1 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

JURISPRUDENCE.

18 Marks.

1. Explain the Legal concept of personality and distinguish natural person from
legal person?.

Answer :-

Introduction:-

The main purpose of the law is to govern the relationship between

individuals in the society. The law is concerned with regulating
human conduct, the concept of legal personality constitutes an
important subject matter of jurisprudence for there cannot be rights
and duties without a person.
Personality of a human being means the possession of certain feature
particularly belonging to mankind, e.g. power of thought, power of
speech, etc. Hence, there are certain attributes which make a human
being a person having the personality recognized by law. If any
human being has no attributes provided by the law than he is not a
person at all, e.g. Slaves have no right they are like chattels (things)
and therefore they are not persons. But, in law, there are persons
who are not human being, like a corporation, company, university,
etc.
Origin of the concept of legal personality (person):-
The word “person” is derived from the Latin word “persona” which
means a mask worn by actors while playing different roles in a drama.
Until sixty century the word was used to show the part played by a
man in life. After this, it started to be used in the sense of a living
being capable of having rights and duties. Now it is used in different
senses in different disciplines. In modern time the word has been
used in the wider sense it includes not only human being but also
associations, gods, idols, corporations, etc. as well. But there may be
living persons, who are not treated as “person” in law because they
are not capable of having rights and duties such as slaves and in
2 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Hindu law an ascetic ‘sanyasi’ who has renounced the world leave far
from the home.
Definition of Person:-
Many definitions of Persons, in different ways have been given by the
various jurists, as follows;
Salmond:-
According to Salmond “A person is any being whom the law regards
as capable of rights and duties. Any being that is so capable is a
person, whether a human being or not, and no being that is not so
capable is a person even though he be a man.”
Savigny:-He defines the person as the subject or bearer of right.
Gray:-
According to Gray, a person is an entity to which rights and duties
may be attributed.
Austin:-
According to Austin, the term “person” includes physical or natural
person including every being which can be deemed human.
Section 11 of IPC:-
According to Section 11 of the IPC the term ‘person’ includes any
company or association, or body of persons, whether incorporated or
not.
Classification of Person:-
Persons can be defined into two categories
(a) Natural Persons (human being), and
(b) Legal or Artificial or Juristic Person.
There are some natural persons who do not enjoy the status of legal
persons or person and vice-versa.
Natural Person:-
A natural person is a person (in legal meaning one has its own legal
personality) that is an individual living human being. A natural person
is a being to whom the law attributes personality in accordance with
reality and truth, and also who is regarded by law as having rights
and duties. In order to be a natural person in law, a human being
must satisfy two conditions namely,
a.He must be living human being and
3 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

b.He must be recognized by the state as a person and he must not be

a slave in the absolute control of his boss or master or otherwise
civilly dead as a monk who has renounced the world.
Legal Person:-
The word ‘person‘ is derived from the Latin word ‘persona’. It
denotes not only human being but anybody or anything which
permitted to assert legal claims or subjected to legal duties. From the
legal aspect, the mask of personality does not necessarily have to be
worn by human beings. Legal persons are created artificially and law
recognized them as a legal person. They are persons only in the eye
of the law not in general. They are also created by legal fiction and
therefore called as fictitious also. They are called various name like
fictitious, juristic, artificial, or moral etc.
For example in law idiots, dead man, corporations, companies, idols,
etc. are treated as legal persons.
Sr.
No. Natural Person Legal/Artificial Person
Legal Person is being, real or imaginary
Natural Person is a human being whom the law regards as capable of
1. and is a real and living person. rights and duties.
He has a power of thought, speech, Legal Person has no such power of
2. and choice. thought, speech and choice.
He is also a legal person and
accordingly performs their Legal person perform their functions
3. functions. through natural persons only.
These are not considered as Natural But unborn, dead man, idiots,
person; unborn, dead man, and corporations, companies, idols, etc. are
4. lower animals etc. treated as legal persons in law.
Legal person can live more than 100
years even for an indefinite period. Like
Natural person can live for a limited “East India Company” was established
period. As per general presumption, in sixteenth-century in London, and
5. he cannot live more than 100 years. now still is in existence.
In older law, slaves were not
6. Slaves were also natural persons. recognized as persons.
4 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

There are different varieties of legal

persons, like Corporations, Companies,
There are no different varieties of a Universities, President, Societies,
7. natural person. Municipalities, Gram Panchayats, etc.

2. Evaluate Sociological School of law by emphasizing Roscoe Pound’s social

engineering.

Answer :-

Social engineering by the Roscoe Pound Sociological School

Introduction:- Man is a social animal and society is needed to live life, work and
enjoy life. A group of individuals forms a society. Society has become an
indispensable condition for human life to develop its personality. Therefore,
society and human life always go hand in hand. Every human being is also born
with certain desires and expectations which are inherent in nature. From
childhood to old age, every human being expects his wish to be fulfilled, for which
a conflict of his desires or claims arises, which falls under the term of interest. It is
impossible to fulfill all the desires of man. Hence the concept of social engineering
has come up to fulfill the desire of maximum human beings for the welfare of
society and which was formulated by Roscoe Pound.
The Concept of Social Engineering:- Roscoe Pound was one of the greatest
leaders of the sociological school of jurisprudence. He introduced the doctrine of
“social engineering” which aims to build an efficient structure of society resulting
in the satisfaction of maximum wants with the minimum of friction and waste.
This involved a rebalancing of competing interests. According to Pound,
sociological jurisprudence should ensure that lawmaking, interpreting and
applying law take account of social facts. Pound linked the lawyer’s work to
engineering. The purpose of social engineering is to build as much of a scientific
structure of society as possible, which requires the satisfaction of the maximum
of wants and with the minimum of friction and waste. It is the job of a jurist to
assist the country by identifying and classifying interests that are protected by
law.
5 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Roscoe Pound’s social engineering theory is an American correlation to the

interests of German jurisprudence. Roscoe Pound described the work of modern
law as social engineering. Social engineering refers to the balance of competing
interests in society. He observed: “Law is the body of knowledge and experience
with the aid of which a large part of social engineering is carried on. It is more
than the body of rules. It has conceptions and standards for conduct and for the
decision, but it has also doctrines and modes of professional thought and
professional rules of art by which the precepts for conduct and decision are
applied and given effect. Like an engineer’s formulae, they represent experience,
scientific formulations of experience and logical development of the formulations,
but also inventive skill in conceiving new devices and formulating their
requirements by means of a developed technique.”
Jurisprudence thus becomes a science of social engineering which means a
balance between competing interests in society. Pound assigns the jurist with a
commission. He follows a method that a jurist would follow for social engineering.
He must study the real social implications of legal institutions and legal principles,
study the means of making legal rules effective, a sociological study in
preparation for lawmaking, a study of judicial method, a sociological legal history.
Pound’s theory that interest is the main subject of law and the act of law is the
satisfaction of human wants and desires. It is the function of law to make a
‘valuation of interests’, in other words, to make a selection of socially more
valuable interests and to secure them. All this is nothing more than an
experiment. That is why Prof.C.K.Allen describes Pound’s approach as
‘Experimental Jurisprudence’.
Interest Theory:- To understand their real theory, one need not deviate from the
wealth of information, which is worth more than half a century of academic work.
Pound’s real contribution to the school of sociopolitical jurisprudence is indeed in
his discussion of “legal interests” and “jural postulates”.
Legal Interest:- According to Pound, there are three categories of legal interests,
namely private (individual), public and social interests.
Individual interests are “claims or demands or desires immediately involved in
personal life and are vocal in the title of that life.” Individual interests are
emphasized for personal life titles. This logically leads to the fact that as these
interests by and large only involve the individual, interests fall within the purview
of private law, although in actual equilibrium this is a generalization that may not
always be true.
6 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

The public interest is “assertiveness in a politically organized society and the

claims or demands or desires embodied in life in the title of that organization.
They are generally regarded as the claims of a politically organized society
thought of as a legal entity.” These types of interests are articulated in the title or
for a politically organized society. Political interests can be generalized within the
purview of public law including criminal laws, although there is clearly an overlap
with personal interests.
Social interests were originally included by Pound as a separate and important set
of interests under which they were described as the claims or demands or desires
involved in social life in a civilized society. It is not uncommon to regard them as
claims of such a social group. These interests have been regularly associated with
the concept of security. Thus, an important part of protection is for society to
enjoy an organized legal system within a political organization, which may also fall
in the public interest because a political organization requires the existence of
some legal control that can be only provided by the legal system. This issue
obscures the difference between public and social interests and the Pound
himself points to the issue.
The three types of interests are differentiated so that they are balanced against
each other, which is the aim of sociological jurisprudence. However, Pound did
not really insist on having these interests completely separate from each other. As
described above, there is a level of distinction while the overlap between
interests is also evident as they are ultimately three perspectives of a set of
interests that exist in terms of unity and differentiation.
Criticism of the theory:- Despite Pound’s great contribution to sociological
jurisprudence and his emphasis on studying the actual work of law in society, his
theory suffers from some shortcomings. The Pound’s theory of social engineering
has been criticised on various grounds.
It has been argued that the classification of interests by the Pound is in the nature
of a catalog, in which additions and changes must be made continuously that are
neutral in relation to the value and priority relative to the neutral value. Pound’s
theory of social engineering has been criticized for its use of the term engineering,
which equates society to a factory like a mechanism. Law is a social process rather
than the result of applied engineering. It is also not right to equate society with a
factory because the former is changing and dynamic in nature while the latter is
more or less stable. Again, Pound’s emphasis on engineering ignores the fact that
law evolves and develops in society according to social needs and wants that for
7 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

which law can develop in society according to social needs and for which either in
law approval or rejection may occur.
A general criticism against Pound’s theory is about his use of the word
‘engineering’ because it suggests a mechanistic application of the theory to social
needs, the term “engineering” is used by Pound for the metaphor to indicate the
problems that law has to face, the objectives to be met and the method one must
adopt for this purpose.

3. What are the different sources of law ? Explain how legislation is a superior
source over precedent ?.

Answer :-

Sources of Law :-

Legislation :- Legislation is a source of law which includes the declaration of legal

standards by the competent authority. The legislature is the direct source of the
law. The legislature makes new laws, amends old laws and repeals existing laws in
all countries. In modern times, it is the most important source of law making.

