StudentGuiders

Define the term Interpretation. Explain the objectives of interpretation

1. Define the term law. What are the sources of law?

ANSWER……... Law is a system of rules that are created and enforced

through social or governmental institutions to regulate behavior. Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive

through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people. Thus law is a set of rules that people are made to follow by the state. The courts and police enforce this system of rules and punish people who break the laws, such as by making them pay a fine or other penalty or sending them to jail or any other punishment in accordance with law. In ancient societies, laws were written by leaders, to set out rules on how people can live, work and do business with each other. Today in most countries, laws are written and voted on by groups of elected politicians in a legislature, such as a parliament or congress. To follow the laws of a society is to do legal things. An activity is illegal if it breaks a law or does not follow the laws.

A legal code is a written code of laws that are enforced. This may deal with things like police, courts, or punishments. A lawyer, jurist or attorney is a professional who studies and argues the rules of law. In the United States, there are two kinds of attorneys - "transactional" attorneys who write contracts and "litigators" who go to court. In the United Kingdom, these professionals are called solicitors and barristers respectively. In India both proficiency are designated as Advocates and are governed by Advocates Act 1961.

The Rule of Law is the law which says that government can only legally use its power in a way the government and the people agree on. It limits the powers a government has, as agreed in a country's constitution. The Rule of Law prevents dictatorship and protects the rights of the people. When leaders enforce the legal code honestly, even on themselves and their friends, this is an example of the rule of law being followed. "The rule of law", wrote the ancient Greek philosopher Aristotle in 350 BC, "is better than the rule of any individual." The adjudication of the law is generally divided into two main areas. Criminal law deals with conduct that is considered harmful to social order and in which the guilty party may be imprisoned or fined. Civil law deals with the resolution of lawsuits(disputes) between individuals or organizations. Law provides a source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice.

Law may be defined as a set of rules which assures the prevalence of justice and equality enacted by State and enforced by police (or any other law enforcing agency ). Numerous definitions of law have been put forward over the centuries. The Third New International Dictionary from Merriam-Webster defines law as: "Law is a binding custom or practice of a community; a rule or mode of conduct or action that is prescribed or formally recognized as binding by a supreme controlling authority or is made obligatory by a sanction (as an edict, decree, rescript, order, ordinance, statute, resolution, rule, judicial decision, or usage) made, recognized, or enforced by the controlling authority." According to Justinian “ Law is the king of all mortal and immortal affairs , which ought to be the chief ,the ruler and the leader of the noble and the base and thus the standard of what is just and unjust ,the commander to animals naturally social of what they should do , the forbidder of what they should not do .” The view of Kant in these aspect was that “Law is the sum total of conditions under which the personal wishes of one man can be combined with the personal wishes of another man in accordance with the law of freedom”. But the real controversy lies in the fact whether its desirable or even possible to provide a “ universally accepted definition of law ” , since law is a social science that grows and develops with the growth and development of society . Any change in society is bound to affect law which is evident from the fact that Nirbhaya incident of 2012 and consequently strengthening of rape laws . Thus law is dynamic hence the definition provided in the past may have become irrelevant now while the definition applicable now may loose its value in the coming future . Thus the meaning ,concept and definition of law needed to be updated with time .Law can defined based on sources, culture , nature , use , practical implications and a definition which fails to cover all these aspects does not have any practical implication . Pollock’s observation of the fact that a law school pupil of any reputed institution or a knowledgeable lawyer with many years of litigation experience will hesitate to answer the simple question “ What is Law ” due the vastness and dynamic nature of law .But Thurman Arnold is of the opinion that it is impossible to define “Law” but it’s also obvious the struggle to define the word should never be abandoned .

Sources of Law:

Custom (Customary Law):

Custom has been one of the oldest sources of law. In ancient times, social relations gave rise to several usages, traditions and customs. These were used to settle and decide disputes among the people. Customs were practiced habitually and violations of customs were disapproved and punished by the society. Initially social institutions began working on the basis of several accepted customs. Gradually, the State emerged as the organised political institution of the people having the responsibility to maintain peace, law and order; naturally, it also began acting by making and enforcing rules based upon customs and traditions. In fact, most of the laws had their birth when the State began converting the customs into authoritative and binding rules.

Custom has been indeed a rich source of Law.

Religion and Morality:

Religion and religious codes appeared naturally in every society when human beings began observing, enjoying and fearing natural forces. These were accepted as superior heavenly forces (Gods and Goddesses) and worshiped. The religious and moral codes of a society provided to the State the necessary material for regulating the actions of the people. The State converted several moral and religious rules into its laws. Hence Religion and Morality have also been important sources of Law.

Legislation:

Since the emergence of legislatures in 13th century, legislation has emerged as the chief source of Law. Traditionally, the State depended upon customs and the decrees or orders of the King for regulating the behaviour of the people. Later on, the legislature emerged as an organ of the government. It began transforming the customary rules of behaviour into definite and enacted rules of behaviour of the people.

The King, as the sovereign, started giving these his approval. Soon legislation emerged as the chief source of law and the legislature got recognition as the Legal Sovereign i.e. law-making organ of the State. In contemporary times, legislation has come to be the most potent, prolific and direct source of law. It has come to be recognized as the chief means for the formulation of the will of the State into binding rules.

Judicial Decisions(Precedents):

In contemporary times, Judicial Decision has come to be an important source of Law. It is the responsibility of the courts to interpret and apply laws to specific cases. The courts settle the disputes of the people in cases that come before them. The decisions of the courts – the judicial decisions, are binding on the parties to the case. These also get accepted as laws for future cases. But not all judicial decisions are laws.

Only the judicial decisions given by the apex court or the courts which stand recognized as the Courts of Record, (like the Supreme Court and High Courts of India) are recognized and used as laws proper. Lower Courts can settle their cases on the basis of such judicial decisions.

Equity:

Equity means fairness and sense of justice. It is also a source of Law. For deciding cases, the judges interpret and apply laws to the specific cases. But laws cannot fully fit in each case and these can be silent in some respects. In all such cases, the judges depend on equity and act in accordance with their sense of fair play and justice. Equity is used to provide relief to the aggrieved parties and such decisions perform the function of laying down rules for the future. As such equity acts as a source of law.

