government-Notice, Limitation, Enforcement of
Court Order-Binding nature of Statutes over the States Action-Promissory Estoppel-Right to
Information.

Judicial Control of Administrative Discretion -Meaning, Nature and Need of

administrative Discretion -Ground and Extent of Judicial Review -Fundamental Rights and
Discretionary Powers.

Liability of the State - Liability of the State in Torts and Contracts

Unit - IV Ombudsman, Lokpal, Lokayukta and Central Vigilance Commission

Meaning, Object, Main characteristics, Need and Utility-Origin and Development of the
Institution -Ombudsman in New Zealand Ombudsman in England (Parliamentary
Commissioner)-Ombudsman in India -Lokpal-Lokayukta in States-Central Vigilance
Commission

Unit - V Administrative Tribunals and Public Undertaking

Administrative Tribunals- Meaning, Nature, Main characteristics, Origin and

Development (U.S.A., U.K. and India)-Franks Committee Tribunal and Court, Similarity and
Difference-Reason for growth of Administrative Tribunals-Merits and Demerits of
Administrative Tribunal-Procedure and Powers of Administrative Tribunal (U.K., U.S.A. and
India)-Tribunal under Constitution -High Court's Superintendence over Tribunals-Appeal to
Supreme Court by Special Leave-Working of the Administrative Tribunal-Administrative
Tribunals under Administrative Tribunals Act, 1985-Administrative Procedure Act in U.S.A.-
Domestic Tribunal.

Public Undertaking- Object, Importance, Characteristics, Classification, Reason for the

growth-Working of Public Corporations Rights, Duties and Liabilities of Public Corporations-
Controls over Public Corporations, Government Control, Parliamentary Control, Judicial
Control, Public Control-Role of Ombudsman in Public Undertaking.

Books for Reference

1. M.P. Jain and S.N. Jain : Principles of Administrative Law

2. S.P. Sathe : Administrative Law
3. I.P. Massey : Administrative Law
4. C.K. Takwani : Administrative Law
5. Kailash Rai : Administrative Law

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 6. Wade : Administrative Law
7. De Smith : Administrative Law
8. Foulkes : Administrative Law
9. Indian Law Institute : Cases and Material of Administrative Law
10. Markose : Judicial Control of Administrative Action
11. Griffith and Street : Administrative Law
12. Report of the Law Commission : First Report, Second Report, Fourteenth Report
13. Report on the Committee of Minister's Power : Franks Committee Report.
********************************

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 ADMINISTRATIVE LAW

UNIT – 1

INTRODUCTION TO ADMINISTRATIVE LAW

ADMINISTRATIVE LAW – DEFINITION- SCOPE AND DEVELOPMENT.

Definition:
Administrative law deals with law relating to administration. It is the basic foundation of
administration. According to Holland and Maitland, administrative law is part of Constitutional
law. The general principles relating to the organisation, powers and functions of the organs of the
State namely Legislative, Executive and Judicial and their relationship are, inter alia, dealt with,
in the Constitution.

Administrative law determines the organisation powers and functions of the Administrative
authorities (Wade & Philips). It includes the matters relating to civil services, public
departments, public corporations, local authorities and other statutory bodies exercising quasi-
judicial functions and the law governing Judicial review of administrative action. As Jennings
rightly points out, the subject matter of administrative law is "Public Administration".

Garner's definition: Administrative law is:

i) a study of institutions and administrative process ,
ii) the source of governmental legal powers,
iii) provisions or methods to deal with persons, grievances & appropriate remedies,
iv) the public corporations and
v) administration of local government & general principles applicable to local authorities.

Nature & Scope:

Administrative law mainly deals with the powers & duties of administrative authorities, and the
various remedies available to affected persons. Under Welfare State, there is a tremendous
increase in State activities in keeping with the technological & scientific developments.

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With the increase in State activities, grew the necessity to exercise powers: the administrative
and executive powers were enlarged, delegated legislation also developed in the form of rules,
regulations, bye-laws, notifications etc. Administrative Tribunals started exercising judicial
functions to resolve disputes. The Administrative authorities are empowered with discretionary
powers. If these are properly used, there will be the welfare state. If abused there will be
totalitarian state (Lord Dennings).

Hence, administrative law defines and demarcates these powers and also provides for remedies
to the affected persons, when there is abuse. This exercise of considerable power is the main
cause for growth of administrative law. The trend is to reconcile freedom and justice of persons,
with the necessities of implementing social and economic policies. In this regard, liberty and
personal freedoms are to be safeguarded within the frame work of the Constitution of India.

In this context, judicial review of administrative action, prevention of misuse or abuse of power
and provisions for suitable remedies form the basic principles of administrative law. It is true to
say with Bernard Schwartz, that "the goal of administrative law is to ensure that the
individual and the State are placed on a plane of equality before the Bar of Justice".

Reasons for growth and development:

Many reasons account for the sudden growth of administrative law. The main reasons are:-
i) The age-old laissez faire, gave way to a positive policy under Welfare State to perform many
duties and functions by the State.

ii) Legislative processes were rigid and could not be changed except by amendment by the
legislature. Under delegated legislation executive started making rules, regulations, bye-laws etc,
thus it gave flexibility.

iii) As judicial system was extensive, slow, complex and over-burdened, the speedy methods of
disposal of disputes got recognition as people found them to be quick, in-expensive and useful.
This led to the constitution and working of a large number of tribunals and quasi judicial bodies.

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iv) The evolving system of administrative law was more "functional". It was not theoretical or
technical or legalistic and hence administrative authorities could solve complex problems.

v) The administrative bodies or authorities started taking preventive measure in suitable

circumstances, e.g. in licensing, fixing of minimum wages, rate fixing, etc. Thus, it was better for
authorities to take measures to prevent adulteration of food rather than allowing adulteration by
the wrong-doer, to be sued later by the affected-persons.

vi) Authorities took effective step to enforce the measures and suspend, or cancel licenses, or in
suitable cases destroy articles i.e., narcotic drugs etc., following the Principles of Natural Justice.

These were the main reasons that gave impetus to administrative law to grow fast, especially
during the present century.

Historical sketch of the growth of Administrative Law:

i) U.K. :
According to Dicey "In England, we know nothing of administrative law and we wish to know
nothing about it". Though Dicey had much disregard, Maitland and others were of the view that
administrative discretion and administrative justice had already made their way into England. Of
course, Dicey changed his view, and, later admitted that Parliament had conferred quasi-judicial
authority on administrative bodies and hence, there was administrative law-operating.

Dicey :
Dicey explained the "Droit Administratiff” (French Administrative law) and compared it with
the “Rule of Law” of England. In his masterpiece "Introduction to the study of the Law of the
Constitution", he gave a brilliant explanation to the concept of “Rule of Law” and contrasted that
with the Administrative Law of France, and in this exercise, administrative law became
insignificant. Robson's book on Justice and Administrative law, made the study of this subject
more interesting in England.

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Apart from these developments, Lord Hewart's book 'New Despotism' exposed the dangers of
delegated legislation and forced the British Govt. to appoint the Donoughmore Committee which
suggested inter alia, to set up a select Committee on statutory instruments. This Committee
published its report in 1932.

Allens book 'Law & Order', 1945 was a critical appraisal of the executive exercise of power.
Besides, Statutory Instruments Act, 1946 and the Crown Proceedings Act, 1947 gave the
individual, better protection against the arbitrariness of the Executive. Abuse of executive power
is another aspect. The “Crichel Down Affair”, forced the Government, to appoint the Franks
Committee in 1955, and, on the basis of this "The Tribunals and Inquiries Act" was passed in
1958. This deals with the procedures to be followed by every administrative body or agency.

ii) U.S.A:
Though the origin of administrative law in the USA can be traced to the year 1789, still it is with
the passing of the Commerce Act of 1877, that it took a definite shape. Authoritative writings
like Franks Comparative Administrative Law, 1911; Ernst Freund's Case book on Administrative
law gave much impetus.

A Special Committee appointed in 1933, Report of Roscoe Pound (1933) & Attorney General's
Committee Report, 1939, paved the way for the enactment of Administrative Procedures Act,
1946.The rules and the procedures provided for in this Act, should invariably followed by all
administrative agencies and bodies, as otherwise the act of the agency will be quashed as ultra
vires by the Courts in the U.S.

(iii) FRANCE:
Droit Administratiff:
1) French Administrative Law had some peculiar features, alien to English system of “Rule of
law”, as enunciated by Dicey. It was Dicey who made a reference to the French system in his
masterpiece "Introduction to the study of the Constitution" in 1885. He had focused his attention
on two peculiarities of the French system:

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(1) The Government’s special rights & privileges against the individual's rights; and
(2) Under separation of powers, it had kept the Government officials free from the jurisdiction of
the Courts. The weight was in favour of administration. The rules of procedure followed by the
Courts were not followed by the Tribunals. Viewed from Dicey's angle there was no protection
to the ordinary citizen, in French system.

i) Conseil d' etat.

This is the Council of State (This was founded by Napolean in 1799). It is the supreme
Administrative Court of Appeal. It has certain subordinate administrative courts called 'Conseil
de prefecture' (Courts of the prefects). They are adjudicatory and consultative bodies.

Composition:
It has executive officials as presiding officers: They are selected by competitive examinations
and are given special training. The Conseil d’etat decides its jurisdiction, and procedures are laid
down by it in the form of doctrines. It is also an adviser to the Govt. It has developed a spirit of
independence. It has powers to execute its judgments directly. According to the Reform of 1900,
an aggrieved citizen who receives no reply from Government may go in appeal to the Conseil
d'etat.

Its independence and Jurisdiction are evident from a famous case. Andre Canol was convicted by
a Military Court. On application by the accused, the Couseil d’ etat held that there was a
departure from the criminal code. The President De Gaulle tried to interfere but in vain. Today in
France there are five sections. Four are Administrative and one is judicial. Each is headed by a
President.

Jurisdiction:-
The lower tribunals have jurisdiction over:-
a) Disputes between citizen and Government departments
b) Matters of appointment, promotion and disciplinary action of Government officials and
all administrative matters. It has no Jurisdiction over Magistrates and prosecutors.

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2. The Conseil d’ etat has revisional jurisdiction over the lower tribunals in respect of errors of
law, abuse of power, mala fides, failure to observe the Principles of Natural Justice etc. It may
strike down the orders of the Government officials.

In Barel's case (1954), Minister's order not to allow certain candidate to take the examination
was quashed by the Conseil d' Etat.

Assessment:
To the French citizens, the Conseil d' Etat is a bulwark (protection) against the violation of their
rights. It has provided security to the citizens.

Apeal :
There is no appeal from the highest conseil to any Court.

Conclusion:
The Conseil d' Etat is an unique institution: Its independence and jurisdiction account for its
success. It protects the right of the citizens against abuse or excess of administrative powers etc.

(iv) INDIA:
Historically it may be possible to trace the existence of and the application of Administrative law
to ancient India, and to the concept of Dharma. The King and the administrators followed
Dharma which was more comprehensive than Rule of law. During the period of the East India
Company and later under British regime many Acts, were made to increase governmental power.
The modern system started with Stage Carriage Act 1861, under which the system of granting
license was initiated.

Then followed a series of enactments to enlarge the powers of the Executive authorities :
Bombay Port Trust Act (1879), The Opium Act (1878), The Explosives Act 1884, The Arms Act
(1878), The Dramatic Public Performance Act (1876), Companies Act (1850) etc.

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The era of judicial control started with the establishment of Supreme Court at Calcutta, Bombay,
and Madras. Many enactments in the field of Health, Labour, Public safety, and Morality,
Transportation and Communication, Defence etc, were made in the present century until 1947
when India became independent.

Modern system:-
The Modern system of Administrative Law started with the inauguration of the Constitution of
India, and, the establishment of the Supreme Court of India at New Delhi. The philosophy of
Welfare State envisaged in the Constitution, ushered in, new dimensions of growth in the
social, economic and political fields.

The ownership and control of material resources of the society should be so distributed as best to
sub- serve the common good of the community and the economic distribution should not
result in concentration of wealth in the hands of a few individuals (Art. 39 of the Constitution),
became the objective of Welfare State. Since independence, a large number of enactments have
been made. New administrative agencies and bodies have been brought into existence in addition
a number of Administrative Tribunals have been established.

Provisions are made in the Constitution (Art. 32 & 226) empowering the Supreme Court and the
High Courts in India to issue writs, as Constitutional remedies. This is the effective part of
Judicial control of administrative action in India. The recognition of Public Interest Litigation
(PIL) by the Supreme Court in the Judges Transfer case (1981), Bandhua Mukthi Morcha
case (1984), Hawala case etc., added a new dimension and since then PIL is gaining ground, as
a process of participative justice.

Administrative Law in India has grown considerably during these decades in the fields of
delegated legislation, Rule of Law, Administrative Tribunals, Judicial control of administrative
action and remedies, Liability of the Government, Public Corporation and Ombudsman.

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The Lokpal and Lokayuktas Act, 2013 defines Lokpal: ‘As from the commencement of this Act,
here shall be established, for the purpose of making inquiries in respect of complaints made
under this Act, an institution to be called the “Lokpal’.

The objective is stated thus:

to provide for the establishment of the institution of Lokpal to inquire into allegations of
corruption against certain public functionaries and for matters connected therewith or
incidental thereto.

It is gratifying to note in many States in India, Lokayukta institution is effectively and efficiently
operating and the credit goes to all those officers who have honestly and sincerely discharging
their functions. With all these developments, Administrative law has grown considerably and is
recognised as an independent branch for study and is distinguished from Constitutional Law.

SOURCES OF ADMINISTRATIVE LAW:

1. Statutes
Statute law is, then, a well high exclusive source of Administrative power. The term covers both
Act of parliament and delegated legislation. Act of parliament comprise public general Acts and
private or local Acts.
Delegated of Parliament comprise public general Acts legislation, includes statutory rules and
orders. Acts of parliament fall into two categories which may be conventionally termed
constituent Acts and enabling Act, but some Acts deal with both constitution and power. In short,
we can say statues are one of the important sources of Administrative law.

2. Constitution
The constitution of India deals with formulation of the executive, the powers of the executive
during peace and emergency times.
Administrative law is concerned solely with the Administrative acts or either the administrator or
of quasi judicial bodies. Now the methods by which such acts are interfered with are by the use
of the prerogative or common law writs, especially by the writs of certiorari, mandamus and

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prohibitions. These writs are issued only by the Supreme Court and High Courts in India under
Articles 32 and 226 of the constitution of India.

This jurisdiction excludes ordinary courts. Very civil or criminal proceedings in the land.
Because those proceedings carry with them the safeguards provided by statute of the appeal,
revision and review. Hence, it is clear that these writs are not available against the judicial
proceedings of the courts.

The constitution of India also provides under Article 299 and 300, the contractual and tortious
liability of the government servants.

*****

ADMINISTRATIVE LAW AND CONSTITUTIONAL LAW:

"Administrative law is a part of constitutional law. It has become an independent branch of study
only recently."

Sometimes, a question is asked as to whether there is any distinction between constitutional law
and Administrative law. Till recently, the subject of Administrative law was dealt with and
discussed in the books of constitutional law and no separate or independent treatment was given
to it. In many definitions of Administrative law, it was included in constitutional law, though in
essence constitutional law does not differ from Administrative law as much as both are
concerned with the functions of the government, both are concerned with the functions of the
government, both are part of public law in the modern state and the sources of both are the same.
Yet there is a distinction between the two.

According to Hood Phillips:

"Constitutional law is concerned with the organization and function of government at rest while
administrative law is concerned with that organisation and those functions in motion."

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According to Maitland:
"While constitutional law deals with structure and the broader rules which regulate the functions,
the details of the functions are left to administrative law."

According to Prof. Wade:

"With the exercise of governmental power, Administrative law is itself a part of constitutional
law."

Maitland, said, "I think we catch his idea if we say that while constitutional law deals with
structure, administrative law deals with function".

Thus according to the view of these writers, Administrative law and constitutional law both deal
with the same subject. As Griffith writes that the truth is all these writers (with possible
exception of Austin) would themselves, point out, that any definition of constitutional or
Administrative law and any distinction drawn between them are arbitrary and based on the
convenience of the particular writer. Consequently Administrative law was within the books of
constitutional law, till recently. Although there is much similarity In the subject-matter of the
two laws as the definition of Administrative law by Ivor Jennings clearly indicates yet the
tremendous growth in the scope of Administrative law has separated from constitutional law. It
was Frank J. Goodnow who first took up Administrative law as a separate subject. He wrote a
book titled "Comparative Administrative Law" (published in 1893).

In India, Administrative law has not grown up fully. It is in infant stage. As regards the
relationship between the two branches of law there is no deviation from the modern tendency of
thought that Administrative law is an independent branch of the subject although the knowledge
of the Indian constitutional law is indispensable for understanding the correct position of
Administrative law in India.

Indian constitution itself envisages a few Administrative bodies mainly from the point of view of
inter-state corporation and co-ordination and to solve inter-state problems. Examples are Inter-
state council, the Finance Commission, Union Public Service Commission and the Election

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Commission. Besides this, we have several provisions in constitution, related to the control of
the Administrative powers.

In simple words, Administrative law is very much related to constitutional law. Administrative
law owes much to constitutional law, inspite of the fact that the former has developed as an
independent branch of study. In many ways constitutional law is the determining factor of
Administrative law.

****

RULE OF LAW.
Rule of law is a dynamic concept and is one of the essentials of a constitution based on
Democracy. It heralds the "Supremacy of Law' and is opposed to the Rules of man. Bracton
in the 13th century had said" Even the Rulers are subject to law', Fortseque uses this rule to
justify that tax could not be imposed without "law made by the Parliament". It was Chief Justice
Coke who originated it in England.

The modern concept of rule of law was expounded (present and explain (a theory or idea) in) by
Dicey and his exposition has three importance factors:

i) The rule against arbitrariness:-

This means that Administrative officers should not exercise their powers arbitrarily and even an
act of an officer must have some basis in the "Act" of the legislature or the rule authorizing him
to do it.

Hence, the Executive officer should exercise only those powers which are authorized by
legislature. This is what Dicey meant when he said that the rule of law is in operation. Further, it
should be noted that no discriminatory power should be given to the executive officials by Act or
by rules.

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Ultimately all the powers are to be controlled by the Constitution. This is the effective part of the
rule of law. Administrative powers are limited by legislation. But the Parliament itself is
controlled by the people.

ii) Equality:
The Second part of the rule of law is that among equals laws should be equal and should be
equally administered. It means that the like should be treated alike. To Dicey, this is 'equality
before the law' He declared that "no one should be made to suffer in body or goods except for a
distinct breach of law.”

It also means that "all persons must be amenable to the ordinary jurisdiction of the Court".
Rule of law contains the guiding principles to the administrators. They should exercise their
powers without making discrimination between persons in society. If they exercise this power
arbitrarily or by making discrimination, then, it should be controlled or corrected by Judicial
scrutiny. In India, the Supreme Court and the High Courts have powers to issue writs in the
nature of Habeas Corpus, Mandamus, Quo Warranto, Prohibition and Certiorari under Articles
32 and 226 of the Constitution of India.

Rule of law according to Dicey does not accept the French - "Droit-administratiff", as, it makes
special provisions and provides for special treatment to the Government officials who exercise
their power in the colour of their office. In India, the Courts have held that such exercise of
power by the Government officials –Central and States- is subject to judicial scrutiny.

Administration of Justice has the rule of law as its basic foundation. It means Justice should be
available to all. It should be equal and should not favour any particular individual in the society.
It also means ‘No individual shall be given preference on the grounds of his religion, race, caste,
place of birth, political influence, etc. Hence, justice under the rule of law is free from
discrimination and bias.

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iii) Common Law Rights:
According to Dicey, the third limb of the rule of law is that the Constitution of England is the
consequence of the common law right of the individuals, and hence common law is the source
of the freedom of the people. If the rights are based on a document like the Constitution, by
amending the constitution, by the Parliament, the rights can be abrogated or denied.

In A.D.M. Jabalpur v. Shukla case, our Supreme Court erred in holding that Art 21 of the
Constitution was suspended & hence, there was no remedy by writ under an emergency. This
was corrected by the 44th Amendment & hence Habeas Corpus cannot be suspended even
in emergency.
The Supreme Court held that Rule of law is the basic structure of the Constitution and cannot be
amended under Article 368 of the constitution (Minerva Mill's Case). Rule of law is explained
in Indira Gandhi v. Raj Narain and Keshavananda Bharathi's case.

In Miss Veena Seth V. State of Bihar, the Supreme Court extended Rule of Law to the poor,
the downtrodden, the ignorant, the illiterate, against exploitation. The rule of law aims at
protecting the individual his life, liberty and property.

State and the Rule of law:

In a landmark case, a Director of Rations was prosecuted by Corporation of Calcutta as he had
not taken out license for storing etc. The question before the Supreme Court was whether the
State was bound by its statute. Held: State not bound by statute. [Director of Rationing v.
Corporation of Calcutta (1960)].

This was overruled by Supreme Court in Superintendent of legal affairs West Bengal v.
Corporation of Calcutta, under "Rule of law", State was held bound to take out license etc. The
English concept of Royal prerogative is not applicable in India.

Entinck v. Corrington [UK case]

D had entered P's house by breaking open the doors, and had seized certain papers. The Court
awarded compensation to P as D had entered and seized papers. D's defence that his act was

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authorised by the Secretary of State was rejected by the House of Lords. It upheld the Supremacy
of Law and held that the Secretary of State had no statutory authority and hence had no power to
issue a warrant for search.
*****

CRICHEL DOWN CASE:

It was the big political scandal of 1954 and resulted in the resignation of a government minister,
Sir Thomas Dugdale, the Minister of Agriculture.

The case concerned a claim by a landowner of unfair treatment at the hands of the Ministry of
Agriculture and the Crown Lands Commissioners.

Contrary to wartime promises concerning procedures for resale, they held on to 725 acres of his
land that had been compulsorily purchased for £12,000 by the Air Ministry in 1937 to use it as a
bombing range.

After the Second World War, the owners asked the Government for the release of the land to
them but in vain.

A public enquiry was conducted and a report was published in 1954. It said that the department
did not properly treat the owners of Crichel Down land. The officials had committed certain
blunders.

Sir Thomas – who said he had nothing to do with the original decisions – nevertheless took
responsibility and quit.

He told Parliament: “I, as minister, must accept full responsibility for any mistakes and
inefficiency of officials in my department, just as, when my officials bring off any successes on
my behalf, I take full credit for them.”

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Then the concerned Minister resigned. Another Committee was appointed by the Prime Minister,
and then the land was returned at market value, to the owners.
*****
FRANKS COMMITTEE REPORT.
The Franks Report of 1957 was issued by a British committee of inquiry chaired by Sir Oliver
Franks in respect of growing concerns as to the range and diversity of tribunals, uncertainty
about the procedures they followed and worry over lack of cohesion and supervision. The
catalyst for this was the Crichel Down Affair. However, this was a result of a decision by the
British Government and the Franks committee was told to limit its discussion to formal statutory
procedure and not to go into decisions of the courts or one-off decisions, which excluded the
Crichel decision.
In 1955, the Franks Committee was appointed by the Lord Chancellor to enquire into the
administrative proceedings. It made certain recommendations relating to the Constitution and
working of administration tribunals in England.

The main recommendations were:

1. The Chairman of Administrative Tribunal should be appointed by the Lord Chancellor. The
Chairman should have legal qualifications.
2. Hearings should be in public, legal representation should always be allowed (Audi alteram
partem).
3. Tribunals should have powers to take evidence on oath.
4. It recommended for the appointment of a Council over the tribunals to supervise the work of
Administrative Tribunals.
5. It suggested that tribunals should observe Principles of Natural Justice and give out reasons for
the award or decision. Appeal should be allowed to the Court.

On the basis of these recommendations the Tribunals & Enquires Act, 1958 was passed. This
has provided for the Council of Tribunals. There is an appeal to the High Court from the decision
of the Tribunals.

*****

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NEW DESPOTISM:
This is a valuable book written by Lord Hewart, Lord Chancellor of England, in 1929. By a slow
but continuous process, the Parliament in England was delegating its legislative functions to the
subordinate authorities, so much so the concept of Rule of law had been sufficiently eroded.
Lord Hewart strongly criticised this tendency in his book 'The New Despotism'. Herein, he
elaborately wrote how the executive is armed with certain powers which were purely the
legislative functions of the Parliament. These powers could easily escape the scrutiny or the
supervision of both the Parliament and the Judiciary.

This book had its tremendous impact in as much as, a powerful public opinion against such
development was rised and Parliament was compelled to appoint a commission, in 1929, under
the Chairmanship of Donoughmore. It was charged with the duty to deal with the various
aspects of delegated legislation and also to suggest ways and means to control. The committee
made very valuable suggestions and also specified the limits within which Parliament may
delegate its powers.
*****
DONOUGHMORE COMMITTEE REPORT .
The Rule of law as propounded by Dicey was the rock bed (The fundamental principles on which
something is based) of British legal system. But, this suffered a set-back as administering
authorities were conferred with the powers to make rules under the concept of sub-legislative
powers. This was criticised by Carrin in his book 'Delegated Legislation'(1921). These
Administrative bodies had been invested with Judicial powers. This was the administrative
Justice criticised by Robson in his book 'Justice & Administrative Law’ (1928).

In1929 Lord Hewart published his 'New Despotism, wherein he exposed the excess of delegation
of legislative powers to ministers and other administrative authorities. All these resulted in the
British Government appointing a Committee which was headed by Lord Donoughmore. The
report was published in1932. It dealt, inter alia, with delegated legislation.

According to the Report, delegation is necessary because:

1. The legislature (Parliament) has much pressure of work on its time.

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2. The legislators lack the technical knowledge required by modern legislation.
3. Complexities & Contingencies in the law are to be specially dealt with.
4. Amendment of legislation is to be avoided.

Further it was observed that the truth was that Parliament must provide guidelines and also
scrutinise the work of the delegate to whom the power to legislate is delegated otherwise there is
the danger that "the servant would be turned the master."

These are:-
1) The limits of legislation must be precisely defined in clear language.
2) The Parliament must set up Standing Committees charged with the duty to scrutinise the work
of the delegate.
3) Henry VIII clause (blanket powers to executive bodies, to change when necessary) must be
avoided.
*****
HENRY VIII CLAUSE.
The general rule is that the legislature itself should discharge its primary legislative functions and
should not delegate them to other bodies. But, in some enactments provisions are made to
delegate certain powers to the executive. The delegation here is broad & without restriction.

For example: The National Insurance Act, 1911, mentions the powers of the Insurance
Commissioners. It also provides that they may do anything that they thought necessary and
expedient in case of any difficulty in implementing the provisions. 'To that extent may make
modifications, wherever necessary'.

This blanket power is nicknamed Henry VIII Clause. The executive is the delegate and if power
is granted to modify the provisions themselves, there is to that extent an indirect abdication of
legislative functions in favour of Executive.
A review of English Constitutional history shows how the King Henry VIII was asserting his
powers in an authoritarian manner and how he was 'modifying' the provisions to suit his

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conveniences. Hence, whenever such powers are exercised by executive, it is styled Henry VIII
powers.

Modern legislative Acts, generally provide for two types of such removal of difficulties. One is
to empower the executive to remove difficulties, consistent with the parent Act. This is to adjust
minor difficulties and is not objectionable e.g. Section 128 of the States Re-organisation Act,
1956.

However, the second type is very wide and even to modify the parent Act. This may be for a
limited purpose. It is here that Henry VIII, King of England, became authoritarian. He was a
despot (autocrat) under law. What he did was that he extended this power to an extraordinary
degree by constitutional means, to further his personal ends. Of course, he was not acting
unconstitutionally.

In India, though the circumstances are different, the executive may don on itself more powers.

In West Bengal Electricity Board v. Ghosh, the Regulation of removal of permanent employee
with three months notice or pay in lieu thereof was held arbitrary and void, such a Henry VIII
clause has no place, held the Supreme Court. Further in Central Inland water Transport Co. v.
Ganguly, the Rule in question Section 9(1) was declared by Supreme Court as void as it was a
Henry VIII clause.
*****
DOCTRINE OF SEPARATION OF POWERS.
The theory of separation of powers was enunciated by Montesquieu in his book: The Spirit of
the laws (De L' esprit des lois) (1748). He made a scientific division of the powers of the State
as Legislative, Executive and Judicial powers.

He maintained that ‘These three must be vested in three distinct & different authorities, if the
Liberty of the individual is to be guaranteed’. Having thus laid the foundation he pointed out
that there was no liberty when the legislature and executive powers were in one Authority,
(legislator should not be the executive). Again there is no liberty if judiciary is not separated

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from the legislative and Executive functions. If the Judicial and Legislative powers are joined,
the liberty would be subjected to arbitrary control, (Judge would be the legislator), if it is joined
with Executive the judge might behave with oppression and violence. There would be an end of
everything, if all the powers are in one Authority.

This theory gained general acceptance, as it was based on the protection of individual liberty.
The aim is, not to create absolute barriers but to impose mutual restraints in the exercise of
powers by the three organs of the State, viz., Legislature, Executive and Judiciary.

United States: (U.S.A):

The U.S. Constitution incorporated this theory with modification under "checks and balances".
Madison stated that the accumulation of all the three powers in one authority was the 'very
definition of tyranny'. In the U.S. Constitution, Articles I, II and III vest the Legislative,
Executive and Judicial powers in the Congress, the President and the Supreme Court
respectively. Of course, these are subject to "checks and balances".

In its practical application, the theory means that the organic powers vested in one, should not be
exercised by others. The U.S. Supreme court put it concisely when it said, in Springier v.
Phillipine Island, that the powers conferred on the legislature should not be exercised by the
executive or the Judiciary unless otherwise provided for or incidental thereto. The President
exercised the power of "veto" over Bills passed by the Congress: Congress has powers to
impeach the President; Senate has the executive power to ratify treaties; Congress may delegate
certain of its powers to administrative authorities, etc., these are examples to show that the
doctrine has undergone modifications. Hence, a rigid application of this theory is not to be found
in the U.S. or in any constitution as that would make it impossible to run the Government.

England:
According to Garner, there is 'no sharing-out' of power in England and as such 'Separation of
powers' has no place in its strict sense. There are in England, the three Authorities: Parliament,
Executive and the Judiciary. But, there is no exclusive province to any specific authority, e.g.
The Lord Chancellor, is the head of the Judiciary, Chairman of the Upper House, and a

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prominent member of the Cabinet (though not necessarily). The Court exercises legislative
powers when it is making the rules of procedure. Ministers make the subordinate legislation and
also exercise quasi-judicial powers. The House of Commons has the power to investigate and
punish for breaches of the privileges of the House. Hence, the theory has no direct application in
England.

India:
The Constitution has vested the Executive power in the President (or the Governor). There is no
such vesting in the legislature or the Executive. Article 51 enjoins [(prescribe (an action or
attitude) to be performed or adopted] separation of the Judiciary from the Executive. The
Supreme Court in re Delhi Laws Act case opined that the essence of modern separation of
powers was found in the concept of constitutional limitations and trust.

e.g.
(i) Ordinance making power of the president (Art.123);
(ii) Judiciary making its own Rules of procedure;
(iii) A Minister sitting as chairman of a Board to hear petitions;
(iv) Delegations of legislative power to subordinate lawmaking bodies etc.

In Ram Jawaya v. State of Punjab, the Supreme Court held that no organ of the state should
exercise functions that essentially belong to the other. In Keshavananda Bharathi's case the
Court held that separation of powers was part of the basic structure of constitution and even
under Art. 368, it cannot be amended.

Thus Parliament should respect and preserve the Courts: Courts should not enter into political
problems; such mutual checks and balances have become the core of separation of powers in
modern constitution.

The sum and substance is that the essential functions of the Legislature, Executive and the
Judiciary should not be exercised by the others.

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Functions: Judicial, Quasi Judicial and Administrative

Judicial, Quasi Judicial & purely Administrative functions:

These concepts are separate and distinct in Administrative law. The distinction was ably drawn
by the Committee on 'Ministers Powers’.

1. Judicial functions:
This presupposes the existence of a 'LIS' (dispute) between the two parties: plaintiff and
defendant or petitioner and Respondent. It contains the following ingredients:-
i) The case is presented by the parties.
ii) Questions of fact are decided on evidence adduced by the parties and argument thereon.
iii) Questions of law are decided on submission made by the parties.
iv) The Judiciary strictly follows the procedures, decides and disposes of the entire matter in
issue with findings and by applying the law. There is a ruling on the disputed question of law.

2. Quasi Judicial Functions:-

Quasi means "not exactly" therefore it is not an exact Judicial function. It has some of the
trappings of the Courts. The authority will not have observed all the attributes of Judicial
decision stated above. It will however observe items:
(i) & (ii) above sometimes
item (iii) but never item (iv)
It is not bound by rules of procedure (C.P.C., Evidence Act etc.)

However, it is essential and basic that the Quasi Judicial Authority should follow the principles
of Natural Justice. These are:-
i) 'Nemo debit esse Judex in propria causa' (Nemo Judex in causa): No one should be a Judge in
his own cause
ii) Audi alteram partem (Hear the other party)

Further the decision must be objective in character.

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Examples:
i) Dismissal or Removal of a Government Servant
ii) Dismissal of a student for alleged copying in the Exam.
iii) Cancelling a licence
iv)Deprivation of citizenship.
v) Impounding passport or refusing to renew, etc.

3. Purely Administrative Functions

Essential Features are:-
i) A Judicial approach need not be followed;
ii) The Act is based on policy, expediency and discretion;
iii) The decision may be subjective;
iv) The officer need not follow the Quasi-Judicial procedure;
But then it is provided for under a statute or when the rights of persons are affected, Principles of
Natural Justice should be followed by him.
v) He may affect the rights of individual, but he cannot decide with finality, Hence, Courts may
determine.
vi) The officer need not weigh the evidence and arguments placed before him.
vii) When an officer resolves to act in a particular way, at his discretion it is an Administrative
decision.
Though this distinction is broadly correct, it is often the case that the Courts do consider the
socio-economic policy, political philosophy, expediency, etc., The Tribunals decide just like the
Judiciary with impartiality. Similarly, the administration applies the law to the facts and, decide
without impartiality, in its discretion.

Examples:
1. Day-to-day administrative orders issued by the officers in the Departments.
2. Order under COFEPOSA [Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974]
3. Externment order (moving a person(s) outside a particular place for a specific period of time).
4. Order issuing a licence or permit.

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Leading cases before the Hon’ble Supreme Court.
 Ram Jawaya v. State of Punjab (1955).
 Khushal Das Advani's Case (1950).
 Board of Education v. Rice.
 Gullapalli Nageswara Rao v. State of A. P.
 A.K. Kraipak v. Union of India (1969).
 Radheshyam v. State of Madhya Pradesh (1959).
 Ridge v. Baldwin (1964).
 Maneka Gandhi v. Union of India (1978).
 State of Orissa v. Binapam Dei (1967).

Recent Developments:
The Supreme Court observed in Kraipak case, that the distinction is thin, and is almost destroyed
completely: "What was considered as administrative power some years back is now
considered as quasi judicial". There is a radical change in the approach. The duty to act
judicially is the essence of quasi judiciality. But, this arises in various circumstances and it
would be impossible to define in clear terms.

Of course, if a statute provides that an administrative authority should act judicially, it is judicial
and it should be so followed. What if the statute is silent? The House of Lords held in Ridge v.
Baldwin that even if the statute is silent, a duty to act judicially was imperative, if the rights of
the subjects are affected.

The Supreme Court followed this is State of Orissa v. Binapani Dei and held that duty to act
judicially would arise from the very nature of the function. It held "If there is power to decide
and determine to the prejudice of a person, duty to act judicially is implied in the exercise of
such power". This was followed in Menaka Gandhi's case. Thus, the exercise to draw a line
between quasi-judicial and administrative is purely academic. If the right of a person is affected,
as a result of the order of the official, it is essentially judicial and he should follow the Principles
of Natural Justice.
*****

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LEGISLATIVE FUNCTION.

When any administrative authority exercises the law making power delegated to it by legislature,
it is known as the rule making action of the administration or quasi legislative action. The
legislative functions of the executive consist of making rules, regulations, bye-laws etc.

If a particular function is termed ‘legislative’ or ‘rule making’ rather than ‘judicial’ or

‘adjudication’ it may have substantial effects upon the parties concerned. If the function is
treated as legislative in nature, there is no right to a notice and hearing unless a statute expressly
requires them.

QUASI LEGISLATIVE FUNCTION.

The capacity in which a public administrative agency or body acts when it makes rules and
regulations.

When an Administrative Agency exercises its rule-making authority, it is said to act in a quasi-
legislative manner. Administrative agencies acquire this authority to make rules and regulations
that affect legal rights through statutes. This authority is an exception to the general principle that
laws affecting rights should be passed only by elected lawmakers.

Administrative agency rules are made only with the permission of elected lawmakers, and
elected lawmakers may strike down an administrative rule or even eliminate an agency. In this
sense quasi-legislative activity occurs at the discretion of elected officials. Nevertheless,
administrative agencies create and enforce many legal rules on their own, often without the
advice of lawmakers, and the rules have the force of law. This means they have a binding effect
on the general public.

Examples of quasi-legislative actions are many. Dozens of administrative agencies exist on the
federal level, and dozens more exist on the state and local levels, and most of them have the
authority to make rules that affect substantive rights. Agencies with authority over environmental
matters may pass rules that restrict the rights of property owners to alter or build on their land;
departments of revenue may pass rules that affect how much tax a person pays; and local housing

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agencies may set and enforce standards on health and safety in housing. These are just a few of
the innumerable rules passed by administrative agencies.

Except where prohibited by statute or judicial precedent, quasi-legislative activity may be

challenged in a Court of law. Generally, a person challenging quasi-legislative activity must wait
until the rule-making process is complete and the rule or regulation is set before challenging it.
Moreover, a challenge to an agency's rule or regulation usually must be made first to the agency
itself. If no satisfaction is received from the agency, the complainant can then challenge the rule
or regulation in a court of law.
Another distinctive feature of quasi-legislative activity is the provision of notice and a hearing.
When an administrative agency intends to pass or change a rule that affects substantive legal
rights, it usually must provide notice of this intent and hold a public hearing. This gives members
of the public a voice in the quasi-legislative activity.

ADMINISTRATIVE DIRECTIONS.
Administrative Directions are instructions or regulations issued by the higher authorities to the
lower authorities in the absence of a rule or enactment pertaining to a specific issue or to
compensate or fill the lacunas in the existing laws and thereby constructing better standards or
platforms to tackle issues. Administrative directions is otherwise designated as ‘Administrative
quasi-law’ or ‘Administrative quasi-legislations’.

These directions can be specific, that is formulated and applied to a particular purpose, or a
particular case`; or it may be general nature, laying down general principles, policies, practices,
or procedures to be followed in similar cases. And further, these direction are issued in the form
of letters, circulars, orders, public notices, pamphlets, press notes, etc, it is even published in
Government Gazette.
In contemporary India, the government enjoys indefinite or boundless administrative powers,
and therefore the areas of issuing administrative directions are quite ample. The concept of
Administrative directions has its roots in Article 73 and Article 162 of the constitution. These
Articles deals with administrative powers of Government and such directions are generally
issued under it. According to Article 73, the executive power of the Union extends to the matters

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with respect to which Parliament has power to make laws. Similarly, according to Article 162,
the executive power of the State extends to the matters with respect to which State Legislative
has power to make laws. These provisions exclusively deals with the executive power of
government and do not confer any kind of legislative power. At times, statutory powers are
granted to issue directions. A direction issued under statutory power prevails over a direction
issued under general administrative power. In the case of Secretary to the Government of
Haryana v Vidya Sagar, where two circulars are issued on the same subject and the former was
general and later was specific, it was held that the latter one will prevail.

A direction does not confer any enforceable rights on an individual, or impose an obligation on
the Administration or individual. Even if a direction is misapplied or ignored by the
Administration, the affected individual can hardly claim a remedy through a court of law. But,
this doesn’t mean that, administrative authorities may disregard them with impunity. The
authorities are expected to follow the directions and their breach by them may lead to
disciplinary or other appropriate actions against them.

At this point, it is essentially relevant to consider the concept of Delegated Legislation, as it is an

equally relevant and superior concept that comes under the administrative powers of
government. Similar to Administrative directions, delegated legislations or rules are also
formulated for the same purpose or under such circumstances, but unlike directions, they are not
made under the executive power conferred on government, rather these rules are formulated in
accordance with the legislative powers conferred on the administrative bodies via constitutional
or statutory provisions. As mentioned above, in legal hierarchy, delegated legislation is superior
in authority to a direction. The main point of this disparity in authority can be attributed to the
well established enforceability of rules or delegated legislation. That is, delegated legislation is
binding on both, the Administration and the individual and is enforceable through a court of law.
On the other hand, Administrative directions as discussed in the above paragraph are not so
binding and enforceable. Though minor remedies are made available to render the individual
secured, the point still remains valid that the remedy available to the individual is intra-
departmental or administrative in nature, not through court of law.

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Moreover, a rule can override an instruction but an instruction cannot override a rule. This
principle was well established in the case of Jagit Singh v State of Punjab, in this case, the
State government had made a request to the Punjab Public Service Commission to select and
endorse six vacancies in the Punjab Civil Services (Executive Branch). The appellant secured
third position amongst the Scheduled Caste (SC) candidates in the competitive exam that was
consequently conducted. The reserved quota was 20% and appointment letters were issued to the
first two candidates.

Need for Administrative Direction

Though not very comprehensive and authoritative, Administrative directions have become an
integral part of Indian Administrative system. These directions often serve as the best means to
inform the people regarding the dynamic policy decisions of government. Directions are issued
in order to fill the lacunas in administrative arena and to meet the exigencies. Supreme Court in
Union of India v Rakesh Sharma observed that, if the rules are silent on any point the
Government can fill up the gaps and supplement the rules by issuing instructions not inconsistent
with the rules. It is often used to lay down procedure for various purposes to be followed by the
Administration or the public. Directions are a part of the internal administrative procedure of
government procedure of a Government department. When a number of officials are engaged in
executing in a law and taking decisions there under, directions may serve the purpose of
providing some criteria which may be followed by these officials in discharging their functions
so that there will be a uniformity of approach in disposing similar cases.

Here arises a question as to why Administrative Direction, when there is are provisions to make
rules or delegated legislation which is more powerful? This trend of resorting to administrative
directions can be attributed to the flexibility or easiness in formulating and implementing
administrative directions. On the other hand, certain formalities or procedures such as laying
before parliament, consultation of affected interest, republication, publication in gazette etc are
to be met for formulating or promulgating a rule, issuing a direction is devoid of all kind
burdening procedural catenae and therefore administrative directions are proffered over rules.
Further, Government may change a direction at any time without much formality, a direction can

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be amended by issuing another direction. While, amending a rule is not that smooth and it
involves a catenae of procedures.

Circumstances That Render Administrative Directions Invalid

i) An administrative direction will be held void if it is against this principle of Natural Justice.
ii) A direction should not be inconsistent with other existing rules or laws.
iii) A direction should not encroach into or adversely affect individual rights. Any restriction
prejudicial to individual interest can be placed only by law, cannot be done through
administrative directions.
iv) A direction can stand only if it in congruence with Article 14 of the constitution.

*****
JUDICIAL FUNCTIONS.
According to committee on Ministers Power – Pure Judicial Function pre supposes an existing
dispute between two or more parties & dispute between two or more parties & it involves four
requisites.
 Presentation of their cause by the parties to the dispute
 If the dispute is question of fact- ascertainment by evidence, arrangements etc.
 If the dispute is question of Law submission of Legal argument by the parties.
 A decision- by finding facts in dispute & application of Law to the facts— ruling upon
disputed question of Law. Thus in a pure judicial function – The aforesaid if requisites
must be present the decision is Judicial decision even though it might have been made by
Minister, Board Exe-authority Adm./ officer, tribunal etc.

QUASI JUDICIAL FUNCTIONS.

“Quasi” means “not exactly”. Generally an authority is described as quasi-judicial when it has
some attributes or trappings of judicial functions but not all.

Griffith and Street – Stated that quasi judicial function stands midway between judicial function
& Adm. Function. Quasi Judicial decision — is nearer to administrative decision in terms of

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discretionary element & nearer the judicial decision in terms of procedure
procedure & objectivity of its
end product.

Quasi-Judicial
Judicial & Judicial: Distinction

*****

TRIBUNALS AND ADMINISTRATIVE JUSTICE.

Importance of Administrative Tribunal.

Tribunal
The
he reasons why parliament increasingly confers powers of adjudication on special tribunals
rather than on the ordinary courts may be stated positively as showing the greater suitability of
such tribunals, or negatively as showing the inadequacy of the ordinary courts for the particular
kind of work that has to be done.

The growth of administrative

dministrative decision making was the need to explore new public law standards
based on moral and social principles away from the highly individualistic norms developed by
the courts. Realising their limitation, the Supreme Court once said that leaving suc
such technical
matters to the decision of the court is like giving surgery to a barber and medicine to an
astrologer.

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An even more important practical reason for the growth of tribunals was the desire to provide a
system of adjudication, which was informal, cheap and rapid. Litigation before a court of law is
not only time consuming but is a luxury for the rich man. The reasons why parliament
increasingly creates tribunals may be the ordinary courts are already over burden with work,
their procedures is technical and costs are prohibitive and questions arising out of a social or
industrial legislation are better decided by persons who have an intimate and specialised
knowledge of the working of that Act. Hence for a government, this has taken on ambitious and
massive plans of public health, education, planning, social security, transport, agriculture,
industrialization, national assistance. It is impossible to carry out these programs and determine
legal questions involved therein with the assistance of the law courts because of their highly
individualistic and ritualistic approach.

No intensive form of government can function without a decision making system of its own.
Therefore, administrative decision making through administrative tribunals is inevitable and
essential. The Administrative Tribunal can adjudicate on the matters: levy, assessment, collection
and enforcement of any tax; foreign exchange, import and export across customs frontiers;
industrial and labour disputes; land reforms by way of acquisition by the State of any estate as
defined in Article 31A or of any rights therein or the extinguishment or modification of any such
rights or by way of ceiling on agricultural land or in any other way; ceiling on urban property;
elections to either House of Parliament or the House or either House of the Legislature of a State,
but excluding the matters referred to in Article 329 and Article 329A; production, procurement,
supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as
the President may, by public notification, declare to be essential goods for the purpose of this
article and control of prices of such goods; any matter incidental to any of the above specified
matter.

Objectives of the administrative tribunals.

a. To provide for a forum to deal exclusively with service matters which off loaded the burden of
the cases of High Court from their jurisdiction;

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b. To provide inexpensive and speedy relief to government servants in service matters;

c. To provide special powers to the tribunals to make their own special powers and procedures
and not be guided by the Civil Procedure Code or the Law of Evidence but to work according to
rules of natural justice.

d. As far as creation of tribunals is concerned constitution is silent. No express provision in the

Constitution, as it stood originally, provides for the establishment of tribunals. However, Articles
262(2) and 263(1) are important in this regard.

 Article 262(2) provides for the creation of tribunal to adjudicate the disputes relating to water
of interstate rivers or valleys.

 Article 263 (1) provides for creation of council charged with the duty of inquiry into the
disputes between states. Apart from these two Articles, the creation of tribunals is implied in
the Articles 136, 226 and 227 of the Constitution as the term ̳tribunal‘ is used in these Articles.
However, forty second Constitutional Amendment expressed the provision for the creation of
tribunals. This Amendment opened the possibility for the proliferation of the tribunals system
in the country.

 Article 323A empowers the parliament to establish service tribunals, which will deal with the
service matters i.e., recruitment, conditions of service of persons appointed to public services
and posts in connection with the affairs of the Union or any State or any local or other
authority in India or under the control or owned by the government and Article 323B
empowers the appropriate legislature to provide the law, for adjudication or trial by tribunals
of any disputes and offences with respect to several matters.

 Further the Article 323B is wide amplitude and it provides that tribunals may try certain
criminal offences also. In 1985, Parliament passed the Administrative Tribunals Act in
pursuant of Article 323 A of the Constitution.

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 And under Article 323B parliament and state legislatures are passing law from time to time
which provided for the creation of tribunals. The work assigned to the tribunal is very
complex in nature. It requires qualified and experienced members to the adjudication of the
subject matters. Hence the chairman must come from judiciary with an experience of
adjudication to his credit. He must be legally qualified person because he only can apply
statute law or case law to complex situations other members of the tribunal shall have the
sound professional knowledge and practical experience of the service matters. So they are to
be senior executive officers who are men of character, integrity and having best ability.Each
tribunal shall consist of chairman, Vice chairman and judicial and administrative members in
such number as the appropriate government may deem fit. The qualifications are fixed by the
President of India after consulting Chief Justice of India and for their members‘ consultation
with the Government of the concerned State i.e. in case of State Administrative Tribunal or
joint Administrative Tribunal will be made. The chairman of tribunal has been given the
exclusive power to constitute bench. He may transfer the vice chairman or other member from
one bench to another. He can constitute a bench composed of more than two members and
also single member bench.

*****

EXECUTIVE FUNCTIONS.

In Ram Jawaya V/s State of Punjab, Mukherjee C.J. observed. “It may not be possible to frame
an exhaustive definition of what executive functions means and implies.
Ordinarily the executive power connotes the residence of Govt. function that remains after
Legislative & Judicial functions are taken away.

MINISTERIAL FUNCTIONS.

Ministerial function is that function of agency which is taken as a matter of duty imposed upon it
by the law devoid of any discretion or judgment. Therefore, a ministerial action involves the
performance of a definite duty I respect of which there is no choice, no wish and no freedom.

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Here, the high authority dictates and lower authority carries out. Collection of revenue may be
one such ministerial action.

When an administrative agency is acting ministerially it has no power to consult its own wishes
but when it is acting administratively its standards are subjective and it follows its own wishes.

*****

DISCRETIONARY FUNCTIONS.
In Layman’s language, discretion means choosing from amongst the various available
alternatives without reference to nay predetermined criterion, no matter how fanciful that choice
may be.
CJ. Coke says– Discretion is a science or understanding to discern between falsity and truth,
between right and wrong and not to do according to will and private affection.
The problem of administrative discretion is complex. It is true that in any intensive form of
government cannot function without the exercise of some discretion by the officials. It is
necessary not only for individualization of the administrative power but also because it is
humanly impossible to lay down a rule for every conceivable eventuality in the complex art of
modern government. But it is equally true that absolute discretion is a ruthless master.

*****

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 UNIT - 2
DELEGATED LEGISLATION
Doctrine of Delegated Legislation.
i) Meaning:
The Maxim ‘delegatus non-potest delegare’ means a delegated power should not be re-
delegated. The Parliament is the Delegated authority of the people, i.e., to declare what the law
shall be. This power is to be exercised only by the Parliament and should not be delegated to the
executive or any other authority. Parliament cannot create a parallel legislature to destroy its
legislative power. Though this is true in principle, in reality delegation has been resorted to in
U.K., U.S.A., India etc.

Delegated Legislation is generally understood to be the "legislation" made by any authority other
than the Parliament or State legislature, but this duty entrusted by the "Act" passed by the
Parliament or State legislature to the said authority. This is the subordinate authority which
makes "subordinate legislation" within the limits prescribed by the parent Act.

E.g: Payment of Bonus Act enables "Central Government", to exempt certain establishments on
certain considerations. The Minimum Wages Act has enabled the central Government to add any
other establishment to the schedule, to apply the Act. The exercise of this by Government is
delegated legislative authority and is valid under delegated legislation.

Apart from this, delegated legislation also means the rules, regulations, bye laws, orders etc,
made by subordinate Authority. Thus, the parent Act is made by the Parliament or State
legislature, and a subordinate authority makes delegated legislation.

(ii) Necessity: The necessity for this delegation may be accounted for as follows:

1. The bulk of modern legislation is so great that the Parliament has neither the time nor energy,
not the desire, to go into details. The Parent Act is made by it called skeleton & the details are
filled in by the appropriate subordinate legislative body- which gives flesh and blood to the
skeleton law. (Child legislation)

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2. Laws requiring technical details are best attended by leaving them to the experts.

3. There are many advantages in the 'sub-laws' as the authority may make modifications,
depending on the contingencies, of course, within the frame-work of the Parliament's Law. This
has relieved the Parliament of making law each time a change is required.

4. The Committee on Minister's powers succinctly (concisely) described: 'The truth is that if
Parliament were not willing to delegate law-making power', Parliament would be unable to pass
the kind and quality of legislation which modern public opinion requires'.

5. Amendment by Parliament in slow, and cumbersome.

6. The executive may take quick action in times of emergency or war. Similarly when there is
epidemic, floods, economic depression, health hazards etc delegation is essential.

7. Modern complex administrative matters require a dynamic approach.

iii) Essential functions:

The Supreme Court has laid down that essential functions entrusted to the Parliament should not
be delegated. It has laid down judicial tests to find out what are essential functions or powers
which are non-delegable. If a non-delegable function is delegated, that delegation is bad and ultra
vires of the Constitution.

iv) Non-delegable functions of the Parliament (or State Legislature):

These are:-
a) It is the essential duty of the Parliament to lay down the legislative policy of the Government.
Hence, this Policy making should not be delegated to any other authority, like the executive.

b) To effect any amendment to an Act, is the essential duty of the Parliament. The Executive
Authority should not be allowed to change the Act.

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c) To declare the offence under a penal law is the essential function of the Parliament.

d) To declare punishment, penalties etc., is the essential function of the Parliament / Legislature.

e) To impose a tax, fee, in an essential function of the Parliament / Legislature (Art. 265).

f) When tribunals are constituted specifying the jurisdiction and powers is the essential duty of
the Parliament.

g) To repeal a law or to provide exemptions is an essential function of the Parliament.

(h) Giving an Act, retrospective effect is an essential function.

(i) Legislature cannot provide for Henry VIII Clause to enable the executive to make law in the
guise of "removing difficulties" (W.B. Electricity Board v. Ghosh)

Leading Cases:
1. Panama Refining Co. v. Ryan (1934)
Congress in the U.S., authorized the movement of oil in Inter-State Commerce, if it is produced
by the State in excess of the fixed quota. Held, there were no standards, guidelines laid down by
the Congress and there was no definite policy. Hence, this delegation was bad.

2. Yarkus v. U.S.
During World War II, the Price Administration Dept, was authorised to fix prices as per the
policy of the Govt. Held, this was valid as the Legislature had given sufficient guidelines and
standards to decide the prices.

3. In re Delhi Laws Act Case (1950)

Part 'C' State (Laws) Act 1950: was made by Parliament. It gave the Central Govt. the power to
extend any of the existing laws of Part ‘A’ State to Part ‘C’ State. Further, even future laws made
in Part ‘A’ State, could be extended to Part ‘C’ State. If the Government so desires it may modify

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or repeal any corresponding law existing in Part ‘C’ State. Held, that power which enabled the
Executive Govt. to repeal the existing Part ‘C’ State law was ultra vires. Held, modification
power should not be extended to change the policy itself or change the essential features of the
Act. Thus, delegation is valid, but strictly limited.

4. Shama Rao v.Pondicherry (1967)

The Pondicherry Sales Tax Act was made. It authorised to apply the Madras Sales Tax Act, after
due notification. The Madras legislature effected certain amendments. The Pondicherry law
stated that the Madras Sales Tax Act was applicable as and when amended. This was challenged.
Held, the delegation by Pondicherry was excessive and therefore ultra vires. The Major Act and
the Amendment were both void. Actually there was abdication of authority by the Pondicherry
legislature, therefore its Act was bad. This was followed in Brijsunder v. District Judge (1989).

5. Hamdard Dawakhana v.Union (1960)

In this case, the Drugs and Magic Remedies Act provided that no advertisement must be made
which recommends the use of certain drugs which are calculated to be used to cure venereal
diseases, improving sexual potency and any other disease or condition which may be specified
by the Central Government. Held, this was excessive delegation as 'any other' has no control or
guidelines. Hence, the delegation was unguided or uncontrolled.

6. In Jalan Trading Co. v. Mazdoor Sabha.

The Payment of Bonus Act provided that: 'If any difficulty ordoubt arises, the Central Govt. may
make such provision as is necessaryfor removal of that difficulty or doubt & the order of the
CentralGovernment. was final'.The Supreme Court held that 'clearing doubts' is primarily a
legislative power & should not be delegated to the executive. It wasan unchartered delegation &
hence void.

7. In Devi Das V. State of Punjab, the Punjab General Sales Tax Act provided that the State
Govt. may fix the rates of Sales Tax. This was held to be void as in excess of delegation. Hence,
power to fix rate of tax should not be delegated.

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Recent developments:
In Gwalior Rayon Silk Mfg. Co. v. Asst. Commissioner: it was challenged before the Supreme
Court, that the Central Sales Tax Act, Section 8(2) (b), did not fix the rate of tax, but adopted the
concerned State’s rates applicable, if the tax on sale or purchase was above 10% and that there
was no legislative policy. The Court rejected this contention and, upheld the section. The Tax
Department's argument that Parliament's power to repeal was sufficient control, and no policy
need be stated, was rejected by the Court.

The Court held that the Parliament should state the legislative policy, standard or principle for
the guidance of the delegate. Section 8(2) (b) was upheld on the ground that it was made to
prevent evasion of tax. What is prohibited is abdication of power to subordinate body or
authority. There was no abdication and hence valid.The above decision was reiterated by the
Supreme Court in Kerala State Electricity Board v. Indian Aluminium Co.

Delegable Functions.
This is also called permissible delegation.
i) Power to extend the duration of a statute is delegable, if the Act has so provided.

ii) The Parliament may allow the executive, at its discretion to adopt an existing statute and
apply that to a new area without modifying the Policy of the Act. (Conditional Legislation).
R. v. Burah.

iii) When the legislature lays down definite standards and policy to be applied in Administration,
the power to exempt persons or items within those limits is permissible.

iv) To fix a date called "appointed day" for the commencement of Statute is delegable, to the
executive. The Govt. may by notification in the official gazette announce the date of
commencement. The Act comes into operation on and from that date. Sir Cecil says: here the
legislature has provided the gun and target, the Govt. only presses the trigger. The delegation is
valid.

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v) Parliament may leave it to the subordinate agency to fill in the details to carry out the policy
of the Act. Here the ancillary functions are delegated. Ex: All India Services Act, 1951, enables
the Central Government to frame rules to regulate conditions of service.

SUBORDINATE LEGISLATION / SUB DELEGATION.

1. Meaning:
Parliament or State Legislature under its 'Act', may empower a subordinate authority (named in
the Act), to fill in the details. Such a law made by the authority is subordinate Legislation, (also
sometimes called sub delegation or Quasi-legislation or child legislation).The different kinds of
such legislation are: Rules, Regulations, Orders Notification, Bye laws, Standing Orders,
Schemes etc.

2. Procedure:
The Parliament in its 'Rules of Procedure and Conduct of Business of the House of the People',
has constituted a 'Committee on Subordinate Legislation' charged with the duty to scrutinise and
report (Rule 317) to the House whether the delegated powers have been exercised within the
framework of the concerned Act. This states that Rules, Regulations etc. must be laid before the
House. These must be published in the official Gazette. The Committee scrutinizes and reports.
Thereupon it is formally passed by the House.

3. Kinds:
i) Rules:
These are framed by the concerned statutory authority named in the Act. e.g. Income Tax Rules.

ii) Orders:
The Government is empowered to issue the orders according to the Parent Act.

iii) Regulations:
These are generally made by such autonomous statutory authorities like Universities, public
corporations etc.

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iv) Notification:
It is a statutory instrument under which the Government heralds its power to make rules or
exercise some power under a Statute (Act), e.g: Defence of India Act provided as follows: The
Central Government may by notification etc.

vi) Standing Orders:

These are made by an Industrial establishment dealing with the conditions of service agreed to
by employer and workers. But, these are to be certified by the prescribed authority
(i.e. Commissioner) for their validity.
vii) Rules made by the Courts:
The Supreme Court Rules 1950, the High Court Rules and the Rules of Practice (for Lower
Courts). These are made by the Courts (subject to Ultra Vires Doctrine).

viii) Schemes:
These are the ways and means to implement certain measures e.g. Bonus schemes. It may be in
any other area as a Scheme under Motor Vehicles Act to take over or nationalize certain routes
etc.

4. Legislative Control.
Parliament has power to control the subordinate law making agency. In fact, Parliament has not
only the right but it is under a duty to see that it delegate, carries out what is entrusted to it. It is
for this reason that procedural safeguards are provided:

a) The primary condition is that it must be laid before the Parliament, for a prescribed time.
b) Scrutinising Committee must consider & approve & report to the Parliament.
c) Where affected persons or groups are to be consulted it is mandatory and must be consulted.
d) Publication of the Rules etc. in the Official Gazette is a must.

(i) Laying on the table of the Houses :

This brings to the knowledge of the Parliament, what the rules as framed by the executive are.
Further, the legislators get an opportunity to examine and propose changes, if need be.

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The procedure in India is generally:-
i) Rules should be laid as soon as possible on the table of each House for 30 days
ii) Modification, may be made by each House if found necessary.
iii) Publication in Official Gazette.
According to the Supreme Court the publication is essential. (Harla v. State.)

(ii) Scrutiny Committee:

The Lok Sabha Committee on subordinate legislation and the Rajya Sabha Committee on
subordinate legislation in Parliament are charged with the duty to study and scrutinise all
subordinate legislation and report to the Houses whether the powers are properly exercised.These
two bodies act as watch-dogs which bark and arouse their master (House) from slumber
when they find that there is an invasion on legislative power. These two are evidently vigorous
and independent bodies, and, their working is very satisfactory, thus preventing usurpation of
power of Parliament.

*****

DELEGATED LEGISLATION.
Introduction.
Parliament does not have the time or the expertise to pass every law that is required each year.
It is therefore necessary for it to give some of its power to other people and organisations to
make laws.
Parliament gives this power in an enabling Act.
There are three main types of delegated legislation:
• bylaws
• statutory instruments
• Orders in Council

Bylaws.
Bylaws are made by local councils and other public bodies.

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For example, a local council might wish to ban drinking in its town centre. Another example
would be the fines incurred by people who let their dogs foul in public parks.
Public corporations, such as the bus and train services, are able to impose fines for non-payment
of fares.

Statutory instruments.
Statutory instruments are regulations made by government departments to implement the
provisions made in Acts of Parliament.
For example, the Department of Constitutional Affairs can make changes to the provision of
legal aid under the Legal Aid Act 1998.

Orders in Council.
Orders in Council are laws passed by the Privy Council, which is a group of senior politicians
who are allowed to make law without the need for the whole of Parliament to be sitting.
The Privy Council has the power to pass laws in times of emergency with the permission of the
queen under the Emergency Powers Act 1920. It may do this in wartime.

Controls on delegated legislation.

• general supervision of delegated legislation
• parliamentary supervision of delegated legislation
• court supervision of delegated legislation

- General supervision
Enabling Act: the enabling Act sets out the powers that Parliament wishes to delegate.
Consultation: the enabling Act may specify that certain organizations or experts must be
consulted before delegated legislation is made.
Publication: all delegated legislation is published and made available for interested parties to
read.

- Parliamentary supervision.
• All bylaws are checked by the relevant government minister.

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• All statutory instruments are scrutinised by a group of MPs known as a select committee.
• Affirmative resolution procedure -requires some statutory instruments to be voted on by
Parliament.
• Negative resolution procedure - means that most statutory instruments become law unless a
debate is requested by a Member of Parliament (MP).
• Question time - Government Ministers are accountable and can be questioned by Parliament

- Court supervision: Judicial review.

Under judicial review, an organisation or member of the public may challenge a piece of
delegated legislation in the High Court.
The judge will interpret the wording of the enabling Act to decide whether the law was made
ultra vires (beyond the powers granted by Parliament). If the legislation is found to be ultra
vires, it will be declared void.

Judicial review.
Substantive ultra vires: delegated legislation will be declared void if it allows something that
the enabling Act did not intend, e.g. Commissioners of Customs and Excise v Cure and Deeley
(1962), or if the law made under the enabling Act is ‘unreasonable’ (‘Wednesbury
unreasonableness’).
Procedural ultra vires: the enabling Act may set out certain procedures that must be followed
before delegated legislation can be passed, e.g. Agricultural, Horticultural and Foresty Training
Board v Aylesbury Mushrooms Ltd (1972).
Topic 2

Advantages of delegated legislation

• It saves time. Parliament is only able to pass about 50 Acts of Parliament per year. It is
therefore vital for it to delegate power to make the thousands of other necessary laws.
• It is flexible. Delegated laws can be passed more quickly if they are not required to go through
the official legislation process.
• It is made by experts.

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Disadvantages of delegated legislation
• It is undemocratic because it is made by unelected people rather than by Parliament.
• The sheer quantity of delegated laws made each year makes it difficult for the public to be
informed of all the changes to the law.
• Although there are controls and checks for delegated legislation, the large quantity makes it
difficult for proper scrutiny to occur.

Constitutionality of Delegated Legislation

It might be so that the parent statute may be constitutional, but the emanating delegated
legislation maybe in conflict with some provisions of the constitution. The principles of law
applicable to judge the constitutional validity of the Statute are also applicable equally to test the
constitutional validity of the Rules/delegated legislation framed under the said Statute.

If the rules go beyond the rule making power conferred by the Statute, the same has to be
declared ultra vires. If the rule supersede and replace any provision for which power has not
been conferred, it becomes ultra vires.

Therefore, in order to determine the validity/legality of the rules, the basic test is to determine
and consider the source of power which is relatable to the rule. Similarly, a rule must be in
consonance with the parent statute as it cannot travel beyond it.

The judgment of the Supreme Court in :

General Officer Commanding-in-Chief v. Subhash Chandra Yadav
wherein it has been held as under:
“Before a rule can have the effect of a statutory provision, two conditions must be fulfilled,
namely:
(1) it must conform to the provisions of the statute under which it is framed; and
(2) it must also come within the scope and purview of the rule making power of the authority
framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be
void.”
*****

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CONDITIONAL LEGISLATION.
When the Legislature enacts a law and authorises the Executive authority to bring into force in
such areas or at such times as it decides or to extend the life of the Act, it is generally called
'Conditional Legislation’. This doctrine was invented by Privy Council, in R v. Burah (1878).
In 1869, the Indian Legislature passed an Act under which it removed Gora Hills from the
system of Law & Courts prevailing therein and vested the administration of justice in some
officers. These officers were to be appointed by the Lt. Governor of Bengal. It also empowered
the Lt. Governor to extend to Gora Hills any other law in force in other places under his control.
The Lt. Governor was allowed to fix a date for the commencement of the Act.

The Privy Council held the Act as valid. The reason was that the Act had exercised its judgment
regarding the place, persons, laws and powers etc., and the Indian legislature having plenary
powers had legislated conditionally. Hence, fixing the date, extending the Act etc., was valid.
Burah and others were convicted as extension of law to them was held valid by the Privy
Council.

The legislation is complete in itself but its operation is made to depend on fulfilment of
certain conditions and what is delegated to an outside authority, is the power to determine
according to its own judgment whether or not those conditions are fulfilled.

It contains no element of delegation of legislative power and is, therefore, not open to attack on
the ground of excessive delegation.
Ex: Sardar Singh V. State of Rajasthan AIR 1957 SC 510
In this case, it was laid down that when an appropriate Legislature enacts a law and authorises
an outside authority to bring it into force in such area or at such time as it may decide, that is
conditional and not delegated legislation.

The Supreme Court in Tulsipur Super Co. Ltd v. Area Committee applied this doctrine. Under
Sec. 3 of the U.P. Town Areas Act, 1914, the Government issued a notification extending the
limits of Tulsipur town to Shitalpur village. The sugar factory in Shitalpur affected by it
challenged this notification. The Court held that the Act had provided the conditions and that

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extension was valid as delegated legislation. The other cases are Inder Singh v. Rajasthan and
State of Bombay. V. Narotham Das.

Conditional Legislation: Summary

In this, the subordinate authorities are not delegated to legislate.
It is contingent and conditional. It is only a time factor. Upon reaching certain time or
circumstance, the readymade Act (legislated by supreme legislative authority) is put into force.
The subordinate authorities cannot use their discretionary power. It is their only duty to apply the
law after fact finding (e.g. to inquire whether facts requiring operation of the Act exist).
The conditional legislation delegate’s power is that of determining when a legislative declared
rule of conduct shall become effective.
*****
DOCTRINE OF EXCESSIVE DELEGATION.
While accepting the proposition that delegated legislation is indispensable today, the question of control over this
activity of the Administration becomes crucial. The question of control arises arises at two stages.

1. At source, when legislative power is conferred on the Administration by the Legislature. In England, Parliament
is regarded as supreme and so the courts cannot control Parliament in the matter of delegation of legislative power.
But in USA, the situation is different because of the prevalence of doctrine of separation of power. Therefore the
proposition that is followed here is that legislature ought not to delegate unlimited power to an administrative
authority. The legislature should itself discharge the essential legislative functions, viz., to make and lay down the
policy of statute, and that only the power to lay down details to effectuate that policy may be delegated.
The principle of excessive delegation has been laid down in Panama and the same principle has been adopted in
India as well.