Precedent :- The precedent is one of the sources of law. Judgments rendered by a

number by a number of learned jurists become another important source of law.
When the absence of a legislature at any given time arises under changing
conditions, judges depend on their own sense of right and wrong and settle
disputes. Such decisions become the authority or guide for subsequent cases of a
similar nature and they are called precedents. Precedent is, in a loose sense, it
includes merely reported case law which may be cited & followed by courts. In a
strict sense, that case law which not only has a great binding authority but also be
followed. Precedent is an earlier event or action that is regarded as an example or
guide to be considered in subsequent similar circumstances. A precedent cover
everything said or done, which furnishes a rule for subsequent practice. A judicial
precedent is judicial to which authority has in some measure been attached.
8 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Customs :- A custom is a social behavior established in a community. It is a rule

which, in a particular family or in a particular county or in a particular region, class
or tribe, has long had the force of law. It was established by long term use.
According to Salmond, custom is the legal source of law. According to him,
custom is the embodiment of the national level and national conscience as the
principles of justice and public utility.

Precedent and Legislation

➢ The legislation has its source in the process of law which is basically
enacted and enforced by the State while the precedent has its origin in
ancient and historic judicial pronouncements.
➢ Legislation has an authoritative force on courts by the assembly. However,
precedents are made by the courts themselves.
➢ Legislation signifies formal declaration of law by the governing body
though precedents are acknowledgement and use of new standards of law
by courts in the administration of equity, justice and good conscience.
➢ Legislation is ordered before a case emerges. However, the precedent
appears simply after the case has developed and taken for the choice of the
court.
➢ Legislation is basically of an exhaustive structure while the extent of legal
precedent is restricted to comparable cases as it were.
➢ Legislation is commonly and generally forthcoming while precedent
is retrospective in nature.
➢ Legislation is announced or distributed before it is brought into power, on
the other hand, precedent comes into power on the double, i.e. when the
choice is articulated.
➢ Legislation is finished with the goal of the lawmaking process yet it isn’t so
on account of the precedent. The precedent which incorporates ratio
decidendi and obiter dicta are expected to settle a particular contest on the
purpose of law once for all.
9 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

➢ It isn’t hard for people, in general, to realise the law instituted by

lawmaking body yet the precedent dependent on the case law isn’t
effectively known to the general population. Now and again, the attorneys
who manage law are themselves oblivious about the current case-law.
Therefore it makes a precedent of an ambiguous nature.
➢ Legislation includes law-production by deductive strategy while case-law is
made by resorting to an inductive technique.

Conclusion
Legislation is therefore regarded as the most important source of law in the
prevalent times. Hence it is considered to be the codified form of law which is
commanded by the sovereign to the common masses, and it becomes a
predicament situation to regard legislation as the authoritative source of law.

Legislation is one of the foremost and most important source of law in today’s
world. Most countries in today’s world regard legislation as an essential source of
law and follow this system of lawmaking. Although some lacunae and loopholes
are there which exists in the present form but then too the difficulties such faced
are relatively less than that faced from the other sources of law viz. custom and
precedent as legislation as a source of law tries to bring uniformity by avoiding
the ambiguity.

4. Rights and Duties are Correlative.

Answer :-

Definition of Rights and Duties

Legal Right – These are the rights which are conferred by the law of the land to
the people.
Salmond defines rights as “A right or an interest recognised and protected by a
rule of right. It is a right, respect for which is a duty and disregard of which is a
wrong.” Rights are an indispensible unit in a society. It is something which you do
or abstain yourself from doing in order to favour some other person’s right.
10 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Legal Duty – It is termed as an obligation which arises out of some law. These are
the responsibilities which ask us to act according to law. Correlation of rights and
duties has always been a debatable topic. There are different theories
propounded by different scholars.
Correlation between Rights and Duties
The two most important views regarding whether the rights and duties are
correlated or not are Salmond’s view and Austin’s view.

According to Salmond “no right can exist without any corresponding duty and vice
versa.” He believed that every duty which is being performed is in respect of a
correlated right attached to it.

On the Contrary what Austin has to say is that all the types of duties are not
similar and they are divided between relative and absolute duty. Relative duties
are the one which have corresponding rights whereas Absolute duties are the one
which are independent and have no rights correlated to them. For example, not
to commit suicide, is one of your absolute duty, there is no corresponding right
here.

According to Austin there are a bunch of duties which fall under absolute duties.
Such as duties to self, duties to sovereign etc. These are certain duties which are
to be followed and have no corresponding relations with rights. But Austin’s view
has been criticized a lot lately. Salmond has concluded that duties towards self
becomes part of criminal law and thus becomes legal duty and duties to
sovereign/state are always corresponding to the rights which are granted to us by
the states.

And The most accepted view regarding rights and duties over the time is that they
are necessarily correlative. They are the two most inevitable components existing
together in present day society.

➢ As we can describe a right as a power or privilege conferred by law which

people enjoy and on the other hand duty is a burden imposed by law which
commands obligeance for the good of society. And in order to enjoy a right
properly there is a need for other people to consider and respect it. Hence
11 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

in this way we can say that enjoyment of right by one person grants duty on
another person to respect it. Thus they work in corollary. They act as two
phases of a single coin. For example if the state has guaranteed right to life,
the
➢ Rights act as an interest and legal rights become legal interests and these
legal interests are backed by law and in this case a duty is imparted on law
to protect these rights.
➢ The state guarantees certain rights to all of its individuals to promote
welfare of the society and protection of such rights is the state’s duty. Also
when state is guaranteeing rights it becomes a corresponding duty of the
citizens to respect the state and do not create hindrance in the functioning
of state. It becomes an individual’s duty to serve the state in his whole
capacity.
Correlation between Rights and Duties by Prof. Laski
Thus in different forms Rights and Duties are correlated. To define the
correlativity, Professor Laski has created a four fold connection between Rights
and Duties.

My rights implies your duty

Individuals have their rights given to them and these rights involve corresponding
duties from others. For instance, if I have the right to life then every other
individual is duty bound to protect my life. Another example is that I have the
right to live in a safe and clean environment and every other person has a duty to
respect that right of me.

My right imply my duty to admit a similar Right of others

The way others are duty bound to respect and protect my rights. I am also duty
bound to do the same for others because others also have the same rights.

Rights should be exercised to promote better good

The way of exercising my rights should be in a way that it does not violate the
laws and conventions of the society. Thus it becomes the duty of an individual
towards the entire society. For example my right to practice religion freely cannot
be used by me to incite communal hatred.

State has guaranteed us rights, so we have duty towards state too

12 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

The individuals are ultimately under the duty to protect and respect the interests
of the state as the state is the agency which has provided all the rights to the
individuals.

Thus from the entire analysis that we have done in this article we can conclusively
say that both rights and duties always go hand in hand and it is impossible to exist
in a society where they cannot coexist. Thus, correlation of rights and duties is a
very important for holistic and entire development in any society.

5. Expound the Pure theory of Law.

OR

Write a critical note on Kelsen’s pure theory of law.

Answer :-

Introduction :-

Generally, there is a system of laws, rules, and regulations which are

implemented through social institutions to operate human behavior. Although,
the word “law” has no universally accepted definition. Laws can be made by law
legislation through legislation resulting in statutes, the executive through decrees
and regulations, or judges through binding precedents.
The idea of a Pure Theory of law was propounded by the formidable Austrian
jurist and philosopher Hans Kelsen (1881-1973). Kelsen began his long career as a
legal theorist at the beginning of the 20th century.

Kelsen theory stands at the same level and has a similar importance to Austin’s
theory. Kelson developed his theory on law and made a great contribution to
jurisprudence. Positivism was redefined and redefined by Kelsen’s pure principle
and is part of analytic positivism and parcel. Kelsen developed his theory on a
theoretical and philosophical basis.
13 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

According to Kalson, the weather of positivism was sown by natural lawyers like
Stamler, not positivists. Stambler invents the concept of purity. The concept that
the law would be pure from any other investigation such as sociological, political,
historical, logical, etc. reflects the purity of the law. The law will not be based on
all those components, deprived, connected or mixed. Thus, according to Kelsen,
“the law will stand on its own.”

The principle was proposed :- According to Kalson, laws are scattered in the
society which creates ambiguity in the source of the law. There is a whole variety
of laws and regulations. The laws have scattered which have created the
inequality of the class. There is a kind of chaos in the legal system. Therefore,
Kelsen went to develop his pure principle of law to achieve uniformity.
Object :- The objective of this story is to become the homogeneity of laws and the
legal system of laws is scattered and it is difficult to find the actual source of the
law. Kelsey rejected Austin’s proposal to set up a superior authority (sovereign) as
a source and he interpreted the pure principle which is necessary to achieve the
order of symmetry in the legal system. So the source of the law can be traced. The
validity of the law can be fixed on the basis of pure principle.

Hans Kelson :- Hans Kelson (d. 1973) was an Austrian jurist, legal philosopher and
political Philosopher belonging to a legal positivism school of thought. Roscoe
Pound appreciated as Kelson’s “undoubtedly the leading jurist of time.” Kelsen is
considered to be one of the pre-eminent jurists of the 20th century. Kelsen
became famous due to his pure theory of law and the doctrine of Pure law.

His book, entitled “The Pure Theory of Law”, was published in two editions, one in
Europe in 1934, and a second extended edition after he had joined the faculty at
the University of California at Berkeley in 1960.

Key Features of Kelsen’s Pure Theory

1. Law as Science :- Kelsen tried to present a theory that could be attempted to

change Law in science, a theory that could be understood through logic.

2. As a positive law :- The pure theory of law, Kelsen introduces his theory as a
theory of positive theory. This principle of positive law is then presented by
Kelson as a hierarchy of laws that begins with one basic norm, i.e. Grundnorm ‘,
where all other norms are related to each other either being inferior norms.
14 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

3. Law “As it is” :- Kelsen emphasized that analysis should focus on the law as ‘it
is’ in fact laid down, not as ‘it ought to be’.

4. Law and morality :- Kelsen’s strict separation of law and morality is an integral
part of his pure theory of law.

5. The theory of law should be uniform :- According to Kalsen, the theory of law
should be applied at all times and in all places.

6. Static Aspect of Law :- Kelsey distinguished the static theory of law as the
dynamic theory of law. The static theory of law represented the law as a hierarchy
of laws where individual laws were related to each other either being inferior, the
one to other, or superior with respect to each other.
Critical Analysis :-

1. The theory of Kelsen suggests that Grunderm is the concept of the Constitution
that ought to be followed. The Constitution of a country is a sociological, political
document and therefore Grundnorm is not pure.