Scientific Commentaries:

The works of eminent jurists always include scientific commentaries on the Constitution and the laws of each state. These are used by the courts for determining the meaning of law. It helps the courts to interpret and apply laws.

The jurists not only discuss and explain the existing law but also suggest the future possible rules of behaviour. They also highlight the weaknesses of the existing laws as well as the ways to overcome these. Interpretations given by them help the judges to interpret and apply Laws to specific cases.

7. CONVENTION Law

According to Salmond, conventional law means "any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other." It is a form of special law. It is law for the parties who subscribe to it. Examples of conventional law are the laws of cricket or any other game, rules and regulations of a club or any other voluntary society. Conventional law in some cases is enforced by the State. When it is enforced by the State, it becomes a part of the civil law. The view of some writers is that international law or the law of nations is also a kind of conventional law on the ground that its principles are expressly or impliedly agreed upon by the States concerned.

8. Practical or Technical Law

Practical or technical law consists of rules for the attainment of certain ends e.g., the laws of health, the laws of architecture etc. These rules guide us as to what we ought to do in order to attain a certain end. Within this category come the laws of music, laws of architecture, laws of style, etc.

2. Define the term Interpretation. Explain the objectives of interpretation

ANSWER…….. The art or process of discovering and expounding the intended signification of the language used in a statute, will, contract, or any other written document, that is, the meaning which the author designed it to convey to others. The discovery and representation of the true meaning of any signs used to convey ideas. Through interpretation, we come to know the normative message of a text. It is a process that “extracts” the legal meaning of the text from its semantic meaning. Interpreters translate the “human” language into “legal” language. They turn “static law” into “dynamic law.” They carry out the legal norm in practice. Legal interpretation turns a semantic “text” into a legal norm—hence the distinction between the semantic meaning of a text and its legal (or normative) meaning. To interpret a text is to choose its legal meaning from among a number of semantic possibilities—to decide which of the text’s semantic meanings constitutes its proper legal meaning. The semantic meaning of the text determines its semantic potential or semantic range of activity. The legal meaning carries this potential into practice. Usually, a text has a single, unique semantic meaning in the context of a given event, and that meaning also serves as the text’s legal meaning. In these typical cases, there is complete identity between the text’s semantic and legal meanings. Legal interpretation may be either “authentic,” when it is expressly provided by the legislator, or “usual,” when it is derived from unwritten practice. Doctrinal interpretation may turn on the meaning of words and sentences, when it is called “grammatical,” or on the intention of the legislator, when it is described as

“logical.” When logical interpretation stretches the words of a statute to cover its obvious meaning, it is called “extensive;” when, on the other hand, it avoids giving full meaning to the words, in order not to go beyond the intention of the legislator, it is called “restrictive.” Customary interpretation (also called “usual”) is that which arises from successive or concurrent decisions of the court on the same subject-matter, having regard to the spirit of the law, jurisprudence, usages, and equity; as distinguished from “authentic” interpretation, which is that given by the legislator himself.

The Object of Interpretation

The object of interpretation is the text. The text is the interpretandum. This is true of constitution and statute, case law and custom, contract and will. Interpretive activity extracts or extricates the legal (constitutional, case-law, contractual, etc.) norm from its semantic vessel. We should, however, distinguish between the language that anchors the legal norm and the legal norm extracted from the language. The norm extracted from the text is the product of interpretation. It is not the object of interpretation. The text is the object of interpretation. Interpretation of statute is the process of ascertaining the true meaning of the words used in a statute. When the language of the statute is clear, there is no need for the rules of interpretation. But, in certain cases, more than one meaning may be derived from the same word or sentence. It is therefore necessary to interpret the statute to find out the real intention of the statute. Consider, for example, a contract between Rueben and Simon for the sale of an asset that does not specify the time of delivery. A few norms might arise from the text: the legal obligation to deliver the asset immediately, within a year, or within a reasonable time. Through interpretation, we determine that the norm arising from the text is the legal obligation to deliver the asset within a reasonable time. The contract (as a text) and the contract (as a norm) are not the same thing. Interpretation engages the text, producing the norm. The norm presents itself to the interpreter after he or she has interpreted the text. In their role as interpreters, judges are not concerned with the status of the norm, its validity, or its relationship to other norms. For example, interpretive rules do not regulate the relationship between a superior norm (like a constitution) and an inferior norm (like a statute). The object of interpretation is the text of the constitution and the text of the statute. Once an interpreter extracts the norm from them, the interpretive work ends, and the non-interpretive work, establishing the norm’s validity and status, begins. More precisely, in order to interpret each text, one must consider other relevant texts and the norms extracted from them. Necessity of interpretation would arise only where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute. If the language is clear and unambiguous, no need of interpretation would arise. In this regard, a Constitution Bench of five Judges of the Supreme Court in R.S. Nayak v A.R. Antulay, AIR 1984 SC 684 has held: “… If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self defeating.” Again Supreme Court in Grasim Industries Ltd. v Collector of Customs, Bombay, (2002)4 SCC 297 has followed the same principle and observed: “Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for court to take upon itself the task of amending or altering the statutory provisions.” The purpose of Interpretation of Statutes is to help the Judge to ascertain the intention of the Legislature – not to control that intention or to confine it within the limits, which the Judge may deem reasonable or expedient. A judge’s interpretation of the text of a constitution affects judicial interpretation of the text of a statute. Once judges have interpreted the different texts and extracted the legal norms from them, however, they face additional questions—like the validity of the statute and its relationship to the constitution—that are not questions of interpretation. Although a given legal tradition may treat these questions as interpretive, we ought to distinguish between these different types of questions. Henceforth, when we refer to legal interpretation, we refer to the interpretation of a legal text.

