Negligence: Definition, Theories and Kinds

Q. Define 'Negligence'. What are its kinds and theories? [20 marks - 2023]

Definition of Negligence

Negligence is the breach of duty that is caused by the omission to do something, which a reasonable man would do under those circumstances.

Negligence is conduct that fails to conform to the standard established by law to protect people against risk and unreasonable harm.

According to Austin, "Negligence is the breach by omission of a positive duty."

According to Salmond, "Negligence is the state of mind of under indifference towards one ‘s conduct andits consequences."

According to Clark, "Negligence is the omission to take such care under the circumstances it is thelegal duty of a person to take it is in a no sense a positive idea and has nothingto do with a state of mind."

Theories of negligence

Subjective theory

According to Austin negligence is a faulty mental condition that is penalized by the award of damages. Negligence according to Salmond essentially consists of the attitude of undue indifference concerning one’s conduct and its consequences. Winfield also supports this theory and says that as a mental element in tortious liability negligence usually signifies a total or partial inadvertence of the defendant to his conduct and for its consequences. In exceptional cases, there may be full advertence to both the conduct and consequences but in any event, there is no desire for the consequences and this is the touchstone for distinguishing it from intention.

Objective theory

According to this theory negligence is not a particular state of mind or form of men’s Rea at all, but a particular kind of conduct. To drive at night without light is negligence because to carry lights is a precaution taken by reasonable and prudent man for the avoidance of accidents.

Essential conditions for liability of negligence

1. There should be breach of some legal duty.

2. The duty should be towards the plaintiff.

3. The breach was on the part of the defendant.

4. There was injury or damage.

Kinds of negligence

Comparative negligence

In a situation where the plaintiff is partially responsible for his injuries is called camparative negligence. As a consequence, the amount of damages to be paid is reduced by the percentage of fault. For example, in a car accident, the plaintiff is to be awarded Rs. 50000 . it has been established that the plaintiff is himself responsible for 40 percent of injuries. The amount to be awarded would be reduced by 40 percent.

Contributory negligence

Contributory negligence depends entirely on the question of whether the plaintiff could reasonably be avoided the consequences of the defendant’s negligence. In this type of negligence it lies to the plaintiff that he was completely unaware of the consequences of the negligence. On the other hand, the defendant has to prove that the plaintiff could have avoided the damage using his knowledge and skills.

Combination of comparative and contributory negligence

This is a modified version of contributory negligence. In such cases, if the plaintiff is not responsible for more than 50% of his injuries, we can recover the damages.

Gross negligence

Cases in which the negligence was so careless that it showed a complete lack of concern for the safety of others, are called gross negligence. Gross negligence is a much serious form of negligence that goes a step further than simple careless actions.

Vicarious negligence

Vicarious negligence is the liability of another person or animal. For example, if a dog causes injuries to some person, the owner of the owner would be held liable for the damages.

Mediate and Immediate Possession

Q. Distinguish between mediate and immediate possessions. [10 marks - 2023]

Q. Distinguish between mediate and immediate possessions. [20 marks - 2022]

Q. Short note on mediate and immediate possessions. [4 marks - 2019]

Mediate and Immediate Possession

Mediate Possession

1. When something is possessed through a mediator, the possession is known as Mediate possession. The mediators may be friends, servant or agents.

2. Also known as indirect possession.

Examples of mediate possession

1. Mr X purchase book through his servant.

2. Mr. Y purchases a house and gives his friend to stay.

Immediate Possession

1. When someone possesses something himself, this is immediate possession.

2. Also known as direct possession.

Examples of immediate possession

1. Mr. X purchase book himself and keeps with him.

2. Mr. Y purchase a house and stays there.

Legal Rights : Characteristics and Types

Q. Write a short note on positive and negative right. [10 marks - 2023]

Q. Short note on Proprietary and personal right. [4 marks - 2019]

Q. Contingent right [4 marks - 2019]

Q. Explain the characteristics of a legal right. [10 marks - 2019]

Q. Dominant and Servient Right [4 marks - 2018]

Q. Perfect and Imperfect Right [4 marks - 2018]

Q. What are the different kinds of legal rights? Mention the different kinds of legal rights. [20 marks - 2018]

Legal Rights

The term right is defined as any action of a person permitted by law. Legal rights are the rights that are given to the citizens of a country by the government to enjoy certain freedoms.

Characteristic of Legal Rights

1. Legal rights exist only in human society.

2. Since rights are present in a society, these cannot be exercised against the society or against social good of the society.

3. Legal rights gives momentum to the development of the nation.

4. These rights are recognized by the all people in a society.

5. These are rational and moral claims.

6. Rights are equally available to all the people without any kind of discrimination.

7. Legal rights are dynamic. They can be changed according to the situations and conditions prevailing in the society.

8. Rights are not absolute.

9. These are protected and enforced by the laws of the state.

Kinds of Legal rights

1. Positive Rights and Negative Rights

A positive right is a right when some action needs to be done by the person who has the corresponding duty. The person on whom the duty lies must perform some positive acts.