2. Kelsen also said that the law should be kept free from ethics/morality. A
general question should be raised here, whether it is possible to keep the law free
of ethics/morality? Kelsen insisted on the law to be effective and thus he
accepted indirectly ethics as a part of effectiveness.

3. Kelsey attempted to change the law into a science, a theory that could be
understood through logic, but on the other hand, he emphasized the validity of
the Grundnorm to “assumed”, rather than based on some “logic”.
4. Kelsen tried to find the law and legal norms in a middle realm between
absolute ethical values and social facts. Therefore, rejection of the relevance of
ethics idea makes the legal science sterile and useless and rejects the factual
nature of law separates it from reality.

Conclusion:- Hans Kelsen is one of the most influential legal philosophers of the
last century have contributed to answering some basic questions about the law.

The first of these is related to the theories of law, which should be on the law, on
one hand, and to the other hand, for the institutions, practices, and works of our
society.
15 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

The second aspect of Kelsen’s theory is that the whole system is interconnected
to each other as a hierarchy of norms with each other and a basic norm stands on
top of this hierarchy, which is called Grandnorm, which is the highest order, and
the validity of this Grundnorm is to be supposed. All other norms are their
derivatives the legitimacy of this Grundnorm, and no one can question the validity
of this Grundnorm.

Another aspect of Kelsen’s theory is that it presents us with a dynamic legal order
instead of just a static. Law is organized through the maintenance of the system
stability through the broadness and simplification of its various parts principles
and ideological compartments and, in a nutshell, though tending to become a
logical system, a perfect and complete logical system.

6. Give an account of concept of Obligations.

Answer :-

Concept of Obligations :-

Salmond defines obligation in the legal sense as a proprietary right in personam

or a duty which corresponds to such a right. Professor Paton also describes it as
that part of the law which creates rights in personam. Savigny defines obligation
as “ The control over another person, yet not over his person in all respects ( in
which case his personality would be destroyed ), but over single acts of his which
must be conceived of subtracted from his free will and subjected to our will and
subjected to our will “. According to Kant it is “ the possession of the will of
another, as a means of determining it, through my own, in accordance with the
law of freedom, to a define act “.

Sources of Obligation :-

Obligation arises from any one of the following sources namely.

1. Contractual Obligation ( Obligation ex contract ).

16 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

2. Delictual Obligation ( Obligation ex delicto ).

3. Quasi-Contractual Obligation ( Obligations quasi ex-contracts ).

4. Innominate Obligation.

I. Contractual Obligation ( Obligation ex contract ) :-

When a contract is entered into, it results in/creates/imposes obligation on both

the parties to the contract. For instance, when a seller and buyer enter into an
agrrement/contract for sale of an immovable property., the seller has an
obligation to sell. Similarly, the buyer also will have an obligation to buy/purchase
the property. Therefore, contract is an important source of obligation since it
creates rights and duties between the parties. The parties created under the
contract are known as “ Rights in personam “.

2. Delictual Obligation ( Obligationer ex delicto or tortuous obligation ) :-

Delictual obligation arises from tortuous liability i.e. when a person commits a
tort. Tort is a civil wrong. Salmond defines a tort as a ‘ civil wrong for which the
remedy is an action for damages and which is not solely the breach of a contract
or the breach of trust or any other merely equitable obligation ‘.

3. Quasi-Contractual Obligation ( Obligation quasi ex-contracts ) :-

The term ‘ Quasi ‘ is a Latin word, which means “ as if “ or “ Similarly. Quasi

contract is not a real contract entered into by parties intentionally. It resembles a
contract, in which law imposes an obligation on a person to perform an obligation
on the ground of equity. Quasi contract is based on the principle of equity that “ A
person shall not be allowed to enrich himself unjustly at the expense of another “.
In other words, a person should not receive or accept any benefit unjustly. If so,
he has an obligation to give it back to the right owner. Such obligation is called
Quasi-contractual obligation.

Sometimes, law, in the absence of a contract, but on the principle of equity,

imposes an obligation on a person. Such obligation is called ‘ Quasi contractual
obligation ‘. It is similar to a real contract entered into between the parties.
17 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

4. Innominate Obligation :-

These are residuary obligations which do not come under any of the above heads
and are residuary in nature. These are called by Salmond ‘ Innominate obligations
‘.

Kinds of Obligations :-

Obligations may be classified under the following heads namely.

1. Sole Obligation and

2. Solidary Obligation

➢ Several
➢ Joint and
➢ Joint and Several

1. Sole Obligation :-

Where in an obligation there is one person on each side, such an obligation is

called ‘ sole obligation ‘. For eg. A promise B to pay Rs. 5,000/-. Here there is only
one creditor and one debtor. The obligation is called sole obligation.

2. Solidary Obligation :-

A solidary obligation is one in which two or more debtors owe the same thing to
the same creditor. Solidary obligations are sub-divided into three classes namely –

➢ Several solidary obligation

➢ Joint solidary obligation and
➢ Joint and Several solidary obligation
18 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

7. Write a note on the school of natural law.

Answer :-

Natural Law School

Abstract

Natural law is known as a higher law or the law of nature which has been
continually dominating the entire basis of politics, Law, Religion and social
philosophy. Natural law is said to be these sets of unwritten law which contains
the principles of ought as revealed by the nature of man or reason or derived
from god.

Natural law is universal and common to all humanity. It goes beyond the
difference in culture, religion and various formulation of the moral law. The
Articles like Article 14, 19 and 21 has been widely interpreted in the India scenario
especially by the Indian judiciary due to largely impact of natural law theory.

Natural law (School of Jurisprudence)

1. Natural law is a philosophy of law that forces on the law of nature. This
school of jurisprudence represents the belief that they are inherent laws
that is common to all societies.
2. Natural law is also known as the moral law Divine law, the law of God, law
of Reason, law of nature, Universal law and unwritten law.
3. The school of thought tells us that the law is rational and reasonable.
Natural law proposes that laws are a logical progression from morals.
Therefore, actions that are considered to be morally wrong will be against
the law.
4. The sources of Natural law was that-
•
•God
• Nature
• Reasons
5. The classification of Natural law school in to four parts are:-
(A) Ancient period/classical period
19 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

(B) Medieval period/middle ages

(C) Renaissance period

(D) Modern period

(A) Ancient period/classical period

The story of natural law behind the philosophers of ancient Greece. The Greeks
traditionally regarded law as being closely related to justice and ethics. Greek who
were the first distinguished law from blind faith?

The ancient period is further divided into two periods that are:

1. Greek period

The main authors of Greek period are as follows :-

Heraclites ( 530-470 B.C)

The foundation of Natural law philosophy was by the Heraclites and it also gives
three aspects_ unlimited goals, stages and reason are important for the natural
law.

Socrates (470-399)

According to Socrates “Law is a product of correct reasoning”1. ‘Human insight’

that a man has capacity to distinguish between good and bad and is able to
appreciate the moral values. This human ‘insight’ is the basis to judge the law.

Plato (427-347 B.C )

20 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

It is a supporter _ minimum governance policy means “ultimate” justice is

discoverable through reason. Plato also supports the Socrates theory of Natural
law. According to Plato, we live in an orderly universe.

Aristotle (385_322 B.C)

It believes that Natural law has elements of reason, justice and ethics mean that
“Universal and immutable standards discoverable through reason and man-made
law should conform to these standards. According to him, man is a part of nature
in two ways: Firstly he is the part of the creatures of the god and secondly, he
possesses insight and reason by which he can shape his will.”2

2. Roman period

The Natural law philosophy found on expression in the Roman legal system
through the division of Roman law into three distinct divisions _ jus civil, jus
gentiam and jus natural. It also gives natural law is equal to universal law and the
code of gaudier also.

The main author Roman periods as follows :-

Cicero

He said the law is the highest reason, implanted in nature which commands what
ought to be done and forbids the opposite. This reason when firmly fixed and fully
developed in the human mind is law.

(B) Medieval period/Middle ages

It is a time of catholic philosophers or logicians of the Middle Ages gave a new

theory of ‘Natural law’3. Though they too gave it the logical basis. They departed
from the orthodoxy of the early Christian father. Their views are more logical and
systematic.
21 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

The main authors of the medieval period are as follows :-

Augustine (354-430 A.D)

It believes that what are states without justice but robber hands enlarged (De
civitas Dei) (The city of god). It also believes that natural law as a part of natural
foundation of Christianity due to its origins in the old Testament early church
father.

Thomas Aquinas (1226-1274)

It believes that ‘unjust’ law deserve no obedience’ means that man finds out
natural law by applying ‘reason’ and studying scriptures of the revelation of God.
St. Thomas Aquinas gave four-fold classification of law’s namely :-

• Law of God or external law

• Law of nature (which revealed through nature)
• Human law (which we now called positive law
• Law of divine or the law of scripture
(C) Renaissance Period

It is revival of learning as scholar re-studying Greeks and Roman instead of relying

on scriptures, they looked at the purpose of human life itself to extract Natural
law principles

The main authors of Renaissance period are as follows :-

Hugo Grotius (1583-1645)

It is known as father of international law. Grotius built his legal theory on ‘Social
Contract’.4 His view in brief is that political society rest on a ‘social contract’ It is
the duty of the sovereign to safeguard the citizens because the form was given
power only for that purpose.
22 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Thomas Hobbes (1558-1679)

It was a supporter of absolute power of the ruler and subjects had no right against
the sovereign.

John Locke ( 1632- 1704)

John Locke too recognized the existence of certain inalienable natural rights. He
categorized them as ‘’life, liberty and estate (property) Locke’s social contract is
based upon liberalism.

Rousseau (1712- 1778)

According to Rousseau, “man by nature never thinks and he who thinks is a

corrupt creature.” He believed that the state of nature was an idyllic state where
in man did not reason things out and lived in absolute liberty with the free mind.

Immanuel Kant (1724-1804)

He emphasized that the basis of social contract was ‘reason’ but Kant gave a
sharp distinction between natural law rights and acquired rights and recognized
only one natural right that is the right to freedom.

Hegel (1770-1831)

Hegel also plays a vital important role in natural la w school. School of

Hegelianism Aristotle of modern times. It is the most prominent philosophy of the
philosophical school jurist and it also give their theory in which they said that
state and law is a reason of growth of the human logic.

(D) Modern period

The modern period is further divided into two that is :-

23 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

1. 19th century unfavorable to natural law.