3. What is common law system ?) What are stare decisis ?

Answer………… Common law (also known as judicial precedent or judge-made law, or case law) is that body of law derived from judicial decisions of courts and similar tribunals. The term common law can refer to two things. The common law is the body of law formed through court decisions, as opposed to law formed through statutes or written legislation. A common law system is the system of jurisprudence that is based on the doctrine of judicial precedent, the principle under which the lower courts must follow the decisions of the higher courts, rather than on statutory laws. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to

past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue . Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch . Common law has no basis in statute and is established and developed through written opinions of judges delivered at the end of a trial. These opinions are binding on future decisions of lower courts in the same jurisdiction. However, that is needless to say that common law systems derive all of their laws from case law. Democratic countries that have adopted the common law system have legislative bodies at the centre of their democracies, and these bodies regularly pass new legislation. This legislation is then interpreted and applied by the judiciary during trials; these rulings will then be applied in future cases under the doctrine of stare decisis, another name for judicial precedent. Large bodies of law, for example those relating to property, contracts and torts, are traditionally part of the common law. More modern areas of law such as employment law, intellectual property law and health and safety tend to be based on statute rather than on common law. A Common Law system requires several stages of research and analysis to determine the appropriate law in a given situation. The facts are ascertained properly, relevant cases and statutes are to be identified, and the principle, ideas by various courts need to be understood and applied in order to determine how they would help in understanding the point of law in question within that case. The common law is quite different from codified law as it follows the judgment while the codified law precedes it. Therefore it can be said that it is a system of rules and declarations of principles from where the judicial ideas and legal definitions are derived. This law is ever changing as its principles are influenced by the changing conditions and requirements of the society.

Stare Decisis And Doctrine In India

“Stare decisis” is an abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to stand by decisions that are already settled and not to disturb those settled matters”. And “Stare decisis” literally means “to stand by decided matters”. Case law, so called, or the decisions of the courts serve as a very important source of law, especially in countries following the common law system of adjudication. In countries that follow the common law system, the judgments of the higher courts are treated as binding on all subordinate courts. This concept of treating judgments of superior courts as binding is called the doctrine of precedent or stare decisis.

Certainty and predictability are very important attributes of law, and indeed essential for its success. If law treats a person in particular way, it is only just that other persons in similar position are treated likewise. Only then will there be greater compliance with law. This first principle of law, so to say, should be applicable to the judiciary in order to ensure consistency in interpretation of various laws. The doctrine of precedent was, therefore, evolved in order to maintain consistency and uniformity in law. These apart, the doctrine of precedent has the advantages of equality, efficiency and avoiding arbitrariness. Stare decisis is a policy adopted by the court to stand by a precedent. The word “decisis” means ‘the decision’. Under the doctrine of stare decisis, the decision of the court for a case is only what is important and not the real facts and proceedings of the case. In other words it is the ‘what’ of a case which is important and not the ‘how’ and ‘why’. Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge’s reputation may affect the degree of persuasiveness of the authority. For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case.

Application of the Doctrine in India

In India, The Supreme Court of India is the supreme authority in legal matters as it is the highest judicial body and the cases decided by it form the precedent for all the other courts in India; it includes the High Courts, district courts and the other lower courts. The Supreme Courts serves as the precedential body, resolving conflicting interpretations of law. Whatever this court decides becomes judicial precedent. The doctrine of precedent is expressly incorporated in India by Article 141 of the Constitution of India, 1950. Article 141 provides that the decisions of the Supreme Court are binding on all courts within the territory of India. Although there is no express provision, but by convention the decisions of a High Court are binding on all lower courts within the territorial jurisdiction of that High Court. Similarly, a decision of a higher Bench , is binding on the lower Bench. The SC is not bound by its own judgments but is free to reconsider them in appropriate cases as and when required. However, given the power to overrule a decision, what are the circumstances in which the power should be exercised. In the case of I.T.O Tuticorin v. T.S.D. Nadar, it was held that “the decisions of the court

should not be overruled except under circumstances which compel them to do so…every time the court

overrules its previous decision, the confidence of the public in the soundness of decision of this court is bound to be shaken…decisions of this court should be confined to questions of great public importance”.

Ratio or Rationes Decidendi

The maximum attention of jurists while dealing with the doctrine of precedent is devoted to the enigmatic concept of ratio decidendi. This is because ratio decidendi is the life of this doctrine. Ratio decidendi is, to borrow the words of Prof. Julius Stone, “the link" between generations.

Ratio decidendi is generally understood as the reasons spelling out the binding principle law in a decision. Although the meaning might be quite simple, the most demanding task is ascertaining the correct ratio decidendi in a case, and maximum space in the discourse on the doctrine of precedent is devoted to this issue.

Obiter Dictum

Obiter dictum is Latin phrase meaning "by the way", that is, a remark in a judgment that is "said in passing". It is a concept derived from English common law, whereby a judgment comprises only two elements: ratio decidendi and obiter dicta. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only. While deciding on the facts of a case observations not relevant to deciding the case may be made by a judge. These observations, although part of the judgment, may not have a bearing on the ultimate outcome of the case. Such observations are called obiter dictum or dicta. Obiter dicta are not considered binding. Nevertheless, resort may be sort to them if they are relevant to the principle of law being ascertained.

Per incurium

When a decision is given without considering or in ignorance of the existing principles/ provisions of law, either statutory or case law, it is said to be per incurium. A decision per incurium does not have any binding force.

Sub-silentio

A decision given without considering a particular aspect of law or issue, or without a debate or argument on questions relevant to the matter, the decision will be termed as sub-silentio. Like judgments per incurium a decision passed sub-silentio is not binding.

Distinguishing a case

Cases with identical facts are rarity. Cases with similar facts are not frequent. A principle of law is held considering the broad circumstance before the court and when such principles are sought to be applied as precedent it should be ascertained whether the circumstance are similar. When the facts are materially different from the previous decision, the precedent can be distinguished, that is to say, a different rule may be applied in order to suit the circumstances. Distinguishing cases also serves a tool to evolve law with the change in society. It allows the courts space to decide matter in a manner to suit the circumstance, without having to overturn the precedent.

Overruling a case

When a higher court is of the opinion that the principle of law enunciated in a decision is not correct it may overrule that judgment and lay down the correct principle of law. A judgment can be overruled only by a higher court. Lowers courts do not have such power. This is very clear from the very nature of the doctrine of precedent.

Stare decisis in civil law systems

Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. However, the civil law system does have jurisprudence constante, which is similar to Stare decisis and dictates that the Court's decision condone a cohesive and predictable result. In theory, inferior courts are generally not bound to precedents established by superior courts. In practice, the need for predictability means that inferior courts generally defer to precedents by superior courts. In a sense, the most superior courts in civil law jurisdictions, such as the Cour de cassationand the Conseil d'État in France are recognized as being bodies of a quasi-legislative nature.