The negative rights are the rights which omit the person from performing certain acts. Negative rights correspond to negative duty. The person on whom such duty is imposed is restrained from performing certain acts.

2. Real and personal rights

Real rights are imposed on persons in general. Personal rights are the rights which are imposed on determinate individuals.

3. Personal and Proprietary Rights

Personal rights are the right to respect the owner of the right. The personal right has no economic value and this right is related to personal status or well being. Example the right to live with dignity, the right to freedom of speech and expression.

The proprietary right is given in respect of the owner of the property. These rights are rights which has some monetary value or economic value and constitute the estate of the person. Example-patent rights, right to land, debt etc.

4. Perfect and Imperfect right

Perfect rights are protected and recognized by law and the suit can be instituted in the court against the wrongdoer for the breach of it. Example: A has taken the loan from B. B has the duty to pay the loan and A has the perfect right to claim the loan amount. If B fails to pay then A has the right to file the suit in the court.

Imperfect rights are those rights which are neither recognized nor protected by law. Example: if the loan becomes time-barred, then he can claim his money back but it cannot be enforced by law.

5. Vested and Contingent Rights

A vested right is a right which is vested on the person from the very beginning. No events are required to take place for conferring the rights of an individual. It depends on the present situation.

Contingent rights are rights which are conferred on the happening or non-happening of certain acts. This right depends upon future acts. If the act which is prescribed take place then only the right will be conferred on the person.

6. Servient and dominant rights

Servient rights are subjected to encumbrance while the dominant rights are enjoyed by the dominant owner.

Custom as a source of Law

Q. What do you know about "Local Custom" and "General Custom"? [4 marks - 2023]

Q. Why the custom has been accorded the source of law? Explain and illustrate. [10 marks - 2023]

Q. What is conventional custom? When does it become binding? [10 marks - 2019]

Q. What are essentials of valid local custom? [10 marks - 2018]

Custom

Custom can simply be explained as those long-established practices or unwritten rules which have acquired binding or obligatory character.

There are multiple views on whether custom can be considered as a source of law. Austin opposed custom as a law because it did not originate from the will of the sovereign. However, Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign.

In India many customs have been incorporated as law. For example, the customary practice of Saptapadi or sat phera has been incorporated in Section 7 of the Hindu Marriage Act, 1955.

Customs can be of two types:

Customs without sanction: These are non-obligatory in nature.

Customs with sanction: These are binding in nature and are enforced by the

State. These customs may further be divided into the following categories:

(1) Legal Custom: Legal custom is a custom whose authority is absolute; it

possesses the force of law. It is recognized and enforced by the courts. Legal

custom may be further classified into General custom and Local custom.

(a) General Customs: Customs that prevail throughout the territory of the State.

(b) Local Customs: Local customs are applicable to a part of the State, or a

particular region of the country.

(2) Conventional Customs: Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of that trade. For instance, an agreement between landlord and the tenant.

Essentials of a valid custom:

The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:

1. Antiquity: In order to be legally valid customs should have been in existence for a long time, even beyond human memory.

2. Continuous: A custom to be valid should have been in continuous practice without any kind of interruption.

3. Exercised as a matter of right: Custom must be enjoyed openly and with the

knowledge of the community. It should not have been practised secretly.

4. Reasonableness: A custom must conform to the norms of justice and public utility.

5. Morality: A custom which is immoral or opposed to public policy cannot be a valid custom.

Legal Person : Definition, Kinds, Examples and Theories

Q. What are the kinds of persons? Explain kind of legal person. [4 marks - 2023]

Q. What do you understand by the term 'Legal Personality'? What are its theories? [20 marks - 2022]

Legal Entity

There are two kinds of legal entities: Human and non-human person

Human person are known as the natural persons in legal terminology.

Non-human persons are known as Legal Persons or Juristic Person in law.

Legal Person

A legal person or a juristic person is a person created by the law for legal purpose. These are not human beings. The legal persons have legal rights, they are represented in the court of law by their authorised representatives.

Examples of Legal Persons

1. Corporations

2. State

3. Deities

4. Animals

5. Rivers

Theories of Legal Person

Fiction Theory

The Fiction theory identifies only human beings as proper ‘persons'. Certain groups of human beings are regarded as persons, for certain purposes only by a fiction of law and they have no real personality. The prominent jurists Savigny, Salmond and Dicey support this theory. This theory is very popular because it is not based on any metaphysical notion or argument. It is argued on the basis of this theory that as a juristic person has only a fictitious will, it cannot commit crimes.

Concession Theory

The Concession theory states that the creation of juristic personality is absolutely at the discretion of state. This theory has been used in many cases to suppress autonomous institutions.

Realist Theory

Realist theory also called organic theory, says that a group has a real will, real mind, and a real power of action. A corporation has all the characteristics which a natural person has. Therefore, juristic person are real in the same sense in which human beings are. The main exponent of this theory is Gierke.