The decline of natural law theories took place in the 18th- 19th Century with the
advancement of empirical methods of study and scientific behavior. Natural law
theories were denounced primarily because its source was said to be a divine
entity. The profounder Austin rejected Natural law on the ground that it was
ambiguous and misleading and mercilessly criticized the natural law school as
“simple nonsense, natural and imprescriptible right rhetorical nonsense upon
stilts.”

2. 20th century the Revival of Natural

Towards the end of the 19th century, a revival of the natural law theories took
place. It was due to many reasons :-

The reaction against 19th-century legal theories which had exaggerated the
•
importance of ‘positive law’ was due and theories which over emphasized
positivism failed to satisfy the aspiration of the people because of their
refused to accept morality and reason as an element of law.
• Secondly, it was realized that abstract thinking or a priors assumption were
not completely futile.
• Thirdly, the impact of materialism on society and the changed socio-
political condition compelled the 20th-century legal thinker to look for
some value-oriented ideology which could prevent general moral
degradation of the people.
The main authors of the 19th century the Revival of natural law are as follows :-

Rudolf Stammler (1856 – 1938)

Stammler defined law as “species of will others regarding self-authoritative and

inviolable for him a just law was the highest expression of man.”

Kohler (1849 – 1919)

24 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Kohler defines law as “the standard of conduct which in consequence of the inner
impulse that urges upon men towards a reasonable from of life, emanates from
the whole and is force up on the individual”

HLA Hart ( 1907 – 1992 )

Hart, attempted to restate a national law position from a semi- sociological point
of view. Hart points out that there are certain substantive rules which are
essential if human beings are live continuously together in close proximity. “These
simple fact constitute a case of indisputable truth in the doctrines of natural law”.

Natural law Theory and Fundamental Rights

Articles – 14, 19 and 21

In Indian law especially in the Indian constitution, there has been a large impact
of 19 and 21 has been widening widely interpreted in the Indian scenario
especially by the Indian judiciary. Moreover, the Fundamental Rights conferred
under the Indian Constitution have a large base in natural law theory. Since the
age of Greeks all the thinker of those theorists under natural law theory have
influenced Indian law to a large extent, not only Fundamental Rights but even
many more provision under the Indian Constitution are influenced by the natural
law theory. This could be found through the case laws:-

Case 1:- Maneka Gandhi v. Union of India

In this case, the meaning and content of life and personal liberty under Article
21 came up for consideration and the Supreme Court held that the law
established by the state should be just fair and reasonable.

Application of Natural Law theory

If one analysis the Judgment, one would find a reference to Locke’s theory
whereby the natural right of men such as the right to life, liberty and property
25 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

remained with him, so in the Maneka Gandhi case also the Natural law theory
principle could be evolved.

Case 2 :- Indian express newspaper v. Union of India

In this case, the theory of Rousseau has been applied, the Rousseau’s theory of
freedom and liberty was said to be the natural right of every citizen by the
Supreme Court which also been conferred upon under Article 19.

Case 3 :- ADM Jabalpur v. Shivakant Shukla

It is also known as the Habeas Corpus case. It is one of the important case when it
comes to rule of law. In this case the question was whether there was any rule of
law in Indian Constitution apart from Article 21. This was in the context of
suspension of enforcement of Articles 14, 21 and 22 during the proclamation of
emergency. The answer is even in absence of Article 21 could not be deprived
without authority of law.

Application of Natural law theory

In this case Stammler’s four point principle with special reference to the
‘’principle of respects’’ the content of the person’s violation must not be against
the arbitrary will of another. Thus in this case the natural law theory has been
applied by the Indian judiciary.

8. Law as the upholder of moral order of society. How far the statement is true ?
Comment.

Answer :-

Law and Morality

INTRODUCTION
26 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Law and morality are both too uncertain terms. many jurists, a philosopher from
ancient Greek time to modern time tried to define these to terms. These two
terms have a vast sphere. the reason for not finding any definite meaning of these
terms can be that both these terms are dynamic in nature, with the time,
situation and place meaning and value of these terms keep changing.

Law :- In its literal meaning law is the command of a sovereign authority, which
talks about what kind of behaviour is expected of citizens, what to do what not to.
Law helps a state to establish proper order in society and also as a tool to protect
the rights of citizens. We can say the law is a set of rules and regulations to
regulate human behaviour in a civilized society. Law is an instrument for the
discharge of justice. In ancient times law was taken divine originated set of rules
to regulate human action.
Modern jurists gave a various definition of law-
According to Salmond law “as the body of principles recognized and applied by
the state for the administration of justice”.
Kelson defined law as “law is characterised no as an end but as a specified means,
as an apparatus of compulsion to which, as such there adheres no political or
ethical value, law apparatus whose value derives rather from some end which
transcends the law’’
All of the definition have common elements in them like a law making authority,
set of rule and regulations, an instrument of justice, protection of rights of the
citizen, a technique of social organization, central idea of law is what you doing is
should be accepted by the social group you are part of.
Morality :- In simple terms, morality is what kind of conducts are wrong and what
kind of conduct are correct. morality is a concept of right and wrong. And morality
has a wide sphere different human beings can have different moral principle on
which they judge a conduct. morality can be based on several things your religion,
culture, society, community, and your family values. So morality is subjective in
nature everybody has different moral values. for example, female genital
mutilation can be against the moral values of some communities and the same
time can be according to moral values of some other.so morality does not enjoy
that the independent status as the law. Morality is something an individual’s
personal
Notion but accordance to the social group he is part of. Man is a social animal and
can not live in isolation, this can be said reason for the foundation of moral
principals because if you are living in a social group your conduct should be
27 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

accepted, so this is situation where morality comes in picture, person living in

isolation not required to check his conduct on morality parameters.
The relation between law and morality.
law and morality both overlap sometimes, both of these cannot be exclusive but
sometimes something can be against the law but according to morality or
something against morals can be according to law.
For example, if a hungry needy person stole a piece of bread, if we see this
according to the law then stealing something is against the law but if we see this
situation according to morals then, it is right because the person was trying to
fulfil his fundamental need to keep his soul body together.
In another example a country refuse to give permission to refuges to take shelter
in that country to protect its citizens right and make a law for the same purpose,
it is against the morality because we should help the needy one but this is lawful.
the law is also an effective tool to enforce moral values and principal, for
example, every citizen should pay the tax for development of the sate but there
will be less number of taxpayers if there will be no law regarding this.in another
example when we are driving on road we should obey traffic rules to protect
others who also travelling with us, but if there will be no punishment regarding
this nobody will follow these rules only because of moral values.
The relation between law and morality can be understood by two theories of law
positivism theory and natural law theory.

Natural law theory :- according to this theory both law and morality are
connected. According to natural law theorist, human law is based on the principle
of morality, not on any human-made principles.
The term natural law. status of law under natural theory does not depend on only
acts, but also religion, custom, ethics. this theory talks about what ought to be.
natural law is inherent and not required any authority to impose it.
Positivism law theory :- according to this theory law is common of a sovereign
authority. a command of human beings for other human beings where the
previous one is more powerful and strong then other and enjoy the power status
and authority of the lawmaker is unquestionable, and according to the matter of
law it will decide what is right and what is wrong and if one not follow the law
there will be a punishment. Jeremy Bentham considered the first positivist
according to him law should be based on human experiences. The positive law
might set the standard for the actions that are required and for those which are
28 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

prohibited.
Historic case where the conflict between law and morality can be traced.
R v Dudley and Stephens
[Law and morality – the law knows no defence of necessity]
Three sailors and a cabin boy were shipwrecked and were adrift in an open boat
1600 miles from land. After they had been eight days without food, and six
without water, DD decided that their only chance of survival was to kill the cabin
boy and eat him, and this they did. Four days later they were picked up by a
passing ship, and on returning to England were convicted of murder.
Held: Necessity can never be a defence to murder. Their sentence of death was
later commuted to six months’ imprisonment.
Guilty
Oppenheimer v Cattermole
[law and morality- an unfair law should be given preference above morality]
Mr.oppenheimer was a German citizen and working as teacher there. He was
detained for a short time at the concentration camp at Dachau.and after that he
went to Britain and become British subject.german authorities determined to
make compensation to the employees of Jewish religious
communities.mr.oppenheimer was given that pension and one more pension also
awarded to him when he turned 65.
Now the question raised that he is liable to pay tax to the British government on
his pensions or not.if he is the only British citizen then he has to pay but if he is
also a citizen of Germany he can be exempted from this liability. the case first
decide by UK Special Commissioners for income tax
And held that according to German law1913, “hen there were no complications of
the countries being at war, which stated that a German lost their German
nationality if they acquired a foreign nationality without permission.” he lost his
German citizenship and liable to pay taxes.
Law and morality and current scenario
21st century still there are some issues where law and morality stand against each
other, sometimes law prevail morality and sometimes morality.

1.Section 377 of Indian penal code,1860 and morality

Section 377 of Indian penal code,1860 is related to homosexuality this section
criminalise all the sexual act which are not according to the nature as punishable
offence and prescribed punishment for the same, these acts include all the sexual
acts which are nonvaginal or not productive, because of this section the member
29 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

of LGBT(lesbian, gay, bisexual, transgender,) facing social discrimination because

of there different sexual orientation then what is normally accepted. If we see this
law from moral perspective every human being should be given equal rights to
choose the way they want to fulfil their needs. But law talks differently, here law
prevails the concept of moral principle.