Exceptions to the doctrine of Stare Decisis

The doctrine of stare decisis requires subsequent courts to abide by the decisions of prior courts, whenever similar of identical questions of law as were decided by the prior courts arise before them. The rule is not absolute. In Bachhan Singh v. State of Punjab, it was observed that the rule of adherence to precedents is not a rigid or inflexible rule of law, but is a rule of practice adopted by courts in order to provide uniformity and stability in the law. Where for instance, there is a change in the statutory provision on which the prior decision was based, the prior decision would no longer be a binding precedent. Also, where a particular decision or set of decisions have been overruled again, the decisions would not have a binding force. Other exceptions i.e., situations where a prior decision would not be binding on a subsequent court, include decisions per incurium and decisions sub silentio. In Maktul v. Mst. Manbhari and Ors , it was observed that the rule of stare decisis is not an inflexible rule and is inapplicable where the decision is clearly erroneous and where its reversal does not shake any titles or contracts or alter the general course of dealing.

Conclusion

The doctrine of precedent is not mono-dimensional concept, but a complex phenomenon. Although this cannot be fully described, a deeper and wider understanding of the doctrine is possible by analysing and understanding each facet of it.

4.The importance of common law in India (16 )

The existing Indian legal system can be said to have a contemporaneous existence i.e. with the advent of the English in India. During the 1600s when the enterprising English East India Company forayed into India on the backdrop of trading interests little did the Indian masses or even their future rulers know that they would shape the very foundation of the modern Indian society. This transformation happened in various ways but the most relevant of those developments was the setting up of a new type of judicial system, which was primarily based on the common law system followed in England. As the East India Company took control of territories, leased to them by the Mughals for trading purposes, they were anointed the power to govern all persons belonging to the English government and the company within these territories according to the English common laws by the Crown. After the company won the battle of Plassey (1757), the Mughal legal system was slowly replaced by the English legal system. The Chief Justice and puisne Judges were appointed by the King. This court had jurisdiction over civil, criminal, admiralty and ecclesiastical matters and was required to formulate rules of practice and procedure. Later by the mid nineteenth century through another act of the crown i.e. Letter Patents Act of 1862, the High Courts were established in place of the Supreme Court in each of the presidency towns and were further established in other provinces as well. These courts exercised the same powers as that of the Supreme Courts and appeals lay to the Privy Council. The setting up of The Law Commission to review the Indian legal setup lead to the coding of the laws, such as the Indian Penal Code of 1862 regarding criminal matters was drafted under the stewardship of T.B Macaulay. The Evidence Act of 1872 and The Contracts Act of 1872 were envisaged by the same commission. Thus all these developments lead to the creation of a judicial system, which was predominantly based on the Common Law system of England. The application of common law has been overarching in the Indian context; it has been enshrined in the Indian legal system over the space of two centuries by the English to the point that one can’t allocate an individual identity to Indian jurisprudence. Thus it can be said that common law has been applicable here though in a different format than that of England as the needs and demands of the Indian society were different from that of the English. It is to be found out that much of the law compiled in codes we have today were primarily derived from the Common Law principles. The basic statutes governing civil and criminal justice are the Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Code of Civil Procedure, 1908. One thing can be said about these legislations is that they have stood the test of time with minimal amendments. Codification of laws made the law uniform throughout the country and fostered a kind of legal unity in fundamental laws. The Codes apply uniformly throughout the nation.

Another contribution to Indian legal system by Common Law has been the adversarial system of trial. In this system the accused is presumed to be innocent and the burden is on the prosecution to prove beyond

reasonable doubt that he is guilty. The accused also enjoys the right to silence and cannot be compelled to reply. The truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. Both the parties have a right to question their witnesses and the opposing side has a right to test their testimony by questioning them. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused, his ultimate duty being to pronounce the judgment regarding the matter.

The system of Precedents derived from the Common Law too has wide application within the Indian legal system, a precedent in Common Law parlance means a previously decided case which establishes a rule or principle that may be utilized by the court or a judicial body in deciding other cases that are similar in facts or issue. Initially the English judges and barristers presiding and practicing in the Indian courts followed the decisions of the courts in England, thus slowly the concept of precedents came to be ardently followed within the Indian courts. This law has been carried forward in the present day Legal system as in regard to the judgments of the Supreme Court of India the Indian Constitution provides that “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” Hence it can be said unequivocally that Common Law has wide application within the Indian Legal fold as many of the features of this system have been adopted and further developed from that of The English Common Law System, even though its application hasn’t been discussed in entirety and only the major principles derived from it have been discussed.

Thus it can be said that common law traces back its origins to England and is primarily a method of administering justice, which has incorporated different aspects of the legal pedagogy and practice with the help of deliberations of laymen and the learned over the course of time. In the Indian context the common law initially was applied for the convenience of the English, so they could govern their territories properly but, as they became the overlords of India the common law became common for Indians. There developed a symbiotic relationship between the Indian customary law and the common law which gave birth to the modern day Indian legal system. Hence we can say India has an organic law as a consequence of the common law system.

5. Short Notes

Obiter dictum- Obiter dictum is Latin phrase meaning "by the way", that is, a remark in a

judgment that is "said in passing". It is a concept derived from English common law, whereby a judgment comprises only two elements: ratio decidendi and obiter dicta. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only. While deciding on the facts of a case observations not relevant to deciding the case may be made by a judge. These observations, although part of the judgment, may not have a bearing on the ultimate outcome of the case. Such observations are called obiter dictum or dicta. In India, a departure has been made of the principle operating in England with regard to obiter dicta. The High courts have held almost uniformly that they are bound by the obiter dictum of the Supreme Court of India. In Mohandas v. Sattanathan their Lordship observed that the Supreme court is the highest judicial tribunal in India and it is as much necessary in the interest of judicial uniformity and judicial discipline that all the High Courts must accept as binding the obiter dicta of council. But if the obiter dicta is on a question that did not arise for determination by the Supreme Court and is a mere expression of opinion given by the way then it is not binding. In Nurudin Ahmed v. State of Assam, it was laid down that ‘the observations of their Lordships of the Supreme Court if they were made obiter, would be entitled to the highest esteem from the High Court’. In Ashok Leyland11 it was held that “The obiter dicta of a judge of the Supreme Court even in a dissenting judgement are entitled to high respect, especially if there is no direct decision to conclude the question at issue. A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are obiter dicta. Obiter dicta (often simply dicta,' or obiter) are remarks or observations made by a judge that, although included in the body of the court's opinion, do not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument". Obiter dicta are not considered binding. Nevertheless, resort may be sort to them if they are relevant to the principle of law being ascertained. Obiter dicta are of little legal authority.: At best they amount only to persuasive precedent. They do not even bind the lips that utter them. However, the obiter dicta pronounced by highest tribunals of justice are at times binding like the obiter dicta of Supreme Court of India conclusively binding on all inferior courts. Things said by the judge by way of illustration or just to make the point clear to the persons can also be termed as obiter dicta.