In Panama Refining Co. v. Rya: The Plaintiffs sued to restrain the defendants, who were the federal officials
from enforcing the regulations IV, V and VI prescribed by the Secretary of the Interior under Section 9(c) of the
National Industrial Recovery Act as an unconstitutional delegation to the President of legislative power and as
transcending the authority of the Congress under Commercial Clause. The section purports to authorize the
President to pass a prohibitory law. In this case the delegation was held to be invalid since it involved a very
sweeping congressional delegation. The Supreme Court declared: “ In view of the scope of the

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broad declaration, and of the nature of the few restrictions that are imposed, the discretion of
President in approving or prescribing codes, and thus enacting laws for the government of trade
and industry throughout the country is virtually unfettered”.
The Court found no standard in the Act. The code-making authority was held to confer an unconstitutional
delegation of legislative power.

2. After delegated legislation has been made by the concerned authority in exercise of the power conferred as in
(1.)Delegated legislation has come to stay as an important component of the modern administrative process. The
question today lies is not whether there should be delegated legislation or not, but is to ensure that power given to
the Administration is exercised properly, under proper controls, so that benefits of the institutions may be
minimized. This leads to the important question of Judicial Control of Delegated legislation.

Nature and Scope

It has been accepted that Parliament does not possess the legislative power as an inherent and original power. That
power has been delegated to it by constitution. Parliament thus possesses not a right that it can delegate by its sweet
will, but a competence that the Constitution obliges it to exercise itself. It cannot legally delegate its legislative
functions to the executive. Such delegation would be unconstitutional. It is well settled that essential and primary
legislative functions must be performed by the legislature itself and they cannot be delegated to the executive.
Essential legislative functions consist of determination of legislative policy and its formulation as a rule of conduct.
In other words, a legislature has to discharge the primary duty entrusted to it. Once the essential legislative powers
are exercised by the legislature, all ancillary and incidental function scan be delegated to the executive.
In Great Britain, excessive delegations of parliamentary powers are political concerns, in United States (and in
India), they are primarily judicial.

Principles to determine excessive delegation

The question whether there is excessive delegation or not, has to be examined in the light of three broad principles:
1. Essential legislative functions to enact laws and to determine legislative policy cannot be delegated
2. In the context of modern conditions and complexity of situations, it is not possible for the legislature to envisage
in detail every possibility and make provisions for them. The legislature, therefore, has to delegate certain functions
provided it lays down legislative.

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3. If the power is conferred on the executive in a manner which is lawful and permissible, the delegation cannot be
held to be excessive merely on the ground that the legislature could have made more detailed provisions.

Test to be applied by Courts

In dealing with the challenge to the vires of any statute on the ground of excessive delegation it is necessary to
enquire whether the impugned delegation involved surrender of essential legislative function and whether the
legislature has left enunciation of policy and principle to the delegate. If the reply is in the affirmative, there is
excessive delegation but if it is in negative, the challenge must necessarily fail .A statute challenged on the ground
of excessive delegation must be subjected to two tests:
1.Whether it delegates essential legislative function; and
2.Whether the legislature has enunciated its policy and principle for the guidance of the executive.

POSITION IN INDIA.
The Supreme Court has made it clear that the excessive delegation is not permissible. The
doctrine of excessive delegation has played an important role in controlling the practice of
delegated legislation. Excessive delegation is taken as abdication of essential legislative function
by the legislature. The delegation must not be unguided and uncontrolled. If the delegation is
excessive, the Enabling Act or Parent Act will be unconstitutional and therefore void and the
delegated legislation made under such Enabling or Parent Act will also be unconstitutional and
void.

In the matter of In re: Delhi Laws ACT is a seminal case in the area of delegated legislation and majority of
judges did play a creative role in evolving doctrine of excessive delegation and was in view that: It is essential that
Parliament (and State Legislatures) should have power to delegate legislative power to the Executive. No doctrine
of Separation of Powers prevails in India.

The Indian Parliament working under a written constitution cannot claim an unlimited freedom to delegate
legislative power. One view, propounded by Fazl Ali, Das and Sastri, JJ., was to put the limit at
“effacement or abdication” by the Legislature which means that legislature could delegate to any extent it
likes as long as it retains its own legislative power. The other view propounded by majority was that legislature
ought not to delegate its “essential legislative power” to an outside agency.

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Mahajan J., took a stricter view, said, “Parliament has no power to delegate its essential
legislative functions to others, whether State legislature or executive authorities, except, of
course, functions which really in their true nature are ministerial.”

Mukerjee J., took the view that, it cannot be said that an unlimited right of delegation is inherent in the legislative
power itself and the legislature must retain in its own hands the essential legislative functions which consist in
declaring the legislative policy and laying down the standard which is to be enacted into a rule of law.

The Constitution confers a power and imposes a duty on the legislature to make laws.
It cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare state, it
must necessarily delegate the working out of details to suit various aspect of situation. But there is a danger inherent
in such delegation such as, it may not set down any standard for the guidance of the executive, it may confer
arbitrary power on the executive to change or modify the policy laid down by it, without reserving any control over
the subordinate legislation. It is for a Court to hold on a fair, generous and liberal construction of a impugned statute
whether a legislature exceeded such limit.

Excessive delegation as ‘Abdication’.

Abdication means abandonment of sovereignty. When the legislature does not legislate and entrusts that primary
function to the executive or to an outside agency, there is abdication of legislative power. Abdication may be partial
or total. The power to delegate is subject to the qualification that the legislature does not abdicate or efface itself by
setting up a parallel legislature.

But the delegation of legislative power need not necessarily amount to abdication or complete effacement. What
constitutes abdication and what class of cases are covered by that expression is always a question of fact and it
cannot be defined nor a rule of universal application can be laid down.

The legislature cannot part with its essential legislative function which consists in declaring its policy and making it
a binding rule of conduct. A surrender of this essential function would amount to abdication of legislative powers
in the eyes of law. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite
character as to amount of abdication.

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Operation of The Doctrine Of Excessive Delegation.
Powers and Duties of Courts.
The Founding Fathers of the Constitution have entrusted the power of legislation to the representatives of the
people so that the power may be exercised not only in the name of the people but also by the people speaking
through their representatives. The rule against excessive delegation thus flows from and is a necessary postulate of
the sovereignty of the people. At the same time, however, it also cannot be overlooked that in view of multifarious
activities of a modern welfare state, the legislature can hardly find time and expertise to enter into matters of detail.
Sub-ordinate legislation within a prescribed sphere is a practical necessity and pragmatic need of the day.
Delegation of law making power is the dynamo of modern government. If legislative policy is enunciated by the
legislature and a standard has been laid down, the Court will not interfere with the discretion to delegate non-
essential functions to the executive.

Court’s view on Excessive Delegation.

Challenge to the validity of enactments on the ground of delegated legislation often enough presents problems
which are not easy of solution. The recent history of judicial decisions however shows that, there is a considerable
divergence of opinion in the approach to the question dealing with such a challenge. Where the Legislature
provides and lays down principles underlying the provisions of a particular statute and also afford guidance for the
implementation of the said principles, it is open for the legislature to leave to actual implementation to its chosen
delegate.

Excessive Delegation and Constitutional objections.

Delegation of power to the executive is of two kinds i.e. Legislative and Executive. The grant of legislative power
is challenged on the ground that of excessive delegation whereas the grant of executive power may be challenged
on the ground of its alleged violation of the right to equality guaranteed by Art. 14 or violation of any rights
guaranteed under Art.19.The delegation of power is upheld once it is accordance to the policy and standards laid
down by the Courts.
Excessive delegation of legislative power can be assailed under Article 14 of the Constitution as being capable of
being used in a discriminatory manner. When the High Court Judges (Conditions of Service) Act 1954 as
amended in 1986 and 1988, which provided for revised pensions for judges, left the discretion to fix the dates on
which such amendments were to come in force to the state governments, it was held that conferment of such
power could act discriminatorily because every state government might fix a different date for that purpose thus

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making revised pensions applicable to the judges on different dates depending upon the state in which the High
Court was located.
The Supreme Court struck down the provisions of the Tamil Nadu Private Educational Institutions (Regulation)
Act 1966, both on ground of excessive delegation as well as violation of the Art. 14 of the Constitution as it did not
contain adequate guidelines to the executive for the exercise of the delegated legislative power.

Conclusion.
Entrustment of legislative power without laying down policy is inconsistent with the basic concept on which our
constitutional scheme is founded. Our Constitution-makers have entrusted the power to legislate to the elected
representatives of the people, so that the power is exercised not only in the name of the people, but by the people.
The rule against excessive delegation of legislative authority is a necessary postulate of the
sovereignty of the people. It is not claimed to be nor intended to be a panacea against the shortcomings of
public administration. Governance of the State in manner determined by the people through their representatives
being of the essence of our form of government, the plea that a substitute scheme for governance
through delegates may be more effective is destructive of our political structure.

*****
JUDICIAL CONTROL OF DELEGATED LEGISLATION.
Doctrine of Ultra Vires.
Meaning:
Ultra Vires means "beyond powers". If the subordinate legislative Authority goes beyond the
powers conferred by the enabling Act, such an exercise of power is Ultra Vires and void. This
applies to all authorities exercising Governmental functions including the subordinate legislative
bodies or Authorities which make rules, regulations, Bye laws, Orders, etc. The doctrine of Ultra
Vires was expounded by Dicey. According to him, the subordinate legislation may be declared
by the Courts as 'beyond the powers' of the Parent Act i.e., the enabling Act. This is the Judicial
control over subordinate legislation.

This is of two kinds:

i) Procedural Ultra Vires,
ii)Substantive Ultra Vires.

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i) Procedural Ultra Vires:
a) Publication is essential & mandatory. Hence, if there is no publication in the Offcial Gazzete
as required under the Act, the Subordinate Legislation becomes UltraVires.
b) When previous sanction for making the Rules etc. or where there is provision in the parent
Act, to follow a particular procedure, that must be followed.
c) When power is vested in one authority by the Parent Act, further delegation is Ultra Vires.
d) If consultative requirement, or, public enquiry is prescribed by the Parent Act, it must be
followed strictly and effectively. It should not be a sham consultation of affected parties. If the
procedural requirements are not complied with, the subordinate legislation will be void and Ultra
Vires. However, Courts have drawn a distinction between mandatory (imperative) provision,
and, a directory provision. The legislation is Ultra Vires; but if the provision is directory, then
substantial compliance is sufficient to make it valid.

1. Consultation of interest:
This helps to check possible misuse of power. The persons to be affected may participate in the
rule making process, when they are consulted. Generally the parent Act provides for such
consultation. The Consultation may be varied: It may be official consultation, e.g. Reserve Bank
being consulted in making rules under Banking Companies Act, or statutory Bodies e.g. Board
under Income Tax Act, or Advisory Body as Mine Board in Mines Act.

Consultation makes the process democratic to reach the people in full measure. Otherwise, it
may become bureaucratic. Sufficient opportunity should be given by the Government, with
necessary material. Consultation is mandatory (Banwarilal v. State of Bihar). Hence, without
consultation, it would be void.

2. Publication :
Publication of delegated legislation is an essential requisite; if not published, it would be void
and Ultra Vires. The reason is unlike legislation, where it is widely publicised, the delegated
legislation is made in the secret recesses of the chamber of the Government, affecting the life,
liberty and property of individuals. Hence, it is abhorrent to democratic notions. Hence, the

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courts have held that publication i.e., Official Gazette publication is the usual method should be
adopted.

In Narendra Kumar v. Union, the parliament had made the Essential Commodities Act. Section
3 of it provided that rules made under the Act should be published in the official Gazette. The
Central Government, made certain rules, but applied them to issue licenses to acquire non-
ferrous metals. The Supreme Court held that as there was no publication, it was void.

Hence, publication in the official Gazette or some other reasonable mode is a must. The Courts
distinguish whether this requirement is mandatory or directory. If directory, substantial
compliance is essential, otherwise the rule etc would be Ultra vires and void,

Other leading Cases:

1. Srinivasan v. State of Karnataka (1987).
2. Raza Buland Sugar Co. v. Rampur Municipality (1965).
3. Govindlal v. Agricultural Produce Market Committee (1975).

ii) Substantive Ultra Vires:

The Subordinate legislative body or Authority, should not go beyond the policy, principles,
purposes or standards prescribed in the Parent Act. It should also not go beyond the Constitution
of India.

(i) Parent Act & subordinate legislation should be constitutional

The basic requirement is that the parent Act should be constitutional; if not the Act will be Ultra
Vires, and so the rules etc. In Chintaman Rao v. State of M.P, the Parent Act prohibited
manufacture of bidis by agriculturists during certain seasons. The District Court could prohibit
such manufacture certain areas by issuing on order. Held, the Act itself was violative of Article
19(1) (g) of the Constitution and hence Ultra Vires.

The Second requirement is that the subordinate legislation should not be Ultra Vires the
Constitution.

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In Narendra Kumar v. Union (1960), the order issued under Section 3 of the Essential
Commodities Act 1955, was challenged, but not the Act. Held, the order should also be
constitutional, otherwise it would be void. The order was held void.

ii) Parent Act should not be violated. This is an essential requisite, and, the subordinate
legislation should not go beyond its power or authority defined in the parent Act. If it does, it
would be Ultra Vires.

In Mohammad Yasin v. Town Area Committee (1952), The Municipalities Act, had
empowered the town Area Committee to frame bye-laws to heavy fee for use of immovable
property of the Committee by traders. The Committee exceeded its authority and levied fee on
wholesale dealers, on any place within the limits of the committee. Held this was Ultra Vires as
it applied to any place.

iii) Retrospective effect:

In I.T.O. Alleppy v. Ponnose, the Govt. by a notification invested the Tahsildar to recover tax
with retrospective effect. Held this was Ultra Vires and void.

iv)Mala fides, unreasonableness:

If the rules orders etc made by the body or authority are malafides, or are unreasonable then they
would be quashed as Ultra Vires the parent Act. The Act made by the Parliament or State
legislature, cannot be questioned on the ground of mala fides, but the rule made by the
administrative authority may be challenged.

In Air India v. Nargesh Merza (Air Hostess Case 1981), that the regulations framed by Air
India for termination of a air-hostess on her first pregnancy was held by the Supreme Court as
unreasonable, arbitrary and hence void.

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Conditional Legislation
Meaning:
When the Legislature enacts a law and authorises the Executive authority to bring into force in
such areas or at such times as it decides or to extend the life of the Act, it is generally called
'Conditional Legislation’. This doctrine was invented by Privy Council, in R v. Burah (1878).
In 1869, the Indian Legislature passed an Act under which it removed Gora Hills from the
system of Law & Courts prevailing therein and vested the administration of justice in some
officers. These officers were to be appointed by the Lt. Governor of Bengal. It also empowered
the Lt. Governor to extend to Gora Hills any other law in force in other places under his control.
The Lt. Governor was allowed to fix a date for the commencement of the Act.

The Privy Council held the Act as valid. The reason was that the Act had exercised its judgment
regarding the place, persons, laws and powers etc., and the Indian legislature having plenary
powers had legislated conditionally. Hence, fixing the date, extending the Act etc., was valid.
Burah and others were convicted as extension of law to them was held valid by the Privy
Council.

According to leading authorities Hart, and Cooley, in the United States, the doctrine is
applicable.
The Act or statute provides controls; it does not delegate its legislative powers. But it empowers
the executive to bring the Act into operation on fulfillment of certain conditions.

The Position in India is the same. The Supreme Court in Tulsipur Super Co. Ltd v. Area
Committee applied this doctrine. Under Sec. 3 of the U.P. Town Areas Act, 1914, the
Government issued a notification extending the limits of Tulsipur town to Shitalpur village. The
sugar factory in Shitalpur affected by it challenged this notification. The Court held that the Act
had provided the conditions and that extension was valid as delegated legislation. The other
cases are Inder Singh v. Rajasthan and State of Bombay. V. Narotham Das.

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3. Limited Scope:
In view of extended meaning of delegated legislation, the scope for conditional legislation is
very much limited and hardly has any significance today.

Judicial Control:
The administrative action is subject to substantive and procedural ultra vires concept and hence,
may be declared void by the High Courts and the Supreme Court.
i) When the acquisition of land was for the purposes of 'building a market', acquisition made for
car parking was held bad.
ii) The order of detention must be for the purpose specified in the Defence of India Act,
otherwise, the order is Ultra Vires. Similarly, procedures, if prescribed, become compulsory and
should be followed, or where the authority is to consult some specified body or Board, then
consultation is mandatory.

Cases:
1. Franklin v. Minister of the Town and Country Planning
A local inquiry was conducted in public, the objectors were heard in respect of the formation of
Stevenage (name of a town) area. Five months later in a speech, the Minister had said that he
would go ahead with his scheme. The Court held that after the report of the inquiry is submitted,
further steps taken are administrative and not judicial. Hence, Bias is no bar in administrative
action. There must be good faith and an intention to conform to law.

2. Gullapalli Nageswara Rao v. State of A.P. (II Phase)

The Minister for Transport, heard objections and finalised the scheme for Nationalization of bus
routes. Held, there was no violation of Bias.

*****

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LEGISLATIVE CONTROL OVER DELEGATED LEGISLATION.
Parliament has power to control the subordinate law making agency. In fact, Parliament has not
only the right but it is under a duty to see that it delegate, carries out what is entrusted to it. It is
for this reason that procedural safeguards are provided:

a) The primary condition is that it must be laid before the Parliament, for a prescribed time.
b) Scrutinising Committee must consider & approve & report to the Parliament.
c) Where affected persons or groups are to be consulted it is mandatory and must be consulted.
d) Publication of the Rules etc. in the Official Gazette is a must.

(i) Laying on the table of the Houses :

This brings to the knowledge of the Parliament, what the rules as framed by the executive are.
Further, the legislators get an opportunity to examine and propose changes, if need be.

The procedure in India is generally:-

i) Rules should be laid as soon as possible on the table of each House for 30 days
ii) Modification, may be made by each House if found necessary.
iii) Publication in Official Gazette.
According to the Supreme Court the publication is essential. (Harla v. State.)

(ii) Scrutiny Committee:

The Lok Sabha Committee on subordinate legislation and the Rajya Sabha Committee on
subordinate legislation in Parliament are charged with the duty to study and scrutinise all
subordinate legislation and report to the Houses whether the powers are properly exercised.These
two bodies act as watch-dogs which bark and arouse their master (House) from slumber
when they find that there is an invasion on legislative power. These two are evidently vigorous
and independent bodies, and, their working is very satisfactory, thus preventing usurpation of
power of Parliament.

*****

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PROCEDURAL CONTROL OVER DELEGATED LEGISLATION
(a) Prior consultation of interests likely to be affected by proposed delegated Legislation From
the citizen's post of view the must beneficial safeguard against the dangers of the misuse of
delegated Legislation is the development of a procedure to be followed by the delegates while
formulating rules and regulations. In England as in America the Legislature while delegating
powers abstains from laying down elaborate procedure to be followed by the delegates.

But certain acts do however provide for the consultation of interested bodies. and sometimes of
certain Advisory Committees which must be consulted before the formulation and application of
rules and regulations. This method has largely been developed by the administration independent
of statute or requirements. The object is to ensure the participation of affected interests so as to
avoid various possible hardships.

The method of consultation has the dual merits of providing as opportunity to the affected
interests to present their own case and to enable the administration to have a first-hand idea of
the problems and conditions of the field in which delegated legislation is being contemplated.

(b)Prior publicity of proposed rules and regulations Another method is antecedent publicity of
statutory rules to inform those likely to be affected by the proposed rules and regulations so as to
enable them to make representation for consideration of the rule-making authority. The rules of
Publication Act, 1893, S.I. provided for the use of this method. The Act provided that notice of
proposed 'statutory rules' is given and the representations of suggestions by interested bodies be
considered and acted upon if proper.

(c) Publication of Delegated Legislation - Adequate publicity of delegated legislation is

absolutely necessary to ensure that law may be ascertained with reasonable certainty by the
affected persons. Further the rules and regulations should not come as a surprise and should not
consequently bring hardships which would naturally result from such practice. If the law is not
known a person cannot regulate his affairs to avoid a conflict with them and to avoid losses. The
importance of these laws is realized in all countries and legislative enactments provide for
adequate publicity.

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ADMINISTRATIVE DIRECTION AND DELEGATED LEGISLATION.
It is the directions or instructions envisaged by the higher administrative authority to its lower
level administrative authority to apply its discretionary power. Additionally it includes
announcing what would be the policy decisions of the Government

The rules, orders u/ delegated legislation has got legal power; if any one violates those rules they
can be held responsible under law, further it can be executed; if any one is affected they can
approach the court of law for remedy (Writ of Mandamus). But in the case of the Administrative
direction: it does not have the power of law and one cannot be held responsible under law and no
remedy in court of law- once can approach the executive and not the judiciary. So, they are not
law or rules. If a rule controls the executive then it is administrative direction and if it controls
the common public then it is delegated legislation. The above statement is clearly explained by
the Supreme Court in: Raman and Raman V. State of Madras

Administrative Direction are binding?

Amratlal v. State of Gujarat (AIR 1972 Gujarat 260)
The Gujarat State Government has released a Gujarat Grant-in-Aid Code. According to this,
rules are made for the schools in the State receiving aid from the State. The Gujarat HC has
made this as an administrative direction also said that its an equitable right.

*****

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 UNIT – 3
PROCEDURAL FAIRNESS AND JUDICIAL REVIEW

Principles of Natural Justice.

'Natural Justice' is an expression of English Common Law having its origin in Jus natural (law of
Nature). It involves procedural requirement of fairness. In England, it was initially applied to the
Courts, but later projected from the judicial to the Administrative sphere. It is justice that is
simple and elementary, and fair play in action. In fact, ‘Arthasastra’ of Kautilya has a reference
to natural justice.

 The Principles of Natural Justice have come out from the need of man to protect himself
from the excesses of organized power man has always appealed to someone beyond his
own creation. Such someone is the God and His laws, divine law or natural law, to which
all temporal laws and actions must confirm.
 Natural Law is of the 'higher law of nature' or 'natural law'
 Natural Law does not mean the law of the nature or jungle where lion eats the lamb and
tiger eats the antelope but a law in which the lion and lamb lie down together and the
tiger frisks the antelope.
 Natural Law is another name for common-sense justice.
 Natural Laws are not codified and is based on natural ideals and values which are
universal.
 In the absence of any other law, the Principles of Natural Justice are followed.
 Earliest form of natural law can be seen in Roman philosophical expressions (Jus
Naturale). It is used interchangeably with Divine Law, and the common law of nations.
 The Principles of Natural Justice are considered the basic Human Rights because they
attempt to bring justice to the parties naturally.
 Giving reasoned decisions is a principle of Natural Justice.

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Calvin’s case

• In this English case, where the Law of morals was considered to be Natural Law. It was

made by God, it does not change and even the Parliament cannot distort the safeguard

provided by it and the Court has held that it is Law of All Laws.

Dr. Bentlay’s case

• The Law of God and the Law of Man enshrines the concept of natural justice and gives

the opportunity of hearing to both the sides or parties in a case. Before punishing Adam,

the God gave opportunity to him to explain his side.

In Ridge v. Baldwin (1964) the observance of natural justice was made applicable to the entire
range of administrative action. This was followed in India in State of Orissa v. Binapani;

A.K. Kraipak v.Union of India and Maneka Gandhi v. Union of India. The purpose of
Natural Justice is prevention of miscarriage of justice, and hence is applicable to administrative
enquiries. It was held that if there is no specific provision or rule to follow these principles,
before taking action against an individual, the Court would read into the provision the
requirement of natural justice.

Basic Pillars of Principles of Natural Justice

Two core points in the concept of principles of natural justice.
1. Nemo Debet Esse Judex In Propria Causa - No one should be made a judge in his own case,
or the rule against bias / Interest of Prejudice.
2. Audi Alteram Partem -This means 'hear the other party ' i.e., 'no one should be condemned
unheard'.

These two constitute the essence of Natural Justice. The Rule of law demands that these
principles should be followed. These apply in all cases where a quasi-judicial tribunal or an
administrative authority is determining the rights of the individuals.

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Nemo debet esse judex in propria Causa (No one should be a judge in his own cause.)
This is also named as RULE AGAINST BIAS.
 When a judge is authorised to decide a case through his power, leaving aside the
evidence(s) of the case getting influenced from other thing s or facts and deliver a verdict
is considered to be biased.
Rule against Bias: Based on 3 Maxims
(1) No man shall be a judge in his own cause.
(2) Justice should not only be done but manifestly and undoubtedly be seem to be done.
(3) Judges, like Caesar’s wife should be above suspicion. Rule Against Bias:
No man shall be a judge in his own cause
 Judge should be impartial and natural and must be free from bias.
 If the judge is subject to bias in favour of or against either party to the dispute, he is
disqualified to act as a judge and the proceedings will be vitiated (spoil or impair the
quality or efficiency of sth).
 Justice should not only be done but manifestly and undoubtedly be seem to be done
 Justice can never be seen if a man acts as a judge in his own cause or is himself interested
in its outcome
Leading cases:
1. Dr.Bonham's case (1610):
The leading case that projected this concept into prominence was Dr. Bonham's Case. The Royal
College of physicians was empowered to grant licence to practice medicine. Dr. Bonham did not
take out the licence. He was fined and imprisoned. He filed a suit for false imprisonment.
Chief Justice Coke decided in favor of Dr. Bonham, and held that the 'College could not be a
judge, in its own cause'. The decision of the College was quashed. Half of the fine so collected
was to go to the college itself. Hence Bias was complete. Absence of Bias is the essence of this
doctrine. 'Judges like Caesar's wife should be above suspicion'. Even a remote interest or Bias is
enough.

2. Dimes v. Grand Junction Canal (1852)

There was a dispute between the land owner and a Company. The case was heard and decided in
favour of the Company by the Vice-Chancellor. On appeal, the Lord Chancellor (Lord

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Cottonham) heard and confirmed the decision. (Lord Cottonham retired). His decision was
challenged before the House of Lords on the ground that Lord Cottonham was a shareholder of
that company. Held, no one can suppose that Lord Cottonham could be, in the remotest degree,
influenced by the 'interest' he had in this Company. But, no one should be a judge in his own
cause is sacred. Hence, his decision was quashed. This is called legal interest i.e., the judge is
in such a position that bias must be presumed.

As Lord Hewart, aptly puts 'Justice should not only be done, but should manifestly and
undoubtedly be seen to be done'.

R v. Deal Justices ex parte Curling

The Magistrate was not declared disqualified to try a case of cruelty to an animal on the ground
that he was a member of Royal Society for the Prevention of Cruelty to Animals as this did not
prove a real likelihood of bias.

Indian Case Laws

G. Sarna v. University of Lucknow
If a person had waived his right to challenge a selection on the ground of bias, he cannot
subsequently challenge the same.

Jeejeebhoy v. Asst. Collector, Thana

The CJ, reconstituted the bench when it was found that one of the members of the bench was a
member of co-operative society for which the land in dispute had been acquired.

A.K. Kraipak v. UOI

The acting Conservator of Forests was a member of the selection board and was also a candidate
for the selection to the All India Cadre of Forest Service. He did not take part in the deliberations
of board when his name was considered and approved, but he did participated when the names of
the rivals were considered for selection. And he did participate in the deliberations of the board
while preparing list of selected candidates in order of preference. The SC, held that there was a

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real likelihood of bias for the mere presence of candidate on the selection board may adversely
influence the judgment of other members. The actual proof of bias is not necessary.

Kirti Deshmanker v. UOI

When a personal relation of a person was directly in a position to influence the decision, it was
held that there was reasonable likelihood of bias.

Cantonment Executive Officer v. Vijay D. Wani

The members of a committee who conducted a disciplinary inquiry were also the members of the
Cantonment Board where the inquiry report was to be considered i.e., a decision about the guilt
of the respondent was to be adjudged. Held, reasonable bias.

Hari v. Dy. Commissioner of Police

An internment order was challenged on ground that since the police department which initiated
the proceeding and the Department which heard and decided the case were the same, the
element of departmental bias vitiated administrative action. The Court held, no bias as the
functions discharged by two different officers.

RC Cooper v. UOI
One of the SC judges in the bench was having shares in a nationalized bank involved in the case.
Despite that the enquiry was done and given verdict. Before the enquiry of the case, the
information regarding the shares were shared to the petitioners and as their counsel did not have
any objection then only the enquiry was started. So, no bias.

3. Bias may be of three kinds:

(i) Pecuniary Bias
(ii) Personal Bias
(iii) Official Bias

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(i) Pecuniary Bias: Judge may have bias - in the subject matter or with litigation.(Legal
interest). “There is a presumption that any financial interest however small in the matter in
dispute disqualifies a person from adjudicating” - Halsbury’s Laws of England.
1. Dr.Bonham's case.
2. Dimes Case
3. Gullapalli Nageswara Rao v. A.P. Road Transport Corporation. (I Phase)
In this case, the scheme to nationalise the bus routes was made by the Secretary to the Road
Transport Dept., He himself heard the objection of the fleet owners under the Motor Vehicles
Act, and recommended for nationalisation of routes. As Secretary, he was interested in the
subject matter and biased and hence disqualified to hear the Supreme Court held. The Order was
quashed.

Vishakapatanam Motor Transport Ltd. V. Bangaruraju

The RTO authority presided over by the District Collector – granted a permit to a co-operative
society of which the Collector was the president – court set aside the order – contrary to PNJ

R v. Mulvihill
The test of pecuniary interest will not apply to criminal cases – accused was convicted for
committing robbery in a bank in which the trial judge was having 1650 shares – accused
contended that the trial was vitiated.

It was observed that there are two types of cases of Interest.

There may be cases in the outcome of the case. In these cases, the Court applies very strictly the
maxim that ‘nobody may be a judge in his own cause’ and the decisions which are made in those
circumstances are voidable because bias is conclusively presumed’. There may be cases in
which there is no direct pecuniary interest in the outcome of the case, but the surrounding
circumstances give rise to a reasonable suspicion that justice is not being done because an
adjudicator has an interest which falls short of being direct pecuniary interest.

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(ii) Personal Bias:
This may be due to relationship, personal friendship, professional or employment relationship or
personal hostility. The judges hould be free from certain obvious and crude forms of interest.

• Personal bias occurs when there exists some relationship between the deciding authority
and the parties which incline him favourably or unfavourably on the side of one of the
parties before him.
• Personal bias occurs when there exists some relationship between the deciding authority
and the parties which incline him favourably or unfavourably on the side of one of the
parties before him.

Cottle v. Cottle:
W had filed a divorce petition against her husband H. The chairman of the Bench was the friend
of W’s family. W told H that she would win the case. The order was in her favour. The Court
quashed the order of the Chairman.

Maneklal v. Premchand:
A filed a complaint against M, his advocate for misconduct. The Disciplinary committee was
appointed which conducted an enquiry. The Chairman had represented "A" in a case. The
Supreme Court held that the enquiry was vitiated.

There is substantial likelihood of bias in these cases. The bias here depends not on what actually
was done but upon what might appear to be done. (Lord Hewart).The test is a reasonable
apprehension based on factual situation. Whimsical, capricious or vague opinions are not
standard to judge bias. "Justice in fact should be done" according to Lord Hewart.

RC Chandel v. High Court of M.P.

SC upheld compulsory retirement of a District and Sessions Judge of MP – “ A judge is expected
not to be influenced by any external pressure and he is also supposed to not exert any influence
on others in any administrative or judicial matter”

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The credibility of the judicial system is dependent upon the judges who man it. For a democracy
to thrive …. Every judge must discharge his judicial functions with integrity, impartiality and
intellectual honesty. Justice R.M. Lodha cautioned that, “A judge must be a person of
impeccable integrity and unimpeachable independence” for the survival of democracy and rule
of law.

Meenglas Tea Estate v. Workman

A manager conducted an inquiry against a workman for the allegation that he had beaten the
manager. It was held that the inquiry was vitiated because of personal bias.

Pratap Singh v. State of Punjab

In this case the appeal was made by a doctor and he was removed from service by the
intervention of the CM of the State, this was proved in the Court. The SC held that the
termination of service is void.

AK Kraipak v. UOI
In this case, one Kraipak and others were Gazetted Officer of State of J&K and they applied for
the post of Indian Forest Service u/ The Indian Administrative Act, 1951. This recruitment
process was the work of UPSC. One Naquishbund, was the ex-officio member of UPSC involved
in the selection process of candidates and he was also a candidate for the IFS. Naquisbund got
selected with others.
The SC held that the its personal bias and against the PNJ. It is against all canons of justice to
make a man judge in his own cause.

State of UP v. Mohd. Nooh

In this case a Head Constable was charged with some offence and the enquiry was done headed
by the Commissioner of Police. The Commissioner made the Asst. Commissioner head the
enquiry and gave evidence in the case.. The SC held, its personal bias and the whole enquiry was
void.

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Other leading Cases:
1. Institute of Chartered Accountants v. Ratna (1986)
2. Krishna Bus Service v. State of Haryana.
3. R. v. Sutherland
4. R. v. Sussex Justices.
5. Hindustan Petroleum v. Yashwant (1991)

(iii) Official Bias / Subject Matter Bias

The Judge or person should not be a witness in the matter that he is deciding.

Muralidhar v. Kadam Singh

In this case the Head of the Election Tribunal’s wife was a candidate in a election who defeated
the petitioner in the election. When there was a case on this issue then the SC held that there was
no official bias. The situations where the deciding officer is directly or indirectly in the subject
matter of the case.

Gullapalli Nageswara Rao v. APSRTC (I)

In this case. It was held that violation of NJ where the Secretary was interested in the subject
matter.

Gullapalli Nageswara Rao v. APSRTC (II)

Scheme initiated by Secretary and hearing was given by the CM – valid proceedings

Tata Cellular v. UOI

Tender for giving license for operating cellular mobile in 4 metros – Director General of
Telecom is the technical member of evaluation company – his presence is required in the
evaluation committee – his son working in one of the company has applied for license –
committee issued license to that company – bias alleged – SC held that there is Remote bias – it
is not accepted – doctrine of necessity applied, as no substitution is possible.

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Test of Real Likelihood of Bias:
Manak Lal v. Dr. Prem Chand
Manak Lal was lawyer practicing in Rajasthan HC. It was alleged by Prem Chand that he has
committed Professional misconduct and complained to Bar Council. A tribunal with a Chairman
and two members were made to enquire the case and Manak Lal was removed from the
Advocate rolls for professional misconduct. It was alleged by Manak lal that the Chairman of the
tribunal was initially an advocate for the said Prem Chand. Alleged Personal bias. The Court
held that there was no personal bias as he would not remember a case before 7 years. No real
likelihood of bias but the Chairman of the Tribunal was disqualified to be in his post.

Judicial Obstinacy (Stubborness) / Judicial Bias

Justice P.D. Dinakaran v. Hon’ble Judges Inquiry Committee
The SC held that in India the Courts have held that, the test of “real likelihood of bias” is to be
applied, considering whether a fair minded and informed person, apprised of all the facts, would
have a serious apprehension of bias.

• “Real likelihood of bias” – Real likelihood of bias depends not upon what actually was
done but upon what might appear to be done (Lord Hewart)

State of U.P. v. Mohammad Nooh.

The Superintendent of Police got himself examined as a prosecution witness at a proceeding
against a constable, in which the S.P., was the enquiring officer. Held, violation of natural justice
and therefore the proceedings were quashed.

Raja Ram v. The State:

A Superintendent of Police dismissed a Constable, on the ground that the Constable had sent a
telegram against him to the higher officials. This was quashed as the S.P. was a judge in his own
cause.

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Mohapatra v. State of Orissa:
A Committee had been setup by the Government for prescribing text books for educational
Institutions. Some were authors of books and they had recommended their own books. Held,
Bias.

Audi Alteram Partem: RIGHT TO BE HEARD.

'No man should be condemned unheard'. This demands a fair hearing because, the persons
must know the case he has to meet and he must have adequate opportunity to meet it. This means
any authority or body empowered to decide the question of legal rights, of persons should follow
this rule. Otherwise, the decision would be quashed as violative of Audi alteram partem.

India:
It’s the first principle of the civilised jurisprudence. The Position in India is the same as in U.K.
"fair hearing" is a must and the person should not be "hit below the belt" (Krishna Iyer J). "Oral
hearing" is the content of fair play and hence should be provided to the affected person. Full
opportunity should be given. No material or evidence should be used against the affected person
without giving on opportunity to him to defend.

 A person facing the charge must be given an opportunity to be heard, before any decision
is taken against him.
 The laws of God and man both give the party an opportunity to defend himself. Even
God did not pass a sentence upon Adam before he was called upon to make his defence.
(Cooper V. Wandsworth Board of Works)
 Art 14 – Right to Equality – Maneka Gandhi case – any action which is arbitrary is a
violation of quality clause.
 Art. 19 – reasonableness – procedural reasonableness means right of fair hearing
 Art. 21 – ‘ procedure established by law’ – a procedure cannot be called fair procedure
which denies a right to fair hearing
 Art. 22 ; Art. 32 & 226; Art. 227
 Art. 311(2) – right to notice and reasonable opportunity as a safeguard against arbitrary
dismissal or removal from service.

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In State of Orissa v. Dr. Binapani Dei, the petitioner had been compulsorily retired on the basis
that she had attained 55 years of age. On the facts of the case, the Supreme Court held that the
order was bad as no opportunity had been given. It held that even if the order was administrative
in character, it should follow the principles of natural justice when the order involved civil
consequences. If the statute or rules are silent, the courts read into it the principles of natural
justice, as a "must", to be followed, by the Authorities, the Court said.

Board of High School v. Ghaneshyam.

The Respondent were debarred from taking next exam as penalty for using unfair means in the
Exam. The Committee gave no opportunity. Held, as the nature of the Committee order was
quasi-judicial, it should have followed the Principles of Natural Justice. As there was no hearing,
the decision of the Committee was quashed.

Olga Tellis v. Bombay Municipal Corporation (1985) where unauthorized slum dwellers were
thrown out by the Corporation, the Corporation contended that there was no provision to give
notice. Supreme Court rejected and said that the provision was not a command to the
corporation, "not to issue notice". The discretion was held bad.

Maneka Gandhi v. Union (1978) where the passport of petitioner had been impounded by the
Govt. of India "in public interest". No opportunity had been given to her before impounding the
passport. Held, this was violative of the right of hearing and held ultra vires. Her Fundamental
right to go abroad under Art. 21 had been affected, without hearing.

Srilekha Vidyarthi v. State of U.P. (1991) where the State Government issued a circular
terminating all the Government Counsels (Pleaders). They could be terminated at any time,
without assigning any cause. The Supreme Court held that the circular was arbitrary and against
public policy and hence void.

Board of High School v. Ku. Chitra (1970). C had taken the examination. The Board later
cancelled her exam, on the ground that she had shortage of attendance. The Board had given no

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hearing. The Supreme Court held that there was violation of ‘audi alterm partem’ and hence the
cancellation was void.

Audi Alteram Partem: International Dimension

 Art. 10 of Universal Declaration of Human Rights:
Everyone is entitled in full equality to a fair and Public Hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against
him.

 European Convention on Human Rights and Fundamental Freedoms, 1950

Art. 16(1) :“ In the determination of his civil right and obligations or any criminal charge agaisnt
him, everyone is entitled to a fair and public hearing within a reasonable time by independent
and impartial tribunal established by law”.

Contents of the Concept:

i) Notice:
Notice of place, time and the proposition must be given. It must be sufficient clear, specific,
unambiguous and understandable by the concerned person. There should be sufficient time to
make representation.

ii) Fair hearing:

Adequate opportunity must be provided for an oral hearing. Documentary and oral evidence are
to be considered, cross-examination must be allowed.

iii) Evidence is to be collected in the presence of both parties.

iv) He who hears must decide is a rule though not essential.
v) There should be no malafides or vindictive tendency on the part of the presiding Officer.
vi) Reasoned Decisions or Speaking orders should be made giving out reasons for the
findings decision.
 Speaking order means an order which contains the reasons for the decisions.

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  Giving reasons in support of an order is considered to be a third principle of natural
justice.
 The main advantages of reasoned decision are:
 The party aggrieved will get an opportunity to raise a contention before the appellate
authority or revisional court that the reasons which persuaded the authority to reject the
case is erroneous.
 It minimize chances of arbitrariness and ensures fairness in the decision making process.
 It introduces clarity in the decisions.

Audi Alteram Partem: Notice

 Hearing starts with the notice by the authority concerned to the affected person.
 Proceeding without notice – violate PNJ – void ab initio.
 Notice – statutory requirement – given in a manner provided by the statute.
L.P. Singh V. Board of Governors, M.A.C.T. – gross violence between students – notice could
not be served on them because they had absconded – action of the authority was held to be valid
– as a notice could not be served on the students on account of their own fault.

R v. University of Cambridge – University deprived Dr. Bentley’s degree for his misconduct –
without giving notice and opportunity of hearing – decision of University is null and void.
 Notice must be clear, specific and unambiguous and the charges should not be vague and
uncertain

Canara Bank v. Dabaris Das

 Notice must give sufficient time to the person concerned

Audi Alteram Partem: Fair Hearing

The Election Commission cancelled the poll without conducting a hearing with the candidates -
should be heard before passing the order.

Mohinder Singh v. CEC

• Both side should be heard before passing the order.

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Audi Alteram Partem: Disclosure of Evidence
If the evidence is used without disclosing to the affected party, it will be against the rule of fair
hearing

State of Orissa v. Binapani De

It was not necessary to show the report of enquiry committee to the affected persons – whether
the report of enquiry committee should be furnished or not depends in every individual case on
merits of the case.

Keshav Mill Co. V. UOI

All the evidence which the authority wishes to use against the party, should be placed before the
party for his comment and rebuttal.

Audi Alteram Partem: Cross Examination

Central Bank of India v. Karunamoy
Parties must get an opportunity to rebut the evidence or material in the disciplinary proceedings
initiated by the Govt against the civil servants, the right to cross examination is included in the
rule of hearing.

Hira Nath Mishra v. Rajendra Medical College

Male students were charges off indecent behavior towards girl students – refusal to allow the
accused male students to cross examine the girl students was upheld – not treated as violation of
Natural Justice – allowing the accused to cross examination would have been more embarassing
for the girl students and refusal was necessary for protecting them.

Audi Alteram Partem: One Who Decide Must Hear

Gullapalli Nageswara Rao v. APSRTC
‘P’ owner of a motor transport – Govt. published a scheme for nationalisation of motor transport
in the State – invite objections – ‘P’ filed objections – Secretary of the transport department
received and gave a personal hearing to the objections – scheme was approved by the CM – held
that there is violation of NJ- Secretary who has initiated the scheme has also has heard the

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objections (not a fair hearing) – hearing was held before one person and another gave the final
decision (CM). Scheme initiated by Secretary and hearing was given by the minister – valid
proceedings.

Audi Alteram Partem: Right of Counsel

Krishna Chandra v. UOI
Denial of legal representation will amount to violation of NJ, because in such condition the party
may not be able to understand the question of law effectively.

The Board of Trustees, Port of Bombay v. Dalip Kumar

Illiterate persons will not be able to plead the case as effectively as a legal representative of
counsel may represent fairly watching the interest of the affected party.

Mohinder Singh v. Election Commission

Not a part of natural justice and cannot be claimed as of right.

MH Hoskot v. State of Maharashtra

Free legal aid to the poor is an essential element of reasonable, fair and just procedure and a
procedure which failed to provide for free legal service to the poor and needy persons cannot be
referred as reasonable, fair and just and thereby it would be violative of Art. 21

ii) Leading cases:U.K.

1. Dr. Bentley's Case: (1723)
This rule got into prominence with Dr. Bentley's case Dr.Bentley was a professor of great
eminence. A process was sent to him by the Vice Chancellor of Cambridge University. He
ignored it and remarked that the Vice Chancellor had acted like a fool. The University, deprived
him of his degrees. The case was nullified by the Court on the ground that Dr. Bentley was not
heard. The judge Fortescue said '..."Even God himself did not pass sentence upon Adam,
before he was called upon to make a defence". Hence, opportunity of being heard is the first
rule of civilized jurisprudence as developed by Men and God, and "Right of hearing" is sine qua
non.

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2. Ridge v. Baldwin (1964)
A Chief Constable was prosecuted for obstructing justice, but was acquitted by the court. The
judge passed strictures against the accused in the course of his judgment. The 'Watch Committee'
based on the decision of the Court and the strictures, passed by the Judge, dismissed, the Chief
Constable. When this was challenged, the House of Lords held that as no opportunity was given,
there was violation of audi alterem partem, Hence, the dismissal order was quashed.

3. Errington v. Minister of Health (Jarrow Case)

Objection to a 'demolition and clearing' order were received at a public enquiry and a report was
submitted. Later, the Inspector visited the place again, discussed and collected further evidence
from the officials of Jarrow Corporation, behind the back of the objectors. The Court held that
hearing one side in the absence of the other was violative of Natural Justice and the order of the
Minister was quashed, as it was based on evidence collected without hearing the affected
persons.

4. Cooper v. Wandsworth Board (1863)

The Act had not stated that notice should be given before taking action to pull down a house.
Coopers House was pulled down even without hearing him. The contention that this was an
administrative act and no notice called for was rejected by the Court. The Court said that it
would supply the omission. Held, hearing was a must. The Court ordered for the payment of
compensation.

5. Local Board v. Alridge

The Council issued an order to close down the house which was unfit for human habitation. A
public enquiry was held, but the owner did not attend. Later he complained that there was no fair
hearing. Held the plea of the owner was bad. Giving opportunity was essential. Alridge by not
appearing, had waived his right.

6. Spackman's Case
The Medical Council struck off Dr. Alridge’s name on the ground that the divorce Court had
found Dr. Alridge guilty of adultery with a woman professionally. The Council had not

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conducted a 'due inquiry' before removing Dr. Alridge's name. The House of Lords, issued a
Certiorari to quash the council's decision.

7. Bagg's Case(1615)
James Bagg condemned the Mayor of Plymouth and said 'You are a knave, I will crack your
neck" etc. For his unbecoming conduct, he was deprived of his voting right. Held, as there was
no "hearing", the order was bad and was quashed.

iii) Position in the United States:

The Administrative Procedure Act 1946 has provided that the adjudicatory action to be valid
should have a hearing where each party is given the opportunity to know the claims of the
opponent, to hear the evidence, to cross-examine the witnesses, to make arguments etc. This is
the requirement of the due process clause of the Fifth Amendment of the Constitution.

Cases where hearing was not required:

1. In case of mass copying, in Exams, the courts have held that hearing was not essential.
2. Hira Nath v. Rajendra Medical College: Some male students had entered nakedly into a
girl's hostel compound in the night. 36 lady students reported and on this basis, the male students
were charged. The Committee told the charges to them and held them guilty. The male students
were expelled from the college. No hearing was allowed. When challenged, the Supreme Court
held that looking to the facts and circumstances, hearing and cross exam, of girl students etc. was
not feasible. The order of expulsion was held valid.

Scope:-1. The general rule is that the body or authority should make a speaking order, recording
reasons in support of the decision taken by it. (M.P. Industries v. Union). This ensures fairness,
and minimises arbitrariness. As per the Supreme Court (per Bhagavati J), in Maneka Gandhi's
case, recording reasons in support of the order etc is a basic requirement of audi alteram partem.
Hence, impounding of passport was held bad. Sometimes, requiring reasons for the decision is
called the third principle of Natural Justice. This was held so in Raipur development
Authority v.Chakamal.

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If relevant grounds are not disclosed, the appellate court will have no material to test whether
the order was just. Appellate authority or court should judge the validity, on the basis of reasons
recorded in the order. In Padfield v. Minister, the minister had the power to refer complaints to
the committee. He gave detailed reasons for not referring to committee. When this was
challenged, the House of Lordsheld that the order was questionable whether he had given
reasons or not. There were no| good reasons and hence the order was quashed.

The Courts in India, have applied the same high standards. In Maneka Gandhi's case, not
disclosing the grounds for impounding passport was held to be subject to judicial scrutiny. It held
"Law cannot permit the exercise of power to keep the reasons undisclosed, if the sole reason for
doing so, is to keep the reasons away from judicial scrutiny".

EXCEPTIONS TO THE PRINCIPLES OF NATURAL JUSTICE.

 The need for notice and hearing is excluded in exceptional cases of emergency in which
prompt, preventive or remedial action is required.
Mohinder Singh Gill v Chief Election Commissioner
 If to condemn unheard is wrong, it is wrong except where it is overborne by dire social
necessity.
 Exclusion in emergency.
 Exclusion in cases of confidentiality
 Exclusion in cases of fairness
 Exclusion in case of purely administrative matters
 Exclusion based on impracticability
 Exclusion in cases of interim preventive actions
 Exclusion in cases of legislative action
 Where right of no person is infringed
 Exclusion in case of Statutory Exception or Necessity
 Exclusion in case of contractual arrangement
 Exclusion in case of government policy decision

BALCO Employees Union v. UOI

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While taking policy decisions relating to economic matters, the Govt was not bound to observe
Natural Justice.

Effects of Breach Of Natural Justice.

 A decision rendered in violation of the rule against bias is merely voidable and not void. The
aggrieved party may waive his right to avoid the decision.
 But any action in violation of the audi alteram partem rule is completely void and of no
value.
*****
POST DECISIONAL HEARING.
Introduction.
Pre-decisional hearing is a hearing managed before making a choice or sanctioning an order.
Post-decisional hearing, as opposed to its counterpart, is a hearing given by the adjudicating
authority subsequent to making a choice or a decision.

As a general rule, a hearing should be afforded before a decision is taken by an authority. In the
leading case law Ridge v. Baldwin which is sometimes referred as the be all and end all of
Natural Justice, a Constable was accused of conspiracy followed by the prosecution by the
authorities but in the end he was held not guilty and was acquitted of blame. While the judge was
deciding the matter, certain remarks were made by the judge against the character of the
Constable based on which he was expelled from his service. The Court of Appeal held that the
committee which had expelled the Constable from his job as a result of the remarks made by the
judge against his character, was exercising Administrative and Judicial or Quasi-Judicial power
and therefore the Principles of Natural Justice did not fit here. Soon, this decision was reversed
by the House of Lords by a 4:1 majority and the order of dismissal was therefore, not upheld.

Post-Decisional Hearing.
The principle of the post-decisional hearing was propounded by the Supreme Court in Maneka
Gandhi v. Union of lndia. For this situation, the Supreme Court set out the rule that if in the
interest of the general public, quick action was fundamental and it is impractical to manage the
cost of a hearing before the decision, it ought to be managed after the decision. The passport of

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the petitioner who also happened to be a journalist was seized by the Government of India in
light of a legitimate concern for public wellbeing.
The petitioner was not given any chance before making the impugned move. At the point when
the legitimacy of the impoundment request was checked, the Government battled that the use of
the audi alteram partem rule would have gone against the very reason for seizing the passport.
Despite the fact that the Supreme Court dismissed the conflict, it acknowledged the principle of
post-decisional hearing in instances of outstanding nature. lt set out the recommendation that
wherein an emergent circumstance, requiring prompt activity, it is not possible to give prior
notice of hearing the preliminary action should be soon followed by a full remedial hearing.

A similar methodology was employed by the Supreme Court in Swadeshi Cotton Mills v.
Union of lndia where a void administrative choice was approved by post-decisional hearing. An
order assuming control over the administration of an organization by the Government without
earlier notice or hearing was held to be bad as it abused the audi alteram partem rule. Be that as it
may, the Court approved the impugned order on the grounds that the Government had consented
to give post-decisional hearing.

In Liberty Oil Mills v. Union of lndia, a request for examination was tested on the ground of
contravention with the principles of natural justice. The Supreme Court saw that maybe that the
chance to be heard may not be pre-decisional, it might essentially be post-decisional where the
danger to be averted is imminent, or the action to be taken can brook no delay.

In Shepherd v. Union of India, a request was issued to amalgamate certain banks with some
Nationalized Banks. Certain representatives of Private Banks were prohibited from working in
the Nationalized Banks. Thus, their service was ended without allowing them a chance to be
heard. Dismissing the proposition for post-amalgamation hearing, the Supreme Court felt that,
“there was no reason to think about a post-decisional hearing.”

The authority who sets out on a post-decisional hearing will ordinarily continue with a shut mind
and there is not really any possibility of getting a proper consideration of the representation at
such post-decisional hearing.” In Bari Doab Bank V. Union of lndia, the legislature passed the

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request for bank under Banking Regulations Act, 1949 of the petitioner Bank. It was held by the
Supreme Court that applicants were not qualified for pre-decisional hearing before passing a
request as post-decisional at the phase of filing issues with the draft plan would be adequate.

The teaching of post-decisional hearing has been given an exceptionally legitimate exposition in
Charan Lal v. Union of lndia, which is a case identifying with the Bhopal Gas Disaster
(Processing of Claims) Act, 1985. The Supreme Court held that a general rule unique in relation
to an absolute rule applying consistently is that where the statute does not reject the rule of pre-
decisional hearing but rather ponders over post-decisional hearing which adds up to full review
of the benefits of original order, at that point such a resolution would be interpreted so that it bars
audi alteram partem rule at the phase of pre-decisional hearing. On the off chance that the rule is
quiet on the purpose of giving pre-decisional hearing, at that point administrative activity after
post-decisional hearing is legitimate.

Conclusion
The application of this doctrine does not come with a strait jacketed formula but is rather based
on the facts and the situation of the case. In the event where pre-decisional hearing cannot be
applied, post-decisional hearing can come to the rescue.
*****
JUDICIAL REVIEW: MEANING AND DEFINITION.
 Judicial Review refers to the power of the judiciary to interpret the constitution and to
declare any such law or order of the legislature and executive void, if it finds them in
conflict the Constitution of India.
 The Constitution of India is the supreme law of the land. The Supreme Court of India has
the supreme responsibility of interpreting and protecting it. It also acts as the guardian-
protector of the Fundamental Rights of the people. For this purpose, the Supreme Court
exercises the power of determining the constitutional validity of all laws.
 It has the power to reject any law or any of its part which is found to be unconstitutional.
This power of the Supreme Court is called the Judicial Review power. State High Courts
also exercise this power but their judgments can be rejected or modified or upheld by the
Supreme Court.

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  Judicial Review refers to the power of the judiciary to interpret the constitution and to
declare any such law or order of the legislature and executive void, if it finds them in
conflict the Constitution of India.
Judicial Review is the power of the Judiciary by which:
(i) The court reviews the laws and rules of the legislature and executive in cases that come before
them; in litigation cases.
(ii) The court determines the constitutional validity of the laws and rules of the government; and
(iii) The court rejects that law or any of its part which is found to be unconstitutional or against
the Constitution.

Features of Judicial Review in India.

1. Judicial Review Power is used by both the Supreme Court and High Courts:
Both the Supreme Court and High Courts exercise the power of Judicial Review. But the final
power to determine the constitutional validity of any law is in the hands of the Supreme Court of
India.

2. Judicial Review of both Central and State Laws:

Judicial Review can be conducted in respect of all Central and State laws, the orders and
ordinances of the executives and constitutional amendments.

3. Limitations:
Judicial Review cannot be conducted in respect of the laws incorporated in the 9th Schedule of
the Constitution. It covers laws and not political issues.

4. Judicial Review applies only to the questions of law. It cannot be exercised in respect of
political issues.

5. Judicial Review is not automatic:

The Supreme Court does not use the power of judicial review of its own. It can use it only when
any law or rule is specifically challenged before it or when during the course of hearing a case
the validity of any law is challenged before it.

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6. Decisions’ in Judicial Review Cases:
The Supreme Court can decide:
(i) The law is constitutionally valid. In this case the law continues to operate as before, or
(ii) The law is constitutionally invalid. In this case the law ceases to operate with effect from the
date of the judgment.
(iii) Only some parts or a part of the law is invalid.
In this case only invalid parts or part becomes non-operative and other parts continue to remain
in operation. However, if the invalidated parts/part is so vital to the law that other parts cannot
operate without it, then the whole of the law gets rejected.

7. Judicial Review Decision gets implemented from the date of Judgment:

When a law gets rejected as unconstitutional it ceases to operate from the date of the judgment.
All activities performed on the basis of the law before the date of the judgment declaring it
invalid, continue to remain valid.

8. Principle of Procedure established by Law:

Judicial Review in India is governed by the principle: ‘Procedure Established by law’. Under it
the court conducts one test, i.e., whether the law has been made in accordance with the powers
granted by the Constitution to the law-making body and follows the prescribed procedure or not.
It gets rejected when it is held to be violative of procedure established by law.

9. Clarification of Provisions which a rejected law violates:

While declaring a law unconstitutional, the Supreme Court has to cite the provisions of the
constitution which it violates. The court has to clearly establish the invalidity of the concerned
law or any of its part.

Critical Evaluation of Judicial Review.

Points of criticism:
1. Undemocratic:
The critics describe Judicial Review as an undemocratic system. It empowers the court to decide
the fate of the laws passed by the legislature, which represent the sovereign, will of the people.

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2. Lack of Clarity:
The Constitution of India does not clearly describe the system of Judicial Review. It rests upon
the basis of several articles of the Constitution.

3. Source of from Administrative Problems:

When a law is struck down by the Supreme Court as unconstitutional, the decision becomes
effective from the date on which the judgment is delivered. Now a law can face Judicial Review
only when a question of its constitutionality arises in any case being heard by the Supreme
Court. Such a case can come before the Supreme Court after 5 or 10 or more years after the
enforcement of that law. As such when the Court rejects it as unconstitutional, it creates
administrative problems. A Judicial Review decision can create more problems than it solves.

4. Reactionary:
Several critics regard the Judicial Review system as a reactionary system. They hold that while
determining the constitutional validity of a law, the Supreme Court often adopts a legalistic and
conservative approach. It can reject progressive laws enacted by the legislature.

5. Delaying System:
Judicial Review is a source of delay and inefficiency. The people in general and the law-
enforcing agencies in particular sometimes decide to go slow or keep their fingers crossed in
respect of the implementation of a law.
They prefer to wait and let the Supreme Court first decide its constitutional validity in a case that
may come before it at any time.

6. Tends to make the Parliament less responsible:

The critics further argue that the Judicial Review can make the Parliament irresponsible as it can
decide to depend upon the Supreme Court for determining the constitutionality/ reasonableness
of a law passed by it.

7. Fear of Judicial Tyranny*:

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A bench (3 or 5 or 9 judges) of the Supreme Court hears a judicial review case. It gives a
decision by a simple majority. Very often, the fate of a law is determined by the majority of a
single judge. In this way a single judge’s reasoning can determine the fate of a law which had
been passed by a majority of the elected representatives of the sovereign people.
* cruel, unreasonable, or arbitrary use of power or control.
8. Reversal of its own decisions by the Supreme Court:
It is on record that on several occasions the Supreme Court reversed its earlier decisions. The
judgment in the Golaknath case reversed the earlier judgments and the judgment in the
Keshwananda Bharati case reversed the judgment in the Golaknath case. The same enactment
was held valid, then invalid and then again valid. Such reversals reflect the element of
subjectivity in the judgments. On all these grounds the critics strongly criticise the system of
Judicial Review as it operates in India.

Justification of Judicial Review

A very large number of the supporters of Judicial Review do not accept the arguments of the
critics. They argue that Judicial Review is an essential and very useful system for Indian liberal
democratic and federal system. It has been playing an important and desired role in the
protection and development of the Constitution.
(1) Judicial Review is essential for maintaining the supremacy of the Constitution.

(2) It is essential for checking the possible misuse of power by the legislature and executive.

(3) Judicial Review is a device for protecting the rights of the people.

(4) No one can deny the importance of judiciary as an umpire, or as an arbiter between the centre
and states for maintaining the federal balance.

(5) The grant of Judicial Review power to the judiciary is also essential for strengthening the
position of judiciary. It is also essential for securing the independence of judiciary.

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(6) The power of Judicial Review has helped the Supreme Court of India in exercising its
constitutional duties.

(7) The possibility of abuse of is power of by the Judiciary is very less because several checks
have been in existence:
(a) Lack of a clear statement of this power in any article of the Constitution.

(b) Judicial Review is not possible on some laws. The Parliament can place laws aimed at
securing socio-economic reforms in the 9th Schedule of the Constitution. This makes these
immune from Judicial Review.

(c) The scope of Judicial Review stand limited to only legal and constitutional cases.

(d) The Supreme Court is itself bound by the Constitution of India and the Parliament can amend
the Constitution.

(e) The grant of specific fundamental rights to the also limits the scope of Judicial Review.

(f) The Parliament can pass laws and amendments for overriding the hurdles created by Judicial
Review.

These limitations can prevent a possible misuse of Judicial Review power by the Courts.
A formidable fact which justifies the presence and continuance of the Judicial Review has been
the judiciousness with which it is being used by the Supreme Court and High Courts for carrying
out their constitutional obligations. These have used it with restraint and without creating
hindrances in the way of essential socio-economic reforms.

*****

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JURISDICTION OF THE SUPREME COURT.
Jurisdiction: Meaning:
The authority of a Court to rule on certain cases.
Ex: The Supreme Court has Jurisdiction over the entire India.
It is the power that a court of law exercises to carry out judgments and enforce laws.
a) Original Jurisdiction
b) Appellate Jurisdiction
c) Advisory Jurisdiction
d) Revisory Jurisdiction
e) Judicial Review

Original Jurisdiction:
Original Jurisdiction means the power to handle those cases which cannot be moved in any other
court other than SC i.e. in the first instance.
These cases include:
a) Centre-State or State-State Disputes ( Centre-State, State- State, Centre-State v/s State,
States v/s States)
b) Protection of Fundamental Rights: In case if the Fundamental Rights of an individual are
violated, then such individual can directly approach the SC.
c) Transfer of Cases from One Lower Court to Another Lower Court in the cases of great
importance.
d) Interpretation of the Constitution: Cases related to Interpretation of the Constitution, are
exclusively handled by the SC.

Appellate Jurisdiction:
Appellate Jurisdiction means the power to handle the cases on appeal against the judgement
delivered by any court in the country. (SC is the Court of Appeal which can reduce or change the
judgement passed by any lower courts in the country.)
These cases include:

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a) Constitutional Cases: When HC is unable to handle, or wants SC to handle an important
case, then it sends such cases to SC with a certificate. In absence of a certificate, if required SC
can intervene and handle such special cases on appeal.
b) Civil Cases: important case with HC certificate, or without HC certificate on appeal.
c) Criminal Cases: important case with HC certificate, or without HC certificate on appeal.
In case if the Fundamental Rights of an individual are violated, then such individual can
directly approach the SC.
SC has power to issue writs like habeas corpus, mandamus, writ of prohibition, writ of
certiorari & quo warranto for the enforcement of the Fundamental Rights.
Writ: It is an order from a judicial authority asking a person to perform some act or stop
performing an act. (It is as order issued by the Supreme Court in order to protect fundamental
right of an individual).

Advisory Jurisdiction:
President may refer and send a case of special case of importance or regarding any law for
consideration to SC, this power of SC to handle such cases is called as Advisory Jurisdiction.

Cases regarding disputes of Pre-Constitution period are also handled under this power.
SC is empowered to review any judgment or order made by it with a view of removing any
mistake or error that might have crept in the judgment or order this power of SC is called as

Revisory Jurisdiction.
SC is empowered to review any judgement or order made by it with a view of removing any
mistake or error that might have crept in the judgement or order this power of SC is called as
Revisory Jurisdiction.
This is done because, SC is a court of record, its decisions has special importance and can’t be
questioned in any other court.

*****

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WRIT JURISDICTION AND ITS SCOPE.
 Both the Supreme Court (under the Article 32) and the high courts (under the Article
226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and also the
quo-warranto.
 However, the Parliament (under Article 32) can empower any other court to issue these
writs.

Difference Between Writ Jurisdiction of Supreme Court and High Court:

Writ Jurisdiction of SC Writ Jurisdiction of HC
Wider Writ Jurisdiction: HC can issue writs for
Narrow Writ Jurisdiction: SC can issue writs
the enforcement of other Rights also viz.
only for the enforcement of Fundamental Rights.
ordinary legal right.
Wider territorial jurisdiction Narrow territorial jurisdiction
SC can’t refuse to exercise its writ jurisdiction HC can refuse to exercise its writ jurisdiction
since Art.32 is itself a Fundamental Right since this remedy is discretionary.

Writs Explained:
1. Habeas Corpus
Literal meaning: It is a Latin term which literally means ‘to have the body of’.
 It is an order which is issued by the court to a person who has detained another
person to produces the body of the latter before it.
 In fact, the court then examines the cause and the legality of the detention.
 And, it would set the detained person free, if the detention is found illegal. Thus, this writ
is a bulwark of individual liberty against the arbitrary detention.
 It can be issued against both the public authorities as well as private individuals.
 Limitations: The writ is not issued where the: (a) detention is lawful, (b) the proceeding
is for contempt of the legislature or a court, (c) detention is by a competent court, and (d)
detention is outside the jurisdiction of the court. [ie. A particular H.C.]

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  Habeas Corpus is rendered ineffective if the detenu is produced before Judicial
Magistrate.

Current Linkage- Hadiya Case: A unique Case of Habeas Corpus Background of the case
 Hadiya is a 24-year student of homoeopathy from Kerala who converted to Islam before
getting married to Shefin Jahan, a Muslim man.
 In early 2016, her father initially filed a missing person report with the police and later
filed a Habeas Corpus petition in the Kerala High Court to trace her.
 Shefin Jahan is on the National Investigation Agency (NIA) radar.
 Both NIA and Hadiya's father claimed Jahan was a recruiter for radical groups.
 After the petition and on NIAs report to the Supreme Court which stated that Hadiya was
a victim of indoctrination and psychological kidnapping i.e. she was brainwashed to
accept Islam and marry Jahan, the Kerala High Court annulled the marriage.
 This case was popularised by the Indian media as a case of love jihad.
 A plea was filed by Hadiya’s husband. The Supreme Court bench comprising Justices A
M Khanwilkar and D Y Chandrachud examined the plea.
 On January 23, 2018, the judges proclaimed the decision that no one including the SC
can question Hadiya’s choice of marrying a person and that the NIA cannot investigate
whether she married a good person or a bad person.
 When it was stated that “Marriage is only a device to legitimise her illegal confinement,”
the Supreme Court said that “Who is the person to tell the court? She must say. She is
an adult. She appears in court and says she is married. What can the court do?”
 Thus, the court alienated itself from questioning Hadiya’s choice for a husband.

2. Mandamus: It literally means ‘we command’.

 Well, it is a command which is issued by the court to the public official asking him to
perform the official duties that he has failed or refused to perform. Examples- For every
action having a legal authorisation [i] Asking D.C. to provide Compensation for Land
Acquisition [ii] Asking the State to consult Gram Sabha before felling of Trees in certain
areas [iii] Timely payment of Widow pensions [iv] Elimination of Manual Scavenging

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  It can also be issued against any public body, a corporation, an inferior court, a tribunal
or government itself [i.e. not only against officers]for the same purpose.
 The writ of mandamus cannot be issued (a) against a private individual or body; (b) To
enforce departmental instruction that does not possess the statutory force; (c) when the
duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e)
Against the president of India or the state governors; and (f) Against the chief justice of
the high court acting in the judicial capacity.
Note: Mandamus is a discretionary remedy and High Courts may refuse to grant it
where some alternate remedy is available.
 However, in the matters of enforcement of Fundamental Rights, the availability of an
alternative remedy does not weigh so much.
 It is issued when one or the other organization from Judiciary, Executive or Legislature
refuses to exercise its jurisdiction. If S.H.O of as particular Police Station refuses to arrest
a criminal politician accused of rape or other heinous crime.
 High Courts can issue these writs even for violation of Ordinary rights.
 Mandamus can be issued even negatively, to direct a public official not to implement a
law which is unconstitutional. So, Mandamus works both ways: Positively as well as
negatively
 The Courts are normally reluctant to issue any direction to Govt. for making a Law
Recently former Law Minister moved S.C. to issue directions to Govt. to enact a Law
against Torture. But S.C. refused.

Mandamus cannot be issued for the following:

1. The President or Governor of a State, for the exercise and performance of the powers and
duties of his office or for any act done by him or purporting to be done by him in the
exercise of those duties Eg. President’s Rule or Governor’s approval to the ordinance.
2. Mandamus does not lie against a private individual or body whether incorporated or not.
Except where the State is in partnership with a private party eg. NTPC + Vedanta or
Reliance are negligent about water Pollution in the course of Mining operations.

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 3. Prohibition: Literally, it means ‘to forbid’. [negative connotation]
 Well, it is issued by the higher court to the lower court or the tribunal to prevent the
latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
 Thus, the unlike mandamus that directs the activity, the prohibition directs inactivity.
 Furthermore, the writ of the prohibition can be issued only against the judicial and the
quasi-judicial authorities.
 In can be issued before the judicial authority has passed its order.
 Limitation: It is not available against administrative authorities, legislative bodies, and
private individuals or bodies.
 Current Linkage: An example of Prohibition, though not strictly applicable [Writs]
 Ministers not under RTI: Delhi High Court
 The Delhi High Court has set aside the Central Information Commission (CIC) order
declaring ministers as “public authorities” under the transparency law.
 Delhi High Court overturned the 2016 order of the CIC, declaring the “ministers in the
Union Government and all State Governments as public authorities” under the Right to
Information (RTI) Act.
 Clarifying its stance, H.C. said that there was no occasions for the CIC to enter upon the
question as to whether a Minister is the public authority under the Section 2(h) of the
Act. Further, directions which is issued by the CIC are also wholly outside the scope of
the matter before CIC.
Analysis: The CIC directive that ministers were answerable under the RTI Act would mean that
people can directly send the questions to a minister by filing an RTI application which will be
answered by the public information officer in his office. The case emanates from the application
filed by a man in 2014 before Additional Private Secretary, Minister of Law and Justice seeking
to know the time period of minister or minister of state meeting the general public.