2. Female genital mutilation

The practice of genital mutilation is practised in India by Dwoodi Bohra
community,
A Shia Muslim community originated from Yemen, settled in the 16th century in
India.
The main reason behind this practice is to follow shariat.
This is against the moral values this practice is very dangerous and always
practised by an untrained person, that not have any kind of medical expertise,
and because of these factors, the victim of this practice have to suffer physical
and mental pain.
Any touching of female genital parts other than medical purpose is a crime under
IPC and pocso act. something that is criminal cannot be essential practice, it is
against the dignity and privacy of women. Still, this practice is carried out in India.
3.Nikah halala and morality
halala is a term that is driven from word “halal” that mean something permissible
and according to law. nikah halala is part of the personal law of Muslim
community.in this practice if a husband divorced his wife, and after that, if he
wants to marry her again then for being eligible to re-marry her previous
husband. The woman first should marry any other man and then consummate her
marriage and after taking divorce from that person, she can marry her previous
husband.
This kind of practices always favour male members of a community, and should
be challenged for checking validity, this is against the general principle of
morality.
4. Refuges and morality
helping a needy one is a moral duty or according to moral principles. today some
countries in the word have more resources or some have not enough. So the
countries should help each other in this type of situation because of morality. but
what is happing right now is different picture, countries passing refuge entry
preventing law. The reason given is a threat to the nation’s security, draining of
resources and etc. for example the USA government banned entry of refuses from
seven Islamic countries.
30 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

5.National registration of citizen(NRC) and morality

lakhs of Indian’s name is excluded from NRC list in Assam. They can lose their
legitimate citizenship as an Indian citizen. if these citizens are part of declared
foreign(DF) group. On May 2, 2018, the State Coordinator of the NRC issued an
order to all Deputy Commissioners of respective districts of Assam asking to keep
the names of brothers, sisters and other family members of Declared Foreigners
(DF) pending.in other words, if a person is declared as a foreigner by a foreign
tribunal then the name of other family members, his siblings will be drop out
from NRC list. Since 1985, around one lakh (1,00,000) people have been declared
as foreigners. Approximately 20,000 orders of Tribunal (mostly ex parte, that is
issued without hearing both sides) have been set aside by different judicial
forums. However, there are still 80 thousand declared “foreigners”. Let’s assume,
on an average, a so-called “foreigner” has 4 siblings. That makes a total of three
lakh twenty thousand (3,20,000) siblings. Along with the declared “foreigners”,
this makes up a total of four lakh (4,00,000) people. The family members of those
4 lakh people will include their children and grandchildren. On an average at least
6 family members of each person (very liberal estimate considering higher fertility
rate among poor and illiterate people who have been declared as“foreigners”)
thus it makes over two million people! if we talk from the moral point of view the
citizens living for so long time and suddenly they are declared foreigners and
illegitimate, what will happen to their families? It is not a right thing to ask
someone to left a country or their home after a long time that they settled well in
their lives and contributing in countries progress but law view is something
different according to which it is illegitimate.

Conclusion
Whatever way the conduct of human being is governed either by moral principles
or by man-made law. They should be progressive in nature and should have that
power to differentiate between wrong and right. fundamental necessities of
individuals should not be affected by any type of law .law is an instrument to
impose moral principles effectively. The moral is an intrinsic phenomenon but the
law is external if someone is not following morality in his conduct there will be no
effect but if one disobeys the law there is punishment for the same.
31 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

9. What are the advantages and disadvantages of legislation and Precedent as a

source of law ?.

Answer :-

Legislation
The term "legislation" is derived from two Latin words, legis meaning law
and latum meaning to make, put or set. entomologically legislation means the
making or the setting of law. The legislation is a rule or body of rules passed by
the legislature which is binding on all individuals in the society. In other words,
legislation means an act or enactment passed by the legislature to regulate
human behavior.
Definition of Legislation –

Definitions of Legislation are as follows -

Salmond-
According to Salmond, "Legislation is that source of law which consists in the
declaration of legal rules by a competent authority".

Holland-
According to Holland, " the making of general orders by our judges is as true
legislation as is carried on by the Crown", but we confine ourselves to the use of
them term legislation in the sense which is commonly understood.
Austin -
According to John Austin, legislation includes an activities, which results into law
making or amending, transforming or inserting new provisions in the existing law.
thus "there can be no law without a legislative act.
precedent – it is a decision or action taken by judges that have occurred earlier
and act as guidance for similar situations or cases. It is a principle or rule that was
declared or laid down in a past legal case. It is advisory or binding on courts and
tribunals when a case with similar facts arises before it

Definition of Precedent

Gray – “A judicial precedent covers everything said or done, which furnished a

rule for subsequent practice”
32 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Salmond – Precedent is, in a loose sense, ‘it includes merely reported case law
which may be cited & followed by courts.’ In a strict sense, that case law which
not only has a great binding authority but must also be followed.

Austin – Precedent is “judiciary’s law”.

Bentham – ‘Precedents are judge-made laws’.

Keetone – Judicial precedent is a judicial decision to which authority has in some

measure been attached.

Advantages of Legislation -
1) Legislation is the best and most reliable source of law

2) Statutory law is rigid and applicable irrespective of the crime

3) The modern States give more importance to the legislation.

4) Legislation makes new law to the society.

5) By legislation, social control is possible

Disadvantages of Legislation -
1) Certain legislation abridges the rights of individuals and are referred to Judicial
Review.
2) It results in the amendment to the constitution and leads to conflict between
legislature and judiciary.
3) No scope for judicial discretion -
The judge has to apply the law as it is, and has to follow it. The law is taken as it is.
Sometimes it results into injustice because of other factors such as
social, economic and other circumstances are also to be considered while
deciding the case by the judge. On the other hand Precedent allows a judge to
give the decision on the merit of the case, without being rigidity tied down to
watertight rules of the enactment.
4) Rigidity-
Statutes are extremely rigid and have little scope for selective application; this
causes injustice in extreme cases.
33 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

5) Lack of clarity -
It is often said that statute laws are often worded in confusing language, certain
loopholes are oftenly seen. It gives scope for many suspectable meaning.
Numbers of errors and omissions are committed while connecting the law, which
makes a little sense to a common man. Whereas the Precedent is always found it
clear and simple word.
Advantages of Precedents

• Judicial precedent helps to prepare new statutory laws and will adjust
according to the changing conditions of the society.
• Judicial precedent helps the court system to save time on future cases and
increases convenience as a question once decided is settled.
• It creates a system where everyone dealing with a similar case will treat in a
similar manner, which leads to equality and fairness of justice.
• Binding judicial precedent establishes a regulation that helps to maintain
stability.
• It provides the judicial system a certain measures of flexibility.
• It provides cases which makes them more practical.
• It also acts as guidelines to decide upcoming cases.
Disadvantages of Precedents

• It is considered to be rigid to alter a precedent once followed.

• A judicial precedent imposes a foundation on lower courts to follow it,
which sometimes forces them to take lesser or harsher decisions than
actually required.
• There are many precedents regarding many cases which make it difficult to
implement the right precedent in the right case.
• Some situations are not recognized under precedent as they are not
considered into account.
• When a case is distinguished it is not mandatory to follow a precedent.
• It forces the system to look backwards instead of looking toward the future.
• This process can introduce unnecessary restrictions into the law.
34 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

10. Examine the difference between Possession and Ownership.

Answer :-

Possession

Salmond defines possession (in legal terms) as the continuous exercising of a claim,
to the exclusive use of an object or a thing constitutes possession of the object. In
simpler words, if a person has apparent control of an object and apparent power to
exclude others from the use of the object, then we can say he has possession.

It is a de facto relation between a man and an object. So a man can possess a thing
he doesn’t own. Say for example the possession of a property that he has leased
from someone (who will be the owner). And the opposite is also true. One can own
some object and not possess it.

Ownership

As per Salmond ownership can be described as the relation between a person and
any said object which forms the subject matter of this said ownership. Ownership
also consists of a complex web of many rights all of which are rights in rem, and not
merely rights against persons.

So ownership is actually the sum total of the rights of possession, the right of
disposition and even the right of destruction. There are six essential characteristics
of ownership as per the law. They are as follows,

• The owner has the absolute right to possession. It is immaterial if the owner in
actual possession of the object, as long as he has the right of possession.
• The owner has the liberty or the right to use and enjoy the benefits of the said
object. No one can interfere with his right to use the object he owns.
• Ownership also means that the owner has the right to exhaust the object
while using it.
35 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

• And he also has the right to destroy or alienate the object. This means he can
destroy or dispose of the object during his lifetime or via his will. This right is
sometimes restricted by law.
• Ownership is also for an indeterminate duration. Possession or the right to use
is for a limited period, but the ownership of an object is for an indeterminate
period of time.
• And finally, ownership is residuary in character. So for example, if the owner
leases the object, or gives it for use, etc. he still remains the owner.

Ownership vs Possession

Ownership Possession

Possession is more the physical

Ownership involves the absolute
control of an object. The possessor
rights and legitimate claim to an
has a better claim to the title of the
object. It means to own the object by
object than anyone, except the
the owner.
owner himself.

Ownership is the right of the owner

against the world indefinite in point As per the definitions, it is the
of the user, unrestricted in point of continuous exercise of a claim to
disposition or destroying and exclusively possess and use the
unlimited in point of duration over a object/thing.
thing

Ownership itself gives the owner the However, it does not indicate the
36 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

right to possession. right to ownership.

The transfer of ownership is a

Transfer of possession is fairly easier
technical and long process and
and less technical.
involves conveyance

Ownership is essentially a bundle of It is not a right, just a prima facie

rights, all rights in rem. evidence of ownership

11. Explain the significant difference between primary and secondary rules in
detail.

Answer :-

Primary and Secondary Rules

Legal positivism is that school of jurisprudence According to which the legitimate
sources of law are only the ones which are in written form. According to John
Austin laws is the command of the sovereign which is backed by sanction.
However, HLA Hart condemned this view, and he said, should be a completely
new framework for the law in the form of rules. He has made this criticism in his
essay named Laws as a union of the primary and secondary rule. However, HLA
advocates the view that for the normative aspect of the law there needs to be an
evolution of the concept of rules. According to him, rules are independent and
constructive; however, unlike the rules of the command does not describe what
happens; instead, it is more concerned with what is to be done, therefore draws a
distinction between primary rules and the secondary rules.
According to him, laws are the rules which forbid individuals to perform various
kinds of actions or impose various restrictions or obligations on the individuals.
37 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

The Primary rules are those rules which impose an absolute obligation on an
individual or abstain him from doing particular action; it is instrumental for the
generation of duties and obligations for an individual. According to HLA Hart, the
existence of primary rules in every primitive society is like a benediction for the
society. These primary rules govern the behavioural strand of an individual in
society as well as the conduct of an individual. They are obligatory in nature. For
example, the rules of criminal law exist for the punishment of crimes such as
theft, robbery and murder. The rule of torts forbids defamation. Similarly, the rule
of environmental law condemns the pollution of water bodies and the
environment.
However, with the evolution in the society and the wholesome development
taking place.
The primary rules were proving out to be insufficient for catering to the needs of
that dynamic society. Hence this led to the evolution of secondary rules, and this
is where the secondary rules came into the picture.
Secondary rules are the foundational rules of every just society. The secondary
rules are “power conferring” in nature. Hence in order to curb the insufficiency,
which was witnessed in the primary rules, the secondary rules were incorporated,
and these secondary rules were broadly categorised into three categories. The
pre-legal rules, the primary rules are cured by the set of three rules, namely "rules
of recognition", "rules of change" and "rules of adjudication".
Thus, HLA Hart proclaims that according to the rule of recognition, the recognition
of rules is not contingent on the command of the sovereign. However, according
to the rule of recognition, it should be recognised by the Legislature or the
Judiciary. However, the Constitution is placed at the apex position in the hierarchy
of rules of recognition. Judicial Precedents and Legislative enactments are the
other aspects which exist in the hierarchy of rules of recognition.
The rule of change confers the authority on the Judiciary by virtue of
“amendments” to bring about change in the laws corresponding with the dynamic
nature of the society.
The rule of adjudication confers the power to the judiciary. The judges are vested
with the power to adjudicate the matters of dispute. These rule of adjudication
also within its ambit contains the significant definitions of “court, jurisdiction,
judge, jurisdiction and
judgment.”
38 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