Bracket Theory

Also known as Symbolist Theory: This theory says that the members of the corporation are the only persons who have rights and duties. The granting of juristic personality means putting a bracket around the members in order to treat them as a unit. This is done for purposes of convenience. In other words, juristic personality is only a symbol which helps in effectuating the interest or the purpose of the group. The theory speaks great truth when it says that the groups are only to effectuate the interest of its members, but it has certain weaknesses also.

Vested and Contingent Ownership - Jurisprudence

Q. Explain vested and contingent ownership. [4 marks - 2023]
Q. Define 'Vested' and 'Contingent' ownership and what is the difference between both the kinds of ownership? [20 marks - 2022]

Vested and Contingent Ownership

Ownership is the legal right on a property. Ownership can be of two types Vested and Contingent.

Vested Ownership

Vested ownership is when the title to the property is perfect. There is no condition attached. For example, two persons are sharing ownership of a property. If one of them die the other person gets vested ownership to the property.

Contingent Ownership

In contingent ownership the person does not have a clear title to the property. On fulfilment of certain conditions he may gain the ownership. There may be two types of conditions attached to the claim of ownership. Condition precedent and condition subsequent. On fulfilment of condition precedent, clear title is obtained. On fulfilment of condition precedent the ownership is extinguished.

Difference between Vested and Contingent Ownership

Vested Ownership	Contingent Ownership
There is no condition in Vested Ownership	Contingent Ownersheip is conditional
Ownership is automatically vested	Ownership is transferred on fulfilment of the underlying condition
Ownership can not be destroyed	Ownership is destroyable

Preamble

Q. Short note on Preamble [4 marks - 2019]

Preamble

A preamble is an introductory statement in a document that explains the document's purpose and underlying philosophy. It's often used in the opening paragraphs of a statute, where it may recite historical facts relevant to the subject of the statute.

Codification of Law

Q. Short note on Codification [4 marks - 2019]

Codification of Law

Codification is the process of compiling laws into an orderly formal code. The code is a systematic compilation of existing laws to be included in a legislative statute. It is a compilation of all the laws in force, including the enacted laws and case law, covering a complete legal system or a specific area. A code can make the formulation of legal principles and rules more concise, clear, and thorough, so that people can understand the rules more quickly and comprehensively.

Strict Interpretation of Taxation Statutes

Q. What do you understand by strict interpretation of taxing statutes? Explain with the help of leading cases. [20 marks - 2020]

Q. What do you understand by the strict interpretation of tax laws? Explain with the help of case laws. [20 marks - 2019]

Strict Interpretation of Taxation Statutes

Rule of Strict Interpretation

Strict rule of interpretation is one of the principles used to interpret financial and penal statutes. According to this rule, plain, clear and direct meaning is given to words which are commonly used by the general public. Court cannot give particular meaning to a word which is not clear by making a presumption that particular meaning is the intention of the legislature. Court cannot under the guise of possible or likely intention of the legislature, give meaning to the words which are not clear and where contextual meaning cannot be made out.

Rule of Interpretation applicable to Taxation Statute

Taxation statute is a fiscal statute which imposes the pecuniary burden on the taxpayer. So such statutes are construed strictly. Plain, clear and direct grammatical meaning is given. Where there are two possible outcomes then that interpretation is given which is in favour of assessee.

A tax is imposed for public purpose for raising general revenue of the state. A taxing statute is to be strictly construed. Lord Hasbury and Lord Simonds stated: "The subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to the natural construction of its words."

Reasons for Applying of Strict Rule on Taxation Statute

1. Creates financial liability: Taxes creates a financial liability on the taxpayer and thus, is considered as penalty on the taxpayer. Thus, unless the imposition of tax is clearly backed by law, no tax can be imposed.

2. Eradicate loopholes: It is possible that the assessee might use some shortcomings in the law as a loophole and take advantage of it. As tax results in pecuniary burden so the benefit of doubt is given to assessee in case of any contradictions.

3. No scope of presumptions: Strict rule is applicable to taxation statutes, so courts are bound to give clear and plain meaning to the words. There is no presumption of tax or intendment of the legislature to impose tax unless clearly and specifically provided.

Case References

1. H. H. Lakshmi Bai vs. CIT - [(1994) 206 ITR 688, 691 (SC)].

2. ACIT vs. Velliappa Textiles Ltd. (2003) 263 ITR 550 (SC)

3. Associated Cement Co. Ltd. vs. Commercial Tax Officer AIR 1981 SC 1887

4. A. V. Fernandez vs. State of Kerala, [AIR 1957 SC 657]

External Aids to Interpretation of Statutes

Q. Explain the external aids of construction. [20 marks - 2019]

Q. Explain the value of external aids in the construction of statutes. [20 marks- 2017]

External Aids to Interpretation of Statutes

Aids means help for interpretation of statutes. External aids are the helps sourced from outside the statutes. Using external aids for interpreting statutes plays a crucial role in legal analysis. These aids provide valuable insights and guidance to understand the meaning and intent behind legislative provisions.

The following External Aids are commonly used in Interpretation of Statutes

Case law

Case law is the most widely used external aid. Judicial decisions on related and similar issues based upon interpretation given by courts in previous cases provide a remarkable help in deciding current case.