Ratio Decidendi - Ratio decidendi is a Latin phrase meaning "the reason" or "the

rationale for the decision". The ratio decidendi is "the point in a case that determines the judgement" or "the principle that the case establishes". In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends.

It is a legal phrase which refers to the legal, moral, political and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction—however, out of interests of judicial comity, they generally try to follow coordinate rationes. Landmark judgments arrive when a case comes up in the courts and every aspect of the case is taken up and then decided on merits. When similar cases have to be settled thereafter, the courts examine the similarity of the case and decide and give the same judgment as the previously decided one. These precedents are of importance not only as cases or landmark judgments but also as a important source of law. Therefore, ‘ratio decidendi’ is a combination of the facts and the decided judgment on a particular matter e.g. in a case between Sarita and Banu. The facts being that if Banu is negligent and has not done her duty, which due to her negligence results in some harm done to Sarita, then Banu will face a particular punishment and pay certain amount to Sarita. Such a decision arrived at and a judgment given by the court, judgment being that if a person does something negligently of which he owes a legal duty to take care, because of which another person suffers harm, he is likely to be punished for it. This judgment given in this case of Sarita Vs Banu then becomes a precedent and in subsequent cases of similar nature the ratio is followed. The ascertainment of the ‘ratio decidendi’ is the abstraction of the main points in a particular case. The whole process of the judgment and the law laid down in a particular case is the precedent in a case.

CUSTOMARY (CUSTOM ) LAW

A Custom is any established mode of social behaviour within the community. Various dimensions of human behaviour which are prescribed by the community or society hint at the conceptual frame of custom. It is considered as one of the mechanisms of social control and an appropriate direction for humans to live in the community and to allow the society to perpetuate. Customs which are concerned with less important aspects of social life are covered in this category. Most societies have certain customs with respect to the kind of dress one is expected to wear on various occasions. For example, wearing a black dress at a funeral ceremony in England but, white in India. Well-established customs are observed at burials and other solemn ceremonies, etc. No man is under an absolute compulsion to give a feast at the time of marriage or after the funeral of the deceased relative, etc. All these customs are followed due to the fear that non-observance of such customs may lead them to be socially outcaste. Such customs are non-binding in the sense that they are not obligatory to follow. People follow them due to the social pressure of public opinion. When a custom of this type is violated, society usually reacts by showing social displeasure or disapproval; but it has no sanction in the strict sense of the term. Such customs can be called as ‘Social Customs’. ‘Legal Custom’ occupies a place by itself in that its sanction is more certain in its operation than that of any other. “The effect of sanction”, writes Sir C. K. Allen,17 “is negative rather than positive: if the custom is not followed, certain desired consequences will not be brought about.” For example, if a particular custom is not followed, the marriage will not be treated as valid; the desired consequences of becoming a husband and wife will not be brought about. Children out of such marriage will not be treated as legitimate. Law, back by the opinion at the earlier stage and at later stages by the tribunals of the community, will forbid those relationships to be effected. Essentials of a valid custom can, broadly, be classified into – Formative Essentials and Operative Essentials. Antiquity,

Uniformity/Continuity, Certainty and Conscious acceptance as of right, etc. are the essential formative elements of a valid custom. Custom possessing these elements is prima facia valid though it may be unenforceable if it is unreasonable, opposed to morality, public policy, express enactments of legislature and for want of proof; all these are invalidating elements. Therefore, in order to be valid, a custom must be reasonable, should not be opposed to morality, public policy, express enactments of legislature and must be strictly proved. All these are operative elements. Hence, in order to be valid custom must possess all the formative as well as operative elements. Custom was immemorial when its origin was so ancient that the beginning of it was beyond human memory, so that no testimony was available as to a time when it did not exist.’ From the fact that the custom is ancient, it follows that it must be uniform (and not variable), definite and continuous, for these are the elements to establish its immemorial use. If there is discontinuance, such discontinuance destroys its stability. If a custom has not been followed continuously and uninterruptedly for a long time, the presumption is that it never existed at all . In order to be valid, custom must be certain and definite. Custom must be certain in respect of (i) its nature; (ii) its locality; and (iii) the persons whom it is alleged to affect. Opeino necessatis, that is, Conviction on the part of the members of the community that a custom is legally binding and the source of enforceable rights and obligations is one of the most essential elements of a valid custom. It is this conviction which distinguishes a legal custom from social custom. Therefore, in order to be valid, custom must have been consciously accepted as having the force of law. a custom must be reasonable is another essential requirement of a custom. The authority of usage is not absolute, but conditional on a certain measure of conformity with justice and public utility. This does not mean that the courts are at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think that a better rule could be formulated in the exercise of their judgment. A custom to be valid must not be opposed to principles of morality or public policy and must not be expressly forbidden by an enactment of the legislature. The evolution of a legal system, in most cases occurs from within society and not externally. As a result, in the process of evolution of the legal system, certain customs get transformed into or embodied in laws- resulting in the formation of customary law. This process is characteristic of all legal systems, in different parts of the world. Thus, in primitive society, custom and law may have been entirely undifferentiated, however as time went by some of the customs would have developed a form of official social sanction for non-compliance with them, while others would have retained simple social sanction. The first category of these customs gradually develops into law, in the evolution process .

Custom therefore played an important role in the development of any legal system. It therefore is essential, while trying to understand a legal system, to comprehend the complex process that led to the evolution of customary law. The Indian legal system that exists today has its origins in the system of Common Law that emerged in England. The Indian legal system, like the Common law system is replete with customary laws and principles and hence it is essential that to comprehend the Indian system, one understand the role of custom as a source of law.