The pre-legal society, which consists only of primary rules, was subjected to 3
major drawbacks which were capable of being rectified only with the aid of fusion
of primary rules with the secondary rules. Such drawbacks were:
● Uncertainty :- regarding the meaning and scope of the primary rules, hence the
secondary rule of recognition helps in removal of this hindrance.
● Static :- primary rules were static in nature, and the secondary rule of change
removed this hindrance.
● Inefficient :- the primary rules are inefficient as there is lack of arbitration
which can be cured by the aid of the second rule of adjudication.
Examples of Primary Rules :-
● Criminal prohibitions.
● Rules of Tort.
● The right to freedom of speech of an individual.
● The environmental law rule which forbids the discharge of toxic substances in
water bodies.
Examples of Secondary Rules :-
● Rules of Contract law rules enabling the formation of a contract by the parties.
● The rules which allow the testators for creation of a will.
● The statute for the Supreme Court which authorities it to promulgate rules of
procedure as well as practice for the federal courts.
Conclusion
Hart emphasises the fact that primary rules and the secondary rules both must
coexist and go hand in hand. One without the other is incomplete and void. The
union of both these rules leads to the establishment of a sound legal framework
which strengthens the foundation of law and proves out to be an aid in
understanding the various sources of law. The primary rules are duty imposing,
and secondary rules are power imposing, and both are complementary to each
other either of the two cannot operate in complete isolation. Secondary rules
provide validity to the primary rules and help in the creation of the primary rules
and thus acts as a significant aspect for the existence of primary rules. Hence, in a
nutshell, the identification of the primary rules with the assistance and support of
the secondary rules marks the potentiality of a legal system.
39 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

12. Any Legislative control to the basic structure is non-law-Explain with case
material.

OR

Explain the significance of doctrine of basic structure with case material.

Answer :-

Introduction
The debate on the 'basic structure' of the Constitution, lying somnolent in the
archives of India's constitutional history during the last decade of the 20th
century, has reappeared in the public realm.While setting up the National
Commission to Review the Working of the Constitution (the Commission), the
National Democratic Alliance government (formed by a coalition of 24 national
and regional level parties) stated that the basic structure of the Constitution
would not be tampered with. Justice M.N. Venkatachalaiah, Chairman of the
Commission, has emphasised on several occasions that an inquiry into the basic
structure of the Constitution lay beyond the scope of the Commission's work.

Several political parties -- notably the Congress (I) and the two Communist parties
which are in the opposition -- have made it clear that the review exercise was the
government's ploy to seek legitimacy for its design to adopt radical constitutional
reforms thus destroying the basic structure of the document.

Much of the public debate has been a victim of partial amnesia as even literate
circles of urban India are unsure of the ramifications of this concept, which was
hotly debated during the 1970s and 1980s. The following discussion is an attempt
to chart the waters of that period rendered turbulent by the power struggle
between the legislative and the judicial arms of the State.

According to the Constitution, Parliament and the state legislatures in India have
the power to make laws within their respective jurisdictions. This power is not
absolute in nature. The Constitution vests in the judiciary, the power to
adjudicate upon the constitutional validity of all laws. If a law made by Parliament
or the state legislatures violates any provision of the Constitution, the Supreme
Court has the power to declare such a law invalid or ultra vires. This check
notwithstanding, the founding fathers wanted the Constitution to be an
40 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

adaptable document rather than a rigid framework for governance. Hence

Parliament was invested with the power to amend the Constitution. Article 368 of
the Constitution gives the impression that Parliament's amending powers are
absolute and encompass all parts of the document. But the Supreme Court has
acted as a brake to the legislative enthusiasm of Parliament ever since
independence. With the intention of preserving the original ideals envisioned by
the constitution-makers, the apex court pronounced that Parliament could not
distort, damage or alter the basic features of the Constitution under the pretext
of amending it. The phrase 'basic structure' itself cannot be found in the
Constitution. The Supreme Court recognised this concept for the first time in the
historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been
the interpreter of the Constitution and the arbiter of all amendments made by
Parliament.

The pre-Kesavanada position

Parliament's authority to amend the Constitution, particularly the chapter on the
fundamental rights of citizens, was challenged as early as in 1951. After
independence, several laws were enacted in the states with the aim of reforming
land ownership and tenancy structures. This was in keeping with the ruling
Congress party's electoral promise of implementing the socialistic goals of the
Constitution[contained in Article 39 (b) and (c) of the Directive Principles of State
Policy] that required equitable distribution of resources of production among all
citizens and prevention of concentration of wealth in the hands of a few.
Property owners -- adversely affected by these laws -- petitioned the courts. The
courts struck down the land reforms laws saying that they transgressed the
fundamental right to property guaranteed by the Constitution. Piqued by
the unfavourable judgements, Parliament placed these laws in the Ninth
Schedule of [2] the Constitution through the First and Fourth amendments (1951
and 1952 respectively), thereby effectively removing them from the scope of
judicial review.

[Parliament added the Ninth Schedule to the Constitution through the very first
amendment in 1951as a means of immunising certain laws against judicial review.
Under the provisions of Article 31,which themselves were amended several times
later, laws placed in the Ninth Schedule -- pertaining to acquisition of private
property and compensation payable for such acquisition -- cannot be challenged
in a court of law on the ground that they violated the fundamental rights of
41 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

citizens. This protective umbrella covers more than 250 laws passed by state
legislatures with the aim of regulating the size of land holdings and abolishing
various tenancy systems. The Ninth Schedule was created with the primary
objective of preventing the judiciary - which upheld the citizens' right to property
on several occasions - from derailing the Congress party led government's agenda
for a social revolution. ]

Property owners again challenged the constitutional amendments which placed

land reforms laws inthe Ninth Schedule before the Supreme Court, saying that
they violated Article 13 (2) of the Constitution.

Article 13 (2) provides for the protection of the fundamental rights of the citizen.
Parliament and thestate legislatures are clearly prohibited from making laws that
may take away or abridge the fundamental rights guaranteed to the citizen. They
argued that any amendment to the Constitution had the status of a law as
understood by Article 13 (2). In 1952 (Sankari Prasad Singh Deo v. Unionof India )
and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court rejected both arguments
and upheld the power of Parliament to amend any part of the Constitution
including that which affects the fundamental rights of citizens. Significantly
though, two dissenting judges in Sajjan Singh v.Rajasthan case raised doubts
whether the fundamental rights of citizens could become a plaything of the
majority party in Parliament.

The Golaknath verdict

In 1967 an eleven-judge bench of the Supreme Court reversed its position.
Delivering its 6:5 majority judgement in the Golaknath v. State of Punjab case
, Chief Justice Subba Rao put forth the curious position that Article 368, that
contained provisions related to the amendment of the Constitution,merely laid
down the amending procedure. Article 368 did not confer upon Parliament the
power to amend the Constitution. The amending power (constituent power) of
Parliament arose from other provisions contained in the Constitution (Articles
245, 246, 248) which gave it the power to make laws (plenary legislative power).
Thus, the apex court held that the amending power and legislative powers of
Parliament were essentially the same. Therefore, any amendment of the
Constitution must be deemed law as understood in Article 13 (2).

The majority judgement invoked the concept of implied limitations on

Parliament's power to amend the Constitution. This view held that the
42 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Constitution gives a place of permanence to the fundamental freedoms of the

citizen. In giving the Constitution to themselves, the people had reserved the
fundamental rights for themselves. Article 13, according to the majority view,
expressed this limitation on the powers of Parliament. Parliament could not
modify, restrict or impair fundamental freedoms due to this very scheme of the
Constitution and the nature of the freedoms granted under it. The judges stated
that the fundamental rights were so sacrosanct and transcendental in importance
that they could not be restricted even if such a move were to receive unanimous
approval of both houses of Parliament. They observed that a Constituent
Assembly migh tbe summoned by Parliament for the purpose of amending the
fundamental rights if necessary.

In other words, the apex court held that some features of the Constitution lay at
its core and required much more than the usual procedures to change them.

The phrase 'basic structure' was introduced for the first time by M.K. Nambiar
and other counsels while arguing for the petitioners in the Golaknath case, but it
was only in 1973 that the concept surfaced in the text of the apex court's verdict.

Nationalisation of Banks and Abolition of Privy Purses

Within a few weeks of the Golaknath verdict the Congress party suffered heavy
losses in the parliamentary elections and lost power in several states. Though a
private member's bill - tabled by Barrister Nath Pai - seeking to restore the
supremacy of Parliament's power to amend the Constitutionwas introduced and
debated both on the floor of the house and in the Select Committee, it could
notbe passed due to political compulsions of the time. But the opportunity to test
parliamentary supremacy presented itself once again when Parliament
introduced laws to provide greater access to bank credit for the agricultural
sector and ensure equitable distribution of wealth and resources of production
and by:

a) nationalising banks and

b) derecognising erstwhile princes in a bid to take away their Privy purses, which
were promised inperpetuity - as a sop to accede to the Union - at the time of
India's independence.

Parliament reasoned that it was implementing the Directive Principles of State

Policy but the Supreme Court struck down both moves. By now, it was clear that
43 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

the Supreme Court and Parliament were at loggerheads over the relative position
of the fundamental rights vis-à-vis the Directive Principles of State Policy.At one
level, the battle was about the supremacy of Parliament vis-à-vis the power of the
courts to interpret and uphold the Constitution.

At another level the contention was over the sanctity of property as a

fundamental right jealously guarded by an affluent class much smaller than that
of the large impoverished masses for whose benefit the Congress government
claimed to implement its socialist development programme.