Statements of Objects and Reasons

The introducer of any bill would have justified its enactment, known as the Statements of Objects and Reasons, hold significant importance in the process of interpretation.

In the Ashwini Kumar Ghose v. Arabinda Bose case, Chief Justice Patanjali Shastri expressed that the Statements of Objects and Reasons should not be considered an external aid to interpretation. However, in the case of State of West Bengal v. Subodh Gopal Bose, Justice S. R. Das took and opposite view and considered these essential in deciding the case.

Historical Facts

Historical facts play a crucial role in establishing the context in which a statute was enacted, providing background information and aiding in interpretation.

Scientific Inventions

In the interpretation of statutes, it is essential to consider any subsequent developments related to the statute’s provisions. Society is continuously progressing and rapid advancements are occurring in various domains. Therefore, while interpreting statutes designed to govern these developments, it is important to consider these evolving circumstances.

A notable case illustrating this principle is State v. J. S. Chawdhry.

Other Statutes

When a statute lacks clarity regarding its intended meaning, other statutes in pari materia that deal with the same or similar subjects can be considered for interpretation. It is also an external aid to the interpretation of statutes.

In the case of State of Madras v. A. Vaidyanath Iyer, the accused, an income-tax officer, was charged with accepting a bribe. The trial court sentenced him to six months of rigorous imprisonment. However, the High Court acquitted the accused upon appeal, suggesting that he may have borrowed money instead of accepting it as a bribe.

Foreign Decisions

Decision by the foreign courts in similar issues are generally considered for as a source of contextual help. However, the decisions of foreign courts do not bind Indian courts and such decisions are merely persuasive. In the case of M. V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd., the Supreme Court took a different stance from the English courts when interpreting the phrase “damage caused by a ship” under Section 443 of the Merchant Shipping Act, 1958.

Dictionaries and Textbooks

When a word is not defined in the statute itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in the selection of one out of the various meanings of a word, regard must always be had to the scheme, context and legislative history.

Interpretation of Statutes - Meaning, Objectives and Importance

Q. What do you mean by Interpretation of Statutes? Discuss the purpose and importance of Interpretation. [20 marks- 2017]

Q. What do you mean by interpretation? [4 marks - 2019]

Interpretation of Statutes - Meaning, Objectives and Importance

Meaning

Interpretation is the process to determine the meaning of the statutes or other legal provision. It is also known as statutory construction. A statutory provision may be understood in more than one way depending on the words used to construct the rule. The rules of interpretation provides a framework which ensures that the most suitable meaning is considered for each scenario.

Objectives or Purpose

The main objective or purpose of statutory interpretation:

1. Understanding the intent of the legislators: The main purpose of interpretation is to understand the intent of the legislators. Once this is understood and established, steps to be taken to achieve this intent.

2. Protecting rights: Statutory interpretation should focus on protecting and prioritising the rights and interests of the parties.

Importance

1. Fair resolution of legal disputes: The process of statutory interpretation enable courts and other bodies involved in adjudication to apply the law to specific cases and resolve legal disputes fairly.

2. Prevent misuse of power: Statute worded in ambiguous language may enable government officials to interpret it in ways that allow them to exercise their powers arbitrarily. Statutory interpretation by the courts plays an important role in preventing this misuse.

3. Prevent crime: Narrow interpretation of criminal statutes may not be capable of curbing crimes. Suitable interpretation has the capability to both prevents crime and safeguards individual rights.

4. Swift delivery of justice: The rule so interpretation provides tools to promptly and accurately understand the law. This helps in preventing delays in the delivery of justice.

Judicial Activism

Q. Write an essay on Judicial Activism [20 marks - 2022, 2019, 2017]

Meaning

The term Judicial Activism was coined by Arthur Schlesinger Jr. in his article "The Supreme Court: 1947". Its presence can be seen in India since the Emergency days.

The judiciary, as the guardian of the Constitution, plays an important role in upholding and promoting the rights of citizens. The active role played by the judiciary while guarding the rights of citizens and maintaining the constitutional and legal system of the country is known as judicial activism. The judicial activism, sometimes becomes judicial overreach because of encroaching upon the areas of the executives.

Definitions

The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”

V.D. Kulshrestha opines that when the judiciary becomes a key player in the law making process, which may be termed as encroachment, is termed as Judicial Activism

The concept of Public Interest Litigation (PIL) is one of the many outcomes of the Judicial activism.

Types of Judicial Activism

(i) Judicial review

The judiciary has been empowered to interpret the constitution and to declare any such law or order of the legislature and executive void, if found in conflict with the Constitution.

(ii) Public Interest Litigations (PIL)

Any public spirited person may file a petition in the interest of large public. There must not be any personal interest in the litigation.

(iii) Constitutional interpretation

The judiciary has power to interpret the constitution within a predefined framework.

Importance of Judicial Activism

It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.

Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian judiciary has been considered as the guardian and protector of the Indian Constitution.

There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Articles 32 and 226 of the Constitution provides the power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.

According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.

Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973.

Case references

(i) In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more period than they would have, had they been convicted.