4. Certiorari
 Well, in the literal sense, it means ‘to be certified’ or sometimes ‘to be informed’.
 In fact, it is issued by a higher court to the lower court or the tribunal either to transfer a
case pending with the latter to itself or to squash the order of the latter in the case.

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  Also, it is issued on the grounds of the excess of jurisdiction or the lack of jurisdiction or
error of the law. Thus, an unlike prohibition, which is only preventive, certiorari is
both the preventive as well as the curative.
 Till recently, the writ of certiorari could be issued only against judicial and quasi-judicial
authorities and not against administrative authorities.
 However, in the year of 1991, the Supreme Court ruled that the certiorari can be
issued even against administrative authorities affecting the rights of individuals.
 Like prohibition, certiorari is also not available against the legislative bodies and also
the private individuals or the bodies.

5. Quo-Warranto
 It means ‘by what authority or warrants’.
 However, it is issued by the court to inquire into the legality of the claim of the person
to the public office. Hence, it prevents an illegal usurpation of the public office by the
person.
 The writ can be issued only in the case of the substantive public office of a permanent
character which is created by the statute or by the Constitution.
 Moreover, it cannot be issued in the cases of the ministerial office or private office.
 Unlike the other four writs, this can be sought by any interested person and not
necessarily by the aggrieved person.
*****
WRIT JURISDICTION OF THE SUPREME AND HIGH COURTS
 A writ is a quick remedy against injustice, a device for the protection of the rights of
citizens against any encroachment by the governmental authority. Writs originated in
Britain where they were king’s or queen’s ‘prerogative’ writs and were commands to the
judicial tribunals or other bodies to do or not to do something. Since writs carried the
authority of the crown they were to be obeyed. Later, writs came to be enjoyed by the
judges of the King’s Bench. In India, the power to issue writs has been vested in the
Supreme Court and the High Courts. It is an extraordinary remedy which can be
expected in special circumstances.

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  The Supreme Court has been empowered to issue writs in the nature of habeas corpus,
mandamus, prohibition, and certiorari and quo warranto for protecting the fundamental
rights [article 32(2)]. Similar power has been conferred on the high courts via article 226.
The high court can issue the above writs for protecting the fundamental as well as
statutory and common law rights. The high courts can issue writs to any governmental
authority outside their territorial jurisdiction, provided the cause of action arises (in
whole or in part) within their territorial jurisdiction.
 A writ is a discretionary remedy and the high court can refuse it on the ground of
acquiescence, laches (delay), available alternative remedy and no benefit to the party.
Under article 226(3), a high court can grant interim relief by way of interlocutory orders.
 While the jurisdiction of the high court is more extensive than that of the Supreme Court,
art. 226 (4) provides that the powers conferred on a high court shall not be in derogation
of the powers conferred on the supreme court by article 32(2). In L Chandra Kumar
verses UOI, held that a person cannot go directly to the Supreme Court from a decision of
a tribunal, without first going to the high courts. Thus, the aggrieved person has got
another remedy by way of a writ petition before the high court concerned. Thus, what
was earlier two-tier litigation has now become three-tier litigation. The tribunals cannot
oust the jurisdiction of the high courts under articles 226/227 set free forthwith. Its
purpose is not to punish the wrongdoer but merely to secure the release of the person
illegally detained.
 The scope of the writs in Indian law is wider than that of the prerogative writs in
England. This is because, firstly, the constitution uses the words writs in the nature of
which does not make our writs identical with those in England but only draws an analogy
from the latter. Secondly, Article. 32(2) do not require the Supreme Court to observe all
procedural technicalities which were relevant for the issuance of writs under English law.
Therefore, even if the conditions for the issue of any of the writs are not fulfilled, the
Court may still issue a writ in an appropriate case (except cases of government policy) of
appeal. The court will not examine the correctness or otherwise of the decision on merits.
It cannot substitute its own wisdom for the discretion vested in the authority unless the
exercise of discretion is illegal. This is true for other writs also.

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  Our High Court can issue directions, orders or writs other than the prerogative writs. This
enables the courts to mould the reliefs to meet peculiar and complicated requirements of
this country. Under article 226, writs can be issued to “any persons or authority” (any
person or body performing public duty).

SPECIAL LEAVE PETITION (ART. 136)

 An unjust law is itself a species of violence. Arrest for its breach is more so.”
– Mahatma Gandhi
 Under Article 136, the Constitution of India gives power to the Supreme Court to grant
special permission or leave to an aggrieved party to appeal against an order passed in any
of the lower courts or tribunals in India.

Special Leave Petition: Meaning

 Special leave petition (SLP) means that an individual takes special permission to be heard
in appeal against any high court/tribunal verdict. Thus it is not an appeal but a petition
filed for an appeal. So after an SLP is filed, the Supreme Court may hear the matter and if
it deems fit, it may grant the ‘leave’ and convert that petition into an ‘appeal’. SLP shall
then become an Appeal and the Court will hear the matter and pass a judgment.

Special Leave Petition: When It Can Be Presented ??

Special leave petition (SLP) can be presented in the following circumstances:
 It can be filed against any judgment or decree or order of any high court / tribunal in the
territory of India, or
 It can be filed in case a high court refuses to grant the certificate of fitness for appeal to
Supreme Court of India.

Special Leave Petition: Who Can File It ?

 Any aggrieved party can file an SLP against the judgment or order of refusal of grant of
certificate.
 Through SLP, an aggrieved party can appeal to the Supreme Court against any judgment
passed by any lower court or tribunal. This leave is granted when the case involves a

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 question of law. Mere errors of fact, mis-appreciation of evidence or even findings of fact
arrived at wrongly are not grounds of appeal before the Supreme Court. The Supreme
Court is only concerned with question of law i.e. if the law was correctly applied,
whether the interpretation of law was in accordance with the settled principles of law etc.
 The aggrieved party or the petitioner filing SLP has to give a brief synopsis of the facts
and issues presented in the case along with a list of dates specifying the chronology of
events pertinent to the judgement. Along with this, the petitioner has to formulate
questions of law to appeal against the judgement. These questions should pertain to laws
relevant to the general public as well.
 Once registered and presented in the Supreme Court, the petitioner will get a hearing
before the Court. Subsequently, depending on the merits of the case, the Supreme Court
will issue a notice to the opposite parties who will then file a counter affidavit stating
their views. It’s at this point that the Supreme Court will decide whether to grant leave to
the petitioner or not. If the Court grants leave, the case is then converted into a civil
appeal and will be argued afresh in the Supreme Court.
 The Supreme Court can revoke the earlier judgment, modify it or allow it. The Court can
also send the case back to the relevant lower court for fresh adjudication** in light of
principles laid down by it or on account of any issues missed out by the lower court.

APPELLATE JURUISDICTION OF SUPREME COURT

Article 133–136 of the Constitution of India defines the appellate jurisdiction of the Supreme
Court. Article 133 provides for civil appeals from orders of the High Court, Article 134 provides
for criminal appeals and Article 136 provides for special leave petition. If a case does not fall
within Article 133 or Article 134 then under Article 136, the Supreme Court may be moved and
a special permission may sought to grant leave to appeal.

DISCRETIONARY POWER OF SUPREME COURT

Appeal to Supreme Court is not a matter of right but it is matter of privilege which only the
Supreme Court will grant to any individual if there exists an important constitutional or legal
issue involved. Appeals are regulated by the Constitution of India and Supreme Court Rules,
2013.

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According to Article 141 of the Indian Constitution, the Supreme Court’s judgment is declared
as law of the land and is binding on all courts in India.
*****

RELIEF AGAINST AN INTERIM ORDER – INTERIM RELIEF (ART. 226(3)).

Article 226(3) in The Constitution Of India states as follows:
(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without
(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

*****

LOCUS STANDI.
Locus Standi: Meaning.
 Locus Standi means "place for standing". Hence it means the legal capacity to challenge
or question an act or decision, by a party before the court.ie, it answers the question who
may apply or file a suit or a petition. The Court strictly speaking entertains only if he is
an aggrieved or interested person. But this is very much liberalized and widened.

Locus Standi: Scope in USA, England.

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  In the United States, the strict rule of “standing” is liberalized and the Court entertains if
the person is within the "zone of interests protected by Statute or Constitution". (Falset v.
Cohen)
 In England, the strict rule has undergone a change due to the dynamic activism of Lord
Denning. The person will be heard, if he has "sufficient interest". "I always like to hear,
what he has to say"-says Lord Denning.

Locus Standi: Scope: India.

 In India also the scope is very much widened, and hence the rule that the person should
be an “aggrieved person” is no longer applicable. Since the leading case of "Transfer of
Judges" (S.P. Gupta v. Union of India), the scope of Locus Standi is widened by the
Supreme Court.
(i) In Habeas Corpus petitions, the Court permits any other person, (next friend) to move the
Court. Even letter by the detenu to the Chief Justice, was itself considered by the Supreme
Court as a Writ petition.
(ii) Tax payers or fee payers may challenge the illegal action of the Authority e.g.
granting of cinema licence, liquor-shop license can be questioned by rate payer.
(iii) In Quo warranto, any person in the public may challenge usurpation of public office.
Lawyers may question order of transfer of Judges, appointment of Advocate General etc.
(iv) When the State or Public Authority has failed to carry out an obligation provided in a
Statute, any person to prevent "Public injury" may move the Court. e.g. Ratlam Municipal
Council v. Vardichand. Here the petitioner was held to have locus standi to question the
municipality which had failed to construct drainage.

Public Interest litigation and Locus Standi.

This has added a new dimension to the judicial activism. The Courts in public interest entertain
petitions and provide relief, going beyond the bounds of locus standi. In keeping with the socio-
economic changes, the Courts have used P.I.L., as a device to entertain petitions in public
interest.
The leading cases are:
1. Transfer of Judges case

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2. Bandhua Mukhi Morcha v. Union of India
3. S.Wadhwa v. State of Bihar
4. Fertiliser Corporation v. Union of India
5. M.C. Mehta v. Union of India

Thus Traditional locus standi rule no longer holds the field. It has been widened to meet the
challenges of the modern society in all areas socio-economic, scientific, technological,
environmental, etc.

State's Privilege (Crown's Privilege)

Meaning:
The general rule is: "Salus Populis Suprema Lex"(Public interest is Supreme law). On the basis
of this, the Crown may refuse to disclose documents or answer questions, if such disclosure or
answer was injurious to "Public Interest".

In Duncan v. Camell Laird a widow had claimed damages for death of her husband due to
negligence of Government contracts when a submarine tank had killed 99 persons. Certain
documents were summoned but the minister claimed “crown's privilege”. The Court upheld
the privilege. This was overruled, by the House of Lords in Conway v. Rimmer.

A Constable had sued the prosecutor for malicious prosecution and certain documents were
claimed by the minister to be under privilege. The Court rejected the plea. Hence, the
dangerous executive power of "privileges" is subject to judicial scrutiny.

India:
Though Crown's privilege is not acceptable in India, the Executive or State privilege is stated in
Section 123 of the Indian Evidence Act. It states that evidence from unpublished official records
relating to any affairs of the State should not be given by any person, except with the permission
of the Head of the Department. Such person may give or withhold such permission "as he thinks
fit".

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Leading cases:
1. Judges Transfer Case.
2. State of U.P v. Raj Narain.
3. State of Punjab v. Sodhi Sukhdev Singh.
4. Reliance Petrochemicals v. Indian Express.

Scope:
The Concept of “right to know” is based on democratic principle that people should know what
the Government is doing. Hence disclosure by the State must be the rule, and, non disclosure or
privilege should be an exception. This was considered as part of the concept of “right to live”
under Art. 21 of the Constitution (Reliance Petro chemicals case).

As per Section 123, the Head of the Department may "as he thinks fit" allow or refuse disclosure
of documents. It this power, given to him, absolute? The Courts have held that under Section.162
Evidence Act, it is the Court which may decide finally. The objection by Govt., on grounds of
privilege, may be disallowed by Court and it may call for records. But, if the documents relate to
the secret affairs of State, the Court in public interest will not call for disclosure. Further,
whether the refusal by Head of the Department was in public interest or not, is decided by the
court by examining the documents. The final decision would always be with the Court.

According to Gajendragadakar C.J., the sole and the only test which should determine the
decision of the Head of the Department is injury to public interest and nothing else.

Finality Clause (Bar of Courts Jurisdiction).

Statutes sometime provide for finality clause i.e., the orders made by administrative authorities
or tribunals are "final". Question is whether such a clause excludes the jurisdiction of the Courts?
eg. (i) Order of Rent Controller is appealable to Rent Tribunal under Delhi Rent Control act. The
tribunal's order is final according to the Act.
(ii) Order of Assistant Commissioner of Income-tax when appealed to I.T. Tribunal, the order of
the tribunal is "final".The word "final" is interpreted by the courts to mean "final under the Act",

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and no appeal is allowed. This does not, however, mean ouster of jurisdiction of High Court
under Arts.226 & 227, and of Supreme Court under Art 32 of the Constitution.

Final means "Statutory Finality". Hence judicial review is not excluded. The ouster provision
may be indirect by providing no appeal, or it may be direct where it states that the Courts
Jurisdiction is barred.e.g. question of fact are final so far as Income Tax Tribunal is concerned.

Judicial Review:
Even if there is a direct ouster clause, the Courts interfere, if the order is:
1. Violative of Principles of Natural Justice.
2. Without evidence.
3. Issued in excess of Jurisdiction.
4. Abuse of power etc.

Rule of interpretation:
Followed by the Courts is that exclusion should not be readily inferred. Judicial review by High
Courts and Supreme Court is always available. It is the basic Rule of law which cannot be taken
away.

Leading Cases:
1. Radha Krishna v. Ludhiana Union.
2. Dhulabhai v. State.

Act of State.
This is an exercise of power by the Executive, as a matter of policy, in its relation with another
state or aliens. In such a circumstance, the State claims immunity from the Jurisdiction of the
Court, to decide. Such an act of the representative of the State may have the authority of the State
or the State may ratify such an act.

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Secretary of State v. Kamachi Bai Saheba
The Raja of Tanjore, an independent sovereign, died leaving no male heirs. The East India
Company declared that as there were no male heirs, the Raj lapsed to the British Government.
The Widow Kamachi Bai sued the company. The Privy Council held that it was an 'Act of State'
and hence, there was immunity. Hence, she failed.

Buron v. Denman:
P sued D, the captain of the British Navy for releasing the slaves and for burning the slave camps
belonging to P. This act of D was ratified by the British Government. Held this was an act of
State, and hence, P failed.

Exception: There is one exception. There is no act of State of a Sovereign State against and its
own subjects.

*****
KINDS OF WRITS AND GROUNDS FOR ISSUE OF WRITS.
1. WRIT OF HABEAS CORPUS
2. WRIT OF MANDAMUS
3. WRIT OF CERTIORARI
4. WRIT OF PROHIBITION
5. WRIT OF QUO WARRANTO

WRIT OF HABEAS CORPUS.

It is in the nature of a call to the detaining authority to produce the detenu before the Court, in
order to let the Court know on what grounds the detenu as been detained. If there are no legal
grounds for detention the detenu should be released. The writ may be addressed to anybody or
authority who has detained. The origin is in Magna Carta (1215).It is a great constitutional right
and the first security of civil liberty. According to Blackstone, the writ provides for a swift and
imperative remedy in all cases of illegal restraint or confinement. The earliest instance was in
First Edward's period in England.
Jurisdiction:

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  The Supreme Court under Art. 32 is empowered to issue the Writ of Habeas Corpus for
enforcement of Fundamental Right: (Eg: Art. 21 & 22). The High Courts are empowered
to, issue the writ for the enforcement of fundamental right and any other right. Any
person who has been detained or his next friend may move the writ of Habeas corpus.
The burden is on the detenu to prove that the detention is without legal authority or with
mala fides or in excess of authority.

Writ of Habeas Corpus: Grounds.

The burden is on the detenu to prove that the detention is:
a. Without legal authority or
b. With mala fides or
c. In excess of authority.
d. Grounds are vague, irrelevant etc.

Writ of Habeas Corpus: Petition.

The writ petition to the High Court or Supreme Court for Habeas Corpus should be accompanied
by an affidavit stating the facts and circumstances. If the Divisional Bench is satisfied that there
is a prima facie case for granting the prayer of release, it issues a rule nisi to the State (Detaining
authority).

It may grant interim "bail" to the detenu. On hearing the parties, if the Court, is of the opinion
that the detention is not justified, it issues orders to release the petitioner forthwith.(But, if it is
justified, it discharges the rule nisi).

Writ of Habeas Corpus: Emergency Period.

In Makhan Singh v. State of Punjab, it was held that if a person is detained under Defence of
India Act, he could not be released for violation of Fundamental Rights. However, if the order
was with mala fides or invalid he could be released under Arts 21 & 22 of the constitution.

However, in A.D.M. Jabalpur v. Shukla (1976), (Habeas Corpus Case) The Supreme Court, held
that during emergency the Fundamental Rights were suspended, and hence the remedy i.e.,

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habeas corpus was not available. Detenu has no locus standi, it held. This was an unfortunate
decision, Khanna J. wrote a powerful dissent.

Writ of Habeas Corpus and 44th Amendment.

According to 44th Amendment, even during National Emergency, Articles 21 and 22 cannot be
suspended. Hence this supersedes the Habeas corpus case. The position now compares well with
England, where even during I and II World Wars, Habeas corpus was not suspended. (Liveridge
v. Anderson and in re Halley).

Writ of Habeas Corpus: Widened scope.

Writ may be issued in cases of preventive detention, illegal custody of wife, children, contempt
of the House, under trial prisoners, detentions by private persons, etc.

Writ of Habeas Corpus: Leading Cases.

1. Darnel's Case or The Five Knights Case (1627)
Thomas Darnell, John Corbet, Walter Earle, John Heveningham, and Edmund Hampden
petitioned King's Bench for a writ of habeas corpus to be set free. The attorney general replied
that they were being held "by the special command of his majesty.” The question before the
court was whether this was an adequate return on the writ. The court found in favour of the King,
since common law had no control over the royal or absolute prerogatives of the monarch. The
Petition of Right 1628 reversed the effect of the decision by preventing the power of arbitrary
committal by the King. The Habeas Corpus Act 1640 restored the right to petition the courts for
being let free against the wishes of the King and his Council.

2. Rakesh Kaushik V. B.L. Vij, Superintendent, New Delhi

A number of allegations have been made in , regarding illegal acts committed by the rich and
influential prisoners not only with the permission of the prison officers, but also with their active
help. Some of the main allegations leveled by the petitioner (Prisoner) respect of a foreign
convict confined in Tihar Jail.

3. Hussainara Khatoon v. Home Secretary, Bihar.

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In December 1979, Kapila Hingorani had filed a petition regarding the condition of the prisoners
detained in the Bihar jail, whose suits were pending in the court. The special thing about this
petition was that it was not filed by any single prisoner, rather it was filed by various prisoners of
the Bihar jail. The case was filed in the Supreme Court before the bench headed by Justice
P.N.Bhagwati. This petition was filed by the name of the prisoner, Hussainara Khatoon, hence
the petition came to be known as Hussainara Khatoon Vs State of Bihar. In this case, the
Supreme Court upheld that the prisoners should get benefit of free legal aid and fast hearing.
Because of this case 40,000 prisoners, whose suits were pending in the court, were released from
the jail.

4. Motilal Jain v. State of Bihar.

The appellants partner in a grocery shop, was detained under s. 3 (I) (a) (iii) and s. 4 of the
Preventive Detention Act for indulging in black-marketing of essential commodities. He was
supplied with an order detailing a number of grounds in support of his detention. In one of the
&rounds viz., cl. (a) of the order the name of the shopkeeper to whom the appellant was said to
have sold match boxes and soap "at a price higher than that fixed for these commodities" was not
mentioned. Neither the price fixed nor the price at which it was said to have been sold was
mentioned. In another ground viz.' el. (d) of the order a sale was alleged to K who was not
existing in the described locality. On the question of the validity of the order of detention, this
Court, HELD: The order must be set aside.

5. Liveridge v. Anderson.
Emergency powers in Regulation 18B of the Defence (General) Regulations 1939 permitted the
Home Secretary to intern people if he had "reasonable cause" to believe that they had "hostile
associations". Sir John Anderson exercised this power in respect of a man called Jack Perlzweig,
who used the name Robert Liversidge, committing him to prison but giving no reason. On
appeal, the case, joined with that of Ben Greene, reached the Appellate Committee of the House
of Lords, the highest court of appeal. They had to decide whether the court could investigate the
objective basis for the reasonable cause; in other words, could they evaluate the Home
Secretary's actions on an objective standard, comparing them to that which might be taken by a
reasonable man, or were they to measure them against the personal standard of the Secretary?

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6. In re Halley.
The petitioner instituted this proceeding to obtain his release from the State prison of southern
Michigan. Based on the application filed, a writ of habeas corpus directed to the warden of the
prison was issued, with accompanying writ of certiorari to the bureau of pardons and paroles of
the State of Michigan. Returns to the writs have been filed.

7. Sunil Batra vs. Delhi Administration

A letter written by a convict to one of the judges of the Supreme Court was treated as a writ
petition. The court employed this writ for the neglect of state penal facilities. The writ was also
issued when a ban was imposed on the law students to conduct interviews with prison mates for
affording them legal relief.

WRIT OF MANDAMUS: MEANING

Literally it means "We Command". It originated in England. It is a peremptory order issued by
the High Court or Supreme Court in India. It demands Masterly activity on the authority or body
or person to whom it is addressed. It commands him to perform some public legal duty when the
doing of a duty had been willfully refused.
 When the performance cannot be enforced by any other means, the Writ of Mandamus
may be sought after, as a judicial remedy, as it is effectual, convenient and beneficial. It
is available in all cases, where there is specific right but not a specific legal remedy. It is
the right arm of the Court. : It is not issued to private parties.
 Magna Carta (1215) stated: Crown was bound neither to deny justice to anybody, nor to
deny anybody right to justice. Middleton's case of 1573 is the first reported case in
England. The objective is that justice may be done i.e., to remedy defects of justice or
failure of justice. Hence an extra-ordinary remedy. It is a popular remedy as well.
 Mandamus is a judicial remedy in the form of “‘an order’ to do or to forbear from doing
some specific act” which that agency is obliged to do or to refrain from doing under the
law and which is in the nature of a public duty or a statutory duty. It is considered as a
residuary remedy of the public law.
 It is a general remedy whenever justice has been denied to any person. It may be issued
not only to compel the authority to do something but also to restrain it from doing

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 something. Therefore, it is both negative and positive and hence can do the work of all
other writs. It can be issued on all those counts on which certiorari and prohibition can
be issued.
 Mandamus would lie only to enforce a duty which is ‘public’ in nature. There must be a
specific demand for the fulfillment of duty and there must be specific refusal by the
authority. The applicant must’ve a legal right to the performance of a legal duty. If the
rights are purely of a private character no mandamus can be issued.
 A ‘public duty’ is one which is created either by a statute, the constitution or by some
rule of common law. The public duty enforceable through mandamus must also be an
absolute duty i.e. which is mandatory and not discretionary. Mandamus would not lie
where the duty is ministerial in nature i.e. where the authority has to act on the
instructions of his superior. The remedy of mandamus will not be available against any
person involved in the election process.

Writ of Mandamus: To Whom It Is Issued

 It is issued to: President of India, Courts, Tribunals, Speaker of the House, Government
(State or Central), local Authorities, Muncipalities, City Corporations, Panchayats,
Universities, Taxing or Election authorities, Public officials, other authorities (Art.12).
Also to UPSC, Chief Justice, Passport, or Revenue Authorities etc. Exception: It is not
issued to private parties.

Writ of Mandamus: Conditions.

To issue a mandamus, the Supreme Court or the High Court should be satisfied, that:
1. The Petitioner has a specific legal right;
2. The Respondent State or Authority has a legal duty;
3. Writ is made in good faith;
4. The respondent has refused relief (i.e., there should be a demand and refusal);
5. There is no other efficacious, alternate relief.
 It is a command to act lawfully and to desist from perpetrating an unlawful act. Where it
has a legal right which casts certain legal obligations on ‘B’, ‘A’ can seek a writ of
mandamus directing to perform its legal duty? Mandamus may lie against any authority,

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 officers, government or even judicial bodies that fail to or refuse to perform a public duty
and discharge a legal obligation.

 The Supreme Court may issue a mandamus to enforce the fundamental right of a person
when its violation by some governmental order or act is alleged. The high courts may
issue this writ to direct an officer to exercise his constitutional and legal powers, to
compel any person to discharge duties cast on him by the constitution or the statute, to
compel a judicial authority to exercise its jurisdiction and to order the government not to
enforce any unconstitutional law.

Writ of Mandamus: Leading Cases

Laxman Popat Bihari v. State of Gujarat
The Pension of the petitioner was not released even on the "endless in fructuous enquiries" for 15
years after retirement of the civil servant,
Held, abuse of power, Mandamus was issued to stop enquiries and order was issued to pay the
pension, with arrears.

Venkatraman v. State of Madras (To enforce a Fundamental Right)

A Communal G.O. of Madras Government was quashed as ultra vires of Art.16 of the
Constitution and the court issued a mandamus to consider the petitioner for the magistrate's job
on merit, without looking to the ultra vires G.O.

Somnath v. State of Rajasthan

The Court issued a mandamus to the municipality restraining it from collecting
"Taxes" as it had no jurisdiction.

Salonath Tea Co. v. Superintendent of Taxes

An order of assessment of taxes, was declared bad. But dept, refused to refund taxes
already paid. Mandamus was issued, to pay.

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Maneka Gandhi v. Union of India
 Right to go abroad was a fundamental right under Art.21 of the Constitution, and, hence
impounding passport without hearing the party was bad, and a mandamus could be
issued.

Jatinder Kumar vs. State of Punjab

It was held that article 320(3) of the constitution which provided that before a government
servant was dismissed, the UPSC should be consulted, did not confer any right on a public
servant and hence failure to consult the public service commission did not entitle the public
servant to get mandamus for compelling the government to consult the commission. However, if
the authority is under law obliged to exercise discretion, mandamus would lie to exercise it in
one way or the other.

Praga Tools Corporation vs. CVI Manual

It was held that a mandamus could issue against a person or body to carry out the duties placed
on them by the statutes even though they are not public officials or statutory body. Technicalities
should not come in the way of granting that relief under article. 226.

Unni Krishnan vs. Union of India

It was held that a private medical/engineering college comes within the writ jurisdiction of the
court irrespective of the question of aid and affiliation.

UOI vs. Prakash P. Hindu

It was held that parliament exercises sovereign power to enact laws and no outside power or
authority can issue a direction to enact a particular piece of legislation. Similarly, no mandamus
can be issued to enforce an act which has been passed by the legislature. Therefore, the direction
issued by the apex court in Vineet Narain case regarding conferment of statutory status on
CENTRAL VIGILANCE COMMISSIONcannot be treated to be of such a nature the non-
compliance whereof may amount to contempt.

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Where, however, the issuance of mandamus directing the investigating agencies to investigate
into offences was found futile, the court forged out a new tool of “continuing mandamus”
requiring the agencies to report the progress to the court so that monitoring by the court could
ensure continuance of the investigation.

Privy purse** Case

 A Mandamus was issued to the President of India by the Supreme Court, not to give
effect to the presidential order abolishing privy purse.
**In India, the Privy Purse was a payment made to the ruling (royal or lower) families of
erstwhile princely states as part of their agreements to first integrate with India in 1947 after the
independence of India, and later to merge their states in 1949 whereby they lost all ruling rights.
The abolition of 'privy purse' had to wait till 1971 and was successfully passed as the 26th
Amendment to the Constitution of India in 1971. The then Prime Minister, Indira Gandhi, argued
the case for abolition based on equal rights for all citizens and the need to reduce the
Government's revenue deficit.
Sawyer's Case
 The American Supreme Court issued to the President of U.S. not to enforce "steel
seizure" order.

WRIT OF CERTIORARI.
Certiorari means ‘to certify’. It was a High prerogative writ issued by the superior Courts to the
inferior Courts in England and other countries including India. Later these were extended to
Tribunals and other executive authorities who exercised quasi-judicial functions.
 1. Certiorari means 'to certify' It was a High prerogative writ issued by the superior
Courts to the inferior Courts in England. Later these were extended to Tribunals and
other executive authorities who exercised quasi-judicial functions.
 In India, only the Supreme Court and the High Courts are invested with the writ
jurisdiction under Art.32 and Art.226 of the Constitution respectively. The object of the
writ of certiorari is to see that the inferior authorities properly exercise their jurisdiction.
The Courts will interfere to quash, a quasi-judicial order which is either without
jurisdiction or against the Principles of Natural justice.

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  (The writ of prohibition is issued if the case is 'pending' in the lower court or tribunal) If
the case has already been decided, certiorari may be issued to quash the decision of the
lower court or tribunal.

Writ of Certiorari: Conditions.

i) The Lower Court or tribunal or authority must be under a duty to act judicially such an act
must affect the rights of the individuals;
ii) There must be want of or excess of jurisdiction (Error of Jurisdiction);
iii) Contravention of the Principles of Natural justice;
iv) To correct an error apparent on the face of the record.

 ‘Certiorari’ is a Latin word meaning ‘to inform’ or ‘to certify.’ it was essentially a royal
demand for information. The king wishing to be certified of some matter ordered that the
necessary information be provided for him. ‘certiorari’ may be defined as a judicial order
operating in personam and made in the original legal proceedings, directed to any
constitutional, statutory or non-statutory body or person, requiring the records of any
action to be certified by the court and dealt with according to law.
 It can be issued against constitutional bodies (legislature, executive and judiciary or their
officers), statutory bodies like corporations, non-statutory bodies like companies and
cooperative societies and private bodies and persons.
 The writ is corrective in nature, thus its scope of operation is quite large. The purpose of
certiorari is not only negative (to quash an action) but it contains affirmative or positive
action also.
 In India, only the Supreme Court and the High Courts are invested with the writ
jurisdiction under Art.32 and Art.226 of the Constitution respectively. The object of the
writ of certiorari is to see that the inferior authorities properly exercise their jurisdiction.
The Courts will interfere to quash, a quasi-judicial order which is either without
jurisdiction or against the Principles of Natural justice.

Writ of Certiorari: Leading Cases.

Gujarat steel tubes v Mazdoor Sabha

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  It was held that while quashing the dismissal order, the court can also order reinstatement
and the payment of back wages.

Syed Yakoob verses Radhakrishnan, held that the jurisdiction of the high court to issue a writ
of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an
appellate court. An error of law which is apparent on the face of the record can be corrected by a
writ, but not an error of fact, howsoever grave it may appear to be. However, if a finding of fact
is based on ‘no evidence,’ that would be regarded as an error of law which can be corrected by
certiorari.
 Certiorari can be issued to quash judicial, quasi-judicial as well as administrative actions

A.K. Kraipak vs. UOI

 In this case, the writ of certiorari was issued to quash the action of a selection board, on
the ground of personal bias.

Province of Bombay vs. Kushaldas Advani

The Government of Bombay requisitioned* the house of K, a tenant and allotted it to A, under
Bombay Land Acquisition Act. K applied for certiorari. The Supreme Court held that if the
certiorari is to be issued, the lower authority must be exercising quasi-judicial functions. The
Act had not provided for such an authority.
*demand the use or supply of (something) by official order.
 This decision is no longer good law as in State of Orissa v. Binapani Dei the Supreme
Court has held, a duty to act judicially is implied when the act is affecting the rights of
persons, and hence if the Act is silent, the court will read into it, fair procedure of Natural
Justice in such cases.

WRIT OF PROHIBITION.
It is a judicial writ, (an order), issued by the Superior Court to the inferior court, preventing it
from exercising a jurisdiction which is not legally vested in it: or which it is continuing its
proceedings against the law of the land. (Halsbury*)

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(*Halsbury's Laws of England is a uniquely comprehensive encyclopaedia of law, and provides
the only complete narrative statement of law in England and Wales. It has an alphabetised title
scheme covering all areas of law, drawing on authorities including Acts of the United Kingdom,
Measures of the Welsh Assembly, UK case law and European law. It is written by or in
consultation with experts in the relevant field.)

 The object of the writ is prevention i.e., prevention is better than cure. It restrains the
lower court, tribunal or Authority from proceeding further in excess of its jurisdiction. It
brings masterly inactivity, to it. It shall close the case forthwith.
 Prohibition is a judicial order to the agencies (constitutional, statutory or non-statutory)
from continuing their proceedings in excess or abuse of their jurisdiction or in violation
of the principles of natural justice or in contravention of the law of the land. it is issued
primarily to prevent an inferior court or tribunal from exercising its jurisdiction (i.e.
exercising power or authority not vested in them).
 Prohibition does not lie against an authority discharging purely administrative or
executive functions, it issues only against an authority discharging judicial functions
(Isha Beevi verses Tax Recovery Officer).
 Before the writ of prohibition can be issued there must be something to be done. It is a
‘writ of right’. Prohibition has much in common with certiorari’, both are ‘jurisdictional
writs’ issued against judicial or quasi-judicial authorities on similar grounds. however,
prohibition is issued while judicial process is in motion to prevent it from proceeding
further, certiorari is issued to quash the proceedings and is therefore issued when the
judicial process has ended in a decision (i.e. on completion of the proceeding). Thus, the
object of the writ of prohibition is in short ‘prevention’ rather than cure, while certiorari
is used as a ‘cure.’
 However, these remedies may be applied simultaneously, certiorari to quash the
proceedings and prohibition to stop the tribunal from continuing to exceed its
jurisdiction. The usual practice is to pray for prohibition and alternatively certiorari
because it may happen that pending proceedings for prohibition the agency may hand
over its final decision.

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Writ of Prohibition: Grounds.
In India, the Supreme Court (Art. 32) the High Courts (Art.226) are empowered to issue the writ
of prohibition to the Lower court, Tribunal or Authority, if it proceeds to act:
(i) Without or in excess of jurisdiction;
ii) In violation of the principles of Natural justice;
iii) Under a law which is itself ultra vires;
iv) In violation of Fundamental Rights.

Writ of Prohibition: Leading Cases.

1. Rex v. Electricity Commissioner
 The Electricity Act, provided for the appointment of commissioners. They made a
scheme for some districts. They commenced a local enquiry. Certain companies affected
by the scheme, claimed for the issue of a prohibition. The court issued the write and
stopped forthwith the proceedings of the enquiry body, as the commissioner had no
jurisdiction.

2. R. v. Local Government Board

 The lower authority proceeded to try summarily a charge which was not for trial under
the concerned statute. Prohibition was issued.

3. Mathura Prasad v. State of Punjab.

 An item was exempted from payment of tax, but the taxing authority proposed to assess
on such a commodity, in the turnover of the assessee. A writ of prohibition was issued.

4. Abdul Kadhir v. State of Kerala.

 Levy of a licence fee without authority was restrained by issuing a writ of prohibition

5. Bidi Supply Co. v. Union

 Prohibition was issued to I.T., assessment proceedings when there was a transfer order
from one office to another as this was arbitrary and against Article 14 of the Constitution.

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Writ of Prohibition: Limits.
i) It is not issued to purely administrative acts of the Executive;
ii) Mere errors or irregularities are not the grounds for writ of prohibition when the lower court
or tribunal has acted within its jurisdiction;
iii) It is issued only if the proceedings are pending in the lower court, tribunal or authority.

WRIT OF CERTIORARI AND WRIT OF PROHIBITION.

 The writ of prohibition is issued if the case is 'pending' in the lower court or tribunal. If
the case has already been decided, certiorari may be issued to quash the decision of the
lower court or tribunal.

WRIT OF QUO WARRANTO.

 Means ‘by what Authority?’ This writ was issued in England to privilege belonging to the
state. The object was to enquire by what persons who usurped or claimed any office,
franchise liberty or authority such claim is made. The court enquires: “On what authority
you are holding this office?”. It decides who had the right to the office etc., If the answer
is not satisfactory the Court will oust the usurper by issuing this writ.
 It can be issued against offices created by the constitution such as the advocate-general,
the speaker of legislative assembly, officers under the municipal act, members of a local
government board, university officials and teachers, but it will not issue against the
managing committee of a private school which is not appointed under the authority of a
statute.
 The basis of the writ is to see that by an unlawful claim, a person does not usurp a public
office. The writ is discretionary and the Court may refuse to issue if there is an alternative
remedy. This writ is a very powerful instrument against usurpation of public office.
 Quo-warranto is a question asking ‘with what authority or warrant’. The writ may be
sought to clarify in public interest the legal position in regard to claim of a person to hold
a public office. An application seeking such a writ may be made by any person provided
the office in question is a substantive public office of a permanent nature created by the
constitution or law and a person has been appointed to it without a legal title and in
contravention of the constitution or the laws.

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Writ of Quo Warranto: Grounds.
 Office must be a public office.
 Public office must have an independent and substantive character.
 Public office must be statutory or constitutional.
 Writ can be issued in respect of offices of Prime Minister, Chief Minister, Advocate
General, Judge of a High Court, President of Zilla Parishad, Speaker of Parliament or
State Legislature, University officials etc.
 No Locus standi is necessary. It can be raised by way of a Public Interest Litigation.

Writ of Quo Warranto: Conditions.

i) The office must be statutory or constitutional
ii) It must be a substantive one.
iii) It should be a public office.
iv) The holder should be the occupier and user of the office.
Writ of Quo Warranto: Statutory offices.
The examples are:
Prime Minister, Chief Minister, Advocate General, Speaker of the House, M.P., M.L.A., Mayor
of Corporation, Chief Justice etc.

Writ of Quo Warranto: Who can move?

The affected officer, or any person, with a bona fide intention in public interest may challenge.
He need not be an aspirant for the office.

Writ of Quo Warranto: De Facto Doctrine

 This means it is the dejure officer who should exercises his powers and issues orders.
But, when a defacto officer exercise his powers, before he is ousted by the court under a
Quo Warranto, his actions, decisions or exercise of power would be considered as valid
on grounds of policy and necessity.

Writ of Quo Warranto: Leading Cases

Anand Bihari v. Ram Sahay

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  The court held that the office in question must necessarily be one which is public.

G. Venkateshwara Rao v. Government of A.P.

 The court held that a private person may file an application for a writ of Quo Warranto. It
is not required that this person is personally affected or interested in the case.
 In cases of office of private nature the writ will not lie. In Jamalpur Arya Samaj Sabha v.
Dr. D. Rama, the High Court of Patna refused to issue the writ of quo warranto against
the members of the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha- a
private religious association. In the same way the writ was refused in respect of the office
of a doctor of a hospital and a master of free school, which were institutions of private
charitable foundation, and the right of appointment to offices therein was vested in
authorities who were private and not public functionary.

Niranjan Kumar Goenka vs. The University of Bihar, Muzzafarpur

The Patna High Court held that writ in the nature of quo warranto cannot be issued against a
person not holding a public office. Acquiescence (the reluctant acceptance of something without
protest) is no ground for refusing quo warranto in case of appointment to public office of a
disqualified person, though it may be a relevant consideration in the case of election. When the
office is abolished no information in the nature of quo warranto will lie.

Reddy v. State of A.P.

 Osmania University Vice – Chancellor was terminated by amending the University Act
by reducing from 5 years tenure to 3 years Held, the amended law was not applicable to
him, but to the new incumbent. Quo Warranto was issued.

University of Mysore v. Govinda Rao

 G who was a reader in English petitioned for a Quo Warranto writ against Sri Anniah
Gowda. The Supreme Court held that as per law the University could prescribe the
qualifications, and these were fulfilled by Sri Anniah Gowda. Hence, Quo Warranto was
not issued against the University.

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G. Rangaraju v. State of A.P
The Supreme Court quashed the appointment of a Sessions Judge But, he had disposed of a
number of cases as defacto sessions judge. Held, his decisions were valid.

*****
ALTERNATIVE REMEDY: LACHES OR DELAY.
 The Court may refuse to grant relief where there is no reasonable explanation for the
delay.
 However, this is not a rule of law but a rule of practice based on the Court’s discretion
and this direction is to be exercised in the light of the circumstances of each case.
 Limitation Act does not apply to a petition under Article 32 and therefore there is no
fixed period after the lapse of which the petition under Article 32 will not be entertained
by the Supreme Court.

LACHES: LEADING CASES

M.L.Cecil D’Souza v. Union of India [AIR 1957 SC 1269]
 A Petition under Article 32 was filed in the Supreme Court so as to obtain the order of the
Court quashing the seniority list prepared in 1956.
 The Supreme Court refused to entertain the petition on the ground of delay.

G.P. Doval v. Chief Secretary., Govt. of U.P. [AIR 1984 SC 1527]

 The Supreme Court entertained a writ petition under Article 32 even after unexplained
delay of 12 years on the ground that the petitioners went on making representation after
representation which did not yield any response or relief and that the petitioners belong to
the lower echelons of service.
*****
RES JUDICATA: Introduction
 Under the Roman law, “ex captio res judicata” means “one suit and one decision is
enough for any single dispute”. The doctrine has been accepted in all civilized legal
system. In India, it is governed under Section 11 of Civil Procedure Code, 1908 which

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 provides that once a matter is finally decided by a competent court, no party can be
permitted to reopen it in a subsequent litigation.

RES JUDICATA: Object.

 The doctrine is based on three maxims:-
 No man should be vexed twice for the same cause.
 It is in the interest of the state that there should be an end to litigation.
 A judicial decision must be accepted as correct.
 THE POSITION of administration of justice in India is divided into two parts:
1. ordinary and traditional;
2. extraordinary and non-traditional.
The Civil Procedure Code, 1908, inter alia, provides for the former, and articles 32, 226, 227
and 136 of the Constitution of India provide for the latter.

PRINCIPLE OF RES JUDICATA IN WRIT PROCEEDINGS.

 The principle of res judicata also applies in cases for the enforcement of fundamental
rights. Thus, where the matter had been ‘heard’ and ‘decided’ by the High Court under
Art. 226, the writ under Art. 32 is barred by the rule of res judicata and could not be
entertained.
 The principle of res judicata also applies in cases for the enforcement of fundamental
rights. Thus, where the matter had been ‘heard’ and ‘decided’ by the High Court under
Art. 226, the writ under Art. 32 is barred by the rule of res judicata and could not be
entertained. Similarly, if a decision is made under Art. 32 by Supreme Court is barred
under Art. 226.
 Exception: Writ of Habeas Corpus
(Cases: Sarwar v. UOI; Sunil Dutt v. UOI)

RES JUDICATA: LEADING CASES

Lakhanpal v. UOI

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  It was held that in the absence of new circumstances arising since the dismissal of the
petition filed in SCI under Art. 32, a fresh petition under Art. 32 on the same matter
cannot be held in the Supreme Court.

Virudhunagar Mills v. Govt of Madras

It is to be noted that a petition filed in the SCI under Art. 32 and dismissed by it on suit by a
speaking order will also be operative as res judicata, even though the order has been made
ex-parte.

Joseph v. State of Kerala

If a case has been dismissed not on merit but some preliminary grounds viz., on the ground
of laches (delay in filing the petition) or on the ground of alternative remedy available to the
petitioner, it will not operate as res judicata and, thus, will not bar petition under Art. 32.

Daryao v. State of U.P.

The general rule of res judicata cannot be treated as irrelevant or inadmissible even in dealing
with fundamental rights in petition filed under Art. 32.
*****
PUBLIC INTEREST LITIGATION: Origin.
 The Origin of PIL may be traced to the United States. The Council for public interest law
stated in 1967 that legal services have failed to provide any remedy to some segments of
the population, who have significant interests. Such groups included the poor, the
consumers, the environmentalists, the minorities etc. Hence, these were allowed
representation before the Courts in the U.S.
 In the United Kingdom, Lord Denning was responsible for PIL's remarkable development
(Leading cases: A.G. v. Independent Broadcasting Authority and Reg v. Greater London
Council)
 In India, it is the Supreme Court that has given an impetus to PIL in the Asiad case and
Transfer of Judges Case.

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  Since then a number of cases have been decided by it. The High Courts have also
followed the same lines of the Supreme Court, and today the PIL is a recognized mode of
Securing relief, which otherwise would not have been available.

Public Interest Litigation: Nature & Object.

 Public Interest Litigation is considered as "Participative Justice". It is to vindicate the rights
of many persons, even of masses, the poor, etc., as Rule of law demands that justice should
be available to all. PIL is a co-operative or collaborative effort of public spirited persons, to
enforce through courts, the legal and constitutional rights of large sections of society, against
the State or its authorities.
 The general litigation is called" adversary system", but in PIL the Government or its
Authority is always the Respondent. The Court ensures implementation-of the legislative and
executive socio economic programmers of the State, to benefit the have-nots, the
handicapped and the weaker sections of the Society. Also ensures enforcement of their
fundamental Rights. The Courts are assertive and creative in their approach. When they pass
an order in PIL the objective is to enforce the Constitution and the law.

Public Interest Litigation: Powers and Functions of Court.

 The Courts have assumed jurisdiction in PIL cases, as time had come to assert that the
Courts are also for the poor and the struggling masses half-clad and half-fed. Social
Justice is the signature tune of our Constitution. In this regard, PIL is an effective
instrument of Social Justice and has changed, in recent years, the entire theatre of law,
holding better prospects for the future.
Regarding procedure there is much flexibility. If need be, the Court may ignore the technical
rules of procedure. Hence, a letter to the Chief Justice may be treated as writ petition. Courts
have not insisted on regular writ petitions; being filed when public spirited persons move the
Court:
i) to protect under trial prisoners languishing in jails without trial;
ii) to protect inmates of protective Home in Agra;
iii) to protect Harijan workers employed in road construction in Ajmer etc.

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 Public Interest Litigation has added a new dimension to the judicial activism. The Courts in
public interest entertain petitions and provide relief, going beyond the bounds of locus standi.
In keeping with the socio-economic changes, the Courts have used P.I.L., as a device to
entertain petitions in public interest.
 Thus Traditional locus standi rule no longer holds the field. It has been widened to meet
the challenges of the modern society in all areas socio-economic, scientific,
technological, environmental, etc.
 The general rule is: "Salus Populis Suprema Lex"(Public interest is Supreme law). On
the basis of this, the Crown may refuse to disclose documents or answer questions, if
such disclosure or answer was injurious to "Public Interest".

Public Interest Litigation: Leading Cases.

1. Transfer of Judges (S.P. Gupta v. Union of India)
The Court held that the petitioners as lawyers, had sufficient interest to challenge the
"circular" issued by the Home Ministry for the appointment and transfer of Judges.

2. Asiad Case
(Peoples Union for Democratic Rights v. Union of India)
 Several Public spirited Organisations, filed a writ petition under Art.32 piloting the cause
of construction-workers of Asiad houses, on the ground of violation of the various labour
laws. The Court held that PIL writ was maintainable. It held that non-payment of
minimum wage was “forced labour” coming under Art. 23 of the Constitution.

3. State of H.P. v. U.R. Sharma.

A Letter addressed to Chief Justice of the High Court by some poor Harijans stating that an
access road to hilly area sanctioned in 1972, had not been taken up even in 1980 causing
great hardship. The Court considered the letter as writ petition. This was upheld by the
Supreme Court.

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 4. Ratlam Municipality v. Vardichand
 Some residents of Ratlam moved the Sub Divisional Magistrate under Section.133 of
Cr.P.C., for an order of abatement of Nuisance and order for construction of drainage etc.
The order was issued. This was challenged by the municipality before the Supreme Court
.The Court rejected the municipality plea that residents had no locus standi. It directed to
provide sanitation and drainage within a fixed period.

5. Bangalore Medical Trust v. Muddappa

 A Piece of land had been earmarked for “Public Park" under the Development plan of the
City of Bangalore Improvement Act, 1945. But at the instance of the Chief Minister, the
B.D.A. allotted the land to a private trust to construct a nursing home. Residents filed a
writ under Art. 226 of the Constitution. The petition was allowed. The B.D.A. appealed
to the Supreme Court. Dismissing it, the Court held that it had jurisdiction under PIL. The
allotment was held invalid and ultra vires.

6. Bandhua Mukti Morcha v.Union of India [AIR 1984 SC 803]

 An Organisation dedicated to the cause of release of bonded labourers gave a letter to the
Supreme Court and thereby informed it about the existence of bonded labourers in
Faridabad District of the State of Haryana.
 It prayed for the issue of writ for the release of the bonded labour and for the proper
implementation of the various provisions of the Constitution and Statutes with a view to
end suffering and helplessness of labourers.
 The Court treated the letter as a writ petition and entertained it and appointed a
Commission to make inquiries and report to the Court about the existence of bonded
labourers in the said area.
 The Court expressed the view that Public Interest Litigation has been evolved with a
view to bring justice within easy reach of the poor and the disadvantaged sections of the
Community.
 Even a letter given by the public spirited individuals or a social action group is treated as
writ petition by the Court and the Court readily responds to it.

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7. Hussainara Khatoon v. State of Bihar [AIR 1979 SC 1360]
 A Habeas Corpus petition was moved on the basis of a news report.
 The Court allowed the petition and ordered the release of all under-trial prisoners named
in the news report.

8. Lakshmi Kant Pandey v. Union of India [(1984) 2 SCC 244]

 A Writ petition was filed complaining that in the guise of adoption, Indian children of
tender age had to face the dreadful journey to distant foreign countries at the greater risk
of their lives.
 They were not provided any shelter and relief homes and in the course of time they were
to become beggars or prostitutes.
 The Court laid down certain principles which should be followed in determining whether
or not a child should be allowed to be adopted by foreign parents.

9. Narmada Bachao Andolan v. Union of India [AIR 2000 SC 3751]

 The Supreme Court has made it clear that change in environment does not per se violate
any right under Article 21 of the Constitution especially when ameliorative steps are
taken not only to preserve but also to improve ecology and environment.
 In case of displacement, prior relief and rehabilitation measures take place pari passu**
with the construction of the dam.
**is a Latin phrase that literally means "with an equal step" or "on equal footing". It is
sometimes translated as "ranking equally", "hand-in-hand", "with equal force", or "moving
together", and by extension, "fairly", "without partiality“; side by side; at the same rate or on
an equal footing.

10. M.C.Mehta v. Union of India [(1987) 4 SCC 463]

 A Social Worker brought to the notice of the court the pollution of the river Ganga.
 The Court ordered the closure of tanneries near Kanpur polluting the river Ganga.
 The Court directed the Nagar Mahapalika, Kanpur, to comply with the statutory
obligations under the Water (Prevention and Control of Pollution) Act, 1974.

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11. D.K.Basu v. State of West Bengal[AIR 1997 SC 610]
It is an example of a case of Public Interest Litigation filed for the prevention of torture
or inhuman treatment by the police.
 In this case, the Supreme Court has made it clear that any form of torture, cruel, inhuman
or degrading treatment with the persons arrested by the police is against Article 21,
whether it occurs during the investigation, interrogation or otherwise.

12. People’s Union for Civil Liberties v. UOI [AIR 1997 SC 1203]
 In this case, the Court has held that the fake encounter by the police is violative of Article
21.
 If it is proved that the person has been killed by the police in fake encounter, the State
may be directed to pay compensation and in such cases the doctrine of sovereign
immunity does not apply.
 PIL at best serves as just one more weapon of the social activists and public spirited
persons, in their continuous and arduous task of espousing the cause of millions, with the
well-intentioned fight for justice through Courts. However P.I.L., cannot be stretched too
far. It is not amend all and a cure-all of the ills of our society.
Other Notable cases:
 Veena Sethi v. State of U.P. (there was illegal detention of persons for over two to three
decades)
 K. Pahadiya v. State of Bihar (under-trail juveniles were kept in prison for over eight
years without trial)
 Khatri v. State of Bihar (Bhagalpur Blinding Case - Police has blinded accused persons
as punishment-) order was issued to rehabilitate them)
 Sheela Barse v. Union of India (Physically and mentally handicapped children kept in
jail)
 Wadhwa v.State of Bihar (Issue of over 100 ordinances by Governor could be
challenged under PIL.)

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Conclusion.
 PIL at best serves as just one more weapon of the social activists and public spirited
persons, in their continuous and arduous task of espousing the cause of millions, with the
well-intentioned fight for justice through Courts. However P.I.L., cannot be stretched too
far. It is not amend all and a cure-all of the ills of our society.

*****
DOCTRINE OF LEGITIMATE EXPECTATION.
 Doctrine of Legitimate Expectation: India The doctrine of legitimate expectation has been
developed by the court mainly to prevent the misuse of administrative power or discretion or
arbitrary exercise of the administrative power or discretion. The doctrine of legitimate
expectation has an important place in the development of the law of judicial review. Its is a
component of natural justice and well founded on Art. 14 of the Constitution. Article 14
requires fairness in Administrative action. Any state action which is arbitrary, is Considered
violative of Art. 14.
 Doctrine of Legitimate Expectation: India In India, the Supreme Court has developed this
doctrine in order to check the arbitrary exercise of power by the administrative
authorities.In private law, a person can approach the court only when his right based on
statute or contract is violated, but this rule of locus standi is relaxed in public law, to
allow standing even when a legitimate expectations from a public authority is not
fulfilled. Doctrine of Legitimate Expectation: India
Therefore, this doctrine provides a central space between “no claim” and a “legal claim”,
wherein a public authority can be made accountable in the ground of an expectation which is
legitimate.
For example:
If the government has made a scheme for providing drinking water in villages in certain area
but later on changed it, so as to exclude certain villages from the purview of the scheme, then
in such a case, what is violated is the legitimate expectation of the people in the excluded
villages for tap water, and the government can be held responsible if the exclusion is not fair
and reasonable.

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 The doctrine of legitimate expectation is at a stage of evolution. The principle is at the root of
the rule of law and requires fairness and reasonableness in dealings of government and its
instrumentalities with the public.
Where a decision of an administrative authority adversely affects legal rights of an
individual, duty to act judicially is implicit. But even in cases where there is no legal right, he
may still have legitimate expectations of receiving the benefit or privilege. Such expectation
may arise either from express promise or from existence of regular
practice which the applicant can reasonably expect to continue.
Principles of natural justice will apply in cases where there is some tight, which is likely to
be affected by an act of administration. Good administration , however, demands observance
of doctrine of reasonableness in other situations also where the citizens may legitimately
expect to be treated Fairly. A doctrine of legitimate expectations had been developed both in
the context of reasonableness and in the
context of natural justice.
The doctrine of legitimate expectation is well established and operated in the domain of
public law. Being less than an enforceable right, legitimate expectation does not apply to
private law. Where expectations were based upon some statement or understanding by or on
behalf of a Public authority, a person having no enforceable right but affected or likely to be
affected by an action of the public authority, may approach a court of law for appropriate
relief. The government and its departments, in administering the affairs of the country, are
expected to honour their statements of policy and treat all citizens fairly and equally. Every
action of State must be in conformity with Article 14 of the Constitution. The Doctrine of
legitimate expectation thus gets assimilated in the rule of law. If there is an express promise
held out or representation made by a public authority; or
1) Because of the existence of past practice which the claimant can reasonably expect to
continue; and
2) Such promise or representation is clear and unambiguous.
Legitimate expectation gives an applicant sufficient locus standi to apply for judicial review.
By an appropriate application, he may claim fair hearing before taking away the benefit
enjoyed by him though he may not straightaway claim such relief from the
court.

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 1. Procedural Legitimate Expectation.
Denotes the existence of some process right the applicant claims to possess as a result of
behavior by the public body that generates the expectation.
2. Substantive Legitimate Expectation.
Refers to the situation in which the applicant seeks a particular benefit or commodity, such as
a welfare benefit or license. The claim to such a benefit will be founded upon governmental
action which is said to justify the existence of the relevant expectation. Some of the
arguments in favor of substantive legitimate expectations are: it creates
fairness in public administration, reliance, and trust in government, the principle of equality,
upholds rule of law.
Schmidt v. Secretary of State, Home Affairs
The term “legitimate expectation” was first used by Lord Denning in above mentioned case
law.
Wherein the government had cut short the period already allowed to an alien to enter and stay
in England; the court held that the person had legitimate expectation to stay in England
which cannot be violated without following a procedure which is fair and reasonable.
In this manner, Lord Denning used the term “legitimate expectation” as an alternative
expression to the word “right”.
Thus, this doctrine becomes a part of the principles of natural justice, and no one can be
deprived of his legitimate Expectations without following the principles of natural justice.
The doctrine has negative and positive contents both. If applied negatively, an administrative
authority can be prohibited from violating the legitimate expectations of the people, and if
applied in a positive manner, an administrative authority can be
compelled to fulfill the legitimate expectations of the people.

Associated Provincial Picture Houses ltd v.Wednesbury Corporation

In this case certain principles have been laid down for review of the decision taken by
administrative authority. As per these principles, the court will interfere only when one of the
following conditions is satisfied:
i) The decision is contrary to law; or
ii) Relevant factors have not been considered; or

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iii) Irrelevant factors have been considered; or
iv) The decision is one which no reasonable authority or person would have taken.

Breen v/s Amalgamated Engg.Union

In this case the doctrine of legitimate expectation found its legitimate place. The district
committee of a trade union had refused to endorse a member’s election as shop steward. The
court held that if a person claims a privilege, he can be turned away
without hearing, but here a person has something more than a mere privilege –a legitimate
expectation that his election would be approved unless there are relevant reasons for not
doing so, therefore, the natural justice principles are attracted to the case in order to ensure
fairness.

The Privy Council In Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629:
(1983) 2 WLR 735: 2 ALL ER 346 PC
While quashing the removal order passed by the Hong Kong Immigration Authority without
notice and hearing also, held that there is a violation of the legitimate expectation of the
immigrant based on an announcement of the authority that while examining the cases of illegal
immigration, each case would be decided on its own merit and therefore, a removal order cannot
be passed without a fair hearing.

Council of civil Services Union v. Minister of Civil Services

In this case the legitimate expectations may arise from an expression or promise made by the
authority, or from an established past practice which cannot be violate without good reasons. In
this case, the administrative authority had withdrawn a long standing practice by mere oral
instruction. In a sense, the doctrine of legitimate expectation imposes a duty on the authority to
act fairly and is not restricted to situations where expectationers to be consulted or be given an
opportunity to make representation .

R. v. Secy.of State for Home Dept.

The court held that a certain criterion or procedure would be followed, the people

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can legitimately expect that it would be followed in the decision making process of the authority
and, therefore the authority is under an obligation to follow that criterion or procedure. In this
case, in violation of the provisions of the circular regarding entry of adopted children in England,
the authority had refused entry to the adopted child of Mr. Khan.
The court quashed the order of the authority as it was on considerations of polices which were
not in existence when the circular had been issued.

R v. Secy. Of state for Transport, Ex p. Greater London Council

The doctrine was applied in tax cases. The court held that a taxpayer had legitimate expectations
to make representation that he should not pay tax at the maximum rate.
Though the doctrine as evolved in England is still in an evolutionary stage, yet one thing is
certain that it is an equity doctrine and, therefore, the benefit of the doctrine cannot be moulded
to suit the requirements of each individual case. The court did not apply the doctrine where
applicant’s own conduct was unlawful or claim was unworthy.

Development in India
The capacity of the Supreme Court to import legal doctrines and to plant them in a different soil
and climate and to make them flourish and bear fruits is tremendous.
The importance of the doctrine of legitimate exceptation is recent.The first reference to the
doctrine is found in below mentioned case law.

State of Kerala v/s Madhavan Pillai [(1988) 4 SCC 669: AIR 1989 SC 49]
In this case, the government had issued a sanction to the respondents to open a new unaided
school and to upgrade the existing ones. However, after 15 days a direction was issued to keep
the sanction in abeyance. This order was challenged on the ground of violation of the principles
of natural justice.
The court held that the sanction order created legitimate expectation in the respondents which
was violated by the second order without following the principles of natural justice, which is
sufficient to vitiate an administrative order.

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S.C. and W.S. Welfare Association v. State of Karnataka, (1991) 2 SCC 604.
Certain areas were notified by the Government where slum clearance scheme was to be
introduced. Subsequently, the notification was amended and certain areas which were notified
earlier were left out. it was held that the earlier notification had raised legitimate expectation in
the people residing in an area left out by subsequent notification and therefore this legitimate
expectation cannot be denied without a fair hearing.
Thus, where a person has legitimate expectation to be treated in a particular way which falls
short of an enforceable right, the administrative authority cannot deny him his legitimate
expectations without fair hearing.

Navjyoti Coop. Group Housing Society v. Union of India

In this case, the development authority, without notice and hearing, had changed the order of
priority for the allotment of land to cooperative societies from ‘’serial number of registration’’ to
the ‘’’date of approval of list of members’’. Quashing the order on the ground of violation of
legitimate, the court held that where persons have been enjoying certain benefits or advantage
under an old government policy, they derive a legitimate exceptation, even though they may not
have any legal right under private law in regard to its continuance. However, before changing
that policy affecting adversely that benefit or advantage, the aggrieved persons are entitled to a
fair hearing.

Jitendra Kumar v. State of Haryana

In this the government has a right to review the decision taken by the previous establishment
and, hence, it can suspend the process of recruitment started by previous government because of
allegations of irregularities, and this cannot be challenged on the ground of violation of
legitimate expectation because legitimate expectation is different from mere anticipation, desire
and hope.

National Building Construction Comp. v. S.Raghunathan AIR 1998 SC 2779

The court has well explained the conditions required to exist for the application of this doctrine.
For the application of this doctrine, there must be representation and reliance on the
representation and resultant detriment.

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Thus, only expectation is not sufficient for its application; the expectation must be legitimate or
reasonable. If an authority cannot legally do the act expected form the person concerned, it
cannot be said that the expectation is legitimate.
UOI V. Hindustan Development Corporation[ 3 SCC 499 :1993 AIR SCW 494]
 The Supreme Court has held that the legitimacy of expectation can be inferred only if it is
founded on the sanction of law or custom or an established procedure followed in a
natural and regular sequence.

*****
DOCTRINE OF PROPORTIONALITY.
 We live in an age where administrative authorities have been empowered to exercise
discretionary powers, the position holders in the administration exercise wide
discretionary powers and these powers cannot be used arbitrarily, therefore to keep a
check on them, the doctrine of proportionality is used.
 While exercising administrative action, the body should keep in mind the purpose it seeks
to obtain and the means it is using to achieve it, and if its actions deviate from the object
or are discriminatory or disproportionate then they would be quashed by the court by
using the doctrine of proportionality.
 In India the doctrine of proportionality was adopted by the Supreme Court of India in the
case of Om Kumar v. Union of India. In this case the Apex court observed that Indian
courts have been using this doctrine since 1950, in cases of legislations violating
fundamental rights enshrined in Article 19(1) of the constitution. Although the Doctrine
has been adopted in India in a very restrictive manner. The European model has not been
adopted fully. The doctrine of proportionality requires a body to maintain balance
between its action and purpose for which the powers have been conferred.

Doctrine of Proportionality: As a Ground of Judicial Review.

 Doctrine of proportionality is a principle that is prominently used as a ground for judicial
review in cases of administrative action. The doctrine was developed in Europe and it is a
vital part of the European administrative law. The doctrine essentially signifies that the
punishment should not be disproportionate to the offence committed or the means that are

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 used by administration to obtain a particular objective or result should not me more
restrictive than that are required to achieve it.

Doctrine of Proportionality: Application.

 “Proportionality is a principle where the Court is concerned with the process, method or
manner in which the decision-maker has ordered his priorities, reached a conclusion or
arrived at a decision.”
 It is a misconception that judicial review on the basis of this doctrine is similar to appeal.
In an appeal the appellate authority is authorized to adjudge the whole matter again,
whereas in the case when an administrative action is challenged on the basis of doctrine
of proportionality, the appellate authority only ensures that whether the procedure was
right or the punishment given was the least restrictive way to fulfil its objective.
 In Indian legal system a restrictive approach has been taken for this doctrine as if a
broader doctrine was adopted then the discretionary powers of the administration will
become redundant. It will allow the judiciary to encroach upon the powers of executive.
The judiciary cannot step into the shoes of executive and take actions on its behalf. Hence
the doctrine adopted in India is perfect to maintain this status. The administrative
tribunals deal with the matter of administrative actions, they act as primary reviewer of
these actions, courts only act as secondary reviewer.

 This position was explained in: R v. Secretary of State for the Home Department
the Lord Bridge in this case held that when convention rights i.e. Fundamental Rights are
invoked then the court will act as a primary reviewer and if non-Convention rights are
involved, the court can only act as a secondary reviewer.
This arrangement does not allow the court to go into the merits of the administrative action.

Doctrine of Proportionality and Wednesbury Reasonableness:

 The concepts of Proportionality and unreasonableness are fused together providing an
adequate rubric for the judicial review of irrationality in administrative law. The principle
of Proportionality can be treated as an aspect resulting out of Wednesdury

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 unreasonableness. This is to say that the Wednesbury test was developed to review an
action which is highly arbitrary and discriminatory.
 The judiciary seemed reluctant to enter into the administrative and review its actions.
Later in the course of time the test of Proportionality came up to review an action which
is not proportional to the desired goal to be achieved by that action. So this would mean
that the administrative action to be arbitrary would have to be Wednesbury unreasonable
first to be disproportionate.
 Wednesbury principle is a tool for challenging administrative action. The way in which
such challenge is made is relevant; and in this respect, the Wednesbury principle is
understood with respect to grounds of judicial review of administrative action. In relation
to this, the ultra vires principle already exists. The ultra vires doctrine refers to an action
which is in excess of the powers of decision making bodies, and the reasoning or
implications of this principle are important insofar as they uphold the sovereignty of
parliament, and the rule of law.
 To have the right to intervene, the court would have to form the conclusion that:
 The corporation, in making that decision, took into account factors that ought not to have
been taken into account, or
 The corporation failed to take account factors that ought to have been taken into account,
or
 The decision was so unreasonable that no reasonable authority would ever consider
imposing it.
 The decision was so unreasonable that no reasonable authority would ever consider
imposing it.
 The court held that the condition did not fall into any of these categories. Therefore, the
claim failed and the decision of the Wednesbury Corporation was upheld. The test laid
down in this case, in all three limbs, is known as the “Wednesbury test”. The term
“Wednesbury unreasonableness” is used to describe the third limb, of being so
unreasonable that no reasonable authority could have decided that way.

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Doctrine of Proportionality: Indian Scenario.
 The concept of proportionality in India is restricted from the broad view as it does not
accord with the traditional common law judicial review. The principle of proportionality
in India is based in the Constitution which ensures the fundamental rights as opposed to
the statutory basis in England.
 Article 14 of the Constitution is one of the main provision under which an administrative
action can be reviewed. Under Article 14, the law or the administrative action has to
satisfy the reasonable test. In the case of Maneka Gandhi v. Union of India , quoting
himself from Royappa case, Justice Bhagwati has read the principle of reasonableness in
Article 14 by the words:
 Any arbitrary action of the administration will be struck down as unconstitutional as it
gives it uncontrolled power and scope for discrimination. The exercise of discretion by
the administration should be guided by the administration itself. If it is not guided then
the judiciary will have to enforce or strike down some actions of the administration as
invalid.
 While testing the validity of the discretionary power under Article 14 due regard should
be given to the importance of the reasonableness and non-arbitrariness of the action. If
the administrative action is unreasonable and arbitrary, it will be struck down under
Article 14.

B.C. Chathurvedi v. UOI [AIR 1995 SC 4374]

 The Three judge Bench has said that while exercising the power of judicial review, the
High Court/Tribunal cannot normally substitute its own conclusion on penalty and
impose some other penalty.
 If the punishment imposed by the disciplinary authority or the appellate authority shocks
the conscience of the High Court/Tribunal, it will appropriately mould the relief, either
by directing the disciplinary authority to reconsider the penalty imposed or to shorten the

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 litigation, it may, in exceptional cases, impose appropriate punishment with cogent
reason, in support thereof.

Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd.
[AIR 2005 SC 2299]
 The Setting aside of awarding of contract on the basis of the term not incorporated in
tender document was held to be not proper, more so when the tender instructions
conferred power on the authority to relax the tender conditions and commercial
considerations were in favour of awardee of the contract.
 The Court reiterated that the power under Article 226 should be exercised in furtherance
of the public interest.

Doctrine of Proportionality: Conclusion

 Though the right of superior Courts to invoke the judicial review is guaranteed by the
Constitution, its content, reach and power, and the balance between various principles are
not enunciated in any provision of the Constitution, but have probably been founded on
various principles enunciated on the basis of notions of fairness which generally permeate
the common law.
*****

STATUTORY REMEDIES.
Injunction: Introduction
An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to permit his servants or agents to do some act, which he
is threatening or attempting to commit, or restraining him in the continuance thereof, such act
being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately
redressed by an action fit law.
For example, if it so happens that a person is demolishing a building you have possible claims
on, you may ask the competent court to order such person to not demolish the building until the
trial for the claim of the building is complete and judgement goes in his favour.

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INJUNCTION: ACTS
 The law of injunction has been provided for by the Specific Relief Act, 1963, and is also
regulated by the Code of Civil Procedure, 1908 in India.

INJUNCTION: TYPES
Generally speaking, there are two types of injunctions,
as mentioned below:
 Temporary Injunction
 Perpetual / Permanent Injunction

TEMPORARY INJUNCTION
 Temporary injunctions, as the name suggests, are the injunctions that are given for a
specific period of time or until the court gives further order regarding the matter in
concern. They can be obtained during any stage of the trial and are regulated by the Code
of Civil Procedure (CPC), 1908.