LAW OF PRECEDENT”

A precedent is a statement of law found in the decision of a superior Court, which decision has to be followed by that court and by the courts inferior to it. Precedent is a previous decision upon which the judges have to follow the past decisions carefully in the cases before them as a guide for all present or future decisions. In other words, ‘Judicial Precedent means adjudgment of a Court of law cited as an authority for deciding a similar set of facts, a case which serves as authority for the legal principle embodied in its decision. A judicial precedent is a decision of the Court used as a source for future decision making. Decisions based on question of facts are not precedents. Judges must follow the binding decisions of Superior or the same court. Following previous binding decisions brings uniformity in decision making, not following would result in confusion. It is well settled that Article 141 of the Constitution empowers the Supreme Court to declare the law and not to enact the law, which essentially is the function of the legislature. To declare the law means to interpret the law. This interpretation of law is binding on all the Courts in India. This is called as precedent.

Types of precedent

Original precedent

Original precedent arises where the point of law in the case before the court has never been considered before and there has been no previous judicial decision on it. In such cases, the judge must use his or her own discretion in reaching a final judgment. They will generally adopt an approach known as reasoning by analogy, whereby they will looks at cases which involve a similar principle to the one they are dealing with and apply similar rules.

Binding precedent

Binding precedent is ‘normal’ precedent. It requires a court to follow a previous court decision made in a previous case in the same way. For a precedent to be binding on a judge in a later case, the material facts of the two cases must be similar. The precedent is only binding on courts lower or equal to the court where the precedent was made.

Persuasive precedent

Persuasive precedent is where a lower court makes a decision and a higher court can or may be allowed to use the precedent or decision, but they are not legally obliged to. There have been cases where lawyers will bring up evidence to show that the material facts of their case was the same as a decision made in an inferior court. It is up to the judge to decide if the case is sufficiently similar to allow them to take the merits of the case into consideration when they are making their judgment.

Authoritative Precedents : According to Salmond, an authoritative Precedent is one which Judges must follow whether they approve it or not. Authoritative Precedents are the legal sources of law. Authoritative Precedents establish law in pursuance of definite rule of law which confers upon them that effect. The authoritative Precedents must be followed by the Judges whether they approve of them or not.

Absolute: In case of absolutely authoritative Precedents, they have to be followed by the Judges even if they do not approve of them. They are entitled to implicit obedience.

Conditional: In the case of authoritative Precedents having a Conditional authority, the Court can disregard them under certain circumstances. Ordinarily they are binding but under special circumstances, they can be disregarded.

Declaratory Precedents - According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. In the case of declaratory precedent, the rule is applied because it is already law. In case of advanced countries, declaratory Precedents are more numerous. A declaratory precedent is good as a source of law as an original Precedent.

Precedent as a source of law.—Precedent has a binding force and, therefore, it is an important source of law. Expressing his views on prece-dents Blackstone pointed out that it is an established rule to abide by the former precedents where the same points come again in litigation. They also keep the scale of justice, even and steady and not liable to be waived away with every new judge’s opinion. Justice Cardozo also supports the view that adherence to precedents should be the rule and not an exception. The rule of precedents should, however, be abandoned if it is inconsistent with the sense of justice or derogatory to social, welfare policy. The practice of precedents has gained favour with English Courts be-cause it leads to certainty of law and also predictability of decision is always preferable to approximation of ideals. Again, it enables illogical and unsatisfactory decisions to be overruled to meet the ends of justice.

LEGISLATION

Legislation (or "statutory law") is law which has been promulgated (or "enacted") by a legislature or other governing body or the process of making it.[1] Before an item of legislation becomes law it may be known as a bill, and may be broadly referred to as "legislation", while it remains under consideration to distinguish it from other business. Legislation can have many purposes: to regulate, to authorize, to outlaw, to provide (funds), to sanction, to grant, to declare or to restrict. It may be contrasted with a non-legislative act which is adopted by an executive or administrative body under the authority of a legislative act or for implementing a legislative act.[2]

Under the Westminster system, an item of primary legislation is known as an Act of Parliament after enactment.

Legislation is usually proposed by a member of the legislature (e.g. a member of Congress or Parliament), or by the executive, whereupon it is debated by members of the legislature and is often amended before passage. Most large legislatures enact only a small fraction of the bills proposed in a given session.[3] Whether a given bill will be proposed and is generally a matter of the legislative priorities of government.

Legislation is regarded as one of the three main functions of government, which are often distinguished under the doctrine of the separation of powers. Those who have the formal power to create legislation are known as legislators; a judicial branch of government will have the formal power to interpret legislation (see statutory interpretation); the executive branch of government can act only within the powers and limits set by the law. The function and procedures are primarily the responsibility of the legislature. However, there are situations where legislation is made by other bodies or means, such as when constitutional law or secondary legislation is enacted. Such other forms of law-making include referendums, orders in council or regulations. The term legislation is sometimes used to include these situations, or the term primary legislation may be used to exclude these other forms. Under the general law, a person may obtain rights or be subject to obligations because of a particular legal relationship with another person. The relationship may arise because of agreement or because of a document made by a person conferring a power over the person’s property on another person. It may be a legal relationship found to exist because of a civil wrong committed by a person. These relationships are essentially narrow in their ambit and can not be unilaterally created under the general law for all citizens or for all citizens of particular classes. Only legislation, properly authorised and made, can unilaterally create or change rights and obligations of citizens generally, or change or affect the operation of the general law. Legislation may also be an option chosen to present a policy in a particularly powerful way or to create a state of affairs that can only be further changed or brought to an end by legislation.

Classification

Legislation may be broadly classified as Supreme, subordinate legislation. It is

Supreme when the sovereign authority itself make the law, as the law made by Indian Parliament. It is subordinate when the sovereign power is delegated to any other authority to make law, as the power delegated to a corporation to make law.

Supreme Legislation

The Supreme legislation is by the sovereign power of the state. Therefore, any other authority within the state can, in no way, control or check it. It is considered not only supreme but legally omnipotent. A classical exposition of this principle can be found in Dicey’s book, ‘The Law of the Constitution’. There is no legal limitation on its power. Indian parliament is also supreme. Though there are certain constitutional restrictions upon its power, it is not subject to any other legislative authority within the state. It cannot be repealed, annulled or controlled by any other legislative authority.