(ii) IC Golaknath case: Fundamental Rights are not amenable by the Parliament as stated in Article 13. To amend the Fundamental rights a new Constituent Assembly would be required.

(iii) Kesavananda Bharati case: This is also known as the basic structrue doctrine case as basic structure of the Constitution was deined in this case. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.

Merits of Judicial Activism India

(i) Judicial Activism establishes a system of balances and controls in the functioning of the government.

(ii) It ensures and protects the public rights.

(iii) Misuse of power by the government machinery would be rampant without the Judicial Activism.

(iv) In the issues where the legislature cannot take a decision, Judicial Activism is the only solution.

Demerits of Judicial Activism

(i) There is a possibility of limiting the functioning of the government.

(ii) Separation of power is violated due to judicial overreach.

(iii) If any judgement is with selfish motives, this may harm the public at large.

Doctrine of Colorable Legislation

Q. Explain the doctrine of Colorable Legislation. [4 marks - 2022]

Q. Colorable Legislation [4 marks - 2021]

Doctrine of Colorable Legislation

The doctrine of colorable legislation puts restrictions on the legislature while framing laws so that the legislature cannot transgress the provisionso enshrined under the constitution of India.

In KC Gajapati vs State of Odisha, the SC explained the doctrine and held that:

if the constitution of a State distributes the legislative spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power or not.

Doctrine of Pith and Substance

Q. Explain the doctrine of Pith and Substance. [4 marks - 2022]

Q. Explain the rule of 'Pith and substance'. [10 marks - 2019]

Q. Explain the doctrine of 'Pith and Substance'. [10 marks - 2017]

Doctrine of Pith and Substance

The doctrine states that the state and the union governments should enact laws within their specified areas as enshrined under seventh schedule and will not encroach upon the other's teritory. If however there is incidental encroachments, the courts will apply the doctrine of Pith and Substance

However, if one among the state and the Centre does encroach upon the sphere of the other, the courts will apply the Doctrine of Pith and Substance.If the true object of the legislation relates to a subject within the competence of the legislature that enacted it, it should be held to be intra vires although it may incidentally encroach on the matters not within the competence of the legislature.

The doctrine was applied for the first time by the Supreme Court in State of Bombay vs FN Balsara and upheld this. The State of Maharashtra restricted the sale and possession of liquor by the provisions of the Bombay Prohibition Act and the same was challenged with the rationale that it was an interference on the act of importing and exporting of the liquor through the borders. The apex court held that the impugned legislation was in pith and substance a State subject even though it incidentally encroached the subject enumerated in List I.

Strict Interpretation of Penal Statutes

Q. What do you understand by the strict construction of penal statutes? Explain with the help of decided cases. [20 marks - 2017]

Q. What are the Strict Construction and Penal Construction of a Statute? [4 marks - 2018]

Q. Explain and illustrate the rules which the courts apply in interpreting the penal statutes. [20 marks - 2020]

Q. "Penal statutes are to be interpreted strictly". Explain. [ 20 marks - 2021]

Q. What do you understand by strict construction of penal statutes? Explain with the help of leading cases. [20 marks - 2022]

Q. Is a penal statute capable of wide interpretation? If so in what circumstances? [20 marks - 2023]

Strict Interpretation

Strict Interpretation imposes restrictions on the court to apply the text of the stututes as it is written. If the language is unambiguous, a judge must apply the plain meaning of the language and cannot consider other evidence that would change the meaning.

Constructions may be applied only when there is absurdity/ambiguity in the test. A provision is said to be strictly interpreted when the language of the text is unambiguous and given in its exact and technical meaning no other equitable considerations or reasonable implications can be made.

Penal Statute

The statutes which impose penal liabilities on a convicted person is said to be a penal statute. Essential ingredient for penal statute is punishing certain acts or wrongs. These statutes defines a criminal offense and prescribes its corresponding penalty (fine, or imprisonment).

Strict Interpretation of Penal Statutes

As a general rule, strict construction must be applied to criminal statutes. This means that a criminal statute may not be enlarged by implication or intent beyond the fair meaning of the language used or the meaning that is reasonably justified by its terms.

The strict construction of criminal statutes complements the rule of lenity, which holds that ambiguity in a criminal statute should be resolved in favor of the defendant.

According to Lord Esher, if two possible constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from the penalty rather than the one which imposes penalty.

In the Commissioner of Customs (Import), Mumbai v. M/s Dilip Kumar and Company & Ors., 2018, the SC held that “The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocent might become victims of discretionary decision making.”

In Motibai v/s R. Prasad (1970), it was stated that Court should not try to add new words on its own, while interpreting a Penal statute. Courts are required to do Grammatical Interpretation of Penal Statutes.

Rules of Interpretation of the Constitution of India

Q. What canons of interpretation Indian judiciary adopts while interpreting the Indian Constitution? Examine. [20 marks - 2023]

Q. What are the rules for interpretation of Indian Constitution? Explain. [20 marks - 2019]

Q. Discuss the rules for interpreting the Indian Constitution. [20 marks - 2017]

Rules of Constitutional Interpretation in India

The true spirit of constitutional applicability lies in the way the courts interprete the provisions of the consitution. Constitution is made for the people of India, hence it is utmost important that the judiciary apply their minds while interpreting the constitution of India.