TEMPORARY INJUNCTION: SEC. 94 of CPC

 Section 94: The section provides for supplemental proceedings, to enable the court to
prevent the ends of justice from being defeated. Section 94(c) states that a court may
grant temporary injunction and in case of disobedience commit the person guilty thereof
to the civil prison and order that his property be attached and sold. Section 94(e) of the
Code enables the court to make interlocutory orders as may appear to it to be just and
convenient.

TEMPORARY INJUNCTION: SEC. 95

 Section 95: If it is found by the court that there were no sufficient grounds to grant the
injunction, or the plaintiff is defeated in the suit, the court may award reasonable
compensation to the defendant on his application claiming such compensation.

TEMPORARY INJUNCTION: ORDER XXXIX

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Rule 1: It enlists the situations when a court may grant temporary injunction. These are:
 Any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
 the defendant threatens, or intends, to remove or dispose of his property with a view to
defrauding his creditors,
 the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit.

Rule 2: It provides that an interim injunction may be granted for restraining the defendant from
committing a breach of contract or other injury of any kind to the plaintiff.

Rule 3: It states that a court shall direct a notice of application to the opposite party, before
granting the injunction to the plaintiff. However, if it seems to the court that the purpose of the
injunction would be defeated by the delay, it may not provide the notice.

Rule 4: It provides for vacation of already granted temporary injunction.

Rule 5: It states that an injunction directed to a corporation is binding not only on the corporation
itself, but also on all members and officers of the corporation whose personal action the
injunction seeks to restrain.

TEMPORARY INJUNCTION: LEADING CASES

M. Gurudas and Ors.
The Hon’ble Supreme Court of India has opined, “while considering an application for
injunction, the Court would pass an order thereupon having regard to prima facie, balance of
convenience and irreparable injury.”

Prima Facie Case:

 Prima Facie literally means, on the face of it.
Martin Burn Ltd. vs. R.N. Banerjee,
2. Balance of Convenience:

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  In the case of Anwar Elahi, the court has clearly explained the meaning of ‘balance of
convenience’. According to the court:
 “... In applying this principle, the Court has to weigh the amount of substantial mischief
that is likely to be done to the applicant if the injunction is refused and compare it with
that which is likely to be caused to the other side if the injunction is granted.”

3. Irreparable Injury:
 ‘Irreparable injury’ means such injury which cannot be adequately remedied by damages.
The remedy by damages would be inadequate if the compensation ultimately payable to
the plaintiff in case of success in the suit would not place him in the position in which he
was before injunction was refused.

PERMANENT INJUNCTION
 A permanent injunction can be granted by the court by passing a decree made at the
hearing and upon the merits of the suit. Once such decree is passed, the defendant is
permanently prohibited from the assertion of a right, or from the commission of an act,
which would be contrary to the rights of the plaintiff.

PERMANENT INJUNCTION: WHEN IT CAN BE GRANTED ??

(1) To the plaintiff in a suit to prevent a breach of an obligation existing in his favour,
whether implicit or explicit. However, in a case where such an obligation arises out of a
contract, the court follows the rules as specified by Chapter II of the Act. Chapter II, under
Section 9 provides that a person may claim relief in respect to a contract, by pleading in his
defense, any of the ground available to him under any law relating to contracts.
In a case where the plaintiff invades or threatens to invade the the plaintiff’s right to, or
enjoyment of, property, the court may grant a permanent injunction where:
 The defendant is trustee of the property for the plaintiff;
 there exists no standard for ascertaining the actual damage caused, or likely to be caused,
by the invasion;
 the invasion is such that compensation in money would not afford adequate relief;
 the injunction is necessary to prevent a multiplicity of judicial proceedings.

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PERMANENT INJUNCTION: LEADING CASES
 Jujhar Singh vs. Giani Talok Singh where a permanent injunction was sought for by a
son to prevent his father who happened to be the Karta of the Hindu Undivided Family
(HUF), from selling the HUF property was set aside. It was not maintainable because the
son, also a coparcener, had got the remedy of challenging the sale and getting it set aside
in a suit subsequent to the completion of the sale.
 On the other hand, granting the injunction sought would allow the son to use the
injunction to prevent the father from selling the property even if he is compelled to do so,
due to legal necessities.

Cotton Corporation Of India vs. United Industrial Bank, an injunction was sought for to
restrain the defendants from presenting a winding-up petition under the Companies Act, 1956 or
under the Banking Regulation Act, 1949, the court dismissed the petition as it was not competent
to grant, as a relief, a temporary injunction restraining a person from instituting a proceeding in a
court not subordinate to it.
 The Court here was of the view that if a perpetual injunction cannot be granted for the
subject matter of the case under Section 41(b) of the act, ipso facto* temporary injunction
cannot be granted.
*by that very fact or act

MANDATORY INJUNCTION: INTRODUCTION

 If the court finds it necessary and within its capability, to compel the performance of an
act, to prevent the breach of an obligation, it may do so granting a mandatory injunction
to the plaintiff, compelling the defendant to perform the requisite acts.

MANDATORY INJUNCTION: DAMAGES IN LIEU OR ADDITION TO INJUNCTION

If the plaintiff claims for any additional damages along with the injunction sought for, either
perpetual or mandatory, or in substitution of the said injunction, the court may award him
such damages, if it thinks fit. If no damages have been claimed, the court may allow the
plaintiff to make the required amendments to the plaint and claim damages.

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  However, it is highly recommended to claim damages in the plaint before submitting it,
as permission for further amendments rests solely at the discretion of the court.
 The dismissal of a suit to prevent the breach of an obligation existing in favor of the
plaintiff bars his right to sue for damages for such breach.

INJUNCTION TO PERFORM NEGATIVE AGREEMENT

 The Court can grant an injunction to not do certain acts, which are prohibited by the
contract to do. The court may do so even if it is unable to compel the performance of the
affirmative terms of the contract, i.e. the terms that requires the defendant to do (perform)
certain acts. However, it is subject to the fact, whether the plaintiff has performed the
terms of the contract binding on him or not. Non performance by the plaintiff dis-entitles
him from obtaining such an injunction.

GROUNDS FOR REJECTION OF AN APPLICATION FOR INJUNCTION

On the following grounds, an injunction cannot be granted:
 To restraint a person from prosecuting a pending judicial proceeding, unless it is to
prevent multiplicity of the proceeding.
 To restraint a person from instituting or prosecuting a judicial proceeding in a court,
where the injunction is sought from a court subordinate to that court.
 To restrain any person from instituting or prosecuting any proceeding in a criminal
matter.
 To prevent the breach of a contract the performance of which would not be specifically
enforced (Illustration: a contract between a master and servant, requiring the servant to
render personal services to the master cannot be specifically enforced by the master or the
servant. Hence, an injunction cannot be granted in this situation)
 Where it is not reasonably clear that an act it nuisance, to prevent such an act on the
ground of nuisance.
 To prevent a continuing breach in which the plaintiff has acquiesced, as the general rule
is that an acquiescence is an implied consent by remaining silent.

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  Where except in the case of breach of trust, equally efficacious relief can certainly be
obtained by any other usual mode of proceeding.
 To restrain any person from applying to any legislative body.
 When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the
assistance of the court.
 When the plaintiff has no personal interest in the matter.

DECLARATION AGAINST THE GOVERNMENT: LIMITATION PERIOD

 Establishing title/possession for a period exceeding twelve years may be adequate to
establish title in a declaratory suit against any individual. On the other hand,
title/possession for a period exceeding thirty years will have to be established to succeed
in a declaratory suit for title against government. This follows from Article 112 of
Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in
regard to suits by government as against the period of 12 years for suits by private
individuals.

 The reason is obvious. Government properties are spread over the entire state and it is not
always possible for the government to protect or safeguard its properties from
encroachments. Many a time, its own officers who are expected to protect its properties
and maintain proper records, either due to negligence or collusion, create entries in
records to help private parties, to lay claim of ownership or possession against the
government. Any loss of government property is ultimately the loss to the community.
Courts owe a duty to be vigilant to ensure that public property is not converted into
private property by unscrupulous elements.
 Many civil courts deal with suits for declaration of title and injunction against
government, in a casual manner, ignoring or overlooking the special features relating to
government properties. Instances of such suits against government being routinely
decreed, either ex parte or for want of proper contest, merely acting upon the oral
assertions of plaintiffs or stray revenue entries are common.
 Whether the government contests the suit or not, before a suit for declaration of title
against a government is decreed, the plaintiff should establish, either his title by

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 producing the title deeds which satisfactorily trace title for a minimum period of thirty
years prior to the date of the suit (except where title is claimed with reference to a grant
or transfer by the government or a statutory development authority), or by establishing
adverse possession for a period of more than thirty years.
 In such suits, courts cannot, ignoring the presumptions available in favour of the
government, grant declaratory or injunctive decrees against the government by relying
upon one of the principles underlying pleadings that plaint averments which are not
denied or traversed are deemed to have been accepted or admitted.
 A court should necessarily seek an answer to the following question, before it grants a
decree declaring title against the government : whether the plaintiff has produced title
deeds tracing the title for a period of more than thirty years; or whether the plaintiff has
established his adverse possession to the knowledge of the government for a period of
more than thirty years, so as to convert his possession into title.

 Incidental to that question, the court should also find out whether the plaintiff is recorded
to be the owner or holder or occupant of the property in the revenue records or municipal
records, for more than thirty years, and what is the nature of possession claimed by the
plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and
occasional; furtive and clandestine; open, continuous and hostile; deemed or implied
(following a title).
 Mere temporary use or occupation without the animus (hostility or ill feeling) to claim
ownership or mere use at sufferance will not be sufficient to create any right adverse to
the Government. In order to oust or defeat the title of the government, a claimant has to
establish a clear title which is superior to or better than the title of the government or
establish perfection of title by adverse possession for a period of more than thirty years
with the knowledge of the government.

*****

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 DECLARATION OF TITLE AGAINST THE GOVERNMENT:
NATURE OF PROOF REQUIRED IN SUITS
 Suits for declaration of title against the government, though similar to suits for
declaration of title against private individuals differ significantly in some aspects. The
first difference is in regard to the presumption available in favour of the government. All
lands which are not the property of any person or which are not vested in a local
authority, belong to the government. All unoccupied lands are the property of the
government, unless any person can establish his right or title to any such land. This
presumption available to the government, is not available to any person or individual.
The second difference is in regard to the period for which title and/or possession have to
be established by a person suing for declaration of title.

*****

PRIVILEGES AND IMMUNITIES IN SUITS OF THE STATE: INTRODUCTION

 Every problem has its own remedy. For the purpose of actions of the administration,
these remedies help in preventing the recurrence the extraordinary legal remedies that is
available to the individual against the illegal of an illegality. However, they do not
provide full redress to the aggrieved individual. Private citizens access to the ordinary
courts and the ordinary legal remedies may be qualified by the existence of certain
privileges and immunities enjoyed by the state.
 These privileges immunities though justified in the days in which they originated, are
hardly justified in a democratic society. However, the state does enjoy and it may be
necessary for it to enjoy certain privileges and immunities. Administrative law is engaged
in the process of redefining such privileges and immunities with a view to reconciling
them with the needs of modern times.
 The Constitution clearly says that the executive power of the Union and of each state
extends to ‘the carrying on for any trade or business and to the acquisition, holding and
disposal of property and the making of contracts for any purpose’. The Constitution
therefore, provides that a Government may sue or may be sued by its name. Similar
provisions to be found in the Code of Civil Procedure. The above provisions do not,

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 however, enlarge or restrict the extent of State liability; they merely provide the method
of redress.

PRIVILEGES AVAILABLE TO THE GOVERNMENT

 IMMUNITIES FROM THE OPERATION OF THE STATUTE: ENGLAND
 IMMUNITIES FROM THE OPERATION OF THE STATUTE: INDIA
 Section 80 (1) provides that no suit shall be instituted against the Government or against
a public officer in respect of any act purporting to be done by such public officer in his
official capacity, until the expiration of two months next after notice in writing has been
delivered in the manner provided in the section. The section is mandatory and admits of
no exception. Thus, the requirement of notice is mandatory. However, it is to be noted
that if a public officer acts without jurisdiction, the requirement of notice is not
mandatory. Its object appears to provide the Government or the public officer an
opportunity to consider the legal position thereon and settle the claim without litigation.

 PRIVILEGES UNDER THE EVIDENCE ACT TO WITHHOLD DOCUMENTS

 PRIVILEGES OF GOVERNMENT AND LIMITATION ACT

 The Government may waive the requirement of notice; the waiver may be express or
implied.
 The requirement of notice causes much inconvenience to the litigants especially when
they seek immediate relief against the Government. To minimize the hardships to the
litigants a new Clause 20 was inserted in Section 80 of the C.P.C by the Civil Procedure
Code Amendment Act, 1970.
 The clause provides that the Court may grant leave to a person to file a suit against the
Government or a public officer without serving the two-month’s notice in case where
relief claimed is immediate and urgent. Before granting this exemption the Court is
required to satisfy itself about the immediate and urgent need.

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  It is to be noted that S.80 of the C.P.C does not apply to a suit against a statutory
Corporation. Consequently in case the suit is filed against the statutory Corporation.
Consequently, such notice is not required to be given in cases the suit is filed against
statutory Corporation.
Section 80 does not apply with respect to a claim against the Government before the
claim Tribunal under the Motor Vehicle Act.

 Section 80 of the C.P.C. does not apply to a writ petition against the Government or a
public officer, the requirement of notice as provided under Section 80 of the C.P.C is not
required to be complied with Section 82 of the C.P.C. also provides privilege to the
Government. According to this section where in a suit by or against the Government or
the public officer, a time shall be specified in the decreed within which shall be satisfied
and if the decree is not satisfied writhing the time so specified and within three months
from the date of the decree.

 Where no time is so specified, the Court shall report the case fro the orders of the
Government. Thus a decree against the Government or a public officer is not executable
immediately. The Court is required to specify the time within which the decree has to be
satisfied and where no such time has been specified, three moths from the date of the
decree will be taken to be the time within which is to be satisfied. If the decree is not
satisfied within such time limit the Court shall report the case for the orders of the
Government
*****

PROMISSORY ESTOPPEL.
Estoppel is a rule whereby a party is precluded from denying the existence of some state of facts,
which he had previously asserted and on which the other party has relied or is entitled to rely on.
Courts, on the principle of equity, to avoid injustice, have evolved the doctrine of promissory
estoppels.
 The doctrine of promissory estoppel or equitable estoppel is firmly established in
administrative law. The doctrine represents a principle evolved by equity to avoid injustice.

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Application of the doctrine against government is well established particularly where it is
necessary to prevent manifest injustice to any individual.
 Estoppel is a rule whereby a party is precluded from denying the existence of some state of
facts, which he had previously asserted and on which the other party has relied or is entitled to
rely on. Courts, on the principle of equity, to avoid injustice, have evolved the doctrine of
promissory estoppels.

 The doctrine of promissory estoppel against the Government also in exercise of its
Government, public or executive functions, where it is necessary to prevent fraud or manifest
injustice. The doctrine within the aforesaid limitations cannot be defeated on the plea of the
executive necessity or freedom of future executive action.

 The doctrine cannot, however, be pressed into aid to compel the Government or the public
authority “to carry out a representation or
promise.
a)which is contrary of law; or
b)which is outside the authority or power of the Officer of the Government or of the public
authority to make.”

 It is to be noted that Estoppel cannot be pleaded against a minor or against statute. Estoppel
does not lie against the Government on the representation or Statement of facts under Section
115 if it is against the statute or Act of the Legislature but it may be applied in irregular act. The
liability of the Government has been extended by the doctrine of Promissory Estoppel.
 Doctrine of Promissory Estoppel is often applied to make the Government liable for its
promises and stopped from going back from the promise made by it. According to this doctrine
where a person by words or conduct and the other person acts on such promise changes his
positive to his detriment, the person who gives such promise or assurance cannot be allowed to
revert or deviate from the promise.
 In India, the courts are invoking this doctrine; In Union of India v. Anglo (Indo) – Afghan
Agencies Ltd. , The doctrine of Promissory Estoppel was applied against the Government. This

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case developed a new judicial trend. The Court upheld the application of Promissory Estoppel to
the executive acts of the State.
 The Court negated the plea of executive necessity. Under the scheme an exporter was entitled
to import raw materials equal to the amount, which was exported. Five lakhs rupees worth goods
were exported by the petitioner but he was given import license for an amount below two lakh
rupees. The Court held that the Government was bound to keep its promise. The scheme was
held to be binding on the Government and the petitioner was entitled to get the benefit of the
scheme.
 The Supreme Court in Century Spinning and Manufacturing Co. Ltd. V. Ulhasnagar
Municipal Council, again extended the doctrine of Promissory Estoppel. In this case this doctrine
was applied against public authorities. The Court has made it clear that this Court will not make
a distinction between a private individual and a public body so far as the doctrine of Promissory
Estoppel is concerned.
 In short, if the Government makes a promise and promisee acts upon it and changes his
position, then the Government will be held bound by the promise and cannot change its position
against the promisee and it is not necessary for the promisee to further show that he has acted to
his detriment. For the application of the doctrine of Promissory Estoppel it is not necessary that
there should be some pre-existing contractual relationship between the parties.

 In Delhi Cloth and General Mills v. Union of India, the Supreme Court has held that for the
application of the principle of Promissory Estoppel change in position by acting on the assurance
to the promise is not required to be proved.

 However, the judicial opinion is that it cannot be invoked against a statutory provision or to
support an ultra vires act or to compel the Government or a public authority to carry out a
promise, which is contrary to law, or ultra vires its powers.

 The doctrine of Promissory Estoppel is not applied in the following conditions:

1. Public Interest,
2. Representation against law,
3. Ultra vires promise or representation,

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4. Fraud,
5. Fraud on the Constitution.

Public Interest:
The doctrine of Promissory Estoppel is an equitable doctrine and therefore it must yield place to
the equity if larger public interest requires. It would not be enough to say that the public interest
requires that the Government would suffer if the Government were required to honor it. In order
to resist its liability the Government would disclose to the Court the various event insisting its
claim to
be exempt from liability and it would be for the Court to decide whether those events are such as
to render it equitable and to enforce the liability against the Government.

Representation against law:

The doctrine of Promissory Estoppel cannot be applied so as compel the Government or the
public authority to carry out a promise, which does law prohibit.

Ultra vires promise or representation:

If the promise or representation made by the officer is beyond his power, the State cannot be held
liable for it on the basis of the Principle of Promissory Estoppel.

Fraud:
The doctrine of Promissory Estoppel is not applied in cases where the promise from the
Government is obtained by fraud.

Fraud on the Constitution:

The doctrine of Promissory Estoppel is not applied in cases when the promise or representation
is obtained to play fraud on the Constitution and enforcement would defeat or tend to defeat the
Constitutional goal.

*****

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RIGHT TO INFORMATION: What is RTI ?
 Provides a legal framework of Citizens democratic right to access to information under
the control of Public Authorities.
 An Act to provide for setting out the practical regime of right to Information for citizens
to secure.
 To Promote Transparency and accountability in the functioning of every public authority.

Right To Information: Public Authority.

Public Authority means any Authority or Body or Institution established or constituted:
 By or under the Constitution
 By any other law made by parliament
 By any other law made by State Legislature
By notification issued or order made by the appropriate Government

Right To Information: Information.

 Records
 Documents
 Memos
 Opinions & Advices
 Press Releases
 Circulars, Orders & Logbooks
 Contracts
 Reports, Papers, Samples & Models

Right To Information: Applicability.

 The law talks of Access To Information under the control of public authorities. That
means that any citizen in India can approach any “Public Authority” of a body of
Government or “Instrumentality of State” for the same.
 There is a 30 day limit for a reply. In fact the ambit was widened even further and made
applicable for bodies “owned, controlled or substantially financed” by the Government.

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  Article 370 of the Constitution confers a special autonomous status to Jammu & Kashmir.
And it is out of the ambit of the RTI too. However it’s not that they don’t have access.
They have to rely on the Jammu and Kashmir Right to Information Act of 2009.

Right To Information: When Enacted ?

 The RTI act 2005 was enacted by permission and authority of his Excellency, President
of India. This act was enacted by the parliament on 15.06.2005 and notified in the
Gazette of India dated 21.06.2005 and came fully into force on 12 October 2005. Every
day, over 4800 RTI applications are filed. In the first ten years of the commencement of
the act over 1,75,00,000 applications have been filed.

Right To Information: Need For RTI Act.

It helps to promote openness, transparency and accountability in the working of every public
authority.
 Reduces Corruption.
 Prevent Administrative Arbitrariness.
 Bride the gap between providers and recipient of public services.
 Make citizens part of decision making.
 Make administrative responsive
 Strengthen the foundations of democracy.

Right To Information: Request For Obtaining Information.

A person, who desires to obtain any information under this Act, shall make a request in writing
or through electronic means in English or Hindi or in the official language of the area in which
the application is being made, accompanying such fee as may be prescribed to— (a) The Central
Public Information Officer or State Public Information Officer, as the case may be, of the
concerned public authority.

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Right To Information: Request For Obtaining Information.
The Central Assistant Public Information Officer or State Assistant Public Information Officer,
as the case may be, specifying the particulars of the information sought by him or her provided
that where such request cannot be made in writing, the Central Public Information Officer or
State Public Information Officer, as the case may be, shall render all reasonable assistance to the
person making the request orally to reduce the same in writing.

Right To Information: Exemptions From Disclosure.

 National Security
 Contempt of Court
 Parliamentary Privilege
 Trade Secrecy
 Foreign Government
 Safety of Informer in Law Enforcement
 Investigations
 Cabinet Papers
 Privacy

Right To Information: Very First RTI Application.

• On October 12, 2005, a person called Shahid Raza Burney submitted India’s first ever
Right To Information application to a police station in Pune and thus we entered the RTI
age.

Right To Information: Success

 Overall it has been hugely successful and has helped citizens get crucial information. One
of the biggest successes has been getting information in the Adarsh scam. It also helped
expose corruption in the Public Distribution System in Assam.
 While there are national and State level scams, it has helped unearth hundreds of
wrongdoings at the local level Such as- 2G Scam (Rs. 1,76,645 crores), Commonwealth
Games - Diversion of Dalit Funds (Rs. 5,27,723.72 crores worth of funds), Indian Red
Cross Society Scam etc.

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Right To Information: RTI Deaths.
 While RTI activism (the policy or action of using vigorous campaigning to bring about
political or social change) became an industry, attacks on RTI activists followed. The
number of such attacks now number hundreds and dozens have been killed. •Lalit Mehta
was exposing a NREGA scam and was killed in 2008. •Satish Shetty was exposing land
scams in Maharashtra and was stabbed to death in 2010. •In the same year Amit Jethwa
was shot in the Ahmedabad High Court complex. He was exposing a mining scam. There
are many such stories which talk of the bravery of RTI activists.

Right To Information: Fee And Charges.

 Application Fees- Rs, 10/-
 In the Form of Electronic Media, Floppy/CD etc.- Additional charges applicable.
 Inspection charges of relevant files, documents and records- >> No fee for first hour of
inspection. >> Rs. 5/- for every subsequent hour or fraction thereof.

Right To Information: Government Department & Portal.

 Right to Information Act 2005 mandates timely response to citizen requests for
government information. It is an initiative taken by Department of Personnel and
Training, Ministry of Personnel, Public Grievances and Pensions to provide a–
RTI Portal Gateway to the citizens for quick search of information on the details of first
Appellate Authorities, PIOs etc. amongst others, besides access to RTI related
information / disclosures published on the web by various Public Authorities under the
government of India as well as the State Governments.

Right To Information: Website & Contact Details.

 http://rti.gov.in
 Contact : Director(IR) Room No.279A, North Block, New Delhi - 110 001;
Email: [email protected]
 Under Secretary(IR) Room No.281, North Block, New Delhi-110 001;
Email: [email protected]
*****

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MALICIOUS PETITION.
 If the petition is filed under Article 32 in the Supreme Court is found to be malicious or
ill motivated, it may be dismissed by the Supreme Court.
*****

MISREPRESENTATION OR SUPPRESSION OF MATERIAL FACTS

 When the petitioner is found to have made clear misrepresentation as to material facts or
suppression of material facts, the Supreme Court may dismiss the petition at any stage.
*****
INFRUCTUOUS PETITION
 Infructuous means fruitless. If the petition under Article 32 is found to be infructuous or
fruitless or unfruitful, it may be dismissed by the Supreme Court on that ground.
 For example, if a petition under Article 32 is filed in the Supreme Court for the writ of
habeas Corpus and the detenu has been released during pendency of the proceedings, the
petition may be dismissed on the ground of its having become infructuous. [Mohit v.
D.M., AIR 1974 SC 2237]
 Existence of adequate Alternate Remedy
 Existence of an alternative remedy does not bar the Supreme Court to entertain a petition
under Article 32.
 However, the Supreme Court has held that in the case of adequate alternate remedy, it
may exercise its discretion to refuse to entertain a petition filed under Article 32.

*****
EXISTENCE OF ADEQUATE ALTERNATE REMEDY: LEADING CASE
BALCO Employees Union v. Union of India [AIR 2002 SC 350]
 The Court has refused to entertain the writ petition filed under Article 32 on the ground
of alternative remedy available to petitioners.
 The Court held that the petitioners have adequate remedy open to it under the Acts under
which notices were issued and in appropriate case, can approach the High Court under
Article 226 of the Constitution.
*****

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DOCTRINE OF PRECEDENT / STARE DECISIS: MEANING.
 Case law, so called, or the decisions of the courts serve as a very important source of law,
especially in countries following the common law system of adjudication. In countries
that follow the common law system, the judgments of the higher courts are treated as
binding on all subordinate courts. This concept of treating judgments of superior courts as
binding is called the doctrine of precedent or stare decisis.

Doctrine Of Precedent / Stare Decisis: Application In India.

 The doctrine of precedent is expressly incorporated in India by Article 141 of the
Constitution of India, 1950. Article 141 provides that the decisions of the Supreme Court
are binding on all courts within the territory of India. Although there is no express
provision, but by convention the decisions of a High Court are binding on all lower courts
within the territorial jurisdiction of that High Court. Similarly, a decision of a higher
Bench , is binding on the lower Bench.
*****

RATIO / RATIONES DECIDENDI: MEANING.

 Ratio decidendi is the Latin term meaning “the reason for the decision,” and refers to
statements of the critical facts and law of the case. These are vital to the court’s decision
itself. The binding part of a judicial decision is the ratio decidendi.

Ratio / Rationes Decidendi: Determining The Ratio in a Case.

 The justification for this approach is that debate or arguments and the application of the
judicial mind are over resolving the issues before the court and not merely the facts.
 Although there is no universal method of determining the ratio of a case, the
indeterminate nature of the concept holds wide scope for judicial choice. The exercise of
judicial choice, however paradoxically (contradiction), is restricted by justice and fairness
in the exercise.
*****

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OBITER DICTA: MEANING
 Obiter dicta are additional observations, remarks, and opinions on other issues made by
the judge. These often explain the court’s rationale in coming to its decision and, while
they may offer guidance in similar matters in the future, they are not binding. In reading a
court’s decision, obiter dicta may be recognized by such words as “introduced by way of
analogy,” or “by way of illustration.” Obiter dicta may be as short as a brief aside or a
hypothetical example, or as long as a thorough discussion of relevant law. In either case,
the additional information is given to provide context for the judicial opinion.

*****
JUDICIAL CONTROL OF ADMINISTRATIVE DISCRETION.
ADMINISTRATIVE DISCRETION.
Meaning.
 Rule of law demands that Govt. should be of laws and not of men. However, in the Govt.
vast administrative machinery, officers, while discharging their functions should
invariably have "discretions" to exercise their powers effectively. These administrative
functions are general and varied. Administrative discretion means the "determination"
reached by the Authority, on facts (ascertained by it), on consideration of available
evidence, and on the basis of policy, efficiency and expediency of the Department.

Administrative Discretion and Judicial Review.

 The general rule is that the courts will not interfere with the exercise of discretion, by
administrative authorities (Ranjit Thakur v.Union). However, they do interfere in public
interest, when there is abuse or lack of jurisdiction. According to the Courts, the
"discretion" should be fair honest, based on reason & justice and should not be arbitrary,
or unjust fanciful or exercised with mala fides.
 "Judicial Review" is also the basic structure of the constitution (Minerva Mills v. Union
of India 1980).
 In the recent landmark cases in England:
Anismatic Ltd v. Foreign Compensation Commission; and Tameside case, the House
of Lords has widened the scope of judicial review of administrative discretion.

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Administrative Discretion and Judicial Review: Scope
 The Scope of judicial review of administrative discretion is very extensive; it not only
deals with abuse or excess of discretion, but extends to all areas of failure to exercise
discretion e.g. non-application of mind, deciding under dictation, etc. Broadly, the review
may be dealt with under the following heads:
(1) Abuse of or in excess of discretion
(2) Malice in fact or factual malafides
(3) Fraud on state or colorable exercise of power
Non exercise of discretion.
 The administrative authority may fail to exercise discretion by non application of mind,
or, by deciding on the dictates of others, or by sub delegating this power to another. In all
these circumstances, the decision is Ultra vires.
 The authority should apply his mind to the facts & circumstances of the case on hand. If
he acts mechanically, without a sense of responsibility, there is failure of exercise of
discretion.

Jagannath v. State of Orissa

 There was non-application of mind of Home minister when the detention order was based
on two grounds, the first one or the second. His order was quashed.

Barium Chemicals Ltd. v. Company Law Board

 The Central Government could issue an order of Investigation, under the Companies Act
on the ground of fraud. The Government issued order but no circumstances had been
stated, on which opinion was formed. Order was quashed.
 If the authority vested with power under a statute simply acts under the dictators, of a
superior authority, he has not taken his own decision, as required by the statute, and
hence his decision is bad.

Abuse of or in excess of discretion.

It is essential that the authority should exercise its powers within the limits of the Statutes or
Rules, otherwise it would be ultra vires on the ground of abuse or excess of jurisdiction.

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Dr. Markose, an authority on Administrative Law, has appointed reference to say, there is Abuse
of power when the mode of exercising valid power is unreasonable or improper.
 He quotes an example: “If a new and sharp axe presented by Father Washington, i.e,
Congress, to young George (Statutory authority), to cut timber from father's compound,
is, tried on the father favorite apple tree, there is a clear abuse of power! Another classical
example is: Red haired teacher dismissed, because she has red hair! This is unreasonable,
based on irrelevant considerations, bad faith, colorable exercise of power -" all run into
one another”.
 In A.G. v. Fulham Corporation, the Statute had empowered the corporation to run bath
houses and wash houses for the benefit of the public. The Corporation opened a public
laundry. This was held excess of jurisdiction and hence ultra vires.

Administrative Discretion: Mala Fides.

 The authority should act with bona fides i.e., in good faith properly and lawfully. Mala
fide means malice ill-will, corrupt motive, vengeance or fraudulent intention. This may
take many forms and may be express or implied. There may be malice in fact or malice in
law. The exercise of power with malafides vitiates the proceedings and hence would be
void.
Malice in fact or factual malafides:
 This means the action taken is based on some personal vengeance or motive or ill will: or
with dishonest intention.
Commissioner of Police v. Govardhandas, the Commissioner had granted a licence to
construct a theatre. But, under the directions of the State Government, he cancelled it. The
Supreme Court quashed the cancellation order.

Administrative Discretion: Leading Cases.

Shivraj Patil v. Mahesh Madhav: Here, the Maharastra Chief Minister's daughter Ms.
Chandrakala Patil's M.D. marks card had been tampered to her advantage, at the behest of the
C.M. This was evident from circumstances. Commenting on the deplorable decline of moral
values at high levels, the Supreme Court quashed the result of M.D. exam of the daughter of
C.M.

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In Express Newspaper v. Union of India, the Union Government’s notice issued to Sri.Ram
Goenka, Chairman of Express Newspaper entry by Government by terminating lease of land
given to him was held to be mala fides and politically motivated and hence void.

State of Punjab v. Gurdial Singh, the Chief Minister had engineered with vengeance and ill
will to acquire lands: Held mala fides.
State of Haryana v. Bhajanlal, it was held that prosecution against the C.M., of the State under
the provision of Prevention of Corruption Act was without any malice and hence proceedings
were not quashed.

Administrative Discretion: Malice In Law.

Zanida Bai v. State of M.P.
According to the Supreme Court, if power is exercised without just or reasonable cause or alien
or different from the purpose of the statute, it would be malice in law and void.

Fraud on state or colorable exercise of power.

 When power is exercised under "Color" or guise of legality but, in reality the purpose of
the statute is different, it amounts to "colorable" exercise of power.
1. Somavanti v. State of Punjab
2. Vora v. State of Maharashtra.

Bangalore Medical Trust v. Muddappa

Here, land preserved for Public Park was allotted at the instance of CM to a private nursing
home. Supreme Court held this was "colourable" and quashed the order of allotment.

Administrative Discretion: Unreasonableness.

 This includes many things. Taking into consideration irrelevant facts, omitting relevant
facts, exercising power for a collateral purpose etc. e.g. "fixing wages as it may think fit"
in the statute does not mean the authority may fix Rs 3 per day. It should mean
"reasonable think fit". Hence, if the decision of the authority is "perverse", "outrageous"

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 or so absurd that the person "must have taken leave of his senses" (Lord Scarman in
Notinghamshire case), it is void and Ultra vires.

The House of Lords in the recent Tameside case ruled that if the statute says “if the minister
is satisfied” it means “if reasonably satisfied”; that means that though subjective satisfaction
of the authority is to be based, it should not be on some personal opinion but should be on
objective grounds from which reasonableness could be inferred." This is a landmark decision
on judicial control
*****
FUNDAMENTAL RIGHTS AND DISCRETIONARY POWER.
 Fundamental rights control the executive and legislative powers of the government. And
it has also the control over the administrative discretion. No Law may provide
administrative finality, because court has jurisdiction to check the administrative
discretion. If discretion is against fundamental rights it must be void and declared
unconstitutional by the court. Court will focus on some protective principles when it may
be necessary during exercise discretionary power in respect of fundamental rights.
 Discretion can be controlled in a limited jurisdiction with the effect of Fundamental
rights. Court has also time to time discuss on the legality of such laws, which provide
discretionary power. To fulfill this object Court shall view the summary and making
procedure of such law. If Court finds these laws against constitution, it will be declared
unconstitutional. Administration cannot violate article 14 & 19 when they will exercise
discretionary powers.

LIABILITY OF THE STATE.

Tortious Liability Of The State: Origin & Development.
 The English maxim "The King can do no wrong" had its sway in England. But, the
Crown was made liable since the Crown Proceedings Act, 1947, for tortious and
contractual obligations. In India, during the time of the East India Company, the
Company was held liable for the tortious acts of its servants.
(P&O Steam Navigation Co v. Secretary of State).

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Tortious Liability Of The State: India.
 Art 294(b) provides that the Union or State Government is liable for any act arising out of
any contract or otherwise. Here, otherwise includes tortious liability. How far Union or
State is liable is made clear in Art.300(l). According to this, extent of liability is the same
as that of the Dominion of India and the Provinces, before the commencement of the
Constitution. Hence, the State is liable for tortious acts of its servants. However, if the
state function is Sovereign, it is not liable. Hence liable for non-Sovereign functions.

Tortious Liability Of The State: Leading Cases.

Peninsular and Oriental Steam Navigation Co. V. The Secretary of State (1861)
 A Servant of ‘P’, was traveling in a coach through the Government's dockyard(‘D’). Due
to the negligence of D's servants, a heavy piece of iron carried by them fell and the horse
of the coach was injured. ‘P’ used ‘D’. It was held that the maintenance of the dockyard
was a non sovereign function, and hence, the secretary of State was liable.

Rup Ram v. State of Punjab

 ‘P’, a motor cyclist was seriously injured when the driver of a P.W.D., truck dashed
against him. It was held that the Government was liable. The Government's argument that
at the time of the accident, the driver was carrying materials for the construction of a
bridge and that this was a sovereign function and hence, the State was not liable was
rejected by the Court.

State of Rajasthan v. Mrs.Vidyavati

 Vidyavati's husband died of an accident caused by the Government driver who was
driving negligently the Government jeep from the garage to the office. Vidyavati sued the
Government, for compensation. Held, the State is liable.

Kasturilal. v. State of U.P.

 A was arrested on suspicion of having stolen gold. Gold so seized from him was
deposited in police Malkhana. A was acquitted. In the meanwhile, the Head Constable

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 had stolen the gold andescaped to Pakistan. A sued the Govt. for the return of the gold or
for compensation. Gajendragadkar J held, that the State was not liable.

Reasons:
i) The Police Officers were within their statutory powers.
ii) The Authority of the police in keeping the property (gold) was a 'Sovereign function'.
Held, Government not liable for the act done in the exercise of sovereign function.
Comment:
 This decision is not satisfactory as the concept of Sovereign function is
extended beyond limits. The Supreme Court itself has suggested that the
remedy is to make a suitable law to give-protection to individuals in such
cases. No such law has been made so far.

Basavayya v. State of Mysore (1977)

 In a case of theft, property worth Rs.10,000/-was recovered and kept in police custody.
This was stolen from custody. The Supreme Court held that payment should be made to
the owner, who had claimed the property.

State of Gujarat v. Memon Mohamed

 Customs Authorities seized certain items, on the ground that the goods were smuggled.
Against the seizure order, the party had made an appeal. When this appeal was pending
the goods were disposed of under the order of a magistrate. But, later the appeal was
allowed, and seizure order was set aside, and, the authorities were directed to return the
goods. The Supreme Court has held that the Government was a "bailee", and hence was
bound to return the goods.

Sovereign and non-Sovereign functions:

 The distinction between these two drawn by Courts, in Kasturial's case has become thin,
and, in many cases after that decision the Supreme Court has held that the State was
liable. Hence, the ratio of Kasturilal's case is very much limited and the State is liable for
tortious obligations.

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CONTRACTUAL LIABILITY OF THE STATE: ORIGIN & DEVELOPMENT
 In England the concept "The King can do no wrong" had its sway: All the Courts in
England were under the Crown and hence he could not be sued. After the passing of the
Crown Proceedings Act, 1947 by the Parliament, the Ministers and Government would be
liable for contractual (and tortuous) obligations.

 In India the East India Company was held liable in Mudalay v. Morton. The Government
of India Act, 1935 had expressly made Government liable for contractual violations
under Section l75(3). This is reproduced in Art 299(1) of the Constitution.

*****
CONTRACTUAL LIABILITY OF THE STATE: GOVERNMENT LIABILITY IN
CONTRACTS
Power or Authority to contract:
 Art.298: The Executive power of the Union or of State extends to carrying on any trade
or business and to the acquisition, holding and disposing of property and also to the
making of contracts for any purpose. However, the Government will be liable only if the
contract is within the scope of Art 299(1).
 The Objective of Art. 299(l) is to safeguard the Government and not to saddle the
Government with obligations, which are made by unauthorised officers or in excess of
authority. Saving public funds is essential. Hence, if the contract is invalid, the
Government cannot later ratify and make it valid. (Malamchand v. State of M.P.)The
reason is that when there was no contract at all, the question of ratification does not arise.

Doctrine of Unjust enrichment:

 From the interpretation of Art 299(1) by the Courts, it is evident that the contract will be
declared invalid by the Courts, if any one of the three essentials is not complied with but
this may prove harsh and unjust in genuine cases. Hence, the Courts have applied the
doctrine of "unjust enrichment" in such circumstances, in the interest of justice.

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  This is in Section.70 of the Indian Contract Act, 1872 (quasi contractual liability).
Hence, if the contract comes within the scope of Section.70, the affected party is entitled
to claim compensation from the Government. The Government cannot derive a benefit or
retain money of the other party and claim immunity by saying that the contract is invalid
and hence it is not liable. In such circumstances the Courts will award, compensation to
the affected party to prevent unjust enrichment of the state at the cost of the aggrieved
party.

The Conditions to be fulfilled for unjust enrichment are:

(i) The person should lawfully do or deliver something to the other;
(ii) He should not have done it gratuitously (i.e., not done freely);
(iii) The Other party should have enjoyed or derived benefit thereof.

Contractual Liability Of The State: Leading Cases.

State of W.B. v. B.K. Mondal
In this case, a Government officer ordered for the Construction of a building for the Government
office as per the rules of the Department. The Contractor completed the building. Government
officer took possession and began using it. But, no payment was made. The Government argued
that as the contract was not according to Art. 299(1), it was “no contract”". The Supreme Court
held that there was no contract.
 However, it held that the Government was liable to pay compensation, under Section.70
of the Indian Contract Act i.e., for unjust enrichment. Thus, if the contracts fails under
Art.299(l) the Courts with a view to preventing injustice have provided the remedy under
Section.70 of the Indian Contract Act, 1872.

Art 299(1) prescribes certain essential requirements: -

 The Contract made in exercise of executive power, must be expressed to be made by the
President or the Governor as the case may be.
 The Contract is to be executed by persons and in such manner as the President or
Governor directs or authorises.
 The Contract is to be executed on behalf of the President or the Governor.

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The Contract by the President or Governor:-
 Though the contract should be in writing and to be executed as per Art 299(1) the courts
have held that writing is not essential in all circumstances. In Chatturbhuj v. Parashram,
the Supreme Court held that a contract could be oral, or may be by correspondence; in an
emergency, a contract may be made by Government, without following the "ponderous
legal document couched in a particular form". A Contract made by correspondence was
upheld in Union of India v. Ralia Ram (Tender case).

Contract by authorized person:

 The contact should be signed by the officer of the Government, who is duly authorised by
the President or Governor. If not so authorised, the contract is not enforceable. In Union
of India v. N.K.(P) Ltd, the Director had been authorised to enter into contract, but the
secretary had signed on behalf, of the President of India. Held, there was no authority and
hence invalid.

Name of the President or the Governor:-

 It is essential that the Government contract should be made by the officer in the name of
the President or Governor. It is generally expressed in agreements as “on behalf of” - If
this is not done then the contract is invalid.

Bhikaji Jaipuria v. Union of India

A contract had been made by a firm with Railways for supply of food grains. When the same
was supplied, the Railways refused to take delivery. The plea of the Government that the
Railway Divisional Superintendent had no authority to sign as per rules, was rejected by the
Supreme Court. Power may be granted, otherwise than by rules, it held.

Karamshi v. State of Bombay

Here, Government agreed with Karamshi for supply of water to his "Cane farm". There were two
letters but no contract as required by Art.299(l).Held: contract invalid.

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Director General, Factories v. State of Rajasthan
The I.G. had signed but it was not "on behalf of Governor". Held Contract invalid.

*****

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 UNIT - 4
OMBUDSMAN, LOKPAL, LOKAYUKTA AND
CENTRAL VIGILANCE COMMISSION
Ombudsman:
i) Origin:
The year was 1713 and in this year the King of Sweden, King Charles XII was in a situation of
war with Russia and during this point of time the King in order to keep a check on the working
of the public servants came up with an office named “Hogsta Ombudsmannen”.

However in the year 1719 the name of this office was changed to “Justitiekansler” which meant
Chancellor of Justice. Officially the institution of ombudsman was inaugurated in the year 1809
in Sweden. This institution did not become very famous till it was adopted by Denmark.

The necessity of ombudsman is traceable to the deficiencies in parliamentary system of

administration like wrong decisions, mal-administration, corruption of public officials etc. The
office of Ombudsman was established in Finland, Denmark, Norway, U.K. and other States. In
U.K. the equivalent office is that of the ‘Parliamentary Commissioner’ established in 1967. The
experiment was a success, in these countries.

ii) Status and functions:

He is the people's Watch-dog. His jurisdiction extends to all actions of the public officials. The
present position is that Ombudsman is appointed for 4 years by a Special Committee consisting
of Parliamentarians. The main qualifications are his outstanding integrity and proved abilities in
his job. He receives complaints, makes the investigation. He has powers to reprimand the
blameworthy officials and criticise their conduct in his Report to the Parliament. Frivolous and
baseless complaints are rejected by him, with reasons. He has jurisdiction over judges also.

iii) Lokpal:
One of the recommendations of the Administrative Reforms Committee there is absolute need
for the establishment of such an office of Ombudsman. The equivalent of Ombudsman is Lokpal,
In order to meet the grievances of citizens and to provide an easy, quick and in-expensive

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machinery to meet such grievances, the office of Lokpal is to be established by an Act of the
Parliament.

iv)Lokayukta:
Lokpal is for the Centre. The Lokayukta is for the States in India. Each State may make law to
establish the office of the Lokayukta. Maharashtra established such an office in 1977. Karnataka
has recently established an office.

v) Nature:
1. He should be demonstrably independent and impartial.
2. His appointment should be apolitical. His status should empower him to investigate and to
proceed directly.
3. His proceedings should not be subject to judicial scrutiny.
4. He should have an independent office with powers not controlled by the executive.

vi) Appointment:
He is appointed by the President of India on the advice of the Prime Minister, in consultation
with the Chief Justice of India and the Leader of Opposition in Lok Sabha. On appointment, he
becomes non-partisan. His status and salary are the same as that of the Chief Justice of India.

vii) Removal:
The Procedure is the same as in the case of the removal of the Judges of the Supreme Court.
[Art.124(4)]. This provides much independence, freedom to act without aspiring for any favours.

viii) Functions:
He has the investigating powers to investigate into any action of Minister on receipt of a written
complaint or suomoto relating to -
1. Mal-administration.
2. Undue exercise of power.
3. Corruption.

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Where corruption is established against the Minister, Lokpal may bring to the notice of the Prime
Minister or the Chief Minister and proceed. He submits annual reports.

ix) Immunity:
The Lokpal is immune from any suit, prosecution or other proceedings in respect of official acts
done in good faith, under the Act.
*****
OMBUDSMAN IN NEW ZEALAND.
 The Office of the Ombudsman was established in 1962 under the Parliamentary
Commissioner (Ombudsman) Act 1962. The term Ombudsman is Swedish and basically
means "grievance person”.
 The primary role of the Ombudsman in New Zealand is to investigate complaints against
government agencies. In 1983 the responsibilities were extended to include investigation
of agencies that fail to provide information requested in accordance with the Official
Information Act. The Ombudsman also has responsibility to protect whistleblowers and
investigate the administration of prisons and other places of detention.
 The Ombudsmen Act came into force in 1975. This allowed for the appointment of
additional Ombudsmen in addition to the chief Ombudsman and extended the role to
include local government agencies.
 In 1983, the Official Information Act required government agencies to respond to
requests for information (known as OIA requests) and the Ombudsman was given the
task of investigating complaints against Ministers of the Crown and central government
agencies when requested information was not supplied in a timely manner. In 1988 the
Ombudsman's powers were extended to decisions made by local government agencies as
well.
 In 2001, the Protected Disclosures Act (commonly known as the “whistle-blower”
legislation) was passed. This makes the Ombudsman responsible for "providing advice
and guidance to any employee who has made, or is considering making, a disclosure
about serious wrongdoing in their workplace (either public or private sector)”. In 2005 all
crown entities were brought within the Ombudsman's jurisdiction under the Ombudsmen
Act and Official Information Act.

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OMBUDSMAN IN ENGLAND.
In the England, a post of Ombudsman is attached to the Westminster Parliament (this term comes
from the Palace of Westminster, the seat of the British Parliament) jurisdiction extending to all
departments of the central government and other government institutions. The office of the
Parliamentary Commissioner for Administration was created in 1967, covering the activities of
central government departments.
A separate (National) Health Service ombudsman was subsequently created, but this office
has to date always been held by the same person and the two offices are usually referred to as the
Parliamentary and Health Service Ombudsman.
 This Ombudsman will usually investigate complaints referred to him or her by a Member
of Parliament where there has been evidence of “maladministration” having occurred
which has resulted in an "unremedied injustice".
 Complaints to the Ombudsman are subject to a "time bar" – this means that the
Ombudsman may determine a complaint to be out of jurisdiction if too much time has
passed between the event or course of events being complained about and the complaint
being received by the Ombudsman.

*****
OMBUDSMAN IN INDIA.
 In the year 1966 a commission was set up named the Administrative Reforms
Commission and this commission recommended that an institution based on the lines of
an ombudsman is necessary in India.
 Since the governments have yielded so much power that can lead to its abuse, it
eventually leads to the advent of the ombudsman in India.

LOK PAL.
 A crucial change with reference to the Lokpal Bill came in the year 2011 and it was in
this year that the Lokpal Bill was passed and it eventually led to the establishment of the
institution of Lokpal at the Centre and Lokayukta at State level.

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  Another important feature of this Bill is that the form of the current Bill has been arrived
at after it went through numerous recurring rounds of consultations and discussions with
all the interested parties which also included the society at large.
 Sec. 63 of The Lokpal and Lokayuktas Act, 2013 states that all States in the country are
mandated to set up a Lok Ayukta within a year of the commencement of the Act. The Act
came into effect in January 2014.
 The Lokpal consists of one Chairperson and eight members and these members are
selected through the screening of two committees and these committees are: Selection
Committee and Search Committee.
 The Selection Committee has the core function of selection and final say in the matter
and it comprises of five prestigious office-bearers as members, viz.,
 The Prime Minister,
 The Speaker of the Lok Sabha,
 The Leader of Opposition in the Lok Sabha,
 The Chief Justice of India (CJI) or a judge of the Supreme Court nominated by the
CJI, and
 One eminent jurist, as recommended by the other four members of the committee.
 Before selection by the committee above, another group of seven members is
constituted, called the Search Committee.
 An essential function of this committee is to shortlist a panel of eligible candidates for the
post of Chairperson and members of the Lokpal, which is then put before the Selection
Committee.
 The Selection Committee then decides upon this proposed panel by the Search
Committee.

LOK PAL.
 A Peculiar feature of the Search Committee and that of the Lokpal is that, half of the total
members of each should be persons belonging to the Scheduled Castes, the Scheduled
Tribes, Other Backward Classes, Minorities and Women.
 It comprises of a chair person and 8 members where 4 members (50%) are judicial
members who is or has been a Judge of the Supreme Court or a Chief Justice of a High

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 Court while other 4 members (50%) are non-judicial members are people of impeccable
integrity and outstanding ability having special knowledge & expertise of not less than
twenty-five years in the matters relating to anti-corruption policy, public administration,
vigilance, finance including insurance & banking, law & management.

LOK PAL COMPOSTION:

 Pinaki Chandra Ghose, Chairperson
Judicial Members:
Dilip Babasaheb Bhosale, Pradip Kumar Mohanty,
Abhilasha Kumari, Ajay Kumar Tripathi
Non-Judicial Members:
Dinesh Kumar Jain, Archana Ramasundaram, Mahender Singh,
Indrajeet Prasad Gautam,
vacant, Secretary; vacant, Director of Inquiry;
vacant, Director of Prosecution

LOK PAL: WHO CANNOT BECOME CHAIRPERSON ??

The following persons cannot become chairperson of Lokpal:
 MPs and MLAs Persons convicted of any offense involving moral turpitude ;
 Less than 45 years of age
 Members of Panchayats or Municipality ;
 A person who was removed or dismissed from the public service;
 A person who holds any office of trust / profit; if so, he would need to resign from
Lokpal;
 A person who is affiliated to a political party ;
 Carries on some business / profession; if so, he would need to quit some business.

LOK PAL: TERM OF OFFICE

 The term of office for Lokpal Chairman and Members is 5 years or till attaining age of 70
years.

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  The salary, allowances and other conditions of service of chairperson are equivalent to
Chief Justice of India and members is equivalent to Judge of Supreme Court.
 If the person is already getting the pension (for being a former judge), the equivalent
pension amount will be deducted from the salary
 The source of salary for Lokpal and Members is Consolidated Fund of India.
 If the chairperson dies in office or has resigned from the post, President can authorise the
senior-most Member to act as the Chairperson until new chairperson is appointed. If
chairperson is not available for certain functions due to leave, his job will be done by
senior most member.

LOK PAL: POST RETIREMENT JOBS

Once a Lokpal chairperson / member has ceased to be so, he cannot take
up the following jobs:
 He cannot be reappointed as chairperson / member of Lokpal Cannot take any diplomatic
assignment Cannot be appointed as administrator to a Union Territory
 Any constitutional / statutory post in which appointment is made by President
 Any other office under the government of India
 He cannot contest any of the elections such as President / Vice President / MLA / MLC/
Local bodies for 5 years after relinquishing the post

LOK PAL: OFFICIALS

There are three important officers of Lokpal,
they are appointed by Lokpal Chairperson:
 Secretary to Lokpal
 Director of Inquiry
 Director of Prosecution
There is one secretary appointed by the chairperson from a panel of names sent by central
government. The Director of Inquiry and Director of Prosecution cannot be below the rank of
Additional Secretary to the Government of India. These officials will also be appointed by
chairperson.

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LOK PAL JURISDICTION
 The following come under the jurisdiction of Lokpal: Prime Minister of India, under
certain conditions:
 All ministers of the Union
 Members of Parliament except for matters related to article 105 of constitution. (that is
anything said or a vote given by him in Parliament) Group ‘
 Group ‘A’ / Group ‘B’ officers / Group ‘C’ /Group ‘D’ officials
 Any person who is or has been in-charge (director / manager/ secretary) of anybody /
society set up by central act or any other body financed / controlled by central
government. Any other person involved in act of abetting, bribe giving or bribe taking.

LOK PAL BENCHES

 A Lokpal Bench will be constituted by the Chairperson with two or more members.
Every Lokpal Bench has to have at least half members as judicial members. If bench
consists of Chairperson, it will be headed by him. If the bench does not consist of
chairperson, it will be headed by a judicial member only. The Lokpal benches will sit in
New Delhi or any other places as decided by Lokpal. The benches can be constituted and
reconstituted by Chairperson time to time.

LOK PAL JURISDICTION

 All entities receiving donations from foreign source in the context of the Foreign
Contribution Regulation Act (FCRA) in excess of Rs. 10 lakhs per year are brought
under the jurisdiction of Lokpal.
 Lokpal will have power of superintendence and direction over any investigation agency
including CBI for cases referred to them by Lokpal.

LOK PAL: ENQUIRY PROCEDURE

 The Lokpal’s inquiry wing is required to inquire into complaints within 60 days of their
reference. On considering an inquiry report the Lokpal shall-
(i) order an investigation;
(ii) initiate departmental proceedings; or

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(iii) close the case and proceed against the complainant for making a false and frivolous
complaint.

LOK PAL: INVESTIGATION & PROSECUTION

 The investigation shall be completed within 6 months. The Lokpal may initiate
prosecution through its Prosecution Wing before the Special Court set up to adjudicate
cases.
 The trial shall be completed within a maximum of two years.

*****
LOK AYUKTA.
 Lokayukta can be understood as an independent anti-corruption statutory body
established in states, to fight against corruption.
 On the receipt of any complaint regarding corruption or bribery of the public official
working at the state level, members of legislative assembly or ministers etc.
 Lokayukta comes into the picture, to deal with it and investigate the case thoroughly.
 Even before the Lokpal and Lokayukta Act, 2013 was enacted in the country, many
states have already set up Lokayukta for combating corruption, of which Maharashtra
was the pioneer state.
 The Composition of Lokayukta is different in different states of the country.
 Lokayukta is the head of the body who can be the Judge of the Supreme Court or Chief
Justice/Judge of the High Court.
 Moreover, there is an Uplokayukta, who can be a Judge of High court or any central or
state government employee whose scale of pay is greater than or equal to Additional
Secretary to the Government of India.
 The Governor of the concerned state appoints both Lokayukta and Uplokayukta for a
period of six years.

TAMILNADU LOK AYUKTA APPOINTED.

 The Governor has appointed retired High Court judge P. Devadass as the chairperson of
the five-member Lokayukta that was notified on Monday, 02.04.2019.

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  The notification was issued following the recommendations made by a search committee.
 Four members: Former district judges K. Jayabalan and R. Krishnamoorthy are the two
judicial members and retired IAS officer M. Rajaram and advocate K. Arumugam are the
two non-judicial members of the anti-corruption body, according to the notification
issued by the Personnel and Administrative Reforms Department.
 “The chairperson and the members shall hold office for five years from the day they
enter office or the date on which they attain the age of 70 years, whichever is earlier,”
stated the notification.
 It was in December , 2018, the State government constituted a search committee for
submitting names for the posts of the chairperson and members of the Lokayukta.
Search committee
 Retired High Court judge K. Venkataraman was the chairperson of the panel. Former
Advocate General R. Krishnamoorthy and retired IPS officer A. Pari were the other
members on the search committee. In July last year, the Tamil Nadu government passed
the legislation in the Assembly a day before the deadline set by the Supreme Court in this
regard.
 In November that year, the State government notified the Tamil Nadu Lokayukta Rules,
2018.
 Complaints against a public functionary can be submitted to the Registrar or the
designated officer in person or by post, but anonymous complaints would not be
entertained by the panel.
 When the State government invited Leader of the Opposition M.K. Stalin to participate in
the meeting called over constituting the search committee in December last year, he
boycotted it, contending that his objections expressed before the passing of the legislation
were ignored and the Bill was passed in a hurried manner.

Huge furore ( a public outburst, esp of protest; uproar):

 It may be recalled that Mr. Devadass’ judgment in June 2015 during his tenure in the
Madras High Court suggesting mediation between a rape convict and the survivor,
resulted in a huge furore from across the country.

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  The judge had then recalled his judgment and eventually cancelled the bail granted to the
rape convict.
*****
CENTRAL VIGILANCE COMMISSION.
HISTORY.
 Central Vigilance Commission is an apex Indian governmental body created in 1964 to
address governmental corruption.
 It has the status of an autonomous body, free of control from any executive authority,
charged with monitoring all vigilance activity under the Central Government of India,
and advising various authorities in central Government organizations in planning,
executing, reviewing and reforming their vigilance work.
 It was set up by the Government of India in February, 1964 on the recommendations of
the Committee on Prevention of Corruption, headed by Shri K. Santhanam, to advise and
guide Central Government agencies in the field of vigilance.

ANNUAL REPORT.
 It not only gives the details of the work done by it but also brings out the system failure
which leads to corruption in various Departments / Organisations, system improvements,
various preventive measures and cases in which the Commission's advises were ignored
etc.

ROLE OF CENTRAL VIGILANCE COMMISSION.

 It is not an investigating agency, and works through either the CBI or through the
Departmental Chief Vigilance Officers.
 The only investigation carried out by it is that of examining Civil Works of the
Government which is done through the Chief Technical Officer.
 Corruption investigations against government officials can proceed only after the
government permits them. The Central Vigilance Commission publishes a list of cases
where permissions are pending, some of which may be more than a year old.
 The Ordinance of 1998 conferred statutory status to the Central Vigilance Commission
and the powers to exercise superintendence over functioning of the Delhi Special Police

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 Establishment, and also to review the progress of the investigations pertaining to alleged
offences under the Prevention of Corruption Act, 1988 conducted by them.
 The Central Vigilance Commission publishes a list of cases where permissions are
pending, some of which may be more than a year old.
 The Ordinance of 1998 conferred statutory status to the Central Vigilance Commission
and the powers to exercise superintendence over functioning of the Delhi Special Police
Establishment, and also to review the progress of the investigations pertaining to alleged
offences under the Prevention of Corruption Act, 1988 conducted by them.
 In 1998 the Government introduced the Central Vigilance Commission Bill in the Lok
Sabha in order to replace the Ordinance, though it was not successful. The Bill was re-
introduced in 1999 and remained with the Parliament till September 2003, when it
became an Act after being duly passed in both the Houses of Parliament. The Central
Vigilance Commission has also been publishing a list of corrupt government officials
against which it has recommended punitive action

APPOINTMENT OF CENTRAL VIGILANCE COMMISSION

 The Central Vigilance Commissioner and the Vigilance Commissioners are appointed by
the President after obtaining the recommendation of a Committee consisting of:
 The Prime Minister — Chairperson
 The Home Minister — Member.
 The Leader of the Opposition in the Lok Sabha — Member.

REMOVAL OF CENTRAL VIGILANCE COMMISSIONER.

 The Central Vigilance Commissioner or any Vigilance Commissioner can be removed
from his office only by order of the President on the ground of proved misbehavior or
incapacity after the Supreme Court, on a reference made to it by the President, has, on
inquiry, reported that the Central Vigilance Commissioner or any Vigilance
Commissioner, as the case may be, ought to be removed.
 The President may suspend from office, and if deem necessary prohibit also from
attending the office during inquiry, the Central Vigilance Commissioner or any Vigilance
Commissioner in respect of whom a reference has been made to the Supreme Court until

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 the President has passed orders on receipt of the report of the Supreme Court on such
reference.
 The President may, by order, remove from office the Central Vigilance Commissioner or
any Vigilance Commissioner if the Central Vigilance Commissioner or such Vigilance
Commissioner, as the case may be: is adjudged an insolvent; or has been convicted of an
offence which, in the opinion of the Central Government, involves moral turpitude; or
engages during his term of office in any paid employment outside the duties of his office;
or is, in the opinion of the President, unfit to continue in office by reason of infirmity of
mind or body; or has acquired such financial or other interest as is likely to affect
prejudicially his functions as a Central Vigilance Commissioner or a Vigilance
Commissioner (As per CENTRAL VIGILANCE COMMISSION Act, 2003)

CENTRAL VIGILANCE COMMISSION: ORGANIZATION COMPOSITION

 It’s headed by a Central Vigilance Commissioner who is assisted by two Vigilance
Commissioners. The Central Vigilance Commission has its own Secretariat, Chief
Technical Examiners' Wing (CTE) and a wing of Commissioners for Departmental
Inquiries (CDI).

LIMITATIONS OF CENTRAL VIGILANCE COMMISSION.

 It is only an advisory body. Central Government Departments are free to either accept or
reject it's advice in corruption cases.
 Central Vigilance Commission does not have adequate resources compared with number
of complaints that it receives. It is a very small set up with sanctioned staff strength of
299. Whereas, it is supposed to check corruption in more than 1500 central government
departments and ministries.
 Central Vigilance Commission cannot direct CBI to initiate inquiries against any officer
of the level of Joint Secretary and above on its own. Such a permission has to be obtained
from the concerned department.
 Central Vigilance Commission does not have powers to register criminal case. It deals
only with vigilance or disciplinary cases.

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  Central Vigilance Commission has supervisory powers over CBI. However, it does not
have the power to call for any file from CBI or to direct CBI to investigate any case in a
particular manner. CBI is under administrative control of Department of Personnel and
Training (DoPT). Which means that, the powers to appoint, transfer, suspend CBI
officers lie with DoPT.
 Appointments to Central Vigilance Commission are indirectly under the control of Govt
of India, though the leader of the Opposition (in Lok Sabha) is a member of the
Committee to select Central Vigilance Commission and VCs. But the Committee
considers candidates put up before it. These candidates are decided by the Government.
 As a result, although Central Vigilance Commission is relatively independent in its
functioning, it has neither resources nor powers to inquire and take action on complaints
of corruption that may act as an effective deterrence against corruption.

CENTRAL VIGILANCE COMMISSION& WHISTLEBLOWER PROTECTION

 A few years after the murder of IIT Kanpur alumnus NHAI engineer Satyendra Dubey,
the Central Vigilance Commission launched an initiative to protect whistleblowers.
However, this program has been criticized by ex-Chief Justice of India R.C. Lahoti as
being ineffective. He said that he had on previous occasions through his NGO India
Rejuvenation Initiative, tried to draw the attention of high officials in the CENTRAL
VIGILANCE COMMISSIONto the unsatisfactory manner of its functioning, but with no
results.
Central Vigilance Commission: Purpose and Functions.
Central Vigilance Commission is a top government body, established in 1964 with the aim of
addressing corrupt practices within the government.
The Central Vigilance Commission works in coordination with the government authorities for
the betterment of the system.
Purpose.
1. The main purpose for which this important body had been established was to ensure all sorts
of corruptions in government sector could be well prevented and addressed minutely.
2. It is an autonomous body, responsible for monitoring all vigilance activities under the union
government.

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3. Its major role is to recommend government agencies in “planning, executing, reviewing and
reforming” their vigilance capability.
4. Central Government of India formed Central Vigilance Commission in the year 1964 as an
important body that could take into account the measures and steps to prevent all the corruptions
especially the governmental ones for a better system and governance.
Central Vigilance Commission has been given several powers including its status to work
independently as a major sovereign body which remains free from any type of control from the
authorities.
Central Vigilance Commission has came into existence after the reports submitted by Committee
on Prevention of Corruption whose chairperson Mr. K. Santhanam had suggested for the
formation of this Commission. Mr. Nittoor Srinivasa Rau was appointed as first Chief Vigilance
Commissioner of India.
It must be informed that Central Vigilance Commission is not an investigating agency. It
operates in coalition with the CBI or the Departmental Chief Vigilance Officers. The only search
that Central Vigilance Commission conducts is that of investigating Civil Works of the
government, which is done through the Chief Technical Officer.
Before Central Vigilance Commission can take up investigations into corruption cases against
government officials, it has to be approved by the government. The Central Vigilance
Commission also publishes list of corrupt officials and recommends punitive action against
them.

Appointment.
The President of India appoints the Central Vigilance Commissioner and the Vigilance
Commissioners on the recommendation of the Prime Minister, Home Minister and the leader of
the opposition in the Lok Sabha. It clearly indicates that the appointments to Central Vigilance
Commission are indirectly under the government’s control.

Is CENTRAL VIGILANCE COMMISSION a powerless agency?

Central Vigilance Commission is often considered a powerless agency as it is treated as an
advisory body only with no power to register criminal case against government officials or direct
CBI to initiate inquiries against any officer of the level of Joint Secretary and above.

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 Although Central Vigilance Commission is “relatively independent” in its functioning, it neither
has the resources nor the power to take action on complaints of corruption.

Functions and powers of Central Vigilance Commission

With respect to CBI:
 To exercise superintendence over the functioning of the Delhi Special Police Establishment
(DSPE) (i.e. CBI)with respect to investigation under the Prevention of Corruption Act, 1988; or
offence under Cr.P.C. for certain categories of public servants and to give directions to the DSPE
for purpose of discharging this responsibility;
 To give directions and to review the progress of investigations conducted by the DSPE into
offences alleged to have been committed under the Prevention of Corruption Act;
 As a fallout of the Vineet Narain case, the Supreme Court of India ruled that the Director of the
CBI (and Director of Enforcement) should be appointed on the recommendations of a Committee
headed by the Central Vigilance Commissioner, the Home Secretary and the Secretary in the
Department of Personnel as members. The Committee should also take the opinion of the
incumbent Director CBI before forwarding their recommendations to the Appointments
Committee of the Cabinet.
 The Committee concerned with the appointment of the Director of CBI is also empowered to
recommend, after consultation with the Director (CBI), appointment of officers to the posts of
the level of SP and above in DSPE.
 The Committee concerned with the appointment of the Director of Enforcement is also
empowered to recommend, after consultation with the Director of Enforcement, appointment of
officers to the posts of the level of Deputy Director and above in the Directorate of Enforcement.

With respect to Vigilance..

 To undertake an inquiry or cause an inquiry or investigation to be made into any transaction in
which a public servant working in any organization, to which the executive control of the
Government of India extends, is suspected or alleged to have acted for an improper purpose or in
a corrupt manner;

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 To tender independent and impartial advice to the disciplinary and other authorities in
disciplinary cases, involving vigilance angle at different stages i.e. investigation, inquiry, appeal,
review etc.
 To exercise a general check and supervision over vigilance and anti-corruption work in
Ministries or Departments of the Government of India and other organizations to which the
executive power of the Union extends; and
 To undertake or cause an inquiry into complaints received under the Public Interest Disclosure
and Protection of Informer and recommend appropriate action.
 Respond to Central Government on mandatory consultation with the Commission before making
any rules or regulations governing the vigilance or disciplinary matters relating to the persons
appointed to the public services and posts in connection with the affairs of the Union or to
members of the All India Services
 The Central Government is required to consult the CENTRAL VIGILANCE COMMISSIONin
making rules and regulations governing the vigilance and disciplinary matters relating to the
members of Central Services and All India Services.
Its main functions include technical audit of construction works of governmental organizations
from a vigilance angle, investigation of specific cases of complaints relating to construction
works and assisting CBI in its investigations involving technical matters.

Other functions of Central Vigilance Commission.

1. To exercise superintendence over the functioning of the Delhi Special Police Establishment
(DSPE) with respect to investigation under the Prevention of Corruption Act, 1988; or offence
under CRPC for certain categories of public servants and to give directions to the DSPE for
purpose of discharging this responsibility.
2. To review the progress of investigations conducted by the DSPE into offences alleged to have
been committed under the PC Act.
3. To undertake an inquiry or cause an inquiry or investigation to be made into any transaction in
which a public servant working in any organisation, to which the executive control of the
Government of India extends, is suspected or alleged to have acted for an improper purpose or in
a corrupt manner.