Less than two weeks after the Supreme Court struck down the President's order
derecognising the princes, in a quick move to secure the mandate of the people
and to bolster her own stature Prime Minister Indira Gandhi dissolved the Lok
Sabha and called a snap poll.

For the first time, the Constitution itself became the electoral issue in India. Eight
of the ten manifestos in the 1971 elections called for changes in the Constitution
in order to restore the supremacy of Parliament. A.K. Gopalan of the Communist
Party of India (Marxist) went to the extent of saying that the Constitution be done
away with lock stock and barrel and be replaced with one that enshrined the real
sovereignty of the people. The Congress party returned to power with a two-
thirds majority. The electorate had endorsed the Congress party's socialist
agenda, which among other things spoke of making basic changes to the
Constitution in order to restore Parliament's supremacy.

Through a spate of amendments made between July 1971 and June 1972
Parliament sought to regain lost ground. It restored for itself the absolute power
to amend any part of the Constitution including Part III, dealing with fundamental
rights. Even the President was made duty bound to give his assent to any
amendment bill passed by both houses of Parliament. Several curbs on the right
property were passed into law. The right to equality before the law and equal
protection of the laws (Article 14) and the fundamental freedoms guaranteed
under Article 19 were made subordinate to Article 39 (b) & (c) in the Directive
Principles of State Policy. Privy purses of erstwhile princes were abolished and an
entire category of legislation dealing with land reforms was placed in the Ninth
Schedule beyond the scope of judicial review.

Emergence of the Basic Structure Concept- the Kesavanada milestone

44 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Inevitably, the constitutional validity of these amendments was challenged before

a full bench of the Supreme Court (thirteen judges). Their verdict can be found in
eleven separate judgements. Nine judges signed a summary statement which
records the most important conclusions reached by them in this case. Granville
Austin notes that there are several discrepancies between the points contained in
the summary signed by the judges and the opinions expressed by them in their
separate judgements. Nevertheless, the seminal concept of 'basic structure' of
the Constitution gained recognition in the majority verdict.

All judges upheld the validity of the Twenty-fourth amendment saying that
Parliament had the power to amend any or all provisions of the Constitution. All
signatories to the summary held that the Golaknath case had been decided
wrongly and that Article 368 contained both the power and the procedure for
amending the Constitution.

However they were clear that an amendment to the Constitution was not the
same as a law as understood by Article 13 (2).

[It is necessary to point out the subtle difference that exists between two kinds of
functions performed by the Indian Parliament:

a) it can make laws for the country by exercising its legislative power and

b) it can amend the Constitution by exercising its constituent power.

Constituent power is superior to ordinary legislative power. Unlike the British

Parliament whichis a sovereign body (in the absence of a written constitution),
the powers and functions of the IndianParliament and State legislatures are
subject to limitations laid down in the Constitution. TheConstitution does not
contain all the laws that govern the country. Parliament and the statelegislatures
make laws from time to time on various subjects, within their respective
jurisdictions. Thegeneral framework for making these laws is provided by the
Constitution. Parliament alone is given the power to make changes to this
framework under Article 368 . Unlike ordinary laws,amendments to constitutional
provisions require a special majority vote in Parliament.

Another illustration is useful to demonstrate the difference between Parliament's

constituent powerand law making powers. According to Article 21 of the
Constitution, no person in the country maybe deprived of his life or personal
liberty except according to procedure established by law. The Constitution does
45 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

not lay down the details of the procedure as that responsibility is vested withthe
legislatures and the executive. Parliament and the state legislatures make the
necessary lawsid entifying offensive activities for which a person may be
imprisoned or sentenced to death. The executive lays down the procedure of
implementing these laws and the accused person is tried in acourt of law.
Changes to these laws may be incorporated by a simple majority vote in the
concernedstate legislature. There is no need to amend the Constitution in order
to incorporate changes to theselaws. However, if there is a demand to
convert Article 21 into the fundamental right to life byabolishing death penalty,
the Constitution may have to be suitably amended by Parliament using
itsconstituent power.

Most importantly seven of the thirteen judges in the Kesavananda Bharati case,
including Chief Justice Sikri who signed the summary statement, declared that
Parliament's constituent powerwas subject to inherent limitations. Parliament
could not use its amending powers under Article 368 to 'damage', 'emasculate',
'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the
Constitution.

Basic Features of the Constitution according to the Kesavanada verdict

Each judge laid out separately, what he thought were the basic or essential
features of the Constitution. There was no unanimity of opinion within the
majority view either.

Sikri, C.J. explained that the concept of basic structure included:

• supremacy of the Constitution

• republican and democratic form of government

• secular character of the Constitution

• separation of powers between the legislature, executive and the judiciary

• federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:

• the mandate to build a welfare state contained in the Directive Principles of

State Policy
46 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

• unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic

features:

• sovereignty of India

• democratic character of the polity

• unity of the country

• essential features of the individual freedoms secured to the citizens

• mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be

found in the Preamble of the Constitution and the provisions into which they
translated such as:

• sovereign democratic republic

• parliamentary democracy

• three organs of the State

He said that the Constitution would not be itself without the fundamental
freedoms and the directive principles.

Only six judges on the bench (therefore a minority view) agreed that the
fundamental rights o fthe citizen belonged to the basic structure and Parliament
could not amend it.

The minority view

The minority view delivered by Justice A.N. Ray (whose appointment to the
position of Chief Justice over and above the heads of three senior judges, soon
after the pronunciation of the Kesavanand averdict, was widely considered to be
politically motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N.
Dwivedi also agreed that Golaknath had been decided wrongly. They upheld the
validity of all three amendments challenged before the court. Ray, J. held that all
parts of the Constitution were essential and no distinction could be made
between its essential and non-essential parts. All of them agreed that Parliament
47 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

could make fundamental changes in the Constitution by exercising its power

under Article 368.

In summary the majority verdict in Kesavananda Bharati recognised the power of

Parliament to amend any or all provisions of the Constitution provided such an
act did not destroy its basic structure. But there was no unanimity of opinion
about what appoints to that basic structure. Though the Supreme Court very
nearly returned to the position of Sankari Prasad (1952) by restoring the
supremacy of Parliament's amending power, in effect it strengthened the power
of judicial review much more.

Basic Structure concept reaffirmed- the Indira Gandhi Election case

In 1975, The Supreme Court again had the opportunity to pronounce on the basic
structure of the Constitution. A challenge to Prime Minister Indira Gandhi's
election victory was upheld by the Allahabad High Court on grounds of electoral
malpractice in 1975. Pending appeal, the vacation judge- Justice Krishna Iyer,
granted a stay that allowed Smt. Indira Gandhi to function as Prime Minister on
the condition that she should not draw a salary and speak or vote in Parliament
until the case was decided. Meanwhile, Parliament passed the Thirty-ninth
amendment to the Constitution which removed the authority of the Supreme
Court to adjudicate petitions regarding elections of the President, Vice President,
Prime Minister and Speaker of the Lok Sabha. Instead, a body constituted by
Parliament would be vested with the power to resolve such election disputes.
Section 4 of the Amendment Bill effectively thwarted any attempt to challenge
the election of an incumbent, occupying any of the above offices in a court of law.
This was clearly a pre-emptive action designed to benefit Smt. Indira Gandhi
whose election was the object of the ongoing dispute.

Amendments were also made to the Representation of Peoples Acts of 1951 and
1974 and placed in the Ninth Schedule along with the Election Laws Amendment
Act, 1975 in order to save the Prime Minister from embarassment if the apex
court delivered an unfavourable verdict. The mala fide intention of the
government was proved by the haste in which the Thirty-ninth amendment was
passed. The bill was introduced on August 7, 1975 and passed by the Lok Sabha
the same day. The Rajya Sabha (Upper House or House of Elders) passed it the
next day and the President gave his assent two days later. The amendment was
ratified by the state legislatures in special Saturday sessions. It was gazetted on
August 10. When the Supreme Court opened the case for hearing the next day,
48 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

the Attorney General asked the Court to throw out the case in the light of the
new amendment.

Counsel for Raj Narain who was the political opponent challenging Mrs. Gandhi's
election argued that the amendment was against the basic structure of the
Constitution as it affected the conduct of free and fair elections and the power of
judicial review. Counsel also argued that Parliament was not competent to use its
constituent power for validating an election that was declared void by the High
Court.

Four out of five judges on the bench upheld the Thirty-ninth amendment, but
only after striking downthat part which sought to curb the power of the judiciary
to adjudicate in the current election dispute. One judge, Beg, J. upheld the
amendment in its entirety. Mrs. Gandhi's election was declared validon the basis
of the amended election laws. The judges grudgingly accepted Parliament's power
topass laws that have a retrospective effect.

Basic Features of the Constitution according to the Election case verdict

Again, each judge expressed views about what amounts to the basic structure of
the Constitution:

According to Justice H.R. Khanna, democracy is a basic feature of the

Constitution andincludes free and fair elections.

Justice K.K. Thomas held that the power of judicial review is an essential feature.

Justice Y.V. Chandrachud listed four basic features which he considered

unamendable:

• sovereign democratic republic status

• equality of status and opportunity of an individual

• secularism and freedom of conscience and religion

• 'government of laws and not of men' i.e. the rule of law

According to Chief Justice A.N. Ray, the constituent power of Parliament was
above the Constitution itself and therefore not bound by the principle of
separation of powers. Parliament could therefore exclude laws relating election
49 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

disputes from judicial review. He opined, strangely, that democracy was a basic
feature but not free and fair elections. Ray, C.J. held that ordinary legislation was
not within the scope of basic features.

Justice K.K. Mathew agreed with Ray, C.J. that ordinary laws did not fall within
the purview of basic structure. But he held that democracy was an essential
feature and that election disputes must be decided on the basis of law and facts
by the judiciary.

Justice M.H. Beg disagreed with Ray, C.J. on the grounds that it would be
unnecessary to have a Constitution if Parliament's constituent power were said to
be above it. Judicial powers were vested in the Supreme Court and the High
Courts and Parliament could not perform them. He contended that supremacy of
the Constitution and separation of powers were basic features as understood by
the majority in the Kesavananda Bharati case. Beg, J. emphasised that the
doctrine of basic structure included within its scope ordinary legislation also.

Despite the disagreement between the judges on what constituted the basic
structure of the Constitution, the idea that the Constitution had a core content
which was sacrosanct was upheld by the majority view.