The following approaces are used to interprete the Constitution of India

1. Textual Approach of interpretation

In general the rule of interpretation of statute is to use literal rule of interpretation. Under this approach the court focuses on the literal meaning of the constitutional provisions. According to this rule, the words, pharases and sentences of a statute are ordinarily to be understood in their in their literal and grammatical meaning.

In A.K.Gopalan case the Supreme Court gave literal interpretation to Article 21 of the Constitution and refused to infuse the concept of procedure established by law with the principles of natural justice.

2. Purposive Interpretation

In this interpretation the courts tries to look into the purpose for which the the provision or the statute in question was enacted in order to derive the correct interpretation such that it result in delivery of justice.

The Supreme Court in the case of State (NCT of Delhi) vs Union of India held that the judiciary must interpret the Constitution having regard to the spirit and further by adopting a method of purposive interpretation.

3. Doctrinal Approach

The following established doctrines are used by the courts to interpret the constitutional provisions

(a) Doctrine of Colorable Legislation

The doctrine of colorable legislation puts restrictions on the legislature while framing laws so that the legislature cannot transgress the provisionso enshrined under the constitution of India.

In KC Gajapati vs State of Odisha, the SC explained the doctrine and held that:

(b) Doctrine of Pith and Substance

(c) Doctrine of Eclips

The Doctrine of Eclipse states that any law which is in contradiction with fundamental rights is invalid to the extent to which it is violating the fundamental rights. As soon as the inconsistency is removed, it will become valid automatically. The law remains overshadowed by the fundamental right.

In the Keshav Madhav Menon v. State of Bombay case, the petitioner was prosecuted under the provisions of the 1931 act, the Indian Press (Emergency Powers) Act, for publishing a pamphlet with no permission.

In the case of FN Balsara, the Court declared Section 13(b) of the Bombay Prohibition Act of 1949 as void because it violated Article 19(1) (f) of the Constitution. The Court again held that only the part of the statute that is violative of Part III is inoperative and not the whole Statute.

(d) Doctrine of Severability

This doctrine provides that when any provision of a law which is not consistent with the fundamental rights, can be separated and will be declared void by the Court, the rest of the provision remains consistent with the relevant provisions.

The doctrine was applied by the Apex Court in the case of A.K.Gopalan v. State of Madras, where it was held that Section 14 of the Preventive Detention Act, 1950 was inconsistent with Article 22 of the Constitution only to the part which prohibited the person detained to make representation or even disclose the grounds to the court was ultra vires.

Essential Ingredients of Legal Right

Q. Discuss essential ingredients of legal rights in brief. [4 marks - 2023]

Essential Ingredients of Legal Rights:

Ownership: A person must be the owner of a right.

Duties: Rights and duties are important elements of law, and are correlated with each other.

Consideration: A vital element in the law of contracts, consideration benefits both parties and separates a legally enforceable contract from a legally unenforceable "mere promise".

Acceptance: An essential concept in law, acceptance is one of the elements required for a contract to be legally binding.

Capacity: An important element of the ability to lawfully sign and validly enter a contract.

Contract legality: A critical component of a valid contract, legality requires the contract to follow the laws of the state and not be against public policy.

Public and private rights: Legal rights can be considered as both public and private. Public rights are those rights which are vested within the state, that means every individual is subject to such right

The Doctrine of Harmonious Construction

Q. "The words of statute, when there is a doubt about their meaning is to be understood in the sense, in which they best harmonize with the subject matter of the enactment." Discuss. [20 marks - 2023]

Q. Explain the rule of Harmonious Construction. [10 marks - 2020, 2019, 2017]

The Rule of Harmonious Construction

The doctrine of Harmonious Construction is used to remove the conflicts between two or more statutes or between two or more parts of the statutes. According to this rule, a provision of the statute should not be interpreted or construed in isolation but as a whole, so as to remove any inconsistency or repugnancy. The courts must avoid a clash on contradicting provisions and they must construe the opposing provisions so as to harmonize them. When the court is unable to reconcile the differences between opposing provisions, the courts must interpret them in such a manner that both the opposing provisions are given effect as much as possible.

Objective of Harmonious Construction:

The main objective of harmonious construction is to avoid any conflict between two provisions of a statute by harmonizing it.

The real legislative intent cannot be to provide for something in one provision and deny the same in other one. It is considered to be unintentional and as such, is required to be cured by way of harmonious construction.

Basis of Harmonious Construction:

The Doctrine of Harmonious Construction is based on the principle of law that every statute has been formulated with a specific purpose and intention and thereby should be read as a whole. To avoid conflict, the adopted Interpretation of the Statute should be consistent with all its provisions.

Principles of the Rule of Harmonious Constructions Laid down in leading cases:

1. Commissioner of Income Tax Vs Hindustan Bulk Carriers, 2003

The Courts must avoid a head on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them.