Subordinate Legislation

Subordinate legislation is legislation by any other authority than the Supreme authority in the state. It is made under the powers delegated by the Supreme authority. Such legislation owes its existence, validity, and continuance to the Supreme authority. It can be repealed by and must give way to sovereign legislation. Subordinate legislation is subject to parliamentary control. Five different forms of subordinate legislation can be identified. These are:

Colonial Legislation

The countries which are not independent, and are under the control of some other state have no Supreme power to make law. Such countries are of various classes: as colonies, dominions, protected or trust territories etc. The laws made by them are subject to the Supreme legislation of the state under whose control they are. Thus it is subordinate legislation. Britain has had many colonies and dominions. The laws made by them for the self-government are subject to alteration, repeal or supersession by the legislation of the British Parliament. As the colonies are fast achieving independence, and almost all the British dominions have uncontrolled power for legislation, therefore in the near future, we may not have this class of subordinate legislation.

Executive Legislation

When legislative powers are delegated to the executive, it is called executive legislation. Though the important function of the executive is to implement the laws and carry on the administration, it is always entrusted with some subordinate legislation powers also. Today, practically every law enacted by the legislature contains delegation clauses conferring law-making powers on the executive to supplement the statutory provisions.

Judicial Legislation

Powers are given to the judicature to make rules for the regulation of its procedure. In India, the Supreme Court and the high court both have the power to make rules for their respective procedure and administration.

Municipal Legislation

Municipal bodies are given powers to make bye-laws concerning their local matters. Byelaw made by a local body operates within its respective locality. In India, such municipal bodies are Municipal corporations, Municipal Boards, Zila Parishads, etc. There is a move for granting very wide powers to Panchayats. Thus, there is a possibility of expansion of this kind of subordinate legislation in our country.

Autonomous Legislation

When the Supreme authority confers powers upon a group of individuals to legislate on the matters entrusted to them as a group, the law made by the latter is called the autonomic law and the body is known as an autonomous body. A railway is an autonomous body. It makes bye-laws for the regulation of its administration, etc. A university is also an autonomous body.

Delegated Legislation

Delegated legislation is a kind of subordinate legislation. Generally the ‘delegation legislation’ means the law made by the executive under the powers delegated to it by the

Supreme legislative authority. It comes in the form of orders, by-laws etc. The Committee on Minister’s power said that the term delegated legislation has two meanings-Firstly, it means the exercise of power that is delegated to the executive to make rules. Secondly, it means the output the output or the rules or regulations etc. made under the power so given.

A CASE NOTE EXAMINING THE FIRST DE-FACTO CASE

OF SEXUAL DISCRIMINATION AT THE WORK PLACE: Air

India v Nergesh Meerza & Ors 1981 AIR 1829

Bench : J. Faizal Ali, J. Syed Murtaza & J. A. Vardarajan

Facts: The case imposed a challenge on Regulations 46 and 47 of the Air India Employees Service Regulations. With the challenge being posited on the grounds that the aforesaid regulation created a substantial degree of disparity between male (referred to as Air Flight Pursers) and female (Air Hostesses) (and within the Air Hostesses different operational standards dependent on whether one is working for Air India International on the International circuit or Indian Airlines on the domestic circuit) on multitude of grounds such as promotional avenues, differential retirement ages, conditions pertaining to termination of the Air hostesses services in cases of pregnancy or marriage (retirement age for them was 35 years as opposed to 58 for their “male counterparts” – according to Regulation 46). Furthermore, a more prosaic question was regarding the discretionary powers of the Managing Director who under Regulation 47 could increase the age of retirement as per his own behest. An aspect which is contested by the petitioners as being arbitrary.

Procedural History: The said matter was brought under the dais of a writ petition before the Supreme Court.

With previous iterations of the case having previously been presented before the National Industrial Tribunals ( one being the Khosla Tribunal (1965) while the other being the Mahesh Tribunal( 1972) ) Rule:

Article 14 Of The CONSTITUTION OF INDIA

Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15(1) Of The CONSTITUTION OF INDIA

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

Article 16 Of The CONSTITUTION OF INDIA

Equality of opportunity in matters of public employment

Regulation 46 Air India Employees Service Regulations

Retiring Age:

Subject to the provisions of sub-regulation (ii) hereof an employee shall retire from the service of the

Corporation upon attaining the age of 58 years, except in the following cases when he/she shall retire earlier:

(c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within four years of service or on first pregnancy, whichever occurs earlier. Regulation 47 Of Air India Employees Service Regulations Extension of Service.

Notwithstanding anything contained in Regulation 46, the services of any employee, may, at the option of the Managing Director but on the employee being found medically fit, be extended by one year at a time beyond the age of retirement for an aggregate period not exceeding two years, except in the case of Air Hostesses and Receptionists where the period will be ten years and five years respectively.” Issues:

Whether Regulation 46 & 47 are violative of Articles 14,15, 16 of the Constitution of India and thus ultra vires in whole or part?

Whether discretionary powers as enumerated under Regulation 47 can be deemed as being excessive delegation?

Analysis:

The judgment begins on the note of the narrative by explaining the emergence of the two entities of Air India Corporation and Indian Airlines, while dovetailing the question with the Khosla and Mahesh Awards of 1965 and 1972 respectively. On the question of said regulations being violative of Article 14, the court asserts that article 14 only forbids against hostile discrimination and not against reasonable classification. To substantiate this aspect, this judgment relies on a litany of previous judgments which state that treating equal and unequal’s differently does not amount to hostile discrimination. Thus said regulations for the concerned matter are not violative in whole or part of Article 14. The judgments echoes this ideologue by stating that where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination under Article 14.The court thereafter seeks to a laid down an illustrative, albeit not exhaustive, set of guidelines to assess whether the Air Hostesses and Air Flight Pursuers forged separate classes and by extension checking the supposed violation of Article 14. By assessing their promotional avenues, starting salaries and entry level qualification they are deemed as two distinct categories by the Court and thus the assertion of Article 14 being violated is rejected on the basis of reasonable and intelligible differentia.For the discrimination between Air hostess Air India and Indian