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4. To tender independent and impartial advice to the disciplinary and other authorities in
disciplinary cases, involving vigilance angle at different stages i.e. investigation, inquiry, appeal,
review etc.
5. To exercise a general check and supervision over vigilance and anti-corruption work in
Ministries or Departments of the Govt. of India and other organisations to which the executive
power of the Union extends.
6. To chair the Committee for selection of Director (CBI), Director (Enforcement Directorate) and
officers of the level of SP and above in DSPE.
7. To undertake or cause an inquiry into complaints received under the Public Interest Disclosure
and Protection of Informer and recommend appropriate action.
It can be said that Central Vigilance Commission is an apex Indian governmental body to
address governmental corruption. It has the status of an autonomous body, free of control
from any executive authority, charged with monitoring all vigilance activity under the
Central Government of India.
Central Vigilance Commission Act, 2003 also empowers the Commission to exercise
superintendence over the functioning of the Delhi Special Police Establishment (DSPE) now
called Central Bureau of Investigation (CBI).
The Commission is also empowered to review the progress of investigations conducted by the
CBI and the progress of applications pending with the competent authorities for grant of sanction
for prosecution for offences alleged to have been committed under the Prevention of Corruption
Act,1988.
The Commission also exercises superintendence over the vigilance administration of the various
organizations under the Central Government.

*****

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 UNIT – 5
ADMINISTRATIVE TRIBUNALS AND PUBLIC UNDERTAKING
Meaning:
Administrative Tribunals are quasi judicial authorities established under an Act of Parliament or
of State Legislature charged with the duty to discharge adjudicatory functions. Dicey's Concept
of Rule of law is opposed to the establishment of Administrative Tribunals. But, Administrative
Tribunals have become a necessity in the modern welfare activities of the States and they have
come to stay with us. A Tribunal means the 'Seat of a Judge'. Administrative Tribunals therefore,
are bodies other than the courts. They simulate the Courts and have powers to determine
controversies but they are not Courts. They have only some of the 'Trappings of the Courts'.
They perform hybrid functions - administrative and judicial.

 The word ‘tribunal’ takes its origin from the Latin term ‘tribunus’ which means “a
raised platform with the seat of judge, who elected by the people to protect their
interests.”
 The Important practical reason for the growth of tribunals was the desire to provide a
system of adjudication, which was informal, cheap and rapid.
 Tribunals can be called as “Judgment seat or court of justice or board or committee
appointed to adjudicate on claims of a particular kind”.
 Therefore, they are adjudicatory* bodies (except ordinary courts of law) constituted by
the State and entrusted with judicial and quasi-judicial functions as distinguished from
administrative or executive functions.
*to settle or determine (an issue or dispute) judicially

Origin and development:

The Origin of these tribunals can be traced to the French system of Droit Administratiff. It was
accepted in other continental countries. The Donoughmore Committee suggested two reforms:
The tribunals should disclose the reasons and Inspectors report should be published. The Frank’s
Committee was constituted to make recommendation in respect of tribunals and their functions.
It stated the characteristics of the Tribunals.

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The Tribunals are cheap, non-technical, easily accessible, expeditious and have expertise in a
particular field. It recommended:
i) for the appointment of a Council over the tribunals to supervise the work of the Administrative
Tribunals.
ii) that the Lord Chancellor should be the appointing authority of the Chairman of the tribunals.
iii) It suggested that the tribunals should observe certain principles like public hearing,
Representation by lawyers, Principles of Natural Justice etc. The English Tribunals and
Enquiries Act, 1958 was passed by Parliament broadly, on the basis of these recommendations.

ADMINISTRATIVE TRIBUNALS: OBJECTIVES

 To provide for a forum to deal exclusively with service matters which off loaded the
burden of the cases of High Court from their jurisdiction;
 To provide inexpensive and speedy relief to government servants in service matters;
 To provide special powers to the tribunals to make their own special powers and
procedures and not be guided by the Civil Procedure Code or the Law of Evidence but
to work according to rules of natural justice.
 As far as creation of tribunals is concerned constitution is silent. No express provision in
the Constitution, as it stood originally, provides for the establishment of tribunals.
 However, Articles 262(2) and 263(1) are important in this regard.
 Article 262(2) provides for the creation of tribunal to adjudicate the disputes relating to
water of interstate rivers or valleys.
 Article 263 (1) provides for creation of council charged with the duty of inquiry into the
disputes between states.
 Apart from these two Articles, the creation of tribunals is implied in the Articles 136,
226 and 227 of the Constitution as the term ‘tribunal’ is used in these Articles.
 However, 42nd Constitutional Amendment, 1976 expressed the provision for the
creation of tribunals. This Amendment opened the possibility for the proliferation of the
tribunals system in the country.
 Article 323A empowers the parliament to establish service tribunals, which will deal
with the service matters i.e., recruitment, conditions of service of persons appointed to

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 public services and posts in connection with the affairs of the Union or any State or any
local or other authority in India or under the control or owned by the government and
 Article 323B empowers the appropriate legislature to provide the law, for adjudication or
trial by tribunals of any disputes and offences with respect to several matters namely:
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in Article 31A or of
any rights therein or the extinguishment or modification of any such rights or by way of ceiling
on agricultural land or in any other way;
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a
State, but excluding the matters referred to in Article 329 and Article 329A;
(g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and
oils) and such other goods as the President may, by public notification, declare to be essential
goods for the purpose of this article and control of prices of such goods;
(h) offences against laws with respect to any of the matters specified in sub clause (a) to (g) and
fees in respect of any of those matters;
(i) any matter incidental to any of the matters specified in sub clause (a) to (h).
 In 1985, Parliament passed the Administrative Tribunals Act in pursuance of Article
323 A of the Constitution.
 And under Article 323B Parliament and State legislatures are passing law from time to
time which provided for the creation of tribunals.

India:
Though there are a number of Tribunals established in India, there is no 'Conseil d’ Etat of
France or a 'Council over Tribunals' of the British system. Instead the High Courts have
jurisdiction over these tribunals under Art. 226 of the Constitution. A Number of Tribunals have
been established in India: Income Tax Appellate Tribunal, Labour Tribunal, Land Tribunals,
Railway Rate Tribunals, Rent control Authority, Commissioner for Religious Endowments, etc.

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Necessity & Reasons for Growth:-
(i) The Ordinary Courts follow strictly the procedures and the Evidence Act and hence take
much time. However tribunals act rapidly with wide discretionary powers, basing their decisions
on departmental policy and other factors

ii) Administrative Tribunals with experts on their panel may effectively dispose of technical
problems, as they possesses technical knowledge in particular fields like labour, Revenues,
Excise, wages etc.

iii) Tribunals are less expensive, and procedures are not complex and formalistic as in courts.
Courts are generally rigid and have legalistic approach. Tribunals are not bound by strict rules of
evidence and procedure codes. They are more pragmatic & realistic in their approach.

iv) Tribunals are not costly, and are easily accessible to the affected persons, eg. Sales Tax
Appellate Tribunal, Labour Tribunal, Land Appellate Tribunals etc.

v) The Courts decide all questions objectively but the tribunal may decide subjectively on
departmental policy basis.

Essential features:
i) Statutory Origin:
Every Tribunal should have its base in a Statute made by the Parliament or state Legislature. It
cannot be created under a statutory instrument by the executive, or by a resolution.

ii) Composition & Appointment:

The Statute must specify the Composition and special Qualifications of the personnel to be
appointed as Members of the Tribunal. Normally one Presiding Officer, and two Assessors are
appointed. Persons with Expertise or specialization in a particular field (with administrative
experience) are appointed.

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iii) Jurisdiction, Powers and functions:
1. As the jurisdiction has the tendency to oust the jurisdiction of the Civil Courts, the Statute
should specify clearly the nature of jurisdiction, powers and functions.
2. Its powers normally include some of the powers of the Civil Courts in issuing processes, in
securing attendance of witness examining them on oath, to compel production of documents etc.
3. Members of the Tribunals are public servants.

iv) Procedure:
Though the procedure codes and the Evidence Act is not binding on the Tribunals they should
provide for fair hearing or opportunity and no information should be used against a person
without giving an opportunity to defend. However, it should not violate rules relating to hearsay
or admit documents without proving them. Thus observance of principles of natural justice is a
sine qua non.

v) Speaking order:
The Tribunal should record reasons for its order (Speaking order). This discloses the mind of the
Tribunal and prevents arbitrariness. This will also enable the appellate Court to decide the
legality of the order.

vi) Review:
Tribunals have no inherent power to review, their decisions. The reason is that once the order is
made, the tribunal becomes functus officio (authority ceases). The High Court has powers to
correct the errors of the tribunals.

vii) Appeals:
The order of the tribunal, has no finality and hence, it may be set aside under reference to the
High Court. Certiorari or prohibition writ may be issued under Arts 226 and 227 of the
constitution quashing the order of the Tribunal. (Judicial Review).

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42ndAmendment and Administrative Tribunals.
The 42nd Constitution Amendment introduced Arts. 323- A & B to enable Parliament to make
law to constitute Administrative Tribunals to deal with certain disputes. The law according to it
may exclude jurisdiction of all Courts except that of the supreme court under Art. 136 (SLP:
Special-leave petition) of the Constitution. This means, by law the Jurisdiction of the High
Courts, Art 226 and 227, could be excluded.

Exercising this power, the parliament enacted the Administrative-Tribunals Act 1985, which in
Section. 28 excluded the jurisdiction ofthe High Courts over the Tribunals. This was challenged
before the Supreme Court in:

Sampath Kumar v.Union of India (1987)

The Court held:
(i) The Tribunal is to be a real substitute of a High Court, and should be entitled to exercise the
powers of the High Court. This means the Tribunal is to be a de jure and de facto substitute.
ii) The Tribunal should have jurisdiction to decide the validity of any statute, rule, regulation,
notification etc. as the High Court.
iii) If the Tribunal falls short of this requirement, there would be denial of the power of Judicial
review, is the basic structure of the Constitution.
In fact, the tribunal is to be an effective institutional mechanism equally efficacious as the High
Court in the exercise of judicial review. Within these parameters, the Administrative Tribunals
Act was held valid and constitutional. The Tribunal should be a worthy successor to a High
Court in all respects if rule of law is to be upheld.
*****

TRIBUNAL: NOT A SUBSTITUTE FOR HIGH COURT

 The Tribunals empowered to adjudicate disputes and entertain complaints with respect to
service matters.
 All other courts except Supreme Court are barred to entertain these cases.
 Therefore, tribunals do enjoy the same status or are at par with High Court. But a tribunal
will not have power to issue writ as power is not given to them.

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 SAMPATH KUMAR v. UOI [(1987) 1 SLJ 124]
 The Supreme Court in S.P. Sampath Kumar’s case declared that the tribunal is the
substitute of High Court and is entitled to exercise the power thereof.
 The tribunals are apart of the jurisdiction of High Court i.e., relating to service matters an
appeal cannot lay within the High Court against the order or judgment and as a matter of
right before the Supreme Court.
 But Supreme Court can entertain appeal in the exercise of its extra ordinary jurisdiction
under Article 136.
 Hence, the tribunal’s decision is made appealable within the tribunal itself before a large
bench as an ordinary employee cannot be accepted to afford the cost of litigation in the
Supreme Court, which may sometimes result in the denial of his right to seek justice.

L.CHANDRA KUMAR v. UOI [(1997) 3 SCC 261]

 The Supreme Court reversed its earlier judgment and ruled that power of judiciary vested
in the Supreme Court and High courts is part of the basic structure of the constitution
and could not be taken away.
 Now the tribunals are allowed to function as courts of first instance subject to the
jurisdiction of High Courts. This downgraded the role of tribunals from the substantial
role to supplemental role.
 The person who is aggrieved by an order of the government or its agencies can approach
the tribunal within a period of one year from the date on which the delinquent official
was penalized and this representation has to be disposed of within the period of six
months. [Section 21 of Central Administrative Tribunal Act, 1985]
 However, delay can be condoned by the tribunal if it is satisfied with sufficient cause.
 The tribunal shall follow the principles of natural justice.
 It is empowered to review its own decision and may reject the application of review if it
is satisfied that there is no sufficient ground for it such rejected application of review is
not appealable.
 It excludes the jurisdiction of other courts but subject to the writ jurisdiction of High
Court and Jurisdiction of Supreme Court under Article 136.

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The grounds for Supreme Court to interfere with the findings are:
 The Tribunal has acted in excess of jurisdiction or has failed to exercise apparent
jurisdiction.
 It has acted illegally.
 There is an error of law.
 The order of it is erroneous or has approached the question in a manner liable to result
in injustice.
 It has acted against the principles of natural justice.
 No civil servant is to be dismissed or removed without a departmental enquiry [Article
311 of the Constitution of India].
 The tribunal has the power of judicial review for the validity of such disciplinary
proceedings but power is limited as it cannot change the decision.
 However, the Supreme Court under equitable jurisdiction under Article 136 enjoys the
power to change such decision or opinion of the disciplinary proceedings.
 For the proper implementation of welfare schemes the tribunals were found to be
essential and inevitable.
 Thus, the tribunal system cannot be inconsistent with rule of law in fact they have
become the agencies for ensuring rule of law.
Some of the important tribunals are:
 Central Administrative Tribunal (CAT),
 Industrial Tribunals set up under Industrial Disputes Act, 1947
 Customs, Excise and Gold (Control) Appellate Tribunal
 Armed Forces Tribunal (AFT),
 Telecom Disputes Settlement Appellate Tribunal (TDSAT),
 Railway Rates Tribunals set up under Indian Railways Act,1890,
 Competition Appellate Tribunal (COMPAT),
 Debt Recovery Tribunal (DRT),
 Income Tar Appellate Tribunal set up under Income Tax Act, 1961,
 Court of Survey set up wider Merchant Shipping Act, 1958,
 VAT Tribunal,

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  Revenue Tribunal.

ADMINISTRATIVE TRIBUNALS: UK.

 Tribunals have been defined as “Bodies outside the hierarchy of the courts with
administrative or judicial functions” (Curzon, Dictionary of Law)
 Administrative tribunals resolve disputes between, for example, the citizen and an officer
of a government agency or between individuals in an area of law in which the
government has legislated the conduct of their relations.
Administrative tribunals have been established by statute, in the main, to resolve:
• disputes between a private citizen and a central government department, such as claims to
social security benefits;
• disputes which require the application of specialised knowledge or expertise, such as the
assessment of compensation following the compulsory purchase of land; and
• other disputes which by their nature or quantity are considered unsuitable for the ordinary
courts, such as fixing a fair rent for premises or immigration appeals.
The main reason for the creation of administrative tribunals may be identified as:
• the relief of congestion in the ordinary courts of law (the courts could not cope with the
case-load that is now borne by social security tribunals, employment tribunals and the
like);
• the provision of a speedier and cheaper procedure than that afforded by the ordinary
courts (tribunals avoid the formality of the ordinary courts); and
• the desire to have specific issues dealt with by persons with an intimate knowledge and
experience of the problems involved (which a court with a wide general jurisdiction
might not acquire).
•
CLASSIFICATION OF ADMINISTRATIVE TRIBUNALS: UK .
 Administrative tribunals are sets of tribunals which adjudicate on specialist civil disputes
outside of the court system. Darbyshire has reported (2008) that there are over 130 such
bodies in the UK covering a vast array of areas. Until recently each tribunal was separate
and in 1996 the list of administrative tribunals included the following:
 agricultural land tribunals,

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  child support appeal tribunals,
 the Civil Aviation Authority ,
 the Director General of Fair Trading in their licensing functions,
 criminal injuries adjudicators,
 the Data Protection Registrar,
 education appeal committees, immigration adjudicators
 the Immigration Appeal tribunal,
 industrial tribunals (renamed employment tribunals),
 the two Lands Tribunals,
 mental health review tribunals,
 the Comptroller-General of Patents,
 war pensions appeal tribunals,
 rent assessment committees,
 social security appeal tribunals
 the Social Security Commissioners,
 disability and medical appeal tribunals,
 the general and special commissioners of income tax, traffic commissioners, valuation
and community charge tribunals, and VAT tribunals.
 However, these tribunals have now been incorporated into the unified Tribunals System
which includes all administrative tribunals with the exceptions of Patent Office tribunals
and the Investigatory Powers Tribunal.

ADVANTAGES OF ADMINISTRATIVE TRIBUNALS: UK.

(a) quick with no long waits for the case to be heard and it is dealt with speedily;
(b) cheap, as no fees are charged;
(c) staffed by experts who specialise in particular areas;
(d) characterised by an informal atmosphere and procedure;
(e) allowed not to follow its own precedents, although tribunals do have to follow court
precedents.

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DISADVANTAGES OF ADMINISTRATIVE TRIBUNALS: UK.
 (a) some are becoming more formal;
 (b) they are not always independent of the Government, although the Independent
Tribunal Service now recommends possible chairmen to the Lord Chancellor;
 (c) some tribunals act in private;
 (d) legal aid is not generally available, except for the Lands Tribunal, the Employment
Appeal Tribunal and the Mental Health Review Tribunal;
 (e) there is no general right of appeal to the courts: it all depends on the particular statute
creating the tribunal. The 1992 Act gives a right of appeal on a point of law to the High
Court from specified tribunals.

TYPES OF ADMINISTRATIVE TRIBUNALS: UK

 Tribunals are usually divided into two types:
 domestic tribunals
 administrative tribunals.
 Domestic Tribunals are often used within the professions to determine questions relating
to the professional conduct of their members. This usually involves matters of discipline.
 Examples of domestic tribunals include the General Medical Council (GMC), the General
Dental Council (GNC), the Bar Council , etc.
Lee v Showmen’s Guild
Since Lee v Showmen’s Guild of Great Britain (1952) the Courts will interfere in any domestic
tribunal to ensure that the rules of these associations are correctly interpreted and the principles
of natural justice are observed.
Administrative Tribunals are concerned with administrative law or matters affecting the rights of
a large numbers of persons.
 A large number of administrative tribunals have been set up by various statutes.
However, there are some tribunals which rarely ever sit and a few that have never sat.
Important Administrative Tribunals:
 Employment Tribunals
 Asylum & Immigration Tribunal
 Mental Health Review Tribunal

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  Asylum & Immigration Tribunal
 Information Tribunal

ADMINISTRATIVE TRIBUNAL PERSONNEL: UK

 Most tribunals consist of a legally-qualified chair person with two lay members.
 The lay members often can bring expertise to the decision of the tribunal.
 For instance, the Employment Tribunal consists of a legally-qualified chairperson, a
person who has worked as an employer and a person who has worked as a trade unionist.
APPEALS FROM ADMINISTRATIVE TRIBUNALS: UK
 Appeal from many tribunals is to the Divisional Court of the Queen’s Bench. For some,
such as the Lands Tribunal, appeal lies to the Court of Appeal
 However, some tribunals have their own special appeal tribunal. For instance, an appeal
from an Employment Tribunal is to the Employment Appeal Tribunal;

ADMINISTRATIVE JUSTICE AND TRIBUNALS COUNCIL: UK

 The Administrative Justice and Tribunals Council (AJTC) keeps the tribunal and
administrative justice system under review.
 It was established by the Tribunals, Courts and Enforcement Act 2007
 It replaced the Council on Tribunals.
 Key duties of AJTC includes:
 To give advice and make recommendations on changes on the workings of the
administrative justice system;
 To review the relationships between the various components of the administrative justice
system (such as ombudsmen, tribunals and the courts);

KEY STAGE IN DEVELOPMENT OF TRIBUNALS: UK

 Much of the organisation of tribunals can be understood by looking at the Franks
Committee Report 1957.The main criticisms of this report were that tribunals did not give
reasons for their decisions and there were often no routes of appeal.

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EFFECT OF FRANKS COMMITTEE REPORT: UK
 Following the report a number of important changes were introduced to the
administrative tribunal system by the Tribunals and Inquiries Act 1958 (with later
additions in the Tribunals and Inquiries Act 1971 and Tribunals and Inquiries Act 1992).
 Council on Tribunals to supervise the work of most administrative tribunals was
established;
 Tribunals would now give reasons for their decisions;
 Parties can be represented by a lawyer if they wish;
 All material facts would be disclosed to all parties before the hearing;
 hearings would be in public unless public security was involved;
 appeals would lie from most tribunals to the Divisional Court of the Queen’s Bench.

CENTRAL ADMINISTRATIVE TRIBUNALS: INDIA

 The Central Administrative Tribunal had been established under Article 323 -A of the
Constitution for adjudication of disputes and complaints with respect to recruitment and
conditions of service of persons appointed to public services and posts in connection with
the affairs of the Union or other authorities under the control of the Government.
 In the statement of object and reasons on the introduction of the Administrative
Tribunals Act, 1985 it was mentioned:“It is expected that the setting up of such
Administrative Tribunals to deal exclusively with service matters would go a long way in
not only reducing the burden of the various Courts and thereby giving them more time to
deal with other cases expeditiously but would also provide to the persons covered by the
Administrative Tribunals speedy relief in respect of their grievances.”
 There are 17 Benches (HQ of High Courts), 33 Division Benches and 21 Circuit Benches
in the Central Administrative Tribunal all over India. In addition to the Ministries and
Departments of Central Government, the Government of India has notified about 214
organizations under section 14 (2) of the Administrative Tribunals Act, 1985 to bring
them within the jurisdiction of the Central Administrative Tribunal, from time to time.
Administrative Tribunal Act, 1985 came into effect from July 1985
 Object – to easing the congestion of pending cases related to service matters in various
High Courts and other Courts in the country.

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  In addition the Central Administrative Tribunal, Principal Bench is dealing with the
matters of Govt. of National Capital Territory of Delhi. The Central Administrative
Tribunal is headed by Hon’ble Chairman Sh. Justice L. Narasimha Reddy, former Chief
Justice of HC of Patna. There are 66 Hon’ble Members in various Benches of the
Tribunal out of which 33 are Judicial Members, including the Hon’ble Chairman and 33
are Administrative Members.
 Subject to other provisions of the Act, a Bench consists of one Judicial Member and one
Administrative Member. The Central Administrative Tribunal has been established as a
specialist body comprising of Administrative Members and Judicial Members who by
virtue of their specialized knowledge are better equipped to dispense speedy and effective
justice.
 The conditions of service of Hon’ble Chairman and Members are the same as applicable
to a Judge of High Court as per the Administrative Tribunals (Amendment) Act, 2006 (1
of 2007), which came into effect on 19.02.2007.
 After the establishment of the Tribunal in 1985, it received 13,350 pending cases on
transfer from the High Courts and subordinate Courts under section 29 of the
Administrative Tribunal Act, 1985.
 Since its inception in 1985 to 31st July, 2018 about 7,79,101 cases were instituted in the
Tribunal. Out of those 7,27,818 cases have already been disposed of. That is a disposal
rate of 93.41 %.
 The Administrative Tribunal is distinguishable from the ordinary courts with regard to
its jurisdiction and procedure. It exercises jurisdiction only in relation to the service
matters of the parties covered by the Act. It is also free from the shackles of many of the
technicalities of the ordinary Courts.
A provision has also been made in the Rules that where the Tribunal is satisfied that an applicant
is unable to pay the prescribed fee on ground of indigence (seriously impoverished condition;
poverty, it may exempt such an applicant from the payment of fee. Thus, the Tribunal has duly
justified its creation through speedy and inexpensive disposal of pending cases.
 The Tribunal is guided by the principles of natural justice in deciding cases and is not
bound by the procedure, prescribed by the Civil Procedure Code. The Central
Administrative Tribunal is empowered to frame its own rules of procedure and practice.

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 Under the said provision of the Act, the Central Administrative Tribunal (Procedure)
Rules, 1987 and Central Administrative Tribunal Rules of Practice, 1993 have been
notified to ensure smooth functioning of the Tribunal.
 The employees of the Central Administrative Tribunal are required to discharge their
duties under the general superintendence of the Chairman. Salaries and Allowances and
Conditions of Service of the officers and other employees of the Tribunal are specified by
the Central Government. Pursuant to these provisions, the Central Government has
notified the Central Administrative Tribunal Staff (Condition of Service) Rules, 1985.
 There are 1303 posts classified in 36 categories for assisting the Tribunal in discharging
its functions. The Central Administrative Tribunal is a dynamic organization with
increasing jurisdiction, responsibilities and work load. Now the Central Administrative
Tribunal has initiated an ambitious Plan Scheme for modernization and computerization
of its activities through a new dynamic website, Case Information System, Video
Conferencing etc. This project, on completion, will facilitate the litigants, lawyers,
researchers and public in general to access the orders and judgments of the Tribunal on
real time basis besides efficient maintenance & management of records and speedy
disposal of cases.

ADMINISTRATIVE TRIBUNALS IN INDIA.

 There are tribunals for settling various administrative and tax-related disputes, including
Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT),
Customs, Excise and Service Tax Appellate Tribunal (CESTAT), National Green
Tribunal (NGT), Competition Appellate Tribunal (COMPAT) and Securities Appellate
Tribunal (SAT), among others.
 In several states, Food Safety Appellate Tribunals have been created to hear appeals
against orders of adjudicating officers for food safety (additional deputy commissioners).
 Armed Forces Tribunal (AFT) is a military tribunal in India. It was established under the
Armed Forces Tribunal Act, 2007.
 Armed forces Tribunals are the various military courts where in the matters related to
Army/Air force /Navy laws are dealt and the Tribunal also passes orders on service

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 matters of the defence forces and their personnel. The bench comprises of an
administrative member and one judicial member.
 The court martial is disciplinary proceedings against an erring defence official by the
organisation. IT is presided over by the serving members of the armed forces and gives
punishments. The decisions of the Court martial can be challenged in Armed forces
Tribunal.

LEADING CASES: ADMINISTRATIVE TRIBUNALS IN INDIA

State Of Orissa Vs Bhagaban Sarangi
 The Supreme Court has held that a tribunal (Orissa state administrative tribunal) which is
bound by the decision of the High court.

Lloyds Bank Ltd Vs Indian Staff Assn.,

In this case it as been held that they should prevent unfair labour practices and victimisation
And restore industrial peace by ensuring the salutary principle of collective bargaining.

Durga Shankar Mehta Vs Raghuraj Singh

The Supreme Court defined ―tribunal in the following words:
The expression ‘tribunal’ as used in the article 136 does not mean the same thing as ‘court’ but
includes, within its ambit, all adjudicating bodies, provided they are constituted by the state and
are invested with the judicial as distinguished from administrative or executive functions.

Dhulabhai Vs State Of Madhya Pradesh

In this case it as been held that the court of law can decide the vires of the legislation, while an
administrative tribunal cannot do so.(Thakker and Thakker 2017) lectures on administrative
law)
For adjudication of disputes with respect to recruitment and conditions of service of persons
appointed to public services and posts. All Central Government Employees and Employees of 45
other organizations notified by the central Govt.

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CENTRAL ADMINISTRATIVE TRIBUNAL: JURISDICTION
 Cause of Action arises: When all the channels are exhausted
 If no reply received for appeal
 Six months after appeal.
 Time Limit: One year from the date of cause of action
 Continuous cause of action in cases like
 non settlement of pension
 nonpayment of pay

DEFENDING CAT CASES.

 Prepare reply
 objection relating to delay should be raised first
 objections relating to jurisdiction.
 Reply should be verified and signed by the authorized officer.
 All relevant documents relied upon should be annexed to reply.
 Relevant file/documents to be sent to CO/RO for defending the case
 Get full facts of the case
 Application for vacation of interim order may be made
 Obtain copy of final order
 Get legal opinion for review/writ/SLP
 Take steps to
 File writ/SLP
 Implement the order

ADMINISTRATIVE TRIBUNALS: USA

Administrative Procedure Act, 1946 (APA): An Act to improve the administration of justice by
prescribing fair administrative procedure. Enacted by the 79th US Congress on June 11, 1946, is
the US federal statute that governs the way in which administrative agencies of the federal
government of the US may propose and establish regulations. To protect citizens, the APA also
grants the judiciary oversight over all agency actions.

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ADMINISTRATIVE PROCEDURE ACT, 1946: USA
 The APA applies to both the federal executive departments and the independent agencies.
US Senator Pat McCarran called the APA "a bill of rights for the hundreds of thousands
of Americans whose affairs are controlled or regulated" by federal government agencies.
The text of the APA can be found under Title 5 of the US Code, beginning at Section
500.

CODE OF LAWS OF THE USA / UNITED STATES CODE

 The Code of Laws of the United States of America (variously abbreviated to Code of
Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the
official compilation and codification of the general and permanent federal statutes of the
United States. It contains 53 titles (Titles 1–54, excepting Title 53, it being reserved). The
main edition is published every six years by the Office of the Law Revision Counsel of
the House of Representatives, and cumulative supplements are published annually.

ADMINISTRATIVE PROCEDURE ACT, 1946: USA

 There is a similar Model State Administrative Procedure Act (Model State APA), which
was drafted by the National Conference of Commissioners on Uniform State Laws for
oversight of state agencies. Not all states have adopted the model law wholesale, as of
2017. The federal APA does not require systematic oversight of regulations prior to
adoption, unlike the Model APA.
 Although each US government agency is constituted within one branch of the
government (judicial, legislative, or executive), an agency's authority often extends into
the functions of other branches. Without careful regulation, that can lead to unchecked
authority in a particular area of government, violating the separation of powers, a concern
that Roosevelt himself acknowledged.
 To provide constitutional safeguards, the APA creates a framework for regulating
agencies and their roles.

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  According to the Attorney General's Manual on the Administrative Procedure Act,
drafted after the 1946 enactment of the APA, the basic purposes of the APA are the
following:
BASIC PURPOSE OF ADMINISTRATIVE PROCEDURE ACT (APA), 1946: USA
1. to require agencies to keep the public informed of their organization, procedures and
rules;
2. to provide for public participation in the rulemaking process, for instance through public
commenting;
3. to establish uniform standards for the conduct of formal rulemaking and adjudication;
4. to define the scope of judicial review.
 The APA's provisions apply to many federal governmental institutions. The APA in 5
U.S.C. 551(1) defines an "agency" as "each authority of the Government of the United
States, whether or not it is within or subject to review by another agency," with the
exception of several enumerated authorities, including Congress, federal courts, and
governments of territories or possessions of the United States. Courts have also held that
the U.S. President is not an agency under the APA. Franklin v. Mass.

STANDARDS OF JUDICIAL REVIEW: USA.

The APA requires that to set aside agency action that are not subject to formal trial-like
procedures, the court must conclude that the regulation is "arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with the law”. However, Congress may further limit
the scope of judicial review of agency actions by including such language in the organic statute.
To set aside formal rulemaking or formal adjudication whose procedures are trial-like, a different
standard of review allows courts to question agency actions more strongly. For such more formal
actions, agency decisions must be supported by "substantial evidence” after the court reads the
"whole record”. which can be thousands of pages long.

*****
PUBLIC UNDERTAKINGS.

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  The public enterprises have had a phenomenal growth during the last three and a half
decades—the number of central public undertakings having gone to 244 from a mere five
at the time of the first Five Year Plan.
 However, from its expansion, it should not be concluded that the public undertakings in
India are functioning very efficiently.
 There is little which suggests that the public sector has turned the comer and launched
itself into self-sustaining growth on the basis of internal resource generation.
 Over 80 per cent of the net profits of public undertakings is based on the performance of
petroleum, steel and coal sectors through occasional price increase. The non-petroleum
sector has not shown any creditable performance.
 The financial losses are partly due to poor operational performance, low capacity utiliza-
tion, excessive overheads, poor technology, defective pricing policy, poor management,
over- staffing, groupism and unionism.
 An important objective of public sector in India was to provide a sound base for
industrial development and ensure balanced regional growth besides the social objective
of promoting the welfare of the weaker sections of the society.
 The public sector has served as an important instrument in coping with such tasks as
restructuring the economy on the basis of industrialisation, exploiting natural resources in
the national interests, construction of hydrological installations and improvement of the
living conditions of the peasantry.
 However, as the country marches ahead in the twenty-first century, restructuring of
public enterprises is essential, which much include modernisation, rationalization of
capacity, selective exit and privatisation, managerial practices and technological up-
gradation.
PUBLIC SECTOR UNDERTAKINGS.
The government-owned corporations are termed as Public Sector Undertakings (PSUs) in
India— In a PSU majority (51% or more) of the paid up share capital is held by central
government or by any state government or partly by the central governments and partly by one or
more state governments. Arms & Ammunition and the allied items of defence equipments,
defence air-crafts and warships— Atomic Energy (except in the areas related to the operation of

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nuclear power and applications of radiation and radio-isotopes to agriculture, medicine and non-
strategic industries)— Railways transport, air transport etc. come under PSUs.

ROLE OF PUBLIC SECTOR UNDERTAKINGS.

As agriculture is the backbone of Indian economy, Public Sector Banks (PSBs) play a crucial
role in pushing the agricultural economy— They are less concerned with making profits as
compared to private sector but they need profits.
The Indian Public Sector Undertakings are legal business entities— A number of PSUs are
highly profitable and denoted as ‘Maharatnas’ and Navaratnas. A prominent example of a
Maharatna company is ONGC.
The Public Sector Undertakings of Indian Government, number more than 200 commercially
functioning companies— These undertakings are divided into two parts – state and central.

NEED OF PSUs
Economic development
Development of backward Areas
Employment generation
Defence
Labour welfare
Consumer welfare
Public utilities
Self-reliance

Types of Public Enterprises.

Public Enterprises can be divided in to four types based on their Ownership:-
(i)Central Government enterprises, like the State Bank of India, Life Insurance Corporation,
Hindustan Steel;
(ii)State Government enterprises like Electricity Boards and State Transport Corporations;
(iii)Joint enterprises of both the Central and State Governments, like Damodar Valley
Corporation and Bhakra Nangal Project;

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(iv)Undertakings born out of association between government and private enterprises like Oil
India Limited.
 Public Corporations
 Corporation is an aggregate of persons having its existence, rights and duties separate
from the members who compose it.
 According to Davis, “The public corporation is a corporate body created by public
authority with defined process and functions and financially independent”
 William J. Grange defines a Corporation “as an artificial person, which is authorized by
law to carry on particular activities and functions.”

Characteristics of Corporation.
The main characteristics of a Corporation are:
 It is a legal person capable of suing and being sued, entering into contracts, acquiring
and owning property in its own name.
 It is a body corporate under a special statute of the Parliament which lays down its
purpose, powers and functions, etc.
 Its functions are primarily of a business or industrial nature.
 It is run on business lines and not in accordance with the departmental procedures and
practices. It is possessed of the flexibility and initiative of a private enterprise.
 It has its own budget and finances separate from the national budget and finances.
 It holds funds in its own name and enjoys complete autonomy in the management of
these funds. It is not subject to the budgeting, accounting and audit regulations followed
by departmental enterprises.
 It enjoys complete administrative autonomy from the control of the Chief Executive.
 Its personnel do not form a part of the Civil Services but are recruited independently and
appointed on the terms and conditions laid down by the corporation itself.
 They have to work according to policy guidelines given by the government from time to
time and submit the annual report and other documents to the government.
 The Board of Directors is appointed by the government.
 The First Indian public corporation established in India was the Bombay Port Trust
(1879). This was a success.

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  The Calcutta & Madras port Trusts were created later (1905).
 In 1934, The Reserve Bank of India and
 In 1935, The Federal Railway Authority were established.
The Statute is the "Charter" of the corporation. It should exercise its rights, powers, functions
according to it; otherwise it would be ultra vires. It has powers to make its own Regulations as
per the charter (statute).
It is autonomous in its day to day management, and, is a "State" within the definition of
authorities, of Art.12 of the Constitution.
 Hence, High courts & Supreme Court have jurisdiction.
 Servants of Public Corporation
 Servants of Public corporations are not civil servants and hence are outside Art. 311 of
the Constitution.
 They are subject to the rules and regulations of the corporations.
 If these rules are not followed and an employee is dismissed, the dismissal would be
void; they are entitled to reinstatement.

*****
PUBLIC CORPORATIONS.
Corporations:
Definition:
A Corporation is an aggregate of persons having its existence, rights and duties separate from the
members who compose it. It has the powers to make regulations. It has a right to acquire or
dispose of property can sue and be sued and. prosecute & be prosecuted. It can enter into
contract. It has a legal personality and therefore a person in the eye of law: (Salmond). It is a
body corporate with perpetual succession and common seal.

Features:
(i) Public Corporation is established under a statute. The Statute defines the powers and
functions, the nature of undertaking the business enterprise and also the administrative functions
to be discharged by it. The Corporation is a public authority and the duties imposed are public in
nature.

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ii) A Corporation may be established for trading activities. It has two features:
1. That of a Government department.
2. That of a business organisation.

Hence it is a hybrid institution. Early Corporations: The First Indian public corporation
established in India was the Bombay Port Trust (1879). This was a success. The Calcutta and
Madras port Trusts were created later (1905). In 1934, The Reserve Bank of India and in 1935,
The Federal Railway Authority were established.

Later Corporations:
A. Commercial:
State Trading Corporations, Air India, Indian Airlines, Ashoka Hotel, H.M.T. etc.

B. Financial :
Reserve Bank of India, State Bank of India, L.I.C., Industrial Finance Corporation etc.

C. Developmental:
ONGC, F. C. I., Damodar Valley Corporation, River Boards etc.

D. Service:
E.S.I. Corporation, Housing Board, Hospital Boards, etc.

Appointment:
Normally the Government appoints the Chairman, the members of the Board, the secretary & the
Financial Adviser.

Policy:

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In all policy matters, the Government has complete control over the corporations. The trend set
after the Mundhra Affair1 was to interfere in the least.

The Corporation has a right to acquire, hold and dispose of property. It can enter into contracts
and is liable for breach. It is liable for tort.

The Statute is the "Charter" of the corporation. It should exercise its rights, powers, functions
according to it; otherwise it would be-ultra vires. It has powers to make its own Regulations as
per the charter, (statute).

It is autonomous in its day to day management, and, is a "State" within the definition of
authorities, of Art.12 of the Constitution.

Hence, High Courts and Supreme Court have jurisdiction. This was decided by the Supreme
Court in Rajasthan State Electricity Board v. Mohanlal. This is confirmed by the Supreme Court
in Sukhdev Singh v. Bharatram (1975). Hence Fundamental-rights can be enforced against the
public corporations.

Servants:
Servants of Public corporations are not civil servants and hence are outside Art. 311 of the
Constitution. They are subject to the rules and regulations of the corporations. If these rules are
not followed and an employee is dismissed, the dismissal would be void; they are entitled to

1
It was the media that first hinted there might be a scam involving the sale of shares to LIC. Feroz Gandhi sourced
the confidential correspondence between the then Finance Minister T.T. Krishnamachari and his principal finance
secretary, and raised a question in Parliament on the sale of 'fraudulent' shares to LIC by a Calcutta-based Marwari
businessman named Haridas Mundhra. The then Prime Minister, Jawaharlal Nehru, set up a one-man commission
headed by Justice MC Chagla to investigate the matter when it became evident that there was a prima facie case.
Chagla concluded that Mundhra had sold fictitious shares to LIC, thereby defrauding the insurance behemoth to the
tune of Rs. 1.25 crore. Mundhra was sentenced to 22 years in prison. The scam also forced the resignation of
T.T.Krishnamachari.

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reinstatement (Sukhdev Singh v. Bharatram: Here dismissed employees of L.I.C, ONGC & IFC.
were held entitled to reinstatement).
*****
CONTROLS OVER PUBLIC CORPORATIONS:
PARLIAMENTARY CONTROL.
A Corporation as a juristic person is subject to legislative control. The Parliament or state
legislature may control the activities of a Corporation. Questions may be asked in the Houses on
the actual working of a corporation and effective & suitable changes may be introduced for the
successful working of a corporation. Committee on public undertakings 1964 is charged with
general supervision and comptroller and auditor general is to see whether sound business
principles and prudent practices are being followed.

The overall Legislative supervision and control in public interest are therefore provided for even
though it is an autonomous body. The Government has the power to appoint and remove the
Chairman and can therefore effectively control the corporation. Control in the financial sector is
dependent on the Government's involvement.

Budget proposals are to be submitted by corporations for Government's approval. Audit of

accounts is done by the Comptroller and Auditor General of India. "Directives" may be issued by
the Government on all matters of Policy. Government frames the Rules. But Regulations are
made by the Corporations. These should not be against the Rules. Chagla Commission has
recommended a compromise between the Govt. Control and the "Corporations authority" to the
effective exercise of day to day administrative functions.

 A Corporation as a juristic person is subject to legislative control.

 The Parliament or state legislature may control the activities of a Corporation.
 Questions may be asked in the Houses on the actual working of a corporation and
effective & suitable changes may be introduced for the successful working of a
corporation.

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  Committee on public undertakings, 1964 is charged with general supervision and
comptroller & auditor general is to see whether sound business principles and prudent
practices are being followed.
 The overall Legislative supervision and control in public interest are therefore provided
for even though it is an autonomous body.
 The Government has the power to appoint and remove the Chairman and can therefore
effectively control the corporation.
 Control in the financial sector is dependent on the Government's involvement.
 Budget proposals are to be submitted by corporations for Government's approval. Audit
of accounts is done by the Comptroller and Auditor General of India.
 "Directives" may be issued by the Government on all matters of Policy.
 Government frames the Rules. But Regulations are made by the Corporations. These
should not be against the Rules.
 Chagla Commission has recommended a compromise between the Government Control
& the "Corporation’s authority" to the effective exercise of day to day administrative
functions.

JUDICIAL CONTROL.
A Corporation is within the definition of "other authorities" under Art.12 of the Constitution. As
such they are subject to judicial scrutiny under Arts.226 & 227 by High Courts, and Art.32 by
the Supreme Court. Judicial control is essential when the rights and liberties of persons are
affected. Hence, the Courts have jurisdiction over the corporations and have powers to declare
the act of corporation as ultra vires, where such acts are beyond powers. The Corporations are
liable for breach of contractual obligations.

The Theory of separate juristic person of a corporation caused great hardship to the employeecs
as well as to third parties, by the acts of the Government, through the corporations. Hence, the
Court may tear the veil of the corporation to know "its real nature", to provide a suitable remedy.

Leading Cases:
J.I.R. v. Sunil Kumar.

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Hindusthan Antibiotics v. Its Workmen.

If the regulations or actions of the corporation are illegal, unreasonable or arbitrary, the courts
declare them as ultra vires Art.14of the Constitution. Hence while granting jobs, largess,
Government-contracts, tenders, granting of licences, issue of quotas, the corporation should act
according to law and the Constitution. The Court’s broad parameters are fairness in
administration, reasonable management of public business and bona fides.

 A Corporation is within the definition of "other authorities" under Art.12 of the

Constitution. As such they are subject to judicial scrutiny under Arts.226 & 227 by High
Courts, and Art.32 by the Supreme Court. J
 Judicial control is essential when the rights & liberties of persons are affected.
 Hence the Courts have jurisdiction over the corporations and have powers to declare the
act of corporation as ultra vires, where such acts are beyond powers. The Corporations
are liable for breach of contractual obligations.
 The Theory of separate juristic person of a corporation caused great hardship to the
employees as well as to third parties, by the acts of the Government, through the
corporations.
 Hence, the court may tear the veil of the corporation to know "its real nature", to provide
a suitable remedy.
 If the regulations or actions of the corporation are illegal, unreasonable or arbitrary, the
courts declare them as ultra vires Art.14 of the Constitution.
 Hence while granting jobs, largess, Government-contracts, tenders, granting of licences,
issue of quotas, the corporation should act according to law and the Constitution.
 The Court’s broad parameters are fairness in administration, reasonable management of
public business and bona fides.

GOVERNMENTAL CONTROL.
 Ordinarily the Government does not interfere in the day to day functions of public
corporations and it examines overall general control over their functions.

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  The Governmental control over the public corporations is not uniform. It varies from
corporation to corporation.
 The Governmental exercises its control over the public corporations in the following
ways:
1) Appointment and Removal:
 Generally, Government has power to make appointment to the top positions and remove
therefrom.
 Usually, the Government is given power to appoint and remove the Chairman and the
members of a public corporation.
 For example, the Damodar Valley Corporation Act, 1948, provides that the Chairman
and Members of the Board of Management will be appointed by the Government of India
in consultation with the Governments of the State of Bihar and West Bengal and they
may be removed by the Government of India for incapacity or abuse of position.
2) Directive to the Corporation
 One of the important methods of Governmental Control of the public corporation is to
authorise the Government to issue directives to the public corporation on the matters of
policy.
 For example, the Life Insurance Corporation Act, 1956, provides that in the discharge of
its functions under this Act, the Corporation shall be guided by such directions in matters
of policy involving public interest as the Central Government gives it.
3) Finance
 Generally, the Government is vested with the powers of controlling the borrowing
expenditure and capital formation. For example, the Oil and Natural Gas Commission
Act, 1956, provides that the Commission can borrow money with the prior approval of
the Central Government.
4) Enquiries
 Usually the Government is given power to order enquiries regarding the functions of the
public corporation.
 By this method, the misuse of the power by the corporation can be brought in to light and
such misuse may be checked and suitable action may be taken by the Government.
4) Rules and Regulations

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  Usually the statute creating the corporation empowers the Central Government to make
rules to give effect to the provisions of the Act.
 This also helps the Government in controlling the public corporation.

PUBLIC CONTROL.
 The Consumer Protection Act, 1986, makes provisions for the establishment of the
Central Consumer Protection Council and State Consumer Protection Councils.
 These Councils are expected to be useful in controlling the public enterprises including
public corporations in the interest of the consumers.
 They will be helpful in curbing the growth of corrupt practices.
 The Case against the Public Corporations comes to the court through the public interest
litigation also.
 The Courts issue the writ of mandamus to the public undertaking for performance of its
duty. [Corporation of Nagpur v. Nagpur Electricity Co., AIR 1958 Bom.498]
 The Courts have also interfered in cases of fixation of rates or prices unreasonably or
arbitrarily. [Assn. of Natural Gas Consuming Industries v. ONGC (1983) 24 (2) Guj LR
1437]
 The Courts have also interfered in the case of arbitrary disconnection of telephone.
[Hukum Chand v. Union of India, AIR 1979 SC 789]
 In a case, the Supreme Court has made it clear that the public corporation being
instrumentality of the Government must act reasonably and their act must be in
conformity of the principles which meet the test of reasonableness.
 Their act must not be in violation of the Article 14 if the Constitution.
Some of the important public corporation established by the Union government are:
 Reserve Bank of India (1935)
 Damodar Valley Corporation (1948)
 Industrial Finance Corporation of India (1948)
 Indian Airlines Corporation (1953)
 Air India International (1953)
 State Bank of India (1955)
 Life Insurance Corporation of India (1956)

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  Central Warehousing Corporation (1957)
 Oil and Natural Gas Commission (1959)
 Food Corporation of India (1964)

Some of the important public corporations established by state governments are:

 State Financial Corporations
 State Road Transport Corporations
 State Land Mortgage Banks
 State Electricity Boards
*****
ROLE OF OMBUDSMAN IN PUBLIC UNDERTAKING.
OMBUDSMAN.
 An ombudsman is a person who acts as a trusted intermediary between an organization
and some internal or external constituency and represents not only but mostly the broad
scope of constituent interests.
 An ombudsman is an official, usually appointed by the government or by parliament,
who is charged with representing the interests of the public by investigating and
addressing complaints reported by individual citizens.
 An Ombudsman is usually appointed by the organization, but sometimes elected by the
constituency. may, for example, investigate constituent complaints relating to the
organization and attempt to resolve them, usually through recommendations or
mediation.
 May sometimes identify organizational roadblocks running counter to constituent
interests. In some jurisdictions an ombudsman charged with the handling of concerns
about national government is more formally referred to as the Parliamentary
Commissioner (e.g., the United Kingdom Parliamentary Commissioner for
Administration, and the Western Australian state Ombudsman.
 In many countries where the ombudsman's remit extends beyond dealing with alleged
maladministration to promoting and protecting human rights, the ombudsman is
recognized as the national human rights institution .

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OMBUDSMAN IN VARIOUS SECTORS
 Electrictiy Ombudsman
 Insurance ombudsman
 Banking ombudsman
 Income tax ombudsman
 Anti corruption ombudsman

OMBUDSMAN IN INSURANCE SECTOR

 The Insurance Ombudsman scheme was created by the Government of India for
individual policyholders to have their complaints settled out of the courts system in a
cost-effective, efficient and impartial way.
 There are at present 17 Insurance Ombudsman in different locations and any person who
has a grievance against an insurer, may himself or through his legal heirs, nominee or
assignee, make a complaint in writing to the Insurance ombudsman within whose
territorial jurisdiction the branch or office of the insurer complained against or the
residential address or place of residence of the complainant is located.
 You can approach the Ombudsman with complaint if:
 You have first approached your insurance company with the complaint and
 They have rejected it
 Not resolved it to your satisfaction or
 Not responded to it at all for 30 days
 Your complaint pertains to any policy you have taken in your capacity as an individual
and
 The value of the claim including expenses claimed is not above Rs 30 lakhs.

Your complaint to the Ombudsman can be about:

a) Delay in settlement of claims, beyond the time specified in the regulations, framed under the
IRDAI Act, 1999.
b) Any partial or total repudiation of claims by the Life insurer, General insurer or the Health
insurer.
c) Any dispute about premium paid or payable in terms of insurance policy

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d) Misrepresentation of policy terms and conditions at any time in the policy document or
policy contract.
e) Legal construction of insurance policies in so far as the dispute relates to claim.

Your complaint to the Ombudsman can be about:

f) Policy servicing related grievances against insurers and their agents and intermediaries.
g) Issuance of life insurance policy, general insurance policy including health insurance policy
which is not in conformity with the proposal form submitted by the proposer.
h) Non issuance of insurance policy after receipt of premium in life insurance and general
insurance including health insurance and
i) Any other matter resulting from the violation of provisions of the Insurance Act, 1938 or
the regulations, circulars, guidelines or instructions issued by the IRDAI from time to time or the
terms and conditions of the policy contract, in so far as they relate to issues mentioned at clauses
(a) to (f)

Recommendation:
 The Ombudsman will act as mediator and
 Arrive at a fair recommendation based on the facts of the dispute
 If you accept this as a full and final settlement, the Ombudsman will inform the company
which should comply with the terms in 15 days
Award:
 If a settlement by recommendation does not work, the Ombudsman will:
 Pass an award within 3 months of receiving all the requirements from the complainant
and which will be binding on the insurance company

Once the Award is passed:

 The Insurer shall comply with the award within 30 days of the receipt of award and
intimate the compliance of the same to the Ombudsman.
*****

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 II YEAR OF 3 YEAR LL.B
SEMESTER - IV
EVEN SEMESTER

Page 1 of 137
SUBJECT : INTERNATIONAL LAW
SUBJECT CODE : TA4D

Page 2 of 137
 SYLLABUS

TA4D - INTERNATIONAL LAW

Unit - I Introduction :

International Law- Definition; Basis; nature and Weakness -Differences between

Public International Law and Private International Law - Codification.

Unit - II Sources of International Law.

Unit - III International Law and Municipal Law- Relationship.

Unit - IV Subjects of International Law:

State as a Subject - Rights and Duties or Responsibilities of State - Individual as a

Subject of International Law.

Unit - V State Succession and Liability.

Unit - VI Territorial Sovereignty - Modes of Acquisition and Loss of Territory; Jurisdiction;

Law of Sea; law of the Air.

Unit- VII Extradition and Asylum; Nationality Acquisition and Loss Related Problems -
Refugees - Nuremberg Trial.

Unit - VIII Diplomatic Agents - Consular Missions - their Position, Privileges and
Immunities.

Unit - IX International Treaties - Negotiations - Conclusion of Treaties - Various Stages -

Reservation; Observance of Treaties - Interpretation of Treaties - Suspension and
Termination of Treaties.

Unit - X International Organizations - UNO - General Assembly; Security Council;

International Court of Justice - International Tribunals.

Books for Reference

1. Starke : International Law

2. S.K. Kapoor : International Law
3. K.K. Bhattacharya : International Law
4. Agarwal : International Law
5. Oppenheim : International Law
6. Briely : International Law
7. Schwarzenegger : International Law
****************

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 Unit – 1

Introduction
Public international law concerns the structure and conduct of sovereign states and
also Holy See. It also sometimes concerns multinational corporations and individuals. Public
international law has increased in use and importance vastly over the twentieth century, due
to the increase in global trade environmental deterioration on a worldwide scale, awareness of
human rights violations, rapid and vast increases in international transportation and a boom in
global communications.

Public international law combines two main branches:

1. The law of nations (Jus Gentium) and

2. The international agreements and conventions (Jus Inter Gentes)

Private international law is concerned with the resolution of conflict of laws international law
“consists of rules and principles of general application dealing with the conduct of states and
of intergovernmental organizations and with their relations with persons, whether natural or
legal or juristic.

International legal theory:-International legal theory comprises a variety of theoretical and

methodological approaches usedto explain and analyze the content, formation and
effectiveness of public international law.Some approaches center on the question of
compliance:

Classical approaches to International legal theory are:

1. The natural law: The natural law approach argues that international norms should be
based on axiomatic truths.

2. The EclecticIn 1625 Hugo Grotius argued that nations as well as persons ought to be
governed by universal principle based on morality and divine justice while the relations
among polities ought to be governed by the law of peoples, the jus gentium, established by
the consent of the community of nations on the basis of the principle of pactasuntservanda,
that is, on the basis of the observance of commitments.

3. The legal positivism schools of thought

• The early positivist school emphasized the importance of custom and treaties
assourcesof international law.

• 16th century the historical examples showed the positive law (jus voluntarium)
wasdetermined by general consent.

• Bynkershoek asserted that the bases of international law were customs and
treatiescommonlyconsented to by various states.

• Moser emphasized the importance of state practice in international law.

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 • The positivism school narrowed the range of international practice that might
qualifyaslaw, favouring rationality over morality and ethics.

• The 1815 Congress of Vienna marked the formal recognition of the political and
internationallegal system based on the conditions of Europe.

• Modern legal positivists consider international law as a unified system of rules

thatemanates from the states’ will. International law, as it is, an “objective” reality
that needs to be distinguished from law “as it should be.” Classic positivism demands
rigorous tests forlegal validity and it deems irrelevant all extralegal arguments.

Definition of International Law

Introduction :

The word " International law"is synonyms and equivalent to the words "law of nations
". It was first used by Jeremy Bentham in 1989. Prior it, International Law was known as the
law of nations. Most of jurists are of the opinion that International Law regulates a relation of
states with one another and they therefore define the term of International law as a law of
nations.

Traditionally International Law has been defined as, " a system of rules governing the
relation between the states only. Thus, it exists for governing the relationship between
different states ".

Some of the Definitions of International law are as Follows :

1) Oppenheim :

According to Oppenheim " Law of Nations or International Law is the name for the
body of customary and treaty rules which are considered legally binding by civilized States in
their intercourse with each other. (This Definition is subject to severe Criticism.)

2) Hall :

According to hall, " International Law consists in certain rules of conduct which the
modern civilized states regard as being binding on them in their relation with one another."

3) Hughes :

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 rests upon the
Consent of Sovereign States."

4) J.L. Brierly -

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 " The law of Nations or International Law, may be defined as the body of rules and
principles of action which are binding upon civilized states in their relations with one
another."

5) G. J. Starke :

International Law may be defined as that body of law which is composed for its greater
part of the principles and rules of conduct which States feel themselves bound to observe,
and, therefore, do commonly observe in their relations with each other and which includes
also :

a) the rules of law relating to the functioning of international institutions or

organizations, their relations with each other, and their relations with States and individuals;
and

b) certain rules of law relating to individuals and non-state entities so far as the
rights or duties of such individuals and non state entities are the concern of the International
community.

6) Philip C. Jessup -

" Law applicable to States in their mutual relations with states "

7) Gray -

According to Gray "International Law or the law of nations is the name of body of
rules which according to the usual definitions regulate the conduct of the States in their
intercourse with one another. "

8) Kelsen -

" International Law or the Law of Nations is the name of a body of rules which
according to usual definition regulate the conduct of the states in their intercourse with one
another " .

9) Marel St Korowicz

Marel St Korowicz defines International Law as, "International Law is the Body of legal
rules which govern mutual relations of sovereign States, and also the institutions of other
legal persons and of Individuals, which are not Subject to the Internal law of any Particular
State.

10) Soviet definition and Approach to international law –

" Thesome total or the norms regulating relations between states in the process of their
struggle and co-operation, expressing the will of the ruling classes of these states and secured
by coercion exercised by states individually and collectively. "

Another eminent Russian writer defined International law as " the totality of norms,
which were developed on the basis of agreements between the states which govern their
relations in the process of struggle and co-operation between them, expressing the will of the

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ruling classes, and are enforced in case of necessity, by the pressure of the ruling classes,
and are enforced in case of necessity , by the
pressure applied either collectivelyor by individual tates.

Sir Robert Jennings & Sir Arthur Watts

International Law is the body of rules which are legally binding on states in their
intercourse with each other. These rules are primarily those which govern the relation of
states, but states are not the only subjects of international law. International organizations
and, to some extent, also individuals may be subjects of rights conferred and duties imposed
by international law.

Nature of International Law

Austin quotes that Sanction occupies an important place in the Enforcement of Law.
People follow because they are compelled to do so.Hobbes states that, man is by nature nasty,
brutish and violent fear or sanction is inherent in law is necessary to maintain order in
society.Thus they deny the legal character of international law as the command of the
sovereign having a coercive enforcement agency.

(i) Lacks Superior Political Authority

(ii) Lacks Effective Legislative Machinery

(iii) Lacks Sanction

(iv) Lacks Executive Power

(v) Lacks Potent Judiciary

Prof. Oppenheim defines that, “this definition of law does not cover the customary law
or unwritten law”.

Oppenheim thus defines law as, “a body of rules for human conduct within a
community which by common consent of this consent of this community shall be enforced by
external power”.

Basis of International Law

International Law has its true basis explained by two theories.

(i) Theories as to Law of Nature

(ii) Theory of Positivism

Theories as to Law of Nature

This Theory from the very beginning, explained that International Law is a part of
Law of Nature. It linked with religion and god. Vattel, Pufendrof, Christian Thomasius, etc.
propounded this theory of international law as divine law. Hugo Grotius secularized the Law

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 of Nature and was the first person to propound that all states are subjects of International Law
regulated by it as an individual.It linked with religion and god. Vattel, Pufendrof, Christian
Thomasius, etc. propounded this theory of international law as divine law. Hugo Grotius
secularized the Law of Nature and was the first person to propound that all states are subjects
of International Law regulated by it as an individual.

Criticism:

The meaning and purpose of ‘Law of Nature’ is elastic, vague, ambiguous and
uncertain. It is not based on realities as actual practice differs from the principles of law of
nature.

Positivism Theory

Positive means actual or certain. According to this theory, the law enacted by
appropriate legislative authority is binding and is based on actual practices of the States.
Bynker-Shoek, Hegel, Anzilotti, etc. are the main exponents of this theory.

Criticism: This theory accepts custom as a binding force in international law but fails
to explain as a source and binding force in states in international law.

Whether the International Law is law in the proper sense of the term?

INTRODUCTION: -

Austin in his definition of law has given more importance to sanction and fear in
compliance of law. In case of International law there is neither sanction nor fear for its
compliance hence it is not law in proper sense of the term. But now the concept has changed
and International Law is considered as law. There is no consideration of fear or sanction as
essential part of law. If fear and sanction are considered necessary then there are sufficient
provisions in UNO charter for compliance of the International Law as Law :-

According to Bentham’s classic definition international law is a collection of rules

governing relations between states. Two of the most dynamic and vital elements of modern
international law.

1. In its broadest sense, International law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors i.e. primarily
sovereign states but also increasingly international organizations and some individuals.

2. Although international law is a legal order and not an ethical one it has been influenced
significantly by ethical principles and concerns, particularly in the sphere of human rights.
International is distinct from international comity, which comprises legally nonbinding
practices adopted by states for reasons of courtesy. e.g. the saluting of the flags of foreign
warships at sea.)

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 INTERNATIONAL LAW AS REALLY LAW

According to Oppenheim, International Law is law in proper sense because:-

 In practice International Law is considered as law, therefore the states are bound to follow
them not only from moral point of view but from legal point of view also.
 When states violate international law then they do deny the existence of international law
but they interpret them in such a way so that they can prove their conduct is as per
international law.

Starke while accepting International Law as Law has said, “that in various communities law is
in existence without any sanction and legal force or fear and such law has got the same
acceptance as the law framed and enacted by state Legislative Assemblies.

 With the result of international treaties and conventions International Law is in

existence.

U.N.O. is based on the legality of International Law. According to Prof.Briely, “To deny the
existence and legal character of International Law is not only inconvenient in practice but it is
also against legal thoughts and principles.”

 The states who are maintaining the international relations not only accept
International Law as code of conduct but has also accepted its legal sanction and
force. Prof. Hart, “There are many rules in practice which are honoured by states and
they are also bund by them, now the State Government accept the existence of
International Law.” According to Jus Cojens, “International Law may now properly
be regarded as a complete system.”
 It is pertinent to mention here that from the above noted contents it is clear that the
following grounds are supportive for accepting the International Law as law:-

 Now so many disputes are settled not on the basis of moral arguments but on the basis
of International Treaties, precedents, opinions of specialists and conventions.

 States do not deny the existence of International Law. On the contrary they interpret
International Law so to justify their conduct.

 In some states like USA and UK international Law is treated as part of their own law.
A leading case on the point is the, Paqueta v/s Habanna-1900. Justice Gray
observed that the international law is a part of our law and must be administered by
courts of justice.”

 As per statutes of the International Court of Justice, the international court of Justice
has to decide disputes as are submitted to it in accordance with International Law.

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  International conventions and conferences also treat international Law as Law in its
true sense.

 The United Nations is based on the true legality of International Law.

 That according to article 94 of UNO charter, the decisions of the International Court
of Justice are binding on all Parties (States).

 Customary rules of International Law are now being replaced by law making treaties
and conventions. The bulk of International Law comprises of rules laid down by
various law-making treaties such as, Geneva and Hague conventions.
 On the basis of above mentioned facts and arguments, the International Law is law in
true sense of the term. United States and U.K., treat International Law as part of their
law. In a case of West Rand Central Gold Mining Company Ltd., v/s Kind-
1905, the court held the International Law has considered it as a part of their law.
From the above analysis it is revealed that the International Law is law. The
International Law is law but the question arises as to what are the basis of
International Law. There are two theories which support it as real law:

1. Naturalist Theory:- The Jurists who adhere to this theory are of the view that International
Law is a part of the Law of the Nature. Starke has written, “States submitted to International
Law because their relations were regulated by higher law, the law of Nature of which
International Law was but a part.” Law of nature was connected with religion. It was
regarded as the divine Law. Natural Laws are original and fundamental. They incorporate the
will of the Governor and governed and advance their consent or will. That is why
international law is also based on natural law.

VattelFurfendorf, Christain, Thamasius, Vitona are the main supporters of this

theory.It was viewed that natural law is uncertain and doubtful but it is accepted that Natural
Law has greatly influenced the growth and has given the birth to International Law and its
development. Most of its laws are framed from Natural Law.

2. Positivist Theory:- This theory is based on Positivism i.e. law which is in the fact as
contrasted with law which ought to be. The positivists base their views on the actual practice
of the states. In their view customs and treaties are the main sources of International
Law. According to German economist, Heagal, “International Law is the natural consent
of states. Without the consent of states, no law can bind the states. This consent may be
express or implied.” As pointed out by Starke, “ International Law can in logic be reduced
to a system of rules depending for their validity only on the fact that state have consented to
them.” As also pointed by Brierly, “The doctrine of positivism teaches that International
Law is the sum of rules by which states have consented to be bound.” As said by
Bynkeshock, “The basis of International Law is the natural consent of the states. Without the
consent of states no law can bind the states.”

The critics of the above views say that consent is not always necessary for all laws. There are
some laws which are binding on states irrespective of their consent e.g. Vienna Convention

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on the Law of Treaties. Article 36 of the Treaty says that the provisions of the Treaty may be
binding on third parties even if they have not consented to it.

CONCLUSION: - Gossil Hurst says, “That International Law is in fact binding on states,
because they are states.” This is very much correct because every state in the world wants
peace, Law and order and that is possible only through existence of International Law.
Therefore it is in natural interest of States to accept the existence ofInternationalLaw.

International Law is the vanishing point of Jurisprudence.

INTRODUCTION:-

International Law is a new subject to the human beings. Hugo Grotiousthought to have
international law having a world-wide machinery to enforce rules. After 1st World War, the
international organization named “League of Nations” failed due to several reasons. After 2nd
World War, the United Nations Organization seemed to be successful in its operation.Several
Jurists like Holland, Austin, etc. say that Public International law is a vanishing point of
jurisprudence since there is no binding force and no machinery for its implementation.
Arguments given by these Scholars:

1. International Law has no binding Force.

2. It lacks sanction and force – the essential elements of municipal law.

Jurists have severely criticized the arguments of Austin and Holland. They say the signatories
are bound to follow the terms of treaties and conventions. “PactaSuntServanda”
(Agreements must Survive) and Consensus Ad Idem (Collective Agreements must be
established) are the principles behind the binding force.

Holland has remarked that International Law is the vanishing point of jurisprudence in his
view , rules of international law are followed by courtesy and hence they should not be kept
in the category of law. The international Law is not enacted by a sovereign King. It has also
no sanctions for its enforcement which is the essential element of municipal law. Holland
further say that International Law ass the vanishing point of Jurisprudence because in his
view there is no judge or arbiter to decide International disputes and that the rules of the I.
Law are followed by States by courtesy.

Austin also subscribes to this view, Justice V.R.KrishnaIyer formally member of Indian
Law Commission has also remarked, “It is a sad truism that international law is still the
vanishing point of jurisprudence. This view is not correct. It is now generally agreed that
Holland’s view that international law is the vanishing point of jurisprudence is not
correct.

But now it is well settled that International Law is law. It is true that International Law is not
enacted by sovereign and has no agency for its enforcement. But it is true that it is a weak
law. A majority of International lawyers not subscribe to this view is based on the

Page 11 of 137
 proposition that there are no sanctions behind international Law are much weaker than their
counterparts in the municipal law, yet it cannot be successfully contended that there are no
sanctions at all behind international law.
The jurists who do-not consider international law as the vanishing point of jurisprudence say
that there is difference between state law and International Law. International Law cannot be
enacted by the state but still there is agency for its enforcement. According to Dias,
“International Law is obeyed and complied with by the states because it is in the interests of
states themselves.”

For this object they give the following arguments:-

1. The judgements of International court of Justice are binding on States.

2. If any state does not honour the order/judgement of International court of justice, the Security
Council may give its recommendation against that state for action.
3. The judicial powers of International Court of justice (Voluntarily and compulsory) have been
accepted by the States.
4. The judgement of International court of Justice has been followed till date.
5. The system of enforcement i.e. sanctions and fear, has been developed.

For example :- If there is a threat to international peace and security, under chapter VII of
the U.N. Charter, the security council can take necessary action to maintain or restore
international peace and security. Besides this the decisions of the International Court of
Justice are final and binding upon the parties to a dispute.

The gulf war 1991 Iraq trespassed and acquired the whole territory of Quait in her
possession by violation of International Law. The Security Council passed a resolution
against Iraq and asked her to liberate Quait. But Iraq did not honour the resolution of Security
Council; hence therefore may economic and political restrictions were composed against
Iraq. But all in vain. Then USA and her allies were permitted to compel Iraq to honour
resolution of Security Council. Consequently USA and her allies used force against Iraq and
freed Quait.
The same action was taken against North Korea and Cango during the year l948 and 1961.
The Security Council imposed penalty against Libya for shooting down American Plane in
Lockerbie (Scotland) in 1992, consequently two citizens were also killed. The Security
Council forced Libyan Government to surrender two terrorists who were involved in this
mishap and Libya obeyed the order of S. Council.
The greatest proof of its utility and importance is the fact that its successor the International
Court of Justice established under the United Nations charter is based on the Statute of the
Permanent Court of International Justice, the United Nations & Security Council Charter
possess wide powers to declare sanctions against the states who are guilty of violence of the
provisions of the same under chapter-VII
Thus International Law is in fact a body of rules and principles which are considered to be
binding by the members of International Community in their intercourse with other. The

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legal character of International Law has also been recognized in 1970 Declaration on the
Principle of International Law Concerning Friendly relation and Cooperation among states.

Conclusion:- On the basis of above discussion it may be concluded that the International
Law is in fact law and it is wrong to say that it the vanishing point of Jurisprudence.

Is International Law a Mere Positive Morality?

Legislation stands in a superior position in the Administration of Justice. Whereas the

Legislation cannot dare to make law which is opposed to morals in the society. Morals do
regulate the conduct of men in the society. Both intersect and overlap each other.

Austin Quotes, “International Law is not true law, but a code of rules of conduct of moral
force only. Law is the command of the Sovereign. Law is the aggregate of rules set by men as
politically superior, or sovereign, to men as politically subject.”

Sl.No Law Morality

Law demands an absolute subjection to Morality demands that states should act
1.
its rules and commands from a sense of ethical duty.
2. Law has enforcing authority Morality has no such enforcing authority
3. It is heteronomous (Outer life of Men) It is autonomous (Inner life of Men)
4. It relates State relations with others Moral Principles does not relate
The Legal duty involves a
It is also accompanied by a corresponding
5. corresponding right and such right is
right but it is not enforceable
enforceable.
Legal rules admit the principle of Moral rules does not admit even in
6.
alteration principle
Morality also applies to all subjects but
7. The law applies to all subjects
depends from subject to subject
UNO has become organized and No such organization is found in
8.
enforcement machinery. enforcement.

Arguments given by these Scholars:

1. International Law has no binding Force.

2. It lacks sanction and force – the essential elements of municipal law.

Jurists have severely criticized the arguments of Austin and Holland. They say the signatories
are bound to follow the terms of treaties and conventions. “PactaSuntServanda”
(Agreements must Survive) and Consensus Ad Idem (Collective Agreements must be
established) are the principles behind the binding force.