2. Sultana Begum Vs Premchand Jain, 1997

When it is impossible to completely reconcile the differences in contradictory provisions, the Courts must interpret them in such as way so that effect is given to both the provisions as much as possible.

Leading cases on Doctrine Of Harmonious Construction

1. Venkataramana Devaru & Ors. Vs State of Mysore & Ors., AIR 1958

The Supreme Court applied the Rule of harmonious construction in resolving a conflict between Articles 25 (2)(b) and 26 (b) of the Constitution of India

2. M. S. M. Sharma Vs Krishna Sinha & Ors, AIR 1959

The Supreme Court applied this rule to resolve the conflict between Articles 19 (1)(a) and 194 (3) of the Constitution of India

Golden Rule, Literal Rule and Mischief Rule of Interpretation : A comparative study

Q. How does Golden Rule of Interpretation differ from Literal Rule? [20 marks - 2023]

Q. What are the three general rules of statutory interpretation? Illustrate. [20 marks - 2022]

Q. What do you mean by "Literal or Grammatical Interpretation". [4 marks - 2022]

Q. Explain 'Literal Rule' of Interpretation. [10 marks - 2021]

Q. Discuss the 'Golden Rule of Interpretation' with the help of decided cases. [20 marks - 2021]

Q. Explain and illustrate the rules which the courts apply in interpreting the penal statutes. [20 marks - 2020]

Q. Elucidate and illustrate the Golden Rule. [10 marks - 2019]

Q. What is meant by mischief rule? Explain with the help of recent Indian cases. [20 marks - 2019, 2018]

Q. What do you understand by the Golden Rule of Interpretation? Explain with case laws. [20 marks - 2019]

Q. What is the 'Golden Rule of Interpretation'? Why is this also called the modifying rule? Discuss with case laws. [20 marks - 2017]

Literal Or Grammatical Rule Of Interpretation

The literal rule of interpretation considers the natural or ordinary meaning of the words in question. The basis of this rule is that the legislature's aim while making a provision was represented through words, which must be read according to grammatical standards.

Advantages Of Literal Rule Of Interpretation

The advantages of the literal rule of interpretation are as follows:

1. It enables the common man to understand the statue.

2. It results in a quick decision as the meaning can be found in a dictionary or other sources.

3. It provides no scope for judges to use their own opinions or prejudices.

Disadvantages Of Literal Rule Of Interpretation

1. There is a possibility of creating loopholes in the law.

2. This may lead to injustice as it fails to recognize the complexities and limitations of the English Language.

3. It can lead to absurd decisions.

Case law

In Subramanian Swamy v/s Dr Manmohan Singh and another, the Supreme Court found that a sanction for prosecution of respondent for breaches under the Act committed while holding an office of a minister but afterwards quitting but continuing to be a Member of Parliament is not required under Section 19 of the Prevention of Corruption Act, 1988. The court further stated that neither the 1988 Act nor the Code of Criminal Procedure, 1973 prohibits a citizen from filing a complaint about the trial of a public servant who is accused of committing an offence. As a result, a citizen's private complaint about the prosecution of a minister for violations of the Act is feasible.

Golden Rule Of Interpretation

Limitations of the Literal Rule is mitigated by the Golden Rule of Interpretation. The golden rule interprets the words in such a way that the absurdities, ambiguities, injustice, inconvenience, hardship, inequity, and anomalies of literal interpretation are discarded in such a manner that the purpose of the Legislation is fulfilled.

The Golden Rule has two approaches:

1. Narrow approach

If the word used in the statute is ambiguous having more than one meaning, it's upon the judge to apply the meaning that avoids any kind of absurdity. In the case of R V. Allen (1872) and Alder V. George (1964) narrow approach was used.

In R. v/s. Allen, the accused was charged with violation of Section 57 of the Offenses Against the Person Act,1861. According to this section, a married person should marry some other person during the lifespan of the previous spouse who is guilty of an offence. Because civil courts do not recognise second marriages, the literal rule will not be applicable. The golden rule was used to avoid ambiguity in the meaning of the word marriage, which means to go through a marriage ceremony.

2. Wide approach

In the cases where there's just one literal meaning of a word, but applying it would cause absurdity, the Wide Approach is used. Using this, the court may change the definition of the word to avoid absurdity.

In re Sigsworth: Bedford v/s Bedford, also known as the MFP case, a mother is murdered by her son. According to the provision in the Administration of Justice, the mother's inheritance would be inherited by her next of kin, i.e., her son. This was the exact meaning of the clause, but the court didn't apply it in this case and instead used the golden rule, based on the fact that the son was indeed the murderer of his mother, and the court wasn't willing to let the murderer gain from his crime.