Airlines, the Court states that that happens owing to Air India’s conformity with laws of the United Kingdom. Furthermore, the Court examines a secondary line of argument, which purports that these regulations are on an arbitrary and unreasonable basis (by making a classification on the basis of sex) and thus by extension are ultravires to Article 14. To examine said aspect the Court states that while Article 16(2) purports that no discrimination should be made only on the ground of sex, however it never prohibits the state from discriminating on the grounds of sex and other considerations (as asserted in the case of Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee [1954] SCR 930[1]). With this basis, the Court rejects the violation of Article 16. Curiously, though, the case law or the court’s judgment by enlarge never seeks to elaborate on what the additional criterion was. The court on the aspect of termination of services on the instance of first pregnancy vehemently rejects the respondent’s assertion that women post childbirth seem to leave the job or alternatively their husbands do not allow for them to work and thus making it is essential to have a lower age of retirement for them. The Court surmises by stating that the organizations of the ilk of the Air India have to be prepared at any point whatsoever for absences which may arise due to the deaths/ infirmity amongst other reasons. As for the reasons put forward by the respondents, those are instances which can take place even in the absence of children, thus these assertions are prima facie baseless. The Court instead advocates for wholesale amendments to be made to said pregnancy clause whereby a criterion of retirement upon the birth of third child should instead be introduced in place of the incumbent clause. The reasoning behind it being based on a public health principle. Thereby deeming said regulation aspect is deemed as being arbitrary under Article 14. However, a similar stand of constitutional infirmity and arbitrariness is not applicable to the question of marriage within four years of service of the air hostess, as the court reflects Article 14 on grounds of utility, public health et.al.

Finally, on the question of whether the discretionary powers as consigned to the managing director are analogous to excessive delegation. The Court answers to this in the affirmative, whereby it is stated that by conferring unfettered and unguided control to the managing director to grant an extension, the real intention of the regulation makers is being defeated. For the words “at the option of”, grants more than sufficient power to the managing director which could lead to possible cases of discriminatory practice. Other aspects such as the absence of a provision to appeal to the Managing Director’s decision of not granting an extension to the air hostess or the absence of mechanism requiring conveyance of reasons for refusal to grant extension only support the aforesaid statement. Thus with the ambit of powers so wide and expansive it appears to be clear that Regulation 47, is violative of Article 14 by suffering from excessive delegation.

Holding

The court held the clauses regarding retirement and pregnancy as unconstitutional and thus ordered for them to be struck down. Furthermore, Regulation 47 experienced a similar fate, for it was found that the said regulation suffered from excessive delegation of powers without any reasonable guidelines to police the same.

UNION FOR CIVIL LIBERTIES (PUCL) AND

ANOTHER V. UNION OF INDIA AND ANOTHER

Case number: AIR[2003] SC 2363 Country: India Date of decision:

13 March 2003 Court / Arbiter: Supreme Court ( Supreme ) Relevant law :

Constitution, Article 19(a) (freedom of speech and expression), Article 19(2) (exemptions); Representation of the People Act ( Constitution, Other Law )

Decision:

Voters have a fundamental right to know relevant qualifications of candidates for office, including information about their income and assets. Accordingly, a section of a law stating that candidates could not be compelled to disclose any information about themselves other than their criminal records was unconstitutional.

Keywords:

Constitution

Freedom of expression (including RTI as element of or integral to)

Income and assets

Personal information (including personnel files, other records concerning or held by public servants)

Political information (including candidates, elections, political parties) Privacy (harm to private interests, including life, health, safety)

Case details:

Facts

In the earlier case of Union of India v. Association for Democratic Reforms and Another (2002), the Supreme Court had held that citizens have a right to know about public functionaries and candidates for office, including their assets and criminal and educational backgrounds, and found that right to be derived from the constitutional right to freedom of speech and expression. The Parliament then essentially nullified part of that ruling by amending the Representation of the People Act so as to require political candidates to disclose certain criminal records; namely, any charges or convictions for any offence punishable with imprisonment for two years or more. Moreover, the Act expressly stated that no candidate could be compelled to disclose any additional information, including educational qualifications and assets and liabilities, “notwithstanding anything contained in the judgment of any court or directions issued by the Election Commission” (Section 33B).

The petitioner in the instant case, the Union for Civil Liberties (UCL), filed a petition with the Supreme Court challenging the constitutionality of Section 33B. In particular, UCL contended that the provision was arbitrary on its face and violated fundamental rights of the voters as previously recognized by the Supreme Court; and “that without exercise of the right to know the relevant antecedents of the candidate, it will not be possible to have free and fair elections” (p. 6). The interveners submitted that the Amended Act was consistent with the 2002 judgment (p. 6) and “that it cannot be held that a voter has any fundamental right of knowing the antecedents/assets of a candidate contesting the election” (p. 32).

Decision

The Court reiterated the main findings in Union of India v. Association for Democratic Reforms and Another.

It observed that the judgment in that case was a final decision that had precedential effect and that, accordingly, Article 19(1) of the Constitution (freedom of speech and expression) should be interpreted to include a “fundamental right [of the voters’] to know relevant antecedents of the candidate contesting the elections” (p. 9). In other words, “information to a voter […] is one facet of the fundamental right [of freedom of speech and expression] […]” (p. 20).The Court ruled that Parliament cannot exercise its powers in violation of fundamental rights and has no power to declare a court’s decision as void or of no effect (p. 24). Therefore, once the Supreme Court held that a voter has a fundamental right to know candidates’ qualifications, this right may be limited only in cases provided by Article 19(2) of the Constitution (p. 24).The fundamental right of the voters to know relevant qualifications of the candidate is independent of any statutory rights under the election law (p. 41); when a statutory provision violates a fundamental right, such provision must be struck down (p. 35).

With respect to the relationship between the right to access asset declarations of the candidates and the right to privacy, the Court emphasized that the right to privacy is not absolute and “a person having assets or income is normally required to disclose the same under the Income Tax Act or such similar fiscal legislation” (pp. 29-30). This is especially true for candidates for public offices. Disclosure of asset declarations is “ the necessity of the day because of statutory provisions of controlling wide spread corrupt practices” (p. 30).

For all of the above reasons, the Court declared Section 33-B of the Amended Act “to be illegal, null and void”

Define the term Interpretation. Explain the objectives of interpretation

Recent Posts