Berubari’s Case (1960)

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 India and Pakistan had an agreement to transfer the area of Berubari to Pakistan in
1958.Berubari is a small area having 9 sq. miles and 12,000 populations in the state of west
Bengal.Several agitations and suits were filed against the agreement. Supreme Court gave an
advice to the president that the area can be transferred on a majority of opinion by the Indian
parliament. However, India handed over berubari to Pakistan as an “Act of State”.

Iraq-Kuwait Issue (1990)

Iraq occupied Kuwait. The Security Council and the General Assembly condemned
Iraq. But Iraq never cared. Hence the Security Council resolved to lesson Iraq to free Kuwait.
It imposed economic sanction and used force to on Iraq with the support of the member states
and freed Kuwait from Iraq.

South African Apartheid

The Security Council imposed economic sanctions on the South African government
white government condemning the apartheid policies. And the economic sanctions have been
lifted after the change in the apartheid policies.

Bosnia and Somalia

In Bosnia the Serbs are killing Muslims. UNO sent its troops to control the situation
and controlled to a greater extent. In Somalia there were different guerrilla groups fighting
against each other. It caused famine and drought. The UNO sent its army to help somalians in
feeding the needy people and controlling the situation in establishing peace.

Conclusion

International Law is not the vanishing point of jurisprudence. Its effectiveness

depends upon the co-operation of the consenting nations in effective implementation and
enforcement. Hence, it is wrong to say that international law is the vanishing point of
Jurisprudence.

Sl. No. Public International Law Private International Law

On a Major part, It deals with States and It deals with Individuals only
1.
to a minor part deals with Individuals.
2. It is not always a part of Municipal Law It is a part of Municipal Law
It is same for all states (General It differs from state to state
3.
Principles or General Application)
Conflict arises as to application of Conflict of Law occur in application of
4.
municipal law or international law. different state law
The jurisdiction of the court is under It determines the jurisdiction of the
5.
conflict. Court
It Comprises of Rules recognized by the It is framed by the legislature of a State
6. State, in their relation with each other. and recognized and developed by State
Courts.

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Codification

Codification connotes a systematic arrangement of the rules of law which are already
in existence. Codification properly conceived is itself a method of the progressive
development of law.

Codify = to arrange laws into a system.

(1) Harmonization and coordination of various municipal laws as far as practicable;

(2) Arranging the existing customary international law in a systematic process;

(3) It includes all conventions, treaties, charters, etc.

Definition

Lauterpacht defines it as, “The task of codifying international law, if it is to mean anything,
must be primarily one of bringing about an agreed body of rules already covered by
customary or conventional agreement of State”.

History of Codification

History of Codification dates back to the 18th Century which is originated by

Bentham.Declaration of Paris was signed by 7 countries, Britain, Russia, France, Austria,
Turkey, Prussia and Sardinia in 1856 in Paris. The 1st Hague Conference was convened in
1899 by Russian Emperor Nicholas on Codification.2nd Hague Conference was convened in
1907, in which 44 states attended.After the 1st World War, the League of Nations took utmost
care to codify the subjects, i.e. Nationality, Territorial Waters, State Responsibility, Piracy,
etc. The Hague Codification Conference conducted in 1930 was the first conference on the
codification of international law.

The Charter of United Nations

The Charter of United Nations gives an important recognition for codification on

international law.Article 13 (1) (a) of charter of United Nations provides : “The General
Assembly shall initiate studies and make recommendations for the purpose of; promoting
international cooperation in the political field and encouraging the progressive development
of international law and its codification”.

International Law Commission

The General Assembly has established International Law Commission. The

International Law Commission has given several reports and recommendations for the
development of international law. It gave several guidelines for the codification of
international law. It has submitted several drafts and relating to law of Seas, treaties,
Diplomatic intercourse and immunities, Human Rights, World Trade, etc.

Merits of Codification

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 1. Certainty

2. Customs

3. Unification

4. Avoids Conflicts.

De - Merits of Codification

1. Rigidity

2. Scarification of Individuality

3. Lack of coordination

4. Codification cannot be a complete and self – sufficing.

Weaknesses of International Law & the suggestions for improving the International Law

INTRODUCTION: - International Law is said to be a “weak Law.” The weaknesses of

International Law become evident when we compare it with Municipal Law. Its weaknesses
reflected in most of cases when these are compared with the state law. The following are
some of the weaknesses of International Law:-

WEAKN ESSES

l. The greatest shortcoming of International Law is that it lacks an effective executive

authority to enforce its rues.

2. Lacks Of effective legislative machinery:- Since the International Laws are based on
international treaties and conventions. Therefore these are interpreted by the states according
to their self interest.

3. The International court of Justice lacks compulsory jurisdiction in the true sense of
the term :- The International court of Justice which is situated in Hague (Netherland) is not
authorised to take cases of all states. The cases can be filed in this court with the mutual
consent of concerned states.

4. Due lack of effective sanctions, rules of International Law are frequently violated:-
There is no sense or fear of sanction in the International Law with the results the laws are
violated frequently by the States.

5. Lack in right to intervene in Internal Affairs :- As per article 2(7) of UNO Charter,
UNO is not competent to interfere in the domestic matters of states. International law cannot

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interfere in the domestic matters. Keeping in view these facts in several cases International
Law proves to be ineffective and weak.

6. UNCERTAINTY:- There is one more reason behind the weakness of International Law
is its uncertainty. It is not certain as the laws of states as well as Municipal law. In addition
to this it has not been able to maintain international peace and order.

It is now very much clear from the above facts that International Law is weak. Paton says
that , “ from institutional point of view International Law is a weak. It has no legislative
support though there is international court of justice but that functions or takes case on the
basis of mutual consent of states. It has no power to get the decisions implemented.”

According to Karbet, “The main course of weakness of International Law is the lack of
social solidarity among highly civilised states.

A case of Queen v/s Ken – 1876 :- There is no such institution or body which can enact laws
for sovereign states and there is no court also which can enforce its decision and to bind the
states.”
SUGGESTIONS FOR IMPROVING INTERNATIONAL LAW

Despite the above mentioned weaknesses, it has to be noted that International Law is
constantly developing and its scope is expanding. It is a dynamic concept for it always
endeavours to adopt itself to the needs of the day. As compared to Municipal Law the
International Law is works in a decentralised system. This is because of the facts that the
International policies, Inter-dependence of states and the continuous growth of the concept of
International or world community. However the weaknesses of the International Law may
be improved in following ways:-

l. The International Court of Justice should be given compulsory jurisdiction, in the true sense
of term overall international disputes.

2.An International Criminal Court should be established to adjudicate cases relating to

international crimes.

3. International Laws should be properly codified.

4. The machinery to enforce the decisions of the International Court of Justice should be
strengthened.

5. An International Police system should be established to check international crimes and to

enforce the rules & principles of International Law.

6. An international Bureau of Investigation and prosecution should be established for

investigation of matters relating to International crimes and the prosecution of International
criminals.

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7. The U.N.O. should be authorised to intervene in the internal matters of states.

8. For settlement of international disputes the use of judicial precedents must be encouraged.

9. There must be constant review of International Law.

10. Last but not the least there must be basic recognition of the interest which the whole
international society has in the observance of its laws.

CONCLUSION: - It is pertinent to mentioned here that the General Assembly of UNO

should made fruitful efforts in this direction. The above suggestions will make International
Law equivalent to a Municipal Law to some extent. With the growth of Internationalism and
the feeling of universal brotherhood international aw will also become effective and
powerful.

Unit – 2

Sources of International Law

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Meaning and Source

 The Sources of International Law means the methods of procedures by which

International Law is created.
 Article 38 of the Statute of International Court of Justice explains the mode of
application of law. And restricts its Jurisdiction on the basis of “ex aequo et
bono”

Sources of International Law

 International Conventions
 International Customs
 General Principles of Law recognized by the civilized nations.
 Decisions of Judicial or Arbitral Tribunals and Juristic Works.
 Decisions of Determinations of the Organs of International Institutions and
 Ex aequo et bono.

International Conventions

 Article 38 of the Statute of ICJ lists,

o “International Convention whether general or particular, establishing rules
expressly recognized by the contesting states”.
o Manely O. Hudson points out that, treaty, convention, protocol or agreement
regardless of the form applies to be a form of Conventions.

International Law acquires binding force by “Consensus ad idem” (agreeing of opinions) of

States done by conventions.

Examples.

 Convention of the Law of Sea 1982

 Geneva Convention on territorial sea and the Contiguous Zone, 1958
 Vienna Convention on Diplomatic Relations, 1961
 Vienna Convention on Law of Treaties, 1969.

Conventions = The act of convening a conference, a body of delegates assembled for a

common purpose. It includes treaty, protocol, agreement, convention, etc.

General Convention = Convention which is signed and adopted by all or majority of States.
Ex. The Law of Sea 1982.

Particular Convention = A treaty between two or more States.

Treaty – Article 2 of Vienna Convention on the Law of the Treaties, 1969 provides: “A treaty
is an agreement whereby two or more states establish or seek to establish a relationship
between them governed by international law”.By sighing a convention or a treaty or an
agreement, the signatory state is bound to oblige the terms and conditions of that treaty or an
agreement. This is established by the Principle called as “Pactasuntservanda” (an agreement
must survive).Ex. Economic Sanctions imposed by UNO on Iraq and South Africa.

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 Leo Gross, in his book “Sources of Universal International Law” opines that
Conventions and Treaties are the main source of New International Law, having a strong
binding force than other sources.

Custom as a Source of Law

 Article 38 (1) (b) of the Statute of the ICJ defines custom as a source of
International Law = “International Custom, as evidence of a general practice
accepted as law”
 Jus Cogens :which means peremptory norm. Article 53 of vienna convention
provides that a treaty is void when it conflicts with the peremptory norm of
international law.

Custom and Usage

 Custom = Long established practice having the force of law.

 Usage = Long established use or custom.

TorsenGihl, in his book “The Legal Character and Sources of International Law”
differentiates as :

(i) in certain cases usage gives rise to international law and not in certain cases. But there is
no rule that usage shall be a custom.

(ii) custom includes usages, factual phenomenon, state interests, powers, factors, general
opinion etc., until they are recognized by the courts they do not form a part of international
law.

(iii) the combination of usage with “opinio juris siveneccessitates” shall become a customary
law and valid in international law.

Essentials of a Valid Custom

 Reasonableness
 Conformity with Statute Law
 Uniformity
 Long Duration : Immemorial Antiquity.
 Opinio juris et necessitatis : general practice accepted as law.

General Principles recognized by the Civilized States

Article 38 (1) (c) of the statute of International Court of Justice provides this as the third
source of international law.J,E,S, Fawcett gives the meaning that, “by general principles of
law, we mean those rules or standards which we find repeated in much the some form in the
developed systems of law”

Ex – No man can be a judge in his own cause, hear both sides, pactasuntservanda

 Principles of Natural Justice recognized by civilized states.

 Res Judicata, Estoppel

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  General Principles of Law as a subject for International Codification.
 Municipal law in par with international law.
 Justice, Equity and Good Conscience.
 Abolition of Slavery, Apartheid, violation of Human Rights, Environmental
Protection.

Decisions of Judicial or Arbitral Tribunal & Juristic Works

 International Judicial Decisions – Decisions of ICJ are however not binding on

others except the parties. However Article 38 (1) (d) is subject to Article 59 of
Statute of ICJ.
 State Judicial Decisions – Precedents and judgments of State Judicial Decisions as
customary rules of International Law.
 Decisions of International Arbitral Tribunals.
 Juristic Works – not direct source but act as an instrument to develop international
customs.

Decisions or Determinations of the organs of International Institutions

 They are intermediate or final steps in the development of customary rules.

 The resolutions of the organs are binding on the members with regard to internal
matters of the institution.
 Organs of international institutions can decide the limits of their competence.
 The interpretation of their constitution later becomes the part of international law.
 Decisions or Determinations of the organs of International Institutions
 Decisions of quasi-judicial institutions and opinion of international committee of
jurists.

Ex aequo et bono

 This Provision shall not prejudice the powers of the court to decide a case ex
aequo et bono, if the parties are agree thereto.

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 Unit – 3

Relationship between International Law and Municipal Law

International Law and Municipal Law are the same OR various theories regarding
relationship between International Law and Municipal Law.

Sl.No Municipal Law International Law

1. Individual is the subject State is the subject
It is a result of the will of the people It is the result of the common will of all
2.
of that state states.
3. Differs from State to State Is common to all states.

Authors Municipal Law International Law

It is based in the principle called as,
Anzilloti It is obligatory
“Pactasuntservanda”
It is not derived from International
Ross It is derived from Municipal Law
Law
It is partly in reference to International It is also inter-connected with Municipal
Starke
Law Law.
Norms are incomplete and require
Kelson Norms are Complete
completion of norms by national law.

Sl.
International Law Municipal Law in India
No
Vienna Convention on Diplomatic Vienna Convention of Diplomatic Relations
1.
Relations, 1961 Act, 1972 (enacted in 1972)
Convention on the suppression and The a Anti-Apartheid United (Nations
2. punishment of crime of Apartheid, Convention) Act, 1981
1973
Convention on Suppression of The Anti-Hijacking Act, 1982
3.
Unlawful Seizure of Aircraft, 1970

Page 22 of 137
 Convention on the Suppression of The Suppression of Unlawful Act against the
4. Unlawful Acts against the Safety of Safety of Civil Aviation Act, 1982.
Civil Aviation, 1971.

INTRODUCTION: -

Certain theories have been propounded to explain the relationship between

International Law and Municipal Law. In general it is notionally accepted that the state
municipal law control the conduct of individuals within the state while International Law
controls the relations of nations. But now this concept has altogether been changed and the
scope of International Law has increased and it not only determines and controls the relations
of states but also the relations of members of International community. Both the laws have
co-hesion with each other and the relations between these two are more prominent. These
theories have been put forward to explain the relationship between International Law and
State Law. Of all these theories as per following details, the most popular are the Monism
and dualism and they are diametrically opposed to each other:-

1. MONISTIC THEORY:-It is also known in the name of Monism theory. According to the
exponents of this theory International Law and Municipal Law are intimately connected with
each other. International Law and Municipal Law are the two branches of unified knowledge
of law which are applicable to human community in some or the other way. All Law are
made for individuals. The difference is that municipal law is binding on individual while
International Law is binding on states. Conclusively it can be said that the root of all laws is
individual.
According to Strake, “International Law is part of state Municipal Law and therefore
decisions can be given by Municipal courts according to the rules of International Law.”
According to O.Kornell, “The objective of all laws is human welfare whether it is state
municipal law or International Law.”

2. DUALISTIC THEORY: - In view of the dualistic theory writers, International Law and
state Law are two separate laws and contained legal systems. The Monist view of law is part
of philosophy according to which totality is a single structure. But within the framework of
the unitary universe is diversity of phenomenon. International Law cannot become part of
state municipal Law till the principles of International Law are applied under State Municipal
Law.
According to Strake, “The main foundation of the proponents of dualistic theory is that state
Municipal Law and International Law are two different legal systems because the nature of
International law is fundamentally different from State Municipal Law.”
Angilotti has also recognised both the systems as two different legal systems. According to
him the fundamental principle of State Municipal Law in compliance of law enacted by state
legislature while principle of International Law is PactaSunt
Servanda i.e. to honour the agreements executed between the states.”
The main basis of separation of these two systems is as follows:-

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  The main source of International Law is customs and treaties while in case of
Municipal Law are an enactment by sovereign power.
 International Law controls the relations between state while state law controls the
relations between state and individuals.
 The main cause of compliance of state law is fear of sanction while the basis of
compliance of International Law is the moral liability and vested interests of
states.

3. THEORY OF SPECIFIC ADOPTION:

International Law cannot be directly enforced in the field of State Law. In order to
enforce it in the field of Municipal Law it is necessary to make its specific adoption. The
theory of adoption is based on Hague convention-1970, Vienna Convention-
1972 and Tokyo Convention-1975. In case of Jolly George v/s Bank of Cochin-1980: The
court held that any agreement does not become part of Indian constitution automatically, but
the positive commitment of state parties inspires their legislative action.”

According to this theory, Positivists say that International Law cannot be applied unless
and until it is specifically adopted by the Sovereign States by way of enactments.

Example: The Protection of Human Rights Act, 1993 was enhanced based on International
Convention. The Statement of Objects and Reasons of the Act says, “India is a party to
international covenant on civil and political rights and the international covenant on
Economic, social and cultural rights, adopted by the General Assembly of the United Nations
on the 16th Dec, 1996. The human Rights embodied in the aforesaid covenants stand
substantially protected by the constitution”.

The use of International Law in different countries like India, Britain, America and
Russia. The rules of International Law and treads have been based in a different ways e.g.

INDIAN ADOPTION :-

The International Law has been given important place and mention the customary
rules of International Law in Article 51(6) of the Indian constitution with the following strive
:

 To increase international peace and security.

 To maintain just and good relations among states.
 To increase faith and honour for use of International Law treaty, obligations in
natural relations and conduct of organised people.
 To act as mediator to encourage for settlement of international dispute.
 Similarly under Article 372(1) of our constitution, the treaties, agreements, etc.
entered by the British government is valid.

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 Some of the cases in this regard are :

1. Shri Krishna Sharma v/s State of west Bengal-1964 : It was decided that whenever the
court interprets the domestic Municipal Law, it should be taken into consideration that it
does not go against International Law.

2. Magan Bhai, Ishwar Bhai Patel v/s Union of India-1969:- Court accepted the
implementation of Kutch Agreement between India and Pakistan on the basis of
correspondence between them. Similarly there are two other case viz: Vishakha v/s
State of Rajasthan-1997. And Apparel Export Promotion Council v/s A.K.Chopra-
1999: In both of the cases the court held that the right of sex equality of women has
assumed the important rule of International Law and its convention, court said that in
cases of violation of human right the court should always consider international
documents and conventions and should make them binding.

British Adoption:

In Britain International customs are treated as part of domestic law. British courts
apply international customs subject to the conditions (i) International customary rules are not
inconsistent with British Laws (ii) they are accepted by lower courts when the limit of these
customary rules are fixed by High Court. For use of treaties, the case of International
Tin Council v/s Dep’t., of Trade and Industry-1900: the Lord Council decided that in
England treaties are not binding automatically. It is binding only when the Parliament makes
it a part of English Law and incorporates in Law by enactment of law in this regard.
R vs Keyn (1876) 2 Ex D 63

(Franconia Case)

Keyn was the captain of the German ship Franconia who collided with Strathclyde a
British ship which caused death of the passenger of the British Ship within three miles of the
English coast. Keyn was prosecuted for manslaughter. He raised a question whether an
english court had jurisdiction to try the case. The Argument held that English Courts had
Jurisdiction under International Law over a foreigner for criminal acts done within three-mile
maritime belt of the English coast. And over “high seas” only for punishing pirates. This was
rejected by the court. Hence led to the passing of the Territorial Waters Jurisdiction Act, 1878
which gave jurisdiction to courts with three-mile maritime belt.

Adoption in America:

In America the courts interpret the state law in such a way that it does not go against
International Law. The rules of customary International Law are treated as part of State
Law. It has been done in the case of Paqueta Habana Case- 1900: It was held that
International Law is part of our state Law and when any question or case relating
International Law is filed before courts of proper powers then the rights based on these
questions should be determined and enforced.

Page 25 of 137
In United States, there is a provision in Article VI of the American Constitution,

“This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all Treaties made or, which shall be made under the authority of
United States, shall be bound thereby, anything in the Constitution or laws of any State to the
contrary notwithstanding.”

Thus, International Law having its source in a treaty to which the United States is a
party is definitely regarded as a part of the law of the United States.

Limitations to this principle are,

1. The courts give effect to only those provisions which are self-executing, i.e. such as
can be applied by the courts without additional legislation by congress.

Foster vs Neilson

2. When congress subsequently enacts a statute in conflict with a treaty provision, the
courts will give effect to the statute, though there is a violation of international law.

Harmonisation Theory

This theory propounded by “O. Connell”.It compromises both the monistic and dualistic
theory. Which means, International Law and Internal Law both work for the benefit of
mankind. None is superior nor interior to each other. Whenever a conflict arises, the law has
to be harmonized by the judges rather than degrading.

Important points under this theory:

By Judges:

Judges should interpret law according to the circumstances but not according to the
supremacy it inferiority

By States:

When there is a conflict of internal law with international law, then thesovereign state should
amend their local laws so as to coincide with the International Laws.

4. THEORY OF TRANSFORMATION:-

The exponents of this theory contented that for the application of International Law in
the field of Municipal Law, the rules of international law have to undergo
transformation. Without transformation they cannot be applied in the field of Municipal
Law.

According to Strake:-

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 “That the rules of International Law can be applied when they are transformed in to
domestic law, is not necessary in every case.”

5.THEORY OF DELIGATION:-

The theory of transformation has been criticised by the Jurists with the result of this
craterisation it put forward a new theory called Delegation theory. The supporters of this
theory say that according to the statutory rules of International Law, the powers have been
delegated to the constitution of different states o ensure that how and what extent according
to International Law. States to determine as to how International Law will become applicable
in the field of Municipal Law in accordance with the procedure and system prevailing in each
state in accordance with its constitution.

CONCLUSION:-

Last but not the least in a recent case namely, Chairman, Railway Board & others v/s
Mrs. Chandrima Das and others-2000: The supreme Court of India observed that the
International Conventions and Declarations as adopted by the United Nations have to be
respected by all signatory states and meaning given to the words in such declarations and
covenants have to such as would help in effective implementation of those rights.

Page 27 of 137
 Unit – 4

Subjects of International Law

International law is primarily concerned with the rights, duties and interest of the
states. It prescribes the rules of conducts which the states are to observe. A subject of rules is
a being or thing upon which their rules confer certain Personal rights and the capacity and at
the same time imposes duties and responsibilities. The law is the body of the rules which
commands it subjects. Generally International Law deals with the rights and duties of the
states. It's rules for the states to regulate the relationship interse the state. It is the states who
enter into treaties with each other and they are found by the terms and conditions of the
treaties . International law not only applies to the states but also applies of an individual and
certain non-state entities.

1 Theories regarding subject of international law

There are three main theories in respect to the subject of international law.

I) States alone are the subject of international law.( Realist Theory)

II) Individual alone are subject of international law.(Fictional Theory)

III) States , individual and certain non state entities are subjects of international law.
(functional theory)

A. State alone are the subject of international law /Realist Theory

Some Jurist have Expressed the view that only States are the subject of international
law. In their view International Law regulates the conduct of the state and only state alone
are the subject of international law. According to them as per the positivism view, individual
is an object and not a subject of International law. International Law gives more Emphasis
and stress upon the states, their sovereignty ,etc .

Criticism

This view has been criticized by various jurist because this theory fails to explain the case of
slaves and pirates. Under international law slaves have been conferred upon some rights by
the states. In the same way pirates are treated as Enemies of the mankind and they may be
punished for piracy by the state. The jurist who emphasis that States alone are the subjects of
international law, are of the view that slaves and pirates are exception and are objects of
international law. It is argued that the treaties which confer certain rights over the slave and
pirates impose certain obligations upon the states if there is no search obligation of the
states, the slaves cannot have any rights under international law. Professor Oppenheim is of
the view that since the law of nation is primarily a law between the States, state are to that

Page 28 of 137
extent, the only subject of the law of nations. Professor Oppenheim subsequently has changed
the view and mentioned that," States are primarily ,but not exclusively, the subjects of
International law. To the extent that bodies other than States directly possesses some rights,
power and duties in international law they can be regarded as subjects of international law
possessing international personality. Many of the rules of international law are directly
concerned with regulating the position and activities of the individual and many more directly
affect them. Thus it is wrong to say that individuals or not the subjects of international law.
Some Jurist are of the view that individuals who are the basis of the society and are the
subject of international law and not the object of international law. Even the International
Court of Justice has rejected the proposition that states are the only subject of international
law. But held that the states are responsible for an act of his agent. As per the modern
international law, it is generally recognised that besides States public International
organisations, Individual and certain other non state and entities are also the subject of
international law."

B. Individuals alone are subject of international law/ fictional theory

Some Jurist Express the view that in the ultimate analysis of International law , it will
be evident that only individuals are the subjects of international law. Professor Kelson is the
chief exponent of the theory . Even before kelson, Westlake had remarked," the duties and
rights of the States are only the duties and rights of man who composed them. Prof.Kelson
has analysed the concept of the state and Expressed the view that state is a technical legal
concept and includes rules of law applicable on the persons living in a definite territory.
Hence under International Law duties of the states are ultimately the duties of individual. and
there is no difference between International Law and State Law . as per Kelson both laws
apply to the individual and they are for the individual.

Criticism

The view taken by the Kelson is more logical and practical. so far as the practice of the
state is a concerned, it is seen that the primary concern of international law, is with the rights
and duties of the states.

It can be seen, certain treaties have been entered into which have conferred certain
rights upon individuals. As per International Court of Justices, statute, though States can be
parties to the international processing, a member of other international instruments have
recognised ready procedural capacity of the individual. There are number of examples
wherein international law applies on individual not only mediately but also directly. It is
wrong to say that pirate, slave,etc are only object of International Law.

Philips C. Jessup , has taken the view that although individual possesses number of
rights under International Law , in most of the cases claim on his behalf can be brought only
by the state whose National he is. It is an elementary principal of international law that state
is entitled to protect its subjects when injured by the acts contrary to international law
committed by another states.

C. States, individual and certain non-state entities are subject of international law/
functional theory

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 This view not only combines the first and second view but Goes a step ahead to include
international organisations and certain other non state and entities as subjects of international
law. This view appears to be more practical and are better than the first two views.

The reason in support of this view are as under

1) In present times, several treaties have conferred upon individual certain rights and duties,
for example International Covenant on human rights .

2) permanent Court of Justice in Danzing Railways official case, 1928, held that if any
treaties the intention of the parties is to enforce certain rights upon some individuals, then
International Law will recognise such rights and enforce them.

3) Geneva convention on Prisoners of War 1949, has conferred certain rides upon the
Prisoners of law.

4) The Nuremberg and Tokyo tribunals laid down the principle that International Law may
impose obligations directly upon the individuals.

5) The Genocide convention, 1948 ,has imposed certain duties upon the individual and
persons guilty of the crime of genocide maybe punished .

6) A new trend has started in the international field under which some rights has conferred
upon individuals even against the States. for example European convention on human
rights,1950, International convention on human rights 1966, optional protocol, by which an
individual who is the victim of the violation of human rights, May send petition regarding
violation of human rights by his own state to the United Nations Commission on Human
rights.

7) it is now agreed that International organisations are also the subject of international law.
United Nation is an international person under international law and it is held by International
Court of Justice that United Nation is a subject of international law and capable of
possessing rights and duties and it has capacity to maintain its right by bringing International
things.

8) The law making treaties in respect of international criminal law, have imposed certain
obligations upon the individuals , for example narcotic drugs convention, 1961, Hague
conversation of suppression of unlawful Seizure of aircraft 1970.

Thus the states are not only the subjects of international law. There is no doubt that states are
still the main subject of international law and most of the part of international law concerns
with the conducts and relationship of state with each other, but in view of the developing and
changing character of the International Law , International organisations and some non-state
entities individuals are also the subject of international law. It is apparent from the above
discussion that the position of subjects of international law has greatly changed with the
passage of time. Originally, sovereign States were the only actors in the international
community, but in present century new non state entities such as International organisations

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and Institutions and individuals have been given the status and rank of international legal
subjects.

Danzing Railways Official Case (1928)

Poland acquired Dancing Railway company – treaty – amenities to be provided by Poland -

railway company sued before permanent court of justice – company not party to treaty – not a
subject – PCIJ declared as subject to provide amenities.

Nuremberg Trial (1946)

20 Nazi leaders and 6 Organizations – Genocide 2nd World War – Evidence proved
committed with common planning and conspiracy – War Crime – Death sentence for 10 –
Transportation for life for 3 – long imprisonment for 4 – 3 acquitted – among 6, 2
organizations were not guilty. The Tribunal rejected the defenses of ‘nullumcrimensinelege,
nullapoena sine lege’ (There is no crime nor punishment except in accordance with law and
Act of State). An individual acted as a head of the state cannot escape from responsibility
from international law.

The Eichmann Trial (1964)

Eichmann, head of the Jewish office of German Gestapo – administrator in charge of “the
final solution” during 2nd World War – exterminated 42,00,000 to 46,00,000 jews in europe
with his policy under the guidelines of Hitler – after defeat of Germany he fled to Argentina –
secret government agents found in Argentina in 1960 – abducted to Israel without the
knowledge of Argentina Government – punished with death sentence by electric chair –
Israel obtained right to punish – a) universal source to punish crimes in any state within the
family of nations b) national source as a victim

State Responsibility

State Powers – sovereignty – control - municipal law – international law cannot interfere –
individuals of nations – foreigners – aliens – respect for municipal law – duty to protect under
international law – state responsibility to protect aliens – vicarious liability.

Circumstances in which a state responsibility arises:

1. International delinquency

2. Injury to aliens

3. Acts of government organs

4. Containers with foreigners

5. Breach of treaty

6. Expropriation of aliens properties

7. Acts of multi-national companies/Environmental law.

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International Delinquency

International Delinquency is a wrongful act committed by the state on the aliens of another
state directly or indirectly. Remedy is given by way of pecuniary compensation.

Imputation of a State:

When a State fails to prevent a minimum international standard to prevent the

wonderful act then, it is called “Imputation of State” or “Theory of Imputation”

Conditions for Imputation:

1) Wrongful Act must have been done be the department/organ/official of a State against
an alien

2) That wrongful act must have been done against the principles of International Law.

U.S. vs Mexico (You Man’s Case)

Riot in Mexico – Mayor of Mexico ordered army to disperse Americans – The Army
acted against the orders – fired and killed three Americans – Imputed against Mexican
government – responsible for international delinquency – ordered to pay compensation to
America.

Injury to Aliens

Every Alien must be protected by the state under international law, however the alien must
behave within the purview of Municipal Law. The State Responsibility chances based on
these circumstances:

a) State Responsibility for the acts of individuals

b) State Responsibility for the acts of mob-violence

c) Stare Responsibility for the acts of insurgents.

1) For acts of individuals: When the Alien is injured by the resident of the state, then the
resident is punished by the state and also will be provided with compensation paid by the
wrong doer. He can also approach his own country to get justice according to international
law.

US vs Mexico (Janes Claim)

Byrob Everett Janes, an American murdered – El Tigre Sonora,Mexico – Carbajal Mexican

murderer not arrested for 8 years – American Government claimed compensation on behalf
of deceased’s wife and children.

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2) For acts of mob-violence: The acts of the Individuals cannot be anticipated however the
acts of the mob-violence can be anticipated by the state. Hence it is the duty of the State to
provide reasonable and appropriate protection to the citizens as well as aliens. It should take
“Due Diligence”.

3) For acts of Insurgents: Every State suffers with the activities of insurgents (rebels).
Every State tries to prevent them.

Calvo’s Doctrine: Calvo a publicist of Argentina propounded the principle of State

Responsibility in time of civil wars in his famous book named ‘Calvo Doctrine’. In it he
states that, no state is liable to pay compensation to the invited or a suffered alien at the time
of civil war. This doctrine is received by all the countries.

Great Britain vs US(Zafiro Claim)

During a war between USA and Spain in 1898, Zafiro a private ship of British with Chinese
crew was attacked by the American Navy partly and then by Filipino insurgents and the
remaining were looted by the Chinese crew. British Government claimed compensation –
unable to ascertain the proportion of damage – No damage given.

Acts of government departments

The State is responsible directly and is liable if the government organs i.e. department or
officers commit any injury to an alien.

Chorzow Factory Case ( Germany vs Poland)

German Factory – Situated at Chorzow on Upper Silesia – Poland expropriated the Factory –
Poland’s action against the spirit and principles of Geneva Convention 1922 – PCIJ ordered
Poland to pay compensation to Germany.

Contacts with Foreigners

Generally contracts are entered between the States and certain contacts are with foreigners on
commercial fields. The beach of contact can be sued through local laws and upon exhaustion
of it the foreigner can approach his home state to take political action against the state and
also institute legal proceedings in the ICJ through his home state.

For Breach of Treaty

When a State violates the conditions of the treaties, the degree of responsibility differs from
case to case.

I Am Alone Ship Case (1928)

Liquor Treaty between U.S.A. and U.K. in September, 1928 – Certain Americans purchased
British Ship “I AM ALONE” – used for smuggling - American officers fired and sunk the
ship in high seas – Canada sued America for the wrongful Act – America liable.

Expropriation of foreign property

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Multi-National companies do business in various states – Highest margin – Government and
policies may change – undertaking by government attracts compensation – latest trend
changes from nationalization to privatization.

Chorzow Factory Case.

German Factory – Situated at Chorzow on Upper Silesia – Poland expropriated the Factory –
Poland’s action against the spirit and principles of Geneva Convention 1922 – PCIJ ordered
Poland to pay compensation to Germany.

For the acts of multi-national companies

The state is held responsible for the acts of the multi-national companies. Multi-national
companies expand their business throughout the globe and their greediness, business tactics
may cause damage to the public of the host country.

Bhopal Gas Leak Disaster (1985)

Union Carbide Corporation a multi-national company manufactures of chemicals – Madhya

Pradesh plant leaked poisonous gas caused death and injuries to more than 6 lakh people –
Suppertime e Court imposed strict and absolute liability on the company and awarded 470
million dollars in full settlement.

Unit – 5

State Recognition,State Succession & Liability

What do you understand by recognition?
What are the various kinds of it?
Differentiate between de facto and de jure recognition.
Explain those situations when de facto become de jure recognition.
What are the disabilities of an unrecognised state?

INTRODUCTION: -

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 It can be said that through recognition, the recognising state acknowledges that the
recognised state possesses the essential conditions of Statehood, a Government and
Sovereignty, a definite territory and has a complete control over his territory. The
community is independent. So recognition has an important place in International Law. By
recognition only the state is accepted as a member of International community.

DEFINITION:-

Many of the Jurists has define ‘Recognition’ in different ways. Some of them have opined as
under:

Prof.L.Oppenheim :-

“In recognising a State as member of International community, the existing states

declare that in their opinion the new state fulfils the conditions of statehood as required by
International Law.”

Fenwick: -

“That through recognition the members of the International community formally

acknowledge that the new state has acquired international personality.”

In the words of Phillip C Jessup: -

By recognition is such a function of a state by which she accepts that any political unit
contains the essential elements of nationality.”

According to Prof.Schwarzenberger:-

“ Recognition can be absorbed easily by a procedure developing International aw by

which the state have accepted the negative sovereignty of each other and willing to develop
their legal relations on the basis of their natural relations.”
According to Kelson:

“A community to be recognised as an International person must fulfil the following

conditions:-
o The community must be politically organised.
o It should have control over a definite territory.
o This definite control should tend towards performance.
o The community thus constituted must be independent.

Thus the conditions of statehood are, People, a territory, a government and sovereignty.”

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TYPES OF RECOGNITION

Recognition is of two types, De facto and de jure recognition. The practice of States
shows that in first stage the State generally give de facto recognition. Later on when they are
satisfied that the recognised state is capable of fulfilling International obligations, they confer
de jure recognition on it, that is why sometimes it is said that de facto recognition of state is a
step towards de jure recognition. The detail of de facto and de jure recognition is as under:-

DE FACTO RECOGNITION: - According to Prof.G.Schwarzenberger:-

“When a state wants to delay the de jure recognition of any state, it may, in first stage
grant de facto recognition.”

The reason for granting de facto recognition is that it is doubted that the state recognized
may be stable or it may be able and willing to fulfil its obligations under International
Law. Besides this it is also possible that the State recognised may refuse to solve its main
problems.

De facto recognition means that the state recognized possesses the essentials elements
of statehood and is fit to be a subject of International Law.

According to Prof.L.Oppenheim :-

“The de facto recognition of a State or government takes place when the said State is
free state and enjoys control over a certain fixed land but she is not enjoying the stability at a
deserved level and lacking the competence to bear the responsibility of International Law.”

For example :-
De jure recognition had not been given to Russia by America and other countries for
a long time because Russia was not having competence and willingness to bear responsibility
of International Law. The same position was with China.

In view of the Judge Phillips C Jessup,

“De facto recognition is a term which has been used without precision when properly
used to mean the recognition of the de facto character of a government; it is objectionable and
indeed could be identical with the practice suggested of extended recognition without
resuming diplomatic relations.”
The de facto recognition is conditional and provisional. If the state to which De Facto
recognition is being given is not able to fulfil all conditions of recognition then that
recognition is withdrawn.

DE JURE RECOGNITION

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 De jure recognition is granted when in the opinion of recognizing State, the
recognized State or its Government possesses all the essential requirements of statehood and
it is capable of being a member of the International Community.
According to Prof.H.A.Smith :- “ The British practiced shows that three conditions
precedent are required for the grant of de jure recognition of a new State or a new
Government. The three conditions are as under:-

 A reasonable assurance of stability and performance.

 The government should command the general support of the population.
 It should be able and willing to fulfil its international obligations.

Further Recognition de jure results from an expressed declaration or from a positive act
indicating clearly the intention to grant this recognition such as the establishment of
diplomatic relations.

According to Phillips Marshall Brown: -

“De jure recognition is final and once given cannot be withdrawn, said intention
should be declared expressly and the willingness is expressed to establish political relations.”

DISTINCTION BETWEEN DE FACTO AND DE JURE RECOGNITION

As observed by Prof.G.Schwarznbeer,

“De jure recognition is by nature provisional and may be made dependent on

conditions with which the new entity has to comply. It differs from de jure recognition in that
there is not yet a formal exchange of diplomatic representatives. De jure recognition is
complete implying full and normal diplomatic relations.”

De facto recognition De jure recognition

De facto recognition is De jure recognition is final.

conditional and Provisional.
If the conditions are not fulfilled De jure recognition cannot be
by the concerned state then it is withdrawn once given it is final.
withdrawn.
To maintain political relation in The willingness is to be expressed
this recognition is not necessary. for maintenance of political
De facto recognition is the first relations.
step towards de jure recognition.
De jure recognition is the final
step towards recognition.

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In Luther v/s Sagor-1921:-

“It was held that there is no distinction between de facto and de jure recognition for
the purpose of giving effect to the internal acts of the recognized authority.”

Bank of Ethopia v/s National Bank of Egypt and Liquori- 1937:-

The court held that in view of the fact that the British government granted recognition
to the Italian Government as being the de facto government of the area of Abyssinia which
was under Italian control, effect must be given to an Italian decree in Abyssinia dissolving the
plaintiff bank appointing liquidator.”
But in the case of Luther v/s Sagore-1921 the court held that as far as internal affairs of a
state is concerned De facto recognition is interim and it can be withdrawn.”

CONSEQUENCES OF RECOGNITION

There are many political and legal advantages of getting recognition and many
disadvantages of not getting recognition. They may be said as disabilities of a state of not
getting recognition. The following are the advantages of getting recognition and
disadvantages of not getting recognition.

ADVANTAGES DISADVANTAGES

1. Can establish diplomatic and The states who did not get such recognition
commercial relation with the states cannot establish such relations.
granting recognition. The state which does not get recognition
2. Recognised states can institute a suit in cannot do so.
the courts of states granting recognition.
3. Can institute suit relating to property Unrecognised states cannot institute suit
situated in the courts of state granting relating to property.
recognition.
4. The representatives of recognised states The representatives of unrecognised states
are entitled to enjoy diplomatic and cannot enjoy such relations.
political communities in the territories of
state granting such recognition.
5. The recognised states can execute treaty
agreement with states granting such The unrecognised states cannot sign any
recognition. treaty agreement with any states.

CONCLUSION

Recognition of any state means, that state become a member of International

community and acquires International entity. The state becomes entitled to all rights and

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special rights as a member of the International community. In the absence of recognition any
state cannot establish her diplomatic and political relations with any states and also unable to
sign any treaty agreement with any state.

Meaning

State Succession: A succession of international person occurs who one or more

international persons take place of another international person, in consequence of certain
changes in the latter’s condition.

Definition

Edward Collins defines State Succession: “A succession of government occurs when

the government of the State is replaced with a new one. State succession occurs when a state
ceases to exist or a new State is formed within the territory of an existing State or territory is
transferred from one State to another State. When a succession situation arises, the point of
chief legal interest is the effect, if any, on the international rights and obligations of the State
or States concerned”.

Scope & Object

The Law of Succession is seen in every jurisprudence. It is inherent interest in every

human being. The law of State Succession is a new subject and in a developing stage
incorporated from the Roman Law rooted from Grotius theory.The main object of it is the
principle of ‘Continuity of States’. The state remains unchanged and it’s rights and liabilities
are unchanged and helps in international cooperation in various relations and serves
international peace and security.

Kinds of State Succession

There are two kinds:

 Universal Succession and Partial Succession

Universal Succession

If the legal identity of a community is completely destroyed there is said to be a Total

Succession or Universal Succession.

Circumstances in which Universal Succession arises:

(a) Subjugation: When a State conquers another State by force, the acquired State is
absorbed by the Conquered State.

Example: China Subjugated Tibet. Tibet is now a part of China.

b) Voluntary merger: when a State merges with another State, it losses it’s legal identity.

Example:

1) Sikkim merged in India in 1975 voluntarily. It lost its independent sovereignty.

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 2) The two Germany i.e., East Germany and West Germany merged as one State on
3/10/1990. Now it has single identity “Germany”.

 Universal Succession

c) Break – up: A state may break-up for several reasons and lead to birth of several States.

Examples:

1) Soviet Russia a powerful State broke up in 1991 into 15 States.

2) Yogoslavia a state in 1991 broke into small States, Bosnia-Herzegovina, Slovenia etc.

3) Czechoslovakia broke up into Slovakia and Czech Republic.

4) In 1947, India was partitioned into India and Pakistan.

5) Indonesia gave birth to East Timore.

Partial Succession

When a territory is lost while personality and legal responsibility remains unchanged,
it is called partial succession.

Circumstances in which partial succession arises:

1) Achieving Independence: A part may achieve independence from parent state by

revolution or agreement

Ex. Before 1971 Pakistan was a union of East Pakistan and West Pakistan. In 1971
Bangladesh was separated from Pakistan.

2) Cession: Surrendering territory. Example: Berubari

3) Purchase: Ex. America purchased Alaska from Soviet Russia.

4) Federation: Ex. Senegal and Gambia in Africa. Gambia entering a treaty with
Senegal forming a confederation of two countries named as Senegambia.

5) Referendum: Referendum conducted by UNO whether people of East Timore to

have independence or to be in Indonesia. And accordingly, East Timore emerged into
a country in November 1999 based on votes.

Doctrine of Continuity of States

The States remain the same whereas the politics, government, policy etc. may change. This
Doctrine protects the contact, treaties made by the predecessor governments which helps in
strengthening the relationships between the States.

Great Britain vs Costa Rica

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(The Tinoco Arbitration)

Federico Tinoco came to power of Costa Rica from Jan 1917 overthrowing President
Alfredo Gonzalez and continued till August 1919 – Succeeded by Barquero – The new
government passed an Act known as “Law of Nullities No.41” – all contacts invalidated
during Tinoco government – Britain suffered loss when Costa Rica currency became invalid
– British Government claimed compensation but failed.

Theories of State Succession

Prof. D.P.O. Connell declared four theories of State Succession:

 Continuity Theory
 Negative Theory
 Importing International Law Theory
 Communist Theory

Continuity Theory

According to this theory, the successor continues the rights and obligations of the
predecessor. Succession is substitution and continuation. All benefits and burdens pass to the
successor. It is further subdivided into 4 theories:

1) The theory of universal succession

2) The theory of popular continuity

3) The theory of organic substitution

4) The theory of self-abnegation

Theory of Universal Succession

According to this theory, succession takes place by virtue of a legal principle

antecedent to the enacted law of any society, and therefore, antecedent to the positive law of
nations. Succession takes place not in virtue of an external legal prescription, but in virtue of
a legal quality which reposes in the objects of succession.In simple words, the properties and
liabilities of the deceased person is succeeded by his successor. Similarly, the new state is
given the place of a heir of his predecessor’s personality. This theory is propounded by
Grotius, Pufendrof, Vattel.

Criticism:

The notion and object of private succession differ from international succession. It is
inaccurate and the state cannot discharge all contacts and treaties. The former is real and
latter is fictitious.

Theory of Popular Continuity

Max Huber propounded this theory. This theory speaks about the change in the
fictitious element in the political organization, the real element surviving intact. The change

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in Sovereign State does not affect on the real elements but on fictitious elements in the
notional organizations. The treaties and obligations continue in the new state. It is legal
continuation.

Theory of Organic Substitution

The Successor State takes over all rights and duties which are essentially political.
There is a change in Judicial element of the organization, which does not occur in the case of
change of government.

Theory of Self Abnegation

The new State may accept or reject the rights and obligations.

Abnegation = to give; to renounce

Negative Theory

The Sovereignty of the Predecessor State over the absorbed territory is abandoned.
The Successor State does not exercise its jurisdiction over the territory in virtue of a transfer
of power from its predecessor, but solely because it has acquired the possibility of expanding
its own sovereignty in the manner dictated by its own will.

Criticism: this theory creates more problems instead of solving it.

Importing International Law Theory

It is a compromising theory between the Continuity theory and negative theory.

According to this theory, the State had to follow the new international principles, norms and
obligations.

Criticism: In circumstances even this principles could not solve problems.

Communist Theory

According to this theory, the succeeding State is unencumbered by the economic and
political commitments of the predecessor state.

Criticism: Practically the communist theory proved failed.

Effect of State Succession on Contacts

As per the principle, the succeeding State should oblige the contracts made by the
Predecessor State. While in practice, the above principle is not adopted in international law. It
depends on the circumstances of the succeeding state.

West Rand Central Gold Mining Company Limited Case.

West Rand Central Gold Mining Company Limited - Registered company in England
– operates in gold mines Transvaal in South Africa – 2 packets of Gold seized by south
African authorities – bound to return or repay – War in between – South Africa annexed to
England – company claimed Gold – Failed.

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State Succession on Concessionary Contacts

It means a contact in which a person or a company obtains lease or grant from

government pertaining to land, mine, property etc. The effect of State Succession on
concessionary contact depends from circumstance to circumstance.

Premchibarvs Union of India

Premchibar resident of Goa – under Portuguese reign – obtained license importing

goods with 10 lakh pounds – Advanced some amount for contact – before execution of
contact Goa merged into Indian Territory – India canceled the license of the petitioner –
Supreme Court upheld the act of Indian Government as Act of State.

State Succession in respect of Treaties

Vienna Convention imposes two rules in respect of succession of States under its
treaty in 1978.

Clean State Rule: It is similar to negative theory. The succeeding State is at a liberty to
comply the treaty or to reject it.

Moving Treaty Frontiers Rule: It is based on association of a territory with already

established State & on the basis of the prior legal nexus a newly independent State is entitled
to claim it’s succession to multilateral treaties.

Vienna Convention on Succession of States in respect of Treaties 1978

Article 8:

provides that the obligations or rights of a predecessor State under treaties in force in
respect of a territory at the date of a succession of States do not become the obligations or
rights of the successor State towards other States parties to those treaties by reason only of
the fact that the predecessor State and the successor State have concluded all agreements
providing that such obligations or rights shall devolve upon the successor State.

Article 9:

provides that the obligations or rights under treaties in force in respect of a territory at
the date of a succession of States do not become the obligations or rights of the successor
State or of other States parties to those treaties by reason only of the fact that the successor
State has made a unilateral declaration providing for the continuance in force of the treaties in
respect of its territory.

Article 16:

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 provides that a newly independent State is not bound to maintain in force or to
become a party to, any treaty by reason only of the fact that at the date of the succession of
the States the treaty was in force in respect of the territory to which the succession of the
States relates.

Article 24:

provides that a bilateral treaty which at the date is succession of States was in force in
respect of the territory to which the succession of State relates is considered as being in force
between a newly independent State and the other State party when: (a) they expressly so
agree; or (b) by reason of their conduct they are to be considered as having so agreed.

Effect of State Succession on Public Debts

Generally when a State absorbs another State, the public property of that extinct State
is absorbed by the Succeeded State but Liabilities of illegal acts of that State is not absorbed.

Article 36 of the Vienna Convention on State Property, Archive and Debts, 1983 provides
that the succession of a State does not affect the rights and obligations of the creditors. When
an independent State is formed, no debt shall pass to the independent State unless an express
agreement. In case of separation of a part of the territory the State debt of the Predecessor
State should pass to the Successor State – “Equitable proportion taking into account the
property, rights and interest passing to the successor States”.

Unit – 6

Territorial & Extra-Territorial Sovereignty

Meaning

Each State has its own territorial jurisdiction over its people in making civil, criminal laws for
its people. This is called “Territorial Jurisdiction of a State” or “Protective Jurisdiction”.

Definition

D. J. Harris Defines State Jurisdiction as follows:

State Jurisdiction is the power of a State under International Law to govern persons
and property by its municipal law. It includes

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  Power to prescribe rules (prescriptive jurisdiction)
 Power to enforce rules (enforcement jurisdiction).

Jurisdiction may be concurrent or exclusive, civil or criminal.

Basis and Exercise of Jurisdiction

 The land situated within the boundaries of a State recognized by international law,
over which the State has power.
 The maritime coastal belt or territorial sea
 A ship bearing the flag of the State
 Ports.

Exercise of Jurisdiction

 To exercise the Jurisdiction, the State must have the basis of Jurisdiction. It can be
seen in Sections 3 & 4 of IPC, 1860.
 Section 3:- any person liable, by Indian law, to be tried for an offence committed
beyond India shall be dealt with according to the provisions of this code for any
act committed beyond India in the same manner as if such act has been committed
within India.
 Section 4:- the provisions of this Code apply also to any offence committed by

1. Any citizen of India in any place without and beyond India

2. And person or any ship or aircraft registered in India wherever it may be.

Illustration

a) American and Pakistani murdering Indian – can be tried in India when they are in
India – if escaped to America cannot try Pakistani - reason foreigner – offence in a
foreign state.
b) American and Pakistani murdering Indian – can be tried in India when they are in
India – if escaped to America cannot try Pakistani - reason foreigner – offence in a
foreign state.

Theory of Sovereignty

Lord Macmillan explains, “It is an essential attribute of sovereignty of this realm, add
of sovereign independent States, that it should possess jurisdiction over all persons and things
within its territorial limits and in all causes, civil and criminal arising within its limits”.

Technical Extension of the Territorial Jurisdiction

Besides the assignment of territory to territorial sea, ships, ports, there are other
instances in which the principle of territory is extended. The State has to take action against
the wrongful act beyond its territorial jurisdiction, where the territorial jurisdiction does not
apply. This is called the Doctrine of Technical Extension of Territorial Jurisdiction.

The Doctrine of Territorial Jurisdiction is explained in two principles.

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 a) The subjective territorial principle and
b) The objective territorial principle.

Subjective Territorial Principle

The crimes may be stated in one State and committed in another State or preparation
may be done in one State and the act may have been done within its territorial jurisdiction.
Hence the other State gives subjective territorial jurisdiction to this State. Ex – The Geneva
Convention for the Suppression of Counterfeiting of Currency (1929).

Objective Territorial Principle

Certain States supplies their territorial jurisdiction to the offences or acts commended
in another State. But

a) Consummated or completed within their territory

b) Producing gravely harmful consequences to the social or economic order inside their
territory.

Prof. Hyde defines: “The objective territorial principle is the setting in motion of a State of a
force which produces as a direct consequence of an injurious effect therein and justifies the
territorial sovereign in prosecuting the actor when he enters his domain”.

S. S. Lotus Case (1927)

French ship s.s lotus – collided with Turkish Collier the Boz-Kourt – in the coast of
turkey while proceeding to Constatinople – Turkish vessel sunk – 8 turkish nationals
drowned - Turkish Government initiated criminal proceedings – both the officers of the ship
was arrested and convicted – French Government challenged the trial and convictions
contending turkey had no jurisdiction – PCIJ held conviction valid.

Right of Passage

The land locked states have “right of passage” from the neighboring coastal States.
For example Nepal, Bhutan are land-locked states. They get the foreign goods via Calcutta
port and other Indian territories. The International Law gives the right of passage to such
land-locked States.

Portugal vs India

During British reign, Goa, Daman and Diu were ruled by Portugal since 1843 –
When India got Independence Goa, Daman and Diu were not freed – Goa was surrounded by
State of Bombay – Diu and Daman were scattered each order were surrounded by State of
Gujarat – Portugal enjoyed right of passage during British reign – Indian Government
prevented right of passage – this resulted in overthrow of Portuguese authority – This created
tension – Portuguese claimed right of passage to an extent of exercise of sovereignty –
Portugal referred to ICJ – India argued the tension created due to right of passage of armed

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forces, armed police, arms and ammunition – ICJ have judgment by voting of 11 major to
India and 4 to Portuguese – Right to passage of private persons.

Suez Canal Issue

Suez canal constructed in Egypt – under French control – became British control –
mutual agreement in 1954 – British to Egypt – in 1956 Egypt nationalized Suez canal –
affects Israel, Britain, France etc. – Invaded Egypt – Russia intervened and acted as mediator
– as a result Egypt agreed that Suez canal would remain free from international politics and
all States have right of shipping.

Modes of Acquiring Territory

1. Occupation

2. Prescription

3. Accretion

4. Cession

5. Annexation or conquest

6. Lease

7. Pledge

8. Plebiscite

9. Purchase

10. Newly born States

11. Agreements.

Occupation

Oppenheim defines, “Occupation is the act of appropriation by a State by which it

intentionally acquires sovereignty over such territory as it at the time not under the
sovereignty of another State”.

Conditions for Occupation:

1. Occupation should be actual. It should not be nominal.

2. Effective Occupation is recognized only upon the actual exercise of sovereignty.

3. Sometimes, occupation may also be preceded by discovery. Discovery of new land

gives a good title. Ex. Australia, America, Canada etc.

4. There must be strong intension and desire to have the occupation of that land.

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 5. It must be open and public and involve the continuous, peaceful display of State
authority extending over a long period.

6. A mere forceful occupation does not give a rightful title to the occupier. Ex. Iraq
occupation over Kuwait.

Island of Palmas Arbitration

Palmas Island was a small island located near Philippines – Philippines under Spain
Sovereign – Spanish-American war 1898, Spain lost Philippines to America – in 1906
American officials visited Palmas island – found Dutch flag – dispute arose between
Netherland and USA – Referred to permanent court of Arbitration under sole Arbitrator Sir
Huber – Netherland showed evidence of occupation over Palmas since 1700 – Doctrine of
nemo dot quod non habet(the person who has no title cannot pass a better title to the
transferee)

Andaman Islands Issue

Andaman and Nicobar islands located near to Indonesia – Far from India - State of
Indonesia contented that it should belong it as location is very near – Indian Occupation since
British Government – Principle – continuous and peaceful display of territorial sovereignty.

Prescription

It means long or immemorial possession.

Ingredients:

1. Prescription gives good title to the territory.

2. The State which claims prescription must prove that it’s enjoyment over the territory
that it is public, peaceful and uninterrupted.

3. Prescription stays when no original source of propriety right.

4. The validity of the title grows as the length of the time increases.

5. Interruption in prescription is not possible until an International Tribunal is

established for such purpose.

Chamizal Arbitration (US vs Mexico)

Treaty between USA and Mexico in 1848 regarding boundaries upon river Rio
Grande – in 1911 the river Rio Grande changed its course leaving a tract of land about 600
acres – The Charmizal Tract – on the river of United States side of new bed – USA claimed
on the plea of prescription, Mexico claimed on basis of treaty International Boundary
Commission – Favored Mexico – absence of peaceful and uninterrupted enjoyment – basis
treaty.

Accretion

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 It means increase by natural growth or gradual addition. It is a natural phenomenon, a
geographical process. Due to floods, eruption of volcanos, create certain new islands and add
territory of the State is called Accretion. Ex. Chamizal Tract in 1911 between America and
Mexico.

Edward Collins defines Accretion: “A State acquires territory by accretion when new
land is formed within its existing territorial limits; the Sea recedes, a river drives up an
island appears within the territorial sea. These acquisitions seldom result in either significant
additions of territory or in controversy”.

Cession

A sovereign State surrenders some portion of its territory to another sovereign State.
The cession of a territory may be voluntary or it may be under compulsion as a result of war
or by amicable settlement between countries to avoid conflicts

Ex. Berubari in West Bengal.

Annexation

A State conquers in the War and annexes it in its territory. Annexation may be of
force or by democratic means.

Ex:

1. China conquered Tibet and annexed in 1959.

2. Iraq invaded Kuwait and annexed in 1990.

3. Sikkim annexed into India by democratic means in 1975.

Lease

A Sovereign State may Lease is territory to another sovereign State on certain

conditions and on certain amount of lease.

Ex.

1. Tin Bighasituate in west Bengal has been leased to Bangladesh under an agreement
in 1974.

2. In 1898 China leased island of Hongkong to Great Britain for 99 years and Britain
handed over Hongkong to China in 1997.

Pledge

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 A nation may solve financial crises by pledging it’s gold to other countries and
obtains money. The pledging of territories of a country occurs in rarest of rare circumstances
only.

Ex. In 1768, the Republic of Geneo pledged the Island of Corsica to France.

Plebiscite

It means the consent of the people. An expression of will by direct vote of a whole
people or community on a public issue, especially one concerning a chance of government or
constitution.

Ex.

1. Soviet Russia was split into 15 separate countries by means of plebiscite.

2. East and west Germany were united by plebiscite.

Purchase

A sovereign country may sell some of its territories in a rare occasion.

Ex.

1. Soviet Russia sold Alaska to USA in 1868.

2. Britain purchased Louisiana from France.

3. America purchased Lusiana from Napolean in 1803.

Newly Born States

Certain territories of a Sovereign country declare independence and get territories of

their own.

Ex.

1. Bangladesh in 1971.

2. 15 countries of Russia split and established their own sovereignties and territories.

Agreements

Certain States give independence to their States to their colonies under agreement.
Such colonies, they become independent and acquire their own territories. Ex. India.

Modes of Loss of Territory

All the modes of acquiring territories may be read in reverse for the purpose of modes of
Loss of a Territory.

1. Cession: Pakistan acquired Berubari and India lost it.

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 2. Subjugation: China acquired Tibet.

3. Operation of Nature

4. Prescription

5. Occupation

6. Dereliction: Abandoned.

7. Revolt: India, America in 1776 from Great Britain & Netherlands from Spain.

8. Lease

9. Pledge

10. Plebiscite

11. Purchase.

Air Space and Hijacking

Until 20th Century, the State is of the opinion that, it would enjoy exclusive
Sovereignty over the air space above its territory to any height undeterminable. The
development in Science and technology has broken this conception. Hence the Airspace is
divided into two spaces. (i) Air Space and (ii) Outer Space. The confusion in airspace has
been regulated in 1919 at Paris convention on Regulation of Aerial Navigation.

The Chicago Convention, 1944:

53countries participated in it and recognized the exclusive sovereignty of all States

over their Airspace. It differentiated Aircraft into two divisions.

(i) Civil Aircraft

(ii) State Aircraft.

Article 6 of the Chicago Convention, 1944 gave privilege to civil aircraft to fly
without the permission of the host State and State aircraft to fly with prior permission.

The Chicago conference failed to reach agreement on granting of reciprocal rights of

overflight or of transportation of passengers and cargo led. The two supplementary
agreements were concluded.

1. Chicago International Air Services Transit Agreement, 1944

2. Chicago International Air Transport Agreement, 1944.

Chicago International Air Services Transit Agreement, 1944

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 This Agreement is also called as “Two Freedoms Agreement”. This Agreement only
refers to transit rights. Each contacting State must grant to all other contacting States:

1. The Privilege of flying across its territory without landing and;

2. The Privilege of landing for non-traffic purposes.

Chicago International Air Transport Agreement, 1944.

This Agreement is also called as Five Freedoms Agreement. This incorporates the
above two freedoms and as well as three freedoms additionally which are traffic rights.

1. The Privilege of flying across its territory without landing and;

2. The Privilege of landing for non-traffic purposes.

3. The Privilege of putting down passengers, mail and cargo taken on in the territory of
the State whose nationality the aircraft possesses.

4. The Privilege of taking on passengers, mail and cargo destined for the territory of the
State whose nationality the aircraft possesses.

5. The Privilege of taking on passengers, mail and cargo destined for the territory of any
other contacting State and the privilege to put down passengers, mail and cargo
coming from any such territory.

Hijacking

Criminal Jurisdiction extends over terrorism and hijacking. However, the criminal
jurisdiction is not sufficient to meet the challenges of terrorism and hijacking in the present
day context. To some the problems of hijacking, 138 member –States have conducted
“Tokyo Convention on Offences and Certain other acts committed on board Aircraft
1963” and concluded certain resolutions in 17 Articles.

Thereafter, “Hague Convention For The Suppression Of Unlawful Seizure Of

Aircraft 1970” was concluded by 143 members under 9 Articles. The member States have
concluded another convention “The Bonn Declaration on International Terrorism in
1978”.The Conventions did not use the word “Hijacking” but used the term offence under
Article 1 of Hague Convention, 1970.

Article 1 – Any person who on board an aircraft in flight:

(a) unlawfully, by force it threat thereof, or by any other form of intimidation, seizes, or
exercises control of, that aircraft, or attempts to perform any such act, or

(b) Is an accomplice of a person who performs or attempts to perform any such act commits
an offence.

Key Points:

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 A. The State whose aircraft was hijacked shall have jurisdiction to try the offenders.
However, the conventions do not impose any liability or obligation on the other State,
in which territory the hijackers take the plane, to extradite. This is one of the most
important lacunas in the Conventions.

B. Punishment is not prescribed in the Conventions. The Punishment depends upon the
member-State which tries the offenders.

C. The Bonn Declaration on International Terrorism, 1978 states that in cases where a
country refuses the extradition or prosecution of these who have hijacked an aircraft
and does not return such aircraft, action would be taken to cease all flights to and
from that country and it’s airlines.

The Dawson’s Field Hijacking

The Palestinian Arab Guerrillas – hijacked 3 civil airliners – forced landing in

Dawson’s Field Airship in Jordan in Sep 1970 – demanded release of their Arab guerrillas
and their leader, Leila Khaled – 400 passengers and crew were threatened – Great Britain
released them according to their demands – Hijackers dispersed into various Arab countries.

Indian Airplane Hijacking (1999)

5 Pakistanis hijacked Indian Airplane having 200 passengers and crew from katmandu
– took place to kandahar – Tallibans supported the hijackers – 3 militants were released
including Masood of Kashmiri terrorists – left airplane and escaped to Pakistan – India
criticized Pakistan for supporting hijackers.

Outer Space

Space Exploration started in 4/10/1957, when Russia launched “SPUTINIK–I” into

orbit. Americans followed it by their “EXPLORER-I” on 31/10/1958. Man reached Moon in
1969. India also contributed successfully by launching its first home made multipurpose
satellite “INSAT-2A” on 10/07/1992 and “INSAT-2B” on 23/07/1993.Development in
Science and Technology needed policy for space age. The following resolutions were passed
by the General Assembly.

1. Resolution No. 1348: It was passed in 13/12/1958 and also established an adhoc
committee for regularizing the outer space activities with an intension of “the common
interest of mankind in outer space” and “for the purpose of peaceful purposes only”

2. Resolution No. 1471: It was passed in 12/12/1959 enabling “International

Cooperation in the peaceful Uses of Outer Space”.

3. Resolution No. 1721: passed in 20/12/1961

4. Resolution No. 1902: passed in 14/12/1961

5. Resolution No. 1962: passed in 13/12/1963.

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This Treaty contains the principles governing the activities of States in the exploration and
use of outerspace including the Moon and other celestial bodies.

Key Points of this Treaty:

1) Nuclear Weapons shall not be introduced in the Outer Space by any country.

2) Military Weapons shall not be carried or stocked in the Outer Space by any country.

3) Astronauts are envoys of mankind.

4) If any astronaut of one country is happened to land in the territory of another country
by accident; that country shall take all precautionary and safety measures, and arrange
to send the astronaut to his native State safely and promptly.

5) States shall be responsible internationally for their national activities in outer-space.

6) Is a State differs damage on the act of another State, the State which is responsible is
liable to pay damages.

7) No State can claim Sovereignty in the outer space including Moon and other celestial
bodies by means of Use or Occupation or by other means.

8) All States have equal rights in Outer Space.

Law of Sea

Maritime Belt or Territorial Waters

Sovereignty in the territorial Sea:

Articles 1 & 2 of the Geneva Convention on the Territorial Sea defines, “The
Sovereignty of a State extends, beyond its land territory and it’s internal waters, to a belt of
sea adjacent to it’s coast, described as the territorial sea. The Sovereignty of the coastal State
extends to the airspace over the Territorial sea as well as to it’s bed and subsoil”

Width of the territorial Sea:

Article 3 of the Convention of the Law of Sea 1982 provides that every State has the
right to establish the breadth of its territorial sea to a limit not exceeding 12 nautical miles,
measured from the baselines determined in accordance with this convention.

CANON-SHOT RULE:

There were several rules prevailed over the width of the territorial sea, one of it is “
Canon-Shot Rule “. According to this rule, the width of the sea limit is the extent of a
cannon-shot would reach i.e. 3 miles. Some States claimed it over 3 miles to 200 miles.

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Innocent Passage

Article 14 of the Geneva Convention on the Territorial Sea and the Contiguous Zone
1958 provides that subject to the provisions of the other Articles of this Convention, ships of
all States, whether coastal or not, shall enjoy the right of innocent passage through the
territorial sea.

Passage:

Navigation through the territorial sea for the purpose either of traversing that sea
without entering internal waters, or of proceeding to internal waters, or of making for the
high seas from internal waters.

Passage includes stopping and anchoring, but in so far as the same are incidental to
ordinary navigation or are rendered necessary by force majeure or by distress.

Innocent Passage

Article 15 providers that the coastal State must not hamper innocent passage through
the territorial Sea. The coastal State is required to give appropriate publicity to any dangers to
navigation, of which it has knowledge, within its territorial sea.

Article 16 provides that the coastal States may take the necessary steps in its
territorial sea to prevent passage which is not innocent.

Article 17 provides that foreign ship exercising the right of innocent passage shall
comply with the laws and regulations enacted by the coastal states in conformity with these
articles and other rules of international law and in particular, with such laws and regulations
relating to transport and navigation.

Criminal Jurisdiction

Article 19 of Geneva Convention on the Territorial Sea and the Contiguous Zone,
1958 provides that the criminal jurisdiction of the coastal State should not be exercised on
board a foreign ship passing through the territorial sea to arrest any person or to conduct any
investigation in connection with crime committed on board the ship during it’s passage.

It can be exercised only in the following cases.

 if the consequences of the crime extend to the coastal.

 if the crime is of a kind to disturb the peace of the country or the good other if the
territorial sea or
 if the assistance of the local authorities has been requested by the captain of the
ship or by the consul of the country whose flag the ship flies.
 if it is necessary for the suppression of the illicit traffic in narcotic drugs.

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 The above provisions do not affect the right of the coastal state to take any steps
authorized by its laws for the purpose of an arrest or investigation on board a foreign ship
passing through the territorial sea after leaving internal waters.

S. S. Lotus Case (1927)

French ship s.s lotus – collided with Turkish Collier the Boz-Kourt – in the coast of
turkey while proceeding to Constatinople – Turkish vessel sunk – 8 turkish nationals
drowned - Turkish Government initiated criminal proceedings – both the officers of the ship
was arrested and convicted – French Government challenged the trial and convictions
contending turkey had no jurisdiction – PCIJ held conviction valid.

Contiguous Zone

International Law accords States the right to exercise preventive or protective control
for certain proposes over a belt of the high seas contiguous to their territorial sea. This power
of control does not change the legal status of the waters over which it is exercised. These
waters are and remain the part of the high seas and are not subject to the sovereignty of the
coastal State, which can exercise over them only such rights as are conferred on it by the
present draft or are derived from international treaties.Many States have adopted the principle
that in the contiguous zone the coastal state may exercise customs control in order to prevent
attempted infringements of its customs and fiscal regulations within its territory or territorial
sea, and to punish infringements of those regulations within its territory or territorial sea.

Article 24 of the Geneva convention on the territorial sea and the contiguous zone,
1958 provides that in a zone of the high seas contiguous to it’s territorial sea, the coastal State
may exercise the control necessary to,

 Prevent infringements of its customs, fiscal, immigration or sanitary regulations

within its territory or territorial sea.
 Punish Infringement of the above regulations committed within its territory or
territorial sea
 The contiguous zone may not extend beyond 12 miles from the baseline from
which the breadth of the territorial sea is measured.

Hot Pursuit

Article 23 of the Geneva Convention on the High Seas, 1958 states that the coastal state may
hot pursuit a foreign ship when there is a good reason to believe that the ship has violated
international laws, and the laws and regulations of that State.

The Pursuit must be immediate and it may begin when the offending ship has reached
the high seas.

Article 23:

“The hot pursuit of a foreign ship may be undertaken when the competent authorities
of the coastal state have good reason to believe that the ship has violated the laws and
regulations of that state. Such pursuit must be commenced when the foreign ship or one of its

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boats is within the internal waters or the territorial sea or the contiguous zone of the pursuing
state, and may only be continued outside the territorial sea or the contiguous zone if the
pursuit has not been interrupted.It is not necessary that, at the time when foreign ship within
the territorial sea or the contiguous zone receives the order to stop, the ship giving the order
should likewise be within the territorial sea or the contiguous zone.”