Advantages Of Golden Rule Of Interpretation

1. It gives the courts power to avoid absurdity thereby eliminating injustice.

2. The golden rule helps closing the loopholes.

3. It provides a check on the strictness of the literal rule.

Disadvantages Of Golden Rule Of Interpretation

1. The judge is given power to amend a statute by reading it differently though logical.

2. Interpretations using golden rule is unpredictable.

3. It empowers the judge to change the statute's meaning in very specific circumstances only.

Case Law

In Tarlochan Dev Sharma v. State of Punjab, the phrase 'abuse of his powers' was used in the expression "abuse of his powers or habitual failure to perform his duties" in Section 22 of the Punjab Municipal Act, 1911. The Supreme Court stated that when choosing a word from a list of alternatives, the context must always be considered. In this context, the term "abuse of power" refers to an intentional abuse or a willful wrong. A legitimate but inaccurate exercise of authority or inaction is not an abuse of power.

The Mischief Rule of Interpretation

The mischief rule focuses on determining the intention of lawmakers during the interpretation of statutes. It originated in the United Kingdom in the 16th century and was established in Heydon’s case. It was held that the primary aim of interpreting a statute should be to identify the “mischief and defect” that the statute intended to address and provide an effective remedy. This rule seeks to answer the question of what problem the previous law failed to cover, leading to the enactment of the statute in question.

The famous Heydon’s Case (1584) outlined four points to be considered when interpreting a statute:

1. What was the common law before the enactment of the statute?

2. What was the “mischief and defect” that the common law did not address?

3. What remedy did the parliament intend to provide to rectify the problem?

4. What is the true reason behind the remedy?

Advantages of Mischief Rule of Interpretation

1. Flexibility in determining the lawmakers’ intent

2. Removes being strictly bound by the literal and golden rules of interpretation.

Disadvantages of Mischief Rule of Interpretation

1. It introduces uncertainty into the law

2. Grants excessive power to unelected judges, which is seen as undemocratic.

3. It is considered outdated as the common law is no longer the primary source of law.

Latest Case Law

In the case of Novartis Ag v. Union of India (2013), the court stated that the most effective means of ascertaining the meaning and intent of a statute is through the mischief rule. For patent law in India, this ruling is especially significant.

Reddendo Singula Singulis

Q. Explain "Reddendo Singula Singuli" doctrine. [10 marks - 2023, 4 marks - 2019]

Reddendo Singula Singulis

The reddendo singula singulis principle concerns the use of words distributively. Where a complex sentence has more than one subject, and more than one object, it may be the right construction to render each to each, by reading the provision distributively and applying each object to its appropriate subject. A similar principle applies to verbs and their subjects, and to other parts of speech.

This rule has been applied in the case of Koteshwar Vittal Kamat vs K Rangappa Baliga, AIR 1969, in the construction of the Proviso to Article 304 of the Constitution which reads, “Provided that no bill or amendment for the purpose of clause (b), shall be introduced or moved in the legislature of a state without the previous sanction of the President”. It was held that the word introduced applies to bill and moved applies to amendment.

Doctrine of 'Noscitur a sociis'

Q. Discuss the doctrine of "Noscitur a sociis". [10 marks - 2023] Q. Explain "Noscitur a Sociis" [4 marks - 2021] Q. Associated words take meaning from one another under the doctrine of 'Noscitus a sociis' " Discuss. [20 marks - 2019]

Doctrine of 'Noscitur a sociis'

Noscere means to know and sociis means association. Thus, Noscitur a Sociis means knowing from the association. Thus, under the doctrine of “noscitur a sociis” the questionable meaning of a word or doubtful words can be derived from its association with other words within the context of the phrase.

The maxim "Noscitur a sociis" is the principle of construction (or interpretation) of statutes and other documents that the meaning of words should be identified by reference to other words in the context of which they appear.

The applicability of this rule of interpretation arises when a word or phrase in question cannot be interpreted in isolation and requires the words that surround it to also be understood in order to better grasp the concept.

The scope of this rule of interpretation is limited, for it can only be applied in the circumstances where the law was either not clear or it was ambiguous.

In State of Assam vs R Muhammad AIR 1967, SC made use of this rule to arrive at the meaning of the word “posting” used in Article 233 (1) of the Constitution. It held that since the word “posting” occurs in association with the words “appointment” and “promotion”, it took its color from them and so it means “assignment of an appointee or a promotee to a position” and does not mean the transfer of a person from one station to another.

Contemporanea Expositio

Q. Contempranea expositio will not always be decisive of a question of construction. Discuss. [10 marks - 2023]

Contemporanea Expositio

The maxim Contemporanea Expositio holds that a construction which has been long adopted and publically acted upon, will not be lightly disturbed by the courts.

The rule of construction by reference to ‘contemporanea expositio‘ is a well established rule for interpreting a statute. This rule has been clearly expressed in Crawford on Statutory Construction (1940).

The validity of this rule was also recognized in Baleshwar Bagarti, where Justice Mookerjee states “It is a well-settled principle of interpretation, Courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it” and this statement of the rule was quoted with approval by SC in Deshbandhu, [1979].

Casus Omissus

Q. Explain the rule of 'Casus Omissus'. [4 marks - 2023]

Casus Omissus

The Latin phrase 'Casus Omissus' means case omitted. It is such a situation which is not provided for by a statute or contract and therefore governed by caselaw or new-judge made law.