The Kesavananda Review Bench

Within three days of the decision on the Election case Ray, C.J. convened a
thirteen judge bench toreview the Kesavanada verdict on the pretext of hearing a
number of petitions relating to land ceiling laws which had been languishing in
high courts. The petitions contended that the application of landceiling laws
violated the basic structure of the Constitution. In effect the Review bench was to
decidewhether or not the basic structure doctrine restricted Parliament's power
to amend the Constitution. The decision in the Bank Nationalisation case was also
up for review.

Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to

accept thedogma of basic structure.

It must be remembered that no specific petition seeking a review of the

Kesavananda verdict filedbefore the apex court- a fact noted with much chagrin
by several members of the bench. N.N.Palkhivala appearing for on behalf of a coal
mining company eloquently argued against the move toreview the Kesavananda
decision. Ultimately, Ray, C.J. dissolved the bench after two days ofhearings.
50 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Many people have suspected the government's indirect involvement in this

episode seekingto undo an unfavourable judicial precedent set by the
Kesavananda decision. However no concerted efforts were made to pursue the
case.

The declaration of a National Emergency in June 1975 and the consequent

suspension offundamental freedoms, including the right to move courts against
preventive detention, diverted theattention of the country from this issue.

Sardar Swaran Singh Committee and the Forty-second amendment

Soon after the declaration of National Emergency, the Congress party constituted
a committee under the Chairmanship of Sardar Swaran Singh to study the
question of amending the Constitution in the light of past experiences. Based on
its recommendations, the government incorporated several changes to the
Constitution including the Preamble, through the Forty-second
amendment (passed in 1976 and came into effect on January 3, 1977). Among
other things the amendment:

a) gave the Directive Principles of State Policy precedence over the Fundamental
Rights contained in Article 14 (right to equality before the law and equal
protection of the laws), Article 19 (various freedoms like freedom of speech and
expression, right to assemble peacefully, right to form associations and unions,
right to move about and reside freely inany part of the country and the right to
pursue any trade or profession) and Article 21 (right to life and personal
liberty). Article 31C was amended to prohibit any challenge to laws madeunder
any of the Directive Principles of State Policy;

b) laid down that amendments to the Constitution made in the past or those likely
to be made infuture could not be questioned in any court on any ground;

c) removed all amendments to fundamental rights from the scope of judicial

review and

d) removed all limits on Parliament's power to amend the Constitution under

Article 368.

Basic structure doctrine reaffirmed- the Minerva Mills and Waman Rao cases
51 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

Within less than two years of the restoration of Parliament's amending powers to
near absolute terms,the Forty-second amendment was challenged before the
Supreme Court by the owners of MinervaMills (Bangalore) a sick industrial firm
which was nationalised by the government in 1974.

Mr. N.A. Palkhivala, renowned constitutional lawyer and counsel for the
petitioners, chose not tochallenge the government's action merely in terms of an
infringement of the fundamental right toproperty. Instead, he framed the
challenge in terms of Parliament's power to amend the Constitution.

Mr. Palkhivala argued that Section 55 of the amendment had placed unlimited
amending power in the hands of Parliament. The attempt to immunise
constitutional amendments against judicial review violated the doctrine of basic
structure which had been recognised by the Supreme Court in the Kesavananda
Bharati and Indira Gandhi Election Cases. He further contended that the
amended Article 31C was constitutionally bad as it violated the Preamble of the
Constitution and thefundamental rights of citizens. It also took away the power of
judicial review.

Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1), upheld
both contentions.The majority view upheld the power of judicial review of
constitutional amendments. They maintained that clauses (4) and (5) of Article
368 conferred unlimited power on Parliament to amend the Constitution. They
said that this deprived courts of the ability to question the amendment even if it
damaged or destroyed the Constitution's basic structure.

The judges, who concurred with Chandrachud, C.J. ruled that a limited
amending power itselfis a basic feature of the Constitution.

Bhagwati, J. the dissenting judge also agreed with this view stating that no
authority howsoever lofty, could claim to be the sole judge of its power and
actions under the Constitution.

The majority held the amendment to Article 31C unconstitutional as it destroyed

the harmony and balance between fundamental rights and directive principles
which is an essential or basic feature of the Constitution. The amendment
to Article 31C remains a dead letter as it has notbeen repealed or deleted by
Parliament. Nevertheless cases under it are decided as it existed prior
tothe Forty-second amendment.
52 3 YEARS LLB 2nd SEMESTER JURISPRUDENCE.

In another case relating to a similar dispute involving agricultural property the

apex court, held that all constitutional amendments made after the date of the
Kesavananda Bharati judgement were open to judicial review. All laws placed in
the Ninth Schedule after the date of the Kesavananda Bharatijudgement were
also open to review in the courts. They can be challenged on the ground that
theyare beyond Parliament's constituent power or that they have damaged the
basic structure of theConstitution. In essence, the Supreme Court struck a balance
between its authority to interpret the Constitution and Parliament's power to
amend it.

13. Explain the concept of Volksgeist as a means of social control.

Answer :-

Introduction :-
The law :- It is very difficult to define in a particular way or a uniform definition of
law is like imagination. Uniform definition of law is far from reality because every
jurist has defined the law according to their own methods and explains it from
different viewpoints. Sources, nature, and concerns are some of the element
which impacts in defining law. So to make their concepts clear various schools
were established to understand and define law. In this article, we will discuss one
of the schools known as the Historical school of Jurisprudence developed by
“Friedrich Carl Von Savigny.”

Savigny (Friedrich Carl Von Savigny) :-

Savigny was one of the most respected and influential German jurists in
the 19thcentury and known as the pioneer of the Historical school of law through
his concept of Volksgeist (Spirit of people). He was born on February 21, 1779,
in Frankfurt, Germany. He studied at the Universities of Marburg and Gottingen
and obtained a deeper knowledge of Roman law during his lifetime. He worked as
a Professor of The University of Berlin in 1810. He was also appointed as the
Prussian Minister of Justice in 1848. His major works are :-
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1. Law of Possession (das recht des bestiges), 1803,

2. The History of Roman law in Middle ages in six volumes, 1818-31,
3. System of Modern Roman law, 1840-49,
4. Contracts, 1853.

Volksgeist :-
Volksgeist is the concept of law propounded by the Savigny. The term Volksgeist
is made by the two words Volks means people and geist means their common
will. It means Volksgeist means the law is a common will of the people (spirit of
the people). In a simple sense, Volksgeist is a general and common perception of
the people or the spirit of the people. The main idea of Savigny behind this theory
was that law is an expression of the will of the people and it doesn’t come from
the deliberate legislation and it develops as the consciousness of the nation
arises. The core of Volksgeist was that a legal system of a nation is mainly
influenced by the historical culture and traditions of the people and its growth
was located in their acceptance.

Jurisprudential study of the theory :-

As mentioned above, Savigny believed that the evolution of law can only be made
by taking into account the past consideration and without doing that it creates
more amounts of confusion rather solve it. According to Savigny, the origin of law
lies in the Volksgeist. For the purpose of this, he made a whole new school known
as the Historical school of Jurisprudence.

Theory of Savigny can be explained in the following heads :-

1.Law prevails basically in society :-

According to the Savigny, the law is the product of the people’s life living in a
particular society and it is the outcome of a culture of a society. It embodies the
whole history of a nation’s culture and reflecting inner convictions that are rooted
in society’s common experience. The Volksgeist gradually drives the law to
develop over the course of history. Thus, according to Savigny, a thorough
understanding of the history of people/society is necessary for studying the law
accurately.
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2.Law develops like a language :-

Savigny stated that law develops like a language. He said that law is a national
character and develops like a language in the nation, which not only binds people
with belief and opinion in a group but also grows with the development of
society. The development of both elements goes hand in hand. It has no different
existence, which follows them but considers as one being. History is proof that
law is developed according to the pre-existing manners in society and approved
by the national character, like language.

3.Law is a continuous and regular process :-

Law is a continuous and unbreakable process bound by the common culture and
beliefs of society, not the product of the day. It develops by the regular and
continuous process of society. Customs and usages in society are given common
consent to be followed by the society in the beginning and the people follow
them without any hesitation, insured willingly, and those not follow become
solitude in the society and finally, all have to become common and this the thing
takes the shape of law on the society.

4.Savigny’s opinion for codification of law :-

Savigny was against the codification of the law. He thinks that the development of
the law should be on the basis of historical knowledge and not by the arbitral
legislation.

5.The initial development of law is natural and later on, it is developed by

jurists :-
He stated that in the early stages law develops naturally/spontaneously according
to the internal needs of the people but after people reached a certain level of
civilization, different kind of national activity developing the law accordingly.

Criticism :-
As already discussed, a uniform and precise definition of law is far from reality,
and Savigny’s Volksgeist is not an exception. It has also some criticisms by other
jurists, which are as follows :-

1.Volksgeist not always law :-

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Dias says that many institutions like slavery have originated not in Volksgeist but
in the convenience of a ruling oligarchy.

2.Not clear who the volk are and whose geist determines the law :-
It is also not clear, who the volk are and whose geist determine the law nor it is
clear whether the Volksgeist may have shaped by the law rather than vice-versa.

3.Inconsistency of the theory :-

Savigny, on the one hand, emphasized the national character of law but on the
other hand, he recommended the method of Roman Law to be adopted for the
modern conditions. Hence there is inconsistency in the theory of Volksgeist.

4.Volksgeist is not an exclusive source of law :-

According to the Savigny, Volksgeist is the only source of law in society, but it is
not correct. Lord Lloyd also said that Savigny underrated the significance of
legislation for modern society. As far as society is developed the law is also to be
developed in the society by legislation also.

5.Other law influencing factors ignored :-

Savigny in his theory ignored other factors that helped to originate law. He totally
ignored the judge’s function to create the law. Paton states that the creative work
of the judges and jurists was treated rather too lightly by Savigny.

6.It was unfortunate that the doctrine of Volksgeist was used by the National
Socialist in Germany for an entirely different purpose which led to the passing
brutal laws against the Jews during the regime of Hitler in Germany.

Conclusion :-
As per the above-mentioned matter, it can be said that Savigny in his theory
deliberately focused on his theory of Volksgeist on which of his research was
depending upon. In his theory, he says that law is derived from the customs,
tradition and rules of the community and spirit of the people are important in the
creation of the law and the role of the sovereign is very less. He thinks that by
deep and careful study of the customs, the true essence of the law developed.
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Although, the theory of Savigny was not sufficient for making law and was
criticized by many jurists as stated above, but despite all these criticisms, Savigny
became the founding stone of the beginning of modern-day jurisprudence.