Key Points:-

 The Right of the hot pursuit ceases as soon as the ship pursued enters the
territorial sea of its own country or a third state.
 It can be exercised only by a wardship or military aircraft or government service
specially authorized to that effect.
 When a ship is arrested in the high seas for hot pursuit which is not justifiable has to
be compensated for any loss or damage thereby sustained.

I Am Alone Ship Case (1928)

Liquor Treaty between U.S.A. and U.K. in September, 1928 – Certain Americans
purchased British Ship “I AM ALONE” – Registered in Canada - used for smuggling -
American officers fired and sunk the ship in high seas – Canada sued America for the
wrongful Act – America liable.

India’s Position

India signed the Geneva Convention on the territorial Sea and Contiguous zone, 1958,
the convention on High Seas and Convention on the Law of the Sea 1982. India enacted “The
Territorial Waters, Continental Shelf, Exclusive Economic Zones and other Maritime Zones
Act, 1976”. India incorporated all important provisions of the above conventions.

The Continental Shelf

Article 1 of the Geneva Convention on the Continental Shelf 1958 defines

“Continental Shelf”.

(a) To the sea-bed and subsoil of the submarine areas adjacent to the coast but outside the
area of territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the
superjacent waters admits of the exploitation of the natural resources of the said areas

(b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

Article 76 of the Law of Sea Convention 1982:-Definition of Continental Shelf

1. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a distance of200 nautical miles
from the baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance.

2. The continental shelf of a coastal State shall not extend beyond the limits provided for in
paragraphs 4 to 6.

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3. The continental margin comprises the submerged prolongation of the land mass of the
coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does
not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

4. (a) For the purposes of this Convention, the coastal State shall establish the outer edge of
the continental margin wherever the margin extends beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured, by either:

(i) a line delineated in accordance with paragraph 7 by reference to the outermost

fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent
of the shortest distance from such point to the foot of the continental slope; or

(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not
more than 60 nautical miles from the foot of the continental slope.

5. The fixed points comprising the line of the outer limits of the continental shelf on the
seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed
350 nautical miles from the baselines from which the breadth of the territorial sea is
measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line
connecting the depth of 2,500 metres.

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the
continental shelf shall not exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured. This paragraph does not apply to submarine
elevations that are natural components of the continental margin, such as its plateaux, rises,
caps, banks and spurs.

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf
extends beyond 200 nautical miles from the baselines from which the breadth of the territorial
sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed
points, defined by coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured shall be submitted by the
coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II
on the basis of equitable geographical representation. The Commission shall make
recommendations to coastal States on matters related to the establishment of the outer limits
of their continental shelf. The limits of the shelf established by a coastal State on the basis of
these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and
relevant information, including geodetic data, permanently describing the outer limits of its
continental shelf. The Secretary-General shall give due publicity thereto.

10. The provisions of this article are without prejudice to the question of delimitation of the
continental shelf between States with opposite or adjacent coasts.

The Continental Slope

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 The Continental Slope is the steep slope with which the shelf proper terminates; the
consonantal rise is the less sharply sloping area between the slope and the deep seabed.

The Exclusive Economic Zones

It has its roots in the concept of exclusive fishing zone and the doctrine of the continental
shelf. It combines and develops the two.

 Article 55 of the Convention of the Law of Sea 1982 gives meaning of the
Exclusive Economic Zone.

 Article 57 of the convention of law of sea 1982 provides that the exclusive
economic zone shall not extend beyond 200 nautical miles from which the breath
of the territorial sea is measured.

Rights of the Coastal States in EEZ

Article 56 explains the following rights:

(a) It has sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters
superjacent to the sea-bed and subsoil, and with regard to other activities for the
economic exploration and exploration of the zone, such as the production of energy
from water, currents and winds

(b) Jurisdiction as provided for in the relevant provisions of the convention 1982 with
regard to

i. the establishment and use of artificial islands, installations and structures;

ii. marine scientific research;

iii. the protection and preservation of the marine environment

(c) Other rights and duties provided for in the convention in 1982.

Article 59: where this convention does not attribute rights or jurisdiction to the coastal
state or to other states within the exclusive economic zone, and a conflict arises between
the interests of the coastal state or any other states, the conflict should be resolved on the
basis of equity and in the light of all relevant circumstances, taking into account the
respective importance of the interests involved to the parties as well as to the international
community as a whole.

Article 60 provides that in the exclusive economic zone the coastal state shall have the
exclusive right to construct and authorize and regulate the construction, operation and
use of;

Artificial islands

Installations and structures for the purposes provided in Article 56 and other economic
purposes

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 Installations and structures which may interfere with the exercise of the rights of the
coastal State in the Zone.

Article 61 provides that the coastal State shall determine the allowable catch of the living
resources in its exclusive proper conservation and management measure that the
maintenance of the living resources in the exclusive economic zone is not endangered by
over-exploitation. As appropriate, the coastal State and competent international
organizations, whether sub-regional, regional or global, shall cooperate to this end.

Article 62 provides that the coastal state shall promote the objective of optimum
utilization of the living resources in the exclusive economic zones without prejudice to
Article 61.

Article 73 lays down that the Coastal State may, in the exercise of its sovereign rights to
explore, exploit, conserve and manage the living resources in the exclusive economic
zone, take such measures, including boarding, inspection, arrest and judicial
proceedings, as maybe necessary to ensure compliance with the laws and regulations
adopted by it in conformity with this convention.

The Freedoms of the High Seas

High Seas:-

Article 1 of the Geneva Convention on the High Seas 1958 gives the meaning of the
term High Seas, “the term High Seas means all parts of the sea that are not included in the
territorial sea or in the internal waters of a State”.

Article 2 of the Geneva Convention on the High Seas 1958 delegates 6 important
freedoms to every State. It states that High Seas are open to all States and no State may
validly purport to subject any part of them to it’s sovereignty. It establishes these freedoms to
both coastal and non-coastal States.

The Freedoms of the High Seas

1. Freedom of navigation

2. Freedom of fishing

3. Freedom to lay submarine cable and pipelines

4. Freedom to flyover the high seas.

5. Freedom to construct artificial islands and other installations permitted under

international law

6. Freedom of scientific research

Article 2 has been developed and amended by Article 87 of the High Seas Convention, 1982:

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 The High Seas are open to all States, whether coastal or land-locked. Freedom of high
seas is exercised under the conditions laid down by this convention and by other rules of
international law.

The Freedoms of the High Seas

1. Freedom of navigation

2. Freedom of fishing

3. Freedom to lay submarine cable and pipelines

4. Freedom to flyover the high seas.

5. Freedom to construct artificial islands and other installations permitted under

international law

6. Freedom of scientific research

Restrictions to The Freedoms of the High Seas

1. Article 99 of the Law of Seas 1982 imposes that the high seas should not be used for
Slavery

2. Article 100 imposes that the high seas should not be used for Piracy

3. Article 108 imposes that the high seas should not be used for Narcotic Drugs

4. Article 116 to 120 provides that the high seas should not be Polluted by and State.

Criticism

The freedoms enunciated by the Convention of the High Seas 1982 are practically not
fully utilized for all the countries equally. The western countries more particularly USA
enjoys more and more than all other States.

International Sea-Bed Area

International Sea-Bed Area is also called “Ocean Floor and Sub-Soil”. The outer
limit of the continental shelf is the limit where the coastal states national jurisdiction in sea-
bed ends. International Sea-Bed area may be defined as the Sea-Bed and ocean floor of the
sea and soon sub-soil thereof beyond the continental shelf of a coastal State and extending
upto the continental shelf is other coastal States.

The General Assembly passed Resolution vide no. 2749 (XXV) on 1970. It declares that,

1. The Sea-Bed and Ocean Floor, and the subsoil beyond the national jurisdiction are
the “common heritage of mankind”.

2. No State can exercise or claim sovereign rights on any part thereof.

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 3. No State or person can claim or exercise rights against the resources incompatible
with international regime.

4. The area shall be open use exclusively for peaceful purposes by all states.

5. All activities regarding exploration or exploitation of resources shall be governed by

international regime.

International Sea-Bed Authority

Article 153 of the Law of the Sea 1982 enables the member States to establish an
International Sea-Bed Authority to carry and control the activities in the Sea-Bed Area on
behalf of mankind as a whole. Articles 154 to 158 provide rules for such activities. The
International Sea-Bed Authority shall have it’s seat in Jamaica.

This Organization consists of:

1. Assembly

2. Council

3. Secretariat

4. Enterprise.

Unit – 7

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 Extradition & Asylum
Nationality – Meaning & Definition

 Meaning:- A person by fact or relation of belonging to a particular nation or country

or origin with respect to a nation. Nationality generally means a loyalty of a person
towards a State.

DEFINITION:-

Starke, “Nationality has been defined as the status of membership of the collectively of
individual whose acts decision and policy are vouchsafed through the legal concept of the
State representing these individuals.”

Oppenheim, “Nationality of an individual the quality of being a subject of a certain State and
therefore its citizens.”

Fenwick:-“Nationality is such a bond which binds an individual with a state and makes him a
member of that specific State and provides for right of protection from that State with an
obligation to abide the laws promulgated by that State,”

Kelson:- “Citizenship or Nationality is the status of an individual who is legally an member

of a state and ornamentally he can be called a member of that community.”

IMPORTANCE OF NATIONALITY: -
 The right of protection of diplomatic representatives are available because of
nationality.
 If any state does not restrain a person of its nationality from such
disadvantageous action which are affecting other States then the fist State shall
be responsible to other states for such actions of its nationals.
 Ordinarily states do not refuse to accept its nationals in extradition.
 One of the effects of the nationality is that the state has a right to refuse
extradition of own national.
 By the practice of many States, at the time of war the Enemy character is
determined on the basis of nationality.

Sl.
Nationality Domicile
No.
1. A Link between State and Individual. Means Residence of a person
It is a loyalty and lovely affection over
2. Can acquire nationality after some years
the State
3. Acquisition is difficult Acquisition is easy

Sl. Nationality Citizenship

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 No
1. It is a concept of International Law It is a concept of State Law
It has a narrower significance. Permanent
2. It has a broader significance
allegiance to a country.
3. Includes all persons All nationals does not possess citizenship
A person may continue his nationality A person may not live after losing his
4.
even after losing his citizenship, citizenship.
5. It is not accompanied with residence. It is accompanied with residence.
6. A mere possession of nationality does It qualifies a person to have all political
not qualify a person to have all rights.
political rights.
7. It is a link between State and Subject. It is link between Person and State Law

Modes of Acquisition of Nationality

According to International Law nationality can be obtained by following means :-

1. By Birth: - In the country in which a person is born he obtains the nationality of that country
by birth or at the time of birth person gets the same nationality which his parents are having.

2. By Naturalization: - By naturalization also nationality can be obtained. When an alien living

in a country obtains the nationality of that country it is called naturalization. In Nottebohm
case-1955, it was held that a State has no obligation in granting nationality to a person
through naturalization if that person has no relations with that state. The court propounded
the real and effective nationality doctrine. If any person obtains nationality of two states then
in case of controversy between the two nationalities the nationality of that state shall be
accepted with which the person fundamentally has real and effective relationship.

3. By Resumption:-Sometimes it so happens that a person may lose his nationality because of

certain reasons subsequently he may resume his nationality after fulfilling certain conditions.

4. By Subjugation:-When a State is defeated or conquered all the citizens acquire the

nationality of the conquering State.

5. Cession:-When a state has been ceded in another State all the people of theterritory acquire
nationality of the State in which their territory has been merged.

Nottebohm Case (1955)

(Liechtenstein vs Guatemala)

FredrichNottebohm born in Germany 1881 – German National by Birth - Went to

Guatemala country for business in 1905 – His Brother resides in Liechtenstein - Nottebohm
often visits his brother – He has several relatives in Germany – Liechtenstein is an
independent country since 1866 - In 1938 he left Guatemala and went to Liechtenstein –
applied and received naturalization as citizen of Liechtenstein in 1939 - Continued to do

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business in Guatemala behaving as a national of Liechtenstein on the passport granted by
Liechtenstein – Second World War – Germany, Italy and Japan – America, Britain and Japan
etc. – other side – Guatemala supported America - Guatemala declared Nottebohm as Enemy
and confiscated the properties of Nottembohm under Guatemala law in 1949 – Liechtenstein
filed a case – defends Nottebohm – demands 10 million Swiss Francs as reparation and
damage – for confiscation of properties illegally – Nationality was considered negatively -
Found that there is no “animus” - to settle in Liechtenstein – no genuine link between
Nottebohm and Liechtenstein – Nationality not recognized as naturalization and the plea
was rejected.

 By Migration – To leave one country to settle or work in another. Ex. Goorkas of

Nepal long-standing relationship.

Loss of Nationality

1. By Release:-In some states there are such legal provisions are available by which they
grant permission to release their nationals from its nationality. For this type of release an
application is necessary. If the application for release is accepted then the applicant is
released from the nationality of that state.

2. By Deprivation:-Often in many states such legal provisions are available by which if a

national of that state enters into service of another state without the permission of home state.
He would loss nationality.

3. By long residence abroad:- The loss of nationality may take place on the ground that the
individual stayed abroad beyond a certain time limit. Many states have such type of legal
provisions which terminates the nationality for the stay of beyond limit.

4.By Renunciation:- It may also be the cause of loss of nationality, when a person is having
nationality of two or more states, he has to choose the nationality of one & has to renounce
the nationality of other state.

5. By Substitution:-In some states the nationality is terminated by substitution. A person gets

nationality of one state in place of other states.

Dual Nationality

 Every Person had the Right to Nationality under Article 15(1) of the Universal
Declaration of Human Rights, 1948.
 Article 15(2) provides that no one shall be arbitrarily deprived of his nationality
and shall be denied the right to change his nationality.
 Double Nationality occurs in case of married women and also in case of children
born in foreign countries. Conflict arises when which State has to protect the
person who has two nationalities.

Canevaro Case (1912)

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(Italy vs Peru)

Raphael Canevaro born national of peru State – obtained Italian national by

naturalization – did not relinquish Peruvian nationality even after owning assets in Italy –
Stood in elections and nominated to send as consul general of Netherlands on behalf of
Peruvian government – permanent court of Arbitration held that he was a peru national.

Nationality of Married Women

Women is born in one State by birth, may marry a person belonging to another
country. The status of the nationality is solved by Hague Conference, 1930 (Articles 8 to
11). That women marrying another national automatically acquires nationality of her husband
and can also retain her birth nationality.

Statelessness

Article 15 of UDHR, 1948 – no person shall be denied of nationality.

Stoeck vs The Public Trustee (1921)

Stoeck born in germany 1872 – left to belgium 1895 – submitted & received
relinquishment of nationality in 1896 – went to England in 1896 – resided permanently -
During 1st World War in 1916 British Government declared him enemy national and
acquisitioned his properties and expelled him in 1918 – Permanent Court of Arbitration held -
not a German national - stateless person and declared expulsion order void.

Extradition

Extradition is a Latin phrase comprising of two words i.e. ex traditio.

Ex – to

Traditio – give up / surrender.

Thus in international Law, Extradition means delivery of criminal or fugitive from

justice by one county to another country on sufficient grounds shown.

Definition

Oppenheim defines, “Extradition is the delivery of accused or a convicted individual

to the State on whose territory he is alleged to have committed or to have been convicted of
a crime , by the State on whose territory the alleged criminal happens to be for the time
being”

Object

The Main Object is to secure peace in the society, else he may be a threat to the
country or to the entire world.

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 Ex. Dawood Ibrahim escaping to Dubai.

Essential Conditions for Extradition

1. Treaty

2. Political Offenders

3. Double Criminality

4. Military Criminality

5. Religious Criminality

6. Rule of Specialty

7. Conditions

8. Evidence

9. Procedure

10. Own Citizens

Treaty

A State cannot claim extradition as of a right. There must be a treaty between the two
countries. International Law does not recognize Extradition as a general rule of States.

Political Offenders

Extradition of political offenders are not accepted but only in case of other criminals
only. However, it is difficult to distinguish and define a Crime, Political Crime and Politically
Motivated Crime.

Castoni Case

Castoni was the leader of dissident group in Switzerland. He killed a member of State
council – murder charged – fled to England – took asylum – extradition denied on basis of
political offender.

Political Offenders

Celestin Jacquin Case

Celestin Jacquin a French National – domiciled in Belgium – attempted to murder

Emperor Nepolean-III by exploding railway line but escaped – French government requested
Belgium to extradite – extradition failed due to political offence – Belgium Government
incorporated a clause “Attentat Clause” – the murder of the head of foreign national and his
family is not to be considered as political offence – several European countries adopted this
clause.

Conditions for Extradition

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Double Criminality

It is a ground for extradition. When a crime is a crime in both the countries it is

double criminality.

Military Criminality

Extradition is not allowed in case of military criminality

Religious Criminality

Extradition is not allowed in case of Religious Criminality

Rule of Specialty

This rule is emanated from Natural Justice. Extradition for the purpose of prosecution
only for that offense alone.

Conditions – Treaty based terms in Extradition

Evidence – Sufficient for Extradition

Procedure – According to the Law of the Land

Own Citizens – Extradition too remote.

Sl.
Extradition Expulsion
No.
1. Dealt under Extradition Act, 1962 Dealt under Foreigners Act, 1946
2. Needs Assent of Two Countries Can be done by one country
Need not be a Criminal. A foreigner
3. It is an extension of Criminal Branch. expelled may be against a government.
Ex. Diplomat or Secret Agent
It is only possible with Bi-Lateral Treaty
4. Treaty not necessary
between the two Countries
5. It is a combination of Administrative It is purely Administrative Act
and Judicial Acts
6. There must be Magisterial Inquiry Magisterial Inquiry not necessary
7. Person Extradited is punished Person Expulsed is not punished

India’s Position on Extradition

It is based on Indian Extradition Act, 1962. Section 31 of the Act provides restriction to
Extradition.

 Political Criminal
 Limitation
 Rule of Specialty
 Unfettered Powers to Central Government of any fugitive criminal.

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DharamTeja’s Case

DharamTeja Managing Director of Jayanthi Shipping Corporation – Committed

Embezzlement of crores of Rupees – Govt. of India initiated criminal proceedings – escaped
to Ivory Coast – Extradition refused lack of treaty – later fled to England – England
Extradited – existence of extradition treaty – DharamTeja prosecuted and punished.

Asylum

Asylum is from a Latin Phrase

a + sylon. (a=not) (sylon=right of seizure).

Asylum means a sanctuary or place of refuge.

Definition

 J. G. Starke in his book “An Introduction of International Law” defines:

Asylum involves two important elements:-
 A shelter which is more than a temporary refuge
 A degree of active protection on the part of the authorities which have control
over the territory of asylum.

Kinds of Asylum

 There are two kinds of Asylum:

 Territorial Asylum

 Extra-Territorial Asylum (Diplomatic Asylum)

Extra - Territorial Asylum

A) Territorial Asylum :

Territorial Asylum is granted by a State on its Territory, it is called Territorial

Asylum. The right to grant asylum by a State to a person on its own territory flows from the
fact that every State exercises territorial sovereignty over all persons, on its territory to any
one. The grant of territorial assylum therefore depends upon the discretion of a State which is
not under a legal obligation to grant asylum to fugitive, As no precise rules as to grant of
territorial asylum. General Assembly call upon the International Law Commission in 1959 to
undertake the codification of the principles and rules of international law relating to right of
asylum. On 14th December 1967 General Assembly adopted Declaration of Territorial
Asylum through the adoption of resolution. The declaration consists of a Preamble and four
Articles dealing with the principles relating to the grant of refusal of asylum. This
Declaration provides that the right to seek and enjoy asylum may not be invoked by any
person with respect to whom there are serious reasons for considering that he has committed
a crime against peace, a war crimes and crimes against humanity. Article 4 of the this

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Declaration provides that the State granting asylum shall not permit persons who have
received asylum to engage in the activities contrary to the purpose and principles of United
Nations. From the above provisions of the declaration it is clear that State does not have
absolute right to grant asylum. The grant of asylum is a part of which cannot be exercised in
respect of International crimes including genocides.

 A State which grants asylum to a refugee in her own country.

 Article 14 of UDHR:- Even one has a right to seek and enjoy in order countries
asylum from protection.
 The Convention on territorial asylum, 1945 states, “ Every State has right in the
exercise of its Sovereignty, to admit into its territory such persons as it deems
advisable without, through the exercise of the right, giving rise to complaint by
any other State”.

Some examples of territorial Asylum -

1) Idi Amin have been given by Saudi Arabia.

2) Baby Dok have been given asylum by France.

3) Dawood Ibrahim mafia Don is given asylum by Dubai Government.

4) Salman Rushdie for his controversial novel Satanic Verses given Asylum by Great Britain.

5) TaslimaNasreen a Bangladeshi writer for her novel Lajja granted asylum by Sweden.

6) Tiger Menon, wanted in Bombay Bomb blast case, granted asylum by Pakistan.

7) Dalai Lama and his followers was granted asylum by government of India.

B) Extra-territorial Asylum -

Active protection is given outside the territory not belonging to the state granting it.
Thus when Asylum is granted by a State at places outside its own territory. It is called extra-
territorial Asylum'.It usually describes to those cases in which a State refuses to surrender a
person demanding who is not upon its own physical territory but is upon one of its public
ships lying in foreign territorial borders or upon its diplomatic premises within foreign
territories. Thus Asylum is given at legation, consular premises and warships are the
instances of extra-territorial asylum.

A State grants asylum to a refugee in its embassy or its public vessels.It can be
granted in War ships, Merchant vessels, Consular premises etc.

Stake explains this as:

 Territorial Asylum is an incident to territorial Sovereignty itself.

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  Extra-Territorial Asylum is a derogation from the Sovereignty of the territorial
State in so far is required to acquiesce in fugitive from its authorities employing
protection.

1. Diplomatic Asylum / Asylum in Legation :

Since granting extra-territorial Asylum or diplomatic Asylum involves a derogation

from the sovereignty of the State, International law ordinarily does not recognize a right to
grant asylum in the premises of legation. But asylum may be granted in the legation premises
in the following exceptional cases.

 Individual who are physically in danger from violence.

 Where there is well established and binding local custom.
 When there is a special treaty between territorial State and the state of
Legation concern.

Asylum in consular premises -

2. The above principle also apply in the case of Grant of asylum in consular premises.

3. Asylum in the premises of international institution -

Though International Law does not recognise any rule regarding the grant of asylum
in the premises of International institution, however, temporary Asylum may be granted in
case of danger of imminent violation.

4.Asylum in Warship -

There are conflicting views to grant of asylum in warship, but it is argued that Asylum
may be granted to political offenders.

As far as a asylum Warship is concerned, it may be granted on the ground of

humanity, in cases if extreme danger to the individual seeking it. Thus , right to grant asylum
on Warship may be granted in the same way in the case of Legation and also subject to the
operation of the same conditions.

5. Asylum in Merchant Vessels -

Since merchant vessels do not enjoy immunity from local jurisdiction, they are not
competent to Grant asylum to local offenders. Thus, if a person after committing a crime on
shore seeks asylum on board a foreign merchant ship he may be asserted by the local police,
either before the ship leaves the port or when it comes into another port of the same State.
There is, therefore a rule that asylum is not granted on merchant vessels . However, State
may grant asylum if they conclude a treaty to this effect.

6.Asylum in the premises of international Institutions :

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 Whether a person taking refugee in the premises of an international institution or
organisation would be granted asylum is a question which cannot be given with certainity in
the absence of any rule in this regard and also because of lack of practice. However, a right to
grant temporary refuge in an extreme case of danger from mob cannot be ruled out.

Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in

exceptional cases and it is necessary to establish legal basis in each particular case.

Haya de la Torre’s Case

(Columbia vs Peru)

Rebellion took place in peru 1948 – failed – arrest warrant – rebellion leaders – Haya
de la Torre sought asylum to Columbia Embassy – situate in Lima capital of Peru – granted
asylum in 1949 – planned to take him to columbia - Peru refused – arranged army around
Columbia embassy – suit filed – contended as political offender – ICJ declared Columbia not
bound to surrender the refugee Haya de la Torre as a political refugee.

Unit – 8

Diplomatic Agents
Meaning

 Diplomatic Agent is a person who is the head of the diplomatic mission.

 The Primary function of the Diplomatic Agent is to enhance friendly relations &
business in those countries etc.
 He is the representative of his State.

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  He has to do all activities on behalf of his State.
 He has to discuss about his Government’s Policies and attitude etc. to the
receiving State.

Definition

Starke defines:-“ Consequent on a development over some hundreds of years

Institutions of Diplomatic Representatives has come to be principal machinery by which
the intercourse between States is conducted”.

Scope

The Vienna Convention on Diplomatic Relations 1961 deals with the rights,
privileges and immunities to the diplomatic agents. Based on it, India has also passed The
Diplomatic Relations (Vienna Convention) Act, 1972.

Classification of Diplomatic Agents

Ambassadors

An official envoy; a diplomatic agent of the highest rank accredited to a foreign

government or sovereign as the resident representative of his or her own government or
sovereign or appointed for a special and often temporary diplomatic assignment

Legates

They are representatives appointed by Pope. Legate is the synonym envoy. The
Vatican still sends papal legates to represent the pope's point of view in negotiations.

Ministers Pleni-Potentiary

 Plenus = Full; Potens = Power

 Ministers having full power in representing the State.
 They are second category of diplomatic agents who enjoy less immunities and
privileges than Ambassadors.

Charge-d Affaires

An official placed in charge of Diplomatic business during the

temporary absence of the Ambassador or minister.

PERSONA NON GRATA

Article 9 of Vienna Convention provides that the receiving State may at any time without
explaining the reason notify the “Person not accepted” to the sending State and the
sending State has to immediately recall or cancel the mission.

Functions of Diplomatic Agents

Article 3 of the Vienna Convention on the Diplomatic Relations, 1961 enunciates the
following functions.

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  Promoting friendly relations between the two countries.
 Having regular contacts and negotiations with receiving state.
 Taking all precautionary steps in protecting nationals of sending state residing in
receiving state.
 Issuing passports and visas for intending and appropriate persons who want to
visit the sending State.
 Sending reports to his country on opportunities available in receiving State in
business, culturing etc.

Rights, Immunities and Privileges

 Inviolability of the premises of Mission – Article 22

 Inviolability of the personnel of Mission – Article 29
 Exemption from taxes – Article 23
 Inviolability of archives and documents – Article 24
 Facilities – Article 25
 Movement and Travel in receiving State – Article 26
 Communications – Article 27
 Immunity from inspection of personal baggage – Article 27
 Immunity from Criminal Prosecution – Article 29
 Private Residence – Article 30
 Immunity to be a witness - Article 31
 Exemption from taxes on personnel – Article 34
 Immunities to diplomatic agent in the territory of a third State – Article 40
 Immunity from local and military obligations – Article 35
 Immunity from Social Security Provisions – Article 33.
 Worship
 Right to control over his personnel
 Immunity from Civil Jurisdiction

Duties of Diplomatic Agents

 Duties in accordance with International Law

 Duty to respect the laws of receiving State
 Duty not to interfere in the internal affairs of the receiving State.
 Official Duty owed to the sending State
 Incompatible Functions – Article 41
 Prohibition on Professional or Commercial Activities – Article 42

What are the different classes of Diplomatic Agents? Describe briefly their privileges &
Immunities.

INTRODUCTION: -

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 During the Ramayana and Mahabharata period some aspects of International Law were
in their developed stage. Examples of international law relating to diplomatic agents may be
cited in this connection. The permanent appointment of diplomatic envoys began from the
seventeenth centaury. The rights, duties, immunities and privileges etc., of the diplomatic in
18th. &19th. Centaury was mostly in the term of customary rules. The first great landmark
was the Congress of Vienna in 1815, wherein the customary law regarding diplomatic agents
was clarified and codified. The contents of Vienna Convention were adopted finally in
1961. The Indian Parliament passed the Diplomatic Relations on the basis of Vienna
Convention-1972 to give effect to this convention. This law relating to the diplomatic and
consular affairs remains the strongest section of International Law. DIFFERENT
CLASSES OF DIPLOMATIC AGENTS:-The diplomatic agents have been classified
according to their status and functions. The first classification of diplomatic agent was made
in the Congress of Vienna in- 1815 under which diplomatic agents were classified under the
following categories:-
1.Ambassadors and Legates:-These are the first category of diplomatic agents
and are the complete representatives of the sovereignty states. Their designation is
Ambassadors or Permanent Representatives of their respective countries of U.N.
They are appointed by POP.

2.Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic

agents of second category and as compared to the diplomatic agents of the first
category. They enjoy less privileges and immunities.
3.Charge-d affairs: - They are the diplomatic agents of the last category. The
main reason for this is that they are not appointed by the head of State but are
appointed by the Foreign Minister of the State. Their status is considered below
the Minister Resident.
4.Minister Resident: - In the congress of Aix-la-Chappele-1818, this category
was added at category No.3, but it was again dropped by 1961 Convention.

 PRIVIEGES & IMMUNITIES OF DIPLOMATIC AGENS:-As observed by

the International Court of Justice on 15.12.79 in a case of United States
Diplomatic and Consular Staff in Tehran: For enabling states irrespective of their
differing constitutional and social systems to achieve mutual understanding. One
of the pillars of modern International Law is the diplomatic immunities of the
Ambassadors. However the following are the immunities and privileges of the
diplomatic agents:-
 Inviolability of the person as envoys: - The diplomatic agents are extended
personal safety and security. If an envoy is attacked it is deemed that attack was
on the country to which the envoy is belonging.
 Immunity from criminal jurisdiction of the court: - The courts of the state
where the envoy is posted do not treat the envoys within its criminal jurisdiction.
It ordinarily believed that envoys will not violate the laws of the host country. But
there are certain circumstances when the envoys lose their immunity for example
when they indulge in conspiracy against the host state.

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  Immunity from civil jurisdiction:- the envoys also enjoy the immunities of civil
nature also no suit is filed in the civil court of the host state against envoys. As per
Vienna convention three exceptions when immunity is not available: i) for any
immovable property within the jurisdiction of host state he has. ii) in a matter of
inheritance where the envoy is a successor or executor in his personal capacity. iii)
The commercial activities of the envoy in personal capacity.
 Immunity regarding residence:-His premises are inviolable and no search is
allowed in his residence. If any person intrudes the premises of envoy to avoid
arrest, it is the duty of envoy to deliver such person to the host government to
decide.
 Immunity from presence in a court as a witness:- Any envoy cannot be
compelled to give an evidence in any Court but he himself can waive this
privilege and appear before a court.
 Immunity from Taxes:-Vienna convention provides this immunity to envoys for
payment of local taxes. But water, electricity, telephones etc. not included.
 Right to worship:-Within the premises of their embassy, envoys are free to
follow according to their choice the mode of worship. B) Right to exercise
jurisdiction over the staff and family in the embassy:- Envoys are free to
exercise their jurisdiction over the subordinate staff & family in the Embassy to
keep the embassy going on.
 Right to travel freely in the territory of receiving state:-Vienna convention has
provided a new right to envoys, they can travel freely within the territory of host
state and go anywhere.
 Freedom of communication for official purposes:- Vienna convention-1961 the
envoys have freedom to communicate with his own state in context to their
official work.
 Immunity from Military and other local obligations :- Vienna convention
granted the immunity to envoys from military and other local obligations of the
host state. BASIS OF IMMUNITIES AND PRIVILEGES OF DIPLOMATIC
AGENTS:- Theory of extra territoriality: - According to Grotius diplomatic
agents though physically present upon the soil of the country to which they are
accredited. It is justified base when they are treated to remain for all purposes
upon the soil of the country to which they represent. Functional Theory: - the
reasons for granting privileges and immunities to the diplomatic agents are that
they perform special type of functions that is why they are called functional and in
modern times this theory is accepted as correct.

U.S. vs Iran
(U.S. Diplomatic & Consular Staff in Tehran Case)

Revolution in Iran against Shah Government – Shah was removed from kingship
under the leadership of Ayatollah Khomeini – fled to America and received asylum under
medical treatment – angered Iranian Students - Took possession of US Embassy in Tehran by
force – captured 52 persons and documents in embassy – Iranian Government initiated no

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action – America filed case in ICJ – argued Iran violated number of treaties - 1961 and 1963
Vienna convention on Diplomatic & Consular Relations were violated – American
Commandos tried to camp the release of 52 persons but failed due to air collision – no injury
to Iran - ICJ declared that Iran violated the International Principles – Ordered to redress the
situation and reparation costs – Iran did not participate in proceeding nor Honored the
judgment – USA negotiated with Iran and released hostages.

Unit – 9

International Treaties
Meaning

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 Treaty means an International Agreement concluded between States in written form and
governed by International Law, whether embodied in a single instrument or in two or more
related instruments and whatever it’s particular designation.

INTRODUCTION:-

In the modern period International treaties have been the first and foremost source of
international law. Whenever an international court has to decide an international dispute its
first endeavour is to find out whether there is an international treaty on the point or not. In
case there is an international treaty governing the matter under dispute the decision of the
court is based on the provisions of the treaty. International treaties occupy the same
significant position in the field of international law as the legislation occupies in the
municipal law.
DEFINITION OF TREATY: - International treaty is an agreement between two or more
states under the international law to create mutual relationships. According to Oppenheim,
“International treaties are those agreements between the states which are of contractual nature
and produce legal rights and obligations.”
According to Starke, “Usually in all cases, the purpose of treaties is to create binding nature
of obligations on the parties to the treaties.”
According to Vienna Convention on treaties-1969, “Treaties and contracts are document
under which two or more states under international law establish or try to establish their
relations.”

CLASSIFICATION OF TREATIES:-

Treaties are basically classified into

• Bilateral Treaties

• Multilateral Treaties

Oppenheim classifies

• Law making treaties

• Treaties for their purpose

MC Nair classified as

• Treaties in the form of Agreements between States

• Treaties in the form of Agreements between Heads of States

• Agreements in the form of inter-governmental agreements

• Agreements between Departments, ministers, other organs or agencies of

Governments.

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 One of famous jurist Mc Nair has classified treaties in the following manner:-

 Treaties having the character of conveyance.

 Treaty contracts.
 Law making treaties: a) Treaties creating constitutional law just as charter of
ICJ. b) Pure law making treaties e.g. labour conventions negotiated by ILO.
 Treaties akin to charter of incorporation e.g. treaty by which International Posta
Union -1874 came into existence.
 Vattel has classified treaties into four categories i.e. equal, unequal, real and
personal.
 Prof.Oppenheim has classified the treaties into two categories:-

o Law making treaties. 2. Treaties made for other purposes.

HOW THE TREATIES ARE SIGNED

FORMULATION OF TREATIES: - For making the treaty of binding nature, the following
conditions are to be fulfilled:

1. Accreditation of persons on behalf of contracting parties:- The intending parties of

treaties should appoint persons as their representatives to negotiate on their behalf
authoritatively for arriving at terms and conditions of a treaty.

2. Negotiations and adoption:- After due negotiations the terms and conditions of a treaty are
clunched and for its adoption a decision is made by both the parties.
3. Signature: - The representatives sign on each and every terms of a treaty to make it
enforceable. A treaty becomes enforceable against a party only after the signature of the party
or its representative is obtained on the treaty papers.

4. Accession and Adhesion: - The practices of the States show that by the process of accession
and adhesion a state which is not a party to a treaty may become a party to it by signing it
afterwards.

5. Enforcement of a treaty:- Usually the enforcement of a treaty depends and begins according
to the terms and provisions as laid down in the treaty itself. Many treaties commence after
the signature is affixed by the authorised person while those which need ratification by the
other states in certain number begin after the required number of states have ratified. The
general rule of International Law is that a treaty is enforceable against the parties only which
have entered and signed a treaty.

6. Registration &Publication:- It is necessary after the treaty comes into force, it may be got
registered and published. Under the provisions of article 102 of UNO charter. If it is not
registered with the UNO that in case of any dispute comes into existence for its settlement

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 through the organs of UNO the treaty which is not registered cannot be referred to for the
settlement of that dispute.

7. Basis of binding force of the International treaties:-According to Angilotti, “Binding force

of International treaty gains its binding force.
PROCEDURE OF RATIFICATION:- Ratification is a very important processes ordinarily
the terms and conditions of a treaty. Treaty does not become enforceable without
ratification. The President of a State or Chief of the Govt. Ratify the signatures of its
representatives who negotiated for arriving at the agreed terms and conditions of a treaty.

Classification of Treaties

Treaties are basically classified into

• Bilateral Treaties

• Multilateral Treaties

Oppenheim classifies

• Law making treaties

• Treaties for their purpose

MC Nair classified as

• Treaties in the form of Agreements between States

• Treaties in the form of Agreements between Heads of States

• Agreements in the form of inter-governmental agreements

• Agreements between Departments, ministers, other organs or agencies of

Governments.

Stages in formation of Treaties

1. Accredition or Authorization

2. Negotiation and Adoption

3. Signatures

4. Ratification

5. Accession of Adhesion

6. Pactasuntservanda

7. Registration and Publication – Art 102 of Charter of UN

8. Application and Enforcement – Art 24 (VCLOT)

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PactaSuntServanda

It means “An Agreement must survive”. The States are bound to fulfill in Good
Faith the obligations assumed by them under the treaties.Thus, PactaSuntServanda in the law
of treaties is based on Good Faith which also has a binding character.

Article 2(2) of the Charter of United Nations provides:

• “All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations assumed
by them in accordance with the present Charter”

Article 26 of the Vienna Convention on the Law of Treaties, 1969 provides:

• “Every treaty in force is binding upon the parties to it and must be performed
by them in good faith”.

Ratification of Treaties

Ratify means to confirm. Ratification of a Treaty means, the head of the state or its
government approves, it ratifies the signatures of its authorized representative.

Article 14 of the Vienna Convention on the Law of Treaties, 1969 Explains the mode
and effect of ratification.

“The consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were agreed that ratification
should be required;

(c) the representative of the State has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the
full powers of its representative or was expressed during the negotiation.

Effect: The consent of a State to be bound by a treaty is expressed by acceptance or

approval under conditions similar to those which apply to ratification.

Modes of Termination of Treaties

1. Termination by Consent

2. Termination by Treaty Provision

3. Error or Mistake – Article 48

4. Fraud or Corruption - Article 49 & 50

5. Coercion – Article 51 & 52

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 6. Unequal Treaties

7. Jus Cogens – Article 53 & 64

8. Material Breach – Article 60

9. Supervening Impossibility of performance – Article 61

10. Rebus Sic Standibus – Article 62

1) Expiry of Specific Period :

When a treaty is concluded for a particular period, which expressly provided in

treaty contract then after the expiry of that period, treaty ipso facto comes to an end.

2) Where the main purpose/object of the treaty is fulfilled :

In case of treaties imposing no continuing obligations, they cease to operate on the

fulfillment of the object.

3) Termination by Mutual Consent :

It is an outcome of consensus. Treaty comes into existence by the consent of the

party State. So it can come to an end by mutual Consent.

There are three ways for termination of by mutual consent see in Detail >>>>
Termination of Treaties by Mutual Consent.

4) One of the Party State Extinct :

When the existence of one of the party state comes to an end, generally in case of the
merger of one state into another state, the treaty stand terminated.

5) When that obligation of the treaty becomes incompatible with the Charter of

United Nations :

Article 103 specifically provides that in the event of a conflict between the
obligations of the members of the United Nations and their obligations under any other
agreement, their obligations under the Charter shall prevail.

6) War Between Party States :

In a War, If the Party States are the enemy against each other, then contractual
obligations come to an end and treaty ipso facto stand terminated.

7) Dissolution by Withdrawal by Notice :

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 The treaties can be dissolved by a notice by either party to the other party. If no
period of the existence of the treaty is prescribed by the parties, then treaty can be determined
by the requisite period of the termination of treaties by a notice. When a prescribed period of
notice is given expressly in the treaty then it is to be strictly complied with.

8) Terms of treaty becoming injurious to State :

By such treaty either wholly or partly the terms of treaty become injurious to one of
the party state, thereby interest of one party state, likely to be adversely affected. In such
circumstances, there is conflict as to term and sovereignty of the state, whereby sovereignty
of that state is in danger. Its survival is more important than such obligations. In such cases
of conflict, the law makes it very clear and contractual obligation comes to an end.

9) Non- Performance of certain Essential Conditions :

If the Treaty grants a unilateral right of denunciation to one or all of the consenting
States in case of failure of certain essential conditions, the treaty comes to an end on the
happening of such contingency.

10) Doctrine of Rebus sic stantibus :

Rebus – by things

Sic – thus

Standibus – stand as they are.

This means “so long as things stand as they are”.Article 62 explains the principle of
Rebus Standibus.

The meaning of doctrine Rebus sic stantibus is if by any unforeseen change, or

circumstances an obligation provided for in the treaty should imperil the existence of one of
the State. and such state has a right to demand and to be released from the contractual
obligations. It means when the terms of the agreement are injurious to one of the party State,
or the purpose of treaty is over or there are changes in the circumstances, or there is conflict
with the status of or existence of one of the party State, or when the object of treaty is no
more there, then in such cases doctrine of Rebus Sic Stantibus is made applicable and Treaty
concluded comes to an end. This is based on the basic principle of self Preservation and
Development in accordance with the growth and requirement of the nation.

11) Doctrine of Jus Cogens :

Lastly, a treaty may be declared void if it conflicts with a peremptory norm (it also
called jus cogens)of general International Law.

Jus – Moral as well as legal Obligations and Rights.

Cogens – Forcing, compelling.

A treaty can be declared void in international law, if it conflicts with the peremptory norm
and such treaty is considered as void ab initio.

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 The Principle of Jus Cogens is incorporated in Article 53 & 64.

Examples

• A Treaty compelling the performance of any other act criminal under

International Law

• A Treaty compelling slavery, piracy & Genocide etc..

Unit – 10

United Nations
League of Nations

First World War – 1914 to 1918 – Germany Greediness – Huge loss to life and
economy – Treaty of Versailles 1919 – Britain, France and America – League of Nations estd
in 10/01/1920.Assembly, Council & Secretariat – Organs – 1 member 1 vote, 1 member 3
representatives in assembly – America, Britain, France, Italy and Japan are permanent
members.

League of Nations - Organs

Assembly – Supreme Body

Council – Executive Body

Secretariat – Secretary General – Chief appointed by Council with the approval of

Assembly

PCIJ – Judges were elected by Assembly and Council

League of Nations - Dissolution

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 Weakness and Failure caused League of Nations to be dissolved in April 1946 –
Germany’s greediness and war consciousness caused Hitler for 2nd World War – Italy and
Japan supported Germany.

• Defects

• Unanimous Decisions – Democratic Principle of Majority was not adopted

• Wars – No control over the members of the League

• America – America took interest in creating it but did not join.

• Withdrawal – Easy

• Amendment – if not interested the membership ceased

• Discrimination – Great Powers showed selfish interest

• Peace – failed to maintain

United Nations Organization

Introduction

The Sanfransisco Conference held in Jan 26th 1945 with an object to maintain
peace.51 Countries Participated in it and was ratified in October 24th 1945.October 24th 1945
is called as “United Nations Day”

Purpose of UNO – Article 1

• International Peace and Security

• Friendly Relations

• Co-Operation

• Center for Harmonizing Acts.

Principles of UNO – Article 2

• Equality

• Benefits – Good Faith

• Settlement of Disputes – International Peace, Security and Justice

• Non–Intervention – States should not intervene in UNO taking enforcement.

• Non-Members – to adhere to these principles for maintenance of peace and security

Domestic Jurisdiction

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 UN not to interfere in internal affairs of the State, subject to application of
enforcement under chapter VII

Membership – Article 3 to 6

• Article 3 – Original Members participated in San Fransisco Conference

• Article 4 – Other Peace loving State is accepted upon recommendation of Security

Council and Decision of General Assembly

• Article 5 – Suspension of Membership against the enforcement and preventive action

by UN

• Article 6 – Expulsion of Membership against continuous Violation of Principles

Principal Organs of UNO

General Assembly

• Principal Organ & Head of UNO

• Covered under Article 9 to 22 of Chapter IV

• It consists of all the members – Art 9

• 1 member 1 vote – Article 10 of the Charter of UN

General Assembly - Functions

Meets once a year & on Special Occasions

• Deliberative Functions

• Supervisory Functions

• Financial Functions – Article 17

• Elective Functions

• Constituent Functions

Deliberative Functions

• Discussion – Article 10

• Maintenance of International Peace and Security – Article 11

• Co-operation – Article 13.

Resolutions of General Assembly

• Decisions can be made only based on 2/3rd Majority present and voting.

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 • Does not act as a world legislative authority.

• Binding force is obtained through intension of the members.

• Acts as a law creating mechanism.

Security Council

• Chapter V – Article 23-32 of Charter of UN

• Composition – Article 23

• Powers & Function – Article 24 to 26

• Voting – Article 27

• Procedure – Article 28 to 32

Composition:

Consists of 15 members – 5 permanent members Britain, America, Russia,

China & France – 10 non-permanent members elected for 2 years – 1 member 1
representative.

Voting Rights – requires 9 affirmative votes including affirmative votes of 5

permanent members on matters having great importance.

Veto – it is conferred only to 5 permanent members.

Double Veto – power to decide in the absence of permanent members. Veto is

only for non-procedural questions. It is used to question in the absence.

Functions and Powers

1. Maintenance of International Peace and Security

2. Elective Functions – election of judges of ICJ (Art 4 & 8 of Statute of ICJ)

3. Supervisory Functions

4. Constituent Functions – Article 108 (Amendment)

The International Court of Justice

It’s statute is based on “Statute of Permanent Court of International Justice” newly

named as ICJ

Jurisdiction

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 a) Contentious Jurisdiction
b) Advisory Jurisdiction

Contentious Jurisdiction

Voluntary Jurisdiction – Art 36(1) (Referendum) & Art 59 (Binding Force)

Optional Jurisdiction – ipso facto (fact not mentioned) Art 36 (2-6).

Advisory Jurisdiction

Articles 65 to 68 deals with advisory jurisdiction

Article 65 – Legal Question

Article 66 to 68 – circumstance in which advisory jurisdiction be invoked

Other Organs

Economic & Social Council – Art 61 to 71 (Economic, Social, Cultural, Educational

& Health etc.)

The Trusteeship Council – Art 86 to 91 (Organization of Territories)

Secretariat – Art 91 to 101 (Secretary general and other staffs in administer all
organs of UN)

Nuremberg Trials

Held for the purpose of bringing Nazi war criminals to justice, the Nuremberg trials
were a series of 13 trials carried out in Nuremberg, Germany, between 1945 and 1949. The
defendants, who included Nazi Party officials and high-ranking military officers along with
German industrialists, lawyers and doctors, were indicted on such charges as crimes
against peace and crimes against humanity. Nazi leader Adolf Hitler (1889-1945) committed
suicide and was never brought to trial. Although the legal justifications for the trials and their
procedural innovations were controversial at the time, the Nuremberg trials are now regarded
as a milestone toward the establishment of a permanent international court, and an important
precedent for dealing with later instances of genocide and other crimes against humanity.

International Criminal Court (ICC):-

The International Criminal Court (ICC), located in The Hague, is the court of last
resort for prosecution of genocide, war crimes, and crimes against humanity. Its founding
treaty, the Rome Statute, entered into force on July 1, 2002. Over the last decade the court
has made significant headway in putting international justice on the map. As of June 2015,
the ICC had 123 states parties, had opened investigations in eight countries, and had issued
three verdicts. But while the ICC is now responsible for international criminal accountability,
its daunting mandate and world-wide reach have made its flaws more visible. The court and

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its member countries face major challenges in meeting expanded expectations for the court in
its second decade.

Permanent Court of Arbitration

Established by treaty at the First Hague Peace Conference in 1899, the Permanent
Court of Arbitration is the oldest global institution for the settlement of international disputes.
The Court offers a wide range of services for the resolution of international disputes which
the parties concerned have expressly agreed to submit for resolution under its auspices.
Unlike the International Court of Justice, the Permanent Court of Arbitration has no sitting
judges: the parties themselves select the arbitrators. Another difference is that sessions of the
Permanent Court of Arbitration are held in private and are confidential. The Court also
provides arbitration in disputes between international organisations and between states and
international organisations.

International tribunals

The United Nations establishes international tribunals for the purpose of prosecuting
war criminals. The Netherlands is host country to a number of these tribunals, including the
International Criminal Tribunal for the former Yugoslavia (ICTY).

International and domestic law

The first international tribunals were set up in the 1990s to investigate crimes
committed by military personnel, politicians and civilians during armed conflict. The
tribunals report to the United Nations Security Council.

There are currently five tribunals in existence:

 The International Criminal Tribunal for the former Yugoslavia (ICTY);

 The International Criminal Tribunal for Rwanda (ICTR);
 The Special Court for Sierra Leone (SCSL);
 The Extraordinary Chambers in the Courts of Cambodia (ECCC);
 The Special Tribunal for Lebanon (STL).

These tribunals operate in accordance with the law of the country in question or a
combination of domestic and international law. Their judges are also drawn from the country
concerned and the international community.

The International Criminal Tribunal for the former Yugoslavia (ICTY)

The International Criminal Tribunal for the former Yugoslavia was established in
1993 by the United Nations Security Council. The ICTY prosecutes individuals suspected of
genocide, crimes against humanity, war crimes and violations of the Geneva Conventions
committed from 1991 onwards in the territory of the former Yugoslavia. The Netherlands is
host to the tribunal, which has its seat in The Hague.

The International Criminal Tribunal for Rwanda (ICTR)

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 The United Nations Security Council established the International Criminal Tribunal
for Rwanda in 1994. The ICTR prosecutes those who are responsible for genocide, crimes
against humanity and war crimes. Its seat is in Arusha, Tanzania. The Netherlands is a
member of the Friends of the ICTR and the Dutch embassy in Kigali is working to strengthen
of the rule of law in Rwanda.

The Special Court for Sierra Leone (SCSL)

The Special Court for Sierra Leone was established in 2002 on the basis of a treaty
between the United Nations and Sierra Leone. The SCSL prosecutes violations of
international humanitarian law and Sierra Leonean law. Along with a number of other
countries, the Netherlands is a member of the SCSL Management Committee, which advises
the court on administrative matters. The Netherlands hosted the trial of former Liberian
president Charles Taylor, which for security reasons was conducted at the International
Criminal Court.

Extraordinary Chambers in the Courts of Cambodia (ECCC)

The United Nations and Cambodia established the Extraordinary Chambers in the
Courts of Cambodia in 2006 to prosecute those responsible for crimes committed during the
rule of the Khmer Rouge regime (1975-1979).The tribunal has its seat in the Cambodian
capital Phnom Penh and applies both Cambodian and international law.

The Special Tribunal for Lebanon (STL)

The United Nations and Lebanon established the Special Tribunal for Lebanon in
2007 and it opened in 2009. The STL is prosecuting those suspected of carrying out the
attack on 14 February 2005 in which the former prime minister of Lebanon, RafiqHariri, was
killed. The tribunal applies Lebanese law on terrorism.The Netherlands hosts the STL and is
a member of the Management Committee, which is responsible for giving policy direction
and advice on non-judicial aspects of the Tribunal's work.

INTERVENTION

Define intervention. Under what circumstances intervention by one state in the

affairs of another state considered justified.

INTRODUCTION: -
Intervention in fact principally prohibited under the provisions of International
Law. According to International Law no state has the right to intervene in the affairs of
another state for the purpose of maintaining or altering the actual condition of thing. All
members shall retrain in their international relations from the threat or use of force, against
the territorial integrity or political independence of any state or in any other manner
inconsistent with the purposes of the United Nations. So in this way when any state
interferes in the internal and external affairs of other state, then as per International Law, it
becomes a matter of intervention.

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 DEFINITION OF INTERVENTION: -

In simple words intervention means to interfere directly or indirectly by one or more

states in the internal or external affairs of another state.

Prof.L.Oppenheim : “Intervention is dictatorial interference by a state in the affairs of

another state or the purpose of maintaining or altering the actual condition of
things. Interference pure and simple is no intervention.” Hans Kelson pointed out that,
“International Law does not prohibit intervention in all circumstances. He further says that
when one state intervenes in the affairs of another state through force, then as a reaction
against this violation International Law permits intervention.”

TYPES OF INTERVENTIONS:- It can be accessed from the above view of different

Jurists regarding types of intervention that there are so many types of
Interventions. However some of them are as under:-
1. Military interference: It is done with military force.2. Political Interference: is done by
giving threatening information.3. Dictatorial Interference: Is done in threatening tone.4.
Interference without right: It is done without any purpose & right. 5. Internal Interference: is
done in interfering in the internal affairs. 6. External Interference: It is also done in
interfering in external affairs. 7. Penal Intervention; 8. Subversive Intervention: is done by
another state through exciting the people against the state.9. Economic Intervention: is done
by creating obstacles in the trade.

BASIS OF INTERVENTION: - It is very much pertinent to mention here that what is the
basis of doing of intervention and what type of interventions are valid under UNO
Charter. However the following have been considered as the main basis of intervention:-

i. On the basis of self defence ii) On the basis of humanity iii) for application of treaty
rights iv) to stop illegal intervention v) to maintain balance of power vi) to protect individuals
and their property vii) collective intervention viii) to protect International Law ix) at the time
internal war.
All above basis of intervention have been recognised by the UNO except the followings :-
i) for application of treaty rights. ii) to stop illegal intervention iii) to maintain balance of
power IV) to protect individuals and their property. V) to protect International Law.

Despite all these the following types of intervention are in use and recognised:-

Intervention for self defence and self protection: - Self defence and self protection is
main traditional basis of intervention. The intervention for self defence is rather limited as
compared to that self protection. Oppenhein says that the use of power of intervention
should have been made when it becomes necessary for self protection.” A famous case, The
Caroline-1841: In this case Mr. Webster declared that the necessity of self defence should
be instant overwhelming and leaving no choice of means and no moment for
deliberation. Art. 51 of UN Charter provide that the right of intervention is still

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 available. Under this the state has the right to individual and collectively protection. But this
right is available only when: - i. There has been attack on any state. ii) No step has been taken
by the Security Council for international peace and security.

1. Intervention on the basis of humanity:- Every person on this earth has a right to live with
human dignity. The state cannot devoid her of this right. It the state behaves her citizens with
cruelty then it is violation of International Law of human rights. The action for intervention
by UNO can be taken only in case when the degree of violation of human rights is such that if
created danger for maintenance of International peace and security. The best example of
such intervention is by UNO in 1991 in Iraq for the protection of Kurds.

2. Collective Intervention:- In Chapter 7 of UNO Charter the Security Council is empowered

to take action of collective intervention. The collective intervention means just and legal base
of Modern times. UNO can intervene for maintenance of world peace and security and to stop
or avoid attack on the following conditions:-

i) When there is actual danger or possibility of danger for international peace and security.
ii) Actual attack has been made by the concerned state.
The use of such right was made by UNO in Korea in 1950, Kango in 1961 and Iraq in 1991.

3. Intervention in case of internal war:- When in any state there is possibilities of Internal
war, the intervention is considered as legal and just basis because there are strong
apprehensions of breach of International peace. Under this situation the Security Council can
decision to take collective action under Chapter 7 of UNO Charter. The action taken by
UNO in 1961 in Kango is the best example of intervention. This action was taken to stop
internal war.

CONCLUSION: -

It is absolutely fact that every state is entitled to manage willingly her own internal
and external affairs and does not like interfere of another state. Similarly it is also the duty of
the other state not to interfere in the internal and external affairs of any state. International
Law also like this. The main motto of the Security Council is maintaining peace in all the
member states.

Discuss the various compulsive means of settlement of International disputes. OR write

notes on Retorsion, Reprisal as compulsive means of settlement of International
disputes.

Introduction:-

The primary purpose of the United Nation is that there should be complete peace and
security in all the members of UNO. First of all to seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own

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 choice. In the other meaning when it deems necessary call upon the parties to settle their
dispute by such mean which shall be convenient to them. Compulsive or coercive means of
settlement of International disputes are as under:-

1. Retorsion:- Retorsion is the technical term for retaliation. If any state behaves in unequal or
in courteous way with the other State, then the other state under the International Law gets
the right of retorsion. In this way the meaning of Retorsion is retaliation. But in connection
with Retorsion the State can initiate only that proceeding which is permitted by the
International Law. For example in retorsion the diplomatice channels can be terminated and
immunities and privileges of the diplomat can be withdrawn together with the existing
economic subsidies. In the past Pakistan declared the diplomat of Iraq as persona non grata
and that diplomat had to leave Pakistan. Pakistan took this action because in the Embassy of
Iraq a lot of arms and ammunition was stored.

2. Reprisal:- If the problem is not solved by Retorsion the States have the right under the
International Law to resort to Reprisal that is, in Retaliation the state can initiate such a
proceeding that violator of the problem may be solved. The reprisal can be resorted against a
State when it has indulged in some illegal or inappropriate activity. For example Israel has
resorted to Reprisal many times against Lebnon and has bombarded those regions of Lebnon
where from Arab Terrorists attacked on the territories of Israel. The members of UN cannot
indulge in Reprisals of such a type which endangers the international peace and security. It is
commonly accepted that Reprisal becomes justified and legal when the other country has
committed an international tort or violated the norms of International Law. In the provocative
action and Reprisal there must be adequate proportion i.e. in proportion to the violation, the
damage should be caused. The Reprisal is valid only when demand for reparation was made
and this was not fulfilled.

3. Embargo:- Embargo is also a kind of Reprisal. If the ship belongs to a State which has
committed international tort or has committed some other international wrong and is
available in the territorial waters of the State against which tort or wrong has been committed
then such vessels can be restrained from travelling through that area as a matter of right by
the other State.

4. Pacific Blockade: - By this method the outer boundary of a State is blocked peacefully. It is
resorted during the peace time against a State. The coming and going ship is stopped. By
blockade of Ports of a country compelled that state to solve the problem.

5. Intervention: - Under article 2(4) of the U.N. Charter, the principle of non-intervention in
the internal affairs of a State has been propounded. But according to Kelson, he has asserted
that International Law does not prohibit intervention in all circumstances, meaning thereby
that in certain circumstances intervention is valid and legal.

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 14. Explain the purpose and principles of United Nation. How for United Nation has
been successful in achieving its object?

INTRODUCTION:-

In the 20th. Century two world wars of highly destructive nature were fought. After
the First World War the league of Nation was established. The main objects of the League of
Nations were established and maintain world peace and security. The League of Nations
failed in its mission. The large scale destructive effects of the second World War forced the
Nations of the world once again to establish some institution of International Statute which
may solve peacefully the disputes amongst them and establish peace and security world over.
On 26th.anuary, 1945 at Sanfransisco different Nations buttressed the establishment of
U.N.O. and after it’s the membership of the UNO increased substantially and now it stands at
192.

PURPOSES OF UNO: - The purposes and objects for which the UNO has been established
are laid down in Article 1 of the Charter:-

1. To maintain international peace and security:- In the preamble of the charter it is resolved
to save the succeeding generations from the scourge of war and be united to achieve these
ends. To achieve the target the Organisation shall prevent or remove threat to the peace,
breach of peace and acts of aggression by taking effective and collective measures. The
international problems were to be solved by peaceful means under the norms provided in the
International Law and canons of justice.

2. To develop friendly relations among nations:- The friendship should be prosper on the
basis of respect for the norms of equal rights and equality in self determination of people. So
this thought which developed friendly relations & universal peace among the nations was set-
up by UNO.

3. For removal of social, economic, cultural and human problems soliciting of international
co-operation:- In the preamble of the charter of UNO it has been resolved to energize the
International machinery for the development of economic and social status of the people. A
belief is to b developed in promoting and encouraging the respect for human rights and
fundamental freedom for all without distinction to race, sex, language or religion.

4. To make the UN an International Centre for harmonization:- The general purpose of

UNO has to be made a centre for co-ordination of activities executed by different nations in
this regards to avoid clashes in choosing priority, the UNO is to harmonise the different
activities of different nations to achieve the main purpose.

PRINCIPLES OF UNO:- There are following principles of UNO:-

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1. Principle of sovereign equality: - Principle of Sovereign Equality means that all the
members of UNO are equal in the eye of International Law. No discrimination in dealings
with them is permitted.
2. Principle of honouring of obligations:- Being member of UNO, they enjoy certain rights
and benefits. Members are required to fulfil in good faith the obligations assured by them in
accordance with the Charter of UNO.
3. All nations shall settle their disputes through the principals of peaceful settlement:-All
the international disputes are to be settled by peaceful means with the results that peace and
security and justice of any region may not endanger.
4. Principle of non-use of force:-All members of UNO should refrain from the use of force or
threat of force against the territorial integrity or political independence of any State.
5. Principle of assistance to the UNO:-It is the essential duty of every members of UNO to
support and assist to take action against the State who is not following the UNO charter.
6. Principle for non-member States: - As provided in Art.2 of UNO charter that the States
which are not members of UN, act in accordance with the principles of UN for maintaining
international peace and security.
7. Principle of non-interference in domestic affairs of a state: - Art.2 (7) provides that the
UN shall not intervene in the matters which are essentially within the domestic jurisdiction of
any State or to compel any members to submit such matters settlement.
If all the above principles are faithfully followed by all the members of UNO, than
there will be no doubt at all that this path will lead to World Peace and the sayings of Kelson
that UNO is World Government will remain in existence.

HOW FOR U.N. HAS BEEN SUCCESSFUL IN ACHIEVING ITS OBJECTS

The United Nation has performed important functions in the social, economic and
cultural fields as well as in the fields of human rights. Besides this Uniting for Peace
Resolution. There has been constant development of the powers and functions of UN. United
Nations has become the symbol of democratisation in the world.

Public opinion is an important factor which comes into play in the new international
law. The Gulf War-1991 and the breaking up of the Soviet Union are likely to bring about the
revolutionary changes in the U.N. in the present Uni-polar world (United State as the super
power), majority of the member-State are now demanding democratization of the world body.
Un-doubtly the United Nations has achieved its objects in maintaining the peace, security and
canons of justice at the International Level.

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 IMPORTANT CASE LAWS

CASE NAME- The Charming Betsy case

PARTIES- Murray Vs. The Charming Betsey

YEAR- 1804

PRINCIPLE-

Charming Betsy canon is a principle of interpretation applied in interpreting national

statutes, and general acts of congress. According to this canon, national statutes should be
interpreted in such a way that the interpretation does not conflict with international laws. This
principle evolved from the case.

Another principle of this case is in the treaty or custom the state have to maintain
though it is clarified or not. The states have to bind to maintain this kind of treaty or custom.
Even if the Domestic Law as inter-related to the International Law for the treaty rules or
custom.

FACT OF THE CASE-

Once a US national lived in the island named sent Thor conquered by the Denmark. He was
the owner of a ship. In 1800 by the Non Intercourse Act his ship was forfeited. By t his there
was no business transitive allowed with France. There was the allegation brought against him
for breaching this Act. There were a number of reasons had been produce that so far he had
been living in abroad.

ISSUE-

 Whether the U.S authority can forfeit her national’s property solely for staying an
abroad or not.
 Whether U.S. Navy had violated the Non-Intercourse Act of 1800.

DECISION-

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 In the dispute the chief justice Marshall to do the judgment. Discussed and interpreted
the international country law, conventional law and the effectiveness over the USA of its.
According to his decisions, that any law of USA can’t be operated in opposition direction of
the international norm and International Laws.

REASONING

 There is lots of reasoning he produced in giving of its decision. He said the customary
law has been found into US law with effectiveness. That is why the congress never can
go in the opposite.
 Over the dispute, the allegation which was brought really by the national control of the
USA. The crate can do no matter what it seems to better for the state. As it was the Act
passed in the congress which was not to be opposing of the International Law.
 The court found that there was sue connection exist to go to the step for the discharge
the argument.

CASE NAME- The Barcelona Traction Case

PARTY– Belgium v. Spain

YEAR– 1962–1970

PRINCIPLE:

Principle of protection of company by company’s national state company incorporate

in third party.

FACT OF THE CASE:

The Barcelona Traction, Light and Power Co. Ltd., (hereinafter called Barcelona
Traction) were a Canadian joint stock company formed in Toronto (Canada) in 1911. The
greater part of its share capital belonged to Belgian nationals. Barcelona Traction also owned
the shares of several other companies, some of which were operating in Spain under Spanish
law.

Barcelona Traction, Light, and Power Company, Ltd. (Barcelona Traction)

manufactured and supplied electricity in Spain. Although doing business in Spain, it was
incorporated in Canada and maintained its headquarters in Toronto. The company issued
corporate bonds to investors outside of Spain. During the Spanish Civil War (1936–1939),
the government of Spain refused to allow Barcelona Traction to transfer currency from Spain
to pay interest to the bondholders. The interest payments were never resumed.

In 1948, several Spaniards purchased some of the bonds and then brought suit in a
Spanish court asking it to declare Barcelona Traction bankrupt because it had failed to pay
the interest on the bonds. The court did so and, following several motions and appeals, all of
the assets in Spain belonging to the company were finally sold by public auction in 1952. The
proceeds from the sale were distributed to creditors and only a very small sum was to be paid
to shareholders.

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 The shareholders then sought the assistance of their home states in seeking to obtain a
larger settlement. Canada, among other states, complained to Spain of denials ofjustice and of
the violation of certain treaties it alleged were applicable. Canada, however, eventually
agreed that Spain had acted properly in denying Barcelona Traction the right to transfer
currency abroad and later in declaring the company bankrupt.

Belgium took an interest in the matter because Belgians owned 88 percent of the
shares in Barcelona Traction. It disagreed that Spain had acted properly and after Spain
became a member of the United Nations in 1955, Belgium filed a complaint before the
International Court of Justice in 1958. The proceedings were suspended and then
discontinued while representatives of the private interests concerned carried on negotiations.
When the negotiations failed, Belgium submitted a new application to the Court in 1962.

Spain promptly objected that Belgium could not sponsor Barcelona Traction’s or its
shareholders’ complaints because Barcelona Traction was a Canadian company.

ISSUE:

Belgium claimed that the Spanish authorities acted contrary to international law
against Barcelona Traction, which resulted in damage to the company and its shareholders.
Accordingly, Spain was under an obligation to restore in full to Barcelona Traction its
property, rights and interests, and ensure compensation for all other losses. Alternatively,
Spain should pay Belgium compensation equivalent to the value of the property, rights and
interests of Barcelona Traction. As another alternative, Spain should at least pay to Belgium
compensation equivalent to the amount of shares of the capital of Barcelona Traction owned
by Belgian nationals, together with the amount of the sums standing due on 12 February 1948
in favor of Belgian nationals. Before the Court could proceed with the matter on the basis of
the memorial filed by Belgium and the preliminary objection raised by Spain, Belgium
informed the Court, in accordance with Article 89 of the Rules of the Court that it wished to
withdraw from the case. Later Belgium and Spain engaged in negotiations, but as these did
not result in any agreement, Belgium presented a new application in 1992 for the Court to
hear the case.

DECISION:

The international court of justice rejected the claim of Belgium by fifteen one votes
holding that Belgian Govt. had no “locus standi” in this case to seek reparation.

REASONING:

The Belgian government lacked the standing to exercise diplomatic protection of

Belgian shareholders in a Canadian company with respect to measures taken against that
company in Spain. The court ruled on the side of the Spanish, holding that only the
nationality of the corporation (the Canadians) can sue. The case is important as it
demonstrates how the concept of diplomatic protection under international law can apply
equally to corporations as to individuals.

Page 98 of 137
CASE NAME- Lotus case

PARTY-France and Turkey

YEAR- 1927

PRINCIPLE:

Criminal jurisdiction and flag State jurisdiction on the high seas.

FACT OF THE CASE:

On 2 August 1926, a collision occurred on the high seas between the French mail
steamer Lotus proceeding to Constantinople, and the Turkish collier, “Boz-Kourt”. The “Boz-
Kourt” sank and eight Turkish nationals perished. On 3 August, the Lotus arrived in
Constantinople; Where the Turkish authorities proceeded to hold an enquiry into the
collision. They instituted joint criminal proceedings in accordance with the Turkish law
against the captain of the “Boz-Kourt”, and the officer on watch on board the Lotus at the
time of the collision, Lieutenant Demons, a French citizen, on a charge of manslaughter.

The case was first heard on 28 August 1926 before the Criminal Court of Istanbul.
Lieutenant Demons’ objection to the jurisdiction of the Court was overruled. On 15
September, the Criminal Court of Istanbul sentenced Demons to a short term of imprisonment
and fine.The proceedings had been instituted in pursuance of Turkish legislation. According
to the French Government, the Criminal Court claimed jurisdiction under Article 6 of the
Turkish Penal Code.20 the French Government protested against the arrest of Lieutenant
Demons and against the assumption of jurisdiction by the Turkish Court. By a special
agreement, signed at Geneva on 12 October 1926 between the French and Turkish
Governments and filed with the Registry of the Court in accordance with article 40 of the
Statute and article 35 of the Rules of the Court, the latter submitted to the Permanent Court of
International Justice the question of jurisdiction that had arisen between them as a result of
the collision.

ISSUE:

Criminal jurisdiction and flag State jurisdiction on the high seas. Questions before the
Court Has Turkey, contrary to article 15 of the Convention of Lausanne of 24 July 192321 on
conditions of residence, business and jurisdiction, acted in conflict with the principles of
international law.

And, if so, which principles, by instituting joint criminal proceedings in pursuance of

Turkish law against Lieutenant Demons, in consequence of the loss of the “Boz-Kourt”
having involved the death of eight Turkish sailors and passengers?

Should the reply be in the affirmative, is any pecuniary reparation due to Lieutenant
Demons according to the principles of international law and, if so, what should it be?

DECISION:

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Judgment was rendered on 7 September 1927. By the President’s casting vote – the votes
being equally divided – the Court held that

 Turkey, by instituting criminal proceedings against Lieutenant Demons, had not acted in
conflict with the principles of international law;
 Consequently, there was no occasion to give judgment on the question of the pecuniary
reparation.

REASONING:

The Court first established that the question submitted to it was whether the principles
of international law prevented Turkey from instituting criminal proceedings against
Lieutenant Demons under Turkish law. The Court found that the French contention that
Turkey, in order to have jurisdiction, should be able to point to some title of jurisdiction
recognized by international law was opposed to generally accepted international law, as
referred to by Article 15. It stated that the first restriction imposed by international law upon
a State was that it could not exercise its power in any form in the territory of another State.
However, this did not imply that international law prohibits a State from exercising
jurisdiction in its own territory in respect of any case that relates to acts that have taken place
abroad and in which it cannot rely on some permissive rule of international law. The Court
found that Turkish jurisdiction was justifiable not because of the nationality of the victims but
because the effects of the offence were produced on a Turkish ship, and consequently, in a
place “assimilated to Turkish territory in which the application of Turkish criminal law
cannot be challenged”. Once it was admitted that the effects of the offence were produced on
the Turkish vessel, it became impossible to hold that there was a rule of international law that
prohibited Turkey from prosecuting Lieutenant Demons simply because the author of the
offence was on board the French ship.

The Court then addressed the last argument advanced by the French Government that
according to international law criminal proceedings arising from collision cases are within the
exclusive jurisdiction of the State whose flag is flown. France claimed that questions of
jurisdiction in collision cases were rarely encountered in the practice of criminal courts.
Therefore, prosecutions only occurred before the courts of the State whose flag is flown,
which proved a tacit adherence by States to the rule of positive international law barring
prosecutions by other States. The Court rejected this argument. Even if the facts alleged were
true, they would merely show that States had often abstained from instituting criminal
proceedings, not that they felt obligated to do so.

CASE NAME- Anglo-Norwegian Fisheries Case

PARTY-United Kingdom v. Norway, ICJ

YEAR- 1951

PRINCIPLE:

Extension by costal state of fisheries jurisdiction case, fishery zone, preferential rights
and concurrent rights of other stats and conservation measures.

Page 100 of 137

FACT OF THE CASE:

Since 1911 British trawlers had been seized and condemned for violating measures
taken by the Parties in order to avoid further legal differences; and the Norwegian
Government specifying the limits within which fishing was prohibited to foreigners. In 1935,
a Decree was adopted establishing the lines of delimitation of the Norwegian fisheries zone.

On 28 September 1949, the Government of the United Kingdom filed with the
Registry of the ICJ an application instituting proceedings against Norway. The subject of the
proceedings the Parties in order to avoid further legal differences; and was the validity, under
international law, of the lines of delimitation of the Norwegian fisheries zone as set forth in a
Decree of 12 July 1935.

The application referred to the declarations by which the United Kingdom and
Norway had accepted the compulsory jurisdiction of the ICJ in accordance with Article 36 (2)
of its Statute.

ISSUE-

To declare the principles of international law applicable in defining the baselines by

reference to which the Norwegian Government was entitled to delimit a fisheries zone,
extending seaward to 4 nautical miles from those lines and exclusively reserved for its own
nationals; and to define the said baselines in the light of the arguments of the Parties in order
to avoid further legal differences.

To award damages to the Government of the United Kingdom in respect of all the
written reply and later in the oral argument by the United Kingdom and, consequently, no
interferences by the Norwegian authorities with British fishing vessels outside the fisheries
zone, which, in accordance with the ICJ’s decision, the Norwegian Government may be
entitled to reserve for its nationals.

DECISION:

The Fisheries Case was brought before the Court by the United Kingdom of Great;
Britain and Northern Ireland against Norway. By a Decree of July 12th, 1935, the Norwegian
Government had, in the northern part of the country (north of the Arctic Circle) delimited the
zone in which the fisheries were reserved to its own nationals.

‘Me United Kingdom asked the Court to state whether this delimitation was or was
not contrary to international law. In, its Judgment the Court found that neither the method
employed for the delimitation by the Decree, nor the lines themselves fixed by the said
I)decree, are contrary to international law; the first finding is adopted by ten votes to two, and
the second by eight votes to four. Three Judges-M.M. Alvalez, Hackworth and Hsu Mo
appended to the Judgment; 21 declaration or an individual opinion stating the particular
reasons for which they reached their conclusions; two other Judges- Sir Arnold McNair and
Mr. J.E. Read-appended to the Judgment statements Of their dissenting Opinions.

Page 101 of 137

REASONING:

 It was agreed from the outset by both Parties and by the Court that Norway had the right
to claim a 4-mile belt of territorial sea, that the fjords and sands along the coastline,
which have the character of a bay or of legal straits, should be considered Norwegian for
historical reasons, and that the territorial sea should be measured from the line of the
low-water mark.
 The Court found itself obliged to decide whether the relevant low-water mark was that
of the mainland or of the skjaergaard, and concluded that it was the outer line of the
skjaergaard that must be taken into account in delimiting the belt of Norwegian
territorial waters.
 The Court then considered the three methods that had been contemplated to effect the
application of the low-water mark. The Court rejected the method of the
“tracéparallèle”, which” consists of drawing the outer limit of the belt of territorial
waters by following the coast in all its sinuosities”, as unsuitable for so rugged a coast.
Furthermore, that method was abandoned in the written reply and later in the oral
argument by the United Kingdom and, consequently, no longer relevant to the case.
 The Court also declined to apply the “courbetangente” (the “arcs of circles” method)
inasmuch as it was concededly not obligatory by law. Thus, the instant case required the
application of a third delimitation method according to which the belt of the territorial
waters must follow the general direction of the coast. Such a method consisted of
selecting appropriate points on the low-water mark and drawing straight lines between
them. The Court found that the method had already been applied by a number of States
without giving rise to any protests by other States.
 However, the Court held that the delimitation of sea areas had always had an
international aspect and could not be dependent merely upon the will of the coastal State
as expressed in its municipal law. Although necessarily a unilateral act, the validity of
delimitation of sea areas with regard to other States depended upon international law.
The Court considered that in drawing straight baselines, the coastal State had to follow
the general direction of the coast.

CASE NAME- The Continental Shelf CASE

PARTY- Libyan Arab Jamahiriya vs. Malta

YEAR-1985

PRINCIPLE:

It is a course axiomatic that the material of customary international law is to be

looked for primary in the actual practice and opinion juries of state even though multilateral
conventions may have an important role to play in defining and recording rules , deriving
from custom or indeed in developing them.

FACT OF THE CASE:

On 23 May 1976, a Special Agreement was signed between the Socialist People’s
Libyan Arab Jamahiriya and the Republic of Malta providing for the submission to the Court
of a dispute concerning the delimitation of the continental shelf between the two States.

Page 102 of 137

 The Parties were broadly in agreement as to the sources of the law applicable to the
case, but disagreed as to the way in which the Court was to indicate the practical application
of those principles and rules. Malta wished the Court to draw the delimitation line, while
Libya wanted it only to pronounce itself on the applicable principles and rules. Having
examined the intention of the Parties to the Special Agreement, from which its jurisdiction
derived, the Court considered that it was not barred by the terms of the Special Agreement
from indicating a delimitation line. The delimitation contemplated by the Special Agreement
related only to the areas of continental shelf that appertained to the Parties, to the exclusion of
areas which might appertain to a third State. Although the Parties had in effect invited the
Court not to limit its Judgment to the area in which theirs were the sole competing claims, the
Court did not consider itself free to do so, especially in view of the interest shown in the
proceedings by Italy, which in 1984 order to achieve an equitable result. Submitted an
application for permission to intervene under article 62 of the Statute. The Court had rejected
this application.

ISSUE-

Questions before the Court

What principles and rules of international law are applicable to the delimitation of the
area of the continental shelf that appertains to the Republic of Malta and the area of the
continental shelf that appertains to the Libyan Arab Jamahiriya?

How in practice can the two Parties, in this particular case, apply such principles and
order to achieve an equitable result. Rules in order that they may, without difficulty, delimit
the areas concerned by agreement?

DECESION-

The Judgment was rendered on 3 June 1985. By fourteen votes to three, the Court
held that “with reference to the areas of continental shelf between the coasts of the Parties
within the low-water mark of the relevant coast of Libya, that initial line being then limits
defined in the present Judgment, namely the meridian 13º 50′ E and the meridian 15º 10′ E.

The principles and rules of international law applicable for the delimitation, to be
effected by agreement in implementation of the present Judgment, of the areas of continental
shelf appertaining to the Socialist People’s Libyan Arab Jamahiriya and to the Republic of
Malta respectively are as follows:

 The delimitation is to be effected in accordance with equitable principles and taking

account of all relevant circumstances, so as to arrive at an equitable result;
 The area of continental shelf to be found to appertain to either Party not extending
more than 200 miles from the coast of the Party concerned, no criterion for
delimitation of shelf areas can be derived from the principles of natural prolongation
in the physical sense.

REASONING:

Page 103 of 137

The Court found that, as to the law applicable to the delimitation of areas of shelf between
neighboring States, which is governed by article 83 of the 1982 Convention, the Convention
sets a goal to be pursued, namely “to achieve an equitable solution” but is silent as to the
method to achieve it.

In the view of the Court, the principles and rules underlying the régime of the exclusive
economic zone could not be left out of consideration in the present case, the two concepts
continental shelf and exclusive economic zone – being linked together in modern law.

The conclusion reached by the Court was that there was no evident disproportion in the areas
of shelf attributed to each of the Parties respectively such that it could be said that the
requirements of the test of proportionality as an aspect of equity were not satisfied.

CASE NAME- The Reparation Case

PARTIES– United Nation vs. Israel

YEAR-1949

PRINCIPLE:

United Nations Organization is an international institution and legal person under

international law. Therefore it is a subject of international law and capable of possessing
rights and duties.

FACT OF THE CASE:

In 1947 when Palestine spited in to two countries, Israel emerged as a new country.
At that time the UN troops were engaged in the border area of Israel and Palestine of
monitoring and peacekeeping and to mediate in the conflict between Arabs and Jews. Mr.
Count Bernadette, a Dutch national, was the chief UN truce negotiator for the area. On
September 17,1948 when he as in the area of Jerusalem, the area which was under the
occupation of Israel, was murdered.

The UN considered that Israel was negligent in duty and was fail to punish the
murderers. Consequently the UN decided to make a claim for compensation on behalf of its
employee under international law. Does UN capable at all to claim compensation or not the
United Nations General Assembly sought advice of ICJ in this regard.

ISSUE:

The issues of this case were as follows:

 Whether The United Nations as an organization can claim compensation and damages
for the person appointed under its service.

Page 104 of 137

  Whether UN as international organization has every legal responsibility so that it can be
sued and can sue by its own name.
 Whether the UN had the capability to bring an international calm for compensation
against a non member state.

DECESION:

The ICJ held that UN as an international institution and legal person, it enjoys all the
qualities privileges and claim reparation not only in respect of damages caused to itself but
also in respect of damage suffered by the victim persons. Thus the Israel is liable to pay
compensation.

REASONING:

The court observed that United Nation Organization is a political body charged with
political tasks of important character and covering a wide field, namely the maintenance of
international peace and security, achieve international co operation in the pasture of
economic social cultural rights. It is a present the supreme type of international organization
and it could not carry out the intention of its founders if it was devoid as international
character. The court has come to the conclusion that this organization is an international
person and it can be assumed that the organization has the capacity to bring a claim on an
international plane, to negotiation, to conclude a special agreement and to prosecute a claim
before an international tribunal. The organization has the capacity to claim reparation of
damage by basing its clam upon a breach of obligation due to itself and this will bring about
settlement.

CASE NAME- Prof.Nurul Islam and Others Govt. of Bangladesh and others Case

YEAR-1999

PRINCIPLE:

No state can deny the international responsibilities; avoid this responsibilities not
defense as the domestic or state. But the state law has to relation the International Law.

FACT OF THE CASE-

IN 1999 the most popular cigarette producer British American Tobacco (BD) Ltd. To
manufacturer of their brand “Gold Leaf”. The “Voyage of Discovery” has to invite to
advertise the product. The new generation of our country addicted for the purpose of this kind
of advertisement so that Prof.Nurul Islam issued a writ petition against that kind of
advertisement in the High court Division. Not only that advertisement, he raised in report of
WHO (World Health Organization) that the effect of the smoking and the obstruct on the
Tobacco Products on the publicity.

Page 105 of 137

 The Tobacco corporation show that, In Bangladesh control in the marketing of
tobacco products for 1988 “Tobacco Originated Goods Marketing (Regulation) Law. In this
law not banned the advertisement but when the advertise this kind of product it is necessary
to say that can use alertness of word which is obey on that company. The lawyer of the
Company argued that, through in 1990 the ordinance no 16 to canceled the tobacco products
advertisement, although the ordinance is not raised in the Parliament and to lost the power of
Law. So now in Bangladesh there is no law existence to obstruct the advertisement of
Tobacco Products.

ISSUE:

Whether cancellation of Voyage of Discovery to come though there is no law

existence.

DECESION:

The decision of the court that the obstruct to come the “Voyage of Discovery” in
Bangladesh.

REASONING-

Bangladesh is bound to follow the international law accordance with article 25(1) of
the Bangladesh constitution.

CASE NAME- Chorzow Factory Case

PARTIES– Germany vs. Poland

YEAR-1928 PCIJ

PRINCIPLE:

It is a general principle of international law that any breach of an engagement

involves an obligation to make reparation.

FACT OF THE CASE:

There was an agreement between Germany and Poland and that bilateral treaty was
known as the Geneva Upper Silesia convention 1922. it had been provided in that treaty that
on transfer of sovereignty of certain territories from Germany to Poland after the 1st world
war, existing proprietary right were to be maintained except that the Polish Government was
granted a right of expropriation under certain condition with respects of all property
belonging to German nationals in Upper Silesia. The present dispute arose when Poland
seized to companies there in breach of its international obligation under the Upper Silesia
convention of 1922. The Germany demanded compensation from the Poland.

ISSUE:

Page 106 of 137

 The issues of the case were as follows:

 Whether the convention of 1922 creates any obligation on the part of the Poland.
 Where seizure of the 2 companies by the Polish Government is contrary to its
international obligation, whether Poland is bound to make reparation to Germany.
 If there appears any breach of international obligation, whether Poland is bounty to
make reparation to Germany.

DECISION:

The reparation of wrong may consist in an indemnity corresponding to the damage

which is contrary of International Law. Right or interests of an individual the violation of
which rights cause damages are always in a different plain to rights belonging to a state,
which rights may also be infringed by the same act.

REASONING:

In deciding the case the court considered the following the reasons to be applied:

 The action of Poland was not expropriation in its real sense, it was rather a seizure of
property, right and interest which could not be expropriated even against compensation,
save under the special conditions fixed by Art. 7 of the Upper Silesia convention of
1922. in doing so, therefore, Poland acted contrary to its obligations.
 It is general principle of international law and even a general concept of law that a
breach of an agreement involves a duty to make reparation.
 Reparation is the expendable complement of a failure to apply a convention and there is
no necessity for this to be stated in the convention itself. This case is one of an unlawful
expropriation and in such cases expropriating sates must in addition to paying the
compensation due in respect of lawful expropriation, pay also damages for any loss
continued by the injured party.

CASE NAME- Island of Palmas Case

PARTIES- Netherlands Vs USA

YEAR-1928

PRINCIPLE:

 The principle which subjects the act creative of a right to the law in force at the time the
right arises, demands that the existence of the right, in other words its continued
manifestation, shall follow the conditions required by the evolution of the law
 The territory if occupied it is not enough to the state who occupied the territory which is
belong upon the state. The state should have the authoritative power of the territory he
relationship and sovereignty with the inter-connection between the occupied territory.

FACT OF THE CASE:

Page 107 of 137

 The Island of Palmas Case dealing with island disputes. It involved a Sparsely
inhabited island twenty nautical miles off the southwest coast of the Philippines. The United
States and the Netherlands contested ownership of the island. The United States claimed the
Island of Palmas based on two legal theories. First, Spain’s earlier “discovery” of the island,
which had given Spain “original title,” passed to the United States when the United States
defeated Spain in the Spanish-American War and the United States took possession of the
Philippines. Second, the United States claimed Palmas Island due to the contiguity of the
island to the Philippines. When Spain first discovered the Island of Palmas in the sixteenth
century, international law arguably granted absolute title to islands that were terra nullius to
the discoverer. The United States, therefore, argued that this law, the law at the time of
discovery, should apply and international law at that time granted title to terra nullius to its
discoverer. On the other hand, the Netherlands claimed the island because the Netherlands
had had contact with the region, and they contended that the island was a “tributary of native
princes, [who were] vassals of the Netherlands Government.” Moreover, regarding the
applicable law, the Netherlands countered the United States’ argument of the United States
regarding applicable law by stating that, “[t]he changed conceptions of law developing in
later times cannot be ignored in judging the continued legal value of relations which, instead
of being consummated and terminated at one single moment, are of a permanent character.”

ISSUE:

 Whether Netherlands had any legal rights or not.

 Whether the Island was terra nu the territory if occupied it is not enough to the state who
occupied the territory which is belong upon the state. The state should have the
authoritative power of the territory he relationship and sovereignty with the inter-
connection between the occupied territory terra nullius or not.

DECESION:

It was held that by the ICJ, that the arbitrator then held that though the U.S. had
inchoate title to the Island of Palmas, based on its ascension to possession of the Philippines
through earlier Spanish discovery, the Netherlands had actual title to the island because it had
peacefully and continuously displayed authority over the island.

Next, although the Island of Palmas was much closer to the Philippines than
Indonesia, the court rejected the United States’ “contiguity” claim, concluding that
international law did not support such a principle. Consequently, the rule in international law
stated that discovery, without any further display of authority or occupation of an island, did
not demonstrate ownership where another State exercised actual authority over the same
islands.

REASONING

The territorial sovereignty was absence from the sides of the continues effectiveness
sovereignty over the land by Netherlands. So mere discovered is not okay to be territorial
sovereignty. Spain did not fulfill the requirement of having the land through terra nullius.

CASE NAME- Clipperton Island Arbitration Case

Page 108 of 137

PARTIES-France Vs México, 26AJIL 390

YEAR- 1932

PRINCIPLE:

 A territory, by virtue of the fact that it was completely uninhabited is, from the first
moment when the occupying state makes its appearance there, at the absolute and
undisputed disposition of that state, from that moment the taking of possession must be
considered as accomplished, and the occupation is thereby completed.
 The occupation on Territory not on the occupied the land or territory it is insufficient but
also necessary to effective on that occupation of the territory.

FACT OF THE CASE:

The Clipperton Island Case involved a dispute between Mexico and France over a
small, uninhabited island 600 miles southwest of Mexico. Mexico claimed the island based
on Spanish discovery several hundred years earlier. France argued that it obtained title in
November 1858 after a French naval ship discovered the island, and its commanding officer
later published France’s claim in a newspaper. After “discovering” Clipperton Island and
publishing notice of the discovery in a Hawaii’ newspaper, France took no further action to
assert her sovereignty until 1897, thirty-nine years blather, when a French naval ship found
three Americans collecting guano on the island. France protested to the United States, which
responded that it made no claim to the island. A month later, Mexico, believing that
Clipperton Island was under its possession, and having heard about the same guano
exploration, dispatched a naval ship to investigate. The ship found the same three Americans
on the island and Mexican soldiers raised the Mexican flag. France protested Mexico’s
action, and both sides engaged in an acrimonious debate over ownership of the island, until
both parties agreed to have their dispute arbitrated by Emperor Victor Emmanuel III of Italy
in 1909. Victor Emmanuel, however, would not issue his ruling on the case for twenty-two
years, until 1931. The Emperor awarded Clipperton Island to France, stating that “the proof
of an historic right of Mexico’s is not supported by any manifestation of her sovereignty over
the island, a sovereignty never exercised until the expedition of 1897.

ISSUE:

 Whether there is any authoritative power over the territory in the Spain.
 Whether France or Mexico had title to the island.
 Whether Mexico had any title belongs over the island.
 Whether it provides a lower occupation requirement to prove actual title where the
territory claimed is an uninhabited island.

DECESION:

The discovery of the island by the Spanish authority was not sufficiently proved, nor
was the title of Spain to the territory. Meanwhile, it was clear that France had not at any point
abandoned her claim to the island. In the circumstances, sovereignty over the islands
belonged to France.

Page 109 of 137

REASONING-

In 17th November 1858 Clipperton Island was legitimately acquired by French. France
did not lose subsequently right by dereliction. France never had the animus of abandoning the
island and it had not exercised its authority their positive manner. From 17th November 1858,
for this reason France belongs the sovereignty over the Clipperton Island.

CASE NAME- Eastern Greenland Case, PCIJ

PARTIES- Denmark vs. Norway

YEAR-1933

PRINCIPLE:

To established effective occupation two elements are must needed-

 Land occupation for exercising sovereignty

 Effective expression for the will.

FACT OF THE CASE:

The sovereignty of Denmark over Greenland was established upon 1721. Actually ,
the conflict was began from 10th July 1931, when Norway declared through Royal
Proclamation that cast terra- nullius was under their control and they raised the flag of
Norway. But Denmark considered the island as their own as after World War 1. The allied
power countries agreed that the actual control of the country should be under Denmark.
Denmark again claims that there here ruling the area for a long time and it also shows its
authority. So Denmark took the dispute to PCIJ.

ISSUE:

 Where the country practically occupied or not

 Where the country has any legal titled

DECESION:

The court agreed that the actual control of the country and all evidence is sufficient
that is the land should be under Denmark.

REASONING:

To established effective occurred two elements are must be needed-

 Land occupation for exercising sovereignty and

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  Effective expression for the will.

CASE NAME- The Temple of PreahVihear Case, ICJ

PARTIES- Cambodia vs. Thailand

YEAR-1967

PRINCIPLE:

 The international law elements of the case are territorial sovereignty, and the power of
treaties.
 The Court weighed heavily the historical context of the creation of Annex I in making
its judgment. It is clear that the Court found it important to first clarify the frontier lines
between Cambodia and Thailand before deciding the issue of sovereignty. Because one
could not be correctly judged without the other, the principles of subject-matter
jurisdiction, temporal jurisdiction and territorial jurisdiction are all important in this
case.
 The power of treaties held Thailand accountable for the border dispute and allowed
Cambodia to expel Thai forces from the Temple.

FACT OF THE CASE:

On15June1962,the International Court of Justice (ICJ) pronounced judgment on a

dispute between Cambodia, formerly acolony of France,andThailand,formerly called
Siam,aneighboringkingdom which had never been formally colonized.Thedisputeterritorial
sovereignty over the area of an ancient Brahmanic temple named PreahVihear . The Temple
is perched high on a spur of the Dangrek mountain chain which roughly forms the boundary
between both countries. North of the Dangrek lies the Khorat Plateau of Northeast Thailand,
while to the south the Temple affords a magnificent view of the forested Cambodian plain
below. The judgment was peculiar in that it relied upon absence to startling effect. Applying
the principle qui tacet con-sentirevidetursiloquidebussed ac potuisset (Judgment,) [He who
keeps silent is held to consent if he must and can speak—ICJ held that Thailand’s failure to
protest the inaccuracy of a map purporting to reject the watershed line between the two states,
and thus by the Treaty of 1904 the international boundary between them, constituted tacit
acceptance of the map line as the line established by treaty. The effects of this reasoning were
as follows:

 A scale map that made a considerable error in placing thewatershed, was held to ?x
the boundary, sup-planting the treaty text, which species a physical fact, the water-
shed line, as the boundary;

 Concrete acts of sovereignty on the ground were largely dismissed as being

‘exclusively the acts of local, provincial authorities’ (Judgment,) while mere

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 inferences about behavior taken to be absence of official protest received legal force;
and
 The ‘general political conditions existing in Asia at his period,’ (Judgment,) the
enormous facts of French colonialism, were ignored. The response to the judgment in
Thailand was incredulity and outrage. The World Court reasoning was seen, in the
words of Thai Foreign Minister ThanatKhoman, as a ‘miscarriage of justice,’ while
 Other‘Officials contacted were puzzled that the court its judgment o amap,
considered actually only a roughsketch.’(BangkokPost,June18,1962)Looking back on
the oral pleadings and the judgment together with the dissenting opinions, what
seems truly strange is that if ICJ, in resolving the dispute with a map, hoped to
uphold the stability and nullity of conventional agreements between States rather
than capitulate to achievements of sheer conquering force, then the basis for its
judgment ran exactly in reverse. Dramatizing the failure to protest, the World Court
seemed to announce not an end to violence.

ISSUE:

Dispute as to the meaning or scope of the 1962 Judgment and Jurisdiction of the
Court .The Court stated that when it receives a request for the indication of provisional
measures in the context of proceedings for interpretation of a judgment under Art. 60 of the
Statute, the Court has to consider whether the conditions laid down by that Article for the
Court to entertain a request for interpretation appear to be satisfied9. Art. 60 of the Statute
provides that:

 The judgment is final and without Appeal. In the event of dispute as to the meaning or
scope of the judgment, the Court shall construe it upon the request of any party”.
 Legal Conditions required for indication of Provisional Measures.
 The Court indicated that the power to indicate provisional measures under Art.41 of the
Statute has as its object the preservation of the respective rights of the parties pending
the decision of the Court and this power may be exercised only if the Court is satisfied
that the rights asserted by a party are at least plausible.
 The Court examined the conditions of ‘plausibility’ one by one and concluded that the
conditions had been satisfied.

DECiSION:

In its Order, the Court first unanimously rejected Thailand’s request for the
caseIntroduced by Cambodia to be removed from the General List (as set out in

Section 2 of this Summary). It then indicated various provisional measures, as

Follows:

 That both parties should immediately withdraw their military personnel currently
present in the provisional demilitarized zone (PDZ), as defined in 62 Of the Order,
and refrain from any military presence within that zone and from any armed activity
directed at it. This decision was reached by a majority of 11 to 5 votes.
 That having noted that the Temple area had been the scene of armed Clashes between
the Parties and those such clashes might reoccur, the Court Decided that in order to

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 ensure that no irreparable damage was caused, there Was an urgent need for the
presence of all armed forces to be temporarily? Excluded from a PDZ around the area
of the Temple.
 That each of the Parties should inform the Court as to its compliance with theabove
provisional measures and that, until the Court had rendered its judgment on the
request for interpretation it would remain seized of the matters which Form the
subject of the Order.

REASONING:

Thailand did not claim for a long time that the temple and Cambodian sovereignty
was exercised peacefully. So that it would be treated as under Cambodian territory.

The international court of justice restricted the scope of an error as a ground of

invalidating a state’s consent to be bound by a treaty. The Vienna Convention 1969, Article
48 was prevailed over the judgment. The principle of estoppels is also applied in the
judgment.

CASE NAME- Tinoco Arbitration

PARTIES- U.K Vs Costa Rica

YEAR- 1913

PRINCIPLE:

The effective Government. It is important that the government have any authoritative
power effectiveness of the state.

FACT OF THE CASE:

In 1971, the government of Costa Rica was over thrown by Federico Tinoco who
assumed a power called an election established a new constitution June 1917. in 1919 Tinoco
and left the country his government fell. In 1922 the return of the Costa Rica Govt. passed a
law invalidating all contracts between the executive powers and private persons, made with
or without approval of the legislature power during the period of the Tinco government. The
Tinoco government had granted a concession of the central Costa Rica Petroleum Company
and was indebted the Royal Bank of Canada. Both British Corporation under new law both
their obligation were abrogated. Great Britain which had never recognized the Tinoco
Government Claimed behalf of these corporations and the maker was refereed to arbitration.
The arbitrations in this award discussed the question of recognition.

ISSUE:

 Whether the United Kingdom had recognized the new regime was by and large
Delevan in deciding the defacto existence of the Tinoco Govt. or not.

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  Whether the Govt. was recognized defacto was a matter to be decided objectively
against international standards and as issued to be resolve by examining the subject
views of a majority of status or not.

DECESION:

Costa Rica government would be bond to perform all international obligations created
by the Tinoco Governments.

REASONING:

 Tinoco government was the only government of its Rica Defacto and Dejure for 2
years and 9 months. During that time there was no other government disputing its
sovereignty. That is as unpeaceful administration of the whole country with the
accusation of the people. The succeeding government could not by legitimate decree
avoid responsibility for acts of that govt. affecting British Govt. subject except in
violation of international law. So that contrast validity make with the as it was an
effective one any obligation entries into by effective government cannot be nullified.
 The arbitration decide that since the Tinaco administration was in effective control of
the Costa Rica, it was the valid government irrespective of the fact that the UK,
together with a significant number o the other state , had not recognized it.
 The succeeding government could not by legitimate decree avoid responsibility for
acts of that government affecting British Government subject except in violation of
international law.

CASE NAME- Russia ship Case

PARTIES– USSR vs.USA

YEAR-1948, USA Federal Court.

PRINCIPLE:

“Par in Parem non-habit imperium/jurisdum (equal over equal do not have any
jurisdiction)” this maxim which concern with the status of sovereign equality enjoyed by all
independent states.

FACT OF THE CASE:

Russia ship was a Russian passenger ship. The ship was in the ocean of Atlantic. At
that time, a collision occurred that injured tow American women. Reaching the port of New
York they brought a suit against the ship and claimed compensation. But Russian foreign
ministry argued that since the ship was a property of Russia, this USA had no jurisdiction to
file suit against Russia.

ISSUE:

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 Where USA can file a suit against the property belong to Russia according to
international law.

DECESION:

It was held that USA couldn’t file a suit against Russia

CASE NAME– Luther vs. Sagor Case

PARTIES- Luther vs. Sagor

YEAR-1921 1kb 456(1921) 3kb each kings bench division court of appeal.

PRINCIPLE:

The importance of international law recognition with the retrospective effect

FACT OF THE CASE-

The concerned operation is produce of a timber factory in Russia owned by the

plaintiffs which have been nation in 1990 by the soviet government. In 1920 defendant
company purchase of quality of wood from the user and this was claimed in England by the
plaintiff as their property seen it had come from what had been factory.

ISSUE:

Whether the high court bound to take notice from the soviet decree or not.

DECISION:

It was held that the fact of soviet government was recognizing defacto and dejure did
not affect the issue. Another interesting point is that seen the foreign office certificate include
a statement that the forever provisional government of Russia recognized by the U.K had
been diapered during 1917. The court inferred the commencement of the soviet from that
date.

REASONING:

On appeal the decision in favor of the plaintiff was reserve in the light of the
intervening recognition of the soviet government by the British government. This recognition
was held to be retrospective and to date back to the actual coming into being of the
recognized entity.

CASE NAME- Haile Selassie Vs Cable and Wireless Ltd case

Page 115 of 137

PARTY- Haile Selassie Vs Cable and Wireless Ltd

YEAR-1939

PRINCIPLE:

Usually there is no deference between the De-jure recognition and DE-facto

recognition. But if there is any country between them in the circumstances the Defacto
recognition is retrospective in power.

FACT OF THE CASE:

By a contract entered into by the director general of posts, telegraphs and telephones
of Ethiopia with a Mario and telegraphic company a sum of money become due from the
defendants to the public revenue of Ethiopia. Ethiopia was subsequently conquered and
governed by Italy. In the court at first instance it was held that although Italy had been
recognized by Great Britain as the Defect government of Ethiopia, the plaintiff was still
recognized by Great Britain as the De jure sovereign and therefore the right to issue for
money owed was vested in him.

ISSUE:

Whether the decision was right or wrong.

DECISION:
The appeal was allowed and the action was dismissed.

REASONING:

 At first court decided that Haile Selassie is entitled to get that debt money because he
was legally recognized empire.
 And the court of Apple took place before the commencement of the action brought by
Haile Selassie. Consequently the action was dismissed and Haile Selassie had no “Locus
Standi’ before English Court.

CASE NAME- Salimoff and Co. vs. Standard Oil of N.Y. Case

PARTIES– Salimoff and Co. vs. Standard Oil of N.Y.

YEAR– 1933

PRINCIPLE:

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The principle of sovereign equality one state cannot interfere in the act of another state. This
view recognizes or establishes the declaratory theory of recognition.

FACT OF THE CASE:

Salimoff was a Russian citizen. He had oil business. The Russian Govt. by a decree
nationalized all the oil company. Then the Govt. entered into a contract with Standard Oil
Company of New York to sell oil. When the oil reached to New York Salimoff claimed the
oil arguing that since America had not recognized Russia, the contract is void and it cannot
enter into any transaction. Moreover, he raised the issue that the oil was taken from Solimoff
by an illegal act.

ISSUE:

 Whether non-recognition of a state affects the existence of that state?

 Who will get the oil?

DECESION:

U.S court held that U.S cannot interfere in the act of another state as it was the act of a
sovereign authority.

REASONING:

U.S court took the position that though America did not give recognition to U.S.S.R.
even then it cannot ignore the existence of U.S.S.S. according to the principle of sovereign
equality U.S. cannot interfere in the act of another state. According to the “parinparem non-
habet imperium” an equal cannot interfere against another equal state.

CASE NAME- ArantzazuMendi Case.

PARTIES– Spain vs. U.K

YEAR-1939

PRINCIPLE:

In the circumstances there is no distinguish between the De- Jure recognition

and De-Facto recognition. Both are treated as same on the matter of situation.

FACT OF THE CASE:

In 1939, during the Spanish Civil war, the ArantzazuMendi, a Spanish ship registered
in Bilbao was requisitioned which on the high seas by a decree of the Republican government

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of Spain. On her arrival on London, her owners issued a right in ram for possession and she
was arrested by the Admiralty Marshal, The Republican Govt. then issued a wait claiming
possession of the ArantzazuMendi. The nationalist govt. sought to set aside the writ and
arrest warrant on the ground that the action imploded a foreign sovereignty state namely. The
nationalist government of Spain.

ISSUE:

 Whether the arrest of ArantzazuMendi, by Administrative Marshall was lawful or not.

 Whether the nationalist Government of Spain was a foreign sovereign state.
 Where the Nationalist Government of Spain is recognized by His Majesty’s Government
as a foreign.
 Whether the party sought to be impeded.

DECISION:

The judgment by Becknell that the nationalist government was a foreign sovereign
state for the purpose of international Law and set the writ and warrant of arrest a side. This
secession was appealed to the House of Lords but the appeal was dismissed.

REASONING:

The sovereign has to decide whom he will recognize as a follow a sovereign in the
family of state. In the above case the House held that a letter from the foreign office stating
that the Nationalist Government of Spain at the Date of the write was a foreign sovereign
terminated the controversy as to its status.

CASE NAME- Dikko Incident Case

PARTY-U.K Vs Nigeria

YEAR- 1984

PRINCIPLE:

The diplomatic bag do not open or capture. If any I in case of any incident happened
that the diplomatic bag was used illegal way or think that for the reasonable cause then it
should maintained its non violation process.

FACT OF THE CASE:

Mr. Dikko was a Nigerian political leader who kept away from London and to staying
there he speech against the Nigerian Military Government. He arrested by the Nigerian
Diplomatic agent after that to use a high power of drug to slept him for the reason of
trafficking him in Nigeria by the diplomatic bag. But in the airport the bag was challenged by
the airline authority checked by the authority Dikko was found that bag senseless.

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ISSUE:

Whether it was reasonable to open diplomatic bag by the airline authority?

DECESION:

The court held that, the airline authority does this which is necessary to avoid the use
advantages diplomatic.

REASONING:

To restrain or avoid the abuse of diplomat, activities of airline authority did not do any wrong
which is conflicting the international law.

CASE NAME- Iran Case

PARTIES- U.S.A Vs Iran

YEAR- 1980

PRINCIPLE:

To entire into mission area without permission or protect to destroy in mission area
and not to violation in peace of mission or take necessary steps because of not to reduce the
dignity of mission which is a special duty of a state.

FACT OF THE CASE:

The United States Embassy at teharan in Iran overruled a military group and hundreds
of several students. They are not permitted by the president of Iran Al Khowameni. They
controlled over the documents and arcades to entire into the diplomatic mission area and
captured by the officials. By Iran authority was not protest them.

ISSUE:

 Whether the Iranian Government was bound to provide force to secure U.S.A Embassy
and its personals?
 Whether Iran Government was bound to provide compensation or not?
 Whether Iran Government breached any International Law or not?

DECESION:

International courts of Justice held that though Iran government was bound to protect
the diplomatic mission. So that Iran Government was not do this they are bound to pay
compensative.

REASONING:

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  Violation of official correspondents.
 Violation of achieves and documents.
 Violation of Vienna Convention 1961 22(1) and 22(2)

CASE NAME- The Crying Suitcase Case

PARTIES- Egypt vs. Italy

YEAR- 1964

PRINCIPLE:

The diplomatic bag do not open or capture. If any I in case of any incident happened that the
diplomatic bag was used illegal way or think that for the reasonable cause then it should
maintained its non violation process.

FACT OF THE CASE:

An Egyptian diplomatic agent back to his state carries on a suitcase in Italy at Rome
airport. The custom officials of the airport hear cried noise into the suitcase. For that reason
they (officials) checking the suitcase but the agent deny this. The officials opened the suitcase
in force and found that the Israeli Diplomatic into the suitcase and went away him. The
diplomatic of Egypt said that they (official) violation of the Vienna Convention 1961 Rule
27(3) to opened the suitcase.

ISSUE:

Whether they worked was done by the airport authority in Rome which was violation
on the international Law or diplomatic chance and the responsibility or not?

DECESION:

The work which was done by the authority was not violation of International law
although it was necessary to do.

REASONING:

When it was a question foe a man’s life to use by force and opened it was not
violating of international law. Although it was restricted by the Vienna convention 1961, rule
27(3)

CASE NAME- The U.S.S.A. Lorry Case

PARTIES- USSR vs. West Germany

Page 120 of 137

YEAR- 1980

PRINCIPLE:

In this case the lorry was capable of movement. So being capable of movements it
could not be a diplomatic bag is not a justified reason.

FACT OF THE CASE:

USSR sent some boxes in West Germany which were carried by a lorry that was
externally marked as “diplomatic bag”. But the authority of West Germany posed doubton
the lorry about it being a diplomatic bag. USSR ambassador said that the lorry was a
diplomatic bag. Since West Germany was under reasonable doubt they demanded for the
search of the bag. They further contended that though the inner material of the lorry might be
diplomatic bag or bags, but the lorry itself was not a diplomatic bag.

ISSUE:

 Whether West Germany has the right to search the diplomatic bag.
 Whether it was violation of the article 36 of the Vienna Convention on
Diplomatic Relation, 1961.

DECISION:

The court held that

 The seizure of a bag must be reasonable.

 A lorry cannot be said or accepted as diplomatic bag.

REASONING:

 Article 36 deals with exemption of diplomatic bag from customs duties

and search
 Article 36 provides that the diplomatic baggage shall be exempted from
inspection unless there are serious ground for doubt that , it contains article
not covered by the exemptions.

CASE NAME- Asylum Case

PARTIES- Columbia vs. Peru

YEAR- 1950, International Court of Justice.

PRINCIPLE:

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  Regional rules are not necessarily subordinate to general rules of international law but
may be in a sense complementary or correlated thereto, and

 An international tribunal must, as between states in the particular region concerned give
effect to such regional rules as are duly proved to the satisfaction of the tribunal.

FACT OF THE CASE:

An unsuccessful military rebellion took place in Peru in October 1948. It was

suppressed on the same day and the President of the Republic issued a decree outlawing the
American People’s Revolutionary Alliance, which he charged with having organized and
directed the rebellion. A warrant was issued for the arrest of Victor Raul Haya de la Torre,
the head of the American People’s Revolutionary Alliance and a Peruvian national, in
connection with the rebellion. On 3 January 1949 Haya de la Torre sought asylum in the
Colombian Embassy in Lima, the capital city of Peru.

The Colombian Ambassador informed the Peruvian Government that he had granted
diplomatic asylum to Haya de la Torre under Art. 2, paragraph 2 of the Havana Convention
on Asylum 1928, and under Art. 2 of the Montevideo Convention on political Asylum, 1933.
He had qualified Haya de la Torre as a political refugee, and requested the government of
Peru to allow Torre to leave the country.

Peru contended that Haya de la Torre was not entitled to asylum and refused to accept
the right of Colombia to define unilaterally the nature of Haya de la Torre’s offense. After
diplomatic correspondence between two countries, the case was referred to the International
Court of Justice.

ISSUE:

In determining the issues involved, the International Court of Justice considered the
following issues:

 Whether there is an custom so established that it is binding to allow Columbia to grant

political asylum
 Whether the granting of diplomatic asylum was a practice or custom in the region of
Latin America.
 Whether Columbia is competent to qualify the offence of Haya de la Torre and granting
asylum.
 Whether such asylum was being practiced recurrently as customary norms of the
international law.

DECISION:

The international Court of Justice decided that a State granting diplomatic asylum do
not have the unilateral right to qualify an offense for The purpose of asylum, nor was
Colombia entitled to claim guarantees for the safe departure of the man to whom he had
given asylum.

REASONING:

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 Columbia cited several conventions, of which some Peru was not a party so not
binding, and others that were accepted by so few states it is very weak. Columbia also refers
to many cases where political asylum was granted, but court cannot determine whether they
were granted due to usage, or for political expediency. Court says Columbian Govt. has not
through its arguments proven the existence of such a custom. And, if there was such a
custom, it could not been forced against Peru, because they were not party to the Montevideo
convention which included matters of political asylum

CASE NAME- Savarkar Case

PARTY-France Vs. Great Britain

YEAR-1911

PRINCIPLE:

If any state did not granted any persons asylum or mistakenly send him other state for
that reason after then the state send first other didn’t cleared again or the state lastly gave
asylum didn’t back the person and that claimed has no validity.

FACT OF THE CASE:

Mr. VinayakDonadorSavarkar was being transported in India for trail on a charge of

right reason and abutment of murder. He managed to step out at manse tiles throughout the
port hole of a water closet. But he was captured by a French Police man who handed him
over to the captain of more without extradition proceeding being a political offender. France
demanded him back but the British Government refused to surrender.

ISSUE:

 Whether France was entitled extradition of Saverkar?

 What are the relevant international law and customs in this regard?

DECISION:

International court gave decision in favor of Britain and said that here is no rule
extradition of international law for that reason the Britain was bound to extradition Saverker
in France.

REASONING:

There is no rule or Act about extradition in International Law which ground the U.K
is bound to extradite Savarkar.

Gabcikovo-Nagymaros Project case brief (Hungary/Slovakia)

Procedural History:

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NATURE OF CASE: Proceeding before the International Court of Justice

Overview:

FACT SUMMARY: Hungary (D) claimed that changed circumstances made

enforcement of a treaty with Slovakia (P) impossible.

FACTS: Hungary (D) and Slovakia (P) had agreed in 1977 to build and operate a
system of locks along the Danube River comprising a dam, reservoir, hydroelectric power
plant, and flood control improvements. This project was never completed and both countries
underwent changes in their political and economic systems beginning in 1989. Hungary (D)
first suspended and then abandoned its part of the works and later gave notice of termination
of the treaty. In 1992, Hungary (D) and Slovakia (P) asked the l.C.J. to decide on the basis of
international law whether Hungary (D) was entitled to suspend, and subsequently abandon,
its part of the works, on the basis of the doctrine of impossibility of performance.

ISSUE:

Must a fundamental change of circumstances have been unforeseen and must the
existence of the circumstances at the time of the treaty’s conclusion have constituted an
essential basis of the consent of the parties to be bound?

OUTCOME:

HOLDING AND DECISION: [Judge not stated in casebook excerpt.] Yes. A fundamental
change of circumstances must have been unforeseen and the existence of the circumstances at
the time of the treaty’s conclusion must have constituted an essential basis of the consent of
the parties to be bound. Where the prevalent political and economic conditions were not so
closely linked to the object and purpose of the treaty as to constitute an essential basis of the
consent of the parties, there was no fundamental change of circumstances. The plea of
fundamental change of circumstances may only be applied in exceptional cases.

RULE:

A fundamental change of circumstances must have been unforeseen and the existence
of the circumstances at the time of the treaty’s conclusion must have constituted an essential
basis of the consent of the parties to be bound.

ANALYSIS:

The Court relied on the Vienna Convention. The Vienna Convention may be seen as a
codification of existing customary law on the subject of termination of a treaty on the basis of
change in circumstances. New developments in environmental law were not completely
unforeseen.

THE LOCKERBIE CASE 1992, Libya V USA, UK, ICJ

PRINCIPLE:

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 No country is bound to extradite. Special Extradition can be made on special
circumstances.Extradition is a matter of bilateral treaty.

FACT:

Pan Am Flight 103 was a regularly scheduled Pan Am transatlantic flight from
Frankfurt to Detroit via London and New York. On 21 December 1988, the aircraft was
destroyed by a bomb, killing all 243 passengers and 16 crew, Large sections of the aircraft
crashed onto residential areas of Lockerbie, United Kingdom, killing 11 more people on the
ground. Lockerbie Case After investigation by FBI and others, Two Libyan nationals found
convicted .Libyan leader Colonel Muammar Gaddafi handed over the two men for trial at
Camp Zeist, Netherlands after protracted negotiations and UN sanctions.

DECISION:

In 2001, Libyan intelligence officer Abdelbaset al-Megrahi was jailed for life after
being found guilty of 270 counts of murder but In August 2009, he was released by the
Scottish government for his cancer.

ISSUE:

Whether US compel Libya to surrender its two accused national in absence of any
extradition treaty between them?

DECISION:

Without Going into the merit of the case, the court advised Libya to follow the
negotiation with UN

REASONING:

Libya had no extradition treaty with US but due to pressure from UN Libya came to
an agreement to send the accused for trial under certain condition.

Summery Corfu Channel Case; United Kingdom Vs Albania 1946:

Facts/ background:

On May 15th. 1946 the British warships passed through the Channel without the
approval of the Albanian government and were shot at. Later, on October 22nd, 1946, a
squadron of British warships (two cruisers and two destroyers), left the port of Corfu and
proceeded northward through a channel previously swept for mines in the North Corfu Strait.

Both destroyers were struck by mine and were heavily damaged. This incident
resulted also in many deaths. The two ships were mined in Albanian territorial waters in a
previously swept and check-swept channel.

After the explosions of October 22nd, the United Kingdom Government sent a note to
the Albanian Government, in which it announced its intention to sweep the Corfu Channel

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shortly. The Albanian reply, which was received in London on October 31st, stated that the
Albanian Government would not give its consent to this unless the operation in question took
place outside Albanian territorial waters. Meanwhile, at the United Kingdom Government's
request, the International Central Mine Clearance Board decided, in a resolution of November
1st, 1946, that there should be a further sweep of the Channel, subject to Albania's consent.
The United Kingdom Government having informed the Albanian Government, in a
communication of November 10th, that the proposed sweep would take place on November
12th, the Albanian Government replied on the 11th, protesting against this 'unilateral decision
of His Majesty's Government'. It said it did not consider it inconvenient that the British fleet
should undertake the sweeping of the channel of navigation, but added that, before sweeping
was carried out, it considered it indispensable to decide what area of the sea should be
deemed to constitute this channel, and proposed the establishment of a Mixed Commission
for the purpose.

It ended by saying that any sweeping undertaken without the consent of the Albanian
Government outside the channel thus constituted, i.e., inside Albanian territorial waters
where foreign warships have no reason to sail, could only be considered as a deliberate
violation of Albanian territory and sovereignty. After this exchange of notes, 'Operation
Retail' took place on November 12th and 13th.

One fact of particular importance is that the North Corfu Channel constitutes a
frontier between Albania and Greece, that a part of it is wholly within the territorial waters of
these States, and that the Strait is of special importance to Greece by reason of the traffic to
and from the port of Corfu.

ISSUES:

The British government claimed the minefield which caused the explosions was laid
between May 15th, 1946, and October 22nd, 1946, by or with the approval or knowledge of
the Albanian Government. Thus Albania was responsible for the explosions and loss of life
and had to compensate the UK government.

In addition to the passage of the United Kingdom warships on October 22nd, 1946,
the second question in the Special Agreement relates to the acts of the Royal Navy in
Albanian waters on November 12th and 13th, 1946 when the British government carried out
a minesweeping operation called 'Operation Retail' without the consent of Albania.

UK held the opinion the passage on October 22nd, 1946 was innocent and that
according to rules of international law it had the right to innocent passage through the North
Corfu Channel as it is considered part of international highways and does not need a previous
approval of the territorial state.

The Albanian Government does not dispute that the North Corfu Channel is a strait in
the geographical sense; but it denies that this Channel belongs to the class of international
highways through which a right of passage exists, on the grounds that it is only of secondary
importance and not even a necessary route between two parts of the high seas, and that it is
used almost exclusively for local traffic to and from the ports of Corfu. Thusa previous
approval of the territorial state is necessary.

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1) Should the North Corfu Channel as it is considered part of international highways?

2) Is Albania responsible under international law for the explosions which occurred on the
22nd October 1946 in Albanian waters and for the damage and loss of human life which
resulted from them and is there any duty to pay compensation?'

ANALYSIS:

The court analyses the geographical situation of the channel connects two parts of the
high seas and is in fact frequently being used for international navigation.Taking into account
these various considerations, the Court concludes that the North Corfu Channel should be
considered as belonging to the class of international highways through which an innocent
passage does not need special approval and cannot be prohibited by a coastal State in time of
peace.

The UK government claims that on October 22nd, 1946, Albania neither notified the
existence of the minefield, nor warned the British warships of the danger they were
approaching. According to the principle of state responsibility, they should have done all
necessary steps immediately to warn ships near the danger zone, more especially those that
were approaching that zone. In fact, nothing was attempted by the Albanian authorities to
prevent the disaster. These grave omissions involve the international responsibility of
Albania.

But Albania's obligation to notify shipping of the existence of mines in her waters
depends on her having obtained knowledge of that fact in sufficient time before October
22nd; and the duty of the Albanian coastal authorities to warn the British ships depends on
the time that elapsed between the moment that these ships were reported and the moment of
the first explosion.

CONCLUSION OF THE COURT:

The Court therefore reaches the conclusion that Albania is responsible under
international law for the explosions which occurred on October 22nd, 1946, in Albanian
waters, and for the damage and loss of human life which resulted from them, and that there is
a duty upon Albania to pay compensation to the United Kingdom.

In the second part of the Special Agreement, the following question is submitted to
the Court:

(2) Has the United Kingdom under international law violated the sovereignty of the
Albanian People's Republic by reason of the acts of the Royal Navy in Albanian waters on
the 22nd October and on the 12th and 13th November 1946 and is there any duty to give
satisfaction?

Albania was in fact in war with Greece which means that the coastal state was not in
time of peace. UK had not an innocent passage due to the way it was carried out. The court

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assessed the manner of UK warships after they had been shot at May 15th. Having thus
examined the various contentions of the Albanian Government in so far as they appear to be
relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the
sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on
October 22nd, 1946.

The United Kingdom Government does not dispute that 'Operation Retail' was carried
out against the clearly expressed wish of the Albanian Government. It recognizes that the
operation had not the consent of the international mine clearance organizations, that it could
not be justified as the exercise of a right of innocent passage, and lastly that, in principle,
international law does not allow a State to assemble a large number of warships in the
territorial waters of another State and to carry out minesweeping in those waters. The United
Kingdom Government states that the operation was one of extreme urgency, and that it
considered itself entitled to carry it out without anybody's consent.

The Court can only regard the alleged right of intervention as the manifestation of a
policy of force, such as has, in the past, given rise to most serious abuses and such as cannot,
whatever be the present defects in international organization, The United Kingdom Agent, in
his speech in reply, has further classified 'Operation Retail' among methods of self-protection
or self-help. The Court cannot accept this defense either find a place in international law.

FINAL CONCLUSION OF THE COURT:

1) On the first question put by the Special Agreement of March 25th, 1948,

The court gives judgment that the People's Republic of Albania is responsible under
international law for the explosions which occurred on October 22nd, 1946, in Albanian
waters, and for the damage and loss of human life that resulted there from; and

Reserves for further consideration the assessment of the amount of compensation and
regulates the procedure on this subject.

2) On the second question put by the Special Agreement on the violation of state sovereignty,

The court gives judgment that the United Kingdom did not violate the sovereignty of
the People's Republic of Albania by reason of the acts of the British Navy in Albanian waters
on October 22nd, 1946; and unanimously, gives judgment that by reason of the acts of the
British Navy in Albanian waters in the course of the Operation of November 12th and 13th,
1946, the United Kingdom violated the sovereignty of the People's Republic of Albania, and
that this declaration by the Court constitutes in itself appropriate satisfaction.

NOTTEBOHM CASE:
This case is a dispute between Liechtenstein and Guatemala. It is based on the actual
relation, interest and possition of individual to his national State in the case of international
protection. Mr. Friedrich Nottebohm was born as a german national. In 1905 he went to the
Guatemala, where he started his own successful business. In 1939 he applied for

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naturalization in Liechtenstein. In the same year he paied all the fees and taxes, incuding
security deposit (that was about 68 500 Swiss francs. On the 13th of October 1939 Mr.
Nottebohm was naturalized by the Certificate fo Nationality produced by a Supreme
Resolution of the Prince. Then he obtained the Liechtenstein Passport and went to the
Guatemala to continue in his business activities. Till 1943 he had fixed abode in Guatemala.

When, on the 17th December 1951 Liechtenstein filed an Application against

Guatemala, it claimed damages in respect of various measures which Guatemala had taken
against the person and property of Mr. Nottebohm. Firstly, Guatemala contended that the
court is without jurisdiction. The Court decided to reject the preliminary objection to its
jurisdiction. Than started the main proces. Liechtenstein claimed restitution and
compensation on the ground that the Government of Guatemala had acted towards Mr.
Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law. Guatemala
contended that the claim waas inadmissible, for example of nationality of Mr. Nottebohm.

The Court had to deal wiht the question without consideration of the validity of
Nottebohm’s naturalization according to the Law of Liechtenstein. Nationality itself is within
the domestic jurisdiction of the State. The exercise of State’s domestic jurisdiction do not
have automatically international effect. The problem is real and effective nationality, that is
based on strong factual ties between the person and the State. Other problem is habitual
residence of the individual and the centre of his interests, his family ties, his participation in
public life, attachment shown by him for a country etc. Nationality, in the case of protection
has to correspond with the factual situation. The individual has to be closely connected with
the population of a particular State. At the time of naturalization Mr. Nottebohm had his
family, business connections and interest in Germany, so the application for naturalization in
Liechtenstein was not motivated by the desire to disociate himself from the Government of
his country. Other thing is that he had been settled for 34 years in Guatemala where he stayed
until removal as a result of war measures in 1943 and Guatemala refused to readmit him.
Nottebohm started to live in Liechtenstein, because Guatemala refuse to admit him. The
naturalization was not based on any real prior connection with Liechtenstein. The
naturalization was not for obtain a legal recognition and became a part of Liechtenstein
population.

Because of all these reasons the claim of Liechtenstein was inadmissible.

Case Concerning East Timor

(Portugal v. Australia)
International Court of Justice Reports 1995

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FACTS

 The International Court of Justice heard this case in 1995, and decided the case by
fourteen votes to two.In the Treaty of 1989 between Indonesia and Australia, the two
countries negotiated terms of agreements regarding the exploration and use of
resources by both parties found in the area located between the south coast of East
Timor and the northern coast of Australia known as the “Timor Gap.” Portugal
argues that Indonesia does not have the authority to enter into treaties regarding East.

 Timor because Portugal is the legal administrative authority as decreed by the

Security Council of the United Nations. Therefore, Australia has proceeded in
unlawful actions against Portugal and against the people of East Timor and their right
to self-determination.

 The Plaintiff in this case is the Portuguese Republic (Portugal) who argues that when
Australia signed the Treaty of 1989 with Indonesia regarding the “Timor Gap,” it did
not respect the administrative authority of Portugal concerning East Timor, and thus,
did not respect the right of the people of East Timor to self-determination.

 The Defendant in this case is the Commonwealth of Australia (Australia) who asserts
that Indonesia is the legal authority concerning East Timor. Thus, there is no dispute
between Portugal and Australia because Portugal has no standing to bring this case. In
addition, the Court does not have jurisdiction in this case because Indonesia did not
give compulsory jurisdiction to the Court. Therefore, it did not give consent to have
matters regarding Indonesia and its territories decided by this Court.

QUESTIONS:

 Is there a dispute between Portugal and Australia?

 Does the Court have the jurisdiction to decide this case?

DECISIONS:

The Court ruled that there was a dispute between Portugal and Australia regardless
of whether Portugal had standing to bring this case. The Court reasoned that because there
was a disagreement between facts and points of law, there was a conflict of legal views and
thus, a dispute.

The Court declared that it did not have jurisdiction to decide this case. Because the
fundamental question pertinent to this conflict was, “Who possessed the ultimate power to
negotiate a treaty concerning East Timor, Indonesia or Portugal?” the Court wouldhave to

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decide on matters concerning Indonesian state and authority. Because Indonesia did not give
consent for matters regarding its state, conflicts, and conduct to be heard to the Court, the
International Court of Justice was unable to hear the case based on Article 35, paragraph 2
of the Court Statute, which states that parties must give consent to the Court.

Principles

 Jurisdictionis the main international law principle relevant to this case.

 Consent to jurisdiction is an important international law principle that decides this
case.

 The definition of a dispute is when there is disagreement between two parties on

facts or the basis of legal points.

CONCLUSION

This case is important because it discusses the importance of jurisdiction in the

Court’s ability to hear and arbitrate a case. This is extremely important in international affairs
and international law when peaceful means of arbitration are sought to settle international
disputes. If a state does not recognize or consent to a court’s authority to decide on an issue, it
is logical to conclude that this state might not abide by the judgments of the court concerning
their state affairs. Therefore, peaceful settlements of disputes between nations could be
difficult to achieve.

Anglo-Iranian Oil Co. Case (United Kingdom v. Iran) ICJ (1952)

FACTS:

The Anglo-Iranian Oil Co. signed an agreement with the Iraniangovernment in 1933.

In the spring of 1952 the Iranian government passed multiplelaws that nationalized
the oil industry in Iran. Because of this, adispute between the Anglo-Iranian Oil Co. and Iran
arose. TheUnited Kingdom adopted the cause, stating the virtue ofdiplomatic protection.

The Iranian government signed and ratified the declaration ofcompulsory jurisdiction for the
ICJ in 1932. There are no treatiesbetween the UK and Iran that are relevant to this case that
havebeen written since 1932. The Iranian government states that thedeclaration of
compulsory jurisdiction only applies to treatiessigned after the ratification of the declaration
and, therefore,believes the ICJ does not have jurisdiction of this dispute.

The UK does not believe the Anglo-Iranian Oil Co. has beentreated in accordance to the
principles and practice of treatiessigned with Turkey and other States since the declaration.

The UK also claims the contract signed between the Anglo-Iranian Oil Co. and Iran in 1933
was a double charter, and therefore counts as a treaty or convention.

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ISSUES:

Does the ICJ have jurisdiction over this case?

DECISION:

The ICJ does not have jurisdiction over this case because there isnot treaty or convention
signed between Iran and the UK that hasbeen signed since 1932 that are disputed by this case.
Also itdoes not matter that the Anglo-Iranian Oil Co. has not beentreated in accordance to the
principles and practices of othertreaties because the UK was not a party to said treaties.
Finally,the UK was not a party to the original agreement between theAnglo-Iranian Oil Co.
and Iran. Therefore the ICJ cannot havejurisdiction over this case in accordance to the
declaration of compulsory jurisdiction signed by Iran in 1932.

PRINCIPLES:

The key point in this case was compulsory jurisdiction with theICJ. The jurisdiction
only applies to conflicts between two Statesover signed treaties or conventions, corporations
cannot berepresented by their home State unless they were party to a signed treaty between
those two states.

CONCLUSION:

This case was important because it affirms the principle thatcorporations do not have
international legal personality. Also itshows the ICJ cannot render judgment on cases that are
not conflicts between two States over signed treaties.

The West Rand Central Gold Mining Company. v/s The King, 1905

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FACT OF THE CASE

This is the first landmark judgement on our list. The case was about the petition of
right instituted in June 1905 by the West Rand Central Gold Mining Company. The petitioner
alleged that in the course of travelling from Johannesburg to Cape Town before the notorious
war between the South African Republic and Great Britain which culminated into the death
of several persons, two parcels of Gold were confiscated by the South African Republic
Authorities. Not too long after the two parcels of gold were seized, the war broke out and
Great Britain defeated the South African Republic. The West Rand Central Gold Mining
Company in its petition claimed that the responsibility to confiscate any product or goods
now falls within the purview of the state of Great Britain.

JUDGEMENT

The Divisional Court bench presided over by Lord Alverstone C. J after hearing the
petition of the West Rand Central Gold Mining Company ruled that the principle of
international law was not in existence making it impossible for a conquered state to be liable
to the confiscated gold.

Portugal v/s India, 1954

FACT OF THE CASE

The case between Portugal Vs India in 1954 is another landmark judgement of

international law. In the case, Portugal in 1954 claimed possession of two enclaves in India –
Nagar-Aveli and Dadra. In the petition filed by Portugal, the country claimed that it has the
right of passage to the two enclaves in its possession in order to exercise its sovereignty. The
petition also contended that India prevented it from carrying its statutory duties within the
two enclaves, and thus sought the court’s intervention in the case. India, in its affidavit,
maintained that the court had no jurisdiction over the case and that the case was unfounded.

JUDGEMENT

The court delivered its first judgment relating to jurisdiction on the 26th of November
1957, which was challenged by India. Here, the court rejected four preliminary objections
that were raised by India. On the 12th of April 1960, the court delivered its second judgment.
The court ruled that Portugal had the right of passage to the two enclaves, but that the right
did not cover the Indian armed forces, police, and ammunition.

Paqueta v/s Habanna, 1898

FACT OF THE CASE

On the 4th of April 1898, two vessels used for fishing named Paquete Habana and the
Lola left the Cuban port separately with a mission to fish. The US merchant vessels on the
said date captured the two fishing vessels. The move to capture the vessels was sequeled to
an order by Admiral William T. Sampson to clamp down on all vessels operating on the
waters of Cuba. As of then, the market value of both vessels was $2,000(US). After a

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thorough search of the vessels, no incriminating items were found. The two vessels were
subsequently placed on auctions.

The owners of the vessels approached a circuit court to file an appeal in order for the
Navy to release the two vessels. The petitioners contended that during wars, fishing vessels
were exempted from the vessels to be captured by the US Navy.

JUDGEMENT

The US Supreme Court after hearing the pleas of the petitioners asserted that there
was an international law. The court cited legal precedents to deliver its judgement in the case,
particularly the case between France and Great Britain in 1403. The court declared that the
action of the US Navy was unlawful and then reversed the decision of a lower court. The
Supreme Court subsequently ordered the Navy to restore the seize vessels or pay an amount
commensurate with the value of the vessels.

Jolly George Varghese and Anr. v/s Bank of Cochin, 1972

FACTS OF THE CASE

The appellant, in this case, suffered a decree worth over Rs. 2.5 lakhs. The Bank of
Cochin was the holder of the decree. Two other decrees had already been instituted against
the appellant which were a net sum of Rs. 7 lakhs. In a bid to execute the decrees, a court of
competent jurisdiction issued a warrant under Section 51 of the Civil Procedure Code to
arrest and detent the appellant in civil prison. The appellant filed an appeal against the court’s
decision.

JUDGEMENT

The appeal court viewed the case from an international law perspective. It declared
that it was against the right to Life and Liberty of the appellant for the lower court to issue a
warrant of arrest and detention. The court also contended that the lower court erred in law by
leveraging International law to issue the warrant.

Bank of Ethiopia v/s National Bank of Egypt and Liquori, May 11, 1937

FACTS OF THE CASE

In a bid to dissolve the bank of Ethiopia after Addis Ababa was captured, an Italian
decree was promulgated. The Bank of Ethiopia claimed specific orders and accounts against
the defendant – The liquidator and the National Bank of Egypt. The National Bank of Egypt
was appointed by the Italian decree.

JUDGEMENT

The court determined whether the bank or Ethiopia had ceased to exist or has been
dissolved. The court then ruled that effect must be given to the decree made by the Italian
government since the British government had recognized the Italian government as the de
facto government of the area, meaning the area is under the control of the Italian government.

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 Luther v/s Sagor (UK), 1921

FACT OF THE CASE

The case was brought before the court to establish whether the plaintiff’s company
had the right to some quantity of plywood that was imported from Russia by the defendants.
The plaintiff, a Russian company into the business of plywood production had approached
the court to stop the sale of their plywood that was seized by the Republican Government of
Russia without any right to confiscate such goods. The plaintiff in their petition before the
court contended that the action of the Republican Government of Russia a day-light robbery
since the Republican Government of Russia was not recognized by the Government of His
Majesty.

JUDGEMENT

The court was to determine whether or not it was illegal to nationalize all the factories
producing plywood. The court after considering the case in its merit held that De Facto
recognition was interim, particularly when it comes to the internal affairs of a state. The court
also ruled that there is no established distinction de jure and de facto recognition in terms of
giving effect to a recognized authority’s internal acts.

The Caroline case, 1837

FACTS OF THE CASE

A group of men in 1837 led by William Mackenzie staged a rebellious protest in

Upper Canada (Which today is known as Ontario) in a bid to compel the government to be
more democratic. The group’s protest was hailed by some citizens of the United States. A
steamer known as the Caroline and owned by some American citizens was deployed to
convey supplies and men to the Canadian Navy Island from the Niagara River in the US. On
the 29th of December, 1837, some persons loyal to the Canadian government crossed over
the US side and then loosed the Caroline and set it on fire. One US citizen was killed in the
process. Lawyers from the US approached a court for a judicial intervention in the dispute
between Canada and the United States.

JUDGEMENT

The court was to determine whether or not the United States had the right to self-
defense. The court in its wisdom after hearing all the pleas ruled that the petitioner had the
right to self-defense only on the following basis;

 When an attack is launched on a state

 When the Security Council for International Peace and Security has not taken any
action.

Island of Palmas Arbitration, 1925

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FACTS OF THE CASE

Palmas is a strategic location which has little or no economic importance. The

settlement is 1km in east-west width and 2.6km in north-south length. As of when this case
was decided in 1932, the population of this settlement was recorded to be 750. In 1898, the
Republic of Spain leveraged the Treaty of Paris (1898) to cede the Philippines to the US. The
Palmas area was part of the areas that Spain ceded to the United States. The US in 1906
discovered that the Netherlands also had sovereignty over the Palmas Island. Both countries
decided to enter into arbitration at the Permanent Court of Arbitration on the 23rd of January,
1925. All the necessary papers were signed. The agreement was subsequently registered on
the 19th of May 1925 at the League of Nations Treaty Series. A Swiss lawyer was the
arbitrator in the case.

JUDGEMENT

The arbitrator was to determine whether Palmas was part of the US or Indonesia since
the latter was part of the Netherlands. The arbitrator ruled in favour of the Netherlands.

Schooner Exchange v/s McFaddon, 1812

FACTS OF THE CASE

The Schooner Exchange on the 27th of October, 1809 sailed from Maryland in the
United States to Sebastian in Spain. The ship was owned by the duo of John McFaddon and
William Greetham. Then, on the 30th of December 1810, Napoleon Bonaparte ordered the
seizure of the Schooner Exchange. The Exchange was subsequently commissioned as a
warship in France. Not long after the commissioning, the vessel was docked in Philadelphia
due to storm damage. The original owners of the vessel approached the district court, prayed
the court to restore their rights to the vessel.

JUDGEMENT

The district court after hearing the owners of the vessel’s plea ruled that it has no
jurisdiction over the case. John McFaddon and William Greetham went on appeal at the
circuit court. The circuit court ordered that the court should be returned back to the district
court for trial. The case later proceeded to the Supreme Court. The Supreme Court bench
presided over by Chief Justice Marshall ruled that a state has exclusive and absolute
jurisdiction in its territory. Chief Justice Marshall also noted that a friendly vessel could enter
another country’s territory with its consent. To this end, Chief Justice Marshall concluded
that leveraging International law, the original owners of the vessel should get back their
property.

Pakistan Vs India, 1958

FACTS OF THE CASE

This list wouldn’t be complete without this case. Two dominions, namely India and
Pakistan were established by the Indian Independence Act, 1947. A Boundary Commission
was subsequently appointed with a view to determining the two dominions’ boundaries. After

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the partition by the Boundary Commission, some areas in India became enclaves in eastern
Pakistan. Conversely, two areas – Dehagram and Angarpota were also enclaves in India.
Following the ensuing confusion, the Prime Ministers of both countries entered boundary
disputes agreement in 1958. However, there were doubts about the agreement in certain
quarters.

JUDGEMENT

The Indian President as of then referred the matter to the Supreme Court in an
exercise of his Presidential powers under clause (1), Article 143 of the Indian Constitution.
The supreme court bench led by the then Chief Justice of the country held that it amounted to
servitude the move which concession three Bigha to Pakistan. The court also added that the
concession does not translate to transfer of the territories to Pakistan.

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